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Constitution of Kenya Review Commission |
By J.B.Ojwang Professor of Law & Dean Faculty of Law, University of Nairobi
15-09-2001
1. Introduction
A Constitution establishes the regulatory framework for political activity and the governance process in a country. One of the things it does it to establish organs of government, define their functions and specify their powers for the discharge of these functions.
Experience from all over the world, and from time immemorial has taught that three particular organs of government are the most basic. These are: the Executive; (b) the Legislature; and (c) the Judiciary. These organs correspond to the vital and most basic governance functions, namely (and respectively), (i) the conduct of policy and administration; (ii) the making or repealing or amendment of the governing laws; and (iii) the adjudication of conflicts that arise while the laws of the land are being implemented through executive and administrative decision-making or action.
Although all Constitutions will provide for the three organs, their functions and powers, the Constitutions of different countries thereafter take different approaches, as some may go further and provide for additional governance -related organs. For example, the Ugandan Constitution provides for a further constitutional organ, known as the Inspector-General of Government, as does that of Tanzania , which provides for the Permanent Commission of Inquiry - both being nomenclature describing the Ombudsman institution.
The current Constitution limits itself to the three basic organs of government. In this paper we consider the broad outlines of these organs of government.
2. The Executive Organ
The Executive under the Kenya Constitution started off with a dual character, under the Independence Constitution in 1963. The day-to-day operation of government was conducted under the direction of a Prime Minister, who was the leader in Parliament of the political party with the largest number of seats in the house. The more occasional, symbolic and constitutional acts of government, such as formally naming the Prime Minister, proroguing or dissolving Parliament, were conducted by the Governor-General, representing the Queen of England, who operated in the capacity of Head of State.
The Executive organ was a diverse entity with a clear scope for checks-and-
balances. This feature, however, was taken away with the inauguration of Republican status on December 12, 1964. The advent of the Presidency severed the political link between Kenya and Her Majesty the Queen's Government in the United Kingdom. Henceforth, the Executive of the Kenyan State consisted solely in the President, who was his own Prime Minister while in his other capacity, he was the Head of State and Commander-in-
Chief of the Armed Forces. An unqualified monolithic structure was thus installed upon the constitutional system.
If this monolithicism was at first essentially instrumental, it was to be confirmed in place, firstly by the changed politics that brought the single party system, and then by a series of amendments that enhanced and consolidated the executive powers of the President and gave him the upper hand in his interplays with the Legislature. In the few years following the establishment of Republican status, all the main elements of diversity in the constitutional system, such as the semi-federalist structure and the bicameral Parliamentary system, were removed and the outstanding and greatly empowered profile of the President, became the main landmark of the constitutional order.
Those who have paid keen attention to the more recent political changes in Kenya will readily recognize that, it is precisely the monolithicism of the immediate post-independence years that prompted the public to initiate clamours for change, leading to the re-introduction of the multi-party system and a re-dedication to the principle of pluralism.
Against this experience, it may now be regarded as a basically valid proposition that the people of Kenya are likely to support enlargement of the number of participating agencies in the stall of the Executive.
However, the present Constitution of Kenya retains the limited - scope Executive; and this will necessarily be a subject in respect of which the Constitution of Kenya Review Commission should receive the opinions of the members of the public.
Issues pertaining to the ideal characteristics of the Executive must also address its interplays with Parliament. The term Parliament means all the elected and nominated members of Parliament, taken together with the President as Head of State; for it is only this whole institutional chain that can make and compete the law-making process. But the person who is President, by virtue of being an ordinary Member of the National Assembly as well as the Head of Government, also belongs to the National Assembly qua member and qua Head of a government (in effect, a Prime Minister) who is accountable on the floor of the National Assembly. The effect is that Kenya has a Presidency that is inseparably fused with the National Assembly. This is a classic example of the absence of separation of powers.
The Executive's intimate fusion with the National Assembly may be said to be normal in a parliamentary tradition of government. However, there is the significant difference that the President has, besides, been directly elected by the people, and often feels himself more accountable to the people (at election time, once in five years) more than to anyone else. This produces a duplicity in lines of responsibility, and considerably weakens the National Assembly's scope for exercising control over executive powers. It is desirable that this duplicity be removed, in a quest for governmental accountability, transparency and constitutionalism. The Commission needs to address this question and if need be, make appropriate consultations with the people.
3. The Legislature
In the rapid constitutional amendment process of the 1960s, the preoccupation with the enhancement of the power of the Executive not only achieved that goal, but also entailed the reduction in the size and strength of the legislative body. Under the Independence Constitution there had existed a House of Representatives and a Senate, the latter forming part of the package of institutions attached to the semi-federal constitution. Now the Executive in the first place did not allow funds to be disbursed for the running of the semi-federal (Regional) agencies; and then the Executive secured the abolition of semi-federalism through a constitutional amendment. Soon thereafter the Senate was itself abolished, again through a constitutional amendment. No check-and-balance institution was left to limit the free reign of the Executive, which became still more powerful, in particular, owing to the removal of 1969 of the political context of pluralism, by abolishing the Opposition Kenya People's Union. Kenya thereafter remained a one-party State {defacto, 1969-1982; dejure/ 1982-1992). This condition greatly weakened the strength of the National Assembly which now, in the totality of its membership, had always to take the line of the single party, KANU and, therefore, had no capacity to assert any real control on the Executive.
As the strength, and check-and-balance capacity of the Kenyan parliament rests on the scope for the existence of differing opinions and the free play of voting alliances on the floor of the House, it follows that the National Assembly was no longer able to serve as an effective power-control institution.
The Commission should share thoughts with the people on the suitability of the parliamentary system for Kenya. If it is agreed that this constitutional system is an essential part of the country's constitutional heritage, or that it is intrinsically good for Kenya, then a further question to be asked is whether it is agreed that Kenya must remain committed to multi-partyism and to political pluralism. If the people consider that a strong parliamentary institution is desirable in Kenya's quest for constitutionalism and the rule of law, then there will be a duty to put in place a Constitution in the liberal tradition associated with the older members of the Commonwealth. Such a Constitution would provide for the freedoms of assembly and association, for the recognition and acceptance of multi-partyism, for the full accountability of the Executive to Parliament, and for some of the usual conventions of the Parliamentary system, such as the censure or no-confidence vote in Parliament leading to the fall of the government; the practice of ministerial responsibility; etc.
The Commission may indeed want to elicit the people's opinions on the best ways of strengthening Parliament, e.g. by abolishing the nomination of a section of the MPs; by enhancing the controls by Parliament in respect of matters such as public finance; etc.
4. The Judiciary:
The Kenyan Judiciary, in its essential character, has three tiers: the magistracy at the bottom level; the High Court in the middle; and the Court of Appeal at the top.
There has been some debate on the possibility of establishing a Supreme Court. The Commission could put this before the people for an opinion. If a Supreme Court were put in place, how would it relate to the Court of Appeal? What specific functions would be entrusted to the Supreme Court? What would be the size of this court? What would be its primary functions.
It would be necessary to resolve the question as to the role of the Supreme Court in constitutional interpretation. Today, it is the High Court that is regarded as the Constitutional Court. So, what is the position of the Court of Appeal in relation to constitutional matters? Ought the Supreme Court not to be the ultimate Constitutional Court?
The Commission may wish to take up with the people the question as to what should be the role of the Executive in the affairs of the other organs of government, in particular the Judiciary. Is the current procedure of appointment of judges acceptable? What of the procedure for removing them? What role should the Executive play in the appointment or dismissal of judicial staff? What are the best ways of assuring the independence of the Judiciary? Should Parliament be given a place in the appointment process for judges? How should competence and impartiality be assessed in the Judiciary? In what ways can the Judicial process be made more accessible to the people? Ought there not to be a clear Constitutional recognition of legal aid, as an empowering scheme for allowing the people greater access to the Judicial process?
5. New Organs of Government
Since the Commission has a mandate to seek greater constitutionalism in Kenya's governance system, it will need to submit to the people the question whether more organs of government should be established. In particular, the Commission should canvass the people's views on the institution of Ombudsman. This organ, by whatever name called, serves as the poor person's lawyer and protector, by ensuring this person does not suffer harm at the hands of administration officials. The Ombudsman ensures that mal-administration (incompetence, delay, corruption, rudeness, discourtesy, high-handedness, abusiveness) is kept to a minimum, and that the ordinary citizen who requires assistance from government, is accorded that assistance.
The Commission should also address issues relating to Alternative Dispute Resolution, as a further avenue for giving the people more access to the conflict resolution facility.