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Organs Of Government - The Executive And Public Service Needs

By Saulo Wanambisi Busolo

11-09-2001

Paper for The Constitution of Kenya Review Commission Workshop on the Interpretation of its Mandate.

ORGANS OF GOVERNMENT – THE EXECUTIVE AND PUBLIC SERVICE NEEDS

The executive is one of the official policy-making agencies of modem governments established by a constitution.

In a properly run community, the citizens establish a constitution that

(a) Stipulates what the whole government may and may not do and what powers the government will have and

(b) Establishes certain government agencies as well as providing procedures for selecting their members and

(c) Allocates certain powers to each agency.

Since the 17th and 18th Centuries, a group of influential political theorists including John Locke, the Baron de Montesquieu, Jean Jacques Rousseau, Thomas Jefferson and the authors of the Federalist developed a new conception of the governing process in which the legislatures legislate, the executives execute and the judges adjudicate.

These political theorists further argued that any concentration of powers in a single agency is tyrannical no matter whether that agency is an elected and responsible representative assembly of an irresponsible hereditary monarch. Only genuine separation of powers, it was felt, protects the liberties of people against the aggressions of government.

In Presidential democracies American style, the three types of powers are kept formally separate by two main devices

(a) the separation of personnel and

(b) checks and balances.

In contrast, parliamentary democracies, British style, operate on the principle of "the fusion of powers", i.e. the constitution stipulates that the executive, the cabinet, the ministry and the prime minister will hold office only as long as it "holds the confidence of a majority of the legislature".

Most contemporary political theorists regard the 18th Century Enlightenment Philosophers' classification of the powers of government as inadequate and misleading. Today legislative bodies often engage in executive activities i.e. investigation of wrongdoing in government; courts often make law as in their interpretations of constitutions and statutes while executives and administrative agencies often make and interpret laws in addition to enforcing them.

In the scheme of separation of powers, clarity over bureaucratic power is not clear either This power is neither legislative nor judicial. Therefore it must vest in the executive This brings to the fore the problem of conceiving the separation of powers conceived as ;

doctrine of democratic responsibility and the same conceived as a doctrine of functional specialization.

Under these circumstances the President as the most powerful politician in the land is , principal threat to the separation of powers when considered as a doctrine of functional specialization. Vested with "all executive power" the President has broad discretion in managing bureaucracy in any way he likes. He can for instance call up a middle level bureaucrat but not a judge about a pending court case!.

Similarly as Parliaments decline in power, legislative functions have been partly

transferred to the executive branch as seen by the importance of delegated powers which allow the public administration to set regulations. Laws promulgated as guidelines o decrees issued by the executive also point to this delegation of law making authority. Even bills passed by Parliament are generally prepared and proposed by the govemment

In essence many tasks labeled legislative in character have become executive in locus.

Parliament not only has lost power as in the case of lawmaking but also in nations budgeting. The main purpose of legislative bodies has traditionally been the adoption of the budget but they have gradually given up this prerogative. The job of preparing the budget falls on the executive which in turn leans on bureaucrats. Members of Parliament do not have the right to propose amendments which would increase public expenditure or decrease revenues.

Even in economic planning. Parliament lacks necessary technical means for controlling national economic plan. The lateness of Parliamentary involvement in the decision making process demonstrates that the agencies which closely participate in drawing up the plan i.e. the executive, have more influence than the body which must approve it.

Likewise in the management of public and privatized industry managers are usually chosen from among the senior civil servants not politicians or business people.

Briefly put, a double transfer of power has taken place; from Parliament to the executive and from the executive to the top civil service. Constitutionalists should therefore extend their thinking to embrace the distinctive structural problems involved in controlling the bureaucracy as a forth branch of government.

Indeed lately, it has been established that bureaucracy cannot work if bureaucrat decisions are up for sale to the highest bidder. But neither can elected politicians I trusted to get serious about corruption. As a result, there has arisen a need for a special article in modem constitutions to create a separate institution, the integrity branch that would check and balance these corrosive tendencies. A failure to control corruption undermines the very legitimacy of democratic government.

The inclusion of women's voices in the politics of government has proved a more difficult challenge. Out of 191 countries worldwide, only nine currently have a woman elected head of state or government. In a male-

centric world, the male standpoint on governance dominates our societies Kenya inclusive in the form of the objective standards. Isn't there a need now more than ever to recognize officially the gender dimension in governance that may lead to the construction of a gender branch?

Equally important, transparency and accountability in elective and other governmental agencies require abilities to assess official conduct. The standard component in controlling the exercise of public power by officials on the other hand needs freedom of information laws. This means the media as another branch requiring of power autonomy.

Be that as it may, how do we map out what has been said so far from the point of view of our history and the structure of society? The root problem here really has to do with a model of governance structure informed by the industrial age. The current digital age spawns transformations at all levels of governance as follows:-

Industrial age Digital age

Democracy Representative Participatory

Citizens Passive consumers Active partners Politics Broadcast, mass, class One - to - one

Polarized

States Mational, monocultural Global, local, virtual, multicultural

The demise of representative democracy together with its traditional party system also signals a shift in the movement of constitutionalism associated with equality of independent, self - governing national - states and the equality of individual citizens to politics of cultural recognition sensitive to the multiplicity of differences i.e. marginalized peoples such as the Okiek, Women, linguistic and ethnic minorities, inter-cultural groups, suppressed nationals and supranational associations.

FORMATION OF THE EXECUTIVE

Citizens are usually presented with the opportunity to go to the polls at frequent or fixed intervals to elect at local, national and supranational levels a host of legislators, executive heads and in some cases, judges.

In this case the electoral system performs two functions:-

1. Through election of Parliament it is expected to produce a government;

2. Through a purported democratic franchise and mode of election, it is expected to confer legitimacy upon the government to govern

Utilizing the Kenyan case of first - past the - post plurality method of election in single -member constituencies, it has been argued that it does not allow realization of the principle of one person, one vote, one value".

Furthermore given the difference in the spread of support between the parties, one party has got more votes than its opponent parties in some areas but has had fewer seats. Relatedly the plurality system of voting seems to work against third parties. Electoral results in Kenya thus tell a story of unequal representation especially of women, youth and regions.

In 1997 for instance a party that received 38.6% of the votes in the General Elections obtained 51.0% (107 seats) representation in Parliament. Under a proportional representation system with a threshold of 10,000 votes, that party could have won only 81 seats.

The legitimacy of the Kenyan electoral system and that of the executive it produces remains under question.

Besides the electoral system. Parliament in Kenya has been dubbed a place of no power. The executive still decides when to dissolve Parliament and call an election. The executive also controls the registration of voters through the issuance of personal identity cards and passports, the only documents valid for voter registration.

As has been stated, in proportion as the diversity of a system of election representatives is inadequate to represent the diversity of the people it governs, the more likely it is to be tyrannical.

DAILY LIFE OF THE EXECUTIVE

The President as head of the executive in Kenya could be considered as Chief of State, Chief Executive, Commander in Chief, Chief Legislature, Chief Diplomat, Party Leader, and Manager of Development.

Fundamentally, the executive plays two principle roles.

1. Chief of State i.e. the nations official ceremonial head and spokesman for its whole people.

2. Head of Government acting as a leader of those office holders who propose, direct and enforce the nation's public policies.

In Parliamentary democracies each role is performed by a distinctly different official or group of officials. In presidential systems both functions are performed by the same

Officials.


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