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Constitution of Kenya Review Commission |
By The Hon. Peter Oloo Aringo, Egh, M.P Vice Chairman Parliamentary Service Commission.
11-09-2001
INTRODUCTION
Mr. / Madam Chair, Distinguished Commissioners, Ladies and Gentlemen,
I must admit that I was a little bit excited to be with you here today to share with you some ideas I have about our Parliament and Government. As a politician for about three decades, it is even more exciting to address some of the most eminent lawyers in our country who, as Commissioners now, have an extremely important task to carry out on behalf of Kenyans. I wish you the best of luck in your assignment.
That said, let me tackle directly the topic you requested me to talk on.
THE ORIGINS OF GOVERNMENT
I would like to begin by undertaking a very risky enterprise, defining the word Government. The word Government may mean different things to different people at different historical times.
But crudely, the Government is that organ of state whose duty it is to carry out the day today administration of the state. The state is a geographical reality having definite boundaries recognized by all nations, Governments and states in the world.
What does the day today administration of state involve? Keeping law and order to safeguard the security of individuals living in that state and their property. It has been said for the umpteenth time that this constitutes the primary duty of Government.
To keep law and order is not a simple thing. What many countries have ended up doing is to keep order without the law. Those perceived to be opponents of the state are ruthlessly punished, silenced or liquidated and the rationale is to serve as a deterrence for those others who might dare. In other words, the use of terror to silence critics of the Establishment might appear to be a very normal thing because the result is "order", "peace" and "stability"!!!
Unfortunately, this is how many states were created. Whoever was the ruler was to be absolute. Anybody questioning the power structure was to be destroyed. And in order to ensure this was done, monarchies were established so that the ruling elite could be from one group of people related by blood. They would get posted as governors and princes in charge of the various administrative units of the Kingdom or Empire. Laws were made by the King. He is again the person who enforced those laws. And anybody accused of breaking the law would be arrested and prosecuted with the King sitting in judgement. Talk of absolute power!
In other words, the Government personified by the monarch used to perform all the three separate functions which today are performed by three different organs of Government. In a Parliamentary system of Government, therefore, Parliament makes laws, the Executive enforces the laws and the Judiciary adjudicates on the conflicts that arise between the individuals that the Executive allege have transgressed the law. In order for the accused to get a fair trial, the Judiciary lust be independent and impartial when executing its mandate as provided under the Constitution.
The Parliamentary system, however, has not solved the perennial problem of the separate functions of the three organs of Government. How separate should they be? In the United Kingdom, for example. Parliament is defined s the House of Commons, the House of Lords and the Queen (the monarch). Yet, the highest court in the United Kingdom is Parliament by virtue of the Law Lords being Members of the House of Lords. The link between the Judiciary and the Legislature in the U.K. is therefore real and strong and you cannot speak, on a serious note, about the separation of powers between the Legislature and the Judiciary even if this link only exists the highest level.
What about the Executive and the Legislature? The Queen of England appoints the Prime Minister from among the leaders whose Parliamentary party has the largest number of seats. Once appointed, the Prime Minister heads the Government. He appoints his Ministers, approved by the Queen, who sit in the front bench in the Legislature to dominate and control the legislative process. The link between the Legislature and the Executive is therefore not only strong and permanent but is a political reality that any elected Government in the Parliamentary system is always keen to enjoy.
This is the situation that obtains in Kenya. Our Parliament is defined in section 30 of the Constitution as comprising Members of the National Assembly and the President (who heads the Executive and appoints Judges of the High Court including the Chief Justice).
Why does the President form part of Parliament and that without him, actually, there is no Parliament? The answer is in section 46(2) of the Constitution which gives him power to assent to Bills. Bills passed by the National Assembly cannot become law until and unless the President gives his assent. That is why we talk of an Act of Parliament, not an Act of the National Assembly. The Legislative function of elected Members of Parliament is incomplete without the President.
But alas! The Queen of England is not a Member or Parliament while the President of Kenya is. Indeed, the President of this country cannot assume office even if he won the majority vote but lost his constituency seat. Critics of our system have always charged that our President enjoys the privileges of the English Queen and the rights of the American President without any provisions in our Constitution explicitly instituted to check those privileges and rights. Parliament is merely meant to bring Government to account and not the President.
[n the Commonwealth political parlance, the word Government refers to the so-called ruling party. The party in the House with majority seats forms the Govenment. Any other parties in the House are thus opposition parties whose main aim is to battlethe ruling party in and out of the House so that come the next general elections, the government may be changed at the polls. Which should remind all of us that free and robust debates that take place in Parliament per se cannot be the only yardstick of democracy. Those who seek to obtain power must be protected by the law to propagate their ideas to the electorate through organized public rallies.
In our Parliamentary system of Government, therefore, the word Government can be very divisive. You either support or oppose, it is "us" against "them". Small wonder, the KANU/NDP proposed merger is raising several strong eyebrows, so to speak.
Just for the sake of comparative analysis, let us scan for a moment the Congressional/Presidential system in the U.S.A.
The political parlance in the U.S.A. does not attribute the same meaning, reaction and emotion to the word Government. While it is common and normal to speak about the Conservative Government under Margaret Thatcher or simply the Labour Government in the U.K., in the U.S. the standard appellation is, for example, the Kennedy Administration, the Nixon Administration, the Carter Administration or the Reagan Administration. The word Government is always inclusive because it is the American Government, not the Nixon or Democratic Government. What might change in the U.S. after a Presidential election is the administration of the Government.
But the meanings attached to any word depend on the cultural environment. In the House of Representatives and in the Senate the Party with majority seats is simply called the Majority Party and with minority seats the Minority Party. The Administration is formed by an elected President who is not a member of the Congress. He appoints Ministers to help him in executing his duties and these Ministers are not members of the Congress neither do they sit there.
The Founding Fathers of the United States contrived to perfect the separation of powers principle so that the President heads the executive Government, and the work of Congress is to legislate. Certain senior positions in the Government including Ministers can only be occupied by people nominated by the President but confirmed in their appointments by the Senate. The same thing is true of senior appointments in the Judiciary. Several times in American history, a President whose party is a minority both in the House of Representatives and in the Senate has successfully ran the Government although not without some teething problems. The Congress of the United States is the purse holder. The powers that Finance Ministers have in Commonwealth countries is unknown in the U.S. The Congress makes its own budget for the Executive and negotiates with the Executive regarding their priority of expenditure. These negotiations are held with each head of a Department. The Minster for Finance is only in charge of helping in designing policies and priorities of an Administration in incurring expenditure.
THE ORIGINS OF PARLIAMENT
The British Parliament has the most documented history dating back to almost a thousand years. It is hence regarded as the mother of Parliaments.
But the Parliament of England started from very humble beginnings. The King of England was in constant need of funds - those days called tributes -to finance his wars overseas. The Barons in England would therefore be summoned by the King to appeal to them to bring more money to pay the army. They would meet the King and agree how much tribute each one of them would bring to the crown.
That is how Parliament sourced its power to authorize taxation. And because these Barons would bring the money from their subjects, they were keen to see the results their tributes brought to the Kingdom. You can also see the origin of the authority of the Government to propose taxation. It is the organ with the mandate to do what it promised the voters and therefore should come to Parliament with concrete proposals how it proposes to raise the revenue to finance public expenditure.
As the King became more busy, he needed to have a trusted Minister who would look after the affairs of the Government so that when the Barons come, there would be a competent man to answer their questions. This was the emergence of the Crown's Minister variously called the Prime Minister, Chancellor or Chancellor of the Exchequer.
But there was another silent revolution taking place in England. Several rich people whose wealth was derived from overseas trade(including slavery) did not belong to the landed gentry and therefore could not be Members of Parliament. Since their wealth qualified them to rub shoulders with the Establishment, the House of Commons was created to take care of such people. The House of Commons became elective and assumed special powers on money bills and other bills having something to do with taxation.
From the beginning, therefore, Parliament in the U.K. was a special club where leaders would come and debate any issue concerning their society. It did not even have written rules of procedure, i.e.. Standing Orders, until about 140 years ago.
But the Industrial Revolution in Britain changed the informal club nature of debates in the House. The Government of the day had to pass urgent laws to govern new investment in public infrastructure (the canals and railway-
lines), town planning and land use systems, etc. Control of the legislative timetable and calendar, therefore, came to be very important. Irish Members were also involved in ceaseless filibusters in the House and all this was meant to either delay or block legislation. But this topic is outside the scope of this paper.
THE ROLE OF PARLIAMENT
As we observed from the beginning, there are three branches of Government, i.e., the Executive, the Legislature and the Judiciary. Let us now turn to the role of Parliament as an organ of Government.
The Constitution of Kenya gives Parliament legislative power (section 30) which it exercises by Bills passed "by the National Assembly" (section 46
(1). Section 47(1) of the Constitution gives Parliament power to alter the Constitution while section 59(3) gives it power to remove "the Government of Kenya" from office by passing a vote of no confidence in the Government.
These are enormous powers by any standards. Why did the Constitution give Parliament such powers?. My humble submission is that sections 31 and 32 of the Constitution should be read very carefully so that the legitimacy of Parliament and its supremacy in law making could be well understood.
Sections 31 and 32 of the Constitution deal with the election of Members of Parliament, the division of Kenya into Constituencies for the purpose of electing Members of Parliament and the qualifications a citizen must meet in order to be registered as a voter.
In modem political philosophy, Parliament is not sovereign. During the era of Enlightenment in Europe, monarchs say/ themselves as Divine appointees and ipso facto were the sovereigns. Today, it is the people who are sovereign but Parliament is only supreme in so far as its law-making role is concerned. Parliament is therefore a creation of the people and its major role must be to guard and protect the sovereignty of the people who elected it.
The authority of Parliament is thus derived from the sovereignty of the people. Members of Parliament are those citizens who risked allowing their names to appear on a ballot paper. The voters from every comer of the country turned out in large numbers to vote for a representative who would listen to their grievances against Government inaction and excesses, misuse of public resources, bureaucratic inertia, misadministration, etc, and speak out against these vices on their behalf. Let it be admitted even grudgingly, there is no group of Kenyans today who enjoy this kind of mandate from the citizens.
That is why the Constitution so jealously and vigorously protects the right of an elected Member to stand up in Parliament during debate and speak up his/her mind without fear of legal redress. The framers of our Constitution believed that a Member needed these rights, privileges and immunities so that he/she might go about his/her job of representing the public unimpeded. Laws that are made in this country must be brought to Parliament for a thorough and fearless debate because a people can become vulnerable and poverty-stricken due to the weak, defective or harmful laws that exist in their statutes. Parliament must remain firm in its role of probing Government activities so that those who occupy public offices are individuals who are finally accountable to the people on whose behalf they have been given those offices to hold.
What about if Parliament, instead of being the game warden to guard the game, turns to be the poacher, by being corrupt and passing laws that Members have been paid by an individual to pass?. This may look remote but democracy in every country has come a long way. How do we ensure that we do not elect miscreants to Parliament, individuals who behave like mercenaries?.
Elections. They must be held regularly, under transparent conditions in an even playing field. Civic education is still a major issue in the United States. It is encouraged by the Government. Our people must be taught the role of an M.P. Elections must be free and fair so that by and large, their results represent the views of the general public. Elections should not be held just to endorse the Government in power.
Neither should they be regarded as a formality or ritual meant for the incumbent Government to be seen to be renewing its mandate. On the contrary, elections should be serious contests where ideas are let loose in the political market place and the victor is decided upon under transparent rules, in this country we do not have rules that control or prevent monopoly media ownership, use of money during elections to gain unfair advantage, etc. This situation must be corrected.
CONCLUSION
Democratization has become contagious all over the world. It has made people to be known as citizens with rights provided in the Constitution, not subservient subjects of a monarch, emperor or some silly dictator somewhere in a corner. Once people taste the fruits of democracy and freedom, their demands do not become less. Instead, democracy and freedom open more opportunities even for conflicts.
But the beauty of it all, a people who want to live in a democratic environment must be prepared to negotiate, debate and hold dialogue on all issues that concern their governance. People who hold the reins of power must do so by consent of the governed obtained in a fair and free elections.
This Commission is a very sincere attempt by the people of Kenya to start cultivating a culture for dialogue that will bring greater freedom and understanding among themselves. For a longtime, the Kenya Parliament, in the form of a few gallant Members, stood up to demand that serious issues concerning governance of the country be addressed. On several occasions in the past, these gallant Members were silenced through detention without trial, etc. The Executive arm of the Government spread its tentacles like an octopus to every aspect of life in this country.
The democratic space was seriously limited. Being a good Kenyan meant you were to be a conformist, see no evil, utter no criticism, etc, against the Government. Finally, I want to salute Kenyans from various walks of life whose thirst for democracy and freedom have made us see today when all of us are involved in playing a vital role in making the institutions of this country to work for the benefit of our people. The price of freedom is enternal vigilance.
This Commission must assist Kenyans to create institutions that will perpetually ensure that the dignity of our people cannot be negotiated with any Government in power. It is the duty of the Government to ensure that the people who elected it into office live decent and respectable lives.
In conclusion, Parliament can only be empowered to be a useful organ of Government if the people of Kenya are empowered to elect a Parliament which will take all the risks needed to stand up for the people's right to be free. This is because freedom is never free. It is when we fight for it that we shall know how precious it is so that we have to guard it all the time.
Thank you.