Who Watches The MPs In The House?

The Star on 9 March ran a story headed: “MPs took cash to remove CBK Governor Name”. There is nothing novel here . Time and again MPs have been accused of taking bribes in return for their votes—including by senior parliamentarians, who know these things. Since this is Kenya, we can take it for granted that money changed hands and the Governor survived a proper scrutiny. And since this is Kenya, the voting was also heavily influenced by tribal considerations. .

This corrupt and partisan use of the parliamentary vote negates a fundamental assumption of the constitution—that the legislature is the primary institution for integrity and accountability. It vets appointments to key public offices and has the function to scrutinise the conduct of the executive. These are broadly political functions, suitable for the legislature. But in the case of the president and ministers, parliamentarians may have to determine whether there has been a violation of the constitution, national or international law, a task unsuitable for the legislature— and really more appropriate for the judiciary.

In some respects the Kenya legislature has even greater powers than the US legislature—including the power to remove ministers. These powers were given to it because it was assumed that it would be completely separate from the executive and would have a vested interest in holding the state accountable for its policies and acts. Alas, our legislature has never played that role—money and tribalism have dictated their votes. The National Assembly has become the most corrupt and irresponsible of all state institutions. —. How can parliamentarians, being so corrupt themselves, be expected to enforce integrity provisions on other public offices?

That the fidelity to their own interests is their first priority is shown by the way in which they have managed to render ineffective constitutional provisions for the recall of an MP by their constituency. The CKRC, at the request of numerous people, introduced the provision for the removal of an MP for failure to discharge their responsibilities. Recall is an example of people’s participation in safeguarding constitutional values—a sort of direct democracy. Another reason was to balance the increased powers given to MPs. The CKRC recall provision had sufficient safeguards against the abuse of recall, but was deleted at Bomas. However, it was retained in the 2010 Constitution, though without the procedure. leaving it to parliament to devise the grounds and procedure.

This parliament did in the Elections Act 2010 (secs. 45-48), making it extraordinarily hard to remove an MP. Recall proceedings can only be initiated after conviction by a court of violation of Chapter 6 of the Constitution, mismanagement of public resources, or an offence under the Elections Act. But the Act provides further steps before removal: a petition by 30% of the registered voters in the constituency which requires a vote of at least 50% of the total electorate—which means that in most cases it would be easier to win elections than to be removed! Nor can recall procedures be initiated before the expiry of two years from election as MP—not even if there is conviction for violation of Chapter Six!

This is not “recall” as it was generally understood by the people in Kenya—or elsewhere in the world. In Uganda reasons for removal include “deserting the electorate” or misconduct likely to bring hatred, ridicule or disrepute to the office. Here, parliament has, in violation of the constitution, effectively deprived the people of this right. The Act must be amended to restore this right to the people, making it easier to initiate recall proceedings, and deleting the requirement of prior conviction.

Recall procedures tend, however, to be beyond the resources of ordinary citizens. There is therefore a crying need for an alternative, which could be an independent tribunal as with the investigation of the conduct of judges and members of independent commissions, in this case perhaps appointed by the Chief Justice.

As for Governor Ndungu, there is another possibility to test his integrity. President Kibaki re-appointed him, after promulgating the constitution, despite scathing criticism by the Cockar Commission of his conduct in the sale of the Regency Hotel, for his constant misleading statements, contrary to section18 of the Public Officers EthicsAct, and his responsibility “for the disposal of the Grand Regency hotel in a secretive and questionable manner”. His re-appointment by President Kibaki’s was therefore unconstitutional.

Kibaki suppressed the report and attempts by an author of this article to obtain it from the then head of the public service were frustrated (both Kibaki and Mathaura were in breach of the constitutional provision on the right to information in hiding the report). The Cockar report is now available on the internet and a case has been filed by a citizen to challenge the appointment. The court must proceed speedily in view of the serious breach of the constitution—and not procrastinate as the court dealing with challenge to Tobiko’s appointment as DPP has done. Such delays show disrespect for the Constitution, undermine the rule of law, and perpetuate the waywardness of parliamentarians.

Yash Ghai and Jill Cottrell Ghai are the directors of Katiba Institute