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September 22, 2018

Law Making and the President (and Governors) i


There was some surprise that the President signed the Bill passed by Parliament limiting bank interest rates. Surprise mainly because business, and economists, had generally argued that the Bill was not business friendly. The surprise may also have been heightened by recalling President Moi’s veto of the “Donde Bill” —also trying to limit interest rates—in 2001.

President Kibaki also sent back Bills. The veto of the Indemnity (Repeal) Bill in 2010 defeated the efforts of Kenyans who had struggled to remove impunity for the treatment of Somali Kenyans during the so-called “shifta war”, including the infamous Wagalla massacre. Not perhaps a good precedent.

One purpose for or a new constitution was to move away from the “Imperial Presidency” —Kibaki’s phrase—meaning a president with too much power and not enough “checks and balances”. A presidential system was imposed on Kenyans by the Parliamentary Select Committee and the Committee of Experts in the closing moments of the constitution drafting process. But the justification for basing our system on the US one, was that it has plenty of controls on the powers it grants, including to the President.

Our Constitution says that the President can sign the Bill, or refer it back to Parliament “noting any reservations that the President has concerning the Bill”. So he usually just objects to some specific points.

The US President’s veto applies to the entire Bill. If Congress (the US legislature), while debating a Bill, strongly disagrees with what it understands are the President’s views, members may try to calculate how far they can depart from those views before he will exercise the veto. Negotiations take place between the executive and Congress, sometimes to the extent that members are promised certain benefits for their constituencies — not for his or her own pocket.

Congress sometimes tries to resist the President’s veto by re-passing the law in its original form, by two-thirds of its members. It succeeds in rather less than half its attempts. Less important Bills before the US Congress are usually killed off by a veto.

But if a Bill is vetoed, even if Congress has had a change of heart, and is prepared to go along with the President, the Bill remains vetoed, and must be passed afresh.

Our procedure is different. Under the old Constitution, before 2010, Parliament could, apparently, make changes in the President’s recommendations and send the Bill back. Presumably the President could again reject it. In reality this did not happen, because Parliaments were rather tame, and dominated by the President. In fact, Moi’s rejection of the Donde Bill was the first ever!

Under the current Constitution, to change the President’s recommendations needs the support of two-thirds of the National Assembly (and of the Senate if the Bill concerns counties). Though sometimes members have argued that Parliament should stick to its guns, they have never succeeded in getting the two-thirds.

He has rejected some provisions because he considered the country couldn’t afford them. Under the old constitution this would not happen. Bills requiring payment from public funds could not even be introduced without the recommendation of the President. The drafters of the current constitution deliberately gave Parliament a bigger role in finance related law than in the past. But certainly there needs to be some check on Parliament and one such check should be the executive, which should have a clear idea of our national financial situation. In fact the views of the Cabinet Secretary for Finance are supposed to be taken into account; this must mean taking them seriously.

The President (and Governors) have sometimes recommended not just deletion or change of what was in the Bill, but introducing new provisions. Objectors argue that this defeats constitutional provisions about transparency and public participation, and breaches the separation of powers under which Parliament makes law, and the executive, headed by the President, carries it out. The procedure is quite unlike the US one where even to agree with the President Congress has to debate the whole Bill again, from scratch. The Kenyan Parliament usually discusses the issues briefly, and has one vote (or one in each house). What happens in reality is that MPs rather tamely change the Bill to reflect the President’s views. So the President really does become a law maker. And public participation is non-existent.

The Speaker of the National Assembly saw no problem with this. He suggested that the President’s power was like that of MPs - to introduce a proposed change at a late stage in the process, rather as committees introduce their proposed changes late in the day (sometimes on the last day of processing the Bill).

The Speaker also insisted that the President’s limited powers to make law are part of the checks and balances in the Constitution, and do not go against the principle of separation of powers.

The Senate’s rules of procedure say that if Senate did not consider the President’s memo, it is treated as accepting the memo. The Speaker of the Senate ruled that this is unconstitutional: Senate cannot be assumed to have done something it has not done.

But suppose Parliamentarians do consider the President’s views but cannot get either a simple majority for his views or a two-thirds majority to reject those views? The Senate Speaker suggested that if it proves impossible to reach agreement between the executive and the legislature, this might mean the life of the Bill comes to an end until Parliament reintroduces it. The problem is that the Constitution does not say this, but seems to suggest that the only possibilities are to agree straight away with the President, or to disagree with his suggestions wholly or in part, in which case two thirds of members must take the same view. This is very unsatisfactory.

Some of our President’s recommendations have involved radical changes in Bills passed by Parliament. His proposed changes to the Bill to amend the Kenya Information and Communications Act removed some provisions and made the relevant Board more independent of both executive and Parliament. And he significantly reduced possible fines for journalists. But his memorandum to change the Public Audit Act decreased the power of that independent office to negotiate its own budget with Parliament. And he insisted that the Auditor General should not be able to question government policy – a new provision.

The issue is not whether the President’s ideas are good or bad. It is how far it is right for the President to change the decisions made by Parliament, elected by the people to make law. And if the President has views, as he is fully entitled to have, should he not try to get those views fully debated in Parliament when the law goes through the first time? Doesn’t this system give the President a remarkably privileged opportunity to get his views made law?

Some Bills President Kenyatta has sent back had minor technical flaws. Some flaws had been detected in Parliament but too late to be changed, so the President was advised to send the Bills back. This should not happen. We need Parliament to think through issues more clearly, in order to make fewer mistakes and also perhaps to have more commitment to what they have decided.

Finally, CORD went to court last year, arguing that the President had misused the constitutional powers in nine instances of refusing to sign laws. In April this year, Justice Lenaola referred the case to the Chief Justice to appoint a larger bench to hear the case. Apparently the case is coming up before the court this month, so maybe some of these issues will be resolved.

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