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November 16, 2018

Open letter to MP Otiende Amollo and his colleagues

Then Ombudsman chair Otiende Amollo addressing journalists during his farewell party at Kenya School of monetary studies in Nairobi on December 16,2016.
PHOTO/ENOS TECHE.
Then Ombudsman chair Otiende Amollo addressing journalists during his farewell party at Kenya School of monetary studies in Nairobi on December 16,2016. PHOTO/ENOS TECHE.
Any remaining expectations of each new Parliament represent the triumph of hope over experience. Already, MPs have been rushing to claim a car grant before it is stopped, and planning expensive retreats to Coast hotels — with committee chairs and deputies flying first class, costing around Sh40,000.

Dr Otiende Amollo is one of the “new batch of MPs”.

An experienced and skilled lawyer, he played a major part in constitution making as a member of the Committee of Experts, and has headed the Commission on Administrative Justice (Ombudsman). He knows a lot about how government, including Parliament, is supposed to work, and also how the “shoe pinches” for ordinary people in their interactions with government through his Ombudsman experience: A very suitable person to be an MP.

So, why address him? Because, with other MPs, he told the Nation about his first reactions to being in the National Assembly. He complained that his considerable legal knowledge would be little used because everything would be decided by vote (and not, presumably, by virtue of its legal or constitutional value or compliance).

Unfortunately, all too many people, and even MPs, seem to have distorted views of what MPs are for. A few of the myths:

 

Myth 1: MPs have to make a lot of money because they have to give money to their constituents

This is a circular idea: MPs need a lot of money because they have to give to their constituents; people expect MPs to give them money (hospital bills, school fees, chai…) because, of course, they get a lot of money.

MPs should be paid well (and they are). They should also work hard. But one thing they should not be doing is giving money to their constituents. On this, Mohammed Ali (of Jicho Pevu fame, now MP for Nyali) is absolutely right. In fact, while it may be a worthy thing for the rest of us to give out of our private pockets to charity, MPs should not do the same. Unless they do it anonymously — which would defeat their purpose. The role of an MP is not to be a conduit for public money to private needs.

Any expenditure of public money should be in accordance with the Constitution: No discrimination (on any ground, including ethnicity, sex, political or other opinion). The expenditure should be subject to audit by the National Audit Office. If MPs give out public money (their salaries) this is bound to be an erratic process, influenced by the chance of who approaches them, even by favouritism, and unmonitored.

This is not what we pay them for.

 

Myth 2: MPs’ role is to develop their constituencies

We can see from candidates’ manifestoes that they imagine that this is what they would do if elected (presumably mostly through the NCDF). Like Myth 1, and for some similar reasons, this is also an error. We have civil services in the counties and national ministries. We have what used to be called the Provincial Administration. We, the taxpayers of Kenya, pay them to deliver services. They have (should have) the necessary skills and procedures for service delivery and development. They are supposed to act within a framework of national or county policy and within the integrity framework in the Constitution and the law.  And they cost us much less than MPs.

It is simply not the job of MPs to be overpaid administrators.

 

Myth 3: MPs don’t need any abilities and knowledge because their decisions are made by majority vote

MPs are our lawmakers. We need legislators who really understand how the law works (like Dr Amollo). Many legislators will find this hard — though they should make the effort to understand the purpose of the laws they pass. MPs who are lawyers (and economists, doctors, engineers or whatever) should consider it their duty to apply their skills, and assist their colleagues to understand the issues.

Many of our laws are very badly drafted. If unclear, inconsistent law emerges from Parliament this is not just the fault of the drafters. Law governs the lives of the people, and MPs have a responsibility to try to ensure not just that the policy is right but that its expression in law is as clear as possible. Lawyer-MPs are particularly well-placed to achieve this.

Our system almost guarantees that the President will have the majority support in Parliament. We need MPs because they are supposed to be closer to the people than the President can be. They are supposed to bring the insights that this closeness brings to bear on lawmaking, on scrutiny of the work of government, on critiquing and approving the budget. When they come to vote, this should be on the basis of having discussed the merits of what is proposed. Work in committees, especially, should be constructive, not combative, out-spoken but not merely party-based.

If MPs simply vote in the way the President wants, why do we need them then?

 

WHAT SHOULD MPs BE DOING?

The Constitution drafters took care to structure Parliament as an institution distinct from the Executive. MPs cannot be Cabinet Secretaries — or President. They set out Parliament’s roles in Articles 94-5. Parliament has more power over the budget than under the old Constitution. It is made very clear that individual members may introduce Bills (draft laws). Even if these have financial implications, there is no ban on introducing them, but a requirement that the relevant committee of the National Assembly approve it, after taking into account the views of the Treasury CS. They now have important functions in approving certain office holders.

The National Assembly’s website tells us that — between August and December last year — 15 Bills were introduced, 64 motions introduced, five Sessional Papers considered, 45 legislative proposals submitted (which will eventually be Private Members’ Bills), eight petitions presented and  400 papers laid on the table of the House, and forwarded to the committees.

Making national laws (including on how we are taxed), and overseeing the workings of national government  — especially spending of public money — are viewed as the most important activities by legislators, and commentators on legislatures worldwide.

Many Kenyan Acts require public institutions to report to Parliament, usually annually, and the Legislature is supposed to read, understand and discuss the reports. These include reports on human rights, security, the NIS, and access to information. And the Controller of Budget and Auditor-General — important institutions in the struggle for integrity — also report to Parliament.

It is not that legislators should ignore their constituents. In some countries MPs spend half their time, or more, interacting with constituents and society. MPs should be available to their constituents to learn about the problems they face, explain government policy, advise them where they may get help (including through the Ombudsman — not financial help, though). It is not wrong for MPs to make inquiries on behalf of constituents (provided they do not try to “pull strings” on their behalf), and raise issues with authorities, bearing in mind their constitutional duties, including non-discrimination and integrity.

There is no standard blueprint for the role of MPs. And everywhere legislators find it hard to balance their responsibilities, and sometimes tensions, between nation, constituency, and party. They clearly must be the voice of their constituents, not just their supporters. But they must also use their own brains, experience and judgment. It is their job to be, if necessary, a restraining force on government, or a prod to right action by government.

Kenyans wish them well — if they take their responsibilities seriously (including turning up so Parliament can function). Unfortunately, MPs (in 2015) rejected the idea of an Ombudsman or ethics office to oversee their work, despite several parliaments worldwide having such offices.

Otherwise, there is always Article 104 (on recall of MPs). Parliament tried to restrict this right of voters, but the High Court struck out its efforts as falling “far short of the constitutional imperative”. Kenyans are eager to try it.

 

 

 

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