VANDALISING THE CONSTITUTION

Parliament going after SRC is thuggishly bullying of independent institutions

The nefarious attack on the Salaries and Remuneration Commission is both an affront to the people of Kenya and subversion of the Constitution

In Summary

• The Constitution guarantees the independence of constitutional offices and furthermore provides that they must be impartial and exercise their powers and perform their functions without fear, favour or prejudice

• To avoid the perils that flow from the concentration of power, Kenyans constitutionally distributed power across different institutions.

Parliament chambers
Parliament chambers
Image: FILE

Kenyan Parliament has consistently failed to live up to its constitutional mandate as the protector of the Constitution and the people.

Instead, it has elected to vandalise the Constitution, parasite feeding on the body of the Kenyan society and thuggishly bullying and attacking independent institutions. Parliament has become dangerous, preposterous and rogue. It must be tamed.

It is deeply troubling National Assembly has shown a disregard for basic institutions of democracy established by Constitution that should worry all Kenyans. Parliament is a creature of and bound the Constitution. It is not superior to any other institution established by the law.

Parliament exercises delegated powers defined by Kenyans in the Constitution.  It has no constitutional authority to abuse its constitutional power of the purse. Consequently, its nefarious attack on the Salaries and Remuneration  Commission is both an affront to the people of Kenya and subversion of the Constitution. Parliament ought to be ashamed of itself.

The Constitution guarantees the independence of the constitutional offices and institutions. It furthermore provides that these institutions “must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice”, and requires other organs of state to “assist and protect these institutions” to ensure their “independence, impartiality, dignity and effectiveness”.

When the highest political representative institution moves to undermine the legally constituted organs of democracy, all Kenyans have something to worry about. Respect for independent statutory agencies is not a matter for party politics or personality differences

To avoid the perils that flow from the concentration of power, Kenyans constitutionally distributed power across different institutions. Modern well-functioning democracies depend upon the proper operation of independent statutory authorities.

So long as these institutions do not exceed their legislative authority, it is the job of the other arms of government, and particularly the Parliament, to respect their processes. A well-functioning democracy also requires that the office holders of the different authorities observe basic protocols of respect for the respective roles and powers.

Parliament is signalling its preference for the rule of men over the rule of law, for it is by Constitution that statutory authorities were established and by law that they operate and make their determinations. SRC is not the only statutory authority that has come under attack from Parliament.

Parliament cutting SRC is one, subversion sovereignty of the people and supremacy of the Constitution; two, abuse of office and legislative mandate by MPs by abrogation or the supreme law; and three, parliamentary impunity. Kenya has a Constitution supremacy not parliamentary supremacy. Finally, its the act on the SRC is unconstitutional ab nitio 

The solution to Parliament cutting funding for the Salaries and Remuneration Commission and any other constitutional institution is found in two judgments by South Africa Constitutional Court, which set out guidelines on the issue of independence of Constitutional offices and Commissions.

 The judgments namely Van Rooyen and Others v S and Others, and New National Party v Government of the Republic of South Africa and Others in determining these factors asked whether from the objective viewpoint of a reasonable and informed person, there will be a perception that the institution enjoys the essential conditions of independence In other words, an institution must not only be independent. It must also be seen to be independent.

The court said such a perception should be guided by the “country’s complex social realities, in touch with its evolving patterns of constitutional development, and guided by the Constitution, its values and the differentiation it makes between different institutions”.

 The Constitutional Court outlined the following key components institution’s independence: 

  1. Financial independence; 
  2. Institutional independence with respect to matters directly related to the exercise of its constitutional mandate, in particular, control over its administrative decisions; 
  3. Appointment procedures and security of tenure of appointed office bearers.

Kenyans fully understand that instances of discomfort or conflict are the foreseeable consequence of living in a democracy where everyone gets a say and where power is divided between differently constituted institutions. Parliament must live with these discomforts.

After all, each Member of Parliament knew when she or he was standing to be elected the terms and conditions of the holder of the office. Further, the Constitution under Article 116 bars Parliament from passing a law or policy that accrue pecuniary benefits to members while still in office. Kenyans did establish the SRC and put this Article in the Constitution due to the past experiences with Parliament.