Interesting week for parliamentary systems of government

It has been a stimulating week for people interested in parliamentary systems of government.

On Tuesday, Kisumu Governor Anyang’ Nyong’o launched his book, pulling together various pieces originally written for this paper, on Kenyan politics, leading up to making the case of a shift from a presidential to a parliamentary system.

The occasion was “graced” by a formidable collection of political heavyweights and intellects, including Raila Odinga, James Orengo, Gitobu Imanyara, Joe Ager, Michael Chege, Kiraitu Murungi, and Katiba Institute’s own Yash Pal Ghai.

Some speakers, including the Governor himself, were passionate advocates for a parliamentary system, while others were more cautious.

On another stage, on the same day, a momentous phase of another drama was played out: The UK Supreme Court’s judgment in the case about the Prime Minister’s suspension of Parliament.

This – rather like our own Supreme Court’s judgment in the case on the August 2017 presidential election – was a “Wow!” moment. Eleven most senior judges unanimously decided that the Prime Minister had acted unconstitutionally when he “advised” (it means told) the Queen to issue a formal statement bringing the parliamentary session to an end.

It is, of course, all over Brexit – British exit – from the European Union.

WHAT IS A PARLIAMENTARY SYSTEM?

In a parliamentary system, the head of government is not a President elected by the people directly, but a Prime Minister who reaches that position by being the choice of the largest party in Parliament (or of the largest grouping of members if no one party has a majority of the seats).

The Prime Minister is, and remains, a member of Parliament, as are the government ministers.

Almost always there is a separate head of state – a king or queen in some countries, or a President. South Africa is unusual because the head of government, once elected by MPs from among their own members, ceases to be an MP, and there is no separate head of state.

South African ministers must be appointed from among MPs, and remain MPs, though the President may appoint up to two from outside Parliament. The President continues to be able to come to Parliament and speak, but has no vote. He or she must appoint a minister as leader of government business in Parliament to ensure ministers carry out their parliamentary responsibilities, and relationships between the Executive and the Legislature run smoothly.

BREXIT AND PARLIAMENT

While the UK usually has strict party discipline, the two main parties have been internally divided on Brexit. Some MPs have continued to oppose the whole idea, despite the referendum that voted for it. Personal judgment, and how their own constituents voted in the referendum, generally play a part. A number of MPs have left, or been pushed out of, the parties for which they were elected.

The involvement of Parliament became central after the UK Supreme Court held that the process of leaving the EU could not happen without the involvement of Parliament.

When Theresa May, resigned, having failed to get Parliament’s support for the deal she had negotiated with the EU on the terms for Brexit, her successor was a matter for her party - the Conservative Party MPs and party members, who are few.

Some people found this a bit strange. But remember that it was the ANC, not the popular electorate, that directly led to the removal of Jacob Zuma as President in South Africa and chose Cyril Ramaphosa to succeed him.

In Australia, parties have removed sitting prime ministers by internal votes, although there is a formal method for the whole of Parliament to vote on whether the PM should continue in office.

The new British PM, Boris Johnson, wants an election. But he could not get sufficient support in Parliament (two-thirds of MPs must vote in favour). Other parties viewed his wish for an election as a manoeuvre to avoid Parliament being an obstacle to his declared intention to leave the EU on October 31, with or without a deal on terms. The country has been witnessing a tussle between Parliament and Executive.

Frustrated, Johnson ended the parliamentary session early, meaning Parliament would not sit for several weeks, widely considered to be trying to make it impossible for it to have any meaningful debate on the Brexit deal (or no deal).

A majority of Parliament passed a Bill to prevent a no-deal Brexit – requiring the PM to seek a further delay if no deal has been achieved by October 19th. That Bill became law when the Queen signed it. Presumably, in theory, Johnson could have “advised” her not to sign. But that would have been complicated by the fact that he no longer has majority support in Parliament.

But what happens if Johnson refuses to obey this law – as he has threatened? Parliament can still vote Johnson out of office – a vote of no confidence. But he then has 14 days to try to get enough support to stay on. Otherwise, there must be a general election - but Johnson would choose the date.

THE CASE

The constitutionality of the suspension went to court in three parts of the UK. Two of these three cases went to the Supreme Court and were ruled on this week. The court decided the Prime Minister acted unconstitutionally because he prevented Parliament sitting at this crucial point. His motive was not the issue – just the practical effect.

Politicians, and the media, strongly in favour of Brexit, reacted predictably. “Who runs Britain?” they thundered – the point being that “unelected judges” had decided that something within the power of an elected politician had been wrong. The courts should leave politics to politicians they thought.

The court agreed that they could not reverse purely political decisions. But the mere fact that a decision is made by politicians does not make it a purely political decision. It must be within the law. The court quoted a predecessor: “[Political leaders] are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge.”

That is an important distinction and one that the Kenyan courts have also made.

It was obviously also relevant that what the PM had done had the effect of preventing – or at least hampering – his accountability to Parliament, the elected representatives of the people.

WHAT CAN KENYA LEARN FROM THIS?

The first lesson is surely that having a parliamentary system is no guarantee that arbitrary, and anti-democratic, action will not take place. As people have talked of the “imperial presidency” so there may be a “presidential prime minister”.

When designing a parliamentary system, a lot of factors must be considered – especially about the balance between Parliament and the Executive. Who should fix the dates of sittings of Parliament, and should it be possible for an early election to be called, and by whom.

Should it be possible to remove the head of government by a simple vote of no confidence? If such a vote occurs, what should happen next?

Should it also be possible for the head of the government’s party to remove him/her? If so, should the Constitution set any rules about how this is done?

Should the Constitution give Parliament a say in major decisions such as making treaties, or withdrawing from them?

Should there be a separate head of state, and should that office be able to act as some restraint on the possible excesses of the Prime Minister?

Various constitution drafts, including Bomas, dealt with these issues, or most of them.

Finally, leaders, and the rest of us might reflect on the value of having judges who are independent of government and who are prepared to insist that constitutional principle and the processes of democratic accountability are respected.

Unfortunately, Boris Johnson seems to have learned from President Kenyatta to use inflammatory language about the courts.