BBI blurs, undermines separation of powers, checks and balances

In practice, separation of powers is just a notion or concept whose practicality should be interrogated thoroughly

In Summary

• In 2010, Kenyans preferred a pure  presidential system with the president as head of state and government.

• Had ministers been part of the National Assembly, they would not have gotten away with impunity. Separation of powers isn't working so well today, BBI won't improve situation. 

The BBI recommendation to create a prime minister post and two deputies has once again rekindled heated debate as to whether there will be separation of powers in the configuration of the Executive and the Legislature as proposed.

The 2010 Constitution is founded on a strong notion of separation of powers, with clear boundaries between the three branches of government – Parliament which makes laws, the Executive which administers them and the Judiciary that adjudicates disputes. The organisational principles for the system are set forth in the 2010 Constitution.

By adopting the Constitution, Kenyans showed preference for a purely presidential system in which the President is the head of state and government, and appoints ministers from non-members of Parliament.

And when any appointment is made from Parliament, as was the case with former Belgut MP Charles Keter, the appointee must resign from the legislature before assuming the office of Cabinet minister.

This has ensured that the line between these two arms of government are not blurred as was the case under the former constitution. 

While separation of powers is organisational and mechanical, it is critical to guaranteeing another critical aspect in the exercise of state power and the day-to-day running of government.

Checks and balances have been defined as a system by which governmental powers are distributed among the Legislative, Executive and Judiciary branches. Each branch has specified procedures for influencing and restraining the excessive or improper actions taken by the others.

In theory, the Legislature’s role is to consider and adopt laws. The lawmakers also serve as representatives of the people, a mandate they get through periodic elections in electoral constituencies or through nomination to represent special interest groups.

Once the laws are adopted, and the head of the Executive has given the  approval through assent, the law either comes into force immediately or on such appointed date as may be specified in the official government publication called the Gazette.

The role of the Executive is to monitor and ensure adherence and compliance to the law. That is why during his speeches, President Uhuru Kenyatta often makes reference to “my administration”, for the role of the Executive is to administer laws as passed by the Legislature.

But even as the Executive administers the law, the role of the Legislature is to oversight on how the Executive exercises its powers. Those who break the law are supposed to be apprehended by the Executive and arraigned in court whose responsibility is to hear claims by the Executive and punish anyone proven to have broken the law.

But in real practice, separation of powers is just a notion or concept whose practicality should be interrogated thoroughly, and more so in our case where the principles for the system are set forth in the Constitution.

In 2016, the National Civil Society Congress led other civil society organisations to petition the National Assembly to reprimand and censor a Cabinet Secretary under whose docket the authority to publish a commencement date for the Public Benefit Organisations Act was delegated.

After all, it is the role of the Legislature to oversight the Executive and demand an explanation as to why decisions of Parliament and undertakings by the Executive have not been implemented.

The Public Benefit Organisations Act was adopted by the unicameral Parliament in 2012 and assented to by President Mwai Kibaki on the  January 14, 2013. The executive is yet to operationalise it more than seven years since then.

But rather than put the executive to task for its failure to act, the National Assembly never responded to the petition, save for the rubber stamp on our copy confirming receipt.

Instead, what followed were chilling telephone text messages sent by anonymous individuals apparently acting at the behest of the Executive. Despite a formal report being made at the Central police station, the matter was never investigated!

On October 11, 2018, the Civil Society Reference Group (CSRG) requested  a meeting with the National Assembly’s Select Committee on Implementation over this inordinate and unprecedented delay by the Executive to operationalise the law.

This, even after the High Court ruled twice in 2016 and again in 2017 that the law be commenced within specified timeframes.

The Select Committee granted our request and invited the CSRG to a meeting on November 8, 2018. But the committee started behaving strangely thereafter.

It is now two years since the CSRG appeared before the committee but no communication has been forthcoming. It has not filed a report with the National Assembly either. It could be the committee of the whole House has not also held it to account.

That an arm of government charged with oversight has never seen anything wrong with the Executive’s refusal to implement its decision seven  years since it was made is not only baffling but also criminal.

Not even a follow-up letter by the CSRG on August 19, 2019, through the Clerk of the National Assembly to see whether they were still seized of the matter elicited a response!

The BBI task force has proposed that Kenyans revert to the old order of appointing ministers from the Legislature. Their argument is that the clear separation of powers between the Legislature and Executive as established in the presidential system is dysfunctional. Based on this experience, the proposal is understandable.

Had the ministers been part of the National Assembly, they would not have gotten away with impunity. A daring MP, acting out of frustration of being left out to warm the backbench would have put the ministers under whose docket the authority to operationalise the law has been invested in the seven years of its non-implementation.

Perhaps you have been wondering why standards of accountability, transparency and integrity are difficult to uphold in Kenya, and opportunities for poor governance and corruption have increased, limiting civic space and human rights.

It is because separation of powers as enshrined in the Constitution exists only in theory. The Executive and the Legislature have just made it difficult for there to be checks and balances.

Suba Churchill is the president and convener of the Civil Society Reference