GHAI: Constitutionality of question time for CSs before Parliament

I had thought that it was not a bad idea for Cabinet Secretaries to appear before a chamber of Parliament and respond to questions. What happens in the main chamber of each House gets perhaps more attention than what goes on in committees. 

Then there is Article 125 of the Constitution that says that either House, and any committee, may summon anyone before it to give evidence or provide information.

Now, we are told that experts insist that to have CSs appear before the full Houses would be unconstitutional and indeed would be trying to change the Constitution, and on a topic that would require a referendum, if there was a formal constitutional amendment.

This is presumably because they believed it would change the functions of Parliament. Indeed one expert apparently commented that a question time arrangement would violate the separation of powers.

WHY DO THEY SAY THIS?

The Article that, it is argued, makes it impossible for CSs to appear before the full houses is Article 153(3). This says that CSs “shall” (which we should read as being they have no choice) appear before a committee of either House when the committee requires it. It is silent on the question of their doing the same before the full House.

There is a principle of constitutional interpretation (it applies to ordinary laws, too) which says that if one thing is stated expressly, and the document is silent on another closely related thing, the omission was deliberate and that other thing is excluded.

So here – appearing before a committee is mentioned, appearing before the whole house is not.

A LITTLE HISTORY

In fact, we can go further than this. It is also permissible, when deciding what a law means, to look at the history of its making. Early drafts of a new constitution (the Constitution of Kenya Review Commission in 2002, the Bomas Draft of 2004, the first two Committee of Experts drafts) all proposed parliamentary systems of government, but the CKRC draft said that ministers should not be MPs but be appointed from outside.

The CKRC probably then felt it was important to make it clear that even such ministers must appear before Parliament, or a committee, to answer questions.

That statement remained in the Bomas draft, although according to that draft, ministers would have been MPs. It remained in the Committee of Experts’ draft in 2009, and in their revised version in 2010. In both versions, up to 10 ministers could have come from outside Parliament.

Then, of course, came the infamous parliamentary committee of 2010. It changed the system of government to something very like the American system. This included ministers (renamed Cabinet secretaries because American ministers are called something similar). And I can only assume that they looked at the draft Article about ministers appearing before full houses and committees and said something like, “In the US they appear before committees only. Question time is a parliamentary practice.”  And they removed any reference to appearing before a full House and left an obligation on CSs to appear before committees only.

The Committee of Experts felt unable to change any of the MPs’ recommendations on system of government (and most other changes that MPs felt strongly about) for fear it would lead to a rejection of their whole draft. And the whole process of studying the Committee’s proposals, and deciding how to respond to them in the draft constitution, had to be completed in a few weeks (according to a timetable in the law about the process).

So we were taken to a position that, clearly, not saying anything about full houses was a deliberate choice of the constitution makers, and not some error or oversight. And yet – what an odd situation.

Firstly, it is rather curious to see a committee of MPs reduce the power of future MPs to interrogate CSs. It also seems a little odd to be able to require someone to attend a committee but not the full House of which that committee is part. Then, each House (or a committee) can summon anyone else in the country to a meeting. CSs are the only ones who clearly cannot be required to attend. It also takes away from each House the normal power to make its own procedure. (This is not the only situation, however, in which a rule of procedure would be invalid if it contradicted the constitution).

It is possible that the Kenyan MPs were wrong in their assumption about US Cabinet members being inherently unable to appear before Congress. In fact, discussions on the desirability of a sort of question time - sometimes involving the President and sometimes not - have taken place periodically in the United States.

John McCain, a presidential candidate in 2008, (he lost to Barack Obama) said that, if elected, he would “ask Congress to grant me the privilege of coming before both Houses to take questions and address criticism, much the same as the Prime Minister of Great Britain appears regularly before the House of Commons.” (Note that President Ruto has not decided to expose himself to this procedure).

Would question time for CSs actually conflict with the principle of “separation of powers”? (The argument has also been made in the US.) I personally think not.

For a start our Constitution lays limited emphasis on this principle. Intriguingly, that parliamentary committee that introduced the more “separation of powers” oriented system of government that we now have also removed explicit references to separation of powers except in relation to devolution.

Our Supreme Court recently said that separation of powers is “never conceived as involving a perfect and hermetically sealed division of responsibility between the three branches of government.” In other words they do not take an extreme and rigid view of what separation of powers means.

When CSs appear before Parliament they are not really doing what MPs or senators do. They are being accountable to the people through Parliament. Remember that they are already told by the Constitution to appear before committees. And already the National Assembly has the power to pass votes of no confidence in CSs.

 I think that CSs coming to parliament is no more a breach of separation of powers than it is for the courts to make decisions about the constitutionality of actions of Parliament (MPs like to argue that this is a breach of separation of powers). The separation of powers has two basic functions – to prevent too much power in too few hands, and to allow different organs of state to exercise some control over each other. The latter is what is meant by checks and balances.

IS THERE A WAY OUT?

It seems unlikely that opinions of unconstitutionality will deter the President from continuing with this question-time practice, if it seems to him a good idea. So the issue might come to court. Might the idea be saved despite Article 153(3)?

That says that CSs must, if required by a parliamentary committee, appear before it. Let’s accept that they cannot be compelled to appear before full houses. I would like to suggest that nothing in the Constitution says CSs cannot voluntarily appear to answer questions. It is anyway not normal for ministers in parliamentary systems to refuse to appear or for parliament to use their powers to compel them to come. So long as the President is behind the CSs appearing, no compulsion by Parliament will be needed. And on a voluntary basis they could continue to appear.

However, some of the language in the recent amendment to the parliamentary standing orders (rules of procedure) needs reconsideration.

It says things like “a Cabinet Secretary shall reply to a Question within fourteen days” and the Speaker may “direct a Cabinet Secretary to provide additional information.”

This language that suggests the CS has no choice seems inappropriate for a voluntary appearance.