Two things have prompted me to reflect on the powers of certain state officers under the Constitution of 2010.
The first is the response of President Ruto to the press reports about his micro-managing his Cabinet (and Principal Secretaries, who are not members of the Cabinet). The other was an article about concern in the UK about MPs earning lots of money from sources other than their salaries as MPs.
The chances are that by the time you read this you will be fed up with the deluge of commentary on the first issue. I apologise if I am saying nothing more than you have already read.
Cabinet Secretaries
“By Constitution, you are supposed to advise me” the President is reported as saying. Do the Cabinet and its members have a merely advisory role?
In one sense of course the buck does stop with the President. He selects CSs, and can sack them at will. But I would suggest that this does not reduce the CSs to a merely advisory role.
There are constitutions that say that the Cabinet advises the President. This was true of the pre-2010 Constitution. This said “The function of the Cabinet shall be to aid and advise the President in the government of Kenya.”
The background to this is the 1963 Constitution. This said, “The function of the Cabinet shall be to advise the Governor-General in the government of Kenya, and the cabinet shall be collectively responsible to the two Houses of the National Assembly for any advice given to the Governor-General by or under the general authority of the Cabinet and for all things done by or under the authority of any Minister in the execution of his office.”
But under that Constitution the Governor General (representing the monarch) had hardly any powers to make decisions. He did everything on the advice of the Cabinet - it was not really advice. And the Prime Minister – the head of government – was a member of the Cabinet.
The language of the amended constitution reflected the desire of Jomo Kenyatta to be almost a monarch.
However, we must reflect also that the American Constitution says the President “may require the opinion, in writing, of the principal officer in each of the executive departments.” That Constitution does not really recognise the concept of a Cabinet. It was drafted in the late eighteenth century when the concepts of Cabinet (and Prime Minister) were not fully developed in the UK, the system with which the American constitution drafters were most familiar.
Our current constitution, I would suggest, tries to place the President on less of a pedestal, and has the concept of the Cabinet as a collective body - a bit reminiscent of parliamentary systems. You will remember that Article 1 insists that fundamental power belongs to the people, but that through the Constitution they have given responsibility for much of it to various bodies.
So “Sovereign power under this Constitution is delegated to the following State organs, …(b) the national executive and the executive structures in the county governments.” And the President and Deputy are members of the Cabinet. It is true that the President exercises executive authority with the assistance of the Deputy and CSs (Article 131 (1)(b)). But it is more than advisory. Indeed the Cabinet makes decisions – it is not always the President with the advice of the Cabinet.
And most CSs have specific functions, including making regulations under Acts of Parliament. That responsibility for particular Acts is assigned to CSs by the president. The powers must be exercised by the CS and it would be a violation of responsibility to simply take anyone else’s direction – including that of the President.
Principal Secretaries
“Each State department shall be under the administration of a Principal Secretary,” says the Constitution. They run the machinery of the department. The purposes of the department should match with the policy of the government as conveyed to the department through the relevant CS.
Again they may be dismissed or moved by the President. Presumably the Public Service Commission takes into account – indeed makes a major factor – the competence of the proposed PS to run an administrative body before sending the name to the President. But I have earlier expressed some concerns about how easy an outsider finds it to head a department of public servants with their own ways of doing things, and ambitions for high office.
MPs
It is not uncommon for legislators in various countries to be able to earn outside their work as representatives of the people. Sometimes there is a limit on how much they may make from “side-hustles” – this is the case in the US.
There has recently been a lot of discussion in the UK about the issue. Speech making (especially by former high office holders), media appearances and company directorships are among the activities that attract most attention and criticism. Practice as a lawyer is also not uncommon – one MP voted in Parliament by proxy if he was working as a lawyer at the time of the vote.
People quoted in a recent article by the Guardian newspaper said things like “There is a real risk that MPs and ex-ministers earning such huge sums fuels cynicism about parliament and risks undermining faith in democracy” and “For too many, being an MP is a sideline or an afterthought.”
This reminded me that our Constitution tries to prevent this. It says “A full-time state officer shall not participate in any other gainful employment.” (Article 77(1)). When this was discussed, MPs were definitely among those intended to be affected.
The Constitution of Kenya Review Commission’s Short Report said that people told it, “We want our MPs to work hard.” It also said that people wanted MPs to accept that theirs was a full-time job. This was not only about earning money but also about MPs not having responsibilities as Ministers or Ministers as MPs.
Some rather unsatisfactory cases have been decided on this. Admittedly it would not be easy to decide. Does “employment” mean having a contract of employment - which for example a lawyer appearing in court would not; nor would the author of a book, or a farmer on their own farm or a non-executive company director.
Or does it mean “employed” as ordinary usage that may simply mean something you do, like “I have been employed in painting my house.” However, MPs decided to protect themselves by redefining the phrase “gainful employment” - not by considering the word “employment” but by redefining the word “gainful”.
The Leadership and Integrity Act says that there “’gainful employment’ means work that a person can pursue and perform for money or other form of compensation or remuneration which is inherently incompatible with the responsibilities of the State office or which results in the impairment of the judgement of the State officer in the execution of the functions of the State office or results in a conflict of interest”.
This gives any court a difficult job – to decide if the work falls into any of those classes. In fact the Act amends the constriction by defining a phrase that appears only there. So it should have been passed as a constitutional amendment: by each house with two thirds majorities on two occasions.
MPs are supposed to represent the people – all those in their constituency or their special interest group. They are not there to represent companies that they are associated with or businesses that they or their families run. I would strongly argue that they hold a full-time post. They have pensions and house allowances – the sort of things that only full-time employees usually get.
I doubt whether many Kenyan MPs have anything like the lucrative side-hustles that some British MPs achieve. But let me end with another observation from that Guardian report, by an MP, “While millions face a cost of living crisis, it’s a disgrace that some MPs are still busy lining their own pockets through second jobs.”
