‘The Royal Prerogative’ still exists to some limited extent in the United Kingdom. It refers to the powers of the monarch (now exercised on the ‘advice’ of the government) simply by virtue of being monarch.
Foreign affairs were part of this. This history explains why even written constitutions, including Kenya’s past constitutions, often say little about foreign affairs.
Any idea of presidential ‘prerogative power’ is nonsense in a country where all power flows from the people via the constitution. Not all powers can be listed in the constitution, although many are, but they are included in the idea of ‘executive power’, and the national executive body is the entire Cabinet (Article 130). Some powers are given specifically to the president (Art. 132).
A 2002 article by Professors JB Ojwang (later a Supreme Court judge) and Luis Franceschi (Strathmore Law School) suggested a new constitution needed a “sensible balance between public participation, parliamentary control and presidential decision-making”.
The
constitution says the president appoints appoint diplomatic or consular
representatives with the approval of the National Assembly, and receives
foreign diplomatic and consular representatives (a purely formal function).
Parliament would have to approve a declaration of war (to be made by the President). The National Security Council should “ensure the integration of the domestic, foreign and military polices relating to national security”.
The president must ensure that Kenya fulfils its international obligations (through the relevant ministries) and report annually to Parliament on Kenya’s fulfilment of its international treaty obligations.
Some interesting ideas in the Constitution of Kenyan Review Commission 2002 draft had disappeared by 2010.
These
included recognition of the law on refugees in the constitution, particularly the duty
not to send people back to countries where they would be persecuted.
Also gone was an effort to make Kenya’s reporting to human rights treaty agencies a matter of national concern, encouraging people to send alternative reports to that of government and requiring government to tell Kenyans how they planned to respond to committees’ observations.
In 2002 East African Community law and international treaties were recognised as “sources of Kenyan law”, and generally international law had a lot of recognition.
But the 2010 Constitution says international treaties to which Kenya is a party are part of Kenyan law - though “under this Constitution”. This goes further, I think, than saying they were sources of law in the 2002 draft. Because of this, a 2002 idea was revived by an Act of Parliament: Parliament must approve treaties - a topic to which I shall return.
Appointing ambassadors
Is it right that the president appoints ambassadors - with the approval of a compliant Parliament? Ambassadors should not represent the president - they represent the nation. The Foreign Service Act says they represent the president, and the nation at official functions in the host country (but not otherwise?). I suggest this is a relic of prerogative powers, and should go.
The media have pointed out the negative impact on the career foreign service of the President using this power as patronage for supporters or election losers.
The FSA says vaguely that nominations of diplomats must reflect “a fair balance between career diplomats and other appointees”.
What
is a “fair balance”? A recent study showed that in five European countries, the
great majority of ambassadors were career diplomats and a few were diplomatic
professionals but appointed with political considerations. Very few came from
outside the diplomatic service and were truly political appointees. The United
States was rather different: while 65 were career diplomats, 33 were political
appointees.
I suggest a true career diplomat will have been in the Foreign Service for 20 years or so, serving in different countries and really learning what being a diplomat means. Later entries into the diplomatic service should not be barred. The FSA was passed in 2021 “to provide for the establishment, management, administration, accountability and functioning of a professional foreign service”. But is that what we have got?
The UK Constitution Society (an NGO) observes that “ambassadors should be appointed based on a merit-based selection framework that should be made publicly available. Requiring candidates to meet clear and published criteria would improve transparency over high-ranking appointments and more clearly demonstrate the fit of a candidate to a position.”
We do not have such criteria, but the recent Foreign Policy Sessional Paper (pompously named ‘The Grand Strategy to Position Kenya’s Foreign Policy in The Global Landscape’) promises criteria. It also says that there is a plan to amend the FSA to ensure a 70:30 ratio between career diplomats and others. It seems Kenya is adopting the US approach.
Of the nine people recently appointed as ambassadors or high commissioners, only one was an immediate past politician: Florence Bore, victim of the post-Gen Z Cabinet change in 2024. Six others had significant prior experience with the Ministry of Foreign Affairs.
Oddly, though, the FSA says ‘career diplomat’ means an officer of a rank eligible for appointment as a high commissioner, ambassador, diplomatic or consular representative” robbing it of meaning, really. Hopefully, the planned FSA amendments will clarify this.
Time will tell whether presidents will continue to observe the new 70:30 appointment “rule” and whether it will be put into law.
Parliament
does invite the public to submit comments on nominees, as the constitution
requires, though it is not clear that there is much response. Requiring
statements under oath is a deterrent to this public participation.
Declaring war
What is war? It would involve a foreign country. Not necessarily by human invasion –which drones are making less important. The US never declared war on Vietnam, despite sending 2.7 million troops there, so Congress was not involved.
Kenya
is in Somalia - but no war has been declared. However, the National
Security Council can approve the use of Kenyan troops outside the country but
with the approval of Parliament, which has happened. But this is for support
operations, as for Amison - not war. When Kenyan
troops went into the DR Congo, the approval had to be retrospective.
If the President ordered troops to invade another country in a hostile manner but without declaring war, Parliament could obstruct this to some extent by refusing to vote for necessary funding. Would they do so?
Does the constitution really deal with this clearly enough?
Recognising
states
Ojwang and Franceschi did not think it was practical to regulate recognition of foreign states by law. It’s a difficult question. There can be consequences of decisions about recognising foreign states and rebel groups.
Kenya “flip-flopped”, said one former diplomat, over recognition of Western Sahara ¾ most recently preferring an autonomy solution within Morocco.
The new sessional paper tells us that “Kenya country positions will align with the African Union and United Nations collective positions and decisions, and the country’s national interest to maintain mutually beneficial bilateral relations with as many states as possible.”
This tells us nothing. It is certainly questionable whether recent government actions in allowing Somaliland to open an office in Nairobi (which Somaliland immediately called an “embassy”) or whether its apparent friendship with the Rapid Support Force (RSF) in Sudan enhanced our relations with Somalia or Sudan. In both instances, the government (meaning the President and the Ministry of Foreign Affairs) seems to have rushed to some decision and then tried to tone down that decision or its consequences.
Such decisions should, I suggest, be a Cabinet decision. And how would a court react, I wonder, to a challenge to one of these international decisions for lack of public participation?
Mashariki Research and Policy Centre suggests the need for “a coherent and principled framework — rooted in legal clarity, inclusive dialogue, and mutual interests”.
Once upon a time, kings were all powerful, even in internal matters. Something of that mindset lingers in international affairs, leaving governments, especially executive presidents, arguably with too much power.
