YES, PARLIAMENT HAS GRABBED EXECUTIVE POWERS

THE STANDARD
NAIROI, KENYA
March 25, 2009

By Kennedy Buhere

A decade ago, I asked Dr Amukowa Anangwe, then MP for Butere, why Parliament had taken control of district roads boards and constituency Aids control committees, when the principle of separation of powers in Government excluded it from such issues.

Anangwe, who was also a Cabinet minister, complained the World Bank and western nations believed the Executive and the Civil Service were incorrigibly corrupt and had engineered legislation and other measures to preclude the bodies from the Executive’s influence. He confided in me — being relatively close as a Kenya News Agency official in Butere — that the emerging trend was likely to emasculate the Executive and greatly distort formulation and implementation of policy.

Reservations expressed by Head of the Public Service and Cabinet Secretary Francis Muthaura last week called to my mind the fears Anangwe expressed. Critics have since questioned whence Muthaura drew his authority to raise the issues in question, being patently political as they are. For me, that doesn’t matter. Our sense of duty as citizens requires that we respond to the fundamental issues Muthaura raised: The stealthy creep of the Legislature into a domain the Constitution, statutes, conventions and other laws has long vested in the Executive in democratic systems everywhere.

Principle and common sense must impress on us the reality that the Executive must have an influence in the choice of the principal officials running key institutions of Government, save for MPs. It has had and must have a hand in who ascends to the High Court — though, with the advice and consent of Parliament as in the US and other democracies.

Autonomy circumscribed

The Executive must also have hand in appointments into State corporations established by statute. This is because, administration and enforcement of laws constitutionally and legally belongs in its ambit, not with the Legislature or the Judicature.

The Executive is not an agency of Parliament. It is a co-ordinate organ of Government, charged with enforcing or implementing legislative policy. It cannot effectively enforce the Constitution, statutes and other laws when its autonomy is heavily circumscribed by the will of Parliament.

As United States statesman Alexander Hamilton observed in The Federalist Papers, a series of 85 articles advocating ratification of the US Constitution: "The administration of government, in its largest sense, comprehends all the operations of the body politic, whether legislative, executive or judiciary; but in its most usual, most precise, signification, is limited to executive details, and falls within the province of the Executive.

"The actual conduct of foreign negotiations, preparatory plans of finance, application and disbursement of the public moneys in conformity to the general appropriations of the legislature, the arrangement of the army and navy, the directions of the operations of war, these, and other matters of a like nature, constitute what is most properly understood as the administration of government."

Muthaura was right to expressing serious misgivings about Parliaments penchant to encroach on the Executive’s turf. We should not see his action as aimed at protecting President Kibaki’s sphere of influence in Grand Coalition Government. The position he stated stands — and will stand regardless of who is President.

Any Secretary to the Cabinet will be constrained to restate this principle of constitutional law if politicians or others are afraid of saying so.

Combination of ignorance

I would restate it in perhaps more forceful language than Muthaura did knowing that the trend we have taken is bad for the interests of good, effective government. Political scientists, statesmen, historians and judges and lawyers have never faulted the Executive managing taxation, foreign policy and all matters that are not legislative and adjudicative in character.

A combination of ignorance, naivety and malice have led politicians to impair Government by weakening the Executive. Cutting its excess powers does not mean transferring unwarranted power to a Legislature with as much capacity to be imperial or tyrannical. While it is easier to handle the Executive (held by one person), it is harder to hold to account an entire Parliament. Citizens beware.