Order! Order! At last

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By David Ohito

Speaker Kenneth Marende dramatically stepped in as the temporary chair of the House Business Committee in Parliament, quelling tensions over the position, but opening another frontier of tussle between President Kibaki and Prime Minister Raila Odinga.

In a deft display of political calculation, Marende hinted that the bickering in the Executive should not interfere with the smooth running of Parliament to maintain separation of powers.

He instead threw the challenge back to Kibaki and Raila, who have been feuding over the position after Vice-President Kalonzo Musyoka’s nomination by Kibaki was challenged by Raila who appointed himself to the post.

The Speaker ruled: "With profound respect, and much regret, I therefore rule that the Speaker will await the name of one minister consensually designated by the Government as the Leader of Government Business.

"It is the expectation of this House that the designation will be made in good faith, through consultation and willingness to compromise within reasonable time. In the interim, the Speaker shall do everything in his power to enable the business of this House to be transacted and to flow without hindrance."

PNU — led by the VP — rejected the ruling as outright emasculation of the presidency and promised to challenge it, while ODM hailed it as well-thought out and acceptable.

Constitutional Court

"This is an assault on the powers of the President," said Kalonzo, adding: "The President is the appointing authority. We may have to seek interpretation elsewhere … in the Constitutional Court," Kalonzo said.

The Speaker had said his role as the temporary chair of the HBC will be limited to the facilitation of the House business.

During the period, the provisions of the Standing Orders that require specific action by the Leader of Government Business, such as No. 36 (4), will remain suspended.

Raila, who skipped the proceedings in Parliament, said: "I accept the ruling of the Speaker. I have constantly complained about lack of consultation in Government decisions. This should tell PNU that the time for unilateral decisions is long gone."

He went on: "I regret we had to wait to get this far when mere consultations would have sorted out the matter before."

Metropolitan Minister Mutula Kilonzo disagreed with the ruling, saying "it creates two centres of powers in broad daylight".

Three options

"The Constitution is clear on who has executive authority. The Speaker gave himself three options, but he picked the easiest," Mutula said.

Public Health Minister Beth Mugo said the President is the Head of Government and "the ruling seemed partisan".

Political analysts and a some MPs praised the ruling, saying it forestalled the stalemate in Parliament and put the blame where it truly belonged — the Executive.

But Marende, in his 20-page ruling that took one hour to read, amid foot thumping from ODM MPs, said: "I am clear in my mind that the Constitution and the National Accord and Reconciliation Act contemplate only one indivisible Government. Where the Speaker is faced with a situation eliciting uncertainty as to a designation made by Government, such is not for the Speaker to decide."

Marende went on: "I said then, and I repeat now, that the office of the Speaker of the National Assembly is singularly ill-equipped to advise on or determine for the Executive arm of Government and, for that matter, political parties how they shall run their affairs.

"I further stated that the Speaker will limit himself to questions of constitutionality, statute and the Standing Orders, but only so far as these relate to the business and affairs of this House. I, therefore, want to make it very clear from the onset that subject to these qualifications, I do not intend to traverse territory that is outside the province of my office," he said.

Contrary ruling

Former Justice Minister Martha Karua said the Speaker’s ruling is good for the independence of Parliament.

She, however, said consultations on who becomes Leader of Government Business was necessary and that President Kibaki and Raila need to consult widely on the issue.

"Any contrary ruling by the Speaker would have been viewed as one-sided. The Speaker has acquitted himself well," said Ms Karua.

Internal Security Minister George Saitoti supported the ruling hesitantly, but demanded that the House defines who should designate the Leader of Government Business.

"The House should clearly define, without any ambiguity, who is supposed to designate such duties," said Saitoti, adding: "The role of the Speaker, as is well known, is to act as a neutral arbiter. The Speaker is not a protagonist in the arena that is the House."

But Marende reminded the House that there was no requirement in the Standing Orders or any other law that the Leader of Government Business be a member of the House Business Committee or its chairperson.

"It might be reasonable and it might be convenient, but it is not a legal requirement," Marende said, adding there was no "Siamese twin" relationship between the two offices.

Supremacy

Marende listed three options in explaining decision-making in Government.

Firstly, he said, one could adopt a business-as-usual stance or secondly chose to trumpet the supremacy of the National Accord to underscore that the way of doing things had changed, or thirdly adopt the hybrid view that appreciates tradition, but also recognises that the new constitutional arrangement had affected it.

He opted for the third option, saying it was in consonance with what the Kenyan reality amplifies in the National Accord: That "neither side can realistically govern without the other".