Passing self-serving laws demeans Kenya's Parliament

This week’s passage of the “Order of Precedence Bill” marks yet another low for Kenya’s first post-Constitution Parliament. The framers of the Constitution made Parliament, and particularly the National Assembly, the pre-eminent institution in Kenya’s governance process in its triple role of oversight, legislation and representation.

Many Kenyans will agree that on many scores, Parliament’s performance has been underwhelming. At a time when there is serious legislative and other parliamentary business backlog, one would have expected Kenya’s august House to spend its time on more worthy legislation.

Instead, both Houses have taken a significant part of their legislative time debating this Bill whose main aim appears to be nothing more than self-glorification and an obvious attempt to reduce the clout of the “uppity” Governors.

The fight for a defined pecking order is not surprising. In our history, MPs by virtue of their control over the purse strings in the villages were the natural Big Kahunas. Any peasant who needed a road, a bursary, or a funeral donation trooped to the Honourable’s home. Their issues would be dealt with relative to the value of their political stock. The ever-expanding Constituency Development Fund, which made MPs implementers of development programmess, enhanced the value of MPs further.

Devolution changed all that and MPs are slowly coming to terms with this new reality. There’s a new Sheriff in every town called the Governor. Not only does he control serious cash, he also has all the trappings of power that the villager understands and respects. The MP may have CDF, but that is petty cash compared to the monies available to the Governor.

Indeed in some instances, MCAs have control over more cash, since they have taken over the bad habits of the MPs and are also implementing programmes in their Wards courtesy of the Ward Development Funds. The last two years have therefore marked an assault on this alternative power at the county. There have been numerous laws trying to reorganise the pecking order in the county, including the one that sought to make Senators prefects over the developmental agenda of the county through the County Development Boards. Parliament has refused to facilitate the transfer functions like roads, constitutionally granted to the counties, but previously managed by MPs.

The Order of Precedence Bill follows in this family of “pecking order” laws. I hope the President rejects the Bill and sends it back to the House, even if just to make the point that he will not be distracted by trivial legislation. But if he does assent to it, this is not the final word on the matter. Any county can pass a local law that allows its officers to be called whatever it desires within its boundaries. There’s an uninformed opinion that all national legislation prevails over all county legislation.

As a matter of broad constitutional theory, national law supersedes county law only in a number of circumstances. This theoretical position has been reinforced by our Constitution’s Article 191, which provides that national law prevails over county law in only two circumstances. One instance is where the national legislation is aimed at preventing unreasonable actions that impede national security or national economic policy. The other instance is where the law is on a matter that cannot be regulated effectively by county law, relates to norms and standards and national policies and is necessary for the protection of economic unity, mobility of goods and protection of the environment. In all other circumstances county law prevails over national law.

These provisions are at the heart of devolution. If we had provisions that allowed all national law to prevail over county law, national parliaments would prejudicially micromanage the affairs of counties by passing offensive laws.

Looking at the Order of Precedence law, my view is that it does not meet the threshold set out by Article 191. Consequently any county can pass a law inconsistent with the National Order of Precedence law on how matters will be handled within its boundaries. Once it does, only the courts can determine which law prevails once a conflict is declared. It is unfortunate that this petty law may be what we will test Article 191 with, but sadly, that’s the country we have become.