The clamor for the overhaul of the Constitution was galvanized inter alia by a desire to tame the “imperial Presidency”, a phrase coined by the doyens of the second liberation.
It defined all that was offensive in the old constitutional order -- an all-powerful, unchecked, overbearing, unaccountable presidency.
It is no wonder that the 2010 Constitution whittled down presidential powers to a level unrecognisable in comparison to the old constitution. Gone are the days when the President could send Parliament home at his whim and all civil servants served “at the President’s pleasure”, or when he appointed and sacked judges without reason.
In their wisdom, the people of Kenya decided to donate most of the former powers of the President to Parliament, on the basis that the latter was the people’s grassroots representatives.
It is now clear that we may have unknowingly created an “imperial Parliament”. The Parliament that was in office immediately after 2010 was quite restrained in the exercise of the newly donated powers.
Indeed, the more progressive constitutional implementation laws were passed during those waning years of the Marende speakership. Many expected the Parliament elected under the new Constitution to be even more supportive of reforms under the new Constitution.
How naïve we all were. The assault on the Constitution commenced immediately the new MPs were sworn in. Successive Parliaments, most notably the National Assembly, have become worse. The most obvious assault has been in the fight for improved perks by MPs.
But there have been other less obvious but equally insidious assaults. These have included the failure to abide by constitutional obligations, the most obvious being the refusal to pass any laws that would enable Parliament to comply with the two thirds gender requirement.
Parliament has passed many laws that have been in direct violation of the Constitution -- some have been declared as such by the courts. Parliament has also made attempts to amend the Constitution, with most of the proposed changes seeking to enhance the powers of or improve the welfare of MPs.
Other abuses of office have included using the powers of the purse, which the Constitution removed from Treasury to Parliament, to punish those who dare take on MPs. The Judiciary has been a victim of this.
Clearly the message has been heard; most judges will not grant any order against Parliament. The current Budget cycle has witnessed the Salaries and Remuneration Commission (SRC) suffer budget cutbacks ostensibly for expending monies which had not been budgeted for, a process that is sanctioned by law and which Parliament allowed the national government to undertake.
The power of the purse has also been used to allocate inordinate revenues to Parliament when compared with other institutions. While one does not want to begrudge MPs of their right to fair compensation, the right of MPs to determine their own perks was taken away by the Constitution.
In several Articles, including 116 and 230, the Constitution makes it clear that MPs, whether directly or through their trade union, which the Parliamentary Service Commission acts as, cannot determine their perks and that any benefit conferred must be enjoyed by the next House.
What then is to be done? Ultimately, when an elective institution crosses constitutional boundaries, the first weapon the citizen has is the vote. Citizens must note serial offenders and vote them out at the next election. In the meantime, the courts have a heavy responsibility to check any abuse of power by Parliament. The courts can quash illegal decisions of the House. We have seen that recently when the High Court suspended payment of the contested allowances to MPs.
They can declare laws and acts of Parliament unconstitutional. Kenyans must remain vigilant and use these and other avenues to ensure that the journey to an imperial Parliament is checked before it is too late.
- The writer is an advocate of the High Court
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