Speaker’s ruling merely soothes coalition troubles

By Njoki Ndung’u

As a former Member of Parliament, a keen interest in the live broadcast proceedings of the august House comes naturally to me.

The wonderful thing about public broadcast is that viewers have opportunities to assess the quality of debate that separates those speaking to the gallery from those who take legislation seriously.

On Wednesday, I was amazed when the Vice President, a man whom I respect greatly, waxed lyrical about the President’s address during the State Opening of Parliament last week. In doing so, the VP found the time to criticise my article last week on the same. But unfortunately, he seems to have missed the point: The women’s agenda was regrettably left out.

Despite my chagrin, however, I am sympathetic. He was perhaps too preoccupied by the enormity of the Speaker’s ruling the previous day and its resultant impact on the stature of the VP insofar as Government business in Parliament is involved.

deft hand

The Speaker’s ruling has been lauded by the media, politicians, religious leaders, influential international figures, key donors and ordinary folk as a deft hand. Kenneth Marende’s ruling had every mark of his personality: The Speaker can engage one with a twinkle in his eye. But beneath the benign face lies a strict and steely character. He is an experienced politician who knows how to exploit his legal background to a profound effect.

Marende’s ruling this week has been described in various terms. On one hand, the praises have been generous: wise, monumental, constructive and impartial. The counter has been less flattering: temporary, lacking in leadership, cowardly and partisan. Everyone however appears to agree in the extreme circumstances, the Speaker played it safe.

Create several problems

But is safe necessarily right? Understandably, this particular debate has been top on legal minds since. In various formal and informal congregations of the learned friends, consternation and trepidation have greeted the Speaker’s ruling. Whereas there is no doubt his decision was politically safe, many opine he has opened up a legal and constitutional minefield.

My former law professor, an international constitutional expert of acclaimed repute, thinks the Speaker’s ruling will inevitably create several problems.

Firstly, he points out the Constitution is a constant; it is a permanent feature of our Government. By contrast, the National Accord is not. Rather, it is a creature of political exigencies and expediency. He feels insisting the Constitution must only be read alongside the accord is untenable. Arguing that where other sections of the Constitution are in conflict with the accord the latter prevails renders the Constitution the inferior document. This is dangerous and risky considering the accord is liable to unofficial amendment by politicians (read the principals and their generals) and not the courts. This would deny it legitimate legislation.

In other words, the very provision of the accord as it is drafted in Section 3A undermines the Constitution itself. What the parties should have done is amend each and every specific section intended to reflect their power-sharing relationship. Unfortunately, this was not and has not been done despite many opportunities presented to Parliament for this.

For example, if the intention of the Coalition accord is to have a shared presidency, then this must be specifically spelt out in the Constitution. The implications of such an intention are simply too significant and such a radical departure from the actual Constitution. Such monumental decisions cannot surely be assumed by closed-doors political arrangement or left to the Speaker’s ruling however how noble the chair’s intentions are.

Secondly, the lecturer worries that whereas the Speaker’s rulings and the traditions and practices of Parliament are permanent records and precedents lasting through changing governments, the same cannot be said of political coalitions. In the grand coalition for instance, it is possible for PNU or ODM to pull out of the Coalition. The marriage can be annulled by the enactment of a new Constitution. But the Government would still remain standing.

False assumptions

By inference therefore, he believes Marende’s ruling has falsely assumed the coalition is Government. Yet by strict interpretation, it is clearly not. Coalitions are temporary while Government is not. Constitutional arrangements, he argues, must relate to permanent institutions. Yet another friend, a well known political analyst and living follower of Nikolai Machiavelli, feels the Speaker avoided making any hard decisions.

In his opinion, Marende made many contradictions and omissions in his ruling. He points out the Speaker was initially categorical that his office "is ill equipped to advise political parties and their operations, and can only make findings of Constitution, Standing Orders and parliamentary practices".

Ironically though, the Speaker then proceeded to speak at length on consultations between the two principals and the management of the political coalition, effectively directing the Executive on how to manage its business. Further, although the Speaker referred to the new Standing Orders, he failed to refer to specific mention of the time of 15 minutes given to the Leader of Government Business to brief the House on Parliament weekly business. By the same token, he neglected to mention the 45 minutes given to the Prime Minister weekly for questions by MPs.

Appointing authority

A reading of these sections gives clear indication that the authors of the Standing Orders did not intend for the Prime Minister and the Leader of Government Business to be the same person!

Finally, although the Speaker clearly defined who is a minister under the Standing Orders, he declined to state the appointing authority of ministers. This matter is clear in the Accord. The President is the overall appointing authority and appoints the PM and ministers to Cabinet on his (President’s) side, like the Vice President. While on the other hand the Prime Minister can appoint ministers to the Cabinet on his side.

It is not provided for in either document that the PM can appoint himself. Neither does it state that the PM can appoint ministers to any institution outside the Cabinet. Indeed, the whole situation would have been a lot more interesting if the PM had for example appointed William Ruto as his nominee for Leader of Government Business.

As ODM wing celebrates what they feel was a ruling in their favour, and PNU sulks and worries about a civilian coup, the Speakers ruling has left legal fraternity scratching their heads. Whether we agree or disagree with lawyers and analysts, there can be no disagreement that at the very most, the ruling is a painkiller and not, say, an antibiotic. It merely soothes the trouble. This mess is however not in anyway the creation of the Speaker.

That responsibility lies with the Serena Committee and the two principals. In fact to have asked the Speaker to make a ruling in matters strictly relating to the political was grossly unfair. He was forced to become the judge and the juror, consequently ignoring the strict separation of powers between the Parliament, which makes law, the Executive which implements law, and the Judiciary, which interprets the law. Although he did his best in the eyes of the public, his ruling provides only a temporary solution for the purpose of Parliament. In truth, it throws the management of the rest of Government into flux.

Put simply, pray what would happen if the President and the Prime Minister separately send signed letters of accreditation for the Kenyan Ambassador to the US, will we be asking the Obama administration to make a ruling? Please, let’s get our own house in order!

—The writer ([e-mail]) is an advocate of the High Court.