Parliament and the Executive at a crossroad

By David Ochami

This afternoon (Tuesday), Parliament will annul Gazette notices 9300 and 9301 through which President Kibaki unilaterally re-appointed Justice Aaron Ringera and two others to the Kenya Anti-Corruption Commission.

Vice-President Kalonzo Musyoka may also be named under Parliament Standing Order 97 and 98. To be named in Parliament is to be reprimanded for discussing the depth of a matter slated for debate outside the chamber.

The rule says when an MP or minister is named, they are expelled from the precincts of Parliament for three consecutive sittings. They forfeit allowances and cannot perform functions in Parliament for that period.

The annulment of the notices by Parliament’s Legal Affairs and Delegated Legislation Committees last week is the high noon of a growing rebellion by Parliament against the Executive and President in particular.

The annulment will be an unprecedented challenge to presidential decrees.

Unprecedented stalemate

Mandera Central MP Abdikadir Muhamed says Ringera will cease to hold office at KACC. It may occasion an unprecedented stalemate.

"On what authority will he be in office after the notice is annulled," asked the MP who added that Parliament’s oversight role over KACC overrides presidential decree in this matter.

He argues that because KACC is accountable to Parliament and is independent of the Executive and State Corporations Act, Parliament’s annulment should hold supreme this afternoon.

But Attorney General Amos Wako disagrees:

"Parliament should not act in vain because all it can offer is an opinion that is not binding. It is only the courts that will provide a final ruling," an argument that Kalonzo favoured when he accused the Speaker on Sunday of trying to challenge Kibaki’s constitutional powers to appoint any one to any office.

The VP believes there is an attempt to weaken Kibaki’s hold on power through Parliament.

Meanwhile, Budalang’i MP Ababu Namwamba says Parliament’s Implementation Committee, created by new standing orders, will be duty bound to ensure the annulment is enforced or adopted by the Government within 60 days from today’s vote.

Kigumo MP Jamleck Kamau chairs the committee which was revived in March after being abolished in the 1980s for allegedly encroaching on Executive privileges.

Annulment validity

Significantly, Kamau has waded to one side in this debate alleging he will not allow ‘a dictatorship of Parliament’ indicating he could have doubts over the annulment’s validity.

Early this month, the back bench voted to slash a million shillings from Attorney General’s travel stipend to protest Wako’s refusal to reform the State Law Office and co-operate in the Anglo-Leasing corruption investigation. In the wake of Ringera’s re-appointment, MPs defeated an adjournment Motion moved by the Government and threatened to vote down the Appropriations Bill.

The breaking point for the Government occurred last Thursday when Speaker Kenneth Marende made a historic ruling against Justice Minister Mutula Kilonzo’s attempt to halt debate on the two committees’ joint report. Mutula had argued, citing Parliament’s Standing Order 80 that because some civil society activists had challenged Ringera’s re-appointment in court, Parliament was, obliged, under the principles of sub judice and separation of powers, to halt debate on and adoption of the committees’ reports.

Marende’s ruling on Thursday has pricked the VP to the quick. The Speaker argued that sub-judice rules were not invented to gag Parliament from its constitutional oversight and need to interrogate a matter of public interest, which Parliament was in charge of before the court litigation.

He ruled that Mutula had neither proved the matter in court was active nor demonstrated that Parliament’s debate would prejudice its outcome in court, especially when such a matter is handled by qualified and independent judges.

Now opponents of Marende’s ruling led by the VP are accusing the Speaker of turning Parliament into a court of law-by interpreting laws, a function they allege is a preserve of the Judiciary.

These critics also allege Marende is applying new Standing Orders adopted in March to challenge the President’s constitutional prerogatives.

Last month, the Kigumo MP filed a Motion seeking to challenge Marende’s other historic ruling in April on the unsolved matter between Kibaki and Prime Minister Raila Odinga over who should name the leader of Government business in Parliament.

Kamau said then that "it is not the role of Parliament or the Speaker to interpret the law" referring to the April ruling when Marende referred to the Constitution and National Accord to overturn traditional understanding of ‘Government’ as the appointing authority of leader of Government business.

Dangerous grounds

Now Kalonzo accuses opponents of Ringera re-appointment of generating negative energy and the Speaker for treading on dangerous grounds for trying to weaken the Executive.

Kalonzo claimed on Sunday that Marende is ‘running down constitutional offices’ and plotting to create a constitutional crisis in the Ringera saga.

Said the VP: "It is clear to me as a lawyer that we can create a constitutional crisis. We must respect the separation of powers. The Speaker’s ruling is dangerous grounds."

And according to Internal Security Minister George Saitoti: "Those who have a problem with the manner Justice Ringera was re-appointed should go to court," an argument first propagated by Mutula who also feels discussing and adopting the committees’ reports amounts to usurping judicial prerogatives and presidential powers.

Marende and Mandera Central MP Abdikadir Muhamed dispute this line of reasoning arguing that the VP, the Justice Minister and others misunderstand the role of Parliament and doctrine of separation of powers.

Says the Speaker: "That is a hollow argument, it is not an argument at all to claim Parliament is turning itself into the Judiciary by interpreting the law.

"Interpretation of the law happens everyday. Even the chief interprets the Chiefs Act to ensure there is law and order. Even journalists interpret media law in the course of their duty."

Standing orders

The Speaker also accuses opponents of forgetting that Parliament’s standing orders are creatures of the Constitution and must be interpreted and enforced. And Abdikadir says it is not out of the ordinary for the Speaker to interpret Standing Orders and other laws applicable to Parliament and his office.

"This is the role of Speakers the world over."

According to the MP, Marende’s opponents seem not to have read the Interpretation and General Provisions Act on the role of Parliament over delegated or subsidiary legislation, which in this case include Gazette notices, as ruled by the Speaker. He says that even courts of law have ruled that Parliament holds the primary mandate over subsidiary legislation and Appropriations.

Parliament’s new rules created the Delegated Legislation Committee under Standing Order 197 to force the tabling of subsidiary legislation with 21 days of their creation and ensure they conform to parents Acts.

In this case, Abdikadir says the committee has the duty to annul Kibaki’s notices if they do not conform to the Anti-Corruption and Economic Crimes Act, which contains procedures for appointments at KACC.

Meanwhile, the Speaker says those uncomfortable with new Standing Orders only have themselves to blame for they had an opportunity to participate in their making last year.

Revised orders

He notes that apart from former Justice Minister Martha Karua who sat in all meetings that revised the Standing Orders, Kibaki sat in one of the forums for five hours scrutinising proposed changes.

Marende, in apparent reference to the VP, accuses some ministers of "absenting themselves from the House when legislation is being passed" only to complain later about the outcome.