Real power is in the hands of legislators and not president

Parliament Buildings, Nairobi. [Wilberforce Okwiri, Standard] 

This election, like the previous two, seems to be missing out on a critical aspect of the Constitution: The central and consequential place of Parliament. Instead, the country seems to only obsess over the presidency when, in constitutional terms, Parliament has more substantive and potent powers than those of the president.

The Constitution assigns Parliament three substantive powers: Lawmaking, budget allocation and oversight. This largely sounds characteristic of what most parliaments in the world do – but it is not for a number of reasons.

First, because of the emphasis in our constitution on the rule of law as a foundational principle of governance; second because of Parliament’s significant power over the national purse; and third because Parliament has a quality control function of making sure the executive is properly implementing the law and prudently utilising public resources.

Explicitly clear

Let’s start with the rule of law. Our constitution emphasises the centrality of rule of law in all aspects of governance. Courts have explained that the constitutional principle on the rule of law means that every government or state action and every exercise of state power must find its legitimacy in law or rule. In fact, courts often invalidate government’s actions that are not anchored on law or rule.

Yet, the Constitution is explicitly clear that only Parliament has the power to make any provision that has the force of law except where the Constitution or a law – passed by Parliament - specifically allows a person or body to do so. With the exception of county assemblies, there are very few instances that the Constitution has conferred other persons/bodies the power to make law or rules and in fact none to the president or national executive.

Statutory instruments

True, Parliament does regularly allow the executive to develop regulations and rules to guide the implementation of primary statutes and its administrative actions, but even then, Parliament retains a significant oversight role through the Statutory Instruments Act and other oversight tools to check whether the executive gets it right.

Essentially, because everything the president and the executive do must be guided by law, a parliament that appreciates its powers will always have a leash on the executive but not necessarily vice versa. Not vice versa because, if Parliament needs to do something that is unpopular with the president or the executive, it would just have to pass the law enabling for such action and then require the executive to implement it.

Critically, Parliament retains the tools to force executive's compliance including the ability to remove Cabinet secretaries and in the extreme to impeach the president or the deputy president. Perhaps, the only time the president has some formal power over Parliament is through the assent of the laws – but even then the Constitution overrides that power if a president refuses to timeously assent to a law passed by Parliament or where the president indicates reservation yet parliament fails to agree with his or her reservation.

Perhaps the most consequential new power the 2010 Constitution gave to Parliament, yet the one the 11th and 12th Parliament were most clueless at utilising, is the budget-making power.

Most of the power on budget is assigned to National Assembly and includes the power to determine the level of allocation between national and county governments (shared with the Senate) and the power to decide how much money to allocate to each organ of the national government and the state. Essentially, because money shapes a government’s priorities, Parliament has a significant sway – utilising its formal and informal power - on what the president and the executive ought to focus on.

Straight and narrow

Even more, after making the laws and allocating the money, Parliament is accorded the oversight power which, properly utilised, means following up (mostly with the executive) to ensure proper implementation of the laws it has passed and money it has allocated. Again, where the executive strays, Parliament is accorded the tools to force the executive back into the straight and narrow.

The Constitution added another critical element to Parliament’s oversight powers – that of scrutinising and approving most of the consequential appointments of a president, including Cabinet and principal secretaries, ambassadors etc. In fact, a creative and robust Parliament would understand that the power to oversight appointments by the executive is elastic and properly leaned on could even be used to determine the fate of appointees and public servants of relative low ranking within government.

This is not to say that Parliament can run roughshod by being either arbitrary, petty, retaliatory or punitive at how it exercises its law-making, money allocation and oversight powers. Far from it. Parliament still has to be guided by the Constitution and its actions are open to challenge and then to objective audit on their constitutionality and legality by the courts. Still, these immense powers assigned to Parliament means that a suave Parliament, operating optimally, likely has the upper hand of all organs of the state (presidency included) to determine governance priorities.

I recognise that my arguments on Parliament’s power vis-a-vis that of the president may be somewhat acontextual because they fail to acknowledge the complex nature of how the corporate entity that is Parliament functions and the diverse interests involved and hence the difficulty of achieving parliamentary coherence. True.

Still, those who have closely observed parliamentary design similar to ours with parliaments that are functionally efficient, know that the design provides significant powers to individual members as well as to the corporate entity. In such parliaments, when individual members and especially the head of parliament understand and fully exercise their power, the potency of the law-making organ is mostly incomparable to the executive.

And yes, that nuanced context requires more acknowledgement and consideration. However, my overall argument remains valid because it is validated by and anchored in our constitutional design.

Hence, even as we get euphoric about presidential choices – we have to appreciate where the true and most consequential constitutional power lies: Parliament. In the past, most of those we have chosen as MPs have been quislings or outright charlatans.

More important

They either are too clueless to understand the constitutional powers of their office or are insatiably and gluttonously transactional that all they care about is using their office for self-aggrandisement. Or both. Because of their nature and small-mindedness, they fail to see the big picture on the immense power the Constitution has accorded the State entity they belong to.

On August 9, 2022, the decision of who we send to Parliament will just be as important – if not more important - than who we vote for to be president.

And still while at it – if you have to advise the runner-up, tell them to avoid entertaining the emetic thoughts about a possible handshake and instead go be speaker of the National Assembly. Like the governor position in 2013, it will initially look small, but if the person appreciates the enormity of that office and its power and aligns his ambition with the dictates of the Constitution, it might become the most consequential and sought-after office in the future.

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