By Ben Sihanya
‘Consultation’ is now crucial in Kenya, especially after the enactment of the National Accord and Reconciliation Act in 2008.
There are four parameters that give consultation meaning: the constitutional value of advice and advisory opinions; consultation in the narrow sense of rough consensus; consultation as agreement and concurrence; and consultation as compromise.
First, consultation in the management of public affairs entails varying degrees of advice, negotiation, agreement and consensus, so as to uphold the public interest. Usually consultation is necessitated by the imperative of inclusion and justice.
Second, the common term until 2000 was ‘advice’. Only a few statutes employed ‘consultation’. The late Justice John Gachuhi of the Court of Appeal clarified certain requisite elements of the statutory standards of consultation under section 12(b) of the now repealed Kenya Posts and Telecommunications (KPTC) Act. He held that consultation between the minister under the Act and the minister regarding telephone tariffs entailed one party writing a proposal to the other party, and the other party, after considering the proposal, writing back his or her views on the proposal.
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Thus, the Finance Minister’s indication of "approved" on his counterpart’s proposal to increase tariffs, without more, was overruled as void. The Court did not address whether or not there must be concurrence on the proposal, before it could take legal effect. Context should also guide the interpretation of the constitutional and statutory requirements of consultation.
Third, the constitutional text now has a requirement for consultation in various aspects of public administration. This is essentially a higher threshold. Notably, the (pre-2008) 1969 Constitution does not generally envisage consultation but provides for the exercise of public authority on the advice of certain constitutional bodies or actors. For example, the President should receive advice from the Cabinet on the Government.
And in exercising his prerogative of mercy, he should make his own decision, but after obtaining advice from the Advisory Committee on the Prerogative of Mercy. Consultation requires a higher threshold of engagement than advice. Under the 2010 Constitution, the text, structure and history envisages concurrence by the consulting parties before the decision can be deemed valid and legitimate.
The National Accord and Reconciliation Act, a constitutional text, at promulgation and through practice in various appointments, envisages consultation between President Kibaki and Prime Minister Raila Odinga as a device for power-sharing. Where, in a power-sharing agreement, one party still retains the sole powers to make unilateral decisions, that power-sharing agreement is null, void and unnecessary. In the context of the National Accord, consultation was deemed as a device for ceasefire and to inculcate a sense of inclusiveness between the literally warring protagonists, ODM and PNU supporters.
Consultation, in power-sharing agreements, has therefore been lauded for fostering ceasefires in the kind of conflicts and violence witnessed in Kenya, but also criticised for creating grid-locks in governance. In our zero-sum game political culture, grid-locks have positive impacts on governance, as they force the coalition partners to sober up and negotiate a compromise. Consultation plays the role of checks and balances on the exercise of the relevant powers and helps secure compromise and rough consensus on the basis of give-and-take.
Fourth, in the broader picture, the new Constitution, under Article 10(2) (b), provides for "inclusiveness" as a national value and principle for governance. This value has implications for the exercise of constitutional and statutory authority by various agencies State organs, State officers, public officers and all persons enacting, applying, interpreting or even implementing the Constitution, statutes and Government policy. The various organs charged with safeguarding the Constitution, especially the Judiciary, will play an increasingly significant role in guiding State and public organs and officers on how to interpret and operationalise constitutional values and principles in their duties as public administrators.
Indeed, the events of the last three weeks surrounding the nomination of the Chief Justice, the Attorney-General, Director of Public Prosecution (DPP) and Controller of Budget have opened up an important discourse in public administration in Kenya. Consultation will remain crucial as the principals facilitate the filling in of the relevant public offices in this crucial transitional phase.
—The writer teaches Intellectual Property and Constitutionalism at the University of Nairobi Law School.