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State needs to rethink how it manages legislative agenda

By Kamotho Waiganjo | December 9th 2013

By Kamotho Waiganjo

Kenya: The rejection of the entire Statute Law (Miscellaneous Amendments) Bill even after withdrawal of the contentious amendments to the PBO Act demands a serious rethink of how government manages its legislative agenda in a new constitutional framework.

A perusal of the rejected Bill reveals that some urgent and essential amendments became unfortunate casualties of the wholesale rejection. The essential amendments included extensions to the term of the Vetting of Judges and Magistrates Board, provisions removing a lacuna if the offices of the Auditor General and Controller of Budget were suddenly vacated and key amendments to the Public Finance Management Act seeking to reduce potential conflicts between counties on public investments.

Placing these essential and non-contested amendments in the same omnibus law together with vigorously contested amendments was an unwise choice. The end result was that until a fresh Bill is introduced, these critical issues remain unresolved and could be very costly for the country.

To avoid these scenarios in the future, several things need to happen. Firstly, government must avoid previous administrations’ tactics of using the limited window of the miscellaneous amendments to sneak in contentious and major changes to law. Unlike the past, the government voting machine in the House, which comprised a near guaranteed majority of Cabinet ministers and their assistants, is absent.

Those days, the doctrine of collective responsibility meant all members of government in the House invariably supported all government-initiated Bills. That season is no more. Jubilee may have the majority in the House, but member loyalty to government does not equal collective responsibility. The government must now convince the entire coterie of MPs, some of who are trying to cut for themselves an independence brand. Where the issue is straightforward, obtaining a majority vote is not difficult.

Woe unto government if the legislative proposals target areas where there are conflicting interests even within the Jubilee coalition as happened with the miscellaneous amendments Bill. In the rejected Bill for example, quite apart from the PBO issue, who honestly proposed to exclude the gender quota in the police force despite the clear provisions of Article 27?

In whose interest was it to exclude even basic parliamentary oversight for our security organs contrary to Article 239 which provides that security organs are subordinate to civilian authority? These are issues that had been settled on and accepted even by the security forces during the making of law. It was bad faith for the miscellaneous amendments Bill to be the route through which clawbacks were occurring. This kind of cloud hanging over a Bill guarantees its death, tyranny of numbers notwithstanding.

Secondly there must be a more effective framework of consultation between the Legislature and the Executive. In an ideal world, the political party would be the natural locus of consensus building on key legislative and policy propositions. Unfortunately one does not see the political parties within Jubilee coalition organising towards any strong institutional framework. In the absence of party machinery, links between the two arms of government need to be strengthened. This will not only build trust but will also allow ventilation of what are obvious unresolved issues between the two Jubilee siblings.

Finally this is the season of enlightenment. Government must learn to explain itself to the citizenry.

If government does not explain itself, not only does it open the opportunity for un-informed disagreement but it also allows the government’s myriad opponents to mislead the populace on its motives for the sake of partisan gains.

In seasons like this, one misses former Information PS Bitange Ndemo who used to have well reasoned and vibrant engagements with the citizenry on policy questions. Even if one disagreed with him, at least you knew what informed his thinking. The Jubilee administration could do with more doses of the Ndemo spirit.

The writer is an Advocate of the High Court of Kenya

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