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Why the 13th Parliament owes us a greater duty of objectivity

The National Assembly during an afternoon session. [Elvis Ogina, Standard]

On several occasions, the President has expressed hope and desire that the Executive will be held to account by a robust Opposition.

On the campaign trail he categorically ruled out any possibility of negotiating with the opposition to form a “Nusu Mkate” government. More recently, the president directed that members of the Executive should have time to brief Parliament on the workings of government, and have Parliament interrogate them on the floor of the House.

These are pointers to a great commitment to nurturing an accountable government. The onus therefore falls on the Opposition and Parliament to play their role in keeping the Executive in check.

In this context, the ruling that Kenya Kwanza are officially the majority coalition in both houses of Parliament brings with it critical considerations for the members of Parliament. Recent activities in Parliament have indeed brought to the fore the critical need for individual members to take their role as the people’s representatives with greater responsibility.

In leadership and governance, the oversight role of an organisation is usually played by the governing board. Such boards typically work through Standing Committees – in much the same way as our Parliament does. The board is therefore charged with developing policies and monitoring the overall activities of the executive in line with the vision and mission of the organisation. In so doing, the first and most important corporate duty of the board is what is generally known as its fiduciary duty.

This is the expectation of the board and its members to always act in the best interest of the organisation. It can thus be said the first and foremost responsibility of Parliament is its fiduciary duty – to act in the best interest of Kenyans.

Back to corporate governance, the two main fiduciary duties expected of boards – collectively and individually – are the Duty of Loyalty and Duty of Care. By its very phrasing, the Duty of Loyalty is a commitment by members to always act in the best interest of the institution. This is an expression of their loyalty to the members or shareholders that appointed or entrusted the responsibility to them. The Duty of Loyalty therefore requires board members to act in utmost good faith and with the conscientiousness, fairness, morality, and honesty devoid of personal interest.

In the context of our Parliament, the Duty of Loyalty means that, whereas it may be true that there may be a party position on a particular matter, members must nevertheless always act in the best interest of Kenyans who entrusted the great task of leadership to them. It would be a great breach of this Duty of Loyalty if members knowingly make decisions obviously contrary to the aspiration of Kenyans, simply because they have been whipped to support such an agenda.

The second fiduciary duty in governance is the Duty of Care. This is a commitment by the board and its members to undertake all tasks with due diligence. The Duty of Care thus requires that board members make decisions with reasonable diligence and prudence in pursuit of the interests of the organisation. The implication is that having been elected or appointed to office, a board member cannot be flippant in their conduct.

Duty of Care therefore requires members prepare adequately for meetings, engage actively in all deliberations, think objectively about issues, and consider critically the best solutions.

For members of Parliament, this is a critical call, because every decision they make will in most cases have far reaching implications for Kenya and Kenyans. Members must therefore commit to interrogate every matter that comes to the floor of the House with utmost diligence. This can only happen when every person prepares adequately for every session of Parliament and participates actively in all debates. It would therefore be a great travesty if members – whether collectively or individually – chose the path of expediency or pass matters without due care. Thankfully, in this particular Parliament, such contravention would be unnecessary since the President has personally pronounced himself on the matter – desirous of a robust interrogation of issues in the best interest of Kenya and Kenyans.