NAIROBI: President Uhuru Kenyatta has introduced a curious culture in legislation that, just on the face of it, looks deeply flawed and if it continues, it will lay the ground for dictatorial tendencies that may chip away at the foundations of Kenya's five-year-old Constitution.
The legal question that now awaits the interpretation of the Judiciary is, what is the role of the President in legislation? To understand how fundamental that question is, we have to understand the legislative process. Here is what happens: For government bills, the Cabinet Secretaries send bills to the National Assembly and the MPs invite the public to give their views. The MPs also listen to the industry players. They also call Cabinet secretaries and they go through the bills clause by clause.
Based on the submissions, the MPs make a determination on what clause serves public interest and what clause has pecuniary industry interests and given that they are the representatives of the people with the authority to make all laws in the country, they go ahead and make those laws the best way they know how.
Once those bills are forwarded to the President for assent, the Constitution at Article 115 gives him the power to either assent to the Bill or "refer the Bill back to Parliament for reconsideration by Parliament, noting any reservations that the President has concerning the Bill".
The valid concern from the MPs is that powerful players in Government are (mis)using this clause to make laws that serve their interests or those of the Government irrespective of the concerns the people raised at public hearings. Never mind that these hearings are convened and paid for by the taxpayer.
The Government sends the bills to Parliament, if those bills are rejected, they simply go around and tell the President to reject the bills and send them back with proposed clauses – the clauses that were rejected in the first place. It is what happened in the Excise Duty Bill, 2015 which made the Opposition to storm out.
The MPs have read and re-read the Constitution. They understand that however clever you interpret it, the President's "reservations" to the bill cannot and should not amount to "recommendations". The President should say why he rejects a clause and tell MPs what he thinks will work and stop at that. He should not send clauses that have to be approved by two-thirds majority – 233 MPs.
The default position should be that if the President rejects the Bill, MPs have no option but to raise the two-thirds majority to have the bill approved without the President's "reservations." The MPs can take the reservations on board and approve the bill by simple majority. It is what used to happen and it is what happens in other jurisdictions.
The absurd situation that exists now, where MPs reject all the President's reservations and yet because they don't have the numbers, an unpopular bill becomes law, is wrong. It is illegal. If allowed to persist, the President can exploit his numerical strength and the disorganised opposition to single-handedly push through unpopular laws.
MPs express the will of the people. Their input must be taken seriously. Granted, MPs make illegal laws. But that is why the Judiciary exists to interpret those laws and strike out those that violate the Constitution.
That is why Speaker Justin Muturi must vacate his ruling that legitimises the mischief that has given President Kenyatta the powers to make laws. As the Judiciary mulls over the interpretation, it will be good to see "good faith" and the "people's will" exercised.
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