As the dust settles on the gruelling 2017 General Election, one thing that stands out is that the Jubilee Party managed to pick up seats that were previously in opposition strongholds — including in Western Kenya, and parts of Nairobi like Lang’ata constituency.
As a result, Jubilee will have a healthy majority in the National Assembly and a comfortable one in the Senate.
Part of the reason for this was that instead of the opposition National Super Alliance (Nasa) consolidating votes behind a single coalition candidate in some crucial seats, it allowed affiliate parties to field candidates thus allowing Jubilee to “pita katikati” and pick up numerous seats.
Jubilee’s majority might be further expanded if affiliate parties such as Kanu, Frontier Alliance Party, Maendeleo Chap Chap and Independent candidates decide to align themselves with the ruling party.
As such, this will hand Jubilee an even larger majority that could make it easier to attain the two-thirds threshold that allows it to amend the Constitution — subject to the limitations set out in Article 255.
Due to its majority, Jubilee will largely not need the support or approval of the opposition for purposes of realising its legislative agenda.
As such, money bills, key appointments that require parliamentary approvals and mega infrastructure projects will be easily passed.
Even constitutional amendments will not require intense lobbying.
The President will have an easy time pursuing his legacy and agenda.
However, the situation has the potential of stifling debate and engagement in the House because legislative procedures and debate will turn to mere formalities.
On the flip side, the opposition will find it very difficult or even impossible to block government excesses such as wasteful spending, laws that discriminate, those that target individuals or institutions of differing opinions, those that supress media freedom, free speech and access to information.
This is unlike the USA Senate or Congress where the minority party can resort to paralysing legislative progress through calculated filibuster tactics.
Because of the real danger of legislative monopoly and the potential for constitutional mutilation, the designers of the Constitution inserted Article 255 ostensibly to ensure that certain fundamental constitutional pillars could never be tampered with without the nod of the sovereign people of Kenya through a referendum.
SEPARATION OF POWERS
As such, amendments dealing with separation of powers, territory of Kenya, the supremacy of the Constitution, the Bill of Rights, term of office of the President, functions of Parliament, the Judiciary and constitutional commissions, objects, structure and principles of devolution must be done via a referendum.
Article 255 is the reason Parliament has been unable to legislate on acceptable laws on Constituency Development Fund, the Affirmative Action Social Development Fund run by Women Representatives and the Senators Oversight Fund mainly because these Bills attempt to give legislators executive functions contrary to the principle of separation of powers and constitutional provisions that confer executive powers on the President and Governors and their respective cabinets.
The principle of separation of powers dictates that authority be divided between the Executive, the Legislature and Judiciary and not be concentrated in one.
The rationale is that these branches of government be separate and distinct because of the innately corrupting nature of power.
If the body that allocates monies is also in charge of spending it, who will carry out oversight? Who do they account to?
Power, in other words, must be checked or it is likely to be abused.
Guided by the transformative nature of the 2010 Constitution, Kenya’s past “bad manners”— such as amendments that entrenched one party rule and scrapped the Upper House during the country’s formative years — the President, the Leaders of Majority in the National Assembly and Senate and Jubilee MPs must ensure that their super-majority will be utilised judiciously and with magnanimity.
Jubilee should seize this opportunity to ensure that all Kenyans feel catered for by rolling out projects that will be felt by all and sundry.
This agenda should strive to bring prosperity to all Kenyans regardless of political affiliation or ethnicity.
More than ever, a free and independent media, civil society, the Judiciary and independent offices such as the Auditor-General, Kenya National Commission on Human Rights, the Ombudsperson and the Gender Commission will offer much needed checks and balances for an Executive that also has an overwhelming majority in both Houses of Parliament.
The writer is a Senior Legal Officer, ARTICLE 19 Eastern Africa [email protected] @kipdemas