The 2010 Constitution, which introduced a full presidential system of government, changed the way Parliament works in a way that has at times left members of the National Assembly confused.
For the first time since independence in 1963, Parliament has run its full term without the presence of the Executive on the floor of the House.
The supreme law removed the Executive from the House and loosened its tight leash on its calendar. It reintroduced a bicameral Parliament and strengthened the committee system through which parliamentary business is conducted.
Nearly five years after these changes were implemented, MPs are still struggling to adapt to them, with some even wishing the previous mixed presidential or parliamentary system remained.
“The presidential system is bad for Kenya because it is an attack on transparency and accountability,” Rarieda MP Nicholas Gumbo, the chairman of the National Assembly’s Public Accounts Committee, told the Nation in an interview last week.
In the current system, Cabinet secretaries are accountable to the Executive and not to the people, Mr Gumbo pointed out.
“The Cabinet secretaries are struggling to be good and to please the President and not the people they serve,” he added.
Mr Gumbo, who chaired the PAC in the last half of the 11th Parliament, argues hiding under the cover of technocrats, Cabinet secretaries have little regard to public accountability.
But Mr Muriuki Karue, the Nyandarua senator says the absence of the executive from the House has its advantages and insists this should be encouraged so as to promote the independence of the Legislature.
“The big issue is how, under this arrangement, we can get members of the Executive to answer questions and explain weighty national issues from the floor of the House, while maintaining the presidential system,” he said.
Suba South MP John Mbadi says the exit of the Executive’s representatives from Parliament had left a huge gap in so far as seeking accountability is concerned and that the current arrangement was not helpful.
“MPs have no responsibility over the running of the Executive and it’s illegal to purport to ask them to speak for or on behalf of the government,” he said in relation to committee chairs who answer questions from fellow MPs.
In the old dispensation, question time was a critical element of Parliamentary business through which ministers demonstrated to the public what the Executive was doing in terms of implementing development programmes. For the backbench, it provided them with an opportunity to bring to the fore the concerns of their constituents while at the same time directly questioning the government policy.
Question time was popular for both sides as it served their interests equally.
Apart from asking questions, MPs were given an opportunity to seek clarification from the ministers by asking supplementary questions, which in most cases, ended up with the government promising a policy proposal to deal with a particular issue.
But old habits die hard. Probably because of the long history and the sheer popularity of the order, its hangover still pervades Parliament long after it was discontinued.
Today, parliamentary business has an order called statements, which, essentially, retains similar characteristics as the question time, only that instead of the Cabinet secretaries, it is the chairpersons of committees who provide answers to questions by MPs.
Yet, that appears to be the main problem of this order.
First, the chairpersons are members of Parliament, and even as they purport to provide answers, written by bureaucrats in the ministries, this has blurred the separation of powers doctrine underlying the presidential system of government
In reality, the chairpersons possess no more information on the issues they respond to than the script they read to their colleagues and questions have been raised whether such an arrangement is necessary. In other words, MPs have been forced to speak for an institution – the Executive –that they are not part of.
In any case, the chairpersons have often times drawn blanks whenever the statements are subjected to further probe by MPs, something that has undermined MPs’ efforts to get answers to weighty national issues afflicting their constituents.
This confusion came alive in 2014 when the National Assembly, frustrated by constant delays in getting responses, amended its Standing Orders and formed the Committee on General Oversight whose purpose was to have Cabinet secretaries appear, in person, to field questions related to their dockets in the House.
The committee, chaired by the Speaker, was designed in such a way that the House would convert itself into a committee and the CSs would appear in person to answer questions put to them by MPs.
The committee took effect but it disappeared after only one sitting. It ran into political problems. While Attorney General Githu Muigai pointed out the committee was a “breach of the Constitution”, the CSs said they had no time. They noted that their jobs required them to be present at certain ministerial functions on behalf of the President, and that is why they had delegated their principal secretaries or even the directors of their respective dockets to deal with the parliamentary queries. The CSs argued that their hands were full as they oversee huge dockets and have no assistant ministers as was the case with previous governments.
In a letter to Speaker Justin Muturi, the AG noted that if MPs wanted CSs in the House, then they better amend the Constitution to “reconfigure the structure and membership of the Houses”.
The AG advised that if the Jubilee administration wanted to push government agenda in the House, then it would be the work of the Majority Leader; and in a case where the minority party forms government, then, that would be the work of the Minority leader.
“Under the Constitution, the duty of advancing government before the plenary of the Houses is squarely placed upon the leaders of majority or minority parties, as the case may be, who are constitutional functionaries established under Constitution,” he argued.
While supporting the exit of the Executive, the Nyandarua senator says the challenge that confronts Parliament is how to get CSs to the floor of the House to respond to questions from MPs.
“Much as you we want to force that government department to answer, when they do not want to, they can linger on and on, and there is little that we can do. But if they are going to be compelled to appear, that would be the answer, the long term answer,” he said.
For Mr Gumbo the answer lies in reverting to the full parliamentary or the mixed system that existed prior to 2010.
“The CSs can only be accountable to the people through their elected representatives and there is no two ways about it,” he said.
Mr Muriuki says Parliament should organise its rules to create something akin to the General Oversight Committee such that CSs will be compelled to appear before a committee of the whole House so that if they have the answer, MPs will have the opportunity to ask the question and any subsidiary questions.
Both Mr Mbadi and Mr Gumbo agree that public accountability would be best served if Kenyans adopted a purely parliamentary system or the mixed political system that existed between independence and 2013.
“If MPs were in the Cabinet they were first accountable to their constituents because they mingle with people a lot. The current crop of CSs have baptised themselves technocrats and are accountable to nobody.”
On the other side, the AG insists CSs have the option of sending statements and reports in response to MPs’ queries, and that the House committees have to accept that option.
Parliament’s term is drawing to an end but this debate is sure to continue beyond August 8.