As the dust settles on the gruelling General Election, one thing that stands out is that Jubilee Party managed to pick up seats in areas that were considered opposition strongholds such as western Kenya, in Kisii, and in Lang’ata constituency in Nairobi.
As a result, JP will have a super majority in the National Assembly and a comfortable majority in the Senate.
Part of the reason this happened was that instead of Nasa consolidating votes, it allowed partner parties to field candidates, paving the way for JP to win 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 it.
This will hand JP a near two-thirds majority, a threshold that if attained, allows the ruling party to amend the Constitution – subject to the limitations set out in Article 255.
JP will not need the support or approval of the opposition to realise its legislative agenda.
Bills and 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 because legislative procedures and debate will turn into mere formalities.
The opposition will find it very difficult or even impossible to block government excesses such as wasteful spending, laws that discriminate or target those of differing opinions, those that suppress media freedom, free speech and access to information.
This is unlike the US Senate or Congress where the minority party can resort to paralysing legislative progress through 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 pillars could never be tampered with without the nod of the people through a referendum.
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 plebiscite.
Article 255 is the reason why Parliament has been unable to legislate on acceptable laws on Constituency Development Fund, the Affirmative Action Social Development Fund run by Woman 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 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 must be checked or it is likely to be abused.
The President, the majority and minority leaders in the National Assembly and Senate and Jubilee MPs must ensure that their super-majority is used judiciously and with magnanimity.
Jubilee should ensure that all Kenyans feel catered for by rolling out projects for all and sundry.
A free and independent media, civil society, the Judiciary and independent offices such as the Auditor-General, National Commission on Human Rights, the Ombudsperson and the Gender Commission will offer checks and balances for an executive that also happens to have an overwhelming majority in both Houses of Parliament.
Mr Kiprono is a senior legal officer, Article 19 Eastern Africa. [email protected] Twitter: @kipdemas Website: