Unease in Government over MP's move on Cabinet team

National Assembly Speaker Justin Muturi.

Nairobi, Kenya: Details have emerged of an explosive exchange between the Speaker of the National Assembly and the Government’s chief legal adviser over a push by Members of Parliament to have Cabinet Secretaries (CSs) appear, in person, to field questions related to their dockets in the House.

The Standard established the behind-the scenes power struggle a day after National Assembly Speaker Justin Muturi met President Uhuru Kenyatta’s Cabinet at Nairobi’s Parliament Buildings for talks at which CSs expressed their discomfort with the arrangement that had been done away with following confinement of Cabinet seats to non-political technocrats.

The push and shove has created a stalemate between the two arms of Government, with Attorney General Githu Muigai insisting that if CSs are allowed to "participate in the ordinary business of Parliament" then it will blur the constitutional doctrine of separation of powers."

The AG further argues the physical appearance of a CS before a House committee is not mandatory.

A well-placed source familiar with the intrigues over the issue explained there were still valid questions regarding the new push that takes effect mid this month.

The source warned that a fresh stand-off between the Legislature and the Executive was brewing despite the proceedings of the Tuesday meeting between the MPs and the CSs, where Speaker of the National Assembly Justin Muturi and Majority Leader Aden Duale told the Cabinet team there was no backtracking on the decision because it was meant to enhance accountability and deal with those who do a sloppy job.

Mundane queries

The confidential correspondence seen by The Standard reveals that the Executive was uneasy with the idea of having the CSs appear before MPs in person to answer mundane queries about insecurity, a cattle dip, a dispensary, a murram road, a polytechnic or even a pensioner in their respective constituencies.

In the AG's view, CSs had the option of sending memos, statements and reports in response to MPs' queries, and that the House committees had to accept that option.

"It is instructive to note that the ministerial responsibility towards Parliament may either be executed in writing or through oral narrative. A Cabinet secretary may choose to respond to a committee in writing unless otherwise required to appear in person," Prof Muigai noted in his explicit letter to Muturi.

He warned Muturi that MPs should not just issue summonses to CSs just because the ministers failed to appear.

The AG said the judicial power 'donated' to Parliament to issue summonses had "to be applied sparingly and cautiously".

The AG maintained 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 leader of majority or minority parties, as the case may be, who are constitutional functionaries established under Article 108," argued Muigai.

Then, perhaps aware that Muturi and the 349 lawmakers were likely to amend the House rules just to have CSs appear before the House, the AG had said such a change would be a "breach of the Constitution".

The clincher in the AG's letter was that if Muturi and the MPs wanted CSs in the House, then they better amend the Constitution to "reconfigure the structure and membership of the Houses".

Perhaps it is with the AG's advisory in mind that the CSs expressed their displeasure with having to appear before the National Assembly.

Though the CSs were mum and jocular when they met Muturi for the sumptuous breakfast on Tuesday, they appeared uneasy with the push to have them answer MPs.

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 are full as they oversee huge dockets and have no assistant ministers as was the case with previous governments.

Also being technocrats, except the three former politicians among them, they are livid about having to be exposed to partisan political intrigues common in the House and generally being hounded by MPs. It is for this fear that the Speaker sought to assure them that they would be protected from "lynching".

They reminded MPs that if they missed CSs in the National Assembly, it was because they were still stuck in the old dispensation, which was done away with after the election of the current MPs. The CSs do not have deputies.

Dr Fred Matiang'i (Information and Communication) and Michael Kamau (Transport and Infrastructure), were bold enough to caution the Speaker and MPs about the proposal. They noted that even the Senate demanded their attention, and they were unwilling to use all their time just dealing with MPs.

But their colleagues, former politicians Najib Balala (Mining), Charity Ngilu (Lands, Housing and Urban Development) and Kambi Kazungu (Labour) were so intent to re-live their days before the dispatch box, that they welcomed the opportunity.

Kambi even asked for a copy of the Standing Orders, to learn the new rules.

However, it is the pressure for time that forced the CSs to turn to the AG for help, to find a way to escape dual or triple summonses from the august House.

Kamau and his colleagues hold the view that it was an unwarranted duplication of parliamentary duties for two committees from the Senate and National Assembly to probe the same issues concurrently. That determination will be made when the AG returns from Arusha, Tanzania, where he's holding a meeting.

It is the AG's legal opinion, which appears to block the physical presence of the CSs from appearing before House committees and Parliament, that rattled Muturi and the Procedure and House rules committee, to an extent that they amended the rules to form the committee on General Oversight.

Muturi shot back at the AG, saying his advice asking MPs to amend the Constitution if they needed CSs in the House was a bit misplaced.

"The admittance of Cabinet secretaries to the plenary of the Assembly to provide regular reports has nothing to do with the composition of the House, as their role is merely facilitative to the performance of functions of the House," argued the Speaker in his letter.

He added that if the courts wanted CSs to appear, they would; and the same applied to Parliament.

Physical presence

Muturi insisted that the House was right to amend the House rules to find a way to get the CSs in the House. He said this was because, the relevant Article (153(3)) obligates the CSs to attend before a committee to answer any question, and that it "denotes physical presence and not written communication".

Muturi argued that the CSs had no latitude to choose how to appear.

"The Constitution does not specify what type of a committee that the Cabinet Secretary should attend... The choice of the committee is the preserve of the legislature," said the Speaker.

Article 153(4)(b) also requires full and regular reports.

To the Speaker, the Article is silent and requires procedural clarity to be activated.

"The clause is silent on the procedure, manner and frequency of the reporting obligation and this leaves room for these issues to be addressed either in the procedural aspects of the Assembly or by law made by Parliament," the Speaker noted.