The National Assembly’s review of rules to allow Cabinet Secretaries into the House to respond to questions by MPs rekindles the controversial debate on Kenya’s governance system.

Kenyans rewrote the Constitution in 2010 to approve a presidential system whose highlights include a Cabinet picked outside Parliament and hence Cabinet Secretaries were to interact with Parliament through committees.

This is unlike the parliamentary system where, since the Cabinet is picked from among MPs, as had been the case for Kenya since independence, Question Time in the House offers opportunity for ministers to address members’ concerns.

The adoption of a report requiring Cabinet secretaries to appear before the House to respond to members’ questions therefore opens up fresh debate on the proper process of interaction between the Legislature and the Executive.

Under the presidential system, the Executive is meant to be kept out of the House. This provision gave rise to the practice of allowing the Leader of Majority and the chairmen of various House Committees to respond to questions on behalf of the Executive.

 Last week, MPs reviewed the rules and allowed back the CSs.  There are claims the changes attempt to fuse the two arms of government and partially reintroduce a parliamentary system of governance.

Majority Leader Aden Duale rushed to explain the changes on the floor of the House.

“In 2010, Kenyans went to a referendum and decided to choose a presidential system of government. We are not amending the Constitution. We want to assure the people of Kenya that this House has no powers to amend the Constitution without going back to the people,” said Duale.

The debate on Kenya’s system of governance emerged again last year when the opposition suggested a change from the current presidential system to the parliamentary system.

The mover of the Motion to adopt the report on the rules, TJ Kajwang’ (Ruaraka) yesterday clarified that the two systems are just a creation of legal scholars and historians.

“The two systems are simply structures that societies choose. No one said Kajwang.

Unsatisfactory responses

He believes the two systems can be used together and it is upon each democracy to decide the mechanisms through which the Legislature and the Executive interact.

“There has to be a structured form of interaction to allow us pick our issues in a civil manner,” he said.

The former system where committee chairmen regularly gave unsatisfactory responses appeared to have got under the skin of legislators, leading to the introduction of the new rules. Constitutional lawyer Edwin Mukele said that weaknesses in this structure were evident during House proceedings.

 “People were excited that such a system would work, but from what we have witnessed in the past one year, it has been a total fiasco. The system of having leader of Majority and chairmen of committees respond to questions has not served us well. The new rules were intended to cure the lacuna created by this institutional weakness,” he said.

Under Article 153 of the Constitution, Cabinet Secretaries are expected to provide Parliament with full and regular reports concerning matters under their control. Despite this express provision, none of the CS’s has presented a report during the one year the Jubilee administration has been in office. Only Treasury CS Henry Rotich has appeared to read the annual budget statement.

During debate in the House last week, members accused some chairpersons of committees of being “more executive than the Executive”.

It is not clear why it took the House one year to come up with the rules, but an MP involved in the formulation of the rules told The Standard that the Procedure and House Rules Committee was facing resistance from both in and outside the House.

“It took us a long time to circumvent the resistance. But we are happy that the Speaker was supportive. We even had to convince the President that the rules were good for the country,” the MP said.

Having laid down the rules, it now means that a Cabinet Secretary who fails to appear before the House to give a report on matters touching on his ministry sets himself up for impeachment.

In a bid to create a distinction between the Legislature and the Executive and in essence emphasise the Kenyan presidential system, the cabinet secretaries will not respond from the dispatch box.

The House has designated a spot – The Civil Service Bench – from where the CSs will give their responses to members’ questions. This means, in the strictest sense that the CSs will not be part of the House. The speaker will have the discretion to decide which questions fit the bill of ‘national importance’ before they are placed before the relevant ministry.

Former Law Society of Kenya (LSK) chairman Okong’o Omogeni said the new rules have no bearing on the presidential system of governance under the new Constitution and that they have been informed by the need for greater accountability by CSs.

“Under the current scenario, both the Leader of Majority and chairpersons of committees are unable to adequately respond to issues raised on the floor of the House.

Looking at the issue from a separation of powers perspective would be a narrow interpretation,” he said.

By coming up with the new House procedures, Kenya will be following in the footsteps of countries such as Chile, Brazil, Spain and Senegal.

It will however be a departure from the more developed American presidential system, where cabinet secretaries only appear before House committees to respond to issues raised in Congress.