BBI: The return of the Government in parliament

On May 9, 2012, 10 months to the general election, Cherengany MP Joshua Kutuny sought to know the government’s position on the election date from the then Prime Minister Raila Odinga.

The High Court had issued an advisory opinion that the election be held in March 2013. Raila, in his response before Parliament, was evasive and spoke of the different opinions within the government. He held the view that the elections be held in December that year.

But that was not what he had been asked, as the then Eldoret North MP, now the deputy president, William Ruto pointed out when he rose on a point of order that set the stage for one of their frequent showdowns.

“What is the government’s position on the date of this election? It is not about his opinion or anybody else’s opinion,” Ruto charged.

Goaded by his colleagues for a response, the former PM retorted that he had the right to answer a question as he pleased, before former Speaker Kenneth Marende stopped him short.

“You have put on record a very dangerous statement. Members of the front bench who are led by you in the House have a right to give accurate information to the House, not to answer the way they want,” Marende asserted as Raila retreated and answered the question that had been asked.

Raila was a partner in the Grand Coalition government that mirrors the structure proposed by the Building Bridges Initiative (BBI) report that will be launched today, at least as far as the composition of the front bench in Parliament goes.

The BBI report promises the return of government, in the broader sense, to Parliament – a departure from the current purely presidential system borrowed from the United States.

If the report sails through, members of the Cabinet, led by a PM and two deputies, will be drawn from the National Assembly. An opposition, led by a Leader of Opposition and a shadow Cabinet, would complete the government set-up in the House.

“Cabinet Ministers may be appointed from among members of the National Assembly,” reads the report in part, suggesting that Cabinet could comprise MPs and non-MPs alike.

In an interview with The Standard before his death, constitutional lawyer Nzamba Kitonga – who chaired the Committee of Experts (CoE) that framed the 2010 Constitution – said that that kind of “fusion” in which Cabinet comprised MPs and non-MPs was what his committee had proposed in the harmonised draft of the Constitution.

The move to draw Cabinet from outside the august House, according to constitutional lawyer Bobby Mkangi, a member of the CoE, was influenced by the aspirations of Kenyans as captured in a report by the Prof Yash Pal Ghai-led Constitution of Kenya Review Commission.

“Kenyans wanted to excuse Cabinet ministers from day-to-day political process… the primary focus was to professionalise Cabinet and have the president tap into other talents,” he said.

Appearing on Citizen TV last Thursday, lawyer Paul Mwangi, a member of the BBI task force, termed the current system “a bad experiment.”

Mwangi argued that the 2010 Constitution, the result of decades of a clamour for constitutional reform, put in Cabinet individuals who were out of touch with wananchi.

This view is shared by the Majority Leader in the National Assembly Amos Kimunya and Taveta MP Naomi Shaban, who spoke to The Standard in separate interviews.

But more importantly, Shaban and Kimunya, both of whom were ministers under Mwai Kibaki, believe that having Cabinet sit in Parliament would enhance accountability, as do many legal experts.

Kimunya posits that, while it was important to detach Parliament from the Executive, the absence of MPs in Parliament hampers direct oversight.

This – according to the once deputy leader of government business – is because statements are currently sought through chairpersons of committees who are not privy to deliberations within government.

“There is a direct accountability to Parliament (in the BBI proposal) as each of the ministers at one point can be asked a question. I sat in Cabinet meetings and when I spoke in Parliament I spoke on behalf of Cabinet. Right now I only get a briefing from the Attorney General,” the Kipipiri MP said.

Kitonga endorsed this line of thought.

“It is better to have outside Parliament for accessibility of ministers, as they will be based in Parliament, and for purposes of oversight,” Kitonga said on Saturday.

Ben Sihanya, a lecturer of constitutional law at the University of Nairobi, agrees that because they cannot appear in Plenary, Parliament is limited to whatever is divulged in committees.

However, he also presents a dimension of the cost of running government as a con in keeping the current dispensation.

“When a CS is summoned before committees they sometimes have to abandon their duties for the day. It is very costly to do so. Besides, MPs would not earn any other salary as ministers. Kenyans would be saving a lot,” said Sihanya.

Shaban – who has been an MP since 2002 – opposed the 2010 Constitution, and it had a lot to do with the governance structure it proposed.

The current system, she says, does little to curb episodes such as that of 2012, in which Raila attempted to evade a question, which often plays out currently.

“When an MP asks a question, the ministers respond to the committees however they please. The chairperson of such a committee is then left grappling in the darkness, trying to answer the question on behalf of the minister,” she said.

Kutuny’s question to Raila had been a follow-up to another he had asked seeking a comprehensive roadmap to a peaceful general election.

And the man who put the former prime minister in check, former Speaker Marende, believes that with Executive in Parliament during his tenure, there were “checks and balances in real-time”.

“When they are in Parliament they know that there is some other institution they must account to. And apart from being answerable to the president, they would also be answerable to the Speaker and the Legislature,” the former Speaker said.

But not everyone is convinced that the provision would have a bearing on accountability. Mkangi argues that accountability is influenced by broader aspects within society and it hinges on the frameworks put in place to ensure such accountability.

“The fact that a minister will be in Parliament to answer questions doesn’t necessarily mean they would be more accountable… having ministers in past Parliaments did not add any value in terms of accountability,” said Mkangi.

Kitonga had argued that owing to the fact the leader of opposition will have a shadow Cabinet, Kenyans would have an alternative form of leadership on offer.

But there are those who question the merits of having a loser in the presidential election nominated to the House to occupy the position of opposition chief.

“It is a fallback position for the loser of the presidential election so it is not so much an accountability issue. It is trying to tame the winner-takes-it-all axiom,” argued Mkangi, sentiments that were echoed by Marende.

The deputy president is also on record as opposing the creation of positions to serve the interests of election losers.

Others, however, see the proposal as necessary in keeping government in check.

Sihanya, for one, holds that the notion that the BBI creates positions for the sake of it is simplistic, as the occupant of such a position would represent a significant constituency whose say cannot be ignored.

“Many Kenyans expect persons referred to as leaders of opposition to perform the role of checking government. Why don’t we empower that office to perform such functions,” he posed.

According to Kimunya, no one is better placed to champion the opposition’s cause than their leader, ostensibly the presidential candidate in an election.

While the government-opposition arrangement has proven effective in advanced democracies, successive regimes in Kenya have found ways to stifle dissent within Parliament.

The 2018 handshake between President Uhuru Kenyatta and Raila that spawned the BBI process effectively killed an opposition whose voice was already muffled by the near-supermajority the Jubilee administration enjoyed in the House.