CSs attending Parliament is unconstitutional, analysts now say

Prof Gitile Naituli of Multi-Media University argues that the process was done illegally because no one or no organ is allowed to change constitutional provisions through either standing orders or through an Act of Parliament.

"What they did offends article 153 (3) of the Constitution meaning that anyone who will go to court will stop what they are doing... it seems they also don't have proper legal counsel," said Naituli.

Section 153(3) of the Constitution says a Cabinet Secretary shall appear before the National Assembly or Senate and answer a matter for which he or she is responsible.

The Constitution is supreme and supersedes all other laws including Acts of Parliament and previous attempts to make such amendments have been quashed by the courts.

Prof Naituli argues that the MPs changed a function which is protected under article 255 that provides for the amendment of the Constitution, negating the fact that what they did could only happen through a referendum.

He clarified that the Bill of rights, functions of Judiciary, the Office of the President, Parliament and independent commissions are protected by article 255.

"Anything touching on those four areas must be decided through a referendum and so what they did will without doubt be knocked off by court if someone challenges it," he said.

Further, he opines that MPs need to decide whether the country should move into a fully parliamentary system of government which can also create a lot of instability.

Naituli gave the example of the parliamentary system in the United Kingdom where prime ministers are changed six times in three years, something Kenyans cannot do, meaning it could easily create chaos.

Kenya should have adopted a mix of the parliamentary and presidential systems, as was proposed in 2005 by the Parliamentary Select Committee on the Constitution in Kilifi, chaired by former minister Simeon Nyachae.

That draft could have done away with the current presidential system that has been abused since 2013 until now by presidents who appoint people rejected by the Constitution.

"American presidents don't do that because their parliamentary committees are very strong. They have magisterial powers, which empowers them to recommend jailing Secretaries who fail to honour summons," says Naituli.

In contrast, Kenya's parliamentary committees are weak because Parliament is controlled by the Executive.

The American system has also failed to work properly in Kenya because the winner takes all government in Kenya is translated to be equivalent to a limited company owned by majority shareholders.

Naituli argues Kenyan leaders are very crude in running this government system, because they only appoint tribesmen and friends and yet Article 10 of the Constitution talks about inclusivity and regional balance.

He says inclusivity and regional balancing was largely ignored by both Presidents Uhuru Kenyatta and William Ruto, with only President Kibaki trying to obey it even though he worked under the old Constitution.

The structure can be modelled on the Judicial Service Commission format of appointment of judges, which appears to be working well although now it is also packed with presidential appointees.

Analysts opine that there is need for a Public Service Commission that is properly balanced and independent, together with the JSC, so that they can remedy tribal appointments in public service.

It has also been argued that the opportunity provided by the raging debate on reforms should be used to stop interference with the offices of Cabinet Sectaries by Parliament.

Lawyer Stanislas Murunga rues the decision to ignore the Constitution in summoning of the CSs, and further laments that there is a complete violation of separation of powers in the current and the previous parliaments.

He says Constitution review should be included in current discussions because there is reasoning by the population that issues like distribution of resources to counties should be relooked into.

Prof Naituli also wants Kenyans to think carefully and see whether they need a national conference to strengthen the Constitution and make sure that it is not abused.

Kenyans will in the process also have their say on the management of government and CS offices and also issues like the Constituency Development Fund which MPs are still controlling even though it was declared illegal by the court.

"You can't have a constituency with 7,000 people getting the same amount with one with 400,000. Revenue distribution is supposed to follow human needs and therefore population becomes more important than size," says Naituli.

He however thinks the bipartisan committee of parliament has a very narrow mandate and cannot therefore fully handle all the burning issues that should be dealt with in the current discussion.

He proposes that external experts be included to enable the committee widen its scope of discussion and public discourse so that they can touch all areas.

Murunga also thinks that in the current format, they may end up only discussing the cost of living which is the work of parliament.

That, he adds should just be done through moving a motion in parliament for appropriate policies like reduced taxes to be enforced by the government

The analysts agree that discussing the structure of the Independent Electoral and Boundaries Commission (IEBC) should be handled by the bipartisan committee.

There is also a very strong feeling that there is need to revisit the Building Bridges Initiative (BBI) that is being implemented in bits through Parliament by Ruto's administration.

"I opposed it because I was in the Linda Katiba team but I think the biggest problem was the way it was introduced with a lot politics and vested interests which didn't allow people to have a proper look at it," says Naituli.