Par­lia­men­tary dic­ta­tor­ship a frontal as­sault on democ­racy

Daily Nation (Kenya) - - SUNDAY REVIEW -

Abois­ter­ous black cat that waltzed into the Kenyan Par­lia­ment on De­cem­ber 7, 2018 brings to mind the sagely words of the for­mer Chi­nese re­formist Pres­i­dent Deng Xiaop­ing: “It doesn’t mat­ter if a cat is black or white, so long as it catches mice”. The un­in­vited guest from the fe­line world — con­sid­ered a sym­bol of evil omen in some cul­tures and as­so­ci­ated with good luck and pros­per­ity in others — may have pro­vided a cathar­tic re­lease and com­edy. But it is a par­lia­ment rapidly los­ing its moral shine that is both­er­ing the Kenyan pub­lic.

Par­lia­ments are ev­ery­where los­ing their moral glow, be­com­ing as­so­ci­ated with the re­turn of dic­ta­tor­ship. In an Oc­to­ber 2006 ar­ti­cle, Si­mon Jenk­ins satirised the British House of Com­mons as “God’s Gift to dic­ta­tor­ship”. Closer home, Bernard Amaya warned that par­lia­men­tary dic­ta­tor­ship is pos­ing “a ma­jor threat to democ­racy” in Kenya (DN, 23/10/2014).

Par­lia­men­tary-based dic­ta­tor­ship is mor­ph­ing into a salient fea­ture of the world­wide demo­cratic re­ces­sion. Africa’s in­creas­ingly rogue par­lia­ments are un­der­min­ing the prin­ci­ple of sep­a­ra­tion of pow­ers be­tween the three arms of govern­ment.

In Kenya, as else­where, colo­nial­ism’s most en­dur­ing legacy on gov­er­nance is what Martin Wight de­scribed as the two great prin­ci­ples of sub­or­di­na­tion:

The sub­or­di­na­tion of the colo­nial ex­ec­u­tive to the im­pe­rial govern­ment and the sub­or­di­na­tion of the leg­is­la­ture to the colo­nial ex­ec­u­tive.

Kenya’s tran­si­tion from colo­nial­ism to the post-colo­nial state based on a West­min­ster sys­tem of par­lia­men­tary govern­ment ended the di­rect sub­or­di­na­tion of the ex­ec­u­tive to White­hall. But the colo­nialera sub­or­di­na­tion of the leg­is­la­ture to the ex­ec­u­tive con­tin­ued un­der the one party state (1969-1992). How­ever, the for­tunes of ex­ec­u­tive dic­ta­tor­ship waned as those of par­lia­men­tary au­thor­i­tar­i­an­ism soared un­der Pres­i­dent Mwai Kibaki (2002-2013).

Af­ter 2013, the Par­lia­ment’s power is hoisted on two pil­lars. One is the 2010 Con­sti­tu­tion, which del­e­gates sov­er­eign power to the leg­is­la­ture as one of the state or­gans. The other is par­lia­men­tary priv­i­lege that grants le­gal im­mu­nity and pro­tec­tion to MPS against civil or crim­i­nal li­a­bil­ity for ac­tions done or state­ments made in the course of their leg­isla­tive du­ties in par­lia­ment.

In Novem­ber 2018, In­te­rior Cab­i­net Sec­re­tary Fred Ma­tiang’i protested that some MPS are abus­ing par­lia­men­tary priv­i­lege to in­tim­i­date mem­bers of other arms of the Govern­ment.

Par­lia­ment is clash­ing with other arms of govern­ment at five lev­els. First, the ex­ec­u­tive, civil so­ci­ety and the pub­lic are re­sist­ing ef­forts by MPS to award them­selves hefty perks. With a salary and al­lowances amount­ing to over Sh1.2 mil­lion ($11,703), Kenya’s 416 leg­is­la­tors are al­ready among the best paid in the world.

But at least twice, Pres­i­dent Uhuru Keny­atta has told off leg­is­la­tors on their quest to en­hance their perks. Re­cently, leg­is­la­tors have locked horns with the ex­ec­u­tive over the Par­lia­men­tary Ser­vice Bill

2018, which seeks to pro­vide a rent-free house, a govern­ment ve­hi­cle, an ex­panded med­i­cal cover, travel al­lowances and an ex­panded con­stituency out­reach oper­a­tion to 416 leg­is­la­tors. On De­cem­ber 5, Pres­i­dent Keny­atta said he will not sign the Bill into law, but MPS are con­fi­dent of gar­ner­ing the two thirds ma­jor­ity needed to over­turn a pres­i­den­tial ob­jec­tion me­moran­dum.

Ear­lier on, in Septem­ber, Par­lia­ment was on the war path over the pres­i­dent’s pro­posal on eight per cent Value Added Tax on fuel. The House passed the pro­posal, al­beit nar­rowly and ac­ri­mo­niously.

The leg­is­la­tors’ push for perks comes against the back­drop of a de­bil­i­tat­ing wage bill. Kenya’s cur­rent wage bill stands at 53 per cent of the na­tional bud­get. Ear­lier on in July 2017, the Salaries and Re­mu­ner­a­tion Com­mis­sion moved to re­duce the wage bill, an­nounc­ing a sig­nif­i­cant salary cut for state of­fi­cers, in­clud­ing the Pres­i­dent, Deputy Pres­i­dent, MPS, CSS and other of­fi­cials. On Novem­ber 23, 2018, the Com­mis­sion rightly noted that the call by MPS for higher al­lowances would not only in­crease the bur­den of the tax­payer, but it would set an un­sus­tain­able prece­dent for pub­lic ser­vants.

Sec­ond, the Se­nate, ev­ery­where held as a check against the po­ten­tially ex­ces­sive pow­ers of a pop­u­larly elected Lower House, has it­self faced the wrath of an all-pow­er­ful par­lia­ment. In 2014, dur­ing the de­bate on the Divi­sion of Rev­enue

Bill, Se­nate had to seek the in­ter­ven­tion of the Supreme Court to as­sert its role in the bud­getary process.

Third, MPS have clashed with the Coun­cil of Gov­er­nors over the Na­tional Govern­ment Con­stituen­cies Devel­op­ment Fund (NG-CDF). MPS con­trol this fund which ded­i­cates a min­i­mum of 2.5pc of all Na­tional Govern­ment’s share of an­nual rev­enue to en­hance grass­roots devel­op­ment. In Fe­bru­ary 2015 the High Court de­clared the CDF un­con­sti­tu­tional and di­rected Par­lia­ment to align the fund with the Supreme Law.

The generic ju­rispru­den­tial prob­lem with the CDF is that it vi­o­lates the prin­ci­ple of sep­a­ra­tion of pow­ers. Democ­racy dic­tates that one can­not make the law and im­ple­ment it! Fourth,

Newspapers in English

Newspapers from Kenya

© PressReader. All rights reserved.