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Chapter 7 Executive Powers and Functions in Kenya And CHAPTER 7 EXECUTIVE POWERS AND FUNCTIONS IN KENYA AND AFRICA CONCEPTS, THEORY AND HISTORY This Draft Chapter may be cited as: Ben Sihanya (forthcoming 2019) “Executive Powers and functions in Kenya and Africa: Concepts, theory and history,” in Ben Sihanya (2019) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya 7.1 Conceptualising Government or Public Power in Kenya and Africa1 We review three inter-related constitutional questions on public power in Kenya and Africa. First, what are the three sets of public or governmental powers in Kenya and Africa? Second, what are some of the components of these powers? Third, how are these powers shared horizontally and vertically? 7.1.1 The three powers and arms of Government in Kenya and Africa The three sets of powers are legislative, executive and judicial and these are exercised by the Legislature, Executive and Judiciary respectively. Significantly, there are sometimes overlaps mainly arising from the doctrines of fusion and separation of powers as well as checks and balances. Some of these are captured in the Fourth Schedule to the Constitution of Kenya 2010. Similar provisions are found in the relevant constitutions and statutes or regulations of Nigeria, South Africa, Uganda, Tanzania, Ghana, US and UK. The Sixth Schedule has been in debate in terms of the vesting, transfer and exercise of powers between the national and county government. 7.1.2 The “nature” and character of executive powers in Kenya and Africa What is the character of executive powers? 7.1.2.1The character of executive powers Executive powers are urgent, efficient, direct and ubiquitous e.g. impounding Pattni’s passport for fear that he may leave Kenya while criminal charges were pending against him. An example that is problematic from the perspective of the Bill of Rights is the amendment to section 31(1) of Kenya Citizenship and Immigration Act to give power to an immigration officer or any other law enforcement officer. This is the power to suspend or confiscate a passport or other travel document where, subject to the Constitution, any other circumstances which in the opinion of the Director would be prejudicial to the interest of the State or holder of the passport.67 Legislative powers generally take a longer process.2 1 Powers, jusrisdiction, rights and liberties to be conceptualized and listed in Chapter 1 of CODRALKA 1 and cross referenced in this and other chapters. 2 However, from time to time, when the Legislature wants to make decisions that may raise public outcry, it has been seen to shorten the deliberative process and make very quick decisions. Cf. The amendment to the Finance Bill giving MPs a KES 9.3million send-off each. This was passed by Parliament almost instantly. 1 The Executive generally takes shorter process in deciding (however, cf. criticism of bureaucratic red tape).3 7.1.2.2 The “nature” of the Executive powers What does the executive execute? The executive was headed by the President between 1964 and 2008. Since then, the head of the executive has been divided. These powers are both efficient or executive and ceremonial or dignified.4 It has been argued that the main role of the executive is to execute, implement, enforce or apply the laws and policies and particularly laws made by Parliament and interpreted by the judiciary. While the nature of executive powers has not attracted as much judicial or other scrutiny in Kenya, the exact meaning of the Executive Power Clause, and by extension, executive powers, has been debated widely in the west.5 Scholars have developed a three-pronged typology for studying executive powers.6 First, under the specific-grant or enumerated power theory the Executive functions and powers have to be provided by law and it’s the function of the executive to execute these functions as provided for by law.7 Second, the residual power theory posits that executive power is that which remains of the functions of government after the legislative and judiciary powers have been removed. Third, the inherent power theory is to the effect that power, executive functions are in inherent in the executive with no need of such functions being defined by law. Halsbury argues that, “Executive functions are incapable of comprehensive definition for they are merely the residue of the functions of the government after judicial and legislative functions have been taken away” (my emphasis). Prof JB Ojwang’ argues that the Executive is the principal policy-making organ under the Constitution and that it comprises a political segment. It is supported by policing and 3 Goldenberg not regulated; Anglo Leasing? Then Minister for Justice and Constitutional Affairs Kiraitu Murungi said that Anglo Leasing was the scandal that never was. President Uhuru Kenyatta paid Kshs. 4.1 Billion in a quick and suspicious move. See Standard Digital Reporter (2014) “Government Authorises payment of Anglo-leasing debt,” May 15, 2014, at http://www.standardmedia.co.ke/?articleID=2000121286&story_title=Kenya:%20govt- authorises-payment-of-anglo-leasing-debt (accessed 11/6/2014). Cf. Peter Mwangi Kagwanja (2012) Kiraitu Murungi: An Odyssey in Kenyan Politics, East African Educational Publishers, Nairobi. (sanitizing Kiraitu’s excesses and packaging him for higher officer for the 2013-…. Electoral cycle). 4Administration; appropriate CS and PS; Regal, Head of State, conferring honours; Head of Government- executive; NLC; nominated or appointed. 5 Cf Jackson and Tushnet (2006) Comparative Constitutional Law, 2nd edition. 6 Ben[jamin] O[bi] Nwabueze (1974) Presidentialism in Commonwealth Africa St. Martin’s Press, New York, 2,5,10 7 Of all arms and agencies of government, only the High Court has inherent powers. And even this is limited to the judicial review and not appellate functions. And this the case in spite of claims of inherent power by some American Presidents like Lincoln or by the Kenyan apex court. 2 enforcement segments.8He adds that both legislative and judicial functions are defined in a relatively neat and clear fashion by specific laws, principles, rules and doctrines. Because of its essentially indeterminate nature, Executive power is residual and therefore difficult to define, control or regulate. The logical conclusion, in this context is that, the task of constitutional theory and process is to define and control these powers (hence quest for constitutional government, constitutionalism, the rule of law, democracy, human rights, etc). John Locke argues that where the legislative and judicial powers have been distinctly and specifically allocated discretion should be left to the executive. This is mainly because the legislature cannot effectively contemplate all scenarios, fact situations or agencies as well as individuals who will execute these laws and policies. He further argued that if the Legislature was left with the role of execution of laws, there would be both efficiency and rule of law problem. An efficient problem in the sense that the execution of laws requires perpetual execution to ensure that there is a faithful execution, yet legislature can barely afford that. There would also be a rule of law problem because where the legislature is charged with the making and execution of laws, legislators would be tempted to suit the making and execution of laws to their own advantage.9 Discretion which Locke argues should be the province of the executive presents numerous problems to constitutional process and the machinery of government. Some constitutional lawyers argue that discretion when attended by monopoly of powers in the absence of accountability, leads to abuse of power and corruption. Some constitutional scholars argue that discretion should be vested in the judiciary rather than in the executive partly because the judicial branch has better training on applying (or adjusting) standard laws and procedures to different or varying fact situations. Others argue that the executive and administrative agencies should enjoy greater discretion mainly because of the varied issues they have to address on a daily basis yet laws and regulations are rarely specific.10 One of the major arguments I am currently researching is that the recent constitutional and administrative law focuses on controlling administration; political scientists (unlike most lawyers) seek to empower administration.11 The myth that executive - especially presidential - powers can easily be shared by Parliament or the judiciary without a constitutional provision falls flat (is unsustainable). This is because of the essential differences among the other organs as indicated above. 8Jackton B. Ojwang (1990) Constitutional Development in Kenya: Institutional Adaptation and Social Change, African Centre for Technology Studies (ACTS), Nairobi,at 81. 9 See John Locke, Two Treaties of Government 169 (Peter Laslett ed., Cambridge Univ. Press 1963) (1690) at 410. 10 Trained- exec on admin; Commissioner of Justice 11 Most admin law scholarship has been limited to judicial review ltd the perspective English Common Law eg Ridge v Baldwin [1964] AC 40 (Lord Reid…) ; or American Constitutional interpretation Marbury v. Madison 5 U.S. 137 (1803) (Chief Justice Marshall…) 3 7.2 Conceptualising the Executive in Kenya and Africa The Constitution of Kenya 2010 has reconceptualised the values, principles and objectives of executive power and functions. Article 129 is clear on the core principles undergirding executive powers12 and functions. It states: “(1) Executive authority derives from the people of Kenya and shall be exercised in accordance with this Constitution. (2) Executive authority shall be exercised in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit.” The Executive is part of the machinery of Government. It emphasizes the operational and also the conceptual or theoretical aspects of governance. That machinery includes the Executive, Parliament and county assemblies and the Judicature (Judiciary and judicial tribunals).
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