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.
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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…)
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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). The foregoing represents the traditional tripartite or triangular separation or division of powers and functions in the Western conceptualization, organization and operationalization of government.
Some of the core principles include: co-equal mandates, powers and functions; that the organs are equally important; checks and balances as well as separation of powers.
The relationship among the organs of Government, inter se in Kenya has changed historically. There are seven main phases. First, the pre-independence days (up to 1963). Second, independence days (1964) and post-independence days (1964-1978. Third, the de facto single party era, 1979-1982. Fourth, the de jure single party Moi era, 1982-1992.13 Fifth, the multiparty Moi era, 1991-2002. Sixth, the pre-coalition Kibaki era, 2002-2007,14 the Grand Coalition Kibaki era 2008-2010.15 Seventh, the Kibaki-Kenyatta era 2010-2019). Significantly, Kenya has been debating the implementation of the Constitution of Kenya 2010 and the next steps after the 2013 transitional elections;16 the 2017 electoral crisis; the 2018/19 rapprochement or handshake, governance and constitutional amendment, and the Kenyatta succession debate.
12 Powers, functions, competence, competeincies, role, responsibility, jurisdiction, authority, duty, obligation, authority, mandate..See Chapter 1 CODRALKA 1 and Glossary/Annex to CODRALKA 1. See also Chapter 3 on Values and Principles of Governance… 13 Dominance of KANU as a single party state.... 14 Dominance based on number of seats or dominance based on the control of executive machinery of the state (especially coercive finance and security even when they were a minority). cf KANU, DP (under NARC), PNU, TNA, Jubilee ANC in South Africa; PDP and APC in Nigeria; ZANU-PF (Zimbabwe); CCM (Tanzania); and NRM (Uganda). Cf the anti-hegemonic or counter hegemonic parties and political movements in Kenya and Africa: ODM (Kenya), Economic Freedom Fighters (EFF) (South Africa), Democratic Alliance (South Africa), Forum for Democratic Change (FDC) (Uganda), People Power (led by Bobi Wine, Uganda), Movement For Democratic Change (MDC), Zimbabwe, among others. 15 “post-civil war reconstruction” or amendments; semi-presidency in 2008-13; See Chapter 4 of CODRALKA 2 revised from .Ben Sihanya (2011) “The Presidency and Public Authority in Kenya’s new Constitutional Order,” SID Constitutional Working Paper Series No. 2 9-10. 16 cf questions of liberalization; of style….
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The following are some models:
E E 1P----J-----E17 2) 318
P
P J J
Nwabueze further suggests the following model:19
E
P
J
The Executive is often studied in relation or in contradistinction to Parliament and the Judiciary.20 Parliament is tasked with the making of laws,21 regulating public administration22 as well as criticism of the process of administration. Parliament also considers and approves the budget. And in the post 1990 dispensation, Parliament (as National Assembly) is playing a role in approving some appointments to be made by the Executive, like the US Senate.23 The Executive makes policy although Parliament debates and passes some of the development plans, sessional papers,24 motions, etc.
The Judiciary has the role of interpreting the law.25 The Executive executes the law. It also enacts and implements existing policy.26
Kenya has had a parliamentary executive since 1963,27 that is, a Cabinet Government and is governed under the doctrine of collective responsibility28 of the Government29 i.e. the executive
17 1963, 2010, post 2017 proposed amendments? Cf Michael Chege (2019) “The case for Parliamentary system,” Standard, Nairobi, at 12. See also Chapter 6 of CODRALKA 1 (Legislative powers and processes in Kenya and Africa….. 18 1991, 2008 19 Benjamin Obi Nwabueze (1974) Presidentialism in Commonwealth Africa, St. Martin’s Press, New York, Chap IX, at 255-294, “Surbodination of the Legislature.”…. 20 cf JSC,CJ, Judges, magistrates….. 21 This is the legislative function with Parliament as the legislature. To outline and cross constitutional functions of the legislature (NA, Senate, County Assembly (devolved legislative assemblies) in Kenya, Nigeria and South Africa. 22 This includes checking maladministration. 23 Cf. Art. 152 of the Constitution which requires that the Cabinet Secretaries nominated by the President are approved by the National Assembly. 24 Not all policy papers are tabled in Parliament….. 25 See Chapter 10 of the Constitution of Kenya; Chapter 4 CODRALKA 2....See also chapter 2 CODRALKA 1. 26 See Ben Sihanya and Winnie Molonko (due 2019) “Harmonizing Policy and Legislative Drafting in Kenya,” working paper. ….
5 is collectively responsible to the people through the cabinet in Parliament.30 The Constitution of Kenya 2010 has sought to change this with the inception of a presidential executive (Arts. 131- 155 on presidency, cabinet). Article 152(3) states that a Cabinet Secretary shall not be a Member of Parliament.31
In this context, J.B. Ojwang’ records that, “Montesquieu in 1748 described executive power as that by which the prince or magistrate (ruler) makes peace or war, sends or receives ambassadors, keeps the peace and prevents invasions.” These are efficient and ceremonial powers or functions.32
Executive power therefore extends to national defence, the vindication of state sovereignty, foreign policy and foreign affairs including diplomacy and international relations, execution of the law, maintenance of public order, management of state property, foreign policy, military operations, as well as provision of services like education, transport, public health etc.
7.3 Sources of Executive Powers and Functions in Kenya and Africa33 The constitutional, legislative, and administrative architecture of the Executive in Kenya is to be found in the Constitution, Statutes; Rules and regulatory case law; and practice or tradition:
First, constitutional sources of executive power. These include the Constitution 2010; 2008;34 1969 and 1963.
Second, statute with constitutional authority: County Government Act, 2012, the National Government Co-ordination Act, 2013, National Accord and Reconciliation Act, 2008 (expired
27 Westminster: 1. Home Model. 2. Export Model. 3. Historical Model. 4. Contemporary Model. 5 Varied Export (Hybrid?) Model: -Kenyan Model (Governor General & PM) Kenyan Varied Model – 2008-13; Bomas? Post 2010 and post 2018 or Building Bridges Initiative (BBI) handshake constitutional amendment debates... -Nigerian Model (President & PM); Zambia (President), SA…President elected by legislatures (dominated party?) cf French: P and PMs….cf DR Congo at independence: P and PM were almost equally powerful and would disappoint each other….. See Benjamin Obi Nwabueze (1974) Presidentialism in Commonwealth Africa, St. Martin’s Press, New York, op. cit; Chapt III, 39, “African Adaptations of Parliamentary to Presidential Government,” at 39…. 28 Cf individual responsibility. 29 Recall discussions: The American system embodies an executive presidency where (President and Cabinet are not members of Senate or the House of Representatives. The Kenyan system started (in 1963/1964) as a parliamentary executive system in which (the PM was an elected MP, Leader of Government in the House? and answerable to and in Parliament) the cabinet is recruited from MPs. Since 1964, the Kenyan presidency has moved towards executive presidency. 30 On the definition and various components of collective responsibility see Y.P. Ghai and J.P.W.B. McAuslan (1970, 2001) Public Law and Political Change in Kenya, OUP, Nairobi, at 237 ff. 31 cf elected ministerial representatives; US-the VP is ceremonial and dignified eg President of senate pro tempore (temporary) cf Cheney v. Other VPs. 32 Yash Pal Ghai (2015) “Separation of Powers: A la Montesquieu or the 2010 Constitution?,” The Star, Nairobi, 7/2/2015, at http://www.the-star.co.ke/news/separation-powers-la-montesquieu-or-2010-constitution (accessed 11/02/15). 33 To create sections on sources of Legislative, Executive, Judicial, Legislative Powers and Functions in Kenya and Africa..in the relevant Chapters of this CODRALKA 1…. in Regulatory, Administrative or Implementation, Policy Making 34 s.3, s. 15A, NARA; PM, DPM.
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(not repealed), but still relevant especially in the post 2010 and BBI constitutional reform debate…..
Third, statutes: Public Service Commission Act, 2012 (Service Commissions Act, Cap. 185 repealed);35 National Government and Coordination Act, 2013; Assumption of the Office of the President Act, 2012 (as amended); Numerous other statutes (almost every statute has provisions on executive power, functions, structure operations etc)36….
Fourth, presidential decisions on structure of government (“Executive Order.”): Executive Orders of 2013; 2016; 2018; 2019 on the Organization of Government of Kenya; Executive Order 2014 on county commissioners etc.
Presidential Circular No. 1/2008 on the Organization of the Government of the Republic of Kenya; cf Presidential Circular No. 1 of 2013; 2016; 2018; 2019 not clear in many positions….
Fifth, the Human Resource Policies and Procedures Manual for the Public Service, May, May 201637 Cabinet Office Handbook on Governing Responsibility in Kenya (2005);38 Civil Service Code of Regulations (2006);
Sixth, Cabinet Secretary (Cf. ministerial) circulars; circulars from CAS? PSs…39
Seventh, what of the presidential and ministerial “roadside” directives, orders, instructions or declarations?40 verbal: “President has directed….” “Orders from above.” These are back in spite of Constitution, 2010; Kenyatta I FPE; “Hanging Act,”41 Moi (school milk), 8-4-4, Saitoti chukua; Kibaki (political) parties are not there; FPE...): Kenyatta 2: Laptops, ipad, tablet, computer lab…., 100m Hustler’s jet; pay 3B? Anglo leasing….10000 Kiganjo recruits….; currency with Kenyatta portrait.
Eighth, Charisma, tradition and legal rational sources (law…, bureaucracy…)….42 These have been debated in Kenya and Africa as source of public power, from the perspective of the debate on legitimacy (Weber), validity (Kelsen), coercion (Marx) ….Ninth, what is charisma generally
35 Public service includes TSC, JSC. PSC….. 36 Constitutional implications in Kenya: Cf. Nwabueze: at independence the Nigerian Constitution provided for the power of the President. The duties were silent. The President was Commander-in-Chief but statute later gave the Prime Minister powers of the armed forces. 37 This policy doc by the Public Service Commission seeks to implement the Constitution, PSC Act, and relevant laws. It revises and supersedes the Civil Service Code of Regulations….It is a very progressive policy, regulatory and administrative document. The problem is implementation…. 38 Not changed in 2008? 2010? 2013? Only changed in 2016 in terms of policy or text, but practice is still largely pre-2010. 39 Role of PSC, Cabinet Secretaries; circular. 40 Cf. convention; CL prescription; practice; Kenyatta, Moi, Kibaki, Milk & 8-4-4; No Political order (NARC); Captors, VAT…. 41 President K1 appealing to the people directly and bullying parliament (NA) to enact death penalty...which the media called “Hanging Act,” See David Gachuki, Nairobi Law Monthly.... 42 cf K1 marrying into notable family among the Kikuyu according to Githu Muigai (2004) “Jomo Kenyatta & the Rise of the Ethno-Nationalist State in Kenya,” in Bruce Berman, Dickson Eytoh& Will Kymlicka (eds) Ethnicity & Democracy in Africa, James Currey, Oxford, United Kingdom.
7 under Weberian political and legal sociology? How has charisma been claimed for Hitler, Amin, Kenyatta I, Moi,43 Kibaki, Kenyatta 2? Apprentice to a Maasai magician? Role in independence struggle? Physique? Eyes? Voice? Fluency in Kikuyu,44 Kiswahili, English….
Tenth, what is tradition? Custom? Convention? Practice? Kenyan common law….What is its significance in constitutional democracy of executive or presidential power? Succession to monarchy and exercise of executive power in England follows lineage and convention...(convention being complemented by statute). Current succession line: Elizabeth II, Charles William….pregnancy in the monarchy is a constitutional issue, and (inter) national news… Claims to tradition in Kenya by Kenyatta I, Moi (as loyal VP for 12 years; Divine will on appointing Kenyatta, and that Moi should succeed him now that he was dead; Fuata Nyayo, , Kibaki (as VP…); Kenyatta as Kamwana, the Prince in media and public discourse.
Eleventh, constitutional drafts are equally important especially those that have been the basis of reforms such as proposed Constitution of Kenya 2010 (various drafts) cf. the Bomas Draft 2004. Eleventh, comparative and historical research on executive especially presidential power John Locke, Abraham Lincoln, Teddy Roosevelt, Richard Nixon, Trump, eg border wall:45 Lockeian - Nixon and Lincoln quoted Locke when they exercised a wider scope of power than constitutionally envisioned.46
Kenyan, executive power at the National and County Government levels is provided for under Articles 176, 179, 180, 183, of the Constitution, Part V of the County Governments Act, 2012, the National Government Coordination Act (sec 7), the Inter-Governmental Relations Act (sec 24).
Chapter 9 of the Constitution of Kenya 2010 states the rules regarding principles of the National Executive. Article 129 provides that “the Executive power derives from the People of Kenya and shall be exercised in accordance with the Constitution.” The Executive authority “shall be exercised in a manner compatible with principles of service to the people of Kenya, and for their well-being and benefit.”
In the transition phase, some supporters of President Kibaki cited the 1969 as the basis of his appointment of county commissioners. Justice Mumbi Ngugi of the High Court declared the appointments unconstitutional. However, this decision was overturned by the Court of Appeal.47 The County Commissioners’ powers have since been increased to include implementing
43 Eg inspecting guard of honour… 44 See Lonsdale… 45 Trump reads presidential power to .....And that excludes declaring a state of emergency. 46 Arthur M. Schlesinger (1973, 2004) Imperial Presidency, Houghton Mifflin Publishers, USA; Benjamin Obi Nwabueze (1974) Presidentialism in Commonwealth Africa, St. Martin’s Press, New York.; H.W.O. Okoth-Ogendo (1991) “Constitutions without constitutionalism: reflections on an African political paradox,” in Issa Shivji (ed) (1991) State and Constitutionalism: An African Debate on Democracy, Southern Africa Political Economy Series (SAPES) Trust, Harare, 3-26 (also in Douglas Greenberg, et al. q.v.; Jackson & Tushnet, q.v.); 47 Minister For Internal Security and Provincial Administration v. Centre For Rights Education & Awareness (Creaw) & 8 Others [2013] eKLR.
8 programmes in security, road management etc.48 This has caused a row between the county government and the office of the governor as their roles and powers seem to overlap.
Regional County Commissioners have since been appointed to chair all security meetings and report directly to the Interior Cabinet Secretary. Regional commissioners will be in charge of a cluster of counties, in the same way provincial commissioners were in charge of provinces. Below them will be county commissioners, who will be in charge of counties just like the district commissioners of old.49 This is counter-constitutional in the light of section 16 of the Sixth Schedule to the Constitution, among other provisions on devolved or county government, security, the remit of presidential power, etc.50
Chapter II of the 1969 Constitution outlined the structure of the Executive. Sec 23(1) of the former Constitution provides:
“The executive authority of the Government of Kenya shall vest in the President and, subject to this Constitution may be exercised by him either directly or through officers subordinate to him.”51
The “Executive Power Clause” is common in constitutions of presidential systems of government. For example, Article II section 1 of the US Constitution provides that “The executive power shall be vested in a President of the United States of America.” Similarly, Article 85(1) of the Constitution of the Republic of South Africa vets executive power in the President, to be exercised together with the members of the Cabinet.
Some of the executive powers are enumerated and regulated or “controlled” by Parliament, e.g. s. 23(2) of the 1969 Constitution; cf ss. 107. Parliament can and could remove some powers from the President and confer them on other officers or bodies.
With the adoption of the Constitution of Kenya 2010, some dynamics of the exercise of executive power to changed.52
48 Rawlings Otieno and Felix Olick,“President Uhuru Kenyatta gives more powers to county commissioners.” (2014) The Standard Online, at http://www.standardmedia.co.ke/article/2000121313/uhuru-gives-more-powers-to- county-commissioners/ (accessed 13/3/2019). 49 Peter Leftie (2015) “Regional and county commissioners get new powers on security,” Daily Nation, Nairobi at http://www.nation.co.ke/news/Regional-and-county-commissioners/-/1056/2865966/-/224ehs/-/index.html (accessed on 22/6/2016). 50 See Chapter….of CODRALKA 2, initially Ben Sihanya (2011) “The Presidency and Public Authority in Kenya’s new Constitutional Order,” SID Constitutional Working Paper Series No. 2, 9-10. David Musila (2019) Seasons of Hope: Memoir of David Musila, Maneesh Media, Nairobi. (ex Kitui Senator; ex Deputy Speaker). 51 See the political rationale in David Goldsworthy (1982) Tom Mboya: The man Kenya wanted to forget;” Jeremy Murray Brown, Kenyatta; Andrew Morton,(…) Moi: The Making of an African Statesman; Raila Odinga (2012) The Flame of Freedom...; Badejo, Raila Odinga: An Enigma in Kenyan Politics..., Moody Awori, Riding a Tiger; Kalonzo Musyoka, Against all Odds...David Musila (2019) Seasons of Hope: Memoir of David Musila, 52 Head of PS? Not in the Constitution, 2010;competitive, transparent re…..? double retiree? Special skills? Youth unemployment? role of PSC; role of PS; to secure authority from President? role of DP in this? See below on P, DP, Secretary General, Secretary to the Cabinet, Principal Secretary etc
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7.4 Powers of National Government53 in Kenya and Africa There are at least 35 powers of the National Government under the Fourth Schedule to the Constitution of Kenya 2010. In Chapter 1, we discussed these as the powers and functions of Government (generally). In Chapter 6, we discussed these as part of the legislative powers of the National Government and County Government. In this Chapter 7 they are listed under 35 clusters below and are (t obe) discussed from the perspective of executive policy making and adminsitrative powers and functions of the National Government and 47 County Governments.54 1. Foreign affairs, foreign policy and international trade. 2. The use of international waters and water resources. 3. Immigration and citizenship. 4. The relationship between religion and state. 5. Language policy and the promotion of official and local languages. 6. National defence and the use of the national defence services. 7. Police services, including—
(a) the setting of standards of recruitment, training of police and use of police services; (b) criminal law; and (c) correctional services.
8. Courts. 9. National economic policy and planning. 10. Monetary policy, currency, banking (including central banking), the incorporation and regulation of banking, insurance and financial corporations. 11. National statistics and data on population, the economy and society generally. 12. Intellectual property rights. 13. Labour standards. 14. Consumer protection, including standards for social security and professional pension plans. 15. Education policy, standards, curricula, examinations and the granting of university charters. 16. Universities, tertiary educational institutions and other institutions of research and higher learning and primary schools , special education, secondary schools and special education institutions. 17. Promotion of sports and sports education. 18. Transport and communications, including, in particular--
(a) road traffic; (b) the construction and operation of national trunk roads; (c) standards for the construction and maintenance of other roads by counties; (d) railways; (e) pipelines;
53 Cf Matrix on Decentralisation.. See also chapters in….. 54 Are the powers and functions exhaustive? Cf the listed congressional powers under Art 1(8) of the US Constitution discussed in Chapter 6 (Legislative powers and processes…)….
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(f) marine navigation; (g) civil aviation; (h) space travel; (i) postal services; (j) telecommunications; and (k) radio and television broadcasting.
19. National public works. 20. Housing policy. 21. General principles of land planning and the co-ordination of planning by the counties. 22. Protection of the environment and natural resources with a view to establishing a durable and sustainable system of development, including, in particular--
(a) fishing, hunting and gathering; (b) protection of animals and wildlife; (c) water protection, securing sufficient residual water, hydraulic engineering and the safety of dams; and (d) energy policy.
23. National referral health facilities. 24. Disaster management. 25. Ancient and historical monuments of national importance. 26. National elections. 28. Health policy. 29. Agricultural policy. 30. Veterinary policy. 31. Energy policy including electricity and gas reticulation and energy regulation. 32. Capacity building and technical assistance to the counties. 33. Public investment. 34. National betting, casinos and other forms of gambling. 35. Tourism policy and development.
7.1.3 Powers of Sub-National or County Government in Kenya and Africa The powers of the County Government under the Fourth Schedule are 14: 1. Agriculture, including—
(a) crop and animal husbandry; (b) livestock sale yards; (c) county abattoirs; (d) plant and animal disease control; and (e) fisheries.
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2. County health services, including, in particular—
(a) county health facilities and pharmacies; (b) ambulance services; (c) promotion of primary health care; (d) licensing and control of undertakings that sell food to the public; (e) veterinary services (excluding regulation of the profession); (f) cemeteries, funeral parlours and crematoria; and (g) refuse removal, refuse dumps and solid waste disposal.
3. Control of air pollution, noise pollution, other public nuisances and outdoor advertising. 4. Cultural activities, public entertainment and public amenities, including--
(a) betting, casinos and other forms of gambling; (b) racing; (c) liquor licensing; (d) cinemas; (e) video shows and hiring; (f) libraries; (g) museums; (h) sports and cultural activities and facilities; and (i) county parks, beaches and recreation facilities.
5. County transport, including--
(a) county roads; (b) street lighting; (c) traffic and parking; (d) public road transport; and (e) ferries and harbours, excluding the regulation of international and national shipping and matters related thereto.
6. Animal control and welfare, including--
(a) licensing of dogs; and (b) facilities for the accommodation, care and burial of animals.
7. Trade development and regulation, including--
(a) markets; (b) trade licences (excluding regulation of professions); (c) fair trading practices; (d) local tourism; and (e) cooperative societies.
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8. County planning and development, including—
(a) statistics; (b) land survey and mapping; (c) boundaries and fencing; (d) housing; and (e) electricity and gas reticulation and energy regulation.
9. Pre-primary education, village polytechnics, homecraft centres and childcare facilities. 10. Implementation of specific national government policies on natural resources and environmental conservation, including--
(a) soil and water conservation; and (b) forestry.
11. County public works and services, including--
(a) storm water management systems in built-up areas; and (b) water and sanitation services.
12. Fire fighting services and disaster management. 13. Control of drugs and pornography. 14. Ensuring and coordinating the participation of communities and locations in governance at the local level and assisting communities and locations to develop the administrative capacity for the effective exercise of the functions and powers and participation in governance at the local level. The Constitution of Kenya 2010 states that both the National Government and County Governments must consult and co-operate with each other. Under Article 6(2), the Governments at the national and county levels are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation.
Article 191 of the Constitution has provisions that apply to conflicts between national and county legislation in respect of matters falling within the concurrent jurisdiction of both levels of government. It provides in Article 191 (2) that national legislation prevails over county legislation if:
“(a) the national legislation applies uniformly throughout Kenya and any of the conditions specified in clause (3) is satisfied; or
(b) the national legislation is aimed at preventing unreasonable action by a county that—
(i) is prejudicial to the economic, health or security interests of Kenya or another county; or
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(ii) impedes the implementation of national economic policy.”
Where there is a conflict of laws, two scenarios will apply: First, where the conflict concerns a matter that Counties are responsible for, for instance the functions of the county Government as listed in the Fourth Schedule, the County law will be binding. Second, if the national legislation sets the essential standards for the whole country, the national law will be binding and will override the County law.55
7.5 The Powers, Competencies, Functions, or Mandate of the Executive in Kenya and Africa What are the powers, competencies, functions or mandate of the Executive in Kenya and Africa?
Within the separation of powers thesis, the role of the executive is described as execution of the law. Arts 10,56 129,57 and 23258 and Chapter Six provides the broad framework of values and principles on the Executive and the President. Article 129 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.”
However, the exact role of the Executive is laid out in the Constitution and statutes and subsidiary legislation. Moreover, it is laid out in policy papers that the Executive uses to craft and implement various government policies and programs.
The main functions of the executive can be summarized as follows:59
1. National security; 2. Public administration; 3. Economic planning; 4. Service delivery; 5. Collection of taxes; 6. Public procurement and disposal; 7. Foreign relations and international cooperation: diplomacy, consular relations...
55 Angela Waki and WathingiraGituro “The new Constitution of Kenya: a general overview,” at http://www.coulsonharney.com/FileBrowser/ArticleDocuments/The%20New%20Constitution%20- %20Overview.pdf, (accessed 15/11/2019)…. 56 See also Chapter 3 & 4 of CODRALKA. 57 See also Chapter...of CODRALKA 2. 58 See also Chapters...of CODRALKA 2: CS, CAS, PS, Administrative Bureaucracy. 59 Degree of significance: is there a hierarchy? – Ministries v. Depts. v. Directorates v. Committees or sections; Sections v. functions; Cf. organization of government functions under: Constitution, statutes, standing orders e.g. committees; Cf. Shadow cabinet members historically tend to be those with expertise or interest in the relevant portfolio or matter. They are fewer than the actual cabinet.
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Fourth Schedule of the Constitution of Kenya, 2010 has a comprehensive list of functions for the two levels of Government.60 But it is not exhaustive. There are residual functions.61And some functions are transferable from the National Government (NG) to County Government (CG) and vice versa.
The Executive, acting under parliamentary legislation as oversight, is also responsible for executing the regulating legislation drafted by the parliamentary branch to guide the many sectors of the economy or Government, notably:
1. Security, include police, AP, CID, intelligence, , NIS, the military 2. human resources (labour force) 3. agricultural development, food security and food rights 4. transportation 5. energy provision 6. housing and construction- infrastructure development generally 7. education 8. environmental conservation and improvement 9. health services 10. promotion of research and science, technology and innovation 11. operation of parastatals and State Corporation, industries 12. commerce, trade or business in general (e.g. by enforcing minimum standards, and notably by issuing a currency) 13. Implementing devolved governance including facilitating county government.62
In developed countries, the role of the Executive or Government has been expanded to provision of other social programs, e.g. compulsory pension, social security, etc. The President of the Republic of South Africa, for instance, is mandated to call a national referendum in terms of an Act of Parliament.38
7.6 Contextualising the concepts and functions in the Executive in Kenya and Africa Is there a hierarchy of executive powers and functions? No and Yes. Some argue that Government (power) is about security (the sword) and (financial) resources (the purse). 7.6.1 National security National or public security is a right63 and a major function of the Executive and President. Being the most important duty needs human, financial, and technical reports.
One of the core functions of the Executive is to ensure internal and external security of the country. The Executive’s machinery for achieving this function includes the Defence Forces; the Police Service (NPS), and the National Intelligence Service (NIS). The NPS includes the
60 See Annex to CODRALKA 1. 61 Examples? See also Chapter 5 (conceptualizing devolution). 37 Consider the roles of the ethnic colonial counter devolution monarchy or Kiama, 2013-2019:Kamwana,, Kinyua, Kimemia, Waiguru, Kinuthia, Ndungu, Njoroge;, KRA, Waweru, (Njiraini). James Githii Mbivu…James Macharia, CS who controls about one third of the budget, Sicily Kariuki….their roles in Medical Equipment Scheme (MES)….an anti-devolution fraud worth billions of tax payers funds….. 38 Article 84(2)(g) of the Constitution of the Republic of South Africa. 63 Art 29 of the Constitution.
15 following offices: Kenya Police Service (KPS), including Directorate of Criminal Investigation (DCI),64 the General Service Unit (GSU); and the Administration Police (AP). Related agencies and offices include National Security Council (NSC), National Security Council Committee (NSCC), National Defence Council (NDC), the Independent Police Oversight Authority (IPOA). There is also the (quasi) or pseudo security National Youth Service (NYS), the Kenya Wildlife Service (KWS), and the Kenya Forest Service (KFS). The provincial administration has also been playing a role in security which is unconstitutional.65
7.6.2 Public administration.66 67 Public administration focuses on management or coordination of the following five: human, financial, technical (equipment), facilities and infrastructural resources.
The Government is responsible for formulation and implementation of government policies and programs. This is done through the public service or civil service. To that extent, the Government is the largest single employer in the economy. Government creates employment or offices, hires and fires staff through the President, Public Service Commission, Permanent Secretaries and other independent agencies. This function has evolved into a core service of Government – employment creation (e.g. Kazi Kwa Vijana programme).42 68 Significantly, fraud was also manifested in the following: National Youths Service (NYS), at least 791 million scandal; NYS 1, NYS 2, fraud; youth unpaid.69
There was also fraud in the Youth Fund70 and.Uwezo fund71….
64 Formerly Criminal Investigation Department (CID). 65 Cf definition under Art 238 of the Constitution; the repealed Preservation of Public Security Act, Cap 57; Security of: public in general; person, regime, or President and the ethnic whimsical elite. Cf. Debate on Westgate attack and hostage crisis: August, September, 2013; NIS (Gichangi) v. Special Branch (James Kanyotu…); Gichangi dilemma- perspectives of NIS role in propaganda infiltrating IEBC including tallying, delivery, transmission, and movement of presidential election and other results 2013…. See Chapter 21 CODRALKA 1 on security. See: Oscar Obongo (2013) “CORD and Jubilee MPs united in condemning Spy Chief Gichangi,” Standard on Sunday, Nairobi, 29/9/2013, News at, 20; Biketi Kikechi (2013) “Westgate attack clips Kimemia’s powers,” Sunday Standard, 29/9/13, Westgate Aftermath, at 2; Joe Ombuor (2013) “The man (Joseph Kinyua) Uhuru sees as safer pair of hands,” Standard on Sunday, 29/9/13, Westgate Aftermath, at 3; George Kegoro (2013) “Painful lessons from Westgate terror attack,” Sunday Nation, 29/9/13, Sunday Review, at 19.Cf the bombings and attacks in Nairobi, Garissa, Mandera and Mombasa recently. See debates on whether Kenya should withdraw from Somalia and the efficiency of the current Cabinet Secretary in charge of security…. 66 How is public administration defined? Management of infrastructure is done by initiation and coordination according to Nwabueze. It is also done through the county government. “Wait,” come tomorrow, etc...; compare the role and inefficiency of railway transport; KPTC; Rail; KPTC; Health; agriculture; energy; water. See alos Chapter….Regulating and Administering Constitutional Democracy in Kenya and Africa….. 67 Delay, wait, come tomorrow, rudeness, dis…….etc...; role and inefficiency of railway transport; KPTC; Rail; KPTC; Health; agriculture; energy; water. 68 See Chapter Fourteen of the Constitution of Kenya... 69 Ben Sihanya (2015) “Mandate, institution, militarisation, misuse, trade and of the National Youth Service in Kenya” (December 2015) in Advocate magazine, the Law Society of Kenya, 26-27. 70 Youth Enterprise Development Fund , a state corporation mandated to provide financial and business development support services to youth owned enterprises 71 The Uwezo Fund is a flagship programme for vision 2030 that was aimed at enabling women, youth and persons with disability access finances to promote businesses and enterprises at the constituency level.
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How has liberalization, privatization, and public-private partnerships (PPP) affected public administration and constitutional democracy in Kenya, Nigeria, South Africa, Tanzania and Uganda?
According to Sunday Nation, unowned document has been circulating and contains proposals to amend the National Police Service Act….The effect is that the police officers of whatever level will be subject to the command and deployment(?) of civil authority especially the National Government Administrative Officers including village elder, Assistant Chief, Chief, County Commissioner, Regional Commissioner..This will compromise the independent powers of the IG of police…72This is unconstitutional revival of provincial administration.73
7.6.3Service delivery in Kenya and Africa Government, through the Executive, is charged with the provision of certain vital or core services to the public. The rationale is that leaving the provision of such essential services to the private sector will lead to exploitation of the public, and compromise national security. These include provision of energy, water, health facilities,74 ensuring adequacy of food reserves. This is done through direct services by government departments, government agencies e.g. parastatals, and also private contractors. How have county governments performed in service delivery
7.6.4 Economic planning and development in Kenya and Africa75 Policy, planning, coordination function; must be scientific or evidence based and participatory76 The Executive is charged with the economic planning of the state, to ensure economic stability and cushion the public against harsh economic conditions occasioned by market forces.77 This is through fiscal78 and monetary policies crafted by, among other agencies, the Central Bank of Kenya (CBK),79 the National and Economic and Social Council (NESC),etc.80
7.6.5 Public Finance: Budgeting or annual supplementary estimates81 Priorities based on constitutional and Human Rights standards. Laptops v. student fees or loans and human resource in education….
72 See David Mwere (2019) “ New Bill Seeks to have Chiefs Command Police” Sunday Nation, Nairobi, 17/11/2019, at 5. The Bill’s source could not be authenticated. That is the same way a bill was originated on county commissioners having power over security when Kimemia was PS… 73 Contrary to section 17 of te Sixth Schedule. 74 Cf. serious challenges regarding health, including free maternity services under the Jubilee manifesto, policy, Universal Health Care (UHC) as part of Kenyatta’s “Big 4” legacy projects…..; Beyond Zero? MAfya... 75 To create Chapter on Economy, Production, Distribution, Consumption, Public Finance….in Knya and Africa 76 5 year development plans; Sessional papers: No. 1 of 1965 (Kibaki-Michuki) l; No. 1 of 1986 (Ouko); ERS of 2003; Vision 2030; sessional papers v. development plans; Sessional Paper No. 10 of 1965 and its legacy: from high potential to high impact... Planning; projections; and coordination of key players: Government. 77 See for instance, the run-away inflation, skyrocketing food prices, weakening of the Kenyan shilling against the U.S dollar and the exorbitant bank interest rates. 78 79 For instance, there is the Monetary Policy Committee, an arm in the Central Bank chaired by the Governor of the CBK that is responsible for setting interest rates for commercial banks to guard against inflation. 80 +Ministry of Planning. 81 Cf human rights and social justice budgeting....
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The executive is responsible for budgeting on public finance.82 Estimates of revenue and expenditure are traditionally submitted to Parliament through the annual Budget Statement and the accompanying Finance Bill.83 The supplementary estimates debate 2019: at first, Ag Finance CS Mr Ukur Yattani slashed “all” estimates by 50%. CS can’t slash at all; even the National Assembly and Senate cannot slash the budget without public participation of the 3 arms, and commissions including JSC. LSK filed a suit to challenge the CS’s decision.84 Then the CS took the matter to NA…..
7.6.6 Public finance: Revenue85 The executive is charged with raising and spending public money to generate appropriate vision, mission, objectives, strategies, programmes and activities to ensure optimisation of revenue and expenditure programmes. Government revenue is generated from three main sources:86
First, taxation:87 income tax;88 custom;89 excise duty,90 VAT91…) VAT debate 2013, 2018……VAT is not a progressive tax. All consumers pay the same rate, whether poor, unemployed or plutocrat….
Second, internal loans. These loans are transacted mainly through Treasury Bills (TBs) and Government Bonds. There are merits and demerits. Merits include raising much needed resources to meet budget deficit, and governance and development. Moreover, Sovereign or Government debts are safer than institutional or personal loans. The main demerits include the
82 EAC on harmonized “budget” day…. 83 In June 2012, Njeru Githae, Minister for Finance, gave his budget speech which raised eyebrows as the budget had risen from 1.15 trillion to 4.45 trillion;cf 2013/14 budget debates- how much and proportion to counties; delayed disbursement to counties; laptops-any participation in allocation? litigation withdrawn? not a secret process. Cf. President Uhuru Kenyatta’s move to pay the Anglo Leasing firm Ksh 4.1 Billion. Is this a violation of Article 201 of the Constitution (which sets principles that must guide all aspects of public finance)? Moreover, Parliament did not approve the payments. 84 See LSK V….. 85 Chapter 12 Constitution, 2010. 86 Cf. Constitution and Vision 2030. 87 Ushuru; Treasury Bills and Government bonds-Forget and sold in Kenya? Floating of an international sovereign bond worth 176 billion in 2015- (Eurobond). 88 Income tax is a direct tax charged upon all the income of a person, whether resident or non-resident, which accrued in or was derived from Kenya. There are at least three types of income tax: first, Pay as You Earn (PAYE), is about 30% . It covers basic pay and even allowances. Second, corporate tax is This is a form of Income Tax that is levied on corporate bodies such as Limited companies, Trusts, and Co ? operatives, on their annual income. Third, withholding tax is is a tax that is deductible from certain classes of income at the point of making a payment, to non- employees. WHT is deducted at source from the following sources of income: Interest, Dividends, Royalties Management or professional fees (including consultancy, agency or contractual fees), Commissions, Pensions, Rent received by non-residents, Other payments specified. 89 This is a duty of excise imposed on; goods manufactured in Kenya, or; imported into Kenya and specified in the 1st schedule to Excise Duty Act, 2015. See https://www.kra.go.ke/en/business/societies/paying-taxes/societies- types-of-taxes (accessed 13/8/2019). 90 Value Added Tax is charged on supply of taxable goods or services made or provided in Kenya and on importation of taxable goods or services into Kenya. See https://www.kra.go.ke/en/business/societies/paying- taxes/societies-types-of-taxes (accessed 13/8/2019). 91 VAT Act used to be Sales Tax Act until 1990…….
18 fact that Government borrowing leads to crowding out commercial and individual lending. It also leads to higher interest rates.92
Third, grants or aid. Some donors or development partners have historically extended to Kenya grants or aid. Some is unconditional. Others are tied to conditionalities, for instance under SAPs, in the 1980S and 1990s; or tied to human rights and democratization; or to anti-corruption measures; or to transferring to Kenya some technologies, or Kenya protecting technologies, “onnovations,” or intellectual property which is already in the public dormain under economic partnership agreements.93 Fourth, external loans…The GOK borrows from external sources. These include at concessionary and commercial rates. For instances, Floating of an international sovereign bond worth 176 billion in 2015- (Eurobond); Eurobond of 215B, 2019..….94
Fifth, grants from development partners or donors….Remarkably, the World Bank, IMF, US, UK and Scandinavian states have historically extended some grants to Kenya. China mainly engages Kenya on loans and related “deals”….95
Expenditure of such funds as collected should be in order of priority, from basic needs to secondary needs of the citizens. There was debate 2005 budget estimates on Security, NYS vis-à-vis Education and Health; 2016 budget vis-à-vis Kenya’s debt which was the highest in the region, at KES3.2 trillion, at the beginning of the 2016/2017 financial year. At independence, national debt was [….].then KES[……] in 2002, then KES 1.7 Trillion in 2013, then KES 5.2 trillion in 2019.
Cf budget for 2018/2019; division between national and county governments; allocation to legislature, executive, judiciary, allocation to commissions and independent offices; allocation to security (NPS, NIS, KDF); allocation to presidency . cf State House, State Houses and State lodges.
7.6.7Allocation of financial resources96 Government financial resources from various sources need to be allocated on the basis of a proper balance between efficiency and equity. The role of the Government or public sector is also to create an enabling environment to facilitate savings, investment production and service delivery by the private sector, through regional, gender, and ethnic allocation of financial and other resources e.g. infrastructure, parastatals, employment.
92 …. 93 See Ben Sihanya (2016) Intellectual Property and Innovation Law in Kenya and Africa: Transferring Technology for Sustainable Development, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya. 94 95 Cf SGR loan, among other deals. 96 -Ethnic -gender –sectoral; -MOF- -exec min: Cf. PS to the Treasury Act… In August 2019, CRA submitted to Building Bridges Initiative (BBI) that the should be amended to that national treasury be an agency of National Government and County Government. -KRA -Counties to receive at least 15% of budget; 2013 debate on budget
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7.6.8 Equalization Fund.97 What other funds are operated by the National Government? By the County Governments? Consider the debate on Division of Revenue Bill in 2012/2013, 2013/2014, and 2018/19….98
Under the unitary Government, there were inequitable allocation of financial resources. For instance, under Kibaki, Martha Karua’s Water Ministry allocated KES….to Othaya…….and only KES…...to the arid and semi-arid Turkana, Kitui, Kilifi and Kajiado, respectively.99 When asked about the inequity she reportedly responded: Isn’t Othaya in Kenya? It is difficult to argue with officials and people who have internalized inequity and exclusion.
Relatedly, Finance Minister Amos Kimunya allocated Kshs 400m(?) to subsidize coffee farmers especially in Kikuyuland. When the MPs supporting the farmers in the sugarcane belt of Western, Nyanza and Coast (Ramisi….) sought support, and opposed the cess and related expenses and penalties, Mr Kimunya reportedly responded that if the farmers had problems with sugar cane, they should try guavas….100 In the 2017-2018 period maize farmers in Uasin Gishu, Trans-Nzoia, Bungoma…were not paid at all or for long and low rates….DP William Ruto and allies were paid…..Senate Majority Leader Kipchumba Murkoment “advised” complaining farmers to “try avocado”….And in spite of oversupply, Kenyatta Government through CS Mwangi Kiunjuri claimed there was maize shortage and need to import….Raila and others opposed this plan to import maize.101
Cf. President Uhuru Kenyatta rewarding Meru County with roads, title deeds.102 At the same time giving KES 1.1 billion to clear all arrears owed to cane farmers in Nyanza region.103 The money is in fact a loan which the cane farmers would pay annually for the next five years. 3B to Mumias 2017/18? What for? How was it spent? Maize farmers especially in Trans Nzoia and Uasin Gishu 2017-19?
There was debate on the allocation to the judiciary in 2018 etc… The judiciary had sought a budget of KES 31.2 billion but the Treasury’s Budgetary Policy Statement capped it at KES 17.3
97 The Equalization Fund that is set to bridge the inequalities problem by allocating more funds to counties and regions that are underdeveloped is yet to become functional because of the absence of a legal framework to inform the modalities of sharing of the funds. The Constitutional Amendments Bill is currently in Parliament. 98 See Annex. 99Nyeri, Kitui, Turkana.... 100 Tax, cigarettes, alcohol, airtime; -Mileage, cigarettes, alcohol and airtime were the normal victims of taxation; but now even essentials like bread may be subject to tax increments. The VAT Act 2013 has initially imposed a 16% VAT charge on basic commodities which were previously not subject to VAT at all. Some of the clauses setting the provision was however removed after public clamour. -Problem persists. Cf. MP Ababu Namwamba’s Bill to reverse some provisions of VAT Act 2013 to cushion consumers.... 101 …… 102 Standard Digital 1/5/2015, at http://www.standardmedia.co.ke/article/2000153254/president-uhuru- kenyatta-rewards-vote-rich-meru-county-with-roads-title-deeds accessed on 29/2/2016. 103 Moses Odhiambo (2015), “Leaders to President Kenyatta: You are welcome to tour Nyanza,” The Standard, Nairobi at http://www.nation.co.ke/counties/kisumu/Uhuru-Kenyatta-Nyanza-Leaders-Visit/-/1954182/2769436/- /jukmxc/-/index.html (accessed on June 22, 2016).
20 billion. The amount was subsequently reduced by Parliament through the Appropriation Act, to KES 14.5 billion. WB? 104
In 2019, Members of the National Assembly and Senators failed to agree on division of revenue proposals in the Division of Revenue Bill 2019. The Senate backed the counties’ call for more money (KES 327 billion), while the National Assembly backed the Treasury and national government (KES 316 billion.) On 7/8/2019, the Senate amended and passed the bill increasing allocation from KES 316 billion to KES 335 billion and as this writing, the Bill was yet to be debated by the National Assembly.105
7.6.9 Custody, withdrawal and expenditure of public finances This typology includes disbursement; no absolute discretion by the treasury or CBK, expenditure controls – according to the budget and procurement plan...How to avoid looting, wastage, over expenditure, budget overruns, limited absorption.....
Once money has been raised for the Government, it is important to keep it securely and used only for the purposes for which it is raised, as the law provides. Most of Government revenue is placed in the Consolidated Fund,106 from where it may not be withdrawn except on authority of Parliament. Cf. Equitable distribution to Counties; (at least 15%); Equalization Fund.
7.6.10 Fiscal and monetary policy under the Constitution The Constitution of Kenya 2010 and the Public Financial Management Act, among other statutes, establish principles for Kenya’s financial management system and hence, Kenya’s monetary policy. The substantive monetary policy for Kenya is formulated by the Central Bank of Kenya under Section 4B of the Central Bank of Kenya Act.107 Kenya’s financial crisis in the 2018/2019 period and before, including the debt crisis is mainly attributable to weak monetary policies, corruption, tribal favoritism and exclusion, and incompetence,.108
7.6.11 Public procurement and constitutional democracy in Kenya109 According to the Constitution, and the procurement laws.110 Article 227 (1)
104 Sam Kiplagat (2018) “Budget cuts will cripple Judiciary, warns Maraga,” Daily Nation, Nairobi, 25/7/2018, at https://www.nation.co.ke/news/Budget-cuts-will-cripple-Judiciary--warns-David-Maraga/1056-4679948- ingt01z/index.html (accessed 26/7/2018). 105Ibrahim Oruko (2019) “Senate passes revenue bill with Sh335 billion for counties,” Daily Nation, Nairobi, at https://www.nation.co.ke/news/Senate-passes-bill-Sh335bn-for-counties/1056-5227196-1mxc5q/index.html (accessed 13/8/2019). See discussion above and below on cutting the estimates by 50%, and “rationalizing” expected revenues in the July-Nov 2019 period. 106 Art 206 of the Constitution of Kenya 2010 107 See Kenya’s “Monetary Policy Statement,” published by the Central Bank of Kenya at https://www.centralbank.go.ke/uploads/monetary_policy_statements/677986979_41st%20MPS%20- %20December%202017.pdf (accessed 8/7/2019). 108 Mbui Wagacha (2019) “Right policy mix can help Kenya dig out of debt hole,” Business Daily, Nairobi, 4/6/2019, at https://www.businessdailyafrica.com/analysis/ideas/Right-policy-mix-can-help-Kenya-dig-out-of-debt- hole/4259414-5144896-2f4el3z/index.html (accessed 7/8/2019). 109 Public Procurement and Disposal Act 2005; Public Procurement Regulations 2006. PPAD 2015.. 110 Public Procurement and Disposal of Assets Act,…Public Finance Management Act…..
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Article 227(2) makes provision for important rules, values, principles of constitutional democracy thus: It states:
“(2) An Act of Parliament shall prescribe a framework within which policies relating to procurement and asset disposal shall be implemented and may provide for all or any of the following--
(a) categories of preference in the allocation of contracts; (b) the protection or advancement of persons, categories of persons or groups previously disadvantaged by unfair competition or discrimination; (c) sanctions against contractors that have not performed according to professionally regulated procedures, contractual agreements or legislation; and (d) sanctions against persons who have defaulted on their tax obligations, or have been guilty of corrupt practices or serious violations of fair employment laws and practices.”
The foregoing and related procurement rules, values and principles have been breached in numerous transactions. For instance, Kenyatta and Ruto’s Jubilee made a pre-election promise in 2012/13 that assuming power, they’d secure laptops to all Std 1 pupils in Kenya. the tablets, their ipads, now computer labs111
Remarkably, the verbal manifesto promise was not integrated into national policy through public participation and appropriate budgetary allocation…..In the event, the matter was litigated in Republic v. Independent Electoral and Boundaries Commission (IEBC.) Ex parte National Super Alliance (NASA) Kenya & 6 Others.112 Crucially, Dr David Ndii and many analysts argued that almost all Kenyatta and Ruto projects were initiated for specific allied tenderprenuers.
Public administration and provision of services to the public entails Government spending or public procurement for certain goods and services.113 In exercising this function, the Executive is expected to ensure optimal and efficient use of public finance. Public procurement and taxation are also used as tools for economic planning.114
County governments have a big role in public procurement.115 There are efforts in place to review and amend the Public Procurement and Disposal Act (2005) as to cater for emergencies and to provide for the Jubilee government’s promise that 30% of all Government tenders go to the youth.66
111 Wycliffe Muga (2013) “Uhuru will stand or fall on laptops,” The Star, August, 8, 201, at, http://www.m.the- star.co.ke/news/article-131254/uhuruto-will-stand-or-fall-laptops (accessed 30/9/2013); Public procurement done in advance?; IEBC; CRJ v. JSC… on procurement… 2013. Augustine Oduor (2015) “ 112 Republic v. Independent Electoral and Boundaries Commission (IEBC) Ex parte National Super Alliance (NASA) Kenya & 6 others [2017] eKLR…. 113 ERB... 114 Taxation of sanitary towels? -works 115 Article 175 of the Constitution provides that County Governments are to have reliable sources of revenue to enable them to govern and deliver services effectively. Article 203 (2) demands that the National Government allocates at least 15% of its revenue to be distributed equitably among county governments. Will this be adequate? How easy will it be for county governments to seek supplementary (external) sources of finance?
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Debate on procurement of medical equipment by National Government for County Governments.....
7.7 Structure of the Executive in Kenya and Africa116 Does structure also follow function in constitutional democracy? Who are part of the top executive? The rank and file of the executive or the administration? the executive? (i) President (ii) Deputy President (iii) Cabinet Secretaries (iv) A-G117 (v) Director of Public Prosecutions (vi) Chief Administrative Secretaries (vii) Principal Secretaries (viii) Secretary to the Cabinet (ix) Public service – includes civil service which consists of: technocrats, bureaucrats, boffins, mandarins, etc. (x) Inspecter General of Police ; Director of Criminal Investigations,
Remarkably, some of the Independent Commissions have since acted as part of the executive if not acting as if they are subordinate to the executive. Examples include TSC, SRC,118 and NPSC. Some of the Independent Commissions and Offices have ignored or defied their Constitutional objectives which include the promotion of constitutionalism and the protection of the sovereignty of the people.119
The other operational machinery of government includes:120 the civil service proper the provincial administration (the security machinery)- to be reconstructed under the Constitution 2010 the political and administration wing121 of the local councils e.g. mayors, council chairs etc have executive or administrative authority; replaced by the Governor, County Executive;122 County Assembly 123- under the 2010 Constitution, County Government Act, 2012, The Transition to Devolved Government Act, 2012 after the 2013 elections
116 To indicate equivalent offices in Nigeria, South Africa, Uganda and Tanzania. 117 Structure; basis of self-defence. 118 On salaries and remuneration of MPs, teachers, lecturers and other university workers. 119 See Ben Sihanya (due 2019) “Constitutional Commissions and Independent Offices in Kenya: Experiences, Challenges and Opportunities,” Chapter 13 in Ben Sihanya (due 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, Innovative Lawyering & Sihanya Mentoring, Nairobi & Siaya, Chapter 13. … 120 Public service v. Civil service cf state officer v. public officer as defined in the Leadership and Integrity Act 2012 and Article 260 of the constitution. (class 4A). 121 Councillors... 122 To create sections on County Executive…cf Mombasa Governor A1i Hassan Joho dismissed CECs…..to reconstitute (November 2019)….Nairobi Governor Mike Sonko has ruled without a Deputy Governor from …..Is there a proposed law that a Governor cannot rule without a Deputy and CECs? Nov 2019?
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the local government bureaucracy (i.e. the administrative component of local government or civic authorities, including town clerks etc) (replaced by county government) quasi-judicial tribunals - judicial and administrative124 Parastatals or state Corporations and quasi-state corporations or quangos e.g. public universities,125 Kenya National Examination Council (KNEC), Kenya Institute of Curriculum Development (KICD) (formerly KIE), Kenya Institute of Government (formerly KIA).
As indicated other aspects of the public service include: the security126 and defence127 or military forces (police, army) etc. At independence it was necessary to separate the public service from the executive to ensure independence and efficiency.
The Constitution of Kenya 2010 provides for decentralization of both legislative and Executive power by the introduction of county governments. It also phases out other constitutional offices that were introduced by the 1969 Constitution, National Accord and Reconciliation Act (NARA) 2008, and the relevant legislation.
7.8 Theorizing Executive (and Presidential) Powers128 There are predominantly three theses of the meaning of the Executive Power Clause:129
7.8.1 The chief executive thesis It maintains that the President, by virtue of his executive power, controls overall law execution in at least two ways:
First, the President may use his executive power to execute the laws himself. When a statute requires an executive action to be taken or an executive decision to be made, the President may act or make the choice because the Constitution establishes that only he enjoys executive power. (See, for example, the problematic argument by former Justice Minister, the late Mutula Kilonzo that President Kibaki decided to re-appoint Retired Judge Aaron Ringera to head KACC because the KACC Board was “taking too long to exercise their statutory functions under the Act.”)130
123 Council Chair.... 124 Discussed later; cf status under constitution 2010 judiciary-cf tribunals; Rent Restriction Tribunal; security. 125 MDAs, SAGAs… 126 Police+AP+GSU 127 KDF=KA+KAF+KN…compare the 128 President, DP, CJ. 129 Not in abstract terms but in context; not conceptualism (Bix). Eeven epistemology must be linked to antology and axiology ….cf Anyong Nyong (…) The Study of African Politics, Heinrich Bolt Foundation, Nairobi. -president Cf. - enumerated (text/letter): where does spirit belong? –residual, inherent…
-Lawyers focus on limited and rational exercise of power. 130K+examples on chief executive thesis? Macharia Gaitho argues: “Many in President Kenyatta’s Cabinet appear timid and reluctant to make decisions without reference to the State House. ‘The President has directed’ has become a common statement from Cabinet Secretaries.” See: Macharia Gaitho (2013) “Five months on, Uhuru juggles one crisis after another,” Sunday Nation, Nairobi, National News, 29/9/13, at 10, at, http://mobile.nation.co.ke/News/Five-months-on-Uhuru-juggles-one-crisis-after-another/-/1950946/2011454/- /format/xhtml/-/o7p9mnz/-/index.html (accessed 30/9/13).
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Compare the arguments regarding presidential nominations of CJ, A-G, and DPP in 2011: Justice Musinga and in CREAW case; Justice Ibrahim; Speaker Marende’s ruling; CIC’s role and view, more powers given to county commissioners etc..... ;131
Karua on appointment of ECK Commissioners in 2007; Kimunya argued in the National Assembly that President Kibaki had the power to appoint county commissioners in 2012 under ss 23; 24; 25? of the 1969 Constitution.132
Second, the President may use his exclusive grant of executive power to direct the law execution of officers.133 Indeed, successive Presidents in Kenya have used this executive power to influence officers of independent agencies or offices e.g. the Attorney General’s office. Recall the President directing the A-G and the Judiciary to reject bail applications by persons accused of offences involving guns etc.134
The Kenyan President is simply the President. Not “CEO”. Why? Remarkably, the many CEOs have powers which the President does not. First, the CEO operates under the memorandum and articles of association which confer a lot of unchecked powers, subject to the Companies Act, the Board...Yet the President’s powers are specifically and accurately enumerated in the Constitution.135 Second, unlike the President, the CEO has a lot of omnibus or blanket or residual powers.
Third, the CEO has a lot of powers to appoint and disappoint (or hire and fire). Thus the “pleasure” principles more accurately applies to the CEO of a (Private) company than the Kenyan Head of Government or Head of State, and even the Queen of England can hardly resort to the pleasure principle.136 ....unlike the President. Fourth, the CEO has a lot of influence on corporate policy and strategy, unlike the President who is constrained by the Constitution, national policy like vision 2030.....137
7.8.2 The non-executive thesis in the Kenyan and African Presidency and Premiership It denies that the Executive Power Clause vests any authority in the President, especially where Presidential powers are outlined elsewhere in the Constitution. For example, Lawrence Lessig and Cass Sunstein have argued that the Executive Power Clause in the US Constitution is
131 MUHURI on county commissioners. 132 The 2010 Constitution had from 27/8/2010 superseded the 1969 Constitution regarding all presidential or executive powers…Was this a case of norm or Constitution-shaping? Wishing there were at least two valid and legitimate constitutional texts? (a la President Biya of Cameroon…). See Chapter 1 (analysis of Article 2: constitutional texts and supremacy)…. 133 Commander-in-Chief; See Nwabueze: no details in Nigerian Constitution in early 1960’s. Conflict existed between the president and the Prime Minister on Armed Forces. 134 Cf Judiciary (2018) “Criminal Procedure Benchbook,” at http://www.kenyalaw.org/kl/fileadmin/pdfdownloads/JudiciaryCriminalProcedureBenchBook.pdf (accessed 11/15/2019). 135 See Chapters 8 CODRALKS 1; Chapters 2,3 4 of CODRALKA 2. 136 Martin Loughlin (2013) The British Constitution: A very short introduction, OUP, Oxford. 137 See also chapters....CODRALKA 1 & 2.
25 probably ‘an empty grant’ and that the President cannot claim any constitutional authority arising from the Executive Power Clause, but instead must look elsewhere in the Constitution.138
This thesis basically divests the President of any powers of execution of the law or superintendence over execution of laws. Proponents of this theory argue that the Executive Power Clause merely provides for the title and number of executives and no more. They argue that if the Clause happened to confer any authority on the President, there then would be no need for enumeration of Presidential powers in other parts of the Constitution.139
However, it is important to take notice of what the non-executive thesis says and does not say. It does not say that the President is prohibited from controlling the execution of law. Rather, it affirms that the President is not vested with the constitutional authority to control the execution of laws, which according to the theory, is the preserve of Congress or Parliament.
Therefore this means that Parliament may choose to transform a non-executive president to an executive President by clothing him with the powers of controlling law execution statutorily. If such an occurrence happened, the President would then cease to be a non-executive and the non- executive thesis phrase would then be a misnomer. To put it succinctly, however, the non- executive thesis simply states that the President bears no constitutional right to either supervise, monitor, control, or direct law execution by others or even so execute the law by himself.
7.8.3 The chief overseer thesis in Kenyan and African Presidency and Premiership It acknowledges that the Executive Power Clause attempts to achieve a responsible and efficient single executive who can be held accountable for law execution, and who can act quickly and energetically, as an overseer of the executive arm of Government. 140
The chief overseer thesis does not merely dismiss the Executive Power Clause as a non-entity like the non-executive thesis. Rather, it calls for a modest reading of the Clause by arguing that the clause portends a responsibility on the part of the President to ensure execution of laws and that the President serves as a counterweight to parliament.141
The clause merely confers authority on the President to shape rather than control or direct, the execution of laws. Simply put this thesis argues that the President is a non-coercive supervisor who has but to cajole his officers into faithfully executing laws. The President can supervise execution of statutory powers by other public officers, but cannot direct the performance of such duties. Cf. President Uhuru Kenyatta ordering officials accused of grafts to step down, including elected county officials contained in the list of shame.
138 - enumerated See Lawrence Lessig and Cass R. Sunstein (1994) “The President and the Administration,” 94 COLUM. L. REV. 1, 4 (1994). - pares (the first among equals); Chapter 11 vs. Art 129. 139 Ibid., at 48. 140 Peter L. Strauss (1997) “Presidential rule making,” 72 Chi.-Kent L. Rev. 965 (1997) at 985. 141 Ibid., at ......
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In Kenya, Constitutional law and practice has leaned towards a Chief Executive Thesis.142 Section 24 of the former Constitution gave the President “the powers of constituting and abolishing offices for the Republic of Kenya, of making appointments to any such office and terminating any such appointment,” but subject to the former Constitution and any other law. Section 25 further provides that “Save in so far as may be otherwise provided by this Constitution or by any other law, every person who holds office in the service of the Republic of Kenya shall hold that office during the pleasure of the President.” This grant of the executive was contested in Mwangi Stephen Muriithi v. A-G.143
The chief executive authority of the President was bolstered by his near absolute tenure (or unlimited eligibility) under the Constitution 1969.144 The President had the power to refuse vacation from office of a Member of Parliament (himself included) who was liable to lose his/her seat for failure to attend 8 consecutive meetings without the Speaker’s permission. In addition to this, the President could be removed for inability to perform functions due to mental or physical infirmity.
However, the question as to whether or not he was fit was one to be raised by the Cabinet.145 Given that all Cabinet Ministers were appointees (and perhaps sycophants) of the sitting president, it was unlikely that any cabinet would pass such a resolution against an incumbent president. It therefore does not come as a shock that Kenya has gone through periods of having ill and absentee presidents, as well as having had a president die in office.
In addition, the Cabinet Office Handbook on Governing Responsibility in Kenya, which outlined the operational framework of the Executive, provides that statutory powers vested in Ministers (Cabinet Secretaries) under the relevant statutes are held in trust of the State. This and other instruments need to be reviewed in the light of Constitution 2010.
The Constitution 2010 requires fundamental restructuring and reform of the executive and administrative bureaucracy on the first election after the promulgation. The composition of the executive therefore changed after General Election of March 4 2013. The national executive is thus be composed of the President, Deputy President, and the Cabinet. With the introduction of the county governments, the role of national executive is meant to be greatly reduced.
The “devolved” government is meant to have a great impact on the traditional powers of the President in a number of ways, including reducing the power to determine the distribution of resources and positions to different geographical and ethnic constituencies in Kenya. This power has been used to prop up patrimonial rule. In addition, because the executive power in a county
142 CEO under the 1969 Constitution-before 2008; 23, 24, 25-Head of Government 143 Mwangi Stephen Muriithi v. A-G Civil Appeal No. 1170 of 1981. See what I have called Mwangi S. Murrithi 1,2,3,4. See also John Kamau (2018) “Ex-intelligence boss Mwangi Muriithi's failed bid to get justice,” Sunday Nation, Nairobi , 12/11/2018. See Chapter 22 CODRALKA 1. 144 B.O. Nwabueze (1974), Presidentialism in Commonwealth Africa C. Hurst & Nwamife, London & Enugu; Benjamin Obi Nwabueze (2003) Constitutional Democracy in Africa Vol. 1, Spectrum Books, Nigeria. 145 Sec 12, Constitution of Kenya, 1969.
27 government is vested in the Governor, the President’s influence over the county executive officials will be minimal.146 Has this been the case? Has there been no influence?
7.9 Comparison of the Presidency; 2010 Constitution vis-à-vis 1969 Constitution147
Under the 1969 Constitution Under the 2010 Constitution 1. Was the Head of State Remains the same 2. Was the Head of Government Remains the same 3. Chaired the cabinet. Remains the same 4. Appointed the members of the cabinet and Appoints the members of the cabinet with the may dismiss them. approval of the National Assembly and may dismiss them. 5. Appointed the Vice-President and could When standing for election must have a dismiss him/her. running mate who will become the Deputy President if the presidential candidate is elected. 6. Appointed permanent secretaries. Appoints principal secretaries with the approval of the National Assembly. 7. Appointed and removed members of the Does not have these powers. Advisory Committee on the Prerogative of Mercy. 8. Appointed the members of the Electoral Will formally appoint the members of the Commission. Electoral Commission, but these must be approved by the National Assembly, and a law is to prescribe how nominations are to be made (which will probably not give any choice to the President). 9. Appointed the Chief Justice. Has to appoint the person nominated by the Judicial Service Commission provided that person is approved by the National Assembly. 10. Appointed (from among the judiciary) the Appoints two of the 11 members of the JSC only two members of the Judicial Service (who are non-lawyers), and these must be Commission who were not ex officio. approved by the National Assembly. 11. Appointed the Attorney-General. Appoints the Attorney-General with the approval of the National Assembly. 12. Appointed the Controller and Auditor Appoints the Controller of Budget and Auditor General. General (who must be approved by the National Assembly). 13. Appointed the Public Service Appoints the Public Service Commission with Commission. the approval of the National Assembly. 14. Appointed the Commissioner General Appoints the Inspector-General of Police with
146 See Chapter 5 CODRALKA 2, revised from Ben Sihanya (2013) “Constitutional implementation in Kenya, 2010-2015: Challenges and prospects,” A study under the auspices of the Friedrich Ebert Stiftung (FES), Occasional Paper No. 5, Nairobi, January 2013. 147 Yash Pal Ghai & Jill Cottrell Ghai (2011) Kenya’s Constitution: An Instrument for Change, Katiba Institute, Nairobi, Kenya, at 97. See Chapter1 CODRALKA 1.
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the approval of the National Assembly. Appoints 6 of the 9 members of the National Police Service Commission 15. Appointed ambassadors. Appoints ambassadors with the approval of the National Assembly. 16. If so specific provision existed, had the This power is to be of the Public Service power to create offices and appoint to Commission. them and dismiss the appointees. 17. Appointed tribunals to look into the Attorney- General has security of tenure. question of removal of various Parliament initiates process of removal of commissions, the Attorney-General, the commissioners, the Auditor-General and the Controller and Auditor General, and Controller of Budget; the President must decides whether individuals should be appoint the tribunals to look into the question suspended pending inquiry. and decides whether individuals should be suspended. 18. Decided where Parliament sat. Decides only the date of the first sitting of each House after the general election. 19. Could dissolve Parliament any time. Cannot dissolve Parliament. 20. Nominated 12 members of the National Cannot nominate any members of the National Assembly. Assembly. 21. Signed Bills passed by the National Remains the same except that if the President Assembly or could send them back giving fails to sign a law within a time limit, it reasons; if Parliament passed the Bill automatically comes into force. again by two-thirds, the President had to sign it. 22. Could pardon offenders, reduce or remit May carry out these functions only acting in punishments imposed on someone accordance with the advice of the Advisory convicted. Committee. 23. Could bring into effect Part III of the Declares a state of emergency which lapses if Preservation of Public Security Act Parliament does not approve within 14 days. (declaring a state of emergency) (lapses if Parliament does not approve within 28 days). 24. Was Commander-in-Chief of the Armed Remains the same. Forces. 25. Not mentioned- presumably a power of Declares war with the approval of the National the President. Assembly. 26. Appoints the Chair of the Commission on Revenue Allocation with the approval of the National Assembly. Appoints the Chair of the Salaries and Remuneration Commission with the approval of the National Assembly.
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Source: Yash Pal Ghai & Jill Cottrell Ghai (2011), Kenya’s Constitution: An Instrument for Change, Katiba Institute, Nairobi, Kenya at 97-98.
7.10 The problem of transplanted executive and presidential or premier model in Kenya and Africa The presidential and executive model under the 2010 Constitution is largely transplanted from the US and South Africa. What are its strengths? And weaknesses? A SWOT and PESTEL analysis is necessary. What is Kenyan experience? What lessons can Kenya learn from comparative constitutional experience on the executive and presidency in the UK, South Africa, Nigeria, Tanzania, and Uganda?
The 2010 Constitution of Kenya enacts transplanted or borrowed models on at least three matters. First, the Presidency is largely borrowed from the US Constitution.148 Second, the Cabinet Secretary system is mainly borrowed from the US Constitution. Third, the relations between the Presidency and the rest of the executive or administration is largely borrowed from the British White Hall traditions of political neutrality or non partisanship.149
JB Ojwang’ argues that the structure adopted for the executive often reflects certain specific objects, lessons, fears or ideals.150 The Kenyan executive is a product of (constitutional) history and political experience.151 At independence, it was largely modelled or based on the British Westminster structure hence between 1963 and December 1964 Kenya had a dual (executive) system. The Governor-General (on behalf of Queen Elizabeth II of England) exercised the ceremonial and dignified facet or aspect of executive authority (cf. Arts. 131-132 of the Constitution of Kenya 2010). On the other hand, the Prime Minister during that period exercised the efficient facet, i.e. he was responsible for the day-to-day running of the Government. (cf. Arts.131-134 of the Constitution of Kenya 2010).
However, there have been problems, since independence, regarding the structure of the executive. Some of the reasons for these problems include:152
First, the transplanted model has not been suitable for the Kenyan context. For instance,at independence, Jomo Kenyatta, Thomas Joseph (TJ) Mboya, Julius Nyerere and others argued that the dual executive authority was not suitable for Kenyan (or African) circumstances mainly because traditional African societies were only familiar with single and undivided executive authority (or sovereign). That they did not recognize or appreciate more than one centre of power. This perspective or view is historical and inaccurate because many Kenyans recognized the roles of various individuals and bodies or multiple centres of power, e.g. warriors, leaders of
148 Cf Chapter 4 of CODRALKA 2 revised from .Ben Sihanya (2011) “The Presidency and Public Authority in Kenya’s new Constitutional Order,” SID Constitutional Working Paper Series No. 2 9-10. 149 See Martin Loughlin (2013) The British Constitution: A Very Short Introduction, OUP, Oxford 150 Jackton B. Ojwang (1990) Constitutional Development in Kenya: Institutional Adaptation and Social Change, African Centre for Technology Studies (ACTS), Nairobi,at 75-80 ff; Cf. JB Ojwang (2012) The Ascendant Judiciary in East Africa, Strathmore University Press, Nairobi, Kenya. 151 Westminister; White House; 2011; US president executive; ambivalence. 152 See JB Ojwang, ibid; Y.P. Ghai and JPWB McAuslan, Public Law and Political Change in Kenya OUP, Nairobi, 1970, Chap. 6; Okoth Ogendo (1991, 2000), Nwabueze (1974) Presidentialism.
30 warrior cadres or groups, diviners and medicinemen e.g. Orkoiyot, Laibon, rainmakers, Nabongo Mumia of Wanga, Councils of Elders, etc.153
Second, while in Britain the executive authority was based on popular participation in the political process (through an elected PM, etc), in Kenya, popular participation came very late in the colonial experience. Indeed it was only from 1957 and in the early 60s that the colonial Government allowed the representation of the African majority in Parliament and in key executive roles as well as the participation of Africans in the electoral process and in party politics.
Third, the British executive power structure was very complex and largely technique-oriented. Hence Kenya’s Independence Constitution was extremely complex, long, unwieldy, untidy and sometimes incomprehensible because it sought to capture the various nuances of the dual British system and regional (or majimbo) government.154
Fourth, Ghai argues that one of the challenges in running the independence model of Government stemmed from the fact that division at the top was confusing and weakening. It invited clashes of personalities and failed to provide a clear focal point for loyalty and support. In addition, there would be difficulties in times of elections, or succession of governments; particularly when the Governor-General was a local citizen only recently retired from an active life in politics at the very time when it is essential that the Constitution leaves no room for dispute, ore abuse of power.155
In America, on the other hand, the highest level of executive authority is undivided. It is singular or single.
Immediately after independence, the KANU political elites sought to dismantle the Independence Constitution in order to implement the Kenyatta-Mboya-Nyerere theory of singular executive authority (one centre of power). On 12/12/64, Kenyatta, the Prime Minister, was transformed or transmuted into a President complete with full executive authority and ceremonial powers. This was done by constitutional fiat rather than popular elections or a referendum.
Does the 2010 Constitution embody a transplanted executive or presidential model? Which model(s)? What lessons have or can Kenya learn? The constitution of Kenya 2010 seems to provide for a limited presidential model. To begin, the constitution provides for a pure presidential system. This it does by providing that the President is both the Head of States and Government (Art. 131).156
153 Acceptability. 154 Ben Sihanya (forthcoming 2019) “Decentralization of Executive, Administrative and Parliamentary powers in Kenya and Africa,” 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.
155 Yash P. Ghai& J.P.W.B. McAuslan (1970) Public Law and Political Change in Kenya, OUP, Nairobi, at 221. 156 Ben Sihanya (forthcoming 2018) “Typology and classification of constitutions and states and Governments: contextualizing Kenya, South Africa, Egypt, Nigeria, USA and Germany”
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However, unlike the US Constitution which emphatically states that executive power is to be exercised by the President, the Kenyan Constitution provides that executive authority is to be exercised by the President with the assistance of the Deputy President and the Cabinet.
However, it states that executive authority derives from the people and shall be exercised in accordance with the Constitution.157 The model provided for in the Constitution 2010 appears to be a limited presidential system as demonstrated by the considerably reduced powers of the hitherto imperial presidency. Is the model a weak unitary executive or a quasi-federal system?
7.11 Summary of Findings, Conclusion and Reforms on Executive Powers and functions in Kenya and Africa: Concepts, theory and history This Chapter finds and concludes that presidential executive power in Kenya permeates all the arms and organs of Government. Executive power is particularly concentrated on the Presidency. The President has excessive control, power and authority over the other top executive offices from the DP, CS, PSs, CASs; security organs and even commissions linked to the executive. This power needs to be diffused and mechanisms put in place to ensure the exercise of the same is checked.
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157 (Art 129).
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