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Cabinet, Cabinet Secretary, Secr CHAPTER 14 ADMINISTRATIVE BUREAUCRACY AND REGULATORY PROCESS AND JUSTICE IN KENYA AND AFRICA: Cabinet, Cabinet Secretary, Secretary to the Cabinet, Chief Administrative Secretary, Principal Secretary, HOPS (HOCS), and County Administration [CPSB, County Secretary] This Chapter may be cited as: Ben Sihanya (forthcoming 2020) “Administrative Bureaucracy and Regulatory Process and Justice in Kenya and Africa: Cabinet, Cabinet Secretary, Secretary to the Cabinet, Chief Administrative Secretary, Principal Secretary, HOPS (HOCS), and County Administration [CPSB, County Secretary],” in Ben Sihanya (2020) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol. 2: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya 14.1 Introduction to Administrative Bureaucracy, Cabinet, Cabinet Secretary, Secretary to the Cabinet, Chief Administrative Secretary, Principal Secretary, HOPS (HOCS), and County Administration in Kenya and Africa This Chapter conceptualizes, problematizes, analyses and contextualizes administrative bureaucracy in Kenya and Africa, with specific focus on Cabinet Secretaries, Secretary to the Cabinet, Chief Administrative Secretary, Principal Secretary, Head of Public Service (HOPS), Head of Civil Service (HOCS), and County Administration using and Afro-Kenyanist constitutional sociology, theory, methodology and approach. What are the debates on the Cabinet associated with the Building Bridges Initiative (BBI)? 14.2 Conceptualising, Problematizing and Contextualizing Cabinet (Secretaries) in Kenya and Africa There has been a long debate on the meaning and significance, including appointment, powers, functions, duties, assignment, promotion, re-assignment (e.g. reshuffling), number,… liberties, rights, privileges, discipline, disappointment of Ministers under the 1963, 1964, 1969, 2008, 2010 Constitutions.1 Under the 2010 Constitution, a major departure from Afro-Kenyan tradition is that they are not Members of Parliament (MP)2, hence the BBI debate that top members of the Executive should sit in Parliament, and especially the National Assembly.3 1 Cabinet under Jomo Kenyatta, Daniel Moi, Mwai Kibaki, Uhuru Kenyatta… 2 See Article 132 of the Constitution of Kenya 2010. 3 These are the members of Cabinet, Prime Minister, Deputy Prime Minister and Cabinet Members. See the BBI Report, 2019, at https://d2s5ggbxczybtf.cloudfront.net/bbireport.pdf (accessed 19/8/2020). See also Chapters 9A, 9B and 10 of CODRALKA 1 above. 1 14.2.1 Cabinet Secretaries and Cabinet Ministers in Kenya and Africa The Constitution of Kenya 2010 introduces Cabinet Secretaries to replace Ministers under Article 152. The President nominates and, with the approval of the National Assembly, appoints the Cabinet Secretaries.4 Section 16(1) of the 1969 Constitution provided that “there shall be such offices of Minister of the Government of Kenya as may be established by Parliament or, subject to any provisions made by Parliament, by the President.” Sub-section (2) provided that the President shall, subject to the provisions of any written law, appoint the Ministers from among the members of the National Assembly. Parliament has never legislated on the offices of Ministers of the Government of Kenya. However, a bill was debated in Parliament seeking to establish the number of Ministries and qualifications for Ministers of the Government of Kenya. It was sponsored by Mr Ekwee David Ethuro, then Member of Parliament (MP) for Turkana Central.5 President Kibaki returned the Bill arguing that the issues were covered by the Constitution of Kenya 2010. Article 152(2) provides that there should be no fewer than fourteen and no more than twenty two Cabinet Secretaries.6 Section 4(2) and (3) of the National Accord and Reconciliation Act, a transitional legislation, amended the provisions of the 1969 Constitution regarding the appointment of Ministers and Assistant Ministers of Government.7 It provided: “(2) In the formation of the Coalition Government, the persons to be appointed as Ministers and Assistant Ministers from the political parties that are partners in the coalition other than the President’s party shall be nominated by the Leader of the Parliamentary party in the coalition and thereafter there shall be in full consultation with the President in the appointment of all Ministers. (3) The composition of the coalition Government shall at all times reflect the relative Parliamentary strengths of the respective parties and shall at all times take into account the principle of portfolio balance.” 4 In 2013, nominations and appointments, all those nominated by the President were approved by the National Assembly. “Tyranny of numbers”?.... some of the Cabinet Secretaries had clear corrupt records or tendencies. By 2015, some were named by President Kenyatta and made to “step aside” and later “cleared.” 5 He was the Member of Parliament for Turkana Central from 1998 to 2013. He is also the first Speaker of the Senate under the Constitution of Kenya 2010, March 28, 2013 to 2017. See Senate Website, at http://parliament.go.ke/index.php/the-senate/sen-david-ekwee-ethuro (accessed 19/8/2020). 6 The Jubilee Government appointed 18 Cabinet Secretaries in 2019 7 During the debate on power sharing, Party of National Unity (PNU), through Uhuru Kenyatta and co. argued that PNU and ODM should share responsibility, not power. Orange Democratic Movement (ODM), though Prof Anyang’ Nyong’o and others argued that power sharing was a basis for joint responsibility and to enable ODM to implement its commitment through its manifesto. See …. Prof Nyong’o served as Secretary General of ODM, and from 2017 he was the second Governor of Kisumu County. 2 Articles 152 and 153 Constitution of Kenya (2010) creates 14-22 offices of Cabinet Secretaries. The Constitution of Kenya also creates, under Article 155, the offices of Principal Secretaries (PSs), who shall be the effective administrators of Ministries and State Departments. Cf. Parliamentary Secretary at Independence, and Permanent Secretary over the years… Article 152(1) states that there shall be a Cabinet consisting of the President; the Deputy President; the Attorney-General; and Cabinet Secretaries. Section 17 of the 1969 Constitution provided that there shall be a Cabinet consisting of the President, the Vice-President and the other Ministers. Ss. (2) provided that the function of the Cabinet shall be to aid and advise the President in the government of Kenya. How did Cabinet (Government) develop? UK, USA, developments, among others? Cabinet development in South Africa? Nigeria? Uganda? Tanzania? Ghana? 14.2.2 Responsibilities of Cabinet Secretaries in Kenya Article 153 provides that Cabinet Secretaries are accountable individually, and collectively, to the President for the exercise of their powers and the performance of their functions. They are also responsible to Parliament (Art. 153(4) (b)).8 The 1969 Constitution as amended in 2008 was to the effect that Cabinet was collectively responsible to the National Assembly for all things done by or under the authority of the President, [the Prime Minister] or the Vice-President or any other Minister in the execution of his office.9 Is it constitutional for Cabinet Secretaries to appear before the National Assembly to answer questions under the Constitution of Kenya 2010?10 This move was opposed by the then Attorney- General, Prof Githu Muigai, the Commission for the Implementation of the Constitution (CIC) and the Legal Affairs Office in the Presidency.11 The Commission for the Implementation of the 8 Cf. The then Devolution and Planning Cabinet Secretary Anne Waiguru impeachment motion, see Dennis Odunga (2014) “MP files motion to impeach Devolution Secretary Waiguru,” Daily Nation, 20/5/2014, at https://www.nation.co.ke/news/MP-files-motion-to-impeach-devolution-secretary-Waiguru/1056-2321504- ixhi0az/index.html (accessed April 13, 2020). In April 2020, the Kirinyaga County Governor, faced another impeachment motion. The court suspended the impeachment proceedings citing effects of Covid-19 crisis. See Maureen Kakah (2020) “Court halts Waiguru impeachment process over coronavirus,” Daily Nation, April 7, 2020, at https://www.nation.co.ke/news/politics/Coronavirus-halts-Waiguru-impeachment-process/1064-5516836- xhsitcz/index.html (accessed April 13, 2020), and from the BBI debate. 9 The interpolation or insertion is from the Constitution of Kenya (Amendment) Act 2008, and the National Accord and Reconciliation Act (NARA), 2008 (expired 2013). 10 Comparatively….USA, Uganda, Nigeria…In South Africa, the National Council of Provinces (NCOP) exercises oversight by requiring Cabinet ministers to attend a meeting of the NCOP or a committee under it. 11 …. 3 Constitution (CIC) argued that Cabinet Secretaries were not supposed to answer questions on the floor of the House.12 The Commission for the Implementation of the Constitution (CIC) even filed a constitutional petition at the High Court to challenge the decision by Parliament to amend its Standing Order Rules, and set up a committee on oversight which would then summon Cabinet Secretaries.13 Subsequently, the National Assembly summoned Cabinet Secretaries. Three examples are indicative. First, the National Assembly summoned Dr Fred Matiang’I to appear before the National Assembly Committee on Administration and Security to answer to questions of disobedience to court orders and the
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