CHAPTER 7 EXECUTIVE POWERS, FUNCTIONS, AND STRUCTURE IN KENYA AND AFRICA CONCEPTS, THEORY, HISTORY, AND PRACTICE This Chapter may be cited as: Ben Sihanya (forthcoming 2020) “Executive Powers and functions in Kenya and Africa: Concepts, theory and history,” in Ben Sihanya (2020) 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 Public, Government and Executive Power in Kenya and Africa1 My overarching argument is that the production, regulation and reproduction of executive power in kenya and Africa has to content with three interrelated theoritical and philosophical question. First, the need to promote popular sovereignity, constitutional democracy and service delivery. Second, avoiding executive fiat and despotism. Third, avoiding anarchy. We review three inter-related constitutional questions on public, government and executive power in Kenya and Africa. First, what are the three sets of public or governmetal powers in Kenya and Africa? Second, what are some of the components of these legislative, executive or administrative, and juridical or adjudicatory powers? Third, how are these powers, related procedures, shared, contested and reproduced horizontally and vertically? What lessons do we learn from Afro-Kenyanist constitutional, legal and political theory of power and the related rights or liberties and processes? How did the Building Bridges Initiative (BBI) conceptualize and address public, government and executive power? 7.1.1 The three powers and arms of Government in Kenya and Africa The three sets of powers are legislative, executive and judicial. 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 of the Constitution of Kenya 2010 in terms of the powers of the National and 47 County Governments.2 Similar provisions are found in the relevant constitutions and statutes or regulations of Nigeria, South Africa, Uganda, Tanzania, Ghana, US3 and UK. The Fourth Schedule has been in debate in terms of the vesting, transfer and exercise of powers between the National and the 47 County Governments. 1 See the reconceptualisation of constitutional and juridical Powers, jurisdiction, rights and liberties in Chapter 1 of CODRALKA 1. 2 The Fourth Schedule is reproduced and analyzed in Chapter 6 above. Will be in Chapter 1 and 5, cross referenced. 3 Art 1 of the United States Constitution enumerates legislative powers. See Chapters 1, 5, 6 above… 1 One of the most deeply – debated question in the 2010–2020 period is the transfer of Nairobi City County Government functions to the National Government and the subsequent appointment of Director General of the Nairobi Metropolitan Services (NMS).4 7.1.2 The “nature” and character of executive powers in Kenya and Africa What is the character of executive powers? It has been argued that the main role of the Executive is to execute, administer, implement, enforce or apply the laws and policies and particularly laws made by Parliament and interpreted by the Judiciary. 7.1.2.1The character of executive powers Executive powers are urgent, efficient, direct and ubiquitous. An example is impounding Kamlesh Pattni’s passport5 for fear that he may leave Kenya while criminal charges were pending against him.6 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 to suspend or confiscate a passport or any other traveldocuments. 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 General of Immigration would be prejudicial to the interest of the State or holder of the passport. Remarkably, executive powers are limited by the Constitution and the law including court orders, even in the urgent and important matter of immigration. An example is in the pleadings, ruling and judgment in Miguna Miguna v. Fred Okengo Matiang’i Cabinet Secretary, Ministry of Interior and Coordination of National Government & 6 Others; Kenya National Commission on Human Rights (Interested Party) (2018).7 Legislative powers generally take a longer process.8 4 Office of the President (2020) “Functions of Nairobi County handed over to the National Government pursuant to Art 187 of the Constitution,” at https://www.president.go.ke/2020/02/25/functions-of-nairobi-county-government- handed-over-to-the-national-government-pursuant-to-article-187-of-the-constitution/ (accessed 3/4/2020). 5 Republi of Kenya (2005) Report of the Judicial Commission of Inquiry into the Goldenberg Affair, Government Printers, Nairobi, at http://kenyalaw.org/kl/fileadmin/CommissionReports/Report-of-the-Judicial-Commission-of- Inquiry-into-the-Goldenberg-Affair.pdf (Accessed 10/4/2020). 6 Republi of Kenya (2005) Report of the Judicial Commission of Inquiry into the Goldenberg Affair, Government Printers, Nairobi, at http://kenyalaw.org/kl/fileadmin/CommissionReports/Report-of-the-Judicial-Commission-of- Inquiry-into-the-Goldenberg-Affair.pdf (Accessed 10/4/2020). 7 Miguna Miguna v. Fred Okengo Matiang’i Cabinet Secretary, Ministry of Interior and Coordination of National Government & 6 Others; Kenya National Commission on Human Rights (Interested Party) [2018] eKLR, Petition No. 51 of 2018. 8 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 2018 giving MPs a KES 9.3million send-off each. This was passed by Parliament almost instantly. 2 The Executive generally takes or is expected to take a shorter process and time in deciding. However, there is criticism of bureaucratic red tape which is part of maladministration and limited or lack of fair administrative action under Art 47 of the Constitution.9 7.1.2.2 The “nature” of the Executive powers What does the Executive execute? The Executive was headed by Queen Elizabeth II and Prime Minister Jomo Kenyatta between 1/6/1963 and 12/12/1964.10 Then 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.11 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.12 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. While the nature of Executive powers has not attracted as much judicial or other scrutiny in Kenya, from the perspective of conceptualization theory, philosophy and epistemology, the exact meaning of the Executive Power Clause, and by extension, Executive powers, has been debated widely in the West, especially in the US, UK, and in South Africa13 and Nigeria.14 9 See Chapter 11 on Administering and Regulating Security and Criminal Justice in Kenya and Africa. Goldenberg was 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 and 2017…. electoral cycles. It was a campaign manifesto). 10 See Chapter 9 on President and Prime Minister in Kenya and Africa. 11 Administration; appropriate Cabinet Secretary and Principal Secretary; Regal, Head of State, conferring honours; Head of Government- executive; National Land Commission (NLC); nominated or appointed…? 12 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). 13 For instance, in South Africa, there has been debate on the executive and administrative nature of Executive power in the context of a “post” racist or post apartheid S. Africa. 14 Cf.Vicky Jackson and Marck Tushnet (2006) Comparative Constitutional Law, Foundation Press, New York, 2nd edition; 3rd ed. (2020). 3 Scholars have developed a three-pronged typology for studying executive powers.15 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.16 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.17 Third, the inherent power theory is to the effect that Executive power and functions are in inherent in the executive with no need of such functions being defined by law.18 This book proceeds from the premise of specific grant or enumerated theory of executive power and all public power.