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Constitutional Law Teaching Points CHAPTER 9B1 PRESIDENT AND DEPUTY PRESIDENT IN KENYA AND AFRICA2 This Chapter may be cited as: Ben Sihanya (forthcoming 2020) “President and Deputy President in Kenya and Africa,” in Ben Sihanya (2020) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa (CODRALKA) Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya. 9.14.2 Powers and functions of President, Deputy President, Prime Minister and Cabinet in Kenya and Africa in comparative and transnational context According to Article 152(1), the Cabinet consists of the President, the Deputy President, the A-G and 14-22 Cabinet Secretaries.3 The Cabinet Office should provide the President and the Deputy President4 with public service support. The Cabinet office was expected to support the President and the Prime Minister under section 15A of the 1969 (2008) and the National Accord and Reconciliation Act (NARA), 2008. The Cabinet office should directly assist the President and Deputy President in performing all of their duties and responsibilities. In this arrangement, the President has been the Head of the Executive and Head of State; the Deputy President as Deputy to the President; and Prime Minister as supervisor and coordinator of Government functions under the then Grand Coalition Government. The BBI debates proposed the reintroduction of the Office of the Prime Minister with key executive roles shared with the President. Thus under Article 153(3) a Cabinet Secretary “shall attend before a meeting of the National Assembly, or the Senate, when required by the committee, and answer any question concerning a matter for which the Cabinet Secretary is responsible.”5 Through ongoing consultation with departments and agencies, the Cabinet Office is to provide the President and Deputy President6 with comprehensive information and analysis on 1 This Chapter is a continuation of Chapter 9A on President and Deputy President in Kenya and Africa. Some of the materials in this Chapter 9B will be copy edited to Chapter 9A and vice versa…. In fact Chapters 9A and 9B will be reviewed so that the President and Deputy President are analyzed in separate Chapters partly because constitutional text and practice in Kenya, Nigeria, Uganda, Tanzania and most African States treat them differently. Only the South African text and practice, and the Kenyan 2013-17 practice gave the impression of “the Presidency” including the President and Deputy President (Kenya) or President and DP (South Africa), respectively. 2 To cite the respective executive orders on President, Prime Minister, Deputy President, Vice President (VP), Deputy Prime Ministers (DPMs).... 3 The Cabinet portfolio after the 2013 elections has at least 14 and at most 22 Cabinet Secretaries (CSs). The first Cabinet had 21 CSs; the one unidentified Ministry was to give a chance to the President to add one slot if the President deemed it necessary. What is the constitutionality of this portfolio? Cf. ads prepared by the Public Service Commission (PSC) for prospective principle secretaries…. See Executive Orders by President Uhuru Kenyatta…. 4 Roughly equivalent to Vice President under the 1969 Constitution from 1964 to 2013… see Chapters below on DP…. 5 Practice…. Cf… Page 1 of 58 contemplated policies and priorities. Specifically, it should provide information on the organization7 of the Government and its relations with Parliament, the Judiciary, the private sector, civil society organization (CSO), development partners, the public and others. It should also provide information on appointment of holders of senior offices, overall spending programme of the Government,8 functioning of the Cabinet decision-making system, development of major policies, management of intergovernmental relations9 and other specific issues. The Cabinet Office also provides the necessary support to the Deputy President and to the other Cabinet Secretaries. It is a Government Secretariat. It is expected to be politically impartial or non-partisan and to coordinate operations at the centre of Government.10 The Cabinet Office is the custodian of records of present and past regimes and therefore “provides continuity during regime change and assists in the management of a smooth transition.”11 Under the National Accord and Reconciliation Act (NARA), 2008, the functions of the Cabinet Office seemed to replicate those expected of the then Prime Minister as coordinator and supervisor of all Government functions and affairs and also those of the Principal Secretary (PS) in the Office of the President. Remarkably, during the negotiations between Raila’s ODM party and Kibaki’s PNU on the formation of the Grand Coalition Government, allocation of the proposed Ministry of Cabinet Affairs was controversial. Supporters of President Kibaki said it had always been in Office of the President (OP).12 Constitutional democrats argued that NARA and practice indicated that the office is always under the coordinator and a supervisor of Government functions, hence the PM.13 In addition, the structure of the Cabinet office is not clear. Therefore, the office is not overseen by responsible organs under the Constitution, e.g. Parliament and other, constitutional watchdogs like the Controller of Budget (COB) and Auditor General, or even the Ombudsperson. Yet it is part of the public service structure. 6 When there is an executive PM, the focus is on President and Prime Minister, with the Deputy President (DP) coming in when assigned by or acting as President…. Where the Prime Minister is less powerful, and is largely a “Super” Minister, the focus is on the President and the Deputy President (when executing presidential functions)…. 7 …. 8 …. 9 It would need to consult and liaise with the Ministry of Foreign Affairs (MFA). The President as the Head of State is the first diplomat under the Vienna Convention on the Law of Treaties, 1969; Article 3, Vienna Convention on Diplomatic Relations, 1961; and Art…., Vienna Convention on Consular Relations, 1963, as well as State practice. See Malcolm Shaw (2008) International Law, Cambridge University Press, (6th ed.)…. at…; D.J Harris (2009) Cases and Materials on International Law, Sweet & Maxwell, at…; Francis D.P. Situma International Law Teaching Materials, University of Nairobi Law School,….(on file at Sihanya Mentoring)… 10 …. 11 ….Handbook on Governing Responsibility. ….This role has been problematic in the past…. 12 Cf. Raila Odinga (2016) The Flames of Freedom, Mountain Top Publishers & Worldreader, 13 Ben Sihanya and Duncan Okello (2010) “Mediating Kenya’s post-election crises: The politics and limits of power sharing agreement,” Chapter 3 of CODRALKA 1….. Page 2 of 58 9.14 Powers and Functions of the President, Deputy President and Prime Minister in Kenya and Africa What are the typologies of the powers and functions of the President, Deputy President (or Vice President) and the Prime Minister in Kenya and Africa? How does this compare to the UK, US, India….?14 A three pronged typology is emerging regarding the powers and functions of the President, Deputy President or Vice President, and Prime Minister in Kenya and Africa. First, the President has a lot of but not plenary executive and administrative powers in States that approximate the pure presidential system, like Nigeria(?). The Deputy President (or Vice President) is largely an assistant who has limited specific constitutional, statutory15 and political16 or administrative, power who can only act in a high level Executive role if assigned by President.17 Second, in States approximating pure parliamentary system like South Africa, the Prime Minister or President is largely …..by the Legislature and/or the political party(ies). Third, there are numerous constitutional and political experiments with parliamentary leaning and presidential leaning systems. Kenya is the latter.18 9.14.1 Election, (Dis)Appointment, Powers and Functions of the President, Premier, DP, VP, DPMs under the Constitution 2010, 1969 and National Accord and Reconciliation Act (NARA) 2008 Office Election/Appointment Powers and Functions19 Disappointment/Dis missal President Under Article 136 of the Arts. 131, 132, 133, 134, Removal by Constitution, 135, … Under Article 132 impeachment under (1) A person qualifies for of the Constitution: Article 145 of the nomination as a presidential (1) The President shall-- Constitution candidate if the person-- (a) address the opening of Removal on grounds (a) is a citizen by birth; each newly elected of incapacity under (b) is qualified to stand for Parliament; Article 144 of the election as a member of (b) address a special sitting Constitution Parliament; of Parliament once every 14 Cf…. List of Presidents of Kenya….; Lists of Presidents of South Africa….; List of Presidents of Nigeria….; List of Presidents of Uganda….; List of Presidents of Tanzania…; List of Presidents of Ghana. 15 Cf Chair of Independent Budget and Economic Council (IBEC) under s…. of Intergovernmental Relations Act (IGRA), 2012. 16 Cf Deputy Party Leader…. See Art. 9.1 of the Jubilee Party Constitution; Art… 6.3 of the ODM Party Constitution; Art. 49 of FORD-Kenya Party Constitution; Art…. ANC Party Constitution…. 17 …. 18 Under the 2010 Constitution; Bomas and BBI debates proposed a Parliamentary leaning system or executive. 19 A column should capture the discussions in this book on the relationships among the five (5) Executive offices in Kenya
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