Does appearance of Cabinet Secretaries in Parliament upset separation of powers?

In July 2018, the then Cabinet Secretary for Tourism, Hon. Najib Balala found himself in a hot seat when he said that he was only answerable to the President. This was after the death of ten endangered black rhinos which rightfully drew criticism on his leadership. Days later, he made a public apology and appeared before the National Assembly Committee on Environment to answer questions on that predicament as rightly provided for by the Constitution of Kenya, 2010.

On Thursday, 29^th September 2022, during the opening of the 13^th Parliament, President Dr. William Ruto asked Parliament to provide a mechanism in the existing legal framework for Cabinet Secretaries to appear before Parliament and answer questions from Members of Parliament (MPs) and further offer explanations to various government policies under their different offices. The President explained that this would further promote Parliament’s oversight of the Executive. This position was also echoed in the memorandum by the President to the Speakers of both the National Assembly and Senate dated 9^th December 2022 further noting that the Principle of Separation of Powers should not be interpreted rigidly.

Consequently, this has led to the adoption of a report of the Procedure and House Rules Committee that amended various sections of the Standing Orders to accommodate the suggestions by the President. Following the amendments to Standing Orders 25A and 40, Cabinet Secretaries will now appear before the National Assembly every Wednesday afternoon between 2:30pm and 5:30pm and before the Senate also on Wednesdays from 10:00am to 12:00pm. These changes took effect from March 23, 2023.

Furthermore, there have been amendments to the Standing Orders to reduce the response time by Cabinet Secretaries. Cabinet Secretaries will now respond to questions within 14 days which is a reduction from the previous 30 days. They will also be required to respond to urgent questions within 48 hours and not 3 days as was the case initially. Cabinet Secretaries are also now required to provide physical and electronic copies of their reply at least a day before appearing before the house.

Previously, Cabinet Secretaries only appeared before committees to respond to questions emanating from statements, petitions and questions tabled in plenary by Members on various issues of public interest. The committees would then compile the responses into findings or reports and present them before the House. The Constitution of Kenya under Article 153 expressly provides that Cabinet Secretaries are to appear before committees which was the practice to date. However, this often resulted into MPs accusing the chairpersons of the various committees of delaying the reports.

Hon. Najib Balala’s sentiments were drawn from the provisions of Article 153(2) of the Constitution of Kenya, 2010, albeit controversial. Kenya largely identifies as a Presidential system, although not an ideal model of it. This means that the principle of separation of powers forms an integral part of the country’s governance. In the current legal and Constitutional dispensation, Cabinet Secretaries are alien in the House. The only two visitors allowed into the house are the President when delivering the State of the Nation address and the Cabinet Secretary of Treasury when reading the Budget Policy Statement.

However, the proposed amendments have features of a Parliamentary system that allows Cabinet Secretaries into the House. This is to facilitate the MPs to ask questions to the Cabinet Secretaries which is not envisioned in the Constitution. The President opines that the amendments would only strengthen the oversight role of the legislature and hence breed the compliance of the executive with principles of leadership and integrity. Be that as it may, the Legislature’s oversight role, which is mostly misconstrued as a fault-finding exercise, should be in compliance with the law and hence the Constitution of Kenya,2010.

In as much as Hon. Balala in his tenure as a Cabinet Secretary instigated a pertinent question on the accountability of Cabinet Secretaries, attempts to remedy the same should not be a threat to Constitutional Stability. Parliamentarians are considered the amplifiers of the voice of the common mwananchi and therefore the will of the people is often housed in their opinion. Their say in pertinent issues such as implementation of policies and other functions of the Cabinet would be a seeming catalyst of good governance. Despite that, there is an obvious concern on the efficacy of the proposed amendments.

Despite the Constitution of Kenya, 2010 being lauded for entrenching accountability, there has been disquiet on the level of technocracy in the Kenyan Parliament. This, coupled with the political influence of the executive in the House has led to reduced quality of debate and consequently, oversight role of the Legislature. The political awareness of the electorate has also been a factor as primacy is not placed on the oversight role of the Members of Parliament but rather the utilization of the NG-CDF. This therefore means that there are several underlying issues affecting the potency of the oversight role of the legislature.

The amendments therefore leave more questions than it does answers. Will the amendments bring about any change? Are the amendments Constitutional? Is Kenya transitioning into a hybrid system of governance? If so, should it be at the expense of Constitutional stability? Is a Supreme Court advisory on the Constitutionality of the amendments needed?

Posted by Loise Mwakamba on March 30, 2023

Categories:  Oversight   standing orders   cabinet secretaries