The Executive

by Samuel Marete

Today’s discussion is pretty straightforward. It’s about The Executive, and the differences that we should expect to see if the new Constitution passes the referendum hurdle. The Executive is dealt with in Chapter 9 of the final draft, in 4 parts consisting of a total of 30 articles.

Note: Parliament shall consist of two houses: the Senate, whose representatives will be senators, and the National Assembly, whose representatives will be Members of the National Assembly. A quick mnemonic to remember this is: S +NA=P i.e. SNAP. The term Member of Parliament will thus mean either a Senator or a Member of the National Assembly.

The composition of the Executive

The Executive as a whole will consist of the President, the Deputy President, the Cabinet Ministers (to be called Cabinet Secretaries), Permanent Secretaries (to be called Principal Secretaries), the Attorney General and the Director of Public Prosecutions. In keeping with the trias politica (the doctrine of separation of powers between Executive, Legislature and Judiciary), none of the members of the Executive above can be Members of Parliament (i.e. either Senators or members of the National Assembly).

The President (Articles 131-132)

The President is to be the head of state, Commander-in-Chief of the armed forces (to be called the Kenya Defence Forces), and the Chairperson of the National Security Council. The Constitution assigns the President a number of duties, including:

1. Addressing each newly-opened Parliament
2. Address a special sitting of Parliament at at least once yearly. This seems to be modelled on the US “State of the Union” address. In fact, as we shall continue to see, our Constitution borrows heavily from the American model for democracy.
3. Chairing the Cabinet and directing and co-ordinating the functions of ministries and Government departments.
4. One of the perceived problems with our current system of government is that the President is too powerful. The initial COE draft proposed a Prime Minister who was to be the chair of the Cabinet, leaving the President in charge of executive appointments. The PSC draft changed this, proposing a powerful President, whose appointments must be approved by the National Assembly only (the Senate will not be involved in approving Presidential appointments). The final COE draft adopted this approach. Whether this is protection enough against a powerful President (for example in instances where the President’s party has an overwhelming Parliamentary majority) is less than clear. It is interesting to note that this also mirrors the American system, where cabinet secretaries are nominated by the President and approved by a simple majority of the Senate. As it is, under the terms of the final COE draft, the President will be able to appoint and dismiss a cross-section of state officials: the Secretary to the Cabinet, Cabinet Secretaries, the Principal Secretaries, the Attorney-General, the Director of Public Prosecution, the Controller of Budget, the Auditor-General, the Inspector General of the National Police Service, High Commissioners, Ambassadors, and Diplomatic and Consular representatives. Principal Secretaries must first be recommended to the President by the Public Service Commission. The Chief of the Kenya Defence Forces and the Director General of the National Intelligence Service are not listed here – in fact the Constitution seems rather vague on these.
5. Seemingly in the aftermath of post-election violence, the final COE draft makes it mandatory for the President to address the nation once every year on progress achieved in the realisation of national values (patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; good governance, integrity, transparency and accountability; and sustainable development).

Who can be President? (Article 137)

To be President, one must be a citizen by birth, must be qualified to stand for election as a Member of Parliament, must be nominated by a political party, and must be nominated by not fewer than two thousand voters from a majority of the counties (of which there are 47 in the current Constitution).

One cannot be nominated to be President if they owe allegiance to a foreign state, or if they hold any public office excepting the President, the Deputy President or a Member of Parliament.

Manner of election of the President (Articles 136,138,140)

Presidential elections are to be held every 5 years on the second Tuesday of August, on the same day as general elections for Members of Parliament (remember, that’s members of the National Assembly and the Senate). To be declared President, one must receive more than half of all the votes cast in the election, and at least 25% of the votes cast in more than half of the counties. If no-one wins an outright majority of this sort, the two candidates with the highest number of votes face off in a fresh election in 30 days.

If anyone has questions as to the validity of the Presidential election, they may file a petition in the Supreme Court to challenge the election of the President-elect within 7 days after the date of declaration of results. The Supreme Court must hear and determine the petition within 14 days from the date of its filing, and its decision shall be final; if it declares the election to be invalid a fresh election must be held within 60 days from the determination of the petition.

Term of office of President (Article 142)

A President may hold office for a maximum of two terms.

Vacancy in the office of President (Articles 144-146)

The office of President becomes vacant when the President dies, resigns in writing addressed to the Speaker of the National Assembly, is removed on grounds of incapacity, or is impeached. When the office of President becomes vacant, the Deputy President assumes office for the remainder of the President’s term. If the office of the Deputy President is vacant, the Speaker of the National Assembly acts as President for a maximum of 60 days from when the Presidency became vacant after which elections must be held.

The Deputy President (Article 147)

The Deputy President is the President’s principal assistant and deputises for the President.

Who can be Deputy President? (Article 148)

A candidate for the position of President nominates a Deputy President before the election. The Presidential candidate may nominate anybody qualified for election as President, although the nominee does not need to be nominated by two thousand voters from a majority of the counties as in the case of the Presidential candidate.

Manner of election of the Deputy President (Article 148)

If a Presidential candidate wins, his/her nominee for Deputy President becomes Deputy President.

Vacancy in the office of Deputy President (Articles 149-150)

The office of Deputy President becomes vacant when the Deputy President dies, resigns in writing addressed to the President, is removed on grounds of incapacity, or is impeached.

Term of office of Deputy President (Article 148)

A President may hold office for a maximum of two terms.

Cabinet Secretaries (Articles 152-153)

Cabinet Secretaries are appointed by the President with the approval of the National Assembly.

They will be collectively and individually accountable to the President for the exercise of their powers and the performance of their functions. Their role will be to attend before committees of the National Assembly or the Senate, when so required by these committees, to answer any questions concerning matters for which they are responsible. They will also provide Parliament with full and regular reports concerning matters under their control.

Cabinet Secretaries may be re-assigned or dismissed by the President. The President can also be forced by the National Assembly to dismiss a Cabinet Secretary through an impeachment-type process.

Principal Secretaries (Article 155)

Principal Secretaries are to have administrative charge over their Ministries/State Departments.

The Attorney-General (Article 156)

The Attorney-General (AG) will be the chief legal adviser to the Government and shall represent the national Government in court or in any other legal proceedings to which the national Government is a party, other than criminal proceedings. It is interesting to note that while the initial COE draft limited the AG’s term to  a 6-year non-renewable term, the PSC draft removed term limits on the A-G’s office, and the final COE draft has upheld this.

Next: The Legislature – Part I

Posted by Mzalendo Editor on May 4, 2010

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