“We the people” (in the Preamble), sovereignty of the people (Article 1) and the right to assemble and demonstrate (Article 37) have figured prominently in recent demonstrations. And obedience to court orders has been a recent demand – reflecting the principle of Rule of Law threaded through the Constitution (Preamble and Articles 10, 91, 131, 156, 238 and 259).
The Constitution should continue to provide a framework. You may have wondered about a few issues.
How can a President go?
A President may either voluntarily resign or may be removed by impeachment.
Impeachment is not easy - more difficult than the vote of no-confidence in the Prime Minister (or President) in some systems. That is about loss of political support and not some specific offence, and usually needs just a majority of all MPs to pass. It usually follows a coalition collapsing, or the PM losing confidence of their own party. A recent trend has been for the leader’s party to decide that they must go, leaving the real decision in the hands of the party, not Parliament. Australia, South Africa and the UK have been examples.
Impeachment often requires a high vote of one house of the parliament to prosecute the President or PM before the other house, and the Constitution specifies the grounds – such as violation of the Constitution. In Kenya one-third of the National Assembly must vote to impeach. There would then be a sort of trial before the Senate and the President would be removed if two-thirds of the Senate voted for removal after investigation.
What then? Whatever the cause of the President’s departure, an election is unlikely. The Deputy President takes over. If President Ruto resigned or was removed he would be replaced by Deputy President Gachagua. If this occurred before next February 8 (two and a half years before the next election), he would serve for the balance of the current term and then be eligible to be elected for just one more term. (If it happened after that date, he could be elected as President twice.)
If the DP also resigned? The Speaker would act, until a new President was elected, within 60 days, and installed, to serve as President until August 2027.
And the Cabinet?
Some people have suggested “Let’s get rid of the whole Cabinet.” There is no mechanism in our Constitution for doing that – unlike the South Africa Constitution whereby the National Assembly may pass a motion of no-confidence in the Cabinet, excluding the President.
Our President may sack any or all Cabinet Secretaries. But the National Assembly would have to do it one by one – by the process we saw operating in the recent case of the CS Agriculture, Mithika Linturi.
It is quite likely that any removal – of President or CS – would end up in court. Our courts have taken on cases brought by County Executive members sacked by Governors or Governors successfully impeached so why not CSs or “impeached” Presidents? Personally I am not sure they are right to take the CEC cases – or would be right to take any case of a CS dismissed by the President.
And Parliament?
MPs have come in for a lot of flak, not just from protesters. People have been saying things like “Dissolve Parliament,” “Back to the ballot box”.
Let’s be clear: no one has the power to decide to dissolve Parliament – a radical change from the old Constitution. Even Parliament cannot vote to dissolve itself. And no one can do what the French President and British Prime Minister did recently – called elections before the terms of their parliaments had ended. Kenyan general elections (of the whole Parliament) can be held only on the second Tuesday of August every five years.
An election might be held at a different time only if Parliament failed to enact legislation as directed by the Constitution and then by the courts, and then only if the Chief Justice tells the President to dissolve Parliament - the President must comply. But it did not work when Chief Justice Maraga “advised” President Uhuru to do so because of Parliament’s failure to enact laws ensuring the gender requirement is satisfied.
Individual MPs?
I admit to laughing at the news of MPs begging their constituents for forgiveness for voting for the Finance Bill. They are scared of having their property attacked or of being recalled as some communities are threatening to do.
The Constitution has two rather different conceptions of MPs. On one hand, it tries to produce a system of cohesive parties based on ideologies, and with discipline among MPs. On the other, it gives MPs an important role in approving certain decisions on which they are presumably intended to exercise independent judgement – such as approving certain appointments or the deployment of the military in some ways. It would be pointless to have MPs who voted like party sheep on these issues.
The Constitution has failed to achieve either vision – rather MPs and parties have failed to understand and respond to the challenges.
I strongly believe that MPs are not supposed to do just what their constituents want. Sometimes unpopular decisions must be made. And how can they know without a referendum what constituents believe on many issues? They are elected, certainly, to understand their constituencies and act in their interests and that of the nation. They are also elected to use their brains. Do they (many of them) do either?
Recall of MPs by their electorate is in the Constitution. MPs tried to make it impossible in the law they passed. That law was declared unconstitutional – for that reason. MPs never passed a revised law – thus being in violation of the Constitution and court orders.
Would a single vote be sufficient justification for recall? The Constitution does not say why they might be recalled. If those MPs were also those who abandoned the parties for which they were elected and basically shifted to Kenya Kwanza, would there be good grounds for recall – the MP not having done what voters had a right to expect? Cases would end up in court, which would have to decide as there is no detailed law
Can a passed Bill be ‘recalled’?
Bills are presented to Parliament only by a member or a committee; only they can withdraw it – and only before it has passed. Once it (or in this case the National Assembly alone) has passed it - on the Third Reading - Parliament has no more function. The Bill goes to the President.
Three things might happen then. If the President signs, the Bill becomes law – an Act – and is then published.
If the President does nothing for 14 days the Bill automatically becomes law (Article 115(6)).
But the President might send the Bill back to Parliament “for reconsideration”, without signing it. He is required to send a memorandum with “any reservations” about the Bill. Clearly he need not have explicit reservations; he could just say “I’m not signing.” This is what Ruto did. (The South African Constitution is different - their President must express reservations.)
The Constitution makes no distinction between bills the Government sponsors and those that emerge from Parliament itself.
Parliament then has various possibilities, under Article 115. It may change the Bill to meet the President’s reservations. The President has become a major player in the lawmaking process.
Parliament could pass the original Bill again by a two-thirds majority. Then the President would have to sign – Parliament would have forced him. They have never achieved this.
In the case of the Finance Bill, Parliament could approve the President’s memorandum, leaving the Bill with no content. Clearly the last is what is happening – reflecting what the President wants.
In my view, they could simply do nothing (though Article 115 is silent on this). Either way, the Bill cannot emerge in a changed version, or in its original version. So it must die.