- The Constitution does not say what criteria Parliament may use to refuse approval.
- I suggest it is up to Parliament to decide, within the parameters I have already suggested.
Image: FILE
The National Assembly’s task in considering the President’s nominees as Cabinet Secretaries has been attracting unusual attention. This is in the light, of course, of the “Gen Z” protests, and the President’s remarkable decision to sack almost all the Cabinet.
He really has seized the opportunity to get rid of those he did not want, and otherwise recycled a lot of old political faces. Not to mention neutralising the opposition by giving plum jobs to some of its members – yet again.
Can the old faces be recycled?
It is mystifying to see some lawyers suggesting that dismissed CSs are automatically debarred from future state office (CSs are “state officers”). The only provision about permanent exclusion is Article 75. It says “(3) a person who has been dismissed or otherwise removed from office for a contravention of the provisions mentioned in clause (2) is disqualified from holding any other State office”. Those provisions are basically issues of conflict between their personal interest and their public or official responsibility or “demeaning their office.”
Removing most other state officers would make it possible to consider the application of Article 75(3) because they can be removed only for certain reasons. But Presidents may dismiss any CS for any reason he or she chooses – or none. For example, because they can’t work with the person, have different political ideology, or simply can’t stand them. And they need not say why.
Some history
The origin of this type of provision is the US Constitution and the “advise and consent of the Senate” requirement. The responsibility was no doubt given to the Senate because there political “factions” were less common. States are equal in voting strength there – so is a balance to the House of Representatives. Senators may be older and more experienced politically than members of the other House. The minimum age for a Senator is 30, for a Congressperson 25. Members of the House of Representatives serve two-year terms but Senators serve six-year terms and only about one-third of the Senate is elected at any one time.
All the various drafts of constitutions for Kenya between 2002 and early 2010 provided for various appointments to be approved by one or other house of Parliament.
Our current system - as concerns CSs - is the result of the work of those self-serving politicians who changed our system to a sort of US style-one. They tried, unsuccessfully, to downgrade the Senate to the “lower house”, and left it with no role in approving appointments.
Under the Constitution various types of State Officers’ appointments must be approved by the National Assembly, including also the Inspector General of Police, diplomats, Principal Secretaries, independent office holders like the Auditor General, the Chief Justice and Deputy, and most members of independent commissions.
Sometimes these approvals are of the actions of the President, sometimes of other bodies.
What is the point?
MPs may feel some uncertainty about their roles in confirming appointments. On the one hand the Constitution tries to encourage disciplined political parties – including the risk of losing their seats if they do not toe the party line – but does this mean that they are supposed to meekly follow a party line when approving appointments of political appointees?
I suggest that the decision to use this device in the Kenyan context was motivated by three considerations:
- To bring an element of public participation to bear on these decisions;
- To form an element in the network of checks and balances that are an important aspect of accountability under the Constitution – to prevent wrong decisions being made;
- To protect the independence of independent offices.
It was surely not to allow MPs to reject people they disagree with, such as Monica Juma (as Secretary to the Cabinet in 2015), or the attempt to reject Sarah Serem as Ambassador (2018) - though particularly Rift Valley MPs rejected this vendetta effort.
The National Assembly is not intended to substitute its judgment for that of the primary decision-maker. Its role is to prevent something going wrong. It is surely not intended to endorse the decision if something is going wrong. Certainly it is not intended to rubberstamp decisions of the President just because he is the President, or because of party discipline. This would make the Constitution provisions pointless – indeed a sort of charade.
I believe MPs are there to bring to bear their own intelligence, experience and indeed moral conscience on these decisions, but also to take account of public opinion.
The Constitution does not say what criteria Parliament may use to refuse approval. I suggest it is up to Parliament to decide, within the parameters I have already suggested.
The Public Appointments (Parliamentary Approval) Act (s. 7) says the relevant issues are the procedure used to choose the nominee (not relevant really for CSs); legal requirements for the particular appointment, and the suitability of the individual nominee.
Arguably, this puts too much emphasis on the routine processes of appointment which are often conducted by bodies more experienced than Parliament. The Act seems to have been rather mechanically drafted.
But there are some situations that I believe might – or should – justify the National Assembly in rejecting a nomination that do not so easily fit under the Act criteria. (This is not a complete list).
Allegations of corruption
There may be nominees with unresolved allegations hanging over them. I am sure the reaction to this situation would be “a person is innocent until proved guilty.”
This is an entirely appropriate sentiment in the context of the criminal courts. But Parliament is not a court and they are not being asked to convict anyone of a crime when considering an appointment
Naturally there is concern about the possibility of false allegations being made to damage a political (or other) opponent. But where the basis of the doubts is, or in endorsed by, a formal and “respectable” body, like the courts of another country or our own EACC or Auditor General or Controller of Budget, I suggest the doubts should not be rejected as being “not proven”. We all know how hard it is to get “big fish” in corruption convicted, whether through further corrupt means or by diligent use of the delaying tactics the law may offer.
If such people are refused appointment, they are not being punished, they remain at liberty, free to work – just not to expose the government to public distrust.
Acceptability
Chapter Six of the Constitution on Integrity is designed to set high standards. For those not elected (which include Cabinet Secretaries –everyone except legislators) it says: “Authority assigned to a State officer is a public trust.” It must be exercised in accordance with the Constitution, and in a way that demonstrates respect for the people, brings honour to the nation and dignity to the office, and promotes public confidence in the integrity of the office.
I suggest that the National Assembly is entitled – even required by the Constitution – to consider factors other than the competence of the individual, and even corruption allegations.
First: is the person acceptable to the people of Kenya? These individuals are nominated for leadership positions. If a very large section of the people would reject that person (not for reasons of prejudice, thus violating Article 27of the Constitution on discrimination) I suggest it is not right to endorse the appointment.
I suggest that “bringing honour to the nation” involves Parliament considering whether an appointee will enhance our reputation overseas. It is most relevant for the CS Foreign Affairs maybe, but most other CSs deal with other countries. Of course we appoint CSs primarily for the benefit of Kenya and Kenyans – but if a particular appointment would cast doubt on our commitment to international peace, to human rights, or to honest government does it make sense to proceed with it?