LAW · LAWYERS · LAW MAKERS · LAW KEEPERS · LAW BREAKERS

I wish to differ with the vast majority of my fellow Kenyans and the country’s international friends who support National Assembly Speaker Kenneth Marende‘s ruling on the parliamentary business committee. I particularly wish to disagree with fellow lawyers, including the Law Society of Kenya, over the manner in which Mr Marende dealt with an issue of grave national and constitutional significance.

The Speaker abdicated his authority, shirked his responsibility and took the coward’s way out of the crisis. Unlike King Solomon, when he was asked to decide who the baby’s mother was, the Speaker was overcome by fear of the two mothers and, rather than pronounce a decision, he ran away with the baby and started raising it himself.

As the world waited for him to give the country direction on the National Accord’s operation, he set the stage for further confusion and more serious crises in the future. The serious confusion the Speaker has put this country in is what is the Executive authority of government. Instead of following the Constitution, he said this is a matter for the President and the Prime Minister to agree on.

A weighty matter

How can the Speaker subject such a weighty matter to the intention of two people? Can this be the intention of our Constitution? Is the will of President Kibaki and PM Odinga supreme to the Constitution?

There are three arms of government under the Constitution — the Executive, the Legislature and the Judiciary. An order of the Legislature is expressed by an Act of Parliament. Once such an Act is gazetted, the Executive and the Judiciary must recognise it as law of the land. No person can go behind the Act to find out if it was passed by the required quorum. So long as it is supported by a certificate from the Speaker, the President’s assent and the gazettement by the Attorney-General, it is not subject to any inquiry over procedure.

The Judiciary’s order is expressed by that of the High Court. So long as it bears the court’s seal and has appended to it the deputy registrar signature, no one can go behind the order to ask what procedure was used to arrive at it. A valid court order must be obeyed without question.

Mr Marende is suggesting that there is confusion as to how the Executive’s order is to be expressed. He is saying that the Speaker and other constitutional authorities can go behind the President’s seal to ask about the procedure followed to arriving at Executive decisions.

 

Speaker Marende
peruses a reference
book in his
office after giving
the verdict on
Tuesday. Below:
Mr Kimunya

But it is not clear why he is suggesting this. In the ruling, he says the appointment of the leader of Government Business is the Executive’s prerogative. This means that no one can question the Executive’s decision in this matter. It thus follows that as the Speaker, his duty is to inquire as to what the instrument is by which the Executive exercises its authority. For once this instrument is executed, then it has the same significance as an Act of Parliament or the Judiciary’s order.

This is the decision the Speaker ran away from. And he deliberately did so because he was scared of annoying either of the of the competing parties. But how can we operate a constitutional government when the Speaker does not know the constitutional instrument by which the Executive communicates with the Legislature?

It looks as though Mr Marende was deliberately playing ignorant. Since 2003, the Executive has been transmitting its decisions to the Speaker on many matters. When ministers were appointed in early 2003, how did the Executive communicate with the House over who the ministers were? When Finance minister Amos Kimunya was suspended and someone else put in charge, how did the Executive communicate this decision to the Speaker?

If during all those times the Speaker did not raise issues of the procedure the Executive was using to reach these decisions, it means that he was satisfied that the instrument placed before him by the Executive had enough constitutional mandate to express the Executive’s will. What is it that has changed now?

What is for sure is that members of the Executive are in a dispute as to how they should reach executive decisions. This is a totally different issue from the question of how the decisions are expressed to other organs of government. But these procedure disputes are not for the Speaker to resolve.

The Speaker reiterated that “the office of the Speaker of the National Assembly is singularly ill-equipped to advise on or determine for the Executive arm of government… how they shall run their affairs.” But this did not stop him from trying. One wonders why?

Having said that, he should have only inquired as to which of the two letters – that of President Kibaki and that of Mr Odinga – was the constitutional instrument by which the Executive conveys its will to the Speaker. All other questions are matters for the Judiciary.

And to underpin how much he has undermined our constitutional law, Mr Marende appointed himself the chair of the business committee. This is despite the fact that the House standing orders are very clear on how this chair is to be elected. The standing orders are also clear that the chairmanship of this committee is reserved for the Executive.

All these rules notwithstanding, the Speaker went ahead and appointed himself the chair. He ignored the House rules and the constitutional mandate to maintain separation of powers among the arms of government. It may have been be convenient, but it is illegal and unconstitutional. And I cannot understand why Kenyans should praise such a decision.

How do we cheer the derogation of our own Constitution? How can the blatant disregard of our laws be Solomonic wisdom? It may have averted a crisis for now, but the ruling will in future create greater problems for us.