Sekou Owino: The constitutional questions in budgeting in the USA and Kenya

The current public debates on the 2023 Finance Bill in Kenya are taking place against the backdrop of somewhat similar debates that recently took place in the United States of America on the debt ceiling. 

In Kenya's case, the Parliament is considering a budget Bill through which the Executive arm of government seeks to raise revenue for the operations of the entire government for the next fiscal year. In the US, the bicameral parliament (the House of Representatives and the Senate) has been involved in discussions with the President as head of the Executive branch on the proposal to raise the debt ceiling.

In Kenya, the issue is more of an Executive undertaking, with Parliament playing and acting as if it has a salutary role to play in passing the bills as presented. Some parliamentarians and members of the Executive seem to be reading from the same script: That the Bill must be passed to ensure that the Executive (erroneously called "government" in Kenya) has its way.

There was a collective sigh of relief in the US and around the world when the impasse between Congress and the executive over the debt ceiling was resolved. This was particularly risky because the Treasury Secretary had warned that the US risked defaulting on its debts if the limit on how much the executive could borrow was not raised by the end of last month.

The legal issue was that in the United States, and even in Kenya, the power to raise and spend money is primarily vested in Parliament, even though the role of making spending proposals lies with the executive. In other words, Parliament authorises the raising of money and the Treasury, a department of the Executive, oversees its use.

In this case, Congress (especially the House of Representatives) was reluctant to raise the debt ceiling unless it extracted concessions from the executive in the form of reduced spending.

Their argument, and rightly so, was that agreeing to all of the executive's spending plans would lead to waste. As this standoff continued so close to the deadline, markets both in the US and internationally became nervous about what it would mean if the US defaulted on its debt. Added to this was the fact that the control of the executive in the USA and one branch of the legislature, that is the House of Representatives, are held by different political parties. This led to ideological differences over the priorities for spending public money.

In the end, the Speaker of the House of Representatives held several meetings with the President, Joe Biden, and an agreement was reached. This agreement forced some spending cuts in President Biden's proposed budget for the year 2024.

An interesting part of the deal was that there would be spending caps for the next two years. This was to keep non-defence spending flat over that period, and to limit the increase in the federal government's budget to no more than one per cent over that period.

The deal also reduced the amounts that could be proposed for spending on social welfare programmes, particularly the Supplemental Nutrition Assistance Program, also known as food stamps. Within the agreed legislation, a Republican pet project on energy was included as part of the compromise.

In short, what others might describe as a dangerous impasse of political posturing is actually the exercise of constitutional functions. It shows each of the political branches of government claiming their respective roles as intended by the separation of powers.

The president, as the executive, generates the budget proposals and financial initiatives to run the country, and Congress, as the holder of the purse, insists that tax and spending initiatives are for the general good of the country rather than the ideological pet projects of the executive. 

To lovers of order and authoritarianism, the fact that the branches of government disagree, especially when the legislature pushes back against executive initiatives, looks like disharmonious politics that is bad for the country.  Many would prefer the parliament to agree with the executive on everything. But that is not the way of a constitutional republic.

This was an example of the doctrine of the separation of powers working at its best and as intended. It is based on the time-tested principle that by scrutinising the actions and functions of the executive, parliament promotes accountability in that branch of government, which can otherwise be dangerous if left unchecked.

At its core, the doctrine of the separation of powers works best when it is recognised that the executive bears the sword of the nation, while the legislature controls the nation's purse and the judiciary referees their interaction with the citizenry.  A second component of this is that these branches of government are co-equal and there is no hierarchy between them.

Thus, although the judiciary is often referred to as the "least dangerous" branch of government, it is constitutionally co-equal with the other branches. Within these pages of the doctrine of the separation of powers lies the foundation of modern republican constitutionalism: That no single arm is government, and that government cannot exist or stand without all three. 

Thus, the Speaker of the House of Representatives was not constitutionally obstructing the executive's initiatives, but fulfilling the accountability role given to that Congress as an arm of government, ensuring that the public purse is used to best effect and that the legislature's power to tax is not taken for granted.

Even in the Westminster model of government, where a Prime Minister, as an elected MP, holds both executive and legislative office, Parliament's refusal to approve spending proposals in a budget can be a precursor to a vote of no confidence in the executive. So the budget is carefully negotiated.

The lesson here, it seems to me, is that in Kenya the legislature appears to have abdicated its role in overseeing the use of the public purse and the power of taxation, or to have abdicated it altogether, because it rarely, if ever, challenges the executive's proposals in the budget, except where it affects their salaries and allowances.

The same seems to be the case in the current budget debates, where parliamentarians on the majority side are taking cues from the executive on how to exercise their constitutional role of managing taxation and expenditure of public funds.

In short, the recent example of the negotiations in the US between the President and the Speaker of the House of Representatives is just one indication that the tensions and differences may be raising the political temperature, but they are demonstrating that the Constitution is working optimally, with each branch of government playing its intended role.

True, to political purists who worship harmony and order for its own sake, such engagements may seem politically belated. But the lesson is that, in a democracy, the three arms of government must interact civilly without abandoning their role of checking each other, each must exercise its functions without being assimilated by the others, and, not least, each must uphold its side of the constitution without abandoning its role.

In this exchange, the public's anxiety is to be expected, but it is better than the efficiency of authoritarianism.