Why vetting presents Parliament with a chance to redeem itself

On August 27, 2010, Kenyans, through a referendum in a popular vote, enacted one of the most progressive constitutions not only in Africa but arguably in the world.

In it, Kenyans opted for a democratic republic with the government being elected every five years and a governance structure of a limited government where power is distributed rather than concentrated within the presidency.

In essence, there are three arms of government: the Executive, Legislature and Judiciary. Of the three, Parliament is constitutionally positioned to dominate the Executive in that the presidency is only given the power to persuade the legislature and not to dictate to it.

Parliament can also veto presidential power on legislation, appropriate money, approve major presidential appointments, and impeach and remove the president from office among other roles.

By dint of Article 152 of the constitution, the president can only appoint cabinet secretaries with the approval of Parliament. Undoubtedly, the aspiration of Kenyans was to create a responsive government that is open to scrutiny.

President William Ruto recently forwarded names of proposed cabinet secretaries to Parliament for vetting and approval or rejection by the National Assembly.

This past week, Kenyans have watched a fairly subdued National Assembly appointment committee go through the rigmarole of interviews that will guide and inform the said committee’s decision.

As expected, some have expressed disdain with one Twitter user urging the committee to move with speed and approve the nominees in a single sitting as the vetting is, according to him, “useless and nauseating”.

If Parliament exercised its mandate strictly in accordance with the constitution, such comments coated with disdain wouldn’t arise.

By dint of the provisions of Articles 93 and 94, Parliament only exercises its mandate in accordance with the constitution, represents the will and sovereignty of the people and is obligated to promote democratic governance.

Kenyans' aspirations

The task and obligation thus placed on the National Assembly members is an onerous one and must be exercised judiciously while taking into account the aspirations of Kenyans and the need to have in place a cabinet of people with integrity.

How to deal with nominees with pending corruption and or criminal cases in our courts of law calls for soul-searching and reflection.

Perhaps confronted with a similar challenge what would our iconic and most celebrated parliamentarians of yesteryears now departed — the likes of Martin Shikuku, Chelagat Mutai, George Anyona etc — have done in the circumstances?

Indeed, the Supreme Court recently pronounced itself on the leadership and integrity question under Chapter 6 of the constitution in Sonko v Clerk, County Assembly of Nairobi City & 11 others (Petition 11 (E008) of 2022) by stating that:-

“It bears mentioning in conclusion that Chapter Six of the constitution was not enacted in vain or for cosmetic reasons. The authority assigned to a state officer is a public trust to be exercised in a manner 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. It vests in the state officer the responsibility to serve the people, rather than the power to rule them.”

My view is that Parliament has already received enough bashing from the public, including cartoons depicting members as “mpigs” (a derogatory reference to the greed of MPs) vetting their fellow “mpigs”.

The vetting presents Parliament with a golden opportunity to redeem itself. Members must refuse to be tethered to their parties and or allow party loyalty to cloud their thinking. 

Objective

They must bear in mind that in a constitution such as ours, which embraces separation of powers, their decision must be objective and not partisan.

A precedent should be set for pronouncing vetting in Parliament as a process where public interest and promotion of good values take precedence over party loyalty.

Anything to the contrary will reduce Parliament to be a pawn of the Executive and make Kenyans more cynical towards legislators. In a moment like this, the National Assembly must be a guardian of public interest and good morals to prevent the country from drifting towards hell.

My dear colleagues, you are spoilt for choice on examples where legislators have deserted presidents in support of the public interest.

In 1974, congressional Republicans deserted their own president Richard Nixon, who was facing impeachment, when it became apparent that he was the architect of the Watergate scandal. He was forced to resign on August 9, 1974, to avoid the embarrassment of impeachment.

And in 1987, the US Senate, by a vote of 58 to 42, rejected President Ronald Reagan's nomination of Judge Robert H. Bork to the Supreme Court where the number of votes against the nomination and the margin of defeat was the largest for any such nominee in history. Senate Democrats called on Reagan not to follow through on his vow to propose another nominee as they stated that; "they will object to as much as they did to Robert H. Bork."

Arlen Spector a Republican and leader on the Judiciary Committee created his most important legacy by voting against Robert Bork.

In a show of defiance, President Reagan appointed Douglas Ginsburg but he was forced to withdraw his name from consideration before being formally nominated after his earlier marijuana use created further controversy.

Kenya’s Parliament must prove its independence and gain public confidence.

The writer is a Senior Counsel, former Law Society of Kenya chairman and current Nyamira senator.