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Antony Mwangi and Emeka-Mayaka Gekara

Crafters of the new Constitution thought strong institutions, not individuals, would be a panacea to our governance woes.

In line with this mantra they felt a Legislature that is wholly independent of the Executive would provide meaningful checks and balances and be stronger in their oversight role.

Ten years after the promulgation of the laws, a review shows the exact opposite.

A parliament that is too beholden on the Executive, weak on oversight and average on legislation.

Comparatively, former MPs have ranked the 12th Parliament as the worst-performing in history.

Narc-Kenya leader Martha Karua has consistently berated the National Assembly as lacking in intellectual rigour and poor record of legislation.

A recent survey by Mzalendo Trust indicated that 10 MPs have yet to speak on the floor of the House.

When the same Trust released a survey months after the 12 Parliament was sworn in, indicating majority MPs have not contributed in the House, an exasperated Speaker Justin Muturi remarked: “Over nine months down the line, a majority of them have no clue how they are required to behave in the Chamber and even at the committee level,” Speaker Muturi stated.

Adding: “Then you ask, who is oversighting who? The chair of a committee must assume the powers because they represent the Speaker in their committees.” 

As Kenyans mark 10 years since the enactment of the 2010 Constitution, there is a case for assessment on the performance and effectiveness of the National Assembly which was radically restructured under the new order.

Comparisons have been made to the highly vibrant 7th Parliament after the restoration of multi-party democracy pitting Opposition firebrands such as James Orengo, Anyang Nyongo, Mukhisa Kituyi, Kijana Wamalwa, George Paul Muite and Martha Karua against Kanu ministers such Musalia Mudavadi, Kalonzo Musyoka and Dalmas Otieno.

Karua has cited the 2007-2013 Parliament of the Grand Coalition government as the most productive.

Because of the rivalry between the Mwai Kibaki and Raila Odinga camps, Speaker Kenneth Marende could be thrust into a tight corner, resulting in his infamous Solomonic decisions.

“The 10 Parliament had a lot of work because it was entrusted to pass legislation to implement the Agenda Four reforms set out by the Kofi Annan mediation team as well as legislation that would lay ground for the enactment of the 2010 Constitution,” argues Karua who served as Justice Minister during the period.

Former Limuru MP George Nyanja who served in the 7th and 8th Parliaments said the current House has failed miserably because of the quality and motives of its leadership.

“The House is not as vibrant as during our days because MPs have no cause. Most of them came to Parliament to pursue money.

They have no regard for the electorate. During our time, we used to earn as little as Sh25,000,” said the former MP who was nick-named General Kaiyaba due to his fierce attacks on former President Moi.

“But I blame the electorate. People get the kind of leaders they deserve. Voters are also driven by money.”

Members of the 10 Parliament spear-headed processes that led to repeal of the independence constitution.

Among the key changes were the divorce of the Cabinet from the Legislature and creation of new posts such as Leader of Majority and Leader of Minority that were not in the independence Constitution.

The Speaker is an former official member without a vote.

Moreover, it created 47 new posts of women to boost women representation.

Under the 2010 Constitution, the President is barred from appointing members of Cabinet from the Legislature, a move aimed to ensure independence between the two arms of government.

The net effect is that Legislature was left the responsibility to oversight the Executive. And this has been the major challenge.

Handshake complication

Matters have been further complicated by the handshake between President Uhuru Kenyatta and Opposition chief Raila Odinga, which has turned MPs from the latter’s camp as defenders of government, effectively weakening robust Opposition.

Lack of independence from the Executive has been the biggest criticism for the new structure of the Legislature.

There has been the argument that though mandated to oversight the Executive, the current Parliament has been irredeemably unable to do so.

Parliament has been consistently accused of being an extension of the Executive. 

This partly attributable to the fact that a section of MPs has been thrust in the awkward situation where they must support the ruling coalition on whose ticket they were elected and oversight it at the same time.

And though the Constitution divorced the Executive from Parliament by ensuring ministers are appointed from outside the Legislature, Cabinet ministers have barely disguised their political activities.

And the recent purge of MPs associated  with Deputy President William Ruto from key House seats by the President helped to demonstrate the continued influence of the Executive on parliamentary activities.

There has also been constant friction between the Legislature and Judiciary.

But Homa Bay Town MP Peter Kaluma yesterday defended MPs against accusations that they had failed in their oversight mandate, especially after the Handshake.

“Parliaments under the old Constitution were antagonistic. And now that the President is not seeking re-election, the wall between the Opposition and government has been broken because of less animosity because of the handshake which has seen Opposition MPs occupy leadership of committees,” he told People Daily.

“Now Parliament is animated by itself and can oversight the Executive as anticipated by the Constitution. What is lacking is structures to give it independence over budget-making.”

Kiambaa MP Paul Koinange says that although parliament has achieved a lot under the current Constitution, lack of support by the judiciary, government bureaucracies and politics remain major obstacles to its successes in fulfilling its mandate.

“Despite Parliament enacting serious legislation, the judiciary has been used to interfere with the work by issuing orders against the legislature’s work,” said Koinange.

Political interests and unending politicking have also hampered the legislature’s work as most MPs work in the behest of their political parties.

“It’s hard to achieve what we aspire as a parliament as most of the MPs are involved in politics at the expense of their legislative work to represent and oversight,” Koinange lamented.

Improved governance

But Kitui Central MP Makali Mulu says that there has been a lot of interference from the executive, negating the tenets of the Constitution of independence and operating freely.

“Although there is nowhere in the world where the legislature has worked without the meddling from the executive, it is good if we are allowed to work on our own,” Mulu said in an interview.

Mulu is however convinced that parliament has lived to its billing in terms of oversight and budget making.

“There are concerns however over the slow implementation of recommendations emanating from the legislature.

“In terms of improving governance through legislation we have not achieved even 50 per cent since most of what that comes from parliament is not implemented.

There are a lot of obstacles that derail the work of parliament,” said Mulu.

Commentators have pointed to serious interference of the independence of the legislature owing to the fact that the head of state has the final say on what should be contained in a Bill.

Further, to reduce the level of influence of the executive over the legislative body and avoid additional abuses of power by the executive, Kenya sought to create a sharper separation of powers between the executive and legislative bodies by adopting a presidential system of government, whereby none of the members of the executive are part of the legislative body.

However, the Constitution gave the President sweeping powers to determine the direction a Bill has since he has to veto by assenting for it to become law.

During his reign, President Uhuru has refused to assent to key bills even after MPs had passed them. Key among those he declined to sign into law was the VAT amendment Bill contained in the Finance Bill of 2018.

President Uhuru proposed to cut by a half the 16 per cent VAT imposed on petroleum products, then announced a raft of austerity measures expected to save the government cash that financial year by returning the Bill with a memo for consideration.