Posted by: alpharwath | October 1, 2009

A strengthened Parliament or a rogue Parliament? The case of Kenya-Part 2

We continue with our historical perspectives building up to our thesis on whether we have a strengthened or a rogue parliament.

The 8th Parliament’s (1998 – 2002) reign was significant for the beginning of the autonomy of parliament from the dictatorial hands of the Executive that had reduced it to a rubber stamp over the years. Parliament enacted the Parliamentary Service Act of 2000 following a constitutional amendment in 1999. The Parliamentary Service Act made provision for the Parliamentary Service and for the establishment of the Parliamentary Service Commission that provides leadership and management to the Parliamentary Service employees[4]. Members of staff employed by the National Assembly were now employees of the Parliamentary Service and no longer answerable to the Civil Service.

The Local Government Transfer Fund Act 1998 was passed by the 8th Parliament. It provided for the Central government to supplement the revenue of local authorities across the country to run and manage certain local services, where the government provides funds to run constituency specific development projects, it being accepted that all the authorities revenue was inadequate. This act became a forerunner of the popular Constituency Development Fund (CDF), which has the same function.

Constitutional Reform debate began in earnest in the 1990s due to the level of dictatorship and the centralization of presidential power without any checks and balances. The numerous Constitutional amendments since 1963 eventually led to a weakened Parliament that had been emasculated by the Executive, a corrupt Judiciary, and gross violation of human rights.The Constitution of Kenya Review Act 2000 provided for the review of a new Kenya constitution. It set up a review Commission which oversaw the process, a Constituency Forum to collect the public’s vies and a National Constitutional Conferenc to debate and approve a final constitution.

Other notable milestones of the 8th Parliament included the acquisition of the County Hall and the Continental House buildings that are adjacent to the Main Parliament buildings, due to lack of operating space. The County Hall houses the offices of the Parliamentary Service Commission and also has a couple of committee rooms, staff offices and a large conference room. The Continental House was refurbished to house all MPs offices and includes a library, the research office, a member’s only health club, a restaurant, six committee rooms, a bookshop, a post office and extra parking[5].

The first coalition government was formed during the life of the 8th Parliament when NDP merged with KANU on March 18th 2002. The now defunct NDP members later resigned from Government to protest at the President Moi’s choice of Hon. Uhuru Kenyatta as the best presidential candidate to succeed him as he was serving his last term. President Moi later retired as MP for Baringo Central and made history as the longest serving Member of Parliament having served for 47 years.

The 8th Parliament played a significant role in institutionalizing the fight against corruption as well as in rejecting legislation they thought would not contribute to the fight against corruption. In December 1997, the Kenya Anti-Corruption Authority (KACA) was established following an amendment to The Prevention of Corruption Act Cap 65, Laws of Kenya. After a short while its first Director was dismissed for alleged incompetence.  Thereafter the entire Advisory Board resigned. KACA was reconstituted in 1999 with the appointment of a new Director and a new Advisory Board. On the 22nd December, 2000 the High Court of Kenya in a controversial decision ruled that the provisions establishing KACA under the Prevention of Corruption Act and especially those giving KACA the powers to investigate and prosecute cases were unconstitutional. Following the High Court ruling, the Government published the Constitution of Kenya (Amendment) Bill No-2 2001 which was intended to entrench KACA in the Constitution.  The Bill was rejected by Parliament.  Following the defeat of the Bill, the President directed that the Anti-Corruption Police Unit be established.

Related to anti-corruption was the tabling of the “List of Shame”. In 1998, Hon. Musikari Kombo chaired a Parliamentary Committee that produced a report known as the “Kombo Report” the appendix to which was the even more famously known “List of Shame”. The Kombo report borrowed heavily from the Public Accounts Committee and public Investments Committee Reports. The List of Shame read like a who-is-who in the government circles or linked to the government ministers and MPs. The eighth parliament, thanks to the combined strength of both Kanu and NDP legislators, opted to delete the list of shame from the report. When it was time to vote, most MPs either absented themselves or abstained from voting. The voting process was acrimonious with fistfights, accusations and name-calling.

View from the peaker's gallery

View from the peaker's gallery

The 9th Parliament was ushered in after the overwhelming victory of the NARC political coalition in the December 2002 elections. NARC came into power and Kenyans were polled by Gallup and described as the most optimistic people in the world due to the high expectations they placed on the new government. Indeed the new government began their work with earnest by implementing their promise of providing Free Primary Education, improving safety on the road by implementing traffic rules, setting up commissions of inquiry to look into mega scandals that had resulted in looting of funds and other violations of human rights, creating new ministries, commissions and offices such as the Ministry of Justice and Constitutional Affairs and the Office of the Permanent Secretary in charge of Governance and Ethics, promising a new constitution within 100 days.

Parliament’s first order of business was to increase their salaries and emoluments. The National Assembly Remuneration (Amendment) Act 2003 was enacted in April 2003 and given retrospective effect back to January 2003. It provided for the payment of enhanced salaries to members, housing, sitting and travel allowances, making of grants for vehicle purchases, obtaining of housing mortgages and other generous packages. This did not go down well with the public and continues to be condemned by the media.

One good piece of legislation that the 9th Parliament will be remembered for is The Constituency Development Fund Act 2003. This was an act of Parliament, which started as a private member’s bill proposed by Hon Muriuki Karue, the MP for Ol’Kalou provided that 2.5% of government revenue, which was collected, annually should be allocated to the 210 constituencies to be used on development projects. No enforceable guidelines on the application of the funds were established and the MP-led CDF committees, in many constituencies, have been accused of applying the funds on unworthy or partisan causes. The concept has turned out to be popular with the people as a replacement to “Harambees” (Public Collections) which had become a vehicle of corruption by leading politicians. A quick glance at the projects funded by Harambees and by CDF shows that the needs remain the same. These are Education, Health, Water and Infrastructure.

This parliament also passed crucial anti-corruption legislation including the Anti-Corruption and Economic Crimes Act 2003 and the Public Officer Ethics Act 2003. The Privatization Act 2005[6] is another important piece of legislation passed by the 9th Parliament.

A key activity that took up the bulk of Parliament’s energy between 2003 and 2005 was the Constitutional Review Process. Following the enactment of the Constitution of Kenya Review Act 2000, the Review Commission began collecting Kenyans views in 2001 and had come up with a draft constitution by October 2002. They then convened a National Constitutional Conference where all MPs were members and formed a third of all delegates. The President dissolved Parliament in accordance to the Constitution and in readiness for the General election. The Conference was suspended and only reconvened the following year at the beginning the NARC government’s administration.

The political divisions within the coalitions over what the Liberal Democratic Party (LDP) termed as broken promises by its National Alliance Party of Kenya partner (NAK) were escalating and had crept into the Constitutional Conference. Each faction disagreed on key constitutional issues including the composition and organization of Executive power[7] and on devolution[8]. The NAK faction withdrew from the Constitutional Conference while LDP stayed on.

A case filed by a section of the civil society obtained a court decision declaring sections of the Constitution of Kenya Review Act unconstitutional and ruling that the National Constitutional Conference was not a constituent assembly. As a result, the Draft Constitution prepared by the Conference could neither be received by Parliament nor submitted to referendum. The government initiated a series of consultations, the consensus talks, to iron out the contentious issues and agree a new draft. After many false starts, these talks culminated in the Draft Constitution due for a referendum vote on the 21st of November, 2005. LDP ran a national campaign against this draft, complete with the formation of a movement together with KANU dubbed the “Orange Democratic Movement”. Other interest groups like the Church and the Islamic Community had their own issues and also ran campaigns against the draft. There was a 54% voter turn out. 56.6% voted against the draft while 42.3% voted for it.

The divisions within government ran deep and President Kibaki dissolved the Cabinet after the referendum. He later sacked all the ministers allied to LDP and replaced them with Government friendly MPs.

Next post will look at the run up to the 2007 election and the the post election parliament

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[4] The Parliamentary Service Commission comprises three appointed and seven elected Members of Parliament: The Speaker as Chair, the Leader of Government Business and the Leader of the Official Opposition are the three appointed members. The ruling party has four out of the seven slots reserved for the elected members.

[5] The Main Parliament Building’s entrance was refurbished to accommodate the first MP on a wheel chair, Hon. Sammy Leshore, who was paralyzed by an assassin’s bullet.

[6] The Safaricom Initial Public Offer has brought to the fore the two year delay by the Treasury in operationalizing the Act. The Speaker of the National Assembly has instructed the Treasury to immediately embark on this, which starts with the creation of the Privatization Commission which oversees divestiture of public corporations in the country. Barely 24 hours after this directive, the Treasury contracted a Human Resource firm to recruit a Chief Executive for the Commission while it continued to open bids for Legal and Transaction Advisors for what is billed to be the biggest IPO in the country. (These events to place on the week of 20th – 24th August 2007.)

[7] LDP preferred a Parliamentary system with the President as the Head of State and the Prime minister as the Head of Government. NAK preferred a presidential system where the President was both Head of State and Government while the Prime Minister was the Leader of Government Business in Parliament.

[8] LDP preferred a system of devolution with multiple tires of government that had constitutional powers. NAK wanted a two-tier government, national and local, and promised to give the local unity some autonomy but the central government would still retain a lot of its current powers.

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Responses

  1. the eigth paliament destroyed all the notable milestones they had put up previously. nothing to cheer at by kenyans.


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