Can Kenya’s Parliament order things to happen?

There is a bit of a tendency for people in government to think that governing means ordering people around. Have you ever read headlines or statements like these: “Senate Orders Immediate Halt to Fishing at Lake Nakuru” or “Kenya National Assembly directs BAK [Blockchain Association of Kenya] to prepare crypto bill”?

And have you wondered, “Does Parliament have the power to order things to be done like that?”

To be fair to Parliament, the language is often used by the media, rather than being taken from a parliamentary document. On the last example on crypto, at the end of the article (from “Forbes India”) you find: “The parliamentary committee requested BAK to draft and submit a bill for digital assets regulations within two months”.  Requested not directed.

But it’s not always the media’s usage. In a last year report of the Public Investments Committee on Commercial Affair and Energy on a report by the Auditor-General about certain parastatals, the committee “reprimanded” the relevant accounting officer and “directed” an organisation on some point. But someone - presumably the secretariat of the committee - headed these “Recommendations” only, correctly.

Does the constitution ever say Parliament can direct? And what can it do? We shall see that it has very little power to order any specific person to do or not to do something.

Law making

Most precise (you might think) is what the constitution says about law-making. Parliament (with public participation and with the assent of the President) may tell the people, and government, what to do, through legislating, as long as their law does not contradict the Constitution.

The National Assembly (NA) must pass any bill for it to become law (Article 109). If it concerns counties the Senate must also pass it (Article 110). (There are detailed provisions for dealing with disagreements between the houses). Unfortunately, the NA has repeatedly failed to play its part by involving the Senate, leading to the Senate suing the NA several times.

Parliament often includes in law the power to make regulations as the constitution allows (Article 94(6)) - often given to a Cabinet Secretary. Parliament usually requires the regulations to be presented to Parliament. Parliament may then decide that there is a problem because the regulations do something undesirable or illegal, and declare the regulations void (under the Statutory Instruments Act).

Finance

On financial matters there is a great deal of detail. Both houses are involved in the division of national revenue between the national and county governments. The NA must approve expenditure by the national government and national state organs (though too often it’s spend first, get approval later, under Article 223 on supplementary budgets). Eventually these decisions are in Acts passed by both houses (and signed by the President).

A few financial decisions are not included in Acts. Notably, once Parliament has approved the judiciary’s annual budget, the necessary money is to be paid directly into the Judiciary Fund - which is intended to support the independence of the Judiciary.

The NA is involved in the government’s annual budgeting process, which runs for much of the preceding financial year.

Oversight

Each house exercises “oversight” over certain matters, including the way national revenue is used (National Assembly) and the way it is used by counties (Senate). But the Supreme Court held that the Senate could oversee the use by counties of all revenue, even that raised by the counties themselves.

Oversight includes sometimes being involved in the removal of office holders. The NA may require the president to sack a CS. The Senate is involved in impeachment cases against governors. Both houses would be involved in the impeachment process for a president (or deputy, as we have seen).

Oversight includes receiving and considering reports, including the president’s report on “the progress made in fulfilling the international obligations of the Republic”. “Each commission and holder of an independent office” must report to Parliament, as well as to the president.

The Auditor-General must submit audit reports on government and public agencies to Parliament (or to county assemblies), which must consider them and “take appropriate action”.

What does “appropriate action” mean? The International Budget Partnership says, “According to best practice, PACs [Parliamentary Accounts Committees] will issue a report on its hearing, containing recommendations for the audited ministry, department, or agency to address unresolved audit findings. PACs are expected to recommend that Parliament adopt recommendations that either endorse the auditor’s findings or add new recommendations based on committee hearings.” This act of recommending does seem to be the practice of the Kenyan PAC.

Parliament may look into issues without any petition to do so, or any report that it must consider. Committees may carry out inquiries on their own initiative. Again, the outcome will be recommendations not directions.

Article 95(2) is unusual. It says that the NA “deliberates on and resolves issues of concern to the people”. “Deliberate on” maybe, but “resolve” is a different matter – how? It was introduced by the Committee of Experts in the very last months of the constitution-making process, but they don’t explain it in their final report.

Other powers

Appointments to certain offices require the approval of the NA - including those of CSs, Principal Secretaries, ambassadors, the holders of independent offices such as the Director of Public Prosecutions, the Chief Justice and Deputy and members of commissions.

The NA must approve certain uses of the Kenya Defence Forces and a declaration of war or a state of emergency.

The NA receives petitions from citizens through MPs. By early March, 106 had been submitted to this NA since 2022, including 41 still under consideration. This is another context in which the NA does not direct, but recommends courses of action. The Senate also receives petitions.

One or two of the vaguer issues include the role of Parliament to “represent the will of the people”, of the NA to represent the people and “special interests”, and of the Senate to represent and protect the interests of the counties.  These I suggest are not separate ¾ these responsibilities are carried out by doing the things these agencies have the power to do. In theory, I suppose, parliamentarians represent the will of the people by carrying out party manifestoes on the basis of which they were supposedly elected (but in reality, probably not). One must wonder how otherwise they are able to even know what the will of the people is.

You will notice that nothing I have said would validate the NG-CDF, Affirmative Action Fund or Senate Oversight Fund.

What can they order?

The Senate can stop certain constitutional measures connected with assisting a county government (Article 190) or end the suspension of a county government (Article 192).

Parliament has an internal disciplinary procedure under which it can penalise a member - perhaps by excluding them for some time.

It can exclude people from parliamentary premises - but only in exceptional circumstances and if the Speaker has ruled that there is good reason for exclusion (Article 118(2)).

There is a situation when Parliament can order people to undertake certain actions. Either House or a committee may require people to appear as witnesses before them (Article 125). In order to ensure that they appear, parliamentarians have the same powers as the High Court to enforce their appearance, and order documents to be produced.

This seems to mean that they do have the power to issue an arrest warrant for a governor for failing to respond to a summons, and to bring him or her before the House, and may also fine them. (Whether such enforcement is wise is a different matter). Incidentally, Parliamentarians gave themselves the power to fine as much as Sh500,000, while the High Court can fine up to Sh1,000 under Section 24 of the Civil Procedure Act. The court that said Parliament cannot direct the Inspector-General to arrest a particular person may have been right.