We, the people of Kenya...EXERCISING our sovereign and inalienable right to determine the form of governance of our country...Preamble, Constitution of Kenya.
Even the People of Kenya are above the Constitution, as the Preamble to the Constitution demonstrates. It is the People of Kenya who gave themselves the Constitution in August 2010. The Constitution was not a gift from the Tenth Parliament or a concession from the Government of Kenya. We, the people, took a conscious decision at a referendum at which a majority of voters determined that what was drafted by the Committee of Experts satisfied our needs, properly delineated our rights and defined the obligations of the Government of Kenya.
Therefore, the declarations by Parliament that it is supreme, superior to the people who elected its members, is flat out wrong. It is why the constant battles of supremacy between the National Assembly and the Executive or the judiciary are deeply worrisome. It is not enough that the National assembly has failed to do its duty by performing the functions that are enumerated in the Constitution, but that it has now determined without reverting to the people who elected its members, that it must take a lead on all matters related to the governance of the country without so much as a by-your-leave from the voters.
The Nairobi Law Monthly in Issue No. 11 of December 2013 is quite right that a referendum is unwarranted at this time (A rogue Parliament, pp 30 - 33). Since 2005, Kenya has had two elections and two referenda which have taken a steep toll on the public finances. Especially the 2007 general election and its aftermath, the cost of elections has been particularly steep on the economy, slowing it down significantly between 2008 and 2011, calling for very expensive desperate measures to restore it to an even keel. Any calls by the National assembly to amend the Constitution by referendum in order to cement its supremacy in the pantheon of State organs is unwarranted and reckless.
Justin Muturi and Ekwee Ethuro, respectively the Speakers of the National Assembly and the Senate, and Aden Duale and Kithure Kindiki, respectively the Majority Leaders of the National Assembly and the Senate, have done the Jubilee government and, by extension, the people a great disservice by failing to honour their pledges in the Jubilee campaign manifesto to bring the people together and to forge a government free of rancour and disagreement. The past ten months of the Jubilee government have seen a litany of disagreements that have almost crippled the implementation of the Jubilee legislative agenda.
The ball was decisively set rolling by the quarrels over the Division of Revenue Act, 2013. If the National Assembly had not conspired with forces out to derail devolution over the proper amount to be allocated to the counties under the Division of Revenue Bill, devolution may have began its proper implementation without governors behaving like pigs at troughs. It is because of the lead taken by the National Assembly over the Division of Revenue Bill that a majority of ill-prepared, ill-equipped governors made financial proposals that belied their experience or expertise at governing. Their reading of the behaviour of Members of the National Assembly emboldened many governors to make provisions that went to self-aggrandizement rather than development of their counties.
The pattern of missteps and poor judgment has been replicated over the past ten months with the National Assembly refusing to accept that the assertiveness that had been a hallmark of parliamentary business during the life of the Tenth Parliament can no longer be exercised in light of the changed circumstances in which the Eleventh parliament finds itself. For instance, the members of the Cabinet are no longer members of Parliament; their presence before parliamentary committees is no longer a matter of course. When parliamentary committees exercise their prerogative of summoning persons to be examined before them , this prerogative cannot be exercised without taking into consideration that the business of the national Executive will not come to an end simply because a parliamentary committee is seized a matter it considers of national importance. Consideration must be given for the time wasted by key decision makers when they are away from their desks attending parliamentary committee sessions. The same is obviously true of constitutional commissions and independent offices.
Parliament, especially the National Assembly, must devote its mind to its core business, that of making laws. At the same time, as the principle tool of the people for ensuring transparency and accountability of the government for the people, it must only act in the people's interest when it is warranted. It must act as the investigator of the last resort. It must, for example, only poke into procurement decisions of State organs when institutions such as the National Police Service, the Ethics and Anticorruption Commission or the Public Procurement and Oversight Authority have failed to do their duty or it is suspected that they have performed their duty in an improper or unconstitutional manner. If the Judiciary is seized of the matter, Parliament must give the Judiciary the time and space to complete its adjudication of the matter before it inserts itself in the matter. Parliament must restrain itself from intervening like a nosy neighbour every time there is a dispute in a neighbour's home, without offering concrete solutions but instead muddying the waters further.
The people chose the Members of Parliament. But the people did not endorse every crackpot scheme the Members of Parliament come up with to finagle more perks out of the National Treasury or conspiracy the same members engage in to assume more power than the people intended. If Parliament, particularly the National Assembly, continues to assert powers it does not possess, the Jubilee government may never get to fulfill the promises it made to the people while its candidates were out on the stump. Because of Parliament, the Jubilee government may go down in history as the worst government. Ever.