Wednesday, April 04, 2018

Do you want a rogue government?

The Ministry of Interior and Co-ordination of National Government is not an authority on the interpretation of the Constitution or the written law on citizenship and immigration. It is responsible for the enforcement of the written law, which may, on purely administrative questions, allow it to interpret the written law. But the Ministry has no jurisdiction whatsoever on the interpretation of the Constitution or the legitimacy of orders issued by competent courts. To suggest otherwise is foolhardy.

The Ministry's officials, especially its State officers, will almost always receive a good hearing from parliamentarians. The political reality is that the ruling party controls both the Executive and Parliament and, therefore, the parliamentarians of the ruling party are more likely to grant the Ministry's senior-most officials a sympathetic ear, especially when it discomfits the members of the opposition. However, Parliament's committees are not the right forum to canvas questions relating to the interpretation of the Constitution or the written law on citizenship and immigration. They are also not the right forum to parse the disinclination by Ministry officials to be served by court orders or to obey them once served.

In the sorry saga surrounding the arrest, detention, exiling and assault of Miguna Miguna, the Ministry has not covered itself in glory. Neither has Parliament. The ruling party's parliamentarians are fond of reminding judicial officers of the doctrine of separation of powers whenever Parliament and the Judiciary challenge each others' jurisdictions, but they are loath to do the same when it is clearly in the national interest to oversee the actions of the Executive. In Mr Miguna's case, the focus of the Committee on Administration and National Security of the National Assembly should not have allowed the Cabinet Secretary, his Principal Secretaries or the Inspector-General of Police to justify their decisions to ignore the orders of the High Court but should have held these State officers to account for their actions. In a brazenly partisan decision that will contribute to the further erosion of the authority of Parliament over the Executive, parliamentarians allowed the Ministry's officials to make public statements that, in any other light, would be strong proof of their perjury.

The ruling party has very right to ensure that it remains stronger than the opposition but its members in parliament have an constitutional and institutional obligation to ensure that Parliament never becomes the handmaiden of the Executive. It is not the responsibility of Parliament to rubber-stamp the actions of the Executive. Parliament's jurisdiction extends to overseeing these actions to ensure that they cohere with constitutional powers and where members of the Executive exceed those powers, to hold them to account. It is why Parliament has the power to summon State officials to appear before it and the power to impeach them if they endanger the constitutional order. In Mr Miguna's case, blind party loyalty has led Parliament to side with the Executive as it has taken a massive piss on the Constitution.

The consequences of this will reverberate far and wide. It is only a matter of time before Parliament itself takes constitutional liberties, if it hasn't already have, that jeopardise what little good governance is left. The contagion will spread to the Judiciary, constitutional commissions, independent offices, state corporations and county governments. Rights and fundamental freedoms will be weakened if not wholly trashed. Kenyans will pay the price and it won't be cheap. Parliament is supposed to reflect the aspirations of all Kenyans. It is hard to imagine that Kenyans want a rogue government at all.

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