Cabinet, Cabinet Secretaries and constitutional history

We have learned if the President does not want a CS impeached by the National Assembly, it won’t happen.

What is the place in government of the Cabinet and Cabinet Secretaries? Tracing the history of the constitutional provisions provides food for thought.

The Parliamentary Select Committee (I’ll call them the MPs) in 2010 radically changed the then Committee of Experts’ (CoE) draft Constitution from a basically parliamentary system of government (these days in about 70 countries around the world) to a presidential system – specifically based on the American.

“Cabinet” is a word you find in many countries and systems. But its role and place in the system of government differs a lot. In a presidential system like the American, it is a body of advisers but the real power is always with the President.

Cabinet government

In many parliamentary systems the phrase “cabinet government” is often used. Often all the members of the Cabinet must come from Parliament – as must the head of government, the Prime Minister. When first used in England in the eighteenth century “Prime Minister” was an insult implying that the person was trying to outdo the King. And the idea of that person being “first among equals” was also important – all the members of the Cabinet were Ministers, usually heading a department of government or “ministry”.

Those who produced drafts of a new Constitution for Kenya deliberately chose a parliamentary system intending to move away from the “Imperial Presidency” (a phrase Kibaki used a lot before he became President) to a more collective system.

The Canadian government says, “Cabinet government works through a process of compromise and consensus-building, which culminates in a Cabinet decision. Consultation among ministers, departments, and portfolios involved must precede the submission of a proposal to Cabinet by the responsible minister or ministers.”

The Constitution

Some of those provisions in the Constitution remain. “The national executive of the Republic comprises the President, the Deputy President and the rest of the Cabinet”. (The American Constitution does not even mention a Cabinet as such though it does envisage executive departments whose opinions (in writing) the President may seek).

Our Constitution says that “Cabinet Secretaries are accountable individually, and collectively, to the President for the exercise of their powers and the performance of their functions” but they are also accountable to Parliament and must attend parliamentary committees and answer questions on their responsibilities. And they must “provide Parliament with full and regular reports concerning matters under their control.” Does this actually happen?

Drafting history

The draft constitution that the MPs so radically changed had said Ministers were accountable individually, and collectively to Parliament (which should of course mean to the people). Being “collectively responsible” refers to the idea that the Cabinet accepts responsibility as a group and that even if they have disagreed internally, outside they must not dissent from the collective view. The Ministerial Code in the UK explains, “The principle of collective responsibility requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached.”

Our CSs do not always seem to respect this idea, and even disagree with others. Collective responsibility seems a dead letter.

“Individually responsible” traditionally implied more than the requirement to explain themselves, and also of risking dismissal, but also that a Minister would resign if something seriously wrong happened in the Ministry for which they are responsible. It did not mean that the Minister was personally at fault. Nowadays, with Ministries being enormous and complex, it is less expected that Ministers will feel obliged to resign if they are personally not at fault.

That individual responsibility did not mean that Parliament could sack a Minister. But the British Parliament could impeach a Minister or other high official – a process of prosecution by the House of Commons before the House of Lords. No Prime Minister has ever been impeached in the UK: the House of Commons could just vote out the PM and government by a simple majority, a vote of no-confidence. Impeachment is reckoned extinct in the UK but, of course, is very much alive in the US – and Kenya.

But the power of the Kenyan Parliament to get Ministers (CSs) removed was in every constitution draft. The Constitution of Kenya Review Commission (CKRC) draft said at least half of all National Assembly members could pass a vote of no-confidence in a Minister who must then be removed by the President.  A vote of no confidence would normally follow a debate in which reasons for dissatisfaction would be aired, but would not necessarily involve guilt for actions violating the Constitution or the criminal law, but might include incompetence, poor judgment, or departures from agreed policies

But after the MPs changed the system – something the CoE felt unable to reject – the CoE introduced the possibility of impeachment of a Minister – as we have recently seen.  Presumably this was to reflect the changed relationship between Parliament and Ministers (now called Cabinet Secretaries) who were no longer MPs. And the change reflects the power of Congress in the American Constitution. One assumes that the CoE felt that the President had the power to sack a CS, but that – as a sort of last resort – if the President failed to do this, the people’s representatives should be able to do it but only for grave wrongdoing. We have, of course, learned that if the President does not want a CS successfully impeached by the National Assembly, it won’t happen.

A relic of early drafts is the limit on the number of CSs. The original idea was for two reasons. First a fear that Presidents would – as in the past – use appointments as a way of buying the support of MPs. This is no longer an issue, though not having a “bloated” executive remains a factor.

The second reason was the sense that Minister-MPs had too much to do and neglected one or both responsibilities.

These considerations led drafters to include Ministers from outside Parliament. The 2002 CKRC draft required that MPs not be Ministers. The CoE’s second draft said up to 10 could be from outside Parliament provided they had relevant qualifications and had not stood unsuccessfully for election to the National or a county assembly at a recent election. An interesting provision. The MPs removed it.

Another provision that has not survived was in the Bomas draft and lasted until the CoE’s second draft. “The Cabinet shall meet at least once a month.” It was a victim of the MPs’ hatchet.

The Constitution gives specific functions to some CSs. Most relate to the CS for finance, and occasionally the CS responsible for the public service and CS relating to defence and security. In such a situation, the CS must exercise their own judgment. It would be wrong, for example, to do something that was based on inadequate consideration because the President had said “Do this.” Even more specific responsibilities are laid down in individual Acts of Parliament, and again should be carried out on the basis of the CS’s own assessment (advised by staff in the Ministry, of course).

Some early constitution drafts did include limited numbers of assistant ministers. But there was concern that they were used for patronage not to do a real job. Some had actually complained that theirs was a non-job. The MPs wanted them. But the CoE Final Report says they would “lead to a bloated government, contrary to the wishes of the public.” A court that said recently that there was a deliberate choice not to have them was clearly right. Now, of course, we have them – in the form of Chief Administrative Secretaries.

This all shows, I suggest, the reduction of the importance and power of the Cabinet and CSs.

As a practical matter, of course, we also see the centrality of political patronage, and debt-paying in how government is appointed and run, and accountability extracted – or not.

This article was first published by the Star Newspaper



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