Before 2013, Kenya operated a presidential system with parliamentary features — the President presiding over a Cabinet consisting of ministers drawn from Parliament. Ministers were accountable to Parliament, though the President could freely dismiss them.

The Constitution of Kenya Review Commission proposed that ministers should not be MPs, and should be nominated by the Prime Minister and approved by Parliament. Public views had expressed support for more technically qualified ministers, and concern that MP/ministers neglected Parliament and their constituencies. These ideas survived through the second draft constitution by the Committee of Experts, which wanted ministers to also have relevant skills or qualifications.

So, when the MPs at Naivasha decided on a presidential rather than a parliamentary system, the change, as far as ministers were concerned, was not so dramatic. In most presidential systems, ministers (called Cabinet secretaries in the US, Mexico and the Philippines — and now in Kenya) are not MPs. They are accountable to the President, who appointed and can dismiss them. The MPs removed the requirement of relevant skills.

In the final Constitution, the CoE added that the President “exercises the executive authority of the Republic, with the assistance of the Deputy President and Cabinet Secretaries”. This puts a little more emphasis on the Cabinet than you would find in some other presidential constitutions (the US Constitution makes no mention of it and does not clearly mention what are today called cabinet secretaries). But the Kenyan Constitution also says that Cabinet Secretaries (CSs) are accountable to the President “for the exercise of their powers and the performance of their functions”.

In a well-functioning parliamentary system, there is considerable debate within the Cabinet (the body of ministers), more so than in presidential systems. Ministers in a parliamentary system are more important and influential than in the presidential, especially because they often have a considerable political base. They tend to be more political than their counterparts in presidential systems, who are often seen as more “technical”. Parliamentary system ministers, sitting in Parliament, have to answer questions, defend government policies and are generally more accountable to Parliament. Usually both they, and the head of government (Prime Minister), are in office because of Parliament’s support.

PRESIDENT’S CHOICE UNDER THE

CONSTITUTION

Formally, the choice of CS is that of the President. Realistically, politically, he must consult his Deputy, with whose community support — at least to some extent — he is in office. And the Constitution requires the “regional and ethnic diversity of the people of Kenya” must be reflected in the Executive. He must not discriminate in his choice because of any personal characteristic (though obviously he must be able to value political support).

He must not forget the principle that not more than two-thirds of the members of elective or appointive seats should be of the same gender. In fact, Justice Joseph Onguto decided in December 2016 “the President has acted in contravention of the Constitution in nominating, appointing and maintaining a Cabinet that does not meet the two-thirds gender requirement”. He suspended the ruling untill after the election.

The President has no other legal restriction. But he should bear in mind why he is free to choose: Not just political support but competence should be borne in mind.

Competence need not mean technical skills in the field. In fact, we can ask whether technical proficiency in a specific area of life is necessarily the best preparation for a related policy making role in government.

Almost certainly, political sense, common sense, and various other non-technical qualities, are just as necessary.

Technical expertise should come from the public servants in the ministry, both the generalists who should understand how government works, and the professionally qualified who understand the specific issues, including the history, the possibilities and the constraints. A CS who tries to push around civil servants in their own areas of expertise will encounter resistance.

PARLIAMENT AND CSs

Political acceptability is crucial. The last hurdle a CS has to go through is getting National Assembly approval. This process is introduced because CSs are not from Parliament. And it should ease relations with Parliament. Though it is the role of Parliament to scrutinise the work of government, it is not satisfactory if there is antagonism between them.

In the US, CSs are vetted by the relevant subject committee of Senate. Here they are vetted by an appointments committee of the National Assembly (the public are invited to submit comments). The committee does try to relate the candidate’s experience to the Ministry concerned, in a general way, but it clearly lacks capacity to consider technical competence in detail. But our MPs are mostly thrown out each election (this time 62%), so committees may not even be formed. Anyway, parliamentarians do not seem very focused on developing the sort of expertise that would enable them to inquire seriously into a CS nominee’s technical ability. Unspoken concerns are more likely to relate to political acceptability, including compliance with diversity requirements. It would be good if they also concentrated on integrity issues—and if the public supplied useful evidence if there is any doubt about that integrity. Unfortunately, the likelihood is that if MPs reject any it will be more because of some personal objection rather than a matter of principle. One remembers that MPs rejected Monica Juma mainly (it was reported) because she had objected to MPs “trooping to her office, seeking appointments and transfers for their people”. Such considerations aside, they are likely to rather tamely follow the President’s wishes. The law regulating parliamentary approval requires the committee to consider “a candidate’s academic credentials, professional training and experience, personal integrity and background”. This would support the idea that candidates must be presented for particular posts. A person is not just appointed CS but CS for….(a certain docket). This surely brings into question the assumption that if a CS is “shuffled” from one Ministry to another there is no need to seek fresh parliamentary approval. If a person was approved for, for example, Defence, why should they be assumed to be suitable for Education?

We lost question time with the 2010 Constitution. But CSs must still appear before a parliamentary committee if asked to answer questions on their responsibilities.

POWER TO DISMISS

The National Assembly may (after giving a CS a fair hearing) pass a resolution requiring the President to dismiss the CS. So there is some accountability to Parliament.

It is usually assumed that the President is otherwise free to sack or move CSs. But, rather remarkably, a South African High Court decided last year that the President could be required to explain why he had sacked a Minister (Pravin Gordhan, who served as Minister of Finance from 2009 until 2014 and again from 2015 to 2017 ). This case has not yet ended (at least President Jacob Zuma appealed), and the legal provisions involved are not identical to ours. But part of the reasoning was based on the Constitution. Zuma accepted that his decisions (including sacking ministers) must be rational. Would our President accept the same? Is this a reasonable rule? Would it also apply to reconstituting a Cabinet after an election?

FINAL REFLECTIONS

President Uhuru seems to call Cabinet meetings not quite once a month — more often than President Mwai Kibaki did. More often than Barack Obama did, too. But what sort of government collegiality has he developed if a large number of CSs are apparently not sure whether they have been sacked or not?

Why is the President adopting this peculiar incremental approach? Why not keep quiet until you have a full quiver? How committed to their jobs can those apparently in limbo be? Does he hope they might actually say “Clearly you don’t want me, I am going”? Does any of them have the courage to say, “I’m leaving”, if there is a silent vote of no confidence in their ability?

A last thought: The DPP has security of tenure to insulate him from government interference. If the President can tempt him to resign with the carrot of being CS, what has happened to his independence?

By JILL COTTRELL GHAI and YASH PAL GHAI