A rather depressing development after our recent change of government (and Parliament) was the scramble by political parties (to be precise Kenya Kwanza and Azimio) to control who was elected as Speaker, especially in the National Assembly but also in the Senate and county assemblies.

Why depressing? For two reasons.

One is that Parliament is supposed to be an institution with some independence of mind and action. And the other is that the role of the Speaker is – to my mind – not to guide (or worse) Parliament to do what the government (or anyone else) wants but to ensure that Parliament operates in an efficient and democratic way.

You might think of the Speaker as a sort of umpire, there to ensure that everyone has a fair chance to put forward their views.

ARE ALL SPEAKERS THE SAME?

The most marked difference is between the UK model and the United States model Speaker.

In the UK, the Speaker does come from among the MPs – so inevitably is a party member. But almost always that person is not someone who has held other high offices. Usually the person will come from the governing party. But once elected Speaker they are expected to behave impartially. They do not take a partisan position. In fact, their own constituency is rather neglected.

Not every speaker manages to stick to the rules. But the criticism of a recent UK Speaker for telling students how he voted in the referendum on Britain and the European Union underlines the expectation – strict neutrality, and silence about one’s own view.

American speakers are very different. Everyone knows the Speaker of the House of Representatives is a Democrat. And the Speaker of the US Senate is actually the Vice President of the country.

One account of the US House Speaker says, “They are the most visible and authoritative spokesperson for the majority party in the House.” And “speakers are often criticized as too partisan and too powerful, trampling minority party interests”.

It wasn’t designed this way – it’s just the way it is.  

KENYAN MODEL SPEAKER?

You might say that “Kenya adopted the US style of government, so presumably the US style of Speaker as well.”

Our Constitution says little about the role of the Speaker.  This is a bit surprising in a Constitution that often spells out responsibilities of individuals and institutions in detail. The provisions about the Speaker now are identical to those in the draft constitutions that provided for a parliamentary system – not a US style presidential one.

I suggest that the drafters of the Constitution intended that a Speaker would be similar to the existing practice. It says that a Speaker is to be chosen from someone who is not an MP. This is why Moses Wetang’ula resigned the Senate seat to which he had just been elected.

There are two possible reasons for this rule – which was in the previous constitution.

One is to avoid the situation where a constituency is neglected because its MP is elected Speaker (or the need for a by-election as used to happen under the pre-1969 Constitution). The second is to make it easier for the Speaker to be, and be perceived to be, non-partisan.

I believe that the existing idea – at least the ideal, if not the reality always – has been of an impartial Speaker.

In the days of President Moi, speakers were sometimes sacked (or even appointed) by the President rather than, or before, the MPs voting. This is something we have happily moved away from. But the independence of Parliament – a separate arm of government from the Executive – is built into the Constitution.

It is in fact better protected in our current presidential system – when the head of government and the ministers (Cabinet secretaries) do not come from Parliament or at least cannot stay in Parliament – than in a parliamentary system where the carrot of ministerial office is a powerful way to control or influence MPs.

Of course the Executive wants to control Parliament. The President wants his choices as CSs approved. He wants his budgets passed. And if he has any important laws passed he wants them approved without amendment and without resistance. And he does not want critical reports of pesky Auditors General endorsed by Parliament.

But it is Parliament’s job to scrutinise, resist, if necessary, and ensure that appointments, budgets, and laws meet constitutional, legal and common sense standards. It’s what we elect and pay them (excessively) for.

And the Speaker of the National Assembly is there to enable the House to do this.

The Speaker heads the Parliamentary Service Commission which exists to provide facilities and funnel finance to enable Parliament to do its work efficiently. As head of this branch of government he or she must uphold the standards and the honour of what is so ritually and unthinkingly called the august (not August) house – meaning the respected and distinguished house. The Speaker needs to liaise with other branches of government, and is the public face of Parliament, in Kenya and overseas.

Difficult issues often arise. It will not be easy to chair sessions about attempts to impeach state officers, and passions may run high in other situations.

The National Assembly published the Speaker’s rulings in the 12th Parliament. In the last full year there were 15. They concerned things such as the process of the counties considering the BBI proposals to amend the Constitution (through the popular initiative) including that some counties did not fully comply with procedures, and how the House would deal with that Bill. Also suspending an MP who had accused members of being “cowards, sell outs and traitors and in addition sycophants”, thus behaving in a way “not in keeping with the dignity of the House.”

There was also a ruling that public participation on the Health Laws (Amendment) Bill fell rather short because it lacked “a commentary or a record noting how the Committee considered the submissions it received, its views on those submissions and reasons for either agreeing or disagreeing with the submissions.

Unless this omission is remedied, the assumption by members of the public and non-members of the Committee shall remain that the public participation conducted by the Committee was a mere perfunctory exercise without any bearing on the final outcome of the Bill.”

Once concerned a petition to remove the Attorney General – which the House could not consider because there was no procedure for this in law. And in another, the Speaker ruled against a committee itself withdrawing a Bill that had been prepared because of a petition to Parliament.

Many of these are very long – like a court judgment.

Speaker Wetang’ula promised in his acceptance speech various measures for the benefit of MPs. Of more interest for the rest of us is perhaps his undertaking to improve the system for dealing with petitions from the public to Parliament. To “present petitions to public authorities” is a constitutional right (Article 37).

As a former senator, it is to be hoped that he will foster better relations between the National Assembly and the Senate. There is still a case before the courts about how relations between the two Houses are supposed to work when it comes to identifying legislation that affects the counties – which has to go to the Senate as well as the National Assembly. With this new Speaker, hopefully this issue may never arise again.

As a former Minority leader in the Senate, he must realise the importance of his impartiality. He did undertake to be impartial. Good. This must include being independent of government. Let us hope he recalls that this demanding, prestigious and extremely well-paid job that was his reward for supporting the President is about enabling the National Assembly to do its work effectively, with clear judgment and independence of mind, and in the interests of the sovereign people of Kenya.

The work of the Speaker (not just of the National Assembly but also of the Senate and county assemblies) is crucial in earning public trust in these law-making institutions.  

By JILL COTTRELL GHAI

This article was first published by the Star Newspaper via https://www.the-star.co.ke/siasa/2022-10-02-ghai-speakers-what-and-what-is-not-their-role/

Image: The Star Newspaper