Uhuru could be over-reaching his mandate in law making

What you need to know:

  • The President is within his constitutional powers to return Bills to Parliament and to seek consideration for his point of view.

The evolving relationship between the President and Parliament in the legislative process underlies last week’s media reports that the President’s intervention has led to a one-year reprieve for embattled senior officials of the Ethics and Anti-Corruption Commission, whose removal from office was included in a recent National Assembly Bill restructuring the commission.

When presented with the opportunity to assent to the Bill that proposed the removal of these officers, the President, concerned about a clause requiring their summary dismissal from office, suggested that the officers should instead be subjected to vetting within the year to determine whether they were suitable to remain in office.

While the Assembly was, in principle, unhappy with the President’s proposal for a one-year extension of the officers’ term in office, it was reportedly compelled to accept his proposals when it failed to raise a two-thirds majority required to override his objections.

The handling of the EACC Bill represents an increasingly dynamic relationship between the President and Parliament, in which the former has become progressively assertive in originating alternative legislative proposals when assenting to Bills.

As an example, the President rejected proposals that would have provided a pension for former Prime Minister Raila Odinga, and former Vice-President Kalonzo Musyoka, while assenting to the Retirement Benefits (Deputy President and Designated State Officers) Bill, 2015.

THREE OPTIONS

Under the Constitution, Parliament and the President share the legislative process, the former making laws to which the latter must assent if they are to come into force. When the President receives a Bill that has been passed by Parliament, he has three options. First, he can assent to the Bill, and must do so within 14 days.

Secondly, he can return the Bill to Parliament expressing reservations about its contents and asking that the reservations be addressed. Thirdly, the President can choose to ignore the Bill, and do nothing about it. If he ignores the Bill, it nevertheless automatically becomes law after the expiry of 14 days.

Formerly, Parliament had no control over what happened to Bills it had enacted once these were presented for presidential assent. Frequently, the President delayed in giving assent to Bills he did not like, thus creating uncertainty in the legislative process.

The discretion that the President had over Parliament in the law-making process was regarded as anomalous, and as one of the elements that contributed to an asymmetrical relationship between the two.

The law was amended, creating US-like arrangements where the President would now have a defined amount of time within which to assent to legislation, in default of which the legislation would become law automatically, or return it to Parliament with reservations. With minor variations, this procedure was carried intact into the new law.

While President Kibaki seldom questioned the contents of Bills when these were presented to him for assent, the emerging style of the current President creates expectations that he will return Bills to Parliament more frequently. While this communicates a more involved President than Kibaki was, it may also portray him as unduly controlling.

CONTESTED SPACE

Even though the President is within his constitutional powers to return Bills to Parliament and to seek consideration for his point of view, two issues must be borne in mind.

First, it is Parliament alone that makes the laws, as the new Constitution relieved the Executive of any role in the law-making process. However, when considering legislative proposals that have been presented to him for assent, the President has gone beyond expressing reservations, which he has a right to do, and descended into a more contested space of originating alternative legislative proposals of his own.

In the US, where Kenya borrowed the current arrangements from, some of the presidents have also faced accusations of straying into the law-making arena when presented with an opportunity to assent to legislation. One aspect of the presidential descent into the legislative arena is called the “line-item veto”, where the president vetoes specific items within a Bill, rather than the entire Bill.

To overcome its contested nature, President Bill Clinton got Congress to enact the Line Item Veto Act in 1996, formalising a power he claimed to reject individual items in proposed legislation. However, the US Supreme Court declared the Act unconstitutional, holding that because the Act allowed the President to unilaterally amend or repeal parts of duly enacted statutes by using line-item cancellations, it violated the Presentment Clause of the US Constitution.

If challenged in court, President Kenyatta’s increasingly robust counter-proposals may well turn out to be an over-reach of his constitutional responsibilities in the law-making process. Secondly, it is important to clarify the consequences of a presidential rejection of proposed legislation.

Where the President makes alternative suggestions to draft legislation, these do not become law unless Parliament specifically incorporates them into the Bill. Even if Parliament fails to raise the numbers to override his proposals, it still has to actually decide whether or not to accept the President’s suggestions into the Bill and if it does, must enact the Bill afresh.

If Parliament rejects the President’s proposals, but fails to get the numbers necessary to override him, the Bill as originally enacted, lapses and does not become law.

While awaiting verification of facts from the record of the debate on the EACC amendments, the suggestion that the President’s proposal for a one-year extension is now law cannot be correct unless the Assembly actually had a fresh enactment of the Bill in question, specifically incorporating the president’s suggestions.