A boisterous black cat that waltzed into the Kenyan Parliament on December 7, 2018 brings to mind the sagely words of the former Chinese reformist President Deng Xiaoping: “It doesn’t matter if a cat is black or white, so long as it catches mice.”
The uninvited guest from the feline world — considered a symbol of evil omen in some cultures and associated with good luck and prosperity in others — may have provided a cathartic release and comedy.
But it is a parliament rapidly losing its moral shine that is bothering the Kenyan public. Parliaments are everywhere losing their moral glow, becoming associated with the return of dictatorship.
In an October 2006 article, Simon Jenkins satirised the British House of Commons as “God’s Gift to dictatorship”.
Closer home, Bernard Amaya warned that parliamentary dictatorship is posing “a major threat to democracy” in Kenya (DN, 23/10/2014).
Parliamentary-based dictatorship is morphing into a salient feature of the worldwide democratic recession. Africa’s increasingly rogue parliaments are undermining the principle of separation of powers between the three arms of government.
In Kenya, as elsewhere, colonialism’s most enduring legacy on governance is what Martin Wight described as the two great principles of subordination: The subordination of the colonial executive to the imperial government and the subordination of the legislature to the colonial executive.
Kenya’s transition from colonialism to the post-colonial state based on a Westminster system of parliamentary government ended the direct subordination of the executive to Whitehall.
But the colonial-era subordination of the legislature to the executive continued under the one party state (1969-1992).
However, the fortunes of executive dictatorship waned as those of parliamentary authoritarianism soared under President Mwai Kibaki (2002-2013).
After 2013, the Parliament’s power is hoisted on two pillars. One is the 2010 Constitution, which delegates sovereign power to the legislature as one of the state organs.
The other is parliamentary privilege that grants legal immunity and protection to MPs against civil or criminal liability for actions done or statements made in the course of their legislative duties in Parliament.
In November 2018, Interior Cabinet Secretary Fred Matiang’i protested that some MPs are abusing parliamentary privilege to intimidate members of other arms of the Government.
Parliament is clashing with other arms of government at five levels. First, the executive, civil society and the public are resisting efforts by MPs to award themselves hefty perks.
With a salary and allowances amounting to over Sh1.2 million ($11,703), Kenya’s 416 legislators are already among the best paid in the world.
But at least twice, President Uhuru Kenyatta has told off legislators on their quest to enhance their perks.
Recently, legislators have locked horns with the executive over the Parliamentary Service Bill 2018, which seeks to provide a rent-free house, a government vehicle, an expanded medical cover, travel allowances and an expanded constituency outreach operation to 416 legislators.
On December 5, President Kenyatta said he will not sign the bill into law, but MPs are confident of garnering the two thirds majority needed to overturn a presidential objection memorandum.
Earlier on, in September, Parliament was on the war path over the president’s proposal on eight percent Value Added Tax on fuel. The House passed the proposal, albeit narrowly and acrimoniously.
The legislators’ push for perks comes against the backdrop of a debilitating wage bill. Kenya’s current wage bill stands at 53 percent of the national budget.
Earlier on in July 2017, the Salaries and Remuneration Commission moved to reduce the wage bill, announcing a significant salary cut for state officers, including the president, deputy president, MPs, Cabinet secretaries and other officials.
On November 23, 2018, the Commission rightly noted that the call by MPs for higher allowances would not only increase the burden of the taxpayer, but it would set an unsustainable precedent for public servants.
Second, the Senate, everywhere held as a check against the potentially excessive powers of a popularly elected Lower House, has itself faced the wrath of an all-powerful parliament.
In 2014, during the debate on the Division of Revenue Bill, Senate had to seek the intervention of the Supreme Court to assert its role in the budgetary process.
Third, MPs have clashed with the Council of Governors over the National Government Constituencies Development Fund (NG-CDF).
MPs control this fund which dedicates a minimum of 2.5 percent of all national government’s share of annual revenue to enhance grassroots development.
In February 2015 the High Court declared the CDF unconstitutional and directed Parliament to align the fund with the Supreme Law.
The generic jurisprudential problem with the CDF is that it violates the principle of separation of powers. Democracy dictates that one cannot make the law and implement it!
Fourth, Parliament is using its oversight and reporting role in ways that undermine the integrity of other arms of the State.
In a letter dated October 27, 2015, the then Chief Justice Willy Mutunga censured the National Assembly’s Public Accounts Committee (PAC) for the “needlessly abusive, inappropriate and intemperate language” as contained in some sections of its report.
Similarly, several senior government accounting officers have written to Parliament protesting against egregious inaccuracies and inappropriate language by the PAC’s recent report based on the Auditor-General’s 2014/15 analysis that incriminates several officers for audit queries.
With the introduction of live parliamentary broadcasts, some vocal lawmakers are exploiting the freedom of speech to make needlessly reckless statements and claims that undermine the integrity and independence of other arms of government, malign officers and mislead the public with utter impunity.
If untamed, Parliament will pose an existential threat to democracy and development.
Professor Peter Kagwanja is a former Government Adviser and currently the Chief Executive of Africa Policy Institute.