Why Kenya scores poorly on officers’ vetting

One important change which the Constitution of Kenya 2010 heralded was the requirement that appointments by the President be approved by the National Assembly.

Though this was new in Kenya, the principle behind it is one that has been established, accepted and applied for a long time in republican democracies.

In such countries, it is intended to apply as an essential check on the President’s power of appointment of state officers within the Executive and Judiciary.

In the United States of America, this is known as the Senate’s constitutional role of advise and consent to the president’s appointments.

In Kenya’s case, the requirement for parliamentary approval was more poignant because it had a historical justification. The intention was to make a clear departure from the imperial presidency of the previous constitution under which the President had absolute power of appointment and even dismissal with regard to almost all offices in government.

CONTROL

Therefore, the intention in such a constitutional structure is to make the appointments of such officers a shared responsibility between the President and Parliament.

In Kenya, this has been given the colloquial of vetting of the president’s nominees before appointment.

Whichever way one looks at it, the vetting by Parliament of presidential nominees is a control mechanism meant to ensure that the appointing authority only nominates the best possible candidates.

The responsibility of the vetting authority (Parliament) is to establish matrices of ensuring that person nominated for any given role meets the formal qualification requirements but also exhibits suitability for the job in terms of established competence aside from paper qualifications and the requisite integrity.

KAVANAUGH

In doing this, Parliament as a body is second-guessing the President’s judgment to ensure that the person only carries the public approbation rather than the President’s personal approval.

A perfect example of this distinction was US President Donald Trump’s nomination of now Associate Justice Robert Kavanaugh to the Supreme Court last year.

Whereas President Trump was personally satisfied with the nomination and vouched for Justice Kavanaugh’s suitability, members of US Senate had misgivings and conducted their own vetting and inquiries to determine whether the president was right in nominating Justice Kavanaugh.

Though Justice Kavanaugh was eventually confirmed and took office as an Associate Justice of the Supreme Court, the Senate Judiciary Committee and the whole senate and rightly so, eventually conducted its own investigations before voting to confirm the appointment.

That is why there is a specific law in Kenya known as the Public appointments (Parliamentary Approval) Act.

APPROVAL

This law provides the procedural guidelines for vetting of persons whose appointment requires parliamentary approval.

In conducting the approval, Parliament is meant to operate firstly as a check on the executive and as an independent arm of government.

Therefore, whether or not the president is popular or has a party in control of Parliament, the rigour with which the vetting is to be conducted should not change.

The problem in Kenya is that Parliament has, despite the new constitutional dispensation, continued to act as an appendage of the executive and almost all nominees of the President get approval as a matter of course.

Even in the event of difference, this is more often between the parties rather than as a matter of principle irrespective of party affiliation.

DURATION

I have stated before in the pages of this newspaper that Kenya appears to have copied this institution of vetting merely in style without the substance.

The problem with the Kenyan version is that there does not appear to be the rigour that vetting requires so that important information which could be used never gets to the committees charged with the vetting.

In the US for example, the period from nomination to the conclusion of vetting is measured in months.

During this period, the nominee gets to meet the members of the committee even on an individual basis and to answer to their concerns.

In Kenya’s case, the imitation is so poor that nominees for Cabinet secretaries appear before the committee in a couple of hours and subsequently get approved for appointment.

This is compounded by instances where political parties hold caucuses among them to agree on approval of nominees.

The fruits of this style without substance and casual approach to an important governance institution like vetting by the National Assembly, for example, manifests itself in the conduct of and performance or non-performance of among others, cabinet secretaries, principal secretaries and now persons appointed as envoys in foreign stations.