By Walter Khobe
Article 115 of the Constitution as read with Standing Orders No. 62 and 154 of the National Assembly Standing Orders has been the subject of intense debate in Kenya in the months of September and October 2018 owing to the implication of that provision to the constitutionality of the Finance Act 2018.
On 30th August 2018, the National Assembly passed the Finance Bill, 2018. Thereafter, the Bill was presented for assent to the President in accordance with the Constitution. However, the President, by way of a Memorandum, referred the Bill back to parliament for reconsideration, pursuant to the provisions of Article 115(1)(b) of the Constitution. The President expressed reservations on among others: the Value Added Tax on petroleum products, Excise Duty imposed on sugar confectionery and fees charged for money transfer service, contributory scheme to the National Housing Development Fund to enable access to affordable housing, and anti-adulteration levy to be charged on kerosene imported into the country for home use.
The implication of the reservations by the President if approved by parliament, as they were eventually approved, has been to increase the cost of living leading to a national outcry. In the run-up to the National Assembly’s debate on the President’s Memorandum, a question arose as to whether members of parliament can override the President’s legislative proposals. This question brings into focus the interpretation and ramifications of Article 115(4) as read with article 94 of the Constitution.
The National Assembly’s speaker Justin B. Muturi’s interpretation of Article 115(4) of the Constitution as codified in Standing Order No. 154 is that:
That, in submitting his reservations on a Bill to the House, the President is not prohibited from including his preferred text of the particular clause, section, subsection or paragraph of the Bill;
That, just like amendments to Bills, the text proposed by the President on a Bill need to be subjected to the other stages subjected to a Bill upon publication.
That, any committee of member of the House is free to propose further amendments to the presidential recommendations, so long as such amendments have the effect of fully accommodating the Presidents reservations, the voting threshold for such amendment. Any other proposed amendment that does not fully accommodate the reservations, or, indeed, is a total override of the Presidents reservation, would attract the two-third requirement.
That, the absence of, at least, two-thirds majority at the time of putting the question does not, in any way, imply the House is improperly constituted.
The implication of this interpretation is that it suggests that through article 115(4) the President can legislative with a minority of a third of the members of parliament. This strikes at and diminishes the legislative authority vested in parliament and consequently appears to violate the principle of democratic governance enshrined in article 10 of the Constitution.
I baptise this phenomenon brought by article 115 of the constitution: “presidentialization of democratic politics”. It depicts a move away from parliamentary (democratic) oversight of the President to a dominant President within the constitutional system without changing the formal vesting of legislative authority in the legislature as evident in article 94 of the Constitution. Essentially, this phenomenon affects democratic governance in two ways: it shifts power from the legislature to the President, and it grants the President a large zone of autonomy to decide questions of policy without taking the legislature into account. Thus a regime type that depicts these twin characters would qualify for the label “presidentialization of democratic politics”.
Due to the hyper-presidential nature of this role that 115 of the Constitution seems to confer on the President, the interpretation of this provision has been presented before the High Court. With the High Court in all the three instances endorsing the interpretation by the speaker J.B. Muturi.
In Nation Media Group Limited & 6 others v Attorney General & 9 others  eKLR, the High Court (Justices Isaac Lenaola (As he then was), Mumbi Ngugi, and Weldon Korir) held thus:
“The question that we must grapple with in light of these contentions is: how, exactly, is the President required to express his reservations in respect of a Bill placed before him for assent? Does pointing out what he sees as problematic with specific provisions in the Bill, and making suggestions and recommendations in respect thereto, amount to usurpation of the legislative role of Parliament and therefore a violation of the Constitution?
The Constitution does not define the word ‘reservations.’ However, the Concise Oxford English Dictionary, 12th Edition at page 1223 defines “reservation” as “a qualification or expression of doubt attached to a statement or claim.”
It seems to us that the petitioners have ascribed a very narrow meaning to the term, which, with respect, we do not believe is in accord with the Constitution. It will be noted that Article 115 uses phrases such “noting any reservations that the President has concerning the Bill” (Article 115(1)(b); “in light of the President’s reservations“ (115(2)(a); fully accommodating the President’s reservations” (115(3)) and “after considering the President’s reservations”.
With all due respect to the petitioners, we must bear in mind the constitutional interpretation principles that require that we interpret constitutional provisions broadly so as to give effect to its provisions, and to promote the purposes, values and principles of the Constitution. To give the provisions of Article 115 the very narrow meaning that the petitioners contend it has would render its provisions meaningless. In our view, the reservations by the President under section 115 must entail such recommendations and observations pertaining to specific provisions of the Bills presented to him for assent as he deems merit consideration by the National Assembly.
To hold otherwise, to expect the President to, as it were, simply state “I have reservations about this Bill”, without more, would be to leave the legislature guessing, casting about, trying to figure out what the President has reservations about. There would be nothing for the legislature to consider, or accommodate, or reject. In sum, there would be no point to Article 115 of the Constitution.
On the material before us, we take the view that the President properly exercised his constitutional mandate as is vested in his office under Article 115. We are also satisfied that the National Assembly acted in accordance with the provisions of the said Article. The National Assembly sent the Kenya Information and Communications (Amendment) Bill to the President for assent. The President considered it, expressed his reservations or doubts regarding certain provisions of the Bill, and then made various recommendations with regard thereto.
The Memorandum of Refusal was placed before the National Assembly as required under Article 115 (1) (b) of the Constitution. Parliament exercised its discretion as stipulated under Article 115 (2) (a). It amended the Bill “fully accommodating” the President’s reservations as provided under Article 115(3) of the Constitution. We are therefore unable to find that the President or the National Assembly acted in violation of the Constitution, or that the President in any way acted in excess of his powers and usurped the legislative powers of the National Assembly.
In light of our findings set out above regarding the process of enactment of the two impugned Acts, which we are satisfied was constitutional, we can now turn to consider the specific provisions of the legislation which the petitioners allege violate or threaten to violate their constitutional rights.”
Similarly, in Pevans East Africa Limited & another v Chairman Betting Control and Licensing Board & 7 others  eKLR, Justice Mativo held thus:
“My understanding is that this reservation is a clear statement of the president’s objections, giving a reasoned justification for the exercise of the refusing to assent to the Bill. The statement also gives the president an opportunity to lay out precisely what is wrong with the bill and to specify how the bill could be improved. In this way, the veto power also becomes—albeit indirectly—an agenda setting power through which the president is able to exercise political leadership, to define policy stances to the electorate and to put political pressure on legislators.
The constitutional power of the President to state what is wrong with the Bill can be done without making recommendations or proposals to Parliament to avoid the danger of being perceived to be descending to the legislative arena which is a function of Parliament. However, to the extent that Members of Parliament have the Constitutional safeguard and freedom of rejecting the recommendations, I find that it would be unsafe to conclude that they were influenced by the President’ proposal. The doctrine of presumption of Constitutionality of an act of Parliament leaves the burden upon the person alleging the undue influence to prove so. Mere suspicion is not enough to persuade a court to invalidate a legislation.”
This was also the stance of Justice Chacha Mwita in Transparency International (TI Kenya) v Attorney General & 2 others  eKLR
Has Article 115 Presidentialised Kenya’s Democracy?
As a regime type, postcolonial Africa’s tradition of absolute presidentialism was constitutionally installed in the 1960s – the first decade of African independence. It was the centerpiece of a series of constitutional and legislative changes introduced by postcolonial Africa’s new leaders soon after the dust of decolonization had settled. One-party rule, elimination of sub-national or quasi-federal structures, curtailment of judicial independence, subjection of the civil service to party control, and suppression of civil and political rights were some of the other legal and political changes that accompanied and, in many ways, propped up absolute presidentialism in the early years after independence. The prevalence in postcolonial Africa of this form of rule, in which practically every state institution is subordinated to the dictates of the president, has been largely responsible for the popularity among Africanist scholars of neo-patrimonial and other personalistic theories and accounts of politics and political phenomena in Africa (See H Kwasi Prempeh ‘Constitutional Autochthony and the Invention and Survival of “Absolute Presidentialism” in Postcolonial Africa’ in Günter Frankenberg (ed.) Order from Transfer: Comparative Constitutional Design and Legal Culture (Edward Elgar Publishing, Cheltenham, 2013)).
Beginning with the first post-independence government under Jomo Kenyatta, the politics of Kenya has been characterized by executive supremacy. This phenomenon, reached its height during Daniel Arap Moi‘s rule. Notably, parliament completely yielded to presidential initiative not only in matters of legislation but in virtually every area of public policy. Even where legislative decision-making was shared nominally with parliament, legislative initiative and agenda -setting, as well as bill drafting and amending powers, remained primarily the executive branch’s preserve. Rule by presidential diktat, often in the form of “directives” or “press releases” issued from the seat of the presidency, became a common mode of governing in post-colonial Kenya.
The quest for a new constitutional set up in Kenya was supposed to deal and tame this phenomenon of hyper-presidentialism. As has been pointed out by Joel Barkan, the institutional features necessary to balance power between the executive and legislature include: separating the legislature as an independent branch of government; a fixed term (no possibility of dissolution); absence of executive power to suspend the legislature; the possibility of passing legislation without assent of the president or overruling a presidential veto; powers to require testimony by the executive; the possibility for the legislature to set its own budget, to recruit and maintain its own staff; strengthening the legislature’s role in preparing the national budget; the management of constituency development funds and the manner of election. (See Joel Barkan, ‘Legislatures on the Rise?’Journal of Democracy Vol. 19, No. 2 (2008): 124). It was expected that the 2010 Constitution would embody these features identified by Barkan.
Article 115 of the 2010 Constitution thus raises the question of whether Kenyans failed in this quest, this is so because even though the presidency has been democratized and term-limited, the substantive power of the president has not been tamed or diminished with respect to legislative powers. Article 115 and its interpretation by the Speaker of the National Assembly and the High Court as retaining a hyper-presidential power seems to be a vindication of Thandika Mkandawire’s quip in ‘Crisis Management and the Making of ― Choiceless Democracies’ that: “Democratic states that are built on the ruins of authoritarian rule often retain some of the previous state’s institutions, which linger on due to social inertia and structural rigidities.”
It is noteworthy that article 115 as interpreted by the Speaker J.B. Muturi and the High Court implies a ruler with powers and prerogatives that are not subject to meaningful or credible institutional checks or restraint within the constitutional system. With the requirement that the President’s Memorandum can only be overridden with a super majority in the legislature, the actual use of parliamentary powers to amend bills or to exercise countervailing powers against the President becomes in effect only a theoretical option. Thus despite the drama that attended the end of the authoritarian pre-2010 era, in August 2010 was not quite the revolutionary moment it might have appeared to be; there was much less of a rupture or break with the pre-2010 practice than is commonly assumed. On the contrary, there are remarkable continuities, including, crucially, in the exercise of the Presidential powers vis a vis the legislative branch. In short, article 115 seems to imply that there is no legislative check on the legislative wishes of the President under Kenya’s 2010 Constitution.
It is arguable that despite attempts at entrenching a culture of constitutionalism (in the form of credible constitutional limits on executive power), Kenya’s post-2010 transition has at best injected a few (but nontrivial) democratizing reforms into an old order that remains in key respects unreconstructed. Progress in democratization thus coexists uneasily with the entrenchment of many of the “original sins” of Kenya’s pre-2010 dispensation, upon which the tradition of the imperial presidency was built in the early independence years almost a half-century ago. Thus the continuation of what Ali Mazrui called the “paradox of monarchical republicanism.” (See Ali Mazrui, ‘The Monarchical Tendency in African Political Culture’ (1967) 18 British Journal of Sociology 231).
Given the lack of effective legislative checks on the executive, it is still possible for the President in post-2010 Kenya to make and announce major policy/legislative decisions and policy/legislative changes without concurrence of parliament. This negates the quest to avoid the concentration of powers on the presidency that animated the search for the new constitution. To the extent that article 115 retains the making of a presidency who is not subject to credible institutional checks and restraint within the constitutional system, then it can be posited that it embodies presidential imperialism. (For a discussion of presidential imperialism in post-colonial Africa, see H. Kwasi Prempeh ‘Presidential Power in Comparative Perspective: The Puzzling Persistence of Imperial Presidency in Post-Authoritarian Africa’ (2007) 35(4) Hastings Constitutional law Quarterly 761)
However, any interpretation of article 115 of the Constitution should always bear in mind that the overarching goal of constitutional reforms in Kenya was to restore a more balanced separation of powers by taking measures to submit the president to stronger forms of control while strengthening and rationalizing parliament. It should be appreciated that the 2010 Constitution was enacted with ambitious aims. Post-war constitutionalism and the return to democracy in 1990s in Africa were considerable influence in the constitution making process. In fact, the 2010 Constitution encompasses not only civil and political rights and freedoms, but also a wide range of socioeconomic and collective rights with the commitment of changing the status quo. In this sense, the 2010 Constitution is a good example of a transformative constitution. On the one hand, it provides for constitutional provisions that entitle individuals to claim for judicial remedies in case of political inertia or bureaucratic dysfunctions. On the other hand, it imposes substantive limits on political decision making. Seen in this context, by adopting a presidential system of government, the 2010 constitution does not intend to create a weak President, rather it seeks to subject the President and the executive branch to greater legal constraints. Examples of other specific constraints include parliamentary approval of various appointments by the President, devolution of government, entrenched judicial review of executive actions, and the creation of independent commissions and offices to oversight the executive branch. (For a critique of separation of powers and constraint on the authority of the president in post-2010 Kenya, see Walter Khobe ‘The Judicial-Executive Relations in Post-2010 Kenya: Emerging Judicial Supremacy?’ in Fombad Charles (eds.) Separation of Powers in African Constitutionalism (Oxford University Press, 2016) pp. 286-299; See also: Walter Khobe ‘Separation of Powers in Judicial Enforcement of Governmental Ethics in Kenya and South Africa’ (2018) 3 Journal of Law and Ethics pp. 37-67).
Taking into account this historical context and purpose of the constitution, courts should develop a vision of the separation of powers that flexible rather than formalistic. In this conception advanced in this commentary, the separation of powers is linked to the underlying substantive values and principles of the constitution as provided in article 10 of the Constitution: such as the realization of democratic governance. Thus the courts should limit the concentration of power by the executive when such concentration of power threatens the attainment of the objective democratic governance. This becomes imperative as measures such taxation, which abridge the right to property, should ordinarily be determined through democratic debate in parliament, and not through unilateral action of the executive. It is a truism that in a democratic society founded on the sovereign will of the people, decisions that greatly impact the society should be adopted by the elected body where pluralistic discussion takes place and not by the executive. Therefore an interpretation of article 115 that concentrates power on the President therefore threatens the goal of democratic governance. (See Roberto Gargarella Latin America Constitutionalism, 1890-2010: The Engine Room of the Constitution (Oxford University Press, 2013) for the assertion that the maintenance and strengthening of an organization of power where authority is centralized in presidents -‘hyper-presidentialism’- jeopardizes people’s individual freedom and neutralizes or undermines the progress towards equality and citizenry empowerment that could be expected from an increase in the number of human rights recognized in a constitution.)
Furthermore, even beyond the Kenyan context, the evolution of constitutional government from the beginning of the nineteenth century to the post-war constitutions reveals a uniform trend toward the predominance of the legislature as the legal exponent of the popular will over the executive branch whose main function is that of executing the will of the people. In general, the post-war constitutions are animated by deep distrust of the executive whose powers are cut down in favor of a “pure” expression of the will of the people believed to be reflected best in multiple parties. Thus the hyper-presidentialism embodied in article 115 of the Constitution, as interpreted by parliament and the High court, is an aberration of global trends in constitutional democracies. (See generally: David Bilchitz and David Landau (eds.) The Evolution of the Separation of Powers: Between the Global North and the Global South (Edward Elgar Publishing, 2018).
The approach advanced in this commentary has been endorsed by the Colombian Constitutional Court in the landmark Decision C-097 of 2007, the court struck down paragraph 1 of Article 111 of Law 715 of 2001, where the Colombian Congress delegated power (including legislative power) to the president for six months to deal with “special situations”. The revered Justice Manuel Jose Cepeda Espinosa writing for a unanimous Court held that:
“In a democratic state the grand democratic political decisions correspond to the organ of popular representation and pluralistic deliberation, not to the executive. Grants of a blank cheque to the executive constitute a way to elude this democratic responsibility.”
(For more see: Ronald P. Archer & Mathew Soberg Shugart, ‘The Unrealized Potential of Presidential Dominance in Colombia’, in Scott Mainwaring & Mathew Soberg Shugart (eds.) Presidentialism and Democracy in Latin America (Cambridge University Press, 1997); See also Rodrigo Uprimny ‘The Constitutional Court and Control of Presidential Extraordinary Powers in Colombia’ (2003)10(4) Democratization pp. 46-69).
The Constitutional Court of Hungary in Decision No. 4 of 1993 similarly rendered itself thus:
“Any interpretation which would exclude the simple majority from deliberating according to its political considerations …would contradict the essence of parliamentarianism…..[The requirement of a two-thirds majority] would amount to a restriction which is unjustifiable in the case of a Constitution based on principles of parliamentarianism….The Court has consistently held that safeguarding the functioning of the parliamentary system and within it the capacity of Parliament to deliberate and provide firm and efficient government is decisive, in its deliberations.”
(For more see: Andras Sajo ‘Reading the Invisible Constitution: Judicial Review in Hungary’ (1995) 15(2) Oxford Journal of Legal Studies pp. 253-267)
The same principle being urged in this commentary is also evident in the decision by the Supreme Court of Israel in Rubinstein v. Minister of Defence, H.C. 3267 of 1997, where the Court held thus regarding the principle of democracy:
“the substantive decisions regarding the policy of the state and the needs of the society must be made by its popularly elected representatives. The legislature is elected to by the people to enact its laws, and it therefore enjoys social legitimacy in this activity……The legislature may not refer the critical and difficult decisions to the executive without its guidance.”
(For more see: Aharon Barak The Judge in a Democracy (2006, Princeton University Press))
Similarly, the United States Supreme Court has repeatedly rejected efforts to blend legislative and executive powers in novel ways, even where Congress and the President mutually agreed to such power sharing, and even if concrete benefits might be associated with such power sharing arrangements. The cases where the court has enforced structural separation of legislative and executive powers, include cases such as Buckley v Valeo (424 US 1 (1976) holding that Congress may not appoint members of a commission charged with enforcing the Federal Election Campaign Act of 1971, as amended because legislative appointment to an executive office does not comport with the Appointments Clause of Article II; and Clinton v City of New York (524 US 417 (1998) invalidating the Line Item Veto Act, a statutory effort to vest the President with the power to cancel ‘any dollar amount of discretionary budget authority’, ‘any item of direct spending’ or ‘any limited tax benefit’ after having signed the law authorizing the appropriation or creating the limited tax benefit because only Congress can repeal a statute once a statute has been enacted and by the exercise of a line veto ‘[i]n both legal and practical effect , the President has amended two Acts of Congress by repealing a portion of each.’ (See for critique: Ronald Krotoszynski Jr ‘The Separation of Legislative and Executive Powers’, in Thomas Ginsburg & Rosalind Dixon, (eds.) Handbook of Research on Comparative Constitutional Law (Elgar Publishing 2011).
Clearly, there is a need to advance an interpretation of article 115 of the Constitution that deepens Kenya’s democracy, and that diminishes the concentration of power in the Presidency and creates an effective countervailing power, by strengthening parliament. To achieve this goal, it should be recalled that Article 10 entrenches ‘democratic governance’ as a national value and principle of governance that must be taken into account when interpreting the Constitution. It is therefore imperative that parliament and courts should bear in mind that imperative when interpreting article 115 of the Constitution.