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Published online by Cambridge University Press: 28 September 2022
This article contends that the interpretation of article 115 of the Constitution of Kenya as providing for amendatory recommendations as a form of presidential veto to legislative bills is a departure from the common negative veto to bills which was the form envisaged by the drafters of the Constitution. Moreover, it is argued that the interpretation that article 115 of the Constitution allows the president to make positive legislative recommendations which can only be overridden by two-thirds of members of the legislature has transformed the president into the most decisive player in the legislative process in Kenya. The overarching contention of this article is that allowing the president to make positive legislative recommendations that can only be overridden by two-thirds of members of the legislature goes against the goal of tempering presidential powers, which was one of the animating goals that informed the quest for constitutional change in Kenya.
LLM (University of Pretoria), LLB (Moi University).
1 Hatchard, J, Ndulo, M and Slinn, P Comparative Constitutionalism and Good Governance in the Commonwealth: An Eastern and Southern African Perspective (2004, Cambridge University Press)CrossRefGoogle Scholar at 57.
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4 See generally YP Ghai and PWB McAuslan Public Law and Political Change in Kenya (1970, Oxford University Press); HWO Okoth-Ogendo “Constitutions without constitutionalism: An African political paradox” in D Greenberg et al (eds) Constitutionalism and Democracy: Transitions in the Contemporary World (1993, Oxford University Press) 65; and Gutto, SBO “Constitutional law and politics in Kenya since independence: A study in a neo-colonial state in Africa” (1987) 5 Zimbabwe Law Review 142Google Scholar.
5 W Mutunga Constitution Making from the Middle: Civil Society and Transition Politics in Kenya, 1992–1997 (2nd ed, 2020, Strathmore University Press); Juma, OD “Constitution making and democratization trends in Africa: The Kenyan case” (2004) 1 The East African Law Journal 21Google Scholar.
6 See MJC Ville Constitutionalism and the Separation of Powers (1967, Oxford University Press).
7 The Constitution, art 93.
8 The Constitution, art 176.
9 The Constitution, art 94(6) envisages that state organs, agencies, and officers can enact delegated legislations in the form of statutory instruments when authorized by legislation. See also the Statutory Instruments Act No 23 of 2013. For critique see Opalo, KO “Constrained presidential power in Africa? Legislative independence and executive rule making in Kenya, 1963–2013” (2020) 50/4 British Journal of Political Science 1341CrossRefGoogle Scholar.
10 The Constitution, art 94(5).
11 Strohmeier, G “More legitimation = more competence? Heads of state in parliamentary systems in comparative perspective” (2012) 6/2 Zeitschrift für vergleichende Politikwissenschaft 177CrossRefGoogle Scholar.
12 Cranenburg, O van “Restraining executive power in Africa: Horizontal accountability in Africa's hybrid regimes” (2009) 16/1 South African Journal of International Affairs 64Google Scholar. A rare aberration from this trend is the Botswana Constitution, which envisages that the President's veto can be overridden by a simple majority of the legislature. See in this regard sec 87 of the Constitution of Botswana.
13 See the Constitution, art 115.
14 The Constitution, art 115(4).
15 Tsebelis, G and Alemán, E “Presidential conditional agenda setting in Latin America” (2005) 57/3 World Politics 396CrossRefGoogle Scholar.
16 Ibid.
17 Id at 397.
18 On the notion of “tempering” power see Krygier, M “Four puzzles about the rule of law: Why, what, where? And who cares?” (2011) 50 Nomos 64Google Scholar; see also M Krygier “Tempering power” in M Adams, A Meuwese and EH Ballin (eds) Bridging Idealism and Realism in Constitutionalism and the Rule of Law (2016, Cambridge University Press) 34.
19 See H Lerner Making Constitutions in Deeply Divided Societies (2011, Cambridge University Press) at 26: “[c]onstitutions are rarely, if ever, written on a clean slate”.
20 The Independence Constitution, sec 34(1).
21 For an examination of the structural features of the Independence Constitution see Singh, C “The republican constitution of Kenya: Historical background and analysis” (1965) 14/3 The International and Comparative Law Quarterly 878CrossRefGoogle Scholar; see also Proctor, JH Jr “The role of the senate in the Kenyan political system” (1964) 18/4 Parliamentary Affairs 389Google Scholar.
22 See Okoth-Ogendo, HWO “The politics of constitutional change in Kenya since independence, 1963–69” (1972) 71/282 African Affairs 9CrossRefGoogle Scholar.
23 See PH Okondo A Commentary on the Constitution of Kenya (1995, Phoenix Publishers) at vi.
24 The Independence Constitution, sec 59(1).
25 The Constitution of the United States, art 1(7)(2).
26 E Alemán and G Tsebelis “The origins of presidential conditional agenda-setting power in Latin America” (2005) 40/2 Latin American Research Review 11.
27 G Tsebelis and TP Rizova “Presidential conditional agenda setting in the former Communist countries” (2007) 40/10 Comparative Political Studies 1159.
28 Alemán and Tsebelis “The origins”, above at note 26 at 14.
29 See NM Stultz “Parliament in a tutelary democracy: A recent case in Kenya” (1969) 31/1 The Journal of Politics 114; see also A Makhanu “The principle and practice of parliamentary independence: Interrogating the case of Kenya, 1963–2014” (MA thesis, Kenyatta University, 2015).
30 See G Muigai “Constitutional amendments and the constitutional amendment process in Kenya (1964–1997): A study in the politics of the constitution” (PhD thesis, University of Nairobi, 2001).
31 See JA Widner The Rise of a Party-State in Kenya: From “Harambee!” to “Nyayo!” (1992, University of California Press).
32 E Alemán and G Tsebelis “Introduction: Legislative institutions and agenda setting” in E Alemán and G Tsebelis (eds) Legislative Institutions and Lawmaking in Latin America (2016, Oxford University Press) 16.
33 Alemán and Tsebelis “The origins”, above at note 26 at 13.
34 Alemán and Tsebelis “The origins”, above at note 26 at 16.
35 Tsebelis and Rizova “Presidential conditional agenda setting”, above at note 27 at 1156.
36 Ibid.
37 G Tsebelis “The power of the European Parliament as a conditional agenda-setter” (1994) 88 American Political Science Review 128.
38 National Assembly Official Report (Hansard), 24 March 2005 at 149; National Assembly Official Report (Hansard), 5 April 2005 at 391; National Assembly Official Report (Hansard), 23 August 2007 at 3432. See also P Chitere et al Kenya Constitutional Documents: A Comparative Analysis (2006, CMI) at 10.
39 Alemán and Tsebelis “Introduction”, above at note 32 at 16.
40 The Constitution, arts 94(1) and 94(5).
41 See the National Assembly Official Report (Hansard), Speaker's Communication: Consideration and Scope of Presidential Reservations, 28 July 2015 at 8–9; see also the National Assembly Official Report (Hansard), Speaker's Communication: Votes & Proceedings, Twelfth Parliament, 18 September 2018 at 778–79.
42 Alemán and Tsebelis “The origins”, above at note 26 at 3.
43 Standing Order no 154(5), Standing Orders of the National Assembly (5th ed, Government Printer, 2013); see the Speaker's Communication (2015), above at note 41 at 4–14; see also the Speaker's Communication (2018), above at note 41 at 773–74. For judicial decisions see Nation Media Group Limited & 6 others v Attorney General & 9 others [2016] eKLR; Pevans East Africa Limited & Another v Chairman Betting Control and Licensing Board & 7 others [2017] eKLR; Apollo Mboya v Attorney General & 2 others [2018] eKLR; Pevans East Africa Limited & Another v Chairman, Betting Control & Licensing Board & 7 others [2018] eKLR; Transparency International (TI Kenya) v Attorney General & 2 others [2018] eKLR; and Coalition for Reforms and Democracy (CORD) v Attorney General; International Institute for Legislative Affairs & Another (Interested Parties) [2019] eKLR.
44 Standing Order no 154(5).
45 Ibid.
46 These bills include the Kenya Information and Communications (Amendment) Bill 2013; the Retirement Benefits (Deputy President and Designated State Officers) Bill 2013; the National Flag, Emblems and Names (Amendment) Bill 2013; the Public Procurement and Asset Disposal (Amendment) Bill 2013; the Central Bank of Kenya (Amendment) Bill 2014; the Statute Law Miscellaneous (Amendment) Bill 2014; the Police Service Commission (Amendment) Bill 2014; the Excise Duty (Amendment) Bill 2015; the Public Audit Act 2015; the Higher Education Loans Board (Amendment) Bill 2015; the Ethics and Anti-Corruption Commission (Amendment) Bill 2015; the Finance Bill 2017; the Refugee Bill 2017; the Finance Bill 2018; the Law of Contract (Amendment) Bill 2019; the Finance Bill 2019; the Parliamentary Pensions (Amendment) Bill 2019; the Employment (Amendment) Bill 2019; and the Parliamentary Service Bill 2019.
47 National Assembly Official Report (Hansard), Committee of the Whole House, 31 October 2013 at 47.
48 W Ugangu “Kenya's difficult political transitions ethnicity and the role of the media” in L Mukhongo and JW Macharia (eds) Political Influence of the Media in Developing Countries (2016, IGI Global) 21.
49 Article 19 The Impact of Kenya's Legal and Institutional Frameworks on Media Freedom (2014, Article 19) at 5.
50 National Assembly Official Report (Hansard), Communication from the Chair: Memorandum on the Kenya Information and Communications (Amendment) Bill 2013, 27 November 2013 at 26–27.
51 National Assembly Official Report (Hansard), Committee of the Whole House, 5 December 2013 at 31–42.
52 See Nation Media Group, above at note 43.
53 Id, paras 129–37.
54 National Assembly Official Report (Hansard), Referral of Bills by the President, 9 June 2015 at 1–2.
55 National Assembly Official Report (Hansard), The Retirement Benefits (Deputy President and Designated State Officers) Bill, 18 June 2015 at 40–43.
56 A Shiundu “President Uhuru denies Raila Odinga and Kalonzo Musyoka pension”, available at: <https://www.standardmedia.co.ke/kenya/article/2000162370/president-uhuru-denies-raila-odinga-and-kalonzo-musyoka-pension> (accessed 4 August 2022).
57 Coalition for Reforms and Democracy, above at note 43.
58 Id, para 52.
59 Id, para 59.
60 Id, para 61.
61 National Assembly Official Report (Hansard), Communication from the Chair: Referral of Public Procurement and Asset Disposal Bill / Public Audit Bill 2014, 11 June 2015 at 1–2.
62 Senate Debates Official Report (Hansard), Messages from the National Assembly: Presidential Memorandum on the Public Audit Bill, 14 July 2015 at 1–2; Senate Debates Official Report (Hansard), Report: The Public Audit Bill, 16 December 2015 at 26–32.
63 Transparency International, above at note 43.
64 Id, paras 137–38.
65 Id, para 133.
66 For enunciation of the notion of “structural constitutional bias” see J Gould and D Pozen “Structural biases in structural constitutional law”, available at: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3797051> (accessed 4 March 2021).
67 National Assembly Official Report (Hansard), Message: Presidential Memorandum on the Finance Bill 2017, 14 June 2017 at 1–2.
68 J Chelegat “How tax on betting made Uhuru reject 2017 Finance Bill”, available at: <https://citizentv.co.ke/news/how-tax-on-betting-made-uhuru-reject-2017-finance-bill-168113/> (accessed 23 February 2021).
69 National Assembly Official Report (Hansard), The President's Reservations to the Finance Bill 2017, 15 June 2017 at 82–86.
70 Pevans East Africa Limited [2017], above at note 43.
71 Id, para 103.
72 Pevans East Africa Limited [2018], above at note 43.
73 See in this regard SK Keverenge “Political party formation and alliances: A case of Kenya” (PhD thesis, Atlantic International University, 2008).
74 M Mwai and A Mwangi “MPs now protest incessant memorandums”, available at: <https://www.pd.co.ke/news/national/mps-now-protest-uhuru-incessant-memorandums-12559/> (accessed 23 February 2021).
75 M Odhiambo “House adjourns as MPs protest Uhuru veto on bills”, available at: <https://www.the-star.co.ke/news/2019-11-06-house-adjourns-as-mps-protest-uhuru-veto-on-bills/> (accessed 22 February 2021).
76 VO Mrimba “From rubberstamp to transformative legislature” (MA thesis, University of Bergen, 2012).
77 G Kegoro “Uhuru could be overreaching his mandate in law making”, available at: <https://nation.africa/kenya/blogs-opinion/opinion/uhuru-could-be-over-reaching-his-mandate-in-law-making-1122076> (accessed 6 March 2021).
78 JC Ghai and Y Ghai “The contribution of the South African constitution to Kenya's constitution” in R Dixon and T Roux (eds) Constitutional Triumphs, Constitutional Disappointments: A Critical Assessment of the 1996 South African Constitution's Local and International Influence (2018, Cambridge University Press) 277.
79 See S Issacharoff Fragile Democracies: Contested Power in the Era of Constitutional Courts (2015, Cambridge University Press), who argues that courts may be well positioned to weaken presidential power and improve the functioning of the legislature, largely by regulating legislative procedure. See also Robinson, N “Expanding judiciaries: India and the rise of the good governance court” (2009) 8 Washington University Global Studies Law Review 16Google Scholar; Landau, D “Political institutions and judicial role in comparative constitutional law” (2010) 51 Harvard International Law Journal 345Google Scholar; Landau, D “Political support and structural constitutional law” (2016) 67 Alaska Law Review 1069Google Scholar. However, for a contrary view see TG Daly The Alchemists: Questioning Our Faith in Courts as Democracy-Builders (2017, Cambridge University Press), who argues that prevailing theories and institutions have placed too much weight on courts for stabilizing and building transitional democracies.
80 Alabi, MOA “The legislatures in Africa: A trajectory of weakness” (2009) 3/5 African Journal of Political Science and International Relations 239Google Scholar.
81 See Khobe, WO “Constitutional guardianship in Kenya's bicameral legislature: An assessment of judicial intervention in inter-cameral disputes over the enactment of the Division of Revenue Bill” (2021) 6 Strathmore Law Journal 1Google Scholar.
82 B Sihanya “The presidency and public authority in Kenya's new constitutional order” (SID Constitutional Working Paper no 2, 2011).
83 International IDEA, Presidential Veto Powers (2015, International IDEA) at 11.
84 See for example Constitution of the United States, art 2, sec 7.
85 International IDEA, Presidential Veto Powers, above at note 83 at 11.
86 G Tsebelis Veto Players: How Political Institutions Work (2002, Princeton University Press); see also Tsebelis, G “Decision making in political systems: Veto players in presidentialism, parliamentarism, multicameralism and multipartyism” (1995) 25/3 British Journal of Political Science 289CrossRefGoogle Scholar.
87 JC Ghai “Law making and the president (and governors)”, available at: <https://katibainstitute.org/law-making-and-the-president-and-governors/> (accessed 6 March 2021).
88 On the value order established by the Constitution, see WO Khobe “The jurisdictional remit of the Supreme Court of Kenya over questions involving the ‘interpretation and application’ of the Constitution” (2020) 5 Kabarak Journal of Law and Ethics 1. See also Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, paras 364–66.
89 As has been pointed out by Joel Barkan, the institutional features necessary to balance power between the executive and legislature include the possibility of passing legislation without assent of the president or overruling a presidential veto. See Barkan, J “Legislatures on the rise?” (2008) 19/2 Journal of Democracy 124CrossRefGoogle Scholar.
90 The Colombian Constitutional Court in Decision C-097 of 2007 held that “[i]n 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.” Similarly, the Constitutional Court of Hungary in Decision no 4 of 1993 stated: “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.” See also Sajo, A “Reading the invisible constitution: Judicial review in Hungary” (1995) 15/2 Oxford Journal of Legal Studies 253CrossRefGoogle Scholar.
91 Twea J of the High Court of Malawi, in The State, The President of Malawi and others v ex-parte Malawi Law Society and others [2002–03] MLR 409 (HC), held as follows at 415: “[S]ection 48 of the Constitution vests all legislative powers in Parliament and under section 58(2) Parliament is prohibited from delegating legislative powers that substantially and significantly affect the fundamental rights and freedoms recognized by the Constitution. The President under the Constitution therefore, does not have power to make laws.”
92 The Supreme Court of Israel, in Rubinstein v Minister of Defence [1997] HC 3267, held in this regard that “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.” See also A Barak The Judge in a Democracy (2006, Princeton University Press).
93 See generally Gargarella, R Latin American Constitutionalism, 1890–2010: The Engine Room of the Constitution (2013, Oxford University Press)CrossRefGoogle Scholar 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.
94 Abungu, C “Revisiting the place of preparatory documents in the interpretation of transformative constitutions” (2019) 13/1 Vienna Journal on International Constitutional Law 65Google Scholar; see also Khobe, W “The Supreme Court versus Royal Media Services: History as ‘super context’ in constitutional interpretation” (2018) 34 The Platform 50Google Scholar.
