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PRESS STATEMENT ON THE UNCONSTITUTIONAL EXERCISE

OF POWER BY THE NATIONAL ASSEMBLY
As the institution charged with the mandate of overseeing the implementation
of the Constitution of Kenya 2010, the Commission for the Implementation of
the Constitution(CIC), has in the recent past been concerned by the actions of
the National Assembly as it exercised powers allocated to it by the Constitution.
The Constitution of Kenya 2010 recognizes that sovereign power belongs to
the People of Kenya. However it provides that such power may be delegated
to various organs including the Legislature. Pursuant to this delegation, the
Constitution grants extensive powers to the houses of Parliament over critical
matters. The Constitution expects that such delegated powers must however
at all times be exercised on behalf of and solely for the benefit of the people
and that such state authority can only be exercised as authorized under the
Constitution.
In the case of the National Assembly the Constitution grants two critical powers;
firstly, to review and approve the National Budget and secondly, the power
to approve appointments by the President. It must be remembered that the
granting of these powers to the National Assembly was a departure from the
previous constitutional order where the Executive misused its powers over the
budget and over appointments to key public offices by not always considering
the national interest.
In these last two weeks, the National Assembly has violated the Constitution by
abusing its powers in two incidents relating to the exercise of these mandates.
The first instance arose when the Senate and the Assembly agreed, after a
contentious mediation process, to allocate additional funds to the Counties
through the Division of Revenue Bill. To fund the additional allocations to
the Counties, the National Assembly reduced the budgetary allocations to
institutions that had taken actions offensive to the Assembly. This included
the Senate, which had taken a different view from the Assembly on the Division
of Revenue Bill; the Judiciary, which had given a ruling deemed offensive to
the Assembly and; the Salaries and Remuneration Commission, which has a
contentious relationship with the Assembly over their remuneration.
From pronouncements on the floor of the House by various members during the
debate on the budget, it was clear that the decision to reduce the allocations
to these institutions was not based on the budgetary needs of the institutions,
or similar objective criterion, but on what was perceived by various members
to be the conduct of these institutions against the interests of the National
Assembly and its members.
In the second and most recent incident, a Parliamentary Committee
recommended the rejection of the nominee for the Office of Secretary to the
Cabinet, Dr. Monica Juma on the basis that she was not suitable to hold the
Office she was seeking. The House adopted the report of the Committee.
Again, from the contest of the Committees report as well as pronouncements
by members during debate on the matter, it was clear that the rejection of the
nominee of Dr. Juma was not based on objective criteria as anticipated by the
Constitution and set out in the Public Appointments (Parliamentary Approval)
Act.
Section 7 of the said Act requires the applicable Committee to consider only
the following matters in vetting a nominee: The procedure used to arrive at the nominee;
Any constitutional or statutory requirements relating to the ofce in
question; and
The suitability of the nominee for the appointment proposed having

regard to whether the nominees abilities, experience and qualities

meet the needs of the body to which nomination is being made.
It was clear from the debate on the matter that what occasioned the rejection
of Dr. Juma was her alleged impoliteness and rudeness to members of
the Assembly, and in particular members of the Committee, while she was
serving as Principal Secretary. The allegation of impoliteness was duly
supported through personal testimonies of members whose requests Dr. Juma
had purportedly rejected and by a letter she had written to the Clerks of both
Houses of Parliament. In the offensive letter, which is now in the public
domain, Dr. Juma had simply drawn the attention of the House to the need for
respect of the law and the Constitution in her dealings with members.
On both these occasions, Members of the Assembly have used their powers
contrary to the intent and purpose of the Constitution and in particular Chapter
6 of the Constitution. In Article 73 of the Constitution it is provided inter alia
that a State officer holds their office in trust for the people of Kenya and must
exercise their role in a manner that brings honour to the nation and dignity to
the office, and promotes public confidence in the integrity of the office.
Article 73 also requires State officers to exercise objectivity and impartiality in
decision-making, and to ensure that decisions they make are not influenced by
nepotism, favouritism, other improper motives or corrupt practices.
The same Article further provides that State officers must provide services
selflessly based solely on the public interest, demonstrated by honesty in the
execution of public duties and the declaration of any personal interest that
may conflict with public duties.
As State Officers, the members of the National Assembly are duty bound, both
as individuals and collectively as an institution to uphold the highest standards
of integrity as defined by these provisions. Their decisions must never be
informed by any other consideration other than public interest. Their decisions
must be made only on the basis of lawful considerations. Their decisions must
never be about the individual or institutional interests of the Members of the
Assembly.
This trend by the National Assembly has been replicated in many County
Assemblies where MCAs have many times allocated unduly huge sums of funds
to the County Assembly or to projects in which they have personal interests. The
conduct of these representatives of the people inevitably leads to demeaning
of these offices contrary to Article 75 of the Constitution and are an abuse of
the public trust.
This is a trend that must stop. As a Commission, we intend to seek such legal
action as may be necessary to ensure that those who have abused their
powers in this manner are dealt with in accordance with the law, including
being deemed unsuitable to hold public office.
We call on Kenyans to remain vigilant to ensure the protection of the Constitution
of Kenya on these and other matters where it may be under attack.
CHARLES NYACHAE
CHAIRPERSON