The MPs’ Salaries Case: A Triumph for Constitutional Supremacy in Kenya

Gado on MPs Salary Raise

“Parliamentarians are expected to operate within the letter and the spirit of the Constitution. Parliament, like all other state organs, is not above the law. Members of the National Assembly, like all other state officers, and the National Assembly, like all other state organs are compelled by the Constitution to adhere to the national values and principles of governance found in Article 10 of the Constitution. We therefore agree with the petitioners that the resolution by the National Assembly to nullify the Gazette Notices published by the SRC was unconstitutional.” – Judgment in Petition No. 227 of 2013 at paragraph 82.

The above judgment by a three-judge bench sitting at the High Court at Nairobi is significant for two distinct yet connected reasons: firstly, it is a big win for the doctrine of constitutional supremacy against the doctrine of parliamentary sovereignty and secondly, it restores much-needed public trust in the ability of the Judiciary to dispense justice. A copy of this landmark judgment is available here.

In the recent past, there have been several spirited public campaigns against members of parliament (MPs) whom many registered voters feel have gone rogue by putting their narrow private interests above those of the electorate that put them in public office. The climax of this perceived parliamentary impunity came in May 2013 when the National Assembly (NA) wrote to the Salaries and Remunerations Commission (SRC) purporting to nullify the remuneration of various categories of state officers which the SRC had published in the Kenya Gazette.

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The Political and The Legal Merge: Kenya’s Coalition Attorney-General

First off, let me just say that the nomination of AG should not be taken out of context merely because the Executive agreed on Prof. Githu Muigai. Kibaki is hardly the first President to nominate a “friend” or “ally” to the position of AG. In the US, John F. Kennedy nominated his own (inexperienced) brother Robert Kennedy who served as AG and let’s not forget Richard Nixon who appointed his Presidential Campaign Manager John Mitchell to be AG. The key issue in this nomination, to my mind, is one of merit. The next AG of the Republic of Kenya must be qualified, and extremely so given our complex legal history and forward-looking constitutional blueprint.

I think the questions Parliament need to ask themselves as they deliberate on whether to confirm Prof. Githu Muigai’s nomination as AG should all be aimed at answering the following key concern:

Does the AG nominee understand that the AG’s Chambers needs to be the voice for the rule of law in those close-door Cabinet deliberations and provide an honest appraisal of all applicable law even if the advice will constrain the Government’s pursuit of desired policies?

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Nelson Mandela Lives!

Dear Kenyans,

To honour Mandela on this Nelson Mandela International Day, the UN asks everyone to devote 67 minutes to public service. In the Tata Madiba spirit, DR suggests the following good deeds for the day:-

1. Read a story-book to small children eg. Mike Sonko & Co.

2. Help the blind e.g. the GOK. by printing out the entire Constitution in braille so that they can finally SEE what Kenyans are making such a big fuss about.

3. Help the deaf e.g. Kenya Power, by coming up with your own pictoral ads to tell them how you really feel about their services.

4. Help the needy e.g the Nyachae-led Commissioners who have apparently been working pro-bono for over six months.

5. Be kind to animals e.g Parliamentarians. by dangling the “carrot” of your 2012 re-election vote, only on condition they shape up.

But on a serious note, this time last year I wrote a post “When Mandela Dies” to coincide with Madiba’s 92nd birthday but more so as a reaction to the surprising news that the UN had officially made July 18th Nelson Mandela International Day. It seemed a liiittle premature to me, but hey, these things happen right? Anyways, based on the comments we recieved, the general consensus seems to be that Mandela is no god and the world must simply tone-down on the hero-worshipping. Even South Africans themselves amidst the Mandela-mania also admit that Mandela was/is not perfect. But the difference between them and the rest of us is that while we are quick to start comparing Mandela to Obama, Gandhi, Mother Teresa and others, South Africans simply look at the man that is Nelson Mandela. South Africans have watched him go from man to myth and now more than ever want to emulate him.

As one SA journalist puts it:

“His transformation from a world renowned prisoner to a global icon has been phenomenal. The secret must lie in his proven ability to reinvent himself and the astuteness of those who worked on his image when he could not do it for himself. Perhaps we should not be altogether surprised. Mandela has been meticulous and deliberate about the building his own image for a long time – an exercise fanatic, a snappy and a strategic dresser for nearly fifty years. If one adds to all these a deliberate campaign of defiance – inside and outside the country – designed to make his name known, the result could only be an icon and a myth of global proportions.”

All in all, Mandela will forever be a global icon in his own right. Although there’s always a tendency to compare him with other historical figures of the world, we should never forget the role he has played and continues to play in putting the African continent on the map.

Happy Birthday Madiba!

This Democracy Thing Requires Adult Supervision

Why do I always fear for the worst everytime I hear something has to go through Parliament?

Among the three arms of government, Parliament thumps its chest the loudest as being the one true democratic entity by the people and for the people. But that’s all on paper. In practice, the Kenyan people have lost total faith in parliament to put their selfish interests aside and speak for the people who elected them into office in 2007.

However, there’s a silver lining.

Kenyans appear to have woken up and are beginning to insist on the concretization of constitutional ideals like public participation, institutional transparency, individual and collective responsibility, meritocracy and accountability. A good example here is the on-going vetting process within the Judiciary and now the Police. Lest we forget if it wasn’t for the peoples’ insistence that the Constitution be followed to the letter, we would have had Alnashir Visram, Githu Muigai and Kioko Kilukumi as our CJ, AG and DPP respectively.
Fast forward to the present day where we appear to be headed back to the same primitive democracy of ethnicity and political horse-trading as the CIOC is expected to table tomorrow before Parliament the a report containing the confirmed nominees for the positions of CJ, DCJ and DPP.

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