Organs Of Government

1. Introduction

A Constitution establishes the regulatory framework for political activity and the
governance process in a country. One of the things it does it to establish organs of
government, define their functions and specify their powers for the discharge of
these functions.

Experience from all over the world, and from time immemorial has taught that
three particular organs of government are the most basic. These are: the Executive;
(b) the Legislature; and (c) the Judiciary. These organs correspond to the vital and
most basic governance functions, namely (and respectively), (i) the conduct of
policy and administration; (ii) the making or repealing or amendment of the
governing laws; and (iii) the adjudication of conflicts that arise while the laws of
the land are being implemented through executive and administrative decision-
making or action.

Although all Constitutions will provide for the three organs, their functions and
powers, the Constitutions of different countries thereafter take different
approaches, as some may go further and provide for additional governance -related
organs. For example, the Ugandan Constitution provides for a further
constitutional organ, known as the Inspector-General of Government, as does that
of Tanzania , which provides for the Permanent Commission of Inquiry - both
being nomenclature describing the Ombudsman institution.

The current Constitution limits itself to the three basic organs of government. In
this paper we consider the broad outlines of these organs of government.

2. The Executive Organ

The Executive under the Kenya Constitution started off with a dual character,
under the Independence Constitution in 1963. The day-to-day operation of
government was conducted under the direction of a Prime Minister, who was the
leader in Parliament of the political party with the largest number of seats in the
house. The more occasional, symbolic and constitutional acts of government, such
as formally naming the Prime Minister, proroguing or dissolving Parliament, were
conducted by the Governor-General, representing the Queen of England, who
operated in the capacity of Head of State.

The Executive organ was a diverse entity with a clear scope for checks-and-
balances. This feature, however, was taken away with the inauguration of
Republican status on December 12, 1964. The advent of the Presidency severed the
political link between Kenya and Her Majesty the Queen's Government in the
United Kingdom. Henceforth, the Executive of the Kenyan State consisted solely
in the President, who was his own Prime Minister while in his other capacity, he
was the Head of State and Commander-in-

Chief of the Armed Forces. An unqualified monolithic structure was thus installed
upon the constitutional system.

If this monolithicism was at first essentially instrumental, it was to be confirmed in

place, firstly by the changed politics that brought the single party system, and then
by a series of amendments that enhanced and consolidated the executive powers of
the President and gave him the upper hand in his interplays with the Legislature. In
the few years following the establishment of Republican status, all the main
elements of diversity in the constitutional system, such as the semi-federalist
structure and the bicameral Parliamentary system, were removed and the
outstanding and greatly empowered profile of the President, became the main
landmark of the constitutional order.

Those who have paid keen attention to the more recent political changes in Kenya
will readily recognize that, it is precisely the monolithicism of the immediate post-
independence years that prompted the public to initiate clamours for change,
leading to the re-introduction of the multi-party system and a re-dedication to the
principle of pluralism.

Against this experience, it may now be regarded as a basically valid proposition

that the people of Kenya are likely to support enlargement of the number of
participating agencies in the stall of the Executive.

However, the present Constitution of Kenya retains the limited - scope Executive;
and this will necessarily be a subject in respect of which the Constitution of Kenya
Review Commission should receive the opinions of the members of the public.

Issues pertaining to the ideal characteristics of the Executive must also address its
interplays with Parliament. The term Parliament means all the elected and
nominated members of Parliament, taken together with the President as Head of
State; for it is only this whole institutional chain that can make and compete the
law-making process. But the person who is President, by virtue of being an
ordinary Member of the National Assembly as well as the Head of Government,
also belongs to the National Assembly qua member and qua Head of a government
(in effect, a Prime Minister) who is accountable on the floor of the National
Assembly. The effect is that Kenya has a Presidency that is inseparably fused with
the National Assembly. This is a classic example of the absence of separation of
powers.

The Executive's intimate fusion with the National Assembly may be said to be
normal in a parliamentary tradition of government. However, there is the
significant difference that the President has, besides, been directly elected by the
people, and often feels himself more accountable to the people (at election time,
once in five years) more than to anyone else. This produces a duplicity in lines of
responsibility, and considerably weakens the National Assembly's scope for
exercising control over executive powers. It is desirable that this duplicity be
removed, in a quest for governmental accountability, transparency and
constitutionalism. The Commission needs to address this question and if need be,
make appropriate consultations with the people.

3. The Legislature

In the rapid constitutional amendment process of the 1960s, the preoccupation with
the enhancement of the power of the Executive not only achieved that goal, but
also entailed the reduction in the size and strength of the legislative body. Under
the Independence Constitution there had existed a House of Representatives and a
Senate, the latter forming part of the package of institutions attached to the semi-
federal constitution. Now the Executive in the first place did not allow funds to be
disbursed for the running of the semi-federal (Regional) agencies; and then the
Executive secured the abolition of semi-federalism through a constitutional
amendment. Soon thereafter the Senate was itself abolished, again through a
constitutional amendment. No check-and-balance institution was left to limit the
free reign of the Executive, which became still more powerful, in particular, owing
to the removal of 1969 of the political context of pluralism, by abolishing the
Opposition Kenya People's Union. Kenya thereafter remained a one-party State
{defacto, 1969-1982; dejure/ 1982-1992). This condition greatly weakened the
strength of the National Assembly which now, in the totality of its membership,
had always to take the line of the single party, KANU and, therefore, had no
capacity to assert any real control on the Executive.

As the strength, and check-and-balance capacity of the Kenyan parliament rests on

the scope for the existence of differing opinions and the free play of voting
alliances on the floor of the House, it follows that the National Assembly was no
longer able to serve as an effective power-control institution.
The Commission should share thoughts with the people on the suitability of the
parliamentary system for Kenya. If it is agreed that this constitutional system is an
essential part of the country's constitutional heritage, or that it is intrinsically good
for Kenya, then a further question to be asked is whether it is agreed that Kenya
must remain committed to multi-partyism and to political pluralism. If the people
consider that a strong parliamentary institution is desirable in Kenya's quest for
constitutionalism and the rule of law, then there will be a duty to put in place a
Constitution in the liberal tradition associated with the older members of the
Commonwealth. Such a Constitution would provide for the freedoms of assembly
and association, for the recognition and acceptance of multi-partyism, for the full
accountability of the Executive to Parliament, and for some of the usual
conventions of the Parliamentary system, such as the censure or no-confidence
vote in Parliament leading to the fall of the government; the practice of ministerial
responsibility; etc.

The Commission may indeed want to elicit the people's opinions on the best ways
of strengthening Parliament, e.g. by abolishing the nomination of a section of the
MPs; by enhancing the controls by Parliament in respect of matters such as public
finance; etc.

4. The Judiciary:

The Kenyan Judiciary, in its essential character, has three tiers: the magistracy at
the bottom level; the High Court in the middle; and the Court of Appeal at the top.

There has been some debate on the possibility of establishing a Supreme Court.
The Commission could put this before the people for an opinion. If a Supreme
Court were put in place, how would it relate to the Court of Appeal? What specific
functions would be entrusted to the Supreme Court? What would be the size of this
court? What would be its primary functions.

It would be necessary to resolve the question as to the role of the Supreme Court in
constitutional interpretation. Today, it is the High Court that is regarded as the
Constitutional Court. So, what is the position of the Court of Appeal in relation to
constitutional matters? Ought the Supreme Court not to be the ultimate
Constitutional Court?

The Commission may wish to take up with the people the question as to what
should be the role of the Executive in the affairs of the other organs of government,
in particular the Judiciary. Is the current procedure of appointment of judges
acceptable? What of the procedure for removing them? What role should the
Executive play in the appointment or dismissal of judicial staff? What are the best
ways of assuring the independence of the Judiciary? Should Parliament be given a
place in the appointment process for judges? How should competence and
impartiality be assessed in the Judiciary? In what ways can the Judicial process be
made more accessible to the people? Ought there not to be a clear Constitutional
recognition of legal aid, as an empowering scheme for allowing the people greater
access to the Judicial process?

5. New Organs of Government

Since the Commission has a mandate to seek greater constitutionalism in Kenya's

governance system, it will need to submit to the people the question whether more
organs of government should be established. In particular, the Commission should
canvass the people's views on the institution of Ombudsman. This organ, by
whatever name called, serves as the poor person's lawyer and protector, by
ensuring this person does not suffer harm at the hands of administration officials.
The Ombudsman ensures that mal-administration (incompetence, delay,
corruption, rudeness, discourtesy, high-handedness, abusiveness) is kept to a
minimum, and that the ordinary citizen who requires assistance from government,
is accorded that assistance.