Public Participation and Parliamentary Oversight Legal Reforms and Policy Options

8/9/2019 Public Participation and Parliamentary Oversight Legal Reforms and Policy Options

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Public Participation and

Parliamentary OversightLegal Reforms and Policy Options


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Contents

Introduction 1

The policy question 1

Part 1: Context and diagnosis 2

Part 2: Parliamentary committees and public participation 3

Part 3: Factors that affect the capacities of committees to meaningfully engage the public

Part 4: Policy and legal reforms to promote public participation in oversight committees

Africa Centre for Open GovernanceP.O. Box 18157-00100, Nairobi,Kenya. Telephone: +254 20-4443707/0737463166Email: [email protected]: www.africog.org


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invites the public to hearings. Sometimes even thoughhearings are required they are not held. In some parlia-ments, there is a presumption of the right to be heardand in others the matter is at the discretion of the Na-tional Assembly. But hearings are not the only meansof public participation in parliamentary matters. Otherforms of public involvement include: transmission and (re)broadcasts of parliamentary

proceedings; observation of hearings; written submissions; public petitions and open proceedings.

In Kenya, the new constitution mandates openness,transparency and public involvement. But the achieve-ment of this depends on effective implementing legis-lation; proper administrative structures; nature, number,powers and capacities of committees, and leadershipand technical capabilities of parliamentary committees.

This brief is in fours parts: the rst part provides the le-gal and political context of this question; the secondpart looks at the constitutional foundation and natureof the committee system; part 3 at the factors that af-fect public participation and part 4 at the legal andpolicy reforms needed to improve public participation.

Introduction

The policy questionOne of the most important changes introduced by the2010 Constitution is the enhanced role of the public ingovernance generally and in parliamentary processesin particular. There are specic provisions mandat-ing openness and public inclusion in the preamble tothe constitution, 1 explicit affirmation of the constitu-ent power of the public in the sovereignty clause 2 andrequirements for involvement and consultations fore-ground most of the chapters. How will this opennessand participation be given effect, in general? Morespecically, how will parliamentary committees fullthe transparency guarantees and public participationrequirements of the constitution?

This policy brief analyses the key questions and issuesthat need to be addressed. Globally, there is growingrecognition that public participation improves policyoutcomes. 71 of 88 parliaments reviewed in a WorldBank study arranged public hearings. But these are ofvariable depth, scope and quality. Some parliamentsroutinely conduct hearings with those affected andwith experts; other parliaments arrange hearings withgovernment officials and yet another group typically

1 Lines 7 and 8 of the Preamble.

2 Article 10.


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Part 1: Context and diagnosis

The Context: The post-election crisis in 2008 drove homethe point that Kenyas political problems were structur-ally embedded in the constitution as it had been imple-mented and denatured through various amendmentsfrom independence. These problems were identied asthe countrys winner-take-all electoral system; frail insti-tutions unable to mediate intense political competitionand unaccountable security sector institutions. Theseproblems pointed to the need for urgent review of thecountrys constitution. Under a process embedded inthe old constitution, a new constitution was draftedand ratied in a referendum on August 4, 2010. With aturnout of 72.1%, the referendum recorded the highestturnout of any election in the history of Kenya.

The new constitution provides a framework for undo-ing Kenyas 40 year authoritarian legacy: powers aresplit and balanced under a fully presidential system andbetween a national and local government structurebased on counties; the bill of rights has been strength-ened to expand on the previous bill of rights and civiland political rights have been introduced; the electoralsystem remains constituency-based but there is great-

er inclusion of women, marginalised groups and theyouth; the security machinery have been placed undergreater constitutional and popular scrutiny throughthe elected branches of government; oversight insti-tutions such as Auditor General, Controller of Budget,Ethics and Integrity Commission and the Human RightsCommission have not only been recognised but havealso been given wider powers; revenues are given asounder footing through the constitutional recognitionof the Revenue Allocation Commission; amendmentsto the constitution require much higher threshold and

some must be approved by referendum. These sweep-ing changes are buttressed by broad principles thatguarantee openness and scrutiny and public access togovernance institutions. Going forward, two key chal-lenges need to be addressed: the rst is the recognition that there is a big differ-

ence between the authority that the constitution as-

serts- as a matter of drafting- and that which it willeventually exert- as a matter of implementation;

the second is that many of the changes proposed bythe constitution are not self-executing, they dependon the enactment of enabling legislation.

Diagnosis: The 2010 Constitution radically altered theKenyan constitutional system from a dysfunctional hy-brid of the British parliamentary and the American pres-idential systems to an explicitly presidential system. Thenew system is a radical break from what we have had:a president with an electoral mandate independent ofthe electoral mandate of parliament; a bicameral par-liament with a National Assembly with representativeschosen from single member constituencies supple-

mented by special seats for discrete and insular groupsthat are traditionally under-represented and a Senatethat represents counties. These changes mean that theuse of the tools and mechanisms that Parliament usesto hold government to account must also change. Thetools for parliamentary scrutiny of the executive underthe new constitution are a combination of some oldand new tools. They include: the parliamentary inquiry; ad hoc investigations by specially constituted com-

mittees;

regular scrutiny by standing committees; the parliamentary motions of censure; the parliamentary debate; the power to approve or reject appointments; the power to impeach the President and

Vice-President; and the power to amend the budget.

Under the presidential structure in the new constitu-tion, members of the cabinet will not sit in the NationalAssembly, hence the primary site for scrutiny of the

executive will be the parliamentary committee, not, asbefore, the parliamentary questions asked in plenarysessions.

Foundations of the Committee System: The link betweenthe committees of Parliament and the public participa-tion is Article 94 of the constitution which explicitly says


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that the legislative authority of the Republic is derivedfrom the people. The legislative authority is shared be-tween the Senate and the National Assembly whichhave discrete and conjoint powers to appoint commit-tees to discharge Parliaments mandate. These commit-tees are established under and regulated by StandingOrders which govern both the orderly conduct of busi-ness in the two Chambers and also the proceedings ofcommittees.

Part 2: Parliamentary committeesand public participation

(a) Types of Committees at the National Level: The constitution envisions that to the extent possible,members of the public should be involved as much aspossible in the work of all committees of Parliament.However, it is also clear that the public interest in com-mittee work will depend, in a signicant way, on the na-ture and work of the particular committee. Parliamen-tary committees under the constitution will fall into sixbroad categories:

1. Standing Legislative Committees: These are per-manent committees with departmentally relevantmandates for scrutinizing government policies. Veryoften, these committees mirror government minis-tries and departments, hence their usual descriptionas departmental committees. All bills affecting suchministries, policy issues related to the ministries aswell as budgets and estimates of the departmentsare, in the rst place, considered in these commit-tees. These committees are the tools for on-goingscrutiny of government. Some permanent legisla-

tive committees may also be established or be re-quired by statute. Public participation and involve-ment in the work of such committees is imperative.

2. Standing Non-Legislative Committees: These arealso permanent committees but they do not havepolicy relevant departmental responsibilities. Mostof these are committees related to internal affairs of

the Parliament. These committees often deal withhouse-keeping issues or with the internal manage-ment of the house. They include, for instance, theLibrary Committee; the House Business Committee;Parliamentary Pensions Committee; the Cateringand Health Club Committee; Procedure and HouseRules Committee; the House Broadcasting Commit-tee and the Speakers Committee.

3. Ad Hoc Committees of Inquiry: These are need-based committees established by resolution of ei-

ther house (or both) to address a specic issue un-der Terms of Reference (ToRs) set out by the house. Though the house does not currently have a com-mittee of inquiry, it is inevitable that at some pointcommittees of inquiry will be established. Sincesuch committees are usually created to deal withpressing public issues the imperative for participa-tion is very high.

4. Special Purpose Committees: The clearest exampleof such a committee is the optional committee on

impeachment. The constitution gives the Senate theoption to create a special committee on impeach-ment. This committee may fall in the generic cat-egory of ad hoc committee of inquiry, but given theextra-ordinary nature of the impeachment power aswell as the procedural fact that it is, in effect, a trialrather than a parliamentary proceeding, this com-mittee should be treated as an ad hoc committee ofinquiry sui generis.

5. Joint Committees: The constitution also gives the

National Assembly and the Senate the discretionarypower to create joint committees. The mandates ofsuch committees will be in the instrument that cre-

3 Article 112.


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ates them. But examples of joint committees wouldinclude mediation committees 3 which are created toresolve issues on which the houses are deadlocked.

6. Sub-committees of Parliamentary Committees: Under the Standing Orders committees may ap-point sub-committees to assist in the discharge oftheir functions. To pass constitutional muster, suchsub-committees should be subject to the sametransparency and participation requirements as themain committees.

(b) Public Participation and the Committee System:Under the centralised, prefectural administration estab-

lished by the post-independence constitution, publicparticipation and inclusion were virtually non-existent. The public participation and inclusion requirements ofthe new constitution are designed to remedy this de-fect. So central is this public involvement theme to thenew dispensation that the constitution makes it clearthat public participation is a requirement not merely ofthe electoral process but an ethos of the entire govern-ment system established by law. There are four specicareas in which it is mandated and one omnibus trans-parency requirement:

1. There is a general constitutional duty on Parliamentand County Assemblies to involve the public: Theconstitution under Article 118 and 196- imposeson Parliament and County Assemblies respectivelyboth a positive and a negative duty: the positiveduty requires the involvement of the public and thenegative duty bars the exclusion of the public fromproceedings of Parliament and County Assembliesor the proceedings of their committees. 4

2. In matters of public nance: The provisions on pub-lic nance articulate principles of openness andaccountability. Under this, the constitution has im-posed a requirement of public participation in -nancial management. 5

3. In the delivery of service by the public service: Un-der the values and principles for the managementof the public service, the constitution requires in-volvement of the people in the process of decision-making and also transparency and provision to thepublic of timely, accurate information. 6

4. In environmental husbandry: Provisions on the

management of natural resources, contained in thechapter on the management of public land, requirethe State to encourage public participation in themanagement, protection, and conservation of theenvironment. 7

5. General transparency guarantees: The purpose oftransparency guarantees is to protect the opennessof public decision-making processes. Key to theseguarantees is access to information in a relevant andusable form. Access to information is a fundamental

human right in Article 35 which provides that everycitizen has a right to access information held by theState, and to access information held by anotherperson and required for the exercise or protectionof any right or fundamental freedom. The provisionalso obliges the State to publish and publicize anyimportant information affecting the nation. Trans-parency guarantees are embedded in many othersubstantive provisions of the constitution: the pro-visions on the management of public land include

4 Article 118 specically provides under sub-section (1) that Parliament shall conduct its business in an open manner, and its sittings and those of its committees shall be opento the public; and facilitate public participation and involvement in the legislative and other business of Parliament and its committees. Under sub-section (2) the constitutionprovides that Parliament may not exclude the public, or any media, from any sitting unless in exceptional circumstances the relevant Speaker has determined that there are justiable reasons for the exclusion. Article 196 (1) and 2 re-iterate the same strictures with reference to County Assemblies.

5 Article 201 (c).

6 Article 232 (1).

7 Article 69 (1) (d).


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principles of transparency and accountability andcost effective administration; 8 those on representa-tion of the people require elections to be transpar-ent;9 procurement is required to be transparent, 10 and there is a general duty on Parliament to enactlaws that ensure both expenditure control andtransparency in all governments. 11

6. In addition, devolution is a means of enabling par-ticipation: In terms of institutional design, the con-stitution mandates decentralisation and explicitlystates the objectives of devolution to include thedemocratic and accountable exercise of power andthe desire to give powers of self governance to the

people and enhance the participation of the peoplein the exercise of power of the State and in makingdecisions affecting them. 12 A related objective isto recognize the right of communities to managetheir own affairs13 and to protect and promote theinterests and rights of minorities. 14

Part 3: Factors that affect thecapacities of committees to

meaningfully engage the public(a) Internal capacities of committees: Parliamentary

committees suffer from inadequate staffing lev-els. Though the Parliamentary Service Commissionhas been implementing reforms to strengthen theresearch and analysis capabilities of parliamentarycommittees, staffing levels remain low. Withoutadequate staff in numbers and skills- committeework tends to be slow, which undermines overalleffectiveness and erodes the meaningfulness of

8 Article 60 (1) (d).

9 Article 81.

10 Article 227 (1).

11 Article 225 (2).

12 Article 174 (c).

13 Article 174 (d).

14 Article 174 (e).

public participation, since public input cannot beprocessed sufficiently or effectively. Improved staff-ing needs to be rigorously linked to size, typologies,membership, composition, mandate and investi-gatory requirements of specic committees. In ad-dition, changes in the reporting mechanisms, thedrafting of quality reports and implementation ofparliamentary resolutions are also necessary.

(b) Infrastructure of committees: The physical infra-structure available to committees has had a con-straining effect on public participation. Only thePublic Accounts Committee and Public InvestmentsCommittee have designated meeting rooms, the

other committees have to share the few committeerooms available. The expanded nature of the legis-lature will put more strain on the physical infrastruc-ture, although expansion to meet the needs of thenew constitution will also provide opportunities foraddressing the infrastructure needs of the legisla-ture.

(c) Number of committees: Kenyas legislature has morethan 30 committees, some of which were createdout of previously larger committees. For example,

1983 amendments to the Standing Orders split thePublic Accounts Committee into two: a leaner, 10member Public Accounts Committee and a newPublic Investments Committee. However, in light ofthe new constitution, new standing orders are beingprepared and the committee system needs to be ra-tionalised to reect the wider powers of Parliamentas well as the new functions and roles. Compara-tive information from other jurisdictions can informdecision-making in Kenya: the House of Commonshas 34 Select Committees and between them, the


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two houses of the United Kingdoms Parliamenthave 100 committees of which fourteen are JointCommittees. The US House of Representatives has25 committees while the Uganda Parliament has 25. The South Africa National Assembly has a total of 34committees whilst the National Council of Provinceshas 13, for a total of 47 committees. Thus, numbersvary widely across legislatures and it would seemthat the key issue is to make sure that all aspectsof parliamentary work are covered. However, it isclear that more committees will denitely be neces-sary and, as important, under the new dispensationmore committees will create more opportunities forpublic participation.

(d) Support and cooperation of government agencies:One factor that has sapped the performance of par-liamentary committees has been lack of supportfrom the government. However, the new consti-tution has transformed the role of Parliament andgiven it more powers than before especially in theareas of oversight and budget. Now, more than be-fore, Parliament will rely heavily on the co-operationof government agencies if it is to play its rightful rolein relation to, especially, the budget process. Chang-

es to existing laws, especially the Official Secrets Actand the National Assembly (Privileges and Immuni-ties) Act are necessary. Both laws bar public officialsfrom disclosing information to Parliament. However,it is clear that the omnibus and vague provisions ofthe Official Secrets Act do not square with the trans-parency guarantees of the new constitution and,whilst there may be a legitimate national securityinterest in certain non-disclosure, it is evident thatthe Official Secrets Act goes too far.

(e) Integrity issues: An effective committee systemdepends on effective leadership and strong ethi-cal grounding. The current committee system of

the National Assembly of Kenya and the Assemblyitself have been described as prone to kickbacks 15,and the process of the writing and adopting of keycommittee reports, the most lucrative 16 part of thiskick-back system. A recent report of a study by theKenya chapter of Transparency International singlesout abuse of committee trips 17 citing the large sizesof delegations, poor management of the trips, illogi-cal and expensive routing and the sheer embarrass-ment these trips have occasioned to the Assemblyand the country. 18 The report also cites an existing

reward system in the composition of committeesand abuse of office by members of investigatorycommittees through harassing public officials andsoliciting favours. There have been allegations of toomuch irtation between some chairs of committeesand representatives of special interests and officialsof transnational corporations when legislative meas-ures affecting the interests of the latter are beforeParliament.19 There are also allegations of rampanthorse-trading in these committees where MPs agreeto do one thing or another to further their personal,

business or other vested interests. Complaints andallegations of impropriety within committees andthreats on lives of members are arising more fromlegislators than from the public. Members are pub-licly alleging that colleagues are openly engaging inbribe-taking and illicit relations with individuals be-ing probed by committees of the House. This seemsto lend credence to the adverse media reports andmay have a negative impact on the integrity of thecommittees and Parliament as a whole.

15 Transparency International (Kenya), A Report on Integrity: A Study of the Kenyan Parliament March 2010, p. 6.

16 Bribery in Kenyas Parliament ,The Daily Nation, 19 May 2009.

17 Transparency International (Kenya), A Report on Integrity, Op. cit. p. 35.

18 Ibid.

19 Migai Akech, Abuse of Power and Corruption in Kenya: Will the New Constitution Enhance Government Accountability?, Indian Journal of Global Legal Studies (Vol. 18 # 1), p. 2.


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(f) Time available for consideration of matters under-mines quality: The number of legislative and policymeasures that committees have to address is im-

mense, reducing the amount of time available fordoing so effectively. There is, therefore, inadequatescrutiny of bills and policy proposals going beforecommittees. Consequently, their quality cannot al-ways be assured. Shortage of time impairs the abil-ity of committees to effectively engage the public. Though many of the challenges related to time area result of growing workload, some are a result ofa poorly structured committee system in terms ofhow the work and hearings are organised. Manycommittee hearings are too focused on scoring

political points. Allegations of corruption againsta government agency in the media are often theoccasion for the immediate launch of committeeinvestigations. Given that allowances are paid forthese sittings, the incentive structure clearly encour-ages more rather than less of these shing investi-gations. A more effective approach would entail anexpert investigation- say undertaken by the Audi-tor General- followed by a committee hearing withpublic participation on the ndings of such an ex-pert investigation.

(g) Gaps in the infrastructure of participation: Thecase of delegated legislation: Delegated legislationsaves on parliamentary time by vesting executiveagencies with rule-making powers. Delegatingrule-making powers to such agencies allows themto address technical or detailed issues not appropri-ate for primary legislation; it provides exibility foramendment especially if the measures proposed areof a short-term nature and promotes experimenta-tion, since the rules can be easily amended if dys-

functional. However, there is a major democraticdecit in the process of delegated legislation: rstly,there is less parliamentary scrutiny of delegated leg-islation; secondly, delegated legislation, in effect,transfers legislative authority to the executive, po-tentially eroding separation of powers and nally, itprovides opportunities to circumvent the will of thelegislature.

Under the old constitution, no specic provision forparliamentary scrutiny of delegated legislation ex-isted. Article 94 (6) of the new constitution cures thisdefect. It provides for the control of delegated legis-lation by requiring any Act of Parliament or countylegislation delegating the power to make bindinglegislation to expressly specify the purpose and objectives for which that authority is conferred, the lim-its of the authority, the nature and scope of the lawthat may be made, and the principles and standardsapplicable to the law made under the authority. Thisprovision meets the criticism around the democraticdecit inherent in delegated legislation. Unlike theSouth African constitution which specically re-quires that delegated legislation be accessible and

that it be tabled in Parliament, the Kenyan consti-tution does not specically require accessibility ofsubsidiary legislation, but this requirement is never-theless implicit in the requirements for transparencyand public participation.

There are three key issues involving delegated legisla-tion:1. There is no systematic mechanism for review of sub-

sidiary legislation to ensure that it complies with theprimary legislation. The implication is that the con-

stitutionality of delegated legislative powers cannotbe assured.

2. There is no constitutional provision on the scrutinyof subsidiary legislation. An inherent review power isthe requirement that all subsidiary legislation mustcomport with the primary legislation. The Interpre-tation and General Provisions Act, however, providesthat if a resolution is passed by the Assembly, withintwenty days on which it next sits after the rule orregulation is laid before it, that the rule or regulationbe annulled, it shall thenceforth be void. However,this will not affect anything already done under therule or the power to make fresh rules.

3. There is no statutory denition of delegated legis-lation. In South Africa, for instance, the constitutionrequires the scrutiny of proclamations, regulations,and rules. Questions have arisen whether proclama-tions form part of delegated legislation. This is im-


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portant because ministers have been appointingpersons to public office through proclamations inthe Kenya Gazette. If the proclamations form part ofsubsidiary legislation, it follows that they can be re-viewed by the legislature. If not, there is no obviousmechanism for their review.

Part 4: Policy and legal reformsto promote public participationin oversight committees

Parts 1 to 3 have identied the issues that impact on

public participation in the work of committees of Parlia-

(a) Approaches to participation in Oversight Committees

Type of committee Nature of mandate Scope of public involvement Tools for public participation

Standing LegislativeCommittees

Scrutiny of departmentalpolicies, budgets and bills

Open hearings

Right to observe, give evidenceand offer views

Written submissions

Oral presentations; expertopinions; public petitions;

Public broadcasts.

Standing Non-LegislativeCommittees

Internal parliamentary business Open hearings; right to observeand offer views

Written submissions; oralpresentations

Public broadcasts

Ad Hoc Committees ofInquiry

Determined by resolution of thehouse

Open hearings; limited closedhearings

Written submissions; expertopinion; public petitions; publicbroadcasts (or rebroadcasts withredactions in case of closedhearings)

Special Purpose Committees Detailed in law e.g.Constitutional ImplementationOversight Committee

Open hearings; right to observeand offer views

Written submissions; expertopinion; public broadcasting;public petitions

Optional Committee onImpeachment;

Open hearings; right to observelimited closed hearings

Public broadcasting

Rebroadcast with redactions in

the case of closed hearings Joint Committees Determined by joint resolution

establishing the committeeOpen hearings; right to observeand offer views

Public broadcasting; writtensubmissions; expert opinions;public petitions.

Sub-Committees ofParliamentary Committees

Determined by decision ofparent committee

Presumption that same rulesof participation as parentcommittee apply

Presumption that same toolsas those for parent committeeapply.

May vary according to subjectmatter (say public security)

ment. This part looks at the different forms that partici-pation takes and the reforms needed to improve thatparticipation.

What the appropriate type of participation is, dependson the nature and purpose of the committee. Com-mittees with a general legislative and policy mandate,such as departmental committees, will be differentfrom special purposes committees such as a senatorialcommittee on impeachment, which is in effect a trial.Participation may entail submissions, evidence givingand observation in the former, but perhaps only obser-vation in the latter. The table below outlines the variousforms that participation takes in different types of com-

mittees.


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(b) Reforms to improve participationAs the table above indicates, there is both ample scopefor public participation in virtually all committees of

Parliament and a wide range of tools for the public toparticipate. However, for this participation to be effec-tive a number of reforms are necessary.

1. General Principles of Public Access and Participa-tion: In order to ensure that parliamentary processesare open to scrutiny, the on-going amendments ofthe Standing Orders ought to include general prin-ciples of openness. Such principles would include:

i. The presumption of open committee hearings: In the

absence of specic and compelling constitutionalor legal basis for condentiality or secrecy, all com-mittee hearings shall be open to public observationand participation;

ii. The principle of limited disclosure of condential reports: Even committee meetings that are con-dential shall be recorded and if appropriate, thoserecordings shall- to the extent possible- be releasedto the public with the secret or condential informa-tion redacted as appropriate;

iii. The presumption of access to minority reports: Where a minority group within a committee writesa minority report dissenting from the conclusionsof the majority, the minority report shall be a publicdocument;

iv. The right to know the basis of classication of infomation: When a government agency declares cer-tain information classied and therefore not acces-

sible to any committee, Parliament and the publichave a legitimate need to know: a) the basis of theclassication; b) the duration of the classicationand c) the level of the classication (whether TopSecret, Secret or Restricted.).

2. Access to information: Public participation andengagement with the legislature depend on theamount and quality of information available to thepublic, both as to the inner workings of the legisla-ture and the general government. As pointed out

earlier, quite apart from the constitutional provisionson access to information, Parliament has specicconstitutional obligations to ensure public partici-pation in its affairs. The implicit pre-condition for thedischarge of this obligation is the requirement thatthe administration of Parliament provide the publicwith the information that will facilitate that partici-pation. With a view to meeting the obligation as topublic participation, the legislature needs to addressexisting limitations on access to information withinthe legislature. These limitations are both legal and

technological.


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Other reforms have moved apace: The National Assem-bly House Live Broadcast project has expanded withthe Kenya Communications Commission granting theNational Assembly broadcast licences with the expec-tation that, eventually, the National Assemblys ownmedia corps will take responsibility for the live cover-age. 22 Though these reforms are steps in the right direc-tion, more needs to be done:

Make the online resources interactive: Though thewebsite is up and running, the online resources arenot interactive. Parliament can leverage technologyto improve the level of interaction between mem-bers and committees, on the one side, and the pub-

lic and Parliament on the other.

User-friendly access: Though some good contentexists on the National Assemblys site, these onlineresources are not always user-friendly to access andcontent developers, editors and copy-writers needto be recruited to improve access through betternavigation aids and easier to digest presentationstyle. In addition, even though the National Assem-bly has put out a large amount of information, oftenthe contextual information needed to allow readers

and followers to make sense of the posted informa-tion is missing. In this regard, more background in-formation, perhaps in a simplied version, would goa long way towards improving public access to andpublic understanding of the affairs of the legislature.

Improve outreach and communication: The opengovernment requirements of the new constitu-tion oblige Parliament to take measures to increaseawareness and opportunities for public participa-tion through proactive outreach programmes.

3. On integrity issues:Allegations of integrity failuresof individual members are a blot on the perfor-mance of the Parliament and if not addressed, will

eventually sap public condence in the legislature. Though MPs- and Senators- will have a general im-munity from prosecution and no civil or criminalproceedings may be instituted against any memberfor words spoken before, or written in a report to,the Assembly or a committee, it is a criminal offencefor a member or a senator to accept or receive anybribe, gift or reward so as to promote any matterbefore the Assembly, the Senate or any committee.However, the penal provisions of the Public OfficerEthics Act which also cover Members of Parlia-

ment, are weak. What is currently lacking are effec-tive tools for identifying and rooting out bribery andrelated claims. Questions of integrity are politicizedand the Parliamentary Service Commission is inap-propriate as an oversight mechanism for policingintegrity. To close the gaps in the current system thefollowing reforms are proposed:

i. Alignment of relevant laws with Chapter 6 of thConstitution: In order to comply with Chapter 6 re-quirements, the Privileges and Immunities Act, the

Public Officer Ethics Act and the Standing Ordersneed to be amended to strengthen disclosures andthe way in which members interests are reportedand scrutinized. These amendments should alsospecify penalties for non-compliance.

ii. Register of Members Interests: A register of mem-bers interests should be opened and all membersof the National Assembly and Senators should beobliged to state their assets as well as companies inwhich they or their interests have interests.

22 By introducing live media coverage of its proceedings, Kenya joined 60 other countries around the world that have enabled media coverage of parliamentary proceedings. See,Mwaura Kimani, Kenya: Parliament ushers in the Era of TV Live Coverage, http://allafrica.com/stories/200806231976.html (June 2008).


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iii. Gifts to Members: Gifts to members of a speciedvalue should be reportable and of a higher thresh-old prohibited. In particular, private companies

sponsorship of parliamentary activities should beprohibited as a corrupt practice.

iv. House Ethics Committee: A House as well as SenateCommittee on members ethics - which is presump-tively open to the public- should be established andmembers of the public should have the right to pe-tition it when there is credible basis for impugningthe integrity of a particular Member of Parliament.

4. On physical and institutional infrastructure: The

re-organization of Parliament to take account ofthe new constitution must include the develop-ment of physical facilities to meet the needs of thelegislature. Two areas are especially critical: provi-sion of adequate facilities for both the National As-sembly and the Senate and; provision of suitableand accessible space for all committees as well assub-committees.

The physical requirements of the House should besupplemented with adequate human and insti-

tutional skills. Committees must be supported toeffectively receive, analyze and work on the sub-missions that come from the public, experts andgovernment departments. In particular, committeehearings should include report-back requirementson the nature and scope of public consultations thathave taken place on any specic measures consid-ered by each committee.

5. On government support for committees, especiallyon scal matters: The new scal management

process is modeled on that of the United Statesof America. This means that, though the formal re-

sponsibility for drafting the budget remains withthe Minister for Finance, Parliament will drive thebudget process. To discharge this burden, Parlia-ment has established the Budget Office, which hasa core of technical staff to support parliamentarycommittees in scrutiny and formulation of coun-ter-proposals. The Speaker will play an importantrole in regulating this new relationship betweenthe two arms of government and in order to do soon an informed basis, he or she needs to receivespecic support in this regard. To ensure that thisprocess works as constitutionally envisioned, thefollowing measures are proposed:

i. Appointment of a high-level advisor for the Speak The responsibility of the advisor is to complementthe role of the Clerk in assisting the Speaker in un-derstanding and playing a role in the interface be-tween the government and the National Assemblywith regard to scal management.

ii. Directive to government departments to comply wi parliamentary orders: Before the next elections in2013, the government should issue a general direc-tive to all government departments on the ramica-

tions of the new constitutional dispensation on thebudget process and spell out their responsibilitiestowards Parliament generally and towards parlia-mentary committees in particular.

iii. Fiscal management focal point: The ParliamentaryBudget Office should establish and adequatelyequip a Fiscal Management Focal Point to lead theprocess of budget hearings. Working with both theBudget Office and the various departmental com-mittees, the Fiscal Management Focal Point will co-

ordinate the Budget Offices programme of publicconsultations and hearings.


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6. Improving public and parliamentary scrutiny ofdelegated legislation: The gaps in the scrutiny ofdelegated legislation and the resulting democratic

decit highlight the urgent need for a mechanism tosystematically review delegated legislation againstthe law-making powers contained in the relevantprimary legislation. The necessary reforms in this re-gard include the following:

i. Scope of coverage: The denition of subsidiary leg-islation is now urgent. Whether this will includeministerial proclamations and directives should beclaried either through the relevant primary legisla-tion or, more generally, through amendments to theInterpretation and General Provisions Act, Chapter 2,the Laws of Kenya.

ii. Providing access to subsidiary legislation: Thoughpublic access to subsidiary legislation is not directlyrequired by the constitution, the Interpretation andGeneral Provisions Act provides that all rules andregulations made under an Act shall, unless a con-trary intention appears in the Act, be laid before theNational Assembly without unreasonable delay. This

provision, together with the transparency guaran-tees of the constitution suggest that it is necessaryto furnish a mechanism for public scrutiny of sub-sidiary legislation. This can be done in two measures:

a. An appropriate amendment of the Interpretationand General Provisions Act that provides for a onemonth public commentary period before subsidiarylegislation comes into force.

b. An on-line parliamentary index of all subsidiary leg-islation as a reference point on the available subsidi-ary legislation.

iii. Scrutiny of subsidiary legislation: Though a com-prehensive review of all subsidiary legislation isnot feasible at this point, a number of intermediatesteps short of an overhaul are possible and should

be adopted. These would include the following:a. Parliament should establish whether the subsidi-

ary legislation currently in force was laid before theHouse as required by law and if not, require that it beso laid.

b. On an annual basis, the office of the Clerk, legislativeservices, should provide an index showing the dateson which subsidiary legislation was laid before theHouse. This will allow interested people to indepen-dently monitor compliance with this legal require-ment, and to effect scrutiny.

c. As in South Africa, the Interpretation and GeneralProvisions Act, should provide for the legislative re-view of proclamations made under subsidiary legis-

lation. In practice, this issue has arisen when author-ities, such as ministers, have purported to exercise powers under primary or subsidiary legislation tomake appointments to public office, or decide ondates for the happening of a given event. One suchcase was the controversial appointment by the Presi-dent of Mr. Justice Aaron Ringera for his second termas Director of the Kenya Anti-Corruption Authority. Although the Legal Affairs Committee entertainedthe matter, it had no clear legal mandate to do so.It would be useful if this mandate was clearly pro-vided through an amendment of the Interpretationand General Provisions Act.

d. Finally, the rules of court made by the Chief Jus-tice or the Rules Committee should be availablefor wider public scrutiny. A special procedure that preserves the autonomy of the judiciary as an independent institution but also allows parliamentaryand public scrutiny of the rules should be designedand operationalized.

7. Public access and participation in devolved gov-ernments: The principles of openness and partici-pation as well as the reforms proposed in this briefapply- with appropriate modications, based on theconstitutional mandates of county governments, tocommittees of County Assemblies.


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AcknowledgmentAfriCOG thanks team members Charles Wanguhu, Michael Orwa, Maureen Kariuki, Beatrice Odallo, Anyona Obutu, Carole Theuri,Shwetaketu Radia, Stephanie Wairimu, Kadenge Kidiga, Noreen Wahome and Maureen Gachomo for their commitment to ourwork.

AfriCOG also thanks Wachira Maina, Kipkemoi arap Kirui, George Kegoro for their contribution to our parliamentary work.

The publication of this report is made possible by the support of the American and British people through the United StatesAgency for International Development (USAID) and Department for International Development (DFID).

We are also grateful to the Open Society Initiative for East Africa (OSIEA) for their support to our work.

The views expressed in this report are those of AfriCOG alone and do not necessarily reect the views of USAID, UKAID, DFID orSUNY Kenya.

September 2012

Public Participation andParliamentary OversightLegal Reforms and Policy Options

Public Participation and Parliamentary Oversight Legal Reforms and Policy Options

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