Election petition puts the Cabinet at a crossroads
Parliament Buildings. The Constitution bars members of parliament from serving as Cabinet secretaries. Photo/File
What you need to know:
President Kibaki is facing the prospect of working with a sketchy Cabinet or reconstituting a new one to take the government through the transition period.
The Constitution bars anyone serving in the legislature from holding a position in the executive arm of government.
This means that those serving as ministers but have been elected as MPs must relinquish those positions once sworn into office.
The execution of Kenya’s social and economic policy is entering its most difficult moment in the wake of the disputed March 4 election.
President Kibaki, who is retiring after finishing his constitutional two terms in office, is facing the prospect of working with a sketchy Cabinet or reconstituting a new one to take the government through the transition period and avoid breaching key provisions of the Constitution.
At the centre of the dilemma is the principle of separation of powers in the Constitution that bars anyone serving in the legislature from holding a position in the executive arm of government.
This means that those serving as ministers in the outgoing Grand Coalition government but have been elected as Senators or Members of Parliament must relinquish those positions once sworn into office to avoid breaching the supreme law.
The law demands that Parliament must convene within 30 days after the General Election, leaving ministers who have been elected to the 11th Parliament with less than two weeks in office.
The looming deadlock arises from the fact that the framers of the law expected that a new president would take office within the 30 days and appoint his Cabinet to take over from the outgoing team, making for a smooth transition.
But that is unlikely to happen because the defeated presidential candidate for the Coalition for Reforms and Democracy (Cord) Raila Odinga has rejected the outcome of the election and moved to the Supreme Court, alleging irregularities in the conduct of the poll.
The Supreme Court is expected to hear the petition and make a decision by March 30, only four days before expiry of the 30 days within which Parliament must sit.
A Supreme Court decision upholding the Jubilee Alliance candidate Uhuru Kenyatta’s victory could reduce the period of uncertainty.
But should the outcome of the March 4 poll be nullified and a new election ordered, parliament will have to convene before a new cabinet is appointed removing nearly half of the ministers from office.
Attorney-General Githu Muigai has stated that position in a legal opinion offered last week, but some ministers maintained that the Speaker of the National Assembly could make a special ruling allowing MPs to continue serving as ministers until a new Cabinet is appointed.
“The Speaker may have to make this ruling. I know the Constitution bars members of parliament from serving as Cabinet secretaries but the President has the power in law to reallocate portfolios to any Cabinet minister who has not been elected to any of the Houses of Parliament,” said Finance minister Njeru Githae, who is a lawyer by training.
That position may, however, prove difficult as it would require each of the about 20 ministers who lost their seats to take charge of two portfolios. Nearly half of the 42-member Grand Coalition Cabinet have been elected to the Senate or the National Assembly and will have to leave office once sworn in.
Mr Githae proposes that the situation be handled like a pure parliamentary system where ministers continue in office on a caretaker basis in the event that a Prime Minister resigns until there is an election and swearing in of a new one.
Other legal experts said the constitutional provision barring MPs from serving as Cabinet secretaries must remain suspended until a new president takes office — a position that would give the MPs-elect room to continue serving as ministers.
Article 152 (3) of the Constitution states that a Cabinet secretary shall not serve as a Member of Parliament but Article 2 (1) (c) of the Sixth Schedule suspends Articles 129 to 155 until after the first General Election.
While some lawyers, including the chairman of the Commission on the Implementation of the Constitution Charles Nyachae, have held that the first election referred to in law was held on March 4, other legal experts say the election is not over until a new president is sworn into office.
The law also preserves the National Accord and Reconciliation Act, 2008, which continues to operate until the first election is held under the new Constitution.
Should an advisory opinion rendered by Prof Muigai to the Head of Public Service Francis Kimemia stand, 20 ministers and 17 assistant ministers could continue in office even after taking the oath as MPs or Senators.
Mr Nyachae had questioned the legality of Prime Minister Raila Odinga, Vice-President Kalonzo Musyoka and grand coalition government ministers being in office after the March 4 General Election.
Mr Nyachae said in a letter to President Kibaki that the officers were illegally in office after the March 4 election but Prof Muigai maintained that they were in office legally until a new President is sworn in. Mr Nyachae was unavailable for comment for this story as his mobile phone was switched off.
Key ministries that are likely to be affected in case current ministers are barred from holding office upon being sworn in as MPs or Senators are Internal Security, Defence, Energy, Lands, Immigration, Medical Services, Livestock, Trade, Defence, Tourism and Public Works.
Others are Planning, National Development and Vision 2030 and Fisheries where Wycliffe Oparanya and Amason Kingi were elected governors for Kakamega and Kilifi counties respectively.
Security services, both internal and external could be severely compromised without substantive ministers in office. Kenya is grappling with a wave of insecurity linked to local militia groups such as the Mombasa Republican Council and Somali-based Al Shabaab terrorists.
Investments in the Energy sector, especially with the recent discovery of oil in Turkana County and implementation of key Vision 2030 flagship projects such as the Lamu Port, South Sudan, Ethiopia Transport corridor may also suffer in the event of a power vacuum.
In the past the President appointed ministers and their assistants from among members of parliament. The ministers largely served as political heads of ministries and exercised power through Cabinet decisions.
Permanent Secretaries, who will henceforth be known as Principal Secretaries have been in charge of the day to day running of ministries and departments being the chief accounting officers.
The new Constitution vests enormous powers to of cabinet secretaries in running the ministries. The secretaries, principal secretaries and other State officers such as ambassadors and high commissioners must however be subject to parliamentary vetting before appointment.
