Broken Mandate: Beyond The Mace In A Decade of Failure and Constitutional Disregard

The Parliament of Kenya, a bicameral legislature comprising the National Assembly and the Senate, is constitutionally mandated to represent the people, legislate, and exercise oversight over the executive and other state organs. However, a comprehensive analysis of its performance since the promulgation of the 2010 Constitution reveals a troubling pattern of shortcomings, leading to a significant failure in fulfilling its mandate and, consequently, failing to meet the needs of the Kenyan populace. This article will delve into various facets of this failure, examining how Parliament has fallen short in its legislative, oversight, and representative roles, and critically assessing its adherence to the foundational principles enshrined in the Constitution.

The core of Parliament's failure can be traced to several interconnected issues, including a lack of independence, pervasive corruption, inadequate public participation, and a consistent disregard for constitutional provisions. These issues have manifested in various ways, from the passage of laws that undermine fundamental rights to the inability to hold the executive accountable and the prioritisation of partisan interests over the welfare of citizens. One of the primary responsibilities of Parliament is to enact laws that promote good governance, protect human rights, and foster socio-economic development. However, the Kenyan Parliament has frequently been criticised for its legislative output, which often falls short of these ideals.

A recurring criticism levelled against the Kenyan Parliament is its propensity to pass legislation that is subsequently challenged and, in many cases, declared unconstitutional by the courts. This indicates a fundamental failure in the legislative process, suggesting either a lack of thorough constitutional scrutiny during bill drafting and debate or a deliberate disregard for constitutional principles. For instance, the Security Laws (Amendment) Act, 2014, was heavily criticised for infringing on fundamental freedoms, including freedom of expression and assembly. While some provisions were upheld, others were struck down by the High Court, highlighting Parliament's failure to adhere to constitutional safeguards during the enactment process. Similarly, the Statute Law (Miscellaneous Amendments) Bill, 2018, which sought to amend various laws, faced legal challenges due to concerns about its constitutionality and the process of its enactment. Such instances demonstrate a systemic problem where Parliament either lacks the capacity or the political will to ensure that all legislation conforms to the supreme law of the land. This not only wastes public resources but also creates legal uncertainty and undermines the rule of law.

The Constitution of Kenya 2010 places a strong emphasis on public participation in the legislative process, stating in Article 10 that national values and principles of governance include "public participation."However, Parliament has consistently been accused of paying lip service to this principle. Many crucial bills are rushed through the legislative process with minimal or superficial public engagement. Often, public participation forums are poorly publicised, held in inaccessible locations, or conducted in a manner that discourages meaningful input from citizens and civil society organisations. For example, during the debate on the Finance Bill, 2024, concerns were raised about the limited time allocated for public input and the perceived disregard for submissions made by various stakeholders. This failure to genuinely involve the public in law-making leads to legislation that does not adequately reflect the needs and aspirations of Kenyans, and can even be detrimental to their interests. It also erodes public trust in parliamentary institutions and democratic processes.

Another significant legislative failure is the protracted delay in enacting crucial legislation mandated by the Constitution. The 2010 Constitution established various timelines for enacting specific laws to operationalise its provisions. Many of these deadlines have been missed, sometimes by several years, without adequate justification. For example, the Community Land Act, which was crucial for addressing historical land injustices and securing community land rights, took years to be enacted after the constitutional deadline had passed. Similarly, legislation to implement the two-thirds gender rule, as stipulated in Article 27(8) of the Constitution, has been a persistent challenge, with Parliament repeatedly failing to pass the necessary laws, leading to constitutional crises and court interventions. This delay not only undermines the spirit of the Constitution but also deprives Kenyans of the benefits of fully implemented constitutional provisions, hindering progress in various sectors.

There is a pervasive perception, often supported by evidence, that Parliament frequently prioritises the interests of influential individuals, political elites, or specific lobbies over the broader public good. This manifests in the passage of laws that create loopholes for corruption, grant undue advantages to particular businesses, or protect the political class from accountability. The Constituency Development Fund (CDF) Act, while intended to foster local development, has been a subject of controversy, with concerns about its constitutionality and its susceptibility to misuse and political patronage. Critics argue that the continued existence and expansion of such funds, despite court rulings questioning their legality, demonstrate Parliament's self-serving tendencies. This legislative capture by special interests undermines the integrity of the law-making process and further alienates citizens who feel their voices are not heard.

Parliament's oversight role is critical for ensuring accountability, transparency, and good governance within the executive and other state organs. However, the Kenyan Parliament has largely been ineffective in this regard, often appearing to be co-opted by the executive or paralysed by partisan divisions. The Constitution empowers Parliament to scrutinise government policies, expenditure, and the conduct of public officers. However, Parliament has often failed to hold the executive accountable for corruption, mismanagement, and human rights abuses. Instances of grand corruption, such as the National Youth Service (NYS) scandals or the Kenya Medical Supplies Authority (KEMSA) scandal, have prompted parliamentary committees to conduct investigations; however, these inquiries often conclude without tangible consequences for those implicated. Reports are tabled, recommendations are made, but concrete action, such as prosecution or dismissal of culpable officials, remains elusive. This lack of follow-through creates a culture of impunity, where public officials can engage in malfeasance without fear of parliamentary sanction. The executive's dominance over Parliament, often through party loyalty and patronage, significantly weakens the latter's ability to act as an independent check on the executive.

Parliament has various tools at its disposal for oversight, including questions to ministers, motions, debates, and committee investigations. However, the effective utilisation of these tools has been inconsistent. Questions to ministers often go unanswered or are met with evasive responses. Debates, while sometimes lively, frequently descend into partisan bickering rather than constructive engagement on critical national issues. Parliamentary committees, despite having significant powers to summon witnesses and demand documents, often fail to exercise these powers robustly. For example, while numerous parliamentary committees have investigated various scandals, the executive frequently ignores their recommendations, and Parliament itself rarely takes further action to enforce its resolutions. This demonstrates a systemic weakness in Parliament's ability to translate its oversight findings into meaningful action.

Parliament's power of the purse is arguably its most potent oversight tool. It has the responsibility to approve the national budget and scrutinise government expenditure. However, budgetary oversight has been characterised by weaknesses. Parliament often approves budgets with insufficient scrutiny, particularly regarding large-scale projects and recurrent expenditure. Concerns have been raised regarding the lack of detailed analysis of budget proposals, the rubber-stamping of executive requests, and the ineffective monitoring of budget implementation. The Auditor-General's reports frequently highlight massive irregularities, wastage, and corruption in government spending; yet, Parliament's response to these damning reports is often inadequate, with little evidence of sustained pressure for accountability or the recovery of misappropriated funds. This failure in budgetary oversight directly contributes to financial mismanagement and corruption, ultimately impacting the delivery of public services to Kenyans.

The Constitution established various commissions and independent offices to safeguard democracy, human rights, and good governance. Parliament has a crucial role in overseeing these institutions, including approving their budgets and scrutinising their performance. However, Parliament has often been criticised for its inconsistent oversight of these bodies. At times, it has been accused of interfering with their independence, while at other times, it has failed to protect them from executive overreach or to hold them accountable for their mandates. For instance, the National Cohesion and Integration Commission (NCIC), despite its critical role, has faced challenges in its effectiveness, partly due to a perceived lack of robust parliamentary support and oversight. This inconsistent approach undermines the effectiveness of these crucial institutions and weakens the overall governance framework.

The primary role of Parliament is to represent the diverse interests of the Kenyan people. However, various factors have contributed to Parliament's failure in this fundamental aspect.

A pervasive criticism of Kenyan parliamentarians is their tendency to prioritise party loyalty, personal enrichment, and political expediency over the welfare of their constituents and the national interest. Debates and voting patterns often reflect party lines rather than a genuine consideration of the issue's merits or the people's needs. This is particularly evident in instances where MPs vote to increase their own salaries and allowances, even amidst widespread public outcry and economic hardship. The Salaries and Remuneration Commission (SRC), established to regulate public sector remuneration, has often found its recommendations challenged or ignored by parliamentarians seeking higher pay, demonstrating an apparent conflict of interest and a disregard for fiscal prudence. This self-serving behaviour erodes public trust and reinforces the perception that Parliament is a vehicle for personal gain rather than a platform for public service.

Despite constitutional provisions aimed at enhancing representation, Parliament has struggled to effectively represent marginalised groups, including women, youth, persons with disabilities, and ethnic minorities. While the Constitution mandates a two-thirds gender rule, Parliament has repeatedly failed to enact the necessary legislation to achieve this goal, resulting in a persistent underrepresentation of women in elective positions. Similarly, the representation of youth and persons with disabilities, while provided for through nominated slots, often faces challenges in ensuring their voices are genuinely heard and their concerns adequately addressed in policy and legislation. The nomination process itself has been criticised for being susceptible to political patronage, rather than genuinely empowering marginalised groups. This failure to ensure inclusive representation means that the perspectives and needs of significant segments of the population are often overlooked in the legislative and policy-making processes.

Many Kenyans feel a significant disconnect between themselves and their elected representatives. This is often attributed to the infrequent engagement of MPs with their constituents outside of election campaigns, the perceived inaccessibility of their offices, and the focus on national political battles rather than local issues. While MPs are expected to hold regular public forums and engage with their constituents, the reality often falls short of expectations. The Constituency Development Fund (CDF), while intended to bring development closer to the people, has also been criticised for creating a patronage system where MPs are seen as dispensers of favors rather than legislative representatives, further blurring the lines of their primary mandate. This disconnect results in a lack of accountability at the grassroots level and a sense among citizens that their concerns are not being adequately addressed in Parliament.

The internal workings of political parties and the strictures of party discipline often stifle independent thought and debate within Parliament. MPs are frequently expected to vote along party lines, even if it contradicts their personal convictions or the interests of their constituents. This limits the vibrancy of parliamentary debate and reduces the legislative process to a mere formality, where decisions are often made in party caucuses rather than on the floor of the House. The power of party leaders to whip members into line, often through threats of de-whipping or denial of committee positions, undermines the individual mandate of MPs to represent their constituents independently. This lack of internal democracy within parties translates into a less effective and less representative Parliament.

Beyond specific legislative, oversight, and representative failures, a fundamental and overarching criticism of the Kenyan Parliament is its consistent failure to adhere to the letter and spirit of the Constitution of Kenya 2010. This disregard for the supreme law has manifested in several critical areas.

A particularly egregious failure of Parliament has been its occasional disregard for court orders and rulings, particularly those that challenge its legislative actions or demand specific constitutional implementations. This undermines the principle of the rule of law and the separation of powers, which are cornerstones of the Constitution. For example, the repeated failure to enact legislation to implement the two-thirds gender rule, despite court orders directing it to do so, led to a constitutional crisis and calls for the dissolution of Parliament. Similarly, instances where Parliament has attempted to legislate on matters that fall within the purview of county governments, despite clear constitutional demarcation of functions, have been challenged in court, highlighting a disregard for the principle of devolution. Such actions demonstrate a worrying trend of parliamentary defiance towards the judiciary, which is constitutionally mandated to interpret and uphold the Constitution.

While the Constitution establishes a clear separation of powers between the executive, legislature, and judiciary, Parliament has at times encroached upon the functions of other arms of government or allowed itself to be unduly influenced by the executive. The executive's perceived dominance over Parliament, particularly through the ruling party's majority, often leads to Parliament acting as a rubber stamp for government policies rather than an independent check. Conversely, there have been instances where Parliament has attempted to direct the judiciary or interfere with judicial processes, thereby undermining judicial independence. This blurring of lines and the failure to maintain a robust separation of powers weaken the checks and balances essential for good governance and constitutionalism.

Article 10 of the Constitution outlines national values and principles of governance, including patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised, good governance, integrity, transparency and accountability, and sustainable development. Parliament, as a key state organ, is expected to embody and promote these values. However, its actions have often contradicted these principles. Instances of corruption among parliamentarians, lack of transparency in parliamentary proceedings, and the prioritisation of partisan interests over national unity all demonstrate a failure to uphold these foundational values. The persistent struggles with corruption within Parliament itself, as highlighted by various reports and public perceptions, directly contravene the principles of integrity, transparency, and accountability.

The 2010 Constitution ushered in a devolved system of government, transferring significant powers and resources to county governments. Parliament plays a crucial role in facilitating the successful implementation of devolution through the enactment of appropriate legislation, allocation of budgetary resources, and effective oversight. However, Parliament has been criticised for its shortcomings in this area. There have been concerns about delays in passing legislation to clarify the roles and responsibilities of national and county governments, inadequate budgetary allocations to counties, and attempts by the national government, often with parliamentary acquiescence, to claw back devolved functions. The Division of Revenue Bill, a critical piece of legislation determining the allocation of funds between national and county governments, has often been a source of contention, with counties frequently arguing that Parliament does not adequately protect their financial interests. This failure to fully embrace and facilitate devolution undermines a key pillar of the Constitution, which aims to bring governance closer to the people.

The Parliament of Kenya, despite its constitutional mandate and the high hopes that accompanied the promulgation of the 2010 Constitution, has largely failed in its duties to the Kenyan people. Its legislative output has often been unconstitutional, rushed, and lacking in genuine public participation. Its oversight function has been weak, allowing executive impunity and contributing to widespread corruption. Its representative role has been compromised by the prioritisation of self-interest, party loyalty, and a disconnect from the electorate. Most critically, Parliament has consistently failed to adhere to the letter and spirit of the Constitution, disregarding court orders, undermining the separation of powers, and falling short of upholding national values.

The consequences of these failures are profound. They include the weakening of democratic institutions, erosion of public trust in governance, the perpetuation of corruption, and hindrance to socio-economic development. For Kenya to realise the promise of its transformative Constitution, a fundamental shift is required within Parliament. This necessitates greater independence from the executive, enhanced internal democracy, a renewed commitment to public participation, robust adherence to constitutional principles, and a genuine prioritisation of the national interest over partisan and personal gain. Without such a transformation, the Parliament of Kenya will continue to fall short of its mandate, and the Kenyan people will continue to be failed by the very institution designed to represent and protect them.