Recently, President William Ruto’s government faced criticism for its failure to secure parliamentary approval for the Kenyan police operation in Haiti. A temporary court injunction delayed the operation’s start, and sparked wider debates about potential state capture. Some commentators have drawn parallels to the parliament’s failure to properly scrutinise the contentious 2023 Finance Bill. Among other unpopular measures, this legislation established a housing levy that will see Kenyans pay 1.5% of their gross monthly salary, with employers forced to match this amount. Critics of the measure argued that it would make citizens poorer while undermining business profits and so harming employment.
Yet despite the push back, Ruto defended the measures and ruthlessly pushed the National Assembly to pass the bill, which was signed into law on 26 June 2023. The case of the Finance Bill has raised broader questions about whether the Kenyan parliament has the capacity to stand up to the executive, with some Members of Parliament who attended the recent “Transforming A Nation” conference in Nairobi arguing that the legislature is weaker than it has been at any time since the reintroduction of multiparty elections in 2023. One reason that has been advanced for this quietude is the president’s notorious energy and attention to detail. With regular caucus meetings being held to direct Kenya Kwanza MPs on how to vote, opportunities for members of the government on the issues – or on their conscience – are few and far between.
While the frequency of the caucus meetings seems to be new, however, it is harder to work out how much the current parliament represents a break from the past. Kenyan MPs have generally failed to check presidential power since independence, despite the fact that scholars such as Joel Barkan and Ken Opalo have cited the National Assembly as one of the most influential such bodies in Africa. This raises the question of whether political accountability really has fallen, or whether in reality we are seeing more continuity than change. A re-evaluation of parliamentary functions is crucial to understand the strengths and weaknesses of the National Assembly, and when it is most (and least) likely to serve as a break on the president’s ambitions.
The evolution of the Kenyan legislature
After the initial shift from one-party to multiparty politics in Kenya, the National Assembly gained a reputation as one of the more assertive bodies on the continent, despite the infrequency with which it overruled the executive. This can be seen in reforms to strengthen its own capacity, such as the establishment of independent budget offices, and the evolution of elaborate legislative procedures for approving the budget. The 2010 constitution entrenched some of these trends by stipulating the need for parliamentary approval for a wide range of appointments. While these reforms were intended to rebalance the political system, however, it is unclear how much they have done so given the ability of the executive to manufacture a majority in order to ensure their favourite candidate makes it through.
A further challenge is that efforts to strengthen the legislative landscape have led presidents to occasionally try and circumvent parliamentary processes through the use of Executive Orders. These orders, which involve written, signed, and publicly issued directives, enable the executive branch to bypass parliament, although they are not supposed to be used to make major decisions around funding issues. The surge in Executive Orders thus both demonstrates the desire of President Uhuru Kenyatta and his successor to bypass potential legislative scrutiny, which simultaneously hints at the potential for parliamentary scrutiny and the ways that this can be circumvented.
Tellingly, an index of “legislative constraint on the executive” created by the Varieties of Democracy (VDEM) dataset indicates that the traction of the National Assembly has fluctuated, rising to a high of 0.91 (on a 0-1 scale in which 1 represents the highest possible score) in 2011, but declining to 0.85 in 2019. This decline aligns with the increased use of Executive Orders under Kenyatta’s administration.
The highly political use of Executive Orders is demonstrated by their timing. The frequency of Orders is estimated to be 55% higher in election years, and in some years the majority are issued in the month before the election. This is no surprise, as in many cases Executive Orders are used to target benefits at voters in an attempt to retain political support and ensure re-election.
Kenya’s parliament today
It is against this background that some of the recent utterances of President Ruto have proved to be so controversial. At a public rally on 7 June 2023, Ruto threatened MPs planning to vote against the proposed Finance Bill 2023. These sentiments were echoed by the Deputy President, Rigathi Gachagua, and other government leaders – including the Speaker of the National Assembly – some of whom warned that MPs trying to shoot down the legislation would be starved of development projects.
This incident stands out for three main reasons. First, the explicit threat to critical MPs suggests a degree of disdain for a critical political institution. Second, the Finance Bill is unpopular with Kenyans, which raises questions about whether it should have been adopted. A preliminary analysis of likely scenarios suggests that the proposals wil harm market competition, create disincentives to work, and drive informal businesses towards tax evasion. It is therefore unsurprising that a survey by the Centre for Fiscal Affairs (CFA) and Twaweza found that at least 75% of Kenyans strongly oppose the Bill.
Third, the Speaker is considered an ex officio Member of the August House of Representatives and is expected to maintain impartiality in all matters by law. While most speakers have adhered to this requirement, both former National Assembly Speaker, Justin Muturi and the current Speaker, Moses Wetangula have been criticised for openly showing bias against the opposition. In this particular case, Wetangula openly campaigned for the Finance Bill, leading to fears that he will be complicity in efforts to undermine the legislature’s scrutiny function.
A related concern is the lack of evidence that appears to inform the design and discussion of legislation in the Assembly, which has worsened as the volumes of legislation has increased. At present, the primary implementation agency, whether it be the National Treasury, Revenue Service or Ministry of Health is generally allowed to present its evidence and argument, with little capacity for lawmakers to collect data or build their own counter-arguments due to the limited research capacity of the legislature and the fact that few MPs have a research background.
A self-assessment by parliamentarians on their representation, financial control, oversight, and legislative functions in Kenya, Uganda and Tanzania confirms some of the limitations of the National Assembly. According to MPs themselves, no parliament in the region is performing well on its core functions. Uganda scored the highest at 42.5 (out of 60), Tanzania ranked second with 41.4 and Kenya lagged behind with the lowest score of 30.8. Among the six indicators, Kenya scored the lowest in representation function with a score of 2.3 out of a possible 10.
Although it is important to note that this may reflect that Kenyan MPs have higher expectations, given that they operate in a more democratic context, it is nonetheless clear that the National Assembly suffers from serious deficiencies. It therefore seems likely that more problematic and unpopular legislation will be passed in the years to come, despite widespread opposition outside of parliament.
Corruption and worse
The numerous recurring corruption and fraud issues highlighted annually in the Auditor General’s report is a further indicator that the National Assembly is failing to perform its oversight functions. In turn, the complicity of parliament has seen the judiciary come under greater pressure to intervene and fill the gap. This has set the stage for the politicization of the judiciary, leaving judges more vulnerable to attacks from members of the ruling party. One consequences of this has been that the judiciary has been threatened by the executive, most notably that its budget could be cut.
It is therefore imperative that Kenyans – including opposition parties, civil society leaders, journalists and academics – express their support institutions of horizontal accountability. More than that, we must demand that they perform their duties and defend them against executive attack. The National Assembly also needs to play its part by evolving to reflect its growing workload. Kenyan law making will be improved by having fewer and more effective statutes, concentrating on major legislation, and incorporating evidence into every day parliamentary decision-making. This will involve spending more on parliamentary researchers, but it will be a small price to pay in terms of better legislation.
None of this will be enough, however, if MPs on both sides of the political divide to not assert their right to examine, scrutinise and improve government proposals. Given that the constitution grants the parliament the authority to oversee the nation’s finances and how they are used, as well as to look into the conduct of the state officials while in office and start the removal process, it is time for the National Assembly and stop lamenting executive capture and act to overcome it.
Oscar Ochieng (@JOchieng85) is a communication specialist based in Nairobi and he holds a Bachelor’s Degree in Communication and Sociology from the University of Nairobi.
Darmi Jattani (@DJattani) is an economist with experience in public finance research and policy