Article 152 of the Constitution of Kenya introduced parliamentary confirmation process for certain categories of presidential appointees including Cabinet Secretaries as a check and balance on exercise of presidential powers. The framers of our Constitution intended our parliament to be the peoples’ shield against incompetent, unfit, corrupt or inept appointees. The concept was largely borrowed from United States of America where the Constitution has conferred such powers to the Senate as a critical aspect in checking abuse of power by a sitting president. Used well it can nurture good balance of power between the executive and legislature and enhance transparency and accountability. Abused, it can make a mockery of the whole process especially where parliament converts itself into a rubberstamp of the executive.
Confirmation hearings in American are never a walk in the park. Out of the 118 nominees by the various Presidents to the Supreme Court 37 have been unsuccessful. Infact there are instances where public pressure has forced either the President to withdraw the nominees’ names or nominees themselves to withdraw from the process. For example, Douglas Ginsburg nominated by President Ronald Reagan in 1987 withdrew from the process after controversial allegations arose about his personal drug use of marijuana. On the other hand, unblemished nominees attract bipartisan support. This was the case in the Californian federal judge Antony Kennedy whose judicial philosophy and demeanor were viewed as balanced and reasonable. This led to him receiving both Republican and Democratic support with an overwhelming vote of 97 to none opposing.
In Kenya political dynamics and power play have influenced the process in parliament with most nominees enjoying state backing easily sailing through. The last vetting process was viewed (and I say this with tremendous respect) as a debacle and theatre of the absurd with some Cabinet Secretaries of questionable integrity, uninspiring performance during questioning ,questionable academic credentials and scandals sailing through. Ethical concerns and public interest was never a factor. Literally, in the exercise National Assembly was merely ticking the boxes and biding for the Executive. The clamor by Generation Z (hereinafter Genz) to have parliament dissolved is in part a response to dismissal performance of both houses of parliament in this area among other concerns and the terrible loss of expectation the public has had to endure on the performance of the house as a credible check and balance on the excesses of the Executive. The forthcoming vetting process is thus a golden opportunity for parliament to redeem itself and restore public confidence of its image as an institution and exorcise if at all the demons of 25th June 2024 invansion of parliament. The President’s action of returning the Finance Bill is a testament that when the public mood is not in support of certain actions then he will bow to that pressure without caring about the “voting machine for the executive, namely parliament”. The Parliament of Kenya needs to wake up and smell the strong aroma of the coffee aka public mood – it in escapable.
Vetting through parliamentary process should never be mechanical and cosmetic but a deep introspection on the character and competence of a candidate including whether the views a candidate holds or has held before are compatible and consistent with the office a candidate intends to hold and our national values as encapsulated in Article 10 of our constitution. In America President Reagan picked Robert Bork as his nominee for the position of judge of Supreme Court. Though by and large a man of integrity and with a distinguished career including being a scholar who had thought and produced brilliant legal minds the likes of Bill and Hillary Clinton he faced stiff opposition in the senate on account of an article he had written in 1963 in opposition of passage of 1964 civil Rights Act criticizing its enactment.
During the hearings, he renounced his work, but this played into his portrayal as an opponent of equal rights for African Americans. When asked by a sympathetic senator why he wanted to be on the Supreme Court, he answered it would be “an intellectual feast,” which further fortified the perception that he cared less about the fundamental freedoms of the American people. Bork lost the battle of public opinion, and he lost his confirmation quest in the Senate. .
On the other hand, Harriet Miers, a nominee of President George Bush in 2005 to the supreme court who had very little judicial experience and who astonishly had not even renewed her law license for some time and who was widely perceived as unqualified for the position faced significant opposition prompting President Bush to bow to the pressure of the peoples’ representatives, eat humble pie and withdraw her nomination albeit the dismissal performance during confirmation hearings. The Senate was simply asserting it had teeth and could bite. This is what the Kenyan Members of Parliament need to do. The voters gave them teeth to bite not just the food but also bite out the bad processes that lead to rot in the entire system.
Therefore, the National Assembly should know that the phenomenon of merely rubberstamping presidential nominees for various Cabinet and other positions where parliamentary vetting is obligatory as has been the norm undermines the constitutional aspirations of good governance and integrity in public service.
Vetting should never be about a member of parliament’s unyielding appetite to demonstrate loyalty and showcase his or her affiliation to a political party. Rather it should be an affirmation of the imperatives of Chapter six of the Constitution on picking leaders on the basis of integrity, competence and a nod of dispatch for them to offer dedicated selfless service to the Nation Kenya. What befell Debo P. Adegbile picked by President Obama to lead the Justice Department’s Civil Rights Division can offer useful yardstick on bipartisan approach on vetting.The joining of forces by Republicans and Democrats presented an embarrassing rebuke to the President on his choice. It was the votes of seven Democratic senators from the President’s own party that doomed the nomination despite what White House officials described as a vigorous sustained closed-door effort by Mr. Obama and his top aides to save his nominee. In Italy, Romano Prodi lost his second term in 2008 after his government lost a Senate confidence vote, a form of check and balance in a parliamentary system, obliging him to end his Twenty-Month-Old Government. So parliamentary oversight as a tool of checks and balances has worked ,does work and can work
In Kenya, the authority assigned to a State officer is premised on public trust to serve the people and not to obnoxiously enrich one-self. One should never ascend to State Office, by whatever means but through a demonstration of unwavering commitment to good governance, transparency and accountability. In every association, that commitment has to, at all times, be consistent with the purposes and objects of the Constitution, to wit demonstrate honour for the people of Kenya, bring honour to the nation and dignity to the office as well as promote public confidence in the integrity of the office. Chapter Six codifies the guardrails against autocratic exercise of power by the leaders. Can parliament be its guardian? Next Week Shall Be The Time to Tell
By Okong’o Omogeni- Senior Counsel, Senator for Nyamira County and former Law Society of Kenya Chairman.
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