By SEKOU OWINO
Posted Friday, April 1 2011 at 22:00
Posted Friday, April 1 2011 at 22:00
In Summary
- New Constitution has a mechanism to counter-check President’s previous unrivalled powers to choose candidates for plum civil service positions
One of the reasons the new Constitution is lauded is that it introduced a mechanism for counter-checking appointments to public office by the President.
The old constitution was often criticised as it was seen as making the presidency an overbearing institution in several aspects, not least the fact that the office holder had unrivalled powers to appoint almost the whole Public Service.
The new document is a marked improvement in that, bar the vice-presidency, almost every other important constitutional office to which the President makes an appointment must be subject to approval by the National Assembly.
It is, therefore, the need to institutionalise parliamentary approval of appointments to public offices that a private member’s Bill, the Public Appointments (Parliamentary Approval) Bill, 2011, was published a fortnight ago.
The Bill seeks to “provide procedures for parliamentary approval of constitutional and statutory appointments and for connected purposes”.
Although it can be argued that there is no need for a specific law to govern how Parliament handles the issue of approval of candidates for public office, the law is a necessity in view of Kenya’s history of public office appointments.
In other jurisdictions that require parliamentary approval of appointments by the president, the mode of approval by the legislature developed from the practice and Standing Orders of the legislative assembly rather than through a law.
In our context, the need for a clearer process makes a law of this kind imperative because of our history and politics in the way the Executive has made appointments, coupled with the disputes Parliament and the Executive have had over appointments.
The Bill requires that when an appointment is to be made and such office requires approval by Parliament, the appointing authority will have to state in an advertisement that candidates will appear before a Committee of Parliament before the appointment takes effect.
In other words, a person appointed to an office required by law to be subject to parliamentary approval will not begin work until he or she has appeared before a Committee of Parliament and the candidacy approved.
The appointing or nominating authority shall be required to forward details of candidates to the Clerk of Parliament. The clerk will then invite the concerned committee to convene a hearing to consider whether the candidate should be approved.
The clerk is required to inform the candidate of the date of the hearing while the committee informs the public of the date and time. This is meant to invite public participation in appointments and is in tune with the requirements of the Constitution for public involvement in all governance affairs.
This is bolstered by section 6(5) of the Bill, which states that the hearings ought to be transparent and open.
However, there seems to be a troubling qualification to the principle of public participation in the confirmatory hearings in Section 6(6), which purports to empower the committee concerned to decide to conduct some or all of the hearings in public either by itself or upon the request of a candidate.
This could be problematic and I would contend that the attempt at empowering a committee to hold any or part of the hearings in camera is susceptible to challenge as being unconstitutional.
It does not appear that a committee of Parliament has this kind of power in light of Article 124(4) (c) which says: “When a House of Parliament considers any appointment for which its approval is required under this Constitution or an Act of Parliament, the proceedings of the committee and the House shall be in public.”
This is drafted in mandatory terms and does contemplate any circumstances under which either the Senate, National Assembly or any part of it or any of its committees may hold the hearings for confirmation of candidates to public offices in camera.
If the Bill is passed by Parliament and enacted in this form, Section 6(6) shall be legally void and will pose unnecessary risk to the rest of the law. If challenged in court, it would be declared unconstitutional.
I suggest that Parliament consider deleting this sub-section. Indeed, I would suggest that the private member, who sponsored the Bill, should consider widening participation by inserting a clause that provides for the public to submit written memoranda on their views as to the suitability or otherwise of candidates. This is common in most countries and will earn public confidence for persons appointed through this device.
Section 6(7) states the scope of what the committees would be looking for and narrows these down to academic credentials, professional training and experience, personal integrity and background.
This, in my view, is too thin a basis for vetting for public office. The spirit of the Constitution is that it is meant to be a wholesome consideration of the candidate’s professional, functional, temperamental and ethical fitness for the job. Restricting it to professional aspects would short-change Constitutional requirements.
For instance, in the case of a candidate for chief justice, the committee would fail in its responsibility if it merely sought to check whether the candidate meets the formal qualifications.
There is need to test his/her functional fitness in the sense of demonstrating a streak of independence and intellectual gravitas, capacity of industry and diligence in addition to temperament among others, since these are special requirements for the office of a Judge and of a chief justice in particular.
The requirements for an attorney-general, director of public prosecution and ambassadors will also involve more than mere qualifications.
This is why there is need to examine a candidate beyond paper qualifications.
The National Assembly should therefore consider widening the specified criteria for vetting by amending the sub-clauses to state that the committees may consider other relevant factors it may deem necessary for the office to which the candidate has been nominated.
The Act contains a schedule of the questions that a candidate will have to answer. This too would appear to be limited to the academic and professional qualifications matrices.
The introductory words to the schedule should also carry a qualification to the effect that the questions are standard but that each office will require additional questions as determined by the committee. This is because there are different categories of offices that require this kind of approval and the expectations for them are not similar.
For instance, questions to be directed at the aspiring chief justice and attorney-general shall of necessity be different. The CJ will be working in the Judiciary and the AG in the Executive and therefore, the examination must vary. By the same token, the inquiries to be made of a candidate for ambassador must be different from those made from a candidate for Cabinet secretary. In short, there needs to be more specific questionnaires for almost every category of office.
However, a look at the schedule reveals another potential constitutional minefield.
Question 5 requires a candidate to state his/her marital status. This could be problematic and unconstitutional.
This could be attacked as being irrelevant to the performance of duties in a State office and has no link to ability. More ominously, it could be deemed unconstitutional in two ways. First, Article 27 of the Constitution prohibits discrimination on the ground of marital status, among others.
A candidate may well challenge this requirement to state his marital status on the basis that it is geared at discriminating against persons of a particular marital status, say the unmarried or divorced.
Second, and more seriously, Article 31(c) of the Constitution is clear that one of the categories of the right to privacy is that a person shall not be required to unnecessarily disclose information relating to his or her family or private affairs.
This compulsion could itself be afoul of the Constitution and would be declared null and void. Parliament should consider deleting this question altogether.
Despite the few constitutional wrinkles which could be ironed out before the Bill is passed, this Bill is a good plank on which the implementation of the Constitution with regard to the parliamentary control of the Executive in appointments will be anchored.
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