A Tale of Two Constitutional Traditions: South Africa and Kenya

For the last two days, the Judicial Service Commission in South Africa has been interviewing the presidential Chief Justice* nominee Justice Mogoeng Mogoeng who is set to replace Justice Sandile Ngcobo at the apex court of the land, the Constitutional Court (Concourt).

I picked up on a key distinction between Kenya and South Africa vis-a-vis key appointments to government. For example, the person nominated to be CJ in Kenya can only be appointed after parliamentary approval. South Africa’s constitution gives the President the sole discretion in appointing the CJ and his nomination does not have to go through parliamentary approval. This simple fact, I believe, illustrates Kenya’s traumatising history with the powers of the Executive. Whereas South Africans have never had to deal with an Imperial President who hires and fires at will and is accountable to no-one in the manner in which he runs the country. However, I know that apartheid South Africa had to deal with an Imperial Parliament that was majorly white and enacted the most oppressive and racially motivated laws ever recorded in human history. Therefore it is clear that the stance taken by the post-apartheid constitutional drafters was to remove a lot of the powers vested in Parliament and provide for clearer limits, checks and balances among the three branches of government.

Whereas here in Kenya, every single person that has been involved in the constitutional-making process, from Pre-Bomas to our Committee of Experts, recognised the urgent need to decentralise the powers of the President and make the Executive Branch of government more accountable to Parliament and more open to judicial supervision and guidance.

But I foresee a problem.

It seems like we have now given the Legislature waay too much discretion in second-guessing and questioning the decisions and proposed actions of the Executive. This problem is prominent especially now where parliamentarians are able to hold the Executive and Judicial arms of government at ransom. MPs, as we know them are a self-serving lot that have proved time and time again that exercise of their constitutional mandate is up for sale to the highest bidder. Parliament is now able to prevent the Executive from living up to its political pledges by dragging it’s feet on enactment of enabling laws or even by blocking the appointment of suitable Presidential nominees.

If you ask me, Parliament is the biggest beneficiary under the new Constitution deliberately because of the decades of mistrust and misuse of prerogative powers by the Executive under the aptly dubbed “Imperial Presidency”. However it is important to remember that these powers have been donated to parliament by the great people of Kenya therefore it is up to us to ensure that parliament exercise their new-found powers in strict accordance with the wishes of the people.
Thus, it was probably in the CoE’s wisdom that a Right of recall provision was included in the Constitution to empower the voters to chuck out their non-performing area MPs.

As we enter the second year since the promulgation of the constitution, I would urge everyone to familiarise themselves with their social contract with the state and cascade that knowledge to others so we can foster a more informed and more participatory democratic culture.

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