Cabinet under the New Constitution

Open. Accountable. Responsible

Introduction

The Constitution of Kenya 2010 is clear on who now owns executive power in Kenya. It is the people of Kenya. This declaration alone is a source of great optimism and assurance for all Kenyans and more so for the previously marginalised classes. 

The declaration has given rise to new institutions, functions and processes that will exercise this executive power on behalf of the people. This power is to be shared between a lean Cabinet, Commissions, Independent Offices and County (devolved) Governments.

Authority

As mentioned in the above introduction, executive authority and power in Kenya belongs to the people. They expect the exercise of this authority to be predictable and coherent because it will follow only one manual - the Constitution. Excerpts from Chapter 9 - The Executive, Part 1 - Principals and Structure of the National Executive, Article 129: 

129. (1) Executive authority derives from the people of Kenya and shall be exercised in accordance with this Constitution.

The people's executive authority is nationally entrusted to the Cabinet whose head, the President, becomes the head of state and government, the security forces and the National Security Council, NSC. 

131. (1) The President— (a) is the Head of State and Government; (b) exercises the executive authority of the Republic, with the assistance of the Deputy President and Cabinet Secretaries; (c) is the Commander-in-Chief of the Kenya Defence Forces; (d) is the chairperson of the National Security Council; .......

The exercise of this authority must be open and be seen to benefit everyone; and at no time appear to favour any one person or group:

129. (2) Executive authority shall be exercised in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit.

To this end and in order to maintain neutrality and prevent conflicts of interest, the President, unlike before, is prohibited from holding any other public office. Excerpts from Article 131:

131. (3) The President shall not hold any other State or public office.

The new Constitution further prevents the President from disowning any orders issued by them especially when things haven't gone according to plan; Article 135:

135. A decision of the President in the performance of any function of the President under this Constitution shall be in writing and shall bear the seal and signature of the President.

On the 2^nd of April 2015, after a terror attack at Garissa University College in which more 147 students lost their lives, the country was placed in earnest expectation over whether the President would confirm in writing, seal, and signature, an executive order he gave to the Inspector General of Police to prepare to receive some 10,000 trainees whose recruitment by the National Police Service Commission in October 2014 had been subsequently nullified by the High Court on the 31^st October 2014.

Said the President, "I further direct the Inspector-General of Police to take urgent steps and ensure that the 10,000 recruits, whose enrolment is pending, promptly report for training at the Kenya Police College, Kiganjo."

“I take full responsibility for this directive. We have suffered unnecessarily due to shortage of security personnel. Kenya badly needs additional officers, and I will not keep the nation waiting.”

Although he did not provide the requisite written and signed order from the President to that effect, nonetheless, the Inspector General of Police immediately went ahead to ask the recruits to report on the 12^th April for training. Meanwhile, the Commission issued its own invitation for a fresh recruitment exercise to be conducted on the 20^th of April countrywide. Thus the President's order that was in contravention of a judicial ruling had no outcome.

Similarly, a decision made by the Cabinet as a singular body, must be in writing. Chapter 9 - The Executive, Part 3 - The Cabinet:.

153. (1) A decision by the Cabinet shall be in writing.

The top leadership is thus expected to take responsibility for its own errors, mistakes and/or mischief, including those committed by junior officers. Previously, the junior officer would be made the scapegoat and transferred, or removed and the whole matter swept under the carpet.

In the principal of checks and balances, executive authority vested on the members of the cabinet remains subject to the oversight role of Parliament. Chapter 8 - The Legislature, Part 5 - Parliament's General Procedures and Rules:

125. (1) Either House of Parliament, and any of its committees, has power to summon any person to appear before it for the purpose of giving evidence or providing information.