10th Parliament (National Assembly)
Self-Serving. Compromised. Unreliable
|The 10th Parliament is credited with taking advantage of the provisions in the Old Constitution that gave it the express authority and space to legislate, to the extent that it was at times accused of being rogue. Although the Constitution of Kenya 2010 further expanded this authority, it did so within clear and specific framework under the separation of powers while making it clear that the people of Kenya remain the supreme authority.
|Roles and Functions
|The roles and functions of the 10th Parliament expanded during the transitioning into the New Constitution enabling the Assembly to actively play its part in making law, regulating public resources, and exercising oversight on the National Executive, State Organs, and to assist the country in the early stages of the transition.
|The 10th Parliament consisted of 210 directly elected Members for Constituencies, 12 Nominated Members to represent special interest groups for a total of 222 Members, and an ex-officio Speaker of the Assembly.
The President of Kenya (and not the National Assembly) was the real and final authority in the country under the Old Constitution. It was the President who hired (and fired) at will, holders of top positions in State Offices and Organs without consulting any other authority least of all the National Assembly. Chapter 2 - The Executive, Part 3 - Executive Powers:
23. (1) The executive authority of the Government of Kenya shall vest in the President and, subject to this Constitution, may be exercised by him either directly or through officers subordinate to him.
24. Subject to this Constitution and any other law, the powers of constituting and abolishing offices for the Republic of Kenya, of making appointments to any such office and terminating any such appointment, shall vest in the President.
25. (1) Save in so far as may be otherwise provided by this Constitution or by any other law, every person who holds office in the service of the Republic of Kenya shall hold that office during the pleasure of the President:.......
The fact that a sizable number of Members of Parliament (MPs) also doubled up as Cabinet Ministers and Assistant Ministers, further complicated the separation of powers. The President could use State appointments to secure loyalty. This robbed Parliament off some of its independence. In fact, Parliament was by definition made up of 2 - a powerful President and the Assembly of MPs:
30. The legislative power of the Republic shall vest in the Parliament of Kenya, which shall consist of the President and the National Assembly.
However, the Constitution of Kenya 2010 (the New Constitution), has sought to rearrange the hierarchy of authority by placing the people of Kenya at the very apex of that power by affirming that they are the owners of that power, stating in Articles 94, 129, and 159 of the New Constitution:
94. (1) The legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament.
129. (1) Executive authority derives from the people of Kenya and shall be exercised in accordance with this Constitution.
159. (1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.
These three Articles from the New Constitution, essentially separate the powers of the three arms of government; by first stating that the supreme authority in the Republic of Kenya is the people and secondly, placing State organs under the subordinate will of the people to exercise delegated power for the good of the people. As part of the dictates of devolution as contained in the New Constitution, the National Assembly forms just one half of the Parliament of Kenya. The other half is the Senate of the Republic of Kenya signifying the people's desire for a two-tier legislative structure. However, the Senate comes into existence only after the first elections under the New Constitution in March 2013. Until then, the functions of the Senate will be exercised by the current Tenth Parliament. Excerpts from the Sixth Schedule - Transitional and Consequential Provisions of the New Constitution:
11. (1) Until the first Senate has been elected under this Constitution— (a) the functions of the Senate shall be exercised by the National Assembly; and (b) any function or power that is required to be performed or exercised by both Houses, acting jointly or one after the other, shall be performed or exercised by the National Assembly.
(2) Any function or power of the Senate shall, if performed or exercised by the National Assembly before the date contemplated in subsection (1), be deemed to have been duly performed or exercised by the Senate.
Therefore the 10th Parliament has found itself in the unique situation of serving its term under two (and vastly different), constitutional dispensations. This has necessitated a complete evolution on its part in order to provide for a smooth transition from the old to the new era. Indeed, this Parliament enacted numerous legislation to amend the old constitution, to facilitate the adoption of the New Constitution and to function effectively for the remainder of its unexpired term that ends at the General Elections of 2013:
10. The National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of this Constitution for its unexpired term.