Public Participation and Parliamentary Oversight - Africa Centre for ...

Public Participation andParliamentary OversightLegal Reforms and Policy Optionsa

ContentsIntroduction 1The policy question 1Part 1: Context and diagnosis 2Part 2: Parliamentary committees and public participation 3Part 3: Factors that affect the capacities of committees to meaningfully engage the public 5Part 4: Policy and legal reforms to promote public participation in oversight committees 8Africa Centre for Open GovernanceP.O. Box 18157-00100, Nairobi,Kenya.Telephone: +254 20-4443707/0737463166Email: admin@africog.orgWebsitr: www.africog.org

IntroductionThe policy questionOne of the most important changes introduced by the2010 Constitution is the enhanced role of the public ingovernance generally and in parliamentary processesin particular. There are specific provisions mandatingopenness and public inclusion in the preamble tothe constitution, 1 explicit affirmation of the constituentpower of the public in the sovereignty clause 2 andrequirements for involvement and consultations foregroundmost of the chapters. How will this opennessand participation be given effect, in general? Morespecifically, how will parliamentary committees fulfilthe transparency guarantees and public participationrequirements of the constitution?This policy brief analyses the key questions and issuesthat need to be addressed. Globally, there is growingrecognition that public participation improves policyoutcomes. 71 of 88 parliaments reviewed in a WorldBank study arranged public hearings. But these are ofvariable depth, scope and quality. Some parliamentsroutinely conduct hearings with those affected andwith experts; other parliaments arrange hearings withgovernment officials and yet another group typicallyinvites the public to hearings. Sometimes even thoughhearings are required they are not held. In some parliaments,there is a presumption of the right to be heardand in others the matter is at the discretion of the NationalAssembly. But hearings are not the only meansof public participation in parliamentary matters. Otherforms of public involvement include:● transmission and (re)broadcasts of parliamentaryproceedings;● observation of hearings;● written submissions;● public petitions and open proceedings.In Kenya, the new constitution mandates openness,transparency and public involvement. But the achievementof this depends on effective implementing legislation;proper administrative structures; nature, number,powers and capacities of committees, and leadershipand technical capabilities of parliamentary committees.This brief is in fours parts: the first part provides the legaland political context of this question; the secondpart looks at the constitutional foundation and natureof the committee system; part 3 at the factors that affectpublic participation and part 4 at the legal andpolicy reforms needed to improve public participation.1 Lines 7 and 8 of the Preamble.2 Article 10.1

Part 1: Context and diagnosisThe Context: The post-election crisis in 2008 drove homethe point that Kenya’s political problems were structurallyembedded in the constitution as it had been implementedand denatured through various amendmentsfrom independence. These problems were identified asthe country’s winner-take-all electoral system; frail institutionsunable to mediate intense political competitionand unaccountable security sector institutions. Theseproblems pointed to the need for urgent review of thecountry’s constitution. Under a process embedded inthe old constitution, a new constitution was draftedand ratified in a referendum on August 4, 2010. With aturnout of 72.1%, the referendum recorded the highestturnout of any election in the history of Kenya.The new constitution provides a framework for undoingKenya’s 40 year authoritarian legacy: powers aresplit and balanced under a fully presidential system andbetween a national and local government structurebased on counties; the bill of rights has been strengthenedto expand on the previous bill of rights and civiland political rights have been introduced; the electoralsystem remains constituency-based but there is greaterinclusion of women, marginalised groups and theyouth; the security machinery have been placed undergreater constitutional and popular scrutiny throughthe elected branches of government; oversight institutionssuch as Auditor General, Controller of Budget,Ethics and Integrity Commission and the Human RightsCommission have not only been recognised but havealso been given wider powers; revenues are given asounder footing through the constitutional recognitionof the Revenue Allocation Commission; amendmentsto the constitution require much higher threshold andsome must be approved by referendum. These sweepingchanges are buttressed by broad principles thatguarantee openness and scrutiny and public access togovernance institutions. Going forward, two key challengesneed to be addressed:● the first is the recognition that there is a big differencebetween the authority that the constitution asserts-as a matter of drafting- and that which it willeventually exert- as a matter of implementation;● the second is that many of the changes proposed bythe constitution are not self-executing, they dependon the enactment of enabling legislation.Diagnosis: The 2010 Constitution radically altered theKenyan constitutional system from a dysfunctional hybridof the British parliamentary and the American presidentialsystems to an explicitly presidential system. Thenew system is a radical break from what we have had:a president with an electoral mandate independent ofthe electoral mandate of parliament; a bicameral parliamentwith a National Assembly with representativeschosen from single member constituencies supplementedby special seats for discrete and insular groupsthat are traditionally under-represented and a Senatethat represents counties. These changes mean that theuse of the tools and mechanisms that Parliament usesto hold government to account must also change. Thetools for parliamentary scrutiny of the executive underthe new constitution are a combination of some oldand new tools. They include:● the parliamentary inquiry;● ad hoc investigations by specially constituted committees;● regular scrutiny by standing committees;● the parliamentary motions of censure;● the parliamentary debate;● the power to approve or reject appointments;● the power to impeach the President andVice-President; and● the power to amend the budget.Under the presidential structure in the new constitution,members of the cabinet will not sit in the NationalAssembly, hence the primary site for scrutiny of theexecutive will be the parliamentary committee, not, asbefore, the parliamentary questions asked in plenarysessions.Foundations of the Committee System: The link betweenthe committees of Parliament and the public participationis Article 94 of the constitution which explicitly says2

that the “legislative authority of the Republic is derivedfrom the people.” The legislative authority is shared betweenthe Senate and the National Assembly whichhave discrete and conjoint powers to appoint committeesto discharge Parliament’s mandate. These committeesare established under and regulated by StandingOrders which govern both the orderly conduct of businessin the two Chambers and also the proceedings ofcommittees.Part 2: Parliamentary committeesand public participation(a) Types of Committees at the National Level:The constitution envisions that to the extent possible,members of the public should be involved as much aspossible in the work of all committees of Parliament.However, it is also clear that the public interest in committeework will depend, in a significant way, on the natureand work of the particular committee. Parliamentarycommittees under the constitution will fall into sixbroad categories:1. Standing Legislative Committees: These are permanentcommittees with departmentally relevantmandates for scrutinizing government policies. Veryoften, these committees mirror government ministriesand departments, hence their usual descriptionas departmental committees. All bills affecting suchministries, policy issues related to the ministries aswell as budgets and estimates of the departmentsare, in the first place, considered in these committees.These committees are the tools for on-goingscrutiny of government. Some permanent legislativecommittees may also be established or be requiredby statute. Public participation and involvementin the work of such committees is imperative.2. Standing Non-Legislative Committees: These arealso permanent committees but they do not havepolicy relevant departmental responsibilities. Mostof these are committees related to internal affairs ofthe Parliament. These committees often deal withhouse-keeping issues or with the internal managementof the house. They include, for instance, theLibrary Committee; the House Business Committee;Parliamentary Pensions Committee; the Cateringand Health Club Committee; Procedure and HouseRules Committee; the House Broadcasting Committeeand the Speaker’s Committee.3. Ad Hoc Committees of Inquiry: These are needbasedcommittees established by resolution of eitherhouse (or both) to address a specific issue underTerms of Reference (ToRs) set out by the house.Though the house does not currently have a committeeof inquiry, it is inevitable that at some pointcommittees of inquiry will be established. Sincesuch committees are usually created to deal withpressing public issues the imperative for participationis very high.4. Special Purpose Committees: The clearest exampleof such a committee is the optional committee onimpeachment. The constitution gives the Senate theoption to create a special committee on impeachment.This committee may fall in the generic categoryof ad hoc committee of inquiry, but given theextra-ordinary nature of the impeachment power aswell as the procedural fact that it is, in effect, a trialrather than a parliamentary proceeding, this committeeshould be treated as an ad hoc committee ofinquiry sui generis.5. Joint Committees: The constitution also gives theNational Assembly and the Senate the discretionarypower to create joint committees. The mandates ofsuch committees will be in the instrument that cre-3 Article 112.3

ates them. But examples of joint committees wouldinclude mediation committees 3 which are created toresolve issues on which the houses are deadlocked.6. Sub-committees of Parliamentary Committees:Under the Standing Orders committees may appointsub-committees to assist in the discharge oftheir functions. To pass constitutional muster, suchsub-committees should be subject to the sametransparency and participation requirements as themain committees.(b) Public Participation and the Committee System:Under the centralised, prefectural administration establishedby the post-independence constitution, publicparticipation and inclusion were virtually non-existent.The public participation and inclusion requirements ofthe new constitution are designed to remedy this defect.So central is this public involvement theme to thenew dispensation that the constitution makes it clearthat public participation is a requirement not merely ofthe electoral process but an ethos of the entire governmentsystem established by law. There are four specificareas in which it is mandated and one omnibus transparencyrequirement:1. There is a general constitutional duty on Parliamentand County Assemblies to involve the public: Theconstitution – under Article 118 and 196- imposeson Parliament and County Assemblies respectivelyboth a positive and a negative duty: the positiveduty requires the involvement of the public and thenegative duty bars the exclusion of the public fromproceedings of Parliament and County Assembliesor the proceedings of their committees. 42. In matters of public finance: The provisions on publicfinance articulate principles of “openness andaccountability.” Under this, the constitution has imposeda requirement of “public participation in financialmanagement.” 53. In the delivery of service by the public service: Underthe values and principles for the managementof the public service, the constitution requires “involvementof the people in the process of decisionmaking”and also “transparency and provision to thepublic of timely, accurate information”. 64. In environmental husbandry: Provisions on themanagement of natural resources, contained in thechapter on the management of public land, requirethe State to “encourage public participation in themanagement, protection, and conservation of theenvironment.” 75. General transparency guarantees: The purpose oftransparency guarantees is to protect the opennessof public decision-making processes. Key to theseguarantees is access to information in a relevant andusable form. Access to information is a fundamentalhuman right in Article 35 which provides that everycitizen has a right to access information held by theState, and to access information held by anotherperson and required for the exercise or protectionof any right or fundamental freedom. The provisionalso obliges the State to “publish and publicize anyimportant information affecting the nation.” Transparencyguarantees are embedded in many othersubstantive provisions of the constitution: the provisionson the management of public land include4 Article 118 specifically provides under sub-section (1) that “Parliament shall conduct its business in an open manner, and its sittings and those of its committees shall be opento the public; and facilitate public participation and involvement in the legislative and other business of Parliament and its committees. Under sub-section (2) the constitutionprovides that “Parliament may not exclude the public, or any media, from any sitting unless in exceptional circumstances the relevant Speaker has determined that there arejustifiable reasons for the exclusion.” Article 196 (1) and 2 re-iterate the same strictures with reference to County Assemblies.5 Article 201 (c).6 Article 232 (1).7 Article 69 (1) (d).4

principles of “transparency and accountability andcost effective administration;” 8 those on representationof the people require elections to be “transparent;”9 procurement is required to be “transparent,” 10and there is a general duty on Parliament to enactlaws that ensure “both expenditure control andtransparency” in all governments. 116. In addition, devolution is a means of enabling participation:In terms of institutional design, the constitutionmandates decentralisation and explicitlystates the objectives of devolution to include “thedemocratic and accountable exercise of power” andthe desire “to give powers of self governance to thepeople and enhance the participation of the peoplein the exercise of power of the State and in makingdecisions affecting them.” 12 A related objective isto “recognize the right of communities to managetheir own affairs” 13 and “to protect and promote theinterests and rights of minorities.” 14Part 3: Factors that affect thecapacities of committees tomeaningfully engage the public(a) Internal capacities of committees: Parliamentarycommittees suffer from inadequate staffing levels.Though the Parliamentary Service Commissionhas been implementing reforms to strengthen theresearch and analysis capabilities of parliamentarycommittees, staffing levels remain low. Withoutadequate staff – in numbers and skills- committeework tends to be slow, which undermines overalleffectiveness and erodes the meaningfulness ofpublic participation, since public input cannot beprocessed sufficiently or effectively. Improved staffingneeds to be rigorously linked to size, typologies,membership, composition, mandate and investigatoryrequirements of specific committees. In addition,changes in the reporting mechanisms, thedrafting of quality reports and implementation ofparliamentary resolutions are also necessary.(b) Infrastructure of committees: The physical infrastructureavailable to committees has had a constrainingeffect on public participation. Only thePublic Accounts Committee and Public InvestmentsCommittee have designated meeting rooms, theother committees have to share the few committeerooms available. The expanded nature of the legislaturewill put more strain on the physical infrastructure,although expansion to meet the needs of thenew constitution will also provide opportunities foraddressing the infrastructure needs of the legislature.(c) Number of committees: Kenya’s legislature has morethan 30 committees, some of which were createdout of previously larger committees. For example,1983 amendments to the Standing Orders split thePublic Accounts Committee into two: a leaner, 10member Public Accounts Committee and a newPublic Investments Committee. However, in light ofthe new constitution, new standing orders are beingprepared and the committee system needs to be rationalisedto reflect the wider powers of Parliamentas well as the new functions and roles. Comparativeinformation from other jurisdictions can informdecision-making in Kenya: the House of Commonshas 34 Select Committees and between them, the8 Article 60 (1) (d).9 Article 81.10 Article 227 (1).11 Article 225 (2).12 Article 174 (c).13 Article 174 (d).14 Article 174 (e).5

two houses of the United Kingdom’s Parliamenthave 100 committees of which fourteen are JointCommittees. The US House of Representatives has25 committees while the Uganda Parliament has 25.The South Africa National Assembly has a total of 34committees whilst the National Council of Provinceshas 13, for a total of 47 committees. Thus, numbersvary widely across legislatures and it would seemthat the key issue is to make sure that all aspectsof parliamentary work are covered. However, it isclear that more committees will definitely be necessaryand, as important, under the new dispensationmore committees will create more opportunities forpublic participation.(d) Support and cooperation of government agencies:One factor that has sapped the performance of parliamentarycommittees has been lack of supportfrom the government. However, the new constitutionhas transformed the role of Parliament andgiven it more powers than before especially in theareas of oversight and budget. Now, more than before,Parliament will rely heavily on the co-operationof government agencies if it is to play its rightful rolein relation to, especially, the budget process. Changesto existing laws, especially the Official Secrets Actand the National Assembly (Privileges and Immunities)Act are necessary. Both laws bar public officialsfrom disclosing information to Parliament. However,it is clear that the omnibus and vague provisions ofthe Official Secrets Act do not square with the transparencyguarantees of the new constitution and,whilst there may be a legitimate national securityinterest in certain non-disclosure, it is evident thatthe Official Secrets Act goes too far.(e) Integrity issues: An effective committee systemdepends on effective leadership and strong ethicalgrounding. The current committee system ofthe National Assembly of Kenya and the Assemblyitself have been described as “prone to kickbacks” 15 ,and the process of the writing and adopting of keycommittee reports, “the most lucrative” 16 part of thiskick-back system. A recent report of a study by theKenya chapter of Transparency International singlesout ‘abuse of committee trips’ 17 citing the large sizesof delegations, poor management of the trips, illogicaland expensive routing and the sheer embarrassmentthese trips have occasioned to the Assemblyand the country. 18 The report also cites an existing‘reward system’ in the composition of committeesand abuse of office by members of investigatorycommittees through harassing public officials andsoliciting favours. There have been allegations of toomuch flirtation between some chairs of committeesand representatives of special interests and officialsof transnational corporations when legislative measuresaffecting the interests of the latter are beforeParliament. 19 There are also allegations of rampanthorse-trading in these committees where MPs agreeto do one thing or another to further their personal,business or other vested interests. Complaints andallegations of impropriety within committees andthreats on lives of members are arising more fromlegislators than from the public. Members are publiclyalleging that colleagues are openly engaging inbribe-taking and illicit relations with individuals beingprobed by committees of the House. This seemsto lend credence to the adverse media reports andmay have a negative impact on the integrity of thecommittees and Parliament as a whole.15 Transparency International (Kenya), “A Report on Integrity: A Study of the Kenyan Parliament” March 2010, p. 6.16 “Bribery in Kenya’s Parliament,” The Daily Nation, 19 May 2009.17 Transparency International (Kenya), A Report on Integrity, Op. cit. p. 35.18 Ibid.19 Migai Akech, ‘Abuse of Power and Corruption in Kenya: Will the New Constitution Enhance Government Accountability?’, Indian Journal of Global Legal Studies (Vol. 18 # 1), p. 2.6

(f ) Time available for consideration of matters underminesquality: The number of legislative and policymeasures that committees have to address is immense,reducing the amount of time available fordoing so effectively. There is, therefore, inadequatescrutiny of bills and policy proposals going beforecommittees. Consequently, their quality cannot alwaysbe assured. Shortage of time impairs the abilityof committees to effectively engage the public.Though many of the challenges related to time area result of growing workload, some are a result ofa poorly structured committee system in terms ofhow the work and hearings are organised. Manycommittee hearings are too focused on scoringpolitical points. Allegations of corruption againsta government agency in the media are often theoccasion for the immediate launch of committeeinvestigations. Given that allowances are paid forthese sittings, the incentive structure clearly encouragesmore rather than less of these “fishing investigations.”A more effective approach would entail anexpert investigation- say undertaken by the AuditorGeneral- followed by a committee hearing withpublic participation on the findings of such an expertinvestigation.(g) Gaps in the infrastructure of participation: Thecase of delegated legislation: Delegated legislationsaves on parliamentary time by vesting executiveagencies with rule-making powers. Delegatingrule-making powers to such agencies allows themto address technical or detailed issues not appropriatefor primary legislation; it provides flexibility foramendment especially if the measures proposed areof a short-term nature and promotes experimentation,since the rules can be easily amended if dysfunctional.However, there is a major democraticdeficit in the process of delegated legislation: firstly,there is less parliamentary scrutiny of delegated legislation;secondly, delegated legislation, in effect,transfers legislative authority to the executive, potentiallyeroding separation of powers and finally, itprovides opportunities to circumvent the will of thelegislature.Under the old constitution, no specific provision forparliamentary scrutiny of delegated legislation existed.Article 94 (6) of the new constitution cures thisdefect. It provides for the control of delegated legislationby requiring any “Act of Parliament or countylegislation delegating the power to make bindinglegislation” to “expressly specify the purpose and objectivesfor which that authority is conferred, the limitsof the authority, the nature and scope of the lawthat may be made, and the principles and standardsapplicable to the law made under the authority.” Thisprovision meets the criticism around the democraticdeficit inherent in delegated legislation. Unlike theSouth African constitution which specifically requiresthat delegated legislation be accessible andthat it be tabled in Parliament, the Kenyan constitutiondoes not specifically require accessibility ofsubsidiary legislation, but this requirement is neverthelessimplicit in the requirements for transparencyand public participation.There are three key issues involving delegated legislation:1. There is no systematic mechanism for review of subsidiarylegislation to ensure that it complies with theprimary legislation. The implication is that the constitutionalityof delegated legislative powers cannotbe assured.2. There is no constitutional provision on the scrutinyof subsidiary legislation. An inherent review power isthe requirement that all subsidiary legislation mustcomport with the primary legislation. The Interpretationand General Provisions Act, however, providesthat if a resolution is passed by the Assembly, withintwenty days on which it next sits after the rule orregulation is laid before it, that the rule or regulationbe annulled, it shall thenceforth be void. However,this will not affect anything already done under therule or the power to make fresh rules.3. There is no statutory definition of delegated legislation.In South Africa, for instance, the constitutionrequires the scrutiny of proclamations, regulations,and rules. Questions have arisen whether proclamationsform part of delegated legislation. This is im-7

portant because ministers have been appointingpersons to public office through proclamations inthe Kenya Gazette. If the proclamations form part ofsubsidiary legislation, it follows that they can be reviewedby the legislature. If not, there is no obviousmechanism for their review.Part 4: Policy and legal reformsto promote public participationin oversight committeesParts 1 to 3 have identified the issues that impact onpublic participation in the work of committees of Parlia-ment. This part looks at the different forms that participationtakes and the reforms needed to improve thatparticipation.What the appropriate type of participation is, dependson the nature and purpose of the committee. Committeeswith a general legislative and policy mandate,such as departmental committees, will be differentfrom special purposes committees such as a senatorialcommittee on impeachment, which is in effect a trial.Participation may entail submissions, evidence givingand observation in the former, but perhaps only observationin the latter. The table below outlines the variousforms that participation takes in different types of committees.(a) Approaches to participation in Oversight CommitteesType of committee Nature of mandate Scope of public involvement Tools for public participationStanding LegislativeScrutiny of departmental Open hearingsWritten submissionsCommitteespolicies, budgets and billsStanding Non-LegislativeCommitteesAd Hoc Committees ofInquirySpecial Purpose CommitteesJoint CommitteesSub-Committees ofParliamentary CommitteesInternal parliamentary businessDetermined by resolution of thehouseDetailed in law e.g.Constitutional ImplementationOversight CommitteeOptional Committee onImpeachment;Determined by joint resolutionestablishing the committeeDetermined by decision ofparent committeeRight to observe, give evidenceand offer viewsOpen hearings; right to observeand offer viewsOpen hearings; limited closedhearingsOpen hearings; right to observeand offer viewsOpen hearings; right to observelimited closed hearingsOpen hearings; right to observeand offer viewsPresumption that same rulesof participation as parentcommittee applyOral presentations; expertopinions; public petitions;Public broadcasts.Written submissions; oralpresentationsPublic broadcastsWritten submissions; expertopinion; public petitions; publicbroadcasts (or rebroadcasts withredactions in case of closedhearings)Written submissions; expertopinion; public broadcasting;public petitionsPublic broadcastingRebroadcast with redactions inthe case of closed hearingsPublic broadcasting; writtensubmissions; expert opinions;public petitions.Presumption that same toolsas those for parent committeeapply.May vary according to subjectmatter (say public security)8

(b) Reforms to improve participationAs the table above indicates, there is both ample scopefor public participation in virtually all committees ofParliament and a wide range of tools for the public toparticipate. However, for this participation to be effectivea number of reforms are necessary.1. General Principles of Public Access and Participation:In order to ensure that parliamentary processesare open to scrutiny, the on-going amendments ofthe Standing Orders ought to include general principlesof openness. Such principles would include:i. The presumption of open committee hearings: In theabsence of specific and compelling constitutionalor legal basis for confidentiality or secrecy, all committeehearings shall be open to public observationand participation;ii. The principle of limited disclosure of confidentialreports: Even committee meetings that are confidentialshall be recorded and if appropriate, thoserecordings shall- to the extent possible- be releasedto the public with the secret or confidential informationredacted as appropriate;iii. The presumption of access to minority reports:Where a minority group within a committee writesa minority report dissenting from the conclusionsof the majority, the minority report shall be a publicdocument;iv. The right to know the basis of classification of information:When a government agency declares certaininformation classified and therefore not accessibleto any committee, Parliament and the publichave a legitimate need to know: a) the basis of theclassification; b) the duration of the classificationand c) the level of the classification (whether “TopSecret,” “Secret” or “Restricted.”).2. Access to information: Public participation andengagement with the legislature depend on theamount and quality of information available to thepublic, both as to the inner workings of the legislatureand the general government. As pointed outearlier, quite apart from the constitutional provisionson access to information, Parliament has specificconstitutional obligations to ensure public participationin its affairs. The implicit pre-condition for thedischarge of this obligation is the requirement thatthe administration of Parliament provide the publicwith the information that will facilitate that participation.With a view to meeting the obligation as topublic participation, the legislature needs to addressexisting limitations on access to information withinthe legislature. These limitations are both legal andtechnological.9

i. Legal issues: The most serious legal limitation onaccess to information is in the National Assembly(Powers and Privileges Act). Under sections 17 20and 18 21 the Act allows withholding of information.Under section 17 a person called to give evidencebefore a committee may refuse to produce suchevidence on the ground that “it is of a private nature”.However, Article 35 of the constitution whichprovides for access to information now allows foraccess to private information if such information isneeded to claim a right. Under section 18, publicofficers face two types of restrictions on giving evidenceto committees. First, they may not produceany evidence in Parliament on military matterswithout the consent of the president. Second, theymay not give out any correspondence or other evidenceaffecting the public service which the presidenthas directed not to be produced. These provisionsas well as section 20 of the Act - which saysthat questions of admissibility of evidence will bedecided on the prevailing practices of the Houseof Commons- are clearly inconsistent with the clearlanguage in the constitution, its open governmentethos and its explicit transparency guarantees; ittherefore needs to be amended.ii. Technology and transparency: Over the last decade,the Kenyan Parliament has been implementingmeasures to improve openness, participation andpublic scrutiny of parliamentary business. Criticalmilestones in these efforts include:● the introduction of the live coverage of parliamentaryproceedings by the media;● the 2008 amendments to open up the proceedingsof the committees of the House to public attendanceand to introduce a simplified procedurefor public petitions; and● the increased use of technology in the conduct ofits business which eventually resulted in a website,onto which important basic information hasbeen uploaded, allowing members of the publiceasier access to parliamentary business.These reforms were reinforced in July 2009 whenthe National Assembly announced an agreementwith a service provider to offer digital solutions toMembers of Parliament and to train them in theuse of information technology. Individual membershave set the pace for the future. For instance, whenthe current Speaker, Kenneth Marende, representedEmuhaya constituency in Parliament he maintaineda blog that served as a platform for interaction withhis constituents. Today that same blog is now a forumfor the public to interact with the Speaker.20 Section 17 says that:(1) Where any person ordered to attend to give evidence or to produce any paper, book, record or document before the Assembly refuses to answer any question that may beput to him or to produce the paper, book, record or document on the ground that it is of a private nature and does not affect the subject of inquiry, the Speaker may excusethe answering of the question or the production of the paper, book, record or document, or may order the answering or production thereof.(2) Where any person ordered to attend or to give evidence or to produce any paper, book, record or document before any committee refuses to answer any question that maybe put to him or to produce the paper, book, record or document on the ground that it is of a private nature and does not affect the subject of inquiry, the chairman of thecommittee may report his refusal to the Speaker with the reasons therefor; and the Speaker may thereupon excuse the answering of the question or the production of thepaper, book, record or document, or may order the answering or production thereof.21 Section 18 says that:(2) Except with the consent of the President, no public officer shall -(a) produce before the Assembly or a committee any paper, book, record or document; or(b) give evidence before the Assembly or a committee, relating to the correspondence of any naval, military or air force matter, nor shall secondary evidence be received by orproduced before the Assembly or a committee of the contents of any such paper, book, record or document.(3) Except upon the direction of the President, no public officer shall refuse -(a) to produce before the Assembly or a committee any paper, book, record or document; or(b) give evidence before the Assembly or a committee, relating lo the correspondence of any civil department or to any matter affecting the public service; and secondaryevidence shall not be received by or produced before the Assembly or a committee of the contents of any such paper, book, record or document which the President hasdirected shall not be produced.10

Other reforms have moved apace: The National AssemblyHouse Live Broadcast project has expanded withthe Kenya Communications Commission granting theNational Assembly broadcast licences with the expectationthat, eventually, the National Assembly’s ownmedia corps will take responsibility for the live coverage.22 Though these reforms are steps in the right direction,more needs to be done:Make the online resources interactive: Though thewebsite is up and running, the online resources arenot interactive. Parliament can leverage technologyto improve the level of interaction between membersand committees, on the one side, and the publicand Parliament on the other.User-friendly access: Though some good contentexists on the National Assembly’s site, these onlineresources are not always user-friendly to access andcontent developers, editors and copy-writers needto be recruited to improve access through betternavigation aids and easier to digest presentationstyle. In addition, even though the National Assemblyhas put out a large amount of information, oftenthe contextual information needed to allow readersand followers to make sense of the posted informationis missing. In this regard, more background information,perhaps in a simplified version, would goa long way towards improving public access to andpublic understanding of the affairs of the legislature.Improve outreach and communication: The opengovernment requirements of the new constitutionoblige Parliament to take measures to increaseawareness and opportunities for public participationthrough proactive outreach programmes.3. On integrity issues: Allegations of integrity failuresof individual members are a blot on the performanceof the Parliament and if not addressed, willeventually sap public confidence in the legislature.Though MPs- and Senators- will have a general immunityfrom prosecution and no civil or criminalproceedings may be instituted against any memberfor words spoken before, or written in a report to,the Assembly or a committee, it is a criminal offencefor a member or a senator to accept or receive anybribe, gift or reward so as to promote any matterbefore the Assembly, the Senate or any committee.However, the penal provisions of the Public OfficerEthics Act – which also cover Members of Parliament,are weak. What is currently lacking are effectivetools for identifying and rooting out bribery andrelated claims. Questions of integrity are politicizedand the Parliamentary Service Commission is inappropriateas an oversight mechanism for policingintegrity. To close the gaps in the current system thefollowing reforms are proposed:i. Alignment of relevant laws with Chapter 6 of theConstitution: In order to comply with Chapter 6 requirements,the Privileges and Immunities Act, thePublic Officer Ethics Act and the Standing Ordersneed to be amended to strengthen disclosures andthe way in which members’ interests are reportedand scrutinized. These amendments should alsospecify penalties for non-compliance.ii. Register of Members’ Interests: A register of members’interests should be opened and all membersof the National Assembly and Senators should beobliged to state their assets as well as companies inwhich they or their interests have interests.22 By introducing live media coverage of its proceedings, Kenya joined 60 other countries around the world that have enabled media coverage of parliamentary proceedings. See,Mwaura Kimani, Kenya: Parliament ushers in the Era of TV Live Coverage, http://allafrica.com/stories/200806231976.html (June 2008).11

iii. Gifts to Members: Gifts to members of a specifiedvalue should be reportable and of a higher thresholdprohibited. In particular, private companies’sponsorship of parliamentary activities should beprohibited as a “corrupt practice.”iv. House Ethics Committee: A House as well as SenateCommittee on member’s ethics - which is presumptivelyopen to the public- should be established andmembers of the public should have the right to petitionit when there is credible basis for impugningthe integrity of a particular Member of Parliament.4. On physical and institutional infrastructure: There-organization of Parliament to take account ofthe new constitution must include the developmentof physical facilities to meet the needs of thelegislature. Two areas are especially critical: provisionof adequate facilities for both the National Assemblyand the Senate and; provision of suitableand accessible space for all committees as well assub-committees.The physical requirements of the House should besupplemented with adequate human and institutionalskills. Committees must be supported toeffectively receive, analyze and work on the submissionsthat come from the public, experts andgovernment departments. In particular, committeehearings should include report-back requirementson the nature and scope of public consultations thathave taken place on any specific measures consideredby each committee.5. On government support for committees, especiallyon fiscal matters: The new fiscal managementprocess is modeled on that of the United Statesof America. This means that, though the formal responsibilityfor drafting the budget remains withthe Minister for Finance, Parliament will drive thebudget process. To discharge this burden, Parliamenthas established the Budget Office, which hasa core of technical staff to support parliamentarycommittees in scrutiny and formulation of counter-proposals.The Speaker will play an importantrole in regulating this new relationship betweenthe two arms of government and in order to do soon an informed basis, he or she needs to receivespecific support in this regard. To ensure that thisprocess works as constitutionally envisioned, thefollowing measures are proposed:i. Appointment of a high-level advisor for the Speaker:The responsibility of the advisor is to complementthe role of the Clerk in assisting the Speaker in understandingand playing a role in the interface betweenthe government and the National Assemblywith regard to fiscal management.ii. Directive to government departments to comply withparliamentary orders: Before the next elections in2013, the government should issue a general directiveto all government departments on the ramificationsof the new constitutional dispensation on thebudget process and spell out their responsibilitiestowards Parliament generally and towards parliamentarycommittees in particular.iii. Fiscal management focal point: The ParliamentaryBudget Office should establish and adequatelyequip a Fiscal Management Focal Point to lead theprocess of budget hearings. Working with both theBudget Office and the various departmental committees,the Fiscal Management Focal Point will coordinatethe Budget Office’s programme of publicconsultations and hearings.12

6. Improving public and parliamentary scrutiny ofdelegated legislation: The gaps in the scrutiny ofdelegated legislation and the resulting democraticdeficit highlight the urgent need for a mechanism tosystematically review delegated legislation againstthe law-making powers contained in the relevantprimary legislation. The necessary reforms in this regardinclude the following:i. Scope of coverage: The definition of subsidiary legislationis now urgent. Whether this will includeministerial proclamations and directives should beclarified either through the relevant primary legislationor, more generally, through amendments to theInterpretation and General Provisions Act, Chapter 2,the Laws of Kenya.ii. Providing access to subsidiary legislation: Thoughpublic access to subsidiary legislation is not directlyrequired by the constitution, the Interpretation andGeneral Provisions Act provides that “all rules andregulations made under an Act shall, unless a contraryintention appears in the Act, be laid before theNational Assembly without unreasonable delay.” Thisprovision, together with the transparency guaranteesof the constitution suggest that it is necessaryto furnish a mechanism for public scrutiny of subsidiarylegislation. This can be done in two measures:a. An appropriate amendment of the Interpretationand General Provisions Act that provides for a onemonth public commentary period before subsidiarylegislation comes into force.b. An on-line parliamentary index of all subsidiary legislationas a reference point on the available subsidiarylegislation.iii. Scrutiny of subsidiary legislation: Though a comprehensivereview of all subsidiary legislation isnot feasible at this point, a number of intermediatesteps short of an overhaul are possible and shouldbe adopted. These would include the following:a. Parliament should establish whether the subsidiarylegislation currently in force was laid before theHouse as required by law and if not, require that it beso laid.b. On an annual basis, the office of the Clerk, legislativeservices, should provide an index showing the dateson which subsidiary legislation was laid before theHouse. This will allow interested people to independentlymonitor compliance with this legal requirement,and to effect scrutiny.c. As in South Africa, the Interpretation and GeneralProvisions Act, should provide for the legislative reviewof proclamations made under subsidiary legislation.In practice, this issue has arisen when authorities,such as ministers, have purported to exercisepowers under primary or subsidiary legislation tomake appointments to public office, or decide ondates for the happening of a given event. One suchcase was the controversial appointment by the Presidentof Mr. Justice Aaron Ringera for his second termas Director of the Kenya Anti-Corruption Authority.Although the Legal Affairs Committee entertainedthe matter, it had no clear legal mandate to do so.It would be useful if this mandate was clearly providedthrough an amendment of the Interpretationand General Provisions Act.d. Finally, the rules of court made by the Chief Justiceor the Rules Committee should be availablefor wider public scrutiny. A special procedure thatpreserves the autonomy of the judiciary as an independentinstitution but also allows parliamentaryand public scrutiny of the rules should be designedand operationalized.7. Public access and participation in devolved governments:The principles of openness and participationas well as the reforms proposed in this briefapply- with appropriate modifications, based on theconstitutional mandates of county governments, tocommittees of County Assemblies.13

Public Participation andParliamentary OversightLegal Reforms and Policy OptionsAcknowledgmentAfriCOG thanks team members Charles Wanguhu, Michael Orwa, Maureen Kariuki, Beatrice Odallo, Anyona Obutu, Carole Theuri,Shwetaketu Radia, Stephanie Wairimu, Kadenge Kidiga, Noreen Wahome and Maureen Gachomo for their commitment to ourwork.AfriCOG also thanks Wachira Maina, Kipkemoi arap Kirui, George Kegoro for their contribution to our parliamentary work.The publication of this report is made possible by the support of the American and British people through the United StatesAgency for International Development (USAID) and Department for International Development (DFID).We are also grateful to the Open Society Initiative for East Africa (OSIEA) for their support to our work.The views expressed in this report are those of AfriCOG alone and do not necessarily reflect the views of USAID, UKAID, DFID orSUNY Kenya.September 2012