This election—like the previous two—seems to be missing out on a critical aspect of the constitution: the central and consequential place of parliament. Instead, the country seems to only obsess over the presidency when, in constitutional terms, parliament has more substantive and potent powers than those of the president.
Let me explain why the constitution places equal if not higher primacy in parliament than the executive.
The constitution assigns parliament three substantive powers: law making, budget allocation and oversight. This sounds largely characteristic of what most parliaments in the world do but, for a number of reasons, it is not. First, because of the emphasis our constitution places on the rule of law as a foundational principle of governance; second, because of parliament’s significant power over the national purse; and third, because parliament has a quality control function of making sure the executive is properly implementing the law and prudently utilizing public resources.
Rule of law
Let’s start with the rule of law.
Our constitution emphasizes the centrality of the rule of law in all aspects of governance. Courts have explained that the constitutional principle of the rule of law means that every government or state action and every exercise of state power must find its legitimacy in a law or rule. In fact, courts often invalidate government actions that are not anchored in a law or rule.
Yet the constitution is explicitly clear that only parliament has the power to make any provision that has the force of law except where the constitution or a law—passed by parliament—specifically allows a person or body to do so. With the exception of county assemblies, there are very few instances where the constitution has conferred upon other persons/bodies the power to make laws or rules, and in fact none have been conferred on the president or the national executive. True, parliament does regularly allow the executive to develop rules and regulations to guide the implementation of primary statutes and its administrative actions, but even then, parliament retains a significant oversight role through the Statutory Instruments Act and other oversight tools to check whether the executive gets it right.
Essentially, because everything the president and the executive does must be guided by law, a parliament that appreciates its powers will always keep a leash on the executive, but not necessarily vice versa. Not vice versa because, if parliament needs to do something that is unpopular with the president or the executive, it would simply have to pass the law enabling such action and then require the executive to implement it. Critically, parliament retains the tools to force the executive’s compliance, including the ability to remove cabinet secretaries and in the extreme, to impeach the president or the deputy president. Perhaps, the only time the president has some formal power over parliament is through assent of laws—but even then the constitution overrides that power if a president refuses to timeously assent to a law passed by parliament or where the president expresses reservations with which the parliament fails to agree.
Budget and oversight
Perhaps the most consequential new power the 2010 Constitution gave to parliament—yet the one that the 11th and 12th Parliaments were most clueless about how to utilise—is the budget making power. Most of the power regarding the budget is assigned to the national assembly and includes the power (shared with the Senate) to determine the level of allocation between the national and county governments and the power to decide how much money to allocate to each organ of the national government and the state. Essentially, because money shapes a government’s priorities, parliament has significant sway—utilizing its formal and informal power—over what the president and the executive ought to focus on.
Essentially, because money shapes a government’s priorities, parliament has significant sway over what the president and the executive ought to focus on.
Moreover, after making the laws and allocating the money, parliament is accorded the oversight power which, properly utilized, means following up (mostly with the executive) to ensure proper implementation of the laws it has passed and the money it has allocated. Again, where the executive strays, parliament is accorded the tools to force the executive back into the straight and narrow.
The constitution added another critical element to parliament’s oversight powers—that of scrutinizing and approving most of the consequential appointments of a president, including cabinet and principal secretaries, ambassadors, etc. In fact, a creative and robust parliament would understand that the power to oversight appointments by the executive is elastic and, properly leaned on, could even be used to determine the fate of appointees and public servants of relative low rank within government.
But not a rogue parliament
This all not to say that parliament can ride roughshod over the executive by being either arbitrary, petty, retaliatory or punitive in how it exercises its law-making, money allocation and oversight powers. Far from it. Parliament still has to be guided by the constitution and its actions are open to challenge by the courts and then to objective audit regarding their constitutionality and legality. Still, the immense powers assigned to parliament mean that a suave parliament, operating optimally, likely has the upper hand over all the organs of state (the presidency included) in determining governance priorities.
I recognize that my arguments on parliament’s powers vis à vis those of president may be somewhat acontextual because they fail to acknowledge the complex nature of how the corporate entity that is parliament functions, and the diverse interests involved, and hence the difficulty in achieving parliamentary coherence. Still, those who have closely observed parliamentary design similar to ours in parliaments that are functionally efficient know that the design provides significant powers to individual members as well as to the corporate entity. In such parliaments, when individual members—and especially the head of parliament—understand and fully exercise their power, the potency of the law-making organ is mostly incomparable to that of the executive.
And yes, that nuanced context requires greater acknowledgement and consideration. However, my overall argument remains valid because it is validated by, and anchored in, our constitutional design.
Re-focus on members of parliament
Therefore, even as we become euphoric about presidential choices, we must appreciate where the true and most consequential constitutional power lies: in parliament. In the past, most of those we have chosen as MPs have been quislings or outright charlatans. They either are too clueless to understand the constitutional powers of their office or are so insatiably and gluttonously transactional that all they care about is using their office for self-aggrandisement. Or both. In fact most are both. Because of their nature and their small-mindedness, they fail to see the big picture—the immense power the constitution has conferred on the state entity to which they belong.
In the past, most of those we have chosen as MPs have been quislings or outright charlatans.
So, on August 9th, the decision of who we send to parliament will be just as important—if not more important—than who we vote for to become president.
And still while at it—if you have to advice the runner up, tell them to avoid entertaining emetic thoughts about a possible handshake and instead seek to become speaker of the National Assembly. Much like the position of governor in 2013, it will initially look small, but if he appreciates the magnitude of the power of that office and aligns his ambition with the dictates of the constitution, it might become the most consequential and the most sought after office in the future.