It’s all about imperial presidency

We are mad at parliament for many things. The outrageous remuneration the House has accorded itself.

Its refusal to stand up for justice for the families of the dead and displaced during last year’s political crisis.

And, just last week, its decision that we should pay for what was already stolen from us — the Mau Forest.

But, last week, when parliament stood up to insist that the president had overstepped his powers with the reappointment of the head of the Kenya Anti-Corruption Commission and his two deputies, it came down squarely on the side of public opinion — and earned itself accolades for having done so.

It has been argued — and, in fact, was argued during the parliamentary debate — that our Constitution is supreme — and it gives the president powers over all public appointments.

But it has also been argued that parliament’s breach of the letter of the law was entirely more fundamental — that parliament’s role is that of making law. Full stop. And that it is solely the judiciary’s role to interpret the law.

In effect, the question is whether or not parliament breached the principle of separation of powers.

However happy we may all be with the vote in the House last week, this is a concern that we would do well not to try to argue away legalistically.

As we all know, legalese can take round in circles, especially when the law is being used to essentially justify bad behaviour or score political points.

There is a principle at stake and we would do well to respond to it.

But, in doing so, we would also do well to respond to the limited options available to the House, as representatives of the people (at least theoretically and sometimes, rarely, in practice) when either the executive or the judiciary behaves badly.

When the executive is told it's behaving badly and refuses to respond, what is the House to do?

When the judiciary’s past decisions, relating to the bad behaviour of the executive, make the House unwilling to put its faith in it as a control on the latter, what is the House to do?

Withhold approval for expenditure by the same? Is that really all that it can do?

Which brings us back to the core motivations behind the drive for Constitutional reform.