The Kenyan legislature is one of the three arms of government which are constitutionally established by the 2010 Constitution.[1] Each of these three arms of government has its functions and obligations which spawn from the separation of powers theory by Madison.[2] The Kenyan legislature is tasked with the role of making and amending laws as well as exercising an oversight role over the other arms of government. Chapter 8 of the Constitution[3] is entirely dedicated to the legislature and outlines the duties and functions of the two houses of parliament. Specifically, Article 95(4) mandates the parliament to exercise oversight over national revenue and its expenditure.[4]
Kenya is a developing country that for a long time has continuously depended on foreign aid and external borrowing to fund its budget.[5] The Constitution has given leeway to borrowing but under close control by the parliament, there has been tension and outcry in the country which is a result of increased high public debt.
Public debt is defined as all financial obligations attendant to loans raised and securities issued or guaranteed by the national government.[6] It can either be internal debt or external debt.[7] The Kenyan legislature is further mandated with the function of promoting the second-generation rights which for a long time remained unprotected and therefore Article 21(2) of the Constitution of Kenya does mandate that task to the parliament.
Despite these constitutionally entrenched provisions, the parliament has failed to exercise due diligence in regulating high debts and promoting social-economic rights. This is shown by the fact that government strategies and policies often fail to consider the long-term effects of high debt levels, leaving some of the most vulnerable members of society exposed to a worsening economic situation. The parliament itself has remained dormant and does not exercise oversight over the budgets and some loans which the government acquires. The legislature’s lackluster performance affects its effectiveness in promoting social and economic rights.
The public debt situation in Kenya has been constantly changing over the years since independence. A close look at the different regimes shows that during the reign of the first President of Kenya Mzee Jomo Kenyatta, there was low public debt, while his successor President Moi’s regime was characterized by high debt with a low level of economic growth. Afterward, during Kibaki’s era, there was a decrease in public debt with a growing economy. Finally, during President Uhuru’s era, there has been an increase in the public debt situation in Kenya. While all this was happening, the social and economic rights were not being progressively realized reason being they were not constitutionally entrenched.[8]
However, when the 2010 Constitution came into force, it afforded recognition and protection to the socio-economic rights. Article 21 of the constitution obligates the State to take measures including legislative measures to ensure the progressive realization of these rights. The Constitution further mandated the legislature with the work of formulating policies on borrowing by the Kenyan government. Over the past few years, it has emerged that Kenya has borrowed too much and is on the verge of exceeding the limit. The same has also been witnessed with respect to the realization of the socio-economic rights with Kenyans asking who has the duty to ensure that all this is being effected. The Kenyan legislature has therefore considerably failed in exercising due diligence to perform its legislative and oversight role to the government. This research aims at looking at the root problem as to why the legislature even after having been given the power by the people through the Constitution to oversight over high public debt and promote social economic rights has indeed failed to do so, and what appropriate measures can be taken to remedy the situation.
The theory that brings about the issues under study in this paper is the formalist approach as postulated by Norton.[9] It states that the principal task of parliament is law making and is centered on the decisional function of parliaments, in its capacity of decision-making of public policy. This theory borrows from the works of John Locke[10] and Montesquieu[11] on the separation of powers which identifies the legislature as a distinct arm of the government with its functions which differ with the other arms of government.
This theory advances the idea that the best legislature is one composed of persons of independence both in thought and in means.[12] In the 20th century during the period referred to as the decline of legislatures by Lord Brynce,[13] the Executive became powerful. It made a lot of policy decisions and formulated them due to the economic crisis and the effects of the two world wars. As a result of this, the legislature became weakened not because it was not developing but because it could not match the pace of the executive. Under this formalist approach, the study of legislatures remains on executive–legislative relations and in particular on the impact of the legislative procedures on policymaking by the Executive. This mirrored with the Kenyan situation, will be used to illustrate the impact of the executive policy decisions on the role of the legislature as a lawmaker, promoter of rights and a watchdog to the executive.
The concept of regulating high debts and promoting social economic rights by the Kenyan legislature
The role of Parliament in regulating high debts
In February 2022, standard bank group, Africa’s biggest lender by assets, listed Kenya among five countries on the continent facing elevated debt risks following the end of pandemic induced reliefs from rich countries.[14] But then the question is where did all this start? When did Kenya start borrowing to the extent of exceeding its limit?
Kenya inherited a much better economy from the colonial government though faced with a lot of economic disparities. The economy was growing and between 1963 and 1980, the average public debt was at 28.2 percent of the GDP against an average of 6.91 percent growth in GDP.[15] There was minimal debt accumulation and the debt situation was relatively sustainable. At that particular time, the debt crisis had not been an issue and therefore few policies and legislations regulated that field.
Between 1981 and 2002, there was an accumulation of public debt with low levels of economic growth. Public debt was at 59.2 percent while the annual GDP growth rate was at 0.5 percent.[16] It should be remembered that this happened during the era of President Moi, when the Constitution[17] had been weakened and the Executive had accumulated all powers including controlling the parliament.[18] The Parliament’s role had been reduced and it could not exercise its mandate well with regards to how the country’s economy was being run. Policies on borrowing and spending were formulated by the Executive and passed by the legislature which lacked its independence as the aspect of checks and balances was not adhered to.[19] This can be said to be the point where now the aspect of borrowing started to raise issues among economic experts and citizens in the country.
From the year 2003 and 2012, under President Kibaki’s leadership, there was increased economic growth with a decrease in public debt.[20] The public debt to GDP ratio declined from 61.53 percent to 34.26 percent. The annual GDP growth rate rose to 4.6 percent. Kibaki’s government implemented the economic recovery strategy for wealth creation (ERS), a reduction in budget deficits and the implementation of the medium-term plan (MTP).[21] This was all done through a well-organized strategy formulated by the legislature in consultation with the Executive. For the first time since independence, the Kenyan legislature was involved in regulating the debt situation in Kenya and this bore fruits.
Following the promulgation of the Constitution of 2010, which appreciated the principle of separation of powers, the government was empowered to borrow but then under close scrutiny and regulation by the Parliament[22]. This notwithstanding, the period between 2013 to date witnessed an increase in the stock of public debt while economic growth hit rock bottom. The public debt increased from 1.894 trillion (June 2013) to 7.712 trillion (June 2021).[23]
Kenya is now likely facing debt distress with economic experts suggesting that Kenya might be taking Ghana’s trajectory which could potentially pose a major risk to the country’s economy. It is now evident that even after the enactment of a litany of legislations regulating borrowing, there is one player who has failed to exercise their mandate.
The parliament has drastically failed and has overly been criticized for not regulating high debts in Kenya.[24] Pursuant to the provisions of the 2010 Constitution and the Public Finance Management (PFM) Act, the Kenyan legislature regulates the public debt situation through various ways. Among the powers granted to the parliament is exercising oversight authority over the consolidated fund and all the funds in general,[25] coming up with legal frameworks governing how and when to borrow,[26] enacting laws to regulate the debt ceiling[27] and managing the use of the loans borrowed.[28]
Parliament’s role regarding consolidated fund
The Constitution of Kenya 2010, under Article 95(2) provides that among the roles of the National Assembly is to deliberate on and resolve issues of concern to the people. It is further tasked with the role of exercising oversight over national revenue and its expenditure. Article 206 of the Constitution read with section 50(7) of the PFM Act provides that the cabinet secretary is mandated to ensure that the proceeds of any loan are paid into the consolidated fund. The Constitution in Article 222(1) empowers the National Assembly to authorize the withdrawal of money from the consolidated fund. The provisions of Article 95 (4) (c) of the Constitution compound the matter by placing the oversight authority over the national revenue and expenditure to the National Assembly.
The consolidated fund is where all the national revenue raised by the government is kept. The current trend in Kenya is that parliamentarians are not concerned with this and do not keep a close eye on the other officials of government to ensure prudent spending and due process is followed in this matters pertaining to the national revenue.[29] In fact, some loans have been borrowed and the money has not been paid into the consolidated fund but instead has ended up being embezzled by the government officials.[30] The Kenyan legislators have only been condemning the acts of the treasury in public rallies but when they go to their chambers where they are expected to oversight and question some of these things they have ended up bargaining for more perks to benefit themselves.[31] This is what led Aden Duale former MP Garissa town and the current cabinet secretary in charge of defence to state that MPs are responsible for Kenya’s high debt and not the President.[32]
Regulating how and when to borrow by the parliament
How the loans are being borrowed is another sector where the legislature has turned a blind eye over it. Article 211 of the Constitutionprovides that: parliament may by legislation prescribe the terms of borrowing and impose reporting requirements. It further provides that the Cabinet Secretary in charge of finance shall by the request of either of the two houses within seven days provide information concerning the total indebtedness, the use made on the proceeds of the loan, the mode of servicing the loan and the progress made in the repayment of the loan.[33]
A close look at Article 211 shows that this provision tasks the parliament to perform three functions which are; prescribing the terms of borrowing, establishing rules as to when the Cabinet Secretary is supposed to write reports to the Parliament and finally, the role of scrutinizing the reports.
However, many are the times that the Kenyan government has borrowed and then forwarded a report to the parliament to approve it. The role of Parliament has been relegated to post action audit reports which are subject to long administrative delays.[34] The Kenyan legislature severally been manipulated by the Executive by being given incentives in the form of allowances so that they can approve each and everything that comes to them. A Kenyan journalist was heard saying that the parliament has failed in its job to dictate how and when to borrow and has approved nearly every request to incur more debt.[35]
Parliament’s role in regulating borrowing
The Parliament was able to make a law to regulate public borrowing in Kenya which is the PFM Act 2015. The Act under section 50 places the burden of borrowing onto the national treasury. Section 50(2) of the PFM Act provides that the national government may borrow money in accordance with the act or any other legislation and shall not exceed the limit set by the parliament. The same section provides that the government may only borrow for the budget as approved by Parliament. It further provides in subsection (5) that Parliament shall provide for the thresholds for the borrowing entitlements of both the national and the county governments. The parliamentarians have also enacted other laws such as the Public Finance Management (National Government) Regulations of 2015, External Loans and Credits Act among others.
All these provisions both in the Constitution and other statutes show that the Kenyan legislature is regarded as an instrumental body in monitoring and exercising oversight over the Executive in the management of finance and specifically the loans. However, making laws is one thing but whether the laws are adhered to is another set of things. The members of parliament need to rethink how the laws they make to regulate borrowing need to be enforced. A certain article illustrates that the Kenyan parliament has tried to legislate in an effort to reduce the public debt by introducing new taxes such as taxing the technological market and products e.g. Jumia but then this has not been effective.[36] The Kenyan Parliament lacks the technical capacity to scrutinize and analyze the debt situation and legislate on the same in an effort to cure the situation.
The legislature as a debt manager
Section 31 of the PFM Act provides that the Cabinet Secretary shall submit to the Parliament every four months a report of all loans. The Cabinet Secretary is also bound to submit to the Parliament not later than 7 days a report of all loans made to the national government at the request of the legislature when they are canvassing on such matters. Section 33 of the PFM Act provides that on or before February 15 each year, the Cabinet Secretary shall submit to parliament a statement setting out the debt management strategy of the national government over the medium term. The parliament also manages the debt situation in the country by setting the limit for the national debt as provided in section 15 (2) (d). The debt ceiling currently stands at 10 trillion after the parliament raised it from 9 trillion in July 21 2022.
Parliament also has the legal role to revise public debt during budget formulation through budget policy statements and medium term debt management. However, the practice in parliament is not really concerned with all this during budget formulation and this therefore renders it ineffective in its mandate as a manager of the debt. The current practice is that once parliament passes the finance bill, the only time it ever gets involved again in debt management is when reports from the office of the Auditor General are filled which are often delayed for as long as three years.[37] The Kenyan legislature has gone ahead to form financial audit and money-related committees which include the public accounts committee, budgetary and appropriation committee among others. These committees are involved in budget preparation, approval, and implementation and monitoring. The Constitution requires the budget estimates to include proposals on borrowing and other forms of public liability which are likely to increase the public debt.[38] However, the practice in Kenya is that parliamentarians are only involved in deliberations to approve the release of the funds but are not involved in all the other stages of budget making as envisaged by both the Constitution and the PFM act.
The role of parliament in promoting socio-economic rights
Social economic rights are also known as second-generation rights. The government is the duty bearer with respect to promoting and ensuring the progressive realization of these rights. The government has both a positive obligation and a negative obligation with respect to these rights. The positive obligation is to provide and enable the full realization of these rights[39] while the negative obligation of ensuring that no factors are available which might hinder the enjoyment of these rights[40]. These rights are recognized globally and they are nevertheless dedicated to an entire covenant known as the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 2(1) of the ICESCR provides;
Each state party undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical to the maximum of its available resources with a view to achieving progressively the full realization of the rights recognized in the covenant by all appropriate means including particularly the adoption of the legislative measures.
The Kenyan legislature therefore promotes social and economic rights by making laws aimed at promoting these rights and deliberating on revenue allocation to the county government which plays a central role in promoting these rights.
Law-making function of the parliament in an effort to promote socio-economic rights
Parliament is tasked with the role of coming up with legislative measures aimed at promoting these rights. This is done through making laws that have the sole purpose of protecting, promoting and fulfilling socio-economic rights. The economic and social rights are provided for under Article 43 of the Constitution of Kenya. They include the right to the highest standard of health care, right to housing, right to food, right to clean and safe water, right to social security and right to education. Article 21(2) echoes the provision of ICESCR by providing that the state shall take legislative policy and other measures including the setting of standards to achieve the progressive realization of the rights guaranteed under Article 43. Parliament has continuously promoted these rights by setting legal frameworks and policy guidelines on the same, which are aimed at preventing potential violations of these rights.
A close look at the right to housing is that the parliament has not legislated on the area of eviction and therefore courts must turn to international authorities.[41] This has caused delays and inconsistency in access to justice.
Allocation of funds to the counties by the legislature
The devolution structure adopted by the drafters of the constitution delegated some of the functions which were initially done by the national government to the county government. The counties then became service providers to the people, as that was one of the obligations of devolution.[42] Such services include the provision of health care which is now the duty of counties.[43] These counties need to be funded and Article 217 states that once every five years, the senate shall by resolution determine the basis for allocating the counties their share of national revenue that is annually allocated to the counties. The senate here plays a major role in promoting these rights by ensuring that adequate funds are allocated to the counties to finance their activities.
However, the legislature has failed to promote these rights by not coming up with a standard formula that will ensure that these rights are enjoyed equally in all parts of the country. In the marginalized areas due to lack of funding these rights have been retrogressively realized. The counties are not adequately funded yet they play a major role in promoting socioeconomic rights. The parliamentarians have been accused of power and supremacy struggle instead of fighting for their counties to receive adequate money.[44]
The legislature bears the function of exercising oversight over other state organs through the doctrine of checks and balances and cuts across the two levels of government. The parliamentarians are not able to monitor the functions of the cabinet’s secretaries and ensure their policies are aimed at promoting these rights. Rather the Kenyan legislature has isolated itself to only making laws that they do not follow up to ensure adherence. Parliament through the principle of judicial review has seen many of its laws declared unconstitutional by the courts and therefore hinder the process of realizing these rights.
The recent case of the Institute for social accountability and 1 other v the national assembly and 4 others[45] which declared the CDF unconstitutional is one among the ways in which social economics rights are being retrogressively realized. Numerous cases of embezzlement of funds meant for the realization of these rights have been witnessed including the COVID-19 billionaires,[46] and the alleged looting of Nairobi county funds by former Governor Sonko among others. All these can be attributed to the county and national assembly members failing to exercise their oversight authority over the executive arms and this ends up derailing efforts of promoting these rights.
Recommendations to the Kenyan legislature
To sum this up, a sound legal framework is required to ensure sound management of public debt. The Kenyan legislature has to legislate to solve all those lacunas that do exist with respect to issues of public debt so that the process can be clear and explicit. The Kenyan legislature should and must follow the laws that they establish without being driven by selfish ambition to try and evade the law. Additionally, the Kenyan parliament passes these laws by way of a majority and on many occasions, the majority are part of the sitting government, therefore the parliament has continuously been deprived of its independence by the executive, and major policy decisions are made by the executive and enforced by the majority of parliamentarians. This has caused an increase in the public debt because the executive wants to increase the debt ceiling and the legislature is pressed at the corner to approve. It must not be forgotten that the debt ceiling has been raised to 10 trillion in Kenya now by the parliamentarians a wave that started with the former executive led by President Uhuru Kenyatta.
Parliament should be the custodian of public interest with the authority to protect and preserve public property. The parliament should also enact a law that will include public participation in all decisions and laws made by the parliament concerning public finance matter so that whenever they enact a law it shall have the sovereignty of the people and therefore not subject to review by judiciary. Finally with regards to high public debt, parliament should move and pass a resolution in line with section 15(2) (d) of the PFM act to set the public debt limits to be pegged to real economic performances. This will ensure that public debts are maintained at sustainable levels.
In a nutshell, the functions assigned to the Kenyan parliament are explicit in paper but the way the legislature actualizes them raises concern to the people. The Constitution of Kenya 2010 was promulgated to bring an end to the existing problems which among them was the high debt and the lagging behind of the economic and social rights. A lot of provisions were incorporated into the Constitution on how the legislature would solve these issues while also granting it its own supremacy and independence. However, the situation has not changed to a greater extent despite efforts by the two houses to try and formulate laws to ensure that the debt situation in Kenya is controlled and also that rights are enjoyed. To get the best out of our Parliament, the parliamentarians should desist from being used as agents of the executive and instead perform their functions in a prudent, independent and effective manner as postulated by Norton while elaborating on the formalist approach theory.[47]
Even as Kenyans sit and wait to see parliamentarians pass the newly proposed bill 2023, this should be a clarion call to them that they should exercise their powers with an independent mind and an eagle-eyed vision so as reach a fair and just conclusion that will implicate a law that does not burden the people. The legislature ought to have in mind that it is a sovereign body that represents the people and should therefore serve the people adequately, efficiently and effectively.
The author is a second-year law student at Moi University passionate about human rights, constitutional and commercial law.
Email: ndolokajwang@gmail.com
[1] The Constitution of Kenya 2010, Art. 1.
[2] J Madison, Separation of Powers, Federalist Paper No.47, 323-331,30 January 1788 chapter 10 document 14 The University of Chicago Press ,available at http://press-pubs.uchicago.edu/founders/documents/v1ch10s14.html accessed on 17 May 2023
[3] CoK (n 2) chapter 8
[4] Ibid Art.95(4)
[5] Allan Olingo ,East Africa Countries Go On a Loan Binge To Bridge Huge Budget Deficits, The East African Magazine , January 3 2022
[6] CoK (n 2) Art.214(2)
[7] Allan (n 6)
[8] Arwa, Jotham Okome, Litigating Socio Economic Rights in Domestic Courts: The Kenyan Experience, (2013) volume 17 Law Democracy and Government 419.
[9] P. Norton , Parliaments: A Framework for Analysis in P Norton (edition) Parliaments in Western Europe ( London: Frank Cass 1990), 1-9
[10] The Lockean Constitution: Separation of Powers and the Limits of Prerogative (2011) 46:3 McGill LJ 543 available at< https://id.erudit.org/iderudit/1005132ar> accessed on 17 May 2023
[11] M.J.C Viles , Constitutionalism and The Separation of Powers(2nd ed.indianapolis, Liberty Fund 1998) chapter 4
[12]Norton (n 10)
[13] J. Bryce, British and French Parliaments in Comparative Perspective (1st ed. Routledge 1971),1-12
[14]The Weekly Review , Issue no.18 ,January ,1,2023
[15] B.Kiriga, H.Chemnyongoi and P. Wachira, Discussion Paper No.245 of 2020 on Optimization Of Public Debt And Its Impact on Kenya’s Economic Growth ( The Kenya Institute For Public Policy Research And Analysis, 2020)
[16] Economic Survey 2021( Nairobi Kenya National Bureau of Statistics ,2021) available at https://www.knbs.or.ke accessed on 17 May 2023
[17] The Independence Constitution of Kenya 1963
[18] Korwa G.Adar and Issac M. Munyae, Human Rights Abuse In Kenya Under Daniel Arap Moi,1978-2001,(2001) 5.1 Africa studies quarterly 5-6
[19] Ibid
[20] B Kiriga (n 16)
[21] ibid
[22] CoK (n 2) article 211
[23] ibid
[24] The weekly review (n 15)
[25] CoK (n 2) article 50
[26]Ibid article 211
[27] Public Finance Management Act 2012 Act No.18 of 2012 , section 50
[28] Ibid section 31
[29] CoK (n 2) article 211
[30] P Wafula, Audit: Sh215b Eurobond Cash Unaccounted for, the standard ,May 2017
[31] Why MPs Bear Huge Blame for Kenya’s Debt Problems, The Standard, Available At: https://www.standardmedia.Co.ke/business/financial-standard/article/200133130/-mps-bear-huge-blame-for-Kenyas-debt-problem,accessed on 17 May 2023.
[32] MPs Are Responsible For Kenya’s High Debt, Not The President- Duale ,People’s Daily Newspaper, Available At: https://www.p.d.co.ke/news/mps-are-responsible-for-kenyas-high-debt-not-the-prersident-DUALE-81154, accessed on 17 May 2023.
[33] CoK (n 2) article 211.
[34]Njeru (n 1).
[35] Waihiga Mwaura, Letter from Africa: Kenyans Protest over Growing Debt, east Africa herald , April 8, 2021
[36]Leo Kipkosgei, Victor Kwamboka, Kenya’s Public Debt Distress: Issues and Scenarios, Institute of Economic Affairs ,November 25,2020
[37] The Role Of Parliament In Public Debt Oversight In Kenya (National Democratic Institute For International Affairs July 2022),27-38
[38] CoK (n 2) article 211
[39] Justice Mumbi, In The Case Of Luco Njagi &21 Others Vs Ministry Of Health And 2 Others 2015 eKLR
[40] Ibrahim songor Osman vs AG Petition No.2 of 2011
[41] Mitu-Bell Welfare Society V Kenya Airports Authority& 2 Others; Initiative For Strategic Litigation In Africa (Amicus curiae)(petition 3of 2018)[2021] KESC 34(KLR)(11 January 2021)
[42] CoK (n 2) article 174
[43] Ibid Schedule 4
[44] Waihiga Mwaura (n 36)
[45] Institute For Social Accountability &Another V National Assembly Of Kenya &4 Others(2020) eKLR
[46] Oketch A & Ngugi B, COVID Millionaires Scam: Sh 17 Billion Remains Unaccounted for at Kemsa, Nation Newspaper , Sunday MAY 08, 2022
[47] Norton (n 10)
