CONFLATED MANDATE? WHY PARLIAMENTARY REPORT ON CONTAMINATED SUGAR FAILED THE TEST OF OVERSIGHT

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By STEVE OGOLLA

Introduction

This article is not concerned with the partisan and parochial posturing that saw the Report of the Inquiry into Alleged Importation of Illegal and Contaminated Sugar in the Country, August 2016, by the Joint Departmental Committees on Agriculture and Trade thrown out by MPs. The article undertakes a strict scrutiny of Parliament’s approach to its oversight mandate. The central argument is that Parliament is either grossly ignorant of the limited role attaching to its constitutionally assigned oversight function, or it is deliberately involved in a chaotic and deleterious expansion of that mandate.

The Context

The Speaker of the National Assembly on 19th June 2018 directed that the Departmental Committee on Trade, Industry & Cooperatives and that on Agriculture & Livestock, jointly inquire into the matter of the contraband sugar laced with poisonous metals including mercury and lead, and report to the House. The substratum of the final Report is the directives by the Joint Committee to the investigative agencies to conduct further investigations.

Specifically, nine out of the sixteen Committee Recommendations are directives to various investigative agencies to investigate the circumstances under which contaminated sugar entered the Kenyan market. Five Recommendations are common sense observations such as requiring all sugar that is unfit for human consumption to be destroyed. Two Recommendations direct investigative agencies to investigate the Cabinet Secretary for Treasury, and the then Cabinet Secretary for Agriculture for complacency or possible connivance.

If left unattended, the Recommendations appear logical and consequential to the Committee’s Observations following the extensive hearing and submissions from sectoral players and relevant state and public officials. However, the problem of law is that Parliament, in its oversight mandate, is neither clothed with constitutional nor statutory powers to direct the functions of independent offices or investigative agencies. The Recommendations document Parliament’s dubious reputation for intrusion and displaces its core oversight function.

The Law

The Constitution is the founding law on oversight function of Parliament. Article 95(2) mandates Parliament to deliberate on and resolve issues of concern to the people. This mandate is further augmented by Standing Order No. 216 which empowers Committees to inquire into all matters relating to ministries and departments. In order to understand the scope, purpose and limits of Parliament’s oversight mandate in the post-2010 dispensation, Article 95(2) must be attentive to the authority of commissions and independent offices.

Article 249(2)(b) provides that commissions and holders of independent offices are independent and not subject to direction or control by any person or authority. The only exception to the rule of non-interference is located in the Office of Director of Public Prosecutions. Article 157(4) provides that the Director of Public Prosecutions has the power to direct the Police to investigate any information, allegation or commission of a crime.

Put differently, the Constitution rejects the notion that Parliament can direct anyone, without risking interference with the functional independence of those offices. Further, the influence of the overarching philosophy of “non-interference” effectively means that in a perfect constitutional and legal set up, all public officers ought to apply their offices in a manner consistent with their mandate, and without external directions.

The Role of Parliamentary Oversight

So if Parliament cannot direct other offices in the performance of their functions, how has the Constitution circumscribed its oversight mandate? This is a niggling challenge, but not without a solution. The point of departure when locating the role of Parliament in oversight is to appreciate, in the first instance, that oversight function is not an exclusive mandate of Parliament, and in the second place, recall that Parliament is part of the political wing of government and its oversight mandate must relate to political accountability.

The oversight function over state and public offices has been divided, separated and dispersed to various organs of government. The mandate to deliberate and resolve matters of public concern, in its proper context, therefore means that Parliament must always strive to locate, the public official responsible for malfeasance, and breach of public trust, and recommend to the full array of political accountability measures including censure and sacking. Further, the oversight role also means that Parliament must interrogate gaps in the law, and how the laws was manipulated, and propose necessary amendments to improve compliance.

Political accountability is a welcome consequence of breach of public trust by state and public officials. Article 73 requires state and public officers to preserve public trust, act in honesty, and with discipline and commitment. It also demands accountability for decisions and actions taken in the execution of public duties. Accountability is twofold: political accountability and criminal culpability. The threshold of political accountability is much lower than criminal culpability, and requires only prema facie evidence of breach of public trust.

Political accountability is within the remit of Parliament, committed to it by the Constitution, and for which no institution or organ is permitted to interfere. In the same manner, it is not open to Parliament to expand its mandate to include functions that are constitutionally assigned elsewhere, such as directing independent agencies to inquire into possible criminal culpability.

Kenya’s pre-2010 inglorious experience of clawing back at the functional and decisional independence of key offices of government and patronizing them for political benefit, makes it necessary to observe vigilance and respond to early signals of subtle interference often shaped through public benefit perspectives. In the exercise of its oversight function, Parliament must refocus its approach to match the limited role assigned to it by the Constitution, and not assume or reassign to itself functions located elsewhere.

Insofar as the Committee Report makes no single recommendation for political accountability or legislative improvement, the report was essentially dead on arrival, ex nihilo, amounted to nothing. Really.