Okoth-Ogendo speaks of a paradox, or rather a dilemma regarding African countries. He questions the way a country can have ‘constitutions without constitutionalism’.[1] He goes on further to show how African countries are in this dilemma. Kenya itself was not exempted from it. Thus, by the end of the twentieth century and the dawn of the twenty-first century, there were cries for a new constitution in Kenya. The president was imperial and dictatorial—controlling both the executive and the legislature. In response to this cry in 2005, the Bomas Draft[2] was completed but it seemed not to fully answer the questions of Kenyans. These questions included the rights of minorities regarding gender equality, women’s reproductive health rights, sexual minority rights and Kadhi courts as has been recorded by Ambani and Sipalla.[3] In August 2010, the new constitution was promulgated and that became the grundnorm of the country as has been suggested by scholars.[4] This was a panacea to heal a wounded nation having come from a grave time of the post-election civil unrest.[5]
This constitution was applauded in Kenya and outside Kenya by many and was termed a transformative constitution.[6] This has been the pride of Kenyans ever since. However, in the attempt to progressively realise the constitution, there have been certain loopholes in the constitution that seem to take Kenyans back to the post-colonial epoch before the promulgation of the Constitution of Kenya 2010. One such instance is article 115 of the Constitution of Kenya.[7]
This article is a quagmire in itself as it seeks to uphold the principle of separation of powers but fails to do so by overstepping. The executive, through the presidential assent, is to apply checks and balances to the legislature but sub-article 1(b) of Article 115 goes on further to give the president a legislative role.[8] The section provides that the president gives recommendations to bills that he has failed to assent to. This in itself seems innocent at face value, but the problem comes in when the legislature fails to enact the bill because they cannot muster the two-thirds majority required to override the veto. Thus, the only way such a rejected bill can be passed is if the legislature incorporates the recommendations made by the president.
This paper is divided into five parts. Part I seeks to explain the origin of the presidential veto and its importance. Part II analyses the presidential veto power and cites instances of bills being vetoed by the president. Part III is an attempt to see how the legislature and the judiciary have interpreted this phenomenon. Part IV is an interrogation of the current president and the possibilities in his tenure regarding the veto. Part V provides solutions to remedy this quagmire.
- Origin and importance of the presidential veto
The etymology of the word veto is the Latin word vetare which is translated to ‘I forbid’. Black’s Law Dictionary defines it as:
‘The veto-power is a power vested in the executive officer of some governments to declare refusal to assent to any bill or measure which has been passed by the legislature. It is either absolute or qualified, according to the effect of its exercise is either to destroy the bill finally, or to prevent its becoming law unless again passed by a stated proportion of votes or with other formalities’.[9]
The use of this veto power can be traced to ancient Roman times, as early as 509 BC.[10] After overthrowing the monarch, the patrician consuls who were chosen from the high class (were two in number and would occupy the position for one year) would exercise the power over each other. Later the plebeian tribunes who were installed to represent the needs and wants of the common people would exercise their veto power over the consuls. The importance of this veto power as explained by Watson was ‘as a means of checking the arbitrary exercise of political power’.[11]
In the United Kingdom, the Royal Assent is required for every bill to be passed. It is important to note that no monarch has ever vetoed a bill since 1707 when Queen Anne withheld her assent from a Scottish militia bill.[12] Nonetheless, it was installed as a way in which the monarch, the executive head, can impose checks and balances on the legislative arm which is the House of Commons.
The United States being a colony of the UK, mirrored what their imperial master was using with a few modifications that would best suit them. While they were in the process of formulating their new constitution, there was contention on whether to adopt the form of presidential veto used in Massachusetts or the one used in New York.[13] Watson quotes James Madison who advocated for the use of the veto used in New York which constituted of a committee of the president and a few members of the Judiciary who would practice this veto. Elbridge Gerry advocated for the one being used in Massachusetts whereby only the President had this power. Eventually, this is what was adopted by the country and still is used to date.[14]
While writing Federalist Paper Number 73, Alexander Hamilton explored the importance of the presidential veto. He says that: ‘it establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body’.[15] He emphasises that this power is important as it enables limiting the legislature’s power to enact laws.
Regarding the criticisms of whether this power could also be used selfishly by the president and he would fail to assent to good laws, he has this in reply:
‘It may perhaps be said that the power of preventing bad laws includes that of preventing good ones; and may be used to the one purpose as well as to the other. But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments. They will consider every institution calculated to restrain the excess of law-making, and to keep things in the same state in which they happen to be at any given period, as much more likely to do good than harm; because it is favorable to greater stability in the system of legislation. The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones’.[16]
Further, the clause that the veto can be overturned by two-thirds of Congress limits this power accorded to the President.[17] This shows the origin of the veto power in the United States and how the founders justified its use.
The South African Constitution being applauded as being transformative[18] was mirrored by the drafters of the Kenyan Constitution. The clause of ‘presidential recommendations’[19] was borrowed from the South African Constitution.[20]
The above shows the origin of the veto power from the Roman epoch to the United Kingdom monarchy, to the formation of the United States Constitution of 1788, and lastly to the South African Constitution of 1996. It further shows the importance of having this veto power by the executive arm, in that it is a form of limiting the power of the legislature. It is a necessity in the hope of implementing the classical doctrine of separation of powers and further promoting good governance. In the following section, I will endeavour to explore the dilemma that has come about regarding this presidential veto power. If it is a good thing, why is it proving a problem?
- The dilemma regarding the presidential veto
To understand this dilemma, we need to probe this article intricately, dissecting it to fully fathom it. Article 115 1(b) of the Constitution of Kenya provides that after the President receives a bill, he or she can refer it back to the parliament noting any reservations concerning the bill.[21] Sub-article four goes on further to state that if the parliament after considering the reservations, fail to amend the bill, they can pass it by a vote supported by two-thirds of members of the National Assembly and two-thirds of the delegations in the Senate if the bill requires its approval.[22]
The above provision is the issue that is in question which is whether these reservations made by the president give him a legislative role. From Part, I of the paper, the importance of the presidential veto has been out rightly put. The issue comes when the president can make ‘reservations’ as per subsection 1(b),[23] and these reservations become law when parliament fails to muster the two-thirds majority required to pass the bill without presidential assent. Doesn’t this give a president legislative powers?
From the inception of the Constitution of Kenya 2010 in August 2010 to 2022, a total of nineteen bills have been vetoed, and later approved with the recommendations made by the president (President Uhuru Muigai Kenyatta).[24] Walter Khobe goes on further to list the vetoed bills as follows: ‘Kenya Information and Communications (Amendment) Bill 2013; the Retirement Benefits (Deputy President and Designated State Officers) Bill 2013; the National Flag, Emblems and Names (Amendment) Bill 2013; the Public Procurement and Asset Disposal (Amendment) Bill 2013; the Central Bank of Kenya (Amendment) Bill 2014; the Statute Law Miscellaneous (Amendment) Bill 2014; the Police Service Commission (Amendment) Bill 2014; the Excise Duty (Amendment) Bill 2015; the Public Audit Act 2015; the Higher Education Loans Board (Amendment) Bill 2015; the Ethics and Anti-Corruption Commission (Amendment) Bill 2015; the Finance Bill 2017; the Refugee Bill 2017; the Finance Bill 2018; the Law of Contract (Amendment) Bill 2019; the Finance Bill 2019; the Parliamentary Pensions (Amendment) Bill 2019; the Employment (Amendment) Bill 2019; and the Parliamentary Service Bill 2019’.[25]
I will endeavour to shed light on one of these bills to show the power given to the president and how he can be selfish by pushing for his agendas. This bill is the Retirement Benefits (Deputy President and Designated State Officers) Bill 2013.
- The Retirement Benefits (Deputy President and Designated State Officers) Bill, 2013[26]
Initially, this bill was to provide pension and retirement benefits to persons who held the offices of Deputy President, Prime Minister, Vice-President, Speaker, Deputy Chief Justice, or Chief Justice after 1 January 1993. It passed through all the required stages of legislation as prescribed by the constitution and was passed by the National Assembly in April 2015. It was submitted to the president on 13 May 2015 for assent but he declined to do so. He resubmitted the bill back to the National Assembly on 27 May 2015 with a memorandum with recommendations.[27] This memorandum included the exclusion of certain offices which included the Prime Minister and the Vice President.
This had a personal implication for the president as the leaders of the coalition of the major political opposition parties,[28] Honourable Raila Amolo Odinga and Honourable Kalonzo Musyoka held the offices of Prime Minister and Vice President respectively. This would imply that he did it out of a selfish want to go after the opposition, yet they merited to have the pension as they did serve the country in the said capacities. The bill was then passed by the National Assembly on 18 June 2015. Then assented on 19 June 2015. Even the haste at which it was assented further shows the personal implication that this bill had to the president.
These leaders of the opposition parties took the matter to court in the hope that the court would find the recommendations made by the president donned him a legislative role and thus going against the doctrine of separation of powers that the constitution advocates for. The petition was heard in the High Court and the bench that comprised of Justices Pauline Nyamweya, Wilfrida Okwany and John M Mativo unanimously held that the reservations made by the president were provided for by the constitution. The constitution does allow the president to give his reservations, or rather his recommendations to the parliament when he denies assenting to the bill.[29]
This is one instance out of eighteen others where the president used the power vested in him for his gains. To push his agenda. Instead of being a watchdog over the legislature and promoting good governance, the president takes advantage of this power to further his selfish wants. This is where the problem comes in. The dilemma regarding the presidential veto. In the next section, I will endeavour to discuss how the legislature and judiciary interpret this phenomenon and what their stands are.
- Legislative and judicial interpretation of the presidential veto
The Constitution of Kenya 2010 is transformative as it sets out an article( Article 259) that speaks of how it is to be interpreted.[30] This is well put out by Willy Mutunga.[31] The organs of the government are mandated to interpret this constitution as stipulated in the article.[32]
Walter Khobe writes about the stand of the Speaker of the National Assembly regarding this matter saying ‘he has adopted an interpretation of article 115 to the effect that the counter-proposal (the ‘legislative recommendation’) presented by the president is deemed to be accepted by Parliament so long as Parliament fails to marshal a super-majority of two-thirds of members in each chamber to insist on the original version of the bill’.[33]
He quotes the Speaker (who was the Hon. Justin Muturi) saying:
‘despite the lack of an express provision in Article 115 requiring the President to submit his recommendations on a Bill, the Constitution does not prohibit this practice either, in line with the cardinal principle of interpretation of the law that whatever is not prohibited by the Constitution or any law is presumed to be allowed by the same. A keen reading of Article 115 reveals that the President in referring a Bill back to Parliament has a mandatory obligation to note his reservations but may choose to include or not to include specific recommendations on how to deal with the reservation’.[34]
The view of the judiciary is quite similar to the one of the Legislature. In the case of Nation Media Group Limited & 6 others v Attorney General & 9 others, where the petitioners were pleading against the legality of the president giving his recommendations after denying to assent to the Kenya Media Council Act 2013[35] and the Kenya Information and Communications (Amendment) Act 2013,[36] judges of the High Court Isaac Lenaola, Mumbi Ngugi and W Korir held in consensus that the actions of the president were constitutional.[37] The Attorney General in this case had this to say:
‘Article 115(2) and (4) of the Constitution show that Parliament had the discretion to consider and pass the Bill just as it was presented to the President a second time, or amend the Bill in light of the President’s reservations, or partially amend it to accommodate some of the President’s reservations. The President merely made suggestions for amendment like any other citizen would, and Parliament had the discretion to accept or reject the proposals and recommendations’.[38]
It would have proven an uphill task for the National Assembly to muster the two-thirds majority required to enact the bills without the president’s assent. The parliamentarians had only two options: to discard the bill or enact the bill with the recommendations given by the President.
The same stand was taken in the case of Pevans East Africa Limited & another v Chairman Betting Control and Licensing Board & 7 others.[39] The President had recommended to the parliament to increase the taxation of the Betting Company to 35%. The petitioners were against this claiming he overstepped his mandate pertaining to Article 115. Judge John Mativo held that this mandate given to the president is ‘to prevent the arbitrary or capricious use of the power’ by the parliament.[40] The president is a watchdog over the parliament, to provide checks and balances. This stand by the judiciary is consistent in numerous other cases.[41]
It is important to make mention that the legislators at some point were fed up with the ‘legislative recommendations’ that the President was giving. They claimed that the recommendations hampered the legislative process. Prolonging it with incessant recommendations.[42]
It is evident that both the Legislature and the judiciary regard the action of the President to confer his recommendations to Parliament as constitutional and that it does not violate the principle of separation of powers. It is at the discretion of the Parliament to muster a two-thirds majority if they are displeased with these recommendations. In the next section, I will interrogate the current state of the country. I will show just how much power the current president has over the legislature and the amount of damage he can cause with this power.
- Lawmaker-in-chief?
On 15 August 2022, Dr. William Samoei Ruto was announced as the winner of the 2022 presidential elections. Consequently, on 13 September 2022, he was sworn in by the Chief Justice as the fifth President of Kenya. Swiftly after being sworn in, he was able to pull parliamentarians who were previously in the opposition party to his Kenya Kwanza coalition, strengthening his position in the parliament. These leaders were from Devolution Empowerment Party (DEP), United Democratic Movement, and Movement for Democracy and Growth Party.[43]
Even in the process of nominating members to the National Assembly and the Senate, the ruling party garnered more seats, which is expected as they are in the driver’s seat. In total United Democratic Alliance together with the other parties under the Kenya Kwanza Coalition in the National Assembly has seven out of the twelve possible members while the opposition has five. It’s a similar situation in the Senate where the ruling coalition has eleven out of the twenty possible nominated members.[44] This brings the total tally of the number of Members of parliament affiliated with the president to one hundred and ninety-five while those affiliated with the opposition to one hundred and fifty-two, the last two being independent candidates. A similar situation is in the Senate whereby, thirty-six are affiliated with the president and thirty to the opposition.[45]
Every president would want a legislature that is friendly and one that would further their agenda. President Ruto is not exempted from this bracket. This explains the jubilation he had after his choice for the Senate Speaker former Kilifi Governor Amason Jeffah Kingi won the position of Senate Speaker, after garnering 46 votes out of a possible 66 votes. This was after his main rival Kalonzo Musyoka had walked away from the Race.
Equally, in the National Assembly, President Ruto’s choice, former Senator of Bungoma County, Moses Wetangula won the position of Speaker in the National Assembly after defeating Kenneth Marende who was his main rival and was endorsed by the opposition.[46]
This information above depicts how if President Uhuru managed to veto nineteen bills, then it would only follow suit that his successor will equal the number or even supersede it. Since it would be impossible to garner the two-thirds majority required to enact the said bill without presidential assent, whatever recommendations will be given by the President will become law. This gives the President an ‘unheralded legislative role’ as Walter Khobe puts it.[47]
Khobe proposed a solution to this problem. That Kenya should apply what is used in Botswana whereby the majority required to override the presidential veto is just a simple majority, a fifty-plus-one majority.[48] I then pose the question of whether this would be possible if the President controls more than half of both Houses.
Since the promulgation of the Constitution of Kenya 2010, no Parliament has been able to garner the two-thirds majority required to override a veto. This will only get worse considering the current President controls the Speakers of both Houses and has the majority numbers in the houses. This is giving him control of two arms of government. Giving him a legislative role yet he is a member of the executive. This goes against the doctrine of separation of powers that was initiated by Baron de Montesquieu in his book sprit des Lois as recorded by Ambani and Mbondenyi. [49] Doesn’t this make the President as Walter Khobe puts it, ‘Lawmaker-in-chief’?[50]
In the last section, I will attempt to provide a solution to remedy this problem that threatens the very essence of the constitutionalism of our constitution and question whether it is transformative.
- The solution
As I have previously mentioned, the remedy of applying what is used in Botswana that has been suggested by Walter Khobe will prove futile to curb this issue. A simple majority is still not enough to stop the wants of one person governing the whole country. The question then is, what is suitable, and what can we implement to remedy this problem?
The first thought would be to target political parties and stop the for they are the reason this is happening. However, through political parties, people exercise their democratic and political right to vote.[51] There cannot be limitations to the will of the people for they are the sovereign after all.[52] Further, they can exercise this sovereignty through the election of representatives to the various state organs.[53] Yet, the root of the problem remains that political parties and the coalitions they make, result in creating an Imperial President which is against the whole purpose of the Constitution of Kenya 2010.
The best way to tackle a problem is to go for the root cause of the problem. The cause of this problem is political parties. They have formed factions for their betterment and no side is exempted. They have gone against the guidelines of political parties stipulated in the constitution.[54] They completely disregard the minority and further their selfish agenda. There ought to be put in place regulations to govern political parties that would prevent such a predicament. There is no way the word of one man becomes law, does this not take back to the dictatorial epoch under the Repealed Constitution?
Further, the legislators themselves ought to realize the power they have. The power they have is bestowed by the sovereign, who is the people.[55] There have been cases of members of parliament and members of county assemblies belittling themselves to the point of taking bribes to further the wants of the executive. As students in a university should realise their power and the voice they have, as is explained by Mutunga in his journey in radical education,[56] so should legislators realise their power and fully utilise it to promote the doctrine of separation of powers and be a watchdog over the executive. They ought to deny them the chance of bullying them as they do.
Lastly, my final recommendation would be the introduction of a separate and independent body tasked with questioning the recommendations made by the president. This is in some way mirroring the form of veto that was used in New York as is shown by Watson.[57] This body will be independent and not be interfered with by any arm of the government. The introduction of such a body will ensure that the legislature is still being checked by the executive through the president and also prevent the president from promoting his or her agenda. This will fully remedy this dilemma.
Conclusion
The dilemma of the presidential veto should be rectified lest we go back to the past and that will be failing to learn from our history. As Walter Khobe puts it, ‘it promotes undemocratic tendencies of government which were historically present in pre-2010 Kenya’.[58] The persistence of this phenomenon questions the validity of the statement that the Constitution of Kenya 2010 is transformative.[59] This defeats the whole point of the promulgation of the new constitution, taking us back to the gruesome years of ere.
The is Elvis Mogesa Ongiri, a first-year second-semester law student at Kabarak University, Nakuru. His areas of interest include and are not limited to constitutional law, transformative constitutionalism, human rights law, mental health law, law and feminism and law and linguistics.
[1] HWO Okoth-Ogendo, ‘Constitutions without constitutionalism: Reflections on an African political paradox’ in Issa Shivji (ed) State and Constitutionalism: An African Debate on Democracy (American Council of Learned Societies 1988) 6.
[2] Jill Cottrell, Yash Pal Ghai, ‘Constitution making and democratization in Kenya (2000–2005)’ 14 Democratization, 1, 7.
[3] John Osogo Ambani and Humphrey Sipalla (eds) ‘Furthering constitutions, birthing peace’ liber amicorum Yash Pal Ghai (2021) 6
[4] John Osogo Ambani, MK Mbondenyi and Morris Kiwinda, The New Constitutional Law of Kenya (LawAfrica Publishing 2014) 47
[5] Ambani and others, The New Constitutional Law of Kenya, 19
[6] Willy Mutunga, ‘Transformative Constitutions and Constitutionalism: A New Theory and School of Jurisprudence from the Global South?’ The Transnational Human Rights Review Vol 8 (2021), 33
[7] Constitution of Kenya, Article 115
[8] Constitution of Kenya, Article 115(2)
[9] Black’s Law Dictionary, 11th edition
[10] Richard Watson, ‘Origins and Early Development of the Veto Power,’ Presidential Studies Quarterly (vol. 17 no. 2 1987) 401
[11] Watson, ‘Origins and Early Development of the Veto Power,’ 402
[12] Watson, ‘Origins and Early Development of the Veto Power,’403
[13] Watson, ‘Origins and Early Development of the Veto Power,’406
[14] Watson, ‘Origins and Early Development of the Veto Power, 407
[15] Alexander Hamilton, ‘Federalist Paper No. 73’ in Clinton Rossiter (ed) The Federalist Papers (New American Library New York 196) 246
[16] Alexander Hamilton, Federalist Paper No. 73, 247
[17] Constitution of the United States 1788, s 1(27)
[18] Karl Klare ‘Legal culture and transformative constitutionalism’ South African Journal on Human Rights (14 1998), 150.
[19] Constitution of Kenya 2010, Art. 115(2) (a)
[20] Constitution of South Africa 1996, s 79(1)
[21] Constitution of Kenya, Article 115 (1)(b)
[22] Constitution of Kenya, Article 115(4)
[23] Constitution of Kenya 2010 article 115(1) (b)
[24] Walter Khobe Ochieng’, ‘Presidential Veto in the Law-Making Process: The Case of Kenya’s Amendatory Recommendations’ (Journal of African Law 2022) 10
[25]Ochieng’, Presidential Veto in the Law-Making Process: The Case of Kenya’s Amendatory Recommendations, 10
[26] Ochieng’, Presidential Veto in the Law-Making Process: The Case of Kenya’s Amendatory Recommendations, 10
[27] National Assembly Official Report (Hansard), Referral of Bills by the President, 9 June 2015 at 1–2
[28] Coalition for Reforms and Democracy
[29] Coalition for Reforms and Democracy (CORD) v Attorney General; International Institute for Legislative Affairs & another (Interested Parties), [2019] eKLR
[30] Constitution of Kenya article 260
[31] Mutunga, Transformative Constitutions and Constitutionalism: A New Theory and School of Jurisprudence from the Global South?, 50-52
[32] Constitution of Kenya article 259
[33] Ochieng’, Presidential Veto in the Law-Making Process: The Case of Kenya’s Amendatory Recommendations, 8
[34] National Assembly Official Report (Hansard), Speaker’s Communication: Consideration and Scope of Presidential Reservations, 28 July 2015, 8–9 in Ochieng’, Presidential Veto in the Law-Making Process: The Case of Kenya’s Amendatory Recommendations, 8
[35] Kenya Media Council Act 2013
[36] Kenya Information and Communications (Amendment) Act 2013
[37] Nation Media Group Limited & 6 others v Attorney General & 9 others (2016) eKLR, para 136
[38] Nation Media Group Limited & 6 others v Attorney General & 9 others (2016) eKLR, para 119
[39] Pevans East Africa Limited & another v Chairman Betting Control and Licensing Board & 7 others, [2017] eKLR
[40] Pevans East Africa Limited & another v Chairman Betting Control and Licensing Board & 7 others [2017] eKLR, para 101
[41] Apollo Mboya v Attorney General & 2 others [2018] eKLR; Transparency International (TI Kenya) v Attorney General & 2 others, [2018] eKLR
[42] Mercy Mwai and Antony Mwangi, ‘MPs now protest incessant memorandums’, People’s Daily (7 November 2019)
[43] Oliver Mathenge, ‘Numbers game for Ruto and Raila as MPs elect new Speakers’, Daily Nation (8 September 2022)
[44] Kenya Gazette, CXXIV (181), 17 September 2022, 10537
[45] Oliver Mathenge, ‘Numbers game for Ruto and Raila as MPs elect new Speakers’, Daily Nation (8 September 2022)
[46] Victor Abuso, ‘Kenya: Ruto’s coalition wins’ control of National Assembly and Senate’, the Africa report (9 September 2022 15:27)
[47] Ochieng’, Presidential Veto in the Law-Making Process: The Case of Kenya’s Amendatory Recommendations, 3
[48] Ochieng’, Presidential Veto in the Law-Making Process: The Case of Kenya’s Amendatory Recommendations, 2
[49] John Osogo Ambani and others, The New Constitutional Law of Kenya, 60
[50] Ochieng’, Presidential Veto in the Law-Making Process: The Case of Kenya’s Amendatory Recommendations, 13
[51] Constitution of Kenya, Article 38
[52] Constitution of Kenya, Article 1
[53] Constitution of Kenya, Article 1(3)
[54] Constitution of Kenya, Article 91
[55] Constitution of Kenya, Article 1(2)
[56] Willy Mutunga, ‘In Search and Defence of Radical Legal Education: A Personal Footnote’, Kabarak Law School Occasional Paper Series 1(1) (2022)11-26
[57] Watson, ‘Origins and Early Development of the Veto Power,’406
[58] Ochieng’, Presidential Veto in the Law-Making Process: The Case of Kenya’s Amendatory Recommendations, 18
[59] Mutunga, Transformative Constitutions and Constitutionalism: A New Theory and School of Jurisprudence from the Global South?, 33