, The dispute provoked by Prime Minister Raila Odinga’s decision to suspend William Ruto and Prof Sam Ongeri as Agriculture and Education Ministers respectively goes beyond the question of whether or not he consulted President Kibaki prior to making his astonishing announcement . The real issue is whether Cabinet ministers can be suspended from office either under the Constitution or the much misunderstood and misinterpreted National Accord and Reconciliation Act, 2008.
Prior to the enactment of the National Accord Act in the aftermath of the post-election violence the appointment and dismissal of Cabinet Ministers and the Assistants was governed by Sections 16 and 19 of the Constitution respectively which allowed the President to remove them by directing so. When the National Accord happened on our shores this position was marginally altered through a new Section 15A(3) to provide, inter-alia, that Parliament may, by an Act of Parliament, provide for the appointment and termination of office of the Prime Minister, Deputy Prime Ministers and Ministers. The said Section 15A also makes provision for establishment of a coalition Government through an Act of Parliament.
Now, on one hand Section 3 of the National Accord Act provides for the procedure of appointment of the Prime Minister and his two deputies by the President. On the other hand Section 4(2) provides the persons to be appointed as Ministers and Assistant Ministers from coalition partners other than from the President’s party shall be nominated by the parliamentary leader of the party in the coalition. In the context of the formation of the Coalition government Section 4 of the Act simply meant that Mr Odinga, as the parliamentary leader of ODM and its associates, was to nominate half of theCabinet ministers given the relative equality between ODM and PNU in terms of parliamentary strength.
It is important to note that in the grand coalition era there are three significant changes in the appointment and dismissal of ministers. The first one relates to the statutory qualification under Section 3 of the Act as to the elected MPs who may be appointed Prime Minister and Deputy Prime Ministers. The second one relates to how the offices of the Prime Minister and his two deputies may fall vacant. The third change relates to the removal of Ministers nominated for appointment by parliamentary leader of ODM in that the President must consult with and obtain concurrence in writing of the leader of ODM.
At this stage it is worthy to note that the legal changes to establish the grand coalition government created, in effect, three positions for Mr Odinga. First under Section 15A(4) of the Constitution the legal status of Mr Odinga is a Minister of the Government of Kenya albeit the first among equals thus his designation as Prime Minister in Section 15A(1) of the Constitution. Secondly under Sections 3(1) and 4(1) of the National Accord Act Mr Odinga is the Prime Minister whose functions is to co-ordinate and supervise the execution of the functions and affairs of the Government, including those of Ministries. (Note the word used is Ministries rather than Ministers). Thirdly under Section 4(2) of the said Act Mr Odinga is the parliamentary leader of ODM and it is in that capacity that he nominated half of the Cabinet and is expected to be consulted and concur in writing on their removal by the President.
By now the keen reader must have noticed the inconvenient truth that lawyers such as Miguna Miguna have been trying to mask or muddle with litres of ink over the last two years namely that the so-called constitutional powers of the Prime Minister are nothing but legal fiction. The unadulterated truth is that the Prime Minister is vested with statutory powers to co-ordinate and supervise the execution of the functions and affairs of the Government. I readily concede the fact this revelation begs several questions in view of Section 15A(5) which provides that the National Accord Act shall be read as part of the Constitution.
However, there are three quick rejoinders to the envisaged counter-argument. First, the words that an Act of Parliament “shall be read as part of this Constitution” does not make a given statute a part of the Constitution or confer its provisions the same status as constitutional provisions but simply requires that the same be read jointly with the Constitution in order to give its full meaning and effect. Secondly, in anticipation of the National Accord Act Section 3 of the Constitution was amended to give it constitutional immunity from challenge in court on the grounds of inconsistency with the Constitution. The reason for this immunity is that the Act would easily be struck out in court because its provisions are actually inconsistent with it and this is precisely why controversies continue to dog the existence of the coalition government. Thirdly, the Act was actually passed using simple majority voting rules and can be repealed in the same way just like other statutes.
Viewed this way the question as to whether the Prime Minister can lawfully suspend ministers is easy to answer. First as Prime Minister, Mr Odinga has no such power because according to Section 51 of the Interpretation and General Provisions Act Cap 2, the powers to suspend arises from the power of appointment. Section 51 provides as follows:-
51. (1) Where by or under a written law a power or duty is conferred or imposed upon a person to make an appointment or to constitute or establish a board, commission, committee or similar body, the, unless a contrary intention appears, the person having that power or duty shall also have the power to remove, suspend, dismiss or revoke the appointment of, and to reappoint or reinstate, a person appointed in the exercise of the power or duty, or to revoke the appointment, constitution or establishment of, or dissolve a board, commission, committee or similar body appointed, constituted or established, in exercise or the power or duty, and to reappoint, reconstitute or re-establish it.
(2) Where the power or duty of a person under this section is exercisable only upon the recommendation, or is subject to the approval or consent, or another person, then the power shall, unless a contrary intention appears, be exercisable only upon that recommendation or subject to that approval or consent
Secondly, as the parliamentary leader of ODM Mr Odinga cannot dismiss or remove Ministers – including those from ODM – because Section 4(5) of the Act recognises that the removal of Ministers shall be by the President except that he must be consulted and consent when it comes to ODM Ministers. Even after the enactment of the Act, the appointment and removal of Ministers remains the constitutional function of the President subject to the statutory limitations mentioned above.
Finally it is doubtful whether the President himself with or without the consultation with or consent of Mr Odinga can suspend ministers. At the technical level so long as appointment and dismissal of ministers is governed by the Constitution, Section 51 of the Interpretation Act (Cap 2) do not apply and so the fact that the President’s appoints and dismisses Ministers does not give him the power to suspend them. The said Act (Cap 2) does not apply to the Constitution because, unlike the National Accord Act and other statutes, the Constitution is not considered a statute.
Secondly, there is not such thing as disciplining of ministers which would entail powers of suspension. In the nature of their functions Ministers are either in office or out – there is no middle ground. In corporate terms Ministers as members of Cabinet are like directors of a company. They can be appointed to and removed from office – they cannot be suspended as they are not employees. There are good reasons why this is so. Since suspension creates no vacancy in the Cabinet there would be a constitutional vacuum if the chief executive could exercise such powers because one man rule could easily be created through suspension of ministers. In short, as integral components of government, Cabinet ministers are never suspended – they are removed and replaced to ensure smooth government.
Thirdly, the Constitution does not expressly authorise the President with or without the consultations with or no consent of the Prime Minister to suspend ministers. If the Constitution does not provide for the exercise of any power that does not mean that the ambitious can claim or usurp such powers. In democracies the law enumerates all the powers of the governors – unenumerated powers vests in the people and is not exercisable by whoever claims such powers.
Finally so long as the constitutional status of Mr Odinga is that of Minister of the Government, law, reason and common sense dictate that he has no power to suspend, let alone remove, fellow ministers. It is really this simple when you think about it without blinkers!
(KIBE MUNGAI is a Nairobi lawyer)