The President as the third chamber of Parliament: An analysis of the power to

assent to Bills in the Constitution of Kenya.

By Joshua Kembero Ogega
Introduction
It is trite in the study of constitutional law that separation of powers is one of the
basic pillars of modern constitutions. The most famous exposition of the doctrine of
separation of powers was propounded by Baron de Montesquieu; he wrote:
In every government there are three sorts of power: the legislative; the executive in respect to
things dependent on the law of nations; and the executive in regard to matters that depend on
1
the civil law...

Montesquieu went on to expound on why there needs to be this separation of

powers. He stated that there can be no liberty where the legislative and executive
powers of government are lodged in the same person. This would lead to oppressive
laws. He further argued that if the judiciary were to be one with the executive and the
legislature, the judiciary would be exposed to arbitrary control and a judges conduct
would be replete with oppression and violence. He summed up the whole argument
by stating that there would be an end in everything if the doctrine of separation of
powers was non-existent. 2
James Madison expounded on this doctrine in Federalist Paper No. 51. He stated
that the only protection against the concentration of power on one department of
government is through having constitutional means that prevent one department
from encroaching on another. 3 He acknowledged that in any system that embraces
separation of powers, the legislature would always overshadow the other arms of
government. As such, there ought to be two chambers of parliament with one of the
roles of the more powerful chamber of parliament being checking the powers of the
less powerful one. 4

CS Baron de Montesquieu Spirit of Laws(1746) Chapter 6 of Book XI

R Parker The Historic Basis of Administrative Law: Separation of Powers and, Judicial Supremacy
(1957-1958) 12 Rutgers Law Review 458.
3
J Madison Federalist Paper No. 51 (1788) in MC Smith Rendering to God and Caesar: Critical
Readings for American Government (2014) 66.
4
Madison (n 3 above) 66.
2

Under the Constitution of Kenya (2010), bicameralism has been reintroduced. 5

Article 93 of the Constitution provides for the establishment of the Parliament of
Kenya consisting of the National Assembly and the Senate. These two houses of
Parliament have their powers and roles cut out. The roles of the National Assembly
and the Senate are provided for in article 95 and 96 of the Constitution respectively.
Article 115 of the Constitution on the other hand provides for the role of the President
in the legislative process. It provides that within 14 days after the receipt of a Bill
passed by Parliament, the president has a number of choices to make before finally
assenting to a Bill and forwarding it to the Government Printer for publication. The
President can assent to the Bill 6 or he can refer the Bill back to Parliament for
reconsideration by Parliament if he or she has any reservations concerning the Bill. 7
The Constitution goes further and provides that if the House of Parliament where the
Bill is referred back to does not take into consideration the reasons for the referral by
the President, it shall refer the Bill back to the President. 8 If the President refuses to
sign that Bill, the Bill shall automatically become law after the expiry of 7 days. 9
These new developments raise a number of questions. What is the role of the
president in the legislative process? Is the requirement that a presidential veto on a
Bill can only be overridden by a two-thirds majority vote constitutional? Is the
Presidents power only limited to assenting to Bills passed by Parliament or can he
or she check on the powers of Parliament in ascertaining if a Bill passed by
Parliament is proper law? Does this usurp the power of courts to rule on the validity
of laws passed by Parliament? Is the provision in article 115(1) (b) against the
doctrine of separation of powers since the President doubles up a lawmaker? These
are the questions that this paper seeks to examine and analyse. The conclusion will
seek to affirm the claim made in the title of this paper.
The presidents role in the law making process is provided for in article 115 of the
Constitution. The presidents role included the power to assent to Bills that have
5

Between 1963 and 1965, the Kenyan Parliament had two chambers which were abolished by way of
Constitutional (Amendment) Act No. 14 of 1965 that abolished regional governments and merged the
two chambers of Parliament into a single chamber. HWO Okoth-Ogendo The Politics of
Constitutional Change in Kenya since Independence, 1963-69 (1972) 71 African Affairs 21.
6
Constitution of Kenya (2010) 155 (1)(a).
7
Constitution of Kenya (2010) 115 (1)(b).
8
Constitution of Kenya (2010) 115 (2),(3), (4) & (5).
9
Constitution of Kenya (2010) 115 (6).

been passed by Parliament and forwarded for assent. It largely borrows from the
British tradition of what is now called royal assent. 10 This was inherited in most of
Britains former colonies Kenya included. In Great Britain and its commonwealth
realms such as Canada, Australia, Jamaica and New Zealand, the British monarch is
still regarded as the sovereign and the power to assent to a Bill is granted to the
monarchs representative. 11
The Kenyan model borrows from the Westminster model but the sovereign in this is
the president but whom, in this case, has powers to veto a Bill that is presented
before him or her. This is the case in both the repealed Constitution 12 as well as the
Constitution of Kenya, 2010. 13 Under the Independence Constitution, there was no
express veto but the president. The president was required to either assent or
withhold assent to a Bill presented to him or her by Parliament. 14 Where the Bill had
been passed by both Houses of Parliament and an agreement had been at as to any
amendments made on it, the president was required to assent it and cause it to be
published in the Kenya Gazette. 15
This was later amended to include giving the President the authority to refuse to
assent to a Bill and submit a memorandum to the Speaker of Parliament indicating
the provisions in a Bill that should be reconsidered including his recommendations
for amendments. 16 This provision was transplanted into the Constitution of Kenya
(2010) albeit in different phrases but with the same meaning that is, refer the Bill
back to Parliament for reconsideration by Parliament, noting any reservations that
the President has concerning the Bill.
This practice borrows heavily from the American presidential veto on Bills that have
been ratified by the Congress. This is provided for in section 7 of Article 1 of the
American Constitution. 17 The justification for this veto as given by James Madison
during the American Constitutional Convention was that it was useful to the Judiciary
in the sense that it would give its protections from encroachments by the Legislature
10

Bennion F Modern royal assent procedure at Westminster (1981) Statute Law Review 137.
Statute of Westminster (1931).
12
Constitution of Kenya (repealed) Sec 46.
13
Constitution of Kenya (2010) Art 115.
14
Constitution of Kenya (1963) sec 59(4).
15
Constitution of Kenya (1963) sec 59 (5).
16
Constitution of Kenya (repealed) sec 46(4).
17
Constitution of the United States of America Art 1(7).
11

and that it would give the Executive additional confidence and firmness in exerting
revisionary power. 18 Elbridge Gerry, delegate from Massachusetts in the Convention,
opposed this proposition and stated that it offended the doctrine of separation of
powers. 19
As was argued by Gerry, the presidential veto as proposed by Madison and was
enacted offends the doctrine of separation of power. It is this approach that was
borrowed in the Constitution of Kenya (2010) and was the position of the repealed
Constitution which slightly modified the provisions on the power to assent to a Bill as
was provided for in the Independence Constitution. To answer the questions raised
above, the following section discusses why the presidential veto is an affront to the
doctrine of separation of powers.
The Presidential veto and separation of powers
The doctrine of separation of powers grants unto each of the arms of government
distinct powers and responsibilities. The power to make laws is given to the
Legislature. The laws made by the Legislature are executed by the Executive arm of
the government whereas the Judicial arm of the government settles disputes that
may arise relating the applicability or interpretation of the laws in contention.
However, based on the first impression, the veto gives the president the power that
encroaches on the role of the Judiciary and the Legislature.
One of the arguments used to support the American model of the presidential veto is
that separation of powers doctrine endows each of the different arms of government
the powers to exercise checks and balances on each other. However, this proves
deleterious on the concept of separation of powers itself as the president appears to
wield more power than the rest of the organs. This is seen for instance on the
Executives power to offer amnesty which means that he or she can override the
decisions made by a court of law. At the same time, the veto on Bills makes it
possible for the President to interpret the law and make a determination on its
viability/constitutionality before sending it back to Parliament for a review. This
denies the Judiciary the power to do so since this is its constitutional mandate.
18

Revisionary Power of the Executive and the Judiciary, [21 July] 1787, Founders Online, National
Archives http://founders.archives.gov/documents/Madison/01-10-02-0067 (accessed 17 September
2015)
19
n 18 above.

Carl McGowan argues that the veto gives the president an explicit role in the making
of laws in the United States. This is despite the fact that the framers of the
Constitutions sought to dispel this fact but which can be affirmed to be the case. He
argues that the intention of the veto as has been used by American presidents was
to ensure that there was no congressional encroachment on a weak Executive.
However, its use over the years has reflected an imperial presidency. 20
On the other, the power of the President to grant amnesty goes against the very
tenets of checks and balances. Under the Constitution of Kenya (2010), this is stated
in article 133 which gives the President the power of mercy which includes remitting
all or part of a punishment. William Duker argues that it is a benign executive gift
that cannot be checked by the other arms of government. As such, this lack of
restriction on the exercise of this power shows a misbalance of power which favours
the Executive. 21
From the brief analysis above, it can be seen that the presidential veto gives the
President uneven powers when compared to the other two arms of government.
These powers do not amount to checks and balances because of the fact that the
Presidents limits in the exercise of his or her power to veto Bills are not expressly
stated in the Constitution. This is because of the fact that the words any reservations
that the President has concerning the Bill extends to basically anything. 22
Therefore, the veto powers as provided for in the Constitution are too wide to amount
to what would generally be regarded as checks and balances on the Legislature.
The fact that the President is given the authority to give his reservations and return
the Bills back to Parliament make the exercise of this power to amount to legislation.
As such, the President implicitly participates in the debates and passage of Bills
through Parliament in total disregard of the doctrine of separation of powers which is
a pillar of the Constitution of Kenya (2010). In addition to that, another question that
needs to be answered is whether or not this usurps the power of the courts to
interpret the law and declare it valid or invalid.

20

C McGowan The President's Veto Power: An Important Instrument of Conflict in Our Constitutional
System (1986) 23 San Diego Law Review 804
21
WF Duker The president's power to pardon: A constitutional history (1976-1977) 18 William &
Mary Law Review 475.
22
Constitution of Kenya (2010) art 115 (1) (b).

The role of the courts

The Courts have a role in the making of laws. This is by checking if the Legislature
exercised its powers constitutionally before a law is passed. Article 165(3) (d) of the
Constitution provides that the High Court has the jurisdiction to hear and determine
any question on any law that is allegedly inconsistent or in contravention of the
Constitution and any question relating to whether or not anything was done or said
under the authority of the Constitution.
This power is exercised through the power of the courts to review the actions of the
Executive and the Judiciary. This is through reviewing administrative actions of the
Executive and through declaration of constitutional invalidity/inconsistency of laws
passed by Parliament. Chief Justice Marshall in the celebrated case of Marbury v
Madison stated it is emphatically the province and duty of the Judicial Department to
say what the law is. Those who apply the rule to particular cases must, of necessity,
expound and interpret that rule. If two laws conflict with each other, the Courts must
decide on the operation of eachthat a law repugnant to the Constitution is void. 23
Therefore, it is the province of the Judiciary to determine whether or not a law is valid
or not and as such fit for operation. The Constitutional Court sitting in Njoya and 6
Others v Attorney-General and another held that:
while the courts cannot usurp the legislative mandate of Parliament to make, amend or
repeal statutory law, they have the power to adjudicate on any alleged inconsistency of any
Act of Parliament or any provision thereof with the Constitution of Kenya. The Doctrine of
Separation of Power does not take away the courts power to declare when the Constitution
has been violated by any legislation or section thereof.

24

Therefore, the exercise of the presidential veto goes against these principles. The
president does not have the authority to declare the validity or invalidity of a law that
is passed by Parliament. As such, the veto as stated in article 115 gives him or her
power to interpret the law which technically usurps the power of the court to rule on
its validity or invalidity. The fact that the wording in article 115 states that the
president can exercise the veto if there are any reservations makes it impossible for
the court to play its role especially if the President makes any reservations and
explains that the passed Bill was unconstitutional or invalid. This leads to the next
23
24

Marbury v. Madison 5 U.S. 137 (1803) at 177, 180.

(2008) 2 KLR 624 (EP) at 626.

issue which relates to the constitutionality of the fact that the veto can only be
overridden by a two-thirds majority vote by the concerned House of Parliament.
Is the requirement of a two-thirds majority vote constitutional?
One of the basic tenets of a constitutional democracy is the adherence to democratic
principles as opposed to autocratic principles. Article 10 of the Constitution provides
for national values and principles of governance required when one is exercising
power under the Constitution. These principles include the rule of law, democracy
and participation of the people. 25 Anyone enacting a law is under an obligation to
observe these principles. 26
However, the two-thirds majority rule as provided for in the Constitution fails to
adhere to democratic principles. The traditional essence of the two-thirds majority,
also known as supermajority, is to ensure that durable laws are made by Parliament
or a constitutional provision is not changed at the whims and wishes of those in
power. 27 This is the reason why article 256 and article 255 of the Constitution
provide for a supermajority in the parliamentary-led constitutional amendment or a
constitutional amendment referendum processes respectively before certain
provisions can amended. 28
This is also seen article 111 where the National Assembly is given authority to veto a
decision made by the Senate by the requirement of a supermajority. The
supermajority is premised on making the veto meaningful. This is by ensuring that a
piece of legislation that passes through the Senate is not dismissed on meaningless
grounds. According to John McGinnis and Michael Rappaport, by limiting the veto to
a two-thirds majority votes, members of the National Assembly are encouraged to
engage in a more informed discussion on the merits of the Bill and persuade or
dissuade fellow legislators on its merits or demerits respectively. 29
However, the supermajority rule plays a different role in the presidents veto. It puts
the interests of the Executive at a pedestal and disregards the disparate interests
25

Constitution of Kenya (2010) Art 10(2)(a).

Constitution of Kenya (2010) Art 10(1)(b).
27
N Goldberg Supermajority rule: good or bad? Los Angeles Times 22 March 2009
http://articles.latimes.com/2009/mar/22/opinion/oe-goldberg22 (accessed 17 September 2015)
28
Constitution of Kenya (2010) arts 255 &256.
29
JO McGinnis & MB Rappaport The constitutionality of legislative supermajority requirements: A
defense (1995) 105 The Yale Law Journal 497.
26

represented in the Legislature. It must be borne in mind that a decision to pass a

piece of legislation by any House of Parliament is not arbitrary but is informed by a
democratic process where members vote. To subject this democratic process to a
non-democratic veto violates the very foundations of a constitutional democracy and
breeds a totalitarian Executive. This is because it is difficult to attain a supermajority
and an exercise of the veto renders the concerned House of Parliament subject to
the wishes of the President.
This arbitrary exercise of power can be seen in the recent rejection of the Deputy
President (Designated State officers) Bill 2015 by President Uhuru Kenyatta. He
stated that the Opposition leaders, Raila Odinga and Kalonzo, must quit politics
before they could get pension payments despite the Bill being passed by the
National Assembly through a democratic process. However, considering that the Bill
concerned persons associated with the Opposition and given its fewer numbers in
the National Assembly, it was impossible to gather the required numbers. 30
Therefore, this affirms the assertion above that the veto is unconstitutional for
violating.
Conclusion
From the discussion above, it can be inferred that the veto as exercised by the
President when assenting to Bills in an affront to the principle of separation of
powers. It does not serve as a means of checks and balances but only breeds an
imperial presidency. It makes the President the lawmaker and the law interpreter at
the same time. This encroaches on the Judiciary and the Legislature. Traditionally,
the supermajority vote serves a means of checking the lower House of Parliament by
the upper one such as the Senate.
The Kenyan Constitution takes a peculiar approach. The fact that the veto can only
be overridden by a supermajority of two-thirds of the House of Parliament concerned
makes the presidency the third House of Parliament. This is because his or her
decisions are subjected to a veto that is traditionally a preserve of one of the
chambers of a multi-house parliament. Additionally, the fact that the President can
30

E Mutai Cord vows court fight after Raila, Kalonzo pension was rejected Business Daily 18 May
http://www.businessdailyafrica.com/Cord-vows-court-fight-after-Raila-Kalonzo/2015
/539546/2721630/-/lt7ei9/-/index.html (accessed 17 September 2015)

express his or her reservations on the Bill puts him or her into the arena of law
making. The practice is akin to the President participating in the debates that came
up with the Bill. As such, he waddles into the mud that is parliamentary debates. As
such, he or she becomes the third chamber of Parliament.
The practice defeats the essence of the Kenya as a constitutional democracy
because

it

breeds

an

autocratic

presidency

thus

making

the

practice

unconstitutional. This is true especially through the requirement that the presidential
veto can only be overridden by a supermajority vote.