The Blame game An analysis of the application of the principle of ministerial responsibility in Kenya
Olimba, Allan Dylan Ayub
Ministerial responsibility is a constitutional principle applied primarily in the Westminster parliamentary system. The principle empowers Parliament to hold ministers accountable for the conduct of their ministries and government as a whole. It revolves around the concept of ensuring that the Executive, ministers in particular, bear responsibility for the decisions they make and for the failures of their ministries. However, modern conceptions of the principle attach a significant amount of responsibility to the subordinates of ministers for the actions they take in the fulfilment of their mandate. This study sought to find answers as to how the principle of ministerial responsibility is applied in a democratic society, what hinders the Kenyan National Assembly from holding Cabinet Secretaries to account for substandard performance of their duties and how the principle of ministerial responsibility would improve governance in Kenya. Desktop research was the primary means by which answers to the above questions was sought. By researching on how ministerial responsibility has evolved and is applied in modern day Australia, it becomes evident that it is a subtle but crucial aspect of the accountability mechanism applied to their ministers. Regardless of the fact that it originated from British convention and there is not any legislation that establishes it in the Australian legal system, it is a key feature of the relationship between the Cabinet and Parliament. An analysis of the legal regime governing the relationship between the National Assembly and the Cabinet in Kenya exposes the absence of an accountability relationship similar to that witnessed in Australia. Cabinet Secretaries in Kenya are only accountable to the National Assembly for a limited number of matters. Crucially, the National Assembly cannot hold Cabinet Secretaries accountable for substandard performance of their duties. Only the President has that power which raises questions on the potential existence of a conflict of interests in the relationship between the President and the Cabinet Secretaries. Curiously enough, ministerial responsibility applies to members of the Public Service who rank below Cabinet Secretaries in Kenya. This creates a hierarchical absurdity that sees the subordinates of the chief executive officer of a ministry being held to a higher standard of performance than the chief executive officers themselves. The research findings indicate that this glaring deficiency of authority borne by the National Assembly is not due to an oversight by the drafters of the Constitution. The law appears to have intentionally been molded to bar the Legislature and its committees from assessing the performance of Cabinet Secretaries. This study concludes by recommending an amendment to the Constitution that would see the National Assembly obtain the legal standing to assess the conduct of Cabinet Secretaries in their official capacity in a bid to promote a higher degree of accountability in Government.
Submitted in partial fulfillment of the requirements of the Bachelor of Laws Degree, Strathmore University Law School.