Legislative Control of Executive Power in Africa: New Insights

Constitutional lawyers see m to have left to political science the question: What is so re­ pugnant about power itself, as to justify unending restraint efforts? We should briefly re­ vert to this issue, as a basis for an argument to be formulated from the African perspecti­ ve of power, and of its control through adopted Western concepts of parliamentarism . Preston King typifies political power as Hthe ultimate self-conscious focus of the com­ munity's coherence« . l It follows that this power exists as a fait accompli and has a vital role in the community. Wh ether it must be controlled depends on whether it has a mis­ chief potentia1 . 2 King observes that political leaders, in the exercise of power, will con­ ceive and pursue particular objects, following which they will invite conformity with po­ licy decisions already taken . HConformity . . . is sometimes reached by threat of force, . . . promises of reward; somethimes by lies, sometimes by frank avowal of truth . . . « 3 As Cruise O'Brien remarks, Hthe person who is applying power, even in the very mild and weil accepted form . . . is at least in danger of arrogance and other forms of distor­ tion« .4 This consideration, wh ich appears to be the basis of the constitutional lawyer's concern, is amply validated by the actuality of arrogance and derournement de pouvoir that must become manifest from this article, which attempts to derive fresh insights5 from a Judi­ cial Commission of Inquiry Report recently published in Nairobi, Kenya.6

Legislative Control of Executive Power in Africa: New Insights By J. B. Ojwang

I. Introduction
Constitutional lawyers seem to have left to political science the question: What is so repugnant about power itself, as to justify unending restraint efforts?We should briefly revert to this issue, as a basis for an argument to be formulated from the African perspective of power, and of its control through adopted Western concepts of parliamentarism.Preston King typifies political power as »the ultimate self-conscious focus of the community's coherence«.1 It follows that this power exists as a fait accompli and has a vital role in the community.Whether it must be controlled depends on whether it has a mischief potential.2King observes that political leaders, in the exercise of power, will conceive and pursue particular objects, following which they will invite conformity with policy decisions already taken.»Conformity ... is sometimes reached by threat of force, . . .promises of reward; somethimes by lies, sometimes by frank avowal of truth . ..«3As Cruise O'Brien remarks, »the person who is applying power, even in the very mild and well accepted form ... is at least in danger of arrogance and other forms of distortion«.4This consideration, which appears to be the basis of the constitutional lawyer's concern, is amply validated by the actuality of arrogance and détournement de pouvoir that must become manifest from this article, which attempts to derive fresh insights5 from a Judicial Commission of Inquiry Report recently published in Nairobi, Kenya.6 1 P. King, Fear of Power (London: Frank Cass, 1967), p. ix. 2 As to this, Montesquieu had no doubts.He said in De l'esprit des lois (J.P. Mayer  II.The existing Relationship between the legislature and the Executive I have elsewhere7 considered the parliamentary experience in a »New Commonwealth« and in a francophone African country, attempting to identify certain peculiar features of executive power there; and the information thus gained may be taken as a point d'appui from which we may now set out in more affirmatory terms the present state of parliamentary control of government.8Many African countries set off at independence as if they earnestly believed in the virtues of the Western parliamentary system.Hence the provision for such classical parliamentary devices as multi-party systems, the vote of censure, etc.But it soon became clear that a certain political profile, quite the antithesis of the setting at independence, was beginning to emerge.The kind of political stability Africa had opted for, it was becoming evident, did reckon without the role of a plurality of parties; it was a conception of stability built on a fixed foundation, consisting in a President at the helm of a single partywhat has aptly been typified as »[un pays] fortement organisé et uni autour d'un chef«.9Practice shows that there were two alternatives to that position: the suppression of civi-> lian rule and its substitution with military dictatorship; or the maintenance of a nominal multi-party system that would serve no more than a public relations function.10Assuming that practice could take one of the three positions (rather than some theoretical further alternative), it is arguable that it is the first that merits recognition as the model of »rational« post-independence African tradition: not any of the other two, the one of which implies acceptance of undisguised dictatorship, even as the other entails obvious want of political candour.But the »rational« position is itself fraught with the danger of abuse of power.Unlike Western countries, where the plenitude of executive powers has undisputed legal authority only in situations of national emergency or other specified types of crisis,11 the powers 7 Op.cit.supra n. 5. 8 It is admitted that this perspective cannot hope to be perfectly representative as it would not accurately describe the position in countries where military rule prevails (e. g.Nigeria, Ghana, Bourkina Fasso, Central African Republic, Liberia, etc.), nor in distinctly revolutionary situations (as in Mozambique or Ethiopia), nor in such countries as South Africa, Libya, etc.countries with certain distinct local peculiarities.9 Journal Officiel de la République de Côte d'Ivoire -Débats de L'Assemblée Nationale.September 12, 1966, p. 5 [»Discours du Président élu«].10 Military regimes abound in Africa (n. 8, supra).As to the alternative of the public-relations plurality of parties, Botswana, Gambia, Senegal and Uganda are notable.In Botswana, the popular example of multiparty democracy, the role of opposition groupings in the constitutional order is strikingly marginal.Seven years ago the late President Khama, in an important parliamentary speech, was reported to have »accused the official Opposition ... of indulging in disruptive left-wing politics«; »he described the Opposition as social malcontents who had contributed nothing to the national welfare but who wanted power at all costs« (emphasis added): Africa Reserach Bulletin : Political, Social and Cultural Series.Vol.The basic reason usually advanced for this concentration is that it is an essential basis for national developmenta factor though to be largely absent in Western countries, thus making for a differing political arrangement from that known in the West.»National Development« in this respect normally refers, first, to the process of creating political harmony and of developing a national consciousness; and, secondly, to the efforts to enhance the country's economic activities and improve access to goods and services, in the interest of the citizens.It is thought the constitutional organ in whose domain such major intiatives fall, the executive, ought to have a broad-enough competence for the taking of policy decisions and for implementation of policy.(There are, of course, other justifications, for instance, traditional styles of government which gave broad competence, and sometimes unfettered powers to the leader).14Now in spite of the obvious potential for abuse of powers in their very nature so nebulous, no effective constitutional arrangements exist for their restraint.It has been shown15 that traditional control devices such as judiciaries (of the British type), tribunaux administratifs (of the French type), public inquiries, Ombudsmen, etc. are either few and far between, or, even where they exist, are purely symbolic and unequal to the task of bringing under check excessive of executive power.Such formless and ubiquitous powers hardly lend themselves to effective control by procedure-oriented institutions.The legislature alone, of all the power-control devices available, could conceivably offer an appreciable prospect of restraint.It is now known, however, that what measure of control the legislature could bring to bear, is entirely outside the traditional Western scheme of parliamentary gouvernment.It appears correct to say that the quintessence of the Western scheme consists in the multi-party system, a sociological fact, which sprouts into the [constitutional-legal] parliamentary chamber (thanks to parliamentary elections by-and-large contested on the basis of party sponsorship which is itself governed by a commitment to party »ideology«), and there constitutes the recognised basis of choice in, and orientation of, parliament's constitutional functions (including the function of power restraint).Whether, and to what extent, the Western legislature will bring the executive to account, in the matter of power exercised, depends on the party lines represented in the legislature itself.Depending on the opposition parties' attitude towards the conduct of administration, and on whether they are united by a common cause, the ultimate sanction of the vote of no confidence could come into play, and where it is successful, the executive may fall, along with its sponsoring party, on account of abuse of power.16While not suggesting that the problem of power control has disappeared in the Western countries,17 one notes that parliament's control function in those countries is more than just theoretical: it is certainly grounded on certain effective devices, supported by available sanctions.Legislative control of executive power in a oneparty state (de jure or de facto), which is the lot of African countries, represents a wholly unorthodox picture and must be understood in that light.The one-party parliament lacks the basic equipment with its constraints and sanctions, for effectively calling the executive to account for its policies, acts or exercises of power.Owing to the monolithic character of such a parliament, there is no active unit within its make-up, with the motivation, initiative, even capacity, to take exception to the government line, let alone articulate such a difference as a policy matter and dress it up in efficacious sanctions.More importantly, the government line represents the party line, from which the parliamentarian (who must bea member of the party) deviates at this own peril, as he may suffer revocation of his registration as a party member, whith the automatic consequence of loss of the parliamentary seat.18Besides, the vote of no confidence, the traditional parliamentary weapon, becomes impossible to employ in so far as no dissenting opinion, supported by an identifiable group of parliamentarians possessed of a determinative vote, can be articulated and given effect.Thus, even in those countries19 that have a provision for the no-confidence vote, in practice, this cannot be exercised and remains lettre morte.(It may be added that, even assuming such provisions could be employed by parliament, technicalities exist which conclusively seal their fate as totally otiose.)As has been pointed out elsewhere, the purpose of the no-confldence vote in a one-party state is to call upon the electorate, as arbiter, to resolve some major difference between the executive and the legislature: »... in practice it may prove impossible to attain this theoretical >agreeableness< within Parliament under single party conditions.[T]he leaders of the executive ... are also the leaders of the parties.ticket.If such an election were to take place following a vote of no confidence, the same men who have been denied the confidence of Parliament would be involved in the party work of nominating candidates . . .The same men would also determine who contests the presidential election . .they would effectively be determining which persons will form the new executive . ..«20Other restrictions on the vote of no confidence include: a minimum of seven day's notice of the intended motion (»said to be necessary in order to prevent the government being overthrown on a snap vote«21within which time the President could well exercise his constitutional power of dissolution, or the party could take disciplinary action against the movers-to-be of the motion!); large percentages of vote (usually two thirds of the entire voting membership of the Assembly) in support of the motion;22 the President remaining in office all the time while the ensuing elections are still in progress, or when their result is not yet known.23According to Nwabueze, »the main reason why dissolution [in the aftermath of a no-confidence vote] is not likely to be a practical weapon is that [M.P.s], particularly in Africa, stand in great fear on an election, because of its cost and the danger of loss of seat with its perquisites .«uHe remarks that M.P.s are thus »quite disposed to agree to any compromise that would avert for them a financial commitment that might prove crippling.«25The point, in effect, is that recourse to the ultimate weapon, even where it is provided for, is not likely to be seen by M.P.s as being in their best interest; and on this mundane consideration, that device is of no consequence in the relationship between the two branches of government.It emerges that institutional factors are at play which render endemic the ineffectiveness of the typical African parliament.This position, which is glaring when compared with the Western experience, must raise one's curiosity as to the experience elsewhere in the Third World.It may be noted, if only briefly, that there was much greater continuity of institutions,26 from the colonial to the post-independence era, in India: »The only major break with the colonial past that occurred was in the field of self-government of rural areas.«27The relatively settled traditions of a large bureaucracy, a plurality of political parties, legislative bodies, and a complex set of economic interests have apparently made for a differing or-der of political stability, with differing patterns of relationship between major public institutions, from the typical African situation.28Such continuity also marked the development of institutions in the Pacific,29 a pattern perhaps further enhanced by the small-scale character of the islands, the singular frailty of their economies, and their consequent dependence on Australia and New Zealand in particular, states that are at the very centre of the Western tradition of governmental organisation.Additional insights are to be gained from recent developments in Kenya, which suggest that the typical African parliament is potentially less effective still, in the task of power control, owing to certain most remarkable distortions in the usual integrity of public institutions, mainly attributable to informal formations within the executive domain., in respect of whom accusatory allegations had been made, in the aftermath of political commotions that had just come to a head with an abortive coup attempt on 1. August 1982.A Judicial inquiry into the conduct of one of such a standing, and in a situation so powerfully suggestive of improprieties in the leadership ranks, could hardly fail to lead to instructive relations on the practical aspect of the relationship between the legislature and the executive.The Commission's terms of reference included the mandate to inquire into the possible misuse by the Minister of his office »as Attorney-General and/or Minister«, and into »allegations that he arrogated to himself the duties and powers of the President; that he solicited or received or attempted to receive or offered or made or attempted to make corrupt payments, granted favours or acted to the prejudice of individuals, to seek political suport, to undermine the process of democracy . . .«32 The Commission, comprising three judges [Miller, J. A. -Chairman, Madan, J. A. 28 Id., pp.45 (both judges of some twenty years' standing) and Owuor (Mrs.),J.], set out in their task by adopting trite judicial principles.Relying on, inter alia, Halletťs Commissions and Boards of Inquiry ,33 their lordships affirmed that this was »not ... a trial of any individual«;34 »Our task as we saw it, was to determine whether the allegations specified in the terms of reference have or have not been established.«35In hearing the 62 witnesses produced by assisting counsel, the Commissioners overwhelmingly adhered to the normal court rules: »We have followed the provisions of the Evidence Act (Cap.80) governing the admission of relevant and hearsay evidence as well as the rules of natural justice in so far as they are not excluded by the nature of the inquiry being a probe.«36(b) The Miller Report and the Legislature Parliament's charge of power restraint appears to be founded in the belief that each parliamentarian is a man of integrity, guided only by what he conceives to be the best interests of his electors, and of the country at large (of course, taking into account any applicable party commitments).The vitality of the legislature extends beyond the sanctity given by the regulating normative framework, to include the calibre of its members, their autonomy and reliability.37The Miller Report, by contrast, reveals that the typical African parliament may lack a foundation of inner strength, and may be so dangerously exposed to the manoeuvres of ambitious members of the executive who have forged their way into the vital bureaucratic and technical apparatus of the state, that the basic setting no longer favours a meaningful exercise of the power-restraint function.In these circumstances executive power becomes infinitely more difficult to control, as it tends to lose its integrated and »open« character, and instead to incorporate a variegated set of active, essentially self-seeking and unaccountable ingredients vying for the use or abuse of the machinery of public power.In this respect the Report is to be considered under the following sub-headings: (i) discrediting the »dignified element« as a foundation for parliament's cohesion; (ii) use of political pressure to manipulate election candidature; (iii) employment of financial superiority to neutralise the resoluteness of parliamentarians; (iv) manipulation of civic advanta- ges to the detriment of certain parliamentarians; (v) distortion of the operation of the state's coercive resources with the aim of penalising certain parliamentarians.
(i) Discrediting the »dignified element« as a foundation for Parliament's Cohesion Walter Bagehot argued, with reference to England, that while the daily conduct of government was the function of the »efficient facet« (Prime Minister and Cabinet), the performance of this role would be impaired in the absence of the goodwill and reverence symbolised by the »dignified facet« (Monarchy).38Now in the African context the Presidency, which is the core of the »efficient facet«, is also [remarkably] the »dignified facet«,39 and hence is also the basis of the goodwill and civil obedience that are so crucial to the due operation of all the constitutional organs.The effect of adulterating that climate would most probably be a malfunctioning in the regular parliamentary processes.The Miller Report reveals the Minister under probe as having set up his own scheme whose ultimate design was to bring him to the presidency.This scheme entailed perversion of parliamentarians, so that they would accord him a semblance of legitimacy in his pursuit.The Minister, while still Attorney-General,40 had had »contact ^nen« in Parlia-> ment who presumed to know, as early as 1979, that »he was going to resign as Attorney-General and arrangements had been made for a constituency seat for him and that (he) was going to take over as President later«.41Even at that early stage the Minister had been influential enough in Parliament,42 to ensure that one of his intermediaries was appointed the Chief Whip,43 a crucial position in ensuring homogeneity of orientation amongst M. P.s, especially in a one-party parliament.For a couple of years the Minister and his intermediaries spared no effort in recruiting M. P.s to their »camp«.3)) requires only »the votes of a majority of all members of the Assembly (excluding the ex officio members)«, for such a vote to be moved.In an Assembly of 170 voting members, that would have been only 86 M.P.s, although such a bare majority would expose the initiative to a fatal risk of defection).The Commission thus recorded its finding: »We unhesitatingly express our opinion that [the Minister] conducted himself in a manner prejudicial to the Head of State, the image of the President and the constitutionally established Government of the Republic of Kenya« (para.150).
electoral choice has been much cultivated since independence, and, in a way, it may be said to constitute the very essence of Kenyan parliamentary democracy.54It is clear from the Miller Report, however, that the said democratic element in the Kenyan parliamentary system could not be taken for granted, as it has been exposed to grave risk by the political manoeuvres already recounted.Apparently in the quest for a semblance of legitimacy for his manipulations, and as a device for enhancing his standing with a view to a possible no-confidence motion, the Minister had sought to influence electoral choice in various ways.The Minister himself had resigned his position in the public service to move into a prearranged constituency after it had conveniently been vacated through the resignation of the then sitting M. P., and the Minister's election was without opposition.While it is normal in Kenya to have a couple of uncontested seats at elections, the contrivance in which a popularly elected M. P. casually announces his resignation, to coincide with the resignation of an Attorney-General who then conveniently takes over the constituency, must raise questions as to the genuineness of parliamentary representation.The Commission accepted the evidence of one witness, to whom the Minister, just before he assumed that rank, had given the ultimatum of choosing between parliamentary can-' didature, and nearly thirty years of gainful association, as a director, with a private corporation.When he opted for candidature, the Managing Director, on the »Minister's« instructions, invited the witness to sign »a request for his early retirement although he had done nothing to the detriment of the company and his retirement was completely to his disadvantage.He lost his house allowance, free furniture, educational fees for 13 children, medical benefits, and free car and petrol«.55The consequence was so agonising and domestically disruptive that the witness »became a sick man as a result«.56He was also »forced to sell his shares in [a] subsidiary company«.57His proposal to transfer his shares to one of his children was rejected because the »Minister« »did not want to hear about his children«.58From these facts it appears probable that the »Minister« was apprehensive of the prospect of the witness becoming an M. P., either because a different person was preferred, or because the witness's contribution in Parliament (to which he was elected against the odds) could not be relied on to advance significantly the »Minister's« cause.The admiration of wealth, influence, and glamour, things without a rational or ethical foundation, is a major hazard to which the institution-building effort is exposed, and in particular in new states that still lack the right atmosphere for stable evolution.If it could be said that the democratically elected legislature was the foremost point in popular choice, the Report has revealed that wealth and influence recently came into play to gravely undermine the cohesion, commitment and integrity of the Kenyan legislature as a crucial constitutional organ.It was established that when he retired as Attorney-General to become an M. P. and subsequently Minister, the Minister had benefited from certain (at least) censurable arrangements: (a) an agreement had been made between him and an M. P. under which the latter resigned his seat;61 (b) the said M. P. had »entered into the agreement as a result of overtures made to him by three of [the Minister's] friends acting as his emissaries«;62 (c) the Minister »corruptly made payment of Shs.160,000 [£ 8,000] ... to [the resigning M. P.] upon his reporting ... he had handed in his letter of resignation to the then Chief Secretary«;63 (d) »the corrupt payment . . .made . . .was to . . .undermine the process of democracy«.64The Minister had identified the »unco-operative« M. P. s and he has assigned his agents to win them over.A »difficult« M. P. was so approached, with promises that the Minister would procure his elevation to Assistant Ministerial status.Past successes in such tactics were cited in persuasion.When the overtures were rebuffed, the Minister himself took up the task, inquiring of the M. P. »why your attitude ... is always negative«.65The solicitation turned sour with the gaffe of attempting to lodge a wad of currency notes in the M. P. 's pocket, this being repelled amidst scornful yells from a couple of backbench anlookers.6659  Minister, investigations against whom had been terminated when the Minister was still Attorney-General, although inculpatory information could have been produced.86Without pretending to rely on Section 26 of the Constitution (which gives the Attorney-General a wide discretion in matters of prosecution), the Minister thwarted the proposed motion by simply conveying to the proposer through emissaries that »he would [be] put ... in trouble«87 if he went ahead.In 1978 two M.P.s had been prosecuted to conviction, on orders of the Minister who was then Attorney-General, and sentenced to five years's imprisonment each, for the offence of theft.But as early as 1980, and in complete violation of standing prison rules, the man who had just retired as Attorney-General, and was yet to become an M.P., let alone a Minister, caused prison officials to move the two ex-M.P.s to his home, there to be released after being served with a stern warning in the presence of invited members of the public!88Just after the detention, under the Preservation of Public Security Act,89 of one of the »difficult« M.P.s, and before the Commission of Inquiry was appointed, one of the Minister's agents was citing as an example the detained M.P., and demanding of another that he should co-operate with the Minister or else meet with the same fate as had befallen his hapless colleauge.90

IV. Conclusion
This article has sought to elucidate, with the aid of a current illustration, the operative character of the legislature-executive relationship in a representative African country.It emerges that in spite of the glaring abuses of the integrity of parliament, leading members of the executive, by their conduct, acknowledge the importance of the debating chamber, as the foremost council of interlocuteurs valables.The popular election, the classical democratic base, must be the genesis of parliament's stature in the configuration of principal institutions.Unfortunately, as this article reveals, complete probity cannot be guaranteed in the expression of that fundamental choice.There exists the capacity, within the ranks of the executive, to distort the true character of elections.Such distortion could extend to other aspects of the legislative entity.Parliament is a conglomeration of separate individuals, who are expected to operate as one solid core, a core of constitutional-legal standing, in the performance of specific tasks, in the interest of the nation at large.It is now clear that constitutional solidarity is liable to subversion from within the ranks of the executiveso much so, indeed, that parliamentary integrity 86 Report, para.136.87 Id., para.137.88 Id., paras.276-282.89 Cap.57, Laws of Kenya.90 Report, para.117.(For detailed discussion on the detention of M.P.s, see J. B. Ojwang, »Parliamentary is lost, and in its place a docile entity may remain, operating largely at the dictation of a wielder of power.The role that assertiveness over economic advantages, inter alia (notably the accompanying influence with bureaucratic personnel), has played in subduing individual M.P.s, and thus neutralising the integrity of Parliament as a collective body, may suggest that the typical African country, in so far as it is yet to evolve a stable economic system with common »ethics« of access and participation, is unlikely to support fully the classical parliamentary institution, with autonomy and internal discipline, in its relations with the power-wielding executive organ.91Moreover, the ill-organised and under-developed economic condition must create endless opportunities for abuse by the executive, or by elements therein, thus having a paralysing effect on traditional devices of power control.It is arguable that this impermanence in the sphere of economic gains has had implications for the possible scope of political discipline, so that the ranks of the executive can so crack that the regular power-wielding entity, the very target of parliamentary restraint, ceases to be identifiable, with the view of deploying regular control devices; instead a variety of orderless units crop up that, because of their centrifugal character, and their unsystematic mode of operation, are hardly amenable to control.The evident surplusage of executive power that appears to be the rule in most of Africa, thus defies all effective control, by the legislative or any other constitutional organ.91 Cf. text accompanying notes 26-29.
III.The Miller Report: New Insights into the Functioning of the Legislature (a) Appointment of the Judicial Commission of Inquiry On 26 July, 1983, 30 President Moi of Kenya, by virtue of powers conferred by the Commissions of Inquiry Act,31 appointed a Commission to inquire into the conduct of C. Njonjo, Attorney-General from 1963 to 1980, M.P. and Minister for Constitutional Affairs from 1980 to 1983 and A. P. Kerr (eds.)(1970)), livre XI, Chap.IV, p. 167: »[CJ'est une expérience éternelle que tout homme qui a du pouvoir est porté à en abuser; il va jusqu'à ce qu'il trouve des limites«.3 King, op.cit.supra n.I, p. xiii.4 Quoted in King, ibid., p. xvi. 5 This article builds on the foundation laid by an earlier one, entitled »Legislative Control of Executive Power in English and French-speaking Africa: A Comparative Perspective«, in Public Law, Winter 1981, pp.511-544.6 Report of the Judicial Commission Appointed to Inquire into Allegations Involving Charles Mugane Njonjo ( Former Minister for Constitutional Affairs and Member of Parliament for Kikuyu Constituency (Nairobi: Government Printer, 1984) (also known as the Miller Report after its Chairman, Hon.Mr. Justice C.H.E.Miller, E.B.S.).
. 17 Quite the contrary: see ibid. 1 8 E. g., section 34 (d) of the Constitution of Kenya 1969 (as amended) provides that a parliamentary candidate must be »a member of the Kenya African National Union and is nominated by that party in the manner prescribed by or under an Act of Parliament«.Since by s. 2A of the Constitution there can only be one party, any member of the party whose membership thereof is revoked, if he is an M.P., loses his seat and a by-election is held.19 B. O. Nwabueze, Presidentialism in Commonwealth Africa (London: C. Hurst, 1974), pp.50-53.
-A general election . . .must be contested on a [party] 16 J.B. Ojwang, Legislative Control of Executive Powers: A Comparative Study of the British and French-derived Constitutions of Kenya and the Ivory Coast, Ph.D. Dissertation, University of Cambridge (1981), pp-18-57; 58-100 -51. 29 P. G. Sack, »Constitutionalism and >Homegrown< Constitutions«, P. Sack (ed.),Pacific Constitutions (Canberra: ANU Press, 1982), pp.1-19; C. J. Lynch, »Legislatures in Some Pacific Constitutions«, P. Sack (ed.), id., pp.169-170; Y. P. Ghai, »The Relationship between the Executive and the Legislature: Some Aspects of the Systems of Government in Melanesia«, P. Sack (ed.), id., p. 207; N.K.F.O'Neill, »Human Rights in the Hands of the Judges: The Experience in the Pacific Island Nations«, Lawasia, Vol. 2, 46esident ..But this one [meaning President Moi] does not seem tó know what he is doing«.46TheM.P. »was shocked«, and his bewildered reaction sent the Minister shuffling off to the Front Benches where he should have been in the first place.47TheMinister frequently involved certain M. P. s in interference with state protocol, in a manner that had grave implications for the dignity and authority of the President.The Minister is reported to have »lobbied« with one M. P. »to personally ask ... the President to remove the Vice-President«, attaching to his plea the threat that »if the President did not do so the Kalenjin [the ethnic group from which the President comes] would live to regret it«.48In like vein the Minister prated to another M. P. that the new Attorney-General »was messing up the Attorney-General's Office«; the M. P. »should tell the President to combine the two offices of Constitutional Affairs [then headed by the Minister] and the Office of the Attorney-General so that the dignity of the office could be maintai-ned^1]«.49The Minister told the same witness he knew »a lot of people were talking a lot of [mischief] about him [the Minister] to the President ... If the President did not stop listening to such characters, one day the he [the President] might fall into trouble«.50This secretive assault on the »dignified function« was pursued to the point that the Minister was now contemplating a vote of no confidence against the President (notwithstanding the many odds against this device already considered), the stark unconstitutionality of such a move, initiated by a Minister, regardless!Section 17 of the Constitution binds all Ministers to collective responsibility, on the pain of resignation or dismissal, in case of default.51In 1981 the Minister had told one M. P. that he already had in his »camp« 60 loyal M. P.s, and in 1982 he told the same M. P. that he was seeking a following of 125 M. P.s.To this end he had sent round several of his loyalist M. P.s to enhance the recruiting, if need be, employing all means including promises of reward, threats of evil consequence, money payments, etc.52 One M. P. said »he understood the significance of [the parliamentary support sought] ... to be that they would declare a vote of no confidence ... in the Government of President Moi«.53(ii) Use of Political Pressure to Manipulate Election Candidature Electoral choice between differing complexions of policy having, in rnost of Africa, been excluded by the single-party system, the only remaining area of choicewhere choice is allowedis the free competition between candidates.In Kenya, this second order of He is reported to have told one of his followers »to tell my friends and [fellow M. P.s] to see where the light was [with the Minister himself]«.44He would occasionally invite an M. P. to see him privately, imploring on »why [the M. P.] was always showing a negative attitude towards him and why he always did not agree with his proposals in Parliament«.45During these manoeuvres the Minister would, as a ritual speak depreciatorily of the Head of State.He once said to one M. P.: »At least [the late President] Kenyatta was a The »Mini-54 J. D. Barkan and J. J. Okumu, »Patrons, machines et électioTÎ au Kénya«, C.E.A.N., Aux urnes L'Afrique: Elections et pouvoirs en Afrique noire (Paris: Editions A. Pedone, 1978), pp. 1 19-147.(C.Desouches urges caution of electoral choice in the one-party state: »[Election au suffrage universel direct] ... qui a toujours été considéré comme un des critères du caractère démocratique d'un régime politique perd . . .une grande part de sa crédibilité dans la mésure ou, de par les techniques électorales adoptées et le rôle prépondérant que jouent les partis, surtout quand il s'agit d'un parti politique unique de fait ou de droit, dans le choix et la révocation des députés, la liberté de choix des électeurs, semble gravement compromise« -C.« had indeed told another M. P. »that there were certain [M.P.s] who were not useful to him or to this Government«59and five names were named.(iii) Employment of Financial Superiority to Neutralise the Resoluteness of M. P.s A Cabinet colleague and supporter of the Minister is reported to have gone speechifying in the latter's home district, and had lavished praise thus: »[The Minister] was a good man, clever, rich and . . .had a lot of good leadership in him.The [local] people . . .were very lucky to have someone . . .who could do whatever they wanted for them.He appealed to them to give [the Minister] their support because he was a powerful man, one day he might even rule the country . ..«60 ster