Presidential Veto in the Law-Making Process: The Case of Kenya's Amendatory Recommendations

This article contends that the interpretation of article 115 of the Constitution of Kenya as providing for amendatory recommendations as a form of presidential veto to legislative bills is a departure from the common negative veto to bills which was the form envisaged by the drafters of the Constitution. Moreover, it is argued that the interpretation that article 115 of the Constitution allows the president to make positive legislative recommendations which can only be overridden by two-thirds of members of the legislature has transformed the president into the most decisive player in the legislative process in Kenya. The overarching contention of this article is that allowing the president to make positive legislative recommendations that can only be overridden by two-thirds of members of the legislature goes against the goal of tempering presidential powers, which was one of the animating goals that informed the quest for constitutional change in Kenya. Presidential Veto in the Law-Making Process: The Case of Kenya's Amendatory Recommendations Introduction The evolution of the veto in the period 1963--2010 Presidential reservations in the post-2010 dispensation An empirical examination of the exercise of presidential veto in the post-2010 dispensation Veto of the Kenya Information and Communications (Amendment) Bill 2013 Veto of the Retirement Benefits (Deputy President and Designated State Officers) Bill 2013 Veto of the Public Audit Bill 2014 Veto of the Finance Bill 2017 The construction of the exercise of the presidential veto in the post-2010 dispensation Article 115 of the Constitution does not envisage positive amendatory presidential recommendation Constitutional design choice not constitutional silence Reservations not a licence for amendatory veto Simple majority of the legislature suffices to override a positive amendatory recommendation The textual hook: The import of Article 122(1) of the Constitution The value of democratic governance and value-laden interpretation of the Constitution The historical context argument Conclusion