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.
Author(s): Walter Khobe Ochieng
Publisher: Journal of African Law
Year: 2022
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
