About 30 legislations were enacted by May 2012 as required by
the constitution. The Constitutional Implementation Commission (CIC) is the
body charged by the 2010 Constitution and the Implementation of the
Constitution Act 2010 with the function to monitor, facilitate, coordinate and
oversee the development of the legislation and administrative procedures
required to implement the constitution.
“Of concern to CIC is the apparent slow down in the
Constitution implementation process. Despite having laws in place relevant
institutions such as the Office of the Inspector General, the National Police
Service Commission, the Independent Police Oversight Commission and the Ethics
and Anti-Corruption Commission are not yet fully operational. This apparent
slow down of reforms especially in the penultimate stages is a set back in the
implementation process.” Charles Nyachae-Chairperson CIC, this statement by the
CIC chairperson shows that all is not well in the implementation process.
The CIC in its quarterly reports on the period of
January-March 2012 identified the following as challenges in the implementation
of the constitution:
1.
Irregular
amendment of Bills by the Executive and Legislature
Some Bills which had been approved by the CIC and the
implementing partners (the office of the Attorney General, the KLRC and the
line Ministry) at final roundtable meeting and forwarded for publication, were
amended without reference to CIC. Some of these bills had unconstitutional
provisions that found their way in the Bills and some provisions required by
the Constitution were omitted from the Bills. The Land Bills at that time had
been notorious in this respect. There is need for increased coordination
especially within and from the Executive to ensure that relevant processes in
the preparation of bills are undertaken timely.
2.
Deliberate
attempts to mislead the public on key constitutional issues
The tendency by some politicians to mislead the public on some
aspects of implementation is a challenge. The most recent example is the debate
on the election date. The
announcement of 4th March 2013 as the election date was followed by a debate in
which some politicians accused the IEBC of overstepping its mandate. The
accusations and attacks on the IEBC has the potential of undermining the
authority of not just IEBC but also other independent constitutional offices.
Political leaders should exercise leadership at all time to ensure that the
implementation process is on track. Any disagreements with decisions taken by
constitutionally mandate bodies should be referred to the appropriate judicial
authorities for determination to ensure constitutionality is upheld.
3.
Delay
in operationalizing key constitutional offices
Failure to appoint members to key institutions and Commissions
remains a key concern. This is due to protected political interests.
Appointment of the chairperson and members of the Ethics and Anti-Corruption
Commission and other key constitutional offices and Commissions also the appointment of the Inspector general should
be finalized as a matter of extreme priority.
4. Disregard
for CIC’s mandate and public participation
The publication of
important Bills affecting the Nation without fulfilling the Constitution’s
requirements of public participation and review by the Commission presents a
challenge. For example, the Cabinet approved of the Companies and Insolvency
Bills and they subsequently were published without subjecting the Bills to the
Commission’s review and other relevant stakeholders input.
The CIC considered
the aforementioned proposed laws essential in safeguarding and guaranteeing the
implementation of the rights enshrined in Chapter Four of the Constitution,
such as, Article 40 among other relevant principles and values of the
Constitution. The CIC was of the view that all Bills under formulation, whether
referred to under the Fifth Schedule to the Constitution or derived from other
Articles of the Constitution, should be submitted to the Commission for review
to verify their conformity to the letter and spirit of the Constitution prior
to publication.
5.
Deliberate attempts to disregard the
Constitution implementation process and mandate of the CIC
The tendency by
some partners in the process of preparing bills to overlook some aspects of the
process undermines the implementation efforts. CIC has observed that some bills
are presented to Parliament without the involvement of CIC and in some cases
without even the knowledge of CIC. This happens when those generating the bills
and sometimes even the Office of the Attorney General fail to inform CIC about
the status or even existence of such Bills.
6.
Late submission of Bills
Some implementing
partners persist in not meeting deadlines agreed for processing of bills. Late
submission has been a persistent problem through the implementation process.
Every implementing partner should respects the process of developing bills as
agreed upon, including respecting deadlines. This will ensure that the minimum
required levels of stakeholder engagements are undertaken and all legislation
enacted comply with the letter and spirit of the Constitution.
7.
Conservatism
The anti reformist
groups prevalent in the country still remain in the institutions that are to
facilitate change. They will keep slowing down the good will. Some are keen on
maintaining the status quo in order to protect their positions, connections and
at times ill acquired wealth.
The attempts by the
Office of the President over the role of provincial administration and the
issue of Local Authorities and the task forces in the ministry of Local
Government further attests to that fact.
By May 2012, the
following legislations were enacted unconstitutionally:
·
The
Contingencies Fund and County Emergency Funds Act, 2011
·
The
National Government Loans Guarantee Act, 2011
The Constitutional
Implementation Commission had instituted the following cases by May 2012 as
public interest litigation:
1. Constitutional Petition No. 65 of 2011
(Case for Determination of the Date for the Next General Elections)
2. Constitutional Petition No. 102 of 2011
(Case for the appointment of at least one third women to the Supreme Court)
3. Constitutional Petition No. 145 of 2011
(Case to Clarify the Procedure for the Preparation of Legislation to Implement
the Constitution)
4. Constitution Petition No. 137 of 2011
(Case to Determine Whether MPs Should Pay Tax)
These cases by CIC
have managed to keep the implementation process on cause.
ADDRESSING THE CHALLENGES AND IMPEDIMENTS
TO CONSTITUTIONAL IMPLEMENTATION
The challenges
highlighted above could be addressed through a number of steps. In this regard,
the following recommendations are made.
·
Adherence to the agreed timelines and
processes of enactment of laws
Every implementing
partner should respect the process of developing bills, including respecting
deadlines. This will ensure that the minimum required levels of stakeholder
engagements are undertaken and all legislation enacted comply with the letter
and spirit of the Constitution.
·
Increased coordination in the Executive
There is need for
increased coordination especially within and from the Executive to ensure that
relevant processes in the preparation of bills are undertaken timely.
·
Political leadership
Political leaders should
exercise leadership at all time to ensure that the implementation process is on
track. Any disagreements with decisions taken by constitutionally mandate
bodies should be referred to the appropriate judicial authorities for
determination to ensure constitutionality is upheld.
·
Operationalization of key constitutional
offices
Appointment of the
land Commissioners and other key constitutional offices and Commissions should
be finalized as a matter of extreme priority.
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