Is the referendum push to amend the Constitution warranted?

I strongly feel that the referendum push to amend the constitution is premature and lack material content to warrant a referendum. I say this with no affiliation to any of the two political divides.

NAIROBI COUNTY GOVERNOR'S POSSIBLE FATE

The act of Hon.Evans Kidero to slap Nairobi Women representative Hon. Shebesh might just cost him his job.

Under section 252 of the Penal Code it states that "Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years".

The act is considered an assault and has since been report to the police for prosecution. In the event the court finds Hon. Evans Kidero guilty of assault it will attract a sentence of up to five years imprisonment.

The Constitution of Kenya envisages the removal from office of a county governor. Under Article 181(1) A county governor may be removed from office on any of the following grounds––

(b) where there are serious reasons for believing that the county governor has committed a crime under national or international law;

(d) physical or mental incapacity to perform the functions of office of county governor.

Article 182. (1) The office of the county governor shall become vacant if the holder of the office—

(d) is convicted of an offence punishable by imprisonment for at least twelve months

I wait to see the unfolding of this case but my advise to all leaders is to exercise temperance.

CHALLENGES, IMPEDIMENTS IN THE IMPLEMENTATION OF THE 2010 KENYAN CONSTITUTION

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.

                               

The KNHRC proposes legalizing of prostitution and homosexuality!

POLITICAL PARTIES

 The current political parties wrangles are shaping up the Kenyan political parties law.

THE HUMANITARIAN INTERVENTION PRINCIPLE

Article 2(4) of the UN Charter prohibits the use of force as a measure to maintain international peace and security.Article 51 of the same charter provides for accept ions to this rule;that state can use force against other state in self defense and in enforcing the UN actions.
A new exception to this rule also that is not directly mentioned in the UN Charter is the use of force in Humanitarian interventions. This principle is a good ground for the use of force in stopping the tyrant rulers from harming its civilians.The flip side is that this principle has been used to advance political courses in the international community.
The USA inversion of Iraq was justified after attempt to locate nuclear weapons failed as humanitarian intervention.
Currently in Africa the choice between Ivory Coast and Libya is influenced by certain interest.The justification given in the bombing of Libya is also based on Humanitarian intervention.
The real question is why choose to intervene in the Libyan situation over the Ivorian one which preceded the Libyan one? Is it influenced by some political or economic interest?
The untold part of the Libyan story is that the rebel army opposed to colonel Qaddafi's erratic control took arms against his regime.The legal question that lingers in my mind is whether an armed rebel group is still consider civilian? and whether the regime in place is allowed to defend itself and citizens from acts of aggression?
Though I am opposed to any tyrant rule, this principle has been used on several opportune moments by the Developed countries in furthering their selfish ambitions and should be well structured to avoid misuse.

THE POSITION OF EQUITY UNDER THE NEW HIERARCHY OF LAWS IN KENYA

UNDER THE FORMER CONSTITUTION

Under article 3 of the former constitution of Kenya it is provided that:

“This Constitution is the Constitution of the Republic of Kenya and shall have the force of law throughout Kenya and, subject to section 47, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void…”

From the above article the constitution is the supreme law of Kenya and any other law has to be subject to the constitution.

Cap 8 – Judicature Act

The Judicature Act provides for the hierarchy of laws to be applied by the Kenyan courts.

Section 3 of the Act provides:

3. (1) The jurisdiction of the High Court, the Court of Appeal and of all subordinate courts shall be exercised in conformity with –

(a) the Constitution;

(b) subject thereto, all other written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act, modified in accordance with Part II of that Schedule;

(c) subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August,1897, and the procedure and practice observed in courts of justice in England at that date; but the common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.

(2) The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.

Under Section 3(c) the doctrine of Equity applied in so far as the written laws did not extend or applied. This implied that the written laws in Kenya took precedent over the doctrines of equity.

THE NEW CONSTITUTION

The constitution has chosen to address the hierarchy of laws in Kenya. Article 2 states

2. (1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.

(2) No person may claim or exercise State authority except as authorized under this Constitution.

(3) The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.

(4) Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.

(5) The general rules of international law shall form part of the law of Kenya.

(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.

The new constitutional order does not out-rightly refer to the doctrine of equity as a source of law in Kenya. Article 2(5) refers to the general principles of international law forming part of Kenyan law. The question will be, whether the doctrines of equity form part of the general principles of international law?

This is a debate that has blogged the minds of legal scholars in the international community. In the Netherlands v Belgium (1937)¹ case on diversion of water from the River Meuse, Judge Manley stated “Under article 38 of the statute, if not independently of that article, the court has some freedom to consider principles of equity as part of the international law which it must apply.”

Also in the Norwegian Ship Owners’ Claims² (between the U.S. and Norway) who were to decide the claims by applying ‘law and equity’ said:

“The words ‘law and equity’ … can not be understood here in the traditional sense in which these words are used in Anglo-Saxon jurisprudence. The majority of international lawyers seem to agree that these words are to be understood to mean general principles of justice as distinguished from any particular system of jurisprudence or the municipal law of any state”

Judge Anzilotti, the Italian jurist who had been the rapporteur of the 1920 Advisory Committee to draft the Statute of the Permanent Court of International Justice, describing the maxim ‘one who seeks equity must do equity’ as:

“So just, so equitable, so universally recognized, that it must be applied in international relations. [It is one of the] general principles of law recognized by civilized nations.”³

Justice Margaret White stated in her article⁴ “…when consider in the context of specific cases, equity has a wide acceptance and is part of the general stock of legal norms of the international order…To this extent equity is a general principle of law recognized by civilized nations.”

From the above authorities, the doctrines of equity are settled to be general principles of international law, hence, applies in Kenya under Article 2(5) of the constitution of Kenya.

CONCLUSION

The difference between the position of equity in the older constitutional dispensation and the current one is that; in the former constitutional order the doctrines of equity applied where written laws did not extend or apply. The new constitutional order changes this position by making the general principles of international law part of the Kenyan law. This means that the doctrines of equity automatically become part of the Kenyan laws without being subject to other statutes, a position it held in the former constitutional order.

1 Diversion of Waters from the River Meuse (Netherlands v Belgium) [1937] PCIJ (ser A/B) No 70,4.

2 (1922) 1 Reports of International Arbitral Awards 307.

3 Diversion of Waters from the River Meuse (Netherlands v Belgium) [1937] PCIJ (ser A/B) No 70, 4, 50.

4 EQUITY – A GENERAL PRINCIPLE OF LAW RECOGNISED BY CIVILISED NATIONS? 2004