PROPOSED LEGISLATION THAT WILL INFLUENCE URBAN DEVELOPMENT

Their are two legislation in the pipeline being fronted by both the National Land Commission and the Ministry of Lands, Housing and Urban Development separately. The two Bills intend to a achieve a similar objective of regulating planning by aligning the Physical Planning Act to the Constitution of Kenya 2010 before the August set deadline.

This two Bills are the Physical Planning Bill and Land Use planning Bill.

It would be of importance to look at the proposal in the two Bills that might improve planning in Kenya by reducing the influence of the 'rules of experts' and facilitating citizen participation in planning.

"THE NATIONAL YOUTH EMPLOYMENT AUTHORITY"

Are Kenyan youth really interested in forming "THE NATIONAL YOUTH EMPLOYMENT AUTHORITY"?
THE NATIONAL YOUTH EMPLOYMENT AUTHORITY BILL 2015 has been introduced in parliament by Hon. Sakaja.
It is my feeling that this Bill is not well thought out and only attempts to institutionalize a structure whose functions and purpose are not well defined.
What is your take?


http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2015/NationalYouthEmploymentAuthorityBill2015.pdf

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.