You cannot interpret law, MPs told

The Commission for the Implementation of the Constitution has warned MPs they have no jurisdiction when it comes to interpreting the Constitution.

Speaking at a monthly breakfast meeting with parliamentary journalists at Nairobi’s Sarova Stanley Thursday, the commission chairman, Charles Nyachae said that mandate lay with the Supreme Court. In the transition period, he noted, the Court of Appeal had the jurisdiction to interpret the law.

“That’s the law. The final arbiter in terms of interpreting this document is the court; it’s not Parliament,” he told journalists.

The statement comes against a backdrop of heated arguments and partisan interpretations of the Constitution among MPs, especially, with regard to the dispute over President Kibaki’s nominations of four constitutional office holders.

The row has divided the House into two camps --those supporting President Kibaki who made the nominations and those supporting Prime Minister Raila Odinga who has since rejected the nominations, saying he was not consulted. (Read: Kibaki’s judiciary nominees spark new round of coalition clashes)

The CIC chair said that should the lawmakers go ahead and approve the names, then the commission might as well be forced to go to court and seek the correct interpretation.

He quoted article 163(6), which when read together with article 259 and article 260 grants the commission the opportunity to seek redress in the Supreme Court.

“If any debate is outside the Constitution, then it’s not a helpful one... we don’t need to look extraneously to find a solution, we have this Constitution,” he noted.

Mr Nyachae added that the commission won’t be used to settle political scores. He recalled that in his appearance before the Finance, Planning and Trade committee last week, MPs forced him to respond to “political question” concerning the legality of Mr William Kirwa’s nomination as the Controller of Budget. He declined to answer.

“We shall discharge our mandate professionally, without fear and without bias,” added Prof. Peter Wanyande, a commissioner of the CIC.

The commissioner added that it was crucial for all Kenyans, including the President, the Prime Minister and MPs to “avoid “arbitrariness in the management of public affairs.”

“Arbitrariness leads to dictatorship,” Prof Wanyande said.

“People just talk about the letter, but there’s also the spirit and the intent, and someone reminded me recently-- the good spirit-- that have to be respected in the implementation of this Constitution. Implementation is not just about passing laws, it’s about observance of the Constitution.”

The commissioners said that the CIC’s priority was now on fast-tracking the law to set up the Supreme Court. The Supreme Court is required to be in place by August 27 this year.

But as the CIC commissioners rallied MPs and Kenyans to ensure the aspirations of Kenyans as captured in the preamble of the Constitution are realised, MPs present at the meeting raised doubts.

“This is not the Parliament that will deliver the new dispensation, unless we undergo a rebirth overnight,” said Ms Rachel Shebesh (nominated, ODM).

She said many of the MPs were “genuinely and firmly” against the new Constitution prior to last August’s referendum, and that it is this lot that was keen to derail the process.

“I know we’ll pass the legislation that allows us to go to the elections and to set up the new devolution structures, other than that, if you wait for us, you will wait forever,” she said.

“If we have reached here, at this stage, and the acrimony is this much, I honestly have no faith that we can deliver.”

The MP lamented that the succession politics had taken over the implementation agenda.

“We stand accused because we’ve put political expediency ahead of the implementation process,” Mr Danson Mungatana (Garsen, Narc Kenya) added.

“Some of us in that House don’t have big brothers or (cronies); we don’t have those we answer to except the people who elected us. We just met in Nairobi”.

Joined by assistant minister Lewis Nguyai, the MPs said they hoped House Speaker Kenneth Marende would unlock the impasse over nominations. Mr Mungatana added that the Executive had to be disciplined into respecting the Constitution.

“If we allow the Executive to get away with this one, they’ll do it again and again and again."