Blunders in laws for new Constitution

Government lawyers want MPs barred from having the final word in the review of electoral boundaries. (READ: Boundaries: Fresh battle looms in House)

The lawyers have also proposed amendments to the law to give the electorate powers to sack their MP, senator or councillor at any time within the five-year term.

They have pushed for the independence of all constitutional commissions, saying that the way MPs made the laws curtailed the autonomy guaranteed in the Constitution. The lawyers also want MPs to be clear on the education level of the people eligible for elections.

Also, the Kenya Law Reform Commission has expressed a silent view that the MPs drop their quest for self-preservation when it comes to law-making if they have to deliver laws that conform to Kenya’s 17-month-old Constitution. (READ: MPs seek 3 month extension of new law deadline)

In a scathing brief to the Justice and Legal Affairs Committee of Parliament and the minister for Justice, Mr Mutula Kilonzo, the commission has pointed out 120 legislative blunders that the MPs committed as they approved laws to roll out the Constitution.

The legal team domiciled in Mr Kilonzo’s office has also proposed amendments to the laws to ensure that they are in line with the Constitution.

The team is peeved that MPs inserted clauses to force the IEBC to “take into account” whatever changes that the House will put in the boundaries report, currently under review by the Justice and Legal Affairs Committee.

“Where MPs give any recommendations on the boundaries report, these can only be considered by the commission, but they are not binding,” reads the brief seen by the Nation. “MPs like all other people of Kenya shall in any event have an opportunity to challenge the report in court as provided (in law)”.

The lawyers thus propose an amendment that will guarantee the independence of the IEBC, saying that the law as it is “is an affront to the Constitution”.

The shock to the MPs will come in the many proposals to the Elections Act, especially, the procedure of recalling non-performing MPs.

MPs had put amendments in the law blocking recall within the first two years, and within the last year, thereby giving the public just two years within which to recall them. The MPs had also connived to delay such recalls by subjecting the petitions for recall to the scrutiny of the court, before a poll to kick them out is carried out.

But the government lawyers have termed the law as it exists unconstitutional.

“It is the right of the people to initiate a recall election, and if all requirements are met, a recall election should be held,” the KLRC brief reads. “The Constitution gives power to the electorate to be able to initiate a recall election any time after the election of an MP. As such, a recall election cannot be limited to only two out of five years of the life of an MP in Parliament.”

The argument is that the sovereign power rests with the people, and because MPs are representatives of the people, they should not deny those who chose them the chance to exercise their right to decide who they want to represent them in the august House.

When MPs mutilated the law, they argued that if the clause is let loose, their opponents would be on perpetual campaigns, and it would be an election cycle throughout the five-year term. The MPs had also said that if they survived a recall vote, then, they should be left to serve the remainder of their term.

“An unsuccessful contestant of an election will be a member of the electorate like any other citizen, and as such, should be able to file an election (recall) petition,” the government lawyers noted in their brief to Parliament.

The brief also proposes the scrapping of the fee for a recall petition. The Act prescribes a fee for Sh500,000 for a recall against an MP. According to the lawyers, it made nonsense of the law to peg a constitutional right on a fee.

It would be interesting to see if MPs will acquiesce to this recommendation.

Similarly, the law will be amended to let the courts set the fee for an election petition. The proposal is for the deletion of the Sh1 million fee for presidential election petitions; Sh500,000 for MP or governor and Sh100,000 for a county ward representative.

“If stipulated in law, such fees could be too prohibitive to the ordinary citizen, and could be a violation of access to justice under Article 48 of the Constitution,” the memo reads.

There’s also the proposal for the Elections Act to be amended to define what MPs mean by “post-secondary education” as the bare minimum for one to qualify for election as MP or Senator. While the law is clear that for the President, deputy President, Governor and deputy Governor — they all must have university degrees to qualify — it is vague when it comes to MPs and county representatives. (READ: Technocrat or politician for governor?)

“A post-secondary school qualification could be a certificate for any training received after secondary school, from as short a duration as a three-day training course, to a certificate in professional study, to a diploma or a university degree. Clarity is necessary on the exact level of qualification required here,” the lawyers noted.

MPs deleted the amendment requiring them to have degrees, saying that leadership had nothing to do with university degrees.

University education

However, the next Parliament will have sweeping powers when it comes to legislation, especially on issues to do with the country’s economic management. Therefore, it is only logical that people with university level education will be eligible for the vote.

Aside from the academic certificates, the leaders will also have to get a “certificate of compliance with the ethical values articulated in Chapter 6”.

There are also proposals to ensure advance voting of patients in hospitals, pastoralists, armed forces, the elections officers and “other citizens providing essential services”.

“While all voting should take place on the same day, the right of all persons to vote should be respected,” the lawyers noted, adding that this should be done in the interim as the country strives to come up with laws to take up technology to allow seamless voting on the same day.

The Constitution provides that all voting be done on the Second Tuesday in August in every fifth year.

The proposals also provide incentives for political parties which will practise affirmative action, more so, when it comes to women candidates. This is in relation to the Political Parties Act. The lawyers also propose that the disbursement of funds to political parties take cognizance of membership, given the possibility of defections and resignation.

There’s also a provision to ensure that the money submitted to political parties is not used for election campaigns of a candidate.

The Police Service Act is also crying out for amendments and the lawyers have proposed the deletion of some clauses which “serve no purpose” and guarantee the independence of the Inspector General.

The amendment seeks to deny the President the power to appoint a Cabinet secretary to act as the Inspector General should the substantive holder of that post fail to perform their duties.

“The Inspector General has independent command over the service. To ensure the independence is maintained and non-interference by the Executive, the replacement in the absence of the Inspector General, should be by a deputy Inspector General appointed by the commission,” the audit noted.

The audit is with the MPs, who will go through it, and then, when Mr Kilonzo or Attorney General presents the amendments to the House, they’ll then see what they want to approve and what they don’t want.

For now though, the laws remain unconstitutional and inconsistent, a stark reminder about the brazen selfishness of the lawmakers — or their incredible incompetence when it comes to their core work.