Blunders in laws for new Constitution

• Kenya Law Reform Comm-ission expressed a silent view that 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

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.