Kibaki and Raila on the spot

President Kibaki and Prime Minister Raila Odinga on Tuesday sat through a forum where the government’s commitment to implementation of the new Constitution was called into question.

The chairman of the Commission for the Implementation of the Constitution (CIC), Mr Charles Nyachae, cited the reluctance of ministers to surrender office in political parties, the government’s failure to adhere fully to requirements for gender balance in appointments to public office, and the refusal of MPs to pay income tax.

Delight at KRA move

He, however, expressed delight at the recent move by Kenya Revenue Authority to subject MPs to full taxation on salaries and benefits.

“Violation of the new Constitution will no longer be the order of the day...Kenyans will use all legal and constitutional means to ensure this does not happen,” said Mr Nyachae at the official opening of the National Constitutional Conference at Kenyatta International Conference Centre in Nairobi.

But Prime Minister Odinga sharply differed with the CIC chair over the requirement that state officers should not hold positions in political parties.

“The Chairman of the Commission for the Implementation of the Constitution says no politician should hold such a position; that is no MPs and no ministers. So I ask him, are we going to get these leaders from the Church?”

Article 77 (2) of the Constitution bars appointed State officers from holding office in a political party.

Supreme court’s help

According to the CIC, this in the new Constitution includes the President, Deputy President, Cabinet Secretaries, MPs, secretary to the Cabinet, Attorney General, judges and magistrates, members of State commissions, holders of independent offices, governors and their deputies and county assembly members.

Mr Odinga said that politicians should be left alone to run their political party offices, suggesting that the Supreme Court could be called upon to resolve the matter.

“It is clear that we have differences in the interpretation, but luckily we now have a Chief Justice and his deputy. The Supreme Court is almost in place. Let us see whether they will come up with an interpretation like yours,” he told Mr Nyachae.

Those likely to be affected by this requirement include ministers who also chair political parties: Deputy Prime Minister Uhuru Kenyatta (Kanu), and ministers George Saitoti (PNU chairman), Samuel Poghisio (ODM Kenya), and Charity Ngilu (Narc).

Others are ministers Kiraitu Murungi (PNU secretary-general), Anyang’ Nyong’o (ODM secretary-general) Mutula Kilonzo (ODM-K secretary-general) and John Munyes (Ford Kenya).

They would all have to quit their party positions if the constitutional provision is effected. (READ: Top Kenyan ministers to be stripped of party posts)

Also likely to be affected are MPs who also head political parties, such as Martha Karua (Narc Kenya), Henry Kosgey (ODM) and Moses Wetang’ula (Ford Kenya).

Others are Asman Kamama (Narc-K vice chairman), Danson Mungatana (Narc-K secretary-general), Eseli Simiyu (Ford-K secretary general), and Aden Duale (ODM vice-chairman).

The CIC last month asked the Registrar of Political Parties to ensure that ministers, their assistants and MPs do not hold party office.

Mr Nyachae was responding to a query from the Registrar, Ms Lucy Ndung’u, who had asked for an interpretation of the law barring state officers from political party leadership.

However his response spared President Kibaki (PNU party leader), Mr Odinga (ODM party leader), Vice-President Kalonzo Musyoka (ODM-K party leader) and Housing Minister Soita Shitanda (New Ford Kenya party leader) since the positions they hold are not recognised in their respective party lists of office bearers.

Justice Minister Mutula Kilonzo said recently that current Cabinet ministers were serving under the provisions of the old Constitution.

Mr Nyachae also asked President Kibaki and Prime Minister Odinga not to confirm public appointments that do not uphold the principle of gender equity.

“The principals should reject any public appointment that fails the equality test,” he said, “it must not be allowed to happen.”

He also expressed disappointment that political rivalries were threatening to derail implementation of the Constitution.

“There are some leaders that are living in denial...they are having the wrong mindset and will resist change in all ways... we are telling them to accept that old is gone and new has come. They must put their selfish interests aside,” he said.

However, the President and Prime Minister remained optimistic that despite the challenges, the Constitution would be fully implemented.

President Kibaki called for consensus on the difficult issues. “At the end of this conference, we should have formulated forward-looking strategies to enhance the implementation process,” the President said.

“We also want to build consensus on important issues that affect implementation and the progress so far,” he said.