Nyachae says Cabinet allowing shoddy Bills

The group monitoring the implementation of the Constitution has accused the Cabinet and MPs of “blatant violations” of the law in the last three months.

The Commission for the Implementation of the Constitution (CIC) says “cases of impunity and misinterpretation of the Constitution have worsened”.

It claims in a strongly-worded quarterly report that the Cabinet is taking advantage of falling interest in matters of the law among Kenyans to amend the Constitution.

“The CIC will take all necessary measures to ensure that the rights granted to the people of Kenya in the Constitution are not taken away through unjustifiable constitutional amendments that are not made in the interest of the people of Kenya,” CIC chairman Charles Nyachae says in the report submitted to Parliament and to President Kibaki.

Two amendments are lined up in Parliament, with the Constitution of Kenya (Amendment) Bill, 2011, scheduled for First Reading (formal introduction in Parliament) this week.

The Bill seeks to change the election date from the second Tuesday of August to the third Monday of December in every fifth year of the election cycle. (READ: Why next year’s election may not be held in August)

There’s also a proposal to amend the one-third gender clause that seeks to increase the number of women in public positions, especially Parliament.

The CIC wants the gender proposal to be implemented without amendments. However, it welcomes changes that will enhance affirmative action as enshrined in the Constitution.

“Although CIC acknowledges that the Constitution contemplates the possibility of amendment, CIC is also aware that unnecessary amendments made this early would undermine the Constitution.

“Any amendments to the Constitution must enhance, not claw back on the letter and spirit of the Constitution,” the commission says.

The CIC is scheduled to meet women MPs to chart the way forward on the matter, especially after it rejected the proposal put forward by women organisations seeking to reserve 72 seats for women.

The commission says the proposal was “a violation of the fundamental right to vote and choose a representative from the whole possible population of those wishing to seek elective posts.”

Attorney-General Githu Muigai is also opposed to amendments to the new set of laws. In his first address after taking office in August, Prof Muigai promised to resist political pressure to change the law.

“…the CIC is gratified that the newly appointed AG has publicly expressed his displeasure with piecemeal amendments, and looks forward to receiving proposals on other means of achieving gender equity from the AG,” the report notes.

But it is not clear if the commission has also noted that Prof Muigai sits in the Cabinet and he’s the chief legal guide of the government.

It may also be that the Cabinet ignored his advice to stop amendments until the implementation is fully rolled out.

Report’s warning

The commission is also upset with MPs for passing two Bills in spite of a court order restraining Parliament from working on the Bills.

“Parliament disregarded due process as laid down in the Constitution in the preparation and enactment of the two laws.

“Whereas the court issued orders restraining the tabling of the Bills, the Bills were in any event tabled, passed and assented to by the President. The court case is still proceeding,” warns the report, the third since the commission was formed.

According to a previous Speaker’s ruling, once Parliament was seized of a matter, a court process should not hinder the execution of the legislative mandate, unless the Speaker is notified beyond doubt that the matter is “active” in court.

The House was already processing the two Bills — the National Government Loans Guarantee Bill, 2011 and the Contingencies Fund and County Emergency Funds Bill, 2011 — before the CIC went to court and therefore under the doctrine of separation of powers, the House had a right to proceed with the execution of its legislative mandate.

However, under the spirit of constitutionalism, the House was obliged to listen to the commission and get its input on the Bills before enacting them.

CIC warned there was a feeling among players in the financial industry that the Bills were rushed and MPs showed a “possible lack of efficiency in dealing with the matters around which the Bills were conceptualised”.