2012: Poll exercise could be late as CIC fails to act tough

By MARTIN MUTUA and PETER ORENGOAmid growing concern over the slow pace of drafting and passing new laws, the apparent failure of the Commission on Implementation of the Constitution (CIC) to stamp its authority on the process has raised the possibility of the next General Election being pushed forward.
So far only two Bills have been passed by Parliament out of 29 that MPs were to approve within the first year of the promulgation of the new Constitution. With only three months left to the anniversary of Promulgation of the new Constitution, it is apparent that much ground will have to be covered within a very short period to ensure timelines are met.

A section of the Commission on the Implementation of the Constitution, led by chairman Charles Nyachae (right) during a past meeting. The commission says it is still on track. [PHOTO: ANDREW KILONZI/STANDARD]

But so far, only the Vetting of Judges and Magistrates Bill and the Judicial Service Bill have been enacted into law. The process has been thrown badly behind schedule by the shifting of goalposts, and wrangling between the two parties in the Grand Coalition Government over the leadership of a key committee of Parliament.
The CIC, which was initially pushing for speedy implementation, now seems to have shifted its earlier stance and is urging caution.
The Commission has muddied the waters further by implying that meeting timelines set by the drafters of the new Constitution regarding passing of new laws and setting up of key institutions is secondary to getting them right.
CIC is now warning that Kenya runs the risk of ending up with bad laws despite voting for a new Constitution, yet its chairman, Charles Nyachae insists everything is still on track. But others feel the CIC is creating problems where there are none to cover for what they regard as its glaring lack of consistency.
The Chairman of Parliament’s Oversight Committee on the Implementation of the Constitution (CIOC) Mr Abdikadir Mohammed differed with Nyachae saying timelines as outlined in the Constitution will have to be honored. The Mandera Central MP told The Standard there was no excuse for delaying passing of the new laws.
"It does not mean that if you rush the bills you will compromise the quality because I can tell you most of these bills have been on the books for the last five years," he added.
Abdikadir pointed out that Bills like those of the electoral laws have been formulated along time through task forces.
He further noted that the Justice Ransley committee had laid down the content for security bills.
On the judiciary, Abdikadir said the Justice Ouko Commission had done a lot of work on them, adding that task forces and other forums had generated most of the bills.
"It does not mean CIC will have to reinvent the wheel now and look at all the Bills afresh," he added.
Private members BillsAbdikadir warned that if the relevant Bills are not brought to the House on time and there is a delay they will have no option but to facilitate members to take up the Bills and bring the same to House in form of private members Bills.
The CIC’s sudden lack of urgency is also starkly at odds with that of Justice Minister Mutula Kilonzo who, while acknowledging the important role the CIC is playing, continues to warn that Kenyans may not vote in the first General Election under the new Constitution if politicians do not get their act together. "Even the elections being held in December next year might also turn out to be another challenge," he warns.
For example, the yet to be constituted Independent Electoral and Boundaries Commission (IEBC) has a lot of work to dispense with before starting preparations for the next elections.
First it has to create 80 new electoral commissions whose creation was left in limbo after the recommendations by the defunct Interim Independent Boundaries Commission were not implemented.
The IEBC will also have to employ staff to run offices in all districts, and this may consume a lot of time.
Besides the IEBC Bill, there are several other laws that are necessary to anchor reforms before the next elections, including the Elections Bill, Political Parties Bill, Supreme Courts Bill and police Reforms Bill. The Bills are already before Parliament, but are yet to be passed.
Instead, MPs from the Orange Democratic Party and the Party of National Unity — with support from the William Ruto wing in ODM — have transferred their battles to the House, throwing the vital Justice and Legal Affairs Committee into disarray.
The committee is supposed to scrutinise Bills before they are taken for debate but the wrangling has grounded its operations.
The deadlock is likely to delay the formulation and passing of Bills, which are necessary for laying the ground for the next elections. Mutula yesterday said that the wrangling in the departmental committee on Justice and legal Affairs was hurting the process and that there was need for a speedy solution to the problem.
Worked so hard"Whereas my ministry and other stakeholders like the CIC have worked so hard to prepare the bills, the anti reform agents seem to be working over drive to forestall this process. Trust me we shall not allow them," warned Mutula.
The minister said Kenyans overwhelmingly voted for the new constitution and "it will be a sad moment if Parliament becomes the stumbling block for the implementation of the new document."
"Parliament must choose which side of history they want to belong. Either they want to be the ones who will go down into the history books for succeeding in giving Kenyans a new constitution or they want to bear the blame of denying Kenyans the document they wanted, the decision is up to them," he added.
Mutula said his ministry has produced 14 bills, which are all ready for debate, but the wrangling among members of the Justice and Legal Affairs Committee had messed things up. With time running out, the CIC also raised the red flag on hurriedly written Bills saying that there is a danger that Kenyans may end up with flawed laws despite voting for a new Constitution less than a year ago.
But Nyachae says that even though it is necessary to stick to the timelines given in the Constitution for enactment of legislation, more important is the quality of the laws that are being enacted. The Commission chairman said although there was a timeline, which they intend to adhere to, calls for speedy implementation may compromise the whole process and water down important legislation.
Anxious departments"All Government departments are anxious to develop legislation for the new Constitution. Some are rushing through the laws because of the timelines. We have to be careful not to pass bad laws," said Nyachae, while addressing advocates during the Law Society of Kenya (LSK) luncheon in Nairobi at the weekend.
He cited the Police Service Bill, which he said, had flaws when the relevant ministry submitted it.
In the last few weeks, much anxiety has been evident regarding the pace of implementation, in particular the development and passage of Bills into law. This anxiety is most greatly informed by the proximity of the first General Elections under the Constitution.
"With the General Election imminent, more needs to be done fast. The position of CIC is that firstly, the process is still on track, and we are within the timelines. I urge the country to focus on quality and content, not just timelines," said Nyachae.