Tuesday, May 17, 2011

MPs miss deadline to set up poll body

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Share/Save/Bookmark PARLIAMENT yesterday missed an agreed deadline to pass the all-important Independent Electoral & Boundaries Commission Bill. According to the revised time lines agreed by MPs, Commission for Implementation of Constitution (CIC), Kenya Law reform Commission (KLRC) and the executive, the Bill ought to have been enacted into law by yesterday Sunday 15.On Thursday and before leaving for Germany, CIC chairman Charles Nyachae told Kenyans to hold the implementing agencies to account in case any deadline is not met. He said: "We are not going to run away from the agreed deadlines."
Parliamentary sources yesterday confirmed a lot of interest is at play in the IEBC Bill hence its delay. The first point of contention is the proposed staggering principle, which essentially entails appointing part of the nine commissioners first and appointing the rest later to avoid all their terms ending at the same time.
The draft in parliament says five commissioners will be appointed first and the other four later. But the CIC has found fault with the clause as it does not guarantee the four will not be appointed the following day after appointing the first five. “Even if we are agreed on this, what would be the modalities of determining who are the first five, if indeed we have to mind the issues of gender, regional balance and all that?” a member of the parliamentary oversight committee, who sought anonymity, said.
The issue of who determines the salary for the commission is pertinent. Although the Bill recommends that the Public Service Commission tentatively handles the matter, this is in conflict with Article 234 of the constitution which excludes the PSC from dealing with matters relating to state officers.
There are also gray areas where the Bill does not make it very clear that both the selection panel - which will interview nominees for the commissioner’s posts - and the applicants as well must respect gender, regional and other diversities as well as the national values.
Most controversial is the seemingly veiled attempt to lock out the Prime Minister from the replacement of commissioners before the first election under this constitution. The Bill in parliament talks of consultation for the “first commission” and not before the “first general election.”
If the Bill is retained in its original format as presented in parliament, the PM will not be involved in replacing commissioners before the 2012 election in the event such commissioners resign, die or are disqualified.
Concerns have also been raised, more specifically by the CIC, that Clause 5 and Schedule I of the Bill does not require the appointing authorities to take into account the provisions of Article 250 (4) as read with Articles 10, 21(3), and 56.
These provisions require that in appointing members of constitutional commissions the appointing authorities must ensure that the commissions reflect gender equity, regional, ethnic and other diversities.
Another yet controversial issue is the requirement that the person to be appointed the chair ought to qualify for appointment as a judge of the High Court.
According to original Bill cleared by the CIC and the Kenya Law Reform Commission, a person for the chair should qualify for appointment as a judge of the Supreme Court; the argument being that such a person will accord high authority, stature and respect to his or her office.

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