FILE| NATION The chairman of the Commission for the Implementation of the Constitution Charles Nyachae (right) has accused Attorney-General Amos Wako (left) of refusing to give the Independent Electoral and Boundaries Commission Bill to his team for scrutiny before it goes to the President for approval.
By MUGUMO MUNENE, mmunene@ke.nationmedia.com
Posted Saturday, July 2 2011 at 20:08
Posted Saturday, July 2 2011 at 20:08
The committee charged with overseeing the implementation of the Constitution has raised the red flag over the secrecy surrounding the writing of the law to help the country prepare for next year’s elections.
It is complaining about the shadowy manner in which Attorney-General Amos Wako and the Clerk of the National Assembly Patrick Gichohi have handled the Bill since it was passed by Parliament and warns that it could create serious problems ahead of next year’s vote.
The Commission for Implementation of the Constitution (CIC) says in a letter to the State Law Office that Mr Wako was behaving in a manner likely to delay the formation of the Independent Electoral Boundaries Commission that is to conduct next year’s elections.
(Also see CIC says Kenya AG should go home)
CIC chairman Charles Nyachae cautions that the secretive manner in which the AG’s office has handled the Bill could result in the President assenting to a Bill with errors and which could attract a court case that might delay establishment of a boundaries and elections team and in effect derail the next elections.
“In the specific case of the IEBC Bill, there is even greater concern when this latest development comes after a prolonged and inexplicable delay in the preparation of the final Bill for presidential assent.
It does little to dispel the concern regarding the possibility of a deliberate ploy to delay or derail the process,” Mr Nyachae warns.
The letter is the latest salvo from the CIC, which is increasingly impatient with Mr Wako’s treatement of the new Constitution.
The IEBC Bill is crucial because it holds the key to the formation of the commission that will determine the 80 new constituencies created by the new Constitution as well as prepare and manage next year’s elections.
The matter of boundaries has particularly attracted emotional political debate because MPs view it as adding or subtracting political advantage depending on how the new boundaries will affect their constituencies.
It is no secret that major political players want strong representation on the IEBC to secure their personal and political interests and probably draw advantages over rivals once the new boundaries are drawn up.
The preparation of the Bill, which now awaits presidential assent, was fraught with emotional debate even before it got to the floor of the House where it attracted a large number of amendments.
The CIC asked to scrutinise the Bill and point out possible errors before it is signed into law by President Kibaki, but the AG’s office seems to have declined.
On Friday, Mr Nyachae wrote to Mr Wako saying the position taken by the AG had no basis in law and “constitutes an act of impunity”.
The letter is copied to the Head of Civil Service and Secretary to the Cabinet Francis Muthaura who has been asked to bring the issue to the President’s attention.
In the letter, Mr Nyachae says that on Friday he had a telephone conversation with Margaret Nzioka, the chief parliamentary counsel at the AG’s office, who informed him that the Bill had been sent to the Government Printer who would, Mr Nyachae was told, would prepare copies for signature by the President.
It was then that Mr Nyachae requested that the CIC be allowed to see the Bill before it is forwarded to the President.
“To my complete consternation, Mrs Nzioka informed me that the AG would not give a copy of the said Bill to the CIC until after it had received presidential assent.
Mrs Nzioka informed me that was the agreed position between the AG and the Clerk to the National Assembly,” Mr Nyachae said in his letter.
But Mr Gichohi said Parliament had played its part and passed the baton in keeping with Standing Order 125.
“Where does the Clerk come in on this issue? I passed the Bill to the AG as it was passed by the House, and that is my duty. Whatever he does with the Bill … that is his responsibility. It is out of Parliament,” he told the Sunday Nation.
Mr Nyachae said he did not understand how the Bill could be treated as a secret and kept from his team which has the authority to oversee the implementation of the new Constitutiuon.
On Friday evening, Mr Nyachae raised the matter informally with Mr Wako when the two met at a reception hosted for new Chief Justice Willy Mutunga by the Law Society of Kenya.
Mr Nyachae told the Sunday Nation that Mr Wako appeared to support Mrs Nzioka’s position that the CIC may not see the final Bill.
“But I told him that we have to do things differently now because this is a new constitutional dispensation,” Mr Nyachae said.
On Wednesday, Mr Wako deflected the blame directed at his office for the delay in presenting the Bill to the President.
“The delay is as a result of procedural steps between Parliament and the AG’s office before a Bill gets signed to become law,” the State Law Office said.
Mr Wako said that even though Parliament approved the Bill on May 31, it was not until June 15 that the National Assembly forwarded it for him for final touches and to present it to the President.
Upon receipt of the Bill and Hansard records of the proceedings prior to the Third Reading, Mr Wako said, he spent seven days going through the documents and had thus finalised his bit.
He said he submitted the Bill to Parliament for approval on June 21. “This was particularly crucial as the Bill had been extensively amended before passage.”
Certify copy
“It is also the procedure that before a Bill is presented for assent, the Clerk must certify it as a true copy of the Bill as passed by the National Assembly,” the AG said in a statement signed by Dominic Onyango, the public relations officer at the State Law Office.
The clash between CIC and the AG’s office comes in the wake of reports that a drafting blunder in the Independent Electoral and Boundaries Commission Bill, 2011, is responsible for the delay in having the Bill assented to.
Mr Gichohi said the AG’s office had sought a clarification about the constitutionality of one of the clauses, but because the House had approved the Bill, the legal office at Parliament and even the AG’s office did not have the authority to alter it.
“We have verified that the Bill was in the form that it was passed in Parliament and sent a certified copy back to the Attorney-General (for onward transmission to the President),” Mr Gichohi said on Thursday.
However, a source familiar with the drafting process both in the House and in the State Law Office — who cannot be named because of internal red-tape in the two offices —cited clause 19 of the IEBC Bill as the contentious one.
The unconstitutionality of the clause apparently arose after Justice minister Mutula Kilonzo altered the draft Bill to allow the Salaries and Remuneration Commission to “determine” the pay and perks of the employees of the commission.
The Constitution stipulates that the work of the yet-to-be formed Salaries and Remuneration Commission would be limited to State Officers, and should not include employees of the independent commission.
“That clause ought to be altered to conform to the Constitution, such that the work of the Salaries and Remuneration Commission regarding the IEBC employees would be strictly advisory as per article 230(4)(b),” the source said.
The article reads: “The powers and functions of the Salaries and Remuneration Commission shall be to— (a) set and regularly review
the remuneration and benefits of all State officers; and (b) advise the national and county governments on the remuneration and benefits of all other public officers.”
Earlier in the week, Mr Nyachae asked Mr Wako to pack up and go home, accusing him of being an impediment to the implementation
of the new Constitution.
Public interest
Mr Nyachae said Mr Wako’s recent activities were not in the interest of the public as required by Article 156 of the Constitution.
The Article requires the AG to “promote, protect and uphold the rule of law and defend public interests.”
The Article requires the AG to “promote, protect and uphold the rule of law and defend public interests.”
“The AG should have left immediately we enacted a new Constitution.
The only value of him staying on for a year was to assist in its implementation but now that he has become an impediment one finds it difficult to tell why he should continue in office,” said Mr Nyachae. The Justice minister supported the CIC chairman.“(Mr) Nyachae’s position has justification. It is the responsibility of the AG to follow up on Bills passed by Parliament for processing.
I have no idea a Bill passed a month ago could still be at Parliament.”Mr Kilonzo also blamed the delay on wrangles in the Justice and Legal Affairs Committee.
ODM withdrew its members from the committee after a motion of no confidence was passed on Mr Ababu Namwamba, the committee chairman.
The minister said that were it in place, the committee would be the best-suited to monitor the Bill.
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