Wednesday, August 10, 2011

How new laws were broken ‘18 times’

By Martin Mutua
The rush to pass key laws and beat the crucial August 27 deadline began in earnest after the Cabinet cleared four Bills crucial to implementing the new Constitution.
The move came even as The Standard established that Parliament and the Executive have acted contrary to the new Constitution by failing to meet key deadlines for the passing of laws and swearing in of key officials critical to its implementation.
The four Bills cleared by Cabinet Tuesday are among pending legislation the Constitution demands must be in place within one year after the promulgation of the new laws to facilitate their implementation. That date is just 17 days away.
A Cabinet meeting chaired by President Kibaki approved the National Police Service Bill 2011, National Police Service Commission Bill 2011, Independent Policing Oversight Authority Bill 2011, and the Employment and Labour Relations Court Bill 2011.
According to a statement sent to the newsroom by the Presidential Press Service (PPS), the Cabinet meeting also resolved that no maize from genetically modified organisms (GMOs) had been imported.
President Kibaki chairs a past Cabinet meeting. Cabinet Tuesday endorsed four Bills crucial to implementation of the new Constitution.  [PHOTO: FILE/STANDARD]
“Cabinet, therefore, directed the Minister for Higher Education, Science and Technology to prepare a technical report on the concerns expressed on GMO food,” noted the statement.
It adds: “The report should outline the needs of the country and requirements necessary to enhance the national capacity to test and determine any risks that may be associated with GMO foods.”
But other equally important Bills are yet to reach the Cabinet and both Parliament and the Government are now on the spot over the implementation of the new Constitution.
However with about two weeks to go and the deadline for enactment of some of the laws still hanging in the balance, Parliament and the Government are being accused of having violated the new documents 21 times.
Critical Component
Supreme Court Judge Njoki Ndung’u raised the red flag over the weekend, when she pointed out that the House had violated the new Constitution 18 times.
Njoki, who was addressing a conference for MPs organised by the Ministry of Gender at the Continental Hotel in Mombasa, said she had so far counted 18 violations, and that she was still counting.
But further investigations by The Standard revealed the violations had actually occurred 21 times, and the number could still rise.
According to the transitional clauses in the new Constitution, Parliament is required to have enacted several Bills by August 27, although the courts have the authority to extend the timeline.
According to the new Constitution, Parliament must in the next 17 days pass Bills regarding citizenship, which has the critical component on dual citizenship.
However, the Bill is yet to be approved by the Cabinet for debate in the House.
Another is the Kenya National Human Rights and Equality Commission (KNREC) Bill, which is still at its second reading in the House. There has been a standoff on whether to split the commission or just maintain one.
Three other Bills – Kenya Human Rights Commission Bill, Gender Commission Bill, and Ombudsman Bill – were also listed in Parliament’s order paper yesterday, as awaiting debate and enactment.
At the same time, Bills on ethics and anti-corruption, which also have to be debated by the end of this month, are yet to surface in the House for the first reading.
The same applies to the Bill on urban areas that will enable the Independent Electoral and Boundaries Commission (IEBC) to execute its mandate.
The Bills have not even been forwarded to the Commission on Implementation of the Constitution (CIC), and it is not known when they would reach the Cabinet for approval.
The appointments of the new Attorney General and Auditor General are also shrouded in mystery, as the President Kibaki and Prime Minister Raila Odinga have maintained a studious silence.
The current Attorney General Amos Wako is supposed to vacate office in the next 21 days, according to the new Constitution. 
It was expected that by now the two principals would have made known their choice for the occupant of the position.
In the same spirit and letter of the new Constitution, the appointment of the seven Supreme Court judges is still pending after the High Court stopped their swearing-in, although Kibaki had gazetted their appointments.
According to the new laws, the Supreme Court is supposed to be in place by the end of this month.Sources told The Standard that the Schedule Six of the Constitution has largely been misinterpreted or ignored.
The first such fault occurred with the appointment of the Judicial Service Commission, which was not done within the stipulated time.
The new Constitution says the JSC was supposed to be appointed within 60 days after the promulgation of the new laws, but that was not done.
The commission, which is headed by Chief Justice Willy Mutunga, was appointed before the enabling JSC Act was passed.
The same case applied to the Commission on Revenue Allocation (CRA) headed by former Central Bank of Kenya Governor Micah Cheserem. He was also appointed before a CRA Bill was passed. The Bill has not even come to the House for debate.
Moving resources
The constitutional requirement is that all commissions must be set up under an Act of Parliament, and not the other way round.
And members of the CRA were appointed by members of Parliament, and not by the 11 political parties in Parliament as stipulated by the Constitution.
Letters should have come from party National Executive Council’s and secretary-generals and not MPs. Another glaring violation was that the Chief Justice Willy Mutunga, who was appointed in June, should have been appointed on February 28, when the former Chief Justice Evan Gicheru retired as stipulated in the Constitution.
Also having been violated is the formation of the Salaries and Remuneration Commission, which ought to have been place by May 2011.
But to date the Bill that would give it the legal mechanism has stalled in the House after the President declined to assent due to a missing clause.
And whereas the 47 counties have not been set up so far as required by the Constitution, Members of Parliament are being accused of attempting to budget for them.
MPs are also being accused of attempting to revise the Budget by moving resources from one line item to another.  This flouts separation of powers between the Executive and the Legislature.
A judge of the Court of Appeal who spoke on condition of anonymity also accused the House Speaker Kenneth Marende of violating the Constitution by interpreting the new laws whereas he no longer has powers to do so. Only the High Court can interpret laws.
Another contentious matter is the appointment of the selection panel to appoint the Independent Electoral and Boundaries Commission (IEBC), and includes JSC members and representatives of the private sector and the KACC advisory board.
This being an executive appointment, it is argued that Parliament should not have directed that members of the Judiciary or persons not appointed by the principals be involved.
Another violation is with regard to the IEBC Bill, after Parliament decided the controversial Ligale Commission report on the 80 new constituencies be the primary reference for the incoming IEBC.
Parliament is also said to have directed that the IEBC take recommendations from MPs before publishing its final report, which is a violation of the body’s independence as stipulated in Article 88 and 89 of the Constitution, as well as an attempt to return to the old Constitution with regard to delimitation.
Title deeds
Other violations are with regard to legislation on devolution under Section 15 of schedule 6.
Although Chapters 7,8, and 9 have been suspended until the next General Election, some sections have been implemented. For instance, Parliament had a special session attended by the President, which does not apply to this Parliament but the next.
Also, the Ministry of Lands has not yet issued title deeds converting the 999-year leases as stipulated under Section 8 of Schedule Six in the Constitution.
Additional reporting by Moses Njagih

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