File | NATION Chairman of the Constitutional Implementation Committee Charles Nyachae stresses a point during a past interview. He gave the pace of the implementation process an impressive score of seven out of 10.
By KIPCHUMBA SOME ksome@nationmedia.co.ke
Posted Saturday, August 20 2011 at 22:00
Posted Saturday, August 20 2011 at 22:00
IN SUMMARY
- Chairman of the implementation commission also lauds the public’s vigilance and faith in the process
On a scale of one to 10, the chairman of the Constitutional Implementation Commission, Mr Charles Nyachae, gives the process he is instituting an impressive seven.
Mr Nyachae’s commission is charged with ensuring that the law that was passed last August is enacted on time and remains true to the aspirations of Kenyans.
Despite occasional anxiety that the implementation process is being delayed or hijacked by anti-reformists, his is definitely a reassuring vote of confidence.
So who takes the credit?
“Everyone involved in the process,” he says. “But most of all, the general public. The public has been amazingly vigilant and shown unflagging faith in this process.”
Far from perfect
So who is to blame for the loss of the three marks?
“Some of the implementing partners have sometimes not delivered on time,” he said. “Their modes of operation have sometimes dragged the process back.”
The implementing partners he has in mind include the Executive, Parliament, the Judiciary and the government ministries that originate the draft Bills his commission fine-tunes.
Although he insists that the Executive has given them support, he notes that they (the Executive) are yet to fully understand and appreciate the mandate and independence of his commission.
He cites President Kibaki’s controversial decision to appoint new judicial officers four months ago as a perfect example of the Executive trying to exercise powers they no longer enjoyed.
“We were not antagonising the President but simply asserting the supremacy of the law,” he says.
Under intense criticism, President Kibaki withdrew the nominations, giving way to constitutional due process.
Another issue he has had with the Executive concerns their changing of the wording of certain Bills.
“Their role is to advise not redraft the bills,” he says.
MPs have also on several occasions accused his team of overstepping their mandate and usurping Parliament’s powers.
To this he says, “sometimes when you talk to MPs, you get the impression that they think they are above the Constitution. And when we try to assert the supremacy of the new law, they lament that we are encroaching on their territory.”
The CIC has in the past blamed the office of the attorney-general for delaying the passing of Bills forwarded to them. Mr Nyachae thinks this is a hangover from the old way of doing things.
Own pace
“I think due to being accustomed to doing things at their own pace, the AG’s office did not see the urgency we were calling for,” he says, adding that things are improving.
Despite the optimism, his team is in a race to beat tight deadlines. As per the Constitution, more than 20 bills ought to have been passed by August 27. Mr Nyachae is optimistic they will be passed on time. He, however, has reservations about the Public Finance Management Bill.
According to Mr Nyachae, the passing of the Bill has been bogged down by a lack of harmony in its approach between Treasury, the ministry of Local Government and the commission for devolved governments.
“We simply don’t have answers for this and can only hope for the best.”
A meeting convened by the President and Prime Minister Raila Odinga this week failed to break the deadlock.
Another more intractable problem concerns the contentious one-third gender rule.
This week, Cabinet concluded that the rule is impractical to implement, sparking fierce criticism from gender activists.
“We cannot disagree with Cabinet because we have not come up with better solutions,” said Mr Nyachae. “It is contentious from whichever angle you look at it since sections of it seem to contradict each other.”
In an attempt to address the historical gender inequalities, part two of the Bill of Rights, section 27 (8) states “the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.”
Trigger lawsuits
However, this provision contravenes other sections of the Bill of Rights.
“That provision could be challenged in court and we fear that it could trigger other lawsuits challenging provisions and we do not want this,” he said.
He added that the contradiction can only be resolved by subjecting the clause to a referendum, an option he does not support.
“It is too early to be going for referendums before the laws are even implemented,” he said.
Alternatively, he said, Parliament can amend section 81 (B) of the chapter on Representation and remove the one-third gender requirement for elective posts.
He added that the CIC was uncomfortable with the proposal by the Interim Independent Electoral Commission to randomly select constituencies that would elect women representatives.
Asked if the timelines provided in the Fifth Schedule were ambitious, he said, “not necessarily”.
“It would have been unfair to expect Kenyans to wait longer to realise the promise of the laws.”
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