File | NATION Commission for Implementation of the Constitution (CIC) Chairman Charles Nyachae speaking to the press in Nairobi.
By ALPHONCE SHIUNDU ashiundu@ke.nationmedia.com
Posted Thursday, February 9 2012 at 18:38
Posted Thursday, February 9 2012 at 18:38
The controversial changes made to the draft law on devolution were inserted after an agreement involving all the players in the review process.
The team spearheading the roll-out of Kenya’s 18-month-old Constitution has said that there were adequate consultations to ensure that the final Bill did not in any way subvert the dreams enshrined in Chapter Eleven of the Constitution on Devolution.
“The Commission will remain focused and steadfast in ensuring that legislation that operationalise devolution remains consistent with the letter and spirit of the Constitution thus establishing and guaranteeing devolution even in uncertain and tumultuous times,” said Mr Charles Nyachae, the chairman of the Commission for the Implementation of the Constitution.
Mr Nyachae noted that members of the Taskforce on Devolved Governments were part of the team that revised the draft Bill on county governments.
Responding to inquiries by the Daily Nation, the CIC chairman said the changes regarding the role of the governor were removed, because the team saw it as superfluous, given that all laws are subject to the Constitution.
Clause 35 (1) (i) of the original draft by the (taskforce), stated: “Subject to the Constitution, the governor shall perform such state functions within the county as the President may determine”.
The Bill as currently published in Clause 31 (2) (b) provides: “The Governor shall perform such state functions within the county as the President may determine.”
Mr Kipchumba Murkomen and Mr Paddy Onyango –who were part of the taskforce-- had said that the changes were mischievous acts of well-connected individuals to subvert the Constitution. The duo had gone ahead to term the changes as “unconstitutional”.
“The difference in the two Clauses is the omission of the phrase 'Subject to the Constitution'.The decision to omit the phrase was arrived at through consultations. For the simple reason that all legislation are ultimately subject to the constitution and it does not add any value to keep repeating this phrase in all provisions as subjectivity of the law to the constitution is obvious,” said Mr Nyachae in a dispatch to newsrooms Thursday evening.
The CIC chairman also said that the accusation that the role of village elders had been dropped from the original draft was made to keep politicians away from citizens’ space.
“This was removed as it was deemed the forums ran the risk of being politicized. It was replaced by an obligation to the county governments to provide platforms of citizen participation in all decentralized units,” said Mr Nyachae.
The bane of the disgruntled taskforce duo is that getting rid of elders at the village level and giving the county authorities the leeway to “provide platforms for public participation” was akin to denying the people from raising their issues at the grassroots.
Mr Murkomen, in particular, said that the county authorities would be reluctant to engage the public exhaustively in cases where the public is hostile against some projects or legislative proposals in the counties.
But Mr Nyachae said the team that went through the Bill gave the counties the responsibility to make laws for further sub-units as they saw fit to deliver services as close to the people as possible.
The CIC chairman added that the changes passed the constitutional threshold and should be allowed to stand. Nonetheless, he said, Kenyans were free to lobby their MPs to make changes as they saw fit.
He added: “CIC encourages Kenyans to read and internalize the Constitution and the subsequent legislations that operationalise the Constitution and to remain vigilant in ensuring that it is upheld, protected and defended, at all levels and at all times”
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