Three weeks after the new Constitution came into effect, there is a growing perception that the Executive could be running away with its implementation without involving the people and their representatives.
On Saturday, The Standard On Sunday learnt that some key people in Government were apprehensive over the manner of the ongoing implementation and had raised the red flag. And it also appears that Cabinet ministers from the coalition divide are in sharp disagreement, despite personal efforts by the two principals to maintain the unity and momentum witnessed during the referendum campaigns.
Prime Minister Raila Odinga says the (House) select committee shall be responsible for overseeing the implementation of this Constitution.
The point of departure is a perception that some section of the coalition was already going full throttle to put into effect the new Constitution, ignoring provisions of the Constitution and certain other parties that should be involved.
One such issue is that of preparation of proposed legislation, popularly known as Bills, which are then tabled in Parliament for enactment.
So far, Justice Minister Mutula Kilonzo — working with the State Law Office — has already churned out three Bills, which are to be tabled in Parliament when it resumes sittings in less than two weeks.
At the same time, the Internal Security ministry under Prof George Saitoti has moved with lightning speed to unilaterally restructure the make-up of the much-maligned Provincial Administration.
Lands Minister James Orengo, in a communication obtained by The Standard On Sunday, cautions that the "preparation and tabling of Bills require the substantive participation of the Parliamentary Select Committee and the Commission for the Implementation of the Constitution".
Orengo, who sits in the Cabinet Sub-Committee on the Implementation of the Constitution, says the role of the two bodies go beyond legislative or quasi-legislative functions, and cites Article 4 which states thus:
"There shall be a select committee of the National Assembly known as the Constitutional Implementation Oversight Committee which shall be responsible for overseeing the implementation of this Constitution".
The three Bills already published without the input of the parliamentary body are the Commission on Implementation of the new Constitution, the vetting of judges Bill and the Judicial Service Bill.
Yet the genesis of this problem may have been sanctioned by the Cabinet, the Executive’s top decision-making organ.
Sources told The Standard On Sunday that the Cabinet met last month and agreed that the process of implementation be fast-tracked without necessarily waiting for the setting up of the Implementation Commission.
Consequently, the Internal Security ministry also moved with speed to begin the process of restructuring the Provincial Administration.
The Justice Minister also asked the Interim Independent Boundaries Review Commission to stop incurring further expenditure, prepare its final report and leave the rest of the work to its successor.
Despite the fact that the Cabinet sub-committee has endorsed Mutula’s Bills, Orengo has raised very weight issues about the ongoing process.
In the letter to other members of the sub-committee last week, Orengo cautioned that the people owned the Constitution and the implementation should therefore not be yanked from the people.
The seven-page letter was copied to Mutula (Justice), Mr Moses Wetangula (Foreign Affairs), Mr Otieno Kajwang’ (Immigration), Mr Robinson Githae (Nairobi Metropolitan), Mr Amason Kingi (Fisheries), Mr Kiraitu Murungi (Energy) and Mr Amos Wako (AG).
Participation of PSC
In the letter, Orengo quoted relevant articles in the Sixth Schedule of the new Constitution that relate to the implementation of the new laws.
"My reading and interpretation of the Constitution is that both the preparation and tabling of Bills require the substantive participation of the PSC and the Commission on the Implementation of the Constitution".
Both are yet to be constituted although Mutula has published a Bill for Parliament to establish the Commission next month.
The Cabinet has undertaken most of the work already done but in his letter, Orengo argued that Parliament’s role was key.
He cited article 261 (1), which states that Parliament must enact legislation required by the Constitution commencing on the effective (promulgation) date.
He pointed out that the role of the Attorney-General was auxiliary and secondary and that he was only expected to help Parliament enact legislation.
"In my view, there is need for thorough discussions on the process on initiation of legislation and administrative reforms within Government to make sure we do not hijack a role that really belongs to the people," he said.
He asked the Cabinet sub-committee to create concordance (agreement) within government "at this critical stage" of creating a new democratic constitutional order. The administrative reforms referred to by Orengo include the restructuring of the Provincial Administration.
Prof Saitoti’s Internal Security ministry has produced a blueprint of how the new administrative units would be restructured.
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