Is Nyachae next target after PLO Lumumba?

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By Juma Kwayera

"Mr Charles Nyachae should not think he is the headmaster of Kenya". This was an indictment by MPs of the Commission for Implementation of the Constitution chairman on the day Parliament passed the Ethics and Anti-Corruption Commission Bill into law.

In the Ethics and Anti-Corruption Commission, Parliament found an effective tool to tame the director of the now defunct Kenya Anti-Corruption Commission (Kacc) PLO Lumumba.

As Lumumba and his subordinates were technically hounded out of office, Parliament’s next target before proceeding on recess in late August was Nyachae, who had criticised the President, Cabinet, and MPs for attempting to water down the new laws through piecemeal amendments.

There are now fears Parliament and a section of the Executive plot to clip his powers, hence the derogatory reference "the headmaster of Kenya".

CIC chairman Charles Nyachae is on the receiving end over his stand on progress of implementation. Photo: File/Standard

Gwasi MP John Mbadi concedes the relationship between Parliament and CIC is seesaw, support the commission’s quest to get things right.

Mbadi, a member of the parliamentary Constitutional Implementation Oversight Committee (CIOC), says the commission is within its mandate when it raises questions on implementation.

"There is nothing wrong for CIC to make its stand known. The people created the commission to oversee implementation of the Constitution because they did not trust the ruling elite to do it. Most of the issues CIC is raising lie with the office of the AG and the State Law Office. Nyachae is right to complain when he feels CIC is not being consulted," says Mbadi.

Early in the year, Nyachae incensed the Executive when he criticised the President for irregularly nominating Chief Justice, Attorney General and Director of Public Prosecutions without consulting Prime Minister Raila Odinga as provided for in the Constitution.

Nyachae has robustly opposed attempts to amend the Elections Act, to which the Cabinet has proposed changing the polling date from the second Tuesday of August to third Monday of December of every election year.

The CIC chair took issue with the Cabinet, accusing it of attempting to mutilate the Constitution before it is fully implemented.

According to Mbadi, the excuses cited by Cabinet are peripheral to the central concern to have the Constitution fully implemented before the next polls.

"They are right in their opposition to amending the election date. The reasons are minor and can be dealt with even in less than a month to the election date," he says.

In its third quarterly report released last month, CIC criticised Parliament for allegedly seeking short cuts in implementation.

In the report, Nyachae observes: "Unfortunately, cases of impunity and misinterpretation of the Constitution reported in the second quarter report have worsened. This quarter witnessed blatant violation of the Constitution through enactment of unconstitutional laws, as well as proposals to change the date of the election through an amendment of the Constitution."

The CIC chair, who has carved an image of a stickler for constitutionalism and due process, now finds himself at the wrong end of the stick for his persistent criticism of Parliament, the State Law Office, the Cabinet and the Justice ministry.

Besides the polling date, Parliament, without reference to CIC as required by the implementation procedures, sidestepped the commission constitutionally mandated to monitor the process by seeking to amend a provision that would have ensured gender parity in elective positions.

Popularly known us the ‘one-third gender rule’, the Constitution provides that composition of public offices, including Parliament and civic bodies, should have more than two-thirds of either gender.

The Cabinet, with the support the male-dominated Parliament, wants the provision either suspended or amended, citing difficulties in achieving what it sets out to do.

Consequently, there have been suggestions of creation of special seats to achieve the one-third threshold.

Altering laws

While Nyachae agrees some sections of the Constitution need amendments to align them with prevailing social, cultural, economic and political realities, he has been critical of the State Law Office, Parliament and the Justice ministry for clandestinely altering the Constitution.

Before Parliament went on recess, it set precedence by passing 11 Bills to meet the deadlines provided in the Fifth Schedule, without which the House would have been dissolved.

When Parliament resumed on Tuesday, CIC was somehow vindicated as Garsen MP Danson Mungatana and Gichugu MP Martha Karua stunned the House when they pointed out serious errors in the election law introduced after the Bill was passed.

Some MPs blame the AG, State Law Office and the Law Reform Commission, which generate the laws for debate in Parliament.

It is noteworthy the 11 Bills hurriedly passed were scarcely scrutinised as MPs threatened to stall implementation, which ran out of pace even as legislators pushed to be exempted from paying taxes.

However, the embarrassing errors did not stop Government chief legal advisor AG Githui Muigai and Justice Minister Mutula Kilonzo from admonishing Nyachae.

Prof Muigai was enraged that Nyachae and CIC had usurped the mandate of the Supreme Court of interpreting the Constitution.

"I am concerned that the CIC appears to have arrogated to itself the role of the interpretation of the law in general and the Constitution in particular, which role is vested in the Supreme Court; the role of legal advisor to the Government, which is vested in the Attorney General, and the role of drafting legislation which is vested in the Kenya Law Reform Commission and the Attorney General’s Department of Legislative Drafting," Muigai said as the standoff between CIC and Parliament deepened.

This was in reaction to the CIC report in which the chair observes: "CIC notes that it may be necessary to amend the Constitution in some cases, but such amendments need careful consideration and proper justification as well as be based on broad consultations."

He adds: "CIC will, however, therefore take all necessary measures to ensure the rights granted to the people of Kenya in the Constitution are not taken away through unjustifiable constitutional amendments."

As Parliament resumed on Tuesday, Nyachae faces the risk of being reduced to spectator. However, Mbadi says CIC cannot be disbanded, unless through a constitutional amendment, which he says cannot easily sail through Parliament.

Nyachae finds himself at loggerheads with virtually all institutions charged with implementation of the Constitution. Only the civil society has walked with him, with religious organisations showing ambivalence.