File | NATION Commission for Implementation of the Constitution (CIC) Chairman Charles Nyachae speaking to the press in Nairobi on December 22.
By ALPHONCE SHIUNDU ashiundu@ke.nationmedia.com
Posted Thursday, December 29 2011 at 22:00
Posted Thursday, December 29 2011 at 22:00
IN SUMMARY
- Most of those who agree with the com-mission are in the civil society and the public since it speaks the language of reform
The public spat between the chairman of the Commission for the Implementation of the Constitution, Mr Charles Nyachae, and the Attorney General Githu Muigai, just days to Christmas, was a culmination of a year that the CIC boss was perceived to be taking on anyone who didn’t want to comply with the Constitution in both letter and spirit.
Mr Nyachae and his eight colleagues took oath of office on January 4, 2011. Ever since, they have been on a warpath with MPs, the State Law Office and the Cabinet over the laws to rollout the Constitution.
The commission has had a tough time trying to assert its relevance as stipulated in the Constitution, more so, regarding the procedure of processing Bills. The recurrent tiff with government agencies has exposed runaway impunity within the Executive and in the House.
Essentially, the role of the commission has been about teaching an old dog new tricks. That’s a tricky and messy process, which has sired a rather significant proclamation by the Attorney General that the old way of doing things is here to stay, unless the Constitution demands otherwise.
Friends and foes
In the course of his duty, Mr Nyachae has attracted friends and foes in equal measure. Most of those who agree with him are in the civil society and the public. He speaks the language of reform and acts as a reformist.
On the other hand, many politicians and government officials don’t like him. Mr Nyachae has denounced their pronouncements as unconstitutional. He reads the law and interprets it.
He said MPs should not hold political party offices, because that’s what the Constitution says. He told off MPs for agitating for a shift on the election date to any date other than the second Tuesday of August as stipulated in the Constitution.
Some MPs have asked him to shut up and “stop interpreting the Constitution”. Others have labelled him a “third principal”, while others question Mr Nyachae’s powers to be the “chief interpreter of the Constitution.”
The commission has condemned the Cabinet collectively for “blatant violations” of the country’s 16-month-old Constitution. Cases of impunity and misinterpretation of the Constitution have worsened, the CIC said of the Executive in its third quarterly report.
For example, while the commission together with the former Attorney General Amos Wako toiled to ensure that all the laws to enact the Constitution were in place before the expiry of the one-year constitutional deadline in August, the Cabinet and Parliament defied the commission and enacted two laws without input from the CIC.
Though the relationship between Mr Wako and the commission was one of mutual suspicion and frequent attacks, the results of their work are there for all to see.
The commission, having failed to stop the Cabinet and the MPs, then challenged the legality of the two Bills — Contingencies Fund and County Emergency Funds Bill and two, the National Government Loans Guarantee Bill — at the High Court. Nonetheless, the House approved the Bills and sent them to the President for assent. The Bills are now law.
Just as the country entered the Festive Week, the commission expressed its frustrations with the way the new AG, Prof Muigai, was handling the process of making laws. The CIC was particularly piqued that the AG was not reading the Constitution.
The issue was that the Judicature (amendment) Bill had been introduced in Parliament without input from the crucial constitutional commission.
According to the law, the AG together with the Kenya Law Reform Commission, have to draft the laws, then present the draft laws to the CIC for a review of their constitutionality.
Once this is done, then the commission has to “coordinate” with the Attorney General to ensure that the Bills are tabled in the House. After that, the CIC has to monitor the Bills to ensure that they are enacted.
What happened in the Judicature (Amendment) Bill — seeking to raise the number of judges of the Court of Appeal from 14 to 30, and that of High Court judges from 75 to 150 — exposes the crux of the problem that has been dogging the commission.
The Judiciary sent the requirements to the Ministry of Justice. The Ministry of Justice liaised with the AG to ensure the new laws were drafted and after that, the Bill was published in the Kenya Gazette and consequently tabled in Parliament.
To Prof Muigai, nothing was unusual. The CIC wasn’t going to add any value to the Bill and so, it could be ignored.
The AG said his office had the duty to draft the laws “in consultation” with the CIC, and that to that end, the work of the commission was just “advisory”, meaning that the advice can be taken on board, or rejected at will. Prof Muigai said he didn’t answer to the CIC and therefore the CIC had no role trying to supervise him.
Attorney-General
But according to Mr Nyachae, who speaks for the commission, the CIC has to look at all Bills that touch on the rollout of Kenya’s new governance regime. He looked at the Attorney General as one who had given away his powers to advise the government on matters to do with the Constitution.
“Section 5 (6) of the Sixth Schedule says that the functions of the commission is to monitor, facilitate and oversee the development of legislation and administrative procedures required to implement this Constitution,” Mr Nyachae told the Nation as the controversy raged.The CIC boss said there were deep-rooted anti-reform forces in government that were out to sideline the commission and frustrate the realisation of the visions enshrined in the Constitution.
The CIC chairman argued that the framers of the Constitution knew that “it is not the AG who decides what role he’s going to assign to the CIC. We already have that mandate in the Constitution. This is not about turf wars. Anyone who speaks about turf wars is throwing a red herring. There are things the Executive finds inconvenient to implement, and that’s why they want to overlook the CIC. They’re subverting the Constitution”.
That suspicion and mistrust in the writing of the Constitution has been crucial in keeping the MPs, the Cabinet and the Executive on the straight and narrow.
In the quarterly reports to Parliament and to the President and the Prime Minister about the status of the implementation, the CIC has spared no one.
It has been hard-hitting in its criticism one after another on anyone who fails to deliver on whatever promise they make to the commission.
The AG will naturally be on the cross hairs of the commission. But after a similar public tiff with Mr Wako, things worked amazingly well.
The Minister for Justice, Mr Mutula Kilonzo, has also had his day on the wrong side of the CIC. The Cabinet, as a collective body has also been slammed.
The military too, has been questioned by the CIC for keeping mum on whatever measures it had put in place to ensure that there was no violation of the Constitution when it came to recruitment of women in the Kenya Defence Forces.
The commission has also raised red flags on the potential land mines when it comes to rolling out the new governance regime.
“Devolution is emerging as the tool and instrument to tame and slow and, probably, ultimately kill the Constitution. Kenyans now need to seriously monitor devolution if they have to reap the benefits of the Constitution fully,” the CIC cautioned in its third quarterly report in October.
As the commission marks one year in office next year, the vigilance on the implementation process will continue.
Expect more from Mr Nyachae and the Octet of commissioners as they fight the anti-reformists in government.
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