BY SIMEON NYACHAE
The new constitution was presented to the Attorney-General on April 7, 2010, officially published on May 6 and subjected to a referendum on August 4. It was approved by 67 per cent of Kenyan voters, and consequently promulgated on August of the same year, a day that will forever remain etched in the minds and hearts of Kenyans. It will be five years old this August.
On January 4, 2011, another important milestone was attained – the swearing in of the nine members of the Commission for the Implementation of Constitution (CIC), a body established under Section 5 (6) of the Sixth Schedule, and whose mandate includes monitoring, facilitating and overseeing the development of legislation and administrative procedures required to implement this Constitution; coordinating with the Attorney-General and the Kenya Law Reform Commission in preparing for tabling in Parliament, the legislation required to implement this Constitution; and reporting every three (3) months to the Constitutional Implementation Oversight Committee on progress in the implementation of this Constitution and any impediments to implementation. CIC’s other functions were to work with constitutional commissions to ensure that the letter and spirit of this Constitution is respected, and exercise such other functions as are provided for by the constitution, or any other written law.
The mandate of CIC is further amplified by Article 249 (1), which spells out the objects of the mandate of CIC enumerated above. Section 15 (2) (d) enhances these functions with the empowerment of Parliament, by legislation, to provide mechanisms that ensure that the Commission can perform its role in monitoring the implementation of the system of devolved government effectively. This, they have managed to do.
But with an executive hell bent on undermining devolution, the CIC must ensure that all the devolved functions that have not been fully devolved, like the assigning of Rural Roads to the care of county governments.
CIC is obliged to carry out the above functions with the ultimate aim of achieving the objects of the constitutional commissions and the independent offices stated in Article 249 (1). These include protecting the sovereignty of the people, securing the observance by all State organs of the democratic values and principles, as well as promoting constitutionalism. In a nutshell, the core functions of the CIC, as spelt out in the Sixth Schedule, were to ensure implementation of the constitution, protect it and promote a sense of constitutionalism.
This brings me to the question: how has CIC fared in delivering on its mandate? By way of answer, I will look at the thematic areas that CIC was supposed to work on, and the number of legislations that have been passed in each.
Bill of Rights and Citizenship
Passed as law: Marriage Act, 2014; Matrimonial Property Act, 2013; Kenya Citizens and Foreign Nationals Management Service Act, 2011; National Gender and Equality Commission Act, 2011; Kenya Citizenship and Immigration Act, 2011; Kenya National Commission on Human Rights Act, 2011; Consumer Protection Act, 2012; Protection Against Domestic Violence Act, 2013; Treaty Making and Ratification Act, 2012.
Pending: Child Justice Bill, 2014; Children Act (Amendment), 2014; Health Act, 2014; Persons With Disabilities (Amendment) Act, 2013; Victim Protection Act, 2014; Access to Information Act, 2013; National Registration and Identification Act, 2012; Refugee Act, 2012; Data Protection Act, 2012.
Passed: County Governments Public Finance Management Transition Act, 2013; Urban Areas and Cities Act, 2011; Contingencies Fund and County Emergency Funds Act, 2011; County Governments Act, 2012; Transition to Devolved Government Act 2012; Intergovernmental Relations Act, 2012.
Judiciary & Constitutional Commissions
Passed: Petition to Parliament (Procedure) Act, 2012; Industrial Court Act, 2011; Vetting of Judges and Magistrates (Amendment) Act, 2011; Judicial Service Act, 2011; Kenya Law Reform Commission Act, 2013; Commission on Administrative Justice Act, 2011.
Pending: Legal Aid Bill, 2013; Contempt of Court Bill, 2013; Magistrates’ Courts Bill, 2013.
Land and Environment
Passed: Land Registration Act, 2012; Land Act, 2012; National Land Commission Act, 2012; Environment and Land Court Act, 2011.
Pending: Prevention and Control of Marine Pollution Bill, 2014; Forest Conservation and Management Bill, 2014; Environmental Management and Co-ordination (Amendment) Bill, 2013; Water Bill, 2014; Mining Bill, 2014.
Passed: Constituencies Development Fund Act, 2013; County Governments Public Finance Management Transition Act, 2013; Public Finance Management Act, 2012; National Government Loans Guarantee Act, 2011; Independent Offices Act, 2011; Commission on Revenue Allocation Act, 2011.
Public Service and Leadership
Passed: Leadership and Integrity Act, 2012; Public Service Commission Act 2012; Ethics and Anti-Corruption Commission Act, 2011; Teachers Service Commission Act, 2012; Ethics and Anti-Corruption Commission Act, 2011.
Representation of the People and the Legislature
Passed: Political Parties (Amendment) Act, 2012; Elections (Amendment) Act, 2012; Political Parties Act, 2011; Independent Electoral and Boundaries Commission Act, 2011; Election Campaign Financing Act, 2013; Elections Act, 2011).
Pending: Parliamentary Powers and Privileges Bill, 2014; County Assemblies Powers and Privileges Bill, 2014.
Impressive, right? Not exactly.
Based on the above, one cannot objectively deduce and make inferences on whether CIC has succeeded or not. Why? Well, without taking away any credit from them, monitoring, facilitating and overseeing the development of legislation is not entirely a landmark achievement for the Commission. Protection of the constitution & promotion of constitutionalism are the key aspects of a well implemented constitution. This is exactly where CIC has failed. Let’s itemise their failures:
One, the passing by Parliament of the Security Laws (Amendment) Act, a bill that allows the security agents to hold suspects for nearly a year without charges and eliminates several checks and balances on presidential powers was a retrogressive Act; it took the country several decades back. What, however, is most appalling was the silence of CIC on this matter. That a commission mandated to protect and promote constitutionalism can be quite on such a magnanimous matter is worrying. In the end, historians will remember not the words (and deeds) of “our enemies” but the silence of our friends (CIC).
Two, the other aspect is the representation of the people and the legislature. The Leadership and Integrity Act, 2012, was meant to actualise Chapter Six of the constitution by setting the bar very high for public and state officers. The Bill was passed by Parliament in 2012, having gone through CIC. The 10th Parliament mutilated the Bill to the extent that even Adolf Hitler would be eligible for a state office. This blatant disregard of the law by the MPs should have been challenged in a court of law by CIC. But the Commission chose to be on the wrong side of history, again!
Three, the Cabinet Secretary for Land and Housing and the leadership of the National Land Commission (NLC) have been at war for almost two years now. While it’s not the business of the CIC to engage in dispute resolution, it must not be lost to us that the bone of contention is the constitutional mandate of the NLC vis-à-vis the ministry of Land.
CIC should be able advice these two institutions on the mandate of each and if need be, seek legal redress on behalf of Kenyans in order for the country to realise the much-needed and sought land reforms.
But it is not all gloom and doom for and at CIC. The commission has been able to go through over 35 Bills and have them legislated and passed as laws. With a few months left to wind up, and given that they’ve indicated they won’t be requesting for an extension of their term, they have an opportunity to salvage whatever shortcomings associated with them.
That being said, defending the constitution is our collective and national responsibility, not just for CIC.^