Members of Parliament and Constitutional Implementation

Posted by on 23rd February 2012

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One of Kenya’s and the coalition government’s greatest achievements has been the promulgation of the constitution. However recent events surrounding the constitution’s implementation call into question not only whether the political will to implement the constitution actually exists; but also whether we can depend on the members of the National Assembly to implement the provisions of the constitution within the time lines provided therein.

The new constitution curtailed to a certain extent the powers of the executive while simultaneously increasing the powers of the legislature. In the process of the welcome transfer of power from the executive to legislature the constitution created obligations on Parliament to pass legislation to actualise provisions in the constitution within specified periods of time. In effect the constitution tells Parliament what do, and when to do it, but is parliament meeting its constitutional obligations?

Yes there are several bodies charged with different roles in the implementation of the constitution however, constitutional implementation is very highly reliant on action by Members of Parliament. There are more than 50 instances in which the constitution requires Parliament to enact legislation to actualise the constitutions’ provisions. Statements such us “Parliament shall, by legislation” or an “Act of Parliament shall” abound. The implication being that without the requisite action on the part of the National Assembly the constitution remains little more than legislative rhetoric.
This is why Parliament’s recent action/inaction, seemly continuous infighting and the ensuing effect on the National Assembly’s ability to follow through on their constitutional obligations is worrying:

o The formation of the Ethics and Anti Corruption Commission (EACC) now is long overdue. The commission was supposed to be formed one year after promulgation of the constitution. However the establishment of the corruption watchdog is still incomplete. Furthermore parliamentarians seem no closer to reaching an agreement on the nominees with a section of the MPs threatening to block parliamentary approval of the EACC nominees.
o A section MPs has vowed to block the recommendations of the Independent Electoral and Boundaries Commission (IEBC) Report on the delimitation of boundaries and substitute these with their own recommendations, no doubt protracted wrangling will ensue.
o The passage of legislation on devolution and land reform is still pending. The constitutional deadline for enactment of the legislation comes up on the 27th February 2012, less than 5 days.

However it seems parliament will be unable to meet the constitutional deadline for the passing the required laws. This week the Constitutional Implementation Oversight Committee (CIOC), the parliamentary body charged with overseeing the implementation of the constitution, filed a motion to have the deadline for passage of the bills extended by three months.

This is not the first time in which parliament has missed constitutional deadlines. Nor is it the first time in which there is a chance that legislation maybe hastily passed without requisite scrutiny in order to meet constitutional deadlines. It is also not the first time in which wrangles between parliamentarians have delayed or threatened to delay creation of necessary institutions or enactment of crucial legislation to actualise the provisions of the constitution.

Is Parliament responding adequately to its obligations under the constitution? Or given the way in which our parliament works and the tight timelines for enactment of legislation under the constitution, is it too much to expect the National Assembly to fulfil its mandate and pass all the required laws within the given time frames?

1 Comment

  • by charles on 23rd March 2012

    raila anacheza mahakama and we r not ready 2 c this