Entries from November 12th, 2010

On the Extension of Parliament’s Term – Is it Constitutional?

Posted by on 12th November 2010

Categories: 2012 Elections Kenya Constitution

BY MZALENDO CONTRIBUTOR  – Moreen Majiwa (@mmajiwa)

During their two-day retreat MPs made a unanimous decision to extend their term to December 2012. According to the Daily Nation Thursday November 11, 2010 some parliamentarians stated that it was even possible for the National Assembly to extend its term to February 2013, the date that marks five years after the current parliament was established.

We have been left wondering – is this proposed extension constitutional?

Article 9 (1) of the 6th Schedule of the new constitution which outlines the provisions for transition states that the ‘first election for the President, the National Assembly, the Senate, county assemblies and county governors under this Constitution shall be held at the same time, within 60 days after the dissolution of the National Assembly at the end of its term.’ Article 10 of the same schedule reads ‘the National Assembly existing immediately before the effective date shall continue as the National Assembly for the
purposes of this Constitution for its unexpired term’.

The interpretation of the phrase ‘unexpired term’ is crucial to determining the
constitutionality of the proposed extension. If the phrase ‘unexpired term’ is taken to mean five years, with 12 calendar months in each year, then a case can be made for the extension. Counting from December 2007, the date of the previous general election, the current parliament’s ‘unexpired term’ would end December 2012, the date of the proposed extension. Counting from February 2008, the date of the establishment of the current parliament, which was delayed due to the post election violence of 2007/2008, parliament’s unexpired term would end in February 2013.

However regarding when the elections should be held the new constitution is clear.  The constitution states that elections should be held on the second Tuesday in August in every fifth year for members of parliament [Article 101 (1)] the president [Article 136 (2)], county assembly [Article 177 (1)] governor and his deputy [Article 180 (1)].

Confining the argument to parliament Article 101 (1) states ‘the general election of MPs shall be held on the second Tuesday in August every fifth year’.  The question that should be asked with regards to the date of the next election as envisioned by the new constitution is whether the second week of August 2012 falls within the fifth year of the five-year parliamentary term?

Whether the counting of the five years begins from December 2007, the date of the last election, or from February 2008, the date of the establishment of the current parliament the second Tuesday in August works out to Tuesday 12th August 2012 is within the fifth year of the current parliament’s term. This is all that is required by the constitution for the election to take place on 12th August 2012.

Under the previous dispensation, the President was the sole determinant the date of the general elections. The element that the new constitution brings to determining the date of the general election is certainty i.e. the second Tuesday of August 2012.

Wetangula Report Annexes

Posted by on 11th November 2010

Categories: Breaking News

Readers, we are pleased to note that we have received the annexes for the Wetangula report.

Annex 11 – Ministry of Lands – Valuation Report.pdf
Annex 12 – Architectural Analysis by – Dick Olango.pdf
Annex 13 – Letter from Amb. Awori – Acquisition of CURRENT premises.pdf
Annex 15 – Letter from Amb. Ole Leken – 22nd June 1990.pdf
Annex 16 – Letter from Amb. Ole Leken – 30th August 1990.pdf
Annex 17 – Wikipedia Article on Meguro Ward – Tokyo.pdf
Annex 18 – Note Verbale from Tokyo Embassy.pdf
Annex 19 – Property Valuation by Coral Corporation.pdf
Annex 20 – Letter from Coral Corporation – Clarification – 15th July 2010.pdf
Annex 21 – Legal letter from Lawyer S. Yanagawa.pdf
Annex 22a – MTC Minutes – 25th May 2009.pdf
Annex 22b – MTC Minutes – 8th June 2009.pdf
Annex 22c – MTC Minutes – 12th June 2009.pdf
Annex 24 – Letter from E.Korir to Tokyo – Purchase of Chancery – 28th May 2009.pdf
Annex 35 – Profile of Kijima International Legal Office.pdf
Annex 38 – Signed Sales Contract.pdf
Annex 41 – Copy of Cheques and Bank transaction documents.pdf
Annex 42 – Letter from N. Kuriyama – Responding to Parliamentary Committee Report – 22nd October 2010.pdf
Annex 43 – Letter from Tokyo Mitsubishi Bank – 27th October 2010.pdf
Annex 44 – Official Report of Fire Outbreak – From Meguro Fire Department.pdf
Annex 45 – Letter from Treasury – On Proceeds of Sale of Government Land in Lagos.pdf
Annex 46 – Letters to Clerk – Requesting for Clarification Sessions with Committee.pdf

You can download the 22 annexes in a zip file here

Looming Deadlines

Posted by on 10th November 2010

Categories: 2012 Elections Kenya Constitution Members of Parliament

By Mzalendo Contributor Moreen Majiwa (@mmajiwa)

The Proposed Constitution  came into effect 14 days, after it was approved in the referendum. Section 25 (1) of the sixth schedule of the constitution requires parliament to constitute the Commission on the Implementation of the Constitution and the Commission on Revenue Allocation within ninety days of the commencement of the constitution. The end of the 90-day deadline is 27th November 2010. In other words Parliament has less than 20 days left to implement this part of the constitution.

On Monday this week all 222 MPs met at a two-day retreat to discuss their strategy on implementation of the constitution to ensure that enabling legislation is enacted within the time frames allotted in schedule 5 of the new constitution. Needless to say the establishment of the Commission on Implementation of the Constitution for which jobs have already been advertised, and the establishment of the less known Revenue Allocation Commission are at the top of their agenda.

The importance of  Commission on the Implementation of the Constitution in seeing smooth and timely implementaton process cannot be over emphasized. According to Article 261 the Commission on the Implementation of the Constitution in consultation with the Attorney General is the body charged with preparing the Bills for tabling before Parliament.

The Commission on Revenue Allocation will determine the allocation of funds to county governments and is vital for the transition to the devolved system of government. Each commission will consist of 9 members nominated by various bodies and through varying process one wonders whether this can be done on or before 27th November.

Minister for Justice and Constitutional Affairs Mutula Kilonzo has warned that the constitutional implemenation has already fallen behind and could face further delays unless swift action is taken. The Justice Minister proposed the tabling of an omnibus bill the would see the creation of all commissions in one go. Parliament is well within its right to pass such a bill as Article 261 (1) allows Parliament to enact any legislation required to meet the timelines outlined in Schedule 5 of the new constitution. However given the relectance of Parliament to table any implementation bills before the Comission on Implementation Constitution is formed may hinder the passage of such a bill.

What happens if these deadlines are not met? Article 261 (2) allows Parliament to extend the deadlines for enactment of enabling legislation by one year through a resolution supported by and at least two thirds of the members of the National Assembly.  However, the deadline can only be extended once and only under exceptional circumstances which have to be certified as exceptional by the Speaker of the House. If Parliament fails to pass the required law within the extended time period, anyone can complain to the High Court. The Court will then direct an order to Parliament to ensure it takes steps to pass the required laws within a stipulated time period and make regular progress reports to the Chief Justice. If Parliament fails to follow the court’s orders, the Chief Justice will advise the President to dissolve Parliament and the President must do so– Article 261 (7).

If there ever was a strong incentive  to meet the deadlines set out in the constitution Article 261 (7) is it – we suspect MPs will not be interested in dissolution.

Vacancies advertised for Commission for the Implementation of the Constitution

Posted by on 5th November 2010

Categories: Kenya Constitution

Thanks to our friends at the Kenya Human Rights Commission, we have been able to obtain a soft copy of the Kenya Gazette Special notice advertising positions for the Implementation Commission (for some reason not up on the Kenya Law Reporting site yet, which is usually reliable).

Click here to access the notice.

Judicial Service Commission and Parliament Vetting – Who is Fooling Who?

Posted by on 2nd November 2010

Categories: Kenya Constitution Members of Parliament

By Mzalendo Contributor Moreen Majiwa

It seemed that the Judicial Service Commission would be the first commission formed without contention. However the decision by Parliament’s Justice and Legal Affairs Committee to call the lawyer elected to the Judicial Service Commission by the Law Society of Kenya, Mr. Ahmednasir Abdullahi, for a second meeting, whose nature and basis is unknown seems dodgy.

At an earlier meeting with the Justice and Legal Affairs Committee Mr. Ahmednasir Abdullahi questioned the jurisdictional competence and constitutional viability of the vetting process being carried out by the Committee. The Committee responded stating that the vetting process was perfectly legal,  constitutional and within the procedures of the National Assembly. It stated further that the National Assembly had its rules on how Parliament approves appointments.

Though the National Assembly may have its rules on how it approves appointed persons the constitution takes precedence over these rules. The position occupied by the lawyer on the Judicial Service Commission is an elected position and not an appointed one.

The process through which an advocate is to serve on the Judicial Service Commission is outlined in Article 171 (2) (f) of the constitution. With regards to lawyers on the JSC Article 171 (2) (f) reads the Judicial Service Commission shall be constituted of ‘two advocates one woman and one man each of whom has at least fifteen years experience, elected by the members of the statutory body responsible for the professional regulation of advocates.’

Broken down in plain English, this means that the two advocates who are on the Judicial Service Commission will be elected i.e. chosen through a voting process. The constitution clearly states the voting process will be carried out by the body responsible for the professional regulation of advocates, in Kenya this is body is the Law Society of Kenya. At the elections carried out by the law society Mr. Ahmednassir was elected to the position having garnered 896 votes.

Neither on construction nor intent do the Articles 171 or Article 20 of Schedule 6 on the Judicial Service Commission make provisions for additional vetting of lawyers elected by the Law Society of Kenya by the Justice and Legal Affairs Committee. The process of vetting is one that is quite intensive and if indeed it were intended for the lawyers elected to the JSC to be vetted again by Justice and Legal Affairs Committee it would have expressly provided for.

No one disputes the importance of vetting people in leadership positions. However, the vetting done by the Justice and Legal Affairs Committee seems to have no legal grounding. Under Article 171 (2) (h) the only appointment that requires approval of the Parliament is the person appointed by the President. It important to note that is an appointed position not an elected one as in the case of lawyers.

The LSK vetted all the lawyers that ran for the position to ensure they were qualified. An election process was carried out and the lawyers elected in the manner provided for in the constitution. If there was need for vetting by any other body it should have taken place before the election process.

MPs ought to uphold the significance of elections. What if the during their elections once the elected another body was given had the right to vet them again?

On a (suprisingly) inspiring visit to Parliament…and why you should try it.

Posted by on 29th October 2010

Categories: Citizen Engagement MP Participation News Vox Pop

BY MZALENDO CONTRIBUTOR – Moreen Majiwa @moreenmaj

Earlier this week I had the pleasure of visiting our National Assembly. I am ashamed to admit that the last time I did this was as part of a mandatory primary school visit.  That was so long ago I can’t recall the details. Excited about my impending parliamentary visit I told a few of my friends about it.  My excitement was met with awkward silences followed by blank stares and the inevitable, “Why don’t you just watch the proceedings on KBC, besides how are you going to get in?”

Under this steady attack I found myself, an only one-time visitor to our National Assembly becoming its staunchest defender and activist-in-chief for citizen visits to parliament. It appears my peers are trapped in a cycle of political apathy and cynicism.  Some have given up the good fight as it were and are simply getting on with it.  Others complain about everything under the sun from traffic to
poor leadership, lament about the uselessness of making demands to our government and then get on with it.

As was pointed out severally KBC does stream parliamentary proceedings in real-time, which is a huge improvement over previous years where the Hansard and newspapers were pretty much the only way for members of the public to glean what was going on in Parliament.  In addition, thanks to technology, we can keep up with the latest news through online newspapers, blogs, facebook and twitter.   So the idea of visiting Parliament in person seems pretty redundant.

The problem with accessing the goings on in the Parliment through different forms of media is that you only see, read or hear what is presented to you. The content is shot, cut, packaged and presented to us.  A live in-person visit has a different quality there is an energy that is almost palpable.  You get to see the
whole show uncensored version of the good, the bad and the ugly.

So once I decided to visit Parliament, I realized that I had no idea whether I could show up or needed something special to get in.  After a few calls I found out that I would need a pass to get in, and this pass is usually organized by a sitting MP. Going to the gate and trying my luck with the security officers, had little
appeal, and since I didn’t know any MPs personally I sent out  e-mails to my contacts who I hoped would help me connect to someone who could assist with a pass.   I got lucky and got a pass organized, but couldn’t help wondering whether the process of attending a session couldn’t be a bit more straight forward (apparently you can just show up but your ability to get in depends on the security personnel you encounter that day).

I arrived at the gates of parliament precisely at 9:00 am only to find that the session did not start till 2.30 pm (note to self-check out www.bunge.co.ke to find out the parliamentary timetable next time).

I had low expectations mainly due to the poor portrayal of our leaders in the media.  Instead, I was pleasantly surprised to encounter such lively debate (although the fact that it was the Wetangula report being discussed might have contributed to some of the energy). I got see that some  MPs
really did fight the corner of their constituents valiantly, and wondered whether the media couldn’t do a better job of not just focusing on the negative aspects of MPs but also showcasing those who do work and the fact that a lot of other business is dealt with in parliament.

For those whose expectations of our parliamentarians are at an all time low, it may be time to stop being so pessimistic, to take a visit to parliament; it may inspire you to increase your expectations and make a demand or two of our leaders while you’re at it.

Should Wetangula step aside?

Posted by on 27th October 2010

Categories: Members of Parliament Political Parties

Last week Thursday Adan Keynan, MP for South Wajir Constituency and Chairperson of the Parlimentary Committee on Defence and Foreign Affairs, moved a motion for adoption of the committee’ s report on the Wetangula scandal.   The report indicts the Minister of Foreign Affairs, Moses Wetangula and his PS Mwangi Thuita for the fraudlent procument of property for an embassy in Tokyo, Japan – due to numerous irregularities in the purchase of this property we, the Kenyan tax payers, lost over 1.1 billion shillings in the transaction.  The report further recommends that the minister step aside
pending investigations into the matter.

When the motion was moved last week the Minister of Foreign Affairs asked for more time to study the report and prepare his response. Yesterday was D-day and the house was packed.    Yatta MP, Charles Kilonzo, seconded the adoption of the Parliament report outlining of the irregularities in the procurement of the property in Japan .   Among other things, no valuation on the property despite the fact the Ministry was advised that it was paying an inflated price for the property. No negotiations were carried to bring down the price of the property and no further experts were consulted. The Ministry went ahead and made an advance payment of the 80% of the purchase price of the property to the vendors. This payment is 60-70% more than the usual 10-20% usually paid in advance for such transactions. More worrying than the lack of consultation however is the existence of two disparate sale agreements for the same parcel of property and the fact that the 80% advance payment was made over the counter
to the vendor and in cash.

Given the magnitude of the irregularities in the Ministry’ s dealings in the acquisition of the Tokyo mission, there is no doubt which way House
should vote on the adoption of the report.  However, interpreting the outcome of debates in our parliament is hardly an exact science. Voting patterns our parliament are an intricately connected in a political equation that includes personal interests, promises for future support, community politics and loyalties which shift quite literally from debate to debate. This equation makes it difficult to predict with any certainty whether the report will be adopted or not.

Yesterday, the Minister argued that he does not deal with day to
day running of the Ministry and therefore was not privy to information of what actually transpired in Tokyo.  So what exactly is the Minister responsible for then?  The passing of the buck by the Minister to the technocrats in the Ministry is unacceptable.

The debate continues today. Which side are you on?

Judicial vetting under the new constitution

Posted by on 26th October 2010

Categories: 2007 Elections Kenya Constitution Kenyaelection07

BY MZALENDO CONTRIBUTOR MOREEN MAJIWA (@moreenmaj)

The Kenyan Judiciary has for along time been plagued with accusations of corruption. Indeed these concerns were most visible during the 2007 presidential elections where both candidates expressly declared a lack of confidence in the judiciary to resolve the dispute fairly.

So what changes under the new constitution?

First, Section 23 of the sixth schedule of the new constitution requires that within the first year of the new constitutional dispensation Parliament create mechanisms for vetting judges
to determine their suitability to continue service. The vetting process is intended to create a judiciary that is strong and independent and able to decide disputes between people honestly and fairly as well as restore the public’ s faith in the judicial system of Kenya.

Second, on Thursday this week 21st of October, 2010 Parliament approved the first two nominees to the Judicial Service Commission, which will be responsible for the vetting – High Court Judge Justice Isaac Lenaola and Principal Magistrate Emily Ominde. In a historic moment for Kenya, the search for the vetting team is a public process.

The new constitution provides a broad roadmap for
a vetting process that can be vastly more different, fair, open and transparent than the one that took place in 2003/2004, conducted by a Judicial Service Commission that is independent and representative. It is up to parliament to implement enabling legislation that makes such a process possible.

The road to vetting the judiciary and creating the judicial structures envisioned in the new constitution has began on the right footing lets not repeat the mistakes made in the radical surgery of 2005.

Setting a Bad Precedent – Article 8 (14) of the Constitution Implementation Commission Bill

Posted by on 21st October 2010

Categories: Bills Kenya Constitution

BY MZALENDO CONTRIBUTOR – MOREEN MAJIWA

Image via mwangee on Flickr

Earlier this week FIDA (K), LSK and ICJ (K) protested against the inclusion of Article 8 (14) in the Commission for the Implementation of the Constitution Bill, 2010 (the CIC Bill). Rightfully so! Article 8 outlines the application and nomination procedures for would be commissioners. The wording of the Article 8 (14) of the CIC Bill reads: “

nothing under this section shall be construed as precluding the President, in consultation with Prime Minister from forwarding names other than those submitted by the Public Service Commission to the National Assembly for consideration.”

For those who don’t know, the CIC bill provides for the qualifications and procedures for the appointment for the chairperson and members of the Commission for the Implementation of the Constitution (CIC). The CIC’s main task is the provision of policy and legislative guidance and oversight for the implementation of the new constitution. As such its composition has to be right, and its members independent and accountable to the citizens of Kenya.

Some highlights of the commission:

  • Functions of the commission include monitoring, facilitating and overseeing development of legislation and administrative procedures required to implement the constitution.
  • Coordinating with the Attorney General and Kenya law reform commission to prepare legislation to be tabled in parliament, as well as work with each constitutional commission to ensure that the letter and spirit of the constitution is respected.
  • Reporting regularly to the Constitutional Implementation Oversight Committee on progress in implementing the constitution, and any impediments arising in the process as well as prepare a progress report every 6 months to be submitted to the president and the parliamentary select committee.

In its simplest form the nomination process goes a little something like this – following the commencement of the Act public of vacancies on the CIC will be announced through a gazette notice. Qualified members of the public can apply individually to the Public Service Commission (PSC) or organisations can forward applicants’ names to the PSC. The PSC will then gazette the names of the applicants. The PSC will also convene a committee to shortlist and interview candidates for the CIC. From these PSC will chose 3 possible candidates for the chairperson position, and 18 for commissioner positions and forward this list to the President and the Prime Minister. From this list the President and the Prime Minister will pick 1 candidate for chairperson and 8 candidates for commissioners. The list will then be forwarded to the National Assembly for consideration for the chairperson and members of the CIC.

Article 8 (14), if the Bill is passed as currently constituted, allows the premiers to by pass this process and nominate people directly to National Assembly.

If one of the goals of the new constitution is to provide checks and balances on the possible excesses of our leaders, and particularly those at the top, then Article 8 (14) of the CIC Bill contravenes this. It allows the President and Prime Minister to act outside the prescribed nomination process, to side step the Public Service Commission, and unilaterally nominate candidates for the CIC directly to the National Assembly for consideration.

Mzalendo Vox Pop: "Remember We Pay You!"

Posted by on 20th October 2010

Categories: CDF Members of Parliament MP Participation Vox Pop

This interview was done with a young constituent from Kasarani, he’s 22 years old and has never voted, but is clear about what he expects from his MP.

You can find out more about Kasarani constituency at this pretty decent website that’s been set up by the current MP.