Just in time legislation?

Posted by on 26th August 2011

Categories:   Kenya Constitution Members of Parliament

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

It probably will not come to this i.e. parliament missing the constitutional deadline, 27th August,
for the enactment of 12 bills. Apart from proper planning that would have allowed the bills to
be passed in timely fashion, it would seem that the August House is making the best of a bad
situation and taking measures to ensure that all the bills passed on time.

Parliament will be sitting for longer hours. MPs have voted to skip certain steps in the legislative
process thus allowing the bills to be fast-tracked. Some bills deemed as non-urgent have
been removed from the implementation schedule. The bills that have been dropped are the
Independent Policing Oversight Authority Bill, The National Police Service Commission Bill and
the Foreign National Management Service Bill you can of course the judge of the importance of
these bills particularly the ones involving police reform.

Then of course there is the resolve to have the bills passed on time is illustrated by the statement
made by MP Abdikadir Mohammed, the Head of the CIOC, who said ‘It may not be the National
Assembly’s fault that the bills arrived late; but it will be the National Assembly’s fault if the bills are
not passed within the deadlines. An extension of the deadlines will be an admission of failure on
the part of parliament,”  though some would posit that the failure has already occurred.

But just in case the bills are not passed in time it would be useful to know what the options are.
The first option and most obvious option involves an extension invoking Article 261 (1) Parliament
can extend the deadlines for up to a year. However this would required the vote of at least two
thirds of the MPs plus the Speaker of the National Assembly would have to certify existence
of exceptional circumstances justify the extension. Of course there is no definition of what
qualifies as exceptional circumstances, so it’s hard to predict what would qualify as exceptional
circumstances in this instance.

Then there is the more controversial second option, a member of the public, civil society; actually
anyone could under Article 261 (5) petition the High Court over the missed deadlines. The Court
would then ‘make a declaratory order on the matter; and transmit an order directing Parliament
and the AG to take steps to ensure that the required legislation is enacted, within the period
specified in the order, and to report the progress to the Chief Justice’. And if Parliament failed to
act within the time give the Chief Justice would then advise the President to dissolve Parliament.

So it seems that the choice is between which is the lesser of two evils i.e. a rushed legislative
process that sees the requisite bills passed before the deadline or an extension (of course the
citizenry could petition the High Court but dissolution seems unlikely). From the political speak,
however, it appears choice has been made the bills will be passed on time.

Of course there are several pitfalls in rushing the bills through parliament, there is the chance
that the bills will not be properly scrutinized, certain provisions could be sneaked in the rushed
legislative process that could have detrimental consequences, there certainly will be little to no
public participation in a rushed legislative process. A rushed legislative process allows for the
type of political slight of hand whose ramifications of which will be revealed only once the process
is over. Public participation will be reduced to a reactionary one once the bills have already
become law.

Whatever the case lets hope this situation is not a precedent to how constitutional bills will be passed in the future especially as we have another slew of bills whose deadline is 18 months
after promulgation.