According to the Schedule 5 and 6 of the Constitution there are 47 Bills to be legislated within 5 years. 28 of these laws are to be legislated within 18 months of the promulgation of the constitution.
Legislation on Land under Article 68 to be implemented within 18 months
- Ethics and Anti Corruption Commission under Article 79 within one year
- Legislation on leadership under Article 80 within two years
- Legislation to effect to Chapter 11 on Devolved government within 18 months
- Legislation on Revenue Funds for county governments under Article 207 within 18 months
Despite the provision of clear timelines for implementation of constitutional legislation in 5th Schedule, parliament is still failing to meet deadlines. To be fair most of the bills have been passed, not within the constitutional deadline, but during the extension period sanctioned by parliament when the House realized that it would be unable to meet the deadlines set out in Schedule 5.
The first extension on the deadline for enactment of constitutional bills is well within the law and the constitution provides for it. Chapter 18 allows the National Assembly to extend the time given in Schedule 5 once, for a maximum of a year, if the Speaker of the National Assembly certifies that exceptional circumstances justify the extension and at least two-thirds of the members of the parliament agree to it. “The National Assembly may, by resolution supported by the votes of at least two-thirds of all the members of the National Assembly, extend the period [specified in Schedule 5] by a period not exceeding one year,” Article 261 (2).
Whether or not the ability to meet deadlines qualifies as ‘exceptional circumstances’ is of course debatable. Nonetheless parliament exercised the option to extend the constitutionally prescribed deadline for the passage of bills on land, devolution, country government, and public finance from February 27th 2012 to May 26th 2012 when it accepted a proposal by both the Justice Legal Affairs Committee and the Constitutional Implementation oversight Committee to do so.
In spite of the 3-month extension, 5 days after the new deadline of May 26th crucial bills on devolution and public finance still remain pending. Should parliament be sanctioned for failing to implement the constitution according to the timelines set out in 5th schedule of the constitution? The constitution certainly provides for it. If Parliament fails to pass a law in time under Article 261 (5)-(9) anyone can petition the High Court. The Court can give Parliament one more chance and may stipulate a time within which the law must be passed. If Parliament fails once again, the Chief Justice will advise the President and the President must dissolve Parliament.