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“Errors” of Government Printer

Posted by on 13th October 2011

Categories: Bills

By Mzalendo Contributor – Moreen Majiwa

MPs Danson Mugatana, Martha Karua, and Olago Aluoch have called for an investigation into the Government Printer and employees of Parliament for a crucial error in the publication of the Elections Act 2011. The section in question is Article 34 (9) of the Act.

The misprint of the Act reads, “The party list may not contain a name of any Presidential or Deputy Presidential Candidate nominated for an election under this Act.”  While the actual draft bill reads, “The party list shall not contain a name of any candidate nominated for an election under this act.”

The correct version and the misprint are so substantially different in wording, meaning and intent it’s hard to believe that this is a simple mistake. And it is not the first time the Government Printer has made substantive errors in crucial legislation.

  • There was the incident of the ‘misprint’ in the constitution, while still in draft form. A misprint was one that effectively suspended whole Bill Rights i.e. the most progressive and revolutionary part of the constitution. The Government Printer later apologised for the error.
  • There was the incident when the Government Printer failed to publish the list of the constituencies that contained the names 80 new constituencies created under the new constitution.
  • There was the incident where the Government Printer was summoned before parliament to explain the delay in the publishing of the Independent Electoral Boundaries Commission Bill.

If errors or delays in printing had only happened once, or the errors did not keep happening in the publication of crucial bills/acts, or if the errors did not substantially alter the meaning and intention of said legislation, then maybe the bills could be written of as instances of human error.

However the number and type of incidents of errors, misprints or delays in publications of legislation, and the laws in which the errors occur (the errors and delays have not occurred in just any laws – errors or delays have occurred in the constitution, and the Independent Electoral Boundaries Commission Bill and the Elections Act) make a sound basis for investigations into the Government Printer.

Given the number of laws to be passed in the new dispensation can we really afford to have a sloppy Government Printer?

National Intelligence Service Bill

Posted by on 11th October 2011

Categories: Bills

By Mzalendo Contributor – Moreen Majiwa

If anyone thought there was going to be a change in the way the country’s intelligence service is run in the new dispensation they should think again. Yes, there are new and progressive provisions in the National Intelligence Service Bill 2011 e.g. the requirement that the director general meet the leadership and integrity standards set out in Chapter 6 of the constitution, and that the appointment of the director general be subject to parliamentary approval.

However,  despite these provisions there are several ways in which the bill is retrogressive.   First in its development, unlike other bills the National Intelligence Service Bill 2011 did not go through a process of Cabinet approval.  The bill originated from the National Security Intelligence Service (NSIS) and went straight to the Constitution Implementation Commission (CIC),  by-passing the Cabinet  and scrutiny by that body.   In fact,  the Assistant Internal Security Minister Orwa Ojode recently stated that his Ministry, the Ministry of Internal Security, had not even received the bill. He stated however that the Cabinet could not interfere with matters of defence and security. It seems like a bit of a paradox that the Ministry of Internal Security  “cannot interfere with matters of defence and security.”  And while NSIS is probably best placed to draft a bill on intelligence and security services what happened to consultative processes required under the new constitution?

The second major issue with the bill is oversight of the NSIS, who will provide it and how. The Bill proposes that a “Parliamentary Intelligence Oversight Committee consisting of Members of the National Assembly” provide oversight.  The committee is intended to exercise oversight over the administration, expenditure and policy of the intelligence services. So far so good, except for the fact that the members of the committee will be vetted chosen by the very service for which they are supposed to provide oversight.   The Bill also explicitly provides that “the Committee shall conduct its functions within a ring of secrecy” and that “no member of the Committee may disclose any information or document gained by him in the performance of his functions.” There’s no denying there is need for secrecy in the intelligence services, but in administrative and policy issues?  Furthermore,  what is the point of an oversight body if its “functions are conducted in a ring of secrecy”  how will one tell whether they are indeed performing their oversight role or not?

Then there is the issue of the civil liberties, particularly freedom of speech, access to information, freedom of association, and the right to privacy and the bill has provisions lead to infringement on these rights. For instance, the Bill allows the NSIS to obtain “any information, material, record, document or thing and for that purpose enter any place, or obtain access to anything, search for or remove or return, examine, take extracts from, make copies of or record in any other manner the information, material, record, document or thing” the bill also allows the service to “monitor electromagnetic, acoustic and other emissions and any equipment producing such emissions and to obtain any information derived from or related to such emissions, equipment or encrypted material’ i.e. mobile phones and Internet.”  It can do so without warrant in “extreme emergency or existence of exceptional circumstances” and for reasons of national security.  Of course the definitions for extreme emergency, exceptional circumstance and national are adequately vague that they may cover any series of circumstances. I’m not saying that the NSIS will misuse the powers and privileges accorded to it in the NSIS Bill.  However given the history of the country’s intelligence services it is a bit of a leap of faith to think that such powers will never be abused.

12 Constitutional Bills to pass in 2 weeks, how did we get here?

Posted by on 14th August 2011

Categories: 2012 Elections Bills Kenya Constitution

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

How did we get to this point?  The point where Parliament has just shy of two weeks to pass 12 constitutional bills! When the constitution was promulgated in August last year it was evident that its implementation would require the enactment of a multiplicity of complex legislation.

It seems, to me at least, that all provisions were made to ensure that transition from the old dispensation to the new dispensation was a smooth as possible. The new constitution staggered the deadlines for the enactment of all the required legislation according to urgency. The constitution also set out clear time lines for enactment of said laws. It also broadly outlined the manner in which the transition was to be managed and new laws passed in the transitional and consequential clauses in the 5th and 6th Schedule. Two new bodies, a parliamentary select committee, the Constitutional Implementation Oversight Committee, and an independent commission, the Commission for the Implementation of the Constitution, were formed to oversee the transition.

Yet here we are, so far only the Vetting of Judges and Magistrates Bill, the Judicial Service Bill, Independent Electoral Boundaries Commission Bill, The Salaries and Remuneration Commission Bill, and The Supreme Court Bill have been passed. However still pending is the enactment of legislation of on:

  1. Citizenship (Article 18)
  2. Kenya National Human Rights and Equality Commission (Article 59)
  3. Ethics and Anti-corruption commission
  4. Elections (Article 82)
  5. Electoral disputes (Article 87)
  6. Political Parties (Article 92)
  7. Urban areas and cities (Article 183)
  8. Contingencies Fund (Article 208)
  9. Loan guarantees by national government (Article 213)
  10. Revenue Allocation Commission
  11. Commission on Administration of Justice
  12. Ratification of Treaties

The passing of a bill of does not happen overnight. Before a bill becomes law has to presented before parliament, go through a first reading, followed by a second reading, a committee stage and third reading. Each stage has a purpose the rigor of each stage has implications for quality of the bill. A glance at the bill tracker on parliament’s webpage, updated as recently 8th August, shows that some of this legislation has not been even been presented, and the few bills that have been presented are somewhere between the first reading and the second reading (as a side note is it really necessary for all the bills to be separate pieces of legislation?)

Seriously, what are the chances of parliament meeting the constitutional deadlines for the enactment of the requisite laws? And even if parliament does meet the constitutional deadlines what are the implications of the trying to pass this amount of legislation in two weeks on the quality of the laws? And what are the implications on the constitutional requirement for public participation in the making of laws (Article 118)?

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.

Less presidential bids, more constitution implementation please!

Posted by on 18th October 2010

Categories: Bills Kenya Constitution Kenyaelection07

By Mzalendo Contributor – Moreen Majiwa

Kenya is the quintessential definition of a country locked in a trap of perpetual election campaigns.  Almost two months since the promulgation of the new constitution you would think that our leaders are now squarely focused on its implementation. You would be wrong.

Our law makers seem to have eschewed the implementation process for more ‘presidential’ matters.  So far a number of our leaders have announced their presidential bids for 2012. In the past month Gichugu MP Martha Karua, Vice President Kalonzo Musyoka, and  William Ruto, have cast their hats into the lot. Polls to find out the national favourites for president have been conducted. Saboti MP Eugene Wamalwa cast his bid as early as February 2010.

Given the ever increasing number of presidential bids it is obvious that the campaign train has left the station and is moving full steam ahead at ever increasing speed with no intention of slowing down. Never mind that we still have a constitution to implement. The  question is how does a country with its leaders constantly on the campaign trail implement a constitution? In a context, in which from past experience we can predict a veritable rat race for the presidency, and newly created seats, constant aligning and realigning of parties, and quicksilver creation, demolition and reformation of alliances, how do we do ensure that the job of implementing the constitution gets done?

A realistic look at our context reveals that it is improbable, though not impossible with hard work and focus, that  all the over 30  implementing bills, with a 1-2 year deadline for enactment will be passed before the next election. It is therefore imperative that we call on our leaders to prioritise the enactment of legislation that will ensure smooth transition between the present administration and the next one in the 2012 election.

Which laws should we prioritise? In my opinion, we should prioritise implementation of electoral laws, outlined in Chapter 7 of the new constitution on representation of the people. These include the legislation on elections, electoral disputes, and legislation on political parties. Enactment of electoral laws to ensure an open and transparent election process and laws to put in place peaceful and clear procedures for resolving election disputes is critical to averting the sort of crisis we saw in 2007.

The laws on the Independent Electoral and Boundaries Commission are also crucial to delineate the countries new administrative zones and oversee the election process. Currently there are two separate commissions overseeing elections and boundaries and both are interim commissions.

Enabling legislation for chapter 11 on the devolved government is essential. Issues of devolution are certain to come up in 2012. Devolution of government introduces new structures and institutions while simultaneously dismantling others. This process if not properly legislated for devolution presents a site for major conflict or major corruption. Comprehensive legislation is need to police the transition to devolution, assuring provisional administrators that they will not lose their positions is not sufficient.

Last but not least legislation on chapter 6 on leadership and integrity, the ethics anti-corruption commission deserves priority, both in the face of ongoing scandals and to ensure that there is a filtering process for individuals who will be vying for positions in 2012.

To our leaders I say this is my road map. Show me yours!

Judicial Service Bill

Posted by on 22nd September 2010

Categories: Bills

Draft Opposition Bill now available on Mzalendo

Posted by on 3rd November 2008

Categories: Bills Uncategorized

[Hat tip Mwalimu!]

The controversial Opposition Bill is all set to be discussed in Parliament in the next few weeks. It has been difficult to get a copy of the full text of the bill but we finally managed to do so.

You can read the full text of the Opposition Bill here.

Draft Bills Updated on Mzalendo

Posted by on 17th October 2008

Categories: Bills

The following Draft Bills have recently been uploaded onto Mzalendo’s Bill page (hat tip MM!):

– The Constitution of Kenya Review Bill 2008 19th
– Insolvency Bill 2008
– Reproductive Health & Rights Bill June 2008_2_
– The Cabinet Ministers Bill,2008
– The Matrimonial Property Bill
– Family Protection Bill
– Equal Opportunities Bill
– The Marriage Bill

Legislative Agenda for the 10th Parliament

Posted by on 8th March 2008

Categories: Bills News

BY MZALENDO REPORTER

President Kibaki on Thursday March 6, 2008 opened the second session of the tenth Parliament and set a crowded though ambitious agenda for Parliament in the next 5 years. This includes over 20 Bills and a raft of Sessional Papers. Four of the Bills, according to the President, must be accorded top priority by the Coalition government and the whole House in general.

The top priority Bills are:
1) the National Accord and Reconciliation Bill
2) the Constitution of Kenya (Amendment) Bill
3) the Establishment of Truth, Justice, and Reconciliation Commission Bill
4) the Establishment of the Ethnic Relations Commission of Kenya Bill.

The National Accord and Reconciliation Bill, perhaps the most urgent, is aimed at putting into legislation the power sharing deal signed by President Kibaki and ODM leader Raila Odinga after one month’s mediation talks chaired by former United Nations chief Kofi Annan. The Bill seeks to create the position of Prime Minister, and two deputy prime ministers. It also seeks to transfer the roles of the head of government from the President to the Prime Minister leaving the president as the head of State. It will also provide clear roles of the new posts as well as criteria of appointing and dismissing the prime minister and the deputies.

The Constitution of Kenya (Amendment) Bill is aimed at giving Kenyans a new constitution, which has been elusive for over 15 years. PNU and ODM agreed that there will be five stages in the review of the Constitution, in and outside Parliament, culminating to a referendum.

The Truth, Justice, and Reconciliation Commission Bill seeks to create a special commission mandated to inquire into human rights violations, including those committed by the state, groups, or individuals. This includes but is not limited to politically motivated violence, assassinations, community displacements, settlements, and evictions. The Commission will also inquire into major economic crimes, in particular grand corruption, historical land injustices, and the illegal or irregular acquisition of land, especially as these relate to conflict or violence. Other historical injustices shall also be investigated. The Commission will inquire into such events which took place between December 12, 1963 and February 28, 2008.

The Ethnic Relations Commission of Kenya Bill on the other hand seeks to establish another commission with the mandate of probing how various communities have related to each others and causes of conflicts amongst them.

According to President Kibaki, the government is focused on improving market performance of several key commodities. The government has proposed amending the Coffee Act 2001 to provide for direct sales of coffee and to amend the Sugar Act 2001 to restructure the sugar industry. It also plans to introduce bills and Sessional papers covering the dairy, poultry and fishing industries, among others. To boost the tourism industry, the government will be tabling three bills; the Environmental Impact Assessment Regulations Guidelines, the Tourism Bill and the Wildlife Bill.

The government also plans to table a Sessional Paper on Cooperative Development Policy and a bill on Savings and Credit Cooperatives. These are aimed at giving an impetus to the role played by cooperatives in the production and marketing of produce as well as mobilizing savings and providing credit to the majority of Kenyans. The government will also introduce legislation that will regulate the role of non-public entities such as civil society and international education providers as well as propose the establishment of a Technical Industrial Vocation and Entrepreneurial Training Authority. This is inline with implementation of the free primary and free secondary education programmes, which according to the President, require legislation to entrench the reforms in the entire education sector within the country’s laws.

Entrenching a culture of science, technology and innovation in the society and boosting the country’s dream of Vision 2030 is also in focus. In this relation, the government will introduce a National Policy for Science, Technology and Innovation. It has also proposed a bill to upgrade the National Council of Science and Technology to the National Commission of Science and Technology. On the way as well is a bill that will lead to the creation of the National Science Foundation and National Innovation Agency. To deal with poverty and inequitable development, the government plans to table a Sessional Paper on Cooperative Development Policy and a bill on Savings and Credit Cooperatives.

In the health sector, the Government has proposed to review the Public Health Act so as to consolidate 23 different Public health laws into a single Act of Parliament. It plans to table policy papers on Health Care Financing, Health Services Commission and Decentralised Funding of Health Facilities. With regard to the youth, the government has proposed amendments to the Armed Forces Act to enable youth trained under the National Youth Service be absorbed in the armed forces. It will also table a bill to provide for the creation of a National Youth Council. Further, the Government will re-table the Sessional Paper on Employment Policy for discussion in the House on the urgent and critical matter of providing enough jobs for young people. With regard to the protection of the family and children, the government has proposed amendments to the Children’s Act 2001 for better implementation. The government also plans to introduce the Information Communication Technology Bill as a regulatory framework for broadcasting, electronic transactions and cyber crime.

In the water sector, the government will table the National Water Harvesting and Storage Policy to facilitate harnessing and storage of recurrent floodwaters as well as the National Shared Water Resources Policy to promote equitable development of water resources nationally. Government plans also to introduce a policy on the registration of contractors as well as the creation of a national construction company to build capacity among local contractors. It will also introduce legislation touching on the Protection of Road Reserves, Registration of Engineers and Architects as well as Quantity Surveyors.

With regard to local authorities, the government plans to bring to the House new amendments to the Local Government Act to enable the direct election of mayors and county council chairmen.
According to President Kibaki, this particular reform is long overdue and this Parliament should deliberate on it as a matter of priority. To ensure proper planning and development of urban areas as well as the proper enforcement of laws and by-laws for regulation of urban development, the government plans to table proposals to set up a National Urban and Metropolitan Areas Authority.

To promote the development of affordable housing the government will present the Housing Bill and a Landlord and Tenant Bill. The government also plans to table the Organised Crimes Bill to contain the emergence of organized gangs and militias which bode ill for our society. It also plans to table the Anti-money Laundering Bill as well as introduce amendments to the Chief’s Act and Firearms Act.

Upcoming Bills (according to the government)

Posted by on 29th May 2006

Categories: Bills

* Links updated. We need your assistance with filling the blanks, if you have soft copy access to any of the draft bills that we do not link to, please forward them to us via the contact page.

The following bills are expected to be re-tabled when Parliament resumes. Here’s hoping that the MPs do more than draw fat paychecks. Most of these bills have been pending in parliament since 2004.
1. The Sexual Offences Bill. For criticism of aspects of the bill, click here. For the other side of the argument, click here. In response to some of the criticisms raised during the House debate, the Bill is widely to be amended following recommendations of the Committee on Justice and Legal Affairs.

2. The Media Bill 2006. Read analysis on the draconian nature of the bill here.

3. The Statute (Miscellanous Amendments) Bill 2006, which seeks to among other things, amend the Public Officer Ethics Act, 2003 to make the declaration of assets and liabilities open to public scrutiny (analysis of the weaknesses of the current act can be found here). Other amendments will also seek to increase the number of judges from 50 to 70 and Judges of Appeal from 11 to 15. More details on the bill can be found here.

4. The Witness Protection Bill. Has been pending since last year. First reading was in April 2005.

5. The Proceeds of Crime and Money Laundering Bill to enable the Government acquire funds and assets that have been obtained illegally.

6. The Cotton Bill, 2005 to revitalise the cotton industry and restructure the Cotton Board.

7. Amendments to the Coffee Bill of 2001. For more on why the amendments are necessary, click here.

8. A Small and Medium Scale Enterprises Bill.

9. The Deposit Taking and Micro-finance Bill 2005 aimed at promoting access to credit by micro-entreprises. For background on the bill, including the recent consensus agreement reached by industry stakeholders click here. Analysis of the proposed bill can be found here, and an older version of the bill can be found here.

10. The Savings and Credit Co-operative Societies Bill. A brief background on the bill can be found here.
11. Amendments to the Transport Licensing Act to make it easier to obtain vehicle licenses and to enable PSV operators to renew their licenses all year round.

12. The Kenya Information and Communications Bill, 2006 to replace the current Kenya Communications Act, 1998.

13. A Bill for the establishment of a Financial Management and Control Board for local authorities experiencing financial distress.

14. The Local Authorities Bill which seeks to provide for the creation of a Metropolitan City of Nairobi and to create the necessary legal framework that will formalize the elevation of Kisumu and Mombasa to city status.

15. The National Social Health Insurance Fund Bill 2004

16. The Wildlife Conservation and Management Amendment Bill 2004. Detailed critic of the bill as originally proposed is available here. The President had refused to assent to the Bill in 2004, apparently due to, among other things, concerns about the legalization of sport hunting

17. The Banking Amendment Bill 2004

18. The Political Parties Bill which aimes to provide an appropriate registrations system for parties and provide for state funding of parties. A detailed chapter by chapter digest of the bill is available here. For some background on the problem, click here.

19. Revising of the Restrictive Trade Practices and Monopolies and Price Control Act.

20. The National Museums and Heritage Bill. The Bill intends to update and enhance the legal framework of Museums, Cultural Property and Heritage management to make them consistent with international standards and treaties. Some background on the bill, including some of its defects, is available here.

21. The Refugee Bill. The Bill seeks to make provision for the recognition, protection and management of refugees in Kenya. The Bill will also enhance the legal framework covering refugees in line with the Constitution of the International Refugee Organization and other Conventions that are followed by the United Nations High Commissioner for Refugees and the African Union Charter on refugees.

22. The Public Archives and Documentation Service (Amendment) Bill. The Bill aims to strengthen the Kenya National Archives and Documentation Service by way of extending its scope of operations. Current law available here.

23. The revised Statistics Bill will provide for the establishment of the Kenya National Bureau of Statistics (KNBS) as a body corporate and principal agency for collecting, analyzing, publishing and disseminating official statistics in Kenya.

24. The Kenya Law Reform Commission Bill. This Bill seeks to give the Kenya Law Reform Commission operational autonomy, to make it more effective and efficient and to re-define its objectives, functions and composition.

25. The Companies Bill. The Companies Bill will provide a modern framework for conducting business.

26. Review of the following labor laws: regulation of wages (Cap.22a), Factories and other places of work (Cap 514), Workmen’s compensation Act (Cap 236), Employment Act (Cap.226), Trade Disputes Act (Cap.234) Trade Unions Act (Cap.233).

27. The Industrial Training Act (Cap 237 Amendment Bill of the Laws of Kenya) which is currently at the AG’s Chambers will be finalized in order to empower the Directorate of Industrial Training (DIT) with the legal framework to provide cutting edge training to both school leavers as well as workers employed in Industry.

28. Kenya Maritime Authority Bill 2005. Kenya Merchant Shipping Bill 2005. Bill for the establishment of open ships registry in Kenya.