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The Public’s View of Progress of Constitutional Implementation?

Posted by on 17th October 2011

Categories: Kenya Constitution

By  Mzalendo Contributor – Moreen Majiwa

The promulgation of the new constitution is probably the coalition government’s greatest achievement. However actual implementation of the constitution, hasn’t all been plain sailing. The debate on how provisions of the constitution are to be realised seems to intensify at every stage implementation.

So far the negotiation on implementation of the constitution has occurred mostly between government organs e.g. parliament, the executive, commissions etc. Despite explicit constitutional provisions for public participation, the public has only been involved in a limited way in the constitution’s implementation.

That is part of the reason the Kenya National Dialogue and Reconciliation (KNDR) Monitoring Project is so interesting. The project has surveyed 2000 Kenyans to find out their thoughts on constitutional implementation, electoral reforms, and the legacy of post election violence. The results of the survey have been released as part of a review report on the Progress in Implementation of the Constitution and Other reforms. The results of the survey are an interesting indicator of what everyday people think about the ongoing reforms.

  • With regards to satisfaction with the progress made on implementing the constitution 52% of the survey respondents stated they were either very satisfied or satisfied, while 37% stated are either not satisfied or very dissatisfied.
  • When asked whether they had observed any change in the country since the promulgation of the constitution 44% of the respondents stated they had witnessed no change at all, while 53% respondents replied that their had been change. The biggest change areas were identified as being the public vetting of office bearers, judicial reform, and checking of executive powers. Areas of low change were in delivery of public services, education, reduction in corruption, MPs paying taxes, and delivery of security.
  • Survey participants identified the main roadblocks to implementation of the constitution as being divisions among politicians (65%), 2012 campaigns (19%), lack of resources (14%), and implementation of the 1/3 gender representation rule (7%). Interestingly according to the survey issues that one would think would be major impediments to constitutional implementation are not seen as such. According to the survey only 2% of respondents cited corruption among politicians, lack of commitment by government, and selfish interests among politicians as issues likely to impede implementation of the constitution.

Overall the survey finds the view of the public on the progress of constitutional implementation seems to be favourable, the report finds that the legal and institutional framework for implementation is in place and implementation is on track. The flip side is that the report also finds that though constitutional implementation is taking place, it is marked by legal and policy gaps, poor co-ordination between actors, vested interests, and poor drafting of legislation.

On Sidelining of Commissions and Independent Bodies

Posted by on 27th September 2011

Categories: Kenya Constitution News

By Mzalendo Contributor Moreen Majiwa

Why form commissions and independent bodies if they are going to be sidelined?  The government/parliament has a very poor record of non-interference, follow through, or implementing recommendations of commissions and independent bodies created to perform specific tasks. This trend seems to have carried on in the new dispensation, let’s review.

First, the Constitution Implementation Commission (CIC), whose role is to oversee the implementation of the Proposed Constitution, seems to have a hit several roadblocks i.e. the wrangle between the commission and government over the issue of payment of salaries of the commissioners. The most recent development in the CIC salary dispute being the A-G’s dismissal of a petition brought against himself, the Minister of Finance, and the Public Service Commission, pay negotiations are still ongoing.

Second, the CIC is being increasingly sidelined in its oversight role. Parliament passed 15 bills in less than two weeks against the CIC’s advice and disobeying a court injunction granted to stop the passage of said bills. There’s the unilateral decision by the cabinet to propose the postponement of the date of the next election contrary to the CIC advice, the issue is currently in the hands of the Supreme Court. and the illegal passage of two acts the National Government Loans Guarantee Act and the Contingencies and County Emergency Fund Act.

Third, despite the fact that the IEBC is supposed to be an independent body,  a section of MPs are attempting to influence the panels shortlist of candidates for the positions of commissioners.

I bring this up because there are 11 commissions are to be formed in the new dispensation. Commissions cost taxpayers millions probably billions of shillings every year. The role of commissions play is crucial to reform. However commissions and independent bodies this can only do their job successfully if given an enabling environment and so far it appears parliament is the biggest barrier to proper functioning of the very commission they create.

Amendments To The Constitution, Your Thoughts?

Posted by on 23rd September 2011

Categories: 2012 Elections Kenya Constitution

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

Who would have thought amendments would come this soon?  Barely a year after the constitution was passed there are two possible points of amendment on the table.

I was at a civil society meeting yesterday where the proposals to amend the constitution to facilitate realisation 2/3-gender rule in Article 81 (b) of constitution, and the proposed postponement of the next election were discussed extensively.

On implementation of the not more the 2/3 of either gender rule there were 2 divergent opinions. The first, that there was no way that requirement of Article 81 (b) could be met without a constitutional amendment, and, therefore,  requisite amendments should be made to the constitution to ensure that the 2/3 threshold is met.

The second , no amendments to the constitution should be made with regards to realisation of 2/3 gender. The 2/3 gender rule an aspirational and progressive one, to be realised over time through the creation of an enabling environment therefore no amendment is needed. What is needed is a levelling of the playing field for both genders running for elective positions. Furthermore an amendment to the constitution at this early day would open the gateway for amendments made for political expediency.

On the proposal by cabinet to have the date of the election changed from a date in August 2012 to a date in December 2012, a consensus was reached to wait for the Supreme Court opinion on the matter.

Views on the importance of date of the next general election varied from – the date of the election is not as important as people who are elected, to the view that the constitutional provision on the election date should be given the simplest reading, and the intention of the constitution followed by having the next elections in the 2nd week of August 2012. Some argued that the cabinet was being disingenuous in its reasons for its proposal to have the election in December, and all that was needed for an election to be held in August 2012 was political will and not an amendment to the constitution.

One of the panellists, a CIC commissioner, made the very good point that if any amendments to the constitution were to be made, the process of amendment should be consultative, with 100% public participation. Before any constitutional amendments are made there should be a broad consensus on the amendment by the citizens. Finally, any amendments made to the constitution should be made with the intention effect implementation rather than to erode gains.

What are your thoughts on amendments to the constitution, and what conditions would place for amendment if any?

Is Gender Balance Really Technically Impossible to Achieve?

Posted by on 28th August 2011

Categories: Kenya Constitution

By Mzalendo Contributor – Moreen Majiwa.

“Technically impossible to achieve,” are the words used by the presidential press service to
describe the implementation of the constitutional provisions on gender balance. The statement
reads “With regard to the requirement for one third representation in parliament by either gender,
Cabinet decided to set up a taskforce (includes Mutula Kilonzo, James Orengo, Charity Ngilu, Otieno
Kajawang, Beth Mugo, Naomi Shaban, Kiraitu Murungi, Amason Kingi, Dalmas Otieno) to
prepare a Constitutional Amendment Bill to deal with this important requirement that is technically
impossible to achieve under the current stipulation.”

I’m assuming, and correct me if I am wrong, that the expression ‘under the current stipulation’
refers to the constitutional requirement that ‘not more than two-thirds of the members of elective
public bodies be of the same gender’ Article 81 (b). Which in real terms translates to requiring
that out of 290 MPs at least 96 be women. Or maybe the phrase is in reference to Article 27 (8)
which obligates the state to take ‘legislative and other measures to implement the principle that
not more than two-thirds of the members of elective or appointive bodies shall be of the same
gender? It’s difficult to discern the exact meaning.

Whatever the case,  the Cabinet’s solution to implementation of the gender balance provision does
not seem to involve finding solutions that would make it possible to implement the constitution
as is. Its seems the Cabinet would rather take steps to remove or change the requirement that
at least a third of the MPs in the next election be women through a constitutional amendment.
(Constitutionally parliament can change the constitution over a period of ninety days if a two third
majority support the amendment and after the amendment bill is publicised and public discussion
occurs). I wonder why that is?

As a concerned Kenyan and a woman who potentially stands to be adversely by the removal
or change of the gender balance requirement I would like an explanation on what is meant by
phrase ‘technically impossible’. Does technically impossible mean that there are an insufficient
number of qualified women who are willing to run for elective positions in the next general
election? Or, that the electorate will not vote for the women candidates? Or that parliament will
not effect legislation or take measures to ensure that gender balance requirement is met?

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.

On leadership

Posted by on 21st August 2011

Categories: 2012 Elections Kenya Constitution

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

Many people aspire to hold leadership positions and with the promulgation of the
constitution there is no shortage of positions that a qualified Kenyan can vie for. In
fact one can hardly throw a stone without hitting an ongoing recruitment process for
constitutionally created positions; whether its for the Attorney General, the Auditor
General and Deputy, the Judicial Vetting Board, the Independent Electoral Boundaries
Commission or any of the other 11 independent bodies to be established under the
new constitution.  To add to the appointive positions, whether premature or not, there
are ongoing campaigns for the myriad of elective positions in the next general election
president, Member of Parliament, senator, governor etc.

So while our some of our current leaders seem to embroiled one corruption scandal
after the other, bicker over devolution issues, who will control what funds in the devolved
system, whether or not to pay their constitutionally sanctioned taxes, threaten chiefs
who dare to give reports of famine/drought related deaths. All the while simultaneously
careening speedily towards missing the deadline for the passage urgent bills.

Almost one year since the promulgation of the constitution, less then a year till the next
general election and in light of the ongoing establishment of constitutional bodies now
seems as good a time as any to review the qualities we expect of our leaders whether
appointed or elected.

I think that all Kenyans expect that state officers acknowledge that the authority
assigned them is a public trust that vests in the State officer the responsibility to serve
the people, rather than the power to rule. That the authority is to be exercised in a
manner that is consistent with the purposes and objects of the constitution, and in a
manner that demonstrates respect for the people and brings honour to the nation and
dignity to the office; and promotes public confidence in the integrity of the office. We
also expect they abide by leadership and integrity principles of personal integrity,
competence and suitability objectivity and impartiality in decision making, not
influenced by nepotism, favouritism, other improper motives or corrupt practices;
selfless service based solely on the public interest, and accountability to the public
for decisions and actions; and commitment in service to the people. And no I didn’t
make this up this and a longer list is contained in article 73 of the constitution.

While the electorate are partly to blame for the state of affairs where leadership is
concerned we voted for them, two things are true, this is a new dispensation and things
are definitely changing, if not among the leaders then certainly among the electorate.

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)?

CIC Commissioners Salaries

Posted by on 18th July 2011

Categories: 2012 Elections Kenya Constitution

By Mzalendo Contributor – Moreen Majiwa

‘The government is not in support of the exorbitant figure of Sh1.3 million per month for the Chair of the Commission for the Implementation of the Constitution (CIC), Sh1.17 million for the Vice Chair and 1.14 million for the Commissioners. This translates to Sh10.4 million per month, for the commissioners alone, these rates are not only above normal for other state officials but unsustainable.”  Dr Alfred Mutua, the government spokesperson, said in an official statement following the government’s rejection of the salary structure for CIC commissioners proposed by the Public Service Commission (PSC).

The salary of CIC commissioners was the result of a negotiation between the Treasury, the PSC and the CIC in early May in accordance with Article 17 of the Commission for the Implementation of the Constitution Act 2010 which states: ‘Salaries and allowances payable to…. the chairperson and the members [of the CIC] shall, pending the establishment of the Salaries and Remuneration Commission, be determined by the Public Service Commission in consultation with the Treasury.’   Though the government has rejected the proposed salary structure the Commissioners of the CIC have argued that the amount proposed by the PSC falls within the Band A1 of the Constitutional Offices Remuneration Act of 2009 in which Band A1 means: ‘A salary scale commencing at Kshs. 399, 440 per month, increasing by 39, 940 per annum to Kshs. 439,380 per month; thereafter increasing by Ksh.43, 140 per annum to Kshs. 482,520 per month; thereafter increasing by Ksh.49,140 per annum to Ksh.531, 660 per month; thereafter increasing by Ksh.55, 140 per annum to Kshs. 586,800 per month; thereafter increasing by Kshs. 61,140 per annum to Ksh.647, 940 per month thereafter increasing by Ksh.67, 140 to Kshs. 916, 500 per month.’

The major implication of the government’s stance on the CIC commissioners’ salaries – which have not been paid for the last 7 months of service – means they  are unlikely to be remunerated until the matter is resolved.   The fallout from the failure of the government and the CIC to reach an agreement on the issue of commissioners’ salaries has resulted in long-standing delay in the hiring of CIC staff the CIC currently operates without a secretariat. More recently the CIC commissioners have stated that due to the ongoing salary dispute bills on Devolution, Police Reform, Lands, Leadership and Integrity will be shelved. With the next election less then 13 months away is there could not be a worse to shelve these particular bills.  The commissioners have also stated their intention to work on a part-time basis an act that will significantly slow down the implementation process.

While Dr. Alfred Mutua, communicating for the government, is right in stating that the commissioners salaries are above normal (Band A1 according to the Constitutional Offices (Remuneration) (Act 2009) is reserved for the Attorney General and Chief Justice, Commissioners e.g. those in PSC and IIEC, fall within Band A2 or A3).  If the PSC was consulting the Treasury in the CIC salary negotiations, surely the Treasury should have raised the fact that government can neither afford nor sustain such salaries and allowances during the negotiation stage and a more realistic and acceptable salary agreement reached.  If the CIC commissioners’ salaries were negotiated and agreed upon by the PSC, the Treasury and CIC, the commissioners have a right to expect to be paid the agreed amount.   A possible solution of course would be to pay the Commissioners’ the legally negotiated amount and tax both their salary and allowances, just like the salaries of every other Kenyan. But with the majority of the 212 MPs refusing to remit their taxes they have lost the moral authority to insist that other state officials be taxed? In all this confusion one thing is clear there clearly needs to be established an acceptable, affordable and sustainable salary scale for constitutional officers that is acceptable to both taxpayers and the state officers performing the service.

On Ministers holding Positions in Political Parties

Posted by on 24th June 2011

Categories: Kenya Constitution Political Parties

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

The head of the Constitution Implementation Commission, Charles Nyachae cited the reluctance of ministers to surrender office in political parties as one of the issues holding up the implementation of the constitution. So what’s the constitutional position?

Article 77 (2) of the constitution states: “an appointed State officer shall not hold office in a political party.” The clause is pretty straightforward and needs little explanation.

If this Article came into play immediately it would affect several high level politicians Deputy Prime Minister/Finance Minster Uhuru Kenyatta, Water Minister Charity Ngilu, Internal Security Minister/Acting Foreign Minister George Saitoti, Energy Minister Kiraitu Murungi, Medical Services Minster Anyang’ Nyong’o, Justice Minister Mutula Kilonzo.

The Prime Minister and the several ministers have disagreed with the Constitution Implementation Commissions position. The Minister for Justice, and Constitutional Affairs Mutula Kilonzo has argued that the provision barring state appointed officers from holding positions in political parties only kicks in after the 2012 elections a position supported by the other ministers involved.  However he has agreed to resign his party position if the other ministers mentioned resign as well.  This opposition is likely based on Article 3 (2) of the transitional and consequential clauses of the constitution.

This article deals with portions of old constitution that remain operational until the next general election:

Sections 30 to 40, 43 to 46 and 48 to 58 of the former Constitution, the provisions of the former Constitution concerning the executive, and the National Accord and Reconciliation Act, 2008 (No.4 of 2008) shall continue to operate until the first general elections held under this Constitution, but the provisions of this Constitution concerning the system of elections, eligibility for election and the electoral process shall apply to that election.”

The point of contention is the part that reads ‘provisions of the former Constitution concerning the executive’. The provisions of the former constitution that govern the executive do not explicitly mention the conflict that may arise from Cabinet Ministers holding executive positions in political parties, nor does it prohibit members of the executive from holding positions in political parties.  On a whole the old constitution is silent on the matter of whether ministers can or cannot hold party positions and cabinet simultaneously. The ambiguity means the field is open for virtually any interpretation. There’s the argument that instances of silence the spirit of the constitution should be followed.   Fortunately we now have a Supreme Court to untangle the conundrum.

Supreme Court 101

Posted by on 13th June 2011

Categories: Kenya Constitution

By Mzalendo Contributor Moreen Majiwa (@mmajiwa)

It’s been a busy week for judicial reform – the parliamentary vetting committee vetted the Public Service and Judicial Service Commission nominees for the positions of Chief Justice, Deputy Chief Justice and Director of Public Prosecutions. The COIC approved the candidates (the candidates will now wait for the approval of parliament before they are confirmed). Parliament approved the Supreme Court Bill without amendments (the bill now awaits presidential assent). The Judicial Service Commission is now in the process of whittling down to 5 the 26 candidates  (10 of whom are women), shortlisted for the positions of the Supreme Court Justice.

Though the constitutional deadline for the Supreme Court is not until the 26th of August this year, given the controversy over interpretation constitutional issues e.g.

  • The initial presidential nominations of candidates for Chief Justice, Attorney General and Director of Public Prosecutions
  • When the next elections should be held, August 2012, December 2012, February 2013
  • Whether or not the Finance Minister should have read the budget etc, etc.

Some would say the say the formation of the Supreme Court not only much needed but is overdue as well.

So what exactly is the Supreme Court? The Supreme Court will be Kenya’s new top court. All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court 163 (7).  It will be headed by the Chief Justice and will have six other judges but will require only five judges to sit at any one time.

The Supreme Court will hear appeals from the Appeal Court and any other court or tribunal as prescribed by national legislation. Though it will be able to determine its jurisdiction i.e. what cases to hear. Kenyans do have the right to appeal to the Supreme Court particularly with regard to constitutional matters or rights. So, if your rights are violated and you dissatisfied with the Appeal Court’s decision, your case must be heard by the Supreme Court. The potential for strategic litigation, and formation of new jurisprudence through the Supreme Court is immense.

The Supreme Court will also have two other specific roles: It will have exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President. In layman’s terms disputes regarding the election of the of President go directly to the Supreme Court, which will then be required to resolve the dispute within 14 days.

The Supreme court will also give advisory opinions on matters concerning county governments i.e. if there is uncertainty about which arm of devolved government is responsible for a particular function or about funding continue the Supreme Court could be asked for an opinion).

Article 14 of the recently approved Supreme Court Bill also gives the court a ‘Special Jurisdiction’ to within 12 months of the commencement of the Act review the judgments of any judge, removed by a presidentially appointed tribunal, or by the vetting process or who resigns or opts to retire as a result of a complaint of misconduct, or misbehaviour.