BY NJOKI NDUNGU
I am one of the Kenyans worried that our battleship of great reforms, the Constitution, appears to have a snail instead of a sail, moving at the pace of the former not the latter.
Its implementation has been characterised by lethargy, peppered with spicy moments of political contest that quickly become infected with malaise of the type that results in paralysis. Even as different opinions emerge as to whether elections will held in August next year, I am slowly leaning towards predicting that there will be no General Election next year.
This position, however, is not informed by the law. It is simply the gloomy conclusion made when one calculates the number of bills, structures, and processes that need to be in place for the next General Election to actually happen, with the fact that Parliament, with its complex procedures of enacting laws, is at least seven months behind schedule.
Certainly, if the tug of war in the Coalition Government continues to stall key appointments, there is no way the necessary legal framework required to hold a General Election next year can be completed. I did, however, perk somewhat listening to the President’s address to Parliament this week. Many of the Bills he mentioned as being in the pipeline from Cabinet to Parliament relate to the implementation of the Constitution. He also spoke to less focus on wrangling and more on legislation. That notwithstanding, I have a couple of observations to make.
The first is on the reference to a Supreme Court Bill and Other Superior Courts Bill. Given the scarcity of time and need to avoid duplication, it would be wiser for the Attorney General to bring amendments through his usual hotpot of a Statute (Miscellaneous) Amendments Bill to the Judicature Act CAP 8 and the Appellate Jurisdiction Act, CAP 9.
This will do the same job and save both Parliament, the end users — the legal profession, and Prof Wangari Maathai’s Greenbelt Movement a lot of time, work and paper. Besides, the rules of courts are now the business of the Judicial Service Commission as recently approved by the House in the Judicial Service Commission Act. We really should leave the details of organising the courts to them.
Secondly, it is a relief to hear that the Independent Electoral and Boundaries Commission Bill is being fast tracked in order to set up the necessary constituency and ward boundaries required for the next General Election. There is, however, an ominous omission.
Under Articles 184 and 200 of the Constitution, Parliament must pass a law setting out the criteria for classifying cities and urban areas, and their governance. Without this law, the commission even if appointed, cannot proceed to delimit the boundaries of electoral units. Without the boundaries, there can be no registration of voters, without which there can be no election. Yet there was no mention of such a Bill on the President’s list.
Similarly, Section 15 of the Sixth Schedule lays out in detail the legislation that lay out criteria, timeframes and structures that must be in place before functions can be devolved to the counties.
Delay in this legislation will only result in the untidy situation of having elected officials in the county governments with no legal framework giving them capacity to function. Surely, we must know WHAT we need to have in place before the next General Election; and HOW we intend to set up the processes required by that election, before we can even start the debate on WHEN to hold it.
(The writer is an advocate of the High Court. This article was first published on The Standard.)