NAIROBI, Kenya, Aug 24 – Barely hours after the Cabinet approved the publication of the final two Bills crucial to the implementation of the new law, the commission mandated to oversee the process has dismissed them as ‘unconstitutional’.
Commission for the Implementation of the Constitution (CIC) Chairman Charles Nyachae told a hurriedly convened press conference on Tuesday evening that they were mulling court action to stop the Executive from circumventing its role in enacting the Contingencies Fund and County Emergencies Bill 2011 as well as the National Government Loans Guarantee Bill 2011.
The Cabinet wants the two Bills are supposed to supersede the contentious Public Finance Management Bill.
Mr Nyachae accused the Cabinet of undermining his commission’s role by approving legislation without consulting it, saying that it was flouting Article 261 (4) of the Constitution and Section 14 under the Sixth Schedule.
Article 261 (4) and Section 14 under the Sixth Schedule all indicate that the CIC must be consulted and involved in the implementation of Bills.
“If the government purports to proceed to publish these Bills, in contravention of the Constitution then CIC intends to go to court to protect the Constitution and we can even go tomorrow (Wednesday),” he said.
“We think that the actions of Cabinet, in this respect, are made in bad faith, they are contemptuous of the CIC, the Constitution and the people of Kenya,” he stated.
Mr Nyachae explained that although his commission had met with the Executive on Monday over the then Public Finance Management Bill, the CIC advised against its approval.
Article 14 (2) under the Sixth Schedule further states that laws touching on devolution may only be enacted after the CIC and the Commission on Revenue Allocation have been adequately consulted and their recommendations forwarded to Parliament. It also states that the two commissions shall be given at least 30 days to consider such legislation.
The Finance Bill has been at the centre of a tussle between the ministries of Local Government and the Treasury. The two institutions failed to harmonise their policies on devolution and finances, respectively, in order to get an integrated Public Finance Management Bill.
Mr Nyachae further pointed out that the Cabinet decided to do away with the Public Finance Management Bill but have two distinct stand-alone pieces of legislation to give effect to Article 208, on the Contingencies Fund, and Article 213, on Loan Guarantees, to meet the tight deadlines.
“We (CIC) received those two draft Bills from the Attorney General on Tuesday afternoon and we decided to start working on them immediately. It was therefore something of a rude shock to us when we saw that communication from the Presidential Press Service,” he noted.
The CIC also announced that it would hold a meeting with stakeholders on Wednesday morning to review the two Bills and also provide room for public participation.
Mr Nyachae further observed that when the Judicial Services Bill and the Vetting of Judges and Magistrates Bill were first tabled in Parliament, before the CIC was constituted, the Cabinet was forced to withdraw them.
“It was accepted that because the CIC was not part of the process, then it was in violation of the Constitution. That principle was accepted by all parties at the time so it is not possible that we can now purport to read the same provisions of the Constitution in any other way,” he said.
He also said that it would have been better for MPs to extend the constitutional deadline rather than rush the Bills to beat the timelines.
The Constitution Implementation Oversight Committee (CIOC) had earlier insisted that MPs would meet the deadline by increasing their sitting time, shortening the publication period of Bills as well as shorten question time to 30 minutes.
CIOC Chair Abdikadir Mohammed proposed that MPs sit on Thursday morning as well as Friday morning to pass 10 Bills that are still pending. He also assured Kenyans that the Bills passed would be constitutional.
“The important bit is that substantive work has gone into these Bills; they are not just being picked out of the oven right now and rushed through,” he quipped.