, NAIROBI, Kenya, Aug 2 – A member of the team that drafted Kenya’s acclaimed new Constitution has criticised the Cabinet for altering crucial implementation Bills without consulting the Commission for the Implementation of the Constitution (CIC).
Atsango Chesoni, who was the Vice Chairperson of the defunct Committee of Experts on Constitutional Review, asserted that the CIC was mandated by the Constitution to provide technical support to the implementation process and its role cannot be overlooked.
Ms Chesoni explained that the CIC, under the supervision of the Parliamentary Constitutional Implementation Oversight Committee, had the overall responsibility of facilitating, monitoring and overseeing the development of legislation required for the implementation process.
She added that the CIC was also supposed to coordinate with the office of the Attorney General and the Kenya Law Reform Commission in preparing and tabling Constitutional implementation legislations in Parliament.
“The reason why the Bills have to go to the CIC is because they need to ensure that they are technically sound, so it is important for the Cabinet to respect the mandates of the other institutions and accept the fact that they do not have expertise in all areas,” she said.
She also observed that the Cabinet risked making grave mistakes in the implementation process by failing to check with the CIC.
The CIC has already mentioned the enacted Independent Electoral and Boundaries Commission Act, the Political Parties Bill and the Bills on Article 59 commissions as some which were changed by the Cabinet and which would now contravene the Supreme law.
“If you come up with Bills that violate the Constitution, then they are of no use to us because the Constitution is the Supreme law,” Ms Chesoni argued.
She also expressed concern at the emerging tussle, saying that the implementation actors had to work together to ensure Kenyans realised the full gains of the Constitution.
She explained that the CIC was supposed to neutralise any politics that could come into play in the implementation process.
“The idea behind the CIC was to have an independent, objective arm that presumably doesn’t have any partisan interests in the process. But ultimately this is not supposed to be a competition and you cannot avoid the CIC,” she said.
Justice and Constitutional Affairs Minister Mutula Kilonzo had on Tuesday morning insisted that the Cabinet carried the ultimate voice in the implementation process maintaining that it did not require the consent of the CIC before revising any Bill.
Mr Kilonzo cited Article 3 under the Sixth Schedule of the Constitution saying it gave the Cabinet the right to independently change Bills. Article 3(1) states that “Until Parliament passes the Act anticipated in Articles 15 and 18, Section 93 of the former Constitution continues to apply.”
However, the sections of the old Constitution that are cited in Article 3 do not make any reference to the Cabinet’s role in the implementation process.
The Articles make reference to elections, the constitution of Parliament, voter information, electoral disputes, the Parliamentary Service Commission, taxation and monetary laws, the President place in Parliament, the official languages of Parliament and Parliamentary Standing Orders.
“The Executive has every right to enrich any Bill by altering it. In fact Cabinet has the right to reject a Bill and if you look at the provisions regarding the CIC, their work is to formulate, coordinate and follow up on legislations; it’s not even drafting,” Mr Kilonzo had said.
Ms Chesoni however discounted the argument saying that Parliament held the legislative powers and not the Executive.
Mr Kilonzo also announced that the Cabinet committee on the implementation of the Constitution would meet on Thursday to discuss seven Bills among them the Police Bill and the Ethics and Anti Corruption Commission Bill.
He said that the committee had been forced to reschedule its meetings severally due to lack of quorum.
“We were to meet yesterday and also today morning but the meetings were put off because unfortunately most of my colleagues are out there supporting their presidential candidates asking for votes which I think is a bit pre-mature,” he charged.
The Justice Minister also expressed concern over the Elections Bill and the Anti Corruption Commission Bill which he accused the CIC of diluting. The CIC has also in recent pasts accused the Cabinet of diluting Bills.
The wrangles between the two institutions are raising concern. The CIC and Mr Kilonzo have been summoned to appear before the Constitutional Implementation Oversight Committee over the tussle.