NAIROBI, Kenya, Aug 25 – The Commission for the Implementation of the Constitution (CIC) has now obtained orders stopping debate on two crucial Bills on financial management.
The CIC argues it was not consulted as the Bills were rushed to Parliament in utter disregard of the Constitution.
Through lawyer Njoroge Regeru, the CIC told the court that the Cabinet acted illegally and asked the court to stop the Attorney General and Speaker of the National Assembly from allowing debate on the Contingencies Fund and County Emergencies Bill as well as the National Government Loans Guarantee Bill.
“Unless restrained, the 1st Respondent (Attorney General) will continue with his illegal and constitutional acts, which will lead to the 2nd Respondent (Speaker) acting in an equally illegal and unconstitutional manner resulting in illegal and unconstitutional Acts of Parliament,” Mr Regeru told the Court.
Even as the court issued the orders Parliament continued the debate on the two controversial Bills which were introduced to Parliament on Thursday morning and by afternoon were already being debated after the Second Reading.
The CIC had on Tuesday announced that it would take the Cabinet to court for circumventing its role in the implementation process and rushing the Contingencies Fund and County Emergencies Bill as well as the National Government Loans Guarantee Bill without following the principles set out in Section 14 under the Sixth Schedule of the Constitution.
CIC Chairman Charles Nyachae accused the Cabinet of mischief arguing that it was flouting Article 261 (4) of the Constitution and Section 14 under the Sixth Schedule.
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 legislations.
Mr Nyachae explained that although his commission had met with the Executive on Monday, where the Cabinet decided to have the two separate Bills. The CIC advised against their approval saying there was need for extending their deadline to allow for more dialogue. On Saturday the CIC called for a 30 day extension of time citing the implications it would have on the devolved government if they were rushed.
“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 saying that it had approved them for publication,” he noted on Tuesday.
“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 added.
On Wednesday the commission convened a joint stakeholders’ meeting over the Bills and later wrote an advisory communicating its concerns over the Bills. The letter was sent to the President, Prime Minister, House Speaker as well as the Attorney General.
The standoff was not resolved forcing the CIC to file its application under a certificate of urgency.
The court action comes at a time when Parliament has made great strides in an attempt to beat the August 26 deadline. The House has been sitting for extra hours and managed to shorten the publication periods of three policing Bills. On Thursday MPs managed to pass a record six Bills a little over two hours.
CIC Commissioner Kamotho Waiganjo however argued that it would be pointless for Kenyans to pass all the Bills to meet the timelines without adequately scrutinising their quality.
“There are key issues that remain outstanding and the view of Cabinet alone or even Parliament alone is not sufficient. These issues need to be subjected to stakeholder involvement; we cannot rush the Bills to meet one deadline but violate the precise constitutional provision,” he argued.
The implementation commission also warned of significant repercussions of implementing the two Bills without resolving the uncertainty surrounding their frameworks.
Mr Waiganjo explained that the definitions issued in the Contingencies’ Fund Bill needed to be cleared while at the same time clarifying who would determine contingencies at both the county and national government levels.
Mr Kamotho also observed that there was a critical need to establish the correlation between the two governments in relation to the Contingencies Fund.
“How does utilisation of contingencies fund affect decision making processes at the counties as opposed to national government? What will be the nature of consultative processes so that you ensure that devolved governments are involved in determining how contingencies funds are utilized?” he posed.
He also raised concern with the question on whether county emergency funds would be extracted from the county allocation or whether they would come from the general Contingency Fund.
He further observed that the Loans Guarantee Bill needed further scrutiny arguing that it was important to set a criterion on how the law would be applied as it was lacking in the Bill.
The Bill allows the state to guarantee loans taken by private entities, such as banks, and the government risks losing money from the Exchequer if such entities default on their loans.
“How will the government determine who to guarantee especially in relation to counties? How is that decision going to be made? Is it entirely on the basis of national government decision or is there a framework for discussion and consultation between the national and county governments?” he asked.