By Lillian Aluanga-Delvaux
A section of lawyers and the civil society are accusing the Executive and Legislature of creating an unholy alliance to circumvent the Constitution.
The latest move by MPs that kicked up a storm was on contentious amendments to Elections Act and Political Parties Act that would have allowed party hopping. Parliament also amended laws that would allow for the transfer of powers of vetting magistrates to the Judicial Service Commission. Currently the Judges and Magistrates Vetting Board do this.
The Statute Law (Miscellaneous Amendments) Bill 2012 was passed by Parliament but rejected by President Kibaki on the basis that some of the changes touched on issues that were subject of court proceedings.
Its return to the floor of the House saw MPs vote to disallow party hopping, but struck out a requirement that would have seen those without a university degree barred from seeking parliamentary seats.
Besides pushing for the nomination of candidates who lose in the presidential race, there are also fears of a plot to water down Ethics and Integrity requirements of public officers as spelt out in Chapter Six of the Constitution.
Prime Minister Raila Odinga termed ‘unconstitutional’ changes to the Political Parties Act, which would have seen MPs easily shift parties thus defeating the purpose of instilling discipline in the political outfits as covered by Article 103 of the Constitution.
Besides Election and Political Party laws, other key legislation where proposals made by Parliament have raised eyebrows include those on devolution, national security, and management of public funds.
But it’s not just the Legislature that is being accused of trying to side step the Constitution.
The Executive too is under the spotlight, for allegedly ‘pushing for legislation that waters down devolution’. In February, President Kibaki declined to assent to the County Governments Bill, arguing it was unconstitutional. In his argument the President said proposals in the Bill, which would have seen provincial administrators report to county governors, had transferred the functions of the national government to the county government.
While his position was supported by Attorney General Githu Muigai and the then Justice Minister Mutula Kilonzo, it was criticised by some MPs who questioned why the President had earlier assented to the National Police Service Bill and recognised the county equivalent of the National Security Council.
