By ALEX NDEGWA

The stalemate over a key devolution Bill could cause a constitutional crisis and risk Parliament’s dissolution should anyone raise a challenge in court.

In February, President Kibaki rejected the County Government Bill, one of the laws passed as part of efforts to implement the Constitution proclaimed in 2010. Claiming that it had some unconstitutional provisions, Kibaki referred it back to Parliament for revision.

But it has since been in limbo. Some MPs are not keen on the President’s amendments, which are interpreted as undermining devolution. However, they are in a dilemma because they risk being sent home if the law is not enacted. And with the President’s memorandum frozen in the House for the third month, MPs are in violation of parliamentary rules of procedure.

Under Standing Order No 125(6), the House is required to consider and deliberate on the memorandum within 21 days upon receipt from the President.

Speaker Kenneth Marende presented the President’s memorandum to the House on February 29 and referred it to the Local Authorities committee, whose report is yet to be discussed. On Saturday, MPs interviewed by The Standard On Sunday conceded if the deadlock persists, it could invite court action to compel Parliament to pass the Bill.

Although the House passed the Bill on February 23, four days to the expiry of 18-month deadline, it is not yet law because of the President’s objections.

If Parliament fails to enact any particular legislation within the specified time, the Constitution provides that any person may petition the High Court on the matter. The court will compel the House to enact the required legislation within a specified period failure to which the Chief Justice shall advise the President to dissolve Parliament.

A Motion to extend the constitutional deadline to facilitate review of the memorandum flopped last week because the House could not muster the requisite 65 per cent majority (148 MPs). The extension became necessary after MPs blocked the initial consideration of the memorandum arguing reopening debate outside the February 27 deadline is unconstitutional.

The Government failed to re-introduce the Motion last week, prompting accusations of a conspiracy to derail devolution on the backdrop of controversy over appointment of 47 County Commissioners.

Gwassi MP John Mbadi claimed some forces in Government who are reluctant to have the Bill passed to frustrate devolution are jubilant about the deadlock.

“Frankly, pressure has to come from Kenyans. Somebody should go to court so that Parliament is compelled to pass the law,” Mr Mbadi said. “The 18-month deadline has long passed and we are in breach of the Constitution. Only when threatened with dissolution of the House will the Government and Parliament move with speed.”

Chairman of Parliament’s Legal Affairs Committee Njoroge Baiya said the Executive and Parliament were “at default”.

“The law will not make a distinction between inability to mobilise support and reluctance to pass the Bill,” Mr Baiya said. “We are at default and the citizens should act to get the legislation in place.”

Budalang’i MP Ababu Namwamba argued Parliament had fulfilled its mandate to pass the Bill within the timelines and it should not be punished for the Executive’s reservations.
“But Kenyans have become so litigious. I wouldn’t be surprised if some busybody was to rush to court. I would be surprised though if the court were to advise on dissolution of Parliament.”

The ODM Parliamentary Group Secretary said Parliament has no option but to consider the President’s memorandum. “My worry is that the Government does not appear keen on the matter,” he said.

Mbadi signalled the MPs are ready to compromise with the President because the grandstanding was not helpful to either of the parties.

“To raise the requisite 148 MPs required for the Motion is not easy if the Government is not committed to the cause. We can compromise so that we realise devolution. This Bill is at the heart of devolution,” he added.

President Kibaki rejected amendments introduced to the County Governments Bill saying they infringed on security and Provincial Administration functions of the National Government.

Overrule president
He rejected Clause 31(1) of the Bill, which empowered the Governor to chair the county equivalent of the National Security Council.

The President stated the provision violated Chapter 14 of the Constitution, which places the National Security Council under the national Government.
He also opposed Clause 54(2) of the Bill, which provided for the redeployment of the Provincial Administration to counties.

MPs had amended the Bill to have District Commissioners serve in the county governments as sub-county administrators, District Officers as ward administrators and chiefs or sub-chiefs as officers of the further decentralised unit. The President said the MPs acted illegally since the power to restructure the Provincial Administration is vested in the national Government.

“Within five years after the effective date, the national Government shall restructure the system of administration commonly known as the Provincial Administration to accord with and respect the system of devolved Government established under the Constitution,” he cited the Constitution.

He argued Clause 54(1) stating further structures of decentralisation shall include locations and sub-locations was unconstitutional because the Constitution mandated creation of these structures on the respective county governments.

To overrule the President’s objections, the House resolution must be supported by votes of not less than 65 per cent of all MPs (145).