By Nicholas Kamwendwa

The Constitution of Kenya stands out shoulder to shoulder among the most progressive in the world. Since its enactment  in 2010, this beautiful piece of governance is among the most searched documents, as informed by thousands of hits daily on Internet search engines.

The Fifth Schedule to the Constitution sets out timelines within which various legislation ought to have been enacted but there has been a mad rush to fast track the exercise and for obvious reasons.

This  is understandable, in view of the opportunities, challenges and cupidity for economic rent that was easily discernable with this new supreme law.

The foregoing is notwithstanding the fact that under the Section 7(1) of the Sixth Schedule (Transitional and Consequential Provisions) to the Constitution all the laws in force before the effective date of the constitution are still in force and can to be construed with such alterations, qualifications and exceptions necessary to bring them into conformity with the Constitution.

In the process, either for mischievous purposes and or ignorance of the law that ought to be conformed to the constitution, certain legislations have been passed which in my opinion cannot stand the test of constitutionality or are deliberately intent to mutilating the very constitution they seek compliance to.

Two cases attest to this. The first is an Act of Parliament known as Agriculture, Fisheries and Food Authority Act, 2013. The Act has been accented by the President and is due for implementation.

In my view, the foregoing Act falls under the category of general legislation which ought to be enacted within 5 years from the effective date of the Constitution (the Fifth Schedule to the Constitution).

Under Section 1 thereof, the Act shall come into operation on such a date as the Cabinet Secretary may, by notice in the Kenya Gazette, appoint.

The Cabinet Secretary is mandated to operationalise the Act within six months from the date of its Publication but the Secretary may appoint different dates to operationalise different provisions.

In the preamble thereto, the Agriculture, Fisheries and Food Authority Act, 2013 is intended to: Provide for the Consolidation of all the Laws on the Regulation and promotion of agriculture generally; To provide for the establishment of the Agriculture, Fisheries and Food Authority; make provision for the respective roles of the national and county governments excluding livestock and related matters in furtherance of the relevant provisions of the Fourth Schedule to the Constitution and for connected purposes.

From the foregoing is clear beyond peradventure that the Act has inter alia consolidated all the laws on the regulation and promotion of agriculture generally.

Ironically what is not clear from the Act is whether the existing laws in the Agriculture, Fisheries and Food sector, in particular the Crops Act and the Fisheries Act as mentioned under Section 2 thereof, have been repealed by virtue of the enactment of the said Act.

Of paramount concern is that under Section 3 of the new Act, there is to be established an entity known as Agriculture, Fisheries and Food Authority whose functions and powers are set out under Sections 4 and 6 thereof respectively.

The management of the Authority is vested in a board under Section 5 thereof and among the notable members of the Board is the Director General, who is intended to be the secretary to the Board and CEO of the authority.

Two centers of power

In furtherance of the mischief alluded to, an amorphous and monolithic demagogue in the office of the Director General has been created under Section 10 of the said Act.

In my opinion, all parastatals and departments within the ministry shall be within the ambit and/or under the authority and control of the Director General. This is notwithstanding the fact that the Constitution contemplates that there shall be a Principal Secretary in charge of matters relating to Agriculture, Fisheries and Food.  Has the Act not in essence created two competing centers of power within the ministry?

The ministry in charge of the Agriculture, Fisheries and Food is very key to the advancement of the Jubilee manifesto but in light of the foregoing it is amenable to being torn apart due to the competing centers of power.

I am no prophet of doom, but in my opinion, if the foregoing position is allowed to obtain, Kenyans are likely to be subjected to jostling they have been subjected for the past five years when there was two centers of power in the coalition government. Why was the rush to enact this legislation in its present state given the constitutional timelines alluded to?

But this is not an isolated case. Another draft legislation is about to be tabled in Parliament with the proposal that will render the Kenya Roads Act 2007 irrelevant.

The new draft proposes that Kenya Urban Roads Authority, its National Highways and Rural Roads be consolidated under one director general.

Unless of course there are other undercurrents, some of these laws must conform to known management norms.

They must never look like an attempt to defeat the very purpose of the Constitution as promulgated in 2010.

Unless of course there is a strategic thinker out there, being fronted for certain positions through the back door, this law has no place in modern Kenya.

It would appear that in our bid to implement the Constitution, we ignored crucial issues such as sensitising senior civil servants on application of devolution and interpretation of the law.

Writer is an Advocate of the High Court.