No cheers as ‘Katiba’ anniversary marked

By Mwaniki Munuhe

Monday marks the second anniversary since Kenyans promulgated the Constitution in what was largely seen as ushering in a new dawn of transparency and accountability in governance.

The event, held at Uhuru Park, Nairobi, on August 27, 2010, united the country in making a decision to build a new republic devoid of corruption, impunity and other vices characteristic of a dysfunctional democracy.

President Kibaki and Prime Minister Raila Odinga led other leaders including MPs in giving a solemn pledge to implement the letter and spirit of the Constitution faithfully.

However, two years later, constitutional infidelity is perhaps the most visible in the entire process of operationalising the document whose original content, if faithfully implemented, would have rescued the country from impunity.

The second anniversary comes only three days after Parliament qualified a move by the Cabinet to mutilate the Leadership and Integrity Bill, effectively lowering the standards envisaged under Chapter Six of the Constitution.

Whereas Kenyans voted in the Constitution with the hope of having leaders of high moral standards through a credible vetting process, Parliament moved to negate this expectation by refusing to be vetted.

However, MPs are not off the hook yet after it emerged the Leadership and Integrity Bill could be unconstitutional and can easily be nullified by the courts.

Law Society of Kenya chairman Eric Mutua says the assumption by MPs that vetting can be avoided is a misconception because the provision of the Constitution itself supersedes those of an Act of Parliament and that where an Act is in conflict with the Constitution, the latter will prevail.

“The whole debate of avoiding vetting is a misconception. You cannot legislate for leadership and integrity and avoid vetting. The Constitution supersedes an Act of Parliament. You legislate to operationalise the provisions of the Constitution and not the other way round. This act is unconstitutional,” he said.
 

Integrity Bill
And in what appeared like an indication that Commission on the Implementation of the Constitution (CIC) may actually end up in court over the Leadership and Integrity Bill, commissioner Kamotho Waiganjo speaking to The Standard On Sunday on telephone said: “The passage of laws with provisions that violate the Constitution like the Elections Act and the Political Parties Act has been a big challenge. We are now concerned about the content of the integrity law and whether it will meet the constitutional threshold. Where there has been law that offends the Constitution, it has made it necessary for the CIC and other civic minded Kenyans to seek court intervention.”

MPs last Thursday voted to allow suspects of serious crimes to contest for public positions without reference to their conduct whatsoever.

The original Leadership and Integrity Bill as drafted by CIC, would have seen those contesting public office undergo vetting by Government bodies, declare their wealth 30 days upon elected or appointed to office, on annual basis and 30 days after quitting such office with those violating this provision risking a jail term of one year or Sh5 million in fine.

Speaking to The Standard On Sunday in a telephone interview, Attorney General Githu Muigai said: “Under the Constitution, the ultimate decision of the content of Government Bills is determined by Cabinet. Prior to the presentation to Cabinet, Bills receive input from line ministry, in this case the Ministry of Justice, Kenya Law Reform Commission, CIC and technical support from the Attorney General’s office. The Bills that are finally presented to Parliament reflect what the Government believes represents a consensus that can pass through the House. Most times, these Bills do not represent the ideal; they represent what Parliament would enact without creating a crisis especially where constitutional timelines exist. I published the original Bill because I was satisfied it was viable. But the ultimate legislative authority is with Parliament. Cabinet can receive advice from the AG or CIC, but Cabinet will make the decision expected of it under the law.”

Mr Mutua said only the Judiciary has performed exemplary well in implementation of the Constitution. He said the Executive and Parliament has performed dismally.

“In terms of implementation, on a score card I would give five out of 10.  Judiciary has been exemplary, the public has kept vigil and I am happy about that. The Executive does not seem to know things have changed in terms of how it should relate with other arms of Government. Parliament has been a disaster although they have kept timelines,” he said.
 

Adamant Executive
Mutua’s sentiments were supported by Waiganjo, who blamed sections of Executive for refusing to embrace change. Waiganjo said: “The challenge is with senior levels in Government who still have not really embraced the reality of the new constitutional order. That is, however, changing though in a process like this, there will be non-reformist remnants. Fortunately as time goes, these are increasingly in the minority.”

Waiganjo, however, said the country is largely on course especially in law making but some areas, he added, have slowed down among them police reforms where appointment of the heads of this key institution are yet to be done.

Others include setting up of key institutions such as the Ethnic and Anti-corruption Commission, which is a cause of concern considering the latter’s role in enforcing Chapter 6. It will be remembered that Parliament also voted to allow party hopping through an amendment proposed by Gachoka MP Mutava Musyimi in the Elections Act but President Kibaki rejected the move.

“Until after the first election held after the commencement of this Act, nothing provided for in subsections (4), (5) or (7) of section 14 shall be construed as requiring a person to vacate his or her seat as a Member of Parliament or of a Local Authority, or as disqualifying any person from eligibility to contest in an election under this Act,” read  amendments by Musyimi.

Nevertheless, MP’s still managed to reduce the time within which one can shift from one party to another from the original six months to three months. Other attempts to further mutilate the Elections Act had been made although without success.

For instance, although the Constitution envisaged a presidential candidate would not have the benefit of vying for any other elective position including being an MP, Chepalungu MP Isaac Ruto wanted this negated.

Ruto’s unsuccessful amendment read: “Notwithstanding any other provision of this Act and for the avoidance of doubt, a person who is nominated as a candidate for election as president or deputy president is nevertheless eligible for nomination and may contest as a candidate for any other elective seat in the same elections.”