Uncertainty over implementation of law as CIC term expires

There are questions about the fate of the implementation of the Constitution now that the term of the agency mandated to oversee and protect the process expires.

The Commission for the Implementation of the Constitution (CIC) ceases to exist at the end of the five years it has been in operation since the promulgation of the Constitution in 2010.

It is not yet clear which institution will take over CIC's work after MPs voted against extending the term of the commission without providing an alternative.

Recently, CIC Chairman Charles Nyachae claimed that there would be a vacuum in the implementation of the Constitution once its term ends.

Mr Nyachae said without an independent body to oversee the implementation and guard against vested interests of politicians, there was high likelihood that the document would not be implemented at best and at worst, its progressive provisions be undone.

"I wish to remind Wanjiku, Moraa, Mueni, Atieno, Nanjala that this is the moment for you to discharge your mandate to respect, uphold and defend your Constitution. It is the time for you to maintain the highest level of vigilance and hold accountable all those to whom you have delegated your sovereign power," he said yesterday.

He added: "Over the last five years, there have been too many instances of Parliament, and in particular the National Assembly, acting in complete disregard, indeed contempt, for the letter and spirit of the Constitution."

Nyachae noted that the full implementation of the Constitution was still a long way off and without adequate mechanisms in place, Kenyans may not gain from its many progressive provisions that were envisaged by its drafters.

He said no arm of government, including the Executive and Legislature, can be trusted with the work of implementing the Constitution on behalf of Kenyans due to their vested interests. But civil society leader Morris Odhiambo said implementation of the Constitution will not necessary suffer negatively.

He said other institutions including the Kenya Law Reform Commission can take up CIC's role provided their work is strengthened by a vigilant civil society, Kenyans and political parties.

"The main avenue CIC has relied on heavily has been the courts. This can still be done by other bodies. Kenyans should not be worried too much about the expiry of CIC's term," Mr Odhiambo, who is the President of the National Civil Society Congress, said.

Odhiambo noted that CIC scored poorly in its mandate to safeguard the Constitution from mutilation and will not necessarily be missed by those who closely followed the implementation of the supreme law. He said the only job CIC did fairly well was the process of co-ordinating the drafting of bills.

Settle scores

Chris Gitari, a human rights lawyer with the International Centre for Transitional Justice in Nairobi, termed the expiry of CIC's term as a huge blow for the implementation of the Constitution. He said CIC's term was not renewed by MPs simply to settle scores since the commission was highly critical of the conduct of MPs with regard to implementing the Constitution.

"Even though the mandate of CIC can be given to another body, it would have been better to simply extend CIC's term since it had the capacity and institutional memory to handle this sensitive mandate," he said.

Mr Gitari said other bodies that have been proposed to take over the work of CIC may have other heavy mandates that may make them unable to discharge additional jobs effectively.