By Nyakundi Nyamboga
It appears the August House has decided to be maker and interpreter of the law.
What with House Speaker Kenneth Marende’s failure to file a Constitutional Reference in the High Court to determine whether executive authority of Government vests in the President even after the National Accord and Reconciliation Act.
Mr Marende’s ruling was historic, but he should have referred constitutional questions to the High Court for interpretation.
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In line with the principle of separation of powers, interpretation of the law is a preserve of the Judiciary. But the Judiciary cannot take up the task unless it is moved by a consumer of justice.
But Kenyans are waiting for President Kibaki and Prime Minister Raila Odinga to "consult" on the issue, which also involves determining who should be Leader of Government Business and chair the House Business Committee.
The President or his handlers could have approached the Attorney-General for advice to resolve the constitutional question — whether the Prime Minister plays in the same league as the President or Vice-President or is a super minister, first among equals.
A search at the website of the Office of the AG first leads you to the mission statement: "To advise the Government on all legal matters for purposes facilitating and monitoring the rule of law, protection of freedoms, democracy and efficient delivery of legal services."
If he has been approached over the Leader of Government Business impasse, the AG could be looking outside Parliament and the courts.
And the AG is streetwise. He caused a stir in 1992 by "innocently" replacing the words "not less than" with "not more than" in a section of the electoral law.
It took the intervention of the High Court following an application from a consumer of justice to halt the effect of the alteration.
Some politicians in the Opposition would have been time-barred from vying for the elections had the court ruled against it.
What is he likely to do in the present situation? He could most likely ask the National Council of Law Reporting to reprint the Constitution.
The newer version would then show that Section 15A is relegated to Part II of Chapter II of the Constitution of Kenya Act.
Before the National Accord and Reconciliation Act was entrenched in the Constitution, the top executive offices at Part I of Chapter II of the Constitution of Kenya Act were the President’s (Section 4-14) and Vice-President (Section 15). The rest of the ministers are provided for in Part II of Chapter II.
But in the Constitution of Kenya Amendment Act 2008, Section 15A — on the offices of Prime Minister, Deputy Prime Ministers and the National Accord and Reconciliation Act — appears at Part I of Chapter II.
Section 3A was also introduced in the Constitution, which elevated a statute — the National Accord and Reconciliation Act — above other sections of the Constitution. Never mind that section 15(6) of the Constitution repeats what Section 3A says.
The AG could also advise that older versions of the Constitution of Kenya Act be recalled.
If the National Council of Law Reporting reprinted the Constitution, it could look like an innocent re-arrangement of the numbers and chapters in the Constitution.
The AG can take chances.
If he pulled such a manoeuvre, the Prime Minister and his deputies would be relegated to the positions of minister.
It is debatable whether such alteration goes to the substance of the law.
I guess it could be the wish of the PNU that it does. Of course, ODM would not want to hear any of it.
Currently, it appears the Prime Minister enjoys executive authority through the National Accord and Reconciliation Act as opposed to executive authority bestowed on Kibaki.
One wonders whether it is for nothing that the drafters chose not to amend the Constitution at the onset of Part 1 of chapter II to read that there shall be a President, a Prime Minister and a Vice-President so that the issue of who, between Raila and the Vice-President, is senior, would not be subject of debate today.
They should also have re-looked Section 23 which vests executive authority of the Government of Kenya in the President.
Nothing would have been easier than amending it to include the Prime Minister.
Minister like any other
Please note that in the past week in Parliament, some legislators have asked to be told if the Prime Minister was not a minister like any other who should field questions at the floor of the House during the Prime Minister’s Time.
The Speaker is expected to make a decision on the matter in the near future.
It is instructive to note that such a scheme to reprint the Constitution would require a legal notice.
Would the AG do it? I doubt it. I also doubt the National Council of Law Reporting will throw caution to the wind.
The question that probably needs to be addressed here is whether the Attorney General has powers to revise laws.
The Revision of the Laws Act, at Section 8, gives the AG immense powers. Just to name a few: To allocate chapter numbers to new Acts and subsidiary legislation and arrange the Acts by chapters in such sequence and groups and in such order and manner as the Attorney-General thinks proper.
He has power to consolidate into one, two or more laws that are materially similar, making the alterations necessary in the consolidated law, and affixing such date as seems most convenient; to alter the order of sections in any law, and to renumber the sections of any law.
Power to alter
He has power to alter the form or arrangement of any section, either by combining it with another section(s) or dividing it into sub-sections; to divide any law into parts; to transfer any provisions in an enactment to any other to which the Attorney-General considers it more properly belongs; to shorten or simplify the phraseology of any law; to add a short title or citation to any law and to alter the long title, short title or citation of any law; to correct grammatical and typographical mistakes in copies of laws, and for that purpose to make verbal additions, omissions or alterations not affecting the meaning of the laws; to correct the punctuation in any law; to provide footnotes by way of amplification; to make such adaptations of amendments as a consequence of changes in constitutions of Commonwealth countries.
However, it is also clear here that this section warns he is not empowered to make any alteration or amendment in the substance of any law.
The Revision of the Laws Act, at Section 13, provides that the Attorney-General may, by order in the Gazette, rectify any clerical or printing error appearing in the Laws of Kenya.
The writer is Standard Group Associate Editor — Legal