Focus now shifts to the Implementation Commission team

By Stephen Makabila

After the fighting over the control of the Constitutional Implementation Oversight Committee (CIOC), focus by the two coalition partners now turns to formation of the Constitutional Implementation Commission (CIC).

Given National Assembly Speaker Kenneth Marende has maintained no Bills on the implementation of the new Constitution should find their way to Parliament before CIC is formed, there is urgency to have the team.

Legally, it is the commission that has to move the entire Constitution implementation process forward, with the CIOC only playing an oversight role.

Five days ago, House Speaker Marende and Justice Minister Mutula Kilonzo were reported to have disagreed, with Marende having insisted no Bill should come to Parliament before the commission is constituted.

Mutula’s ministry generated the Implementation Bill, the Vetting of Judges and Magistrates Bill and the Judicial Service Bill.

Out of the three Bills, only the Implementation Bill was allowed to go through the first reading in Parliament. Legal experts have supported Marende, arguing any tabling of Bills on the new Constitution in Parliament is un-constitutional.

“The new Constitution states clearly that Bills will be drawn by CIC in consultation with the Attorney General’s office, and not by any ministry. Marende’s interpretation is therefore right,” said lawyer James Mwamu, the Secretary of the East African Law Society (Eals).

Mutula has, however, warned that the country may fail in its first test of the implementation of new Constitution after Parliament rejected twice the Bill on the vetting of judges, which is expected to be a component of the Judicial Service Commission before October 27.

Fights and arguments

“There have been tremendous fights, meaningless fights and arguments. I have now been forced to write to the Leader of Government Business (Vice-President Kalonzo Musyoka), with a copy to the Attorney-General, the Head of Public Service (Francis Muthaura) and the Speaker,” said Mutula on Thursday.

He said he has written the letter to challenge and warn the leaders the country was going to fail its first test in the implementation of the new Constitution.

“The challenge is that you gave yourself a new gift on August 27 and now erosion will begin unless you find a miracle to get that body in place,” Mutula warned.

Unlike the CIOC, which is constituted by MPs, CIC would be constituted by non-MPs. People who served on the Committee of Experts (CoE) do not qualify to sit on the expected commission.

CIC is expected to consist of a chairperson and eight other members who have experience in public administration, human rights and government.

CIC is expected to stand dissolved five years after its establishment or at the full implementation of the Constitution as determined by Parliament, whichever is sooner, but the National Assembly may, by resolution, extend its life. Interests of the two coalition partners in the Grand Coalition Government, ODM and PNU, are likely to play out as attention turns to recruitment of the nine-member CIC.

First reading

PNU out-did ODM by taking the chairmanship of CIOC on Wednesday after Mandera Central MP Abdikadir Mohammed, who also chaired the Parliamentary Select Committee (PSC), was elected to the position. ODM rooted for Budalang’i MP Ababu Namwamba, who had deputised Mohammed at the PSC, but the Orange party failed. Yesterday, Mr Mohammed resigned from PSC chair, which Mr Namwamba took up.

Kimilili MP Eseli Simiyu, who is a member of the CIOC, said after the first reading of the implementation Bill in Parliament on Thursday was passed, the process of putting in place CIC will move on smoothly. “There was some level of opposition in Parliament but the Bill went through the first reading and we hope it will go through the second reading this week,” said Eseli.

Mr Mwamu however says because of the technicalities involved, the earliest the country can have an CIC may be mid next month.

On recruitment of CIC members, Mwamu said tradition by PSC has been that positions are advertised through a credible hiring body, names short-listed and forwarded to the Committee which in turn tables them in Parliament for either approval or disapproval.

While the PSC oversaw the hiring process for the CoE team, the CIOC will over-see the recruitment of the CIC members.

“Parliament can either approve or reject forwarded names for some reasons. If approved, the names would be forwarded to the President to appoint the commission members. The President has also some right to reject some of the names approved by Parliament for some reasons,” said Mwamu.

Senior Counsel Paul Muite had earlier told The Standard On Sunday that any MP wishing to serve on CIC has to resign from Parliament.

Eldoret based lawyer Titus Bitok says though the CIC recruitment was open, only Kenyans should be hired to serve on it.

“Unlike the CoE which had some foreigners, this time we should fully own the process as Kenyans,” Bitok said.