Kenya's law not fully in place, but so far so good

Five momentous years have passed since the 2010 Constitution was promulgated. The 2010 Constitution envisaged that the exercise of transition from the 1962 Constitution to the 2010 Constitution would be complete by midnight today.

The 2010 Constitution set time limits, spanning from one to five years, within which statutes dealing with various issues should have been enacted under the Fifth Schedule of the Constitution.

The Commission for the Implementation of the Constitution, established under Article 5 of the Sixth Schedule started its operations on January 4, 2011, with the main objective of working together with the Attorney General and Parliament to ensure the Constitution is implemented in the correct manner and in accordance with the timelines set by the Constitution.

The commission has made considerable contribution to the enactment of legislation under the Constitution as well as its proper implementation and will cease to exist on January 3, 2016. The phenomenal legislative changes have resulted in over 191 Acts being enacted, 12 in 2010, 41 in 2011, 55 in 2012, 50 in 2013, 23 in 2014 and 10 this year.

For instance, legislation dealing with election and electoral disputes, vetting of judges and magistrates, citizenship and corruption were all to be enacted within one year of the promulgation of the 2010 Constitution. Acts such as the Elections Act, Judges and Magistrates Vetting Board Act, the Kenya Citizenship and Immigration Act and the Ethics and Anti-Corruption Commission Act respectively were enacted in 2011, adhering to the timelines set.

Other Acts such as the Consumer Protection Act, 2012 had a time specification of four years. The Land Act, Land Registration Act and National Land Commission Act, all of 2012, had a time specification of five years and others have been promptly passed in accordance with the specifications provided under the Constitution. All the State organs, the Senate, the National Assembly, the Cabinet, the county governments, the Judiciary, the Attorney General, the Director of Public Prosecutions, the National Police Service and its oversight body are now well entrenched under respective legislation. Thirteen commissions under Chapter 15 are now functional, Ethics and Anti-Corruption Commission being the only one not included in Chapter 15.

Fortunately, the relief under Article 261 (5) which provides that: "If Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter" has never been sought so far.

There are cases, however, where the Constitution has been breached; for example, under Article 50 Parliament was to enact legislation in respect of the conduct of a fair hearing and under article 51(3) Parliament was to enact legislation in respect of the rights of persons in custody or detained. These pieces of legislation were to be enacted within four years of coming into force of the Constitution.

There are other grey areas which have no mandatory time limits where urgent action is still required. For instance Article 23 (2) provides that Parliament shall enact legislation giving subordinate courts original jurisdiction to hear and determine certain human rights cases. This is yet to be addressed.

It is of great interest to note that three attempts have been made to amend the Constitution though no attempt has been fruitful thus far, a fact perhaps indicating the efficacy of our modern Constitution. It must however be acknowledged that the Constitution needs amendments to rectify some apparent blunders, as in Article 20 (3) (a) on the application of the Bill of Rights which surprisingly reads: "A court shall develop the law to the extent that it does not give effect to a right or fundamental freedom".

The two-third Gender Rule Laws (Amendment) Bill, Minimum and Maximum Holding Land Acreage Bill, Magistrates Courts Bill, the Community Land Bill and Access to Information Bill are among the Bills that were to be passed before the August 27 deadline.

The extension sought by Parliament by one year may be the best available option to avoid a situation where the Bills are hurriedly passed without proper debate as was witnessed in 2011, 2012 and 2013 where Members of Parliament had to extend their sittings to beat the deadlines.

It is all well to have a sound Constitution in place and the massive bulk of hurriedly and sometimes irrational and conflicting enactment, but running all the organs of the Government effectively will remain a mirage unless all the laws are applied without fear or favour.

Enforcement is another dilemma. Article 50 (2) (h) states, for example, that the State will provide legal aid to deserving cases – a far cry from the reality – where cases attracting death, life and very long imprisonment are being dealt with without representation. Should Kenyans celebrate the progress so far? Yes, indeed!