Opposition leader Raila Odinga is headed to court over the new laws that President Uhuru Kenyatta vetoed.
Raila and his team in the Coalition for Reforms and Democracy are accusing the President of encroaching on the legislative role MPs play.
They said Uhuru makes suggestions to bills passed on to him in a way that goes beyond explaining his reasons for returning them and amounts to rewriting the laws.
They argue the President is taking advantage of the fact that he knows that raising a two-thirds majority to shoot down his veto is a tall order, and so returns the bills to Parliament knowing he will have his way.
he Coalition for Reforms and Democracy (CORD) is preparing for a bruising court battle with President Uhuru Kenyatta’s administration over controversial laws crippled by a presidential veto.
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CORD plans to lodge an application at the High Court, five months after the Opposition handed President Kenyatta a partial setback after successfully petitioning a constitutional court to nullify sections of a contentious security law enacted after a chaotic parliamentary session.
The dispute this time is about sections of the laws that factored in the President’s proposals that altered the initial version of the legislation passed by the National Assembly; but which MPs were unable to overturn because of a technicality.
The Constitution mandates the President to within 14 days after receipt of a bill, either sign it into law or refer it back for reconsideration by Parliament, noting any reservations he has concerning the draft law.
Two-thirds of MPs are needed to overturn the President’s reservations, usually a tall order for a divided House.
The Opposition claims the President is abrogating himself the role of legislation through the backdoor by sneaking in his personal views on the pieces of legislation presented to him for assent.
CORD has cited the changes to the Public Audit Bill (2014), and the Retirement Benefits Bill, 2013, after the National Assembly considered the President’s memorandum on June 18 and 19. The President refused to assent to the Public Audit Bill because Parliament had sought to give the Auditor General more powers including an independent budget and powers to hire and fire staff without reference to the Public Service Commission.
He returned the bill with recommendation that the clauses be expunged and because MPs were unable to muster the requisite two-thirds majority to overturn the memorandum, the provisions were thrown out.
Under the Retirement Benefits Bill, the President recommended inclusion of a provision requiring beneficiaries to quit elective politics; which was seen as targeting CORD co-principals Raila Odinga and Kalonzo Musyoka. Both have argued that the demand violates their constitutional rights. National Assembly’s Public Accounts Committee Chairman Nicholas Gumbo at one point in the House raised the concern that the President had returned several bills to the House, while making recommendations that effectively tied the hands of members in accepting them.
The bills include the Central Bank of Kenya Bill, Public Procurement and Asset Disposal Bill, the National Police Service Amendment Bill, the Statute Law Miscellaneous (Amendment) Bill and the Kenya Information and Communication Amendment Bill.
It is against this backdrop that the Opposition has tasked lawyers led by Siaya Senator James Orengo and Anthony Oluoch to challenge sections of the law they contend are unconstitutional. They are expected to go to court next week on Wednesday.
CORD’s legal team also includes former Busia Senator Amos Wako, Bungoma Senator Moses Wetang’ula, Nominated Senator Judith Sijeny and Musyoka.
CORD’s Secretariat boss Norman Magaya yesterday told The Standard that the legal team will be moving to court. “We are concerned that the President is involved with legislation through the backdoor, which is against the Constitution. Our legal team is fine-tuning the details and may move to court next week on Wednesday,” he said.
CORD is said to be drafting the petition to be presented to court, which will also include claims of breach of Article 94 (1) of the Constitution; which states that the legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament.
Magaya revealed the team will also seek legal redress on claims of a constitutional breach of Article 252 (1) (c), which states that each commission and holder of an independent office shall recruit its own staff and may perform any functions and exercise any powers prescribed by legislation, in addition to the functions and powers conferred by the Constitution.
Orange Democratic Movement’s Political Affairs Secretary Opiyo Wandayi said the President has been abrogating himself legislative powers by going ahead to recommend changes to be made to a bill before assent.
He said the only remedy to ‘cure’ the impunity is to seek legal redress and put a stop to Executive usurping the roles of the Legislature.
“The Constitution makes it clear on when the President fails to assent to the bill. He can only make reservations and send it back for reconsideration but has no powers to recommend on the wordings of any clause in the bill,” argued Wandayi.
The Opposition also wants to petition the court over the Presidential memo on the Retirement Benefits Bill, 2015 which mandates Raila and Musyoka to quit elective politics before they enjoy their retirement packages.
Magaya argues that depriving the two their retirement packages and being forced to retire from politics was discriminatory and against the Constitution.
However, Opondo Kaluma (Homabay Town) cautioned that the Opposition should take each of those bills to court separately, one by one. “The President cannot go prescribing provisions that are not even within the bill. He is running a parallel legislative wing of Parliament. We must protect the independence of Auditor General,” argued Kaluma.
Gumbo had on June 25 sought the directions of the National Assembly Speaker Justin Muturi on whether in expressing his reservations and sending a bill back to Parliament, the President can make specific proposals for amendment to the particular bill.
He claimed the President was effectively encroaching on the principle of separation of powers, which sets the boundaries between the functions of the Executive and the Legislature.
He drew attention to the fact that the President had put the House at a disadvantage because he knows he will have his way so long as the House does not garner the two-thirds majority to reject his suggestions on a bill he has vetoed.
Deputy Minority Leader Jakoyo Midiwo argued that the National Assembly would be opening a ‘dangerous window if it allowed the President to ‘ride roughshod’ over the House.
“I want this House to consider a scenario where a good bill is brought before this House and the President rejects it and goes ahead to bring a draconian bill. That is the window we are opening.”
But the Speaker in his ruling last week was categorical that the President had not overstepped his mandate by participating in the legislative process, noting that the National Assembly also participates in the appointment process of State officers, which is a function of the Executive arm of the government.