Blot on Parliament as MPs churn out bad laws

Fresh questions on the legality of laws passed by Parliament have emerged, as MPs get ready to resume their sessions in four days.

The queries are about the aptitude of the lawmakers, their perceived impunity in legislation and the influence of the Executive on the House.

The Coalition for Reforms and Democracy (CORD) has gone to court over the legality of at least 12 laws whose constitutionality is in doubt.

CORD is also contesting the process of legislation, especially the role of President Uhuru Kenyatta in his powerful prescriptive memos that need a two-thirds majority to throw out.

But National Assembly Speaker Justin Muturi and Majority Leader Aden Duale say MPs should not be blamed for doing their work. They also say that courts have the constitutional authority to have the final say on laws.

The 11th Parliament has come under fire because in just three short years, it has approved illegal clauses in at least a dozen laws, according to legal experts.

Opposition MPs, the civil society and the media have all borne the brunt of the MPs in their lawmaking zeal.

The laws with illegal clauses that the MPs have passed include amendments to the Judicial Service Commission Act that gives President Kenyatta the final say to pick the next Chief Justice when the current one, Dr Willy Mutunga, retires in June this year.

The Opposition has gone to court and argued that the grey area in the handling of presidential memoranda that saw the President make laws through parliamentary memos ought to be addressed.

"The Executive and the so-called tyranny of numbers has turned Parliament into an Executive rubber-stamp and has made it pass the highest number of unconstitutional bills," Senate Minority Leader Moses Wetang'ula told The Standard.

"The biggest problem with Parliament is the two Speakers; they think that they represent the Executive in Parliament; they do not know that under the Constitution they have got very strong independence, protected and insulated by the Constitution, to act as an arm of government," he added.

Wetang'ula's counterpart in the National Assembly, Francis Nyenze (Kitui West), also blamed the "tyranny of numbers" in the House for the bad laws challenged in court. The ruling Jubilee coalition has numerical strength in the National Assembly — 216 out of 349 MPs.

"Jubilee is frustrating us. It is using its numbers to have its way, even when we walk out in protest, they take a vote and carry the day," said Nyenze in an interview.

That numerical helplessness was also captured by Ruaraka MP Tom Kajwang', who sits in the Speakers' Panel and presides over House sittings when the Speaker is away.

"The House knows the Constitution cannot be changed except through a referendum, so it uses legislative and administrative authority to frustrate the full implementation of the Constitution to their own advantage by coming up with parallel laws," said Kajwang'.

 

He said that in several instances, bills have failed to be signed into law by the President only to be returned to the National Assembly with instructions on how the bill should be formatted for it to see the light of the day.

The Opposition has filed documents in court challenging the constitutionality of the Public Audit Bill 2014, the Retirement Benefits (Deputy President and Designated State Officers) Bill 2013, the Ethics and Anti-Corruption Commission (Amendment) Bill 2015, the Central Bank (Amendment) Bill 2014, the Kenya Information and Communication (Amendment) Bill, the Public Procurement and Disposal (Amendment) Bill 2013, the Statute Law Miscellaneous (Amendment) Bill 2014, the National Flag, Emblems and Names (Amendment) Bill 2013 and the Police Service (Amendment) Bill 2014. They are querying the President's recommendations that they could not overturn because of their numerical inferiority.

The civil society, too, warned that Kenya risks losing constitutional and democratic gains endorsed in the 2010 referendum if the Executive and Legislature are not stopped from passing laws that breach the supreme law and cripple independent arms of Government.

Governance expert John Githongo argues that such "butchering of the Constitution" is always witnessed when the country is heading towards the General Election.

"It is a matter of much public concern that many Kenyans are oblivious to... More so, it is worrying that constitutional matters have been left to parliamentarians only for the civil society to complain when an unfavourable law is passed," said Githongo.

delicate process

But Speaker Muturi and the Majority Leader Aden Duale said the "excuses" about tyranny of numbers have no basis. The Speaker said his job was to oversee the House, but he could not gag MPs from making laws.

"If we begin rejecting all amendments they bring and terming them unconstitutional, we will appear like gatekeepers...I don't want to be a roadblock or to stop MPs from doing their job. It is a very delicate process. I have to ensure fidelity to the Constitution, but still make sure MPs do their job. Nobody else can make laws in this country. That is the exclusive mandate of Parliament," said the Speaker.

He added that very few MPs understand the 'Committee of the Whole House' where the final changes to laws are made.

"Very few understand that process of legislation. Very few attend and that is why we end up with laws like this. Though we try to cure the issue of amendments by insisting that they are brought in early, you can never anticipate the last-minute changes that are made on the floor of the House," said the Speaker.

Once a bill has gone through the committee, there's no going back procedurally, the Speaker said.

"If they bring a bill that has been duly approved in the committee stage, I put it to vote in the Third Reading and send it for assent. If there are issues, the Constitution is very clear that the High Court is the final arbiter on matters of the Constitution," said Muturi in an interview with The Standard.

The Majority Leader dismissed the tyranny narrative as an excuse for defeat.

"You know this cry baby situation, where when you lose you say it's tyranny of numbers," said Duale.

Reports by Kamau Muthoni, Graham Kajilwa, Roselyne Obala and Alphonce Shiundu