MPs seek extension to parties’ deadline to forestall stalemate

By Juma Kwayera

Parliament intends to extend the January 4 deadline for MPs to switch political parties by 10 days to forestall a looming constitutional crisis.

The extension would save MPs from the requirement to seek fresh mandate from the electorate if they were – in keeping with the Constitution – to complete the 10 days remaining on the life of the Tenth Parliament. The tenure of the current Parliament expires on January 14.

A source at the State Law Office told The Standard On Sunday in confidence that a clause to plug a gap in parliamentary procedures had been inserted in a Miscellaneous Amendment Bill to be tabled in the House to take care of the ambiguity.

In the amendment, the political parties deadline and tenure of Parliament have been synchronised to expire on January 14.

Fears of a looming crisis were first made public by Speaker Kenneth Marende when he warned that he would be forced dissolve Parliament early because of the deadline for crossovers.

The remarks elicited petitions to extend the sittings of Parliament to allow it to pass crucial Bills, ending in controversy with legal experts and politicians in equal measure uncertain of what awaits the country as MPs’ mandate expires.

Fresh mandate

Were the Political Party Act to be cited, only a few ODM and Narc Kenya MPs would legally be the people’s representatives, while the rest would be asked to seek fresh mandate on their new parties – less than 10 days before the House is dissolved. Nearly two-thirds of MPs have defected from the political parties that sponsored them to Parliament.

When The Standard On Sunday pointed out the looming quandary to Attorney General Githu Muigai, he was non-committal on the way forward. Neither would he comment on revelations that the Political Parties Act would be amended to move the Political Parties deadline from January 4 to January 14.

Marende has warned MPs that party crossovers is a potential setback for House business, which highlights the dilemma Parliament faces as the country slips further into the election mode.

In the absence of internal political party stability, and with more than three quarters of MPs and civic leaders have switched parties to comply with the Political Parties Act deadline that requires aspirants to have been members of a political party at least 60 days before the next election, Marende says, the risk of dissolving Parliament is high.

The House broke for Christmas on Thursday leaving behind a string of crucial Bills and public appointments to be approved before the next Government is formed. There is fear business transacted by Parliament after the January 4 deadline could be challenged in court.

Before Parliament is dissolved, it is under pressure to pass several crucial Bills, two of which relate to county revenue and supplementary budget Bills.

Finance minister Njeru Githae and Chairman of the Commission on Revenue Allocation Micah Cheresem have exhorted Parliament to pass the supplementary Budget Bill, the County Revenue Allocation Bill and County Division of Revenue Bill to prepare the ground to usher in devolved governments for which some Sh200 billion is required to kick-start the counties after the next polls.

Without passing the three Bills, Githae and Cheserem warn of a looming crisis, as the 47 counties will be starved of cash. County governments come into effect in March 2013 after the General Election, just four months to next financial year. In addition, the House is expected to vet the appointment of David Mwole Kimaiyo as Inspector General of Police, with Ndegwa Muhuro (Regular police) and Samuel Arachi  (Administration police) as his deputies. The Bill and appointments cannot wait for the next Parliament.

House calender

Key members of the Committee of Experts that wrote the Constitution are of the opinion that while the new laws are clear on what should be done in the event MPs defect from their parties, practicality of time and the fact the Parliament controls its calendar gives the MPs leeway in determining how long the House would be in session.

A CoE member, who requests anonymity, acknowledges the uncertainty portends a constitutional crisis that was not anticipated in the transition clauses.

“These are some of the grey areas that should have been addressed by the transition law. As it stands now, even if someone went to court to seek a ruling on MPs who are now formally in other parties, by the time the court would be making a ruling, their tenure would have expired,” says the expert. Implicitly, the MPs would be in breach of the law and the Constitution for not abiding by the institutional procedures that compels them to seek fresh mandate upon switching parties.

International Centre for Policy and Conflict Chief Executive Ndung’u Wainaina takes issue with Parliament, which he describes as acting unconstitutionally for convenience. This is in response to the argument that since Parliament is in charge of its own calendar, it can also determine when to cease sittings.

Says Wainaina: “Even in matters of transition, the Constitution has to be obeyed. Unless the Constitution suspends the commencement of a clause you cannot use convenience to do anything. When the MPs argue that this is a transition period so they can overlook the new clauses, those who have changed parties should have sought fresh mandate to resume their legislative duties.”

One of the CoE members interviewed says given the little time left for the term of the current Parliament to end, it would be imprudent to send the MPs home when crucial Bills are still pending.

“More than three quarters of MPs have changed parties. The process of compelling them to abide by the law can be a stumbling block. This is because somebody has to inform the Speaker in writing for him to issue writs declaring the seats vacant. Practically, time does not allow such action to be taken,” the expert says.

The country is waiting to see how Marende navigates the challenge of ensuring MPs play the rules despite the short period left of their tenure.

In principle, the Registrar of Political Parties is vested with powers to ensure party membership stability by constantly auditing the lists deposited with the office.

Parties Act

However, since the promulgation of the Constitution and the coming into effect of the Act in November last year, Lucy Ndung’u’s continued stay in the office has raised eyebrows after her tenure on interim basis expired last March.

Unlike in the past when defecting MPs were required to serve the Speaker with a written notice, the law in its current form allows the registrar to originate such a notice when legislators appear to advance the agenda of rival parties. Despite sustained push on Ndung’u to publish the lists of party members, in addition to instruments of coalition agreement they enter, she has stubbornly sidestepped the issue and her occupancy off the office.

Against the backdrop of uncertainty about the constitutionality of the legislative process after the January 4 and January 14 deadlines, Wainaina accuses Parliament of playing Animal Farm – they are more superior beings, while the rest of citizens are subject to the law.