A section of lawyers and the civil society are accusing the Executive and Legislature of creating an unholy alliance to circumvent the Constitution.
The latest move by MPs that kicked up a storm was on contentious amendments to Elections Act and Political Parties Act that would have allowed party hopping. Parliament also amended laws that would allow for the transfer of powers of vetting magistrates to the Judicial Service Commission. Currently the Judges and Magistrates Vetting Board do this.
The Statute Law (Miscellaneous Amendments) Bill 2012 was passed by Parliament but rejected by President Kibaki on the basis that some of the changes touched on issues that were subject of court proceedings.
Its return to the floor of the House saw MPs vote to disallow party hopping, but struck out a requirement that would have seen those without a university degree barred from seeking parliamentary seats.
Besides pushing for the nomination of candidates who lose in the presidential race, there are also fears of a plot to water down Ethics and Integrity requirements of public officers as spelt out in Chapter Six of the Constitution.
Prime Minister Raila Odinga termed ‘unconstitutional’ changes to the Political Parties Act, which would have seen MPs easily shift parties thus defeating the purpose of instilling discipline in the political outfits as covered by Article 103 of the Constitution.
Besides Election and Political Party laws, other key legislation where proposals made by Parliament have raised eyebrows include those on devolution, national security, and management of public funds.
But it’s not just the Legislature that is being accused of trying to side step the Constitution.
The Executive too is under the spotlight, for allegedly ‘pushing for legislation that waters down devolution’. In February, President Kibaki declined to assent to the County Governments Bill, arguing it was unconstitutional. In his argument the President said proposals in the Bill, which would have seen provincial administrators report to county governors, had transferred the functions of the national government to the county government.
While his position was supported by Attorney General Githu Muigai and the then Justice Minister Mutula Kilonzo, it was criticised by some MPs who questioned why the President had earlier assented to the National Police Service Bill and recognised the county equivalent of the National Security Council.
Kibaki’s appointment of 47 county commissioners also kicked up a storm for his failure to ‘consult’ the PM, and overlooking gender balance requirements of the Constitution.
The High Court on Friday overturned the appointments, with Justice Mumbi Ngugi ruling that the President lacked the legal authority to make such a decision, ignored gender balance stipulations, and failed to adhere to the National Accord and Reconciliation Act.
“The Executive and Legislature have from time to time colluded to undermine the sovereign interests of the public,” says ICPC executive director Ndung’u Wainaina.
“Both entities are operating as though they are permanent and not transient bodies. Many within the legislature want to pass self-serving laws, while the Executive is keen on legislation that ensures it retains power. The two entities only fight when their interests are not mutual,” he adds.
University of Dodoma political science lecturer Amukowa Anangwe says while Parliament has the mandate to legislate; it must respect the spirit of the Constitution.
He argues that even though law, as an instrument of politics is made by politicians, it is also important to remember that politicians have several considerations to make, which are largely centred on power.
This often guides their interpretation of issues, hence the need for other bodies such as the courts to determine whether the laws are in line with the spirit or in breach of the Constitution.
“In the heat of the moment during debate in Parliament legislators may not always look at the bigger picture, or even what the Constitution says,” says Prof Anangwe.
Election Observers Group Chairman Kennedy Masime says the public should guard against dilution of the Constitution to prevent what happened to the post-independence document.
“There was a similar trend soon after independence where moves were made to dilute the Constitution through enabling legislation. By 1966 the Constitution had been completely neutralised in terms of checks and balances that had originally been envisioned,” he says. Legislation covering national security organs has also met resistance from the entities, which have historically been averse to public scrutiny.
Hurdles have also beset establishment of the National Police Service Commission, a key body in ensuring implementation of police reforms.
In turning down the list of nominees to the commission, Raila maintained he was not consulted as the Constitution requires. MPs have also rejected the names terming the list unconstitutional.
Law Society of Kenya Chair Eric Mutua says it is regrettable that Parliament, the key institution charged with the role of legislating, is trying to circumvent the Constitution, to satisfy certain interests.
“We have seen Parliament enact laws that are in direct conflict with provisions of the Constitution, and the only way to check this is through vigilance from the public,” he says.
He discounts the argument advanced by some quarters that say the Constitution is ‘contradictory’ terming it an excuse perpetuated by those keen on preserving selfish interests.
“Its important to realise that interpretation of a Constitution is not similar to interpretation of any other laws. Often the practice is to uphold the spirit of the Constitution,” says Mutua.
By Lillian Aluanga-Delvaux, The Standard