Call their bluff

Emmanuel Talam, on KTN's Newsnight, in a discussion on the effect of the passage of the adjournment motion to suspend debate on the Commission on the Implementation of the Constitution, stated what has now gained the currency of popularity, that failure to constitute the CIC within the three-month deadline allows any person in Kenya to petition the High Court for the dissolution of Parliament. In my fevered examination of the provisions of the Constitution, including Articles 248 to 254, Chapter 18 (Transitional and Consequential Provisions), the Fifth Schedule and the Sixth Schedule, I find no basis for this alarmist declaration.

Article 261 makes provisions regarding the effect of Parliament not passing legislation within the periods stipulated in the Fifth Schedule. In fact, Article 261 (5) states "If Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter." Black's Law Dictionary defines legislation thus: "1. The process of making or enacting a positive law in written form, according some type of formal procedure, by a branch of government constituted to perform this process. 2. The law so enacted. 3. The whole body of enacted laws." It also defines law as ...the aggregate of legislation..." Nowhere is a commission analogous to law or legislation. Therefore, the basis for Mr. Talam's statement is unknown and unknowable.

Section 5 of the Sixth Schedule describes what the CIC is, what it shall do, and how long it shall remain in existence. For your information, after the date of its creation, the CIC shall serve for five years and, depending on whether its life is extended by Parliament, it shall then cease to exist.

If Hon. Isaac Ruto and his cohorts hope to derail the process of constituting the CIC and the Committee on Revenue Allocation as a way of expressing their displeasure with the manner by which the IIBRC has conducted its affairs, then they also misapprehend the provisions of Sections 41B and 41C of the former Constitution regarding the place of Parliament in boundaries review and delimitation. The National Accord which was entrenched in the former Constitution was drafted in such a manner to ensure that politicians, especially Parliamentarians, did not meddle in the interim independent bodies that it created. The main charge of ODM after the disputed 2007 elections was that PNU, and by extension the President and his political allies, had actively meddled in the affairs of all national institutions, including the Electoral Commission of Kenya (which was in charge of elections and boundaries review) with a view to ensuring that PNU carried the day and that the president was re-elected. As a result, the national consensus was that all national bodies that would be created after the National Accord was implemented would be insulated from interference, either by the Executive or Parliament. The decision of the IIBRC must be published in the Kenya Gazette and all who have a dispute with the decision can appeal the same to the High Court. The Judiciary has acquitted itself admirably in recent months, and despite Gacheche, J's meddling in the boundaries review process, no one should doubt that when an appeal against the decision of the IIBRC is brought before the Bench that it will continue to acquit itself with honour and without bias.

The risk posed by the Isaac Ruto cabal is to the wider course of implementing the Constitution. If they prevent the CIC from being constituted on the basis of their displeasure with the IIBRC decision, they risk ensuring that Parliament fails to meet its deadlines vis-a-vis the Fifth Schedule, in which case the provisions of Article 261 will apply. 261 (7) states that "If Parliament fails to enact legislation in accordance with an order under clause (6) (b), the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament." Perhaps Hon. Ruto wishes to see early elections. If this were the case, perhaps he hopes that this may rescue Hon. William Ruto from facing difficulties with the ICC when indictments are handed down. This is a dangerous game. Unless Hon. William Ruto somehow manages to persuade Kenyans to elect him president, he may not survive the ICC indictments if and when they are handed down. This rabid opposition to the IIBRC decision reeks of an attempt to prevent this Parliament from serving its full term, giving William Ruto an opportunity to stand for the presidency prematurely, and sowing enough confusion and chaos so that the government will not be in a position to act as and when it is required to do so. If that is the case, then let the President and Prime Minister dissolve Parliament and call for general elections today. Let's call their bluff and let the chips fall where they may.