Playing with fire

What is the place of the Commission for the Implementation of the Constitution in the correct interpretation of various articles in the Constitution? Charles Nyachae, the Chairman of the Commission, has on various occasions taken to task various state agencies for failing to act within the spirit and letter of the Constitution, accusing them of delaying the process or acting as impediments. He has been particularly vocal about the manner in which the State Law Office has conducted itself during this transitional period, accusing the Attorney-General of being a major obstacle to the implementation of the Constitution.

According to the Sixth Schedule, the functions of the Commission are:

1. Monitor, facilitate and oversee the development of legislation and administrative procedures required to implement the constitution;

2. Co-ordinate with the Attorney-General and the Kenya Law Reform Commission in preparing, for tabling in Parliament, the legislation required for the implementation of the Constitution;

3. Report regularly to the Constitutional Implementation Oversight Committee on the progress in the implementation of the Constitution and any impediments to its implementation; and

4. Work with each constitutional commission to ensure that the letter and the spirit of the Constitution is respected.

Even a liberal interpretation of these provisions does not lead to the interpretation that the CIC is mandated to interpret the Constitution. That is the preserve of the Judiciary, particularly the High Court (Art 165.3), and it is not reserved to the CIC. In its interpretation of various clauses of the Constitution, the CIC is attempting to usurp the Constitutionally assigned powers of the High Court and this is giving rise to confusion on the process of implementing the Constitution.

In the past few weeks, the CIC has given its own interpretation on the question whether Members of Parliament and other constitution office-holders should pay income tax on all their earnings, on the correct date of the next general elections, on the proper manner in which the budget should passed, and on whether MPs may or may not hold office in political parties. These are questions that can only be properly answered by the High Court upon application by any Kenyan or by any of the constitutional commissions, including the CIC. The CIC's position is nothing more than an opinion and not the definitive interpretation of the relevant clauses of the Constitution. It is important that this distinction is impressed upon the members of the CIC, particularly the chairman, so that it can properly participate in the process of the implementation of the Constitution.

Therefore, the CIC cannot purport to draft legislation for the implementation of the Constitution; it is not a law-making body. That remains the preserve of Parliament. Draft Bills are usually prepared by bodies that shall be responsible for their implementation. For instance, government ministries, departments and agencies usually draft Bills for consideration by the Attorney-General, or more conveniently, they instruct the A-G to draft these Bills and submit the same to the National Assembly for debate. The CIC is only concerned with whether these Bills reflect the spirit and letter of the Constitution and makes an opinion for or against the Bills. If the CIC is unable to make this distinction, this is a situation that can only be resolved by the High Court, or if its decision is appealed against, by the Supreme Court. It is time that someone told Mr Nyachae and his fellow commissioners that they are playing with fire.