Friday, December 23, 2011

The CIC is wrong about the A-G.

The Commission for Implementation of the Constitution, CIC, does not enjoy a veto over legislation-making, nor is it the final word on the final language incorporated in a Bill presented to the National Assembly for consideration. Given the tone and tenor of its reports, especially its comments regarding the manner in which the Hon Attorney-General has conducted himself with regards to constitutional implementation, it is quite clear that the CIC sees itself as first among equals when it comes to the preparation and enactment of legislation. Nothing could be farther from reality.

Until the first general elections under the Constitution, only the Attorney-General is a Member of Parliament, but only as an ex officio member without the power to vote; the members of the CIC are not and will not become MPs. Ever. It is a hard truth to swallow but swallow it they must. The functions of the CIC are limited to co-ordinating the process of drafting Bills for consideration and debate in Parliament aimed at implementing the Constitution and reporting progress made or impediments faced during that process. Ultimately, it is for Parliament to consider and debate and enact legislation. Without so much as a by-your-leave to the CIC, Parliament may alter the language or anything contained in a Bill being debated, as has happened once or twice in the past, especially with the enactment of Constitution-implementation Bills.

But even as an MP, what must surely irk the CIC is the fact that the A-G is also a member of the Cabinet, and will continue to enjoy this rank even after the first general elections under the Constitution, while the CIC will be left on the outside looking in. As a member of the Cabinet, the A-G, in addition to playing his role as the principal legal advisor to the government, he will still be bound by the doctrine of Cabinet Collective Responsibility. As such, he does not have as free a hand to do as he pleases as the CIC suggests. The CIC alleges that the A-G has been "[willing and committed]to subjugate his opinions to those of other organs of government, even where those organs may be acting in breach of the Constitution." It refuses to acknowledge that the opinion of the A-G is not always binding; the members of the Cabinet are free to accept, alter or reject his opinions. It also fails to accept that the role of the A-G also means that he will always give the Cabinet alternatives in the hope that the Cabinet will make the best choice possible in the light of contemporary events and circumstances. Not everything is as black-and-white as the CIC is suggesting, and anyone led to believe so must be swiftly disabused of this notion.

The CIC is correct to state that the role of interpreting the Constitution is the exclusive preserve of the High Court, but fails at add that such a role can only be played in the light of a controversy. The High Court will only be asked to interpret specific provisions of the Constitution where there is a dispute as to the true meaning of the provisions in question and the matter is being actively litigate before it. An interpretation of Article 165.3.d does not lead to the conclusion that the role of the High Court is advisory in nature; that would be an absurdity. Examining the powers and functions of the High Court leads one to the reasonable interpretation that it will involve itself in the interpretation of the Constitution only when a matter is being actively litigated before it. This also means that in interpreting their roles, functions and powers, various organs and institutions must interpret the Constitution, in a limited manner, to determine where their place is and what power they enjoy in the execution of their mandates, including both the Cabinet and the CIC. Even Parliament interprets the Constitution when it debates Bills and decides on possible amendments to the Constitution.

Finally, the CIC is correct the champion the right of the people of Kenya to be fully informed about the issues surrounding the implementation of the Constitution, including possible amendments to the Constitution. But it is wrong to suggest that the National Assembly does not have the power to amend the Constitution without a comprehensive public information campaign. Even to casual observers, the process of amending the Constitution that was initiated last November followed the strictly laid down procedure in the Constitution, including the time-table for such an amendment and the involvement of the public in debating the merits or lack thereof of shifting the date of the next general elections from August to December. No one, least of all the CIC, has demonstrated what mischief there will be if the election date is changed. Indeed, its only bone of contention seems to be that the public has not been sufficiently consulted, which is not the case. When the Constitution (Amendment) Bill, 2011 was placed before the National Assembly for its First Reading, the Clerk of the National Assembly published an advert calling for input from members of the public during the 90-day period between the First Reading and Second Reading. What more could be done remains a question of the availability of resources and the determination of those opposed to the Bill, such as the CIC. If it is unable or unwilling to expend monies to persuade members of the public to the danger of the proposed amendments, it is not the fault of the A-G or, indeed, the Cabinet or the National Assembly, but its own.

Just as the CIC has pointed out, ultimate responsibility for the implementation of the Constitution lies with the people of Kenya. If they truly wish to take a hands-on approach to the implementation, it is their duty to inform themselves of the state of affairs, and perhaps, join any organisation that may help them fulfill their responsibility, including civil society organisations and political parties. Finally, they can take control of the process by ensuring that the men and women elected to the National Assembly and the Senate share their ideas and priorities. It is the only way that they will not be betrayed or misled.

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