Thursday, December 22, 2011

Nyachae's Choice

Despite the fact that Charles Nyachae is dead wrong on the issues, you must admire the Chairman of the Commission for the Implementation of the Constitution for his forthright manner. By labeling the Attorney-General as the impediment to the effective implementation of the Constitution, Mr Nyachae and the CIC have clearly drawn the line on the sand and are daring the Office of the Attorney-General to prove them wrong, even when they know that the A-G will not respond publicly.

One must wonder why every time there is a hiccup in the relationship between the CIC and the A-G, the CIC invites journalists to its plush offices to ventilate in an aggrieved tone over the many sins committed against it by the A-G. When one considers that the CIC has a five-year term and that at the end of that term it will have spent (or mis-spent) billions of tax-payers' shillings, one gets the idea. One of the biggest battles the CIC fought with the Executive was on the small matter of the pay of the Commissioners. They reacted with dismay when the Head of the Civil Service refused to pay them their hefty packages, asking them to be renegotiated to more affordable rates. The CIC marshalled public sentiment to its side and managed to get the Executive to swallow its pride and pay them what they demanded. But other than on the finer points of contract law, the CIC was unable to demonstrate how a smaller pay package would affect their independence or their effectiveness.

After more than one year into their term, it is time Kenyans audited the CIC and assessed whether we are getting value for our money. Mr Nyachae and his fellow-Commissioners have grown into their role, no doubt about it, but they operate as if they are not part of the same Executive they are hurling epithets at. They may be an independent commission, but they are most definitely part of the Executive. If they thought they were above the Executive, or apart from it, it is high time someone disabused of their delusions. Their interpretation of their powers and mandate, and the manner that the Commission for the Implementation of the Constitution Act is being interpreted by them and other reactionary interests, is a recipe for confusion and chaos.

The only institution that has the mandate of making law in Kenya, or anything with the force of law, is Parliament, not the Office of the A-G or the mighty CIC. One of the principal functions of the Office of the A-G is to draft legislation, and one of the principal functions of the CIC is to review the implementation of the Constitution and ensure that Bills drafted by the Executive, including Bills drafted by among others Ministries, departments, agencies, parastatals (such as the Kenya Law Reform Commission) and external consultants and submitted to Parliament meet the objectives and principles of the Constitution of Kenya. The CIC does not have a mandate to draft legislation or enact law. It does not enjoy veto power over Parliament or the Executive in the execution of their mandates, certainly not over the Office of the A-G.

When the Committee of Experts constitutionalised the various commissions and independent offices, no one could have predicted that they would become a drain on the national treasury. But all that is water under the bridge and it is now necessary to forge an effective working relationship between the Executive proper and these commissions and independent offices. Certainly, calling the A-G and the state counsels working in the State Law Office names and accusing them of standing in the way of the implementation of the Constitution is not the way to go about it. If Mr Nyachae and the other CIC Commissioners see themselves as the sole protectors of the Constitution implementation process, they must be disabused of this notion speedily. There are other institutions and agencies involved, not least of which are Parliament and the Judiciary, headed by the increasingly able Dr Willy Mutunga. The success or failure of the implementation process will not rely solely on a hectoring tone from the CIC, but from a realisation that compromise and co-operation are not necessarily evil traits. Where the Hon A-G fumbles, by all means let the fumbles be revealed. But if all the carping is for the sole purpose of justifying the existence of one Commission, we may be headed for failure after all. The choice is Mr Nyachae's and the CIC's to make.

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