Constitution: Implementation Bill is excellent

The Commission for the Implementation of the Constitution Bill, 2010 has been published. It reveals a commendable attempt by Mutula Kilonzo to create a very transparent mechanism to appoint competent Kenyans who will play a major role in facilitating and overseeing the development of legislation and administrative procedures required to implement the new Constitution.

In its Memorandum of Objects and Reasons, Mutula explains that the main object of the Bill is to provide for the qualifications and appointment procedure of chairperson and members of the Constitution Implementation Commission established under the Sixth Schedule of the Constitution. He says the Commission is established primarily to oversee the implementation of the new Constitution of Kenya promulgated on the 27th August 2010.

According to the Minister the Constitution establishes a presidential system of Government and in such models, appointment to key offices originates from the Executive. He explains that under Article 250 the role of Parliament is to approve the person nominated by the Executive.

According to the Bill, the Commission for the Implementation of the Constitution (CIC) will have quite a heavy responsibility which will include monitoring, facilitating, and overseeing the development of legislation and administrative procedures required to implement the Constitution; coordinating with the Attorney-General and the Kenya
Law Reform Commission in preparing for tabling in Parliament, the legislation required to implement the Constitution; working with each constitutional Commission to ensure that the letter and the spirit of the Constitution is respected.

The responsibility will also include reporting regularly to the Constitutional Implementation Oversight Committee, which will soon have to be formed by Parliament, on the progress in the implementation of the Constitution; and any impediments to the implementation of the constitution. The duties will also include exercising such other functions as are provided for by the constitution or any other written law.

The Bill sets very high standards for people who will want to serve in the (CIC). Only qualified people can hope to be appointed to serve it. No one can hope to be appointed to the Commission unless he or she is a citizen of Kenya; possess a degree from a recognized university; has knowledge and experience of at least ten years in matters relating to either law, public administration, economics, gender, human rights, or government.

Apart from the above qualifications no one can hope to be appointed to the Commission unless he or she meets the requirements of Chapter Six of the Constitution. Which means whoever is appointed must demonstrates respect for the people; brings honour to the nation and dignity to the office; and promote public confidence in the integrityof the office according to the new Constitution. He or she will be expected to take the responsibility to serve the people, rather than the power to rule them.

According to the Bill the people who will serve in the CIC will have to have had a distinguished career in their respective fields. The chairperson of the Commission shall be a person who is qualified to hold the office of judge of the Supreme Court under the Constitution. The Bill categorically says no person shall be qualified for appointment as a member if such a person is a Member of Parliament; is a member of a local authority; or is bankrupt. Those who served in the Committee of Experts which was appointed under the Constitution of Kenya Review Act, 2008 are also not allowed to serve in the ICC.

No sooner was the Bill to create the CIC published than the country’s three most respected legal institutions – LSK, Fida and ICJ drew up a list of lawyers they thought should not be considered “for the position of Chief Justice when it falls vacant in February”. Though the list of the people the three law institution is supposed to make sure none of them becomes the CJ after Evans Gicheru, the innuendo is clear. Those on the list should also not be considered to serve in the CIC. On the list of the lawyers LSK, Fida and ICJ don’t want to be considered for the post of the Chief Justice are all the current Judges and magistrates “because they have not been vetted”

According to Article 73(2) in Chapter Six of the Constitution the guiding principles of leadership and integrity include selection on the basis of personal integrity, competence and suitability. The people who will serve in the CIC must be those with objectivity and impartiality in decision making, and in ensuring that the decisions they make are not influenced by nepotism, favouritism, other improper motives or corrupt practices.

They must be people who will be expected to provide selfless service based solely on the public interest, demonstrated by honesty in the execution of public duties. According to the Constitution they must also make declaration of any personal interest that may conflict with public duties. They must be people who are prepared to be accountable to the public for their decisions and actions while they remain disciplined and committed in serving the people.

When MPs meet soon to debate on The Commission for the Implementation of the Constitution Bill, 2010 they will find a very comprehensive draft legislation they may not be able to alter. The people will particularly see which members of parliament will want to alter the procedure laid down by Mutula Kilonzo to be followed before hiring members of the CIC. According to the Bill the procedure begins when the President in consultation with the Prime Minister when they declare vacancies in the Commission.

The President and the Prime Minister will request for applications to be forwarded to the Public Service Commission within fourteen days of the notice and be made by any qualified person; or through an organization or group of persons proposing the nomination of any qualified person. According to the Bill the names of all applicants shall be published in the Gazette. Then the Public Service Commission will convene a Committee comprising of one representative from the Cabinet Office; Office of the Prime Minister; Ministry of Justice, National Cohesion and Constitutional Affairs; State Law Office; Ministry of State for Public Service; and Public Service Commission; for the purposes of considering the applications, interviewing and short listing at least three persons qualified for appointment as chairperson and eighteen persons who qualify for appointment as members of the CIC.

This is probably one of the most transparent ways of appointing public officials. After making the short listing the Public Service Commission shall within seven days forward the names of Chairperson and members of the Commission to the President and the Prime Minister for nomination. The President, in consultation with the Prime Minister, shall then nominate within seven days a chairperson and eight other persons for appointment as chairperson and members of the Commission respectively and forward the same to the National Assembly.

After that the National Assembly shall, within fourteen days, consider all nominations received and approve or reject any nomination. The Bill says upon consideration and approval by the National Assembly, the Speaker shall within seven days forward the names of approved persons to the President for appointment. But if the National Assembly rejects any nomination, the Speaker shall within three days communicate its decision to the President and the Prime Minister to submit fresh nominations.

The Bill explains that if a nominee is rejected by Parliament, the President in consultation with the Prime Minister shall within seven days, submit to the National
Assembly a fresh nomination from amongst the persons short listed and forwarded by the Public Service Commission. The Bill also recommends that in short listing, nominating or appointing persons as Chairperson and members of the Commission, the short listing Committee, Parliament and the President shall ensure that not more than two-thirds of the members are of the same gender. The Bill is certainly drafted in the spirit of the new Constitution.

Even after being appointed to become the boss of the CIC chairperson or a member may be removed from office for misbehavior or misconduct incompatible with the
functions of the Commission. The Bill also makes provisions for the position of a Secretary of the Commission who may be removed by the Commission only for inability to perform the functions of his office arising out of physical or mental incapacity; misbehavior or misconduct; or incompetence.

Among the most important duties of the Commission will be to prepare a progress report every six months and submit the report to the Parliamentary Select Committee and the President. According to the Bill the progress report shall state the progress in the implementation of the constitution; identify any impediments to the implementation of the constitution; recommend any legal and administrative measures to address specific concerns identified by the Commission; and state any other information relating to its function that the Commission considers necessary.

The Bill stipulates that the Commission shall publish the report in the Gazette and in such other manner as the Commission may determine. Apart from that the Commission shall cause an annual report to be prepared for each financial year. It shall submit the annual report to the President and Parliament within three months after the end of the year to which it relates. According to he Bill the annual report shall contain, in respect of the year to which it relates the financial statements of the Commission; a description of the activities of the Commission; such other statistical information as the Commission considers appropriate relating to the implementation of the Constitution; any other information relating to its functions that the Commission considers necessary.

Finally the Bill describes how the Commission shall stand dissolved five years after it is established or at the full implementation the Constitution as determined by Parliament, whichever is sooner, but the National Assembly may, by resolution, extend its life. The Bill says upon dissolution of the Commission under the Constitution the Commission for the Implementation of the Constitution Act, 2010, shall lapse.

Whichever way one looks at the Bill it reflects an excellent job done by Mutula Kilonzo. The country will now very keenly look at Parliament to see which member will try to sabotage the Bill, in which case he or she will have committed political suicide.