Constitution: Implementation challenges

The implementation of the new Constitution is facing very many serious challenges. These are mostly based on the selfishness of Kenyan leaders who are all expecting to reap all sorts of political benefits from the new Constitution. The majority of them in the ODM have refused to endorse the list of experts to serve in the Commission for the Implementation of the Constitution (CIC) without which the whole implementation process cannot be operationalised.

The reason given by the ODM for this obvious sabotage of the implementation process are not convincing enough. They claim they cannot endorse the list of experts before the Ligale recommendation of 80 new parliamentary constituencies has been published. Yet the Ligale recommendation cannot be published as a court injunction by PNU MPs has stopped that process claiming unfairness on the part of Ligale in the manner in which he distributed the new constituencies.

Realizing that whoever becomes the next President after the 2012 elections will desperately depend on what support he or she gets from Parliament to govern the country, a lot of arm twisting tactics are now being used by the two major political parties to ensure they gain the upper hand in the Legislature even if it is through gerrymandering. Ligale did his gerrymandering on behalf of ODM. PNU want to do theirs through court injunctions. Meanwhile the country is bogged down in what may very well end up in a constitutional crisis.

But as ODM and PNU continue to engage in a lot of shadow boxing to control the next Parliament the process of implementing the new Constitution is suffering a very heavy blow which is turning the political achievements brought about by the new Constitution into a nightmare benefiting the very people who opposed the new Constitution.

When Parliament is dillydallying with the implementation of the new Constitution it is in fact playing with fire .According to Article 261 (5) to be found in Chapter Eighteen on Transitional and Consequential Provisions, the new Constitution says if Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter.

It says the High Court in determining a petition may make a declaratory order on the matter; and transmit an order directing Parliament and the Attorney- General to take steps to ensure that the required legislation is enacted, within the period specified in the order, and to report the progress to the Chief Justice.

If, according to the Constitution, Parliament fails to enact legislation in accordance with that order, the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament. That process to dissolve Parliament has indeed started as the matter is already in court.

It so happens that there are some sinister characters in our society who would like to see the country go through another period of disturbance in order to stop the trend of implementing the new Constitution. These could be the same people who ridicule Luis Moreno-Ocampo when he threatens to name the masterminds of the PEV and prosecute them. The characters would rather the whole country suffered once more than their so called leaders going to jail alone.

According to the latest Kenyan National Dialogue and Reconciliation (KNDR) report published last October, there are serious challenges facing the implementation of the new constitution. These include what the report calls cohesion challenges during the implementation process and operational challenges.

On cohesion challenges the reports says there are still divisions in the Coalition Government which have contributed to creating problems in the implementation process. Though the new Constitution provides for the establishment of the Commission for the Implementation of the Constitution (CIC) and the Constitutional Implementation Oversight Committee (CIOC) of the Parliament as the organs to steer the transition, for instance, lack of cohesion within the Coalition appeared to constrain establishment of these important organs.

In the case of CIOC, for example, the country witnessed such a tug-of-war between the ODM and PNU that almost delayed the formation of the committee. While the two parties struggled to get their own man to chair the committee it was obvious that they cared very little about the deadline to be met. This was despite the fact that a joint Parliamentary Group meeting had earlier on agreed to back PNU’s Mohamed Abdikadir for the job because of his proven record of successfully chairing the parliamentary select committee that midwifed the new Constitution. The agreement at a joint Parliamentary Group meeting notwithstanding, ODM, completely out of the blue, suggested that Ababu Namwamba was the best suited person for the job.

The two political parties had to engage in a considerable amount of horse trading through which Namwamba had to be given the chairmanship of Parliamentary Committee on Legal and Justice Affairs before ODM agreed to back Abdikadir. The Public Service Commission (PSC) did a commendable job of short listing the names they sent to the President and the Prime Minister who appointed members of the CIC for Parliament to approve. Unfortunately Parliament has refused to do so ostensibly for lacking regional balance.

Given the fact that the country has now 47 regions known as counties it is absolutely impossible to have a CIC that represents every region since the total number of its members are only nine. The excuse given by MPs to reject the list is both unreasonable and myopic as it may very well throw them out of Parliament. The power behind the rejection of the CIC list is the ODM which is wrongly connecting the process with the Ligale proposal as a very unfair blackmail of the whole country.

Though the names of people who were short listed by the PSC belong to some of Kenya’s most respected legal brains, they are people who can easily be identifies with either ODM or PNU. A few of them, like Koki Muli, were neutral and could probably have provided the services similar to those of Nzamba Kitonga as the chairman of CoE. Whatever the case may be the final list will be approved by Parliament which Kenyans hope will be more concerned with the future of this country rather than party triumphalism which so far has blinded their wisdom.

The tug-of-war games played by ODM and PNU have actually been criticized by the KNDR as an attempt to hijack the implementation process, a view reinforced by claims that wider consultations are lacking before drafting and publishing of Bills which are needed before operationalising the new Constitution. According to the report maintaining the bipartisan spirit, national consensus and momentum created by the referendum to ensure effective implementation of the New Constitution is currently the challenge facing Kenya’s political leaders, especially the two main political parties.