Nyachae – Muigai fight is healthy

It is wonderful that there is an open disagreement between Attorney General Githu Muigai and the Commission for the Implementation of the Constitution (CIC) boss Charles Nyachae. That disagreement has opened the peoples’ eyes as to who is seriously concerned with the noble task of implementing the Constitution. Simultaneously it has also exposed those working against it.

To begin with, it must be understood by all that the greatest impediment to the democratisation of our society has always been the despotic constitution we have just thrown into the dustbin of history. That constitution gave both Jomo Kenyatta and Daniel arap Moi powers to detain people without trial; it legitimized the creation of an extremely wide gap between the haves and the have-nots. At one time it even made Kenya legally a one party state.

Today there are a number of people who nostalgically wish the old constitution never died. These are the super-rich members of our communities who have since independence occupied the top positions in the Executive, the Judiciary and the Legislature. Their almost criminal domination of all the three arms of Government is now being seriously challenged by the new constitution whose implementation was predicted to be a big threat to the powers that be.

This prediction made the drafters of the new Constitution come up with a well thought-out mechanism that would make it almost impossible to stop the sweeping tsunami of the Constitution from introducing social, economic and political changes needed in the country. That is how the Constitution Implementation Commission came into existence in 2010 through the Commission for the Implementation of the Constitution Act.

According to Section Four of the Act the functions of the Commission shall be to—(a) monitor, facilitate, and oversee the development of legislation and administrative procedures required to implement the Constitution; (b) co-ordinate with the Attorney-General and the Kenya Law Reform Commission in preparing for tabling in Parliament, the legislation required to implement the Constitution; (c) work with each constitutional Commission to ensure that the letter and the spirit of the Constitution is respected; (d) report at least once every three months to the Parliamentary Select Committee on— (i) the progress in the implementation of the Constitution; and (ii) any impediments to the implementation of the constitution; (e) exercise such other functions as are provided for by the constitution or any other written law.

No matter how hard the AG tries he cannot succeed in trivialising the functions of the CIC. Nyachae has every right to complain when he feels the constitution is not being implemented according to the spirit and the letter of the new supreme law of the land. Chapter Eight of the new Constitution which deals with transitional and consequential provisions says in Article 261(4) that the Attorney-General, in consultation with the Commission for the Implementation of the Constitution, shall prepare the relevant Bills for tabling before Parliament, as soon as reasonably practicable, to enable Parliament to enact the legislation within the period specified.

Muigai cannot introduce Bills to implement the new Constitution without consulting Nyachae and he cannot pretend to have the powers to reject what Nyachae proposes. Yet Nyachae is far from being happy with Muigai as far as the implementation of the new Constitution is concerned. The allegations he is making against Muigai are very serious. He says most of the bills developed have not been based on policies and the laws passed have not been reinforced by administrative procedures. According to Nyachae this makes delivery of service to the people of Kenya hard and may not promote constitutionalism.

These are extremely serious allegations made by Nyachae. Rather than dismissing CIC as a temporary institution that may not last more than two years Muigai would do well to point out openly and publicly what suggestions made by Nyachae are unconstitutional. After all Nyachae has done exactly that – pointing out specific areas of the passed laws that go against the spirit and the letter of the new Constitution.

If the Kibaki regime is having second thoughts about some pertinent issues of the constitution which are intended to bring about change in this country, then the matter must be debated in public in the manner suggested by Nyachae. Kenyans are aware of some very dirty tricks being used by those who opposed the new Constitution but unfortunately are now mandated with the task of implementing it. If the new Constitution is implemented fully then a good number of corrupt top civil servants will have to be shown the door. These are the people now trying to torpedo the implementation of the new Constitution.

Nyachae, for example, says some provisions in the enacted legislation either violate the letter of the constitution or are in conflict with the reformist spirit of the Constitution. He maintains that in order to initiate amendments to certain pieces of legislation, CIC audited all legislation enacted in 2011 and submitted its views to the Attorney General in September 2011. Nyachae says this legislative audit was also shared with the President, the Prime Minister and the National Assembly. According to him CIC hopes that the AG will take steps to ensure amendments to bring these statutes in line with the constitution are effected as soon as possible. Unfortunately he reveals that in the meantime, it is a matter of concern and regret for CIC that it has yet to receive response or feedback to the said legislative audit.

As Kenyans of great nationalistic commitments, Nzamba Kitonga and his team of drafters could predict that efforts would be made to water down the revolutionary suggestions of the new Constitution. They therefore came up with a special chapter that enables ordinary people to challenge whoever tries to play dirty games with the new Constitution in court. Article 258 (1) says every person has the right to institute court proceedings, claiming that the new Constitution has been contravened, or is threatened with contravention.

Ordinary Kenyans who for decades have been exploited legally because of a faulty constitution which was amended by crooks to give themselves more political , social and economic powers must not let Charles Nyachae fight the current battle single handed. The enlightened civil society joined by the ordinary people , if necessary in the Egyptian and Tunisian styles, should join hands and make sure the new constitution is implemented to the letter without the tampering of the new constitution by the “reds” and the watermelons.