Exactly 19 days into the 5th anniversary of promulgation of 2010 Constitution, Parliament is staring at yet another possibility of having to save itself from dissolution over failure to pass necessary laws.
At stake are 28 pieces of legislations at various stages of preparation which must be passed by August 27 failure to which a process to dissolve Parliament can commence.
On Friday, Attorney General Githu Muigai washed his hands off the matter saying he has deposited all the necessary draft Bills – in two batches – to the offices of Majority Leaders of the National Assembly and Senate.
Some of the Bills especially the ones touching on land and one-third gender rule are quite emotive and involving in terms of consensus building and political horse-trading.
Parliament’s leadership as well as other key players involved in preparation and execution of the Bills among them the Commission for Implementation of the Constitution (CIC) is already anticipating failure to meet the deadline.
“I can assure you there is no cause for alarm. The date will be extended just as has been done since 2011,” National Assembly Speaker Justin Muturi who is out of the country, told The Standard on Saturday yesterday.
Parliament has in the past either extended the deadlines or hurriedly passed the Bills through a guillotined process.
Article 261 of the Constitution grants MPs the powers to extend the period through a resolution supported by two thirds of the members of the National Assembly.
The extension cannot exceed one year and can only happen once in respect of any particular matter. The circumstances must also be exceptional in the consideration of the Speaker.
“If Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter,” Article 261 (5) says. The High Court may order Parliament and the Attorney General to pass the laws and if they fail the Chief Justice would advise the President to dissolve Parliament.
“No one would, in their right frame of mind, dissolve Parliament. The fact of the matter is that an extension by a full year is inevitable in the circumstances. Those who prepared the schedule of laws for implementation of the Constitution appear to have left too many laws for the last year,” Senate Majority Leader Kindiki Kithure said.
Law Society of Kenya, another critical stakeholder in the preparation of laws however, believes it is possible to meet the deadline if MPs worked a little bit harder. Chairman Eric Mutua is nevertheless worried about the quality of some laws if passed in a rush.
“An extension would be in order if valid reasons are advanced. However, if the extension is sought on account of laxity or other foreseeable circumstances it would be unwarranted. The Constitution is clear that extension should be sought only in exceptional circumstances,” Mr Mutua said yesterday.
Extend the period
CIC, which is mandated to monitor implementation of the Constitution appears to have given up on the August 27 deadline.
Chairman Charles Nyachae is also anticipating a miss of the deadline: “Realistically, Parliament may have to extend the period prescribed for their passage. A number of them require a lot of consensus building, exchange of views and rigorous debate which cannot be afforded by the remaining time.”
The AG said the back and forth process or preparing the Bills is elaborate and no single entity can be blamed for any delays that may have accrued over time.
“There is this misunderstanding that the AG creates all this Bills. I wish these commentators would know that the AG is merely a draftsman who ensures the Bills are legally and logically ordered. The ministries do most of the groundwork,” he said.
The Bills deposited last week are the Small Claims Court, 2015, High Court Organisation and Administration Bill, 2015, Court of Appeal Organisation and Administration Bill, 2015, Forests Bill, Energy Bill and Petroleum Exploration, Development and Production Bill, all of 2015.
Others are Seeds and Plant (Varieties) Amendment Bill, 2015, Community Land Bill2015 and Protection of Traditional Knowledge & Traditional Cultural Expression Bill, 2015.
“This morning (Friday) I have dispatched the second batch of the laws to the two offices. The important thing to say is that all of them are now with the Leaders of Majority of the two Houses. It is now up to them to push them through the parliamentary process,” Prof Muigai said.
The other Bills required to be passed by August 27 are Physical Planning Bill, Historical Land Injustices Bill, Provision on Maximum and Minimum Acreage Bill, Eviction and Resettlement Bill, Access to Justice Bill, Magistrates Court Bill, 2014 and Judiciary Fund Bill.
Others are Bills to amend the Judicial Service Act, restructure the provincial administration, implement the two-third gender rule, promote representation of marginalised groups in Parliament and strengthen Kenya Agriculture and Livestock Research Act, 2013.
Also to be passed is the Irrigation Bill, Central Bank of Kenya (Amendment) Bill, 2015, Controller of Budget Bill, 2015, Language Bill 2015 and National Museum and Heritage Bill, 2015.
The 28 Bills are the last batch of laws supposed to be enacted in the five year window created under the fifth schedule of the Constitution.
Yesterday, the two Majority Leaders claimed they had not seen all the Bills. National Assembly Majority Leader Aden Duale said he had only received 15 Bills and not all the 28. Prof Kithure on the other hand said he had only received two Bills by the time Senate broke for recess a week ago.
Both Houses are on recess. National Assembly took a week long break on Thursday to enable members to attend the African Region Conference of the Commonwealth Parliamentary Association.
By the time the House reconvenes on August 18, the August 27 deadline will be left with six sittings. The Senate on the other hand has taken a longer break of up to September 15 to enable members “catch up with committee work, county responsibilities and personal commitments.”
“When I was mobbing he recess Motion, I put our members on notice that we may have to come back over these Bills. So they are aware. The proper thing would be to pass these laws by August 27 but it is also clear that it was foreseen that sometimes it may not be possible,” Kithure told The Standard on Saturday.
Yesterday, Nyachae said most of the Bills did not go through the elaborate process in which substantial Bills have been exposed to in the past.
The process involves proposal from executive, drafting by Kenya Law Reform Commission and AG, review by CIC and exposure to public participation, roundtable by key actors to agree on a consensus Bill, review by Cabinet, publication by AG and introduction in Parliament.
“In quite a number of these Bills, there have been situations where CIC is providing its input once the Bill is published or at the relevant committee of Parliament ahead of passage,” Nyachae said.