Presentation on theme: "EXPECTATIONS VS PROGRESS: A SCORE CARD FOR THE NATIONAL ASSEMBLY CHARLES NYACHAE, CHAIRPERSON COMMISSION FOR THE IMPLEMENTATION OF THE CONSTITUTION."— Presentation transcript:
EXPECTATIONS VS PROGRESS: A SCORE CARD FOR THE NATIONAL ASSEMBLY CHARLES NYACHAE, CHAIRPERSON COMMISSION FOR THE IMPLEMENTATION OF THE CONSTITUTION
Constitutional Character of Parliament The passage of the Constitution of Kenya 2010 fundamentally altered the character of Parliament In both composition, role and relationship with other state organs and the people of Kenya; e. g. – From a unitary parliament that straddles the legislature and executive with MPs serving as ministers to a bicameral system of Parliament – Establishment of county assemblies to legislate on devolved matters for the 47 counties. – Membership of the national assembly to manifest the diversity of the nation by providing for nomination of special interest groups
IMPLEMENTATION OF COK The four pillars anchoring implementation of the Constitution are: 1)Policies which are compliant with the letter and spirit of the Constitution 2)Laws which are compliant with the letter and spirit of the Constitution 3)Effective institutional frameworks and administrative procedures for the implementation of the Constitution 4)Respect of the constitution and the rule of by all.
Role of National Assembly I.Representation of the People II.Legislation III.Oversight These powers are to be exercised under sovereign authority delegated to the National Assembly by the people.
Role of Parliament, cntd Representation: In discharging the representative role MPs must ask and provide answers to this questions: Who is entitled? What are they entitled to? Who risks being left behind and why? What should be done, by whom and by when? The answers should be expressed in legislative, administrative, institutional and budgetary proposals developed by the National Assembly. Role of Parliament, cntd
- Representation is a cross cutting function that manifests itself in the discharge of other parliamentary functions. For effective representation, members of parliament must ensure that policies, laws, regulations and administrative acts are an expression of the will and aspirations of the electorate e.g failure to ensure that the Equalization Fund is disbursed four years after promulgation of the constitution is a failure to represent the interests of marginalised communities to access basic social services such as water.
The Constitution & Parliament Legislation Parliament has so far effectively played this role by passing about 140 pieces of legislation. – 3 Acts enacted in 2010 – 32 Acts in 2011 – 65 Act in 2012 and 2013 – 3 Amendments in 2010 – 16 Amendment Acts in 2011/2012/2013 – 12 laws enacted in 2014
The Constitution & Parliament All laws required under the Fifth Schedule to the Constitution (save for the laws that were due for enactment by 27 th August 2014, whose enactment time-lime was extended), have been passed.
o The laws for which a nine-month extension was given are on: Public Values, Rights of Persons Deprived of Liberty Environment, Public Audit, Fair Administrative Action, Public Procurement The Constitution & Parliament
Challenges in discharging the legislative function: In passing and adopting legislation unmet expectations and challenges that need to be addressed by parliament include:- I.Laws that claw back on the constitution – e.g. leadership and integrity, National Assembly Privileges Bill, The County Government (Amendment ) Act creating county development boards is a threat to devolution.
The Constitution & Parliament I.Failure to follow procedure under the Constitution e.g Article 110, 112 and 113 (for consultations and resolution of differences between the two houses of Parliament ) There is need to address supremacy battles between national assembly and the senate as will otherwise impede implementation of the Constitution. It was regrettable that the two houses of parliament had to resort to the judiciary to resolve the impasse on the Division of Revenue Act, The Supreme Court emphasized on the need to apply existing dispute resolution mechanism.
The Constitution and Parliament The court stated that: With regard to any future lack of accord of a similar nature, between the two Chambers of Parliament, there shall be an obligation resting on the State organs in question to resort to mediation, as a basis for harmonious functioning, as contemplated by the Constitution.
The Constitution and Parliament Irregular amendment of Bills and laws by the Executive and the Legislature without consulting other stakeholders Enactment of unconstitutional laws such as the amendment to the County Government Act to create county development boards – Different arms of government have their respective mandates.
The Constitution and Parliament e.g. The Commission reviewed the Leadership and Integrity Bill. However, the Bill which was published and enacted; did not establish transparent procedures and mechanisms for effective administration of Chapter Six, did not provide for the processes of review and appeals for persons dissatisfied with decisions of institutions vetting (Chapter Six as required by Article 47), and it does not provide for disciplinary mechanisms and penalties as required by Article 75 and Article 80(b) of the Constitution.
The Constitution & Parliament Article 261(4) the Attorney General, Kenya Law Reform Commission and CIC to be involved in the development of legislation under the Fifth Schedule. There is need to establish how rights of private members to initiate Bills can be implemented within Article 261(1 & 4) Section 14(2)(3)(d) of the sixth schedule. CIC and CRA to be given 30 days on devolution related legislation.
The Constitution and Parliament A number of laws passed end up misallocating functions to either level of government in contradiction with the 4 th schedule to the Constitution and allocation of county government functions to state corporations. (Especially in agriculture and livestock sectors) Unprecedented rash to amend the Constitution with various Bills in Parliament works, given our history in amending the constitution, we might just be opening a Pandora’s box to anarchy.
The Constitution & Parliament -Public Participation is required under Article 10, 118 and Article 119. However, Parliament has on several occasions called for memoranda from members of the public when no copies are available with Government Press and no soft copy of the Bill has been uploaded on the parliament or law reports website. Does that meet the threshold of public participation? Public participation must have content to be meaningful engagement
The Constitution & Parliament -OVERSIGHT: Oversight involves monitoring policy and allocation and use of resources to ensure that there is social optimisation. Monitoring ensures that policies relate to people’s priorities and that revenue and expenditure procedures and processes are appropriately designed to achieve those priorities. The Legislature’s ability to perform this role effectively depends on the formal supervisory powers it draws from the Constitution and the laws it makes.
The Constitution and Parliament There is need for MPs to ensure that oversight does not amount to interference. The relationship between the executive and legislature is a partnership. Oversight must be done in a way that does not create a perception that Parliament is the feared sword of Damocles. The oversight role must respect the principle of separation of powers between the different arms of government. For example. a misuse of the budget process by Parliament in ways that contravene the spirit of the Constitution. (e.g. failure to adequately finance commissions as required under Article 249(3) and reducing the budgetary allocation to the Judiciary in a supremacy battle.
The Constitution & Parliament The proposed socio economic audit of the constitution. The National Assembly must guard against using the audit as a basis for scuttle devolution and affirmative action principles in the constitution. The primary focus of the audit seems to be skewed towards financial concerns while the Constitution’s fundamental focus is citizen centered service delivery, i.e., ensuring efficient, effective, inclusive and equitable service delivery is realized. Emerging Impunity to the rule of law: failure to respect court orders by both Senate and the National Assembly is in breach of Article 10 that requires all state officers to observe the rule of law a national value and principle of governance.
The Constitution and Parliament Recommendations Appreciate constitutional role of other state organs and establish long lasting synergies with those organs. Identify Mechanisms that ensure the people of Kenya get value from the manner in which Parliament discharges its mandate and relates to other organs
The Constitution and Parliament To meet constitutional expectations members of parliament should check for the following in the discharge of their functions: - Consistency with the letter and spirit of the Constitution. Equity, equality and inclusivity. Public participation. The adequacy and sufficiency of the legislation and regulations in facilitating implementation of the constitution.
The Constitution and Parliament The need to achieve progressive implementation of the socio-economic rights The need to meet the objects and principles of devolution. Equitable distribution of resources and prudent use of public resources. Need to promote protect and uphold the constitution and the rule of law and meet demands of Chapter Six on leadership and integrity Civic education to empower the people with knowledge for effective participation in governance.
Promote Constitutionalism and the Rule of Law …every single person became subject, …………. to those laws, which he himself, as part of the legislative, had established; nor could any one, by his own authority; avoid the force of the law, when once made; nor by any pretence of superiority plead exemption, thereby to license his own, or the miscarriages of any of his dependents. No man in civil society can be exempted from the laws of it: … John Locke, The Second Treatise of Government, 1690