Implementation of the Constitution; an Independent Status Report

B. W. Namano 8/27/2011

Implementation of the Constitution; an Independent Status Report

ACRONYMS AND ABBREVIATIONS AG ASAP CJ CIC CIOC CoE DPM FIDA IIEC KNBS PM PSC MP SWOT Attorney General As Soon As Possible Chief Justice Commission for the Implementation of the Constitution Constitutional Implementation Oversight Committee Committee of Experts Deputy Prime Minister Federation De International Abogadas Independent Interim Electoral Commission Kenya National Bureau of Statistics Prime Minister Public Service Commission Member of Parliament Strengths, Weaknesses, Opportunities, Threats

UNICEF United Nations Childrens Fund YR Year

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Implementation of the Constitution; an Independent Status Report

EXECUTIVE SUMMARY The complete implementation of Kenyas second constitution is expected to institute several reforms. These include: considerable changes to the countrys government structure, a broader concept of human rights, transparent appointment procedures for public officers, entrenched institutional independence, power devolution, guaranteed checks and balances on the executive among other expectations. This independent report deliberates on the apparent progress made by Kenya in implementing its second Constitution as of to date. The Author responds to the publics need of having a general overview of the constitution a year into its enforcement. The report performs a SWOT analysis of the implementation process and contains the developed bills with their current status along the path of implementation.

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Implementation of the Constitution; an Independent Status Report

BACKGROUND The Constitution which came into force at independence, on 12 December 1963, guided Kenyas political and socio-economic development for 47 years and was subjected to 38 amendments. After the postelection violence, from the disputed December 2007 Presidential Election, 2 pieces of legislation were enacted to lead Kenyans to a new Constitution. One was the Constitution of Kenya (Amendment) Act 2008 enacted on 22 December 2008 providing the roadmap to constitutional reforms and established the organs and mechanisms for constitutional review. The second was the Constitution of Kenya Review Act 2008, enacted on 29 December 2008, which provided a legal framework for the organs and mechanisms established under the Constitution of Kenya (Amendment) Act 2008. The referendum held on 4 August 2010, monitored by the Independent Interim Electoral Commission (IIEC), resulted in about 66.91% of the votes cast voting for the adoption, against 30.69% of the voters voting against the adoption, of the Harmonized Constitution proposed by the Committee of Experts (CoE). Consequently, this new Constitution was adopted and officially became effective when it was promulgated by the President on 27August 2010. The enactment aspect entails the creation and implementation of legislations that are exclusively in favor of the adopted constitution.

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Implementation of the Constitution; an Independent Status Report

ACKNOWLEDGEMENTS The research and authorship of this report has been done independently without any organizational affiliation or vested economic or political interest. This report benefits from other official reports drawn by key stakeholders in the process and observations made by opinion leaders. The information, statistics and comments used to finalize this report were researched and derived from various institutions official websites.

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Implementation of the Constitution; an Independent Status Report

TABLE OF CONTENTS
ACRONYMS AND ABBREVIATIONS ..................................................................................................... ii EXECUTIVE SUMMARY ......................................................................................................................... iii BACKGROUND ......................................................................................................................................... iv ACKNOWLEDGEMENTS .......................................................................................................................... v TABLE OF CONTENTS ............................................................................................................................. vi LIST OF TABLES ...................................................................................................................................... vii INTRODUCTION ........................................................................................................................................ 1 A SWOT ANALYSIS OF THE CONSTITUTIONAL IMPLEMENTATION PROCESS ......................... 3 STRENGTHS ..................................................................................................................................... 3 WEAKNESSES .................................................................................................................................. 6 OPPORTUNITIES .............................................................................................................................. 8 THREATS........................................................................................................................................... 9 CONCLUSION ........................................................................................................................................... 11 APPENIX: Summary of Progress made in the Development of Legislation .............................................. 14 BIBLIOGRAPHY ....................................................................................................................................... 26 ABOUT THE AUTHOR ............................................................................................................................ 29

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Implementation of the Constitution; an Independent Status Report

LIST OF TABLES
Table 1: BILL TRACKER as at 27 August 2011 ....................................................................................... 14

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Implementation of the Constitution; an Independent Status Report

INTRODUCTION A constitution is a body of fundamental principles by which a State or other body is governed 1; its the supreme law upheld by an establishment and takes precedence over any rule exercised within the confines of its laid down limits. In this regard, its unchallengeable legal superiority demands that all acts fully conform to its stipulated framework or otherwise be deemed as void and consequently be nullified. The constitution is immune from any indictment in the span of its execution; its legality or validity can never be questioned nor be challenged at any point in time or place. Everything drafted in a constitution is esteemed as absolute truth and therefore revered by those subject to it. In essence, we are sold under a constitution of our own choosing; we surrender and are brought into bondage to its dictates. We live by it and owe our primary allegiance to it. On the 4th of August 2010, Kenyan citizens approved a new constitution (the Constitution) in a national referendum. 2 Consequently, the New Constitution was officially promulgated by the President 3 on the 27th of August 2010-the Effective Date-Article 263. 4 Under the preamble section of this document, the people of Kenya vowed to adopt, enact and

1 2

Pocket Oxford Dictionary, Oxford University Press, Walton Street Oxford OX26DP, March 1994. OESDRL, Kenya, State, 2010, p.1, retrieved 9 August 2011, http://www.state.gov/documents/organization/160127.pdf>. 3 A Waki & W Gituro, The New Constitution of Kenya: the Process of Implementation, Coulson Harney Nairobi, 2011, p. 1, retrieved 16 August 2011, <www.coulsonharney.com/LawArticles/Documents/The%20New%20Constitution%20%20Implementation.pdf>. 4 The Proposed Constitution of Keya, The Attorney-General, Nairobi, 2010, p.153, retrieved 19 August 2011, <http://www.attoneygeneral.go.ke/index.php?option=com_docman&task=doc_download&gid=33&Itemid=391>

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Implementation of the Constitution; an Independent Status Report give the constitution to themselves and to their future generation. 5 By approving the proposed constitution, Kenyans freely chose to abide by all its statutes. According to the 6th Schedule of the Constitution, the Constitutional Implementation Oversight Committee (the CIOC) and the Commission for the Implementation of the Constitution (the CIC) are to drive the implementation process. 6 The CIOC is the primary implementation institution constituted on 5 October 2010 by parliament. Composed of 27 parliamentarians drawn from all sides of the political divide but under the chairmanship of Hon. Hussein Mohammed Abdikadir, it is to coordinate with the Attorney-General (AG), the CIC and relevant parliamentary committees to ensure the timely introduction and passage of the required legislation among other duties. It is the organ that must ensure the successful implementation of all legislations as demanded by the Constitution within the least period of time. 7 The CIC came into being on 4th January 2011 when the Chairperson and the Commissioners were sworn in by the CJ. 8 CIC is charged with facilitating, monitoring and overseeing the implementation of the Constitution. 9. It is also to liaise with the AG, Kenya Law Reform Commission in preparing bills for tabling, report to the CIOC on and progress and any impediments in the implementation. It is to detail the bills to the last iota. 10

5 6

ibid., p.153. The Proposed Constitution of Keya, op. cit., p. 169. 7 ibid. 8 Commission for the Implementation of the Constitution, CIC Quarterly Cover Final, CIC Kenya, March 2011, p. ii, retrieved 17 August 2011, <www.cickenya.org/reports/first-quaterly-report>. 9 The Proposed Constitution of Keya, op. cit., p. 6. 10 ibid., p. 170.

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Implementation of the Constitution; an Independent Status Report A SWOT ANALYSIS OF THE CONSTITUTIONAL IMPLEMENTATION PROCESS This report intends to explore the Strengths, Weaknesses, Opportunities and Threats perceived, in the last year, during the Constitutional implementation process. STRENGTHS The CIOC has so far succeeded in synchronizing the different works done by the multiple institutions mandated to work together towards the passage of laws necessary for the further implementation of the Constitution. The 9 member CIC team consists of intellectuals and persons with tones of experience in public administration, human rights and government: Mr. Charles Nyachae as Chairperson, Vice Chairperson Dr. Elizabeth Muli, Dr. Ibrahim M Ali and 6 University of Nairobi degree holders (Prof. Peter Wanyande, Dr. Florence Omosa, Ms. Catherine Mumma, Mr. Philemon Mwaisaka, Mr. Kamotho Waiganjo and Mr. Kibaya Imaana Laibuta) as conveners; each assigned individual thematic teams with specific tasks. 11 These commissioners, under the direction of the Chairperson, have mapped out an implementation plan, reached out to the public seeking their active participation, engaged stakeholders and development partners in productive consultations while professionally facilitating, keenly monitoring and coordinating CICs activities. Noticeably, the CIC commission understands its great significance and the imperative responsibilities it bears in the implementation process; in the execution of its mandate, CIC has faithfully adheres to Article 10 of the Constitution in addition to conjuring its own noble values and principles that affirm the former and guide the Commission in its endeavors. 12

11 12

Commission for the Implementation of the Constitution, op. cit., p 38-40. ibid., p.5.

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Implementation of the Constitution; an Independent Status Report The checks and review mechanisms inscribed in the Constitution have stirred the implementation process on course. For instance, in the 5th Schedule are listed the fundamental Legislations to be enacted by Parliament with a time line tagged to each one of them; the schedule gives a prioritization scale for primary Legislations making it a sensible guide essential to the timely enactment of bills. Plus, seeing that this schedule constitutes part of the supreme law of the Republic 13, it is imperative that it be strictly adhered to in the spirit of the Constitution. Article 261 (5) to (7) gives petitioning powers to the people and outlines the steps to be followed incase parliament derails the implementation process. (5) If Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter. (6) The High Court in determining a petition under clause (5) may (a) make a declaratory order on the matter; and (b) 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. (7) If Parliament fails to enact legislation in accordance with an order under clause (6) (b), the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament. 14 Article 4 (2) states, The Republic of Kenya shall be a multi-party democratic State 15 In the dispensation of this democratic atmosphere, the law making process

13 14

ibid., p. 13. ibid., p. 152.

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Implementation of the Constitution; an Independent Status Report demands the collective indulgence of the CIOC, the CIC, the AGs office, Government ministries, specialist task forces, the Kenya Law Reform Commission and the public in the generation, discussion, quality control, consensus building, and passage of the laws. As a result, the enacted laws perfectly reflect the norms of the Kenyan society as outlined in the constitution and conform to the ideals of a vibrant democratic system. Stakeholder consultations have enriched the lawmaking machinery; this new tact in the legislation process has resulted in the design\of high quality proposed bills that are debated and speedily enacted into law. 16 According to Article 261 (2), ... the National Assembly may, by resolution supported by the votes of at least two-thirds of all the members of the National Assembly, extend the period prescribed in respect of any particular matterby a period not exceeding one year. 17 The constitutions flexibility gives leeway for consensus building over issues that are critical to the legislation process but prove to be trivial and in need of more consultations and time. As a result, the drafted bills reflect more than personal or partisan interests but capture public interests.

15 16

ibid., p.14. K Kibwana, It has been a great journey with a new Constitution, lets respect its principles, The Standard | Online Edition, 22 August 2011, retrieved 22 August 2011, <http://www.standardmedia.co.ke/InsidePage.php?id=2000041220&cid=507&>. 17 The Proposed Constitution of Keya, op. cit., p. 152.

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Implementation of the Constitution; an Independent Status Report WEAKNESSES In Article 261 (4), 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. 18 Though it was anticipated that the AGs office was to liaise with the CIC in the drafting of new bills, the Constitution fails to clearly outline its specific roles as it does those of the CIC. Consequently, as noted by Brian Ikol, The Office of the Attorney-General has fallen short of its mandate to give legal opinion in terms of faithful implementation of the Constitution and this has led to a lack of clarity in the implementation process. 19 Selective reading of the document, by stakeholders, has led to occasional misinterpretation of some Constitutional provisions. Consequently, conflicting bills regarding the same subject are developed leading to delays in the process as time is spent in resolutions and consensus building. The Kenyan parliament had to deal with a backlog of about 15 bills in less than a week owing to the Executives laxity in facilitating the process; as of 22 August 2011, it had only passed 7 major laws since the constitution was promulgated. The DPM, Hon. Musalia Mudavadi, noted that the sudden rush to beat the deadline meant minimal interrogation of bills; a move that does not augur well with the spirit of enacting good laws 20 FIDA, through

18 19

The Proposed Constitution of Keya, op. cit., p. 152. B Ikol, The Commission for the Implementation of the Constitution, Second Quarterly Report on the Implementation of the Constitution, CIC Kenya, June 2011, retrieved 17 August 2011, <www.cickenya.org/reports/second-quaterly-report>. 20 M Mwajefa, Mudavadi rules out August poll date, Daily Nation, 22 August 2011, retrieved 22 August 2011, <http://www.nation.co.ke/News/politics/Mudavadi+rules+out+August+poll+date+/-/1064/1222914//qgbvnu/-/>

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Implementation of the Constitution; an Independent Status Report its chairperson Naomi Wagereka, shared similar sentiments stating that the country risked passing laws that were unconstitutional. 21 As of 22 August 2011, the CIC had a staff of 77 (45 seconded by the Government and 32 recruited by CIC.) while a study, commissioned by the PSC, came up with a tentative staffing requirement of 117. There are claims that the Executive has been frustrating CICs staffing exercises; allegations to which the PM, Hon. Raila Odinga, strongly refuted adding that the Government could only second CICs staff if requested to do so. 22 In this light, it should be the exclusive prerogative of the commission to recruit its staff to maintain its integrity and that of the process. According to a 2004-2008 statistical survey by UNICEF, 92 % of the male and 93 % of the female youth (15-24 yrs) population in Kenya are literate; in overall, Kenya has an adult literacy rate of 87 % (2005-2008). 23 Even though most Kenyans can read and write, a majority either live obliviously or have limited access to first hand information; with a population of 38, 610,097 according to the 2009 census results, 74 % of Kenyans own a radio, about 28 % have the luxury of watching a TV set, 63.2 % poses a mobile phone, only 3.6 % can call a computer their own 24and out of 100 people in Kenya only 9 access and use the internet. 25 The Bill Tracker on CICs website is often outdated while Parliaments is revised after lengthy intervals. In addition, both are hardly in synch. This is misleading and confusing!
N Wagereka, FIDA: Rushed law process dangerous, Capital FM, 20 August 2011, retrieved 23 August 2011, <http://www.capitalfm.co.ke/news/?ews_pid=28341>. 22 P Opiyo, A Ndegwa & D Ochami, State bows to pressure, agrees to pay CIC salaries, The Standard | Online Edition, 20 July 2011, retrieved 22 August 2011, <http://www.standardmedia.co.ke/parliament/InsidePage.php?id=2000039343&cid=37&story=State%20bows %20to%20pressure,%20agrees%20to%20pay%20CIC%20salaries>. 23 United Nations Childrens Fund, UNICEF Kenya Statistics, UNICEF, 2009, retrieved 24 August 2011, <http://www.unicef.org/infobycountry/kenya_statistics.html>. 24 W Oparanya, 2009 Population and Housing Census Results, Kenya National Bureau of Statistics, 2009, pp. 3238, retrieved 12 August 2011, <http://www.knbs.or.ke/docs/PresentationbyMinisterforPlanningrevised.pdf>. 25 UNICEF, loc. cit.
21

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Implementation of the Constitution; an Independent Status Report OPPORTUNITIES Theres plenteous room for public education and awareness campaigns to enlighten the people on matters constitutional; this can be a voluntary initiative from legal experts, civil societies or the media provided it is done in sincerity without partiality. This uzalendo (true citizenship) gesture to eradicate ignorance, will erode public gullibility, instill the spirit of this Constitution, revive a sense of public allegiance and respect for the Constitution plus foster public participation in the implementation process. To pass more bills in time and beat deadlines without compromising on their quality, pressure on the cabinet should be eased by the immediate reconstitution of an agenda centered Legal Affairs Committee to succeed the previous regime that was dogged by endless political tussles and controversies since February; it was finally banned by parliaments House Business Committee when it failed to appoint a new chairperson on the evening of 16th August, 2011. According to the Hon. Musalia Mudavadi, A non-functioning Legal Affairs committee and partisan interests among the political divide are to blame for the backlog of Bills at different stages of the implementation process 26 The inclusion of wanjiku in stakeholders meetings is wanting. So far, a majority of the forums conducted have sought the opinions of persons from the professional or learned class while ignoring the majority established in the rural and informal sectors.

26

Mwajefa, loc. cit.

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Implementation of the Constitution; an Independent Status Report THREATS Sabotage by Legislative and members of the Executive who not only misinform the public on bills and enactment procedures, but also deliberately invent gray areas in the Constitution to maliciously impede the implementation process. The un-receding chaos in the Kenyan government, work against the implementation process. Having been constituted by the National Accord and Reconciliation Act 2008, after the so called Agreement on Principalities of Partnership of the Coalition Government on 28 February 2008, 27 the local and international socio-political developments have done little to foster the accords ideals. i.e. to enable Kenyas political leaders to look beyond partisan considerations with a view to promoting the greater interest of the nation as a whole 28 In fact, Kenyans have watched a coalition of convenience being marred by railing accusations of: mistrusts, betrayals, wrangles, impunity, impenitence, irresponsibility, greed, corruption, fallouts to name but a few vices. With just a year to the next elections, things are bound to get worse as allies sever ties and foes embrace in bid to capture power. The remuneration packages being paid by the government to the CIC commissioners, as was recommended by the PSC, are on the higher side: 29 The chairperson makes Kshs 1.24 million a month inclusive of allowances and is entitled to a leave allowance of Kshs 65,000 p.a. The vice chairperson is paid Kshs 1.12 million p.m., and Sh50, 000 a year as leave allowance. The other six commissioners take home Kshs 1.09 million p.m. and an annual leave allowance of Kshs 50,000. Note that the CIC shall stand dissolved 5 years after it is established or at the full implementation of this Constitution, whichever comes first.

27

S Wako, The National Accord and Reconciliation Bill 2008, Kenya Law Reports, 2008 , p. 9, retrieved 22 August 2011, p. 9, <http://www.kenyalawreports.or.ke/klr/fileadmin/pdfdownloads/Bills/2008/The_National_Accord_and_Reco nciliation_Bill_2008.pdf>. 28 S Wako, op. cit., p. 6. 29 P Opiyo, loc. cit.

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Implementation of the Constitution; an Independent Status Report However, the National Assembly may, by resolution, extend its life. 30 If we consider the first scenario, then in 5 years times the burden on the taxpayer by the:

Assuming there are no reviews to these packages and all other factors are kept constant, the total burden on the common taxpayer in 5 years becomes:

Are these figures fiscally sustainable? Know that at least 56 per cent of the Kenyan population was living below the poverty line as of 2003 and at the current trend, it is projected that 65.9 per cent of the Kenyan population will be living below the (1dollar a day) poverty line by 2015. 31 In this light, theres need to establish the Salaries and Remuneration Commission (Article 230) ASAP.

30 31

The Proposed Constitution of Keya, op. cit., p. 170. The Ministry of Planning and National Development, UNDP Kenya & The Government of Finland, Millennium Development Goals in Kenya; Needs & Coast, UNESCO, 2005, p. 4, retrieved 12 August 2011, <http://planipolis.iiep.unesco.org/upload/Kenya/Kenya%20MDG%20Needs%20Assessment.pdf>.

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Implementation of the Constitution; an Independent Status Report CONCLUSION Until 24 August 2011, only a handful of the 25 Bills to be enacted as proposed by the constitution had been signed into law. These are: The Independent Offices (Appointment) Bill 2011, The Vetting of Judges and Magistrate Act 2011, The Judicial Service Act 2011, The Independent Electoral & Boundaries Commission Act 2011, The Supreme Court Act 2011, The Independent Offices (Appointment) Act 2011, The Commission for the Implementation of the Constitution Act 2011, The National Gender and Equality Commission Bill 2011 and The Salaries and Remuneration Commission Bill 2011. 32 On 23 August 2011, the House Business Committee approved Motions to have legislatures sit extra hours for three consecutive days starting the 24th of August 2011 to debate Bills that must be passed by the Legislature and signed into law on the 26th of August 2011. The Kenyan parliament passed a procedural Motion, on the 25th of August to reduce the process of introducing, debating and approving The Commission on Revenue Allocations Bill 2011, The National Government Loans Guarantee Bill 2011, and The Contingencies Fund and County Funds Emergency Bill 2011 from the traditional 14 days to 1 day. As a result, on Thursday the 25th, the House passed a record six Bills in just over two hours. The 6 Bill passed were: The National Police Service, The Commission on Administration of Justice, Power of Mercy, Environment and Land Relations Court, Urban Areas and Cities, and The Citizenship and Immigration Bills. On Friday, 26 August 2011, the MPs approved The Kenya Citizens and Foreign Nationals Management Service Bill 2011, The Contingencies Fund and County Emergency
32

Kenya National Assembly 10th parliament, 4th Session, Bill Tracker as at 24th August 2011, Parliament of Kenya, 2005, pp. 2-6, retrieved 23 August 2011, <http://www.parliament.go.ke/index.php?option=com_docman&task=doc_download&gid=1109&Itemid=>.

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Implementation of the Constitution; an Independent Status Report Funds Bill 2011, The Elections Bill 2011, The National Government Loans Guarantee Bill 2011, and The Commission on Revenue Allocation Bill 2011 after hasty amendments. So far, the process has considered approximately 46 Bills. 24 enacted, 1 awaiting AGs publication having already been approved by Cabinet, 1awaiting cabinet approval, 18 still undergoing CICs internal review and stakeholder consultation while 2 are on hold. Out of the expected 24 bills to be completed within year one of the Constitution of Kenya 2010, only the Public Finance Management bill delayed by policy differences between stakeholders is yet to be completed by CIC. 33 While addressing Kenyans on the Constitution promulgation anniversary, the president-Hon. Emilio Mwai Kibaki,-notes, Our National Assembly and all the other institutions concerned have passed twentyfive laws which directly impact on the implementation of the Constitution. These are the laws itemized in the Fifth Schedule of the Constitution. 34 Article 3 (1) of the Constitution (regarding its defense) states that Every person has an obligation to respect, uphold and defend this Constitution. 35 This responsibility is bestowed upon every Kenyan-minors and adults alike; failure to observe this rule is tantamount to an act of hostility in direct violation of the constitution. It is paramount to appreciate and participate in the constitutional implementation process.

33

Commission for the Implementation of the Constitution, CIC meets target deadline for 23 bills, CIC Kenya, 17 August 2011, retrieved 17 August 2011, <www.cickenya.org/consitutin%20implementation/home.htm>. 34 President Kibaki addresses Kenyans on Constitution promulgation anniversary, Mwakilishi, Kenya, 26 August 2011, retrieved 26 August 2011, <http://www.mwakilishi.com/content/article/2011/26/president-kibakiaddresses-kenyans-on-constitution-promulgation-annivers>. 35 The Proposed Constitution of Keya, op. cit., p.14.

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Implementation of the Constitution; an Independent Status Report Since this is NOT a sanctioned report, there are no recommendations proposed in it. Instead, they can be deduced from the preceding SWOT analysis.

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Implementation of the Constitution; an Independent Status Report APPENIX: Summary of Progress made in the Development of Legislation From the Constitutions 5th Schedule, one can derive the Legislations Implementation Schedule details as computed in Table 1.The Apparent Progress indicators-as of 27 August 2011- are compiled from Bill Tracker sources at CICs, parliament of Kenya and other media sources official websites. Table 1: BILL TRACKER as at 27 August 2011 From Table 1, one can gauge the progress made in the Implementation process a year after its promulgation.

Apparent Progress of BILLS along the path of Implementation Time frame Event/ Legislation Ref. Enacted into law Passed by Before Parliament Parliament for awaiting debate Presidential Assent. Forwarded Awaiting Awaiting Undergoing to publication; approval internal review & Attorney Already by cabinet stakeholder General for approved by consultation publication Cabinet On Hold

2 months

The Establishment sixth of the Judicial schedule,Commission on Service section Administration Commission 20 (1) of Justice Bill, 2011

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Implementation of the Constitution; an Independent Status Report The Establishment sixth 3 of the schedule,Commission for the months Commission for section the 25 (1) Implementation of the Implementation Constitution, of the Act 2011 Constitution The Establishment sixth of the schedule,Commission on Revenue Commission of section Revenue 25 (1) Allocation Bill, 2011 Allocation 9 Salaries and sixth The Salaries & months Remuneration Schedule Remuneration Commission section Bill 2010 & 2011 25 (2)

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Implementation of the Constitution; an Independent Status Report 1 year Legislation on article 18 The Kenya Citizenship and citizenship Immigration Bill, 2011 The Kenya Citizens and Foreign Nationals Management Service Act, 2011 Kenya National article 59 The National Commission on Human Rights Gender Act, and Equality 2011 Commission The Kenya National Human Rights Commission Act, 2011 The Ombudsman Commission Act, 2011

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Implementation of the Constitution; an Independent Status Report Ethics and anti- article 79 The Ethics and Anticorruption Corruption commission Commission Bill, 2011 Legislation on elections Electoral disputes Independent electoral and boundaries commission article 82 article 87 article 88

The Election Bill, 2011 The Independent Electoral & Boundaries Commission Act, 2011 The Political Parties Bill, 2011

Legislation on political parties Vacation of office of member of Parliament Power of mercy

article 92 article 103

article The Power of 133 Mercy Bill, 2011

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Implementation of the Constitution; an Independent Status Report System of courts article 62 The Judicial Service Act, 2011

Establishment Article The Supreme of the Supreme 21 (1) Court Act, 2011 Court and appointment of judges Removal from office of judicial officers Vetting of judges and magistrates Election of speaker of county assembly Legislation on governance of urban areas and cities article 168 sixth The Vetting Of schedule, Judges And section Magistrate Act, 2011 23 article 178

The Urban article 184 Areas and Cities Bill, 2011

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Implementation of the Constitution; an Independent Status Report Contingencies fund The article 208 Contingencies Fund and County Emergency Funds Bill, 2011 article 213 The National Government Loans Guarantee Bill,2011

Loan Guarantees by national government

1.5 years

The Legislation on article 68 Environment land and Land Court Bill, 2011 Legislation on article effect of 200, Chapter 11 sixth Devolved schedule, Government section 15 Removal of county governor article 181 The Transition to Devolved Government Bill, 2011

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Implementation of the Constitution; an Independent Status Report Vacation of office of member of county assembly Revenue funds for county governments article 194

article 207

The County Governments Financial Management Bill, 2011

2 years

Legislation on leadership Right of recall Determination of questions of membership of parliament Right to petition parliament Assumption of office of president Judiciary fund

article 80 article 104 article 105

article 119 article 141 article 173

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Implementation of the Constitution; an Independent Status Report Financial control National security organs article 225 article 239 Public Financial Management Bill The National Security Council Bill, 2011 The National Intelligence Service Bill, 2011 Command of the National Police Service Freedom of the Support for county governments Public participation and county assembly powers privileges and immunities County assembly, article 245 The National Police Service Commission Bill, 2010

3 years

article article 190 article 196

The Devolved Government Bill, 2011

article 197

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Implementation of the Constitution; an Independent Status Report gender and balance diversity 4 years Consumer Protection Fair administrative action article 46 article 47

Fair hearing Rights of persons detained or held in custody Legislation regarding environment Accounts and audit of public entities

article 50 article 51

article 72 article 226

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Implementation of the Constitution; an Independent Status Report Procurement of public goods and services Values and principles of public service 5 years Legislation in respect of Family article 227

article 232

article 11 article 45 Family Protection Act, 2007 The Marriage Bill, 2011

Community land

article 63

Regulation of article 66 land use and property Agreements relating to natural resources article 71

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Implementation of the Constitution; an Independent Status Report Promotion of representation of marginalized groups Any other legislation required by the New Constitution article 100

The Independent Offices (Appointment) Act 2011 The Employment and Labour Court Bill, 2011

The The The The Independent RatificationIntergovernmental Private Policing of Treaties Fiscal Relations Security Oversight Bill, 2011 Bill, 2011 Industrial Authority Regulation The Births and Bill, 2010 Bill, 2010 Deaths registration Bill, 2011 The National The Coroners Intergovernmental Service Bill Relations Bill, 2010 & 2011 2011 The Refugee Bill, 2011 The Matrimonial Property Bill, 2011 Identification and Registration of Kenya Citizens Bill, 2011

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Implementation of the Constitution; an Independent Status Report Public Financial Management Bill The National Land Commission Bill 2011 The Controller of Budget Bill, 2011 Re-organisation Sixth and Schedule restructuring of section 17 the Provincial Administration Bill Count

24

18

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Implementation of the Constitution; an Independent Status Report

BIBLIOGRAPHY Commission for the Implementation of the Constitution, CIC meets target deadline for 23 bills, CIC Kenya, 17 August 2011, retrieved 17 August 2011, <www.cickenya.org/consitutin%20implementation/home.htm>. Commission for the Implementation of the Constitution, CIC Quarterly Cover Final, CIC Kenya, March 2011, retrieved 17 August 2011, <www.cickenya.org/reports/firstquaterly-report>. Ikol Brian, The Commission for the Implementation of the Constitution, Second Quarterly Report on the Implementation of the Constitution, CIC Kenya, June 2011, retrieved 17 August 2011, <www.cickenya.org/reports/second-quaterly-report>. Kenya National Assembly 10th parliament, 4th Session, Bill Tracker as at 24th August 2011, Parliament of Kenya, 2005, pp. 2-6, retrieved 23 August 2011, <http://www.parliament.go.ke/index.php?option=com_docman&task=doc_download &gid=1109&Itemid=>. Kibwana Kivutha, It has been a great journey with a new Constitution, lets respect its principles, The Standard | Online Edition, 22 August 2011, retrieved 22 August 2011, <http://www.standardmedia.co.ke/InsidePage.php?id=2000041220&cid=507&>. Mwajefa Mwakera, Mudavadi rules out August poll date, Daily Nation, 22 August 2011, retrieved 22 August 2011, http://www.nation.co.ke/News/politics/Mudavadi+rules+out+August+poll+date+//1064/1222914/-/qgbvnu/-/>.

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Implementation of the Constitution; an Independent Status Report OESDRL, Kenya, State, 2010, p.1, retrieved 9 August 2011, <http://www.state.gov/documents/organization/160127.pdf>. Oparanya Wycliffe Ambetsa, 2009 Population and Housing Census Results, Kenya National Bureau of Statistics, pp. 32-38, 2010, retrieved 12 August 2011, <http://www.knbs.or.ke/docs/PresentationbyMinisterforPlanningrevised.pdf>. Opiyo Peter, Ndegwa Alex & Ochami David, State bows to pressure, agrees to pay CIC salaries, The Standard | Online Edition, 20 July 2011, retrieved 22 August 2011, <http://www.standardmedia.co.ke/parliament/InsidePage.php?id=2000039343&cid=3 7&story=State%20bows%20to%20pressure,%20agrees%20to%20pay%20CIC%20sal aries>. Pocket Oxford Dictionary, Oxford University Press, Walton Street Oxford OX26DP, March 1994. President Kibaki addresses Kenyans on Constitution promulgation anniversary, Mwakilishi, Kenya, 26 August 2011, retrieved 26 August 2011, <http://www.mwakilishi.com/content/article/2011/26/president-kibaki-addresseskenyans-on-constitution-promulgation-annivers>. The Ministry of Planning and National Development, UNDP Kenya & The Government of Finland, Millennium Development Goals in Kenya; Needs & Coast, UNESCO, 2005, p. 4, retrieved 12 August 2011, <http://planipolis.iiep.unesco.org/upload/Kenya/Kenya%20MDG%20Needs%20Asse ssment.pdf>. The Proposed Constitution of Kenya, The Attorney General, Nairobi, 2010, retrieved 19 August 2011, <http://www.attoney-

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Implementation of the Constitution; an Independent Status Report general.go.ke/index.php?option=com_docman&task=doc_download&gid=33&Itemid =391>. Wagereka Naomi, FIDA: Rushed law process dangerous, Capital FM, 20 August 2011, retrieved 23 August 2011, <http://www.capitalfm.co.ke/news/?ews_pid=28341>. Waki Angela & Gituro Wathingira, The New Constitution of Kenya: the Process of Implementation, Coulson Harney Nairobi, 2011, p. 1, retrieved 16 August 2011, <www.coulsonharney.com/LawArticles/Documents/The%20New%20Constitution%2 0-%20Implementation.pdf>. Wako S. Amos, The National Accord and Reconciliation Bill 2008, Kenya Law Reports, 2008, pp. 6-9, retrieved 22 August 2011, <http://www.kenyalawreports.or.ke/klr/fileadmin/pdfdownloads/Bills/2008/The_Nati onal_Accord_and_Reconciliation_Bill_2008.pdf>.

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Implementation of the Constitution; an Independent Status Report ABOUT THE AUTHOR The author, B. W. Namano, holds a BSc degree in Instrumentation and Control Engineering from Egerton University. He conducts research and authors reports and articles on issues relating to development, policies, governance, democracy, constitutional politics and civil society among others.

B. W. Namano. Email: bwnamano@gmail.com

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