Constitution in Kenya Essay Example for Free

organization in Kenya Essay1.1 origi kingdomThe zymosis for a unseasoned character in Kenya was informed by various past historic injustices ranging from economic, social, cultural and elegant to semipolitical matters. At the political level, issues on centralized and ironfisted governance kept soda water year in year out. The passage of the governance of Kenya, 2010 on 4 August, 2010 and its subsequent promulgation on the 27 August, 2010 arguably ushered in a new dawn in Kenya not lone or so(prenominal) in governance but also in the various sectors of the Kenyan orderliness.1 Its adoption has been taunted as the greatest milepost Kenyans wealthy somebody ever achieved other(a) than attaining independence in 1963. 2 The joy at the enactment of the governing body of Kenya 2010 could not be captured in any other better words than as Justices J. W. MWERA, M. War like and P. M. MWILU did in confederacy of Women practice of lawyers Kenya (FIDA-K) 5 others v attorney familiar another3 where they stated Only last year and in our earlyish maritime history we constructed a great ship and c bothed it our new report. In its structure we put in the finest timbers that could be found.We constructed it according to the best plans, necessitate, comfort and architectural brains available. We tried to address various and vast needs of our society as much as possible. We sent it to the people who ratified it. It was crowned with tremendous supremacy in a referendum exonerateed on 4th August 2010. We achieved a wonderful and defining victory against the REDS. We vanquished them. The aspirations and entrust of solely Kenyans was borne on 27th August 2010. We achieved a rebirth of our Nation. We live come to revere it and point have affection for it. We accomplished a long tedious, torturous and painful chapter in our history. We all told had extraordinary(p) dreams. It is a document miserlyt to fight all kinds of injustices. It is the most sophis ticated weapon in our maritime history. As Kenyans we got and achieved a clean bill of constitutional health. heretofore, the honeymoon is over, it is time to do battle with it.4However, at the open of the 2011/2012 one-year Report of the Commission for the Implementation of the establishment (CIC),5 Mr. Charles Nyachae6 remarked When Kenyans voted for the makeup of Kenya 2010, they voted for change and transformation inthe room delegated sovereign power is deterrent exampled by government. To achieve good governance, there is need for observe for the rule of virtue and a leadershiphip that meets the requirements chapter six of the establishment on leadership and truth. There is no person or institution that is above the institution or is excluded from its requirements. All persons and all state organs argon terminus ad quem by the formation and its linguistic rules.It is therefore disturbing and a recipe for crisis to have individuals and state organs that have fai l ead to respect the piece of music or the law in any form including judgments of the salute. The name for such conduct is impunity and impunity is the antithesis for good governance. Thus, this account delves into how the depicted object prevarication remains the most blatant manifestation of impunity and impediment to the implementation of the Constitution of Kenya, 2010. In this paper, the term parliament and National Assembly lead be uptaked interchangeably to refer to one and the same institution.1.2 BRIEF HISTORY OF piece of music MAKING IN KENYA iodine of the institutions that were created when individuals entered into civilian society is the Constitution. Mr. John Mutakha Kangu7 succinctly explains that having invented a life of civic and or political society, the next realization was the need for whatsoever form of law and government to regulate the manner in which human beings dealt with separately other.8 He further points out that there was need for rules of engagement which could be used to regulate how members of the society relate, not only with each other but also with the common power.9 The Constitution therefore moderates the hurt and conditions between the people and the government and the relationship between the people themselves. At independence, Kenya adopted the Independence Constitution infra the leadership of Mzee Jomo Kenyatta. The most striking feature of this Constitution was the centralized system of government vested in the Presidency.The decision maker dictated what was to happen in the other mail of Government, be it the Legislature or the Judiciary.10 With respect to the Judiciary, the electric chair had the discretion of appointing the Chief Justice and the other members of the superior courtyards of record.11 It is for this reason that some scholars have reason outd that the denomination of judicial officers was shrouded in mystery.12 The legislature acted as a rubber stamp for any executive action.13 The agitation for a new Constitution began inearnest in the 1980s with demands for expanded democratic dummy at a time when Kenya was a single society state by law. Most of the civil society and human rights groups demanded the repeal of plane section 2A of the Constitution that do Kenya a de jure one party state.14 fountain professorship Mois government bowed to this demand and revise s.2A of the repealed Kenyan Constitution thus ushering in a new era of multipartyism in Kenya. In the 1992 elections, the opposition was divided thus ensuring Mois computer storage of power by a simple majority.The Ufungamano Group of 1997 is indicative of a serious demand by civil society groups, human rights activists, opposition leaders and members of the Non-Governmental Organizations (NGOs) for a new Constitution in Kenya.15 The rightfulness Society of Kenya (LSK), the umbrella regulatory body advocates in Kenya, provided Kenya with visual aid and fashioning of the Model Constitution in November 1994 and the governments opposition to the re-writing of the Constitution became weaker. However, it did not make a concession.16 The government had no trust in the ability of Kenyan lawyers to draft a Constitution for Kenya. It was on 1 January 1995 that president Moi announced that he was inviting Western thorough lawyers to assist the country in re-writing the Constitution.The government merely did nobody despite the fact that the pressure for the re judgement to begin was mounting.17 The Western countries were also concerned with the blatant slack in the government towards Constitutional re control yet a lot of agitation for review had been made. In May 1996 when the whence United States Ambassador to Kenya, Aurelie Brazeal visited the then Attorney General, the Honorable Amos Wako, he ably win over the government into conceding that the country needed Constitutional review as a matter of urgency. However despite this concession, no criterion was taken toward s the review surgical procedure.18 It was in 2000 when the government formed the Constitution of Kenya retrospect Commission (CKRC) to spearhead the Constitution review process.19 The commission began its bat in earnest going all over the country requireing and collating views of Kenyans on the Constitution review process. A National Conference was held at the Bomas of Kenya where a draft Constitution that was a product of intense deliberations, compromises and consensus was agreed upon.However, some persons in the Hon. Kibakis government retreated to Kilifi where with help of the then Attorney General, the Honorable Amos Wako, radically altered and mutilated the Bomas draft. Inthe referendum carried out in November 2005, the government suffered a humiliating defeat as the proposed Constitution was overwhelmingly rejected. The rival of this development was a cabinet reshuffle that threw out all cabinet ministers who opposed the Constitution. These members formed a formidable op position group preparing Kenya for the most hotly contested election in the Kenyan history. When elections were held in December 2007, very few Kenyans were anticipating the aftermath of that election. Violence engulfed the country immediately the result for the presidential election was announced on the 30 December 2007 leading to the death of more than 1000 persons and the displacement of thousands of others. Dr. Koffi Annan chaired negotiations aimed at reconciling the two warring parties, the Party of National Unity (PNU) led by President Mwai Kibaki and the orange Democratic Movement (ODM) under the leadership of Hon. Raila Odinga. The negotiations yielded the grand spinal fusion government.The government committed itself to the implementation of all the price and conditions under which the coalition government was founded as dictated by the National Accord and reconciliation solve, 2008.20The most reformative of this was the Agenda Four that demanded of the government to carry out comprehensive reforms on land, the Constitution and other sectors of the Kenyan society. The adoption of a new Constitution was therefore top of the agenda of the coalition government. The Constitution of Kenya Amendment interpret, 2008 was enacted creating a body called the Committee of Experts (CoE) to lead in the writing of a new Constitution. community of Kenyans was also comprehensively provided for in the Act. On the 4 August 2010, the proposed Constitution of Kenya was subjected to a referendum receiving an overwhelming mo of 67 % of the voters.The promulgation of the Constitution on the 27th August 2010 indeed ushered in a new dawn in Kenya.21 One of the institutions that were app atomic number 18ntly aimed at being regulated is the National Assembly. This was informed by the fact that the institution had been used and by extension supplyed itself to be used by the powerful administrator arm to rubberstamp actions that were aimed at any mutilating the Constit ution or gagging the rights of Kenyans.22 Even as late as 2003, the National Assembly wanted to impose a Constitution on Kenyans yet the foundation of a civilized society is that sovereignty belong to the people.23 Were it not for the intervention of the full(prenominal) flirt, the National Assembly could have arrogated to itself thepower to adopt a new Constitution way back in 2004.24PART IIIMPLEMENTING THE CONSTITUTION OF KENYA, 2010Many Kenyans sighed with relief when the Constitution was promulgated on 27 August 2010 but a few wise people cautioned that adopting the Constitution is a move in the right direction, implementing it is the big deal.25 It is noteworthy that one of the major players in the Constitution implementation is the National Assembly.26 The big seekingion that this paper seeks to answer is whether the National Assembly has discharged that noble duty as expected. It go forth be illustrious that the National Assembly has confirmed the propositions of Karl Ma rx who in his theory opined that the rich uses the law to protect themselves.27 shipway IN WHICH PARLIAMENT HAS BEEN POSITIVE IN IMPLEMNTING THE CONSTITUTION It would be legally impossible if one was to argue that the National Assembly has done nothing in the implementation of the Constitution for to suggest so would mean the Constitution remains completely un use. This part of the paper highlights the achievements of the said institution which have viewd that the letter and the pump of the Constitution are effectively and faithfully implemented.2.1 EXERCISING OVERSIGHT OVER THE EXECUTIVEOne of the carmine duties of the National Assembly is to exercise checks and balances over the other arms of the government in general and the Executive in particular.28 This follows from the foundation of a civilized society in which it was agreed that a government had to be formed so as to ensure protection of the welfare of all members of the society.29 It was further noted that if all the state power was left to be exercised by one person, then the said person was credibly to be a tyrant.30 It for this reason that Baron De monthesque vehemently argued for a three-armed government so that each of the arms would be a watchdog over the rest.31 It is for this reason that the Constitution of Kenya provides that the National Assembly manifests the diversity of the nation and represents the will of the people.32 The will of the people is said to have been negated when one arm of government makes decisions that are equal to the facial expression and letter of the Constitution.33If there is one act by the Executive that generated more heat in the implementation of the Constitution is the Presidents unilateral appointment of the Chief Justice (CJ), the Director of globe Prosecutions (DPP), the Controller of Budget (CoB) and the Attorney General.34 These appointments met strong resistance from the ODM side of the coalition which felt that the Prime diplomatic minister was not consulted.The press statement released by Hon. James Orengo tells it all.35 Hon. Orengo maintained that the Prime Minister had not been consulted and this amounted to a breach of both the National Accord and the Constitution.36 The bone of contention went from the legality of the appointments to a debate on the meaning of the word consultation. Those in support of the President maintained that consultations need not result in concurrence, whereas those in support of Hon. Orengo were of the converse position.37The National Assembly through its chair, the Speaker of the National Assembly, Hon. Kenneth Otiato Marende, restored sanity by declaring that the appointments were unconstitutional as the President had not consulted the Prime Minister as required by the Constitution and the Accord.38 This marked a bold move from the legislature in reminding the executive that the law had to be followed.2.2 VETTING natural OFFICE HOLDERSIt has been pointed out above that the people of Kenya exercise their sovereignty through representation by the legislature. Vetting involves interviews that are meant to ascertain if the proposed candi visualizes satisfy both the professional and integrity thresholds even up by the Constitution and the enabling laws.39 globe screening of such high ranking state officers40 such as the Chief Justice has seen improve confidence in the Judiciary. The vetting process has also reduced ethnic and regional imbalance in damage of appointments to frequent service. It has at the same time ensured gender e spirit in common appointments.41fantans Constitutional Implementation Oversight Committee (CIOC) unanimously approved the nominations of Dr. Willy Mutunga and Ms.Nancy Barasa as the CJ and DCJ respectively.42 However, the committee faltered when it came to the appointment of Mr. Keriako Tobiko as the DPP.The Parliamentary Committee on Justice and Legal Affairs rejected Mumo Matemu, Prof. Jane Kerubo Onsongo and Irene Cheptoo keino as the Ch airperson of the ethical motive and Antic-Corruption Commission and deputies respectively and asked Parliament to do the same. The chairman of the Parliaments Public Accounts Committee, Dr. Bonny Khalwale tabled documents claiming the Mr.Mumo Matemu had failed to collect sh.2.4 add-inion in tax revenue arrears from a company objet dart at the Kenya Revenue Authority.43This transparent process by the National Assembly marked a departure from the Opaque and non-accountable process of appointments in the past.2.3 ENACTING LEGISLATIONSOne of the major duties of the National Assembly is legislation. Implementing the Constitution demands the enactment of a number of legislations.44 One must extend it to the National Assembly for having risen to the occasion and enacted laws at least at the right timelines. Questions have however been raised on the quality of some of those legislations.45 The point to note is the primary level is the enactment and the quality or otherwise of law is a secondary one depending on the lens of the critique.A bring out achievement of Parliament is the enactment of legislations required under the sixth inventory to the Constitution within the indispensable timelines. These are legislations touching on matters of Election, security and devolution implemented according to their requisite timelines. However, the National Assembly extended the period prescribed for the enactment of the bills relating to Public Finance Management, Land and County Government. The extension of time was to allow time for more comprehensive public intricacy and to address what the respective ministries considered to be contentious issues.By 26 August, 2011 which was exactly a year after the promulgation of the Constitution of Kenya 2010, under the fifth schedule to the Constitution and the agreed schedule of bills, the National Assembly had enacted the following pieces of legislation the commanding woo Act, 2011,46 the sovereign electoral and Boundaries Commission Act, 2011,47 the Industrial homage Act, 2011,48 the Urban Areas and Cities Act,49 the Environment and Land Court Act, 2011,50 the National sexual practice and Equality Commission Act, 2011,51 the Ethics and Anti-Corruption Commission Act, 2011,52 the Elections Act, 2011,53 the Kenya Citizenship and Immigrations Act,2011,54 the Commission on Revenue Allocation Act, 2011,55 the Power of leniency Act, 2011,56 the Vetting of Judges and Magistrate Act, 2011,57 the Judicial proceeds Act, 2011,58 the self-reliant Offices(Appointment) Act, 2011,59 the Kenya National Commission on Human Rights Act, 2011,60 the Commission on Administrative Justice Act, 2011,61 the policy-making Parties Act, 201162 and the Salaries and Remuneration Commission Act, 2011.63PART IIIPARLIAMENT AS A MANIFESTATION OF IMPUNITY AND IMPEDIMENT TO THE IMPLEMENTATION OF THE CONSTITUTIONWhile Parliament has been instrumental in the production of some key reports and holding the Executive to account, it ha s however been averse to the processes and institutions which seem to be a threat to their selfish political interests. Having given the achievements of Parliament, hereunder are its chief failures. 3.1 MUTILATION OF THE CONSTITUTIONOne of the sad stories of Constitution making in Kenya has been the blatant mutilation of the Constitution by the very same authority that is supposed to protect and back up it. Some have argued that the independence Constitution was one of the most progressive Constitutions of the time64 yet Parliament in its intention to amass power and please the Executive amended it severally.65 One of such amendments is the 1982 amendment to the Constitution that made Kenya a de jure one party state.66 The net effect of this amendment was decreased democratic space which subsequently led to curtailment of other rights such as freedom of expression, freedom ofspeech, and freedom of association. It is noteworthy that Parliament allowed itself to be used by the execut ive to propagate the authoritarian agenda.It was a great expectation that the enactment of the Constitution of Kenya on 27 August 2010 would be an incentive to Parliament to live by the spirit of the law. It has however dawned on Kenyans that enacting the Constitution was just a single step in reforming Kenya. The bigger and challenging step is a comprehensive implementation of the Constitution. If the number of sub-standard legislations that have been passed by Parliament is to be used as a test on whether Parliament has truly lived up to its duty to protect and defend the Constitution, then Kenyans have been taken for a ride. For instance, when Kenyans found it fit to include a chapter on integrity in the Constitution, they expected that the Legislative arm of Government would actualize its implementation by passing laws on integrity that would satisfy the requirements of chapter six of the Constitution.However, as Karl Marx in his Marxist theory puts it the ruling class has conti nued to use the law to propagate its dominance over the lower class Kenyan Members of Parliament (mononuclear phagocyte system) gave a possible application of the Marxist theory67 by watering down the spirit and effect of the Integrity charge.68 The spirit of the Bill was to ensure that only persons of unquestionable character and integrity are appointed or elected to public offices.69 It is a reasonable pre meansption that only persons of high integrity will respect, protect and implement the Constitution yet the current Kenyan system of macrophages intend to preserve the status quo70 by ensuring that the law serves them.71The other legislation that was meant restore sanity by bring discipline in the democratic space in Kenya is the Elections Act. In that regard, one of the historical injustices meted against Kenyans by politicians was the culture of party hopping.72 Party hopping not only encourages undiscipline in political parties but also constrains development of political parties in Kenya. As one of the roles of political parties is to nurture democracy, allowing politicians to join political parties and leave at will is a sure ticket to the driveway leading to death of democracy in Kenya.S.34(8) of the Elections Act, 2011, required that a member should be in the party list on which s/he intends to contest the elections three months onward that list is submitted to the Registrar of Political Parties. In other words, one was to be in the party list by 3 October 2012. However, the amendments by the MPs to s. 34(8) of the Elections Act, 2011 now require parties to submit their lists not later than 4 January 2013. In essence, the amendment means that MPs are free to change political parties until 3 January 2013 which is two months to the elections.The chief mover and champion of the amendment to the Elections Act, Hon. Isaac Ruto, submitted frail arguments in support of the amendments. He is one record as having said restricting persons from changing their political parties was tantamount to their rights to freedom of expression and association and if the Elections Act was not amended it would affect MPs and Councilors.73 He stated Considering the large number of legislators and councilors that may be affected, this provision left unamended is likely to puree if not paralyse these key institutions of governance.74Reasonable as these arguments may sound, they reflect a failure to hear the import of restricting party hopping. It goes against the principle that one cannot have their cake and eat it at the same time.3.2 ATTEMPTING TO CHANGE THE ELECTION DATE bind 101 (1) of the Constitution of Kenya 2010 expressly provides that a general election of members of Parliament shall be held on the second Tuesday in August in both fifth year. Kenyans unanimously voted for the Constitution of Kenya 2010 on the understanding that the early general elections under the new constitutional dispensation would be held on 7 August 2012.However , three groups emerged with different dates of the first general election under the new Constitution. The first group was of the view that the date of the election is in the year 2013 and specifically between fifteenth January 2013 and 15th March 2013.The second group was of the view that thedate of the first elections is on the second Tuesday of August 2012 while the third group favoured an election date between October 2012 and December 2012. Meanwhile, Parliament was in the process of enacting the Constitution of Kenya (Amendment) Bill, 2011which inter alia sought to amend words 101(1), 136(2), 177(1)(a) and 180(1) so as to alter the date of the next general elections from the second Tuesday of August to third Monday of December. Thus, the Independent Electoral and Boundaries Commission (IEBC) filed in the autocratic Court of Kenya Re Independent Electoral and Boundaries Commission75 seeking an advisory opinion on the date of the general elections under the new Constitution.The Supreme Court considered the matter before it and in its ruling delivered on 15th November 2011 stated, in part, as follows We will be guided by certain principles which have intelligibly emerged from the submissions the mellowed Court is, by Article 165(3) (d) of the Constitution, entrusted with the original jurisdiction to hear and determine any question entailing the interpretation of the Constitution it is the obligation of the Supreme Court, as the ultimate interpreter of the Constitution to protect and reinforce the conferment of first-instance jurisdiction upon the High Court especially when the matter in respect of which an advisory opinion is being sought, is pending before the High Court subject to those principles, the Supreme Court will exercise its discretion appropriately, on a case-to-case basis, in accepting requests for an Advisory Opinion.We hereby order and direct as follows (1) We decline to declare that the Supreme Court has the jurisdiction to render an advi sory opinion in the instant matter, but decline in exercise of our discretion, to give such an opinion with regard to the date of the next general election. (2) We reserve the reasons to be set out in a ruling upon notice. (3) Responding to the High Courts request of 13th October 2011 for directions, High Court Petition Nos. 123 of 2011, 65 of 2011 and 185 of 2011 shall be placed before the Constitutional and Human Rights Division of that Court, for auditory sense on priority and on a day-to-day basis. (4) The aforesaid petitions shall be listed for mention and directions before the proposition of the High Courts Constitutional and Human Rights Division on 18th November, 2011.At the same time, three Petitions were filed at the Constitutional and HumanRights Division of the High Court with the intention of having the High Court determine the date of the first general election under the new Constitution. The three Petitions were consolidated by the order of Honourable Justice Isaac Lenaola, the Head of the Constitutional and Human Rights Division of the High Court on 18 November 2011 into John Harun Mwau v the Honourable Attorney General and 2 others.76The three Judge bench77 after considering the submissions of counsels for the petitioners, respondents and interested parties, held inter alia The date of the first elections under the Constitution is determined by reference to section 9 and 10 of the Sixth Schedule as follows (a) In the year 2012, within sixty days from the date on which the National Coalition is dissolved by written agreement between the President and Prime Minister in agreement with section 6(b) of the National Accord and Reconciliation Act, 2008 or (b) Upon the loss of the term of the 10th Parliament on the 5th Anniversary of the day it first sat which is designated by Legal Notice No. 1 of 2008 as 15th January 2008.The term therefore expires on fourteenth January 2013. The elections shall be held within sixty days of 15th January 2013. ( c) The body entitled under the Constitution to lodge the date of the first elections within sixty of the expiry of the term of the National Assembly or upon wantonness of the National Coalition by written agreement between the President and the Prime Minister in accordance with section 6(b) of the National Accord and Reconciliation Act, 2008 is the Independent Electoral and Boundaries Commission.In view of the courts finding on the election date, the court did not find it necessary to express its view on the Constitution of Kenya Amendment Bill, 2011 as it also dealt with other issues that were not germane to these proceedings before the court at that particular moment. As legislature was seized of the matter, it would take guidance from the courts decision or act within its constitutional mandate as it may lawfully wish to do. The Justice and Constitutional Affairs Minister accordingly withdrew the Constitutional amendments that were hoped to be achieved by the Constitution of K enya Amendment Bill, 2011 given that IEBC had settled for 4 March 2013 as the date of the first general elections under the newConstitution.3.3REFUSING TO PAY TAXESOne of the great features and characteristics of the duties and obligations of Parliament before the coming into effect of the Constitution was the Constitutional right of MPs not to patch up taxes.78 The Constitution has now done away with that scenario by expressly providing under Article 210 that all(prenominal) person in Kenya must gift up tax.79 The Constitution further expressly prohibits any legislation that waives the duty of every person in Kenya to pay tax.80Some of the proponents of the non- remuneration of tax argue that by demanding MPs to pay tax, it would be a violation of their rights under the Constitution. They are of the opinion that the National Assembly Remuneration Act81 had to be amended to obligate them pay the taxes. The Hon. Kenneth Marende, the chief proponent of this argument argued that t he law was to be followed if MPs were to pay tax. The opponents of the Mps-crusade of non-payment of tax argued that the Constitution is as clear as a crystal with respect to MPs obligation to pay tax.82 The Government appeared divided on this as the then Justice and Constitutional Affairs Minister, the Hon. Mutula Kilonzo agreed with those who heckled the view that Mps had no obligation to pay taxes until after the first General election is held under the Constitution. otherwise lawyers such as the Supreme Court Lady Justcie Njoki Ndungu were of the view that Mps were not exempt from remunerative(a) taxes.The blame must squarely lie on Parliament because they refused to provide leadership on this critical issue. It is even disturbing because the Speaker joined the bandwagon of those opposed to MPs payment of tax. The refusal to provide leadership and by extension the failure to amend the relevant legislations to give effect to the provisions of the Constitution on payment of tax es amounts to impunity exercised against the Constitution and the people of Kenya.A sober reading and interpretation of the Constitution obligates everyperson, MPs included, to pay taxes. The Constitution is the supreme law of the land and all other laws must be consistent with it.83 Similarly, the transitional clauses under Clause 7 of the Sixth schedule which reads All laws in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution. The effective date refers to the date on which the Constitution was promulgated, that is the 27th August, 2010. The National Assembly Benefits and Remuneration Act is subject to the Constitution hence the MPs have a duty to pay taxes.3.4 ILLEGAL INCREMENT OF MPs SALARIES AND BENEFITSParliament has for some time now been the only institution that can decide to hike their pay to blotto amounts withou t consulting anybody. With the coming into effect of the Constitution, the power to decide the salaries and other benefits of all state officers has been given to the Salaries and Remuneration Commission.84 Members of Parliament are classified as sate officers under the Constitution hence their salaries must be decided upon by the Salaries and Remuneration Commission.The Mps decided early this year to award themselves with hefty send-off packages amounting to Kenya shillings cardinal Million per MP with the pretext that they had the right to such monies as a way of thanking themselves for the good work they have done in the past five years.85 It was with the timely intervention of the President that the taxpayers were spared the burden of paying such lofty amounts of benefits to the Mps.3.5 SUSPICIOUS REJECTION OF PARLIAMENTARY REPORTSThe Kenyan Mps have perfected the art of either amending reports or rejection such reports provided those adversely mentioned in the reports either directly or through proxy give out handouts to the MPs. When Parliament debated on the Parliamentary Report on the Sale of Kenyan Embassy in capital of Japan Japan, there were glaring accusations that some MPs had been bribed to kill the report.86The MPs are said to have taken bribes to amend the Report of the depreciation of the Kenya shilling in which report the Governor of the Central Bank had been adversely mentioned.87 The demeanor of some of the MPs told it all as most of those who are normally perceived as talking on behalf the common mwananchi joined the bandwagon of those who supported the amendments to the Report. If the Mps can stoop low as to take bribes of Kenya shillings 5,000, it must be the worst betrayal of the Constitution.3.6 DISREGARD OF THE MANDATE OF THE COMMISSION FOR THE IMPLEMENTATION OF THE CONSTITUTION (CIC) AND THE CONSTITUTIONAL IMPLEMENTATION PROCESSThe Commission for the Implementation of the Constitution (CIC)88 is a Constitutional mechanism formal t o monitor, facilitate, co-ordinate and oversee the implementation of The Constitution of Kenya 2010. As provided for in the Commission for the Implementation of the Constitution (CIC) Act, 2010,89 the mandate and functions of CIC is to monitor, facilitate and oversee the development of legislation and administrative procedures required to implement the Constitution co-ordinate with the Attorney-General and the Kenya Law Reform Commission (KLRC) in preparing for tabling in Parliament, the legislation required to implement the Constitution report every three months to the Constitutional Implementation Oversight Committee on progress in the implementation of the Constitution and any impediments to its implementation and work with each Constitutional Commission and Independent Offices to ensure that the letter and spirit of the Constitution is respected and exercise such other functions as are provided for by the Constitution or any other written law.Regrettably, a number of bills were approved by the Cabinet and subsequently passed by Parliament without being reviewed by CIC. Also, some of these bills were not subjected to public participation as required by the Constitution. A number of Private Members Bills were also published and subsequently debated in Parliament without review by CIC yet they had a direct bearing on the implementation of the Constitution.3.7 INCLUSION OF UNCONSTITUTIONAL PROVISIONS IN PIECES OF LEGISLATION AND DISREGARD OF THEDUE PROCESSThere were instances in which Parliament introduced unconstitutional provisions in the bills. A case in point is the introduction of unconstitutional provisions in the County Government Bill 2012, which, subject to the operational command structure set out in the National Police Service Act90 or any other National Security legislation, purported to give the Governor the power to chair the County equivalent of the National Security Council as provided in Article 239 (5) of the Constitution.91 This provision g o againstd Chapter Fourteen of the Constitution, which places the National Security Council under the National Government. Further, National Security is not among the functions of County Governments as set out in Part twain of the Fourth Schedule to the Constitution, hence there is no County equivalent.PART IV4.1 CONCLUSIONFrom the introduction, parts II and III of this contribution, it can be deduced that the implementation of the Constitution is not just about the enactment of laws. The principle behind legislative oversight of Executive activity is to ensure that public policy is administered in accordance with the legislative intent, and by inference, the citizens aspirations. In this context, the legislative function does not cease with the passage of a Bill.92 It is, therefore, only by monitoring the implementation process that parliamentarians uncover any defects and act to correct misinterpretation or maladministration.93 Implementation involves the promotion of Constitutio nalism94 and securing the observance by all state organs of democratic apprizes and principles. The childbed of implementing the Constitution requires the collaboration and co-operation of state and non-state actors.95Mr. Charles Nyachae at the launch of the 2011/2012 Annual Report of the CIC observed that the greatest riskiness to the Constitution is posed by Constitutional organs and state officers who ironically carry the greatest tariff of implementing it.96 He further observes that it is a Constitutional organ and its individual state officers that seek to passlegislations that clearly violate the Constitution that they swore to protect and some of the laws that they have passed are enemic to the Constitution.However, Kenyans should be cognizant the fact that article 1 of the Constitution of Kenya vests all sovereign power on the people of Kenya and the sovereign power is to be exercised only in accordance with the Constitution. Kenyans may exercise their sovereign power ei ther directly or through their democratically elected representatives.97 No state organ especially the National Assembly should immerse that sovereign power belongs to the people of Kenya and the Constitution is the supreme law of the land.Be that as it may, the implementation of the Constitution brought about increased transparency and accountability on the part of the Legislature as well as the Executive. Increased participation by Kenyans in the development of laws and policies marked a key milestone in the implementation process.98 Public participation in the formulation of public policies is a major gain and represents a paradigm shift from the previous dispensation where most public policies were formulated in a boardroom frame-up devoid of the peoples input.99In conclusion, as observed by Mr. Charles Nyachae at the launch of the 2011/2012 Annual Report of CIC, even if we had the most perfect laws in the world, in the absence of a culture of constitutionalism, such laws would be rendered useless and become tools of oppression. All laws, regulations and guidelines on ethics and integrity are of little value if individual Kenyans as well as their leaders fail to ascribe in practical terms to ethical values and principles proclaimed in those instruments. He also observed that in the end, it is a sum total of our individual behavior and character that will reflect the nations ethics and integrity.4.2 RECOMMENDATIONSthough Parliament remains the most blatant manifestation of impunity and impediment to the implementation of the Constitution, there are some steps that can be taken so as to ensure that the Constitution is faithfully and effectively implemented. These steps include4.2.1 CIVIC EDUCATIONIt is worth noting that a greater percentage of the Kenyan race is ignorant of the legislative process as well as the Constitutional implementation process. The same explains wherefore some members of Parliament have on several occasions passed pieces of legislat ions which they later on admitted that they were not awake of what they were voting for.Civic education among the Kenyan citizenry as well as members of the Parliament will go a long way in creating and increasing public awareness on the opportunities, procedures and the rights relating to participation in legislative policy and other Constitution implementation processes.4.2.2 INCREASING PUBLIC PARTICIPATION IN THE LEGISLATIVE PROCESSESPublic access and participation is envisaged in the Constitution of Kenya, 2010. Article 118 (1)(b) provides that Parliament shall facilitate public participation and involvement in the legislative and other business of Parliament and its committees. However, the clandestine manner in which Parliament has been conducting its affairs especially when it comes to increasing its salary and awarding itself hefty send-off packages is what has caused Kenyans to resort to the streets and gang outside the Parliament with a view of having Parliament change i ts view.Increased public participation in the affairs of Parliament will ensure transparency and accountability. It will also help in genteelness confidence and acceptability of the legislations passed by Parliament.4.2.3 ELECTING GOOD LEADERSThe choice of electing leaders lies in the hands of Kenyans. The leaders that Kenyans should chose in the forthcoming elections so as to represent them should be leaders with proven track records. They should be devoid of corruption and unquestionable integrity. This is because it is only leaders of impeccable characters that will ensure the Constitution is implemented to its letter and spirit.4.2.4 INCREASED VIGILANCE AMONG THE KENYAN CITIZENRYKenyan citizens should rise to the occasion and promote a culture of Constitutionalism. They should be relentless in their quest of defending the Constitution. This includes the necessary vigilance which will ensure the faithful and effective implementation of the Constitution to the letter and the spir it.Whenever the citizens feel that certain actions of members of Parliament or pieces of legislations contravene the provisions of the Constitution, they should not hesitate to move to the Court to have such actions or legislations declared unreal and void. With the reformed and revamped Judiciary, the citizens are assured of a fair and just determination by the courts.4.2.5 ENSURING ALL write BILLS ARE REVIEWED BY THE CICAt the launch of the 2011/2012 Annual Report of CIC, the Commission recommended that all draft bills are reviewed by the Commission. This is aimed at ensuring that the Acts of Parliament that are enacted conform to the provisions of the Constitution. It is at the same time aimed at ensuring unconstitutional provisions are not included in pieces of legislation as was the case in the introduction of unconstitutional provisions in the County Government Bill 2012.4.3 REFERENCES4.3.1 LEGISLATIONS1. The Constitution of Kenya 2010.2. The Repealed Kenyan Constitution.3. The Constitution of Kenya (Amendment) Act No.7 of 1982.4. The Constitution of Kenya Review Act No.5 of 2000.5. The Commission for the Implementation of the Constitution Act No. 9 of 2010. 6. The National Accord and Reconciliation Act, 20087. The National Assembly Remuneration Act, CAP 5, Laws of Kenya. 8. The Constitution of Kenya Amendment Act, 2008.9. The Political Parties Act No.11 of 2011.10. The Elections Act No.24 of 2011.11. The National Assembly Remuneration and Benefits Act, CAP 5, Laws of Kenya. 12. The Constitution of Kenya (Amendment) Bill, 2011.4.3.2 CASES1. Federation of Women Lawyers Kenya (FIDA-K) 5 others v Attorney General another 2011 eKLR. 2. John Harun Mwau v the Honourable Attorney General and 2 others (2012) eKLR. 3. Re Independent Electoral and Boundaries Commission, Supreme Court Constitutional Application No. 2 of 2011. 4. Rev. Dr. Timothy Njoya 6 Others v Attorney General 4 Others (2004)1 KLR 261. 4.3.3 BOOKS1. Baron de Montesquieu, (1748). The Spirit of the Laws.2. Gibson Kamau Kuria, Building Constitutionalism Defining the Jurists Province and tasks How to Mobilize a Constituency of Citizens, pp 47 3. Paralegal support Network, The Paralegals Handbook.4. The Kenya Human Rights Commission in Lest we Forget Faces of impunity in Kenya (2011) 5. Lloyd of Hamsted Freeman, MDA Lloyds intro to Jurisprudence (8th ed, 1957) 1129-1199. 6. PLO-Lumumba, Some Thoughts on Constitutional Principles in the Review Process in T.O. Ojienda (ed), Constitution fashioning and Democracy in Kenya, (2003). 7. Prof. Hamilton Okoth-Ogendo, H.W.O. (1996) Constitutions without Constitutionalism Reflections on an African Paradox, in Zoethout, C.M. et al (eds), Constitutionalism in Africa. A quest for autochthonous principles, Gouda Quint Deventer , pp 3-25.4.3.4 JOURNALS1. Korwa G. Adar and Isaac M Munyae, Human Rights Abuse In Kenya Under Daniel Arap Moi, 1978-2001, African Studies Quarterly. The online Journal for African Studies. 2. Mutakha Kangu Soc ial Contractarian Conceptualization of the Theory and Institution of Law and Governance, (2007) 2Moi University Law Journal.4.3.5 INTERNET SOURCES1. Alphonce Shiundu and Peter Leftie Why Kenyan MPs will not pay tax on allowances yet September 24 2010 at 2200 Daily Nation Online Edition. lendable at http//www.nation.co.ke/ intelligence agency/politics/Why-Kenyan-MPs-will-not-pay-tax-on-allowances-yet-/-/1064/1017710/-/item/1/-/14gkivv/-/index.html. . 2. Alphonce Shiundu , Shakir Shabbir MPs were bribed to save CBK boss, Saturday Nation. Saturday, March 10 2012 at 2230. Daily Nation Online Edition. Available at http//www.nation.co.ke/News/politics/Shabbir-MPs-were-bribed-to-save-CBK-boss-/-/1064/1363750/-/item/1/-/x639yvz/-/index.html . 3. John Ngirachu, Vetting Tobiko scrapes through Thursday, June 9 2011 at 1502 Online Nation Edition. Available at http//www.nation.co.ke/News/Panel-clears-MutungaBarasa-and-Tobiko/-/1056/1177764/-/ioc088/-/index.html. 4. Justice Isaac Lenaola Public P articipation in Judicial Processes .Available ata