The Constitution says that Parliament must pass necessary laws to implement the Constitution, and for this purpose, “the Attorney-General,in consultation with the Commission for the Implementation of the Constitution, shall prepare the relevant Bills for tabling before Parliament” (Article 261).
But the Committee of Experts seems to have lost sight of the need to be precise in its drafting and section 5 of the Constitution’s Sixth Schedule (transitional provisions) expresses the functions differently and has given the CIC various functions about law making for implementing the constitution:
The AG seems to think that his relationship with the CIC is limited “to consulting with CIC who have to ‘quickly’ give suggestions before the same Bills are forwarded to Parliament”. The CIC may be temporary, as the AG says, but it is not a "non independent unconstitutional office” as he is reported as saying.
The Constitution sets it up, and it is governed by the same constitutional provisions as other commissions, including that they “are subject only to this Constitution and the law; and are independent and not subject to direction or control by any person or authority.” These provisions also apply to “independent office holders” – but these do not include the AG (only the Auditor General and the Controller of Budget).
The Attorney General is not described as “independent” at all. He is basically the government’s lawyer and has to carry out the functions given by the Constitution, by law and by the President (subject to what we would argue is an overriding obligation to “promote, protect and uphold the rule of law and defend the public interest”). He no longer has security of tenure – and in consequence as an individual may well cease to hold office with the change of government at the next election, unlike the CIC “whose mandate might as well end within two years” according to the present AG. The Constitution says that the CIC will wind up after 5 years or “at the full implementation of this Constitution as determined by Parliament, whichever is sooner”.
What does “consultation” require – and what does “in consultation with” mean? Courts, law and constitutions in other countries have examined these phrases, and emphasise that “Consultation must allow sufficient time, and a genuine effort must be made. It is a reality not a charade” (in the words of a New Zealand court). “In consultation with” requires more.
The South African Interim Constitution of 1993 said, “Where in this Constitution any functionary is required to take a decision in consultation with another functionary, such decision shall require the concurrence of such other functionary”. And the Constitutional Court accepted that this was the meaning under the current Constitution of that country, even though the explanation is not repeated there. “Shall require the concurrence” – in other words the CIC must agree with the AG before he can proceed.
Kenyans would be better served if the AG and chair of the CIC would get together and quietly sort out their relationship within the terms of the Constitution, rather than engaging in megaphone quarrels. Despite the confused language of the Constitution, it is clear they are supposed to work closely together (“in consultation” and “coordinating with”). Both have the obligation and the responsibility to ensure that the constitution is implemented in accordance with its principle and procedures.
The CKRC (of which Mr. Githu Muigai was a member) recommended an independent implementation commission because it anticipated resistance from the executive and the legislature to implementing and enforcing the constitution (just as it has turned out to be)—and wanted it to have adequate powers for this purpose.
The CIC has the responsibility to help parliament (through its Oversight Committee)—and the public more generally– in ensuring the proper implementation of the constitution. To give primacy to the AG in preparing bills and in shepherding them through Parliament without giving proper opportunity to the CIC is to go against the spirit of the constitution. It may also have the effect of strengthening forces in government and parliament who are opposed to the constitution. The AG represents the government, which in general has shown little fidelity to the constitution. The CIC represents the people and must safeguard their interest in securing the values of the constitution and the protection and promotion of their rights—and in promoting their participation in the law making process, which seems to be undervalued by the AG.
The authors are Directors of the Katiba Institute
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