Setting a Bad Precedent – Article 8 (14) of the Constitution Implementation Commission Bill

Blog Loise Mwakamba
BY MZALENDO CONTRIBUTOR - MOREEN MAJIWA
[caption id="attachment_1081" align="alignleft" width="300" caption="Image via mwangee on Flickr"][/caption]
Earlier this week FIDA (K), LSK and ICJ (K) protested against the inclusion of Article 8 (14) in the Commission for the Implementation of the Constitution Bill, 2010 (the CIC Bill). Rightfully so! Article 8 outlines the application and nomination procedures for would be commissioners. The wording of the Article 8 (14) of the CIC Bill reads: "
nothing under this section shall be construed as precluding the President, in consultation with Prime Minister from forwarding names other than those submitted by the Public Service Commission to the National Assembly for consideration."
For those who don’t know, the CIC bill provides for the qualifications and procedures for the appointment for the chairperson and members of the Commission for the Implementation of the Constitution (CIC). The CIC’s main task is the provision of policy and legislative guidance and oversight for the implementation of the new constitution. As such its composition has to be right, and its members independent and accountable to the citizens of Kenya.
Some highlights of the commission:
  • Functions of the commission include monitoring, facilitating and overseeing development of legislation and administrative procedures required to implement the constitution.
  • Coordinating with the Attorney General and Kenya law reform commission to prepare legislation to be tabled in parliament, as well as work with each constitutional commission to ensure that the letter and spirit of the constitution is respected.
  • Reporting regularly to the Constitutional Implementation Oversight Committee on progress in implementing the constitution, and any impediments arising in the process as well as prepare a progress report every 6 months to be submitted to the president and the parliamentary select committee.
In its simplest form the nomination process goes a little something like this - following the commencement of the Act public of vacancies on the CIC will be announced through a gazette notice. Qualified members of the public can apply individually to the Public Service Commission (PSC) or organisations can forward applicants' names to the PSC. The PSC will then gazette the names of the applicants. The PSC will also convene a committee to shortlist and interview candidates for the CIC. From these PSC will chose 3 possible candidates for the chairperson position, and 18 for commissioner positions and forward this list to the President and the Prime Minister. From this list the President and the Prime Minister will pick 1 candidate for chairperson and 8 candidates for commissioners. The list will then be forwarded to the National Assembly for consideration for the chairperson and members of the CIC.
Article 8 (14), if the Bill is passed as currently constituted, allows the premiers to by pass this process and nominate people directly to National Assembly.
If one of the goals of the new constitution is to provide checks and balances on the possible excesses of our leaders, and particularly those at the top, then Article 8 (14) of the CIC Bill contravenes this. It allows the President and Prime Minister to act outside the prescribed nomination process, to side step the Public Service Commission, and unilaterally nominate candidates for the CIC directly to the National Assembly for consideration.