Roles and Functions
The CIC has had to wear many hats to fulfill its mandates. Let us first remind ourselves from Article 249, what the general roles of a Commission are:
249. (1) The objects of the commissions and the independent offices are to— (a) protect the sovereignty of the people; (b) secure the observance by all State organs of democratic values and principles; and (c) promote constitutionalism."
Thus, the foremost responsibility of the CIC has been to assist the Attorney-General in the timely preparation of Bills required to operationalise the New Constitution. Chapter 18 - Transitional and Consequential Provisions, Article 261, excerpts:
261. (1) Parliament shall enact any legislation required by this Constitution to be enacted to govern a particular matter ........
(4) For the purposes of clause (1), 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.
The CIC has also been the adviser and independent liaison agency to a constitutional select committee of Parliament known as the Constitutional Implementation Oversight Committee, CIOC. Excerpts from Article (4) of the Sixth Schedule:
4. There shall be a select committee of Parliament to be known as the Constitutional Implementation Oversight Committee which shall be responsible for overseeing the implementation of this Constitution .......
The CIC assisted Parliament's CIOC in preparing the numerous Bills and amendments that were required to be in place to give effect to the Constitution, by providing Parliament with regular reports on the progress, strategies, and counter-strategies required for its implementation:
4. ....... and which, among other things— (a) shall receive regular reports from the Commission on the Implementation of the Constitution on the implementation of this Constitution including reports concerning— (i) the preparation of the legislation required by this Constitution and any challenges in that regard;
Within the first year after the effective date of the Constitution of Kenya 2010, the CIC was on hand in the establishment of other Commissions:
4. (ii) the process of establishing the new commissions;
CIC also played a key role in the establishment of the Counties and their bureaucracies after the first General Elections under the new constitution in March 2013:
4. (iii) the process of establishing the infrastructure necessary for the proper operation of each county including progress on locating offices and assemblies and establishment and transfers of staff; (iv) the devolution of powers and functions to the counties under the legislation contemplated in section 15 of this Schedule;
The reader may recall that devolution was and has been a long and complex process that began soon after the Constitution of Kenya was adopted in 2010. In its early stages, the process began with the passing of relevant legislation such as the Urban Areas and Cities Act 2011, and was soon followed by the establishment of key bodies such as the Transition Authority upon the early enactment of the Transition to Devolved Government Act 2012.
Other legislation supporting devolution that had to be fast-tracked with the CIC's input, included the Intergovernmental Relations Act 2012, the Transition County Allocation of Revenue Act, the County Governments Public Finance Management Transition Act, 2013, the County Government Act 2012, the lengthy Public Finance Management Act 2012, and later, the National Government Co-ordination Act 2013,.
Still other legislation had to do with the coming elections such as the IEBC Act 2012, the Political Parties Act 2011, and the Elections Act 2011, etc. For example, at that time, the need to delimit 80 new electoral constituencies and many more electoral wards was an important milestone that had to be achieved before the General Elections of 2013.
It was also up to the CIC to not only evaluate the successes or otherwise of the entire implementation process, but to share these findings with the Government and with Parliament, and to recommend remedial measures where necessary:
4. ....... and (v) any impediments to the process of implementing this Constitution; (b) coordinate with the Attorney-General, the Commission on the Implementation of the Constitution and relevant parliamentary committees to ensure the timely introduction and passage of the legislation required by this Constitution; and (c) take appropriate action on the reports including addressing any problems in the implementation of this Constitution.
For instance, the Commission did not hesitate to speak out against the President's long delay to appoint members of the National Land Commission after they had been vetted by the National Assembly.
It also declared the popular but controversial Constituency Development Fund CDF as being unconstitutional under the COK2010 despite Parliament's best efforts to make it fit in. "The constitution is in danger of being downgraded to fit our corrupt circumstance instead of being the mould into which our governance fits" - Gathara, P 2014.
Although much of the work of the CIC was by way of engaging with top levels of the arms of government as mentioned above, the Commission faithfully and fearlessly performed its role of a public watchdog pulling no stops by ensuring that its 'public advisories' were always disseminated to the wider public either through its website, or through the print and electronic media, and even social media. Often, it was at the issuance of those advisories that the public would become aware of the reluctance of the political class to implement the new constitution, or its mischief in breaching it. And not only that, it became obvious to all, that Kenya's Parliament would on occasion ignore the input of the CIC contrary to the constitution by not involving it in drafting legislation or the necessary amendments required for the operationalisation of the document.
For example in October 2014, the Commission publicly lamented over parliament's attempt to interfere with the work of other statutory bodies under the guise of carrying out its oversight functions.
Earlier in February 2014, CIC had also alerted the public to be wary of frequent actions by public officials and institutions to disregard court orders. In particular, the Commission publicly warned the Senate against interfering with court orders issued in the case of the impeachment of the Governor of Embu.
CIC had also publicly warned the Senate (and the President) back in September 2013, that it would be in breach of the Constitution with regard to separation of powers and the spirit of devolution, if the County Government Act of 2012 was amended to create County Development Boards headed and run by legislators.
Whether by design or pure coincidence, both the Commission and the Committee (CIOC) continued to perform checks and balances over each other.
If the full and timely implementation of the new constitution 2010 can be likened to the music being played by an orchestra, then the CIC is the conductor and director of the assembled musicians all of whom are reading from the same script and each is playing their part in the symphony to create a perfect harmony:
(6) The functions of the Commission shall be to— (a) monitor, facilitate and oversee the development of legislation and administrative procedures required to implement this Constitution; (b) co-ordinate with the Attorney-General and the Kenya Law Reform Commission in preparing, for tabling in Parliament, the legislation required to implement this Constitution; (c) report regularly to the Constitutional Implementation Oversight Committee on— (i) progress in the implementation of this Constitution; and (ii) any impediments to its implementation; and (d) work with each constitutional commission to ensure that the letter and spirit of this Constitution is respected.
In other words, proper rapport between the CIC, the bureaucracy of Parliament and Parliamentarians, the Attorney-General, and the Kenya Law Reform Commission, had to exist for the effective and timely implementation of the New Constitution to take place.
Indeed, our Constitution left nothing to chance or to the whims and self interests of political players or the Executive. Its drafters ensured that it is self perpetuating in so far as its operationalisation is concerned, albeit allowing for limited deferrals under reasonable cause:
261. (1) Parliament shall enact any legislation required by this Constitution to be enacted to govern a particular matter within the period specified in the Fifth Schedule, commencing on the effective date.
(2) Despite clause (1), 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 matter under clause (1), by a period not exceeding one year.
(3) The power of the National Assembly contemplated under clause (2), may be exercised— (a) only once in respect of any particular matter; and (b) only in exceptional circumstances to be certified by the Speaker of the National Assembly.
(4) For the purposes of clause (1), 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.
At this point, any member of the public, group, professional body or even a constitutional Commission could seek legal redress if legislators or the Executive failed their part and obligations on the implementation of the New Constitution:
(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.
The Court's ruling carried serious consequences and was not something to be taken lightly by legislators:
(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.
(8) If Parliament has been dissolved under clause (7), the new Parliament shall enact the required legislation within the periods mentioned in the Fifth Schedule beginning with the date of commencement of the term of the new Parliament.
(9) If the new Parliament fails to enact legislation in accordance with clause (8), the provisions of clauses (1) to (8) shall apply afresh.
In short, all the CIC needed to do was to be under the cover of the Constitution, guided by its letter and intent:
262. The transitional and consequential provisions set out in the Sixth Schedule shall take effect on the effective date.
263. This Constitution shall come into force on its promulgation by the President or on the expiry of a period of fourteen days from the date of the publication in the Gazette of the final result of the referendum ratifying this Constitution, whichever is the earlier.
To put it another way, Article 261. (6) earlier mentioned, likens the CIC to a sentinel up on a watchtower who never sleeps in order that the implementation (operationalisation) of the constitution carries on unhindered. The interested reader may refer to the CIC website on the status of pending Bills as well as those that have been successfully concluded and debated in Parliament and enacted into Acts of Parliament.
At different stages of the implementation window, the CIC also gave milestone reports on the progress so far. For example in 2013, the CIC said, "........ all the legislation that is required to be passed by 26 August 2013 (being three years since promulgation of the Constitution on 27 August 2010) has either been enacted by Parliament of has been reviewed by CIC and released to the office of the Attorney General for publication.......".
According to the Commission, only one piece of legislation was 'running late', "........ the law relating to campaign finance has not been passed in relation to the timelines set out in the Fifth Schedule to the Constitution......." (CIC Public Notice of July 23 2013, Daily Nation, paraphrased).
