There is a concise law known as the Public Holidays Act. It has five brief sections and is only two or three pages long.
Its sole purpose, as you may have guessed, is to make provision for public holidays.
Unfortunately, however, this seemingly insignificant Act was either completely forgotten or overlooked last week as Kenyans made their way to work on October 11 — the day which ought to have been observed as Moi Day.
Despite the Press statement issued by Government spokesman Alfred Mutua to the contrary, in purported reliance on the New Constitution, the fact is that Moi Day is and will remain a public holiday until it is repealed.
Section 2 of the Public Holidays Act provides that the days specified in the Schedule to the Act shall be kept as public holidays.
The days specified are as follows: New Year’s Day, Good Friday and Easter Monday, Labour Day, Madaraka Day, Idd-ul-Fitr, Moi Day, Kenyatta Day, Independence Day, Christmas Day, and Boxing Day.
In addition, the Act makes provision for specific public holidays for all persons belonging to the Islamic faith and Hindu faith by declaring Idd-ul-Azha and Diwali respectively as public holidays.
The Act also provides that the day in any year during which a general election is held following the dissolution of Parliament shall be a public holiday.
Section 3 of the Act permits the relevant minister to add or remove public holidays by publishing a notice.
In reliance on the New Constitution Dr Mutua declared that October 10 is no longer a public holiday.
Article 9 of the New Constitution provides that the national holidays are (i) Madaraka Day, to be observed on June 1, (ii) Mashujaa Day, to be observed on October 20; and (iii) Jamhuri Day, to be observed on December 12.
It is noteworthy that the New Constitution only makes provision for “national days” and not “public holidays”.
However, it adds that a national day shall be observed as a public holiday.
The new Constitution also adds that “Parliament may enact legislation prescribing other public holidays”.
It is therefore clear that public holidays in Kenya are not limited to the three national holidays specified in the Constitution.
Since Section 7 of the transitional provisions of the new Constitution provides that all laws in force immediately before the effective date of the new Constitution continue in force subject to any alterations necessary to bring them into conformity with the New Constitution, the Public Holidays Act therefore continues in full force and effect.
Moi Day, thus, remains a public holiday in Kenya until the minister publishes a notice in the Kenya Gazette to declare otherwise.
The new Constitution, by its silence, cannot be deemed to have repealed Moi Day as a public holiday while at the same time leaving Labour Day as a public holiday.
In other words, if the interpretation of Dr Mutua was to hold true, this would absurdly mean that days such as Labour Day, Christmas, Idd and Diwali are no longer public holidays since they are not recognised in the New Constitution.
The Public Holidays Act provides that where a day specified as a public holiday falls on a Sunday, then the first succeeding day, not being a public holiday, shall be a public holiday.
Strictly speaking therefore, Kenyans ought not to have been required to go to work on October 11, except where special circumstances legitimately required otherwise.
The new Constitution ought to spell out a new era of absolute regard for all laws.
If an Act of Parliament spells out a procedure for adding or removing public holidays, there is no reason why that procedure should not be followed.
Although this may seem like a small matter, it underlines the importance for all of us to read, understand and respect the new Constitution as well as statutes.
If we leave this important task of reading, interpreting and applying laws to politicians, government officials, religious leaders or other third parties, we will be left in a very precarious situation indeed.
Civic education on the new Constitution should not end with the promulgation ceremony.
A lot more work remains to be done to ensure that Kenyans fully understand the new laws that govern them and their implications.
In a recent case involving Zipporah Mathara, the High Court ruled that imprisonment of one in civil jail due to non-payment of debts — which is permitted under the Civil Procedure Act — goes against the International Covenant on Civil and Political Rights which guarantees individuals basic freedoms of movement and of pursuing economic, social, and cultural development which Kenya has ratified.
The High Court was relying on Article 2 (6) of the new Constitution which provides that “any treaty or convention ratified by Kenya shall form part of the laws of Kenya”.
This decision sets an important precedent in that it seems to imply that international treaties which Kenya has ratified can take precedence over Acts of Parliament.
The fact that to date it seems no one is yet to compile a comprehensive list and text of all the treaties which Kenya has ratified makes this recent court decision all the more concerning. How is it that we are subject to laws which we are not even aware of?
Is anyone intending to do anything about it?
Kiunuhe is a Nairobi-based advocate. [email protected]