MPs’ record-setting Bills and blunders

A special Senate and National Assembly session during the State of the Nation Address by President Kenyatta on March 28, 2015. PHOTO | FILE
A special Senate and National Assembly session during the State of the Nation Address by President Kenyatta on March 28, 2015. PHOTO | FILE 

The responsibility of implementing the new Constitution unveiled in 2010 was bestowed on the 11th Parliament.

A new breed of MPs devoid of executive roles under the Constitution was charged with this responsibility alongside their normal roles of representation, oversight, law and budget making.

To Kenyans, the fact that the 349 MPs did not have executive roles meant that they ideally had more time to legislate and play their oversight role effectively.

A comparative study shows that the 11th Parliament processed 433 bills, 187 more than the 249 prepared by the previous House.

Legislative and Procedural Services principal clerk assistant Kipkemoi Kirui noted that MPs were obsessed with introducing bills.

“It is worrying, especially when they are in their hundreds. We do not have capacity to regularly audit quality of the pieces of legislation,” Mr Kirui told journalists in Mombasa recently.

Constitutional lawyer Cliff Oduk noted that the required legal threshold in the legislation process is of low quality.

“Poorly drafted legislation result from quorum issues such that the MPs are not always present in the House or during departmental committees when their input is required,” he said.

This could explain why the 11th Parliament has had a number of its laws challenged in court. In most instances, it is their constitutionality that was under scrutiny.

Article 2 stipulates that the Constitution is the supreme law of the land and that any act or omission in contravention of the Constitution is invalid.

“Some legislations being challenged in court shows that their constitutionality is in question and that MPs didn’t look at the finer details in them,” said Mr Oduk.

Here are some memorable controversial legislations processed during the 11th Parliament whose tenure ends on August 7, 2017.

Anti-Doping (Amendment) Bill 2016: This Bill was drafted with the sole purpose of enabling Kenya to compete at the Olympic games. It was accented to on June 23, 2016.

Controversy set in when the State Law Office amended the draft Bill which the Sports ministry had agreed on with the World Anti-Doping Agency (Wada).

Wada had demanded changes following a spate of drugs scandals involving Kenyan athletes. Kenya had missed two deadlines set by Wada to show it was tracking cheating in sports.

In April 2016, Kenya introduced new criminal laws as part of the anti-doping Bill, creating a national testing authority and making doping an offence punishable by imprisonment.

It was widely assumed that the measures would satisfy Wada but the agency later cited “inconsistencies” in the legislation and declared Kenya “non-compliant”. MPs were recalled for a special sitting to pass the Bill.

Security Laws Act: The Bill was assented to on December 18,2014. MPs passed it during a chaotic session characterised by physical and verbal abuse.

The tyranny of numbers adage played out even as opposition MPs lamented that Kenya was becoming a “police state”, noting that the legislation infringed on civil liberties.

Popularly referred to as the anti-terror legislation, the law was fast tracked and enacted within 10 days of its initial proposal. The law compelled journalists to seek approval from the police before publishing or broadcasting information relating to investigations on terrorism.

The opposition, civil society and media challenged the law in court. The High Court declared eight offensive clauses in the Act unconstitutional, saying they were a violation of fundamental human rights and did not add value to the fight against terrorism.

President Uhuru Kenyatta signed the Bill into law in December 2016, essentially clipping powers of the Office of the Auditor-General to carry out its mandate.

The Act came on the back of a number of corruption cases which rocked the political class and were cynically described as devolution of corruption.

The Bill sought to restrict the office’s oversight on national security matters and control in hiring of staff, which were viewed as obstacles to the scrutiny of government expenditure. Opposition lawmakers branded the move an attempt by the Jubilee government to kill independent offices.

Upon its passing, the Bill was referred to the Senate which amended and reverted it to the National Assembly, which rejected the corrections and referred it to the Mediation Committee.

Civil society groups are behind the High Court ruling which declared the 2013 Constituency Development Fund (CDF) Act unconstitutional. Mr Kenyatta in December 2015 signed into law the National Government Constituencies Development Fund Bill 2016 sponsored by MP Moses Lessonet.

The Senate spoke out against lack of inclusion in the new CDF Bill, vowing to challenge its implementation in court.

A provision in the Bill helped MPs to circumvent a court ruling denying constituencies Sh10 billion in CDF money. The first amendment removed a legal provision that allows constituencies in marginalised areas a greater share of the total CDF allocation.

Instead, MPs agreed that CDF money would be shared equally among all the 290 constituencies.

Election Laws (Amendment) Act: Governors, media owners and business leaders have differed with the Attorney-General on the form of back-up for the voters register best suited to the August 8 General Election.

While Jubilee senators backed their counterparts in the National Assembly to endorse a manual system, the opposition was in favour of an electronic system.

Hardline positions were evident from the beginning of the sessions. The House was full. The Bill roots for a manual backup in identification and transmission of results in the event the electronic system fails.

The Judiciary Service Commission Act (amendment): The High Court declared an amendment to the Judicial Service Commission Act unconstitutional, stripping President Uhuru Kenyatta of power to hand-pick the Chief Justice and his deputy.

In their May 2016 ruling, the five-judge Bench said that the appointment of the top judge was the sole mandate of the Judicial Service Commission (JSC).

The judges argued that the amendment granting the President power to select the head of the Judiciary would effectively return the country to the dark past when patronage, nepotism and corruption determined appointment of senior public officers contrary to the new Constitution’s demand for open and accountable processes that promote good governance.

They said the amendments compelling the JSC to submit three names of each position to the President violated Article 166 (i) of the Constitution.
Division of Revenue Act: Mr Kenyatta signed into law the Division of Revenue Bill on June 20 after MPs agreed to allocate counties Sh302 billion ending a three-month stalemate.

A mediation committee with representation from the Senate and Parliament settled on a middle ground for the Bill that threatened to throw county operations into a crisis. Failure to have the legislation in place meant that counties could not proceed to prepare their annual budgets.

MPs approved the Bill on June 14, which was the last day before the 11th Parliament was indefinitely adjourned to pave way for the August 8 General Election.