Why Rush New Laws On The Constitution?

Here we go again: Parliament has to rush bills through because they think that otherwise they risk premature dissolution. At the same time the Minister of Justice reminds us that many of the bills that were passed in a similar rush in August last year were poorly drafted and even unconstitutional.

Sitting until midnight is no way to get good legislation passed. The legislation that needs to be passed by February 27th is mostly on land or devolution—both highly technical and very important. How can we expect exhausted MPs to make constructive contributions to the law making process?

Fortunately the relevant committee has been working on the land drafts. But the Cabinet approved those bills only on Thursday last week, and they have not been available to people generally and will be published just in time for Parliament’s debate. The whole idea of having three “readings” of a bill is to ensure that new laws are properly debated. Cramming the process into a few days is a negation of the normal process. Even if Parliament can cope, the whole process becomes completely opaque to the rest of us.

Again it is true that the Commission on the Implementation of the Constitution has been looking at the legislation and there have been many meetings, “workshops” and other events looking at these draft laws. That is all good. But the nation’s law making body is Parliament. It is the parliamentarians we elect to make laws, it is their debates (only in the full house) that are published verbatim. They must have enough time so that we have the chance to monitor what is happening. The Constitution requires that there be opportunities for public participation in law making – though this part does not come into effect until after the next elections. But the Constitution also makes “participation” and “transparency” national values – applicable now.

By August 27th some other laws must be passed (on leadership (on which there is already a draft), on recall of MPs (already passed but very unsatisfactory), on election petitions in the case of parliamentary elections, on petitioning parliament (there is already provision in Parliament’s Standing Orders, though we would want some changes to make it constitutional), on the judiciary fund, on financial control and on the security forces and the command of the police.

Six months ago we suggested that the CIC should, in consultation with the President and Prime Minister, the Ministry of Justice, the Attorney-General, the Speaker and the Chair of the Parliamentary Oversight Committee, and the Law Reform Commission, propose a new timetable for the laws strictly required by the Constitution with methods for proper public participation and consultation. We suggest that this should still be done for the laws to be passed by August 27th, including the land and devolution laws. Devolution should be given top priority, then land, but all could be passed by August. If necessary February 27th could pass without any new laws.

Yes – let the MPs sit from Monday to Friday, and on Saturday as well if necessary. Let them not take any more holidays (they will just use them for electioneering before the campaign has officially started), but let them do a good job of scrutinizing these laws. But what is this about early dissolution? Before looking at that: the Constitution says that the National Assembly (by a two thirds majority) can give itself more time if the Speaker certifies that there are “exceptional circumstances” (Article 261(3)(b)). There may be some doubt about whether there are “exceptional circumstances” but little purpose is achieved by ignoring this possibility.

If the legislators do not pass the legislation any person can petition the High Court (Art. 261(5)). The High Court could prescribe a timetable for completion of the legislative task or tasks - the various parties to the case would submit suggestions for the timetable (and we have just suggested how a timetable could be worked out). The High Court could simply leave Parliament to struggle on, which might be appropriate if the necessary legislation was well on the way to being passed.

If the High Court did lay down a timetable, it could require reports to the Chief Justice, and in the absence of report of legislation being passed, the CJ would assume it had not been. Or a fresh application would have to be made to the CJ if the timetable was not met. In those circumstances he has no option but to advise the President to dissolve the National Assembly and the President must comply (Art. 261(7)). But this does not say “forthwith”.

With dissolution looming anyway (latest January 14th next year, and some saying October this year), and the IEBC indicating it can be ready for December, but having difficulty earlier), with the new constituencies not yet fixed, surely the High Court, and if necessary the Chief Justice, would hardly rush into a process leading to dissolution that would delay the law making process further, and precipitate an election for which preparation were inadequate. Is this sense of crisis, based on misreading of the Constitution, manufactured to make sure that legislation does not have adequate scrutiny?

The authors are directors of the Katiba Institute.