AG And CIC Have To Work In Harmony

The Constitution says that Parliament must pass necessary laws to
implement the Constitution, and for this purpose, “the Attorney-General,
in consultation with the Commission for the Implementation of the
Constitution, shall prepare the relevant Bills for tabling before
Parliament” (Article 261).

But the Committee of
Experts seems to have lost sight of the need to be precise in its
drafting and section 5 of the Constitution’s Sixth Schedule
(transitional provisions) expresses the functions differently and has
given the CIC various functions about law making for implementing the
constitution:

• “coordinating with” the AG and the Law Reform Commission in preparing laws
• “monitoring” the development of laws
• “facilitating” the development of laws
• “overseeing” the development of laws.

The
AG seems to think that his relationship with the CIC is limited “to
consulting with CIC who have to ‘quickly’ give suggestions before the
same Bills are forwarded to Parliament”. The CIC
may be temporary, as the AG says, but it is not a "non independent
unconstitutional office” as he is reported as saying.

The Constitution
sets it up, and it is governed by the same constitutional provisions as
other commissions, including that they “are subject only to this
Constitution and the law; and are independent and not subject to
direction or control by any person or authority.” These provisions also
apply to “independent office holders” – but these do not include the AG
(only the Auditor General and the Controller of Budget).

The
Attorney General is not described as “independent” at all. He is
basically the government’s lawyer and has to carry out the functions
given by the Constitution, by law and by the President (subject to what
we would argue is an overriding obligation to “promote, protect and
uphold the rule of law and defend the public interest”). He no longer
has security of tenure – and in consequence as an individual may well
cease to hold office with the change of government at the next election,
unlike the CIC “whose mandate might as well end within two years”
according to the present AG. The Constitution says that the CIC will
wind up after 5 years or “at the full implementation of this
Constitution as determined by Parliament, whichever is sooner”.

What
does “consultation” require – and what does “in consultation with”
mean? Courts, law and constitutions in other countries have examined
these phrases, and emphasise that “Consultation must allow sufficient
time, and a genuine effort must be made. It is a reality not a charade”
(in the words of a New Zealand court). “In consultation with” requires
more.

The South African Interim Constitution of 1993 said, “Where in
this Constitution any functionary is required to take a decision in
consultation with another functionary, such decision shall require the concurrence
of such other functionary”. And the Constitutional Court accepted that
this was the meaning under the current Constitution of that country,
even though the explanation is not repeated there. “Shall require the
concurrence” – in other words the CIC must agree with the AG before he
can proceed.

Kenyans would be better served if the
AG and chair of the CIC would get together and quietly sort out their
relationship within the terms of the Constitution, rather than engaging
in megaphone quarrels. Despite the confused language of the
Constitution, it is clear they are supposed to work closely together
(“in consultation” and “coordinating with”). Both have the obligation
and the responsibility to ensure that the constitution is implemented in
accordance with its principle and procedures.

The
CKRC (of which Mr. Githu Muigai was a member) recommended an
independent implementation commission because it anticipated resistance
from the executive and the legislature to implementing and enforcing the
constitution (just as it has turned out to be)—and wanted it to have
adequate powers for this purpose.

The CIC has the
responsibility to help parliament (through its Oversight Committee)—and
the public more generally– in ensuring the proper implementation of the
constitution. To give primacy to the AG in preparing bills and in
shepherding them through Parliament without giving proper opportunity to
the CIC is to go against the spirit of the constitution. It may also
have the effect of strengthening forces in government and parliament who
are opposed to the constitution. The AG represents the government,
which in general has shown little fidelity to the constitution. The CIC
represents the people and must safeguard their interest in securing the
values of the constitution and the protection and promotion of their
rights—and in promoting their participation in the law making process,
which seems to be undervalued by the AG.    

 The authors are Directors of the Katiba Institute