Untitled - Africa Centre for Open Governance

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The Registrar of Political Parties, an office established under the Political Parties Act of 2007 to register political parties, maintain records of political parties and arbitrate disputes between political parties, called upon parties to apply for registration, without which they would not take part in elections. The Political Parties Act was also enacted in 2011. The law contains important provisions to streamline political party operations as provided for under Article 91 of the constitution. It provides for the registration, regulation, and funding of political parties and other connected purposes. While these laws went some way towards improving public confidence in the electoral process, it was not lost on keen observers that many amendments had been made to the original bills and that short-term interests may have informed their enactment. The Political Parties Bill, for example, was amended to exclude strict control over matters such as party-hopping and formation of alliances. 31 Other analysts also raised concerns with provisions of the IEBC Act. In particular, it was argued that the standards set for the qualifications of the chairperson were not sufficiently high and that Parliament compromised the independence of the Commission by overly directing it in connection to delimitation of boundaries of constituencies. 32 2.6. Legislative Challenges The Constitution of Kenya 2010 compels Parliament to enact a number of laws within the timelines set out in Schedule 5. 33 Parliament does, however, have the power to extend the timeframes stipulated in Schedule 5 by passing a vote supported by at least two thirds of the National Assembly for a period not exceeding one year where the matter is certified to be exceptional by the Speaker of the National Assembly. 34 In order to ensure that all laws are passed in time, the constitution makes the following provisions: The constitution charges three institutions with timely preparation of laws: the Office of the Attorney General, the Commission for the Implementation of the Constitution (CIC) and the Kenya Law Reform Commission. 35 These institutions are required to work together at various stages of the preparation of the legislation for submission to Parliament. 36 It should be noted, however, that the constitution does not impose any sanctions on these institutions should they fail to carry out this mandate. If Parliament fails to enact any particular legislation within the period specified in the Fifth Schedule, the constitution provides that one may petition the High Court for an order directing Parliament and the AG to ensure that the laws are passed within the time frame stipulated. 31 The Kenya National Dialogue and Reconciliation (KNDR) Monitoring Project, “Progress in Implementation of the Constitution and other reforms. Review Report”, October 2011 32 International Centre for Transitional Justice, “One Year since Promulgation” (August 2011) 33 Article 261 34 Article 261 (2) (3) “Exceptional circumstance” is not defined and this provision is entirely dependent on the Speaker not abusing his discretion 35 Article 261 (4); , Article 5 (6) (b), Sixth Schedule 36 Ibid 16
If Parliament still fails to enact a law within the stipulated timeframe, the Chief Justice “shall advise the President to dissolve Parliament and the President shall dissolve Parliament.” 37 The new Parliament formed thereafter is then required to pass the outstanding legislation within the timeframes laid out in Schedule 5. The time, however, begins to run from the date that the new Parliament commences its term. 38 Despite these provisions, there have been a number of concerns raised regarding the quantity and quality of laws that have been passed since the promulgation of the constitution and of those that are yet to be passed. These concerns arise from the number of laws to be passed, the time within which they are required to be enacted and the performance of the key legislative elements in carrying out their legislative role. Law Making Process 1. A layman’s or Raw draft Bill emanates from the line Ministry, Government Department or any Institutions mandated with the generation of Bills. The draft is then released to KLRC and AG’s office for preparation of the Bill. 2. The draft Bill from the KLRC and the AGs office is released to CIC. CIC uploads the draft on its website and releases it to the widest possible range of stakeholders to allow the public to review and give feedback on how best to improve the draft Bill. 3. CIC convenes a series of stakeholder consultations to seek consensus and/or fill any gaps of a constitutional nature which will not have been addressed during the Line Ministry public consultations. 4. CIC then convenes the AG, KLRC, Line Ministry and any Institution involved in the generation of the Bill to a roundtable over the draft Bill to finalize the Bill by making various amendments which will have been informed by the internal and external consultations. The CIC oversees this final development of the proposed Bill to ensure it is in line with the letter and spirit of the Constitution. 5. The AG prepares the Bill and the Bill is then released to Cabinet for approval. 6. Cabinet receives the proposed Bill, if need be, changes to the Bill are made and finalized before it is approved. 7. The AG then publishes the Bill as approved by Cabinet and the Bill is then tabled in Parliament for debate. 8. Parliament passes the Bill and it is taken back to the AG for preparation of the vellum copy before being handed over to the President for assent. 9. The President assents to the Bill by signing it. Thereafter, the Attorney-General, without delay, ought to publish the new law. Source: http://cickenya.org/law-making-process 37 Article 261 (7) 38 Article 261 (8) 17
Page 3 and 4: Contents Abbreviations and Acronyms
Page 5 and 6: IEBC IIEC IPOA IPI JSC KAA KACC KDF
Page 7 and 8: 1. Introduction The year 2011 saw s
Page 10 and 11: 2.1. Reforms in the Judiciary Kenya
Page 12 and 13: Specific reform initiatives Notewor
Page 14 and 15: Why Vet The principal purpose of ve
Page 16 and 17: The Acquittal of William Ruto The a
Page 18 and 19: 2.3. Police Reforms The great strid
Page 20 and 21: 2.4. Integrity and Leadership: The
Page 24 and 25: In December 2011, the AG and the CI
Page 26 and 27: Beyond the letter of intent sent by
Page 28 and 29: Whereas the ICC intervention may in
Page 30 and 31: 3.2. Foreign Arrest Warrants for Co
Page 32 and 33: 4. Setbacks in the War against Corr
Page 34 and 35: A joint communiqué issued at the c
Page 36 and 37: Responding to a question by private
Page 38 and 39: Faced with the accusations by her o
Page 40 and 41: A research study by the Internation
Page 42 and 43: 4.4. Corporate Governance 4.4.1. CM
Page 44 and 45: 5. The Year Ahead Some progress was
Page 48: Acknowledgment AfriCOG thanks team

Untitled - Africa Centre for Open Governance

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