The last month saw the Judicial Service Commission (JSC) become a beehive of activities as they engaged heavyweight legal minds including judges and legal scholars in interviews that would see the reconstruction of the Supreme Court of Kenya. This was due to vacancies that had been occasioned by the retirement of the CJ, Dr Willy Mutunga. Additionally, his deputy Kalpana Rawal and the third in seniority, judge Philip Tunoi had been technically removed from office following a refusal by the Supreme Court majority sitting to adjudicate on their retirement age cases, thus rendering the Court of Appeal's decision final. The Court of Appeal had ruled that the retirement age of Judges is at 70 years. The JSC is currently working on legislation to be discussed in Parliament setting the age of retirement of the Deputy Chief Justice as that of the Chief Justice.
The constitution requires the Supreme Court judges to be seven. However, it is properly constituted for the purposes of its proceedings if it is composed of five judges. The previous Supreme Court, led by Chief Justice Willy Mutunga was accused of never producing any worthwhile jurisprudence that could set a precedent for lower courts. In fact the previous supreme court was dogged with scandal from the get go- from the 2013 presidential petition to the various corruption scandals involving some of the judges therein. As earlier stated the survivors of that currently sitting bench include Justices, Mohahmed Ibrahim, Ojwang, Dr. Smokin Wanjala and Lady Njoki Ndung'u. The appointments come at a time when the judiciary has received a backlash and lost public confidence due to corruption, a plague that is widely entrenched in many State institutions.
Justice Maraga having stood out as the best candidate for Chief Justice based on his integrity, experience in both the legal private practice and on the bench, good temperament, his independence and ability to co-ordinate Judiciary affairs. Justice Maraga also emphasized his Christian ethics as a guiding beacon in his life. Justice Maraga is 64 years old. The Chief Justice position has an age limit of 70, meaning he will only serve for six years before the constitutional term of ten years expires. The commission will have to interview applicants for his replacement when this time comes. Other appointees include Justice Philomena Mwilu, who has had experience in various capacities for over 32 years. She had served as a High Court Judge and Court of appeal judge prior to her nomination as Deputy Chief Justice.
The Maraga led bench has faced sharp criticisms on failing to meet the two-thirds gender principle in the constitution of the Supreme Court,A Constitutional requirement for all public appointments. This arose with the outcome of Justice Isaac Lenaola as the best candidate and his eventual swearing in as a Supreme Court judge. Justice Lenaola beat a pool of senior judges from the Court of Appeal who had applied for the position to replace retired judge Philip Tunoi. In settling for Lenaola, JSC conformed to the principle of regional balance required in appointments of the Supreme Court Judges. The Justice during interview for the post characterised himself as "liberal and pragmatic" and said he wants to be analytical about issues. Indeed this can be seen during his helm as the lead of the Constitutional; Human Rights division of the High Court. There is a lot of optimism in the currently constituted Supreme Court. Its apex leaders have now pledged to set systems in place that will end corruption and work towards regaining public interest in the Judiciary. We look forward to jurisprudence that will emerge therefrom.
The Care and Protection of Child Bill, 2016, sponsored by Nominated Senator Elizabeth Ongoro is likely to be presented before the Senate when it resumes next week. The Bill is designed to keep pregnant girls in school by providing a legal framework to facilitate a smooth transition for the parent student. It provides that a learner should not be denied her right to education for being expectant. It also advocates that the girl receives adequate support; from the school, family and government to be able to pursue her dreams. Compulsory pregnancy tests are forbidden and if the girl child has a test done and the results turn out to be positive, then the teachers are barred from revealing the results to anyone else, including a student's parents or guardians. The bill states that "A school principal who defies the proposed law will risk being jailed for three years or a fine of Sh. 3 million, or both."
The Bill also seeks to protect school girls who get pregnant against discrimination and stigmatization. It provides that a learner should not be denied her right to education for being expectant, but instead should be given adequate support to pursue her dreams. "Every girl shall have the right to remain in school and receive the necessary support to continue their education and participate fully during their pregnancy or as a parent student", states the bill. The school administrators will be required to ensure that such girls study in a conducive environment without harassment. Mrs. Ongoro said the Bill was necessary in order to prevent stigmatization in schools owing to pregnancy. She went on to add that most pregnant students were victims of discrimination by fellow students and teachers, a situation she argues has led many to drop out of school. The Bill makes sure that the learner will not be forced out of school unless they request to leave of their own will.
Furthermore, once the girl gives birth they will be given a year off to look after the baby but must be readmitted once the period lapses. At home, their parents or guardians will be expected to provide maximum care to ensure that they recuperate faster in order to return to class. The county government will be required to build and maintain care centers that will take care of the school girl's children.
The Bill comes in the wake of increased teenage pregnancies in the country. A recent case is of 22 girls, who were found to be pregnant in a secondary school in Uasin Gishu County. The Principal of the school was quoted saying that the blame lay on the fact that the girls were day scholars. She proposed a solution of building a dormitory to house all students "...so that they don't fall prey to such incidents".
Whereas the sheltering of teenage girls could help in reducing the number of pregnancies, unfortunately, there are more factors at play that will need consideration. According to a recent report by the Kenyan Government and the United Nations Population Fund, 13,000 girls leave school early every year due to pregnancy. The report states that low income, low levels of education and little or no access to contraception and reproductive health are the major factors behind high teenage pregnancy rates in Kenya.
The Reproductive Health Care Bill 2014 proposed access to comprehensive sexual education and provision of contraception to teens from ages 10 to 17 years. It was intended to reduce the high number of teenage pregnancies and engagement in risky sexual behaviors. However, it has been met by opposition from the Kenya Union of Post Primary Education Teachers (KUPPET), The Kenya National Parents and Teachers Association and the Cabinet Secretary of Education, who all claimed the Bill is 'immoral'.
Kenya's high teenage pregnancy rate has resulted in thousands of girls abandoning their education early, stunting the development of nearly half the nation. The high number of cases has been blamed on a multitude of causes, such as early marriage, broken families, rape, peer pressure, inadequate sex education and alcohol and substance abuse.
Kenyan teenage girls are set to remain, for the foreseeable future, as vulnerable as ever, with the media and fast internet providing ready stimulating information for the teenagers. Parents are advised to take time with their children to talk about sex instead of assuming that they are taught about sex and abstinence in school.
Many cases of teenage pregnancies go unreported. Often enough, this because the girl was raped by someone she knows, such as a male relative, teacher, pastor or neighbor. Some of the cases are not reported, however, because of stigma and fear, while others never see the corridors of justice after the administration and police are bribed. This is a very serious consideration that should be included in the Bill.
Other factors, such as, some communities see rape and teenage pregnancy as normal and thus the perpetrator goes unpunished and is merely told to pay a dowry and marry the victim, so that she becomes his wife. This is mostly seen in the pastoral communities where the girls' families value cattle more than looking for justice and early marriage is a common practice.
For the Bill to succeed, there should wide consultation with all stakeholders who include parents, school heads, teachers, student councils, medical practitioners, psychologists and religious leaders. The contributions of all these parties will help to safe guard parental authority, stop the introduction of "adolescent friendly clinics" and Comprehensive Sexual Education, help deal with the issues of stigma and discrimination and also to come up with a noble document that will safe guard the vulnerable teenage girls from early pregnancies.
Corruption has emerged as one of the biggest vices ailing Kenya. The nation stands at position 139 out of 168 countries according to the 2015 Global Corruption Perception Index (CPI) released by Transparency International. This situation prompted the Kenya Private Sector Alliance (KEPSA) to develop and present to the President a legislation called "Bribery Bill" back in November 2015. A Cabinet Meeting chaired by President Uhuru Kenyatta on the 22nd of March 2016 later approved and adopted the Bill. The anti graft law will now be presented in the National Assembly for debate.
The proposed Bribery Bill aims to criminalize both the offering and receiving of bribes. This will be true for any individual, whether local or foreign. All facets of bribery have been covered including making promises to give something in exchange for an advantage. The Bill also makes it a requirement for private entities to have in place procedures that will help in the prevention of bribery. The Cabinet explained that this requirement was added in because the private sector was essentially the "supply side" of the bribery equation, so it would make sense to stop bribery at its source. Any private firm, whether local or foreign that conducts business or charity work in the country will be subject to the new law. It will be compulsory for the firms to "have in place procedures appropriate to their size and nature of operations for the prevention of bribery". This is meant to force firms to implement internal rules that will stop workers from giving or receiving bribes. Any firm that fails to put up these measures will have their directors, senior officers or any other individual acting in these capacities liable to abetting corruption and as such will face jail terms of up to 12 months. Any individual or firm suspected to have benefited from a bribe would have their properties seized. Also, according to the new law, any company or person found to be giving or receiving bribes would be barred from ever transacting business with the government. This would be an especially apt addition considering the recent major corruption scandal involving the National Youth Service where several private companies were awarded approximately 760 million shillings through irregularly acquired contracts.
Successful implementation of this Bill would be considered a major success in the fight against corruption. Corruption has consistently undermined the country's prosperity, security and future. Setting up and implementing strong policies is crucial to having an efficient anti corruption system. This is a war that has to be won if Kenya is to succeed, so it is great to see that there is support for the bill, and the will to ensure that it works.
The High Court of Kenya ruled on monday that several sections of the Security Laws (amendment) Act 2014 were unconstitutional. President Uhuru Kenyatta had in December signed into law the controversial security bill after it had been passed in a very chaotic Session of Parliament. The opposition and other civil bodies later opposed it in Court. The Law had amended 22 other Acts of Parliament in matters to do with National Security.
The five Judge bench nullified 8 clauses of the Act in their verdict. They overturned the restrictions on media, as these were found to violate the freedom of expression and the freedom of the media as guaranteed in the Constitution. The Bill had prohibited the media from reporting on matters that were still under investigation and from reporting on Security Operations.
The Court also nullified the Sections touching on the right to a fair hearing. These would have given the Prosecutor power to withhold evidence and the power to frustrate someone trying to be released on bail. In addition, the Court found that the Section which limited the number of asylum seekers and refugees allowed to stay in Kenya had violated the 1951 UN Convention in the Status of Refugees, which happens to be part of the laws of Kenya, as stipulated in the Constitution.
The Government, responding through the Spokesman Manoah Esipisu, argues that the new law was in response to the "shifting security requirements needed to keep Kenya safe". The Spokesman said that Government believes that the clauses nullified are necessary in its efforts to keep Kenya safe and that it is currently studying the implication of the ruling to determine whether they will appeal the decision or return the clauses to parliament with the necessary modifications. He was keen to stress that the Government respects the decision of the Court. He noted that this was a large bill and that the Court had in fact left about 90% of it intact.
Organizations in the Civil Society and the Opposition had contested 20 clauses in the Act which they felt were unconstitutional. CORD and KNHCR wanted the Court to throw out the law on the basis that it was unconstitutional and untenable given the nature of debate that passed it and that neither the Public nor the Senate had any input on it. CORD leader and former Prime Minister Raila Odinga in a statement congratulated the Court for the ruling. He said that even though the Court didn't agree with them on every matter they presented, he was happy that the Court stood up for the Constitution. Mr Odinga said that in doing so, the Court had asserted its Jurisdiction to supervise, ensuring that the Constitution was being adhered to.
The office of the Inspector-General is established under Article 245 of the Constitution and Section 8 of the National Police Service Act, No. 11A of 2011. According to Article 245(2)(a), the Inspector-General is appointed by the President with the approval of the Parliament and in sub-article (2)(b) as read together with Section 8 of the Act, s/he shall have overall and independent command over the National Police Service. Under Article 240, he is also a member of the National Security Council, which exercises supervisory control over national security organizations; and under Article 246, he is a member of the National Police Service Commission. The Inspector-General is only appointed for a single term of four years, and can thereafter not be reappointed. The procedure for his/her appointment is spelt out in Section 12 of the Act and is as follows:
The President shall constitute a panel with representatives from his office, the Law Society of Kenya, the Kenya National Commission on Human Rights and the Police Oversight Independent Authority. This panel shall then send out a declaration of the vacancy in the office of the Inspector-General and receives applications over the same,and shall conduct public interviews and shortlist at least three persons for the position. These names shall then be published in the Gazette.
Within seven days of this nomination, the names shall be forwarded to the President for nomination of an Inspector-General, who shall within seven days of the receipt of these names nominate a person for the position then forward the nominee's name to the Parliament for approval.
The Parliament shall then, within fourteen days of the receipt of this name, vet the nominee and either approve or reject them, and notify the President of this approval or rejection. If approved, the President shall, within seven days of this notification of approval, appoint the nominee as Inspector-General by notice in the Gazette. If rejected, the Speaker of the National Assembly shall communicate this to the President and request for a fresh nominee. The President shall be required to nominate another person from the shortlisted names within seven days.
The Inspector-General shall only be removed from office on the grounds laid out in Article 245(7) of the Constitution. These grounds are:
Serious violation of the provisions of the Constitution.
Gross misconduct, whether in the performance of duties or otherwise.
Physical or mental incapacity to perform their functions.
Incompetence.
Bankruptcy.
Or any other just cause.
Under Section 15 of the Act, a person desiring the removal of the Inspector-General from office on any of the above grounds may petition the National Police Service Commission setting out the alleged facts constituting that ground. The Commission shall then consider the petition and if two-thirds of the members present and voting agree that it discloses a ground for dismissal, it shall recommend to the Parliament a recommendation for removal. If the Parliament is also satisfied that there is a ground, it will forward the petition to the President who will then constitute a tribunal to investigate the matter and make a binding recommendation to the President, who shall act in accordance with it. While the Inspector-General is suspended for the above reasons or is incapable of performing their duties, the may appoint the Cabinet Secretary in-charge of internal security to be the Inspector-General for not more than three months. Under Section 20(1)(b), the Inspector-General may also choose to resign from office. This section provides for the vacancy of this office. It shall become vacant on the death, resignation, or removal from office of the Inspector-General.
CURRENT SITUATION
Currently, the Inspector-General, in light of the recent spate of threats to security, offered to go into early retirement. This is different from resignation, where one vacates office immediately and ceases to hold it. The Inspector-General still holds his office until the appointment of another official. The appointment of a new Inspector-General is a rigorous process involving the participation of many public bodies mentioned above. This is because it is an independent office. However, the Security Laws (Amendment) Bill currently being discussed in Parliament seeks to change this provision by proposing that the President shall instead, within fourteen days of the vacancy of this office, nominate a person for appointment and submit this name directly to the National Assembly (Section 97(a)). Section 97 (b) of the Bill deletes subsections 3, 4, 5, 6 of the Act which provide for the participation of the panel in the public vetting of the President's nominees, nomination of three potential candidates, and their approval by Parliament. Another crucial departure from the Act provided for by the Bill is the elimination of the public participation in the removal of the Inspector-General provided for under Section 15. Here, as earlier explained, any person desiring the removal the Inspector-General on the Constitutional grounds above can present a petition to the Commission on the same. Section 98 of the Bill seeks to delete subsections 2, 4, 5, 6, 7, and 8 of Section 15 of the Act that provide for the procedure of the consideration of such a petition, also discussed above.
Devolution has been a contentious matter both in government and around the country for a while now. One of the key issues out of it is of the County Government Amendment Bill. In the midst of the push and pull that is going on between the Senators and Governors the contention of the said bill arose. The key sponsor of the Bill is Mr. Stephen Sang who is the Senator of Nandi County. From the several concerns that have been brought about by the tabling of the Bill, what stands out is the lack of a proper understanding of Devolution. This has brought about a tag of war between Senators and Governors in regards to who holds the most power between the two; an argument that I could term barbaric as our leaders should be focused on working together to deliver the promises made to the Kenyan people, instead of trying to achieve their own selfish goals. In Summary, the bill creates a County Development Board which will be chaired by a Senator and comprise of; a county woman representative, the elected MPs in the constituencies within the county, the Speaker of the county assembly, the majority and minority leaders in the county assembly, the chairperson of the county public service board, the chairmen of the county assembly committees in charge of planning, finance, and budget. The representative of the national government in charge of planning will also sit in the board. Governors will act as secretaries to the board. The Board shall be responsible for the coordination and harmonization of county development plans and projects. The Bill also seeks to establish or designate County Headquarters. The proposed Bill seeks to amend the Principal County Government Act (Act no 17 of 2012). This is essentially an Act of Parliament to give effect to Chapter Eleven of the Constitution; to provide for county governments powers, functions and responsibilities to deliver services and for connected purposes. Kinyanjui Kamau lists the following as the main objectives of the Act. The main objectives of the County Act include:
To provide for matters necessary to give effect to Chapter 11 of the Constitution
Give effect to the objects and principles of devolution
Provide for powers, privileges and immunities of county assemblies
Provide for public participation in the county assembly and its activities
Ensure that cultural diversity of a county is reflected in its organs
Prescribe mechanisms for the protection of minorities
Prescribe procedures and standards for the management of county governments
The Commission on Implementation of the Constitution (CIC) has on several occasions stated that the proposed bill violates the constitution. Governors believe that it will diminish their role in regards to the budget making process. The Key issue with the bill however is its contravention to the Supreme Law of the Land. The following are some of the contentious issues raised by those opposing the bill: -
The Unconstitutionality of the Bill. Several articles of the Bill are contrary to the Constitution. The Commission on Implementation of the Constitution states that the Bill violates Article 261 of the constitution which lays out the procedure to be followed for the generation of legislations.
Duplication of Roles. It has been argued that the enactment of the bill will lead to creation of duties and roles that already exist and that are accounted for in the County Government Act. This in turn will create a need of funds to be allocated to enable performance of these functions, which is against the spirit of the constitution in Article 201(d), which calls for prudent and responsible use of public money.
The proposed bill is also in contravention of the Constitution especially in regard to the Article that makes provisions for Public Participation. This is particularly Article 10(a) which deals with the principles of good governance and that emphasize that public participation is an important national value. This is contrary to not only the constitution but also the County Governments Act, the Public Finance Management Act and the Intergovernmental Relations Act.
In regards to the Tug of War for power between the senators and Governors and specifically in regards to the issue of Devolution of powers between the two, governors have stated that the bill seeks to undermine not only their powers but also their participation in the county Budget making process.
In regards to funds, the Commission on Implementation of the Constitution has stated that the bill draws membership from the national and county governments. It has however not stated whether the aforementioned costs would be a charged of revenue allocated to the county government or the national government. It is evident that for any piece of legislation to be effective it should be clear and precise; a characteristic that is clearly lacking in the bill but that can be easily corrected and rectified through amendments.
The Bill has also been criticized for the composition of County Development board that violates the Constitution. The key issue here being the fact that the National government and County governments are distinct entities and the proposed composition of the County Development Boards abuses the mandate of the county Government in managing the affairs of the county. It also duplicates the role that has been set out for the County Government.
The Bill has also erred in proposing an amendment to the effect that county annual budgets should be adopted by the Boards before being tabled in the county assembly. The bill pays no regard to the fact that Budget issues are managed by the Public Finance Management Act. The Bill proposes a complete turnaround in regard to budget making process.
The said amendments should be made through amending the Public Finance Management Act which is the appropriate legislation. The County Budget process is clearly spelled out in the Public Finance Management Act and any proposed changes to the procedure cannot be brought by purporting to amend the county Governments Act. There is no doubt that the Bill has several errors that need to be acted on as soon as possible. However the Governors and Senators need to look beyond their unnecessary tussle for power and focus on the effect that the bill affects Kenyans. The Senate and Governors also need to establish ways in which they can co-operate within the bounds that still ensure that they act as distinct and separate entities.
One of the key rights and freedoms that have been promoted in line with achieving a free and democratic society where the rule of law is observed and upheld is the freedom of the Expression. In this regard, this freedom is directed mainly towards the press. The freedom of the press is a pivotal component of our individual development – as human beings and as "political animals" – to improve and radicalize democracies. Freedom of expression has long been regarded as a fundamental right, which also helps to defend other rights and freedoms. Despite petitions, lobbying and peaceful demonstrations by journalists in Kenya, the National Assembly passed what has been referred to as a 'draconian' Media Bill without making any amendments to controversial clauses identified by stakeholders. Journalists decried the legislation as an attempt to gag the media in an effort to deprive them of their Constitutional rights. The move to pass the bill means that under the Kenya Information and Communications Bill, which now awaits presidential assent, journalists as well as media houses will be subjected to the watch of a quasi-government body. Media houses will be fined a maximum of twenty million shillings if they contravene these provisions and journalists five hundred thousand shillings. Additionally, the President and the Cabinet Secretary for Information and Communication have been granted the final say in determining the people who would sit in the Communications Authority of Kenya and those to sit in the Communications and Multimedia Appeals Tribunal. These are the two major bodies that will manage the communications sector, regulate content, and punish journalists and media enterprises. The said Media bill and Kenya Information and Communications Bill (KICA) 2013 are expected to overhaul the media terrain and industry as a whole. The two bills shift the media from a self regulating body to a government controlled institution, meaning therefore that it is lacking the ever important aspect of independence. Criticism of the new laws arises from the powers given to the minister to dissolve the Media Council and the board of CCK and establish mechanisms for appointment of their successors. The same Minister would, under the new law, have the power to reject any proposed nominees and can instigate their dismissal. The Media Council (Amendment) Bill also gives the minister the power to amend the Code of Ethics for journalism. The Argument is that the Journalism profession should be controlled by professionals and these laws exclusively take these powers away from journalists as a profession. As a state gearing towards becoming a purely democratic society, it is important that the independence of the media is guaranteed under the new constitution. The freedom of the press is closely linked to the idea of democracy. Without freedom of the press then a democratic society does not exist in reality. Hence, mass media as an instrument for the exercising of freedom of speech and expression gains importance for a democratic society. Just like the other three arms of government, the principle of independence and non-interference of the press and media should also apply.
Initial introduction of the Value Added Tax (VAT) Bill 2013, which was expected to impose a 16 per cent levy on commodities, received a lot of opposition from Kenyans, including civil society groups and the Consumers Federation of Kenya (COFEK). However, despite the great opposition, it was passed into law on August 14, 2013 and took effect on September 2. As a result, the Kenyan consumer has been forced to tighten the belt due to the punitive tax rates which have seen the prices of basic commodities increase to unbelievable highs. Persistent lobbies from consumers questioning the constitutionality of the now VAT Act and appealing to the government have fallen on a deaf ear. The government dismissed the idea of further amendments to the new Value Added Tax law firmly stating that it will be implemented as it is and no more changes will be made to it. The Consumers Federation of Kenya (COFEK) Secretary General asserted that all the contentious issues requiring amendments had been fronted to the Parliament's Committee on Finance, Trade and Planning. He however inferred that there had been foul play as he alleged that The National Treasury, however, bribed the MPs out of any amendments by paying the Sh1.1 billion vehicle grants on the day the VAT bill was up for voting before the House. Numerous amendments that had been lined up were shelved under mysterious circumstances. Consequently, the prices of basic commodities like processed milk, newspapers and maize flour have been increased and the inflation rates are now a challenge to the country's economy. Article 43 of the Constitution provides that every person is entitled to the highest attainable standard of health, adequate food and social security. The state has the duty to ensure that these rights are made available. The prevailing fear is that the cost of living is expected to double in the coming months which will consequently increase the poverty levels in Kenya. It is a shame that some traders are already taking advantage of the situation and inflating the prices of products that are not listed to be taxed. The civil society groups are already having talks on the course of action in a bid to cushion the Kenyan taxpayer. Following the mixed interpretations of the VAT law, President Uhuru Kenyatta has directed the Treasury to publish regulations that will clarify the law; to prevent unscrupulous traders from taking advantage of Kenyans. He went ahead to explain that the VAT law is meant to simplify the tax regime, cushion the poor and increase revenues.
The recent tussle between the executive and the judiciary has once again brought up the question on the supremacy of the organs. The National Assembly had forwarded a petition to President Uhuru Kenyatta requesting him to suspend six members of the Judicial Service Commission (JSC) and institute a Tribunal that would investigate their conduct. The Commissioners who include Ahmednassir Abdulahi, Reverend Samuel Kobia, Emily Ominde , Hon. Justice Mohamed Prof. Christine Mango Warsame, and Florence Mwangangi had been accused of financial interference and obstructions of justice. The Commissioners were since suspended by the president and a Tribunal formed to investigate their conduct in accordance with the National Assembly. According to Article 251 of the Constitution violation of the Constitution and gross misconduct, among others, are listed as sufficient ground for the removal of a Commissioner from office. The same Article provides that the National Assembly shall receive any petition for the removal of a Commissioner from office and forward the same to the President if it discloses sufficient grounds for such removal. On receiving such a petition the President may suspend the member or office holder pending outcome of the complaint; and shall appoint a tribunal to investigate the same. The findings of such a tribunal are binding upon the President as he is required to act in accordance with its recommendations within thirty days.
However, The National Assembly recommendations were conversely defiant of High Court orders that were issued to block the Parliament from debating or initiating the removal of the six JSC members. Another order had been issued previously to preclude the Parliamentary Committee on the Administration of Justice from tabling its report on the six JSC members to Parliament. As a result the JSC made an application to court to challenge the legality of the President's decision. Upon hearing the application, the High Court reinstated the Commissioners and suspended the Tribunal, taking cognizance that the suspension of the Commissioners would interfere with the smooth administration of Justice. The Court deemed the President's actions null and of no effect as they were in violation of court orders. Article 171 of the Constitution establishes the Judicial Service Commission and mandates it to promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice. The Commission is tasked with the recruitment of judges and disciplining of Judiciary staff. Suspension of the six members meant that the JSC would function with only five members which is less than the required number to form quorum. The opponents of the move by the President had warned that lack of quorum would interfere with the efficient and effective functioning of the JSC; which would in turn slow down judicial reforms. A careful balance has to be enhanced between the Judiciary, Executive and the Legislature to ensure that the three arms execute their functions effectively and accountably without either overstepping the other in the conduct of their functions. The principle of Separation of Power of the Judiciary, Legislature and Executive needs to be upheld.
President Uhuru Kenyatta's Assent of the County Allocation of Revenue Bill was the first step in setting the stage for County Governments to receive funding and an important stage in aiding the process of Devolution which is a key part of the Constitution 2010. This action by President Kenyatta has been criticized and challenged by not only the Commission for the Implementation of the Constitution chaired by Mr. Charles Nyachae but also the Senate established in Article 93(1) of the Constitution and whose role has been set out in Article 96 of the Constitution of Kenya. The major challenges advanced towards the then Bill and now Act is the several cases of unconstitutionality from the contents of the Act to the Unconstitutionality in the legislative process that was followed from the legislative drafting to the process of Presidential Assent.
The first issue is that section 7(6) of the County Allocation of Revenue Act which states; "... Where the allocation of monies to a county results in a county being allocated an amount that is less than the amount commensurate to the cost of the functions devolved to the county, the national government shall allocate part of its share of revenue to provide the additional resources needed..."is contrary to Article 6(2) of the Constitution, which exclusively emphasizes that the National and County levels are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and co-operation. This Section is in contravention of Article 6(1) of the constitution. As it stands it defeats the essence of division of revenue between the two levels of government. There is a key issue of Constitutional Interpretation in regards to the same section 7(6) of the County Allocation of Revenue Act when read with Article 202(2) of the Constitution. Article 202 of the Constitution states that, '...County Governments may be given additional allocations from the National Government's share of the Revenue either conditionally or unconditionally...' Section 7(6) of the Act states that, '...where county Governments funds are inadequate the national government shall allocate part of its share of revenue to provide the additional resources needed. It is important to note the use of the words 'may' in the constitution and 'shall' in the Act. May negates an option while shall negates an obligation. It goes without saying that the Constitution is the supreme law of the Land and therefore it overrides the provision of the Act. However issues such as the intention of Parliament arise especially since one wonders whether Parliament was trying to make the provision mandatory.
Another issue of unconstitutionality arises from the process. The Senate was completely shut out from the Legislative process and their suggestions for amendments and recommendations were not considered. This was clearly unconstitutional considering that Article 94(1) of the constitution invests legislative power in Parliament which consists of both the National Assembly and the Senate. This is also in breach of the Constitution when you consider Article 96(2) which deals with the role of the senate as reads with articles 109-113 which deals with the legislative process and various types of bills. This however then brings out the issue of whether the said Act was a Bill concerning the County Government as provided for in Article 110(1) of the Constitution. The court in considering this will also pay regard to the fact that this was not a money bill and hence what are the legislative procedures regarding such bills that do not fall under the classification set out in Article 114(3) which deals with Money Bills but fall under the Classification set out in Article 218(1) (b) of the Constitution which made specific provisions for the formation of the County Allocation of Revenue Bill.
The court will be tasked with the duty to determine the following issues;
The role of the national Assembly vis-à-vis that of the senate in the creation, consideration and enactment of division of Revenue Bills
The Meaning of a Bill concerning County Government referred to in Article 110 of the Constitution
The power of the court in giving an opinion on constitutionality of the enactment process of an Act
The power of the Supreme Court to exercise its advisory mandate in giving an opinion on the Revenue Allocation Act Dispute.
The Provisions of section 7(6) of the Act go outside the framework established by the Constitution and the Public Finance Management Act which is an Act of Parliament to provide for the effective management of public finances by the National and County governments, the oversight responsibility of Parliament and county assemblies, the different responsibilities of government entities and other bodies, and for connected purposes. The case is set to be heard in court and the Attorney General has requested to be present during the proceeding to give input in regard to the case, which is a matter of great public interest.
