Improving Access to Justice

Abstract

This is the seventh quarterly report of the Commission for the Implementation of the Constitution since its establishment. It covers the period of July to September 2012. The mandate, specific functions and objects of the Commission as stipulated in the Constitution and the Commission for the Implementation of the Constitution Act, (CIC Act), is to monitor, facilitate and oversee the development of legislation and administrative procedures required to implement the Constitution; to coordinate with the Attorney-General and the Kenya Law Reform Commission KLRC) in preparing for tabling in Parliament the legislation required to implement the Constitution; and to report every three months to the Constitutional Implementation Oversight Committee on the progress and challenges faced in the implementation of the Constitution. Other functions of the Commission are to work with other constitutional commissions to ensure that the letter and spirit of the Constitution is respected, the sovereignty of the people of Kenya protected, observance by all State organs of the democratic values and principles is observed and constitutionalism is promoted. The Commission has defined six key result areas which guide its work on its mandate and provide the basis for accountability to other institutions and the people of Kenya. These result areas are: Result 1: A respected, well-functioning and independent Commission effectively delivering on its mandate. Result 2: Policies which are compliant with the letter and the spirit of the Constitution. Result 3: Laws which are compliant with the letter and the spirit of the Constitution. Result 4: Effective institutional frameworks and administrative procedures for the implementation of the Constitution. During the reporting period, the Commission worked on policies, legislation and regulations received from various Ministries as reported under the six key result areas. The Commission encouraged the generation of comprehensive policies to guide development of legislation. In this regard, the Commission received the Kenya Health Policy and a policy framework on Education and Training from Ministries of Health and Education respectively. The Commission received 20 Bills from various Ministries for review. Eight bills were reviewed and forwarded to the AG, including the three Family Law Bills, the Election Campaign Financing Bill, among others. At least six Bills were enacted into law. The Ratification of Treaties Bill went through the Third Reading in Parliament, while the Consumer Protection Bill, was introduced to Parliament as a private member’s Bill. The Commission also received advance copies of the Office of the Attorney- General Bill, the Office of the Director of Public Prosecutions Bill, the Contempt of Court Bill and the Magistrates’ Courts (Amendment) Bill. The Commission also audited the four devolution Acts to ensure they are not inconsistent with each other. The Commission also received a number of regulations including those related to elections, public service commission, the guide for implementing human rights, and transition to devolved government, among others. The Commission faced challenges including the curious urgency of the Executive to fast track and table Bills in parliament before the Commission had completed reviewing the Bills for consistency with the Constitution. The Leadership and Integrity Act, 2012, for example, did not reflect the input and recommendations given by the Commission and the public. In these circumstances, most of the draft Bills are under-researched and therefore incapable of facilitating effective implementation of the Constitution. Other challenges include the inordinate focus on developing legislation at the expense of the requisite policies, administrative procedures and institutional frameworks that form an enabling environment. During the reporting period only two policies were received in CIC, against over 20 Bills. To address some of these challenges, the Commission recommends increased public participation. In addition, Bills already reviewed by the Commission should not be amended unless completely necessary.