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PRESS RELEASE

For Immediate release;
21
st
October 2014


CIC SEEKS CONSERVATORY ORDERS ON PARLIAMENTS MOVE
The Commission for implementation of the Constitution is established with
the mandate inter alia, of ensuring that the Constitution of Kenya is
faithfully implemented and, along with other Chapter 15 Commissions and
Independent Offices, to promote constitutionalism and ensure that all State
organs observe democratic values and principles.
In exercise of our mandate under Section 5(6) of the Six Schedule and
Article 249 (1) of the Constitution which obligates CIC to protect the
sovereignty of the people, secure the observance by all State organs of
democratic values and principles, and to promote constitutionalism, CIC
has this morning instituted legal proceedings under certificate of urgency,
seeking conservatory orders on the recent move by the National Assembly
to review its standing orders and unilaterally introduce a process through
which Cabinet Secretaries are to routinely appear before it to answer
questions from Members of Parliament.
CIC, in carrying out its constitutional mandate had advised Parliament
through an advisory ( 2
nd
October 2014) against this unconstitutional move
and clearly stated that the proposed actions of requiring the Cabinet
Secretaries to attend the house every Tuesday to answer questions is
unconstitutional .
In the letter, we advised parliament that the newly created Committee of
General Oversight, consisting of all members of the National Assembly, is a
form of poor governance as its members would essentially be similar to
those of a normal Parliamentary proceeding, thereby, making reporting
structures unclear. In addition, the newly proposed reporting structure is
likely to lead to a duplication of roles of existing Committees, thereby
resulting in inefficiency in the use of the time of both the Executive and
Parliament and may come with attendant wastage of public resources,
which include time for service delivery.
Despite this advice, parliament, last week, being fully aware that the new
requirement for Cabinet Secretaries to appear before the National
Assembly every Tuesday creates new obligations on the executive and the
respective Cabinet Secretaries, went ahead and carried it out unilaterally
and without any notice, consultation and/or participation by the affected
arm of government and/or the Cabinet Secretaries or the public in utter
violation of Article 47 and 118 of the Constitution.
Besides ignoring the advisory, Parliament even declined to respond
constructively to issues raised by CIC regarding the above matter. Whereas
we have noted that the Executive and the Assembly have been undertaking
discussions to reach an amicable settlement on this matter, we have noted
from media reports that the House Speaker has insisted that the Cabinet
Secretaries shall still be required to appear before the House General
Oversight Committee from the 28
th
of October 2014.
As CIC therefore, in a bid to promote constitutionalism and ensure that all
State organs observe democratic values and principles, through our
lawyers Prof. Albert Mumma and Co. Advocates, we seek High Court
constitutional interpretation and determination of the following
constitutional issues:
Whether the National Assembly can through amending its own
internal procedural rules, i.e. Standing Orders proceed to circumvent
the provisions of Article 153(3) of the Constitution by converting
itself into an omnibus committee called Committee of General
Oversight for purposes of reintroducing Question Time.

The proper meaning and scope of the term committee as used in
Articles 124, 125 and 153 of the Constitution?

Whether the provisions of Article 95, 125 and 153 of the Constitution
as presently drafted create an obligation on the Cabinet Secretaries to
routinely attend the National Assembly plenary sessions every
Tuesday to answer members questions.

Whether the National Assembly can lawfully unilaterally review its
Standing Orders to create fresh obligations on the members of the
Executive without any consultation and/or affording them any
hearing on the proposed new obligations.
Whether the Respondents actions to unilaterally review its own
internal rules of procedure , i.e. its Standing Orders and create an
obligation on Cabinet Secretaries to appear before it every Tuesday to
answer its members questions falls within the letter and spirit of the
Constitution of Kenya 2010.

The true meaning and scope of the term full and regular reports as
required under Article 153(4)(b) of the Constitution

Whether the National Assembly actions violate the doctrine of good
governance and separation of powers as provided by the
Constitution.

It is CICs view that in unilaterally reviewing its standing orders to come
up with requirements to have the Cabinet Secretaries attend the National
Assembly plenary every Tuesday, the National Assembly deliberately and
intentionally engaged in a self-serving process designed to circumvent and
contravene the express provisions of Article 153(3) of the Constitution.
Further, CIC avers that Article 153(3) of the Constitution expressly requires
a Cabinet Secretary to appear before a committee of the National
Assembly, or the Senate, when required by the committee, and answer any
question concerning a matter for which the Cabinet Secretary is
responsible, the same does not provide for the routine appearance of the
Cabinet Secretary to the plenary of the National Assembly with the
intention of answering questions from the Members of Parliament.
This action by Parliament if allowed will directly affect the operations of
the Executive arm of the Government as its members, being the Cabinet
Secretaries will be mandatorily required to appear in the National
Assembly on a weekly basis thus denying them the opportunity to
effectively attend to their duties and obligations as set out in the
Constitution.
As CIC , we further advise that the plenary oriented question time
having been expressly abolished by the new Constitution cannot be
reintroduced through an amendment to Parliamentary Standing Orders,
therefore to purport to do so is unconstitutional and irregular and is
designed to defeat the letter and spirit of the Constitution.
The re-introduction of the question time in the manner proposed by the
National Assembly is further and clearly designed to defeat the separation
of powers between the three State organs as set out in Article 1(3) of the
Constitution and to make the Cabinet Secretaries accountable to the
National Assembly in violation of Article 153(2) of the Constitution which
expressly makes the Cabinet Secretaries accountable individually and
collectively to the President as the leader of the Executive arm of
government.
The current Constitution, in organizing the structure of government, unlike
our previous constitution, intended to separate the work of the Executive
from the Legislature to the fullest extent possible. The proposed
arrangement akin to the traditional question time, allows the Executive
to participate in the business of the House albeit in an indirect manner.

As CIC, we have advised that this arrangement is inefficient and unduly
interferes with the workings of the executive and the Cabinet in particular.
This is especially so as it is almost certain that Senate may create a similar
arrangement and require the Cabinet Secretaries to appear before it in a
similar manner.
We have also advised that if the principle of the proposed procedure is
accepted, nothing stops both Houses from requiring Cabinet Secretaries to
appear before their respective Committees of General Oversight as
frequently as daily before both Houses, thereby completely negating the
intentions of the Constitution which included freeing Cabinet to carry out
executive responsibilities.
While we await the decision of the court on our application, we once again
call on all Kenyans to jealously guard the Constitution and reject any
attempts by any state organ to undermine it. On our part we shall continue
to do all in our power to ensure the faithful compliance with and
implementation of the Constitution.


CHARLES A NYACHAE
CHAIRPERSON