News 2008


Major task ahead for AG as Annan leaves

Daily Nation


02. March 2008

Chief mediator Kofi Annan leaves the country on Sunday as the task of transforming the historic Harambee House deal into law shifts to Attorney-General Amos Wako and Parliament.

Mr Annan, the man who for 41 days embodied Kenya’s hopes peace, leaves subsequent mediation efforts in the hands of former Nigerian foreign minister Oluyemi Adeniji.

The AG and four other lawyers, who are part of the Serena mediation process, will now draft the necessary Bills to amend the Constitution and accommodate the National Accord and Reconciliation Act 2008 signed on the steps of Harambee House into the country’s statute books.

Both PNU and ODM have scheduled meetings ahead of the opening of Parliament Thursday to marshal their troops behind the deal struck between President Kibaki and ODM leader Raila Odinga on Thursday, setting the stage for a major reorganisation of the government structure.

The five draftsmen are Mr Wako, Ugenya MP James Orengo, his Mbooni counterpart Mutula Kilonzo and the mediation team’s joint secretaries Karoli Omondi and Dr Gichira Kibaara.

The team will identify the sections of law that require amendment and how those that run counter to the Annan deal can be adapted to accommodate the new changes.

The team is expected to draft the necessary Bills in a manner that will require only minimum debate and publish them before the State opening of Parliament.

As the spotlight turned on the Wako team, representatives of the European Union and the African Union appealed to parliamentarians not to let Kenyans down but to ensure that the delicate process is completed.

After the signing of the accord, it is now necessary to amend certain sections of the Constitution to accommodate the establishment of the offices of prime minister and two deputies and define the character and functions of those offices.

The creation of the new posts is inconsistent with the current Constitution, hence the reason for the amendment. Lawyers who have scrutinised the agreement told the Sunday Nation that if enacted under the current charter, the Accord Agreement would be null and void.

It is expected that debate will start with the proposed changes to the Constitution before Parliament turns to those dealing with ordinary Acts of Parliament affected by the deal.

However, for the purposes of these Bills and the fact that the President has already convened the House earlier than anticipated, it is clear to every player that the two Bills are being given priority.

One would expect that after the presidential speech and debate on it, Parliament would move fast to ensure the Bills sail through their first, second and third readings.

Indeed, both parties plan to rally MPs to support implementation of the peace deal.

MPs belonging to the government coalition, which comprises PNU and ODM-K, meet in Nairobi on Sunday, in the words of Vice-President Kalonzo Musyoka, to “plead” for support to back changes agreed to in the accord as the ODM side meets on Wednesday.

Mr Odinga and President Kibaki have so far given assurances that they will give full support to the Bills to be passed as soon as possible.

The House’s first initiative, therefore, would be to pass the Constitutional Bill that would enable the provisions of the Accord to be constitutionalised in order to be consistent with the Constitution. Once the amendments are done, then Parliament can proceed to enact the Accord as an ordinary Act of Parliament.

A source privy to the process in Parliament confided to the Sunday Nation that in a constitutional Bill, unlike an ordinary Act of Parliament, the House needs a two-thirds majority to push it through. “Whenever debate on the constitutional Bill is on the floor of the House, the Speaker has to set out to the House and inform them of what is required. This is because if there are not two-thirds of MPs present or available during the debate, then it becomes an exercise in futility,” said the source.

Furthermore, before a Bill is debated, it must be published and before it is tabled in the House, there is a required 14-day period between the date it is published and the day it is tabled in the House.

The source said this requirement applies to any ordinary Act of Parliament as well as a constitutional amendment Bill. It is after the period that the Bills go through the same procedure of the first, second and third reading and, if passed, go for presidential assent.

The only exception is that an ordinary Bill requires a simple majority while one affecting the Constitution requires a two-thirds majority.

But the source hinted that the process could be hastened.

“There are situations where a resolution by the House can shorten the timings. It does not have to be the full 14 days, for example. Similarly, in one sitting, with the House’s resolution, a Bill can be dealt with from the first reading through to the third reading and passed,” said the source.

Traditionally when a Bill is read for the first time, Members of Parliament are given another sitting for consideration in the second reading. But if the timings are shortened, then the Bills would not be in the order paper.

The source explained: “It would not be normal to have a Bill appearing in the order paper, if it is a Bill indicating that it be considered in the first, second and third reading at any one sitting, normally done in different days.”

But bearing in mind the exceptional circumstances, according to the source, and with the resolution of the House, it can be done at one sitting and it is passed. Also, both Bills can be dealt with on the same day if there is not too much debate and there is unanimity and agreement.

The tricky part, however, is that constitutional Bills are never amended. They can only be passed as presented to the House or they are not allowed to see the light of the day. It is only ordinary Bills that can be amended in third reading so long as notice to the same effect is given.

This is because during the third reading there is usually debate and exchange before the committee of the whole House.

That is why it emerged on Saturday that the team charged with drafting the Bills is being extra careful so that the debate does not meet any problems like misplaced comas or words that might derail the process.

“They are consulting widely with the principals and all concerned,” another source privy to the progress told the Sunday Nation.

Another possibility the team might be exploring is the need to merge the two Bills into one.

“This is because the Bill would just be seeking to entrench the provisions in the Accord Agreement as a constitutional enactment instead of having two Bills. This is then formulated as part and parcel of the Constitution,” the source added. If they decide to have one Bill, it has to be a constitutional Bill.

A similar entrenchment creates other offices including the office of the Attorney-General, Judges of the High Court and Court of Appeal, Auditor-General, Commissioner of Police as well as the Speaker, together with their securities of tenure.

“This will save the time of discussing two Bills. It is being done fairly, first because the first business of the House is anticipated to be about the Accord. That means the Bills should be mature immediately after the Presidential Speech is debated. That means the team has to ensure the Bills are ready in the course of the week. They ought to be published any time by Tuesday or Wednesday,” the source confided to the Sunday Nation.

The Accord Agreement on a number of critical issues was signed after long negotiations characterised by strong stands from both sides; it took the intervention of the principals to prevent a possible deadlock.

“We believe by these steps we can together, in the spirit of partnership, bring peace and prosperity back to the people of Kenya who so richly deserve it,” Mr Annan announced with a sigh of relief after releasing the contents of the agreement.

The Accord creates a Prime Minister of the Government of Kenya, with authority to coordinate and supervise the execution of the functions and affairs of the Government of Kenya and two deputies.

Also the coalition government so created shall at all times take into account the principle of portfolio balance and will reflect their relative parliamentary strength.