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By Mzalendo Contributor Moreen Majiwa (@mmajiwa)
The Proposed Constitution came into effect 14 days, after it was approved in the referendum. Section 25 (1) of the sixth schedule of the constitution requires parliament to constitute the Commission on the Implementation of the Constitution and the Commission on Revenue Allocation within ninety days of the commencement of the constitution. The end of the 90-day deadline is 27th November 2010. In other words Parliament has less than 20 days left to implement this part of the constitution.
On Monday this week all 222 MPs met at a two-day retreat to discuss their strategy on implementation of the constitution to ensure that enabling legislation is enacted within the time frames allotted in schedule 5 of the new constitution. Needless to say the establishment of the Commission on Implementation of the Constitution for which jobs have already been advertised, and the establishment of the less known Revenue Allocation Commission are at the top of their agenda.
The importance of Commission on the Implementation of the Constitution in seeing smooth and timely implementaton process cannot be over emphasized. According to Article 261 the Commission on the Implementation of the Constitution in consultation with the Attorney General is the body charged with preparing the Bills for tabling before Parliament.
The Commission on Revenue Allocation will determine the allocation of funds to county governments and is vital for the transition to the devolved system of government. Each commission will consist of 9 members nominated by various bodies and through varying process one wonders whether this can be done on or before 27th November.
Minister for Justice and Constitutional Affairs Mutula Kilonzo has warned that the constitutional implemenation has already fallen behind and could face further delays unless swift action is taken. The Justice Minister proposed the tabling of an omnibus bill the would see the creation of all commissions in one go. Parliament is well within its right to pass such a bill as Article 261 (1) allows Parliament to enact any legislation required to meet the timelines outlined in Schedule 5 of the new constitution. However given the relectance of Parliament to table any implementation bills before the Comission on Implementation Constitution is formed may hinder the passage of such a bill.
What happens if these deadlines are not met? Article 261 (2) allows Parliament to extend the deadlines for enactment of enabling legislation by one year through a resolution supported by and at least two thirds of the members of the National Assembly. However, the deadline can only be extended once and only under exceptional circumstances which have to be certified as exceptional by the Speaker of the House. If Parliament fails to pass the required law within the extended time period, anyone can complain to the High Court. The Court will then direct an order to Parliament to ensure it takes steps to pass the required laws within a stipulated time period and make regular progress reports to the Chief Justice. If Parliament fails to follow the court’s orders, the Chief Justice will advise the President to dissolve Parliament and the President must do so– Article 261 (7).
If there ever was a strong incentive to meet the deadlines set out in the constitution Article 261 (7) is it - we suspect MPs will not be interested in dissolution.
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