UN expert on the human rights of internally displaced persons

Dr. Chaloka Beyani, the United Nations Special Rapporteur on the Human Rights of Internally Displaced Persons is currently visiting Kenya till 27 September 2011.

This come in the wake of the second round of confirmation hearings at the International Criminal Court
 http://www2.ohchr.org/english/issues/idp/index.htm

The Executive cannot interprete the Constitution.

The Executive has recently proposed amendments to the Constitution, i still wait for the draft Bill. But in the meantime, i have some thoughts.The role of the executive's basic role is to enforce the law including the constitution. The executive has usurped the role of the Judiciary by interpreting the constitution and concluding that elections should be held in December 2012, instead of August 2012 as clearly stated in the constitution. By suggesting December 2012 as the elections month, the executive has gone beyond the plain letter of the constitution.

In addittion the executive has read the constitution (as we all have) and concluded that the one-third gender rule cannot possibly be implemented. Recalling that the High Court recently ruled on this principle in the case of Federation of Women Lawyers (FIDA) and Others v Attorney General and Others. The court stated that parliament ought to be afforded time to enact legislation to enforce the principle.

The executive should therefore only act after the judiciary has conclusively ruled that elections must be held in December 2012 and that it is next to impossible to implement the one-third rule in Article 27.

Constitutional amendments at this stage are therefore unlawful and are not in the best interests of this country.

Should Parliament Amend the Constitution

In my recent post, i highlighted that it is possible for parliament as presently constituted to amend the constitution. We now explore the question whether parliament should indeed do so.

Prior to this we also need to establish in whose interests such an amendment is proposed. Who is the ultimate beneficiary? Who will celebrate? Will the process elicit the same enthusiasm Kenyans had on 4 & 27 August 2010. Did the drafters of our constitution, in the very least, expect the Constitution to be amended in one year.

Needless say, any proposed amendment is not in the best interests of this country. We  have one weapon, public participation. It is the shield with which we must stop any arrows of the adversary.

Can Parliament amend the Constitution?

It is reported that Parliament has approved a Constitutional Amendment Bill. Details are still scanty, but the question we need to answer is whether Parliament has the authority to amend the Constitution at this stage. This post is less concerned with the question whether Parliament should amend the constitution.

The constitution can only be amended Parliament, that is the National Assembly and Senate. According to the transitional clauses the current National Assembly has authority to act both as the National Assembly and the Senate. The proposed amendments will address Article 27, 81, 101 and 136 of the Constitution. Article 27 (of the Bill of Rights)  is the equal protection cause and therefore protected clause. This means that an amendment must be approved through a referendum. I estimate that it will be an uphill task to amend this constitution at this stage.

Of critical importance is the requirement that the public must be involved in the process. The Commission on Implementation of the Constitution (C.I.C) must be involved since we are still in the transition period. Kenyans must remain eternally vigilant and Parliament must know that we are watching keenly. The judiciary must be ready to interpret the letter of the law as it is, once called upon to do so.

My interim thoughts.