The immense powers that the Kenyan parliament has been hoarding to make the finale decisions on content of legislation in national laws may be clipped under the new constitutional dispensation as government lawyers want Members of Parliament barred from having the final word in the review of electoral boundaries.Since the Independent Electoral and Boundaries Commission (IEBC) published its finale lists of

 boundaries of constituencies and wards in the country, in preparation for the next general elections has since seen a rush to the courts.The large numbers of individuals and groups rushing to the courts under the influence of politicians from various parts of the country have a single mission - to block the commission’s published decisions on the boundaries from being executed.

 Their grievances are mainly hinged on the boundaries either cutting out or in certain sections of the wards or constituencies where mostly some politicians or groups have some interests – with those filing the cases accusing the IEBC of ignoring their views at the behest of the politicians who see their stakes as threatened.

However, government lawyers have already proposals for amendments to the legislation to give the country’s voters to send their MPs packing as well as senators, governors and county representatives as clearly stipulated by the Constitution of the Republic of Kenya 2010.

Indeed they have also pushed for the independence of constitutional like the IEBC, the Truth, Justice and Reconciliation Commission (TJRC) whose operations the legislators are accused of allegedly sabotaging by denying it financial lifeline, the National Cohesion and Integrity Commission (NCIC) among others.

The lawyers argue that the manner in which the legislators crafted the laws curbed the independence of these institutions yet they are guaranteed by the constitution of the land and also want them to be clear on the educational levels of individuals who are seeking for elective positions right from the wards to the national level.

The other matter is that the MPs should give up their struggles for self-preservation, that is according to the Kenya Law Reform Commission, particularly as far as crafting of the laws if they are going to produce legislation that strictly conforms to the constitution.

Recently the country witnessed the MPs pushing and passing the extension of the February 27^th, 2012 deadline to debate and pass critical legislation as stipulated by the constitution like the National Land Commission Bill, the Lands Bill, the Land registration Bill among others

 The Kenya Law Reform Commission (KLRC) last month issued a no nonsense brief to the then minister for Justice and constitutional affairs minister, Mutula kilonzo and the Parliamentary Committee for Justice And Legal affairs in which it had indentified more than 120 legislative blunders that the legislators had committed while approving laws to conform with the new constitutional requirements as the implementation process went into high gear.

Indeed the Kenya Law Reform Commission team that operates from the ministry of justice and constitutional affairs at Cooperative house on Haile Selassie Avenue has already put forward proposals for amendments to be made on the laws that have already been passed by parliament so that they can conform to the constitutional demands.

 What really angered the Commission is the fact that the legislators mischievously inserted clauses to force the IEBC to take into account whatever alterations or changes that parliament will fix in the electoral boundaries report which at that time was still being reviewed by the Justice and Legal Affairs Committee.

Apparently this backfired when they IEBC ignored the parliament’s demands and published the report and lists of the wards and constituencies including the new ones in total disregard of parliament’s clauses thus drawing anger from a big number of MPs – with resulting flurry to courts to stop the IEBC from implementing the published boundaries in some wards and constituencies in various parts of the country.

Perhaps this inevitably predictable as the KLRCC report said: “Where the MPs give any recommendations on the boundaries report, these can only be considered by the IEBC commission but they are not binding. Therefore MPs like all other people of Kenya shall in any event have an opportunity to challenge the report is provided in law.”

In one of our Usawa Newsletter late last year in a story titled: ‘Manipulating the Constitution’ we predicted some of the ways the country’s legislators were trying to manipulate The Constitution of the Republic of Kenya 2010 and particularly the 2012 general elections date to suit their personal political interests and not those of the nation.

This has since seen continuing protracted manipulations of the next general elections date as well as the Constitution in the ongoing implementation process whose success is strictly hinged on crafting and enacting large number legislations to conform to the Constitutional stipulations.

Perhaps one of the most glaring attempts to manipulate the Constitution is the Constitution Amendment Bill 2011 that was crafted by the immediate former minister for justice and constitutional affairs, Mr. Kilonzo that is yet to be debated by parliament.

It seeks to amend the Constitution over the general elections date and the two thirds gender parity representation in public elective positions as stipulated by the constitution that has generated a lot of opposition from the Kenyan public as opposed to the most political elites who are supporting proposed alterations.

In proposing an amendment which would guarantee of the IEBC commission as stipulated by the constitution clearly stated that the law as it is with clauses inserted by parliament before passing it was in essence an affront to the Constitution of Kenya.

The other critical law that the legislators played mischief with inserting clauses for their self-preservation is the Elections Act which gives the electorate powers to send their sitting elected leaders packing if they are perceived not to be performing – particularly the procedure of recalling those that are perceived to be non-performers.

As expected in this stringent legislation, the legislators had inserted into it amendments that blocked recall within a period of the first two years of being in office or the last one year, thus watering down the legislation giving the electorate powers to a limited period of two years within the five year period for every single term.

They had also conspired to delay possibilities of being recalled with exposing the petitions of being recalled to scrutiny by the law courts before a poll to send them packing could be executed by the electorate desiring it – according to the government lawyers, this state of affairs is un-constitutional.

The KLRC has declared: “Indeed it is the people’s right to initiate a recall election and if all the requirements are, the election must be held. The Constitution gives power to the electorate to be Able to initiate a recall election any time after the election of a Member of Parliament. As such a recall election cannot be limited to two of the five years term of the life on an MP in parliament.’

According to the KLRC team, the bottom line is the fact that sovereign power is vested in the hands of the people of the nation and due to the fact that the legislators are their representatives, they must deny those who chose them the opportunity to exercise their right to determine who they want to represent them in parliament.

While manipulating the law, the legislators contented that if the clause is not tightened up the people they perceived to be their opponents would ne perpetually on campaigns translating into an elections cycle throughout the five year term, with the other manipulative clause being that if they survived a recall election then they would serve all through the remaining years of the five year term.

According to the law, any contestant who is not successful of an election will be a member of the electorate like any other citizen, and as such, should be able to file an election (recall) petition. The KLRC report documents that that the fees fixed for recall at Kshs. 500, 000 should be done away with altogether because it rubbished the law to peg a constitutional right to some fees.

The other areas that the report strongly recommends to be amended in the Elections Act to delete the Kshs. 1 million fees that is recommended presidential elections petitions, Kshs. 500, 000 for election petitions against MPs and governors while county ward representatives Kshs. 100, 000 – and recommends that there should be amendments to give powers to the courts to decide the fees for these petitions.

The KLRC team argues that these charges would be too prohibitive to the ordinary Mwanchi and will be in violation of the Constitution’s Article 48 there is also the question of education qualifications that requires clear definition and amendments.