GAZETTE NOTICE NO. 2054

under the auspices of the Office of the Head of the Civil Service, the Process Circular for Implementing Agencies. The circular not only serves as a basis of engagement between CIC and the ministries in the constitutional implementation but also enhances CIC‘s monitoring role based on reports received from ministries on their implementation status particularly with regards to the review of laws, policies and administrative procedures. These reports are an important monitoring and evaluation tool. One of the hallmark events of this quarter was the successful hosting of the 1st Annual National Constitution Implementation Conference, in conjunction with the Ministry of Justice, National Cohesion and Constitutional Affairs. The high-level conference brought together policy leaders from the government and the non-state sector to galvanize the nation to focus on timely and full implementation of the Constitution. The conference was also attended by representatives from counties. There are plans to also have similar conferences in counties to ensure that a greater percentage of people of Kenya are reached. Further to the discharge of the CIC mandate of monitoring Constitutional implementation in line with Article 249 requirements of rule of law and constitutionalism, CIC was vigilant on actions and omissions by implementers. Violations of the Constitution were flagged out to the concerned parties directly and, in cases of public interest, to the public through publication of the legal advisories in the print media and issuance of press statements. Most notable of the violations is the delayed release of budget estimates and the continued holding of office in political parties by appointed state officers, in violation of Article 210 and 77(2) of the Constitution, respectively. Additionally, where CIC felt the need for judicial intervention to clear questions of the interpretation of the Constitution, it did not hesitate to move to court in search of the jurisprudence of such provisions and their interpretation. For instance, CIC filed a request for an Advisory Opinion seeking the Supreme Court‘s opinion on several questions relating to appointments to Constitutional offices and commissions and the relationship between the Sixth Schedule of the Constitution and appointments to Constitutional offices. CIC also enjoined the case requesting for the construction, interpretation and determination of the actual date of the next general elections. CIC encountered a number of challenges in the first quarter as it set out to discharge its mandate; some of the challenges have been progressively addressed, but some of them remain and, like the sword of Damocles, threaten to derail the implementation process. The continuous wrangles resulting in the disbandment of the Justice and Legal Affairs Committee delayed the enactment of bills as well as the engagement of Supreme Court Judges. Action by the Speaker to confer the duties of the disbanded committee on the Constitution Implementation Oversight Committee was timely. Constitutional building as well as constitutionalism requires positive reaction and response from every citizen. The absence of good values from the citizenry and government officials is a significant challenge to the implementation process. CIC acknowledges the efforts made by the executive, the judiciary and the legislature to keep the implementation process on course. CIC also wishes to thank development partners for financial and technical support, which has seen CIC achieve the milestones reported herein. Non-state actors, other implementation partners, stakeholders and members of the public were instrumental and supportive for the 17th February, 2012 THE KENYA GAZETTE 483 implementation process. The commissioners and staff of CIC are the backbone of the work of the CIC and without whose commitment and hard efforts the implementation process would not be where it is today. The next quarter will see more results as other requisite legislation is enacted and CIC strengthens its Secretariat to enhance efficiency. Once again I wish to state that CIC is accessible to the people of Kenya and undertakes to remain open to public scrutiny. CIC calls upon Kenyans to appreciate their role in constitutional implementation and thus continues to encourage Kenyans to read and internalize the Constitution and remain vigilant by using the Constitution as the basis to monitor the implementation process to ensure that the letter and spirit of the Constitution is upheld, protected and defended at all levels and at all times. Charles Nyachae Chairperson EXECUTIVE SUMMARY Ten months following the promulgation of the Constitution, the Commission for the Implementation of the Constitution (CIC) has successfully undertaken numerous activities towards constitutional implementation. In exercising its mandate, CIC underscores the emphasis that the Constitution of Kenya 2010 places on the national values and principles of governance set out in Article 10 of the Constitution, including transparency, accountability and inclusiveness of the people, in the exercise of the powers of the state and in decision- making on issues affecting the people. In the spirit of constitutionalism and in accordance with the statutory requirement to report regularly to Parliament, and by extension to the public, as provided for in Section 6(c) of the Sixth Schedule to the Constitution and Section 4 (d) of the Commission for the Implementation of the Constitution Act, CIC has prepared its second quarterly report for the period between April and June 2011. The report gives an account of the experiences of CIC in the realization of its facilitative, monitoring and constitution-implementation oversight role. Through this report, CIC seeks to create an avenue for engagement and consultation, with the public and all stakeholders, on the progress of, impediments to and achievements in the implementation of Constitution. The second quarterly report also serves as a scorecard for the public to determine how effective CIC has been in executing its mandate and functions during the period between April and June 2011. During this second quarter, CIC interpreted its mandate and determined its operational vision, mission, and strategic outcome results that should determine delivery of its mandate. Although it is yet to undertake full strategic planning, CIC is resolute to work towards effective realization of its mandate, through feeding into four key outcome results:  A respected, well-functioning and independent commission effectively delivering on its mandate.  A policy framework that is compliant with the letter and spirit of the Constitution.  A legal framework that is compliant with the letter and spirit of the Constitution.  Effective institutional frameworks and administrative procedures for the implementation of the Constitution. CIC made significant progress in strengthening its working relations with partner institutions for effective constitutional implementation. In this regard, through the Office of the Head of Civil Service, CIC finalized and disseminated the Process Circular for Implementers, and, with its partners, developed timelines for implementing key legislation by 30th August 2011. CIC also advised on the review of recruitment policies and procedures for the National Police Service. Policy provisions, which were flagged out for correction before the recruitment exercise, include issues which would have amounted to violations of the principle of equality and non-discrimination contrary to Article 27 of the Constitution. Further, CIC held stakeholders‘ consultations with key implementing partners including state actors, civil society organizations, international development partners and members of the public on their role as implementers. At the same time, CIC had several achievements including the review of laws among other issues. CIC facilitated the enactment of the Supreme Court Act 2011 into law during the second quarter. Bills passed by Parliament and currently awaiting presidential assent include the Independent Electoral and Boundaries Commission Bill, the Salaries and Remuneration Commission Bill, and the Independent Office Bill. In addition the bills forwarded by CIC and waiting for approval by the Cabinet include the Kenya Human Rights Commission Bill, the National Gender and Equality Commission Bill, the Commission on Administrative Justice Bill, and the Political Parties Bill. CIC has finalized and forwarded bills to the Attorney-General for publication; these include the National Police Service Commission Bill, the National Police Service Bill, and the Independent Policing Oversight Authority Bill.. As part of its mandate, to work with constitutional commissions to ensure that the letter and spirit of the constitution is respected, CIC held meetings with the Commission on Revenue Allocation on the areas of engagement such as the Public Finance Management Bill, which is essential to the success of the workings of the Commission on Revenue Allocation. With a backlog of laws to be enacted, CIC has continued to pay particular attention to ensuring that the bills set out in the Fifth Schedule to the Constitution are finalized and enacted within the set timeframe. What is more, during the next quarter, CIC is scheduled to hold county visits, and take part in capacity building and civic education forums on thematic issues, such as public participation, human rights, devolution and public finance, for CIC commissioners and staff as well as implementers of the Constitution. CIC‘s process of executing its mandate has not been without challenges, which impacted on its effectiveness. These include resistance to change and an inclination to operate with a business-as- usual attitude, impunity by some government ministries, a lack of consensus by stakeholders on the content of bills forwarded to CIC, a lack of understanding of the constitution-implementation process at all the levels of government ministries, an apparent reluctance by technocrats to implement the Constitution in their particular sectors, a lack of awareness of the Constitution-implementation process, belated submission of bills to CIC, and poor drafting of bills. In addition, CIC‘s administrative operations have been hampered the following challenges: Weak liaison processes with the Ministry of Justice, National Cohesion and Constitutional Affairs, lack of a status update on CIC‘s expenditure and low staffing levels. CIC also encountered impediments, which are likely to continue to affect its work into the next quarter. These include: selective reading and misinterpretation of provisions of the Constitution by implementing agencies, deliberate misinformation to members of the public by some members of both the Executive and the Legislature, a lack of guidance from the Office of the Attorney-General in the process of implementation of the Constitution, political risk, and the increasing trend by the Executive and some members of the Legislature to create grey areas regarding the interpretation of the Constitution. All these have the unfortunate propensity to create confusion and to delay the implementation of provisions of the Constitution. Despite all these challenges and impediments, CIC is pleased with its achievements during the quarter. As a result of these challenges and impediments, however, CIC makes a number of legal, administrative, policy, and financial recommendations in the last chapter of this report, which CIC hopes the government and other stakeholders will take on board in support of the implementation of the Constitution. The recommendations include the following: Political leaders and the Executive should demonstrate stewardship to facilitate the smooth implementation of the Constitution, constitutional references relating to the implementation of the Constitution should be fast-tracked to avoid abuse resulting in impeding the implementation of the Constitution, targeted civic education should be rolled out by implementing agencies, existing legislation and administrative procedures should be revised by ministries to align them with the Constitution, implementing agencies need to adopt a systematic and integrated approach in their agencies to involve all their staff and to prioritise the implementation of the Constitution in their work, and implementing agencies should ensure involvement of CIC at the earliest opportunity in the review of their policies and administrative procedures to ensure that the focus remains on the bills and the national interest. 1. INTRODUCTION Six months since the Commission for the Implementation of the Constitution (CIC) was established and its commissioners sworn in, THE KENYA GAZETTE 17th February, 2012 484 484 the process of implementing the Constitution of Kenya 2010 is well under way and about to reach the critical milestone of the first year of its implementation. As required by the CIC Act, CIC takes this opportunity to make its second quarterly report to the people of Kenya. The report takes off from where the first quarterly report left off on 30th March 2011 and charts the next three month journey of the implementation of the Constitution up to 30th June 2011 from the perspective of the CIC in the exercise of its mandate. CIC‘s mandate of monitoring, facilitating, coordinating and overseeing the development of legislation and administrative procedures in the implementation process aims to ensure that genuine participation by the people of Kenya takes place at every stage of the implementation process; policies, sessional papers, laws and administrative procedures amended or developed are technically sound and are in line with the letter and spirit of the Constitution; service delivery and application of the policies, laws and administrative procedures are in line with the national values and principles as set out in Article 10 of the Constitution. The report is divided into five main parts.  The first part discusses the CIC mandate in relation to the process of the implementation of the Constitution.  The second part expounds on the exercise of the CIC mandate with regard to the development of legislation and administrative procedures in each of the eight thematic areas that CIC has established.  The third part is divided into two sections. The first section sets out the activities at a thematic level that CIC undertook between April and June 2011, while the second section shows the progress of various government ministries and agencies in implementing the Constitution.  The fourth part sets out the challenges in and impediments to the implementation of the Constitution. CIC expects these shall be addressed to ensure that the implementation of the Constitution is not thrown off track and delayed. This part also sets out the key recommendations that should inform future interventions to safeguard the implementation process; the recommendations arise from the work of CIC during the second quarter. 2. THE COMMISSION FOR THE IMPLEMENTATION OF THE CONSTITUTION 2.1 The Mandate and Role of CIC The mandate of CIC is to: (e) Monitor, facilitate and oversee the development of legislation and administrative procedures required to implement the Constitution; (f) Coordinate with the Attorney-General and the Kenya Law Reform Commission in preparing for tabling in Parliament, the legislation required to implement the Constitution; (g) Report regularly to the Constitutional Implementation Oversight Committee on: (iii) the progress in the implementation of the Constitution; and (iv) any impediments to this implementation. (h) Work with each constitutional commission to ensure that the letter and spirit of this Constitution is respected. As a constitutional commission, the CIC mandate is amplified in Article 249 of the Constitution along these lines: (a) Protect the sovereignty of the people (b) Secure the observance by all state organs of the democratic values and principles (c) Promote constitutionalism Delivering on its mandate, CIC is subject only to the Constitution and the law. On this basis, CIC performs its functions by ensuring that it is accountable to the Kenyan people, upholding the principle of public participation and securing the observance of all state organs of the values and principles without fear or favour. CIC guards its independence zealously and is not subject to direction or control by any person or authority. This independence is particularly important because it empowers CIC to constantly monitor any violation of the Constitution and administrative procedures by all actors including the Judiciary, Parliament, and the Executive. Overall, the fulfilment of the CIC‘s mandate is guided by the national values and principles as stipulated in Article 10 and other articles of the Constitution. With regard specifically to the implementation of devolved government, the Constitution says in Section 15 (2) (d) of the Fifth schedule, that Parliament shall by legislation provide mechanisms that ensure that the Commission for the Implementation of the Constitution can perform its role in monitoring the implementation of the system of devolved government effectively. This provision emphasises the centrality of devolution to the successful implementation of the Constitution. The country has through the Constitution of Kenya 2010 adopted a devolved system of government. One of CIC‘s functions therefore is to see to it that devolution is successfully implemented. All functions, whether allocated to the national government or the county government, will take place or be performed at the county level. In discussing any legislation for example CIC considers it absolutely necessary to establish how the legislation will effect and be affected by the functions at the county level. Similarly, when discussing functions CIC always emphasises the impact of such functions at the county level. CIC is yet to undertake full strategic planning, but it has interpreted its mandate and determined an operational vision and mission and strategic outcome results that should determine delivery on its mandate. The outcome result areas are geared towards laying down relevant policy and legal and administrative systems to ensure the required firm foundation for the full implementation of the Constitution. It takes into account that CIC is not a long-term institution and should at the end of its term have worked with all key implementers in establishing this foundation. Vision and Mission The vision of CIC is: A united, peaceful and prosperous Kenya in which all citizens including leaders respect the rule of law, uphold national values and live by the Constitution. Its mission is: To ensure that policies, laws, structures, systems and administrative procedures developed and applied at all levels are consistent with and according to the letter and spirit of the Constitution of Kenya. 2.2. Strategic Outcome Results CIC has organized its administrative and programmatic operations to feed into four key results areas at the outcome level: Outcome Result 1 A respected, well-functioning and independent Commission effectively delivering on its mandate Outcome Result 2 Policies which are compliant with the letter and the spirit of the Constitution Outcome Result 3 Laws which are compliant with the letter and the spirit of the Constitution Outcome Result 4 Effective institutional frameworks and administrative procedures for the implementation of the Constitution CIC is and will continue undertaking various activities to deliver numerous outputs that will collectively contribute to the achievement of the four outcome results. To this end, the results are to be attained through a design of its activities into eight thematic areas that are drawn from the subject matter in the different chapters of the Constitution but that inter-relate and sometimes cross-cut: 1. Bill of Rights and Citizenship. 2. Public Service and Leadership. 3. Judiciary and Constitutional Commissions. 4. Devolved Government. 5. Public Finance. 6. Land and Environment. 7. Executive and Security. 8. Representation of the People and the Legislature. 2.3. Role of Implementers CIC notes that the Constitution will only be fully be implemented if constitutional implementers in the various arms of the government set the systems right in their sectors and prepare their personnel to adapt to a culture of constitutionalism. It is in this regard that the CIC, working in consultation with implementers and stakeholders in different sectors is developing modalities of work for effective 17th February, 2012 THE KENYA GAZETTE 485 implementation and facilitating key activities to be undertaken at different levels by individuals and institutions. Working in consultation with the executive as the primary implementing arm of the government, CIC has released a circular that gives a clear roadmap to implementers to guide them on what needs to be done to ensure that the implementation of the Constitution is effected. The circular has been issued to all ministries and public institutions. In summary the circular requires: (a) The need to internalise the provisions of the Constitution in general and, in particular, with respect to the provisions relevant to the sector or institution in question. (b) The need to review or audit existing sessional papers, policies, laws, and administrative procedures against the Constitution to identify any gaps or review needs or both. (c) The need to develop any new laws, new policies and administrative procedures required to implement the Constitution. (d) The need to put in place structures necessary to effect the Constitution especially the devolved government. These requirements will also apply to the implementation of the Constitution, one, at the devolved governance levels, two, at the parliamentary level to take into account the new structure of two houses, and, three, with the Judiciary and even with the independent constitutional commissions. 2.4. Implementation in the Context of the Mandate of CIC The implementation of the Constitution with regard to the mandate of the CIC involves: (a) Developing new laws, new policies and administrative procedures required to implement the Constitution. (b) Reviewing existing laws, policies, administrative procedures and legislation required to implement the Constitution. (c) Putting in place structures necessary to effect the Constitution especially in relation to the devolved government. (d) Ensuring the participation by the people of Kenya in the review process; the Constitution provides that all power belongs to the people of the Republic of Kenya, and the people shall determine how they wish to be governed at the national level and at the county level (Articles 1, 10, 118, 232 of the Constitution). (e) Ensuring that where new laws are developed or existing ones are amended, or both are done, the new laws and the policies which informed their development should be forwarded to the Attorney-General/the Kenya Law Reform Commission and CIC. (f) Ensuring that the legislative process adheres to the provisions of Article 261 of the Constitution on consequential provisions. (g) Coordinating with the Attorney-General/the Kenya Law Reform Commission in drafting bills in coordination with originating institutions. (h) Coordinating with the Attorney-General/the Kenya Law Reform Commission, the Constitution Implementation Oversight Committee and parliamentary committees to ensure timely passage of bills in Parliament. (i) Coordinating development of change-management strategies. (j) Monitoring effective implementation of the Constitution in devolved units of governance. (k) The implementation of the devolved government would require: i) The development of standing orders to guide debate in the county assembly and senate. The standing orders must be consistent with the Constitution and legislation on the devolved government. While CIC will not develop the standing orders, it will review the standing orders that will have been developed ii) A review of existing parliamentary standing orders to bring them in line with the new Constitution. iii) The bills to have been passed by Parliament and assented to by the President. Performing its functions, CIC is bound by national values and principles of governance laid out in Article 10(2) of the Constitution. The national values and principles of governance bind all state organs, state officers, public officers and all persons whenever any of them applies or interprets the Constitution, enacts, applies or interprets any law or makes or implements public policy decisions. 3. ACTIVITIES IMPLEMENTED DURING THE SECOND QUARTER 3.1 Commission for the Implementation of the Constitution: Activities by each Thematic Area 3.1.1 Public Service and Leadership Thematic Area  Introductory Remarks Under Chapter Six and Chapter Thirteen, the Constitution ably provides for matters of public service and leadership. Under Article 232, the Constitution elaborately emphasizes on principles and values of public service that must be adhered to by state organs in the two tiers of government, State corporations and agencies, and all commissions established under the Constitution. It is apparent that successful governance must have at its core a set of principles and values that are enduring and relevant to the people. Strategies and tactics may change, but principles and values are anchors that give the government a firm footing even in uncertain or turbulent times. To that end, CIC recognizes the importance of principles and values enshrined in the Constitution in its quest to entrench constitutionalism in the people of Kenya and state organs. During the period under review, CIC undertook a number of activities under the rubric ―Public Service and Leadership‖ thematic area that are summarised under three headings: achievements, challenges, and planned activities for the next quarter.  Achievements i) Internal Review of the Ethics and Anti-Corruption Bill CIC undertook internal review of the Ethics and Anti-Corruption Bill, 2011, and held various consultative fora with the civil society, county representatives and state agencies among other relevant stakeholders that are involved in enforcing laws relating to corruption. The consultations identified several contentious issues that require further consultation and redress before the finalization of the bill. CIC convened a technical meeting with the Ministry of Justice, National Cohesion and Constitutional Affairs and the Kenya Law Reform Commission on 15th June 2011. The objective of the meeting was to discuss how best the Ethics and Anti-corruption Bill would address contentious issues. The thematic team subsequently held a retreat on 23rd-24th June 2011 to finalize the draft EAC Bill and roundtable with the Kenya Law Reform Commission and the Attorney-General to sign off the bill and submit it to the Attorney- General for publication and transmission to Parliament. ii) Consultant Engaged to Review the Ethics and Anti- Corruption Bill Enforcement of Chapter Six is critical to the Constitution as it forms the basis on which the principles and values enshrined in the Constitution shall be enforced and guaranteed. The commission envisaged under Article 79 and Article 80 of the Constitution is very significant in enforcing the principles of leadership and integrity and the values provided for in the Constitution. To ensure the development of effective legislation CIC engaged an international consultant to undertake a critical analysis of constitutional provisions for principles and values, including ethics, leadership, and integrity, and tasked to analyze the applicability of the Box 1 Constitutional Values and Principles 1. Patriotism, national unity, sharing and devolution of power, the rule of law, democracy, and participation of the people 2. Human dignity, equity, social justice, inclusiveness, equality, human rights, non- discrimination, and protection of the marginalised 3. Good governance, integrity, transparency, and accountability 4. Sustainable development THE KENYA GAZETTE 17th February, 2012 486 486 bill and its effectiveness. The reports generated by the consultant and stakeholders have since been incorporated into the bill. iii) Consultants Engaged for Review of the Draft Public Service Bill CIC engaged a consultant to review the Public Service Bill, 2011 to check its conformity with Chapter Thirteen of the Constitution. The Public Service Commission bill is still a working document and CIC is working with the Ministry of State for Public Service and the Public Service Commission to develop the bill. iv) Consultation with the Kenya Institute of Administration CIC held a meeting with the Kenya Institute of Administration to discuss how its policies and procedures can be streamlined to ensure compliance with the Constitution. v) Consultation with the Office of the Prime Minister The Office of the Prime Minister is responsible for the coordination and supervision of the execution of the functions and affairs of the government. Among other duties, the Prime Minister is specifically in charge of public service reforms, performance contracting, the Efficiency Monitoring Unit, and the Inspectorate of State Corporations. Guidance and drive from the Office of the Prime Minister is therefore crucial on public service reforms, especially on the compliance with the Constitution. Bearing this in mind, CIC held a meeting with the Office of the Prime Minister with a view to understand the efforts the office has made to ensure that existing and anticipated public service laws, procedures and policies comply with the letter and spirit of the Constitution. vi) Police recruitment The success of the recently held police recruitment is also a major achievement for CIC. The scheduled recruitment process was postponed in order to allow for a review of the police recruitment policy a process which was undertaken by the CIC to ensure compliance with the letter and spirit of the Constitution. This resulted in the implementation of administrative procedures which were compliant with the provisions of the Constitution. CIC with the support of Usalama Forum and UNIFEM, as observers, attended the recruitment exercise in all the 47 counties. The purpose of this was to ensure that recruits realized their constitutional rights.  Challenges Among the challenges encountered are that discussions of the Ethics and Anti-Corruption Bill raised various contentious issues that need to be resolved before the bill is finalized. The issues include whether the Ethics and Anti-Corruption Bill should have prosecutorial powers, whether the envisaged commissions‘ mandate should be extended to the private sector, whether the transition provisions comply with the requirements of a Chapter 15 on commissions and whether there is need to develop legislation on leadership.  Planned Activities for the Next Quarter The thematic area has plans to undertake these activities during the next quarter: i) Commence working on a CIC tool for results-based management to ensure all the implementing agencies implement the Constitution within agreed timelines. ii) Review the agreed draft Public Service Commission Bill. 3.1.2 Bill of Rights and Citizenship Thematic Area Box 2 ―The bill of rights is an integral part of Kenya‘s democratic state and is the framework for social, economic and cultural policies.‖ Article 19(1) of the Constitution‖  Introductory Remarks As indicated in the report of the first quarter, the Constitution is anchored on human rights principles, which are reinforced in nearly all the chapters. Chapter Three on Citizenship and Chapter Four on the Bill of Rights specifically emphasize the different rights while Article 2 has brought 15 human rights treaties into operation as part of the laws of Kenya. During the period under review, the thematic area on Citizenship and Human Rights was, involved in a number of activities on monitoring the effective implementation of the Bill of Rights. The following are highlights of the activities undertaken in the thematic area during the period under review.  Development of Bills i) Kenya National Human Rights and Equality Commission KNHREC (Article 59) The Constitution provides for the enactment of the Kenya National Human Rights and Equality Commission legislation as one of the priority laws, within the first years. Article 59 (4) provides for the enactment of legislation to give effect to the Kenya National Human Rights and Equality Commission, which law ―may restructure the Commission into two or more separate commissions‖ and assign functions to each of the successor commissions. CIC received from the Ministry of Justice National Cohesion and Constitutional Affairs, three bills establishing, respectively, the Kenya National Human Rights Commission, the National Gender and Equality Commission, and the Commission on Administrative Justice as the successor commissions of the Kenya National Human Rights and Equality Commission. Given the divergent views on whether there should be one or more commissions, CIC organized stakeholder discussions on 6th and an expert consultation on 12th May 2011. The forums, which had representatives from government ministries and human rights organizations, aimed at obtaining views from the stakeholders on their interpretation of Article 59 as well as analyzing the scenarios regarding establishing one or more commissions. A consultant was engaged to facilitate discussions and obtain a consensus; no consensus however was reached on an ideal number of commissions to be established pursuant to Article 59 of the Constitution. CIC developed and presented an advisory brief to the Ministry of Justice, National Cohesion and Constitution Affairs, giving guidance on the key considerations in the development of the legislation to give effect to the Kenya National Human Rights and Equality Commission. CIC advised on the establishment of two commissions—a National Commission on Human Rights with general national human rights institutions functions including monitoring the implementation and investigation of violations of human rights together with the functions relating to the administration of justice and a Gender and Equality Commission to address matters relating to the principle of equality and freedom from discrimination as provided for in Article 27 of the Constitution with a mandate that focused on working with implementers to effectively integrate or mainstream this principle and work with various minority, vulnerable, marginalized and special interest groups to empower them to understand and demand the implementation of their rights. The CIC also proposed a single legislation to give effect to the two commissions. In response to the Advisory the Ministry of Justice, National Cohesion and Constitution Affairs reiterated its proposal of the enactment of three pieces of legislation to provide for human rights, gender equity, and administrative justice, respectively. Given that the enactment of three Bills was not in any way a violation of the Constitution, CIC proceeded to audit the three bills and to hold the necessary consultations with the Attorney General, the Kenya Law Reform Commission, and the ministry. To avoid confusion, and conflict of functions, CIC also advised on the provision of clauses to facilitate collaboration and joint operation where necessary to ensure that all the commissions work for the benefit of the people of Kenya as envisaged in the Constitution. Because of the necessary extensive consultations on these bills, it was inevitable that the Agreed Scheduled of Timelines for submission of bills was overshot. Having audited the bills, they were finalized within the quarter and submitted to the Attorney General for finalization and onward passage to Parliament. The CIC also forwarded its opinion on the subject to the Parliament for consideration as the bills are debated. ii) Public Dialogue on Utilization by Women of Opportunities Created by the Constitution The Constitution was a triumph for women as it created opportunities to finally ensure that women take their rightful place on the national podium. Some of the opportunities are in the public sector. Following the low level of response by women to the call for applications to the positions of members of the board for the vetting judges and magistrates, CIC organized a public dialogue forum on the gains for women in the Constitution and a discussion of strategies to enable women to fully utilize the spaces created by the Constitution. The one- day forum held on 4th May 2011, brought together women from different counties; in total there were over 80 participants. Participants included members of the legislature, executive, business community and professionals from the private sector; non-state actors and community-based organizations attended. 17th February, 2012 THE KENYA GAZETTE 487 The forum identified and deliberated on key opportunities for women as provided for by the Constitution and resolved that: 1. Kenyan citizens will work tirelessly towards the implementation of the Constitution so that all women can rise up to the identified challenges and take advantage of all positions, whether elective or appointive offices, under the Constitution. 2. Women should realize that they have opportunities and will proceed to take advantage of these opportunities, defining the merit of these positions while embracing diversity and equity. 3. Women will guard against traditional tokenism by fighting for their full involvement at all levels of governance within the country. 4. Women will encourage each other, through deliberate initiatives, to come forth and utilize the spaces created in the Constitution. 5. Women will participate in the process of the enactment of key implementation legislation with a view to ensuring the integration of human rights and the principle of equality and non–discrimination in all the laws. 6. Women will monitor public and private sector policies, laws and administrative procedures to ensure integration of gender equality and access to equal opportunities and freedom from discrimination as stipulated in Article 27 of the Constitution. They will enhance women‘s participation in the political sphere and ensure that political parties come up with systems and policies that equally include men and women in their affairs. 7. Women‘s organizations will take steps to ensure awareness creation among fellow women, particularly at the grassroots level, of opportunities in private and public sectors. To this end, the organizations will ensure that past injustices in the public and private sectors that have contributed towards women not applying for top positions are addressed. 8. Women will more often review and audit the implementation of the constitutional provisions, especially as they relate to gender. As a follow-up to the Forum on Opportunities for women in the Constitution, other consultations were organized by different stakeholders to continue discussions on the need for increased uptake of available opportunities by women. iii) Ratification of Treaties Bill The Constitution vests the legislative authority in Parliament while at the same time providing that ratified international treaties and conventions become part of Kenyan law upon ratification. To give effect to Article 2(5) of the Constitution as read together with Article 94(5) of the Constitution it was deemed prudent to enact legislation to provide for a ratification process that involves parliamentary approval for the ratification of treaties—hence the need for a Ratification of Treaties Bill. CIC received a draft bill from the Kenya Law Reform Commission and reviewed it in plenary and further subjected it to review by a stakeholders‘ forum. The Stakeholders‘ forum also discussed the advanced draft private members‘ bill by Hon. Millie Odhiambo on the same subject. The consultative meeting agreed to merge the two bills into a single ratification of treaties bill. CIC has scheduled a follow-up stakeholder consultation. CIC facilitated two more technical committee discussions in the quarter and has planned another stakeholders‘ validation forum when the bill shall be finalized and forwarded to the AG for finalization. International law professors from law schools, the Ministry of Foreign Affairs, the Ministry of East African Community, the School of Defence, the School of Diplomacy and other stakeholders were the key reviewers of the amalgamated bill. It is expected that the bill will be cleared and forwarded to the Attorney-General by the end of July 2011. iv) Citizenship Bill Legislation on citizenship is one of the priority bills scheduled for enactment in the Fifth Schedule before August 2011. The legislation is aimed at giving effect to chapter 3 of the Constitution. With support from UNDP, the human rights thematic area will be engaging the services of a consultant to embark on an audit of the policies, laws and administrative procedures that are currently operational with respect to citizenship. The ministry responsible for matters of citizenship established an inter-ministerial task force on devolution to prepare a citizenship bill. CIC has met with members of the task force to get preliminary views of the progress pending receipt of the report and draft bill on citizenship from the task force. The draft bill on citizenship is scheduled to be processed in July 2011 and enacted by the 26th August 2011. The CIC received a draft bill, and is currently reviewing it. This bill will be processed within the month of July 2011. In line with its procedures, CIC will review the bill and subject it to stakeholder forums to obtain and input views from stakeholders. CIC will also hold meetings with the Attorney-General and the Kenya Law Reform Commission on the proposed amendments to the bill before the bill is forwarded to Parliament for deliberation. v) Participation at Stakeholder Forums CIC participated at the Prime Minister roundtable on Gender Affairs held on 24th May 2011. The roundtable provided an opportunity for stakeholders to initiate discussions relating to the principles of equity and equality within the Constitution on gender responsive reforms and the content of the Family Protection Bill, the Marriage Bill, and the Matrimonial Property Bill. The roundtable which was chaired by the Prime Minister was attended by participants from the counties, civil society organizations, government representatives as well as members of Parliament. The forum noted the need to ensure that the three laws establishing the Article 59 of the Constitution commissions, as referred to in the preceding paragraphs, are enacted without delay, and participants noted the need for women to take up leadership roles particularly at the political level. The forum also noted the need to have annual meetings to be facilitated by the ministry responsible for gender and a forum for stakeholders to assess and evaluate the progress of the implementation of proposed recommendations. vi) Consultation with Implementing Agencies CIC held a meeting with the Ministry of Justice, National Cohesion and Constitutional Affairs on 15th June 2011to discuss the roadmap for the implementation of human rights as provided in the Constitution. The meeting agreed that the National Policy and Action Plan on Human Rights will be the guiding tool for implementers and in the final stages need to take note that human rights are cross-cutting and therefore applicable to all implementers. In this regard, the National Policy and Action Plan on Human Rights needs to be designed to ensure consistency with the Constitution and involve all implementers and be the reference tool on human rights in all sectors. It was also agreed that there is a need to establish a technical structure to develop standards for the implementation of socio-economic rights in line with Article 21 of the Constitution. In this regard, follow-up forums will be held with the Kenya National Human Rights and Equality Commissions.  Challenges The thematic area was faced by some challenges, which include: i) A lack of consensus on whether to form one or more commissions in line with Article 59 of the Constitution: The discussions on the merits of each option were clearly driven by self-interest and lobbying, making the process of the consideration of the bills take too long and resulting in CIC overshooting on the scheduled timeframe within which to submit the bills for Cabinet deliberation. ii) The implementation of socio-economic rights face a potential challenge if the key government development planning and supervisory offices and ministries fail to internalize their constitutional responsibility to deliver on these rights and on the principle of equality and equity in the sharing of national services, resources and opportunities. The CIC believes that all coordinating ministries and public departments including the ministries of Planning, Treasury and Public Service as well as the Vision 2030 and the Central Bureau of Statistics, working with the Kenya National Human Rights and Equality Commission and the CIC must relook at the national development policies and the available data and review it to enable the equitable sharing of resources and objective monitoring on compliance on the delivery on the socioeconomic rights. The CIC hopes to get a consensus on an agreeable way forward among the key stakeholder in the next quarter.  Planned Activities for the Next Quarter The thematic area plans to undertake the following activities during the next quarter: THE KENYA GAZETTE 17th February, 2012 488 488 i) Facilitating the preparation of a guide on the implementation of human rights in consultation with the Kenya National Human Rights and Equality Commission institutions and other stakeholders. ii) Reviewing the national policies on the National Policy and Action Plan on Human Rights and the Kenya Vision 2030 to ensure the integration of the values and principles of the Constitution. iii) Identifying other priority bills relating to human rights and undertake internal review and stakeholder analysis. iv) Reviewing sectoral policies in two sectors to ensure the initiation of relevant steps for the full integration of human rights. v) Undertaking a training-needs assessment for key implementers on human rights and the rights approach to service delivery. vi) Facilitating the development of the national implementation monitoring and reporting tool on human rights vii) Finalise the review of the bills on Citizenship, Marriage, Freedom of Information, and Public Participation. 3.1.3 Representation of the People and the Legislature Thematic Area  Introductory Remarks The objective of the theme is to ensure that the policies, laws, systems, structures and administrative procedures developed/reviewed and applied at all levels of elections, in every political party, and in parliamentary and assembly affairs, are consistent with and according to the letter and spirit of the Constitution. The ultimate aim is to have all the people of Kenya, including leaders, respect the rule of law, uphold national values and live by the Constitution; with the eventual aim of all Kenyans living under the new dispensation in a united, peaceful and prosperous nation. For this theme to contribute to CIC‘s role of monitoring, facilitating and oversight, along with working with constitutional commissions, the Representation and Legislature Thematic Team will ensure that the electoral system and process and the Independent Electoral and Boundaries Commission are put in place and applied. It will also ensure that guidelines for political parties, Parliament and county assemblies are developed and applied according to the letter and spirit of the Constitution.  Achievements i) Independent Elections and Boundaries Commission, Political Parties and Elections Bills All the bills (Independent Elections and Boundaries, Political Parties and Elections Bills) under this theme had not gone through the process of obtaining input from the 47 counties much as the Constitution requires the people of Kenya to participate in their development. As a result, CIC had to have the people of Kenya (through representatives from the 47 counties) input their views before CIC finalized with the monitoring, facilitating and overseeing the implementation of the Constitution. The participation of the people of Kenya in the development of the bills was through three separate consultative forums, one for each bill. Additionally, eleven counties were visited by CIC and during the visits, views on how the electoral system and process may be improved were obtained from county residents. The Independent Elections and Boundaries Commission and Political Parties bills were then signed off by the Attorney-General/the Kenya Law Reform Commission/the Interim Independence Electoral Commission/CIC. The Independent Elections and Boundaries Commission Bill was passed by Parliament in May 2011 and it is currently awaiting presidential assent. The Elections Bill is delayed because it is awaiting input from the Devolved Government Task Force. It may be interesting to note that the Independent Elections and Boundaries Commission is yet to be forwarded to the President for assent. CIC has been trying to understand why the delay yet this is one of the crucial bills for matters to do with elections. ii) Monitoring the application of policies, laws and administrative procedures The theme was also involved in monitoring the application of the policies, laws and administrative procedures. In pursuance of this, CIC wrote to the Registrar of Political parties in relation to political parties‘ compliance with the Constitution. CIC also monitored and oversaw the legislative process to ensure that each arm plays its role in a timely manner, as agreed and tabulated, plus, as per the Constitution. In this endeavour, CIC wrote two advisories to Parliament concerning changes in the Independent Elections and Boundaries Bill. CIC now awaits the Independent Elections and Boundaries Act to check it constitutionality. The theme is currently developing a framework for monitoring, facilitating and overseeing the electoral process and system, Parliament and County Assemblies.  Challenges The challenges faced by the thematic team include the following: i) Changes happening after CIC has checked the constitutionality of the content of draft bills. To address this challenge, CIC had to write two advisories to the office of the Prime Minister, the Cabinet, the Ministry of Justice, National Cohesion and Constitutional Affairs, Parliament, the Attorney-General and the Kenya Law Reform Commission. ii) Official versions of bills keep on changing once CIC has started work on the bills. iii) The agreed changes at sign-off meetings were not fully incorporated thereby compelling CIC to do repeat jobs. iv) Staff who were sent to roundtable meetings by partners and implementing agencies were not able to make all final decisions during the sign off meetings. v) Delays in processing the Independent Elections and Boundaries Commission bill and this has has negative effects on moving the process forward vi) Parliament (Clerk to the National Assembly) has been slow in responding to CIC‘s request for an initial meeting to discuss how Parliament and CIC will work together in implementing the Constitution. CIC has twice written to Parliament requesting for appointments.  Lessons Learnt The thematic team drew some lessons from the challenges identified above. These may be summarised as follows: a) It would be better if bills have input from all key stakeholders and the people of Kenya before they are sent to CIC for review. b) The people of Kenya need to be continuously vigilant regarding the implementation process. c) All the arms of government need t o develop policies/sessional papers before developing relevant legislation.  Planned activities for July-September 2011 Quarter The thematic area is programmed to undertake various activities in the next quarter. These include: i) Bills: the thematic team expects to develop new bills including the vetting bills and bills relating to the legislature both at the national assembly and county assemblies. ii) The thematic team anticipates to complete or ensure the following legislation is completed: a) Elections Bill. b) Political Parties Bill. c) Bills relating to the legislature at national and county levels. iii) The thematic team anticipates completing the development of a framework for monitoring, facilitating and overseeing development of legislation, administrative procedures, and policies. iv) The thematic team anticipates to start applying the developed framework at both design and development of policies/sessional papers, legislation, and administrative procedures. v) The thematic team is anticipating the implementation of the Independent Elections and Boundaries Commission law once it is enacted. Towards this end the thematic team will enhance action to facilitate finalization of the delimitation of electoral boundaries. vi) The thematic team plans to start reviewing administrative procedures relating to the electoral system and process. The thematic team will facilitate vetting with the aim of ensuring that they are in line with the policies, laws and the letter and spirit of the Constitution.  Financial Support by Development Partners/Donors The UNDP facilitated the provision of two consultants to provide specialized expertise to review the Elections Bill. 3.1.4 Public Finance Thematic Area 17th February, 2012 THE KENYA GAZETTE 489  Introductory Remarks The thematic area is tasked with the responsibility of guiding and coordinating the constitutional implementation activities relating to matters of public finance. This includes overseeing the development of legislation and administrative procedures that are reflective of the letter and spirit of the Constitution while ensuring that the process is both open and participatory. CIC‘s principal partner in this context is the Ministry of Finance, which is the key driver in public finance management reforms. In view of the implications of public finance management on devolved governments, CIC also partners with the Ministry of Local Government through the Taskforce on Devolved Government.  Achievements In light of the foregoing, the thematic area on public finance has undertaken various activities and discussions aimed at giving effect to Chapter 12 of the Constitution. i) Public Finance Management and Fiscal Decentralization Principles Workshop CIC, jointly with the Treasury held a consultative forum on public finance management and fiscal decentralization with the aim of discussing the principles of the public finance management framework as spelt out in the Constitution whilst also highlighting the Public Finance Management law as conceptualized. The meeting involved all government agencies dealing with public finance and fiscal decentralization including the Task Force on Devolved Government. The consultation with the Task Force on Devolved Government was intended to achieve a common understanding on the critical issues required in the anticipated legislation. The meeting provided an avenue for devising ways and strategies aimed at overseeing the transition to fiscal decentralization and the roles of the various institutions therein. The meeting availed an opportunity to sensitize key players on their roles regarding facilitating the rollover to the new fiscal decentralization/devolution framework. The Ministry of Finance released a lay Draft of the Public Finance Management Bill and was soliciting views from the public regarding the contents of the Public Finance Management Bill. The importance of the bill cannot be gainsaid especially because Kenya has adopted the devolved system of government. CIC has been in constant consultation with the Ministry to ensure public participation in the preparation of the bill before its presentation to CIC for review. ii) CSO Consultative Forum on the Public Finance Management Bill On 17th June 2011, CIC held a technical workshop on key issues arising from the draft the Public Finance Management Bill, including issues of intergovernmental fiscal relations, roles of institutions and transparency and accountability mechanisms within the draft. The resolutions of that meeting fed into the stakeholder forum held on the 27th June 2011. The consultation is expected to involve a wider cross- section of stakeholders, including representatives from the counties. iii) Discussion Forums with Experts on Public Finance Management CIC held two working forums with international experts and practitioners in the public finance area including Professor Paul Smoke, Dr. Junaid Ahmad and the former Chief Executive Officer of the Johannesburg Municipal Council. The basis of the meetings was to sensitize CIC commissioners regarding the public finance processes by learning from comparative experiences on fiscal decentralization. The lessons leant will enrich the implementation process in Kenya in light of Chapter Eleven of the Constitution while ensuring that the interests of the public are adequately catered for. In this regard, it was important to get the views of people who have had experience in successful systems. Kenya can learn from these experiences to implement a devolved system of government while avoiding challenges related to its implementation. iv) Commission on Revenue Allocation Bill CIC facilitated various discussions on the Commission on Revenue Allocation Bill with different stakeholders and was able to reach consensus on contentious issues regarding the bill. The Commission on Revenue Allocation is an independent commission set up under Article 215 of the Constitution of Kenya. Its core mandate is to recommend the basis for equitable sharing of revenues raised nationally between the national and the county governments and the sharing of revenue among the county governments. The Commission on Revenue Allocation Bill to expound on the role and functions of the Commission on Revenue is due for publication. v) Salaries and Remuneration Commission Bill, 2011 CIC organized stakeholder consultative meetings to facilitate the deliberation of the contents of the Salaries and Remuneration Bill. The bill sets out the operations and structure of the Salaries and Remuneration Commission established by Article 230 of the Constitution. The mandate of the Salaries and Remuneration Commission is to set and regularly review the remuneration and benefits of all State officers. The Bill was passed by Parliament and is awaiting presidential assent. vi) Consultative forum for Non-State Actors CIC organised a consultative forum for Non-State Actors on 7th June 2011. The overall objective of the stakeholder participation was to: share CIC‘s mandate and strategy and discuss how best to work with NSAs to achieve this mandate, discuss current implementation strategies among NSAs, discuss ways of enhancing stakeholder and public involvement in the implementation process. Some of the key outcomes of the meeting include, development of a mapping of non- state actors involvement in constitutional implementation at national and county level and a draft strategy for CIC‘s engagement with Non- State Actors.  Challenges The thematic area encountered some challenges in the course of assisting with the generation of bills. These include: i) A divergence of views regarding the interpretation and application of the provisions of Chapter Twelve of the Constitution on public finance, especially on the budgetary process. ii) A lack of coordination in the generation of bills in this area due to its cross-cutting nature. CIC has advised the parties involved in this process that such efforts would be best complemented if they were well coordinated and centrally worked on, thus avoiding a duplication of effort and resources.  Proposed activities in the Next Quarter During the next quarter, the thematic area on public finance has scheduled various activities such as: i) Stakeholder consultations on the final version of the Public Finance Management Bill. ii) Technical consultations regarding the revision of the Public Audit Act. iii) Oversight over the review of the Public Procurement law and the Central Bank law. iv) Oversight over preparation of regulations under the Public Finance Management law. v) Consultations with institutions dealing with Public finance.  Financial Support by Development Partners/Donors The GIZ facilitated the provision of a consultant to provide specialized expertise to review the Public Finance Management Bill and the Controller of Budget Bill. 3.1.5 Judiciary and Constitutional Commissions Thematic Area  Introductory remarks This thematic area is concerned with the constitutional establishment and/or institutional reform of the judiciary and constitutional commissions as respectively provided for in Chapter Ten and Fifteen of the Constitution of Kenya 2010. It addresses such matters as the enactment and/or amendment, of legislation, policy, development or review, and formulation of administrative procedures required to ensure effective and timely implementation of the Constitution in that regard.  Achievements i) Implementation of Chapters Ten and Fifteen Since the last quarter, the Thematic Team on Judiciary and Constitutional Commissions completed a review of three bills that have been enacted into law, namely: the Judicial Service Act, 2011, the Vetting of Judges and Magistrates Act, 2011, and the Supreme Court Act, 2011. ii) Public Participation in development of Bills THE KENYA GAZETTE 17th February, 2012 490 490 The internal review of the aforesaid laws involved numerous consultative workshops to ensure sufficient public participation in accordance with the requirements of Article 10 of the Constitution. On 30th March 2011, the Thematic Team successfully organized a multi-stakeholders‘ forum to discuss the Supreme Court Bill at Sankara Hotel, Nairobi as a follow-up to a similar meeting held on 18th March 2011. The object of the Bill is to make further provision for the operations of the Supreme Court pursuant to Article 163(9) of the Constitution. The forum was attended by stakeholders drawn from various Civil Society Organizations, namely, ICJ-Kenya, FIDA-Kenya and TI- Kenya. It was also attended by the Chairman of the Kenya Law Reform Commission. Participants at the stakeholders‘ forum exhaustively discussed the Supreme Court Bill, exchanged views and made suggestions for the improvement of some of its provisions. On 21st April 2011, CIC finalized review of the Supreme Court Bill and submitted Bill the Bill with amendments to the Attorney-General‘s Office for consideration. The bill was passed by Parliament on 16th June 2011 and subsequently assented to by the President on 23rd June 2011. The Thematic Team on Judiciary and Constitutional Commissions also worked on the Salaries and Remuneration Commission Bill, 2011, and collaborated with the Public Finance Thematic Team on the Independent Officers (Appointment) Bill, 2011, both of which are awaiting presidential assent. Notably, the Salaries and Remuneration Commission Bill has recently been referred to Parliament by the President for minor amendments before assent. Due to the significant amount of work undertaken by the Commission, CIC has been keen in determining priorities to be given to draft bills once it receives them. On 18th April 2011, CIC agreed on timelines for the development of priority bills for the period ending 30th August 2011. The Thematic Team worked in collaboration with the Bill of Rights Thematic Team on the following bills in harmony with the scheduled timelines: (a) Kenya National Human Rights Commission Bill, 2011, (b) National Gender and Equality Commission Bill, 2011, and (c) Commission on Administrative Justice Bill, 2011. CIC has convened several workshops to gather views and comments from various stakeholders for purposes of enriching the abovementioned bills. Internal review of the bills is still ongoing and will be finalized by the end of the month. iii) The Vetting of Judges and Magistrates Act Following the enactment of the Vetting of Judges and Magistrates Act, 2011, the President, in consultation with the Prime Minister, declared vacancies in the offices of the members of the Judges and Magistrates Vetting Board. Applications were expected to have been submitted on or before 21st April 2011. However, only four people however applied for the position of chairperson and five for members of the Vetting Board by the closing date on 21st April 2011. Further, the number of applicants to the Vetting Board did not meet the constitutional requirement for gender equity, with only one female applicant. Due to the low level of interest shown by women in applying for positions to the Vetting Board, the Thematic Team on Bill of Rights and Citizenship organized a consultative forum on 4th May 2011 to discuss ways in which women can meaningfully utilize opportunities created for them by the Constitution of Kenya, 2010. The workshop was well attended by women leaders, political leaders, lawyers and members of the general body of civil society. To attract more applications for the vacancies, the Minister for Justice, National Cohesion and Constitutional Affairs, Hon. Mutula Kilonzo, tabled before Parliament the Judges and Magistrates (Amendment) Bill, 2011, on 4th May 2011. The Bill proposed to amend section 9(2) of the Vetting of Judges and Magistrates Act, 2011, which would extend the time for constitution of the Vetting Board. The Bill was passed by Parliament and subsequently assented to by the President on 21st March 2011. On 19th May 2011, the President, in consultation with the Prime Minister, via