GAZETTE NOTICE NO. 2056

under the eight thematic areas under which the CIC‘s work is divided.  Part 3 of the Report discusses the lessons that have been learnt and some of the systemic issues that have emerged in the first year of CIC‘s work. These lessons and issues relate to process and substantive matters as well as to the challenges that the Commission and the implementation process faces.  Part 4 focus on how the momentum towards full implementation of the Constitution of Kenya, 2010 can be maintained and, in particular, how the challenges and impediments to implementation can be addressed going forward. Five Annexes compliment these main parts of the Report. The first annex contains the text of an open letter to the Attorney General (AG) regarding the mandate and functions of the CIC following claims by the latter that, among other things, the CIC has no role in the implementation of administrative procedures required to implement The Constitution of Kenya, 2010 and that its mandate is limited to giving advisory opinions to the Attorney-General, which opinions the Attorney-General may choose to ignore or reject. The second annex contains a summary of the status of submission of quarterly reports to the CIC by implementing agencies. As noted in the third quarterly report, CIC has requested ministries, state agencies and constitutional commissions to submit status reports to allow the CIC to provide a comprehensive picture of implementation process in the quarterly reports. The third annex provides an overview of the legislations that need to be enacted by February 2012 as per the Fifth Schedule of the Constitution. The fourth annex provides the status, as at the end of 2011, regarding the enactment of Constitutional implementation legislation. The fifth and final annex provides information about the CIC and its Commissioners, including the mandate, mission and vision and of the Commission. 2. OVERVIEW OF CIC ACTIVITIES IN THE FOURTH QUARTER OF 2011 “The Constitution Will Best Serve The People Of Kenya And Deliver Its Promises Where Each Of Us Makes An Individual Commitment To Enhance A National Ethics Based Culture. This Commitment Must Extend To A Relentless Defence Of The Constitution Including The Necessary Vigilance That Will Ensure Its Full And Faithful Implementation In the Letter And Spirit.” Excerpt of the CIC Chairperson‟s speech at the Eighth Annual Conference On Ethics And Integrity. In the fourth quarter of 2011 the CIC continued to engage with the people of Kenya and various implementing agencies as well as carrying out a range of activities in line with its mandate. During the reporting period, the Commission‘s work can be divided into two categories of activities, namely: Commission-wide activities and activities under the various thematic areas. This part of the Report provides information regarding activities in both categories. 2.1 Commission-wide Activities Commission-wide activities during the fourth quarter of 2011 were of two kinds. Engagements with various stakeholders and institutional development activities. 2.1.1 CIC engagements with stakeholders CIC had various engagements in the form of meetings with various stakeholders ranging from meetings with parliament to the executive through to meetings with the public. Some of key meetings and a summary of the main issues discussed are as follows:  Meeting with the Speaker of the National Assembly On 23rd November 2011 the CIC attended a consultative meeting with the Hon. Speaker of the National Assembly, Hon. Kenneth Marende. The meeting was at the request of CIC which wanted to discuss ways of collaborating with members of parliament to ensure that the process relating to the development of private members‘ Bills takes into account the constitutional values and principles including the key constitutional principle of public participation. The Commission was also interested in clarifying its role with respect to the development of private members‘ Bills. The Hon. Minister for Justice, Cohesion and Constitutional Affairs, the Hon. Attorney General (AG) and the Chairman to the Kenya Law Reform Commission (KLRC) also attended this meeting at the invitation of the Speaker. Since the promulgation of the Constitution there have been a range of private Members‘ Bills seeking to address matters relevant to the implementation the Constitution. As a matter of law these Bills, like Bills generated by the executive expected to be consistent with the constitution in compliance with Article 2(4). So far six private members‘ Bills have been passed by parliament and another set of more than 20 are before the House. These Bills have, however, not bee subjected to the process agreed upon by the key constitutional implementation agencies for the development of Bills for the implementation of the Constitution. Considering the Constitutional provisions on representation, the CIC acknowledges the value of private members‘ Bills and the authority of parliament in the development and passing of these Bills. CIC‘s interest was therefore NOT to undermine this role of Members of parliament but to hopefully get to an agreement with Parliament on ways of enriching this process to bring it to fully resonate with the new Constitutional order that demands people centred processes and effective public participation in development of all laws and policies. In requesting the meeting with the Speaker, the CIC was hoping that Parliament would be agreeable to amending its orders to allow for broader consultation on these private members‘ Bills. Regrettably this was not to be. In particular, during the meeting the CIC delegation was taken aback by some of the reactions to the proposal for CIC‘s involvement and broader public participation in private members‘ Bills affecting the Constitutional implementation process. The Hon. Attorney General opined that CIC had no business trying to monitor Constitutional compliance of private members‘ Bills. In his view, the office of the AG and the CIC and other non-elected officers are answerable to the elected leaders and on his part “where his view conflicts with that of elected leaders, he will cede his view in place of the views of these leaders.” This was a disturbing opinion given that all state organs, including parliament, are subject to the Constitution and have the responsibility to conduct themselves in a manner that upholds spirit of the Constitution. In the case of CIC and other constitutional commissions the Constitution clearly states that their responsibility is to preserve the sovereignty of the people, securing the observance by all State organs of democratic values and principles; and promote constitutionalism. During the meeting, the CIC was also informed by the team from Parliament that the procedure relating to private members Bills is the one under the old constitution and the window of opportunity for public participation is limited to the 30 days after publication of such Bills. It was argued that members of parliament are not obligated to develop private Members Bills in consultation with CIC or anybody else. It was suggested that private member Bills would be forwarded to CIC at the publication stage and not before that. Bills are published by the Government printer in Nairobi and averagely cost Kshs. 200 per copy. This means that these Bills are reasonably accessible to most Kenyans particularly those outside Nairobi. The limitation of public participation role to the 30 days after the publication of a private THE KENYA GAZETTE 17th February, 2012 546 546 members Bill does not, in the view of CIC, meet the constitutional requirement of public participation. CIC believes that members of parliament, in exercising their legislative authority to generate private members Bills should also ensure that the constitutional values and principles in Article 10, read together with Article 94 (which affirms that legislative power belongs to the people of Kenya), are respected. Notwithstanding the negative outcome at the meeting, the CIC acknowledges, and is grateful to, individual members of parliament who have, at their own initiative and in recognition of CIC role, worked with Commission and other stakeholders in developing their private Bills.  Meeting with the Prime Minister The CIC, during the reporting period, held a meeting with the Prime Minister as one of the government ministries/departments with responsibility under Article 43 of the Constitution (economic and social rights). The aim of the meeting was to find out efforts being made by the executive to implement economic and social rights and to undertake the responsibility enshrined in Article 21 of the Constitution regarding the duties of the state and state organs to implement rights and fundamental freedoms. Following the meeting, the Office of the Prime Minister agreed, in principle, to move the process for the implementation of socio- economic rights so as to ensure that ordinary Kenyans benefit from opportunities and rights in the Constitution.  Meeting With the Attorney General CIC paid a courtesy call to the new AG Hon. Prof. Githu Muigai following his appointment. At the meeting CIC and the AG discussed modalities of engagement and of working together with respect to Constitutional implementation.  Public Forums in Kisii On 7th December 2011, CIC participated in a public forum hosted by the Kisii Catholic Church at St. Vincent‘s church. The participants were church leaders from the Kisii and Nyamira Counties. On 9th December 2011, CIC participated in a second forum at the Nyabururu Catholic Church, which brought together mainly women community leaders. The purpose of both forums was for CIC to give raise awareness on the Constitution, with special attention to the electoral system and process, and the devolved governance structure. Participation at the Forum was part of CICs effort to ensure that the people of Kenya are actively involved in the implementation of the Constitution. The participants were urged to be actively involved in monitoring the implementation of the Constitution, which is a duty of all the people of Kenya. The meetings underscored the fact that special voter education is necessary before the next General Election so that all Kenyans are able to vote in an informed manner, and also to draw to the public‘s attention the provisions relating to electoral offences laid out in the Elections Act, 2011. In addition, the forums highlighted the fact that women need to seek elective posts in the forthcoming elections to make the gender provisions of the Constitution a reality.  Dinner to celebrate the gains for women under the Constitution of Kenya, 2010 On Sunday, 4th December 2011, the Commission hosted a dinner at the Intercontinental Hotel Nairobi with the theme ―Celebrating and Safeguarding the Gains for Women under the Constitution.‖ H.E Graca Machel, a member of the Panel of Eminent African Personalities, was the chief guest at the event. She and delivered a motivational and inspiring keynote address on the topic „fulfilling the peoples promise, let every woman in Kenya feel the benefit of the Constitution.‟ The dinner was attended by women from different sectors of the Kenyan society. In her address, the Chief Guest called upon Kenyan women to be steadfast in their quest for inclusion and participation in nation building as a significant part of the Kenyan citizenry. She decried tokenism in application of women‘s rights and further called upon all women to support each other in safeguarding their rights in the Constitution.  Roundtable Meeting with the Editors Guild CIC held a media briefing on 17th November 2011. The objective of the meeting was to discuss the mandate of the CIC and the role of the media facilitating the implementation of the Constitution. The meeting discussed various issues and how to keep the Constitution implementation agenda topical for purposes of keeping the people of Kenya abreast of the implementation process and other issues emerging in the implementation of the Constitution. Among the issues discussed were:  The need to conduct comprehensive civic education to enhance the understanding of the Constitution by Kenyans;  The need for public and media vigilance to ensure the letter and spirit of the Constitution are adhered to; and  The need for CIC and the media to engage in a structured manner to ensure that issues relating to the implementation of the Constitution remain current and gets adequate attention and coverage in the media.  Kenya National Dialogue and Reconciliation Conference CIC Commissioners attended the National Dialogue and Reconciliation Conference organized by the Panel of African Eminent Personalities and the Kofi Annan Foundation. The conference, divided into a series of review meetings, was convened to take stock of the implementation of the agreements and the reform agenda resulting from the Kenya National Dialogue and Reconciliation process following the 2007/2008 post-election crisis. Various Kenya‘s leaders, members of the Government, parliamentarians, business and religious leaders, members of civil society, private sector and the media, as well as members of diplomatic corps and representatives of international organizations attended the conference.  Meeting with the Kenyan Diaspora in the United States of America During the reporting period, the CIC participated, through presentations and panel discussions, in the Kenya Diaspora Conference in Washington, D.C. and other diaspora meetings in cities with a large population of Kenyans in the United States of America (U.S.A.) The Conference was an important avenue to interact with Kenyans, update them on progress in the implementation of the Constitution and urge them to actively participate in the implementation of the Constitution. The African Union (AU) Constitutive Act forms part of Kenya‘s law by virtue of Article 2(6) of the Constitution (treaties and conventions ratified by Kenya). Article 3 of the AU Constitutive Act calls upon its signatories to, ―invite and encourage the full participation of the African Diaspora as an important part of our continent in the building of the African Union.‖ The Act as read together with Article 1 of the Constitution call for an inclusive approach in implementing the Constitution to ensure that all Kenyans exercise their rights effectively. It is on this basis that the Kenyan Embassy in the U.S.A convened the Conference and meetings with the general objective of informing, encouraging and catalyzing Kenyans in the Diaspora to effectively contribute to Kenya‘s development, including the implementation of the Constitution and Vision 2030. Specifically, the Conference had the following objectives:  To facilitate the growth and development of productive networks and linkages of the Diaspora with Kenyan institutions, organizations and firms, in different areas (youth, medical, academia, technology, engineering, etc.,) for national development;  To highlight and encourage the achievements of Diaspora in U.S.A in different fields and to explore how their resources, knowledge, skills, competences, technology, among others, can be harnessed systematically for Kenya‘s political, economic and socio-cultural development;  To launch partnership between the Kenyan government, civil society and private sector with the Diaspora in implementing Kenya‘s Vision 2030 and ensure that the Diaspora remains 17th February, 2012 THE KENYA GAZETTE engaged in the development of Kenya – from remittances to investment and entrepreneurship;  To enhance the Diaspora‘s role as the country‘s premier goodwill ambassadors; and  To sensitize the Diaspora on the implementation and implications of the new Constitution for them.  Breakfast meeting with the Executive Leadership Network Governance Group The CIC attended a breakfast meeting organized by Executive Leadership Network (EL-NET) Governance Group on 23rd November 2011. The theme of the breakfast meeting was “The role of the Church in Constitutional Implementation”. Different leaders of churches and church organizations in Nairobi attended the meeting. CIC took the opportunity to highlight the important role that the church plays as a stakeholder in the implementation of the Constitution and to reiterate the importance of the Church as a civic educator and hence the need for a proper understanding of the Constitution by the leadership.  Other Engagements In additional to the engagements discussed in detail above, CIC, during the fourth quarter of 2011, was also involved in other events organized by public bodies, the private sector and civil society. These include: The 8th Annual Conference on Ethics and Integrity organized by the Strathmore University; the Methodist University Graduation Ceremony; and the APSEA Annual Dinner under the theme ‗setting the stage for ethics and integrity in the 2012 electoral processes and future leadership of Kenya‘. In particular, the CIC‘s Chairperson and other commissioners have been called upon to make presentations on constitutional issues and topics in these meetings. These fora serve as an important part of communicating the mandate of CIC and discussing various topical issues including the status of implementation and roles to be played by different actors. 2.1.2 Audit of laws/policies/procedures and Public interest litigation The submission of status reports by ministries has enabled the CIC to begin auditing laws, policies and procedures in various sectors. The reports submitted so far (Annex II) have covered key matters ranging from efforts to familiarise staff with the Constitution to integration of the Constitution in performance contracts through to efforts at change management. The CIC continued, in the fourth quarter, of 2011 to follow up with various ministries to submit status reports and also with the audit function. In exercising its mandate the CIC is empowered to move to court. Accordingly CIC has moved to Court, joined suits filed by other parties and been enjoined as an interested party on matters of interpretation of the Constitution. The various key cases in which CIC is involved include:  Constitutional Petition No. 65 of 2011 In the Matter of the Construction, Interpretation and Determination of the Actual Date of the Next General Elections (Between Milton Mugambi Imanyara & others and the Attorney- General and others) The Petitioners filed three separate cases in the High Court and Supreme Court seeking a declaration on the date of the next general elections. On 15th November, the Supreme Court directed that the three petitions should be consolidated and heard together before a three Judged bench as they relate to the same subject matter, the question of the date of the next general election. The case came up for hearing on 15th and 16th December before Justice Isaac Lenaola, Justice Mumbi Ngugi and Justice David Majanja. The court restricted itself to addressing the following main issues on the matter:  When shall the next general election be lawfully held?  When does the date of the current Parliament come to an end?  Does the President have the power to dissolve the current Parliament?  When shall the current Members of Parliament cease to enjoy the benefits and emoluments of their office?  Whether the new Constitution can be amended to alter the date of the general election without reference to the people of Kenya through a referendum. Petitioners concluded making their submissions on the issues and the court shall issue judgement on 13th January 2012.  Constitutional Petition No. 102 of 2011 In the matter of the Recommendation by the Judicial Service Commission of Persons for Appointment to the Offices of Judges of the Supreme Court under the Constitution of the Republic of Kenya (Between Federation of Women Lawyers of Kenya (FIDA- K) & others and the Attorney-General and others) The Federation of Women Lawyers-Kenya (FIDA), being the 1st Petitioner and others filed before the High Court a petition to seek the correct interpretation, full tenure, meaning and effect of Article 27 of the Constitution of Kenya 2010 and the proper approach to the interpretation of the Constitution in the specific case of the nomination of judges of the Supreme Court. The Petitioners argued that in order to comply with the Constitutional requirements of Article 27, the Judicial Service Commission (JSC) was under a duty to ensure that in the final analysis of its recommendation no gender fell below 33.3% and no gender exceeded 66.7%. It was contended that with two women and 5 men in the Supreme Court, it means that the percentage composition of the female gender is 28.57% whereas the percentage composition of the male gender is 71.43%, therefore, the recommendation by the JSC is in breach of Article 27 on the principle that not more than two thirds of the members of elective or appointive bodies shall be of the same gender. Judgment was issued in the case and although it was not in favour of the Petitioners. FIDA-Kenya therefore filed an appeal contesting the Court decision. The matter was mentioned on 7th December 2011 at the Supreme Court before Justice Mohammed Ibrahim and Justice Smokin Wanjala, the Court directed that the parties file and serve supplementary submissions ahead of the hearing on 26th and 27th January 2012.  Constitutional Petition No. 145 of 2011 In the matter of Article 2(1), (2) and (4) of the Constitution and in the matter of Article 22, 23, 27(1) and (2), 47(1) and 258 of the Constitution and in the matter of Article 261(4) of the Constitution and in the matter of Section 2(3)(b), 14(1) and (2) and 15 of the Sixth Schedule to the Constitution (between the Commission for the Implementation of the Constitution and the Attorney-General and others) CIC, being the Petitioner filed, on urgency basis, a Constitutional reference objecting to the AG‘s unconstitutional conduct in the preparation of two Bills, namely the Contingencies Fund and County Emergency Funds Bill, 2011 and the National Government Loans Guarantee Bill 2011. The Commission is seeking to restrain the Speaker of the National Assembly (named as the 2nd Respondent from dealing with the two Bills in any way connected wit debate on and enactment of the Bills). The Honourable Lady Justice Karanja certified the application as urgent and issued conservatory orders to preserve the subject matter of the Petition and to stop the unconstitutional acts being perpetrated by parties who should be safeguarding and upholding the Constitution. Consequently, the aforesaid interim orders restraining the 1st and 2nd Respondents from taking further steps in connection with the enactment of the two Bills were granted until the hearing of the application. The order and proceedings of the case were served upon the Respondents and the Government printer. However the Court order was ignored and the two Bills enacted into law and assented to. The petition case came up for hearing on 9th December 2011 before Lady Justice Mumbi Ngugi for the mention. The purpose of the mention was to confirm compliance with earlier directions of the Court regarding filing of the Commission‘s Supplementary Affidavit and exchange of submissions. The Commission has filed and served the Supplementary Affidavit. In the premises, the Court admitted the Commission‘s Supplementary Affidavit and ordered that the Commission file and serve its written submissions. The Respondents were required to file and serve their respective written submissions by the 23rd December 2011. The matter shall be mentioned THE KENYA GAZETTE 17th February, 2012 548 548 on 6th February 2011 to confirm compliance with directions and to take a date for highlighting of submissions. The Court extended the interim orders until the hearing date.  Constitution Petition No. 137 of 2011 In the matter of Payment/Variation/Waiver/Variation of Taxation by Members of Parliament and State/Public Officers and in the matter of the Principles of Public Finance: Openness, Equality, Fairness, prudence and Responsibility in the Application and imposition of Taxation (between Rev. Dr. Timothy Njoya & others and the Attorney-General and others) Rev. Timothy Njoya, being the 1st Petitioner sought interpretation of the following provisions of the Constitution: whether under the Constitution all State Officers including Members of Parliament are under an obligation to pay tax as per Article 210 as read with 201 and 230 of the Constitution; whether the Executive has the powers or authority to exempt any ‗State Officer‘ from payment of tax, whether the current Constitution or the transitional clauses saves or exempts the Members of Parliament from payment of tax, whether it would be illegal and unconstitutional for the Government to settle the tax burden of Members of Parliament using public resources or tax payer‘s money and whether it would be illegal and unconstitutional for the Members of Parliament to derail or frustrate the debate or passage of bills for full implementation of the Constitution on account of the demand by the Kenya Revenue Authority to pay taxes. The matter came up for hearing on 8th September 2011 where the 1st Petitioner requested leave of the Court to amend the Petition to withdraw names of Members of Parliament who have since settled their tax arrears and to enjoin in the suit Members who had been left out but had not settled their tax obligations. The matter has been forwarded to the Chief Justice to appoint a three Judge bench and for directions. 2.1.3 Institutional development activities One of the key strategic outcomes for the CIC is to achieve well functioning secretariat. In this context, CIC has continued to make significant steps to strengthen its Secretariat. In the fourth quarter of 2011 important progress was recorded in a number of areas.  Human Resource CIC was, for the most part of 2011 operating with staff mainly seconded from other government agencies. In the last quarter of the year following the development of organogram for the Secretariat, the Commission, in line with Article 232 of the Constitution, commenced the competitive recruitment of staff starting with the administration section. In this regard, nine (9) management positions were advertised on 7th October 2011 with the application process closing on 4th November 2011. The selection process to fill these positions will be completed in early 2012.  Financial management The CIC, as noted in the third quarterly report started operating with an independent vote in July 2011. During the reporting period, the Ministry of Finance developed and circulated to Ministries/Departments/Agencies guidelines on the preparation of the 2012/2013 budget and the 2014/2015 Medium Term Expenditure Framework. On the basis of these guidelines, CIC begun the process of developing its budget and expenditure framework for the relevant period, including undertaking County visits to allow for public participation in budget-making process. Overall, CIC will be seeking approximately Kshs.1.138 billion for 2012/13 based on forecasted needs.  Media and communications CIC continues to maintain and operate a vibrant and interactive website. On the website, the people of Kenya can access all Bills under review at CIC and post their comments and views. During 2011 CIC also successfully developed the Commissions Logo, Tagline and Lyrics as part of its corporate branding strategy. The tagline for CIC is ‗Utekezaji wa Katiba, Jukumu la wote‟ and the lyrics, in Swahili, go as follows: Katiba yetu ni msingi bora Inaangazia democrasia Na maadili ya kitaifa Ya uzalendo pia na umoja Chini ya unongozi wa busara Bila ubaguzi kwa yeyote Katiba hii ni yetu Na kuitekeleza jukumu la wote Nayo mamlaka ni ya mwananchi Sisi sote tuitelekeze During the fourth quarter of 2011, CIC also commenced the development of a communication strategy that will ensure that implementation process and activities are adequately communicated to all Kenyans.  Offices Since its inauguration the CIC has been operating one office in Nairobi located at Delta House in Westland. This office was inherited The Commission will be relocating to new premises in the first half of 2012. In addition, the CIC, in order to better serve and engage with the public, CIC, in the fourth quarter of 2011, made a policy decision to establish county offices. Accordingly, CIC is developing a framework and modalities to ensure that its services are accessible to the people of Kenya in all the 47 counties. 2.2 Thematic Activities As stated in earlier quarterly reports and in other communications by the CIC, the Commission‘s work is eight (8) thematic areas around which teams, each led by a Commissioner, has been put in place. Thematic teams have, in the last quarter of 2011, undertaken crucial implementation activities towards realization of the mandate of the Commission. This subsection provides an overview of the various activities undertaken by the thematic teams during the reporting period. For each thematic area the report provides an update on the status of Bills or enactment of laws, other activities including engagement with stakeholders, donor support and an overview of the planned activities for the first quarter of 2012. 2.2.1 Activities under the Human Rights and Citizenship Thematic Area A. Development of legislation/policies/procedures During the reporting period, one Bill relating to human rights and citizenship matters was enacted while several Bills underwent review by the CIC. These include:  Kenya Citizens and Foreign Nationals Management Service Bill This Bill was presented and debated in parliament after which it was passed 1st October 2011. The Act provides for reforms in the administration and management of matters relating to births and deaths, identification and registration of citizens, immigration, refugees and marriages as well as the creation and maintenance of a national population register. Since its enactment, the Ministry of State for Immigration and Registration of Persons has informed CIC that the Taskforce on Citizenship and Related provisions of the Constitution has been mandated to develop regulations for implementation of the Citizenship and Immigration Act 2011 and the Kenya Citizens and Foreign Nationals Management Service Act 2011. CIC is awaiting the receipt of the regulations which will be reviewed in accordance with the agreed upon procedure for review of bills and policies.  Registration of Persons, Immigration and Refugees Related Bills The Identification and Registration of Persons Bill 2011, Births and Deaths Registration Bill 2011 and the Refugee Bill 2011 were developed and forwarded to CIC by the Ministry of State for Immigration and Registration of Persons during the fourth quarter of 2011. Although the Taskforce on Citizenship and Related provisions held stakeholder consultations in the development of the bills, it had not held consultations on the actual draft bills. For this reason, CIC resolved to subject the three bills to stakeholder consultations and also undertook field-missions on the provisions of the Refugee Bill 2011. The Identification and Registration of Persons Bill 2011 and the Births and Deaths Registration Bill 2011 are particularly important and 17th February, 2012 THE KENYA GAZETTE urgent in view of the fact that the bills relate to matters linked to elections. The bills are focused on the access to identification documents that are essential for the realization of the right to vote. It is therefore important that the process for obtaining identification documents are streamlined and finalized to facilitate registration of all those eligible to vote in the 2012 general elections. The main issues arising from the review of the two bills included the need to review the bills and formulate a coordinated accurate and credible system of registration for all persons as well as certain aspects considered unconstitutional in the draft Identification and Registration of Persons Bill 2011. Also, in the course of consultations, the idea of a consolidated bill surfaced and it was agreed that CIC would engaged the Ministry of State for Immigration and Registration of Persons to consider this idea. With respect to the Refugee Bill 2011, CIC, in partnership, with the office of the AG and the KLRC and the United Nations High Commission for Human Rights (UNHCR) undertook a field visit to Dadaab Refugee Camps on 4th October 2011 and Kakuma Refugee Camp on 6th – 7th October 2011 to consult with refugee communities and the organizations working with the refugees as well as the host communities on issues relating to the bill. We note that the issues relating to the Refugee Bill are under discussion when the country is at war against the Al-Shabaab and CIC hopes that international principles relating to the protection of refugees will prevail. It is also be important to ensure a balance between protecting the rights of refugees while ensuring that this is not at the detriment of the host community. At the time of the field-missions, Kenya was facing an influx of refugees particularly from Somalia who were fleeing drought situations in their war-torn countries. The mission would therefore not have come at a better time since CIC was able to witness the challenging humanitarian situation in congested camps particularly with regards to women and children. The impact on the host community was also evident. In the interactions, both the host community and the refugees raised particular issues and challenges. The issues and challenges raised by the host community and the refugee communities respectively are as follows:  Issues raised by Host Community: o Insecurity due to the lack of security vetting mechanisms at the border. This was exemplified by abduction of vehicles in the Dadaab area and increased incidences of banditry. o Environmental degradation caused by the influx of refugees with livestock; increased demand for firewood for cooking and depletion of water dams through overconsumption of water. o Erosion of cultural beliefs and practices resulting particularly from the prevalence of relief workers within the regions. o Registration of members of the host community as refugees in order to access basic amenities. This result in the need for deregistration on attaining 18 years of age in order to get Kenya identification papers. o Child labour particularly by refugees in Kakuma Refugee Camp. o Preferential treatment of refugees including ease of access to basic services e.g. health, education. o Employment of Refugees and personnel from other parts of the country without due consideration of the local community.  Issues raised by the Refugee Community: o Lack of a mechanism to address the plight of refugees who have been in the camps for long periods and whose future is uncertain. o Challenges in exercising t mobility rights. Although refugees can access Refugee (‗Alien‘) Cards and can apply for a movement pass that allows them to travel out of the camp to other parts of Kenya most law enforcement officials do not recognise these passes. They are also not able to use their alien cards to conduct normal business activities such as opening and operating bank accounts. o The lack of work permit means that Refugees are forced to engage in illegal trade practices including trading without licenses. o Refugees who work as teachers as well as providers of other service within the camp receive lower pay compared to locals who are undertaking the same work and who are adequately compensated. o The refugee community raised concerns over exploitation and harassment by police officers. The issues arising from the field mission were discussed with the Ministry of State for Immigration and Registration of Persons and also formed the basis for discussion on refugee matters at a stakeholder‘s forum held between the 14th and 18th of November 2011. Overall, due to the immense number and radical nature of contributions made towards the three bills at the stakeholder forum CIC has established a technical committee to review the bills and incorporate the issues raised by the stakeholders. The revised bills will then be subjected to a second stakeholder forum in January 2012. Thereafter, an internal CIC plenary will be held before the bill is forwarded to the AG by February 2012.  Family law related bills There are three bills that came up for review during the fourth quarter of 2011 with relation to family matters. These are the Marriage Bill 2011, the Matrimonial Property Bill 2011 and the Family Protection Bill 2011. There is particular pressure for finalisation of these bills since they touch on a range of issues related to the Bills of rights and gender-relations. On receipt of the bills, CIC posted them on it‘s website and received overwhelming responses from the stakeholders. In light of the great interest and public response to the drafts, the Commission resolved to hold a two-day stakeholder forum between the 31st October 2011 and the 1st of November 2011. The forum attracted the participation of various religious leaders, cultural leaders, women organizations, and the Ministry of Gender, Children and Social Development, among others. Among the key issues that arose from the stakeholder discussions was the need to ensure that the principle of equality is realized in the bills. The stakeholders also noted that although Article 45(4) of the Constitution of Kenya 2010 provides for the legislation to include ―marriages concluded under any tradition, or system of religious, personal or family law;‖ the bills did not adequately provide for the recognition of marriages concluded under the traditional systems and the religious systems including both the Islamic and the Hindu marriages. CIC is currently awaiting the recommendations and proposals from the various religious groups on the minimum principles on marriage in order to review these and other proposals. A technical team comprising representatives from CIC, the Office of the AG, KLRC, the Ministry of State for Immigration and Registration of Persons, Ministry of Gender, Children and Social Development, Hindu Council of Kenya, Supreme Council of Kenya Muslims, Catholic Secretariat, Law Society of Kenya, and FIDA has been established. The technical team has been tasked to review the bills in light of the recommendations and proposals arising from the stakeholder forum. A subsequent stakeholder forum will be held in January 2012 to review the revised bills after which CIC will hold an internal plenary for final review and forward the bills to the AG for further action.  Ratification of Treaties Bill During the third quarter, as reported in that quarter‘s report, the Bill of Rights and Citizenship team processed the Ratification of Treaties Bill. The Bill was however not deliberated upon in Parliament. Within the quarter under review, CIC participated at a stakeholder forum that was organized by Hon. Millie Odhiambo, M.P. to obtain views from stakeholders on issues relating to the Bill. The Bill currently awaits parliamentary review and CIC hopes that the issues highlighted at the stakeholder forum will be considered during the deliberations in Parliament. THE KENYA GAZETTE 17th February, 2012 550 550  Freedom of Information and Data Protection CIC received the Freedom of Information Bill and the Data Protection Bill from the Permanent Secretary in the Ministry of Information and Communication. The Permanent Secretary informed the CIC that the bills had also been forwarded to Cabinet. As part of its review process CIC held consultative meetings with the office of the AG, the KLRC and relevant civil society organisations. In its review, CIC noted that the Freedom of Information is heavily focused on the establishment, functions, powers and financing of a Freedom of Information Commission, which has the effect of compartmentalizing human rights notwithstanding their inter-related and indivisible nature. CIC also noted the need to consider consolidation of the two bills into one as well as the need to establish a more suitable enforcement mechanism for the right of access to information. CIC was also informed that the International Commission for Jurists (ICJ) had developed a separate Freedom of Information Bill. To address the above issues, among others, CIC held meetings with the Ministry of Information and Communication to discuss the way forward. These issues also formed the basis for discussion at a technical forum that brought together a targeted group of stakeholders on 4th November 2011. The forum also served as a platform to consider the amalgamation of the bills from the Ministry of Information and Communication and the version from the ICJ. The forum agreed upon the need to constitute a technical committee to review and redraft the bill subject to the deliberations. The technical committee held a retreat on 5th – 6th December 2011 to review the bills, which have been revised pending stakeholder consideration in February 2011. An internal plenary will be held before the bill are forwarded to the AG.  Consumer Protection Bill 2011 Under the Fifth Schedule to the Constitution a consumer protection law is to be developed within four years following the promulgation of the Constitution. On 9th September 2011 the Hon. Jakoyo Midiwo, M.P, Consumer Protection Bill was published as a private members bill. Although this Bill was not scheduled for review in this quarter, it drew the attention of the thematic team. CIC was advised that the Bill had initially been presented before parliament prior to the promulgation of the Constitution and had also been scheduled in the order paper. CIC, while recognizing the legislative authority of members of parliament to generate private members bills held consultations with the Honourable Member on the need for public participation in the formulation of the Bill. Thereafter, CIC mobilized stakeholders from various sectors on short notice for a two-day stakeholder forum that was held on 7th – 8th December 2011 to review the issues arising from the Bill. Among the key issues identified by the stakeholders was the need to ensure that all the provisions relating to Article 46 of the Constitution (consumer rights) are adequately addressed and, in particular, Articles 46(c) and (d). It was noted that this could be done using the outline provided by Article 46 itself. Secondly, it emerged that the movers of the bill were interested in providing protection to particular sectors and to this extent, the Bill was heavily focused on protection of consumers in specific sectors to the exclusion of others and in this regard it was proposed that the Bill should focus on the principles relating to consumer protection in general as opposed to a sectoral approach. By the end of the stakeholder forum it was clear that the Bill needed to be subjected to further consultation. In this context, CIC is currently in discussions with Hon. Midiwo to allow for further consultation and input into the Bill. Follow-up will take place in the first quarter of 2012.  National Policy and Action Plan on Human Rights One of the policies that CIC received from the Ministry of Justice, National Cohesion and Constitutional Affairs within the last quarter was the National Policy on Human Rights. CIC reviewed the policy against the human rights principles in the Constitution and international human rights treaties to which Kenya is a party. Among the key the findings from the audit of the policy is that the policy does not adequately reflect a rights-based approach as contemplated in the Constitution of Kenya 2010. The methodology adopted gives precedence to international instruments to the detriment of the Bill of Rights contained in the Constitution. The audit also noted that the Policy does not contemplate a role for the counties which are a central feature in the new structure of the state and hence a critical part of ensuring the realisation of human rights. CIC participated at a one-day forum organized by the Ministry of Justice, National Cohesion and Constitutional Affairs on 1st December 2011 and made recommendations along the above lines. In particular, CIC suggested that the following issues be taken into account in the revision of the Policy.  The Constitution of Kenya is rights-based and the Policy should outline all the rights enumerated in the Constitution including socio-economic rights and provide the government‘s position with regards to their implementation. In this regard, the Policy should be an overarching document on human rights since implementation of human rights is a mandate for all. This therefore requires that as far as possible the National Policy on Human Rights is cross-referenced with the Vision 2030 and shared to all implements who will appreciate their role in the implementation of human rights as they do the Vision 2030.  The policy should set out, in as detailed a fashion as possible and with the necessary nuance, the issues, programmes and the approaches that the two levels of government, that is the national and county, will pursue to fulfil obligations relating to each right.  Because of the nature of the policy, as a government document, and the government as the bearer of the bulk of the obligations relating to human rights should provide an interpretation of what the government perceives the Bill of Rights and relevant provisions demand of it. It thus must outline specific issues goals to be achieved, standards to be met, among other issues.  With regard to the rationale for the Policy, the framework should clarify the state actors that bear duties and should proceed on the basis that the Bill of Rights binds all organs of the state subject to Article 19 of the Constitution. The Policy should also be sensitive to the fact that the Constitution is underpinned by certain fundamental values and principles, which should be incorporated in the policy. CIC also noted that the policy should take into account other sections of the Constitution including those relating to leadership and integrity, representation of the people, devolved government, public finance, public service and national security. Other considerations suggested by the CIC include the need for (i) broad formulation of the government‘s position and what is to be pursued with respect to each right; (ii) Constitutional obligations and international obligations relating to the right; (iii) Relevant Legislation in which the policy should list relevant laws and set out a plan for legal reform required; (iv) Designate the implementers; (v) Broad statement on challenges and how these are to be addressed; (vi) Resources (including institutional and human) and budgetary requirements. B. Other activities under the human rights and citizenship thematic area The human rights and citizenship thematic team also undertook a range of other activities in the fourth quarter of 2011. Among others these included:  Elaborating a Roadmap for the implementation of Socio-Economic Rights As part of the efforts to get the executive to implement its obligation under Article 21 on putting in place the mechanism for the progressive realization of socio-economic rights, the thematic team met with two ministries (the Ministry of Finance and Ministry of Education) in addition to CIC‘s meeting (mentioned in part 2.1 above) with the Prime Minister. During the meetings, it was clear that both ministries appreciate the need to refine the planning and budgeting processes in order to achieve the delivery of the Article 21 responsibility. The Ministry of Finance was particularly keen on a mechanism that would facilitate coordinated and joint planning of the different sectors to ensure optimum and prudent use of resources for better service delivery that will ensure progress in the achievement of socio- economic rights. CIC is hoping to meet with more ministries and also for an appointment with His Excellency the President to discuss the issue of 17th February, 2012 THE KENYA GAZETTE socio-economic rights. Overall, the hope is that the following issues, which formed the basis for discussion with the two ministries, will guide the approach to the implementation of Article 21.  The responsibility to implement the Bill of Rights, including socio-economic rights, is immediate. The state must therefore begin the process of ensuring that the mechanism for facilitating the enjoyment of these rights is put in place without delay.  Socio-economic rights as provided in Article 43 of the Constitution and the relevant ratified international treaties are to be achieved progressively. In the view of CIC, reference to progressive realisation is not an excuse to postpone action; instead it requires immediate action for the state to organize its planning and budgeting in such a way as to achieve progress in facilitating access by more Kenyans (eventually all) to each of the rights provided in this Article and the relevant treaties (the right to health; right to accessible and adequate housing and reasonable standards of sanitation; freedom from hunger and to have adequate and of acceptable quality; right to clean and safe water; right social security and the right to education).  Because the Bill of Rights is immediately applicable, there is a danger of litigation by the citizens against the state with respect to socio-economic rights at any time. This might result in confusion on measures that may be undertaken with respect all the different socio-economic rights. Immediate pro-active measures to forestall such a situation are therefore needed.  Socio-economic rights require resources to be realised and therefore the obligation to implement these rights must be interpreted together with the obligation to ensure equitable distribution of resources in chapter 12 of the Constitution. This means that the development planning, sectoral planning and the budgeting process have to be coordinated in such a way as to ensure progressive access of socio- economic rights by all Kenyans.  To achieve equity, there is a need to institute a number of steps including the (i) mapping of the county by county and region on access levels to the different rights; (ii) determination of access needs by county; (iii) determination of priorities by county; (iv) planning of national resources using this information; (iii) equitable allocation including of the equalisation fund. This distribution is expected to result in a clear roadmap to demonstrate how each of the rights will progressively be achieved.  County governments are principally charged with service delivery and can therefore provide the principle interface for the realisation of social-economic rights. Therefore in preparation for transition to county governments, key government departments whose mandate include implementation of socio-economic rights and other relevant stakeholders should engage in resource and productivity mapping which will inform planning for transition to county governments.  It is important for the government to adopt programmes that will trigger economic growth and create the resources necessary to realise socio-economic rights. This is because unless wealth is created, resources may not be available to channel to the programmes and activities that will facilitate the progress in the realization of the social-economic rights.  Development of a guide for the implementation of human rights The human rights and citizenship thematic team commenced, during the reporting period, the process of developing an implementers manual that will guide implementers on how to integrate human rights in policies, laws and apply the rights approach in administrative procedures. The manual is intended to give general guidance to the implementation of the Constitution of Kenya 2010, which is anchored on human rights principles. The development of the manual will be undertaken in consultation with other stakeholders. The finalisation of this manual is expected in the second half of 2012.  Engagement with Other Bodies The CIC, through the human rights and citizenship thematic team was invited to address and participate in a range of human rights related activities of other organizations including the Stakeholder Forum Organized by the National Aids Control Council (NACC) and the United Nations Joint Programme on HIV/AIDS (UNAIDS) to celebrate the courage and role played by women living with HIV in Kenya. The thematic team presented on the opportunities in the Constitution for women including those affected and infected with HIV. The Commission was also invited to participate in the panel discussion during the Kenya Human Rights Commission (KHRC) annual lecture on 9th December 2011 as part of its activities towards the human rights day celebrations. The lecture this year was on the topic ―Constitutionalism and Judicialism: Ideologies of Kenya‘s new Constitution‖- By the Hon. Justice (Prof) J.B. Ojwang. The contribution of CIC focused on the need for vigilance to ensure Constitutional implementation in all sectors. C. Donor support The work under this thematic area received donor support for some of its activities in the fourth quarter of 2011 from GIZ, IDLO, UNHCR and IRC. D. Activities planned for the first quarter of 2012 The activities planned in the human rights and citizenship thematic area for the first quarter of 2012 include:  Finalization of the review of the Freedom of Information and the Data Protection bills.  Finalization of the review of the Births and Deaths Registration 2011, the Identification and Registration of Persons 2011 and Refugee Bill 2011.  Finalization of the review of the Marriage Bill 2011, the Matrimonial Property Bill 2011 and the Family Protection Bill 201.  Continuation of activities relating to the development implementers manual.  Continuation of activities towards the development of standards on socio-economic rights.  Finalization of the review of the Consumer Protection Bill.  Continuation of activities relating to the development of the Bill on Public Participation.  Stakeholder forum on human rights approach and socio- economic rights. 2.2.2 Activities under the Land and Environment Thematic Area The Land and Environment thematic area draws its mandate from chapter five of the Constitution, which provides the framework and principles with regards to Lands and Environment. The following ministries which deal with aspects of land and environment issues are the principle focus of the work under the thematic area: the Ministry of Land, the Ministry of Environment and Mineral Resources, the Ministry of Forestry and Wildlife, the Ministry of Water and irrigation, Ministry of Livestock Development, the Ministry of Northern and Arid Lands, the Ministry of Regional Development, and the Ministry of Tourism. During the fourth quarter of 2011 the land and environment thematic team undertook various activities including with respect to the development of laws, policies and administrative procedures as well as engagement with stakeholders. An overview of the various activities follows below. A. Development of legislation/policies/procedures  Land Bills and Policy On 9th December 2011 the CIC received the Land Bill, 2011 and the Land Registration Bill, 2011. The Bills are due for enactment within 18 months from the date of promulgation of the Constitution that is by 27th February 2012. The Bills are intended to give effect to Article 68 of the Constitution, to revise, consolidate and rationalize land laws; to provide for the sustainable administration and management of land and land-based resources, to revise consolidate and rationalize the law governing the registration of title to land and to regulate land dealings in registered land respectively. The bills are currently undergoing internal review at CIC, will be subjected to further stakeholder input directly and through the media to get views and comments of the people of Kenya. The Commission has scheduled various activities such as county visits and stakeholder THE KENYA GAZETTE 17th February, 2012 552 552 consultations to ensure broad and robust public participation on the legislation on land. Additionally, during the fourth quarter of 2011, CIC, with the support of WWF has commissioned a consultant to review and revise the National Land Policy to align it with the Constitution. The thematic team, with the support of IDLO, has also commissioned an additional consultant to assist the Commission to consolidate and ensure integration of the various policies, bills and administrative procedures from the various ministries, departments and parastatals within the environment and natural resources sector. This will entail liaising with the sector actors to effectively map out their planned initiatives and focus these to bring about conformity and coherence in their policies and legislation. The Consultant will also be responsible for facilitating internal as well as external discussions and debate on the status and future direction of environment and natural resources sector in the country. B. Engagement with stakeholders During the reporting period the land and environment thematic team continued to engage various stakeholders. These included:  Stakeholder Consultations on the National Land Commission Bill The thematic team held two stakeholders meeting with Ministry of Land and all the other relevant ministries respectively on the Land Commission Bill. The objective of the meetings was to assess the Bill and address any gaps or areas for improvement that may be necessary in bringing the Bill into conformity with the Constitution. The team also held a Roundtable on the National Land Commission Bill with the AG, KLRC and the Ministry of Lands to finalize the bill and address any outstanding issues before submitting to Parliament for tabling.  Stakeholders Consultation on the Management of Land and Natural Resources, Devolution, and Public Participation The thematic team also conducted a two-day stakeholders consultation in Garissa County to discuss the management of land and natural resources under the devolved system. Participants engaged in robust discussions over how land and natural resources should be utilised to ensure sustainable administration of land and natural resources and to address historical injustices relating to land and natural resources. C. Donor support WWF Eastern Africa Regional Office continued to support the Commission in providing technical and financial support to make enable civil society input into the Constitution Implementation process in the area of land and the environment and review of specific policies during the reporting period. Further donor support was received from IDLO. D. Activities planned for the first quarter of 2012 The activities planned in the land and environment thematic area for the first quarter of 2012 include:  Organizing additional stakeholder forums on the Lands Bill and the Land Registration Bill.  Undertaking County visits to ensure broad and robust public participation on the review of the land and natural resources related bills and policies.  Holding consultative meetings with the Ministry of Lands on the Land Policy.  Harmonising the existing policies, legislations, and administrative procedures in the environment and natural resources sector. 2.2.3 Activities under the Public Service and Leadership Thematic Area These values and principles include; accountability and transparency, fair competition and merit based appointment, adequate and equal opportunities for men and women, members of all ethnic groups and persons with disabilities. It is in this context that Chapter 13 of the Constitution establishes the Public Service Commission (Article 233), and gives it its functions and powers in Article 234. Staffing of county governments is covered in Article 235 and 236 on protection of public officers. During the first three quarters of 2011, the Ethics and Anti- Corruption Commission Act was enacted. In the fourth quarter, the public service and leadership thematic team continued to work on various legislative and policies issues and to engage stakeholders. Some of the team‘s key activities during this period include: A. Development of legislation/policies/procedures  Public Service Commission Bill CIC received the Public Service Commission Bill from the AG‘s in the fourth quarter 2011. Thereafter the thematic team held consultative meetings with the Ministry of State for Public Service on 12th October, 2011, KLRC and Ministry of State for Public Service on 16th November, 2011 and the Public Service Commission on 10th October, 2011. Following the consultative meetings, a stakeholder forum was held on 7th December 2011 at Kenya Institute of Administration. Participants gave their input in ways in which the Bill should be improved to adhere to the letter and spirit of the Constitution. The next step will be review the Bill at a CIC plenary after which the Bill and suggested changes will be forwarded to the AG.  Public Service Management Bill Since public officers fall under the Public Service Commission, the Parliamentary Service Commission, the Judicial Service Commission and the county public services, CIC considers it prudent to develop a general law on public service for Kenya so that all public officers are guided by the same principles and that there can develop a general public service culture at all levels. To this end, CIC has requested the three commissions to be engaged in the development of a Public Service Management Bill. The aim of the Bill is to provide broad guidelines to cover issues relating to entry into, expected behaviour while in office and exit of public officers.  Review of the State Corporations Act, Chapter 446 of the Laws of Kenya The thematic team, in conjunction with the State Corporations Advisory Committee, participated in reviewing the State Corporations Act, Chapter 446 of the Laws of Kenya to ensure compliance with the Constitution during the last quarter of 2011. The State Corporations Advisory Committee has since developed a draft policy after which they shall develop legislation in line with the policy. This process is aimed at aligning the legislation with the Constitution and streamlining the State corporations sector to ensure increased efficiency and accountability towards achieving vision 2030.  Guidelines on recruitment of public officers During the quarter, the Commission‘s judiciary and constitutional commissions and representation of the people and legislature thematic teams collaborated with the public service and leadership thematic team to develop guidelines on the recruitment process of all public officers at both the national and county level in the public service. It is expected that these guidelines will ensure that the recruitment process will be in line with Articles 10 and 232 of the Constitution. The draft guidelines will be availed to the relevant Commissions and the Ministry of State for Public Service for their input and review. B. Engagement with stakeholders and other activities under the thematic area During the reporting period the public service and leadership thematic team held other meetings with various stakeholders and undertook a number of other activities. These included:  Meeting with the Public Transformation Department in the Office of the Prime Minister On 6th October 2011, the thematic team on public service and leadership convened a meeting with the Public Transformation Department in the Office of the Prime Minister. The purpose of the visit was to better understand the work being undertaken by the 17th February, 2012 THE KENYA GAZETTE department in relation to Public Service and to be informed of their involvement in public sector reforms. CIC emphasized the fact that reforms in public service have to be taken seriously in order for charge to be effected in the public service in line with the Constitution. It was agreed that CIC would work closely with the department and other stakeholders to ensure that this happens.  Engagements with Civil Society On 11th November 2011, CIC attended a breakfast meeting hosted by the Association of Professional Societies in East Africa (APSEA) to discuss one of the possible tools and content of the public service legislation. In addition on 22nd November 2011, CIC attended a workshop, hosted by the Legal Resources Foundation Trust (LRF) and National Council of Churches of Kenya (NCCK) to discuss stakeholder‘s input on the legislation. C. Activities planned for the first quarter of 2012 The following are the planned activities in the public service and leadership thematic area for the first quarter of 2012.  Completion of the review process of Public Service Commission Bill.  Review of the Anti-Corruption and Economic Crimes Act to ensure that it adheres to the letter and spirit of the Constitution.  Consultative engagement with the relevant stakeholders in the development of the Public Service Management Bill.  Engagement with Ministry of Justice, National Cohesion and Constitutional Affairs in the development of Legislation on Leadership (Article 80) and the review of the National Value System as developed by the Taskforce of National Values.  Engagement with the Ministry of State for Public Service in the development of legislation that gives full effect to Values & Principles in Public Service (Article 232). 2.2.4 Activities under the Representation of the People and the Legislature Thematic Area The objective of the Representation and the Legislature work 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, in parliamentary affairs, and in other departments are consistent with the letter and the spirit of the Constitution. In the fourth quarter of 2011 the thematic team continued work on the legislation and policies and to engage with various relevant stakeholders. The various activities undertaken by the team are as follows: A. Development of legislation/policies/procedures  The Campaign Financing Bill, 2011 In the fourth quarter of 2011 CIC, through the representation of the people and the legislature thematic team began to review reviewing the Campaign Financing Bill, 2011. The Bill seeks to put a limit to the funds used during campaigns for elections, including the in the nominations, the general and by- elections, and for referendum campaigns. The Bill also provides for the specifics of managing funds during any election or referendum campaign. With the 2012 general elections coming up it is critical that this law is put in place in a timely manner. Overall, the law needs to be in place by 27th February 2012.  Policies and Regulations relating to Election Laws CIC did not have a chance to examine the policies that informed the development of the Independent Electoral and Boundaries Commission (IEBC) Act 2010, Elections Act, 2011 and the Political Parties Act 2011. In order to fully understand these Acts, the CIC needs to have access to the relevant guiding policies. Consequently, the thematic team wrote to IEBC and the Registrar of Political Parties requesting them for the policies that informed the development of these laws. The two offices were also requested for the regulations that they have developed with respect to the IEBC Act, Elections Act and Political Parties Act and their plans of action for the period up to the next general elections. The Parliamentary Service Commission was also asked to provide CIC with a list of the policies, legislation and plans being prepared with respect to elective bodies. To date, CIC still awaits response from IEBC and the Public Service Commission on the same. The Registrar of Political Parties did respond but did not provide the documents requested for. B. Engagement with stakeholders and other activities under the thematic area During the fourth quarter of 2011 the representation of the people and legislature thematic team held various meetings and engaged with various stakeholders. The team also undertook a number of other activities. These included:  Parliament and the Parliamentary Service Commission The thematic team made efforts to have meetings with the Public Service Commission and Parliament so as to agree with them on how to work with the CIC. We also did request PSC to share with CIC their plans of action. The team was however unable to secure the necessary appointments during the quarter.  The IEBC CIC, through the representation of the people and legislature thematic team, also requested for a meeting with the IEBC during the reporting period. One of the objectives of the meeting being sought was to discuss the draft framework that has been elaborated by the thematic team on how the CIC can monitor the implementation of the laws and constitutional requirements relating to elections. An appointment could not, however be secured with the IEBC during the quarter. This will be followed up in 2012.  Registrar of Political Parties Similarly, the CIC requested for a meeting with the Registrar of Political Parties to discuss any policies and the plan of action with respect to the registration, regulation, monitoring, investigation and supervision of political parties, and the application of the Political Parties Act, 2011, in readiness for the general elections in 2012. As in the case of the Parliamentary Service Commission and the IEBC this meeting did not happen during the quarter and an appointment will be sought in the new year.  Engagement with the Youth The thematic team, during the fourth quarter of 2011, developed a draft strategy on how to engage the people of Kenya and different stakeholders for the implementation of the constitution with specific focus on elections. The thematic team has already had initial engagements with the media and began to make efforts to engage the youth as specific stakeholder. To do this, the thematic team is working on developing a specific youth focused strategy in the first quarter of 2012.  The 6th Electoral Institute for Sustainable Development in Africa (EISA) Symposium On the 23rd and 24th November 2011, CIC, through the representation of the people and legislature thematic team, attended the 6th EISA symposium. The symposium brought together key stakeholders in the democracy movement across the African continent and beyond and provided a platform to share experiences and learn from best practices on the use of ICT in promoting political change in Africa, and in particular, as relates to elections. The stakeholders included representatives from civil society organizations, political parties, academia, continental and regional economic communities, international donor agencies and international NGOs. As relates to Kenya, the IEBC Chairperson, Mr. Ahmed Isaack Hassan, who spoke at the symposium, noted that major strides had been made by the country in the use of ICT in elections, especially as relates to the transmission of election results as was witnessed during the 2010 Constitutional referendum. While noting that actual electronic voting could not be achieved in time for the 2012 general elections, Mr. Hassan stated that this was a goal towards which IEBC would work to achieve by the 2017 general election. The forum‘s main conclusion was that computerisation of the electoral system generally reduces elections fraud. Therefore, CIC will continue to monitor the progresses being made by IEBC to ensure country wide electronic registration and electronic results transmission in the 2012 THE KENYA GAZETTE 17th February, 2012 554 554 general election process, as well as the steps being taken to ensure the eventual realisation of actual electronic voting by 2017.  The Catholic Diocese of Kisii The Catholic Diocese of Kisii wrote to CIC and requested CIC to go and talk to leaders of the region (heads of parish councils, priests, head teachers of Catholic schools, etc.,) on the implementation of the Constitution with a specific focus on devolution and elections. In this context, on the 7th of December 2011, the representation of the people and the legislature thematic team, in conjunction with the devolved government thematic team participated in a forum hosted by the Kisii Catholic Diocese as noted in the report on the Commission-wide activities in part 2.1 above. On the 9th of December 2011, the thematic area met with representatives of women in the Diocese. Some of the issues discussed included security problems, poor health facilities and services, lack of learning at government schools, water problems, violence in homes and in the communities, changaa issues, harassment from the police, environmental issues, poor roads, youth unemployment, land problems and general poor service delivery from the government. C. Activities planned for the first quarter of 2012 The following are the planned activities in the representation of the people and legislature thematic area for the first quarter of 2012.  Organise a forum for 18-25 years old people to develop a strategy on how that age-group may be involved in the implementation of the Constitution and specifically, in the electoral process.  Continue to monitor the legislative process of the Campaign Financing Bill; and together with the public service and leadership and judiciary and the constitutional commissions thematic teams, monitor the public service management bill and the bill on the assessment of those who wish to be selected into public service.  Monitor the process of delimitation of electoral boundaries, registration of voters and the general preparations for the realisation of a transparent and accountable electoral process for the next general election by IEBC.  Monitor the implementation of the Political Parties Act, 2011.  Follow up on the progress made by media stations in their role in the implementation of the electoral process as per the new dispensation.  In conjunction with the judiciary and the constitutional commissions thematic team, work to monitor the progress made in the establishment of courts and/or judges to handle election petition from the 2012 general elections. 2.2.5 Activities under the Executive and Security Thematic Area The fourth quarter of 2011 saw some significant events that impacted on the implementation of the Constitution in the thematic area. First, a key change was the appointment of the sixth AG of Kenya as required by Article 156 of the Constitution in late August 2011. The office of the AG is a key implementation partner of the CIC under section six of the Sixth Schedule to the Constitution and Article 260(4) and the level of capacity, professionalism and the policy direction of that office, has the potential to either advance and promote effective implementation or impede the progress of implementation. Secondly, the engagement of Kenya‘s Defence Forces (KDF) in the fight against Al Shabaab has required various implementing agencies to justifiably prioritise this issue that is critical to national security. This has affected the level of engagement between CIC and implementing agencies on matters relating to implementation of the Constitution. The core concern of the thematic area remains ensuring that the values and principles of the Constitution with respect to the executive and security sector are respected and upheld, both in letter and spirit. The Commission has employed tremendous effort in ensuring this is achieved. During the reporting period the thematic team continued work in this direction. A. Development of legislation/policies/procedures  Rules and Procedure in the Presidency and Cabinet Office During the fourth quarter of 2011 the Commission is currently reviewing the existing administrative rules and procedures that were submitted to it by the Office of Cabinet Affairs for compliance with the Constitution. During the reporting period, the CIC also requested a meeting to discuss the progress on the implementation measures being undertaken by the Presidency and the Office of Cabinet Affairs and is awaiting confirmation of a date. Some of the issues the Commission is interested in discussing relate to the measures put in place by the office of Cabinet Affairs to operationalise the values and principles of the Constitution, the principles of executive as stipulated under Article 129 and other transitional arrangements. While Articles 129-155 of Chapter nine of the Constitution are suspended, it is important that the administrative procedures that shall ensure compliance with the Constitution immediately after the first elections are reviewed or developed to ensure for smooth transition. These procedures will relate, among others to the role and function of non-elected cabinet secretaries, principal secretaries and the reporting lines between those offices to give effect to Articles 129,152-155.  Assumption of the Office of the President Bill The Assumption of Office of the President Bill is yet to be formally submitted to the Commission for review. Nonetheless, during the fourth quarter of 2011, the Office of the President, invited the Commission to a stakeholders forum on the 29th November 2011, where the Bill was discussed. The thematic team has reviewed the Bill that has been publicized on the official website of the Office of Cabinet Affairs and is awaiting the final draft to enable the Commission to undertake a formal review.  Legislation/Policies and Procedures relating to Kenya Defence Forces Article 239(6) provides that Parliament shall enact legislation to provide for the functions, organization and administration of the national security organs. Additionally, the Fifth Schedule to the Constitution requires that the legislation envisaged under Article 239(6) shall be enacted within the two years after promulgation. It is in this context that the executive and security thematic team sought appointments with the Kenya Defence Forces (KDF) and the Ministry of State for Security to discuss, among other issues, the implementation of Chapter Fourteen of the Constitution and in particular, measures being put in place to implement Articles 241 in conformity with the principles of national security set out in Article 238, the development of legislation envisaged under Articles 239(6) and 241(7) of the Constitution. The team met the KDF on the 21st November 2011 at which KDF provided an overview of the working draft of the Kenya Defence Forces Bill. Regrettably, although the Commission‘s intention was to also have an overview of the progress on other measures being put in place by the KDF, including procedures and policies, these were not discussed.  National Coroners Service and Private Securities Regulation Bill The CIC, led by the thematic team on the executive and security successfully concluded the review of the National Coroners and Private Securities Regulation bills in the last quarter of 2011. This followed a successful process of soliciting views from stakeholders, including through a meeting on the 7th November 2011 the Thematic with the Ministry of State for Medical Services, specifically, the pathologists in the ministry, to discuss National Coroners Service Bill. Various issues were raised and comments on how best to improve the Bill were made.  Implementation of the National Police Service Act The publication of the National Police Service Commission Act was an important milestone in the implementation of the constitution. During the fourth quarter of 2011 the thematic team focused on the process of appointing commissioners. In this regard, the CIC communicated to the National Police Service Commission selection panel urging the panel to ensure that the principles and values in the Constitution, and in particular Article 250(4) are upheld in the process. The thematic team also followed up on the publication of the Act and 17th February, 2012 THE KENYA GAZETTE the establishment of administrative procedures to operationalize the Act. In this context, on 21st October 2011 the thematic team met the Directorate of Criminal Investigations to discuss, among other issues, the restructuring of the Directorate. During the meeting, the Directorate also shared their comments on the National Security Council Bill, National Intelligence Service Bill, National Coroners Service Bill and Private Securities Regulation Bill. Following the enactment of the National Police Service Act the executive and security thematic team, in the fourth quarter of 2011, also focused its review work the existing Standing Orders to verify their conformity with the Constitution, the National Police Service Act and the National Police Service Commission.  Implementation of the Independent Policing Oversight Authority Act The Independent Policing Oversight Authority Act has been enacted. However, like in the case of the National Police Service Act, the Act is yet to be published. CIC is very concerned that the Act has not been published and, most importantly, that the Authority has yet to be established. The importance of the establishment of the Independent Oversight Authority cannot be overstated. The Act provides for a mechanism to hold the police accountable to the public in the performance of their functions, including with respect to matters of professionalism and discipline, transparency and accountability. Additionally, the Act provides for a mechanism of ensure independent oversight of the handling of complaints by the Service. Consequently, although the Act is place, the thematic team continued to focus on this matter in the last quarter of 2011.  Vetting of State and Public Officers Bill Key security organs, including National Intelligence Service and National Police Service, are significantly involved in the vetting of the State and public officers. This raises important concerns, including the fact that, for example, police officials are themselves yet to be vetted and that these services can unduly influence the process of vetting. To ensure credible and transparent vetting processes the thematic team on the executive and security considers that it is critical to develop guidelines and/or legislation on vetting. It is in this context that the Vetting of State and Public Officers Bill has come up. As part of its efforts in this area, the thematic team met, on the 21st November 2011 with the Legal Resource Foundation Trust (LRF) to discuss, among other things, the vetting score card. Further, the team, together with the judiciary and constitutional commissions and the representation of the people and legislature thematic teams, met the Association of Professional Societies in East Africa (APSEA) on 11th November 2011 to discuss the State Officers Vetting Guidelines Bill. The Bill, formulated by APSEA, proposes a framework to guide the vetting of state officers. Further consultations are expected to address the concerns raised in the meeting. B. Engagement with stakeholders and other activities under the thematic area In addition to the work and meetings related to legislations, policies and administrative procedures, the executive and security thematic team also continued to make efforts to engage with various stakeholders during the reporting period. Among others, these efforts included engagement with:  The AG Article 156 of the Constitution provides for the office of the AG, who is the principal legal adviser to the Government. The AG, being part of the Executive is bound by the values and principles enshrined in the Constitution. During the period under review, the Commission persistently sought appointments to discuss the implementation of Article 156 with the office of the AG, in vain. Some of the issues that the Commission wanted to address included how the AG is and shall promote, protect and uphold the rule of law and defend the public interest; the administrative procedures put in place to ensure accountability and proper reporting mechanism within the office of the AG and by the AG to the Cabinet, President and Parliament as required under the Constitution. The CIC was also interested to know the role of the AG in the development of government policies and the extent to which the Acts of Parliaments (including subsidiary legislation, and other administrative measures that the AG administers) conform to the letter and spirit of the Constitution and the extent to which the office of the AG is operationalising the provisions of Article 35 on the access to information and measures to promote public participation in the development of legislation as envisioned in Article 10 of the Constitution. Regrettably the Office of the AG was not keen to meet the Commission in as far as its role as an implementer of the Constitution was concerned. The refusal or failure for the AG to submit a progress report or meet to discuss the same is a matter of significant concern to the Commission. While the AG has a role in implementation in relation to the preparation of legislation, the office of AG as a State organ including the departments that constitute the office is an implementing agency. As such, CIC in exercise of its mandate to monitor, facilitate and oversee the development of legislation as well as administrative procedures is required to report on the progress of implementation of the Constitution within the office of the AG. The reluctance of the office of the AG to cooperate is a recent development and was not the case until the appointment of the new AG in August 2011. The claim by the AG that the office of the AG was in existence before the 2010 Constitution has also created some uncertainty as to whether the office is operating under the old dispensation or the new one.  The Director of Public Prosecutions Article 157 of the Constitution provides for the establishment of the Office of the Director of Public Prosecutions (DPP). As part of the Commission‘s mandate to oversee, facilitate and monitor the implementation of the Constitution, the Commission, during the last quarter of 2011, made several attempts to meet the DPP. Regrettably, the Commission did not secure an appointment before the end of the year. It is well accepted that the Office of the DPP requires major reforms to conform to the Constitution. The fact that the Constitution delinks this important office from the Office of the AG is, in itself, a very significant paradigm shift from the old dispensation and as such the Commission considers it critical, to monitor, facilitate and oversee, among other issues, the implementation of Article 157 of the Constitution, especially the exercise of the functions and powers of the DPP, the relationship and administrative measures put in place to ensure and guide the relationships between the DPP and the Inspector- General of the National Police Service, the AG, Parliament, Independent Policing Oversight Authority (IPOA), constitutional commissions, the Ethics and Anti-Corruption Commission (EACC), National Police Service Commission (NPSC), Kenya National Human Rights Commission (KNHRC), among others agencies and offices.  National Intelligence Service Article 242 of the Constitution establishes the National Intelligence Service, which is responsible for security intelligence and counter intelligence to enhance national security in accordance with the Constitution and may perform any other function conferred on it by an Act of Parliament. In the fourth quarter of 2011, the thematic team on the executive and security had successful meeting with the National Intelligence Service. The meeting took place on 13th October 2011. The purpose of the meeting was to discuss the implementation of the Constitution generally, and, in particular, Chapter Fourteen of the Constitution among other issues. The Commission also sought to know the position on the development of the National Intelligence Service Bill pursuant to Article 239(6) of the Constitution. The National Intelligence Service responded by taking the thematic team through the various facets of the working draft of the Bill. The thematic team was also appraised on the progress being made by the Service in the implementation of the Constitution. The cooperation of the Director General and internal implementation committee is to be commended. The Commission encouraged the intelligence agency to be more transparent, ensure application of Article 31 on right to privacy and 35 on access to information. C. Donor support During the reporting period, the executive and security thematic area received support from IDLO and UNODC. This support was in the form of technical support involving these agencies engaging security experts/consultants who assisted the thematic team in reviewing the security related Bills. THE KENYA GAZETTE 17th February, 2012 556 556 D. Activities planned for the first quarter of 2012 In the first quarter of the year 2012, the planned activities in the executive and security thematic area are:  Engage stakeholders on the National Coroners Service Bill, Private Security Industry Regulation Bill, National Security Council Bill and National Intelligence Service Bill; hold consultative meetings with security organs, namely the National Police, Kenya Defence Force, National Security Council on the training institutions and other administrative measures.  Upon submission of the Kenya Defence Forces Bill, finalise, review and submit to the AG‘s office for finalisation.  Auditing of the existing administrative measures including, policies and guidelines and work with the implementing partners in the formulation of the administrative measures, including regulations required under the National Police Service Act, National Police Service Commission Act and Power of Mercy Act.  Organise meetings with the Office of the President, AG, DPP, Ministry of State for Defence, Ministry of Foreign Affairs, Inspector General of Police, amongst other Executive and Security organs to discuss their implementation plans.  Conduct County visits to hold forums with county-based stakeholders on the draft Bills under Chapter Nine and Fourteen of the Constitution. 2.2.6 Activities under the Judiciary and Constitutional Commissions Thematic Area This thematic area is concerned with the constitutional establishment and/or institutional reform of the judiciary and constitutional commissions as respectively provided in Chapter Ten and Fifteen of the Constitution of Kenya, 2010. During the last quarter of 2011 the thematic team on the judiciary and constitutional commissions undertook various activities related to the enactment and/or amendment of legislation, policy development or review, and formulation of administrative and continued to engage relevant stakeholders. A. Development of legislation/policies/administrative procedures  Teachers Service Commission Bill, 2011 Article 237 of the Constitution substantially changed the status of the Teachers Service Commission (TSC) from a semi-autonomous government agency under the Ministry of Education to a constitutional commission. In order to align the Teachers Service Commission Act with the new constitutional provisions, TSC constituted a specialized technical team to prepare a new law. The technical team completed its review of the TSC Act and developed a draft TSC Bill that was then submitted to CIC. In carrying out its review of the Bill, the thematic team on the judiciary and constitutional commissions held a stakeholders‘ forum at Kenya Utalii College on 15th November 2011 to gather input from stakeholders and submitted the Bill to the a CIC plenary meeting held on 23rd November 2011. Following the plenary meeting, the Bill was submitted to a legislative draftsman at the KLRC look at issues relating to technical and legal soundness.  Other Legislative Work on Constitutional Commissions In addition to the TSC Bill, the thematic team also contributed to the work on the National Land Commission Bill, 2011 and the Public Service Commission Bill, 2011. The details of the work undertaken on these bills are reported under the land and environment and public service and leadership thematic areas. B. Engagement with stakeholders In October 2011 the CIC participated in a series of advocacy and training workshops for legal practitioners, government officials, commissioners and human rights activists with the view to promoting the adoption of comprehensive anti-discrimination legislation, organised by the Kenya Human Rights Commission (KHRC) in collaboration with Equal Rights Trust (ERT). The Commissioner Mwaisaka and Laibuta attended the training. The purpose of the workshop was to develop the capacity of participants to implement principles of equality and non-discrimination under the Constitution of Kenya, 2010. C. Donor support On 18th November 2011, the thematic area held a meeting with GIZ to identify potential areas for collaboration and partnership. GIZ has been supporting the judiciary as part of its project on Good Governance. It was agreed at the meeting that GIZ would support CIC to collaborate with the Judiciary in programmes relating to access to justice and the rule of law. Accordingly, meetings are scheduled for the next quarter with the judiciary and their consultants to explore collaboration opportunities. D. Activities planned for the first quarter of 2012 The thematic team has scheduled the following activities for the first quarter of 2012:  Organising a consultative meeting with the Judicial Transformative Steering Committee to discuss matters relating to access to justice and implementation of Article 105, 163 (3) (a) and 165 (3) (a) on the election court. The purpose of the meeting will be to ascertain areas of joint action and collaboration and to agree on the way forward.  Organising consultative forum with constitutional commissions to explore and agree on working relations with CIC in the implementation of the Constitution.  Organising a consultative forum with state and non-state actors to take stock of gains made in reforming the judiciary and to identify remaining gaps.  Organising a consultative forum with state and non-state actors to collect views on the formulation on the System of Courts Bill as contemplated under Article 162(2) of the Constitution and harmonization of legislation for delivery of judicial services in accordance with the Constitution. 2.2.7 Activities under the Devolved Government Thematic Area The devolved government thematic team has, during the fourth quarter of 2011, been engaged in range of activities aimed at ensuring the seamless transition to devolved government and to achieve the implementation of devolution as envisaged in the Constitution of Kenya, 2010. An overview of the work of the team during the quarter follows. A. Development of Legislation/policies/administrative procedures  The County Government Bill, 2011 The County Government Bill, 2011 seeks to give effect to devolution provisions in the Constitution and specifically Chapter Eleven of the Constitution by providing for the powers, functions, and responsibilities of county governments to deliver services and for other connected purposes. The Bill is currently with the AG‘s office. Before forwarding to the AGs, CIC subjected the bill to various discussions, which included discussions at a stakeholder meeting on 13th October 2011. The stakeholder‘s meeting was followed by public hearings from 24th to 28th October 2011 in six different counties. These were Kakamega, Baringo, Tharaka Nithi, Kirinyaga, Migori and Narok counties. There was also plenary discussion on the Bill on 1st November 2011, and finally a roundtable meeting attended by the KLRC, AG‘s office and the Ministry of Local Government.  The Transition to Devolved Government Bill, 2011 The transfer of power, functions and resources from the centralised government structure to a devolved structure which comes into being after the next general election requires that there be a transition process to allow for coordinated and timely restructuring and reorganization of government. The Transition to Devolved Government Bill, 2011 address this transition question and to give effect to Section 15 of the Sixth Schedule of the Constitution (phased transfer of power) and to provide a framework such transfer of power. During the fourth quarter of 2011, the CIC undertook a review of the Bill. As part of the review process, the CIC subjected it to stakeholder discussions in a forum held on 18th October 2011. Public hearing followed up the forum from 24th to 28th October 2011 Kakamega, 17th February, 2012 THE KENYA GAZETTE Baringo, Tharaka Nithi, Kirinyaga, Migori and Narok. A roundtable meeting on the Bill was held on 25th November 2011 after which the Bill was forwarded to the AG for publication.  The Intergovernmental Relations Bill 2011 The Intergovernmental Relations Bill 2011 seeks to establish a framework for consultation and co-operation between National and County governments; among county governments; establish mechanisms for dispute resolution and other connected purposes therein. CIC undertook a review of the draft during the reporting period. In this regard, the Commission held a roundtable meeting on 2nd November 2011, a stakeholders meeting on 8th November 2011 and, finally, a plenary meeting on 24th November 2011.  The Intergovernmental Fiscal Relation Bill 2011 The Intergovernmental Fiscal Relation Bill seeks to provide for co- operation and consultation between the national and county levels of government on fiscal, budgetary and financial matters; to prescribe a process for budgeting and the determination of equitable sharing and allocation of revenue raised nationally; to provide for a process for the determination of the control, coordination and management of borrowing; the granting of loan guarantees; the proper management of public debt by both the national and county levels government; the receipt and use by both the national and county levels of government of donor grants; and to provide for connected purposes. CIC began the review process for the Bill in the last quarter of 2011 and subjected it to a stakeholders meeting on 8th November 2011. Since, the Bill addresses issues that are and/or could be part of the Public Finance Management Bill 2011, CIC after consultation, has proposed to have this bill discussed as part of the finance management structure under the latter Bill.  The County Government Finance Management Bill The County Government Finance Management Bill was among the devolution bills received by CIC on the 14th of July 2011. The Bill seeks to provide a legislative framework for the most suitable financial management systems for county governments. In particular, it seeks to secure sound and sustainable management of the financial affairs of county governments, cities and urban areas, and other county public entities and to provide for matters connected thereto. Though received in the third quarter of 2011, the Bill was put on hold by CIC awaiting policy decision by the executive as to whether the contents of the Bill would be captured in the Public Finance Management Bill 2011. This decision has not been made. It is CIC‘s considered opinion that that if the two bills are merged, the single bill would adequately cater for the two levels of government and would conform with the letter and spirit of the Constitution. B. Engagement with stakeholders During the reporting period, the thematic team on devolved government participated in and/or organised various meetings and engagements with stakeholders. These included:  CIC Devolution Workshop Between 26th and 30th September 2011, devolved government thematic team conducted a workshop for CIC Commissioners on devolution generally and transition to devolution specifically. The workshop was held at the Kenya Commercial Bank (KCB) Leadership Centre Karen. The overall objective of the workshop was to provide a forum for the Commissioners to critically discuss the implementation process with respect to devolution. In specific terms, the workshop was aimed at:  Discussing and developing a shared understanding of the concept of transition to devolved government among the CIC Commissioners and researchers.  Identifying potential challenges and risks to the process of transition to devolved governance.  Identifying the process and administrative issues that must be addressed in order to effectively transition to devolved governments.  Developing a strategy for monitoring the transition process.  Identifying key aspects of different CIC thematic areas that have a bearing on transition to devolved governance.  County Visits The thematic team on devolved government organised and participated in a number of county consultative forums between 24th to 28th October 2011. Different centres in the six counties were visited as indicated below.  Kakamega County – Kakamega and Mumias.  Baringo County – Eldama Ravine, Mogotio, Kabarnet and Marigat.  Tharaka Nithi County – Chuka and Marimanti.  Kirinyaga County – Mwea, Kerugoya and Gichugu.  Migori County - Migori and Kehancha.  Narok County – Kilgoris and Narok. The objective of the consultative forums was to give the people in these counties and centres an opportunity to discuss issues relating to devolution in general and, in particular, the County Government Bill 2011 and the Transition to Devolved Government Bill 2011. The views gathered from these forums were taken into account when the two bills were finalized by CIC in preparation for the roundtable meetings on the bill  Kenya Alliance of Residents Association (KARA) Bi- monthly Talk KARA invited CIC to talk at their bi-monthly talk series on 14th November 2011. The theme of the talk was on devolution, responsiveness and participation. The convener of devolved government thematic team, Commissioner Wanyande, addressed the forum. Among the issues highlighted in his talk were: the importance of devolution; the status of various bills relating to devolution; the role of people in Kenya making devolution a reality; CIC‘s work with other constitutional commission and other actors in ensuring that the effective implementation of the Constitution; and optimism that implementation will remain on course. C. Activities planned for the first quarter of 2012 The devolved government thematic team has planned the following activities in the first quarter of 2012:  Hold consultative meetings with ministries on their transition to devolution work plans.  Continue to monitor and facilitate transition activities, including working with ministries to review administrative procedure necessary for effecting devolution.  Monitor and report on cases of violations of devolution principles.  Undertake further county visits to sensitize citizens on matters relating to devolution. 4.8 Activities under the Public Finance Thematic Area The public finance thematic team is responsible for guiding and coordinating all activities aimed at implementing Chapter 12 of the Constitution. Since the commencement of the activities of CIC in January 2011, the team has undertaken numerous activities aimed at facilitating, monitoring and coordinating all stakeholders involved in the generation and development of a constitutionally compliant public finance management legal and institutional framework. In the fourth quarter of 2012 the thematic team on public finance continued to undertake activities along the same lines. A. Development of Bills/Policies/Administrative Procedures  Finance Related Laws One of the issues that remained outstanding after the work in the first, second and third quarter of 2011 related to the completion of the process of developing new public finance legislation. In the first three quarters of the year the thematic team had held several in-house and stakeholder forums aimed at reaching consensus on the content of such legislation. After numerous challenges, including dissonance within the executive on the form and substance of the legislation, the Ministry of Finance on the 24th of November 2011 finally released the draft Public Financial Management Bill (hereinafter PFM Bill) for input by CIC and other stakeholders. The Bill seeks to integrate the Public Finance Management Bill, the County Public Finance management THE KENYA GAZETTE 17th February, 2012 558 558 Bill and the intergovernmental Fiscal Relations Bill. The thematic team started the review process during the reporting period but will continue with this work in the first quarter of 2012. With the assistance of GIZ and IDLO, CIC enlisted the services several international consultants on Public Finance, including Alta Folscher and David Solomon, both from South Africa, to assist the thematic team in understanding global best practices on the management of public finance and to advice on what an ideal public finance management framework would look like in view of Kenya‘s Constitutional architecture. The assistance from IDLO also enabled CIC to get assistance from local consultants in finance and institutional strengthening including a constitutional lawyer and the Chief Executive of the Institute of Economic Affairs (IEA). With the assistance these consultants CIC was able to achieve a comprehensive understanding of the requirements of an effective public finance management regime.  Controller of Budget Bill The thematic team started work to review the Controller of Budget Bill during the quarter under review. Following receipt of views from various stakeholders and, taking into account the presentations received from the Controller of Budget, the CIC organized a meeting jointly with the Commission on Revenue Allocation (CRA) to address the suggestions. The Bill will be put to a roundtable meeting in the next quarter. B. Engagement with stakeholders During the fourth quarter of 2011, the thematic team on public finance held various meetings and conducted other engagements with stakeholders as follows:  Meetings with Treasury on the Budget process CIC held two meetings with Treasury on the budget process. The main aim of the meetings was to review the process of generating the budget for the year 2012/2013 to ensure that the same was reflective of the Constitutional requirements particularly with respect to the issue of public participation. The Treasury shared its proposed process and CIC made recommendations for the improvement of the process, which were taken on board. CIC will continue to review the process as it is rolled out to ensure that it meets the threshold required under the Constitution.  Meeting with the Controller of Budget On the 14th October 2011, the thematic team on public finance met with the Controller of Budget, Mrs Agnes Odhiambo. The meeting focused on the review of the draft Controller of Budget Bill that CIC had held in abeyance pending the appointment of the holder of this important office. The meeting agreed on the basic framework of the Controller of Budget office necessary to effectively carry out its constitutional mandate of overseeing the implementation of the budget pursuant to Article 228 of the Constitution.  Stakeholder Forum and CIC meetings on the Public Finance Management Bill Due to the need to meet the constitutional requirement for public participation in the generation of laws, on the 7th December 2011, CIC organized a stakeholder consultation around the PFM Bill. The meeting brought together experts on public finance management as well as representatives drawn from the civil society and the non-state actors. Key constitutional offices, including the Controller of Budget and the Auditor General, also attended the forum. Senior Treasury officers who had been part of the team that drafted the Bill were also in attendance and were able to highlight on the thinking that informed various segments of the Bill. Whereas many of the participants appreciated that most of the views expressed in earlier forums had been incorporated in the Bill, it was also felt that the Bill still retained sections that needed changing to bring it in conformity with the Constitution. Many of these sections related to the need to ensure that devolution is a fundamental part of public finance management and that there is adequate public participation public finance management. Following the forum, CIC organized several retreats to discuss the PFM Bill. Between 8th and 10th December, a retreat comprising of the CIC, CRA representatives and various consultants was organized for purposes of thrashing out the issues raised in the forum, among other issues. C. Activities planned for the first quarter of 2012 The thematic team on public finance has planned the following activities in the next quarter:  Finalisation of the review of the PFM Bill: With the stakeholder and internal review of the PFM Bill having been undertaken, CIC expects to complete the final review of the Bill for enactment by parliament by February 2012 as required by the Constitution.  Finalisation of the review of Controller of Budget Bill: CIC intends to hold the roundtable meeting on the Controller of Budget Bill in early January 2012 to ensure that the Bill is expeditiously processed. With the appointment of the Controller of Budget it is essential that the law relating to the functioning of this office be completed as soon as possible.  Review of the Public Audit Act: The newly appointed Auditor General together with the Treasury are currently reviewing the Public Audit Act to bring it in line with the constitution. CIC hopes to receive the proposal for changes or new legislation in the first quarter of 2012.  Review of the Public Procurement and Disposal Act: CIC has requested the Public Procurement Authority to hasten the process of review of the Public Procurement and Disposal Act in line with Article 227(1) and (2) of the Constitution. The thematic team hopes to commence the comprehensive review of this Bill in the next quarter.  Review of the Central Bank Act and the Kenya Revenue Authority Act: CIC has commenced discussions with the Kenya Revenue Authority (KRA) and the Central Bank of Kenya (CBK) on the review of their existing statutes for these two bodies. The thematic team hopes to advance these discussions and reach consensus on the process and content of the reviewed Bills in the first quarter of 2012. 3. ONE YEAR ON: LESSONS LEARNT AND EMERGING ISSUES, CHALLENGES AND IMPEDIMENTS IN THE IMPLEMENTATION OF THE CONSTITUTION It is close to twelve months since CIC started, in collaboration with other agencies, to monitor, facilitate and oversee the development of legislation and administrative procedures required to implement the Constitution of Kenya 2010 in terms of its mandate set out in the Constitution. The ultimate goal of CIC‘s work is to protect the sovereignty of the people of Kenya, secure the observance by all state organs of democratic values and principles, and to promote constitutionalism. In working towards this goal, CIC has no doubt recorded a range of achievements during its first year of work. During 2011 CIC has also learnt a number of lessons with respect to the discharge of its mandate and the overall efforts to implement the Constitution and identified a number of systemic issues, including a range of recurring challenges and impediments that require some reflection. Such reflection at this stage is important to ensure that the people of Kenya to whom all sovereign power belongs, understand the issues at hand and are empowered to continue playing their critical vigilance role of ensuring the implementation of Constitution of Kenya 2010 is realised. This part of the report discusses these lessons and issues. The lessons and emerging issues relate generally to: the overall process of implementation; attempts to amend the Constitution; public participation; issues relating devolved government; and resistance to change and impunity. 3.1 The Process of Implementation CIC, together with the implementing agencies agreed, early on, on a process for implementing the Constitution of Kenya 2010. The process entails the development and/or review of policies, legislation and administrative procedures and the application of the same by the implementing agencies. CIC‘s role is to monitor, facilitate and oversee the implementation in order to ensure that the agencies and the people of Kenya adhere to the requirements of the Constitution. 17th February, 2012 THE KENYA GAZETTE During the year, all implementing partners worked within the constitutional timelines to ensure that Parliament passed the legislation required to have been passed by the end of the first year after the promulgation of the Constitution, that is, by 26th August 2011. Most of these legislations, particularly the laws dealing with the electoral process and the reforms in the police, herald major changes in these key sectors of our nation. However, a number of issues have arisen and there have been some challenges in ensuring a smooth implementation process, seamless interagency coordination and adherence to timelines. These include the following:  Deliberate attempts to misrepresent, misinterpret and/or underplay the mandate of CIC It has become clear, as demonstrated by the latest statements by the AG, that not everyone is clear or willing to accept the unique and important role of the CIC in the implementation process. There have therefore been a number of cases where certain quarters have sought to downplay or misguide the public regarding the role and mandate of the CIC. In a number of instances we have also witnessed inexcusable cases of non-responsiveness from key implementing agencies. For example, the IEBC and the Parliamentary Service Commission have not found time to respond to CIC written requests yet the information requested for is key in monitoring progress in implementing the constitution and where necessary, assist the agencies involved in achieving the same.  Lack of policies, administrative procedures and other measures to back enacted laws Most of the bills developed have not been based on policies and the laws passed have not been reinforced by administrative procedures. This makes delivery of service to the people of Kenya hard and in the end such laws may not promote constitutionalism. There is also an emerging notion that implementation of the Constitution entails only the formulation of legislation required under the Fifth Schedule to the Constitution and nothing more. The slow pace of developing regulations under the Elections Act and the Political Parties Act is one example. The lack of an agreed conceptual framework on public finance and fiscal decentralisation as provided under the Constitution has unnecessarily delayed the finance management related laws. Clearly, without clear policy guidance and administrative procedures coupled with cultural shift legislation alone cannot bring about the reform process.  Unconstitutional provisions in enacted laws and disregard for due process Some provisions in the enacted legislation either violate the letter of the Constitution or are in conflict with the spirit of reform that underpinned the development and promulgation of the Constitution. In order to initiate amendments to certain pieces of legislation, CIC audited all legislation enacted in 2011 and submitted its views to the AG in September 2011. This legislative audit was also shared with the President, The Prime Minister and The National Assembly. CIC hopes that the AG will take steps to ensure amendments to bring these statutes in line with the Constitution are effected as soon as possible. In the meantime, it is a matter of concern and regret for CIC that we are yet to receive response or feedback to our said legislative audit. Despite having agreed with Ministries and other implementing partners on the legislative process to be used in the enactment of legislation, certain legislation were enacted in direct violation of the due process laid out in Article 261 (4) and Section 5 (6)(b) of the Sixth Schedule to the Constitution. Such laws include the Contingencies Fund Act 2011 and County Emergency Funds Act 2011 and the National Government Loans Guarantee Act 2011. In this context, CIC has been forced to instituted court proceedings redress these violations of the Constitution. Flouting the procedures for developing and enacting legislation presents a major challenge to the implementation process since the Constitutional validity of the resultant laws is put to question. This means that even if the deadlines for passing the laws are met if the enacted laws are found to be unconstitutional it would effectively mean that the required law were not passed in time as required. While the CIC has consistently flag the issue of process, the executive has at best remained ambivalent on the issue of compliance. At worst, the executive appears determined to flout clear constitutional provisions, the latest being the irregular and unconstitutional process relating to the Judicature (Amendment) Act 2011.  Dissonance within the executive During the year, CIC also noted some level of dissonance within the executive, which has caused delays in the generation of certain key legislation. For example, the Public Finance Management Bill 2011 and the legislation on Public Service. In addition to the delays, such dissonance creates anxiety as regards the commitment to implementing the Constitution and in particular, the provisions relating to devolved Government.  Private members bills and possible circumvention of due process requirements CIC acknowledges the value of private members bills and the authority of parliament in the development and passing of laws. However, it is important that the process of developing private members‘ bills fully complies with the Constitution. Parliament and individual members of parliament are all subject to the Constitution. Compliance with the Constitutional requirements particularly with respect to public participation will ensure that demands of people centred processes and effective public participation in development of all laws and policies are met. A number of recent private members bill that seek to implement the Constitution such as the Consumer Protection Bill (by Hon. Midiwo) and the Social Protection Bill (by Hon. Laboso) have been generated without following the process for laws on implementation of the Constitution, including with respect to the involvement of the CIC. Where CIC has been involved this has been through rushed processes. CIC is keen to constructively engage with Parliament to allow for broader stakeholder and public consultation on these private members bills. Some members of parliament, such as Hon. Midiwo, have responded positively to CIC‘s suggestions in this regard.  Individual and vested interests While the Constitution of Kenya 2010 goes to great length to ensure credible processes for appointment of constitutional office holders and other key public officers, some of those who have been appointed through this process seem to assume that vetting puts them above the law. The emerging tendency to flout or disregard the Constitution by some of those who personally and individually benefited by filling the newly created offices or positions is an area of concern. There may also be a danger of the urge to immediately accrue personal gain and/or pander to vested interests. This will undermine the vision for a better Kenya built on constitutionalism.  Availability of expertise on key areas of implementation Another issue that has arisen is the difficulty of getting available experts in various areas of CIC‘s work. This has been particularly a challenge in the area of public finance. Due to the paucity of experienced consultants locally and internationally, even when available, key consultants are not able to work with CIC for long periods thus prejudicing the process of reviewing the public finance laws. The overall lesson for CIC with respect to the process issues is that there are no guarantees that even where the Constitution has clearly spelt out procedures that these will be followed. There remain vested interests and an entrenched culture against due process and rule of law that will rear its ugly head at different points inn the implementation process. 3.2 The danger of mutilating the Constitution While the Constitution contemplates the possibility of its amendment, CIC is concerned that during 2011 a number of unnecessary and self- serving amendments have been proposed this early in the implementation process. These types of amendments threaten to undermine the Constitution. Any amendment to the Constitution should enhance, not impede the realisation of the letter and spirit of the Constitution. As a general rule, except in exceptional circumstances, amendments, if any, should take place after the Constitution has been tested through its implementation. In addition, any bill seeking to amend the Constitution should follow the legislative process laid out in the Constitution, and involve a high level of public participation before its introduction in Parliament. Any amendment to the Constitution must pass the test of being on behalf of, and for, the benefit of the people of Kenya. THE KENYA GAZETTE 17th February, 2012 560 560 CIC‘s fears regarding ill-conceived and mischievous constitutional amendments are confirmed by the on-going debate on a proposed amendment to the Constitution to abolish the Senate and restore a unicameral Parliament. Another example of a problematic amendment is that relating to the amendment of the election date. CIC has objected to the Constitution (Amendment) Bill 2011 to the extent that it seeks to deal with the issue of the elections date. While CIC reading of the Constitution is that the constitutional provisions on the election date are clear, we reiterate that for us, the important issue is not what we as CIC read the Constitution to say, but what is the process that we as a country use, to determine the election date. CIC believes that the correct forum to determine the issue of the date of elections is the courts. CIC will respect the court rulings on the matter even where they may be contrary to CIC's stated view. It is important that the critical role of the court is affirmed where differences of opinion on interpretation arise. The role of 'clarifying' what the constitution means was never intended to be Parliament‘s. Here, the underlying lesson is that notwithstanding the overwhelming support that the Constitution in the current form received at the referendum in 2010 there are still forces within and outside parliament that will use all means to derail or otherwise reverse the gains of the new order. Anti-reform forces are regrouping and hitting the forces of change hard. While this is expected the challenge is when these forces are made up of persons whose entities are key to the implementation for the Constitution. It can therefore not be assumed that elected leaders or constitutional office holders will always act in the best interest of the people of Kenya. 3.3 Lessons and emerging issues on devolved government CIC recognises the efforts that different sectors are playing in readiness for the devolved government system after the 2012 general elections. There are currently various laws relating to the devolved government system, e.g. the County Government Bill 2011, the Transition to Devolved Government Bill 2011 and the Intergovernmental Relations Bill 2011 that are currently with the office of the AG waiting to be introduced to Parliament for debate. Unfortunately, some of the efforts to prepare for devolution have led to the execution of activities that are in violation of Constitution. One example is the appointment by the Executive, of county officers and coordinators. Pending passage of the law and in view of the critical importance of handling the transition properly, CIC is of the view that the government should urgently institute a defined structured and transparent process of preparing for the transition to a devolved government structure. The situation that now obtains poses a range of challenges and raise a number of issues. In particular, as things stand there is:  Lack of clarity in the management of transition.  Lack of clarity in the activities relating to transition and there prioritization.  Lack of coordination of the activities relating to transition to devolved government.  Apparent inability of a section of the executive to adhere to the process involved in handling bills relating to devolution. In this regard it is noted with concern that the Permanent Secretary Ministry of Local Government wrote to CIC purporting to withdraw two bills when in fact the bills were not submitted to CIC by Ministry of Local Government. The bills are the County Government Finance Management and the Intergovernmental Fiscal Relations Bill, 2011.  Concern that the bills on devolution received by CIC from the Ministry of Local Government deal mainly with county governments and yet bills on devolution should cover both national and county governments. The failure to provide for national governments in these bills is a major omission. In the context of these challenges there are a number of key areas that need urgent attention, including:  Unbundling of functional assignments in the Fourth Schedule of the Constitution to the National and County governments.  Asset and liability audit of all public entities in preparation of allocation of the same to the National and County governments.  Protection of government assets especially those currently owned by the local authorities.  Designing a structured system to make preparations for the transition in a way that respects Constitution, including with respect to generation and review of legislation. 3.4 Resistance to change and the continuing culture of impunity Many of those involved in, and leading, the implementation process have embraced the attitude and behaviour called for by the new dispensation and they are thus trying their best to have the Constitution implemented successfully. Many also recognise that change has come and are working to adapt accordingly. It may also have been assumed with such large support for the new order those who do not change shall be changed by Constitution. In the course of 2011 CIC has, however, increasingly noticed resistance to the Constitution implementation process and hence change by certain quarter in the executive and the legislative arms of the government as well as other players. This resistance comes in various forms such as frustration of the constitutional implementation process, inadequacy in the provisions of some legislation despite advisories issued by CIC to the various implementing partners, participation of the people not being taken seriously, attacks on the judiciary despite the independence of the judiciary and the principle of separation of powers between the three arms of the government, various violations on human rights contrary to the Bill of Rights of the Constitution, and, general impunity within government and the country in general. These happenings pose grave dangers not just to the implementation process but to the peace and harmony that are essential for nation building. Part of the resistance to change is simply typical human behaviour towards change while another part is caused by sheer impunity. There is a section of Kenyans who still believe that they are living under the old dispensation and can therefore do as they like, including blatantly violating the Constitution of Kenya 2010, and get away with it. It is this attitude that for example informs the AG lack of respect for Article 261, which requires the AG to consult CIC before tabling bills in Parliament. Unfortunately the AG has expressed his willingness, indeed his commitment to subjugate his opinions to those of other organs of government, even where those organs may be acting in breach of the constitution. The AG‘s recent interpretation of the Constitution has proved not to be serving the public interest, but purely as the implementer of executive directives regardless of whether or not they promote constitutionalism. A failure by the AG to discharge his advisory role faithfully, will inevitably result in the executive, inadvertently or knowingly violating mandatory constitutional provisions, with consequential domino effects that delay or derail the implementation process. The AG‘s statement to the CIC that ―the office of the Attorney General existed and was fully functional before the promulgation of the New Constitution” speaks volumes. Another case in point is the submission of names by the President to the National Assembly of nominees to the Ethics and Anti-corruption Commission. CIC had occasions to write to H.E. The President, The Rt. Hon. Prime Minister, and to The Speaker of The National Assembly, to express concern regarding the fact that on the basis of the information available to the public, these names were submitted to The National Assembly, outside the mandatory period that is slated in Section 6(6) of The Ethics and Anti-Corruption Commission Act. Section 6(18) of the same Act gives the President by Gazette Notice power to extend the period by a period not exceeding twenty-one days. If this was not done, then it is the view of CIC, that any consequential process would, by reason of that violation of Section 6(6) of the Act, render the process and any resultant appointments a nullity, and open to legal challenge. Evidence of resistance to change and of impunity also emerges where there has been failure or reluctance by state organs to prioritize implementation of the Constitution and in cases where there is refusal or delay in the publication of critical legislation, such a number of security legislation despite their enactment by parliament. 3.5 Public Participation A major gain brought about by the provisions of the Constitution of Kenya 2010, is that the extent of public participation in the legislative process is greater than at any other time in Kenya‘s history. CIC wishes to recognise the efforts made so far, by the people of Kenya, government ministries, religious institutions and civil society 17th February, 2012 THE KENYA GAZETTE organisations at all stages of the legislative process of enactment of laws. A worrying trend has however been emerging in relation to the effectiveness of public participation. In addition to the issue of public participation in private members bills it has become evident that the quality and level of public participation is not sufficiently robust and in some cases the interest in the implementation process is waning. Part of the reason for this is a general lack of civic awareness, especially at the grass-roots regarding the opportunities, procedures and the rights related to participation in legislative, policy and other processes. Public participation may also be affected by the emerging of other issues on the national agenda. For example, the current economic crisis being experienced by the country may have a negative impact on the implementation process. The war on Al Shabaab also has implications and has already made it difficult for the executive and the security thematic team to make appointments with key players in the defence sector. Similarly, the labour unrest may replace the national reform agenda. Impediment of the AG’s office The Commission for the Implementation of the Constitution (CIC) is concerned that the office of the Attorney General is increasingly becoming an impediment to the implementation of the Constitution. Three recent events are pointers to this reality. Firstly on this issue of the amendment of the constitution, the Attorney General, who had entered into office vigorously discouraging amendments, has completely revised his position and now vigorously articulates and pursues the position taken by the Executive. There is no rational explanation for this sudden change of heart as no fresh perspectives on the matter have arisen to warrant a review. Such turnaround by the AG on such a key national issue on which he ought to be the principal adviser to government is of great concern to CIC. CIC hopes that the AG has not been captured by interests inimical to the reform process. Further, the AG has failed in his duty to advise the Executive on the proper process through which amendments to the constitution can be processed. In the first instance, despite the constitution of Kenya requiring public participation in the process of law making, no process of public consultation was even carried out prior to the publication of the Constitutional Amendment Bill. Even more worrying, there has been failure to comply with article 261(1) and (4) of the constitution under the watch of the Attorney General. Under article 261(1) and (4) of the Constitution, the Attorney General is expected to consult with CIC on legislation that is prepared for tabling in Parliament and that relates to the implementation of the constitution. The amendments being sought are the sort contemplated by these Articles. As the primary adviser to Government and protector of the public interest, CIC expected the AG to be at the forefront in advising adherence to the constitution in letter and spirit by the Executive. In our several interactions with the Attorney General, we have also been concerned by the Attorney General‘s willingness to subjugate his opinions to that of other organs of government, even where those organs may be acting in breach of the constitution. Situations of this nature include the AG‘s willingness to table before Parliament legislation related to the implementation of the constitution without involving the CIC as required under Article 261(4). This casual disregard of clear constitutional provisions may be a pointer to further violations that may happen under the watch of the AG. Finally, CIC is concerned that the office of the Attorney General has taken the position that it will continue to function in the manner that the office was functioning prior to the promulgation of the Constitution of Kenya, 2010 and that nothing had changed in that office with respect to its mandate and operations. This unfortunate position taken under the direction of the Attorney General of Kenya who took an oath of office that he will obey, respect and uphold the Constitution of Kenya, 2010 is not only alarming but a red flag of the potential impediment that a non-reformist attitude and culture in the Office of Attorney General portends for the implementation of the Constitution. It fails to recognize the revolutionary changes that the constitution has introduced, not just for the AG‘s office but for all state organs in their operations. The AG is a key implementer of the Constitution both with respect to the development and preparation of implementing legislation as well as an office that is part of the Executive. With several departments under its umbrella as well as having the power to issue circulars and developing internal administrative procedures such as policies and regulations, it is required to ensure that the administrative procedures comply with the letter and spirit of the Constitution. Part of the mandate of CIC under requires it to monitor the extent of compliance with the constitution by the office of the Attorney General and other state organs. As the principal legal advisor to Government, the Attorney General‘s office should be a role model in compliance with the Constitution internally and in the delivery of its mandate with regard to other implementing agencies. These recent actions by the AG indicate that the AG‘s is interpreting his mandate in a limited and restricted manner, not as serving the public interest, but purely as the implementer of Executive directives regardless of whether or not they promote constitutionalism. A restrictive interpretation of the role of the AG will seriously impede the implementation and violate the spirit of the Constitution that elevates the sovereign power of people of Kenya above that of the arms of government and expects all state officers to all times serve the interest, not of any person, or partisan interest, but the public interest. 4. KEEPING THE MOMENTUM – ADDRESSING THE CHALLENGES AND IMPEDIMENTS TO CONSTITUTIONAL IMPLEMENTATION IN 2012 AND BEYOND “Electing a thief as a Governor is like putting a hyena to sell meat in your butchery” (sic). A participant in Migori during a County Visit by CIC Realising the full potential of the Constitution of Kenya 2010 requires the will and effort of all state organs and all Kenyans. Getting the support and directed effort from all, as the discussion in the preceding part of this Report shows, is however not a given and in some instances has proven elusive. There is therefore no doubt it will take significant work from reform minded and committed stakeholders to realise the promise of a new dispensation in Kenya. The CIC, together with other stakeholders in the executive, parliament and judiciary as well as non-state actors, have succeeded, despite various challenges, to build quite some momentum behind the implementation process. This momentum needs to be maintained and built upon. In order to keep the momentum in 2012 and beyond, effective strategies and tactics will have to be deployed to address the various systemic challenges and issues that have been discussed in Part 3 of this Report. In CIC‘s view, the strategies and tactics required should be built around a number of recommendations. These include: 1. Constant vigilance: There is need for all stakeholders and Kenyans to constantly exercise vigilance to ensure the implementation of the Constitution is on track. Kenyans must also work to ward off any attempts to frustrate the implementation process and the efforts to build a better Kenya. In this regard, it bears repeating that anti-reform troops have regrouped and are now demonstrating that their brief honeymoon with the Constitution and its implementation is over. It is clear that these forces will resist the transformative change at every turn. Vigilance must remain the buzzword for every Kenyan. CIC suggests that the greatest vigilance should focus on those, in whatever capacity, charged with the responsibility to ensure the implementation of the Constitution. The Constitution of Kenya 2010 is in its greatest peril, when the warden turns into the poacher. 2. The AG - Holding constitutional office holders to their responsibilities: The AG‘s office is critical to the implementation of the Constitution. Indeed, it is in recognition of this fact that the Constitution required the previous holder of that office to vacate the office within one year from the date of promulgation to pave way for a new person not carrying the baggage of the past. Consequently, the new AG should exercise his mandate as chief legal adviser to the government to provide the required legal guidance in an objective manner to ensure that provisions of the Constitution are adhered to and the spirit of the constitution upheld. His client, as a constitutional office holder, is the people of Kenya and his rulebook the Constitution of Kenya 2010. 3. Leadership: CIC calls upon all arms of government to demonstrate leadership and steer the constitution implementation process to ensure successful development of Bills and integration of constitutionalism. Leadership will be THE KENYA GAZETTE 17th February, 2012 562 562 required at all levels from the principals to ordinary civil servants and other state offices as well as from non-state actors. 4. Maintaining implementation at the top of the national agenda: CIC recommends that all State organs prioritize implementation of the Constitution to ensure laws, policies and administrative procedures are developed in accordance with constitutional timelines and the letter and spirit of the Constitution is observed. It will also be important that Kenyans, including the media, maintain the issues of constitutional implementation as a key part of the national agenda. While other issues, such as the economic crisis and the war on Al Shabaab obviously deserve attention, ultimately; the full implementation of the Constitution is what will guarantee that we have the institutions and means to effectively tackle our economic, security and other challenges. 5. Managing change: CIC emphasizes that implementation of the Constitution goes beyond only the formulation of legislation required under the Fifth Schedule to the Constitution. Implementation of the Constitution entails the formulation of the aforesaid legislation and administrative measures, review of existing legislation and administrative measures to conform to the letter and spirit, and most importantly, ensuring that the said legislation and administrative measures are fully implemented/administered through a culture of constitutionalism. There is need for the general Kenyan population to understand that the Constitution is a transformative document and aims to bring forth change for a better Kenya. Promulgation was an initial step in a long journey that has to be managed properly. 6. Parliament - Applying the national principles and values by all: Beyond the work of the executive to generate bills for the implementation of the Constitution, members of parliament can also play an important role in ensuring that the relevant laws are passed. The issue of private members bills touching on constitutional implementation is therefore critical. To ensure compliance with the national values and principles particularly the principle of public participation, CIC recommends that members of parliament, in exercising their legislative authority to generate private members bills should also ensure that the constitutional values and principles in Article 10 are respected. Of great importance is the need to ensure that the principle of Public participation is met and the role of institutions with the mandate on implementation is taken into account. As already noted in this Report, it has been argued in some quarters that the applicable law in matters of private members bills is the old Constitution and members of the public and institutions that wish to audit these bills will have to contend with the 30 days after publication to give any input they wish into these laws. CIC believes that the limitation of the public participation role to the 30 days after the publication of a private members Bill does not comply with the constitutional requirement for effective public participation. The Bills are published in Nairobi by the government printers and averagely cost Kshs. 200. They cannot be said to be reasonably accessible to Kenyans on all parts of the country. In the end, as Article 94 of the Constitution clearly states, legislative power belongs to the people of Kenya and is only delegated to parliament. In this context, it may be prudent to amend the applicable parliamentary standing orders to ensure reasonable access by Kenyans to the process relating to private members bills. 7. Status reports by implementing agencies: As noted in the introduction to this report CIC has requested ministries, state agencies and constitutional commissions to submit status reports on their efforts to implement the Constitution. So far, CIC has only received 12 reports as shown in Annex II. While this shows that a number of ministries and agencies are serious about implementation it remains an issues that many ministries, agencies and commissions have not submitted this reports. To ensure accountability and transparency it will be critical that all ministries, state agencies and constitutional commissions submit these reports so that Kenyans can fully appreciate their efforts as well as challenges in carrying out their functions. 8. Civic Education: The Constitution anticipates participatory governance and legislation where the people of Kenya are involved in their own governance with state organs and institutions acting only on delegated authority. As such the people only delegate the authority but remain responsible in the implementation of the Constitution. As such it is necessary that efforts are made to carry out comprehensive civic education both by the state and non-state actors to facilitate effective exercise of sovereign power by the people of Kenya. There is an urgent need for a massive civic education exercise so that all Kenyans can be actively involved in the implementation of a document, which they understand. CIC recognises that the Ministry of Justice, National Cohesion and Constitutional Affairs is spearheading civic education under the Kenya National Integrated Civic Education (K-NICE) programme. The programme has, however, either not started or it is yet to make an impact. Annex II SUMMARY OF SUBMISSION OF QUARTERLY REPORTS BY IMPLEMENTING AGENCIES AS AT 31st DECEMBER, 2011 LIST OF MINISTRIES 2nd Quarter 3rd Quarter 4th Quarter  Office of the President Cabinet Office √ ₓ Ministry of State for Defence √ √ Ministry of Provincial Administration and Internal Security ₓ ₓ State House ₓ ₓ  Office of the Prime Minister √ Ministry of Planning, National Development and Vision 2030 ₓ ₓ √ Ministry of State for Public Service √ √ √  Office of the Vice President Ministry of Home Affairs ₓ ₓ Ministry of Immigration and Registration of Persons √ ₓ Ministry of National Heritage and Culture ₓ √ √  Others Ministry of Agriculture √ √ Ministry of Cooperative Development and Marketing √ √ √ Ministry of Development of Northern Kenya and other Arid Lands ₓ √ Ministry of East African Community √ √ Ministry of Education √ √ √ Ministry of Energy √ ₓ Ministry of Environment and Mineral Resources ₓ √ Ministry of Fisheries Development √ ₓ Ministry of Foreign Affairs √ ₓ Ministry of Forestry and Wildlife √ ₓ Ministry of Higher Education, Science and Technology ₓ √ 17th February, 2012 THE KENYA GAZETTE LIST OF MINISTRIES 2nd Quarter 3rd Quarter 4th Quarter Ministry of Housing ₓ √ √ Ministry of Industrialization √ √ Ministry of Information and Communications √ √ Ministry of Justice, National Cohesion and Constitutional Affairs √ √ Ministry of Labour ₓ √ √ Ministry of Lands √ ₓ Ministry of Livestock Development √ ₓ Ministry of Medical Services √ √ Ministry of Gender, Children and Social Development √ √ Ministry of Nairobi Metropolitan Development √ √ Office of Deputy Prime Minister and Ministry of Finance ₓ √ Office of Deputy Prime Minister and Ministry of Local Government √ ₓ Ministry of Public Health and Sanitation √ √ Ministry of Public Works Ministry of Regional Development Authorities ₓ ₓ Ministry of Roads ₓ ₓ Ministry of Special Programmes √ √ State Law Office ₓ ₓ Ministry of Tourism √ ₓ Ministry of Trade √ √ √ Ministry of Transport ₓ √ Ministry of Water and irrigation √ √ Ministry of Youth and Sports ₓ √ CONSTITUTIONAL COMMISSIONS COMMISSION 2nd Quarter 3rd Quarter 4th Quarter Commission on Revenue Allocation √ Independent Electoral and Boundaries Commission Judicial Service Commission ₓ ₓ Kenya National Human Rights Commission Parliamentary Service Commission √ √ Public Service Commission of Kenya Teachers Service Commission Poverty Eradication Commission National Gender and Equality Commission Commission on Administrative Justice Annex III LEGISLATION TO BE ENACTED BY 26th FEBRUARY 2012 - AS PER THE FIFTH SCHEDULE OF THE CONSTITUTION LEGISLATION TO BE ENACTED BY FEBRUARY, 2012 - AS PER THE FIFTH SCHEDULE OF THE CONSTITUTION Specific Name of Bill Policy Developm ent by the Executive and Commissi ons by Policy Document from line Ministry after Cabinet’s involvement, to CIC by Polic y Releas ed to Minist ry by CIC by Raw draft Bill from line Ministr y after Cabine t’s involve ment to KLRC/ AG by Draft Bill by KLR C/AG releas ed to CIC by Round table AG/KL RC/CI C/ line Ministr y/instit ution finalize d by Final draft bill released by AG for tabling before Parliame nt, after Consultat ions with CIC by Public ation by Constit ution- (Schedu le 5) Deadlin e Propose d date for enactm ent by 1. Legislation on Land (Article 68) a. National Land Commission Bill 15.06. 16.11.2 30.11.201 7.12.2 18 months (26.02.2 012) 26.01.20 b. Lands Bill (The Bill has not been received by CIC) 7.12.20 21.12.201 28.12. 18 months (26.02.2 012) 26.01.20 2. Removal of a county governor (Article 181) Provision was provided for by CIC in the Elections Bill. However, it was neither in the published Elections Bill, 2011, nor in the Elections Act, 2011. In its Audit of Acts, CIC recommended that this provision should be included in the Elections Act, 2011; This provision is now included in the County Governments Bill. months (26.02.2 012) 26.01.20 3. Vacation of office of member of county assembly (Article 194) Legislation provided for within the Elections Act, 2011 18 months (26.02.2 012) Enacted THE KENYA GAZETTE 17th February, 2012 564 564 4. Legislations to effect Chapter 11 (Article 200 & Section 15 of the Sixth Schedule) a. County Govern ments Bill 1.08.2 2.11.20 (roundt able) 10.11.2 (CIC to release Bill to the AG) 24.11.201 1.12.20 18 months (26.02.2 012) 26.01.20 Specifi c Name of Bill Policy Devel opme nt by the Execu tive and Com missi ons by Policy Docum ent from line Ministr y after Cabine t’s involve ment, to CIC by Polic y Releas ed to Minist ry by CIC by Raw draft Bill from line Ministr y after Cabine t’s involve ment to KLRC/ AG by Draft Bill by KLR C/AG releas ed to CIC by Round table AG/KL RC/CI C/ line Ministr y/instit ution finalize d by Final draft bill released by AG for tabling before Parliame nt, after Consulta tions with CIC by Public ation by Constit ution- (Schedu le 5) Deadlin e Propose d date for enactm ent by b. Transiti on to Devolv ed Govern ment Bill 1.08.2 17.11.2 1.12.2011 8.12.20 18 months (26.02.2 012) 26.01.20 c. Intergo vernme ntal Relatio ns Bill 1.08.2 8.12.20 22.12.201 29.12.2 18 months (26.02.2 012) 26.01.20 d. Intergo vernme ntal Fiscal Relatio ns Bill 1.08.2 9.12.20 22.12.201 29.12.2 18 months (26.02.2 012) 26.01.20 5. Revenue Funds for county governments (Article 207) Public Finance Management Bill (The Bill has not been received by CIC) 15.12.2 22.12.201 29.12.2 18 months (26.02.2 012) 26.01.20 Annex IV STATUS OF ENACTMENT OF LEGISLATION CITIZENSHIP AND HUM AN RIGHTS ACT STATUS CONSTITUTIONAL TIMELINES 1. The National, Gender and Equality Commission Act, 2011. Enacted in August 2011. One year 2. The Kenya National Human Rights Commission Act, 2011. Enacted in August 2011. One year 3. The Commission on Administrative Justice Act, 2011. Enacted in August 2011. One year 4. The Kenya Citizenship and Immigrations Act, 2011. Enacted in August 2011. One year 5. The Foreign Nationals Service and Management Act, 2011. Enacted in October 2011. BILLS STATUS CONSTITUTIONAL TIMELINES 15. The Ratification of Treaties Bill 2011. Awaiting parliamentary debate. Five years 16. Marriage Bill 2011 Undergoing internal review. Five years 17. Matrimonial Property Bill 2011 Undergoing internal review. Five years 18. Family Protection Bill 2011 Undergoing internal review. Five years 19. Births and Deaths Registration Bill Undergoing internal review. 20. Identification and Registration of Citizens Bill 2011 Undergoing internal review. 21. Refugee Bill 2011 Undergoing internal review. 22. Freedom of Information Bill 2008. Undergoing internal review. Three years 23. Data Protection Bill 2009 Undergoing internal review. Three years 17th February, 2012 THE KENYA GAZETTE 24. Consumer Protection Bill 2011. Undergoing internal review. Four years LAND AND ENVIRONMENT BILL STATUS CONSTITUTIONAL TIMELINES 1. National Land Commission Bill Undergoing internal review Eighteen months 2. Land Bill Undergoing internal review. Eighteen months PUBLIC SERVICE & LEADERSHIP ACT STATUS CONSTITUTIONAL TIMELINES Ethics and Anti-Corruption Commission Act Enacted in August 2011 One year BILL STATUS CONSTITUTIONAL TIMELINES Public Service Commission Bill (Article 233) Undergoing internal review REPRESENTATION OF THE PEOPLE AND LEGISLATURE ACT STATUS CONSTITUTIONAL TIMELINES The Independent Electoral and Boundaries Commission Act, 2011 Enacted in August 2011 One year The Political Parties Act, 2011 Enacted in August 2011 One year The Elections Act, 2011 Enacted in August 2011 One year BILL STATUS CONSTITUTIONAL TIMELINES The Campaign Financing Bill, 2011 Undergoing internal review EXECUTIVE AND SECURITY ACT STATUS CONSTITUTIONAL TIMELINES National Police Service Commission Act Enacted in August 2011 Two years National Police Service Act Enacted in August 2011 Two years Independent Policing Oversight Authority Act Enacted in August 2011 Two years Power of Mercy Enacted in August 2011 One year BILL STATUS CONSTITUTIONAL TIMELINES National Coroners Service Bill Undergoing internal review Two years Private Securities Regulation Bill Undergoing internal review Two years Assumption Of Office of President Undergoing internal review Two years JUDICIARY AND CONSTITUTIONAL COMMISSIONS ACT STATUS CONSTITUTIONAL TIMELINES The Judicial Service Act, 2011 Enacted Two years The Vetting of Judges and Magistrates Act, 2011 Enacted The Supreme Court Act, 2011 Enacted One year The Industrial Court Act 2011 Enacted The Environment and Land Court Act, 2011 Enacted BILL STATUS CONSTITUTIONAL TIMELINES The Teachers Service Commission Bill Undergoing internal review DEVOLVED GOVERNMENT ACT STATUS CONSTITUTIONAL TIMELINES Urban Areas and Cities Act Enacted One year BILL STATUS CONSTITUTIONAL TIMELINES Transition to Devolved Government Bill Undergoing internal review Eighteen months Intergovernmental Relations Bill Undergoing internal review Eighteen months Intergovernmental Fiscal Relations Bill Undergoing internal review Eighteen months County Government Finance Management Bill Undergoing internal review Eighteen months County Government Bill Finalized and forwarded to Attorney General for publication Eighteen months PUBLIC FINANCE ACT STATUS CONSTITUTIONAL TIMELINES Commission on Revenue Allocation Act (2011) Enacted Independent Offices Appointment(Amendment) Act, 2011. Enacted Salaries and Remuneration Commission Act Enacted BILL STATUS CONSTITUTIONAL TIMELINES Public Financial Management Bill Undergoing internal review Two years Controller of Budget Bill Undergoing internal review Annex V About the Commission and the Commissioners A. The Mandate of CIC The CIC is the focal institution charged with facilitating, monitoring and overseeing the implementation of the new Constitution. Its mandate is to: (a) Monitor, facilitate and oversee the development of legislation and administrative procedures required to implement the Constitution; (b) Coordinate with the Attorney-General (AG) and the Kenya Law Reform Commission (KLRC); in preparing for tabling in Parliament, the legislation required to implement the Constitution; (c) Report regularly to the Constitutional Implementation Oversight Committee (CIOC) on: (i) The progress in the implementation of the Constitution; and (ii) Any impediments to the implementation process. (d) Work with each constitutional commission to ensure that the letter and spirit of this Constitution is respected. (e) Monitor the implementation of the system of devolved government effectively. THE KENYA GAZETTE 17th February, 2012 566 566 The CIC is further required to meet the objectives of Article 249 of the Constitution of the Kenya 2010. The objects are to: (a) Protect the sovereignty of the people; (b) Secure the observance by all state organs of the democratic values and principles; and (c) Promote constitutionalism. In 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. CIC operations are accordingly guided by the National Values and Principles of Governance as stipulated in Article 10 of the Constitution. These are: patriotism, national unity, sharing and devolution of power, the rule of law, democracy, and participation of the people, Human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, and protection of the marginalized, Good governance, integrity, transparency, and accountability and Sustainable development. B. Vision, Mission and Strategic Outcome Results In order to fulfil its mandate the CIC has developed a clear vision and mission to guide its work. Based on this vision and mission the Commission undertakes its work within an outcomes framework under which it has defined key result areas. These outcome results assist in guiding the Commission‘s work and providing the basis for accountability to other institutions and the public at large. The vision, mission and the outcome results are as follows: Vision: 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. Mission: 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. Strategic outcomes: To achieve the Vision and Mission, CIC has identified four strategic outcomes, that is; a respected, well-functioning and independent Commission effectively delivering on its mandate, policies which are compliant with the letter and the spirit of the Constitution, laws which are compliant with the letter and the spirit of the Constitution and effective institutional frameworks and administrative procedures for the implementation of the Constitution. C. The Commissioners Mr. Charles Nyachae Chairperson Dr. Elizabeth Muli Vice-Chairperson Convener, Executive and Security Thematic Team. Ms. Catherine M. Mumma Convener, of the Bill of Rights and Citizenship Thematic Team. Dr. Ibrahim M. Ali Convener of the Land and Environment Thematic Team. Mr. Philemon Mwaisaka, EBS, SS Convener of the Public Service and Leadership Thematic Team. Dr. Florence Omosa Convener, Representation of the People & the Legislature Team. Mr. Imaana Kibaaya Laibuta Convener, Judiciary and Constitutional Commissions Thematic Team. Prof. Peter Wanyande Convener, Devolved Government Thematic Team. Mr. Kamotho Waiganjo Convener of Public Finance Thematic Team