GAZETTE NOTICE NO. 5813

pursuant to the Commission for the Implementation of the Constitution mandate. During this formative period of transition to a devolved system of Government, the key concern of the Commission has been to ensure that the sovereignty of the people of Kenya is protected and the rule of law and constitutionalism prevails at all times. It has been our trite principle that constitutionalism cannot be sacrificed on account of political or administrative expediency. CIC facilitated the development of legislation for tabling in Parliament, while ensuring that the laws complied with the Constitution and reflected the will of the people of Kenya. However, it is emerging that the real threat to the implementation of the Constitution emerges from the legislature. Bills that claw back on the Constitution are tabled in Parliament. One such Bill is the County Governments (Amendment) (No.2) Bill published on 16th August, 2013 proposing to amend the County Governments Act, 2012 by inserting a new section to provide for the establishment of County Development Boards, comprising all elected persons and leaders in county government, in each county to approve development plans before implementation by the county executive. In giving Members of Parliament the coordination and implementation roles in County Governments, the Bill muddles the separation of executive and legislative powers. If passed, it would violate the principle on separation of powers. Another affront to devolution was the move by the National Assembly to pass the Division of Revenue Bill without involving the senate in flagrant breach of the Court. The Supreme Court issued an advisory opinion and stated that the Division of Revenue Bill, 2013 touched on county Governments thus required the Senate’s contribution and the Speaker of the National Assembly was wrong to disregard the Senate’s input. The emerging tussles on role sharing and differentiation call for a deeper understanding of each institutions role and respect for separation of powers and functions. 22nd August, 2014 THE KENYA GAZETTE 2183 CIC also continued to engage various stakeholders to ensure the effective implementation of the Constitution. In particular, due to the crisis in the health sector occasioned by industrial action by health workers, CIC held a series of meetings with ministry of Health, health sector practitioners and the President. Among the key issues discussed included devolution of functions, restructuring of the ministry, unbundling of health functions, health care financing and human resource matters. I urge all our stakeholders to read this report taking time to reflect on how to build on the progress realised, as well as take decisive action based on the challenges and recommendations presented in order to move the implementation agenda forward. Once more, I wish to express my gratitude to the people of Kenya, our development partners for material and technical support throughout the implementation journey, and the CIC team for continued service to the people. CHARLES NYACHAE, Chairperson EXECUTIVE SUMMARY Sections 5(6)(c) and 15(2)(d) of Sixth Schedule to the Constitution of Kenya 2010 and Section 4(a) of the Constitution for the Implementation of the Constitution (CIC) Act, 2010 require CIC to submit to the People of Kenya, Parliament and the President quarterly reports on: (i) _ the progress in the implementation of the Constitution; and (ii) any impediments to the implementation of the constitution; CIC’s reporting mandate is further articulated by Section 25 of the CIC Act, 2010 which requires the Commission to prepare and submit the report to the Parliamentary Select Committee and the President a progress report on: (iii) The progress in the implementation of the constitution; (iv) Any impediments to the implementation of the constitution; (v) Any legal and administrative measures to address specific concerns identified by the Commission; and (vi) Any other information relating to its function that the Commission considers necessary. This report covers the period October to December 2013 and, in line with CIC’s reporting mandate, provides highlights on: (i) | The progress in the implementation of the Constitution; (ii) The preparation of the legislation required by the Constitution and any challenges in that regard; (iii) The process of establishing new commissions; (iv) The process of establishing the infrastructure and systems necessary for the proper operations of county governments; (v) Challenges to the process of implementing the Constitution; During the period, the Commission continued to work with various government ministries, agencies and departments (MDAs) on review and development of policies, legislation and administrative procedures. A total of eight policies, which are at different stages of development, were reviewed. These include Kenya Health Policy, Ambulance Policy, Water Policy, Wildlife Conservation and Management Policy, National Policy on Older Persons and Ageing, Public Participation Policy and National Policy on Culture and Heritage. Since the promulgation of the Constitution in August 2010, a total of 191 legislation have been enacted. The County Governments have also enacted, since March 2013 a cumulative of 71 laws. During the reporting period, eleven Bills were reviewed by CIC and released for publication and tabling in Parliament, while nine Bills were still under review in CIC. Annex 2 provides details of (a) Bills reviewed by CIC and released for publication and tabling in Parliament (b) Bills under review at CIC (c) Published Bills under Review by Parliament (d) Bill under review by County Assemblies (e) List of Legislation enacted after review by CIC (Pursuant to Art. 261 of the Constitution) (f) Cumulative list of laws enacted after the promulgation of the Constitution (National Assembly, Senate and County Assemblies). During the reporting period, the Commission reviewed the Leadership and Integrity Regulations, the National Intelligence Service Regulations, Public Finance Management Act Regulations, National Police Service Commission (County Policing Authority) Guidelines 2013 and Guidelines on Conduct of Business of County Policing Authority 2013. The guidelines were thereafter submitted to the Attorney General, Kenya Law Review Commission, the National Police Service Commission, and the Inspector General and the Ministry of Interior and National Government Coordination. CIC continued the development of a publication to guide policy makers and members of the public on effective implementation of the principle of public participation as provided under Article 10 of the Constitution. CIC is mandated to work with Constitutional Commissions and Independent Offices in monitoring, overseeing and facilitating the implementation of the Constitution. All the constitutional commissions and independent offices envisaged in Chapter 15 of the Constitution have been established according to the law and are operational except the Kenya National Commission on Human Rights, Teachers Service Commission and National Gender and Equality Commission due to unresolved pending issues on appointment of the remaining commissioners. In monitoring the implementation of the system of devolved government, the Commission developed a comprehensive tool for tracking implementation progress of key aspects of devolution. In addition, the Commission received and analysed progress reports on implementation of the Constitution from twenty county assemblies on four key areas namely; legislative role, approval/authorization role, oversight role and the role of representation of the people. The Commission also analysed all monthly, quarterly and annual reports submitted by the Transition Authority over the period July 2012 to June 2013. The analysis sought to evaluate the processes and activities accomplished as per Section 7 and the Fourth Schedule of the Transition to Devolved Government Act, 2012. The analysis found out that critical transition activities including auditing of assets and liabilities, functional analysis and capacity assessment of counties were not completed as envisaged hence adversely affecting transition to the system of devolved government. To facilitate devolution, the Commission held a number of consultations with various stakeholders on the implementation of system of devolved government, including; ° A meeting with the Ministry of Health on effective implementation of the right to health. Key issues discussed were legislation and restructuring of the ministry, to recognize the allocation of functions in the 4th schedule to the Constitution and national and public service values and principles. ° Meetings with key stakeholders on emerging issues of seconded officers to County Governments. Committees were formed and follow up meetings scheduled for the month of January 2014 to review the possible solutions. It was recommended that a Public Service Bill and regulations should be drafted to address issues during the interim period. In regards to pension, a technical team, chaired by the Retirement Benefits Authority (RBA), was formed to review various options and make recommendations for consideration. ° A meeting with the President that also discussed issues on devolved health functions and seconded staff. ° A meeting with members from the Justice and Legal Affairs committee of the county assembly of Mombasa was held to sensitize them on the role of CIC in the implementation of the system of devolved government. The meeting discussed among other things, transfer of functions without resources. ° A stakeholder forum held to review a draft County model law on public participation intended to guide the County Governments in the preparation of relevant legislation on public participation. The Commission also visited Nyeri and Kericho county governments to assess the implementation of the system of devolved government. Discussions were held with the respective governors, county assembly members and the executive on the progress and challenges in implementation of the system of devolved government. It was noted that for the county government to deliver on its mandate, the county assemblies and the county executive have to cooperate and complement each other, and acquaint themselves with relevant Acts of Parliament relating to Devolution. As part of its effort to promote constitutionalism and protect the sovereignty of the people, CIC issued a number of advisories and media statements, engaged stakeholders and was party to petitions on constitutional matters. The Commission issued statements on Affront to Devolution by the Senate; Kenya Information and Communications (Amendments) Bill, 2013; Adjournment/suspension of Sittings of County Assemblies; and the threat to arrest journalists over the Westgate attack. CIC was also enjoined as a respondent in three new cases and continued to pursue other pending cases as well. Finally, the Commission supported Retirement Benefits Authority and Insurance Regulatory Authority to commence the development of strategies for Change Management for constitutionalism. The implementation of the Constitution faces challenges some of which have remained persistent, such as the delay by the national executive to complete legislation, policies and regulations. Those facing implementation of the system of devolved government include lack of common understanding of roles between the members of the county assembly and executive; unfinished functional analysis; devolution of services without adequate resources; delay in setting up of required structures; limited understanding and application of laws on devolution; limited capacity in the counties to develop county policies and legislation; inadequate legal framework to guide secondment of staff to County Governments; failure of the National Government to respect the County Governments and other independent institutions; and the delays in issuing of County Transition Implementation Plan Guidelines. To address some of the challenges, it is recommended that; (a) The National Government draw a comprehensive capacity building programme on constitution implementation in general and devolution in particular. (b) The AG office should provide technical support to counties on drafting their legislation. (c) CIOC should the lead to push for finalisation of policies, legislation and regulations that have remained uncompleted for a long period. (d) The national government should finalise, as a matter of urgency the necessary intergovernmental mechanisms provided for in the Intergovernmental Relations Act, 2012. Key to these are the intergovernmental relations technical committee, sectoral working groups/committees and joint committees, to address intergovernmental concerns. (e) Overall, CIC recommends the need for all institutions to respect the Constitution for its effective implementation. PART ONE MANDATE OF THE COMMISSION The Commission for the Implementation of the Constitution (‘the Commission’) is established under Section 5(1) of the Sixth Schedule to the Constitution. The mandate of the Commission is stipulated in Sections 5(6), and 15(2)(d) of the Sixth Schedule to the Constitution, Section 4(a) of the Commission for the Implementation of the Constitution Act 2010, and Section 15 of the Transition to Devolved Government Act, 2012. The functions of the Commission include: (a) Monitoring, facilitating and overseeing the development of legislation and administrative procedures required to implement the Constitution; (b) Co-ordinating with the Attorney-General and the Kenya Law Reform Commission in preparing for tabling in Parliament, the legislation required to implement the Constitution; (c) Reporting every three (3) months to the Constitutional Implementation Oversight Committee on: (i) Progress in the implementation of the Constitution; (ii) The preparation of the legislation required by the Constitution and any challenges in that regard; (iii) The process of establishing new commissions; (iv) The process of establishing the infrastructure necessary for the proper operations of each county including progress on locating offices, assemblies and establishment and transfer of staff; (v) Any impediments to the process of implementing the Constitution; (d) Working with each Constitutional Commission to ensure that the letter and spirit of the Constitution is respected; (e) Monitoring and overseeing the transition process to devolved government and ensure that the system of devolved government is implemented effectively. (f) | Exercising such other functions as are provided for by the Constitution or any other written law, and; The Commission is further obligated to observe the objects of Constitutional Commissions and Independent Offices as set out in Article 249 (1) of the Constitution, which are: (a) Protecting the sovereignty of the people; (b) Securing the observance by all State organs of democratic values and principles; and (c) Promoting constitutionalism. 22nd August, 2014 THE KENYA GAZETTE 2185 In discharging its mandate, the Commission is obliged to observe, promote, respect and protect national values and principles of governance as stipulated in Article 10 of the Constitution. This report is prepared and submitted pursuant to the reporting requirements of the Commission stipulated in Sections 4(a), 4(d) and 25(1) of the CIC Act. PART TWO ACHIEVEMENTS This part of the report covers the achievements made in realising CIC’s mandate of review and development of policies, legislation and administrative procedures as well as working with Constitutional Commissions. 2.1. Review and Development of Policies During the reporting period, the Commission engaged with various ministries and departments to facilitate, monitor and oversee review and development of the following policies: 1. Kenya Health Policy The Kenya Health Policy 2012-2030 which sets the framework for improving the overall status of health in Kenya in line with the Constitution, global commitments and the Vision 2030. During the period, CIC enhanced stakeholder engagement in the policy making process, specifically by engaging with county governments to receive input into the draft policy. The following written comments were received from eight counties namely: Kakamega, Baringo, Garissa, Embu, Kisii, Nakuru, Kiambu and Taita Taveta. (a) Service Delivery — The service delivery packages should be clearly defined to ensure that highest standard of health is provided and no person is denied emergency service. The packages should include emergency care, definitive treatment after emergency care, elective treatment, promotive and preventive treatment and rehabilitation. (b) Supplies and products -The policy should be clear on the mechanisms that will ensure there are no stock outs of the essential drugs and supplies. (c) Health information -The policy should provide for strengthening the health sector District Health Information system (DHIS), a web based system, so that counties and national government have a shared information platform. Further, it should provide for a framework that facilitates real time information gathering and guidance on capturing relevant none-health facility data. (d) Health Leadership — The policy should provide clarity on the role of the Ministry of Health at the National Level, including establishment of an institute for training managers on health care. (e) Health infrastructure — Provisions on infrastructure should be expanded to include guidelines on standards to be maintained and equitable access across counties - every county should have a level 5 hospital and sub-county to have a level 4 hospital. (f) Health Workforce — Recognizing the importance of human resource in the health sector, counties proposed that provisions on the following be expounded: recruitment, promotion, demotion, discipline and transfers within and across counties. Additionally, provisions should be included on capacity building and career progression. (g) The policy should also provide clarity on other issues affecting the health sector including traditional birth attendants and complimentary medicines; diagnostic capacity of the facilities in regard to the non-communicable diseases including preventive health through lifestyle and behavior change; clear criteria for referral to national referral facilities from county referral facilities and cost implications to the patients and county governments. The Commission shared these recommendations and held a meeting with the Ministry of Health in November 2013. It was agreed that the Ministry would revise the Policy to take into account the recommendations. Thereafter the Policy would be subjected to stakeholder consultation as a step towards finalizing it. 2. Ambulance Policy During the July-September 2013 quarter, CIC reviewed the concept paper from the Ministry of Health on the development of an Ambulance Policy. The Commission recommended that the policy should focus on emergency services broadly, since it is a shared function. This would ensure holistic and effective realization of the right to health as provided under Article 43 of the Constitution. In the next quarter, CIC will engage key stakeholders in the development of the proposed policy. 3. Water Policy, 2013 The Commission reviewed the draft Water Policy to align it with the Constitution of Kenya. The review took into account recommendations from stakeholders of the national and county governments. Some of the key recommendations were: (a) The need to include administrative references in the law rather than in policy. (b) That principles captured in the policy be clarified. (c) That the inclusion of innovative financial mechanisms into the policy be explored. 4. Wildlife Conservation and Management Policy, 2013 The draft Wildlife Conservation and Management Policy provides for the protection, conservation, sustainable use and management of wildlife in Kenya. The Commission reviewed the draft policy and raised key issues including, the need for requisite, legal, and regulatory structures for the separation of functions on administration, management, and licensing within framework of devolved system; ensure the sustainable conservation and management of wildlife and their habitats in their protected and unprotected areas; and conserve and manage wildlife resources as a national endowment for sustainable development, wealth creation and employment. 5. National Policy on Culture and Heritage, 2009 The Ministry of Sports, Culture and Arts is in the process of reviewing the National Policy on Culture and Heritage (2009 version). The policy is aimed at ensuring that all persons are able to express culture and heritage in all facets of their lives as well as ensuring equal access for all cultures to art and to specific technological knowledge pursuant to Article 11 of the Constitution. CIC participated in and provided technical support to the initial stakeholder forum organized to review the policy. During the stakeholder meeting, there was general consensus on the need to align the current policy to the Constitution of Kenya 2010. It was agreed in the meeting to constitute a smaller team to develop a draft of the revised policy which would be presented to the rest of the team by 31st March 2014. 6. National Policy on Older Persons and Ageing The Ministry of Labour, Social Security and Services is in the process of developing a National Policy on Older Persons and Ageing. The policy seeks to ensure that older persons are treated as valuable members of the society and their rights and interests are recognized and promoted in line with Article 57 of the Constitution. The Article obligates the state to ensure the rights of older persons are observed, promoted, protected and fulfilled. As part of the development process, the Ministry organized a one-day stakeholder forum on 6" November 2013 to discuss the draft policy to align it with the Constitution. Among the key recommendations were: (a) Ensure that county governments are involved in the development of the policy. (b) Incorporate intergenerational justice for the rights of older persons through inclusion of a thematic area in the policy on access to justice for older people. (c) Audit existing laws and policies as well as service charters to ensure they are sensitive to the needs and interests of older persons. (d) Include provisions that will ensure protection of older persons as consumers in line with Article 46 of the Constitution. (e) Ensure all the rights of older persons are adequately provided for in the policy. These include: protection of older persons against violence and negative cultural beliefs and practices, poverty eradication; access to information, provision for geriatrics in health programming. The Ministry undertook to revise the policy to include the above recommendations and circulate it to stakeholders for a review, and thereafter forward to CIC for final review. 7. Sessional Paper No. 14 of 2012 on Reforming the Education and Training Sectors in Kenya CIC began the review of Sessional Paper with purpose of establishing the following: (a) whether or not the policy meets the requirements of the CoK 2010; (b) whether or not the policy relates to the current world context; (c) whether the policy address current and emerging issues in the Kenyan and global education contexts; (d) whether or not the policy will bring about desired reforms; (e) whether the policy is technically sound; (f) identify any aspects of the policy which need review, change or improvement; (g) advise on how the national values and principles of the Constitution can be embedded into the system of education through the policy; (h) identify priorities for new legislation on education; (i) propose additional content for inclusion in the policy to aid reforms in the education sector in ways responsive to national goals and aspirations; (j) provide between two and four possible scenarios for approaching the implementation of the policy, with the possible impact of each scenario on the country, the Constitution and the people’s aspirations. The review of this sessional paper will be completed in the coming quarter. 8. Public Participation Policy The Constitution codifies national values and principles under Article 10(2) which include the “participation of the people’ in the review, formulation and implementation of public policies, administrative decisions and procedures, enactment and application of the law. Other constitutional provisions that provide for public participation include: Articles 69(1), 94, 118, 159, 174 (c), 196, 201 (a), 232, 159 of the Constitution. The Commission is currently working with the Office of the Attorney General and Department of Justice to finalize the concept paper on the development of a public participation policy. The will guide policy makers and members of the public in ensuring effective implementation of the principle of public participation as provided under Article 10 of the Constitution. 2.2 Review and Development of Legislation The Fifth Schedule to the Constitution identifies 48 Articles of the Constitution that require legislation within a period of five years from the promulgation of the Constitution to implement the Constitution. The Schedule also provides for “Any other legislation required by the Constitution”, to be developed within five years of promulgation of the constitution. Further, Section 7(1) of Fifth Schedule provides that “All laws in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution”. This provision calls for an audit for compliance with the Constitution, of all laws existing before the effective date. The Commission thus has continued to work with the National and County Executives and other stakeholders to facilitate the review of existing laws and development of new legislation according to the procedure in Article 261(1) and (4) of the Constitution. Since the promulgation of the Constitution, a total of 191 legislation have been enacted. In addition, county governments have enacted a total of 71 legislation to facilitate their delivery of services to their county residents. During the reporting period, the following laws, were reviewed for alignment with the Constitution: 1. Wildlife Conservation and Management (Amendment) Bill, 2013 The Amendment Bill provides for the protection, conservation, sustainable use and management of wildlife in Kenya. The Commission reviewed the draft (Amendment) Bill, identified gaps and made recommendations to the Parliamentary Committee on Environment and Natural Resources. The committee adopted the recommendations and the Bill was assented to by the President on 24th December, 2013. 2. Water Bill, 2013 The Bill provides for the regulation, management and development of water resources, water and sewerage services. During this reporting period, CIC worked with stakeholders from both County and National levels of Government to review the Bill. Substantive recommendations made included: the need to recognize water services as a devolved function, and to reduce the number of proposed institutions under the Bill. It was also recommended that county governments and local communities be engaged in development, provisions and management of water services and management of the water resources within the jurisdiction of each county government. 3. Community Land Bill, Evictions and Resettlement Procedure Bill, 2013, and Physical Planning Bill, 2013 The Commission received from the Attorney General’s Office three Bills for review ° The Community Land Bill, which provides for the recognition, protection, management and administration of community land, ° The Evictions and Resettlement Procedure Bill, providing for procedures applicable to all forms of evictions, and providing for protection, prevention and redress against eviction for all occupiers of land, including unlawful occupiers and for matters incidental, and ° The Physical Planning Bill, which provides for the preparation and implementation of physical development plan. 22nd August, 2014 THE KENYA GAZETTE 2187 The Bills will be subjected to public participation in 2014. 4. The Victim Protection Bill, 2013 The Commission received two Bills relating to the protection, rights and welfare of victims of offences, namely: the draft Victim Protection Bill, 2013 and the draft Victim of Offences Bill, 2013 from the Parliamentary Committee on Legal Affairs and the Ministry of Interior and Co-ordination of National Government respectively. The two legislative proposals were reviewed by CIC and harmonized into the Victim Protection Bill, 2013. They were submitted to Parliament for publication. 5. The Basic Education (Amendment) Bill, 2013 During the reporting period, CIC received additional views from key stakeholders including representatives of the church, parents associations, Parliament and the Ministry of Education on proposals to amend the Basic Education Act to incorporate provisions on Learners with Disabilities. The Commission worked with AG and KLRC to draft an amendment Bill to the Basic Education Act to incorporate the provisions dealing with learners with disabilities. The Amendment Bill that is currently being prepared by the AG will be subjected to stakeholder consultation sometime early 2014. 6. The Legal Aid Bill, 2013 The draft Legal Aid Bill, which seeks to give effect to Articles 19 (2), 48 and 50 (2) (g) and h) of the Constitution, was submitted to CIC from the office of the Attorney General for review. The Commission has commenced an internal review of the Bill and will subject it to stakeholder consultations early 2014. 7. Public Service Commission (Amendment) Bill, 2013 CIC convened a round table meeting to finalize the review of the Public Service Commission (Amendment) Bill, 2013, which gives effect to Articles 233 and 234 of the Constitution. The meeting was attended by the Public Service Commission, the Kenya Law Reform Commission, the Ministry of Devolution and Planning and the Ministry of Labour, Social Security and Services. The Bill was then forwarded to the Office of the Attorney-General on 30th October, 2013 for publication. 8. Work Injury Compensation Bill, 2013 The draft Bill was submitted to CIC by the Ministry of Labour Social Security and Services and is currently under internal review as the Commission awaits formal submission from the office of the Attorney General. 9. Health Bill, 2013 The Health Bill, 2013 seeks, among others to consolidate all laws relating to health and establish a unified health system. CIC received the Health Bill together with the Health Policy from the Ministry of Health and forwarded them to County Governments for comments. The Commission has so far received comments from four counties namely; Kisii, Nakuru, Kiambu and Taita Taveta. The comments are specific to the different clauses in the Bill. During this reporting period, the Commission held a meeting with the Ministry of Health where it was agreed that the Ministry would revise the Bill based on the comments from the counties. The revised Bill will be subjected to stakeholder consultations within the next quarter. 10. Counselors, Psychologists and Psychotherapist Bill, 2013 During the reporting period, a technical team constituted to consolidate the Counsellors, Psychologists and Psychotherapist Bill 2013 and the Psychologists and Counsellors Bill 2013 held several meetings to harmonize Bills to provide for the training, registration, licensing and practice and standards of Counsellors, Psychologists and Psychotherapist. Despite these efforts, the Counsellors, Psychologists and Psychotherapist Bill, 2013 was introduced in Parliament without the proposed harmonisation and is now in the first reading. CIC continues to monitor the progress of the preparation of the harmonized Bill. 11. Family Law Bills: Marriage Bill 2013; Matrimonial Property Bill 2013 and Protection Against Domestic Violence Bill, 2013 During previous reporting periods, CIC facilitated, monitored and oversee the development of three Family Bills that were subsequently tabled in Parliament. Of the three, only one has been enacted, i.e., the Matrimonial Property Bill. The Marriage Bill has been pending since July 2013 while the Protection Against Domestic Violence Bill, 2013 has passed the first reading. CIC continues to monitor the discussions relating to the Bills. 12. Foreign Service and Diplomatic Representation Bill, 2013 CIC received the Foreign Service and Diplomatic Representation Bill, 2013 from the Ministry of Foreign Affairs. The Bill provides for the establishment, operations and functions of the Foreign and Diplomatic Services of Kenya. The Commission audited the Bill and circulated it for further comments to key stakeholders, including the Ministry of Interior and Coordination of National Government, Public Service Commission, Salaries and Remuneration Commission, Office of the Attorney General and the Kenya Law Reform Commission for their review. During the next quarter, the Commission has scheduled a roundtable meeting to deliberate the recommendations and finalise review of the Bill. 13. National Identification and Registration Bill, 2013 and the Refugee Bill, 2013 In 2011, CIC received 5 Bills from the then Ministry of Immigration and Registration of Persons. These were: ¢ the Kenya Citizens and Foreign Nationals Management Services Bill, 2011 ¢ the Kenya Citizenship and Immigration Bill, 2011 ¢ — the Identification and Registration of Citizens Bill, 2011 ¢ the Births and Deaths Registration Bill, 2011, and ¢ the Refugee Bill, 2011. The first two were enacted in August 2011. With regards to the remaining Bills, it was agreed that the Identification and Registration of Citizens Bill and the Births and Deaths Registration Bill would be merged into one Bill, i-e., the National Identification and Registration Bill, 2013. During the reporting period, CIC facilitated consultations with the Management Service Board established under the Citizens and Foreign Nationals Management Services Act, 2011 to discuss the appointment and allocation of duties to directors and other personnel of the Service, as provided for in the Identification and Registration of Persons Bill, 2013. During the meeting, the Board identified among other key issues for consideration: (i) the need to amend the Kenya Citizens and Foreign Nationals Management Service Act, 2011 to provide for a directorate of Refugees, and (ii) the need for consultations with the Public Service Commission, in matters relating to appointment and allocation of duties to directors and personnel of the Service. Further, it was agreed that the Board would review the two Bills against the enacted legislation on citizenship and immigration. 2.3 Review and Development of Administrative Procedures and Institutional Structures 1. Leadership and Integrity Regulations During the reporting period, the Ethics and Anti-Corruption Commission held a stakeholders forum to review the draft Leadership and Integrity Regulations. The forum was attended by a wide range of stakeholders including, CIC, Federation of Kenya Employers (FKE), Association of Professionals East Africa (APSEA), the National Intelligence Service (NIS) among others. It was agreed that EACC would consider the views given by stakeholders and forward the draft regulations to CIC for internal review. 2. National Intelligence Service Regulations The National Intelligence Service Council is mandated by Section 33 of the Public Officers Ethics Act, 2003 to establish procedures for declaration of wealth, assets and income for disciplined forces for which NIS is responsible. The NIS Procedures for Administration of Part IV of Public Officers Ethics Act were developed in line with this delegated mandate. Draft guidelines were reviewed and are awaiting further technical input in roundtables to be convened in the first quarter of 2014. 3. Public Finance Management Act Regulations The Public Finance Management Act, Regulations were developed by the National Treasury pursuant to Section 205 of the Act. During the reporting period, the Commission together with the National Treasury organized stakeholder consultations to get views on the Regulations. The forum brought together various institutions including, the National Treasury, CIC, Commission on Revenue Allocation, County Executive Members responsible for finance, various Non Governmental Organizations and professional organizations including, Institute of Certified Public Accountants Kenya (ICPAK) and Kenya Private Sector Alliance (KEPSA). Subsequently, CIC reviewed the draft regulations and made recommendations to the National Treasury. 4. County Policing Authority Guidelines CIC reviewed two sets of guidelines for county policing: (a) National Police Service Commission (County Policing Authority) Guidelines 2013. These provide for procedures for establishment of County Policing Authorities pursuant to Sections 41 of the National Police Service Act 2011. (b) Guidelines on Conduct of Business of County Policing Authority 2013. These guidelines provide procedures for the conduct of business of county policing authorities established under Section 42 of the National Police Service Act 2011. The guidelines were then submitted to the Attorney General, Kenya Law Review Commission, the National Police Service Commission, and the Inspector General and the Ministry of Interior and National Government Co-ordination. 2.4 Working With Constitutional Commissions and Independent Offices The Constitution, in several Articles and Chapter 15 establishes independent commissions and independent offices!. Each constitutional commission and independent office has to discharge its specific mandate in accordance with general objects, functions and powers under Articles 248 to 254 of the Constitution. All the constitutional commissions and independent offices envisaged in the Constitution have been fully established according to the law except the Kenya National Commission on Human Rights, Teachers Service Commission and National Gender and Equality Commission. The TSC had its nominees rejected by the National Assembly, while the Court stopped the Kenya Human Rights Commission recruitment process. Following the adoption by the Constitutional Commissions and Independent Offices (CC&IOs) of the concept paper on the Working Modalities of CC&IOs, a technical committee was tasked with the responsibility of identifying key activities to be undertaken. The Commission drew up Terms of Reference for the Technical Committee, which was subsequently adopted at a meeting held on 4th October 2013 mandates of various CC&IOs be developed and shared. It is envisaged that this engagement of CC&IOs at the Chairperson/Commissioners level (through the Chair’s Forum), the CEO/Secretaries and the Technical teams will lead to a more harmonious working relationship between the offices as well as improved service delivery to the people of Kenya. The three-pronged approach also means that issues identified and discussed at the technical meeting will be escalated to the CEOs and subsequently to the Chairpersons’ Forum. PART THREE IMPLEMENTATION OF THE SYSTEM OF DEVOLVED GOVERNMENT The Constitution, under section 15(2) (d) of Sixth Schedule, mandates CIC to monitor the implementation of the system of devolved government, including monitoring the operationalization of the constitutional provisions on devolved government as provided for in Chapter Eleven of the Constitution. This also includes the review and development of policies, legislation and administrative procedures required to implement the system of devolved government. In pursuit of this mandate, the Commission tracks and reports on progress and challenges in the implementation of the system of devolved government. During the reporting period, CIC undertook several activities to ensure that the implementation of the system of devolved government was on track and complying with the letter and spirit of the Constitution. These include:. Development of a Devolution Monitoring Tool The Commission analysed foundational laws for the governance of counties2 and developed a comprehensive devolution monitoring tool. The tool provides a simplified template for tracking implementation of key aspects of devolution, including, ' The Kenya National Human Rights and Equity Commission, The National Land Commission, The Independent Electoral and Boundaries Commission, The Parliamentary Service Commission, The Judicial Service Commission, The Commission on Revenue Allocation, The Public Service Commission, The Salaries and Remuneration Commission, The Teachers Service Commission, and The National Police Service Commission. Independent Offices are the Auditor-General and the Controller of Budget. ° The Constitution of Kenya, 2010, The Elections Act 2011, The Transition to Devolved Government Act, 2012, The Urban Areas and Cities Act 2011, The County Government Act 2012, The Public Finance Act 2012, The County Governments Act, 2012, Intergovernmental Relations Act, 2012, and The National Government Coordination Act, 2013 22nd August, 2014 THE KENYA GAZETTE 2189 (a) transfer of functions between both levels of Government; (b) policies, legislation, regulations and plans to facilitate implementation of the system of devolved government; (c) financial, human capacities, structures and systems to facilitate implementation of the system of devolved government; (d) the establishment of decentralized units, urban areas and cities; and (e) public participation and access to information. Establishment of Structures and Systems of County Governments The Constitution of Kenya requires county governments to develop institutional structures and systems necessary for the effective implementation of the Constitution. Some of the structures envisaged include the county assemblies, county executives, county public service boards and county executive committees. These key structures have been established in all the counties. The Commission continues to monitor the establishment and capacity building of these structures to ensure that they effectively discharge their respective mandates at the County Level. 3.1 Analysis of County Assembly Reports During the reporting period the Commission received and analyzed reports from 20 County Assemblies. The analysis indicates various levels of achievements by the County Assemblies of their functions under 4 key areas namely; legislative role, approval/authorization role, oversight role and the role of representation of the people, as required by the Constitution. The results below are based on the 20 counties that submitted reports during the period. (1) Legislative Role Overall, 31 different pieces of legislation were processed. The most common being the County Appropriation Bill (50%), the County Finance Bill (35%), Supplementary Appropriation Bill (15%) and the Alcoholic Drinks Bill (10%). A total of 6 Bills were gazetted over the period. County executives originated 87% of the Bills while county assemblies and members of the public originated 10% and 3% of the Bills respectively. (2) Approvals and Authorization (a) (b) (c) (d) (e) (f) (g) Development of Policies at National Level: As reported in section 2.1 of Part Two of this report, there are a number of sector- based policies in the process of development. Approval of County Policies: Three (Kericho, Meru, Murang’a) out of twenty counties processed various policies, with two counties approving the policies and one being work in progress. This represents some improvement from the first quarter report where all the policies were work in progress. There is need to engage more in policy review/development to ensure that the Bills processed are guided by specific policies. Approval of County Plans: During the reporting period, majority (95%) of the county assemblies processed at least one of the plans required in the management of the counties, totaling to approval of ten different plans. These included County Integrated Plan, County Development Plan, County Sectoral Plans, Development and Management of County Institutions, County Governments Transition Implementation Plan, Cities and Urban Areas Plans, County Spatial Plans, Management & Exploitation of County Resources and Development & Management of County Infrastructure. Most of the plans processed were reported as work in progress. This is a marked improvement from the first quarter report where most counties had not commenced development of plans. Approval of Nominees to County Public Offices: Majority of the county assemblies (90%) have approved various nominees to the county public offices as provided for in the Constitution. These included county executive committee members, the chairpersons and members of the county public service boards and the county assembly representatives in the County Assembly Service Boards. The results indicate that the County Governments are in the process of establishing the necessary structures for the performance of their functions. The process however needs fast-tracking to avoid unnecessary delays in the service delivery. Fiduciary Approvals: Eleven counties (out of 20 that reported) had approved the budget expenditures and the County Appropriation Bills. Two County Assemblies (Kakamega and Murang’a) had approved other budget framework requirements including a framework for county treasury to manage county public funds, and establishment of Emergency Fund. Other approval items were reported as work-in-progress in different counties including; ° Fiscal strategy paper, ° Borrowing for county governments, ° Framework for county treasury to manage county public funds, ° County public debt, ° County wage bill (percentage of total county government revenue) ° County Appropriation Bill, ° Temporary deviation from county fiscal strategy paper, ° Regulations and prescription of criteria for establishing and dissolving county corporations, ° Establishment of emergency fund, framework and criteria by county executive, ° Debt management strategy of the county by county treasury. Approval of Symbols: Thirteen of the twenty County Assemblies have initiated processes for identification of various county symbols. Most of the processes were reported as work-in- progress with only three County Assemblies (Baringo, Elgeyo Marakwet and Turkana) having approved the County court of arms symbol, two (Elgeyo Marakwet and Turkana) approved the county Public Seal and one (Turkana) approved the county flag. Close coordination is required to ensure non-resemblance of the respective county symbols as per Section 4(4) of the County Governments Act. The counties should also ensure appropriate legislation and public participation in in development of these symbols. Approval of Decentralized Units: Over 12 County Assemblies have at least engaged in the processes of approving various decentralized units, including urban areas and cities, sub-counties, wards and village units. Three of them (Bomet, Kericho and Murang’a) approved the sub-county units, and two (Bungoma and Murang’a) approved the wards and one (Bomet), approved the urban areas and cities. However, there is need to ensure that the establishment of various decentralized units are fully backed by appropriate legislation and resources to operationalize them. (3) Oversight Roles of the County Assembly The oversight roles performed by various county assemblies comprised mainly of summonses of public officers to respond to and provide statements over various issues in the county (100%); vetting and approval of nominations and appointments of various officers (95%), including the CSPB, requests, receipt and deliberations on reports and statements from the executive on various issues (30%), and approval of various county plans including county integrated development plans and procurement plans. Some of the statements and reports discussed include status of the Local Authority Support (LAS) projects for the year 2011/2012, progress reports from various ministries, and audit reports. (4) Representation of the People Over the reporting period, counties reported to have engaged the public on various issues, such as public hearings on county Bills (12 counties), motions under discussion in parliament (6 counties), hearing of petitions from the public on various issues affecting the counties (3 counties), and public hearings on the budget (3 counties). Other consultations held with the public were establishment of disaster management schemes and peace building initiatives, establishment of administrative structures including the village units, offices and county resources. 3.2. Analysis of TA Report During the reporting period, the Commission analysed all monthly, quarterly and annual reports’ submitted by the Transition Authority over the period July, 2012 to June, 2013. The analysis evaluated the processes and activities accomplished as per Section 7 and the Fourth Schedule of the Transition to Devolved Government Act, 2012. The details of the analysis are found in the analysis report “Analysis of Transition Authority Progress Reports and Evaluation of Performance, December 2013”. 3.2.1 Audit and Validation of Assets and Liabilities The initial attempt to audit assets and liabilities was made in September 2012. The Fourth Schedule of Transition to Devolved Government Act, 2012 requires the Transition Authority (TA) to carry out the audit, which entails assets, debts and liabilities of the National government, public agencies and Local Authorities. Only sixteen (16) Local Authorities submitted reports to TA on their assets. The Ministry of Public Works submitted a report on public buildings and the land. There were poor responses from the MDAs and Local Authorities, and there is no evidence that this activity has been finalised. Some county governments, such as Kiambu are undertaking independent audit of assets to create their own inventories. So far, there is no inventory of assets, debts, liabilities and infrastructure. 3.2.2 Auditing of Human Resources of National Government, Local Authorities, and other Public Entities. The Fourth Schedule to the Transition to Devolved Government Act, 2012 stipulates that TA shall audit government staff and local authority staff in counties to establish the number of staff in each county by cadre, grades, gender, age and qualification. This is one of the priority activities for effective devolution because human resources are the driver of service delivery and development at all levels of government. The Transition Authority reported that it had held several consultative meetings with public institutions including the Public Service Commission, Ministry of State for Public Service, Ministry of Local Government and the Office of the President. The Authority also made contacts with the State Corporations Advisory Committee and the Teachers Service Commission, and developed data collection tools and sourced information from the Integrated Personal Payroll Database. The issue of staff is still a challenge to county governments. Some counties such as Mombasa and Nairobi started experiencing problems relating to a high wage bills and the existence of ghost workers, with Nairobi having over two thousand employees. 3.2.3. Civic Education The Fourth Schedule of the TDG Act, 2012 requires the TA “to facilitate civic education, to ensure civic education on devolution is commenced and coordinated.” The expectations are that the TA would focus on the entire population and map out an effective civic education programme on devolution and strategies to reach all Kenyans. Besides public employees, the TA should focus on the general public, school children and college students, who would be the long-term carriers of values and principles of devolved governance. To implement civic education, TA embarked on the process of mapping out on-going civic education activities by public institutions and civil society groups to determine its entry point. The TA engaged the Kenya National Integrated Civic Education (K-NICE) to produce civic education materials, which the organization submitted to TA in October 2012. In November 2012, TA developed a manual and curriculum for sensitization of public officers on transition to devolved governments. From the county visits conducted, it is apparent that there are gaps in awareness among the majority of Kenyans regarding devolution and transition to the system of devolved government. They are, therefore, unable to objectively interrogate the process of transition to devolved governance, and demand accountability from their County and National Government leaders. This demonstrates that civic education was not effectively carried out due to poor focus and misinterpretation of mandate. The roadmap for civic education would have highlighted the target population, the process for facilitation and stakeholder involvement, clear objectives and content, institutional framework for implementation, monitoring and evaluation. 3.2.4 Preparation of Initial County Budgets The Fourth Schedule of the TDG Act, 2012 {section (h)} mandates the Transition Authority to “facilitate the initial preparation of county budgets, to ensure such budgets are agreed upon.” The nature and timing of support provided by TA to counties in preparation of their budgets is not clear. Hence, county budgeting became one of the most contentious issues after the inauguration of County Governments, where Governors came up with incredibly lavish and spurious budgets. This is partly attributable to poor execution of initial budgetary process and related activities. The process was also undermined by politics and an unsupportive civil bureaucracy. This eroded the confidence and trust of government officials and members of the public in the Transition Authority. 3.2.5 Preparation of County Profiles County profiles are important for county planning because they provide vital information such as the area and boundary of a county, population, human activity, human and natural resource endowment, infrastructure and access, education and literacy. They also consist of county socio- economic development, challenges and strategies, development priority programmes and projects. The Transition to Devolved Government Act, 2012 requires TA to “facilitate the preparation of country profiles, to ensure that the profiles of counties are produced published and publicized.” These profiles were prepared and published by the Ministry of Planning and Vision 2030* in May 2013. Currently, counties are undertaking their own planning. * One annual report covering the period July 2012 to June 2013; quarterly reports for October to December 2012, January to March 2013, April to June 2013; monthly reports for August 2012, September 2012, November 2012, January, February, March, April, May and June 2013. The analysis does not include monthly reports for July and December 2012, and the quarterly report for July to September 2012, which were not available. * This is now a State Department under the Ministry of Devolution and Planning 22nd August, 2014 THE KENYA GAZETTE 2191 3.2.6 Functional Analysis and Competency Assignment Section (i) of the Fourth Schedule of the Transition to Devolved Government Act, 2012 requires an analysis of functions and competency assignment accompanied with a plan for distribution published and necessary Acts amended. This entailed the following: (a) Facilitating the analysis and phased transfer of functions provided for under the Fourth Schedule of the Constitution to the national and county governments. (b) Determining the resources requirements for each of the functions. (c) Coordinating the validation and publication of the country and national functions. (d) Establishing criteria that must be met before particular functions are devolved to county governments to ensure that those governments are not given functions which they cannot perform; and (e) Overseeing the transfer of functions from the national government to the county governments. In this context, the TA was expected to develop a framework for comprehensive transfer of functions, ensure transfer takes place and no level of government is given functions it cannot perform, and also play an oversight role during the transfer process. Functional analysis, unbundling of functions and competency assignment were not satisfactorily completed. This has led to unprecedented challenges in the transfer of functions to county governments, especially following a decision by the Summit to transfer at once all functions assigned to county governments. 3.2.7 Development of County Public Finance Management System Development of county public finance management system is phase one activity with a deadline of March 4" 2013. TA identified two specific activities to be undertaken to realize the intended goal. First, setting up of county government treasuries and their operationalization, and second, implementation of the Public Finance Management Act, 2012 in all counties. The Act established a framework for the management of county treasuries; the transition county budget process; transition revenue raising measures and expenditures for county governments; and responsibilities of transition county accounting officers and receivers of revenue. The setting up of County Treasuries has been fairly successful but with delays. Some Counties have employed staff from the National Treasury, who have technical knowhow in financial management and management systems to kick-start their functioning. There are however some notable capacity gaps and it is therefore proposed that capacity building for county financial management staff and revenue clerks should be done quickly to bridge the current deficiencies. 3.2.8 Mechanism for the Transition of National Government and Local Authorities Employees All Local Authorities staff were retained by County governments. National government staff, who rendered services which were transferred to County governments, were also seconded. However, staff rationalization is yet to be undertaken. 3.2.9 Assessment of Capacity Needs and Capability of National and County Governments The main purpose of this activity is to ensure that both levels of government have the capacity to effectively and efficiently perform their functions and provide services to the people of Kenya. The main activities are twofold: (a) Conduct capacity needs assessment of the National and County governments, and (b) Coordinate and facilitate provision of assistance to National and County governments in enhancing their capacity to govern and deliver services effectively. Although some form of capacity needs assessment was done, the conceptualization of this activity was poor, as it did not focus on other areas of capacity such as human resource needs, skills, training, and remuneration. Most of the capacity needs assessment involved the staff and assets audit, which are yet to be completed, including, infrastructure, capacity assessment and capacity development, management of TA interim staff, and legal capacity building for transition. 3.3. Consultations on the Implementation of the System of Devolved Government The Commission held a number of consultations with regard to the implentation of system of devolved government, as summarised below. (i) Meeting with the Ministry of Health on Effective Implementation of the Right to Health During the reporting period, CIC held a meeting with the Ministry of Health. Among the key issues discussed include: (a) Legislation: Development of a comprehensive policy and an overarching health law from which all other laws will be developed. (b) Ministry restructuring: Review of the Ministry’s administrative structure subject to the merger of the two former health ministries. The new structure must recognize the allocation of functions in the 4" schedule of the Constitution as well as the national and public service values and principles. (c) Unbundling of Health Functions: The health functions to be unbundled through the intergovernmental sector consultative forum. (d) Health Care Financing: The Ministry in collaboration with CIC should sensitize county governments on national and county budget processes. (e) Human Resource: The Ministry is to commission a comprehensive analysis of human resource levels in counties to identify competency and skills gaps as well as develop standards for regulation of the health sector. (f) Intergovernmental Agreements: There is need to establish a mechanism for monitoring implementation of commitments made at the Health Sector Intergovernmental Consultative Forums. (ii) Meetings on the secondment of staff to County Governments over the Transition Period During the month of November and December, CIC facilitated a series of meetings with Directorate of Public Service, National Treasury, Salaries and Remuneration Commission, Transition Authority, Office of the Attorney General, Kenya Law Reform Commission, Public Service Commission, and Pensions Department. The meetings sought to address emerging issues relating to seconded officers to County Governments during the transition period. Some of the issues, which need immediate intervention included; (a) (b) (c) (d) (e) () (g) (h) Different month of job security of public officers on secondment; payment of salaries, remuneration, allowances and other benefits; redeployment to the National Government after secondment; disciplinary control of seconded staff; pensions; competency and skills audits; appointments and recruitment by the County Public Service Board and the absorption of staff to the county governments. committees were formed to address the various emerging issues. It was agreed that a follow up meeting should be convened in the January 2014 to review the possible solutions. Other recommendations were that a Public Service Bill should be drafted by end of January 2014, and that regulations should also be developed to address the issues aforementioned during the interim period. (iii) Meeting with the Transition Authority on the management of county pension schemes The Transition Authority convened a meeting on 6'"December, 2013 to address the management of the county pension schemes. The Pensions Department informed the meeting of the various options that the County Governments could opt for, and various presentations were made on the existing pension schemes and their shortcomings. A technical team, chaired by the Retirement Benefits Authority (RBA), was formed to review the options and make a recommendation in the next meeting. Given the urgency of the matter, a pension scheme should be agreed upon by January 2014 to ensure seamless transfer of pension. (iv) Meeting on Transfer of Health Functions The Commission met the President to discuss health functions that have been transferred to the county government. In the meeting, CIC highlighted various concerns as identified by governors, which centred on the following staffing issues: (a) (b) (c) (d) Inconsistences between staffing data — not all staff reportedly seconded by the National Government could be accounted for at the county governments level. Challenges in the County Governments refunding salaries for seconded staff paid by national government due to inconsistencies in staffing data and existing deficits in funding levels. Performance management of seconded staff - seconded staff continue to report to the National Government instead of the County Government as would be expected which complicates among other issues, ability to institute disciplinary measures where required. Arbitrary transfer of seconded staff by the National Government without consultation with the County Public Service Boards as required by Section 73 (4) and (5) of the County Government Act. CIC observed the need to review the Ministry of Health Performance Contract to align with Schedule 4 of the Constitution. Key among them are: (a) (b) Prevention of Alcohol and Drug Abuse: The Ministry proposes to undertake activities aimed at reducing the prevalence of Alcohol and Drug Abuse. These are: (i) Conduct sensitization on alcohol and substance abuse. (ii) Finalize, launch & disseminate the Ministry’s alcohol and drug abuse policy. Reduction of maternal mortality rate: Though maternal healthcare falls under promotion of primary healthcare and is a function of the County Government, the Ministry proposed to reduce maternal mortality through implementation of free maternity services in counties. The Ministry commits to provide: (i) Quarterly disbursement of funds to pay for all deliveries in public facilities. (ii) Policy framework for implementing free maternal care programme. (iii) Capacity Building. (iv) Procurement of Basic Emergency Obstetric Care equipment. (v) Monitoring the implementation of the free maternity services. (v) Consultative Meeting with Mombasa County Assembly Members The Commission held a consultative meeting with members from the Justice and Legal Affairs committee of the county assembly of Mombasa. The meeting discussed the work of the Commission in relation to the implementation of the system of devolved government and deliberated on contentious issues, including: () (2) (3) Transfer of functions without resources: The MCAs sought clarification on the transfer of functions without adequate resources. CIC had raised concern on the transfer process, which did not meet the threshold of the Constitution. The political agreement to fast track the transfer process had compromised the undertaking of key precursors to the transfer, i.e., unbundling of functions and the subsequent costing. The current costing was based on historical costing. To ensure that this does not reoccur in the next financial year, CIC has actively participated in the intergovernmental committees, which represent both the county and national government. Evaluation by SRC: In view of the standoff with SRC, the team sought clarity on the proposed evaluation. It was brought to the attention of MCAs that under Article 230 of the Constitution, they are state officers, meaning SRC has the mandate to regularly review their benefits and remuneration. It was however noted that when SRC was carrying out the review exercise, before the March 4" elections, County Assemblies were not in place to participate in the process. Following the operationalization of the county assemblies, the MCAs could now engage with the SRC as appropriate so as to seek review of their terms. Ministry of Devolution and Planning and Inter-Dependence of County Governments: The MCAs raised concern on the existence of the Ministry of Devolution and Planning, and the likelihood of interference with county governments. Based on the functions of the Ministry indicated in the presidential circular, the Commission informed the meeting that in its view, the Ministry does not interfere 22nd August, 2014 THE KENYA GAZETTE 2193 with the functioning of the county governments. The two governments have distinct roles, are interdependent and hence work on mutual understanding. (4) Minority Leader in the County Assembly: A clarification was sought on a minority leader in a case where all MCAs are from one political party. Given the experience in Mombasa, it was proposed that statute be amended to refer to ‘where it is applicable and not across board.’ During the interim period, CIC proposed that the Assembly’s Standing Orders be adjusted to address this issue. (5) Constitutionality of the MPs Administering the CDF: The Commission clarified its position on the unconstitutionality of the CDF Act. The roles of legislators are law making, oversight and approvals. MPs should not administer CDF funds. By doing so, they would be playing a conflicting role by implementing and overseeing the process. It also means that the MCAs cannot be mandated to take charge of bursary fund, as their roles are legislation and oversight. (6) Absentee Landlords (in Mombasa): the MCAs were advised to organize a structured meeting with the National Land Commission and make proposals to tackle historical land injustices. (7) Harbors and Ferries: The Commission clarified that this is a concurrent function as per the 4" schedule to the Constitution. Function analysis is ongoing and these issues will require discussions at the intergovernmental level. It is important for the county assembly to hold the county executive accountable on their input in the decisions arrived. (8) Referendum to Increase the Minimum Allocation: In CIC’s view, an alternative solutions other than resorting to a referendum should be sought. The Commission further indicated that given the implementation of the Constitution was still in its formative stages, it was premature to seek a referendum. 3.4. Stakeholder Forum on County Model Law on Public Participation During the reporting period, the Commission participated in the development of a proposed county model law on public participation. The Kenya Law Reform Commission organized a two days forum for stakeholders to review the draft model law. The proposed model law is intended to guide the County Governments in the preparation of relevant legislation on public participation and ensure alignment with the constitution. 3.5. Engagements with the County Governments During the reporting period, the Commission visited Nyeri and Kericho Counties with an overall objective of discussing implementation of system of devolved government. (1) Meeting with the Nyeri County Executive and the County Assembly The Commission visited Nyeri County on 7th November 2013 and held a meeting with the Deputy Governor, County Executive and County Speaker. The objective of the visit was to create a platform for collaboration for the effective implementation of the Constitution and the system of devolved government. Specific objectives of the visit were to: (a) Establish and build relationships; (b) Gain a common understanding of the roles and responsibility of the different institutions in the county government; (c) Review the implementation status of transition to the system of devolved government; (d) Identify potential challenges and risks in implementing the system of devolved government; (e) Understand CIC’s monitoring and reporting tool on devolution. During the discussion, it was noted that the two arms of the County Government, were not familiar with the recommended reporting mechanism and required support to track activities and address challenges in the establishment of the system of devolved government. (2) Visit to Kericho County Government The Commission held a meeting with the Kericho County Executive to discuss how the county government and CIC could work together in monitoring the Constitution implementation process. A number of issues, including the then strike by the health workers, were discussed and the following recommendations were made: (a) there should be an audit of the health services by an independent body, e.g., the Ethics and Anticorruption Commission (EACC) to resolve the issue of the ghost workers in the health sector. (b) each county should carry out an audit of its employees (in health sector) to identify ghost workers. (c) county governments should inform the public the improvements that have been made in service delivery in all sectors since the transfer of the functions to County Governments, taking one sector at a time. In a meeting with members of the County Executive Committee, County Chief Officers and County Public Service Board, various issues requiring clarification were raised. They include; human resource as relates to employment status, reporting lines, roles of officers and affirmative action measures in employment and devolution. Other areas discussed were: (a) County public service board relating to establishment and role of CPSB. (b) Relationship between CA and County Executive. (c) process of removal of elected officials from office. (d) Transfer of functions and resources. (e) The commission clarified issues raised. (3) Monitoring of Siaya County Gubernatorial By-election The March 4th 2013 election results for the gubernatorial seat were nullified by the high court citing electoral discrepancies in the polling process. Subsequently, the by-elections were held on 17th October 2013. CIC participated in monitoring the by-election, visited 8 of polling stations and made the following observations: ° The polling stations were Humwend, Ukwala,primary school, Ranga’la primary school, Lifunga primary school, in Ugenya constituency; Oseno Komolo primary school and Siaya county Assembly Hall in Siaya constituency; Bondo sub-county offices in Bondo constituency and Ndori dispensary in Rarieda constituencty (a) The election campaigns were peaceful throughout the entire period providing for a conducive environment for voting. (b) Assistance was given to people with special needs and disabilities in all the polling stations visited to ensure they all voted. The special people included pregnant women, elderly persons, the blind and deaf. (c) There was clear indication of voter education on the process of voting. There were many IEBC posters at the polling centers illustrating to voters on how to vote. At the end, this helped in in reducing spoilt votes. (d) Security was provided for in all polling stations. There was no evidence of any violence in the entire county. There were enough security officers during the by- election. (e) The process was smoothly conducted with very minimal challenges. For example, the Electronic Verification Identification Device (EVID) machines could not fully identify a voter. In some instances it showed the identification details but missed out on the image or vice verse. Consultations between the county returning officer and IEBC officials allowed the presiding officers to manually identify affected voters. (f) | There was no any noted intimidation, coercion or violence. (g) The observers and the media were accorded freedom and sensitized on how to conduct themselves during the by-election processes. (h) Given by-election experience, the voter turnout was above average and stood at 55% with majority of the voters’ listed as women. (i) All the procedures and processes laid in the law were followed strictly especially in the opening and closing times, polling and counting procedures and sealing of the ballot boxes. IEBC demonstrated a high level of readiness in conducting the Siaya by- election. Logistics were put in place and adequate preparations were made to ensure smooth elections. PART FOUR PROMOTING CONSTITUTIONALISM AND PROTECTING THE SOVEREIGNTY OF THE PEOPLE The Principle of public participation enshrined in Article 10 of the Constitution is one of the principles that CIC applies when interpreting or applying the Constitution. The Commission endeavours to keep the people of Kenya informed on the status of implementation of the Constitution and other matters that touch on constitutionalism. Information sharing and consultation with the people entails various methodologies including stakeholder engagements, media briefings and statements through electronic and print media. In particular, the Commission issued public advisories and media statements on matters of national interest. The Commission also ensures that the rule of law prevails by seeking judicial interpretation of acts or omissions considered contrary to the Constitution. This part discusses public advisories, stakeholder engagements and litigation undertaken by CIC in the interest of the public. 4.1 Advisories and Media Statements During the reporting period, CIC issued the following advisories and media statements. Details are contained in annex 1 (a) Statement on Affront to Devolution by the Senate: The Commission issued this statement following publication of the County Governments (Amendment) (No.2) Bill on 16" August 2013 with proposals to amend the County Governments Act, 2012 by inserting a new section to provide for the establishment of County Development Boards in each county. The Commission noted that if passed, the Bill would violate the letter and spirit of the Constitution because it violates the principle of separation of power between legislative and executive arms of government. (b) Statement on the Kenya Information and Communications (Amendments) Bill, 2013: This Bill was published and passed by the National Assembly for enactment. Noting that the Bill contained some unconstitutional provisions, CIC issued an advisory on the provisions that were unconstitutional and proposed that the President refer the Bill to Parliament for amendment. The President referred the Bill to Parliament proposing various proposals for amendment, which were adopted by the National Assembly. National Assembly thereafter passed the Bill. (c) Statement on Refusal to the President Memorandum on the Kenya Information and Communications (Amendment) Bill, 2013: CIC also issued a statement on the refusal by the President to assent to the KICA, Bill, 2013. The Commission noted that the Memorandum by the President addresses to the unconstitutional provisions in the Bill and advised that Article 34(5) of the Constitution requires Parliament to enact a legislation that provides for the establishment of a body, which shall be independent of control by government, political interests or commercial interests. It was therefore important to the proposals by the president to ensure that the proposed media regulatory body reflects the interests of all sections of the society, sets media standards and regulates and monitors compliance with those standards. In fact, the position by some media houses wanting to be the only interests involved in regulating the media is unconstitutional given that Article 34(5) is very clear on the independence of any regulating organ from “commercial interests” and reflecting “all sections of society”. (d) Statement on the Adjournment/Suspension of Sittings of County Assemblies: Following various statements in the press that members of county assemblies across the country had refused, failed and or neglected to hold sittings as a strategy of negotiating for improved terms and conditions of serve, the Commission issued a statement urging them to resume their duties. In the statement, CIC noted that the purported strike/go slow by state officers could lead to failure by county governments to discharge their mandate and trigger takeover of county government functions by the national government. CIC therefore urged MCAs to resume their duties and pursue matters of welfare and remuneration through channels that do not seek to undermine the Constitution. (e) Statement on the Threat to Arrest Journalists Over the Westgate Attack: The alleged threat to arrest journalists for exercising their rights under Article 33 of the Constitution appears to be an exercise of authority that runs counter productive to the purposes of Article 34(2)(b), which prohibits the State from penalizing any person for any opinion or view or the content of any broadcast, publication or dissemination. The Commission noted the need to follow the dictates of the Constitution and the law that regulates broadcast when addressing alleged violation of the right to freedom of expression by the media. (f) Clarification on County Boundaries: The Constitution does not specifically address the question of boundaries of counties. The determination of ward boundaries by IEBC under article 89 and the subsequent court ruling on this determination did not provide useful guidance on how to resolve the issue. Following the dispute between Makueni and Machakos counties on their boundaries, the Commission wrote to IEBC to seek clarification. This would be reference point to counties that may have similar. 4.2 Stakeholder Engagements In addition to consultations in the course of reviewing and developing policies, legislation or regulations, the Commission engages stakeholders on various constitutional aspects. The following section is a brief overview of stakeholder engagements undertaken by the Commission during the reporting period. 22nd August, 2014 THE KENYA GAZETTE 2195 (1) Meeting with Ministry of Information, Communication and Technology The Commission engaged with the Ministry of Information, Communication and Technology and other stakeholders on the Media Council of Kenya Bill, 2013 and the Kenya Information and Communication (Amendment) Bill, 2013. The Bills have since been enacted into law. (2) Stakeholder Forum on Development of Legislation for Alternative and Traditional Dispute Resolution Mechanisms. Article 159 (2) of the Constitution mandates the Judiciary to, in the exercise of its judicial authority, inter alia “promote traditional dispute resolution mechanism in Kenya.” The Commission participated in a meeting organized by the Judiciary on the promotion of traditional/informal dispute resolution mechanisms and the role of the council of elders in promoting access to justice. The objective of the meeting which drew participants from members of the Judiciary and relevant stakeholders in the justice sector, was to explore the viability, challenges and possibilities of interfacing, establishing and operationalization of an indigenous alternative dispute resolution systems to enhance the realization of Article 48 of the Constitution on Access to Justice. The Commission will engage further with the Judiciary on the development of a policy and legislation on traditional dispute resolution mechanisms. (3) Meeting of Court User Committees The National Council on Administration of Justice, of which CIC is a co-opted member, hosted a conference of the Court User Committees (CUC) in Nairobi. The Conference was an opportunity for the various Court User Committees to share experiences, benchmark against each other as well as gain insight on how to effectively monitor and evaluate their activities. Participants at the meeting were in agreement that the establishment and effective operationalization of the CUCs is critical to the realization of the right to access to justice. Some of the identified challenges facing CUCs include lack of standard operations, turf controls, silo approaches by individual stakeholders, lack of finances, lack of proper records as well as apathy and non commitment by stakeholders, among others. As a way forward, it was agreed that there was need for better co-ordination among the CUCs, entrenchment of professionalism in their management and increased public participation in their activities, through public forums, establishment of hotlines etc. The Commission will engage more with CUCs to support them address these challenges and in facilitating access to justice at County level. (4) National Conference for Children with Disabilities The National Conference for Children with Disability organized by VSO Jitolee, in collaboration with the Disability Caucus on the Implementation of the Constitution and other sector players brought together children with disability, Government ministries, policy makers, CSOs and key sector players. The meeting focused on the intersection between the education for all policy, and the disability rights as provided in the Constitution and other existing National and International frameworks. The conference provided an opportunity for a clear understanding of the opportunities, challenges and impediments likely to be faced in the education sector, following the inclusion of the rights for persons/learners with disability in the reviewed Basic Education Act, 2013. The meeting proposed inclusion as a way forward. The identified gaps and emerging opportunities from the workshop will form a basis for further engagement between the various players in the sectors. (5) Stakeholder Meeting on Prioritization and Audit of Legislation for Conformity with the Constitution The Commission participated in a meeting convened by the Kenya Law Reform Commission on the audit and prioritization of existing legislation for conformity with the Constitution. A consultant presented a draft report draft report and views sought from the participants. The meeting recommended that, in addition to the legislation identified for prioritization under the Fifth Schedule to the Constitution, the report should also identify legislation, policies and administrative documents from MDAs that may require amendment in order to conform with the Constitution. Participants at the meeting were requested to send this information to the KLRC. A final copy of the report will be shared once complete. (6) Meeting with the Catholic Justice and Peace Commission (CJPC) The Commission held a meeting with the Catholic Justice and Peace Commission (CJPC) on 11th December, 2013 to discuss working modalities with CIC as well as the role of the church in monitoring implementation of the Constitution, which was include: (a) raising awareness and civic education on the Constitution; (b) reviewing of legislation and policy on advocacy; (c) issuance of guidelines on morality and ethics; and (d) involvement in peace education and current affairs. The meeting recommended that: (a) CIC should ensure that all key institutions like the church are involved in the implementation process. Religious organizations should be recognized as key stakeholders in the sustainable implementation of the Constitution. (b) Civic education on the Constitution led by CJPC, NCCK and SUPKEM should be the key agenda for Kenyans for the next five years. Among other things, there is need to continuously educate the people of Kenya on the right to petition Parliament under Article 119 of the Constitution and the right to recall their leaders under Article 104 of the Constitution. (c) There is need to re-think the minimum educational and other requirements provided under Articles 99 and 193 of the Constitution. (7) Meeting with the International Republican Institute (IRI The Commission held a meeting with IRI to discuss areas of collaboration in the Constitutional implementation process. It was agreed that IRI would work with CIC on matters relating to women and youth, county assemblies and in facilitating the printing of various publications. CIC agreed to review materials that IRI would develop, in future to ensure that the content relayed the correct constitutional and legal information. (8) Training of Judges on Socio-Economic Rights The Commission was invited to a forum organized by the Judicial Training Institute, an organ of the judiciary responsible for capacity development and training of the judiciary staff. The purpose of the forum was among others, to develop common understanding among judges from the East African region on the concept of Socio-Economic Rights, its contours and outer limits and effectively respond to its philosophical and pragmatic objections as human rights as well as to determine the precise sources of laws for socio-Economic Rights in respective jurisdictions. CIC presented on the right based approach to development and the case for social economic rights during the forum, where emphasis was drawn on the need to ensure that socio-economic rights under Article 43 of the Kenya Constitution 2010 are progressively realized as provided. (9) Meeting with Ministry of Devolution and Planning on the Development of National Framework for Management of Donor Funds CIC participated in the formulation of a national framework for the management of donor funds at both levels of government. This arose from the desire to synergize and have a common understanding on the utilization and application of donor funds from both a budget and development needs perspective. The Ministry of Devolution organized several meetings with attendance drawn from the county governments, constitutional commissions and the donor fraternity for purposes of sharing perspectives into how best to structure and realize the full utilization and benefit of donor funding. (10) University of Nairobi Launch of Project on Knowledge and Implementation of the Constitution CIC participated in the launch by the University of Nairobi of a project on knowledge and implementation of the Constitution. The project aims to assist the university to implement the Constitution and as well as act as an ambassador to the process of implementation. This in itself has helped in the process of providing civic education and enhanced public participation. (11) Meeting with Tanzania Parliamentary Committee CIC hosted a delegation from the Tanzania on a study tour to Kenya to learn the successes and challenges of constitution reform. (12) Meeting with the Constitutional Implementation Oversight Committee of Parliament Section 4 of the Sixth Schedule to the Constitution mandates CIOC to receive regular reports from CIC on the implementation of the Constitution, the legislation process, the process of establishing the commissions, infrastructure to implement devolution, challenges and impediments in the course of implementing the Constitution. CIOC invited CIC for a meeting to discuss the CIC quarterly reports for the period January to June, 2013. In addition to discussing CIC reports, Hon. Njoroge Baiya, the chairperson of the committee indicated that the purpose of the meeting was for the two institutions to create a mechanism for proactive engagement in overseeing the implementation of the Constitution. The meeting discussed the following: ° Status of development of legislation. The meeting agreed on the following actions as a way forward on the review and development of laws. - CIC, CIOC, AG, Senate and National Assembly to agree on an inclusive procedure of developing legislation. - CIC to share with the National Assembly the comments earlier given to the Senate . - CIC to re-look at the list of laws requiring amendments and forward to CIOC. - CIOC to spearhead the amendments of laws identified for review in Parliament. - CIOC to facilitate stakeholders meeting (with CIC, CIOC, AG, Senate and the relevant committees of National Assembly) to have a common understanding of legislation to be developed, timelines, and the process of development. - CIC and CIOC to develop a common understanding of the laws for review before meeting in the stakeholders meeting is convened. ° Development of Regulations: The apparent laxity in developing regulations to implement Acts of Parliament was noted. The example being the regulations required under the National Government Coordination Act and the National Security Council. It was agreed that the different sectors required develop regulations should be identified and tasked to develop regulations. ° Progress Reports: CIC is constitutionally required to report to CIOC on the progress of implementation of the Constitution, challenges and impediments. The Commission has conformed to this requirement since its establishment. Reports are channelled through the Office of the Clerk of the National Assembly. While it was in line with protocol to send correspondences through the Clerk, it was agreed that additional reports should be submitted to the CIOC chairperson and a presentation made at a joint meeting between CIC and CIOC to address critical implementation issues. The meetings will be convened by CIOC once quarterly reports are submitted by CIC. ° Devolution: CIC presented a brief update on progress of devolution and implementation of the system of devolved government, including the transfer of functions and efforts by counties to establish structures. By June 2013, many county governments had established institutions such as executive committees and County Public Service Boards. However, none had established decentralized units, such as cities, urban areas, wards and villages. The following were noted as areas of concern derailing the system of devolved governance. - The delay in reclassification affects the appointment of village administrators and managers of those institutions; - An analysis of functions to facilitate transfer of functions had not been done by June, 2013; - The National Government had not developed the capacities at county level as required in the transition to Devolved Government Act; - There was need for civic education and sensitization at the national and county levels for those responsible for implementing devolution to understand what it is; and - There is no formal secretariat to support the Governors Council. It was agreed that CIOC will spearhead the facilitation of the establishment of institutions envisaged in the Intergovernmental Relations Act, 2012. ° Establishing Constitution Commissions. CIC gave the following highlights on the status of establishment of constitutional commissions. - Most of the commissions have been set up and running save for the Teacher Service Commission and Kenya Human Rights Commission. The TSC had its nominees rejected and the Court stopped the Kenya Human Rights Commission recruitment process. - Commissions had indicated underfunding as a challenge, which had resulted in cutting down of activities to mere minimum. CIOC was requested to support adequate financial support for commissions. (13) University of Nairobi Rapid Result Initiative and Tree Planting Day CIC partnered with the UON and EACC in an RRI initiative to sensitize the university leadership, staff, faculty and students on the Constitution of Kenya. As part of the RRI programme, the chairperson participated in sensitization activities and at a tree-planting event. Addressing participants of the tree-planting event, the chairperson noted that Article 69(b) of the Constitution calls for the achievement of a tree cover of at least 10 per cent. 22nd August, 2014 THE KENYA GAZETTE 2197 He called upon all to plant trees and ensure that there is increased tree cover in Kenya as a prerequisite to our right to a clean environment, right to water and right to dignified life. 4.2 Litigation In exercise of its mandate and to promote constitutionalism, CIC seeks the court’s guidance through legal proceedings in cases of real or perceived misinterpretation or misapplication of the Constitution. During the October — December period, CIC was involved in the following cases; (i) High Court Petition No. 71 of 2013: The Institute for Social Accountability (TISA) vs. The Hon Attorney General & Others was filed on 6th February 2013 with CIC being enjoined as an Interested Party. The Petitioner is challenging the proposed disbursement of the Constituency Development Fund (CDF) to outgoing Members of Parliament to enable them complete various projects before the next general elections. The Petitioner however had to amend its Petition after the President assented to the CDF (Amendment) Act, 2013 on 13th September, 2013. Parties to the suit were asked to respond to the amended Petition if need be, and the matter scheduled for hearing on 23rd January 2014. (ii) High Court Civil Appeal No. 280 of 2013: Bishop Donald Kisaka Mwawasi vs. The Hon Attorney General & 2 others, filed on 14th October, 2013 with CIC as the 3rd Respondent. This is an appeal against the Judgment and Decree of the Hon. David Majanja on 28th January, 2013 that a person who holds dual citizenship is disqualified under the Constitution to contest elective office The Appellant was dissatisfied with the same and lodged an appeal scheduled for hearing on 22nd January 2014. (iii) Supreme Court Ref No. 2 of 2013 (Advisory Opinion): The Speaker of the Senate and the Attorney General and Others, filed on 13th June 2013 with CIC as 2nd Amicus Curiae. The Senate sought an Advisory Opinion whether the National Assembly faulted in amending the Division of Revenue Bill, 2013 before submitting it for assent. The Court delivered its advisory opinion on 1st November, 2013 where six Judges were of the concurrent opinion that the Division of Revenue Bill, 2013 touched on the County Governments thus required the Senate’s contribution and that the Speaker of the National Assembly was wrong to disregard the Senate’s input. The court advised that the dispute resolution mechanisms ought to be invoked to settle the disagreement, but did not declare the legislative process unconstitutional. (iv) High Court Petition No. 496 of 2013: CIC vs. The National Assembly of Kenya & 2 others, filed on 11th October, 2013 The Petitioner challenged the proposed Constitution of Kenya (Amendment) Bill, 2013 which sought to amend the definition of State Offices in Article 260 of the Constitution. Judgment was delivered on 18th December 2013. The court dismissed the Petition after finding that it was premature, but ordered that the Petitioner was at liberty to apply later in the legislative process should it find it necessary. (v) High Court Petition No. 560 of 2013: Kenya Tea Development Agency Holdings Ltd vs. CIC & the Attorney General, filed on 26th November 2013 with CIC as the 1st Respondent. The Petitioner is challenging the eligibility of state officers and/or public officers holding directorship positions in its board and its shareholding companies. The Petitioner deems this as a violation of Article 77 (1) of the Constitution of Kenya on restriction of such officers from participating in any other gainful employment. The Matter is scheduled for mention on 29th January 2014. PART FIVE CHALLENGES AND POTENTIAL IMPEDIMENTS TO THE IMPLEMENTATION OF THE CONSTITUTION This chapter covers, in summary, the overall challenges, potential impediments and recommendations to constitutional implementation. Most of these challenges have appeared in previous reports and have remained persistent in the implementation of the Constitution. 5.1 Delays in completion of relevant policies Part two of this report details a list of polices under review/development. However, it has taken the national executive too long to complete some of the policies. Annex 3 contains a list of policies reported in various quarter reports of 2011, 2012 and 2013. Most of them remain uncompleted, yet relevant policies are required to anchor the legislation. Recommendation: CIOC, CIC and AG need to appeal to ministries to finalize critical policies, most of which have remained uncompleted (see annex 3). 5.2 Undue delays in development of regulations. There has equally been a delay in the development of implementing regulations under enacted laws generally but in particular, under National Security Council Act, 2012, National Government Coordination Act, 2013, and Power of Mercy Act, 2011. This has been coupled with lack of cooperation, for example, from Ministry of Defense when requested for information. Recommendations: CIOC, CIC and AG need to urgently meet, discuss and resolve these delays. The national executive should put more efforts to complete the policies and regulations. The AG office should expedite the completion and tabling in parliament the outstanding legislation. 5.3 Legislation passed by the Parliament before review by CIC Annex 2 to this report has listed the following Bills and Acts of Parliament. (a) Bills reviewed by CIC and released for publication and tabling in Parliament. (b) Bills under review at CIC. (c) Published Bills under Review by Parliament. (d) Bills under review by County Assemblies. (e) List of Legislation Enacted after Review by CIC (Pursuant to Art. 261). (f) Cumulative List of Laws Enacted after the Promulgation of the Constitution (National Assembly, Senate and County Assemblies) Category c) contains Bills by Senate and National Assembly. Among them are those that have not passed through CIC as required by Article 261 of the Constitution, that the Attorney General should, in consultation with CIC, prepare Bills for tabling in Parliament. Recommendation: This violation of the Constitution has persisted for long. All State Organs involved in the development of Legislation should adhere to the process laid out in the Constitution for enactment of legislation. 5.4 Operationalization of constitutional commissions Although the Kenya National Commission for Human Rights, National Gender and Equality Commission and Teachers Service Commission have been established and perform their functions, failure to complete the appointment of commissioners derail these commissions from performing their functions effectively and therefore affecting their service delivery. Recommendation: All constitutional commissions should be operational. 5.5 Challenges on devolution: Since devolution took effect after March 4" 2013 elections, it has faced a number of challenges, including; (i) Lack of common understanding of roles between the County Assemblies and the County Executives, the Senate and Governors, Senate and the National Assembly, resulting in squabbles and derailing implementation of devolution. (ii) Unfinished functional analysis has seen functions transferred without accompanied resources/budgets. (iii) Most of the institutional structures, e.g., villages, cities and urban centres, identified in devolution related laws to be established to facilitate implementation of assigned functions have not been established at the county levels, thus affecting service delivery. (iv) Lack of change management strategies. The Constitution requires a fundamental change in the way to serve the public. Article 232 defines the values and principles of public service whose application will require change management strategies, which most of the institutions have not developed. National and County Governments have so far not been able to manage change effectively towards the effective transition to the system of devolved government. Recommendation: The National Government should draw and implement a clear capacity building programme on constitution implementation in general and devolution in particular. 5.6 Delay in capacity building for implementers, especially county government. The field visit finding that most MCAs, CECs and county government staff do not have copies of the Constitution and relevant devolution related laws. This has made it difficult for implementers to move on the different activity expected of them Recommendation: (1) All county governments should have copies of the following documents for reference; The Constitution of Kenya, 2010. The Elections Act 2011. The Transition to Devolved Government Act, 2012. The Urban Areas and Cities Act 2011. The County Government Act, 2012. The Public Finance Act, 2012. The County Governments Act, 2012. Intergovernmental Relations Act, 2012. The National Government Coordination Act, 2013. OC PADMARWN DS Recommendation: (2) The national government, specifically the Ministry of Devolution and Planning should develop and implement the capacity building programme on devolution. 5.7 Limited capacity in the counties to develop county policies and legislation. The lack of and delays in developing county policies and legislation has been attributed to lack of drafters. Recommendation: The AG office should provide technical support to counties on drafting their legislation. 5.8 Inadequate legal framework to guide secondment of staff to County Governments. This has led to dissenting voices by transition teams posted to counties by TA as well as county governments wanting to employ their own staff. Recommendation: The national government, county governments and Public Service Commission should develop a legal framework to address staffing issues such as job security, salaries, remuneration, allowances and other benefits, redeployment, disciplinary, pensions, etc. 5.9 Failure of the National Government to respect the County Governments and other independent institutions. Two key examples include: (i) Usurping of functions of the County Government by the National Government through the Performance Contracts. (ii) | Review of the Ministry of Health’s administrative structure following the merger of the two former ministries of health, without involving the Public Service Commission. 5.10 Lack of County Transition Implementation Plans The guidelines for counties to prepare Transition Implementation Plans (TIPs) was one of Phase I activities TA was supposed to undertake. Despite the fact that TA issued draft guidelines through Ministries and Counties no transition plan has been received. For CIC to monitor implementation and transition activities TIPs are very critical. Recommendation: Ministries and counties should submit TIPs to CIC as required in Section 16(2) — (3) of Transition to Devolved Government Act, 5.11 Limited cooperation from government institutions implementing the Constitution This is indicated by lack of response to various requests and non-submission of reports, which undermines constitution implementation. For example, ° Request made to IEBC on the boundaries has not been responded to. ° Some County Assemblies have not responded positively to the request for quarterly reports. ° During the reporting period, the Commission sought for a consultative meeting with the Ministry of Devolution and Planning. The ministry did not respond to the request. ° Failure by County executives to submit reports to county Assembly regularly as required affects the oversight role of the county assemblies. ° Lack of cooperation from Ministry of Defense when requested for information Recommendation: CIC recommends the need for all institutions to respect the Constitution for its effective implementation. 22nd August, 2014 THE KENYA GAZETTE 2199 PART SIX ACTIVITIES FOR THE NEXT QUARTER (OCTOBER-DECEMBER 2013) 6.1 Legislation Review and Development (a) Review of the Community Land Bill. (b) Review of the Resettlement Bill, 2013. (c) Review of the Physical Planning Bill. (d) Review of the Legal Aid Bill, 2013. (e) Review the Work Injury Compensation Bill. 6.2 Review of Policies, Regulations and Administrative Procedures (f) Review of the Policy and legal framework on Access to Justice. (g) Finalize the review of the draft regulations under Leadership and Integrity Act 2012. (h) Finalize the review of the draft regulations under the County Governments Act, 2012. (i) | Engage with the Directorate of Public Service Management in the Ministry of Devolution and Planning on strengthening the FY2014-15 PC guidelines to better capture implementation of the Constitution. (j) | Engage with the different stakeholders on various laws, policies and administrative procedures. (k) Engage with the Ethics and Anti-Corruption Commission on the development of the regulations under the Leadership and Integrity Act, 2012. (1) Engagement with the office of the Attorney General on the finalization of the concept paper on the development of the public participation policy (m) Stakeholder consultations on the Health Bill and the Health Policy 6.3 Engagement with County Governments, Ministries and other Stakeholders (n) Consultative meetings and engagement with County Governments. (o) Field visits to Court User Committees. (p) Capacity building workshops with teachers in Bungoma County. (q) Launching of handbook for members of County Assemblies in Bungoma County. (1) Training the counties on county assembly roles and responsibilities. (s) Meetings with the Cabinet Secretaries for Education and Industrialization and Enterprise development. (t) Courtesy calls and meetings with Migori, Turkana, Kakamega, Marsabit, and Kilifi county governments. (u) County Visit to Bungoma to engage with Health teams and visit health facilities. (v) Engagement with ministries. ANNEXES Annex 1: Advisories and Press Statements 1. The Kenya Information and Communications (Amendments) Bill, 2013 The ongoing debate on the Kenya Information and Communication (amendment) Bill, 2013, which the President has returned to the National Assembly of Kenya and the President’s recommendations on the Bill raises critical constitutional questions that demand sobriety and should not be the subject of alarm mongering. When the Bill was passed by Parliament, CIC raised its objections to the Bill as it contained unconstitutional provisions. Some of the unconstitutional provisions included the recruitment process of the Board members of the Communications Authority of Kenya, a successor institution to the CCK. The appointment process in the Bill solely involved the National Executive and the National Assembly. The Bill further required vetting by the National Assembly before renewal of the term of office of the chairperson and members of the board of the Authority while also providing for the removal of the Chairperson and members of the Board of the Authority to be carried out by the National Assembly. This compromised. the Authority’s independence from government and political interests contrary to Article 34 of the Constitution. The President’s recommendations require the deletion of that process and provides for the non- involvement of the National Assembly in the appointment process. It proposes that the Board be appointed by an independent selection panel comprising representatives of government, media and other stakeholders. The President’s memorandum also proposes that the members of the Board be removed only for cause and by an independent tribunal thus ensuring security of tenure of the members. These proposals are consistent with the spirit of Article 34 the constitution and should be supported by those who desire to respect the constitution. The Bill in clause 17 also sets out the minimum local content for all “distributors” of radio and television programs. Such prescriptive provisions which then attract penal consequences run counter to the provisions of Art 34(2) of the Constitution which disallows penalties for “the content of any broadcast publication or dissemination”. The President’s memorandum deletes this provision and proposes that issues of local content be resolved through the licensing procedures as is currently occurring. In clause 37 of the Bill there is established a selection panel for selecting suitable candidates for appointment as members of the Communications and Multimedia Appeals Tribunal. The Selection Panel consisted largely of government stakeholders and who in any event were all representatives of the industry sought to be regulated contrary to Article 34(3) of the Constitution that requires independence from “government and commercial interests”. The Presidents proposal widens the membership of the selection panel to include representatives of the media and other stakeholders within the spirit of Article 34. The same clause also provided for removal of members of the Communications and Multimedia Appeals Tribunal through a selection panel comprising government and media industry stakeholders which left the process for removal of a member of the tribunal indeterminate, subject to government and commercial interests and would lead to conflict of interest since only government and media interests were represented in the panel. The President memo provides for the removal of the members through an independent tribunal thus securing the tenure of the members of this important organ. The Bill set out severe penal consequences that could be meted by the Tribunal including those relating to breach of code of conduct. The President’s memo removes breaches of the code of conduct from the severe penalties under the Act. With regard to the magnitude of the fines in this Clause, it is important to recognise that these fines, which in any event prescribe the maximum penalties, relate solely to substantive breaches of the Act and not misconduct issues. The impact of some of the breaches of the Act is heavily injurious to the industry and may require severe penalties. Considering that the process of determining the penalties will be by an independent body, the same cannot be said to be unreasonable. There is need to remind the all stakeholders and particularly the media that Article 34 (3) and (5) of the Constitution do not provide for self regulation by the media. The provisions require the independence of the body (or bodies) that is set up to license broadcasters, set media standards and regulate the media. Article 34(3)b states that Broadcasting and other electronic media have freedom of establishment, subject only to licensing procedures that are independent of control by government, political interests or commercial interests. Article 34(5) on the other hand requires Parliament to enact legislation that provides for the establishment of a body, which shall be independent of control by government, political interests or commercial interests. The Article requires that the body reflect the interests of all sections of the society. It is also the body that sets media standards and regulate and monitor compliance with those standards. In essence, the position by some in the media of wanting to be the only interests involved in regulating the media is unconstitutional given that Article 34(5) is very clear on the independence of any regulating organ from “commercial interests” and reflecting “all sections of society”. One recognises that there are genuine concerns about the media as to whether media regulations should be carried out by the Media Council or the Tribunal set up by the Bill. To the extent that the institution set up by the Bill is independent of government, this may be more an issue of form than substance. Media has also proposed the enactment of a Broadcast law that separates issues of licensing and signal distribution from other aspects of broadcasting. That is a discussion that the media and other stakeholders must continue to have so that the media sector is regulated in a manner that responds to our circumstances and is consistent with best practice everywhere. Even then, the regulatory framework would still need to respect and accord with our constitution. For now the issue at hand is to ensure that the Bill as presented meets the constitutional threshold even as we all seek a more effective regulatory framework. In conclusion, it is important that all Kenyans recognise that adherence to the Constitution applies not just to government but every Kenyan including the media. CHARLES NYACHAE, CIC Chairperson. 2. Senate’s Bill an Affront to Devolution The Senate, through the County Governments (Amendment)(No.2) Bill, 2013 published on 16" August 2013 proposes to amend the County Governments Act, 2012 by inserting a new section to provide for the establishment of County Development Boards in each county.These Boards, which are chaired by the Local Senator “approve” all development plans and budgets before they are presented to the County Assemblies. The Bill if passed, would violate the letter and spirit of the Constitution. The Bill also contradicts recently passed devolution legislation such as the County Government Act, the Intergovernmental Relations Act and the Public Finance Management (PFM) Act, 2012 which were passed after extensive public consultation. To our knowledge no public consultations have occurred in relation to this latest Bill despite its far-reaching implications. The principle role of any legislative assembly is that of enactment of legislation and oversight over public finances and state organs, while that of the Executive is implementation, coordination, management and administration of policies and legislation. The import of this is that the Parliament at the National level and County Assemblies at the County level have the oversight responsibility of scrutinizing and approving plans and budgets for the National government and County governments respectively, while the National Executive and County Executive have the responsibility of implementing projects in line with approved plans and budgetary allocations and reporting back to the legislative arms of the respective governments. In giving Senators and MPs coordination and implementation roles in the County Governments, the Bill mixes these two responsibilities and muddles the separation of powers so clearly stated as one of the principles of devolution. Secondly the National and County governments are distinct governments, and their roles and functions are clearly defined in the constitution. The County government comprises the County Executive and the County Assembly solely. The Constitution does not contemplate another superintendent body of a “national nature” that plans alongside the County government, and prefects the County governments, so as to ensure that the County governments are planning and budgeting well. Where the County Executive plans and budgets badly, only the County Assembly can provide oversight over the County Executive, the Senators and MPs role is to enact legislation at the National level and provide corporate oversight over the finances of the Counties. This role is given to Senate corporately and does not grant individual Senators specific oversight responsibility over the Counties that elected them. Indeed the exact boundaries of the corporate Senate oversight role needs to be defined urgently but whichever way it is defined, it must not usurp the oversight role of the County Assemblies. As for intergovernmental consultation, where the County government needs to consult the national government, the mechanisms of such consultation, which respect the institutional integrity of each level of government, are already provided for in the Intergovernmental Relations Act. For the Bill Senate to purport to create an extra supervisory organ outside of these two levels of government and which the local Senators, MPs and national government functionaries oversee individual Counties defeats this principle of distinctiveness. The Bill also fails to promote the institutional integrity of each level of government as required by the Constitution. In one of the provisions of the Bill, the Chief Executive of the County, the Governor, is made the Secretary of the Board, which clearly betrays the view that the mover of the Bill has on the status of the County’s Chief Executive. Would the Senate imagine a situation where at the National level the National Chief Executive’s role was to serve as Secretary of some forum? Recognising that the object of devolution is to enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them, the Public Finance Management (PFM) Act, 2012, and the County Government Act setup elaborate citizen centred forums to inform the planning and budget making processes at the County level. These Acts recognise that it is the County government that consults its citizens and therefore the role of constituting and overseeing these forums is granted to the County government. The Board proposed by the Bill would be a duplication of the functions of these already established forums and would in any event compromise the wider and more representative structures set out in the existing legislation. An unstated reality is that these Boards will also cost money in sitting allowances and costs incurred in the administration and possible employment of staff of the Board in each county. It is not even clear who would be responsible for such expenditure since the Boards comprise persons from the national and county governments. The Senate is given the responsibility of protecting the constitution, and specifically to protect the interest of Counties. The intent of the Constitution was not that the Senate usurp the constitutional responsibilities of any organ of the County government as this Bill seeks to do. I urge the Senate to protect the Constitution and County Governments by rejecting this Bill. CHARLES NYACHAE, CIC Chairperson. 22nd August, 2014 THE KENYA GAZETTE 2201 3. Press Statement on the Threat to Arrest Journalists Over the Westgate Terrorist Attack Coverage. The Commission for the Implementation of the Constitution (CIC) wishes to recognize the valiant efforts made by civilians and members of the disciplined services to rescue our brothers and sisters who were trapped in the Westgate Mall during the terrorist attack. These courageous individuals put their lives at risk to save the lives of men, women and children on that fateful day and their acts reflect the ethos of the preamble to our Constitution with respect to “our pride in our ethnic, cultural and religious diversity, and determination to live in peace and unity as one indivisible sovereign nation.” We salute you. CIC must however express its concern regarding the alleged threat to arrest journalists for their coverage of the Westgate terrorist attack. The Bill of Rights in Chapter 4 of the Constitution is an integral part of Kenya’s democratic state and the rights enshrined therein belong to each individual and are not a favour granted by the state, which can be arbitrarily taken away. Such rights can only be subject to limitations contemplated in the Constitution. The freedom of expression enshrined in article 33 of the Constitution provides for the right of every person including journalists, the freedom to seek, receive and impart information or ideas; freedom of artistic creativity and academic freedom and freedom of scientific research. This right is limited by the Constitution to the extent that it does not extend to propaganda for war, incitement to violence; hate speech; or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm; or is based on any ground of discrimination. Further, in the exercise of the right to freedom of expression, every person must respect the rights and reputations of others. These are the only constitutional limitations on the freedom of expression. The Constitution and the law vest the power to arrest in the Inspector General. However such exercise of authority must comply with the Constitution and not violate it. The power to arrest is exercised in cases relating to perpetration of crimes and not in civil matters unless a court has ordered arrest in a civil case. It is not clear whether, the alleged threat to arrest relates to a criminal offence or whether it relates to an allegation of harm to the reputation of a disciplined service. Matters relating to the reputation, good or ill of others is a civil matter that does not lend itself at the first instance to arrest by the police service. Communication to the public through electronic media is not a crime as it is clearly permitted by article 33 of COK unless it is proven to extend to the matters that are prohibited by the Constitution. Indeed Kenyans have come to depend on investigative journalism to learn about crucial matters affecting their social, economic and political environment. On a number of occasions, broadcasts have revealed commission of crimes by public officers including members of the police service e.g. taking of bribes by traffic police. Yet at no time has the inspector general threatened to arrest the journalists who share such information with the public. Further, the alleged offensive clips were broadcast in foreign media extensively. The threat to arrest only local journalists and in relation to one broadcast content appears to be discriminatory and a selective exercise of the power of arrest. The Constitution expressly prohibits discrimination and provides for the national values and principles of equity and equality. The values and principles of the Constitution are binding on all state officers in the exercise of their authority including the Inspector General. The Commission notes that there exist laws relating to the regulation of media and broadcasting standards. In the event, that the broadcast was in any way in violation of the law, the mechanisms established by law to resolve disputes or to hold accountable those that violate the law should be used. We urge the Inspector General to report the alleged violation to the Media Council and/or the Broadcasting Standards Committee. As the office charged with enforcing the law against those who violate it, his office must itself respect the law and comply with both the Constitution and the law. The full and faithful implementation of the Constitution is dependent on the exercise of authority in accordance with the Constitution by all state offices and state organs. Indeed, the Constitution places greater responsibility on state officers in Chapter Six of the Constitution in view of the powers granted by the Constitution to them. Article 73 expressly states that authority assigned to a state officer is a public trust to be exercised in a manner that is consistent with the purposes and objects of the Constitution; demonstrates respect for the people; promotes public confidence in the integrity of the office; and vests in the state officer the responsibility to serve the people rather than to rule them. The alleged threat to arrest journalists for exercising their rights under article 33 of the Constitution appears to be an exercise of authority that runs counter to the purposes of article 34(2)(b) of COK which prohibits the State from penalizing any person for any opinion or view or the content of any broadcast, publication or dissemination. The Inspector General is a state officer under article 260 of COK. The Commission urges him to reconsider the pursuit of arrest of journalists and instead use other mechanisms established in law to address the concerns he may have and that may be legitimate. Finally, CIC urges Kenyans to remain vigilant in safeguarding the implementation of the Constitution in letter and spirit and in particular the full implementation of the Bill of Rights in Chapter 4 of COK, 2010. CHARLES NYACHAE, Chairman. Annex 2: Processed Bills/Acts of Parliament (a) Bills reviewed by CIC and released for publication and tabling in Parliament. (b) Bills under review at CIC. (c) Published Bills under Review by Parliament. (d) Bills under review by County Assemblies. (e) List of Legislation Enacted after Review by CIC (Pursuant to Art. 261). (f) Cumulative List of Laws Enacted after the Promulgation of the Constitution (National Assembly, Senate and County Assemblies). (1) Bills Reviewed by CIC and Released for Publication and Tabling in Parliament (Oct-Dec, 2013) 1. Access to Information Bill 7. Legal Aid Bill 2. Contempt of Court Bill 8. Mining Bill 3. Controller of Budget Bill 9. National Coroners Service Bill 4. Data Protection Bill 10. Private Security Industries Regulation Bill 5. Magistrates Court (Amendment) Bill 11. Public Service Commission (Amendment) Bill 6. Victims Of Offences Protection Bill (2) Bills Under Review at CIC (Oct-Dec, 2013) 1. National Registration and Identification of Persons Bill 2012 6. Water Bill 2. Refugee Bill 7. Community Land Bill 3. Kenya Food and Drugs Administration Bill 8. Petroleum Bill 4. Persons with Disability Bill 9. Basic Education Act (Amendment) Bill 5. Pharmacies Bill (3) Published Bills Under Review by Parliament 1. Senate Bills . as Reviewed By Bill [Date of Publication CIC? Status 1. The National Flag, Emblems and Names | 5th July, 2013 No Forwarded to the National Assembly on 4th December (Amendment) Bill, 2013 2013. Awaiting Second Reading in National Assembly 2. The County Governments Amendment | 26th July, 2013 Yes Forwarded to the National Assembly on 4th December Bill, 2013 2013. Awaiting Second Reading in National Assembly 3. The County Government Amendment 7th August, 2013 Yes Forwarded to the National Assembly on 4th December Bill (No 2), 2013 2013. Awaiting Second Reading in National Assembly 4. | The County Governments Public Finance} 4th October, 2013 No Awaiting Third Reading Management Transition (Amendment) Bill 5. The County Industrial Development Bill, | 11th October, 2013 No Awaiting First Reading 6. The Wildlife (Conservation and 11th October, 2013 No Awaiting Second Reading Management Amendment Bill, 2013 7. The Statute Law Misc Amendment Bill, | 22nd October, 2013 Yes Awaiting Second Reading 2. National Assembly Bills Bill [Date of Publication Reviewed by CIC Status 1. The Marriage Bill, 2013 5 July, 2013 Yes Awaiting Second Reading 2. The Constitution of Kenya (Amendment Bill),} 12th July, 2013 Yes Awaiting Second Reading 3. The National Police Service (Amendment), | 16th July, 2013 Yes Awaiting Second Reading Bill, 2013 4. | The National Flag, Emblems and Names 26th July, 2013 No Awaiting Second Reading (Amendment), Bill 2013 5. The Law Society of Kenya Bill, 2013 6th August, 2013 No Awaiting Second Reading 6. The Constitution of Kenya (Amendment) Bill,] 6th August 2013 Yes Awaiting Second Reading. (CIC 2013 moved to court to challenge constitutionality of the Bill) 7. The Protection Against Domestic Violence 11th October, 2013 Yes Awaiting Second Reading Bill, 2013 8. The Kenya Qualifications Framework Bill, 11th October, 2013 No Awaiting Second Reading 9. Statute Law (Miscellaneous Amendment 30th October, 2013 Yes Motion lost Bill), 2013 10. Statute Law (Miscellaneous Amendment 30th October, 2013 Yes Awaiting Second Reading Bill)(No. 2) 11. The Military Veterans Bill, 2013 1st November, 2013 No Awaiting Second Reading 12. The Public Procurement and Disposal 18th October, 2013 No Awaiting Second Reading (Amendment Act), 2013 13. The Fertilizers and Animal Foodstuff 1st November, 2013 No Awaiting Second Reading (Amendment), Bill 14. The Parliamentary Society of Kenya Bill, 1st November, 2013 No Awaiting Second Reading 15. The Value Added Tax (Amendment) Bill, 8th November, 2013 No Awaiting Second Reading 16. The Retirement Benefits (Deputy President | 8th November, 2013 No Awaiting Second Reading and Designated State Officers), Bill, 2013 17. The Counsellors, Psychologists and 8th November, 2013 Yes Awaiting Second Reading. (Add | Psychotherapists Bill, 2013 ara nclOnatie 18. The Persons with Disabilities (Amendment) | 22nd November, 2013 No Awaiting First Reading Bill, 2013 (4) Legislation Enacted After Review By CIC 1. Commission of Administrative Justice Act (No. 23 of 2011) 13. Kenya National Commission on Human Rights Act (No. 14 of 2. Commission on Revenue Allocation Act (No. 16 of 2011) 2011) 14. National Gender and Equality Commission Act (No. 15 of 2011) 22nd August, 2014 THE KENYA GAZETTE 2203 3. Elections Acts Act (No. 24 of 2011) 15. National Police Service Commission Act (No. 30 of 2011) 4. Environment and Land Court Act (No. 19 of 2011) 16. National Police Service Act (No. 11A of 2011) 5. Ethnics and Anti-Corruption Commission Act (No. 22 of 2011) | 17. Political Parties Act (No. 11 of 2011) 6. Independent Electoral and Boundaries Commission (No. 9 of 18. Power of Mercy Act (No. 21 of 2011) 2011) 19. Salaries and Remuneration Commission Act (No. 10 of 2011) 7. Independent Offices Appointment Act (No. 8 of 2011) 20. Urban Areas and Cities Act (No. 13 of 2011) 8. Independent Policing Oversight Authority Act (No. 35 of 2011) | 9). Vetting of Judges and Magistrates Act (No. 2 of 2011) 9. Industrial Court Act (No. 20 of 2011) 22. Vetting of Judges and Magistrates (Amendment) Act, (No. 6 of 10. Judicial Service Act (No. 1 of 2011) 2011) 11. Kenya Citizenship and Immigration Act (No. 12 of 2011) 12. Kenya Citizens and Foreign Nationals Management Service Act (No. 31 of 2011) 23. Assumption of the Office of the President Act (No. 21 of 2012) | 37. Statute Law Miscellaneous Act (No. 12 of 2012) 24. County Governments Act (No. 17 of 2012) 38. Teachers Service Commission Act (No. 20 of 2012) 25. Intergovernmental Relations Act (No. 2 of 2012) 39. Transition to Devolved Government Act (No. | of 2012) 26. Kenya Defense Forces Act (No. 25 of 2012) 40. Treaty Making and Ratification Act (No. 45 of 2012) 27. Land Act (No. 6 of 2012) 41. Statute Law Miscellaneous (Amendment) Act, (No. 2 of 2012) 28. Land Registration Act (No. 3 of 2012) 42. Vetting of Judges and Magistrates (Amendment) Act, (No 43 of 29. Leadership and Integrity Act (No. 19 of 2012) 2012 30. National Intelligence Service Act (No. 28 of 2012) 43. Elections (Amendment) Act, (No. 31 of 2012) 31. National Land Commission Act (No. 5 of 2012) 44. Elections (Amendment) No. 2 Act, (No. 32 of 2012) 32. National Security Council Act (No. 23 of 2012) 45. Elections (Amendment) No. 3 Act, (No. 48 of 2012) 33. Office of the Attorney-General Act (No. 49 of 2012) 46. Judicature (Amendment) Act, (No. 10A of 2012) 34. Petitions to the Parliament (Procedure) Act (No. 22 of 2012) 47. Political Parties (Amendment) Act, (No. 50 of 2012) 35. Public Finance Management Act, 2012 (18 of 2012) 36. Public Service Commission Act (No. 13 of 2012) 48. County Governments Public Finance Management Transition 55. The Kenya Information and Communications (Amendment) Act Act (No. 8 of 2013) 2013 49. National Government Co-ordination Act (No. | of 2013) 56. The Media Council Act, (No 46 of 2013) 50. Transition County Allocation of Revenue Act (No. 5 of 2013) 57. The Agriculture, Fisheries and Food (Amendment) Act, (No 13 Sl. Transition County Appropriation Act (No. 6 of 2013) of 2013) 52. Division of Revenue Act, 2013 58. The Wildlife Conservation and Management Act, (No 47 of 53. The Election Campaign Financing Act (No 42 of 2013) 2013) . 54. ‘The Matrimonial Property Act 2013 59. The County Allocation of Revenue Act, (No 34 of 2013) 60. The Vetting of Judges and magistrates (Amendment) Act 2013 (5) Cumulative List of All Laws Enacted After Promulgation of the Constitution of Kenya 2010 (a) Legislation Enacted by Parliament 1. Commission for the Implementation of the Constitution Act (No. 9 of 2010) 2. Finance Act, (No. 10 of 2010) 3. Animal Technicians Act (No. 11 of 2010) 4. Competition Act (No.12 of 2010) 5. Commission of Administrative Justice Act (No. 23 of 2011) 26. National Police Service Act (No. 11A of 2011) 6. Commission on Revenue Allocation Act (No. 16 of 2011) 27. Political Parties Act (No. 11 of 2011) 7. Elections Acts Act (No. 24 of 2011) 28. Power of Mercy Act (No. 21 of 2011) 8. Engineers Act (No. 43 of 2011) 29. Price Control (Essential Goods) Act (No. 26 of 2011) 9. Environment and Land Court Act (No. 19 of 2011) 30. Prohibition of Female Genital Mutilation Act (No. 32 of 2011) 10. Ethnics and Anti-Corruption Commission Act (No. 22 of 2011) | 31. Public Appointments (Parliamentary Approval) Act, 2011 (No. 11. Independent Electoral and Boundaries Commission (No. 9 of 33 of 2011) 2011) 32. Salaries and Remuneration Commission Act (No. 10 of 2011) 12. Independent Offices Appointment Act (No. 8 of 2011) 33. Tourism Act (No. 28 of 2011) 13. Independent Policing Oversight Authority Act (No. 35 of 2011) | 34. Unclaimed Financial Assets Act (No. 40 of 2011) 14. Industrial Court Act (No. 20 of 2011) 35. Urban Areas and Cities Act (No. 13 of 2011) 15. Judicial Service Act (No. 1 of 2011) 36. Vetting of Judges and Magistrates Act (No. 2 of 2011) 16. Kenya Citizenship and Immigration Act (No. 12 of 2011) 37. Veterinary Surgeons and Veterinary Para-Professionals Act (No. 17. Kenya Citizens and Foreign Nationals Management Service Act 29 of 2011) (No. 31 of 2011) 38. Capital Markets (Amendment) Act, (No. 37 of 2011) 18. Kenya National Commission on Human Rights Act (No. 14 of 39. Central Depositories (Amendment) Act, (No. 38 of 2011) 2011) 40. Industrial Training (Amendment) Act, (No. 34 of 2011) 19. Limited Liability Partnership Act (No. 42 of 2011) 41. Nurses (Amendment) Act, (No. 27 of 2011) 20. Mutual Legal Assistance Act (No. 36 of 2011) 42. Tea (Amendment) Act, (No. 4 of 2011) 21. National Construction Authority Act (No. 41 of 2011) 43. Traffic (Amendment) Act, (No. 3 of 2011) 22. National Gender and Equality Commission Act (No. 15 of 2011)} 44. Vetting of Judges and Magistrates (Amendment) Act, (No. 6 of 23. National Government Loans Guarantee Act (No. 18 of 2011) 2011) 24. National Payment System Act (No. 39 of 2011) 25. National Police Service Commission Act (No. 30 of 2011) 45. Appropriation Act, 2012 (No. 11 of 2012) 73. Prevention of Terrorism Act (No 30 of 2012) 46. Assumption of the Office of the President Act (No. 21 of 2012) | 74. Public Finance Management Act, 2012 (18 of 2012) 47. Breast Milk Substitutes (Regulation and Control) Act (No. 34 of | 75. Public Service Commission Act (No. 13 of 2012) 2012) 76. Public Service Superannuation Scheme Act (No. 8 of 2012) 48. Cancer Prevention and Control Act (No. 15 of 2012) 77. Publication of Electoral Opinion Polls Act (No. 39 of 2012) 49. Consumer Protection Act (No. 46 of 2012) 78. Statute Law Miscellaneous Act (No. 12 of 2012) 50. County Governments Act (No. 17 of 2012) 79. Supplementary Appropriation Act (No. 7 of 2012) 51. Finance Act (No. 4 of 2012) 80. | Teachers Service Commission Act (No. 20 of 2012) 52. Finance Act (No. 57 of 2012) 81. Transition to Devolved Government Act (No. | of 2012) 53. Intergovernmental Relations Act (No. 2 of 2012) 82. Treaty Making and Ratification Act (No. 45 of 2012) 54. Kenya Defense Forces Act (No. 25 of 2012) 83. Universities Act (No. 42 of 2012) 55. Kenya Deposit Insurance Act (No. 10 of 2012) 84. Proceeds of Crime and Anti-Money Laundering (Amendment) 56. Kenya Examinations Council Act (No. 29 of 2012) Act, (No. 51 of 2012) 57. Kenya Plant Health Inspectorate Service Act (No. 54 of 2012) 85. Seed and Plant Varieties (Amendment) Act, 2012 (No. 53 of 58. | Kenya School of Government Act (No. 9 of 2012) 2012) 59. Kenya School of Law Act (No. 26 of 2012) 86. Statute Law Miscellaneous (Amendment) Act, (No. 2 of 2012) 60. Land Act (No. 6 of 2012) 87. Traffic (Amendment) Act, (No. 37 of 2012) 61. Land Registration Act (No. 3 of 2012) 88. Traffic (Amendment) No. 2 Act, (No. 38 of 2012) 62. Leadership and Integrity Act (No. 19 of 2012) 89. Truth, Justice and Reconciliation (Amendment) Act, (No. 44 of 63. _ Legal Education Act (No. 27 of 2012) 2012) 64. National Authority for the Campaign against Alcohol and Drug 90. ye ae of Judges and Magistrates (Amendment) Act, (No 43 of Abuse Act (No. 14 of 2012) 65. National Intelligence Service Act (No. 28 of 2012) 91. Capital Markets (Amendment) Act, (No. 35 of 2012) 66. National Land Commission Act (No. 5 of 2012) 92. Central Bank of Kenya (Amendment) Act, (No. 36 of 2012) 67. National Security Council Act (No. 23 of 2012) 93. Elections (Amendment) Act, (No. 31 of 2012) 68. National Transport and Safety Authority Act (No. 33 of 2012) 94. Elections (Amendment) No. 2 Act, (No. 32 of 2012) 69. Office of the Attorney-General Act (No. 49 of 2012) 95. Elections (Amendment) No. 3 Act, (No. 48 of 2012) 70. Partnerships Act, 2012 (No. 16 of 2012) 96. Judicature (Amendment) Act, (No. 10A of 2012) 71. Petitions to the Parliament (Procedure) Act (No. 22 of 2012) 97. — Political Parties (Amendment) Act, (No. 50 of 2012) 72. Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act, 2012 (No. 56 of 2012) 98. County Governments Public Finance Management Transition 114. The Microfinance (Amendment) Act 2013 Act (No. 8 of 2013) 115. The Kenya Deposit Insurance (Amendment) Act 2013 99. Kenya Institute of Curriculum Development Act (No. 4 of 2013)} 116. The Insurance (Amendment) Act 2013 100. The National Commission of for UNESCO Act (No.5 of 2013) | 117. The (Motor Vehicle Third Party Risks) (Amendment) Act 201 101. National Honours Act (No 11 of 2013) 118. The Tax Appeals Act 2013 102. National Government Co-ordination Act (No. 1 of 2013) 119. The Capital Markets (Amendment) Act 103. Office of the Director of Public Prosecution Act (No. 2 of 2013) | 120. The Value Added Tax Act, (No 35 of 2013) 104. Public Health Officers Act (No. 12 of 2013) 121. The Election Campaign Financing Act , (No 42 of 2013) 105. Supplementary Appropriation Act (No. 3 of 2013) 122. The Matrimonial Property Act 2013 106. Transition County Allocation of Revenue Act (No. 5 of 2013) 123. The Kenya Information and Communications (Amendment) Act 107. Transition County Appropriation Act (No. 6 of 2013) 2013 108. Division of Revenue Act, 2013 124. The Media Council Act, (No 46 of 2013) 109. Customs and Excise (Amendment) Act, (No. 10 of 2013) 125. The Agriculture, Fisheries and Food (Amendment) Act, (No 13 110. Presidential Retirement Benefits (Amendment) Act, (No. 9 of of 2013) 2013) 126. The Wildlife Conservation and Management Act, (No 47 of 111. The Appropriation Act, 2013 2013) 112. The Constituency Development Fund (Amendment (Act, 2013 127. The Truth Justice and Reconciliation (Amendment) Act 2013 113. The Finance Act, (No 38 f 2013) 128. The County Allocation of Revenue Act, (No 34 of 2013) 129. The Constituencies Development Fund (Amendment) 2013 130. The National Social Security Act, (No 45 of 2013) 131. The Vetting of Judges and magistrates (Amendment) Act 2013 8. Legislation Enacted by County Assemblies* 1. Baringo County Appropriation Act, 2013 39. Mandera County Supplementary Appropriation Act (No. | of 2. Baringo County Public Finance Act, 2013 2013) 22nd August, 2014 THE KENYA GAZETTE 2205 3. | Bomet County Appropriation Act, 2013 40. Marsabit County Appropriation Act, 2013 4. Bungoma County Appropriation Act (No | of 2013) 41. Meru County Appropriation Act (No. | of 2013) 5. Bungoma County Finance Act, 2013 42. Meru County Appropriation 6. Bungoma County Supplementary Appropriation Act, 2013 (Amendment) Act (No. 3 of 2013) 7. Busia County Appropriation Act, 2013 43. Migori County Appropriation Act.2013 8. Busia County Supplementary Appropriation (Amendment) Act, 44. Mombasa County Appropriation Act, 2013 2013 45. Mombasa County Finance Act, 2013 9. Elgeyo Marakwet County Appropriation Act, 2013 46. Murang’a County Appropriation Act, 2013 10. Embu County Appropriation Act, 2013 47. Nairobi City County Appropriation Act (No. | of 2013) 11. Garisssa County Appropriation Act, 2013 48. Nairobi City County Finance Act (No. 2 of 2013) 12. Homa Bay County Appropriation Act, (No. | of 2013) 49. Nairobi City County Provisional Collection of Revenue Act (No. 13. Isiolo County Appropriation Act (No. | of 2013) 3 of 2013) 14. Kajiado County Appropriation Act, 2013 50. Nairobi City County Flag and Other Symbols Act (No. 5 of 2013) 15. Kakamega County Appropriation Act (No. 1 of 2013) 51. Nandi County Appropriation Act, 2013 16. Kakamega County Finance Act, 2013 52. Nakuru County Finance Act, 2013 17. Kericho County Appropriation Act, 2013 53. Nakuru County Appropriation Act, 2013 18. Kiambu County Finance Act (No. 3 of 2013) 54. Narok County Appropriation Act, 2013 19. Kiambu County Emergency Fund Act (No. 4 of 2013) 55. Narok County Supplementary Appropriation Act, 2013 20. Kiambu County Supplementary Appropriation Act (No. 5 of 2013)} 56. Nyamira County Appropriation Act, 2013 21. Kiambu County Appropriation Act, 2013 57. Nyamira County Appropriation 22. Kiambu County Supplementary Appropriation Act, 2013 (Amendment) Act (No. 2 of 2013) 23. Kiambu County Alcoholic Drinks Control Act,2013 58. Nyandarua County Appropriation Act (No. 1 of 2013) 24. Kilifi County Appropriation Act, 2013 59. Nyeri County Appropriation Act (No. | of 2013) 25. Kirinyaga County Appropriation Act (No. 1 of 2013) 60. Samburu County Appropriation Act (No. 1 of 2013) 26. Kisii County Appropriation Act,2013 61. Samburu County Supplementary Appropriation Act, 2013 27. Kisumu County Appropriation Act (No. | of 2013) 62. Siaya County Appropriation Act,2013 28. Kisumu County Finance Act,2013 63. Taita Taveta Appropriation Act, 2013 29. Kisumu County Supplementary Appropriation Act, 2013 64. Tana River County Appropriation Act, 2013 30. Kisumu County Provisional Collection of Revenue Act, 2013 65. Tharaka Nithi County Appropriation Act, 2013 31. Kitui County Appropriation Act (No. 1 of 2013) 66. Trans Nzoia County Appropriation Act, 2013 32. Kirinyaga County Appropriation Act,(No. 1 of) 2013 67. Turkana County Appropriation Act, 2013 33. Kwale County Appropriation Act, 2013 68. Uasin Gishu County Appropriation Act, 2013 34. Laikipia County Appropriation Act (No. | of 2013) 69. Vihiga County Appropriation Act (No. 1 of 2013) 35. Lamu County Appropriation Act, 2013 70. Wajir County Appropriation Act, 2013 36. Machakos County Appropriation Act, 2013 71. West Pokot County Appropriation Act (No. | of 2013) 37. Makueni County Appropriation Act, 2013 38. Mandera County Appropriation Act (No. | of 2013) * Information on enacted laws collected from www.kenyalaw.org, www.parliament.go.ke and reports submitted to CIC by County Assemblies. 9. Bills Under Review/Development by County Assemblies* 1. Bomet County Finance Bill, 2013 2. Kakamega Ward Development Fund Bill,2013 3. Kirinyaga County Alcohol Bill,2013 4. Kirinyaga County Village Units Bill,2013 5. Kisii County Agricultural Co-operatives Bill,2013 6. Kisii County Finance Bill,2013 7. Kisii County Pre-primary Education Bill,2013 8. Kisii County Quarries Bill,2013 9. | Kwale County Supplementary Appropriation Bill,2013 10. Mandera County Finance Bill, 2013 11. Meru County Alcoholic Drinks Bill, 2013 12. Meru County Finance Bill, 2013 13. Meru County Symbols and Emblems Bill, 2013 14. Migori County Supplementary Appropriation Bill, 2013 15. Mombasa County Flag & Emblems Bill,2013 16. Mombasa County Rating Bill,2013 17. Mombasa County Tax Waiver Administration Bill,2013 18. Murang’a County Alcoholic Drinks Control and Management Bill,2013 19. Murang’a County Ward Development Fund Bill,2013 20. Muranga County Youth Technical Training Center Bill,2013 21. Narok County Bursaries Bill, 2013 22. Narok County Supplementary Appropriation Bill, 2013 23. Nyamira County Finance Bill,2013 24. Nyandarua County Assembly Service Bill,2013 25. Nyandarua County Finance Bill,2013 26. Nyandarua County Supplementary Appropriation Bill,2013 27. Nyeri County Alcoholic Drinks Control and Management Bill,2013 28. Nyeri County Finance Bill,2013 29. Siaya County Flags & symbols Bill,2013 30. Siaya County Tax waivers Administration Bill,2013 31. Tana River County Finance Bill,2013 32. Turkana County Assembly Board Bill,2013 33. Turkana County Finance Bill,2013 34. Turkana County Flag, Emblems , Names Bill,2013 35. Turkana County Skill Development Support Fund Regulation Bill,2013 36. Vihiga County Education Fund (Amendment) Bill, 2013 37. West Pokot County Supplementary Appropriation Bill, 2013 Annex 3: Policies Reported in the Various Quarterly Reports 2011 2012 2013 Policy Name Jan- Oct- | Jan- Oct- | Jan- Mar A pr-Jun| Jul-Sep Dec Mar A pr-Jun| Jul-Sep Dec | Mar Apr-Jun|Jul-Sep| Oct-Dec 1 National Registration, Identification x x x : and Refugees Policy 2. National Anti-Corruption Policy K x 3. National Security Policy kK x 4. National Policing Policy K x 5. National Intelligence Policy x x 6. Defence Policy x 7. Correctional Policy x National Policy on Access to Justice 8. : x x Policy 9. National Policy on Human Rights x x x x 10. | National Health Policy x x x x 11. | Internally Displaced Persons Policy x 12. | Disaster Management Policy x 13. | Fire Management Policy x 14. | Gender Mainstreaming Policy x 15. | Disability Mainstreaming Policy x 16. | Legal Aid x 17. | National Values Policy x 18. | Foreign Policy x 19. | Gender Policy x 20. | Consular Policy x 21. | Evacuation Policy x Administration of Voting Rights for 22. : : x Diaspora Policy Youth Polytechnics and Vocational 23. : x Sector Policy 4 Youth Volunteerism and x “| Community Service Policy Youth Internship and Employment 25. . x Policy 26. | Libraries Policy x 27. | Language of Kenya Policy x x 28. | Records Management Policy x 29. | Music Policy x National Culture and Heritage 30. | Policy/ National Policy on Culture x x and Heritage, 2009 31. |Community Development Policy x 32. | National Social Protection Policy x x National Gender and Development 33. : x Policy 34 National Policy on Persons with x ~ "| Disabilities National Policy on Older Persons 35. . x x and Ageing 36. | National Policy on Children x 22nd August, 2014 2012 2013 Policy Name Tan- Mar \Apr-Jun| Jul-Sep Oct- Jan- Oct- Jan- Dec Mar \Apr-Jun| Jul-Sep Apr-Jun| Jul-Sep | Oct-Dec Dec Mar 37. | National Prosecutions Policy 38. | Military and Defence Policy 39. | National Land Policy 40. | Universal Health Coverage Policy 41. | Industrial Training Policy x Occupational Safety and Health 42. : x Policy 43. | Productivity Policy x 44. | Employment Policy 45. | Child Labour Policy 46. | Medium Term Plan II (2013-2017) x x 47. | Ambulance Policy x x 48. | Public Participation Policy x x 49. | Water Policy x x 50. Wildlife Conservation and x x Management Policy Sessional Paper No. 14 of 2012 on 51. | Reforming the Education and Training Sectors in Kenya Cells marked “yellow” are policies in which it was mentioned the follow up would be done next quarter, then in nothing get mentioned in that (next) quarter. Annex 4: Chairperson and Commissioners of the Commission Mr. Charles Nyachae Chairperson Dr. Elizabeth Muli Vice-Chairperson. Convener of the Executive and Security Thematic Team Dr. Imaana Kibaaya Laibuta Convener of the Judiciary and Constitutional Commissions Thematic Team Prof. Peter Wanyande Convener of the Devolved Government Thematic Team Mr. Kamotho Waiganjo Convener of the Public Finance 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 Dr. Florence Omosa Convener of the Representation of the People & the Legislature Team Annex 5: Senior Management Team Ms. Lily Koros Ag. CEO/Director Management Services Esther Kodhek Director of Programmes Mugita Gesongo Head of Monitoring and Evaluation Mr.Kennedy Malinda Head of Supply Chain Management Mr. Khalid Salim Head of Communications Mr. Bernard Cherutich Head of Accounts Mr. Howard Olume Head of Human Resource Ms. Doreen Muthaura Principal Programme Officer, Legislative Drafting Mrs. Elizabeth K. Obiero Principal Programme Officer, Organisational Development & Institutional Strengthening Mr. James Wagala Principal Programme Officer, Organisational Development & Institutional Strengthening Ms. Sophia Sitati Senior Programmes Officer, General Thematic Area Support Mr. Fredrick Oromo Senior Supply Chain Management Officer Mrs. Christine Njeru Kuria Senior Programmes Officer-Citizenship and Bill of Rights Thematic Area Ms. Caroline Gaita Senior Programmes Officer, Judiciary and Constitutional Commissions Thematic Area Ms. Edith C. Cheramboss Senior Programmes Offers, Public Service and Leadership Thematic Area Ms. Mary Goretti Orwa The Representation of the People and The Legislature Thematic Area Ms. Ruth Muthui Senior Programme Officer, Judiciary and Constitutional Commissions Thematic Area Mr. Abdirazak Abdi, Senior Programmes Officer, Land and Environment Thematic Area Ms. Valerie Nangidi Senior Programmes Officer, Devolved Government Thematic Area Lucy Gaithi, Senior Programme Officer, M&E Kephas Okach, Senior Programme Offier, M&E Mr. Timothy Kariuki Senior Programmes Officer.