National Assembly Speaker Moses Wetang’ula has raised fears on the constitutionality of the National Government Administration Laws (Amendment) Bill 2023 currently before Parliament.
The government-sponsored Bill seeks to amend four existing laws - Assumption of Office of the President Act of 2012, National Security Council Act of 2012, Office of the Attorney-General Act 2012 and the National Government Coordination Act 2013.
In proposing the changes, the Bill seeks to alter the role of government bodies created under principal Acts and the officials in the administration of the State.
However, Mr Wetang’ula, in a communication to the House, says that the changes on State entities that the Bill seeks to achieve relate to “significant constitutional and legal matters” noting that some of which are pending before the courts.
“In seeking to alter the role of the government bodies and the officials, the Bill affects the independence of the bodies and existing checks and balances within the government,” says Speaker Wetang’ula as he moved to assert the authority of Parliament, in a communication of December 7, 2023 to the National Assembly.
The Bill was introduced in the House on December 6, 2023, a day before it proceeded on the long Christmas recess.
The Bill is signed by leader of majority Kimani Ichung’wah, who by virtue of his position, signs government-sponsored Bills brought to the House.
“Any proposed change to the functions of government entities may infringe upon their constitutional and statutory mandates,” said the Speaker.
He, however, went ahead and committed the Bill to the Justice and Legal Affairs Committee (JLAC) for processing by way of facilitating public participation “in the usual manner during the recess period” and to report to the House appropriately.
Even as the Speaker did so, he advised the House committee on Constitution Implementation and Oversight (CIOC) that is charged with the implementation of the 2010 Constitution “to thoroughly scrutinise the proposed amendments in the Bill and ensure their consonance with the Constitution and the written law.”
This means that the two committees will produce two reports for which the Speaker will be required to make a ruling to guide the House, especially if the two committees’ reports do not agree.
If the CIOC committee chaired by Githunguri MP Gathoni Wamuchomba finds the proposed amendments unconstitutional, then the House may choose to agree with the committee’s report or ignore its recommendations.
According to Mr Wetang’ula, where necessary, JLAC may sit jointly with the Administration and Internal Security Committee “to address specific matters in the Bill that require the input of their counterpart committee.”
In its consideration of the Bill, JLAC should lend particular weight to the underlying legal issues in the proposals made, he said. For instance, the proposed changes to the Assumption of Office of the President Act seeks to broaden the assumption of office of the President committee that is in charge of preparations for the swearing-in of a President elect.
In doing so, the amendment seeks to include into the committee, the secretary to the National Security Council (NSC) and the Principal Secretary for Defence as well as increase the president-elect’s nominees within the committee from three to six members.
The Bill also seeks to anchor into the law the Chief Administrative Secretary (CAS) positions despite their constitutionality matter pending before the Court of Appeal.
The High Court had declared the CAS positions unconstitutional following a petition that challenged President William Ruto’s nomination of 50 individuals, who lost in the August 9, 2022 general elections for the positions and forwarded their names to the National Assembly for vetting.
However, Speaker Wetang’ula declined the president’s request citing the constitutionality of the CAS positions.
Speaker Wetang’ula, in a ruling to the House, said that proceeding to vet the CAS nominees would be tantamount to violation of the Constitution as the positions are not among those Parliament is required to undertake approval hearings.
“Members are aware of the ongoing litigation on the constitutionality of the office of CAS. Whereas parliament may consider a proposal to establish the position of CAS, knowledge of the pending court matter must inform any such consideration,” ruled the Speaker.
The Bill goes ahead to propose the replacement of the Attorney-General as the custodian of the public seal with the Head of Public Service.
(HOPS), a position that is not provided for in any law.
Constitutional lawyer Mr Lempa Suyianka said that the Bill is unconstitutional and urged parliament to shoot it down.
“This Bill violates the constitution and should not be allowed to proceed. In the event it does so, I will challenge it in court,” said Mr Suyianka adding; “I will also want to know whether the Attorney-General, who advises the president and the state on legal matters, approved the Bill.
The constitution mandates parliament only to undertake approval hearings for nominees for Cabinet Secretaries, Principal Secretaries, Attorney-General, Inspector-General of Police, Director of Public Prosecutions and Solicitor-General
The others are Director-General National Intelligence Service, High Commissioners and Ambassadors to various missions abroad, chairs and members of constitutional commissions and heads of independent offices among others.
The country has only two independent offices- the Office of Auditor-General and Controller of Budget.
