National Assembly Speaker Moses Wetang'ula on Wednesday dealt a blow to Kenya Kwanza's plans to implement a raft of education reforms without parliamentary approval.
The speaker on Wednesday ordered the Cabinet Secretary for Education Ezekiel Machogu, to halt the implementation of the report on the recommendations of the Presidential Task Force on Education Reforms until it is considered and approved by Parliament.
Mr Wetang'ula's directive followed a complaint by Emuhaya MP Omboko Milemba that the report's recommendations, which the government is already implementing, were unconstitutional.
Instead, he instructed the majority leader, Kimani Ichung'wah (Kikuyu), to investigate the matter and report back to the House in two weeks with a comprehensive statement.
"I direct you to engage the CS and present a comprehensive statement to this House in two weeks' time," Speaker Wetang'ula instructed as he warned that legislative powers rested with the August House.
"No one, and I repeat no one, including a government minister, can purport to make laws or do things that can be interpreted as if they have made laws because they do not have the capacity to make laws," Speaker Wetang'ula added.
Article 94 (5) of the Constitution states: "No person or body other than Parliament shall have the power to make any provision having the force of law in Kenya except by virtue of authority conferred by this Constitution or by law.
Mr Ichung'wah noted that the best CS Education can do is to make recommendations and present them to Parliament for consideration.
"I will take it up with the CS Education to ensure that no recommendation from the Presidential Task Force that touches on statutes or the Constitution is implemented without necessary amendments to the laws," Mr Ichung'wah said.
Mr Omboko told the House that implementing the report of the Presidential Task Force on Education Reforms without the input of Parliament risks creating conflict with stakeholders in the education sector.
For instance, Mr Omboko argued that the report recommended a review of the grades for pre-service teachers, which he warned would jeopardise the mandate of the Teachers Service Commission (TSC) as enshrined in Article 237 (3) of the Constitution.
"The business of legislation is the preserve of this House. As it stands, there is a crisis in the education system with pre-2020 constitution education organs and players seeking to take over power in the education sector in the face of these proposals," said Mr Omboko.
The article further states that the TSC shall review the standards of education and training of persons entering the teaching service, review the supply and demand of teachers and advise the national government on matters relating to the teaching profession.
"I seek your guidance that this matter be dealt with in Parliament so that people do not amend the Constitution and Acts of Parliament through the back door," the Emuhaya MP added.
Other proposals in the report that the Emuhaya MP found objectionable include a move by the ministry to establish a comprehensive school system where all levels of learning are managed as one institution.
There is also a recommendation that the Ministry of Education should recruit staff for special education institutions, which Mr Omboko says is against the Constitution.
He also objected to a proposal to give the TSC the power to employ chaplains and imams in schools, saying it was in direct contravention of Article 9 of the Constitution, which separates "the state and religion, and therefore removes the power of sponsors in schools and replaces it with the TSC".
Rarieda MP Dr Otiende Amollo said the report of the presidential task force may be a policy document, but on its face it is unconstitutional.
"It is also obvious that it is presumptuous in its total assumption of the role of this House. A policy document that has not been crystallised into law is being implemented," Dr Amollo said.
"They have purported to appoint an implementation committee which is already implementing it. This means that it is not even considered necessary to see whether Parliament will pass it into law," the Rarieda MP added.
Ainabkoi MP Samuel Chepkong'a warned that "there is a trend in this country where recommendations are made by committees that are appointed and implemented bypassing this House, yet they have the force of law".
"We don't expect other people who are not elected by anybody to make laws. That is against the constitution. Nobody has the power to make anything that has the force of law except Parliament," Mr Chepkong'a noted.
According to Mr Chepkong'a, "there is no one in this country, no matter how high and mighty they think they are, including the CSs, who think they can make regulations without bringing them to Parliament".
"What we don't want to see as a House is a place where people don't believe in the rule of law. We should be able to celebrate the rule of law in this country where everybody follows the law. But what we are seeing is evasion of the law," said Mr Chepkong'a.
He added that recommendations remain just that, recommendations, "and until they are brought to this house, they can gather dust wherever they are".
