PM Got It Wrong Again!

The word consult in its different forms appears 14 times in the Constitution of Kenya promulgated on the 27th of August 2010. The national and county governments are required to consult each other [Articles 6 (2) and 189 (1) (b)]. Parliament is also required to enact laws to prescribe the form and manner of consultation between the national government and county governments in the process of preparing plans and budgets [Articles 220 (2) (c)]. The IEBC is to consult interested parties in determining electoral unit boundaries [Articles 89 (7) (a)]. Article 123 (4) (b), which speaks of voting in the Senate, states that in any matter affecting counties, the Senator elected to represent a county shall determine whether or not to vote in support of, or against, the matter, after consulting the other Senators from his or her county. From the above instances, it is clear that the drafters of the Constitution did not intend that consultation involve agreement, consensus, consent or approval. They intended the purely English meaning of the word to apply. The Oxford Dictionary defines consult as seek information or advice from or to go to somebody for information or advice. Therefore, the efforts often made by the Prime Minister Mr. Odinga and the Commission on the Implementation of the Constitution (CIOC) are at best lame efforts at usurping powers that are not granted either by the spirit or the letter of the Constitution. In the Sixth Schedule, with regard to the appointment of the Chief Justice [24 (2)], the chairperson or members of the Salaries and Remuneration Commission [25 (3)] and when this Constitution requires an appointment to be made by the President with the approval of the National Assembly, until after the first elections under this Constitution, the President shall, subject to the National Accord and Reconciliation Act, appoint a person after consultation with the Prime Minister and with the approval of the National Assembly. [29 (2)] If the drafters had intended that the Prime Ministers approval should be sort in these appointments, they would have written with the approval of the Prime Minister and National Assembly. However, they chose to distinguish the role of Parliament from that of the Prime Minister. The Attorney General is also required by Article 261 (4) to prepare the legislation necessary to implement the constitution in consultation with the Commission for the Implementation of the Constitution.. Again the laws are not to be prepared together, nor is the Attorney General bound by the opinion of CIOC. On its part, Parliament is required to consult the CIOC and the Commission on Revenue Allocation and consider the recommendations of the commissions [Schedule Six 14 (1)]. This paragraph clearly states that the fruits of the consultations will be recommendations and not consensus. Finally Article 259 (11) is so rich that it deserves to be quoted verbatim: If a function or power conferred on a person under this Constitution is exercisable by the person only on the advice or recommendation, with the approval or consent of, or on consultation with, another person, the function may be performed or the power exercised only on that advice, recommendation, with that approval or consent, or after that consultation, except to the extent that this Constitution provides otherwise. This paragraph clearly distinguishes between, for avoidance of any doubt, advice or recommendation (such as the National Police Service Commission

recommending individuals for the post of Deputy Inspector General), approval or consent (such as that required from the National Assembly for the appointment of Cabinet Secretaries) and consultation. His Excellency President Mwai Kibaki, being the patient elderly statesman he is, has all along been patient with the Prime Minister for the sake of national harmony. I would therefore advice the CIOC and the Prime Minister who parade themselves as champions for the implementation of the Constitution to read it first.

Relevant Excerpts from the Constitution of Kenya (www.katiba.mobi thanks to Joe Njeru) Article 6 Devolution and access to services (2) The governments at the national and county levels are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation. The same is expected of parliament, with respect to the Commission on Revenue Allocation when appropriating money out of the Equalisation Fund. Article 89 on Delimitation of electoral units (7) In reviewing constituency and ward boundaries the Commission shall-- (a) consult all interested parties; and Article 123. Decisions of Senate (4) (b) the person who votes on behalf of a delegation shall determine whether or not to vote in support of, or against, the matter, after consulting the other members of the delegation; Article 189. Cooperation between national and county governments (1) Government at either level shall-- (b) assist, support and consult and, as appropriate, implement the legislation of the other level of government; and Article 204. Equalisation Fund (4) The Commission on Revenue Allocation shall be consulted and its recommendations considered before Parliament passes any Bill appropriating money out of the Equalisation Fund. Article 217. Division of revenue In determining the basis of revenue sharing under clause (1), the Senate shall-- (c) consult the county governors, the Cabinet Secretary responsible for finance and any organisation of county governments; and Article 220. Form, content and timing of budgets (2) National legislation shall prescribe-- (c) the form and manner of consultation between the national government and county governments in the process of preparing plans and budgets. Article 259. Construing this Constitution (11) If a function or power conferred on a person under this Constitution is exercisable by the person only on the advice or recommendation, with the approval or consent of, or on consultation with, another person, the function may be performed or the power exercised only on that advice, recommendation, with that approval or consent, or after that consultation, except to the extent that this Constitution provides otherwise. Article 261. Consequential legislation (4) For the purposes of clause (1), the Attorney-General, in consultation with the Commission for the Implementation of the Constitution, shall prepare the relevant Bills for tabling before Parliament, as soon as reasonably practicable, to enable Parliament to enact the legislation within the period specified.

Sixth Schedule - Transitional and consequential provisions Operation of provisions relating to devolved government 14. (1) The laws referred to in section 2 (3) (b) and section 15 may be enacted only after the Commission on the Implementation of the Constitution and, if it has been established, the Commission on Revenue Allocation, have been consulted and any recommendations of the Commissions have been considered by Parliament. Sixth Schedule - Transitional and consequential provisions 24. (2) A new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly. Sixth Schedule - Transitional and consequential provisions 25. (3) Until the legislation referred to in Article 250 is in force, the persons appointed as members or as chairperson of the Salaries and Remuneration Commission shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly. Sixth Schedule - Transitional and consequential provisions 29. (2) Unless this Schedule prescribes otherwise, when this Constitution requires an appointment to be made by the President with the approval of the National Assembly, until after the first elections under this Constitution, the President shall, subject to the National Accord and Reconciliation Act, appoint a person after consultation with the Prime Minister and with the approval of the National Assembly.