The Statute Law Miscellaneous Amendment Bill 2012 has been controversially amended, in part, as follows:
Elections Act, 2011 (No. 24 of 2011)
Qualifications for nomination of candidates.
22. (1) A person may be nominated as a candidate for an election under this Act only if that person—
(a) is qualified to be elected to that office under the Constitution and this Act; and
(b) holds a post secondary school qualification recognised in Kenya.
(b) holds, at the minimum, a certificate for end of secondary school education recognized in Kenya.
(1) Notwithstanding any other provision of this Act and for the avoidance of doubt, a person who is nominated as a candidate for election as President or Deputy President is nevertheless eligible for nomination and may contest as a candidate for any other elective seat in the same elections.
(2) If a candidate for election as President or Deputy President is elected as such and is also elected for any other elective seat in the same elections, a vacancy shall thereupon be declared for that other elective seat and a by-election to fill such seat shall be held in accordance with this Act.
Participation in elections by public officers.
(5) A public officer who intends to contest an election under this Act shall resign from public office at least seven months before the date of election.
(5) A public officer who intends to contest an election under this Act shall resign from public office at least five months before the date of election.
Airtime by state radio and television for election campaign.
108. All candidates and political parties participating in an election shall be allocated reasonable airtime on state radio and television broadcasting services during the campaign period.
108. All candidates and political parties participating in an election shall be allocated reasonable airtime on all broadcasting media during the campaign period.
Political Parties Act, 2011 (No. 11 of 2011)
(1A) Until after the first general elections held after the commencement of this Act, nothing provided for in sub-sections (4), (5) or (7) of section 14 shall be construed as requiring a person to vacate his or her seat as a member of Parliament or of a local authority, or as disqualifying any person from eligibility to contest in an election under this Act.
Technically, the National Assembly is the constitutionally ordained law-making branch of government. So technically, what the MPs have done and intend to do through these various, widely unpopular (see twitter hashtag: “#OccupyParliamentKE”) amendments is lawful. Lawful in the mechanical sense that Chief Justice Mutunga condemned in his speech two days ago. To reiterate his challenge to all of us to develop a patriotic and indigenous jurisprudence, the CJ explains that laws must be developed in a way that responds to the needs of the people, and to the national interest which requires, above all, a commitment to the Constitution and to the achievement of its values and vision.
It may not be unlawful for Parliament to make laws as they wish but it is definitely both unlawful and immoral for Parliament to make laws that desecrate the values, principles and norms enshrined in our Constitution.
When one speaks of the immorality of Parliament to push for such amendments, the concern is that there is a total lack of appreciation and respect for the spirit of the Constitution and its enabling legislations.
In the final analysis, one may well argue that these amendments have violated both the letter and spirit of the Constitution, in particular: Article 10(2)(a)(c); Article 20(1), Article 27, Article 35(3), Article 47, Article 73(2), Article 94(2),(4), 95(1),(2), Article 119.
The Chairman of the Constitutional Implementation Commission, Mr Charles Nyachae has already written to House Speaker Kenneth Marende informing him that the commission would move to court to block the amendments which he argued were unconstitutional.
This is the response Nyachae received from Parliament:
“The worst the chair of CIC can do is to demonstrate his illiteracy of the Constitution to this Parliament. let us not use technicalities to stop things we do not want.” – Abdikadir Mohammed, MP Mandera Central.
It is clear that a majority of parliamentarians continue to put their political interests first and have abandoned their role as representatives of the people. This situation is further complicated by members of the Executive who sit in Parliament and use its members to pass and amend laws tailored to suit their political ends. Using the law-making powers of the National Assembly to subvert the Constitution for selfish political gain is both legally and morally wrong.
Meanwhile, the Statute Law Miscellaneous Amendment Bill 2012 is on its way to the President for assent.