Post by Ed on Oct 31, 2005 4:54:15 GMT 3
'This is an illegal document'
by PHEROZE NOWROJEE
Publication Date: 10/30/2005
August is a month when disasters happen to Kenya. This year has been no exception. The Attorney-General added another disaster to our August list, when on August 22, he published the Wako Draft (proposed new Constitution). It is a disaster because it proposes an illegal document as a "Constitution", and because it has resulted in a referendum on an illegal document.
The High Court has identified a key aspect of our constitution making process. It is that the new Constitution is being made "in peace time and in the context of an existing valid constitutional order". Two serious questions then arise:
-Is the proposed new Constitution being brought into effect within the existing valid constitutional order, that is legally?
-Is the old constitution being brought to an end within the existing valid constitutional order, that is legally?
The new Constitution is to be a law. Under the existing constitutional order, every law must be passed by Parliament. The proposed new Constitution (Wako Draft), will not be passed by Parliament. It was not passed by Parliament before it was drafted and published by AG Amos Wako. And even if the referendum votes Yes, the Wako Draft will still not go to Parliament for passing, but will go directly to the President for publication and proclamation. He, too, is not required to give it his Assent. There is no other provision in the Constitution that can allow it to be made law in some other manner. This is an illegal document.
Section 28A of the Consensus Act provides that if the referendum says Yes, the President shall, within 14 days promulgate and publish the text of the new Constitution in the Kenya Gazette. The proposed new Constitution shall then become law on being proclaimed so in the gazette.
This is not in conformity with any provision of the existing valid constitutional order. There is no power in the President to bring a law into being in this manner, much less a new constitution. Becoming law by proclamation is a process known to a state with an absolute monarchy, or a dictatorship and not a republican democratic state.
Put simply, there is no legal machinery for the Wako Draft to be enacted into law. Without enactment by Parliament under the present Constitution, it cannot become law in the Republic of Kenya, and to bring it into operation would constitute an "abrupt political change". What the President is being asked to do is illegal. The legislative power of Parliament is exercisable only by Bills passed by the National Assembly. It can be clearly seen on the Blue Supplement cover that the proposed new Constitution is not a Bill. If it is not a Bill and it is not passed by Parliament, the Wako Draft cannot become law. Parliament cannot by a statute, (Consensus Act) change the method by which laws are to be enacted or a Constitution is to be promulgated.
The AG is aware of all this. He gave a written legal opinion to the Parliamentary Select Committee on August 25, last year. He advised that in a constitutional democracy the constituent power of the people itself as well as the exercise of that power are written into the existing constitution and constitutionalised. The right to confirm the product of a constituent assembly through a referendum is also required to be a constitutional provision. There has been no such entrenchment of any such provisions in the Constitution of Kenya. The answer to the first question is that the proposed new Constitution is not being brought into operation legally.
The second question is: Is the existing Constitution being repealed legally? There is no provision for the repeal of the existing Constitution in the Constitution itself. Even in the Consensus Act, there is no provision to abrogate the existing Constitution. Yet, the Wako Draft has such a provision in Article 290.
Mr Wako has no power to repeal the Constitution. The referendum does not and cannot legislate to repeal an existing Constitution. The President does not by publishing or proclaiming, gain a new power to repeal the existing Constitution. And Parliament has no such power under the existing provision (S.47). The existing Constitution is not being repealed legally.
by PHEROZE NOWROJEE
Publication Date: 10/30/2005
August is a month when disasters happen to Kenya. This year has been no exception. The Attorney-General added another disaster to our August list, when on August 22, he published the Wako Draft (proposed new Constitution). It is a disaster because it proposes an illegal document as a "Constitution", and because it has resulted in a referendum on an illegal document.
The High Court has identified a key aspect of our constitution making process. It is that the new Constitution is being made "in peace time and in the context of an existing valid constitutional order". Two serious questions then arise:
-Is the proposed new Constitution being brought into effect within the existing valid constitutional order, that is legally?
-Is the old constitution being brought to an end within the existing valid constitutional order, that is legally?
The new Constitution is to be a law. Under the existing constitutional order, every law must be passed by Parliament. The proposed new Constitution (Wako Draft), will not be passed by Parliament. It was not passed by Parliament before it was drafted and published by AG Amos Wako. And even if the referendum votes Yes, the Wako Draft will still not go to Parliament for passing, but will go directly to the President for publication and proclamation. He, too, is not required to give it his Assent. There is no other provision in the Constitution that can allow it to be made law in some other manner. This is an illegal document.
Section 28A of the Consensus Act provides that if the referendum says Yes, the President shall, within 14 days promulgate and publish the text of the new Constitution in the Kenya Gazette. The proposed new Constitution shall then become law on being proclaimed so in the gazette.
This is not in conformity with any provision of the existing valid constitutional order. There is no power in the President to bring a law into being in this manner, much less a new constitution. Becoming law by proclamation is a process known to a state with an absolute monarchy, or a dictatorship and not a republican democratic state.
Put simply, there is no legal machinery for the Wako Draft to be enacted into law. Without enactment by Parliament under the present Constitution, it cannot become law in the Republic of Kenya, and to bring it into operation would constitute an "abrupt political change". What the President is being asked to do is illegal. The legislative power of Parliament is exercisable only by Bills passed by the National Assembly. It can be clearly seen on the Blue Supplement cover that the proposed new Constitution is not a Bill. If it is not a Bill and it is not passed by Parliament, the Wako Draft cannot become law. Parliament cannot by a statute, (Consensus Act) change the method by which laws are to be enacted or a Constitution is to be promulgated.
The AG is aware of all this. He gave a written legal opinion to the Parliamentary Select Committee on August 25, last year. He advised that in a constitutional democracy the constituent power of the people itself as well as the exercise of that power are written into the existing constitution and constitutionalised. The right to confirm the product of a constituent assembly through a referendum is also required to be a constitutional provision. There has been no such entrenchment of any such provisions in the Constitution of Kenya. The answer to the first question is that the proposed new Constitution is not being brought into operation legally.
The second question is: Is the existing Constitution being repealed legally? There is no provision for the repeal of the existing Constitution in the Constitution itself. Even in the Consensus Act, there is no provision to abrogate the existing Constitution. Yet, the Wako Draft has such a provision in Article 290.
Mr Wako has no power to repeal the Constitution. The referendum does not and cannot legislate to repeal an existing Constitution. The President does not by publishing or proclaiming, gain a new power to repeal the existing Constitution. And Parliament has no such power under the existing provision (S.47). The existing Constitution is not being repealed legally.