December 2, 2013 - BY JILL COTTRELL GHAI
UNDER
SIEGE: Media crews cover an event. This Bill is, so we are told,
intended to implement the constitution Article 34, which requires
legislation by a deadline; three years.
The
President has returned the controversial Media Council Bill to
Parliament with comments explaining why he has declined to sign it as it
is. But some at least are not rejoicing, as they say that what the
President is proposing is worse than the original.
MPs say they do not have time to reconsider carefully because the Bill must be passed by the time the MPs go off on their Christmas holidays – on December 5, Thursday this week. How so? This Bill is, so we are told, intended to implement the constitution Article 34.
In case you do not have the constitution to hand, it says:
(5) Parliament shall enact legislation that provides for the establishment of a body, which shall—
(a) be independent of control by government, political interests or commercial interests;
(b) reflect the interests of all sections of the society; and
(c) set media standards and regulate and monitor compliance with those standards.
There are other important aspects to Article 34, but this is the only part that requires legislation by a deadline: three years according to Schedule 5. The deadline thus expired in August, but the National Assembly gave itself a single extension – of four months.
Their reason (when one can discern it in the Hansard for July 30, among various complaints about road money going to counties, and not through MPs to constituencies, and other irrelevancies) is that the CIC delayed in forwarding the Bill to the Assembly.
This seems unfair to the CIC: Its website indicates that it received a version dated May 29 and returned it to the AG on July 10 with a considerable number of changes. The mover of the motion did not blame the CIC so much as the executive.
Whatever the reason, the Assembly had at least three false starts before they could muster enough members to pass the extension motion (it required over two-thirds, or 234 members). It finally managed to pass the Bill towards the end of November, and then the President rejected it.
What happens if they do not pass it? MPs themselves, and even more the press, sometimes speak as though the National Assembly will necessarily dissolve!
One member said, “if Parliament fails to pass certain legislation by a specified period of time, any Kenyan may go to court and seek an order that Parliament be dissolved. If the court gives such an order, the President shall dissolve Parliament.”
It’s not quite like that. True, if the legislators do not pass the legislation any person can petition the High Court (Article 261(5)). But the High Court would not immediately demand that Parliament be dissolved. First it would have a hearing.
The constitution envisages that the court could prescribe a timetable for completion of the legislative task - the various parties at the hearing would presumably submit suggestions for the timetable. The High Court does not have to do so this: it could simply leave Parliament to struggle on.
If the High Court did lay down steps, it could require progress reports to the Chief Justice, and in the absence of any report of legislation being passed, the CJ would assume it had not. Or perhaps a fresh application would have to be made to the CJ if the timetable was not met.
In those circumstances he has no option but to advise the President to dissolve the Parliament (which includes the Senate) and the President must comply (Article 261(7)).
The President’s veto does give the Assembly a headache. But also an opportunity. Better to delay, consult, consider, and get it right, even if it means delaying till next year.
Maybe no-one would apply to the High Court. And if they did, if Parliament could propose a sensible timetable for completion, why should the High Court reject it?
It is perhaps not surprising that the National Assembly does not wish to leave its fate in the hands of the judiciary. But we can have some confidence that the courts would not be as vindictive as the parliamentarians sometimes seem to be.
MPs say they do not have time to reconsider carefully because the Bill must be passed by the time the MPs go off on their Christmas holidays – on December 5, Thursday this week. How so? This Bill is, so we are told, intended to implement the constitution Article 34.
In case you do not have the constitution to hand, it says:
(5) Parliament shall enact legislation that provides for the establishment of a body, which shall—
(a) be independent of control by government, political interests or commercial interests;
(b) reflect the interests of all sections of the society; and
(c) set media standards and regulate and monitor compliance with those standards.
There are other important aspects to Article 34, but this is the only part that requires legislation by a deadline: three years according to Schedule 5. The deadline thus expired in August, but the National Assembly gave itself a single extension – of four months.
Their reason (when one can discern it in the Hansard for July 30, among various complaints about road money going to counties, and not through MPs to constituencies, and other irrelevancies) is that the CIC delayed in forwarding the Bill to the Assembly.
This seems unfair to the CIC: Its website indicates that it received a version dated May 29 and returned it to the AG on July 10 with a considerable number of changes. The mover of the motion did not blame the CIC so much as the executive.
Whatever the reason, the Assembly had at least three false starts before they could muster enough members to pass the extension motion (it required over two-thirds, or 234 members). It finally managed to pass the Bill towards the end of November, and then the President rejected it.
What happens if they do not pass it? MPs themselves, and even more the press, sometimes speak as though the National Assembly will necessarily dissolve!
One member said, “if Parliament fails to pass certain legislation by a specified period of time, any Kenyan may go to court and seek an order that Parliament be dissolved. If the court gives such an order, the President shall dissolve Parliament.”
It’s not quite like that. True, if the legislators do not pass the legislation any person can petition the High Court (Article 261(5)). But the High Court would not immediately demand that Parliament be dissolved. First it would have a hearing.
The constitution envisages that the court could prescribe a timetable for completion of the legislative task - the various parties at the hearing would presumably submit suggestions for the timetable. The High Court does not have to do so this: it could simply leave Parliament to struggle on.
If the High Court did lay down steps, it could require progress reports to the Chief Justice, and in the absence of any report of legislation being passed, the CJ would assume it had not. Or perhaps a fresh application would have to be made to the CJ if the timetable was not met.
In those circumstances he has no option but to advise the President to dissolve the Parliament (which includes the Senate) and the President must comply (Article 261(7)).
The President’s veto does give the Assembly a headache. But also an opportunity. Better to delay, consult, consider, and get it right, even if it means delaying till next year.
Maybe no-one would apply to the High Court. And if they did, if Parliament could propose a sensible timetable for completion, why should the High Court reject it?
It is perhaps not surprising that the National Assembly does not wish to leave its fate in the hands of the judiciary. But we can have some confidence that the courts would not be as vindictive as the parliamentarians sometimes seem to be.
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