GAZETTE NOTICE NO. 2053

in accordance with the values and principles of the constitution. The CIC has also developed a sectoral strategy for various key constitutional issues including devolution, representation and legislation, executive and the security sector, the Bill of Rights, public finance, public service and leadership, land and environment and the judiciary and constitutional commissions. At the implementation level significant progress was recorded in the January – March 2011 quarter. A number of legislations, including the Vetting of Judges and Magistrates Act were put in place. Work also began the review of administrative procedures such as on the Police Recruitment Guidelines. The CIC also spent time on key Constitutional interpretation issues, including with respect to the controversy regarding the nominations of the Chief Justice (CJ), Director of Public Prosecution (DPP), Controller of Budget and the Attorney General. A range of public and stakeholder consultations were also undertaken during the period ensuring that the principle of public participation is observed in the Constitution implementation process. Important administrative and programme matters were also address by the CIC during its first three months of work. Setting up the Commission began immediately the Commissioners were sworn in on 4th January 2011. With nothing in place other than an office, the Commissioners spent time discussing where and how to begin. The internal consultations were of two kinds. The first addressed administrative issues, especially those relating to establishment of the Commission complete with a secretariat. Included in these consultations were issues to do with staffing, finance, procurement, information technology and outreach activities, among others. The second category of the initial internal discussions related to technical and programmatic issues. The discussions here focussed on the mandate of the Commission and related matters. The Commission did not anticipate significant impediments to its work when it took office. It nevertheless recognized that like any other life endeavour, challenges would inevitable arise in the course of its work. These challenges were initially not specific and only began to crystallize as the work unfolded and progressed. These challenges, which not necessarily impediments, and can broadly be classified as administrative and organizational challenges, political challenges, technical challenges. A number of steps and actions can be taken to reduce the risks posed by these emerging challenges. Consequently, the report discusses each group of challenges and makes a number of legal, administrative, policy and financial recommendations which the CIC hopes the government and other stakeholders will take forward in support of the implementation of the Constitution. 1. BACKGROUND The Constitution of Kenya, 2010 which was promulgated on 27th August 2011, was an auspicious and historic moment for Kenya. It marked the end of a long journey for the country in search of a constitutional dispensation which truly reflected the will and the aspirations of the people of Kenya. To fully understand the role and the progress that has been made in implementing the new constitution it is important to appreciate the historical background and political context in which the implementation is taking place. 1.1 The History of Constitution-Making in Kenya The 1963 Constitution which came into force at independence on 12 December 1963 guided Kenya‘s political and socio-economic development for 47 years.During this period it was subjected to 38 amendments. One of the most significant constitutional amendments took place in 1982 making Kenya a de jure one-party state. This state of affairs subsisted for a period of seven years. In 1991, following sustained political pressure to return the country into a multi-party state, section 2A was repealed. The constitutional re-establishment of the multi-party system in 1991 marked the beginning of heightened pressure for constitutional reforms, characterised by intense advocacy and political activities for a period of another seven years. These demands for change culminated in the enactment of the Constitution of Kenya Review Act of 1998. The 1998 Act provided the legal framework for a participatory constitutional-making process, which resulted in the 2005 Draft Constitution that was rejected at a popular referendum held in the same year. However, the outcome of the 2005 referendum was by no means the end of the collective desire for comprehensive constitutional reforms. Following the disputed presidential election in December 2007 and the ensuing post-election violence, two pieces of legislation were enacted to lead Kenyans to a new Constitution. One was the Constitution of Kenya (Amendment) Act 2008. It was enacted on 22 December 2008 and provided a new roadmap for constitutional reforms and established the organs and mechanisms for constitutional review. The second was the Constitution of Kenya Review Act 2008, which was enacted on 29 December 2008. This Act sought to facilitate the completion of the review process. It therefore provided a legal framework for the review mechanisms and established organs charged with the responsibility for facilitating the review process. The 2008 Review Act established a Committee of Experts (COE) which was mandated to finalize its work on a new (harmonised) draft Constitution within twelve months from the date of appointment. On 17 November 2009, the COE published a harmonised draft Constitution. The draft Constitution was approved by the National Assembly and subjected to a referendum conducted by the Interim Independent Electoral Commission (IIEC). The results of the referendum conducted on 4th August 2010 were that the draft constitution received 67% support of the electorate and, in accordance with the enabling law, came into force on 27th August 2010, the date on which it was promulgated by the President. 1.2 The Political Context The promulgation of the Constitution of Kenya 2010 is regarded as the most significant achievement in governance in Kenya since independence in 1963. The difficulties experienced in previous attempts to pass a new Constitution serve to reinforce this view. The promulgation of the Constitution on 27th August 2010 therefore marked the beginning of an era of good governance and political administration. It rekindled the hope for a new social order and economic prosperity guided by national values and principles of governance set out in Article 10 of the Constitution. The Implementation of the Constitition of Kenya 2010 is also key to ensuring political stability in the country. The Constition, it is hoped, marks the end of era for a country which had experienced large-scale election-related violence including the violence in 2007 triggered off by poorly-managed presidential elections. It should be remebrered, however, that the 2007 violence was a climax of many underlying political currents which were enhanced by the referendum of 2005. The promulgation ceremony provided the occasion for the President and the Prime Minister to reiterate the promises made during the referendum campaigns to the effect that the new constitution would stimulate major improvements in the daily lives of ordinary Kenyans. The people of Kenya await the full implementation of the Constitution, 2010, they overwhelmingly voted for. Accordingly, the effective and timely implementation of the new Constitution may be viewed as a debt to the people who trusted the government and supported the enactment of the new Constitution in the referendum. 17th February, 2012 THE KENYA GAZETTE 471 2. THE COMMISSION FOR THE IMPLEMENTATION OF THE CONSTITUTION The establishment of the Commission for the Implementation of the Constitution (CIC) was mandated by Section 5 of the Sixth Schedule to the Constitution. This mandate has been implemented through the enactment of the Commission for the Implementation of the Constitution Act, 2010. The Act confers CIC with legal status, including the right to sue and to be sued and it also provides for the functions, powers, qualifications of, and appointment procedure for the chairperson and members of CIC. CIC, which is made up of a chairperson, 8 members supported by a secretariat, formally came into being on 4th January 2011 when the Chairperson and the Commissioners were sworn in. 2.1 The Mandate and Role of the CIC The mandate of CIC is provided for in section 5 (6) and 15 (2) d of the Sixth Schedule and, in Article 249 (1) of the Constitution. Section 5 (6) provides for the functions of the Commission which are to:  Monitor, facilitate and oversee the development of legislation and administrative procedures required to implement the constitution; Coordinate with the Attorney General and the Kenya Law Reform Commission in preparing for tabling in parliament , the legislation required to implement the constitution; o Report regularly to the Constitutional Implementation Oversight Committee on –progress in the implementation of the constitution: and o any impediments to its implementation; and  Work with each constitutional commission to ensure that the letter and spirit of the constitution is respected Section 15 (2) (d) empowered of Parliament, by legislation, to provide mechanisms that ensure that the CIC can perform its role in monitoring the implementation of the system of devolved government effectively. The CIC is obliged to carry out the above functions with the ultimate aim of achieving the objects of the constitutional commissions and the independent offices stated in Article 249 (1) namely to:- (a) Protect the sovereignty of the people; (b) Secure the observance by all State organs of the democratic values and principles; and (c) Promote constitutionalism. Article 249 also provides that the CIC is to be subject only to the Constitution and the law and, is independent and not subject to direction or control by any person or authority. The functions and objects of the CIC are made specific by the CIC Act 2010. The Act provides greater specificity to the constitutional requirement of regular reporting, requiring that the commission shall report at least once every three months to the Parliamentary Select Committee for the Implementation of the Constitution (CIOC) on the progress in and any impediments to the implementation of the constitution. Further, the Act confers on CIC, as a general matter, the power to exercise such other functions as are provided for by the constitution or any other written law. In this context, the CIC understands its role as that of supervising, on behalf of the people of Kenya, all the implementing government ministries and institutions and any other entities tasked with the responsibility of ensuring the Constitution is implemented at both the national and county levels. As a result, CIC envisages its role as that of ensuring that policies, laws, structures, systems and administrative procedures are developed and applied at all levels of government. These should be consistent with and according to the letter and spirit of the constitution of Kenya. The aim is to work towards achieving a state of a united, peaceful and prosperous Kenya in which all citizens, including leaders, respect the rule of law, uphold national values and live by the Constitution. Key to CIC ensuring that the constitution is implemented effectively is the active participation of the people of Kenya, in a meaningful way, in the processes that will lead to the Constitution‘s implementation. In this regard, CIC will strive to be the guarantor to the general public, that its right to actively participate will be upheld by the concerned implementing government ministries, institutions and other entities. To fruitfully achieve this, CIC considers effective civic education a necessity. CIC will therefore facilitate and monitor civic education carried out by various actors. This may call for CIC assessing the content and provision of civic education provided for by the various civic education providers countrywide. Additionally, to effectively protect the sovereignty of the people, the public would be required to be aware of their rights and responsibilities under the Constitution. Therefore, at the very least, CIC plans to facilitate and/or conduct public awareness or civic education on the role of CIC and the process of implementation, along with the duties and responsibilities of the people of Kenya. Public awareness is necessary for people to ensure State organs and, implementing ministries and institutions observe democratic values and principles and, to promote constitutionalism. To achieve the above, CIC plans and is already overseeing, facilitating and monitoring both the review, design, development and application of policies, laws and administrative procedures by different government ministries and institutions, at both the county and national levels. The attitudes and behaviour of employees of government ministries and institutions as they deliver the services to the people on a daily basis; and the people of Kenya as they receive the services, will be influenced by the new/revised policies, laws and administrative procedures. It is therefore during the phase of application that the observance and realisation of new dispensation will be tested practically. For example, CIC, implementing government ministries and institutions, parliament, the Judiciary and the people should be vigilant as policies, laws and administrative procedures are applied on a daily basis so as to ensure they are not violated. For instance, citizens need to ensure and inform CIC if any appointing authority fails to follow the procedures laid down in the constitution and any law for the appointment of public officers or election of office holders. Or, the national government usurps the roles and responsibilities of the county governments. In this regard it is necessary to point out that the violations may also involve failure to take into account national values and principles of the constitution as well as provisions of chapter six on leadership and integrity. Violations can also occur when, in carrying out their responsibilities, those in delivering services act in contravention of the provisions of the constitution. This can occur for example when a public officer takes action that is not in line with the new/reviewed laws and/or administrative procedures policy or that contradicts a provision in the Constitution including the democratic values and principles. Consequently, CIC must ensure that any state organ or persons employed to serve the people do not undermine the rights and privileges of the people enshrined in the Constitution. When this happens CIC has a duty to intervene by, for example, pointing out any violations of people‘s rights and where necessary, instituting legal proceedings against those that violate the rights. Overall, the fulfilment of the CIC‘s mandate will be guided by the national values of Article 10 and the values (Box 1 below) Box 1 National Principles and Values 1. Kenyans first - the Constitution of Kenya shall be our guide 2. Servant, humble, selfless and reliable officers and leadership 3. High integrity and ethical 4. Respect self, each other, and owners of the constitution - Respect people‘s rights and freedoms and facilitate their fulfilment 5. Do unto others as you would like them do unto you 6. Honest and consistent in all aspects of one‘s life (official and private) 7. Inclusivity and participation of the people 8. Objectivity and impartiality - corruption, nepotism, favouritism and impunity free 9. Equity, fairness and justice 10. Equality before the law and uphold human dignity 11. Transparent and accountable, disciplined, creative and committed to excellence 12. Be living examples of the new dispensation/constitution THE KENYA GAZETTE 17th February, 2012 472 472 Because CIC is mandated to oversee the implementation of the constitution, it is imperative that it plays a coordinating role and has access to information on all initiatives, activities and actors involved in the implementation of the constitution. This is the information CIC will use to monitor the activities and initiatives with the view to ensuring that they contribute to the effective implementation of the constitution, including the requirement that these initiatives are consistent with the letter and spirit of the constitution. In sum, the CIC views its mandate as facilitating actions and processes required to translate the provisions of the Constitution of Kenya, 2010 into reality. 2.2 Strategy for Achieving the Mandate of the CIC To enable CIC to facilitate, monitor and oversee the design, development and application of policies, laws and administrative procedures for the implementation of Constitution can be implemented, CIC has proposed a process to apply to all players. In this regard, the CIC requires each government ministry and institution to: (a) Understand the constitution, what implementing the constitution demands of the ministry and institution, and the minimum standards/benchmarks developed to guide the process of implementing the constitution consistently and in a coordinated manner; (b) Establish the status of, and then review existing and/or develop, where necessary, policies, sessional papers, laws and administrative procedures relating to the ministry or institution‘s functions and to the sector in which they operate. The aim is to ensure that they are in line with the letter and spirit of the Constitution. In the course of this, every ministry and institution should ensure the active participation of the people of Kenya, transparency of the exercise and the application of the national values and principles in the constitution. In the case of policies and administrative procedures – each institution attends to them as per their needs while forwarding the common issues to relevant ministries/institutions for attention. With respect to laws that need amendment or development, including those listed in the fifth Schedule of the Constitution – forward the same to the AG‘s office. In each case, The CIC shall require copies of the same. (c) Develop and applies a change management strategy and plan. Change management is a structured and systematic approach to transforming individuals, groups of people or institutions, usually after a situational analysis. In the Kenyan case the change anticipated was triggered off by the coming in place of a new constitution. The goal of change management should therefore entrench the culture of constitutionalism within the institution and in its delivery of services to the people of Kenya. Specifically, each Ministry/institution needs to understand (i) where it is, (ii) where it wishes to be with respect to the demands of the Constitution, (iii) when, why, and what needs to be done to get there. To successfully manage the change into the new dispensation, each Ministry/institution will need to integrate implementation of the Constitution into its Performance contracts. Each Ministry/institution is also to share its strategy and plan with CIC. (d) Apply the policies, laws and administrative procedures, in the course of their daily activities. While CIC recognises that the people of Kenya will be receiving services as the above reviews/developments take place, CIC anticipates the exclusive provision of services under the new dispensation, once the development of the policies, laws and administrative procedures is completed. CIC will continuously monitor their application in order to ensure that the attitudes and behaviours of the employees of the ministries and institutions during the delivery of services to the people of Kenya are according to the requirements of the Constitution. Any deviation by any arm of government will require CIC to draw the attention of the concerned ministry/institution to the anomaly and where the deviation persists, CIC will inform the public and if the ministry/institution doesn‘t rectify, CIC may seek court interventions. In determining whether any legislation forwarded to CIC for review is consistent with the letter and spirit of the Constitution, CIC will take the following into account:-The extent to which the public participated effectively in generating the policy or legislation;  The consistency of any sessional papers; laws, by-laws and regulations; policies and administrative procedures with the letter and spirit of the constitution;  The adequacy and sufficiency of the sessional papers; laws, by-laws and regulations; policies and administrative procedures in enabling the implementation of the constitution  The impact of the sessional papers; laws, by-laws and regulations; policies and administrative procedures on other laws, institutions and at the two levels of government. CIC, in pursuance of its mandate to facilitate, monitor and oversee the implementation of the constitution, in order to protect the sovereignty of the people; secure the observance by all state organs of the democratic values and principles; and to promote constitutionalism, will from time to time undertake an audit of the different sectoral policies, laws, and administrative processes and structures and their day to day application. The aim will be to determine their compliance with the letter and spirit of the Constitution. 2.3 Sectoral Implementation Strategy To achieve its mandate in a holistic manner, the CIC has developed a process guideline to facilitate effective, monitoring and overseeing of implementation of the Constitution by all government Ministries and Institutions and in all sectors. This process has been discussed by the head of Public Service and the office of the Prime Minister and will be finalised after consultations with all Permanent Secretaries in a meeting organised to take place on 4th April 2011 at the Kenya Institute of Administration. Each commissioner has been assigned a number of government Ministries and institutions to work with in overseeing their implementation of the letter and spirit in the Constitution. The Commission will schedule consultative meetings and forums with each institution and sector to agree on sectoral implementation roadmaps for ensuring full compliance with the Constitution. The institutions will then be encouraged to develop reporting mechanism to ensure they also provide information to CIC and the public at large on the progress and impediments in their implementation of the constitution. The Commission has elected to work with the results based planning and has defined key expected result at the outcome level (Box 2 below). These result areas will assist in guiding the Commission‘s work and providing the basis for accountability to other institution and the public at large. Box 2 Expected Results from CIC’s Work 1. Laws that are compliant with the letter and the spirit of the Constitution. 2. Policies that are compliant with the letter and spirit of the constitution. 3. Institutional frameworks and administrative procedures that are operating in accordance with the values and principles of the constitution. The rights enshrined in the constitution are crosscutting and are expected to be taken into account in implementation activities relating to the three outcome result areas. Taking cognizance of the fact that the commissioners are executive, the CIC has also demarcated its work into 8 technical thematic areas all working towards the three outcomes result areas. Accordingly the Commission‘s activity plan and interim organizational structure are designed to support this structure. The thematic areas are drawn from the different chapters and interest themes in the Constitution. Each thematic area is convened by one commissioner who works with one or more other commissioners. The thematic teams report to the whole CIC for the adoption of their decisions. 17th February, 2012 THE KENYA GAZETTE 473 Below is a brief description of the thematic areas and the teams for each. Devolved Government: Conveners -Prof. Peter Wanyande; Member -Kamotho Waiganjo The devolution thematic area deals with all matters relating to the operationalisation of the constitutional provisions on devolved government as provided for in Chapter 11 of the constitution. This includes the development of new policies legislation and administrative procedures and, in some cases, the review of existing policies, legislation and administrative procedures required to implement the devolved system of government. The thematic area monitors the status and progress made in the development of legislation, policies and administrative procedures required to implement devolution. A list of legislation required for implementing devolution and the timeframes within which the legislation must be passed is given in the Fifth Schedule to the Constitution. The CIC has however identified additional legislation required for the effective implementation of the Constitution. These were not listed in the Fifth Schedule. CIC has also revised the timeframe for the enactment of these pieces of legislation. In this regard the convener of the devolution thematic area works with the Ministry of Local government which is responsible for the initiation and development of policies, legislation and administrative procedures required to implement devolution including the establishment of county governments. However, it should be noted that in a devolved system of government virtually every function of government including those functions that are assigned to the national government, all ministries are required to address those areas of their mandate that will be affected by devolution. In this regard, ministries have to determine the nature of the relationship between national level functions and how the performance of such functions will affect and be affected by devolution. Ministries also have to determine how the two levels of government will work together for effective implementation of devolution. The devolution thematic team also works with non- state actors including civil society organizations to facilitate the implementation of devolution. In view of the fact that devolution is new it is necessary to establish new structures especially at the county government level. The convener of this thematic area is responsible for developing work plans for the thematic area and for advising the Commission on all matters relating to the timely and efficient implementation of devolution. Representation and Legislation: Conveners -Dr Florence Omosa; Member -Catherine Mumma) The objective of the theme is to ensure that the policies, laws, systems, structures and administrative procedures that are developed/reviewed and applied at the national and County levels for elections, within political parties, for national Assembly, Senate and County Assembly affairs, are consistent with and according to the letter and spirit of the Constitution of Kenya, 2010. The eventual aim is to have all Kenyan citizens, including leaders, respect the rule of law, uphold national values and live by the Constitution with the ultimate aim of all Kenyans living in the new dispensation and in united, peaceful and prosperous Kenya. To achieve CIC‘s role in monitoring, facilitating, oversight, and coordinating of implementation in this thematic area the Representation and Legislature theme will work with the relevant sectoral stakeholders to ensure that the electoral system and process, the Independent Electoral and Boundaries Commission (IEBC), Political Parties, the national Assembly, Senate and County Assemblies play their roles and responsibilities as per the letter and spirit of the constitution. Executive and Security: Conveners-Philemon Mwaisaka; Members -Dr. Elizabeth Muli, Dr. Florence Omosa) The thematic area covers Chapter Nine on the Executive and Chapter 14 on the Security Sector. -The Executive Chapter nine on the Executive provides for the functions and powers of the offices of the President, the Deputy President, the cabinet and other offices such as the Attorney General, Director of public prosecutions and their removal. The Executive formulates government policies and priorities. The legislation that requires enactment under this thematic area includes:  Power of Mercy- Article 133  Elections of the President - Articles 136-142  Domestication of International law -Article 2(5) Issues relating to presidential elections shall be considered under the thematic area on Representation of the People to ensure consistency and uniformity in the development of electoral laws. Key tasks with respect to executive include:  Development of legislation in the fifth schedule and other relevant legislation including amendment of existing law where necessary;  Monitoring administrative procedures giving effect to the Constitution and other legislation;  Review of existing administrative procedures and development of new procedures where necessary to ensure that they comply with the letter and spirit of the Constitution and reflect the principle that Executive authority in Kenya derives from the people and must be exercised for their benefit;  Facilitate development of a change strategy for the Executive and cabinet with regard to decision making; and  Monitoring progress of implementation -Security Sector Under Chapter 14, provision is made for the development of instruments and the establishment of institutions in the security sector. The institutions include the national security organs which include the Kenya Defence Forces (KDF), the National intelligence Service (NIS) and the National Police Service (NPS). Key tasks with respect to the security sector include;  The development of legislation in the Fifth Schedule and amendment of relevant existing laws;  Review of and development of administrative procedures to ensure compliance with the Constitution;  Facilitate the development of the National Security Policy; and  Monitoring to ensure that service delivery reflects compliance with the letter and spirit of the Constitution. Bill of Rights: Conveners -Catherine Mumma; Member =Prof. Peter Wanyande, Dr. Elizabeth Muli The Constitution of Kenya 2010 is anchored on the fundamental human rights principles which are reinforced in nearly all the chapters. It has a whole chapter dedicated to the protection of specific civil, political, economic and social rights. In defining human rights as one of the thematic areas, the CIC recognizes that ‗human rights‘ is a crosscutting theme that is applicable to all sectors. It is therefore imperative for ALL implementers in all sectors to appreciate their role in integrating human rights in their legal and policy frameworks. The implementation of human rights will be at two levels. First, there is the obligation by ALL implementers in all the arms of government to integrate the constitutional principles which draw heavily from human rights. These are stipulated in Articles 10, 27, 68,100 and Chapter 13 and many other parts of the Constitution. Second, there is also the need for different sectoral implementers as to implement specific rights that are relevant to their sector. Among these are the rights in chapter 4 of the Constitution, rights expressed in other Articles of the Constitution and Rights stipulated in ratified international human rights treaties and conventions. To ensure effective implementation of human rights the CIC has planned the following broad road map: 1. To undertake a Stakeholders analysis to properly locate the different responsibilities relating to different rights. In this regard a participatory methodology will be employed to determine roles for the different players. 2. To work with relevant Constitutional Stakeholders to identify any priority legislation and notify the relevant stakeholder to THE KENYA GAZETTE 17th February, 2012 474 474 originate the required Bill(s) for processing in the agreed manner (eg. The Citizenship law and the KNHRE Bill).  To develop a clear guidance within the process circular to guide sectoral implementers in undertaking the necessary sectoral review of laws and policies in order to, among othersintegrate the human rights approach in their policies and administrative/operational practices andintegrate provisions of the chapter on the Bill of rights and international human rights instruments into relevant sectoral laws and policies. 3. To organise capacity building forums on the human rights and the rights approach for CIC commissioners and staff and different implementing stakeholders. This will include capacity on the following principles  Affirmative action for equality and equity (gender, for youth, people with disabilities (PWDs) minorities and marginalised groups);  Equitable sharing of national and local resources throughout Kenya;  Equality before the law;  Participation of the people in governance;  Right of communities to manage their own affairs and to further their development;  Transparency and accountability, including public participation in financial matters;  involvement of the people in the process of policy making;  accountability for administrative acts; and  Right to information. There will also be need for capacity building on the following key human right concepts (among others) that will need to be understood including.  The concept of progressive realisation of socio-economic rights in Article 43;  The concept of social protection;  The concept of inclusivity particularly with respect to the rights of persons with disability;  The definition of minorities; and  The principle of derogation from human rights (particularly by the executive and security agents). Public Finance: Conveners -Kamotho Waiganjo; Members -Dr. Florence Omosa and Catherine Mumma) The Constitution fundamentally transforms the fiscal architecture under which Kenya will be governed in the new constitutional order. The thematic area on public finance is about guiding and coordinating the constitutional implementation activities relating to matters of Public Finance. The Public Finance Chapter deals with issues of public finance management both at the national level and the county level making the process of public finance management more participatory, and equitable than under the previous legal framework. In particular the public finance regime provided under the Constitution:  Requires the setting of standards to achieve the progressive realization of economic and social rights.  Establishes the principles that will determine the sharing of resources between the two levels of government, including openness and accountability, including public participation in financial matters; equity and fairness; the need to make special arrangements for marginalized groups; andprudent management of national resources. Makes the process of the borrowing by the national governments more transparent.  Separates the offices of Controller of Budget from that of the Auditor General so as to imbue effectiveness and accountability.  Provides for the manner in which the national government must support the county governments whilst providing mechanisms for efficient utilization of resources at the devolved level. There is need to enact legislation that covers the above issues and to review current policy, legislation and processes so that they respect and are consistent with the values of the constitution and the principles of public finance management outlined in the constitution. It is also important that cognizance is taken of the need to progressively attain socio economic rights under Article 43. This will include the mapping of the current status with respect to the distribution of development resources and the setting of standards and guidelines to facilitate the state to demonstrate progression and accountability in the delivery of these rights. National and county governments must also establish compliant administrative systems and processes that respect and enforce the new fiscal management environment. These should be in place long before the general elections considering that they will apply to the devolved governments from the day they are operational. Without this, there could be disruptions in the public finance sector and possible losses or mismanagement of public funds. Notwithstanding that the constitution in Schedule 5 requires legislation under this Chapter to be concluded within more than one year, it is nevertheless essential that all legislation on this Chapter and any legislation dealing with fiscal management in other related chapters (e.g. on devolution) be fast tracked and completed within the next six months and at any rate before the next general elections. The role of CIC in this process is to oversee the development of legislation and administrative procedures that reflect the letter and spirit of the constitution. It is also to ensure that in the development of such legislation and administrative procedures, a participatory approach is undertaken. To this end CIC will be liaising with the ministry of finance, as the key driver in public finance management reforms to ensure broad stakeholder involvement in the development of the legislation and the required procedures. Public Service and Leadership: Conveners -Dr. Elizabeth Muli; Members -Philemon Mwaisaka) The thematic area covers Chapters Six and 13 of the Constitution and matters related thereto. The public service cuts across the entire government at both national and county levels. An efficient and effective public service is vital to the development of the country‘s economy. Transparent operations that are free of corruption contribute to the good delivery of public services. Implementation of Chapters Six on leadership and thirteen on the public service will ensure transparency, accountability, effectiveness and efficiency in the delivery of quality public services. CIC will be working with players in the public service to ensure that the guiding principles of leadership and integrity as set out in Chapter Six of the Constitution and the values and principles of public service are guiding the conduct of business in the public sector. The CIC notes that the success in the implementation of the Constitution will be demonstrated by the commitment of the public service to the adoption of the culture of constitutionalism. Laws relating to the following will be developed or reviewed where they already exist.  Ethics and Anti-Corruption Commission -Article 79  Legislation on leadership and integrity -Article 80  Legislation on the Values and Principles of the Public service –Article 232  Staffing of county governments -Article 235  Public service Commission Bill -Article 234  Teacher Service Commission Bill -Article 237 Land and Environment: Conveners -Ibrahim Ali; Members -Imana Laibuta) The Land and Environment thematic area is wide and covers the Ministry of Land, Ministry of Environment and Mineral Resources, Ministry of Forestry and Wildlife, Ministry of Water and Irrigation, 17th February, 2012 THE KENYA GAZETTE 475 Ministry of Tourism, Ministry of Northern and Arid Lands, Ministry of Regional Development and the Ministry of Livestock Development. The latter Ministries are by and large focused on the rangelands of Kenya and therefore have great impact on the ecology of the area. The CIC has written to many of these ministries to advice the it on their plans and programmes that respond to the Constitution. The CIC has set in place tentative plans to engage with them and we await a response from them to date. This is not in any way a delay because legislation in this thematic area are not among the priority legislation and therefore have time to continue pursuing engagement with these ministries. The CIC has also engaged with the Network of Environment CSOs and some low level consultations done already. Following these consultations a training workshop for selected Environment CSOs with support from WWF is now scheduled for April 2011. Judiciary and Constitutional Commissions: Conveners -Imana Laibuta; Member -Ibrahim Ali This thematic area, the Judiciary and Constitutional Commissions, is concerned with the constitutional establishment and/or institutional reform of the judiciary and constitutional commissions as respectively provided in chapters 10 and 15 of the Constitution of Kenya 2010. It addresses such matters as the enactment and/or amendment of legislation, policy development or review, and formulation of administrative processes required to ensure effective and timely implementation of the Constitution in that regard. Reforms of the legal and institutional frameworks of the judiciary and constitutional commissions invariably involve the process of appointment to various constitutional and other public offices, which in turn require adherence to (a) the national values and principles set out in Article 10; (b) the principles of justice set out in Article 159; and (c) in accordance with the guiding principles of leadership and integrity set out in Article 73(2) of the Constitution. The thematic team works with sectoral stakeholders, including State and non-state organs, with the support of the Secretariat and technical advisors to effectively deliver on the Cic‘s mandate. The team convener is responsible for timely delivery of advice and reports to the Commission in respect of the responsibilities set out in periodic work plans prepared and approved by the Commission. The convener is also responsible for building and sustaining consensus among respective sectoral stakeholders. 3. PROGRESS IN THE IMPLEMENTATION OF THE CONSTITUTION The CIC was to have been established 90 days after the promulgation of the Constitution, meaning by 27th November 2010. However, as already noted the Commissioners were only sworn in on 4th January 2011. Despite the delay, the Commission is making good progress in delivering on its mandate. This section reports on the progress made on implementation during the quarter of January to March, 2011. It also highlights the key activities the Commission has planned to work on and achieve during the April – June 2011 quarter. In assessing progress, the following should be borne in mind:  Full implementation of the Constitution goes beyond the enactment of legislation and involves the effective development and application of policies and administrative procedures which ensure that the people of Kenya get the services they are entitled to and in a manner provided for under the Constitution. This means that even after a bill is enacted. CIC shall continue to monitor, facilitate and oversee implementation thereafter, in compliance with Article 249 of the Constitution.  The progress and effectiveness of the work of CIC is inevitably impacted on by the capacity, progress and effectiveness of its constitutional partners, the office of the Attorney General and the KLRC as well as that of implementing agencies such as line ministries and commissions plus other arms of government. In the January - March 2011 quarter, a number of achievements were recorded in relation to legislation, review of administrative procedures, Chapter 15 Commissions, staffing at the CIC, among others. A number of legislation were enacted during the period. This included the Judicial Service Act and the Vetting of Judges and Magistrates Act. With respect to review of administrative procedures Police Recruitment Guidelines were finalised. With regard to Chapter 15 Commissions and related matters, a number of activities were undertaken including the development of the Rapid Action Plan and the work related to the nominations to constitutional offices. During this period, the CIC also developed a staff recruitment policy and recruited key personnel through a competitive process. The budget and work plans for the CIC were also finalised during this period. Other achievements during this period include:  Review and publishing of the bills as per schedule.  Constitutional Implementation Conference and County Implementation Forums to be held by June 2011.  County Inputs on Electoral, police and legislative laws by June 2011.  Competitive recruitment of key staff by June 2011.  Establish the financial systems necessary to support good management of Commission funds.  Engage with Parliamentary Committees on published Bills. The full details of the specific achievement are set out in Annex I to this report. As already noted, the progress of implementation may be impacted by the fact that CIC does not solely bear responsibility of full implementation of the Constitution. To the extent that other actors are involved in the implementation process, it is difficult to be specific and certain of actual time bound deliverables. Through the use of a case study on one of the bills with which the CIC has been involved in (the Vetting of Judges and Magistrates Bill) the dynamics of the relationship between the CIC and other actors and how this impacts on implementation can be demonstrated (Box 3). Box 3 Case Study on CIC’s Engagement on Constitutional Implementation Legislation Vetting of Judges and Magistrates The Vetting of Judges and Magistrates Bill was initially published on 14th September 2010 and was then tabled before the National Assembly on 30th November 2010. The CIC did not have opportunity to review the Bill before it was published. At the request of the CIC the Minister for Justice withdrew the Bill to allow the CIC to review it. Thereafter the Commission discussed the Bill internally and with the Attorney General, the Minister for Justice National Cohesion and Constitutional Affairs and the KLRC. It also undertook a series of consultations on the content of the Bill. The Commission had formed the impression that the views held by stakeholders regarding this particular bill were very strong and that in particular there was concern in the judiciary that the vetting process should be managed in a manner that did not lead to the witch-hunting of members of the judiciary. Following these consultations, a number of amendments were agreed on. The CIC agreed with the Attorney General that these would be incorporated in a new Bill to be prepared by his office. However, when the Bill was re-published the CIC observed that not all the amendments agreed to during the stakeholders‘ forums had been incorporated in the re-published version of the Bill. First, a clause whose exclusion had been requested by the CIC was retained. The clause reads as follows: “Nothing in this section shall be construed as preventing the President, in consultation with the Prime Minister, from nominating and forwarding names, other than those submitted by the Public Service Commission to the National Assembly for consideration and approval.” The CIC wrote to the Committee on the Administration of Justice and Legal Affairs, through which it took up this matter and reiterating its recognition of the need to involve the Executive in the process of nominating and appointing members to institutions, including under the Vetting Board. The CIC noted that the Selection Committee, also provided for under the Bill, was largely comprised of representatives of the Executive to allow the Executive to play its role in recommending persons to serve in the Board, whilst at the same time facilitating a process that respects the national values in Article 10 and the principles of leadership enumerated in Article 73(2(a) of the constitution including THE KENYA GAZETTE 17th February, 2012 476 476 participation of the people and selection on the basis of competence and suitability. Secondly, the CIC took issue with clause 12 (5) and (6) of the Bill which had omitted the requirement for consultation with the Prime Minister during the process of filling a vacancy in the Vetting Board. Consultation was required by the constitution in section 29 of the Sixth Schedule. Eventually, the CIC‘s position on these matters was upheld. The Bill went through the second reading on 8th February 2011 and was assented to by the President on 22 March 2011. The CIC has recognised the need to prioritize the activities for the implementation of the Constitution to meet various national needs. This need was reflected by the drafters of the Constitution who provided a time bound guide on the urgently required implementation laws in the Fifth Schedule to the Constitution. The timelines in the Fifth schedule have not been strictly adhered to for various reasons and as a result there has been a delay in moving on some of the activities including: the establishment of the CIC itself, the formation of the Commission on Revenue allocation (CRA) the appointment of the Chief Justice and the finalisation of the boundaries report. . The delays can be mitigated if all stakeholders prioritize the identified urgent tasks and work in a collaborative manner to ensure that further delays are not occasioned. It is also important that all the arms of government invest in ensuring that the urgent laws and systems are put in place. In the view of the CIC the current priorities are as follows:  Laws, policies, institutional systems and operational regulations and procedures required for conducting the next general elections.  Laws and regulations relating to institutions that are supportive of the electoral process e.g. those relating to the security sector, registration of persons and citizenship.  Laws and policies that related to the organisation of governance structures and systems at the county levels.  Laws relating to the management of Public finance.  Laws , regulations and systems relating to the establishment of a fully functional Judiciary. The conduct of elections in 2012 presumes a reformed judiciary in which the country will have the confidence to entrust electoral disputes. Secondly, since the country must, in addition to parliamentary elections, also hold elections in relation to county assemblies, the wards for those assemblies must be determined. The determination of the wards involves the provisions on devolution. Also the security sector will have a big role to play in the elections. Reforms in this sector are a priority if the country is to have the confidence that free and fair elections are possible. Though the delays have occasioned the adjustment of timelines, it has, however, not resulted in the extension of time beyond that which has been provided in the schedule. If anything, the review has only resulted in the re-organisation of time, most of which has been shortened. Further, in the view of the CIC, whereas the Fifth Schedule contains a good list of legislation that need to be enacted to give effect to the new Constitution, this list is not complete. Consequently, in addition to the legislation identified in the in the Fifth Schedule, there are other laws which would need to be enacted as soon as possible. The CIC has therefore established a more comprehensive list of the laws that should be in place by the end of August 2011. The list is contained in Annex II to this report. 3.1 Public Participation and Stakeholder Engagement A key part of the role of the CIC is to ensure public participation in the constitutional implementation process. The initial discussions at the CIC clarified the constitutional standard regarding public participation in public processes. In this regard, the CIC recognises that public participation has been elevated to a national principle under Article 10 of the Constitution and in several other places in the constitution. There is also a duty, direct or implied, that public participation be incorporated in the public processes. The implementation process is such a public process and the CIC made the decision from the beginning that it would have to put in place mechanisms for giving effect to this principle in its processes. The CIC has therefore elaborated a policy on public participation. It has therefore become standard practice to invite submissions by the public on matters to do with policies, legislation and administrative procedures, in any language using postal and electronic means. The public can also participate by expressing their views through the electronic and print media, attending and participating in workshops organized by government ministries and other relevant institutions involved in initiating and developing the relevant policies, legislation and administrative procedures required for the implementation of the constitution. In order to ensure such public participation, the CIC has also advised the public on the steps to be followed to make their participation in the implementation of the Constitution effective. The steps include the following:  Members of the public, in their individual or collective capacities, should familiarize themselves with the entire Constitution.  Members of the public, in their individual or collective capacities, are encouraged to identify aspects of any existing policies, legislation and administrative procedures which are not in line with the letter and spirit of the Constitution and submit their views on any of these aspects to the relevant line ministry or institution to facilitate the necessary reviews and development by the ministry or institution. The recommendations may be copied to CIC for information purposes.  Every member of the public should be vigilant and ensure that government ministries and institutions comply with the Constitution and with the new/revised policies, laws and administrative procedures. In making any recommendations for the review/development of policy, administrative procedures and legislation, the public should take into account the fact that the constitution requires government ministries and institutions to involve all relevant actors including the public in the process. In making proposals for the review of existing sectoral /issue policies, administrative procedures and legislation, and in determining the necessity of new laws, institutional policies and structures, and, administrative procedures, the public should take into account, among others:  The provisions relating to human rights in the Constitution and, in particular, the need to incorporate the requirement for progressive implementation of the socio-economic rights under Article 43.  The values and principles articulated in Articles 10 and 232 and Chapter 6 (Leadership and integrity) of the Constitution.  The principles of fairness, prudence, clarity, and the need for fiscal responsibility in the management of public resources articulated in Chapter 12 of the Constitution As part of its engagement with the public and stakeholders, the CIC also held a three day consultation retreat at Naivasha from at which the Commissioners were inducted on the operational relationship between the Commission, the Ministry of Justice National Cohesion and Constitutional Affairs and other stakeholders. The purpose of these consultations was manifold. First, it was to enable the CIC share its opinion on its mandate with stakeholders. Second, it was to enable the stakeholders and the CIC to agree on the modalities of working together in the process of implementing the Constitution. Third, the consultations were intended to get the stakeholders own the process. Fourth, consultations were an important vehicle for building trust between the stakeholders and the CIC. The meeting with civil society aimed at urging civil society to serve as a bridge for reaching out to the larger public and to incorporate the expectations of this sector of society in its preliminary planning. A second tier of meetings that deserve specific mention is those that the CIC has held with the top political leadership of the country. The CIC met with His Excellency the President, Mwai Kibaki and the Right Honourable the Prime Minister, Raila Odinga, on 7th January 2010. At one level, the meeting was a courtesy call. However, the CIC also used the meeting to seek the support of the President and the Prime Minister for the work of the Commission. Both in private and through a statement that they allowed to be released to the press later, the President and the Prime Minister expressed support for the work of 17th February, 2012 THE KENYA GAZETTE 477 the CIC and pledged that resources necessary for the discharge of its mandate would be provided. Subsequent to this meeting the two principals have availed the CIC opportunities to consult with them on various issues relating to the implementation of the Constitution. There have also been a series of meetings with development partners. The purpose of the consultation with development partners was mainly to brief the partners on the approach that the CIC intended to take in the discharge of its mandate and to explore ways through which the two would collaborate in the implementation of the Constitution. The full list of the various consultations and meeting that the CIC has held with different stakeholders can be found in Annex III to this report. The Commission will continue to hold consultations with stakeholders as need arise. 3.2 CIC’s Administrative Set-up and Functioning Ensuring the efficient and orderly functioning of the CIC is a key part of ensuring that effective implementation of the Constitution. Consequently, it is important to highlight the progress that has been made in setting up administrative systems, policies and regulations as well as other matters such as on staffing to facilitate the work of the CIC. The CIC Commissioners, as already noted, were sworn in on 4th January 2011. They moved into their allocated offices at Delta House in Westlands and began work immediately. Initial discussion by the Commissioners identified a number of issues relating to the setting up and functioning of the Commission that need to be addressed on a priority basis. The work of the Commission began, first, with addressing administrative issues, including issues to do with staffing, financial arrangements, procurement plans, communication strategy and outreach activities. The second category of the initial internal discussions related to technical or programmatic issues. Here the discussions mainly focused on the mandate of the Commission. The Commissioners interpreted their mandate with a view to having a shared understanding of their mandate. As part of this discussion, the CIC assembled relevant literature and background documents that will be used in the course of what will be a continuous interpretation of the mandate of the Commission. The CIC also spent a considerable amount of time identifying relevant stakeholders whose contribution to the work of the Commission would be invaluable and consulting with them. The classification of stakeholders and the discussions between them and the Commission is reported in some detail in section 3.1 above and in Annex III to this report. The specific activities relating to the establishment of a functioning secretariat outlined above are described in greater detail below. 3.2.1 Office Space The Commission was lucky because it did not have to struggle for office space. This is because the COE appointed under the Constitution of Kenya Review Act, and whose work led to the enactment of the new Constitution, was disbanded at the end of its successful mandate. The Committee left behind a fully furnished and operational office, which CIC inherited. The CIC was therefore saved the trouble, which can be considerable, of finding and equipping an office from scratch. The Commission is grateful to the Ministry of Justice, National Cohesion and Constitutional Affairs for facilitating the smooth acquisition, by the Commission, of office space. This has enabled CIC to make a relatively easy start, allowing it to concentrate on its core mandate from the start. 3.2.2 Financial Arrangements The CIC spent significant time, at the start, discussing financial matters that would affect the operations of the Commission. The discussions were informed by the fact that the Commission was established in January 2011, long after the presentation to the National Assembly of the financial estimates for the year 2010/2011. The CIC had understandably missed out on the financial estimates because of the unfavourable time of its establishment. To facilitate the work of the Commission under the circumstances, Treasury authorised the Ministry of Justice, National Cohesion and Constitutional Affairs to spend up to Ksh 156 million on account of the Commission. Treasury later revised this figure to Ksh 292 million as the budget for the Commission between January and June 2011. It is expected that financial or budgetary provision will be made for the CIC in the estimates for the year 2011/2012. In practice, the arrangements authorised by Treasury have worked reasonably well for the Commission so far, and the Ministry of Justice, National Cohesion and Constitutional affairs has discharged its financial obligations to the Commission efficiently. However, there can be no substitute for complete financial autonomy, which the Commission hopes to have by June/July 2011. 3.2.3 Staffing The CIC also devoted time, from the start, on its staffing needs and ways in which these might be addressed. In particular, the Commission sought to put in place a basic staff compliment to form part of its initial team. The Commission was happy that the Ministry of Justice, National Cohesion and Constitutional Affairs authorised it to hire temporary staff that would supply the immediate needs of the Commission. The Ministry has also deployed staff to assist the Commission and support the process of its establishment. These staff compliment includes an acting Chief Executive Officer, deployed from the Public Service Commission (PSC). The CIC also hired consultants to assist with the discharge of specified tasks. For example, a media consultant was hired under this arrangement. The Commission is grateful for assistance that it has received from the DFID and SUNNY KENYA which has enabled it to hire the two consultants. The CIC, however, decided that there would need to be greater consultations to determine the rest of the staffing needs. This would allow most of the staff posts to be filled on a competitive basis. This means that the Commission will advertise these positions. To make a determination of its actual staffing needs, the Commission has been discussing its establishment plan. A draft of this has been developed and approved by the Commission. Seeking the approval of Treasury for the plan will be the next level of engagement. Thereafter, and subject to funding, the Commission will commence the process of filling the positions. 3.2.4 Procurement Plan Under the direction of the Commissioners, a procurement plan for the CIC has been developed and discussed. The plan encompasses both the administrative procurement, and programmatic procurement. The plan has been approved by the Commission and now awaits funding. 3.2.5 Communications Strategy Analyses of what it would take to give effect to the principle of public participation indicated that the public can only participate if it is provided with information to understand what is going on. With a view to doing so, the CIC made a decision at the onset that it would create a capacity to generate relevant information concerning its work and that it would have to disseminate this information to the public in an organized manner. Also the Commission would need to place itself in a position where it would receive, analyze and respond to information coming from the public and which was deemed to be important for its work. The upshot of this was that the CIC decided to establish a communications function within its set up, as one of the core capacities without which its work would be ineffective. With help from the DfID, the CIC hired, on an interim basis, a media relations consultant to oversee the development of communication strategy and to manage the communication function on its behalf in the interim. To manage the public communication function the CIC discussed and agreed on a code of practice as to how this function would be managed. The Chair of the Commission was designated the official spokesperson of the CIC although other members of the Commission may, with the concurrence of the Commission, or on the delegation of the Chair, also exercise this function on behalf of the Commission. THE KENYA GAZETTE 17th February, 2012 478 478 During the period covered by this report, the Commission has from time to time communicated with the public. This has been done through media briefings, press conferences, and the participation by the Chairman in talk shows on television and radio. The CIC also held early consultations with members of the media, through their representative organizations, such as the Kenya Editors‘ Guild, the Media Owners Association and the Parliamentary Reports Association. The objectives of the consultations were to establish a positive relationship with the media, in the hope that this would enable the CIC to discharge its functions more effectively; to provide media practitioners with opportunity to state the expectations that they had towards the Commission; and to provide a briefing to the media on the work of the Commission thus far. 4. EFFECTIVE IMPLEMENTATION OF THE CONSTITUTION: KEY CHALLENGES AND POTENTIAL IMPEDIMENTS The Commissioners did not anticipate significant impediments to their work when they took office. The availability of Office space immediately after being sworn in allowed the Commissioners to immediately settle down for business. The Ministry of Justice, National Cohesion and Constitutional Affairs officials, led by the Minister and the Permanent Secretary welcomed the Commissioners to the Offices at Delta House and assured the Commission of their full and total support. Such support and encouragement was further received from the President and the Prime Minister when the CIC met them at the Office of President in the same week. Though the CIC did not anticipate impediments to the implementation of the constitution, it nevertheless recognized that like any other life endeavour, challenges would arise in the course of its work. These challenges were initially not specific and only began to crystallise as work unfolded and progressed. A number of challenges, which are not necessarily impediments, have been encountered by the CIC. The challenges can broadly be classified into the following three categories.  Institutional and organizational challenges.  Political challenges.  Technical challenges. 4.1 Institutional and Organizational Challenges Despite the immediate provision of office space, building the Commission into an institution and an organization is still on-going. The CIC has just developed its organizational structure and is soon to begin building its Human Resource capacity needed to support its administrative and technical work. The expectations of the public from the Commission are high and this in itself is a challenge. The Commission will therefore have to assemble high calibre staff if the public‘s expectations are to be realistically addressed. The CIC recognizes that funding to sufficiently cover for its programmes and activities will be a challenge. Government funding can be stretched and despite the good will and intentions, this will many a times, not meets the Commission‘s needs fully. The Commission will therefore need to work closely with the Government to fundraise with the development partners to augment government funding. There are a number of transitional challenges inherent in the implementation of the new constitution. Laws exist which had their validity in the old constitution, and which have yet to be replaced, even if they are now in contravention of the new constitution. For example, the CIC has been informed that it cannot communicate with the press because it is barred by existing government regulations which prohibit public officials from speaking with the media without authorisation. There is uncertainty whether the CIC is subject to the control of the Public Service Commission (PSC). Although the Commissioners were appointed in January 2011 and have been in office for a period of three months, their terms of service have not been clarified or dealt with. It remains unclear when and how these will be dealt with. 4.2 Political Challenges The political situation in the country has not been ideal for the implementation of the new constitution. The existence of the Grand Coalition Government has been a challenge of itself, as it delays consultations that the CIC has to make with the government. The large number of ministries, itself a consequence of the coalition government, increases the sites of engagement with which the CIC must deal, and could slow the pace of implementation. Further, there have been some disharmony within the government and this has had an effect on perceptions towards the CIC. At different times, the actions of the Commission, however well meaning, are regarded as aimed at, or having the effect of, supporting a given political preference. In these circumstances, the CIC has been called upon to pledge its independence and non-partisanship in ways that it would not have had to do if the political situation was a little more trusting. The Commission would urge both the President and the Prime Minister to ensure that, in the way in which they exercise leadership in this country, the kind of difficulties witnessed in the country recently are not repeated as this has direct implications for the implementation of the constitution. The CIC enjoys much the same position in relation to the central government, as that occupied by other independent commissions, which are not subject to the control of any person or authority. The CIC is also in the same position as regards autonomy, as the Judiciary, for example. In much the same way as public officials, however high, cannot dictate to the judiciary what to do in the discharge of its functions, it is not possible for any public official to dictate to the Commission on what to do with its mandate. The CIC has a duty to work with other public agencies, and cannot discharge its mandate without doing so. However, in its engagements with those agencies, the Commission has to ensure that it maintains its independence. A chain exists in the relationships between the CIC and other public offices, mainly the office of the Attorney General and the KLRC. There is yet to emerge a coordinated approach between these offices in the discharge of their mandates as they relate to the implementation of the Constitution. For example, the Attorney General appears to hold the view that all Bills to the Commission come from his office, and that Bills received from other sources are not properly before the Commission. Given the slow turnaround between the Attorney General and the KLRC, the CIC has, in certain cases, taken upon bills that were handed over outside the formal chain, so as to save on public time. Ways of improving these relationships will save public time, and must be developed in the coming days. The CIC feels that there is a common but erroneous perception that the implementation of the Constitution is only about drafting of laws. Whereas there is a large amount of drafting involved in the implementation of the Constitution, this also involves compliance with aspects of the Constitution not requiring addition legislation to come into force. Also, the Constitution requires the assumption on the part of public officials and the Kenyan public, of new attitudes that will lead to a national culture that is supportive of the values of the Constitution. These are matters about which there can be no legislation and which the Commission has to mobilize Kenyans on how to collectively address this challenge. The CIC foresees that the implementation of the Constitution will lead to changes in the way in which the public service is organised, and also the manner in which public service is delivered. The fear of change is expected to lead to turf wars in the political arena and this could impede the implementation of the Constitution. 4.3 Technical Challenges A key mandate of the CIC is to monitor, facilitate and oversee the development of legislation and administrative procedures required to implement the Constitution. It fortunately continues to undertake this mandate by heavily drawing on the expertise and experience of the Commissioners and investing heavily on needed time and the extra energy from them. No Bill is anchored in a vacuum and by necessity has social, economic and even political implications. Any Bill has therefore been shaped by history and the evolution of society. A complete understanding and consequently examination of a bill requires extensive background reading and research. Handling two or three Bills at a time has been exhausting and terribly demanding on the part of the Commissioners. The CIC is now nearing the recruitment of staff and hopefully technical staff to support the Commission in this regard will soon be realized. 17th February, 2012 THE KENYA GAZETTE 479 The office of the Attorney General and the KLRC are both important counterparts of the CIC, as both are involved in the generation of draft legislation. Their capacities also require to be strengthened to cope with the increased demand for drafting and legislative work. Annex I Summary of Key Achievements in the January – March 2011 Quarter Outcome Status Start Date Planned Date of Completion Actual Date of Completion Status or Comments Legislation Judicial Service Act January 2011 August 2011 March 22, 2011 Shall oversee the application of the law and compliance of administrative procedures with the Constitution Vetting of Judges and Magistrates Act January 2011 August 2011 March 22, 2011 Judiciary Fund January 2011 August 2011 March 22, 2011 Review of Administrative Procedures Police Recruitment Guidelines March 2011 March 2011 March 2011 Awaiting final draft of guidelines from the Police CIC Process Circular for Implementing Agencies Draft Circular on Process Notice to the public ready awaiting the conclusion of the circular February 2011 March 2011 February 2011 April 2011 March 2011 N/A Approval from AG, KLRC received. Awaiting sharing and discussing with Permanent Secretaries of Ministries Recruitment of CIC Staff Development of staff recruitment policy, including a CIC organogram and job descriptions Competitive recruitment of key personnel January 2011 March 2011 March 2011 March 2011 March 2011 June 2011 March 2011 April 2011 N/A Awaiting further action from MOJNCA Awaiting procurement of the advertisements Awaiting for advertisements to be circulated in the press by MOJNCA Deployed Staff January 2011 February 2011 February 2011 Staff have been deployed pending competitive recruitment Budget for 2011-2012 Preparation of Budget and Work Plans (Thematic and CIC) January 2011 March 2011 March 2011 Submitted on March 23, 2011 Chapter 15 Commissions Engagement with Commissions January 2011 March 2011 April 2011 Awaiting establishment of some commissions Rapid Action Plan January-June, 2011 Rapid action work plan developed February 2011 February 2011 February 2011 Implementation of the plan is ongoing Article 249 Functions(protect the sovereignty of the people, secure observance by state organs of democratic values and principles and promote constitutionalism CIC‘s position on Nominations to Constitutional Offices January 2011 February 2011 February 2011 Nominations were withdrawn and post of Chief Justice and DPP has been advertised. Case filed in court seeking advisory opinion from the Court Police recruitment – CIC urged the police service to review their recruitment procedures so that they are in line with the letter and spirit of the constitution, before recruitment Ministry of Public works – Proposed County Assemblies, offices and governors‘ residences Standard March 23, 2011 February 2011 March 2011 June 2011 Proceedings are ongoing Annex II Legislative Priorities for the period ending 30th August 2011 Article Legislation CIC Proposed Deadline Schedule 5 End Date Status to date Remarks Priority one Representation & Legislature: Art 88 IEBC Mid-March 2011 26/8/11 Draft obtained from KLRC. Bill should be published THE KENYA GAZETTE 17th February, 2012 480 480 Article Legislation CIC Proposed Deadline Schedule 5 End Date Status to date Remarks Internal discussions and stakeholder completed. Final draft presented to AG on the 21st March 2011 and passed by April 15th to allow IEBC to be set up Arts82-90, 93- 105,136-142, Elections related legislation including quotas for women and marginalized groups in elective offices End of July 2011 26/8/11 Awaiting draft bill from KLRC. Expected by 8th April Bill urgent and should be concluded by early May to enable IEBC commence election planning Art. 127 Parliamentary Service Commission End of July 2011 26/8/11 Awaiting draft bill from Parliament and KLRC Arts 91-92 Political parties End of June 2011 26/8/11 Draft bill received from KLRC. Undergoing internal and stakeholder review Bill urgent and should be concluded by early May to enable IEBC commence election planning Judiciary: Art 163 Supreme Court End of March 2011 Draft bill received from KLRC. Undergoing internal review and stakeholder consultation This bill is urgent so as to conclude the judicial reforms in time for the general elections Art 162 System of Courts End of June 2011 Awaiting Bill from KLRC and implementing ministry Public Finance: Art 201-214 Public Finance Management legislation including the budget process, the role of Treasury and matters of fiscal decentralization End of June 2011 26/8/11 Policy on proposed public finance management law received from Treasury. Draft Bill under preparation by Treasury. Consultations ongoing and stakeholder forum planned for 8th April 2011 There is urgent need to synchronise the Treasury team and devolution taskforce on fiscal decentralization issues and have PFM and related financing bills ready by end of June 2011 Art 215 Commission for Revenue Allocation End of March 2011 31/3/11 Draft under discussion by CRA. Bill should be enacted urgently since CRA is now in operation Art 230 Salaries and Remuneration Commission End of March 2011 31/3/11 Draft bill obtained from KLRC. Internal discussions and stakeholder completed. Final draft presented to AG on the 21st March 2011 Art 228 and Auditor General & Controller of Budget End of March 2011 31/3/11 Draft bill on appointments to the two offices obtained from KLRC. Internal discussions and stakeholder completed. Final draft presented to AG on the 21st March 2011. Bill on substantive functions and operationalisation of two offices to be prepared after PFM law. Bill on the appointments of independent offices should be published by end of April to allow appointment of officers. Substantive law on functions and operational issues should be finalized by August when the current Auditor General shall leave office. Public Service & Leadership: Art. 79 Ethics and anti-corruption commission End of April 2011 26/8/11 Awaiting bill from KLRC and KACC Art. 74-80 Legislation on leadership, foreign bank accounts for state officers, and disciplinary procedures in the public service End of April 2011 26/8/11 Awaiting bill from KLRC and KACC Legislation urgent to facilitate process of vetting state officers Priority Two Public Service & Leadership: Art 233 Public Service Commission End of July 2011 26/8/11 Draft Bill received from PSC. Undergoing internal review and discussions with KLRC and AG Bill urgent in view of the critical role of PSC in ongoing public service reform. Bill of Rights & Citizenship: Art. 11,12,14,15 & Citizenship End of July 2011 26/8/11 Awaiting task force report and draft bill Bill urgent in view of citizenship implications on elections Art 22 (3) Rules to enforce human rights End of July 2011 26/8/11 Rules awaiting appointment of Chief Justice Art 24 (5) Limitation of rights to disciplined forces End of July 2011 26/8/11 Draft bill on police including proposals on limitation received. Internal review completed. Undergoing stakeholder 17th February, 2012 THE KENYA GAZETTE 481 Article Legislation CIC Proposed Deadline Schedule 5 End Date Status to date Remarks consultations Art 59 (4) and (5) Kenya National Human Rights and Equality Commission End of July 2011 26/8/11 Undergoing discussions with both commissions to build consensus on number and nature of ultimate commission (s). Security Sector: 26/8/11 Art. 238 Principles of national security: Amendment of existing rules and regulations to integrate the principles into the operations of the national security organs. End of June 2011 26/8/11 Draft Bills on security sector received. Internal review completed. Undergoing stakeholder consultations Art. 240, 241 National Security Council End of June 2011 26/8/11 Awaiting Bill from KLRC and implementing ministry Art. 242 National Intelligence Service End of July 2011 26/8/11 Awaiting Bill from KLRC and implementing ministry Art 243 National Police Service and related Bills End of July 2011 26/8/11 Draft Bills on National Police Service, Independent Police Oversight Authority Bill and Private Security providers Bill received from KLRC. Internal review completed. Undergoing stakeholder consultations CIC fast tracking the Laws on security sector reforms in view of their critical impact on elections Devolution: Art 99, 177- County Assembly legislation including qualifications for election, gender balance and diversity and support for county governments End of August 2011 26/8/11 Awaiting task force report and draft bill from KLRC and implementing ministry Laws of devolution urgent in view of need to prepare structures and systems for elections in good time. Art 189(4) Settlement of intergovernmental disputes End of August 2011 26/8/11 Awaiting task force report and draft bill from KLRC and implementing ministry General Art. 2(6) Incorporation of international Law obligations – Ratification through parliament End of August 2011 Awaiting draft bill from KLRC and implementing ministry Art 67 National Land Commission End of August 2011 Awaiting draft bill from KLRC and implementing ministry In view of the sensitive nature of land it‘s important that this Commission be set up as early as possible so that it can oversee much needed land reforms. Annex III Consultations with Stakeholders and Development Partners ORGANISATION VENUE DATE & TIME OF MEETING Topic Commission on Revenue Allocation C.R.A CIC Board Room 12th Jan,2011 - Stakeholders meeting with the CIC Commissioners CIC Board Room Friday 14th January, 2011- 11.30 am Meeting on Technical Consultative Forum to discuss the Vetting of Judges and Magistrates Bill, 2010 and the Judicial Service Bill 2010 Meeting with IMF/World Bank Treasury 14th Jan 2011 -7.30 am Minister for Justice National Cohesion and constitutional Affairs and the AG CIC Board Room 17th Jan, 2011 8.00 am LSK – CIC Board Room 18th January, 2011 – 2.00 pm IMF/Treasury/CIC CIC Boardroom 19th January, 2011 -8.00 am Parliamentary Oversight Committee on the implementation of the Constitution Parliament 18th January, 2011 – 10.00 pm Parliamentary Justice and Legal Affairs Committee Parliament Kenya Parliamentary Network CIC Boardroom 18th January, 2011 – 03.00 pm Various stakeholders Retreat – Induction for CIC Commissioners Naivasha 24-26th January, 2011 Induction Course for CIC Commissioners Meeting with the Judicial Service Commission High court Boardroom 31st Jan, 2011 – 11:00 am Courtesy Call by Judges of the Interim Constitutional Dispute Resolution Court CIC Boardroom 31st Jan 2011 – 03:00pm THE KENYA GAZETTE 17th February, 2012 482 482 ORGANISATION VENUE DATE & TIME OF MEETING Topic DGDG Canadian Embassy 1st Feb, 2011 – 3.00 pm Kenya Editors Guild Panafric Hotel 8/02/2011 – 7:30 am IDLO Representative CIC Boardroom 8/02/2011- 2.30 pm Workshop to validate the APSEA Policy Brief on the Implementation of the Constitution - Pride Inn Hotel Raphta Road Westlands 10th Feb, 2011- 9 am Courtesy call by Chairman - IIEC CIC Board Room 10/02/2011 – 11:00 am UNPD Consultative meeting CIC Board Room 14th Feb, 2011- 2.30 pm NCCK Courtesy call CIC Board Room 15th Feb, 2011 – 3.00pm European Union to Kenya – Heads of Mission EU Offices on Ragati Road, Upper Hill 16th Feb, 2011 – 8.00 am Meeting with AG and chairman Kenya Law reform Commission CIC Boardroom 28th Feb. 2011 - 2.00 pm Retreat for the CIC New Stanley Hotel 9th – 10 March 2011 Meeting with secretary to the Cabinet Harambee House 2nd Floor 16th March 2011 – 3 pm Meeting with Ministry of Justice National Cohesion and Constitutional Affairs and UNDP on constitution conference CIC Boardroom 21st March, 2011 – 8.30 am Meeting with ICPS(K) CIC Boardroom 21st March, 2011 – 7.00 am Meeting with AG, Minister and the PS for Justice National Cohesion and Constitutional Affairs CIC Boardroom 21st March, 2011 – 2.30 pm