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REFUSAL TO ASSENT TO THE STATUTE LAW (MISCELLANEOUS AMENDMENTS) BILL, 2012

THE CONSTITUTION OF KENYA

MEMORANDUM

By His Excellency the Honourable Mwai Kibaki, President and Commander-in-Chief of the Kenya Defence Forces

Submitted to the Speaker of the National Assembly.

WHEREAS a Bill entitled “A Bill for An Act of Parliament to make minor amendments to statute law, the short title of which is “The  Statute Law (Miscellaneous Amendments) Bill, 2012”, was passed by the National Assembly on the 21st June, 2012;

AND WHEREAS the Statute Law (Miscellaneous Amendments)  Bill, 2012, was presented to me for assent, in accordance with the provisions of the Constitution, on the 25th June, 2012;

NOW THEREFORE, in exercise of the powers conferred on me by section 46(3) and (4) of the former Constitution, I refuse to assent to the Statute Law (Miscellaneous Amendments) Bill, 2012, for the reasons set out hereunder:

THE POLITICAL PARTIES ACT, 2011 (No. 11 of 2011): SECTION 41

The Bill proposes to amend section 41 of the Political Parties Act, 2011 to introduce a new subsection (1A) as follows –

(1A) Until after the first general elections held after the Commencement of this Act, nothing provided in  subsections (4), (5), or (7) of section 14 shall be construed as requiring a person to vacate his or  her seat as a Member of Parliament or of a local authority, or as disqualifying any person from eligibility to contest an elections under this Act.

The matter of the consequence of defecting from political parties or changing allegiance between parties is a already the subject of court petitions, among them the following –

Petition Number 220 of 2011 Ephraim Maina -v-  Attorney-General;

Petition No. 233 of 2011 Gideon Mbuvi -v- Attorney-General;

Petition No. 172 of 2011 Alexander Muthengi Muchee -v- Attorney General;

Petition No. 198 of 2011 Johnstone Muthama -v- Attorney-General;

Petition No. 254 of 2012 Isaac Aluoch Polo Aluochier -v- Attorney-General.

These petitions are still pending in the Courts. In keeping with the doctrine of the separation of Powers, matters which are before the Court should not be the subject of legislation by the National Assembly.

RECOMMENDATION:

For the reason specified above I recommend that the proposed subsection (1A) be deleted from the Bill.

THE ELECTIONS ACT (NO. 24 of 2011) SECTION 22

The Bill proposes to amend section 22(2) of the Elections Act to require that candidates for election as a Member of Parliament should be required to hold a degree from a University recognised in Kenya, in the same way as the President, Deputy President, County Governor or Deputy County Governor.  And further delete the proposed section 22(3).

The matter of the qualifications for eligibility for election as member of Parliament is also the subject of the following petition –

Petition No. 198 of 2011 Johnstone Muthama -v-Attorney-General, which challenges the original provisions of the Act relating to the requirement for post–secondary qualifications to vie for elective posts.

The petition is still pending in Court.  In keeping with the doctrine of the Separation of Powers, matters which are before the Court should not be the subject of legislation by the National Assembly.

RECOMMENDATION:

For the reason stated above, I recommend that the proposed amendment to section 22(2) and 22(3) be deleted from the Bill.

Dated the 25th June, 2012.

MWAI KIBAKI,

President.

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