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Kenya: President Vetoes Major Legislation

(July 12, 2012) On June 25, 2012, Mwai Kibaki, President of Kenya, vetoed the Statute Law (Miscellaneous Amendments) Bill 2012 (34 KENYA GAZETTE SUPPLEMENT (May 2, 2012)), which the National Assembly had adopted on June 21. Kibaki argued that his assent to the legislation in its current form would violate the principle of separation of powers. (Breaking News: President Kibaki Rejects the Statute Law, DIASPORA MESSENGER (June 25, 2012).)

In his memo to the Parliament on the veto, Kibaki noted that he was opposed to two items in the legislation that cover issues currently pending before Kenyan courts. First, the legislation seeks to alter the Political Parties Act, 2011 (Commission for the Implementation of the Constitution (CIC) website (last visited July 5, 2012)), with the effect of ending the automatic disqualification from election of a person who switches political parties. (Memorandum on Refusal to Assent to the Statute Law (Miscellaneous Amendments) Bill, 2012 (June 25, 2012), Mars Group Blog.) Second, it seeks to amend the Elections Act of 2011 (CIC website (last visited July 5, 2012)) to make earning a university degree a requirement for qualification to run for a seat in Parliament. (Id.) Kibaki stated that his assent to legislation that includes these two amendment provisions where their legality is currently being litigated before Kenyan courts would violate the principle of separation of powers. (Id.)

Various groups in Kenya contend that the problems with the legislation go far beyond the concerns Kibaki articulated. The CIC has published its complaints against various provisions in the legislation, including those on which the President based his veto. It argues that the inclusion of various provisions that substantially affect laws intended to implement the 2010 Constitution violates the proper constitutionally-mandated consultation process, and therefore the legislation is unconstitutional in its entirety. (CIC's Position on Matters Relating to the Current Statute Law (Miscellaneous Amendments) Bill on the Floor of the House (Parliament) to Amend: (a) The Elections Act, 2011; and (b) the Political Parties Act, 2011, CIC website (June 20, 2012).)

The Constitution and Reform Education Consortium (CRECO), a coalition of 25 nongovernmental human rights groups, has gone further and filed a lawsuit challenging the legality of the legislation before the High Court in Nairobi on the basis of concerns similar to those raised by the CIC. CRECO claims that the President should have rejected the legislation on the basis that it is unconstitutional and that he should not have limited his objections to only two of the proposed amendments. (Judy Ogutu, NGO Seeks to Block Elections Act Amendments, STANDARD DIGITAL (June 28, 2012).)

The continued challenge to the legislation by various groups in Kenya, despite the fact that it has been vetoed by the President, is highly significant, mainly because when Parliament takes up the legislation following the President's veto, it will take one of two possible courses of action, neither of which will address the concerns raised. It may either amend the bill to accommodate the President's concerns or pass it again with enough votes to override the veto. (The Constitution of Kenya, 2010, ยง 115 (Aug. 28, 2010), Postal Corporation of Kenya website.)

The legislation is not unpopular in its entirety. For instance, it has earned high praise for its repeal of a provision in the Sexual Offences Act that has the effect of discouraging reporting of sexual offenses, including rape. The provision states: โ€œ[a]ny person who makes false allegations against another person to the effect that the person has committed an offence under this Act is guilty of an offence and shall be liable to punishment equal to that for the offence complained of.โ€ (Act No. 3 of 2006 โ€“ Sexual Offences Act (in force July 21, 2006), Centre for Human Rights, University of Pretoria.)

The above-cited provision is said to impose redundant and highly punitive sentences upon those who make false accusations regarding sexual offenses, and the Federation of Women Lawyers Kenya (FIDA Kenya) praised the pending legislation for its proposal to repeal the provision. (FIDA Kenya et al., Joint Submission of Shadow Report to the Human Rights Committee on International Covenant on Civil and Political Rights (Kenya), Human Rights Committee 105th Session (July 9-27, 2012), Office of the High Commissioner of Human Rights website.)