All Permanent Secretaries/Accounting Officers
(With sufficient copies for all Chief Executive Officers of State Corporations)
The objective of this communication is to advise all Government Ministries, Parastatals, Regulatory Boards and all Constitutional Commissions and other institutions that have the primary responsibility for generating policies, proposed legislation and administrative procedures required for the implementation of the Constitution of Kenya 2010, on the process to be followed in undertaking the exercise.
The procedures outlined in this communication take cognizance of the values enshrined in Article 10 of the Constitution and which are deemed necessary for the furtherance of the mandate of the Commission for the Implementation of the Constitution (CIC) as spelt out below.
The Commission for the Implementation of the Constitution (CIC) is established under Section 5(1) of the Sixth schedule to the Constitution. The mandate of CIC is stipulated in Section 5(6) of the same schedule and Section 4 of the Commission for the Implementation of the Constitution Act 2010.
The functions of CIC are to:-
(a) monitor, facilitate and oversee the development of legislation and administrative procedures required to implement this Constitution;
(b) co-ordinate with the Attorney-General and the Kenya Law Reform Commission in preparing for tabling in Parliament, the legislation required to implement this Constitution;
(c) report every three (3) months to the Constitutional Implementation Oversight Committee on:-
(i) progress in the implementation of this Constitution; and
(ii) any impediments to its implementation; and
(d) Work with each Constitutional Commission to ensure that the letter and spirit of this Constitution is respected; and
(e) Exercise such other functions as are provided for by the Constitution or any other written law.
The mandate of CIC is further amplified by Article 249 (1) which sets out the objects of the Constitutional Commissions and the independent offices to include:-
a) protecting the sovereignty of the people;
b) securing the observance by all State organs of democratic values and principles; and
c) promoting constitutionalism.
Further Article 261 extends the mandate of the CIC as follows:
Article 261 (1) Parliament shall enact any legislation required by this Constitution to be enacted to govern a particular matter within the period specified in the Fifth Schedule, commencing on the effective date.
Article 261 (4) For the purposes of Clause (1), the Attorney-General, in consultation with the Commission for the Implementation of the Constitution, shall prepare the relevant Bills for tabling before Parliament, as soon as reasonably practicable, to enable Parliament to enact the legislation within the period specified.
Section 15 (d) of the Sixth schedule requires CIC to ensure that the system of devolved government is implemented effectively.
PROCESS
To enable it carry out its constitutional mandate effectively, CIC advises that the following procedure be followed by the Public Service:-
1) Each of the Institutions listed above should familiarize itself with the entire Constitution and its implications and ensure that:-
a) In the course of performing its duties the constitution is not violated;
b) In performing its duties all new and existing policies, laws and administrative procedures that are being applied are consistent with the letter and spirit of the constitution; and
c) Implementation of the Constitution is integrated in performance contracts. In this regard, implementing institutions should provide for implementation in its goals, set targets for measuring performance and provide incentives for achieving these targets. The performance contract should incorporate an evaluation model that shall provide feedback on performance and best practice in the implementation process.
2) The aforementioned familiarization with the Constitution will enable the institutions to undertake a comprehensive audit of all existing Sessional papers; laws, by-laws and regulations; policies; administrative procedures; government guidelines and circulars relating to its functions and to the sector in which the Institution operates.
3) The intention of the audit is to determine the compliance of such sessional papers; laws, by-laws and regulations; policies; government guidelines; circulars and administrative procedures with the letter and spirit of the Constitution.
4) Upon audit of all such existing sessional papers; laws, by- laws and regulations; policies; government guidelines; circulars and administrative procedures, any language that is inconsistent with the Constitution be identified and a plan for its review developed and the necessary review subsequently undertaken.
5) Each Institution, in consultation with the Attorney General (AG) should also identify any new laws that are required for the implementation of the Constitution. The legislation in question will include but not be limited to those listed in the Fifth Schedule of the constitution. In undertaking this activity the Institutions are also free to consult CIC.
6) Each Institution should identify any new administrative procedures that may be required to implement the constitution.
7) Each Ministry should, within the shortest time possible after issuance of this circular, submit its comprehensive plan for the development and review of Sessional papers; laws, by-laws and regulations; policies and administrative procedures required to implement the constitution to the following:
a) The Commission for the Implementation of the Constitution;
b) The Ministry of Justice, Constitutional Affairs and National Cohesion being the Ministry coordinating the implementation of the constitution within Government;
c) The Attorney General, and
d) The Kenya Law Reform Commission,
i) The plans submitted by Ministries should indicate:
„X The sessional papers; laws, by-laws and regulations to be reviewed;
„X The policies and administrative procedures to be developed or reviewed; and
„X Nature of the reviews to be undertaken.
ii. The steps in reviewing the by-laws, laws, sessional papers, policies and administrative procedures already taken and the expected timeframes for outstanding activities,
8) In reviewing existing policies, administrative procedures and legislation, and determining the necessity of new laws organisational/institutional policies, administrative procedures and legislation, each Ministry or other institutions participating in such processes should in particular take into account the following:-
a) The existence
of any international treaty ratified by Kenya relating to any matter concerning the sector and which has not been domesticated
b)The provisions relating to the Bill of Rights in the Constitution and in particular the need to incorporate the requirement for progressive implementation of the socio-economic rights under Article 43 of the Constitution in appropriate legislation
c) The values and principles articulated in Article 10, Chapter 6 (Leadership and integrity) and Chapter 13 Part I (values and principles of public service) of the Constitution including:-
i. Participation of the people;
ii. Equity, inclusiveness, human rights, social justice, equality , non-discrimination and protection of the marginalized;
iii. The principle of gender equity and regional balance in the consideration of opportunities;
iv.Sharing and devolution of power;
v.Good governance, integrity, transparency and accountability
vi. Sustainable development;
vii. The principles on leadership and integrity in Chapter 6 of the Constitution;
viii. The principles of fairness, prudence, clarity and the need for fiscal responsibility in the management of public resources in Chapter 12 of the constitution; and
ix. Any other principle within the Constitution.
9) In determining new policy and administrative procedures, and generating new legislation, every Ministry and every Institution involved in implementing the Constitution should ensure that the process leading to the determination of policy and generation of legislation and administrative procedures is undertaken in a participatory and transparent manner. In this respect, the public and in particular sectoral stakeholders including members of Civil Society Organisations and Community Based Organisations should be given reasonable opportunity to effectively participate in the process taking into account all relevant factors, including the nature of the policy, administrative procedures and legislation, its implications and the applicable time constraints.
Public participation includes any or all of the following:-
i. Structured process of gathering views of the public during policy formulation or Bill preparation;
ii. Stakeholder input via workshops, seminars or other fora;
iii. Dissemination of draft Bill to the public for discussion through various media outlets;
iv. Focused media debate on policy or draft Bill;
v. Credible process of considering public views; and
vi. Validation workshops.
10) In determining whether any draft legislation forwarded to CIC for review is consistent with the letter and spirit of the constitution, CIC will take the following criteria into account:-
a) The extent to which the public participated effectively in generating the policy or legislation;
b) The consistency of any sessional papers; laws, by-laws and regulations; policies and administrative procedures within the letter and spirit of the constitution;
c) The adequacy and sufficiency of the sessional papers; laws, by-laws and regulations; policies and administrative procedures in enabling implementation of the constitution; and
d) The impact of the sessional papers; laws, by-laws and regulations; policies and administrative procedures on other laws, institutions and the two levels of government i.e. national and county governments.
Change Management
CIC recommends:-
11) That each Institution in consultation with the Government Department coordinating the implementation of the Constitution within government and CIC develops a change management strategy and applies it in all the activities of the Institution.
12) The change management strategy should outline how each Institution plans to effect the change necessary for the realisation of the requirements of the Constitution.
13) That within the next three (3) months each Institution submits to CIC and to the Government Department coordinating the activities relating to the implementation of the Constitution its change management strategy to enable efficient monitoring of the process of the implementation of the Constitution.
14) For the purposes of this Circular 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 by the promulgation and coming into effect of a new constitution, The Constitution of Kenya, 2010. The goal of change management shall be to entrench the culture of constitutionalism within the institution and in service delivery.
MODE OF COLLABORATION AND WORKING WITH THE CIC
15) Each implementing institution should establish an implementation unit that shall oversee the implementation of the work plan and report on the progress and impediments to implementation of the Constitution. The implementation unit shall work with CIC in ensuring that progress is on track.
16) The implementation institution shall ensure that it trains its staff to internalize the objectives of implementation of the Constitution. This will ensure that all actors share the same vision and avoid the risk of discordant or conflicting implementation initiatives. Upon request, CIC shall provide advice on the training guidelines to ensure that it reflects the letter and spirit of the Constitution.
17) To enable CIC report on the progress of implementation as required by the Constitution, each ministry should submit its implementation report to CIC three weeks before the end of each quarter. For the purposes of this circular, the first quarter ends on the 30th of June 2011. The report should be provided in a format to be provided by CIC after consultation with the ministries.
18) CIC, in pursuance of its mandate to monitor the implementation of the Constitution, will from time to time undertake an audit of the different sectoral policies, laws, and administrative processes and structures to determine compliance with the letter and spirit of the Constitution.
(With sufficient copies for all Chief Executive Officers of State Corporations)
The objective of this communication is to advise all Government Ministries, Parastatals, Regulatory Boards and all Constitutional Commissions and other institutions that have the primary responsibility for generating policies, proposed legislation and administrative procedures required for the implementation of the Constitution of Kenya 2010, on the process to be followed in undertaking the exercise.
The procedures outlined in this communication take cognizance of the values enshrined in Article 10 of the Constitution and which are deemed necessary for the furtherance of the mandate of the Commission for the Implementation of the Constitution (CIC) as spelt out below.
The Commission for the Implementation of the Constitution (CIC) is established under Section 5(1) of the Sixth schedule to the Constitution. The mandate of CIC is stipulated in Section 5(6) of the same schedule and Section 4 of the Commission for the Implementation of the Constitution Act 2010.
The functions of CIC are to:-
(a) monitor, facilitate and oversee the development of legislation and administrative procedures required to implement this Constitution;
(b) co-ordinate with the Attorney-General and the Kenya Law Reform Commission in preparing for tabling in Parliament, the legislation required to implement this Constitution;
(c) report every three (3) months to the Constitutional Implementation Oversight Committee on:-
(i) progress in the implementation of this Constitution; and
(ii) any impediments to its implementation; and
(d) Work with each Constitutional Commission to ensure that the letter and spirit of this Constitution is respected; and
(e) Exercise such other functions as are provided for by the Constitution or any other written law.
The mandate of CIC is further amplified by Article 249 (1) which sets out the objects of the Constitutional Commissions and the independent offices to include:-
a) protecting the sovereignty of the people;
b) securing the observance by all State organs of democratic values and principles; and
c) promoting constitutionalism.
Further Article 261 extends the mandate of the CIC as follows:
Article 261 (1) Parliament shall enact any legislation required by this Constitution to be enacted to govern a particular matter within the period specified in the Fifth Schedule, commencing on the effective date.
Article 261 (4) For the purposes of Clause (1), the Attorney-General, in consultation with the Commission for the Implementation of the Constitution, shall prepare the relevant Bills for tabling before Parliament, as soon as reasonably practicable, to enable Parliament to enact the legislation within the period specified.
Section 15 (d) of the Sixth schedule requires CIC to ensure that the system of devolved government is implemented effectively.
PROCESS
To enable it carry out its constitutional mandate effectively, CIC advises that the following procedure be followed by the Public Service:-
1) Each of the Institutions listed above should familiarize itself with the entire Constitution and its implications and ensure that:-
a) In the course of performing its duties the constitution is not violated;
b) In performing its duties all new and existing policies, laws and administrative procedures that are being applied are consistent with the letter and spirit of the constitution; and
c) Implementation of the Constitution is integrated in performance contracts. In this regard, implementing institutions should provide for implementation in its goals, set targets for measuring performance and provide incentives for achieving these targets. The performance contract should incorporate an evaluation model that shall provide feedback on performance and best practice in the implementation process.
2) The aforementioned familiarization with the Constitution will enable the institutions to undertake a comprehensive audit of all existing Sessional papers; laws, by-laws and regulations; policies; administrative procedures; government guidelines and circulars relating to its functions and to the sector in which the Institution operates.
3) The intention of the audit is to determine the compliance of such sessional papers; laws, by-laws and regulations; policies; government guidelines; circulars and administrative procedures with the letter and spirit of the Constitution.
4) Upon audit of all such existing sessional papers; laws, by- laws and regulations; policies; government guidelines; circulars and administrative procedures, any language that is inconsistent with the Constitution be identified and a plan for its review developed and the necessary review subsequently undertaken.
5) Each Institution, in consultation with the Attorney General (AG) should also identify any new laws that are required for the implementation of the Constitution. The legislation in question will include but not be limited to those listed in the Fifth Schedule of the constitution. In undertaking this activity the Institutions are also free to consult CIC.
6) Each Institution should identify any new administrative procedures that may be required to implement the constitution.
7) Each Ministry should, within the shortest time possible after issuance of this circular, submit its comprehensive plan for the development and review of Sessional papers; laws, by-laws and regulations; policies and administrative procedures required to implement the constitution to the following:
a) The Commission for the Implementation of the Constitution;
b) The Ministry of Justice, Constitutional Affairs and National Cohesion being the Ministry coordinating the implementation of the constitution within Government;
c) The Attorney General, and
d) The Kenya Law Reform Commission,
i) The plans submitted by Ministries should indicate:
„X The sessional papers; laws, by-laws and regulations to be reviewed;
„X The policies and administrative procedures to be developed or reviewed; and
„X Nature of the reviews to be undertaken.
ii. The steps in reviewing the by-laws, laws, sessional papers, policies and administrative procedures already taken and the expected timeframes for outstanding activities,
8) In reviewing existing policies, administrative procedures and legislation, and determining the necessity of new laws organisational/institutional policies, administrative procedures and legislation, each Ministry or other institutions participating in such processes should in particular take into account the following:-
a) The existence
of any international treaty ratified by Kenya relating to any matter concerning the sector and which has not been domesticated
b)The provisions relating to the Bill of Rights in the Constitution and in particular the need to incorporate the requirement for progressive implementation of the socio-economic rights under Article 43 of the Constitution in appropriate legislation
c) The values and principles articulated in Article 10, Chapter 6 (Leadership and integrity) and Chapter 13 Part I (values and principles of public service) of the Constitution including:-
i. Participation of the people;
ii. Equity, inclusiveness, human rights, social justice, equality , non-discrimination and protection of the marginalized;
iii. The principle of gender equity and regional balance in the consideration of opportunities;
iv.Sharing and devolution of power;
v.Good governance, integrity, transparency and accountability
vi. Sustainable development;
vii. The principles on leadership and integrity in Chapter 6 of the Constitution;
viii. The principles of fairness, prudence, clarity and the need for fiscal responsibility in the management of public resources in Chapter 12 of the constitution; and
ix. Any other principle within the Constitution.
9) In determining new policy and administrative procedures, and generating new legislation, every Ministry and every Institution involved in implementing the Constitution should ensure that the process leading to the determination of policy and generation of legislation and administrative procedures is undertaken in a participatory and transparent manner. In this respect, the public and in particular sectoral stakeholders including members of Civil Society Organisations and Community Based Organisations should be given reasonable opportunity to effectively participate in the process taking into account all relevant factors, including the nature of the policy, administrative procedures and legislation, its implications and the applicable time constraints.
Public participation includes any or all of the following:-
i. Structured process of gathering views of the public during policy formulation or Bill preparation;
ii. Stakeholder input via workshops, seminars or other fora;
iii. Dissemination of draft Bill to the public for discussion through various media outlets;
iv. Focused media debate on policy or draft Bill;
v. Credible process of considering public views; and
vi. Validation workshops.
10) In determining whether any draft legislation forwarded to CIC for review is consistent with the letter and spirit of the constitution, CIC will take the following criteria into account:-
a) The extent to which the public participated effectively in generating the policy or legislation;
b) The consistency of any sessional papers; laws, by-laws and regulations; policies and administrative procedures within the letter and spirit of the constitution;
c) The adequacy and sufficiency of the sessional papers; laws, by-laws and regulations; policies and administrative procedures in enabling implementation of the constitution; and
d) The impact of the sessional papers; laws, by-laws and regulations; policies and administrative procedures on other laws, institutions and the two levels of government i.e. national and county governments.
Change Management
CIC recommends:-
11) That each Institution in consultation with the Government Department coordinating the implementation of the Constitution within government and CIC develops a change management strategy and applies it in all the activities of the Institution.
12) The change management strategy should outline how each Institution plans to effect the change necessary for the realisation of the requirements of the Constitution.
13) That within the next three (3) months each Institution submits to CIC and to the Government Department coordinating the activities relating to the implementation of the Constitution its change management strategy to enable efficient monitoring of the process of the implementation of the Constitution.
14) For the purposes of this Circular 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 by the promulgation and coming into effect of a new constitution, The Constitution of Kenya, 2010. The goal of change management shall be to entrench the culture of constitutionalism within the institution and in service delivery.
MODE OF COLLABORATION AND WORKING WITH THE CIC
15) Each implementing institution should establish an implementation unit that shall oversee the implementation of the work plan and report on the progress and impediments to implementation of the Constitution. The implementation unit shall work with CIC in ensuring that progress is on track.
16) The implementation institution shall ensure that it trains its staff to internalize the objectives of implementation of the Constitution. This will ensure that all actors share the same vision and avoid the risk of discordant or conflicting implementation initiatives. Upon request, CIC shall provide advice on the training guidelines to ensure that it reflects the letter and spirit of the Constitution.
17) To enable CIC report on the progress of implementation as required by the Constitution, each ministry should submit its implementation report to CIC three weeks before the end of each quarter. For the purposes of this circular, the first quarter ends on the 30th of June 2011. The report should be provided in a format to be provided by CIC after consultation with the ministries.
18) CIC, in pursuance of its mandate to monitor the implementation of the Constitution, will from time to time undertake an audit of the different sectoral policies, laws, and administrative processes and structures to determine compliance with the letter and spirit of the Constitution.
Amb. Francis Muthaura, EGH
Permanent Secretary, Secretary to
the Cabinet and the Head of Public Service
Copy to:
The Rt. Hon. Prime Minister,
H.E. the Vice-President and Minister for Home Affairs.
The Hon. Deputy Prime Minister and Minister for Finance.
The Hon. Deputy Prime Minister and Minister for Local Government.
All Hon. Ministers
All Hon. Assistant Ministers.
No comments:
Post a Comment