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{
    "id": 270142,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/270142/?format=api",
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    "content": "Following several contributions on the issue by a number of Members, I undertook to give guidance on the matter. Honourable Members will recall that this House passed the County Governments Bill, 2012 on Thursday 23rd February, 2012. His Excellency the President, however, pursuant to section 46(3) and (4) of the former Constitution, which are saved by section 3(2) of the Sixth Schedule to the Constitution, declined to give assent to the Bill and submitted a Memorandum in respect thereof indicating specific provisions which should be reconsidered by the National Assembly including recommendations for deletion and amendments. As Honourable Members are aware, the County Governments Bill, 2012 is one of the proposed statutes which in terms of Article 261 of the Constitution and the Fifth Schedule of the same, was required to be enacted within a period of eighteen months from 27th August, 2010, the date of the promulgation of the Constitution. The final date for the enactment of this Act was 27th February, 2012. The question that then arises, and on which the directions of the Chair have been sought, is whether or not the submission of a Memorandum by His Excellency the President on the County Governments Bill, 2012, which Memorandum is dated 27th February, 2012, accords with the constitutional requirements of Article 261 and the Fifth Schedule to the Constitution. Honourable Members, Article 261(1) of the Constitution requires Parliament to enact any legislation required by the Constitution to govern a particular matter within the period specified in the Fifth Schedule, commencing from the effective date. The applicable provisions on the procedure for the enactment of legislation during this period of transition is to be found at Sections 30 and 46 of the former Constitution. Section 30 provides that the legislative power of the Republic vests in the Parliament of Kenya which consists of the President and the National Assembly. While Sub-sections (1) and (2) of Section 46 provide for that legislative power to be exercised through Bills passed by the National Assembly and assented to by the President. Legislation is, therefore, enacted, not when it is passed by this House, but when the President assents to it. It is thus clear that the requirement at Article 261(1) of the Constitution that legislation on County Governments be enacted on or before 27th February, 2012 sets out a deadline within which the processes both by this House and by the President must have been completed. In the event, the requirements of Article 261(1) of the Constitution were not met with respect to the County Governments Bill, 2012, as it ought to have been enacted into law on or before 27th February, 2012, now past. Honourable Members, notwithstanding the foregoing, it is clear that pursuant to Sub-sections (3) and (4) of Section 46 of the former Constitution says that the President’s right to refuse to assent to a Bill passed by the House and to return it to the House with a Memorandum is not taken away by the expiry of the period for enactment provided for under Article 261 of the Constitution. The question that then arises is as follows: Does this failure to meet the deadline fall under the ambit of Article 261 (5) especially taking cognizance of the fact that the Bill in question had been passed by the House? I am awake to the terms of Article 259 (9) as follows:- “If any person or state organ has authority under this Constitution to extend a period of time prescribed by this Constitution, the authority may be exercised either before or after the end of the period, unless a contrary intention is expressly specified in the provision conferring the authority.” I appeal to the Attorney-General to exercise his mind on this provision more so noting his submission in his contribution in the House when the issue was raised to the effect that he is already seized of the matter."
}