Kenya Network of Grassroots Organisations (KENGO): Submissions to the CoE
Wangui Mbatia, KENGO
Below please find the submissions made by KENGO to the CoE for your
consideration and comment.
Thanks,
Wangui Mbatia
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KENYA NETWORK OF GRASSROOTS ORGANISATIONS (KENGO)
MEMORANDUM BY THE MEMBERS OF THE KENYA NETWORK OF GRASSROOTS
ORGANISATIONS (KENGO) TO THE COMMITTEE OF EXPERTS ON THE CONSTITUTION:
WHO IS KENGO?
The Kenya Network of Grassroots Organizations KENGO) is a network of
active grassroots organizations drawn from all 8 provinces of Kenya.
The network has been in existence for several years and is registered
as a Society under The Societies Act, Cap 108 Laws of Kenya. At
present membership of KENGO consists of over 2,000 registered groups
including self help groups, women and youth groups, welfare
associations, community based organizations, faith-based
organizations, resident and trade associations.
PROCESS
In soliciting for a position on the Harmonized Draft Constitution,
KENGO took a two-pronged approach. One approach was to join other like-
minded organizations in an attempt to maximize impact. In this
respect, KENGO together with the Coast Education Centre (COEC), Nyanza
Youth Coalition (NYC), Citizens Assembly (CA), Youth Agenda (YAA) and
the Kenya Muslim Youth Alliance (KYMA) operating jointly under the
National Youth Forum (NYF) conducted extensive countrywide
consultative meetings with the youth to deliberate on the Harmonized
Draft Constitution. The National Youth Forum organized a meeting of
700 young leaders from every constituency in the country on the
November 17, 2009 and the Harmonized Draft Constitution was, co-
incidentally, released on the same day at the same venue that the
youth meeting was held. This group of 700 young Kenyans had,
therefore, the benefit of being the first group of youth to receive
the Harmonized Draft Constitution. It was in this meeting that a
resolution and commitment was made that the youth would actively
engage in reviewing the HDC and subsequently collect and collate the
views of the youth. Over 100,000 copies of the Harmonized Draft
Constitution were distributed to the youth through the NYF. Regional
meetings were organized by the consortium partners in all 8 provinces
and views of the youth collected. These views were later used to
generate a youth position on the Harmonized Draft Constitution based
on the consensus built during the various open discussions held
countrywide. KENGO, therefore wishes to associate itself with the
views expressed by the National Youth Forum with respect to views of
young people regarding the Harmonized Draft Constitution as presented
to the Committee of Experts on December 16, 2009. The same
comprehensive views were also carried in an advertisement on the Daily
Nation newspaper of December 17, 2009.
The other approach taken by KENGO was to conduct a series of meetings
of KENGO members in various parts of the country. In most cases,
network members conducted daily debates which brought together network
members and the general public. The following summary is the outcome
of this second approach. Despite the fact that both approaches were
run independent of each other, it is remarkable to note that there are
no conflicts between the views expressed by the youth through the
National Youth Forum and those expressed by KENGO members. Over 15,000
copies of the Harmonized Draft Constitution have been distributed to
KENGO members and youth country-wide through the support of the
National Youth Forum. KENGO youth members were also involved in a
nationwide consultative process lead by the National Youth Forum and
their views submitted.
The following submissions, do, however, provide a few additional
issues that were generated as well as the rationale for the
recommendations. The enthusiasm with which the people involved
participated in the discussions underpins the importance of the
constitution review process. It is hoped that submission of their
views will result in an improvement and, most importantly, move Kenya
closer to the realization of a new constitutional dispensation.
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MEMORANDUM OF MEMBERS OF
THE KENYA NETWORK OF GRASSROOTS ORGANISATIONS (KENGO)
TO THE COMMITTEE OF EXPERTS ON THE CONSTITUTION
AS SUBMITTED ON DECEMBER 17, 2009
OVERVIEW OF THE DRAFT CONSTITUTION
We thank the Committee of Experts (CoE) for a commendable effort to
offer a Harmonized Draft Constitution (HDC). We note that the draft
has captured the aspirations of the people of Kenya and are grateful
to see that many of the issues of importance to ordinary citizens have
been incorporated in the Harmonized Draft Constitution.
After wide consultations in a series of meetings held daily in
different parts of the country over the past 30 days, it is our
considered opinion that the Harmonized Draft Constitution represents a
genuine effort at harmonizing existing drafts and that with
improvements it is a foundation that will assist us realize a
constitution for posterity. The Harmonized Draft Constitution, we
believe, is an effort towards finding a good constitution, not for the
future general elections, but for the future generations.
Some provisions contained in the Harmonized Draft Constitution are of
extreme value to the people and in our submissions we will identify
them and request that they be safeguarded and preserved in future
drafts. There are some provisions which we feel need improvement or
harmonization and in our submissions we will be offering our
recommendations for consideration.
RECOMMENDED AMENDMENTS TO THE HARMONIZED DRAFT CONSTITUTION: SPECIFIC
RECOMMENDATIONS CHAPTER BY CHAPTER
Chapter Two: The Republic
Article 5: The size, scope and breadth of Kenya should be clearly
defined in the constitution and pegged on our national laws so as to
leave no doubt whatsoever and to remove the dependency on
international law. The boundaries of Kenya should be known and
defined. The provisions of the constitution are sovereign law in Kenya
and must not be subject to, nor make reference other laws,
international or otherwise.
Article 7: It is our opinion that Nairobi may remain the de facto
capital of Kenya but it is not necessary to provide for that fact in
the constitution. The First Schedule, provides for Nairobi
Metropolitan Region which is sufficient to provide equity in and
sharing of the collective resources of the people of Kenya that are
invested in Nairobi. In the future, there may be need to locate our
capital city elsewhere. Having to change the constitution in order to
do that places an unnecessary burden on the people.
Chapter Three: National Values Principles and Goals
Article 13: Clause 13(2)(k) which addresses the percentage of
representation of persons with disabilities should be amended to
remove the provision for 5% representation and instead peg the
allocation of opportunities on the percentage of persons with
disabilities in the population as determined through the population
census.
Chapter Four: Citizenship
Article 19: In view of the fact that Kenya has over the years been a
host to refugees from virtually all her neighboring countries, there
is further need to restrict naturalization in order to preclude
refugees and other categories of foreigners including those with
criminal records, otherwise an anticipated influx of applications from
refugees would lead to insecurity, instability, a strain on resources
and tensions in the country. Refugees resident in Kenya should
continue to acquire citizenship not just in Kenya but in other
countries as provided for by UNHCR procedures.
Article 21: Dual citizenship privileges should apply only to citizens
who are Kenyans by birth and descent. Foreigners wishing to become
Kenyans should be required to relinquish their original citizenship
and swear allegiance to Kenya.
N.B. Failure to change this provision will adversely affect Article 82
(Land Holding by non-citizens) and will likely render the provision
redundant. With Kenyan citizenship being so readily available, no
foreigner who is a land-holder will fail to apply for citizenship,
making absolute nonsense of the spirit of Article 82 which is intended
to protect Kenyan land resources from the exploitation by foreigners.
Chapter Five: Culture
Article 27 Clause 27(i) should be amended to include not just
indigenous seeds and plant varieties, but also include preservation
and protection of indigenous knowledge and technology, animal species
including wild life endemic to Kenya and indigenous livestock breeds
such as Zebu and Boran cattle and their products. This right should
also restrict recognition of foreign-held patents on indigenous
products, species and breeds.
Chapter Six: The Bill of Rights
We commend the Committee of Experts for not only clearly outlining the
economic, social and political rights of the people, but also for
providing for their application, enforcement and implementation
mechanisms in the Harmonized Draft Constitution. In tandem with
Article 1 which provides for the sovereignty of the people, Clause 29
(3) clearly outlines the inalienable nature of these rights. We
further appreciate Articles 33 and 34 that address the shortcomings in
the current constitution and ensure that the rights of the people are
not unduly limited. We submit that these items be safeguarded and
preserved.
Article 35: The majority of our members feel the draft should
explicitly declare that life begins at conception.
Article 40: The rights of the youth should be enumerated in a
similar way as the rights of children as listed in Article 41. The
clear listing of rights of the youth in the constitution will serve to
remove the existing ambiguities. We recommend the adoption of the
rights of youth as enumerated in the Bomas Draft.
Article 51 While this article provides for freedom of the media, in
view of the important role that media, especially State-owned media
plays in shaping public opinion, provision should be provided to safe-
guard the citizens against irresponsible media practices. We recommend
that clause 54(5) be amended to include a provision that Parliament
shall enact legislation that imposes preventive and punitive sanctions
on the media- State-owned or otherwise- in order to preserve a
responsible and professional media.
Further, clause 51(4)(a) should be amended to include the words
“subject to Article 121(a)” in order to rationalize it with the
provision that enables Parliament to make laws for equitable
allocation of airtime to political parties. Without that amendment
there is a likely chance that the two provisions will be seen to be in
conflict. At this stage, insofar as reference is made to “other
specified categories of broadcasting media” there is need to indicate
how charges emanating from this provision will be paid. We recommend
that any costs emanating from this provision be charged on the
Political Parties Fund and Article 119 be amended accordingly.
Article 57 Clause 57(2) should be amended to remove the words “in
compliance with international law” so that the constitution of Kenya
is not subject to any other law and instead whatever anticipated right
conferred by the international law is clearly given. Further, the
Sixth Schedule should be amended so that the schedule for
implementation is extended to Three Years in order to provide for
adequate time for consultation and liaison with international bodies
such as the United Nations High Commission on Refugees which are
presently responsible for resettlement of refugees. Noting that the
Sixth Schedule provides for establishment of citizenship laws
(Articles 19, 21(3), 23(2) and 25) within a two-year time frame, it is
irrational and impractical to provide for asylum to refugees faster
than citizenship.
Article 63 Access to free and compulsory education should be extended
to include secondary education. In addition, Clause 63(3) presupposes
adequate access and availability with respect to post-secondary
education while the reality is that in many areas they are neither
available nor readily available. Institutions of higher learning
should also be expressly provided for in the constitution. The
constitution should not define education to be limited only to basic
primary and secondary education; it should include tertiary colleges,
universities and research institutions.
Article 72 Clause 72(1)(f) should be amended to provide for accused
persons to be brought before court within 24 hours. Further, the words
“outside ordinary court hours or on a day that is not an ordinary
court day” should be deleted to provide for the possibility of a
judiciary that functions 24 hours, 365 days a year. This deletion not
only be compliant with Article 34 that expressly dictates that the
right to fair trial must not be subject to any limitation, but it will
also serve to safeguard and preserve the right to speedy trial
provided for in Clause 73(e) and address the injustice created by
delay in determination of cases.
Article 73 In tandem with Article 34 which stipulates that the right
to fair trial shall not be subject to any limitation, Clause 73(4)
should be amended to absolutely prohibit the use of evidence obtained
in a manner that violates the Bill of Rights.
Chapter Seven: Land
Land reform, or lack thereof, has occasioned great distress among the
people of Kenya. That the Constitution recognizes that there have been
historical injustices and seeks to resolve them is commendable. We
pray for the preservation especially of clauses 84 (g) and (i).
Article 79 Clause 79(f) which defines all minerals and mineral oils
as public property should be amended and made subject to Article 59.
The clause has an adverse effect on the rights conferred to
communities and individuals through Articles 80 and 81 and suggests
that community and private property ownership is protected only when
the land contains no mineral wealth. When and if a need exists to
nationalize minerals and minerals oils, Clause 91(f) sufficiently
serves to address national equity matters without necessarily
dispossessing the community and private individuals.
Article 82 Clause 82(2) should be amended to reduce the lease period
from 99 to a period not exceeding 40 years and be expressly subject to
Clause 83(3).
Article 83 Clause 83(3) anticipates legislation whose time frame is
not provided for. Time frame for implementation should be provided for
in the Sixth Schedule and given a two-year time frame.
Article 85 Clause 85(2) should be amended to remove the
responsibility of Parliament in determining the date of review
required by clause 85 (1)(h). Instead implementation of Clauses 85(1)
(h) should also be subject to the time frame established in the Sixth
schedule for Article 85.
Chapter Eight: Environment
Article 92 Clause 92(1) should be amended to include the words
“subject to Article 59” to ensure that the State is not provided with
an absolute right to derogate rights of communities and individuals
over their land and resources.
In addition, he Sixth Schedule provides for a time frame for enactment
of legislation provided for by a non-existent Clause 91(2) Amendment
should be made in to reflect the correct clause 92(2)
Further, Clause 92(1) should be subject to Clause 59(2).
Chapter Nine: Leadership and Integrity
Article 99 Clause 99(3)(4) should be amended so as not to expressly
bar the Anti-Corruption Commission from investigating any case.
Instead, the power to investigate any case should be granted subject
to Articles 73.
Chapter 10: Representation
The Committee of Experts has made great effort towards establishing a
more fair and representative regime for the representation of the
people. Issues affecting the people are well captured and we pray for
the preservation of Articles 104, 107, 112 (i), (j), and (k). Besides,
we note and appreciate the recognition that in order to facilitate a
more inclusive representation there is need to provide for affirmative
action for the benefit of disenfranchised constituencies. We support
the provisions of Clauses 13(2)(j).
We, however, suggest that the word “women” whenever used in reference
to representation, be replaced by the words “subject to Clause 13(2)
(j), the gender less represented”. Considering that the Harmonized
Draft Constitution is meant to serve posterity, it should anticipate
and mitigate situations in the future in which women outnumber men in
elected legislative bodies in which case men would need affirmative
action to satisfy the requirements of Clause 13(2)(j). We propose,
therefore, amendments to clauses 125(1)(b), 126(1)(b), 126(4) and 128
(a).
We propose that all elections to legislative assemblies be through
direct universal adult suffrage vote. There should be no provision for
electoral colleges to provide the people with the opportunity to be
directly involved in identifying and selecting their leaders and also
to give effect to the recommended amendment to the Article 131 that
enables a recall of representatives at all levels.
We note that the people of Kenya have suffered greatly as a result of
the disadvantages of an election system based on a First Past the Post
winner-take-all process. It has resulted in underrepresentation and
marginalization of some constituencies while creating disaffection
amongst citizens especially where numerous candidates create a winning
candidate who really represents a minority. We therefore propose the
adoption of a Mixed Member Proportional Representation with Open
Political Party lists subject to Clause 13(2)(j)and (k) at all levels.
This will facilitate the development of political parties and create
an environment in which healthy competition among political parties
will likely yield stronger, fewer and more representative political
parties that are necessary in a healthy democracy.
Article 102: This should be amended to include the enhancement of
national cohesion and unity as a principle.
Article 110: Clause 110(2)(a) should be amended to provide for a 14
day time frame for the filing of the petitions in case of presidential
elections. Seven days may be too short for a petition to be filed.
Chapter Eleven: Legislature
We support the bi-cameral legislature comprising of the Senate and
the National Assembly in which both the President and Prime Minister
shall have membership in both chambers.
Article 123: We propose the amendment of this article to provide for
clarity especially with respect to jurisdiction in creation of
original legislation. In addition, the definition of Parliament
should, pursuant to the roles assigned by Articles 140, include the
State President. As long as Presidential assent and referral are part
of the process of enactment of laws, Article 124(2)(a) requires the
inclusion of the State President in the composition of Parliament.
Further, the composition of the Senate shall provide for inclusion of
the Prime Minister as an ex-officio member of the Senate.
Furthermore, effort should be made to provide either for a limitation
of jurisdiction of either chamber or a consultative or mediation
process between the National Assembly and the Senate with respect to
enactment of national legislation so that original but contradictory
laws are not passed.
In addition, amendment of national legislation passed by either the
National Assembly or the Senate with legislation passed by the other
chamber should be subject to approval by 65% of the members of the
other house and should be thereafter referred to the house where the
legislation was passed and if the amendment obtain a simple majority
in that house they shall take effect upon assent by the President.
Article 125: Clause 125(1) should provide for a specified number of
seats in the Senate to guard against a bloated government. We
recommend that regional assemblies be removed so that the devolved
government consists of County governments only. Each county should
then be able to elect one representative to the Senate. As such the
senate will consist of 74 senators elected by directly by the people
through universal adult suffrage and any additional members as may be
provided for by the Independent Electoral and Boundaries Commission
pursuant to Article 13(2)(j) and (k). This will enable the Independent
Electoral and Boundaries Commission to conduct the duties enumerated
in Article 113(1). We recommend that all representatives of the Senate
be elected directly by the people through universal adult suffrage on
the basis of a Mixed Member Proportional Representation with Open
Political Party lists.
Article 126: Clause 126(1) should expressly provide for a specified
number of Constituencies to guard against a bloated government. We
recommend that the number be pegged on the population on the basis of
one-man, one-vote and be subject to a review by the Independent
Electoral and Boundaries Commission every 15 years which review shall
be guided by the outcome of a population census to be conducted at
intervals of not less than eight and not more than twelve years. As
such the National Assembly will consist of such number of
representatives as established by the Independent Electoral Commission
after population census and such other additional members as may be
provided for by the Independent Electoral and Boundaries Commission
pursuant to Article 13(2)(j) and (k). This will enable the Independent
Electoral and Boundaries Commission to conduct the duties enumerated
in Article 113(1). We recommend that all representatives of the
National Assembly be elected directly by the people through universal
adult suffrage on the basis of a Mixed Member Proportional
Representation with Open Political Party lists.
Article 128: Clause 128(a) and (b) should be amended to reflect the
spirit anticipated by Clause 13(2)(j) and (k). We further recommend
that the Sixth Schedule be amended provide for a one year time frame
for the enactment of the legislation to give force to Article 128.
Article 131: This article should be amended to provide for the right
to recall representatives in all legislative bodies including county
assemblies. In order to facilitate the smooth running of the
legislative bodies, limitation should, however, be made to subject the
right to recall representatives to restrictions including a grace
period of at least two years through a petition to the Independent
Electoral and Boundaries Commission supported by 50%+1 of the
electorate who cast their ballot in the previous election and provided
that any such a recall shall be on the grounds of a violation, by the
legislator, of the provisions of Chapter Nine.
We further recommend that the Sixth Schedule be amended to provide for
a one year time frame for the enactment of the legislation to give
force to Article 131.
Chapter Twelve: The Executive
Cognizant of the fact that the people of Kenya have agitated for a
less powerful executive, we propose that the Harmonized Draft
Constitution adopt a hybrid system of governance in which there shall
be a Presidential elected directly by the people through universal
adult suffrage and who shall be the final authority in the Executive.
The president shall be subject to the checks and balances provided for
by clauses 167(1), 168(4), Article 169 and Article 170. There shall be
a Prime Minister of the Republic of Kenya who shall be Chairperson of
the House Business Committee in the National Assembly and shall be an
ex-officio member of the Senate.
We further propose that there be proper checks and balances upon the
Executive and note that there are appreciable measures taken to reduce
the powers of the Executive in the Harmonized Draft Constitution. We
particularly note the following articles which reduce the powers of
the president- Article 75, Clause 158(5), Article 169, 170 and Clause
172(1). We recommend that these provisions be preserved.
The Harmonized Draft Constitution provides for both a President and a
Prime Minister. It is noteworthy that the Committee of Experts has
provided for delegation of duties within the executive arm of
government. The Harmonized Draft Constitution, however, fails to
establish who the final authority vests in between the President and
the Prime Minister. We recommend that the final authority be vested in
President who will be elected directly by the people through universal
adult suffrage.
Article 157: We propose that the provision be made for the President
to also be the Head of Government.
Article 158: Clause 158(2) should be amended to “The State President,
in consultation with the Prime Minister, in accordance….”
Clause 158(2)(a) Should be amended so that the State President does
not have the responsibility of appointing the Prime Minister. That
role should be left to the process provided for in Article 180.
Further amendment should be made so that appointment to the Cabinet
shall be subject to nomination of candidates by the President in
consultation with the Prime Minister and subject the nominations to
confirmation by the National Assembly.
Further provision should be made for where dispute arises between the
President and the Prime Minister with respect to the nominations to
the Cabinet, so that the Speaker of the National Assembly in
consultation with the Speaker of the Senate shall, independent of the
President and the Prime Minister, nominate Cabinet members who on
gaining the confirmation of the members of the respective
legislatures, and the President be mandated to appoint those Cabinet
members to office.
Article 159: Clause 159(1) should be amended to provide that the
President shall propose legislation and refer it to the Prime Minister
for introduction into the National Assembly so that proposals of
legislation from the executive shall be in consultation with the Prime
Minister. Furthermore, this amendment is required especially in view
of the fact Clause 184(3) provides for members of the Cabinet drawn
from outside Parliament who may, therefore, be strangers to Parliament
and unable to introduce the proposed legislation. This further
supports our recommendation that the Prime Minister be a member of
both the Senate and the National Assembly.
Article 165: Pursuant to the Clause 110(2)(a) which provides for the
filing of petitions in case of Presidential elections within seven
days, Clause 165(2) should be amended to provide for determination of
petitions pertaining to presidential elections within 60 days. Seven
days is not only in conflict with Clause 110(2)(a), but is also too
short a period for the matter to be filed, served and determined,
especially where the determination of such petition may require a
recount of votes.
Further, it is necessary for Clause 166(3) to stipulate what should
happen in case the president-elect loses the petition and clearly
state whether there shall be a run-off of presidential elections or
whether the court shall determine the winner. In so doing, the
provision must take cognizance of the possibility of both the
president-elect and the petitioner losing to a third candidate and
mitigate against any political tensions that may be occasioned by such
situations.
Furthermore, in order to provide for a smooth transition and adequate
time to determine petitions of presidential elections, Clause 166(4)
should be amended to provide for a transition time frame of 90 days
between the election of State of President and swearing in or
inauguration of the president-elect.
As a result of this amendment, Article 158(5) should be amended to as
follows: “With the approval of the Cabinet and in consultation with
the President-Elect, where applicable, the president shall”
Article 167: Whereas the provisions are made to bar a person from
holding the office of State President for more than two terms the
possibility of such person continuing to exercise executive power as a
Prime Minister is not mitigated. We recommend that Clause 167(3) be
amended to expressly bar such person from holding any other State
office provided for in the Executive including Cabinet positions. This
will mitigate against a former President manipulating his way back
into the Executive.
Article 169: Clause 169(b) should be amended to provide for the
nominee to be a competent medical practitioner rather than an advocate
in view of the fact that the issues in questions are not legal ones
but medical ones.
Furthermore, Clause 169(3)(c) should be amended to remove the
possibility of the President nominating any member of the tribunal and
instead use the provisions of Clause 169(4).
Article 171: Clause 171 (2) should be amended to provide for Deputy
State President to assume office for the reminder of the term without
any regard to the duration left in order to keep presidential
elections in tandem with other elections. The situations that are
anticipated by Clauses 171(2)(a) and (b) are already sufficiently
provided for under Clause 167(4) and are therefore frivolous and
unnecessary. The presence of the two clauses, however, creates the
possibility of presidential elections falling out of synch with other
elections and therefore creating the opportunity for a sitting
president who is not eligible for elections to manipulate on-going
elections.
Article 176: Clause 176 (1) shall be amended to provide that despite
the subsequent presidential elections happening 60 days later, the
presidential term shall be deemed to have commenced and ended at the
time when the first deceased president would have assumed office so
that future elections are not altered by the date of the subsequent
election.
As a result of this amendment, we recommend that Article 167(1) be
amended and made subject to Article 176 (1).
Article 179: We recommend that Clause 179(1) be amended to provide
that the Prime Minister shall be the Chair of the House Business
Committee in the National Assembly and an ex-officio member of the
Senate Business Committee.
Further, we propose that Clause 179(2) be amended to provide that the
Prime Minister shall “direct, supervise and coordinate the work of the
ministries”
Article 184: Clause 184(1) We propose the inclusion of the State
President and Deputy State President in the Cabinet.
Clause 184 (2)(c) should remove the minimum bar in the number of the
cabinet to provide for a leaner Cabinet. We recommend the adoption of
the provision of the Bomas Draft for a cabinet of not fewer than 15
and not more than 25 members.
Clause 184(9) which provides that the Prime Minister may be charged
with the responsibility of a ministry should be amended to expressly
bar the Prime Minister from holding a ministerial portfolio in order
to enable him to efficiently act as a supervisor for all ministries
and provide an effective check and balance opportunity.
Clause 184(2) should be amended to subject proposals of Cabinet
appointments who are members of the National Assembly by the Prime
Minister to a vetting and confirmation process in the National
Assembly prior to presentation to the State President for appointment.
Clause 184(3) should be amended to subject proposals of Cabinet
appointments of persons who are not members of the National Assembly
to a confirmation process in both the National Assembly and the
Senate.
Article 186: We recommend that Clause 186(2) the provision which
provides for a successful vote of no confidence against a Prime
Minister be effectively a vote of no confidence against the entire
Cabinet be amended to provide for the resignation of the Prime
Minister alone. Thus, the threat of such vote of no confidence will be
an effective check by the National Assembly against excesses of the
executive through the Prime Minister. This will be especially useful
should the President and the Prime Minister be members of the same
political party.
We further recommend that Clause 186(5) be amended to provide for an
immediate appointment of a new Prime Minister subject to Article 180.
Article 190: We recommend that Clause 190(3) (a) and (b) with respect
to the Secretary to the Cabinet be amended to subject the Prime
Minister’s nomination and or decision to dismiss to a vote in the
National Assembly prior to presentation to the President for the
decision to be effected.
Article 192: We recommend that Clause 192(b) be amended so that the
decision to dismiss the Principal Secretary shall be made by the body
that nominated him.
Chapter Thirteen: Judiciary
We commend the Committee of Experts for a well structured judiciary.
We note the addition of the Supreme Court and the Constitution Court
and pray for their preservation in the Harmonized Draft Constitution.
With respect to the Seventh Schedule, Articles 15(3) is vague and does
not state what happens when a judge has not attained the age of
retirement stipulated by this Harmonized Draft Constitution. We
recommend that this clause be deleted so that judges are not subjected
to a dismissal without due process. Article 11 of the Seventh Schedule
sufficiently deals with transition of existing officers and should be
sufficient to deal with officers serving in the judiciary. We
recommend, however, that provision be made to require that all
officers seeking to retain their position be required to acquire
additional training on the provisions of the new constitution, their
intended purpose and their application prior to resuming their duties.
Article 201: We recommend that Clause 201(1)(a) be amended to remove
the words ‘the president’ and substitute them with “shall preside
over”. This will serve to eliminate ambiguity in the usage of the word
president and make it the preserve of the executive arm of government
for clarity.
Article 209: We recommend that Article 209 be amended and the
provision for the Kadhi’s Courts be retained as they are in the
current constitution.
Article 210: We recommend the inclusion of the Chief Justice as a
member of the Judicial Service Commission.
Chapter 14: Devolved government
While appreciating the need to bring the government closer to the
people, we submit that there are too many tiers of the devolved
government in the Harmonized Draft Constitution. We propose,
therefore, that there be two levels of government: the national
government and the County governments. As a result we submit that
Articles 215, 216, 216 and 217 be deleted.
Article 221: Clause 221(1) should expressly provide for a specified
number of Wards in the County Assembly to guard against a bloated
county government. We recommend that the number of Wards be pegged on
the population on the basis of one-man, one-vote and be subject to a
review by the Independent Electoral and Boundaries Commission every 15
years which review shall be guided by the outcome of a population
census to be conducted at intervals of not less than eight and not
more than twelve years. As such the County Assembly will consist of
such number of representatives as established by the Independent
Electoral Commission after population census and such other additional
members as may be provided for by the Independent Electoral and
Boundaries Commission pursuant to Article 13(2)(j) and (k). This will
enable the Independent Electoral and Boundaries Commission to conduct
the duties enumerated in Article 113(1). We recommend that all
representatives of the County Assembly representatives be elected
directly by the people through universal adult suffrage.
Chapter Fifteen: Public Finance
Article 264: Clause 264(4) outlines functions of the Controller of
Budget that may be in conflict or duplicate the role of the Minister
for Finance. We recommend that all provisions in Article 264 include
requirement for the Controller of Budget to act in consultation with
the Minister for Finance.
We further recommend that Clause 264 (c) be removed as the Controller
of Budget is a stranger to the National Assembly. Besides, the
National Assembly retains the responsibility of overseeing and
supervising expenditure and the Controller of Budget should be subject
to summons emanating from the relevant parliamentary finance
committees.
Chapter Sixteen: The Public Service
With respect to the hiring of teachers, Article 275 and Article 277
are in conflict. We recommend that the Teachers Service Commission
should be the only body to employ, deploy and transfer teachers and an
express limitation to that effect be included in Article 275.
Chapter 17: National Security
Article 284: Subject to 157(2) we recommend that clause 284(3) be
amended to provide for the Commander in Chief of the Armed Forces to
be included in the Defense Council.
Article 285: The Command of the Kenya Defense Forces should be on the
basis of competence and merit. To facilitate the smooth operations of
our defense forces it is necessary to respect the need for a hierarchy
of orders. We therefore, recommend that the words “shall reflect the
regional and ethnic diversity of the people of Kenya” be deleted from
Clause 285(2).
Article 288: Subject to 157(2) we recommend that clause 288(1) be
amended to provide for the Commander in Chief of the Armed Forces to
be included in the National Intelligence Council.
Chapter 20: General Provisions
Article 311: Definitions of the following terms should be made
clearer because of their effect on other aspects:
“marginalized community” and “marginalized group” because of their
effect on the representation. This requires a clear definition of what
comprises of marginalization and at what stage such marginalization
will be deemed to have been adequately addressed and corrected.
“person” should be deleted because it is ambiguous, open and subject
to abuse and because of the adverse effect it has on land, especially
Article 82.
“State Offices” we note the omission of the Prime Minister from the
list. We recommend that the office of the Prime Minister be included
in the list of State Offices.
Chapter Twenty One: Transitional and Consequential Provisions
Article 313: We recommend that this Commission on the Implementation
of the Constitution be removed as it is unnecessary and duplicates the
roles and responsibilities of the Human Rights and Gender Commission
as well as those of the courts of superior jurisdiction including the
Supreme Court, the Court of Appeal and the Constitutional Court.
Articles 29, 30 and 31 generously provide for the mechanism of
application, implementation and enforcement of the Bill of Rights.
Clause 201(6) confers upon the Supreme Court the jurisdiction over the
interpretation and application of the Constitution. Clauses 202(3)(a),
203 (3) and 204(3) give jurisdiction to the Court of Appeal,
Constitutional Court and the High Court respectively to preside over
matters arising from the constitution. There is no reason to impose
upon the taxpayers an additional burden of paying for a commission
that duplicates these roles.
Article 315: Promulgation of the constitution should be by the people
of Kenya through a referendum based on universal adult suffrage with a
valid Kenyan Identity Card or Passport serving as adequate proof of
citizenship and qualification to vote.
First Schedule
To guard against certain communities ‘owning’ certain counties, we
recommend that measures be taken to ensure that no region,
constituency or county is given a name used to indicate a community.
We recommend the substitution of such names with community or tribe
neutral names.
Fourth Schedule
The enumeration of functions of the various levels of government in
the constitution may be good for clearer determination of the
jurisdiction of the various governments. In our opinion, however, the
list is too detailed as to include provisions that essentially the
ambit of by-laws. We recommend rationalization of that list to
eliminate frivolous provisions such as constitutional requirements for
the care, accommodation and burial of animals as provided in Part 3,
Clause 6(a) and (b).
Seventh Schedule
Article 10: While there may be reason and need to dissolve the
Provincial Administration, we recommend that Clause 10(1) of the
Seventh Schedule be amended to provide for more transition period in
order to facilitate the handover process of matters such as land
adjudication, security details etc which are presently administered by
the Provincial Administration.
Further, Clause 10(4) should be amended to clearly indicate who will
have custody of the assets of the Provincial Administration upon its
dissolution.
Submitted to the Committee of Experts on behalf of members of:
ORGANISATION ADDRESS
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