Katiba Sasa! Campaign · Issues in the Harmonized Draft Constitution was organized by the Katiba...

Katiba Sasa! Campaign NCSC NATIONAL CONSOLIDATION CONFERENCE: HARMONIZING CIVIL SOCIETY POSITION ON CONTENT ISSUES IN THE HARMONIZED DRAFT CONSTITUTION

HELD IN NAIROBI KASARANI SPORTS VIEW HOTEL ON 14TH – 15TH DECEMBER 2009

CONFERENCE REPORT Prepared by: CRECO Secretariat Upperhill, Matumbato Road P.O Box 2231 – 00200 Nairobi Tel: 020 271 4762/63 Mobile: 0722209779 Contact Person Mr. Kawive Wambua Executive Secretary

© December 2009

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ACKNOWLEDGEMENT

The production of this report was made possible by the significant contribution made by the participants who actively took part in the conference deliberations. This report acknowledges all the participants for their valuable contributions. Prior to and during the conference, a great deal of mobilization and coordination was done by the CRECO secretariat and its affiliate membership in conjunction with the technical team of the Katiba Sasa! Campaign. Consequently acknowledgement goes to the CRECO secretariat and members of the technical team of the Katiba Sasa! Campaign for facilitating the process leading to the production of this report. The conference was co-funded by Friedrich Ebert Stiftung (FES), Citizen’s Coalition for Constitutional Change (4Cs), Center for Law and Research International (CLARION) and Uraia; their financial contribution is highly appreciated for without it the production of this report would not have been possible. Finally the report equally acknowledges the facilitators and resource persons of the conference for their technical expertise.

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Table of Contents ACKNOWLEDGEMENT ........................................................................................................................................................... 2 Table of Contents ............................................................................................................................................................................. 3 Abbreviations/Acronyms ............................................................................................................................................................... 4 1.0 PART A: INTRODUCTIONS .............................................................................................................................................. 6

1.1 Background Information ..................................................................................................................................................... 6 2.0 PART B: THE NATIONAL CONSOLIDATION CONFERENCE PROCEEDINGS ........................................ 7

2.1 Opening Remarks ................................................................................................................................................................. 7 2.2 Presentation by Mr. Kawive Wambua ............................................................................................................................... 7 2.3 Presentation by Ms. Patricia Nyaundi ............................................................................................................................... 8 2.4 Presentation by Zein Abubakar .......................................................................................................................................... 9 2.5 Presentation by Prof. Yash Pal Ghai ................................................................................................................................. 9 2.6 Dr. Phil Knight’s Presentation .......................................................................................................................................... 10

3.0 GROUP WORK...................................................................................................................................................................... 11 3.1 Group Discussions ............................................................................................................................................................. 11 3.2. Plenary Reporting and Harmonisation of Views from the Groups .......................................................................... 12

4.0 CLOSURE ................................................................................................................................................................................ 12 4.1 Closing Remarks .................................................................................................................................................................. 12 5.1 CSOs Harmonised Position Document .......................................................................................................................... 13 5.2 Conference Programme ..................................................................................................................................................... 21

5.3. List of Participants .................................................................................................................................................................. 22

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Abbreviations/Acronyms

CLARION: Center for Law and Research International

CKRC: Constitution of Kenya Review Commission

CPDA: Christian Partners in Development Agency

COE: Committee of Experts

CRECO: Constitution and Reform Education Consortium

CSOs: Civil Society Organisation

FES: Friedrich Ebert Stiftung

FIDA: Federation of International Women Lawyers

HDCK: Harmonized Draft Constitution of Kenya

KCCT: Kenya College of Communications and Technology

MP: Member of Parliament

NGOs: Non Governmental Organisation

NCSC: National Civil Society Congress

4Cs: Citizen’s Coalition for Constitutional Change

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Executive Summary

The National Consolidation Conference on Harmonizing Civil Society Position on Content Issues in the Harmonized Draft Constitution was organized by the Katiba Sasa! Campaign, which is hosted by the CRECO Secretariat. The purpose of the conference was to facilitate deliberations by CSOs on the Harmonised Draft Constitution with a view to develop a common position on the recommendations and views that would be shared with the COE. This report captures the proceedings of the National Consolidation Conference held at Kasarani Sports View Hotel in Nairobi. The report is organized and presented in five main parts flowing chronologically namely; (i) Introductory background to the harmonizing Civil Society position on content issues in the harmonized Draft Constitution (ii) Presentations by the Technical Team and the invited speakers (iii) Analysis of the harmonized Draft constitution by the international experts (iv) Group discussions and plenary review (v) Adoption of Resolutions and Common Position. The technical details of the report are structured so as to capture and highlight the critical issues around which resolutions on a common position were based. These revolved around all the chapters of the HDCK and were incorporated into “the Harmonized Analysis Draft Constitution: the Civil society Position” document annexed to this report. .

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1.0 PART A: INTRODUCTIONS

1.1 Background Information

The Katiba Sasa! Campaign is a Civil Society initiative mobilizing the public in pushing for the realization of a new constitution in Kenya. The initiative started by proposing 11 cardinal principles which have since been adopted by the Civil Society sector to be used by members of the public as a guide for evaluating the harmonized draft constitution and determining (as a score card) the acceptability of the new constitution. Since the release of the HDCK by the COE for public analysis and inputs the Katiba Sasa! Campaign has organized a number of regional public forums across the country to enable citizens to analyze and give their views on the HDCK. The civil society is developing a harmonized position on the draft based on the 11 cardinal principles and the views generated by members of the public through the above mentioned forums. This National Consolidation Conference was the culmination of the regional forums and was used to harmonize the final position of the Civil Society on the Harmonized Draft Constitution. The outcome of the consolidation conference would be forwarded to the COE as the final position/inputs by the CSOs in the new constitution. 1.2 Objectives of the National Consolidation Conference The main objective of the Consolidation Conference was to consolidate the CSOs positions/views on the Harmonized Draft Constitution into a nationally harmonized Civil Society position. The specific objectives of the conference were the following:

To interrogate the HDCK and give recommendations on areas that need to be revised To get input from the international constitutional experts on the areas that need to be

reviewed on the HDCK To consolidate the various views/recommendations from CSOs stakeholders To develop a harmonized CSOs position on the HDCK

. 1.3 Methodology for Conference Deliberations The National Consolidation Conference adopted a methodology that would be participatory and inclusive. The methodology specifically included:

Introductory remarks by the host CSO (CRECO) Presentations by the Steering Committee members of the Katiba Sasa! Campaign and

invited guests Lead presentations by foreign constitutional experts Group discussions and plenary adoption by the participants.

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2.0 PART B: THE NATIONAL CONSOLIDATION CONFERENCE PROCEEDINGS

2.1 Opening Remarks

Stephen Musau, one of the members of the Technical Committee of the Katiba Sasa! Campaign, welcomed the participants and asked a volunteer (Helen) to lead the participants with singing of the Kenya National Anthem. Mr. Musau explained the purpose of the conference was to consolidate and validate the civil society position on the harmonized draft along the 11 cardinal principles. He observed that regional forums that preceded the national conference had generated issues and views that the public would want to be addressed by the COE, and these are the ones to be presented here for harmonization and forwarding to the CEO. He recognized the regional representatives and asked them to stand as per the regions that they represented. Participants were cautioned against political interference on the success of the harmonized draft constitution by politicians. Musau called for the participants to make the voice of the people amplified by identifying the areas in the HDCK where they need the conference and COE to have a major focus on. He called on the participants to deliberate on the draft without fear. He then introduced the participants according to the regions they represented. Participants were asked to stand according to their regions, which were as follows:

1. Western 2. Nyanza 3. North Rift 4. Central Rift 5. South Rift 6. Central Kenya 7. Upper Eastern 8. Central Eastern 9. Lower Eastern 10. Coastal Region 11. Nairobi Region 12. North Eastern

Mr. Musau Invited the Chief Executive Officer of CRECO, Mr. Kawive Wambua to introduce the objectives of the conference.

2.2 Presentation by Mr. Kawive Wambua

Mr. Kawive Wambua welcomed the participants to the National Consolidation Conference on Harmonizing Civil Society Position on Content Issues in the Harmonized Draft Constitution. He acknowledged the important role that the Civil Society had played in the constitutional review process and their participation which culminated to the ongoing Katiba Sasa! Campaign. He recognized the members of the Technical Committee of the Katiba Sasa! Campaign and the important work they have been doing. He also recognized the attendance of a number of guests including:

1. Zein Abubakar a former CKRC Commissioner and General Manager of Uraia, which has been supporting the Katiba Sasa! Campaign

2. Kavetsa Adagala, former CKRC Commissioner

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3. Patricia Nyaundi of FIDA 4. Alice Kirambi of CPDA 5. David Wanjama 6. Maria Okong’o 7. Mutumishi Njeru Kathangu of CREDO

He also acknowledged the presence of the International Peer Review team, which was represented by Prof. Phal Ghai and Dr. Phil Knight He thanked the Friedrich Ebert Stiftung, Uraia, CLARION and 4Cs for the support that they gave to the Katiba Sasa! Campaign, particularly in facilitating the hosting of the national conference. He pointed out that the Katiba Sasa! Campaign started by developing the eleven cardinal principles that would guide in the analysis of the Harmonised Draft Constitution. He further noted the important role that the CSOs have been playing in facilitating discussions on the Harmonised Draft Constitution by citizens at the grassroots level. The 11 cardinal principles were used to guide the public discussions. CSOs also gathered views from citizens at the grassroots level and through the conference the citizen’s views would be integrated into a common position of CSOs on the HDCK to be shared with the Committee of Experts. He stated that the purpose of the conference was to look at the various views from representatives of citizens’ groups and citizens’ formations and include them in the harmonized analysis of the Harmonised Draft Constitution by CSOs. This was important for developing a unified position on how Kenyan’s would like their Constitution to be. He reported that the Katiba Sasa! Campaign had been holding weekly briefings. The meetings had been taking place on Sundays. Briefing meetings had also been taking place regularly at the regional levels along side regional forums. The media had been engaged in the campaign through newspaper adverts, press conferences, and electronic media interactive talk shows. He pointed out that this was a constitutional moment for Kenyan citizen’s to decide on the Constitution that they had been yearning for. He pointed out that power belonged to the people and politicians would not offer Kenyan’s the constitution they had desired. He observed that there are divisions among politicians on the Harmonized Draft Constitution. He asked participants to look at the headings of the two major daily newspapers in Kenya: The Daily Nation and the Standard. The Standard had a heading that read “Power Talks Hit the Wall”. He observed that the headings were pointers to how politicians could derail or hijack the constitution review process. He urged citizens to be extremely vigilante on the politicians. He urged the participants to expose the politicians who would use hate speech and create barriers to the constitutional review process. Mr. Kawive then invited Ms. Patricia Nyaundi, the Executive Director of FIDA to share with participants on women’s position on the Harmonised Draft Constitution.

2.3 Presentation by Ms. Patricia Nyaundi

Ms. Nyaundi reported that a Women’s National Conference to consolidate women’s position on the Harmonised Draft Constitution had taken place at the Multi Media University (formerly KCCT, Mbagathi), the meeting had ended on 14th December. She reported that women were

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generally in agreement with the Committee of Experts and they supported the Harmonised Draft Constitution, which addresses gender issues adequately. Women were especially happy with the proposed Bill of Rights in relation to women empowerment. However, there was a feeling that it was important to separate the Gender Commission from the Human Rights and Gender Commission to enable it to address women’s issues and gender issues more adequately. She reported that during the women’s conference, participants noted that the political class may hijack and scatter the constitution making process. She urged participants to be vigilant of the political class and guard the constitution making process from manipulation by the politicians. She noted that women identified the affirmative action as an important issue that should be guarded. She said that the civil society should avoid at all cost treating women the way politicians had been treating them. She said that politicians were accustomed to treating women as though they were lesser beings, who survived on favours from them. She said that women needed to access opportunities democratically and on the basis of the principle of equality. Women should not be reduced to beggars, always pleading for recognition as equal citizens. She concluded by stating that the gender agenda should be accommodated in the Harmonized Draft Constitution.

2.4 Presentation by Zein Abubakar

Mr. Zein expressed his appreciation to participants for attending the conference within such a short notice. He stated that Uraia was committed to working with the Katiba Sasa! Campaign and giving all support within its scope to enable Kenyan’s get a new constitution. He stated that Kenyan’s were tired of waiting for a new constitution; they were tired of being subjected to degrading conditions and their lives being endangered because of bad governance. He further said that Kenyans were tired of waiting for the Nation that they had been yearning for so long. He observed that this was the appropriate time to contribute in the making of a new constitution that would contribute to a better Nation and the desired change in Kenya. He asked the participants to look at the slogan “Katiba Sasa!” and to compare it with “Katiba Siasa!” he noted that the only difference in the two slogans was a letter ‘i’, yet the meaning of the two slogans was totally different. Katiba Sasa! Campaign conveys citizens’ urgency and quest for a new Constitution. Kenyans were not willing to wait loner for a new constitution. Katiba Siasa! Means different things; it implies wastage of time, trivializing of important issues, politicizing the constitutional making process and this could only be upheld by those who did not wish Kenyans to have a new constitution in the near future. If we accept to follow those who support “Katiba Siasa!” it will take Kenya a million years to get a new constitution; something that should never happen. He urged participants to be wary of those who politicize the constitution making process. He pointed out that with a new constitution, citizens’ rights would be protected, justice would be upheld, peace would be promoted, national cohesion would be enhanced and Kenyan’s would coexist more harmoniously for the posterity of the Nation of Kenya.

2.5 Presentation by Prof. Yash Pal Ghai

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He noted that he was lucky to be engaged, together with other constitutional experts to help analyze the harmonized Draft constitution. They had contributed in debates in various places including the media, public forums at KICC, but there was still need to hold discussions with people who were not involved in the day-to day politics. He stated that the International Peer Review Experts were tasked to look at the actual wording and language of the constitution. Despite the general agreement that the document was good it was important to look at the words carefully because basically the constitution is a legal document that must be devoid of ambiguities for purposes of actualization of its provisions. An analysis of the drafting language was missing in the whole ongoing debate yet it was the language and wording where litigants would be arguing in future during implementation, and hence the importance of making the document very clear. He pointed out that the HDCK was a good document but had some weaknesses. He said that the COE had one more opportunity to fix the harmonized draft by taking into account all the views and recommendations given by the various stakeholders who had spend so much time and efforts analyzing to get the country a constitution that would be as perfect as possible so as not to give the politicians any excuses. The politicians must at all costs be stopped from manipulating the constitution and asked the participants to continue to be vigilant. He noted that new challenges of implementation would emerge once the new constitution was adopted and therefore the civil society would continue to be engaged in the process. He then invited Dr. Phil Knight to present the views of the International peer Review Team on the HDCK.

2.6 Dr. Phil Knight’s Presentation

Dr. Knight mentioned that he had been privileged to have worked with the former CKRC on the Bomas draft constitution that preceded the current Harmonised Draft Constitution. He said that he had seen the ability of the Kenyan constitutional making process to resolve major constitutional issues compared to other constitution making processes in Canada and other western countries. He said that the HDCK shows evidence of improvement from the Bomas, Kilifi and the Wako drafts. Overall the international experts considered the HDCK as a good document that responds to the country’s needs and aspirations. He appreciated that the HDCK captures the identity of Kenyans as well as their national vision. This is a vision of a caring society, a democratic system and a transparent, accountable and ethical government that gives a very positive way forward. The vision seeks to consolidate a united country where the different communities are bound together in loyalty to the nation and solidarity among themselves. He noted that Kenyans are really committed to a new constitution and expect a lot from it. However, Kenyans seem to lack faith in institutions and the people especially the leaders. The HDCK reflects not just the hopes but also the fears, which is reflected in the many provisions designed to control the people and the institutions and the many provisions that require Parliament to enact new laws. He considered the HDCK as a Legislative blue print for parliament. The many registrations proposed for the Parliament to pass by the HDCK (about 75 of them) seem to be too many to enact within two to three years, given that law making is a slow process and the Parliament has other roles to perform.

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He wondered whether the Senate was really necessary. He noted that the Senate seemed to be duplicating the functions of the National Assembly so making it hard to getting new laws passed. The Bill of Rights was considered as good. However, there was need of clarity in the language that` has been used. There was a feeling that the Clauses dealing with equality and non-discrimination were treated differently (fall in different sections) yet they are the same issue. It was recommended that the COE consider merging the two. He stated that the Team of International Experts realized a change of tone in language between the first 10 chapters of the HDCK and the other chapters. He said that the gap in tone of the language was between the vision and principles on one side and institutions and policies on the other side. On the Chapter on the Executive, he pointed out on the ambiguity in the sharing of the executive power between the President and the Prime Minister in the proposed Hybrid System of Government. On the Chapter on the Judiciary, he pointed out that the proposed Constitutional Court may not be necessary. He praised the Independent Judicial Service Commission, which is a way of depoliticizing the appointment of judges and suggested that other judicial officers like magistrates should also be appointed through the Independent Judicial Service Commission. He however, observed that the approval by Parliament may comprise the independence of the Independent Judicial Service Commission. On the Devolution, the experts found it to be a good idea, but questioned the role of the Regional Government. He expressed concern that changing the entire system of governance of a country is a radical move that require moving gradually towards new structures to allow ironing out problems as they arise. The team of International Experts warned against some unintended consequences from some provisions on land like religious groups and NGOs (non citizens and corporate companies) being exempted from the 99 years land lease. They also felt that the National Land Commissioned had been given so much power some of which could be exercised by the Ministry of Lands, which bears political accountability. Finally, they asked the participants to check on the clarity, ambiguity, and other aspects of language that may influence the interpretation of the HDCK. .

3.0 GROUP WORK

3.1 Group Discussions

The participants were divided into 14 groups and assigned the task of analyze the various chapters of the HDCK and report back to the plenary for discussion, adoption, and validation. The 14 groups were as follows: Group 1: Natural Resources and Environment Group 2: Executive Group 3: Representation and Legislature

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Group 4: National Goals, Values, Principles, Leadership &Integrity Group 5: Supremacy & Sovereignty, Republic and Citizenship Group 6: Public Finance, in relation to Devolved Government Group 7: Public Service Group 8: Bill of Rights, Culture Group 9: Land and Property Group 10: Judiciary Group 11: Devolved Government Group 12: National security Group 13: Constitutional Commissions, Amendments to the Constitution Group 14: General Provisions, Transitional & Consequential Provisions & Schedules

3.2. Plenary Reporting and Harmonisation of Views from the Groups

The groups presented their views to the plenary. The views were adopted and consolidated into the Harmonised Common Position of the CSOs on the HDCK. The harmonized views were integrated into the CSOs Common Position document for forwarding to the Committee of Experts. (See the annexed CSOs Harmonised Position Document).

4.0 CLOSURE

4.1 Closing Remarks

Mr. Kawive Wambua thanked the participants for giving their recommendations and the important role they had played on sensitizing citizens at the grass roots level on the HDCK. He informed participants that the Technical Committee had an appointment with the Committee of Experts on Thursday, 17th December, where they would submit the recommendations. He also informed participants that they would receive the consolidated recommendations through email. He once again thanked 4Cs, CLARION, Uraia and the Friedrich Ebert Stiftung for providing financial support towards hosting the conference. He then invited Mtumishi Njeru Kathangu, a civil society activist and a former MP to give the closing remarks. Mtumishi Njeru Kathangu started by pointing out that citizens had the sovereign power. Hence the citizens were entitled to participate in the constitutional making process. The citizens also had the power to oppose and stop anyone derailing the process of making a new constitution. He urged the participants to sensitize the youth so that they would not accept to be used by those who were opposed the constitution to scatter the process. He reemphasized the importance of players in the civil society to be more vigilant of politicians who could hijack or compromise and derail the constitution making process. 5. 0 ANNEXES

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5.1 CSOs Harmonised Position Document

Harmonised Analysis of the Harmonized Draft Constitution of Kenya

Civil Society Organisations Recommendation

Chapters of the HDC Recommendations Why the recommendations Preamble No recommendation -

Chapter 1: Sovereignty of the people and Supremacy

Recommendation Why the Recommendation

No recommendation -

Chapter 2: The Republic Article 6 (1) b: Delete the regional level for we are proposing two levels of devolution

Our recommendation is that we have two-tier levels of government (National and County). In respect of this, any other article that refers to this regional level be deleted or otherwise rewritten

Article 7: Rewrite the article to make Nairobi to be the Administrative capital of Kenya

Other aspects of national importance can be located in other appropriate areas of country

Article 9 (3): there is need to state how languages will be promoted and developed

The Article is ambivalent, is not clear on how these languages will be promoted Sign language should not be lumped with the other languages (it should be stated separately)

Include an Article recognizing international public days (e.g. Human Rights Day, Labour Day)

These days have not been recognised in the HDC whereas they are celebrated worldwide

Chapter 3: (National Values, Principles and Goals

Recommendations Why the recommendations

Article 13: Include affirmative action for the older members of the society.

As per the Bill of Rights, these category has been provided for and therefore should be included here

Article 13 2 (b): Add the element of National Cohesion

The purpose of recognizing diversity should be to enhance national cohesion

Article 13 2 (h) by adding “respect… and fulfillment of ...”

Only adding “respect” and “fulfillment” to enhance and strengthen the clause

Chapter 4 Citizenship

Recommendations Why the Recommendations

Include an Article or Clause on allegiance of those holding public positions in the state and government

This will ensure that those who occupy public positions in the state and the government owe allegiance to the country

Article 20 (2): remove the necessity for an adopted child to apply for citizenship

Adoption is as good as birth

Chapter 5: Culture Recommendations Why the Recommendations Article 13 2 (b) add “progressive” after

“their” and before “culture” To avoid the retrogressive cultural practices like FGM and appreciate cultural dynaminism

Article 26: Replace “recognition of culture” to “affirmation of culture” and in the whole chapter replace “recognition” with

Culture needs to be affirmed in a more dynamic manner

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“affirmation” Article 26 (b) rewrite clause to add the role

of culture in economic advancement To reflect the present dynamics in the culture and arts sector where literary, visual and performing arts

Article 27: insert a clause (j) to reflect promotion and protection of the growth of creative economy and compliance with international cultural instruments

Include the establishment of National Commission on Culture and Heritage which shall establish, among others, the culture and heritage fund

To operationalise and enforce the issues stated in this Chapter

An Act of Parliament to ensure that communities receive compensation or royalties for use of peoples cultures and cultural heritage

This will ensure that culture is appreciated, preserved and protected for national heritage

Need to include an Article recognizing peoples’ cultural rights as per the AU Charter

We are part of the AU and there is need to enhance African Unity

Chapter 6: Bill of Rights Recommendations Why the Recommendations

31 (3) the CJ needs to have limit in time (3-6) months

We should not give a blank cheque of time to the CJ

Article 35 (1) define life Beginning and end of life should not be ambiguous or left to conjecture

Article 35 (2): delete This Article brings death penalty and extrajudicial killings through the back door.

Article 40; define unique needs of the youth To avoid ambiguity

Article 41 (1), rewrite this It is vague

Article 62 rewrite to replace “may” with “shall” To be an obligation of the state to provide medical care

Article 72: insert an Article that provides for the rights to be compensated for unlawful arrests and confinements

This is promotion and protect the rights of the arrested or confined persons and beat impunity

Article 72 (f) reduce the amount of time of confinement from 48 hours to 24 hours

These are rights already being enjoyed by Kenyans when arrested or confined unless its capital offence which the time still remains to be 14 days

Remove the emphasis on limitations and restrictions of rights

There is a limit to the enjoyment of rights due to deliberate obfuscation

Chapter 7: Land and Property


Article 79: re-write clause (d) & (e) on delineation of public land

This may be open to abuse as in some instances it cannot be legally possible to determine a community’s right to land ownership. Apart from legal consideration include other methods which can help establish land ownership

Article 79 (k) include reserve and protection to ensure access to land above the high watermark

To avoid defeating the principle of access to public land

Article 80 2 ( c ) rewrite to include fishing landing sites and beach access roads

To ensure land used by community members is clearly identified to ensure access

Article 81 ( c ): delete this clause There is a possibility of parliament encroaching on community and public land

Article 82 (4) replace “may” with “shall” Land is an important resource and legislation on it should be clearly scheduled

Article 82 (3) Rewrite to remove unintended consequences.

Some citizen formations such as religious groups and other non-state actors have no shareholding and have no

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individual citizens as members and this may prohibit them from owning land

Article 83 (3): include a time frame for parliament to enact the legislation

This will protect local communities from rogue investment

Article 84 (3): delete and replace with “ the National Land Commission shall be devolved and shall recognise diversity in representation”

By having NLC centralized the land problems shall not be resolved

Article 85: add a clause saying that all land on lease hold shall not exceed 99 years for both citizens and non citizens

There are citizens who own and hold land in leasehold for more than 99 years. This should be limited.

Chapter 8: Environment and Natural Resources


Article 87 (d): State domestication framework and timelines to provide public scrutiny of the treaties Kenya is signatory to

For openness and transparency in governance, with right to access of information

Article 87. (i): Increase tree cover from 10% to 25%

We have sung the 10% forest cover for too long yet we have not even achieved it, raise the bar for Kenya to go green.

Art.87 (j): Define the word indigenous As it is, sounds ambiguous Art.87 (k): Amend the Article to read… “where

both the government and communities are direct beneficiaries”.

Communities should be able to enjoy the royalties and benefits of environment and natural resources

Add a Clause to have more powers on the management of natural resources to be with the devolved government structures

This will ensure that management and conservation is on the hands of the people

Insert an article that clearly states what happens to the agreements that were entered into on natural resources use, like mining, and up to now they are valid. With the entry of the new constitution the old agreement should be nullified and deliberated a new.

Lack of clear delineation may mean that bad practices continue.

Chapter 9: Leadership and Integrity


Article 94 2 (a) principles of integrity to be on both elective and appointive positions

Electoral body to ensure this is enforced before the fact of elections, i.e. leaders to be vetted before seeking office to avoid corrupt leaders coming to power

Chapter 10: Representation of the People


Article 104, 1 (C): Proscribe grounds or disqualifications of ones registration as a voter

It should be provided for with clarity

Article 114 (1) (j): add clause requiring that Political parties maintain a regular and updated membership register that should be made public at all time

To enhance accountability in political parties

An Act of Parliament to define mechanisms for deregistering political parties and the reasons for the same including mismanagement of the party, sanctions to be put in place, abuse of the provisions in the constitution,

To ensure accountability of political parties

Article 116: An Act of Parliament to provide for criteria for appointment of Commissioner of Political Parties, functions, term of service (recommended 1 term of six years,) parliament to propose, president to appoint from names

What is provided for is not clear in the Article

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proposed by the parliament. Article 116: Commissioner of political parties to

be given another title and qualifications to be provided - to be called Director of Political parties

He/ she is a Commissioner without a Commission

An Act of Parliament to be enacted on how Kenyans will participate in political parties and have a Public Policy Participation

To ensure political parties are owned by the people and the party members

Add an Article to deal with electoral systems, the principles around the same system and how fairness in representation will be guaranteed at all levels

Kenya now needs proportional representation or Mixed Member Proportional Representation for fairness

Chapter 11: Legislature Recommendations Why the Recommendations Article 124, 139: Role of the Senate and the

National Assembly should be stated clearly to avoid conflict of functions

Senate needs to have oversight role over the NA. The senate must add value to the legislative process.

Article 125 1 (a): re write this clause to have senators being elected by the people with a clear duration of electing the senators

For direct accountability to the people. Election to be within 3-6 months

Article 125 1 (c): Rewrite the clause Confusion in clause could be dealt with i.e. separate youth and PWD in representation

Article 126: Insert an article to ensure that women are adequately represented in the NA

To enhance women empowerment

Article 128 should be clearly scheduled in Schedule 6 ( timeframe to be stipulated as one year)

To ensure that there is no further marginalization

Article 131 (2) to be deleted and mechanism for recall be stipulated clearly as is the case with the PM and State President

It is impractical to ask Parliament to legislate on something that may remove them from office

Article 137 (5) Public participation should not be limited by committees. This article contradicts the provision for openness in parliamentary debate

The clause fails the principle of accountability, it closes its operation to the public and has high chances of abuse

Article 142 (2) delete and provide mechanism in the constitution for this

It is impractical to ask Parliament to legislate on something that interferes with its procedure

Chapter 12 Executive


Determine where the Executive power and authority vests

The HDC is not clear on this

Article 156 contradicts Article 158 on exercise of the executive power and should be recast to avoid conflict in roles between the SP and PM

For clarity of exercise of power

Amend 158 (1) (b) to read address a special sitting as need may arise

It is improper to put a limit. Other needs might arise.

Amend 158 (2) (a) for the president to seek approval from the parliament on appointing and dismissing the PM i.e. this article should be cross-referenced with Article 180

For clarity purposes

Article 156, 158 (2) (a) (b) to be cross-referenced with Article 184

For clarity

Increase the threshold for removal of state president from a quarter as in Article 169 (1) to at

The threshold provided is very low.

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1/3 An Act of parliament should be enacted to define

what it means by gross misconduct under Article 170 (1) (c) and 177 (1) (b) iii

This is to enhance integrity in leadership

An Act of Parliament to define what should be the character, leadership background, integrity, values and qualification in terms of education (at least a university degree) for one to be a state president or Deputy. Also to provide Public Scrutiny mechanism before elections.

As above

Article 180 (1) (b) should determine how the level of command and confidence in the parliament of the PM will be decided and who will should judge this

To avoid unnecessary grandstanding

Let the party with majority of MPs or a coalition produce the PM! Provision on nomination of the PM by the state president should be removed; the speaker should name the PM from the party with majority of MPs or a coalition with many MPs (Article 180 (4), no role of president!

To avoid ambiguity

In event that no single party or coalition is able to command majority, parliament may nominate one among to be elected as a PM

To avoid national instability

Insert a clause to indicate what happens when a vote of no confidence is passed on the PM

For clarity

Article 190 3 (a) (b). Appointment of Secretary to the Cabinet shall be appointed by parliament from the names submitted by the PM in consultations with the State President.

For proper checks and balances

An Act of Parliament to define what should be the character, background, integrity, values and qualification in terms of education for one to be a PM or Deputy and Ministers and also to provide Public Scrutiny mechanism.

For integrity

Article 195: An Act of Parliament to be enacted to guide and define the work of the Public Defender and the procedures to follow to get these services

For clarity and benefits to Kenyans

Article 196 1 (e) An Act of parliament to define what we mean by gross misconduct of the AG, DPP and Public Defender

For integrity

Article 196 (9) determine the notice period for resignation of AG, DPP and PD

To enhance accountability in public offices

Chapter 13: Judiciary Recommendations Why the Recommendations Introduce an Article that stipulates Principles and

Declarations on Citizen’s Access to Justice including but not limited to ‐ The period in determination of a case, ‐ The legal fee for filing civil proceedings, ‐ The support and strengthening of the

traditional and alternative means of resolving cases, conflict resolutions/ management,

‐ Sanctions on abuse of law and impunity practiced by the agents of law,

For access to justice by ALL

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‐ Provision of legal aid to all, ‐ De-criminalization of poverty – a principle

on access to justice needs to be explicitly stated

‐ Remove constitutional court and its duties be shared between the court of appeal and the supreme court

Clause 205 (1) approval by National Assembly to

have a clear threshold (at least 2/3 of members sitting)

To avoid the appointment being manipulated by the Executive

Article 206 (4) the notice period for resignation to be specified; our proposal at least one month

For accountability

Article 203: Delete The powers and functions of Constitutional Court can best be exercised by the Court of Appeal and the Supreme Court

Article 207 1 (d) define “incompetence” Some arms of the government may decide a judge who making rulings against it is incompetent

Article 209 (5) Delete The reference to a protectorate is outdated

Chapter 14: Devolved Government


Article 215, 216, 217, 218, 220: Delete

Regional governments structure will only increase costs, bureaucracy and result to inefficiency

Insert an article that provides for a mechanism for the county government to effectively administer

This will ensure administration at the local level is clearly stipulated

Chapter 15 Public Finance


247 (2) insert clause (c) to provide for a specific criteria to be used in determining allocation of national revenue

To avoid ambiguity and manipulation

247 (4) Delete For empowerment Article 248 (3) (h) needs to be inbuilt into the

constitution as opposed to leaving it to a legislation by NA

For affirmative action

249 (1) Rewrite clause to determines clear mechanism of accountability on consolidated fund between the different level of devolved government

For accountability

Insert a clause to say that the national government shall declare the amount of money raised and consolidated annually

For accountability

Article 250: Create a provision for people participation in determining the need for withdrawals from the Consolidated Fund

For accountability purposes

Insert clause in Section 253 to ensure that all conditions attached to borrowing or loans are made public before the loan is signed in.

For accountability

Insert clause in 255 to read: All public debts on the date of effect of this constitution must be declared publicly and all repayment schedules provided for scrutiny

For accountability

Insert a preamble under part 5 – Budgets - stating “National and Devolved Budgets should

To demonstrate how benefits accrue to the people

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demonstrate how they foster development and alleviate poverty”

Insert additional clause on punitive and deterrent sanctions on Article 261.

For effective management of resources

Article 262 (4) to include a section that prohibits that person from holding that and or any other public office

To enforce integrity

Article 262 (5) The audited books or items should be open for scrutiny by the public.

For accountability

263 (3) Delete the section The clause perpetuates corruption and mismanagement Article 265 (5): action by parliament needs to be

specific There should be established a council to monitor &evaluate public expenditure

For accountability purposes

Insert 271 3 (e) to read “ to formulate ways and means to alleviate poverty”

For economic and social growth to be sustainable

Chapter 16 Public Service


Article 272 (k) include youth For empowerment

Article 273: Insert a clause clearly stating the composition, number and appointing authority of Commission

Article 277 – the powers of TSC need to be devolved

To strengthen devolution

Article 278 (2) functions of Kenya Correctional Service to include contain and keep offenders in humane safe custody, facilitate administration of justice

To cater for the custodial and security functions

Article 279 (4) Commissioner General to hold office for one term of six years

To avoid complacency

There should be a provision for post-secondary institutions (public &private) teaching staff

For their recognition

There should be established a National Health Services Commission

This is an important sector for human development

Article 278 – insert a provision for the correctional services to re-habilitate the institutions and population of the correctional facilities

For the avoidance of doubt

Chapter 17 National Security


Article 280 (d) – Include a provision for merit To ensure that we have quality personnel

Article 281 (1) – insert (d) so as to include the Kenya Correctional Service

They have a security role

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Article 282 (1) include the Director General of correctional Service

The Correctional services have a role in security

283 (1) (a) Remove the mandatory provision for integration of foreign and military policies implied by “shall” in the article (1) heading

Can compromise National Security

Article 285 1 (b) add merit as a basis for recruitment

To avoid having incompetent people recruited

Article 289: Explicitly provide for absorbing of APs into the police service

This is because the Provincial Administration is proposed for scrapping

Article 285 (1): Appointment of Commandants to be through a proposal to parliament by the President and Defense Council

To check the presidential powers

Article 293 (2) (a) (b)(c) … the appointment should not be by President but by Parliament

As above

Insert an article providing for the establishment of an Oversight Mechanism on the conduct of Security Organs

For accountability

Insert a clause to ensure greater accountability to the citizens by the security agencies

To check against increased coercive capacity of the state in the face of increased anti-terrorism activities

Chapter 18 Commissions and Independent offices


Article 295 (2) include the Kenya Correctional Services Commission, National Culture and Heritage Commission, The National Health Services Commission

They are important commissions

Article 297 (2) (a) – appointment to take into consideration affirmative action, professionalism and the diversity of the people of Kenya

For accountability and inclusiveness

298 (2) Rewrite For clarity Include a clause that entrenches Devolution

For the Commissions to serve people better

Article 297 (6) locate liability in officer/office

For accountability

Article 298 (7) officer should be on half salary and no benefits except medical

To enforce discipline

Article 299 (e) appointment of staff to be subjected to the Ethics and Integrity provisions and other employment provisions that adhere to principles of diversity and gender equity

For there to be integrity

Chapter 19 Amendment to the Constitution


Article 306 (2): Have 25% as the threshold as opposed to 20%

To increase the threshold

Chapter 20: General Provisions


Article 310 (2) on the language… the Kiswahili to be the official language/language of legal reference

To enhance development of Kiswahili

Article 311: define the following1. Life 2. Minorities

They are not defined and need to for avoidance of doubt

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Article 311: the definitions of “persons” needs to be clearly set out and stated as “Kenyan citizen”

To avoid being misconstrued to introduce legal persons and enhance corruption

310 (7) “Sunday” to be deleted Other religions and or denominations observe other days 311: Include Prime Minister and Deputy PM in

the definition of state officers This has been left out

Chapter 21 Transitional and Consequential provisions


Article 313: Need to be clear on the timeframes of the commission. The eight other members need to be identified clearly

For avoidance of doubt

Article 315: Promulgation if not declared by State president to be automatic in 14 days

For avoid impunity by the president

Schedules Schedule 7 (3) The enforcement (sec 31) is not

legislated for in Schedule 6 To make it justiceable

Schedule 7 no 8 (2) provide that if a party is deregistered, the person to lose seat

To strengthen political parties

Schedule 7 (9) recast the article as it contradicts the National Accord

To avoid constitutional

Schedule 7 (10) Provincial Administration: delete clause 3 that states these people serve in the counties

This may defeat the effort of devolution and enhance impunity

Schedule 9 & 15 have contrary provisions in regard to “the principle and spirit” therefore they need to be harmonized

For harmony in the document

Schedule 7 24 - Ownership of land: replace no-citizen with “any person(s)/entity” and delete ‘unless otherwise revoked’

For clarity and as an effort to solve the land problem in Kenya

Include a Schedule on Devolution To have implementation done in phases

5.2 Conference Programme

Katiba Sasa! Campaign CSO convention

14TH – 15TH DECEMBER 2009: SPORTS VIEW HOTEL, KARASANI

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Theme: National consolidation conference: Harmonizing Civil Society Position on content issues in the Harmonized Draft Constitution

PROGRAMME

4.00 pm – 7.00 pm Arrival and Registration of Participants at the Sports View Hotel,

Kasarani (From outside Nairobi)

8.00 – 8.30 am Arrival & Introduction 8.30– 9.10 am Welcoming Remarks:

Technical team Invited Speakers

9.10- 10.10 a.m. HDC Analysis

Katiba Sasa Technical Team International Peer Review Team

10.10– 10.30 am TEA AND HEALTH BREAK 10.30 – 11.00 pm Group work – Thematic Groups 11.00 – 1.00 p.m. Report back to the plenary & Adoption of Resolutions and Common

Position 1.00 – 2.00 pm LUNCH AND HEALTH BREAK 2.00 – 3.00 pm Logistics and Departure

5.3. List of Participants

December 14, 2009 – Monday

December 15, 2009 - Tuesday

Katiba Sasa! Campaign · Issues in the Harmonized Draft Constitution was organized by the Katiba...

Documents

Transcript of Katiba Sasa! Campaign · Issues in the Harmonized Draft Constitution was organized by the Katiba...