PEOPLE’S DRAFT CONSTITUTION (ADOPTED IN BOMAS OF...

Koki Muli, Executive Director, Institute For Education in Democracy July 27th 2005. The views© expressed here are those of the author and are not necessarily those of IED.

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AN ANALYSIS OF THE REPORT OF THE PARLIAMENTARY SELECT COMMITTEE ON REVIEW OF THE CONSTITUTION OF KENYA AND ITS

IMPLICATIONS ON THE BOMAS DRAFT By Koki Muli©

The Parliamentary Select Committee on the Review of the Constitution of Kenya was re-constituted on May 5th 2005.1 The Select Committee (National Assembly) is recognised (under Cap 3A) as Organ of the Constitution Review, and in the exercise of its functions as with all the other Organs of the Constitution Review, it must:

(a) “Be accountable to the people of Kenya; (b) Ensure that the review process accommodates the diversity of the Kenyan

people including socio-economic status, race, ethnicity, gender, religious faith, age, occupation, learning, persons with disabilities and the disadvantaged;

(c) Ensure, particularly through the observance of the principles of the Third Schedule that the review process – (i). Provides the people of Kenya with an opportunity to actively, freely and meaningfully participate in generating and debating proposals to alter the Constitution; (ii). is, subject to this Act, conducted in an open manner; and (iii). is guided by respect for the universal principles of human rights, gender equity and democracy.

(d) Ensure that the final outcome of the review process faithfully reflects the wishes of the people of Kenya.”2

The Third Schedule of Cap 3A sets out the principles which the organs (including the PSC) and other stakeholders must particularly observe as follows:- “The Government of the Republic of Kenya, the organs of review of the Constitution, political parties, non-governmental organisations, and all Kenyans shall-

(i). Recognise the importance of confidence building, engendering trust and developing a national consensus for the review process; (ii). Agree to avoid violence or threats of violence or other acts of provocation during the review process; (iii) Undertake not to deny or interfere with any one’s right to hold or attend public meetings or assemblies, right to personal liberty, and the freedoms of expression and conscience during the review process, save in accordance with the law; (iv). Ensure that the Police shall protect the safety of all persons who attend meetings or exercise their other rights from violence from whatever source;

1 Established in accordance with Standing Order 153 and as stipulated in Section 10 of the Constitution of Kenya Review Act (Cap 3A). 2 Section 5 of Cap 3A


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(v). Ensure that the meetings of all organs of review are held in peace; (vi). Respect the independence of the Commission and its members; and (vii). Desist from any political or administrative action that will adversely affect the operation or success of the review process.

Constitutional Court Interpretation of the current Constitution in relation to the Review Process A legal challenge in the High Court by way of an originating summons dated 27th January 2004 and amended on 17th February 2004 by applicants, Rev. Dr. Timothy Njoya, Munir M. Mazrui, Kepta Ombati, Joseph Wambugu Gaita, Peter Gitahi, Sophie O. Ochieng, Muchemi Gitahi and Ndungu Wainaina asked the Constitutional Court to determine certain issues in relation to the review process. As a result of this legal challenge, the A-G was not able to receive the Draft Bill in his capacity as A-G but received it in his capacity as a delegate to the Bomas NCC. This legal challenge raised some serious questions which are important to the legality of the Constitution review process. Some of these include the following:

1. There were concerns regarding representation by delegates in the NCC. For example, Cap 3A treated Nairobi as a county council resulting in it being represented by only three (3) delegates when it has over 2,143,254 residents, while North Eastern Province with only 962,153 residents was represented by twelve (12) delegates. Furthermore, all districts irrespective of population were represented by three delegates each; for example, Machakos district with about 906,644 people was represented by three (3) delegates just as Nakuru district with 1,187,039, Keiyo district with 143,865 and Lamu district with 72,686 people.

2. The issue of the categories of delegates as set out in section 27(2) remained

an issue which was contentious in that many Kenyans felt that although Cap 3A was intensely negotiated by all sectors and therefore fairly representative, representation from politicians was rather overwhelming. This is because all members of the National Assembly, councillors, representatives from all registered parties, were the majority and the rest of Kenyans were represented only by 25% of the delegates (religious organisations, professional bodies, women’s organisation, trade unions and Non-Governmental Organisations registered at the commencement of the Act). In fact, Civil Society Organisations which are not registered as NGOs were not represented. These include Companies limited by guarantee, Trusts and other Charities and many other lobbies and organisations operating under other legal regime but not registered as NGOs. Therefore, in fact, in terms of voting majority, only politicians had the gravitas and the majority to carry the day on any issue and it may not be wrong to conclude that the Bomas Draft is political document. As such, although all shades of opinions were represented, representation by categories was unfairly distributed and since


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the NCC was a voting process, this meant that those with the numbers carried the day. Yet all registered political parties irrespective of their membership and representation were each entitled to one delegate to represent them in Bomas.

3. Further, there is the argument that minorities whatever their shade and

background must be protected by all means necessary, a democracy requires that the majority should not bully the minority, they should instead scrupulously protect them. However in the context of constitution making the constitution is being made for all, minorities and majorities alike and, the voice of all should be heard so that they can all own the constitution which will bind them together. Yet, “to accommodate minorities does not entail reversing the democratic equation by having minority dominance in representative forums… the composition of NCC was quite flawed and no amount of antecedent history of skewed representation in Parliament or elsewhere could wholly justify it.”3

4. The procedure of the review of the constitution through the NCC and the

referendum contravened the provisions of section 47 of the Constitution of Kenya. Therefore, the Bomas NCC process should not have begun without amendments to that section of the Constitution.

5. In any case since the object and purpose of the review of the constitution

was to ensure an all-inclusive, people-driven, and democratic review process, a referendum should have been automatic and not optional depending purely on the decisions of the NCC. Therefore section 27 and 28 of Cap 3A should have provided for mandatory referendum.

6. The issue of supremacy of the Constitution and the importance of

constitutionalism requiring a limited government under the rule of law need to be interrogated so as not to negate what the constitution stands for in the first place. This means that no organ of government (Executive, Legislature and the Judiciary) is more powerful or important than the other although with different functions, only the Constitution is supreme – superior.

The Ruling of the court (the majority ruling by AG Ringera, J and Mary Kasango, Ag. Judge) was the following:

1. That in a democracy, and Kenya is one, the people are sovereign. The sovereignty of the Republic is the sovereignty of the people and all Governmental power and authority is exercised on behalf of the people. That the Constitution gives every person in Kenya an equal right to review the Constitution, which right includes the right to ratify the Constitution through a national referendum.

3 Above Njoya and others case, page 58.


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This means that, the sovereignty of the Republic of Kenya vests in its people and they have equal right to exercise that sovereign power. The Court found no grounds to rule that the applicants were discriminated against and that the Bomas NCC was representative of all interests, concerns and aspirations of all Kenyans and the process was inclusive, participatory and people-driven. Thus since the Court ruled that the Bomas NCC was legally constituted therefore the Bomas Draft Constitution is a legally valid document.

2. That if the people of Kenya have to have an abiding loyalty and reverence to the

constitution they must be able to exercise their constituent power in a compulsory referendum and this is not negotiable. Therefore section 27(5), (6), and (7) of Cap 3A are unconstitutional and invalid (null and void).

This means that, even if there was total consensus and there were no issue(s) of contention, the Draft Constitution must be subjected to a referendum where the people of Kenya will have the last say in the review of their constitution in a mandatory referendum. In this regard, section 27(5), (6), and (7) of Cap 3A had to be amended to include a mandatory referendum.

3. The ruling of the court with regard to section 47 of the Constitution was that

Parliament has no power under this provision to enact a new Constitution to replace the current one. The court said

“Parliament may amend, repeal and replace as many provisions as desired provided the document retains its character as the existing Constitution. A new Constitution cannot by any stretch of the imagination be the existing Constitution as amended and the word‘re-enact’ does not mean the replacement of the constitution with a new one, it simply means to enact again, to revive. It is thus crystal clear that alteration of the Constitution does not involve the substitution thereof with a new one or the destruction of the identity or existed of the Constitution altered. ”4

“Parliament being one of the creatures of the Constitution it cannot make a new constitution. Its power is limited to the alteration of the existing Constitution only.5

“The application of the doctrine of purposive interpretation of the Constitution leads to the same result. The logic goes this way. Since (i) the Constitution embodies the peoples sovereignty, (ii) constitutionalism betokens limited powers on the part of any organ of the Government; and (iii) the principle of supremacy of the Constitution precludes the notion of unlimited powers on the part of any organ; it follows that the power vested in Parliament by Sections 30 and 47 of the Constitution is a limited power to make ordinary laws and amend the Constitution: no more and no less.”6

4 Ruling of Justice Ringera, page 69 - 70. 5 Ruling of Justice Ringera, page 71. 6 Ruling of Justice Ringera, page 71.


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This means that Parliament cannot make a new Constitution for Kenya because the power to do so lies with the people of Kenya and as such Parliament cannot open and discuss the Bomas Draft Constitution in the manner proposed in the Constitution of Kenya Review (Amendment of 2004) Act (commonly known as the Consensus Act). Essentially this means two things. One, that, if Parliament is dissatisfied with the Bomas Draft, it must return it back to Bomas delegates or to another group of Kenyans fairly representative of all Kenyan stakeholders to open up the Bomas Draft Constitution for discussions and review. Two, Parliament can have the Bomas Draft ratified as it is in a referendum and use Chapter 19 of the Bomas Draft Constitution to amend the contentious provisions immediately the new Constitution is adopted. Three Parliament can pass new legislation for the constitution of a Constituent Assembly to re-start the whole review process afresh. However, Parliament cannot itself open the Bomas Draft for discussion and in doing so it is disobeying the Ruling of the Constitutional Court and therefore, flouting the very Constitution that it swore to uphold and safeguard.

4. Further, the court ruled that section 28(4) of Cap 3A is inconsistent with section 47

of the Constitution because it invites the National Assembly7 (NA) to assume a power it does not have – the power to enact a new constitution. Also, the Court argued that the provision (section 28(4)) takes away the Constitutional discretion of the NA to accept or reject a Bill to alter the Constitution, and directs the National Assembly to enact the Bill presented to it into law.8 The Court further ruled that Cap 3A has no powers to fix a time table for Parliament as it does in section 28(4) because section 47 read with section 56 of the Constitution do not allow that. Section 28(4) supposes that the Parliament enacts Bills into law but the court ruled that the Parliament has no such powers, it only passes Bills; the enactment is the function of the Parliament comprising the NA and the President.9

This means, Section 28(4) of Cap 3A is inconsistent with the Constitution of Kenya and therefore, it is void or illegal. Section 28(4) provides as follows:

“At the expiry of a further period of fourteen days of the publication of the Bill to alter the Constitution, the Attorney-General shall table the same together with the final report of the Commission before the National Assembly for enactment within seven days of the day when the Assembly next sits.”

The reasons for its illegality or its contravention of the current Constitution are as follows:

a. It requires Parliament to enact the Bill to alter the Constitution into law within 7 days; in effect directing Parliament to entertain and pass a Bill for the

7 Section 30 of the Constitution provides that “the legislative power of the Republic shall vest in the Parliament of Kenya, which shall consist of the President and the National Assembly.” 8 Njoya and Others Ruling, page 79. 9 Njoya and Others Ruling, page 80.


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replacement of the Constitution with a new one. This contravenes the current Constitution because it invites Parliament to exercise power it does not have (remember the earlier Ruling of the same case that the sovereign and constituent power to review and change the Constitution vests with the people of Kenya, not with Parliament), to enact a new Constitution.

b. It takes away the discretion of Parliament to accept or reject a Bill to alter the Constitution by directing and commanding the National Assembly to enact the Bill (it even goes further as to fix the time-frame within which the National Assembly must complete the duties it is directed to carry out). Fixing of the time-frame for Parliament offends section 56 of the current Constitution which empowers the National Assembly to regulate its own procedure and time-frames through its Standing Orders.

c. It also assumes that the National Assembly enacts Bills into laws which

according to section 30 of the current Constitution is the function of the Parliament (consisting of the National Assembly and the President); the President according to section 46 of the current Constitution assents to Bills to make them law (though these observations by Justice Ringera were not prompted by advocates, are important and help us understand further the importance of the provision in question – section 28(4) of Cap 3A).

It is important to note that, the Ruling did not find the whole of Cap 3A unconstitutional because of inconsistency with the current Constitution; it only found that section 28(4) of Cap 3A contravenes section 3 of the current Constitution which (Section 3 of the current Constitution) provides as follows:

“This Constitution is the Constitution of the Republic of Kenya and shall have the force of law throughout Kenya and, subject to section 47, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.”

It is also important to note two other things: One, that, the Ruling was made after the Bomas Draft Constitution was already adopted, and two, that, what is provided for under section 28(4) of Cap 3A has not yet been effected, that is to say, Parliament has not yet enacted the Bill to alter the Constitution. This means, that there is still an opportunity for Parliament to either (i) repeal the Constitution of Kenya Review (Amendment) Act, 2004 (commonly known as the Consensus Act) and amend section 28(4) of Cap 3A to make it consistent with section 47 of the current Constitution or (ii) seek Judicial review of the Njoya and others case to challenge or seek a different interpretation of section 47 of the current Constitution.

The legality and constitutionality of the final phase (April 22nd to November 22nd 2005) of the review process The legality and the constitutionality of the review process after enactment of Constitution of Kenya Review (Amendment) Act, 2004 (commonly known as the Consensus Act) have always been contested. The Constitutional Court interpretation of Section 47 of the current


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Constitution is that a new Constitution cannot be adopted to replace the current Constitution without amendment to the current Constitution, specifically this same Section 47. This is because the people-driven constitutional review process, including the Referendum are not envisaged in the current Constitution, more so after the constitutional court interpretation of the meaning of Section 47 by Justice Ringera and the then Ag. Judge Mary Kasango. In this decision ‘alter’ was interpreted as allowing only amendments to the constitution which do not change the entire character or replace the Constitution. Therefore, under the current constitutional dispensation, we cannot replace the current constitution legally and constitutionally without amending and expanding its Section 47. Furthermore, Section 47 of the current Constitution empowers only the Parliament to engage in the process of amending and altering the constitution but it does not empower the people of Kenya to make a new Constitution or replace the current one and the Referendum as an automatic organ of the review process is not envisaged in section 47 of the current Constitution. Making a presentation on behalf the National Alliance for Change (NAC) to the Constitution of Kenya Review Commission on March 7th 2002 at Charter Hall Nairobi, accompanied by President Mwai Kibaki, the late Hon. Kijana Wamalwa, Hon. Kituyi, Hon. Materi Keriri, Hon. Beth Mugo, among others; Hon. Kiraitu Murungi, (now the) Minister of Justice and Constitutional Affairs said (quoted verbatim) as follows:

“The ideal constitution making process deals with the environment in which the constitution review is being undertaken. National Alliance for Change (NAC) believes that the constitutional review process should be conducted in a conducive environment which creates sufficient space for every Kenyan to be involved in every stage of the review process. Every Kenyan must be able to express his or her views on any subject safely, really open and without fear. Therefore restrictions imposed by the State on freedom of movement, expression, assembly, association and access to electronic media should be removed forthwith. …NAC believes the focus of all State endeavours should be the individual citizen and the social groups in which the individuals live.” (Hon. Kiraitu Murungi).10

Needless to state the principles which must govern the review process as provided above in Cap 3A have not been faithfully adhered to in the final phase of the review process. In fact as it will be clear in the table below, the amendments to the People’s Draft Constitution adopted in Bomas of Kenya contained in the Kilifi PSC report, and approved by Parliament on 21st July 2005 fundamentally change the People’s draft Constitution and does not faithfully reflect the wishes of the people of Kenya, as required in Section 5(d) of Cap 3A. In any case, the acrimony and the manner in which the vote of 21st July 2005 was taken in Parliament cannot be said have “recognised the importance of confidence building, engendering trust and developing a national consensus for the review process,” as required above by the law – Cap 3A Third Schedule. There was no national consensus in the Select

10 Page 4 of the Verbatim Report.


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Committee either. Members of the official opposition political party and some members of the Ruling Party, National Rainbow Coalition Party (NARC) did not participate in the work of the Select Committee. Only MPs who were supportive of or friendly to the “government” – the Minister of Justice and Constitutional Affairs and the President – actually participated in the work of the Select Committee. This means that the Kilifi changes to the Bomas Draft Constitution were made and approved without consensus or national confidence – dissent or contrary views were not entertained or even considered – the government won through a vote and division among MPs but not through consensus as is required by Cap 3A. After the appointment of its chairman, Hon. Simeon Nyachae, the Select Committee was mandated to compile and present to the National Assembly contentious issues it identified in accordance with the Section 27(2) of the Consensus Act. On 30th of June the PSC presented to the National Assembly for approval a list of contentious issues as contained in:-

(i). Chapter 4: Citizenship

(ii). Chapter 6: Bill of Rights

(iii). Chapter 11: The Legislature

(iv). Chapter 12: The Executive

(v). Chapter 13: Judicial and Legal Systems

(vi). Chapter 14: Devolved Government

(vii). Chapter 18: Constitutional Commissions The above chapters were approved as containing contentious issues. The Chairman of the PSC successfully moved a motion to reject and expunge the Naivasha Accord from the records for consideration. This meant that the PSC was going to determine from the above chapters what they considered as contentious without being restricted to the earlier identified contentious issues from Naivasha or any other place. The PSC decided to identify other chapters which were not approved for consideration by Parliament and even prepared a draft Constitution Bill and annexed it to its report from Kilifi. However, upon presentation in Parliament, the Parliament on 21st July 2005 rejected and expunged the Kilifi Draft Constitution and all other contentious issues and chapters considered by the PSC which had not been approved on 30th June 2005. Therefore, what was accepted was the recommendations on the above seven chapters. The procedure used in Parliament to approve the Kilifi report and changes to the Bomas Draft did not adhere to the Parliamentary Standing Orders, the Consensus Act, or even Cap 3A. The issues were not discussed and considered one by one, nor did the Parliament even discuss the CKRC report or the Bomas Draft Constitution as required by the law. They only voted acrimoniously for the report and approved the recommendations without consideration. According to the Consensus Act, Parliament is actually supposed to hand


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over the report officially to the Attorney General. This means that this is supposed to be done through a motion in Parliament to hand over the report. This was also not done, yet the AG has begun to prepare the Draft Constitution. The following table presents the Kilifi amendments as approved by Parliament on 21st July 2005, as contained in parts one, two and three of the Report of the Select Committee on the Review of the Constitution of Kenya presented alongside the Bomas Draft Constitution provisions as adopted on 15th March 2004. The report of the Select Committee, parts one, two and three, analysed below relates only to the chapters approved by Parliament as containing the contentious issues on 30th June 2005. The rest of the chapters considered by the Select Committee were expunged from the report as being outside what was approved and therefore are not part of this analysis. This means that the only changes authorised and approved by Parliament on the People’s Bomas Draft and expected on the Draft that the Attorney General will publish will only be in seven chapters of the Bomas Draft Constitution, listed above. However, in relation to this chapters the amendments effected in the Kilifi Draft Constitution are part of the report as approved and cross-reference should be expected. PEOPLE’S DRAFT CONSTITUTION (ADOPTED IN BOMAS OF KENYA ON 15TH MARCH 2004)

KILIFI/PSC CHANGES TO THE DRAFT CONSTITUTION (BY PARLIAMENT ON 21ST JULY 2005)

THE IMPLICATIONS AND MEANING OF THE CHANGES TO THE BOMAS DRAFT CONSTITUTION

Citizenship

Citizenship and marriage

Article 17(1) A person who has been married to a citizen for a period of at least seven years is entitled, on application, to be registered as a citizen.

Citizenship by naturalization

Article 18. A person who has been lawfully resident in Kenya for a continuous period of at least seven years, and who satisfies the conditions prescribed by an Act of Parliament, may apply to be naturalized as a citizen.

Children found in Kenya and adopted children

Article 19(1) A child who is

Citizenship Article 17(1) the words “is entitled, on application” were deleted and replaced with “may apply” to reflect the position that persons married to a citizen will not automatically gain citizenship upon application though they have the option to apply if they so wish. Article 18 citizenship by naturalisation retained as in Bomas Draft while the conditions for naturalisation would be provided for in an Act of Parliament. Article 19(1) – children found in Kenya and adopted children – delete the words “is entitled on application” and replace with “may apply.” Article 20(1) and (2) be

Citizenship The words “is entitled on application” creates a right that a person making that application will be entitled to whatever they are applying for automatically as a right. The change to “may apply” takes away the inherent right or entitlement on application. It means that one may apply but may not necessarily succeed in the application. It makes it discretionary for the person processing the application to decide whether or not to grant the request in the application. The introduction for legislative requirement (Article 18) is for details and


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not a citizen and who is adopted by a citizen is entitled on application to become a citizen.

Dual citizenship

Article 20(1) A person who is a citizen does not lose citizenship by reason only of acquiring the citizenship of another country.

(2) A person who as a result of acquiring the citizenship of another country ceased to be a Kenyan citizen is entitled, on application, to regain Kenyan citizenship.

(3) Parliament shall enact legislation providing for conditions upon which citizenship may be granted to individuals, other than individuals referred to in clauses (1) and (2), who are citizens of other countries.

rephrased in the light of (Article 16 citizenship by birth) (1) Kenyans who are citizens by birth do not lose citizenship by acquiring the citizenship of another country. Clause (1) persons, who have ceased to be citizens as a result of acquiring the citizenship of another country, may apply to regain citizenship if the only reason for losing citizenship was the acquisition of citizenship of another country.

administrative purposes, so that the Constitution retains the principles while legislation provides for the regulatory and administrative framework including details on processes and other conditions. Article 20(3) of the Bomas Draft provides that the conditions for granting of citizenship will be provided in legislation, which should also cover issues proposed in Article 18 by the Kilifi report.

Bill of Rights

Limitation of rights

Article 33(5) The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Islamic law to persons who profess the Muslim faith in relation to personal status, marriage, divorce and inheritance.

Right to life

Article 34(1) Every person has the right to life.

(2) The life of a person begins at conception.

(3) Abortion shall not be

Bill of Rights Article 33(5) – Limitations of Rights – Retained as in Bomas Draft Constitution Article 34(2) Retained as in Bomas Draft Constitution Article 34(3) was deleted and replaced with a new clause prohibiting abortion except as provided for by an Act of Parliament. The PSC recommends that a provision be added in Article 34(1) “that one has a right to life, except in the circumstances prescribed by law” Death penalty – The PSC recommends that “the death penalty should be

Bill of Rights Amidst great lobbying some people felt that human rights should not be limited in the Constitution, even on the grounds of Personal law or any other grounds. The recommendations made by the PSC and approved Parliament to limit and restrict enjoyment of human rights and their enforcement deals a blow to the very reason why the clamour and struggle for a new Constitution begun. In the words of Hon Murungi now Minister of Justice and Constitutional Affairs making a presentation to the


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permitted unless, in the opinion of a registered medical practitioner, the life of the mother is in danger.

Freedom from discrimination

Article 36(1) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

(2) A person shall not discriminate directly or indirectly against another person on any ground in terms of clause (1).

(3) A person may not be compelled to indicate or define that person’s ethnicity or race.

(4) Despite clause (1), the State shall take legislative and other measures including but not limited to affirmative action programmes and policies designed to benefit individuals or groups who are disadvantaged, whether or not as a result of past discrimination, but any such measure taken shall –

(a) adequately provide for any benefits to be on the basis of genuine need; and

(b) be permissible in terms of Article 33.

Freedom of the media

Article 50(1) Freedom and

retained; and any exceptions put in legislation.” Article 36 Freedom from discrimination – The PSC after deliberating on the clause providing for affirmative action recommended that, since it was a temporary measure subject to review by Parliament, it should be incorporated under a New Clause (5). Article 50 Freedom of the Media – in recognition of the need to place limitations to this freedom… the PSC recommends insertion of a new clause (6) providing for the enactment of legislation limiting the freedom of media in the interests of defence, public safety, public order, public morality or public health. Additionally for the protection of reputations, rights, freedoms and private lives of persons engaged in legal proceedings and prohibition of disclosure of information received in confidence. Article 51(4) – Access to Information – PSC wants this clause redrafted to provide for an Act of Parliament to restrict access to information that could compromise defence, public security, public safety, public order, public morality, public health or State security. Article 59A – General Provisions on interpretation of social economic rights – It was

CKRC in Charter Hall Nairobi on 7th March 2002 “the current (Constitution) bill of rights does not provide an adequate framework for protection and enjoyment by persons in Kenya of internationally recognised human rights. …it has been aptly called the Bill of exceptions. NAC proposes that the new Constitution contains a modern Bill of Rights which includes NOT ONLY the classical civil and political rights such as the right to life, freedom of expression, press, freedom of information, freedom of association and assembly, also economic, social and cultural rights such as the right to food, shelter, clean water, education and health and also the new generation rights such as the right to sustainable development, protection of environment and the right to peace.” Hon. Murungi also talked of the need to protect the rights of children, workers, minorities and other disadvantaged groups. He rightly stated that excessive limitations and restrictions to human rights as those approved in the Kilifi report on the freedom of media, access to information and freedom from discrimination were detrimental and undermine the protection and enjoyment of human rights. He said such restrictions must never be allowed in a


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independence of electronic, print and other media of all types are guaranteed.

(2) The State shall not –

(a) exercise control over, or interfere with, any person concerned in broadcasting, production or circulation of any publication, or in the dissemination of information by any medium; or

(b) harass or penalize any person for any opinion or view, or the content of any broadcast, publication or dissemination.

(3) Broadcasting and other electronic media have freedom of establishment, subject only to licensing procedures that –

(a) are designed to ensure the necessary regulation of the airwaves and other forms of signal distribution; and (b) are independent of control by Government, political interests or commercial interests.

(4) All State-owned media shall be independent and impartial and shall afford fair opportunities and facilities for the presentation of divergent views and dissenting opinions.

(5) Parliament shall enact legislation that –

(a) makes reasonable provision for equitable allocation of airtime by State-owned and other specified categories of broadcasting media, to political parties

observed that Article 30(2) offered a weak qualification of social and economic rights and these qualifications needed to be strengthened to be dependent on the basis of resources available to the State. Article 61 – Health The PSC recommends that the article be retained as in the Bomas Draft Constitution.

Bill of Rights if it is to be effective and enforceable. The people of Kenya deserve what Hon. Murungi said in 2002. These are rooted in the concept and philosophy of democracy, human rights and good governance whose nexus to development, economic empowerment and peace is very close. The freedom of the media is paramount in any democratic, robust and open society. There are often laws which provide for the parameters for the exercise and enjoyment of such freedoms. These parameters and restrictions are never meant to undermine the right or freedom but to ensure responsible exercise and enjoyment of such rights. These are laws relating to State security for example State secrets laws, libel, defamation and the right of reply. These in themselves are sufficient safeguards to the freedoms of media and of access to information. The current Constitution as the Hon. Minister stated is so full of provisos and exceptions that it is not enforceable. There are limitations on the ground of public health, morality, public interests, state security and all manner of undefined restrictions and limitations which not only undermine the protection and enjoyment of human rights in Kenya but sabotage any efforts at enforcement. This


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either generally or during election campaigns; (b) regulates freedom to broadcast in order to ensure fair election campaigning; and (c) provides for the establishment of a body which shall be independent of government or political control and reflective of the interests of all sections of the community, and which shall set media standards, and regulate and monitor compliance with those standards.

Access to information

Article 51(1) Every citizen has the right of access to –

(a) information held by the State; and (b) any information that is held by another person and that is required for the exercise or protection of any right or freedom.

(2) Every person has the right to demand the correction or deletion of untrue or misleading information that affects that person.

(3) The State shall publish and publicize any important information affecting the nation.

(4) Parliament shall enact legislation to provide for access to information.

Implementation of rights and freedoms

Article 30(2) The State shall take legislative, policy and other measures to achieve

is the fundamental reason why we set out to make a new Constitution with a new and robust Bill of Rights that responds to the challenges and the needs of our times. The recommendation of the Kilifi report that “the death penalty should be retained; and any exceptions put in legislation” undermines the right to life. This means that if the provision for death penalty is grounded in the Constitution no legislation can contradict it by providing exceptions to it because in case of a conflict of laws the Constitution prevails. If the PSC wanted to genuinely protect the right to life, then they should have done so in the Constitution and not make recommendation for legislation to do so. Further, the provisions on the right to life begins at conception requires definition and a framework of enforcement. The biggest loser after the Kilifi changes is the ordinary Kenyan to whom social, economic and cultural rights are fundamental. These rights have been subjected to the old un-progressive remit “dependent on availability of resources.” These Kilifi recommendations also undermine progressive efforts of the current government to provide free primary education, affordable health care amongst other things. These are the rights that the Hon.


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the progressive realisation of the rights guaranteed under Articles 60, 61, 62, 63, 64, 65 and 66.

Health

Article 61(1) Every person has the right to health, which includes the right to health care services, including reproductive health care.

(2) No person may be refused emergency medical treatment.

Minister demanded for including even the right to clean water, environment, development and the right to peace. These are the rights which will facilitate Kenyans realisation of their potential and life in dignity and humanity. These rights have been taken away from Kenyans.

The Legislature

Membership of the National Assembly

Article 123(1) The National Assembly shall consist of –

(a) one member elected from each constituency as may be provided by law; (b) one woman elected from each district, each of which shall comprise a single-member constituency; (c) fourteen members elected by marginalized groups; and (d) the Speaker, who shall be an ex officio member.

(2) Elections under clause (1)(c) shall be by electoral colleges of the respective marginalized groups as provided for by legislation.

(3) A member referred to under clause (1)(c) shall serve as such a member for only one term.

(4) Parliament shall enact legislation to give effect to this Article.

Qualifications and

The Legislature Article 123(1)(3) – Membership of National Assembly – PSC recommended that the appropriate meaning of the term “marginalised groups” be determined by Parliament to be consistent with Article 307. The PSC recommended that: (i) Delete provisions of (14) Members of Parliament for marginalised groups (ii) Affirmative measures are limited to one term, reviewed every ten (10) years and either gender must be represented by at least one third; all these are in legislation. The following changes were recommended:- (i)that, the Senate be deleted from the Bomas Draft (ii)that, the term “district” be used in place of “county” (iii)consequent, extensive changes be effected in the following Articles:- Article 120 – Delete all provisions relating to the Senate

The Legislature The legislature in the Bomas Draft Constitution is written to respond to a number of concerns as follows:- (i) It addresses the concerns of unfair and inequitable representation of the people living in Kenya. Although there has always been the provision for nominations, the principle of ensuring every person in Kenya is genuinely and fairly represented has never been satisfied by the practice of nominations. Often nominations are political rewards which do not pay attention to representation of women, minorities, people with disability, marginalised groups and communities, youth and other special categories of people living in Kenya who require representation. Therefore the principle adopted by the initial CKRC draft Constitution which was modified and changed in Bomas remains the best


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disqualifications of members

Article 124(1) Unless disqualified under clause (2), a person is eligible to be a member of Parliament if that person –

(a) is a citizen by birth; (b) is registered as a voter; (c) satisfies any educational, moral and ethical requirements prescribed by this Constitution or legislation; and (d) in the case of a candidate for election to the National Assembly –

(i) is nominated by a political party; or

(ii) being an independent candidate, is supported by at least five hundred registered voters in the constituency concerned in the manner determined by the Electoral and Boundaries Commission.

(2) A person is disqualified from being elected a member of Parliament if that person –

(a) holds a State office or public office, other than as a member of Parliament; (b) is of unsound mind; (c) is an un-discharged bankrupt; (d) is serving a sentence of imprisonment of at least six months; (e) has, at any time in the immediately preceding ten years, served a term of imprisonment for the commission of an offence in Kenya, if that sentence was for a period of at least three

Article 122 – Delete the whole Article Article 134 – Delete the whole Article Article 141 – Delete the whole Article (iv) Other consequential changes due to removal of the Senate are set out in part two of this report. The PSC recommended inclusion of affirmative action for women and other marginalised groups and that the particulars are in an Act of Parliament. Article 124 – Qualifications and disqualifications – Delete the words “gross misconduct.” The PSC recommends that Clause (1)(a) be deleted. Add a proviso that, “provided that a candidate for presidency must be a citizen by birth.” Article 125 – Election of Members of Parliament The PSC made consequential changes in clauses (2) and (3) and a cross reference to Article 156(2) in this Article. In the light of there being no second chamber (Senate), amendments were made in the following Articles:- (i) Article 126 – Vacation of office of Member of Parliament (ii) Article 128 – The Speakers and Deputy Speakers of Parliament (iii) Article 129 – Presiding in Parliament (iv) Article 131 – Clerks and staff of Parliament (v) Article 132 – Exercise of Legislative powers

approach – proportional representation. The Bomas draft also made proposals to deal with past imbalances and to foster justice democracy and fair representation. Kilifi has taken all these away. All the other proposals in the Kilifi report already exist in the Bomas Draft in better provisions which will ensure the practice if nothing of some form of equitable representation. (ii) The Bomas draft constitution provided for a Parliament strong enough to provide adequate and effective checks and balances to the Executive. In fact as Hon. Murungi says in the same presentation at Charter Hall “Parliament has been reduced to a mere rubberstamp of the President and NAC insisted on a strong Parliament which should be a powerful voice of the people.” He also agreed that there must be fair and equitable representation to ensure good governance and democracy. (iii) The bi-cameral legislature provided in the Bomas draft constitution was aimed at ensuring that we have real and genuine representation of the people and especially provided to serve the devolved government, to check the excesses of the National Assembly and to provide an effective forum for the impeachment of the


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years; (f) has been removed from a State office or public office on grounds of gross misconduct; or (g) has been found in accordance with any law to have misused or abused a State office or public office or in any way to have contravened the principles of Article 97.

(3) A person is not disqualified under clause (2) unless all possibility of appeal or review of the sentence or decision has been exhausted.

Marginalized groups

Article 124A(1) Parliament shall ensure that all categories of Kenyan citizens are represented in its organs;

(2) Despite the generality of clause (1), Parliament shall ensure representation in Parliament of marginalized groups, which include -

(a) women; (b) persons with disabilities; (c) youth; (d) ethnic and other minorities; (e) older members of society; (f) trade unions; (g) geographically marginalized communities.

(3)Parliament shall enact legislation to give effect to this Article.

(vi) Article 134 – Consideration of the other house was deleted (vii) Article 135 – Presidential assent and referral (viii) Article 136 – Coming into force of law (ix) Article 138 – Quorum (x) Article 141 – Decisions of Senate deleted PSC recommended amendments be made on the terminology in Articles:- (i) Article 142 – Regulation of procedure (ii) Article 143 – Power to call for evidence (iii) Article 144 – public access and participation (iv) Article 146 – Registry of enactments (vi) Article 147 –Seat of Parliament (vii) Article 148 –Life and prorogation of Parliament (viii) Article 149 – Parliamentary Service Commission

President when necessary. This upper chamber was going to ensure that the current concentration of powers in the NA does not continue because it undermines and sabotages democracy. Without it, Parliament is the judge, the jury and the hangman and MPs will invariably continue to serve their own personal interests as opposed to the interests of the people they should rightfully be serving. The Hon. Murungi in his presentation stated the need for a Constituency Development Fund, we are happy to note this together with free primary education were some of the issues that this government was passionate about and has already implemented. Things may not be perfect but reviews and changes are being made to ensure that these services are made more meaningful to the people of Kenya. The provisions for a Bi-cameral and other provisions in the Bomas Draft Constitution represent what the people of Kenya wanted.

The Executive

Structure of the National Executive

Article 151The executive authority of the Republic at the national level of

The ExecutiveThe PSC recommended that:- (i) Executive authority vest in the president who will be the Head of State and Head of Government; (ii) The Articles on the

The ExecutiveThe CKRC must have paid a great deal of attention to the presentation made to them by the NAC. In fact, the Bomas Draft significantly reflects the principles and


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government is vested in the President, the Deputy President, the Prime Minister, and Ministers, all of whom, in the performance of their respective functions, shall work in harmony for the good of Kenya and the progress of the people of Kenya.

Part II – The President and Deputy President

Authority of President

Article 152 (1) There shall be a President of the Republic.

(2) The President –

(a) is the Head of State, Commander-in-Chief of the Kenya Defence Forces, and the Chairperson of the National Security Council; (b) is a symbol of national unity, and has responsibility to promote and enhance the unity of the nation, safeguard the sovereignty of the Republic, promote and respect the diversity of the people, and the communities of Kenya; and (c) shall uphold, safeguard, and respect this Constitution and ensure the protection of human rights and fundamental freedoms and the rule of law.

(3) The powers of the President shall be exercised in accordance with this Constitution and the laws.

(4) The President shall not hold any other public office

election and impeachment of the President and the power and functions of the Prime Minister be reconsidered in light of (i) above. Article 150(3) – principles of executive authority – Delete Article 151 – Structure of national executive authority of the Republic Be renamed “Executive Authority of the Republic” Article 152(2)(a) – Authority of President – add words “Head of Government” to reflect authority of the President Article 153 – State Functions of President (i). The Article be amended to specify the powers and functions of the President and to allow the President to dismiss the prime Minister, Deputy Prime Ministers, Ministers and Deputy Ministers. (ii) Article 153(2)(a)(iii) – delete the words “not less than fifteen and not more than twenty ministers.” (iii) Article 153(7)(d) delete the words “advice of the Ethics and Integrity Commission.” Add the words “in accordance with an Act and terminate such appointments subject to the approval of Parliament. Article 154 Legislative functions of the President The Article be deleted and replaced with a new Article 154A to provide for the curtailment of powers of the

ideals that were proposed by Hon Murungi in March 2002. He said for example “NAC believes the enormous powers vested in the presidency have transformed the Kenyan President into an authoritarian imperial monarch exercising feudal powers. The president is both head of State and Head of Government. The President has the ultimate control of the Armed forces, the police, the civil service, parliament, judiciary the ruling party… the Presidency has more power than those enjoyed by the government at the height of colonialism. NAC proposes that the powers of the president be drastically reduced and that the powers of the Head of Government be exercised by the Prime Minister.” These proposals were adopted by the Ghai CKRC and included in the Bomas Draft Constitution. Now the Kilifi proposals changes all that. In fact, even the Prime Minister will not be appointed from the Party or the Coalition of Parties with majority of MPs, s/he will be appointed from amongst MPs. This means that the PM is nothing but a prefect of the his or her Cabinet colleagues and plays the role of the current vice-president, while it is not clear what the Deputy President will actually be doing. The impeachment powers of the Parliament have also


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or any elected or appointed office within a political party.

State functions of President

Article 153(1) The President-

(a) shall address the opening of each newly elected Parliament; (b) shall address a special sitting of Parliament once each year; (c) may address Parliament at any other time; (d) shall, once every year -

(i) report, in an address to the nation, on all the measures taken and the progress achieved in the realization of the national goals, values and principles set out in Chapter Three; and (ii) cause to be published in the Gazette the details of the measures and progress referred to in sub-paragraph (i).

(2) The President, in accordance with this Constitution, shall appoint and may dismiss–

(a) the Cabinet consisting of-

(i) the Prime Minister; (ii) the two Deputy Prime Ministers nominated by the Prime Minister; (iii) not less than fifteen and not more than twenty Ministers nominated by the Prime Minister.

(b) not less than fifteen and not more than twenty Deputy Ministers nominated by the Prime Minister; (c) the judges of the Superior Courts of record; (d) any

President. Article 157(d) and (e) Qualifications and disqualifications for elections as President – deleted to allow a presidential candidate to be parliamentary candidate where the winner of the presidential election will vacate his seat to allow for a by-election. Article 157(f) deleted and replaced with the following new Clause (9) “has been found in accordance with any law to have misused or abused a State office or public office or in any way to have contravened the principles of Article 97.” Article 158(4) – Procedure at Presidential election the percentage of district should be increased to ensure that a President is popularly elected. Bomas draft provision retained. Article 162 – protection from legal proceedings PSC recommends an addition of a proviso to read “the President is subject to the Constitution and the law.” Article 164 Impeachment of the President – New procedures on the impeachment recommended as follows: (i) Clause (1) sets out procedural aspects of impeachment and the grounds. The president can be impeached if he has violated the Constitution and is guilty of the Conduct that

been drastically reduced. So that the Parliament will actually continue playing the role of a rubberstamp. The process of impeachment as proposed in the Kilifi changes is such that it is in-effective and easily challengeable, in fact, the President can easily mobilise MPs (simple majority) against any move to impeach him or her. The Kilifi changes effectively weakens Parliament by reducing its powers of approval, oversight and to provide checks and balances. For example most of the appointments to the public service were subject to Parliamentary approval in the Bomas draft, however, now the President has absolute power to make these appointments. The president also makes these appointments without consulting the Prime Minister as was provided for in the Bomas Draft. The President also appoints and fires the Prime Minister Deputy Prime Ministers, Ministers and their Deputies without reference to Parliament. Indeed, the Prime Minister is actually appointed from just among the MPs but not from the Party or coalition of Parties with the majority. This gives the President incredible powers of control over the Executive. The Prime Minister and the Deputies will literally serve at the


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other public officer who the Constitution requires the President to appoint, subject to the applicable provisions of the Constitution or legislation.

(3) With the prior approval of Parliament, the President may sign instruments of consent by the Republic to be bound by treaties.

(4) After approval of the Cabinet, the President may, in accordance with the advice of the Cabinet and subject to Article 76 –

(a) declare a state of emergency; or (b) declare war.

(5) With the prior consent of Parliament, the President may-

(a) appoint Commissions of Inquiry; or (b) sign instruments of consent by Kenya to be bound by international agreements in accordance with Article 121.

(6) The report of a Commission of Inquiry appointed by the President shall be laid before Parliament within twenty-one days of the receipt of the report by the President.

(7) The President may –

(a) appoint high commissioners, ambassadors, and diplomatic and consular representatives with the approval of the National Assembly; and (b) receive foreign diplomatic and consular representatives;

is prejudicial to the interests of the Republic or has brought the office of the President into disrepute. (ii) Clause (2) the provisions that require the approval of the Motion of Impeachment by two thirds majority vote are deleted and replaced by those for the impeachment to be undertaken objectively through laid down procedure. Part three – The Prime Minister and MinistersThe PSC recommends changes to this part to reflect the proposal that the Prime Minister is not the Head of Government and to provide modalities for the appointment and removal Article 172 Prime Minister (i) Article 172(1) delete the words “Head of Government” (ii) Article 172(2)(a) be rephrased to provide that the Prime Minister works under the general direction of the President (ii) Article 172(3) and (6) de deleted and consequential amendments be made to clauses (4) and (5). PSC recommends that a New Clause be added to read “the Prime Minister shall be the leader of Government Business and shall perform such other tasks as may be assigned by the President.” Article 173 Appointment of Prime Minister (i) Article 173(1) be amended to provide for the

pleasure and mercy of the President who can fire them at will without reference to Parliament. They cannot be expected to be independent or even effective. Their duties and functions will also be delegated by the President as he pleases. The Bomas Draft had dealt with the concerns of Kenyans of devolving executive power to reduce “the feudal powers of an imperial monarch” which led to Presidential dictatorship. This unfortunately has been brought back through the Kilifi changes to the Bomas Draft Constitution. Also, provisions to limit the number of the Cabinet have been deleted allowing the President to appoint as many as he wants. We are therefore likely to continue with the status quo even with a new Constitution whereby we have a huge blotted Cabinet whose effectiveness is actually questionable let alone the amounts of funds to be spent on the wage and luxury bill. The president will in the words of Hon Murungi be enjoying feudal powers of an imperial monarch; he is the Head of State, the Head of Government, will appoint and fire the Prime Ministers, Deputy Prime Ministers, Ministers, Deputy Ministers, Principal secretaries and all other appointments. Only an undefined handful of specified officials will be


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(c) exercise the powers of mercy in accordance with Article 166; and (d) acting in accordance with the advice of the Ethics and Integrity Commission, confer honours in the name of the people and the Republic.

(8) The President shall liaise with the Prime Minister to ensure that –

(a) the international obligations of the Republic are fulfilled through the actions of the relevant Ministers and shall submit a progress report to Parliament annually; and (b)the courts, constitutional Commissions and State officers are able to secure their independence, impartiality, dignity, accessibility and effectiveness, as contemplated in this Constitution.

Legislative functions of President

Article 154(1) The President may propose legislation, and refer it to the Cabinet with a request that the Cabinet approve its submission to the National Assembly as a Government Bill;

(2) When presented with a Bill passed by Parliament, the President shall act in accordance with Article 135.

(3) The President shall ensure that –

(a) public participation requirements concerning the

appointment of the Prime Minister by the President from amongst Members of Parliament (ii) Article 173(6) deleted and replaced as follows “if Parliament fails to confirm the appointment of the person proposed by the President, the President shall propose another Member.” (iii) Article 173(7) where the second nominee is not approved by Parliament, the President can appoint any Member of Parliament as Prime Minister. Article 176(1) Dismissal of Prime Minister The PSC recommended that the powers of dismissal should vest in the President alone. Article deleted and replaced with new one entitled “dismissal of Prime Minister and Ministers” providing new modalities for dismissal, where the President has the authority to dismiss without reference to Parliament. Article 177 Ministers and Deputy Ministers (i) Article 177(4) 20% of the Cabinet may be appointed from persons who are not Members of Parliament provided that they qualify for election to Parliament; such Ministers shall be ex-officio MPs (ii) New Cause Article 177(3) be added removing a ceiling on the size of the Cabinet and those appointments may be made subject to any

approved by Parliament the rest ripostes with the President. The Kilifi changes to the Bomas Draft in relation to the processes of appointments, approval and dismals of the Executive undermine the efficacy of the structures and the institutions of Executive. They also undermine constitutionalism, the principles of democracy, accountability and good governance. These powers allowing dispensation with the Bomas Draft procedures, permit arbitrariness and abuse. These provisions are effectively worse than those currently exercised by the Presidency even though some are not expressly provided for in the current Constitution. In the end since the Kilifi changes are such that most appointments and dismissals are made solely by the president and at his pleasure, the offices of the PM and the deputies are just additional jobs and powerless positions created to further bloat the Executive but adds no value to good governance, democracy, accountability and genuine leadership.


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enactment of legislation and regulations have been satisfied by Parliament; and (b) the Prime Minister assigns responsibility for the implementation and administration of every Act of Parliament.

Curtailment of presidential powers

Article 154A(1) This Article applies to a person who holds the office of President, or who is authorized in terms of this Constitution, to exercise the powers of the President –

(a) during a period commencing on the date of the first vote in a presidential election, and ending when the newly elected President assumes office; or (b) while the President is temporarily absent or incapacitated, as contemplated in Article 190;

(2) During a period referred to in clause (1), a person to whom this Article applies may not exercise any power of the President-

(a) relating to the nomination or appointment of the judges of the Superior Courts of record; (b) relating to a complaint leading to the removal of a judicial officer; (c) relating to the nomination or appointment of any other public officer who this Constitution or legislation requires the President to appoint; (d) relating to the appointment or dismissal of persons to represent the

provisions of an Act of Parliament. The PSC recommended that the Deputy minister be retained Article 180 Assignment of Functions Since the Prime Minister is not Head of Government the authority and functions of the office be deleted. New Article 180 allows the President to assign functions and transfer responsibility to the Deputy President, Prime Minister, Deputy Prime Minister, Ministers and Deputy Ministers. Article 180A Absence of Deputy President, Deputy Prime Minister, Deputy Prime Ministers, Ministers and Deputy Ministers from the Public – Clause deleted Article 182 Appointment and dismissal of principal Secretaries – (i) Delete provisions for appointment of Principal Secretaries by the President to be without consultation with the Prime Minister (ii) All appointments of certain specified Public Offices be vetted and approved by Parliament. Due to the difference of the functions between the Judiciary the Attorney-General, the Director of Public Prosecutions, the Public Defender it is recommended that Articles 202, 203, 204 and 205 be transferred from chapter Thirteen – Judiciary to Chapter 12 - Executive


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Republic of Kenya as high commissioners, ambassadors, or diplomatic or consular representatives; (e) relating to the powers of clemency; and (f) relating to the authority to confer honours in the name of the people and Republic of Kenya.

The Judiciary The Judiciary The Judiciary


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Kadhis’ Court

Article 198(1) There is established the Kadhis’ Court.

(2) The Kadhis’ Court shall –

(a) consist of the Chief Kadhi and such number of other Kadhis, all of whom profess the Islamic faith; and (b) be organized and administered, as may be prescribed by an Act of Parliament.

Jurisdiction of the Kadhis’ Court

Article 199 The Kadhis’ Court shall be a subordinate court with jurisdiction to determine questions of Islamic law relating to personal status, marriage, divorce and matters consequential to divorce, inheritance and succession in proceedings in which the parties profess the Islamic faith.

Judicial Service Commission

Article 200(1) There is established the Judicial Service Commission consisting of –(a) one Supreme Court Judge elected by the judges of the Supreme Court, who shall be the Chairperson of the Commission; (b) one Court of Appeal judge elected by the judges of the Court of Appeal; (c) one High Court judge elected by the judges of the High Court; (d) the Attorney-General; (e) the

The PSC renamed this chapter “the Judiciary” retained most of the provisions in the Bomas Draft Constitution. The PSC recommended that Articles 198 and 199 be retained as in the Bomas Draft. Due to the difference of the functions between the Judiciary the Attorney-General, the Director of Public Prosecutions, the Public Defender it is recommended that Articles 202, 203, 204 and 205 be transferred from chapter Thirteen – Judiciary to Chapter 12 - Executive The exercise of Nolle Prosequi be subject to the discretion of the court under certain circumstances Amendments effected on certain terminology in relation to the Supreme Court Article 186(1) – the difference is the words “there is established a” Article 200(1)(a) – Judicial Service Commission The Chief Justice should be the Chairperson of the Judicial Service Commission and the Chief Kadhi should not be a member of the Commission. Article 200(1)(f) The Chief Kadhi should be consulted on the appointment of Kadhis. Article 202 – Attorney-General The PSC recommends that (i) Appointment be with approval of Parliament (ii) AG should have security

These changes make sense and do not fundamentally alter the spirit and design of the Bomas draft Constitution The issue of retaining Kadhis Courts as in the Bomas Draft Constitution was contentious with Christians complaining that this would introduce sharia law and be discriminative in favour of Muslims. However, the dominant argument was that these courts relate only on matters of personal law; divorce, inheritance, custody of children and do not necessarily affect in any way people who profess other faiths. There was also an argument that since Muslims are a minority in Kenya, this issue should not be subject to a referendum as they would loose, and most fundamental the Constitution should protect its minorities. It is not clear why the PSC recommended that the Chief Kadhi should not be a member of the Judicial Service Commission. It would seem logical to include the Chief Kadhi in the Commission as he is to be consulted on appointment of Kadhis, a role that the Judicial Service Commission is also expected to play. The changes made by the Kilifi recommendations in relation to Article 205(3) and (4) relate to the removal of the AG, Director of Public Prosecutions and the Public


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Chief Kadhi; (f) two advocates each of at least fifteen years’ standing nominated by the Law Society of Kenya; and (g) one person nominated by the Public Service Commission.

(2) The Chief Registrar of the Judiciary shall be the Secretary to the Commission.

(3) Members of the Commission, apart from those appointed under clause (1)(d), (e) and (f), shall hold office, provided that they remain qualified, for a term of five years and shall be eligible for re-appointment for a further term of five years.

Removal from office

Article 205 (1) The Attorney-General, the Director of Public Prosecutions or the Public Defender may be removed from office only on the grounds of –

(a) inability to perform the functions of office arising from infirmity of body or mind; (b) non-compliance with the principles set out in Chapter Nine; (c) bankruptcy; (d) incompetence; or(e) misconduct or misbehaviour whether in the performance of the office-holder’s duties or otherwise.

(2) A person desiring the removal of the Attorney-General, the Director of Public Prosecutions or the Public Defender may present

of tenure (iii) Tenure to be limited to five years, renewable only once. Article 205(3) Removal from office delete “president” and replace with “Parliament” Article 205(4) new clause introduced to provide for Parliament to send the petition to the President if satisfied that it discloses ground under clause (1)

Defender from office, a role that was to be played by the President through a petition to him from the judicial Service Commission (clause 2) in the Bomas Draft. The new changes are that this role should be played by Parliament who instead of the President will receive and examine the Petition from the JSC and if grounds for dismissal are disclosed will forward it to the President for action. These are important changes to ensure the independence of the judiciary by introducing a process of vetting whereby the role of the Executive is to appoint and dismiss on the basis of investigation and due process by other organs and institutions. This means that the President will not be the judge, the jury and the hang man, an improvement on the Bomas Draft Constitution provisions.


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a petition to the Public Service Commission which, despite Article 292(2)(b) shall be in writing, setting out the alleged facts constituting the grounds for the removal of the office-holder in question.

(3) The Public Service Commission shall consider the petition and, if it is satisfied that it discloses the existence of a ground under clause (1), it shall send the petition to the President.

(4) On receipt and examination of the petition the President shall within 14 days suspend the office holder in question from office pending action by the President in accordance with clause (5) and, acting in accordance with the advice of the Public Service Commission, shall –

(a) in the case of the Attorney-General, appoint a tribunal consisting of –

(i) the Speaker of the Senate as chairperson; (ii) three judges from states which have a common law jurisdiction; and (iii) three other persons with experience in public affairs; and

(b) in the case of the Director of Public Prosecutions or the Public Defender, appoint a tribunal consisting of –

(i) four members from among persons who hold or have held office as a judge of


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a superior court of record, or who are qualified to be appointed as such; (ii) one advocate of at least fifteen years’ standing nominated by the Law Society of Kenya; and (iii) two other persons with experience in public affairs.

Devolved Government Devolved Government Devolved Government


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Principles of devolved government

Article 207(1) The district is the principal level of devolution.

(2) The principal role of Regional Government is to co-ordinate the implementation, within the districts forming the region, of programmes and projects that extend across two or more districts of the region.

(3) The principal role of the Senate is to provide an institution through which the devolved levels of government share and participate in the formulation and enactment of national legislation and to protect the interests of the Regional, District and Locational Governments.

(4) Parliament is responsible for the enactment of framework legislation applicable to the devolved levels of government.

Election of mayor and deputy mayor of Nairobi

Article 215 The mayor and deputy mayor of Nairobi shall each be elected, in the manner prescribed by Act of Parliament, by a simple majority of registered voters who meet the requirements relating to residence within the region prescribed by Act of Parliament. (Deleted by Kilifi report)

Election of mayor and

PSC resolved that there should be two levels of devolution: (i) National and District. (ii) The PSC resolved that the Bomas Draft Constitution be refined to reflect the proposal in (i) above. PSC recommended (i) the leader of district government be called “Chairman” not “Governor” (ii) The levels of devolution be two and a Statute provide for the linkage between the two, (iii) clarity be made on the role of the national government in the districts Article 207(2) and (3) Principles of devolved government deleted Article 208 Cooperation between governments at the two levels Article 208(1) and (2) consequential amendments to be effected to reflect the two levels of government New Clause 5 to be added for Parliament to legislate on the mechanisms creating linkages between the National Government and the District Government. Article 210 – Conflict of laws Redrafted and harmonised with Schedule Four on distribution of functions between National and District Governments “Regional Legislation” deleted and replaced by “District Legislation” and the terminology in Articles 210A, 210B and 210C to be changed to reflect two levels of Government.

A number of changes have been made to this chapter which fundamentally affect the design, the architecture and the infrastructure of the whole Constitution. Most fundamental of the changes is the reduction of the levels of devolved government from four to two. In fact besides national level, the other level is the district government. In the manner in which devolution was envisaged to facilitate local government, good governance and democracy where people are consulted and participate at the lowest level in the decision making processes and resource allocation. This was based on the principle of fair and equitable distribution of resources throughout Kenya so that all geographic regions, communities and peoples of Kenya benefit equitably and fairly in development and other initiatives. District governments mean for example, you will have decisions being made on your behalf in Lodwar when you reside in Lokitang, Kokiselei or Lokichogio. The Bomas Draft Constitution had provided for a system which would have meant that even if you lived in Kokiselei of Kavisuni, you will be able to receive national resources make decisions on priority expenditures, get security, public services and


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deputy mayor of Nairobi

Article 233 Until relevant provision is made by Act of Parliament for the purposes of Article 215 –

(a) the manner of voting under that Article shall be the same as at a by-election for the National Assembly; and (b) the residential requirement for the purposes of that Article is that a person has been resident in the region throughout the period of twelve months immediately before the date of the election (Removed to Legislation to make provision for the election).

Article 210(1) and (2) – National legislation prevails in every situation; there should be district legislation to deal with peculiar situation of the district but district legislation must be consistent with National legislation and policy. Article 210(3)(b) needs rephrasing in accordance with national policy Article 210(4) Amended Article 210(5) Deleted Article 210B(3) – New clause inserted – to provide for a commission of inquiry to recommend to the President the suspension of District Government Part II – Regions Article 211 dealing with Regional Governments - Delete Article 212 dealing with Regional Legislative Assemblies - Delete Article 213 Dealing with Regional Executive Committee - Delete Article 214 Dealing with Election of Regional Premier – Delete Article 215 Dealing with Election of Mayor - Delete Article 216 Dealing with Functions of Regional Executive Committees – Delete (effectively deleting the whole of Part II). Part III – DistrictsConsequential amendments effected in Articles 217, 218, 219, 220 and 222 to generally reflect the changes that the PSC recommended in the Kilifi report.

participate in decision making governance on matters directly affecting you. Now with the Kilifi changes it means your life does not change much as decisions may or may not be favourable to you because the government still remains far far away! The changes made by the PSC and contained in the Kilifi report on the Devolution Chapter are reflected and effected in the Kilifi Draft Constitution, which although was expunged from the report by Parliament, the necessary chapters approved for change by Parliament on June 30th 2005, have been re-written in the manner contained in the Kilifi Draft Constitution. In fact the report presents unidentified consequential amendments, which are clearly stated in the Kilifi Draft Constitution but not in the report itself. This means cross-reference with the Kilifi Draft Constitution is mandatory in relation to the seven chapters approved for change. Much of the provisions in the chapter of Devolution have been deleted and or removed to Legislation. Since the construction, architecture and design of this chapter is closely linked and connected to the philosophy and design of the entire Constitution, the changes made therein affect the efficacy of the whole


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Part IV – All references to Locations – Deleted (effectively the whole of Part IV is also deleted from the Bomas Draft. Article 221 – Election of the district governor and deputy district governor – The PSC recommends that the “district governor” and the “deputy governor” be renamed “district chairperson” and deputy chairperson” respectively. Also it recommends that the Clause be further amended by inserting the words “in such a manner as may be prescribed by an Act of Parliament” immediately after the word “elected.” Clauses (2) and (3) – be Deleted. Articles 227, 228, 228A - deleted Articles 228B, 229, 229A, 231, 232 amended to reflect two levels of Government Article 230(1) retained with changes to give effect to principles of devolution. All other clauses of Article 230 – Deleted. Article 234 – Deleted Article 235 Sub-title amended to “Election of Members of District Assemblies.” Article 233 Election of Mayor and Deputy Mayor of Nairobi – Provision be made for specific legislation.

Constitution. For example there is a close link with chapter two of the Bomas Draft Constitution on the Republic; Chapter three on National Values, Principles and Goals; Chapter ten on Representation of the People; Chapter 11 on Legislature; Chapter 12 on the Executive; Chapter 15 on Public Finance; Chapter 16 on Public Service; and a number of Schedules. Therefore amendments to this chapter alone and not to the other chapters which link and make it effective is going to fundamentally affect the construction of the Constitution and its implementation and enforcement. In the principles of constitutionalism and constitution-making must be respected otherwise the product, the new Constitution may not enable us to achieve our objectives and goals we set out to achieve through the review process.

Constitutional Commissions

Application of Chapter

Article 287 This Chapter

Constitutional CommissionsThe PSC recommended that five Constitutional commissions remain the rest

Constitutional CommissionsThe gender Commission has been deleted from the Constitution. It alongside the


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applies to all constitutional Commissions except where specific provision is made to the contrary elsewhere in this Constitution.

Objects and independence of Commissions

Article 288 (1) The objectives of constitutional Commissions are to –

(a) protect the sovereignty of the people; (b) secure the observance by all State organs of democratic principles and values; and (c) ensure the maintenance of constitutionality, by insulating essential democratic functions from improper influence, manipulation or interference.

(2) Constitutional Commissions –

(a) are subject only to this Constitution and the law; (b) are independent and not subject to direction or control by any person or authority; and (c) shall be impartial and perform their functions without fear, favour or prejudice.

(3) Where appropriate, a constitutional Commission shall –

(a) establish branches at all levels of devolved government; and (b) offer its services to the public free of charge.

Additional constitutional Commissions

Article 297 In addition to the

be provided in Legislation These five included:-Parliamentary Service Commission; The Anti-Corruption Commission; Human Rights Commission; Electoral and Boundaries Commission and the Judicial Service Commission. However Parliament approved only amendments to Chapter eighteen dealing with the Commissions specified in that chapter only. Parliament rejected deletion of other Commissions established in other chapters in the Constitution. Only chapter 18 had been approved on 30th June 2005 as one of the chapters which are contentious. Article 288 and 295 Objects and Independence of Commissions – Amendments effected to reflect two levels of government. Article 297 – Additional Constitutional Commissions – PSC recommended that the word “Constitutional” be deleted and the Article renamed “Additional Commissions.” Article 297(1) Delete “Constitutional.” Clause (d) Delete the Commission on the implementation of the Constitution and transfer it to Transitional provisions PSC recommended All other Commissions be established by Legislation

following Commissions shall be established not in the Constitution but by an Act of Parliament:- (a) Human Rights and Administrative Justice; (b)The Gender Commission; (c) Salaries and Remuneration Commission; (d) Kenya Anti-corruption Commission The other Constitutional Commissions slated for removal from the Constitution into legislation were saved by the fact that they are established elsewhere in the Bomas Draft Constitution and not in Chapter 18 approved for amendment on June 30th 2005. The importance of establishing Commissions in the Constitution is to ensure their independence and security of tenure so that they can be efficient, effective and serve without fear or favour. This is also aimed at ensuring their financial independence without which they cannot operate effectively or suffer no financial crippling by the Executive. A good example, is the experience that the Kenya National Commission of Human Rights is going through at the moment. This Commission established by an Act of Parliament in 2003, is going through financial difficulties which are almost undermining its work. This is because as it is established by


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other constitutional Commissions established in this Constitution, the following constitutional Commissions are established –

(a) the Commission on Human Rights and Administrative Justice; (b) the Gender Commission; (c) the Salaries and Remuneration Commission; and (d) the Commission on the Implementation of Constitution.

Parliament may create any other Commission be Legislation.

legislation it doesn’t have an independent vote and has to get its funding through the Ministry of Justice and Constitutional Affairs. Furthermore, unless its chairperson and Commissioners are scrupulously independent it is not possible for such Commissions to resist interference by the Executive failure of which its work and funding will be sabotaged. In March 2002 Hon. Murungi, said “NAC proposes setting up of the following Permanent Commissions through the Constitution: (1). The Electoral Commission; (2). Kenya Anti-corruption Commission; (3). Kenya National Commission on Human Rights and Minorities; (4) Gender Commission; (5) Police Commission; (6) Armed Forces Commission; (7) Public Service Commission; (8) Ombudsman; (9) Prisons Commission; (10) Judicial Service Commission; (11) Controller General; (12) Auditor General; (13) the Land Commission; and (14) the Law Reform Commission.

CONCLUSION Issues of process have been exhaustively discussed on many forums and occasions. These issues have been discussed in line with the existing legal framework for review (Cap 3A and the Consensus Act) and in relation to the Constitutional Court Ruling by Justice Ringera and the then Ag. Judge Mary Kasango. It is however important to note that the Parliament has thus far ignored the legality and the constitutionality of the process and carried on with a


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process which is outside the current Constitutional dispensation and which also offends the current Constitution. However, there is still an opportunity to make things legal and Constitutional and this can be done at any stage of the review process, at least until a new Constitution is promulgated. Therefore, there are few options available to make the process right and to ensure the people of Kenya get a new Constitution. These options depend entirely on the political goodwill of the ruling party, the opposition – mainly the Parliament. It seems that since the Parliament did not choose to return the contentious issues to the National Constitutional Conference (NCC Bomas process) or did not constitute a Constituent Assembly to make a Constitution for Kenya but chose to rely on the unconstitutional Consensus Act to enable themselves to conclude the remaining phase of the review process, none of these options are likely to be entertained by the political elite. Therefore, there are fewer and fewer options on the table. For instance, the Attorney General, expected to incorporate the ONLY Kilifi changes approved by Parliament on 21st July 2005, may publish a Draft Constitution which is acceptable to the political elite and to the majority of Kenyans. This will mean then there is no reason why the Members of Parliament cannot come together and amend the current Constitution to facilitate the Referendum. This would not only make the process legal and Constitutional it would facilitate national harmony and unity, thereby restoring national confidence in the review process and ending the current acrimony and coerciveness employed by those who wield power. It would also ensure that we achieve the national consensus that we so much need to get a new Constitution. However, if the Draft Constitution which the AG publishes is unacceptable to MPs and majority of Kenyans, this will further divide this country and make national unity and confidence impossible. It will also mean that, those who will be opposed to it will push for a NO-VOTE at the Referendum thereby leaving Kenyans without a Constitution and making us revert to the current Constitution, which serves the interests of the incumbent perfectly. If the status quo is maintained and for some reason a YES-VOTE is achieved under the Consensus Act framework, then the new Constitution will most likely be challenged in Court – both the process and the product. If the Courts will be independent, the most likely decision would be to nullify both the process and the product of the Review Process. This means also in the end, we shall revert to the current Constitution. In this regard, the current government would have either way scored incredible political mileage by arguing that, they gave Kenyans a new Constitution and Kenyans rejected it or others challenged it in Court, thus they have no control over the process outside their mandate. In this regard, either way the government wins and the people of Kenya who wanted a new constitution and on whose promise they voted for this government, loose, big time. Our immediate role should be to bring the MPs together on the negotiating table for them to find a political settlement of the issues that have so polarised and divided them to the extent that national unity and consensus have been undermined. If this is not possible then if we still want a new Constitution, we should wait and ensure a regime change in 2007 and hopefully those that we elect will somehow guarantee us that elusive document, the new Constitution. Perhaps learning from our past experience we should push for this new Constitution just before the 2007 elections so that it does not become an election agenda and end up diving and polarising us has happened since 2003. This unfortunately is a loose-loose or a win-win scenario. It is a war whereby we all loose or we all win, nobody, either the


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government, politicians, civil society, public or private sector and anyone else in Kenya will win and the others loose or will loose and the others win. I just wish we can all realise this, and the sooner we realise it the better for all of us. Unfortunately this is an expensive political game and politics is after all not all that simple, but in the end the truth shall set all of us free!

PEOPLE’S DRAFT CONSTITUTION (ADOPTED IN BOMAS OF...

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