THE PRELIMINARY REPORT OF
THE COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW
ISSUED ON THE PUBLICATION OF THE HARMONISED DRAFT CONSTITUTION
17TH NOVEMBER, 2009
THE COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW
FOREWORD
Kenyans will recollect that the train of constitutional reforms came to a screeching halt in 2005
following the referendum fiasco of that year.
This was occasioned by the polarization of the country along ethnic and partisan lines as a result of
the political fallout emanating from the alleged breach of the memorandum of understanding among
the NARC coalition partners. The constitutional reform process was an unfortunate casualty of this
fallout because of the poisoned public mood, political distortion, misinformation and animosity
prevalent at the time.
As we approached the 2007 General Election this animosity had become a raging fire which almost
consumed the nation in the 2008 post election violence.
The consequential National Accord was in effect a peace treaty the terms of which inter alia provided
for the completion of the stalled constitutional reform process in the shortest possible time. This
was then followed by the enactment of the constitution of Kenya Amendment Act 2008 and the
Constitution of Kenya Review Act 2008
The Draft Constitution and this Preliminary report have been prepared by the committee of Experts
in compliance with its mandate under the Constitution of Kenya Review Act (2008).
Nzamba Kitonga (SC)
CHAIRPERSON,
COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW
Members of the Committee of Experts on Constitutional Review:
• Atsango Chesoni (Vice Chairperson)
• Abdirashid Abdullahi
• Otiende Amollo
• Chaloka Beyani
• Bobby Munga Mkangi
• Christina Murray
• Njoki S. Ndung’u
• Fredrick Ssempebwa
Ex-officio members of the Committee:
• Ekuru Aukot (Director)
• Amos Wako (the Honourable Attorney General)
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ACRONYMS AND ABBREVIATIONS
AG
CIPEV
CoE
CKRC
ECK
FTPT
IDEA
IIBRC
IIEC
IPPG
IREC
KANU
K.I.C.C
KNDR
MMPR
MP
NARC
NCC
NCCK
ODM
ODM – Kenya
PM
PNU
PSC
RG
UK
USA
Attorney General
Commission of Inquiry on Post Election Violence
Committee of Experts
Constitution of Kenya Review Commission
Electoral Commission of Kenya
First Past The Post
Institute of Democracy and Electoral Assistance
Interim Independent Boundaries Review Commission
Interim Independent Electoral Commission
Inter Parliamentary Parties Group
Independent Review Commission on the General Elections held in Kenya
on 27th December 2007
Kenya African National Union
Kenyatta International Conference Centre
Kenya National Dialogue and Reconciliation
Mixed Member Proportional Representation
Member of Parliament
National Alliance Rainbow Coalition
National Constitutional Conference
National Council of Churches of Kenya
Orange Democratic Movement
Orange Democratic Movement – Kenya
Prime Minister
Party of National Unity
Parliamentary Select Committee on Constitutional Review
Reference Group
United Kingdom
United States of America
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TABLE OF CONTENTS
CHAPTER 1: INTRODUCTION AND EXECUTIVE SUMMARY...................................................... 7 1.1. Introduction .............................................................................................................................................. 7 1.2. Executive Summary ................................................................................................................................. 8 CHAPTER 2: HISTORY AND CONTEXT OF CONSTITUTION MAKING IN KENYA ........10 2.1Introduction ..............................................................................................................................................10 2.2. The Pre-Colonial Period 1887 - 1920..................................................................................................10 2.3. The Colonial Period 1920-1963 ...........................................................................................................10 2.4. Post Independence Constitutional Developments 1963 - 1991 .....................................................11 2.5. The Period of Multi-Party Democracy 1992-2002 ...........................................................................11 2.6. The National Constitutional Conference (Bomas) in the Third Republic 2003-2005 ................12 2.7. The 2005 Referendum on a Proposed New Constitution in 2005 .................................................12 2.8. The Disputed Presidential Elections and the Electoral Crisis in 2007 ..........................................12 2.9. The Constitutional Review Process 2008 ...........................................................................................13 CHAPTER 3: METHODOLOGY AND PUBLIC PARTICIPATION ................................................16 3.1. The Methodology of the Committee of Experts ..............................................................................16 3.2. The Statutory Base of the CoE’s Methodology as per the Constitution of Kenya Review Act
(2008) ...............................................................................................................................................................16 3.3. How the CoE is Approaching and Fulfilling its Mandate Under section 23 of the Review Act
(2008): ..............................................................................................................................................................18 3.4. CoE’s Operational Plan, 2009-2010 ....................................................................................................24 CHAPTER 4: CHALLENGES TO THE CONSTITUTIONAL REVIEW PROCESS ....................27 4.1. Constitution making in the Post-2007 Conflict Context .................................................................27 4.2. The legacy of the 2005 Referendum: A culture of dishonesty, suspicion, cynicism and apathy
..........................................................................................................................................................................28 4.3. The Challenge of the Statutory Framework, the Constitution of Kenya Review Act (2008) ....29 CHAPTER 5: AGREED ISSUES IN THE HARMONISED DRAFT CONSTITUTION .............32 4
5.1. Introduction ............................................................................................................................................32 5.2. Technical and other similar changes ...................................................................................................33 5.3. Smaller editorial decisions .....................................................................................................................37 5.4. Issues where there is agreement in principle between the texts but about which sectoral
concerns arise .................................................................................................................................................37 CHAPTER 6: AREAS OF CONTENTION ..............................................................................................44 6.1.1. Parliamentary Systems ........................................................................................................................45 6.1.2. Presidential System..............................................................................................................................46 6.1.4. Synthesis ...............................................................................................................................................48 6.1.5. Recommendations...............................................................................................................................50 6.2. System of Government: The Legislature ............................................................................................50 6.2.1. Recommendations...............................................................................................................................52 6.3. Devolution of Power .............................................................................................................................52 6.3.1. The objects of review and the mandate of the Committee ..........................................................52 6.3.2. What system do the people want? ....................................................................................................53 6.3.3. Resolving the Contentious issues - the levels of government......................................................53 6.3.4. The Functions ......................................................................................................................................54 6.3.5. The History ..........................................................................................................................................54 6.3.6. The Cost of Administration ..............................................................................................................54 6.3.7. Proposals for the Harmonised Draft Constitution ........................................................................55 6.4. The Transition ........................................................................................................................................58 Bringing the Constitution into Effect: Transitional Issues .....................................................................58 6.4.1. Introduction .........................................................................................................................................58 6.4.2. A preliminary matter: Oaths and the register of interests.............................................................59 6.4.3. Implementing a new system of government ...................................................................................59 6.4.4. The Judiciary ........................................................................................................................................60 6.4.5. Commissioners and other appointed constitutional office holders ............................................61 5
6.4.6. Adopting new laws ..............................................................................................................................62 6.4.7. Establishing Devolved Governments ..............................................................................................63 CHAPTER 7: FROM THE HARMONISED DRAFT CONSTITUTION TO THE
REFERENDUM................................................................................................................................................64 CHAPTER 8: ANNEXES ...............................................................................................................................66 ANNEX 1: SUB-COMMITTEES OF THE COE .................................................................................66 ANNEX 2 STUDY GROUPS ....................................................................................................................67 ANNEX 3: CONSULTATIONS OF THE COE ..................................................................................68 ANNEX 4: EVENTS THAT THE COE HAS ATTENDED AND HELD PANEL
DISCUSSIONS AT.......................................................................................................................................69 ANNEX 5: FORA THAT THE COE HAVE PARTICIPATED IN AND/OR ADDRESSED 70 ANNEX 6: PUBLIC AWARENESS AND MEDIA EVENTS CONDUCTED BY THE COE 72 6
CHAPTER 1: INTRODUCTION AND EXECUTIVE SUMMARY
1.1. Introduction
It is almost twenty years since the people of Kenya formally embarked on a quest for a new
democratic constitutional dispensation through the repeal of section 2A of the Constitution of Kenya in
1991. The repeal of section 2A was an important step in the reclamation of Kenya’s democratic
space as it resulted in the rebirth of multi-party politics; however this act alone was insufficient to
create a democratic constitutional framework. Subsequently minimum constitutional reforms were
enacted in 1997 as part of the Inter Parliamentary Parties Group (IPPG) agreement. However these
were not enough to prevent the post-electoral violence of 2007. What is more the IPPG package
focused on political and electoral reform concerns; and even then inadequately; important
agreements such as the appointment procedures for the members of the Electoral Commission of
Kenya (ECK), for example, were not enacted let alone constitutionalised. Furthermore, Kenya’s
current constitutional framework discriminates against and facilitates the exclusion and inequality of
the majority of Kenyan people including persons with disabilities, youth and women. Issues such as
inequality could not be addressed through the minimum reforms. Whilst the country had an
opportunity to successfully conclude a comprehensive reform of the constitution in 2002 – 2005,
sadly this process was not allowed to bear fruit. The tragic result of the unfinished constitutional
agenda was the post-electoral violence witnessed in late 2007 to February 2008 that brought the
country to the edge, necessitating the intervention of the African Union. Over 1000 Kenyans lost
their lives in this conflict.
In February 2008 during the Kenya National Dialogue and Reconciliation, the lack of constitutional
reform was identified under Agenda Item Number Four as one of the long term issues causing
conflict in Kenya. The principal signatories to the National Accord, His Excellency President Mwai
Kibaki and the Right Honourable Prime Minister Raila Odinga, committed themselves to instituting
measures to effectively address all the Agenda Four concerns. Pursuant to this commitment, a
statutory roadmap for the completion of the review process was enacted in December 2008, through
the Constitution of Kenya Review Act (2008) the (Review Act (2008)). Section 28 of the Review Act (2008)
provided for the completion of the new constitutional review process within twelve months. The
statutory framework also provided for four organs of review: the Committee of Experts; the
Parliamentary Select Committee (PSC) on Constitutional Review; the National Assembly and the
Referendum. In January-February 2009, pursuant to the Review Act (2008) the PSC and Panel of
Eminent African Persons advertised for and recommended the appointment of the nine members
and director of the Committee of Experts. The members of the CoE were sworn into office on 2nd
March 2009.
Thousands of Kenyans have lost their lives in the pursuit of a new constitution; the country has
already invested over Kenya Shillings Five Billion in previous review initiatives. As the 2012
elections approach, the window for reform is closing. Kenyans have an opportunity to create a
prosperous new future and affirm a culture of dialogue, peaceful resolution and democratic
negotiations of their differences; an opportunity to create a country in which all citizens enjoy
equality of opportunity. But this opportunity cannot be taken for granted. As the elections near, the
country will once again be seized by election fever and important but more “mundane” long term
concerns such as “constitutional reform,” maybe forgotten. Worse still the dangerous and fatal dance of
December 2007 may be repeated with even worse and potentially irreversible consequences. It is
therefore imperative that all Kenyans pull together and seize the opportunity for a peaceful new
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future. Only a new constitutional dispensation can ensure the kind of far reaching institutional
reform and equal access to resources necessary to create a truly enabling environment in which all
Kenyans can live in dignity. The constitutional review process offers all Kenyans a chance to
negotiate a peaceful and prosperous new future for our country.
1.2. Executive Summary
This report is prepared by the Committee of Experts on Constitutional Review (CoE) pursuant to its
mandate under the Constitution of Kenya Review Act (2008). The Act requires the Committee to prepare
a report upon the publication of a Harmonised Draft Constitution. In doing so, the Committee is
obliged to ensure that the report and the Harmonised Draft Constitution are made available to the
public. Having identified the issues that are agreed, and issues that are contentious, the Committee is
required to make recommendations to the Parliamentary Select Committee (PSC) on the resolution
of contentious issues for the greater good of the people of Kenya. The recommendations in this
report are made pursuant to the above summarized mandate of the CoE.
The report is arranged in eight chapters. The history and context of constitution making in Kenya is
provided in Chapter 2. The Chapter speaks to the various epochs of constitutional amendments and
constitution making in Kenya; including the legacy of amendments that eroded the democratic
safeguards contained in the independence constitution. The chapter also addresses the immediate
historical context of the legislative and constitutional framework for the current constitutional review
process linking it to the National Accord and Reconciliation Act (2008) which led to the cessation of the
December 2007- February 2008 post-electoral violence.
Chapter 3 lays out the methodology used by the Committee in preparing a Harmonised Draft
Constitution including its statutory basis in sections 23, 29 and 30 of the Constitution of Kenya Review
Act (2008) which stipulate the minimum criteria for the identification of agreed and contentious
issues based on three constitutional drafts namely: the Constitution of Kenya Review Commission Draft of
September 2002; the draft that emerged from the National Constitutional Conference on 15th March
2004 (the Bomas Draft) and the Proposed New Constitution (PNC) that was subjected to the referendum
in 2005. The chapter also explains the CoE’s 12 month statutory timeframe, clarifies the differences
between the mandate of the CoE and CKRC processes and offers some description and record of
the consultations engaged in and or facilitated by the Committee.
Chapter 4 details the nature of challenges that have been experienced in the constitutional review
process. These challenges include cynicism, the polarised post conflict context of the current review
process and the statutory framework. In Chapter 5, the reader will find a brief analysis of the agreed
areas in the Harmonised Draft Constitution. Given that most of the three drafts are agreed on the
bulk of the chapters contained therein, this chapter only highlights how the CoE has gone about
ensuring the harmonisation of these chapters e.g. where there were technical or editorial concerns.
The chapter also deals with how the CoE has treated matters which may have been agreed in the text
of the three drafts, but are of particular concern to some specific sectors, such as the religious sector,
which has expressed concerns about how the question of the continued constitutionalisation of the
Kadhis’ Courts will be addressed; as well as agreed issues of concern to the general public such as
land.
Chapter 6 is focused on the three issues that the CoE has identified as contentious:
• Systems of Government (the nature of the Executive and Legislature);
• Devolution; and
• Transitional Clauses (how Kenya will move from the current constitutional dispensation to a
new one).
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The chapter elaborates on what specifically is considered contentious in relation to the four chapters
that deal with these three issues; illustrates how intertwined these chapters and issues are. The nature
of the executive to some extent determines the type of legislature a country has but so too does the
fact that a country has chosen to devolve power. As noted these chapters were not contentious in
their entirety, just elements of them. So that Kenyans are agreed, for example, that there should be
devolution, but they are not agreed on the levels. This has implications for the nature of the future
Kenyan legislature. Finally the chapter also contains the CoE’s proposals for the resolution of these
contentions. Chapter 7 contains the roadmap from the Harmonised Draft Constitution to the
Referendum. Chapter 8 contains annexes on important details of how the Committee has been
consulting with the public.
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CHAPTER 2: HISTORY AND CONTEXT OF CONSTITUTION MAKING IN
KENYA
2.1Introduction
The history of constitution making in Kenya can be contextualised in key defining periods that
situate significant constitutional developments. These are the pre-colonial period 1887-1920, the
colonial period 1920-1963, the period of independence in 1963, and post independence
constitutional developments that culminated in, the transition from the one party state to multi-party
democracy in the Second Republic of 1978-2002, the National Constitutional Conference (Bomas) in
the Third Republic 2003-2005, the referendum on a Proposed New Constitution in 2005, the disputed
presidential elections in 2007, which resulted in post election violence between 2007 and 2008, and
the current Constitutional Review Process 2008.
2.2. The Pre-Colonial Period 1887 - 1920
Kenya’s earliest constitutional foundation was laid during the pre-colonial period in 1887 when an
agreement was reached between the Imperial British East Africa Company and the Sultan of
Zanzibar, granting the Imperial British East Africa Company a fifty-year lease over the Coastal Strip.
The lease was changed in 1890 when it was converted to a concession under which the Imperial
British East Africa Company acquired the power to administer the territory by appointing
Commissioners, administering districts, making laws, operating courts, and acquiring and regulating
land.
In 1895 the administration of the territory changed hands from the Imperial British East Africa
Company to the British government, and the constitutional status of Kenya changed formerly to a
protectorate in 1897. The East Africa Order in Council 1897 provided the constitutional instrument
by which the protectorate was governed, with increased powers for Commissioners, application in
Kenya of the common law of England, equity and statutes of general application, and the
establishment of a judicial system.
2.3. The Colonial Period 1920-1963
By 1920 the protectorate status of the mainland territory of Kenya changed to colonial status and the
inhabitants became “British subjects” instead of British protected persons. As African political
resistance to direct British rule grew, major constitutional changes were attempted. For instance, the
Littleton and Lennox-Boyd Constitutions of 1954-55 were aimed at bringing an end to racism.
However, these were rejected and the Lancaster House Constitutional Conference was convened
subsequently in 1960. Kenya’s independence constitutional settlement was agreed at the Lancaster
House Constitutional Conference and paved the way to independence in 1963.
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2.4. Post Independence Constitutional Developments 1963 - 1991
The Independence Constitution of Kenya (1963) established a parliamentary system of government with
a Prime Minister, a Parliament consisting of the National Assembly and the Senate, and a devolved
system of government. Because the constitutional settlement for independence was reached at
Lancaster, there was the political undercurrent that the constitution was not autochthonous or home
grown, and Kenyans did not have ownership of their Constitution.
The immediate post independence Executive made gradual amendments to the constitution between
1964 and 1982 that increasingly concentrated power in the office of president. The cumulative effect
of these amendments undermined democracy, eroded the idea of limited government, and removed
from the independence constitution the important principle of checks and balances, which is the
hallmark of constitutionalism. An imperial presidency emerged as the positions of the Head of State
and Head of Government were unified without the attendant checks that usually exist in a
Presidential system. Thereafter, the constitutional protection against the redrawing of regional and
district boundaries or the creation of new regions or districts was removed, as were limitations on
powers to declare a state of emergency; the requirement that Members of Parliament who defected
or started a new party had to seek a fresh mandate from their constituents was put in place; the
Senate was abolished altogether, and the President gained power to appoint twelve nominated
Members of Parliament. In 1982 Kenya was formally transformed into a de jure one party state
through the introduction of section 2A of the Constitution and what little semblance of multi-party
democracy that had appeared to exist was emasculated. With the hindsight of wisdom, these
developments had a negative impact on the country’s constitutional development.
2.5. The Period of Multi-Party Democracy 1992-2002
As the wind of change against the monopoly of political power and self-perpetuating regimes
characterised by the one party state swept across Africa and elsewhere, popular acclaim and intense
political pressure for the restoration of multi-party democracy grew in Kenya. As a result Section 2A
of the Constitution, which had anchored the one party state, was repealed in 1991. Following this,
elections were held in 1992, but the general mood in the country was that these did not materialise
into a genuine multi-party democratic space in Kenya. Attention became focused on spearheading
comprehensive reforms.
On 4th August 1997 the Constitution of Kenya Review Act was published after intense negotiations
between the government and the opposition. This Act was part of the minimal Constitutional and
legislative reforms package undertaken prior to the 1997 general elections under the aegis of the
Inter-Party Parliamentary Group (IPPG) reforms. In October 1999 the political momentum
generated by this development led to the formation of the Parliamentary Select Committee on
Constitutional Review, which had a mandate to collect and collate views from Kenyans and to
recommend how the Constitution should be reviewed under a legislative framework provided by the
Constitution of Kenya Review Commission (Amendment) Act (1998).
Membership of this Committee was drawn from all parliamentary political parties. Parliament
adopted the report of the Committee on April 26, 2000 and the report recommended that Parliament
nominates 21 persons among whom the president would appoint 15 to become commissioners of
the Constitution of Kenya Review Commission (CKRC). On May 18, 2001, the Constitution of Kenya
Review Commission (Amendment) Act (2001) was enacted to facilitate the merger of CKRC and the
parallel Ufungamano group. Despite these measures being in place, former President Moi prorogued
Parliament in October 2002 to hold general elections, and thus effectively put the constitutional
review process in abeyance.
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2.6. The National Constitutional Conference (Bomas) in the Third Republic 2003-2005
A coalition of parties under the umbrella of the National Alliance Rainbow Coalition (NARC) Party
was formed to contest the 2002 elections against the then ruling Kenya African National Union
(KANU). In its campaign, NARC had promised to deliver a new constitution for Kenya within one
hundred days if the party were to be elected to power. On being elected, NARC reconvened the
National Constitutional Conference to deliver a new Constitution. The Conference produced a draft
Constitution called Bomas. Differences of political self-interest arose regarding this draft and some of
the delegates walked out of the Conference in disagreement about the position of the Prime Minister,
amongst other contentious issues.
A group of aggrieved Kenyans led by Reverend Timothy Njoya commenced judicial proceedings to
review the constitutionality of the procedure used by Parliament to bring about a new constitution.
This became known as the case of Timothy Njoya and others –v - the Hon. Attorney General & others
Miscellaneous Civil Application No 82 of 2004 in which the High Court led by Justice Ringera and with
Justice Kubo dissenting, held that the National Constitutional Conference or NCC was not a
constituent assembly and a referendum was required to adopt the constitution.
2.7. The 2005 Referendum on a Proposed New Constitution in 2005
After the collapse of the Bomas process, a Proposed New Constitution of Kenya (2005) (the Wako Draft)
was prepared by a faction of the NARC government and presented to Kenyans in a referendum held
on 21st November 2005. It was rejected by 57% of the votes cast. The referendum showed that the
political elite had long standing simmering grievances among themselves and the referendum was
used as the perfect forum for settling scores. Each group therefore resorted to political distortion,
ethnicity and tribal incitement, and raised tribal suspicions, hostilities and animosities to such
unacceptable levels that turned Kenya into a deeply divided nation in need of healing and
reconciliation. The fact that no efforts were made to institute a process of national healing served to
lay the ground for an even greater catastrophe precipitated by the quest for greater stakes in the
distribution of national resources. The country remained deeply divided right up to the general
elections that were held in December 2007.
2.8. The Disputed Presidential Elections and the Electoral Crisis in 2007
During the referendum, the campaign for a “yes” vote was characterised by the symbol of a Banana
and the campaign for a “no” vote was characterised the symbol of an Orange. The deep political
divide that arose from Bomas and was manifest in the referendum led to the collapse of the NARC
coalition after the referendum. The Oranges became organised under the umbrella of the Orange
Democratic Party (ODM) while the Bananas, what remained of NARC and other allied political
parties, e.g., KANU, formed a loose coalition under the banner of the Party of National Unity
(PNU). A faction of the ODM later split to form ODM-Kenya
This is the political atmosphere in which the general elections were fought and contested on 27th
December 2007. These elections were heavily contested with the two main candidates being the
incumbent, His Excellency President Mwai Kibaki, and the Honourable Raila Odinga, MP. The final
results were delayed and then announced amidst public tension and accusations that the delay was a
sign that the President’s party was attempting to rig the elections. Eventually the results were
announced on 30th December 2007 and the President hurriedly sworn in.
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Violence erupted in different parts of the country and scenes of people killed and property being
destroyed were projected by the media. The violence resulted in the death of more than 1,000 people.
Forcible evictions and mass displacements of people not indigenous to particular regions took place
and about 350,000 people were displaced. The country was visibly torn apart and teetered on the
brink of civil war. The African Union became the focal point for mediation efforts and put together a
Panel of Eminent Persons led by former United Nations Secretary General, Kofi Annan.
A delicate agreement was brokered by the Kofi Annan team and signed by His Excellency the
President Mwai Kibaki and the Right Honourable Prime Minister Raila Odinga on 28th February
2008. This agreement, signed under the Kenya National Dialogue and Reconciliation Team (KNDR),
resulted in the formation of a Coalition Government and effectively restored calm in the country.
The agreement also laid the foundation for the formulation and implementation of constitutional and
institutional reforms that would guarantee the political stability of Kenya in the long term.
Four main agenda items for reform were identified by the Kenya National Dialogue and
Reconciliation Team, namely:
i)
ii)
iii)
iv)
Immediate action to stop violence and restore fundamental rights and liberties;
Immediate measures to address the humanitarian crisis, promote reconciliation, and
healing;
How to overcome the political crisis; and,
Addressing long term issues, including constitutional, legal and institutional reforms,
tackling youth unemployment, tackling poverty, inequality and regional development,
imbalances, consolidating national unity and cohesion, and addressing impunity,
transparency and accountability.
2.9. The Constitutional Review Process 2008
Given these circumstances, formation of the Coalition Government faced a challenge and at the
same time provided an opportunity for a constitutional moment that Kenyans could use to
reinvigorate the stalled constitutional process. Globally most recent constitutions have been made in
the aftermath of civil conflicts and, as far as the situation in Kenya is concerned, an important task of
the process is to promote reconciliation and national unity.
To that end, two key pieces of legislation that have revitalised the constitutional review process are
the Constitution of Kenya Review Act (2008) (Review Act (2008)) and the Constitution of Kenya (Amendment)
Act (2008). The purpose of the Review Act (2008) is “to facilitate the completion of the review of the
Constitution of Kenya.” The Act set up the Committee of Experts as an organ of review and gives it a
legal mandate to identify and resolve outstanding issues before preparing a draft constitution to be
adopted by Parliament and subject it to a national referendum.
In addition to the Committee of Experts, the other organs of constitutional review as identified in
Section 5 of the Act are:
•
•
•
The Parliamentary Select Committee (PSC), which is a cross political party committee with
twenty seven members drawn from the various parliamentary political parties;
The National Assembly (NA); and
The Referendum.
These organs are guided by specific principles laid out in Section 6 of the Review Act. Under these
principles, the review organs are to:
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(a) ensure that the national interest prevails over regional or sectoral interests;
(b) be accountable to the people of Kenya;
(c) ensure that the review process accommodates the diversity of the people of Kenya including socio-economic
status, race, ethnicity, gender, religious faith, age, occupation, learning, persons with disabilities and the
disadvantaged;
(d) ensure that the review process―
(i)
provides the people of Kenya with an opportunity to actively, freely and meaningfully
participate in the process;
(ii)
is guided by the principle of stewardship and responsible management;
(iii)
is conducted in an open manner; and
(iv)
is guided by respect for the principles of human rights, equality, affirmative action, gender
equity, and democracy;
(e) Ensure that the outcome of the review process faithfully reflects the wishes of the people of Kenya.
The Constitution of Kenya Review Act (2008) was enacted to facilitate the completion of the review of the
Constitution of Kenya. Under Section 4, the new constitution should enable Kenyans achieve the
following:
•
•
•
Live in peace, national unity and in a republic of Kenya which enjoys integrity in order to safeguard the wellbeing of the people of Kenya;
Be governed under a democratic system of government that guarantees good governance, respect for the
constitution itself, rule of law, human rights, gender equity and equality and affirmative action;
Live in a country where(i) Divisions of responsibility among the various state organs including the executive, the
legislature and the judiciary is recognized and demarcated;
(ii) the peoples’ participation in the governance of the country is assured through democratic, free
and fair elections and the devolution and exercise of power;
(iii) there is respect of ethnic and regional diversity and communal rights;
(iv) there is an equitable frame-work for economic growth and equitable access to national
resources ;
(v) people fully participate in the management of public affairs; and
(vi) there exist conducive conditions for free exchange of ideas...
The new constitution is also expected to guarantee regional and international co-operation to ensure
economic development, peace and stability and to support democracy and human rights. Lastly it is
expected to commit Kenyans to peaceful resolution of national issues through dialogue and
consensus.
Besides the Constitution of Kenya Review Act (2008), there are other constitutional and legislative
changes that influence the course of the current constitution making exercise. These changes were
introduced pursuant to the Kenya National Dialogue and Reconciliation process. The Constitution of
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Kenya [Amendment] Act No. 1 (2008) was passed in response to Agenda Item 3 on how to overcome
the political crisis and deadlock following the disputed presidential election results in December,
2007. It sought to entrench the political agreement reached by the Kenya National Dialogue and
Reconciliation Team. In this regard, Parliament was authorised to enact legislation concerning the
Coalition Government, and appointment and termination of the offices of the Prime Minister (PM),
Deputy Prime Ministers (DPMs) and Ministers as well as to determine their functions. The new
cabinet would consist of the President, the Vice-President, Prime Minister, two Deputy Prime
Ministers and the other Ministers.
The National Accord and Reconciliation Act (2008) (The National Accord) reinforced the Constitution of
Kenya [Amendment] Act No. 1 of 2008 by giving effect to the agreement of the two Principals to
establish a Coalition Government and foster national reconciliation. The issue that arises in relation
to this Act in the context of the current constitutional review process is the terminal effect that a new
constitution would have on it. The Act would cease to apply upon dissolution of the tenth
Parliament, if the Coalition is dissolved, or a new constitution is enacted, depending on whichever is
earlier. This shows that the Coalition arrangement is transitional in nature and a new constitutional
settlement is necessary for a stable transition.
The Constitution of Kenya (Amendment) Act (2008) is of great relevance because it establishes a
procedure for the replacement of the current constitution with a new one. In doing so, it
contemplates comprehensive reforms. More importantly, the Act requires that the draft Harmonised
constitution be adopted by the people of Kenya in a referendum. Other changes brought about by
this Act include establishment of the Interim Independent Electoral Commission of Kenya (IIEC),
the Interim Independent Boundaries Commission (IIBRC), and the Interim Independent
Constitutional Dispute Resolution Court.
The function of the IIEC is to reform the electoral process and management of elections in order to
institutionalize free and fair elections. Importantly this body is mandated to organise a referendum in
relation to the adoption of a new constitution. The mandate of the IIBRC is to make
recommendations to Parliament on the delimitation of constituencies and local authority electoral
units, and the optimal number of constituencies on the basis of equality of votes, taking into
consideration changing dynamics of demographics. The Interim Independent Constitutional Dispute
Resolution Court has been granted exclusive original jurisdiction to hear and determine only matters
arising from the constitutional review process.
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CHAPTER 3: METHODOLOGY AND PUBLIC PARTICIPATION
3.1. The Methodology of the Committee of Experts
In defining the methodology for its work, the Committee of Experts on Constitutional Review
devised several approaches. The CoE’s methodological approach is based on its statutory framework
and includes high level meetings, participation in local and international fora, research studies,
thematic consultations, expert consultations, civic education, media appearances, training and
engagement with the Reference Group. Furthermore, the CoE continues to promote political,
religious and cultural consensus on the identified contentious issues.
Therefore the key elements informing the CoE’s methodology are:
•
The Committee’s statutory timeframe: section 28 of the Constitution of Kenya Review Act (2008) provides
that the CoE “shall complete its work within a period of twelve months.” The legal definition of these
“twelve months” is one of the clarifications and amendments that the CoE successfully sought from
Parliament. The Review Act (2008) commenced on 22nd December 2008 yet the members of the
CoE were not sworn into office until 2nd March 2009; the CoE lost three (3) months ab initio
and therefore in reality initially only had nine (9) months in which to complete its work until the
constitutive statute was amended in July 2009 through the Statute Laws (Miscellaneous) Act (2009).
Other than section 28 and as noted below the other statutory timelines are mainly contained in
sections 32 - 35; 37; 43; and 47 of the Review Act (2008). The now amended provisions of section
28 notwithstanding, the members of the CoE immediately agreed on assuming office, on 2nd
March 2009, that they would complete their work within the statutory period if not earlier.
•
The obligatory statutory methodological framework especially the elements contained in
sections:
- 4, Object and purpose of the review;
- 6, Guiding principles of the review organs;
- 23, Functions of the CoE;
- 29, Reference materials;
- 30, National discussion of draft constitution;
- 31, Reference Group;
- 32, Approval of draft constitution by Parliamentary Select Committee; and
- 33, Debate of draft constitution by the National Assembly
•
•
The participatory and consultative nature of Kenya’s constitution-making tradition; and
The CoE’s Operational Plan, 2009 - 2010
3.2. The Statutory Base of the CoE’s Methodology as per the Constitution of Kenya Review
Act (2008)
The methodology adopted by the CoE in order to fulfil its mandate is firstly informed by section 23
of the Review Act (2008) as read together with the other provisions of the Act, in particular sections 4,
6, 29-33 thereof. Section 23 of the Review Act (2008) refers to the powers and functions of the CoE,
which are geared to the delivery of a Harmonised constitution for Kenya. Sections 23 (a) & 23 (b)
16
delimit minimum obligatory statutory criteria for the Committee to use in identifying issues that are
“agreed” and “not agreed upon” or “contentious” in the constitutional review process. Sections 23 (a & b)
provide that:
The Committee of Experts shall –
(a) identify the issues already agreed upon in the existing draft constitutions;
(b) identify the issues which are contentious or not agreed upon in the existing draft
constitutions
The “draft constitutions” referred to in sections 23 (a & b) are identified in section 29 of the Review Act
(2008). Section 29(b) defines the first two draft constitutions to be examined by the CoE as: “the
various draft constitutions prepared by the Commission and the Constitutional Conference”; i.e. the September
2002 draft constitution prepared by the Constitution of Kenya Review Commission (hereinafter the
Ghai Draft or CKRC Draft) and the draft that emerged out of the National Constitutional Conference
on 15th March 2004 (hereinafter the Bomas Draft). Section 29(c) defines the third constitutional draft
as “the Proposed New Constitution, 2005” (hereinafter the PNC or Wako Draft).
Section 29 also acknowledges the rich base of resource materials developed out of the previous
review processes and places a statutory obligation on the CoE to build on the work of the CKRC
rather than beginning anew. At section 29 the Review Act (2008) provides that the “Committee of
Experts shall draw upon the views and materials collected or prepared by the various organs of the review under the
expired Act….” Thus the CoE’s consultative role is far more limited than that of the CKRC. In fact
section 23(c) emphasises that the CoE shall solicit “written memoranda and presentations on the contentious
issues” and conduct “thematic consultations with caucuses, interest groups and other experts” (section 23(d)).
Whilst section 29 (a) obligates the CoE to draw upon “the summary of the views of Kenyans collected and
collated by the Commission.”1
Section 29 also provides for the CoE to draw on other reference materials such as “documents reflecting
political agreement on critical constitutional questions” however the statutory requirement that the CoE
specifically relies on the three previous drafts in identifying areas of agreement and contention is
further reinforced by section 30(1) of the Review Act (2008) which provides that:
The Committee of Experts shall study all existing draft constitutions and such other material as it may
consider appropriate and prepare a report which shall identify –
(a) the issues that are not contentious and are agreed upon; and
(b) the issues that are contentious and not agreed upon.
Sections 30 – 33 of the Review Act (2008) not only reinforce the statutory minimum criteria for the
identification of “issues that are agreed” and those that are “contentious”. They also mandate the CoE to
propose means of resolution and stipulate the minimum statutory methodology for preparation of
the CoE’s reports; drafts and consultations on them. Including the order and timing of their
publication for submission to the public; the PSC; National Assembly and ultimately the Attorney
General for the referendum draft.
This report constitutes the first statutorily mandated and required report of the CoE provided for
under section 30 (1) and is published in conjunction with the “Harmonised draft Constitution” as
provided for under section 30(2) of the Review Act (2008). Section 32 (1) of the Review Act (2008)
1
Section 29(a); the “expired Act,” here is the Review Act (1997)
17
provides that the CoE “shall – publish the draft Constitution for a period of thirty days”. It is only after the
publication for the general public that the CoE shall submit the reviewed draft constitution and
report to the PSC as per section 32 (1(c)) of the Review Act (2008) which provides that the CoE will:
…present the draft Constitution and the report to the Parliamentary Select Committee for deliberation and
consensus building on the contentious issues on the basis of the recommendations of the Committee of Experts.
In so doing section 32(1(c)) clearly identifies the PSC as the key “consensus building” forum for the
review process. Nonetheless, the CoE has established an approach that is not only within the
provisions of the law but sought to promote as much public participation and consensus building as
is feasible within its limited mandate and timeframe as will be demonstrated in the subsequent
sections on how the CoE has gone about fulfilling its statutory mandate under section 23 including
the development and execution of its Operational Plan.
3.3. How the CoE is Approaching and Fulfilling its Mandate Under section 23 of the
Review Act (2008):
The approach of the CoE to its functions under section 23 exposes the extent of the CoE
consultation, activities carried out and the specific methods employed to deliver on the mandate.
This section highlights the progress of the review process in accordance with the functions and
powers of the CoE as defined in section 23 of the Review Act (2008) which requires the CoE to
undertake the following functions:
3.3.1. Identification of contentious and non-contentious issues (ss.23 (a & b)):
To be able to identify both contentious and non-contentious issues under section 23 (a) & (b), the
CoE clustered the various parts of the draft constitutions along themes, study groups and related
areas. The Committee isolated five clusters and assigned at least two members, to examine them as
shown in Table 1 of Annex 2.
The CoE:
a. Studied all existing draft constitutions as required under s.29, that is,
- The Constitution of Kenya Review Commission Draft Constitution of September 2002 (Ghai Draft)
- The National Constitutional Conference Draft of 15th March 2004 (Bomas Draft)
- The Proposed New Constitution (2005) (PNC or Wako Draft)
b. Consulted on the summary of views collected and collated by the former CKRC;
c. Examined documents reflecting political agreement on critical constitutional questions; and
d. Considered analytical and academic studies undertaken by CKRC and the National
Constitutional Conference,
e. Considered reports related to Agenda Four including:
- The Report of the Independent Review Commission on the General Elections held in Kenya on 27th
December 2007, 2008 (The Kriegler Report) on electoral reforms;
- The Report of the Commission to Investigate Post-Election Violence, 2008 (The Waki Report)
- The Report of the Committee of Eminent Persons on the Constitution Review Process, 2006 (The
Kiplagat Report)
- The Report of the Task Force on Judicial Reforms, 2009
f. Studied memoranda submitted to the CoE on what issues the public considered to be
contentious. In this respect it is important to note that:
18
-
The CoE made its first call for submissions on what Kenyans considered to be
contentious as early as 30th March 2009, that is, 28 days after the CoE was sworn in.
The CoE once again repeated its call for submissions on what the public considered
contentious in mid April 2009 to ensure that as many Kenyans as possible were aware of
the opportunity to submit their views.
12,133 responses were received to the CoE’s initial calls for memoranda on what the public
considered contentious.
The CoE identified the three contentious areas as being:
(i) Systems of Government i.e. the nature of Executive and Legislature;
(ii) Devolution; and
(iii) Transitional Clauses or Bringing the New Constitution into Effect
On 19th June, 2009, the CoE published adverts, inviting the public to submit memoranda on these
three areas in contention.
3.3.2. Solicit and receive from the public written memoranda and presentations on
the contentious issues (s.23(c)):
In the eight (8) months of its existence, the CoE has now collected a total of 26, 451 memoranda and
presentations from members of the public as compared to some 35, 000 written memoranda
collected by the CKRC in its five (5) years. Out of these submissions to the CoE, 5,212 were
received from organized groups (Civil society organisations 2073, political parties 88, the private
sector 50, religious organizations 2969, and statutory bodies 32). 107 organized groups were
women’s’ organizations. 1,917 were oral presentations from regional hearings and other various
consultations. The memoranda and presentations have informed the CoE’s identification of and
proposal for resolution of contentious issues. The CoE has devised several means to solicit written
memoranda and presentations including provincial/regional hearings and consultations.
Provincial/Regional hearings/consultations:
To be able to reach all the provinces within the strict timeline, the CoE reconstituted itself into three
groups and carried out regional public hearings that enabled members of the public across the
country to submit their views on the contentious issues. During the 20th – 25th of July, 2009
members of the CoE visited 18 locations in the 8 provinces of Kenya. These visits were dictated by
the circumstances and resources available to the CoE at the time. The specific locations visited by the
CoE were:
•
•
•
•
•
•
•
Rift Valley Province: Lodwar, Eldoret, Narok, Nakuru and Maralal;
Nyanza Province: Kisumu and Kisii;
Western Province: Kakamega;
Central Province: Nyeri and Thika;
Eastern Province: Kitui, Machakos, Meru and Isiolo;
North Eastern Province: Garissa; and
Coast Province: Mombasa, Kilifi and Wundanyi.
6,046 members of the public attended these consultations. The hearings were publicised through
print, electronic and community media throughout the Republic.
19
3.3.3. Undertake thematic consultations with caucuses, interest groups and other
experts (s.23 (d)):
The CoE fulfilled the function of thematic consultations from, at least two perspectives technical
thematic consultations on the areas it had identified as being in contention: systems of government;
devolution and transitional clauses. Two more consultations were held on the issues of the electoral
system, affirmative action and inclusiveness. Experts and representatives of relevant sectoral
institutions were invited to these consultations. A detailed calendar of these consultations can be
found in Table 1 of Annex 3.
The second approach was to hold sector specific consultations with the private sector, political
parties, the religious sector and civil society on the contentious issues, where they also had the
opportunity to raise issues of concern to them. A detailed calendar of these consultations including
the number of participants who attended them can be found at Table 2 of Annex 3. Representatives
of all forty seven registered political parties attended two such fora, which included a two day retreat
at which presentations on systems of government were made. The sectoral consultation with
religious groups was attended by 214 participants most of whom were representatives of Christian
organisations, who presented their memoranda on what they considered to be contentious as well as
their perspectives on the identified issues in contention.
In addition to thematic consultations with caucuses and interest groups that it has initiated and
facilitated, the CoE has held panels and participated in the fora of various other institutions. A
detailed description of these panels can be found in Annex 4. All the members of the CoE have also
responded to requests for further consultations by various caucuses and interest groups on the
constitutional review process or Agenda Four related discussions. The CoE members participated in
and/or made presentations to over fifty-three (53) such meetings including fora organised by the
Minority Rights Consortium, the National Council of Churches of Kenya (NCCK) and various other
interest groups and networks; the details of some of which are contained in Annex 5 of this report.
3.3.4. Carry out or cause to be carried out studies, research and evaluations
concerning the constitution and other constitutions and constitutional systems (s.23
(e)):
The CoE has set up a library with relevant resources on constitution-making globally including
acquisition of all the constitutions in the world. The CoE has also carried out research and has seven
in-house researchers to assist it in this task. It has produced and continues to make reports and
evaluations of all the views submitted by Kenyans, which are currently in the library.
3.3.5. Articulate the respective merits and demerits of proposed options for resolving
the contentious issues (s.23 (f)):
The CoE adopted methodology for how it would identify and resolve the contentious issues.
Furthermore and in accordance with sections 30 and 31 of the Review Act (2008) the CoE has held (at
least three meetings) and will continue to hold consultations with the 30 members of the Reference
Group, and other interest groups that include civil society, the religious sector, the private sector, the
47 registered political parties, parliamentary political parties, the two Principals to the Coalition
20
Government, as well as the other review organs the PSC and parliamentarians. More specifically, the
CoE has devised, at least, six (6) approaches to resolving the contentious issues:
•
By considering public views: The CoE considered the views received from the public and adopted
majority opinion unless, it was against a constitutional principle or is manifestly against the rights
of a minority in need of protection. In this regard, the CoE has carefully analysed the views
received from the public in various fora.
•
Thematic consultations: The CoE has held various thematic consultations which sought expert
opinion and resolutions that emanated from specialized workshops and meetings. The CoE has
held workshops and consultations on the three contentious issues as well as the issues of
inclusivity and affirmative action and electoral systems. The CoE particularly sought expert
opinion on the operationalisation of the principles of inclusivity and affirmative action, which
although agreed in the three drafts, differ in operationalisation in respect of the issue of
representation in electoral bodies and therefore required expert opinion to ensure a technically
sound approach. Due to the differences in operationalisation of the inclusivity and affirmative
action principles in the drafts as well as the experience of the post electoral violence, the CoE
also thought it prudent to seek expert opinion on the issue of electoral systems and
representation of the people and continues to consult on this issue. These consultations
included an in-house meeting with the Interim Independent Electoral Commission (IIEC).
•
Sectoral consultations: these consultations have enabled dialogue with sectors that have concerns
about particular aspects of the drafts. They have consisted of meetings with and the solicitation
of views and proposals from: political parties, religious organisations, the private sector and civil
society.
•
Expert engagement: the CoE engaged various specialists on technical areas such as drafting, fiscal
and financial devolution and delimitation of electoral units. The CoE considered such reports in
arriving at its proposals for resolution and harmonisation.
•
Internal discussions of CoE: As provided for in section 23(4) of the Review Act (2008) the CoE
members discuss and interrogate every issue, examining the merits and demerits and usually
arrive at decisions by consensus. However consensus is not necessarily unanimity and the Review
Act (2008) contemplates a vote where consensus is not reached, in which case any member
holding a dissenting view may record it if they so choose. Nonetheless the CoE encourages,
prefers and has largely carried its decisions by consensus.
•
Consultations with the Reference Group: The Review Act (2008) provides for a Reference Group of
“thirty representatives chosen by the interest groups identified in the Fourth schedule.” Due to an anomaly in
the original version of the Review Act (2008) the Fourth Schedule was not published until late July
2009. The correction of this anomaly was one of the amendments sought by the CoE. Pursuant
to the amendment of the Review Act (2008) and publishing of its Fourth Schedule, the CoE has
held three joint meetings with members of the Reference Group (RG). The first RG meeting was
held on the 11th of August, 2009 at the Hilton Hotel with 46 participants. At this meeting the
CoE brought the RG members up to date on the process and together they defined a working
methodology.
The second joint meeting of the CoE and the RG was held on 24th September, 2009 where it
was resolved as follows:
(1) That the Reference Group will appoint its own spokesperson.
21
(2) That the CoE will harmonize and share with the Reference Group information received from
all respondents to ensure that the Reference Group feeds into the process.
(3) That for the future the Reference Group is to be kept in the know.
(4) That the Reference Group underscores the importance of complying with the law in discharging
its mandate.
(5) That the Committee of Experts will facilitate meetings of the Reference Group when they want
to meet on their own.
(6) That the experts being the experts, the Committee of Experts will present to the Reference
Group expert decisions on the contentious issues.
(7) That the Reference Group is fully supportive of the work of the Committee of Experts and the
constitutional review process.
(8) That the Reference Group does not want to be perceived as being in the way of the completion
of the process.
The third joint meeting between the CoE and the RG was a retreat held in Nanyuki, from
14th – 16th October, 2009 where the following resolutions were reached:
(1) The path to reforms
The CoE and the Reference Group discussed and appreciated that the path to constitutional and
institutional reform in Kenya has taken exceedingly long and that there was urgent need for a new
constitutional order to avert the type of Kenya we all witnessed in the last post election violence in
which Kenyans killed one another. The CoE and the RG noted that over 1200 Kenyans died,
300,000 were displaced and millions worth of property destroyed. Members of the RG and CoE
resolved that they would not wish this state of affairs to be repeated. The RG and the CoE observed
that Kenyans were capable of making suitable choices to give effect to the provisions of sections 4 and
6 of the Constitution of Kenya Review Act (2008) which refer to the objects and principles of
constitution making in Kenya respectively.
(2) Methodology and times lines
The CoE and the RG appreciated the times lines in the making of the Constitution. It is
appreciated that the process must somewhat come to an end to give Kenyans the long awaited
Constitution. In this regard the CoE has conducted consultations to the best of its ability within the
timelines, and continues to consult.
(3)Transitional clauses
The RG and the CoE appreciated the contentions on the transitional clauses of the past three
drafts; and are working to ensure that the new constitution remains the basis for peaceful transition
to a new order, inclusion and acknowledgement of past mistakes and the need to remedy them.
(4)Devolution
The RG and the CoE acknowledge that while Kenyans want devolution, it is important that the
levels of devolution are carefully thought out so that the architecture does not become impossible to
implement and or fail the very purpose for which it was intended; the RG and the CoE agreed on
the need, formulation and design of devolution at three levels of government.
(5) The Kadhis’ Courts
The RG and CoE appreciated that the Kadhis’ Courts raise various concerns and they are
important socio-cultural issues in our society. To this extent, the RG and CoE have deliberated on
the issue of the Kadhis’ Courts and there is an emerging consensus. While members of CoE and
RG will continue to educate and engage with Kenyans and religious leaders, the CoE and RG wish
to affirmatively state that the Kadhis’ Courts issue will no longer be a reason to object to the process
of constitution making or to defeat the draft constitution.
22
(6) Systems of government
The CoE and the RG acknowledged that the issue of which system of government to adopt is
contentious to Kenyans generally. We acknowledge the need to carefully design a system of
government that resonates with the views and needs of Kenya.
(7) Way forward
The RG and the CoE re-affirmed their commitment to give Kenyans a new Constitution. Members
of the RG declared their confidence in the CoE under the chairmanship of Mr. Nzamba Kitonga.
The RG and the CoE urged all members of the public, the political class, civil society, and the
religious sector to support the completion of this process to give Kenyans and Kenya a new
constitution.
The CoE plans that as soon as the Harmonised Draft Constitution and this report are published, it
will hold a series of consultations/negotiations with various interest groups including the other
organs of reform under Agenda Four such as the Interim Independent Electoral Commission (IIEC),
the Interim Independent Boundaries Review Commission (IIBRC), and the Truth Justice and
Reconciliation Commission (TJRC) so that together these bodies can inform the draft where it
concerns matters that they are mandated to deal with and pertinent to constitutional review.
3.3.6. Make recommendations to PSC on the resolution of contentious issues for the
greater good of the people of Kenya (s.23 (g)):
The CoE has met the Parliamentary Select Committee on the Review of the Constitution three times,
to discuss the progress of the constitution review. As soon as the CoE publishes its report and the
Harmonised Draft Constitution it will share them with the PSC as by law. These documents contain
the recommendations that the CoE is making for the greater good of the people of Kenya.
3.3.7. Prepare a Harmonised Draft Constitution for presentation to the National
Assembly (s.23 (h)):
The CoE has been working on the Harmonised Draft Constitution since 2nd March, 2009 and as the
law requires the CoE will make its first draft available to the public (who will have 30 days to
comment on it), after which period the CoE will incorporate the views received from all Kenyans.
The CoE will then as per statute send the revised draft to the PSC who will have 21 days to comment
on it, after which it will come back again to the CoE for further input, if any, before it is finally send
to the National Assembly for their debate and input.
3.3.8. Facilitate civic education in order to stimulate public discussions and
awareness on constitutional issues (s.23 (i)):
The CoE conceptualises civic education, on at least three levels. First, at the general level the CoE
has ensured that Kenyans understand that the process is ongoing and explained what the timelines as
well as its mandate are; held debates generally on the constitutional process and met various
stakeholders. At the second level, the CoE will now narrow civic education to the specific drafts (the
first to be published, and the final draft). At the third level is civic education during the referendum
period. The CoE has, however, conducted civic education and public awareness initiatives including
training for media practitioners during this time as illustrated in the tables contained in Annex 6.
23
3.4. CoE’s Operational Plan, 2009-2010
In addition to the statutory methodology, the complementary approach of the CoE is captured in the
CoE’s Operational Plan, 2009-2010 (hereinafter “the Plan, 2009-2010”). The development of the Plan,
2009-2010 was in itself necessary to define the modus operandi of the CoE. The Plan, 2009-2010 was
developed in April, 2009 a month after the swearing into office of the CoE members. The Plan,
2009-2010 was drafted to help the CoE to achieve its objectives and finally deliver on its mandate.
The Plan is the medium via which the CoE interacts with the Kenyan public and other stakeholders
during the review process. The Plan, 2009-2010 outlines several important aspects that would assist
the CoE in delivering on its mandate: the first aspect of the Plan, 2009-2010 was to identify overall
key result areas that would ensure that the technical writing of the draft is not defeated by other
competing interests and therefore to ensure success is realized in the review process. The second
aspect of the Plan, 2009-2010 was to identify and conceptualize what would be the programmes of
the CoE. To this extent, the CoE identified four (4) programmes. The third aspect of the Plan, 20092010 was to outline the activities to be carried by the said programmes and to budget those activities.
3.4.1. The Key Result Areas:
The CoE identified these areas as playing a crucial role in the finalization of the review process. The
CoE believes that a draft constitution that does not agree with these broad areas would be difficult to
sell. The particular areas of operation that require not only the CoE but all Kenyans to engage with
are:
•
Financial independence and a fully capacitated secretariat: the CoE acknowledged that to complete its
work without any difficulties, its secretariat must be fully capacitated and with the necessary
resources to support its core function. Some of the important support includes a fully resourced
research and technical department.
•
Political consensus and agreement: the CoE realises that unless there is political will for this process
and tolerance the realization of the draft constitution will be an uphill task. It is important to
remind Kenyans that political disagreements played and have the potential of playing a divisive
role in the realization of the long-awaited constitution.
•
Religious and cultural consensus: religious and cultural intolerance are forces that could derail the
review process and need to be addressed. There is need for dialogue with and between religious
and cultural actors, organisations and institutions to address concerns that they may have.
•
Effective public participation in the review process: for a long time now, the people of Kenya have been
promised a new constitution several times without success. There is therefore apathy and
scepticism. The constitution is one of those political promises that keep being made to Kenyans
during every election period and as soon as those promising it get into power, they forget it and
this has made Kenyans sceptical about the review process. To that extent unless the general
public buys into the mandate of the CoE and stops comparing it to that of the Constitution of
Kenya Review Commission, effective public participation will be a challenge to the draft
constitution.
•
A draft constitution by the due date: the mandate of the CoE is to deliver a Harmonised Draft
Constitution within twelve (12) months. This mandate has often been compared and therefore
confused with that of the former CKRC whose timeframe was five (5) years. It is important
24
therefore that the public understands that the 12 months is sufficient to harmonize the already
existing views that they had given to the CKRC and the draft constitutions, that is, the CKRC,
Bomas and Wako Drafts.
•
Affirmative Referendum Result: the CoE realises that a yes referendum result to a democratic and
good constitution is good for the country and towards the realization of the new constitution
itself, in the first instance and secondly in its implementation and enforcement. A lot of work
needs to be done to avoid the kind of scenario that obtained in the 2005 referendum in which
two polarising camps emerged between the ‘yes’ and ‘no’ for the draft.
•
Harmonised constitution: this is the intended result of this process and it is realized within the CoE
that the final and Harmonised draft should not only be seen as harmonizing the previous
constitutional drafts, but the people of Kenya in the light of their various divisions along
political, ethnic, class and regional lines. It should be a draft that harmonizes the various
competing interests. It ought to be a draft that is a true reflection of the aspirations of the
Kenyan nation and a draft that reflects the provisions of sections 4 and 6 of the Review Act (2008)
which speaks to why we are making the new constitution for Kenya and the principles of
constitution-making respectively.
3.4.2. The Programmes of the CoE:
To be able to affect its mandate, engage in the relevant activities and achieve the proposed results,
the CoE proposed as part of its approach to completion of the review process, the following four
programmes:
•
Finance and Administration: since the CoE is funded from the Consolidated Fund and uses public
funds, this programme ensures proper use of public resources as well as managing the finances
of the CoE from the Government and development partners who support this process
financially.
•
Drafting, Research & Technical support: this department offers relevant support such as drafting,
research and any technical support needed by the experts in the implementation of its mandate.
The department undertakes the collation and collection of views of Kenyans, documents them
and produces relevant reports as well as maintaining a rich library to inform the process.
•
Civic Education, Mobilization & Outreach: this programme is responsible for educating the public on
all matters constitutional through civic education and also organizes all outreach activities of the
CoE as well as handling all logistical arrangements to support the core function of the CoE.
•
Public Information & Media: this programme deals with the dispatch of information to the public
and liaises with the various media houses; it is also responsible for giving accurate information
on the work of the CoE collaborating with the media to ensure that activities of the CoE are
covered, as well as being responsible for the media strategy of the CoE.
3.5. High Level Meetings
To start off its work, the CoE engaged several key national and international decision makers many
of whom are instrumental in this process with a view to ensuring that they buy into the process and
25
render it their unconditional support. Several such meetings therefore took place at the beginning of
and continue to be part of the CoE’s approach:
•
Meetings with the Ministry of Justice, National Cohesion & Constitutional Affairs: The CoE upon realising
its strict timeline on the day its members were sworn into office, embarked on a series of
meetings with the line ministry, the Ministry of Justice, National Cohesion and Constitutional
Affairs (MoJNCCA). The CoE met with the then Minister for MoJNCCA, and then
subsequently several times with the Permanent Secretary of MoJNCCA to ensure a speedy set up
of the CoE’s secretariat, finalization of its operational budget and the acquisition of the necessary
tools including suggestions by the CoE of relevant amendments to the Review Act (2008) to cure
some anomalies therein that included, for example, the start date for the CoE.
•
Meetings with PSC: As noted earlier the CoE has held three meetings with the Parliamentary
Select Committee (PSC) on the review of the Constitution on 24th April 2009, 12th October, 2009
and 26th October, 2009. The meetings were to appraise the PSC of CoE’s understanding of the
Review Act (2008) thereby pointing out the challenges posed by the law as well as pointing out
certain administrative obstacles such as the absence of a ready fund to be administered by the
CoE contrary to the provisions of the law. The meetings also discussed progress, challenges and
opportunities in the review process and the role to be played by the PSC during this process.
•
Meeting with the two Principals: The CoE met with the two Principals, His Excellency the President
and the Right Honourable Prime Minister to discuss the review process. It is during this meeting
and upon request and mutual understanding that the two Principals expressed their support for
the CoE and finalization of the process. The meeting with the two was very important as they
shape political opinion over the contentious issues that shape the review process.
•
Meetings with Development Partners: Since the law also gives the CoE independence in terms of its
work and fundraising, the CoE met and continues to meet with several development partners
who expressed generous support for the process to the tune of USD 5.4 million. This support
from development partners has ensured that the CoE meets its budgetary needs and the result
area of financial independence and a well capacitated secretariat and lent relevant support to the
process.
26
CHAPTER 4: CHALLENGES TO THE CONSTITUTIONAL REVIEW
PROCESS
Ever since the repeal of section 2A of the Constitution of Kenya in 1991, it has been evident that to
really have a peaceful and democratic system of governance in the country the entire constitutional
framework would have to be overhauled. There have been various stages in the review of the
constitution and since these are well covered in earlier chapters of this report, the focus of this
chapter shall be on the challenges faced in realising a new Harmonised constitution.
4.1. Constitution making in the Post-2007 Conflict Context
As noted earlier the Committee of Experts on Constitutional Review is one of the bodies that were
established within the context of Agenda Item Number Four (4) of the Kenya National Dialogue and
Reconciliation. Agenda Item Number Four of the Kenya National Dialogue and Reconciliation is
intended to address the long term causes of conflict in Kenya. The identified persistent causes of
conflict in Kenya include: the need for constitutional, legal and institutional reforms; the need for
land reform and inequality amongst others. Key to effectively addressing all the other identified long
term causes of conflict is the peaceful resolution of the constitutional question.
Kenya has therefore come full circle, the inability to create a new constitutional framework; including
the unsuccessful 2005 referendum and its resultant grievances are now acknowledged as contributing
factors to the post-electoral conflict witnessed in December 2007 – February 2008. Yet the 2005
constitutional referendum process and its aftermath have birthed new challenges to constitution
making in Kenya namely a culture of suspicion, cynicism and apathy. Kenyans now express doubt
about their ability to realise a new constitution; they are anxious and worried about having to go into
another referendum process which they say they fear may further polarise the country and still not
yield a new constitution. They also wonder whether yet again they will give their views to a review
body only for a small elite to choose to go and produce a different document that does not embody
the citizens’ collective vision for the country. Kenyans are deeply suspicious of the political elite and
therefore a constitution review process that vests so much of the decision making in political
institutions in particular Parliament and parliamentary institutions. Two of the review organs the
PSC and National Assembly are parliamentary; this in it of itself has led to cynicism about the current
review process.
Suspicion of potential politicisation of the process has manifested as:
• Continuous questioning of the process and requests to the COE to “amend the process;” or include
particular groups of citizens; remove the requirement for a referendum or provide for a Yes/Yes
referendum.
• Legal challenges to the process including a suit that has been filed on the premise that
parliamentarians cannot be entrusted to represent citizens’ interests in the constitutional review.2
See High Court of Kenya at Nairobi, Petition No. 55 of 2009, Bishop Joseph K. Methu and 33 others – v – The Honourable
Attorney General. This case was filed on 26th January 2009, almost a month before the members of the CoE
were gazetted let alone sworn into office.
2
27
As a post-conflict society, Kenya in 2009 is also a society characterised by anger and a general
suspicion of government institutions and initiatives. This is in direct contrast to the post -2002
election society in which the National Constitutional Conference was held; where Kenyans were
rated as the most “optimistic” people in the world. Some of the institutions key to the constitutional
review process such as the Electoral Commission (which oversaw the 2005 Referendum) lost
credibility during the 2007 elections and were so mistrusted that an entirely new body had to be
formed (the Interim Independent Electoral Commission (IIEC)). The constitution review process
itself is therefore an important step in the restoration of public confidence in the country’s
governance institutions a challenge that did not face the CoE’s predecessor the Constitution of
Kenya Review Commission (CKRC) on quite the same scale.
The climate of suspicion has led to the politicisation and personalisation of various constitutional
issues and positions. New gatekeepers of constitutional reform have emerged with entrenched hard
line positions – if it’s not them drafting the constitution in their own particular way, then Kenya will
not be allowed to have a new constitution. So that in the discourse on systems of government for
example, the choice of a particular system of government is perceived as being based on affiliation
with a particular political party or politician rather than a systematic analysis of the merits and
demerits of a particular system. Given Kenya’s ethno-political patterns, this discourse also bears
ethnic overtones. Whereas a constituency within the religious sector, which historically has been a
key ally for constitutional reform, is now polarised on the question of whether or not to allow the
continued constitutional entrenchment of Kadhis’ Courts, providing new fodder for anti-reformists.
4.2. The legacy of the 2005 Referendum: A culture of dishonesty, suspicion, cynicism
and apathy
Not only did the 2005 Referendum birth suspicion and cynicism it led to a culture of dishonesty and
apathy. One of the questions that the COE was confronted with during public hearings was literally:
“why should we give you our views only for a small group of people to go and change what we say?” Further,
members of the public allege that it is now habitual in Kenya to establish commissions, whose
reports are allegedly “never made public,” or where they are made public, they say that the reports are
then “shelved to gather dust;” thus they ask, why should they bother to offer their views or participate at
all.
Two other legacies of the 2005 Referendum pose serious challenges to the current review process
these are:
•
•
the evolution of new anti-reform energies; and
An emerging perpetual cycle of contention.
The new anti-reform energies are best characterized by several cases initiated to frustrate the
intended outcome of the 2004 National Constitutional Conference that questioned various aspects of
the review process, including whether or not the CKRC had the mandate to make provisions for a
new judicial framework in a new constitution, filed and heard by the judiciary itself!
Kenya is now therefore witnessing the emergence of a perpetual cycle of contention. In which issues
which were settled and agreed prior to the 2005 National Referendum, become new avenues of
tension and further sources of polarisation of the Kenyan society. This was witnessed in respect of
the issue of the Kadhis’ Courts. Until 2002, the religious sector was united on the need for
constitutional review, indeed the Ufungamano Initiative (an interfaith forum) was key to the
formation of the CKRC and the establishment of a pro-people constitutional review process. Yet in
28
November 2005 the continued constitutionalisation of the Kadhis’ Courts became one of the issues
of concern between Christians, Muslims and Hindus. Whereas all the CKRC Drafts and the Proposed
New Constitution provide for Kadhis’ Courts and the Summary of the Views of the Kenyan people as
documented by the CKRC illustrates overwhelming support for the continued retention of the
Kadhis’ Courts within Kenya’s constitutional framework; and despite most delegates to the National
Constitutional Conference, voting in favour of retention of the Kadhis’ Courts, there has been a
clamour by some members of the religious sector for the identification of the Kadhis’ Courts as an
issue in contention.
As noted above, the tension vis a vis the continued constitutionalisation of the Kadhis’ Courts,
provides fodder for anti-reformists. This tension has a potential for never being resolved – thus
ensuring a permanent obstacle to constitutional reform. Posing the danger of Kenyans being trapped
in a perpetual cycle of contention, ergo conflict, finding new reasons to pull apart rather than
together. The Kadhis’ Court question has been politicised and has international dimensions – with
allegations that it is fuelled by conservative international political interests. The constitutionalisation
of the Kadhis’ Courts also goes to the territorial integrity of Kenya as the Kadhis’ Courts are part of
Kenya’s original constitutional settlement that ensured that the 10 mile Coastal Strip became part of
the country’s territory. This issue also raises the question of principled and honest negotiations
which have proved a challenge in Kenya’s constitutional review process. The refusal to honestly
state the basis of opposition renders the resolution of tensions difficult as energy is spent addressing
non-issues whilst the real sources of conflict remain unnamed and thus cannot be surfaced let alone
addressed.
4.3. The Challenge of the Statutory Framework, the Constitution of Kenya Review
Act (2008)
There are several challenges that have also been experienced due to the statutory framework for the
review or anomalies contained in the Constitution of Kenya Review Act (2008) itself; such as:
• The time frame;
• Statutory anomalies;
• The statutory methodology and definition of “contentious”;
• Lack of clarity about the differences between the CoE and CKRC processes; and
• The temporary nature of the COE.
Firstly the timeframe for the review process as originally contained within the Act was not clear and it
was rushed. An example is the original section 28 of the Act which provided that the review must be
completed within twelve (12) months from commencement of the Act (22nd December 2008) and
yet the members of the Committee were not sworn into office until March 2009, which meant that
by the time they took office already three (3) months had been lost therefore in actuality providing
only nine (9) months for the review. As noted earlier, the Committee successfully sought a
clarification and amendment of the Act to provide that time run from when they were sworn in. Yet
it is important that the reform process be undertaken and completed within the statutory period,
given the political dynamics of the 2011-2012 period. 2012 is an election year, thus the window for
reform is closing and if the constitutional referendum is not held before mid 2010, the country will
be in an electioneering mood which will not be conducive to the constitutional review process. The
risk of further polarisation and violence will be increased as the country approaches the election this
will be exacerbated if the new constitution is not in place.
29
Secondly the statute contained anomalies such as the provision for the Reference Group
(purportedly published in the Fourth Schedule), that the Committee was required to engage with, yet
at the time of the publication of the original statute there was no Fourth Schedule.3 So the Reference
Group could not be convened until August 2009 when the Constitution of Kenya Review Act (2008) had
been amended. The fact that the Fourth Schedule had not been published and the Reference Group
not convened, was a source of tensions and suspicion especially amongst the civil society and
religious sectors; some of whom did not understand that the Committee had no statutory powers to
convene the Reference Group outside of the parliamentary process.
Thirdly the statutory methodology for the identification of contentious issues to some extent
qualifies and defines the meaning of the term “contentious” in a manner that is not as broad as the
popular understanding of the word. In particular sections 23(a); 23(b); 29 and 30 of the constitutive
Act, require that in identifying contentious issues the Committee shall draw upon the views of the
people of Kenya as collected by the CKRC; study the two CKRC Drafts (the Ghai Draft and Bomas);
and the PNC (Wako Draft) and “shall identify” areas where these drafts agree and where they are not
agreed (areas in contention). The CoE does not therefore have an unfettered discretion in
determining what is contentious or not. This has both advantages and disadvantages. The advantage
lies in the fact that the statutory methodology establishes minimums for identifying what is
contentious and thus limits the scope of what can be classified as such which theoretically should
enable focus on and resolution of the presumably limited areas of “contention”. Furthermore the
statutory methodology enables the current review process to build on gains of the earlier review
processes in respect of reaching areas of agreement; inherent in this methodology is therefore an
assumption that if there is agreement on a principle in the CKRC and Bomas Drafts and the PNC,
consistent with the views submitted to the CKRC, there is agreement and consensus on the issue.
The disadvantage of the statutory methodology and obligation to identify areas of agreement in the
drafts is that it does not take cognisance of the fact that areas of contention emerged largely after the
views of the people had been collected. That since there was never an openly stated articulation of
what was actually contentious, they were never truly surfaced and guessing what they are does not
necessarily surface them; in fact it is politically expedient for those opposed to reform to identify a
plethora of other areas of contention. Worse still in fact several political actors deliberately
misrepresented areas of agreement between the various drafts as not being agreed during the 2005
Referendum campaigns. Most importantly the statutory qualifications on “contentious” and the
popular understanding of the term has become an area of contestation. So that whereas land is
generally an area of concern in Kenya and indeed historically a source of conflict there is generally
agreement between the views of the people as to how it should be treated thus the chapter remains
the same in all three drafts and is consistent with the views submitted to the CKRC. Yet due to lack
of clarity about the statutory methodology many critics of the CoE have faulted it for not labelling
the chapter as “contentious,” even despite being made aware of the fact that when the CoE did call for
written memoranda, the memoranda and presentations made to it, did not differ from the provisions
of the Land Chapter and therefore did not suggest a change in the views of the people on this issue.
An even more complicated variation of this problem has occurred in relation to the issue of the
Kadhis’ Courts. Again the principle is accepted and provided for in the three drafts and so cannot be
classified as an area of contention within the statutory requirement that such areas be issues that are
“not agreed upon within the existing draft constitutions”. These provisions in the three drafts are consistent
with the views as submitted to the CKRC. A constituency within the religious sector wants this issue
now declared “contentious” as it is an issue of concern to them. Given the statutory methodology the
question arises as to whether or not the CoE has the legal mandate and power to declare as
3
See sections 30 and 31 of the Constitution of Kenya Review Act (2008)
30
“contentious” a principle on which there is agreement between the drafts. The CoE has therefore
faced the challenge of effectively articulating to the religious sector that it does understand their
concerns, has heard them and is attempting to respond to them, but that there is a statutory
framework and methodology within which the CoE operates and therefore it does not enjoy an
unfettered discretion in identifying issues that are agreed upon and not.
Fourthly, there is a lack of clarity about the differences in the role of the CoE vis a vis that of the
CKRC. The CKRC process was extremely consultative with over two years dedicated to nothing but
consultations. Indeed the CKRC stands as the most travelled commission in the history of the
country having visited all 210 constituencies. As noted earlier, the CoE process was created with the
idea of building on the gains of this period and the CKRC work. The time period allocated for the
total CoE period, is shorter than the period over which the National Constitutional Conference
(Bomas) just one of the CKRC review phases run.4 The challenge that has confronted the CoE is
that there are segments of the public that still do not understand the differences between the
processes and seek to have a replication of the CKRC process; the design of the CoE process is
premised on the assumption that a lot was accomplished in previous processes and there is no need
to replicate work that has already been undertaken. The CoE therefore does not have a similar
mandate and/or capacity to undertake many of the tasks assigned to the CKRC. CoE’s capacity for
and mandate vis a vis consultations for example is limited to “thematic consultations” and consultations
on the issues in contention.5
Finally the fact that the COE is a temporary body in it of itself posed some challenges. Government
processes and procedures are not set up to deal with such bodies and no special provisions have been
made to address the needs of the Agenda Four bodies. Thus a lot of time was lost through the
bureaucratic procedures including the establishment of offices and securing of resources for the
review process.
4 The NCC run from September 2002 – March 2004, one and a half years, even if one takes into account the
period where the conference was disrupted by the prorogation of Parliament by President Moi, one still has a
period longer than a year.
5 Section 23(d) of the Review Act (2008)
31
CHAPTER 5: AGREED ISSUES IN THE HARMONISED DRAFT
CONSTITUTION
5.1. Introduction
As this report describes in Chapter 3 on methodology, the Committee of Experts had two main
tasks: (i) to identify contentious issues and to propose solutions to them and (ii) to harmonize the
matters that were agreed. Sections 23 (a & b), 29 and 30 of the Review Act (2008), provide that in so
doing, the main working documents of the Committee will be the CKRC Draft, the Bomas Draft and
the Proposed New Constitution (or Wako Draft). The CoE found that these three draft constitutions
were in agreement on many issues. Nonetheless, there were some differences which although not on
principle had: been drafted differently, or were no longer technically sound or are issues of concern
to some specific members of the public. Harmonization also involved editorial work. This chapter
discusses the harmonization of these issues. More detail is provided in respect of the sectoral
concern of the Khadis’ Courts and a brief explanation of how the Land Chapter, which stays virtually
the same in all three drafts and is consistent with the views submitted to both the CKRC and CoE,
has been treated.
As we note earlier in this report, in producing a Harmonised draft, the Committee is not only guided
by the existing drafts, but also the principles set out in section 4 of the Review Act (2008) and issues
that have arisen since the 2005 referendum. In particular the CoE as an Agenda Four body takes
cognisance of the recommendations of bodies that had undertaken work related to the 2007 postelectoral crisis, IREC and CIPEV(the Kriegler and Waki commissions) is reports on electoral reform
and the post-electoral violence as well as Kenya’s obligations in international law.
The Committee is required to assess all the provisions of the draft constitution against the principles
in section 4 of the Review Act (2008). It is not good enough for the Harmonised Draft Constitution to
restate the principles in section 4 although many of them are restated in Articles 12 and 13 and
elsewhere in all three drafts and therefore constitute agreed issues. In drafting the Harmonised draft
and making proposals, CoE is statutorily required to ensure that every aspect of the framework for
government and all the mechanisms for the protection of rights and securing democracy promotes
the section 4 principles.
In particular section 4 inter alia (amongst others) provides that:
The object and purpose of the review of the Constitution is to secure provisions therein –
(a) guaranteeing peace, national unity and integrity of the Republic of Kenya in order to safeguard the well-being
of the people of Kenya;
(b)establishing a free and democratic system of Government that guarantees good governance, constitutionalism,
the rule of law, human rights, gender equity, gender equality and affirmative action; …and
(k) committing Kenyans to peaceful resolution of national issues through dialogue and consensus
In essence harmonisation does not just mean the ensuring of agreement between drafts, this
agreement and proposed resolutions for such agreement are guided by the section 4 principles as well
32
as section 6 of the Review Act (2008), which provides that the CoE (and other review organs) “shall ensure that the national interest prevails over regional or sectoral interests”.
5.2. Technical and other similar changes
This section explains the more significant decisions that were made in instances where although
there was agreement between the drafts, there may have been a slight difference in drafting; or there
is an agreement in all three texts but it is technically unsound; or there is agreement on a principle but
the principle is not operationalised in the same way. The process of resolving these concerns
entailed not only undertaking editorial work, but also: seeking expert opinion in some instances;
ensuring compliance with international constitutional and human rights norms where they applied;
and overall the preparation of a constitution that best fulfils the goals of section 4 of the Review Act
(2008).
5.2.1. Citizenship
There is a difference between the CKRC Draft, the Bomas Draft and the PNC concerning the right to
citizenship. In one approach, people married to Kenyan citizens for more than seven years, children
adopted by Kenyans and people who would have been entitled to citizenship if the constitution had
been in effect in the past have a constitutional right to citizenship. In the other approach, such
people may apply for citizenship (which may be granted or refused). The Harmonised draft adopts
the first approach because it is what the people asked of the CKRC, and because it is in line with the
requirement in the Review Act (2008) that the new constitution guarantees human rights and, in the
case of the citizenship of adopted children is compliant with international law.
5.2.2. Commissions
The CKRC report notes the importance of independent constitutional commissions as bodies that
are separate from government and can protect constitutional provisions. It accordingly proposed the
establishment of 11 independent commissions as well as a Parliamentary Service Commission which
was to be independent of the government but a part of Parliament. In the Bomas Draft and the PNC
the number of independent commissions was increased to 15 (plus the Parliamentary Service
Commission).
A number of concerns have been expressed about the number of constitutional commissions
including the fact that they overlap and that some of them would assume tasks that are more
appropriately carried out by government. The Committee considers both these concerns to have
some substance.
There is international evidence that multiple commissions with overlapping mandates do not easily
achieve their objectives. Also, it is not desirable to take matters relating directly to the responsibilities
of government out of the control of government. To do so results in a gap of accountability – an
independent commission is not accountable to the people in the way the government is and cannot
be voted out of office if it fails in delivery.
Accordingly, the Harmonised draft retains eleven independent commissions (plus the Parliamentary
Service Commission) while allowing others to be established under Acts of Parliament. The Human
Rights Commission incorporates the Gender Commission proposed in two of the earlier drafts. It
has a very wide mandate to investigate matters concerning all aspects of human rights. The Public
Service Commission absorbs aspects of the work of the Health Commission and will oversee matters
33
relating to the recruitment and discipline of health practitioners. Salaries of these professionals will be
controlled by the Salaries and Remuneration Commission. However, Parliament will determine the
way in which other matters of policy relating to health will be managed.
The Harmonised draft includes the following permanent independent constitutional commissions:
(a) the Human Rights and Gender Commission;
(b) the National Land Commission;
(c) the Judicial Service Commission;
(d) the Public Service Commission;
(e) the Ethics and Anti-Corruption Commission;
(f) the Independent Electoral and Boundaries Commission;
(g) the Commission on Revenue Allocation;
(h) The Teachers’ Service Commission
(i) the Police Service Commission; and
(j) the Salaries and Remuneration Commission.
In addition, the Commission on the Implementation of the Constitution will exist for a limited
period of time to oversee the implementation of the Constitution. The Parliamentary Service
Commission remains as a commission separate from government but part of Parliament.
5.2.3. Prisoners’ rights
Earlier drafts contained lengthy provisions on prisoners’ rights. The Harmonised draft captures only
the principle on which these rights are based: human treatment and international standards.
5.2.4. Non-derogation clause
All the draft constitutions allow rights in the Bill of Rights to be limited in some way. This is in
accordance with international human rights law and human rights law in most modern democracies.
It accommodates the fact that the right to freedom of speech cannot be used to infringe the privacy
of a victim of a sexual offence, for instance. It also allows the right to gender equality to be limited
to, for instance, prohibiting male guards from searching female prisoners. Such limits on rights are
necessary to protect other rights. Sometimes rights may be limited to ensure effective government.
For instance, the right to access to information held by the state may be limited to protect matters
concerning state security and the right to freedom of association may be limited to prevent gatherings
that block access to hospitals.
A general limitation clause in the draft constitution allows limitations like this on rights in carefully
defined circumstances. However, the Committee is of the view that some rights should not be
limited under any circumstances whatsoever. There are, for instance, no circumstances in which
torture is justified. For this reason it included a non-derogation clause in the draft prohibiting any
limitation whatsoever on certain rights.
5.2.5. Electoral system
The draft constitutions each suggest slightly different systems for the election of members of the
National Assembly. All the drafts require measures to be taken to ensure the fair representation of
women and men, persons with disabilities, and minorities. As far as the electoral system itself is
concerned, the CKRC Draft proposes a “mixed member proportional system” in which 210 members are
34
elected from constituencies and another 90 drawn from lists provided by the parties so that, as far as
possible, the number of seats each party has in the Assembly is proportionate to the number of votes
it received. The Bomas Draft does not have a proportional component. It provides for the election of
MPs from constituencies (the number is to be determined by law), the election of a woman from
every district, and 14 representatives of marginalized groups elected through electoral colleges. Like
the CKRC Draft, the PNC proposes a mixed member proportional system although it varies the
details a little. In addition to MPs elected from constituencies, it provides for women elected from
“special constituencies”. An additional number of members are to be drawn from lists in proportion to
the votes received by parties. These lists are to be used to secure the fair representation of women
and minority groups.
Kenya has had a long history of struggles for fair representation of women, persons with disabilities
and youth in national decision-making institutions. Indeed, Kenya is the only member state of the
East African Community that has less than 30% percent representation of women in its parliament.
In fact Rwanda, a member state of the East African Community has the highest female to male ratio
of parliamentarians in the world. Whilst the principles of affirmative action and inclusion were
agreed in all three drafts and were one of the principles advanced by the people in the views
submitted to the CKRC, the means by which they could be secured in respect of elective office could
be achieved remained elusive. Exclusion on the basis of gender, disability and age are further
reinforced by the fact that people who face discrimination on these basis, like all other Kenyans may
also face exclusion on the basis of their ethnic and regional identities – i.e. multiple forms of
exclusion intersect to further marginalise people who may already belong to marginalised groups.
The patronage based individualistic historical characteristic of political parties in Kenya (which is in
part related to the country’s traditional electoral system that is an obligatory purely first past the post
one), has led to a situation whereby whilst political parties rely on votes from women and other
historically excluded and marginalised peoples, they are not trusted vehicles to ensure their
representation. Political parties are notorious for having reneged on their representation promises to
historically excluded and marginalised peoples. Women, persons with disabilities, youth and other
marginalised peoples were therefore unwilling to entrust the matter of their access to elective office
purely in the hands of political parties. Further it was felt that now that political parties would be
entitled to public funds, they must also be required to ensure the representation of all Kenyan
peoples (as all citizens pay taxes) in their diversity, at all levels including in their decision-making
organs.
Yet there is also a legacy of discrimination amongst marginalised groups, women for example
experience ethnic discrimination from other women, whilst women with disabilities and young
women experience sexism as well as the same forms of discrimination that males with disabilities and
young men do. People from smaller ethnic communities experience discrimination from those from
larger communities. Hence the mechanisms for inclusion also needed to ensure that these
intersecting forms of exclusion were addressed – so that for example not all women representatives
entering parliament through an affirmative measure are from one region. These are some of the
underpinning reasons why the MMPR approach of the CKRC was rejected at
Bomas. Further affirmative action is a temporary measure so not only should it equalise
opportunities for excluded and marginalised people, it is important that it also capacitates them to
compete in the future, hence the need for a mechanism that responds to the competitive nature of
Kenya’s electoral politics. The legacy of exclusion has fuelled violence witnessed in Kenya as is
observable in the fact that many of those who participated in the violence were angry young people
who do not perceive opportunity in the status quo. The new constitutional framework must
effectively address this legacy of exclusion in its diversity.
35
The Harmonised draft adopts the Bomas approach but divides the 14 representatives of marginalized
groups into two categories: seven must be persons with disabilities and seven representatives of other
marginalized groups, with respect to the National Assembly. At the level of the county assemblies
and Senate, party lists and other proportional representation mechanisms and electoral colleges are
employed to achieve the affirmative action measures. At all levels it should be noted that there is
nothing that bars all these actors from competing on a political party ticket or as independent
candidates, the emphasis is on flexibility that will enable equitable access to electoral office for all
Kenyans.
In arriving at its decisions the CoE held technical consultations on both the issues of the Electoral
System; and Inclusion and Affirmative Action; to which electoral experts including former members
of IREC as well as representatives of women’s rights, youth, persons with disabilities and other
minorities’ organisations were invited. The CoE had the opportunity of a brief consultation with the
IIEC and sent representatives to the IIEC Conference on Electoral Reform. The CoE has also been
represented at various fora of excluded and marginalised peoples including fora of the Minority
Rights Consortium, women’s organisations, youth and persons with disabilities. Finally the CoE’s
decision was also informed by international human rights instruments Kenya is bound by.
5.2.6. The Constitutional Court
Guided by the events and circumstances surrounding the 2007 general elections, the CoE sought to
establish a court that can address the underlying causes of the conflict and crisis, including having the
capacity to quickly determine presidential election disputes. This amongst other factors led to the
proposal for a constitutional court, principally because it is possible to put timelines on the
Constitutional Court as opposed to the High Court.
The new draft constitution creates an expanded Bill of Rights; it recognizes new rights which may
not be enforced by the High Court as currently constituted. In light of this the CoE created a
specialized court with the jurisdiction of interpreting the constitution and handling matters relating to
the Bill of Rights. It is imperative that such a court be staffed by judges who have experience in
human rights and constitutional law. Currently, this is not a requirement for appointment of a judge
to the High Court. The proposed Constitutional Court has a provision that requires that judges
appointed to it have a firm foundation in constitutional interpretation.
The draft Harmonised constitution proposes the following qualifications for appointment of a judge
into the Constitutional Court:
a) ten years experience as a judge of the Court of Appeal or a judge of the High Court; or
b) ten years experience as a distinguished academic or legal practitioner or in other relevant
legal field; or
c) Has held the qualifications specified in paragraphs (a) and (b) for a period amounting, in the
aggregate, to ten years.
The draft constitution also requires that the person be well versed in constitutional law and
constitutionalism. The judge should also have a strong commitment to human rights values and
practices.
There has been a lack of public confidence in the Judiciary, and as part of the effort to restore public
confidence the CoE thought it wise to establish two new courts that are untainted by this legacy: the
Supreme Court and the Constitutional Court. The Constitutional Court will deal only with
constitutional matters. Currently, there is a division of the High Court which acts as a Constitutional
Court. The current arrangement vests too much discretion in the Chief Justice in constituting the
36
bench. The second issue is that the jurisprudence developed does not bind the High Court. There is
need to establish a permanent court distinct from the High Court.
A question may be asked as to why not vest the jurisdiction for constitutional matters in the Supreme
Court. However, this approach would remove the opportunity for appeal as the decision of the
Supreme Court would be final. Experiences with the current Court of Appeal is that the court is
unduly shackled with technicalities. The CoE thought it wise to establish a court that is free of this
burden.
The Constitutional Court will be better placed to determine appeals from the decisions of the
Independent Electoral and Boundaries Commission. The CoE is required to complete its work
within a period of one year while the Interim Independent Boundaries Commission and the Interim
Independent Electoral Commission have two years and it would be improper for the CoE to
determine the boundaries. Thus, the CoE decided to go with the existing constituencies and the
counties and place on the Interim Independent Boundaries Commission the mandate of determining
the number and delimitation of the boundaries. Due to the political nature and sensitivity of the
exercise there is need for a special body to determine the disputes arising from the boundaries. The
Constitutional Court will be better placed to handle such matters. In the High Court as currently
constituted, a single judge can make a decision on boundaries.
The draft constitution creates devolved systems of government. It is a new system to implement and
is bound to raise many disputes between the national government, regions and the counties. Were it
to be left to the High Court to determine these matters, accusations of bias may arise because the
High Court will certainly fall within the different regions and/or the counties. A Constitutional Court
divorced from the regions and the counties will be an independent body and better arbiter.
5.3. Smaller editorial decisions
As has already been noted, large portions of the Bomas draft and the PNC are identical.
Nevertheless, as part of its task as an expert body, the Committee considered all these provisions
and, where necessary, revised them. This task was necessary because both the Bomas and PNC drafts
had been completed under considerable pressure of time. As a result, there were instances where
drafting was not as clear as it might be and where provisions were repeated or even contradicted one
another.
5.4. Issues where there is agreement in principle between the texts but about which
sectoral concerns arise
There are issues in the texts in respect of which there is agreement on principle and which are
consistent with the views of the people as expressed to the CKRC yet have been a source of sectoral
concern. In particular the issue of Kadhis’ Courts emerged as being of concern to the religious
sector. The CoE therefore considers it important to explain how this issue has been addressed in the
Harmonised Draft Constitution and why it is treated in the way that it is has been.
37
5.4.1. Kadhis’ Courts
This section focuses on Kadhis’ Courts and explains why the CoE did not identify the courts as
contentious. It also states and outlines the Committee’s position on the issue.
Reasons why the Kadhis’ Courts were not identified as contentious
As already pointed out, the Committee’s functions, roadmap and methodology are guided by the
Review Act (2008). The CoE arrived at the decision that Kadhis’ Courts are not contentious, based on
the obligatory statutory methodology in particular:
•
Views of Kenyans collected and collated by the CKRC: The Committee’s examination of the above
revealed that Kenyans had indeed sought to have the Kadhis’ Courts provided for in Kenya’s
new constitutional dispensation.6 There was no indication of the contrary on this particular issue
in the Commission’s final Report.
•
Proceedings at the National Constitutional Conference: As required by the Review Act (2008) the CoE
went through the records of the proceedings of the National Constitutional Conference
(Bomas). The delegates to the National Constitutional Conference voted in favour of the
retention of the provisions pertinent to the Kadhis’ Courts.
•
Provisions of the Draft Constitutions: The CoE’s consideration of the draft constitutions also revealed
that they all provided for Kadhis’ Courts though with certain differences. The CKRC Draft
provides for Kadhis’ Courts in its ninth chapter (Chapter 9). Several provisions witness to this.
They are sections 185 (3) (a), 192 (2), 199, 200, 201, 202, 203 (3), 204 (b) and (g). Article 11 of
the Eighth schedule which addresses transitional and consequential provisions also addresses
itself to Kadhis’ Courts. The Bomas Draft also provides for Kadhis’ Courts. This is in Chapter
Thirteen (13). The provisions are 184 (3) (a), 197 (2), 198, 199, 200 (e) and clause 13 of the
Seventh Schedule which also addresses Kadhis’ Courts. Finally the Proposed New Constitution of
Kenya (2005) provides for Kadhis’ Courts though in a different fashion compared to the drafts
mentioned above. The draft couches Kadhis’ Courts in section 195, referred to as Religious
Courts. As testified above, Kadhis’ Courts were therefore provided for in one way or another in
all three draft constitutions that the CoE was directed to consider.
•
Views from the Kenyan public on what they considered contentious: As earlier pointed out, the CoE invited
Kenyans to present their views through memoranda on what they considered contentious
(before determining what the contentious issues were). As a result, the Committee received over
12,000 memoranda from Kenyans. The analysis of these memoranda reflecting Kenyans’ views
did not reveal Kadhis’ Courts as contentious. Only a minority of those who sent their views
mentioned it as being contentious. Others who mentioned the issue supported its retention as it
currently is in the Constitution.
From the foregoing, the CoE could not statutorily identify Kadhis’ Courts as contentious. It however
noted its importance as a national socio-cultural issue that needed resolution amongst Kenyans.
6
The Final Report of the Constitution of Kenya Review Commission, p 210
38
The CoE’s position on the issue
Beyond identifying contentious and non-contentious issues, within the framework of the current
review process, the CoE is also mandated to provide recommendations on diverse issues concerning
the review process. On the issue of Kadhis’ Courts, the Committee proposes that the status quo be
maintained i.e. Kadhis’ Courts be entrenched in Kenya’s new constitution as they are in the current
Constitution.
In arriving at the above position, the CoE examined the following options:
(a) Remove the courts from the constitution
The option could not be considered primarily because of the above mentioned reasons. The
three draft constitutions provided for it, Kenyans asked for it to be provided for when they
presented their views to the CKRC and the minority representation of the views sent to the CoE;
these reasons could not lead towards removal. The Committee also considered the fact that
access to justice through Kadhis’ Courts was an accrued right entrenched in Kenya’s
Constitution hence legally cannot be extinguished. Kadhis’ Courts are also not prejudicial to
Kenya’s judicial and legal system and to individuals.
(b) Retain but enhance the structure of the courts as per the Bomas Draft
This option was also untenable because upon evaluation, the CoE was of the opinion that it
presented an almost parallel judicial system for Muslims and other Kenyans who professed other
faiths. Views presented to the Committee from Kenyans who spoke to the issue also suggested
that their discomfort was not with the entrenchment but proposed enhancement of the courts.
(c) Retain Kadhis’ Courts as religious courts as couched in the PNC Draft
This also could not stand because the proposal was rejected during the Referendum in
November 2005. Moreover an examination of views from Kenyans presented to the CKRC did
not reveal any call for religious courts. The CoE was also cognisant of the fact that Kadhis’
Courts were not religious courts as Kadhis are not religious leaders but judicial “officers” in the
Islamic faith, i.e. they cannot preach etc.
(d) Remove Kadhis’ Courts from the Constitution but propose to have them provided for in
legislation
Provision of Kadhis’ Courts in legislation without entrenchment in the constitution was also
considered. The CoE is however of the opinion that this position cannot hold. This is because of
various reasons. The entrenchment of Kadhis’ Courts in Kenya’s constitution has a history
(outlined below) and informs the totality of Kenya’s territory since independence. Secondly,
Muslims in Kenya comprise a minority. This minority is also evident in Parliament whereby such
legislation would stand vulnerable due to the ease with which legislation can be repealed. It is
therefore prudent to entrench the courts in the Constitution.
(e) Maintain the status quo
The Committee considered this option and decided to go by it mainly because of the following
reasons:
(i)
Kadhis’ Courts in the current Constitution
39
As mentioned above, Kadhis’ Courts are provided for in Kenya’s current Constitution and for over 40
years their existence has neither threatened nor in any way negatively affected persons who profess
other religions.
As seen below, Kadhis’ Courts if retained as proposed will only handle Muslim personal law and in
situations where all the parties are Muslims.
Section 66 of the Constitution of Kenya provides as follows:
(1) There shall be a Chief Kadhi and such number, not being less than three, of other Kadhis as may
be prescribed by Act of Parliament.
(2) A person shall not be qualified to be appointed to hold or act in the office of Kadhi unless (a) he professes the Muslim religion; and
(b) he possesses such knowledge of the Muslim law applicable to any sect or sects of Muslims as
qualifies him, in the opinion of the Judicial Service Commission, to hold a Kadhi’s court.
(3) Without prejudice to section 65 (1), there shall be such subordinate courts held by Kadhis as
Parliament may establish and each Kadhi’s court shall, subject to this Constitution, have such
jurisdiction and powers as may be conferred on it by any law.
(4) The Chief Kadhi and the other Kadhis, or the Chief Kadhi and such of the other Kadhis (not
being less than three in number) as may be prescribed by or under an Act of Parliament, shall each be
empowered to hold a Kadhi’s court having jurisdiction within the former Protectorate or within such
part of the former Protectorate as may be so prescribed:
Provided that no part of the former Protectorate shall be outside the jurisdiction of some Kadhi’s court.
(5) The jurisdiction of a Kadhi’s court shall extend to the determination of questions of Muslim law
relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties
profess the Muslim religion.
(ii)
The 10 mile Coastal Strip
The 10 mile Coastal Strip which represents the current Coast Province (as added till Voi as at
independence) was until independence a protectorate under the British via an agreement with the
Sultan of Zanzibar. In determining that the although the Kadhis’ Courts is a non-contentious issue
within the purview of the Review Act (2008), but is an issue of concern, the Committee took into
account, amongst other factors stipulated above, the special status of the Kadhis’ Courts as part of
the historical agreements underlying the constitutional settlement of Kenya. These agreements were
incorporated into the Constitution at independence and cannot as such be abrogated retrospectively by
removing the Kadhis’ Courts from the Harmonised Draft Constitution.
It is necessary to lay out the agreements in question in summary. On 14th June 1890 an agreement
was made on behalf of Her Majesty Queen Victoria with His Highness Sultan Seyyid Ali bin Said that
His Highness’ dominions should be placed under her Majesty’s protection. By a further agreement
made on behalf of Her Majesty Queen Victoria on 14th December 1895 with His Highness Sultan
Seyyid Hamed bin Thwain, it was agreed that His Highness’ possessions on the mainland of Africa
and the adjacent islands, exclusive of Zanzibar and Pemba should be administered by officers
40
appointed directly by Her Majesty’s Government and those territories would be administered as part
of Kenya under the name of the Kenya Protectorate.
An Order in Council of 1897 allowed application of Islamic law in the Coastal Strip, but Article 55 of
the 1897 Order in Council restricted Islamic law to civil matters of marriage, divorce, and succession
in the Colony of Kenya. This effectively provided the foundation for the jurisdiction of the Kadhis’
Courts in settling disputes among Muslims in matters of marriage, divorce, and succession.
At the same time, the Order in Council of 1897 provided for the application of common law in
Kenya. It stipulated that, in addition to statutes made by the colonial administration, the common
law of England, equity and statutes of general application would apply subject to the local conditions
and customs of the people.
In 1920, the mainland territory of Kenya became a colony and its inhabitants became “British subjects”.
By contrast the Coastal Strip, still on lease from the Sultan of Zanzibar, was renamed the
Protectorate of Kenya. This means that the Coastal Strip was a separate legal entity with protectorate
status and its residents were considered “British protected persons” rather than “British subjects”.
This status continued until independence. At the start of the Lancaster House constitutional talks in
1961, the status and fate of the Coastal Strip came up for determination. The difference in status
between mainland Kenya as a British colony, and the Coastal Strip as a British protectorate was
emphasized as the British Government organized separate talks for the delegates from the Kenya
colony, and from the protectorate of the Coast.
Sir James Robertson, formerly Governor- General of Nigeria, was mandated to recommend to the
British Government and to the Sultan of Zanzibar what changes should be made in the 1895
agreement that had been signed concerning the Coastal Strip. He recommended that despite the
different status of the Coast, it had been governed for a long time as part of Kenya and should
therefore be integrated into mainland Kenya. It was agreed that the Sultan would receive suitable
compensation and the following guarantees were to be enshrined in the Constitution:
•
•
•
A declaration of human rights including freedom of worship;
Safeguards for the retention of Kadhis’ Court; and,
Arrangement that future appointment of administrative officers from predominantly Muslim
areas be Muslims.
Consequently, on 8th of October 1963, the Government of the United Kingdom, His Highness the
Sultan of Zanzibar, the Government of Kenya and the Government of Zanzibar, signed an
agreement whereby the Sultan of Zanzibar relinquished his claim of Sovereignty over the Coast of
Kenya. As part of the independence agreement, Prime Minister Jomo Kenyatta and the Prime
Minister of Zanzibar, Mr Shamte, on behalf of the Sultan of Zanzibar, exchanged letters stipulating
the terms of integrating the Coastal Strip to Kenya. Then Prime Minister Mzee Kenyatta made
written undertakings in the letters of exchange that contained the agreement.
With respect to the Kadhis’ Courts, the undertaking was that:
The jurisdiction of the Chief Kadhi and of all the other Kadhis will at all times be preserved and will extend
to the determination of questions of Muslim law relating to personal status (for example marriage, divorce
and inheritance) in proceedings in which all parties profess the Muslim religion.
41
On the basis of this and other guarantees, the Sultan agreed to waive all his authority over the Coastal
Strip. By virtue of the independence agreement between the British Government, the Kenyan
Government and the Sultan of Zanzibar, the Kadhis’ Courts were entrenched in the Independence
Constitution. It is this constitutional settlement that would be abrogated by removing the Kadhis’
Courts from the Harmonised Draft Constitution. The obvious danger would be that the Coast, along
with a sea belt of exclusive economic zone of 200 miles currently enjoyed by the country in terms of
resources and access to the sea, including underwater cables supplying internet communication,
would disintegrate from Kenya as the terms on which the Coast was integrated would have been
breached. In other words, provision for the existence of the Kadhis’ Courts in the Constitution is part
of the constitutional and territorial foundation of Kenya as well as the basis for the protection of the
diversity of Muslims and their belonging within Kenya. All this should be preserved for the peace,
stability, integrity, and economic good of the country.
Legitimate expectation in law entitles individuals to continue to enjoy existing forms of protection
and not to diminish them. The protection accorded to Muslims by the Kadhis’ Courts under the
Independence Constitution lies in providing a mechanism for settling disputes that are uniquely
resolved on the basis of their personal law and faith. Within this system, Muslim women are
beneficiaries of a regulated dispute settlement system in matters of marriage, divorce and succession,
which impact on women greatly. Removing the Kadhis’ Courts will disadvantage Muslim women in
particular and the Muslim Community in general because they will be without a dispute settlement
mechanism. Leaving aside the Kadhis’ Courts, the existing judicial system operates on the basis of
the Judeo-Christian philosophy and principles that were introduced by the 1897 Order in Council,
which extended application to Kenya of the common law of England, equity and statutes of general
application. Kenya’s constitutional and legal framework therefore contains an inherent unstated
Judeo-Christian bias.
(iii)
Objects and Principles of the Review Process
The Committee is also guided by section 4 of the Review Act (2008) which provides for the objects
and purposes of the current process and in particular the following paragraphs that provide that the
new constitution be one:
(a)guaranteeing peace, national unity and integrity of the Republic of Kenya in order to safeguard the wellbeing of the people of Kenya…
(e) respecting ethnic and regional diversity and communal rights including the right of
communities to organise and participate in cultural activities and the expression of
their identities…
(h) strengthening national integration and unity; …and
(k) committing Kenyans to peaceful resolution of national issues through dialogue and
consensus
Further, section 6 of the Review Act (2008) provides the CoE with principles guiding it its functions.
Specifically, the following principles are of importance in addressing this issue:
...(c)ensure that the review process accommodates the diversity of the people of Kenya
including socio-economic status, race, ethnicity, gender, religious faith, age,
occupation, learning, persons with disabilities and the disadvantaged;
(d) ensure that the review process – (iv) is guided by the respect for the principles of
42
human rights, equality, affirmative action, gender equity, and democracy; and
(e) ensure that the outcome of the review process faithfully reflects the wishes of the
people of Kenya.
The nature and jurisdiction of the Kadhis’ Courts as established under the Constitution has to be
understood clearly. Section 179 (1) required the appointment of a Chief Kadhi and no less than three
Kadhis. The Judicial Service Commission appoints a person to hold or act in the office of Kadhi
who professes the Muslim religion and possess knowledge of Muslim law applicable to any sector or
sects of Muslims. It is true that Section 179 (4) provided that the Chief Kadhi and the other Kadhis
appointed shall each preside over a Kadhis’ Courts having jurisdiction within the former Protectorate
and that no part of the former Protectorate shall be outside the jurisdiction of some court of a
Kadhi. However over time, the Muslim population has grown and the jurisdiction or location of the
Kadhis’ Courts court could not be confined to the original Coastal Strip.
Under Section 179 (5) the jurisdiction of the Kadhis’ Courts is limited to the determination of
questions of Muslim Law relating to personal status, marriage, divorce or inheritance in proceedings
in which all the parties profess the Muslim religion Muslim. It is worthy noticing and emphasizing
that the Kadhis’ Courts have no jurisdiction over Christians and have never affected or interfered
with the Christian way of life. Nor do they detract from the concept of a secular State.
Guided by the objects and purposes provided in the Constitution of Kenya Review Act (2008), particularly
those pertaining to peace, the promotion of human rights and the national integrity of Kenya, as well
as the obligation that national interest prevail over sectoral interest, CoE recommends the continued
entrenchment of the Kadhis’ Courts in the Harmonised Draft Constitution as couched in the current
Constitution of Kenya.
5.4.2. Land
Again, whilst the issue of access to and control over land has historically been one of concern in
Kenya and a source of tension especially given that the country is a former settler colony, the CoE
did not find the land chapter as contentious within the context of the review. Firstly it should be
noted that the Land Chapter, remains virtually the same in all three drafts and in doing so remains
consistent with views expressed to the CKRC by the people. Whilst members of the public
expressed concerns about land in their memoranda, these concerns did not fall outside of what had
been recommended and provided for in the land chapter. Given that this chapter is therefore agreed
in the three drafts, it cannot be declared as contentious. Furthermore the land chapter, is consistent
with emerging policy on land which seeks to address longstanding grievances. As such this was a
heavily negotiated chapter at the National Constitutional Conference. The Bill of Rights in the
Harmonised Draft Constitution seeks to protect rights to own property and reinforces, the Land
Chapter. Historical injustices in relation to land emanating from colonial occupation and how it was
addressed in the post-colonial period coupled with corruption in relation to illegal acquisition of land
has resulted in contesting claims and inequitable access to and ownership of land being a source of
tension underpinning all the Agenda Four concerns. The Land Chapter has to be read within the
context of the rest of the provisions of the Harmonised Draft Constitution in particular those
pertaining to the Bill of Rights, but to repeat those provisions within the Land Chapter, as some had
sought would undermine them as it suggests that they only apply to some sections of the constitution
as opposed to being governing principles that bind the state and citizens.
43
CHAPTER 6: AREAS OF CONTENTION
Section 23 (b) of the Review Act (2008), provides for the CoE to “identify the issues which are contentious
or not agreed upon in the draft constitutions.” Whilst section 23(f) requires that the CoE “articulate the merits
and demerits of proposed options for resolving the contentious issues.” As noted in Chapter 5 of this report, the
merits and demerits are to be contained in “a report” (section 30) and this report and a “Harmonised
draft Constitution” are to be published for a period of thirty days (section 32). After having studied
the draft constitutions, and other materials outlined in the Methodology Chapter such as the Kiplagat
Report, the “Naivasha Accord”, Waki and Kriegler Reports as well as the memoranda received from the
public on what they considered to be contentious in response to the CoE’s March and April 2009
adverts, the CoE identified three areas of contention:
•
•
•
System of Government (the nature of the Executive and Legislature);
Devolution; and
Transitional Clauses (or Bringing the New Constitution into Effect)
It is important to note that these three issues cover four chapters: the Executive, Legislature,
Devolution and Transitional Chapters and are intertwined.
It is not the entire chapters that are contentious but aspects of them as will be noted below; for
example in the Executive Chapter, there is agreement on the need for an accountable executive; the
same can be said vis a vis the legislature, whilst there is agreement that Kenya should have devolved
government. The difference is in the levels of devolution. These chapters vary in all three drafts,
furthermore virtually all memoranda stated one or all three of these issues as being contentious. The
issues are also intertwined in the sense that the fact that the three drafts provide for differences in the
nature of the Executive for example, has implications for the type of Legislature envisioned which in
turn is related to the different perspectives on devolution envisioned in the three drafts. This chapter
therefore articulates how it is that the CoE has proposed addressing these contentions in the
Harmonised Draft Constitution.
6.1. System of Government: The Executive
As examined by the Committee, the constitutional systems of government that are used in most
countries around the world are Parliamentary, Presidential, and Hybrid. The key differences among
the three systems are the extent to which powers of government are separated functionally between
branches of Government. In a Presidential system, political and administrative powers are divided
between the executive, legislative and judicial branches. In a Parliamentary system, Parliament is
sovereign and executive authority is exercised from the legislature. In a hybrid system, executive
power is shared between a separately elected president and prime minister.
Various models of these systems were considered for the purpose of inspiring informed discussions
and debate on resolving the contentious issue of the system of government to be adopted under the
Constitution of Kenya. Key elements, advantages and disadvantages, of Parliamentary systems, the
Presidential system, and Hybrid systems were outlined in general. A synthesis of these systems is
provided to indicate possible ways forward with respect to the issue of the system of government in
the context of constitution making in Kenya.
Important issues arose in the course of examining the systems of government in the context of
constitution making in Kenya. What are the experiences and formulations that can be discerned from
44
these systems? There are pertinent issues that stand problematic in the way of constitution making in
Kenya, namely:
•
•
•
•
Consultations undertaken by the Committee so far show that the country is
polarised between choosing either a Presidential or a Parliamentary system of
government. What system of government would redress this?
Kenyans are united in their wish to elect their president directly, and yet are also
collectively united in their wish to have limited presidential powers against an
imperial presidency. Is this a factor of the measure of executive authority or overall
representation of the people?
Kenyans are united in expressing their wish that there should be a Prime Minister
who commands the majority of seats in Parliament. What should be the distribution
of power between the President and the Prime Minister?
Given the context of the political history and constitutional experience of the
country, should state functions be combined with government functions, or should
state functions be separated from government functions?
6.1.1. Parliamentary Systems
a) Western European in origin and spread at independence to ‘Anglophone’ Africa, Australia,
Canada, India, Indonesia, Malaysia, New Zealand, Singapore, etc.
b) Designed against a backdrop of despotism and absolutism. Underlying ideas: constitution as
a social contract; limited government, fundamental freedoms, separation of powers between
organs of government-executive, legislature, and judiciary, checks and balances between the
organs of government.
c) Executive authority exercised by Prime Ministers and Cabinet collectively on behalf of
Monarchs or Presidents, i.e., separation of functions of Head of State from Head of
Government.
d) In the Westminster model (UK), cabinet drawn from within Parliament. I
e) In Continental European systems, cabinet drawn mainly from outside Parliament, e.g., France,
Germany etc.
f)
Elections held directly on “first past the post” basis in Westminster model in UK, and on basis
proportional representation, or mixed member proportional representation in Continental
European models.
45
Advantages
• Promotes efficient government by enabling the Prime Minister and Cabinet to concentrate
on affairs of government
• Authority to govern derives from Parliament, based on parliamentary majority or coalitions
• Regular accountability of Prime Minister and Cabinet to Parliament
• Can be removed on the basis of a vote of no confidence motion
• Strengthens political parties
• Political party in power can check Prime Minister by removing them as party leader
Disadvantages
• Can be prone to crisis if there is no absolute majority in Parliament
• Requires strong political parties that are internally democratic
• Party leaders/Prime Ministers or individuals can dominate political parties
• No limitation of tenure in office in most systems
6.1.2. Presidential System
•
The quintessential Presidential system is characterised by:
•
The United States of America and adopted by Mozambique in Africa.
•
Designed as an improvement of the Parliamentary system in the special circumstances
surrounding the aftermath of the American civil war.
•
Combines Head of State and Head of Government functions
•
Executive power vested in an all powerful president with a Vice President, and special
advisors.
•
Limitation of tenure of office.
•
Separation of powers between the Executive, Legislature, and Judiciary
•
Secretaries of States appointed from outside Parliament
•
Houses of Parliament, i.e., Congress-the Senate and House of Representatives ratify
Presidential appointees
•
Impeachment from office
46
Advantages
• Single focal point of executive authority
• Accountability of the Presidency
• Accountability of individual members of the Executive
• Strong institutional checks and balances
Disadvantages
• Winner takes all
• State and Government functions dominated by President
• Complex system of checks and balances
• In the absence of such institutions, ‘imperial presidency’ likely
• Once elected, President cannot be removed, except by impeachment
• Requires strong institutions to do this and to check the President and individual members of the
executive
• Political parties do not play a visible role
• President may run government while the ‘opposition’ controls Senate or House of
Representatives
• Deadlocks between executive and legislature
6.1.3. Hybrid Systems
Hybrid systems of government combine elements of Presidential and Parliamentary systems of
government, e.g., France, Finland, Poland, Hungary, Kenya, Tanzania, Uganda, and ‘francophone
Africa’. Many African states in the Commonwealth turned to these systems (Presidential Hybrids in
particular) after abandoning Parliamentary systems.
Three trends are evident here and should be cast in context:
First, between the mid 1960’s and late 1970’s, many states in Africa adopted Presidential hybrids,
with a President, Vice President, and Cabinet drawn from Parliament. The separations of powers and
checks that go with Presidential and Parliamentary models were discarded. The Presidency emerged
as a dominant figure with absolute powers of appointment and dismissal unchecked, leading to
political patronage. The ‘imperial’ Presidency emerged.
Second, from the late 1970’s to the late 1980’s, Presidential Hybrids metamorphisised into one party
systems of government, leading to self-perpetuating regimes countered for the most part by military
or attempted military coups. The imperial Presidency was consolidated under these regimes and
became omnipotent.
Third, the end of the cold war in the early 1990’s led to the collapse of the One Party State model
and a process of political transition and constitutional reform from One Party State system of
Government to constitutional democracy set in, and still going on. The Presidential/Parliamentary
hybrid emerged, with a President, Vice President, Prime Minister, and cabinet, thus effectively
accommodating a Parliamentary system within a Presidential system in which the Prime Minister
assumed responsibility for variously supervising or coordinating affairs of Government, e.g.,
Tanzania, Uganda, and now Kenya.7
7
Some One Party States, e.g., Zambia did have a Prime Minister.
47
With this background in mind, most hybrid systems have the following constitutional features:
• Executive power is shared between an elected president and prime minister
• Distribution of executive authority between the President, the Prime Minister and Cabinet
• President stays above fray of party politics
• Exercise of executive authority in appointments and decision making
• Appointment and removal of the Prime Minister and Cabinet
• Appointments ratified by Parliament
Advantages
• Offers constitutional compromise where ethnic and political divides are sharp and polarising
• Winner does not always take all
• Separation of State from Government functions
• Qualified power of appointment, which checks cronyism, political patronage, ethnic hegemony,
etc.
Disadvantages
• Tendency to import elements of Presidential and Parliamentary systems while negating the
checks and balances in those systems
• Potential for deadlocks
6.1.4. Synthesis
All constitutional systems carry inherent strengths, advantages, disadvantages, and weaknesses. These
are important to take into account in making informed choices about the adoption of a system of
government for Kenya. No system is perfect. Ultimately the choice of a constitutional system
depends on a deliberate judgment on what is suitable for unity, peace and political stability, social and
economic progress in the country, and its overall development and modernisation.
In light of the issues posed earlier, the choice to be made is one that would promote and strengthen
these virtues and the aspirations of the people of Kenya as a whole, rather than polarise the
population and divide the country at large. The determining factor is that the people of Kenya are
divided between those who support a Presidential or Parliamentary system. Thus neither the
Parliamentary nor the Presidential system of government in its purest form would provide an ideal
framework of a system of government for now or for the foreseeable future.
It is the stated view of the Kenyan people that they wish to elect their President directly. It would
thus seem to be appropriate to adopt a constitution under which there is a President elected directly
by the people of Kenya. Details of how the President would be elected would depend on the
electoral system that will be designed under the new constitution. This issue is dealt with elsewhere in
the work of the Committee.
The wish of Kenyans to elect their President directly is however tempered by their equally
compelling wish that presidential executive authority be limited. In other words, Kenyans have made
a stand against an ‘imperial president’ and identified unlimited presidential powers as a major source
of the country’s political crisis. Addressing this issue may entail limited presidential authority under a
new constitution, while carrying unifying and representative functions in relation to the people of
Kenya.
48
It is also an importantly stated view of the Kenyan people that they wish to have a Prime Minister
whose political party has the majority of seats in Parliament, or who leads a coalition of political
parties with a majority of seats in Parliament. This view reflects the desire that Parliament should be a
strong and self-regulating institution. Bearing this in mind, it is plausible that the new constitution
would make provision for the office of the Prime Minister.
Having regard to the stated views of the Kenyan people in relation to the offices of the President and
the Prime Minister under a new constitution, it would seem that neither a Parliamentary system nor a
Presidential system would comport with the will of Kenyan people. If this is the case, then it appears
inevitable that a hybrid system of government would be appropriate to consider. In the course of its
work, the Committee has examined a variety of hybrid models that were outlined before, the Law
Society of Kenya, the meeting of political parties, and the Reference Group. These included various
models of Presidential and Parliamentary hybrids that do not have to be replicated here.
From the point of view of the analysis made by the Committee, it is not the type of hybrid that
should be the determining factor in choosing a hybrid system of government under a new
constitution. What matters is the institution of checks and balances that were conveniently discarded
from these systems when hybrids were adopted by most African states. Hybrids became unpopular
for doing away with the principle of limited government based on checks and balances.
From the Presidential system, hybrids in Africa omitted, the limitation on the presidential tenure of
office until the early to mid-1990’s, election of Vice President as a running mate, the qualified
presidential power of appointment based on the advise and consent of Parliament thereby weakening
Parliament, and impeachment of individual members of cabinet.
From the Parliamentary system, hybrids in Africa omitted a vote of no confidence in government,
significance of political strength based on majority representation in Parliament, and parliamentary
“question time” on the part of the head of government.
In the current constitution making exercise, it may be useful to consider a hybrid that incorporates
the check and balance elements above- that is simply a hybrid in which executive authority may lie
collectively in the executive arm of government, but in which specific functions are assigned
constitutionally to the President, the Deputy President, the Prime Minister, Deputy Prime Ministers,
and Ministers comprising the cabinet.
In the case of a pure Presidential system, the President would be Head of State and Government but
acts on the advice and consent of Parliament as a vital check. In the case of a pure parliamentary
system, the Prime Minister would be Head of Government but acts on the advice of cabinet and
Parliament, since the political base lies in Parliament. In a hybrid therefore, the President would be
Head of State and exercise functions of the State but would act on the advice of the Prime Minister
in respect of specified functions. The Prime Minister would be Head of Government and exercise
functions related to Government on the advice of cabinet and Parliament, and is accountable to
Parliament.
Qualified powers to make appointments to public offices are critical to checking and balancing
appointments in order to prevent political patronage, cronyism, and ethnic hegemony. A general
power of appointment to state positions may lie with the President in a hybrid, but such power
would of necessity be qualified in respect of appointment to specific positions. The President may
appoint a person as Prime Minister, whose political party or coalition of parties holds a majority of
seats in Parliament. Where applicable, the Prime Minister would recommend names of possible
appointees to the President, e.g., members of the cabinet. The Prime Minister may act on the advice
49
of cabinet and Parliament. Parliament would exercise oversight by ratifying certain key appointments
to official positions.
A certain proportion of cabinet ministers would be drawn from Parliament while another, possessing
special qualifications and skills, would be appointed from outside Parliament and approved by it.
6.1.5. Recommendations
The Committee recommends that:
a) There should be a State President as Head of State who would be in overall charge of
the State, represent the State and the people, hold the instruments of state power, and
exercise state related functions that ensure the smooth running of the state.
b) There should be a Prime Minister who is Head of Government and part of a collective
cabinet. The Prime Minister would concentrate on running government efficiently and
professionally.
c) There be a separation of state functions from government functions on a specified basis,
while coordinating their exercise as a necessary and important characteristic of modern
constitutional systems.
Functions, authority, and powers are separated within the executive as a check and balance, in
addition to the checks and balances that exist between the executive, the legislature, and the judiciary
as the three organs of government.
6.2. System of Government: The Legislature
In the context of the proposed system of government, the nature of the legislature to be established
is a continuing thread of contention since Bomas. Contentious issues pertain to the structure of the
legislature, i.e., whether there should be a bicameral Parliament with a second house, the name and
role of such a house, and what its powers should be in relation to the National Assembly and the
Executive.
While the original CKRC and Bomas drafts sought to establish a bicameral Parliament, the Wako Draft
differed markedly in seeking to establish a unicameral Parliament. The provision for a second
chamber in the CKRC and Bomas drafts was consistent with the views of the people as represented
to CKRC.8 Since a unicameral Parliament is already in existence, the quest for a new constitutional
order demands that consideration should be given to the issue of a bicameral Parliament, the name of
the second house within it, and the extent of its powers relative to the National Assembly and the
Executive. This is contextualized in the experience of major constitutional systems in which
bicameral Parliaments exist.
These experiences, particularly in the older Commonwealth (Australia, Canada, India, and New
Zealand) and the United States of America, show that a second house in a bicameral Parliament is
usually known as the Senate. For unique historical reasons in the United Kingdom, the second House
is known as the House of Lords. In the newer countries of the Commonwealth, the second house is
referred to by new nomenclatures, such as the National Council of Provinces in South Africa, and
See, The Final Report of the Constitution of Kenya Review Commission (10th February 2005) at page191 where it reads:
“The people told the Commission…that there is need for a second chamber, although views differed on its role and composition…”
8
50
the National Council in Namibia. The choice of designation of the second house obviously depends
on usage and the historical circumstances of each country. Overall the term “Senate” has acquired
international usage over time and indeed had a place in Kenya’s constitutional history until the Senate
was abolished in 1968. It would thus be appropriate and justified under the Harmonised Draft
Constitution to refer to a second house of Parliament as “the Senate”.
As to the existence of the Senate or its necessity, broader constitutional experience shows that the
Senate has an important and specific constitutional role that cannot be satisfied by national
representation in the National Assembly alone. It serves as a house of special representation, review,
and check on the government of the day. In terms of representation, the Senate represents special
interests, such as those of Federal States, devolved units of government, and special interest groups
at the national level. Wherever it exists, the composition of Senate is usually designed to reflect the
representation of these broader types of interests and to enable citizens to engage in national affairs.
Multi-cultural and multi-ethnic democracies such as those of the United States and India tend to have
a second house to address the principle of inclusivity. In Kenya, the principal role of the Senate
would be to represent the interests of the devolved system of government, as is the case with the
National Council of Provinces in South Africa, and the National Council in Namibia.
As a house of review, the Senate in most countries reviews bills originating from the National
Assembly, other than money or appropriation bills, in terms of their effect or impact on the interests
of Federal States, devolved units of government, and special interest groups- such as marginalized
groups, minorities, women, youth, persons with disabilities, etc. In order to represent and protect
special interests, the Senate may also initiate its own bills.
The Senate protects the system of devolved government in a number of ways: (i) It gives Senators,
who are representatives of the county governments, a say in the passage of national Acts. This is
important because the devolved governments will be required to implement many of these Acts. (ii)
It is required to approve any attempt by the national government to suspend a devolved government.
In so doing it protects the integrity of devolved governments by ensuring that a devolved
government is suspended only when that is absolutely necessary.
As a standing check on the potential tyranny of a National Assembly, many constitutional systems
carry the requirement that government bills must be approved by both houses to ensure that such
initiatives must carry the support of a broader range of interests than those represented by the
majority in the National Assembly. In addition, the Senate has a role in providing oversight of the
government and other state bodies. For instance, in Presidential and hybrid systems of government,
the Senate also has power to impeach a president on stated grounds.
Despite such roles appearing to be concurrent, the Houses of Parliament normally work in harmony.
Constitutional experience, notably in Australia, and the United States, points to the possibility of
deadlocks occurring occasionally between the National Assembly and the Senate, and the Executive.
The fact such deadlocks occur is not a reason to avoid a second house of Parliament. Its role in
enhancing representative democracy and as a check and balance within a constitutional system
outweighs the fear of deadlocks.
This is because various constitutional techniques have been developed to deal with such deadlocks. A
joint sitting of the Houses of Parliament may be called by the President to resolve a deadlock
between both Houses, as in the United States. An ordinary bill which originates in the National
Assembly may be passed without Senate approval if it is passed in two consecutive sessions by the
National Assembly with an interval of at least a year between. This is the case with regard to the
House of Commons and the House of Lords in the United Kingdom whereby the House of
Commons uses a suspensive veto as its last word.
51
In countries such as Austria, Belgium, and Poland, the National Assembly specifies a timeline within
which the bill must be considered by the other house in order to avoid deadlocks. If the equivalent of
the Senate fails to reach a decision on passing a bill within the stipulated time line, then the bill is
deemed to have been passed. The shuttle technique allows a bill to shuttle between both Houses so
that amendments by either house are negotiated. The number of times that a bill must shuttle may be
specified, e.g., three times in France. Some constitutional systems, e.g., Japan, require a second
chamber to overrule amendments made by the other chamber by a 2/3 majority. These techniques
are not exhaustive; rather they indicate how constitutional systems unlock deadlocks, and could be
used under a new constitution that establishes a bicameral house.
6.2.1. Recommendations
The Committee recommends that:
a) There be established in the new constitution a second house to be known as the Senate;
b) The Senate will be a house of representation for devolved government, marginalized groups,
minorities, women, youth, and persons with disabilities; and,
c) Members of the Senate be elected on the basis of an electoral college at county level as well
as regional representation.
6.3. Devolution of Power
6.3.1. The objects of review and the mandate of the Committee
The Harmonised Draft must be reflective of the objects of the review of the Constitution and, the
guiding principles, as stated in the Constitution of Kenya Review Act (2008). Of particular relevance to
Devolution are the need:
(i)
(ii)
(iii)
(iv)
to promote the peoples’ participation in the governance of the country
through democratic, free and fair elections and the devolution and exercise of power;
to ensure the provision of basic needs of all Kenyans through the establishment of an
equitable framework for economic growth and equitable access to national resources; and
to respect diversities, inclusive of ethnic and regional diversity and community rights
including the right of communities to organize and participate in cultural activities and
the expression of their identities.
to ensure that the national interest prevails over regional or sectoral interests.
In accordance with its mandate, the Committee identified the following issues as agreed upon and
therefore not contentious. The issues agreed are:-
•
•
A new Constitution for Kenya should not provide for a system whereby powers of government
are concentrated in a National Government;
Powers of government must be shared between a National Government and government(s) at
the local level (devolution of powers).
The issues identified as not agreed and therefore contentious are:52
•
•
•
Whether there should be two or more levels of government;
What should the powers of each level of government be?
How much power to supervise devolved governments and ensure equity across the country
should be vested in the National government?
6.3.2. What system do the people want?
The people’s quest for democratic governance under a system in which powers are dispersed to
organs of government at the centre and, to other levels of governments at the local level, has been
consistent. The historical context of this demand is the unilateral abolition of a system of devolved
government provided by the independence constitution followed by the concentration of powers in
the Executives of post-independence governments.
The demand for dispersed and devolved powers of government was addressed by the Constitution of
Kenya Review Commission (CKRC) which interacted widely with the people and collected and
collated their views. The views were translated into Chapter Ten of the CKRC Draft constitution
which provided for a devolved system through a National Government and four other levels of
governments at, the Region, the District, the Location and the Village.
The people’s delegates at the National Constitutional Conference (Bomas) debated the CKRC Draft.
Their consensus was drafted in Chapter Fourteen of the Bomas Draft which provided for
governments at the national and three other levels namely:(a)
the Regional;
(b)
the District; and
(c)
the Locational.
A variety of proposals emerged from the post-Bomas initiatives aimed at finding fresh consensus
after the review process had failed to move to finality. The PNC or, the Wako Draft as it is popularly
known, was the ultimate of these initiatives. Chapter Fourteen of the draft provided for two levels of
government, the national, and the district. After the rejection of the Wako Draft at the Referendum,
the issues have remained in contention.
6.3.3. Resolving the Contentious issues - the levels of government
After studying the reference materials as per section 29 of the Review Act (2008), the reports and
drafts of the various post-Bomas initiatives, and having also considered the proposal from the
thematic consultations plus the views from the public, the Committee finds that the preponderance
of views focus on the two level, and the three level systems.
The two level system comprising of a National, and one government at the local level, has evoked
diverse proposals as to the shape and powers of the government at the local level. A substantial
minority supporting this system have argued for large geographical units comparable to the
regions/provinces existing at independence. Most dominant is a proposal for a unit, collapsed from
the current administrative and representation structures of the district, the county/local council and
the constituency; a unit which is viable demographically and resource wise, for effective governance
without endangering service delivery.
The proponents for the three level system prefer one basic level of government at the local level,
supplemented by another level (regional government) to accommodate diversities and to provide a
basis for representation of local interests at the national level.
53
In addition to objectives of the review and the guiding principles, determining levels of governments
and delineating their boundaries should take into account the following other factors:
(i) the functions, a system of devolved government is intended to serve;
(ii) the history of local government; and
(iii) the cost of administration.
6.3.4. The Functions
Devolution serves both political and administrative functions. The political function is selfgovernance through democratic and accountable institutions at the local level, capable of providing
checks and balances to the exercise of power at the National level. This implies a division of powers
and resources that give the devolved governments capacity to govern. The administrative function
promotes development and the delivery of services plus equity in resource allocation. It follows that,
determining levels and delineating units, of government plus assignment of functions should be such
that, administration at all levels is effective. Relevant considerations are:
-
geographical features of the area in relation to the services to be delivered;
means of communication or accessibility for effective governance;
density of population;
resources, including human and physical infrastructure;
social feasibility in terms of accommodating into the administrative unit
communities with historical and cultural ties while taking into account minority
interests and;
the views of the people.
6.3.5. The History
The history of local government need not be recounted in detail. In summary, it is the
transformation of a semi-federal system which provided for the sharing of power between regional
governments and the central government, to a centralized system. In the current debates, some
people recall this system with nostalgia. They contrast it to the concentrated powers of postindependence governments controlled by the dominant communities. For others, federalism as was
conceived for Kenya, emphasized differences thereby hindering national cohesion. The guiding
principle that, the national interest prevails over regional or sectoral interests, is the lesson of history.
6.3.6. The Cost of Administration
An assessment of the cost of administration should be part of the process of determining levels of
governments and delineating boundaries of administrative units. However, cost must not override
democratic participation and service delivery. Nevertheless, even without fiscal extrapolations, it is
obvious that the more the levels of government, the greater the cost of administration. The cost
must be borne by the people of Kenya. The cost element is therefore a relevant consideration.
54
6.3.7. Proposals for the Harmonised Draft Constitution
Levels, Powers and Functions of Governments
It may be noted that the review of the constitution is preceding the demarcation of administrative
boundaries for which, a Boundaries Commission has been established. Such a Commission, guided
by principles similar to those outlined in section 3.0, is best suited for this task. However, the task
must be undertaken in the context of the constitution. Therefore, provisions for levels, powers, and
functions of governments, cannot await the delineation of boundaries.
The Harmonised Draft has adopted the three level system in accordance with which governments are
at the following levels:
(i) The National
(ii) The County
(iii) The Regional
The National Government
The National Government consists of the three organs of government being the Legislature, the
Executive and the Judiciary plus institutions in support of democracy. The Legislature and the
Executive are directly elected by the people of Kenya. The National Government shall exercise all
the powers not specifically reserved for the other levels of government.
The Basic Level of Government/ County Government
Devolution of powers shall be to one basic, the county and at the regional level of government as
proposed below. Various proposals as to the shape the basic unit should, take were received and
have been considered. These include:
-
adopting the districts as currently constituted;
making the constituency both a representative and an administrative unit;
converting the Bomas regions into the basic levels of government;
clustering several constituencies; and
clustering several of the current districts.
The districts as currently constituted have not been considered to be viable units of devolved
governments because:
(a) The increase is largely a response to demands for administrative units in which the
people have a sense of belonging. It has not taken account of the factors outlined above
(b) With over (250) districts translating into devolved governments, there would be a costly
replication of organs and institutions of government.
(c) Litigation has cast doubt about the legality of the process through which the districts
were constituted.
Because of (b) above, constituencies are also not viable. The objection to the Bomas regions is the
possibility of compromising service delivery that could arise from geographical expanse and
population spread in many of the regions agreed to at Bomas. The Bomas districts on the other hand
are a viable starting point. They are the result of careful deliberations and political compromises,
55
which balanced the communities’ sense of belonging with the needs of service delivery. The cost of
supporting 79 units of government is not comparable to that involving over 250 units.
Because the Bomas districts were a result of compromise rather than a systematic delineation in
accordance with the relevant principles, if adopted, their boundaries would have to be reviewed and
streamlined in accordance with the guidelines outlined above. Certainty and efficiency of
government would be endangered by frequent reviews. Therefore, the Harmonised Draft does not
provide for a permanent Boundaries Commission. A Committee, or, a Commission for this purpose,
can be constituted when the need to review boundaries arises.
It is proposed that this basic level be referred to as the county. Government at this level shall consist
of a directly elected county assembly with legislative authority, and an Executive Committee elected
by the county assembly from amongst the members of the assembly.
The Regional Government
Among the reasons for adopting the region as a level of government are the following:
-
Regions are proposed to be large units geographically and population wise. They will
accommodate ethnic and cultural diversities, in a process of nation building.
It is important to have a level of government to coordinate the functions of the county
governments and to plan for services that cut across county boundaries.
For equitable allocation of resources and the protection of the interests of devolved
governments, there should be a linkage to the National Governments. The regional level is
the basis for a productive linkage.
Regional governments will therefore have legislative and executive functions at the regional level and,
a representative role at the national level. Regional assemblies and executives shall be elected by
county assemblies within the region. Their principal function is to coordinate the implementation of
programs and projects that extend across two or more counties within the region. This will imply:-
formulation of policies for harmonious implementation of the programs and projects, and
monitoring implementation.
The representative role shall be performed through the Senate, whose members will be elected from
the county assemblies to represent regions.
.
The Committee has, after due deliberations, decided not to adopt the Bomas regions for purposes of
the proposed regional level of government. The decision was taken mindful of the fact that those
regions were carefully deliberated by people’s delegates at the NCC. However, the Committee is
looking at larger and fewer units better posed to provide checks and balances to the exercise of power
at the national level. The Harmonised Draft has adopted the original eight provinces-as the basis of
the regional level of government.
Functions and Resources
Devolved governments shall exercise the powers, and perform the functions assigned by the
constitution. It is expected that these should target areas of development and delivery of services
better carried out with the participation of the people, or services better provided closer to the
people. In the assignment of powers and functions, both the Bomas and Wako Drafts do not differ.
The list of functions as laid out in the Fourth Schedule of the Bomas Draft has been adopted by the
Harmonised Draft.
56
Devolved governments must be financed through a combination of local taxes and allocation of
revenue from the National Government. The Bomas Draft and PNC proposed lists of local taxes are
identical. The lists as outlined in the Fifth Schedule of the Bomas Draft have been adopted by the
Harmonised Draft.
It is evident from the lists, that the revenue generated from local taxes will be inadequate. Moreover,
counties are not equally endowed with resources from which revenue can be generated. Hence, the
provisions for equitable disbursal of revenue, including, equalization grants aimed at addressing
inequalities. These appear in all the three drafts have been Harmonised. Issues of fairness or equity
in allocation of resources amongst the levels of government will be addressed by a Commission on
Revenue Allocation on which the devolved governments are represented.
In the time available to the Committee, it was not possible to commission an expert study of the
whole aspect of financing devolved governments. It appears that fixing revenue jurisdictions through
a list of taxes may not be the best way out. Indeed, the lists may lead to grossly differing tax burdens
for Kenyans depending on where they reside or carry on business. It is recommended that the
financing of devolved governments be subjected to a study by experts with a view of coming out
with a common tax regime for the whole country and system of collection by the devolved
governments.
A supervisory role for the National Government
All governments should be subject to the same standards in terms of performance and integrity. The
relationship amongst the levels of government will be, as all the three drafts provide, one of cooperation. It is envisaged that Parliament, through its legislative and deliberative role, will ensure
equity in the country. This in addition to the roles of other institutions such as the Commission on
Revenue Allocation. In extreme cases (emergency or war) where a county or regional government
fails to function, the National government may intervene by suspending the county or the regional
government. Otherwise, the Committee does not see a direct supervisory role for the National
government.
Decentralization to levels below the County
It would be expensive to provide for levels of government below the county. However, county
governments may find it necessary or convenient to set up structures below whether at the Location
or the Village for purposes of service delivery. In order to facilitate this, the Harmonised Draft has
adopted the principle stated in Article 201 of the Wako Draft to the effect that delivery of services
shall be decentralized to the extent that it is efficient to do so.
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6.4. The Transition
The transitional provisions in the Transition Chapter of the Harmonised Draft carry provisions for
an orderly transition from the current system.
Bringing the Constitution into Effect: Transitional Issues
6.4.1. Introduction
When a new constitution is introduced, a range of provisions is needed to ensure that the move from
the old order to the new order is smooth, and, in particular, that the changes expected by the new
constitution are implemented effectively and that institutions that are retained under the new
constitution continue to function properly. The “transitional” provisions that do this are usually not
included in the body of the constitution because they have a temporary lifespan. Instead they are
included in a schedule which is part of the constitution but, because it is appended at the end of the
constitution, its provisions will not interfere with the ‘permanent’ provisions of the constitution in
the future.
Most of the provisions dealing with transitional matters are very technical – they ensure that existing
laws continue to have force, that the public service continues to operate and that public servants
continue to receive their pay, that courts continue to operate, etc.
However, there are some transitional provisions that have significant policy implications. In
identifying contentious issues the Committee accordingly stated:
With respect to bringing the new constitution into effect, there is consensus that:
a) A new Constitution should create a fresh start for Kenya establishing the rule of law, protection of
human rights, and respect for everyone irrespective of their gender, ethnicity, disability, age, religion,
culture or political persuasion.
b) The institutions and office bearers in the new Constitution must have the confidence of the people and be
accountable to them.
c) All government action and every exercise of power should be based on the new Constitution.
The issues which are contentious or not agreed upon are:
i.
How should the adoption and coming into force of the new Constitution affect holders of political
constitutional positions or offices, such as the President, Vice-President, Prime Minister, Deputy Prime
Ministers, Cabinet, and Members of Parliament? Should these office holders complete their terms?
ii.
How should the adoption and coming into force of the new Constitution affect holders of unelected
constitutional positions or offices, such as the Auditor-General, the Attorney-General, and Judges?
iii.
A new Constitution will require many new laws. What measures can be put in place to ensure that
Parliament will pass these laws?
This paper discusses each of these issues under the following headings: (i) implementing a new
system of government; (ii) the judiciary; (iii) commissioners and other appointed constitutional office
holders; and (iv) adopting new laws. In addition, implementing a new system of devolved
government will be a considerable task. This is also discussed.
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6.4.2. A preliminary matter: Oaths and the register of interests
Like the three drafts that preceded it, the Harmonised draft Constitution requires public
representatives, constitutional office holders and other senior public officials to swear an oath to
uphold the constitution and also, for certain categories of state office holder, to submit a statement
of interests for inclusion in a register of interests. The reason for requiring these office holders to
take a new oath is to mark the new beginning that the constitution represents and to highlight the
fact that all these office holders are committed to adhering to the set of values that the new
constitution represents. The requirement that all these office holders submit a statement of interests
is a first step in implementing the new constitution’s commitment to honest and accountable
government. The statement of interests ensures that citizens are aware of the private interests of
public representatives and holders of constitutional offices and can check that these people do not
further their private interests in their decision making.
This approach follows that in the Bomas Draft (Sixth Schedule items 10 and 13) and Wako Draft (Sixth
Schedule item 7(6)). we propose that, whatever approach is taken to the continuation of their offices
once the new constitution comes into force, all the office holders discussed below (MPs, members of
the executive, judges etc) should be required to submit a statement of interests and, to mark the
fresh start that the new constitution is intended to represent, renew their oaths.
6.4.3. Implementing a new system of government
The question here is “what should happen to existing elected representatives and the current power sharing
arrangements when the new constitution comes into force?”
Under Article 47A(7) of the current Constitution of Kenya, a new constitution will come into effect no
more than 14 days after the referendum results are declared but the new constitution itself may
suspend the operation of any of its provisions.
The Kenya National Accord and Reconciliation Act adds to this by stating that it ceases to apply on
enactment of a new constitution. This means that the power sharing arrangements secured in the
Accord Act will cease to apply unless the new constitution explicitly protects them.
There are two options:
(i)
To have all the provisions in the new constitution come into effect immediately.
This would involve the abolition of the current power sharing arrangements and the
best way of doing this would probably be to hold a new election immediately.
(ii)
To delay implementation of the provisions of the new constitution that relate to the
Executive and the Legislature until the next elections (2012).
The Committee of Experts received submissions supporting each of these options. There are
obvious attractions in the first option: Kenyans have waited a long time for a new constitution and
one of the key demands of Kenyans is for executive arrangements under which power is better
controlled through good checks and balances. Accordingly the implementation of new arrangements
for the exercise of executive power may seem urgent. But, this approach is also likely to be more
disruptive and to raise opposition to the new constitution. On this approach (i) MPs with a legitimate
expectation that they are in office until 2012 would have to fight an election earlier than expected; (ii)
the carefully balanced power-sharing arrangements captured in the Accord would be set aside; and
(iii) either new election law would have to be rushed through or elections would have to be fought
under the old system.
59
The Committee of Experts decided that, on balance, it would be in the interests of political stability
to suspend the operation of those provisions of the new constitution that concern the executive and
legislature until the current incumbents have completed their terms, and to extend the operation of
the Accord until the next scheduled elections. This follows the approach in both the Bomas and Wako
Drafts (Bomas Seventh Schedule item 3; Wako Sixth Schedule item 3)
6.4.4. The Judiciary
Submissions to the Committee on the Judiciary were virtually unanimous on one point: the Judiciary
must be reformed. The Committee received a number of submissions on how this should be done.
These submissions can be classified into two groups: those that propose that the entire Judiciary
should be reappointed (with all judicial officers or at least all judges being treated as having lost their
jobs but permitted to reapply); and those that propose a more gentle approach - that judicial officers
remain in office but are required to take a new oath etc and to undergo a ‘vetting’ process.
The first question that the Committee of Experts had to consider in relation to the justice system was
whether all judicial officers should be treated in the same way. Although equality of treatment is
superficially attractive, the Committee decided that it is not practical and that judges and other
judicial officers should be treated differently. This is because there are significant differences between
judges and other judicial officers. The first difference is in their numbers. The judiciary is relatively
small. This means that the reappointment or vetting of judges under a strict timetable imposed by the
constitution is possible. The magistracy, on the other hand, is large. Reappointment or vetting would
be a long and complicated process with severe implications for the operation of the subordinate
courts unless it is handled very carefully. The second difference relates to the independence of the
Judiciary. Although judicial independence is not expressly provided for in the Harmonised Draft
Constitution, it is implied in a number of provisions. These provisions give judges stronger
protection than judicial officers serving in subordinate courts. For instance, magistrates can be
removed from office by the Judicial Service Commission while a special procedure involving
Parliament is required for the removal of a judge of the superior courts. Generally the initiation of a
procedure to remove a judge should be a rare occurrence. Thus, it seems appropriate to consider the
appropriate procedure in relation to judges and other judicial officers separately and to ensure that all
questions about judges are dealt with at the beginning of the life of the new constitution.
Below we discuss the way the Harmonised draft deals with judges and magistrates respectively.
6.4.4.1 Judges
Informed by submissions, the weight of opinion at a technical consultation on the issue, the concerns
of many of those directly involved in the justice system and its own understanding of the issue, the
Committee of Experts decided that to retain the status quo and simply allow members of the
judiciary to continue in office was not appropriate. In addition, on careful consideration of the
options suggested in submissions, the Committee of Experts decided that wholesale reappointment
of the judiciary was not appropriate. Instead, the Committee decided that some form of vetting of
the current judges should take place as was done in Bosnia-Herzegovina, East Germany, the Czech
Republic and elsewhere in Eastern Europe and as proposed by the CKRC and Bomas Drafts. This
approach is also similar to that proposed by the August 2009 report of the Task Force on Judicial
Reforms.
60
There have been calls for the total renewal of the judiciary. On this approach, all judges would lose
office when the constitution comes into effect but, to ensure that the court system continues
working, they would continue working in an acting (or ‘interim’) capacity. A process would then be
followed which allowed judges to reapply for positions on the bench. (Those that chose not to
reapply would be provided with suitable retirement benefits once they had completed all outstanding
work.) The process of reappointing judges would be done by the Judicial Service Commission at the
same time as filling new positions in the judiciary. However, this approach would be disruptive,
causing a sense of insecurity amongst judges.
The alternative of vetting achieves the same goal as renewal: judges with problematic records would
not be able to remain on the bench. However, a process of vetting would be less disruptive than a
process requiring all judges to be reappointed.
On the ‘vetting’ approach adopted in the Harmonised draft, every judge will be given an opportunity
to resign (with appropriate benefits). Those that remain in office will be ‘vetted’ by an independent
commission (the Interim Judicial Service Commission). The main aim of the process will be to
ensure that any serious complaints against sitting judges are properly considered. If, on an initial
review of the record of a judge, including any complaints against him or her, the Commission finds
that further investigation is warranted, the matter will be referred to the process established in the
constitution for investigating complaints against judges. The Constitution guides the process to be
followed by the Commission but the Commission will establish its own procedure and develop
criteria for the process.
Once ‘cleared’ in the vetting process, the judge will continue in office and will be free to be
considered for more senior judicial positions.
6.4.4.2. Magistrates
As noted above, the Committee of Experts does not think that the approach provided for judges
should be applied to magistrates and other subordinate court judicial officers. The approach the CoE
has taken is that the newly composed Judicial Service Commission should have the authority to
investigate complaints against them (whether the complaint arose before or after the new
constitution comes into effect) but that no special process should be adopted to vet every magistrate.
This approach also reflects the fact that decisions of the subordinate courts are reviewable by higher
courts and so these judicial officers are subject to control by judges of the superior courts.
Nonetheless the CoE recognises that most of the public’s experiences of the justice system are at this
level and has therefore provided for the newly appointed JSC to recommend as to how concerns
about efficiency and corruption can be addressed at the magistrates’ level.
6.4.5. Commissioners and other appointed constitutional office holders
The new constitution includes a range of commissions and constitutional office holders. Some of
these are included in the existing constitution (e.g. the Attorney-General); others already exist but are
established by an Act of Parliament and not included in the Constitution (e.g. the Kenya National
Commission on Human Rights); yet others are new (e.g. the National Land Commission).
Arrangements concerning the new positions are relatively simple. The new constitution can set a time
period within which they must be established. Arrangements concerning existing positions are more
complicated. The constitution will have to include provisions concerning what happens to people
serving in existing bodies and when these bodies start operating under the new constitution.
61
6.4.5.1. A fresh start
The CKRC (Eighth Schedule item 8(1)) and Bomas (Sixth Schedule item 7(1)) approach to existing
institutions is a fresh start: they would allow people holding office under the current constitution to
continue in office on an interim basis until an appointment is made under the constitution. (These
drafts do not appear to deal with people who currently hold office under a law and whose position
will in future be governed by the new constitution (such as the Human Rights Commission).)
6.4.5.2. Retention of status quo
The Wako/PNC Draft (Sixth Schedule item 7(1)) retains existing office holders: they are to continue
in office as if appointed under the new constitution. The Wako Draft does not specify what happens
when the new constitution imposes a term limit on such offices such as is proposed for the
Attorney-General. Is the term to start running from the date the constitution takes effect or is
should the term served be assessed from the actual date on which the person assumed office?
6.4.5.3. Assessing offices individually
It may be difficult to deal with all constitutional offices in a similar way: the situation of an office
currently established by statute is, in many ways different from those currently established under the
constitution. And, the situation in relation to offices whose incumbents currently serve a limited term
is different from those offices whose current incumbents have no term limit. This suggests yet
another approach: treating offices differently according to their specific circumstances now.
6.4.5.4. Assessment
Many people have suggested treating all offices alike. At first glance this sounds fair but a closer
examination of the issue shows that (i) in fact there are very few constitutional offices that need
transitional arrangements and (ii) very different conditions apply to each affected office (e.g. the
Attorney-General and the office of the Controller of Budget and Auditor-General are to be split in
different ways; the Gender Commission currently has a very specific brief etc). This suggests that
serious consideration should be given to individual treatment of those offices.
6.4.6. Adopting new laws
The challenge here is to ensure that the new laws envisaged by the new constitution are promptly
enacted. Not only do all the drafts propose many new laws but many of the laws that are proposed
would be complex pieces of legislation.
Each of the existing drafts includes a table which identifies the Acts needed and specifies the time
within which they must be adopted. The Bomas and Wako Drafts take the matter a step further. Under
Bomas Article 308, if Parliament fails to adopt a particular law within the time stipulated in the table,
anyone may petition the High Court for a declaratory order instructing Parliament to enact the law
within a specified period. If this is not done, Parliament is dissolved. The Wako Draft (Article 287)
offers a less radical solution. It requires such bills to be prepared by the Attorney-General and the
Commission on Implementation of the Constitution see. Below and tabled in Parliament. If such a
62
bill is not passed in time, first, the Wako Draft gives Parliament the option of extending the time
once. If this does not work, the bill prepared by the A-G and Commission becomes law.
Initial reactions to the Wako Draft are usually negative: allowing a bill to take effect without it actually
having been passed by Parliament seems undemocratic and to allow a member of the executive
undue power. However, the Wako approach has real strengths. First, while the extreme measure of
dissolution of Parliament in the Bomas Draft may put the necessary pressure on MPs, in the event of
the law not being passed it may also lead to a flouting of the constitution. It puts enormous pressure
on the new constitutional order. Second, under the Wako Draft, the Bill tabled in Parliament will have
been agreed to by an independent commission. Thirdly, the Attorney-General under the new
constitution will be serving in an independent office and not be an appointee of the executive.
Finally, the Bill concerned will have been tabled in Parliament. MPs will have had the opportunity to
take it up if they have fundamental objections.
Another approach might be to attach different consequences to different provisions. For instance, in
some cases the transitional Schedule could include “default” provisions which will come into effect if
the relevant law is not adopted. This is more easily done in relation to rights than other issues.
Dissolution of Parliament may be retained in relation to devolution and other laws that affect the
structure of the state in a fundamental way, and the Wako approach could apply to other cases.
Recommendation
The CoE will be using an approach that is a combination of both the Bomas and Wako approach, in
which the lack of implementation of laws pertaining to certain provisions will attract the possibility
of dissolution of Parliament. However dissolution will not happen immediately, from the PNC, the
option of extending the deadline for enactment for a year only has been taken. During that year the
Attorney General would partner with the Commission on the Implementation of the Constitution to
ensure the necessary legislation. Should that not happen, Parliament would stand dissolved.
6.4.7. Establishing Devolved Governments
Implementing a system of devolved government and, in particular, establishing new legislative and
executive bodies that can respond to the needs of people and deliver services effectively is always a
huge challenge. All three drafts, the CKRC, Bomas and Wako Drafts, envisage a special commission to
oversee the implementation of the constitution. (CKRC Article 292; Bomas Article 299; Wako Sixth
Schedule item 13). Clearly, monitoring the implementation of the system of devolved government
would be a major component of the work of such a commission. A critical part of this work will be
to ensure that devolved governments are not given tasks before they have the capacity to implement
them – this will set them up for failure. On the other hand, it is well-known that no national
government is eager to give up powers, so a system needs to be crafted to ensure that the national
government cannot delay devolving power on the basis of claims of incapacity of the devolved
governments.
63
CHAPTER 7: FROM THE HARMONISED DRAFT CONSTITUTION TO THE
REFERENDUM
Step 1: Upon the publication of the Harmonised Draft Constitution and the preliminary report, the
public will have 30 days within which to give their views. The Committee of Experts will have
another 21 days within which it is required to incorporate the views of the public. (Section 32 (1))
Step 2: The Committee of Experts shall present the Harmonised Draft Constitution to the
Parliamentary Select Committee (PSC) for deliberation and consensus building on the contentious
issues within 21 days (Section 33(1(c))
Step 3: The PSC will reach an agreement on the draft and have the Committee review it and
resubmit it to the Parliamentary Select Committee. The PSC shall within 21 days resubmit the draft
constitution and the report presented to it together with the recommendations agreed upon as a
result of its deliberations and the Committee of Experts shall revise the draft taking into account the
achieved consensus. The Committee of Experts shall submit the revised draft and its final report to
the Parliamentary Select Committee within 21 days and thereafter the Parliamentary Select
Committee shall within 7 days table the report and draft before the National Assembly.
Step 4: The National Assembly approves the draft within 30 days of the tabling of the draft
constitution by the Parliamentary Select Committee, upon approval; it shall be forwarded to the
Attorney General for publication.
The National Assembly may propose amendments to the draft constitution and submit it to the
Committee of Experts for consultation and redrafting. Where the National Assembly proposes
amendments to the draft constitution, it shall submit the draft constitution to the Attorney General
who shall within 7 days submit the draft to the Committee of Experts for consultation and
redrafting. (Section 33(4)).
If the National Assembly fails to approve the draft constitution, a joint meeting between the
Parliamentary Select Committee, The Reference Group and the Committee of Experts shall be
convened by the Chairman of the Committee of Experts to consider the issues and to make
recommendations to the National Assembly. The National Assembly thereafter shall within 21 days
approve the draft constitution and submit it to the Attorney General for publication.
Step 5: The Attorney General publishes the Draft Constitution within 30 days of receipt from the
National Assembly. The Attorney General shall not effect any alterations to the draft except for
editorial purposes in consultation with the Parliamentary Select Committee. (Section 34)
Step 6: The Interim Independent Electoral Commission shall within 7 days of the publication of the
draft constitution publish the question to be determined by the referendum. The question shall be
framed in consultation with the Parliamentary Select Committee and the Interim Independent
Electoral Commission shall organize, conduct and supervise the referendum.
Step 7: The Committee conducts Civic Education for a period of 30 days (Section 35) and the
referendum will take place on the expiry of the thirty days.
64
Step 8: The Interim Independent Electoral Commission will publish the results of the referendum
within 2 days of the holding of the referendum. (Section 43)
Step 9: If the final result of the referendum is that the people of Kenya have ratified the draft
constitution the president shall proclaim the new constitution to be law not later than 14 days after
the publication of the final result of the referendum. (Section 43A)
65
CHAPTER 8: ANNEXES
ANNEX 1: SUB-COMMITTEES OF THE COE
In order to ease its work, the CoE has constituted itself into the following sub-committees
•
The sub-committee on Research: This is convened by Otiende Amollo and has four other members
(Chaloka Beyani, Atsango Chesoni, Christina Murray and Frederick Ssempebwa. The CoE’s
Deputy Director for Research, Michael Chelogoy also sits on this sub-committee). The subcommittee on Research not only oversees the substantive area of research, but also to keeps an
eye on what instructs the final report of the committee.
•
The Sub-Committee on Drafting: This is convened by Fredrick Ssempebwa and has five other
members (Otiende Amollo, Chaloka Beyani, Bobby Mkangi, Christina Murray and Njoki
Ndung’u). This sub-committee is tasked with following recommendations on various aspects,
noting that the drafting will be a continuous process. The sub-committee is responsible for the
overall structure of the Harmonised draft which instructs the Harmonised Draft Constitution to
be presented.
•
The Sub-Committee on Civic Education: This sub-committee is convened by Bobby Mkangi and has
three other members (Abdirashid Abdullahi, Chaloka Beyani and Njoki Ndung’u. The Deputy
Directors for Civic Education, Public Information and Mobilisation, Veronica Nduva and Vitalis
Musebe also sit on this sub-committee). This sub-committee not only focuses on the continuing
mandate of Civic Education throughout the process, but will also lead and guide the Committee
of Experts during the 30 day period of civic education contemplated by the Act.
•
The Sub-Committee on Finance and Administration: is convened by the Chairperson, Nzamba Kitonga
and has three other members (Abdirashid Abdullahi, Ekuru Aukot (the Director) and Atsango
Chesoni (Vice Chairperson), the Deputy Director, Finance and Administration, Peter Ayugi also
sits on this sub-committee). This sub-committee’s mandate includes oversight of administrative
matters and fundraising and ultimately will generally guide the final hand over phase
contemplated by section 60 of the Act.
The Committee of Experts contemplates a final draft report and a final draft constitution which are
well considered and approved in great detail, not only in light of the discussions and basic documents
outlined in the Act, but also considering any further views received from the public, interest groups
and political parties.
66
ANNEX 2 STUDY GROUPS
Table 1: Study Groups Formed By CoE to Identify Areas of Agreement and Contention
between the three Drafts
CLUSTER
A
AREAS OF STUDY
Bill of Rights, Land & Environment
B
Structure of Government, Legislature and
Executive
C
Elections
Constitutional commissions
Judiciary and Leadership
Multi- Level government (including public
finance and second chamber)
Devolution
Sovereignty and other introductory
provisions
Public service (including relevant finance
provisions)
National Security
Concluding provisions (Constitutional
change, transitional provisions)
D
E
MEMBERS
Amollo Otiende
Bobby Mkangi
Nzamba Kitonga
Atsango Chesoni
Dr. Chaloka Beyani
Abdirashid Abdullahi
Njoki Ndung’u
Prof. Ssempebwa
Dr. Ekuru Aukot
Prof. Christina Murray
Hon. Amos Wako
67
ANNEX 3: CONSULTATIONS OF THE COE
Table 1: Thematic, Technical Consultations on Contentious and Other Issues
The CoE held five thematic technical consultations on contentious and other issues as shown in
Table 1 below:
ISSUE
DATE
VENUE
Devolution
Systems of Government (Executive
& Legislature)
Inclusiveness & Affirmative Action
Electoral Systems
Transitional Clauses
25th June, 2009
29th June, 2009
Hotel Intercontinental
Hotel Intercontinental
NO.
OF
PARTICIPANTS
46
39
30th June, 2009
30th June, 2009
1st July, 2009
Hotel Intercontinental
Hotel Intercontinental
Hotel Intercontinental
45
31
45
Table 2: Consultations with Various Sectors/Interest Groups
SECTOR
DATE
VENUE
The Private Sector
Political Parties
Political Parties
Religious Groups
Civil Society Organizations
15th July, 2009
15th July, 2009
2nd - 3rd September,
2009
16th July 2009
16th July 2009
Hilton Hotel
K.I.C.C
Leisure Lodge, Mombasa
NO.
OF
PARTICIPANTS
42
50
126
K.I.C.C
K.I.C.C
214
170
68
ANNEX 4: EVENTS THAT THE COE HAS ATTENDED AND HELD PANEL
DISCUSSIONS AT
The CoE received and continues to receive numerous requests to participate in various fora on
Agenda Four reform and in particular the constitutional review process. Some of the events that the
CoE has made presentations at and/or constituted panels in are:
•
The IDEA/Inter-peace Conference on Constitution-Building: The CoE was represented in
an international conference on constitution building, implementation and public participation in
Cape Town, South Africa. During this conference, the challenges to constitution making in
Kenya were discussed by distinguished scholars on constitution-building drawn from all over the
globe. The CoE is applying some of the lessons from other jurisdictions to the Kenyan process.
•
The Law Society of Kenya’s Annual Conference: The CoE constituted a panel on the
constitutional review process and spoke to over 300 lawyers/Advocates during the 2009 Law
Society of Kenya’s (LSK) Annual Conference. This was an important opportunity to consult the
lawyers on what their views on the contentious issues are, and also to solicit their support.
•
The African Network of Constitutional Lawyers: The CoE sent a panel to this important
conference in which the Kenyan constitution-making process was highly discussed with
academics, constitutional law experts and members of the CoE gathered very useful tips on
constitution-making processes.
69
ANNEX 5: FORA THAT THE COE HAVE PARTICIPATED IN AND/OR
ADDRESSED
The CoE has participated in several fora organised by and at the invitation of various stakeholders
directly and through the media as detailed below:
April
• Participated in an interactive session of Agenda Kenya on KBC on the 29th of April, 2009
May
Participated in a roundtable meeting on Governance and Security in Kenya hosted by the
Institute for Security Studies on the 5th of May, 2009
• Participated in the Louis Otieno Show, sponsored by Transparency International on the 14th
May, 2009
• Took part in an episode of Moving the Masses on KBC at the invitation of the National AntiCorruption Steering Committee on the 17th of May, 2009
• CoE participated in “Roles of NGO’s in Constitutional Reform and Electoral System Reforms”
organized by ICJ- Kenya & Nairobi NGO’s Network Forum on 19th May, 2009 at, AACC House
Waiyaki Way, Nairobi
• CoE participated in “The 6th Annual Leadership Seminar for School Prefects at Consolata Shrine
Hall Westlands, Organized by Zawadi Counselling Services International, on 22nd May, 2009,
Nairobi
• CoE participated in the Kenyan Section of the International Commission of Jurists (ICJ-Kenya),
Consultative Forum on the Reform Agenda on 28th – 30th May, 2009 at Sportsman’s Arms Hotel,
Nanyuki
•
June
• CoE participated in the International Conference for Political Parties: Partnership Days,
Organized by the Centre for Multiparty Democracy – Kenya (CMD –K) on 10th – 13th June,
2009 at Safari Park Hotel, Nairobi
• CoE participated in the Netherlands Multiparty Democracy (NIMD) Partnership Days 2009, on
10th – 13th June, Nairobi
• CoE participated in the Public Forum in Mombasa on the Constitutional Review Process
Organized by Kenya Community Support Centre on 18th June, 2009 at Mombasa Women’s Hall
• CoE participated in the Youth Town Hall Meeting on the Constitution Review, Organized by
National Youth Convention and facilitated by URAIA on 20th June, 2009 at Lenana Conference
Centre on Jacaranda Avenue, Nairobi
• CoE participated in the Louis Otieno Live Show on Citizen TV, 25th June, 2009
August
• CoE participated in and addressed the NCCK’s Extra Ordinary Programmes: Address on salient
issues relating to the Constitution of Kenya review process on 5th August, 2009 at Jumuia
Conference and Country Home, Limuru
• CoE attended addressed a meeting of the Minority Rights Consortium on Constitutional Reform
on the 7th of August, 2009
• CoE participated in the National Conference on Electoral Reforms – 12th – 14th August, 2009, at
K.I.C.C
70
•
•
•
CoE participated in the 13th Institute of Certified Public Secretaries of Kenya (ICPSK) Annual
Conference - August 12th – 14th, 2009 at Mombasa Continental Resort
Address to the members of the Kenya Civil Servants at the Public Servants Club, Kisumu on the
14th of August 2009
CoE participated in and addressed ‘A breakfast meeting for women commissioners’ (from all the Agenda
4 bodies and the Kenya National Commission on Human Rights) hosted by the Federation of
Women Lawyers Kenya (Fida-Kenya) on behalf of the G10 on 31st August 2009.
October
CoE attended the Land Sector Non State Actors’ breakfast meeting on “Land Reforms in
Kenya” on 7th October, 2009
• Address to ActionAid Kenya’s meeting of training of trainers at Jumuia Place Limuru, October
2009
•
Other Events not dated:
• Participated in the Accord Program, KBC TV
• Foundation for Women’s Rights in Kenya meeting at Pan Afric Hotel a Presentation on the review
Act, 2008
• Gender Forum at Pan Afric Hotel on the role of Women in the Review process
• Gender Forum organised by Heinrich Boll Foundation at Nairobi Club
• The ICJ-Religious groups meeting at Naivasha
• North Rift Academic Forum debates on Agenda no. 4: the Constitution making process
71
ANNEX 6: PUBLIC AWARENESS AND MEDIA EVENTS CONDUCTED BY
THE COE
Date
Event
Number of Participants
Venue
18/06/09
Editors Guild breakfast meeting
& announced the contentious
issues
80
Intercontinental
Hotel
17/07/09
Media Owners Association
(MoA) breakfast meeting
54
Nairobi Serena
17/07/0918/07/09
Senior journalists retreat
85
Outspan
Nyeri
08/08/09
Community Media Training
78
The Stanley- Nairobi
15/08/09
Community Media Training
90
Serena
Mombasa
22/08/09
Community Media Training
72
Merica hotel Nakuru
29/08/09
Community Media Training
88
Kisumu
Kisumu
Hotel-
03/09/09
CoE Press Conference
47
Delta
Westlands
House
18/09/09
CoE Press Conference
31
Great Rift Valley
Lodge- Naivasha
September
The Nairobi International Trade 6581
Fair,
ASK Show Grounds,
Nairobi
October
The Kenya Correspondents 120
Association (KCA)
Sportsman’s
Arms
Hotel, Nanyuki
November
Kitale Agricultural Show
Kitale
Show
Grounds, Kitale
-
Hotel-
Beach
72
Summary of Electronic Media Coverage
The CoE has used both the radio and TVs talk shows and even sponsored various debates in the
electronic media with a view to consolidating public support for the completion of the review
process.
Radio Station
Secured
Dates
Programme
Time
Broadcast
Language
CoE
Members &
Staff
1- Citizen
Radio
14th July
Tuesday
Mjadala wa
Jambo
7am - 8
am
Kiswahili
Bobby
Mkangi
2- Inooro
FM
21st July
Tuesday
Hagaria
7 am - 8
am
Kikuyu
Peter Kahara
(Consultant)
One hour
3- Mulembe
FM
16th July
Thursday
Bhuka Bushele
7 am - 8
am
Luhya
Vitalis
Musebe
One Hour
4- Musyi
FM
15th July
Wednesday
Wamuka Ata
8 am - 9
am
Kamba
Veronica
Nduva
One hour
5- Frontier
FM
6- Capital
FM
17th July
Friday
14th July
Tuesday
Breakfast Show
8am –
9am
4pm-5pm
Somali
One hour
7- Kass FM
13th July
Monday
Leene Emet
7am – 9
am
Kalenjin
Abdirashid
Abdullahi
Njoki
Ndungu
Abdirashid
Abdullahi
Dr. Chelogoy
TV STATION
The Jam
English
BROADCAST
LANGUAGE
English
Transmission
Time
One hour
One Hour
One Hour
DATES
PROGRAMME
TIME
CoE Members
1- KBC
TV
2- NTV
24th June
Wednesday
2nd July
Thursday
Good Morning Kenya
7am - 8 am
On the Record
9pm –
9:45pm
English
3- KTN
TV
26th June
Friday
KTN Leo
7 am - 8 am
Kiswahili
4- KBC
TV
1st July
Wednesday
Damka
6:30am 7:15am
Kiswahili
Bobby Mkangi
5- CITIZ
EN TV
6- CITIZ
EN TV
24th June
Power Breakfast
English
Dr. Ekuru Aukot
25th June
Thursday
Louis Otieno Show
7:00am –
9:00am
9:30pm –
10:15pm
English
Otiende Amollo
Atsango Chesoni
Nzamba Kitonga,
Atsango Chesoni
and Otiende Amollo
Bobby Mkangi
73
Agenda Kenya Programme on KBC
Topic
Executive
Day
Sunday
Date
23/07/2009
Legislature
Thursday
23/07/2009
Devolution
Friday
24/07/2009
Electoral Systems
& Affirmative
Action
Time
Guests
8:00 pm – 9:00pm Nzamba Kitonga
& Dr. Chaloka
Beyani
7:30pm- 8:30pm
Atsango Chesoni
& Bobby Mkangi
8:00pm – 9:00pm Otiende Amollo
&
Abdirashid
Abdullahi
Christina Murray
& Njoki Ndungu
Adverts for Provincial Hearings
The Committee of Experts in its effort to engage Kenyans on the issues that have been identified as
contentious in the review process broadcast adverts about the public forums that were being held in
specific towns that the CoE visited in July.
Item Description
Broadcast Channel
Broadcast
Frequency
Language
Central
Radio Adverts
Inooro Fm,
9 Spots
Kikuyu
Nyanza –
Ramogi Radio
Luo
9 Spots
Luhya
9 Spots
Kalenjin
9 Spots
Kiswahili
9 Spots
Somali
9 Spots
Western
Mulembe
Rift Valley
Chamge,
Coast – Radio
Baraka FM
North EasternStar FM
74
Eastern
Musyi FM
Kamba
9 Spots
Muuga FM (Meru)
Meru
9 Spots
Radio Citizen
Kiswahili
8 Spots
KBC Idahaa.
Kiswahili
7 Spots
KBC TV
English /
Kiswahili
9 Spots
CITIZEN
English /
Kiswahili
9 Spots
National
Television Adverts
75