Constitution of Kenya

Kenya

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The 2010 Constitution of Kenya was drawn up to replace the 1963 independence constitution. The constitution was presented to the Attorney General of Kenya on April 7, 2010, officially published on May 6, 2010, and was subjected to a referendum on August 4, 2010.^[1] The new Constitution was approved by 67% of Kenyan voters.^[2] The constitution was promulgated on 27 August 2010.^[3]

Constitutional Reforms in Kenya have been a major issue since Kenya gained independence. There were repeated attempts to amend the Constitution of Kenya (1963), intensifying in the late 1990s and early 2000s, but only finally reaching success following the outbreak of post-election violence in early 2008, and the intervention of the African Union through a mediation team headed by Kofi Annan.

Drafting process for the 2010 Constitution

The Constitution of Kenya was the final document resulting from the revision of the Harmonized draft constitution of Kenya written by the Committee of Experts initially released to the public on November 17, 2009 so that the public could debate the document and then parliament could decide whether to subject it to a referendum in June 2010. The public was given 30 days to scrutinize the draft and forward proposals and amendments to their respective Members of Parliament, after which a revised draft was presented to the Parliamentary Committee on January 8, 2010. The Parliamentary Select Committee (PSC) revised the draft and returned the draft to the Committee of Experts^[4] who published a Proposed Constitution on February 23, 2010 that was presented to Parliament for final amendments if necessary. After failing to incorporate over 150 amendments to the proposed constitution, parliament unanimously approved the proposed constitution on April 1, 2010. The proposed constitution was presented to the Attorney General of Kenya on April 7, 2010, officially published on May 6, 2010, and was subjected to a referendum on August 4, 2010.^[1] The new Constitution was approved by 67% of Kenyan voters.^[2]

Government Structure

The key changes proposed by the new constitution released are in the following areas:

• Separation of Powers between the Three arms of government i.e. Executive, Legislature and Judiciary.
• The Executive - who holds executive authority and the qualifications.^[5]
• The Legislature - the composition, and representation of the people. An introduction of an upper house - the Senate.^[6]
• The Judiciary - qualifications to hold office and appointment.^[7]
• Devolution Only two levels of Government: National and Counties.^[8]
• Citizenship - among other issues, gender discrimination was ended, and citizens who acquire foreign citizenship will not lose their Kenyan citizenship.^[9]

Gains achieved

• An advanced Bill of Rights that among other things recognizes Socio-Economic rights of the Kenyan citizens. (Chapter Four).
• The removal of age limit of 35yrs to run for President. New draft allows people to run as long as they are of adult age. Article 137(b)
• Right to Recall legislators(Senators and Members of the National Assembly).(Article 104)
• Representation in elective bodies has to effectively meet a gender equity constitutional requirement, namely that no more than two-thirds of members shall be from either gender in its make up. Chapter 7, Article 81(b)
• Integrity Chapter, requires an Independent Ethics Commission to be set up that will monitor compliance with Integrity in all government institutions and make investigations,recommendations to the necessary authorities i.e. Attorney General and any other relevant authority.(Chapter Six)
• An advanced Human Rights and Equality Commission that will also have power to investigate and summon people involved in Human Rights abuses within the government and with the public.(Article 252)
• Equitable Sharing of resources between the National government and the County government through a resolution of Parliament. Chapter 12- Part 4.
• An Equalization Fund to improve basic access to basic needs of the marginalized communities. (Article 204).
• Any member of the Public has a right to bring up a case against the government on the basis of infringement of Human Rights and the Bill of Rights - Article 23(1)(2). The courts and government institutions are bound to the Bill of Rights as per the constitution Article 2(1), Article 10(1).
• The Salaries and Remuneration Commission that is an Independent entity and has the power of regularly reviewing salaries of all State officers to ensure the Compensation bill is fiscally sustainable. Article 230(5).
• Independence of the Judiciary is affirmed Article 160.
• An Independent National Land Commission created to Maintain oversight and manage all Land(Public) belonging to National and County Government and recommend policy on addressing complaints from public,advise the National government on ways of improving National and County land management,planning,dispute resolution. Article 67.
• Environmental Rights are recognized under Chapter 5(Part 2)
• Freedom of Media establishment from penalty on expression, by the State on any Opinion and dissemination of media. Article 34. This is subject to the Article 33.

The Executive

The executive at the top most levels will be constituted of a President, Deputy President and the Cabinet.

Key functions of the President

• Shall be the Head of state & Head of government of the Republic of Kenya.
• Shall not be a Member of Parliament
• Commander-in-Chief - and will declare war and state emergency upon approval by the National Assembly and Cabinet respectively.
• Head of Government - will yield executive authority and will co-ordinate and supervise all major sections of the executive branch.
• Shall nominate, appoint with prior approval of the national assembly, and dismiss Cabinet Secretaries.
• Preside over Cabinet meetings.
• Shall assent bills into law or refer them back to parliament for further review.
• Shall nominate, and after approval of Parliament, appoint a Chief Justice (The President will however need to consult with the PM on this appointment during the Transitional period).^[10]
• Shall nominate, and after approval of Parliament, appoint an Attorney General
• Shall nominate, and after approval of Parliament, appoint a Director of Public prosecution.
• Shall appoint Judges to the Superior Court recommended to him/her by an independent Judiciary Service Commission.
• Shall appoint Ambassadors/High Commissioners to Kenyan embassies abroad.

The Legislature

The Legislative branch will constitute of the following

An upper house - the Senate

• Each of the 47 counties will have a Senator
• A senator will be elected by the voters.
• Tentative total number of Senators will be 60.
• Presides over presidential impeachment hearings (article 145)

A lower house - the National Assembly

• Each constituency (290 the number proposed to be resolved by new Independent Electoral and Boundaries Commission) - currently there are 210.
• Majority of the Members of National Assembly will be directly elected by voters
• Each county assembly will elect a woman MP - therefore guaranteeing a minimum of 47 women MPs in the National Assembly.
• Tentative total number of MPs will be 347.
• Votes to investigate and impeach the president (article 145)

County Assemblies and Executive

• The country will be divided to approximately 47 counties - the counties are comparable to the current districts.
• Each county will have a County Executive headed by a county governor elected directly by the people and;
• A county assembly elected with representatives from wards within the county.

Judiciary

There will be three superior courts:

• Supreme Court - highest judiciary organ consisting of the Chief Justice, the Deputy Chief Justice and five other judges. This court will handle appeals from the Appeals and Constitutional courts. It will also preside over Presidential impeachment proceedings.
• Court of Appeals - will handle appeal cases from the High Court and as prescribed by Parliament. It will constitute not less than 12 judges and will be headed by a President appointed by the Chief Justice.

An independent Judiciary Service Commission will be set up to handle the appointment of judges. They will recommend a list of persons to be appointed as judges by the President(this article will be enforced after the transitional period). The commission will consist of the following:

• A Supreme Court judge - elected by members of the Supreme Court to chair the commission
• Court of Appeal judge - elected by members of the Court of Appeals to chair the commission
• The Attorney-General
• Two advocates, one a woman and one a man, each of whom has at least fifteen years' experience, nominated by the statutory body responsible for the professional regulation of advocates
• One person nominated by the Public Service Commission.

Attorney-General

• Shall be appointed by the President - with approval from the National Assembly
• Hold office for only one term of not more than 6 years.

Devolution

Devolution to the county governments will only be autonomous in implementation of distinct functions as listed in the Fourth Schedule (Part 2). This is in contrast with the Federal System in which Sovereignty is Constitutionally divided between the Federal government and the States. The Kenyan Devolution system still maintains a Unitary Political Concept as a result of distribution of functions between the two levels of government under the Fourth schedule and also as result of Article 192 which gives the president the power to suspend a county government under certain conditions. A conflict of laws between the two levels of government is dealt with under Article 191 where National legislation will in some cases override County legislation. The relationship between the National Government and the Counties can be seen as that of a Principal and a limited autonomy Agent as opposed to an Agent and Agent relation in the Federal System. More checks and balances have been introduced as requirements for accountability of both levels of government. The Parliament( Senate and National Assembly) has much discretion on the budgetary allocations to the County Governments. Every Five years the Senate receives recommendations from the Commission of Revenue Allocation (Article 217) and a resolution is passed on the criteria for Revenue allocation.

The National Government is constitutionally barred from intruding willfully with the county government role and function under the Fourth Schedule. Exceptions may require parliamentary approval (Article 191 and 192). The National Government has a role to play in the County level by performing all the other functions that are not assigned to the County Government as listed on the Fourth Schedule (Part 1).

Citizenship

The new constitution makes important reforms to the previous framework on citizenship, in particular by ending gender discrimination in relation to the right of a woman to pass citizenship to her children or spouse; by ending the prohibition on dual citizenship; and by restricting the grounds on which citizenship may be taken away. The text has been criticised, however, for not providing sufficient protections against statelessness for children or adults.^[11]

• A person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen (Art 14(1)).
• A person who has been married to a citizen for a period of at least seven years is entitled on application to be registered as a citizen (Art 15(1)).
• A person who has been lawfully resident in Kenya for a continuous period of at least seven years, and who satisfies the conditions prescribed by an Act of Parliament, may apply to be registered as a citizen (Art 15(2)).
• A person who is a citizen does not lose citizenship by reason only of acquiring the citizenship of another country (Art 16) and persons who are citizens of other countries may acquire Kenyan citizenship (Art 15(4)).
• A person who as a result of acquiring the citizenship of another country ceased to be a Kenyan citizen is entitled, on application, to regain Kenyan citizenship (Art 14(5)).

Disagreements over reform

After the draft of the constitution was released the type of government which would be implemented with the constitution was a debate amongst the various government coalitions.^[12][13] The two major political parties,the Party of National Unity (PNU) and the Orange Democratic Movement (ODM) disagreed on many points.^[12] the greatest discrepancy in opinion is over the nature of the executive branch of the government.^[12] The economic interest represented by the Kenya Private Sector Alliance (KEPSA), openly opposed the new style of government.^[12] Eventually the contentious issue of the position of Prime Minister was removed. The remaining contentious issues primarily concern abortion, Kadhi courts and land reform.

Mainstream Christian leaders in Kenya object to the constitution

1. The Proposed Constitution of Kenya in Sec 26(4) reiterates and reaffirms the current Kenyan penal code by stating: Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law. However, the church insists that the weak drafting of the clause, especially the last two parts, could allow for the same clause to be used to enact laws or justify procurement of on-demand abortion.^[14]
2. The Proposed Constitution of Kenya in Sec 24(4) exempts a section of society that profess Islam as their religion from broad sections of the Bill of Rights that relate with Personal Status, Marriage, Divorce and Inheritance.
3. The Proposed Constitution of Kenya in Sec 170 Provides for the Establishment of Kadhi Courts.
4. The Proposed Constitution of Kenya in Sec 170 (2)a Discriminates against all other sectors of society by limiting the Kadhi’s Job opportunity only to persons that Profess the Muslim Religion. The church leaders also insist that for the clarity of the separation of religion and state doctrine and equality of religion, the Kadhi courts should not be in the constitution.

A three Judge Bench of the High Court has since in a landmark ruling of a case filed six year ago, declared the inclusion of the Kadhi court illegal and against the principles of non-discrimination, separation of religion and state and constitutionalism.^[15] A section of the Muslim leadership has vowed to retaliate the ruling by seeking their own judicial declaration that the teaching of Christian religious Education in public school curriculum is illegal.^[16] The education curriculum includes religious education syllabus for both Christianity and Islam.

International reaction

Generally the whole world praised the approach that the Kenyans took to constitutional reform, seeing it as a viable way to keep corruption in check.^[17] United States Secretary of State Hillary Clinton said that "I am pleased that they have taken this step, which represents a major milestone."^[17] Other United States diplomats also commented on the unity and meaningful intent which Kenyans were presenting in approaching the reform.^[17] Non-profits concerned with civil society and other reforms also praised the approach.^[17] For example, the Africa director for the International Foundation for Electoral Systems said that "The fact that they are bringing in stakeholders to lend their voice and make recommendations will strengthen civil society because they will keep a close eye on the process and, if it is passed, will ensure that it is respected and properly implemented."^[17]Canadian Foreign Affairs Minister Lawrence Cannon stated: "On behalf of the Government of Canada, I wish to congratulate Kenya on the adoption of its new constitution. This is a significant achievement and an important moment in Kenya’s history. We welcome the leadership shown by President Mwai Kibaki and Prime Minister Raila Amolo Odinga within the Grand Coalition Government in bringing Kenyans together to tackle their future and make progress through dialogue, and in implementing the reforms set out in the country’s National Accord and Reconciliation Act. However, we deplore the Government of Kenya’s invitation to Sudanese President Omar al-Bashir to attend the constitution’s adoption ceremony. Given the International Criminal Court arrest warrants against President al‑Bashir, this contravenes Kenya’s obligations as a state party to the Rome Statute of the ICC, which requires that it cooperate with the Court. Kenya is cooperating with the ICC on investigations relating to Kenya’s 2007-2008 election violence and should reaffirm its complete cooperation and commitment to the ICC.".^[18]

See also

• Constitution of Kenya (1963)
• Constitutional Reforms in Kenya
• Kenyan constitutional referendum, 2005
• Kenyan constitutional referendum, 2010

References

1. ^ ^{a b} "Kenya referendum date set", Daily Nation, May 14, 2010
2. ^ ^{a b} "New Kenyan Constitution Ratified". Voice of America. 6 Aug 2010. http://www1.voanews.com/english/news/africa/Kenyas-New-Constitution-Ratified-100158209.html. Retrieved 6 August 2010. 
3. ^ "Institutional Reform in the New Constitution of Kenya", International Center for Transitional Justice (ICTJ)
4. ^ http://www.coekenya.go.ke/
5. ^ "New Laws, the principle structures of the National Executive, Authority of the president, election and disqualification of the president of Kenya". Kenyayetu.comxa.com. 2007-11-06. http://kenyayetu.comxa.com/chapter9.html. Retrieved 2010-08-27. 
6. ^ "Establishment,role,composition,membership,offices,procedures and general rules,new laws of kenya". Kenyayetu.comxa.com. 2007-11-06. http://kenyayetu.comxa.com/chapter8.html. Retrieved 2010-08-27. 
7. ^ "Judicial system of Kenya, supreme court, appeal,high court,kadhi's, chief justice and Establishment of the Judicial Service Commission". Kenyayetu.comxa.com. 2007-11-06. http://kenyayetu.comxa.com/chapter10.html. Retrieved 2010-08-27. 
8. ^ "Devolution of power, devolved system of government and objects of devolution". Kenyayetu.comxa.com. 2007-11-06. http://kenyayetu.comxa.com/chapter11.html. Retrieved 2010-08-27. 
9. ^ "voting 2010,chapter 3 The Proposed Constitution of Kenya". Kenyayetu.comxa.com. 2007-11-06. http://kenyayetu.comxa.com/chapter3.html#A16. Retrieved 2010-08-27. 
10. ^ Dwyer Arce (February 19, 2011). "Kenya parliament speaker rules presidential nominations unconstitutional". JURIST - Paper Chase. http://jurist.org/paperchase/2011/02/kenya-parliament-speaker-rules-presidential-nominations-unconstitutional.php. 
11. ^ Citizenship Rights in Africa Initiative, Comments on the Citizenship Provisions of the Draft Kenyan Constitution (draft dated 23 February 2010)
12. ^ ^{a b c d} Clottey, Peter (15 December 2009). "Human Rights Official Says Kenyans Want an Accountable Government". VOA. http://www1.voanews.com/english/news/africa/Human-Rights-Official-Says-Kenyans-Want-an-Accountable-Government--79367812.html. Retrieved December 18, 2009. 
13. ^ "Kenyan parties wrangle over powers of future presidents". Afrique in ligne. December 17, 2009. http://www.afriquejet.com/news/africa-news/kenyan-parties-wrangle-over-powers-of-future-presidents-2009121740205.html. Retrieved December 18, 2009. 
14. ^ http://www.nation.co.ke/News/politics/Church%20adamant%20on%20No%20vote%20in%20new%20law%20/-/1064/893606/-/5upiogz/-/index.html
15. ^ http://www.nation.co.ke/News/Kadhi%20courts%20illegal%20judges%20rule/-/1056/924614/-/rcndgfz/-/index.html
16. ^ "The Standard | Online Edition :: We will act if Kadhis’ Courts go, say irked Muslim leaders". Standardmedia.co.ke. 2007-07-04. http://www.standardmedia.co.ke/InsidePage.php?id=2000010251&cid=4&. Retrieved 2010-08-27. 
17. ^ ^{a b c d e} Fisher, Jim (8 December 2009). "Clinton, Africa Experts Laud Kenya Constitution Reform Process Ambassador Ranneberger hopes “historic opportunity” is not lost". America.gov. http://www.america.gov/st/democracyhr-english/2009/December/200912081350591EJrehsiF6.330073e-02.html?CP.rss=true. Retrieved 18 December 2009. 
18. ^ "Canada Welcomes Kenya's New Constitution". Foreign Affairs and International Trade Canada. 2010-08-30. http://www.international.gc.ca/media/aff/news-communiques/2010/275.aspx?lang=eng. Retrieved 2010-08-30. 

External links

• Website of the Committee of Experts on Constitutional Review
• Constitution of Kenya, 2010, as promulgated
• The Proposed Constitution of Kenya, published 6th May, 2010
• Online interactive Proposed Constitution mobile-friendly website