The Proposed Constitution of Kenya – Review and Highlights

This is my digest of the just published, Proposed Constitution of Kenya. I have taken great liberties to highlight the articles, sections and subsections that touched me. I have added my comments in sime places, in others I have lifted the article or section verbatim. This is to give a broad view of the document, and specifics can be read on the actual. Also not not all chapters are represented in this digest, some were dull.

A copy of the Proposed Constitution is here. From your mobile go to http://katiba.mobi

I love this opening, just read and feel it.

PREAMBLE

We, the people of Kenya—

ACKNOWLEDGING the supremacy of the Almighty God of all creation:

HONOURING those who heroically struggled to bring freedom and justice to our land:

PROUD of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation:

RESPECTFUL of the environment, which is our heritage, and determined to sustain it for the benefit of future generations:

COMMITTED to nurturing and protecting the well-being of the individual, the family, communities and the nation:

RECOGNISING the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law:

EXERCISING our sovereign and inalienable right to determine the form of governance of our country and having participated fully in the making of this Constitution:

ADOPT, ENACT and give this Constitution to ourselves and to our future generations.

GOD BLESS KENYA

Awesome!

Lets dig in……….

Chapter One – Sovereignity of The People and Supremacy of This Constitution

Nothing exciting, read on

Chapter Two – The Republic

Article 8 – No state religion. Simple. Good.

Article 9 (3) – Kenyatta Day is now Mashujaa Day (very fitting), Moi Day scrapped (it was ridiculous in the first place, so I say….good riddance)

Chapter Three – Citizenship

Article 16 – A citizen by birth does not lose citizenship by acquiring the citizenship of another country. Diasporians who have been clamouring for this, start filling applications in your adopted countries.

Article 18 (g)- Parliament to enact legislation giving effect to the provisions in this Chapter. According to Schedule 5, this must be done within one year.

Chapter Four – The Bill of Rights

This chapter is quite comprehensive, and everyone needs to familiarize themselves with it. It is quite elaborate – freedoms, rights, justice, comsumer rights, environmental rights, media, fair hearing, application of justice, children, people with disabilities, youth, marginalised groups, minorities, elderly people, state of emergency, human rights and equality. It’s all there.

Article 26 – Right to life. Please read carefully what the Constitution says, reproduced here, verbatim;

26

(1) Every person has the right to life.

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

(3) A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.

(4) 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.

Enough said. Where is the ambiguity?

Chapter Five – Land and Environment

The following is verbatim; read carefully

Article 68 – Parliament shall —

(a) revise, consolidate and rationalise existing land laws;

(b) revise sectoral land use laws in accordance with the principles set out in Article 60 (1); and

(c) enact legislation—

(i) to prescribe minimum and maximum land holding acreages in respect of private land;

(ii) to regulate the manner in which any land may be converted from one category to another;

(iii) to regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage;

(iv) to protect, conserve and provide access to all public land;

(v) to enable the review of all grants or dispositions of public land to establish their propriety or legality;

(vi) to protect the dependants of deceased persons holding interests in any land, including the interests of spouses in actual occupation of land; and

(vii) to provide for any other matter necessary to give effect to the provisions of this Chapter.

Hope that is clear, owoing to our onbsession with matters, land. According to Schedule 5, the legislation to give life to Article 68 must be done within 18 months.

Chapter Six – Leadership and Integrity

Boring stuff.

Chapter Seven – Representation of The People

Article 85 – Any person is eligible to stand as an independent candidate for election if the person –

(a) is not a member of a registered political party and has not been a member for at least three months immediately before the date of the election

Article 88 (1) – There is established the Independent Electoral and Boundaries Commission

Article 89 – There shall be 290 constituencies of the National Assembly, which is established by Article 97 (1) (a)

According to schedule 5, legislation on Articles 82 (elections), 87 (electoral disputes), 88 (Independent Electoral and Boundaries Commission) and 92 (political parties) must be enacted within one year. Very important.

Chapter Eight – The Legislature

Article 93 (1) – There is established a Parliament of Kenya, which shall consist of the National Assembly and the Senate.

Article 97 – The National Assembly shall comprise – 290 elected members from the constituncies, 47 women one from each county, 12 nominated by political parties according to number of seats won to represent special interests including the youth, persons with disabilities and workers. Total 349 members, plus the Speaker, an ex-officio member.

Article 98 – The Senate shall comprise – 47 elected members one per county, 16 women nominated by political parties according to the seats won, 2 youth (man and woman), 2 members with disabilities (man and woman). Total 67 members, plus the Speaker, an ex-officio member.

Article 101 (1) – A general election of members of Parliament shall be held on the second Tuesday in August in every fifth year. Brilliant stuff, no more surprises, start marking your calenders.

Article 104 (1) and (2) – People may recall members. In Section 2, Parliament to legislate, according to Schedule 5 within two years, on how the the recall clause actually works. This is very sad, they will move to save their sorry behinds.

Article 126 (1) and (2) – Either House may sit anywhere in Kenya. Great, let’s move them to Lodwar already, will help open up the area

Chapter Nine – The Executive

Article 129 (1) and (2) – Executive authority is ours to exercise as we deem necessary. The person we elect as President has this authority, no monkeying around.

Article 131 (3) – The person we appoint to exercise executive authority, also known as President, shall NOT hold any other State or public. Very important since we want focus.

Article 132 (e) – The President shall, with the approval of Parliament, declare war. Very important, remember, Kenya Armed Forces mission … “giving the enemy a reason to die for their country”. We can’t deny them that.

Article 138 (4) a) and b) – Winner of Presidential election must garner more than 50% of all votes and at least 25% of votes in half of the counties. That’s called mandate. By the people. For the people.

Article 138 (4) – Presidential election run-off between the top two contenders within 30 days

Article 138 (10) a) and b) – Electoral Commission MUST declare winner within 7 days of election in writing to Chief Justice and incumbent President. Very important, no wasting time here.

Article 140 (1) (2) (3) – Presidential election petition within 7 days, Supreme Court decison within 14 days (and its final), fresh election within 60 days after determination. Solid stuff, no monkeying around.

Article 148 (1) – President’s declared running mate automatically becomes Deputy President, simple. I hope my friends are considering running for Presidency.

Article 152 (1) d) – Cabinet Secretaries (formerly Ministers) shall be between 14 and 22 in number. Just imagine that! Make it 14 please.

Article 152 (3) – A Cabinet Secretary shall not be a Member of Parliament. Its about time! I shall definitely be gunning for one of the posts.

Chapter Ten – Judiciary

Article 159 (1) – Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution. Thats sounds just great! We are indeed the holder’s of all the power.

Article 169 (1) The subordinate courts are (among others) —

(b) the Kadhis’ courts

Article 169 (5) The jurisdiction of a Kadhis’ court shall be 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 and submit to the jurisdiction of the Kadhi’s courts. Simple and clear, what the hullabaloo about?

Chapter Eleven – Devolved Government

Article 176 (1) There shall be a county government for each county, consisting of a county assembly and a county executive.

Article 177 (1) A county assembly consists of—

a) members elected by the registered voters of the wards

Article 179 (1) The executive authority of the county is vested in, and exercised by, a county executive committee.

Article 179 (2) The county executive committee consists of—

(a) the county governor and the deputy county governor; and

(b) members appointed by the county governor with the approval of the county assembly

Article 180 (1) The county governor shall be directly elected by the voters registered in the county, on the same day as a general election

Article 184 (1) National legislation shall provide for the governance and management of urban areas and cities and shall, in particular—

(a) establish criteria for classifying areas as urban areas and cities

The legislation for urban areas and cities, according to Schedule 5, must be enacted within one year.

Chapter Twelve – Public Finance

Nothing exciting, just mind-numbing money matters, dig in if you have the stomach.

Chapter Thirteen – The Public Service

Boring.

Chapter Fourteen – National Security

Article 243

(1) There is established the National Police Service.

(2) The National Police Service consists of—

(a) the Kenya Police Service; and

(b) the Administration Police Service.

(3) The National Police Service is a national service and shall function throughout Kenya.

So there you have the cops, we still need them. We hope Parliament will enact legislation to improve on their operations and professionalism.

Article 245 (1) There is established the office of the Inspector-General of the National Police Service.

The holder of this office can only serve one, four-year term, no re-appointment. This will be the big cop, lording over both the Kenya Police Service and Administration Police Service. Each will be headed by a Deputy Inspector-General. No fuss.

Sixth Schedule (Article 262) – Transitional and Consequential Provisions

This is very detailed, and I could not understand most parts since am a lay man. It deals with what happens after the new Constitution is promulgates, after a resoundig YES vote by the majority. You better read it for yourself.

Again the Proposed Constitution is here. From your mobile go to http://katiba.mobi