The Constitution of Kenya, 2010

Chapter 1: Sovereignty of the People

  • As Citizens, we are sovereign. Power comes from us, the citizens and not from our leaders.
  • The Draft Constitution protects us from abuse by leaders. The present Constitution allows leaders to abuse us through misuse of office.
  • In the Proposed Constitution, no leader who has abused his or her office can compete for public office. There is no such rule in the present Constitution.

Chapter 2: The Republic

  • The sovereignty of the Republic is clearly defined.
  • All officers of the Republic will work and conduct business according to National Values and Principles.
  • The present Constitution has no values or principles to guide leaders.
  • The law will be interpreted on the basis and foundation of the same principles for everybody.
  • Culture is recognized as the foundation of the nation.

Chapter 3: Citizenship

  • Citizenship is clearly defined and broadened to be fair to both men and women.
  • Dual citizenship is provided for.
  • Women will confer citizenship to their spouses.
  • There is clear protection of the status of citizenship.
  • There will be clear rights and duties for citizens.

Chapter 4: Bill of Rights

  • Rights and fundamental freedoms are now defined in a very broad and elaborate manner.
  • The State will not pretend to give rights. Instead, the State will secure and protect the rights.
  • State harassment and intimidation will no longer be tolerated by the law.
  • Protection and realization of the Bill of Rights is clearly stated as a duty of every organ of State. The present Constitution does not have this.
  • Redress for breach of right is provided for.
  • The right to life is specifically provided for. This is not the case in the present Constitution.
  • Abortion is clearly outlawed. This is not the case in the present Constitution, but exists in the Penal Code.
  • Termination of pregnancy can only be allowed under emergencies, where a trained and qualified health professional determines this to be necessary.
  • The Bill of Rights protects the rights, dignity and fundamental freedoms of individuals and communities.
  • Discrimination of whatever nature is outlawed.
  • Citizens have the right to institute proceedings for enforcement of rights.
  • Anyone can commence proceedings seeking redress of denial of another’s rights and fundamental freedoms.
  • No fee will be charged for commencement of proceedings to redress rights or fundamental freedoms that have been denied.

Chapter 5: Land and Environment

  • Land rights are protected. Foreigners can only hold land as leasehold.
  • All land holding by foreigners, including present leases, shall be up to a maximum of 99 (ninety-nine years) only. Historical land oppression by 999 year leases will come to an end.
  • Land use and management shall by law benefit local communities
  • Unfair land holding will be revoked.
  • Community land is protected from encroachment by State.
  • Public land will not be abused and taken away by powerful people as is the case today.
  • Land grabbing will be a thing of the past.
  • Rivers, forests and water bodies shall be protected by law.
  • There will be equitable access to land.
  • All lawful land rights are secured; only someone who has stolen land needs to worry.
  • National Land Commission is devolved.
  • County governments will manage land in trust of the people in accordance with the Proposed Constitution.

Chapter 6 : Leadership and Integrity

  • State officers are clearly servants and not rulers.
  • Conflict of interest by state officers is outlawed. This is not the case today.
  • State officers who abuse their offices shall be permanently disqualified from ever occupying public office again, over and above other punishment.
  • Public officers shall not receive gifts of whatever nature. This will assist in the fight against corruption.
  • There will be sanction against violators of the principle of leadership and integrity.

Chapter 7: Representation of the People

  • The proposed electoral system allows citizens to vie for seats as members of political parties or independent candidates,
  • Party Lists will promote equity in representation, regulation of parties to curb patronage and ethnicity.
  • Gender parity is proposed, and curbs on electoral boundaries based on political patronage are highlighted.
  • It’s a departure from the current Constitution that’s devoid of gender equity, with political parties that are mere fiefdoms that serve as personal vehicles for election. It does not forbid electoral malpractices.

Chapter 8: The Legislature

  • The Legislature shall now comprise two Houses – Parliament and Senate, with the latter checking Parliament’s excesses.
  • It provides for separation of Legislature from the Executive, and a law to control the calendar of the two Houses.
  • Effective power to the Legislature to check the Executive is proposed in the. Constitution.
    Currently, the separation of powers is minimal, with no real legal mechanism for checks and balances in the absence of an upper House to check Parliament. The situation is further compounded by the Executive’s massive power and influence over the House and the attendant breaches.
  • Citizens will now be empowered to recall incompetent and non-performing Members of Parliament.
  • The President cannot frustrate legislation by failing to assent to Bills, as with a two thirds majority in both Houses, a Bill will be taken to have been assented to.

Chapter 9: The Executive

  • Unlike before, Executive authority is declared to derive from the people and exercised as per the Constitution, not the President as in the current Constitution
  • A disputed Presidential Election shall be determined in the Supreme Court within a period of 21 days.
  • The President can be impeached and removed from office if the two Houses garner two-third majorities.
  • Under the Proposed Constitution, the President can be impeached without dissolution of Parliament. In the present Constitution, if the President is impeached, Parliament stands dissolved, thus jeopardizing the MPs’ tenure.
  • There will be a Deputy President who must seek election as a running mate of the President. Parliament shall mandatorily approve all Presidential appointments.
  • Parliament will equitably distribute national resources.
  • The Proposed Constitution provides for new procedures, timelines for elections and challenges to the Presidential elections, making it impossible to swear a President in surprise
  • Cabinet appointments will be made from outside Parliament to curb political corruption and patronage.
  • No longer shall we have a bloated Cabinet, as their number will be set to reduce unnecessary expenses
  • There will be security of tenure for the Director of Public Prosecutions, who shall prosecute without fear or favour.

Chapter 10: The Judiciary

  • Judicial authority shall derive from the people to serve the best public interest, unlike the current state where the Judiciary is but an organ that’s not guided by any people-based public interest.
  • An independent Judicial Service Commission (JSC) with public participation, is established in the Proposed Constitution.
  • Judges will be vetted and approved by Parliament, with the vacant positions being advertised and filled on the basis of equity, equality and expertise. This is a departure from the current practice in which judges are appointed opaquely, with a JSC that’s beholden to the President.
  • There will be a Deputy Chief Justice to promote administrative accountability. Corruption has been rampant without accountability and any checks and balances.
  • Kadhi’s Courts are established as subordinate courts to the High Court – as is the case in the present Constitution.
  • The jurisdiction of the Kadhi’s Court shall be limited to the determination of questions of Muslim Law relating to personal status, marriage, divorce or inheritance proceedings, in which all the parties profess the Muslim religion, and submit to the jurisdiction of the Kadhi’s Courts. The Draft Constitution keeps the principle of inclusivity, as Kenya does not discriminate against minorities.

Chapter 11: Devolved Government

  • Devolution of power and resources is provided to promote effective citizen participation in governance and accountability.
  • County governments will replicate national governance structures at the local level.
  • Taxation will be levied to enhance development at local level, and provide equitable opportunities for citizens to participate meaningfully in matters of government.
  • This is a change from the current centralized government with its plethora issues of corruption and nepotism. All power and authority is concentrated on the Presidency, with little or no citizen participation, other than the periodic ritualistic five-year elections.

Chapter 12: Public Finance

  • Imposition of tax, regulation of taxation, allocation and establishment of funds are key features of the new Constitution.
  • Distinct objectives and purposes of the taxes are clearly set out. Currently there’s no budget office. The present Constitution creates the Consolidated Fund, giving Parliament the power, but no capacity to supervise the Fund’s application.
  • Public loans will be approved by Parliament and made public. Under the present Constitution, Executive budgets, usually transacted secretly, provide an ideal environment for misappropriation of public resources.
  • The creation of the Budget and Revenue Commission (BRC) will strengthen accountability and reduce theft or misuse of public resources for the benefit of a few regions at the expense of the rest of the country.
  • The present constitution does not have any known principles or guidelines for accountability and transparency. Public debt is incurred by the Executive and kept secret, thus providing an ideal environment for corruption and theft.

Chapter 13: The Public Service

  • The Public Service is now established with principles of probity, best public interest, equality, equity, transparency and national values.
  • Public servants are employees of the public, unlike before.
  • Regulation of the service provides for coherence between National and County governments.
  • The unprincipled Public Service that lacked accountability and was riddled with ethnicity and nepotism, served at the pleasure of the President. Its service delivery was further distorted and compromised by the shadowy official secrecy and a chain of command that rarely responded to public accountability.

Chapter 14: National Security

  • Unlike before when it was considered secret, National Security is now clarified, and is founded on National Principles and Values.
  • National Security will be subjected to Parliamentary supervision and authority of the Constitution.
    Public officers previously failed to distinguish personal misadventure from National Security concerns, thus precipitating abuse.

Chapter 15: Commissions and Independent Offices

  • A number of commissions will be established to safeguard the common National Values for effective deliver of service.
  • The Commissions that are guaranteed substantive and operational independence, are protected from manipulation
  • All Commissions including the Judicial Service Commission and the Public Service Commission (which are not subordinate to the Constitution), are currently created in a manner that serves the interests of the President.

Chapter 16: Amendment of the Constitution

  • The amendment of the Constitution, complete with a Referendum and absolute majority of the two Houses, is made deliberately difficult and cumbersome so that values espoused are not lost through frivolous and sectarian political interests.
  • Citizens can also petition for amendment by raising one million signatures. Political manipulation has easily been used to amend the Constitution before.
  • The present Constitution has no safeguards against Parliamentary amendment, resulting in the innocuous one of 1963, to the mongrel of today. The consequences include a Parliament that’s not accountable to the public. In the absence of a mechanism to cause amendments, the public must rely on the goodwill of the politicians.

FACT OR MYTH?

1. The Kadhis Courts:
Do Kadhi’s Courts elevate one religion over the rest? Do they breach the principle of equality of all religions? No. This is a myth.
a..) Kadhi’s Courts are not doctrinal. Their role is not to promote Islam as a religion. They are a judicial system THAT HAS BEEN IN THE CONSTITUTION SINCE INDEPENDENCE. They only determine matters of personal law related to marriage, divorce and inheritance, where the people concerned with the matter are all Muslims and they accept to take the matter to the Kadhi. If they do not want to go to Kadhi’s Courts, they can go to the other courts, even when they are all Muslims.
b.) These courts have existed in the Constitution and Laws of Kenya since independence. Even if the Proposed Constitution fails, Kadhi’s Courts will continue to be there, in exactly the same manner as they are in the Proposed Constitution.

2. Abortion:
Does the draft permit abortion on demand? Nothing could be further from the truth. In the Proposed Constitution, abortion is outlawed: “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”. The ordinary meaning of this provision is that termination of pregnancy is only permitted in select circumstances. The definition of health professional and identification of places and clear circumstances of providing abortion as a medical procedure, will be provided for by the law contemplated by the “. . . written law”. It is as clear as that. It is also important that as much as abortion is a vile sin, as most others are, the Constitution cannot and should not be used to criminalize religiously-objectionable sins.

3. Land:
Will the proposed National Land Commission “nationalize” land and dispossess the majority of their land? NO, THIS IS OUTRIGHTLY FALSE. The Proposed Constitution defines land into three broad categories - Public, Community and Private. Primarily, unlike in the present Constitution, where land is presumed to belong to the Crown, and the President is the trustee of the Crown. In the Proposed Constitution, all land belongs to Kenyans collectively. Management of land is therefore prescribed to be conducted in favour of the collective interest of Kenya, but without depriving the individual of their rights over private land. Moreover, the leaseholds that were previously held for much longer than the reasonable lifespan of a human being, have been reduced to 99 years. Why would any person seek to have 999 year leasehold! The fact that the National Land Commission is devolved to the County level, means that the actual management and regulation of land use will be under the control of the local citizens, and will be managed by the communities in their best interest, in conformity with the national good.

4. Land ceiling:
The truth is that this was the view of majority Kenyans, especially because some few rich and powerful individuals have turned themselves into landed aristocrats with so much land the size of a province, when majority of Kenyans are landless. The purpose of the new Constitution in the first place, was to deal with such distorted wealth ownership, and create a near level ground for all Kenyans to achieve their potential.

5. Devolution:
The object of devolution is to promote accountability, citizen (community) participation, self governance and overall democracy, among others. The opposition now seems to be about the sizes and possible concerns about ethnic configuration of the units. These may be debatable issues but are definitely not sufficient to reject the draft for. The structure of Counties will moreover be under regular review, as provided for in the Proposed Constitution. Citizens will continue to be invited to make contribution to the structure and composition of Counties, before the Independent Electoral and Boundaries Commission.

6. Provincial Administration:
The Provincial Administration has always been a machinery for the Centralized Government to control the lives and livelihoods of the people. It is a machinery of subjugation in spite of the perceived usefulness in providing security in the marginalized areas. Those concerns will be resolved when the County Governments take up the responsibilities of providing their own security.

7. Disciplined Forces right to picket:
Some protagonists have posed that the right to picket is provided for in favour of military and other disciplined forces. This is simply NOT TRUE. Article 24 (5) specifically provides that legislation shall be enacted to limit the enjoyment of these freedoms by the military and the police. It is a case of misunderstanding that there is going to be allowed the rights to picket.

8. Judiciary:
Opposition has also been raised about the transitional sections regarding the Judiciary. The draft provides that in the coming of the new Constitution, all judges will be vetted afresh. Those who will not accept to be vetted will leave with their benefits. Secondly, their mode of appointment did not correspond to the principles of public control and accountability.

9. Members of Parliament:
There are allegations that the Parliament will be powerless. The truth is that the levels of accountability and citizen participation are intended to ensure that no single institution is too strong as against the others. Secondly, the functions of Parliament are defined well and therefore there should be no weakness or doubts. Overbearing control by any one institution against another will be replicating the current situation, where the Executive controls the rest or in practice where Parliament would arm-twist the others.

Cost of government:
The cost of running the devolved and national government is feared to be high. The truth is that the current centralized framework is far too expensive because of wasteful expenditure, lack of accountability, obscene and endemic corruption. An accountable devolved democratic government will in the long term reduce expenditure, as well as increase productivity as a result of enhanced individual esteem and trust in accountable government.