kenyas proposed draft constituiton 2010

8/9/2019 Kenyas Proposed Draft Constituiton 2010

1/96

HANDBOOKfor Civic Education

Proposed Constitution of Kenya

Committee of Experts

on Constitutional Review


2/96


3/96

HANDBOOKfor Civic Education

Proposed Constitution of Kenya


4/96

Consultants


5/96

Contents

Acknowledgement 4

Foreword 7

The Committee o f Experts (CoE) 8

Compa rative Matrix betweenthe Current Constitution a ndthe Prop osed Constitution 10

Dep uty Direc tors 13

Part One

Background Information 15

The purpo se of the Hand bo ok 16

Some Basics 18

What is a Co nstitution? 18

What Kind of C onstitution have Kenya ns

be en loo king for? 19

Provisions of the Prop osConstitution

Citizenship

Land

The Bill of Rights

Elec tions

Politic a l Pa rties

Arms of Government

The Exec utive

The Judic iary

Funding for Nationa l Gove

Devolved Governments

Co mm issions and

Indep endent Offices

Lea dership and Integrity

Part Three

Moving Forward


6/96

Acknowledgement

This Handbook on Civic Education on the proposed constitution is the h

effort. It has definitely taken quite some burning of midnight oil, thoug

current look and tone of this Handbook is indeed a fine mosaic of valu

am therefore confident that the content herein, will speak to all Kenyans, and in

Proposed Constitution ahead of the referendum.

For a great job done within record time, I wish to thank the Committee of Expe

Members Bobby Mkangi, Dr. Chaloka Beyani, Abdirashid Abdullahi and Prof.

for both setting the tempo of this document, and finding time to moderate the c

Without the leadership and dedication of CoEs Deputy Director in charge of C

Mobilization and Outreach department (CMO), Veronica Nduva; Programme

and all the CMO staff, this effort would not have borne such fruit. I applaud the

offered by the legal drafters, Gad Awuonda, Peter Musyimi and Gicheru Ndoria

technical soundness and clarity of the document. Special gratitude goes to Mau


7/96

I am also indebted to the development partners and the Government Ministrie

walked with the CoE and ultimately made it possible for the production of thi

In particular, I am thankful to the Coordination Liaison Office team, under th

Amb. Nana Effah-Apenteng, through which the various development partners

the UNDP-Kenya basket fund the Ministry of Justice, for their invaluable con

Thank you CoE members of staff, for without your dedicated efforts in your v

this Handbook would not have seen the light of day.

A constitution is only made once in a lifetime! Through this Handbook, I urgeparticipate with knowledge, in the making of their Constitution.

Katiba Mpya, Kenya Moja!


8/96

KatibaMpya,

KenyaMoja


9/96

When the Committee of Experts (CoE) was tasked to unlock the p

ultimately pave way for a new constitution, its mandate by exten

bequeathing Kenyans a long-drawn dream. It is therefore incum

Kenyan to take note of the spirit and letter espoused in the Proposed Consti

To appreciate the shift from old to new and acknowledge the adjustments toKenyans have hoped for over the years, it is necessary to make a quick comp

the current and the proposed law. Whereas in the current Constitution sover

the Republic, thus limiting the rights of individuals, in the proposed law, sov

the people. The benefits of this shift guarantee that Kenyans will enjoy a wi

once the new law becomes effective.

The structures of governance in the Proposed Constitution will take power c

and involve them in determining the course of their destiny whilst providing

as well as better checks and balances in the conduct of public affairs. In ad

of property, and the right to prosper and benefit from ones efforts has been

Foreword


10/96

Committee of Experts (CoE)

The Committee of Experts on

Constitutional Review is an

independent body established under

the Constitution of Kenya ReviewAct 2008.

The CoE comprises eleven members

nominated by Parliament and

appointed by the President.

1


11/96

The mem bers a re:

1. Nzam ba Kitonga

(Chairperson)

2. Atsango Chesoni

(Vic e Cha irperson)

3. Prof. Fred rick

Ssempebwa

4. Otiende Amollo

5. Dr. Cha loka Beyani

6. Hon. Njok i Ndung u

7. Bobby Mkangi

8. Abdirashid

Abdullahi

9. Prof. Christina

7

The CoE manda te

8

11


12/96

C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE WComp ara tive Ma trix between

The c urrent Constitution and the Proposed Constitution

PreambleNational Values, Princi

Basics: Settingbasis and

reason for theConstitution

Sovereignty is placed on theRepublic.Limited Rights

Sovereignty belongs to the Expanded Bill of Rights incluand group rights

Ownership/Membership/IndividualRights/Obligations

Nil

ISSUE THE CURRENT CONSTITUTION THE PROPOSED CONST


13/96

K A TI B A M PY A , K EN Y A M O J A HComp ara tive Ma trix between


Clear leade

Governme

A strong na

Roles betw

Two chamb

An indepenCourt

President a

Presidentia

Checks andCabinet limfrom outsid

Independe

Recall of M

No leadership code

Centralized structure of

GovernmentAll powerful presidency

No clear separation of powers

Role of Parliament is weak

No independent candidates

No Supreme Court

No recall of MPs

ISSUE THE CURRENT CONSTITUTION THE PROPOSE

GoverningStructures

Leadershipcode

NationalExecutive

Judiciary Parliament


14/96

C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE WComp ara tive Ma trix between


Fair and equitable alloof resources

Public resources

Only trust land is recognized

Land is held and controlledcentrally

No safeguards onlandholding

Land is vested in the

Other land ownership categare provided.

Provision on the Land Comm

Land belongs to the people

Clear functions provided forPublic funding allowed for paIndependent Electoral and Bo

Inequitable distribution of

resources criteria

ISSUE THE CURRENT CONSTITUTION THE PROPOSED CONST

Land


15/96

Deputy Directo

2

Right behind the 11 experts to whom

the work of evolving a new constitution

for Kenya rested have been four

Deputy Directors who have ensured

that the various functions assigned

The Dep uty Direc to rs a re:

1. Veronica Nduva

Civic Educa tion, Mobiliza tion& Outreac h

2. Peter Ayug iFina nc e & Administration

3. Dr. Michael Chelogoy

Resea rc h, Dra fting a ndTec hnica l Sup port

4. Vitalis MusebePublic Informa tion & Med ia


16/96


17/96

K A TI B A M PY A , K EN Y A M O J A H

Part

Handbook as pa rt

of the ma ndate

The Purpose of

the Handbook

Understanding

some b asics

What is a Constitution?

Why are Constitutions

necessary?

What kind of Constitution

have Kenyans been

look ing for?

Background In


18/96

C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE WC M M I TTE O F EX PER TS O N C O N STI TU TIO N A L R EV I E W

The Purpose o f the Handbook

C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE W

P

rimarily, this handbook is intended to highlight the ground-break

in the Proposed Constitution. At the same time, this document ca

the point of departure that foregrounds the spirit and focus of th

Constitution, compared to the current one. The Proposed Constitution i

towards the welfare of the citizen.

Specifically, the purpose of this handbook is to equip Kenyans with know

Proposed Constitution and enable them to make informed decisions as th

to vote in the forthcoming referendum. The document will be particularly

to civic education providers, opinion leaders, mobilizers and every Kenya

understanding the provisions contained in the Proposed Constitution and

it holds for the future of this country.


19/96


A constitution is a social contract.

and provides a framework for them to realise their dream

It binds members of a group togeth


20/96


Some Basic s

What is a Co nstitution?

Aconstitution is a general

understanding among members ofa group who have identified their

common interests/needs and how the interests

may be achieved. This understanding is

sometimes referred to as organizational rules.

Why are Constitutions Importa nt?

Constitutions are important because they:

establish government

and offices.

provide structures/of

trust for the people.

check authority/pow

rights.

guarantee checks on a

functions and roles.

ensure accountability

responsiveness.

enable individual effowealth.

ensure wealth is distri

promote individual w

The Proposed

Constitution

will create,

protect and set

rules to manage

institutions that


21/96


responsibilities of citizens.

independent structures that safeguard and guarantee

citizens rights and benefits.

equitable distribution of resources.

clear separation of roles and powers.

clear checks and balances on powerboth horizontally and vertically.

participation of citizens in the

overall governance and at

immediate levels.

provision for equalityand affirmative action

for the minorities and the

marginalized.

What Kind of Co nstitut

looking for?

From the views collected by

Review Commission (CKR

by the Committee of Expe

constitution that:

recognizes them, their v

safeguards and respects

promotes peoples invol

participation in governm

expands the Bill of Rigeconomic, and cultural

checks the powers of th

clearly allocates and sep

organs.The Proposed


22/96


provides for a devolved government.

provides for equitable distribution of resources and

opportunities.

contains affirmative action and prohibits all

discrimination.

A newconstit

will gua

my sec

freedomrights

aMpya


23/96


Attemp ted Changes

Due to the weaknesses listed, there have been various

attempts to change the constitution, since1998.

In 2005, a referendum was

which was voted against.


24/96


Weaknesses in the

Current Constitution


Does noidentitybrings t

Does nogoals anare to p

Does norelationsthe Gove

Does noeconomi

Allows fmatters


25/96


Only one centralized Government.

An imperial presidency.

The President has unchecked powers toappoint.

A disproportional representation in theNational Assembly.

Cabinet seating both in Parliament andthe Executive.

No Supreme Court.

Does not provide for devolved

cbae

o



26/96

Unlike the old constitution, the proposed one has s

checks and guarantees individual rights


27/96


Part

The review proc ess

The foundation of theProposed Constitution

Framework for the

Proposed Constitution

Provisions of the

Proposed Constitution

CITIZENSHIP

LAND

THE BILL OF RIGHTS

ELECTIONS

POLITICAL PARTIES

ESTABLISHMENT OF PARLIAMENT

THE EXECUTIVE

THE JUDICIARY

The Proposed Co


28/96


The process leading to the Proposed Consti

of the national accord

started in December 2008 as one of


29/96


The Proposed Constitution

The Review Proc ess

The process leading to the Proposed Constitution

started in 2008, as one of the pillars of the national

accord to address long term reforms, hence the

Constitution of Kenya Review Act, 2008. The Act

established and placed responsibility on four organs of

the review process namely:

1. The Committee of Experts (CoE) on Constitutional

Review.

2. The Parliamentary Select Committee on

Constitutional Review (PSC).

The mandate of CoE has a

been outlined (see page 7). Tis mandated to deliberate a

consensus on contentious is

the basis of the recommend

of CoE. The PSC is also ta

with creating a bridge betw

National Assembly and the

CoE. The National Assemb

has the role of approving

the draft constitution with o

without amendments for on

submission to the AttorneyGeneral. The Reference G

is a facilitating player consi

of 30 persons, each represe

an interest group, with the

mandate to facilitate consu


30/96



31/96


Review Proc ess and Roadmap

160

3021

21

21

7

30

30

30

30

2

14 Puof

NotificaRefere

Referendum

Comm ittee to co

The AG to p ub lish the Dr

The National Assem bly to app

Then PSC to table the rep ort to the

PSC to reac h an agreement on the Drareview the same and resubm it to PSC

Committee to present Draft to PSC

Consideration of views of the p ublic and integ ra

the draft and the reportCom mittee to pub lish its report and Harmonized Draft Cpub lic views on the sam e

Consultations with Referenc e Group

Thematic consultations on c ontentious issues

Identification of c ontentious and issues ag reed upon


32/96


The Found ation o f the Proposed c onstitution

The basis of the Proposed Constitution is derived from

the objects of reviewing the current Kenyan

constitution. These includ provisions

that:

guarantee peace, national unity and

the integrity of the Republic of

Kenya.

establish a free and

democratic system of

government that guarantees

good governance,

constitutionalism, rule of

law, human rights, gender

equity and equality, and

affirmative action.

promote peoples parti

elections, exercise of pmanagement of public

respect ethnic and regi

ensure provision of ba

promote and facilitate

cooperation.

Based on the above object

founded on the following p

1. All sovereign power beKenya, exercisable at t

of government and on

Constitution.

2. The people may exerci

directly or through the

The ProposedConstitution

reassures me of

continued peace, an

K A TI B A M PY A K EN Y A M O J A H


33/96


4. Authority under this Constitution is delegated to the

National Executive, Parliament, the Judiciary anddevolved governments.

5. Every person has an obligation to respect, uphold

and defend the Constitution.

6. The constitution provides for national values and

principles of governance which include:

patriotism, national unity, sharing and devolution

of power, the rule of law, democracy and

participation of the people.

human dignity, equity, social justice, inclusiveness,

equality, human rights, non-discrimination and

protection of the marginalized.

good governance, integrity, transparency and

accountability; and sustainable development.

protection of fundamental freedoms and human

Framework of the Prop

Constitution


supreme law into two broa

First, it deals with defining

as a people, our sovereignty

citizenship, individual right

how the individuals are to r

to the governing institution

and have access to natural

resources.

Secondly, it deals with how

needs of Kenyans are fulfil

It lays down a leadership an

integrity code to enable pub

institutions to work in the


34/96

Provisions of the Proposed Const

K A TI B A M PY A K EN Y A M O J A H


35/96


Citizenship

Land

The Bill of Rights

Elections

Political Parties

Establishment of Parliament

The Jud ic ia

Funding fo

Governme

Leadership

County Go

Commissio

Offic es



36/96


As a Kenyancitizen by birth,

I will not lose mycitizenship if I

acquire citizenship

Citizenship

The Proposed Constitution recognizes the following categories of

1. By b irth

Applies to:

persons born of either Kenyan mother or father.

a child found in Kenya, who appears to be less than 8 years a

parentage.

restoration of citizenship on application by a Kenyan by birth

a Kenyan.

2. By Reg istra tion

Applies to:



37/96




38/96

Land

All land in Kenya collectively belongs to the

people of Kenya as a nation, as communities

and as individuals. Land is classified as

public, community or private.

Ownership and /or use of land is based on the following

principles:

equitable access to land.

security of land rights.

sustainable and productive management of land

resources.

encouragement of com

disputes through recogninitiatives consistent wit

Pub lic land

Public land includes: land not set aside for an

land set aside for public

occupied by the State o

land transferred to the

reversion or surrender;

land to which no indivi

ownership is traceable

land which no heir can



39/96

all rivers, lakes and other water bodies.

the territorial sea, the exclusive economic zone andthe sea bed.

the continental shelf.

all land between the high and low water marks.

any other land declared to be public land byan Act of Parliament.

Comm unity land

Community land consists of:

land registered in the name of group

representatives.

land transferred to a specific

community.

any other land declared to be

land th

heldspec

com

or s

anc

trad

gath

held

gov

any

the

Any unregi

be held in t

on behalf o

it is held.

The Proposed

Constitution



40/96

Priva te land

Private land consists of:

registered land held by any person under

freehold tenure.

land held by any person under leasehold

tenure.

any other land declared private land under

an Act of Parliament.

Legisla tion on land

Parliament is mandated to make legislation to:

revise, consolidate and rationalise existing

land laws.

revise sectoral land use laws.

enact legislation to:

prescribe minimuacreages in respec

regulate the man

converted from o

regulate the reco

of matrimonial pthe matrimonial h

termination of m

protect, conserve

land.

enable the review

public land.

protect the depen

holding interests i

interests of spous

Because of anew constitution,

I can now dream

of owning land

privately without



41/96



42/96

The Bill of Rights

Rights belong to individuals and are not

granted by the State. Human rights are

entitlements that human beings have.

The purpose of recognising and protecting humanrights and fundamental freedoms is:

to preserve the dignity of individuals andcommunities.

to promote social justice.

to allow for the realisation of the potential of allhuman beings.

to show that it is the duty of the State and everyState organ and state officers (together sometimes referredto as duty bearers) to observe, respect, protect andpromote fundamental freedom and individual rights.

to ens re that e er indi id al in the societ is

Your rights in the Co nstitu

The right to life

The right to e qua lity

and to b e free from

discrimination.

Rights of the family

Huma n d ignity

The right to freed om and

sec urity of the p erson

Free dom from slave ry

The right to privac y

Rights to foo d , wa ter,health c are, ed uca tion,

housing a nd soc ial sec urity

There are a lso spec ial provision

Women

Y l



43/96



44/96

Elections

General elections are to be conducted every

five years on second Tuesday of August

for all the elective positions in the country.

elective positions are President, Deputy

President, MPs, Senators, governors and

members of county assemblies.

In order to participate in the elections a person has to

register as a voter.

To register as a voter, a person must:

be a citizen of 18 years or above.

be of sound mind.

allows independent candid

in elections. For one to quaindependent candidate, the

must not to be a member o

political party or must not h

a member of any party for

three months before the da

the election.

The boundaries for all the

electoral areas are to be

drawn by an Independen

Electoral and Boundari

Commission (IEBC). Th

commission is responsible f

the continuous registrat

of citizens as voters.

the regular revision of t



45/96

the settlement of electoral disputes other than

petitions. the registration of candidates for election.

voter education.

the facilitation of the observation, monitoring and

evaluation of elections.

the regulation of the amount of money that may be

spent by or on behalf of a candidate or party in any

election.

the development of a c

and parties contesting e monitoring compliance

supervising referenda a

body or office establishe

review the number, nam

constituencies at interva



46/96

Politica l Parties

The new Constitution allows political parties to be

formed so long as they:

have a national character.

have a democratically elected governing body.

promote and uphold national unity.

abide by the democratic practices through regular,

fair and free elections within the party.

respect the right of all persons to participate in

the political process, including minorities and

marginalised groups.

respect and promote human rights and fundamental

freedoms, gender equality and equity.

promote the rule of law.

engage in or encourage

of its members, supporperson.

establish or maintain a

similar organisations.

engage in bribery or ot

accept or use public res

or its candidates in elec



47/96

Arms of Government

Parliament

Parliament is established and consists of two Houses; the

National Assembly and the Senate.

Nationa l Assembly

Consists of:

two hundred and ninety members elected by the

registered voters of every constituency.

forty-seven women each elected by the registered

voters of the counties.

twelve members nominated by parliamentary

political parties according to their proportion of

members of the National Assembly, to represent

The National Assembly rep

at the constituencies and thinterests. Its functions are t

make national laws.

determine the allocatio

revenue.

approve funds for expen

national government.

exercise oversight over n

revenue and national ex

review the conduct in oexecutive.

approve declarations of

extensions of states of e

appove appointments m



48/96

A two chamber

The Sena te

Consists of:

forty-seven members each elected by the

registered voters of the counties.

sixteen women members nominated by

political parties according to their proportionof members of the Senate.

two members, one man and one woman,

representing the youth.

two members, one man and one woman,

representing persons with disabilities.

the Speaker, who shall be an ex

officio member.

The Senate:

participates in

the counties lev

determines the

revenue among

oversees nation

county governm

participates in

Parliament procee

are open to the pu

in English, Kiswah

quorum of ParliamNational Assembly

Senate.



49/96

The Exec utive

The national executive of the Republic

comprises the President, the Deputy President,

and the Cabinet.

The President:

is the Head of State and Government.

is the Commander-in-Chief of the Kenya Defence

Forces.

is the chairperson of the National Security Council.

nominates, with the approval of the National

Principal Secretari

High Commissionediplomatic and cons

chairs Cabinet meeting

directs and co-ordinate

of Ministries and goverdepartments.

receives foreign diplom

consular representatives

confers honours in the n

the people and the Rep

declares a state of emer

with the approval of

Parliament, may declare



50/96

Before I cast my

Election of the President

The President is to be elected by registered voters in a

general election for a term of 5 years and, if re-elected,

can serve for another term of 5 years.

A person is qualified to be nominated as a

presidential candidate if she/he:

is a citizen by birth.

is qualified to stand for election as a member of

Parliament.

is nominated by a political party, or is anindependent candidate.

is nominated by not fewer than two

thousand voters from more than half

of the counties.

A candidate only wins a pr

receives:

more than half of all th

at least twenty-five per

more than half of the c

In case no candidate is

held within the next th

candidates. The result

candidate must be decl

has to be sworn in p

a Tuesday, 14 days a

If the President-elec

winner but b

Deputy Pres

acting Presid



51/96

presidential election will be conducted within sixty

days.

When in office, the President cannot be sued but

Parliament can institute removal proceedings if

there are questions to do with the Presidents health,

violation of the countrys laws or gross misconduct.

Vac ancy in the offic e of President

When the office of President becomes vacant , the

Deputy President will assume office as President for

the remaining period.

Dep uty President

The Deputy President is the principal assistant of

the President and deputizes him/her. He/she is not

The Ca b inet

The Cabinet is appointed wiapproval of the National Asse

may be dismissed by the Pres

President chairs the Cabinet.

of:

the Deputy President;

the Attorney-General; an

not fewer than fourteen

and not more than twenty

two Cabinet Secretaries

(equivalent of CabinetMinisters). A Cabinet

Secretary cannot be a

Member of Parliament.



52/96



53/96

Sec reta ry to the Ca b inet

There will be a Secretary to the Cabinet, whosefunctions will:

be in charge of the Cabinet office.

be responsible for arranging the business, and

keeping minutes of the Cabinet.

convey decisions of the Cabinet to the appropriate

persons or authorities.

have other functions as directed

by the Cabinet.

Princ ipa l Sec reta ries

These are the equivalent of the

current Permanent Secretaries.

They are in charge

Attorney-General

The Attorney General:

is the principal legal ad

represents the national

any other legal proceed

performs any other functhe land.

has authority to appear

any civil proceedings.

promotes, protects and

defends public interests

Direc to r of Pub lic Pros

The office of Director of P

t bli h d t l f



54/96

institute and undertake criminal proceedings against any person before any

court of law.

take over and continue with any criminal proceedings commenced in any

court by any person or authority, with the permission of the person or

authority.

discontinue at any stage before judgment is delivered of any criminal

proceedings with the permission of the court.

a Mpya, K A TI B A M PY A , K EN Y A M O J A H


55/96

The Jud ic ia ry

The Judiciary consists of

four levels of courts namely:

the Supreme Court, the Court

of Appeal, the High Court

and the subordinate courts.

It is headed by the Chief

Justice and a Deputy Chief

Justice. It has judges of thesuperior courts, magistrates,

other judicial officers and staff.

There is a Chief Registrar of

the Judiciary who is the chief

Suprem e Court

The Supreme Court consists of the ChPresident of the court, the Deputy Chie

function of the Supreme Court is to:

hear and determine disputes rela

President of the Republic.

hear and determine appeals from

other court or tribunal.

if required, give an advisory opi

county government.

The judges are appointed from recomm

expanded and independent Judicial Ser

Justice and the Deputy Chief Justice are

Assembly. Other than the Chief Justice,

retirement at the age of seventy years o



56/96

Note:

Court of App ea l

The Court of Appeal consists of up to 12 judges, oneof whom is elected as the President of the Court by

the judges themselves. The Court of Appeal hears and

determines appeals from the High Court and any other

court or tribunal, as prescribed by an Act of Parliament.

High Court

The number of High Court judges is set by an Act of

Parliament. On appointment, the judges are to elect

from themselves, a Principal Judge of the High Court.

The High Court will deal with:

criminal and civil matters.

matters that relate to individual rights.

appeals from a decision of a tribunal.

any matter relating to th

between the levels of go

supervising the subordin

Subordinate courts

The subordinate courts are

the Magistrates courts.

the Kadhis courts.

the Courts Martial.

any other court or local

established by an Act of



57/96

CHIEF JUSTICESUPREME COURT

COURT OF APPEAL

HIGH COURT SPECIAL COURTS

e.g. on land , labo ur, environment

Structure of the Judiciary

SUBORDINAT E COUR TS



58/96

Fund ing for the Nationa l Government Parliament may authoto impose any other t

that are due to county

estimates and expend

Parliament.

Expend iture b efo re

The National Assemb

withdrawal of money

the total amount in th

the Consolidated Fun

appropriation process

Supp lem enta ry app

The national governm

has not been allocated

any purpose is insuffic

All money raised and received by or on

behalf of the national government will be

paid into a Consolidated Fund.

The ma in sourc es of na tiona l revenue a re:

income tax;

value-added tax;

customs duties and other duties on import and

export goods;

excise tax;



59/96



60/96

Financ ia l c ontrol

Parliament will make a law that: provides for the establishment, functions and

responsibilities of the national Treasury.

ensures both expenditure control and transparency

in all governments and establish mechanisms to

ensure their implementation. enforces the keeping offinancial records and

auditing of accounts for securing efficient and

transparent fiscal management.

prescribes a framework within which policies

relating to procurement and asset disposal will beimplemented.

The accounting officer of a national public entity is

answerable to the National Assembly for its financial

management, and the accounting officer of a county

Controller of Budget

The Controller of Budget of the budgets of both the

governments. The control

all public funds.

Auditor-General

The Auditor-Generals offi

annual accounts of:

the national and count

all courts.

every Commission and

the Senate and the cou

political parties funded

the public debt.



61/96

I cexpe

the umeanme baccooffic

Ce ntral Bank of Kenya

The Central Bank of Kenya will formulate monetary policy,promote price stability and issue currency.

The Central Bank of Kenya is independent in the exercise of

its functions.

National Security

National security means the protection against internal and

external threats to Kenyas territorial integrity and sovereignty,

its people, their rights, freedoms, property, peace, stability and

prosperity, and other national interests.

The national security organs are the:

Kenya Defence Forces

National Intelligence Service

S



62/96

47 COUNTI EScounty assemblies

counexecu

NATIONAL GOVERNMENT

NATIONAL LEGISLATIONS/FUNDS/NATIONAL POLICIES/S

Execut ive Par l iament Judic iar

DEVOLV ED GOVERN MENTS



63/96

The national government is in charge of:

National policy and standards.

Economic Planning.

Monetary policy.

Agricultural policy.

Veterinary policy.

Health policy.

Energy policy.

Tourism policy.

Education policy, standards,curricula, examinations and the

granting of university charters.

National statistics.

Labour standards.

Foreign Affairs, Immigration,

citizenship.

Nationa l Government



64/96

Devolved Governments

The devolved system of government is created

with county governments.

Principles of devolved governments

The devolved government will:

promote democratic and accountable exercise of

power.

foster national unity by recognising diversity.

give powers of self-governance to the people and

enhance the participation of the people in the

exercise of the powers of the State.

promote social and eco

provision of services thr

ensure equitable sharin

resources throughout K

facilitate the decentralis

functions and services, f

enhance checks, balancpowers.

The Co unty Gove rnme


governments. This number

of administrative districts a

and Districts Act of 1992.



65/96



66/96

1. Mombasa

2. Kwale

3. Kilifi

4. Tana Rive r

5. Lamu

6. Taita/ Tave ta

7. Garissa

8. Wajir

9. Mandera

13. Tharaka-Nithi

14. Embu

15. Kitui

16. Machakos

17. Makueni

18. Nyandarua

19. Nyeri

20. Kirinyaga

21. Muranga

25. Samburu

26. Trans Nzoia

27. Uasin Gishu

28. Elgeyo Marakwet

29. Nandi

30. Baringo

31. Laikipia

32. Nakuru

33. Narok

Counties


67/96

ReadtheProposed

Constitutionand

JointheFuture



68/96

The structure of county government includes:

County assemblies, county executive committees andcounty public service. The Proposed Constitution

also provides for the sources of funds for the county

governments.

The county governments oversee:

agriculture (crop and animal husbandry).

fisheries.

county health services.

cultural activities.

public entertainment and public amenities.

county transport.

implementation of spec

policies on natural reso

conservation.

county public works an

Boundaries of Counties

The boundaries of a countdrawn and may be altered

resolution:

recommended by an in

commission set up for t

by Parliament, and passed by:

the National Assem

least two thirds of a

Assembly; and



69/96

population density and demographic trends.

physical and human infrastructure.

historical and cultural ties.

cost of administration.

views of the communities affected.

objects of devolution of government.

geographical features.

Co unty Assem b lies

A county assembly consists of:

1. members elected by the registered voters of the

wards in a general election.

2. the number of special seats necessary to ensure that

no more than two-thirds of the membership of the

assembly are of the same gender

The members in 2 and 3 ar

political parties in proporti

election in a particular cou

Func tions of County Ass

The functions include:

making laws for the eff

county government.

exercising oversight ove

committee.

receiving and approvin

managing and expl

and

developing and man

institutions



70/96

Elig ib ility for elec tion to a Co unty Assem b ly

One is eligible if he/she:

is registered as a voter.

satisfies educational, moral and ethical requirements

prescribed by law.

is either:

nominated by a political party; or

an independent candidate supported by at

least five hundred registered voters in the Ward

concerned.

A person is disqualified from being elected a member of

a county assembly if the person:

is a State officer or other public officer.

has at any time within past five years held office

is an undischarged bank

is serving a sentence of months.

has been found in accor

misused or abused a Sta

County Exec utive C om m

The executive authority of

county executive committe

The committee consists of: the county governor an

governor; and

members appointed by

approval of the assemb



71/96

The number of members of the committee should not

exceed:

one-third of the number of members of the county

assembly, if the assembly has less than thirty

members; or

ten, if the assembly has thirty or more

members.

The county governor and the deputy county

governor are the chief executive and deputy

chief executive of the county respectively.

Members of a county executive committeeare accountable to the county governor for

the performance of their functions and

exercise of their powers. If a vacancy

arises in the office of the county governor,

Func tions of c ou

are to:

implement coun

implement, wit

legislation to th

requires.

manage and co

county adminis

prepare propos

consideration b

provide the cou

regular reports county.

County Governo

GovernorNow I can look

for ard to b tt r



72/96

Each candidate for election as county governor will

nominate a person as his/her running mate to be the

deputy governor.

Rem ova l of a C ounty Governor

A county governor may be removed from office on any

of the following grounds:

gross violation of this Constitution or any other law.

there are serious reasons for believing that the

county governor has committed a crime under

national or international law.

abuse of office or gross misconduct.

physical or mental incapacity to perform the

functions of office of county governor.

Staffing o f County Governments

appointing persons to h

and confirming appoin

exercising disciplinary c

persons holding or actin

County Funds/Revenue

The county governments sh

and will further receive a sh

nationally.

Counties have power to rai

property rates.

entertainment taxes.

charges for services.

any other authorised ta

Parliament.



73/96

a half ( )% of annual national revenue as

Equalization Fund to marginalised areas only.

A county government may borrow funds with the

approval of its assembly and a guarantee from the

national government.

On the basis of the division of Revenue Bill passed by

Parliament, each county government will prepare and

adopt its own annual budget and appropriation Bill in

the form, and according to the procedure, prescribed in

an Act of Parliament.

Cities and Urban area s

National legislation shall provide for the governance and

management of the capital city, other cities and urban

areas.

Relationship Between

Governments

Government at either level

perform its functions inassist, support and cons

implement the legislatio

government.

liaise with the other gov

exchanging information

administration, and enh

co-operate in the perfor

may also set up joint co



74/96

Meanwhile:

both governments will make every effort to settledisputes, by means of procedures provided under

national legislation.

invoke national legislation to provide procedures

for settling inter-governmental disputes by

alternative dispute resolution mechanisms, including

negotiation, mediation and arbitration.

pursue similar functions placed before both

governments and perform them separately

consider a function not assigned by this Constitution

or national legislation to a county as a nationalgovernment function or power.

bear in mind that a function of government at one

level may be transferred to a government at another

level by agreement between the governments.

function or exercise

and

the function will rem

transferring governm

National legislation prevail

the national legislation Kenya (norms, standards a

the national legislation

unreasonable action by

is prejudicial to the

or security, nature tocounty; or

impedes the implem

economic policy.

the national legislation



75/96

At th

Meanwhile:

Parliament will provide for intervention by thenational government if a county government:

is unable to perform its functions; or

does not operate afinancial management system

that complies with the requirements prescribed

by national legislation. Such interventionwill require the national government to take

measures that will assist the county government

to resume full responsibility for its functions.

The President may suspend a county government:

in an emergency arising out of internal conflict or

war; or

in any other exceptional circumstances upon

independent investigations by a Commission of

national revenue that is ann

governments (not less than

While doing this, the Senat

National interests.

Public debt and nat



76/96

Performance of county governments.

Fiscal capacity and efficiency of county governments.

Developmental and other needs of the counties.

Economic disparities between counties.

Need for affirmative action.

Flexibility in responding to emergencies.

Predictability of revenue allocation.

Motivation on counties to optimise their capacity in raising

revenue.

The Senate may:

request and consider recommendations from the Commission on

Revenue Allocation.

consult the county governors, the Cabinet Secretary responsible for

finance and any organisation of county governments.

Note:

A co

reven

nati

shal

to th

und

dedu

whe



77/96

Commissions and Independent

Offi

c es

The Commissions and Independent Offices are

established as legal bodies with clear succession

mechanisms and can sue or be sued.

The objects of the Commissions and the Independent

Offices are to:

protect the sovereignty of the people.

secure the observance by all State organs of

democratic values and principles.

promote the rule of law.

The Commission and hold

are to submit reports annu

to Parliament. Every repor

publicized.

The Commissions and Ind

1. The Kenya National H

Commission- (to monitordealing with human rights)

2. The National Land Co

land)

3. The Independent Elect

Commission (To manaboundary reviews)

4. The Parliamentary Serv

parliamentary services and f

5 The J dicial Ser ice Co



78/96

7. The Public Service Commission (Management

of public service including hiring andfiring of public

officers).

8. The Salaries and Remuneration Commission

(set and review the remuneration and benefits of all

State officers).

9. The Teachers Service Commission (register,

hire, deploy and discipline teachers).

10. The National Police Service Commission

(recruitment, appointment and discipline of persons in

the public service).

The Independent Offices are:

the Auditor-General and

the Controller of Budget (see page 58).

identified and recommended fo

appointment in a manner that

national legislation will provide

approved by the National Assem

appointed by the President.

The appointments are to take intoaccount the National Values and t

Principle that the composition of

the commissions and offices reflect

the regional and ethnic diversity of

the people of Kenya. A member o

a Commission, or the holder of an

Independent Office shall be appoi

for a single term of six years and i

not eligible for re-appointment. Th

will however not apply to an ex-offi


79/96

ThinkKatiba,

ThinkKenya



80/96

Leadership and Integrity

Authority assigned to a State officer/

Public officer is a public trust. It is to be

demonstrated by respect for the people, honour

to the nation, dignity to the office and public

confidence in the integrity of the office. The

officers have a responsibility to serve the

people, rather than themselves

Principles of leadership and integrity are:

selection on the basis of personal integrity,

competence and suitability, or election in free and

selfless service based sol

demonstrated by;

honesty in the execu

the declaration of a

conflict with public

accountability to the pu

discipline and commitm

Public servants shall be gui

principles and values:

high standards of profe

efficient, effective and e

responsive, prompt, effe

provision of services.

involvement of the peo



81/96


f i i h i f K di R


82/96

fairness in the representation of Kenyas diverse

communities and:

affording adequate and equal opportunities for

appointment, training and advancement, at all

levels of the public service of men and women,

the members of all ethnic groups, and persons

with disabilities.

Any gift or donation to a State/Public officer on a public

or official occasion is a gift or donation to the Republic

and is to be delivered to the State unless exempted

under an Act of Parliament.

A State officer/Public officer is not allowed to maintain

a bank account outside Kenya except in accordance

with an Act of Parliament;

or seek or accept a personal loan or benefit in

circumstances that compromise the integrity of the State

Restric tion on a c tivities

A full-time State officer is n

gainful employment. Any a

allowed to hold office in a p

In viewthe Prop

Constitu


The referend um


83/96

Part TProc lamation of the

Constitution

From the c urrent to the new

Constitution

Leg islation to be effec ted

Amendment of this

ConstitutionMoving



84/96

A referendum gives citizens a voiceto set the terms of government and standard

by which they would be governed


1 Th R f d lli ti


85/96

1. The Referend um

A referendum can be defined as taking a vote on an

issue of public importance, which requires the citizens

to have a say. The process is not different from voting

in an ordinary election. The main difference between

an election and a referendum is that the latter dwells

on issues while the former focusses on the electionof persons. The referendum is one of the processes

under the Review Act; it will be a means of adopting

a new Constitution. Voting in the referendum will be

conducted on a Yes or No basis.

Cond uc t o f the Referendum

The referendum will be conducted by the Interim

Independent Electoral Commission (IIEC) of Kenya,

between 60-90 days after the publication of the draft

announce polling time.

announce the campaign

publish the results withi

2. Proc lamation

ConstitutionIf a Yes vote is secured, t

will proclaim the Proposed

the Constitution of Kenya.

The date of proclamation wthe effective date (when) t

Constitution will enter in fo

Alternatively, the new const

shall enter in force after the



86/96


3 From the Current to the New All the obligations laws


87/96

3. From the Current to the NewConstitution

If the new Constitution comes into force, it will do

so with the recognition that Kenya would not be

in a constitutional vacuum. It contains transitional

arrangements and time lines that are to be in place for

purposes of transition from the old constitution to a new

one.

Transitiona l Arrangements

The Coalition Government will remain in place

untill the next elections are held in 2012, unless it is

dissolved earlier. If it is dissolved after the effectivedate but before 2012, elections for the county

governments will only be held in 2012.

The next general elections shall be held under the

new Constitution

All the obligations, laws

are until new correspon

effected including legisl

Provincial Administrati

years.

Institutions created by t

will take over current co

offices.

Necessary legislation wi

within 5 years to effect

Leg islat ion

Leg islation in respec t of c ult

Citizenship

Leg islation on c itizenship


Leg islat ion Time period Leg islat ion


88/96

Leg islat ion Time period

to be effected

Land

Kenya Nat iona l Huma n Rights

& Equality Co mm ission One yea r

Comm unity land Five yea rs

Reg ula tion of land use a nd

prop erty Five yea rs

Leg islation on land 18 mo nthsAgreem ents relating to

na tura l resource s Five yea rs

Leg islation reg ard ing environm ent Four yea rs

Leadership

Ethics and anti-c orrup tion com mission One yea r

Leg islat ion on lea dership Two yea rsLeg islation on elec tions One yea r

Elec tora l d isputes One yea r

Independent Electoral and

Bound aries Co mm ission One yea r

Leg islation on politica l pa rties One yea r

Leg islat ion

Executive

Power of mercy

Assump tion o f offic e of pres

Judiciary

System of courts

Remova l from office

Judic iary Fund

Vetting of judg es and ma gis

Devolved Government

Spe aker of a c ounty assemb

Urban area s and c ities

Support for county go vernmRemova l of a c ounty go ver

Vac ation of office o f memb

c ounty assembly

Public pa rtic ipa tion a nd cou

assemb ly pow ers, p rivileg es


Leg islat ion Time period 4 Amend ment o


89/96

Leg islat ion Time period

to be effected

Public Finance

Reve nue Fund s for county

go vernments 18 mo nths

Continge nc ies Fund One yea r

Loan guarantees by national

go vernment One year

Financ ial c ont rol Two yea rsAc counts and audit of public entities Four yea rs

Proc ureme nt of pub lic go od s

and services Four years

Public Servic e

Values and p rinciples of pub lic service Four yea rs

National Security

Nat iona l sec urity orga ns Two yea rs

Comm and o f the National

Police Service Two yea rs

General

4. Amend ment oConstitution

There are two ways in whic

amended:

1. Parliament and Refe

For the following provision

must approve, following wh

held:

supremacy of this Cons

territory of Kenya. sovereignty of the peop

national values and prin

Bill of Rights.


The following provisions prevail: 2 Amend ment by po p


90/96

The following provisions prevail:

The ob jec ts, princ ip les and struc ture of devo lved

government:

A proposed amendment from Parliament is approved by

a referendum only if:

at least twenty per cent of the registered voters in

each of at least half of the total number of counties

vote in the referendum.

the amendment is supported by a simple majority of

the citizens voting in the referendum.

2. Amend ment by po p

An amendment to the Conbe proposed by a popular i

by at least one million regis

A popular initiative for an a

to the Constitution may be

form of a general suggestio

a formulated draft Bill pres

to Parliament by IEBC from

petitioning entities.



91/96


92/96

rides on the present and anticipates prospects

A good Constitution acknowledges the past,

the future holds for the majority.

Notes


93/96

otes

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

Notes


94/96

__________________________________________________________________________

__________________________________________________________________________

__________________________________________________________________________

__________________________________________________________________________

__________________________________________________________________________

__________________________________________________________________________

__________________________________________________________________________

__________________________________________________________________________

__________________________________________________________________________

__________________________________________________________________________


95/96

COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEWDelta House Waiyaki Way, Westlands

P.O. Box 8703 00200 Nairob i

Tel: 020 444 32 14/ 15/ 16, 252 7152; Fax: 020 444 32 11/ 252 6959

info@co ekenya.g o.ke


96/96

www.coekenya.go.ke

kenyas proposed draft constituiton 2010

Documents