Background on the Drafting process for the Constitution of Kenya 2010
The Constitution of Kenya 2010 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 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. The new Constitution of Kenya 2010 was approved by 67% of Kenyan voters.
The key changes proposed by the new Constitution of Kenya 2010 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.
- Legislature – the composition, and representation of the people. An introduction of an upper house – the Senate.
- The Judiciary – qualifications to hold office and appointment.
- Devolution Only two levels of Government: National and Counties.
- Citizenship – among other issues, gender discrimination was ended, and citizens who acquire foreign citizenship will not lose their Kenyan citizenship.
- 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 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).
- 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 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.
There will be three superior courts: – Supreme Court – the 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.
- 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 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 the distribution of functions between the two levels of government under the Fourth Schedule and also as a result of Article 192 which gives the president the power to suspend a county government under certain conditions.
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).
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 criticized, however, for not providing sufficient protection against statelessness for children or adults.
- 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 the application, to regain Kenyan citizenship (Art 14(5)).
Source Constitution of Kenya 2010: Wikipedia: The Free Encyclopedia. Wikimedia Foundation