CONSTITUTION OF KENYA REVIEW COMMISSIONCKRC

Verbatim Report Of

PLENARY MEETING HELD AT LEISURE LODGE, MOMBASA

August 30, 2002

CONSTITUTION OF KENYA REVIEW COMMISSIONPLENARY MEETING HELD ON AUGUST 30, 2002 AT LEISURE LODGE

MOMBASA

Present 1. Prof. Yash Pal Ghai - Chairman2. Prof. Ida Salim - Vice Chairperson

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3. Com. Abida Ali - Vice Chairperson 4. PLO Lumumba - Secretary5. Dr. A.O. Adede Commissioner6. Prof. Okoth-Ogendo “7. Hon. Phoebe Asiyo. “8. Dr. Charles Maranga. “9. Mr. Domiziano Ratanya. “

10. Mr. Ibrahim Lethome. “11. Dr. Mohammed Swazuri. “12. Bishop Bernard Njoroge. “13. Dr. Abdirizak Nunow “14. Dr. Githu Muigai “15. Dr. Mosonik arap Korir. “16. Mr. Mutakha Kangu. “17. Pst. Zablon Ayonga. “18. Ms. Nancy Baraza. “19. Ms. Salome Muigai. “20. Prof. Wanjiku Kabira. “21. Mr. Zein Abubakar Zein. “22. Mr. Isaac Lenaola. “23. Mr. Isaack Hassan. “24. Mrs. Alice Yano. “25. Mr. Riunga Raiji “

Drafts Team:

Prof. CrabbeMargaret NziokaMr. George Nagota

Verbatim Recorder - Hellen Kanyora

Meeting was called to order at 8.30 a.m.

Prof. Yash Pal Ghai: I would like to call the meeting to order please. I would like to ask

Commissioner Zein to say prayers for us before we begin the formal business.

Com. Zein: (Prayer) In the name of God most Gracious most Merciful, we commit this

meeting to serving our people and we ask you to guide us and give us wisdom. We ask this in

your name. Amen.

Prof. Yash Pal Ghai: Thank you. We have distributed the draft of the procedure rules for

decision-making at Commissions meetings. This document was prepared by Zein in order to

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enable us to work out how we would conduct our business especially in relation to the adoption

of our recommendations. The paper I believe has been circulated just now, we also have for this

morning’s business the presentation of the report by Committee I and I wonder whether the

Commissioners would like to dispose of the rules of procedure or whether you think we can

come back to this later. Lets have meanwhile the presentation by Dr. Githu Muigai.

THEMATIC TASK FORCE GROUP I

Com. Dr. Githu Muigai - Convenor

Com. Zein Abubakar Member

Com. Pastor Ayonga, “

Com. Kavetsa Adagala “

Com. Dr. Githu Muigai: Mr. Chairman the first committee consists of myself as Convenor,

Pastor Ayonga as member, Zein Abubakar as member and Kavetsa Adagala as member. The

draft you have in front of you is as a result of work that we have done over the last couple of

weeks with the assistance of Ms. Sylvia Nyagah who is distributing the papers there as our

Researcher. In our judgment, she has done a very good job.

I want to be very very fast in my presentation so that we can take the comments. First Mr.

Chairman I want to place it on record that we have prepared this report on the basis of guidelines

that were issued by Professor Okoth-Ogendo and approved by the Plenary. I am sure a copy has

been availed to everybody. This guidelines required us to identify each issue, the mandate of the

Commission in respect of each issue as set out in the Act, to isolate the several issues arising

under any one theme or topic, to access public opinion regarding those issues as we could from

either the written memoranda or the oral presentations or any other means through which the

public expressed its views.

Further Mr. Chairman, to compare how this kind of issue has been dealt with in comparative

Constitutions and further Mr. Chairman, to draw conclusions as to what we believe and that

ought to be contained in the final report and build on the recommendations we would make on

that.

Mr. Chairman, the document we have prepared therefore targets two aspects of our work. One, is

we hope that this report forms a basis, a framework from which we can begin to flesh out the

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report on chapter six, on the constitutive process. It was our hope then that we have identified the

issues correctly, we have treated them correctly in terms of the problems that they raise and that

we have evaluated correctly the public responses to those issues and that subject to the debate at

plenary, we will then be able to flesh out this report, so that it can move to the next stage where

the editorial team may be able either to request us for specific material to support any statements

we may have made.

The second part probably more important. Maybe my particular bias, was our eye on what would

go into the Bill and probably our report is more eloquent on recommendations that will go into

the Bill than it is on the explanations that will go to the report and I think that is an inadequacy

that we are acutely aware of already and one that we intend in the course of the day today and

tomorrow and Sunday, I Mr. Chairman in my capacity of the Chair in that area, having degreed

that we shall be working tomorrow and Sunday. Of course, there is a dissenter in my ranks but I

could deal with him Mr. Chairman later!

Mr. Chairman on a more serious note, the approach that we took in our committee, a consensus

actually, was that we should try to present our findings and our elucidation of the various matter

in a non academic way, in a manner that was not very didactic and would isolate the issues in a

simple straight forward manner and give it a simple straight forward treatment. I have spoken to

several Commissioners who have told me that that may have its own shortcomings and I

appreciate that and that probably we ought to bring some measure of theoretical treatment and I

suppose we will be going back to that at some point.

We remain committed to an approach that at this stage is able to isolate what the issues are and

what the public responses to them were, what comparative experiences to those issues are and to

make tentative and probably in our view, non complicated proposals.

Now, we had one slight difficulty in several areas and this was the problem of ascertaining

public opinion in respect of some aspects of the problems and the issues that we dealt with and

Mr. Chairman we have worked quite well with Walter and towards the end of our preparation of

the report I thought we were just beginning to get through to some of the material that we needed

and probably if we have to re-visit some of the issues, I think now more material that previously

available is available. Finally therefore Mr. Chairman, we feel in our own judgment that this

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debate at plenary will help us to identify gaps either in our commentary or in the treatment of

certain issues and therefore will give us an opportunity to go and flesh out those parts that form

part of the report or reconsider issues that we may have treated less exhaustively and which

ought to find a place in the draft itself and which probably in our lack of judgment in the matter

have not treated it as it should.

This now Mr. Chairman, because I intend to take 10 minutes only, brings me to the subject of the

report. Ladies and gentlemen if you will be kind enough to open the report I will take you

through it very quickly indeed. At page one, we addressed the problem of the Preamble. This is

one area where we have common ground. Whereas the Preamble was not one of the issues that

we were mandated under the Statute to consider, it is one of the issues to which that we put to the

public and the public was very clear overwhelmingly in support of the Preamble been based in

the new Constitution. So if you will look at say Page 3 and 4, we have a treatment of some of the

issues that came up from the public. Again, I think this is a problem that we will have to deal

with for the rest of the presentations. It is not quite easy for one to determine what sample is a

representative sample especially if me and the Pastor you were not trained in qualitative

methods, or quantitative methods for that matter. So we did our own random sampling and that

is what we saw, what appears there.

Now, I think the most important part, is to take you to page 8. Our intention here is not in any

way to bind the hand of the draftsman, but it is also to ensure that the draftsman does not work

without specific directions and we have a short preamble which we believe in our judgment,

conforms with the proposals that we got from the Kenyan people; “We the people of Kenya

trusting in God….” We debated this issue of the place of God at great length and I must say

ladies and gentlemen, at some point it threatened to destroy our consensus on what the preamble

would look like. Happily at the end, we settled on this very important place for God. At some

point we considered the possibility of starting with trusting in God and we thought that let us

first assemble ourselves as the people of Kenya then trust in God and this is now how it looks.

This prosperous X 2. One prosperous should be cancelled. We felt that really a truly prosperous

is one in which people will find their happiness somehow. So, I don’t want to say more about

that, except at the bottom, it was thought again that we should invoke the blessings of the

Almighty on the Republic and some of you may have comments about that at a later stage.

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Page 9, the interpretation of the Constitution. This again for us was a very controversial matter.

At some point we removed it. We did not believe that it would advance much to have guidelines

on the interpretation. I had a discussion with Mr. Ndoria Gicheru, Mr. Nyegenye, I sought their

advice on whether these type of provisions are common and I valued what they told me. We

revisited the matter with my team, and we formed the impression that probably a general

provision of the nature we have put at 2-4 would not be harmful.

In our debate, we were convinced that the reason judges interpret the Constitution wrongly, has

nothing to do with the lack of guidelines in the Constitution and however, we were of the view

that probably if we were to circumscribe the discretion of judges on how they can make a

Constitutional interpretation we should leave it in fairly broad terms and so on and maybe you

would want to comment on that later.

We are asked to discuss status of Constitutional rights and duties and obligations. We discussed

that great length. We so no necessity whatsoever to make any proposals regarding that. So

quickly moving on, we went to Directive Principles of State Policy and that the top of page 10,

we consider our mandate and page 11 and 12 we look at what generally Directive Principles do,

then we sampled several from several countries and we summarized by saying at page 16 that –

sorry first we took the view that it would be useful to have Directive Principles of State Policy

in our Constitution. If you look at page 27, we thought that of all the things we heard from the

people of Kenya, the people expressed the wish that the Constitution should secure for all

citizens, national liberty, equality before the law, opportunities for self improvement, equal

access to State resources and personal and group security.

Further, we thought therefore, that what the people were saying is that we should have a State

that respects the rule of law, that respects democracy and democratic institutions, that protects

freedoms and rights of citizens and therefore if you go to page 28, we thought we would

recognize the sovereignty of the people of Kenya and we would secure the Kenyan flag, the

National Anthem, the principles of Constitutionalism and the rule of law and various other

directives that are important to reinforce the kind of democracy that we want to build.

29, sovereignty of the people. Again here we considered the mandate under the Review Act.

This as most of us will recall has been a fairly controversial issue. In our group we thought that

whereas there was great political value in restating the sovereignty of the people, there wasn’t

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much legal value and we thought that a short, crisp provision capturing that sovereignty is to be

preferred to long winded repetitive and pious platitudes papering the entire document. So, at

page 32 we recommend what we thought is an appropriate subject to the draftsmen.

Constitutional supremacy. Again on this we had complete common understanding on where we

should go. The present Constitution already enjoys a supremacy clause. We found that that is

important except for this and I will refer you to page 36. We thought that – and it is inelegantly

State d at page 36 and maybe the draftsmen will want to assist if we approve this as a model. We

thought that there were parts of the Constitution that we should secure or rather entrench. We

should entrench certain parts of the Constitution against unilateral amendments with a transient

Parliamentary majority but if you look at page 36 (2), 6.7 item 2, this Constitution should only be

amended by at least 75% of the Members of Parliament provided that the following sections are

only amendable by way of Referendum. I think that maybe a little confusing. We do not mean

that it will be amended by a referendum, we mean by Parliament after reference to a referendum.

So we would like to entrench in the Constitution, the preamble, the provisions on citizenship, the

Directive Principles of State Policy, the national territory of Kenya, the principle of the

separation of powers – really here our concern is judicial independence, but maybe we want to

entrench the entire principle. We want to entrench the Bill of Rights and we want to entrench this

provision on entrenchment.

Those who are familiar with the independent Constitution will know that the first amendment in

1964 was an amendment that went to amend the provision on amendment and removed the

provision on entrenchment. So we want to entrench the provision from unilateral amendment.

The legal system, page 37 and Mr. Chairman quickly on my way to winding up. Our

understanding on this, I hope it is the correct understanding, the longer title of our mandate was

the legal system and – Zein? Applicable laws and we had some few discussions on this and

could not quite agree on that aspect so we retained it as the legal system. Our understanding was

that historically in this country, what constitutes the law of Kenya has been contained in the

Judicature Act and that has had its own benefits, but it has its own draw backs. One of which is

that Constitutionally recognized regimes of law can be compromised by amendments to the

Judicature Act including unilateral amendments to that. So what we thought we would want to

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capture is the provision that sets out in some detail and secures within the Constitution, the law

of Kenya.

If you look at page 39, we went through this and there is a very controversial issue there which

we could not resolve, maybe this plenary can resolve it. First we set out what we thought

constitutes the law of Kenya. The Constitution, the Acts of Parliament, Customary Law, Islamic

law, Hindu law, Statutory Community law, International Law – that was a bit of a dicey thing.

Then when we finished, the question arose as to whether this was the hierarchy of law. Because a

hierarchy then has its own problems. Well, in one sense of subordinating some laws to others.

There can be no doubt that the Constitution is a superior law in my judgments, in my private

judgment. Is it supreme law? Neither have I any doubt in my judgment that International Law

would create an obligation for us to ensure that domestic law is consistent with our international

obligation.

This position is not shared and therefore it does not represent the position of my committee. So

we put that caveat, advised by non other than the Right Honourable Patrick Lumumba. He said;

“Well in Tanzania this is how they resolve these matters. They say this is not a hierarchy” and so

we will have to go back to this question of whether if we create this kind of table or sources, that

table must be arranged on the basis of hierarchy.

There is another issue that we did not take into account. That Professor Okoth-Ogendo has

mentioned, which is - - Hang on! The Common Law and Doctrines of Equity appear to have

disappeared! Have they disappeared? Sylvia? Please bring them back they should be here and

it is where I want to make the comment.

Professor Okoth-Ogendo’s view, which I find intellectually very attractive but I have my serious

doubts that would work well here. Is that why don’t we think now of developing a Common Law

of Kenya as opposed to remaining tied to the Common Law of England and the doctrine law of

equity and maybe that is something we can debate in the course of your reactions.

Nationhood. Well, again this is a matter where in my judgment, in our judgment, Kenyans felt

strongly about several things. They felt all of them should get Constitutional expression, that

they will feel better, they will love each other more, be more patriotic to their country, defend

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their Constitution better, if the Constitution gave them the apparatus that would cement their

nationhood. So, we considered that and if you look at page 42, we came up with a certain

number of ideas. First, I don’t think that the Republic and the Sovereign State raise any new

issues, but that Nairobi should be the capital of Kenya would come as a surprising suggestion.

But we debated that at some length and we felt that that is what the people of Kenya has said and

their argument was that “we want some certainty about the future of the nation and we want to

know where what is” therefore they suggest that.

The official languages, we were able to agree would be Kiswahili and English. The order there

not been accidental. Another omission that should be here and is not is that Kiswahili shall be the

National language. That again was another suggestion. Kiswahili shall be the national language

and I think we made debate later on. Difference between official languages and national

languages and so on. We were very happy and very united on this point, that Kenya shall not

adopt a State religion. So, I am happy to be the bearer of good news!

The National Anthem we agreed should be defined and placed in a schedule in the Constitution.

Again that comes from our historical experience. People felt that we have been with the

National Anthem for such a long time, it is too late for us to learn a new one!

National symbols. Again that is uncontroversial. That they should be secured in schedules of the

Constitution. That is for the draftsmen. The national oath. I assume these are Oaths for those

assuming High Office and so on. Again number nine, a matter that was very very contentious in

the provinces where we visited. Kenyans wanted National Holidays identified in a schedule of

the Constitution and they felt that there should be an Act of Parliament defining which are the

official national holidays and infact Kenyans said they wanted most of those already in place

abolished so that we can work some more and rest later.

Language and culture. Kenyans felt that government must promote national languages in schools

and cultural centers and again we thought to capture that in nationhood and I think I should read

that in its entirety. That there should be a people’s Commission, which shall promote the

recognition of all Kenyan communities, promote peace, co-existence, respect for all Kenyan

communities, promote civilization and cultural rites for all Kenyans, including linguistic,

religious and group rites.

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Citizenship. Again this is a matter – I am on page 40 now Mr. Chairman. 43, I am advised.

Thank you sir. Again Mr. Chairman, we found this to be a fairly non-controversial issue. In our

group we were satisfied that Kenyans had spoken very clearly on this question. They wanted a

number of things. If you go to page 53, first of all, Kenyans did not wish to have any

discrimination on the conferment of citizenship based on sex. They wanted men and women

equally to be able to confer citizenship. We are happy to agree with the Kenyan people.

Secondly, Kenyans told us that they wanted dual citizenship to be considered. In my group we

run through several times and the mechanisms of it were not quite clear to us, but that is happily

why we have the draftsmen here with us and we hope we will be able to work an acceptable

format.

The other thing that Kenyans felt was that the citizenship process in this country especially

citizenship by naturalization is riddled with corruption and that the people who manage the

process ought to be above reproach. They should be like Patrick would say, “Like Caesar’s wife”

and therefore Kenyans suggested that there should be a special board for that purpose and we

took that into account.

There was one aspect of the recommendations of Kenyans that we dealt with. That was equal

treatment of citizens. This is a double edged sword because Kenyans thought that there can be no

Constitutional justification for the unequal treatment of genuinely Kenyan citizens and here

Kenyans were thinking about the Somali cards for example, the screening card and so on, and so

they felt that we ought to insert in the Constitution a protection against that kind of thing. But

there was a secondary issue that arose which for my part I am not sure that there is consensus.

They are Kenyans who said, once you become a citizen of Kenya, your citizenship should never

be revoked and we debated that in our group and we thought that that actually is not a very sound

proposal because in our understanding that we will take legal advice of this . where a person is a

citizen by naturalization, if he obtained the citizenship by fraud or mis-representation or by any

other unlawful means, surely it must be subject to revocation and we thought that this is the

problem of drafting. The draftsmen will know how to capture the first anxiety while addressing

the second one.

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So we made some proposal sir, at page 54. We think everybody born in Kenya should be a

citizen of Kenya by birth and we also think that anybody born of a Kenyan parent should be a

Kenyan. Whether the Kenyan is the mother or the father, and we went through naturalization and

marriage.

Now, we had a little problem Mr. Chairman with the question of marriage. Somebody asked and

I thought it was a legitimate question. Does one become a Kenyan citizen by marrying a Kenyan

citizen as at the date of the marriage? Or should we have a period of waiting? And in our team

we were of the view Mr. Chairman, that marriage is not what it used to be. There are many

marriages that don’t last 6 months, so that probably we don’t want to clog our citizenship register

without giving marriages an opportunity to work and again we would like to work with the

draftsman in that respect so that we get a happy medium.

We talked about adoption and legitimation and that I think doesn’t create problems. We talked

about children lost in Kenya and we said that we want this country to be a home for all people

who have no homes. But again Mr. Chairman it is a generous thing for us to do, but it is also

important that it should be structured so that Kenya does not also become this huge “Ghetto” and

I use that word with respect.

There was a suggestion that we should give refugees a special right of becoming citizens of

Kenya. We did not think that that was necessary. We felt that we should give all aliens a right to

be citizens of Kenya after a requisite period and satisfying several criteria’s and therefore we

thought refugees would come along with them as well.

Finally Mr. Chairman, we thought about our territory, a matter that gave us great anxiety because

we were advised that the territory of Kenya has been annexed by our neighbours. We argued at

great lengths Mr. Chairman, about how useful it is to define our own boundary in our

Constitution. The preponderance of legal opinion in our group was that that would not solve the

legal dispute but the commonsensical position also was that it would bring our neighbours to the

negotiating table, and so we decided to do that. That we should define our external territory.

Mr. Chairman I want to clarify here that we are concerned here with external boundaries. The

people of Kenya were concerned with two problems. They told us about internal boundaries.

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There are many Kenyans who wanted us to review the internal boundaries. I do not think that as

defined that is at the lookout of our group. Internal boundaries are not our problem. if there are

anybody’s problem Mr. Chairman, we believe they will be for those dealing with devolution of

power and local government.

As to external boundaries, we decided that we should have a proper map of Kenya prepared with

all the geographical point and we shall insert it as a schedule of the Constitution and one day if

we are lucky and our territory expends, then we shall re-draw the map and have a new one!

Finally Mr. Chairman, defense and national security. This is a matter where we were only able to

access the full reports of the Department of Defense and the Office of the President only

yesterday. So we have revisited the matter. In the draft that is now in the computer, we have

made some notes and made some recommendations about this and we will probably subject to

your directions Mr. Chairman will bring that back for consideration.

Let me just finalize by saying, we do not in my committee consider that this is an exhaustive

report, but we think it is a framework within which we can begin to get the picture of how we

can finalize our task. Thank you.

Prof. Yash Pal Ghai: Thank you very much Githu. I think what we need to do today is to look

at your specific recommendations and those which are adopted will be sent to the drafting team

and they may want to work with you, they may want to work independently initially and turn that

into Constitutional language. As you already mentioned in your second point that the report itself

may need to be re-written for the purposes of publication.

I think what you have given us is a very good basis for discussion on the recommendations. I

think the best thing would be to now come back to each of these specific points. I think it was

kind of you taking us through the whole report and giving us an over view, now I think we need

to come back to each of the sets of recommendations. Before we do that, I would just make a

general point for our discussion. Something that we should keep in mind as we go along and this

is stimulated by Githu’s comment or approach on drafting. Githu obviously looks at the

Constitution from the lawyers point of view and does not want surplus words or rhetoric

language, but the Constitution is also a political document and we do want people to read the

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constitution and to understand it without having to struggle with the technical language, we also

want to affirm certain values and the use of rhetoric may not be out of place, but here clearly

there are different approaches and I think we need to have some sense of what we would prefer.

There is clearly a happy marriage somewhere, though Githu tells me there are no more happy

marriages! But there is some medium which we may want to adopt but I think we should keep in

mind as we go along that there maybe value in using language that might be sometime repeating

something that has been said, saying it with a flourish law, you might be uncomfortable with

that, but people might respond to that in a different way. With that one general remark and if

there are any other general remarks we can have them and then we go to these special

recommendations that have been proposed.

Yes, Prof, then Isaac Lenaola.

Prof. Okoth-Ogendo: I just wanted to make two general comments. The first is on the - -

Com. Lenaola: (Interjection): Thank you Mr. Chairman. We are coming to substantive issues

regarding the Constitution and I think we said yesterday that it is best that we discuss the rules of

decision making before we go to deciding how we are going to engage ourselves in this process.

So my suggestion is, let us go back to the rules of decision-making, pass them or adopt them and

then start on the substantive issues that we need to raise on the document that has been submitted

to us.

Com. Yash Pal Ghai: Certainly that is a good idea. I actually raised that from the very

beginning of this meeting but no one responded to that. Maybe you didn’t quite here. Because I

had asked you, do you want to start with the report , do you want to look at the rules. So I don’t

know whether you have had time to read it, for those who haven’t maybe we can just give about

five or ten minutes for people to read then we will begin discussion of it. I myself haven’t had

time to read this draft and therefore we just sit here and have a few minutes as we read and try to

understand the document. Give the floor to Zein please.

Com. Raiji: I see that these rules have just been circulated. I personally infact I remember I was

checking from the secretary last night because I wanted to look at them. A casual look at the

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rules as I am trying within that period appears to me that some of the rules maybe contradicting

the Principle Act and I think in the interest of - for myself I want before we enact these rules

probably we look at them because in substance, the absence of these rules will not in any way

impede a proceeding on any of the business of the Commission as the Act says specifically the

manner in which decisions are to be taken regarding any issue before the Commission. That is

Section 21. Again it looks as if we are repeating what is in the Principle Act and I think the rules

and all that. I think we can look at them later. But for the time been the business that was

approved and which the report of Muigai can proceed while we look and study the rules and see

what can be done. Because for the record, the question of how decisions can be taken is clearly

set in Section 21 sub-section 6 and assuming that there was to be any disputes over any of the

issues in Muigai’s report, we can take a decision although happily I think this is a matter where

there might not be controversy so that there might be no need to adjourn that business pending

the ratification of these rules.

Prof. Yash Pal Ghai: Commissioner Maranga and then Professor Okoth.

Com. Maranga: Mr. Chairman, the issue of procedures and rules for decision making emanate

from a resolution of a Commission which we had before we came to Mombasa. Mr. Chairman,

this should have been the first business of the Commission. It is only that Commissioner Zein,

who have been requested to draft the rules and procedures had not finished. So Mr. Chairman I

want to strongly say that we need to discuss the rules, especially these rules are particularly tied

up with the report writing and the procedures we are going to use all through. So Mr. Chairman I

think I want to disagree with my colleague that we need to discuss these rules before even we go

to the discussion of Githu Muigai’s report and his committee. Thank you.

Com. Prof. Okoth-Ogendo: Mr. Chairman I just wanted to emphasize that these are rules

guiding our work here, we are not contemplating gazetting them. These are basically clarifying

some of the areas which maybe demand us to make a decision. If Commissioner Raiji believes

that certain aspects of these rules may contradict the Principle Act, I think he is free to point that

out but I think we should move very quickly and look at them and go through with it.

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Com. Bishop Njoroge: Mr. Chairman, I also want to support Professor Ogendo that we go

through these rules, where we think it will contradict we can by-pass it and come to it later on. I

think we are all saying the same thing and we should not make a big thing out of it.

Prof. Yash Pal Ghai: Maybe there seems to be some consensus to have these rules presented so

Zein will you please do that?

Com. Zein: Thank you Mr. Chairman. I would like to table formerly these proposals so that

plenary can approve. Just to say two things. One, that a number of Commissioners raise certain

fears which we have tried to allay them by laying down procedural rules in terms of debate and

consensus building and that there was a raw draft which Professor Ogendo kindly looked at and

panel-beat it. These rules are for general application for all meetings of the Commission.

The last thing I would like to say is that if you look on page 3 and 7 which says consensus

building, 7(1), on the last line is just a small typographical correction of the Commission and

before a vote is taken. The word should be “on” on any matter not “or” any matter. That is all

Mr. Chairman.

Com. Prof. Okoth-Ogendo: Just another correction. On page 2, rule 4(A) should read agenda

of the proposed ordinary meeting of the plenary and then (b) should read a little notice on the

gender and relevant documents of the proposed special meeting of the plenary. So (a) is ordinary

meeting of plenary, (b) is special meeting of plenary and on page 3(9) should be decisions made

by Commission not discussion. That you.

Prof. Yash Pal Ghai: Thank you very much. Are there any comments or do we adopt these

rules? Yes Raiji.

Com. Raiji: Thank you Chair. I have a few observations which I have casually looked at. First

of all, I have no question with this dignified language I think that is long over due! Now, on the

question of consensus building, that is rule 7, I think if I understand it again very casually

because I have only seen these rules this morning, the question of really every matter – if for

example we are to decide whether or not to adjourn this proceeding and 27 or 29 of us have to

speak for five minutes, I think we would loose the sense of it. I would prefer that we leave that to

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the chair taking into account the weight of the issue. If for example it is a Constitutional issue

we are debating, that problem maybe there. We may need to refine that but if it is a simple

procedural issue or a very minor issue, then we do not have to detain ourselves for that.

Now, the question of setting aside for 24 hours, to me it is the kind of thing that could bog us

down because any issue from whether it is not consensus it means that we have to adjourn for a

day until the following day and I think to me that appears to be a rule that it probably might not

assist us although I can see the good intention to give us time to cool off and to negotiate. That

should really depend on the issue at hand and the environment.

Now, the other issue is on rule 9. The question on decisions. Signature of the Chairman and/or

all Commissioners. That means it is either or all. But I thought that subject to this resolution of

the Commission, it is a final resolution of the Commission. Maybe that needs clarification.

Now, Chair, I have just seen somewhere where it is saying regarding press State ments,

information and that who is to sign and I would want to draw the attention of the Commissioners

to section 21 of the Principle Act, where for example 21 (4b) I think the spokes person of the

Commission is set by the Principle Act and I fear that this plenary may not be in a position to

substitute that for itself or any other person. There is also the question of supervision and

direction and the work of the Commission because we need a little bit of flexibility on these

issues rather than to be rigid because I can see the spirit with which these rules are coming

because of the problems that we have been having. But I think we also need to be flexible so that

whoever is chairing at that particular moment, can have some discretion to make determination

depending on the issue at stake and the seriousness or the weight of that issue. Thank you.

Com. Abida Ali: Thank you Chairman. After a long time, I think I do agree with what Raiji has

said. On page 1, the Plenary. I think we are not entirely in that area agreeing with the rules and I

feel that we need to probably State that in addition to what is State in section 21, we are going

to have what we now call special plenary, because the rule talks about ordinary and extra

ordinary so probably we need to make a distinction otherwise it appears as if we are doing away

with the extra ordinary or we are substitution with special and I feel that we need to be clear on

that.

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Then on page two, notification of the meetings, again I also feel that this is not practical in that

we cannot always give 48 hours of plenary meetings. In any event, since we came here we have

never been given any written notice. I think it would be asking for too much for us to be given

written notices of meetings. So I would want us to re-look that section of notification of

meetings. I think 48 hours, 24, 12 hours are not practicable.

Then page 3, I entirely agree with Raiji and my proposal on 6(1) is that every Commissioner

desiring to speak should be given adequate and reasonable time at the discretion of the Chair or

whoever is Chairing on his behalf. I think we cannot shut out a person who has something to tell

us. It maybe a very crucial point and we shut them out because they have spoken two times? In

any event, we have never, during the lifetime of this Commission, when we have not been

having very serious talks, limited ourselves to the two minutes. I think this is the time when we

need to speak as many times and for as long as it is necessary so long as one is speaking within

reasonable time.

Then I take issue with paragraph 7 on consensus building and I agree entirely with Raiji and I

also feel that this is not within the spirit of the Act and the rules. 8 on voting, I think on 8 (2), we

need to agree here and now on the method of voting so that we do not find ourselves in a

quagmire like what is happening in KANU, where we have a show of hand because it is

convenient and for other reasons we then decide to vote by secret ballot. I think let us have our

rules clear here and now. Is it by show of hands or is it by secret ballot and I propose secret

ballot.

Then number 9. with a lot of due respect to the Chair and I do not want to be personal, is that I

think the decisions should be signed by more than one person. Maybe this sitting here can

decide who. Probably append signatures of the Steering Committee or whoever.

Page 4 number 12, I had the benefit of reading the raw draft and I know the “guru” in panel

beating left out a section that was dealing with food and I am requesting that (d) be left out in the

same spirit as the issue of food. I think our vehicles really in this regard have nothing to do with

our proceedings here. We can individually take care of our vehicles. For those who have the

vehicles here. Thank you.

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Com. Prof. Wanjiku Kabira: Thank you Chair and thank you Zein for preparation of the draft.

I wanted to agree with the number of the issues that Abida raised and add also that on page two,

the recent notices. I think like the kind of power problems that we have been having in this hotel,

that is (b) and (c) where we have been given 24 hours and 12 hours that we may want to review

that and say that we could get a draft and break for four hours to be able to read a draft and come

back for the meeting, rather than wait for 24 hours or 12 hours because of the nature of the work

that we have.

On the programme, we want to anticipate that I agree with the weekly programme the

Commission should table it and be adopted at the beginning of the week. But number two.

Changes in the programme may only be made by a resolution of the Commission in plenary.

Once again, these are things that we might not be able to be in control off. For instance

yesterday, we changed the programme and moved on to something else again because we did not

even have the lights so the documents were not ready and so on. So maybe this may tie us to

some things that we might not be able to do. The programme may change for many different

reasons including electricity and so on but I think the first one we should retain. Thank you.

Com. Bishop Bernard N Kariuki: Mr. Chairman, I want to take the observation taken by

Abida and Raiji and add , we are at the final leg of our work. I remember like yesterday, some of

our Commissioners went for some very important work and we had to postpone that meeting, in

order to accommodate them. There are times when we will be forced to make a decision and if

we tie ourselves so rules that will impede our work, I don’t think we should do that.

Mr. Chairman, there are meetings like the Plenary. I agree that in terms of plenary where we

make very substantial decisions, I think it is good to give notice to this document but on this

other adhoc meetings for preparing ourselves to give reports, I don’t think we should really tie

ourselves to a specific time. I also do agree that we should now and then decide the voting

system and I would also recommend that we have a secret ballot way of voting.

On one way, I think I agree with Zein in that when we cannot reach a decision on a very

important issue, when we cannot reach consensus on a very important issue, I think it is good for

us to give ourselves a few hours to be able – I remember when we had a very difficult meeting in

Nairobi, we broke for afew hours. At 4 O’clock we were able to see the way through. I think we

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should not really throw it away. We may not make the full day, we may say let us do it a few

hours, four hours and then come back to the decision.

Com. Lenaola: Thank you Mr. Chairman. Two quick comments. Firstly, a lot of the issues

which are been raised, regarding - for example the notification of meetings are covered I think

by 4(d). We may vary the timing so just like we did yesterday, we resolved to vary the times and

period for meetings so that is covered again.

Then two, probably to correct what Abida is saying in 6-1(1) that limiting the times and period

when a speaker may give his speech, probably we can leave that decision to the Chair. The other

thing is, I think at point number 7, Raiji is correct when he says that section 21(6) allows us to

determine issues by consensus. There is no procedure for reaching under consensus. So I think

what we are trying to do at 7 is to try and give Commissioners and opportunity to think through

the issues, to privately discuss the issues and then come with a consensus, so we are still trying to

build consensus within the context of Section 21(6).

Lastly, I think at the point of information, point number 11. The Commission at 11(2), we are

saying that the Commission should discuss the format and language. So that we are not saying

the chairman is not the of the Commission will resolve the format and language, and

the Chairman still speaks on behalf of the Commission so there is no contradiction with the

Principle Act so I think the issues been raised I think are well covered by the regulations and I

really would suggest that we go quickly and without too much debate make small amendments

and pass the regulations, so that we can go to the substance of this morning’s discussions.

Com. Salome Muigai: Thank you. Mr. Chairman I also want to thank Zein for trying to come

up with a document that gives us a way forward. Again the experience of the last few weeks I

think informs the need for these regulations. I do however want to add my voice to the people

who said that we should be flexible about this, that it is our document and we should be able to

use it for our purposes to get us where we want to go. Some people have talked about the issue

of power. I just wanted to know if there is somebody who has looked into the power backup, or

whether it is going to be something we shall have to keep planning around, that we may have

power or not have power for the next two weeks.

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I also wanted to add on to the suggestion of choice of venues because I think a choice of a venue

can also cut up some of the Commissioners participation. Thank you.

Com. Dr. Nunow: Thank you Mr. Chairman, I think most of what I wanted to say has been said

but I would like to mention one or two things. On 3.3., the working committees, the last

committee’s name is incomplete, Resource Development and Budgeting, that is what’s missing

and on notification, I think for me I would comfortable with the way it is because as

Commissioner Lenaola mentioned, (b) takes care of any necessary variation and the crucial, - I

think what the formulator of the rule probably had in mind, was to avoid a situation where we

call each other at our convenience and notify those we feel with probably have like minds. So, a

certain ample time is necessary. It doesn’t have to be as long as that but it is important that all

Commissioners get notification at the same time. I think that can also be emphasized.

On section 7, consensus building. I think we need to read part 2 and see that the 24 hours is

preceded by a phrase not more than. So it could even be 30 minutes or 10 minutes so we are not

limited by the 24 hours but it can be more than 24 hours.

On the programme, number 10, I think again the spirit is very clear, that the changes in the

programme may be done by the Commission at its own discretion, but also, I think it takes care

of a situation where we have frequent changes of the programme that disenfranchises some of

the Commissioners so that information is given on an issue that is critical and by the time one

realizes, already a decision has been made. So I think the rules are appropriate, there is in house

keeping exercise for the running of the process and I think we should adopt them without further

delay.

Com. Kangu: Mr. Chairman, number 5, I would like to know whether the secretary has already

made arrangements for that because I do not want us to pass a rule which is going to tie down the

Task Forces in their work. I notice that plenaries are been recorded but we have not been

recording task forces so I just wanted to be sure that the secretary has made arrangements that

can implement rule five.

Number 11, I want to agree with Commissioner Lenaola and emphasize that our history shows

that we have had a lot of problems with the communication with the public and that it is

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important therefore that we structure a system of communicating with the public and particularly

so because the stage at which we are now is a very very sensitive stage, we need to be aware that

we are going to make some very sensitive and controversial decisions, some of which if known

out there before we reach certain stages, there are political forces out there that may want to

scuttle the entire process because they know the process is not going the way they would like. So

it is extremely important that we have a clearly structured way of communicating with the public

at this particular stage and of deciding what to communicate to the public and what not to

communicate. Thank you.

Prof. Yash Pal Ghai: Charles and then I was going to close the list, but Ibrahim and then we

must close the list.

Com. Maranga: Mr. Chairman I want to say at least that it is good Commissioner Zein came up

with these rules and Mr. Chairman I want to go straight to 4, and say that we can vary the period

of notice, rather than doing away with it because the same people who are saying we do not need

a notice will be the same ones who will be complaining later on that they were not aware that

such a meeting was taking place. Mr. Chairman, to guard against any kind of mischief or

anything, let notices be given to all Commissioners. Mr. Chairman, that is a requirement and

that is a requirement of all most meetings if not all. Mr. Chairman where necessary people

should be called by phone if you feel the notices will not be able to reach them. The period can

be reduced, for example instead of 48 hours for ordinary meetings becomes 24 hours and the

notice for special plenary can be 12 hours and the other one can also remain 12 hours. That is

good enough.

The point I want to raise is (e), about the weekend meetings, Mr. Chairman, that is very very

crucial because Mr. Chairman you know very well many people go out on weekends and if a

meeting is held on a weekend, there are chances that most Commissioners might not be around

but because we have said that it will be held at the discretion of the Commission, Mr. Chairman

that is write off. So that there is enough notice if we are going to hold a meeting during the

weekend.

Mr. Chairman I also want to agree that 6-1(1), that a Commissioner can speak more than once at

the discretion of the Chair, so we should not have a limit there. Then number 7(2), I feel that any

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four Commissioners, I think should be any 9 Commissioners. Mr. Chairman I am trying to move

it closer to 1/3, that means we should have about 9 Commissioners requesting for a matter to be

set aside rather than 4.

The method of voting, yes I agree should be by show of hands for decisions which are not

contentious, but by secret ballot where you feel and issue has become very contentions. The

other one Mr. Chairman I want to talk about is l11. about information and media briefing. Mr.

Chairman you realize very recently, the People Newspaper carried an article, which supposedly

came out of the Commission. So Mr. Chairman it is that kind of information that makes us feel

that we need to guard on our way we release our media reports. Mr. Chairman, even if they

wanted to know how much we are spending, it is nice for us as plenary to decide and say, alright

proceed and let the secretary brief them rather than them getting information from second hand

sources and the Chairman, it seems like that information came out our own plenary meeting

because somebody must have briefed the media and the chairman if you see some of the

statements which were released, Mr. Chairman there are very encharious to the Commission, so I

felt that the way we process our information is very critical at this point and Mr. Chairman, I

must re-emphasis the point that what we give out must be processed by this plenary.

The other point is on security. Mr. Chairman they are people who pretend to be working for the

Commission. Some people come here who are not necessarily accredited by the Commission and

they are hanging around with the Commissioners, hanging around with the Commission’s staff

and you don’t know what business they have. So Mr. Chairman, whether they are informing,

whatever kind of mechanism, let us know, if it is State agent, let us know, rather than having

somebody hanging around all the time with Commissioners. So Mr. Chairman, I am proposing

now, when these rules take effect, nobody is going to have access to our rooms especially

meeting rooms and other areas unless he is having a batch of the Commission.

Mr. Chairman as you know, as we discuss some of these issues, like when we come to

contagious issues, people will take away that information even before we process it. People will

say, we have agreed on Majimbo, we have agreed on this when actually the thing is, they are

been discussed. So I think Mr. Chairman, this is the time to put the rules into effect and then

make sure that - - Mr. Chairman I propose that we approve those rules with those amendments

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which have been suggested by a number of Commissioners and we approve one by one. Thank

you.

Com. Lethome: Mr. Chairman mine will sound like a follow up to what Dr. Maranga has just

said on security. I can see maybe the working rooms are adequately secured, but not our living

quarters which we have also turned into working rooms also. Like now, there is a document that

I am sacred of leaving in my room, that is the infamous draft Constitution. I am carrying it all

over! Last night I spent the night outside the hotel, I had to carry it with me because I know the

hotel workers will come there and they have access to this document. I don’t know what

measures our secretariat have taken about – maybe how safe our rooms are to leave our

documents there. Those are our working places also, they could even be bugged!

Then on number 3 Mr. Chairman, I don’t know whether we have ever agreed that decisions of

the Commission could be made by the Steering Committees, the working committees and panels.

I thought that only the Commission at plenary can make decisions. The other committees, they

can only advice, they can make recommendations but they cannot make decisions. I need to be

advised on that Mr. Chairman. Thank you. There are saying the decision of the Commission, can

that sentence be changed? So that we adequately cover that? Decision of the Commission. They

can only be made at plenary to the best of my knowledge Mr. Chairman.

Prof. Yash Pal Ghai: Thank you very much. Before I turn to Prof. Okoth-Ogendo, I would just

like to express a personal view on the system of voting. The Act requires us to be transparent

and it seems to me that the contradiction of that general directive, that we should have secret

voting, I think we should vote by show of hands on all issues because this is the only way the

process will be open.

Com. Prof. Okoth-Ogendo: Mr. Chairman, with the permission of Zein, let me summarize

what I hear. What I hear is that we would like to approve these rules to guide our decision

making, subject to the following amendments or tightening.

On page 1, we are going to use the language of the regulations. If the regulations say extra-

ordinary plenary we are going to change it into extra-ordinary plenary. On page 2, we are going

to put the full title of Resource, Development and Budgeting.

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On 3, we are going to re-write that so that we don’t give the impression that a decision made in a

panel is the decision of the Commission. On page 2, on notification of meetings, I think what I

hear is that notices must be given. But notices do not have to be time bound but notice must be

given both for ordinary meetings and special meetings of the Commission.

On page 3, first of all 5, we are hoping that the secretary will heed that instruction and ensure

that there are records available, we don’t have to change that regulation. 6(1), Commissioners

will be given adequate time at the discretion of the Chair rather than limit it to speaking only

twice and therefore we will rely on the gabble to deal with that matter.

On 7, let me draw to the attention of Commissioners to the fact that 7(1) says that whenever it is

considered necessary. In other words, we will not always have fora consensus building time,

only when it is considered necessary and as has been pointed out, we are talking about not more

than 24 hours which could be a lot shorter. So I think that goes basically as it is.

Com. Maranga: There is an amendment on the number of Commissioners.

Com. Prof. Okoth-Ogendo: How many?

Com. Maranga: 9

Com. Prof. Okoth-Ogendo: Nobody had spoken to that.

(Response from audience)

Com. Zein: The reason why that number is at four, is to allow any contentious issues even

raised by a minority of the Commission, to have the benefit of reflection. If you raise it to nine,

which means a third, it means you are raising it to a standard which if eight Commissioners are

dis-satisfied and wanted to have a chance to consult further or reflect upon, then you are denying

these eight Commissioners a chance to do that. If four is too low, I should suggest at least leave

it at five.

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Com. Prof. Okoth-Ogendo: Mr. Chairman, I don’t think that is the issue. If any four

Commissioners may request, it doesn’t mean that when you have four Commissioners there will

be a consensus and when they request the Commission decides under phase one whether it is

necessary.

Com. Zein: And the point is Chair, if you raise it to nine, they may not request.

Com. Prof. Okoth-Ogendo: Infact Mr. Chairman, from rule making point of view, even one

Commissioner should be able to request because ultimately it is the Commission that decides

whether it is necessary to do so. We leave it at four.

Under (9) Chairman, we are talking about authentification of decisions. How do you know that

this is the decision of the Commission? How do you know that this is the decision of the

Commission? If it bears the signature of the Chairman or if it bears the signature of all

Commissioners or if it is affixed with the Commission seal and I would suggest that we do not

say that if the chairman signs, somebody else must counter sign before we know that it is a

decision of the Commission.

8, voting. Yes, Mr. Chairman I think what we are saying there is I myself would prefer that the

Commission decides on any specific matter. How the voting goes rather than to say it is all going

to be by show of hands or by secret ballot. So that if the Commission decides in any particular

circumstance whether you are taking the secret ballot or the show of hands which is what it says

there.

Over the page Mr. Chairman, under security we are removing Commission vehicles. Under

programmes, I think we want to say that the changes can be varied in exception of circumstance

and we shall find language that does not compromise the authority of the Commission to

determine whether changes are going to be made, but we do realize that there are times when a

programme made by the Commission may have to be changed at short notice so we will find

language that accommodates that. I think Mr. Chairman I have covered the concerns of

Commissioners and at that point we may - - Mr. Chairman am I running this meeting or you are

running it?

Page 25 of 103

Prof. Yash Pal Ghai: I am but - -

Com. Prof. Okoth-Ogendo: No, No, I am not complaining but I see Salome’s hand up.

Com. Salome Muigai: Thank you Mr. Chairman. I am glad that we re-thought about any one

Commissioner because I did bring the issue of venue. I have missed several meetings just by

choice of venue. So is it an issue of this Commission or is it not? That the choice of venues

before even we come to how the meetings are held. It is a first generation issue for me, before

we come to the second generation of dealing with the way our meetings are done.

Com. Prof. Okoth-Ogendo: Mr. Chairman I think we will re-write probably section 3, to deal

with the question of venue because I think it is important. So if Commissioner Salome is

comfortable we can draft a reasonable clause dealing with choice of venue and what that venue

should take into account.

Com. Dr. Githu Muigai: On voting, do we retain reference to special plenary because that

concerns me a little bit. If we have deliberated on a matter and reached a point where we can

take a vote, we don’t want to re-constitute the meeting in any other way, if all the persons who

should vote are present, we should just take a vote if that is the vote or declare that a consensus

has emerged and - - I know this is intended to protect but we do not want it also to be the course

of - - now let us adjourn this meeting and call a meeting for tomorrow morning for purposes of

voting.

Com. Prof. Okoth-Ogendo: Now, the rules are saying if it becomes necessary on the matter to

break for consensus building, four Commissioners may ask for it, plenary will determine whether

it is necessary to do so and if plenary agrees that there is going to be a break, there will be a

break and then we come back, we vote. That is all we are saying. So Mr. Chairman with that

summary I would move that we approve these rules and Commissioner Zein and I will sit down

and re-write those rules and we will circulate them to the Commission.

Prof. Yash Pal Ghai: Very very brief, because it is well past tea time I want to break now.

Page 26 of 103

Com. Lethome: On the issue of security, I would like to be reassured by the Secretariat on what

measures have been taken in as far as containing the unauthorized persons is concerned. For

example our rooms have access - -

Com. Prof. Okoth-Ogendo: Can we first approve the rules and then you ask the question?

Com. Lethome: Maybe I will not approve them until I am reassured of this! I do not want to

approve them until I am assured of this Prof.

Com. Bishop Njoroge: Can I say something?

Com. Lethome: I am not yet through Bishop, I am on the floor.

Prof. Yash Pal Ghai: Ibrahim has the floor please let him finish.

Com. Lethome: Allow me to speak now. Ya, because our rooms are accessible to the hotel

staff. Some of us are leaving our documents lying in this conference hall, it is accessible

throughout the night to the hotel staff so I would like to know what measures the secretariat has

taken in as far as that issue is concerned.

(Reaction from the floor)

Com. Lethome: Which security people? Do we have our own security here? Although we do

not know them.

Com. Ratanya: Point of order Mr. Chairman.

Prof. Yash Pal Ghai: Just 30 seconds.

Com. Ratanya: Mr. Chairman, I don’t think whether we can have a general rule over that one

because right now we are not living in the same hotel and that one we should take it very

carefully.

Page 27 of 103

Prof. Yash Pal Ghai: O.K. Unless somebody has a very pressing point, I would like to say that

these guidelines - - we have agreed that a written text of them will be presented as soon as

possible, I suggest that we now break for tea. I want to remind you that we shall be adjourning

today at 12.00 noon upto 3.00 p.m. for Muslim prayers, so please come back just about 10.30

a.m. so that we can at least dispose of the recommendations presented by committee I before

lunch.

Prof. Yash Pal Ghai: ---- but before we proceeded very far, Isaac Lenaola quite correctly

raised the question of procedure, so we then moved to those rules and then we concluded that

before we broke up for tea. So now I am going to invite those who want to make general

comments, please keep them brief and then we move to specific recommendations. So, Professor

Okoth-Ogendo was just about to speak before he was overtaken by Isaac so I am going to give

the floor to him to begin with.

Com. Prof. Okoth-Ogendo: Mr. Chairman, I wanted to make two general comments. The first

one is on the mandate of the Commission with respect to what we are doing. The Act has gone

into a great deal of details on what the Commission ought to address. But even if the Act hadn’t

done that, the general mandate of this Commission is comprehensive review of the Constitution

and comprehensive review in the context of the 21st century and therefore there will be a number

of issues which the legislature never thought about and in reading Dr. Muigai’s report, you get

sections that say we don’t have a mandate on that. I would want us to believe that what the Act

has done, is to give us a minimum set of issues that we must address, but the entire canopy of

issues that ought to be addressed I think is larger than what is in the Act. Therefore if we think

that a particular issue is appropriate for constitutional discourse, I would argue that we do have a

general mandate under comprehensive review of the Constitution to have it. That is my

comment number one.

Comment number two, the people told us a lot of things. Even when they were discussing the

preamble and so on, they told us a lot of things. For purposes of the report, not for drafting, but

for purposes of the report of the Commission, we want to capture what the people are saying

even if at the end of the day we are saying that on these issues our conclusion is, that these are

matters which ought to be dealt with in the political arena or whatever it is so it should be dealt

with by the private sector and so on, let us say so. But let us not stretch the report to a level

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where the only thing we are reporting on is what we think has Constitutional value because quite

clearly there are a lot of things I mean, almost everything has Constitutional value, but we want

to be able to address them in the report itself. Those are my two comments. Thank you.

Prof. Yash Pal Ghai: Next is Raiji then Kangu then Abida, Mosonik. Can I ask you now to be

as brief as possible. Don’t repeat the point you are making, I think people understand it if you

State it briefly and in principle, I am not going to ask people to speak more than once at this

stage unless if it is absolutely essential.

Com. Raiji: Thank you Chair. The first one, as I had hinted to Githu as I was coming in is on

page 39, the Sources of Laws of Kenya. As presently proposed, it would appear to me that we

would be introducing an internal conflict of the laws because without some form of it is

difficult to know which overrides the other one and I would for myself propose that other than

the section which I think is already there, stating the supremacy of the Constitution, other

sources should be left to Legislation. That is my first comment. Then next one - -

Prof. Yash Pal Ghai: Please do not go into individual recommendations. We will come to that

one by one.

Com. Raiji: Sorry, Chair, then maybe you have not explained the procedure because I thought

we have now opened debate so that we are now debating the report.

Prof. Yash Pal Ghai: No, No, for general comments like the ones that Commissioner Okoth

made or I made about style of drafting, but we will go through each of these recommendations

one by one and then you will have time to comment on those.

Com. Raiji: Then maybe I still reserve my right to be first on the list when we come to the

specific recommendations.

Prof. Yash Pal Ghai: Well everybody will get the chance, you can be rest assured. Sorry it was

Kangu first and then Nancy.

Page 29 of 103

Com Baraza.: Mr. Chairman, I think apart from what the Act requires of us to do, we did also

agree as a Commission that there are some issues that are cross-cutting and should remain cross-

cutting throughout the Constitution and of course what I have in mind is the gender equity and

equality. I don’t see like it is cross-cutting. I have that feeling.

Com. Dr. Githu Muigai: May I interrupt? Could you put that by way of a specific proposal as

to how we could improve our presentation? Would you like to see Gender in the preamble or -

-? You know, just to help us when we revise.

Com. Baraza: I would like to see - - although probably you will agree that it would be

subsumed under the general rights, but I would want to see that thing of “We the people of Kenya

having suffered ….” You know women have told us in no unspecific terms that they have

suffered exceptional expression more than other people. Then when you come to Directive

Principles of State Policy, I want that also - -

Prof. Yash Pal Ghai: (Interjection): I think when we come to specific proposals then you can

add where you think it is appropriate, but let us keep this a general discussion.

Com. Kangu: Mr. Chairman, first I also want to talk about the treatment of the views of the

people. I do not think that it would be proper for us to keep saying; “Kenyans told us this…”

because my experience is that on most of the issues, there were varied views. Sometimes infact

directly opposite positions. It is my view that those different positions must be brought out in the

report and in our analysis be able to justify why we have taken a particular position as opposed to

another position, but if we make general State ments, we will be attacked by some Kenyans who

will say “but on this issue I said a different thing”.

Now, number two, and which I was discussing with my colleague yesterday and which also

relates to the comprehensive review mandate which Professor Okoth-Ogendo referred to was that

our mandate is to put in place a new Constitutional dispensation and not just a Constitution, and

as such, it would be wrong for us to single out that which needs to go to the Constitution. We

ought to discuss everything and of course make recommendations in terms of what may go to the

Constitution and what will have to go into supportive legislation. So that we do not get into the

position Professor Okoth-Ogendo has always said, we got a Constitution at independence that

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was completely opposite or opposed to the legal system. Or we planted a new Constitution on a

colonial legal system. We must be able to show in the report, what necessarily legislations would

be required and some of the things that would need to go into that legislation to be able to give

effect to the new Constitutional dispensation.

Now, number three is the question of the conceptual analysis. My approach is that some of the

areas in which we have had problems in the implementation of our Constitution are because of

lack of information on the part of those who implement and I would think that this review

process and through the report, should provide Kenyans with an opportunity to research and

analyze some of these issues so that in future, people dealing with some of them will be able to

turn to the report as a source of information and an example I would give is what Dr. Muigai said

about the interpretation of the Constitution.

We might not need to put a clause in the Constitution on interpretation but there is on harm in

our report discussing at the conceptual level, the emerging approaches at the international level

or at the comparative level as regards the proper approach to the interpretation of the

Constitution, so that when the Constitution is ready, the judges can be able to turn to our report

and find a source of information on how to handle some of these things, so I would say that the

conceptual analysis will certainly need to be expanded so that all the relevant issues are brought

forth and can be used by those who would want to turn to our report.

Prof. Yash Pal Ghai: Thank you very much. Now, let me look at my list. Isaack I think was

next.

Com. Hassan: Thank you Mr. Chairman. I think my first point is basically a clerical error on

page 11. Under legal nature of Directive Principles, Dr. Githu. I don’t know whether the word is

justifiable.. Most Constitutions which have Directive Principles of State Policy State that

there are not justifiable. I think it should be justice-able. Now, the other point Chairman, is

whether in the report, when you are looking at comparative examples of other countries, do you

think it is necessary to reproduce in details? Let me finish my point Dr. Githu. I don’t think it is

necessary to be produced in details, the provisions of that Constitution in the report. Perhaps a

summarized version would have been more appropriate because this will tend to clog the report.

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My third point Mr. Chairman, is what Dr. Githu’s group call sample recommendations from the

public. I have a problem with that . I think it would have been more appropriate if

you have analyzed accumulatively, the total views of Kenyans and then distill what we think

represents the general view of Kenyans rather than calling it sample recommendation, that means

therefore that you have left out other recommendations or others.

And in that regards therefore, it is important. I don’t know whether the constituency reports are

now out, and I don’t know what the debate is of this recommendations were, although I can see

that Githu’s committee has quoted individual citizens and groups when they were giving their

views. But maybe you need to collect and analyze the views of all Kenyans and give it as a

recommendations. But Mr. Chairman I am very worried that we are now going into a very

critical stage before we have looked at the constituency reports.

Prof. Yash Pal Ghai: I could just add one. On page 11 it says that the Directive Principles are

enforceable under the Indian Constitution. Page 11, maybe 24 also. I said the Indian Constitution

State s that directive principles are enforceable, infact they are not enforceable.

I also should say that as far as the public comments on the preamble and the directive principles

are concerned, the print out we got in Nairobi before we came actually has a very extensive -

that is one of the most intensive discussions or recording of peoples views, so you don’t even

need to go to constituency because there is so much there in the print out that we got, on

directive principles, on preamble, so I think the material is available already for that purpose.

Com. Maranga: Thank you Mr. Chairman. I just want to comment on a few things. First is the

style in the way they have presented their report. The Chairman, maybe it was going to be nice

if their style of report reflects some basic things. Like the various concepts used in their report.

Like when they talk about the word nation, what does that mean? Nationhood? Truly it is not

defined and this report is not self explanatory. There are many other concepts that were used in

this report which should be defined. Because if we are using a Nation at the same time as if it is

the same as State , that means there is a problem, so I felt that maybe they need to define their

terms with their usage.

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The other point I want to talk about is the comparative analysis they have done. Mr. Chairman,

there is no reference in the entire report, unless maybe because I have not read in detail - - let me

apologize, I have not read the report as it is, but the truth is, I have not seen anything related to

the independent Constitution. That means the 1963. Does it mean there was nothing absolutely

from the 1963 Constitution which can be reflected in this report? I have seen you have picked a

lot of countries here and there.

The other point is I felt that maybe before they reach the tentative conclusions, there are what

you call the cross-cutting issues which they also have to worry about. Like when you are talking

about for example citizenship and other areas, it will also Mr. Chairman depend very much on

what other Thematic Task Forces recommend on some specific issues. Even the mode of

government and so on. So I think there should be wary of that, and maybe Mr. Chairman I was

going to say we need to start now consulting across the board of the Thematic Task Forces on

crossing-cutting issues before we come with the tentative conclusions otherwise I will make my

specific comments when that session opens.

Com. Dr. Swazuri: Thank you Mr. Chairman I just want to add and follow up what

Commissioner Isaack has said here. That the report has proceeded well and then finally it has

given its conclusions and recommendations and at this point, before we have analyzed the entire

data, I find it vexing that we can now draw on conclusions and then give them out. I though this

was a literature review kind of exercise where we are now saying, dissecting what is there, what

other Constitutions have said and so on and then now putting it into proper perspective after

which you now look at what Kenyans have said and then from there now we are going to have

our own conclusions and then recommendations. At the moment I feel as if this particular task

force has already done what is supposed to be done at the end and we have not reached that

stage. That is my first point. I also agree with him on the constituency reports. I have been

asking for these reports. Some of these issues would have been sorted out very easily if we had

all the entire data with us.

Also on the issue of whatever the Hassan has said, I would rather say we are

talking about examples, if we don’t have the entire data at the moment, it is only safe talk about

examples of issues given in terms of whatever. Instead of saying samples. I can challenge and

say that a sample of one of the preambles given which I thought was very good is not here. How

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are you going to take care of that? So I think we kind of, and also from what has happened in the

past, I fear that it is the same recommendations which are been given here which can easily be

lifted and we agree that they are now recommendations that will alter the Constitution, yet we

have not looked at the substance of what the Kenyans said.

Remember it is our mandate to look at Kenyans views, that is why we went out there.

Prof. Yash Pal Ghai: The next speaker is Lenaola and then Salome and then Kabira. Please try

to make your comments short as you can.

Com. Lenaola: Thank you Mr. Chairman. I agree with those who say that the sampling does not

assist us very much. If you look at page 2, which deals for justification for a preamble, I think it

is too bare and I think we need to beef up the conceptual basis for saying we need a preamble in

the Constitution.

Lastly Mr. Chairman, at page 7-8, we jump from other Constitutions to what we are calling

tentative conclusions, and then we jump from there to proposed up provisions and there is no

flow. Why are we going to conclusions, is it from other Constitutions is it from the public

hearings? What is the basis for what we are concluding at page 8? Therefore from the

conclusions, then we can lift out provisions that should go to the draft but if you read the

conclusions and the draft, there is no co-relation in terms of what they have proposed. I think

there must be some flow and elegance in the way you proceed from one part to the other.

Com. Salome Muigai: Thank you Mr. Chairman, I would like to start by appreciating this

report that it is ready and it is our first report and a lot of work has gone into it, I would like to

appreciate that. I would also like to point out that from our data runs or our data presentations we

were told that there were 14% women versus 76% men so at this point I think it would be very

very important for us to look at different groups. I agree with the people talking about different

constituencies and looking at what came out at different regions. But I would like to take that

further on and say, can we look at what came from different groups. For example, I would like to

know whether women thought gender was an issue that should go to preamble and because they

were few, we may need to think of how to deal with their suggestions versus their minority

participation.

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I would also like to look at other groups and what it is that they said. So, I am adding my voice to

the constituencies but I am also saying even within those constituencies, we need to look at

different people and what they said especially on gender. Thank you.

Com. Prof. Wanjiku Kabira: Thank you Chair and I appreciate the work done by Thematic

Group I. I believe that is a very important discussion because it is going to shape the way the rest

of us are going to present and I think in that context, I want to express a concern that I have. I

know that most Kenyans would want to know - the ones who will read the report, would want to

know, have we faithfully reflected in our report, what they said? The can excuse us if that does

not seem fully reflected in the Constitution because you can say that maybe the document should

be small and so and that you may see your specific ideas, but the report , it is on the basis of the

report that majority of the Kenyans will judge us. Building on what Commissioner Kangu,

Commissioner Hassan and others have said, that we probably need to beef up the sections on

what were the Kenyans concerns? What did they recommend? So that they can be able to

identify with that particular report even before we get into distilling of the information that goes

into the draft Constitution itself.

I think also maybe as we move along – there is a question I wanted to raise as to whether after

this, what would be the next step? Shall we be harmonizing, shall we have people harmonizing

the various chapters? Or how do we move? So that as we make recommendations, we also

know where to focus on. Thank you.

Com. Bishop Bernard Njoroge: Mr. Chairman, I do think we have to be clear here. For

instance, Dr. Muigai’s Task Force has worked on this document. I would like to know whether

they had the reports from the hearings. I would also recommend that before a report is given, like

the one which is dealing with certain topics, that people are given whatever was said in the

hearings so that then they can do their work. Because then we can keep on coming to it, that why

are we doing this before the reports are given. If it is preamble, what did the Kenyans say about

the preamble? Let the people be given so that they can read it overnight, if anybody has a

comment to make, so that we then do not delay the finalization of this report by saying we

haven’t done this. That would be my recommendation.

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Prof. Yash Pal Ghai: O.K. Thank you very much. I think seven points have emerged during

this discussion. I guess the most important is how we deal with the views of the people. I believe

that the constituency reports are available in the library and they can be consulted there. I think

the print out that we got is quite helpful but it is of course not desegregated and at least on the

preamble, it was very detailed indeed. I think the issues that are been discussed in this report, and

this has been available for a number of days, and I think committee I should be urged to look at

those. There were available and the report has been prepared. So, I don’t think we can just say

that the documentation is not available. It is available but people have to make the effort to look

at them and I don’t think one can do further printing segregation, these are available for

consultation, those who want to consult and finally the relevant groups should make sure that

they have looked at those parts of their reports which relate to their themes.

I think the question of drafting of the report has come up. We did have a template format that

has been distributed and I think that provides logical sequence of the contents of the report and I

think we should stick to that. You will notice that there is a special section on what people have

told us and I have said several times if you would look at the provincial round ups, you would

get a pretty good idea what people have said in different provinces or people said by gender.

I think it is for us now, these materials are available, and as Commissioners it is our

responsibility to study them and to draw up conclusions. I don’t think the secretariat can do any

more for us than they have done. The buck now is for us and we have as Commissioners to

study those documents and use them in the best way we can, use them for enriching the debate

here but I think there is no use saying the secretariat should do me. I think we should now look at

the materials available and make our own conclusions.

The third thing is that we are already at this stage focusing on the recommendations, the actual

reports that will go into our final report will need to be if necessary re-drafted. Certainly I think

there is no reason really to re-produce huge chanks of the sections from other Constitutions

especially if there are reproduced verbatim, so often they use technical language and to

understand that, you have to spend a lot of time, so what you should do, as I believe some reports

are doing is to summarize the main points that emerge from experience of other Constitutions

and not reproduce them like the way it has been done here. As we said, this is the first report to

be presented and clearly we are going to learn as we go along.

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The next point I would make is that sometimes proposals are presented and I don’t only mean in

this report, I am sure it will be the case in other reports and the way of general recommendations

and sometimes they are presented in a drafted form. By which I mean as they might actually

appear in the Constitution. I think we have to agree that whatever the format used in the

presentation of recommendations, the drafting team should feel free to use their own style

because each report may have a different style we want to have a uniform harmonized style and

so the important thing is that we are able to convey to the drafting team our policy

recommendations. Whatever the style, language we use, then it is then for them to translate that

into Constitutional language. So in our discussions perhaps we should not spend too much time

in the actual words used in the recommendations but agree on the policies and then leave it to the

drafts team.

These are the major points that I sort of see coming from there. There are cross-cutting issues

here, I think we should be alert, we have distributed papers on these cross-cutting themes and I

hope you have studied these, you will see that they have implications for more than one chapter

and I hope every team, every group will keep those cross-cutting themes in mind. There is

participation, there is gender there is disability and so on and I think we need to keep that in

mind.

I would like to suggest we start looking at individual recommendations but Ms. Abida has

something to say so I will give the floor to her.

Com. Abida Ali: I was having second thoughts whether I should really comment chairman. I

think it is good the person chairing treats others with decorum because sometime you really snap

and for some of us we just also answer back rudely which I don’t think it is really necessary

chairman. I wish you had been a little polite in the way you told me to wait for you to speak. Let

us be civil even as we are chairing. Chairman, what I had wanted to say is that some of the

information that you may be having is misleading.

Two days ago, I went to the library to ask for the constituency reports, that was before the

problem we had yesterday and all that they had and not ready for reference was constituency

reports for Central Province and they were not ready, they were not bound. So I am wondering

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whether by this morning, they truly have - probably it would be good for us to have somebody

from the Secretariat, confirm that to us because I personally was unable to access.

PLO Lumumba: Mr. Chairman with your permission there are three different kinds of material

on constituencies. Set number one, constituency data runs. All are available and I have just been

confirming there are been printed. Set number two, constituency reports, that is the synthesis of

the data. That is coming in and we now have central been bound, we have North Eastern and we

have Coast and they are been printed. Set number three are the summaries that were done by the

programme officers and which you used at the Provincial round ups. All these boil down to the

same information in different forms and therefore these are been done and are available for

inspection there are just been reduced into hard copies.

Prof. Yash Pal Ghai: All right, I think we should now go to the specific recommendations and

if any member of the committee wants to say a word or two but no more may do so but from my

own note, the first of the recommendations appears on page 8 and this is to do with the preamble.

Com. Dr. Githu Muigai: I thought we are inviting members of my committee now depleted to

only them and I, to respond in two minutes just in general. I think I will use one minute and Zein

will use another. Mr. Chairman, virtually all the comments which have been made, we are ready

to take on board. The comment about providing much more data is considered without .

Kangu’s comment on providing a broader based conceptual framework, we consider that and

have no difficulty.

But I just want to say this about data. I don’t know what experience other groups are having, but

for our part, although Walter has done what I think is a very very commendable job, I think that

there is still a very serious difficulty of accessing information in a form that can be used in our

report and I found that some of the staff seconded to us from the data room have first of all –

thinking about our own experience, they have absolutely no interest whatsoever in the job. They

take no interest whatsoever in what the committee is doing. I spent the better part of my time

running around looking for the person allocated to us and I would say go and scan this document

here, come down. She says “ I have left it there, they will bring it when they are ready” and so

on. I fear that unless something very dramatic - Walter runs around with the bundles himself.

That is not his job. His job is to deal with what Kangu would call the concept. Right now he is

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dealing with the mechanics and Patrick is not here but I think it is something that ought to be

done.

Com. Zein: Thank you Chair. I would limit myself to speak further concerning the data which

the Convenor of my group has spoken about. It is true they have data runs and I think we need a

session where they can explain these things clearly to all Commissioners so that the difficulties

which we encounter as a Thematic Task Force could be a lesson to the other groups. For

instance the data runs which are given to us are to use the word of one of the workers there,

“Dismembered” in the sense that when they are cataloguing, the first thing is to give a code to a

memorandum once it is given. Then once that is done, then they take the different parts and

allocate them according to the breakdown of the template which was agreed by the Commission.

For instance they will take away the preamble references and put them all together with

preamble and that data has no breakdown on classification of gender, or classification of age, or

where it is been said, if it is North Eastern or if it is in Coast province. We have made specific

requests to Walter in terms of getting these data with those specifications on gender, on different

parts of the country and so on and so forth.

The other problem, which I need to share with the forum here which maybe the Convenor might

make a comment about. Is that we were informed that not all memorandum which is received is

scanned. We were told that they have a criteria for scanning memoranda and this criteria is

loosely called unique memoranda. Now, we asked, what consists of unique memoranda? And we

were told that maybe it is unique in terms of specific aspects recommending, maybe it is unique

in this sense or that -

Prof. Yash Pal Ghai: Excuse, when you say scanned, what do you mean?

Com. Zein: You see, we had asked for materials, we said; “could we have at least 10 samples of

memoranda talking about these different aspects we are dealing with from each constituency?”

and we were told; “No, you know the memoranda which we scanned…” which means putting it

on the scanner to download the information to our database, is only done by sampling. Sampling

based on the definition of unique memorandum. This is what we were told Chairman. I am just

reporting and that is why I said advisedly, the Convenor of my group might want to address

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himself to this because we are the only two here because he can verify what I am saying to you

because this is what was said to us by Walter and that that is how we have been able to access

some of the unique memoranda but we have not used them as examples because we wanted to

draw this distinction that it is a form of sampling, but there is no objective criteria of sampling. Is

it random sampling or so on and so forth.

When we reported the way we did, we did deliberately because we felt that that was the best we

could do with the information that we have and that would be discussed here when we come

here. Thank you Chair.

Prof. Yash Pal Ghai: Anyway, lets proceed with the recommendations on page 8.

Com. Bishop B. Kariuki: Mr. Chairman, although preamble is not enforceable in law but when

judiciary is dealing with certain issues and code, it is very helpful and therefore we should be

able to enrich it and what I find missing is in the last paragraph. Page 8, on the last paragraph,

determining to build a strong Constitutional democracy committed to social justice. I would like

to add to social economic and political justice because I know some issues dealing with political

matters have not been justifiable in court because maybe we did not have a preamble where

judges could interpret so I am adding those three State ments.

Com. Kangu: Mr. Chairman, I would like to commend about the use of the terms and this will

have to be linked to the conceptual analysis and my first term of concern is the people. we must

seek to define the people at least in the conceptual analysis so that when we use the phrase in the

preamble “We the people,” someone can turn to the analysis to be able to find the scope of the

people and this is related to – because if you go further into the report, you will find references to

the people/ citizens and those are terms that are abit confusing because in the preamble you can

see a conclusion that says that we have adopted the Constitution for ourselves and that kind of is

exclusive if you look at what would be the definition of the people.

Then if you go to the use of the term “citizen”, you will find that the definition of the term

citizen in law is equally exclusive. Many Constitutions talk in terms of adopting the

Constitution for ourselves and our posterity and you can be sure that posterity is not yet as

citizens so we need a through conceptual analysis of those terms.

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Prof. Yash Pal Ghai: Well, before you give up the mic, what suggestions do you have? The

preamble says “We the people of Kenya…” Do you have specific recommendations on

amending it or - -

Com. Kangu: I am saying that we can use those terms but if we look back, we must define in

the conceptual analysis so that if we use them in the preamble the way they are, a reader can be

able to go back to …… and that of course captures more than just those of us who are making

this Constitution today, it captures the future generation, it captures the young people cannot

participate today and that must be defined in the conceptual analysis and of course at the end the

phraseology that seems to correspond to the concept of the people has always been to adopt the

Constitution for ourselves and our posterity or our children and so on. So I think we should not

just say ourselves, then we will be excluding the other people.

Prof. Yash Pal Ghai: So are you actually proposing - I get your first point, you want people

discussed in the report, but your second point about posterity, do you want it to be in the

preamble itself?

Com. Kangu: It has to be in the preamble that one.

Prof. Yash Pal Ghai: We have had two proposals. Maybe we need to take them one by one.

The Bishop has proposed adding political and economic to social justice. I mean as I said before

these are really policy questions, the actually drafting will be done by our expert team but it is

the idea of capturing political and economic acceptable to the - -

(Reaction from the floor)

Com. Kangu: There is one point I have not made .

Prof. Yash Pal Ghai: Ya, let us deal with this first and then -- so, I see heads nodding is it

right? O.K. we will do that. Then the point about ourselves and our posterity, is that acceptable

too? Alright, so that is done. Any other proposals?

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Com. Kangu: I am sorry. I would also want to see a reflection in the preamble about the

purpose of government as been the service of the welfare of the people.

Prof. Yash Pal Ghai: Before I put that to discussion, I think there is a danger of overloading the

preamble. The preamble is effective and it is short and crisp but it is a very important point and

it should be - - are you happy with that?

Com. Kangu: Mr. Chairman the Japanese preamble (laughing) – we have come from our own

history which we might need to reflect. We might need to look at the Japanese one before we

decide whether we should have it short or long.

Prof. Yash Pal Ghai: Well, I am not ruling out your suggestion, I just wanted to make the

general point if there is a feeling that we should somehow reflect here the purpose of

government, it will not take more than a few words. We can do that. Can we discuss that?

Com. Dr. Githu Muigai: May I interject that we don’t need in my very humble view to decide

whether the preamble will be short or long. Let us decide what else is missing, and if we put it

and it becomes long, so be it.

Prof. Yash Pal Ghai: These are point of - one can differ on that Githu. Yes Nancy.

Com. Nancy Baraza: Mr. Chairman, I just want to make a comment. I do appreciate our

concern that a preamble should be short and crisp. But I would want to porch Dr. Muigai

himself that every Statute should speak on its head and I think this should also apply to our

preamble so that in the process of trying to be short and crisp, people should not feel they have

been left out. I must still go back to the cross-cutting issues. The women looking at it and seeing

they would never believe what has happened. I think we should not kill certain issues in the

process of been short and crisp.

Com. Kabira: May I make a proposal because I am next to her?

Prof. Yash Pal Ghai: Well, let us deal with the one that Kangu made. Do we want reference

say to the purpose of government as a welfare of the people?

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Com. Prof. Okoth-Ogendo: We will put that in the Directive Principle.

Prof. Yash Pal Ghai: O.K. He has withdrawn so - -

Com. Dr. Githu Muigai: Mr. Chairman, may I suggest to you sir with respect. I know I have

grabbed the mic. I think you need to remind us the difference between the preamble and directive

principles because sometimes in good faith, we may be trying to squeeze into the preamble,

things that belong in directive principles.

Prof. Yash Pal Ghai: Well, your report does that very well but I will repeat. Preamble serves

very many different functions. There is no one standard format for a preamble. Sometimes

preambles are very much concerned about the history and that maybe the Japanese issue, that

was the Mozambiquean and so on. They recalled struggle and so one. Sometimes preamble sets

a kind of agenda for the future, so there is no one particular function served by the preamble. It

is for us to decide what we want to do. In our case, the directive principles or policy as

sometimes there are called, or State principles and in other Constitutions they are called are

basically guidelines or some serve more than guidelines to organs of the State and the people

themselves as to how State power is to be exercised and what are the goals of the society.

The preamble of course does that to but does it much more succinctly where as the directive

principles sets out in some details the goals that the State must peruse. So I think what now we

are looking at is the preamble and certainly the first paragraph as you notice here talks about the

past, history, the difficulty we have faced and then looks to our diversity and then looks to the

future goal. So there is no one particular format for a preamble. That is all I can say.

Com. Prof. Salim: Thank you Mr. Chairman. I do agree that preamble should be short and crisp

but I also believe like lettuce it should be crunchy and delicious so we can make it even more

richer than it is. I feel that the word free and freedom should be featured somewhere in the

preamble, so perhaps it can come after or just before Just, Democratic and Prosperous Nation.

Our people have been telling us everywhere we go, things about uhuru, our freedom, our right to

do this and to do that, so I think the word free Mr. Chairman should come in the first paragraph,

establishment of just free or free and just and prosperous nation. Then there is reference to

diversity and I believe that word diversity immediately one reads it, one wonders what sought of

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diversity are we talking about. Again, by adding one or two words there, to enrich that particular

paragraph, make it crispy and crunchy, the word ethnic and cultural could be added. Recognizing

our ethnic, religious and cultural diversity.

Com. Dr. Githu Muigai: And religious too?

Com. Prof. Ida Salim: And religious if necessary although I thought unless we have splitting

hairs, culture does include to some extent religion. Then Mr. Chairman, again the word freedom

can come in. To live together in freedom. I feel that sometimes peace and unity in the absence of

freedom can be quite an oppressive type of peace.

Then Mr. Chairman, again the question of style I don’t know how far we can go. There is the

word determine somewhere, and determined to live together. Our commitment to maintaining

Kenya the secular, indivisible, sovereign nation. Then determined appears again. I thought that

maybe again, by way of variety, the word resolve, are resolved to build a strong - - just by way

of stylish suggestions.

Prof. Yash Pal Ghai: Just keep your hand up. - -

Com Prof. Okoth-Ogendo: (Interjections) Mr. Chairman, mine is a word of caution and the

word of caution is the following. We are not at a stage in which we are looking at Constitutional

language. That will come when the draft people give us a draft. what perhaps we should be

doing at this point, is concentrating in 1.7, not 1.8. and saying, we agree the conclusion is that

Kenyans want a preamble, they want to affirm their historical experience, their national values

and the indivisibility of the State and add anything else which we think ought to go into the

preamble but not to discuss and approve 1.8. that is an example that is coming from that

committee. But clearly we are going to get back to that when we seek Constitutional text. Mr.

Chairman I would have thought that if we were able to approve 1.7, then we can move on very

fast and finish the preamble.

Com. Prof. Wanjiku Kabira: Thank you very much Chair. The second paragraph, I was just

wondering whether we can recognize two things. Two different elements. One of them been our

own - - I don’t know whether it can go to number one but I have been thinking about

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communities in this country that feel that as a society we have discriminated about them as well

as the women. You know, marginalized communities and so on. Can we recognize the sins

which we ourselves have committed in one of the , and then appreciate our diversity and

the richness of our common heritage.

Com. Nancy Baraza: Just to supplement what Professor has just said, if we go to 1.7, in the

bullets. If we could appreciate that we have unleashed various types of discriminations amongst

various classes of people. To be captured in 7 then when it comes to drafting that will capture.

Prof. Yash Pal Ghai: Is that acceptable?

Com. Bishop B. Njoroge: No I object to that. Mr. Chairman, first I want to caution ourselves.

The issue of women, we must look at it in a very light touch because – for instance, Mr.

Chairman, if we talk about discrimination, we can also say for instance – maybe when Kenyatta

was the President, there were communities that were discriminated and if you are talking about

discrimination, then we have to write that. In this era there are communities who have been

discriminated. I beg that when we come to the issue of women, children, let us tackle those

issues at a certain area where we can put them there but not everywhere we go they emerge.

Prof. Yash Pal Ghai: I think if I understood Nancy, it was to refer to all the communities,

which were, discriminated not only women.

Com. Nancy Baraza: Yes. Let not just name colonialist, we have discriminated against the

people the people of North Eastern, against women, so can we capture that?

Prof. Yash Pal Ghai: Is that acceptable? There seems to be a consensus on that.

Com. Dr. Githu Muigai: Mr. Chairman, this I believe was subject to what Professor Okoth-

Ogendo has said, that we are dealing with two issues simultaneously, one at 1.7 and one at 1.8

1.7 are the conclusions and if it is been said we should recognize the historical discriminations

against sections of our society however defined, whether women, whether religious minorities or

whatever, I don’t think people will have a problem with that.

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When we come to 8, how we render that specific issue as a preambular issue, is what Professor

Okoth-Ogendo has suggested should rest with the drafts men.

Prof. Yash Pal Ghai: Yes, we have already agreed on that.

Com. Dr. Korir: Mr. Chairman, although we have been advised to close our eyes to 1.8, but I

think 1.8 is a pointer to what we really want and it is not the drafts people to decide for us what

will go into the preamble, it is for us to tell them and we are saying this task force was given the

assignment, to begin to think out for us on the basis of the data of the view of the people and so

on, so as much as I would like to address 1.7, I think the members should always be looking at

1.8 what it leads to or how it can mis-lead to because that is what we are interested in ultimately.

So Mr. Chairman, it says the majority of Kenyans expressed the wish that the Constitution

should contain a preamble, but I don’t see for example where the people of Kenya you should

put God into the preamble twice. It is there in the beginning; trusting in God and then there at

the bottom, Mungu inbariki Kenya and I have nothing against God at all.

Secondly Mr. Chairman, did the people of Kenya say we mix the languages? We know in one

place we are told, that Kiswahili and English are the official languages, but here we have

Kiswahili at the end and English the rest. When we have the Kiswahili version of the

Constitution shall we then include some English so as to have the two languages?

Thirdly Mr. Chairman, the people according to bullet number two, said that the preamble should

contain historical experience, but history did not begin with colonialism as we have seen there.

Recalling our struggle against colonial rule, we had history long before colonialism was there

and secondly Mr. Chairman, our history has not only been a history of oppression and tyranny

and injustice. If we are talking about something crisp, those words, oppression and tyranny and

injustice, they all mean the same thing actually, so Mr. Chairman, how do we bring our history to

reflect bullet number two and not narrow it down?

Then Mr. Chairman, how do we ensure that our preamble does not sound too much like some of

the others we have seen here. Of course this one sounds abit like the South African one,

including where Mungu ana bariki Africa yetu. Then Mr. Chairman I think generally, the issue I

am raising about God seems to be reflected in that same preamble you are not saying we must

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not discuss. Trusting in God, Mungu ibariki Africa, but you are building a secular nation. What

does secular mean in that context Mr. Chairman? Do the people say that there should be

separation of State and Religion or what did they say? We could go on and on.

Prof. Yash Pal Ghai: So I wonder whether Dr. Mosonik would like to make some proposals. I

think your proposal is very pertinent. But wouldn’t you like to make specific proposals that we

can discuss please?

Com. Dr. Korir: So, Mr. Chairman, I just want to say, one, we must be told from the data

whether we are agreeing that this is a State where we separate religion from the State or

whether we mix the two, that is one, and that would come at the very top tentative conclusions

on that issue and after saying there should be a preamble we address that issue and secondly Mr.

Chairman, the historical experience, maybe we can ask Professor Salim to try and give us a small

paragraph summarizing the Kenyan historical experience as much as possible.

Thirdly Mr. Chairman, and that we want to agree that history when it is summarized, will be a

history that is diverse, it is a rich history, it is not a one sided history of oppression and tyranny

and injustice. Fourthly Mr. Chairman, that we must separate the languages so that when we are

writing in Kiswahili it is Kiswahili, when it is English it is English, let me stop at that point for

now.

Prof. Yash Pal Ghai: Thank you very much so could we take these points?

Com. Kangu: I want to ask something.

Prof. Yash Pal Ghai: No, no when a person raises specific proposals we have to discuss it. Is it

relevant to this? O.K.

Com. Kangu Mr. Chairman I want us to say that we should not talk in terms of a struggle

against, but instead a struggle for. Then we identify what we are struggling for. So that we can

be saying, “We the people of Kenya, recalling and recognizing our struggle for survival and self

preservation through various stages of history …” Then we can mention the pre-colonial history,

the colonial history and then the colonial government and so on.

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Prof. Yash Pal Ghai: Can I just interrupt? I think we have agreed that we are now not drafting

and I think you are quite right to suggest the formulation and the point you made is that if it

contentious we can take out the words “struggle against” and put the words “Struggle for”. But I

think if you go then to draft for us then I think we will be the usurping the task force.

Com. Kangu: Mr. Chairman the problem is that the terms may affect the content and that is

why - -so I can say we talk in terms of what we are struggling for instead of what we are

struggling against.

Prof. Yash Pal Ghai: Thank you. Is it on this point?

Com. Prof. Wanjiku Kabira: I wanted to agree with Mosonik that we get a short paragraph on

the history and both elements of the history and I would be happy to be there with Professor

Salim although I am not a historian.

Com. Dr. Githu: A point of order. Let me suggest by way of moving forward, that if we

postpone too may decisions to be made, we will not cover the mileage that we need. Professor

Salim earlier made some very succinct recommendations which when we move on. Because the

draftsmen will have to take over, I understand for example Mosonik to have said, our history has

not only been a tyrannical history, let that be recognized. Point! Then we move on.

John Kangu said there are things we have been struggling for, not against. Point! We move on.

But if we reserve that another committee should meet at another time to advice our committee,

we will not finish.

Prof. Yash Pal Ghai: We have worked well as far as I can tell. I think we are taking decisions

now on this table.

Com. Dr. Githu: But Mr. Chairman sir, you know it has been suggested - Professor who as you

know I have the highest regard for, it has been suggested that Professor Salim should go and

draft some portion on the history and my good neighbour Professor Wanjiku Kabira will also

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join him to that committee, I am sure both of them will do an excellent job, but it would distort

the working system. Let them sit here and now as we are working and formulate something,

adopt it and we move on.

Com. Hassan: Point of order. Thank you Mr. Chairman. I think the problem we are having is

that this task force unlike the other thematic groups have gone and purported to do what should

have been done by the technical team of the draftsmen. Because in other thematic groups, I think

what we have done is we have simply listed down the recommendations on each of the topic and

I agree with Professor Okoth-Ogendo which when he says that perhaps we should give more

thought to what should be the recommendations and the conclusions under this heading and

leave the language of drafting to the draftsmen. So let them bring back to us a draft document.

Because we will be wasting a lot of time if we have to urge on whether freedom should be there

or fair should be there or women should be there, I mean it is going to take time, so let us just go

to the principles and agree on them.

Com. Salome Muigai: Thank you Mr. Chairman, I do believe the gender is a principle and we

should agree on it as it is now. It took the Americans quite a long time when they thought they

had the democracy which was the government of the people, by the people or for the people to

bring in the women. So please can we start as we mean to go on that our Act has to be gender

sensitive in all our activities and just agree that gender as a principle needs to be part of the

preamble.

While men and women were doing all those struggles, please be informed that the women had

also their struggle which we would like to be part of this. Thank you.

(Reaction from the floor)

Prof. Yash Pal Ghai: We were going this way so can we continue. Raiji on the floor and

whoever else wants to - -

Com. Maranga: Mr. Chairman, I wanted to go the way it was suggested, that we follow the 1.7,

that will give us the way forward. Mr. Chairman the first thing we will need to agree is the

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format of that preamble. I think we agree on the format or we suggest a format which is

acceptable to all of us, then the committee can re-draft what they have done down there.

Mr. Chairman, I want to disagree abit with what Isaack suggested that we need not have that

proposed draft provision. Mr. Chairman, it is a good guiding principle to the drafters. They will

be able to see what we intend to achieve at the end of the day. So I think the Thematic Task

Forces should continue and do that but then it will be for the drafters to tell us exactly whether it

is okay or not.

Mr. Chairman I want to comment on number two, that we need to have about five major issues

which must be recognized in this draft. First, Mr. Chairman we need to recognize an economic

factor within the preamble, political factor within the preamble, cultural and so and then the

Chairman, where they say national values, Mr. Chairman we need to recognize those national

values rather than leaving them to chance. We can State some of those national values which

we feel are very very important.

But Mr. Chairman I have a problem like when we have a statement like determine to live

together in Peace and Unity, what about if we decide not to until the Constitution is in place? So

Mr. Chairman, I think we also need to have a language which is neutral so that it is not forcing

people to be together. Mr. Chairman I have a problem with the word Nation. Nation Mr.

Chairman has a problem to me because even if you define the word nation, Mr. Chairman there

are nations which are close to Uganda, there are others which are close to Tanzania, so I think

this word nation, we need to treat it with caution and maybe use either our own name like Kenya

again, or we use the word State so that it becomes clearer. Thank you.

Com. Abida Ali: Thank you Chair, I am wondering whether we should now consult our

drafters and find out whether they are comfortable with our proposed draft provision or they

would like us to stick to 1.7 so that we see whether there is a need for the other task forces to

come up with a format on the proposed draft or simply with the tentative conclusions. Let us find

out what they think is appropriate. Thank you.

Prof. Yash Pal Ghai: That is an excellent suggestion so could we have one or all of the Draft

persons express their views. Professor Crabbe would you like to - -

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Prof. Crabbe: Mr. Chairman, I think for our purposes, it would be desirable if know what the

Commission wants. For example it in State d a massive reference economics, the massive

reference to politics, the massive reference to national and cultural values. When we get there,

then we will try to formulate something and give a draft to the Commission to consider.

Prof. Yash Pal Ghai: So I see the support for one point on several approach is that right? I

notice that it is nearly 12.00 p.m. and I did say we would adjourn at 12.00, so if there are some

points on this and then we can conclude for the time been. Zein and then Doctor Nunow.

Com. Zein: My understanding chairman is that if we go by the suggestion which seems to be

having consensus that we go to 1.7 and leave the drafting bit to them. My understanding is that

they are supposed to come to us, showing different possibilities and options open to us, even in

terms of style and language. If it is understood that way that we shall still have an input in terms

of style and language I don’t have a problem with that.

Prof. Yash Pal Ghai: Well it will all come back to us.

Com. Prof. Okoth-Ogendo: On a point of procedure. Even if we agreed to 1.8, that matter will

still have to be reopened when we see the entire Constitution. This is the reason which I think we

should stick to policy and then the policy is the instruction, when the drafting comes back, we

will go over it again, so in a sense we are doing double work at this point.

Com. Dr. Nunow: Thank you Mr. Chairman. I think what is clear is that the 1.7 has to be as

exhaustive as possible regarding the issues we want to see featured in the preamble. And since

that is basically the draft persons have been put in the exercise, I think spending too much time

on the draft provision would be a for my opinion. Because we are trying to do what

they should have done and later we will have to again debate again on the proposals they give us,

so if we focus on the recommendations, we would move faster, and that we have to ensure that

the recommendations we give them should be as elaborate and detailed as possible so that we

give them ample flesh for whatever they prepare.

Prof. Yash Pal Ghai: Thank you. There is time really for only two very brief comments. So

Isaack first, Ibrahim and then I am going to adjourn.

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Com. Hassan: Thank you Mr. Chairman. I am going to limit my opinions to 1.7 again, the

conclusions which I think should be our mandate now. Most of Kenyans will have also told us

that we should recognize the work or the role played by freedom fighters in Kenya to achieve

independence in Kenya. even the Mau Mau freedom fighters in the Rift Valley, in Central

Province, in Eastern Province, have also come out in their groups saying that they have been

forgotten and that they are living in poverty and there should be some form of Commission for

the freedom fighters of this country. So I think we should have some statement capturing that

aspect of the freedom fighters.

Number two Mr. Chairman there has been a certain level of violence, political violence. We are

talking of the clashes in the Rift Valley, clashes in Western Kenya, clashes in the Coast Province

and these have been caused by the polarity and of politics in Kenya and maybe we need

to acknowledge that and the need for the healing of the wounds, have some reconciliation,

maybe some statement capturing that kind of atmosphere. I can see in South Africa, they have

tried to recognize that. Maybe we also need to do that. Thank you.

Com. Lethome: I have to speak before the Mwalimu. I take myself to be the principal here on

behalf of Kenyans and the drafters to be the architect and I have been advised by the only

architecture we have in this Commission that mine is just to give instructions as to what kind of

building I want. So my instructions to the architecture here is that I would like to see a preamble

that maybe will encourage Kenyans to resolve some of the problems that we have been facing as

a nation. We have always referred to Kenya as a nation of nations. We have never been a single

nation. So there is the issue of unity. We have been struggling against disunity, so I would like

captured in that. How it is captured, I think you are the experts you know how it will be

captured. You come back with the draft, I will approve it or disapprove it. Thank you.

Com. Dr. Githu Muigai: Mr. Chairman, I want to put a suggestion that I want us to consider

over the lunch break and see whether it helps us to save time. I have heard Okoth-Ogendo’s

suggestion. That we retain a distinct line, and I agree with it between tentative conclusions and a

proposed draft. on the other hand, I think it would be very useful Mr. Chairman for those groups

that have not yet presented, as they are formulating their conclusions, if a draft man was working

with them, and when we discuss the report in plenary, maybe we can have one go at it and

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instead of it going back to the drafts man, then back to plenary then into the report we could have

one go at it and the draftsman would be working with tentative proposals that plenary has already

seen.

Prof. Yash Pal Ghai: Well lets think about it over lunch, I do not want to delay those who want

to go for prayers it is 12.00 non, I had said we would adjourn at 12.00 noon, but - -

Prof. Okoth-Ogendo: (interjections) I am sorry, but the report of the Commission as opposed

to the draft Bill cannot have proposals. The report is a reason to attempt to explain how we end

up with the draft Bill. It is useful for this particular committee to have given us proposals but

when they write the chapter as part of the report, I would hope that those proposals will not be

there.

Prof. Yash Pal Ghai: Well I think those reports been prepared we really cannot change format

very much now but I think the general principle is that we discuss policy questions here and then

drafting is done by the drafts team. I have already said that if some reports are written as if there

were drafted then the drafts men are completely free to use whatever style they have adopted for

the over all document. So I do not know whether we now have the report from committee IV. Is

it available? O.K. with the way we are making progress we may as well still be discussing

committee I. I had hoped that we could have disposed of this completely then we could have

turned to committee four which is fundamental rights. So we will of course continue with

committee 1, but I understand that the report of Committee IV will be available during the lunch

hour and then those of you who have time can start reading it and with that we will begin the

discussion before the end of the day.

Com. Bishop B. Kariuki: (Inaudible)

Prof. Yash Pal Ghai: Can you raise this after lunch?

Com. Bishop B. Kariuki: Mr. Chairman Dr. Mosonik did talk about Kenya being a Secular

State but I want us to remind ourselves that even the national anthem does recognize God and

the issue of secular State has to do with the State being independent from any religious work

so we should not forget to put God somewhere.

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Prof. Yash Pal Ghai: It is the last point. Is it necessary to say it now rather than after lunch?

Com. Kangu: Mr. Chairman, I am a little worried about our budgeting of time and I would have

thought that if we can allocate time, people push and finish reports then we schedule days

following each other of discussion because now this discussion has taken away time that we

would have been putting into the unfinished reports in the task forces. I do not know how that

sounds to other members but I think we would rather give priority getting the reports ready

before we can pick them for discussion following each other.

Prof. Yash Pal Ghai: So lets us think about this two and discuss them after lunch so I wish you

a good and productive break and we meet at 3.00 O’clock..

Prof. Yash Pal Ghai: I think we can resume our meeting. When we adjourned we were looking

at the proposals for the preamble. What we now have is a four paged document which puts

together all the recommendation of group one and we thought it would be simpler to work from

this and the document that was presented this morning but of course your free to look at those

though that report basically provides justifications for the recommendations so we though that it

would be useful to pull out the recommendations for the purposes of our discussions.

Now, I want to ask if anybody has any further comment to make on the preamble. Preamble we

decided that we would basically look at the policy, rather than look at the drafting and we have

added a number of points based on our discussion this morning. Can we move on to the

interpretation of Constitution or - yes?

Com. Lethome: In the report the name God has been captured two times but I can see in the

summary that we have now, the name God has been dropped, so I hope it will be captured also

and this was emphasized by Kenyans wherever we went that in the preamble we should

recognize God.

Com. Zein: Let me say Chair that some of the things that are appearing under the draft were

actually the most substantive issues we have from the people apart from the design of

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mechanisms. For instance what he is saying, so we will need a little more time to go and reverse

them, but this is an effort to just facilitate discussion.

Com. Dr. Githu Muigai: Mr. Chairman here all we would want the drafts man to capture is the

idea that we think that guidelines are not without some benefit, but we would like to keep them

reasonably opened, so that they allow a creative interpretation of the Constitution.

Prof. Yash Pal Ghai: I would like to raise one point myself discussion, I don’t have a very clear

mind on this, but in Papua Guinea, the Constitution stating the rules of interpretation sound word

like this, also said that those who interpret the Constitution may refer to the report of the – in this

case it is called the Constitutional Commission. I would hesitate to say that and I don’t know

what the latest session here is, but I do know that Common Law code can be very conservative

about what material they allow and reference to our report might enable the broad purposes

behind the particular provision to be explored. But I also know that it does not always work

very well and it is also possible that conference will change some of our recommendations and

then I don’t know how much time, how much re-writing of the report will be there, so there are

difficulties and in Papua Guinea the have then accepted all the proposals and yet the

report is theirs. So I have no very strong views but I wanted to raise this as a possibility we might

just discuss very briefly.

Com. Kangu: Mr. Chairman, I think this may also be a place at which we can settle the question

of the role of International Law in interpreting the Constitution. Two, we will need to settle the

question of foreign decisions. The general approach would be and what we have been following

in our system - the Common Law system has been that foreign decisions are only over

persuasive values and I do not know whether or know we cannot say in such a statement or

such a section that we give a little more value than just persuasiveness particularly in this age of

new Constitutions and most of which will have sometimes sections that are almost similar.

For instance if Uganda has interpreted a certain section that is almost similar to ours in a

particular way, is it reasonable for us to say that we need not look at their interpretation?

Com. Raiji: Thank you Chair. I think on interpretation I would for my part propose that when

drafting we should specific cause altering the clause that in interpreting the Constitution, I

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think there should not be undue regard to technicality. I am saying this because as a practitioner

I do not know that a lot of Constitutional matters were not able to take off because the courts

took an extremely technical approach in order to defeat certain rights that were only conferred in

the Constitution.

Now, with regards to the issues Chair that you raised about referring to the report, I am not sure

myself that it might be - - I think that whereas there might be some value, the problem is that the

report itself not been a very technical document may have been open to so many things, so

maybe the best thing is we leave it out but I believe even under the present State of law, the

courts would probably refer to it if there is confusion or ambiguity. But lets probably not put it in

the Constitution, because that may be it is like we are now transferring the responsibility from

the courts to the report.

Prof. Yash Pal Ghai: I believe your first point is actually captured in this recommendation but

we can make it clearer if you like.

Prof Okoth-Ogendo: Mr. Chairman I am interested in two things. One, who has the authority

to interpret the Constitution and with what effect? The implication here is that is the court doing

so? If that is what we want to say let us say it because there may be other agencies that purport to

interpret the Constitution. There is a great deal of literature on who interprets the Constitution

that argues this point out and I would like this to come out.

The second is the principles that should be adverted to in interpreting provisions of the

Constitution. The Chairman has indicated some, others are indicated in the text of this thematic

groups presentation but we wan to define those principles not so widely as to make it unwieldy

but also to take account of the growth of Constitutional jurisprudence worldwide and I would

want us to look at the literature not just on globalization, but also the globalization of

Constitutional values world wide and see if we can draw our principles for the interpretation of

the Constitution in that section.

My third point relates to John Kangu’s one which I believe is best covered in the section on the

legal system. What law applies – when a court sits down to apply the law and not just

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interpreting the Constitution what are the applicable laws that the choice of law questions which

I think we should deal with under 6. Thank you.

Com. Dr. Githu Muigai: Mr. Chairman I want to share with Commissioners a discussion I had

with Professor Crabbe and his colleagues about what possible aspects of interpretation could go

into a provision like this? And they suggested and I thought it was a good idea, that one of the

things that could go into that is just a definition and Charles Maranga is not here but he was

concerned at some point about definitions and this is been put in the bag just for consideration.

Definitions, “for purposes of interpretation of this Constitution, a President shall ------- “

The other point Mr. Chairman and by way of summary, I am aware as most of us here are, that

this whole question of what arguments do lawyers use to interpret the Constitution is a very

controversial subject. Professor Bobbit’s book on Constitutional phrase identify 7 different

argumentation that lawyers have: the Ethical Argument, the Historical Argument and the

Doctrinal Argument and so on and so forth. I don’t think that that is what we have in mind. That

we can have a Constitutional provision that purports to anticipate the theorization that can be

made in order to support a Constitutional argument. I think we should remain, I suggest Mr.

Chairman, on the narrow question of, and I agree with Raiji on that and to some extent with your

Sir, that we want to suggest to whoever is interpreting the Constitution, that it must be a liberal,

broad, purposeful interpretation and then leave it at that. Thank you sir.

Com. Ratanya: Yes, Mr. Chairman, when we are talking about the interpretation, I thought

maybe of two levels of interpretation, maybe one is interpreting the meaning of the Constitution,

that is covering the whole document, and the other level is interpreting Constitution per chapter.

So what do we want to adopt? Because if I refer to the current Constitution, I can see we do not

have such an introduction or introduction definitions but in chapter nine, roman IX, Trust Land

Act, we have the interpretation of that particular chapter but we don’t have any interpretations in

other chapters. So when we are thinking about this Mr. Chairman, maybe we consider what

whether we are interpreting - - what do we mean by the Constitution? Do we define the

Constitution and then after every chapter, we also have an interpretation of that particular

chapter.

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I think also with another example, with our own Review Act chapter 3A, there is a section of

interpretation and this is very good even to a lame man like me, number 2, who is a chairperson,

Commission, Commissioner, presidency, these kind of definitions are very very important and I

think this would even simply the text to whoever is going to read the Constitution. Thank you.

Prof. Yash Pal Ghai: This is the point that Githu made. Can we leave it to the draft persons to

see what is the best way? There may be some value occasionally in having a special definition

for a particular chapter, this is a technical matter and maybe we could leave it to the draft person

to see what they are comfortable with and to see what there are comfortable with.

Well, can we move to the next recommendation which I am sure will occupy us for a while? The

Directive Principles of State Policy. Again I give Githu two points.

Com. Dr. Githu Muigai: Mr. Chairman the only thing I would like to do here is share with my

colleagues, because a question was raised and my brother Zein did make a comment about it.

How were we able to summarize the views of the people? and Mr. Chairman, this file that you

see here, is what we got from our data people. This portion that you see here and I will be

sending it round so that everybody can see it, is the portion dealing with Directive Principles of

State Policy.

Now, one of the slight difficulties that I alluded to earlier, is that the views of the people are

presented in terms of a summary and rightly so in my opinion, but it is a repetitive summary as

well. So, in order to capture say one or two principles, you would have to go through say 15 or

20 pages of almost - and let me just give Mr. Chairman in one second, this is what it says; the

constitution should be the supreme law, that is one guiding principle. There should be a

principle capturing national philosophy and guiding philosophy. Constitution should recognize

Kenyan sovereign and then that is repeated in several other places. So, what we sought to do

was after reading through a whole set of these recommendations, we would try and get like four

or five of them, that are really at the heart of the debate and then we would move on. Thank you.

Prof. Yash Pal Ghai: I will maybe take the liberty of starting with some comments myself. I

think we should – having listed the Directive Principles, indicate there status, whether there are

binding, how much notice courts and other bodies can take of these, are there any reporting

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obligations because many constitutions require the government to make an annual statement to

say how far they have been achieved. So we need something on that.

The second point I want to raise is whether we should put all these principles in one section.

What I have in mind, which would be my preference for all this work is that we should put the

over-arching principles fairly early in the constitution and we can call them Directive Principles

or Principles of State Policy or whatever but then some of the most specific Directives can be

used to open up a chapter. Rather than we have a chapter from the judiciary, we might have two

or three broad principles as to what the judges are supposed to do, what the system of justice is

for, similarly when we look at security forces we might have some statements on the role of

police and the Armed Forces and things like that. So, the question is, do we put everything in one

section and then we start other chapters without direction as to how the particular institution is

supposed to work. I think Githu those are the two points I want to raise at this point

Com. Bishop B. Kariuki: Mr. Chairman, I realize that in most cases when we come to the

Directive Principles, we might be lost in thinking the more substantial things that are put in other

constitutions but I personally would like to see in the Directive Principles, things that will force

the State to do certain things in terms of raising the standards of living of our people. For

instance, I know in India today, the judiciary is doing a lot in trying to make the State

accountable onto the things that it ought to do to the people. for instance, if we have so many

robbers in Kenya, and we have a lot of them because there is unemployment, does the penal code

continue to be so stiff onto these people when it is the government which has not provided the

basic facilities?

What I want to say, I would like to see something like health care, things like education, things

like employment, things like security, been part of the Directive Principles. I am very particular

on that because sometimes we think about rule of law but some of these are very abstract and it

is the very same thing that the citizens will be put to jail for many years for stealing while in

actual fact it is the State which has not provided the means.

Com. Yash Pal Ghai: If you look at page 28 of the report, you will find that most of the points

you are making are included. One other point I would like to make following from your

comments is that my own wish would be that the social and economic rights which are

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traditionally treated as matters of Directive Principles should also be part of the Bill or Rights

and therefore there are binding because I think to leave these social economic rights, education,

employment and so on, purely a Directive Principle will carry less weight than if there were

included in the Bill of Rights and we are all required by the Review Act to ensure that all

Kenyans that the basic needs are met so I think we have to make them legally obligatory. We

can certainly have them in Directive Principles, but I would like them also to feature in the Bill

of Rights.

Com. Bishop B. Kariuki: - - The citizens can go to court. For instance if I have no basic

facilities, if I cannot take my children to school, and it is in the Bill of Rights, I have a reason to

go to court to say that this has not been provided for. Now, but due to the state of economy

today, how are we going to enforce that? I thought it would be good if there were in the

Directive Principles because we can raise issues that the system cannot answer.

Com. Yash Pal Ghai: Well this is a very complicated issue and I think this may come up when

we look at Human Rights Provisions but I see other hands up.

PLO Lumumba: Mr. Chairman, my view is that perhaps we at this stage, suspend the debate as

to whether they should also be in the Bill of Rights and confine the debate as to what should go

to the Directive Principle, otherwise we will be derailed and we will begin debating and

anticipating debate on that particular report.

Com. Yash Pal Ghai: Well I am in content with that but let us see here.

Com. Prof. Okoth-Ogendo: Mr. Chairman, let us discuss what we have in front of us and

consider the alternative ways in which the motive can be used. What the chairman has proposed

is that there should be a section with Directive Principles but those Principles are Principles that

run right across the constitutional structure and when for example the principles relating to

exercise of executive authority are included in the chapter on the Executive, they take a different

character. They may be used there as a basis for evaluating the exercise of Executive authority

than if you left them under something called Directive Principles. So I think we are saying these

are matters that can be spread right across the constitution. You can spread them in organs of

government, you can spread them into basic rights and so on and I think once we agree that in

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terms of presentation we just don’t want to have one section called Directive Principles which is

not justifiable ,but taking some of them and making them part of the principles that ought to be

used to evaluate the exercise of specific powers. Then the draft people can give us alternative

presentations which we can look at. I am myself attracted to the fact that if you are able to make

as many as those principles as possible as a basis for evaluating the conduct of government, the

conduct of the judiciary, the conduct of constitutional commissions, the conduct of all kinds of

organs of the State, you give them much greater strength and value, than if you simply just make

them inspirational in a section called Directive Principles.

Com. Yash Pal Ghai: Please only if you still think you need to add to the points you had made

before.

Com. Kangu: Professor has said what I had in mind but only to add that there are matters that

go to the structural arrangements of the entire constitution. I personally say that no amount of

clauses about how the people have a right to food, in the Bill of Rights, without the rest of the

structure putting in place systems that can run the economy in a manner that gives people those

things, will give them this food and I believe that when we reach the task force dealing with

national resources and the economy, we will also have a lot to do with what is in the Directive

Principles and how to put in place structures that can implement them.

Com. Nancy Baraza: Mr. Chairman, I just want clarification, I may sound ignorant but what

harm would we suffer if we make Directive Principles justiciable like it has been done in South

Africa? If I can quote you the case of Republic of South Africa versus Grout Ought.

Prof. Yash Pal Ghai: (Interjection): That was achieved by making them part of the Bill of

Rights.

Com. Prof. Wanjiku Kabira: Thank you Chair. I know I have seen that in the second last

bullet, where we have principles of freedom, equality and justice for all. That may cater for what

we are looking for but I don’t know what harm it would have if we added in the last bullet,

secured a State for ethnic, gender, regional diversity.

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Prof. Yash Pal Ghai: O.K. Well it seems to me that we have broadly agreed then on the list and

as amplified by the box on page 28 and 29 and with that can we move on to the next

recommendation on the sovereignty of the people?

Com. Dr. Githu Muigai: Chairman, our view on this is as captured on page 32. I think that we

as Kenyans come from a history and a tradition where probably we feel that the fundamentality

of the people as the organs from whom sovereignty arises has been taken fore-granted and

therefore I can understand the concern of those who feel that there should be a provision securing

that. We did not feel that it is something that should be overdone and we thought that a simple

straight forward principle like the one we have recommended is sufficient.

Prof. Yash Pal Ghai: Are you through Githu?

Com. Dr. Githu Muigai: Yes, but my colleague has drawn my attention to a typo on the

Executive summary. Wanjiku says that sovereignty of the people – she says under the first bullet,

under a preamble there should be – she says “Is that a legal word?” “Recognination, is it a legal

word? I think it is a typo because we were working under a lot of pressure.

Com. Prof. Okoth-Ogendo: It is elegant this days to talk about the sovereignty of the people.

But I would like to be persuaded that this is no more than an aspiration statement that is better

associated with these than constitutional making experts. I mean what is the people, who

are the people, what is all this craze about the people?

(Reaction from the floor)

Com. Bishop B. Kariuki: Mr. Chairman, I think I also have the same problem because it is just

a sentence there without really much meaning, but also it has been used in the past to invoke

people in a way that has been destructive to their own aspiration. My problem with the

sovereignty of the people, is the whole question, how do you insulate the government against the

sovereignty of the people? because in a way it can be used to destroy the structure that would be

able to help them. So I think we should get this two together while we accept the sovereignty of

the people, how do you insulate?

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Like for instance, let me give an example. We don’t, - maybe two months more or three months

more would have been good for us to come up with a document and go for elections with a new

constitution. But somehow because of the sovereignty of the people, they have been told, no,

every five years you have to do elections and it is like a mob justice so that even what can benefit

them cannot go through. I think that is my problem. How do you insulate also?

Prof. Yash Pal Ghai: O.K. I have a list here. Wanjiku, Mutakha, Secretary,

PLO Lumumba: You may think it is not procedural but it is procedural. My argument Chair is

that we are in danger of having an open ended debate on who the people are and therefore I

would ask that, number one:

Those who are contributing consider whether in whom do we want sovereignty to repose. And if

they have alternative views, to consider presenting and placing those views on the floor

otherwise it is a debate that can go on as to who the people are. Thank you.

Com. Prof. Wanjiku Kabira: Thank you Mr. Chairman. I think I am very sure on whom the

people are. They are the ones I have been listening to and what they have been telling us is that

we have actually taken away the power from them. Issues of the rights of recall for the

councilors and MPs were are a simple indication that they want back the power to themselves.

Even making decisions on how they want to be governed and so on. So I don’t know whether

we have any doubts. I was with Kangu a lot of terms in Busia so I don’t know why he doesn’t

know who the people! I think we met all of them.

Prof. Yash Pal Ghai: John, I think we know your views by now, so please be brief.

Com. Kangu: I will be very short. Mr. Chairman, Professor Wanjiku is wrong, we did not meet

all the people. But that is why I have said we must find who are the people and my position is

that if we define the people properly, then we will accept that governance is representative and

our task will be therefore to ensure that we structure the representative governance as to be able

to serve the people. There is no way the people will ever be able to run government themselves

because the initial act of inventing government was because certain people could not do certain

things on their own behalf and someone had to do them for them, so people is wider than just the

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people we talked to, people includes the future generation, we are supposed to run the resources

we have today, as to spare something for the future generation and they are part of people.

People include our babies who cannot participate in this, and my fear is that infact it is this

assumptions that this is a simple term that has lead to governance problems. That those who get

into governance or participate in governance matters, in a representative position never realize

that infact they are representatives and must therefore perform their duties as to serve the interest

of the people and we will need to even find out who is representative because quite often we

think it is those we elect but even us in electing, we act in a representative capacity.

Prof. Yash Pal Ghai: You are saying that they are representatives and who are representatives

of the people. I mean we don’t need to I think go into - - we are not here using the people in a

very legal sense. This is a broad statement of a democratic principle. We have been taking of the

people driven. Everybody has been saying how can you write a report unless you have analyzed

all these submissions, so we are acknowledging the sovereignty of the people. I see no harm in a

statement like this because it acknowledges the fundamental democratic principles, people vote

at elections, we might say give recall power so I don’t think this is a section which is going to be

looked at to see how particular organs of government work. I don’t think we could get into those

complications. It is an important democratic principle and I would suggest it would be very

odd, if our constitution, written in this day and age through this process did not somehow

acknowledge the people in this way.

Com. Kangu: That is what I have said. That the report must have a good definition, so that

when we refer to the sovereignty in the constitution, a reader who goes to our report is able to

understand that we recognize this wider concept or inclusive concept of people and we

recognized the concept of serving the welfare of even those who are not able to participate in

governance. So, that has to be in the report but in the constitution I don’t mind our saying that we

are the source of power.

Com. Prof. Okoth-Ogendo: Mr. Chairman, I don’t want to prolong this but I am worried about

two aspects of this question. One, when we talk about the sovereignty of the people and we are

also going to be talking about constitutional supremacy, we are going to talk about the concept of

the State, then my worry is where is the legal persona in which the sovereignty of the people

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resides? We are going to discuss issues of land and I am sure that this issue is going to arise.

That land belongs to the people, what does that mean? The Ugandans think that they have gotten

around it by saying land belongs to the citizens of Uganda because citizenship is a juridical

concept that you can handle. But when you are talking about the people, what exactly is the

juridical persona that you are dealing with?

The second one is the point Mr. Chairman you have mentioned; as a democratic principle. If you

are talking about sovereignty of the people not as a juridical process but as democratic principle,

how is the sovereignty of the people as a democratic principle manifested in the processes of

exercise of power in which case, that principle may have to be cut out in little bits as parts of the

Directive Principle and attached to the various organs of government, so you are saying, that the

Executive is responsible to the people, Parliament is responsible to the people, the judiciary is

responsible to the people and so on, so that as a democratic principle it is also going to be part of

the Directive Principles and these are some of the issues that I think we have to deal with. But we

cannot just throw the people in because this is a 21st Century constitution.

Com. Githu Muigai: First Mr. Chairman I wanted us to caution ourselves, and you have

mentioned this sir, professor Crabbe made reference to it also. The constitution is both a political

statement and a legal document. But in as much as we should not make it a dense legal text

inaccessible to anybody but lawyers, we shouldn’t make it a political pamphlet in which all

manner of political slogans are thrown in for their emotive value.

Power to the people is sloganeering and there is a place for it and that means in my very humble

judgment is not within the constitution. Yet Mr. Chairman, I would agree with you that the

recognition of the essential, the fundamental nature of the people’s ownership of their own State

and all the institutions that they erect on it can be recognized so that what I think we must do, is

to get a happy media between opaque legal principles and cheap political sloganeering. I don’t

think Mr. Chairman and this is my last comment if I am allowed to finish. I don’t think we want

a constitution that reads like the constitutions of the former Soviet Union. You open a

constitution and it reads like a prima in political ideology. The Soviet State shall be this, shall be

that. Where there is no congruence whatsoever between profess commitment and the reality.

Our constitution must accord with the reality of our political life. We are erecting a

representative democracy.

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The people of Kenya periodically will elect persons to represent them in various institutions. We

must leave it at that.

Prof. Yash Pal Ghai: I thought your formulation has captured that, I mean not so much in the

recommendations but if you look at page 32, you say people’s and shall be exercised

in accordance with the will of the people as provided in this constitution. So I thought we had

indicated that -

Com. Dr. Githu Muigai: (Interjection) I was quite happy with provision Sir.

Prof. Yash Pal Ghai: Well, that is what I am supporting.

Com. Dr. Githu Muigai: I am happy we are together!

Prof. Yash Pal Ghai: O.K. then the next issue is the question of constitutional supremacy and

again Githu if you would introduce us.

Com. Dr. Githu Muigai: The present constitution, - I am looking at page 36, ladies and

gentlemen. The present constitution acknowledges the supremacy of the constitution over all

other laws and what we though we would want to do was to place some portions of the

constitution as part of that supremacy beyond the amending power of a transient parliamentary

majority and I think that that is the only controversial issue Chair.

Prof. Yash Pal Ghai: It seems to me that I think the general principle is fine. I would prefer

myself to leave for later discussion on the actual amendment procedure. I think once we have the

idea of the whole constitution as it were, then we can see which - - but I think the general

principle seems ……..

Com. Kangu: A lot of these amendments that – on the binding effect, the proposal here seems

to be suggesting that the constitution would only bind the organs of State and that it doesn’t bind

us between individuals and I think we should not make that mistake. We should have both

horizontal and vertical bindingness.

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Com. Dr. Githu Muigai: Mr. Chairman you will want to protect us from John (laughing) here

because we have suggested that all Acts, and I think the drafts men I must apologize to Margaret

- the drafts woman and the drafts men, it is for them to give the specific rendition but all Acts, I

leave that to them.

Prof. Yash Pal Ghai: I will remind you that even the people are bound to the constitution.

(laughing) I think the draft persons could notice that the constitution binds everyone, not just the

State organs.

Then we get to the question of the legal system and I believe – sorry.

Com. Dr. Githu Muigai: Mr. Chairman again here and I know that there were comments made

of a general nature before we broke for lunch. Our understanding of our mandate here is that we

would try to rationalize in the constitution, the sources of the law of Kenya. if you look at the

executive summary that we prepared over lunch, we tried to shift our positions slightly to accord

with what we though plenary was saying, which is define the legal system and then gave the

sources of the law of Kenya and I would like members to look at for example, at the bottom of

page 38, we were looking at the example of say Papua New Guinea where the constitution

defines what is the law of Papua New Guinea? The constitution, some other creature it calls the

organic law, the Act of Parliament and so on and so forth.

We thought that that would help to probably, - I was trying to persuade my colleagues by saying

for example, the man who is governed by ‘Agikuyu’ Customary Law, I would hate to imagine

that one morning, Parliament may wake up and abolish the application of Kikuyu Customary

Law by repealing the Magistrate’s Court Act, or the Judicature Act. I would like to know that I

am assured of the application of this law to me by the constitution, but again we will leave it at

that.

Prof. Yash Pal Ghai: Prof, Raiji, Nancy.

Com. Prof. Okoth-Ogendo: Mr. Chairman my concern has always been that this is our

opportunity to break away from what I consider to be a very insidious oppressive formulation of

the Common Law of England Doctorate of Equity and the Statutes of General – and all that

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crap! I think it is time for us to get the courts to be creative and to develop what I am calling the

Common Law of Kenya. So in stating what the character of the Kenya legal system is supposed

to be, I think it is important that we should cut those apron strings, - let them find a law from

wherever they are. Let them go to Australia, go to France, go to the Soviet Union and what have

you, but develop a common legal system of the country and I agree with Githu that certain

aspects of our law are so fundamental, are so important that you don’t want to leave it to the

legislature to wake up and throw them out and the last thing you want is the kind of reasoning

good as it was in the Wambui/Otieno case, that suddenly now says that we have two great

branches of law that must operate side by side. It should never be necessary to have to argue as

to whether or not the Common Law of England is supreme to Customary Law. After all the

Common Law of England is the Customary Law of the English people and we have to now take

that very bold step and get our courts to understand that we have developed a law in this country,

and that law has to be found here even if we have to create it.

Com. Raiji: I think I had been recognized Chair? Thank you Chair. I think and I did mention

this during lunch hour to my colleague Doctor Muigai, about the sources of the laws. As things

stand at the moment, I fear that if we have to put all these sources into the constitution, then it is

necessary to indicate which has priority or the hierarchy, because at presently worded, we do not

know for example whether customary penal law does apply, we don’t know what aspects of

Islamic law apply and so forth and if left like this it would give rights to serious internal conflict

of law.

I would for myself propose that – I agree entirely that we need to recognize the place of

Customary Law, but maybe other than some general formulation, and leave it to a Statute to

work out the pecking order of the various aspects of customary, Islamic and Hindu laws that we

intend to apply. I have no quarrel with our policy in the English Common Law developing ours.

Prof. Yash Pal Ghai: Nancy?

Com. Nancy Baraza: Thank you Mr. Chairman, I think I will agree with Professor Okoth-

Ogendo and my learned Senior here that we need to find a way of drifting away from the English

law, which to many Kenyans it is irrelevant, it is alien and personally I would say Mr. Chairman

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that it has been the source of confusion in our courts trying to interpret our Bill of Rights,

Section 84, that one of the contributing hard factors has been the so-called principles of English

law and the doctrines of equity and I wish we could look for a way of drifting away from that.

Com. Prof. Wanjiku Kabira: Thank you Chair. I want to agree with Okoth. I know I will not

be responsible in creating the Kenyan Common Law, but I believe – I was telling Githu in the

morning that I think it would be a very thing for us to come up with a position like that. I am not

been a lawyer, I always feel more or less offended when things are based on the British law, so I

think this would be a beautiful thing if it can happen.

The other thing on Customary Law, although ultimately I don’t know whether these are going to

be in the constitution, I would hope that as we retain it, we will also put some kind of a

recognition of the role that Customary Law has played in relation to women. To its

discriminative nature as far as women are concerned. So if we retain it then I think we need to be

able to take that into consideration.

Com. Bishop B. Kariuki: I just wanted to understand from Okoth-Ogendo, although

unfortunately he did not teach me. When you say that one of the sources of Common Law would

be the Kenya Common Law. My first question is, we know Customary Law as a source, we

have it. Are we assuming that we have Kenyan Common Law as a source now or is it something

that we are going to develop. That is the first question. If we don’t have it now as a source, are

we going to say we will have Kenya Common Law as a source once we develop it?

The second question which I would like maybe in my ignorance to understand, is that some law

has been developed out of judgment of court from the Common Law and there will be always

points of reference as doctrines of equity. What we are saying now, if they do not become

sources of law any more, is the legal system not going to have some difficulties in that you are

trying to cut something, which is your life already. That is where my problem is.

Com. Salome Muigai: Thank you Mr. Chairman I also wanted to seek clarity especially on

application of the Customary Law because Professor Wanjiku says it can also be a source of a lot

of discrimination that we are addressing in the fundamental rights. For example, the only times

when sons don’t inherit under our Customary Law is when probably they have disabilities.

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The Customary Law has got very rigid ways of looking at the child and we are trying to look at

ways of dealing with the international instruments and what they say about children as well. I

don’t know when we adopt Customary Law as a source of laws of Kenya, where we put the limit

onto what it is that we are adopting and what we are adopting. How does this work? If for

example, if I refer to the Kikuyu Customary Law, when does it say that we can follow

Customary Law and what it says about land and what do we do about that land when we are

dealing with children with disabilities, when we are dealing with women, when we are dealing

with rights of some vulnerable groups that have been marginalized by the same custom?

Com. Zein: Thank you Chair. I was a member of this group and I had hoped that one of the

items, which created a lot of intense debate in our group, and finally we came with the

formulation of leaving the hierarchy aspect of it out and build a consensus would not recur at this

point, we would have waited until the group dealing with how to domesticate international

treaties and also deal with aspects of human rights but since Commissioner Raiji has raised the

issue, I would like to raise the following questions.

Number one we will need to look at this question Commissioner Raiji is raising in terms of

hierarchy. Creating this hierarchy. I would have been very happy and pleased if he had some

form of proposals then we can start putting laws in them in terms of what laws would come first.

More importantly, three aspects. Number one, if we start saying now that we need to put a

hierarchy, then there will be a competition of now entrenching rights in the constitution because

we have already said the constitution becomes the supreme law of our land and we are going to

give it supremacy. That has already been agreed, therefore, there is already a form of hierarchy

here in a sense that the constitution supercedes all these other laws but if there is going to be

people developing some idea of hierarchy, then we will start debating as to what will be then

entrenched in the constitution box, therefore it becomes supreme and it does not matter what

other law comes under it.

Related to that would be, are we going to have a hierarchy or rights? So that when we are

dealing with the Bill of Rights, are we also going to say we should include hierarchy in the Bill

of Rights?

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Thirdly Chair, that when we start dealing with concepts of hierarchy, we will have to debate

now, each and every law and its extent and to what extent is it applicable to which people, to

what group of people and so on and so forth. My first instance if I was told hierarchy I would

say; “O.K. put in international where it is and say that is a hierarchy” then we can negotiate the

other things as we go along. But this debate, I did not want to go into it now, but if it is necessary

let us open it now.

Com. Ratanya: Mr. Chairman before we heard from Professor Ogendo, I had a problem in

trying to ask the definition of Customary Law. Because here the group has recommended that

with the sources of law of Kenya, including the Customary Law, all the other groups of law as

far as I know are written law. But the Customary Law , I don’t know what is customary unless if

we would refer to maybe Judicator Act, you can find that one as African Customary Law and

only recognizes the civil cases. So If we go ahead promoting and also making research and

developing African Customary Law, that might as well include criminal cases. Because as for

now even if you go to court trying to defend on Customary Law on criminal cases, the

Customary Law will not have any place, but with civil cases in accordance with the Judicator

Act, it will have a place. So I praise and I support what Professor Ogendo has said.

In our recommendations finally, we should consider and recommend that the Customary Law,

that is our Customary Law should be developed, maybe in future to come in the status of Statute,

or written law by Parliament, and we should not only be proud of the English Customary Law.

What we refer to as Common Law is actually British Customary Law and we should not ignore

our African Customary Law.

If there is any law in Statute, that come and contradicts the constitution, then you know that that

is not law and therefore there is no fear in developing Customary Law, it will not discriminate

women, it will not discriminate the disabled because there are civil guides but it should be

developed and I recommend that we should recommend the Customary Law to be performed

further after 40 years we will not have any recognition of Customary Law. Thank you Mr.

Chairman.

Prof. Yash Pal Ghai: Thank you. Githu and then Kangu and then I want to try to sum up a

little.

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Com. Dr. Githu Muigai: Mr. Chairman both in my capacity as Convenor and as a

commentator, we concede the argument that as suggested here, our proposal is abit loss. I agree

with Ratanya, African Customary Law must be specifically identified. I also agree with Raiji,

that we must indicate very clearly that African Customary Law, Islamic law and Hindu law, are

applicable as personal laws. It is not the entire government, it is not the entire coppice of African

Customary Law or of Hindu law, or of Islamic law and I don’t think that that is contentious.

I was wondering, and this is my comment now, whether we can say the constitution Acts of

Parliament and subject to the constitution… we then set down the others. That is one query.

The other one is this, East African Community law and International Law are already part of the

law of Kenya and I doubt that there is much controversy there and I was wondering whether it

might not help Mr. Chairman then, if we took Okoth-Ogendo’s suggestion, about the Common

Law of Kenya and probably take care of Bishops concern by saying that the Common Law of

Kenya – in the definition section, shall comprise of …… and we go back to, upto this point, the

Common Law of England, Doctorate of Equity, Statutes of general application in force on the

reception date. And then in the transition provisions, we can put a cut-off date and we are home

and dry. Thank you Mr. Chairman.

Com. Prof. Okoth-Ogendo: Mr. Chairman, two very quick comments. I still find it terribly

offensive to tie the development of the law in this country to the law of England of the 12 th

August 1897, the day when the protectorate status was declared in this country and if for no other

reason, I would remove it, expunge completely from the system of this country and I would not

even define the common of law of Kenya to include the doctrines of equity and all those things, I

find it extremely offensive and I will circulate to Githu a paper I gave called the “Tragic African

commons” to justify part of what my anger on this is.

Secondly, the question of hierarchy I think we can deal with - -

Com. Dr. Githu Muigai: (Interjection) Before we move on Mr. Chairman, let the Professor

answer the Bishops concern. The day after we enact the constitution, lawyers want to go to court

and apply the law of contract. Where will they find it?

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Com. Prof. Okoth-Ogendo: They will find it in the body of jurisdiction which this country has

developed but they will not refer to it as the Common Law of England, the Doctorate of Equity

and Statute General Application. When you do that you are not saying that the law doesn’t exist,

you are simply saying you don’t want your judges to ascertain the law of England in order to

decide a decision in Kenya. That is all I am saying. There will be no vacuum.

Now, the question of hierarchy Mr. Chairman, I think the easiest way to deal with it is basically

(inaudible) principle the constitution clearly acts of parliament and then you can put the

Common Law of Kenya and quite often in time, the Common Law of Kenya becomes statutory

legislation. That is how English law has developed. What we are calling the Common Law of

England is statutory legislation in England and many other places, so the question of hierarchy I

think we can deal with it very quickly.

Finally Mr. Chairman what to me is important, is that this is not an area we want to leave to

ordinary legislation. I think it is time that the constitution defined the canopy of laws that are a

recumbent in this country and we can deal with questions of discrimination in the discrimination

provision of the constitution and this is what has been done. All the countries that have

recognized Customary Law have gone on to say any law that discriminates against all categories

of people will to the extent of that discrimination be void and we can handle that.

Com. Kangu: Now, Mr. Chairman when I first saw this particular part, I thought it was an easy

part to deal with. But slowly I am starting to realize that infact it is a very important matter

raising very very fundamental issues. Listening to commissioner Zein and Prof. Okoth-Ogendo

talk, a question of conflict of laws and choice of laws arises and it reminds me that currently

when many Kenyans talk about conflict of laws or choice of laws, it is in the context of private

international law, but we are not going to help, but also develop principles of conflict of laws and

choice of laws at the municipal level. Because when Okoth-Ogendo talks about the issues that

arose in the S.M. Otieno case, he is actually talking about issues of choice and conflict of laws

and if we don’t settle the question of hierarchy, we will be confronted with the question of choice

of laws, and sorting out the question of conflict of laws.

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So, we must be able to say if we don’t put a hierarchy, then we must put in the constitution, some

rules that will govern choice of laws in a situation of conflict and this is going to be more so

because we are not a homogenous society. We are a society that has so many different

communities with different customs and we are inter-marrying across the borders and sometimes

a question arises when two or even three marry, which Luo - if we say we are living Customary

Laws and all other laws at the same level, which law applies to the affairs? We must develop

rules for resolution of these questions of choice and conflict.

Prof. Yash Pal Ghai: Thank you very much, that was a most interesting discussion. Let me

make a few comments and then I would like to ask our two visitors on the drafting team, if they

would like to tell us very briefly about experience in their own countries because I believe both

of them had to grapple with the same issue.

I take it that the constitution will provide new values and those values must eventually find their

way into a legal system into our laws. We have much concern with gender parity and

constitution norms on that must inevitably influence the Customary Law, Statutory Law and so

on. So the constitution revises broad framework within which a lot must develop. So that is the

framework for the development of our Common Law.

I belie entire with the Okoth’s point of view about the need for a Kenyan Common Law. I think

we have to move away from English Common Law and even though the reception date is a

particular date, judges almost blindly follow the most recent British decision and I think we need

to move away from that. Because to give a fact to the constitution is the enormous details of

laws, we have to make a fresh start or at least we have to turn to new sources and new values.

I don’t know whether that is a very easy thing to do. I think it is a long term project but I think

what we can do in the constitution is to commit a court or a legislature, other institutions to

develop that Common Law of Kenya which will cut across Customary Law, cut across rules of

equity, it will be a long term job, it will require very creative judiciary, but what the constitution

can do is to set this task and now that group one committee has lifted this laws of Papua Guinea

as an example.

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Personally I would urge our drafts persons to look at or the Papua Guinea constitution,

which is the only constitution I know which made a very serious stand to develop the Common

Law of Papua Guinea. Because unlike us, they had English law, Statues, rules of equity and so

on and to develop the concept of underlying law which you see as the last thing listed there it

shows the kind of substitute for the Common Law. So it will be the law which would apply when

there is no legislation, and so on.

Courts have now done – it depends on the individual judge. Unfortunately I didn’t bring a copy

– I know this area well, but there is now some lighting and I have some of it in Nairobi, I should

have brought it here because this quite a very important, difficult area. But what they deed was

they need to say that we are no longer bound by the Common Law of England, as from the date

of independence, but we are bound by Common Law. But this is what Hong Kong did as well

until the transfer of Soviet to China. We had the English Common Law. The intention was to

keep that legal system essentially in Hong Kong, despite different legal system in China. So the

solution was adopted, was just to refer to the Common Law and the Common Law was seen as a

body of laws which apply in Kenya and Uganda and Tanzania and Australia and New Zealand,

so you have this choice.

Of course Hong Kong looked to what the Australians had done about theirs, what Ghanaians

have done about theirs and see what was the best for Hong Kong. When we adopt that, we will

develop it, you are not strictly bound by precedence of Overseas country in that sense. I think

that could be another way to go to formerly break up this. Of course inevitably for a period of

time, judges and lawyers will continue to refer to the English Common Law, but this will

encourage people to see what – have Uganda done something? What was in South Africa and so

on. So it frees the courts from the bondage to the British and you can look at other

places and you are then guided by the persuasiveness of their reasoning rather than just because

it comes from that could be another way.

I wonder whether the way forward is not to say for a drafts person can come with some kind of

formula, so the constitution commits our Judiciary our Legislature and so on to defending the

Common Law of Kenya. We might then have a schedule setting out some of the principles and

procedures, but it is clearly something that cannot be done overnight, it will require time and I

wonder whether our drafts person could do a little bit of research on this and come back to us

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with suggestions. It is also possible of course that some of the Common Law may fall

because it does not measure up to the human rights standard that we are setting up.

Some Customary Law may fall for the same reason. But before I sort of - I would like if

Professor Crabbe and George Nagota have something they want to speak on this based on the

experience of their own country.

Prof. Crabbe: I think we face the same problem which we are discussing here and what we did

is to define, move away from the English Common Law of England that we defined the

Common Law as including the Customary Law and the rules of the Common Law and the

doctrines of equity as established by our courts and we thought by doing that, the courts would

move away from relying on the English cases. So you have a definition of Common Law in the

constitution itself.

Then we have certain problems as far as the Common Law is concerned. For example, this

question of legitimacy and illegitimacy. We have certain societies which matrilineal and other

societies which are patrilineal. Now, if you belong to a matrilineal society, the question of

illegitimacy does not arise. So what we did was to abolish the term entirely. So these are some of

the things which we did in order to seek cognizance of the situations in the country. Thank you.

Mr. George Nagota: Thank you Mr. Chairman. African Customary Law and Islamic law, there

will be some elements which may be regarded as oppressive which will be contrary to the Bill of

Rights and the extent that they contradict the Bill of Rights. Those elements will not be

applicable in terms of the new dispensation that you are waiting on.

There is a need for the Kenya Common Law which needs to be developed. Which may be a

combination of Islamic and African Customary Law and you will also have to look at English

law. But I think we need quickly to state that where you have got Common Law. It is only

applicable to the extent that you do not have Statutory Law. Where you have covered it in your

statute, you don’t talk about it. So there is a way of phasing out, the elements of Common Law.

If you legislate, you are bringing uncertainty in the legal fear and therefore you cannot go back to

Common Law. You can only go back to Common Law for historical reasons and for maybe

academic reference in your argument that it used to be like this in Islamic law, in the African

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law, in our Common Law within the English law. Now, how we do it in South Africa, during

apartheid there were courts for Africans, where they were called Bantu courts and there were

courts basically set for African divorce and the Indian marriages were not accorded respect. But

with the new dispensation what has happened? We are striking off from both the Islamic and the

African Customary Law. Those elements, which are oppressive, we are not going forward with

them and in that way we are bringing up South African law and at the same time the constitution

(inaudible)…

The choice of law which John has referred to is very important to. You should be careful not to

bring in discrimination. That because you are of African stock or Indian stock or what, you

should be governed by this type of legislation. So we need to find a way in which there will be

the choice of law by people themselves who are going to appear whether in court or not. Which

law would they like themselves to be governed with? At the same time the conflict between

various legal elements need to be identified so that you should not have a choice of going to the

other system because it favours you and you will get a better judgment at the expense of other

people. those are some of the dynamics which I think will have to be debated, but for the

constitution I think we can rely on the supremacy of the constitution as the main law and that the

Common Law will also be governed where there is no Statutory Law.

Prof. Yash Pal Ghai: O.K. Well, let me then say that there seems to be a consensus that we

should move towards the concept of Kenyan Common Law but also that there is some concern

that this process should not result in confusion, so that we don’t certainly find ourselves on the

day the constitution comes into force that people do not know what the law is. So I think we – it

certainly involved the public in Papua Guinea and even in Hong Kong. It was very smooth, the

judges just responded to white side of arguments, precedent and so on. But I think we would use

the constitution to commit ourselves to developing Common Law of Kenya. I think we might

when we look at the Human Rights chapter, we want to say something about the relationship of

human rights to existing bodies of law. Whether there are customary or statutory or religious

and see what is the relationship and that will have some implications for the development of the

law and maybe we could ask the draft person to do a short note for us on how they think this

Common Law could be developed.

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Com. Lethome: I really agree with our colleagues and especially Professor Okoth-Ogendo

when he says that we should do away with the English Common Law, but of course the

Doctrines of Equity these are cross-cutting doctrines which apply in any society in just a matter

of what we call them.

But them I am concerned about our mandate when it comes to developing the sources of law. It

is like we want now to come up with Common Law of Kenya. My fear is that we might reach a

point which might be challenged whether that was within our mandate because for example if I

look at the Islamic law as a source of law in this country, there are historical reasons as to why

Islamic law is a source of law to a limited extend. Customary Law likewise. So I hope as we are

doing whatever we want to do, we shall not loss fight of the historical reasons behind some of

these sources of law and also our mandate under the Act and also either directly or as can be

inferred from the Act itself.

Prof. Yash Pal Ghai: I think on a mandate we really don’t have to worry in a way Ibrahim

because as Okoth reminded us it is a very comprehensive review, and the Act does say that

having listed the various things we must consider it ends up like been any other matter that the

commission considers - - (interjection)

Com. Lethome: (Interjection): Well I can see under the Judicator Act we have subsidiary

legislation as one of the sources of law and the laws that are legislated over and enacted by

bodies like the Municipals Councils and I believe there are very much constitutional within the

constitution. But under the proposals that you have made I realize that you have left that out.

Subsidiary legislation. If you compare that maybe to other countries, I can see things like

Provincial Laws which I can easily compare to subsidiary legislation. I don’t know why you had

to leave it out.

Prof. Yash Pal Ghai: I think we don’t need to worry too much about the mandate and also of

course this whole question of the Common Law of Kenya relates to a very fundamental issue

which we have not yet come to in our discussion I am sure it will dominate our discussion which

is the tension in the Terms of Reference between the requirement to have a constitution which

promotes National Unity and Integrity of the Republic and the provision which requires us to

recognize and facilitate ethnic and I think regional diversity. So, clearly an element of Religious

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Law or Personal Law may be seen as important to the maintenance of this diversity. At the same

time there pulls towards a Common Law because we have to have national unity and so on.

These are very complex issues and I think we will need to come back to that again and again. At

this stage I think there will be a suggestion that Islamic law be abolished. I am sure that will not

be consistent with the general source of the Review Act or process and as you remind us, there is

a historical background to it which has to be taken into account. But perhaps if we could get

some short paper from the draft persons we can then come back to this question.

There is one additional question that I want to raise on the application of laws and this is very

anticipation. It might not be a problem right now, but perhaps it is a problem right now, and this

is the whole question of the expanding international and regional links that the country is

developing and most prominently of course the East African community. At the moment as I

understand it, - no, I am not sure I understand it, but my sort of view would be that the law of the

East African Community applies directly – does it Margaret or do we need to incorporate every

law passed by the community – applying automatically in Kenya once it is passed by the

legislature in Arusha?

Margaret Nzioka: (Inaudible)

Prof. Yash Pal Ghai: It does provide for that?

Margaret Nzioka: Yes.

Prof. Yash Pal Ghai: And then what happens if there is a conflict between the Community Law

and the Local Statute?

Margaret Nzioka: I think I would like to just look at the Act so I can guide you correctly.

Prof. Yash Pal Ghai: Sure. I am talking of the current situation.

Com. Dr. Githu Muigai: It is the same. In that the Kenyan court would say if there was a

conflict between the East African Community Law and Kenyan Law, particularly the Kenyan

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constitution, the Kenyan courts would say, like they said in Ukunda’s case, that the constitution

of Kenya prevails.

Com. Prof. Okoth-Ogendo: But under the old system we had to re-enact the East African

Legislation into Kenyan Law and I think Ms. Nzioka is saying that under the present instrument

there was automatic application, you don’t have to do that.

Com. Dr. Githu Muigai: In my view, I though Prof was taking about if there was an internal

inconsistency between law directly applied from Arusha and a statute enacted domestically by

the Parliament of Kenya, which way would the Kenyan courts go? And my suggestion, more out

of not reading the Act but the Jurisprudence that exists, is that they would say, first we will give

regard to Kenyan law.

Com. Prof. Okoth-Ogendo: I think I would go with my other student, which is read the

legislation fast!

Com. Dr. Githu Muigai: Mr. Chairman, let me just clarify that, the guru I think did not

understand what I said, or misunderstood. What I offered to answer was the question: what

would happen if law applied directly from Arusha was inconsistent with an Act of the Parliament

of Kenya? Irrespective of what the Treaty says, and I think the Treaty is silent myself, but

irrespective of what the Treaty says, the jurisprudence of the Kenyan court would be that it

would apply the Law of Kenya first.

Prof. Yash Pal Ghai: I don’t think we need to get into too much discussion on what is the

present situation, I view that as an issue. Is that an issue that the constitution should deal with?

Or is it an issue that we should just leave to legislation that Parliament passes for reception of

community law. As we get closer in our union with our neighbouring countries, they’re maybe in

advantage in having a constitutional basis for the application of community law.

If you look at the European Union, you will find that most countries have amended their

constitution to give direct effect to community law so it overrides local inconsistent law. Maybe

we don’t want to go that far, but it is an issue we perhaps can think about. Maybe it is too early

given that this is a good elementary, early stages, but it is something we should think about as the

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Review Act requires us to think of the implication of closer regional association and so on. So I

just want to table that issue rather have great discussion on the present situation.

Com. Raiji: Excuse me Chair, I think this debate is coming because we have put International

and East African Community – I think that one of the themes or rather one of the issues was the

place of international law considering that the practice so far - -

Prof. Yash Pal Ghai: (Interjections) I am raising East African Law, not International Law.

Com. Raiji: Yes, even East African Law, considering that some of these Acts – one of the

issues is that we shall be called upon to design this constitution. Is how a law emanating from

outside becomes applicable to Kenya particular because so far they have been done without

approval of the elected representatives of Kenya and I think that is an issue that probably we will

be revisiting. So I think we may have to leave that pending for a while but I was hoping before

we leave that, should we have a on what we gather to be the consensus for now? Because if I

understand you Chair in your submission, you said we will come back to it but haven’t we

arrived at some sort of consensus? For example I see that we have agreed that the constitution

will be the source, the Acts of Parliament and that, if I understood, other Customary, Islamic and

Hindu Laws shall apply subject to certain conditions. I think we said civil and then there are

incorporated in the constitution. Can we not formulate something so that we can derive to a

tentative conclusion?

Prof. Yash Pal Ghai: That is fine, my request note was on the development of a common law

of Kenya so it was not on adopting these laws in the laws of Kenya.

Com. Raiji: And that one I think there was a consensus that we all wanted common law of

Kenya. But I am saying because it seems that on these recommendations there is something to

wait upon. I would have been happier if we could recommend something even if tentatively, to

await substantive recommendations of the other Thematic groups dealing with related issues.

Prof. Yash Pal Ghai: What are you recommending? The International law should be part of

Kenya Law?

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Com. Raiji: Yes, I am rephrasing this one to say that yes, the sources shall be the constitution,

there is no doubt about that, Act of Parliament, then the others subject to certain conditions

which I think we can work out later, including I think, in Civil matters and of course we have to

see to whom they will apply and so forth because we also have to think a little more about the

qualifications, although my preferred version which appears not to get a lot of support would be

that after saying the constitution and the Act of Parliament, I would have preferred that

customary and the rest to be applicable in such manner that Parliament may pass or something to

that effect.

Prof. Yash Pal Ghai: Bishop and then Zein and then I think we would like to wind up again on

this matter.

Com. Bishop B. Kariuki: Mr. Chairman, is it possible for us to get a copy of the Treaty?

Prof. Yash Pal Ghai: We probably have it here. It is attached to the East African Community

Law so we should have it as the laws of Kenya.

Com. Bishop B. Kariuki: Yes, because that way we can make a good decision on it.

Prof. Yash Pal Ghai: Zein?

Com. Zein: Thank you Chair. I will restrict myself to two comments. The first one being that,

you are right in saying that we should start thinking about the East African Community and how

the community law will relate to Municipal Law, but I would also like to add that we have

received submissions of Kenyans on this matters so if we are thinking about it we should also

isolate the views of Kenyans on this matter.

Secondly, if summary by my brother Raiji is what the consensus is, I would like to challenge that

and say that then we put it to a noble decision making processes of the commission.

Prof. Yash Pal Ghai: OK. Well maybe we have not quite come to that point yet because there

will be more on the international dimensions. It comes up in the Human Rights section, it comes

up in international relations and we are very fortunate that Dr. Adede has become a

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commissioner, because he is an authority on the subject, so this issue will come and I think it is a

bit too early to say that we have a deadlock. Let us continue talking about it in different context

and then come back to that. Let us leave it at that. Thank you.

Com. Lethome: The issue of hierarchy, what did we agree on? Because Commissioner Kangu

and several other commissioners raised it but we did not seem to come to any conclusion. So

maybe it is a high time now that we conclude on that issue. Do we want to have a hierarchy or

we leave the sources as they are? Of course we all know that the first source of law is the

constitution.

Prof. Yash Pal Ghai: Well, I don’t know maybe we need to think about this. My own personal

view is that we should not deal in too much detail in the constitution. This is more oppressional

law reform, we do not want to tie the hands of Parliament too much. I think the constitution is

supreme and I think that we have agreed already earlier today and then we have the broad

legislative competence of Parliament. What we have a hierarchy of law making bodies.

Competences and I would feel that we maybe encroaching too much, we maybe freezing too

much of our present legal system if we were to now work out the hierarchies.

It seems to me that we should accept that the constitution is supreme and Parliament has general

legislative authority accept in areas where freedom is restricted and we might as well restrict this

freedom to legislate by specifically recognizing Islamic law or other bodies of law but the idea of

hierarchy at each level doesn’t appeal to me very much. It will produce too much algidity I think.

Com. Dr. Githu Muigai: I am sure the drafts men have taken on board the idea that subsidiary

legislation if we are mentioning all the sources, will be mentioned. Mr. Chairman now that you

have given me a chance, maybe I would say that I understand that we have a consensus, Zein

will give me a second, in that we have raised all the issues, the draftsmen have heard us and have

taken notes. I think then that the next thing is for them to get back to us with what would capture

this spirit and then we debate it at that point.

Com. Zein: Mr. Chairman, I have just had you answer a specific question from Commissioner

Lethome. For example on the issue of hierarchy. I have just heard you. You said that let us leave

it up for debate. That does not sound like consensus to me. I grant my Convenor that the

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consensus of the other issues is yes, on matters of principle, not on matters of how they should be

formulated. But can I have the Chair say so that I can understand this. Do we have a consensus

that there should be a hierarchy of laws in the formulation of the drafts people.

Prof. Yash Pal Ghai: Well, I don’t like the idea of hierarchy within which I believe there is

supremacy of the constitution, then there is legislative competence of parliament, there will be

legislative competence of other bodies, but this is something maybe we need to discuss more. At

the moment I have not heard all the arguments of why we should have hierarchy, I am

principally not so happy to have all these things put in the constitution, but there may be our

views on this. But I though this discussion started with the point about international law. It was

that area I said that we would be exploring in other things and then we can see whether or not we

have a consensus. So maybe we don’t may be we, let us leave it until we really have to decide

this point of international - -

Com. Dr. Githu Muigai: Mr. Chairman, can we please have five minutes and rush for a cup of

tea?

Prof. Yash Pal Ghai: Yes, please come back because we need to make further progress. Now,

the next item is on Nationhood.

Com. Dr. Githu Muigai: Again there is very little to say about this item. I would ask my

colleagues to look at page 3 of the summary and we have only five short proposals as to what

should go into a provision of this nature. We believe there are not contentious and unless there is

a very very specific question, that is all I wish to say.

Com. Nancy Baraza: Thank you Mr. Chairman. We are at page 59. I am looking at the

recommendations. Mr. Chairman what I was going to propose is from what I gathered around the

country, they are many people in many parts of this country who feel they have been left out

totally, they are not part of this country and for good reason, I mean if you go to North Eastern

Province, to Eastern Province, Moyale and Illeret those sides. I don’t think just recognizing them

will make them part of this nation. Just recognizing their culture and putting it on paper. I do not

think it will make them feel part of this nation. I think we need to go beyond that. I don’t know

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it is, but something – Yes, I can be helped out on this. I want to know what that promotion is so

that I am clear. Can I be told what that promotion is so that probably I may make my proposal?

Com. Zein: That you Chair. We had indicated that there are some provisions in the proposed

draft on page 42 which should be brought back as a part of the tentative recommendations which

are based on the views of Kenyans but we did not have the time to do. If you can see, there is

under the proposed draft provision, people had indicated to us that there is need to have a

mechanism and some had even suggested a commission, to take care of all communities

including the part of recognition because they were many communities which came up and said

they are not part of the 42 communities which have been identified in Kenya. So, part of the

proposed draft provisions, if you look at them, if there are satisfactory they will be brought back

into the recommended provisions.

Com. Nancy Baraza: Mr. Chairman, may I say what I wanted to say? Those who feel they

have been marginalized even in terms of development, there is no presence of government there.

There has never been government expenditure on them. I think just recognizing them on paper is

not going to be sufficient. So I don’t know how that can be captured in those proposed draft

provisions on page 42.

Prof. Yash Pal Ghai: But you will also remember that when we look at Human Rights, we are

going to talk about the point of action and I think recognition of different communities we are

yet to come to that. Here I think we are stating the general principles the details might come

there. Generally on land, we have provisions for pastoralists and other marginalized

communities.

Com. Nancy Baraza: No, I would just like in bullet 12, something added that will be reflected,

I know it is reflected in my chapter, a word or something?

Com. Lethome: I would like to draw the attention of Mr. Githu and his committee to page 41,

8.5, tentative conclusions. Considering what I heard Kenyans say, all over the country, I think

there are two bullets you should have added there. Consider them.

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One, on national dress. Because they said that would give us an identity as a people. Two, about

the currency of Kenya not to bare the portrait of the president which will also be reflected now in

the proposed draft provisions. Then on the Court of Arms, - or whatever proposed provisions that

you have given here. For example, is it a correct assumption to say that what you are telling us is

that we should retain like the National Anthem, the National Flag, the Court of Arms as it is? Is

that the correct assumption?

Com. Dr. Githu Muigai: That is the correct assumption.

Com. Lethome: Then I have a problem with the Court of Arms. The Court of Arms has a

cockerel in between and the cockerel is a symbol of a political party in this country, so maybe

with that slight amendment to the Court of Arms.

Com. Zein: If we listen to the views of Kenyans, majority of Kenyans are saying retain these

things with exception of possibly - -we recalled an old mzee saying that the Zion need to be

replaced, they are too threatening, they need to be replaced by a man, a woman and a child. But

even on the name Kenya, very view people said varied, but majority of those we looked at are

saying retain these symbols but again we have said maybe we should look into a way of them

been defined in an Act of Parliament.

Prof. Yash Pal Ghai: O.K. That seems to have brought approval on that basis. So, I think the

next is citizenship, a very important area in which we have I would say, very clear guidance from

the Review Act and l also believe from the public. Yes. Raiji?

Com. Raiji: I note Chair that the committee has proposed dual citizenship. I don’t know what

my colleagues feel but my understanding of the submissions - -

Prof. Yash Pal Ghai: Can Dr. Githu introduce it first please?

Com. Raiji: Sorry, I thought we are already commenting on it.

Prof. Yash Pal Ghai: No, no, not yet.

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Com. Raiji: O.K.

Com. Dr. Githu Muigai: Mr. Chairman, very briefly again, I want my colleagues to look at

page 53 of the big document and page 3 of the smaller version and I have not much to add except

to say this; the principles that emerge from everything that we were able to gather are four. First

is the equal treatment of men and women, secondly is dual citizenship and because Raiji has

raised it, maybe I can give the rationale.

We understood Kenyans to be saying that we have in many ways discouraged Kenyans living in

other countries and those countries allowed dual nationalities to remain citizens of Kenya, and in

a way discouraged them participating in the economic, social and political life of their country.

As many of us here are aware, an economy like the Egyptian economy or the Philippines

economy is largely supported by the repatriation of cash by people living and working outside

those countries. Most Kenyans in America, in Europe in Australia in Asia and so on, are

discouraged by the existing laws once they have acquired citizenship elsewhere from returning to

participate in the national life of their country.

I have attached Mr. Chairman, if I may, very very briefly – there is an e-mail here at page 47,

from a Kenyan called, what was his name? We will fix it. There was a name. This man was

writing from Germany and if you read his lamentations, he says I have lived and worked in

Germany since 1983 and he explains very succinctly the kind of problems that faces Kenyans in

his circumstance. That is what we took into account.

There were other concerns about dual citizenship from Maasais in the Tanzania/Kenyan border,

for Kurias and so on and other nationalities of our Republic in the border areas and that does not

come out from our presentation but we considered it as well and of course the other one is the

registration board and the equal treatment of all persons who are citizens. Maybe that is all I

would like to say.

Prof. Yash Pal Ghai: Raiji you were in the middle of your statement? And then Mutakha, did

you also have your hand Bishop?

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Com. Raiji: Chair, I think despite the explanation by my colleague, I think my understanding of

the preponderance of submissions by locally based Kenyans was against the retention of dual

citizenship. I am aware that those living Abroad and those who have been sending e-mails that is

there. I think the issue which was raised was the question of loyalty and sovereignty of Kenyan

and I think really one has to choose where to belong. I don’t know what mechanism, or how they

arrived at the fact that the majority of Kenyans favoured dual citizenship against the present state

of affairs. For my part I would recommend that we remove that recommendation of dual

citizenship.

Com. Kangu: Mr. Chairman, following on what Raiji has said, I would also like to say that

even on the question of equal treatment of men and women - -

Prof. Yash Pal Ghai: (interjection) Can we just focus on this first?

Com. Kangu: Dual nationality? O.K. fine I have nothing about that.]

Com. Bishop B. Kariuki: Mr. Chairman, personally I think I accept that recommendation.

Maybe people in the rural areas may not have know the significant of it and therefore cannot

access whether this is right or wrong but in order to build this country, we do need to allow dual

citizenship so that the Kenyans who are living and working in these countries can still come back

as citizens and invest in this country. I think this is a very progressive step that we should really

accept.

Com. Zein: Thank you Chair. The committee also had to deal with another aspect of this, which

is majority of Kenyans who spoke to us said that there should not be a citizen who can be

deprived their citizenship. Now if you look at that principle visa vie somebody becoming a dual

national of another country, who will then deprive that citizen their right of Kenyan?

But again the question which is been raised by Commissioner Raiji, takes us back to a question

which we need to deal with as a commission, which is what is the place of numbers in terms of

people who have made submissions. Some of us feel that in the beginning, if this was going to be

like a censor, or if numbers were going to count, we were then going to tell the Republic and all

Kenyans that first and foremost numbers are going to count, then secondly we would have laid

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out our infrastructure of conduction and collecting views from Kenyans to allow maximization

of numbers. For instance, if we were going to have an equitably infrastructure, it will not be

based on a political instrument like say just District. When we say we shall have a District office

and a reference resource centers, we know Districts are not of the same size, we know Districts

are not of same terrain, same population. There are variations on all these scores. But most

importantly, we know some Districts, we would have had, as a commission, to follow people to

watering points in order to maximize the numbers and I can go on about assumptions of

numbers.

For instance, in our hearings we can go back to a verbatim records and show that many times a

commissioner who was chairing a panel would say, don’t repeat that point because it has already

been contributed enough, unless you have a new point relating to that question, don’t repeat it.

And many people, if they were sampled will tell you went away with similar views back home

because they believed that since it has already been laid on the table even if by one person, and

they were thousands of them, that takes care of it. So I don’t know at what point we as a

commission are going to re-visit the question of numbers. That you Chair,

Com. Abida Ali: Thank you Chair. I entirely agree with Zein and I see now the reason why we

need to have the constituency reports that we have been asking for, for purposes of the refined

information that we have with us because my understanding is totally opposite of what Raiji has

said.

For me, most Kenyans so the value of dual citizenship. I also wish to note that at this point, I also

to see the need for proper analysis and proper statistics although again according to Zein, we

cannot say our statistics are right because a number of times we did request the participants not

to repeat.

Then the other angle Chair is the fact that we will not always take the recommendations that we

received and for good reasons and I see know the reasons for us to give a rationale of any

recommendation that we come up with to avoid a situation like this especially where for instance

we have received views as saying a different thing and for good reason the commission feels that

our recommendation should be different.

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Com. Dr. Korir: Mr. Chairman, it is the issue of the reports from the constituency. We are

saying this will not be an elite issue, somebody e-mailing in Germany. When we were North

Eastern Province, the people on the border with Somalia were concerned about this issue and Dr.

Githu Muigai has mentioned Kenyans on the border with Tanzania but when we were in Western

Province, North Rift, people were talking about this. A lot of Kenyans who were sent into a

Diaspora under colonial rule, this affects them in many ways. Therefore we do not just want to

make a generalized recommendation, but it would be very important to say which categories of

Kenyans were concerned about this issue. That is why we need the breakdown of the data. Also,

to the constituencies and the provinces.

Com. Lethome: Now that there is no risk of me been told not to repeat what others have said, I

will repeat. I think I would like to agree with what Abida has said. I believe that the

recommendations we are giving here are based on one;

What Kenyans said. Two, on what is in the best interest of the country and that is why I think

Abida mentioned rationalize. We have to rationalize and see what is good for the country. But I

can speak with confidence and maybe the data runs will prove me right. The overwhelming

majority of Kenyans recommended dual citizenship and I rest my case there.

Com. Nancy Baraza: Mr. Chairman, I think I just want to comment on what my two colleagues

have said. If this committee had given us the views of Kenyans, I mean reflected them in their

report, I think it would make it easier because I am also going to agree that there are some views

which were going to disregard when we are putting in our own expert opinion on what is good

for this country. But we have to have a basis. We have to have a reason to tell Kenyans why we

are thinking that way and for that reason, we needed to have been given from the data run in this

report of theirs, what Kenyans said. Probably not all of them said they want dual citizenship,

some said they do, but this is our expert opinion on it. I think that would have gone along way in

assisting us.

Com. Dr. Swazuri: Thank you Mr. Chairman. Just like Ibrahim I also want to repeat because I

am not going to be thrown out! What exactly Nancy has said, Zein and Abida and I think if we

had the complete data it would tell us what Kenyans said because as Mosonik said it depends

where you went.

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Like in the border Districts of Mandera and Wajir, when we questioned them why they wanted

that, we realized what they wanted was just free movement, where they could go, when it is dry

they could go the other side and come back – not necessarily to be citizens of the other side. The

same thing we got when we went to the border towns, the other side of Western Kenya and the

people gave us the reasons why. For example, those who wanted dual citizenship give the

reasons that you know it is now almost like vogue. It is fashion, all over the world, it encourages

them to bring back money home and they are able to move wherever they want to, but those who

said against, for example said that it encourages thuggery. For example when we were in Isiolo,

someone said that if we give dual citizenship, these fellows attack the other side and then they

come here. There is nothing you can do, they are also citizens here and then others in Western

Kenyan for example told us that people who can do wrong things in other countries, acquire

citizenship of Kenya and come and rest here. Therefore our country will become a den of these

people. So, I think we need to get what exactly and we do a cost benefit analysis.

Com. Dr. Korir: Mr. Chairman, these data runs which is not very popular. On page, should the

constitution allow dual citizenship? Yes, 401, No, 294, then dual citizenship for women – 4, 1

and so on. So it is a bit like 420: 294 for once.

Com Raiji: I think in that case Chairman I am conceding because I think I was mistaken as to

exactly who are more.

Prof. Yash Pal Ghai: O.K. Well I was going to say that the sense of the commission is that we

should allow dual nationality. But now that the one person who speaks against has withdrawn I

guess that is the recommendation of the commission.

Com. Kangu: Mr. Chairman as I go to another ….. broad may repatriate money here, but we are

not asking how many other people in Kenya who have dual citizenship will be repatriating

money from Kenya to other places and how do we guard against that? We are a poor economy,

we must protect it and we know for a fact that we have suffered from illegal repatriation of

money from this country to other places and by putting dual citizenship we might even be

making it easier for those who want to rape us left and right.

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Next thing is, I was mentioning the equal treatment of men and women and I wanted to say that

the views were again varied so we must be able to rationalize our decision that we want to have

equal treatment but we should not say that they all said equal treatment. They were some people

who spoke from a customary point of view in very strong terms related to the patrilineal nature

of our society, that women should not be able to confer citizenship upon their husbands but of

course we should be able to reason out to come to our decision without assuming that some

people did not say that.

Finally, unfortunately Githu is not here but fortunately Zein is here. They talk about equal

treatment of citizens. If I recollect what Githu said, he was focusing on the problems that have

been expressed by the Somali community relating to the screening before they get identity cards.

But it is cast in the form of equal treatment for all citizens and yet the development across the

world is that there are certain rights which involve some kind of discrimination particularly

political rights and holding of offices and I think we need to come out clearly on that. I would

want us to specify, although that maybe in other sections of the constitution because for instance,

when it comes to the presidency, we are not going to say if my wife who came from the Uganda

and has become a citizen is entitled to become a citizen of this country. Our people told us

actually that certain offices like the presidency should be held by an indigenous Kenyan or

citizens and I think even the Americans seem to have something along those lines. So, I would

like us to be a bit clear on the extent of the equal treatment of citizens we are talking about.

Prof. Yash Pal Ghai: How do you define indigenous?

Com. Kangu: We may have to- - I may not have a clear answer, but if Kenyans told us that, it

will be our business to ask ourselves and find a definition of who is an indigenous Kenyan.

Prof. Yash Pal Ghai: I think one it is very important that we respect what our people say, we

also have to look at what the Act says and the Act is very clear both on gender parity and equal

rights of citizens. We are a creature of that Act and I think we have to take that into account as

well.

Com. Bishop B. Kariuki: But Mr. Chairman also, we have to take account of general trend.

You go to the United States, you become a citizen, the very fact that either you were not born

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there, from parents who are Americans, you will not be able to vie for presidency and many

many countries guard that because that is the only distinct right as human beings created by God

they have in that particular country. I think I would not recommend that anybody can be a

president of this nation. Whether the Act says it or not, we have to look at the general trend.

Prof. Yash Pal Ghai: I don’t have any strong views on this but I do want to remind you of the

quality of indigenous presidents that you see in West Africa, you see in Zambia, you see in

Malawi, it can be Bills, it can be devises and if a person does not command support in a

community then he or she will not be elected. People feel that a foreigner should not be

president, then the person will not be elected.

Com. Raiji: I think I understand the sentiments that my colleagues are saying on that one. I

think one of the ways of putting it is to say that one has to be a citizen by birth, or alternatively to

say that one to be president for example, one parent must have been a citizen of this country.

Com. Nancy Baraza: Mr. Chairman, I will be open on it. I would not put it in the constitution

to restrict the rights of citizens. I would leave it probably the Indian way where Sonia Gandhi

wanted to run and it took care of itself. Let it take care of itself at that level. They said she is

Italian or something. But I would wary of doing to her in the constitution.

Com. Kangu: Mr. Chairman, I want to come back to this issue and say that while we are

considering the question of citizenship and the rights the citizens are entitled to, we must be

driven by the question of the welfare of the people, the security of the people and the Nation and

the fact that today as we speak – of course the situation may change. There is this animal called

terrorism threatening the entire world and you open up this issue of citizenship and you end up

with some terrorists coming in and taking over your nation and you find yourselves in problems.

So we must certainly think about the security of the nation and I am sure that that is what drives

those who say that when it comes to certain rights, we must put some distinctions and not just

say it is for everybody.

Com. Dr. Swazuri: Why don’t we deal with it in two ways? One way is we first of all hear we

want to consider how citizenship is acquired., first. Then we shall come to qualifications of the

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people who are running for presidency, or Prime Minister, or MP. Now we will put our demands

there.

Prof. Yash Pal Ghai: That is an interesting point and I believe there is the idea of having a

registration board partly to deal with that issue. Did I see some other hands there?

Com. Zein: Chair, I would just like to make this clarification and this is for my good friend

John. I am sure if I understand him, he was not trying to equate the discrimination on those who

are – two counts, one, those who are to run for the highest office in the country and terrorists

with citizens of Kenyans like the communities who complained in Kenya about been

discriminated. I want that to be clear. That you are not drawing the parallelism between those

two. I think our committee dealt with the question of discrimination of our country, particularly

based on the views we received from Kenyans. We have views by women saying that the current

constitution is discriminatory and needs to change and we had views from Kenyans who came

and said, we are Kenyans by birth, we have roots here but we are been discriminated on either

accounts of faith or accounts of community, or accounts of where they are located be it at the

border town or something like that and on those two scores, I think apart from the evidence that

we received from the people, it was a consensus of our committee that there can never be

justifications for discrimination on gender or on a community in Kenya.

The other questions which we were dealing with in terms of the debate which is going on, I think

Dr. Githu Muigai raised the issue of marriage. Those can be Kenyans by virtue of been married

to a Kenyan and what we were suggesting was that in the registration and naturalization

processes, there need to be qualifications and waiting periods of time which do not necessarily

need to go in the constitution in the same formulation which I think Dr. Mohammed Swazuri is

proposing.

Com. Kangu: The sense I get from that Zein is saying and which I think I had mentioned earlier,

is that they were thinking of equal treatment in reference to the Kenyan communities that have

complained and effectively he is saying they did not consider the question of rights that accrue

upon citizenship and I think that was a question in our questions and issues and therefore we can

say that they go and consider it and they give us their own thoughts about that particular issues

because apparently they are talking of equal treatment in terms of getting documentation of like

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Identity Cards and so on, but can they consider the issue of the rights that accrue to citizens?

Whether they should accrue on an equal basis or there can be some distinctions.

Com. Zein; That is why we feel that would be under the Legislation Act, the Act of Parliament.

We will have description of this various groups in the Act of Parliament and we may include that

in the Act of Parliament. We did not see any merit including this exceptional cases or

distinctions in the constitution. That is the position we had.

Prof. Yash Pal Ghai: What kind of distinction? I am not quite with you.

Com. Zein: For instance if we are going to allow non-Kenyans who are married to Kenyans to

automatically use that as a basis to apply to become Kenyans, then the procedure of registration,

we will leave it to an Act of Parliament. The question of who then has a right, do you have equal

rights completely for all citizens or they can be exceptions like the case of running for the

highest office in the land in terms of the views of Kenyans saying you have to be Kenyans by

birth. This indigenous is something I am hearing today, but the majority of Kenyans were saying

you have to be - like what is contained now in the constitution that you have to be a Kenyan by

birth to run for the office of the President. Even that we said it can be handled in the qualification

of who can run for president but not create exceptions of citizenship rights in the clause of

citizenship in the constitution.

Com. Dr. Swazuri: I don’t know whether this task force also had a mandate as we were

requested by Kenyans to tell us what is the proof of citizenship? Many Kenyans gave us views

and I wanted to know whether if you have an ID that qualifies you, or you must have a passport

or birth certificate or whatever. I don’t know if it was part of your mandate to also talk about

that. Where have you addressed it?

Com. Zein: To some extent this was a chicken and egg question because those who complained

to us that they could not get ID’s, then they could not prove their citizenship. That is why we

were proposing that anybody who is a Kenyan by the time this constitution is enacted,

automatically becomes a Kenyan citizen and that – I hope I am not going against your ruling

chairman when you talked about don’t propose draft formulations or mechanisms but we were

proposing the establishment of an independent body to register Kenyans and take it away from

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the bureaucrats or from government departments which then would allow any Kenyan as a right

to be given ID’s and passports.

Prof. Yash Pal Ghai: Let me try to round up, - -

Com. Lethome: (Interjection): I am a commissioner and I listened to Kenyans. What Dr.

Swazuri is asking is the prove for citizenship and if I can remember what Kenyans said is that

O.K. if we have all those difficulties of registration and acquiring the ID card. That is now an

area for legislation Act of Parliament. The registration of Persons Act and the rest. But they said

that one of - either the passport or the ID. When a Kenyan attains the age of 18 years, he or she

automatically gets both, the ID cards and the passports and those will be the prove of citizenship.

If I heard them right.

Com. Zein: We cannot put that in the constitution. We are suggesting - -

Com. Lethome: (Interjection) I am answering Dr. Swazuri.

Com. Nancy Baraza: Mr. Chairman, Zein said about anybody who is a Kenyan when we do

what with the new constitution?

Com. Zein: There are several categories. Maybe you should look at page 54 – 55?

Com. Nancy Baraza: Yes, have you taken into account the problem of people like Goans? I

think we have submissions from them, - they have been here three generations, who are not

Kenyans infact, so who will you determine who is a Kenyan to be able to - -? They are quite a

number.

Com. Raiji: Mine Chair is more or less in the sense of information. I think we are confusing

two things, who is a Kenyan as a matter of law and evidence to support the one contention that

he is Kenyan and I think those two are separate because I think Lethome has answered part of it.

It is a question of proving that presentation of a forged passport entitle one to be a Kenyan. We

have already set out a criteria of who qualifies to be called a Kenyan citizen.

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Now, the evidence. I think the discrimination that everybody was complaining about probably

falls in the armpit of the Ombudsman where some Kenyans of certain origin or even certain areas

are discriminated and unfairly dealt with and accorded different treatment with other Kenyans

when both of them walk to the registration office to demand an ID. I think that was the issue

there and I know my committee is dealing with the element of that but we must not confuse the

fact that – yes, what is the evidence of citizenship and who is actually a citizen. Thank you.

Prof. Yash Pal Ghai: O.K. I think Swazuri’s point is important in the sense that if you

unleashed a law in way to require documentation which is not available, you are effectively

denying a person the citizenship. But it is a question of evidence and procedure and I accept your

basic distinction between been a citizen and then how you establish that.

If I could try to sum up my sense of the commission is that we do not in practice want

discrimination either on basis of gender or other basis. The only issue on which I think we have

not quite agreed is whether to stand for high office, a citizen should have been born in the

country. I believe that is a point that perhaps we do not reach total agreement, but I do believe

that we have agreement on equal rights of all and I think we could have a caveat or a statement

in our report at least and maybe even in the constitution that apart the difficulty of proving –

because I do know it has been and I have myself suffered from this that it is sometimes very

difficult, I mean there is a distinct policy in all the governing policy but there is a bureaucratic

practice. Some communities get a raw deal, we know this happens and I think we need to polish

this somehow and ensure a fear process of examinational claims. It could be you are quite right

to some extent so by having institutions like the Ombudsman and so on but I think we need to

acknowledge that some how because this point came up again and again in the meetings I was

sitting at both in Nairobi and in I think we need to acknowledge that. So I believe apart from

that we have a basic agreement, the bone point been whether standing for high office should be

confined to those who were born as Kenyans.

Com. Prof. Wanjiku Kabira: I was looking at page 6, the way they have sampled the

recommendations from the public and I notice that the last bullet, which says that all documents

whose issuance requires production of an ID should be used as evidence of citizenship. I think

that is a reflection of what Kenyans have been asking for. So it is probably reflected in the

reports but not in the recommendations.

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Prof. Yash Pal Ghai: You may not get a nationality unless you establish citizenship and once

you have that I think you are accepted. So I think we need to have very clear rules whereby you

establish your citizenship. The ID card is just an evidence of that and I think once you have an

ID card or a passport, that should be sufficient evidence for most practical purposes that you are

a citizen. Have I misunderstood your point Wanjiku?

Com. Prof. Wanjiku Kabira: No, I am just worried. I think just like what Swazuri is saying, I

am wondering about what we have done with that anxiety of Kenyans and the frustration of not

getting an ID. Because either you are Ugandan woman – (in the case of Busia), married to a

Kenyan, you cannot get a national ID. You cannot get a birth certificate. Or you are a Somali and

for the last 30 years you have been trying to get to a birth certificate you cannot get it and so on.

So I am just wondering, how have we addressed that basic concern?

Prof. Yash Pal Ghai : Yes this is the point I was making that we could both adopt (inaudible)

and we could even have some general – and here we will be guided by a draft person. The

general statement in the constitution about this issue, I don’t know exactly what form it will take,

but I think that could be the way to go. It is a major problem, has been and I think we need to

address that. I think I said that before you came into the room.

Well, we may need to come back then to the one point about whether – and we can look at that

when we look at the Executive. We look at qualification for standing office and we deal with it

that time. That leaves us only with one issue from this paper which is the question of national

territory. - -

Com. Dr. Swazuri: (Interjection) On page 4 on this summary, still on citizenship. Before we

come to national territories, the bullet before the last. The constitution should provide for

citizenship by adoption and legitimation. Then the next sentence, in recognition our child’s

rights and nationality perhaps we should provide that children under certain age born within

Kenya, whose parents cannot be found, should be accorded citizenship. Now, supposing a

Ugandan throws his child to the side of Kenya? Is that a citizen? Is that child given citizenship?

I am worried just in tandem with what I said that some people said that we are in danger of been

dumped with people who are not our own people but then because of our laws they become

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automatic citizens. Isn’t this one of those? I think the spirit of the committee was maybe to look

at street children. That is what I thought at first, but you know street children have their parents

somewhere within the Republic.

Prof. Yash Pal Ghai: Ya, I don’t know how likely it is that people will throw their children

here so that they become Kenyans! But it is a point we should consider.

(Reaction from floor)

Com. Nancy Baraza: Mr. Chairman, I come from the border with Uganda and there is a time

when that used to happen, they just abandoned those children there deliberately.

Prof. Yash Pal Ghai: In the hope that they will become Kenyans?

Com. Nancy Baraza: Now, well if we have that law they will become Kenyans but there is that

danger.

Com. Lethome: Maybe this is meant to take care of children found in the streets whose parents

cannot be traced but now when it comes to the examples that have been cited by Madam Nancy,

which is a fact, it is factual, it happens at the borders. Maybe we leave that now to our

immigration laws, that should be taken care of by another law all together, not the constitution.

Prof. Yash Pal Ghai: But if you want to give citizenship to such persons then I think we may

need to deal with it in the constitution. We could still leave it to them but the constitution will

specify the grounds on which you become a citizen so I think we probably need to discuss it

here.

I should say that a number of countries do have a law like this. And that if you are found in a

country and the parents cannot be traced then they are treated as citizens, so it is not something

unique which is been proposed here. Yes Zein.

Com. Zein: Infact if you are to examine the position which is been suggested, assuming

somebody brings a child in Kenya and leaves them, what will people do if that child cannot

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identify a parent, doesn’t know anyone in this country. What will we do as a people? should we

say we are going to try and ex-bind them to some place which they don’t know? This is a minor,

where we are saying possibly seven years and under. Not above that.

But again, talking about street children, it is true that they are a number of street children who

have parents they can identify but because for example for the street phenomena in Nairobi, there

are many orphans who their parents were living in the streets, they are orphans, they have no

paper whatsoever to make claim to, they do not know anyone else apart from the children, the

other children they have in the streets and I speak about this with experience because I have

worked with some street children.

PLO Lumumba: Mr. Chairman just one question that maybe unpopular but it is procedure. If

we adopt the guidelines in the morning, I had a saying that we will kind of structure the debate

and that there will be recognition twice I think. But what I have observed is that - -

(Debate on the floor)

PLO Lumumba: But that notwithstanding, I have seen that while consensus was very obvious a

long time ago, we were now giving an encode and that could very well extend this debate, that is

my observation.

(Reaction from the floor)

Prof. Yash Pal Ghai: So I believe – are you satisfied with that Mohammed or are you - - thank

you very much. So I think we have a consensus on that. The next is national territory and Zein

could speak to it because I don’t see Githu here.

Com. Zein: We are asking only two things Chair. On national territory, we are asking that

Kenya’s national territory needs to be clearly defined possibly in the constitution. We did not

find really legal value in defining in the constitution except social and political values because if

you define it in your constitution it does not mean then your international claims become

legitimate but we also felt that it is very important for us to reconcile and resolve all territorial

claims that we have with other neighbouring countries. Those two issues. Thank you.

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Prof. Yash Pal Ghai: Before we get to land I know that Margaret Nzioka is here and I forgot to

call on her. I apologize and now I give you the floor.

Margaret Nzioka: Thank you. I just wanted to point out, I am informed that some of the issues

affecting the rights of the child are addressed in the International Convention on the rights of the

child. So perhaps we could benefit from that convention. Thank you.

Com. Zein: Mr. Chairman we restricted ourselves to International and Territory boundaries. We

know there are a lot of submissions that people made in terms of internal boundaries but we did

not go their.

Prof. Yash Pal Ghai: Maybe those would come under devolution or something. Certainly

when we are talking of international, we are talking constituting the State, so that comes under

that. Are there specific recommendations you made or? - -

Com. Zein: There are on page 4, those two.

Prof. Yash Pal Ghai: Maybe the secretary could comment on that because you remember we

agreed in Nairobi to hire a consultant to help us think through also, find a way through the

boundary issue and I know that the secretary has been in touch with the Director of MAPS or

whatever it is called, so, can you bring us upto date.

PLO Lumumba: I want to confirm the time talked to the Director of Survey today, that the

consultant we had hired could not access the document. He asked me to write a liter which I did

today and he has asked me to collect if possible some this document in Nairobi on Monday

morning.

Com. Raiji: (inaudible) Just a point of information. What Professor Okoth-Ogendo is saying on

that issue saying that he has not spoken to the former Director (inaudible) and I think the other

on between Kenyan and Sudan but Okoth can confirm, I think he did make some kind of

investigation.

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PLO Lumumba: Abssyulum brought a letter yesterday and that is what prompted me to talk to

the current Director. Abssyulum could not access the documents and that is why I talked to the

current director who said he is the one who refused to give access to Abssyulum and he is the

one therefore who says he is now putting them together and will avail them to us.

(Reaction from the floor)

Prof. Yash Pal Ghai: I think we don’t have to discuss this now because we have limited time,

this issue will come up, we shall have the report and the reason is that we are losing electricity a

lot here and I just want to wind up the meeting before it gets dark and hit the doors and chairs

and so on.

Com. Dr. Swazuri: I was suggesting that maybe once those parts are available, or whatever part

you are talking about – you are saying that you might get them on Monday or sometime like that.

What I am saying is just like what the independent constitution tried to do, they defined it in

terms of the co-ordinance and I would have accepted us to – well infact they say Kenya’s

national title ought to be clearly defined using geographical co-ordinance.

Com. Zein: That is acceptable. Chair, just to say this. That at least from the point of view of our

committee, that we have heard that we need to access more of the Kenyan views, we need to

rationalize and justify further some of the conclusions which we are making and we need to

include some more of those conclusions which were discussed around the table and exclude

those which people said they excluded. We will be working on this document and when it is

done, possibly with the co-ordination of the drafting team, that it will be availed to other

commissioners to see the progress that we have made, to include the views of commissioners in

this session.

Prof. Yash Pal Ghai: I would like to thank you all very much. I think this has been an

extremely good day, we have had very good discussions, very open discussion, we have listened

to others, we have been willing to be persuaded, we have tried to persuade others and I hope that

we can continue with this spirit throughout our proceedings and I want to thank you very much

for your engagement. I want to say that the committees should try to meet over the weekend, at

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least Saturday and Sunday, try to make progress where they haven’t finalized the report or the

recommendations. What we would welcome most of course is recommendations. Give us this

report so that we can read this before hand, the narrative and so we can focus on the

recommendations knowing what the basis are for your recommendations. We will distribute the

programme for next week as soon as we can and then we will adopt that on Monday.

On Monday morning we will at least focus on the report on Human Rights, which has now been

distributed and hopeful we will have time for more reports on Monday but we will let you know

as we discuss with the Convenors the state of their preparedness. I don’t have any other

announcements. So we thank you very much, use the library now there is a lot of documentation

there including constituency reports. So familiarize yourselves with what people have told us, so

that we can make speedy progress on Monday. Thank you very much I wish you a happy

weekend.

Meeting ended at 6.45 p.m.

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