CONSTITUTION OF KENYA REVIEW COMMISSION

(CKRC)

Verbatim Report of

CONSTITUTION OF KENYA REVIEW COMMISSION PLENARY

MEETING HELD AT LEISURE LODGE, MOMBASA

September, 05, 2002

CONSTITUTION OF KENYA REVIEW COMMISSIONPLENARY MEETING HELD ON SEPTEMBER 05, 2002

AT LEISURE LODGE, MOMBASA

Present

1. Prof. Yash Pal Ghai - Chairperson 2. Prof. Idha Salim - Vice Chairperson 3. Prof. W. H. O. Okoth-Ogendo - Commissioner 4. Prof. Wanjiku Kabira - “ 5. Dr. Githu Muigai - “ 6. Dr. Charles Maranga - “ 7. Mr. Domiziano Ratanya - “ 8. Mr. Paul Wambua - “ 9. Ms. Salome Wairimu Muigai - “ 10. Mr. Abubakar Zein Abubakar - “ 11. Mr. Isaac Lenaola - “ 12. Dr. Abdirizak Nunow - “ 13. Dr. Mosonik arap Korir - “ 14. Mr. Riunga Raiji - “ 15. Mrs. Abida Ali-Aroni - “ 16. Ms. Nancy Baraza - “ 17. Mr. John Mutakha Kangu - “ 18. Pastor Zablon Ayonga - “ 19. Bishop Bernard Kariuki Njoroge - “ 20. Ms. Kavetsa Adagala - “ 21. Mr. Ibrahim Lethome - “ 22. Mrs. Alice Yano - “ 23. Mr. Isaack Hassan - “ 24. Hon. Mrs. Phoebe Asiyo - “ 25. Ms. Salome Muigai - “ 26. Dr. Swazuri - “ 27. Mr. P. L. O. Lumumba - Commission Secretary

Drafts Team:1. Prof. Crabbe2. Margaret Nzioka3. George Nagota

Prof. Yash Pal Ghai: I have just started the meeting. So, will you please take your seats. Okay, please take your seats and

I am going to ask Com. Isaack Hassan to say prayers for us this morning.

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Com. Hassan: (Prayer) (prayer in venacular). Amen

(laughter and inaudible comments by Commissioners)

Prof. Yash Pal Ghai: When we adjourned yesterday, we had gone upto No. 9 of the summary recommendations on page 9,

and if you give me a chance, I am going to ask Com. John Kangu if he wants to introduce or he thinks that the language is clear

enough, and we just begin our discussions.

Com. Kangu: Mr. Chairman, I think, to save time, members have read through this, and we can just go straight to their

contributions.

Prof. Yash Pal Ghai: Yes, any comments? Yes Charles.

Com. Maranga: Mr. Chairman, the issue where we are saying no use of Government facilities, spare time on State media,

form parties and even liberalization of the airwaves, including the TV. Mr. Chairman, that is a major issue and it has never been

enforced. So, I think even if we provide for a Constitutional principle on that, we need to see how it can be enforced.

Otherwise Mr. Chairman, the state media and also the liberalization of the airwaves as you know, has been a major point of

contention. So, Mr. Chairman I would want stricter ways of enforcing the same.

Otherwise Mr. Chairman, I also want to say there should be a restriction on the expenditure of money or resources on

elections. And Mr. Chairman, I think we need to have a calculation, like, the earlier times, it was Kshs.40,000/-, but now

maybe because of inflation and other…., maybe we can beg it to Kshs.500,000/-. Thank you.

Prof. Yash Pal Ghai: Thank you very much.

Com. Hassan: Mr. Chairman I am not sure whether we will have any justification to force privately owned media houses or

major stations, because accessibility is to the shareholders and to the owners of that media house to do bulky fair reporting,

because, I don’t think the only organization I think we have, we can lawfully regulate the KBC which is a permanently owned

organization. But to make the same rules and regulations of KBC and Nation TV for example or KTN, or Citizen TV or any

other private media house will not be right. So, I am not sure, I think this should be reframed so that, that principle is captured.

Prof. Yash Pal Ghai: Its quite common in many countries where the media is permanently privately owned to have such a

provision. That is what I thought.

Com. Hassan: But some privately owned media houses, I thought are even run by political parties. So, I am relating it closely

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to a system political ideology or maybe the Opposition or the Government.

Prof. Yash Pal Ghai: Well, what we want to do I think is to, I think we have to balance the freedom of the media with the

responsibility of the media, see the duties. Anyway, let us hear more views.

Com. Githu: Mr. Chairman, I would like to reinforce the view by my friend Com. Hassan. Unless we are to request all

public transporters to avail their vehicles to carry voters on election day, and no restaurants to feed voters on their way from the

voting house, we must have consistent rules in the Constitution.

The rule may appear in 50 Constitutions of the world. We live in Kenya, we are talking about Kenyan circumstances. Any

investor who has gone out of his way to put money in a radio station, that is private, is beyond our reach. Unless we want to

rewrite the rules on compulsory accusation of private property. We must deal with public media, because this is a media

owned by the people of Kenya, and which is within our…. We can write non-discrimination regulations, and we can require

that the private media shall not be used for hate speeches, for war-mongering, for a million of one other things. But unless we

have Constitutional provisions allowing us to confiscate public or private property, there can be no justification for it.

Prof. Yash Pal Ghai: Yes.

Com. Prof. Okoth-Ogendo: Mr. Chairman everything is on the table. We are arguing from the perspective of the existing

Constitution, forgetting that we are trying to create new Constitutional norms, and therefore, everything is open, it is on the

table.

Prof. Yash Pal Ghai: John, Raiji then Zein.

Com. Kangu: Mr. Chairman, I do understand the arguments that are being put by my brothers. But I would like to state that,

we are saying that we must restrict expenditure during elections and during campaigns. Now, if we leave private media to

operate the way they want, if I want to go into campaigns and I own my own media house, and choose to use it for the

campaigns of myself and my candidates, how does that reflect on the restrictions on expenditure in campaigns? How does it

reflect in terms of one candidate having an advantage over the others?

And I want to say that, we look at it from that angle, but secondly, we can regulate the use of the public media during elections

from the point of or at the level of licensing. That when we are licensing media, and the Government is giving them airwaves

and so on, certain conditions are set on the basis of which a private media has to operate. And one of such a condition will be,

that during elections, they will have to agree equal opportunity to candidates so that we have a level playing ground, because we

are talking about private property, but here we are trying to create a level playing ground for purposes of elections. And I

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think that is the angle from which we should operate.

Prof. Yash Pal Ghai: Thank you. Raiji.

Com. Raiji: Thank you Chair. I fear we are confusing two concepts – ownership and regulation. The concept of regulation

of private property here, in Kenya is not new, we are not breaking new grounds. We have it in the banking sector where banks

are required to lend a certain amount to the agricultural sector. That is not interference with the ownership of private property.

And it is common in all countries to regulate the conduct of any facility, of any investment that is placed within the country. I

am aware that even a country like France, the other day and that, they require by law that a certain number percentage of films

screened, must be French made. So, there is absolutely nothing. In fact there would be everything wrong if we allowed

private media to be stopped or be controlled by one party.

And again, as my colleagues have conceded, that the same reason or basis or philosophy that we have for prohibiting them from

showing, for example, engaging with it campaigns, or scandalous affairs, is the same principle that we use to promote the

principle of fairness to all political parties, and I think that is a very legitimate recommendation.

Now, just a small bit on the issue raised by Com. Hassan regarding the resources. I think in addition to restricting the level of

expenditure, I think we also need to probably think of a mechanism of disclosure of resources or funds to prevent criminals and

others from purchasing an election seat, or even the Presidency. And I think that tells something now that we are in the process

of making a new Constitution that we should think about, particularly, in view of our experience in the last two elections, when

no man of people came and eventually influenced the outcome of election. And the election itself may not have reflected the

true feelings of the people who voted. Thank you.

Prof. Yash Pal Ghai: What is your precise recommendation on the\is?

Com. Ratanya: Yaah, my recommendation is that, candidates be required to disclose sources of campaign, donations,

exceeding say, maybe perhaps something like Kshs.100,000/- or maybe more. But I think the principle is that we have a limit.

Com. Zein: Thank you Chair. One of the way of treating media is to understand that it is the source of information which then

will either make people vote this way or that way. And if there are no rules which makes the access to media fair, then you

would have stealth results based on the information which people have. So, we must look at this on two lines. The first one

will be that, in terms of public funded stations and media houses, we can have very specific requirements. But then, on the

second level of private ownership, it doesn’t mean they become immune to civic duty and public duty, and I agree with Com.

Raiji that the regulatory machinery can be used to make sure that as many or all national campaigning parties and individuals

have access to the airwaves. But that does not include the right of a media organization to come out in its editorial policy to say

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we support candidate ‘A’ or party ‘E’. But it means that the private media will give structured access to all competing interests

or competing parties and individuals. But at the same time, it does not take away their right at the editorial level, to say, we

support party ‘A’ or party ‘B’. And we cannot treat media like other resources. For example, transport and so on and so

forth. So, three recommendations:-

i. We must isolate the things which we need to do at the legislative framework level and possibly even write these

ideas down so that we say, this need to go to the legislation in order to do that.

ii. But at the level of airwaves being a scarce resource, we must put in principles at the Constitutional level on how

they will be utilized to achieve national goals, we are going back to national goals.

iii. Then the third one is, declaration of campaign funding. I would even go lower than Com. Raiji and say, any

individual or political party which receives more than Kshs.50,000/-, they should declare it and say what the source

is. And I will further go further than Com. Raiji and say, we need to say that no political party may receive foreign

funding or even individuals. Thank you Chair.

Com. Prof. Okoth-Ogendo: Mr. Chairman, I just want to comment on the matter of question of the relationship between

public duty and private property, and to remind the Commission that the adoption of the police power of the State is not one

that we can question at this particular point. That the State has the power to regulate private property or private interest if the

public interest so demands it. That is clearly stated in Section 75 of the Constitution as it is now. It has always been an extent

of political sovereignty and it has always been part of our law. What we would be saying here, we are not going so far as to

say, that is an acquisition of property, because the transition from the police power of the state to eminent domain is one that

will require very careful delimitation. And we are going to deal with this not just the context of TV and media houses, but also

in context of land and in any event in which the issue as to whether or not private property ought to be regulated by the State

arises. And therefore, I don’t think we are breaking new ground.

And the other thing, it is anything that we can leave out. If you let the media to or if you allowed anybody, the Macharias of

this world to create their own media and start using it as part of their own campaign tool, and then you say that is private

property, I think we would be prejudicing and clearly violating a fundamental principle of public interest which is, that nobody

should be allowed to use the appropriate such a way as to prejudice what human call the common of the public interest, and

therefore, I would myself, rather than querrying the centres on TVs and so on, I would restructure it.

Com. Muigai: Thank you Mr. Chairman. I just want to remind ourselves that the great nation of America which is on the

forefront on the privacy of private investment and also on the freedom of the media and press, when on 11th September, they

needed to deal with the media in a way that was useful for their country or when they needed to limit the power of the media,

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private or otherwise for the good of the public, they went right ahead and did it, and they didn’t even need to legislate against it

or legislate on towards it. So I am saying that, I would like to add my vote to the people who said that, the media is a tool of

this country and when the public good is in question or needs it, the media should be there for the public good.

Prof. Yash Pal Ghai: Ibrahim.

Com. Lethome: Thank you Mr. Chairman. Whereas I agree that there should be a balance in as far the coverage by TV and

radio stations is concerned, but I was just wondering how achievable that is. I happen to be a director of Ukraim, which is

privately owned by the Muslims or Supreme Council of Kenya Muslims, and I was just wondering, suppose during the

campaign, one of the candidates comes and buys airtime from us, definitely because at the end of the day what matters to the

shareholders is the balance sheet, we will accept. Am I going to give the same coverage to another candidate who does not

come and buy airtime from the radio station? So I was wondering how achievable that is in as far as the privately owned

stations are concerned.

Prof. Yash Pal Ghai: Hassan.

Com. Hassan: I think Mr. Chairman in some ways, what I wanted to raise has been raised by Com. Ibrahim Lethome, and

although we all seem to be discussing what I would call the details which may have gone to legislation, and we are even ready to

put here the principles which will govern such legislation, I think just because I like such formula or have similar or such kind of

provisions, it is not very helpful. We need to very clearly reflect the Kenyan situation as the others have said, and I for myself, I

think, I find great difficult when you say all TV and radio stations should be required to ensure balance between political parties.

It is extremely impossible to achieve this balance, because, at the end of the day as Com. Ibrahim has said, of course you can

put limitations as Com. Zein has put in and Com. Raiji about the head campaigns, the head speeches, enticement to public

violence, security, tribalism, maybe you can limit the kind of business they can broadcast, but you cannot require them to give

the same coverage to all political parties and political events, because, for one, they will cover what is news-worth for them in

their judgement as news houses. So, they may find one politician’s rally, very news-worth because of what he says or the kind

of campaign speech he gives, and they cannot want to cover somebody else. So, and that person now cannot come back and

complain that I am being given media black-out, maybe he is very boring or he doesn’t give views worth information. So I think

we need to strike a balance between this and I for myself have a very big problem with this rule as formulated. Thank you.

Com. Githu: Mr. Chairman, I am surprised that my teacher friend, Prof. Okoth-Ogendo says, police powers of the state is

one of the doctrines in our current Constitution. When I may say it a minute ago, the power of compulsory acquisition is in our

Constitution, he said, all issues are on the table, it would appear to me that, that must include police powers and all other

powers.

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Mr. Chairman, I think we can salvage what is important here. The principle I think that we have all agreed is that we can

require the private media to provide some access to persons who are seeking political office. We however cannot get round

the question, that their primary purpose in large investment is to make a return. I think it will be unrealistic. I think that it would

be unenforceable.

I think then, Mr. Chairman, that what we want to do here is not get a balance between political parties, because even that

phraseology, I am not sure for my part, I understand what it conveys. If as my friend Sheikh Lethome has said, a radio station,

a TV station is selling space, it has been making losses for the whole year except during that month of political campaign, we are

saying through the Constitution or any other organ, now, you cannot recoup your losses or the investments that you have done

because, you must give KANU - 4 hours, DP - 4 hours, SAFINA - 5 hours, and so on and so forth. It is a ridiculous

proposition in my view with tremendous respect.

I don’t think that in trying to allow access to the media including the private media, we can approbate the fundamental principle,

including the freedom of the press. In this country we have always said, the press operates from a position of subservient to a

regime of law that terrorizes journalists and media owners.

We write a new Constitution in which we state, ‘hang on now, we are even going to take more from you’.

(Interjection) Com. Prof. Okoth-Ogendo: Now, are you through’?

Com. Githu: I was then going to say Mr. Chairman, let us formulate the principle in the following terms, and that all persons

engaging in political campaigns shall be granted access to the public and private media upon such terms and conditions as

maybe enacted in an Act of Parliament. And leave the details to be worked out there, to be negotiated with the media houses

themselves, so that they can say what they cannot afford, what is practical, what is reasonable, then we move.

Com. Prof. Okoth-Ogendo: I think what we are doing here is agreeing on the general principle. And the general principle is

that, the media – private or public cannot be immune from the principle of the State. The actual details of it would have to lie in

the province of the legislation not the Constitution, I think that is what we are saying here.

I want to understand, Com. Githu, would that satisfy you?

Com. Githu: Very good point, but what I am opposed to Mr. Chairman is this Constitutional balance between political

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parties. Because, I think it is such an epilogues way of phrasing it, that ultimately it may mean

nothing. We may give each party one minute one day.

Com. Prof. Okoth-Ogendo: Let us have John Kangu……….

(Interjection) Com. Baraza: No, Mr. Chairman, I was next.

Com. Prof. Okoth-Ogendo: Ooh, you were next. Sorry.

Com. Baraza: Thank you Mr. Chairman….

(Interjection) Com. Prof. Okoth-Ogendo: I took over without courtesy.

Com. Baraza: Mr. Chairman, I was going to the agree to the extent Com. Githu has agreed with you, but probably broaden

the principle to require some rule, I don’t if that will come into the legislation or where, some rule that will make the media

adhere to the general principles of enforcement of democratic ideals as they deal with political parties. I would go with that.

And then on the issue of expenditure of money, I would agree with (who said Kshs.50,000/-)?

Com. Raiji: Me.

Com. Baraza: Yes, Com. Raiji. I think I will agree with Com. Raiji that money beyond Kshs.50,000/- should be disclosed

and explained to the public how it is obtained. Thank you.

Com. Prof. Okoth-Ogendo: But again on money, we are not going to write limiting the Constitution. I think what we are

agreeing on is that there should be limitation.

Com. Baraza: Yes, the principal of restriction, I have no problem with that. So, where we feature the Kshs.50,000/- will

come later, but the principle, I do agree with the principle of restriction.

Com. Prof. Okoth-Ogendo: Now, John Kangu.

Com. Kangu: Now, Mr. Chairman….

Com Nunow: I was the last one on the list, identify my name.

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Com. Kangu: Let me finish then you come.

Com Nunow: No, I have to be identified by name.

Com. Prof. Okoth-Ogendo: Nunow?

Com Nunow: Ayee.

Com. Prof. Okoth-Ogendo: go ahead.

Com. Nunow: Thank you Mr. Chairman. I think when we talk of rights we need to start with where we are, so that we all

contribute as required. I will certainly support those people who advocate for responsible media operation. And I am strongly

for the general principles of regulation of media operations rather than control. I would really be hesitant to enforce any control

that may be seen to border acquisition. But regulations certainly, at various levels, and some regulations could be much stronger

and much categorical than others.

Having said that, I would comment on the last but one bullet which starts ‘All TVs’ and say that, to me, this appears to be two

points, separate points that are merged. One talks of the radio station and TV station with regard to reporting to political

persons, and the other talks of political parties and how they should be required to debate their policies. And therefore, those

two points should be separated so that the second point which all parties should be required by law to broadcast and base

their policy messages through the state media is crucial. This is failing the manifesto of the public. And if that is the case, it

shouldn’t be tied with the need for airtime or reports in time.

Then the last bullet talks of restriction on expenditure of money and resources on elections. I think this goes beyond what Com.

Raiji and Com. Zein commented on regarding restriction on how much you can receive from abroad, and whether indeed you

should receive anything from abroad or not, from foreign account. But, this talks of how much you can put in, in terms of

campaign.

We need to, I would probably be happy if the committee that have put some thought into this, if they gave us specific figure, and

this would be good because, the convenor of the committee would probably be the next to speak. If you could shade light on

what they had in mind, as the limit beyond which it would be an offence that to commit in a campaign funding.

Com. Prof. Okoth-Ogendo: Thank you very much. We would have Com. John Kangu, then Charles Maranga, then I think

we have to move on.

Com. Kangu: Mr. Chairman, first I want to say that, after listening to my colleagues and reflecting what we discussed

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yesterday concerning independent candidates, that our formulation is in fact not addressing the problem properly because we

seem to be talking about political parties in disregard of independent candidates, and so, there would be need to reformulate the

rules. But that aside, I still would like to hear from my colleagues what they think about the link between restrictions on money

or resources that can be used in elections and the use of the media.

I would like them to talk about that. Because, if we say we are restricting how much resources an individual can put into his

campaigns, and we leave it open for someone to increase his resources through use of his private media for campaign, then we

would not be limiting the resources, and I think we must find a way to link the two.

Now, coming to what Dr. Nunow has said, it is my view that since the inflation is an issue that cannot be easily predicted, what

we need in the Constitution, is the principle that the amount of money or resources one uses in elections must be restricted.

Secondly, the sources of those resources must also be restricted. To what extent, I think it is an issue that can be dealt with by

Parliament from time to time taking into account the inflation trends in the country. So, the Constitution should only carry the

principle that we restrict the amount and the sources, but Parliament can decide the amount and sources from time to time.

Com. Prof. Okoth-Ogendo: Thank you John. Charles.

Charles Maranga: Mr. Chairman, I think, let us approve this principle that all TVs and radio stations should be required to

ensure balance between maybe political parties, independent candidates during campaign period. And Mr. Chairman, maybe

during that period, the private stations, if they are doing business, maybe the Government can be able to subsidize. If Mr.

Chairman we are going to accept the principle of funding political parties, then, that is the kind of subsidy which can go to the

TV stations and radio stations. But otherwise Mr. Chairman, the principle should be approved. Thank you.

Com. Prof. Okoth-Ogendo: Zein do you agree to move on?

Com. Prof. Okoth-Ogendo: Well, let me just take two more – Zein and then the Pastor, and then I think we must move on.

Com. Zein: Few things, Chair, that:-

i. That we had specifically said as a Commission that part of the principle that we are going to lay out in the

Constitution, we are going to have ideas. At the beginning we were thinking of having complete legislation

framework to accompany the Constitution, to take care of the problems of our independent Constitution. That

could not be done, it cannot be done now. But that does not mean that we cannot isolate ideas for legislative

framework to accompany some of these things we are saying because we keep on mixing principle with details

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which need to go to legislation. So that is the first point. I would hope that the people who are preparing this

paper, will also be required by Plenary to isolate ideas for legislative framework.

ii. The second thing, Prof. we need to also, this formulation the way it is now leaves a lot of questions. We need to

isolate between local and national media and the principles applying to national and local media. If a local candidate

wants access to national media, what happens? Again, what if a national candidates wants access to local media,

and so.

iii. But the last point which I said is the third and last point is, Chair, I hope we will be able to come and deal with the

concept of media, other than the way we are doing now through the back door in terms of introduction of media in

the sense that it is part of the election campaign. In reference to what Com. Raiji said, which he made reference to

the French experience in terms of the cultural content of media and how much they are required by the Constitution

to allow French culture to access media, that is something we need to deal with separately other than just elections.

So I hope we will be able to come and deal with media, not only through the election campaign or through

freedom of press provisions, but deal with media on its own as a Constitutional question. Thank you Chair.

Com. Prof. Okoth-Ogendo: Pastor Ayonga.

Com. Pr. Ayonga: Mr. Chairman, it is very easy to say things and put some rules in place without having the machinery to

control a regular account of the actual expenditure. Now, I am thinking of this, when we say Kshs.50,000/-, that is just an

example, that, that is the amount that could be allowed for a candidate to spend. How do we account for their motorcade that

follow this person? There will be so many, some are going to use even helicopters, some are going to give gifts in the forms of

sugar, salt, these things that are given under the table, which matter very much to the mothers out there and which are very

meaningful to them. How are we going to control this? A person can say, yes, I am spending Kshs.50,000/- when he is

spending millions at the expense of the other person. Thank you.

Com. Prof. Okoth-Ogendo: Thank you very much Commissioners. I think there is broad consensus on the principles of

opposition which is here, which is that, there needs to be a certain amount of control over the media, to the use of money and

machinery that the three arms as the Americans would call it, in the context to the election process, and that does not resolve

the question of what we are going to do when we discuss the media as the media. This is, we are talking here in the context of

elections. That is the first point. I think the details of what that control is and the extent to which it should go matters, but I

think ought to go into complimentary legislation.

Secondly, I think there is broad concern that when we make recommendations of this kind, we should try as much as possible

to isolate those principles that ought to go into Constitutional text and those that ought to go into complimentary legislation. A

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lot of those are coming out here, but, taskforces would help the draft people and us if some of these were isolated so that later

on when we do a compendium of complimentary legislation, we are able to see this a lot more clearly.

And finally, I think what we are deciding here, does not prejudice what we may decide when we deal with the substantive

matter when it comes again, and I have said that previously, but I think we should remember that when we come back to the

media, as a media or the use of money or machinery, we should not then say that in elections, we said we should limit them and

therefore there are no rights, when we are discussing on their own. So, we have to keep our recommendations, we have to

remember what we have recommended in their particular context and not views of context to prejudice recommendations that

might be made earlier.

I think Mr. Chairman, that then means we are through with point 9 and I hand back the chair to you on election observation.

Thank you.

Prof. Yash Pal Ghai: Thank you very much Prof. Ogendo. So, while we have recommendation 10 which deals with election

observation. Any comments on that? Yes, Zein.

Com. Zein: Chair, when we had the workshop with the Election Commission of Kenya, my understanding was, they were

drawing a distinction between observation, monitoring and evaluation. And they were saying that, they will not allow anybody

in Kenya to be involved in monitoring and evaluation, but they will allow somebody to observe. And, I wouldn’t like to suggest

that maybe we need to, when we are discussing this particular issue, to see if we can find a common ground between

observation, evaluation and monitoring. And, then reconcile with what the Electoral Commission was saying.

Secondly, that the question of rules which will generally govern common practise or standards by all observers, and then

secondly the accreditation process of these observers, and then thirdly, what would they exactly be their mandate? Will they

only be measuring compliance of the different actors in an electoral process to the election law or will they have more effect

including that what they observe can be used in a court of law as a basis of evidence when somebody petitions. So some of

these for me, are some of the fundamental questions we need to deal with.

And more importantly, draw a distinction between local mechanisms for observation, monitoring and evaluation and then also

draw a distinction between what happens to what, worth the output which they bring. Do they find it through the Electoral

Commission or do they make this public? At what point can they make their findings public? Just after elections or can they

raise questions of compliance during the election process itself. Thank you Chair.

Prof. Yash Pal Ghai: Raiji.

Com. Raiji: Thank you Chair. I am alarmed at the position of the Electoral Commission, that they may not want to have the

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process which is critical in the functioning well and democracy monitored by independent Kenyans. I think that is all the more

reason why there should be monitoring. I think it is important probably, maybe at this stage alle we need is, to say that in

principle, that we agree that the observation and monitoring of elections, and public evaluation be carried out, and then the

details can be worked out in legislation if necessary. But I would imagine that, since this is a public exercise on which a lot

depends, then it is absolutely necessary that we have independent observers, particularly because, in the case of malpractise,

and we have witnessed very many in the past, then I think it is the Electoral Commission itself which is on the spot, and which is

normally made a party to the proceedings. So I think it is absolutely important that in principle, and I don’t think anybody

would disagree with that here, we allow monitoring and observation of elections by local and even international observers.

Assuming that they are carrying out, or we are carrying out a clean election in accordance with the rules that we have set for

ourselves, I don’t think we have anything to fear even if the whole world came to watch. Thank you.

Com. Lenaola: Thank you Mr. Chairman. Com. Raiji said that no one should disagree on putting this in the Constitution. I

wish to say that I am not for election observation, and monitoring to be in the Constitution. The reason why we ask monitors

and observers to come, is to confirm that elections are fair and that they are conducted within the framework of the law. And,

that duty to conduct elections fairly, we are going to put in the Electoral Commission, their duty is mainly to observe so that if at

all they should appear anywhere in the entire legal setup, it should be within the law, the statute not within the Constitution. So,

I don’t think that is very important, that probably in the Constitution.

Prof. Yash Pal Ghai: Nancy?

Com. Baraza: Thank you Mr. Chairman. I think this will touch on the role of civil society in public affairs, including elections

and in the Constitution we should recognize that role. I don’t think it should only be restricted to legislation, we should

recognize it as a principle in the Constitution.

Then as to the necessity of election observation, monitoring and evaluation, I think it is necessary, at the electoral process

workshop, we didn’t have a representation from IED, and they did evaluate to us the benefits that they feel have come out of

their role in election monitoring and observation, and I think we should recognize that, and have a principle that will be effected.

Thank you.

Com. Maranga: Mr. Chairman, in order to ensure that there is free and fair elections, election monitoring and evaluation is a

necessary requirement, and Mr. Chairman, I want to go further and say that, the reports from the monitors or from the group

monitoring the elections, should be able to be availed to the Electoral Commission. So that, actually, it can be used as a basis

of taking legal action just in case there have been serious malpractises. Mr. Chairman, this is one thing just to monitor, and

observe and if you evaluate and you don’t take action, then I don’t see the effect of that. So Mr. Chairman, I hope that we will

be able to give a way forward of ensuring that those reports can be accessed by whoever, whether in the Electoral Commission

or anybody we entrust to that, so that they can take action on the various malpractises they have been able to see.

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For example, Mr. Chairman, the issue of people using excess money without being declared, these are the kind of people who

can be able to let us know. So I think it is something which should be recognized in the Constitution. Thank you.

Prof. Yash Pal Ghai: Thank you. Prof. Kibira.

Prof. Kibira: I think, Charles has said what I was going to say, and I just confirm that I think they will be need to recognize

the principle and the importance of the monitoring the elections and I think the rest of the details are as either as said, you know

what is going to the legislation. But I think the principle must be there, and individuals and groups both national and international

should be allowed to monitor the elections. I think it is one of the ways of ensuring that we maintain the international standards.

Prof. Yash Pal Ghai: I don’t want to say any of the various support from the proposals, I think every proposal, we need to

consider and a draft we think can help us, what should go into the Constitution and what should go into the legislation or

regulations. I think we have a general agreement and we will look into a draft prepared for us. Thank you very much.

(some question from one of the Commissioners which is far from the mic hence inaudible….. in the Constitution?)

Prof. Yash Pal Ghai: No, I think what we will do is that we acknowledge a general right of people to be able to monitor and

observe, and leave the details in the legislation.

Com. Hassan: My concern Mr. Chairman is the fact that election monitors are people who owe their allegiance elsewhere,

and there is no way the country can have control over them or hold them responsible or irresponsible for these polls, which may

be misleading or something. So, we need to look both sides of the coin and see, if we are holding elections, we have

independent Electoral Commission responsible and entrenched, I don’t think we have sudden huge fear that elections will be

irregular, and if we do then, it will be the responsibility of the Electoral Commission to be pinned by the Constitution. Because,

election monitors and observers are people who owe their allegiance elsewhere, whose controls are not related to the interests

of the nation. So we need to be worried of that.

Prof. Yash Pal Ghai: Are you thinking in terms of foreign observers, monitors or…..

Com. Hussein: Yes.

Prof. Yash Pal Ghai: I mean, many of the monitors of course are national, they are not international, but they are also

international.

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Com. Hussein: Yes, they are.

Prof. Yash Pal Ghai: So you want to make a distinction in the Constitution or lobby in the……

Com. Hussein: Something, if we really have to put that in the Constitution, there must be that distinction.

Prof. Yash Pal Ghai: Okay, let us hear more views on this. Nancy and then Zein.

Com. Baraza: Mr. Chairman, I think Kenya is part of the international community, and is kind of devout itself with the

general practise around the world. Election monitoring and observation is an exercise which is being accepted internationally in

most countries, and I don’t think we can isolate ourselves and say, those are foreign. I think if we can have regulations to

ensure that what they are doing is within acceptable international standard, Mr. Chairman. I will be worried of isolating Kenya

from the larger international community.

Com. Zein: So, I will start by saying that, even when we are isolating things for the legislative framework, we must isolate the

issues. One of the issues clearly, the role of international or foreign observers or monitors, evaluators, call them whatever you

want to call them, and the local ones.

Are they going to have the same role? Are they going to have the same jurisdiction? If we are going to say, allow part of their

findings to be the basis for measuring compliance, even by the Electoral Commission, are we going to listen to both international

and local ones, but also there are fundamental questions even for local ones. Are there going to be national statutory standards

of independence for instance? Can anybody create observers and monitors? For example can a political party sponsor an

observer organization? These are some of the questions we need to ask and, in the legislation, there have to be an

accreditation process which is fair, which is independent, and which ensures the fairness and independence of the monitors.

For instance, if there are a million applicants to be observers, either individual capacity or as corporate bodies, who is going to

be allowed in, under what basis, and who is not to be allowed out? How does this affect the mechanics of body at a polling

station? If you have 50 or 100 observers, so there has to be a balance between allowing, in fact I would say that, I agree that

observing is a right, but it should be seen as a restricted right with a lot of conditions to it. Thank you Chair.

Com. Prof. Okoth-Ogendo: Mr. Chairman, I have a feeling that we don’t want to say, in the new Kenya Constitution that

elections must be monitored, if we think that there is value in monitoring and observing that. You don’t want somebody to

come here and find the Constitutional reference demanding that elections should be monitored. I think the whole process of

monitoring elections is like…. the international community is saying, we don’t trust you, unless we come there and find out what

you are doing. I think we should concentrate this kind of recommendation on strengthening the Electoral Commission and

giving it powers to decide on whether or not, monitoring is going to be done. But I would hesitate myself to create this kind of

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obligation in the Constitution. Even if the value of monitoring and observation is considered.

Com. Kangu: Mr. Chairman, I would like at this point go back to what we are trying to address. And in trying to identify the

problem, I will go back to our ideology which we said, it is republican and incorporates the question of accountability on the

part of those who administer the common power. Now, if we say we are going to rely on the Electoral Commission, we need

some mechanisms of accountability, of getting the Electoral Commission to be aware that it is accountable to the people and

that if they don’t perform properly, somewhere, somewhere, is looking at them and maybe able to identify the mistakes. So in

my view, the basis for an observer to re-system a monitoring system, an evaluation system, is the principle of accountability, the

principle of transparency and the principle of participatory governance. That should justify us to have some little clause in the

Constitution, I do not know how it will be framed, we may not use the term observe or monitor, but we must find some phrase

that can be used to say that the process of elections, the mechanisms of elections must be done in an open manner that, infused

in it, some accountability mechanisms.

And I would then say, the details such as what Com. Hussein has talked about, must be reflected in a statute, in an Act of

Parliament that will be able to say, do we accredit foreigners or not and so on, do we accredit locals and so on, and what

standards. We put it so well or boldly, but we must set certain acceptable standards that people must satisfy before they are

accredited. And of course he went further and said, there is need to limit the numbers and all that. All these things can be

dealt with in legislation, but there must be a little mention in the Constitution.

But then, another issue which we are not expanding all and I agreed, we have not brought it out here, is the question of, when

we talk of elections, none of us seems to be thinking of the voting day, but elections are more than that. The registration

process of voters is part of elections, and it is for that reason that we must institutionalize the concept of observation, so that in

deciding we should observe, we are not going to take these bodies who will merge to observe the voting day. We must see

those who have capacity to even observe the registration process, the preparation process, so that they are accepted. And in

electing, we still must have that principle and I want to plead with the members, that having set out an ideology, let us try as

much as possible to argue everything we do on the basis of that ideology, let us try to sound everything we propose or oppose

on that basis of what we have set out.

Com. Hassan: Thank you Mr. Chairman. I think much as I hear what John is saying, I don’t think there is no use in creating

institutions or putting principles in the Constitution as large. We should be able to see the outcome. Once for example to put

that right into this Constitution, the process of election monitoring, observation and evaluation, so what next. Suppose those

institutions which have got to use these rights, discover that there are certain anomalies in the election process, what then next?

Are we thinking of the consequences? Are we giving a certain right, for example to institute….. are you thinking beyond, just

the election observation, monitoring and evaluation? Of course you tend to think that this is a self-serving standard that is only

going to be there, and that they going to say it is okay or not?

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And then Mr. Chairman, if it is the same practise in the country, it is true that we have international observers who come from

other countries to come and observe elections, but as Prof. Kabira said, most of them sent to our country simply because they

don’t trust us, they don’t trust that we are going to conduct free and fair elections, although the other way is round is also true,

in that, they sponsor people to leave our country and go to their countries, especially the north, not very much to observe the

elections there to check whether they are free and fair, but maybe to study and to learn more about those who are there. So, it

is actually a two-way thing. But if that is the same practise, I don’t think that the issue of election monitoring observation and

evaluation has been in a Constitutional provision, even I don’t see any compulsory experience here, but is that also the norm?

Do other countries also provide for this in their Constitutions? If not, then why are you departing from the norm?

Com. Bishop Njoroge: Mr. Chairman, sometimes we tend to forget our history. We are not working in a vacuum. We are

what we are today, especially in terms of elections, because of what people have done in monitoring the election. If we did not

have monitors, I am sure there are many areas which would have been quite privileged in terms of electing the people they want

in Parliament. If we say, because we are going to have an independent Electoral Commission, we will not need monitors

because the system now will be for proof. I think we have over-reaching it. Why we need monitors is to keep the Electoral

Commission independent. You create an institution, create something to help that institution to keep to its role.

I would urge the members to accept that this is a very important principle. It is a principle we must uphold just for a few years,

to make sure that in our transition, we will be able to have a system founded on principle assistance founded on independent.

Mr. Chairman, there is no use of creating institutions which have no one check. The institution of elections is checked by

monitors very much. They are the people who will tell us what is happening in that right. They will raise the outcry and then,

other systems now will go into it. The same fact that we are worried that we are autonomous, we don’t want people to

interfere, the danger for interference are later but the dangers for leaving it without election monitoring, and I would therefore

recommend, we have election monitoring and observation. But then, at the onset, make rules in a subsidiary legislation, make

rules as to who will be omitted and those are the principles they are supposed to follow in their monitoring.

Com. Kabira: Thank you very much Chair. I wanted to build on what Bishop has said. I think we have to remember our

past in terms of elections, and at the same time, I believe in ourselves as a nation and our capacity to be responsible to our

people, but at the same time, recognize that this is a process that has been greatly abused in the past, and I think between

wanting to be nationalists and believing in ourselves and then recognizing the past, and the potential for dictatorship in the future,

where again you lose control and the Constitution can also be abuse and so on. I think we do not want to tie ourselves to say,

we do not want foreigners and so on.

I think, I would agree with Com. Kangu and Bishop that we retain the principle of election monitoring as one of the checks to

ensure that the electoral process continues to improve and continues to be free and fair, and at the same time, like Com. Zein

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had said, we develop those rules which we can change if need arises.

Com. Githu: Mr. Chairman we are creating institutions and framework, and no one is saying that observation and monitoring

is irrelevant, so that we don’t need it. But we are saying that in the context of the Constitution, we must have institution

framework. And I don’t see it when we look at monitors and observers.

And two, to hold the report, when they finish their work, the make reports which they publish to the world. When the effects

of those reports in terms of the Constitutional process, I don’t see anything. So, I think we should look at it in terms of the fact

that, there is already a body which is set up by the Constitution whose mandate is to conduct elections, and therefore that body

must also regulate those who are coming to observe elections. I have a system in now. And then, we must then think of what

actually has to be beyond, what happens when the observers and monitors have done their work? I don’t see that the

Constitution can actually create an institutional framework for these observers.

And coming back the question of history, we know that in fact in this country, in the last two elections, we started to say that

observers have been reigned in by the rules that were created. So the fact that they have been there does not mean that

democracy will necessarily enhance. Some of them were obviously very bad to certain sectors of the electoral system. So, I

think we should be careful and we don’t put every institution, every issue into the Constitution. We all agree that this is a very

important issue, but not in the Constitution.

Com. Lethome: Thank you Chairman. I will begin with an observation. Com. Githu seems to be the only Commissioner

with a microphone for his exclusive use, I don’t know why. (laughter) Mr. Chairman, after listening to my colleagues talking

about this issue of observation and monitoring, I couldn’t help asking myself, and I will answer myself, don’t worry about the

answer.

If monitoring and observation an end in itself or a means to an end. The answer is, it is a means to an end. The end being,

ensuring fair and transparent elections. How do we achieve that? Do we achieve that by the mere fact that we have provided

for observers and monitors? I think we will achieve that more by providing for good electoral laws, and then the kind of

Electoral Commission that we shall have. So, I am convinced now, and even after listening to colleagues like Isaac and Isaack,

I think this is an issue that will into the legislation, not into the Constitution. And in fact I was quickly, under the table I was

looking, I was trying to go through a Constitution of a country that I don’t want to reveal here, and many other Constitutions, I

think all Constitutions of the world that exist today, that have provided for monitors and observers in the Constitution, I think

this is an issue and we should not deliberate. And Githu, I urge you not to talk after me please.

Com. Githu: Mr. Chairman, I will not belaber the point. I agree entirely with Com. Lethome, and I am happy first to agree

with Com. Prof. Okoth-Ogendo. There is a sense in which when we put in the Constitution, we suggest that we are creating

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mechanisms in which we have confidence. I think Mr. Chairman, the consensus has emerged. Please let us move on.

Com. Maranga: Are you the Chair?

Com. Githu: I am suggesting to the Chairman that a consensus, you are within your rights to suggest to him that there is no

consensus.

Prof. Yash Pal Ghai: So, let me say there is a consensus, I think there is a consensus, I think we all leave in the value of some

monitoring process, I think it will light only on the institutions we set up then. We are hardly sure they will do what they are

supposed to do, I think there is the broad agreement that, if this is effected in the Constitution, it should be in a very minimal

way, that it is a complex issue which requires standard rules, system of accreditation, and those that get stern in the regulations

or in the legislation, but I would like to suggest that maybe, one thing we may need to come back to, to think completely and as

a separate issue, is the whole question of people participation.

People participation is one of the cross-cutting themes of the review Act, and it was highlighted by Mutakha when he presented

the republican idea. And I think we could somewhere there have some formulation which would enable them if they wish to

monitor or we can use still the wording. But essentially, I think this matter will be dealt with in the report in the first instance,

and then maybe in the legislation. So, I broadly accept Ibrahim’s compromise, and so perhaps those of you who have

experienced this, could formulate three-four sentences, it would go in a report as a guide to legislation, and then we will see

whether in the general statement about people participation, we could have some reference to that. Thank you very much.

Thank you. It has been a very useful discussion. Thank you very much indeed.

Eleven, which should be the Electoral Commission. Some of these issues did come up when we looked at the general question

of independent commission and independent officers, but we didn’t deal with them conclusively as is not in the context of the

Electoral Commission, and I suggest we use this opportunity to firm up our recommendations on the Electoral Commission,

even though we may need to go back to the 6th committee again. But let us use this, because it is relevant at the moment to go

through reforms proposed in Section 11, let us see if you are comfortable with that. I am waiting for comments, yes. Yes, Dr.

Nunow.

Com. Dr. Nunow: Mr. Chairman, the disadvantage of speaking first is that you have no previous responses that may be part

of the speaker’s response, but I would like to comment on Bullet No. 2 where the committee talks of appointment following a

short-list mechanism. Who would be conducting this short-listing mechanism, and how would those applicants be mobilized?

Is it true gender advertisement, go somewhere and being short-listed, it is not clear. We are just stuck at the short-listing point

without preceding procedures for inviting applicants and identifying the authority to conduct that short-listing. Because, for me,

that is where the impartiality begins. If one is not in the short-list, then it means to really be left out at that stage. So, it is

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important to make it full proof right from the beginning.

And I will suggest, that, it be by public advertisement, followed by an independent body that will be receiving these applications

and sorting it out by set criteria. Whatever that detail will be, that is a detail that I would like to get into.

But in principle, I think the independence and the impartiality of the Electoral Commission, being an issue that if long overdue,

and obvious a point must be such that they strengthen or reinforce that independence and impartiality. Because, at the end of

the day, an independent and impartial institution, in every sense of the world, financially, operationally, and name it, will be an

upset and will add to researching its role. So I would strongly advocate for principles that enhance the independence and

impartiality of the Electoral Commission. Thank you.

Prof. Yash Pal Ghai: Thank you very much. Next.

Com. Baraza: Thank you Mr. Chairman. I think I agree with this principle, in the sense they would to go towards

strengthening the Electoral Commission. But I just to be clear, when we were discussing institutions under management of

Constitutionalism, we were debating, we were wondering whether it should be the office of the Commissioner or a Commission.

I don’t think we settled.

Prof. Yash Pal Ghai: Ooh yes, this one we will deal with it when we come to this, the right for this.

Com. Baraza: Yes, okay.

Prof. Yash Pal Ghai: Do you have a recommendation?

Com. Baraza: No, Sir.

Com. Bishop Njoroge: Mr. Chairman, I think this is a very good set of proposals. I find nothing useful to add. Say for this

comment, that, I believe we should make uniform the process of recruiting Commissioners to all Commissions. If we decide we

want to invite applications through the media, it should be for all Commissions. Whether it is the Human Rights Commission;

the Gender Commission; the Electoral Commission or any other Commission. But it would be hard to justify treating

Commissions differently. That is my first point.

The second point is to reduce the Commissions. I think we have too many Commissions in this country that are too large and

unwildly and probably, affect their efficiency and performance, and I would like to be on record as endorsing probably the

Electoral Commission. I personally would say, seven Commissions.

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And two last points Mr. Chairman, I agree that the power to resolve electoral disputes on the spot should lie with the

Commission. Right now, as you may have heard from many people who spoke to us, a returning officer can refuse to accept

favours, and unless that candidate files an election petition, nothing can be done. I agree that the Ugandan model is useful.

And finally, I agree and I think Prof. Okoth-Ogendo mentioned this yesterday, that political parties would be a very useful way

of resolving the question of political party registration and accountability. At the moment, the Registrar of Societies who is an

officer of the office of the Attorney General, take that function with all the political problems that, that entails. So, I endorse that

as well. Thank you.

Prof. Yash Pal Ghai: Charles.

Com. Maranga: Mr. Chairman, I have a problem on the person who finally appoints the Commissioners. My suggestion

would have been maybe, the Speaker of the National Assembly, because these people maybe will be under, I mean there will

be so much about the elections. So, Mr. Chairman, I hope, if you can consider changing the appointing authority for that

Commission, even when the members have been short-listed, vetted and passed.

The other issue I want to raise is on the criteria for membership, which we are saying, somebody should not include those

having any recent active political party activities. Mr. Chairman, that, I don’t know how you define that, maybe even if

somebody was campaigning for somebody in that active political activity, I really need the definition of that, because, Mr.

Chairman, there are people during election time, will be able to participate in various political activities, and I think it is a right

for every Kenyan to participate. So, if you are going to vet the people going to be Commissioners, I don’t see why that point

comes up.

Then, I also want to endorse the number of Commissioners to be 9.

Then the last point I want to comment on, in the last Bullet, where the Electoral Commission may need to take over from the

Registrar of Societies, that means the registration and registration of political parties. It feels like even the group which is

recommending this issue, is not very clear on that. And Mr. Chairman, I want to propose that the Electoral Commission should

not deal with the registration and the registration of political parties. It will actually take away that independence of the

Commission. So I think the registration of political parties should be undertaken by a separate organ. Thank you.

Prof. Yash Pal Ghai: Raiji, Zein and Lenaola

Com. Raiji: Thank you Chair. This is true our committee had dealt with this one, and we had recommended 8 – 10

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Commissioners, but, like we did probably in the other Commission. But Chair, on second reflection and following the debate

that we have been, first I am just wondering whether, this formula that, we should not dearly standardize these Commissions,

because the difficulty of course will come in, is that, once we have very many Commissioners, then all manner of interest groups

will start requiring to be included, and that may not necessarily add value to the performance of the Commission itself, because,

in practise what we need is basically one or three person Commission and then with no esteem of entrants recruited on merit,

who can then manage the day-to-day running of the commission, rather than probably included bureaucracy of Commissioners

who probably serve certain interests but may not necessarily be qualified to run this Commission. I just wanted us to ponder

over that.

Now, the other issue that over which we received a lot of recommendations, was this question of the Electoral Commission

being impotent to prevent the gross violation of the its rules of conduct that I noticed that the committee has quite rightly. I think

recommended that we give the Commission tips, and I think Mr. Chairman, that will be, as a matter of urgency, we have seen

violence, we have seen televised stealing of ballots taking place in polling stations and the Electoral Commission says, I assume

honestly, that they are unable to prevent it, rendering the whole exercise futile. So, I want us to consider other things, I think we

also need to consider, and I would by so recommend that police officers be assigned and be answerable to the Electoral

Commission during, just before, and immediately after the idea of voting, so that those officers will be answerable to the

Commission, and then they will be able to comply with the direction from the Commission, because I think that was the problem

why policing was very poor. Thank you.

Prof. Yash Pal Ghai: Zein and Lenaola.

Com. Zein: Thank you Chair. This I think will be one of the institutions which we need to pay a lot of attention to, both in

terms of the principle managing free and fair elections. But more importantly, because of our history as a people and as a

nation, there is no institution which demonstrates the principle of no trust in Kenyan institutions that the institution of managing

elections like that is the Electoral Commission. And we as a nation have tried in various ways to improve the level of trust into

this institution. Even when the opposition parties agitated that the current Electoral Commission should be expanded so that

their interest and people we trust will be included. When the chance of appointment came, people appointed not because some

people have argued that because of corruption or because of nepotism, but most of the people appointed, people who are very

close to them. The party leaders appointed either relatives or very close friends.

My suggestion is that, this was because of the low trust measure of the institution, and they wanted to appoint who they trust.

But that again brought the question of who are these people answerable to? So, I think we need to think through this, and

balance between what principles are enshrined in the Constitution, and what aspect of the legislation is then protected

somehow. I remember when we were talking in terms of amendments, there were few procedures. Maybe this is what can fall

under the third procedure.

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But in relation to the proposals which are being made, I would like to disagree with Com. Maranga on the appointing authority.

I don’t think there is any problem with the appointment authority, so long as that writer there, is clear that the President who

must accept is the man who recommended. So, what they will doing is just putting a signature to it. But if the President then

has a right to reject a name, then I will agree with Com. Maranga that, that right is not left with the President.

But, part of the problem I have with the proposals, they are the very detailed and this copy is good, but the problem I have is

that, in many places, it leaves too many things to interpretation. For instance, he says, which already somebody has noticed, a

short-listing mechanism. I would like to know what is this short-listing mechanism and examine its suitability in terms of, does it

reflect the principle that we should build a high trust institution.

Again, it says, not having any recent active political party activity – that is Bulletin 6. What does that ‘recent’ mean? Is it 2

years, is it 10 years? That is a relative term. Again Prof., aside from the points I am making, maybe it will be helpful for those

who are going to present papers later on and they have not printed them, to number these Bulletins, to make life a little bit easy.

Again Prof., on Bulletin 8, I would say that the last sentence is an argue sentence, we should just delete it. When you are taking

about ‘too many Commissioners’ means that, they begin to discharge and interfere in administrative parts which should be left to

the secretariat. I think when we had a workshop with the Electoral Commission, there were better reasons given as to why we

should have a small one, including, decision-making is efficient, fast, and so on and so forth. But I would like to suggest that,

the formulation of restriction of the number of Commissioners be changed slightly, it should not read between 4 and 12, it

should read ‘not less than 7’ and ‘not more than 12’ so that between 4 and 12 is amended in that version.

Again, I would like a principle that the Electoral Commission would have the power to make rules. That principle I don’t see it

included here, but a principle that the Electoral Commission would have the power to make rules for the efficient and smooth

running of the election process, I would also like the principle to bar the holders of Commissioner of Electoral Commission from

seeking public office or elective public office for at least 3 terms from the date they ceased to be Commissioners of …….

(Interjection) Prof. Yash Pal Ghai: Three what?

Com. Zein: Three terms. Yes, if a term is 5 years, then it means 15 years. When we kept on talking about, how do you raise

the level of integrity of public officers, I wouldn’t want an Electoral Commissioner who makes rules which then he goes and

benefits from in a term or two terms, maybe 3 terms and that principle is not here.

Again, in relation to vagueness of terms, he says, Commissioners should be persons of proven integrity, that is the 11th Bulletin,

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the last one. Commissioners should be persons of personal integrity, proven good behaviour and conduct, good measure of

service to the public. In one instance, we are requiring that holders of public service to have a certificate of integrity from the

National Commission of Integrity, but we are not requiring that here. I wonder why not. We can’t have double standards.

Response: It is already in Bulletin 4.

Com. Zein: That then should be linked with 11, they don’t need to appear separately. But more importantly Chair, a good

measure of service to the public. How do you quantify that? Is it in years?

(Interjection) Prof. Yash Pal Ghai: That is a general principle, thereafter, quantify the general directive to the party authority

to give you effective……..

Com. Zein: I understand that Prof., but I am saying in relation to when we are making legislation, maybe, we should be more

firm. Just in relation to that Prof., just an observation, that it was glaring that when we had a joint meeting with the Electoral

Commission, that suddenly I realized that the Electoral Commission is made up with a lot of respect, very many old people –

old men and women. There was not a single person who you could say was relatively middle-aged or younger person. They

were very old, and that to me informed me why they are very conservative. Thank you.

Prof. Yash Pal Ghai: Well, I don’t think that is what it is. Lenaola?

Com. Lenaola: Thank you Mr. Chairman, age is better, but just a number, but of course we saw that. Going to my issue, I

am not sure myself how we can link appointment of these Commissioners with the present devolution, because independence,

impartiality, diversity in this Commission must reflect the structure of the State. And so, I am not sure myself whether if it is at

that point, but I think it is an issue that I think we should address.

Secondly, on the qualifications of the Commissioners, I think, well we have put the principles, I am not sure what Kavetsa’s

committee decided on the appointments, but I think we should follow from what they did. On the age, on the education level,

on the service to the public, I think we had discussed that, we should follow what they had done.

And lastly, I think this is now the correct place to ask the Electoral Commission to facilitate the work of monitors and

observers.

Prof. Yash Pal Ghai: Thank you. Prof.

Com. Prof. Okoth-Ogendo: Chairman, several general points. When we were discussing Prof. Kabira’s report, it occurred

25

to me that we were talking about the three general types of commissions. The first group were the Complaints Commission,

and then what we might call Advisory or Regulatory Commission, and the third group Administrative type Commissions. The

distinction I was making here, was that, some of these categories of Commissions, particularly the Administrative Commissions,

the one that administer I think. And it seems to me that discussion here about the Electoral Commission is that they should

administer election, and anything that is not directly concerned with administering elections as and when they are due, or to go

to somebody else, for example, the de-renuation of constituency boundaries could be taken away from the Electoral

Commission and give it to somebody else because that is something that has to be done as and when it is due, but when election

are cleared, they manage it, they put into features. And I had suggested then and I want to suggest now without insisting on it,

that the administrative type of Commissions could be converted into Constitutional offices.

So rather than having an Electoral Commission, you could have an Electoral Commissioner as an office. What we are now as

a Commission, still has a very large bureaucracy. You might only want to have a Commissioner with the same bureaucracy as

increase the efficiency of the Commission. And I would want from the draft people to see an alternative formulation, instead of

an Electoral Commission, an Electoral Commissioner. Some of the other Commissions, the compared Commissions, you may

need several people in there because of the nature of the work that they are doing, the regulatory Commission, like the Integrity

Commission and so on, you may need Commissioners rather than just a Commissioner because of the nature of the work they

are doing. That is my first point that we should consider. Where the functions are purely administrative and is positive, instead

of having a Commission, we might do well with a Commissioner. That is the first general point I want to make.

The second point, I agree with those who say that the pertinent procedure for all Commissioners, whether they are

Constitutional offices or part of a Commission, they should be standardized, because, we have as we are saying, that those

Commissioners carry the same kind of level of seniority across the board, and I think we need to standardize this in some form,

and of course two ways of standardizing it, one is to write it into the job description or rather the description of each

Commission or to have a section that deals with methods of apartment of statutory Commissions, and that could apply to all

Commissions. So you don’t have to write that in every section that which deals with the Commission.

My third point is that, I think we should avoid the possibility of giving Parliament executive functions. We got to skip the

doctrine of separation of power very clearly. When we were talking to members of the public and they were saying, the

President shouldn’t do this, Parliament should do it. The question I always ask them, “are you giving that recommendation

because you trust Parliament or because you distrust the President?” And the other only four, that they distrust the President,

and they are looking for somebody else to perform these functions. I think we want to keep the separation of powers clear, but

also have checks and balances.

I would leave with Parliament vetting what the Executive does, but not Parliament being used to perform executive functions,

which is what has been happening here. And therefore, I will not agree with the suggestion that the Electoral Commissioners

26

should be appointed by Parliament. But, I would not mind Parliament checking the appointment of those Commissioners by

the Executive, because, administrative functions are executive and they have to lie with the Executive. Thank you.

Prof. Yash Pal Ghai: Kabira, and then Salome. We will close thereafter and have a break for tea.

Com. Kabira: I think I will skip what I wanted to say much earlier on has been said.

Prof. Yash Pal Ghai: Salome?

Com. Muigai: Mr. Chairman, I would like to thank Hassan through you for his suggestion, but I still have one little thing to

add, and that, that is that Kenyans kept on telling us time and time again to have a smaller Commission, that they wanted a

Commission, at no one point were we told having a Commissioner in all the places that we went. Maybe it is a new notion that

Kenyans had not thought of, but they did not suggest that.

I would also go along with Parliament vetting, whatever the President appoints, because that is what Kenyans told us all over

the country. There were a few times when they said Parliament was to take up the powers of nominating Commissioners. But,

by and large, the general consensus was that, whatever it is that whatever appointment the President did, Parliament should vet

them. Thank you.

Com. Wambua: I entirely agree with what Salome has said. In fact that is what I was going to say, that, with the suggestion

that, unless we have good reasons, Mr. Chairman, I think our draft document should reflect the wishes and the will of the

people. That is what the Review Act mandates us to do. And unless we have a very good justification why we want to do

either an ethical group or not, why we should do it or not do it, and therefore, I support the suggestion that there must be a

Commission. Kenyans said, we should have a small number of Commissions, and the number I think which was acceptable

was 10. 10 is a number which I think we can deal with and maybe, we should take that number 10, and I don’t think there

were any suggestions that we should currently as constituted, we should remove from them the powers to deal with boundaries

of constituencies. I think also that never came out in the few categories of Kenyans, and unless we want to give specific

recommendations in the Constitution, as to how the Electoral Commission should deal with the issue of boundaries, and maybe

then we give them the guidelines which are in the Constitution, I don’t think we should remove entirely from the their docket,

because, they have already institutionalized that system of conducting the review of boundaries, and everything else.

So to try and create a new institution which is going to do this work again, it seems to me to be a little bit not useful. But

maybe, we should leave it to the Electoral Commission, but now we work on a very good framework. Thank you.

Prof. Yash Pal Ghai: Thank you very much. I just like to make one or two comments then I suggest we have a break for tea

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and then when we come back, we can quickly make our decisions, give chance to talk over this matter during the matter. I only

have one or two comments.

I don’t think there is someone who is having a common procedure for appointment of Commissioners, but we also must

recognize that, Commissions are different in the functions they have to perform. So, we can’t be too rigid by one way, maybe,

to have the ultimate appointment by the President, but the President has to act in accordance with the rights given by a particular

body, in this case, it would be the Integrity Commission. We could say, let us go to Parliament for comments and then it goes

to the President, so, there is need for some standardization but we must accept and recognize the different functions the

Commissions do.

I think the idea of having a Commissioner is important to some respect, you will notice in the paper that I distributed but we

haven’t discussed, I have suggested certain functions should be vested in a Commissioner or in any Director, but I believe in this

particular case, for reasons sub-committees have given, we should have a Commission, even if it could be a small Commission.

I think to put everything on the shoulder of one Commissioner is going to be difficult, he may not find a person who is

acceptable probably, so I think a Commission, then, has a kind of balancing.

Then, I think I agree with Com. Lenaola, this idea of putting in the facilitation work of monitors, as one of the responsibilities of

the Commission. On the boundaries, it is true that some countries do have separate Commissions for boundary making and for

elections, but given our history that these functions have been performed by the same body, you will not always if you look at

the history of electoral system in Kenya, it wasn’t always the case, it has been the case for some time, I know that the Electoral

Commission has built up enormous database of population, topography, they now have the …… (inaudible) and the knowledge

to do that, so perhaps, agreeing with us, I think we could start living with them.

But all these are my personal comments, and I suggest we come back after tea, also to some of these points, of what we

omitted, basically I just believe that they were prepared on the basis of existing laws and these are improvements. So,

depending the points you make, are pre-covered by present legislation, and so, they were not touched on here. But maybe

they will help in serving in the reports so that, they either kept or reinforced.

But what I would like to do when we come back is to go through as we do one by one, and then make our decisions. So let us

say about 15 minutes, maybe 20 minutes to our break and then come back please. Thank you.

AFTER BREAK

Prof. Yash Pal Ghai: As I suggested before break, probably we could go through these bullet points, some of them need to

be brought together, but I will try to indicate that. So the first bullet point is, it is a matter of drafting, just to emphasize that the

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Commission is independent and impartial. It hasn’t by itself tried to emphasize the nature of the Commission.

And the second one, on the question of appointments, I think the way to go might be as follows: to indicate that the

Commissioners should be persons of….. then we can look at the bullet points, Next page, should be persons of proven

integrity, good behaviour and conduct, just for the appointing authority, skip that in mind, I see the difficulties then raised, but I

think we can leave it. The general guide, then we would say that appointment will be made by the President in accordance with

the recommendations of the National Integrity Commission. I use the word ‘adviseingly’ in accordance with the

recommendations. In other words, it is binding on the President, and after the President has appointed, then the names will be

proved by or given for vetting to the relevant body of Parliament.

So, is there anyone proposing or any comments on that? I see Prof. Kabira has one.

Com. Kabira: A point of clarification. The last time we were discussing the same issue of the committee of Parliament, the

question was raised as to we had assumed that the relevant committee will be there or whether they need to discuss it, I don’t

know, under Parliament I am not sure.

Com. Prof. Salim: Thank you Chair. I think what you suggested is agreeable to me, but the order gives me a bit of a

problem. I thought if the President makes the appointment, then that should be the final point of the appointment process.

Therefore, the problem at present with appointing in accordance with the recommendations of the relevant committee of

Parliament. But the relevant committee of Parliament does vet the list of the short-list of the Commissioners with the potential

Commissioners. So that, whatever list they pass, rather than having the Parliamentary committee to vet after the President has

done the appointment, I think that order then needs to be changed. Otherwise, I think the procedure is agreeable.

Prof. Yash Pal Ghai: Yes, I see your point. Prof., I have been troubled by that, now I see, it is a problem, but I am happy to

go along with your suggestion and so by the time the list goes to the President, it would have been approved at both levels.

Zein.

Com. Zein: Thank you Chair. In relation to the vetting procedure, where people use Parliamentary committees or legislative

committees to vet individuals. It is a vetting process where the person is welcome and then asked questions, and normally what

happens is that, the committee makes up a decision. If it is a majority decision that, that person is suitable, then it is taken

forward. But where there is disagreement or the committee feels they cannot support that person, in some countries, then the

name is brought forward to the whole house for voting. In others, it is then deemed to have failed and that is the end of the

procedure. So, I don’t know which one we are proposing in terms of voting procedure.

The first one is normally when the committee is agreeable that is a suitable person, the names goes forward and accepted. But

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in the case where the name is disagreed, like for example in the American context, when the name is disagreed in the committee,

there are two choices. The name can lapse or the name can go forward to the whole house for voting for or against. So I am

saying, I don’t know which form…..

(Interjection) Prof. Yash Pal Ghai: That is a good point. Let us hear Okoth.

Com. Prof. Okoth-Ogendo: Mr. Chairman, I was just going to say that, all we need to do, is to say that, it is subject to the

approval of Parliament. Then Parliament has its own procedures, as has been explained by our colleague here. It will go

before the relevant committee. If they reject, that is the end of the matter. It may go to the whole house for debate. If they

approve, they should report to the whole house and then it is approved by the whole house. Because in the committee, you

have the various elements of the house. So, if they agree, then it seems as if we will….(inaudible). So, we should say that with

the approval of Parliament, then Parliament will take its own procedure.

Prof. Yash Pal Ghai: Okay, well, there seems to be consensus on that. Thank you Prof. Okoth. So, the next one is the

financial independence of the Commission, I take it that the general principle we have approved anyway for Commissions. We

should have a counting officer……

Com. Kangu: Sorry, maybe to save time, we were saying that we have discussed all these things, and there is a consensus,

then members can single out those they think are contentious then we leave it. So that will save time.

Coms.: (inaudible exchange of views by Commissioners)

Com. Kangu: ……. for 3 terms. But what we have here is about, they should serve in the Commission for 2 terms. So those

are two issues.

Coms.: (inaudible exchange of views by Commissioners)

Com. Zein: Com. Kangu has captured what I said, but the point which I think needs to be clarified Prof., when I say these

things are missing, you said some of them are in the current Constitution. My understanding when we come to proposal like

this, is to assume that the proposals which are here, are the ones we deal with. Or am I to assume the proposals which are

here are those to include those which are already in the current Constitution.

Prof. Yash Pal Ghai: Well, maybe Com. Kangu could respond to that, but if I mention your point briefly just before…..

okay, let us have Bishop and then you can crown that.

Com. Bishop Njoroge: Mr. Chairman, the Commissioners, the Electoral Commission will be offering a service to this nation.

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We should not penalize them for being Commissioners, by saying they cannot stand for elections for 3 terms. I would rather

say, for 1 term, because 5 years is a long enough time. Let us not penalize them, remove them from what is rightly theirs, but I

would like to reduce that to 1 term.

Prof. Yash Pal Ghai: Views on that point? Charles, Salome and Zein.

Com. Maranga: Mr. Chairman I will also go the way Bishop has suggested that we have 1 term, because, if one has come

to an end of his term, let him stay out for one term and then the other term which follows, he can run if he wants to run. And it

is not always that all Commissioners are going to run for election. So Mr. Chairman I think one term is adequate.

Then Mr. Chairman I also want to draw your attention that there was one point here which I raised about the criteria for

membership, which should be spelt out. I don’t know whether you have dealt with that, because now you are on the other side

of the paper.

Prof. Yash Pal Ghai: Well, what we have done is that we have approved this in principle, if anybody has an objection they

were supposed to raise that.

Com. Maranga: Yaah, there is an objection that this one should not go as it is.

(Interjection) Prof. Yash Pal Ghai: Which one?

Com. Maranga: Criteria for membership should be spelt out, and should include not having any recent active political party

activity. Mr. Chairman, that is ambiguous as far as I am concerned.

Prof. Yash Pal Ghai: Yes, I wonder whether…

Com. Maranga: I suggest that should be deleted.

Prof. Yash Pal Ghai: It should not be deleted, it is ambiguous. It should be clarified if it is ambiguous. So, could the drafting

team think they can give us some formula for that? Yes, Prof. Okoth.

Com. Prof. Okoth-Ogendo: We are talking about this requirement the persons who have had, have been recently involved

in active party politics should not be eligible and the question is, we haven’t defined this and we haven’t defined the activity and

maybe the principle itself is questionable. We are wondering that….

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(Interjection) Prof. Yash Pal Ghai: Active political participation, if there are no people who have actively participated in

party politics, if you are working mates?

Com. Prof. Okoth-Ogendo: Yes.

Prof. Yash Pal Ghai: Would you be able to draft something we can look at then?

Com. Prof. Okoth-Ogendo: Ooh yes, we will do that.

Prof. Yash Pal Ghai: Okay, look at that carefully then we will come to that. I have lost my list now that…. let us try again.

Salome, Zein, Ratanya. Then let us wind it up because, basically, I thought we had agreed everything and …. Yes.

Com. Muigai: Mr. Chairman, I would like to agree with somebody who has said that the Commissioners in this Electoral

Commission have served Kenyans should not be penalized for it. Having said that, I would also like to appreciate that this is a

special Commission that makes rules for elections, and they should be very objective in these rules. So, although maybe 15

years is too long, but I would also like to think that we are looking at people who will not be making rules for themselves and to

benefit from them. So, maybe, we can have a compromise on 2 terms – 10 years.

Com. Zein: Chair, I think as a principle, we should uphold that anybody who is willing to serve under Constitutional office

must be willing to have some of their rights restricted as a consequence in serving in that Constitutional office. Maybe after

assuming office, within 3 terms.

But having said that, I would like to say this, that why did I say three terms? It is not only that you can benefit from rules,

because if we are saying the Commission will have the right to make rules, or the Commission will have the right to oppose

legislative changes that you can benefit from the actions of yourself, but also two things:-

i. The perception of the people as to your independence in making those proposals, having in mind that there is

always a potential that you can run for office; and

ii. That when you leave office, there are certain structures which you will have established including senior personnel in

that Commission, who will be known to you, who will deal with you differently from the way they deal with others.

So, I believe that 15 years, if a term is five years, is the save clause to deal with.

If there are those who wish to run for office, let them not take the responsibility to serve in such an office. Let them

run for office. Thank you.

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Com. Bishop Njoroge: Because already, he has made his position, he can’t make a position again on that, Mr. Chairman.

Prof. Yash Pal Ghai: I think there is only one person who made a proposal to react to others. So, please……….

Com. Zein: Point of order.

Prof. Yash Pal Ghai: I am going to give it to Issack first and then……

Com. Hassan: Mr. Chairman I think there is a lot of abuse and misuse of the word ‘point of order’, and I think you should

curtail this abuse, because, you people really, in the case of ‘making a point of order’, then that makes it excessive argument

and even re-opening other debates. So I think if somebody wants to ‘make a point of order’, we should first define ‘point of

order’ in the first place before you can go into it. (laughter)

Prof. Yash Pal Ghai: I gave Isaac the floor. Please make your point.

Com. Hassan: I was making that point so that you could disregard or dismiss the other ‘point of order’ raised and allow me

to make my substantive……

(Interjection) Prof. Yash Pal Ghai: Is your point on the same issue?

Com. Hassan: No, I wanted to make an independent……

(Interjection) Prof. Yash Pal Ghai: Can we just resolve this question first about disqualification for 2 or 3 terms?

Coms.: (inaudible talks by Commissioners)

Prof. Yash Pal Ghai: 10 years is fine. Thank you.

Coms.: (inaudible talks by Commissioners)

Prof. Yash Pal Ghai: Please, can we all be quiet. I am not going to give the floor to you Zein because you will have chance

before we wind up this matter. So, Charles, please take no more than 2 minutes. Charles, we know your views, I don’t think

you need to express them.

Com. Maranga: Okay, Chair, you know my views ….

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Prof. Yash Pal Ghai: Yaah, you don’t want any disqualification. Okay, Ibrahim you are going on the tenure of ten years …..

Com. Ratanya: Mr. Chairman, I have not given my proposal, but before I do that, the point said by Hassan about these ‘

points of order’, before you allow that one Mr. Chairman, that is to your discretion, and you see what actually should be a ‘

point of order’ or just a point, to mean ‘a point of order’. So, why don’t you go round and get all those who have something

new to say, and then when finish, you come to these ‘points of order’, ‘point of information’, whatever point.

Now, Mr. Chairman, my proposal this question of terms, for me, I would propose that we give 1 term of six years. We should

not tie or link the term of Parliament to the term of the Electoral Commission. If the term of Parliament is five years, let us head

that end….

Com. Yash Pal Ghai: No, that is a different measure. We are discussing the period of this clarification to stand for public

office of the Commission.

Com. Ratanya: Mr. Chairman, I think it was 1 term. We were considering whether it is 10 years, 15 years.

(Interjection) Com. Yash Pal Ghai: Yaah, we are discussing for how long that this clarification should apply. We are on a

different point.

Com. Ratanya: So, my contribution was on term, but 6 years by rotation.

(Interjection) Com. Yash Pal Ghai: We have agreed that point. I don’t want to operate I am sorry, you should have raised

it earlier. The question we are discussing is only one question, which is this clarification will be for 10 years or 15 years, and

Zein said that he would accept 10 years.

Com. Prof. Okoth Ogendo: I am not right Sir that you summarize correctly when you say it is 10 or 15, because the issue is

still open, and I was to suggest, again, we must have a principle that runs throughout the Constitution consistently. Yesterday

we spoke about not being punitive. If we appoint Hassan to be a member of the Electoral Commission at 35 years, we are

then saying, that for 10 years thereafter, he cannot stand for public office, by which time, he will probably, the most productive

part of public life, in my judgement, if we are not to be punitive, we must keep going back to, what are we trying to protect.

We are trying to protect the Kenyan public from individuals who use their official capacities to skill the democratic process.

Five years in my view, since the man retired or the woman retired from an office of a public nature, is more than sufficient. To

34

go to 10, to go to 15 years, you are now saying, choose whether you want to be a Commissioner or you will ever stand for

public office. The majority of the people will say, since I want to keep my options open, I don’t want to tie 10 years of my life.

Prof. Yash Pal Ghai: Zein, I have to rule. Please make your comment very subsequently.

Com. Zein: Chair, two principles. The first principle is in relation to what the Bishop raised, and I think it is something which

we need to isolate. I disagree with him, with a lot of respect, that if somebody makes a comment in the general terms of what

is missing in a section, then they have to give up their right to expound on that position. I totally disagree with that, and I

believe that if somebody talks in general terms about an issue, they still have the right to speak as to the substance of that issue.

That is the first principle.

The second principle, Chair, for me is that, I will accept two terms. I will be reluctant to accept one term, but if the majority

feel it is one term, I will go by it.

Prof. Yash Pal Ghai: I feel the majority feel five, but, John do you have ……… I think we can move on. I am glad to have

a discussion, but I believe it is my discretion as Chair who I allow and I will keep those points you have made in mind when I

may to session, so, if you can leave it to me. Thank you very much.

Com. Kangu: So, Mr. Chairman, the other point Zein had raised and before I go to it, I want to agree with him that the

mechanisms of securing consensus is through persuasion, and so Zein is right that someone makes a point subject to the

Chairman’s discretion, should have an opportunity to persuade the others to see his point of view.

But the other point he has raised was about what is in the current Constitution and what should go into the report. And I think

that raises the question of whether we are going to amend the current Constitution or we are going to write a new Constitution.

We need to be clear on that, because the mistake we are going to make is to say certain things are in the current Constitution,

and yet the draft we are going to come up with, ought to be supported by the report that we prepare. And my position will be

that, if the approach Prof. Okoth-Ogendo who I think is good at this jurisprudence, is that, if we are going to make a

completely new Constitution, it should be relevant that certain principles are in the current Constitution. We must reflect them

in the report, so that our report covers everything and can be able to support what goes into the draft that we are going to

make.

Prof. Yash Pal Ghai: Okay, thank you very much. I think we have noted the point Zein made, and we make sure they are

reflected in our report and instructions for drafting. So, I don’t think we quite agreed on the last bullet point, about the

registration of parties, and I would suggest we take it when we discuss a paper on political parties, because I believe there is

some suggestion on that.

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I am also going to suggest we leave for the time being, ensuring smooth and orderly succession till we have looked at the

systems of government. Because if we do go to an element of Parliament system, it may be two points of succession. One for

the Presidency and one for the Government – Prime Minister. So, let us come to that when we look at the systems of

Government. That takes us to point 13, which begins actually on page 12, and is this gladly acceptable? Yes, Isaack.

Com. Hassan: Mr. Chairman, it appears to me that, the first recommendation is one that….. (end of side A)

I think you know this very well, these are the rules, about the service of petitions. I don’t know why we need to do service

petitions in the Constitution, unless…..

Prof. Yash Pal Ghai: I suggest, I think your point is fair, but I think since this has been a controversial issue and we have

received submissions, we can note it in our report and make a recommendation for legislational regulations, but I think we need

to raise it in the report.

Com. Hassan: Also Mr. Chairman, the issue of …. I know there have been a lot submissions on this from Kenyans or

organizations. I gave the issue of the timeframes on service of petitions, and when again it should be heard, because,

sometimes, these matters have been referred to court, and the MP is still in Parliament, yet a petition is still going on, and you

find that he may have finished three years of his five-term before he is reached. I mean, this renders the whole process of

settlement null and void at the initial. So I think we should also fix that minute.

Prof. Yash Pal Ghai: Yes, that is a good suggestion, we will note in the report. Githu, Raiji, Zein.

Com. Githu: Mr. Chairman, I am afraid I don’t agree with Hassan on this point. One of the worst areas of Judicial

misconduct in the history of this country for a long time was in election petitions. And John you have done election petitions, I

have done election petitions, it is an area of tremendous mischief, yes, and abused at several levels.

Another level, it is in the unilateral amendment of election regulations by the office of the Attorney General without reference or

notice to any person. In 1997, the rules were amended as to service without notice to anybody to require the now

controversial personal service. So, with the absurd situation today, that all a persons needs to do who is elected to Parliament,

is to disappear for 30 days. Take a holiday, and where he cannot be found. Now, I have been against writing details in the

Constitution to deal with historical mischief.

On this question, however, Mr. Chairman, I feel:-

a) The Election Code should be well provided for in the Constitution. Because in my view Sir, it may very well be at

36

some point, that we would like to link elections being such an important subject with the Supreme Court, if we

decide on a Supreme Court. That is one.

b) We must secure fundamentally in the Constitution, the manner in which, in not very detailed Sir, election results must

be announced by a certain time, a petition may be filed by, I think it will be necessary to set out the number of

people who can question the election within a wherever, and the results are to be published in the gazette, and to be

deemed to be notice, so that we may deal with that matter. But I can assure you Sir, the number of people at

Bomas of Kenya who will be passionate about Judicial misconduct in this regard are very many.

Prof. Yash Pal Ghai: Raiji.

Com. Raiji: Thank you Chair. Two points:-

i. I entirely agree with Com. Githu Muigai, but I would rather add, and this is maybe, is one of the issues we may have

to …. not only on petitions but I suspect in other Bills, where a substantive right is given by the Constitution, but the

manner of enforcing or enjoying that right is left to legislation which gives varying according to the political climate at

the time. This is one such incident.

And I think well as you may not want to deal with details, because the whole fundamental basis of citizens’ rights to

vote and citizens’ right to offer himself for elections, is governed by whether or not the fraudulent election can be

permitted to take place by manipulation of the rules. And I would go further and say that we must write it in the

Constitution, that the Code of the Tribunal as I will be pointing out shortly, shall deal with the matter without regard

to technicalities or procedures. Because these are the doors that are abused persistently to nullify the Bill of Rights,

to prevent people from challenging elections, by all manner of misconduct. And it is no reason, at least I have seen

no evidence so far, that this practise, given a small lawful will not continue in the future.

ii. Secondly, Prof. Okoth-Ogendo said, everything is on the table, we are writing or rewriting a new Constitution. I

think it is also time for us to see whether or not, the courts are the proper medium for resolving these disputes.

Would you for example appoint a dock tribunals to deal with that one, within say, the given 3 months or 30 months

and settle the criteria? Something like that? I have not fixed views on that, but I think, it is not an unusual

requirement, because the problem is that the codes and the procedures that as presently constituted are likely to be

constituted even after amendment, such that, knowing the speed at which calls to work and their key system that

they follow, we will probably not be able to get rid of the concern that Com. Hassan has raised.

Prof. Yash Pal Ghai: It is Zein, Mutakha, Charles.

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Com. Zein: Thank you Chair. This is I think the fifth time since we started deliberations on reports by Thematic Groups,

where the question of limitation of Parliament law-making, establishing mechanisms that will protect people not only for

Constitutional entrenched provision or Constitutional provision, but also on simple legislation has come up again. And I think

we will need to return to this matter when we are dealing with the powers of Parliament to Laws, vis-à-vis some of the fears

which are being raised. Once we do that, then we will be able to know what are the level of protection for each provision that

we are recommending in the Constitution. That is the first one.

The second point, Chair, I believe that the paragraph falling under the 3rd Bulletin, should not be left, I don’t know, is that a

recommendation, is that an observation, but I suggest that it should be a bulletin to formally saying that we should explore the

idea of establishing mechanisms without having to recalls to Judicial review.

Thirdly Chair, that I agree with Com. Riunga Raiji and Com. Hassan, the first point which he said, people made a lot of

submissions in terms of how expeditious cases or petitions needs to be heard, but agree with Com. Riunga Raiji that we might

need to be creative in establishing transitional mechanisms or temporary mechanisms after the elections, to deal with petitions

within a prescribed period of time.

And then, lastly Chair, on the 2nd Bulletin which says the court could consist of 2 rather than 3 Judges, I don’t know what are

the arguments there, but my feeling is that, with a majoritarian panel of 3, you allow for both clear direction by court, as well as

minority decent in the findings of the panel without going into the problem of when you have a dual or 2 members, then whose

judgement will take precedence. Thank you Chair.

Prof. Yash Pal Ghai: John and Charles.

Com. Kangu: Mr. Chairman, I would like to follow up what Com. Zein has said, that the picture I am getting is that we might

need a substantive section when dealing with Parliament that addresses the question of subsidiary legislation or delegated

legislation. Because what has happened in our country has been that the rules committee in the process of making rules or

purpoting to make rules, they actually amend the substantive legislation or the Constitution itself. And in this election’s case, that

is what has happened, when they say that they limit the period within which service has to be secured, they are changing a

Constitutional provision that says, that a party shall not be condemned unheard which forms the basis of service. That you

cannot be heard unless you have served the other party and brought it to court or shown that you have tried without success,

because the circumstances in which you can be heard without service, are in fact for grant of limited orders.

But what has happened in the election area is that, you now can defeat the entire proceedings, by merely saying, I was not

served within the limited time. So, we will need a section that will clearly…. it may be saying what ought not to be said, but I

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think, given our experience, we might have in the Constitution to clearly state that subsidiary legislation shall not in any way

amend the current statute or the Constitution. It must be within the meaning of the current statute.

And then, two, which we haven’t put here is the issue I have always talked about of the election court, having jurisdiction to

report anybody guilty of an election offence. I will want that clarified in the process of making the Constitution, because that

again has been abused, because, when a court is seating as a court of civil jurisdiction, it cannot again purport to exercise

criminal jurisdiction. And given our past history, we might need to clarify that in the Constitution or we should frame the

Constitutional provisions as to avoid that window that has allowed that to happen. Thank you.

Com. Maranga: Thank you Mr. Chairman, the first point I want to draw the attention of the members is that, this proposal is

based on the basis that maybe we will continue with the current system of government. Mr. Chairman, if we are going to

devolve power to the people, you might find that we might increase where the petitions are going to be also. My view that the

petitions should be at the district level rather than provincial, and you might also find that the mechanisms we need to develop to

address those issues because you might be dealing with more people maybe than expected.

So, I think Mr. Chairman, the way this section is drawn up, I don’t think I am happy with it. It needs to be re-drawn, so that

again we can discuss it, because Mr. Chairman, we can approve the principle that this petitions are very important because

sometimes there is a major delay. For example, Mr. Chairman, it will be nice if all petitions are dealt with before members are

sworn in, so that, when somebody becomes a Member of Parliament, there is no more petition or anything. So, I think we

need to give a period, and we need to give special courts, whether they are going to be …. (inaudible) courts or whatever, like

my brother Githu suggested, that we might have those courts which are dealing with petitions there and then, and also maybe

reduce the period when people can complain. I think this section, as it is now, we might not be able to make very concrete

decisions.

Prof. Yash Pal Ghai: Yes, Nancy.

Com. Baraza: I was concurring with Charles.

Prof. Yash Pal Ghai: John?

Com. Kangu: Yes. Mr. Chairman, just following on what Com. Maranga has said, we might need to link this to the provision

we have already discussed about holding elections before the lapse of the incumbent Parliament. And probably, we might need

to expand that period so that we leave a period within which disputes are settled before the seating Parliament lapses and the

new one is sworn in.

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Prof. Yash Pal Ghai: Yes, Githu.

Com. Githu: Yes, Mr. Chairman, again for the draftsman to consider. I know that the Court of Appeal in Tanzania has

struck down legislation requiring a petitioner in an election petition to deposit a certain amount of money in court. The Court of

Appeal in Tanzania said, the intention of that kind of requirement is to reduce the number of people who can complain, it is

unconstitutional.

I think we must entrench, somehow, the right of a citizen or voter to file an election petition and put it beyond the reach of

Parliament to water down that right by making regulations on service or deposit of money or any other requirement that has the

effect of taking away the meaningful right of a citizen to challenge an election. Sorry to repeat that, but I think it is important.

Prof. Yash Pal Ghai: Ibrahim.

Com. Lethome: Mr. Chairman, maybe as a way forward, I would suggest that for the purposes of the Constitution, as a

Constitutional provision, we just say that, election review shall be handled in the manner provided for under the relevant party.

Then, the result….

Coms.: (inaudible interjections)

Com. Lethome: Just hold on, can you protect me Chair…….I wanted to say now, provided that, then we address that fear

that is being expressed here. The main issue here is that, they delay, they take long. So we give that provision. Then the

details, and Githu said the … (inaudible) is in the detail, …. (inaudible) to the legislation.

Com. Githu: I think with tremendous respect, Ibrahim Lethome has missed the point entirely. The mischief in this country is

that, it is in the amendment of the statute and the regulations that the election process is subverted. And I was talking about, in

this country, there was not a single successful election petition after the 1997 elections. Over 30 election petitions were

dismissed on the basis that there was no service. Service is not an issue of the Constitution, it is not an issue of the principle Act,

(hang on Sir), I am saying it is not an issue raised by the Constitution, it is not one that is raised by the principal Act, it is raised

by regulations made by the rules committee, capriciously on the 27th December, with the election on the….. we want to put all

these beyond the mischief, either of the law officers or the crown or of the Judiciary or of any other person.

Prof. Yash Pal Ghai: Or the Republic my …

Com. Githu: Or the Republic for that matter. So I am happy to go with your provisal that elections petitions shall be heard

expeditiously, and then add what Com. Raiji said, without undue regard to technicality and in any effect, no legislation shall

40

interfere with the right of the vote to question an election.

Now, I don’t propose that, that is the way it should read, the draftsman will know what to do. But we must put it beyond the

reach of mischievous bureaucrats or mandarins in the sectional office or in the Judiciary.

Prof. Yash Pal Ghai: I just want to check with Ibrahim if you are happy with this formulation.

Com. Hassan: Mr. Chairman I think Dr. Githu must first get permission from the Chair before he can interrupt, because I had

the flow, but because the microphone is very close to him…….

(Interjection) Com. Githu: I apologise.

Prof. Yash Pal Ghai: I am glad you said that. Githu you have to exercise…… I know you are posing with ideas but I

think…..

(Interjection) Com. Githu: I apologise.

Com. Hassan: Mr. Chairman, I think the microphone should be taken away from his…..(laughter). It is very close to him.

(Interjection) Prof. Yash Pal Ghai: Okay, let us listen to Isaack please.

Com. Hassan: I was going to follow up on the right of the complainant – the people with complaints. I think, what I agree

with what Dr. Githu has said, we should not try and limit the individual right to complain and also petitions. But also I think

there is a need to seclude that right. You are very much aware of the existence of the Vagarious Litigation Act, which in a way

also tries to limit the vagarious litigants from going to court every on very flimsy reasons and try and pop down the Judiciary.

So, I think even in the election petition, after elections, there will be so many people who will be disappointed, including from

the losers of the election itself, the supporters and those who are funding the candidate. There will be so many people who are

going to be unhappy. So we should be able to give that right to complain, but I think it must be limited, that is why I don’t think

that the issue of, for example, people being paid in court, in the requirement of service and all those vagarious are necessary,

and they are not necessarily going to undermine the rights. I think we should start it in such a way that, we also guard against

giving vagarious litigants who are going to bring every kinds of people’s justifications and complaints in court.

Having said that Mr. Chairman, I think the election court, instead of setting up a new institution, while it is very attractive, the

arguments by Com. Zein and my colleague Com. Raiji about giving it to another institution altogether, I think the common norm

in other countries and also in this country has been that, usually it is done by the Judiciary.

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a) That the courts are entrusted to do this work, and although the High Court has been occasionally considered an election

court, we may want to maybe set up either a separate election court which is going to deal with elections, or

b) We can even ask the Supreme Court, because, usually the Supreme Court deals with great fear a matter, it would seat

as one, whether it is 5 Judges or 7 Judges or 9, they will see issues as one and hear that matter and decide that it that

way. But during election petitions, they may want to give it the jurisdiction to the Supreme Court, but they can seat as 1

Judge presiding over one court in every province for example, in the eight provinces, and hear the appeals, within three

months they are through with the elections and we are back to square one. Thank you very much.

Prof. Yash Pal Ghai: Nancy?

Com. Baraza: Mr. Chairman, being the ‘Guru’ of fundamental rights in this Commission, I think I am taking the liberty to

disagree with Com. Hassan. As we want to give citizens’ rights, let us give them without putting too many limitations. I think

that has dogged our current Bill of Rights, and we want to move away from it as much as possible. So, I would advise that we

limit our limitations as much as possible so that we don’t delegate from the very rights that we are giving to the citizens.

Prof. Yash Pal Ghai: Well, I think that broadly we are in agreement with the suggestions Githu and others have developed.

We leave it to the draftspersons to see that. I see courts have a kind of inherent restriction to prevent flipless, and we can rely

on them. Is that okay Sir? Thank you.

The next point is the limitation of constituencies. I think we have discussed at least the principle that the Electoral Commission

will be responsible for it. We have had discussions on several occasions about the size of constituencies, and I think we should

deal with it now. This suggests that they should norm, and there should be deviation of 10%. We might need……

Com. Kangu: Mr. Chairman, if I make a few comments, I would like members to look at this particular part in appreciation of

the fact that, I personally would want it even more refined. It is not well outlined as it is here. So, I will take their comments on

that basis and they should be aware of that.

Prof. Yash Pal Ghai: Hence, I am going to say myself that 10% deviation, I mean will always be suitable in any greater

degree of deviation. But greater degree of deviation has to be justified, because I believe we have two kinds of situations. We

have some constituencies with small population, because the population is very dispersed and there are very good reasons for

that, and I believe there are some which do not have that problem and yet tends to be containing a small electorate, so I think

the two different situations that we have at the moment. Yes, Isaack.

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Com. Hassan: Mr. Chairman, personally I even went back to the main document of this report to try and understand what

you meant by the 10% deviation from the norm, and how much that will relate on the ground. But maybe the convenor will

want to explain that to us. But I thought, Mr. Chairman, that the current legislation as provided for in the Constitution of Kenya

which we have today is very much adequate as far as this particular ……………. (inaudible) is concerned and maybe, we

should consider retaining that, subject to of course the fact that we have now introduced the MMP to cater for the other

variations, I think we should retain the current Constitution provisions which is also a retention of the independent Constitution,

actually there is no much difference from what was agreed for at independence, and I think there was lots of reasons why that

was done, there has been a lot of negotiations and debate on that, I for myself will not be agreeable while I understand the

justifications to the fact that people have caused all others, all constituencies should have the same number of people.

While that is true, but again, this country is different into different regions, and then, even like in Nairobi for example, Nairobi is

the capital city of Kenya. The fact that it has more people than other parts of the country, we are not just because there are

very many people here alone, but because it is the capital city of the country, all the government offices are here, all the

industrial offices are here, all the courts are here, people who come to this place are pulled from all other parts of the country.

Even people from North-Eastern Province, from Western, from Central are just coming to Nairobi. So, because Nairobi has

got 3 million people, it doesn’t mean that, that is where the people come from, and I think we need to be very clear as to the

population numbers.

And, when it comes to registering voters. Registering voters, Mr. Chairman, we have had very many complaints from pastoralist

communities. That:-

i. During census, they are not even counted all of them. So, that is just about the problem which is encountered. If

we only go to the watering point. I myself have been involved in the population census of 1998, and I know what

we did in the province. We went to water points, to just wait for the people to come and register them. We didn’t

bother to go to the authorities, I mean, there was no communication, there was no time for it. So, number one, if

the census itself, the number for example in North-Eastern Province I think, the population now is 1 million. They

state almost a million, that is not the government figure today, but they are more than that, because no proper

counting was done on the people. That is the first one.

ii. The fact that there are 280,000 registered voters, as compared to 1 million population, itself is very suspect,

because how can you have a large number of population and then you have a quarter of them registered as voters

across the province. That is the second point.

iii. The other is the issuance of identity cards. Pastoralists have again complained that you know very well that the

complaints we have received in the community, where they are allegedly, there are only antelopes and wildlife, and

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not very many people. That they have not been given opportunities to acquire identity cards because of

discrimination and marginalization. They don’t get the ID cards, and you can’t be registered as a voter without an

identity card. So, again in the issuance of ID cards, we have a bigger problem. In Wajir for example, we were told

by the area Member of Parliament, there were 3,000 youths who didn’t have ID cards, and who are still in school.

And in fact, I think the reports are paid up advertisements in the paper. It is just three months ago, where they

listed their names, same as 3 pages of the nation was bought by those people to show that, this is the number who

are missing identity cards, and that is only those who could afford to come to town or list their names and send their

petitions.

The fact that we try and justify the existence of processes in these provinces, does it mean that there are also other

un…. (inaudible) pictures which are being covered up? If proper census was done, if proper registration of ID

cards was done, I think the either ……………… (inaudible) could as well be equal ……. (inaudible) as other

parts of the country. But my conclusion is that we should as much as possible retain the current status.

Prof. Yash Pal Ghai: There are a number of issues raised. Some we covered yesterday, but we agreed on continuation

principle that administrative procedures will not deny Kenyans a right to vote. I think it will be very useful if Isaack and others

could do a very short paper on how we need to modify the electoral system to deal with pastoral communities. If this could be

done in the next day or two, I am sure we will endorse that and see how we can give effect to that.

But now coming back to this general point about the size of constituencies, I have three names, and then, I am going to take

more, Zein, Nunow and Okoth in that order,

Com. Zein: Thank you Chair. This I think raises a fundamental question of principle which will affect other aspects of the

Constitution. Reference is made to what the people told us. And I would suggest that, this is one of the issues which in my

opinion, forms a contentious issue. It is related to devolution of power principle, it is also related to two principles, one, of

voters choice and the other one, of legitimation of government.

But more importantly, there are some of the issues which have been raised by Com. Hassan, and I will go back to a principle

which I said, if it is not dealt with in open forum like this, I would wish to raise it as a special issue.

Firstly in relation to census and how reliable and valid are figures prepared by the National Census. We know in this country

census have been contentious issues, they have political connotation, and I would like to suggest that they must be a

Constitutional provision to protect the procedure of arriving at national figures of both census as well as economic factors and

indices. But that is something we can come back to.

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On the other point is this, that this matter is so important that people raise issues and says, it even has led to people rejecting

government programmes, and they quoted a Minister who made instructions to ‘my people’, he said, ‘my people, ignore this

business of family planning’. If numbers of people are going to matter as to how the Government is going to be constituted, run

and national resources shared, then ignore family planning. Because that is the question of number of issue of people who

matter.

Thirdly Chair, that it brings to the foul the arguments for or against a particular ideological position. There are those who have

come to us and said, in reference to what Prof. Ogendo said yesterday, that when you are dealing with the issue of how big a

population should compose a constituency, you are counting people not elephants. And yet, it can be demonstrated that the

majority of the people who have expansive land and fragile economy echo-system, for example, the North-Eastern region, parts

of Rift Valley, Eastern Province, Coast Province, that, if you are required to represent the interests of the people there, you are

also required to represent the interests of those who don’t have voices, which includes the so called elephants, which includes

the echo-system. That is the new position which people are saying that the echo-system, if this echo-system has a balance over

the whole country, then the person who represents such a constituency has an even added responsibility to the nation. And that

is not taken care of by working on logistics, and saying we can access logistics. It doesn’t solve the problem.

Again, in terms of delimitation of constituencies, my feeling, I know Chair you said maybe it has been sorted out, my feeling is

that, you don’t leave this to the Electoral Commission, because you said we will come back to it. So a good reason which is,

the Electoral Commission’s core business is to apply and run elections and make sure that they are free and fair and that

process does not require a lot of value judgement. But the issue of delimitating constituencies, in some cases, require value

judgement. And this value judgement have winners and losers in the history of this country. You have competing interests,

even when you are familiar with the size, competing interests in a constituency and people have been making noise to use and

say, ooh this constituency was taken this way or that way, and people form long-lasting impressions and attitudes towards the

Electoral Commission. And we don’t want to allow that to happen. That is why it is I think a good idea to support Prof.

Ogendo and say, maybe you want to leave that to another aspect.

And lastly Chair, my convenor says something. Can….

Com. Prof. Okoth Ogendo: I was commenting.

Com. Zein: Ooh, okay. But, the last thing Sir, I say that this matter will not be resolved completely without dealing with the

aspects of devolution, be they vertical, horizontal, be they of nature of an institution by cameral or uni-cameral, we will have still

to come back to this matter, and if I may make reference to the American dispute, the Convention was almost torn apart on this

very question, until a middle ground was suggested and adopted which took care of the interests and the peers of combat.

Thank you Chair.

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Prof. Yash Pal Ghai: Nunow next

Com. Nunow: Thank you Chair. I think I would like to start by saying that, I entirely disagree with the recommendation

brought by Com. Kangu with all due respect. Com. Ahmed mentioned that we have a population big as the basis for the

limitation of constituencies. But he forgot to mention that we also had that population should not by any circumstance, be the

basis for the same. And that, the other factor should take higher priority, even if population becomes one of them. It should not

be first in the list of determinants for that process.

Mr. Chairman, I think we need to understand the basis for population concentration. One of the issues that a concentrative

population in various points is the availability of resources, infrastructure and social amenities. These were highly skilled and if

you deliberately saw by independent sensitive government. And therefore, almost 40 years of independence, has created rules

of population who are attracted to specific amenities created using national resources, which is a contribution of all Kenyans

through the circulation process which in itself pays a discriminatory approach. And now taking that to be the basis for giving

constituencies, in my opinion, it is worth and already misconceived and unfair process, which is a process of unfair governance.

Having said that Mr. Chairman, the committee mentioned that MPP could be a way of … (inaudible), I would entirely disagree

with that again, because, MPP entirely relies on political parties to prepare a list. In this country, we have a history of winning

parties or parties with potentials to win totally disregard areas that they feel they have no support completely after and including

Constitutionally enshrined rights of development.

And now to come to say, they will nominate people from such areas, I still dismiss the point. So, we should rely on MPP.

What it does should be an additional bonus if ever they wake up to the reality of the situation.

Registration of voters and processes of census have well been covered by Com. Ahmed and Com. Zein and I would not want

to repeat. But I will only add that census has been conducted and numbered completely to reflect something political direction,

and to convey specific political messages. So, in my opinion, the most shamble and reliable census in history of this country

since independence was conducted in 1989. Most reliable, this was also six years later, in 1995. So that it could well be

doctored and be released in time for election to reflect …. (inaudible) numbers. Now, that is how far census can go. So it is

not an option or a reliable process that we can count on.

The fragility of eco-system whose…. (inaudible) some of them being unique completely endangered, some protected and ……

(inaudible) as for in the dry land of this country, and the dry land are the most sparsely populated, well, a one person for

5sqkms. But that person is entitled to representation and national democracy that say, the few people don’t deserve to be

represented. Whether you are 1 million persons or 1 person, you are entitled to representation. So, since democracy is the

46

basis on which we are building this Constitution, we must ensure that every individual in this country is entitled to representation

not withstanding the national assess being rampant in this particular areas of highly …… (inaudible) eco-system.

So, my recommendation would be, Chair, that we respect the principle of equity in terms of political representation. Meaning,

that every Kenyan is entitled to representation irrespective whether he is alone or there are a million people around. We must

recognize that when we are tempted to correct the past imbalances by distributing the resources equitably although not equally.

Not equally because, of course those areas that had already agreed to the benefits need to be slowed down for others to catch

up with them.

But representation is a core issue that cannot be now added to those who have and those who don’t have should remain as they

are or keep crawling. So my recommendation is, we must make distinction between urban and rural areas. We must get

definition of what constitutes an urban area and what constitutes a rural area, and we should have an differential approach to

delimiting constituencies in such areas because the problem and the circumstances indeed defer. We will be missing the point if

we try to create a uniform basis for delimiting constituencies. Thank you Chair.

Prof. Yash Pal Ghai: Thank you. Okoth?

Com. Prof. Okoth-Ogendo: Mr. Chairman I am not trying to take issue with the quality population censuses that we have

conducted in this country, if at all the reason that I have been a member of a census committee once, and for 9 years chaired the

National Population Council of this Republic. But the point I want to make is that, clearly, what we heard and what makes

national sense is that the principle for the delimitation of constituency boundaries are population and geography, not population

alone, those who argue for population alone have this impression that they will get more seats than others, and therefore they

were using some very prerogative language when it came to the question of geography. But I am convinced in my own mind,

that population under geography must be the principle. That is point one.

Point two, I think we must lift that principle from the Electoral Elections Act to the Constitution, so it becomes a Constitution

principle. At the moment, it is a discussion exercise by the Electoral Commission, but I think we must lift that and put it in the

Constitution so that it becomes a Constitution principle. And I would like to draw the attention of this taskforce to the

submission that was made by Hon. Godana in his constituency and he is the only person I heard who made a very specific

submission on this point. He had a written document, and he had a comparative presentation on what is happening in Canada

and in Australia and the parts of the Soveik Union, where this principle has been used.

The third point Mr. Chairman, I want to say is that, if you look at the statistics, and I said this yesterday but let me say it again.

The average Member of Parliament in Marsabit District, covers 20,000 square miles, even though the population per square

mile in Marsabit District is 40,000. The smallest area covered by an average MP is Mombasa, which is 58 square miles, even

though the population is 160. Nairobi is 87 square miles, even though the average population is 260. We cannot be blind to

47

the fact that where geography is such a distinguisher of representation. That we have to ignore it and then end up, for example,

with the whole of Marsabit District being one constituency. Because what you will have is in fact the whole of Marsabit District

in terms of the statistics that I have in front of me here, would be smaller than Embakasi Constituency, and then we are going to

say that the whole of that District should only be one constituency. I don’t think. I think it flies in the sense of reason, it is

discriminatory and you cannot expect Members of Parliament to cover it, particularly, since that infrastructure itself is so bad.

Maybe 100 years from now when the population distribution of this country is more sensible, we can move towards population

as a prime factor, but I don’t think this is something that we can do at this stage.

And finally, Mr. Chairman, the public didn’t give us guidance on how to proceed. They talked about what the minimum, but

first of all they divided the country in terms of population, and said, in certain areas, no constituency should exceed a certain

number. In the semi-arid and arid areas, they divided the country in terms of the maximum acreage that a Member of

Parliament ought to cover. I would like this particular committee to go into that data and see what the public is saying. They

are saying that a constituency should not have less that so many people and as far as geographical term should not exceed so

much, and I think in North-Eastern, in terms of size, they were talking about a maximum of 10,000 square miles which is still

much much larger than the average constituency in Mombasa. But all these suggestions are in there.

So, in summary, Mr. Chairman, I would want to see geography and demography into the Constitution, not at the discretion of

the Electoral Commission. And then the Elections Act can play around with the minimum and maximum in terms of geography

and population. Thank you.

Prof. Yash Pal Ghai: I believe the principles are in the Constitution but they need to be re-formulated. They are in the

Constitution. Maybe they need to be re-formulated and we will…. conclusion of our discussions.

Com. Yano: Thank you Chair. I entirely agree with those ones who have spoken before hand, that population alone should

not be the guiding factor towards the delimitation of the constituencies. I look and remember what we collected from especially

North Eastern Province, and parts of North-Rift. Actually the whole of North-Rift. These are areas largely covered by the

pastoral communities of this country, whereby as Com. Hassan had already said, that the issue of population counting and

census has not been adequately done.

These are very large regions, and I always like looking back to Turkana District. I remember I did extensive civic education in

Turkana District. Turkana District is 70,000 square kilometers. It is like three provinces put together – Nyanza Province,

Western Province and Central Province, and in the whole of the District, there are only 3 constituencies.

I look at Turkana North, Turkana North is about 37,000 square kilometres and almost like 2 provinces put together with only

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one Member of Parliament. The complaints that these people raised majorly, were that historically, there has been lots of

unfairness in terms of governance, and that is why they were complaining about infrastructure, we could even see it for

ourselves, no proper infrastructure, basic necessities were absent and all of it was blamed on lack of governance or poor

governance.

I also look at our mandate. Our main mandate or the objects and purpose of the review, is to ensure that people participate in

governance. And I think, it must reach a point that we have to make very specific recommendations for some of these regions

and we have to be extremely bold, while making these specific recommendations. But it is not only on population alone, we

have to look at geography. Thank you Chair.

Prof. Yash Pal Ghai: Raiji.

Com. Raiji: Thank you Chair. This is perhaps one of the issues where we received a lot of recommendations. I think Chair,

part of the reasons the public were mistaken, because the thinking was that, is it based on population or geography alone?

Whereas there is broad consensus here, that it is actually based on several criteria – geography, population, means of

communication, that one is Section 42 of the present Constitution.

Now, I think the problem, there are two issues to be isolated. There is a problem of the criteria and believe broadly the criteria

is agreed – population, geography, means of communication, population trends and so forth. But, the other issue that is tied to

that, is the application of that criteria, and if I heard Kenyans right, is that, the criteria was being applied unfairly, capriciously

and on purely political ground, coming sometimes to ridiculous, that in reason of boundaries, within even a given district, in

order to capture certain people within a given constituency for temporary political advantage.

Whereas the criteria may not be seriously disputed, there is need to check whether or not this criteria has been properly

applied. I think if I recapture the spirit of the discussions we had yesterday, I think we did agree that, because this is an issue

that was debated with a lot of passion, and since we agreed that, and I think it will be misleading to ourselves to assume that

Kenyans are satisfied with the present constituencies. Some feel that particularly in the pastoral areas, they have too few

constituencies, in fact, and the others from the more popular regions feel that they have also very few constituencies, and it is an

issue that has to be addressed, but I thought we had a broad consensus yesterday that, yes, for the time being, for purposes of

the next elections, we maintain the present constituencies, and then we recommend that a sort of constituency review based on

this criteria, and if we actually agree that, then I will think probably, it may not be possible for us, I think even that there is a lot

of strong feelings among Commissioners themselves on this issue, to actually now make a determination on boundaries,

because, probably we need a Boundary Commission, and there will be needed a lot of time and expertees in order to complete

that mandate.

49

And time to time, there was also the issue which, I may be corrected Chair, about boundaries, I think yesterday or when we

were presenting the other day, I thought some people were not comfortable with the Electoral Commission conducting the

boundary review or something, I don’t know what we agreed.

Prof. Yash Pal Ghai: Well, I thought we had agreed that it will remain with the Electoral Commission, but that issue can be

re-opened, there is no reason why we shouldn’t re-open that now if that is the general wish. But let us now go on to Mutakha,

then Charles, Nancy, Kabira, Githu, on my left Salome.

Com. Kangu: Mr. Chairman, I want to start by again saying that, as I said earlier, I personally was still of the view of refining

this particular area. But I want to talk about it and try to capture what Com. Zein has said. Once again, in terms of the

ideology we have set for ourselves, we said that the people are central to the ideology we are going to pursue, but that doesn’t

mean that we be simplistic and say, we are approving population as the basis. The centrality of the people we referred to, we

said, is that Government was introduced to serve the welfare of the people. The whole people, regardless of their large

numbers, or their small numbers.

So, when we are designing the factors, we will be looking at factors that will best serve the people but not simply say, these are

many, let them have more constituencies, and these are a few, let them have few constituencies, regardless of the circumstances

in which they live. What should drive us is factors that can give us effective service of the people wherever they are. And we

will be saying that if we are supposed to serve the people and we said in our ideology, that ensuring the welfare of the people is

facilitated by proper management and distribution of resources, we will be saying, that even these places in which there are a

few people, as Com. Zein as said, there maybe need to manage the resources that are there. So, we cannot just look at the

number of people there and say they are a few, they don’t need many MPs. We must also look at the resources and their

fragility as Com. Zein has said, and say that there is need to manage those resources, because our business is to serve the

welfare of the people.

Now, if we accept that ideology, we will be saying, Prof. Okoth-Ogendo is right, in saying that we look at population, we look

at geography, but that geography must be understood, not in a narrow sense of just the size but also in the wider sense of the

terrain and the other climatic difficulties that are in some of these places. I know for a fact that a number of people in places

were suggesting, we can solve their problems by giving facilities to their MPs to reach them. And I remember in one place, I

asked people, we are not talking about MPs reaching their people, we must also think about the people reaching their MPs. If

you give helicopters to MPs, are you going to give helicopters to the people. When they wake in the morning and they feel they

have a problem that they need to present to their MP, will you avail a helicopter to them to reach the MP.

So, I will be saying and I said, we will refine this. The factors must be population, geography, difficulties, the ecosystem

involved, the infrastructure that is in place, both of nature and of human development. There are certain factors that are

50

attributable to the natural climatic conditions, but there are other factors of infrastructure ……..

(Interjection) Prof. Yash Pal Ghai: John we got your main point. Thank you. (laughter)

Com. Kangu: …. of infrastructure that go to the past development that has taken place in our country and then going back to

the mandate as Com. Yano has said, our mandate in which we have reflected in our ideology is equitable distribution and

re-distribution of resources.

Prof. Yash Pal Ghai: Charles, please be brief. It is getting to lunch time.

Com. Maranga: Thank you Mr. Chairman. I want to agree on a number of issues:-

One, all those who have suggested we need a specific criteria on how to make up the constituencies. But Mr. Chairman, as I

want to agree with Com. Raiji, yesterday we had approved a point that we are going to stick with the 210 constituencies and

90 seats for proportional representation. But Mr. Chairman, this issue of constituencies is very contentious, and I want to put it

under the same category as the boundaries of districts, boundaries of provinces, land issue, and even ethnic minorities.

Mr. Chairman, in some areas where we went, there are some ethnic communities who felt that they can never give a Member of

Parliament if they remain still in the same constituency with the other ethnic communities. A very clear case is in Trans Nzoia,

where we were told point blank, that, the Sabaots will always want to have their own constituency, because the Bukusus

always outnumber them. So, I think that is a clear case where people say, if one of the criteria is geography, population and so

on, that maybe another diversity which must be added is ethnic communities concern or even minorities for that matter.

So Mr. Chairman, I am suggesting that, we can take affirmative action on areas, especially North-Eastern where they have been

left behind and other areas, but Mr. Chairman, it might not be possible to resolve this issue in this Plenary, but I am suggesting

that either we recommend a very special Commission to deal with all those outstanding issues, including the demarcation of

constituencies afresh, but meanwhile, we can agree with that principle, and then, maybe, agree to set up that Commission to

deal with all those issues.

Mr. Chairman, we have the facts and we have the views of Kenyans. Otherwise Mr. Chairman, this is not something which can

be done in a month or two. Thank you.

Prof. Yash Pal Ghai: Thank you very much.

Com. Baraza: Mr. Chairman, I don’t want to take too much of the Commission’s time. I do agree entirely with Prof.

Okoth-Ogendo’s proposal, I happened to be with him in some of those very difficult constituencies in North Eastern Province

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and Eastern Province, upto north Moyale, and before I saw it for myself, I could easily have bought the idea that constituencies

should be dictated by their population. But having seen what obtains on the ground in a constituency like North Hola, which is

as big as Central, Western, Nyanza and Nakuru Districts put together, and we did see for ourselves that the MP has never even

reached the few people, we think are few. He can’t, because of the share size of the constituencies. And I think looking at also

the difficulties in terms of climate, and ecosystem, I think we should retain the principle of geography, demography and

population. I think we should retain that.

Prof. Yash Pal Ghai: Kabira?

Com. Kabira: Thank you Chair. I want to go back to the issue that was raised by Com. Hassan at the beginning of this

debate. That the discussion we have here is very well reflected in the current Constitution. I thought that is what he had

recommended. And I have just been listening to the proposals, and if you look at the Constitution page 27, all those things are

reflected in the Constitution. So, I think maybe we needed to just look at what is not there, then recommend it, because, they

are itemized and they are clearly reflected. But I think the one issue that I don’t know how we will need to deal with it, is the

issue that was raised by Com. Zein, when we talk about population, we have problems with the way we deal with our

population, that it is not sided, etc. I don’t know how we deal with that, but all the other issues that we are recommending here,

actually, appear in the current Constitution.

Prof. Yash Pal Ghai: Githu?

Com. Githu: Mr. Chairman, I agree with those who say, that it has never been the law of Kenya and probably we do not

wish to make it the law of Kenya that constituencies are based only on population. The law of Kenya has always been, that

there is a multiple criteria for the determination of constituencies, and probably the consensus here, is that we want to retain the

multiple criteria.

Having said that, I would like to agree with Com. Maranga that we probably do not have the time here or even the resources to

go into the details of what restructuring constituencies in this country today would entail. And therefore probably the best way

to proceed is to suggest the draftsmen to give us some transitional provisions that may help us to probably set in place a

Boundary Commission, and there maybe several areas where the Boundary Commission will be relevant. We heard from the

people that they want some provinces re-demarcated as it were, we heard some people say they want the districts

re-considered and we have heard from the people, that they would want constituencies re-considered.

Probably the best way to go is to have a Boundary Commission recommended in our transitional provisions, and they can deal

with all that. But the Constitutional criteria, we re-emphasize and are committed to it.

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Com. Prof. Okoth-Ogendo: I think we want to be careful in how we read Section 42 of the Constitution. That section gives

the Electoral Commission the discretion to consider, the primary criteria there is population. And I think what I am saying is

that it should not be at the discretion of the Electoral Commission to do it. That this recommendation is saying, the norm is

population, which is what we have here. And then there are variations. The argument I heard out there is that, the norm cannot

be population. All the things that are listed in 42 sub-section 3, A to F, are part of the norm, and this is what I would like to

see. I wouldn’t want to put back section 42 and think that, that should be the problem. It has created a problem.

Prof. Yash Pal Ghai: I think what I had said was that, at the end of this discussion we should leave formally the criteria to go

into the Constitution. But I think we have had very good discussions, I think we have a consensus. The next person is Salome,

you have not finished?

Com. Prof. Okoth-Ogendo: Just to make an intervention which has changed my submission. Section 42 as I understand it,

proceeds on a logical and necessary requirement of democracy. As I understand it, and Com. Kangu has told us about the

ideology of the State. If we are creating a democracy, the basis of a democracy, is one-man-one-vote. There is nothing more

whatsoever from the Commission proceeding from A, recognizing that a democratic politics must be grounded on

one-man-one-vote. Then secondary, curing and Com. Zein should hear me on this, curing the inefficiency that may result from

a one-man-one-vote.

And Mr. Chairman, we have been through this argument before. Constitutionalism is one principle, and democracy is another

principle. Constitutionalism, if you would protect me Sir, …..

(Interjection) Prof. Yash Pal Ghai: Yaah, please let us give the floor.

Com. Prof. Okoth-Ogendo: Constitutionalism does not require that we approbate democracy. I am committed, as I am

sure all the Commissioners here are committed, that there should be no community in Kenya, discriminated upon or left out of

the political process on the basis of their numbers. However, it is one thing to say, we will recognize and protect minority

voters, and quite another to say, that we shall make numbers subservient to geography. I think the rush…..

(Interjection) Prof. Yash Pal Ghai: Hold on, I think we have got your point. Let me now ……

Com. Prof. Okoth-Ogendo: …. democracy in the Constitution. On the other hand, we are saying, that we have to take both

into account.

Prof. Yash Pal Ghai: Please let me chair the session. I am going to call on Salome, Bishop, and I am going to try to sum up.

And it is already lunch time.

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Com. Muigai: Thank you very much Mr. Chairman for recognizing me at long last. It is….

(Interjection) Prof. Yash Pal Ghai: …… people who put up their hands, I am tired of this kind of insinuation.

Com. Muigai: I think Mr. Chairman the problem with me and you is that, there is a person before us. You sometimes are

able to see me, sometimes you are not because there is a human shield.

(Interjection) Prof. Yash Pal Ghai: Go on.

Com. Muigai: I think what we have in front of us Mr. Chairman, and has been is a reality in Kenya is that, there are some

areas that are densely populated and there are some areas that are sparsely populated.

The other fact is the fact that, each person wherever they live, have a right to representation. So, I find it a bit difficult to find

this Commission sometime, arguing as if we are in either or situation, which we are not. Our responsibility is I see it, is to ensure

that every member of this country is represented and is represented as effectively as it is possible for this Commission to suit the

mechanisms down.

I therefore think that we need to take both geography and population into account and none of them has greater value than the

other. I feel a bit sad when people are arguing against the density in a population as if that is something we should be or people

should be apologizing for. Those are facts, that is the way Kenya is. So we need to find a way of getting from there to the

reality as it is on the ground to where we are given a responsibility to make a Constitution for everybody in Kenya.

I therefore would like to propose that, we take population…..

(Interjection) Prof. Yash Pal Ghai: Salome, this is not a sad conversation, we should soon be over and then you can

continue your private discussions.

Com. Muigai: We take population into account. We also take geography into account. But we also look at the minorities

that told us when we went into the constituencies, that even if we take these two into account, they still will be left out. We

need to find a way of also bringing them into feasibility and representation. Thank you.

Com. Bishop Njoroge: Mr. Chairman, when we are doing this reflection, we must have always in mind what the people told

us. If we are not careful, there will be a tendency of I as one from Central Province, maybe trying to fight for the rights of those

people, and that will be dangerous for this Commission. If we start that way, in that …..

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I want to say, Mr. Chairman, that we are a Commission charged with the responsibility of thinking out issues for Kenyans as a

whole. Therefore, when we went to North-Eastern Province, it was very clear that those people feel they are not well

represented. One MP is covering so large areas, that must be taken into account.

When we went to Central Province, people told us, they are not well presented, because one MP is covering so many people.

So, we as a Commission, charged with the responsibility of Kenya, let us take the needs of pastoralists, then take the needs of

those with large populations. It is only through that, then we can come up with a Constitution that can create peace. Therefore,

I say, population and geography, and also I say, that we must recommend a Boundary Commission to be instituted, to be able

to come up with a rationale basing on these two ideas.

Prof. Yash Pal Ghai: Thank you very much. It seems to me that actually we have very substantial consensus. Strucking

points maybe different, but I think we are agreed on the need to recognize those population and geography. And also, I think it

is important that we don’t get communities in the marginalized, they are neglected, that should also be a fact to take into

account.

At the beginning of this discussion, John had said that he would like with his committee to come back to us with a new

formulation, that what is in the paper wasn’t their final considered recommendation, and I would like to propose that the

committee could meet even today, and on the basis of each discussion, give us a formulation. Because, I do believe we are

really not at all for our report, and I think we need to look at section 47 formulation. It does have all the ideas there, but the

balance may need to be reflected and we leave it to committee No. 2, and hope that they can give us their recommendations

today.

One other point which I like to dispose off before lunch because there again, maybe there is a consensus. Is whether there

should be a separate body or drawing boundaries. I think the two proposals on the table, one is very specific, in relation to the

transition matters, but given the time constraints, we would accept the present boundaries as the basis for the next elections,

assuming on the basis of the Constitution, we are trusting, but that would also require that a Boundary Commission be set up, to

look at all these issues.

I know many submissions we have received have recommended that, and I think quite recommend there because, then it is a

task which requires time and consultation and so on, and we could require that to be done even before the next round of

elections.

The second general question for the future, whether we have the priority drawing up of boundaries for election purposes should

be vested in a separate body as the court had suggested. This of course will not be a standing body, in some countries

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depends that, it is time for re-drawing boundaries after census and so on, sets up a body, a full-time special body, there are

surveyors and demographers, and people like that on that body, who have better understanding of the factors that we are going

to put into the criteria, and so we could go that way.

Myself have slight preference for that, but, people’s arguments that we don’t want new bodies and there are some expertees in

the present Commission, but I am also prospecting that some of you who have mentioned, the other point I had thought of

before, that the Electoral Commission gets controversial because of the boundaries or that quite affect the other work. I think

that is a good point. So, if that is so, I don’t know if we are in consensus…… Okay, Isaack.

Com. Hassan: Mr. Chairman, on the issue of boundaries of the constituencies, people also in that context, because we have

talked about boundaries of the districts and even the provinces. People saw there were some ways where this was approved.

Maybe then, are we thinking of that figure picture, where we expand the mandate of the Commission, and ….

(Interjection) Prof. Yash Pal Ghai: Please that was Githus and Marangas….

Com. Prof. Okoth-Ogendo: Mr. Chairman, that we are on the question of boundaries is not just constituency boundaries.

What has happened is that, while the Electoral Commission was dealing with constituency boundaries, somebody else was

dealing with the administering boundaries, and that has created a lot of difficulties. I know of at least 7 constituencies that are

lying across administrative boundaries and it is time, if we are going to go for devolution at any level, then we have to rationalize

the boundary question. And I would myself, talk of boundaries, not just constituency boundaries or boundaries as a general

problem which should be dealt with by a Boundaries Commission and take it away from the Electoral Commission.

Prof. Yash Pal Ghai: Yes, Zein. Can you make it very brief because….

Com. Zein: Yes, very briefly. I agree with the formulation of Prof. Ogendo, but that does take care of the transitional

procedures which you are making reference to Professor.

Prof. Yash Pal Ghai: No, I think as I understood the transitional…. I mean for the next elections, I think we are agreed, let

me say, we will recommend the Boundaries Commission which will have its broader responsibility. And then, for future electing

boundaries, we would set up a committee or whatever you want to call it, when the review is due, it should only be after census.

And while we are talking about census, I have taken note of Com. Zein’s point and I think, we need probably to give a little

bit of thought to the question. It is not only in our country that census faces problems, countries have gone to civil war. Nigeria

went to civil war, probably because of the difficulties of census. So I think we need to think how we can ensure regular,

reliable and sensitive, one way might be to make the central bureau as independent of it, but maybe there are other ways, so

please bring your reports to this….

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While I am at that point, we do have people who take notes, but I don’t have a secretary to me. I know we have been

postponing some issues. So, if you could please kindly look through your notes, as I shall do my own notes, and just bring a list

of things we have been postponing, so they don’t overlooked, but we will also look at the notes which have been prepared and

they are quite reliable notes, detailed. But please look through your own notes and let us have that.

Now, finally, I know that some committees are anxious to meet today, so that they can clear the drafts which have been

prepared for their committees, so they can be circulated today and could be taken up tomorrow. So, what I am going to

propose is adjourning for lunch now, have a quick lunch, meet with the committees and tconvenors has requested, and let us

meet at three o’clock here, so that we can then continue our discussion.

The next item will be political parties. Sorry, just Bishop and then Charles.

Com. Bishop Njoroge: Mr. Chairman, when we started, we did agree that we will work against a programme, and it will be

very important for us to have an appraisal. According to the programme, we set ourselves, where are we? Because now we

are in the middle of the week. We really do need to keep our minds going back to that.

Prof. Yash Pal Ghai: The short answer is, we are behind our schedule, but it is hard to say how long the different

recommendations will take for us to dispose off. I think you have a fair point, I think we need to slightly speed up our work.

As I said yesterday, I don’t want to unduly rush you because these are extremely important issues and we have extremely good

debates, and I don’t want to curtail, but please also do remember that we do have time constraints and maybe we could have

appraisal after lunch, by which time we will have a clearer idea of where the different committees stand.

So, my proposal has been, I don’t know whether Charles will accept that, that we meet at 3.00 p.m., by which time committees

will have finalized the text, they can be circulated and given to us by tea time. It may be a bit of pressure on you, but I hope you

will accept that in the circumstances. Charles?

Com. Maranga: Mr. Chairman, given the volume of work and given that we have not had a chance to go through that, Mr.

Chairman, I suggest that if it is not asking too much, we meet by 3.45 p.m. rather than 3.00 p.m. so that people have enough

time to come. Yaah, 3.45 p.m. 3.30 p.m. then.

Coms. (inaudible discussions on time by all Commissioners)

AFTERNOON

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Prof. Yash Pal Ghai: Okay, can we just resume our meeting. You can start, yaah. Now, we are going to look at political

parties. Now, do you have the papers. John, if you want to introduce the paper, please do so briefly.

Com. Kangu: Yes, I will do that. Mr. Chairman, before you is a paper on political parties. Now, in this document, we have

started by seeking to define political parties, and you will notice that right at the beginning from page 2, we are saying that the

definition that is available is a functional definition that seeks to identify the functions of political parties. We have given some

comparative studies, particularly, the German basic law and the German law on political parties which give some very detailed

functional definition of political parties.

Now, the reason we have done so, is that, once we understand the role of political parties in governance and which we are

dealing with at page 5, we will then be able to appreciate that we should not look at political parties from the narrow

perspective of their providing vehicles or avenues for people to exercise their rights to assemble, but that we should look at

them from a wider perspective of an important institution that plays a very important role in governance.

Now that done, we will be able to provide for them in a better way in the Constitution so as to be able to engineer the functions

we are saying parties can play in governance. So, we have defined in a functional manner, and at page 5, we have identified

some of the roles and functions of political parties, and this run through to page 9, at which we have sort to distinguish between

the role of political parties generally, from the role of the winning party that becomes the ruling party and of course the

responsibilities a party assumes when it becomes the winning party and therefore, the ruling party.

Now, going to page 10, we have differentiated the winning party from the losing party that becomes the opposition party or

parties. And we have also tried to say that, they should also be allocated a specific role within this scheme of roles, so that all

of them are seeking to advance the general roles of political parties in governance.

We have then moved on at page 11 to look at the present situation in Kenya under the Constitution, and have noted that the

Constitution doesn’t seem to directly and effectively provide for political parties, but impliedly, it suggests that the political

parties play an important role as we have identified a number of things under our Constitution that cannot be done otherwise,

than through political parties, and we, in terms of those roles, have also tried to look at comparative studies from other

countries, South Africa, Tanzania, Germany and Uganda, and we have therefore said that, if political parties are this important,

then it becomes….. (end of side A)…… or law on political parties.

And at page 15, specific concerns arising out of the current party situation in Kenya are discussed, running through several

pages, and one major concern that is identified is about the internal governance of political parties and the lack of democratic

practices and accountability mechanisms in political parties, as one of the main concerns that should be addressed.

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At page 17, we have identified the issue of financing of political parties, as one of the concerns that ought to be addressed. At

page 19, the issue of accountability of political parties, in terms of their finances and their democratic practices and both to their

members and to the general public is also discussed.

At page 20, we identified need to promote a democratic culture through the political parties and in the political parties, and we

conclude therefore, that a number of issues and problems raised, ought to be addressed through the Constitution, and at page

21, we looked at the views of the Kenyan people, starting at page 21, the views of the Kenyan people and their concerns as

expressed by themselves, and this runs through page 22, 23 upto 25, and from page 25, we consider our own conclusions and

recommendations, and these recommendations run through to page 32, where we have dealt with those recommendations in

terms of those separate areas and issues that are raised. We have recommendations on the right to 4 political parties;

recommendations on qualifications for registration as a political party; recommendations on the procedure of registration

including the need for a two-stage registration process, a first one that is kind of temporal and then a final one; and of course we

will need to consider what needs to do during the temporal stage before he qualifies for full registration, and that is a process we

can understand better if we read the Tanzanian Political Parties Act.

Then, we also consider the question of de-registration of political parties or how a political party can be declared

unconstitutional, and then at page 29, the right to join a political party; then recommendations on functions and roles of political

parties; and then the question of financing of political parties is at page 30; the supervision of political parties also at page 30;

and at page 31, disciplining party members and then relationship between the ruling party and the state, because we said, one of

the biggest problems in our country has been identifying the republican role of the ruling party. Previously, the ruling party had

operated as if it owes responsibility only to its members and not to all the citizens.

And finally, at page 32, we have given some comments on handling defections and finally, some recommendations on what

should go, not into the Constitution, but into a law on political parties. That is as much as I would like to say, Mr. Chairman,

the members can therefore take up from there. (clapping)

Prof. Yash Pal Ghai: Thank you very much. Githu.

Com. Githu: First, to thank John for being very brief and very concise.

Two, quick issues, Mr. Chairman, first is the right to form political parties. John says that the right to form political parties,

rather his group says, shall be protected subject to the provisions of the Constitution. I would like a clarification on what those

would be.

Secondly, Mr. Chairman, the right to join political parties page 29. Everyone is free to join a political party. Again, this is one

59

of those rights we were told by Prof. C. L. Peter, that exist without any limitation. I personally …………. (inaudible) out that

there are such rights. It would appear to me that a political party is formed by persons who are like-minded, they publish a

manifesto, they publish a Constitution of the party, it is within their rights, it would appear to me common sensibly, and I could

be wrong, that they can say, that this is a party formed for the sole purpose of supporting Majimbo, at a political platform and

ideology. They can exclude people from that party, subject to normal procedure as I think, who do not subscribe to their own

political views. And I would like to know whether everyone is free to join a political party, means, that political parties lose the

inherent democratic and basic right to reject persons who don’t share a platform with them.

Thirdly and finally, on page 31…

Com. Nunow: Mr. Chairman, as out of procedure, I think I would suggest that we deal and respect with each section in turns.

Prof. Yash Pal Ghai: I was about to say the same myself because I think your first point is very simplified, but I think,

otherwise…..

Com. Bishop Njoroge: Mr. Chairman, in respect to my friend Dr. Nunow and to you Sir, maybe that is why we are going

back on issues, so that if one person has spoken on the few points, then he doesn’t have to speak again

Com. Githu: But I will be guided by you Sir.

Prof. Yash Pal Ghai: I think it is more systematic to do through…..

Com. Githu: Okay, then I will deal with only the first comment that I have made, which was an enquiry from the learned

author.

Com. Kangu: I can recommend right away Mr. Chairman, that at page 27, we are talking about the right to form political

parties. And if you go to 9.22, we are talking about qualification for registration as a political party. So that is why we are

saying, at bullet 1, in 9.21, that the right to form political parties will be subject to the provisions of the Constitution. And the

Constitution will lay conditions which must be satisfied before a party or an organization can be registered as a party. So, I

think that statement is proper, that as we go down, we will be able to see what conditions are necessary. And so, that right is

not just a limitless right, it is subject to what the Constitution said is supposed to be a party.

Prof. Yash Pal Ghai: Thank you. Charles. Why don’t you then begin with 9.22 or 9.21.

Com. Maranga: Yaah, 9.21. Mr. Chairman, I have a problem with the Electoral Commission becoming the one registering

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political parties. Mr. Chairman, I would suggest that we have a separate office to register….

Prof. Yash Pal Ghai: 9.22.

Com. Maranga: 9.22?

Prof. Yash Pal Ghai: 9.21.

Com. Maranga: 9.21. I am on 9.22 Sir, so, can I finish my point? So, Mr. Chairman I am suggesting that on 9.21,

because we are under the rightful political party, Mr. Chairman I am suggesting that it will be wrong to have the Electoral

Commission registering political parties. There are a number of reasons as to why we should not allow the Electoral

Commission to register political parties. So, I strongly suggest that we have the Registrar of Political Parties. Thank you.

Prof. Yash Pal Ghai: There is two different forms of registration – one is registration as a political party, which is at the

moment done by the Registrar of Societies. Then there is maybe registration of political parties which we want to contest

elections. Some countries make the distinction. If you want to contest elections, then, you have to be registered by the

Electoral Commission. So, maybe we need to keep that. We don’t need to have two forms of registration, we can have only

one or it seems to me that parties which are registered for electoral processes, should have certain conditions imposed in the

way they are set out in 9.22. But if we are just forming a political party for lobbying and so on, then maybe these other strict

conditions may not be applied.

Anyway, that is just way of information. So, we have a proposal from Charles that in 9.21, the second bullet, that registration

should be done by some other body. You have a recommendation for the other body?

Com. Maranga: Yaah.

Prof. Yash Pal Ghai: Which body ……

Com. Maranga: …….. (inaudible)

Prof. Yash Pal Ghai: You mean create a new office?

Com. Maranga: Yaah.

Prof. Yash Pal Ghai: Ooh no, Charles. (laughter) Anyway, alright.

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Com. Maranga: That is my proposal. There should be a creation of Registrar of Political Parties which will deal with political

parties, religious organizations and non-governmental organizations.

Coms. (background discussions by Commissioners)

Com. Nunow: Thank you Mr. Chairman. I think I won’t propose the two-tier registration that is implied here, and the one

that initially registers as a political party should only graduate to a political party that contest elections if it meets certain

additional criteria. So, I think the rule for registration, the basic rule for registration be uniform, the political parties are not to

participate in elections, should be additional criteria including number of membership who have mobilized, including the national

outlook and a number of other things that are considered desirable in formulation of those procedures, so that you don’t have

each political party, one of the registered having the open cheque to contest elections even when it is comprised from a village

somewhere. That is my proposal.

Prof. Yash Pal Ghai: Okay, John.

Com. Kangu: Mr. Chairman, there are two distinctions that are being made here, and I feel compelled to make some

correction. We considered what the Chairman talked about, the two types of registration, and we were of the opinion that we

do not need the two types, we should go for one registration. And our argument on the issue of the Electoral Commission as

opposed to a Registrar of Political Parties, we made a decision on the basis of whether we will have sufficient work for a new

office called, a Registrar of Political Parties, and we thought there would be enough work. So that is why we decided that, then

we would rather put the registration under the Electoral Commission.

Now, listening to Dr. Nunow speak, I can see him referring to what otherwise is supposed to be in our presentation as a

two-stage registration process, which is different from two types of registration that the Chairman is talking about. The stages

will be there for every party that is seeking registration. That you first, you may be given temporal registration for a specific

period, and if you satisfy certain conditions during that period, then you are given full registration. But if you don’t satisfy the

necessary Constitutional conditions during that period, then in fact you are de-registered. You are not given the full registration,

and I said that, that is the approach that is used in Tanzania under their Political Parties Act. If we choose that, and we follow

the Tanzanian example, then we will be able to identify the right which a political party is entitled to, during the period of

temporal registration as distinguished from those rights that a party will be entitled to after it has secured full registration.

In the Tanzanian example, political parties are not allowed to present candidates in elections, and are not allowed to campaign

for candidates in elections during the period of temporal registration. So that is what we have in mind, and that is the

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clarification I wanted to make. That on the issue of registration types, the committee has settled for one approach – one

registration, which does not distinguish between electoral parties and non-electoral parties.

Prof. Yash Pal Ghai: Thank you for the clarification. Raiji after that Ibrahim.

Com. Raiji: Thank you Chair. I support that one registration as opposed to several registrations, but there is a point that has

been raised by Dr. Maranga which I think gives me concern. This question of the Electoral Commission. We are transforming

it into an independent office to carry out elections, and I imagine that, if there is going to be a system of registration, it will be

subject to Judicial review and if for example the Registrar disqualifies or if the Electoral Commission disqualify a party or refuses

to register and its decision is overturned, and the party now comes to conduct elections or to engage in its activities, I see there

will be a conflict of interest, in the sense that the Electoral Commission would have been party to the proceedings challenging its

decision.

Now, the issue really arises, then where to, who is to register? I entirely agree with you Chair about my apprehension about

forming more political offices. We do in fact have an office. The fact that the office does not function properly is due to the

kind of weaknesses that I imagine will rectify this. That is the office of the Registrar-General, which is under the Attorney

General and I think as when we come to that office, you find that probably, there will be need to give him a certain

independence, some kind of transformations, and probably we could create a department within that office, to deal specifically

with political parties and another one with religious society, within the same office of Registrar-General, with some safeguards to

prevent abuse, like has happened in the past. But I am very apprehensive of creating any further Commissions or offices.

Prof. Yash Pal Ghai: ………. (inaudible) in Germany and other places, the Electoral Commission does the registration. Do

you know deal with the question of registration?

Com. Pr. Ayonga: Yes. Mr. Chairman, I want some clarification from John as a convenor, about this temporal registration

and full registration and the registration, the Tanzania way. I would like to know how successful has Tanzania come out with it?

Because, I can see danger if we are going to experiment something which has not been successful elsewhere, just because, a

neighbour is trying something. We should wait and see or bring up our own way. And what would prevent this de-registered

party, which you may say well it temporal from a person from that very party coming out as an independent person. You can’t

prevent him. He can fall under independent person and look for their votes.

Prof. Yash Pal Ghai: Thank you. Ibrahim?

Com. Lethome: Thank you Mr. Chairman. On the issue of the code of conduct, I entirely agree with John, that is on page

28, the second-last bullet.

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(Interjection): (inaudible talks by Commissioners).

Com. Lethome: Ooh, on registration. Okay, qualifications for registration. As we went around…….

(Interjection): (inaudible talks by Commissioners).

Thank you Mr. Chairman. I think before we consider the rights of registration, maybe it will help us, whether we have decided

how many political parties we are going to have. For instance, if we decide that as many Kenyans told us from the summary of

the views which are made on my own note, most Kenyans wanted between 2 and 5 political parties.

Com. Wambua: First of all, I was thinking we need to agree on whether we need 4 or 2 or 3. Once we have agreed on that,

it will be easier now to say, the type of registration. Because, if we have a number, let us say Kenyans have agreed, we are

proposing 4. There is no need to have a two-stage type of registration, because, in our history in Kenya, I don’t think political

parties have formed for purposes other than vying for elections. Most of them may not win those elections, but their main

purpose is to ensure that they get a chance to go to Parliament. So, if we decide the number of political parties and we limit

that, then we can decide the mode of registering them.

Prof. Yash Pal Ghai: Kabira?

Com. Kabira: Thank you Chair. I wanted to agree with the committee, that we should make the Electoral Commission a

body that registers political parties. I think in line with the kind of political qualifications and political activities of the parties and

their relationship to elections, I think in a sense we are consolidating our efforts and promoting the activities of political parties,

monitoring them and so on.

And I also thought of the political parties bill that was prepared by a number of political parties, actually recommended the same

thing, that the registering body should be the Electoral Commission.

Prof. Yash Pal Ghai: Okay, so we need to decide basically on 9.22 which we have all agreed that there should be

registration. There seem to be preference for one form of registration, though, it could be a interim registration. The question is

which body should be responsible for registration? We know your views Charles, so, unless you have anything to add. Okay,

Charles and then….

Com. Maranga: Mr. Chairman, the example which has been cited which John is using very well, even the two-stage

registration, the Tanzanian case, in fact, the Act in 1992 in Tanzania provides for the establishment of the office of the Registrar

of Political Parties, forms of registration of political parties, disciplining of political parties and other regulations, governed

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operations of political parties.

Mr. Chairman, if we are going to start financing political parties, we need a body which will be able to examine the records.

Mr. Chairman, it will be a lot of work if parties are going to start operating as political parties. You know parties are even

supposed to own properties, as opposed to own many other things, to be able to survive. If that kind of situation reaches, then

Mr. Chairman, this position of Registrar of Political Parties, is so essential, and if you are ready to entrench the formation of

political parties and regulate them from the Constitution, then it is only fair that you have a body to do it.

Prof. Yash Pal Ghai: We agreed there should be a body. The question is which body? Zein has the floor and then Nancy.

Com. Zein: Thank you Chair. In the example which you are asking, in the Germany example, what they do is, the power of

registration and the power of disqualification are in separate terms. I think, apart from the question which you are asking,

should we distinguish them in that fashion or not. If the powers are in the same body, there is tendency for abuse. In the

Germany case, they use the Supreme Court in terms of disqualification or banning of a party. They use the Constitutional court.

So, in making this determination, when we are using an example like that….

(Interjection) Prof. Yash Pal Ghai: Done by the Electoral Commission?

Com. Zein: Yes, the registration done by the Electoral Commission, but it does not have the power to disqualify. But in the

case which we are dealing with, it seems that the disqualification and the registration are in one body. I will be uncomfortable

with that, if we are separating the functions, I will have a problem in preference of one over the other. But as long as those

functions are not in one hand.

Prof. Yash Pal Ghai: Assume that the decision of whoever is the registering body to register or to de-register at least be

subject to Judicial review. Nancy, and then Mrs. Yano to sum up.

Com. Baraza: Mr. Chairman, I was going to support registration by the Electoral Commission. The reason being that, we

are strengthening it and I think, an extra job to do for them will not be too much and it is in line with this other function, and I am

suggesting that as opposed to the present registering body. If we remain there, I think we are going to sack so many people in

the process of trying to enforce this Constitution. I think that is an office which has decided to act obliviously to the democratic

ideals of this country. It is not just that we strengthen it, I think there are so many other things that have to be done.

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But my major reason is that, that is a job which will be in line with the other functions of the Electoral Commission. My strong

reason for proposing the Electoral Commission is that, that function will be in line with other functions of the Electoral

Commission. And of course that will be subject to Judicial review.

Prof. Yash Pal Ghai: Some of those views, is there way to harmonise them? John do you have…..

Com. Kangu: Mr. Chairman, as I said at the beginning, the argument that the Electoral Commission is required to be

independent, and therefore it should not be the one to register political parties if it wants to avoid being dragged into party

politics, was put, and we considered this, and our main concern was, and Com. Githu has said many times that we shouldn’t

end up creating so many offices. And our main concern about an office of Registrar of Political Parties was that, obviously, he

is not going to have enough work to keep him there as an office. And that is why we came to the conclusion that we can with

proper structuring of the Electoral Commission to make it very independent and well insulated to use it to register political

parties, but, listening to submissions of Com. Zein, I do see that maybe, there maybe need to separate but the question is,

should it be by way of creating a completely new office, or can we identify some other office that has some other functions and

add them this particular function? But the worry is that, the other thing is that people want to deal with an office that is distinct

and have certain perceptions about the existing registration mechanism. The Registrar of Societies has been seen as an office

under the office of the Attorney General, and so it has been seen that it is the Government that controls the registration process

of political parties and therefore gets an opportunity to abuse that power.

And if we say the Registrar-General, the way Com. Raiji has said, I am sure Kenyans will still argue the same way. That the

Registrar-General is an office under the Executive, and they cannot trust him with the function of registering political parties.

And that is why we said, the Electoral Commission which we are creating as an independent Constitutional office, maybe better

placed to deal with that and avoid those accusations.

Now coming to what….

(Interjection) Prof. Yash Pal Ghai: To just add on that, as a possible compromise, would be to give a right of appeal against

a decision of the Electoral Commission on the registration. So, if you move the Judicial Review to be a right of appeal, and then

comes close to the German model, and then maybe a compromise.

Com. Kangu: I was saying, coming to what Mohammed raised, I don’t want to use the other name because, it will………

(laughter) we will be considering that down the line, and we reasoned on the question of numbers and said that, although many

Kenyans told us, we limit the number to a specific number, it will not be reasonable for us to state a number in the Constitution.

But we can limit numbers by setting conditions that will at the end of the day restrict the numbers. We set certain conditions in

the Constitution, so that people don’t come and say, you have denied us our rights to associate by forming a political party

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because you have limited to 4 numbers, and we already have 4 parties and we don’t like any one of them, we leave room, that

you are free to form the party you want but so long as you meet these conditions. If the conditions cut you out, you cannot be

heard to say that you were denied your right to associate. So, that is why we said, let us not state the number but state the

conditions.

Prof. Yash Pal Ghai: Okay, it seems to me that we are agreed on the need for registration, and I want to have my

compromise, will be acceptable that the Electoral Commission is responsible for registration, de-registration as well, but, there

will be a right of appeal to the Supreme Court against their decision. So, let us go to Germany model. Is that acceptable?

Coms.: (inaudible discussions)

Prof. Yash Pal Ghai: No, High Court, yes. Okay, thank you very much. 9.22 which is qualifications, yes, Ibrahim.

Com. Lethome: Mr. Chairman, looking at the qualifications as suggested or commented by Mr. Kangu’s team, I find

something missing here, because, as we were moving around, Kenyans were telling us that there is need to limit the number of

political parties. And one of the ways of limiting the number of political parties, is to make sure that, and also to reflect the

national character which has been suggested by Com. Kangu. Before a political party is registered, it should be able to show

that it has that support, by maybe showing that it has a number of people supporting it in every province or every region. I

would like to see that here.

And also, if at the end of the day we are going to recommend that registered political parties be funded by the Government, we

should have a way of limiting them because what stops me from forming a political party with my clan, with my family, to get the

funding. Only if I can show that I have that national character. So, I would like to see that maybe reflected well.

Prof. Yash Pal Ghai: And as executive committee shall be representative of all parts of the country. You mean something

more than that?

Com. Lethome: A certain number because, suppose I have Ahmed alone in North Eastern Province, Bishop in Central

Province and Dr. Salim in Coast Province. Maybe, we need to qualify that national character. And Kenyans suggested a

certain number.

Then, why should a party be disqualified because it is purely founded on religion basis? Because, suppose that party is called

maybe the Islamic Party of Kenya, but there are Muslims all over the country, so it has support and that national character.

Why should it be disqualified just because it is a religious party, and somewhere in the papers, I think in the beginning – the

Preamble, you said that you don’t know why ISK was not registered. Yet in some countries we know of parties called the

Christian Democratic Party. Yaah, Christian Democrats. Why don’t we have Hindu Democrats Muslim Democrats, Pick

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Democrats, SDA Democrats, or something like that.

Coms. (inaudible comments)

(Interjection) Prof. Yash Pal Ghai: Okay, let us give Ibrahim a chance to finish his argument.

Com. Lethome: Then, my last comment is on the code of conduct. Whereas I agree that we must have a code of

conduct, but I don’t know whether Com. Kangu will tell us who will develop that code of conduct. Will it be through an Act of

Parliament or maybe the political parties still. Does it encompass that? What do we recommend in as far as that code of

conduct is concerned? Thank you.

Prof. Yash Pal Ghai: Raiji?

Com. Raiji: Thank you Chair. Just a small contribution on the issue raised by my colleague Ibrahim, the question of religious

party. I think you notice that even the argument that you heard before, regarding the ethnic groups or families and so forth, we

have come from a certain environment under which there are a lot of deviations and so forth, and we are trying to get something

which has broad support. Most of our religious organizations may have broad support, but I imagine we are mindful of the fact

that religious organizations are sort of by nature, exclusive in the sense that, if I am a Christian, I will though not be allowed to

join the Muslim Party and so forth.

I think it is in that spirit that we are trying to broaden representation and to try and bring in place some kind of national political

party, because we are now operating from a background where we have tribal and even sub-tribal parties, and I think that is

why the contribution from the floor, I think that we have a certain minimum from every region to ensure that we move away

from our factional interests.

I think they will preserve their own history which led to their having Christians and all that. Some of it is not very paratable and

so forth. But I think in all situations, I think it may probably not, at this stage in all developments. It will not be in our interest to

encourage ethnic religious or other patterns based on other considerations that may hamper national unity and integration.

Prof. Yash Pal Ghai: Nancy?

Com. Baraza: John, I don’t know, in Greenland there is an old woman, but I don’t know how to put it…… yaah, they do

have party there, and in Kenya here, seeing how women have been marginalized, we have toiling with the idea of forming an all

women’s party, I don’t know what that pattern….

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Com. Wambua: Mr. Chairman, I think, this thing to the views of Kenyans, they decided and if I remember very well, Kenyans

wanted a number. I don’t know why we are running away from what people told us. Kenyans wanted a certain number. They

told us, go and be paid there but give us a certain number. Now, if you say, (Bishop I will give you chance) that we limit

through this conditions here, none of these conditions is unsatisfiable by 100 parties in Kenya. None of them. For example, if

you say, we want to promote and afford national unity through having an executive committee representing all parts of the

country, as Ibrahim has said, you can have all your colleagues here, after they leave the Commission, they can represent from all

provinces, abide by democratic principles they are undertaking to promote and practise democracy. Everybody can do that,

and so, the other conditions, they can be satisfied. But these people said, the current large number of parties does not seem to

serve any purpose.

Well, there is a problem about the number, I think John explained, there is a right of association given under the Bill of Rights

and to beat a terminal number would violate the rights of people to form associations.

Com. Wambua: So in countries like the U.S.A., are the people’s rights violated? In Britain or where?

Prof. Yash Pal Ghai: There is no restriction of the number of parties.

Com. Hassan: I hear your point, and I think it makes a lot of sense, but can that be reflected in the report? Because, we

have to justify it, why you have deviated from what the people said.

Prof. Yash Pal Ghai: Bishop, Githu, Zein.

Com. Bishop Njoroge: Mr. Chairman, I thought there was a problem that I was going to assist in solving, but I think, Hassan

has already taken care of it which is this. I think we need to put on the table and address this question whether we are bound

by everything the people said, because we have confronted that issue. For my part, there are many things the people say, that

are wrong, that are unjust, that are unequitable, that are unenforceable, that would render the legal system unjust. So, and I

think we must have the courage to confront that issue. We cannot sit here and pretend that we are slavishly following everything

that was said.

Many people told us in many places in Kenya, we don’t want a thief taken to court, and we asked them, how do you know this

is a thief? We know. We understand that we cannot vest the power to determine whether a person is a thief in the mob.

On this question of political parties, I heard so many Kenyans who said we want them limited to 2, to 3, to 5. I have no doubt

in my mind and in my conscious that they are wrong. Political parties, if we secure the rights of individuals to free association in

the Bill of Rights as we must, it is going to be inconsistent at the same time to purport, to limit political parties, except on clear

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definable, non-discriminatory Constitutional principles. That was just my first point.

My second point, Mr. Chairman, is on the national character, just to remind John. That when we use the word ‘national

character’, then you need to do a little bit more work in the Preamble and elsewhere, to tell us what the ‘national character’ of

Kenya is.

Com. Zein: Thank you Chair. There are certain things which when implemented must have an impact and remification on all

other aspects of the Constitution. For instance on the point which was raised by both Com. Nancy Baraza and Com. Lethome

on restricting registration of parties on basis of gender or on basis of religion, sometime this is necessitated by exclusionist

approaches that the establishment or the existing institutions have despite the qualification of national character.

Do we define ‘national character’ to include only the lower achrony of membership or do we define ‘national character’ to

include the supreme decision-making bodies of political party. If there is going to be a statutory mandate, if we are talking

about legislation, that a political party must not only reflect national character on its membership, but, on its highest

decision-making body, that there will be women there, it will not be only men there, then Nancy’s question will be answered,

and then there will be a more willingness to restrict in this version. If you say that the national decision-making body will not

only have one group of people of one faith, then Com. Lethome’s problem will be taken care of. Not being able to satisfy at

that level will then allow people to have other avenues for self-expression, for agitation, for political expression as it were. So, I

think we need to connect the restriction with statutory standard of practise and compliance in making ‘national character’ a

reality. Again, in defining ‘national character’, I think there need to be something more in principle in the legislation, not in the

Constitution but in the legislation.

The second point I would like to make Prof., is that, for instance the Germany law, draws distinction between regional parties

and national parties. I don’t if we want to make the same distinction here, so that we have provisions for both national and

regional and that the regional parties have a slightly less stringent measure of registration procedure.

(Interjection) Com. Yash Pal Ghai: I am not quite sure. Maybe you can inform me on whether regional parties are used in

the sense of parties operating at a level of the national or level of the state as post-federal, but I am not sure.

Com. Zein: They operate at the level of the state, not at the national level. So, as you rightly have pointed out, this then will

wait for devolution. When we have a paper on devolution, then we will know if we are going to make provisions for parties of

that nature or not. But thinking wider than the Germany experience, in just terms of principle, what if there was a political party

which just wanted to enter political elections? They didn’t want to enter national elections?

Prof. Yash Pal Ghai: That is a good point. I think we can come to that in devolution or even decide now if you like. So, are

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there any other comments, so then we can see whether there is consensus on 9.22? I believe there is except on this, I think

Zein has very helpfully suggested how we might deal with the question of ‘national character’ that was raised by Githu, but I

think there is still this question of numbers and I think there is a general view that we can’t really limit numbers because of rights

of association, also the difficulties of fairness, what number do you have, and you can support. Nigeria tried it at one time, they

said there will be only two parties, one socialist, one capitalist, you have to decide and the system didn’t work for more than

two weeks. So, it is difficult to operate, and so I think we will have to live with it as well. John said, some of these

requirements are quite stringent and maybe dealt with the state.

The other I think, where we discussed it yesterday, I think, the number will actually go down if now we are recommending

independent candidates, and the reasons we have so many. They are like only called…….. (inaudible) parties, so few

members that you can put them on ……. (inaudible) party. And so, I think we will possibly get to disappear then. And indeed

now there are 41 parties which are registered by October, 2000, and they are entitled to send delegates to the conference, and

have attempted to contest, half of them have completely failed. The phone numbers with the Registrar, the box numbers don’t

seem to work, letters get back to us from there, so already of the 41, it seems to me that, at least 20 are already working, and

only about 8 are in Parliament, so it practise it is brought less of a problem than it appears when you look at the total list. But

anyway, I believe that the general view is that, we handle very much about it, but if we encourage nationwide parties and the

number will probably decrease.

Then there is a final question, yes.

Com. Kabira: I just wanted to add on to what you are saying that some of the incentives created here, will also reduce the

…… (inaudible). You know like the funding of the various political parties, on the basis of the percentage of the votes that you

get, will also reduce, it will encourage people to merge more.

Prof. Yash Pal Ghai: Yes, I think Ibrahim’s point, we would come to, because you are already implying that because we are

going to fund them now, we might recommend that, they should discourage more parties. But I think there aren’t part of the

paper, but I think there may be rule which require you to demonstrate a particular level of support before you get that. So,

there is one question then left from my notes, which is Ibrahim’s point about why should we restrict parties which are truly

religious or linguistic or racial? I don’t whether we have any…. yes Bishop.

Com. Bishop Njoroge: Mr. Chairman, we were working on the aspect as to whether Kenya will be a secular state, and we

are trying to isolate religion as an ideology from the state. The problem in having political parties which are religious, if those

political parties come to power, then there is a possibility, the borderline between the religious expression and the political

expression will be diminished. And therefore, it is important to keep anything religious from the secular that you can then

guarantee a base that is lacking.

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But if we don’t separate religion from the state, then there is no reason why we cannot have religious political parties. But I am

sure in many countries, that is something that they would hate to have, and I know it can contribute a lot to disunity within a

country.

Com. Kangu: I would like to add on that Mr. Chairman that, truly if we seek a secular state, but we allow political parties that

are based on religion, and we are saying parties are organizations of citizens meant for various themes including trying to secure

the government and run it. If a party that has been registered purely on religious ground, secures government to run it, how do

we manage to maintain the secular nature of the state? So that is the issue we really need to think about.

And that will also go to what Nancy has raised. A party for men only or a party for women only. We are saying that we are

seeking an integrated society in which there is no discrimination on the basis of gender, and we get a women’s only party

winning elections. Women are already complaining about men forming governments of men alone, and one of our business

here, is to seek, to make a Constitution that will ensure that these past approaches are done away with, so that we can be able

to form a government that is inclusive, that brings men into it, that brings women into it, that brings different tribal communities

into it, that brings different religious organizations into it. But we say, organizations that are seeking to capture government can

be allowed to operate on an exclusive basis. Then we will be risking getting a women’s only government in place…….

Com. Baraza: In fact I was just informing you …….

(Interjection) Prof. Yash Pal Ghai: Yaah, just one minute. I am just looking round to see who have hands up and how to

organize the debate, but you start, and then Kabira and then Zein.

Com. Lethome: Yes, whereas I would like to agree with John Kangu, but then, let us go back to 9.22 bullet 3 – on the

national character. The reason, we should go to the cause of the problem. Why for example, IPK is going to be registered?

And why for example, we are talking of a women’s party and not for a men’s party. It is because of the marginalization of

these groups. I don’t foresee a situation where Kenyan men will be agitating for an all men’s party because they are taken care

of by the parties that are there.

So, we should go back now to the ‘national character’ and describe it. When you talk about ‘national character’, however, are

we just looking at the regional representation? Or religious representation? Then the ‘national character’ here, should be

broader, so that we take care of those people who are seeking to register religious organizations or gender organization.

Coms. : (inaudible discussions by Commissioners)

(Interjection) Yash Pal Ghai: I am happy that, I think we have been very fortunate in our country that we haven’t had major

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religious conflicts, or I do believe myself, that Muslims are marginalized, I think I have talked, from 1964 when I went to

Madaraka and Jamhuri Days, I am really quite surprised what Christians said when it was that, and even though we had Jamhuri

Day, but three days before Idd, nobody wished us happy Idd, Christmas was just a forthnight, and we wrote promise happy

Christmas. So, I do think it is a point we need to take seriously, but I don’t think that should be reflected in the formation of

parties, but we have to make a serious effort to acknowledge and respect all religions equally.

Yes, sorry.

Com. Kabira: I think actually I was going to follow the line followed by Com. Lethome, in fact, which was a builder what

Com. Zein had said. And yesterday when we were discussing with Com. Zein, he was reminding me that, the best definition of

the ‘national character’ is actually in the Act. By that maybe, you could borrow it for, you know, so that when you are talking

about regional representation, we look at the various diversities and say that, those committees should reflect that diversity, not

just region, religious, ethnic, gender, disability, and so on, so that an … (inaudible) could be defined as a ‘national character’, so

that we become more inclusive and therefore, we give opportunities to express their different needs within the various

political….

Prof. Yash Pal Ghai: Zein?

Com. Zein: Thank you Chair. Just to add a little matter, every time we speak about political processes in Kenya with

involvement talking about elections, and people kept on saying, let us learn from the history. What does the history of this

country tell us? For instance, no one can deny the fact that, repeatedly, senior government officials say Kenya is a Christian

nation, in public, on television, on radio. They repeat that, and at the same time we are being told that they should not be …….

(inaudible).

If you take KBC and people are complaining about KBC and campaigning, KBC has free Christian instructional programmes

running throughout the week, and if you talk to Com. Lethome he will tell you, even during ‘Ramadhan’ when they went to ask

for a programme, they were told, you have to pay concessionary rate. So, when we are talking about things like this, we must

put it in its proper context and perspective. Thank you Chair.

Prof. Yash Pal Ghai: Thank you. Salome?

Com. Muigai: Thank you Chair. I would like to add my point to the fact that we need to broaden the diversity, what it is that

it means. I also wanted to know from Com. Kangu and his group, when you say that the executive committee that is the

second bullet on 9.22, the executive committee shall be representative of all parts of the country. What does that mean in real

terms. Is it all the provinces? Is it all the districts? If my village is not included, does that mean that, that is not, can we tighten

that one a bit just to be more pro-active against some mischief because that can be in court the whole time without this manner

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of everybody coming to say that, my part of the country has not been included. For example, if I were in your party, would that

be seen to be representing the Rift Valley? Again learning from our history, what does ‘all parts of this country’ mean? Is it the

residents? Is it the ethnic groups? What do we mean by those kind of things. Can we think of them now rather than

retrospectively.

Prof. Yash Pal Ghai: And again, this is one of the issues that you have touched on many times, but we should think about it.

We would probably have a general principle in the Constitution, and then there will be no doubt, legislation on political parties,

which would provide the details of that, but we can think about it now, and John has promised to take it to his committee or

maybe we could discuss it now. Obviously, it can’t be a village but at least broadly the different parts of the country.

Com. Kangu: I think Mr. Chairman, I will suggest that we go…..

Com. Hassan: Before he answers, maybe, I have the last one, you also mentioned that….

(Interjection) Prof. Yash Pal Ghai: Yes indeed you can.

Com. Hassan: Because I know you want to respond to all the issues, maybe you can respond on…. Mine is also on the same

issue which Ibrahim has raised. I think what communities are marginalized or groups or people are marginalized? And then no

political party is taken care of their interests or their rights. And then you close the door for them, since it is a political party, for

them to be able to capture political power or to advocate for their interests. You really then squeeze them very tight, so tight

that, the possibility of them thinking of other non-legal and unconstitutional means, may come into fall. They end up taking arms,

for example, going into violence, noisy sessions is one of them or purely something …. (inaudible) in their area.

So, I think we should see a way where we are able to accommodate, because, they may not be able to satisfy this requirement

all across the board. Just like there maybe no political party which is in that particular area or that particular interest. And the

kind of people who come together to form a political party, and the system of shared ideology, which is possibly a minority

view in the country.

Take for example, take people with ……. (inaudible), they want to form certain political parties, all with that ideology. They

must be able to get across the board in the country not the provinces or the communities. So, I don’t know how we are going

to balance this step, but I think people should be allowed as far as possible, while this is true, people should be allowed to

come together as a community and fight for their rights.

Com. Kangu: Mr. Chairman, I would like to say that, coming from Com. Hassan, then we see the difficult we have.

Balancing between what the people told us, that limit the number of political parties and allowing sufficient room within which

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even marginalized people can be able to have an opportunity to participate in party activities.

Now, that is the challenge we have, but I want to go the Wanjiku way, that is….

(Interjection) Com.: Professor.

Com. Kangu: Prof. Wanjiku, not the Wanjiku that is supposed to be making the Constitution. (laughter). We need to

actually be clear on what we mean by the ‘national character’, and as Salome has said, I think it is not the best way to say, all

parts of the country, we should talk in terms of taking into account the diversities in our country, and we will be able to say,

diversities in our country is a phrase that is wider, it is a concept that is wider than all the parts of our country. So that we will

be able to say, we are taking into account the diversities of our country in terms of parts of our country, regions of our country,

in terms of gender, in terms of ability and disability, in terms of religion, in terms of marginalized groups and so on. And I think,

as the Chairman has said, when we have to put details, we need to capture a general rule for the Constitution. But when we go

to the detail in an Act of Parliament, we might need to look at what other Acts of Parliament or what Acts of Parliament for

other countries say, example, I remember looking at the Tanzanian Act on political parties, and they specify even numbers of

supporters from different parts of the country that you must show you have secured before you can be allowed to register.

So, if we specify the diversities properly, we might be forced to say, we want you to prove that you have supporters from this

part of the country, from this part of the country, you also have some mix of the religious groups in our country, and you have

some mix of gender and other things. It is a difficult thing, but we have been given that difficulty job as a Commission to do, to

appreciate the needs of our people and translate them into a mechanism that can satisfy them.

So let us deal with that, in the details of the Act, and I think I will suggest, as Mr. Chairman you had suggested, that, maybe,

although time is against us, we might need as a Commission to discuss some of these details and prepare some sample Act that

capture the spirit of what we are discussing, so that we don’t just leave to Parliament which may not understand the spirit of

some of the clauses we will have put into the Constitution, or the office of the Attorney General, because Mrs. Nzioka may

leave here, and hand over to her assistant who doesn’t understand what we have gone through in the debate. And I think we

have a responsibility to assist in that direction, and we may have to complete the Constitutional principles, and find some other

time to discuss the details of the Act that we want to come up with.

Prof. Yash Pal Ghai: Yes, I don’t know this is the right point to suggest that, to meet your thing, we could probably publish a

report, there is still bit of time, we can draw up guidelines, things like that, and present it to the conference.

Com. Prof. Okoth-Ogendo: Point of information. I don’t know whether John Kangu’s taskforce looked at the draft Political

Parties Bill which is attached to the report on taskforce on public order.

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Com. Kangu: We looked at it briefly, but I looked at it when we were still in Nairobi, but after you mentioned, I think early in

the course of the week, I haven’t found time to go back to it.

Com. Prof. Okoth-Ogendo: Yaah, because many of these guidelines are still there, and I think there is a copy, I don’t know

who has got it but somebody around the table borrowed it from me.

Com. Kangu: I will go and look at it. I think I have my own.

Com. Prof. Okoth-Ogendo: There should be a copy in the Library, because I borrowed one and I returned it just before we

came here.

And also, I believe there is another Bill which is not for Parliament. It is for non-parties. There are two versions, and we could

look at them.

Com. Zein: One of the strategies we should use is, the things we have control of, we should use. All these things we are

saying, they should go to our report in the minimum.

Prof. Yash Pal Ghai: They must. Okay, with that agenda Commissioners, are we happy with the 9.22? Okay, then we go

on to 9.2.3, de-registration of political parties. I know yes we had recently discussed this when we said that, de-registration

will be done by the Electoral Commission but subject to appeal to the court. Other issues there that are required, yes.

Com. Maranga: In bullet one, there is still some suggestion or reference there to a Registrar of Political of Parties, so

members can cancel that.

(Interjection) Prof. Yash Pal Ghai: A what?

Com. Maranga: A reference to a Registrar of Political Parties, so members can cancel that.

In fact, if you have noticed, if you look at the second bullet on page 29, it actually provides for de-registration by means of an

action before the High Court. So let us look at the German situation and let us see what is wrong with that. What are we

proposing?

Com. Hassan: This is more difficult for the Electoral Commission to de-register a political party.

Prof. Yash Pal Ghai: It is more difficult, but I thought this point was that we give them enough safeguards.

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Com. Hassan: Yes, but I thought the safeguard was that it would be right for the Judiciary…….

(Interjection) Prof. Yash Pal Ghai: …… (inaudible)

Com. Hassan: Because I can’t imagine, after the Commission spending so much money trying to file proceedings in the High

Court just to de-register a political party, it is obviously a breach of so many provisions.

Com. Zein: Thank you Chair. I would be much more happier with this formulation, because, if you look at the Germany

context, this was put there for a number of reasons. But much more, apart from securing the rights of citizens, is that, if you

have stringent regulation for registration, and a party fulfills all those, and then to take away a right, should be much more

difficult. Particularly, taking away a right of not one person, but a collective group of citizens, and when that right is taken away,

it means it is distinguishing or extinguishing of an institution, and the premise that, that institution would have had roots and a

certain orientation of doing things, would also mean that, a certain part of a life of the people of the nation dies, and I think the

safeguard is very important.

Prof. Yash Pal Ghai: Any other view about the issue? Yes Bishop.

Com. Bishop Njoroge: I think there is a problem here. If we give the Electoral Commission the right of registering political

parties, it should also have the right to de-register, if the political party goes against those basic principles that it has set.

But what I understood is, a political party can also challenge that de-registration in High Court. If the Commission has a right,

then let the political party which has been de-registered go and seek intervention of the High Court. But to ask the Electoral

Commission to go to the High Court and seek de-registration, I don’t think it is proper. I think it is the other way round.

Prof. Yash Pal Ghai: Lenaola?

Com. Lenaola: Chairman, I understand what my friend Zein is saying, but if you look at, I think we said initially that when the

Electoral Commission has the powers to register political parties, the parties that are not registered have a right to appeal to the

High Court.

And we are also saying, therefore, when the Electoral Commission de-registers a party, let the party be the one to go to the

High Court to say that the de-registration is incorrect, but the Electoral Commission to go to the High Court to move injuction,

let me de-register this political party. I think it is consistency of procedure, if we follow the initial procedure.

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(Interjection) Prof. Yash Pal Ghai: Follow what?

Com. Lenaola: Follow the same procedure that it is the party that is aggrieved that goes to court, but not the party that is

moving injunction, not the Electoral Commision to move injunction.

Prof. Yash Pal Ghai: Okay. Yes.

Com. Kangu: Mr. Chairman, if I go back to the example of Germany which Com. Zein has given, in Germany, they specify

even the grounds on which you can go to the Constitutional Court to seek that a party should be declared unconstitutional. I

will be inviting members to assist us in setting out the grounds. But again, they also specify which institutions in the country, it is

not anybody who can go to the Constitutional Court to have a party declared unconstitutional. They specify the institutions that

have a right to go to the Constitutional Court, I think, I don’t know whether it is the…….. (inaudible), they specify.

Now, if we say that the Electoral Commission should have a right to register parties and also a right to de-register parties, we

are getting into a problem, because what will happen is that, you come for registration, we reject your application, you go to the

High Court on appeal. The High Court says, you should be registered, you are sent to me, I register you, and I have the power

to de-register you. I can register you today and tomorrow move, and say, we are de-registering you, and that is going to be a

problem.

(Interjections from the floor)

Com. Kangu: No, let me finish, I have the floor. So that is why we are saying, whereas they have a right to register parties

and the involved parties have a right to appeal to the High Court, the Electoral Commission must not have a right to de-register

political parties, it can only move the High Court if it thinks a party deserves to be de-registered.

Com. Hassan: Let me add something….. I am sorry John, but I have a lot of difficulty in accepting you argument. Usually, I

have no problem understanding you, and accepting your positions, but this one, I think you are wrong, absolutely wrong. I

think because you have shifted to the left.(laughter) But I think, let us consider our Kenyan situation to the Germany situation.

For us in Kenya, we have established a system of Judicial Review of all administrative actions or actions taken by public

bodies.

Again number two, and that the grounds of review are well set out in Judicial Review Law, you know it is upto finish with the

Constitution.

(Inaudible interjection by a Commissioner)

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Com. Hassan: No, no, don’t worry about that. That is why today we are in court also. The ground on which a person may

seek a Judicial review are well known, you don’t have to list them in the Constitution or even an Act of Parliament. It states

clearly on that. Now, my question is that, you should not, Mr. Convenor, try to set rules with the current Electoral Commission

in mind, with the current High Court in mind, because, you people are very optimistic, and you are still in a mental trap, that you

are making a new Constitution and putting new rules. Why aren’t you thinking of what is the Electoral Commission? When you

refer to them as the Electoral Commission, you think of what it is or what people have said about it? And when you talk of the

High Court, you talk of one problem associated with the High Court.

I think we should think forward and be a little bit optimistic as I had said. We are thinking of creating an independent Electoral

Commission, which as you have said will not be capricious enough to register you today or refuse to register you, and then

when you go to the High Court and get an order, they again register you the following day. I mean we are expecting that the

kind of Commission we are going to establish will not be one which will be so low so as to do that.

So I think the issue of asking the registering body to get approval to do what they should be doing is extremely unfortunate. I

think, the fact that bodies are given to register and to de-register, it is not a new concept. The Registrar of Companies, he

registers companies today and if a company violates the Company Act, he de-registers them, and it is a process. If the

aggrieved goes to court, there is an established jurisprudence. Why do you want to …… (inaudible) some matters today?

Com. Prof. Okoth-Ogendo: Mr. Chairman, I must say that Com. Hassan’s arguments comment themselves to me. I am

unable to agree with my noble and learned friend John Kangu. First of all, it is in my view, quite logical that a party can be

registered today, and tomorrow, new facts may come to light that cause it to be de-registered for violation of the criteria, that

they have now done something, which, had it been known by the time they got registration, they would never have been

registered in the first place. So, that is a discretion we cannot take away.

The other issue, Mr. Chairman, is that when we vest power in a regulatory authority, we must be very careful not burden it with

responsibility beyond that which they need to do the job we have given them. For example, it is not for the Commission,

however described, or the Registrar, however described, to go to court and say, I now have facts that allow me to de-register

this person. It is for the Registrar or Commission or wherever, to satisfy themselves on the interpretation of the law, that, that

person has violated the law. Then, it is the burden of that person to go to court, otherwise the Registrar will never do anything

else. He will spend the rest of his life going to ask the court for permission to do what we have already told him in law to do.

Thank you.

Com. Bishop Njoroge: I am not going to take a lot of time. I just want also to take a position which Hassan has taken, and

that we already have a jurisprudence to that effect. And, I would like to remind….(end of side A) it is not a must that we

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might go all the way, the Chairman does not tie us, that we should take everything. For instance, has Dr. Muigai has said, it

would tie the Electoral Commission through busy bodies, just to spend all his time at accord.

And therefore, I would recommend that the Electoral Commission registers and de-registers. Let the party go to seek

intervention of the High Court. And, consensus have emerged. (laughter)

Com. Maranga: Mr. Chairman, what members are forgetting, when the ECK is going to register and de-register, they are

forgetting what functions the ECK is performing, and what functions the political parties are supposed to perform. There is a

clear conflict of interest. Mr. Chairman, ECK can de-register a party today, and for a week, and will be able to knock out that

party for any nomination process, and that is just around the corner when the elections are taking place.

Mr. Chairman, that will be a dangerous ground. That is a sure way of rigging elections, because, you are going to de-register a

political party, next week, you have a nomination process for elections. What are you supposed to do? If you can register a

party today, and tomorrow you can easily de-register because you have the power to do so.

Mr. Chairman, I do not agree with that provision for very good reasons that we have a history in this country, where people can

even de-register political parties in the eve of elections. So, and you can also disorganise a political party, you can disorganise

the following of that political party, denying people the right to vote. You are giving them in one way, and denying them in the

other way. So, Mr. Chairman, I disagree with that method.

Prof. Yash Pal Ghai: Thank you. Zein, and then Okoth, and then, let us see if we have a clearer view on this issue.

Com. Zein: Thank you Chair. In this particular case, I would also like to say that I do not have the happy occasion of sharing

many views which I find reasonable with Com. Ahmed. In fact, I would like you to state the symbolism which you use is more

applicable to him and others like him who have debated this point. That they are the ones who have become hostage of

tradition. They say, the only justification there is, is that, it is the jurisprudence of this country that it is done that way and don’t

bring the Germany example here. I think that is not a good way to deal with this matter. I think we need to isolate two and

distinguish two phases. The first phase is when a political party applies to be registered, and it is given twelve months to comply

with registration conditions. Now, within those twelve months, if it is satisfies the registration conditions, then the Electoral

Commission has the discretion of registering or refusing to register if it is estimation that this party has not fulfilled those

conditions. No one wants to take away that discretion from the Electoral Commission, and I think people mix that with the

other view.

The other view is this, that you had a party which has been practicing, which is been getting into elections for say 4 or 5 years,

and then, for whatever reason, the Electoral Commission is being given discretion to de-register such an existing party. This

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second condition is a much more higher condition than the first, because, the political party will be already in existence, and it

may even have Members of Parliament based in that party, and if the Electoral Commission is going to say it will have the

discretion of de-registering, it can put in jeopardy the tenure of some of the people who were sponsored by that party. And in

this context, the Electoral Commission will act both as a complainant and as a Judge. So it will move the complaint to itself and

say, according to the conditions, we are appealing this political party has done a,b,c,d,e,f,g and then at the same time, put on

another paper and say, found guilty, de-register. And this is the condition we are now saying. Do not put these two discretions

in the same hand of one authority, unless we want to create the tyranny of an Electoral Commission.

Prof. Yash Pal Ghai: Thank you.

Com. Hussein: The preceding page, page No. 28. There is a procedure including warning to the party. That you are in

breach of the following code of conduct or some Constitution or the Constitution of Kenya, there is a warning period prior to

de-registration. So, it is not that one morning thing that I wake up and say, you are now de-registered. There is a procedure

before de-registration.

Therefore if a party feels that there is money for ….. (inaudible) on the part of the Electoral Commission, you can move to the

High Court even prior to stop it from doing that. So, I think there is a procedure before, and it can then be tightened up.

Prof. Yash Pal Ghai: Okoth?

Com. Prof. Okoth-Ogendo: Mr. Chairman, I am worried about the regulatory gate-keeping mode which this discussion has

taken. For one, we are defining political parties as instruments for democracy, not just instruments for elections. So I am

wondering why we are asking the Electoral Commission to perform this function rather than somebody else.

Number two, I am wondering why we even want to register and de-register. We want to keep the gate, there are many

jurisdictions with which you don’t need to register a political party. Where the so called Registrar is a record-keeper. He is not

the person who decides whether or not she should exist or cease to exist, because, we are in the public domain.

Number three, if political parties are important beyond elections, they are therefore strengthening of the democratic process.

Then, any person who thinks that a political party is subverting the democratic process, ought to go to court, and ask for the

de-registration of the party, not any particular fellow called the Registrar. And therefore, I would want us to free ourselves from

what is very colonial. Registration is a form of control rather than a facilitation, and separate political parties from its historic

society that may be to be controlled. We are dealing with an instrument of democracy, we are not dealing with a private

society.

Prof. Yash Pal Ghai: Thank you for the views. We have had two hours of discussion, I am not going to open up the

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fundamental principle. I too don’t see a consensus, but I see a very substantial majority for giving the Electoral Commission the

power to de-register and Judicial Review routine to the court. I am sorry we haven’t had absolute consensus, I do see a very

strong majority for the……

Can we move on then to the right to own a political party?

Com. Nunow: I think we should be clear at what level the elections, I presume all ….. (inaudible) so that we are not…

Prof. Yash Pal Ghai: Is that the case here?

Com. Nunow: Yes.

Prof. Yash Pal Ghai: I hope it is just.

Com. Nunow: It is good we …. (inaudible) if the way it is now, it is like a party requires to field a candidate or candidates, not

necessarily successfully. And any ….. (inaudible) of a party can do that, so, are we saying, that if a party has had no

successful….

Prof. Yash Pal Ghai: …… (inaudible)

Com. Nunow: So, fielding a councilor in one ward is sufficient enough to remain in operation.

Prof. Yash Pal Ghai: I get your idea, but you must mention the particular party, because one problem we have, there are so

many parties on the register who don’t really have any active role and…..

Com. Kangu: Mr. Chairman, the question Dr. Nunow is raising, is valid, because it goes to, we have two ways we can use.

We can distinguish elections, because we have Presidential elections, we have Parliamentary elections and we have Civic

elections. Now, the way we have formulated, we have just said elections, so, it is not clear which elections we mean.

And then two, we have the question of …..

(inaudible talks by Commissioners)

Com. Kangu: Mr. Chairman, I was saying the second issue on this is, Dr. Nunow is saying, a party will go and field some

candidates in some obscure council, a candidate who cannot win, and it will say, well, we fielded one candidate, so we should

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pay in the fee. So, we must decide, do we want to say, they must have fielded and won some seats or do we want to say, field

candidates in Parliamentary elections, but not necessarily civic.

But if we say Parliamentary elections, supposing a party has not been able to field candidates in Parliamentary elections, but it

has been fielding candidates in civic elections, and in fact, even winning this. How do you go about that? So, we need to come

out clearly on the issue.

Prof. Yash Pal Ghai: Any suggestions?

Com. Muigai: Mr. Chairman, I think that goes back to how we can save political parties. If they are as ……. (inaudible), it

is suggested tools of democracy. Then even if they field one councilor, they are still in business. But if, as tools of elections,

and that is limiting our perception of them, then we can de-register them because they have fielded or they have not won. I

would go for the former. Political parties are democratic tools, and so long as they are playing in the game, whether they win or

not, let them stay.

Com. Lethome: Mr. Chairman I would like to agree with Salome still, because here there is a mischief that maybe your group

wanted to address, and the mischief is to take care of parties that just sit down, they are registered, they don’t do anything, they

are busy bodies, a group of busy bodies waiting to be sold. And I think that mischief is taken care of whether you field one

candidate at whatever level. So, I think we leave it as it is. The mischief will have been adequately taken care of. Thank you.

Com. Zein: Chair, I would like to suggest that the current formulation does not adequately address the problem which they

have identified. The history of this country shows that, you won’t have a problem of people participating in elections. These

parties suddenly wake up from their deep slumber during elections and then go back to sleep after elections. So the problem

will not be, will they be able to field or not, they will get enough people to field. I think the problem will be, how do you make

active after elections.

Prof. Yash Pal Ghai: That the general consensus is that we delete this bullet point? John, you want to say something?

Com. Lethome: The first mischief is not taking part in the general election have been taken care of by that bullet. But that

mischief that has now been introduced by Zein, we knew it has been there, but you have reminded him. We need to address

that mischief. Maybe now we need to formulate another bullet to take care of that mischief. How do we make sure that

parties are active, whether we have elections or not?

Can I suggest?

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Prof. Yash Pal Ghai: Yes.

Com. Lethome: Maybe, let me hear other people then……(laughter)

Prof. Yash Pal Ghai: Charles?

Com. Maranga: Mr. Chairman, this is what I will continue saying. Your opening remarks on political parties, you said very

clearly that you want to include the democracy or democracy in this country, and you are saying people have a right to form

political parties, people have a right to freedom of association. The way they associate and operate, is not supposed again to

be limited. Mr. Chairman, I think, even political parties as fulfilled all the criteria and has been registered, we should not have

again another clause, trying to de-register the same after somebody undertaking those tough conditions and achieving them.

Mr. Chairman, there will be many reasons why a political party does not want to go to an election. For one, a political party

might be performing other functions like civic education. A political party is not supposed only to be there for an election. So, I

think Mr. Chairman, it is unfair for that clause to be there. My only proposal is that, that clause should be deleted, because,

Mr. Chairman…..

(Interjection) Prof. Yash Pal Ghai: We know your point now, so….(laughter)

Com. Maranga: Let me qualify my point.

Prof. Yash Pal Ghai: Okay.

Com. Maranga: So, my strong point on this is that, this is not consistent with the criteria you said for political parties.

Prof. Yash Pal Ghai: Hassan, Nancy and then John.

Com. Hassan: Mr. Chairman, unless those that own political parties, which are somewhere and we want to save them, I

think there is no need why there is this undue notion not to register these political parties. If there is no other measure, what

better measure is there, to see or to engage how much a political party is interested in the development of a people or a country,

much more than being interested in the election. This is a very important …. (inaudible) where, the same development work

they are going to do, is going to be determined the kind of government which is going to come out of that election, the civic

elections, Parliamentary, Presidential, all determined in the development they are going to do. So, that is a very big measure of

knowing whether a political party really is involved in development.

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So, I don’t think there is any harm in retaining this de-registration by means of not…… because, it will form part of the other

many conditions which we present out, either by legislation or through this Constitution on how a political party will be

de-registered. Under …… (inaudible), they will still have the right to go for Judicial review, and it appears that there are those

who do not really understand what decisions will be envisaged and then you fail to support our position, that the way a party

feels that they are being de-registered, they will still their right to go to a court of law to get usually review for that Constitution.

So, I think Mr. Chairman, we should retain this one. We are really taking a lot of time on something which is very obvious.

Prof. Yash Pal Ghai: I have some other names. Nancy and John and then let us see the end.

Com. Baraza: Mr. Chairman, I think we shouldn’t belabour the point. We should retain this proposal. I think it will be

compliance with whatever else we are suggesting about political parties. We should retain that.

Prof. Yash Pal Ghai: John.

Com. Kangu: Mr. Chairman, when I introduced this paper, I noticed that the approach of our committee was to recognize

that political parties provide an avenue through which citizens can exercise their right to assemble. But, I warned at that stage

that our approach is not to limit ourselves to the right aspect as the only role of political parties. We instead said, we must

identify other roles and functions that political parties play, before we can place them in the governance scheme properly.

And in our definition and functions, we came out clearly saying that, these are important institutions that play a role in the

governance scheme, and therefore, they cannot be strictly approached from the right’s best perspective, they should also

treated as important institutions which must be well structured in the Constitution. So, attempt to have them regulated and

subjected to certain conditions are attempts that are stemming from the position that we want them to play that function for

which they are supposed to exist, to assist in democratizing, constitutionalizing, and if possible, republicanising governance.

And parties that are there, and are not contributing to the objectives of political parties, must not therefore be allowed, simply

because, they are an avenue for people to exercise their rights of assembly. The people can find other ways of assembling, and

in fact, political parties are not the only way through which you can exercise the right of assembly. If it were the only way, I

would be able to say, you cannot restrict their activities or in any way. But there are as many others, you can assemble through

religious organizations, you can assemble in a night club, you can assemble through or underway, political parties are only but

one way,………..

Prof. Yash Pal Ghai: It just seem to me that there is a consensus. Can we move on quickly, because we really have more

ground to cover today. The right to join a political party. Zein.

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Com. Zein: Thank you Chair. I think the bulletin which says, no one can be compelled to join a political party is a good

bulletin, but I would like to draw the attention of the Commission to the last bulletin. I would suggest that we delete the word ‘

full’ and ‘voting’, and we leave only ‘citizens can become members of a party’. I think “full’ and ‘voting’, draws a distinction

under which a foreigner or others can become some form of a member of a party, but I would like to restrict that to, only

citizens may become members of a party.

Prof. Yash Pal Ghai: Riunga Raiji and then Githu.

Com. Raiji: Chair, it is not my intention to curtail debate, but I think on 9.2.4, appears to me to be a statement of matters that

I think are generally agreed, and unless perhaps we feel very strongly, I was going to move that, unless someone has an

objection to any of those ones, then we move to the next one.

Prof. Yash Pal Ghai: Well, there is one objection already. So let us deal with that. Should we delete ‘full’ and ‘voting’?

Coms.: Yes.

Prof. Yash Pal Ghai: General consensus, okay. Thank you. Yes, I hope so.

Com. Githu: I can understand why everyone should be free to join a political party, and no one should be compelled, but

then, I have a problem here of understanding, whether a person can be denied a right to join a political party.

Prof. Yash Pal Ghai: Githu, ……… (inaudible) expecting him to come back to the…..

Com. Githu: That is the point I was coming back to. My feeling is that, the party should be given the right to decide, to vote

but also to address…… (inaudible). Otherwise, a political party, (I hope Sir I have the floor), a political party is a voluntary

association. Nobody can be compelled to belong to it although it has been tried several times in our history.

The contrast of that in my judgement, is that the political party must reserve to right to admit only those persons who comply

with its own internal criteria, provided however, it does not use a known Constitutional ground. And for example, it would

appear to me, that a party cannot refuse a person to join because he is not a European for example. Or cannot refuse a person

to join on religious ground because he is not a Hindu, or Christian or a Muslim, and so on.

But a party may have its own manifesto which may require, for example, if there is a party called the Socialist Party of Kenya,

which I think there should be, it may require those who of us who wish to join to subscribe to the tenures of mercisism and

lemnism, and it is not a non-reasonable requirement……

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(inaudible comment by a Commissioner from the floor)

Com. Githu: Okay. And I think it is not a non-reasonable requirement because that is what defines the essence of the party.

I think at that point Mr. Chairman, which is the only point I wanted to make, is well made out.

Com. Kangu: Mr. Chairman, we have talked in terms of a leadership code. We are talking about a code of conduct. And

in other places we have said, a person may be barred from voting because of certain breaches. Now, while we should allow

someone who has committed such a serious wrong as not to be allowed to vote, to go and participate in matters of a party is

wrong. But that is one side of it.

On the other hand, look at the history we are coming from. We are saying, we want to instill a certain quality of behaviour,

certain values in the Kenyan people, and the past we come from shows us that, today, someone will be in this party, he is

thrown out for one reason or another, or the whole country knows this is a thief, and the next thing you are hearing he has been

accommodated in another party, possibly because he can bring money. We cannot allow this to happen in our country.

(laughter) We must come out clearly, we are saying political parties are very important vehicles in the governance structure,

and if we are going to demand certain standards in governance, we should not allow people we cannot allow to participate in

governance in domain, to have an opportunity to participate in political parties which are the vehicles that produce those who

govern.

So, this rule should remain, and in fact we need to expand it by identifying more ground on which people should not be allowed

to participate in parties. The rule, the one that Com. Lethome raised, that people should not be deferred from belonging to

political parties. They must be, there are some people we should not allow. People are now……

(Interjection) Prof. Yash Pal Ghai: Let me see if I can list it ……………. (inaudible). The question I heard was not that a

person shouldn’t be free to join parties except, in fact that, why should one apply to join a party. The question is, should a

party be able to say no to an applicant on the grounds that, it is as if doesn’t strive to the social objectives of the party, etc, that

is the question we are discussing.

Com. Kangu: Mr. Chairman what I am saying is this, parties should be free to accept people, but the Constitution should be

able to state, point out, certain people who cannot be accepted even if the party wanted to accept them. (laughter) If we say,

Githu is not allowed to join any party, even if he was my friend and he comes to my party, I should be able to say, my friend,

the Constitution says no.

Prof. Yash Pal Ghai: What I would like to hear, what would be in the Constitutional grounds, because we are talking about

the Constitution. John please, clarify, through you sir. Clarify for us, what Constitutional grounds can be used to deny a man or

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a woman membership to a party.

Before you answer that, let us have the remaining speakers, because they are probably speaking to this. Lenaola, Zein, Kabira

and then back to John.

Com. Lenaola: My understanding Mr. Chairman is that, the bully is about conviction for electoral flow, and de-deferment of

a member, is that the person is a member of a party, he commits some electoral fraud, and therefore, we are saying, for the

period that he has been barred ……

Prof. Yash Pal Ghai: Can we deal…. and then we will come back to that.

Com. Lenaola: Okay. Thank you.

Com. Zein: I am thinking Chair, I would like bulletin one to remain the way it is. It says, everyone is free to join a political

party. I don’t think the formulation of that phrase put an obligation on a party to take somebody. If it had been formulated in

say, a version like, everyone has a right to join the party of their choice, then that puts an obligation on that party to accept this

person. And I agree entirely with Com. Githu Muigai that a political party should have discretion, either or ideology, on beliefs,

for example, if you have an environmental party, they would have the right to reject a person who owns a company which

degrades the party. But, I am saying, that the formulation in one does not put any obligation in any party to accept. So it

should be left like that, with the provision that we understand what Com. Githu Muigai is saying.

Prof. Yash Pal Ghai: ……. (inaudible) Githu to say that, there maybe Constitutional grounds prohibiting rejection. In other

words it should say, that is a woman, and we don’t like the men, they are not admitted, they should not take after

………………………. (inaudible) political parties now, and therefore the status. So, the question would be, what are these

Constitutional grounds on the basis of if you cannot kick a person out. Should we have bit of discussion on that? But anyway,

let us see what Prof. Kabira would want to say, then…..

Com. Kabira: Thank you Chair. I actually wanted to help John when he was asked to give ground for which somebody can

be rejected, but I wasn’t sure and I wanted to know something which is common practise. Should you belong to different

parties at the same time? Like we do. You have a card for DP and you have one for KANU, if you are nominated today,

tomorrow you produce the other card and go to KANU.

Now, Charles and Bishop have asked for the floor. Is it on this point or some other point?

Com. Maranga: That point.

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Prof. Yash Pal Ghai: That point, okay.

Com. Maranga: I think, if the Constitution says that so and so is not going to be allowed to join a political party, you will be

interfering with the Constitution with those respective political parties. I think that is a matter which should rest with the

respective political parties, rather than us regulating from the point of the Constitution. And that is the practise, and it should

remain so, and it should continue like that. We have the experience. Thank you.

Com. Bishop Njoroge: Mr. Chairman, I just wanted to let the Commissioners know, I applied to become a member of the

Socialist Political Party International, and I was rejected on the basis that I am religious. So, there was a requirement that I do

not subscribe to religion. I hope it will not be the same with us here, that a person can be rejected from a political party for

belonging to a certain religion. So, we should have Constitutional conditions.

(inaudible discussions by Commissioners)

Prof. Yash Pal Ghai: Well, that is if we have a consensus, we keep the first bullet on the sanctions that we are talking of that a

person may try to join a party, no one can be prevented from joining a party by its state or something.

We also accept that a political party may reject a person on grounds, we don’t need to specify the ground, we can put it in

different way by saying, a party may not reject an application on this Constitutional ground. It should be in the equality

provision and the Bill of Rights that we have adopted, in other words on ground of age, sex and place of origin, things like that,

because these bodies do have a Constitution provision and need to respect those provisions.

We didn’t say the common man can be compelled to join a party, to that I think, we can just agree now, because a party can’t

be forced to…..(end of tape) wants to take somebody, that person’s views… then the question that Com. Lenaola was trying

to raise, now I ask him to do that.

Com. Lenaola: Thank you Mr. Chairman, I am sorry I jumped the….

Prof. Yash Pal Ghai: No, it is fine.

Com. Lenaola: On bullet No. 3, on one hand we are saying at page 27, that one of the conditions for a party to be

registered, is that it cannot expel any member from the party except for good reason, and after a few processes. And here we

are saying that the Constitution should pose on the party obligation to defer a member after completion of electoral fraud. Why

don’t we allow the party also, to internalize this mechanism for discipline and not leave it to the Constitution?

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Prof. Yash Pal Ghai: Can you re-formulate that.

Com. Lenaola: In fact my idea is that, we leave it totally, we just delete this point and leave it, a party is to have internal

mechanisms for discipline of members for whatever ground.

Prof. Yash Pal Ghai: Raiji?

Com. Raiji: I am persuaded by the argument by Com. Lenaola on the following basis. A party will decide the kind of people

it wants to attract to itself, and that will be the basis of other parties to criticize and challenge it, if people of dubious character

want to associate themselves, so be it, let it be for the electorate to decide whether or not they will subscribe to those values.

So we delete the whole thing altogether.

Prof. Yash Pal Ghai: Let John have the floor and then Githu you will have the floor.

Com. Kangu: Mr. Chairman, we cannot say in one brief that we are setting standards. And then in another brief we are

saying, political parties are free to take anybody, that they will be sorted in the market place of elections and politics in the field.

This is how we are going to develop, we should not create room for dubious people to seek, to get into government. We must

close the door tightly. (laughter) Dubious people, people on whom we have doubts must not be…. this is why people jump

up and down, because they know, even if you don’t accept me here, I will get nomination elsewhere or I will jump somewhere.

If we want to state leadership standards, we must start in the political parties, and we must not allow some of these people in

parties. These are the people….

(inaudible discussions by Commissioners)

Com. Githu: Mr. Chairman, my friend John Kangu is getting evangelical now (laughter). I want to suggest that, something

we have agreed upon for the whole week. We want to have values in the Constitution that Sheikh Lethome would call

cross-cutting. If we have that value in respect of participation in elections, it should be a value that we can also defend in

respect of a whole range of other democratic activities.

To my mind, Mr. Chairman, a political party is a juridical person as well, is it not? It is to enjoy vis-à-vis other persons’ rights.

If we say that an individual has rights, a political party must have rights. I am uncomfortable with the situation where we say, a

political party cannot reject a person. Even if the grounds of rejecting that person do not violate any Constitutionally protected

criteria, it would be absurd, which takes me to the next point Mr. Chairman.

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What John Kangu is suggesting also is unacceptable. That we can have in our country, individuals who are barred from public

life because parties are under Constitutional obligations, never to accept them, because it is alleged by John Kangu, they are

undesirable. I think we must leave each party to judge on its own platform. There are parties that say, we are the party of

renewal, anybody ever convicted of corruption, anybody who was part of the old regime, we don’t want him in our party. But

there are other parties that say, come into our party and bring your money so that we can win political power. We must allow

those people, I am afraid, they would disagree with this, there is a market place of ideas. We must assume the Kenyan people

have the good sense to make moral judgements. It cannot be for the Constitution to substitute its view of who is good for that

of the Kenyan people.

Prof. Yash Pal Ghai: Thank you.

Com. Maranga: To the Chairman, there is no way you can give people fundamental rights and other rights in a Constitution,

and then you want to take them away on the other side.

Mr. Chairman, political parties are organs, I think they are like a market place, anybody can join, a thief, a fraud-star, or

anybody, because the point is very clear, if you clear them from political parties, they have a right to stand as independent

candidates, what will you do? So, there is no way, unless John Kangu is telling me to eliminate all the thieves and everybody

else from this country, it is not going to work. So, Mr. Chairman, the point we are arriving at is very simple, it is not possible

for us to put a Constitutional provision that political parties should not accept so and so or should accept this and that. I think

let the political parties decide for themselves. If they want to be a political party of thieves, so be it, if they want to be a political

party of whatever, so be it, and you as John, who is clear from thieving, then you can say, I am not joining that party. Thank

you. (laughter)

Com. Zein: Thank you Chair. My convenor, Dr. Githu Muigai is eloquent on his ex-position of market places, but is very

poor in his skills of reading people’s minds. On this particular issue, I entirely agree with him, but for different reasons, I think

on previous pages, we are establishing principles of new process in the party, which somebody has to go through before they

are penalized.

But more importantly, for the reasons which Dr. Githu gave yesterday, in terms of what is the measure of punishment of

collection offences we want to exercise.

And two, that is there a place for rehabilitation. And I am very sad that on this particular question, I will disagree with my

brother John and say, that we should leave room for rehabilitation so that a person can go and exercise their political beliefs and

persuasion, and if he can influence others to vote for the calls they have, although their own voting is limited by their acts under

the Constitution, so be it.

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Prof. Yash Pal Ghai: Let me put it this way. I think there is very substantial support for deleting this bullet point, and so, if

there are people who support the retention, they should indicate that, but if they are saying this point should be deleted, then,

they don’t need to speak. This one, bullet point 3.

Com. Kangu: But the issue I raised here which was addressed eloquently by Githu is, should parties be allowed to reject and

accept. I think that is what I raised. Mr. Chairman, bullet 3 does not address that issue.

Prof. Yash Pal Ghai: Yaah, but we have already summarized the sense of the house, and I said that a party can’t be

compelled to accept any applicant, but that a party cannot deny membership on Constitutional political grounds. That has been

accepted.

Com. Hassan: Mr. Chairman, for the ………… (inaudible), I am in the unhappy position of having to agree with Dr. Muigai,

for a young turk who has been considered to be politically and economically conservative which alarms me. But, I think this

particular bullet must go with the following reasons.

Prof. Yash Pal Ghai: That you don’t need to speak.

Com. Hassan: I wanted to add that, assume that the only function of political parties is elections, because a person can still

participate in a political party, without necessarily having to go to vote.

Yaah, my point was that there is a consensus to delete it. So, only those were supporting its retention should speak. Dr.

Nunow.

Dr. Nunow: Mr. Chairman, I would like to draw the attention of the Commissioners to 9.2.8,

(Interjection) Prof. Yash Pal Ghai: Sorry!

Dr. Nunow: Which clearly answers this.

(Interjection) Prof. Yash Pal Ghai: Okay.

Dr. Nunow: Internal disciplining, the Constitution should require public to ensure discipline, consistent with democracy, justice

and the rule of law.

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(Interjection) Prof. Yash Pal Ghai: This is why I am suggesting we delete and move on.

Com. Wambua: But Mr. Chairman, now that this has been introduced by Dr. Nunow, you are talking of somebody who is

already a member who can be disciplined.

Com. Zein: I think the issue we have been addressing is a person who is seeking to be a member.

(Interjection) Prof. Yash Pal Ghai: No, no. We have dealt with that.

Com. Zein: Okay, then that is fine.

Prof. Yash Pal Ghai: Now, on point No. 9.2.5, let us move fast, because it is 6.15 p.m. and we have to go through financial

controls. It seems to be very straight forward, but undoubtedly, some of you may have problems with one or more aspects of

it.

9.2.5, no, I am saying that we still have to discuss the whole question of financial control. So, I am urging you to try to move

with some speed.

Com. Hassan: This is of course the national, if you are talking of the national votes cast, I think 3% of votes cast is a little bit

low, maybe you could take it up to 5%, I think 5% is even better. Otherwise everything else I think it is okay, we should

approve it. Although again the question will come whether the financing will be before or after they get votes cast, because…..

In the question of the chicken and the egg, which one comes first?

(inaudible debate by Commissioners)

Prof. Yash Pal Ghai: Some systems allow refund if you can achieve – Mr. Gicheru is an expert on this question, do feel free

to intervene if you have a point you want to make.

Mr. Gicheru: Mr. Chairman, maybe it might be of interest to know that last year, there was a series of consultations among

Members of Parliament, there was an inter-party group which considered this question of funding of political parties, and they

came up with a formula, for instance, how much money should be allocated by the State towards political parties, and it was

agreed that the allocation should be 1% of the national budget, and then this would be confined to only Parliamentary parties.

That is, parties which had representatives in Parliament and which had managed to get 5% of the total votes cast in the previous

general elections. So there are those two conditions. A party now becomes a qualifying party.

How is this money distributed? It is distributed in two ways. First, on the principle of equity. This means that 60% of that 1%

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of the national budget will be distributed equally among the Parliamentary parties. The other half, will be distributed according

to the principle of proportionality, that is, according to the number of votes secured by the Parliamentary political parties

concerned. So that is the formula concerning the funding of political parties by the State and how it is supposed to be

distributed. Maybe it is important to note that point at this stage.

Prof. Yash Pal Ghai: Thank you.

Mr. Gicheru: What happened is that, while negotiations were going on, I was requested to draft a Bill, that is even before

permission was obtained from the National Assembly to introduce the Bill. So we had a very provisional Bill which I have here.

Now, not long ago, the National Assembly granted permission through the members concerned that Musikari Kombo to go

ahead and introduce the Bill. So, that is the position at the moment.

Prof. Yash Pal Ghai: Okay, so Asiyo and Raiji, Nunow.

Com. Hon. Asiyo: Thank you Mr. Chairman. Mr. Chairman, I was just wondering whether we could introduce some

incentive here, for political parties who nominate women? I wanted to know, this is being done in Senegal and other African

countries, and I believe, this will encourage political parties to nominate more women to Parliament.

Prof. Yash Pal Ghai: Raiji?

Com. Raiji: Respect your Chair. I think this is one area where we must out of our way to put some kind of a ceiling or a cap,

because, I see this is another area of a possible conflict of interest between the MPs themselves and the rest of the Republic,

because it is a matter that relates indirectly to their welfare, and one of their parties, and I hope although, in principle we don’t

like to write details. Perhaps, I am thinking Chair that, I can see abuse coming in, probably you can see not exceeding, I don’t

know like 1% of the national budget is a lot of money, and I really think that probably, we need to intervene if the Bill has not

gone through, so that, at least we can set a limit and the rest we can work.

Prof. Yash Pal Ghai: But it will have gone through, we can over-right that by putting a limit in the Constitution.

Com. Raiji: That will be beautiful.

Prof. Yash Pal Ghai: Salome?

Com. Muigai: Thank you Mr. Chairman. I want to agree with what Hon. Asiyo has said, but also take it a step further and

say that, when counting the MPs, if we could give an extra point to the women MPs so that we can encourage the parties to

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nurture women into becoming Members of Parliament who can actually win seats.

Prof. Yash Pal Ghai: Sorry, I didn’t get your point.

Com. Muigai: Mr. Chairman, I am looking at the second part of the 60% of the money that is going to be given according to

votes. I was looking at a way, taking up what Mrs. Phoebe Asiyo said. A way that we can give an extra mark or affirmative

action to parties that have got women Members of Parliament, so as to ensure that parties don’t just nominate women to get the

money, but they also nurture the women so that they can be able to win and sit in Parliament.

Com. Nunow: I don’t whether my Chairman we could comment on all the points. Mr. Chairman, the second bullet, corporate

bodies whether foreign or national, should be prohibited from donating funds from other sources to parties. I am not sure

whether this is really useful to enhance the political parties, because, it is as if there are a lot of corporate bodies or companies

and organizations which are also very much involved in the development of the country, and they would want to be involved in

the elections by supporting parties which they think support their goals or their views. And I think, apart from setting certain

registration as to how the participants are…. how much money this can be, the limit for example, especially from foreign

companies, I don’t think we should really prohibit corporate bodies in Kenya from helping political parties in elections.

And the last bullet, a formula similar to that for new parties should apply to independent candidates. This is a very tight area.

Independent candidates, Mr. Chairman, unless we are going to form them into a group again at the national level, because each

of them have come from different constituencies or from different parts of the country. They have stood on independent as

Presidential, Parliamentary or Civic. Now, how are you going to now make them into a group and give them a certain amount

of money as expense refund? I think, either we completely abolish and we should not say, there should be no funding for

independent candidates. In fact that will be even better, because, I think it is going to involve a….. it is a form of restricting

abuse of independent candidates.

Prof. Yash Pal Ghai: Yes, for independent candidates will only get ………. (inaudible) support if they win the elections. You

are even opposed to that? The proposal here is that independent should only get money if they win elections. You are

opposed to ……

Com. Hassan: Unless they were Presidential candidates, and if he wins the elections, then he is already the President of the

country. But if it is a Parliamentary candidate, he has only gotten his votes from his constituency, unless you are talking at a

ratio of 5% of the votes cast nationwide. But it is an MP who got maybe 61% or 60% of the votes in his constituency, that will

come to very small as a percentage of the national votes cast. It will even be lower that the ratio but far much lower. So, I don

’t know how you are now going to give him money on the basis of the votes he received.

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Prof. Yash Pal Ghai: Okay, yes, thank you.

Com. Zein: I am saying, for the Presidential candidate it will be different. A Presidential candidate might get the 5% in order

to qualify to be President. And I believe that if a Presidential candidate who is independent gets the 5%, should get the money

to popularize the policies, on the platform under which he has run on the ticket.

Prof. Yash Pal Ghai: Dr. Nunow.

Com Nunow: Thank you Mr. Chairman. I think I would like to start by saying that, I tend to agree with principles laid down

here, except that a few clarifications will do. For instance, currently, people do not vote for parties, but they vote for

nationalities. As it is now, you hardly see people voting for manifestos or principles as much as that is what my good friend Dr.

Muigai could want us to believe. But, that being the case, are we envisaging a situation where, in addition, there will be a

column or a ballot cast for a political party of choice. That is one.

Then, in the absence of that, the basis of computation now, how are votes computed? Maybe Mr. Gicheru would clarify that,

on what they have already computed. Non-Presidential parties, the parties that have no Presidential candidates in the elections,

were the votes cast for its Members of Parliament of candidates for Parliamentary and civic added together, presumably then,

being the votes that I imagine were intended for the party or what were the modalities by which these figures were arrived at.

And then the restriction of corporate bodies, that is the second main bullet, after state funding, I think we need to make

distinction. We need to say, in my opinion, it is probably important to understand the principle behind it, and if I may read the

author’s mind, probably the intention was to avoid a situation where the candidates are run from abroad by foreigners through

funding. I think if that is the case, then, there are corporate bodies owned by Kenyans, either fully or majority. So, shouldn’t

we then set up distinction clearly, that Kenya owns corporate bodies, and should be exempted from this kind of thing, because,

they should be able to promote the manifesto that they think are in the interest of the public, and that are likely to differ the

economic activities and the economy at large. Thank you Chair.

Prof. Yash Pal Ghai: It seems that we have…. I think we generally have consensus on the desirability of sub-state funding.

We have agreed that parties to receive ………….. (inaudible) have to secure at least 5% of the votes cast. We perhaps have

less consensus on the question of corporate funding, whether foreign or national, it seems to be some support for lying domestic

corporations, where you could find that, to contribute but not for foreign corporations.

I think we should be… nobody else supported the restriction which is in the rules, but I think we have to remember that in many

countries, where corporate bodies have such a massive interest on the electoral reserve. Maybe we need to be a bit careful.

Perhaps the compromise might be to restrict the national and contribution a corporation can make and require that contributions

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should be disclosed.

Com. Kangu: To one point raised by Dr. Nunow, which I don’t want to escape our ….

Prof. Yash Pal Ghai: Yes, I was coming to that, but go ahead.

Com. Kangu: I was saying that Com. Nunow has raised a point of, when we say a party that has got 5% votes, how do we

determine that vote? And I think this is linked to the MMP system we decided on yesterday. Even when we say MMP

system, I think we needed to come out clearly that the ballot paper will have two slots. You are voting for an individual and

then you also make a decision which party you are voting for. So that, you could elect the MP for a constituency from one

party, but when it comes to a party of preference, you vote for a different party. I think the current situation that has caused a

lot of fights in our countries, that parties want to go on the basis of which party has how many MPs in the house, and I think that

is a wrong way to go about it.

So we say, when we will be.. if we approve MMP or if it goes through, it is the vote of the MMP that will determine the

percentage for funding, and not the number of MPs a party has in the house.

Prof. Yash Pal Ghai: I think that is right.

Com. Prof. Okoth Ogendo: Mr. Chairman. The two are obviously inter-alike. If you are going to elections and people

know that you are voting an MP and depending on the total number of votes received by the party represented by all those

MPs, there will be additional allocation.

The ……. (inaudible) you are reinforcing, both the individual and the party, and you may not mean to have two separate

functions, because people will know that, the more MPs of a particular party that I support which we vote in, the possibility that

they are going to get more MPs on MMP. So I think there are self-reinforcement.

Prof. Yash Pal Ghai: Yes. Mrs. Asiyo?

Com. Hon. Asiyo: ………. (inaudible) corporate bodies whether foreign or national, to some of who pollute or just destroy

our environment. If you were to allow them to contribute to political parties, they would vie this government and hold this

country hostage. I think, then they should be vetted before they are allowed to manage, that we allow them to give to political

parties.

There is something we could say, despite the amount of money that corporations can give domestic and then have a disclosure,

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and as a principle, and then, deal with that is a legislation. However there is 1.2 to deal with – that is Mr. …….. (inaudible)

proposal that, supported by Salome that, parties which either nominate no men or no women, which should get an incentive or

bonus point, ……… (inaudible) Senegal, but as a matter of principle are we supporting it? Yes John.

Com. Kangu: Mr. Chairman, I don’t think we should say parties which nominate. Because then, they will go and nominate

women where they know they cannot win. Let us say, parties that bring more women to Parliament can get more.

Prof. Yash Pal Ghai: Yes, sorry.

Mr. Gicheru: I think you asked about how the 5% is calculated? Okay, according to the formula agreed by the

Parliamentarians. It is 5% of the aggregate of the votes variably cast for the parties that participated in the last Parliamentary

and Presidential elections, whether or not they elections for President was held, otherwise, than in a general election. So you

are taking into consideration the total number of votes cast for both Parliamentary and Presidential elections.

There was another point concerning the donations. According to the proposal here, donations can be accepted from an

individual registered in an electoral register, registered under the Companies Act or incorporated within the East African

Community, which carries own business in Kenya, also a registered party, forcefully as a trade union registered under the Trade

Unions’ Act, then any other unincorporated association of 2 or more persons, which carries one business or other activities

wholly or mainly in Kenya, and whose main office is there, that is in Kenya. Or any international organization of which Kenya is

a member.

Thank you very much. I think we should keep in mind this one of course, regulations or proposals by a party and they have an

interest in accumulating the resources, we may have this in perspective on it.

But I think we have broadly agreed now on this. I would like to at least finish this before we adjourn. So can we just go on to

9.2.7. 9.2.8 we have also agreed, is that right? 9.2.9 seems…….

(inaudible debate by the Commissioners)

Prof. Yash Pal Ghai: No, Githu has the floor, please, let him speak.

Com. Githu: Mr. Chairman, the question in bullet three, which is, Cabinet Ministers shall be appointed from outside

Parliament. I think that is an issue we could pend because……

(Interjection) Prof. Yash Pal Ghai: It is coming up in the systems of government.

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Com. Githu: Yaah, it will come up later, but other than that, I have no other comment there.

Prof. Yash Pal Ghai: Thank you. So I take that as approved. Defections, I think we have already had a discussion on this,

and, I think we had agreed on that. Political parties is basically, what we are doing, we are only just setting out the

principles…..

Com. Kangu: …… (inaudible)

Prof. Yash Pal Ghai: Okay. Well thank you very much.

(inaudible comment by a Commissioner)

Prof. Yash Pal Ghai: Yes, indeed and…. Thank you. (clapping) I would like some guidance on what we do now. I had

hoped myself that we would have gone to at least financial control today, I know I put Dr. Nunow a lot of pressure to get this

paper out on the expectation that we would be able to discuss it today. But I realize it is late and numbers are …. (inaudible),

but we also have tomorrow to start dealing with systems of government. We still have quite a number of papers to go through.

So I was wondering what your suggestions are about whether we can meet later today or that we meet at 8.00 a.m. (sharp)

tomorrow. I also would like to discuss with you whether you think we could not necessarily have a rest-day on Saturday, but

don’t have a formal meeting, but we meet on Sunday and probably some committee work we can do on Saturday, but there is

some work to be done on Saturday, but if you want to work on Saturday, we could discuss that, but I wanted some guidance

so that we can organize… we all hope for that by the end of the weekend, we will have gone through every single paper and

make recommendations so that the draft persons can proceed, and the editors can proceed with finalizing the reports of the

committees.

Nancy?

Com. Baraza: Mr. Chairman, this, we should all appreciate are unusual circumstances under which we should work and we

are foregoing our Sunday and our brothers and sisters can forego their Saturday, and we shall beg for forgiveness from the

Lord. I think these are very unusual circumstances and we must appreciate.

Prof. Yash Pal Ghai: Please wait your turn. Raiji.

Com. Raiji: Thank you Chair. Two things. First, I think we need to appreciate the patience of the Commissioners who are

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already for the whole day, it is a very good sign. Secondly, Chair, I think, with regard to Saturdays and Sundays which are

days of obligation for Christians, different sects, I think we all understand the urgency and the circumstances under which we

are to work. We respect people’s religious rights. I propose that we schedule a meeting, and those who feel that on account

of religion, they may not be prepared to work on those days, then perhaps we will excuse them, but I think we should not place

an obligation on those who are prepared to forego their rest day in order to accomplish this task.

Secondly the other point, Chair, is that, I think more could be done in speeding up the process of our deliberations and maybe if

we could do that, and one way I see, maybe we could give those who are presenting the papers a fixed period the way we

were doing the hearings, say 10 minutes to introduce the paper, and then we go say, recommendations page by page, perhaps

those who have certain things who object to isolate those ones and discuss them so that we can move a little faster. But really, I

think I agree that if we have to finish this task, even in the next four weeks, we certainly will need to work under very unusual

circumstances or hours including nights. I for one would probably even think that working at night will be a preferable

alternative. Thank you.

Prof. Yash Pal Ghai: Lenaola?

Com. Lenaola: Thank you Mr. Chairman. I understand of course the sensitivity in which we have dealt with matters before.

In fact we have discussed questions on Saturday, about six times to my re-collection. Let us understand what it means to be

S.D.A. especially. I think they have made the point very many times before. A compromise would be, that we sit in

committees on Saturdays, but definitely sit probably formerly on Sunday afternoon, and also try and work late on the days to

come. Obviously, the way we went yesterday and today, and the papers which are remaining, we cannot finish even if we try

tomorrow, we cannot finish work by tomorrow. So let us be realistic.

And two, I think we need to manage our time better like we have the last three days. So, that really is what I had.

Prof. Yash Pal Ghai: Thank you. Let us have Githu and then we continue round so we go this side of the table.

Com. Githu: Mr. Chairman, this is an extremely sensitive matter, yet, because the nation has entrusted us with even more

sensitive matters, we must have the courage to confront it as Lumumba would remind us, fairly and to the best interest of all

persons. I cannot possibly agree with Isaac Lenaola when he says, we cannot work on Saturday, because we have three or

four S.D.A. members, but we can work on Sunday when we have another seven or eight or ten or twelve who would like

Sunday off, and we can work on Friday although we have our Muslim brothers and sisters and so on.

We have been reminding ourselves the whole day that we want a principle that applies in every situation, not a principle that is

isolated. The right that we want to protect is for the conscientious believer not to be compelled to work. If I don’t come on

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Sunday, Sir, I hope nobody will come to my room to bring me here. But I cannot possibly suggest to all of you, if you have a

quorum, that you should not proceed. I reserving my right when I come on Monday, to raise any issue that I feel I would have

raised had I been present.

Prof. Yash Pal Ghai: Perhaps they could raise it in written form before since all the papers have been distributed or will be

distributed by tomorrow. Anyway, let us go down this way. Yes please.

Com. Hon. Asiyo: Mr. Chairman I agree with Dr. Githu, that we should go ahead and meet. For me I will not be available on

Saturday, but the whole day Sunday, even Saturday night, I will be available to work.

Com. Hassan: Mr. Chairman, I was going to suggest also that, I think in view of how we are going, I don’t think we also want

to compromise the quality of the work we are doing. You have reminded us several times that ……(end of side A) and even if

we have to work at night, and I agree with Com. Raiji, that we may consider the possibility of coming back after dinner from

maybe eight o’clock, and being up until 10.00 p.m. or 11.00 p.m. That is one possibility we could think of, especially now that

most of the reports from all the Thematic Taskforces are all about to come out, and we have gone through them or we are still

going through them, and we must need a lot of time now to read them at night because we are really going through them.

But, for the S.D.A. colleagues, we understand they have very strong position on this, and I know the fact that they are being

allowed to stay away, it is not usually very useful because, they will have made better contribution when they are present the

time when the report is being discussed. That is for a fact, that, even if they come back later the following day and make their

comments, it will be as good as it would have been when the thing was being discussed. But I think in this particular situation,

we have an emergency to deal with, I think they should be able to understand the situation under which we are operating. But it

is good since we have been able to compromise and say, we only break from twelve and come back at two o’clock, and I

think we have been able to maintain that.

But I think also for the Catholics and the other Protestants, they should also be able to compromise and agree that on Sunday,

the church service ends at ten or eleven. We should come back after lunch and simply do the work.

Com. Zein: Mr. Chairman I think I would like to agree with colleagues who have spoken, and of course, you know how I

take the issues pertaining to Religion. We sympathize with our brothers and sisters from the S.D.A., but, where I come from,

we say, “talking in venacular”. Because of necessity, something that is prohibited is allowed to the extent of that necessity. It

is because of necessity that we are compromising maybe Religion and other issues. So, I would really appeal to our S.D.A.

brothers, that for this one weekend, at least we give it because of the emergency that we are facing or the urgency of the work.

Com. Maranga: Mr. Chairman, that position will not be compromised, and I want to put it here, we are also part of the

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Commission, the decisions which are made on these reports, we need to participate. There is no way we are going to exclude

anybody from this report writing. One of the issues which is before court, is simply the same thing. That some Commissioners

have been excluded. Let us not add a problem on top of another one.

Mr. Chairman, on that basis, we should not, also, say that we are going to meet at night. There are Commissioners who don’t

stay here. Not everybody who stays here…

(Interjection) Prof. Yash Pal Ghai: That is through choice. Everybody, reason for coming here, we could work through the

night.

Com. Maranga: Mr. Chairman, I am just suggesting. If we are meeting over the weekend, then let it not be a Plenary. Let

it be committee meetings, where there are no substantive decisions, but we are taking decisions over the weekend, Mr.

Chairman that will be unacceptable.

Com. Prof. Okoth-Ogendo: First of all Mr. Chairman, let me make the point I have made before. The essence of religious

freedom is that you cannot be compelled to do anything that is against your Religion. It is not that you can use your Religion to

compel other work not to work, that is the first point.

The second point I want to make Mr. Chairman, on Monday, when we came here, we passed a document called “Procedure

Rules for Decision-Making at Commission Meetings”. Rule 4e says, “weekend meetings, night working sessions and meeting

during break maybe held at the discretion of the Commission”. So, that is a position this Commission has already taken, that

we can have weekend meetings, and we are competent around this table to decide whether or not we are going to have meeting

this weekend.

(inaudible discussions by Commissioners)

Prof. Yash Pal Ghai: Pastor has the floor, and then I think Kangu.

Com. Pr. Ayonga: Mr. Chairman, I had thought earlier that we had resolved about this matter. But it keeps on coming from

time to time, and I am not trying to preach to anybody. I think we should respect the faith, the beliefs of other people. I

remember for the first time, hearings at Garissa, where the Muslims told us that you have come here during a wrong day, and

next time, don’t try to come here. I loved that I respected what they said. There is nothing here to sympathize with S.D.A.

believers, there is nothing to sympathize about. It is faith, you can go ahead do what you want to do, and we are not going to

evangelise for someone to say, this is a national day, and yet we say in our Preamble, “in God, we trust”. We are contradicting

ourselves.

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I think, I am becoming a little bit suspicious, in that, this matter was never resolved, but I would pray, that those of you who

want to meet during the weekend, go ahead, do so, but not at the expense of the S.D.A., and please, let none of you

sympathize. It is faith, it is believe and nothing can change my belief. Thank you.

Prof. Yash Pal Ghai: Kangu? Charles please, don’t…..

Com. Kangu: Mr. Chairman, I will sympathize even though….(laughter) because sympathy is not asked for, it just comes

out. I want to grant those sympathies, and wish I could help, but I think, we need to find a way to put in more work and at the

same time, respect the faith of our brothers. My mother brought me up in church, Christian faith, and I grew up to learn that in

fact Christians ….. (inaudible) is a very understanding. That is how I grew up to know God, understanding God. I am sure we

can understand the position of our brothers. I am pleading with you kindly, come on Saturday, let us work.

Prof. Yash Pal Ghai: Dr. Nunow you had your hand up?

Com. Nunow: Mr. Chairman, I think, matters of religion are quite sensitive. My major concern is, we need and people to

emphasize in the whole process, we need a situation of consensus believe, so that no stage in the process, do we have people

being left behind, unless they deliberately choose to do so.

Secondly, we need that consensus for expeditious work (finalization process). In my opinion, if we have this consensus during

the debate of the national report materials, we will have it much faster at the Draft Bill level, because, it will be extraction of the

main report, and people will have exhaustively debated. That is the first thing.

Secondly, the S.D.A. adherers are in the minority in the Commission. They are four members, and that is in itself an additional

element to look it. It is important that we do the work, no doubt about it, and I would at this point suggest that, we designate

upto ten o’clock in the evening as working time, so that we make up. It is too easily, because that way, you have made up

almost for the day. We shouldn’t focus on this particular day. Let us meet after dinner – 8.30 p.m., sit up to 11.00 p.m. for

today, and see how much we can catch up, based on the other times left, rather than antagonize anyone of us. Except for

Fridays, Muslims break from say 12.00 p.m., from 12.00 p.m. to 3.00 p.m. Those three hours are sufficient for their

obligations. Saturday is a prayers’ day for the S.D.A.s, and they stay, and they have continue to stay the whole day. Sunday is

prayers’ for the other Christians, and they usually need morning sessions only. So, why couldn’t a formal Plenary of the

Commission work Sunday afternoon? Have committees and Thematic Taskforces to finalize their work on Saturday, as they

deem fit, and let us meet late evenings of today and tomorrow, and we will have gone far. That would be my suggestion and a

compromise position.

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Com. Wambua: I think Mr. Chairman, I wouldn’t say more. That is a compromise. We are allowing the Muslims to pray on

Friday, we are allowing S.D.A.s to pray on Saturday, we are other Christians to pray on Sunday, we are not leaving anybody

behind. That is a compromise situation, let us save time by working in the evening, let us save time by coming here at 8.00

p.m., like some of us have done the whole period we have been here, instead of starting at 9.30 p.m. Just compromise and

work as hard as we should.

Prof. Yash Pal Ghai: Kabira?

Com. Kabira: I think I tend to agree with the compromise position, but, probably, ask that today will not be possible because

other people don’t know. The ones who are not here, who have gone. They don’t know we are meeting to-night. So,

maybe, there isn’t enough notice. But we can do it tomorrow and the other days and the whole of next week.

Prof. Yash Pal Ghai: Sunday night is okay?

(inaudible discussions by Commissioners)

Com. Raiji: I stand to be corrected by I think, even the S.D.A.s on Saturday evening, they will be released from the

obligation.

(inaudible discussions by Commissioners)

Prof. Yash Pal Ghai: Okay, we cannot go to-night, but we can go tomorrow night, we can work on Saturday night.

(inaudible discussions by Commissioners)

Prof. Yash Pal Ghai: Sorry, Salome you have the floor. Listen to her.

Com. Muigai: Mr. Chairman, the Sabbath starts tomorrow at sunset, Pastor Ayonga, when does the Sabbath start?

Tomorrow at sunset?

Com. Pr. Ayonga: After sunset.

Com. Muigai: After sunset. So, we cannot work tomorrow night. However, it ends at sunset on Saturday. So, we can

meet after 7.00 p.m. on Saturday night, we can meet the following Sunday and work at night.

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(inaudible discussions by Commissioners)

Com. Muigai: Ooh, sorry. So we can pray on Sunday morning until what time, 11.00 p.m. So we can meet at 2.00 p.m.

on Sunday and work until 10.00 p.m. and then that is that. Every other day we will sit at 8.00 p.m. on Monday and work till

10.00 p.m.

(inaudible discussions by Commissioners)

Prof. Yash Pal Ghai: Commissioners, I want to announce that we shall meet tomorrow at 8.00 p.m. (sharp), we will start our

day with reports from Dr. Nunow’s committee. I think we have the paper on “Financial Controls”, we have on “Natural

Resources”, we have on “Science and Technology”, we have “Intellectual Property”. I don’t know when your last paper will

come.

Response: We will circulate it tomorrow.

Prof. Yash Pal Ghai: Tomorrow? It is all in one folder. Then I suggest we definitely finish the presentation from that

committee tomorrow, working diligently in the way it was suggested. Look at the papers, they will be with you for at least

twenty four hours, underline any points you will certainly raise and raise them, otherwise we will assume, unless you raise an

issue that you expect. I would like to start before the end of tomorrow, with one of the papers from the committee on “Systems

of Government”, maybe the one on “Devolution” and we will probably adjourn at 6.00 p.m. or whatever is the hour that the

Sabbath begins. Is it 6.00 p.m. Pastor, or?

Com. Pr. Ayonga: 6.00 p.m.

Prof. Yash Pal Ghai: Ooh 6.00 p.m. okay. So we will adjourn at 6.00 p.m. on Friday, then we will meet at 6.00 p.m. on

Saturday and continue with the papers from the committee on “Systems of Government”. Then we will meet on Sunday at …..

Saturday we will go on till 10.00 p.m. (6.00 p.m. – 10.00 p.m.), and then we will meet at Plenary on Sunday at 2.00 p.m.

(inaudible discussions by Commissioners)

Prof. Yash Pal Ghai: That is right. That is why I am saying on Saturday we will meet at 6.00 p.m., gone on till 10.00 p.m.

On Sunday, we meet at 2.00 p.m. and go on to 10.00 p.m., and by that time, we trust we shall have been through every single

paper. And the committees which have yet to release the papers, please take time to finalize the draft and let us circulate

everything tomorrow.

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I thank you very much for your patience and thank you for very interesting set of debates today, we wish you a calm evening

and enjoyable dinner.

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