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8/9/2019 Kenyas Proposed Draft Constituiton 2010
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HANDBOOKfor Civic Education
Proposed Constitution of Kenya
Committee of Experts
on Constitutional Review
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HANDBOOKfor Civic Education
Proposed Constitution of Kenya
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Consultants
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Contents
Acknowledgement 4
Foreword 7
The Committee o f Experts (CoE) 8
Compa rative Matrix betweenthe Current Constitution a ndthe Prop osed Constitution 10
Dep uty Direc tors 13
Part One
Background Information 15
The purpo se of the Hand bo ok 16
Some Basics 18
What is a Co nstitution? 18
What Kind of C onstitution have Kenya ns
be en loo king for? 19
Provisions of the Prop osConstitution
Citizenship
Land
The Bill of Rights
Elec tions
Politic a l Pa rties
Arms of Government
The Exec utive
The Judic iary
Funding for Nationa l Gove
Devolved Governments
Co mm issions and
Indep endent Offices
Lea dership and Integrity
Part Three
Moving Forward
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Acknowledgement
This Handbook on Civic Education on the proposed constitution is the h
effort. It has definitely taken quite some burning of midnight oil, thoug
current look and tone of this Handbook is indeed a fine mosaic of valu
am therefore confident that the content herein, will speak to all Kenyans, and in
Proposed Constitution ahead of the referendum.
For a great job done within record time, I wish to thank the Committee of Expe
Members Bobby Mkangi, Dr. Chaloka Beyani, Abdirashid Abdullahi and Prof.
for both setting the tempo of this document, and finding time to moderate the c
Without the leadership and dedication of CoEs Deputy Director in charge of C
Mobilization and Outreach department (CMO), Veronica Nduva; Programme
and all the CMO staff, this effort would not have borne such fruit. I applaud the
offered by the legal drafters, Gad Awuonda, Peter Musyimi and Gicheru Ndoria
technical soundness and clarity of the document. Special gratitude goes to Mau
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I am also indebted to the development partners and the Government Ministrie
walked with the CoE and ultimately made it possible for the production of thi
In particular, I am thankful to the Coordination Liaison Office team, under th
Amb. Nana Effah-Apenteng, through which the various development partners
the UNDP-Kenya basket fund the Ministry of Justice, for their invaluable con
Thank you CoE members of staff, for without your dedicated efforts in your v
this Handbook would not have seen the light of day.
A constitution is only made once in a lifetime! Through this Handbook, I urgeparticipate with knowledge, in the making of their Constitution.
Katiba Mpya, Kenya Moja!
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KatibaMpya,
KenyaMoja
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When the Committee of Experts (CoE) was tasked to unlock the p
ultimately pave way for a new constitution, its mandate by exten
bequeathing Kenyans a long-drawn dream. It is therefore incum
Kenyan to take note of the spirit and letter espoused in the Proposed Consti
To appreciate the shift from old to new and acknowledge the adjustments toKenyans have hoped for over the years, it is necessary to make a quick comp
the current and the proposed law. Whereas in the current Constitution sover
the Republic, thus limiting the rights of individuals, in the proposed law, sov
the people. The benefits of this shift guarantee that Kenyans will enjoy a wi
once the new law becomes effective.
The structures of governance in the Proposed Constitution will take power c
and involve them in determining the course of their destiny whilst providing
as well as better checks and balances in the conduct of public affairs. In ad
of property, and the right to prosper and benefit from ones efforts has been
Foreword
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Committee of Experts (CoE)
The Committee of Experts on
Constitutional Review is an
independent body established under
the Constitution of Kenya ReviewAct 2008.
The CoE comprises eleven members
nominated by Parliament and
appointed by the President.
1
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The mem bers a re:
1. Nzam ba Kitonga
(Chairperson)
2. Atsango Chesoni
(Vic e Cha irperson)
3. Prof. Fred rick
Ssempebwa
4. Otiende Amollo
5. Dr. Cha loka Beyani
6. Hon. Njok i Ndung u
7. Bobby Mkangi
8. Abdirashid
Abdullahi
9. Prof. Christina
7
The CoE manda te
8
11
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C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE WComp ara tive Ma trix between
The c urrent Constitution and the Proposed Constitution
PreambleNational Values, Princi
Basics: Settingbasis and
reason for theConstitution
Sovereignty is placed on theRepublic.Limited Rights
Sovereignty belongs to the Expanded Bill of Rights incluand group rights
Ownership/Membership/IndividualRights/Obligations
Nil
ISSUE THE CURRENT CONSTITUTION THE PROPOSED CONST
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K A TI B A M PY A , K EN Y A M O J A HComp ara tive Ma trix between
The c urrent Constitution and the Proposed Constitution
Clear leade
Governme
A strong na
Roles betw
Two chamb
An indepenCourt
President a
Presidentia
Checks andCabinet limfrom outsid
Independe
Recall of M
No leadership code
Centralized structure of
GovernmentAll powerful presidency
No clear separation of powers
Role of Parliament is weak
No independent candidates
No Supreme Court
No recall of MPs
ISSUE THE CURRENT CONSTITUTION THE PROPOSE
GoverningStructures
Leadershipcode
NationalExecutive
Judiciary Parliament
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C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE WComp ara tive Ma trix between
The c urrent Constitution and the Proposed Constitution
Fair and equitable alloof resources
Public resources
Only trust land is recognized
Land is held and controlledcentrally
No safeguards onlandholding
Land is vested in the
Other land ownership categare provided.
Provision on the Land Comm
Land belongs to the people
Clear functions provided forPublic funding allowed for paIndependent Electoral and Bo
Inequitable distribution of
resources criteria
ISSUE THE CURRENT CONSTITUTION THE PROPOSED CONST
Land
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Deputy Directo
2
Right behind the 11 experts to whom
the work of evolving a new constitution
for Kenya rested have been four
Deputy Directors who have ensured
that the various functions assigned
The Dep uty Direc to rs a re:
1. Veronica Nduva
Civic Educa tion, Mobiliza tion& Outreac h
2. Peter Ayug iFina nc e & Administration
3. Dr. Michael Chelogoy
Resea rc h, Dra fting a ndTec hnica l Sup port
4. Vitalis MusebePublic Informa tion & Med ia
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K A TI B A M PY A , K EN Y A M O J A H
Part
Handbook as pa rt
of the ma ndate
The Purpose of
the Handbook
Understanding
some b asics
What is a Constitution?
Why are Constitutions
necessary?
What kind of Constitution
have Kenyans been
look ing for?
Background In
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C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE WC M M I TTE O F EX PER TS O N C O N STI TU TIO N A L R EV I E W
The Purpose o f the Handbook
C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE W
P
rimarily, this handbook is intended to highlight the ground-break
in the Proposed Constitution. At the same time, this document ca
the point of departure that foregrounds the spirit and focus of th
Constitution, compared to the current one. The Proposed Constitution i
towards the welfare of the citizen.
Specifically, the purpose of this handbook is to equip Kenyans with know
Proposed Constitution and enable them to make informed decisions as th
to vote in the forthcoming referendum. The document will be particularly
to civic education providers, opinion leaders, mobilizers and every Kenya
understanding the provisions contained in the Proposed Constitution and
it holds for the future of this country.
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K A TI B A M PY A , K EN Y A M O J A H
A constitution is a social contract.
and provides a framework for them to realise their dream
It binds members of a group togeth
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C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE W
Some Basic s
What is a Co nstitution?
Aconstitution is a general
understanding among members ofa group who have identified their
common interests/needs and how the interests
may be achieved. This understanding is
sometimes referred to as organizational rules.
Why are Constitutions Importa nt?
Constitutions are important because they:
establish government
and offices.
provide structures/of
trust for the people.
check authority/pow
rights.
guarantee checks on a
functions and roles.
ensure accountability
responsiveness.
enable individual effowealth.
ensure wealth is distri
promote individual w
The Proposed
Constitution
will create,
protect and set
rules to manage
institutions that
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K A TI B A M PY A , K EN Y A M O J A H
responsibilities of citizens.
independent structures that safeguard and guarantee
citizens rights and benefits.
equitable distribution of resources.
clear separation of roles and powers.
clear checks and balances on powerboth horizontally and vertically.
participation of citizens in the
overall governance and at
immediate levels.
provision for equalityand affirmative action
for the minorities and the
marginalized.
What Kind of Co nstitut
looking for?
From the views collected by
Review Commission (CKR
by the Committee of Expe
constitution that:
recognizes them, their v
safeguards and respects
promotes peoples invol
participation in governm
expands the Bill of Rigeconomic, and cultural
checks the powers of th
clearly allocates and sep
organs.The Proposed
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C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE W
provides for a devolved government.
provides for equitable distribution of resources and
opportunities.
contains affirmative action and prohibits all
discrimination.
A newconstit
will gua
my sec
freedomrights
aMpya
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K A TI B A M PY A , K EN Y A M O J A H
Attemp ted Changes
Due to the weaknesses listed, there have been various
attempts to change the constitution, since1998.
In 2005, a referendum was
which was voted against.
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C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE W
Weaknesses in the
Current Constitution
C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE W
Does noidentitybrings t
Does nogoals anare to p
Does norelationsthe Gove
Does noeconomi
Allows fmatters
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K A TI B A M PY A , K EN Y A M O J A H
Only one centralized Government.
An imperial presidency.
The President has unchecked powers toappoint.
A disproportional representation in theNational Assembly.
Cabinet seating both in Parliament andthe Executive.
No Supreme Court.
Does not provide for devolved
cbae
o
K A TI B A M PY A , K EN Y A M O J A H
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Unlike the old constitution, the proposed one has s
checks and guarantees individual rights
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K A TI B A M PY A , K EN Y A M O J A H
Part
The review proc ess
The foundation of theProposed Constitution
Framework for the
Proposed Constitution
Provisions of the
Proposed Constitution
CITIZENSHIP
LAND
THE BILL OF RIGHTS
ELECTIONS
POLITICAL PARTIES
ESTABLISHMENT OF PARLIAMENT
THE EXECUTIVE
THE JUDICIARY
The Proposed Co
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C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE W
The process leading to the Proposed Consti
of the national accord
started in December 2008 as one of
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K A TI B A M PY A , K EN Y A M O J A H
The Proposed Constitution
The Review Proc ess
The process leading to the Proposed Constitution
started in 2008, as one of the pillars of the national
accord to address long term reforms, hence the
Constitution of Kenya Review Act, 2008. The Act
established and placed responsibility on four organs of
the review process namely:
1. The Committee of Experts (CoE) on Constitutional
Review.
2. The Parliamentary Select Committee on
Constitutional Review (PSC).
The mandate of CoE has a
been outlined (see page 7). Tis mandated to deliberate a
consensus on contentious is
the basis of the recommend
of CoE. The PSC is also ta
with creating a bridge betw
National Assembly and the
CoE. The National Assemb
has the role of approving
the draft constitution with o
without amendments for on
submission to the AttorneyGeneral. The Reference G
is a facilitating player consi
of 30 persons, each represe
an interest group, with the
mandate to facilitate consu
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C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE W
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K A TI B A M PY A , K EN Y A M O J A H
Review Proc ess and Roadmap
160
3021
21
21
7
30
30
30
30
2
14 Puof
NotificaRefere
Referendum
Comm ittee to co
The AG to p ub lish the Dr
The National Assem bly to app
Then PSC to table the rep ort to the
PSC to reac h an agreement on the Drareview the same and resubm it to PSC
Committee to present Draft to PSC
Consideration of views of the p ublic and integ ra
the draft and the reportCom mittee to pub lish its report and Harmonized Draft Cpub lic views on the sam e
Consultations with Referenc e Group
Thematic consultations on c ontentious issues
Identification of c ontentious and issues ag reed upon
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C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE W
The Found ation o f the Proposed c onstitution
The basis of the Proposed Constitution is derived from
the objects of reviewing the current Kenyan
constitution. These includ provisions
that:
guarantee peace, national unity and
the integrity of the Republic of
Kenya.
establish a free and
democratic system of
government that guarantees
good governance,
constitutionalism, rule of
law, human rights, gender
equity and equality, and
affirmative action.
promote peoples parti
elections, exercise of pmanagement of public
respect ethnic and regi
ensure provision of ba
promote and facilitate
cooperation.
Based on the above object
founded on the following p
1. All sovereign power beKenya, exercisable at t
of government and on
Constitution.
2. The people may exerci
directly or through the
The ProposedConstitution
reassures me of
continued peace, an
K A TI B A M PY A K EN Y A M O J A H
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K A TI B A M PY A , K EN Y A M O J A H
4. Authority under this Constitution is delegated to the
National Executive, Parliament, the Judiciary anddevolved governments.
5. Every person has an obligation to respect, uphold
and defend the Constitution.
6. The constitution provides for national values and
principles of governance which include:
patriotism, national unity, sharing and devolution
of power, the rule of law, democracy and
participation of the people.
human dignity, equity, social justice, inclusiveness,
equality, human rights, non-discrimination and
protection of the marginalized.
good governance, integrity, transparency and
accountability; and sustainable development.
protection of fundamental freedoms and human
Framework of the Prop
Constitution
The Proposed Constitution
supreme law into two broa
First, it deals with defining
as a people, our sovereignty
citizenship, individual right
how the individuals are to r
to the governing institution
and have access to natural
resources.
Secondly, it deals with how
needs of Kenyans are fulfil
It lays down a leadership an
integrity code to enable pub
institutions to work in the
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Provisions of the Proposed Const
K A TI B A M PY A K EN Y A M O J A H
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K A TI B A M PY A , K EN Y A M O J A H
Citizenship
Land
The Bill of Rights
Elections
Political Parties
Establishment of Parliament
The Jud ic ia
Funding fo
Governme
Leadership
County Go
Commissio
Offic es
C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE W
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C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE W
As a Kenyancitizen by birth,
I will not lose mycitizenship if I
acquire citizenship
Citizenship
The Proposed Constitution recognizes the following categories of
1. By b irth
Applies to:
persons born of either Kenyan mother or father.
a child found in Kenya, who appears to be less than 8 years a
parentage.
restoration of citizenship on application by a Kenyan by birth
a Kenyan.
2. By Reg istra tion
Applies to:
K A TI B A M PY A , K EN Y A M O J A H
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K A TI B A M PY A , K EN Y A M O J A H
C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE W
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Land
All land in Kenya collectively belongs to the
people of Kenya as a nation, as communities
and as individuals. Land is classified as
public, community or private.
Ownership and /or use of land is based on the following
principles:
equitable access to land.
security of land rights.
sustainable and productive management of land
resources.
encouragement of com
disputes through recogninitiatives consistent wit
Pub lic land
Public land includes: land not set aside for an
land set aside for public
occupied by the State o
land transferred to the
reversion or surrender;
land to which no indivi
ownership is traceable
land which no heir can
K A TI B A M PY A , K EN Y A M O J A H
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all rivers, lakes and other water bodies.
the territorial sea, the exclusive economic zone andthe sea bed.
the continental shelf.
all land between the high and low water marks.
any other land declared to be public land byan Act of Parliament.
Comm unity land
Community land consists of:
land registered in the name of group
representatives.
land transferred to a specific
community.
any other land declared to be
land th
heldspec
com
or s
anc
trad
gath
held
gov
any
the
Any unregi
be held in t
on behalf o
it is held.
The Proposed
Constitution
C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE W
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Priva te land
Private land consists of:
registered land held by any person under
freehold tenure.
land held by any person under leasehold
tenure.
any other land declared private land under
an Act of Parliament.
Legisla tion on land
Parliament is mandated to make legislation to:
revise, consolidate and rationalise existing
land laws.
revise sectoral land use laws.
enact legislation to:
prescribe minimuacreages in respec
regulate the man
converted from o
regulate the reco
of matrimonial pthe matrimonial h
termination of m
protect, conserve
land.
enable the review
public land.
protect the depen
holding interests i
interests of spous
Because of anew constitution,
I can now dream
of owning land
privately without
K A TI B A M PY A , K EN Y A M O J A H
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C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE W
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The Bill of Rights
Rights belong to individuals and are not
granted by the State. Human rights are
entitlements that human beings have.
The purpose of recognising and protecting humanrights and fundamental freedoms is:
to preserve the dignity of individuals andcommunities.
to promote social justice.
to allow for the realisation of the potential of allhuman beings.
to show that it is the duty of the State and everyState organ and state officers (together sometimes referredto as duty bearers) to observe, respect, protect andpromote fundamental freedom and individual rights.
to ens re that e er indi id al in the societ is
Your rights in the Co nstitu
The right to life
The right to e qua lity
and to b e free from
discrimination.
Rights of the family
Huma n d ignity
The right to freed om and
sec urity of the p erson
Free dom from slave ry
The right to privac y
Rights to foo d , wa ter,health c are, ed uca tion,
housing a nd soc ial sec urity
There are a lso spec ial provision
Women
Y l
K A TI B A M PY A , K EN Y A M O J A H
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C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE W
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Elections
General elections are to be conducted every
five years on second Tuesday of August
for all the elective positions in the country.
elective positions are President, Deputy
President, MPs, Senators, governors and
members of county assemblies.
In order to participate in the elections a person has to
register as a voter.
To register as a voter, a person must:
be a citizen of 18 years or above.
be of sound mind.
allows independent candid
in elections. For one to quaindependent candidate, the
must not to be a member o
political party or must not h
a member of any party for
three months before the da
the election.
The boundaries for all the
electoral areas are to be
drawn by an Independen
Electoral and Boundari
Commission (IEBC). Th
commission is responsible f
the continuous registrat
of citizens as voters.
the regular revision of t
K A TI B A M PY A , K EN Y A M O J A H
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the settlement of electoral disputes other than
petitions. the registration of candidates for election.
voter education.
the facilitation of the observation, monitoring and
evaluation of elections.
the regulation of the amount of money that may be
spent by or on behalf of a candidate or party in any
election.
the development of a c
and parties contesting e monitoring compliance
supervising referenda a
body or office establishe
review the number, nam
constituencies at interva
C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE W
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Politica l Parties
The new Constitution allows political parties to be
formed so long as they:
have a national character.
have a democratically elected governing body.
promote and uphold national unity.
abide by the democratic practices through regular,
fair and free elections within the party.
respect the right of all persons to participate in
the political process, including minorities and
marginalised groups.
respect and promote human rights and fundamental
freedoms, gender equality and equity.
promote the rule of law.
engage in or encourage
of its members, supporperson.
establish or maintain a
similar organisations.
engage in bribery or ot
accept or use public res
or its candidates in elec
K A TI B A M PY A , K EN Y A M O J A H
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Arms of Government
Parliament
Parliament is established and consists of two Houses; the
National Assembly and the Senate.
Nationa l Assembly
Consists of:
two hundred and ninety members elected by the
registered voters of every constituency.
forty-seven women each elected by the registered
voters of the counties.
twelve members nominated by parliamentary
political parties according to their proportion of
members of the National Assembly, to represent
The National Assembly rep
at the constituencies and thinterests. Its functions are t
make national laws.
determine the allocatio
revenue.
approve funds for expen
national government.
exercise oversight over n
revenue and national ex
review the conduct in oexecutive.
approve declarations of
extensions of states of e
appove appointments m
C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE W
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A two chamber
The Sena te
Consists of:
forty-seven members each elected by the
registered voters of the counties.
sixteen women members nominated by
political parties according to their proportionof members of the Senate.
two members, one man and one woman,
representing the youth.
two members, one man and one woman,
representing persons with disabilities.
the Speaker, who shall be an ex
officio member.
The Senate:
participates in
the counties lev
determines the
revenue among
oversees nation
county governm
participates in
Parliament procee
are open to the pu
in English, Kiswah
quorum of ParliamNational Assembly
Senate.
K A TI B A M PY A , K EN Y A M O J A H
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The Exec utive
The national executive of the Republic
comprises the President, the Deputy President,
and the Cabinet.
The President:
is the Head of State and Government.
is the Commander-in-Chief of the Kenya Defence
Forces.
is the chairperson of the National Security Council.
nominates, with the approval of the National
Principal Secretari
High Commissionediplomatic and cons
chairs Cabinet meeting
directs and co-ordinate
of Ministries and goverdepartments.
receives foreign diplom
consular representatives
confers honours in the n
the people and the Rep
declares a state of emer
with the approval of
Parliament, may declare
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Before I cast my
Election of the President
The President is to be elected by registered voters in a
general election for a term of 5 years and, if re-elected,
can serve for another term of 5 years.
A person is qualified to be nominated as a
presidential candidate if she/he:
is a citizen by birth.
is qualified to stand for election as a member of
Parliament.
is nominated by a political party, or is anindependent candidate.
is nominated by not fewer than two
thousand voters from more than half
of the counties.
A candidate only wins a pr
receives:
more than half of all th
at least twenty-five per
more than half of the c
In case no candidate is
held within the next th
candidates. The result
candidate must be decl
has to be sworn in p
a Tuesday, 14 days a
If the President-elec
winner but b
Deputy Pres
acting Presid
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presidential election will be conducted within sixty
days.
When in office, the President cannot be sued but
Parliament can institute removal proceedings if
there are questions to do with the Presidents health,
violation of the countrys laws or gross misconduct.
Vac ancy in the offic e of President
When the office of President becomes vacant , the
Deputy President will assume office as President for
the remaining period.
Dep uty President
The Deputy President is the principal assistant of
the President and deputizes him/her. He/she is not
The Ca b inet
The Cabinet is appointed wiapproval of the National Asse
may be dismissed by the Pres
President chairs the Cabinet.
of:
the Deputy President;
the Attorney-General; an
not fewer than fourteen
and not more than twenty
two Cabinet Secretaries
(equivalent of CabinetMinisters). A Cabinet
Secretary cannot be a
Member of Parliament.
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Sec reta ry to the Ca b inet
There will be a Secretary to the Cabinet, whosefunctions will:
be in charge of the Cabinet office.
be responsible for arranging the business, and
keeping minutes of the Cabinet.
convey decisions of the Cabinet to the appropriate
persons or authorities.
have other functions as directed
by the Cabinet.
Princ ipa l Sec reta ries
These are the equivalent of the
current Permanent Secretaries.
They are in charge
Attorney-General
The Attorney General:
is the principal legal ad
represents the national
any other legal proceed
performs any other functhe land.
has authority to appear
any civil proceedings.
promotes, protects and
defends public interests
Direc to r of Pub lic Pros
The office of Director of P
t bli h d t l f
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institute and undertake criminal proceedings against any person before any
court of law.
take over and continue with any criminal proceedings commenced in any
court by any person or authority, with the permission of the person or
authority.
discontinue at any stage before judgment is delivered of any criminal
proceedings with the permission of the court.
a Mpya, K A TI B A M PY A , K EN Y A M O J A H
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The Jud ic ia ry
The Judiciary consists of
four levels of courts namely:
the Supreme Court, the Court
of Appeal, the High Court
and the subordinate courts.
It is headed by the Chief
Justice and a Deputy Chief
Justice. It has judges of thesuperior courts, magistrates,
other judicial officers and staff.
There is a Chief Registrar of
the Judiciary who is the chief
Suprem e Court
The Supreme Court consists of the ChPresident of the court, the Deputy Chie
function of the Supreme Court is to:
hear and determine disputes rela
President of the Republic.
hear and determine appeals from
other court or tribunal.
if required, give an advisory opi
county government.
The judges are appointed from recomm
expanded and independent Judicial Ser
Justice and the Deputy Chief Justice are
Assembly. Other than the Chief Justice,
retirement at the age of seventy years o
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Note:
Court of App ea l
The Court of Appeal consists of up to 12 judges, oneof whom is elected as the President of the Court by
the judges themselves. The Court of Appeal hears and
determines appeals from the High Court and any other
court or tribunal, as prescribed by an Act of Parliament.
High Court
The number of High Court judges is set by an Act of
Parliament. On appointment, the judges are to elect
from themselves, a Principal Judge of the High Court.
The High Court will deal with:
criminal and civil matters.
matters that relate to individual rights.
appeals from a decision of a tribunal.
any matter relating to th
between the levels of go
supervising the subordin
Subordinate courts
The subordinate courts are
the Magistrates courts.
the Kadhis courts.
the Courts Martial.
any other court or local
established by an Act of
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CHIEF JUSTICESUPREME COURT
COURT OF APPEAL
HIGH COURT SPECIAL COURTS
e.g. on land , labo ur, environment
Structure of the Judiciary
SUBORDINAT E COUR TS
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Fund ing for the Nationa l Government Parliament may authoto impose any other t
that are due to county
estimates and expend
Parliament.
Expend iture b efo re
The National Assemb
withdrawal of money
the total amount in th
the Consolidated Fun
appropriation process
Supp lem enta ry app
The national governm
has not been allocated
any purpose is insuffic
All money raised and received by or on
behalf of the national government will be
paid into a Consolidated Fund.
The ma in sourc es of na tiona l revenue a re:
income tax;
value-added tax;
customs duties and other duties on import and
export goods;
excise tax;
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Financ ia l c ontrol
Parliament will make a law that: provides for the establishment, functions and
responsibilities of the national Treasury.
ensures both expenditure control and transparency
in all governments and establish mechanisms to
ensure their implementation. enforces the keeping offinancial records and
auditing of accounts for securing efficient and
transparent fiscal management.
prescribes a framework within which policies
relating to procurement and asset disposal will beimplemented.
The accounting officer of a national public entity is
answerable to the National Assembly for its financial
management, and the accounting officer of a county
Controller of Budget
The Controller of Budget of the budgets of both the
governments. The control
all public funds.
Auditor-General
The Auditor-Generals offi
annual accounts of:
the national and count
all courts.
every Commission and
the Senate and the cou
political parties funded
the public debt.
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I cexpe
the umeanme baccooffic
Ce ntral Bank of Kenya
The Central Bank of Kenya will formulate monetary policy,promote price stability and issue currency.
The Central Bank of Kenya is independent in the exercise of
its functions.
National Security
National security means the protection against internal and
external threats to Kenyas territorial integrity and sovereignty,
its people, their rights, freedoms, property, peace, stability and
prosperity, and other national interests.
The national security organs are the:
Kenya Defence Forces
National Intelligence Service
S
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47 COUNTI EScounty assemblies
counexecu
NATIONAL GOVERNMENT
NATIONAL LEGISLATIONS/FUNDS/NATIONAL POLICIES/S
Execut ive Par l iament Judic iar
DEVOLV ED GOVERN MENTS
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The national government is in charge of:
National policy and standards.
Economic Planning.
Monetary policy.
Agricultural policy.
Veterinary policy.
Health policy.
Energy policy.
Tourism policy.
Education policy, standards,curricula, examinations and the
granting of university charters.
National statistics.
Labour standards.
Foreign Affairs, Immigration,
citizenship.
Nationa l Government
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Devolved Governments
The devolved system of government is created
with county governments.
Principles of devolved governments
The devolved government will:
promote democratic and accountable exercise of
power.
foster national unity by recognising diversity.
give powers of self-governance to the people and
enhance the participation of the people in the
exercise of the powers of the State.
promote social and eco
provision of services thr
ensure equitable sharin
resources throughout K
facilitate the decentralis
functions and services, f
enhance checks, balancpowers.
The Co unty Gove rnme
The Proposed Constitution
governments. This number
of administrative districts a
and Districts Act of 1992.
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1. Mombasa
2. Kwale
3. Kilifi
4. Tana Rive r
5. Lamu
6. Taita/ Tave ta
7. Garissa
8. Wajir
9. Mandera
13. Tharaka-Nithi
14. Embu
15. Kitui
16. Machakos
17. Makueni
18. Nyandarua
19. Nyeri
20. Kirinyaga
21. Muranga
25. Samburu
26. Trans Nzoia
27. Uasin Gishu
28. Elgeyo Marakwet
29. Nandi
30. Baringo
31. Laikipia
32. Nakuru
33. Narok
Counties
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ReadtheProposed
Constitutionand
JointheFuture
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The structure of county government includes:
County assemblies, county executive committees andcounty public service. The Proposed Constitution
also provides for the sources of funds for the county
governments.
The county governments oversee:
agriculture (crop and animal husbandry).
fisheries.
county health services.
cultural activities.
public entertainment and public amenities.
county transport.
implementation of spec
policies on natural reso
conservation.
county public works an
Boundaries of Counties
The boundaries of a countdrawn and may be altered
resolution:
recommended by an in
commission set up for t
by Parliament, and passed by:
the National Assem
least two thirds of a
Assembly; and
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population density and demographic trends.
physical and human infrastructure.
historical and cultural ties.
cost of administration.
views of the communities affected.
objects of devolution of government.
geographical features.
Co unty Assem b lies
A county assembly consists of:
1. members elected by the registered voters of the
wards in a general election.
2. the number of special seats necessary to ensure that
no more than two-thirds of the membership of the
assembly are of the same gender
The members in 2 and 3 ar
political parties in proporti
election in a particular cou
Func tions of County Ass
The functions include:
making laws for the eff
county government.
exercising oversight ove
committee.
receiving and approvin
managing and expl
and
developing and man
institutions
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Elig ib ility for elec tion to a Co unty Assem b ly
One is eligible if he/she:
is registered as a voter.
satisfies educational, moral and ethical requirements
prescribed by law.
is either:
nominated by a political party; or
an independent candidate supported by at
least five hundred registered voters in the Ward
concerned.
A person is disqualified from being elected a member of
a county assembly if the person:
is a State officer or other public officer.
has at any time within past five years held office
is an undischarged bank
is serving a sentence of months.
has been found in accor
misused or abused a Sta
County Exec utive C om m
The executive authority of
county executive committe
The committee consists of: the county governor an
governor; and
members appointed by
approval of the assemb
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The number of members of the committee should not
exceed:
one-third of the number of members of the county
assembly, if the assembly has less than thirty
members; or
ten, if the assembly has thirty or more
members.
The county governor and the deputy county
governor are the chief executive and deputy
chief executive of the county respectively.
Members of a county executive committeeare accountable to the county governor for
the performance of their functions and
exercise of their powers. If a vacancy
arises in the office of the county governor,
Func tions of c ou
are to:
implement coun
implement, wit
legislation to th
requires.
manage and co
county adminis
prepare propos
consideration b
provide the cou
regular reports county.
County Governo
GovernorNow I can look
for ard to b tt r
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Each candidate for election as county governor will
nominate a person as his/her running mate to be the
deputy governor.
Rem ova l of a C ounty Governor
A county governor may be removed from office on any
of the following grounds:
gross violation of this Constitution or any other law.
there are serious reasons for believing that the
county governor has committed a crime under
national or international law.
abuse of office or gross misconduct.
physical or mental incapacity to perform the
functions of office of county governor.
Staffing o f County Governments
appointing persons to h
and confirming appoin
exercising disciplinary c
persons holding or actin
County Funds/Revenue
The county governments sh
and will further receive a sh
nationally.
Counties have power to rai
property rates.
entertainment taxes.
charges for services.
any other authorised ta
Parliament.
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a half ( )% of annual national revenue as
Equalization Fund to marginalised areas only.
A county government may borrow funds with the
approval of its assembly and a guarantee from the
national government.
On the basis of the division of Revenue Bill passed by
Parliament, each county government will prepare and
adopt its own annual budget and appropriation Bill in
the form, and according to the procedure, prescribed in
an Act of Parliament.
Cities and Urban area s
National legislation shall provide for the governance and
management of the capital city, other cities and urban
areas.
Relationship Between
Governments
Government at either level
perform its functions inassist, support and cons
implement the legislatio
government.
liaise with the other gov
exchanging information
administration, and enh
co-operate in the perfor
may also set up joint co
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Meanwhile:
both governments will make every effort to settledisputes, by means of procedures provided under
national legislation.
invoke national legislation to provide procedures
for settling inter-governmental disputes by
alternative dispute resolution mechanisms, including
negotiation, mediation and arbitration.
pursue similar functions placed before both
governments and perform them separately
consider a function not assigned by this Constitution
or national legislation to a county as a nationalgovernment function or power.
bear in mind that a function of government at one
level may be transferred to a government at another
level by agreement between the governments.
function or exercise
and
the function will rem
transferring governm
National legislation prevail
the national legislation Kenya (norms, standards a
the national legislation
unreasonable action by
is prejudicial to the
or security, nature tocounty; or
impedes the implem
economic policy.
the national legislation
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At th
Meanwhile:
Parliament will provide for intervention by thenational government if a county government:
is unable to perform its functions; or
does not operate afinancial management system
that complies with the requirements prescribed
by national legislation. Such interventionwill require the national government to take
measures that will assist the county government
to resume full responsibility for its functions.
The President may suspend a county government:
in an emergency arising out of internal conflict or
war; or
in any other exceptional circumstances upon
independent investigations by a Commission of
national revenue that is ann
governments (not less than
While doing this, the Senat
National interests.
Public debt and nat
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Performance of county governments.
Fiscal capacity and efficiency of county governments.
Developmental and other needs of the counties.
Economic disparities between counties.
Need for affirmative action.
Flexibility in responding to emergencies.
Predictability of revenue allocation.
Motivation on counties to optimise their capacity in raising
revenue.
The Senate may:
request and consider recommendations from the Commission on
Revenue Allocation.
consult the county governors, the Cabinet Secretary responsible for
finance and any organisation of county governments.
Note:
A co
reven
nati
shal
to th
und
dedu
whe
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Commissions and Independent
Offi
c es
The Commissions and Independent Offices are
established as legal bodies with clear succession
mechanisms and can sue or be sued.
The objects of the Commissions and the Independent
Offices are to:
protect the sovereignty of the people.
secure the observance by all State organs of
democratic values and principles.
promote the rule of law.
The Commission and hold
are to submit reports annu
to Parliament. Every repor
publicized.
The Commissions and Ind
1. The Kenya National H
Commission- (to monitordealing with human rights)
2. The National Land Co
land)
3. The Independent Elect
Commission (To manaboundary reviews)
4. The Parliamentary Serv
parliamentary services and f
5 The J dicial Ser ice Co
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7. The Public Service Commission (Management
of public service including hiring andfiring of public
officers).
8. The Salaries and Remuneration Commission
(set and review the remuneration and benefits of all
State officers).
9. The Teachers Service Commission (register,
hire, deploy and discipline teachers).
10. The National Police Service Commission
(recruitment, appointment and discipline of persons in
the public service).
The Independent Offices are:
the Auditor-General and
the Controller of Budget (see page 58).
identified and recommended fo
appointment in a manner that
national legislation will provide
approved by the National Assem
appointed by the President.
The appointments are to take intoaccount the National Values and t
Principle that the composition of
the commissions and offices reflect
the regional and ethnic diversity of
the people of Kenya. A member o
a Commission, or the holder of an
Independent Office shall be appoi
for a single term of six years and i
not eligible for re-appointment. Th
will however not apply to an ex-offi
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ThinkKatiba,
ThinkKenya
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Leadership and Integrity
Authority assigned to a State officer/
Public officer is a public trust. It is to be
demonstrated by respect for the people, honour
to the nation, dignity to the office and public
confidence in the integrity of the office. The
officers have a responsibility to serve the
people, rather than themselves
Principles of leadership and integrity are:
selection on the basis of personal integrity,
competence and suitability, or election in free and
selfless service based sol
demonstrated by;
honesty in the execu
the declaration of a
conflict with public
accountability to the pu
discipline and commitm
Public servants shall be gui
principles and values:
high standards of profe
efficient, effective and e
responsive, prompt, effe
provision of services.
involvement of the peo
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f i i h i f K di R
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fairness in the representation of Kenyas diverse
communities and:
affording adequate and equal opportunities for
appointment, training and advancement, at all
levels of the public service of men and women,
the members of all ethnic groups, and persons
with disabilities.
Any gift or donation to a State/Public officer on a public
or official occasion is a gift or donation to the Republic
and is to be delivered to the State unless exempted
under an Act of Parliament.
A State officer/Public officer is not allowed to maintain
a bank account outside Kenya except in accordance
with an Act of Parliament;
or seek or accept a personal loan or benefit in
circumstances that compromise the integrity of the State
Restric tion on a c tivities
A full-time State officer is n
gainful employment. Any a
allowed to hold office in a p
In viewthe Prop
Constitu
K A TI B A M PY A , K EN Y A M O J A H
The referend um
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Part TProc lamation of the
Constitution
From the c urrent to the new
Constitution
Leg islation to be effec ted
Amendment of this
ConstitutionMoving
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A referendum gives citizens a voiceto set the terms of government and standard
by which they would be governed
K A TI B A M PY A , K EN Y A M O J A H
1 Th R f d lli ti
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1. The Referend um
A referendum can be defined as taking a vote on an
issue of public importance, which requires the citizens
to have a say. The process is not different from voting
in an ordinary election. The main difference between
an election and a referendum is that the latter dwells
on issues while the former focusses on the electionof persons. The referendum is one of the processes
under the Review Act; it will be a means of adopting
a new Constitution. Voting in the referendum will be
conducted on a Yes or No basis.
Cond uc t o f the Referendum
The referendum will be conducted by the Interim
Independent Electoral Commission (IIEC) of Kenya,
between 60-90 days after the publication of the draft
announce polling time.
announce the campaign
publish the results withi
2. Proc lamation
ConstitutionIf a Yes vote is secured, t
will proclaim the Proposed
the Constitution of Kenya.
The date of proclamation wthe effective date (when) t
Constitution will enter in fo
Alternatively, the new const
shall enter in force after the
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K A TI B A M PY A , K EN Y A M O J A H
3 From the Current to the New All the obligations laws
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3. From the Current to the NewConstitution
If the new Constitution comes into force, it will do
so with the recognition that Kenya would not be
in a constitutional vacuum. It contains transitional
arrangements and time lines that are to be in place for
purposes of transition from the old constitution to a new
one.
Transitiona l Arrangements
The Coalition Government will remain in place
untill the next elections are held in 2012, unless it is
dissolved earlier. If it is dissolved after the effectivedate but before 2012, elections for the county
governments will only be held in 2012.
The next general elections shall be held under the
new Constitution
All the obligations, laws
are until new correspon
effected including legisl
Provincial Administrati
years.
Institutions created by t
will take over current co
offices.
Necessary legislation wi
within 5 years to effect
Leg islat ion
Leg islation in respec t of c ult
Citizenship
Leg islation on c itizenship
C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE W
Leg islat ion Time period Leg islat ion
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Leg islat ion Time period
to be effected
Land
Kenya Nat iona l Huma n Rights
& Equality Co mm ission One yea r
Comm unity land Five yea rs
Reg ula tion of land use a nd
prop erty Five yea rs
Leg islation on land 18 mo nthsAgreem ents relating to
na tura l resource s Five yea rs
Leg islation reg ard ing environm ent Four yea rs
Leadership
Ethics and anti-c orrup tion com mission One yea r
Leg islat ion on lea dership Two yea rsLeg islation on elec tions One yea r
Elec tora l d isputes One yea r
Independent Electoral and
Bound aries Co mm ission One yea r
Leg islation on politica l pa rties One yea r
Leg islat ion
Executive
Power of mercy
Assump tion o f offic e of pres
Judiciary
System of courts
Remova l from office
Judic iary Fund
Vetting of judg es and ma gis
Devolved Government
Spe aker of a c ounty assemb
Urban area s and c ities
Support for county go vernmRemova l of a c ounty go ver
Vac ation of office o f memb
c ounty assembly
Public pa rtic ipa tion a nd cou
assemb ly pow ers, p rivileg es
K A TI B A M PY A , K EN Y A M O J A H
Leg islat ion Time period 4 Amend ment o
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Leg islat ion Time period
to be effected
Public Finance
Reve nue Fund s for county
go vernments 18 mo nths
Continge nc ies Fund One yea r
Loan guarantees by national
go vernment One year
Financ ial c ont rol Two yea rsAc counts and audit of public entities Four yea rs
Proc ureme nt of pub lic go od s
and services Four years
Public Servic e
Values and p rinciples of pub lic service Four yea rs
National Security
Nat iona l sec urity orga ns Two yea rs
Comm and o f the National
Police Service Two yea rs
General
4. Amend ment oConstitution
There are two ways in whic
amended:
1. Parliament and Refe
For the following provision
must approve, following wh
held:
supremacy of this Cons
territory of Kenya. sovereignty of the peop
national values and prin
Bill of Rights.
C O M M ITTE E O F EX P ER TS O N C O N S TITU TIO N A L RE V IE W
The following provisions prevail: 2 Amend ment by po p
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The following provisions prevail:
The ob jec ts, princ ip les and struc ture of devo lved
government:
A proposed amendment from Parliament is approved by
a referendum only if:
at least twenty per cent of the registered voters in
each of at least half of the total number of counties
vote in the referendum.
the amendment is supported by a simple majority of
the citizens voting in the referendum.
2. Amend ment by po p
An amendment to the Conbe proposed by a popular i
by at least one million regis
A popular initiative for an a
to the Constitution may be
form of a general suggestio
a formulated draft Bill pres
to Parliament by IEBC from
petitioning entities.
K A TI B A M PY A , K EN Y A M O J A H
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rides on the present and anticipates prospects
A good Constitution acknowledges the past,
the future holds for the majority.
Notes
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otes
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COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEWDelta House Waiyaki Way, Westlands
P.O. Box 8703 00200 Nairob i
Tel: 020 444 32 14/ 15/ 16, 252 7152; Fax: 020 444 32 11/ 252 6959
info@co ekenya.g o.ke
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www.coekenya.go.ke