Proposed Constitution of Kenya HANDBOOK · KATIBA MPYA, KENYA MOJA – HANDBOOK FOR CIVIC EDUCATION 19 responsibilities of citizens. independent structures that safeguard and guarantee

HANDBOOKfor Civic Education

Proposed Constitution of Kenya

Committee of Expertson Constitutional Review

Consultants

Gideon Ochanda Content Developer/Lead Consultant

Ngari Gituku Message Developer

Clara Momanyi Translation - English to Kiswahili

John Nyagah Illustrations

Lilian Ohayo Graphic Design and Layout



Committee of Expertson Constitutional Review

© Committee of Experts 2010

ContentsAcknowledgement 4

Foreword 7

The Committee of Experts (CoE) 8

Comparative Matrix betweenthe current Constitution and the Proposed Constitution 10

Deputy Directors 13

Part OneBackground Information 15The purpose of the Handbook 16

Some Basics 18

What is a Constitution? 18

What Kind of Constitution have Kenyans been looking for? 19

Attempted Changes 21

Part TwoThe Proposed Constitution 25The Review Process 27

Roadmap 29

The Foundation 30

Framework 31

Provisions of the Proposed Constitution 32Citizenship 34

Land 36

The Bill of Rights 40

Elections 42

Political Parties 44

Arms of Government 45

The Executive 47

The Judiciary 53

Funding for National Government 56

Devolved Governments 62

Commissions and Independent Offi ces 75

Leadership and Integrity 78

Part ThreeMoving Forward 81The Referendum 83

Proclamation of the Constitution 83

From the Current to the New Constitution 85

Amendment of this Constitution 87

3

Acknowledgement

4

The Handbook, Curriculum and Manual on Civic Education on the Proposed Constitution are the handiwork of team effort. It has defi nitely taken quite some burning of midnight oil, thought and skill. The current look and tone of this Handbook is indeed a fi ne mosaic of valuable expertise. I am therefore confi dent that the content herein, will speak to all Kenyans,

and inform them on the Proposed Constitution ahead of the referendum.

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

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

for both setting the tempo of this document, and fi nding time to moderate the content thereof.

Without the leadership and dedication of CoE’s Deputy Director in charge of Civic Education,

Mobilization and Outreach department (CMO), Veronica Nduva; Programme Offi cer, Ida Rob;

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

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

technical soundness and clarity of the document. Special gratitude goes to Maureen Mhando for

her dedicated and meticulous editing of all the civic education reference materials.

My special gratitude goes to the team of consultants who domesticated terms and kneaded

technical data to give the Handbook a wider value in the public arena. This team of men and

women worked tirelessly and in harmony, to bring to life CoE’s dream.

5

I am also indebted to the development partners and the Government Ministries who have

walked with the CoE and ultimately made it possible for the production of this Handbook.

In particular, I am thankful to the Coordination Liaison Offi ce team, under the leadership of

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

the UNDP-Kenya basket fund and the Ministry of Justice, for their invaluable contribution.

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

this Handbook would not have seen the light of day.

A constitution is only made once in a lifetime! Through this Handbook, I urge Kenyans to

participate with knowledge, in the making of their Constitution.

Katiba Mpya, Kenya Moja!

Dr. Ekuru Aukot,Director,Committee of Experts on Constitutional Review.

Katiba Mpya,

Kenya Moja

When the Committee of Experts (CoE) was tasked to unlock the process that would ultimately pave way for a new constitution, its mandate by extension included bequeathing Kenyans a long-drawn dream. It is therefore incumbent upon every Kenyan to take note of the spirit and letter espoused in the Proposed Constitution.

To appreciate the shift from old to new and acknowledge the adjustments to the constitution Kenyans have hoped for over the years, it is necessary to make a quick comparison between the current and the proposed law. Whereas in the current Constitution sovereignty is placed on the Republic, thus limiting the rights of individuals, in the proposed law, sovereignty belongs to the people. The benefi ts of this shift guarantee that Kenyans will enjoy a wider range of rights once the new law becomes effective.

The structures of governance in the Proposed Constitution will take power closer to the people and involve them in determining the course of their destiny whilst providing for transparency as well as better checks and balances in the conduct of public affairs. In addition, ownership of property, and the right to prosper and benefi t from one’s efforts has been streamlined in the proposed law. This will mark the end of unfair distribution of wealth. Besides, both personal and communal property are protected in the proposed law.

As opposed to the current Constitution, the proposed law provides for stronger political parties with a national character and capacity to unite Kenyans. The new law also contains provisions made for greater dialogue and participation of wananchi.

hen the Comm

Foreword

7

Committee of Experts (CoE)

The Committee of Experts on

Constitutional Review is an

independent body established under

the Constitution of Kenya Review

Act 2008.

The CoE comprises eleven members

nominated by Parliament and

appointed by the President.

5

1

2

4

3

The members are:

1. Nzamba Kitonga (Chairperson)

2. Atsango Chesoni (Vice Chairperson)

3. Prof. Fredrick Ssempebwa

4. Otiende Amollo

5. Dr. Chaloka Beyani

6. Hon. Njoki Ndung’u

7. Bobby Mkangi

8. Abdirashid Abdullahi

9. Prof. Christina Murray

Ex-offi cio

10. Hon. Amos Wako

11. Dr. Ekuru Aukot

6

7

The CoE mandate

identify both contentious and agreed on issues

receive public views

carry out thematic consultations

prepare Harmonized Draft Constitution

prepare Proposed Constitution

facilitate civic education

liaise with Electoral Commission for purposes of the referendum

8

10

9

11

10

C O M M I T T E E O F E X P E R T S O N C O N S T I T U T I O N A L R E V I E WComparative Matrix betweenThe current Constitution and the Proposed Constitution

PreambleNational Values, Principles and Goals are set

Basics: Setting basis and reason for the Constitution

Sovereignty is placed on the Republic Limited Rights

Sovereignty belongs to the peopleExpanded Bill of Rights including socio-economic, cultural and group rights

Ownership/Membership/Individual Rights/Obligations

Citizenship

Discriminates between categories of citizensNo dual citizenship

Provides for dual citizenshipEither parents recognized to confer citizenship

Nil

ISSUE THE CURRENT CONSTITUTION THE PROPOSED CONSTITUTION

10

K A T I B A M P Y A , K E N Y A M O J A – H A N D B O O K F O R C I V I C E D U C AT I O N

11

Comparative Matrix betweenThe current Constitution and the Proposed Constitution

Clear leadership codeGovernment broken down to 2 levelsA strong national and a strong county governmentRoles between levels clear cutTwo chambers of Parliament with enhanced roles An independent Judiciary, Provides for a Supreme CourtPresident as Head of StatePresidential actions sanctioned by ParliamentChecks and control institutions providedCabinet limited to a maximum of 24 and drawn from outside ParliamentIndependent candidates can stand for electionsRecall of MPs

No devolved government

Provides for devolved governmentFunctions/competencies listed, sources of funding for the levels provided

Devolution

No leadership codeCentralized structure of GovernmentAll powerful presidencyNo clear separation of powersRole of Parliament is weakNo independent candidatesNo Supreme Court No recall of MPs


– Governing Structures

– Leadership code– National Executive– Judiciary– Parliament

11

12

C O M M I T T E E O F E X P E R T S O N C O N S T I T U T I O N A L R E V I E WComparative Matrix betweenThe current Constitution and the Proposed Constitution

Fair and equitable allocation and distribution of resources

Public resources

Only trust land is recognizedLand is held and controlled centrallyNo safeguards on landholdingLand is vested in the President and the county councils

Other land ownership categories recognized/tenures are providedProvision on the Land CommissionLand belongs to the people collectively

Not constitutionally recognized apart from the role in clearing candidates

Clear functions provided forPublic funding allowed for partiesIndependent Electoral and Boundaries Commission allowed to regulate political party nomination processes

Inequitable distribution of resources criteria


Land

Political parties

12

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Deputy Directors

1

4

3

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

to the Committee are judiciously

executed. Their charge included the

implementation of various decisions,

proposed actions and ideas from various

institutions as well as individuals

involved in the review process.

The Deputy Directors are:

1. Veronica NduvaCivic Education, Mobilization & Outreach

2. Peter AyugiFinance & Administration

3. Dr. Michael ChelogoyResearch, Drafting and Technical Support

4. Vitalis MusebePublic Information & Media

13


15

Part One

15

Handbook as part of the mandate

The Purpose of the Handbook

Understanding some basics

What is a Constitution?

Why are Constitutions necessary?

What kind of Constitution have Kenyans been looking for?

Background Information

16

C O M M I T T E E O F E X P E R T S O N C O N S T I T U T I O N A L R E V I E W

16

C OO M M I T T E EE O F E X P E R T S O N C O NN S T I T UU T I O N A L R E V I E W

The Purpose of the Handbook

16


Primarily, this handbook is intended to highlight the ground-breaking changes in the Proposed Constitution. At the same time, this document captures the point of departure that foregrounds the spirit and focus of the new Constitution, compared to the current one. The Proposed Constitution is geared

towards the welfare of the citizen.

Specifi cally, the purpose of this handbook is to equip Kenyans with knowledge on the

Proposed Constitution and enable them to make informed decisions as they prepare

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

to civic education providers, opinion leaders, mobilizers and every Kenyan keen on

understanding the provisions contained in the Proposed Constitution and the promise

it holds for the future of this country.

To a large extent, this handbook highlights key aspects of the Proposed Constitution

in a user friendly format. Every Kenyan is encouraged to read it thoroughly and

understand it.


1717

A constitution is a social contract.

and provides a framework for them to realise their dreams

It binds members of a group together

18


Some Basics

What is a Constitution?

A constitution is a general understanding among members of a group who have identifi ed their common interests/needs and how the interests may be achieved. This understanding is sometimes referred to as organizational rules.

Why are Constitutions Important?

Constitutions are important because they:

defi ne and give identity to individuals/members who come together.

determine members'/citizens' responsibilities i.e. participation in elections, paying of taxes, monitoring government programmes, etc.

establish government structures, authorities, positions and offi ces.

provide structures/offi ces/powers to be exercised in trust for the people.

check authority/powers given to protect individual rights.

guarantee checks on authorities by separating their functions and roles.

ensure accountability, transparency and responsiveness.

enable individual effort to be harnessed for national wealth.

ensure wealth is distributed for common services that promote individual wellbeing.

Modern constitutions the world over are expected to meet certain basic expectations. These include:

a preamble as an opening introduction to spell out the basis of the constitution.

rights, privileges and benefi ts of citizens.

“The Proposed

Constitution

will create,

protect and set

rules to manage

institutions that

guarantee my

prosperity”


19

responsibilities of citizens.

independent structures that safeguard and guarantee citizens’ rights and benefi ts.

equitable distribution of resources.

clear separation of roles and powers.

clear checks and balances on power both horizontally and vertically.

participation of citizens in the overall governance and at immediate levels.

provision for equality and affi rmative action for the minorities and the marginalized.

What Kind of Constitution have Kenyans been looking for?

From the views collected by the Constitution of Kenya Review Commission (CKRC) in 2004, and subsequently by the Committee of Experts, Kenyans want a constitution that:

recognizes them, their values and aspirations.

safeguards and respects the rule of law.

promotes peoples’ involvement and effective participation in government.

expands the Bill of Rights to include socio-economic, and cultural rights and group rights.

checks the powers of the President.

clearly allocates and separates powers of State organs.

promotes understanding, transparency and accountability in public affairs.

creates proper checks and balances in governance.

“The Proposed Constitution shall control the power that our leaders exercise and protect my rights”

20


20

provides for a devolved government.

provides for equitable distribution of resources and opportunities.

contains affi rmative action and prohibits all discrimination.

“A new

constitution

will guarantee

my security,

freedom and

rights”

Katiba Mpya

Jisomee, Jiamulie,

Jichagulie


21

Attempted Changes

Due to the weaknesses listed, there have been various attempts to change the constitution, since1998.

In 2005, a referendum was taken on a draft constitution, which was voted against.

“I deserve a constitution that enables me to live my dreams and those of my children, to the fullest”

22


Weaknesses in the Current Constitution

22


Does not adequately address the identity of Kenyans and what brings them together.

Does not provide for purpose, goals and values that Kenyans are to pursue as a people.

Does not adequately address the relationship between the people, the Government and the State.

Does not provide for socio-economic and development rights.

Allows for discrimination on matters of burial, adoption, marriage, divorce and property inheritance.

Deprives direct citizenship to those born of Kenyan mothers but of foreign fathers.


23

Only one centralized Government.

An imperial presidency.

The President has unchecked powers to appoint.

A disproportional representation in the National Assembly.

Cabinet seating both in Parliament and the Executive.

No Supreme Court.

Does not provide for devolved government.

Does not provide for means of equitable distribution of resources.

“The old constitution is blind to many areas that can ensure me equal opportunities or accountable governance”


Unlike the old constitution, the proposed one has safeguards,checks and guarantees individual rights and liberties

24


25

Part Two

25

The review process

The foundation of the Proposed 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

LEADERSHIP AND INTEGRITY

DEVOLUTION AND THE COUNTY GOVERNMENT

COMMISSIONS AND INDEPENDENT OFFICES

The Proposed Constitution

26


The process leading to the Proposed Constitution

of the national accord

started in December 2008 as one of the pillars

26


27

The Proposed Constitution

The Review Process

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).

3. The National Assembly.

4. The people of Kenya through a referendum.

The mandate of CoE has already been outlined (see page 7). The PSC is mandated to deliberate and build consensus on contentious issues on the basis of the recommendations of CoE. The PSC is also tasked with creating a bridge between the National Assembly and the CoE. The National Assembly has the role of approving the draft constitution with or without amendments for onward submission to the Attorney General. The Reference Group is a facilitating player consisting of 30 persons, each representing an interest group, with the mandate to facilitate consultations on contentious issues. The AG, other than being an ex offi cio member of the CoE, has the responsibility of publishing the draft. While he may not to alter the draft he can edit as appropriate before its publication. (See the referendum process under part 3 - Moving Forward).

“My aspirations are enshrined in the Proposed Constitution”

28



29

Review Process and Roadmap

14

160

30

21

21

217

30

30

30

30

2

14

Days The main steps in the review process

Publication & promulgation of the New Constitution of Kenya Notifi cation of the public on Referendum results by IIEC

Referendum

Committee to conduct civic education

The AG to publish the Draft Constitution

The National Assembly to approve the Draft

Then PSC to table the report to the National Assembly

PSC to reach an agreement on the Draft and have the committee review the same and resubmit to PSC

Committee to present Draft to PSC

Consideration of views of the public and integration of the views of the draft and the report Committee to publish its report and Harmonized Draft Constitution and receive public views on the same

Consultations with Reference Group

Thematic consultations on contentious issues

Identifi cation of contentious and issues agreed upon

Research, studies, public views and consultations

Forwarding of names of experts by PSC and the AU panel of eminent persons to the National Assembly

Shortlisting and interviewing candidates for positions as experts

Invitation to members of the public to apply for positions as experts at the committee

30


The Foundation of the Proposed constitution

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 affi rmative action.

recognize and place responsibility among State organs so as to enhance checks and balances and accountability of the Government to the people.

promote peoples’ participation in government i.e. in elections, exercise of power and participation in the management of public affairs.

respect ethnic and regional diversity.

ensure provision of basic needs of all Kenyans.

promote and facilitate regional and international cooperation.

Based on the above objects, the Proposed Constitution is founded on the following principles:

1. All sovereign power belongs to the people of Kenya, exercisable at the national and county levels of government and only in accordance with the Constitution.

2. The people may exercise their sovereign power either directly or through their democratically elected representatives.

3. The Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.

“The Proposed Constitution reassures me of continued peace, an atmosphere of unity and my integrity as a Kenyan”


31

4. Authority under this Constitution is delegated to the National Executive, Parliament, the Judiciary and devolved 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 rights.

Framework of the Proposed Constitution

The Proposed Constitution places the supreme law into two broad areas. First, it deals with defi ning who we are as a people, our sovereignty and citizenship, individual rights, how the individuals are to relate to the governing institutions, and have access to natural resources.

Secondly, it deals with how the needs of Kenyans are fulfi lled. It lays down a leadership and integrity code to enable public institutions to work in the interest of the people.

“The new Constitution guarantees me sovereign power and allows Kenyans to express themselves through their elected leaders”

Provisions of the Proposed Constitution

32


3333

Citizenship

Land

The Bill of Rights

Elections

Political Parties

Establishment of Parliament

The Executive

The Judiciary

Funding for the National Government

Leadership and Integrity

County Governments

Commissions and Independent Offi ces

34


As a Kenyan citizen by birth, I will not lose my citizenship if I acquire citizenship of another country

Citizenship

The Proposed Constitution recognizes the following categories of citizenship:

1. By birth

Applies to:

persons born of either Kenyan mother or father.

a child found in Kenya, who appears to be less than 8 years and of unknown parentage.

restoration of citizenship on application by a Kenyan by birth, who had ceased to be a Kenyan.

2. By Registration

Applies to:

a person who has been married to a citizen for at least 7 years.

a lawful resident in Kenya for a continuous 7years.

an adopted child by a Kenyan citizen.

Dual citizenship

Kenyan citizens by birth may also be citizens of another country.


3535

36


Land

All land in Kenya collectively belongs to the people of Kenya as a nation, as communities and as individuals. Land is classifi ed 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.

transparent and cost effective administration of land.

sound conservation and protection of ecologically sensitive areas.

elimination of gender discrimination in law, customs and practices related to land and property in land.

encouragement of communities to settle land disputes through recognised local community initiatives consistent with the law.

Public land

Public land includes:

land not set aside for any purpose.

land set aside for public utility use or land that is occupied by the State organ as lessee.

land transferred to the State by way of sale, reversion or surrender;

land to which no individual or community ownership is traceable

land which no heir can be identifi ed.

all minerals and mineral oils.

government forests, game reserves, water catchment areas, national parks, government animal sanctuaries, and specially protected areas;

all roads and thoroughfares.


37

all rivers, lakes and other water bodies.

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

the continental shelf.

all land between the high and low water marks.

any other land declared to be public land by an Act of Parliament.

Community land

Community land consists of:

land registered in the name of group representatives.

land transferred to a specifi c community.

any other land declared to be community land by an Act of Parliament, and

land that is:– held, managed or used by

specifi c communities as community forests, grazing areas or shrines;

– ancestral lands and lands traditionally occupied by hunter gatherer communities; or

– held as trust land by the county governments, but not including any public land held in trust by the county government.

Any unregistered community land is to be held in trust by county governments on behalf of the communities for which it is held.

“The Proposed Constitution guarantees me the protection of community land “

38


Private 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.

Legislation 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 minimum and maximum land holding acreages in respect of private land.

– regulate the manner in which any land may be converted from one category to another.

– regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage.

– protect, conserve and provide access to all public land.

– enable the review of all grants or dispositions of public land.

– protect the dependants of deceased persons holding interests in any land, including the interests of spouses in actual occupation of land.

“Because of a new constitution, I can now dream of owning land privately without fear of losing it”

Note:Landholding by non-citizens is allowed only through lease for a period not exceeding ninety-nine years.


3939

40


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 human rights and fundamental freedoms is:

to preserve the dignity of individuals and communities.

to promote social justice.

to allow for the realisation of the potential of all human beings.

to show that it is the duty of the State and every State organ and state offi cers (together sometimes referred to as duty bearers) to observe, respect, protect and promote fundamental freedom and individual rights.

to ensure that every individual in the society is covered including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and religious or cultural communities.

to ensure that every person has the right to start court proceedings when a right or fundamental freedom has been denied, violated or infringed, or is threatened.

Your rights in the Constitution include:

The right to life

The right to equality and to be free from discrimination.

Rights of the family

Human dignity

The right to freedom and security of the person

Freedom from slavery

The right to privacy

Rights to food, water, health care, education, housing and social security

Freedom of conscience, religion and belief

Freedom of expression and assembly

Freedom of the media and the right to information

Political rights

Freedom of association

Freedom of movement

Right to property

Right to fair working conditions

The right to a fair trial

There are also special provisions in the Proposed Constitution for:

Women

Young people

Children

Older members of society

Persons with disabilities

Minorities and marginalized groups

These provisions require the State to take special care of these groups of people.


4141

42


“The constitution allows me to vie for an elective seat as an independent candidate”

Elections

General elections are to be conducted every fi ve 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.

not been convicted of an election offence.

registered at only one registration centre.

Candidates to elections are to be nominated by their respective political parties. However, the Constitution

allows independent candidates to contest in elections. For one to qualify as an independent candidate, the person must not to be a member of a registered political party or must not have been a member of any party for at least three months before the date of the election.

The boundaries for all the electoral areas are to be drawn by an Independent Electoral and Boundaries Commission (IEBC). The commission is responsible for:

the continuous registration of citizens as voters.

the regular revision of the voters roll.

the delimitation of constituencies and wards.

the regulation of nomination of candidates by political parties.


43

“My constituency boundaries are not cast in stone. They will be reviewed every 8-12 years so that I may be better represented”

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 code of conduct for candidates and parties contesting elections.

monitoring compliance with the electoral laws.

supervising referenda and elections to any elective body or offi ce established by this Constitution.

review the number, names and boundaries of constituencies at intervals of eight and twelve years.

44


Political PartiesThe 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.

follow the code of conduct for political parties.

A political party is not allowed to:

be founded on a religious, linguistic, racial, ethnic, gender or regional basis.

engage in or encourage violence by, or intimidation of its members, supporters, opponents or any other person.

establish or maintain a paramilitary force, militia or similar organisations.

engage in bribery or other forms of corruption.

accept or use public resources to promote its interests or its candidates in elections.

“Whichever party I choose to join will be Kenyan by character”


45

Arms of Government

Parliament

Parliament is established and consists of two Houses; the National Assembly and the Senate.

National 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 special interests including the youth, persons with disabilities and workers.

the Speaker, who is an ex offi cio member.

The National Assembly represents the people at the constituencies and those with special interests. Its functions are to:

make national laws.

determine the allocation of national revenue.

approve funds for expenditure by the national government.

exercise oversight over national revenue and national expediture.

review the conduct in offi ce of the executive.

approve declarations of war and extensions of states of emergency.

appove appointments made by the President.

“My views were

collected,

and I said I want

a constitution

that recognizes

my aspirations,

and which

respects the rule

of law”

46


“A two chamber House provides me with better governance by instituting an efficient system of checks and balances”

The Senate

Consists of:

forty-seven members each elected by the registered voters of the counties.

sixteen women members nominated by political parties according to their proportion of 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 offi cio member.

The Senate:

represents the counties, and serves to protect the interests of the counties and their governments.

participates in law-making particularly at the counties level.

determines the allocation of national revenue among counties.

oversees national revenue allocation to the county governments.

participates in overseeing State offi cers.

Parliament proceedings including committees are open to the public and are to be conducted in English, Kiswahili and sign language. The quorum of Parliament is fi fty members for the National Assembly and fi fteen members for the Senate.


47

The Executive

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 Assembly, appoints, and may dismiss:

– Cabinet Secretaries,

– the Attorney-General,

– the Secretary to the Cabinet,

– Principal Secretaries,

– High Commissioners, ambassadors and diplomatic and consular representatives.

chairs Cabinet meetings.

directs and co-ordinates the functions of Ministries and government departments.

receives foreign diplomatic and consular representatives.

confers honours in the name of the people and the Republic.

declares a state of emergency.

with the approval of Parliament, may declare war.

ensures that the international obligations of the Republic are fulfi lled.

“I have a greater say on who my President will be and how long he/she may be at the helm”

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“Before I cast my vote, I will have an idea and chance to determine who the principal assistant to the incoming President will be”

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 qualifi ed to be nominated as a presidential candidate if she/he:

is a citizen by birth.

is qualifi ed to stand for election as a member of Parliament.

is nominated by a political party, or is an independent candidate.

is nominated by not fewer than two thousand voters from more than half of the counties.

does not owe allegiance to a foreign State.

A candidate only wins a presidential election if she/he receives:

more than half of all the votes cast in the election.

at least twenty-fi ve per cent of the votes cast from more than half of the counties.

In case no candidate is elected, a fresh election is held within the next thirty days between the top two candidates. The results of the winning presidential candidate must be declared in 7 days. The President

has to be sworn in public by the Chief Justice, on a Tuesday, 14 days after declaration of results.

If the President-elect dies after being declared winner but before assuming offi ce, the Deputy President-elect is sworn in as acting President on the date when the President-elect would have been sworn in but a fresh election have to be held within sixty days. If both die before assuming offi ce, the Speaker of the National Assembly will act as President and a fresh


49

“In the new Constitution I will have the right to be governed by a President who may be removed from office if he/she violates this constitution, and any other laws, or for gross misconduct”

presidential election will be conducted within sixty days.

When in offi ce, the President cannot be sued but Parliament can institute removal proceedings if there are questions to do with the President’s health, violation of the country’s laws or gross misconduct.

Vacancy in the offi ce of President

When the offi ce of President becomes vacant , the Deputy President will assume offi ce as President for the remaining period.

Deputy President

The Deputy President is the principal assistant of the President and deputizes him/her. He/she is not elected directly by voters but is a running mate of the presidential candidate. In the case a vacancy, the President nominates another person who has to be voted for by the National Assembly. The Deputy President may be removed from offi ce on the same grounds as the President.

The Cabinet

The Cabinet is appointed with the approval of the National Assembly and may be dismissed by the President. The President chairs the Cabinet. It consists of:

the Deputy President;

the Attorney-General; and

not fewer than fourteen and not more than twenty-two Cabinet Secretaries (equivalent of Cabinet Ministers). A Cabinet Secretary cannot be a Member of Parliament.

50



51

“I expect more efficient services from the Government”

Secretary to the Cabinet

There will be a Secretary to the Cabinet, whose functions will:

be in charge of the Cabinet offi ce.

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.

Principal Secretaries

These are the equivalent of the current Permanent Secretaries. They are in charge of administration of each Ministry or State department.

Attorney-General

The Attorney General:

is the principal legal adviser to the Government.

represents the national government in court or in any other legal proceedings.

performs any other functions required by any law in the land.

has authority to appear as a friend of the court in any civil proceedings.

promotes, protects and upholds the rule of law and defends public interests.

Director of Public Prosecutions

The offi ce of Director of Public Prosecutions is established separately from that of the AG. The Director of Public Prosecutions:

has power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct.

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“With a better structured Executive in the Proposed Constitution, I am guaranteed superior services from my Government”

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.

Katiba Mpya,

Tiba ya Kenya


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The Judiciary

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 the superior courts, magistrates, other judicial offi cers and staff. There is a Chief Registrar of the Judiciary, who is the chief administrator and accounting offi cer.

Supreme Court

The Supreme Court consists of the Chief Justice, who is the President of the court, the Deputy Chief Justice and fi ve judges. The function of the Supreme Court is to:

hear and determine disputes relating to the election of the President of the Republic.

hear and determine appeals from the Court of Appeal and any other court or tribunal.

if required, give an advisory opinion on any matter concerning county government.

The judges are appointed from recommendations made by an expanded and independent Judicial Service Commission. The Chief Justice and the Deputy Chief Justice are approved by the National Assembly. Other than the Chief Justice, judges will serve until retirement at the age of seventy years or at any time after attaining the age of sixty-fi ve years.

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Note:The jurisdiction of a Kadhi’s court is limited to the determination of questions of law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion.

Court of Appeal

The Court of Appeal consists of up to 12 judges, one of 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.

hearing any question with regards to the interpretation of the Constitution.

questions whether any law is inconsistent with or contradicts the Constitution.

any matter relating to the constitutional relationship between the levels of government.

supervising the subordinate courts.

Subordinate courts

The subordinate courts are:

the Magistrates’ courts.

the Kadhis’ courts.

the Courts Martial.

any other court or local tribunal as may be established by an Act of Parliament.


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CHIEF JUSTICECCCCCCCHHHHHHIIIIIIEEEEEEFFFFFF JJJJJJUUUUUUSSSSSTTTTTT IIIIIICCCCCCCEEEEEESUPREME COURT

COURT OF APPEAL

HIGH COURT

TRIBUNALS

SPECIAL COURTS

e.g.on rent & business premises

e.g. on land, labour, environment

KADHIS’ COURTS

Structure of the Judiciary

SUPERIOR COURTS

SUBORDINATE COURTS

– – – – – – – – – – – – – – – – – –– – – – – – – – – – – – – – – – – –– – – – – – – – – – – – – – – – – –– – – – – – – – – – – – – – – – – –– – – – – – – – – – – – – – – – – –

MAGISTRATES’ COURTS

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Funding for the National Government Parliament may authorise the national government to impose any other tax or duty, except taxes that are due to county governments. The budget estimates and expenditure must be approved by Parliament.

Expenditure before annual budget is passed

The National Assembly may authorise the withdrawal of money of up to one-half of the total amount in the annual estimates from the Consolidated Fund before the annual appropriation process.

Supplementary appropriation

The national government may spend money that has not been allocated if the amount allocated for any purpose is insuffi cient. This can also be done with a need for expenditure or if the withdrawal is from the Contingencies Fund.

All money raised and received by or on behalf of the national government will be paid into a Consolidated Fund.

The main sources of national revenue are:

income tax;

value-added tax;

customs duties and other duties on import and export goods;

excise tax;

licenses; and

borrowing (under laid down law or procedure).


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Financial control

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 of fi nancial records and auditing of accounts for securing effi cient and transparent fi scal management.

prescribes a framework within which policies relating to procurement and asset disposal will be implemented.

The accounting offi cer of a national public entity is answerable to the National Assembly for its fi nancial management, and the accounting offi cer of a county is accountable to the county assembly for its fi nancial management. The accounts of all governments and State organs are to be audited by the Auditor-General.

Controller of Budget

The Controller of Budget oversees the implementation of the budgets of both the national and county governments. The controller authorizes withdrawal of all public funds.

Auditor-General

The Auditor-General’s offi ce audits and reports on annual accounts of:

the national and county governments;

all courts.

every Commission and Independent Offi ce.

the Senate and the county assemblies.

political parties funded from public funds.

the public debt.

any other entity that legislation mandates the Auditor-General to scrutinize.


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“ I can now expect probity in the use of funds meant to benefit me because accounting officers will be answerable to the National Assembly”

Central 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 Kenya’s 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

National Police Service.

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47 COUNTIEScounty assembl ies

county execut ive

committees

county pub l ic serv ice

NAT IONAL GOVERNMENT

NATIONAL LEGISLATION/FUNDS/NATIONAL POLICIES/STANDARDS

Execut ive Par l iament Judic iar y

DEVOLVED GOVERNMENTS


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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.

Transport and communications.

National public works.

Housing policy.

Tourism policy.

Education policy, standards, curricula, examinations and the granting of university charters.

National statistics.

Labour standards.

Foreign Affairs, Immigration, citizenship.

Courts.

National defence, Police services.

National Government

“Revenue due to county governments is protected by law”

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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.

recognise the right of communities to manage their own affairs.

protect and promote the interests and rights of minorities and marginalised communities.

promote social and economic development and the provision of services throughout Kenya.

ensure equitable sharing of national and local resources throughout Kenya.

facilitate the decentralisation of State organs, their functions and services, from the capital of Kenya;

enhance checks, balances and the separation of powers.

The County Governments

The Proposed Constitution creates 47 county governments. This number is based on the delineation of administrative districts as created under the Provinces and Districts Act of 1992.


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1. Mombasa

2. Kwale

3. Kilifi

4. Tana River

5. Lamu

6. Taita/Taveta

7. Garissa

8. Wajir

9. Mandera

10. Marsabit

11. Isiolo

12. Meru

13. Tharaka-Nithi

14. Embu

15. Kitui

16. Machakos

17. Makueni

18. Nyandarua

19. Nyeri

20. Kirinyaga

21. Murang’a

22. Kiambu

23. Turkana

24. West Pokot

25. Samburu

26. Trans Nzoia

27. Uasin Gishu

28. Elgeyo Marakwet

29. Nandi

30. Baringo

31. Laikipia

32. Nakuru

33. Narok

34. Kajiado

35. Kericho

36. Bomet

37. Kakamega

38. Vihiga

39. Bungoma

40. Busia

41. Siaya

42. Kisumu

43. Homa Bay

44. Migori

45. Kisii

46. Nyamira

47. Nairobi City

Counties

Read the Proposed

Constitution and

Join the Future

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The structure of county government includes:

County assemblies, county executive committees and county 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).

fi sheries.

county health services.

cultural activities.

public entertainment and public amenities.

county transport.

trade development and regulation.

county planning and development.

pre-primary education, village polytechnics, home craft centres and childcare Facilities.

implementation of specifi c national government policies on natural resources, environmental conservation.

county public works and services.

Boundaries of Counties

The boundaries of a county will be drawn and may be altered only by a resolution:

recommended by an independent commission set up for that purpose by Parliament, and

passed by:

– the National Assembly with the support of at least two thirds of all of the members of the Assembly; and

– the Senate with the support of at least two-thirds of all of the county delegations.

The boundaries of a county may be altered when the following factors are put into consideration:

“The county assembly brings services closer to me”


67

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.

County Assemblies

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.

3. members of marginalised groups, including persons with disabilities and the youth, as prescribed by an Act of Parliament.

4. the Speaker, who is an ex offi cio member.

The members in 2 and 3 are to be nominated by political parties in proportion to the seats received in the election in a particular county.

Functions of County Assemblies

The functions include:

making laws for the effective performance of the county government.

exercising oversight over the county executive committee.

receiving and approving plans and policies for:

– managing and exploiting the county’s resources, and

– developing and managing the infrastructure and institutions.

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Eligibility for election to a County Assembly

One is eligible if he/she:

is registered as a voter.

satisfi es educational, moral and ethical requirements prescribed by law.

is either:

– nominated by a political party; or

– an independent candidate supported by at least fi ve hundred registered voters in the Ward concerned.

A person is disqualifi ed from being elected a member of a county assembly if the person:

is a State offi cer or other public offi cer.

has at any time within past fi ve years held offi ce as a member of the Independent Electoral and Boundaries Commission.

has not been a citizen of Kenya for at least ten years before the date of election.

is of unsound mind.

is an undischarged bankrupt.

is serving a sentence of imprisonment of at least six months.

has been found in accordance with any law to have misused or abused a State or public offi ce.

County Executive Committees

The executive authority of the county is vested in the county executive committee.

The committee consists of:

the county governor and the deputy county governor; and

members appointed by the county governor, with the approval of the assembly, from among persons who are not members of the assembly.


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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 committee are accountable to the county governor for the performance of their functions and exercise of their powers. If a vacancy arises in the offi ce of the county governor, the members of the county executive committee cease to hold offi ce but the executive committee of the county, as last constituted remains competent to perform administrative functions until a new executive committee is constituted in case of election.

Functions of county executive committees are to:

implement county legislation.

implement, within the county, national legislation to the extent that the legislation so requires.

manage and coordinate the functions of the county administration and its departments.

prepare proposed legislation for consideration by the county assembly.

provide the county assembly with full and regular reports on matters relating to the county.

County Governor and Deputy County Governor

The county governor is directly elected by the voters registered in the county at a general election for a term of 5 years and, if re-elected, can serve for another fi nal term of 5 years.

To be eligible for election as county governor, a person must be eligible for election as a member of the county assembly.

“Now I can look forward to better management of my county and the resources within it”

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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.

Removal of a County Governor

A county governor may be removed from offi ce 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 offi ce or gross misconduct.

physical or mental incapacity to perform the functions of offi ce of county governor.

Staffi ng of County Governments

A county government is responsible, within a framework of uniform norms and standards prescribed by an Act of Parliament for:

establishing and abolishing offi ces in its public service.

appointing persons to hold or act in those offi ces, and confi rming appointments.

exercising disciplinary control over and removing persons holding or acting in those offi ces.

County Funds/Revenue

The county governments shall raise their own revenue and will further receive a share of revenue raised nationally.

Counties have power to raise revenue through:

property rates.

entertainment taxes.

charges for services.

any other authorised tax imposed by an Act of Parliament.

From the national government, counties will get:

at least 15% share of the annual national revenue.


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a half ( ½)% 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 areas

National legislation shall provide for the governance and management of the capital city, other cities and urban areas.

Relationship Between National and County Governments

Government at either level is required to:

perform its functions in mutual respect to the other, assist, support and consult and, as appropriate, implement the legislation of the other level of government.

liaise with the other governments for the purpose of exchanging information, coordinating policies and administration, and enhancing capacity.

co-operate in the performance of functions and, may also set up joint committees and authorities.

NATIONAL GOVERNMENT

COUNTIES get15% of Annual National Revenue

COUNTIES in marginalized areas getadditional 0.5%

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Meanwhile:

– both governments will make every effort to settle disputes, 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 national government 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.

Obligated to transfer function or power from one level of government to another but:

– arrangements must be put in place to ensure that the resources necessary for the performance of the

function or exercise of the power are transferred; and

– the function will remain a function of the transferring government.

National legislation prevails over county legislation if:

the national legislation applies uniformly throughout Kenya (norms, standards and national policies)

the national legislation is aimed at preventing unreasonable action by a county that:

– is prejudicial to the economic interests of, health or security, nature touching on Kenya or another county; or

– impedes the implementation of national economic policy.

the national legislation deals with a matter that cannot be regulated effectively by legislation enacted by the individual counties (national security; economic unity, common market, cross border activities, equal opportunity or equal access to government services and protection of the environment).


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“At the grassroot, we are entitled to a share of the revenue raised nationally, in addition to our own revenue as a county”

Meanwhile:

Parliament will provide for intervention by the national government if a county government:

– is unable to perform its functions; or

– does not operate a fi nancial management system that complies with the requirements prescribed by national legislation. Such intervention will 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 confl ict or war; or

in any other exceptional circumstances upon independent investigations by a Commission of Inquiry.

Division of Revenue

Once every fi ve years, the Senate, will determine the basis for allocating among the counties the share of

national revenue that is annually allocated to the county governments (not less than 15%).

While doing this, the Senate will consider:

– National interests.

– Public debt and national obligations.

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– Performance of county governments.

– Fiscal capacity and effi ciency of county governments.

– Developmental and other needs of the counties.

– Economic disparities between counties.

– Need for affi rmative 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 fi nance and any organisation of county governments.

invite the public, including professional bodies, to make submissions.

Note:

A county’s share of

revenue raised by the

national government

shall be transferred

to the county without

undue delay or

deduction, except

when the transfer has

been stopped.


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Commissions and Independent Offi ces

The Commissions and Independent Offi ces are established as legal bodies with clear succession mechanisms and can sue or be sued.

The objects of the Commissions and the Independent Offi ces 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 Commissions and holders of Independent Offi ces are:

subject only to the Constitution and the law.

independent and not under control of any person or authority.

The Commission and holder of an independent offi ce are to submit reports annually to the President and to Parliament. Every report will be published and publicized.

The Commissions and Independent Offi ces include:

1. The Kenya National Human Rights and Equality Commission- (to monitor and offer support on issues dealing with human rights)

2. The National Land Commission – (To manage pubic land)

3. The Independent Electoral and Boundaries Commission – (To manage elections, referenda and electoral boundary reviews)

4. The Parliamentary Service Commission – (To provide parliamentary services and facilitaties)

5. The Judicial Service Commission – (To promote and facilitate an independent Judiciary).

6. The Commission on Revenue Allocation – (To make recommendations concerning the basis for the equitable sharing of revenue raised by the national government)

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7. The Public Service Commission – (Management of public service including hiring and fi ring of public offi cers).

8. The Salaries and Remuneration Commission – (set and review the remuneration and benefi ts of all State offi cers).

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 Offi ces are:

– the Auditor-General and

– the Controller of Budget (see page 58).

Each Commission consists of at least three, but not more than nine members. The chairperson and each member of a Commission and the holders of independent offi ce, are to be:

identifi ed and recommended for appointment in a manner that national legislation will provide.

approved by the National Assembly.

appointed by the President.

The appointments are to take into account the National Values and the Principle that the composition of the commissions and offi ces refl ect the regional and ethnic diversity of the people of Kenya. A member of a Commission, or the holder of an Independent Offi ce shall be appointed for a single term of six years and is not eligible for re-appointment. This will however not apply to an ex-offi cio member.

The chairperson and vice-chairperson of a Commission shall not to be of the same gender.

“I will be able to know what Commissions and Independent Offices achieve or fail to, once the Proposed Constitution is passed”

Think Katiba,

Think Kenya

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Leadership and Integrity

Authority assigned to a State offi cer/Public offi cer is a public trust. It is to be demonstrated by respect for the people, honour to the nation, dignity to the offi ce and public confi dence in the integrity of the offi ce. The offi cers 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 fair elections.

objectivity and impartiality in decision making, so as to ensure that decisions are not infl uenced by nepotism, favouritism, other improper motives or corrupt practices.

selfl ess service based solely on public interest, demonstrated by;

– honesty in the execution of public duties; and

– the declaration of any personal interest that may confl ict with public duties;

accountability to the public for decisions and actions.

discipline and commitment in service to the people.

Public servants shall be guided by the following principles and values:

high standards of professional ethics.

effi cient, effective and economic use of resources.

responsive, prompt, effective, impartial and equitable provision of services.

involvement of the people in the process of policy making.

accountability for administrative acts.

transparency and provision to the public of timely, accurate information.

fair competition and merit as the basis of appointments and promotions.


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fairness in the representation of Kenya’s 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 offi cer on a public or offi cial 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 offi cer/Public offi cer 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 benefi t in circumstances that compromise the integrity of the State offi cer.

Restriction on activities

A full-time State offi cer is not to participate in any other gainful employment. Any appointed State offi cer is not allowed to hold offi ce in a political party.

“In view of the Proposed Constitution, our leaders will not be enticed by gifts to compromise them in the conduct of their official duties”


81

Part Three

81

The referendum

Proclamation of the Constitution

From the current to the new Constitution

Legislation to be effected

Amendment of this Constitution

Moving Forward

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

by which they would be governed


83

1. The Referendum

A referendum can be defi ned 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 election of 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.

Conduct of 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 constitution.

The IIEC shall:

phrase the question of the referendum.

announce the day and date of the referendum.

announce polling time.

announce the campaign period.

publish the results within two days.

2. Proclamation of the Constitution

If a “Yes” vote is secured, the President will proclaim the Proposed Constitution as the Constitution of Kenya.

The date of proclamation will be the “effective date” (when) the new Constitution will enter in force. Alternatively, the new constitution shall enter in force after the expiry of a period of fourteen days from the date of the publication in the Gazette, of the fi nal result of the referendum. The current Constitution will stand repealed on the effective date.

“I will know the result of the referendum in 2 days. That way my anxiety will be settled”

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3. From the Current to the New ConstitutionIf 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.

Transitional 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 effective date 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.

The structure known a the Commission on the Implementation of the Constitution (CIC) shall monitor and oversee the implementation of the transitional arrangement.

The CIC will work in conjunction with the Constitutional Implementation Oversight Committee of Parliament.

All the obligations, laws and rights remain as they are until new corresponding arrangements are effected including legislation.

Provincial Administration to be restructured within 5 years.

Institutions created by the Proposed Constitution will take over current corresponding institutions or offi ces.

Necessary legislation will be made by Parliament within 5 years to effect the new Constitution.

Legislation Time period to be effected

Legislation in respect of culture Five years

CitizenshipLegislation on citizenship One year

RightsFreedom of the media Three years

Family Five years

Consumer protection Four years

Fair administrative action Four years

Fair hearing Four years

Rights of persons detained or held in custody Four years

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LandKenya National Human Rights& Equality Commission One year

Community land Five years

Regulation of land use and property Five years

Legislation on land 18 months

Agreements relating to natural resources Five years

Legislation regarding environment Four years

LeadershipEthics and anti-corruption commission One year

Legislation on leadership Two years

RepresentationLegislation on elections One year

Electoral disputes One year

Independent Electoral and Boundaries Commission One year

Legislation on political parties One year

The LegislaturePromotion of representation of marginalised groups Five years

Vacation of offi ce of member of Parliament One year

Right of recall Two years


The Legislature (cont.)Determination of membership of Parliament Two years

Right to petition Parliament Two years

ExecutivePower of mercy One year

Assumption of offi ce of president Two years

JudiciarySystem of courts One year

Removal from offi ce One year

Judiciary Fund Two years

Vetting of judges and magistrates One year

Devolved GovernmentSpeaker of a county assembly One year

Urban areas and cities One year

Support for county governments Three years

Removal of a county governor 18 months

Vacation of offi ce of member of county assembly 18 months

Public participation and county assembly powers, privilegesand immunities Three years

County assembly gender balance and diversity Three years

Legislation to effect Chapter 18 months


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Public FinanceRevenue Funds for county governments 18 months

Contingencies Fund One year

Loan guarantees by national government One year

Financial control Two years

Accounts and audit of public entities Four years

Procurement of public goods and services Four years

Public ServiceValues and principles of public service Four years

National SecurityNational security organs Two years

Command of the National Police Service Two years

GeneralAny other legislation required by this Constitution Five years

4. Amendment of this ConstitutionThere are two ways in which the Constitution may be amended:

1. Parliament and Referendum

For the following provisions to be amended, Parliament must approve, following which a referendum will be held:

supremacy of this Constitution.

territory of Kenya.

sovereignty of the people.

national values and principles.

Bill of Rights.

term of offi ce of the President.

independence of the Judiciary and the Commissions and independent offi ces.

functions of Parliament.

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The following provisions prevail:

The objects, principles and structure of devolved 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. Amendment by popular initiative

An amendment to the Constitution may be proposed by a popular initiative signed by at least one million registered voters. A popular initiative for an amendment to the Constitution may be in the form of a general suggestion or a formulated draft Bill presented to Parliament by IEBC from the petitioning entities.

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New Katiba,

One Kenya

“The new Consti

Documents

Proposed Constitution of Kenya HANDBOOK · KATIBA MPYA, KENYA MOJA – HANDBOOK FOR CIVIC EDUCATION 19 responsibilities of citizens. independent structures that safeguard and guarantee