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Petition To Parliament on Amendment to Article 260 Through Constitution of Kenya (Amendment) Bill 2013

Petition To Parliament on Amendment to Article 260 Through Constitution of Kenya (Amendment) Bill 2013

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Published by Maskani Ya Taifa
The Kenya Parliament is assaulting the new Constitution to enable them increase their remuneration unchecked.

PETITION TO PARLIAMENT UNDER ARTICLES 37 AND 119 OF THE CONSTITUTION, PETITION TO PARLIAMENT (PROCEDURE) ACT AND STANDING ORDERS 219, 223 OF THE NATIONAL ASSEMBLY ON THE CONSTITUTION OF KENYA (AMENDMENT) BILL 2013.

WE, the undersigned,

Citizens of Kenya, drawn from the 47 counties of Kenya representing various non-governmental, quasi-governmental organizations and individuals wish to state that it is in the public interest that we formally lodge this petition concerning the Constitution of Kenya (Amendment) Bill 2013.
The Kenya Parliament is assaulting the new Constitution to enable them increase their remuneration unchecked.

PETITION TO PARLIAMENT UNDER ARTICLES 37 AND 119 OF THE CONSTITUTION, PETITION TO PARLIAMENT (PROCEDURE) ACT AND STANDING ORDERS 219, 223 OF THE NATIONAL ASSEMBLY ON THE CONSTITUTION OF KENYA (AMENDMENT) BILL 2013.

WE, the undersigned,

Citizens of Kenya, drawn from the 47 counties of Kenya representing various non-governmental, quasi-governmental organizations and individuals wish to state that it is in the public interest that we formally lodge this petition concerning the Constitution of Kenya (Amendment) Bill 2013.

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Published by: Maskani Ya Taifa on Oct 25, 2013
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12/02/2013

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PETITION TO PARLIAMENT
To:National Assembly of KenyaC/O The Clerk,Kenya National AssemblyParliament BuildingsP.O Box 41842 - 00100,Nairobi, KenyaCc: Hon. Samuel Chepkonga,Chairperson,Justice and Legal Affairs Committee
RE: PETITION TO PARLIAMENT UNDER ARTICLES 37 AND 119 OF THECONSTITUTION, PETITION TO PARLIAMENT (PROCEDURE) ACT ANDSTANDING ORDERS 219, 223 OF THE NATIONAL ASSEMBLY ON THECONSTITUTION OF KENYA (AMENDMENT) BILL 2013.WE, the undersigned,
Citizens of Kenya, drawn from the 47 counties of Kenya representing variousnon-governmental, quasi-governmental organizations and individuals wish tostate that it is in the public interest that we formally lodge this petitionconcerning the Constitution of Kenya (Amendment) Bill 2013.
We humbly draw the attention of the House to the following:
1.The Constitution of Kenya 2010 reposes all sovereign power in thePeople of Kenya.2.That under Article 1 (3) of the Constitution the People of Kenya havedelegated power to state organs including national and countyassemblies and the judiciary. That delegation is not absolute and can beexercised by the people simultaneously.3.The Constitution of Kenya adheres to the principle of separation of power. This it does so by creating a legislature, executive and judiciarythat are all formally distinct; with distinct functions and independentlystaffed. This separation not only exits at the national plane but alsoextends to the county governments.4.That Article 260 of the constitution provides for the definition of a stateofficer. The effect of the definition of state officers does not detractfrom the doctrine of separation of powers as Article 260 retains therequirement of formal distinction of the various arms of government.National and county assemblies and the judiciary are thus distinct in
 
PETITION TO PARLIAMENT
nature and their members are considered state officers on the basis of their establishment5.The Constitution of Kenya (Amendment Bill) 2013 that was gazetted on12th July 2013 proposes to amend Article 260 of the Constitution byexcluding Members of Parliament, Members of the county assembliesand judges from the definition of state officers.6.The bill presumes that inclusion in the definition at Article 260 of stateofficers from all three arms of government is an infringement of thedoctrine of separation of powers which compromises theirindependence. The supposed purpose of the amendment to Article 260is thus to (I) enhance separation of powers between various arms of government and (ii) strengthen governance.7.The proposed amendment is an affront to the Constitution and ascitizens desirous to achieve good governance and strengthenedinstitutions in Kenya and beyond, we believe the potential impact of that amendment will be a disruption of the existing constitutionalnomenclature.8.That amending Article 260 would usher in impunity as it
underminesthe values and principles of good governance
as provided atArticle 10 of the Constitution and binding to all state officers.9.The amendment further excludes Members of Parliament, Judges andMembers of County Assemblies from
public scrutiny andaccountability under Chapter six of the Constitution.
Chapter Sixlays the foundation for the cultivation of a governance structure that isgrounded on integrity and centered on service to the people byprescribing expectations on state officers while in office. The chapteralso creates the Ethics and Anti- Corruption Commission (EACC) whichhas an oversight authority over all state officers. If passed, theproposed amendment would render the legal and institutionalprovisions of this chapter redundant.10.Article 210(3) restricts state officers from tax exemptions on the basisof their position and nature of their work. Amending Article 260 willserve to exempt Members of Parliament, Judges and Members of CountyAssemblies from tax remittance contrary to the Constitution.11.That article 260 read together with Article 230 of the Constitution,gives the Salaries and Remuneration Commission (SRC) the power toset and review their salaries of state officers. Amending the definition of a state officer as proposed in the bill would mean that the SRC will haveno authority to set and or regulate the salaries of members of 
 
PETITION TO PARLIAMENT
parliament, members of the county assemblies and the judiciaryreducing it to merely playing an advisory role. Further, the nationalassembly will be at liberty to determine their remuneration. This iscontrary to the spirit of the constitution and the will of the citizens.12.That an amendment to Article 260 virtually amends otherconstitutional provisions including Articles 1 (1), 1 (3) on sovereignty of the people, Articles 2(1),(3),(4) on supremacy of the constitution, article10 on national values and principles of governance and Articles 249 (1)and (2) on objects, authority of commissions and independent offices.13.That Article 255 of the constitution provides that any amendmentstouching on the supremacy of the Constitution, sovereignty of theConstitution, national values and independence of commissions canonly be approved by citizens through a referendum. Further, Article 256(2) requires parliament to facilitate public discussions on any bill thatseeks to amend the Constitution. These provisions have not beenadhered to and majority of Kenyans have not been sufficientlyconsulted in the articulation of the proposed amendment.14.The proposed amendment is therefore tantamount to
a betrayal of oath of office
by Members of Parliament, Judges, and Members of County Assemblies. All state officers were sworn in accordance with theprovisions of the Constitution and thus attempts to violate the sameConstitution by amending Article 260 will no doubt strip them of theircurrent status. As a consequence, they will have to seek fresh mandatefrom the people of Kenya.
THAT
15.To the best of our knowledge this matter has been initiated by theNational Assembly and has gone through the first reading of theNational Assembly. 
THAT
16.To the best of our knowledge there is no matter before the courts onthe unconstitutionality of the Constitution of Kenya (Amendment) Bill2013.
THEREFORE your humble petitioners PRAY that the honorableParliament of the Republic of Kenya:
17.Initiate a motion to withdraw the Constitution of Kenya (Amendment)Bill 2013

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