Committee of Experts on Constitutional Review

HANDBOOK

Proposed Constitution of Kenya

for Civic Education

HANDBOOK

Proposed Constitution of Kenya

for Civic Education

Consultants
Committee of Experts on Constitutional Review

Gideon Ochanda
Proposed Constitution of Kenya

Content Developer/Lead Consultant Message Developer Translation - English to Kiswahili Illustrations Graphic Design and Layout

HANDBOOK

Ngari Gituku Clara Momanyi John Nyagah Lilian Ohayo

for Civic Education

© Committee of Experts 2010

Contents
Acknowledgement Foreword 4 7
Provisions of the Proposed Constitution
Citizenship Land The Bill of Rights Elections Political Parties Arms of Government The Executive The Judiciary Funding for National Government

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34 36 40 42 44 45 47 53 56 62 75 78

The Committee of Experts (CoE) 8

Comparative Matrix between the current Constitution and the Proposed Constitution 10
Deputy Directors 13

Part One Background Information
The purpose of the Handbook Some Basics What is a Constitution?

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16 18 18

Devolved Governments Commissions and Independent Offices Leadership and Integrity

What Kind of Constitution have Kenyans been looking for? 19 Attempted Changes 21

Part Three Moving Forward
The Referendum Proclamation of the Constitution

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83 83 85 87

Part Two The Proposed Constitution
The Review Process Roadmap The Foundation Framework

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27 29 30 31

From the Current to the New Constitution Amendment of this Constitution

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Acknowledgement
he Handbook, Curriculum and Manual on Civic Education on the Proposed Constitution are the handiwork of team effort. It has definitely taken quite some burning of midnight oil, thought and skill. The current look and tone of this Handbook is indeed a fine mosaic of valuable expertise. I am therefore confident 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, specifically Members Bobby Mkangi, Dr. Chaloka Beyani, Abdirashid Abdullahi and Prof. Christina Murray, for both setting the tempo of this document, and finding 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 Officer, 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.

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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 Office 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.

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a, atiba Mpy K ja Kenya Mo

Foreword

W

hen the Committee of Experts (CoE) was tasked to unlock the process that would Comm 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 benefits 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 benefit 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.

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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 Review Act 2008. The CoE comprises eleven members nominated by Parliament and appointed by the President.

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1

5 2 3

The members are: 1. Nzamba Kitonga (Chairperson) 2. Atsango Chesoni (Vice Chairperson) 3. Prof. Fredrick Ssempebwa

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4. Otiende Amollo 5. Dr. Chaloka Beyani 6. Hon. Njoki Ndung’u 7. Bobby Mkangi 8. Abdirashid Abdullahi 9. Prof. Christina Murray

9 11 The CoE mandate
identify both contentious and agreed on issues receive public views carry out thematic consultations

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Ex-officio 10. Hon. Amos Wako 11. Dr. Ekuru Aukot

prepare Harmonized Draft Constitution prepare Proposed Constitution facilitate civic education liaise with Electoral Commission for purposes of the referendum

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COMMITTEE O EXPERTS N CONSTITUTI Comparative FMatrixObetweenO N A L R E V I E W The current Constitution and the Proposed Constitution

ISSUE

THE CURRENT CONSTITUTION

THE PROPOSED CONSTITUTION
Preamble National Values, Principles and Goals are set

Basics: Setting basis and reason for the Constitution

Nil

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

Ownership/ Membership/ Individual Rights/ Obligations

Sovereignty is placed on the Republic Limited Rights

Provides for dual citizenship Either parents recognized to confer citizenship

Discriminates between categories of citizens

Citizenship

No dual citizenship

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KATIBA MPYA, KENYA MOJA Comparative Matrix between The current Constitution and the Proposed Constitution

H A N D B O O K F O R C I V I C E D U C AT I O N

ISSUE

THE CURRENT CONSTITUTION

THE PROPOSED CONSTITUTION

– Governing Structures – Leadership code – National Executive – Judiciary – Parliament

No leadership code Centralized structure of Government All powerful presidency No clear separation of powers Role of Parliament is weak No independent candidates No Supreme Court No recall of MPs

Clear leadership code Government broken down to 2 levels A strong national and a strong county government Roles between levels clear cut Two chambers of Parliament with enhanced roles An independent Judiciary, Provides for a Supreme Court President as Head of State Presidential actions sanctioned by Parliament Checks and control institutions provided Cabinet limited to a maximum of 24 and drawn from outside Parliament Independent candidates can stand for elections Recall of MPs

Devolution
No devolved government Provides for devolved government Functions/competencies listed, sources of funding for the levels provided

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COMMITTEE O EXPERTS N CONSTITUTI Comparative FMatrixObetweenO N A L R E V I E W The current Constitution and the Proposed Constitution

ISSUE

THE CURRENT CONSTITUTION

THE PROPOSED CONSTITUTION
Fair and equitable allocation and distribution of resources

Public resources

Inequitable distribution of resources criteria Other land ownership categories recognized/tenures are provided Provision on the Land Commission Land belongs to the people collectively

Land
Only trust land is recognized Land is held and controlled centrally No safeguards on landholding Land is vested in the President and the county councils

Clear functions provided for Public funding allowed for parties Independent Electoral and Boundaries Commission allowed to regulate political party nomination processes

Not constitutionally recognized apart from the role in clearing candidates

Politica partie Political partie Political parties ies

12 2

The Deputy Directors are: 1. Veronica Nduva
Civic Education, Mobilization & Outreach

Deputy Directors

2. Peter Ayugi

Finance & Administration

3. Dr. Michael Chelogoy
Research, Drafting and Technical Support

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1

4. Vitalis Musebe

Public Information & Media

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.

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4

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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?

Part One
Background Information

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The Purpose of the Handbook

P

rimarily, 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. Specifically, 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.

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H A N D B O O K F O R C I V I C E D U C AT I O N

A constitution is a social contract. It binds members of a group together
and provides a framework for them to realise their dreams

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COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

Some Basics
What is a Constitution?

establish government structures, authorities, positions and offices. provide structures/offices/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 benefits of citizens.

A
“The Proposed Constitution will create, protect and set rules to manage institutions that guarantee my prosperity”

constitution is a general understanding among members of a 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 Important? Constitutions are important because they: define 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.

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H A N D B O O K F O R C I V I C E D U C AT I O N

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 power both horizontally and vertically. participation of citizens in the overall governance and at immediate levels. provision for equality and affirmative 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 socioeconomic, 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”

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COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

provides for a devolved government. provides for equitable distribution of resources and opportunities. contains affirmative action and prohibits all discrimination.

“A new constitution will guarantee my security, freedom and rights”

a atiba Mpy K e, ee, Jiamuli Jisom Jichagulie
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H A N D B O O K F O R C I V I C E D U C AT I O N

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”

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COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

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 socioeconomic 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.

Weaknesses in the Current Constitution

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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.

KATIBA MPYA, KENYA MOJA

H A N D B O O K F O R C I V I C E D U C AT I O N

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

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

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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

Part Two
The Proposed Constitution

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COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

The process leading to the Proposed Constitution started in December 2008 as one of the pillars of the national accord

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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 “My aspirations the draft constitution with or are enshrined without amendments for onward in the Proposed submission to the Attorney General. The Reference Group Constitution” 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 officio 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).

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H A N D B O O K F O R C I V I C E D U C AT I O N

Review Process and Roadmap 14 2 30 30 30 30 7 21 21 21 30 160

Publication & promulgation of the New Constitution of Kenya Notification 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 Identification 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

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Days

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

The main steps in the review process

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COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

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 affirmative 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:

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

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.

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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 defining who we are as a people, our sovereignty and citizenship, individual rights, “The new Constitution how the individuals are to relate guarantees me to the governing institutions, and have access to natural sovereign power and resources. Secondly, it deals with how the needs of Kenyans are fulfilled. It lays down a leadership and integrity code to enable public institutions to work in the interest of the people.

allows Kenyans to express themselves through their elected leaders”

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Provisions of the Proposed Constitution

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Citizenship Land The Bill of Rights

The Judiciary Funding for the National Government Leadership and Integrity

Elections County Governments Political Parties Establishment of Parliament The Executive Commissions and Independent Offices

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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.

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

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.

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COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

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. 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 identified. 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.

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

land that is: – held, managed or used by specific 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 “

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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

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”

Parliament is mandated to make legislation to: revise, consolidate and rationalise existing land laws. revise sectoral land use laws.

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

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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 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 officers (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.

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COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

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. 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.

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

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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 code of conduct for candidates and parties contesting elections. monitoring compliance with the electoral laws. supervising referenda and elections to any elective body or office established by this Constitution. review the number, names and boundaries of constituencies at intervals of eight and twelve years.

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

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Political 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. 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”

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Arms of Government
Parliament Parliament is established and consists of two Houses; the National Assembly and the Senate. National Assembly
Consists of:

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 office 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”

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 officio member.

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The Senate
Consists of:

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 officers. 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 fifty members for the National Assembly and fifteen members for the Senate.

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 officio member. The Senate: represents the counties, and serves to protect the interests of the counties and their governments.

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

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The Executive
The national executive of the Republic comprises the President, the Deputy President, and 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 fulfilled.

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,

“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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COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

Election of the President

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-five 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 office, 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 office, the Speaker of the National Assembly will act as President and a fresh

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 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.

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

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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 President’s health, violation of the country’s laws or gross misconduct. Vacancy in the office of President When the office of President becomes vacant , the Deputy President will assume office 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 office 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 twentytwo Cabinet Secretaries (equivalent of Cabinet Ministers). A Cabinet Secretary cannot be a Member of Parliament.

“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”

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Secretary to the Cabinet There will be a Secretary to the Cabinet, whose functions 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. 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 office 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.

“I expect more efficient services from the Government”

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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, atiba Mpy K a ya Kenya Tib

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

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The Judiciary

Supreme Court The Supreme Court consists of the Chief Justice, who is the President of the court, the Deputy Chief Justice and five 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-five years.

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 officers and staff. There is a Chief Registrar of the Judiciary, who is the chief administrator and accounting officer.

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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.

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.

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Structure of the Judiciary
C PREME COU RT CHIEF J U S T I C E SUH I E F JU STICE

COU RT OF A PPEA L

SUP ERIOR C OURTS

SPE C I AL CO U R TS
e.g. on land, labour, environment

HIGH COU RT

SU BORD IN A TE COU RTS
– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – MA GISTRA TES’ – – – – – – – – – – COU RTS – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –

TR I B U N A L S
e.g.on rent & business premises

KADH IS’ C OURTS

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Funding for the National Government

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

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 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).

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 insufficient. This can also be done with a need for expenditure or if the withdrawal is from the Contingencies Fund.

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Financial control

Controller of Budget

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 financial 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 be implemented. 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 is accountable to the county assembly for its financial management. The accounts of all governments and State organs are to be audited by the Auditor-General.

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 office audits and reports on annual accounts of: the national and county governments; all courts. every Commission and Independent Office. 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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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.

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

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NAT I ONA L GOV ER NM ENT
Executive Pa rl ia ment Ju d ic ia r y

N A TI O N A L L E G I S L ATION / F U N D S/ NA TIONA L POL ICIES/ STA NDARDS

DEVOLVED GOVERNMENTS
county as s emblies

4 7 CO U N T I ES
c o u nty p u b l ic s erv ic e

c o u nty exec u tiv e c o mmitte e s

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National Government
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.

“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.

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.

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.

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Counties
1. 2. 3. 4. 5. 6. 7. 8. 9. Mombasa Kwale Kilifi Tana River Lamu Taita/Taveta Garissa Wajir Mandera 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

10. Marsabit 11. Isiolo 12. Meru

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he Proposed Read t d stitution an Con ure oin the Fut J

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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). fisheries. 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 specific 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 county assembly brings services closer to me”

– 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:

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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.
County Assemblies

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.

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 officio member.

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Eligibility for election to a County Assembly

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 office.

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 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.

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 office of the county governor, the members of the county executive committee cease to hold office 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.

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

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 final 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.

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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

appointing persons to hold or act in those offices, and confirming appointments. exercising disciplinary control over and removing persons holding or acting in those offices.
County Funds/Revenue

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 of County Governments

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.

A county government is responsible, within a framework of uniform norms and standards prescribed by an Act of Parliament for: establishing and abolishing offices in its public service.

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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

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

NATIONAL GOVERNMENT

COUNTIES get 15% of Annual National Revenue

COUNTIES in marginalized areas get additional 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.

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).

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

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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 financial 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 conflict or war; or in any other exceptional circumstances upon independent investigations by a Commission of Inquiry.
Division of Revenue

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.

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

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

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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. 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 Offices
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 Commissions and holders of Independent Offices 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 office are to submit reports annually to the President and to Parliament. Every report will be published and publicized. The Commissions and Independent Offices 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 firing 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). 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 office, are to be:

identified 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 offices reflect the regional and ethnic diversity of the people of Kenya. A member of a Commission, or the holder of an Independent Office 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-officio 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”

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a, hink Katib T ya T hink Ken

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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

selfless service based solely on public interest, demonstrated by; – honesty in the execution of public duties; and – the declaration of any personal interest that may conflict 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. efficient, effective and economic use of resources.

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 influenced by nepotism, favouritism, other improper motives or corrupt practices.

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 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 officer.

Restriction on activities

A full-time State officer is not to participate in any other gainful employment. Any appointed State officer is not allowed to hold office 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”

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The referendum Proclamation of the Constitution From the current to the new Constitution Legislation to be effected Amendment of this Constitution

Part Three
Moving Forward

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A referendum gives citizens a voice to set the terms of government and standards by which they would be governed

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1. The Referendum
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 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 final 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 Constitution
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. 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 offices. Necessary legislation will be made by Parliament within 5 years to effect the new Constitution.

Legislation Legislation in respect of culture

Time period to be effected Five years

Citizenship
Legislation on citizenship One year

Rights
Freedom of the media Family Consumer protection Fair administrative action Fair hearing Rights of persons detained or held in custody Three years Five years Four years Four years Four years Four years

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Legislation

Time period to be effected

Legislation

Time period to be effected

Land
Kenya National Human Rights & Equality Commission Community land Regulation of land use and property Legislation on land Agreements relating to natural resources Legislation regarding environment One year Five years Five years 18 months Five years Four years

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

Executive
Power of mercy Assumption of office of president One year Two years

Judiciary
System of courts Removal from office Judiciary Fund Vetting of judges and magistrates One year One year Two years One year

Leadership
Ethics and anti-corruption commission Legislation on leadership One year Two years

Representation
Legislation on elections Electoral disputes Independent Electoral and Boundaries Commission Legislation on political parties One year One year One year One year

Devolved Government
Speaker of a county assembly Urban areas and cities Support for county governments Removal of a county governor Vacation of office of member of county assembly Public participation and county assembly powers, privileges and immunities County assembly gender balance and diversity Legislation to effect Chapter One year One year Three years 18 months 18 months

The Legislature
Promotion of representation of marginalised groups Vacation of office of member of Parliament Right of recall Five years One year Two years

Three years Three years 18 months

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KATIBA MPYA, KENYA MOJA

H A N D B O O K F O R C I V I C E D U C AT I O N

Legislation

Time period to be effected

4. Amendment of this Constitution
There 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 office of the President.

Public Finance
Revenue Funds for county governments Contingencies Fund Loan guarantees by national government Financial control Accounts and audit of public entities Procurement of public goods and services 18 months One year One year Two years Four years Four years

Public Service
Values and principles of public service Four years

National Security
National security organs Command of the National Police Service Two years Two years

General
Any other legislation required by this Constitution Five years

independence of the Judiciary and the Commissions and independent offices. functions of Parliament.

87

COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

The following provisions prevail:
The objects, principles and structure of devolved government:

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.

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.

“The new Constitution provides for amendments through several channels”

a, New Katib One Kenya
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KATIBA MPYA, KENYA MOJA

H A N D B O O K F O R C I V I C E D U C AT I O N

89

A good Constitution acknowledges the past, rides on the present and anticipates prospects the future holds for the majority.

90

Notes
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Notes
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COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW Delta House Waiyaki Way, Westlands P.O. Box 8703 00200 Nairobi Tel: 020 444 32 14/15/16, 252 7152; Fax: 020 444 32 11/ 252 6959 info@coekenya.go.ke

www.coekenya.go.ke

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