Committee of Experts

on Constitutional Review

Proposed Constitution of Kenya

HANDBOOK for Civic Education

Proposed Constitution of Kenya

HANDBOOK
for Civic Education
 Consultants
Committee of Experts
on Constitutional Review

Gideon Ochanda Content Developer/Lead Consultant

Proposed Constitution of Kenya

Ngari Gituku Message Developer
HANDBOOK for Civic Education
Clara Momanyi Translation - English to Kiswahili

John Nyagah Illustrations

Lilian Ohayo Graphic Design and Layout

© Committee of Experts 2010

Contents
Provisions of the Proposed
Acknowledgement 4 Constitution 32
Citizenship 34
Foreword 7
Land 36
The Bill of Rights 40
The Committee of Experts (CoE) 8
Elections 42
Comparative Matrix between Political Parties 44
the current Constitution and
the Proposed Constitution 10 Arms of Government 45
The Executive 47
Deputy Directors 13
The Judiciary 53

Part One Funding for National Government 56

Background Information 15 Devolved Governments 62

The purpose of the Handbook 16 Commissions and
Some Basics 18 Independent Offices 75

What is a Constitution? 18 Leadership and Integrity 78

What Kind of Constitution have Kenyans

Part Three
been looking for? 19
Moving Forward 81
Attempted Changes 21
The Referendum 83

Part Two Proclamation of the Constitution 83

The Proposed Constitution 25 From the Current to the

The Review Process 27 New Constitution 85

Roadmap 29 Amendment of this Constitution 87

The Foundation 30
Framework 31

3
 Acknowledgement

T
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.

4
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.

5
 a t i b a M p ya,
K
ja
Kenya Mo
Foreword

W
hen the Comm
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 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.

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 4
appointed by the President.

2 3
 The members are:
1. Nzamba Kitonga
(Chairperson)

2. Atsango Chesoni
(Vice Chairperson) 8
3. Prof. Fredrick
Ssempebwa
7
4. Otiende Amollo

5. Dr. Chaloka Beyani

6. Hon. Njoki Ndung’u

7. Bobby Mkangi
9
8. Abdirashid
Abdullahi 11

9. Prof. Christina The CoE mandate

Murray
„ identify both contentious and agreed on issues
„ receive public views
„ carry out thematic consultations
6 Ex-officio „ prepare Harmonized Draft Constitution
10. Hon. Amos Wako „ prepare Proposed Constitution 10
„ facilitate civic education
11. Dr. Ekuru Aukot
„ liaise with Electoral Commission for purposes of the referendum
 Comparative
C O M M I T T E E O FMatrix
E X P E R T S Obetween
N CONSTITUTIONAL REVIEW

The current Constitution and the Proposed Constitution

ISSUE THE CURRENT CONSTITUTION THE PROPOSED CONSTITUTION

Preamble
National Values, Principles and Goals are set

Basics: Setting
Nil
basis and
reason for the
Constitution

Sovereignty belongs to the people

Expanded Bill of Rights including socio-economic,
cultural and group rights

Ownership/
Membership/ Sovereignty is placed on the
Republic
Individual
Limited Rights
Rights/
Obligations

Provides for dual citizenship

Either parents recognized to confer citizenship

Discriminates between categories

of citizens
No dual citizenship
Citizenship

10
Comparative Matrix between 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 current Constitution and the Proposed Constitution

ISSUE THE CURRENT CONSTITUTION THE PROPOSED CONSTITUTION

Clear leadership code

– Governing No leadership code Government broken down to 2 levels
Structures Centralized structure of A strong national and a strong county government
Government
Roles between levels clear cut
– Leadership All powerful presidency
Two chambers of Parliament with enhanced roles
code No clear separation of powers
An independent Judiciary, Provides for a Supreme
– National Role of Parliament is weak Court
Executive No independent candidates President as Head of State
– Judiciary No Supreme Court Presidential actions sanctioned by Parliament
– Parliament No recall of MPs 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

11
 Comparative
C O M M I T T E E O FMatrix
E X P E R T S Obetween
N CONSTITUTIONAL REVIEW

The current Constitution and the Proposed Constitution

ISSUE THE CURRENT CONSTITUTION THE PROPOSED CONSTITUTION

Fair and equitable allocation and distribution
of resources

Inequitable distribution of
Public resources 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 Clear functions provided for
landholding Public funding allowed for parties
Land is vested in the Independent Electoral and Boundaries Commission
President and the county allowed to regulate political party nomination
councils processes

Not constitutionally recognized

apart from the role in clearing
candidates
Political
P
Po
olliittiica
cal parties
pa
part
rtie
ie
ies

12
2
The Deputy Directors are:
Deputy Directors
1. Veronica Nduva
Civic Education, Mobilization
& Outreach

2. Peter Ayugi
Finance & Administration

3. Dr. Michael Chelogoy

Research, Drafting and 1
2
Technical Support

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
3
to the Committee are judiciously
executed. Their charge included the
implementation of various decisions,
proposed actions and ideas from various 4
institutions as well as individuals
involved in the review process.

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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

Part One
Handbook as part
of the mandate

The Purpose of
the Handbook

Understanding
some basics

Background Information
What is a Constitution?

Why are Constitutions

necessary?

What kind of Constitution

have Kenyans been
looking for?

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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

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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 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

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?
A
constitution is a general
understanding among members of
a group who have identified their
common interests/needs and how the interests
“The Proposed may be achieved. This understanding is
sometimes referred to as organizational rules.
Constitution
will create,
protect and set Why are Constitutions Important?
rules to manage
Constitutions are important because they:
institutions that
„ define and give identity to individuals/
guarantee my members who come together.
prosperity” „ determine members'/citizens'
responsibilities i.e. participation in
elections, paying of taxes, monitoring
government programmes, etc.
18
„ 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.
 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

„ responsibilities of citizens. What Kind of Constitution have Kenyans been

looking for?
„ independent structures that safeguard and guarantee
citizens’ rights and benefits. From the views collected by the Constitution of Kenya
„ equitable distribution of resources. Review Commission (CKRC) in 2004, and subsequently
by the Committee of Experts, Kenyans want a
„ clear separation of roles and powers.
constitution that:
„ clear checks and balances on power
„ recognizes them, their values and aspirations.
both horizontally and vertically.
„ safeguards and respects the rule of law.
„ participation of citizens in the
overall governance and at „ promotes peoples’ involvement and effective
immediate levels. participation in government.
„ provision for equality „ expands the Bill of Rights to include socio-
and affirmative action economic, and cultural rights and group rights.
for the minorities and the „ checks the powers of the President.
marginalized.
„ clearly allocates and separates powers of State
“The Proposed organs.
Constitution shall „ promotes understanding, transparency and
control the power accountability in public affairs.

that our leaders „ creates proper checks and balances in governance.

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 t i b a M p ya
K
e e, J i a m u lie,
Jisom
Jichagulie

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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

Attempted Changes

Due to the weaknesses listed, there have been various In 2005, a referendum was taken on a draft constitution,
attempts to change the constitution, since1998. which was voted against.

“I deserve a constitution that enables

me to live my dreams and those of my
children, to the fullest”

21
 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW
 Does not adequately address the
identity of Kenyans and what

Â
brings them together.

 Does not provide for purpose,

goals and values that Kenyans
are to pursue as a people.

 Does not adequately address the

Weaknesses in the relationship between the people,
the Government and the State.
Current Constitution
 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.

22
 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
 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. “The old
constitution is
 No Supreme Court. blind to many
areas that can
ensure me equal
 Does not provide for devolved opportunities
government. or accountable
governance”
 Does not provide for means of equitable
distribution of resources.

23
 Unlike the old constitution, the proposed one has safeguards,
checks and guarantees individual rights and liberties

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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

Part Two
The review process

The foundation of the

Proposed Constitution

Framework for the

Proposed Constitution

Provisions of the
Proposed Constitution
CITIZENSHIP
LAND
The Proposed Constitution
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

25
 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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 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 Proposed Constitution The mandate of CoE has already

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.
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
without amendments for onward are enshrined
submission to the Attorney in the Proposed
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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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

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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

Review Process and Roadmap

Publication & promulgation
14 of the New Constitution of Kenya
2 Notification of the public on
Referendum results by IIEC
30 Referendum

30 Committee to conduct civic education

9
30 The AG to publish the Draft Constitution

30 The National Assembly to approve the Draft

7 Then PSC to table the report to the National Assembly

21 PSC to reach an agreement on the Draft and have the committee

review the same and resubmit to PSC
21 Committee to present Draft to PSC

9
Consideration of views of the public and integration of the views of
21 the draft and the report
Committee to publish its report and Harmonized Draft Constitution and receive
30 public views on the same
160 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

9
Shortlisting and interviewing candidates for positions as experts

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

Days The main steps in the review process

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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

The Foundation of the Proposed constitution „ promote peoples’ participation in government i.e. in
elections, exercise of power and participation in the
The basis of the Proposed Constitution is derived from
management of public affairs.
the objects of reviewing the current Kenyan
constitution. These includ provisions „ respect ethnic and regional diversity.
that: „ ensure provision of basic needs of all Kenyans.
„ guarantee peace, national unity and „ promote and facilitate regional and international
the integrity of the Republic of cooperation.
Kenya.
„ establish a free and Based on the above objects, the Proposed Constitution is
democratic system of founded on the following principles:
government that guarantees 1. All sovereign power belongs to the people of
good governance, “The Proposed Kenya, exercisable at the national and county levels
constitutionalism, rule of Constitution of government and only in accordance with the
law, human rights, gender Constitution.
reassures me of
equity and equality, and
affirmative action. continued peace, an 2. The people may exercise their sovereign power either
atmosphere of unity directly or through their democratically elected
„ recognize and place representatives.
responsibility among State and my integrity as
organs so as to enhance 3. The Constitution is the supreme law of the Republic
a Kenyan”
checks and balances and and binds all persons and all State organs at both
accountability of the levels of government.
Government to the people.

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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

4. Authority under this Constitution is delegated to the Framework of the Proposed

National Executive, Parliament, the Judiciary and Constitution
devolved governments.
5. Every person has an obligation to respect, uphold The Proposed Constitution places the
and defend the Constitution. supreme law into two broad areas.
First, it deals with defining who we are
6. The constitution provides for national values and as a people, our sovereignty and
principles of governance which include: citizenship, individual rights,
– patriotism, national unity, sharing and devolution how the individuals are to relate “The new Constitution
of power, the rule of law, democracy and to the governing institutions, guarantees me
participation of the people. and have access to natural sovereign power and
resources.
– human dignity, equity, social justice, inclusiveness, allows Kenyans to
equality, human rights, non-discrimination and Secondly, it deals with how the express themselves
protection of the marginalized. needs of Kenyans are fulfilled.
through their elected
– good governance, integrity, transparency and It lays down a leadership and
integrity code to enable public leaders”
accountability; and sustainable development.
institutions to work in the
– protection of fundamental freedoms and human
interest of the people.
rights.

31
Provisions of the Proposed Constitution

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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

Citizenship The Judiciary

Land Funding for the National

Government
The Bill of Rights
Leadership and Integrity
Elections
County Governments
Political Parties
Commissions and Independent
Establishment of Parliament Offices

The Executive

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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

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
As a Kenyan
a Kenyan.
citizen by birth,
I will not lose my
2. By Registration
citizenship if I
Applies to:
acquire citizenship
„ a person who has been married to a citizen for at least 7 years.
of another country
„ 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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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

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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.
36
„ 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.
 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

„ all rivers, lakes and other water bodies. „ land that is:
„ the territorial sea, the exclusive economic zone and – held, managed or used by
the sea bed. specific communities as
community forests, grazing areas
„ the continental shelf. or shrines;
„ all land between the high and low water marks. – ancestral lands and lands
„ any other land declared to be public land by traditionally occupied by hunter
an Act of Parliament. gatherer communities; or
– held as trust land by the county
Community land governments, but not including
any public land held in trust by
Community land consists of: the county government.
„ land registered in the name of group
representatives. Any unregistered community land is to
„ land transferred to a specific be held in trust by county governments
“The Proposed on behalf of the communities for which
community.
Constitution it is held.
„ any other land declared to be
guarantees me
community land by an Act of
Parliament, and the protection
of community
land “

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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

Private land „ enact legislation to:

Private land consists of: – prescribe minimum and maximum land holding
acreages in respect of private land.
„ registered land held by any person under
freehold tenure. – regulate the manner in which any land may be
converted from one category to another.
„ land held by any person under leasehold
tenure. – regulate the recognition and protection
of matrimonial property and in particular
„ any other land declared private land under the matrimonial home during and on the
an Act of Parliament. termination of marriage.
– protect, conserve and provide access to all public
Legislation on land land.
“Because of a Parliament is mandated to make legislation to: – enable the review of all grants or dispositions of
new constitution, public land.
„ revise, consolidate and rationalise existing
I can now dream land laws. – protect the dependants of deceased persons
of owning land holding interests in any land, including the
„ revise sectoral land use laws.
privately without interests of spouses in actual occupation of land.

fear of losing it”

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

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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

The Bill of Rights

Rights belong to individuals and are not Your rights in the Constitution include:
granted by the State. Human rights are The right to life Freedom of conscience,
religion and belief
entitlements that human beings have. The right to equality
and to be free from Freedom of expression and
discrimination. assembly
The purpose of recognising and protecting human Rights of the family Freedom of the media and
rights and fundamental freedoms is: the right to information
Human dignity
Political rights
„ to preserve the dignity of individuals and The right to freedom and
communities. Freedom of association
security of the person
Freedom of movement
„ to promote social justice. Freedom from slavery
Right to property
The right to privacy
„ to allow for the realisation of the potential of all Right to fair working
human beings. Rights to food, water, conditions
health care, education, The right to a fair trial
„ to show that it is the duty of the State and every housing and social security
State organ and state officers (together sometimes referred
to as duty bearers) to observe, respect, protect and There are also special provisions in the Proposed Constitution for:
promote fundamental freedom and individual rights. „ Women
„ to ensure that every individual in the society is „ Young people
covered including women, older members of society, „ Children
persons with disabilities, children, youth, members „ Older members of society
of minority or marginalised communities, and
religious or cultural communities. „ Persons with disabilities
„ Minorities and marginalized groups
„ to ensure that every person has the right to start
court proceedings when a right or fundamental These provisions require the State to take special care of
freedom has been denied, violated or infringed, or is these groups of people.
threatened.
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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

Elections allows independent candidates to contest

in elections. For one to qualify as an
independent candidate, the person
General elections are to be conducted every
must not to be a member of a registered
five years on second Tuesday of August political party or must not have been
for all the elective positions in the country. a member of any party for at least
elective positions are President, Deputy three months before the date of
the election.
President, MPs, Senators, governors and
members of county assemblies. The boundaries for all the
electoral areas are to be “The constitution
drawn by an Independent allows me to vie
In order to participate in the elections a person has to Electoral and Boundaries for an elective
register as a voter. Commission (IEBC). The seat as an
commission is responsible for: independent
To register as a voter, a person must:
„ the continuous registration candidate”
„ be a citizen of 18 years or above.
of citizens as voters.
„ be of sound mind.
„ the regular revision of the
„ not been convicted of an election offence. voters roll.
„ registered at only one registration centre. „ the delimitation of constituencies and wards.
„ the regulation of nomination of candidates by
Candidates to elections are to be nominated by their political parties.
respective political parties. However, the Constitution

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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

„ 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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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

Political Parties „ engage in or encourage violence by, or intimidation

of its members, supporters, opponents or any other
The new Constitution allows political parties to be
person.
formed so long as they:
„ establish or maintain a paramilitary force, militia or
„ have a national character. similar organisations.
„ have a democratically elected governing body. „ engage in bribery or other forms of corruption.
„ promote and uphold national unity. „ accept or use public resources to promote its interests
„ abide by the democratic practices through regular, or its candidates in elections.
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.
“Whichever party
A political party is not allowed to: I choose to join
will be Kenyan by
„ be founded on a religious, linguistic, racial, ethnic,
gender or regional basis. character”

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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

Arms of Government The National Assembly represents the people

at the constituencies and those with special
interests. Its functions are to:
Parliament
„ make national laws.
Parliament is established and consists of two Houses; the
National Assembly and the Senate. „ determine the allocation of national
revenue. “My views were
National Assembly „ approve funds for expenditure by the collected,
national government. and I said I want
Consists of:
„ exercise oversight over national a constitution
„ two hundred and ninety members elected by the revenue and national expediture.
registered voters of every constituency. that recognizes
„ review the conduct in office of the
„ forty-seven women each elected by the registered executive.
my aspirations,
voters of the counties. and which
„ approve declarations of war and
„ twelve members nominated by parliamentary extensions of states of emergency. respects the rule
political parties according to their proportion of
members of the National Assembly, to represent „ appove appointments made by the of law”
special interests including the youth, persons with President.
disabilities and workers.
„ the Speaker, who is an ex officio member.

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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

The Senate „ participates in law-making particularly at

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
officio member.
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.

The Senate: “A two chamber

House provides
„ represents the counties, and serves
me with better
to protect the interests of the
counties and their governments. governance by
instituting an
efficient system
of checks and
46 balances”
 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 Executive – Principal Secretaries,

– High Commissioners, ambassadors and
diplomatic and consular representatives.
The national executive of the Republic
comprises the President, the Deputy President, „ chairs Cabinet meetings.
and the Cabinet. „ directs and co-ordinates the functions
of Ministries and government
departments.
“I have a greater
„ receives foreign diplomatic and
The President: consular representatives. say on who my
„ confers honours in the name of President will be
„ is the Head of State and Government.
the people and the Republic. and how long he/
„ is the Commander-in-Chief of the Kenya Defence
„ declares a state of emergency. she may be at the
Forces.
„ with the approval of helm”
„ is the chairperson of the National Security Council.
Parliament, may declare war.
„ nominates, with the approval of the National
Assembly, appoints, and may dismiss: „ ensures that the international
obligations of the Republic are
– Cabinet Secretaries, fulfilled.
– the Attorney-General,
– the Secretary to the Cabinet,

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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:

The President is to be elected by registered voters in a „ more than half of all the votes cast in the election.
general election for a term of 5 years and, if re-elected, „ at least twenty-five per cent of the votes cast from
can serve for another term of 5 years. more than half of the counties.
A person is qualified to be nominated as a
presidential candidate if she/he: In case no candidate is elected, a fresh election is
held within the next thirty days between the top two
„ is a citizen by birth.
candidates. The results of the winning presidential
„ is qualified to stand for election as a member of candidate must be declared in 7 days. The President
Parliament. has to be sworn in public by the Chief Justice, on
„ is nominated by a political party, or is an a Tuesday, 14 days after declaration of results.
independent candidate. If the President-elect dies after being declared
„ is nominated by not fewer than two winner but before assuming office, the
thousand voters from more than half Deputy President-elect is sworn in as
of the counties.
“Before I cast my acting President on the date when the
vote, I will have an President-elect would have been sworn in
„ does not owe allegiance to a foreign
idea and chance to but a fresh election have to be held within
State.
determine who the sixty days. If both die before assuming
office, the Speaker of the National
principal assistant Assembly will act as President and a fresh
to the incoming
President will be”
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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

presidential election will be conducted within sixty The Cabinet

days.
The Cabinet is appointed with the
When in office, the President cannot be sued but approval of the National Assembly and
Parliament can institute removal proceedings if may be dismissed by the President. The
there are questions to do with the President’s health, President chairs the Cabinet. It consists
violation of the country’s laws or gross misconduct. of:
„ the Deputy President;
Vacancy in the office of President „ the Attorney-General; and
“In the new
When the office of President becomes vacant , the „ not fewer than fourteen
Constitution I will
Deputy President will assume office as President for and not more than twenty-
the remaining period. two Cabinet Secretaries
have the right to
(equivalent of Cabinet be governed by
Ministers). A Cabinet a President who
Deputy President
Secretary cannot be a may be removed
The Deputy President is the principal assistant of Member of Parliament. from office if he/
the President and deputizes him/her. He/she is not she violates this
elected directly by voters but is a running mate of constitution, and
the presidential candidate. In the case a vacancy,
any other laws,
the President nominates another person who has to
be voted for by the National Assembly. The Deputy
or for gross
President may be removed from office on the same misconduct”
grounds as the President.

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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

50
 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

Secretary to the Cabinet Attorney-General

There will be a Secretary to the Cabinet, whose The Attorney General:

functions will:
„ is the principal legal adviser to the Government.
„ be in charge of the Cabinet office.
„ represents the national government in court or in
„ be responsible for arranging the business, and any other legal proceedings.
keeping minutes of the Cabinet.
„ performs any other functions required by any law in
„ convey decisions of the Cabinet to the appropriate the land.
persons or authorities.
„ has authority to appear as a friend of the court in
„ have other functions as directed any civil proceedings.
by the Cabinet.
„ promotes, protects and upholds the rule of law and
defends public interests.
Principal Secretaries

These are the equivalent of the Director of Public Prosecutions

current Permanent Secretaries.
They are in charge
of administration of
each Ministry or State
department.
The office of Director of Public Prosecutions is
established separately from that of the AG. The
Director of Public Prosecutions:
“I expect
more efficient „ has power to direct the Inspector-General of
services from the the National Police Service to investigate any
Government” information or allegation of criminal conduct.

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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

„ 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.

“With a better
structured
Executive in
the Proposed
Constitution, I
am guaranteed

a t i b a M p ya, superior
K
a y a K e n ya services from my
Tib Government”

52

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 officers and staff.
There is a Chief Registrar of
the Judiciary, who is the chief
administrator and accounting
officer.
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
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.
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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW
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.
54
„ 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.
 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

Structure of the Judiciary

CCHIEF
SU HPREME
I E F JU
J U STICE
SCOU
TICE
RT

SUP ERIOR
COU RT OF A PPEA L C OURTS

SPE C I AL CO U R TS HIGH COU RT

e.g. on land, labour, environment

SU BORD IN A TE COU RTS

– – – – – – – – – – – – – – – – – –
– – – – – – – – – – – – – – – – – –
MA GISTRA TES’
– – – – – – – – – – – – – – – – – –
– – – – –
COU RTS
– – – – – – – – – – – – –
TR I B U N A L S – – – – – – – – – – – – – – – – – – KADH IS’ C OURTS
e.g.on rent & business premises

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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW
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.
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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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 insufficient. This can also be done
with a need for expenditure or if the withdrawal is
from the Contingencies Fund.
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

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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW
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 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.
58
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 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.
 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

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,
“ I can now
its people, their rights, freedoms, property, peace, stability and
expect probity in
prosperity, and other national interests.
the use of funds
The national security organs are the: meant to benefit
„ Kenya Defence Forces me because
„ National Intelligence Service
accounting
officers will
„ National Police Service.
be answerable
to the National
Assembly”

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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

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
c o u nty
county 4 7 CO U N T I ES exec u tiv e
as s emblies
c o mmitte e s

c o u nty p u b l ic
s erv ic e

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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

National Government

The national government is in charge of:

„ National policy and standards. „ Tourism policy.

„ Economic Planning. „ Education policy, standards,

curricula, examinations and the
„ Monetary policy. granting of university charters.

„ Agricultural policy. „ National statistics.

„ Veterinary policy. „ Labour standards. “Revenue

due to county
„ Health policy. „ Foreign Affairs, Immigration,
governments
citizenship.
„ Energy policy. is protected by
„ Courts. law”
„ Transport and communications.
„ National defence, Police
„ National public works.
services.

„ Housing policy.

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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

Devolved Governments „ promote social and economic development and the

The devolved system of government is created
with county governments.
Principles of devolved governments
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 devolved government will:

The County Governments
„ promote democratic and accountable exercise of
power. The Proposed Constitution creates 47 county
governments. This number is based on the delineation
„ foster national unity by recognising diversity.
of administrative districts as created under the Provinces
„ give powers of self-governance to the people and and Districts Act of 1992.
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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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

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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

Counties

1. Mombasa 13. Tharaka-Nithi 25. Samburu 37. Kakamega

2. Kwale 14. Embu 26. Trans Nzoia 38. Vihiga

3. Kilifi 15. Kitui 27. Uasin Gishu 39. Bungoma

4. Tana River 16. Machakos 28. Elgeyo Marakwet 40. Busia

5. Lamu 17. Makueni 29. Nandi 41. Siaya

6. Taita/Taveta 18. Nyandarua 30. Baringo 42. Kisumu

7. Garissa 19. Nyeri 31. Laikipia 43. Homa Bay

8. Wajir 20. Kirinyaga 32. Nakuru 44. Migori

9. Mandera 21. Murang’a 33. Narok 45. Kisii

10. Marsabit 22. Kiambu 34. Kajiado 46. Nyamira

11. Isiolo 23. Turkana 35. Kericho 47. Nairobi City

12. Meru 24. West Pokot 36. Bomet

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 h e P r o p o s e d
Read t
s t i t u t i o n a nd
Con
o i n t h e F u ture
J

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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW
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.
66
„ 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: “The county
assembly brings
„ recommended by an independent
commission set up for that purpose services closer
by Parliament, and to me”
„ 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:
 KATIBA MPYA, KENYA MOJA
„ 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 officio member.
– 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 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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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

Eligibility for election to a County Assembly „ is an undischarged bankrupt.

„ is serving a sentence of imprisonment of at least six
One is eligible if he/she: months.
„ is registered as a voter. „ has been found in accordance with any law to have
„ satisfies educational, moral and ethical requirements misused or abused a State or public office.
prescribed by law.
„ is either:
County Executive Committees
– nominated by a political party; or
– an independent candidate supported by at The executive authority of the county is vested in the
least five hundred registered voters in the Ward county executive committee.
concerned.
The committee consists of:
A person is disqualified from being elected a member of
„ the county governor and the deputy county
a county assembly if the person:
governor; and
„ is a State officer or other public officer. „ members appointed by the county governor, with the
„ has at any time within past five years held office approval of the assembly, from among persons who
as a member of the Independent Electoral and are not members of the assembly.
Boundaries Commission.
„ has not been a citizen of Kenya for at least ten years
before the date of election.
„ is of unsound mind.

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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

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
“Now I can look
arises in the office of the county governor,
the members of the county executive forward to better
committee cease to hold office but the management of
executive committee of the county, as last my county and
constituted remains competent to perform
the resources
administrative functions until a new
within it”
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 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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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

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 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
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.
„ 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
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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 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

„ a half ( ½)% of annual national revenue as Relationship Between National and County
Equalization Fund to marginalised areas only. Governments

Government at either level is required to:

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.
„ 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.

COUNTIES get COUNTIES in

NATIONAL marginalized areas get
15% of Annual
GOVERNMENT additional 0.5%
National Revenue

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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW
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
72
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).
 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

Meanwhile: national revenue that is annually allocated to the county

governments (not less than 15%).
„ Parliament will provide for intervention by the
national government if a county government:
While doing this, the Senate will consider:
– is unable to perform its functions; or
– does not operate a financial management system – National interests.
that complies with the requirements prescribed – Public debt and national obligations.
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 “At the grassroot,
Inquiry.
we are entitled to a
share of the revenue
Division of Revenue
raised nationally,
Once every five years, the Senate, will determine the
in addition to our
basis for allocating among the counties the share of
own revenue as a
county”
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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

– Performance of county governments.

– Fiscal capacity and efficiency of county governments.
Note:
– Developmental and other needs of the counties.
– Economic disparities between counties.
A county’s share of
– Need for affirmative action.
– Flexibility in responding to emergencies. revenue raised by the
– Predictability of revenue allocation.
national government
– Motivation on counties to optimise their capacity in raising
revenue. shall be transferred
The Senate may: to the county without
„ request and consider recommendations from the Commission on undue delay or
Revenue Allocation.
„ consult the county governors, the Cabinet Secretary responsible for
deduction, except
finance and any organisation of county governments.
when the transfer has
„ invite the public, including professional bodies, to make
submissions. been stopped.

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 KATIBA MPYA, KENYA MOJA
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.
– 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 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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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW
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:
76
„ 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 “I will be able
Principle that the composition of to know what
the commissions and offices reflect Commissions
the regional and ethnic diversity of
and Independent
the people of Kenya. A member of
a Commission, or the holder of an Offices achieve
Independent Office shall be appointed or fail to, once
for a single term of six years and is the Proposed
not eligible for re-appointment. This
Constitution is
will however not apply to an ex-officio
member. passed”
The chairperson and vice-chairperson
of a Commission shall not to be of the
same gender.
 h i n k K a t iba,
T
ya
T hink Ken

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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW
Leadership and Integrity
Authority assigned to a State officer/
Public officer is a public trust. It is to be
demonstrated by respect for the people, honour
to the nation, dignity to the office and public
confidence in the integrity of the office. The
officers have a responsibility to serve the
people, rather than themselves
Principles of leadership and integrity are:
„ selection on the basis of personal integrity,
competence and suitability, or election in free and
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.
78
„ 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.
„ 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.
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

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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

„ fairness in the representation of Kenya’s diverse Restriction on activities

communities and: A full-time State officer is not to participate in any other
– affording adequate and equal opportunities for gainful employment. Any appointed State officer is not
appointment, training and advancement, at all allowed to hold office in a political party.
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 “In view of
with an Act of Parliament;
the Proposed
or seek or accept a personal loan or benefit in
circumstances that compromise the integrity of the State
Constitution, our
officer. leaders will not be
enticed by gifts to
compromise them
in the conduct
of their official
duties”
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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

Part Three
The referendum

Proclamation of the
Constitution

From the current to the new

Constitution

Legislation to be effected

Amendment of this
Constitution
Moving Forward

81
 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

A referendum gives citizens a voice

to set the terms of government and standards
by which they would be governed

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 KATIBA MPYA, KENYA MOJA
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.
– H A N D B O O K F O R C I V I C E D U C AT I O N
„ 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 “I will know the
will proclaim the Proposed Constitution as
result of the
the Constitution of Kenya.
referendum in 2
The date of proclamation will be days. That way
the “effective date” (when) the new
Constitution will enter in force.
my anxiety will be
Alternatively, the new constitution settled”
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.
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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

84
 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

3. From the Current to the New „ All the obligations, laws and rights remain as they
Constitution are until new corresponding arrangements are
effected including legislation.
If the new Constitution comes into force, it will do
so with the recognition that Kenya would not be „ Provincial Administration to be restructured within 5
in a constitutional vacuum. It contains transitional years.
arrangements and time lines that are to be in place for „ Institutions created by the Proposed Constitution
purposes of transition from the old constitution to a new will take over current corresponding institutions or
one. offices.
„ Necessary legislation will be made by Parliament
Transitional Arrangements
within 5 years to effect the new Constitution.
„ 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 Legislation Time period
to be effected
date but before 2012, elections for the county
governments will only be held in 2012. Legislation in respect of culture Five years

„ The next general elections shall be held under the Citizenship

new Constitution. Legislation on citizenship One year

„ The structure known a the Commission on the Rights

Freedom of the media Three years
Implementation of the Constitution (CIC) shall
Family Five years
monitor and oversee the implementation of the
Consumer protection Four years
transitional arrangement. Fair administrative action Four years
Fair hearing Four years
„ The CIC will work in conjunction with the
Rights of persons detained
Constitutional Implementation Oversight or held in custody Four years
Committee of Parliament. 85
 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

Legislation Time period Legislation Time period

to be effected to be effected

Land The Legislature (cont.)

Kenya National Human Rights Determination of membership
& Equality Commission One year of Parliament Two years
Community land Five years Right to petition Parliament Two years
Regulation of land use and
property Five years Executive
Legislation on land 18 months Power of mercy One year
Agreements relating to Assumption of office of president Two years
natural resources Five years
Judiciary
Legislation regarding environment Four years
System of courts One year
Leadership Removal from office One year
Ethics and anti-corruption commission One year Judiciary Fund Two years
Legislation on leadership Two years Vetting of judges and magistrates One year

Representation Devolved Government

Legislation on elections One year Speaker of a county assembly One year
Electoral disputes One year Urban areas and cities One year
Independent Electoral and Support for county governments Three years
Boundaries Commission One year Removal of a county governor 18 months
Legislation on political parties One year Vacation of office of member of
county assembly 18 months
The Legislature Public participation and county
Promotion of representation of assembly powers, privileges
marginalised groups Five years and immunities Three years
Vacation of office of member County assembly gender balance
of Parliament One year and diversity Three years
Right of recall Two years Legislation to effect Chapter 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
Public Finance
There are two ways in which the Constitution may be
Revenue Funds for county
governments 18 months amended:
Contingencies Fund One year
Loan guarantees by national
government One year 1. Parliament and Referendum
Financial control Two years
Accounts and audit of public entities Four years
For the following provisions to be amended, Parliament
Procurement of public goods must approve, following which a referendum will be
and services Four years held:
Public Service „ supremacy of this Constitution.
Values and principles of public service Four years
„ territory of Kenya.
National Security
National security organs Two years
„ sovereignty of the people.
Command of the National „ national values and principles.
Police Service Two years
„ Bill of Rights.
General
Any other legislation required „ term of office of the President.
by this Constitution Five years
„ independence of the Judiciary and the Commissions
and independent offices.
„ functions of Parliament.

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 COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW
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.
a,
New Katib
One Kenya
88
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 “The new
a formulated draft Bill presented
Constitution
to Parliament by IEBC from the
petitioning entities. provides for
amendments
through several
channels”
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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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