A to Z of Proposed Kenya Constitution

Kenyans will vote in a referendum in August 2010 on a new constitution. Here’s an A to Z summary of some of what’s contained in it and the [chapters] which are cross posted at Mzalendo (where one can also download the current, proposed draft, and other analysis of the changes).

Affirmative action: provides for 1/3 women on government boards, county assemblies (177) etc. (noble, but is it practical?)
Culture: parliament will enact legislation that will see communities get royalties for use of their culture, and recognize the use of their seeds which will legalize mnazi, muratina, mayeek, busaa etc (11)
- Youth: can benefit from affirmative action and access training and employment (55), but odd for a government that continually employs retirees and has extended the retirement age

Citizenship: Dual citizenship is allowed - and a born Kenyan does not lose citizenship by becoming one of another country, and anyone who has lost it is entitled to re-acquire it (14) and (16). Also citizenship can be acquired by marriage to a citizen for 7 years, or lived in Kenya for 7 years (15) or is an orphan under 8 years can be citizens (14)

Devolution: - The 47 counties are spelt out in the first schedule and include Mombasa, Kwale, Kilifi, Tana river, Lamu, Taita/Taveta, (for what looks like coast province), while Nairobi City is a single county
- County government will have an executive committee (led by governor and a deputy governor who may not serve more than two terms) and not more than 1/3 of the assembly members.
- National laws prevail over county laws where there is a conflict (191) (e.g. Mandera town that purported to ban DSTV)

Elections: - Will be run by one body called the independent electoral and boundaries commission (82); currently there are two separate commissions, one for boundaries, one for elections. After it passes the boundaries commission will set constituencies and ward boundaries for the remainder of their term (but not county boundaries)
- Election petitions can be served by a notice in a newspaper (87)
- Independent candidates can avoid messy, expensive, party elections by running without signing on to a political party by obtaining 1,000 signatures for MP and 2,000 for senate from constituents (99). Also political parties have one year to comply with political parties act or be disbanded
- Election date is constitutionally set (101) as second Tuesday in august, every fifth year for all including president. (This will be during August holidays for most schools which also double up as voting centres, but also importantly won’t affect busy Christmas season when elections have traditional being held and which churches have complained about)

Financial Management: - No budget busting: government may not spend more than 10% in supplementary appropriations in any financial year (223)
- Parliament shall enact creation of an ethics and anti-corruption commission (79) (good because current anti corruption commissions can’t review ethical actions such as conflicts of interest actions which don’t qualify as corruption)
- Constitution defines separate roles of attorney general (156), director of public prosecutions (157) controller of budget (228), and auditor general (229)
- The human rights & equality commission, judicial service, land commission and auditor general all have power to summon witnesses in the course of their investigations (252)
- No double jeopardy: every accused person has the right not to be tried for an offence that was previously acquitted or convicted (50). Also you can’t be tried for an act that as not an offence in Kenya, or under international law (does that exclude old economic crimes which were only legislated in 2003? would Pattni, other Goldenberg offenders go free?)
- A salaries & remuneration commissions will be created (230) that is separate from the public service commissions (233)
- County Governments: are a are a new level of Government created to devolve power to the people by way of 47 county governments (176), will receive and share at least 15% of revenue raised by the state (203). Another 0.5% will go to an equalization fund (204) for the government to use to provide services to marginalized communities for the next 20 years. A commission on revenue allocation (215) formed by the president will recommend how much each county gets out of the national government while the senate will vote every 5 years on resolutions sharing resources among counties (217). Parliament till normal vote on such bills two months before the end of their scheduled terms (218). Using the 2009 numbers, of tax revenue of Kshs 480 billion, county governments will get 72 billion
- Tax separation: county governments collect property, entertainment and other taxes approve by parliament, while only the national government may collect income tax, customs, excise and valued added – VAT taxes
- County finance: county government may take loans if their assemblies approve, but only if the national government guarantees that (212). Parliament may legislate bailout of non-functioning county governments (190) and the government must operate sound financial systems prescribed by national government

Judiciary: - Kenya will now have a supreme court (163) in addition to court of appeal (164) and high court (165) and subordinate courts (169) comprising kadhi courts, magistrate courts, and court martial
- The Kadhi’s Court is limited to Moslems matters of status, marriage, divorce and inheritance (24)
- The president will appoint judges, recommended by a judicial service commission for approval by parliament (166)
- Traditional dispute mechanisms, are encouraged, but shall not violate bill of rights (159)
- Judges and chief justice lose jobs under the constitution and have to re-apply (–)

Land: - Clause (60) says land customs and practices should not have gender discrimination, but (67) which creates a national land commission also encourages application of traditional dispute mechanism in land conflicts (where daughters are routinely left out of land inheritance)
- Community land definition (63) is vague – it mentions ethnicity, but is that Masai land (managed by specific communities), (volatile) Kalenjin land, county government land, or Ogiek land (traditionally occupied by hunter gatherer tribes)?
- Land holding by non-citizens is restricted to 99-year leases (65) (takes effect as soon as the constitution is passed) and land without an heir reverts to the state (62)
- Parliament must ratify concessions of land and mining agreements (71) (no more Tiomin’s)
- In terms of land not much will change since parliament has the discretion to set rules (68) on land investment, minimum and maximum land holding, foreign ownership of land, matrimonial sharing and inheritance

Parliament/Legislature: - Is based on 290 constituencies and 47 counties.
- Parliament (97) will comprise 290 members of parliament, 47 women one from each county, 12 nominated by political parties and a speaker
- Senate (98) will comprise 47 members, one representing each country, 16 women nominated by political parties, 2 youth nominees (M/W), 2 disabled nominees (M/W) and a speaker. They will legislate on bills concerning the county governments (110)
- There will be two different speakers and two different clerks (128) in each house, and also speakers for each county
- Money bills (114) are any that touch on taxes or use of public money or guaranteeing of loans, and will be referred to the cabinet secretary and parliamentary committee first before parliament votes on it (e.g. Anglo leasing?)
- Any parliamentary vote that affects their interest e.g. salaries wont take effect until the next parliament comes in (116)
- Quorum (121) is higher for senate (15 members ~22%) than for parliament (50 members, ~14%)
- Parliament /national assembly (132) shall approve on nominees of the president for cabinet secretary (ministers), attorney general, secretary to cabinet, principal secretaries (permanent secretaries), ambassadors/diplomats
- There are no term limits for parliament as there are for presidents, county government, judiciary and government officers e.g. inspector general of police will only serve one 4-year term (245)

President: - Is (131) head of state, government, and armed forces
- Restricted powers of acting president defined (134) as well as procedure when a president is incapacitated (144) or impeached (145)
- Will be sworn in public (141) (swipe at you know who) two weeks after election results or one week after an election petition verdict by Supreme Court
- Deputy president rules are defined (148) may not be replaced on whim (150) (has to resign or be impeached) and may not serve for more than two terms (148)
- Cabinet size is defined (152) as between 14 and 22 cabinet secretaries (152) approved by parliament (no more 40 minister plus 60 deputy minister governments)

State officers: (and anti-corruption)- Have leadership rules & guidelines set out for them mainly objective service to the public (73) & (75)
- Can’t have bank accounts outside Kenya
- Restrict number of directorships to not more than 2 simultaneous ones
- Can’t be involved in politics (e.g. chair a Kengen and a political party)
-Person who has been removed from a state office for a violation is not eligible for any others
- State officers shall not have other gainful employment (77) (is this a repeal of the (controversial) Ndegwa Rule that allowed civil servants to engage in private business?

Transition/Summary
- Parliament’s calendar for the next three years to 2012 is going to be very heavy as they amend and enact new legislation to support the constitution if it is passed in August
- President Kibaki, Vice President Kalonzo,Prime Minister Raila – his deputies Uhuru & Musalia, and the bloated cabinet of 100 ministers & deputies will remain in their posts until 2012 or the dissolution of the Grand Coalition Government. During this period Kibaki can continue to make appointments in consultation only with Raila. In effect the executive and parliament have postponed the difficult decisions of trimming the cabinet and subjecting appointees for parliamentary approval to the next government, as the constitution does not provide for prime minister or deputy ministers.
- Key government officials will be forced out including chief justice Gicheru who will be out in 6 months, attorney general Wako and the auditor general who will be out in 12 months while all other state officers remain intact. In the first year parliament is to setup up system to vet existing judges. Any acting officials are left in limbo, so expect anyone serving in an acting capacity to push for confirmation before the constitution becomes effective
- The provincial administration staff will be re-deployed into government over the next 5 years
- Civic education has not been carried out adequately in the country and media and politicians have polarized on issues of the kadhi courts, abortion and land.
- From a taxpayer perspective, taxes are likely to go up to support devolved government structures which ill take up over 15% of money raised by the current government, and services provisions are likely to go down, in the short term as the government is already on a cash crunch and devolved government set up to take on their new roles