A Presentation by ndolo asasa Esq.
To
SUPPORT FOR TROPICAL INITIATIVES IN POVERTY ALLEVIATION(STIPA)
Staff End Year Retreat at Camunya Hotel, Ugunja on Sunday 19th December, 2010.
1) The Nation’s Make-Up.
This is the start of the New Constitution and is specifically referenced by the Preamble, Chapter 1- Sovereignty of the people, Chapter 2- The Republic and Chapter 3 which is on Citizenship.
The Preamble is a self declaratory statement by the people of Kenya acknowledging themselves “We, the people of Kenya…” and confirming their intentions and aspirations as a people the role they have played in creating the constitution for themselves and their progeny.
By Chapter 1, all implementing authority of the nation is squarely in the hands of wananchi ONLY. This authority may be exercised by the people directly or through representatives to be used by three state organs ONLY; namely the Legislature, the Executive and Judiciary. This use and exercise of power is recognized to be at both the national and county levels.
It is the duty of each and all Kenyans to respect, guard and protect the constitution.
The superiority of the constitution is asserted in this chapter, in addition to recognizing the role of other laws, rules and international order within which Kenya exists and operates.
The Collective existence of Kenya and its values, political units, language and artifacts are stipulated in Chapter 2.
It demarcates the autonomy of counties, the relation between the counties and with the national government. It is in this chapter that Kiswahili is specifically categorized as the ONLY National language, though both Kiswahili and English are recognized as official languages for the nation.
This chapter also establishes the National Symbols (The flag, anthem, coat of arms & seal) and National Days (Madaraka, Mashujaa & Jamhuri Days on 1st June, 20th October and 12th December respectively).
The population of Kenya is defined in Chapter 3.
All those born of Kenyan parent/s are recognized as Kenyans by birth. Other recognized mechanisms by which Kenyan citizenship may be acquired include registration (marriage and naturalization).
Kenyans are allowed dual citizenship.
2) The Nation’s Character
The national behavior, mannerism and being of the Kenyan person is established in the Bill of Rights (Chapter 4) and Chapter 6 on Leadership and Integrity.
The Bill of Rights asserts that the rights are not given by anybody including the state and thus cannot be taken away by anyone or authority. This chapter applies to all laws, meaning all laws must be in compliance with the provisions of this chapter. Special attention is given to the Economic and Social Rights (Art 43); while the state is expected to progressively ensure that this provision is adhered to it (the state) is charged to specifically ensure that they are realized {Art.20 (5)} and Art.21
While the state is expected to enhance the enjoyment of all the fundamental rights as stipulated in the chapter, it is the duty of the citizen to actively seek their enjoyment and even enforcement through individual, group, direct and indirect actions of demand and courts of law. (Art 20, 21, 22, 23, 27, 28 and 37).
The rights and freedoms that are expressly provided for in the constitution include ;
• Right to life
• Equality
• Freedom from discrimination
• Dignity
• Security
• Freedom from slavery
• Privacy
• Freedom of conscience
• Freedom of expression
• Freedom of media
• Access to information
• Freedom of Association
• Assembly
• Political freedom
• Freedom of movement
• Protection of right to property
• Labour relations
• Environment
• Social and Economic rights
• Language & culture
• Family
• Consumer rights
• Fair administration
• Access to justice
• Rights of arrested persons
• Fair hearing
• Rights of detained persons
• Children’s right
• For people with disabilities
• Youth
• Minorities and marginalized groups
• Old persons and
• State of emergency.
All these are established in Chapter 4, Articles 26 – 58.
3) The Nation’s Wealth
The national wealth is categorized in the constitution as Land (Chapter 5) and Public Finance (Chapter 12)
In Chapter 5, land is categorized and defined as public, private and communal. Foreigners are restricted from owning land on a freehold basis or leasing for a period longer than 99 years. The public.
Any kind of discrimination is prohibited in the use, access or ownership of land whilst the state has the final authority on all land so long as it is acting in the interest of the larger public good (Art.60).
Public finance shall be raised through ordinary revenue, taxes, charges, loans, grants, fines and public debts. That in sharing the burden of taxation, it shall be shared fairly and revenue raised shall be shared equitably for equitable development (Art. 201). Public participation is guaranteed for the public while the state is conducting management of public finances – which should be responsibly, openly and with accountability.
There is provision for equitable sharing of the fiscal resources between the national and county governments with the county government being allocated no less than 15% of all the ordinary national revenue (Art 203).
The constitution establishes structures for the said management of finances for the realization of equitable development that include;
• Equilisation fund
• Commission on Revenue allocation
• Consolidated fund
• County Governments revenue funds
• Contingencies fund
Borrowing and imposition of taxes by both the national and county governments is controlled
(Art. 209 -214). For enhancing financial control, further established is;
• Office of Controller of Budget
• Auditor General
• Salaries and Remuneration Commission and
• Central Bank of Kenya.
4) The Governance Structure
This is established through the Executive, devolved government, legislature, representation and judiciary by virtue of chapter 9, 11,8, 7 and 10 respectively.
a). The Executive.
The national government that includes all the 47 county governments shall be led by a President elected through universal suffrage. The President shall have a Deputy who will be a running mate during the General Elections. The President will be deemed to have been elected if he/she garners 50% +1 vote of all the cast votes in the said election in addition to garnering at least 25% of all the cast votes in 24 of the 47 counties. Incase, no single candidate scores the said threshold; the top two candidates will face-off in a re-run and the winner shall be declared the President. The President shall normally be elected during the General Election which is scheduled to be on the second Tuesday of August of the fifth year after the last General Election.
The President shall form a government cabinet of no less than 10 Cabinet Secretaries but not more than 22 Cabinet Secretaries who shall not be elected persons. This cabinet will be approved by Parliament and will undertake day-to-day running of the government.
The Executive shall be composed of the President, Deputy President, Cabinet Secretaries, Principal Secretaries, Attorney General and Director of Public Prosecutions (Art.152-158).
The devolved governments shall be divided into 47 unit Counties headed by a Governor elected by universal suffrage in each County. The Governor will be deputized by his/her running mate during the General Election. The governor shall run the day-to-day activities of the county together with an Executive Committee of no more than 10 person approved by the County Assembly. But if the county has less than 30 Members of the County Assembly, then the governor shall have an Executive Committee of no more than 1/3 of the size of the County Assembly Membership( Art. 179, 180, 183).
b). Legislature.
The legislative duties of at the national level shall be conducted through parliament which shall be made up of the National Assembly and the Senate (Art. 93).
The National Assembly shall be made up 290 elected Members of Parliament (1 from each constituency), 47 elected women representatives (1 from each county), 12 nominated members representing youth, people with disabilities and the minorities & marginalized, and the Speaker (Art.97).
The main responsibilities of the National Assembly include (95);
• Deliberate peoples concerns
• Enact laws
• Determine allocation of national revenue between the national and county governments
• Allocate funds to national government for expenditure
• Supervise national expenditure
• Review conduct of all State Officers, including the President
• Approve declarations of war and state of emergencies
The Senate shall be made up of 47 Senators, one elected from each county, 16 nominated women Senators, 2 nominated youth representatives, 2 nominated representatives of persons with disabilities and the Speaker(Art.98).
The main responsibilities for the Senate are (Art.96);
• Represent the counties
• Protect interests of the counties and their governments
• Debate and approves bill concerning counties
• Determine allocation of national revenue among counties
• Consider and determine any resolution to remove the President/Deputy from office
The County Assemblies shall be made up of elected Ward Representatives and nominated members. The responsibilities of the County Assemblies shall be at the county level and mainly be legislative. These include (Art. 185);
• Make laws for exercise of power at the county level
• Exercise oversight over county executive committee and other county organs
• Approve plans for management of county resources and development of infrastructures
In all the above offices election shall be done by secret ballot, using the principle of one man one vote, all adult Kenyans are eligible to contest any seat, one can contest as sponsored by a political party or even as an independent candidate.
c). Judiciary
It is important to note that, as a constitutional principle alternative dispute resolution and non-adherence to strict regard to procedural technicalities have been done away.
The Judiciary shall be set up in 4 main divisions;
• Supreme Court
Shall be the highest court in the land and shall be made up of the Chief Justice and at least made up of five judges.
Responsibilities;
Hear Presidential Election Petitions
Hear appeals from Court of Appeal and below
• Court of Appeal
Made up of at least 12 judges.
It has the mandate of hearing appeals from High Court and courts below it
• High Court
Shall have as many judges as will be determined by Parliament. The mandate of this court include;
Unlimited jurisdiction in civil and criminal matters
Determination of matters of Bill of Rights
Appeal from a tribunal to remove a state officer
Interpretation of the constitution
Appeals from sub-ordinate courts
• Sub-Ordinate Courts
These include the Magistrates courts, Kadhi’s Courts and the tribunals.
5) Adaptability for the Nation
This is catered for through provisions for Amendments (Chapter 16), transitional provisions (Chapter 18) and the schedules (Schedule 1-6).
(i) Amendments:
While the constitution provides for the amendment of any part of the constitution by both any Member of Parliament and any Kenyan citizen, through receiving absolute majority (65% of parliamentary membership)support in parliament, there are parts of the constitution that can only be amended through a referendum. These include;
Chapter 1, 2, 3 and 4.
Presidential term
Independence of judiciary
Functions of Parliament
Chapter 11 and
Chapter 16.
Any Member of Parliament can move a motion to amend any part of the constitution, and the amendment will be successful if the subsequent bill receives 65% majority total membership approval, unless it also require a referendum approval.
A citizen may move a motion to amend any part of the constitution by collecting at least 1million signature of voters, this motion would then be taken to parliament for approval as stipulated, unless it requires further ratification in a referendum
(ii) Transitions
The new constitution came into effect immediately it was promulgated on 27th August 2010 (Art. 263)
While parliament is given responsibility to midwife the new constitution to functionality {Art. 261 (1-4)}, should it fail it will lead to its dissolution and a General Election {Art. 261(5-9)}
(iii) Schedules
a) Schedule 1 –
Enumerated all the 47 counties
b) Schedule 2 –
Gives and describes the national artifacts/symbols
c) Schedule 3 –
Avails the prescribed national oaths and affirmations
d) Schedule 4 –
List the different and joint functions for the national and county governments
e) Schedule 5 –
Tabulates the timelines for parliament to enact facilitative and enabling laws for the constitution
f) Schedule 6 -
It provides for;
Definitions
Suspension of implementation of Chapter 7 & 8; Chapter 9 (Art.129-155) and all Articles on devolution.
Conditional continuity of sections of the former constitution
Implementation structures for the constitution
Application of existing subordinate laws
Establishment of judicial and constitutional commissions/institution.
