After attending the Vihiga County public forum of the Task Force on Devolution, presenting my views and staying on, I have concluded that it is a waste of time and funds.
It was not well thought out, participation not informed, poorly attended and militarily controlled.
My take is that it would have been better had it;
i). Developed and presented a draft devolution framework as informed by constitution, their rich experience and successful practices elsewhere for public input.
ii). Conducted prior civic education on the same before collecting the same.
iii). Intentionally and purposefully mobilised the political class, especially parliamentarians in their county areas.
I submit that the consequence of current efforts will;
a). Be rejected at parliament level.
b). Result in demand for a 'people-involvement'
c). Receive a lot more of a unconstitutional submissions than substantive devolution inputs on devolution as provided for in our constitution.
All the same, I call on you to attend and submit your views; after all our constitution calls for people participation in governance at all times and levels, doesn't it?
Saturday, 26 February 2011
Thursday, 10 February 2011
APPOINTMENTS OR APPORTIONMENT By ndolo asasa Esq.
10th February 2010.
Later today, parliament will determine upon being given submissions by 2 parliamentary committees on whether the appointments of the Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget were done constitutionally or not. Realisation of constitutionalism only starts with the implementation of a constitution. If we get the implementation wrong, we miss constitutionalism. Meaning we tinker with dictatorship, with bad governance, with jungle rule.
Parliament may well miss the mark today if the question they will be answering is either whether the Principals consulted or not OR whether there was agreement between the Principals or not! Those will be the wrong questions to answer.
What must be determined and insisted not only by parliament but by all Kenyans is that the constitution MUST be truthfully implemented. The correct question to be determined then invariably is; were the appointments constitutionally done or not?
I submit:
1). The Implementation Schedule.
This is comprehensively provided for in the 6th Schedule of the New Constitution. True, it provides for timed suspension of immediate application of parts of the new constitution. But this parts are unequivocally specific and the duration of suspension given. These are expressly provided for in Schedule 6 Section (2) and (3) that specifies the Suspension of Provisions for the New Constitution and Extenstion of Application of Provisions of the Former Constitution respectively;
SUSPENDED:
(i) On Elections
“(a) Chapter Seven, except that the provisions of the Chapter shall apply to the first general elections under this Constitution.
(b) Chapter Eight, except that the provisions of the Chapter relating to the election of the
National Assembly and the Senate shall apply to the first general elections under this
Constitution; and
(c) Articles 129 to 155 of Chapter Nine, except that the provisions of the Chapter
relating to the election of the President shall apply to the first general elections under
this Constitution.
(ii) On Devolved Government
“The provisions of this Constitution relating to devolved government, including Article 187, are suspended until the date of the first elections for county assemblies and
governors held under this Constitution.”
(iii) Exemptions
“(a) elections for county assemblies and governors shall be held in accordance with Articles 177 and 180 of this Constitution; and
(b) the laws relating to devolved government, required by this Schedule and Chapters
Eleven and Twelve of this Constitution, shall be enacted within the period stipulated in
the Fifth Schedule.”
(iv) On Land
“Article 62 (2) and (3) is suspended until the National Land Commission is established.”
EXTENDED:
(v) On Citizenship
“Until Parliament passes the Act anticipated in Articles 15 and 18, section 93 of the former Constitution continues to apply.”
(vi) On Composition of Parliament, Voter Registration, Membership of National Assembly,
Parliamentary Service, Parliamentary Service Commission, Exercise of Parliamentary Power and legislation and Procedure in National Assembly EXCEPT prorogation of Parliament and The National Accord.
Sections 30 to 40, 43 to 46 and 48 to 58 of the former Constitution, the provisions of the
former Constitution concerning the executive, and the National Accord and
Reconciliation Act, 2008 (No.4 of 2008) shall continue to operate until the first general
elections held under this Constitution, but the provisions of this Constitution concerning
the system of elections, eligibility for election and the electoral process shall apply to that
election.
(vii) On Police
Until the National Police Service Commission referred to in Article 246 is established, section 108(2) of the former Constitution applies to appointments, discipline and the
removal of persons from office in the National Police Service.
Chief Justice:
Section 24 (2) of the 6th Schedule expressly provides for the appointment of the New Chief Justice without exempting the process of his/her appointment to the substantive provisions on Judicial appointments of the New Constitution. Section 24(2) of the 6th Schedule provides that “A new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.”
Chapter 10 Article 166(1) provides that “The President shall appoint—
(a) the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly; and
(b) all other judges, in accordance with the recommendation of the Judicial Service Commission.”
This in no uncertain terms provides for the appointment procedure and the role of the various institutions thus. It is cognizant to note here that the powers of the President are exercised subject to the National Accord and not the National Accord replacing the full constitutionally sanctioned procedure!
Attorney General and the Director of Public Prosecutions:
This is particularly provided for in Chapter 9 Article 156(2) and 157(2) respectively that the President will appoint with approval of the National Assembly. Of course remembering that as at now the President exercises his authority as provided for in the National Accord.
Controller of Budget:
Shall be appointed by the President with the approval of the National Assembly. This is provided for on Chapter 12 Article 228(1)
The Role of the National Assembly.
It is key to note the important role the National Assembly plays in the appointments by way of approval. The approval is not blank trading cheque for the National Assembly to make deals for themselves with the executive, but it is to ensure that the Constitution is fully adhered to in spirit and letter especially in reference to basic qualifications, Chapter 6 (Leadership and Ethics) and the Bill of Rights as emphasized in Chapter 4 Article 19(1), 20(1)& (4), Article 21(1,2&3) with special emphasis Article 27 of the Bill of Rights (Chapter 4).
I, like many Kenyan, have more hope than confidence that as this matter is disposed off and course of constitutionalism determined in Kenya by parliament, LEADERSHIP and NOT DEALERSHIP shall be tipping factor.
By the way, how did the Parliament, the commissioners to boot and seemingly ‘we the people’ accept Mr. Charles Nyachae to be the Chairperson on the Constitution Implementation Commission when the Principals disregarded the laid down procedure to appoint the Chair? Did we start on a wrong footing and subsequently miss the moral high ground to demand full, truthful and faithful implementation of the New Constitution?
Chapter 1 Article 1 of the Constitution is emphatic that “All sovereign authority belongs to the people of Kenya…” and that “we the people, may exercise our sovereign authority either DIRECTLY or through our democratically elected representatives”. Kindly note that direct exercise of sovereign authority is the PRINCIPAL way to be exercised! Meaning, we the people have an unalienable role to provide LEADERSHIP should our representatives seek dealership as is substitute to leading.
Over to parliament, on this path to constitutionalism in Kenya are you going to LEAD or DEAL?
Later today, parliament will determine upon being given submissions by 2 parliamentary committees on whether the appointments of the Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget were done constitutionally or not. Realisation of constitutionalism only starts with the implementation of a constitution. If we get the implementation wrong, we miss constitutionalism. Meaning we tinker with dictatorship, with bad governance, with jungle rule.
Parliament may well miss the mark today if the question they will be answering is either whether the Principals consulted or not OR whether there was agreement between the Principals or not! Those will be the wrong questions to answer.
What must be determined and insisted not only by parliament but by all Kenyans is that the constitution MUST be truthfully implemented. The correct question to be determined then invariably is; were the appointments constitutionally done or not?
I submit:
1). The Implementation Schedule.
This is comprehensively provided for in the 6th Schedule of the New Constitution. True, it provides for timed suspension of immediate application of parts of the new constitution. But this parts are unequivocally specific and the duration of suspension given. These are expressly provided for in Schedule 6 Section (2) and (3) that specifies the Suspension of Provisions for the New Constitution and Extenstion of Application of Provisions of the Former Constitution respectively;
SUSPENDED:
(i) On Elections
“(a) Chapter Seven, except that the provisions of the Chapter shall apply to the first general elections under this Constitution.
(b) Chapter Eight, except that the provisions of the Chapter relating to the election of the
National Assembly and the Senate shall apply to the first general elections under this
Constitution; and
(c) Articles 129 to 155 of Chapter Nine, except that the provisions of the Chapter
relating to the election of the President shall apply to the first general elections under
this Constitution.
(ii) On Devolved Government
“The provisions of this Constitution relating to devolved government, including Article 187, are suspended until the date of the first elections for county assemblies and
governors held under this Constitution.”
(iii) Exemptions
“(a) elections for county assemblies and governors shall be held in accordance with Articles 177 and 180 of this Constitution; and
(b) the laws relating to devolved government, required by this Schedule and Chapters
Eleven and Twelve of this Constitution, shall be enacted within the period stipulated in
the Fifth Schedule.”
(iv) On Land
“Article 62 (2) and (3) is suspended until the National Land Commission is established.”
EXTENDED:
(v) On Citizenship
“Until Parliament passes the Act anticipated in Articles 15 and 18, section 93 of the former Constitution continues to apply.”
(vi) On Composition of Parliament, Voter Registration, Membership of National Assembly,
Parliamentary Service, Parliamentary Service Commission, Exercise of Parliamentary Power and legislation and Procedure in National Assembly EXCEPT prorogation of Parliament and The National Accord.
Sections 30 to 40, 43 to 46 and 48 to 58 of the former Constitution, the provisions of the
former Constitution concerning the executive, and the National Accord and
Reconciliation Act, 2008 (No.4 of 2008) shall continue to operate until the first general
elections held under this Constitution, but the provisions of this Constitution concerning
the system of elections, eligibility for election and the electoral process shall apply to that
election.
(vii) On Police
Until the National Police Service Commission referred to in Article 246 is established, section 108(2) of the former Constitution applies to appointments, discipline and the
removal of persons from office in the National Police Service.
Chief Justice:
Section 24 (2) of the 6th Schedule expressly provides for the appointment of the New Chief Justice without exempting the process of his/her appointment to the substantive provisions on Judicial appointments of the New Constitution. Section 24(2) of the 6th Schedule provides that “A new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.”
Chapter 10 Article 166(1) provides that “The President shall appoint—
(a) the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly; and
(b) all other judges, in accordance with the recommendation of the Judicial Service Commission.”
This in no uncertain terms provides for the appointment procedure and the role of the various institutions thus. It is cognizant to note here that the powers of the President are exercised subject to the National Accord and not the National Accord replacing the full constitutionally sanctioned procedure!
Attorney General and the Director of Public Prosecutions:
This is particularly provided for in Chapter 9 Article 156(2) and 157(2) respectively that the President will appoint with approval of the National Assembly. Of course remembering that as at now the President exercises his authority as provided for in the National Accord.
Controller of Budget:
Shall be appointed by the President with the approval of the National Assembly. This is provided for on Chapter 12 Article 228(1)
The Role of the National Assembly.
It is key to note the important role the National Assembly plays in the appointments by way of approval. The approval is not blank trading cheque for the National Assembly to make deals for themselves with the executive, but it is to ensure that the Constitution is fully adhered to in spirit and letter especially in reference to basic qualifications, Chapter 6 (Leadership and Ethics) and the Bill of Rights as emphasized in Chapter 4 Article 19(1), 20(1)& (4), Article 21(1,2&3) with special emphasis Article 27 of the Bill of Rights (Chapter 4).
I, like many Kenyan, have more hope than confidence that as this matter is disposed off and course of constitutionalism determined in Kenya by parliament, LEADERSHIP and NOT DEALERSHIP shall be tipping factor.
By the way, how did the Parliament, the commissioners to boot and seemingly ‘we the people’ accept Mr. Charles Nyachae to be the Chairperson on the Constitution Implementation Commission when the Principals disregarded the laid down procedure to appoint the Chair? Did we start on a wrong footing and subsequently miss the moral high ground to demand full, truthful and faithful implementation of the New Constitution?
Chapter 1 Article 1 of the Constitution is emphatic that “All sovereign authority belongs to the people of Kenya…” and that “we the people, may exercise our sovereign authority either DIRECTLY or through our democratically elected representatives”. Kindly note that direct exercise of sovereign authority is the PRINCIPAL way to be exercised! Meaning, we the people have an unalienable role to provide LEADERSHIP should our representatives seek dealership as is substitute to leading.
Over to parliament, on this path to constitutionalism in Kenya are you going to LEAD or DEAL?
Friday, 21 January 2011
THE KANU RACERS
By ndolo asasa Esq.
In 1996 at the Rahimtulla Library, the evergreen Oby Obyerrodhiambo and Odera Aghan superbly presented a narrative, the canoe racers! In the narrative, oarsmen summon and apply all their skills and tactics to win this regular but once in a while competition. They need team work to surmount the massive challenges that include violent sea waves, marauding floating islands and energy sapping sea waters. So as not to re-tell this story, and re-tell it badly as I hardly command the talent and skill of the duo … the winner is always a canoe racer!
Is 2012 going to be our equivalent? A KANU race?
KANU is the party on which Kenya rode to independence. Kenya was under its watch, or is it stare, for a whooping 39 years uninterrupted! During which our own rising political stars were systematically murdered, the economy was put on test as if to establish if it could really ground, many more Kenyans were detained without trial as if to hoist a novel oppression culture to international acclaim!
In anticipation of old age change or worse demise; the KANU system regenerated itself by creating fresh high achievers in subservience, economic ruin and tribal jingoism. And not to be sitting ducks, the KANUlets were dispersed to go and establish safety havens. It is with the benefit of this hindsight that former President Daniel Toroitich arap Kimoi proclaimed that KANU will rule Kenya for 100 years while being cheered on by Sharrif Nassir to the effect that this will be ‘wapende wasipende’!
The KANUlets.
Emilio Mwai Kibaki, Raila Amollo Odinga, Stephen Kalonzo Musyoka, Willaim Samoie arap Ruto, Uhuru Muigei Kenyatta, Musalia Mudavadi, Henry Kosgey, Dalmas Otieno, Simeon Nyachae, Gedion Moi have all learnt and sharpened their political skills from the KANU academy. They done it so well that they have driven psyche on leadership to literally start and end with them or their proteges’. So much such that averagely if you convincingly challenge their credentials to lead as a group or individually, you will most probably be asked by many Kenyan ‘so who is the alternative’ or a claimant to reformism or progressiveness will inform you that ‘at least he is better’ and premise that being in KANU was a necessity or a tactic!
It is in this context that the political motions (there is no movement from KANU) we are subjected should be viewed. We are quickly being offered the choices of either KANU or KANU for 2012.
I predict that in the buildup 2012;
1. Raila, Kalonzo, Ruto or Uhuru will only choose a verified KANUlet to be their running-mate should they contest for the Presidency or any other senior political position
2. The many committees that are to be formed to actualize the constitution before 2012 will be populate and or led by scions, associates and brotherhoods of KANUlets
3. Strategic de-campaigns and political harassments are going to intensify against KANUlet outsiders
4. There is going to be a lot of feel-good public make-ups between and amongst KANUlets.
5. The middle class is going to dig in to sustain the status quo through the rebranded KANUlets
My take?
Kenyan must remain vigilant against cheering on the KANU Racers. KANU took away from the people political authority and legal authority, but failed to take moral authority. Over the last 20 or so years, as evidenced in last year’s referendum, Kenyans have reclaimed legal authority.
Now we must reclaim our political authority. This must be done quickly, sharply and clinically, all else the KANUlets will use it (as they still have it) to roll back the legal authority we just secured a few months ago. The arena of this take-over is the political field. Persistently demand political accountability in media, in churches, in funerals, in the morning, evening and night. Thoroughly organise politically. Join political parties. Hold political rallies. Contest elections. Create and mobilize votes. Vote
This is their last bastion. Expect a hell of a fight!
Who is with me?
In 1996 at the Rahimtulla Library, the evergreen Oby Obyerrodhiambo and Odera Aghan superbly presented a narrative, the canoe racers! In the narrative, oarsmen summon and apply all their skills and tactics to win this regular but once in a while competition. They need team work to surmount the massive challenges that include violent sea waves, marauding floating islands and energy sapping sea waters. So as not to re-tell this story, and re-tell it badly as I hardly command the talent and skill of the duo … the winner is always a canoe racer!
Is 2012 going to be our equivalent? A KANU race?
KANU is the party on which Kenya rode to independence. Kenya was under its watch, or is it stare, for a whooping 39 years uninterrupted! During which our own rising political stars were systematically murdered, the economy was put on test as if to establish if it could really ground, many more Kenyans were detained without trial as if to hoist a novel oppression culture to international acclaim!
In anticipation of old age change or worse demise; the KANU system regenerated itself by creating fresh high achievers in subservience, economic ruin and tribal jingoism. And not to be sitting ducks, the KANUlets were dispersed to go and establish safety havens. It is with the benefit of this hindsight that former President Daniel Toroitich arap Kimoi proclaimed that KANU will rule Kenya for 100 years while being cheered on by Sharrif Nassir to the effect that this will be ‘wapende wasipende’!
The KANUlets.
Emilio Mwai Kibaki, Raila Amollo Odinga, Stephen Kalonzo Musyoka, Willaim Samoie arap Ruto, Uhuru Muigei Kenyatta, Musalia Mudavadi, Henry Kosgey, Dalmas Otieno, Simeon Nyachae, Gedion Moi have all learnt and sharpened their political skills from the KANU academy. They done it so well that they have driven psyche on leadership to literally start and end with them or their proteges’. So much such that averagely if you convincingly challenge their credentials to lead as a group or individually, you will most probably be asked by many Kenyan ‘so who is the alternative’ or a claimant to reformism or progressiveness will inform you that ‘at least he is better’ and premise that being in KANU was a necessity or a tactic!
It is in this context that the political motions (there is no movement from KANU) we are subjected should be viewed. We are quickly being offered the choices of either KANU or KANU for 2012.
I predict that in the buildup 2012;
1. Raila, Kalonzo, Ruto or Uhuru will only choose a verified KANUlet to be their running-mate should they contest for the Presidency or any other senior political position
2. The many committees that are to be formed to actualize the constitution before 2012 will be populate and or led by scions, associates and brotherhoods of KANUlets
3. Strategic de-campaigns and political harassments are going to intensify against KANUlet outsiders
4. There is going to be a lot of feel-good public make-ups between and amongst KANUlets.
5. The middle class is going to dig in to sustain the status quo through the rebranded KANUlets
My take?
Kenyan must remain vigilant against cheering on the KANU Racers. KANU took away from the people political authority and legal authority, but failed to take moral authority. Over the last 20 or so years, as evidenced in last year’s referendum, Kenyans have reclaimed legal authority.
Now we must reclaim our political authority. This must be done quickly, sharply and clinically, all else the KANUlets will use it (as they still have it) to roll back the legal authority we just secured a few months ago. The arena of this take-over is the political field. Persistently demand political accountability in media, in churches, in funerals, in the morning, evening and night. Thoroughly organise politically. Join political parties. Hold political rallies. Contest elections. Create and mobilize votes. Vote
This is their last bastion. Expect a hell of a fight!
Who is with me?
Thursday, 6 January 2011
A CASE FOR KISWAHILI
By ndolo asasa Esq.
In the year that Kiswahili got recognized at the highest legal level, constitutionally, for the first time in Kenya, it also got the poorest performance trend not only measured versus itself but also versus the other subjects at basic education examination level! This is both a big shame and a sharp wake up call to the nation Kenya.
My take is that the pupils performed poorly. It is not the marking that was poor.
This conclusion is premised on the reality that;
1. Teachers are pumping the pupils with kiswahili terminologies (istilahi) in the name of teaching msamiati.
2. Time allocated to teaching and use Kiswahili language both in class and outside class been kept to below bare minimum.
3. No extra-curricula activity is conducted in Kiswahili in addition to the expectation that only Kiswahili teachers should be speaking the language and only during Kiswahili classes.
4. The instructional and teaching books are almost exclusively developed by graduates and post-graduates – who do not and may never have taught pupils in their career development.
In addition, the larger population has urged on Kiswahili to mediocrity by;
a. Lowering the threshold of speaking Kiswahili. When someone, be it a child or adult, speaks in poor Kiswahili it is considered comedy; but if the same person does so in English or French, we frown, reprimand and effortlessly correct them!
b. Poor Kiswahili is accepted as being social, ya kuomba maji, and Kiswahili sanifu (good Kiswahili) is considered ya insha (for exams)!
c. The myriad radio stations, including, KBC-Idhaa ya taifa, churn out taarifa scripted in bad Kiswahili (news reports); conduct interviews in bad Kiswahili and take pride in playing and replaying songs and political statements made in bad Kiswahili. ACTUALLY, they seem to have a policy not to showcase good Kiswahili speeches and oratory!
d. The biggest barbs go to our political and administrative leadership.
I propose;
1) The starting point be that the new constitution be applied to the letter.
That Kiswahili being constitutionally THE ONLY NATIONAL language and the FIRST official language, all national occasions including holidays, state of the nation address, national communications by the President, Prime Minister, Speaker of the National Assembly, Constitutional Offices and Ministers be addressed in Kiswahili and the off-cuff remarks made in English!
2) All instructional materials for pupils be re-evaluated and revised accordingly.
3) The basic education curriculum be revised anon to take into cognizant and reflect the status of Kiswahili as envisioned and recognized in the new constitution.
4) Set-up and fund a Kiswahili Institute as a national responsibility. This has successfully been done by France, Saudi Arabia, China, Italy among others for the promotion of French, Arabic, Chinese and Italiano respectively.
I will be listening for the first state-of-the-nation address parliament by President Kibaki when it reconvenes for the first time under the New Constitution that puts Kiswahili on an unprecedented high national and official pedestal
Kiswahili Kitukuzwe, au sio? Tujivunie lugha yetu ya pekee ya Kitaifa na awali katika urasmi nchini Kenya!
http://ndoloasasa.blogspot.com/
6th January 2011.
In the year that Kiswahili got recognized at the highest legal level, constitutionally, for the first time in Kenya, it also got the poorest performance trend not only measured versus itself but also versus the other subjects at basic education examination level! This is both a big shame and a sharp wake up call to the nation Kenya.
My take is that the pupils performed poorly. It is not the marking that was poor.
This conclusion is premised on the reality that;
1. Teachers are pumping the pupils with kiswahili terminologies (istilahi) in the name of teaching msamiati.
2. Time allocated to teaching and use Kiswahili language both in class and outside class been kept to below bare minimum.
3. No extra-curricula activity is conducted in Kiswahili in addition to the expectation that only Kiswahili teachers should be speaking the language and only during Kiswahili classes.
4. The instructional and teaching books are almost exclusively developed by graduates and post-graduates – who do not and may never have taught pupils in their career development.
In addition, the larger population has urged on Kiswahili to mediocrity by;
a. Lowering the threshold of speaking Kiswahili. When someone, be it a child or adult, speaks in poor Kiswahili it is considered comedy; but if the same person does so in English or French, we frown, reprimand and effortlessly correct them!
b. Poor Kiswahili is accepted as being social, ya kuomba maji, and Kiswahili sanifu (good Kiswahili) is considered ya insha (for exams)!
c. The myriad radio stations, including, KBC-Idhaa ya taifa, churn out taarifa scripted in bad Kiswahili (news reports); conduct interviews in bad Kiswahili and take pride in playing and replaying songs and political statements made in bad Kiswahili. ACTUALLY, they seem to have a policy not to showcase good Kiswahili speeches and oratory!
d. The biggest barbs go to our political and administrative leadership.
I propose;
1) The starting point be that the new constitution be applied to the letter.
That Kiswahili being constitutionally THE ONLY NATIONAL language and the FIRST official language, all national occasions including holidays, state of the nation address, national communications by the President, Prime Minister, Speaker of the National Assembly, Constitutional Offices and Ministers be addressed in Kiswahili and the off-cuff remarks made in English!
2) All instructional materials for pupils be re-evaluated and revised accordingly.
3) The basic education curriculum be revised anon to take into cognizant and reflect the status of Kiswahili as envisioned and recognized in the new constitution.
4) Set-up and fund a Kiswahili Institute as a national responsibility. This has successfully been done by France, Saudi Arabia, China, Italy among others for the promotion of French, Arabic, Chinese and Italiano respectively.
I will be listening for the first state-of-the-nation address parliament by President Kibaki when it reconvenes for the first time under the New Constitution that puts Kiswahili on an unprecedented high national and official pedestal
Kiswahili Kitukuzwe, au sio? Tujivunie lugha yetu ya pekee ya Kitaifa na awali katika urasmi nchini Kenya!
http://ndoloasasa.blogspot.com/
6th January 2011.
Sunday, 2 January 2011
IN 2011, LOOKOUT FOR …
By ndolo asasa Esq.
Adage has it that ‘the new is always conceived in the womb of the old’, consequently by their actions or inactions and positioning or strategizing in the build up to 2011; I submit that the following institutions and or persons will play pivotal roles either in value or nuisance in shaping leadership and governance in Kenya in 2011.
• Judiciary
My take is that Judiciary is the single institution outside the people’s power that can and will either make the efforts of recreating Kenya as facilitated by the new constitution a complete nonsense or an actual realization of a true democracy as wished for by Kenyans.
The success of the Judiciary right from winning public trust, disputes resolutions to developing constitutionalism in Kenya, will be dependent on the interpretation availed by the Judiciary.
As such the Chairperson of the Judicial Service Commission (JSC), whoever it will be, is a person to watch. How the person will conduct and manage the vetting and subsequent supervision of the Judges, Magistrates and other judicial staff is the focus.
The Chief Justice is the other person whose skills, character and style will greatly shape the nation, Kenya.
• Parliament
Parliament has the sole responsibility of placing the constitution on proper footing as provided for in the fifth and sixth schedule. Parliament has so far been successful to pull wool over people’s eyes that they really are keen to implement the new constitution and will go to all extents to realize it including sacrificing their time! Whilst the truth is that, Parliament in collusion with the Executive and its protégés , has used time as a dictatorship tool. Illustration: when given a timeline of doing something in say 90 days, they start doing the said thing with so much gusto and zeal on the 88th day!
At such moments then what Parliament is involved in is DEALERSHIP and not LEADERSHIP! The pressure of time then is used to intimidate, coarse and secure cherries for themselves.
We thus are at a real risk of transiting from a Presidential and individualized dictatorship to a parliamentary and institutionalized dictatorship! Take note that because some Parliamentarians are being investigated by Kenya Anti-Corruption Commission (KACC) there is has been a muted call for disbandment of KACC. Because the Kenya National Human Rights Commission (KNHRC) has been vocal on use of state resources by Parliamentarians, there are calls for its disbandment. Because the International Criminal Court (ICC) has identified some Parliamentarians as suspects in organizing the 2007/8 post Election Violence, parliament voted almost unanimously for Kenya to pull out of ICC!
Our Parliament has a such a high affinity for self preservation and being parochial that the leadership of Kenneth Marende, Abdikadir Muhammed, Ababu Namwamba, and Kalonzo Musyoka will be an interesting watch. I throw in Martha Karua and Rachel Shebesh as a wild cards.
• The Grand Coalition Government
We have an Executive led by lame duck convenience arrangement of two Principals who either have no command of their troops or do not enjoy support of the same. Sometimes I suspect both! This is why they a myriad of times failed to rally their brigades at crucial moments and instead resorted weak-kneed-publicity-attracting strategies like ‘parliamentary kamukunjis’ and cheap public sympathy seeking stints like personally appearing in parliament at the flimsiest of public sympathy opportunities when their inability would be most evident.
Raila Odinga is the personality to watch in 2011. He has the unenviable capacity of by his words, actions or luck of them create un assailable lead in view of 2012 elections for himself or more easily, make it a dogfight with other contenders.
• Executive Commissions
Kenyans will, hope and aspirations will greatly be shaped by the leadership provided by Dr. PLO Lumumba at KACC, Mr. Charles Nyachae at The Constitution Implementation Commission (CIC), Mutakha Kangu of the Devolution Taskforce and Dr. Mzalendo Kibunjia at the National Cohesion and Integration Commission (NCIC).
• The Civil Society.
I am not expecting any tectonic movements in this sector. A few players though will either consolidate their niches or become irritants to the powers that be! My wish would rather that they gave hope to the masses, but they will not!
Key in the civil society will be Mwalimu Mati of Mars Group; he will expose more sleaze- what with his partnership with Assange of Wikileaks? Morris Odhiambo of the National Civil Society Congress (NCSC) will be the face of efforts of a united civil society assault on the government juggernaut! But Francis Atwoli of COTU will steal the limelight with unprecedented and overtly political activities of the trade movement during the year.
Anne Njogu of CREAW and Sophie Ngugi of Young Women Leadership Institute (YWLI) will provide the much needed breather from a mainly patriarchal civil society.
• The Clergy
The 2 referendums on the constitution (2005 and 2010) seems to have unwoven the fabric of the clergy amongst themselves and with the public in a manner they do not yet have a sufficient mechanism to undo! Their role in the 2011 governance discourse will mainly be uncoordinated articulate lamentations and as such might not shape the year a lot.
Still Sheikh Dor, Sheikh Juma Ngao, Cardinal Njue and Cannon Peter Karanja will be lone voices for sporadic governance matters from the Clergy.
• Diplomatic Missions
The diplomatic corps in Kenya in 2008 said that Kenya is too important to Kenyans, and in 2011 it will not be left to Kenyans either!
The African Union, United States of America Embassy and German Embassy will greatly influence the real politik of Kenya during this year.
• International Community
Yoweri Kaguta Museveni, President of Uganda; President Barrack Hussein of United States of America; and from the ICC - Prosecutor Luis Moreno - Ocampo, Presiding Judge Ekaterina Trendafilova, Judge Hans-Peter Kaul and Judge Cuno Tarfusser are the personalities whose words and actions will most influence Kenya governance from the international community.
Dated this 2nd Day of January 2011.
Adage has it that ‘the new is always conceived in the womb of the old’, consequently by their actions or inactions and positioning or strategizing in the build up to 2011; I submit that the following institutions and or persons will play pivotal roles either in value or nuisance in shaping leadership and governance in Kenya in 2011.
• Judiciary
My take is that Judiciary is the single institution outside the people’s power that can and will either make the efforts of recreating Kenya as facilitated by the new constitution a complete nonsense or an actual realization of a true democracy as wished for by Kenyans.
The success of the Judiciary right from winning public trust, disputes resolutions to developing constitutionalism in Kenya, will be dependent on the interpretation availed by the Judiciary.
As such the Chairperson of the Judicial Service Commission (JSC), whoever it will be, is a person to watch. How the person will conduct and manage the vetting and subsequent supervision of the Judges, Magistrates and other judicial staff is the focus.
The Chief Justice is the other person whose skills, character and style will greatly shape the nation, Kenya.
• Parliament
Parliament has the sole responsibility of placing the constitution on proper footing as provided for in the fifth and sixth schedule. Parliament has so far been successful to pull wool over people’s eyes that they really are keen to implement the new constitution and will go to all extents to realize it including sacrificing their time! Whilst the truth is that, Parliament in collusion with the Executive and its protégés , has used time as a dictatorship tool. Illustration: when given a timeline of doing something in say 90 days, they start doing the said thing with so much gusto and zeal on the 88th day!
At such moments then what Parliament is involved in is DEALERSHIP and not LEADERSHIP! The pressure of time then is used to intimidate, coarse and secure cherries for themselves.
We thus are at a real risk of transiting from a Presidential and individualized dictatorship to a parliamentary and institutionalized dictatorship! Take note that because some Parliamentarians are being investigated by Kenya Anti-Corruption Commission (KACC) there is has been a muted call for disbandment of KACC. Because the Kenya National Human Rights Commission (KNHRC) has been vocal on use of state resources by Parliamentarians, there are calls for its disbandment. Because the International Criminal Court (ICC) has identified some Parliamentarians as suspects in organizing the 2007/8 post Election Violence, parliament voted almost unanimously for Kenya to pull out of ICC!
Our Parliament has a such a high affinity for self preservation and being parochial that the leadership of Kenneth Marende, Abdikadir Muhammed, Ababu Namwamba, and Kalonzo Musyoka will be an interesting watch. I throw in Martha Karua and Rachel Shebesh as a wild cards.
• The Grand Coalition Government
We have an Executive led by lame duck convenience arrangement of two Principals who either have no command of their troops or do not enjoy support of the same. Sometimes I suspect both! This is why they a myriad of times failed to rally their brigades at crucial moments and instead resorted weak-kneed-publicity-attracting strategies like ‘parliamentary kamukunjis’ and cheap public sympathy seeking stints like personally appearing in parliament at the flimsiest of public sympathy opportunities when their inability would be most evident.
Raila Odinga is the personality to watch in 2011. He has the unenviable capacity of by his words, actions or luck of them create un assailable lead in view of 2012 elections for himself or more easily, make it a dogfight with other contenders.
• Executive Commissions
Kenyans will, hope and aspirations will greatly be shaped by the leadership provided by Dr. PLO Lumumba at KACC, Mr. Charles Nyachae at The Constitution Implementation Commission (CIC), Mutakha Kangu of the Devolution Taskforce and Dr. Mzalendo Kibunjia at the National Cohesion and Integration Commission (NCIC).
• The Civil Society.
I am not expecting any tectonic movements in this sector. A few players though will either consolidate their niches or become irritants to the powers that be! My wish would rather that they gave hope to the masses, but they will not!
Key in the civil society will be Mwalimu Mati of Mars Group; he will expose more sleaze- what with his partnership with Assange of Wikileaks? Morris Odhiambo of the National Civil Society Congress (NCSC) will be the face of efforts of a united civil society assault on the government juggernaut! But Francis Atwoli of COTU will steal the limelight with unprecedented and overtly political activities of the trade movement during the year.
Anne Njogu of CREAW and Sophie Ngugi of Young Women Leadership Institute (YWLI) will provide the much needed breather from a mainly patriarchal civil society.
• The Clergy
The 2 referendums on the constitution (2005 and 2010) seems to have unwoven the fabric of the clergy amongst themselves and with the public in a manner they do not yet have a sufficient mechanism to undo! Their role in the 2011 governance discourse will mainly be uncoordinated articulate lamentations and as such might not shape the year a lot.
Still Sheikh Dor, Sheikh Juma Ngao, Cardinal Njue and Cannon Peter Karanja will be lone voices for sporadic governance matters from the Clergy.
• Diplomatic Missions
The diplomatic corps in Kenya in 2008 said that Kenya is too important to Kenyans, and in 2011 it will not be left to Kenyans either!
The African Union, United States of America Embassy and German Embassy will greatly influence the real politik of Kenya during this year.
• International Community
Yoweri Kaguta Museveni, President of Uganda; President Barrack Hussein of United States of America; and from the ICC - Prosecutor Luis Moreno - Ocampo, Presiding Judge Ekaterina Trendafilova, Judge Hans-Peter Kaul and Judge Cuno Tarfusser are the personalities whose words and actions will most influence Kenya governance from the international community.
Dated this 2nd Day of January 2011.
Monday, 20 December 2010
DEMYSTIFYING THE NEW CONSTITUTION
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.
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.
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