National Council of Churches of Kenya

PS- Permanent Secretary

AG- Attorney General

CDF- Constituency Development Fund

CoE – Committee of Experts

DPP- Director of Public Prosecution

MP- Member of Parliament

NA- National Assembly

NLC- National Land Commission

PCK- Proposed Constitution of Kenya

- The PCK in Article 2 (6) makes all conventions and treaties that have been ratified by Kenya automatically part of the law of Kenya.

- The Vienna Convention on Law of Treaties, which represents customary international law on the subject, and which Kenya has signed, provides that the Head of State or the Head of Government or the Minister in charge of Foreign Affairs or such other person who has been given the Full Powers (ordinarily, this is a member of the Executive) can ratify a treaty on behalf of the Country.

- The practice as it is now is that Cabinet decides on whether Kenya should ratify a particular treaty or not and if a treaty is ratified, the same would apply in Kenya once it is domesticated by Parliament.

- The Bomas, Wako and the previous drafts under this review, had provisions for Parliament to approve treaties before Kenya became a party to them.

- By virtue of Article 2(6) in the PCK, there is legitimate concern that international law would likely apply without domestication by Parliament. This is because, though Parliament in Article 94(5) has been given the power to make provisions having the force of law in Kenya, it is not explicit as was the case in the previous drafts, that Parliament has any role on ratification.

- Given how Article 2 (6) has been worded, a lot is not clear and it raises concern. Would it begin to apply ONLY on new treaties to ratified after the effective date?

- What happens to treaties that are already ratified by Cabinet before the effective date? Does it mean that they would automatically become part of the laws of Kenya? If this is to be the case, will not the Executive(Cabinet) become the law making body in

exclusion of Parliament?- Would not this have breached the doctrine of separation of powers, and denied Kenyans the sovereign right to legislate?(Article 94 (1))

- There is risk therefore of direct application of international laws which may have negative effects to our fabric as a society, our socio-economic lifestyles, national financial obligations etc

- There should be no legislation without representation. Legislation must be made on behalf of the people of Kenya by their elected representatives.

- Article 8 of the PCK provides that there shall be not state religion. This is an important clause and it is good that it has been captured.

- The Bomas, Wako and Harmonized Drafts expressly provided that the State shall treat all religions equally

- The PCK, provides under Article 14 (4), that "A child found in Kenya who is or appears to be less than eight years of age, and whose nationality and parents are not known, is presumed to be a citizen by birth"

- While it is appreciated that a child under the age of 8 is legally not capable of having a criminal mind and his/her best interests should be taken care of, the wording of this clause leaves a lot of loopholes for possible mischief.

- One of the foreseeable risks is that it can cause increased trafficking of children into Kenya. Secondly, it makes it very easy and possible for the manipulation of the Kenyan population by persons who may have sectarian interests.

- Ultimately it makes it easier for our borders to be exploited.

- Section 17 (2) is insufficient as a protective remedy, when it comes to the realities on the ground.

- Article 24 (4) provides that the provisions of the Bill of Rights on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance

- While acknowledging that equality is one of our aspirations as seen in the Preamble and also one of our values, as seen in Article 10, the PCK goes ahead to exempt a section of our fellow Kenyans – Muslims - from the protection of equality and freedom from discrimination. It is envisaged that it is the Muslim women in particular who will most be exposed.

- Some of the relevant provisions on equality for which Muslim women and children will be exempted include equal protection of the law and equal benefit of the law, equality during termination of a marriage, equal parental responsibility with respect to children and such like.

- The risk is that it sanctions inconsistency and negative discrimination in the Constitution, by adhering to equality as a value for all Kenyans, yet at the same time, approving a culture of inequality for some of the vulnerable members of our society in matters of personal status, marriage, divorce and inheritance.

- While Article 170(5) provides that what happens in the Kadhi Courts only affects those who submit to it, it is debatable whether those who are vulnerable in society will be able to have a choice and ability not to submit. It is these vulnerable persons in society that the Constitution is meant to be sensitive of and protect.

- Further, this section has the effect of making Islamic law special and higher than the national constitution in the matter of equality. Why?

(b)    Article 24 (5) (e) - Limitation of Bill of Rights to Police and Military.

- Article 24 (5) (e) provides that despite clause (1) and (2), a provision in legislation may limit the application of the rights or fundamental freedoms in the provisions of Article 43 (Economic and Social Rights), to person serving in the Kenya Defense Forces and the National Police Service.

- Article 43 provides that every person has the right to the highest attainable standard of health, accessible and adequate housing, social security and education.

- Most of these provisions in Article 43 promote human dignity. In Article 28, we recognize that every person (which includes the Police) has inherent dignity and the right to have that dignity and respected and protected.

- Is it not inconsistent, to therefore allow Parliament to pass a law that has the potential of limiting the right of every policeman/woman or army personnel, to have a dignified life? How will such legislation impact the civilians, given that it is them who are the beneficiaries of the Police Service?

- There can be no logic in limiting the social and economic rights of the police and military.

(c)    Article 26- Right to Life

- Article 26(3) provides that a person shall not be deprived of life intentionally, except to the extent authorized by this Constitution or any other written law.

- Our current Constitution under Section 71, for example is bolder on when exactly life can be taken away. Is it foreseeable that to leave such an important/fundamental aspect of our Bill of Rights to future legislation is to embrace a culture of liberalization of death/killing?

- The risk is that this leaves a lot of lee-way to the Executive, enjoying the backing of a majority in Parliament, to pass laws that would allow for the intentional deprivation of someone’s life.

- Currently it is true to say that there are many laws that have been passed by Parliament, which Kenyans do not know. Is not the Constitution meant to clearly set out when life can be taken

away, rather than leave it to an Act of Parliament whose contents may not be known by Kenyans or even accessible to Kenyans?

- For example, in 2005, Human Rights Organizations registered their protest and disapproval of the proposed Anti-Terrorism Bill which provided for among others, that the Police and other Officers would have the power to use reasonable force in the performance of their work and if in the exercise of such powers death or injury to a person or loss or damage to property is occasioned, they are indemnified from any claim in any civil or criminal proceedings, which Blanket Immunity was deemed to be open to abuse.

- This provision deliberately or otherwise opens the door to "mercy killing"/euthanasia and assisted suicide as was the case in Belgium, Netherlands, as well as the possible killing of people deemed "unviable".

- Article 26 (4) provides that abortion is not permitted unless, in the opinion of a trained health professional there is need for emergency treatment or the life or the health of the mother is in danger or if permitted by any other written law.

- In essence, sub article 4 provides that abortion is not permitted unless it is permitted. The circumstances under which it is permitted, are now what create the bone of contention and which are briefly discussed as hereunder:-

- Save where the life of the mother is truly in danger, abortion is not permitted. This is whether the abortion would be procured by a registered medical practitioner or any other health professional because of the sanctity of life and any other reason does not meet the higher threshold to derogate from the right to life.

- The term "trained health professional" could be the Para-medics which include community nurses, lab technicians, dispensary workers etc. To leave this interpretation to the Courts or to Parliament for definition, will be a gamble not only with the life of the mother and the unborn child, but also with the nobility of the medical profession.

- The Risk is that the person being referred to here is not a registered medical practitioner; this means that, the only threshold to be met is a "training" and not a "qualification". This means that even the health professionals now being referred to as quacks, will after the passing of this PCK, be relied upon to opine on the need for abortions.

- Secondly, there being no guarantees of safe normal deliveries, how much more for abortions? To expose the mother to non-medical practitioners is to disregard the sanctity of her life. However, as earlier stated, abortions even by medical practitioners (unless where the life of the mother is in danger) should not be allowed.

- In most, instances, abortion is actually surgical. It is also said that complications often arise during this process. E.g. blood pressure, excessive bleeding, etc. This therefore raises questions of skills, facilities and equipment, etc.

- Currently, the law only allows registered medical practitioners to carry out surgeries after several years of training and exposure. They do so with access to the necessary facilities and equipment. To therefore leave issues of surgery to non-medical practitioners is to risk the health of the woman. We may end up having more maternal deaths.

- It is noteworthy, that opinions differ from one doctor to another. However, the operation is irreversible.

- Thirdly, this is made worse by the fact that, it will be their (i.e. the aforesaid professionals) opinion that will determine whether the child should live or be killed. Yet the medics inform us, that in the current practice, the decision to abort where the life of the mother is in danger is highly checked.

- Again, in the criminal trial process, even when someone is charged with murder, which currently carries a death sentence, the accused person is never tried by paralegals. Indeed murder trials are never placed before magistrates, they have to go before more experienced judicial officer, i.e. the Judge, who is assisted by at least two independent assessors, and his decision can be appealed from. Is it not foreseeable that we are risking the lives of many women and children?

- Fourthly, the trained health professionals do not ordinarily have a professional indemnity cover, however, registered medical practitioners, are required to have such a cover to curb against professional negligence.

- Fifthly, though it has been argued that in remote areas, the life of the mother may be in danger and yet medical practitioners are not available, hence the need to state trained health professionals, the question is, would it have been easier to obligate the state to provide medical practitioners in those areas or to lower the standard of health care for the woman, by exposing her to non-medical practitioners as discussed above?

- The term "health" as referred to in the PCK, is defined by the WHO as a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.

- Read together with Article 43, it means that a person can procure an abortion on non-life-threatening situations, but on mental, psychological, social and economic grounds.

- This term is arguably the broadest justification in the legalization of abortion as it also includes non-life threatening socio-economic factors which ultimately is a consideration for one’s psychological health.

- The Risk is that this term could not only be the loophole of justifications for abortion, but the highway to procure the same without boundaries.

- If for example a woman through ultra-sound could tell that her baby was going to be deformed and develop stress on this ground, her mental/psychological health would be in danger, hence abortion would be the preferred option. In UK for example, unborn babies have been aborted on this ground, despite the fact that with technology, most of these deformations are surgically treatable. Is this what we as Kenyans want to embrace? The Draft Reproductive Health Bill, 2007 provided for abortion where there is a severe fetal anomaly. And would this not be inconsistent if this is read with Article 54 of the PCK, which provides for the protection of the rights of persons with disabilities?

- The inclusion of the words "there is need for emergency" are also not without concern. To start with, if the person being protected is indeed the woman/mother, then it is superfluous to include these words - there is need for emergency. This is because, it has already been stated that abortion is permitted where the life of a mother is in danger.

- The risk is that, with this clause, persons intent on procuring an abortion would "manufacture" or "create" or "manipulate" emergencies that are not prejudicial to the child.- e.g. Swallowing pills that falsely induce bleeding,

- The term "or any other written law" includes Acts of Parliament and treaties and conventions and even protocols, that allow for abortion. These are elaborated below:-

- On Acts of Parliament: - The Risk is that, as has been the case since 2007, there have been attempts to legislate the draft Reproductive Health Bill, which though having good provisions on reproductive health, also, provided for abortion on demand. With the passing of the PCK, these efforts would be rekindled and the bill may be passed.

- This is further supported by the provision in Article 43 (1) which states that "Every person has the right to the highest attainable standard of health which includes the right to health care services, including reproductive health care."

- Further, if Article 43 is read together with Article 21(2) which demands that the State shall take legislative policy and other measures to achieve the progressive realization of the rights guaranteed under Article 43 which include Reproductive Health Rights, it is only a matter of time before we have such an Act of Parliament.

- On International Law:- Right to Abortion as provided in Article 14 of the Maputo Protocol To The African Charter On Human And Peoples' Rights On The Rights Of Women In Africa. Kenya has signed it, but has not ratified it. If ratified it will form part of the law of Kenya under the Constitution. (see comment on Article 2(6) above )

If the PCK is approved, the risks herein include but are not limited to:-

1. It will deny the unborn baby an opportunity to live and violates the inherent dignity of the child.

2. The mother’s right to abortion will override the health professional’s freedom of conscience and the child’s right to life.

3. The maternal mortality rate will subsequently increase as the mother’s life will be subjected to the hands of a "trained health professional" who may not be qualified.

4. It highlights the contradiction in practice, in that death penalty for the guilty is being phased out but being introduced to the innocent unborn.

5. Abortion carries serious psychological effects not only for the woman but also for the man and the health professionals. The effects can also be physically manifested.

6. It wipes away generations in the crudest of ways for the most selfish reasons.

7. It enhances discrimination to the unborn child, whose life though recognized, can be taken away at the will and instance of the mother’s choice in support with legislative framework.

8. In a country where the most common illnesses like malaria cannot be adequately handled by the health sector, how much more abortions which require extensive medical attention?

9. It ultimately introduces a culture of killing. Was it not Mother Teresa who once said: "Any country that accepts abortion is the poorest of the poor. Abortion is a war against the child…A direct killing of the innocent child, murder by the mother herself… And if we can accept that a mother can kill even her own child, how can we tell other people not to kill one another."

10. It shows a devaluation of life contrary to Article 26(1) that "Every person has a right to life."Life is sacred and only the giver has the right.

Further, if the Draft Reproductive Health Bill was to pass:-

1. Termination of the pregnancy at any time during the first 12 weeks. (Isn’t this murder?)

2. Termination of pregnancy by a minor, without the binding consent of the parent/guardian. (Isn’t this a forced and outright accommodation of parental neglect?)

3. Termination of the pregnancy without the consent of the spouse. (Isn’t this an outright denial of the father to play a protective role to his unborn child?)- However this is not to say that the spouse’s consent would make it legitimate.

- Pope John Paul II once said to America,: "The ultimate test of your greatness is the way you treat every human being, but especially the weakest and most defenseless. If you want justice for all and true freedom and lasting peace, then America, defend life". The same applies herein.

(e)    Article 27- Equality and freedom from discrimination

- Article 27 (4) provides that the "State shall not discriminate directly or indirectly against any person on any ground".

- Article 27 (5) states that a person shall not discriminate directly or indirectly another person on any grounds specified or contemplated in Article 27 (4). The grounds stated are "any ground."

- This means, among other things, that a private citizen, a church, an organization, cannot discriminate on such grounds as sexual orientation or qualification for a job. The current constitution is clear that one cannot be given a job for which one does not qualify and that such is not discrimination. In some countries, this has been used to force churches to cede their facilities for marriages of gay couples. Combine this with Article 32 (3) and the private Kenyan has no right to protect his conscience.

(f)    Article 29- Freedom and Security of the Person

- Provides every person has the right to freedom and security of the person, which includes the right not to be subjected to corporal punishment.

- The Proposed Constitution does not define corporal punishment. While excessive force and occasioning of injurious harm to children should never be tolerated, it is much appreciated that

discipline by parents may at times involve some forms of physical punishment, hence why parental corporal punishment is still acceptable in the United Kingdom and other states.

- The Risk is that it is therefore foreseeable that until parliament enacts a suitable legislation, certain forms of reasonable physical punishment by parents, shall be prohibited.

- Parliament has no time limit to enact this legislation.

- Parental discipline must be specifically protected.

(g)    Article 32- Freedom of conscience, religion, belief and opinion.

- Article 32 (2 ) provides that: "Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship."

- This should be compared with the section 78(1) in our current Constitution;- " Except with his own consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this section that freedom includes freedom of thought and of religion, freedom to change his religion or belief, and freedom, either alone or in community with others, and both in public and in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance."

- There has been concern on the current wording of this provision. Why were the words "to propagate one’s religion and freedom to change, excluded, despite numerous requests by religious organization such as the Church?

- Will it then be foreseeable that a Kenyan can be denied the right to change his religion? Or to manifest his religion by propagating it? Manifesting is not enough to mean propagate!

- What Art 32(3) provides for that "A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion?

- This may mean that, it will only be where the PCK expressly provides otherwise (e.g. Kadhis’ Courts, religious practice (art 32(2) etc) that it would be permissible to discriminate based on religion.

- Yet the reality is that there are many religiously run institutions such as schools and other private institutions which are reasonably left open only to persons of that community or faith. This position is expressly recognized under Section 78 (2), (3) and (6) of our current Constitution.

- The freedom of religion is being diminished by the PCK. The facilities of religious organizations are not protected. How will faiths keep doctrinal purity in their schools, hospitals, colleges or places of worship? Such a provision should only apply to State facilities.

(h)    Article 33- Freedom of Expression.

- Freedom of artistic creativity – if not defined often ends up as a simple term for pornography. Indeed, in the USA the Courts have used this as a ground not to restrict pornography. Why did the CoE have to remove from sub article (2), the express prohibition of pornography, as was inserted by the PSC in their draft-at Naivasha? Pornography may include public nudity and nude parties.

- Secondly, there is risk given that due to the casual way these rights have been worded, we may potentially find ourselves hindered from ever expressing our opinions on issues to do with race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress and language. This has happened in countries like the UK and Canada, where even Christian preachers have been prosecuted for hate speech, for example for preaching against homosexuality, atheism etc

- Thirdly, there is risk that given how the freedom has been worded, it may be used by the State to curb the freedom of expression whereby non-mainstream advocacy can easily be construed to mean "incitement", "hate", "propaganda" or "vilification" as was the case during the fight for a democracy.

- Fourthly, hate speech is not defined. In some countries, preaching against some sins has been termed as "hate speech" and preachers jailed for it.

(i)    Article 34-Freedom of the media.

- Under Article 34(1), the rights and reputation of others (covered under Article 35 (3), is not one of the items, against which the freedom of the media is restricted. Does this mean that the media will be un-hindered from publishing/broadcasting or disseminating information which is likely to infringe on rights and reputation of others?

- Secondly, while there are gains that have been made, the provision leaves out the prohibition of Media freedom to extend to pornography. The PSC meeting in Naivasha, had included it, but now it stands removed.

- Thirdly, it also fails to capture public interest in ensuring fairness in airwaves, access to information, decency, etc

- Lastly, the Article provides for a regulatory body, which though detached from government/political or commercial interests, it is reasonable to foresee that this commission will be a toothless bulldog. Its mandate is simply to monitor and not to ensure compliance. Compare the reading with Article 79 which set up an ethics and anticorruption commission whose mandate is extended (and properly so) to ensuring compliance.

- Danger: It is possible to foresee Media Houses being un-stopped from showing/circulating/broadcasting pornography or morally depraved content without recourse.

(j)    Article 35- Access to Information.

- The unregulated right to access information held by the State and information held by any other person if deemed necessary for the exercise or protection of any right or fundamental freedom could have serious implications for the safety and security of our country, and also for the rights of organizations to hold private and confidential information relating to matters of conscience.

- One would ask, how would this relate with the obligation on State officers not to divulge information, as would be required by them as provided for in their Oaths. (Schedule 3 of the PCK.)

- Also, the person entitled to access information under Article 35 is limited to a citizen/a natural person, and excludes non-natural persons.

- Parliament has not been given an express obligation to make this provision operational.

(k)    Article 45 – The Family

- Kenyans had asked during the constitution-making process that there is a clear prohibition of same sex marriages, as a way to defend our families.

- Both the Bomas and Wako drafts therefore had a clear provision stating, "A person shall not marry another person of the same sex."

- This provision has been removed in the PCK which states in Article 45 (2) that; "every person has the right to marry a person of the opposite sex, based on the free consent of the parties." (as can be seen this does not prohibit someone from marrying a person of the same sex)

- The manner in which Article 45 has been worded, opens a loophole through which future Courts could interpret the constitution in light of international practice, as providing for a right to same-sex marriages as was the case in South Africa.

- This document does not prohibit same sex unions or marriages to the extent that it does not define marriage.

(l)    Article 49- Rights of Arrested Persons

- Under Article 49(1) (g), of the Proposed Constitution, there is a possible risk that one can be detained without trial and this would be for an unknown period of time.

- The conditions for bail or bond are not clarified, in terms of minimum and may therefore be prohibitive.

(m)    Article 53 – Children

- The Children’s Act (no. 8 of 2001) provides parents with basic rights under the definition of parental responsibility (section 23(2)), including the right to give parental guidance in religious, moral, social, cultural and other values. It also gives children special duties (section 21) to work for the cohesion of the family and to respect their parents at all times and assist them in case of need. These parental rights and child duties were introduced in order to retain the proper hierarchy in the family and to foster family autonomy from undue state interference.

- Unfortunately, this approach is lacking from the PCK, which only sets out rights for children without any duties, and duties for parents without any rights. The serious risk is that unless legislation is enacted, the rights of the child transform into an intrusive power (of the state) to supervise parents and intervene against the parents’ reasonable choices in the upbringing of their own children.

- The spirit of parental rights is missing in the PCK.

- The word "minorities" has not been defined. There is a risk that it will be open to sectarian interests in future and whose practices may be detrimental to the fabric or security or health of the society.

- It is not clear what exactly would happen. The word "ancestral" has not been defined and the National Land Policy is also silent.

- Nonetheless, we would expect that the provisions of Article 40 on the Protection of the Right to Property, would apply.

- There is reasonable concern that the clauses on land will create community land identifiable on the basis of ethnicity and which will extend to ancestral lands. This is a recipe for problems between communities, for minorities living in different parts of this country, and for national harmony, given that many Kenyans have migrated and live away from what would actually be referred to as their "ancestral lands."

- Further, this threatens the concept of "private land" in that it creates a situation where communities may see owners of private land as depriving them of their "ancestral land."

- There is also potential conflict between Article 63 (2) (d) (i) and (ii) and Article 62(1) (g) as regards, certain Public land which would now be referred to as community land e,g the Mau Forest and Lake Bogoria.

Article 65, the PCK provides for conversion of leases held by non-citizens from 999 years to 99 years, when does the 99-year period begin to run?

- The Proposed Draft is silent on that. One way of looking at it would be that the tenure starts to run from the effective date of the Constitution or the other way would be that the tenure commences from the date when the lease was first granted. If meant to apply from the date of grant, would it not be unfair, for such a land owner, who will lose his property. The PCK should have been clearer. Article 65 (2) suggests that some leases may already have expired?

Again, under the aforementioned Article 65, will the reduction of the non-citizen’s leasehold terms from 999 to 99 years be accompanied by compensation?

- This may not be true. There is reason to believe that the obligations to provide adequate compensation will still prevail as provided under the Governments obligations- Paragraph 7 of the 6th Schedule.

- Their land is converted from 999 to 99 immediately upon the effective date. However it fails to address whether it will compensate the proprietors on the effective date. Indeed it is assumed that the issue of compensation will be addressed in an Act of Parliament, however, Parliament has up to 18 months to address this issue. What happens in the meantime?

Given that Article 67 (2)(8) provides that the NLC is to encourage the application of traditional dispute resolution mechanisms in land conflicts, does this mean that women may end up being disenfranchised, knowing that some of our traditions have been disfavourable to women?

- There is indeed need to embrace alternative dispute resolution mechanisms so as not to belabor our courts whilst at the same time exploiting local remedies.

- However, unlike the Bomas and Wako Drafts, which expressly provided for; " the equal right for women to inherit, have access to and manage property."The PCK has save for Article 27 (3) and other articles on equality, been very shy about this issue. Even Article 40 is not bold about it.

- The risk is that, it exposes women to unnecessary litigation

- Whereas provisions on minimum landholding of (private land) can be justified on sustainability/viability, it is not clear how Parliament will go about it. In 2005, through Legal Notice no. 64 of 2005, the Government directed that no consent would be given by the Land Control Boards to subdivide any agricultural land into two or more parcels to be held under separate titles if the size of any of the resultant parcels will be less than one hectare. (2.47 acres). (The directive is said to have later been suspended)

- The PCK has taken this a notch higher, by stipulating that there will be a minimum landholding. If 2.47 acres minimum used in 2005 is anything to go by, then there is a valid question as to how Parliament would go about it. Would people’s lands which are below the prescribed minimum be taken away and later compensated for? The PCK is silent and Article 40 on Protection of right to Property is also not categorical about it. Would this be restricted to the agricultural land or even land for other uses? What happens in the urban areas? Might this also condemn poorer Kenyans to eternal landlessness?

- As for maximum land holding, it is appreciated that in the past, we have had people own large tracts of viable land, which they are not using, while other Kenyans languish in landlessness. Some of these acquired their lands justly while to others it was unjust. But for those who have acquired their lands justly, can it however be safely said that once their land is taken away by Government, will they be compensated? The PCK is silent and Article 40 on Protection of right to Property is also not categorical about it.

- The National Land Policy is regrettably also silent on this, but it would be hoped that the rule of law and natural justice would apply nonetheless.

Article 67 (g) read with Article 209 (3) (a), provides for the taxation of land and premiums on immoveable property. What will happen, to the majority of Kenyans in the rural areas, who use their land largely for subsistence farming and may ultimately not be able to pay the imposed taxes? Will not majority Kenyans be rendered landless/squatters?

- The PCK does empower county governments to impose taxation on property. (i.e. land and developments thereon) However it also directs that such taxation, ought to be done in a way that would prejudice national economic polices.

- The National Land Policy, does mention the benefits of land taxation, which include optimum utilization of the land (so as to discourage land speculation, and idle land) as well distribute the benefit of land rights by mobilizing funds.

- It is nonetheless also valid to state that such taxation on property, if not well designed or administered, would lead to small land holders being disenfranchised. It will be up to the National Land commission to assess taxes that are not burdensome.

- The burden would therefore be on Kenyans to be watchful of how the tax would be assessed and imposed.

6.    CHAPTER SEVEN – REPRESENTATION OF THE PEOPLE

(a)    Article 81- General principles for the electoral system

Article 81(e) requires that the electoral system shall comply with free and fair elections. This is however inconsistent with Article 86 (a) which allows for whatever voting method.

(b)    Article 87 –Electoral Disputes

Article 87(3) provides for service of a petition by direct service. The concern raised is; what exactly is meant by direct service? Is it personal? Can service by post or electronic means, be considered as direct?

(c)    Article 89-Delimitation of Electoral units

Article 89 (5) (b) provides that boundaries of constituencies may be determined on among others, the basis of "community of interest" . However Community of interest has not been defined. Could it mean tribal groupings?

7.    CHAPTER EIGHT- THE LEGISLATURE (PARLIAMENT)

The number of MPs in Parliament will be increased from 222 to be 417 members of Parliament and Senate. (Articles 97 and 98). This is good for politicians, but against the expressed majority will of Kenyans who did not want a bigger Parliament.

(a)    Article 94 Role of Parliament

The Article is silent on who has the responsibility to approve the ratification of treaties as is the case in many other constitutions and as was captured in the Bomas and Wako Drafts

(b)    Article 121- Quorum

Article 121 provides that quorum for parliament shall be Fifty. While it is appreciated, that the quorum must be such that would not cripple parliament and Government business, there is concern as to whether such a quorum would be sufficient, given the sensitivity of the laws that would be passed by Parliament (Article 122 (1) )subsequent to the adoption of the PCK?

- These shall be appointed by the President subject to the approval of the National Assembly. However it is silent on whether the President and the National Assembly would be required to appoint persons who have the necessary minimum qualifications, (The previous drafts had provisions for this, e.g. Harmonized Draft) maximum age limits etc

(b)    Articles 155 & 156 - The Principal Secretaries & the Attorney General

- It fails to provide clearly, how the Attorney General can be dismissed or vacate office. Previous drafts had a term limit

- Even Article 75 (2) which is a general provision for the dismissal of State offices, still makes mention of contemplated disciplinary procedure for the AG’s office, which is not mentioned in Article 156.

- Further more, Article 156, does not contemplate future legislation by parliament in so far as it relates to his/her tenure!

- This position radically differs from that of the Director of Public Prosecution (Article 157 and 158) which elaborately capture the appointment, tenure and removal of the DPP; does this mean that Kenyans would be stuck with an Attorney General? How will this impact on Kenyans, given the critical role played by the Attorney General?

- The same concern applies to the provisions of Article 155 on Principal Secretaries. If such a PS does not resign or retire, will the President need the National Assembly’s approval prior to dismissing a Principal Secretary? Is there an Act of Parliament contemplated under this Article that would guide on the relevant disciplinary procedure mentioned in Article 75(2)?

9.    CHAPTER TEN- THE JUDICIARY

(a)    Article 166: Appointment of Judges

- In this PCK, only the Chief Justice and the Deputy Chief Justice shall be appointed with the approval of the Parliament. This is a shift from the expectation of Kenyans, that the Judges would not be purely presidential appointees, without the vetting of Parliament. How different is this position from the current? How will the rot in the judiciary be prevented?

- Again, notably, under Article 166 (4) and (5), the qualification for the appointment of the Court of Appeal judges and that of the High Court judges are the same.

(b)    Article 169-170; The Kadhi’s Courts

There is objection to the inclusion of the Kadhis Courts in the Constitution for among others, the following reasons:-

- There is reason to believe that the inclusion of Kadhis Courts violates the cardinal value of Equality which we have chosen to embrace as a Nation as captured in the Preamble Article 10 ( b) which addresses our National Values and Article 27 (1 & 2) which address Equality and Freedom from Discrimination;

- If Kenya has chosen to embrace equality, why does the Constitution favour one religion over and above others, yet Kenya is a multi-religious state?

- There is reason to believe that there have been express efforts to favour one religion, hence, the provision in the previous drafts, (Bomas, Wako, Harmonized Draft and PSC Draft) that provided for all religions to be treated equally was deleted? No justifiable reason has been given. Is there not possibility therefore, that individual religions will continue being favored in the future, to the prejudice of others?

- Article 169 provides that, the entrenchment of Kadhi’s Courts, creates the Office of a Chief Kadhi and other Kadhis, which is to be treated in like manner as other sub-ordinate Courts, meaning that it is a public office. However despite being a public office, it is only accessible to persons professing the Islamic Faith (Article170 (2)). This is discriminative and promotes inequality on the basis of religion.

- Despite the fact that all Kenyans are meant to be entitled to equal protection before the law and has the right to equal protection and equal benefit of the law, Muslims are also exempted from the application of the provisions on equality (Article 24(4)) to the extent necessary for the application of Muslim Law in matters of personal status, marriage, divorce and inheritance).

- Kadhi Courts in determining matters before them will be guided by the Quran, as their source of law. Therefore, with the establishment of the Kadhi Courts, Islamic Law will become one of the sources of Law recognized in the Constitution, yet other religious laws are not recognized in the Constitution.

- When it comes to Government support for religious dispute resolutions mechanisms (even on personal law) Islamic religion is unfairly favoured against others. It is Government resources that are expressly used to enforce a Kadhi’s Orders (police, etc) However this is not the case for other faiths.

- The right to freedom of worship is sufficient to give adherents to any faith the right to resolve their disputes in accordance with their belief system without having to go to the courts of the land. It is superfluous to include the Kadhi’s Courts.

- There does not appear to be any justification to treat Islam as a minority faith who require special protective provisions. (The Hindu’s are an even smaller minority but their dispute resolution systems have not been included.)

- The extension of the jurisdiction of the Kadhis Courts was done without consultation with other religious groups, despite continuous opposition or request for talks.

- Other countries such as Indonesia, India, South Africa and the United Kingdom have successfully upheld the right to worship without the inclusion of religious courts in their constitutions.

- The extension of the jurisdiction of the Kadhi’s courts beyond the 10-mile strip is unjustified even on the basis of history.

- Indeed there are some areas that are too large to be classified as a county along the same lines as the others. It is therefore legitimate for certain communities within these districts, who consider themselves minorities, and who would have preferred to have a county of their own, to express their dissatisfaction on how the units were structured.

- It is also debatable, as to whether it is fair representation, to have both counties with over many constituencies/residents e.g. Kakamega which has 8, while other counties with less constituencies/residents, to both be represented by a single Senator each.

Nonetheless, under Article 94 and 188, the Constitution does provide for periodic review of these boundaries by Parliament. Further, a delicate balance must always be maintained between representation and financial ability to sustain that representation.

(b)    Will the level of devolution will be expensive to taxpayers

- This is a genuine concern. The manner, in which devolution has been provided for under the PCK, reflects a failure to include responsibilities to be assumed by the devolved units including counties' own economic potential and sustainability.

- While there will be a coordinated effort to assist in distribution and sharing of revenue, little is mentioned about a coordinated effort to ensure generation of revenue.

- The Fourth Schedule of the Draft Constitution gives the County Government powers in 14 areas including; Agriculture, health services, control of pollution, cultural activities and entertainment, county transport, animal control and welfare including licensing of dogs, accommodation and burial of animals, planning and development, pre-primary education and village polytechnics, county public works including water and sanitation services, fire fighting and disaster management, and control of drugs and pornography.

- Article 203(2) of the proposed constitution devolves "not less than fifteen percent of all revenue collected by the national government".

- Article 203(3) stated that the devolved amount shall be "calculated on the basis of the most recently audited accounts of revenue received as approved by the National Assembly". Using recent statistics, In the Financial Year 2008/2009, Kenya Revenue Authority collected about KShs 500 Billion. 15% of 500 Billion is KShs 75 Billion. If the amount is divided equally among all the 47 Counties, each will get KShs 1.6 Billion.

- It is not clear whether the funds that have been used to run the Public Administration would also be paid to the counties. In any event, this amount may not be adequate to cover the cost of recurrent and development expenditure of the County.

(d)    How much money is devolved currently compared with the amount proposed by the Proposed Constitution?

Currently, the devolved funds are made up of the following:

(e)    Will there be CDF and other decentralized funds under the proposed constitution?

- The PCK does not expressly provide for CDF. Currently CDF is governed by an Act of Parliament.

- It is hoped that CDF would stay. However this is debatable. It is also debatable whether, they will be under the control of the counties or still under the control of the MPs.It has been said that currently the CDF’s greatest weakness is the mismanagement starting with the MPs.

- Article 207 states that a Revenue Fund for each county shall be established. All funds raised or received by or on behalf of the county government shall be deposited into that Revenue Fund.

- However, Article 207 states that parliament may exclude certain funds from being received by the Revenue Fund. MPs may therefore use this provision to continue managing the CDF and other funds without involving the county governments.

(f)    Will the County Government have power to tax its people?

- Yes. Article 209(3) provides that a county may impose property rates, entertainment taxes and "any other tax that it is authorized to impose by an Act of Parliament".

- The constitution defines property to means "any vested or contingent right to, or interest in or arising from: land, or permanent fixtures on, or improvements to, land; goods or personal property; intellectual property (like songs and art); or money, chooses in action or negotiable instruments.

- In addition, Article 209(4) allows a county to "impose charges" for services they provide to wananchi.

- It is therefore foreseeable, that "mwanachi" would be heavily taxed. It is hoped that the funds raised would be used accountably.

(g)    Who will be the staff of the County Government?

- Article 235(1) states that a county will have the power to "establish and abolish offices in its public service", "appoint" and "confirm appointments", "exercise disciplinary control over and remove persons holding those offices".

- All civil servants currently working in the districts all over Kenya will therefore be under the control of the county government except teachers.

- The current civil servants working in districts and provinces will therefore be absorbed in to the county civil service, re-deployed by the national government or sacked all together.

- A balance ought to be maintained between benefiting the residents of the county and our national unity, so that this structure does not perpetuate ethnicity and tribalism.

- Will it be at the expense of competence and professionalism?

(h)    What will happen to Provincial Commissioners District Commissioners, District officers, Chiefs and Sub Chiefs working within the Counties?

- Section 17 of the Sixth Schedule, the PCK, states that the Provincial Administration shall be "restructured".

- The word restructure is not foreign, it has been used in company practice and operations, etc It has however not been defined in the PCK.

- Therefore, taking into account how it has been used in this context, what it could mean is that, all PCs, DCs, Chief and Sub-Chiefs will be absorbed by the County Government and given different names/titles, re-deployed by the National Government or sacked for redundancy.

- Given that counties are generally smaller than provinces, one does not see how the provincial commissioner (PC) can fit into the county structure. Will there be districts and divisions? This is not clear.

11.    CHAPTER SIXTEEN- AMENDMENT OF THIS CONSTITUTION

(a)    Article 256 and 257; Amendment

- It is not true that one can easily amend the PCK once it is passed.

- One million registered voters needed to sign the proposal for amendment.

- Independent Electoral Commission must be satisfied that the signatures are authentic before forwarding the proposed amendment to the all the Counties.

- Counties to discuss and pass the amendment within 3 months. It must pass in at least half of the counties. County members have to be lobbied. Political will may also be lacking.

- If approved by more than ½ of the counties it is forward to both the houses of parliament. MP’s have to be lobbied. Political will may also be lacking.

- If approved by majority of parliament, it goes ahead for assent.

- If it touches on the protected areas, e.g. supremacy of the constitution, bill of rights etc, it must go back to a referendum which will cost billions.

- At the referendum it must be passed by at least 20% of the voters in a majority of the counties.

- There is also the cost element. To amend anything in the protected areas, e.g. Bill of Rights, one would have to go for a referendum. It is believed that the Bomas Talks cost the Country almost 6 Billion, the 2005 Referendum also cost about 6 Billion, the 2008 General Elections, cost almost 7 Billion while the current Referendum cost is approximately 6 Billion. Ultimately, the amendment of these provisions would be subject to the availability of funds.

- If amendment is to be done by Parliament, a 2/3 majority would be needed and if it is a protected issue, it still has to be subjected to a Referendum.

- All this while, the abortion, injustice, etc, will persist.

12.    TRANSITIONAL AND CONSEQUENTIAL PROVISIONS

Frequently Asked Questions and Issues of Concern

(a)    What will happen to the Grand Coalition Government under the proposed constitution?

- The PCK has scrapped the position of the Prime Minister.

- However, for transition purposes, Section 12 of the Sixth Schedule provides that the two principals "shall continue to serve as President and Prime Minister respectively" in accordance with the current constitution and the National Accord and Reconciliation Act, 2008, until the first general election under the proposed constitution.

- Section 6 of the National Accord states three conditions, each of which can result in the dissolution of the Grand Coalition Government. These are: dissolution of the 10th Parliament, agreement of the both PNU and ODM in writing or withdrawal by either PNU or ODM from the coalition.

(b)    Can general elections be held under the Proposed Constitution prior to 2012? What would be some of the implications?

- Yes. Under the current constitution, the dissolution of the coalition does not result in the holding of fresh elections.

- However, the PCK does envisage this, as it states categorically in section 9(2) of the Sixth Schedule that "if the coalition established under the National Accord is dissolved, "general elections are held before 2012

- Once the proposed constitution is enacted, if a party withdraws from the coalition, it would most probably precipitate the holding of early elections

- Since that will be the first general elections describes under section 9(1) of the Sixth Schedule, the President, the members of the National Assembly and the Senators elected shall hold office for five years as provided for under Article 142 concerning the president and Article 102 concerning the Members of the National Assembly and the Senators.

- However, in case the Grand Coalition is dissolved, under section 9, of the Sixth Schedule, the elections of governors and members of the county legislative assembly shall be held in 2012.

- THIS CREATES INSTABILITY AS THE WHIMS OF A COALITION PARTNER WOULD LEAD TO AN ELECTION!

 

13.    CONCLUSION

- There has been a lot of struggle to get a new Constitution, and Kenyans have indeed waited for a long time so as to be able to acquire one. We are making a Constitution not only for the immediate but also for the future.

- Though there have been several gains made in this second attempt, the PCK, has errors and misgivings as mentioned above which would not be easily amended as has been suggested and which would cause loss of lives for the unborn, moral degradation and acceptance of socially unacceptable practices, undermining of the sovereignty of the people, additional taxation without foreseeable commensurate gains and systems that would perpetuate injustice and unfairness.

- It is not true that we cannot have another constitutional moment. Kenyans wanted a good constitution not just a new constitution. Misguided approval of this Constitution would be wasting an opportunity after 40 years.

- The preferred option would have been to amend the Review Act so as to postpone the Referendum so as to allow these misgivings currently in the PCK to be deliberated upon and corrected. OR to go to amend the Review Act so as to allow Kenyans to vote at the referendum on issues.

- However, given that those options have been turned down by the leaders, Kenyans are advised to VOTE NO.

- This will give us Kenyans time to correct the aforementioned misgivings, rather than bind ourselves and our children and our children’s children, to a Constitution that will perpetuate killing of children and other forms of injustice, knowing very well that amending the relevant provisions would be very difficult.

FREQUENTLY ASKED QUESTIONS