National Council of Churches of Kenya

The 1^st Memorandum of the

National Council of Churches of Kenya

presented to the

Members of the Kenya National Assembly

pursuant to the

Constitution of Kenya Review Act 2008

Preamble

Following the deliberations of the Extra Ordinary Session of the Executive Committee of the National Council of Churches held from 1 – 3 March 2010 at Jumuia Conference and Country Home Limuru, we are pleased to make the following recommendations for consideration by the National Assembly as they debate the Proposed New Constitution tabled in the House on 2 March 2010:

CHAPTER ONE – SOVEREIGNTY OF THE PEOPLE AND THE SUPREMACY OF THE CONSTITUTION

Article 3(5) and (6) provides that all general rules of international law shall form part of the law of Kenya and the treaties and Conventions which are ratified by Kenya shall form part of the laws of Kenya. Considering that the Executive signs and ratifies Treaties and Conventions without reference to Parliament, we propose that Art 3(5) and (6) be deleted. All Treaties and Conventions must be domesticated through Acts of Parliament.

Art 8 provides that: “There shall be no state religion”. However, previous draft constitutions had two important principles namely: that state and religion shall be separate and that the state shall treat all religions equally. These provisions were deleted mischievously to accommodate parochial and sectarian interests in the draft constitution. We propose that Art 8 is amended to read as follows:

8 (1) State and religion shall be separate.

(2) There shall be no State religion.

(3)The State shall treat all religions equally.

CHAPTER FOUR – THE BILL OF RIGHTS

Art 24(4) provides that the provisions of the Bill of Rights shall not apply to persons who profess the Muslim religion. This is unacceptable. No person should be denied or exempted from the provisions of the Bill of Rights whatsoever. We propose that Art 24(4) is deleted.

Art 25 provides for fundamental rights and freedoms that may not be limited. However, we are saddened that the right to life, which is the most important right in our view, can be limited. How can a person enjoy the other rights if his or her life is taken away? Kenyans value life. Therefore, the draft constitution should recognize and protect the sanctity of life. We propose that a new Art 25(e) is inserted to read as follows:

“(e) the right to life”.

Article 26 (4) provides that abortion is permitted if in the opinion of a health professional (1) there is need for emergency treatment, (2) the life or health of the mother is in danger, (3) if permitted by any other written law. This is unacceptable. We propose that Art 26(4) is deleted entirely.

Art 32 provides for the right to religion and opinion. Art 32 has omitted the right to propagate ones religion and the right to convert from one religion to another. We propose that a new Art 32(5) is inserted to read as follows:

“(5) Everyone has a right to propagate their religion or convert from one religion to another”.

Art 45(4)(a) provides for the right to marry and found a family under any personal law system. This opens the door for recognition of homosexual unions. We propose that a new Art 45(5) is inserted to read as follows:

“Art 45(5) same sex unions are prohibited”.

Art 49(5) provides for the right to access to any institution or facility without any discrimination on the basis of ones religion. We take great exception to these provisions particularly with regard to institutions and facilities established for the purpose of propagating a religion or faith. We propose that a new clause (6) is inserted immediately after clause (5) to read as follows:

(6) Clause (5) shall not apply to institutions and facilities that are established solely or partly for religious purposes.

Art 51 provides for the rights of persons detained, held in custody, or imprisoned. However, the provision is hollow and a sham since it pegs the same rights to on an Act of Parliament. The Government of Kenya has a track record of torturing and subjecting detainees, remandees and prisoners to inhuman treatment. We propose that specific rights of persons detained, held in custody, or imprisoned are recognized in the constitution.

Art 156 provides for the office of the Attorney General. However it does not provide for the term of office. We propose that a new clause (8) be inserted to fix the term of the Attorney General to 8 years non-renewable so as to read as follows:

“(8) The Attorney General shall hold office for a term of eight years and shall not be eligible for re-appointment”.

Art 169(b) provides that subordinate courts include Kadhis courts. This is unacceptable. If the Proposed New Constitution shall contain any reference to Kadhis Courts, we shall REJECT the draft in total. To avoid another rejection of the draft constitution at the referendum, we propose that Art 169(b) be deleted and the words “religious courts” be inserted. This will ensure that any religion that desire to establish religious courts – such the Kadhis Court – have a provision in the constitution to rely on. Providing for Kadhis courts alone in a multi-religious society is a recipe for chaos, unfair, repugnant to justice and elevates one religion over all the faiths in Kenya.

Art 170 provides for the jurisdiction of the Kadhis Court. We propose that Art 170 is deleted. The jurisdiction of the Kadhis Court is already adequately provided for under the Kadhis Court Act Chapter 11 of the Laws of Kenya which will be consistent with Art 169 of the draft constitution.

Section 31 of the Sixth Schedule provides that the functions of the Director of Public Prosecution shall be performed by the Attorney General until the DPP is appointed. This is unacceptable. We propose that section 31 of the Sixth Schedule is deleted and a new one inserted to the effect that the current Director of Public Prosecution continues in office until a new one is appointed under the new constitution to read as follows:

“31(5) The functions of the Director of Public Prosecutions shall be performed by the current Director of Public Prosecution until another one is appointed under this Constitution”.

NCCK will be very pleased if these changes are effected on the draft constitution currently being debated in Parliament. Consequently, NCCK and the Christian community will gladly endorse the draft constitution. However, if Parliament – like the Committee of Experts and the Parliamentary Committee – ignore or trivialise these fundamental concerns, Christians shall have no other option than to reject the Draft Constitution at the referendum.

Signed on this 3rd day of March 2010 at Jumuia Conference and Country Home Limuru.

Rev Dr Charles Kibicho
Chairman

Rev Canon Peter Karanja
General Secretary