IMG 1721NCCK General Secretary Rev. Canon Peter Karanja is flanked by the Executive Committee Meeting during a press conference held at Jumuia Conference and Country Home, Limuru                                                       

                                                          GIVE KENYA A NON DIVISIVE REFERENDUM
PRESS STATEMENT

Isaiah 10: 1 - 3
Woe to those who make unjust laws, to those who issue oppressive decrees, to deprive the poor of their rights and withhold justice from the oppressed of my people, making widows their prey and robbing the fatherless. What will you do on the day of reckoning, when disaster comes from afar? To whom will you run for help? Where will you leave your riches?

A. Preamble
The Executive Committee of the National Council of Churches of Kenya has met here at Jumuia Conference and Country Home, Limuru, for the last two days to transact statutory business and reflect on matters of national concern. We recognize that the character and destiny of a nation depend on the laws that bind together the citizens. It is therefore of great importance that the laws of a nation be godly, just and promote peace. With this understanding, we wish to share the following message with all Kenyans.

B. Principles to Guide Constitution Amendment Process
This Executive Committee has noted that after wide ranging discussions, different sectors of the Kenyan nation are generally agreed that there is need for the Constitution of Kenya 2010 to be amended in some sections.
We now urge that as a nation, we embrace key principles to guide further debate on the amendment of the Constitution. These principles include the following:
(i) The amendments should be people-focused and be aimed at enhancing justice, national cohesion, accountability and national prosperity
(ii) The amendments should produce better government, not more government, by advancing inclusion and sharing of power and addressing the disillusionment occasioned by the winner-takes-all framework
(iii) Every effort must be made to ensure that the referendum is non-divisive. Towards this, there is need for adequate consensus building among all Kenyans on the referendum questions.
(iv) A National Constitutional and Reforms Conference should be held to discuss the different proposals from stakeholders and build consensus.
(v) The referendum should not be a political process since politics always leave people divided. This behoves all Kenyans to actively engage the process, and we urge our fellow religious leaders to provide active leadership in this regard.
(vi) Adequate civic education should be undertaken by independent bodies to ensure that all Kenyans understand the referendum questions.
(vii) The amendments should be considered in a context of prayer so that God guides all the stakeholders, just as we learn from Proverbs 8: 15 – “By me kings reign and rulers make laws that are just”.
This Executive Committee appreciates the plans by the Dialogue Reference Group led by religious leaders to convene County Dialogue Conferences which will among other things discuss necessary constitutional and legislative reforms. The Council is committed to participating in the County Dialogue Conferences.

C. Constitution Amendment Bill
Kenyans will recall that during the Constitution Review Process of 2009 / 2010, the Council and other faith leaders raised fundamental questions they wanted addressed before the referendum. This was not done. In addition to the issues raised then, we have monitored the implementation of the Constitution of Kenya 2010 over the last 9 years and noted areas that require adjustment so as to enhance justice and governance in the country.
This Executive Committee has consolidated these recommendations, and now wishes to present the following Draft Constitution Amendment Bill for consideration by Kenyans.

(1) Article 2 of the Constitution is amended by inserting the words “only after domestication by Parliament” at the end of Clause (6) thereof.
Rationale: This is to protect sovereignty by ensuring that international laws are not applicable to Kenya without evaluation and ratification by Parliament to ensure that Kenyans are protected from socially unacceptable practices.

(2) Article 8 is deleted and substituted thereof with the following new clause – “State and Religion shall be separate”
Rationale: This is to concretize the separation between state and religion and to ensure that state does not interfere with religion.

(3) Article 10 is amended by inserting the following new clauses immediately after Clause 10 (2) (d) -
10 A (1) There is established a National Ethics, Cohesion and Civic Education Commission.
10 A (2) A person is not eligible for appointment as a member of the Commission if that person –
(a) Does not satisfy the requirements of Chapter 6 of the Constitution;
(b) Has been known to engage in activities that undermine cohesion.
10 A (3) The Functions of the Commission are –
(a) To promote cohesion and integration amongst Kenyan Communities;
(b) To promote a culture of patriotism and national unity;
(c) To enhance democracy and civic education for effective participation of citizens in democratic and development processes at both national and local levels;
(d) To promote the protection and observance of human dignity, equity, social justice, inclusiveness and equality;
(e) To promote good governance, integrity and transparency;
(f) To monitor, investigate and report on any violations in respect to their functions;
(g) To receive and investigate complaints touching on their functions;
(h) To document and share data with the public, other state organs and institutions in respect to any investigations, monitoring or research carried out in furtherance of their functions.
10 A (4) Parliament shall enact legislation to establish the Commission which shall be and have the status and powers of a Commission under Chapter Fifteen of this Constitution, for purposes of ensuring compliance with and enforcement of the provisions of Article 10.
Rationale: The NCCK is proposing that the National Cohesion and Integration Commission is transformed into the National Ethics, Cohesion and Civic Education Commission. This is to domicile the implementation of national ethics as well as civic education. The Commission is also integrated into the Constitution, noting that currently the National Cohesion and Integration Commission is established only through an Act of Parliament.

(4) Article 24 is amended by deleting Clause (4) thereof.
Rationale: The Bill of Rights was intended to be applicable to all Kenyans (Article 20 (1)), and therefore the limitation on women, children and vulnerable members of the Muslim community should be removed as it exposes them to unequal treatment.

(5) Article 26 is amended by:
a. Deleting the words “or other written law” appearing in Clause (3) immediately after the word “Constitution”
b. Deleting Clause (4) and substituting the contents thereof with the words “Abortion is not permitted unless, in the opinion of a trained health professional, the life of the mother is in danger”.
Rationale: This is to ensure that Kenyans, born and unborn, are protected from unconstitutional deprivation of the right to life.

(6) Article 59 is amended by:
a. Deleting the words “Kenya National Human Rights and Equality Commission” appearing in Clause (1) and substituting them therefor with the words “Public Defender”
b. Inserting a new clause immediately after Clause (2) (k) –
(2) (l) To prosecute any person or entity suspected to be in violation of any of its functions;
(2) (m) To investigate improper acts with respect to public money, improper or unlawful enrichment of a person performing a public function.
c. Deleting Clauses 4 and 5 thereof
Rationale: This amendment will convert the Commission into a Defender of Kenyans complete with prosecutorial powers. This will ensure that maladministration and illegal practices by persons holding office can be investigated and prosecuted.

(7) Article 67 is amended by:
a. Deleting the words “National Land Commission” appearing in Clauses (1), (2) and (3) and substituting the therefor with the words “National Land and Transitional Justice Commission”
b. Inserting new clauses immediately after Clause (2) (h) as follows –
(2) (i) To investigate historical injustices, identify those responsible and impose sanctions where possible;
(2) (j) To provide reparations to victims of historical injustices and prevent future abuses;
(2) (k) To foster individual, community and national reconciliation;
(2) (l) To appropriate property belonging to any individual or entity determined to have committed an injustice as compensation or in reparation.
Rationale: This amendment will provide a Constitutional Commission that will address the historical injustices that have bedevilled our nation, and provide restorative justice and reparations so as to bring that past to a closure.

(8) Article 79 is deleted and substituted therefor with the following –
79 (1) There is established a Serious Economic and Financial Crimes Commission.
79 (2) A person is not eligible for appointment as a member of the Commission if that person –
(a) Does not satisfy the requirements of Chapter 6 of the Constitution;
(b) Has been known to engage in activities that undermine anti-corruption initiatives.
79 (3) The Functions and powers of the Commission are –
(a) To integrate anti-corruption activities in all sectors;
(b) To investigate improper acts with respect to public money, and improper or unlawful enrichment of a person performing a public function;
(c) To nationalize or appropriate any property, funds or proceeds whether in Kenya or abroad, that have been looted and or obtained through fraud or corrupt means, even while charges are pending in court;
(d) To summon any person or entity to enhance investigations;
(e) To promote good governance, integrity and transparency;
(f) To monitor, investigate and report on corruption;
(g) To receive and investigate complaints touching on their functions;
(h) To document and share data with the public, other state organs and institutions in respect to any investigations, monitoring or research carried out in furtherance of their functions.
79 (4) Parliament shall enact legislation to establish the Commission which shall be and have the status and powers of a Commission under Chapter Fifteen of this Constitution, for purposes of ensuring compliance with and enforcement of the provisions of Article 79.
79 (5) Anyone charged with an offence in relation to corruption shall if in state employment immediately be put on suspension and shall in any other case not be eligible for appointment to a state position or any elective position during the pendency of the case.
79 (6) Anyone convicted of an offence in relation to corruption shall if in state employment immediately be dismissed and shall in any other case not be eligible for appointment to a state position or any elective position for a period of five years after serving the sentence imposed.
Rationale: This will replace the Ethics and Anti Corruption Commission with a body that focuses only on serious economic and financial crimes, enabling it to be more effective.

(9) Article 88 is amended by:
a. Inserting in Clause (3) the words “and shall serve one term of six years” immediately after the words “public office”
b. Deleting Clause (4) and substituting the contents thereof with the clause “the regulation and supervision of the process by which parties elect candidates for elections;”
c. Deleting Clause (4) (e)
Rationale: These amendments will clarify the term of office of Commissioners, and also remove the responsibility of settling electoral disputes from the Commission.

(10) Article 89 is amended by deleting the words “two hundred and ninety” appearing in Clause (1) and substituting them therefor with the words “one hundred and fifty”.
Rationale: The intention of this amendment is to reduce the size of the National Assembly which will lessen the cost of representation.

(11) Article 90 is amended by:
a. Inserting in Clause (1) the word “(e)” immediately after the words “97 (1) (c)”, and the word “(f)” just after the words “98 (1) (b), (c), and (d)”
b. Deleting the word “nominates” in Clause (2) (a) and substituting it therefor with the word “elects”.
Rationale: This is to ensure that those who take up the special seats have a popular mandate.

(12) Article 97 is amended by:
a. Deleting the words “two hundred and ninety” appearing in Clause (1) and substituting them therefor with the words “one hundred and fifty”.
b. Deleting Article 97 (1) (c)
c. Inserting the following new clauses:
97 (1) (e) The number of special seat members necessary to ensure that no more than two-thirds of the membership of the Assembly are of the same gender and to represent special interests including youth and persons living with disabilities.
97 (1) (f) The Presidential Election runner-up, not being an Independent Candidate, shall occupy the position of Official Leader of the Opposition in the National Assembly.
97 (3) The members contemplated in clause (1) (e) shall be elected by political parties in proportion to the seats received in that election by each political party under clauses (1) (a) and (b).
97(4) The filling of special seats under clause (1) (e) shall be determined after a declaration of elected members from each constituency.
Rationale: These amendments will rationalize the membership of the National Assembly by reducing the numbers from **** to **** and assuring the representation of women and special interest groups.

(13) Article 98 is amended by inserting the following new clauses:
98 (1) (f) the number of special seat members necessary to ensure that no more than two-thirds of the membership of the Senate are of the same gender and to represent special interests including youth and persons living with disabilities.
98 (1) (g) The running mate to the runner-up in the Presidential Election, not being an Independent Candidate, shall occupy the position of Official Leader of the Opposition in the Senate.
98 (4) The members contemplated in clause (1) (e) shall be elected by political parties in proportion to the seats received in that election by each political party under clause (1) (f).
98 (5) The filling of special seats under clause (1) (f) shall be determined after a declaration of elected members from each constituency.
Rationale: This amendment will rationalize the membership in Senate and ensure representation of women and special interest groups.

(14) Article 99 is amended by deleting Clause 3 thereof.
Rationale: This is to remove the leeway that individuals who are being prosecuted for crimes use to still get elected or appointed to public positions.

(15) Article 101 is amended by deleting the words “August in” appearing in Clause (1) and substituting them therefor with the words “December after”.
Rationale: This is to ensure that elected bodies serve their full term of five years

(16) Article 108 is amended by:
a. Deleting the words “leader of minority party” appearing in Clauses (1) (3) and (4) (c) and substituting them therefor with the words “Leader of Official Opposition”.
b. Inserting a new clause (5) as follows:
108 (5) Parliament shall enact an Act providing for the setting up and financing of the office of the Leader of Official Opposition.
Rationale: This is to change and clarify the role of the runners up in the Presidential Election

(17) Article 130 is amended by:
a. Inserting the words “Prime Minister, and two Deputy Prime Ministers” immediately after the words “Deputy President”.
b. Inserting a new clause (3) as follows:
130 (3) The President, Deputy President, Prime Minister and Deputy Prime Ministers shall all be from different ethnic groups.
Rationale: This is to introduce the Prime Minister and Deputy Prime Ministers as members of the national Executive, and enshrine greater inclusivity in its structure.

(18) Article 131 (1) (b) is amended by inserting the words “Prime Minister and Deputy Prime Ministers” immediately after the words “Deputy President”.
Rationale: This is to define that the Prime Minister and Deputy Prime Ministers will exercise executive authority.

(19) Article 136 is amended by deleting the words “August in” appearing in Clause (2) (a) and substituting them therefor with the words “December after”.
Rationale: This is to ensure that elected bodies serve their full term of five years

(20) Article 150 is amended by:
a. Inserting the words “Prime Minister and Deputy Prime Ministers” immediately after the words “Deputy President” in Clause (1).
b. Inserting a new clause (3) as follows:
150 (3) Except that in the case of Prime Minister and Deputy Prime Ministers, the President can in consultation with the political party or coalition of parties as the case may be, remove them.
Rationale: This amendment is to include the Prime Minister and Deputy Prime Ministers in the provisions on removal of the Deputy President.

(21) Article 152 is amended by:
a. Deleting the words “Attorney General” appearing in Clause (1) (c) and substituting them therefor with the words “Prime Minister”
b. Deleting the words “not fewer than fourteen and not more than twenty-one Cabinet Secretaries” appearing in Clause (1) (d) and substituting them with the words “two Deputy Prime Ministers”.
c. Inserting new clauses as follows:
(1) (e) the Attorney General;
(1) (f) not fewer than fourteen and not more than twenty-one Cabinet Secretaries.
d. Inserting in Clause (2) the words “Prime Minister, two Deputy Prime Ministers and” immediately after the word “appoint”.
e. Inserting in Clause (3) the words “Prime Minister, two Deputy Prime Ministers and” immediately before the words “Cabinet Secretary”.
f. Inserting in Clause (4) the words “Prime Minister, two Deputy Prime Ministers and” immediately before the words “Cabinet Secretary”.
g. Inserting a new clause as follows:
152 (4) (A) A person is not qualified to be appointed a Prime Minister, Deputy Prime Minister or Cabinet Secretary if that person -
(a) does not satisfy the requirements of Chapter 6 of the Constitution;
(b) is not a holder of a Degree from a recognized University;
(c) has been convicted, charged with or is under investigation for corruption.
Rationale: These amendments rationalize the membership of the Cabinet to include the Prime Minister and Deputy Prime Ministers

(22) Article 153 is amended by:
a. Inserting in Clause (2) the words “Prime Minister, Deputy Prime Ministers and” immediately before the words “Cabinet Secretaries”.
b. Inserting in Clause (2) the words “and Parliament” immediately after the word “President”.
Rationale: This is to make the Prime Minister, Deputy Prime Ministers and Cabinet Secretaries accountable to both the President and Parliament

(23) Article 169 is amended by deleting Clause (1) (b) and substituting it with a new clause - 169 (1) (b) Religious Courts
Rationale: This is to provide equality of all religions by ensuring that each can establish their own courts through Acts of Parliament

(24) Article 171 is amended by inserting the following new clauses:

171 A (1) For every financial year, the equitable share of the revenue raised nationally that is allocated to the Judiciary shall be not less than two per cent of all revenue collected by the national government.
171 A (2) The amount referred to in Clause (1) shall be calculated on the basis of the most recent audited accounts of revenue received, as approved by the National Assembly.
Rationale: This is to promote independence of the Judiciary by ensuring it is adequately funded.

(25) Article 177 is amended by deleting the words “August in” appearing in Clause (1) (a) and substituting them therefor with the words “December after”.
Rationale: This is to ensure that County Assemblies serve their full term.

(26) Article 180 is amended by:
a. Deleting the words “August in” appearing in Clause (1) and substituting them therefor with the words “December after”.
b. Inserting a new clause as follows:
180 (9) For the purposes of Clause 180 (7) (b) a person who has assumed the office of Deputy Governor shall be deemed to have served a full term, subject only to Article 182 A (2) (a).
Rationale: This is to ensure that Governors and Deputy Governors serve their full term

(27) Article 182 is amended by inserting new clauses as follows:

182 A (1) Within fourteen days after a vacancy in the office of Deputy Governor arises, the Governor shall nominate a person to fill the vacancy, and the County Assembly shall vote on the nomination within sixty days after receiving it.
182 A (2) If a person assumes office as Deputy Governor under Clause (1) then for the purposes of Article 180 (7) the person shall be deemed -
i. To have served a full term as Deputy Governor if, at the date on which the person assumed office, more than two and a half years remain before the date of the next regularly scheduled election under Article 180 (1), or
ii. Not to have served a full term of office as Deputy Governor in any other case.
Rationale: This amendment is to provide for the process of filling a vacancy in the office of Deputy Governor.

(28) Article 203 is amended by deleting the words “fifteen” appearing before the word “per” in Clause 2 and substituting it therefor with the word “forty – seven”.
Rationale: This amendment is to increase the allocation of funds to counties from a minimum of 15 to a minimum of 47 per cent of national income.

(29) Article 215 is amended by deleting the words “Commission for Revenue Allocation” in Clause (1) and replacing them therefor with the words “Salaries and Revenue Allocation Commission”.
Rationale: The NCCK is proposing to transform the Commission for Revenue Allocation to Salaries and Revenue Allocation Commission.

(30) Article 216 is amended by:
a. Deleting the words “Commission for Revenue Allocation” appearing in Clause (1) and substituting them therefor with the words “Salaries and Revenue Allocation Commission”.
b. Inserting new clauses as follows:
216 (2) (B) The Commission shall also:
(a) set and regularly review the remuneration and benefits of all State Officers; and
(b) advise the national and county governments on the remuneration and benefits of all public officers.
216 (3) (B) The Commission in performing its functions shall take the following principles into account:
(a) the need to ensure that the total public compensation bill is fiscally sustainable;
(b) the need to ensure that the public service is able to attract and retain the skills required to execute their functions;
(c) the need to recognize productivity and performance;
(d) transparency and fairness.
Rationale: This amendment is to provide for the duties and principles of the Salaries and Revenue Allocation Commission.

(31) Article 217 is amended by deleting the words “Commission on” appearing in Clause (2) (b) just before the word “Revenue” and substituting them with the words “Salaries and”.
Rationale: The amendment clarifies the commission referred to is Salaries and Revenue Allocation Commission.

(32) Article 230 is deleted.
Rationale: This amendment removes the Salaries and Remuneration Commission, whose mandate is transferred to the Salaries and Revenue Allocation Commission.

(33) Article 248 is amended by:
a. Deleting Clause (2) (a) and substituting the contents therefor with the words “The Public Defender”
b. Inserting in Clause (2) (b) the words “and Transitional Justice” immediately after the word “Land”.
c. Deleting the words “Commission on” appearing in Clause (2) (h) just before the word “Revenue” and substituting them therefor with the words “Salaries and”.
d. Deleting Clause (2) (h) and substituting the contents thereof with the clause “National Ethics and Civic Education Commission”.
e. Inserting new clauses as follows:
248 (4) The Commissions and Independent Offices shall -
(a) Be independent and subject only to the Constitution and the Law;
(b) Be impartial and exercise their powers and perform their functions without fear, favour or prejudice.
248 (5) Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.
248 (6) No person or organ of state may interfere with the functioning of these institutions.
248 (7) These institutions are accountable to the National Assembly and must report on their activities and the performance of their functions to the Assembly at least once a year.
Rationale: These amendments are to confirm the names of the Commissions, and to affirm their independence.

D. Upcoming National Processes
In addition to the debate regarding amendment of the Constitution, this Executive Committee has noted with concern the overt and covert efforts by political leaders and other actors to manipulate the National Census to be conducted in August this year. This is a worrying trend as it points to intentions to negate justice in the allocation of resources and electoral boundaries in future.
We urge all Kenyans to respect the National Census and not make any attempts to inflate or deflate the emerging statistics from any area, and call upon the Directorate of Criminal Investigations to charge any person who attempts to do such things with subversion against the state.

E. Conclusion
We conclude by calling upon all Kenyans to hear the word of God recorded in Psalms 82: 2 – 4:
“How long will you defend the unjust and show partiality to the wicked? Defend the cause of the weak and fatherless; maintain the rights of the poor and oppressed. Rescue the weak and needy; deliver them from the hand of the wicked.”
Let us all participate in the national and local level dialogue forums being presided over by the Dialogue Reference Group, the Building Bridges Initiative, and any other groups so that we enhance justice and rightness in our Constitution and governance processes.
May God bless us with a non-divisive and redemptive constitution amendment process.

Signed on this 27th day of February 2019 at Jumuia Conference and Country Home, Limuru.

Archbishop Timothy Ndambuki
Chairperson

Rev Canon Peter Karanja
General Secretary