Constitution of Kenya

Kenya

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The 2010 Constitution of Kenya was drawn up to replace the first constitution of Kenya. The constitution was presented to the Attorney General of Kenya on April 7, 2010, officially published on May 6, 2010, and was subjected to a referendum on August 4, 2010.^[1] The new Constitution was approved by 67% of Kenyan voters.^[2] The constitution was promulgated on 27th August 2010.

Contents 1 History 2 Government Structure 3 The Executive 4 The Legislature 5 The Judiciary 6 Devolution 7 Dual Citizenship 8 Disagreements over reform 9 International reaction 10 See also 11 References 12 External links

[edit] History

The Constitution of Kenya was the final document resulting from the revision of the Harmonized draft constitution of Kenya written by the Committee of Experts initially released to the public on November 17, 2009 so that the public could debate the document and then parliament could decide whether to subject it to a referendum in June 2010. The public was given 30 days to scrutinize the draft and forward proposals and amendments to their respective Members of Parliament, after which a revised draft was presented to the Parliamentary Committee on January 8, 2010. The Parliamentary Select Committee (PSC) revised the draft and returned the draft to the Committee of Experts who published a Proposed Constitution on February 23, 2010 that was presented to Parliament for final amendments if necessary. After failing to incorporate over 150 amendments to the proposed constitution, parliament unanimously approved the proposed constitution on April 1, 2010. The proposed constitution was presented to the Attorney General of Kenya on April 7, 2010, officially published on May 6, 2010, and was subjected to a referendum on August 4, 2010.^[1] The new Constitution was approved by 67% of Kenyan voters.^[2]

[edit] Government Structure

The key changes proposed by the new constitution released are in the following areas:

• The Executive - who holds executive authority and the qualifications.^[3]
• The Legislature - the composition, and representation of the people. An introduction of an upper house - the Senate.^[4]
• The Judiciary - qualifications to hold office and appointment.^[5]
• Devolution to the regions and counties.^[6]
• Dual citizenship - citizens who acquire foreign citizenship will not lose their Kenyan citizenship.^[7]

[edit] The Executive

The executive at the top most levels will be constituted of a President of the republic and the Cabinet.

Key functions of the President

• Shall be the Head of State & Head of Government of the Republic of Kenya.
• Shall not be a Member of Parliament
• Commander-in-Chief - and will declare war and state emergency upon approval by the National Assembly and Cabinet respectively.
• Head of Government - will yield executive authority and will co-ordinate and supervise all major sections of the executive branch.
• Shall nominate, appoint with prior approval of the national assembly, and dismiss Cabinet Secretaries.
• Preside over Cabinet meetings.
• Shall assent bills into law or refer them back to parliament for further review.
• Shall appoint Judges to the Superior Court recommended to him/her by an independent Judiciary Service Commission.
• Shall appoint Ambassadors/High Commissioners to Kenyan embassies abroad.

[edit] The Legislature

The Legislative branch will constitute of the following

An upper house - the Senate

• Each of the 47 counties will have a Senator
• A senator will be elected by the voters.
• Tentative total number of Senators will be 60.

A lower house - the National Assembly

• Each constituency (# of constituency to be determined by Independent Boundary Review Commission) - currently there are 210.
• Majority of the Members of National Assembly will be directly elected by voters
• Each county assembly will elect a woman MP - therefore guaranteeing a minimum of 47 women MPs in the National Assembly.
• Tentative total number of MPs will be 290.

County Assemblies and Executive

• The country will be divided to approximately 47 counties - the counties are comparable to the current districts.
• Each county will have a County Executive headed by a county governor elected directly by the people and;
• A county assembly elected with representatives from wards within the county.

[edit] The Judiciary

There will be 3 superior courts:

• Supreme Court - highest judiciary organ comprising 5 judges with one acting as the Chief Justice. This court will handle appeals from the Appeals and Constitutional courts. It will also preside over Presidential impeachment proceedings.
• Court of Appeals - will handle appeal cases from the High Court and as prescribed by Parliament. It will constitute not less than 12 judges and will be headed by a President appointed by the Chief Justice.
• Constitutional Court - shall take up cases pertaining to interpretations of the constitution. It will constitute not less than 5 judges lead by a Principal Judge appointed by the Chief Justice.

An Independent Judiciary Service Commission will be setup to handle the appointment of Judges. They will nominate names of persons to be appointed as Judges by the President. The commission will consist of the following:

• A Supreme Court judge - elected by members of the Supreme Court to chair the commission
• Court of Appeal judge - elected by members of the Court of Appeals to chair the commission
• The Attorney-General
• Two advocates, one a woman and one a man, each of whom has at least fifteen years' experience, nominated by the statutory body responsible for the professional regulation of advocates
• One person nominated by the Public Service Commission.

Attorney-General

• Shall be appointed by the President - with approval from the National Assembly
• Hold office for only one term of not more than 6 years.

[edit] Devolution

Devolution to the county governments will only be in implementation of centrally planned projects, budgets, and distributed resources but will not allow regions to act autonomously similar to a federal system.

[edit] Dual Citizenship

• A person who is a citizen does not lose citizenship by reason only of acquiring the citizenship of another country.
• A person who as a result of acquiring the citizenship of another country ceased to be a Kenyan citizen is entitled, on application, to regain Kenyan citizenship.

[edit] Disagreements over reform

After the draft of the constitution was released the type of government which would be implemented with the constitution was a debate amongst the various government coalitions.^[8][9] The two major political parties,the Party of National Unity (PNU) and the Orange Democratic Movement (ODM) disagreed on many points.^[8] the greatest discrepancy in opinion is over the nature of the executive branch of the government.^[8] The economic interest represented by the Kenya Private Sector Alliance (KEPSA), openly opposed the new style of government.^[8] Eventually the contentious issue of the position of Prime Minister was removed. The remaining contentious issues are mainly between the positions on abortion, Kadhi courts and land reform.

Mainstream Christian leaders in Kenya object to the constitution

1. - The Proposed Constitution of Kenya in Sec 26(4) reiterates and reaffirms the current Kenyan penal code by stating: Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law. However, the church insists that the weak drafting of the clause, especially the last two parts, could allow for the same clause to be used to enact laws or justify procurement of on-demand abortion.^[10]
2. - The Proposed Constitution of Kenya in Sec 24(4) exempts a section of society that profess Islam as their religion from broad sections of the Bill of Rights that relate with Personal Status, Marriage, Divorce and Inheritance.
3. - The Proposed Constitution of Kenya in Sec 170 Provides for the Establishment of Kadhi Courts.
4. - The Proposed Constitution of Kenya in Sec 170 (2)a Discriminates against all other sectors of society by limiting the Kadhi’s Job opportunity only to persons that Profess the Muslim Religion. The church leaders also insist that for the clarity of the separation of religion and state doctrine and equality of religion, the Kadhi courts should not be in the constitution.

A three Judge Bench of the High Court has since in a landmark ruling of a case filed six year ago, declared the inclusion of the Kadhi's court illegal and against the principles of non-discrimination, separation of religion and state and constitutionalism.^[11] A section of the Muslim leadership has vowed to retaliate the ruling by seeking their own judicial declaration that the teaching of Christian religious Education in public school curriculum is illegal.^[12] The education curriculum includes religious education syllabus for both Christianity and Islam.

[edit] International reaction

Generally the international community praised the approach that the Kenyans are taking to constitutional reform, seeing it as a viable way to keep corruption in check.^[13] United States Secretary of State Hillary Clinton said that "I am pleased that they have taken this step, which represents a major milestone."^[13] Other United States diplomats also commented on the unity and meaningful intent which Kenyans were presenting in approaching the reform.^[13] Non-profits concerned with civil society and other reforms also praised the approach.^[13] For example, the Africa director for the International Foundation for Electoral Systems said that "The fact that they are bringing in stakeholders to lend their voice and make recommendations will strengthen civil society because they will keep a close eye on the process and, if it is passed, will ensure that it is respected and properly implemented."^[13]

[edit] See also

• Former Constitution of Kenya (1963)
• Constitutional Reforms in Kenya
• Kenyan constitutional referendum, 2005
• Kenyan constitutional referendum, 2010

[edit] References

[edit] External links

• The Proposed Constitution of Kenya, published 6th May, 2010
• Online interactive Proposed Constitution mobile-friendly website