LEGAL OPINION TO THE Parliamentary Select Committee AND COMMENTARY ON THE LAST PHASE OF THE REVIEW PROCESS FROM THE Constitution of Kenya Review Commission
Parliamentary Select Committee Chairman and Co-Author of Kilifi Draft, Mr.Simeon Nyachae
July 2005
Summary of Issues
1.Develop an objective criteria for building a national consensus;
2.Develop an objective criteria for making any possible changes to the Draft Constitution of Kenya (2004);
3.Analyse the Naivasha Accord vis-a-vis the above criteria.PreambleThe Commission underscores and recognises the need to undertake national consensus on the new Constitution. This has been necessitated by the imperative of establishing a constitutional dispensation that is acceptable to the majority of Kenyans. Towards this end, the Constitution of Kenya Review Act (Cap 3A) has been amended to provide a framework for consensus building.
PART ONE: LEGAL FRAMEWORK FOR CONSENSUS BUILDINGThe Constitution of Kenya Review (Amendment) Act 2004 places a responsibility on the National Assembly and the Parliamentary Select Committee (PSC) on the Review of the Constitution to spearhead the consensus building efforts.
(i)Identification of C
ontentious IssuesIn spearheading these consensus-building efforts and identifying contentious issues, the National Assembly will be required to undertake the following:
Receive and consider the Report of the Commission and the Draft Constitution as adopted by the National Constitutional Conference on 15th March 2004.
The PSC will identify and recommend to the National Assembly contentious issues in the Draft Constitution on which consensus is necessary.
The National Assembly, upon deliberation, will approve the list of contentious issues in the Draft Constitution.
Following the identification and approval of the list of contentious issues, subsequent consensus building efforts will be confined to the approved list of contentious issues. This shuts the door on other issues falling outside the list of approved contentious issues. This was designed to immunise the review process from perpetual limbo of contention.
(ii)Building Consensus on the Approved List of Contentious IssuesThe Constitution of Kenya Review Act, as amended, provides that in considering the Report and Draft Bill, the National Assembly may undertake consultations to promote, initiate and facilitate a national consensus on the list of contentious issues as approved by the National Assembly.
Although this section uses the term may, this section read together with section 5 of the Constitution of Kenya Review Act obligates the National Assembly to undertake consultations to build a national consensus. Section 5 provides that the organs of the review shall
be accountable to the people of Kenya;
ensure that the review process accommodates the diversity of the Kenyan people;
ensure that the review process -
provides the people of Kenya with an opportunity to actively, freely and meaningfully participate in generating and debating proposals to alter the Constitution;
is conducted in an open manner; and
is guided by respect for the universal principles of human rights, gender equity and democracy; and
ensure that the final outcome of the review process faithfully reflects the wishes of the people of Kenya.
This section does not only obligate the National Assembly as one of the organs of the review to consult, but also defines the parameters, manner and quality of such consultations. This interpretation is based on the principle that the amendment could not have been intended to override the guiding principles of the review which are mandatory.
(iii)Processing the Contentious IssuesThe law requires the PSC to conduct wide consultations and make recommendations on the contentious issues to the National Assembly.
The National Assembly is required to debate and adopt with or without amendment(s) the recommendations of the PSC.
(iv) Transmission of the Recommendations of the National Assembly to the AGThe National Assembly is required to transmit the Report of the Commission and the Draft Constitution and its recommendations on the contentious issues to the Attorney General.
Within thirty days, the Attorney General is required to incorporate the recommendations of the National Assembly into the Draft Constitution and publish the same as the proposed new Constitution.
(iv)Approval of the Proposed new Constitution by the PeopleThe amended law under s. 27(3) requires the Electoral Commission to conduct a referendum to give the people of Kenya the opportunity to ratify the proposed new Constitution within 90 days after the AG publishes the proposed new Constitution.
On the whole, this legal framework together with the requirements on the holding of the referendum, raises legal concerns which were referred to in the statement of the Chairperson in our joint meeting with the PSC on Friday the 17th day of June 2005. The statement read in part that:
The Commission would like to seek an opportunity to discuss legal concerns with you so that the two bodies could brainstorm on the possible strategies for protecting the process from any challenge.
We look forward to the opportunity to raise these concerns before it is too late.
PART TWO: IMPERATIVES IN THE CONSIDERATION OF ANY CHANGES IN THE DRAFT CONSTITUTIONIn considering any possible changes to the Draft Constitution, it is important to recognise and maintain a healthy relationship between the theoretical framework of values and the architectural design option chosen as infrastructure for the actualisation of those values. Often, a choice of a wrong architectural design option ends up rendering impossible the actualisation of the desired values and may end up reducing those values to mere platitudes. This may also result in a document that has internal inconsistencies and contradictions.
In particular, therefore, the consensus building efforts must respect and take cognisance of the following imperatives:
The Principles guiding the review process as enumerated in sections 3, 5, 17 and the relevant Schedules of the Constitution of Kenya Review Act;
Sections 3 and 17 in particular enumerate the governance values that must inform the new Constitution.
The Philosophy, architecture, and design of the Draft Constitution of Kenya as adopted by the National Constitutional Conference (Bomas); and
The necessity of respecting the basic structure and internal integrity of the Draft Constitution.
In our considered view, disregard of these parameters will not attain a national consensus acceptable to the majority of Kenyans and may lead to further acrimony and division of the country into factions, thus making it impossible to arrive at a legitimate outcome in the referendum, particularly taking into consideration the fact that up to the end of the National Constitutional Conference, the review process had cumulatively built a measure of consensus among the people. The Sulumeti I and II are testament to these efforts. The Sulumeti II, in particular, should be instructive in narrowing down what is in contention in the Draft Constitution. Given this background, it would be necessary to avoid reopening matters in which consensus had been attained at the National Constitutional Conference.
In an effort to build a national consensus, two significant steps have been taken since Bomas:
a)Political leaders representing parliamentary parties as represented in the Select Committee on the Review of the Constitution met in Naivasha in November 2004 and produced proposals to reach a national consensus. This has been documented in a report commonly referred to as the Naivasha Accord. The Commission was represented by five Commissioners, but only as observers.
b)The National Assembly has approved a list of Chapters in the Draft Constitution where contentious issues are to be found.
PART THREE: ANALYSIS OF THE NAIVASHA ACCORD ON THE BASIS OF THE THREE IMPERATIVES
The Naivasha Accord identified several issues as contentious and made proposals on how to resolve them as discussed below:
Chapter 4: Citizenshipa)The Naivasha Accord recommends that the provision on dual citizenship should allow for citizens of Kenya by birth. This recommendation is in agreement with the spirit of deliberations at the National Constitutional Conference.
b)The Naivasha Accord proposes under article 17(1) to delete the words “is entitled on application” and substitute therefor the words “is entitled to apply.”
Background to this provision
The current Constitution of Kenya under section 91 provides:
A woman who has been married to a citizen of Kenya is entitled, upon making application in such manner as may be prescribed by or under an Act of Parliament, to be registered as a citizen of Kenya.
Views of Kenyans
Kenyans felt that this provision discriminates against women and recommended that the right be expanded to include women in order to remove this discrimination. The Commission accepted this recommendation. The Report and Draft Bill (2002) provided in this regard, in article 20 (1), that:
A person who has been married to a citizen of Kenya for a period of not less than three years is entitled, on application, to be registered as a citizen of Kenya.
During deliberations at the National Constitutional Conference, objections to the expansion of this right to cover women were raised on the ground that this provision may be open to abuse. It was argued that non-citizen men would take advantage of Kenyan women in order to gain the right to be registered as Kenyan citizens. Upon reflection and negotiations, the Conference resolved that in order to remove the potential of abuse for both men and women, the three years waiting period be extended to seven years.
This provision was, therefore, never identified as a contentious issue in the Sulumeti II Report.
It is notable that the formulation is entitled upon making application, was never contentious in section 91 of the current Constitution of Kenya when the right was only enjoyed by men.
Recommendation: Since the underlying principle of the article is to eliminate sex based discrimination, we take the view that the proposed formulation in article 17(1) should be retained. As such the Naivasha accord proposal should be abandoned.Chapter 6: Bill of Rights
The Naivasha Accord recommends limitations on some specific rights, namely the right to life (article 34), freedom of the media (article 50) and access to information (article 51). These recommendations proceed from the assumption that the Draft Constitution does not provide limitations to these rights and that they are absolute. This assumption is false because all the rights in the Bill of Rights are subject to limitations as provided for by article 33 of the Bill of Rights.
The Background to the limitation mechanism
The Bill of Rights in the current Constitution has been described as a Bill of Derogations because it grants rights with one hand and takes them away with the other. Comparative constitutional studies informed the Commission that the approach to the limitation of rights is based on an outdated model used in Europe in the 18th century. The European countries that have made and/or reviewed their constitutions since the mid 20th century, have departed from this archaic approach and have adopted a progressive approach which provides rights in separate articles and a single general limitation clause to be observed by any person or institution seeking to limit these rights. This approach began with the German Basic Law of 1949; was picked up by the Canadian Charter of Rights and Freedoms of 1982 and recently, in Africa, by both the Interim Constitution of South Africa of 1993 and the Final Constitution of the Republic of South Africa of 1996. The main difference between the two approaches is that whereas the old approach emphasizes the limitation of rights, the new approach emphasises the enjoyment of rights but recognises that rights are not absolute but are subject to limitations. This approach grants the power to limit rights but recognises that the power to limit rights is itself not unlimited. This approach therefore emphasizes the limitation of the power and the curtailment of arbitrariness. The burden of proof, therefore, shifts to the person or institution seeking to limit that right.
As such, to subject certain rights to specific limitations is to subject them to double limitation. Such double limitation would be in contravention of the objects of the review and the international human rights norms and standards.
Recommendation: The Naivasha Accord’s recommendations under this Chapter are not necessary and as such we propose the retention of the articles therein as formulated. Notably, these recommendations were not contentious issues in Sulumeti II.
Chapter 10: Representation of the People
The Naivasha Accord affirmed the Chapter on Representation in its entirety as not contentious.
Recommendation: We appreciate and support the recommendation of the Naivasha Accord that this Chapter should remain as it is in the Draft Constitution. Its inclusion in the new list of contentious issues by the National Assembly is therefore misplaced and erroneous.Chapter 11: The Legislature
The Naivasha Accord recommends the scrapping of the Senate in the Draft Constitution. In place thereof, it recommends the establishment of a forum for the leaders of the Counties to meet and deliberate on issues affecting the Counties. The Accord further recommends a process of impeachment of the President by the National Assembly by a two-thirds majority of all members of the National Assembly.
These recommendations proceeded from the assumption that the only functions of the Senate would be the impeachment of the President and the provision of a forum for the leaders of the devolved governments to deliberate on the issues affecting their devolved governments.
In our considered opinion, the Senate is an indispensable and integral part of the basic structure of the Draft Constitution and its removal will undermine the internal integrity, philosophy, architecture and design of the document, thereby fundamentally altering the character and infrastructure designed to actualise the values of good governance in the new constitutional framework.
(i)The Role of the Senate in Devolution
The Draft Constitution has settled for a devolved system of government with government at the national and devolved levels. In this system of government, the legislative function at the national level is intended to be a shared function between the national level and the devolved levels of government. First and foremost, the Senate lies at the very heart of the definition of devolution. One of the main defining features of a devolved system of government is that the governments created at different levels are coordinate and not subordinate to each other. They are coordinate because each one of them derives its authority and legitimacy directly from the Constitution and not from another level of government. None is a mere agent of any of the other levels.
To maintain this constitutional theory and value of being coordinate, the architecture and design demand that the power to alter the instrument from which each derives its authority (the constitution) is shared and not arbitrarily and unilaterally exercised by a single level of government. If this power were not to be shared, the system would have been converted from being coordinate to being subordinate, and, therefore, no longer devolution. This is because the level of government that would have the unilateral power to alter the Constitution would be able through such alterations to abolish the other levels of government. Therefore, the design of a proper system of devolution requires the sharing of this power. In sharing these powers, the Constitution must provide the institutions through which the different levels of government will share these powers, hence the concept of a bicameral legislature.
In choosing a devolved system of government, Kenyans, informed by the current discretionary system of sharing resources, wanted to establish a system with minimised discretion and increased consultation and negotiation. Therefore, the devolved governments are given an opportunity to share in the passing of Money Bills, most importantly the division of revenue Bill. It is the Senate that provides the institution through which the devolved governments share this function. Without the Senate, therefore, we will revert back to the current system of political patronage in the sharing of resources by the centre.
(ii)Electoral Reform and Representation
The Commission received many proposals from the Kenyan people on how to reform the electoral and representation system. Broadly, these views may be classified into two categories: those who proposed the alteration of the first-past-the-post (majoritarian) system because of its inherent unfairness and those who made presentations on the relationship of representation and population on the one hand and representation and region/community of interest on the other. The solution for curing these competing interests was based on two philosophies: one was to balance between the competing interests of those who come from populous communities living in geographically small areas and those who come from less populous communities living in vast areas. The solution to this problem in the Bomas Draft Constitution is to have National Assembly constituencies based on weighted population and a Senate with equal representation based on regions. The Senate takes into account some measure of equality regardless of population and size. The design of the US and South African bicameral legislatures have adopted this principle of equality of States/Provinces in representation in the Senate.
(iii)Public Participation in the legislative process
The Draft Constitution has adopted a philosophy of public participation in governance. This has been done through different structures and processes. The bicameral legislature has been designed to ensure that the people participate in the legislative process directly and indirectly. The Senate would provide a second level for public participation in lawmaking. This is a fundamental right of the people to exercise their sovereignty. Indeed, this is key to the objects and principles guiding the constitutional review process, and its entrenchment would set the stage for a constitutional framework in which the people are primary to the governance process.
(iv)Expanding Representation
In presenting their views to the Commission, the people of Kenya demanded that there should be diversity of representation in the legislature. The Draft Constitution has provided for representation of different groups to this effect in the Senate. The theory of the Senate also seeks to remove the dynamics of party politics in the legislative process, by requiring that election /nomination to the Senate is non-partisan and not based on political parties. This would bring on board some members of Parliament not affiliated to any political party.
(v)Expanded Capacity of law making
It is envisaged that upon the coming into force of the new Constitution, a number of consequential legislations should be enacted to facilitate the realisation of the provisions of the Constitution. It is also envisaged that the legislative agenda under the new constitutional framework will be wider than under the current Constitution. A two chamber parliament provides for lawmaking simultaneously.
(vi) Expanded oversight responsibilities of Parliament
The design of the Draft Constitution has provided for oversight over the governance process by the people through their representatives, namely Parliament. In checking these powers, Parliament’s oversight role has been expanded in the Draft Constitution. The Legislature’s ability to perform this role effectively depends on the design of this institution. The establishment of a bicameral Parliament enhances the ability of Parliament’s oversight by establishing two levels of checks. For instance, the vetting of executive appointments will be subjected to effective checks by requiring that the each of the two chambers is not arbitrary. It is obvious that the amount of vetting by lawmakers expected in the new Constitution cannot be practically and effectively undertaken by one chamber.
(vii) The Impeachment Process
We also hold the view that it is impossible to have an impeachment process with integrity through one chamber of Parliament. The impeachment process is essentially a political and not a judicial process. Comparative constitutional studies show that there are two main reasons why it is political rather than judicial. First, its exclusion from the judicial domain immunises the judiciary from being embroiled in political fights and differences among elected leaders. It is now developed theory that the removal of a popularly elected leader must be undertaken by leaders similarly elected by popular mandate. This is based on the fact that there is real possibility of a sitting President opting to appeal to his popular mandate, which may be only countered by the Legislature which can also appeal to its electorate. The Judiciary cannot and should not step into this political arena and appeal to the electorate.
Second, in granting the impeachment power to the Legislature, the rules of natural justice must be observed. The fundamental tenets of this principle require that one cannot be a judge in his/her own cause, and that one cannot be prosecutor, jury, judge as well as executor in the same case. It is for this reason that in the USA experience, the Chief Justice sits in and chairs the impeachment proceedings in the Senate for purposes of ensuring that the rules of natural justice are observed. This has informed the approach followed in the Draft Constitution. In a presidential system of government, which by necessity, must have an impeachment process, a two-chamber legislature becomes necessary. One chamber is given the role of framing and initiating the charges, while the other chamber tries the charges.
Further, it is also important to note that a momentous political action of removing a sitting President would enjoy further legitimacy by requiring that a qualified majority be attained in two chambers. It is notable that the Naivasha Accord adopts a presidential system, with no clear separation between the Executive and the Legislature. If adopted, this arrangement would undermine the effectiveness and integrity of the impeachment process, should it be initiated, owing to the fact that members of the Executive sit in the National Assembly, and would naturally align themselves with the executive on the question of impeachment.
Additionally, the Senate would
Provide the infrastructure for the actualisation of the values and principles under the Chapters National Goals, Values and Principles, the Republic, Culture and the protection and realisation of human rights in the new constitutional dispensation.
Strengthen the legislative process and rationalise the process of lawmaking.
Enhance the gestation period of lawmaking.
Expand the range, number and quality of legislation.
Provide an avenue for the process of constitutional amendment.
Prevent the potential excesses of a unicameral Parliament.
Provide a principal arena in the devolution and exercise of power.
Enhance separation of powers of the organs of the state.
Safeguard the management of constitutionality.
Recommendation: For all these reasons, and taking into account that the Chapter on the legislature and in particular the Senate was not a contentious issue in Sulumeti I and II, we recommend that the Senate should be retained as an integral part of the basic structure. We note the arguments that have been advanced against the Senate, namely costs, and the complex procedures which may be involved. Considering the benefits of the Senate as discussed above, these arguments are without merit.Chapter 12: The Executive
The construction of executive power is informed by constitutional theory on systems of government namely the
Presidential;
Parliamentary; and
hybrid (semi-presidential and semi parliamentary) systems.
In a presidential system, the chief executive is both the head of state and head of government, and there is a clear and distinct separation between the legislature and the executive. Under this arrangement, members of the executive are not drawn from the legislature. In a parliamentary system, the head of state and the head of government are separate, with the former playing a ceremonial role, such as the Westminster model. In this system of government, the executive is drawn from the legislature.
The hybrid system of government has two variants: the semi-presidential systems and the semi-parliamentary systems. The semi-presidential tilts executive power towards the President such as the French Constitution whereas the semi-parliamentary system tilts executive power towards the Premier as in the German Constitution. In each of these systems, there are checks and balances designed to suit it and these checks cannot be substituted for the other. The historical context in Kenya is instructional in that the Constitution was changed after independence from a parliamentary to a presidential system, without instituting checks suitable for a presidential system. The upshot wais that the current Constitution has neither the parliamentary checks nor the presidential checks leading to what has been referred to as an “imperial presidency.”
In reconciling the competing views of the people of Kenya, the Draft Constitution has adopted a mixed system of government that takes into account the advantages of all the different systems of government. The Naivasha Accord departs from this approach and proposes a presidential system but does not adopt the relevant and requisite checks and balances. Although reference has been made to the Tanzanian model in the Naivasha Accord by commentators, it has not been pointed out that the Tanzanian model is a purely presidential system, with no checks and balances. Besides, the Tanzanian model, like the current Kenyan imperial presidency evolved from a dictatorial single-party system.
Recommendation: If the Naivasha Accord presidential model is adopted, it must be accompanied by its classical and requisite checks and balances. Prominent among these checks is the requirement for a clear and distinct separation of powers between the executive and the legislature. The members of the cabinet will by necessity have to be appointed from outside Parliament.Chapter 13: The Judicial and Legal System
The Naivasha Accord recommends that the limitation under article 33(5) be deleted. It further proposes that the words “and submit to the Court’s jurisdiction” be inserted at the end of article 199 of the Draft Constitution.
If the proposals by the Naivasha Accord were effected, Kadhis courts would not only become inoperable, but the accrued rights of Muslims in relation to personal law would have been taken away. The Kadhis courts as formulated in the Draft Constitution (2004) are a result of painstaking negotiations at the National Constitutional Conference between the Christians and Muslims. It was also agreed that the Kadhis courts as an institution are an infrastructure for the actualisation of Muslim women’s rights and part of the gains of women.
Recommendation: The articles should be retained as currently formulated in the Draft Constitution.Chapter 14: Devolution
The Naivasha Accord proposes that ‘there should be two levels of devolution- the National and County’ and further that the ‘roles assigned to the Regions, the Districts and the Locations in the Draft Bill be brought together to be the roles of the Counties.’
It further recommends that criteria for determining the size and the number of the Counties be developed. At a subsequent meeting of 30th November 2004, it was recommended that the existing 74 districts shall be Counties; and that the Counties may be increased to no more than 100.
In asking for devolution, the Kenyan people demanded a system that would give them an opportunity for participation and self-governance and efficient and proximate delivery of services. They accepted and sought the principle of unity in diversity. In doing this, Kenyans were informed by their experience of the current centralised system of government that is very expensive but delivers no services to them. Against the background of the current system is characterised by a weak local government system with strong central controls, Kenyans demanded a complete overhaul. They demanded devolution and not delegation or deconcentration.
It must be noted that the Draft Constitution of Kenya is a compromise because it provides a “middle ground” between the proponents of unitarism and federalism. It provides for regional governments, with coordinative powers, and the district government as the principal level of devolution.
The Naivasha accord in relation to devolution is therefore a drastic enterprise. The design does not adhere to the principles and objects of devolution. It departs from the views of the people. It violates the principles of devolution such as subsidiarity, public participation and self-governance. It establishes two levels (actually one level, the county) and does not clarify whether the county is a devolved or local government. It creates between 74 and 100 units of government, which is conducive to recentralisation. Indeed, the arrangement is not in any significant way better than the present system. It must also be noted that it is atypical for countries to have such high number of principal levels of devolution. The US is the closest with such a number of levels (54 States). But the US is a vast country, with a population ten times Kenya’s population.
At the heart of the demand for devolution is the need for a system with fair sharing of resources and finances and even development of all regions of the country. The proposed system in the Naivasha Accord will fundamentally impact on the design and principles of the Draft Constitution in respect of a consultative and negotiative system of resource and finance sharing between the governments. As already noted, the architecture and design of the Draft Constitution seeks to minimise discretion and maximise consultation and negotiation in this area. It also seeks to ensure equity and equalisation in the allocation of resources. For purposes of the protection of the devolved levels of government, the design emphasizes the participation of the devolved levels of government in this process. It is for this reason that the devolved levels of government are given two constitutional forums through which to participate in this process, namely the Senate and the Commission on Revenue Allocation. The Commission on Revenue Allocation is designed in such a manner as to give the devolved levels of government higher representation than the national level of government. It has twenty-one Commissioners, out of whom sixteen represent the interests of devolved governments. Each one of the fourteen regions nominates one, and the association of district governments nominates two.
The Naivasha Accord’s proposal to scrap the regional level of government will obviously necessitate the reconstitution of this Commission. This reconstitution will destabilise the balance of interests that had been intended to be in favour of the devolved governments. If the concept of one Commissioner representing each Region is transferred to the 74 or more counties, the end result will be a mammoth Commission. On the other hand, if the route of increasing the representation of counties (since the districts are proposed to be counties) to 16 is taken, the intended balance of interests in favour of the devolved governments will be reversed.
This approach would be susceptible to divide and rule by the centre. When taken together with the Naivasha Accord proposal to scrap the Senate, this proposal is designed to defeat the purposes, object and principle of devolution, taking us back to the discretionary and arbitrary current system of resource allocation.
The proposal to scrap the regional government creates a huge distance between the county level of government and the national government. On the other hand, the scrapping of the locational government also alienates the people from the governance process, yet the people of Kenya had made proposals for governance closer to them.
Recommendation: For all these reasons, the Naivasha Accord proposals will in our considered view fundamentally alter the nature, character, principles and the very definition of devolution in the Draft Constitution. Further, the removal of devolution would alter the basic structure of the Draft Constitution.Chapter 19: Constitutional Commissions
The Naivasha Accord proposes the scrapping of a number of Commissions in the Draft Constitution and the establishment of the following Commissions in the Constitution:
(a)Public Service Commission;
(b)Parliamentary Service Commission;
(c)Electoral and Boundaries Commission;
(d)Judicial Service Commission and
(e)Commission on Revenue Allocation.It proposes that some of the Commissions established in the Draft Constitution should be established by or under legislation. In our considered opinion, the Naivasha approach disregards the underlying philosophy in the design of constitutional commissions and constitutional offices in the Draft Constitution. The commissions and constitutional offices created in the Draft Constitution are part of the institutional framework for the implementation of the Draft Constitution. The institutional design of the Draft has expanded the traditional form that creates separation of powers and checks and balances between the legislature, the executive and the judiciary. Informed by the views of the people, our history and constitutional developments in the world over, the design of the Draft Constitution expands these roles of implementation of the Constitution and management of constitutionality to include constitutional commissions and offices.
The approach is that constitutional values and principles are accompanied by constitutional institutional framework that act as infrastructure for implementation of those values. For example, the chapters on the constitutive process of the state have two main institutional frameworks for implementation, namely the National Culture Commission and the Commission on Human Rights and Administrative Justice. By the same token, the Chapter on Leadership and Integrity has the Ethics and Integrity Commission as the institutional framework for implementation. This approach of establishing constitutional commissions as infrastructure for implementation has been adopted throughout the Draft Constitution. Their entrenchment in the Constitution gives them a constitutional basis for the management of constitutionality.
The powers of the legislature, like other organs, have been limited in the Draft Constitution. The Draft Constitution makes the people the repository of sovereignty, and limits the powers of the legislature. The Naivasha Accord proceeds from a different approach by construing parliamentary power as emanating from the supremacy of Parliament instead of the supremacy of the Constitution, and that sovereignty resides in Parliament instead of the people. As such, the proposal that some of these commissions be established by statute is untenable. The intention of the people of Kenya was to create constitutionally protected commissions as opposed to statutory commissions which can be abolished any time hence undermining the management of constitutionality.
Recommendation: Tampering with the institutional design and architecture will strip the Draft Constitution of its effectiveness, infrastructure and ability to manage constitutionality and implement the new Constitution.Other Matters
The Naivasha Accord alleges that the Draft Constitution is voluminous and as such should be edited, and some of its provisions reduced to legislation. It must be appreciated that the size of the Draft Constitution was neither an accident nor an oversight. It was a deliberate move on account of the needs and fears of the people. Every Constitution is written to respond to the specific felt needs and history of the people and there is no standard size of a Constitution. For instance, the American Constitution, which has been repeatedly cited as very short was written over 250 years ago when the competing interests were still rudimentary and did not include the stakes of the African-Americans, women, indigenous peoples and minorities. Further, it is to be noted that each of the American States has its own Constitution, independent of the Federal Constitution. The Indian Constitution written in 1947 had to respond to the many claims of the time and has 395 articles. Other examples include New Zealand with 284articles, Nigeria with 318 articles and Columbia with 380 articles. The Draft Constitution, having take into consideration our history and the felt needs of the people, has only 311 articles. The Draft Constitution of Zambia, has not only heavily borrowed from the Draft Constitution of Kenya, but has also responded to the needs of its people by adopting 378 articles.
Conclusion:
We have set out objective criteria, which should guide possible changes to the Draft Constitution. If these criteria are followed, the end result will remain faithful to the views of the people of Kenya. In our considered opinion, the proposals in the Naivasha Accord fall short of these criteria.
