Leta Siasa

Wednesday, August 17, 2005

A Prelminary Analysis of The Kilfi Draft

(This document has been prepared by some Kenya-based Kenyans, including SOME, but not all of the Constitutional Review of Kenya Commissioners in July 2005)


Chapter One: Sovereignty of the People and Supremacy of the Constitution

Article 1 on sovereignty of the people has been fundamentally altered to limit the exercise of the sovereignty of the people. The Draft Constitution of Kenya 2004 (The Bomas Draft) had envisaged the exercise of the sovereignty of the people at the national and devolved levels of government. References to devolved government have been removed and replaced with district government. The concept of devolution has therefore been alienated and abandoned from the word go in the PSC Recommendations/Kilifi Draft. This departs from the objects and values of the Review Act, the views and aspirations of the people and the principles and philosophy of the Draft Constitution of Kenya 2004 (The Bomas Draft). This Chapter was neither contentious nor do the issues fall in the Chapters listed by PSC as containing contentious issues. The Kilifi Draft proposals to amend the Chapter are not supported by the recommendations by the PSC or the proceedings in the National Assembly.

Chapter Two: The Republic

Article 5 of the Draft Constitution of Kenya 2004 (The Bomas Draft) on Territory, which establishes the units of devolution and entrenches them in the Constitution has been fundamentally altered by the removal of the first schedule, which defines and entrenches the regions, districts and boroughs in the Constitution. The power to establish internal boundaries and devolved units of Kenya has now been removed from the people, exercising their sovereignty through the constitution and vested in Parliament through legislation. The shift of sovereignty from the people alters the basic design of devolution as it goes to the very foundation of its definition. Indeed, the concept of devolution ceases to exist in the PSC Recommendations/Kilifi Draft. Whereas article 5 of the Draft Constitution of Kenya 2004 (The Bomas Draft) had defined the number and boundaries of districts and regions, the PSC Recommendations/Kilifi Draft have bestowed this responsibility on Parliament. The grant of this power to Parliament to define and establish another level of government creates a subordinate relationship as opposed to a coordinate relationship between the levels of government.

Article 6 of the Draft Constitution of Kenya 2004 (The Bomas Draft) has been altered by removing the locational and regional levels of government, fundamentally affecting the exercise of the sovereignty of the people. The recommended arrangement not only creates a huge distance between the national and district levels of governments, but by the removal o the locational level of government also takes the government far away from the people, alienating them from the government and governance. Accordingly, the recommended arrangement fundamentally negates the principles of devolution such as efficient and proximate services, public participation and democratic self-government. Although article 6(2) on the principles of distinct, interdependent, consultative, negotiative and cooperative government has been left intact, there are no arrangements and structures for their realisation because the idea of devolution has been abolished and institutional arrangements such as the Senate have been scrapped. The upshot of the recommendations would be to move away from the envisaged consultative and negotiative system of government in the Draft Constitution of Kenya 2004 (The Bomas Draft) to a discretionary controlled system with the national level of government calling the shots. The article remains an empty lofty declaration. These amendments are proposed on the premise that they are consequential matters on devolution. Yet fact is that these articles are principle setting provisions in the chapter on the Republic and as such the PSC had no mandate to effect changes to them as they were not identified as a contentious issue.

The Draft Constitution of Kenya (Bomas Draft) establishes Nairobi as the capital city of Kenya based on the views of the people. The determination of the capital was envisaged as a constitutive function, which should be performed by the people through the constitution and not Parliament. The conferment of the power to Parliament as in the PSC Recommendations/Kilifi Draft negates the sovereignty of the people and runs counter the views and aspirations of the people.

The Hansard record shows that this proposal was rejected by the ruling of the Speaker of the National Assembly on grounds that the PSC exceeded it mandate and that the matter was not consequential. The changes in this chapter are fundamental and not consequential to those in any other chapter. These recommendations depart from the objects and values of the Review Act, the views and aspirations of the people and the principles and philosophy of the Draft Constitution of Kenya 2004 (The Bomas Draft). The Attorney General should ignore these proposals because the Chapter was neither contentious nor was it listed by the National Assembly as contentious.

Chapter Four: Citizenship

Article 17 on citizenship and marriage has been altered by deleting the words “is entitled on application” and substituting therefor the words “is entitled to apply.” Under s. 91 of the current Constitution of Kenya

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.

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 and its 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 [sic!] 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 s. 91 of the current Constitution of Kenya when the right was only enjoyed by men. Since the underlying principle of the article is to eliminate sex-based discrimination, the proposed formulation in article 17(1) by the PSC Recommendations/ Kilifi Draft is untenable and should be abandoned.

The above arguments apply to the other formulations by the PSC Recommendations/Draft in the Chapter in respect of articles 16, 18 and 20 of the PSC (Kilifi). It must also...

Chapter Five: Culture

Article 26 of the Draft Constitution (2004) (Bomas Draft) on the National Commission on Culture has deleted in its entirety. Whereas the Chapter has laid down basic principles on culture, there is no institutional infrastructure for their realisation. The Commission as envisaged by the Draft Constitution (2004) (Bomas Draft) would actualise or operationalise the provisions of the chapter. The anchoring of the Commission in the Constitution gives it the status to protect the cultural values provided in the Chapter. Besides, the implementation of property, heritage and cultural rights in the Constitution would be rendered nugatory if the Commission has no constitutional status. Additionally, the clause that enjoined Parliament to enact consequential legislation to give effect to the provisions of the chapter has also been deleted thus doing away with the implementation framework. Note that this provision on facilitative legislation would be necessary even if the Commission were to be found unnecessary. Although the National Assembly purported to delete the article, it had no mandate to do so.

Chapter Six: Bill of Rights

The PSC Recommendations have placed 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.

Additionally, there are more limitations that have been added to specific rights such as freedom of the media (article 50). 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 and 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 review and international human rights norms and standards.

Article 34 has been altered fundamentally by arrogating to Parliament the power to grant life and take away life. Yet the theory of human rights and the philosophy of the Bill of Rights in the Draft Constitution (2004) (Bomas Draft) posit that human rights are inherent, indivisible, inalienable and interdependent. Human rights therefore are entitlements by every human person, and are not granted by any external force or power. Parliament cannot therefore purport to have the power to grant or limit the right. By the same token, Parliament cannot purport to “permit” abortion in the circumstances it deems fit by legislation. Moreover, this takes us back to the old approach to the limitation of rights.

On article 36 on affirmative action, the PSC Recommendations bestow on Parliament the power to review affirmative action, which may include abolishing, affirmative action programmes. The theory of the Draft Constitution is that affirmative action is an all time value to be used for adjusting imbalances in society. The recommendations of the PSC are an affront to this theory.

The PSC has also fundamentally inserted a new article designed to undermine the justiciability of socio-economic rights by providing that the basic rights shall not be construed as imposing obligations on the state. In essence, the article seeks to limit the judiciary in its role of progressively interpreting the Bill of Rights, and in particular socio-economic rights. It must be appreciated that the realisation of socio-economic rights and basic rights was at the core of the views and aspirations of the people of Kenya. It must also be appreciated that this matter was not a contentious issue. See article 60 of the PSC/ Kilifi Draft.

Article 71 has also been deleted yet it cannot be understood why a person should issue or obey unlawful instructions. The right should be left the way it is.

Article 74 has introduced three new clauses one of which has made provision for Parliament to legislate on how the courts of law should exercise jurisdiction in cases of contempt. This will undermine the independence of the judiciary and the principle for separation of powers.

The proposals to delete article 75(2) of the Draft Constitution are designed to take away all the rights of persons in custody in the constitution. The removal of this article also confers on Parliament the discretion of determining what rights should be granted to persons in custody. It is to be acknowledged that the rights of a person held in custody are fundamental rights, and this was a major concern of the people during the collection of views. The deletion of the right as formulated in the Draft Constitution (2004) (Bomas Draft) has taken away the entire gamut of rights and freedoms that sought to be protected under the article.

Notably, these recommendations were not contentious issues at the National Constitutional Conference. With the exception of the right to life, the Chapter was never contentious.

Chapter Seven: Land and Property

The theory of government in the Draft Constitution of Kenya (Bomas Draft) is that the purpose of governance is the proper management and development of resources and equitable distribution thereof. As a primary resource, the management and development of land is crucial to the stability of society. It is to be recalled that the use and management of land was a primary concern of the people of Kenya during the collection of the views by the Commission. The people of Kenya considered that in order to address the current problems over the use, ownership, allocation and alienation of land, there should be constitutional provisions on the management and use of land. It was also considered that the state had failed to mange land resources effectively and fairly. It was therefore considered that the management of land should be vested in an independent institution, the National Land Commission. The deletion of the Commission from the Draft Constitution will therefore vest the management of land in Parliament and the Executive.

The Draft Constitution envisages that public land should be administered by the National Land Commission on behalf of the people. Without the National Land Commission there will be public land with no institution to manage and administer. See article 78 and 79 of the Draft Constitution of Kenya (2004). The argument that the Land Commission can be removed on the basis that it is consequential to devolution is erroneous. The National Land Commission was designed to implement the principles on the Chapter on Land. It must be noted that consequential amendments flow from the principle, and as such the ruling on the Chapter on the Environment should be followed in this Chapter. The Attorney General should therefore ignore the proposal to delete the National Land Commission.

Chapter Eight:Environment and Natural Resources

It was considered that the management of the environment should be vested in an independent institution, the National Environment Commission, anchored in the Constitution. The proposed deletion of the Commission from the Draft Constitution will therefore vest the management of the environment in Parliament and the Executive. It is important to note that the Speaker of the National Assembly ruled that this proposal exceeded the mandate of the PSC and rejected the proposal and ruled the retention of the Commission.

Chapter Nine: Leadership and Integrity

The republican theory of government demands that those who hold office do so for a limited period of time and during the pleasure of the people and during their good behaviour. During the National Constitutional Conference, it was argued that the recall mechanism earlier provided in the Draft Constitution (2002) had only targeted Members of Parliament and further that the mechanism was subject to abuse. It was agreed that public scrutiny, through the ethics and integrity infrastructure established in the Chapter on Leadership and Integrity be for all leaders. Architecturally, the Ethics and Integrity Commission would form the cornerstone for upholding ethical standards in the holders of public office.

The Draft Constitution envisages that the Ethics and Integrity Commission will ensure ethical standards in pubic office. The Commission would deal with constitutional offices, and as such it should have constitutional status. It must be emphasised that the Draft Constitution seeks to reorient leadership and governance, and part of the implementing infrastructure is the Ethics and Integrity Commission. The Commission would have several functions, including anticorruption and enforcing ethical codes. The proposed establishment of the Kenya Anti-Corruption Commission runs counter the philosophy of the Draft Constitution which sees anti-corruption as just one aspect of ethics and integrity. To ensure the independence of the Commission, it must be safeguarded in the Constitution. If left for legislation, it would be relegated to a weak institution that cannot enforce ethical standards in public office. The Attorney General should ignore these proposals because the Chapter was neither contentious nor was it listed by the National Assembly as contentious.

Chapter Ten: Representation of the People

The Chapter, which seeks to establish principles for representation of the people has been amended fundamentally by the PSC Recommendations/Draft. The Draft Constitution sought to balance political party interests and other special interests, and adopted mechanisms for ensuring that these interests are represented. Article 102 of the Draft Constitution sought to establish representation of all interests and regions through the Senate. The Draft sought to address the first-past-the-post (majoritarian) system because of its inherent unfairness by establishing 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 and its scrapping has further ramifications in the representation in Parliament. The proposals by the PSC shift representation to political parties, with no clear representation of regional and special interests e.g. workers, women. The idea of political parties as the basis of representation is also discriminatory as it does not give room for representation of independent candidates. It must also be noted that this Chapter was not listed as contentious by the National Assembly.

Chapter Eleven:The Legislature

On article 124 of the Draft Constitution (2004) (Bomas Draft) on the qualifications and disqualifications for election as a member of Parliament, the PSC recommends that persons who have been removed from office on grounds of misconduct should be eligible for election, yet the Bomas Draft had envisaged that to uphold the integrity of Parliament, such persons should not be qualified for election. On membership of the Parliament, the scrapping of the Senate has led to loss of representation of women and other groups that the Draft Constitution (2004) (Bomas Draft) had sought to secure their representation in the parliamentary process.

The PSC has also recommended the deletion of marginalized groups which the Draft Constitution had sought to enhance their protection. The upshot of this is to remove the guarantee of the participation of these groups in the parliamentary process and governance generally.

The Draft Constitution (2004) (Bomas Draft) had envisaged that lawmaking would undergo process of consideration by the two chambers of Parliament before approval. The two-chamber parliament would provide a negotiative and consultative law making process and the scrapping of the Senate and the deletion of the provisions of article 134 on consideration of legislation by both Houses will undermine the requirement for consultative lawmaking. At the same time, the deletion of the provisions on the decisions of the Senate will undermine the principles of geo-equality and unity in diversity. The essence of this article was to ensure checks and balances on decision-making. The deletion of these provisions will therefore render the principle of unity in diversity elusive. All other articles which had provisions on shared functions between the Senate and the NA have been deleted, undermining checks on Parliament.

The design of the Draft Constitution 2004 (Bomas Draft) 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. The sharing of this vetting function seeks to enhance consultation and negotiation in governance, because the composition of the Senate sought to ensure regional representation. The scrapping of the Senate transferring this functions to the National Assembly will undermine the consultations envisaged and the checks intended in a bicameral Parliament. The upshot is that the National Assembly will be all-powerful; in terms of vetting, and will undermine the capacity to vet appointments such as those of the members of the cabinet.

The PSC Recommendations fortify the Public Service Commission, yet it emasculates the other constitutional commissions. Article 147 has been amended to provide that the PSC shall not be under the direction of supervision of any person or authority.

The proposed changes on chapter ten and eleven leave the electoral system intact: the first past the post system. Yet the majority of those who gave their views sought the reform of this system. It must also be indicated that the Constitution of Kenya Review Act required the people of Kenya to review the electoral system.

Chapter Twelve: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 is 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 PSC Recommendations depart 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 regard to the recommendations by the PSC 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.

On the whole, the recommendations of the PSC deviate from the fundamental principles and the objects of the review. It also deviates from the sovereignty of the people, by seeking to vest sovereignty in the presidency, reinstalling a monarchy. Even though the PSC and political parties subscribed to the Naivasha Accord on the structure of the executive, the recommendations of the PSC do not conform to it.

Article 150(3) has been amended by deleting the provision that the national executive shall reflect the regional and ethnic diversity of the people of Kenya. It must be recalled that the people of Kenya had called for equity in the constitution of the national executive and the proposals in the PSC Recommendations run counter the views of the people of Kenya.

The PSC also recommends a monolithic executive, the President, in whom all executive authority resides. Whereas the Draft Constitution of Kenya (2004) (Bomas Draft) has delegated executive power to the President, Deputy President, Prime Minister and Ministers, the recommendations have concentrated executive power on one institution, the presidency. In addition, it must be noted that the Draft Constitution of Kenya (2004) (Bomas Draft) has sought to establish executive authority at different levels, at the national and devolved government. As such, under the proposed changes, the President will be the repository of ALL executive authority of the Republic, and any other institution exercising executive authority will do so as a delegate or agent of the President. It must be noted that article 1 distinguishes between the executive at the national and devolved levels. Under devolved government, it is envisaged that executive authority will repose in the devolved executive, yet this article vests all executive authority in the President. The recommendations have therefore increased the powers of the President, as the Head of Government and the Head of State, and the repository of all executive authority.

Although the recommendations of the PSC have created the office of the Prime Minister, the office is in essence superfluous as it is fundamentally different from the office of Prime Minister envisaged by article 172 of the Draft Constitution of Kenya (2004) (Bomas Draft). First, the office has not been vested with executive authority as this has been vested only in the President. Second, the office has been granted with no functions, but for the functions currently exercised by the Vice President, namely leader of government business.

The PSC recommends a presidential model with no requisite checks and balances. There is no clear and distinct separation of powers between the executive and the legislature as the Ministers will be appointed from the National Assembly, and some members from outside Parliament. Consequently, the proposed system will still exhibit a higher level of control over the Legislature by the presidency. It must be recalled that the people of Kenya had overwhelmingly supported the idea of a lean government, and had recommended that in addition to limiting the number of ministers, the new constitution should provide that cabinet ministers should be appointed from outside Parliament. The PSC Recommendations have not set the limit of the number of ministers.

On checks and balances, one of the mechanisms namely the impeachment process, has been remodelled by the PSC recommendations as a result of which the process is now an impotent one. The recommendations provide for a unilateral system of the parliamentary process for impeachment as opposed to the one envisaged by article 164 of the Draft Constitution of Kenya (2004) (Bomas Draft), which would be taken through the Senate and the National Assembly to ensure due process of law. Further, checks such as those on the appointment of the Prime Minister under article 173, the cabinet under article 177 and Principal Secretaries under article 181 of the Draft Constitution of Kenya (2004) (Bomas Draft) that envisaged consultation in the appointment (and dismissal) of the holders of these offices have also been removed by the PSC Recommendations.

Finally, the PSC Recommendations also seek to establish the offices of the Attorney General, Director of Public Prosecutions and the Public Defender under the Chapter on the Executive.

On the whole, it must be emphasised that the system proposed by the National Assembly is unlikely to assist in overcoming the culture of authoritarianism. Under the proposals, the office of the presidency would continue to be the focus of elections, the lynchpin of party organization and the fount of all power. Given Kenya’s history, an over–powerful presidency would retard the effective separation of powers as Parliament would become the rubberstamp of the executive and the judiciary would remain subservient to the executive. It would further promote fears of ‘ethnicisation’ as well as personalisation of state power.

Chapter Thirteen: The Judicial and Legal System

The removal of the vetting by Parliament will also affect the independence of the judiciary.

Chapter Fourteen:Devolution

Article 207(2), which provided for the coordination of regional programmes and projects, by the regional governments, has been deleted. At the same time, Article 207(3) which provided that the principal role of the Senate is to provide an institution through which the devolved levels of government share and participate in the formulation and enactment of national legislation and to protect the interests of the Regional, District and Locational Governments has been deleted. Although these are consequential the deletions will impact on co-operative and shared governance as an object of devolution.

One of the objects of the Draft Constitution was to insulate devolved governments from subordination and emasculation by the national or any other upper level of government, this object has been lost by the national government arrogating itself the power to dictate the nature and mechanism of its relationship with the devolved government through legislation. By this new provision the national government can stymie the people’s structures of governance at the local level.

Further, the whole concept of devolved governments being protected from adverse legislation by the national government, by requiring that national legislation has to meet certain objective criteria for it to prevail over devolved government’s legislation on own and concurrent functions, has been turned upside down by the Kilifi Draft proposal that national legislation automatically prevails over district government legislation on concurrent matters. It is also not clear on non-concurrent matters. In effect, this renders the district assemblies toothless and ineffective gatherings in areas where the national government has interests.

In addition, article 210B(2) through which the Senate provided protection to the devolved governments against arbitrary suspension by the President has been deleted and consequently the President may suspend a district government merely on the recommendation of a Commission of Inquiry appointed by him/her. The idea of the involvement of the Senate in this enterprise was to shield the devolved governments, and further provide a second check by the regions through their representatives in the Senate.

The so-called National Forum is unprecedented in devolved systems world-over and cannot be a substitute for either the Senate or the Regional Governments for the following reasons:

  • why would one call a national meeting of all district governments to discuss a matter between two or more districts in one corner of the country as envisaged by Article 221(2) of the Kilifi Draft;

  • though a provision is provided for the district governments to form forums, it is a clever manoeuvre to water down the people’s wishes for effective regional governments;

  • unlike in the Senate where the participation of devolved governments was guaranteed, the idea of the National Forum advising the government is a publicity stunt since the advice by the District Forum is non-binding on the National government with no mechanism requiring compliance by the National government; and

  • Granting one level of government (through Parliament) the power to solely legislate on matters of enabling another government without that government’s participation, as previously envisaged in the Senate, is a farce and indeed would lead to re-centralisation of governance as it happened after independence. This is real where you have a centralist1 President and Party in power.

Article 219(1) (c), on elections to the district legislature, has been adulterated by the sneaking in of a clause requiring that five percent (5%) of the total membership be reserved for political party nominees. The theory behind nominated members of representative bodies is to bring in the views and voices of those who could not be elected through the majoritarian electoral process e.g. the women, marginalized and minority groups, professionals e.tc. However, it is strange that political parties whose candidates will have been elected directly and form the majority of the legislature would want to muzzle other constituencies through the pretext of special party interests. What are these special party interests that those members of the party elected directly cannot represent? It is a ploy to reward party cronies and induce party worship! Furthermore, the people in their views to the Commission said elections at the local level may not be on a party basis.

The mutilation of the people’s views from the Draft Constitution through the deletion of structures of participatory government at the location level and leaving them at the mercy of Parliament and District Government is most unfortunate. The people in their submissions to the Commission and at Bomas demanded for effective governance and efficient service delivery closest to them. Indeed in some areas they felt that the location was remote to them.

Article 228A (1) that requires that at any time, not more than two-thirds of the members of any assembly, council or executive committee constituted under the chapter on Devolution are to be of the same sex has been deleted.

Article 239 (5) of the Bomas Draft that required prompt transfer of a devolved government’s share of revenue raised nationally without deduction, except when the transfer has been stopped under Article 255(2), has been modified by introduction of the following provision “deductions may be made to offset obligations due to the National Government and default in such obligations would be detrimental to the national interests”. Unlike in the Bomas Draft where the people of Kenya fixed the level of indebtedness of their country relative to the Gross Domestic Product at not more than 50%, the Kilifi Draft gives Parliament the discretion to determine the country’s level of indebtedness.

ChapterNineteen:Constitutional Commissions

The PSC Recommendations have scrapped a number of Commissions established in the Draft Constitution (2004) (Bomas Draft) and provided that they be established by legislation. The PSC approach disregards the underlying philosophy in the design of constitutional commissions and constitutional offices in the Draft Constitution (2004) (Bomas Draft). 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 Constitution (2004) (Bomas 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 (2004) (Bomas Draft) 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 (2004) (Bomas Draft). Their entrenchment in the Constitution gives them a constitutional basis for the management of constitutionality.

It must be appreciated that the powers of the legislature, like other organs, have been limited in the Draft Constitution (2004) (Bomas Draft). The Draft Constitution makes the people the repository of sovereignty, and limits the powers of the legislature. The National Assembly 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.


It must be emphasised that by not confining themselves to chapters and issues identified by PSC, PSC Subcommittee violated and exceeded its mandate. Further, the identification of consequential matters was also beyond the mandate of the PSC, as these are the province of the AG in drafting the proposed new Constitution.

1 (adjective) concentrating political power in few hands: the concentration of control, especially political control, in a single authority