Katiba Day Celebrations
The Journey, Gains and Nature of the
Constitution of Kenya 2010
Katiba Day is held in commemoration
of the day the Constitution of Kenya 2010 was promulgated and came into force.
August 27, 2010 marks an important milestone in the long and winding struggle
for a new constitutional dispensation
The 2010 Constitution of Kenya
replaced the 1969 constitution, that itself had replaced the 1963 independence
constitution. The constitution was presented to the Attorney General of Kenya
on 7 April 2010, officially published on 6 May 2010, and was subjected to a referendum
on 4 August 2010. The new Constitution was approved by 67% of Kenyan voters.
The constitution was promulgated on 27 August 2010
Brief
History of Constitutional Reform in Kenya
Ø Kenya has had two major constitutional
reforms involving wholly new texts since gaining independence. The first was in
1969 while the second was in 2010
Ø In 1969, the 1963 independence
constitution was replaced with a new text that entrenched amendments already
made to the system of government that the independence constitution had
contemplated.
Ø These changes included: changing the
structure of the state from a federal, or Majimbo system, to a unitary system;
creating a unicameral instead of bicameral legislature; changing from a
parliamentary to a semi-presidential system with a powerful presidency; and reducing
the protections of the Bill of Rights.
Ø Further amendments to the 1969
constitution were later effected, including, in 1982, the institution of a de
jure single party government.
Ø The demand for a new constitution to
replace the 1969 text with a more democratic system began in the early 1990s,
with the end of the Cold War and democratic changes taking place elsewhere in
Africa.
Ø The single party system was ended in
1991, and the first presidential election took place in 1992. Calls for a
comprehensive review of the 1969 Constitution intensified in the late 1990s and
early 2000s, helped by the victory of the opposition National Rainbow Coalition
(NARC) party in the 2002 general elections.
Ø Official and civil society consultation
processes led to the adoption of what became known as the "Bomas
draft" constitution (after the location of the conference that adopted
it).
Ø However, substantial amendments were
nonetheless made to this draft prior to a referendum in 2005, resulting in a
split in the then ruling coalition. The Liberal Democratic Party faction of the
government, led by Raila Odinga and supported by KANU led a successful 'No'
vote against the amended Bomas Draft (called the Wako draft after the alleged
mastermind of the changes).
Ø The review of the Constitution stalled
and negotiations over the adoption of a new text seemed deadlocked. A deadlock
only finally broken by the intervention of the African Union through a
mediation team headed by Kofi Anan, following the outbreak of serious
post-election violence in early 2008.
Drafting of the Constitution of Kenya 2010
Ø
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.
Ø
The Harmonized draft was initially
released to the public on 17 November 2009 so that the public could debate the
document and then Parliament could decide whether to subject it to a referendum
in June 2010.
Ø
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 8 January 2010.
Ø
The Parliamentary Select Committee
(PSC) revised the draft and returned the draft to the Committee of Experts who
published a Proposed Constitution on 23 February 2010 that was presented to Parliament
for final amendments if necessary.
Ø
After failing to incorporate over 150
amendments to the proposed constitution, parliament unanimously approved the
proposed constitution on 1 April 2010.
Ø
The proposed constitution was
presented to the Attorney General of Kenya on 7 April 2010, officially
published on 6 May 2010, and was subjected to a referendum on 4 August 2010.
The new Constitution was approved by 67% of Kenyan voters
Gains
achieved in the Constitution of Kenya 2010
Ø An advanced Bill of Rights that among
other things recognizes Socio-Economic rights of the Kenyan citizens. (Chapter
Four).
Ø The removal of age limit of 35 yrs to
run for President. New draft allows people to run as long as they are of adult
age. Article 137(b)
Ø Right to recall legislators (Senators
and Members of the National Assembly).(Article 104)
Ø Representation in elective bodies has
to effectively meet a gender equity constitutional requirement, namely that no
more than two-thirds of members shall be from either gender in its make up.
Chapter 7, Article 81(b)
Ø Integrity Chapter, requires an Independent
Ethics Commission to be set up that will monitor compliance with Integrity in
all government institutions and make investigations, recommendations to the
necessary authorities i.e. Attorney General and any other relevant
authority.(Chapter Six)
Ø An advanced Human Rights and Equality
Commission that will also have power to investigate and summon people involved
in Human Rights abuses within the government and with the public.(Article 252)
Ø Equitable Sharing of resources between
the National government and the County government through a resolution of
Parliament. Chapter 12- Part 4.
Ø An Equalization Fund to improve basic
access to basic needs of the marginalized communities. (Article 204).
Ø Any member of the public has a right to
bring up a case against the government on the basis of infringement of Human
Rights and the Bill of Rights – Article 23(1) (2). The courts and government
institutions are bound to the Bill of Rights as per the Constitution Article
2(1); Article 10(1).
Ø The Salaries and Remuneration
Commission that is an independent entity and has the power of regularly
reviewing salaries and related benefits of all State officers to ensure the
Compensation bill is fiscally sustainable. Article 230(5).
Ø Independence of the Judiciary is
affirmed Article 160.
Ø An independent National Land Commission
created to maintain oversight and manage all public land belonging to National
and County Government and recommend policy on addressing complaints from
public, advise the National government on ways of improving National and county
land management, planning, dispute resolution. Article 67.
Ø Environmental rights are recognized
under Chapter 5(Part 2)
Ø Freedom of the media establishment from
penalty on expression, by the State on any opinion and dissemination of media.
Article 34. This is subject to the Article 33.
Ø Devolution remains the centerpiece of
the Constitution of Kenya and will bring about equitable development in the
country by promoting equity
Challenges in the implementation of the
Constitution
Ø Critical pieces of legislation required
to elaborate on key constitutional principles were passed by the largely
unreformed 10th Parliament. Most of these enabling laws, like the
Leadership and Integrity Act were greatly diluted thus eroding the gains and
intention (spirit) of the Constitution
Ø Public interest litigation (PIL) that
civil society groups and private individuals have resorted to in an attempt to
streamline these laws to the spirit and text of the Constitution require
resources that are limited.
Ø The law required to harness public
participation in the implementation of the Constitution and governance overall
is yet to be passed, allowing the political leadership to get away with laws
that do not meet the threshold of the constitution
Ø The Constitution has established a
completely new structure of government, complete with a devolved system of
governance. Public participation in such a complicated governance structure is
still hampered by lack of civic and political education
Ø Majority of the Kenyan people are yet
to embrace the values and principles of the new constitution and shift from old
ways of conducting private and public affairs as espoused in the Constitution.
Ø There is limitation of resources for
civic and political education on the new constitutional order. High levels of
illiteracy and ignorance among especially rural populations is a challenge in
the implementation of the Constitution.
Way
forward
Ø Civic and political education should
be intensified to harness public participation in the constitution
implementation process and governance
Ø Advocacy and lobbying should be
intensified to generate the political will necessary to ensure laws passed meet
the threshold of the Constitution
Ø National and County governments,
development partners and traditional civic education providers should
prioritize and allocate more resources for civic and political education
Ø The anticipated law on public
participation should be passed as a matter of urgency to guide and enhance
public input into the enactment and implementation of laws, policies and
development plans
Ø The public should engage the
Judiciary with a view to lobbying it to review and remove legal costs involved
in public interest litigation to make it possible to advocate for nullification
of laws that undermine the constitution
Ø Civic and political education should
be integrated in the public and private education curriculum at all levels to
enhance public consciousness
