INTRODUCTION

Throughout the constitution review process, Kenyans have consistently demanded for a governance system that is:

» Transparent and accountable » Provides for citizen participation and involvement » Delineates powers of state organs » Checks the powers of the President » Provides for decentralization of government services and organs

The Constitution of Kenya Review Act of 2008 highlights the following among the objectives of reviewing the current Constitution:

» To establish a free and democratic system of government that guarantees good governance, constitutionalism, rule of law, human rights, gender equity and affi rmative ac-tion

» To recognize and specify divisions of responsibilities among the three arms of government (executive, legisla-ture and parliament) and the various State organs so at to create checks and balances and promote accountability

» To promote people’s participation in the governance of the country through free and fair elections, devolution and exercise of power

This brief analyses the proposed structure of governance as outlined in four chapters of the Proposed Constitution namely: Representation of the People, The Legislature, The Executive, and Devolved Government. It provides a simpli-fi ed summary and analysis of key provisions within these chapters to enable easy reading and understanding.

REPRESENTATION OF THE PEOPLE

The current Constitution does not have a specifi c chapter on representation of the people and the conduct of elec-tions. Provisions on elections are instead included in the chapters on the Executive and Parliament. The Proposed Constitution dedicates chapter seven to “Representation of the People”.

The Proposed Constitution provides the follow-ing new provisions:

» Every citizen has a right to form and participate in activi-ties of political parties, to be registered as a voter, and to participate in elections and referenda. Citizens also have a right to institute court proceedings if these rights are denied, violated or threatened. These provisions found under the “Bill of Rights” are bound to strengthen peo-ple’s participation in political processes.

» Gender equity in public bodies by requiring that at least one-third of the constitution of any pub-lic body is of either gender. This implies that both men and women will be represented in public bodies.

» Fair representation of persons with disabilities in public bodies.

» Progressive registration and participation of Kenyans liv-ing abroad in elections and referenda.

» Allows independent candidates to contest presidential and parliamentary elections. Citizens who are not mem-bers of registered political parties or have not been party members for at least 3 months before election date may now participate in elections as candidates who do not represent any political party.

» Sets dates for regular elections of the President, Mem-bers of Parliament, County Governors and Members of County Assemblies to be held on the second Tuesday in August, every fi fth year. The certainty of the date for elec-tions will enable the Independent Electoral and Bounda-

ries Commission (IEBC), political parties and other con-cerned bodies to undertake proper planning for general elections.

The Independent Electoral and Boundaries Com-mission

» Creates the Independent Electoral and Boundaries Com-mission (IEBC) which will have overall responsibility of reviewing electoral boundaries and names, and conduct-ing elections and referenda. The IEBC will merge the functions of the current Interim Independent Electoral Commission and the Interim Boundaries Review Com-mission.

» The IEBC will consist of between 3 and 9 members, who will be appointed by the President upon approval by the National Assembly following nomination as stipulated in national legislation. Approval for appointment must re-fl ect national principles including gender equity, regional and ethnic diversity. This provision seeks to ensure that the appointments promote the independence of IEBC.

Party List Seats » Allows for allocation of Party List Seats. The list system seeks to promote inclusiveness and proportionality by as-signing seats in proportion to the total number of seats won by a political party participating in a general elec-tion. It provides for additional seats in Parliament and County Assemblies through nomination in a party list as follows:• 12 members in the National Assembly to represent spe-

cial interests including youth, persons with disabilities and workers

• 16 women will be nominated to the Senate• 2 members representing youth (1 man and 1 woman)

in the Senate• 2 members representing persons with disabilities (1

man and 1 woman) in the Senate• Additional members to County Assemblies to ensure

that they are not constituted by more than two-thirds of the same gender

• Additional members to County Assemblies to ensure representation of members of marginalized groups in-cluding persons with disabilities

Political Parties » Provides that every political party will be national in char-acter; promote and uphold national unity; abide by the democratic principles of good governance through regu-lar, fair and free elections within the party; respect the right of all persons to participate in the political proc-ess, including minorities and marginalized groups; and respect and promote fair representation of both gender among other principles. In keeping with these principles, the Proposed Constitution prohibits the formation of po-litical parties on a discriminatory basis including on reli-gious, racial, ethnic, gender or regional basis.

Settling Electoral Disputes » The Proposed Constitution provides that challenges to the election of the President must be fi led within 7 days following announcement of results by IEBC and deter-mined by the Supreme Court within 14 days. This provi-sion is not contained in the current constitution, and will encourage aggrieved candidates to seek judicial redress.

» The Proposed Constitution provides that challenges to the election of members of the National Assembly, Senate or County Assemblies shall be fi led within 28 days after the declaration of results by the IEBC and resolved by the High Court within 6 months. This will mitigate lengthy court processes as a result of lack of similar provisions in the current constitution.

THE LEGISLATURE

The authority of the people to make laws at the national level is vested in, and exercised by, a two-chamber Parlia-ment consisting of the National Assembly and the Senate under the proposed Constitution, and a single-chamber Parliament – the National Assembly – under the current constitution.

The key roles of the two Houses of Parliament under the Proposed Constitution are as follows:

National Assembly » Represent the people and special interests of Constituen-cies

» Enact legislation concerning both county and national governments

» Approve and disapprove Senate’s resolution to determine annual allocation of national revenue among counties

» Review conduct of President, Deputy President and oth-er State offi cers and may initiate the process of removing them from offi ce

» Exercise oversight over state organs » Approve declarations of war and extensions of state of emergency

Senate » Represent and protect interests of counties and their gov-ernments at the national level

» Debate and approve Bills concerning counties » Determine allocation of national revenue among counties » Consider and determine resolution to remove President or Deputy President from offi ce

Implications of two-chamber Legislature: » The two-tier Parliament will enhance transparency and accountability within the Legislature

» Provide for representation of the interests of people at county levels at the national level

» The additional seats provided through nomination by po-

litical parties (party lists) will guarantee representation of people with special interests at national level

The Proposed Constitution provides the follow-ing provisions under the Legislature that are not contained in the current constitution:

» Right of Recall; The electorate has the right to re-call a Member of Parliament representing their con-stituency or county before the end of the term of the National Assembly or Senate. This provides a check on Members of Parliament to ensure that they are continuously accountable to the electorate.

» Disqualifi cation for election as Member of Parliament; A person will be disqualifi ed from being elected as a Mem-ber of either the National Assembly or Senate if the per-son is found to have misused or abused a State or public offi ce. This will strengthen the fi ght against corruption and contribute to building integrity in parliament.

» Party Leaders; There will be a leader of the majority party which will be the largest party or coalition of parties in the National Assembly and a leader of minority party which will be the leader of the second largest party or co-alition of parties in the National Assembly. This will ac-cord political parties more recognition and prominence in parliamentary business

» Public Access and Participation; Parliament shall conduct its business and sittings in public and facilitate public participation and involvement in its legislative and other business. This will increase public participation in the legislative process.

» Right to petition parliament; Every person will have the right to petition parliament to consider any matter with-in its authority, including enacting, amending or repeal-ing any legislation. This will also facilitate greater public participation in the legislative process.

» Limitation on laws conferring fi nancial interest; Parlia-ment will not be able to eff ect legislation that confers a direct fi nancial interest on Members of Parliament until after the next general election of members of parliament. This implies that Members of Parliament will no longer be able to use their legislative powers to increase their salaries and benefi ts. Instead, a Salaries and Remunera-tion Commission shall set and regularly review the sala-ries and benefi ts of all state offi cers including Members of Parliament.

DEVOLVED GOVERNMENT

The main objectives of devolved government in-clude to:

» Promote participation of people in making decisions on issues that aff ect them at local levels

» Ensure equitable sharing of national and local resources » Locate State services and organs closer to the people and thus further social and economic development at local levels

» Enhance transparency and accountability within and be-tween State organs

The Structure of the Devolved Government un-der the Proposed Constitution:

» There will be 47 Counties in Kenya » Each County will have a government consisting of a County Assembly and a County Executive.

Operation of National and County Governments: » Matters aff ecting the country as a whole or those aff ect-ing all counties uniformly will be handled by the National government

» Matters specifi c counties will be handled by county gov-ernments.

» The national and county governments will be required to perform their functions with mutual respect and co-op-eration and to settle any arising inter-governmental dis-putes through alternative dispute resolution mechanisms including negotiation, mediation and arbitration.

» The national government will ensure that county govern-ments have adequate support to enable them perform to their functions.

» County governments shall be allocated not less than 15% of all revenue collected by the national government.

» Marginalized areas will received an additional 0.5% of all the revenue collected by the national government to bring the quality of basic services including water, roads, health facilities and electricity in those areas to the same level as that generally enjoyed by the rest of the nation.

» A Commission on Revenue Allocation will be established under the Proposed Constitution to make recommenda-tions for equitable sharing of national government rev-enue between the national and county governments, and among the county governments.

» A county government may also impose property rates; entertainment taxes; service charges and other taxes that it is authorized to impose by law in order to raise rev-enue.

» A county government will be responsible for establish-ing and abolishing offi ces in its public service, appoint-ing persons to hold such offi ces and removing them from holding or acting in those offi ces.

» The Proposed Constitution provides that the election for the fi rst county assemblies and governors shall be held in 2012.

» The national government will restructure the system of administration commonly known as the Provincial Ad-ministration to fi t within and respect the system of de-volved government

» All local authorities established under the Local Govern-ment Act existing immediately before the Proposed Con-stitution comes into eff ect will continue to exist subject to any law that may be enacted.

PROPOSED STRUCTURE OF NATIONAL GOVERNMENT

National Assembly» Represent the people and special interests of Constituen-

cies» Enact legislation concerning both county and national

governments» Approve and disapprove Senate’s resolution to determine

annual allocation of national revenue among counties» Review conduct of President, Deputy President and oth-

er State offi cers and may initiate the process of removing them from offi ce

» Exercise oversight over state organs» Approve declarations of war and extensions of state of

emergency

THE EXECUTIVE

» The Executive is the arm of Government headed by the President.

» The Proposed Constitution identifi es the Executive com-posed of: the President, the Deputy President and the Cabinet.

» The Proposed Constitution retains the powers of the President as Head of State, Head of Government and Commander-in-Chief. Under the proposed Constitution, the President will chair cabinet meetings, and direct and coordinate functions of government ministries and de-partments.

» Unlike in the current Constitution, the President is re-quired to seek the approval of parliament when ap-pointing Cabinet Secretaries, the Attorney-General, the Secretary to the Cabinet, Principal Secretaries, high com-missioners, ambassadors, and diplomatic and consular representatives. This requirement strengthens the role of parliament in the appointment process of key posi-tions that have political bearing and also checks the pow-ers of the President.

» The Proposed Constitution provides that the President and Cabinet Secretaries will not hold any other state of-fi ce. This implies that both the President and Cabinet Secretaries will not be Members of the Parliament. This provision seeks to separate the roles of parliament and the executive, and enhance the ability of parliament to check the executive. Under the current Constitution, the President and Cabinet members are also Members of Parliament.

» The Proposed Constitution sets the number of cabinet secretaries to between 14 and 22. This is in contrast to the current constitution that does not limit the number of cabinet ministers which has enabled appointment of a bloated cabinet. The Proposed Constitution further re-quires that appointments of cabinet secretaries be done to refl ect ethnic and regional diversity.

» The Proposed Constitution provides for a “majority” president by requiring a winning presidential candidate to secure more than half of the total votes cast in an elec-

tion and at least 25% of the votes cast in a majority of the counties. This contrasts the current constitution that only requires a winning presidential candidate to attain a simple majority and at least 25% of the votes cast in at least 5 provinces.

» Under the Proposed Constitution, parliamentarians can remove the President from offi ce on grounds of a gross violation of the Constitution or any other law, commis-sion of a criminal off ence or gross misconduct. Parlia-mentarians will be able to remove (impeach) the Presi-dent without fear of losing their seats through dissolution of parliament. Under the current constitution, a vote of no confi dence in the President leads to automatic dissolu-tion of parliament.

» The Proposed Constitution requires that the President and Deputy President be elected as running-mates. In the event of a vacancy in the offi ce of the President, the Deputy President may also assume Presidency for the remainder of the term. These provisions which are not present in the current constitution strengthen the offi ce of the Deputy President.

» The Proposed Constitution establishes the offi ce of a Di-rector of Public Prosecutions (DPP) who will be respon-sible for instituting, undertaking, taking over and discon-tinuing criminal proceedings. This function is currently the responsibility of the Attorney-General who is also an ex-offi cio member of the National Assembly and cabinet.

» The Proposed Constitution requires the Attorney-Gener-al to vacate offi ce within one year after it comes into eff ect and that new appointments for this offi ce will be made with the approval of parliament. However, the Proposed Constitution does not outline the procedure through which the Attorney General may be removed from offi ce.

» The proposed Constitution requires that decisions made by the President and Cabinet in the performance of their functions will be in writing, and in the case of a Presi-dential decision, shall bear the seal and signature of the President. This requirement is not provided for under the current Constitution and will enhance transparency and accountability within the offi ces of the President and cabinet secretaries.

Quali� cations and Election of President

Current Constitution Proposed Constitution ImplicationsCandidates for Presidential election must be at least 35 years

Candidates for Presidential election must be qualifi ed to stand for election as Member of Parliament (regis-tered voter)

Candidates for Presidential election must be at least 18 years of age. Provides opportunity for youth to vie for Presidency

Date for regular presidential election and swearing-in of President-elect not stipulated or set in constitution

Dates for regular presidential elections and public swearing-in of President-elect stipulated in the Consti-tution

Predictability of date for election or swearing-in cer-emony. President cannot be sworn in “secretly”

For candidate to win presidential election, they need to attain a simple majority of votes cast and at least 25% of votes cast in at least 5 provinces

For candidate to win presidential election they must at-tain more than 50% of total votes cast and at least 25% of votes cast in each of more than half of the counties

President must be the preferred candidate for majority of all voters who have cast their votes. Provision pre-vents possibility of a minority president

No stipulation on time-frame for determining petitions challenging election of President

Petitions challenging election of President must be fi led within 7 days and determined by Supreme Court within 14 days, and before the date stipulated for swearing-in of the President-elect

Candidates have more incentives to seek judicial redress in case they disagree with election results. President-election cannot be sworn in before resolution of peti-tion challenging their election

Powers of President President unilaterally appoints ministers, attorney gen-eral, permanent secretaries, head of civil service, high commissioners, ambassadors and diplomatic and con-sular representatives

President nominates and appoints with the approval of the National Assembly, cabinet secretaries, Attorney General, secretary to cabinet, principal secretaries, high commissioners, ambassadors and diplomatic and con-sular representatives

Powers of President limited and additional checks for transparency introduced through the requirement to have parliament approve key appointments

President appoints vice-president President nominates the Deputy President as running mate; and both are elected on one ticket

Powers of President reduced. Arbitrary appointment of deputy president and for purposes of political expedi-ency after election will be eliminated

Can appoint judges, constitutional and public offi cer holders, nominate and dismiss ministers, ambassadors during transition to new president

Cannot appoint judges, constitutional and public offi ce holders, appoint or dismiss cabinet secretaries and to other state or public offi cers during transition to new president (between date of fi rst vote in new election and swearing in of new President)

Outgoing president cannot seek to reward friends or supporters, or de stabilize incoming government by appointing his/her cronies during transition period be-tween two governments

Composition of Executive

President and Ministers are Members of Parliament President and Cabinet Secretaries cannot hold any oth-er State or public offi ce

This will enhance division of responsibilities and ac-countability between the Executive and Parliament

No limit on number of cabinet ministers Number of cabinet secretaries limited to between 14 and 22

Proposed Constitution ensures a lean cabinet

No provision of ensuring regional and ethnic diversity in the national executive

Requirement that national executive shall refl ect re-gional and ethnic diversity of the people of Kenya

Regional and ethnic diversity in national executive shall promote national cohesion

Removal of President and Vacancy in O� ce of President

A vote of no-confi dence in the President leads to auto-matic dissolution of parliament. No provision for im-peachment

Provision for impeachment on grounds of violation of the Constitution or any other law; commission of a crime; or gross misconduct. Impeachment of the Presi-dent does not lead to dissolution of parliament

Parliamentarians will no longer fear losing their seats for impeaching/removing a President

In case of vacancy in the offi ce of the President, Vice-President assumes offi ce for 90 days pending a fresh election

In case of vacancy in offi ce of President, Deputy Presi-dent assumes offi ce of President for the remainder of the term of the President

The Deputy President is empowered to assume offi ce of President for remainder of term in case of vacancy. This both elevates the offi ce of Deputy President and removes necessity for fresh elections

No provision for person who assumes offi ce in case of vacancy in offi ce of President, and the vice-president being unable to assume offi ce of President

In case of vacancy of offi ce of President, and if dep-uty president is unable to assume the offi ce of president, the speaker of national assembly as-sumes offi ce for 60 days pending fresh election

The proposed Constitution provides certainty of the person who assumes power in case of vacu-um caused by deputy president not being able to assume offi ce of president when it falls vacant

COUNTY ASSEMBLY » Exercise power to enact laws at county level » Exercise oversight over the County Executive Committee and other

county executive organs » Receive and approve plans and policies for management of the county’s

resources, infrastructure and institutions » Members elected by voters from wards » Additional seats to ensure that assembly is not composed by more than

two-thirds of the same gender » Additional special seats may be prescribed to ensure representation of

marginalized groups including persons with disabilities and the youth » Speaker elected by members of the County Assembly and who will not

be a member of the assembly

COUNTY EXECUTIVE » Exercise executive power at county level » Implement laws for the benefi ts of Counties and, to administer functions of

the County » County Governor directly elected by voters in the county » Deputy County Governor nominated by the County Governor as his or her

running mate » Members of County Executive Committee appointed by the Governor with

approval of the County Assembly and shall not be members of the County Assembly

» Members of a County Executive Committee are accountable to the County Governor and will cease to hold offi ce if a vacancy arises in the offi ce of the County Governor

» County Governor may be removed from offi ce on grounds of physical or mental incapacity, gross violation of the constitution or any other law, abuse of offi ce or gross misconduct

Comparison of the Structure of the Executive in the Proposed Constitution against the Current ConstitutionCOUNTY GOVERNMENT

UNDERSTANDING

GOVERNANCE

AND

DEVOLUTION STRUCTURES IN THE

PROPOSED CONSTITUTION OF KENYA - 2010

CENTRE FOR GOVERNANCE AND DEVELOPMENT