The 2010 Constitution of Kenya,
currently in force, 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 Kenya has had two major constitutional
reforms involving wholly new texts since gaining independence: in 1969 and in
2010. 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.
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. Further amendments to the 1969 constitution were later effected,
including, in 1982, the institution of a de jure single party government.
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. 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 party in the 2002 general elections. Official and
civil society consultation processes led to the adoption of what became known as
the “Bomas draft” constitution. 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. 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 Annan, following the outbreak of serious post-election
violence in early 2008. Drafting process for the 2010
Constitution The Constitution of Kenya was the final
document resulting from the revision of the Harmonized draft constitution of
Kenya written by the Committee of Experts initially released to the public
on 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.
The public was given 30 days to scrutinise 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. The Parliamentary Select Committee 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. After failing to incorporate over 150
amendments to the proposed constitution, parliament unanimously approved the
proposed constitution on 1 April 2010. 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.
Government Structure The key changes proposed by the new
constitution released are in the following areas:
Separation of Powers between the Three arms of government i.e. Executive,
Legislature and Judiciary. The Executive – who holds executive
authority and the qualifications. The Legislature – the composition, and
representation of the people. An introduction of an upper house – the
Senate. The Judiciary – qualifications to hold
office and appointment. Devolution – only two levels of
Government: National and Counties. Citizenship – among other issues, gender
discrimination was ended, and citizens who acquire foreign citizenship will not
lose their Kenyan citizenship. Gains achieved
An advanced Bill of Rights that among other things recognises Socio-Economic
rights of the Kenyan citizens.. The removal of age limit of 35 years to
run for president. New draft allows people to run as long as they are of
adult age. Article 137(b) Right to Recall legislators(Senators and
Members of the National Assembly).(Article 104)
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)
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)
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)
Equitable Sharing of resources between the National government and the County
government through a resolution of Parliament. Chapter 12- Part 4.
An Equalization Fund to improve basic access to basic needs of the
marginalised communities.. 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). The Salaries and Remuneration Commission
that is an Independent entity and has the power of regularly reviewing
salaries of all State officers to ensure the Compensation bill is fiscally
sustainable. Article 230(5). Independence of the Judiciary is
affirmed Article 160. An Independent National Land Commission
created to Maintain oversight and manage all Land(Public) 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.
Environmental Rights are recognised under Chapter 5(Part 2)
Freedom of 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.=The Executive=
The executive at the top most levels will be constituted of a president,
deputy president and the Cabinet. Key functions of the president
Shall be the Head of state & Head of government of the Republic of Kenya.
Shall not be a member of parliament Commander-in-Chief – and will declare
war and state emergency upon approval by the National Assembly and Cabinet
respectively. Head of Government – will wield
executive authority and will co-ordinate and supervise all major sections of the
executive branch. Shall nominate, appoint with prior
approval of the national assembly, and dismiss Cabinet Secretaries.
Preside over Cabinet meetings. Shall assent bills into law or refer
them back to parliament for further review.
Shall nominate, and after approval of Parliament, appoint a Chief Justice.
Shall nominate, and after approval of Parliament, appoint an Attorney General
Shall nominate, and after approval of Parliament, appoint a Director of Public
prosecution. Shall appoint Judges to the Superior
Court recommended to him/her by an independent Judiciary Service
Commission. Shall appoint Ambassadors/High
Commissioners to Kenyan embassies abroad.
=The Legislature=The Legislative branch will constitute
of the following An upper house – the Senate
Each of the 47 counties will have a Senator
A senator will be elected by the voters. Tentative total number of Senators will
be 60. Presides over presidential impeachment
hearings A lower house – the National Assembly
Each constituency. Majority of the Members of National
Assembly will be directly elected by voters
There will be a Women’s Representative MP elected from each county – therefore
guaranteeing a minimum of 47 women MPs in the National Assembly.
Tentative total number of MPs will be 347.
Votes to investigate and impeach the president
County Assemblies and Executive The country will be divided to
approximately 47 counties – the counties are comparable to the current districts.
Each county will have a County Executive headed by a county governor elected
directly by the people and; A county assembly elected with
representatives from wards within the county.
=Judiciary=There will be three superior courts:
Supreme Court – highest judiciary organ consisting of the Chief Justice, the
Deputy Chief Justice and five other judges. This court will handle appeals
from the Appeals and Constitutional courts. It will also preside over
presidential impeachment proceedings. Court of Appeal – will handle appeal
cases from the High Court and as prescribed by Parliament. It will
constitute not less than 12 judges and will be headed by a president appointed
by the chief justice. An independent Judicial Service
Commission has been set up to handle the appointment of judges. They will
recommend a list of persons to be appointed as judges by the president.
The commission will consist of the following:
A Supreme Court judge – elected by members of the Supreme Court to chair
the commission Court of Appeal judge – elected by
members of the Court of Appeals to chair the commission
The Attorney-General Two advocates, one a woman and one a
man, each of whom has at least fifteen years’ experience, nominated by the
statutory body responsible for the professional regulation of advocates
One person nominated by the Public Service Commission.
Attorney General Shall be appointed by the president –
with approval from the National Assembly Hold office for only one term of not
more than 6 years. Devolution
Devolution to the county governments will only be autonomous in
implementation of distinct functions as listed in the Fourth Schedule. This is
in contrast with the Federal System in which Sovereignty is Constitutionally
divided between the Federal government and the States. The Kenyan Devolution
system still maintains a Unitary Political Concept as a result of
distribution of functions between the two levels of government under the
Fourth schedule and also as result of Article 192 which gives the president
the power to suspend a county government under certain conditions.
A conflict of laws between the two levels of government is dealt with under
Article 191 where National legislation will in some cases override County
legislation. The relationship between the National Government and the Counties
can be seen as that of a Principal and a limited autonomy Agent as opposed to an
Agent and Agent relation in the Federal System.
More checks and balances have been introduced as requirements for
accountability of both levels of government. The Parliament( Senate and
National Assembly) has much discretion on the budgetary allocations to the
County Governments. Every Five years the Senate receives recommendations from the
Commission of Revenue Allocation and a resolution is passed on the criteria for
Revenue allocation. The National Government is
constitutionally barred from intruding wilfully with the county government role
and function under the Fourth Schedule. Exceptions may require parliamentary
approval. The National Government has a role to play in the County level by
performing all the other functions that are not assigned to the County
Government as listed on the Fourth Schedule.
Citizenship The new constitution makes important
reforms to the previous framework on citizenship, in particular by ending
gender discrimination in relation to the right of a woman to pass citizenship to
her children or spouse; by ending the prohibition on dual citizenship; and by
restricting the grounds on which citizenship may be taken away. The text
has been criticised, however, for not providing sufficient protections against
statelessness for children or adults. A person is a citizen by birth if on the
day of the person’s birth, whether or not the person is born in Kenya, either
the mother or father of the person is a citizen).
A person who has been married to a citizen for a period of at least seven
years is entitled on application to be registered as a citizen).
A person who has been lawfully resident in Kenya for a continuous period of at
least seven years, and who satisfies the conditions prescribed by an Act of
Parliament, may apply to be registered as a citizen).
A person who is a citizen does not lose citizenship by reason only of acquiring
the citizenship of another country and persons who are citizens of other
countries may acquire Kenyan citizenship).
A person who as a result of acquiring the citizenship of another country
ceased to be a Kenyan citizen is entitled, on application, to regain
Kenyan citizenship). Disagreements over reform
After the draft of the constitution was released the type of government which
would be implemented with the constitution was a debate amongst the
various government coalitions. The two major political parties,the Party of
National Unity and the Orange Democratic Movement disagreed on many points. the
greatest discrepancy in opinion is over the nature of the executive branch of
the government. The economic interest represented by the
Kenya Private Sector Alliance, openly opposed the new style of government.
Eventually the contentious issue of the position of Prime Minister was removed.
The remaining contentious issues primarily concern abortion, Kadhi courts
and land reform. Mainstream Christian leaders in Kenya
object to the constitution The Proposed Constitution of Kenya in
Sec 26(4) reiterates and reaffirms the current Kenyan penal code by stating:
Abortion is not permitted unless, in the opinion of a trained health
professional, there is need for emergency treatment, or the life or
health of the mother is in danger, or if permitted by any other written law.
However, the church insists that the weak drafting of the clause, especially
the last two parts, could allow for the same clause to be used to enact laws or
justify procurement of on-demand abortion.
The Proposed Constitution of Kenya in Sec 24(4) exempts a section of society
that profess Islam as their religion from broad sections of the Bill of
Rights that relate with Personal Status, Marriage, Divorce and Inheritance.
The Proposed Constitution of Kenya in Sec 170 Provides for the Establishment
of Kadhi Courts. The Proposed Constitution of Kenya in
Sec 170a Discriminates against all other sectors of society by limiting the
Kadhi’s Job opportunity only to persons that Profess the Muslim Religion. The
church leaders also insist that for the clarity of the separation of religion
and state doctrine and equality of religion, the Kadhi courts should not be
in the constitution. A three Judge Bench of the High Court
has since in a landmark ruling of a case filed six-year ago, declared the
inclusion of the Kadhi court illegal and against the principles of
non-discrimination, separation of religion and state and
constitutionalism. A section of the Muslim leadership has vowed to retaliate
the ruling by seeking their own judicial declaration that the teaching of
Christian religious Education in public school curriculum is illegal. The
education curriculum includes religious education syllabus for both Christianity
and Islam. International reaction
Generally the whole world praised the approach that the Kenyans took to
constitutional reform, seeing it as a viable way to keep corruption in check.
United States Secretary of State Hillary Clinton said that “I am pleased that
they have taken this step, which represents a major milestone.” Other
United States diplomats also commented on the unity and meaningful intent which
Kenyans were presenting in approaching the reform.
Non-profits concerned with civil society and other reforms also praised the
approach. For example, the Africa director for the International
Foundation for Electoral Systems said that “The fact that they are bringing in
stakeholders to lend their voice and make recommendations will strengthen
civil society because they will keep a close eye on the process and, if it is
passed, will ensure that it is respected and properly implemented.”
Canadian Foreign Affairs Minister Lawrence Cannon stated: “On behalf of
the Government of Canada, I wish to congratulate Kenya on the adoption of
its new constitution. This is a significant achievement and an important
moment in Kenya’s history. We welcome the leadership shown by President Mwai
Kibaki and Prime Minister Raila Amolo Odinga within the Grand Coalition
Government in bringing Kenyans together to tackle their future and make progress
through dialogue, and in implementing the reforms set out in the country’s
Kenya’s 2007–2008 election violence and should reaffirm its complete cooperation
and commitment to the ICC.”. Researchers at the UK-based Overseas
Development Institute have praised the 2010 Constitution as a positive step
forwards in terms of securing greater equity for women and children in Kenya,
highlighting “A new narrative for social justice” and “Institutional reforms to
strengthen accountability”. However, they stress that a constitution alone
will not generate the desired changes; what matters is how the constitutional
commitments are translated into policy and practice.
See also Constitution of Kenya
Constitutional Reforms in Kenya Kenyan constitutional referendum, 2005
Kenyan constitutional referendum, 2010 References
External links Website of the Committee of Experts on
Constitutional Review Constitution of Kenya, 2010, as
promulgated The Proposed Constitution of Kenya,
published 6 May 2010 Online interactive Proposed Constitution