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 mobile-friendly website