AP-ROAD AWAY FROM MOGADISHU

This memorandum is the joint presentation by the Alliance of Parties (Hereinafter referred to as AP) listed in the Appendix 1.

AP would like to reiterate its commitment towards the realisation of a new constitution as the basis of a renewed nationhood, realising that a new constitution is a key ingredient towards the realisation of Kenya’s Vision 2030 that seeks to turn Kenya into a modern, prosperous and politically stable middle income economy by the year 2030 and beyond.

AP supports entrenchment of democratic principles through dismantling all forms of imperialism and impunity. In so doing, AP is also cognisant of the dangers of transferring impunity and imperialism from the current system, structures, institutions and individuals to a new system, structures, institutions and individuals. At the same time, AP is alive to the dangers of weakening the structures and institutions necessary for the effective functioning of nation state thus creating conditions for disintegration of the state as has happened in countries like Somalia. A system of government as has been proposed in the Harmonized Draft Constitution (HDC) is an express ticket to take us from imperialism to Mogadishu and is therefore totally unacceptable to AP.

Taking into consideration the stage that our nation has reached over the last 46 years, and learning from the evolution of modern developed democracies and economies in the world, AP is of the view that what our nation requires is a presidential system where the potential for any form of imperialism is countered by a robust system of checks and balances through strengthening of all institutions. These institutions include but are not limited to a vibrant parliament, judiciary, public service, media and the civil society.

In addition AP fully supports vertical devolution of power and functionality through a two-tier devolution structure in order to further check on the powers of the presidency and the executive and create a second fire-wall against imperialism

AP is opposed to the notion that the only way to safe-guard the nation against imperialism is by creating an unstable divided executive that divides authority between a President and the Prime Minister, leaving both of them so weak to an extent that none of them can reliably assure survival of the nation state. The HDC in as far as executive authority is concerned creates a situation whereby neither the President nor the Prime Minister can look at Kenyans straight in the eye and tell them “I can assure you there will be a country tomorrow”

In making these recommendations, AP is guided by our undying, eternal loyalty to the people of Kenya. In this regard, we have total faith that the people of Kenya have the inalienable right to elect their leaders, from the lowest levels in the county governments to the Chief Executive of the country. Kenyans have spoken, and they have stated their desire to elect their Chief Executive directly through universal suffrage of all adults. To transfer the power to elect the Chief Executive from over 14 million voters to 222 men and women in parliament is to undermine the intelligence of the Kenyan people. Kenyans want to vote directly for the man or woman who will look at them straight in the eye and tell them “I can assure you there will be a country tomorrow”. That is a task so noble, so sacrosanct that the people are not ready to outsource it to 222 people in parliament. Doing otherwise would be tantamount to grabbing executive power through the back-door.

With due respect to the foregoing, AP supports the position of a Prime Minister, not for the purposes of creating an unstable, divided executive but to assist the President in delivering his contract with the people, which contract is based on the manifesto that defines the aspirations and pledges of a victorious presidential candidate. The complexity of running modern day nations is such that the Chief Executive Officer (CEO) of the country requires effective support of an able Chief Operating Officer (COO) in the name of a Prime Minister. The raison d’être of a Prime Minister within a Presidential System is to ensure smooth running of the affairs of the country. It is not for the purpose of dividing power between individuals. That is why in 28 countries with a Presidential system of government in Africa, there is a Prime Minister who supervises and co-ordinates day to day government functions. These countries are Tanzania, Uganda, Rwanda, Angola, Cameroon, Côte D’Ivoire, Equatorial Guinea, Gabon, Kenya, Mozambique, Namibia, Niger, Togo, Tunisia, Algeria, Burkina Faso, Cape Verde, Central African Republic, Zimbabwe, Chad, Democratic Republic of the Congo, Djibouti, Egypt, Guinnea Bissau, Madagascar, Mali, Sao Tome and Principe and Senegal

It is with the foregoing in consideration that AP recommends a presidential system with an operational prime minister. The model that is closest to AP’s position is the Tanzanian model and the Committee of Experts is hereby requested to study carefully the Tanzanian model to guide it in the task of revising the HDC

Regarding the other highly contentious matters in the HDC, AP notes that the principle of the equality of the vote has not been captured in the principles of the Republic and the constitution. As far as delimitation of constituency boundaries, AP recommends that the specific deviation principle of between 5% and 20% as recommended by the Kriegler Report (2008) be incorporated as the guiding principle for the boundaries commission. Further, AP supports a mixed member proportional representation (MMPR) system to give political parties guidance and directions on how to take care of the interests of women, youth, professionals, persons with disabilities and disadvantaged groups.

On devolution, AP supports a two layer devolved structure, i.e. National Government and Regional Governments. The regional governments should be on the basis of the 41 districts that prevailed at independence as they more economically viable.

AP does not support a whole-sale condemnation of judges as this would be tantamount to discriminatory treatment vis-a-vis the other two forms of government. If judges are to resign en masse, the executive and parliament should also resign so that the entire country can start on a new slate immediately the new constitution is enacted.

Regarding transitional arrangements, AP is opposed to the creation of a commission to supervise the implementation of the new constitution as this would be tantamount to creating a care-taker government. This role should be left to the parliament and the judiciary. The transitional arrangements also give a new lease of life to the national accord while it was clear ab initio that the grand coalition government was created for the purpose of coming up with a new constitution.

AP therefore demands that as per the provisions of the current constitution, the national accord should expire with the next General Elections or with the enactment of a new constitution, whichever comes earlier.

In conclusion, AP notes that the HDC is an unwieldy document; it is verbose and contains many provisions that can be taken care of through legislation. AP is also disappointed to note that the HDC contains a disproportionately high level of spelling and grammatical errors that it would be very difficult not to question the integrity and competence of the Committee of Experts.

AP now hereby outlines the generic and specific comments, observation and recommendations.

II. General Comments, Observations and Recommendations on the Draft

Unlike the current constitution which has 127 sections of frame laws, principles and provisions, the Harmonized Draft is a lengthy document consisting of 21 chapters, 316 sections, 7 schedules and a preamble, consisting of policy statements, regulations and functions of proposed institutions, which could be contained in specific acts of parliament. The draft has the following highlights:

- Transfers executive authority from the President directly elected by over 50 percent of the voters to a Prime Minister elected by parliament, splitting the executive and creating two competing centers of power with the Premier as the Head of Government and President as a ceremonial Head of State.

- Departs from established tenets of electoral democracies by giving power to the Prime Minister as the Head of Government and of the party/coalition with a majority in Parliament to nominate Ministers to the cabinet, to run the government and chair cabinet.

- Provides for a deputy president who is popularly elected as the running mate of the President, but completely shifts power to the Prime Minister, adding to a protocol conflict and creating conflict between the two subordinates of the presidents.

- Provides for half of the Ministers in cabinet to be nominated from non-parliamentarians and increases the total number of members of parliament from 222 to 295.

- Creates an upper house, a 113-members Senate, represent the regions and a devolved government with 8 regions/provinces and 74 counties each headed by executives.

- Elevates Nairobi Province into a metropolitan region headed by a popularly elected Mayor, departing from the collegial system where the mayor was elected by city councillors.

- Retains the Kadhi court system as provided for in the current constitution.

What follows are the comments, observations and recommendations on the draft constitution.

SUMMARY OF GENERAL RECOMMENDATIONS

The Committee of Experts should:

1) Protect the right of all Kenyans as equal citizens of Kenya based on the principle of common humanity. The harmonized draft should be anchored on the universal principle of the Common Humanity of the Kenyan people, treat tribalism or ethnicity as irrelevant and delete all parts in the constitution referring to the “communities” (used as a euphemism for “tribes”).

2) Protect the right of Kenyans to elect their leaders, including the president, prime Minister and regional leaders. The Harmonized Draft should not freeze into law the current chaotic, adversarial and unworkable mongrel or ‘hybrid’ executive under the power sharing Grand Coalition, which creates two competing centers of gravity and exposes the country to possible paralysis, chaos and anarchy. It should be explicitly clear on an indivisible executive where power rests with the leader popularly elected on a high threshold of 50% plus one and by a clear majority in the counties rather than a handpicked appointee of a partisan electoral college or elected by parliament.

3) Respect the right of the people of Kenya to fair representation and equality of their vote. The chapters on the representation of the peoples, legislature, executive and devolved government should be revised to reflect the principle of fair representation on the basis of equality of vote. The draft should explicitly provide a clear standard of deviation from the one-man-one vote principle, using Kriegler’s 5%-20% provision.

4) Protect the right of Kenyans to a government they can afford. The harmonized draft should limit the devolved government to two levels—the central and county governments—as the most effective way of devolving resources and power to the grassroots. It should abolish the 8 regional levels and the current provinces and replaced them by stronger county level governments based on the 41 country governments that existed under the 1963 constitution plus 3 proposed county governments for Nairobi (making a total of 44—46 counties). Each County should produce two senators to create an 88-92 member senate chamber.

5) Protect the right of displaced Kenyans to decent life, justice and to return to their homes and property. The harmonized draft should establish a Special Transitional Mechanism on impunity with a mandate to try those who have committed heinous crime relating to politically-motivated violence against Kenyans since 1991; enable those displaced from their property, including land since 1991 to get it back; and promote and protect the right of the internally displaced to return to their homes and property.

JUSTIFICATION FOR THE RECOMMENDATIONS

• The Harmonized draft’s obsessive use of “communities” as a euphemism for “tribes” can balkanize the country into tribes, threatening national cohesion, unity and harmony.

• The divided executive with two centers of power as proposed by the draft is philosophically faulty and cannot serve as a check on excessive presidential powers. On the contrary, evidence from Congo to Ukraine shows that a split executive has resulted in dysfunctional and unworkable governments, political paralysis and recipe for chaos, anarchy and national disintegration.

• The real check on an imperial presidency lies in the principle of checks and balances between the three arms of government—the executive, legislature and judiciary—and devolution of executive power to lower levels.

• By being unclear and equivocal about the issue of fair representation and equality of vote, the Harmonized Draft can potentially create a constitutional dictatorship of the minority over the majority, violating all tenets of democracy.

• The draft creates confusion and loopholes which could be used by unscrupulous elites to stage a ‘coup’ through the constitution.


III. Specific Comments, Observations and Recommendations on the Draft

Comments on Drafting

The Harmonized Draft Constitution lacks the proficiency, clarity and professionalism of the current constitution, which consists of only 127 sections of frame law, broad principles and provisions. By and large, the proposed supreme law:

- Goes against the basic attributes of a good constitution
- Is too rigid to allow for broad and flexible interpretation
- Is detailed, lengthy and somewhat unwieldy (contains a preamble, 21 chapters, 316 sections and 7 schedules).
- Is angry in tone, activist and sometimes non-neutral and offensive in language;
- Instead of confining itself to principles, it contains policy statements, regulations and functional details which can be easily addressed by acts of parliament
- In its thrust, it appears to be legislating the past (ethnic/community grievances and sense of inequalities) rather than the future.
- Changes names of offices, institutions and bodies willy-nilly without offering justification(s) or paying attention public memory.
- Has numerous errors, inaccuracies and typographical errors.

Recommendations on Drafting

With respect to the general comments, observations and recommendations, the Committee of Experts should revisit and revise the draft in order to:

- Be explicit about the common humanity of the people of Kenya as opposed to stressing their ethnicities and other localized identities.
- In view of the above, treat tribalism or ethnicity an insidious principle in constitution-making, and expunge all parts in the constitution referring to the “communities” (used here as a euphemism for “tribes”) in favour of the common humanity of all Kenyans.
- Separate principles of law from policy statements, regulations and functions of institutions, which can be provided for in acts of parliament.
- Allow for broad and flexible interpretation of the law rather than providing a rigid constitution.
- Ensure a neutral, non-emotional constitution in regard to language and tone.
- Give the current and future generations a constitution for the future, not one trapped in the past.
- Clean up the document to remove the numerous mistakes, inaccuracies and errors.
Aim to give posterity a simple, sharp and short supreme law document


Comments on the Preamble


The Preamble of the Draft Constitution

- Captures the vision of the Kenyan people, but privileges just three identities” in the part that reads “PROUD of our ethnic, cultural and religious diversity…”
- Kenya has more diversities than ethnic, cultural and religious identities, which cannot ably be listed in the constitution.

Recommendations on the Preamble


The Draft should:

- Delete the words “ethnic, cultural and religious.”
- Confine itself to principles such as “protection of or pride in diversity.

Comments on Chapter 1: Sovereignty of the People and Supremacy of the Constitution

On the sovereignty of the people, the draft constitution:

- appears to make the will of the people conditional to the constitution (“All sovereign power belongs to the people of Kenya and may be exercised only in accordance with this Constitution”) (section 1 (1))

- Does not seem to appreciate that despotism can be constitutional or non-constitutional and the unqualified recognition of the “Sovereignty of the people” is bastion against all forms of tyranny.

Recommendations on Chapter 1: Sovereignty of the People and Supremacy of the Constitution

The Draft Constitution should:

- Revise Section 1 (1) to read: “All sovereign power belongs to the people of Kenya.”

- Create a new clause that reads: “The sovereign power of the people may be exercised only in accordance with this Constitution.”


Comments on Chapter 2: The Republic

On the Republic, the Draft Constitution:

- Creates three levels of government: national, regional and county without taking into account the cost of these tiers to the country.

- Fails to provide a detailed schedule defines the Kenyan territory, leaving the matter to the definition under international law

- Takes conservative and static position in regard to the regions and counties sticking to the 1963 figure in regard to the regions and to the counties/districts of the Moi era (Schedule 1).

- Errs by legislating technology by calling on the state to promote the development of the use of Braille—technology is dynamic (9 (4)).

Recommendations on Chapter 2: The Republic

The draft constitution should:

- Limit to two the levels at which the sovereignty of the people is exercised: National and Counties, which are closer to the people.

- Provide the longitudinal and latitudinal dimensions of Kenya’s territory.
Redefine the regions and counties to reflect the growth of population and need to devolve power and resources to the grassroots.


Comments on Chapter 3: National Values, Principles and Goals


On national values, principles and goals, the draft constitution:

- Conflates values, principles and goals with police and ideological positions.

- Section 13 (2) is more rhetorical than an articulation of principles.
The whole chapter could be shorter.

Recommendations on Chapter 3: National Values, Principles and Goals

The draft constitution should:

- Separate values, principle and goals.
- Re-write the whole chapter to reflect values, principles and aspiration as capture in the preamble.
- Limit itself to values, principles and goals and remove policy statements.
Revisit the National Anthem among other sources to provide a coherent set of values, principles and aspirations: Justice, patriotism, equality, peace, liberty or freedom, unity and pursuit of prosperity

Comments on Chapter 4: Citizenship

Regarding citizenship:

- The responsibility of citizenship is too broad to legislate in one section set out in 24 (1).
- Some of the rights and responsibility listed in this section already exist in specific acts or statutes or can be provided for in acts of parliament (Section 25).
- Other rights and responsibilities of a citizen are not enforceable.
-
Recommendations on Chapter 4: Citizenship

The draft constitution should:

- Leave the responsibility of citizenship to parliament to enact legislation.

Clarify whether a person who becomes a citizen by naturalization loses or retains his/her original citizenship (section 19)

Comments on Chapter 5: Culture

On culture,
- The responsibility of the state can be left to an act of parliament;
Many of these responsibilities are policy statements and not principles (section 27).

Recommendations on Chapter 5: Culture

The section on culture should:

- Be revise it to read “This constitution reconizes the right and equality of all cultures before the law as the foundation of the nation and the cumulative civilization of Kenyan people. Specific issues shall be provided for in the constitution” (section 26).

The rest of the sections 26 (a), (b), (c) should be provided for by an act of parliament.

Comments on Chapter 6: The Bill of Rights

On the bill of rights,

- Is too detailed and lengthy spurning 17 pages, 49 sections.
- Acts of parliament already exist or can be enacted to cover policy issues relating to refugees and asylum seekers (section 58), trade, occupation and profession (sec. 58); labour relations (Sec. 60); social security (61); heath (62); education (63); housing, food, water, gender and environment.

The Right to language and culture, environment and access to justice are covered by other relevant chapters/ sections.

Recommendations on Chapter 6: The Bill of Rights

The draft constitution should:
- Be reduced to constitutional principles and broad provisions.
- Avoid unnecessary repetition of issues already dealt with by other sections.
- Leave many of the issues to be enacted by parliament.

Comments on Chapter 7: Land and Property

On land and property,

- The section titled ‘Principles of Land Tenure’ should focus on constitutional principles than policy statements. Parliament has provided/should provide act on land.

Recommendations on Chapter 7: Land and Property

The draft Constitution should:

- Separate policy and constitutional principles;
- Provide for parliament to enact acts on land;

Comments on Chapter 10: Representation of the People

The draft constitution

- Fails to uphold or promote the universal principle of equality of vote and fair representation;
- Perpetuates the prevailing legacy of Gerrymandering.
- Does not set a specific principle upon which the deviation to the equality of vote in regard to representation for urban and sparsely populated areas can be based.

Recommendations on Chapter 10: Representation of the People
The draft constitution should:

- Recognize fair representation based on the principle of equality of vote as a fundamental right, a universal principle and the foundation of democracy.
- Provide specific deviation based on a deviation between 5% and 20% as provided for in the Kriegler Report.
- Provide for the Boundaries Review Commission to complete before the next election in 2012 the constituencies and electoral boundaries reflecting the spirit of fair representation on the basis of equality of vote.

Comments on Chapter 11: Legislature

The Draft Constitution:

- Does not clearly provide for the functions of the proposed senate.
- Does not define the relationship between the lower house and the senate.
- Has a problem of organization and mixing of the two chambers of the legislature.
- Has not give separate names to the speakers of the two houses, potentially creating confusion.
- Has not addressed the unrepresentative nature of the current parliament arising from past Gerrymandering.


Recommendations on Chapter 11: Legislature

The draft constitution should:

- Provide for the direct election of Senate members through universal suffrage rather than electoral colleges to reflect the spirit of democracy.
- Use party lists based on the Mixed Member Proportional Representation (MMPR) to address the nominations of minorities and disadvantaged groups like Women, Youth and Persons with Disabilities.
- Clearly define the functions of each chamber and their relationships.
The Deputy President to be the Chairman of the Senate

Comments on Chapter 12: The Executive

On the Executive, the Draft Constitution:

- Arbitrarily shifts the power of the President, popularly elected by the people on a high threshold of 50% plus one and a majority vote in the regions to a Prime Minister not elected by the people, but by parliamentarians.
- Creates two competing centres of power, putting the country at risk of instability, chaos and anarchy.
- Replaces an imperial President with an imperial prime minister, stifling Kenya’s long-cherished dream of real democracy.
- Creates a dictatorial Prime Minister without effective checks, accountability and responsibility to the people.
- Allows a presidential candidate who lose in a democratic election to implement his/her manifesto as a Prime Minister, thus circumventing the will of the people;
- The creation of an executive prime minister with no popular mandate from the people and not accountable to a directly elected president amounts to a coup through the constitution.
- The introduction of an executive prime minister is not a sufficient check or measure of reducing the powers of an imperial president. Indeed, a prime minister and the president can conspire against the people of Kenya and return the country to dictatorship. The safest guarantee are checks by other arms of government—parliament and the Judiciary.

Recommendations on Chapter 12: The Executive

The draft constitution should:

- Avoid a mongrel executive: A clarity on who is the chief executive of the Republic of Kenya, whether “PRESIDENT” or “PRIME MINISTER,” who should be directly elected by the people and exercise full authority through relevant organs of checks and balances by parliament and judiciary to avoid all forms of imperialism.

- Uphold the indivisibility of executive: Recognize that the executive is popularly elected on a high threshold of 50% plus one of the national vote and 25% of half of the regions, and a run-off within 30 days between the top 2 candidates where the same is not attained.

- Create a President who is:
• Head of state and government, working with a Deputy President, Prime Minister and a cabinet.

• Commander-in-chief of armed forces, and chairs the National.
• Appoints and fires prime minister, deputy Prime Ministers, ministers and deputy ministers, subject to parliamentary approval; judges of the superior courts, state or public officers, High Commissioners, ambassadors, and diplomatic and consular representatives with the approval of the National Assembly.
• Has the prerogative to chair cabinet meetings, but normally leaves this to the prime minister.

- Creating a Prime Minister who:
• is the most senior minister of cabinet;
• Chair cabinet at the request of the president;
• Leader of government business in parliament
- Coordinate and supervise the work of the ministries.


Comments on Chapter 13: Judiciary

On the Judiciary, the Draft Constitution:
- Provides no justification for increasing the number of superior courts: including the High Court, Court of Appeal, Constitutional Court and Supreme Court.
- Creates many superior courts with potentially conflicting jurisdictions and mandates;
- Provides no minimum number of judges needed to make courts effective.
- Gives no focus to the need to enhance the capacity of the judiciary.
- Is draconian and discriminative in its decision to retire the Judiciary enmass as per the transitional clause.

Recommendations on Chapter 13: Judiciary

The Draft Constitution should:

- Not retire Judges Enmass and if so, it should apply the same principle to all other arms of government to avoid discrimination.
- Focus on enhancing the capacity and efficiency of the courts rather than changing the faces of Judges;
- Eliminate the proposed Constitutional Court as a stand-alone court and transform it into a section of High court.

Provide the minimum number of Judges of the superior courts.

Comments on Chapter 14: Devolved Government

On devolved government,

Recommendations on Chapter 14: Devolved Government

- . Leaders of devolved structures (senate, regions and counties) must be directly elected by the voters—wanjiku
- Devolve Cost Effectively: Devolution should not be too costly as to consume all the resources meant for the development needs of the country.
- A two-tier devolution comprising of National Government and County governments, including metropolis, cities and urban areas to make devolution affordable to Kenyans.
- County governors and deputy governors should be directly elected by the voters, not electoral colleges.

Comments on Chapter 15: Public Finance

On public finance, the draft constitution

- Section 248 (1) gives no oversight role to the Ministry of Finance over devolved government in financial management exposing it to the risk of financial responsibility.
- Section 248 (2) assumes that there will be a minister specifically responsible for devolved governments.
- The role of the Ministry of Finance is unclear, therefore, jeopardizing the responsibility to oversee public financial management.
- Exhibits contradiction on taxation between the national government and county governments.
- Provides for devolved governments to raise loans for development or recurrent expenditure only in accordance with conditions determined by an Act of Parliament (section 254 (1)), although (2) prohibits devolved government from borrowing without first obtaining approval from its assembly.
- Undermines the stabilizing role of the Ministry of Finance in monetary, fiscal and micro-economic policy-making and implementation by:

- instituting a Resource Allocation Commission that worked in competition with Treasury;

o Creating a Controller of Budget as a constitution office above the ministry of finance.

- Section 244 (c) refers to “marginalized” communities in reference to disadvantaged sections of community. Section 258 (3) demands that the Minister introduce budgetary provisions for the development of marginalized areas, marginalized communities and marginalized groups. These groups are not identified.

- Section 258 (6) provides for an Economic and Social Council which does not existing in the main constitution.

Recommendations on Chapter 15: Public Finance

The draft constitution should:

- Clarify the matters of taxation.
- Desist from use of inappropriate language such as “marginalized” communities, marginalized groups and marginalized areas.
- Allow the Ministry of Finance to exercise oversight role over devolved governments;
- Ensure that all borrowing by devolved governments should be authorized by the Ministry of Finance.
- The Controller of Budget should be a non-constitutional office in the ministry of finance.
- An Economic and Social Council is not a constitution office, and should exist within treasury.
- Remove the office of Commission on revenue allocation.

Comments on Chapter 16: The Public Service

The chapter on public service,
- The values and principles in section 272 are already provided for in legislation or Public Service Charters or can be legislated by parliament. Many of them are not enforceable.
- There is no justification or rationale for the introduction of Section 275, which provides that a regional or county government is responsible for the recruitment, appointment, promotion, transfer and dismissal of members of its public service within standard norms provided by an act of parliament.
- This provision will deprive some remote and insecure regions of the ability to secure quality human resource currently provided centrally by the public service.
- It is likely to undermine national cohesion, national citizenship and entrench discrimination based on the origins of Kenyans.
- It is going to face resistance as the case of teachers has shown. As a contradiction, the chapter introduces section 277, which creates a nation-wide Teachers Service Commission.
- The chapter is riddled with activism, is angry in tone and full of alienating and divisive idioms and concepts such as “marginalized groups” (272 (k)). Read jointly, section 272 and 275 overly introduces ethnicity as the organizing concept of the functions of regional and county governments by its emphasis on “marginalized groups”, “ethnic groups”, and “minority groups”. The use of this language laid the seedbed for the 2008 post-election ethnic violence.

Recommendations on Chapter 16: The Public Service

The Chapter on the Public service should:

- Avoid repetition by limiting itself to values and principles which are not already in the Public Service Charter, and which are enforceable.
- Retain the Existing Public Service Commission, just like the TSC, but legislate concrete ways of addressing its weaknesses and of making it more efficient and inclusive of all Kenyans.
Be thoroughly revised to purge the activist, alienating, non-neutral and divisive language, concepts and tone.


Comments on Chapter 17: National Security

On national Security,
- Section 284 creates the Kenya Defence Forces (KDF) but makes no provision which makes members of the proposed KDF to serve at the pleasure of the president.
- Section 284 while creating three services (Kenya Army, Kenya Air Force and Kenya Navy) leaves out the AFC.
- No specific mandate given to the KDF, with section 281 (2) giving the primary object of national security as safeguarding the wellbeing of citizens, their property, rights and freedoms, sovereignty, peace and national integrity.
- Although section 285(1) allows the President to appoint the chief of KDF and Service Commanders on the advice of the Defence Council, it makes no provision for their removal or retirement.
- Section 54 potentially sows the seeds for instability in the forces by entrenching the right to assemble, demonstrate, picket and present petition and will be available to members of the proposed KDF.
- Section 60 also provides members of the KDF with the right to form trade union and stage strikes.
- Has several provisions to govern military disciplinary law but no provision for extra-territorial application.
- Does not make provision for the existence of auxiliary forces. In the event they have to exist, then they will be co-opted as branches of the Kenya Police Service but under the Inspector General of Police.

Recommendations on Chapter 17: National Security

The draft constitution should:
- Address all possible vacuums in service law before parliament makes new legislation relating to the armed forces.
- Provide a clear mandate to the KDF
- Remove the limits of the President as Commander-in-chief of the armed forces.
- Create clear provisions on removal or retirement of the chief of KDF and service commanders.
- Put the defence Council under the chain command to avert potentially conflicting orders or directives.
- The constitution elevates ethnicity and regional roots of service personnel into key considerations in promotions replacing merit, seniority, past record and competence.
- Put curbs on enjoyment of the bill or rights in entirety to avoid serious impediment of the command.
- South Africa’s recent experience with untrammelled application of the bill of rights to the armed forces should offer lessons for Kenya. Soldiers will be able to circumvent orders or decline deployment in pretext of going on strike.

Comments on Chapter 18: Commissions and Independent Offices

The Chapter on Commissions and Independent Offices,
- Provides no constitutional justification for the creation of the Commission on Revenue Allocation (Section 295 (2) (a)). The creation of Commissions should not be a constitutional issue. It should be provided for in statutes.
- Section 295 (b) provides for the Ethics and Anti-corruption Commission. However, ethics is not enforceable.
- Human rights are lumped together with Gender in the Human Rights and Gender Commission. The two are need to be separated.

Recommendations on Chapter 18: Commissions and Independent Offices

The Draft Constitution should:
- Delete ethics and leave only Anti-Corruption Commission.
- Split the Human Rights and Gender Commission to create:
- The Human Rights Commission;
- The Gender Commission’
- Remove the National Land Commission because the Minister of land has jurisdiction

Comments on Chapter 21: Transitional and Consequential Provisions
The chapter on transitional and consequential provisions:
- The current National Accord upon which the power sharing government is based ceases to operate when a new constitution comes into effect. After the referendum, parties to the National Accord can pull out of the accord, forcing a transition under the new constitution.
- The outcome of the referendum will shape the dynamics towards a new government.
- The potential of a people’s revolution is real.
- A leader who has finished two and half years will be deemed to have completed the whole term.

Recommendations on Chapter 21: Transitional and Consequential Provisions
On transition:
- The only clauses to be implemented should be those that directly facilitate the next general elections, including demarcation of boundaries and election management.
The rest should be deferred to a definite date after the next general election in 2012.

Appendix 1

Presented to the Committee of Experts in utmost good faith by the following political parties

Party Official Title Official Name Signature
ODM-Kenya
KANU


Party of National Unity (PNU)

NARC-Kenya
KADDU
UDM
DP
Safina
FORD KENYA
New Ford Kenya
Sisi Kwa Sisi
FORD PEOPLE