FAQ

Parliament began debate on Proposed Constitution on a strong note, which could favour its passage without further amendments.

This means the country could be headed for governance by the set of laws proposed by Committee of Experts, some of which MPs initially resisted but deadlocked on how to change them.

There are three stages it must go through, the first being sailing through Parliament back to CoE for refinement, after which it is taken over by Attorney General.

The third step is the national referendum during which Kenyans will take a vote, and if it passes, it is promulgated into law.

But as it is now, the hurdles of drastic amendments by the political actors have been minimised. Barring surprise compromises by the political players, which could give any side the required 65 per cent to amend it, here below are the Frequently Asked Questions on the new Kenya taking shape:

QUESTION: What type of Executive will Kenya have?

ANSWER: Under the new law, Executive authority will be vested in the presidency. The president will, however, have to contend with a strong Parliament that will have powers to ratify or reject his decisions on key appointments.

QUESTION: What are the qualifications of a presidential candidate?

ANSWER: Must be a citizen by birth; must be qualified to run for MP; must be nominated by a party or run as an independent candidate.

Should be nominated by not less than 2,000 voters, more than half of the counties.

QUESTION: How is the president impeached?

ANSWER: Removal of the president can be initiated by an MP supported by at least a third of all the members on the grounds of gross violation of the constitution or any other law, and two, or out of serious reasons the president has committed a crime under national or international law.

The president can also be impeached for gross misconduct.

If the Motion is supported by at least two-thirds, the Speaker shall inform the Senate within two days, and the President continue in office pending the proceedings of the Senate, which shall decide his or her fate.

The president can choose to appear before the relevant committee of Senate on the case.

In the end the Senate shall vote on the impeachment charges. If two-thirds vote against him he or she shall cease being in office.

QUESTION: What does it say on swearing-in of new president?

ANSWER: The new president shall be sworn-in on the first Tuesday following (a) 14th day after that of declaring the results, but only if no petition will have been filed, and (b) on seventh day following that on which the court rules his or her election was valid.

The swearing-in ceremony must be in public.

QUESTION: Can a president under the new constitution be prosecuted under a treaty signed by Kenya, such as that which set up ICC?

ANSWER: Yes, the immunity of the president is to limited criminal and civil proceedings while in office, but does not include, "prosecution under any treaty to which Kenya is party, and which prohibits such immunity".

QUESTION: What about roadside declarations?

ANSWER: The President must put in writing and sign all major announcements and has them put under seal of office.

QUESTION: What does one need to know about the deputy president?

ANSWER: During campaigns those running for president will have to name their running mates who will automatically become deputy president and take over as president if the top office falls vacant mid-term.

QUESTION: Who qualifies to be a Cabinet minister?

ANSWER: The president will pick his Cabinet ministers from outside Parliament but the nominees will have to be approved by Parliament. An MP who is appointed a minister will have to relinquish his or her seat.

QUESTION: What does it take to recall your MP?

ANSWER: You have the right to recall your MP before the next election. However, Parliament will later, after this constitution is promulgated, "enact legislation on the grounds on which an MP may be recalled and procedures.

QUESTION: What does it take to run for MP?

ANSWER: An MP must be a registered voter, be nominated by a political party, or is an independent candidate who is supported by at least 1,000 registered voters in the constituency.

Will be disqualified if he or she has served a prison sentence of six months or have been found guilty of abuse of public office.

QUESTION: What does it take to run as senator?

ANSWER: Be supported by at least 2,000 registered voters. Will be disqualified if he or she has served a prison sentence of six months, or have been found guilty of abuse of office.

QUESTION: When will elections be held?

ANSWER: Presidential and parliamentary (National Assembly and Senate) elections will held on every second Tuesday of August every five years.

QUESTION: What will happen to the Grand Coalition?

ANSWER: All elections – presidential, parliamentary, senate and counties – shall be held within 60 days after the end of the current Parliament.

If Parliament is dissolved before 2012 and elections, those of the counties will be held in 2012, but all others under the new constitution.

QUESTION: When will the new constitution take effect if passed?

ANSWER: The new constitution shall come into force on its promulgation by the President or automatically on the expiry of 14 days from the date of publication in gazette of the final results of the referendum ratifying it.

QUESTION: Can retired President Moi and President Kibaki run again?

ANSWER: No, a person who was elected President under the old constitution cannot stand as president under the new constitution. It is silent on whether they can stand for parliamentary elections.

Will the President consult the Prime Minister on major decisions during transition from the current to the new constitution?

The President is compelled to adhere to the National Accord and Reconciliation Act 2008 that he consults the PM on appointments to fill vacancies rendered vacant by the new constitution. They include the AG’s, Chief Justice, Chief Government Prosecutor, Police Commissioner, Controller of Budget and Auditor/General.

QUESTION: What type of Parliament will Kenya have?

ANSWER: According to the proposed law, Parliament will comprise of the National Assembly and the Senate.

The National Assembly, with a membership of 349 MPs, will have roles similar to its current functions.

Out of the 349 MPs, 290 will be elected from constituencies. There will be 47 women elected by counties and 12 nominated MPs to represent special interests.

QUESTION: What role does it propose for the Senate?

ANSWER: The Senate represents the counties, and serves to protect the interests of the counties and their governments. The senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties, as provided in Articles 109 to 113.

The senate determines the allocation of national revenue among counties, as provided in Article 216, and exercises oversight over national revenue allocated to the county governments. The senate participates in the oversight of State officers by considering and determining any resolution to remove the president or deputy president from office in accordance with Article 145. The resolution to remove president and the deputy will originate from the National Assembly.

QUESTION: What happens to judges and magistrates?

ANSWER: Parliament will enact legislation establishing mechanisms and procedures for vetting suitability of all judges and magistrates.

A removal or process leading to removal of judges shall not be challenged by court.

The Chief Justice will leave office within six months after the new constitution takes effect. He may retire or face vetting.

QUESTION: What will be the structure of the county governments?

ANSWER: Each county will have its own government that will consist of a County Assembly and a County Executive. County Asembly shall consist of members elected by the registered voters of the wards. Each ward will elect one member to the assembly on the same day as the election of Members of Parliament.

There will also be special seats for marginalsied groups, including persons with disabilities and youth as prescribed by an Act of Parliament.

Not more than two-thirds of the members should be of the same gender. The county assembly’s term is five years.