New Constitution Will Be in Force on 21st August

Tom Kagwe
11 August 2010

--------------------------------------------------------------------------- opinion

After the official announcement by the Presidential Press Service that the Proposed Constitution of Kenya, shall be promulgated by the President on 27th August, there are legal, political and technical matters that are worth commenting on.

First, what actually that 'ceremony' (the promulgation) will signify from legal and political points of view.

And second, from a technical standpoint, whether that 'ceremony' is the one that brings the New Constitution, (read, the Constitution of Kenya, 2010) into operation.

By definition, promulgation is the act of formally announcing or declaring a new statutory or administrative law as having effect. In our case, we are not dealing with an ordinary law but the Proposed Constitution, which seeks to dethrone the Constitution of Kenya (as amended, 2008).

In our context, the approval was done when Kenyans ratified the Proposed Constitution in the referendum.

Announcement of the ratification was done by the Chair of the Interim Independent Electoral Commission (IIEC) on 5th August, at Bomas of Kenya.

This was followed by the official publication of the results in the Kenya Gazette on Friday 6th August 2010, as required by Section 43(1) of the Constitution of Kenya Review Act (No. 9 of 2008).

For the Proposed Constitution to become operational, Article 263 provides: "this Constitution shall come into force on its promulgation by the President or on the expiry of a period of fourteen days from the date of the publication in the Gazette of the final result of the referendum ratifying this Constitution, whichever is the earlier." Article 260 defines "effective date" as the date that the Proposed Constitution comes into force.

From the foregoing, and according to the Review Act, fourteen (14) days, shall expire on 20th August at the stroke of midnight.

This is so because the Review Act counts all days including Saturdays and Sundays.

And since no one, so far, has challenged the results of the referendum (using Section 44(1) of the Review Act), the days are counting.

And therefore, on Saturday 21st August, the New Constitution, (read, the Constitution of Kenya, 2010), shall have the full force of law.

This is, technically and legally, the "effective date" as defined by Article 260, read together with Article 263.

In this case therefore, the Presidential 'ceremony' of promulgation will literally be, as provided in the Review Act, an act of public pronouncement; or more legally, a proclamation, not the legal "effective date" of the New Constitution, (read, the Constitution of Kenya, 2010).

A proclamation is to make public by announcement. It is an official declaration.

And therefore, President Kibaki will not be bringing the New Constitution (read, the Constitution of Kenya, 2010) into operation, since it will be already in force.

That is, the President's 'event' will be symbolic, since we shall be done within and under the framework of the New Constitution, (read, the Constitution of Kenya, 2010).

The writer is the acting deputy executive director, Kenya Human Rights Commission.