Kenya’s new Constitution was promulgated on August 27, 2010. The Constitution encompasses a wide range of reforms that promise to ensure a free and just democracy in Kenya. The new Constitution:
1. Establishes Measures to Curb Corruption
A number of provisions in the constitution decentralize the government and allow for stronger checks and balances to curb corruption.
- For example, the constitution deepens the separation of executive and legislative branches by making Parliament more accountable, increasing scrutiny over state finances, prohibiting MPs from serving as cabinet ministers, and allowing Parliament to exercise truly independent oversight of the executive branch.
- Facts 2 and 3 also support the initiative to curb corruption.
2. Increases the Independence of the Three Branches of Government
The constitution embraces the principle of separation of powers. Specifically, the constitution:
- adds a Senator for each region of Kenya so that each of the 47 counties will have a Senator;
- adds a lower house for each constituency of Kenya: there are currently 210 constituencies and the majority of members of the Assembly will be directly voted for by the people of Kenya; and
- gives Parliament the ability to review presidential judiciary nominees and cabinet appointees.
3. Constrains the Power of the Executive Branch
The constitution establishes a system of checks and balances that will serve to constrain the power of the executive branch. The constitution specifically:
- gives Parliament the power to remove the president through a vote of “no confidence;”
- requires that cabinet ministers appointed by the president be approved by the Parliament;
- establishes term limits for the president who would be limited to a maximum of two five-year terms; and
- eliminates the position of Prime Minister.
4. Decentralizes the Government
Through the granting of increased power and autonomy by the national government to counties, the constitution will devolve power closer to the people. It will also make political power more diffuse by dismantling one center of power for which all candidates compete, thereby preventing one ethnic clan or group from dominating the country. This should help curb the political violence that has stemmed from “winner-takes-all” elections.
- The proposed constitution establishes counties that replace districts.
• There will be 47 counties and each county government will have an executive committee led by governor and a deputy governor who may not serve more than two terms.
• The executive committee (the governor and deputy) will implement the county and national laws. It may also propose legislation and prepare reports to the assembly on any issue relating to the county.
• County governments will handle matters relating to agriculture, health services, infrastructure such as roads and street lighting, and deal with social ills, among other functions. Since it will be required to handle its own development needs, the county government can collect levies, license and permit fees to raise funds. However, only the national government has the powers to impose income tax, value-added tax, customs duties and excise tax.
- This form of devolution is intended to achieve various political, social and economic goals by:
• enhancing the quality and practice of democracy;
• bringing power closer to the people and increasing arenas of participation and policy-making;
• enabling greater responsiveness to local needs and opportunities;
• establishing new centers of economic growth and breaking the stranglehold of Nairobi;
• achieving the recognition of cultural diversity; and
• promoting the more equal and equitable development of regions and counties.
5. Creates a Supreme Court for the first time
- Under the new constitution, there will be two superior courts:
• The Supreme Court will be the highest judiciary organ comprising of five judges with one acting as the Chief Justice. This court will handle appeals relating to constitutional matters and matters of general public importance from the Appeals court. It will also preside over Presidential impeachment proceedings.
• The Court of Appeals will handle appeal cases from the High Court and as prescribed by Parliament. It will constitute no less than 12 judges and will be headed by a Chief Justice appointed by the President.
- There will also be subordinate courts – the Muslim khadis’ courts, magistrate courts, and court martial.
- The president will appoint judges, recommended by a judicial service commission for approval by parliament.
6. Introduces a Bill of Rights that addresses basic human needs and aims to protect human rights
- The 26-article bill includes such progressive provisions as:
• equality and freedom from discrimination;
i. This article explicitly states that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
ii. Furthermore, this article states that the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth.
• a prohibition against slavery, servitude, and forced labor;
• freedom of conscience, religion, belief and opinion;
• the right to a fair and speedy public trial; and
• freedom of the media.
i. This article explicitly states that the State shall not exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or penalize any person for any opinion or view or the content of any broadcast, publication or dissemination.
7. Protects marginalized groups
- The draft constitution includes a specific provision under the second article of the Bill of Rights ensuring women’s right to equal treatment.
• The constitution lays out steps for affirmative action, for example providing for 1/3 women on government boards and county assemblies.
- It also contains a provision for Muslim khadis’ courts.
• Despite Kenya’s separation of church and state, Muslims will be allowed to try minor civil cases (divorce, inheritance disputes, etc.) under Islamic sharia law in traditional khadis’ courts.
8. Allows Kenyans to enjoy dual citizenship
Under present law, applying for citizenship in another country results in the loss of one’s Kenyan citizenship. The draft constitution allows for dual citizenship. A native Kenyan will not lose citizenship by becoming one of another country and anyone who has lost it will be entitled to re-acquire it.
- Citizenship will also be able to be acquired by marriage to a citizen for seven years or by living in Kenya for seven years.
9. Guarantees equal and fair use of national resources
The proposed constitution ensures tax revenues will be more fairly distributed between the national government and
- County governments will receive and share at least 15 percent of revenue raised by the state. Another 0.5 percent will go to an equalization fund for the government to use to provide services to marginalized communities for the next 20 years.
- A commission on revenue allocation formed by the president will recommend how much each county receives out of the national government’s revenues and the senate would vote every five years on resolutions about sharing resources among counties.
- There will be a system of tax separation – county governments would collect property, entertainment and other taxes approved by Parliament, while only the national government will collect income tax, customs, excise and value added taxes.
- County finance: county government may take loans if their assemblies approve, but only if the national government guarantees the loan. Parliament may approve bailout of non-functioning county governments and the county government must operate sound financial systems prescribed by national government.
10. Strengthens women’s rights
The draft constitution allows for stronger women rights by:
- including a specific provision under the second article of the Bill of Rights ensuring women’s right to equal treatment;
- allowing for abortion when maternal health is endangered. Abortion is illegal in Kenya, but the proposed constitution will make an explicit exception for cases in which the mother’s health is in jeopardy; and
- establishing a requirement that each county assembly will also elect a woman MP, ensuring that there are at least 47 female MP’s in the National Assembly.