CONSTITUTION AND CONSTITUTION MAKING NOTES

CONSTITUTION AND CONSTITUTION MAKING.

Meaning of constitution.

It’s a set of principles and rules which states how a country is governed, its organization and aspirations and establishes the structure of government and distributes of power among various arms of government.

It also spells out the rights of the citizens as well as their responsibilities and duties in relation to the state.

Types of constitutions.

Written or unwritten                                           

Written constitutions.

It’s where the fundamental principles and rules of the state are contain in one document.

Its prepared by a designated body then enacted and adopted through a clearly defined procedure like the American constitution that was written in 1789 and enacted in 1789.

Advantages of written constitution.

• The document is readily available for reference in times of crisis.
• It’s rigid and not prone to tampering with.
• It is clear and definite in addressing various issues.
• It clearly outlines the powers, terms, relations and duties of different organs of government, ensuring they don’t come into conflict with each other.
• It helps to promote national unity in a country.
• It helps in safeguarding the interests and rights of minority groups.

Disadvantages.

• It sometimes fails to respond to emerging issue due to its rigidness.
• The procedure of amendment is slow and cause delays which could lead to civil disorder
• Some are detailed and rarely understood by ordinary citizens.
• It tends to make judiciary too powerful as it is the organ that interprets the document.

Unwritten constitution.

It’s where fundamental principles and rules of a state are not contained in a single document but are drawn from various sources.

Examples of unwritten documents.

Constitutional milestone: like magna carte (1215) this was agreed between king john and the nobility that guaranteed certain privileges for all Englishmen.

Legislation: These are part of the fundamental principles of the state and contribute to its aspirations like.

1. The petition of right act (1628) that prevented the state from raising taxes without the consent of parliament.
2. The habeas corpus act (1679) that established the right of prisoners to an immediate trial.
3. The bill of rights act (1689) that limited the power of the monarchy.
4. The act of settlement (1701) that granted independency to the judiciary.
5. The act of union (1707) that united the parliament of Scotland and England.
6. The parliament acts (1911, 1949) that limited the powers of the House of Lords to delay legislation.
7. Parliamentary act (1918, 1928) that allowed women to vote.
8. The peerage act (1963) that prohibited discrimination on the basis of race, colour or ethnic origin.
9. Representation of the people act (1969) that lowered the voting age to eighteen.

Case law: this refers to specific rulings made by the British courts that have had an impact on the principles of the state.

Parliamentary customs: These are traditions, customs and rules of British parliament form part of constitution and are contained in the hansard.

Commentaries: these are the writings, opinions and assertions of respected scholars.

Constitutional conventions: these are political traditions or agreements which have been followed or applied over a period of time.

Advantages of unwritten constitution.

• They are simple to amend as they are altered like ordinary law.
• They are acceptable due to its home-grown.
• They are flexible and easily adoptable to prevailing situations in the state.

Disadvantages of unwritten constitution.

• It tends to be indefinite and imprecise in comparison to the written ones.
• The ease and simplicity with which such constitutions can be amended leaves them open to manipulation by the legislator.
• Too much power is given to the judiciary that has responsibility of interpreting the constitution.
• It does not guarantee sufficient protection of the rights of citizens.
• It tends to overload the judiciary as they look for constitutional principles not only in judicial decisions but in statutes.

Characteristics of a good constitution.

• It must define its content clearly.
• Comprehensive so as to cover all aspects of government.
• Able to protect the fundamental rights and freedoms of the citizens.
• Durable and elastic.

Constitution making.

The independence constitution was not made directly by the people. It was negotiated in London at Lancaster house between the British government and representatives of Kenya’s political parties who were members of the legislative council.

Since independence many amendments to the constitution have been done.

The interparties parliamentary group. (IPPG)

The parliament formed a forum as part of constitution changes in august 1997, this forum agreed on limited reforms to ensure free and fair general elections in 1997.

Constitution of Kenya review act.

This was passed in 1997.

It was to provide a legislative framework, structure and vision of the constitution review process after the 1997 elections.

The act, however did not satisfy all, stakeholders held a series of meetings in 1998 at bomas of Kenya and at safari park hotel in Nairobi to try and find a consensus which lead to amendment of the act in 1998.

The major parties did not agree on the nomination of the members to the constitution of Kenya review commission. (CKRC)

This led to establishment of two parallel review processes, one, the CKRC appointed by the parliament and the president under the review act and the other led by a coalition of religious and civil organisation, with support of political parties.

This was called ufungamano initiative held in ufungamano house, to avoid stalemate, negotiations were held between November 2000 and May 2001, resulting in the amendment of the review act may 2001.

The 2001 act established a number of organs to guide the review process like.

• The constitution of Kenya review commission.(CKRC)
• The constituency constitutional forum.(CCF).
• The referendum.
• The national assembly.

The constitution of Kenya review commission.

• It had 29 commissioners nominated by the national assembly and pointed by the president.
• Its main function was to facilitate the comprehensive review of constitution by the people of Kenya.
• It was chaired by professor yash pal ghai.

Constituency constitutional forum.

• It was based at every constituency.
• It was to collect and debate the views of the members of the public.

The national constitutional conference.

• It was to debate, amend and adopt the draft constitution.
• It had 629 members as shown below:
• 222 members of national assembly.
• 210 representatives of districts elected by county councils.
• 29 members of the CKRC.
• 42 members representing political parties.
• 125 representatives of religious, professional womens group, trade unions and other non-governmental organisations.
• It discussed the views of the people and came up with a draft constitution, famously known as bomas draft.

The referendum.

It provided for a referendum to be held within one month if there was no consensus on any issue during the national constitution conference.

The national assembly.

The act empowered the national assembly as the sole body to enact the bill to change the constitution.

Once the NCC had adopted the draft bill and the people had approved it at the referendum, the CKRC would prepare the final draft bill to be presented to the attorney general for tabling before the national assembly which will enact the bill under the parliamentary select committee.

Reconvening of the national constitutional conference.

The national constitution conference was reconvened after the 2002 elections.

In march 2004, the conference adopted the draft constitution, however professor yash pal ghai was stopped by the court from presenting the draft to the attorney general for tabling in parliament.

The parliament went ahead and revised the draft in naivasha and kilifi. These came up with a draft which was harmonised by the attorney general. It was called wako draft which was presented to a referendum in 2005 and majority of Kenyans rejected it.

The committee of experts.

• The constitution of Kenya review bill was passed in 2008; it established a committee of experts headed by nzamba kitonga. Its mandate was to:
• Harmonise the previous draft constitution and come up with an agreeable document.
• Conduct civic education on the proposed new constitution.
• Organise national discussion of draft constitution.
• On completion of its work the committee of experts presented their draft to the parliamentary select committee which tabled it in parliament.
• The draft was then published by the attorney general on 6^th may, 2010.
• It was subject to a referendum on 4^th august, 2010 and passed overwhelmingly.

Promulgation.

It was promulgated by the president on 27^th august, 2010. This means being adopted and made effective.

Amendment to the constitution.

The constitution provides two ways through which it can be amended. There are:

Amendment by parliamentary initiative.

A bill is introduced in both house the senate and parliament.

If the bill is passed, the speakers of the two houses submit it to the president for assent.

Amendment by popular initiative.

• A proposal to amend the constitution may be signed by at list 1 million registered voters in form of general suggestion.
• The initiative is delivered to the independent electoral and boundaries commission to verify the list of voters and submit it to the county assemblies.
• If the draft bill is approved by a majority of the county assemblies, it is introduced in parliament.
• If passed by parliament, the bill is presented to the president for assent.
• If either house or parliament fails to pass the bill, the proposed amendment is subjected to a referendum.

Aspects of the independence constitution of Kenya.

This involved decolonisation of Kenya. Kenya gain internal self-governance on 1^st June, 1963 where the main characteristics of the new constitution were a Westminster government with a federal or majimbo system.

1. The executive.

The head of the state was the governor- general acting on behalf of the queen. He enjoyed wide ranging powers concerning internal, security and foreign affairs: in addition, he could vote legislation.

The government of Kenya was headed by the prime minister, appointed by the governor-general. The prime minister was to be chosen from among the members of the House of Representatives and was expected to enjoy the support of majority of the members.

• The legislature.

There were two houses the senate and national assembly who did the legislative work.

The House of Representatives had 112 directly elected members, representing constituencies and served for five years.

The senate or upper house comprised of 41 directly elected members, each representing a district and one for Nairobi.

• The judiciary.

The constitution established an independent judiciary, according to the judges and the attorney-general security of tenure.

• Federalism.

Kenya was divided into seven regions, each of which had its own legislative and executive structures.

• Rights and freedoms.

There was a section that spelt out the right and freedoms of all of the Kenya’s citizens i.e. a bill of rights.

• Citizenship.

Members of all the indigenous Kenyan communities were entitled to Kenyan citizenship, as were specific members of the migrant communities, especially the European and Asian.

It also spelt out the necessary conditions for the acquisition of citizenship.

• Democracy.

It provided for multi-party democracy in Kenya.

The issue of independent electoral commission and competitive electoral process.

Constitutional changes since independence up august 2010.

Changes in the legislature.

• 1965.
• If a member of parliament is sentenced to prison term of six or more months he would lose his seat.
• A Member of Parliament who missed eight consecutive parliamentary meetings without the speaker’s permission would lose his seat.
• 1966.
• A member who resigned from the party that sponsored him to parliament was to vacate his or her seat.
• The bicameral legislature, were merged, establishing a unicameral legislature called the national assembly.
• All candidates vying for an election were to be nominated by a political party.
• The 12 specially elected members were substituted with 12 members nominated by the president.
• 1975.
• English and Kiswahili were used as a means of communication.
• 1982.
• Section 2A of the constitution was amended.
• 1986.
• The number of parliamentary constituencies was raised to a maximum of 188.
• 1991.
• Section 2A was repealed making Kenya a multi-party state.
• The number of parliamentary constituencies was fixed at a maximum of 210.
• 1997.
• The power to appoint nominated members of the national assembly was passed to the political parties.
• 2010.
• Members of parliament were increased from 210 to 290.
• Bicameral legislature was introduced.
• County assemblies were introduced in the counties to pass legislations.

Changes in the executive.

• 1964.

The post of executive president who was the head of state and government was created.

The position of the prime minister and governor-general was abolished.

• 1966.

The public security act was passed, allowing the president special emergency powers such as detaining people without trial.

President elected directly by all voters.

The vice- president would act for 90 days in case a vacancy in the office of the president.

• 1969.

All members of electoral commission members were appointed by the president.

• 1975.

President was allowed to pardon election offenders.

• 1979.

Public servants who desired to vie for positions in general elections were required to resign six months before the general elections.

• 1982.

The position of chief secretary as the head of civil service was created.

• 1985.

Membership to the public service commission was increased from 7 to 17 members.

• 1986.

The security of tenure of the offices of attorney-general, controller and auditor-general was lifted.

Chief Secretary Position was abolished.

• 1990.

The security of tenure attorney-general, controller and auditor-general was restored.

• 1992.

The presidential term of office was limited to two.

• 1997.

The number of electoral commissioner was increased to 24.

Detention without trial was abolished.

Public order act was amended to allow meetings without seeking permission from the police.

The chiefs’ act was amended, limiting the chief’s power to arrest people, compel attendance at barazas and procure labour.

• 2008.

National accord created the position of prime minister and two deputy prime minister.

A coalition government was created and president to share power with the prime minister.

Presidential appointments were to be made in consultations with the prime minister.

• 2010.

Devolution of power through creation of county governments.

The position of deputy president was created.

Position of cabinet ministers was renamed to cabinet secretaries was set to a minimum of 14 and a maximum of 22.

Cabinet secretaries were not to be members of parliament.

All presidential appointments were to be approved by the national assembly.

Changes in the judiciary.

• 1965.

The title of the Supreme Court was changed to the high court.

• 1977.

The Kenya court of appeal was established to replace the east Africa court of appeal which had collapsed along with the east African community.

• 1985.

The high court became the highest court of appeal for election petition.

• 1986.

All capital offences were made non-bailable.

• 1988.

The period of detention before charging criminals was increased from 24 hours to 14 days.

The security of tenure of the judges was removed.

• 1990.

The security of tenure of the judges was restored.

• 2010.

The Supreme Court was established as the highest court.

The position of deputy chief justice was created.

The judiciary service commission was reconstituted to include representatives of the public,judges,magistrates and the public service commission.

Appointment of the chief justice was to be made by the president with recommendation of the judicial commission and subject to the approval of the national assembly.

Changes in citizenship.

• 1986.

Section 89 of the constitution that provided for the acquisition of citizenship by everyone born in Kenya after December 1983, was repealed.

• 2010.

Dual citizenship was introduced.

Citizens of the countries applying to be Kenyan citizens were not required to renounce their citizenship.

. Changes in communication.

• 1997.

Kenya broadcasting corporation act was amended to compel KCB to give fair coverage to all political parties.

The film and stage plays act was repealed hence licensing of stage plays abolished.

• 2000.

The communication commission of Kenya act was passed which allowed the establishment of more radio and television stations. Mobile phone companies were also allowed to operate.

Changes in electoral laws.

• 2008.

Electoral commission of Kenya was replaced by interim independent electoral commission.

The interim independent boundaries commission was established to review electoral and administrative boundaries.

• 2010.

The independent electoral and boundaries commission was established.

Features of the constitution of Kenya.

The Kenya constitution is a written constitution. It has 264 articles which are divided into 18 chapters.

1. Sovereignty of the people and supremacy of the constitution.

The constitution is the supreme law of the republic which binds all persons and all state organs at national and county levels.

• The republic.

Kenya is a democratic state with multi-party.

• Citizenship.

It outlines the entitlement of citizens, retention and acquisition of citizens and states how citizens may be revoked.

• Bill of rights.

it contains the rights and fundamental freedoms of the citizens.

• Land and environment.

It outlines the principles of land policy, provides a classification of land and establishes a national land commission.

It gives the obligations of the state in respect of the environment and national resources.

• Leadership and integrity.

It stated the responsibilities. Conduct, financial, probity and restrictions on activities of state officers.

• Representation of people.

It outlines the general principles of the electoral system and process. Like:

• Legislation on election.
• Voter registration.
• Code of conduct for candidates.
• Voting process.
• Mechanism of dealing with electoral disputes.

It also establishes the independent electoral and boundaries commission and provides for 290 constituencies for election of members to the national assembly. It regulates the establishment of political parties.

• Legislature.

It established the bi-cameral legislature.

It touches on:

• Composition and membership of parliament.
• Qualifications for election as a member of parliament.
• Representation of marginalised groups.
• Election of members of parliament.
• Clerks and staff of parliament.
• Terms of parliament.
• Vacation of office of Member of Parliament.
• Parliament’s general procedures and rules.
• Bills concerning county government.
• Officers of parliaments.
• Right to recall.
• Procedure for enacting legislation.
• The executive.

It has the president, deputy president and cabinet.

The president is the head of state and government.

• Judiciary.

It creates and independent judiciary.

It has system of courts with superior courts and sub-ordinate courts.

The superior courts are the Supreme Court, the high court and the court of appeal.

Subordinate courts are the magistrate and kadhis court.

There is the judicial service commission and the judiciary fund.

• Devolution.

It’s the sharing of power between the national and county government.

• Public finance.

There is equitable sharing of national revenue.

There is an equalisation fund, consolidation fund and revenue funds for county government.

There is a commission on revenue allocation and a central bank.

• National security.

There is establishment of a public service commission and teachers service commission.

The values and principles of public service are outlined.

• National security.

The Kenya defence forces.

The national intelligence service.

The national police.

There is also the Security Council.

• Commissions and independent offices.

These are established constitutional commissions like judicial service commission, national police service commission and national land commission.

Independent offices are also established, e.g. auditor-general and controller of budget.

• Amendment of the constitution.

Amendment by parliamentary initiative.

Amendment by popular initiative.

• General provision.

Mechanism for enforcement and interpretation of the constitution.

• Transitional and consequential provisions.

Outlines the legislations required to effect the constitution and gives the transitional and consequential provisions.