Position on the Proposed Constitution of Kenya
POSITION ON THE PROPOSED CONSTITUTION OF KENYA
The Kenya Human Rights Commission (KHRC) is a national, non-governmental organisation founded in 1992, whose vision is to entrench human rights and democratic values in Kenya. Since its formation, the KHRC has been an advocate of constitutional reform and at the forefront of efforts to designing a human rights-based and people-centred Constitution.
In 2009, the KHRC was selected to be part of the Reference Group to assist the Committee of Experts (CoE) in the drafting the Proposed Constitution of Kenya (PCK). As part of the Reference Group, we were privy to the deliberations and debates on the 'contentious issues' raised by the CoE as well as other issues of concern from various sectors in the country.
The PCK has now been published by the Attorney General and is waiting to be passed or rejected at the Referendum in August 2010.
General Observations
The PCK, though not fully in line with our demands, is irrefutably an improvement on the current Constitution. The PCK embodies fundamental principles necessary for the realisation of accountability within the Government of Kenya (GoK), including:
• The principle of popular sovereignty which provides that all sovereign authority vests in the people, that the people are the only source of government authority and, therefore, that the GoK has only the authority that the people have given to it;
• The principle of separation of powers which ensures that each of the three arms of government is free from undue influence from the two other arms to enable the independent execution of their respective functions;
• The principle of checks and balances that ensures that each of the three arms of government is capable of checking actual or potential excesses of any of the other two arms;
• The principle of constitutionalism which promotes adherence to and respect for rule of law as opposed to rule by the arbitrary judgment or whim of public officials. It requires that all government actions and activities be limited by the Constitution;
• The principle of judicial review which gives the judiciary the power to determine whether actions taken by the government are in consistent with or in violation of the Constitution, and to declare any such actions unconstitutional, illegal, null, and void;
• The principle of devolution where certain powers are devolved from the central government to smaller units so as to providing people in these smaller units with more freedom to govern themselves;
• The principles of public service and professionalism with requirements that holders of public office be properly qualified professionals of unquestionable integrity who must exercise their offices in the best interest of the public;
• The promotion of the fundamental rights and freedoms of every individual with specific provisions setting out fundamental freedoms and political and socio-economic rights, as well as the precise extents to which they are protected.
For these reasons, the KHRC hereby affirms its position in favour of the PCK, realising that the document, though not perfect, stands head and shoulders above the current Constitution.
The KHRC has, in monitoring the constitutional review process, observed voices of dissent against the PCK. The antagonists are in two camps – one made up of politicians who oppose the PCK particularly on provisions relating to the equitable and sustainable use of land, the other comprising the heads some religious institutions who oppose the PCK’s provisions on the right to life and maintaining the Khadis' courts.
The KHRC, while respecting the right of these camps to dissent, object to their arguments on the basis of the methods they are using to spread dissent. The two dissenting camps have engaged in a campaign of deception, dis- and misinformation and fear- and hate-mongering to induce a vote against the PCK. This is troubling. We need only look back to 2007-8 to remind ourselves of what manufactured fear and hate can result in. Fear and hate are the trusted weapons of choice for those who would have us abandon common sense and reason so as to do their bidding.
The politicians berating the provisions on land, for instance, have advanced the position that the PCK will allow the government to arbitrarily deprive individuals of land they legally and legitimately own. This is a lie with no basis in fact whatsoever and goes counter to what the PCK states in Article 40 (2) within the Bill of Rights, which explicitly states that:
Parliament shall not enact a law that permits the State or any person
a) to arbitrarily deprive a person of property of any description or any interest in, or
right over any property of any description; or
b) to limit, or in any way restrict the enjoyment of any right under this Article on the
basis of any grounds specified or contemplated in Article 27 (4).
The KHRC reminds all Kenyans that the PCK includes many undisputed gains for the people of this country, including:
• An assertion of the sovereignty of the people of Kenya and the supremacy of the Constitution (Article 1);
• Clear provisions regarding citizenship, including women’s full citizenship as well as dual citizenship (Chapter 3);
• Provisions on national values and principles of governance (Article 10);
• Guarantees of political rights including for the first time, Freedom of the Media (Article 34) and Access to Information (Article 35);
• Clear provisions, for the first time, on socio-economic rights, particularly the rights to health, housing and social security, among others (Article 43);
• Clear provisions regarding leadership and integrity to ensure accountable and quality leadership (Chapter 6);
• Clear provisions enhancing the representation of women and persons with disabilities (Articles 97 and 98);
• Clear separation of powers between the Executive and the Legislature (Chapters 8 and 9);
• The requirement that Cabinet Ministers shall not be Members of Parliament (Article 152 (3)) which boosts the separation of powers between the Executive and Legislature;
• A reduction of the size of cabinet to between 14 and 22 posts (Article I52 (1) (d));
• The right to recall non-performing Members of Parliament (Article 104);
• The right of Kenyans to petition parliament to enact, amend or repeal any legislation, including Constitutional amendments (Article 119);
• Provisions for a Commission on Revenue Allocation to ensure that resources are shared equitably in Kenya (Article 216).
It is of primary importance that each man, each woman, each citizen arise and seize the power that is our birthright—the power to determine our individual and collective destinies. The exercise of this power requires every citizen to educate her/himself and base her/his decision on facts. The KHRC therefore asks that each citizen read the PCK for her/himself and weigh the pros and cons of it against our current Constitution.
The KHRC also urges each citizen to vote and, in particular, to give the PCK a yes vote to welcome into Kenya a new way of life for us all.
