The Constitution of Kenya is the supreme law of the Republic of Kenya. There have been three significant versions of Kenya's constitution, with the most recent being the one promulgated in 2010.https://www.parliament.go.ke/sites/default/files/2017-05/The_Constitution_of_Kenya_2010.pdf The Constitution of Kenya The constitution was presented to the Attorney General of Kenya on 7 April 2010, officially published on 6 May 2010, and was subjected to a referendum on 4 August 2010."Kenya referendum date set", Daily Nation, 14 May 2010 The new Constitution was approved by 67% of Kenyan voters. The constitution was promulgated on 27 August 2010, marking an historic chapter in Kenya's governance."Institutional Reform in the New Constitution of Kenya", International Center for Transitional Justice (ICTJ)
The 2010 new constitution of Kenya enshrined power to the citizens of Kenya and fundamentally reshaped the country's governance landscape in several ways included the introduction of a devolved system of governance, Checks on Executive Power, Expanded Bill of Rights and Judicial Independence.
Constitutional reforms Constitutional reforms involving wholly new texts since gaining independence: in 1969 and in 2010. In 1969, the 1963 independence constitution was replaced with a new text that entrenched amendments already made to the system of government that the independence constitution had contemplated.See Preston Chitere, Ludeki Chweya, Japhet Masya, Arne Tostensen and Kamotho Waiganjo,"Kenya Constitutional Documents: A Comparative Analysis" Chr. Michelsen Institute, 2006, for a chronology of constitutional negotiations.
These changes included: changing the structure of the state from a federal, or Majimbo system, to a unitary system; creating a unicameral instead of bicameral legislature; changing from a parliamentary to a presidential system with a powerful presidency; and reducing the protections of the bill of rights. Further amendments to the 1969 constitution were later effected, including, in 1982, the institution of a de jure single party government.
The demand for a new constitution to replace the 1969 text with a more democratic system began in the early 1990s, with the end of the Cold War and democratic changes taking place elsewhere in Africa. The single party system was ended in 1991, and the first presidential election took place in 1992. Calls for a comprehensive review of the 1969 Constitution intensified in the late 1990s and early 2000s, helped by the victory of the opposition National Rainbow Coalition (NARC) party in the 2002 general elections. Official and civil society consultation processes led to the adoption of what became known as the "Bomas draft" constitution (after the location of the conference that adopted it).
However, substantial amendments were nonetheless made to this draft prior to a referendum in 2005, resulting in a split in the then ruling coalition. The Liberal Democratic Party faction of the government, led by the Late Raila Odinga, and supported by KANU led a successful 'No' vote against the amended Bomas Draft (called the Wako draft after the alleged mastermind of the changes). The review of the Constitution stalled and negotiations over the adoption of a new text seemed deadlocked. A deadlock only finally broken by the intervention of the African Union through a mediation team headed by Kofi Annan, following the outbreak of serious post-election violence in early 2008.
Drafting process for the 2010 Constitution
The Constitution of Kenya was the final document resulting from the revision of the Harmonized draft constitution of Kenya written by the Committee of Experts initially released to the public on 17 November 2009 so that the public could debate the document and then parliament could decide whether to subject it to a referendum in June 2010. The public was given 30 days to scrutinize the draft and forward proposals and amendments to their respective members of parliament, after which a revised draft was presented to the Parliamentary Committee on 8 January 2010. The Parliamentary Select Committee (PSC) revised the draft and returned the draft to the Committee of Experts who published a Proposed Constitution on 23 February 2010 that was presented to Parliament for final amendments if necessary.
After failing to incorporate over 150 amendments to the proposed constitution, parliament unanimously approved the proposed constitution on 1 April 2010. The proposed constitution was presented to the Attorney General of Kenya on 7 April 2010, officially published on 6 May 2010, and was subjected to a referendum on 4 August 2010. The new Constitution was approved by 67% of Kenyan voters.
Government structure The key changes proposed by the new constitution released are in the following areas:
Separation of Powers between the three arms of government i.e., executive, legislature and judiciary. The executive – who holds executive authority and the qualifications. The legislature – the composition, and representation of the people. An introduction of an upper house – the Senate. The judiciary – qualifications to hold office and appointment. Devolution – only two levels of Government: National and Counties. Citizenship – among other issues, gender discrimination was ended, and citizens who acquire foreign citizenship will not lose their Kenyan citizenship.
Gains achieved An advanced Bill of Rights that among other things recognizes socio-economic rights of Kenyan citizens. (Chapter Four). The removal of age limit of 35 years to run for president. New draft allows people to run as long as they are of adult age. Article 137(b) Right to recall legislators (senators and members of the National Assembly). (Article 104) Representation in elective bodies has to effectively meet a gender equity constitutional requirement, namely that no more than two-thirds of members shall be from either gender in its make up. Chapter 7, Article 81(b) Integrity Chapter, requires an independent ethics commission to will monitor compliance with integrity in all government institutions and make investigations, recommendations to the necessary authorities i.e. Attorney General and any other relevant authority.(Chapter Six) An advanced Human Rights and Equality Commission that will also have power to investigate and summon people involved in Human Rights abuses within the government and with the public. (Article 252) Equitable sharing of resources between the national government and the county governments through a resolution of Parliament. Chapter 12- Part 4. An Equalization Fund to improve basic access to basic needs of the marginalized communities. (Article 204). Any member of the public has a right to bring up a case against the government on the basis of infringement of Human Rights and the Bill of Rights – Article 23(1)(2). The courts and government institutions are bound to the Bill of Rights as per the constitution Article 2(1), Article 10(1). The Salaries and Remuneration Commission, an independent entity which has the power of regularly reviewing salaries of all state officers to ensure the compensation bill is fiscally sustainable. Article 230(5). Independence of the judiciary is affirmed Article 160. An Independent National Land Commission created to maintain oversight and manage all public land belonging to National and County Government and recommend policy on addressing complaints from public, advise the National government on ways of improving National and County land management, planning, dispute resolution. Article 67. Environmental Rights are recognized under Chapter 5 (Part 2) Freedom of media establishment from penalty on expression, by the state on any opinion and dissemination of media. Article 34. This is subject to Article 33.
The executive The executive at the top most levels will be constituted of a president, deputy president and the Cabinet.
Key functions of the president The key functions of the President of Kenya are as follows: Shall be the head of state and head of government of the Republic of Kenya. Shall not be a member of parliament Commander-in-Chief – and will declare war and state emergency upon approval by the National Assembly and Cabinet respectively. Head of Government – will wield executive authority and will co-ordinate and supervise all major sections of the executive branch. Shall nominate, appoint with prior approval of the national assembly, and dismiss Cabinet Secretaries. Preside over Cabinet meetings. Shall assent bills into law or refer them back to parliament for further review. Shall nominate, and after approval of Parliament, appoint a Chief Justice. Shall nominate, and after approval of Parliament, appoint an Attorney General Shall nominate, and after approval of Parliament, appoint a Director of Public prosecution. Shall appoint Judges to the Superior Court recommended to him/her by an independent Judiciary Service Commission. Shall appoint Ambassadors/High Commissioners to Kenyan embassies abroad.
The legislature The Legislative branch is multicameral and will constitute of the following.
An upper house – the Senate Source:
Each of the 47 counties will have a Senator A senator will be elected by the voters. Tentative total number of Senators will be 60. Presides over presidential impeachment hearings (article 145)
A lower house – the National Assembly Each constituency (290 the number gazetted by Independent Electoral and Boundaries Commission in October 2012). Majority of the Members of National Assembly will be directly elected by voters There will be a Women's Representative MP elected from each county – therefore guaranteeing a minimum of 47 women MPs in the National Assembly. Tentative total number of MPs will be 347. Votes to investigate and impeach the president (article 145)
County Assemblies and Executive The country will be divided to approximately 47 counties, Each county will have a County Executive headed by a county governor elected directly by the people and; A county assembly elected with representatives from wards within the county.
Judiciary
There will be three superior courts: Supreme Court – highest judiciary organ consisting of the Chief Justice, the Deputy Chief Justice and five other judges. This court will handle appeals from the Appeals and Constitutional courts. It will also preside over presidential impeachment proceedings. Court of Appeal – will handle appeal cases from the High Court and as prescribed by Parliament. It will constitute not less than 12 judges and will be headed by a president appointed by the chief justice.
An independent Judicial Service Commission has been set up to handle the appointment of judges. They will recommend a list of persons to be appointed as judges by the president (this article will be enforced after the transitional period). The commission will consist of the following: A Supreme Court judge – elected by members of the Supreme Court to chair the commission Court of Appeal judge – elected by members of the Court of Appeals to chair the commission The Attorney-General Two advocates, one a woman and one a man, each of whom has at least fifteen years' experience, nominated by the statutory body responsible for the professional regulation of advocates One person nominated by the Public Service Commission.
Attorney General
Shall be appointed by the president – with approval from the National Assembly Hold office for only one term of not more than 8 years (article 157(5)).
Devolution