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Published on Sunday 4th April 2010

The draft constitution passed by Parliament on Thursday will change the face of Kenya by introducing the most far-reaching institutional reforms the nation has seen since independence.

If a majority of voters say 'Yes' at the referendum, Kenyans will wake up to a new nation in which the powers of the President will be severely limited, women's rights are guaranteed and systems of land use and management radically changed to ensure equity.

The Constitution will overhaul the Judiciary, restructure the police force and write into law the socio-economic rights of all individuals as part of a Bill of Rights which has been described as one of the most progressive on the continent outside South Africa.

In the new Kenya, MPs will pay taxes, the number of ministers will be reduced by half and voters will be able to recall MPs who fail to discharge their duties properly.

Ahead of referendum

These are some of the changes lawmakers agreed to when they approved the draft constitution, which is expected to be submitted to Attorney-General Amos Wako for publication ahead of a referendum expected on July 2.

An analysis of the draft by the Sunday Nation indicates it will alter the architecture of the State permanently, paving the way for many changes that were proposed by the Judicial Commission of Inquiry into Post Election Violence headed by Mr Justice Philip Waki.

Provisions aimed at preventing a return to the killings which followed the last General Election spring from almost every page of the proposed draft.

To address inequality, the system of devolution to be implemented will see at least 15 per cent of national revenue sent directly to the counties, giving wananchi and local leaders far greater authority in managing resources.

Checks and balances

The objective of this change, the draft says in Section 174 (h), is to "facilitate the decentralisation of state organs, their functions and services, from the capital of Kenya and to enhance checks and balances and the separation of powers".

Calculated against the revenues in the 2008/2009 financial year when the Kenya Revenue Authority collected Sh480.6 billion, it means counties would get a minimum of Sh72 billion for local use this year if the draft constitution was the law of the land.

To protect the rights of minorities, a Senate will be formed to act as the Upper House of Parliament. No Bill affecting counties may come into law without the Senate's approval, a provision designed to shield against reversal of the objects of devolution in the draft.

The draft makes provisions to improve service delivery in marginalised areas in measures designed to tackle a sense of exclusion which the Waki commission said contributed to the fighting in 2007/2008 that resulted in about 1,300 deaths, more than 900 acts of documented rapes and sexual violence, approximately 350,000 displaced persons, and 3,561 reported acts of serious injury.

The draft will see the creation of an Equalisation Fund, which will send 0.5 per cent of annual revenue to marginalised communities.

Equalisation fund

This would have given these areas Sh2.4 billion from the 2008/2009 revenue collection. The fund is expected to lapse 20 years after the Constitution comes into force, although it may be expanded by Parliament and the Senate.

Under the new constitutional order, the President will find his powers to exercise political patronage severely diminished. The Cabinet will be composed of a minimum of 14 ministers (to be named Cabinet Secretaries) and a maximum of 24.

This will translate into savings for taxpayers, who will no longer have to pay the salaries and perks of a government such as the current grand coalition, which at formation included 40 ministers and 52 assistant ministers.

The position of assistant ministers will be history under the new constitutional order as will that of prime minister.

The pure presidential system will be checked by Parliament, which will have the power to vet all presidential appointments including that of the Attorney-General and Chief Justice and those of ambassadors and principal secretaries (now known as permanent secretaries).

Although the Prime Minister's position will eventually be abolished, the current PM will have an input on all major appointments as required under the National Accord until the next General Election.

Cabinet of technocrats

The Cabinet to be named after 2012 will in theory be composed of technocrats because MPs will not be eligible for appointment, giving the President a chance to base appointments on the expertise of nominees rather than parochial considerations.

The Cabinet Secretaries will be made accountable to the people by the powers given to Parliament to vet them. Under Section 152(10)(b) of the new Constitution, "the President shall dismiss the Cabinet secretary" if a majority of parliamentarians pass a resolution requiring that action.

To prevent a situation such as the controversial swearing in of President Kibaki following the last General Election, the draft constitution requires, in Section 14(1), that the swearing-in of the new president shall be "in public before the Chief Justice, or, in the absence of the Chief Justice, the Deputy Chief Justice".

The President will be sworn in on the first Tuesday after 14 days following the declaration of results of the General Election, to avoid a hasty swearing in before possible legal challenges to the election have been settled.

Among the most far-reaching changes proposed in the draft are those on land use. Land disputes were identified by the Waki commission as an underlying cause of the blood-letting that followed the last General Election.

The draft constitution says land in the new Kenya will be "held, used and managed in a manner that is equitable, efficient, productive and sustainable".

It sets out to address the disparities that have seen a few individuals own large tracts of land even in highly populous areas by requiring Parliament, in Section 68 (c)(i), to "prescribe minimum and maximum land holding acreages in respect of private land".

The draft takes away the powers of the President to allocate land, which has been blamed for numerous land problems such as the acquisition of vast tracts of the Mau water tower.

The power to manage public land will be held by an independent National Land Commission.

This commission will help to discourage individuals from owning huge tracts of underutilised land despite the acute land hunger in the country by assessing tax on land throughout the country.

Right to information

If implemented, the provisions of the draft will make Kenya a more open society.

Individuals will have a right to access information held by the State and a right to privacy will be enhanced by a clause in Section 35(3) that states "every person has the right to the correction or deletion of untrue or misleading information that affects the person".

Determined efforts by the government to control the media will hit a dead end once the draft constitution becomes the law of the land. Numerous sections of the draft require that the State shall not exercise control over the media and any media regulator formed by Parliament shall "be independent of control by government, political interests or commercial interests".

Elections in the new Kenya will be much more civilised affairs than they currently are, if the law is implemented. Parties will be forced to hold regular internal elections.

Political parties will have to reach outside the ethnic cocoons in which they draw support because they will receive public funding based on their strength in Parliament, which might lead to the emergence of a few more ideological and less parochial parties.

A cap on how much candidates can spend during campaigns will be imposed and candidates who lose during party nominations will not have the opportunity to defect to other parties.

Women will be the main winners under the new electoral system, enjoying at least a third of seats in all elective bodies, a move which will edge Kenya towards the situation in countries that boast high levels of gender parity around the world such as Rwanda and Sweden.

Policy makers

he key test for policy makers will come in implementation of the Bill of Rights, which guarantees all Kenyans the right to the highest attainable standards of health, adequate housing, access to clean and safe water and freedom from hunger.

A similar set of provisions in the Bill of Rights in South Africa has not led to the universal provision of these services but has put South Africans in a position to sue service providers who fall short of expectations.

It has also created great public awareness of their rights under the constitution.

According to constitutional law scholar Prof Yash Pal Ghai, legislating these rights is an important first step.

"Broadly, the draft constitution is an improvement on the current laws and the electorate will be wise to support it."


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