MAJOR PROPOSED
AMENDMENTS:
Despite the Bill seeking to amend many provisions of the
constitution, there are major changes which are targeted. The summary of major
changes include:
1.
Current provision: Article 203 (2)-For every
financial year, the equitable share of the revenue raised nationally that is
allocated to county governments shall
be not less than fifteen per cent of all revenue collected by the
national government. (The amount referred to in clause (2) shall be calculated on the basis of the most recent audited accounts of
revenue received, as approved by the National Assembly)
Changes: For every financial year, the
equitable share of the revenue raised nationally that is allocated to county
governments shall be not less than forty
five per cent of all revenue collected by the national government based on the exchequer account of the
preceding financial year
2.
Introduction of Article 204A: The establishment of a Fund to be known as the
Ward Equalization Fund where for every financial year at least five per cent of the equitable revenue allocation to the
county government shall be paid to be utilized in each county to implement
projects in accordance with development priorities of the ward representation
(in other words, a version of what is popularly known as CDF at the ward
level).
3.
Introduction of Article 232(2A): The state shall ensure that thirty per cent of
all public appointments in the national government and its agencies
pursuant to the constitution or legislation are reserved for minority communities. Minority community is any ethnic or racial community that comprises
less than three per cent of the population of Kenya. Further, no ethnic
group to have more than its proportionate share of their population in
appointments in national government and its agencies-the exception being
minority communities. These provisions shall also apply to private entities
contracted by the national government and its agencies.
4.
Introducing Article 245(3A)-giving the Inspector-General mandate to assign the administration police
service to enforce County legislation, safety and public order. Introducing
Article 246A-establishing a County
Policing Authority chaired by the governor. Other members include heads of
National Police Service, National Intelligence Service and the Directorate of
Criminal Investigations at the county level, two elected members nominated by
county assembly, the chairperson of the County Security Committee and 6 other
members appointed by the Governor (from individuals ordinarily resident in the
county from the business sector, community based organizations, persons with
special needs, religious organizations and Women). Provisions on these issues
require further legislation for effectiveness.
5.
Amending Article 88(2)-Independent Electoral Boundaries Commission to be composed of seven
commissioners nominated by the political parties represented in the National
Assembly in order of their numerical proportion in the National Assembly. These
commissioners then elect a chairperson from among their number. Further, the
persons nominated to be commissioners shall not be members of Parliament or a
county assembly. The current provisions are tight in that a person is not
eligible for appointment as a member of the Commission if the person—(a) has, at
any time within the preceding five years,
held office,or stood for election as—(i) a
member of Parliament or of a county assembly; or(ii) a member of the governing body of a political party; or(b) holds any State office.
6.
On
Judiciary, the amendments introduce (Article 160(3A)) a provision that for
every financial year the equitable share of revenue raised nationally that is
allocated to the judiciary shall not be
less than two and a half percent of all revenue collected by the national
government based on the exchequer account of the preceding financial year. Amends
article 165 so that the president does not appoint the Chief Justice and the
Deputy Chief Justice but shall be appointed by the Judicial Service Commission
subject to approval by the National Assembly. The amendment shall be a misnomer (especially Article 166 (1)(b))
as the article will read:
The Judicial Service Commission
shall appoint—
(a) the Chief Justice and the Deputy Chief Justice, in accordance with the
recommendation of the Judicial Service Commission,
and subject to the approval of the National Assembly; and
(b) all other judges, in
accordance with the recommendation of
the Judicial Service Commission.
Current 172. (1)(a)reads; The Judicial
Service Commission shall …— recommend to the President persons for appointment
as judges. The amendment reads; The Judicial Service Commission shall
appoint judges.
Effect: Without deleting Article166 (1)(b),
the amendments lead to ambiguity.
The high Court to have original
jurisdiction to determine compliance with Chapter Six (of the Constitution of
Kenya) by a person holding of seeking to hold a state office.
7.
The time
for a presidential election petition shall be extended; 7days notice to
petition after declaration of results, 14days to file petition and 30 days for
the Supreme Court to hear and determine the matter (7+14+30=51days)
Currently, a petition is filed within 7
days of results being declared and the Supreme Court hears and determines the
petition within 14 days.
8.
The
Supreme Court is to be given original and concurrent jurisdiction to
determine the constitutionality of new legislation. An application can be made
by anyone within 30 days of the passing of the new legislation. Further, Supreme Court is given original
jurisdiction to hear and determine all disputes relating to impeachment proceedings relating to the
governor and deputy governor.
9. JSC to
determine the remuneration of judges.
1 Finally,on
transfer of functions, the fourth Schedule is to transfer primary school,
special education, secondary schools and special education institutions and
(Wildlife reserves and sanctuaries) functions from the national government to
the county governments.
THEMATIC AREAS:
1. DEVOLUTION:
i.
IG and County Policing Authority discussed
above,
ii.
Fifteen per cent of income derived from
natural resources is allocated to the county where natural resources are
extracted. Five per cent of income from natural resources to be allocated to
communities where the resources are extracted, shall be held in trust by county
governments and jointly administered by county and national governments.
iii.
Process of removing County Governor to be
similar with that of removing County Governor. Issues relating to impeachment
of the two shall be heard and determined by the Supreme Court.
iv.
The allocation not less than forty five per
cent of revenue collected by the national government-discussed above.
v.
Introduction of Ward equalization
Fund-Discussed above.
2. SEPARATION OF POWERS.
i.
JSC to appoint CJ and DCJ subject to
approval of National Assembly, JSC to appoint all judges, JSC to determine
remuneration of judges.
ii.
Judiciary to be allocated not less than two
and a half per cent of national revenue of preceding financial year. (ALL
DISCUSSED ABOVE).
3. EQUALITY/EQUITY MERGED WITH ‘AFFIRMATIVE ACTION’
i.
Thirty per cent of appointments in national
government and its agencies (and all private enterprises contracted by them)
shall go to minority groups.
ii.
No community to have more than its
proportionate share of population in appointments in national government and
its agencies-with exception to minority groups.
4. LEAN GOVERNMENT
i.
Commissioners of Independent commissions to work
on part-time basis compulsorily (currently this is optional; ‘may’ will be
replaced with ‘shall’,
ii.
Each
commission shall consist of at least three, but notmore than SEVEN, members.
Currently the constitution allows a maximum of nine commissioners per
commission.
5. INDEPENDENCE OF COMMISSIONS
i.
Adding Ethics and Anti-Corruption Commission to
the list of independent commissions under Article 248 (2) (k).
ii.
Article 79 to be amended has no effect on
independence except rearrangement of current provisions.
6. ELECTORAL REFORMS.
i.
IEBC to have only one register
ii.
Register to be used for general elections to
be published in the Gazette at least 30 days before elections are held
iii.
Presidential petitions time lines
extended-discussed above.
iv.
IEBC commissioners (seven in number) to be
nominated by political parties-in order of their national Assembly numerical
numbers-to elect chairperson from their number
v.
Provision of a commissioner not having been
an official of a governing body of a political party or a Member of Parliament
of county assembly (or stood for elections) within the preceding five years.
vi.
Presiding Officer’s pronouncement of results
at polling stations cannot be overturned by Returning Officer (constituency
level) unless recount ensues in the presence of the returning officer.
vii.
IEBC to announce and publish aggregate of
results received from Returning Officers-does away with National Tallying
Centres.
7. Land Administration reforms
i.
National Land Commission to have exclusive
management of Public and Community Land while the national government to have
exclusive management of Private land.
Ochengo Onguso is the Chairman of the Board of Directors, Intellectus Consultancy Co. Ltd. He is a graduate Political Science and Public Administration, University of Nairobi and currently pursuing Bachelor of Law and Master in Political Science and Public Administration in the same institution.
