The impending referendum will be the most serious attempt to establish an autochthonous (home-grown) constitution by and for the people of Kenya . Chapter One of the draft entrenches the people’s supremacy and for the first time decrees that the three arms of government; the executive, parliament and the judiciary are subordinate to the sovereign will of the citizens. Officers and organs of the state at national and county level will henceforth exercise delegated authority for and on behalf of the people. Chapter Nine of the draft will fundamentally change the way state power is exercised in Kenya . Cabinet will be composed of professionals who owe their allegiance to the people. Currently, elected politicians appointed on the basis of perceived loyalty to the president serve in cabinet. They are not accountable to the people and their judgements are often blurred by the interests of their ethnic and geographical constituencies. Parliament (the Senate and the National Assembly) has been granted the power to vet and approve cabinet and virtually all other state appointments. Currently Parliamentary Standing Committees merely audit the process of exercise of power by the Executive and their perfunctory interventions are often a “mere act after the fact”. The right of recall in Chapter Eight; section 104 gives the people the right to sanction members of Parliament who act against the wishes of their constituents.
Chapter Eleven on devolution establishes the division of powers between the central government and devolved units. It recognises that there is considerable amount of diversity in respect of language, religion and culture among Kenyans and seeks to promote democracy, equity and national unity among regions and sections with varying geographical and economic characteristics. Chapter Seven; section 85 allows independent candidates to run for office both at national and county governments. These provisions and the history of President Barrack Obama should inspire economically and socially disadvantaged Kenyans who have historically been shut out of competitive parliamentary politics. County Assemblies and Executives will make it easier for marginalised groups and individuals to seek and access state power and cultivate national profiles just like President Obama did. The devolved governments will also replace the unelected, unresponsive and unaccountable provincial administration which has bestrode Kenya like a colossus since the colonial days. This will give people at the grassroots the taste of real power.
Chapter Two declares that Kenya is a republic where state power can only be assumed through successful competitive politics and not feudal antecedents. It stipulates that Kenya is a secular state where there is no state religion. Those arguing that the draft elevates Islam above other religions are mistaken. The entrenchment of the Kadhis’ Courts is not fundamentally a matter of faith but one of nationhood. The Muslim populations of the 10 mile Coastal strip-mwambao (then governed by the Sultan of Zanzibar) and the Sultanates/Chieftaincies of the former Northern Frontier District (NFD) were not fully administered as parts of the Kenya Colony prior to June 1963. They had an option to join the territory of an independent Kenya or other states. During the 1961-62 constitutional conferences to negotiate the independence of Kenya they lobbied for the insertion of the Kadhis’ courts inter alia as a condition precedent to joining Kenya . The Lancaster Conference of 1962 which drafted the Kenya Independence Constitution entrenched this right to scuttle the secessionist elements in the NFD and Mwambao. That constitution was and still is highly steeped with Judaeo-Christian philosophy of law and hence the entrenchment of the Muslims’ right to be specifically protected as a minority was legitimate. This is based on the principle of inclusiveness which did not diminish or reduce the rights of Christians or other groups in the law.
Chapter Three permits dual nationality thus allowing a Kenyan who is a citizen by birth to lawfully acquire the citizenship of another country. This will solve the problems faced by many Kenyans in the Diaspora and assist those who wish to export their labour resources to foreign countries.
Chapter Five establishes a framework to ensure that the process of allocation, adjudication, consolidation and registration of land is done equitably, transparently and sustainably. Section 68 seeks to regulate the minimum and maximum land holding acreages thus promoting sustainable use of land resources, inter-generational equity and conservation. It will prevent a few individuals from hoarding arable land to the exclusion of the majority. Young Kenyans who often claim to have been disinherited and de-franchised by the current ruling elite should be enthusiastic about this clause because it will guarantee them, their progeny and the future generations of Kenyans access to a place they can call home.
Finally, the Bill of Rights is very innovative. It elevates the basic freedoms and rights of a citizen above the interests of the state and or government. Section 23(2) spreads the jurisdiction of determining cases relating to violation of rights and freedoms to subordinate courts. This will ease the search for justice by economically disadvantaged people in rural areas.
The draft is passionately pro-life contrary to assertions that it will legalise abortion. Section 26 declares that life begins at conception and expressly criminalises the termination of such life unless there is need for emergency treatment or where the life of the mother is in danger. Criminal abortion does not happen because there is a law allowing it; but rather due to moral depravity or desperation. Whereas the clergy can legitimise their dislike for abortion on faith and morality, a sick woman, accident victim, survivor of rape, defilement and incest does not have that pleasure; it is often about their own life or dignity. In such situations abortion ought to be a legitimate choice and its morality or otherwise is not a matter for religious or cultural conjecture. It is a very personal choice and it is not a matter for religious zealots to decide but one that is entirely for the victim to make. The exceptions in section 26 (4) are therefore not matters of religion or morality; but rather medico-legal issues which the clergy should leave to health professionals who understand how best to save life in the event of an emergency.
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