KENYA SUMAKU

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Draft Constitution: clauses that need revision

Posted by Popular Ombudsman on November 21, 2009

From now till the end of the month allowed for debate, our legal experts will take you through the various provisions in the Harmonized Draft Constitution and make suggestions about possible improvements. There will be room to make comments about the suggestions they will make (whether you do agree with them or disagree, your views will be published). Today, we tackle several clauses as enumerated below:

First, the CoE has shown a great deal of diligence in the way they crafted this draft. Last week, this blog condemned the distorted views of some columnists who were discussing a clandestine copy which finally turned out to be wrong. Because the correct document is in the public domain, let us subject it to rigorous evaluation and see how it holds.

The following issues have been noted:

i) pg 70
131. (2) Parliament shall enact legislation to provide for the grounds on which a member may be recalled and the procedure to be followed.

-Due to conflict of interest, parliament will never do this, they will create hurdles. A self executing provision here could be the only sure way of making this clause functional.
ii) pg 81
158. (7) (b) the courts, constitutional Commissions and State Officers and are able to secure their independence, impartiality, dignity, accessibility and effectiveness as contemplated in this constitution.
-Remove the word ‘and’ after Officers.
iii)pg 86
169. (4) If the State President is unable to nominate the fifth person, that person shall be nominated by-
i) a member of the family of the State President; or
ii)where no such member is willing or able to make a nomination, by a close relative of the state president.
-This clause will be greatly abused. It should be made a constitutional requirement that the president during the nomination process when seeking the presidency will name an individual or two individuals any of whom will be required to attend by law if summoned for the purpose of this tribunal. If they completely refuse to attend, then the tribunal should be free to proceed with its investigations!
iv)pg 104

203. (2) What shall be the terms of service of the judges of the constitutional court? The constitutional court should have at least 7 judges, not five and a decision on presidential elections (which cannot be appealed) should be heard by seven judges to legitimize its finality.

-To be continued

Chapter 14: Devolved Government

This chapter details the provisions for a devolved government. A good attempt has been made to clearly demarcate the relationships between the various levels and the manner in which officers shall be elected. Clause 213. Deals with objectives
Clause 214. Defines broad principles. This clause could be enhanced to provide for the level of indebtedness allowable or if allowable at all.

Part 2.
Clause 215. Regional governments…
Clause 218. Provides for the composition and leadership of the Regional Governments.
Because Regions may not necessarily have one community, minorities need to be cushioned against endless subjugation. Perhaps the threshold for election as a Regional Director should be quite stiff (maybe 55-60% of votes). That way it will be useful for an aspirant to obtain support from most of the areas.

Part 3. County governments

Clause 222. Provides for elections in counties and filling of special seats.

Clause 229. 1) Transfer of power or a function of a government at one level may be transferred by agreement between the governments if-

Here, the agreement must be in writing and properly attested to lest it be abused.

Finally, the drafters needed to anticipate the following scenario:
What will happen if the laws of the County or Regional Government are disregarded by some people? Obviously, law enforcement is not clearly spelled out either here or in the provisions covering the police service. This will make the Regional Governments and County Governments toothless bull dogs. Law enforcement for the Regional Governments and Counties should and must be clarified in the final draft!

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