OKOA KENYA AMENDMENT BY POPULAR INITIATIVE. There are two ways of amending the Constitution: parliamentary and popular initiative. Under the parliamentary initiative, an amendment Bill is introduced to either house of Parliament and must be supported by at least two thirds of the members in both houses to sail through. Under the popular initiative, any person may propose amendments to the Constitution if he is supported by at least one million registered voters. In that event, the person presents a petition to the IEBC supported by one million signatures and accompanied by a draft Bill. Upon verification of the signatures, the IEBC then sends the Bill to all County Assemblies in Kenya. If the draft bill is approved by a majority of the County Assemblies (at least twenty four county assemblies), it is then introduced to Parliament. The Bill would pass if supported by the majority of members in both houses. However, if either houses of parliament fail to pass the bill, the Constitution provides that the Bill shall then be submitted to the people for approval through a referendum. The Constitution however provides that there are constitutional amendments which must be passed through a referendum (whether they are initiated through the parliamentary or popular initiatives). These include matters touching on the; (a) Supremacy of the Constitution (b) Territory of the Kenya (c) Sovereignty of the people (d) National values and principles of governance, (e) Bill of Rights (f) Term of office of the President (g) Independence of the Judiciary and the commissions and the independent offices (h) Functions of parliament (i) Objects, principles and structure of devolved governments OKOA KENYA INITIATIVE Okoa Kenya is a movement of like-minded Kenyans from all walks of life under a non-political platform who are convinced that Kenya is at a critical point in its history. Okoa Kenya was formed to address the pertinent national issues affecting the welfare of Kenyans and to campaign for the necessary amendments to the Constitution to address these issues. One of the initiatives launched by the movement is to promote a national popular initiative for the amendment of the Constitution as one of the ways to deal with the crisis in Kenya. The Committee of Experts appointed by Okoa Kenya to advice on the necessary constitutional issues requiring urgent amendment to deal with the national crisis has identified five key issues that need to be addressed. These five issues are a) Devolution b) Land Reforms c) Electoral Reforms d) Inclusivity e) Strengthening of public institutions and constitutional commissions This is a presentation of the general suggestion for the amendment of the Constitution to address the above 5 issues. GENERAL SUGGESTIONS FOR THE AMENDMENT OF THE CONSTITUTION. 1. INCREASE REVENUE AND FUNCTION ALLOCATION TO COUNTY GOVERNMENTS AND STRENGTHEN DEVOLUTION. ) Revenue Allocation 1. To amend the Constitution to increase county revenue allocation from the current 15% to 45% of all revenue collected by the national government. It is proposed that 40% of the monies be allocated to counties to enable them carry out functions that are commensurate with this allocation. The initiative also proposes that the remaining 5% be allocated to a Ward Equalization Fund, to be utilized in each county to implement projects in every ward in accordance with the development priorities of the ward representation. Rationale:- (a) The people of Kenya want to have more control of the affairs that are better handled by their representatives at the local level than at the national level. (b) That it is possible for Kenyans in Wards to be marginalized even within the structure of devolution. This can happen to an economically less productive Ward or to a Ward that did not vote for a vindictive Governor. (c) The administration of the fund will remain in the County Government but can only be used as prioritized by the Ward representation so as to adhere to the principle of Separation of Powers. 2. To amend the Constitution to change the basis of calculating the allocations to county governments from “the most recent audited accounts of revenues received, as approved by the National Assembly” to “the previous year’s revenues received”. Rationale:- The experience of the previous year has shown that it is possible to frustrate devolution by delaying the auditing and the approval of accounts of revenue. ) Education To amend the Constitution to devolve infrastructure and administration of primary schools, special education and secondary schools to the county government. However, employment, remuneration and administration of teachers and teachers’ affairs shall remain exclusively the mandate of the Teachers’ Service Commission. Rationale: - (a) To effectively promote and improve access and quality of education at the county level. (b) The National Government has over the years proved ineffective in the establishment of local education infrastructure in primary, secondary and special schools. ) Forests, Wildlife Reserves and Sanctuaries and Water Conservatories. To amend the Constitution to the effect that the management of forests, wildlife reserves and sanctuaries and water Conservatories shall be a county government function. Rationale: - Local communities have the greater stake in the preservation of forests, wildlife and water resources and are also better placed in their management. ) Security To amend the Constitution; (i) To place the Administration Police Service under the county governments while retaining the exclusive administration and operational command of the Inspector General of Police. (ii) To require the National Police Commission to establish structures that will ensure liaison on security between the National Police Service and County Governments. (iii) To provide that County Governments are the civilian authority over National Security Organs at the County level. Rationale: - (a) County governments need to be involved in security matters because each county has separate security concerns from the other. (b) Community policing is more effective when it involves the cooperation of elected representatives of the people at the county level. (c) The county policing authorities established by parliament need to be entrenched in the Constitution. (d) The Constitution requires that all National Security Organs to be subordinate to civilian authority. ) Strengthening of Devolution. . To amend the Constitution to; (a) Abolish the system of administration commonly known as the provincial administration. (b) Retain chiefs and assistant chiefs in the employment or command of county governments with the same terms and conditions of service/employment. (c) Redeploy all other officers of the provincial administration and their staff into the public service. (d) To provide that any system of administration that is established by the National Government thereafter must not only accord with and respect the system of devolved governments, but must also avoid duplicity of roles at the County level and competitive power structures. Rationale: - (a) The National Government did not restructure the system of administration, commonly known as provincial administration, as required by the Constitution but merely renamed it and its officers. This amendment is aimed at correcting this anomaly that has resulted in a crisis of administration at the county level. (b) To effectively promote a smoother and more effective transition from the old constitutional dispensation to the new one. . To amend the Constitution to provide proper procedures for the impeachment of Governors and Deputy Governors and to secure due process and adherence to the rules of natural justice. Rationale:- To avert the crisis and fears of miscarriage of justice currently emanating from the current provisions. 2. STRENGTHEN THE ROLE OF THE NATIONAL LAND COMMISSION AND DEFINE THE ROLE OF AND BENEFITS FOR COMMUNITIES IN NATURAL RESOURCES. 1. To amend the Constitution to have a clear definition as regards the mandate and role of the National Land Commission by providing that it shall exclusively manage all registries, processes and dispositions in respect of Public and Community Land in Kenya. 2. To amend the Constitution to have a clear definition as regards the mandate and role of the National Government on matters of land by providing that it shall; a) Formulate and implement the National Land Policy b) Exclusively manage all registries, processes and dispositions in respect of Private Land. Rationale:- The Constitution is currently unclear about the exclusivity of the roles of the National Lands Commission. This has resulted to overlaps of jurisdictions between the National Government and the Commission, and an unhealthy competition over functions between the two. 3. To amend the Constitution to provide for a criteria for sharing of revenues from mineral, oil and gas resources where the resources are explored and/or exploited. This criteria will provide for; (a) a definite percentage of sharing of revenues between national government and county governments and between county governments and host communities, (b) the utilization of revenues for the benefit of current and future generations of Kenyans, (c) the classes of benefits to be shared. Rationale: - To promote resource sharing in a way that will avert the dangers of resource based conflicts in the future as are normal in most African countries. 3. ELECTION REFORMS TO STRENGTHEN THE ELECTORAL SYSTEM TO ENSURE FREE, FAIR, TRANPARENT, EFFICIENT, ACCURATE AND ACCOUNTABLE ELECTIONS. 1. To amend the Constitution to establish effective and clear mechanisms on the conduct of Presidential, Senatorial and Governor elections in Kenya by providing the following; a) That there shall be a returning officer of the Presidential, Senatorial and Governor elections in every constituency. b) That the poll results shall be transmitted from the Presiding officer of the polling stations directly to the returning officers at the constituency. c) By providing that the pronouncement of the presiding officer is final and the returning officer may not alter a presiding officers’ announcement unless upon a recount of votes at the constituency tallying centre in the presence of the respective presiding officer. d) That the winner of a Presidential, Senatorial or Governor election at the constituency will be announced by the Constituency returning officer after aggregating the results announced by presiding officers. e) That constituency returning officer shall announce and publish the election results of the constituency and IEBC shall announce the final results from an aggregate of the results from the various constituency tallying centres. f) There will be no intermediate tallying of poll results. Rationale:- (a) To provide a system of Presidential, Senatorial and Governor Elections that complies with the constitutional principles of transparency, efficiency, accuracy, accountability and verifiability of election results. (b) To overcome the accusations and suspicions of manipulation of poll results at constituency, county and national levels as has happened in the last two General Elections (c) To ensure faster, accurate and transparent poll results. (d) To devolve the functions of IEBC in respect of elections. 2. To amend the Constitution to provide that the system of voter registration, voter identification and transmission of election results shall be through electronic mode. Rationale:- (a) The use of electronic systems remains the only way to guard against electoral malpractices in the registration and identification of voters and in the transmission of poll results. (b) Kenya has already purchased all the relevant infrastructure to enable the use of an electronic mode. 3. To amend the Constitution to ensure that the IEBC has only one national voter register which shall be published at least 30 days to the general elections Rationale:- The maintaining of more than one voter register has been shown to cause confusion, and suspicion which impedes on IEBC’s transparency and accountability. 4. To amend the Constitution to include a provision that the IEBC shall provide any person, at the person’s request, either in electronic or hard copy, or both the data or document used in elections within 24 hours of such a request . Rationale:- To ensure transparency of elections and the accountability of IEBC. 5. To amend the Constitution to include a provision requiring the IEBC to establish appropriate structures and mechanisms to ensure that all regions have equal opportunity to access voter registration. Rationale:- To ensure fairness in the electoral process. 6. To amend the Constitution to include a provision that IEBC shall have a duty to the full and complete disclosure to the public on all its processes, decisions and transactions relating to its operations. Rationale:- To uphold the principles of transparency and accountability of the IEBC. 7. To amend the Constitution to adopt a system of appointment of commissioners in which; a) The commissioners of IEBC are nominated by parliamentary political parties and serve on a non-executive part time basis. b) The commissioners of IEBC elect their own chairman. Rationale:- (a) The assumption that there are Kenyans who have no political affiliations is not realistic. (b) That even with disclosed political affiliations, persons can be fair and honest. (c) A participation of all parliamentary political parties in the management of elections will remove suspicions and build trust in election results. (d) The chairman of the electoral commission must command the respect and support of all IEBC commissioners and political parties at all times. 8. To amend the Constitution to provide that it is the sole responsibility of IEBC to deliver a free and fair election. Rationale:- IEBC has previously shifted the responsibility to secure the integrity of the vote to candidates and political parties. 9. To amend the Constitution to provide that the issuance of a National Identity Card upon acquiring the age of majority is part of the entrenched political rights. Rationale:- To recognize the determinant role that issuance of identity cards has over the exercise of one’s political right and in particular the right to vote. 4. TO MAKE PROVISIONS FOR THE ENFORCEMENT OF ETHNIC INCLUSIVITY, EQUITY AND DIVERSITY IN PUBLIC APPOINTMENTS AND INCREASED REPRESENTATION OF WOMEN, YOUTH AND PEOPLE LIVING WITH DISABILITIES. To amend the Constitution to provide; i. That 30 % of all public appointments to Public Service in the National Government shall be reserved for minorities. ii. A minority community is any ethnic or racial community that comprises no more than 3% of Kenya’s population. iii. No ethnic community shall have more than 15% share of appointments to Public Service in the National Government. iv. That within the provided ratios, the appointments must also be equitable among the different ethnic communities. v. That these rules shall apply at all levels of employment and in every institution, department and sector of Public Service in the National Government and its agencies. vi. That these rules shall also apply to all private enterprises that are contracted by National Government institutions and agencies. Rationale:- (a) To provide for the effective implementation of the principles of inclusivity under the Constitution. (b) To ensure that all communities are equitably represented in Public Service appointments. (c) To provide for a system of affirmative action for marginalized and minority communities. (d) To ensure that there is equality and equity among all Kenyans regardless of their ethnic identities. (e) To ensure that Tax money collected by the National Government and used through private enterprise is utilized in a manner that complies with the principles of inclusivity. 5. STRENGTHENING OF PUBLIC INSTITUTIONS AND CONSTITUTIONAL COMMISSIONS. . Judiciary. 1. To amend the Constitution to expand the jurisdiction of the Supreme Court to have original and concurrent jurisdiction to determine the constitutionality of new bills within 30 days after they become law. The jurisdiction of the High Court to determine the constitutionality of laws remains unaffected. Rationale:- a) In the operation of the doctrine of separation of powers, the judiciary must be an effective check on excesses not only of the executive, but also of the legislature. b) To avert the costs and consequences of implementation of outrightly unconstitutional laws and the conflicts that arise therefrom. 2. To amend the Constitution to remove the powers of the President in the process of appointment of the Chief Justice, the Deputy Chief Justice and judges and to vest these powers exclusively within the Judicial Service Commission upon approval of Parliament. Rationale:- i. The Executive is represented in the Judicial Service Commission through the Attorney General. The President also appoints the chairman of the Public Service Commission and two members of the public to the Judicial Service Commission. The President’s further say in judicial appointment is not justifiable. ii. The powers given to the President to appoint the Chief Justice, Deputy Chief Justice and judges is an unnecessary interference with the independence of the Judiciary. 2A. In the alternative, to amend the Constitution to impose time limitation of 14 days within which the President must appoint the Chief Justice, Deputy Chief Justice and judges. Rationale:- To protect the independence of the Judiciary by ensuring that the exercise of the powers of the President in appointment of Judges are not discretionary. 3. To amend the Constitution to make provision for minimum funding to the Judiciary calculated as a percentage of the budget. Rationale:- To ensure the Judiciary is properly funded for its independence and to take away the power of the legislature to interfere with the independence of the Judiciary using budgetary restrictions. 4. To amend the Constitution to provide for powers of the Supreme Court to review judgments of any judge who has been; (a) Removed from office on recommendation of a tribunal appointed by the President. (b) Removed from office pursuant to The Vetting of Judges and Magistrates Act 2011 (c) Resigned or opted to retire whether before or after the commencement of that Act in consequence of a complaint of misconduct. Rationale:- To address the gap in the law to ensure that provisions under the Supreme Court Act are anchored in the Constitution. 5. To amend the Constitution to provide that all legal proceedings relating to quasi-judicial functions of either the Senate or the National Assembly shall be heard exclusively by the Supreme Court. Rationale:- (a) To streamline the role of the Judiciary in providing checks and balances to the powers of the Senate and National Assembly. (b) To create a more effective process for the judicial review of the quasi-judicial functions of the legislature. 6. To amend the Constitution to harmonize the retirement age of judges. Rationale:- To remove the separate terms for service for judges in the same judiciary. 7. To amend the Constitution to provide for an extension or expansion of time limit within which to file a petition challenging the election of President and to hear and determine a Presidential petition. Rationale:- The experience of the first Presidential election petition under this Constitution showed that the timelines were unrealistic. . Ethics & Anti-Corruption. 1. To amend the Constitution to provide for the Ethics & Anti-Corruption Commission as an independent and constitutional commission. Rationale:- Though the Constitution requires the existence of the Commission, it does not provide for it as one of the Constitutional commissions. 2. To amend the Constitution to empower the High Court to deal with issues relating to the Leadership and Integrity chapter of the Constitution. Rationale:- To further strengthen the implementation of the constitutional provisions on ethics and integrity. . Constitutional Commissions To provide that all constitutional commissioners shall be non- executive and shall operate on a part time basis. Rationale:- To regulate and lower the public wage bill.
Posted on: Wed, 24 Sep 2014 16:29:03 +0000
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