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The Dialogue Reference Group (DRG) facilitated the holding of 47 County Dialogue
Conferences(CDC) across the country to deepen the dialogue after the National
Dialogue Conference(NDC 1) which was held in September 2018. Each of the CDCs
produced a report with the key issues that the CDCs articulated to the DRG and the
NDC.
NDC1 focussed on seven main issues, and the CDC consultations were focussed on
these issues and have been reduced into a National Dialogue Consensus Agreement.
The NDCA signifies a unified statement of the reforms Kenyans want to see in
enhancing systems and structures of governance, elections, economic empowerment
and service delivery in the Country. It was arrived at after broad public dialogues and
participation across several counties and is a reflection of the will of the Kenyan
people.
In this report I reconcile the agreed to proposals and I introduce draft legislative, policy
and constitutional amendments for discussion and final approval. The structure of this
presentation outlines each of the seven NDC issues, and then within issue identifies
the proposals emanating from the NDCA, and then I input relevant amendments.
ii. Amend Article 101(1) by deleting the words “August, in” and replacing them
with the words “December, after”. This amendment ensures that National
Elections shall be held in December after every fifth year.
The clause will read “The election of Members of Parliament shall be held on
the second Tuesday in August in December after every fifth year.”
iii. Amend Article 180(1) by replacing the word “in” after the word “August”, with
the word “after”, and striking out the words “same day as a General Election of
Members of Parliament, being”. This is to ensure County elections are
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iv. Amend Article 177(1)(a) by replacing the word “in” after the word “August”, with
the word “after”, and striking out the words “same day as a General Election of
Members of Parliament, being”. This is to ensure County elections County
elections are separated from election of Members of the National Assembly and
are conducted after five years.
The clause will read “A county assembly consists of members elected by
registered voters of the wards constituting a single member constituency, on
the same day as a general election of Members of Parliament being the second
Tuesday in August in after every fifth year”
The County Governor shall be directly elected by the voters registered in the
County, on the same day as a General Election of Members of Parliament,
being the second Tuesday in August in after every fifth year”
ii. Amend Article 88(4)(c) by deleting it. It reads “The commission is responsible
for - (c) the delimitation of constituencies and wards.”
Amendment Proposal 3: Establish a training institute for IEBC staff knowing that
most of the staff at the body are engaged on a temporary basis.
This should be an operational issue at Secretariat level.
Amendment Proposal 4: IEBC officials who are found to have presided over an
election in which electoral offences were committed are held personally liable
and prosecuted.
Already provided for under Section 6 of the Election Offences Act, which prescribes a
penalty of a fine of not more than two million shillings, of imprisonment of not more
than five years or both.
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This is as far as political parties are concerned. We have the rules, what is lacking is
implementation. The Act provides for deregistration. To date despite blatant and
rampant violation of the Act and code none of the big culprits have been deregistered.
Grounds for deregistration are found in Section 21, and include unfair nomination
practices and contravention of the code
The roles and responsibilities of political parties as set out in the Article 91(1) of the
Constitution, are:
o To have the face of Kenya and to embrace inclusivity, gender, disabilities,
minorities, youth, marginalised
o To hold regular internal elections
o To carry out fair and democratic nomination processes
o Funding from the exchequer to political parties is to be used for Civic education,
promoting election of women, youth and marginalised.
o It’s funds should not be from a non-citizen, foreign government, inter-
governmental or non-governmental organisation.
o Should not be funded by an individual at more than 5% of its total budget.
o They have a duty to publish their source of funds
o Establish fair internal discipline mechanisms, and electoral dispute resolution
systems.
o Ensure compliance with Chapter 6.
o Keep a register of members
Amendment Proposal 8: Change how the IEBC commissioners are selected. The
Inter Parties model used during the IPPG of 1997 seems to gain currency. Most
Kenyans feel that the current way of getting commissioners does not work for
Kenya. It gives the country weak and exposed commissioners.
The Inter parties model expanded the Commission to 22 commissioners. The
Opposition nominated half of the Commissioners, and the Executive nominated the
rest. This position was agreed to out of goodwill and was not backed by any law. The
current Constitution limits the number of Commissioners to nine. We need to think
through this a bit more to find a harmonized approach to the Composition, mandate
and appointment of Commissioners.
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ii. Amend Article 248(2) by adding a new sub-clause(l) which shall read to include
amongst Chapter fifteen commissions “the Serious Economic and Financial
Crimes Commission”
iii. Amend Article 252(3) to include a new sub-clause (e) which shall read “The
following commissions and independent offices have power to issue summons
to a witness to assist for the purposes of its investigation- (e) the Serious
Economic and Financial Crimes Commission”
Delete Article 99(3) which is a clause that permits persons with cases in Court to vie
for elective posts, as long there is still an avenue for appeal, or the matter is
incomplete. It reads “A person is not disqualified under clause(2) unless all possibility
of appeal or review of the relevant sentence or decision has been exhausted.”
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i. Amend Article 130 (1) by inserting the words “Prime Minister, and two Deputy
Prime Ministers” immediately after the words “Deputy President”.
It will read “The national executive of the Republic comprises the President, the
Deputy President, the Prime Minister, two Deputy Prime Ministers and the
rest of Cabinet.”
ii. Amend Article 152(1) by renaming (c) (e). and renaming (d) (f). Inserting a new
clause 152(1)(c) which reads” the Prime Minister”. Inserting a new clause
152(1)(d) which reads “the Deputy Prime Ministers”.
The clause will read “The Cabinet consists of (a) the President (b) the Deputy
President (c) the Attorney General; and the Prime Minister. (d) not fewer than
fourteen and not more than twenty two Cabinet Secretaries Two Deputy Prime
Ministers (e) the Attorney General; and (f) not fewer than fourteen and not
more than twenty two Cabinet Secretaries.
iii. Amend Article 152(2) by inserting the words “the Prime Minister, two Deputy
Prime Minster’s and” immediately after the word appoint.
The new clause shall read “The President shall nominate and with the approval
of the National Assembly appoint the Prime Minister, two Deputy Prime
Ministers and Cabinet Secretaries.
iv. Amend Article 152(3) by inserting the words “Prime Minister, Deputy Prime
Minster and” immediately before the words “Cabinet Secretary”.
The new clause shall read “A Prime Minister, Deputy Prime Minister or
Cabinet Secretary shall not be a Member of Parliament.”
v. Amend Article 152(4) by inserting the words “Prime Minister, Deputy Prime
Minster and” immediately before the words “Cabinet Secretary”.
The new clause shall read “ Each person appointed as a Prime Minister,
Deputy Prime Minister and Cabinet Secretary (a) assumes office by swearing
or affirming faithfulness to the people and the Republic of Kenya and obedience
to this Constitution, before the President in accordance with the Third Schedule;
and (b) may resign by delivering a written statement of resignation to the
President.”
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vi. Amend Article 152(5)(a) and (b) by inserting the words “Prime Minister, Deputy
Prime Minster and” immediately before the words “Cabinet Secretary” in each
of the clauses (a) and (b).
The new clause shall read, “The President may (a) re-assign a Prime Minister,
Deputy Prime Minister and a Cabinet Secretary; (b) may dismiss a Prime
Minister, Deputy Prime Minister and a Cabinet Secretary;
viii. Amend 152 further by inserting a new Article 152(2) which provides for
qualifications of a Cabinet Minister as follows:
The new Article will read “A person is not qualified to be appointed a Cabinet
Secretary if that person: -
(a) does not satisfy the requirements of Chapter 6 of the Constitution.
(b) is not a holder of a Degree from a recognized University.”
ix. Amend Article 153(1) by inserting the words “Prime Minister, Deputy Prime
Minster and” immediately before the words “Cabinet Secretary”.
The new clause shall read “A decision by the Prime Minister, Deputy Prime
Minister and the Cabinet shall be in writing.”
x. Amend Article 153(2) by inserting the words “The Prime Minister, Deputy Prime
Minsters and” immediately before the words “Cabinet Secretaries”. Amend
153(2) further by inserting the words “and Parliament” immediately after the
word “President”.
The new clause shall read “The Prime Minister, Deputy Prime Ministers and
Cabinet Secretaries are accountable individually and collectively to the
President for the exercise of their powers and the performance of their
functions.”
i. Amend Article 97(1) by inserting a new clause as Article 97(1)(f) which reads
“The runner-up in the Presidential Election, not being an Independent
Candidate who shall occupy the position of Official Leader of the Opposition
in the National Assembly”
The new clause shall read; “the National Assembly consists of – (f) The
runner-up in the Presidential Election, not being an Independent Candidate
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who shall occupy the position of Official Leader of the Opposition in the
National Assembly”
ii. Amend Article 98(1) by inserting a new clause as Article 98(1)(g) which
reads “The running mate of the runner-up in the Presidential Election who
shall occupy the position of Official Leader of Opposition in the Senate”
The new clause shall read “The Senate consists of – (g) “The running mate
of the runner-up in the Presidential Election who shall occupy the position
of Official Leader of Opposition in the Senate”
i. Amend Article 97(1)(a) by deleting the words “two hundred and ninety” and
replacing them with the words “one hundred and fifty”
The new clause shall read “The National Assembly shall consist of – (a) two
hundred and ninety, one hundred and fifty members, each elected by the
registered voters of a single member constituency.”
ii. Amend Article 89(1) by deleting the words “two hundred and ninety” and
replacing them with the words “one hundred and fifty”.
The new clause shall read “There shall be two hundred and ninety, one
hundred and fifty constituencies for the purposes of the election of the
members of the National Assembly, provided for in Article 97(1).
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Amendment Proposal 5: The two thirds gender rule be strictly enforced in all
elective and appointive bodies and political parties. The persons on the party
lists for nominations should be elected.
i. Amend Article 97 by inserting a new Article 97(1)(e) which shall read “the
number of special seat members necessary to ensure that no more than two-
thirds of the membership of the assembly are of the same gender.”
ii. Insert a new Article 97(3) which shall provide that “The members contemplated
in in clause (1)(e) shall be elected by political parties in proportion to the seats
received in that election by each political party under paragraph (a) and (b)”.
iii. Insert a new Article 97(4) which shall provide that “The filling of special seats
under clause (1)(e) shall be determined after a declaration of elected members
from each constituency.
iv. Amend Article 90(1) to insert “(e)” just after the words “Articles 97(1)(c)”. Amend
Article 90(1) to insert “and (f)” just after the wording “Articles 98(1)(f) and
deleting the word and appearing just before (d)”.
The clause shall read “Elections for the seats in Parliament provided for under
Articls 97(1)(b)(c) and (e) and 98(1)(b), (c) and (d) and (f), and for the members
of county assemblies under 177(1)(b) and (c), shall be on the basis of
proportional representation by use of party lists.
v. Amend Article 97(1)(c) by deleting the word “nominated” and replacing it with
the word “elected”. This is to ensure that those who take up the special seats
have a popular mandate. The elections should be supervised by IEBC and the
of names of successful candidates for the party lists be published before the
general elections are held.
vi. Amend Article 98(1) by inserting a new clause Article 98(1)(f) which shall
provide that the Senate shall also consist of “the number of special seat
members necessary to ensure that no more than two-thirds of the membership
of the assembly are of the same gender.”
vii. Insert a new article, Article 98(4) which shall provide that “The members
contemplated in in clause (1)(f) shall be elected by political parties in proportion
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to the seats received in that election by each political party under paragraph
(a)”.
viii. Insert a new article, Article 98(5) which shall provide that “The filling of special
seats under clause (1)(f) shall be determined after a declaration of elected
members from each constituency.
ix. Amend Article 90(2)(a) by deleting the word “nominates” appearing therein and
replace it with the word “elects”.
The new clause will read “each political party participating in a general election
nominates elects and submits a list of all the persons who would stand elected
if the party were to be entitled to all the seats provided for under clause(1),
within the time provided by national legislation.”
x. Amend Article 98(1)(b) by deleting the word “nominated” and replacing it with
the word “elected”
The new clause shall read “sixteen women members who shall be nominated
elected by political parties according to the proportion of members of the Senate
elected under clause (a) in accordance with Article 90.”
i. Amend Article 248(2)(k) just after clause (j), to read “the National Ethics
and Civic Education Commission.”
ii. Insert a new Article 10A immediately after Article 10 which provides:
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Delete Article 230. This is the section that establishes the SRC.
Delete Article 248(2) (h). This is the section that outlines the Constitutional
Commissions
i. Amend article 215(1) by deleting the words Commission for Revenue Allocation
and replacing with the words Salaries and Revenue Allocation Commission.
This is the section that establishes the CRA. We are renaming it the SRAC.
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ii. Amend Article 216(1) by deleting the words Commission for Revenue Allocation
and replacing with the words Salaries and Revenue Allocation Commission.
This provides the functions of the CRA. We are renaming it SRAC.
iii. Amend Article 217(2)(b) by deleting the words “Commission on” appearing just
before the word “Revenue” and Replacing it with the words “Salaries and” to
read Salaries and Review Allocation .
iv. Amend Article 216 by inserting article 216(2B) immediately after clause 216(2)
which reads as follows:
The Commission shall also:
(a) set and regularly review the remuneration and benefits of all State Officers;
and
(b) advise the national and county governments on the remuneration and
benefits of all public officers. (This imports the previous functions of the SRC
into the functions of the newly created SRAC)
v. Amend Article 216 by inserting a new Article (3B) which reads as follows:
The Commission in performing its functions shall take the following principles
into account:
(a) the need to ensure that the total public compensation bill is fiscally
sustainable;
(b) the need to ensure that the public service is able to attract and retain the
skills required to execute their functions;
(c) the need to recognize productivity and performance;
(d) transparency and fairness
(This imports the previous principles governing the SRC into the principles of
the newly created SRAC)
NB. We need to rethink the composition. The CRA was dominated by
politicians, while the SRC was dominated by various sector in public service.
i. Amend Article 67(1) by deleting the words “National Land Commission” and replacing
them with the words “National Transitional Justice Commission”. This is the section
that establishes the NLC.
Amend Article 248(2)(b) by deleting the words “National Land Commission” and
replacing them with the words “National Transitional Justice Commission”. This is the
section that lists the Constitutional Commissions
Judiciary
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Amend Article 203(2) by deleting the words “fifteen” appearing before the word
“per” and replacing it with the words “thirty”.
The new clause shall read “For every financial year, the equitable share of the
revenue raised nationally that is allocated to county governments shall be not
less than fifteen thirty percent of all revenue collected by the national
government.”
Amendment Proposal 2: The National Government Coordination Act should be
repealed so as to scrap the Provincial Administration.
Move for repeal of the Act.
Amendment Proposal 3: The applicable laws should be amended to remove
Members of the National Assembly from the management of the Constituency
Development Fund so that the elected representatives concentrate on their
legislative and oversight mandates.
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