Otherwise some content on merits and demerits of the proposed constitution:
Merits
Chapter 1
1. The introduction of a Preamble is a step forward. You will remember (from yesterday’s discussion) that we had noted the lack of “local ownership” of our independence constitution. The preamble sets us out as a distinct people with a distinct history.
Chapter 2
2. The recognition of the Devolved Government structure is also a positive provision in the PNC. You may have heard it said that some people groups in Kenya regard a journey to Nairobi as a visit to Kenya. It is hoped that the devolved structure will provide a framework that is real and equitable. More comments on this when we discuss the relevant chapter.
3. Recognition of Kiswahili as a national language is like music to my soul! I recall having recently read a poem entitled “English is a stupid language”. Well, whereas I wouldn’t go this far, I do think that Kiswahili is a language that is just as good (if not better) than English. To add to this, is the fact that it is our own, one of the jewels of our heritage. Like one of the 8 – 4 -4 text books one would wish to say “Kiswahili kitukuzwe!”
4. The inclusion of national values in the constitution is an important step in setting out for government what we, as citizens, expect whenever governmental power is being exercised. My heart is greatly pained whenever corruption is uncovered or when I see the dishonorable treatment of people in what are commonly called “operations”. Will this provision really bring these things to a halt? Your bet is as good as mine.
5. Culture (and particularly intellectual property/innovations) has been included and this is good. To quote the Final COE report to the National Assembly:
“…in an age when there have been external attempts to alienate, privatize and patent the indigenous knowledge, intellectual property rights and innovations of Kenyan communities such as the ciondo and kikoi, it is important to provide for the protection of intellectual property.”
Chapter 3
6. The chapter on citizenship has made ground in leveling the plain amongst genders. First of all, it provides no limitation to the right of a child acquiring citizenship by birth so long as either one of his parents is a Kenyan by birth. Secondly, men who are married to Kenyan women are entitled to apply for Kenyan citizenship.
7. In a world that now is being referred to as a “global village”, dual citizenship is a timely provision. Who knows, perhaps this may lure President Obama to retire to K’Ogello rather than Illinois!
Demerits
Chapter 1
1. Article 2 (6) is a worrisome provision. It seems to give automatic constitutional status to international agreements that Kenya has agreed to. It is not clear why this provision was included by the COE in this final draft given that all previous drafts did not contain it. Further, all the other COE drafts required treaties to be considered and approved by Parliament. This provision has been deleted and no explanation is given in the final COE report.
Given this state of affairs, it is possible for the State President to enter into international agreements that may be inconsistent with the will of the Kenyan people. These provisions would be on an equal footing with other provisions of the Constitution.
2. Article 3 provides for defense of the constitution. To defend the constitution, one should know what is says. As such, it would have been good if an additional provision were included to provide for dissemination and education on the Constitution.
Chapter 2
3. There has been much debate on Article 8 which provides that “there shall be no state religion”.
The initial Harmonized Draft by the COE contained three provisions: (a) State and religion shall be separate; (b) There shall be no state religion; and (c) The state shall treat all religions equally. Provisions (a) & (c) were removed by the Parliamentary Select Committee.
In the absence of the provision “the state shall treat all religions equally” there is concern that favoritism may be shown to some religion(s) over others.
Chapter 3
4. The provision on “foundlings” (Article 14) is also of concern. Given the fact that Kenya has numerous porous borders and a significantly more robust economy than many of its neighbors, it is possible that this provision may be misused. Where the country receives a huge influx of such foundlings (who will be presumed to be citizens), this could have negative effects in the long run.
The COE was requested to amend this provision so that such children would be required to apply for citizenship. However, they declined on the basis that it would be hard for the children to apply. In the alternative, they introduced a provision (Article 17) that would allow for nullification where the child is shown to be a citizen of another country.
Chapter 1
1. The introduction of a Preamble is a step forward. You will remember (from yesterday’s discussion) that we had noted the lack of “local ownership” of our independence constitution. The preamble sets us out as a distinct people with a distinct history.
Chapter 2
2. The recognition of the Devolved Government structure is also a positive provision in the PNC. You may have heard it said that some people groups in Kenya regard a journey to Nairobi as a visit to Kenya. It is hoped that the devolved structure will provide a framework that is real and equitable. More comments on this when we discuss the relevant chapter.
3. Recognition of Kiswahili as a national language is like music to my soul! I recall having recently read a poem entitled “English is a stupid language”. Well, whereas I wouldn’t go this far, I do think that Kiswahili is a language that is just as good (if not better) than English. To add to this, is the fact that it is our own, one of the jewels of our heritage. Like one of the 8 – 4 -4 text books one would wish to say “Kiswahili kitukuzwe!”
4. The inclusion of national values in the constitution is an important step in setting out for government what we, as citizens, expect whenever governmental power is being exercised. My heart is greatly pained whenever corruption is uncovered or when I see the dishonorable treatment of people in what are commonly called “operations”. Will this provision really bring these things to a halt? Your bet is as good as mine.
5. Culture (and particularly intellectual property/innovations) has been included and this is good. To quote the Final COE report to the National Assembly:
“…in an age when there have been external attempts to alienate, privatize and patent the indigenous knowledge, intellectual property rights and innovations of Kenyan communities such as the ciondo and kikoi, it is important to provide for the protection of intellectual property.”
Chapter 3
6. The chapter on citizenship has made ground in leveling the plain amongst genders. First of all, it provides no limitation to the right of a child acquiring citizenship by birth so long as either one of his parents is a Kenyan by birth. Secondly, men who are married to Kenyan women are entitled to apply for Kenyan citizenship.
7. In a world that now is being referred to as a “global village”, dual citizenship is a timely provision. Who knows, perhaps this may lure President Obama to retire to K’Ogello rather than Illinois!
Demerits
Chapter 1
1. Article 2 (6) is a worrisome provision. It seems to give automatic constitutional status to international agreements that Kenya has agreed to. It is not clear why this provision was included by the COE in this final draft given that all previous drafts did not contain it. Further, all the other COE drafts required treaties to be considered and approved by Parliament. This provision has been deleted and no explanation is given in the final COE report.
Given this state of affairs, it is possible for the State President to enter into international agreements that may be inconsistent with the will of the Kenyan people. These provisions would be on an equal footing with other provisions of the Constitution.
2. Article 3 provides for defense of the constitution. To defend the constitution, one should know what is says. As such, it would have been good if an additional provision were included to provide for dissemination and education on the Constitution.
Chapter 2
3. There has been much debate on Article 8 which provides that “there shall be no state religion”.
The initial Harmonized Draft by the COE contained three provisions: (a) State and religion shall be separate; (b) There shall be no state religion; and (c) The state shall treat all religions equally. Provisions (a) & (c) were removed by the Parliamentary Select Committee.
In the absence of the provision “the state shall treat all religions equally” there is concern that favoritism may be shown to some religion(s) over others.
Chapter 3
4. The provision on “foundlings” (Article 14) is also of concern. Given the fact that Kenya has numerous porous borders and a significantly more robust economy than many of its neighbors, it is possible that this provision may be misused. Where the country receives a huge influx of such foundlings (who will be presumed to be citizens), this could have negative effects in the long run.
The COE was requested to amend this provision so that such children would be required to apply for citizenship. However, they declined on the basis that it would be hard for the children to apply. In the alternative, they introduced a provision (Article 17) that would allow for nullification where the child is shown to be a citizen of another country.
