Dr. Nkatha Kabira
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Constitution-Making and Reform: Options for the Process
Constitution-making and Reform Options for the Process Michele Brandt, Jill Cottrell, Yash Ghai, and Anthony Regan Title Constitution-making and Reform: Options for the Process Authors Michele Brandt, Jill Cottrell, Yash Ghai, Anthony Regan Date November 2011 Publisher Interpeace ISBN 978-2-8399-0871-9 Printed in Switzerland Copyright © Interpeace 2011. All rights reserved. Reproduction of figures or short excerpts from this report is authorized free of charge and without formal written permission, provided that the original source is properly acknowledged, with mention of the complete name of the report, the publisher, and the numbering of the pages or figures. Permission can be granted only to use the material exactly as it is in the report. Figures may not be altered in any way, including the full legends. For media use it is sufficient to cite the source while using the original graphic or figure. This is an Interpeace publication. Interpeace’s publications do not reflect any specific national or political interest. Views expressed in this publication do not necessarily represent the views of Interpeace. For additional permissions or information please e-mail [email protected]. About Interpeace Interpeace has been enabling societies to build lasting peace since 1994. Interpeace is an independent, international peacebuilding organization and a strategic partner of the United Nations. It supports national teams in countries across Africa, Asia, Central America, Europe, and the Middle East. Interpeace also has a thematic program on constitution-making. Over 300 peacebuilding experts work to help their societies manage their internal divisions and conflicts without resorting to violence or coercion. -
Kenya's Supreme Court
Kenya’s Supreme Court: Old Wine in New Bottles? By Special Correspondent As the six Supreme Court judges were adjudicating Kenya’s first presidential election petition in March 2013, Justice Kalpana Hasmukhrai Rawal was waiting for a new president to take office and the newly elected National Assembly to convene so that her nomination as Deputy Chief Justice could move forward. The Judicial Service Commission (JSC) had settled on her appointment after interviewing a shortlist of applicants in February 2013. The Judges and Magistrates Vetting Board had earlier found her to be suitable to continue serving as a Court of Appeal judge. Justice Rawal eventually joined the Supreme Court on 3 June 2013. Two years later, Justice Rawal became the second Deputy Chief Justice (after Nancy Baraza, who resigned after she was heavily criticised for abusing her authority by threatening a security guard after the guard demanded to search her at a mall) to be embroiled in controversy. In 2015, Rawal challenged a notice that she retire at the age of 70. Around the same time, the then Chief Justice, Dr Willy Mutunga, would announce that he wanted to retire early so that the next Chief Justice would be appointed well ahead of the next election. In May 2014, Justice Philip Kiptoo Tunoi and High Court judge David Onyancha challenged the JSC’s decision to retire them at the age of 70. They argued that they were entitled to serve until they reached the age of 74 because they had been first appointed judges as under the old constitution. What seemed like a simple question about the retirement age of judges led to an unprecedented breakdown in the collegiate working atmosphere among the Supreme Court judges that had been maintained during the proceedings of the presidential election petition. -
Petition (Application) 47 of 2019
Petition (Application) 47 of 2019 Case Number Petition (Application) 47 of 2019 Parties GEO Chem Middle East v Kenya Bureau of Standards Case Class Civil Isaac Lenaola, Mohammed Khadhar Ibrahim, Philomena Mbete Mwilu, Smokin Judges C Wanjala, Susanna Njoki Ndungu Advocates Mr. Eric Mose for the Plaintiff Mr. Kisinga for the 1st Defendant Case Action Ruling Case Outcome Notice of Motion allowed Date Delivered 23 Sep 2020 Court County Nairobi Case Court Supreme Court of Kenya Court Division Civil REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA (Coram: Mwilu DCJ & VP, Ibrahim, Wanjala, Njoki & Lenaola, SCJJ) PETITION (APPLICATION) NO. 47 OF 2019 BETWEEN GEO CHEM MIDDLE EAST..................APPELLANT/APPLICANT AND KENYA BUREAU OF STANDARDS...........................RESPONDENT ____________________________________________________________ (Being an application to file a Supplementary Record of Appeal) ____________________________________________________________ RULING OF THE COURT 1. UPON perusing the Notice of Motion by the Appellant/Applicant dated 11th September 2020 and filed on 14th September 2020, which application is brought under Rule 40(4) of the Supreme Court Rules, 2010; and 2. UPON perusing the supporting affidavit of Counsel for the Appellant/ Applicant, Fredrick Ngatia, sworn to on 11th August 2020; and 3. UPON considering the written submissions by the Appellant/Applicant dated 14th September 2020 and filed on the same day wherein the Appellant/Applicant contends that the delay in filing the Supplementary Record of Appeal was occasioned by inability to obtain the Judges’ notes as they were not available at the time of filing the Appeal and that three letters; (i) one dated 23rd March 2012 from the Respondent to the Commissioner General, Kenya Revenue Authority; (ii) another dated 25th June 2013 from the Appellant’s lawyers, M/s Mahmoud & Gitau Advocates, to the Respondent and; (iii) another dated 15th July 2013 from the Respondent to the Appellant’s lawyer, M/s Mahmoud & Gitau Advocates, were all inadvertently omitted from the Record of Appeal and; 4. -
The Kenya Gazette
oe RN t_¢ A THE KENYA GAZETTE Published by Authority of the Republic of Kenya (Registered as a Newspaperat the G.P.O.) Vol. CXVITI—No. 132 NAIROBI, 28th October, 2016 Price Sh. 60 CONTENTS GAZETTE NOTICES PAGE PAGE Government Appointments........... .... 4392-4399, 4400 The Physical Planning Act—Completion of Part Development Plan ..........cecccecccseecssecssseessseessseecsseesssesssteesseense 4424 The Births and Death Registration Act—Declaration............ 4399 The Environmental Management and Co-ordination Act— Task Force on the Establishment of Tourism Protection Environmental Impact Assessment Study Repott............ 4424-4426 Service—Appointment 0.0... eeeceeeccecccccssessseessteesstecsseeenee 4400 Disposal of Uncollected Goods....... 4426 Task Force on the Operationalization of the National Loss of Share Certificates ......cc.ccccccecccceecsssesssseesssessseeessessseesseess 4426 Convention Bureauee eecceeccsseecccsseeecnseseecsneeesnsneeecnneees 4400 Lossof Policies 4426-4436 The Land Control Act—Appointment ...0....0..00...cceceeceeeeee 4401-4406 Change of Names 4436-4437 The Land Registration Act—Issue of Provisional Certificates, CC oeeeccecccecccessesssesssessessseessesssessessseessesseeeseeese 4406-4422 The East African Community Customs Management Act, SUPPLEMENTNos. 171 and 172 2004—Appointment and Limits of a Transit Shed, Customs Area, etc—Amendment..... 4422 Legislative Supplement County Governments Notices ..........ccceecceecceccssesesseeeseessteeeseees 4422 LEGAL NOTICE No. The Human Resource Management Professionals -
Creating the New Constitution: a Guide for Nepali Citizens
Creating the New Constitution: A Guide for Nepali Citizens Creating the New Constitution: A Guide for Nepali Citizens Editors Yash Ghai Jill Cottrell Contributors Bipin Adhikari Lok Raj Baral Surendra Bhandari Jill Cottrell Yash Ghai Krishna Hachhethu Krishna Khanal Dhruba Kumar Sapana Malla Kumar Regmi Geeta Pathak Sangroula Yubaraj Sangroula Pitamber Sharma Tek Tamrakar Mihir Thakur International IDEA publications are independent of specifi c national or political interests. Views expressed in this publication do not necessarily represent the views of Internatinoal IDEA, its Board or its Council members. @ International Institute for Democracy and Electoral Assistance 2008 Applications for permission to reproduce or translate all or any part of this publication should be made to: International IDEA SE - 103 34 Stockholm Sweden International IDEA encourages dissemination of its work and will promptly respond to request for permission to reproduce or translate its publications. Cover Photo: Deependra Bajracharya Graphic Design: Subarna Humagai ISBN : 978-91-85724-51-2 Preface The International Institute for Democracy and Electoral Assistance (International IDEA) is an intergovernmental organization that supports sustainable democratic change worldwide, including support to the constitution-making process. Since 2006, and on the basis of requests by national parties including political parties and more recently the Constituent Assembly, International IDEA has been providing support to the constitution-making process in Nepal. This support has focused mainly on the pro- visioning of resource materials and the convening of dialogues among national political actors on topics of key importance to the constitutional process. International IDEA will continue supporting the constitution-making process by open- ing avenues through which a broad cross-section of Nepali society can come together to discuss a host of constitutional issues. -
Chapter 20 Constitutional Commissions And
CHAPTER 20 CONSTITUTIONAL COMMISSIONS AND INDEPENDENT OFFICES IN KENYA AND AFRICA: EXPERIENCES, CHALLENGES AND OPPORTUNITIES1 This Chapter may be cited as: Ben Sihanya (due 2021) “Constitutional Commissions and Independent Offices in Kenya: Experiences, Challenges and Opportunities,” Chapter 20 in Ben Sihanya (due 2021) Constitutional Democracy, Regulatory, and Administrative Law in Kenya and Africa Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring Prof Ben Sihanya Advocates, Nairobi & Siaya 20.1 Problem Statement on Kenyan Constitutional Commissions and Independent Offices Why have the Constitutional Commissions and independent offices CCIOs not delivered on the constitutional promise of popular sovereignty, liberty, service delivery and constitutional democracy? Why does tribal colonialism, tyranny and hegemony persist in elections, appointments, contracts, tenders, service delivery and manipulation and intimidation especially in public service in spite of the constitutional commissions and independent offices? In the ensuing sections of this Chapter, an Afro-Kenyanist conceptualisation and problematisation is used in analysing constitutional commissions and independent offices. I have also discussed some of the debates regarding CCIOs in the context of Building Bridges Initiative (BBI) 2019 and 2020 reports, and the Constitution of Kenya (Amendment) Bill 2020. Sovereignty has at least three components under the Constitution of Kenya 2010 and in constitutional theory and practice. First, sovereignty is the constitutive power including constitution making and constitutional amendment. Second, sovereignty is the power to elect, impeach or recall governors or rulers. Third, sovereignty is the power to monitor and evaluate the government, governors or rulers, governance and to hold them accountable. This chapter assesses the meaning, mandate, operation and significance of constitutional commissions and independent offices. -
National Assembly
October 27, 2016 PARLIAMENTARY DEBATES 1 NATIONAL ASSEMBLY OFFICIAL REPORT Thursday, 27th October, 2016 The House met at 2.30 p.m. [The Speaker (Hon. Muturi) in the Chair] PRAYERS COMMUNICATION FROM THE CHAIR MEDIATION COMMITTEE ON ASSISTED REPRODUCTIVE TECHNOLOGY BILL Hon. Speaker: Hon. Members, you may recall that yesterday, Wednesday, 26th October 2016, I conveyed a Message from the Senate regarding its decision on the Assisted Reproductive Technology Bill, National Assembly Bill No.36 of 2014. In the Message, it is noted that the Bill was lost at the Second Reading on 19th October 2016 in the Senate. The effect of this is that the Bill now stands committed to a Mediation Committee in accordance to the provisions of Article 112 of the Constitution. Indeed, the Senate has already nominated five Senators to the aforesaid Mediation Committee. Hon. Members, arising from the above and in consultation with the leadership of the Majority Party and Minority Party in the House, I have appointed the following Members to represent the National Assembly in the Mediation Committee: Hon. Millie Odhiambo Mabona, MP. Hon. John Sakwa, MP. Hon. (Dr.) James Nyikal, MP. Hon. (Ms) Cecilia Ngetich, MP. Hon. (Ms) Florence Kajuju, MP. Hon. Members, the Mediation Committee is advised to expeditiously commence the process of developing an agreed version of the Bill in line with the provisions of Article 113 of the Constitution. Hon. Members, knowing that the House may be proceeding for some short recess, the Committee is encouraged to remember that it has a maximum of 30 days within which to complete its function. -
Decreeing and Establishing a Constitutional Order: Challenges Facing Kenya Yash Ghai 10 August 2009
Decreeing and establishing a constitutional order: challenges facing Kenya Yash Ghai 10 August 2009 There is a renewed interest in a new constitutional order in Kenya. A bad constitution is blamed for the post-election crisis, allowing the president to pack the electoral commission with his cronies shortly before the election; a largely unaccountable electoral commission declaring presidential election results without proper counting or reliable records; enormous powers vested in the office of, or illegally appropriated by, the president; the centralisation of power in Nairobi; the lack of public participation; the lack of autonomy, effectiveness and legitimacy of state institutions, particularly those for accountability and justice, principally judges, police, prosecution and the attorney general; opportunistic political parties and unprincipled politicians; and resulting corruption and wide scale impunity. People often ask: would Kenya have been a better place today if the “Bomas” draft had not been sabotaged? This essay argues that a good constitution, while critical, is not equivalent to constitutional order. Enactment of a constitution is distinct from the adherence to its values, institutions and procedures. A constitution by itself makes no difference. Kenyan society determines the extent to which the constitution will be observed, manipulated, or disregarded, and therefore the extent to which constitutional reforms will have meaning. The notion of a constitutional order is broader than merely the text of the constitution. It represents a fundamental commitment to the principles and procedures of the constitution and therefore emphasises behaviour, practice, and internalisation of norms. A central feature is the depersonalisation of power. Power belongs to state offices, not to individuals, however exalted. -
Title a Journey Around Constitutions
A Journey Around Constitutions: Reflections on Contemporary Title Constitutions Author(s) Ghai, Y Citation South African Law Journal, 2005, v. 122 n. 4, p. 804-831 Issued Date 2005 URL http://hdl.handle.net/10722/222191 South African Law Journal. Copyright © Juta & Company Ltd. Juta Law.; This work is licensed under a Creative Commons Rights Attribution-NonCommercial-NoDerivatives 4.0 International License. A JOURNEY AROUND CONSTITUTIONS: REFLECTIONS ON CONTEMPORARY CONS TITUTIONS* YASH GHAIt Professorof Law, University of Hong Kong INTRODUCTION I am greatly honoured by the invitation from the University of Cape Town to deliver the inaugural Beinart Lecture. It is a particularly flattering invitation as my mandate is to reflect on my experiences as a constitutional scholar and advisor. There have been truly remarkable changes in the ways constitutions are perceived, prepared and used since I first became interested in the subject nearly five decades ago. Although I will not be dealing with South Africa in this lecture, I think it important to state that these changes are reflected particularly well in South Africa's experience of constitutions, ranging from the use of constitutions to colonize and then to dominate, and latterly to liberate. I propose, in a highly personal vein, to reflect on these changes and to illustrate, where possible, with reference to my own research or consultancies and personal anecdotes.' But first let me acknowledge my debt to the South African scholars and freedom fighters who have inspired our perspectives on constitutional values. I believe that Professor Ben Beinart was both a scholar and activist in this tradition. -
Constitution Making for Nepal Chairperson: Hon’Ble Bhoj Raj Pokhrel, Chief Election Commissioner Speakers: Mr
CONSTITUTION CONSTITUTION MAKING in NEPAL MAKING UNDP NEPAL UN House, Pulchowk G.P.O Box 107 Kathmandu, Nepal in Tel: + (977-1) 5523200 Fax: + (977-1) 5523991, 5523986 NEPAL www.undp.org.np Report of a Conference organized by the Constitution Advisory Support Unit, UNDP 3 - 4 March 2007, Kathmandu, Nepal KATHMANDU SEPTEMBER 2007 KATHMANDU CONSTITUTION MAKING in NEPAL Report of a Conference Organized by the Constitution Advisory Support Unit, UNDP 3 - 4 March 2007 Kathmandu, Nepal KATHMANDU, OCTOBER 2007 About the cover picture: this picture was taken on a CASU visit to a potters' village in the Terai. The discussion was about the Constitution. As Yash Ghai said during the Conference “Making a constitution includes not just what happens at the Constituent Assembly, but all the meetings around the country, including in the villages, where people discuss what sort of constitution they want”. © United Nations Development Programme (UNDP) 2007 UN House, Pulchowk G.P.O Box 107, Kathmandu, Nepal Tel: + (977-1) 5523200 Fax: + (977-1) 5523991, 5523986 www.undp.org.np DESIGNED AND PROCESSED BY PowerCommunications Printed in Nepal Contents Foreword v Introduction vi CASU vi Acknowledgements vii SUMMARY: MAJOR POINTS OF THE DELIBERATIONS OF THE CONFERENCE The role of constitutions and constitution making in civil conflicts 1 Hallmarks of a good constitution making process 1 Interim arrangements 2 1990 Constitution 2 Issues in constitution making 3 Bodies to make the constitution 3 Fundamental principles 4 Implementation of the new constitution 5 The approach and contents of the new constitution 5 REPORT OF THE CONFERENCE I. COMPARATIVE EXPERIENCE: CONSTITUTION MAKING IN POST-CONFLICT SOCIETIES 8 II. -
The Un Constitutional
THE UN CONSTITUTIONAL I A Newsletter on United Nations Issue 7 Constitutional Support Winter 2017 FOREWORD “The UN Constitutional” team is pleased to publish the seventh issue of its The UN Constitutional Team: newsletter featuring articles by constitutional experts, reports from the field, and a digest of recent constitutions-related publications. In this issue, we have UN Dep. of Political Affairs (DPA) interviewed Yash Ghai on his experience as constitutional advisor and drafter, UN Dep. of Peacekeeping Operations particularly in Kenya and Fiji. The issue also features a brief introduction to (DPKO) federalism and a short case study on women’s national machineries; in addition Office of the High Commissioner for to updates on UN support to constitutional processes in six countries. Human Rights (OHCHR) UN Development Programme (UNDP) “The UN Constitutional” is a manifestation of the collective desire of 6 UN UN Children's Fund (UNICEF) entities to raise awareness around the UN of constitutional issues and themes, UN Women share information, and strengthen the provision of constitutional assistance. IN THIS ISSUE Interview with Yash Ghai Federalism Is Constitutional Recognition Professor and Advisor on A Brief Introduction Sufficient for Effectiveness of State Constitution-making (pp.6) Institutions? (pp.2) A Case Study of National Women’s Machineries (pp. 8) UPDATES FROM THE FIELD & HQ (p.12) ▪ Guyana pp. 12 ▪ Libya pp. 15 ▪ Malawi pp. 13 ▪ Philippines pp. 16 ▪ Liberia pp. 14 ▪ Tuvalu pp.17 ▪ Yemen pp. 18 READER’s DIGEST (pp.20) SIGN UP FOR THE NEWSLETTER Email: [email protected] The UN Constitutional – Issue 7 Issue 2013 1 INTERVIEW: YASH GHAI Interview with M. -
Monitor Electoral
BALANCE DE LAS ELECCIONES PRESIDENCIALES EN KENIA TRAS EL FALLO DEL TRIBUNAL SUPREMO 11 DE OCTUBRE DE 2017 MONITOR ELECTORAL Imagen: Los Angeles Times ANÁLISIS E INVESTIGACIÓN El pasado 8 de agosto tuvieron lugar las elecciones en Kenia para elegir al próximo Presidente, donde los principales candidatos fueron el actual Presidente, Uhuru Kenyatta, de la tribu kikuyu y el líder opositor, Raila Odinga de los lúo. A pesar de que ambos candidatos hicieron un llamado a celebrar la jornada con normalidad, de manera pacífica y respetando las reglas acordadas, conforme se fueron publicando los resultados que daban como ganador al Presidente Kenyatta, Raila Odinga realizaba comentarios sobre un supuesto fraude electoral. Tras estos señalamientos, su coalición opositora, la Súper Alianza Nacional (NASA), solicitó a la Comisión Electoral (IEBC) de Kenia que declarara a Odinga como “Presidente legítimo”, porque, según sus datos, aventajaba con alrededor de 700,000 votos al actual Jefe de Estado, Uhuru Kenyatta. En este sentido, el Tribunal Supremo de Kenia anuló el pasado 1º de septiembre los resultados de las elecciones celebradas y ordenó celebrar nuevos comicios en los próximos 60 días (a más tardar el 26 de octubre), invalidando así la victoria del actual Presidente. 1 MONITOR ELECTORAL Introducción: perfil político-electoral de Kenia Kenia es una república con un sistema presidencial que se divide en Poder Ejecutivo, Legislativo y Judicial. El Poder Ejecutivo es representado por el Presidente, quien es el Jefe de Estado y de Gobierno, así como el Comandante de las Fuerzas Armadas. El Presidente es electo para un período de 5 años con la posibilidad de reelección para un segundo mandato.