SBW A.1 – 18.1.2010
RECORD OF MEETING OF THE PARLIAMENTARY SELECT COMMITTEE ON CONSTITUTIONAL REVIEW HELD ON MONDAY, 18 TH JANUARY, 2010 AT THE GREAT RIFT VALLEY LODGE, NAIVASHA
PRESENT
The Hon. Mohamed Abdikadir, MP – Chairman
The Hon. Ababu Namwamba, MP; The Hon. Martha Karua, MP; The Hon. Wilfred Ombui, MP; The Hon. Wilfred Ombui, MP; The Hon. Chachu Ganya, MP; The Hon. Mwangi Kiunjuri, MP; The Hon. Danson Mungatana, MP; The Hon. Sophia Abdi Noor, MP; The Hon. (Dr.) Sally Kosgey, MP; The Hon. Amina Abdala, MP; The Hon. Mutula Kilonzo, MP; The Hon. Kambi Kazungu, MP; The Hon. Isaac Ruto, MP; The Hon. James Orengo, MP; The Hon. David Musila, MP; The Hon. Ekwe Ethuro, MP; The Hon. Jeremiah Kioni, MP; The Hon. Millie Odhiambo, MP; The Hon. Musalia Mudavadi, MP; The Hon. Peter Munya, MP; The Hon. Moses Wetangula, MP; The Hon. Charity Ngilu, MP; The Hon. Uhuru Kenyatta, MP; The Hon. J. Nkaisserry, MP; The Hon. W. Samoei Rutto, MP; The Hon. Beth Mugo, MP;
ABSENT WITH APOLOGY
The Hon. Najib Balala, MP;
IN ATTENDANCE
NATIONAL ASSEMBLY
Mr. Patrick Gichohi - Clerk of the National Assembly Mrs. Consolata Munga - Deputy Director, Committee Services Mr. Jeremiah Nyengenye - Principal Legal Counsel Mr. Paul K. Ngentich - Senior Research Officer Mr. Jeremiah Ndombi - Senior Legal Counsel Mr. Stephen Njenga - First Clerk Assistant Ms. Eunice Gichangi - Senior Legal Counsel Mr. Michael Karuru - Legal Counsel Ms. Mary Mwathi - Hansard Reporter Mr. Said Waldea - Hansard Report Mr. Zakayo Mogere - Second Clerk Assistant Mr. Samuel Njoroge - Second Clerk Assistant Ms. Rose Mudibo - Public Relations Officer
(Prayers)
(The meeting convened at 9.30 p.m.)
The Clerk of the National Assembly (Mr. Gichohi): Good morning, hon. Members. I hope that you had a good night. We have 21 Members of the Committee. I understand that the other four are on the way.
Mr. Chairman, Sir, Mr. Vice-Chairman, Sir, Hon. Members of the Committee. Let me take this opportunity to once again welcome to this retreat, which is very crucial to our constitution-making process. According to Section 32(1)(c) of the Constitution of Kenya Review Act, 2008, the Committee is expected to deliberate on the Revised Harmonized Constitution Draft, which is the final draft.
The Office of Mr. Speaker has availed a Secretariat from Parliament. We have four senior officers from the Legal Department to assist this Committee. From the Clerks Department, we have the Deputy Director, Committee Services, and other officers. The HANSARD is also here. We also have officers from the Research Department to assist the Committee achieve its mention.
Under the provisions of Standing Order No.186, the Speaker has directed me to convey to the Committee the message that in case you need to engage experts, the request should be made to Mr. Speaker and Mr. Speaker will make the necessary decision to facilitate this Committee.
Mr. Chairman, Sir, this is a Committee of the House, and you are expected to work within the procedures and provisions of the Standing Orders.
Allow me to inform the Committee Members on the documents that are available in your folders as you proceed on this very important exercise. The first document in your folders is the Revised Harmonised Draft Constitution. The folder also contains the Final Report of the Committee of Experts, the Harmonised Draft Constitution, the Wako Draft, the Bomas Draft, the Naivasha Accord, the Constitution of Kenya Review Commission (CKRC) Draft of 2002; the Constitution of Kenya Review Act and the amendments thereof, as well as the Standing Orders.
Those documents, among other documents that you will need for this particular workshop, should be available in the folders.
We have the programme that we are going to follow in the course of the week, and in the course of next week, because the Committee has a deadline within which to present its final Report to the Committee of Experts (COE).
Mr. Chairman, Sir, I do not intend to speak for long. So, allow me to invite the Vice-Chairman of the Committee, the hon. Ababu Namwamba, to make his remarks and invite you to also make your remarks before the Committee starts its work.
The Vice-Chairman (Mr. Namwamba): Thank you, Mr. Clerk.
Mr. Chairman, Sir, hon. Members. It is my pleasure to have the opportunity to make a few remarks before we commence this very historic exercise. We can say quite literally that the eyes of 40 million Kenyans are trailed on the Great Rift Valley Lodge, Naivasha, from this moment until this exercise closes. We sit here, literally, holding the hopes of a nation and, perhaps, the future of the stability of this nation, too. Many Kenyans out there are waiting with abated breath to see white smoke bellowing out of this lodge. It is a historic responsibility.
Hon. Members, as we commence this exercise, I just want to remind you a little history. This Parliamentary Select Committee (PSC) is the Fifth in the long chequered attempt by this country to adopt a new constitution since 1999. In the past, each of our four predecessors has failed to crack this jinx right at the very critical moment – the last one at the very last hurdle when we went to the referendum in November, 2005.
On the 17th day of December, 2008, Parliament constituted this Fifth PSC. For over one year, we have carried the responsibility to steer what we have come to call “Agenda Four Reforms.” We have performed exceptionally well, in my humble opinion. We have managed to put together various critical organs for the Agenda Four Reforms. As a Committee, through consensus, we have put together the COE that has given us the draft that we settle down to discuss today. We have put together the Interim Independent Electoral Commission (IDEC), the Interim Independent Boundaries Commission (IBIS) and the Special Tribunal to resolve constitutional disputes.
All those tasks have been accomplished by this Committee through an admirable spirit of consensus or give and take. We have hardly had to take a vote on any of these critical decisions. We have sat in this Committee and elected not to act as delegates of our political parties, but rather as humble servants of the people of Kenya. We have taken decisions that have largely mirrored the hopes and aspirations of our land.
Today we sit here to tackle, perhaps, the hardest hurdle in the task that Kenyans have bestowed upon us, through the National Assembly: The task of finding a compromise on getting a new constitutional dispensation for our land.
I am personally aware that we meet here amidst a lot of scepticism from out there. There are Kenyans who believe that we are just another grouping of politicians that will be encumbered by the usual difficulties that politicians are encumbered with ordinarily. There are those who are right now clouded by the controversy that has beset this process for years.
I just want to tell fellow Kenyans that making a constitution is neither a church service nor a wedding. It is a difficult task that involves negotiation for configuration of state power. Anything that involves configuration of state power cannot be expected to be easy. Sometimes I am surprised when Kenyans express shock and surprise at the hard negotiations that have been informing this process. It must be so, because this exercise cannot be handled in any other way. We must negotiate; sometimes heatedly.
Any student of constitution making will tell you that there has never been a process like this one that has been achieved easily. We are often reminded of the great character of the American Constitution. What we are never reminded of is the difficult process that the Americans went through in putting together that Constitution that we admire so much.
When on 25th May, 1787, 55 delegates from 13 colonies gathered in Philadelphia, Pennsylvania, to write a constitution for the United States of America, controversy had informed the very convening of that convention. There were controversies on taxation and representation. Certain states like Rhodes Island refused even to be represented. Rhodes Island feared that the constitutional convention was going to take certain decisions on taxations on taxation that would compromise the stability of Rhodes Island as a state. There were sceptics during that process. One of them, Patrick Henry, refused to attend that convention for what he said, and I quote him: “I smell a rat in Philadelphia that tends towards retention of a monarchy, and so I shall not attend.”
Thomas Jefferson, who would later on rise to become President of the USA, who was at that was the Minister of the USA to France, refused to attend and described that convention as “an assembly of demy gods that hardly represent anybody.”
However, there were leaders who believed in that process and encouraged the delegates gathered in Philadelphia. One of them was John Adams, who would later become the Second President of the USA. At that time, he was Minister of the USA to Great Britain. He did not attend because of state functions, but he constantly wrote to the delegates in Philadelphia to encourage them.
James Madison initiated the very idea of the 13 states meeting together to re- configure articles of confederation into a new government. He encouraged his fellow delegates throughout, even during the most difficult moments of negotiations.
Alexander Hamilton was the other leader who stood up to be counted as an American, and constantly reminded the delegates that they were putting together a constitution that they should desire generations of Americans hundreds of years later to be proud of.
So, not for one week, but for months, from 25th May – 17th September, 1787, these delegates sat in Philadelphia, where they haggled, argued and gave in an attempt to write a new constitution. When they first met, the goal was merely to fix the existing arrangement – the Articles of Confederation, but in their deliberations, they realised that they had a historical opportunity to re-configure the very nature of American Government. So, they ended up giving the USA the constitution that we love to hail as a landmark in constitution making.
Among the difficult issues they had to do deal with – what we call contentious issues in Kenya – was the issue of slavery. Were they to put the issue of slavery in the constitution? If they were to put the issue of slavery into the constitution, how was it to be dealt with? Were they to abolish it? Were slaves to be counted as citizens? Southern states that heavily depended on slavery, 40 per cent of whose population were slaves, insisted that slaves should be counted for purposes of representation, but not for purposes of taxation. States that hardly had any slaves insisted that slaves should be counted for purposes of taxation, but not for purposes of representation. Southern states insisted that if slavery was not included as an issue, they would pull out of the confederacy.
So, compromises had to be struck, and members of that convention came up with all sorts of compromises. Delegates from Virginia brought together the great Virginia compromise, and New Jersey delegates brought the New Jersey compromise, none of which was pleasing to the delegates. Connecticut brought the Connecticut compromise, which married the Virginia compromise and the New Jersey compromise, and that compromise was eventually adopted by the convention.
At the end of it, they put together what they called “committee of detail” to put all those agreements in a draft, which was again debated for a whole month. That draft was given to what they called “committee of style and arrangements” that eventually refined and gave the convention the draft.
Why am I boring you with all this history? Because it is important for us to understand as we commence this great national task – that making of any constitution is not easy. Every society must confront issues of the moment that will, by their very nature, be controversial. We have issues here about the configuration of our executive, devolution, public finance and other matters that have taxed and which must continue to tax our conscious and minds.
However, we must rise and address those issues, and proudly so, as leaders and Kenyans. We can sit here and choose to represent our various political blocks. You can choose to sit here and push hard and furiously, the position of your political parties, or the position of your ethnic community, or the position of your region, but think and imagine what good that will bring unto you and unto this nation ultimately.
When Nelson Mandela walked off Robin Island, he told the people of South Africa: “Sometimes it falls on a generation to be great. You can choose to be that generation.” It has fallen on the 27 Members of this Committee to break the jinx of giving this country a new constitution. We can choose to, finally, be that PSC that broke that jinx and gave this country a document they can be proud of today and to posterity.
Thank you very much. Mr. Chairman: Thank you, Mr. Ababu Namwamba for that eloquent speech. I thank Members of the Committee for the support you have afforded to me and my Vice-Chairman throughout the last one year in co-ordinating the functions of this very important Committee. We have no doubt about the enormity of the task ahead of us, but we are very confident that we are able and equal to that task.
I want to go to the specifics of the objects of the constitutional review process, and especially the objects of our meeting today. The law that we crafted clearly sets out those objects. The objects of the constitutional review process are to guarantee peace, national unity and integrity of the Republic of Kenya in order to safeguard the well being of the people of Kenya. They aim at establishing a free and democratic system of government that guarantees good governance, constitutionalism, and the rule of law, human rights, gender equity, gender equality and affirmative action.
The review process is meant to recognise and demarcate divisions of responsibility among the various state organs, including the Executive, the Legislature and the Judiciary, so as to create checks and balances amongst them and ensure accountability of the Government and its offices to the people of Kenya.
The objects are meant to promote the people’s participation in the governance of the country, through democratic free and fair elections, and the devolution and exercise of power. They aim and respecting ethnic and regional diversity and communal rights, including the rights of communities to organise and participate in cultural activities and express of their identities.
We hope, through this process, to ensure the provision of basic needs for all Kenyans through the establishment of an equitable framework for economic growth and equitable access to national resources. We have to promote and facilitate regional and international co-operation to ensure economic development, peace, stability, democracy and human rights.
The process is intended to strengthen national integration and unity, and create conditions conducive to free exchange of ideas.
It is hoped that, through this process, we will ensure the full participation of the people in the management of public affairs and committing them to peaceful resolution of national issues through dialogue and consensus. This sets up four entities to drive the process: The COE, the PSC, National Assembly and the Referendum. We are to perform our functions through a set of principles. We are supposed to ensure that:-
(i) the national interest prevails over regional and sectoral interests; (ii) the review process accommodates the diversity of the people of Kenya, including social-economic status, race, ethnicity, gender, religious faiths, age, occupation, persons with disabilities and the disadvantaged. (iii) the review process provides the people of Kenyan with an opportunity to actively, freely and meaningfully participate in generating and generating proposals to review and replace our Constitution; (iv) we are guided by the principle of stewardship and responsible management; (v) we are subject to the Act; (vi) we conduct in an open and transparent manner, the review process; and, (vii) the process is guided by the respect for the principles of human rights, equity, equality, affirmative action and democracy.
Most importantly, we are to ensure that the outcome of the review process, faithfully, reflect the wishes of the people of Kenya.
Hon. Members, that is the mandate that we have. In exercising that mandate, we are to be guided by the Act, the Constitution and our Standing Orders. As I said earlier, we have no illusions about the enormity of our task but I believe that we are capable of undertaking that task. At this great venue, great results are expected of us. I am sure we can achieve them.
At this point, I will ask members of the Press and non-Members of Parliament, except for members of the Parliamentary Staff, to leave us, so that we can go into the details of our programme.
Thank you very much.
(Members of the Press and others withdrew from the Committee Room)
END A
MWM B - 1. 18.01.2010 Mr. Chairman: Let me thank you once more for attendance and welcome you to this beautiful part of this country. On behalf of the Member for this area, hon. Mututho, let me welcome you to Naivasha. He was here with us yesterday and you will have an opportunity to meet him later in the day. I wanted us to agree on a few housekeeping issues so that we can be together as we go on. This, indeed, is a Parliamentary Committee meeting. Therefore, our rules will be as per the Standing Orders and we will be open to the Membership of the PSC. Of course, other Members of parliament are free to walk in and sit in on the deliberations but we are closed to members of the public including members of the Secretariat or any experts anybody might have come along with. This, indeed, will be only Members of Parliament and especially Members of the PSC. This is a Parliamentary Committee meeting and therefore we will go as per our rules and as we had gone on before. In the event of very stringent discussions we will have break-out sessions. We have break out rooms ready if we go into any of those sessions.
We intend at the starting point to deal with the process as set out in the Act, which is that we have 21 days to consider the Report and the Draft from the Committee of Experts. We are to deal largely with the contentious issues but the contentious issues are so large that it will entail dealing with a lot of stuff. So, I am hoping that we can go sequentially through all the issues because we are supposed to deliberate and reach consensus. So, our proposal is that we go through sequentially from Article 1 up to the end, but our key role is to deal with the contentious issues and have consensus on them. What is in contention as stated in the Report is what form of Government. Namely: Executive, Parliamentary, Hybrid or any other. That is in contention. It is our mandate to deal with that and come to a consensus.
Secondly, Devolution in all its forms and in everything that it touches including financing. Therefore, the Chapter on Public Finance also comes in. Thirdly, there is the transitional mechanisms and Transitional Clauses. Those will be our key focus but if you will realize, they will pull in a number of other Chapters, for example, the Chapter dealing with Representation will feature when we are dealing with the form of Government. The Chapter on Public Finances will feature when we are dealing with Devolution. So, we are proposing that we go through the whole process that way. Secondly, the Act was not specific to how our communication back to the Committee of Experts states. So, we are proposing that instead of doing a report, we do another draft essentially so that we have the COE draft and we now do a draft from the PSC back to the COE, so that we do not have any further discussions at that end. Then we shall have a report to indicate why our views are those. Therefore, it will mean that whatever we do to save time, if there are any proposals for amendments, we will want them in writing so that we put everything on record.
We have members of staff both from the Legal side and from the Clerk’s office to take down any proposed amendments very fast. We will not insist on perfect drafting or perfect language or even typing, but to keep a record so that our decisions can follow the Standing Orders. We are hoping to have discussions first before we go into the details on some of the key Chapters. We are hoping to have extensive discussions so that by the time we are going into the Chapter itself, we will have a general agreement as opposed to fighting over Clause by Clause then we go to the amendments to the Clauses, so that if we agree, for example, on one form of government, we do the discussions first and agree whether we go Parliamentary, Presidential or hybrid and once we have got political agreement, we then go into Chapter by Chapter and even at that point, we still get Motions on paper and then secondment and then we debate and then whatever we resolve, it is taken down as the resolution of the Committee.
Finally, we have developed a tradition of agreeing on everything by consensus up to now. I do not hope to have to vote on anything so that we will take as long as it takes but we harmer it until we reach consensus. I do not know whether I have forgotten anything else in terms of the housekeeping matters, but once we break out, we will have a photo session and maybe a cup of coffee. When we come back, we will go through a synopsis of the report of the COE from the Vice-Chairman just to bring everybody on board and thereafter, we will get the head off of the Legal Team and myself to go through the first Clause up to about Article 7. The first Articles are not very contentious. In the Report of the COE, they are considered as not too contentious. They deal with issues that are not too hot. They deal with a Preamble, Chapter 1 dealing with the sovereignty of the people and the supremacy of the Constitution, Chapter 2 dealing with the Republic, Chapter 3 dealing with National values and culture, Chapter 4 dealing with citizenship, Chapter 5 dealing with Bill of Rights and Chapter 6 dealing with Land and Environment and Chapter 7 dealing with Leadership and Integrity. We hope to go through those today. They are not considered contentious, but we have heavy issues like the Bill of Rights and Land.
Then tomorrow is when we have the hot stuff. We will deal with representation of the people, legislature and the Executive and the Judiciary, if we can. The early bit of the morning, I am hoping we can do the political discussions and if we agree, we move forward. If we do not finish any day’s work, it goes to the next day. You realize that if we do today’s work, we will have gone beyond Page 100 of the draft. So, if we can make progress today, we will have gone through almost 40 per cent of the written work of the draft. But the key political decisions will be for tomorrow.
Thank you very much. I will listen to any views. Otherwise, we go for the photo session and tea and we come back and start work.
The Assistant Minister, Ministry of State for Defense (Mr. Musila): Mr. Chairman, Sir, when we start counting from page 1, is it from 8 or from today?
Mr. Chairman: We have 11 days remaining. The Assistant Minister, Ministry of State for Defense (Mr. Musila): Then we have a short period.
Mr. Chairman: We have 11 days.
The Assistant Minister, Ministry of State for Defense (Mr. Musila): That is the point I wanted clarified because we appear to be short of time. What will happen if, I am not anticipating that, but in the unlikely event that we do not finish our work within these 11 days, what are we likely to do?
Mr. Chairman: I am hoping we will finish, but can we cross that bridge if we realize that we cannot. As of now, I do not see why we cannot finish, but if we at any point realize that there is a problem with finishing, then this is a Committee of Parliament and these are the political leaders of the country. We have a lot of leaders. We have the Constitution, the National Assembly fully behind us and the Standing Orders and the Act. The most critical thing in my opinion is for us to agree but I am hoping we can cross that bridge at that point.
Mr. Mungatana: Mr. Chairman, Sir, the issue of proposing amendments, just for clarity of mind; are you saying that if I do not agree with, I agree or I want to make it better with Section1(i), we keep writing and passing the papers to you or what do we do? I wanted to understand that process.
Mr. Chairman: We have drafts people and a team from the Legal Department and all you need is to call them and indicate what you want to do while the other discussion is going on so that it is easy to keep track of the process. Otherwise, we will get lost in the process and then we also need to have records. This is still Parliament sitting and we need to keep track. This is a report and we are working from a document. So, we should all agree that we are working from the current draft that was sent to us. That is our beginning point. That is the document that the country has now. For any change, it must be on proposal, secondment, on a Motion and then a vote. Our entry point at the beginning is the contentious issues. So that we can deal with these properly, let us go sequential.
Mr. Orengo: Mr. Chairman, Sir, (inaudible) ---but there are some provisions in them which relate to the Executive, the Legislature and even the Judiciary. So, I do not know, maybe after we finish the other Chapters, you may have to come back because the broad picture is contained in the first Articles.
Mr. Chairman: Yes, indeed, I agree with you hon. Orengo. In fact, we struggled with that when we were trying to agree on how to do the process and we were looking at whether it is possible, once we have gone through, to give ourselves a day or two before because we are also hoping that once we have done the document, for purposes of design, somebody has to look at it from end to end, so that it is a good design also. We were wondering whether we should get somebody else who is an expert to look at that, but ultimately, once we are done we have to look at the whole thing so that it is one document.
The Assistant Minister for East African Community (Mr. Munya): Just taking it from where hon. Orengo has left, many of the Chapters will touch on the structure and perhaps the most contentious issues that we have is actually the system of government, what would be wrong with starting with that so that once we are agreed on that, then it is a question of cleaning up? This will make our work easier because it means that if we start with others Chapter by Chapter we will have come back.
Mr. Chairman: First of all, if we do what we are hoping to do today, it is just up to tomorrow because we will not wait for too long before we go into the meat. But we are hoping to start so that we gain momentum by the time we reach those ones so that we have a few successes under our belt by the time we are hitting the Executive and the Legislature. Then it will help us to go through. I am hoping we can touch on every Article in this Constitution by the time we are through. Once we do those big ones, a number of us might also till out, so we can start with these ones. I will give the Clerk a chance.
The Clerk of the National Assembly (Mr. Gichohi): Mr. Chairman, Sir, we will make the current Constitution available to all Members. The other item, which is very important, is that the minutes of this Committee, which are equivalent to the Votes and Proceedings of the House, should be confirmed the following day. So, whatever you do today, before you start business tomorrow, those votes and proceedings have to be confirmed for accuracy and to be part of the records of the House. The other important thing is what I had said that under the Standing Order No.186, you have that window in case you need experts. The only thing that you need is the Speaker’s approval for us to get them on board. The other small issue is basically logistics of your workshop. You are basically here for this week but if you are to be here next week, that is fine. We have taken two issues. We are providing lunches for your drivers and bodyguards. Their lunches will be served here so that they do not have to go down to Naivasha. Secondly, we are also making arrangements for night outs for your drivers and body guards. So, I would request that you register them at the entrance or you can ask some of our staff to register one body guard and a driver for each Member for us to give them night outs to that they can get a place to sleep.
Finally, you have the full Secretariat here including the Sergeant–At-Arms. So, you are in a full Session of the House. You are almost 30 Members and you have a quorum of the House and in case you need our support or anything else, inform the office and we will facilitate what you require to do your work. We have the HANSARD who are recording word for word what you are saying. You have the Research Department, the Legal Department and the Clerks who are going to clerk this Committee for the rest of the two weeks that you will be here.
Mr. Chairman: Let me thank the Clerk and his staff, especially the ladies and gentlemen who have been putting through documentation. You will have annotated draft which gives you every Article and then compares it to every other draft that has been there, namely, the Bomas, The Wako, the Revised Harmonized Draft, so that you look at an Article and see whether it has changed through that process, how it has changed and whether we want to keep it there. That is the working document that we will have. We have the Article on the Harmonised Draft and then you look at it as how it is in our current Constitution, how it was in Bomas, in Wako and what the differences are. So, I want to thank them most sincerely for the good work that they have done. Let us go out for a group photo, a cup of tea and then come back for good work.
(The Committee adjourned at 10.00 a.m. for photo session and tea Break)
End B
GWS D.1 – 18.01.2010.
The Assistant Minister for East African Co-operation (Mr. Munya): To arrive at that, please at least combine those two.
Mr. Chairman: Now, we hear that you are not for it. Let us listen to Hon. Sophia Noor and then we move on because we need to make headway.
Ms. Noor: Thank you, Mr. Chairman. I did not want to contribute at this stage but I was provoked by what my brother Peter said particularly that we are proud of our ethnicity, culture and diversity. I think this has strained this country hard. We must not be in denial. We have differences but we must accept them. We should accommodate and respect each other. That is our strength and we must have it in the preamble.
Mr. Chairman: Okay, then we can have the Vice-Chair and we close it.
The Vice-Chairman (Mr. Namwamba): Mr. Chairman, Sir, quite briefly, in classical constitutional making, we know that preambles have come to reflect the spirit of the constitution setting the tone for national aspirations right there. When you open the constitution, you can see what a nation aspires to and that is not different with this preamble. However, I also want to also agree with hon. Mungatana that there is a lot of repetition and even if we do not adopt this Motion, I think we need to make a note that any areas that may unnecessarily repeat what is already in the preamble, we can amend but I would support the Motion to retain the preamble.
Mr. Chairman: So, can we then put this Motion: “That the preamble be deleted?”. That is the Motion. From the way things are going, the Motion has not got a lot of support. Is that the feeling I get? It has been negatived because we do not want us to go to vote. Hon. Mungatana and hon. Kioni, have you conceded on that? This is because I want us to agree on this decision before we come to agree. So, can we then say that they withdraw the Motion so that we do not have to vote on that?
Mr. Mungatana: That is okay, Mr. Chairman.
Mr. Chairman: They have conceded. So, let us now go to amendments. They are two. One is by Mr. Wetangula in terms of amending the third narrative. Since it has already been debated, just put the Motion, we get a seconder and move forward.
The Minister for Foreign Affairs (Mr. Wetangula): Mr. Chairman, I propose that in the Third Narrative, we delete the words “and other”.
The Minister for Higher Education (Dr. Kosgei): seconded.
Mr. Chairman: The Minister for Higher Education is seconding. Is that carried?
Hon. Members: Yes.
Mr. Chairman: That is carried. So, we move to the next. So, the amendment therefore is that: “Proud of our ethnic, cultural religious diversity”. Then we go to hon. Munya who wanted another amendment. Could you propose the amendment you wanted?
The Assistant Miniser for East African Co-operation (Mr. Munya): Mr. Chairman, my amendment was to combine “Proud of our ethnic, cultural and religious diversity” with the next narrative so that it reads as follows: “Proud of our ethnic, cultural and religious diversity and determine to live in peace and unity as one indivisible sovereign nation” .That is the way it was before it was amended.
Mrs. Noor: seconded.
Mr. Chairman: That is seconded by hon. Noor. Is that carried?
Hon. Members: Yes.
Mr. Chairman: Okay. Do you have anything else to add because we need to move away from the preamble.
Mr. Kioni: Mr. Chairman, Sir, I just have one issue. On the last narrative which states: “Give to ourselves and to our future generation this constitution”, I want to add the words: “commit ourselves to respect, uphold and defend it”. I think my opinion will make it more complete.
Mr. Chairman: Hon. Kioni is adding a number of new words. Can we get a seconder for it first of all. We will go to Chapter 1 when we reach there but now we have that proposal. Can we agree on it. Can you get a seconder first of all?
Mr. Ruto: seconded.
Mr. Chairman: Is it carried?
Hon. Members: Yes.
Mr. Chairman: Let us get to the full reading from hon. Kioni.
Mr. Kioni: “Adopt, enact and give to ourselves and to our future generation this constitution and commit ourselves to respect, uphold and defend it”.
Mr. Chairman: Agreed? Is it carried therefore? The Assistant Minister, Ministry of State for Defence (Mr. Musila): Mr. Chairman, Sir, just before we carry it, I just want to draw the attention of my colleagues that in Chapter One which is Defence of the Constitution, that is 3(i), it states: “Every person has an obligation to respect, uphold and defend this constitution”. So, I think what my friend has done is to remove that from there to the preamble. Therefore, when we reach there it will be repetition that we have talked about.
Mr. Chairman: We will deal with it there because there are issues about the suitability. The preamble might not be part of the document itself in terms of legality but we will reach there. Can we first of all adopt that?
The Minister for Foreign Affairs (Mr. Wetangula): Mr. Chairman, Sir, I want to persuade Mr. Kioni to abandon his move because Article 3 of Chapter One does not just talk of “respect, uphold and defend” but it also gives meaning to the AU Constitutive Act that outlaws unlawful changes on government by overthrowing constitutions. So, I think we better leave it in Article 3.
Mr. Chairman: So, essentially it is an amendment to his amendment? Hon. Kiunjuri and then hon. Orengo and then we close this debate.
The Assistant Minister for Water and Irrigation (Mr. Kiunjuri): Mr. Chairman, I wondering what you have said before that the preamble is not subject to any retribution and these are just aspirations. When it comes to 3(i), it is very clear that you must respect and uphold and if you remove it now, somebody can argue that he has no obligation to the constitution. So, I believe you better leave it where it is because it has more meaning and emphasis.
Mr. Chairman: Only that it could appear in both places and still be okay also.
The Minister for Lands (Mr. Orengo): In the spirit of not having a voluminous document, the spirit of what is contained Article 3 is also found in Article 2(i). It reads: “This constitution is the supreme law of the republic and binds all state organs at all levels of government and all persons”. So, I think this is enough. Mr. Kioni: Mr. Chairman, Sir, I withdraw it.
Mr. Chairman: So, can we record that that Motion has also been withdrawn? I have received hon. Mungatana’s proposals in writing. I will get the others so that we can put them together. Can we now get a proposal for the adoption for the preamble? It is proposed by hon. Ms. Amina Abdallah and seconded by the Minister for Foreign Affairs? Is that Motion carried? Is it adopted as amended?
Hon. Members: Yes.
Mr. Chairman: Let us go to Article 1 and I will get back to Mr. Nyengenye.
Mr. Nyengenye: Thank you, Mr. Chairman. Chapter 1 beginning on page 16, we begin by a remark or observation broadly that in the Bomas Draft and the Proposed New Constitution (PNC) that was defeated in the referendum, there was that Article titled “Laws of Kenya” which was found in Article 3(A) of Bomas and Article 3 of the PNC has been dropped from the Harmonised Draft and the Revised Harmonised Draft. Moving on then to Article 1 which is “Sovereignty of the People”, we observed that Clauses 1 and 2 of the proposed new constitution and the Bomas Draft refer to sovereign authority rather than sovereign power which we find in the Harmonised Draft as well as the Revised Harmonised Draft. We also observed that Clause 3 has been re-drafted to take account of the reduced levels of devolved government. It is a consequential amendment. We also observed that reference in paragraphs C and D of Clause 3 in previous drafts to namely the PNC, Bomas and Harmonised Draft to independent tribunals, constitutional commissions, independent offices and other state offices is omitted in the Revised Harmonised Draft.
Mr. Chairman: Thank you very much. Having that in mind, let us read the Article together so that if there any issues as the hon. Orengo had earlier said, you will notice that this is also linked to the form of Government in terms of devolution. So, we might want to agree on it here or hold it so that when we deal with devolution and the form of government, whatever decisions we take at that point can be reflected here. One, Article 1(i) on Sovereignty of the People, states: “All sovereign power belongs to the people of Kenya and should be exercised only in accordance with this constitution”. As had been indicated by Mr. Nyengenye, in some of the earlier drafts, it was “all sovereign authority”. They have used “all sovereign power” as far as that Article is concerned. Two, the people may exercise their sovereign power either directly or through their democratically elected representatives. Three, authority under this constitution is delegated to the following state organs which perform their functions in accordance with this constitution. A) Parliament and the Legislative Assemblies in the county governments. At that point, that is devolution and we have not gone there. So, whatever we agree will be reflected here. B) The national executive and the executive structure in the country government. Again, this should be tied to that one. C) The Judiciary. Are there any issues noting that one, there are a bit of changes there and two, a number of the issues dealing with devolution, we will substantively deal with them tomorrow? We could propose for these to be deferred until we deal with the other one. We could propose for these to be deferred until we deal with the rest.
Mr. Nyengenye: So, be it.
The Minister for Lands (Mr. Orengo): Mr. Chairman, if you look at the formulation of this particular article, somewhere where there is exercise of power or doing some act, there is always a formulation at the end in accordance with this constitution or authority under this constitution. If you look at sub-article 2 (ii), it says: “The people may exercise their sovereign power either directly or through their democratically elected representatives”. Now, when they exercise power directly, that can cause a lot of problems because if the people meet at Kamukunji and declare that they are exercising their sovereign power directly, they would use the authority of this provision. So, I think the formulation in accordance would be critical because even the constitution spells out how the people will act. It may be seen as a repetition but I think the formulation is found in all the sub-article.
Mr. Chairman: Absolutely. So, if I was to get you correctly, your feeling is that the people may exercise it directly through a referendum but you want that cleared so that it says “in accordance with the constitution?
The Minister for Lands (Mr. Orengo): Yes, Mr. Chairman. Mr. Chairman: So that if it is through a process already set, that is okay but not through a mass in some place?
The Minister for Lands (Mr. Orengo): Mr. Chairman, in fact, hon. Mrs. Millie Odhiambo has got a point which reinforces this. Allow her to say it but whatever I am saying is that if you saying accordance, you are safer because I do not think the people shall act only through a referendum. If you look at the areas to do with amendment of the constitution, there are amendments which can be generated by the people which is not necessarily a referendum. So, in order to cover all that, it is safe to say “in accordance”.
Mr. Chairman: Okay. Let us hear from hon. Millie Odhiambo and then we can put your proposal now in the form of a motion.
Mrs. Odhiambo: Mr. Chairman, I had actually underlined that and the reason I had done that is because it could actually give room for instance for secession. That I can decide to go and stand in Suba and say that all Suba Islands are exercising our powers directly and I am the president of Suba. So, from the way it is formulated, that is actually a possibility.
Mr. Chairman: Then let us get a proposal from the hon. Orengo for amendment of Article of 1(2).
The Minister for Lands (Mr. Orengo): Mr. Chairman, then it could probably read as follows: “By the addition of the words, “in accordance with this constitution” after the word “representatives”. That is between the full stop and the word “representative”, you insert the words “in accordance with this constitution”.
Mr. Chairman: Or you begin with those words?
The Minister for Lands (Mr. Orengo): They are better at the end.
Mr. Chairman: So, we have a proposal that we have those words at the end. Seconder! Mrs. Odhiambo: seconded.
The Assistant Minister of State for Defence (Mr. Musila): Mr. Chairman, Sir, I thought the danger was people directly exercising power as amplified by the proposal and even by hon. Mrs. Millie Odhiambo. I thought we should remove this directly so that they would exercise their power through their democratically elected representatives. I am just asking the proposer whether that makes sense to it so that we may have only one proposal.
The Minister for Lands (Mr. Orengo): If you remove it, then that power to act directly would be in the body of the constitution but not in the preamble. In fact, this particular article deals with the sovereignty of the people. So, it is important to say how the people exercise that sovereignty and all through it is in accordance with the constitution.
Mr. Chairman: So, I will get the exact wording from hon. Orengo but can we say that the amendment is carried?
The Minister for Foreign Affairs (Mr. Wetangula): Mr. Chairman, I just want to ask my learned senior, Mr. Orengo whether we really even need that clause because Clause 1 says that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this constitution. So, sub-article 2 is actually superfluous. So, perhaps we should just delete it all together instead of loading the constitution with many phrases.
Mr. Chairman: So, can you then propose and if it stands defeated then we can go back to hon. Orengo’s proposal?
The Minister for Foreign Affairs (Mr. Wetangula): I propose.
The Minister for Water and Irrigation (Mrs. Ngilu): seconded.
Mr. Chairman: Then the proposal is deletion of sub-article 2. So, can I suggest that in arguing for it to be kept that as much as possible we should keep whatever is not very controversial in the draft so that we can go along with the proposals from the Committee of Experts (CoE) as much as possible? If you can cure that problem with the amendment proposed by hon. Orengo, let us cure it as opposed to?
Mr. Ethuro: Mr. Chairman, this is one of those areas where you have a strong feeling without the ability to express it. I was looking at the learned friend, hon. Orengo, to assist us here. I thought really adding those particular words because I also come from another background where I know people are very clear that yes, sovereign power is with the people but how do we deal with it. We also want him to assist us in a particular way so that instead of it just being taken, we would like to see that expression either directly but then we put it in the context so that it is not misused. I think that was really the most important thing we wanted to address here. To remove it to me, I think would also bring other interests. Again, I am not as pessimistic the way I would want to.
The Deputy Prime Minister and Minister for Local Government (Mr. Mudavadi): Mr. Chairman, Sir, if you look at the first one, all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this constitution, it is not specific as to who exercises that power. So, the second paragraph is also now trying to qualify that the people can also exercise that power because the first one can just simply mean state organs exercising those powers in accordance with the constitution but it does not bring out the fact that the people can also exercise that power. So, if seen in that context, I would go by Mr. Orengo’s amendment and then we cure the problem.
The Assistant Minister for Water and Irrigation (Mr. Kiunjuri): Mr. Chairman, Sir, I want to support the position taken by the Deputy Prime Minister because definitely we are not even guiding Kenyans on whether there is any other act or law that can be able now to tie them when it comes to the question of exercising their power. Since we are not having an addition in Article 1 that exercises only in accordance with this constitution or any other laws, it is not clear where they can get it. It is important that we leave it as it is so that we can have Clause 2 but in addition according to Mr. Orengo’s amendment. Mr. Chairman: Before I give to hon. Orengo, Mr. Chachu will speak since he has not spoken today.
Mr. Chachu: Thank you, Mr. Chairman. I think we have to make a decision here in the sense that this revised draft has been referred to by Kenyans as being too repetitive and if we are to make a decision that we are going to produce a document as per our own contribution as the Parliamentary Select Committee (PSC) a document that is precise and at the end of the day really have the aspirations of the Kenyan people, then we have to make some decisions. All these recommendations are very good and persuasive but at the end of the day we have to make a decision. So, I think as we discuss this, let us agree whether we are going to have a document that is precise and not bulky or not because we may have to delete some and continue to have some in the document.
Mr. Chairman: The two gentlemen at the back are very active today. So, I will give the chance to hon. Munya followed by hon. Wetangula and then my Vice- Chair and then conclude.
The Assistant Minister for East African Co-operation (Mr. Munya): Mr. Chairman, I was just going to support his amendment which was also supported by hon. Orengo. Sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this constitution. That is completely enough. It already subsumes 2. In fact, 3 is clearly saying that it is this power which is being delegated to the organs that are being created by this constitution unless you do not want to end this thing and continue keeping unnecessary phrases that are repeating other phrases. One, it is enough. It takes care of that and if you go to other provisions where the referendum is referred, it is already obvious that it is that power that these people were exercising by going to the referendum, voting and doing all the things that people do.
The Minister for Foreign Affairs (Mr. Wetangula): Mr. Chairman, I just want to strengthen that argument that sub-article 2 is actually meaningless. The manner in which the people exercise the authority is in the body of the constitution. It is in the Legislature where they elect their representatives to exercise their authority. It is Article 303 where they can amend this constitution by a popular initiative and where we have referendum and so on. Also, if we really want to clean the document and make it leaner, easier to read and carry, then excess baggage and repetitive phrases and clauses should be weeded out.
End D
Take E
RON F.1 – 18.1.2010
The Minister for Foreign Affairs (Mr. Wetangula): Mr. Chairman, Sir, first, the point that Mr. Uhuru is raising is the same point that I and Mr. Orengo were consulting on; that our boundaries cannot be determined by international law. In the 1963 Constitution, it says that Kenya means the territory comprised in Kenya on 12th November, 1963 and the territorial waters of Kenya as for the time being defined by an Act of Parliament. Of course, you know our territorial waters have now extended by 350 kilometres.
Mr. Chairman: When you say 1963 does it not include the limit rank?
The Minister for Foreign Affairs (Mr. Wetangula): Mr. Chairman, Sir, it does not include many things. I do not know the formulation but we should delete any reference to international law as a determinant to our national boundaries.
The Minister for Higher Education, Science and Technology (Ms. Kosgei): Mr. Chairman, Sir, as far as I know, in 1943 when the --- left to review the situation where Kenya was addressed in that forum, Southern Sudan was recognized part of the country, I know that this caused a problem when we negotiated with Sudan close to their handing over to us in 1943. So we must refine the international law ourselves.
Mr. Chairman: So, do we then seek a drafting that requires that to be sorted out in a Schedule? We can work on it for us to agree on the drafting. Mr. Ethuro: Mr. Chairman, Sir, I was just saying that the drafting should take into account what the Minister has said.
Mr. Chairman: The drafting will take into account our national interests.
The Minister for Lands (Mr. Orengo): Mr. Chairman, Sir, I am very happy with the position that was articulated by Mr. Wetangula and Mr. Uhuru. As we speak today, the only boundaries that can be said we have recognition under international law are the ones as stipulated. Otherwise, even the Ugandan border with Kenya, there is a lot of controversy although according to the Constitution, those boundaries in the interpretation are quite clear. So, we need either in the Constitution or in the Statutes to spell out our boundaries. The relation that is important is that we should move with the Constitution.
Mr. Chairman: So, should we have a Schedule in the Constitution?
The Minister for Lands (Mr. Orengo): Yes or an enabling provision in the Constitution.
The Minister for Justice, National Cohesion and Constitutional Affairs (Mr. M. Kilonzo): Mr. Chairman, Sir, I want to thank you. Most Kenyans are aware of the boundaries of Migingo and Southern Sudan but we also, in fact, have a problem with Tanzania, particularly in the Kuria area. People will be surprised that one of the judges removed by the radical surgery was removed on account of not respecting the boundary and declaring a Tanzanian a Kenyan. Therefore, even that part of it - though the beacons have been removed - there is always survey and it has never been completed. So I agree entirely that even the Schedule must be looked at very carefully. Otherwise, we may end up ceding our own land.
The Minister for Foreign Affairs (Mr. Wetangula): Mr. Chairman, Sir, I would want us to find the best way of formulating even what goes to the Schedule because most modern constitutions describe the boundaries of the State in the Schedule but we have not. Mr. Orengo will tell you that he is on overdrive on this to demarcate our international boundaries so as to reach a level of putting them in the Schedule. So, we need to find a way as we go towards 2011, which is the deadline for every country to determine its international boundaries with its neighbours. We should find how that will find its way into the Constitution even after we pass it and go through the referendum. So, this Committee should guide the country so that we have that achieved when we finish the demarcations because we have not done with Sudan, Tanzania, Somalia and Uganda. Mr. Chairman: The CKRC Draft had attempted to do this in a Schedule; to try and get the boundaries marked in the schedule; the first schedule of the CKRC draft but I think we need better drafting and better drafting and we need to agree that it should be in the Constitution.
The Minister for Lands (Mr. Orengo): Not even a schedule because the boundaries have been demarcated and this idea of putting beacons is also losing face. There are new systems so all that we can do is to have an enabling provision. If we finish our work early enough, then through that enabling provision, we can have a statute which will then set out---
Mr. Chairman: Can we then tell our drafters to look at the schedule in the CKRC draft which had attempted to define the boundaries?
The Minister for Lands (Mr. Orengo): That will not be accurate! Do not look at that because it will not be accurate. Let me tell you that in some documents you will find, for example, the boundary between Uganda and Kenya described by way of some feature, even an anthill or a river. If you go there today, that anthill or that river is gone. So, there are a lot of features which were used to describe our boundaries which have since disappeared so even that for purposes of determining our boundaries will not be accurate.
Mr. Chairman: Okay, so we get a drafting that gives constitution backing. So let us bracket that until we see that. We are now going to devolution!
The Assistant Minister, Ministry of State for Defence (Mr. Musila): Mr. Chairman, Sir, before we go to devolution, do we take it that No.5(2) is going to be bracketed?
Mr. Chairman: No.5(2) for purposes of devolution, we will get back to it but we will also bracket 5(1) until we get better drafting. So, the whole of that article is bracketed. The reason why we are redrafting it is that so can delete that mention but replace it with something legalese.
The Assistant Minister, Ministry of State for Defence (Mr. Musila): Understood!
Mr. Chairman: Let us go to devolution! Mr. Nyengenye: On devolution, again the article has changed in the various drafts in line with the changes in the levels of devolution. Again also Bomas and PNC referred to sovereign authority of the people while the Revised Harmonized Draft on the Harmonized Draft refer to sovereign power.
Mr. Chairman: So since we will be dealing with devolution substantively, we better bracket the whole of this until we agree on the mode of government and levels of government. Is that agreed?
Hon. Members: Yes!
Mr. Chairman: Then let us go to 7; the Capital of Kenya is in Nairobi. Does this really need to be in the Constitution because we will require a Constitutional amendment if the Government decided tomorrow that they wanted to move to a better site? Can I get a proposer? Can we hear Mr. Mungatana first?
Mr. Mungatana: Mr. Chairman, Sir, in fact, I had filed a Motion with you to amend that Article 7 to give Parliament power to move it with a simple majority but I think your proposal is even better. We should just remove it; let it be a matter of legal---
Mr. Chairman: So, can I get a proposer and seconder?
Mr. Mungatana: I propose!
Mr. Chairman: Ms. Odhiambo is proposing the deletion seconded by Mr. Mungatana. Is that carried?
Hon. Members: Yes!
Mr. Chairman: Okay! Lets us now go to access to services; Article 8, a national state organ shall ensure access to its services in all parts of the Republic. I thought everybody is equal before the law. The commentary from our Secretariat is that this is not the view but just in terms of the analysis says that the harmonized draft had required access to services of state organs in all regions, essentially a devolution thing and then the equivalent provision in the earlier draft that went to the referendum had required “decentralization of state organs throughout the districts” while the Bomas Article 7(2) required the decentralization of all national state organs to all regions. I think this is devolution and we will deal with it at devolution.
The Minister for Foreign Affairs (Mr. Wetangula): Mr. Chairman, Sir, Articles in the Constitution have some meaning because when you say a national state organ shall ensure access to its services in all parts of the country without any qualification, can somebody in Bungoma close the development authority for not giving them services as state organ?
Mr. Chairman: Or the Military for that matter!
The Minister for Foreign Affairs (Mr. Wetangula): You could demand to have a military in every district or every county.
Mr. Chairman: Can I get proposals?
The Minister for Foreign Affairs (Mr. Wetangula): I propose for deletion.
Mr. Chairman: You have proposed a number of them so let me get somebody. It has been proposed by Mr. Musila and seconded by Mr. Orengo.
So let us go to languages and modes of communication. These are important things so let us read the Article together, 9(1):-
“The national language of the Republic is Kiswahili. (2) The Official languages of the Republic are Kiswahili and English. (3) The State shall respect, promote and protect the diversity of language of the people and shall promote the development and use of indigenous languages. (4) The State shall promote the development and use of the Kenya Sign Language (KSL), Braille and other communication formats and technologies accessible to persons with disabilities”. There is a proposal to delete (3) and (4). It is proposed by Mrs. Noor and seconded by Mr. Kenyatta. Is that agreed that Article 9 is amended by deleting sections (3) and (4)?
The Assistant Minister for Water and Irrigation (Mr. Kiunjuri): Mr. Chairman, Sir, here we are also dealing with the issue inability and disability and, therefore, we cannot completely leave out this issue of sign language and Braille. Equally, we do not have to write the whole sentence but we can amend section (3) to read as the state shall respect, promote and protect the diversity of language of the people of Kenya. I am getting lost because I want to include the diversity to mean all languages including sign languages; that we just leave it at that. “The state shall respect and promote the diversity of languages.” Somebody can put in a better language so that we take care of---
The Vice-Chairman (Mr. Namwamba): Mr. Chairman, Sir, when you talk of official or national language, even Braille, you will presume that any mode of communication, you will have Braille in Swahili and in English. Any other mode will conform to the principle of Swahili and English being national and so those details become unnecessary. Even sign language will be designed in Kiswahili or English.
The Assistant Minister for Water and Irrigation (Mr. Kiunjuri): I agree!
Mr. Chairman: So, we do the diversity in culture? Is that proposal carried for amendment? I want to hold your attention so that nobody will later say that they have--- Ladies and gentlemen, is the proposal by Mrs. Noor and seconded by Mr. Kenyatta. Carried?
Hon. Members: Yes!
Mr. Chairman: So, can we then adopt the Article as amended? Article as amended which means that Article 9 with the deletion of sections (3) and (4).
Hon. Members: Yes!
Mr. Chairman: Is that carried? Hon. Members: Yes!
Mr. Chairman: The proposer is Mr. Mungatana.
The Minister for Water and Irrigation (Mrs. Ngilu): Mr. Chairman, Sir, I am wondering why we should delete section (3) because our local languages are very important. They are part of us and if we delete this it means that we are saying that people have no right under the Constitution to speak their languages and even understand how to write them. This is what I understand. Therefore, I would not want to support that if we are removing section (3) because there is an identity in our languages.
Mr. Chairman: Mrs. Ngilu, can we put it in culture; the article that is dealing with culture, we put indigenous languages together with the issues that are being protected in culture?
The Minister for Foreign Affairs (Mr. Wetangula): If people are uncomfortable like my brother here, we can use it as part of the national value which is in the next chapter.
The Vice-Chairman (Mr. Namwamba): Indeed, Mr. Chairman, Sir, I want to inform Mrs. Ngilu that if she looks at section 13(2)(b), page 20; under our national values, principles and goals, which requires recognition of the diversity of the people and promotion and protection of their cultures, which should encompass--- We could, of course, amplify it to make reference to language in the interest of distilling the---
The Minister for Water and Irrigation (Mrs. Ngilu): Let us add language at that point.
Mr. Chairman: Okay, so that language comes in.
The Minister for Water and Irrigation (Mrs. Ngilu): Mr. Chairman, Sir, while at that point, I agree that languages that are being talked about here---
(Loud consultations) Mr. Chairman: Can you address the Chair? Let the lady give her piece!
The Minister for Water and Irrigation (Mrs. Ngilu): Mr. Chairman, Sir, we are talking about languages of Kenya. We have talked about our diversities and this belongs to one of the languages. We have official languages as English and Kiswahili but we have other languages that should be captured here.
Mr. Chairman: There is a proposed amendment to the amendment and she does not require seconding.
The Deputy Prime Minister and Minister for Finance (Mr. Kenyatta): Mr. Chairman, Sir, the reason we are saying it should be captured not in national and official but rather in culture is because as we attempt to break down our tribal barriers, it is even mandatory these days that in Government offices that you are supposed to speak, either in Swahili or English. If we then incorporate it as part of the national language, you are actually defeating the purpose of trying to create a national identity. But at the same time we are recognizing in the national values that we have our cultures and we need to protect them and that is why I have no problem with Mrs. Ngilu’s position that culture should also include language because we also do not want to lose our languages. But it should not be because once you have incorporated it there, you are then saying that since my language is Kikuyu I should be free to speak that even where others do not understand what I am necessarily talking about.
We have one national language which is Swahili which we recognize and we have one other language which is English which is an official which we also recognize as the two languages of the nation. Our other languages are protected under our culture and I think that is where it should be so that we are in a position to encourage cohesion of our country. So, I would like to encourage my sister to accept that we deal with the issue of our respective languages in values because those, indeed, are our values.
Mr. Chairman: Mrs. Ngilu, I am fairly convinced that let us adopt that format. Let us have the amendment as carried as 1 and 2 and for 3, we look at how to suit it somewhere in Article 13. So, can we then formally adopt it?
Mr. Ruto: Mr. Chairman, Sir, first of all, I think we need to get a new title for that because I do not think it should be languages and modes of communication. I am not also proposing the correct wording because I believe there is somebody else in this meeting who can give us a better title for this. But I also think we do not need these details here; let us carry them elsewhere. Let us persuade our sister. Let us not bring in this.
Mr. Chairman: We are in the mode of persuading our sister!
Mr. Mungatana: Mr. Chairman, Sir, I think the fact of the matter is that there is an attempt here to import what is happening in South Africa because I believe they have six official languages but if you tune to SABC you can have in Afrikaans and other African languages and English as well because of their 11 jimbos. I think we need to realize that they were fixing their own constitutional history and we are also here trying to fix our own constitutional history. We want to move towards English and Kiswahili. In fact it should basically be Kiswahili because even the region is embracing Kiswahili. So, I think we have done better; we have captured in section (1) and (2) what needs to be done because already Parliament is using Kiswahili and English as official languages. So, we do not need to go into this. While we acknowledge these ones exist, they are not yet national unlike in South Africa where they have even regionalized their own governments. Let us be persuaded that we stick to these two; we have made progress from where English was the only official language; now it is English and Kiswahili and for the others we deal with them as part of our culture. For example, Pokomo language is part of my culture so we deal with it at that level.
Mr. Chairman: Mrs. Ngilu, we are going into culture and values immediately after this. I would really plead with you to let us--- I am hoping to persuade Mrs. Ngilu! We are still dealing with the amendment by Mrs. Ngilu.
The Assistant Minister for Water and Irrigation (Mr. Kiunjuri): Mr. Chairman, Sir, if you look at the title; languages and modes of communication, meaning sections (1), (2) and (3) deal with languages and section (4) deals with communication. That is why, once again, I am pleading with hon. Members that because of the issue of disability, even if we delete some words and have it at “the state shall promote communication formats and technologies accessible to persons with disability.” This is an issue that the disabled people have been fighting for, especially sign language and they are completely ignored today. It is only on major conferences that they are recognized and they are people who cannot fight for their rights especially when they are not expressly provided for. So, on this issue of communication, I propose that we have section (4) but it should be promotion of communication formats and technologies accessible to those persons with disability.
Mr. Chairman: Instead the KSL? The Vice-Chairman (Mr. Namwamba): Mr. Chairman, Sir, I want to suggest that that is a matter of human rights. It is an entitlement for what you may call a marginalized group or a special interest group. Therefore, we could protect is specifically within the Bill of Rights. But on this section that needs to give broad principle of national/official languages should really be strictly restricted to that. We can leave it to the Bill of Rights and deal with it as a matter of Constitutional entitlement.
I also wanted to move a further amendment of the titling of that Article; that it just be languages or whatever but languages and modes---
Mr. Chairman: Since there is an amendment to an amendment I do think it requires a seconder. We will give to Ms. Odhiambo, then Mr. Orengo and Mr. Wetangula.
Ms. Odhiambo: Mr. Chairman, Sir, what I would want to say is that I am persuaded by Mr. Kiunjuri reason being that for persons with disability, especially people who may use Braille, for them that is like a language. It may be in whatever language you can put it in, for example, Luo or Kisii, but that is the principle mode of communication for them. One of the other things I would want to encourage us is – I know we want to make a lean Constitution – to remember that if we look further on, we have whole pieces of legislation that we can remove, like the Political Parties Act that Mr. Wetangula is talking about plus the entire Children’s Act.
Mr. Chairman: It is good to hear that you are the one talking about the children.
Ms. Odhiambo: I know, there are things that are, I am even receiving text messages that they hear we are about to remove things on children, can they go and demonstrate! But what I am basically saying is that---
Hon. Members: Is that why you are going to demonstrate!
Ms. Odhiambo: No! I am not going to demonstrate!
Hon. Members: But you are on record! Ms. Odhiambo: Yes, I am on record and I know that I have received a text message but what I am saying is that if you actually look at some of those provisions, they are either international conventions put completely out there or they are pieces of legislation---
Mr. Chairman: Come back to the current issue!
Ms. Odhiambo: Mr. Chairman, Sir, when it is something that talks to aspirations of certain people like persons with disability, it is so little. Why are we taking from them? If you look at the title, it is languages and modes communication so unless we are changing it to read “national languages” then if we move it to national languages, then I will be okay if we move this to the Bill of Rights.
End F
Take G
PON H.1 – 11.1.2010
Mr. Chairman: Dr. Kosgei, you have not spoken.
The Minister for Higher Education, Science and Technology (Dr. Kosgei): Mr. Chairman, Sir, I just want to say what I believe religion is not peculiar to Kenya; it is all over the world. As we know now, religion is getting more extreme and it can happen here. I personally believe that it has to be declared that Kenya is a secular state. Do you remember the case of Pakistan? The uziah ul haq? That had to do with religion. This thing is going around the world and the religions that we thought were seriously conservative are getting so much more political and we have quite a lot of them here. So, despite the complications it causes, I still believe that is should be stated that Kenya is a secular state.
Mr. Chairman: As a middle ground, let us have the proposal that Article 10 be retained. We have been deliberating for a long time so could we agree that the proposed amendment was for deletion and then it was amended by the proposal to have retention of Article 2. Mr. Kioni: Mr. Chairman, Sir, I want to say something. I appreciate what we are trying to do but there is a danger here. The danger is that there is a likelihood that we could get ourselves in a lot of problems. There are those who may look at this as having lost ground. We know we have many issues on religion. If there is a feeling by others that they have lost ground, then immediately, we have litigation. It is for that reason that I wanted us to remain in that ambience. If we want this document to go slow without inviting litigation immediate, I would rather we remain quiet on this like we have done before. That retention of Article 2 sends a signal to a group of people and we would lose this on that basis.
Mr. Chachu: Mr. Chairman, Sir, it is important for us to have constitutional safeguards when it comes to issues of religion and the state. This particular issue may not have been captured in the current Constitution because we were living in different times. The extremes that we see today in religion are not issues but it is a reality today. There is nothing that can stop a rogue president from declaring this nation either a Christian or Muslim state. Let us have that constitutional safeguard and deal with the issues that are relevant in our times today. We should retain Article 2. Let us have a secular state and that should be entrenched in our Constitution.
Mr. Chairman: I will give a chance to Ms. Abdallah. I want us to always be aware of the point that Mr. Kioni raised that we need to do this considering the public out there so that we can get acceptability or get a feeling from a section that they have been short-changed.
Ms. Abdallah: Mr. Chairman, Sir, I think that if we are retaining Article 2, let us also retain the wording because when you say that Kenya is a secular state it is a different interpretation altogether. So, I support the retention with the wording.
The Minister for Foreign Affairs (Mr. Wetangula): Mr. Chairman, Sir, we need to make progress. We can make progress by agreeing on Article 2 which really does not alter the character of our state. We have had no state religion since Independence.
Mr. Chairman: So, ladies and gentlemen, can we agree on that one?
Hon. Members: Yes.
Mr. Chairman: So, is that carried? Hon. Members: Yes.
Mr. Chairman: Thank you. Let us go to Article 11. But before that let me summarize on what we have voted on. We have voted that Article 10 be amended by deleting sections (i) and (iii). So, as amended Article 10 as amended stands with only section (ii). I need a proposer and seconder for us to carry Article 10. So, Ms. Abdallah is proposing and Ms. Odhiambo is seconding.
Let us move to Article 11.
Mr. Nyengenye: Mr. Chairman, Sir, Article 11 is on National Symbols and the accompanying schedules have remained the same in all the drafts.
Mr. Chairman: If it has remained the same in all the drafts, I have a proposed amendment from Mr. Mungatana but my proposal is that why can we not leave it the way it is?
Mr. Mungatana: Mr. Chairman, Sir, first of all, I agree with generally what it is, but my humble opinion is that national days are also symbols but in order to accommodate it we could make Article 11 and 12 as one Article so that we are dealing with the same Article. I also proposed that this Mashujaa Day which is to be observed on 20th October, we make it the normal way as Kenyatta Day. My reasoning is very simple. The country has a history and we cannot deny it. All of us in our generation we were brought up being taught that Kenyatta led the liberation in Kenya at that. That is a historical fact. He is the only President who has been laid in Parliament and we have a history. For whatever reason, calling it Mashujaa Day may make it a Tanzanian or Ugandan Holiday.
Mr. Chairman, Sir, some people are not following so let me start again.
Mr. Chairman: No, it is okay. So, your first proposal is that we collapse the two Articles together.
Mr. Mungatana: Mr. Chairman, Sir, my first proposal is that we collapse the two of them together because they are talking more or less about the same thing. My second proposal---
Mr. Chairman: Before you go to the second one, why can we not deal with the first one? So, give your proposal. Mr. Mungatana: Mr. Chairman, Sir, I am saying that we call it National Days and Symbols and then the issue of Mashujaa Day; we try to look at history in this country. My argument is that if you call it Mashujaa Day, it could as well pass for Tanzanian, Rwandan or Burundian holiday but if you call it in the character that it is and the way that we have understood it from the way we were taught from lower school then we will be saying that Kenya really is.
Mr. Chairman: Who is the seconder for that? Mr. Mungatana, why can we not deal with Article 11 first then your proposal will be to have the two together.
So, does anybody have any issue with Article 11 – National Symbols? So, can I get a proposer and seconder?
It is proposed by Maj-Gen. Nkaisserry and seconded by Mr. Ombui.
(Article 11 adopted)
Let us now move to Article 12.
Mr. Chairman: The first proposal is from Mr. Mungatana. He is proposing that Article 11 and 12 be joined to be one article. Is there any seconder?
Mr. Mungatana, would you kindly withdraw?
Mr. Mungatana: I withdraw the proposal.
Mr. Chairman: Thank you. So, that proposal is withdrawn.
The Minister for Agriculture (Mr. Samoei): Mr. Chairman, Sir, I think Mr. Mungatana’s proposal has merit. What is wrong in us saying National Days and Symbols?
Mr. Chairman: So, are you seconding the proposal?
The Minister for Agriculture (Mr. Samoei): Yes, Mr. Chairman, Sir. It is neat instead of having too many chapters and too many articles.
Mr. Chairman: Then Mr. Mr. Mungatana, you have to propose it afresh because you had withdrawn. The Minister for Foreign Affairs (Mr. Wetangula): Then Mr. Chairman, Sir, the Motion is incompetent. We have already passed Article 11.
Mr. Chairman: We are dealing with Article 12 and his proposal is that the article should be part of Article 11.
The Minister for Foreign Affairs (Mr. Wetangula): Mr. Chairman, Sir, can I now comment on Article 12?
Mr. Chairman: Let us first agree on the way forward. We need to conclude it in a neat fashion. Mr. Mungatana had withdrawn the proposal.
The Minister for Foreign Affairs (Mr. Wetangula): Mr. Chairman, Sir, I want to support what Mr. Mungatana said. History is history and we cannot live in denial of our own history. Kenyatta Day has been with us all this year and it is a day of immense value and position in history.
Mr. Chairman: Why can we not let Mr. Mungatana propose it afresh?
Mr. Mungatana: Mr. Chairman, Sir, I propose that we amend Article 12 (i)(b) to read, in place of Mashujaa Day to read Kenyatta Day.
Mr. Chairman: Mr. Wetangula, you can second and go ahead with your contribution.
The Minister for Foreign Affairs (Mr. Wetangula): Mr. Chairman, Sir, I second that motion because we should not start distorting our history which we have known and lived with and it will always be there. If you go to the United States of America (USA) they even have Martin Luther King Day. So, why should we run away from having a day in honour of our celebrated heroes? If we want Mashujaa Day, like many countries do, we should create a Heroes Corner where we have observance of our heroes so that we can get those who are defined and found later are also put there in honour.
Mr. Chairman: If this can be carried let us not spent a lot of time.
Hon. Members: Let us put it! The Assistant Minister for East African Community (Mr. Munya): Mr. Chairman, Sir—
Mr. Chairman: We need to move, hon. Member.
The Assistant Minister for East African Community (Mr. Munya): But you cannot move without me.
(Laughter)
Mr. Chairman, Sir, what I wanted to say is that I really do not have a problem with Kenyatta Day but the clamour has been for recognition of all heroes who fought for Independence and even those who fought for the third liberation and all that. So, even as we want to retain Kenyatta Day, then we might have to get another day for those other heroes because burying them in an acre is not the same as recognizing them and I find that quite offensive when you say that you can get an acre to bury them then you have recognized them sufficiently. Whereas, I have no problem with the role our first President played and the need to remember it as his day but there is also need to recognize other heroes. That has been the problem and the clamour. So, to sit here the 27 of us and think that we will do away with that clamour just by deleting and changing, I think we are getting it wrong.
Mr. Chairman: Mr. Munya, it is not that the Chair does not want you to talk but we need to make progress and manage our time.
The Assistant Minister, Ministry of State for Defence (Maj-Gen. Nkaisserry): Mr. Chairman, Sir, what Mr. Munya is saying has been taken care of by Article 12(iii).
Mr. Chairman: It says that Parliament may prescribe and provide for public holidays.
The Assistant Minister, Ministry of State for Defence (Maj-Gen. Nkaisserry): If you want a holiday in future, you may not be there yourself but for posterity, like what happens in the USA, they created Martin Luther King Day which was not in the Constitution. So, we can modify section (iii) to take care of that. I do not find any problem.
Mr. Chairman: Let us conclude with Mr. Mungatana’s proposed amendment. The Minister for Agriculture (Mr. Samoei): Mr. Chairman, Sir, for the benefit of the process, why it was arrived at as Mashujaa Day, there is a reason. The reason was that we had Kenyatta Day, Moi Day and other holidays. If the reasoning is history that we have always had Kenyatta Day and Moi Day, what are we going to do? Are we going to reinstate Moi Day and other holidays? The reasoning was that we remove all these holidays and have one day to recognize all heroes, Kenyatta being the first and others following. That way, we will cure the whole thing in one day because there is also a risk of us having too many days as holidays. As heroes come, they will just join the queue on the hero’s day.
Mr. Chairman: In other words, Mr. Samoei and Mr. Munya, your view is that you are not for this amendment?
The Minister for Water and Irrigation (Mrs. Ngilu): Mr. Chairman, Sir, Mashujaa Day has been coming in every draft because there has been a clamour to appreciate and recognize all those people who have been in the struggle since Independence and the second and the third liberation. In fact, somebody like me would come in on such a day also. Then there will be the final and true liberation. I am thinking about the Kapenguria Six. There are those people who fought to bring Independence in this country and if we just recognize one person then we are missing out on what we should be doing. So, I propose that we retain the Mashujaa Day.
The Minister for Justice, National Cohesion and Constitutional Affairs (Mr. M. Kilonzo): Mr. Chairman, Sir, I agree with everybody but I want to persuade everybody that our heroes need to be recognized. The 20th October, 1952 is a special day in the history of Kenya. Although we have heroes like Mr. Harry Thuku and others and we will continue generating heroes like you, Mr. Chairman, will become a hero as a result of this. I think that 20th October, 1952 is the day that the Kapenguria Six were arrested ought to remain a special day for the country. So, why not call it Kenyatta Day. After all, the only photograph we have historically is that of the arrest of Mzee Kenyatta with askaris leading him away. My recommending is that I would be more comfortable if we looked for another hero’s day but live the memory of 20th October, 1952 special, distinct and on its own.
Mr. Chairman: We have heard from the two sides so let us hear from Mr. Mungatana before we can move on.
Mr. Mungatana: Mr. Chairman, Sir, first, we do not want to lose the history of this country. What Mrs. Ngilu has said about heroes and I have addressed very many public rallies and so have many of you, I cannot remember where we have talked about Kenyatta Day without reference to the Kapenguria Six. We all know that this is the day that we talk about heroes in this country. In my humble thinking, even those people who fight to alleviate poverty are recognized on this day. This is the day that we recognize all the calibre of heroes but the symbolization of this is the person we associate with our first republic. Our children need to remember that. If you just say Mashujaa Day, I feel that we shall have lost it. I just have a bad feeling that we will be discreting something national. We should not lose this because it means a lot to us. Kenyatta Day is not the same as Moi Day. Mr. Moi retired and told us that he just wanted us to remember to give to other people and share. So, his day is not the same like ours. He even stopped having national parades and all that. So, let us not change it. I plead with you hon. Members.
Mrs. Noor: Chairman, Sir, Mr. Mungatana has covered it very well. So, I support that we remain with Kenyatta Day because it touches on our history directly.
The Assistant Minister for Water and Irrigation (Mr. Kiunjuri): Mr. Chairman, Sir, let us not also ignore politics in the whole issue. First of all, I support Mr. Mungatana’s position to retain Kenyatta Day. Even George Washington is recognized in USA. For the foundation of this country, we have to have Kenyatta Day. It is not like Moi Day which has not significance in the struggle for Independence but this one is a struggle for Independence.
Mr. Chairman: We will delete part of that.
The Assistant Minister for Water and Irrigation (Mr. Kiunjuri): Mr. Chairman, Sir, what I am proposing is this; even if you ask Mr. Orengo, since 1990s people have been fighting to have Mashujaa Day and it is major politics in the country and we cannot escape the criticism out there if we do not come up with Mashujaa Day from here. We shall not be able to convince them about how we arrived at that. So, I want to second Mr. Munya’s proposal that we have a separate day being informed by the fact that it is the first time---
Mr. Chairman: Mr. Munya did not propose a fourth day.
The Assistant Minister for Water and Irrigation (Mr. Kiunjuri): Mr. Chairman, Sir, he proposed and I am seconding because of one thing; for the first time we are having national days in the Constitution but before they were only in the statutes. Therefore, we are not asking for too much. If there were no heroes, we could not be having Jamhuri Day, Madaraka Day or Kenyatta. It is because of their participation and contribution. As we have said, there are people like Harry Thuku and other who need to be recognized. That day will also take care of Orengo’s and Anyona’s of this country who participated in one way or another. So, it is not just about the fight for Independence but also for the recognition of others.
Mr. Chairman: We shall just strike out the words that Moi Day has no significance from the records. So, that there is no misunderstanding.
The Assistant Minister for Water and Irrigation (Mr. Kiunjuri): I agree, Mr. Chairman, Sir and I withdraw.
Mr. Chairman: We need to conclude this issue. I have not had any suggestion on which day these other days will be. Could be conclude the proposal by Mr. Mungatana that we retain Kenyatta Day on 20th October and go to Mashujaa Day?
The Minister for Agriculture (Mr. Samoei): Mr. Chairman, Sir, I have an issue. I quite sympathize with the argument put across by Mr. Mungatana. The first President of this country was a symbol of that struggle. It became the embodiment of that struggle but he was not alone. There are many Kenyans who died in the process. Let me also say that creating a fourth day will give credence to a fifth day and another one. Let us just stick to the three days and let us say that the 20th October is Kenyatta Day but we qualify it by saying that it is a day for celebrating national heroes. We should find a way of tying the two together so that the name remains Kenyatta Day but the celebration is about Mashujaa. If we can find a way of putting those two together so that we carry the heroes but we give credit to the embodiment as the first President was.
The Vice Chairman (Mr. Namwamba): Mr. Chairman, Sir, without dragging us back, do we really need this provision in this Constitution? Do we really need to deal with national days in this draft? Is this not one of the things you could live to statute?
Mr. Chairman: Is that a proposal to delete Article 12?
Mr. Kioni: Mr. Chairman, Sir, what we are doing to do is give a prescription to history by having it in the Constitution. I think we should live in the statutes and we will read the books and know who did what and continue the way we have continued. I do not think we will be able to get far with this. Mr. Chairman: Is there a seconder to that? Are you amending that to say that Parliament may prescribe and provide for national and public holidays. Can we get a proper proposal? We have a proposal to delete.
The Vice-Chairman (Mr. Namwamba): The proposal is from me.
End H
ARM I. 1 – 18.01.10
Mr. Chairman: The proposal was from Mr. Namwamba and seconded by Mr. Kioni. Now I Propose the amendment that we retain 12 (3) but amended in such a way that it has national outlook. Parliament may prescribe and provide for national and public holidays. Can we take this through?
Vice Chairman: National Days and symbols. Mr. Mungatana please re-propose.
Mr. Mungatana: Mr. Chairman I propose that the Article No. 12 as amended be part of the records.
Mr. Chairman: Why do you not read the amendment clearly now? First of all read as amended so that we are all---
Mr. Mungatana: Article No. 12 to read that the national holiday.
Mr. Chairman: No no! Just Parliament.
Mr. Mungatana: That Article 12 amended as follows:-
“That Parliament may prescribe and provide for public holidays”.
Sorry Mr. Chairman Sir, let me take that one again that Parliament may prescribe and provide for national and public holidays.
Mr. Chairman: And then that will be 11 (3).
Mr. Mungatana: And the same be now merged or become part of Article 11 (3). The title becomes “National Days and Symbols”.
Mr. Chairman: Can we get a seconder for that?
(The Minister for Agriculture Mr. Samoei seconded) Mr. Chairman: Is that carried? So I think we can stop at that point. So that has been carried! Welcome Ms. Karua.
Mr. Ethuro: Mr. Chairman, Sir, I am borrowing from the Constitution again. If you look at Section 16 where I borrowed one of the options of the Minister we can still just improve it on the national days; that there shall be such number of national and public days as may be established by Parliament.
Mr. Chairman: That is not an improvement. We will put it as it was carried. Thank you very much Mr. Ethuro. So ladies and gentlemen we were supposed to have dealt with 60 pages today we have done 20 and we have 40 remaining. So can we take a one hour lunch break It is 1.45 p.m. We meet here at 3 p m. Please keep time. Thank you very much. In terms of communication to the media if you could kindly listen to me, please nobody has the authority to speak to the Press for the Committee, it is the Chair unless you are talking to them about your constituency or your Ministry but nothing to do with this matter.The Chair will be a dictator.
END I
AAA J.1 – 18.01.2009
Mr. Chairman: Okay, ladies and gentlemen, I think we can resume. We will resume with the meeting starting from where we left last time. I believe we have quorum so that we can continue. In the interest of being faithful to the process and to move as fast as possible, where there is much agreement, I do not think we should spend a lot of time deliberating unless there are very strong views on removing or re-designing. But our key, really, should be the contentious issues or where we feel there is a very strong case for reduction so that we are truthful to the process.
We are on Chapter 3, which deals with national values and culture. Yes, Mr. Nyengenye?
Mr. Nyeng’enye: Thank you, Mr. Chairman, Sir. The principal change here in Chapter 3 is an amalgamation of what was previously Chapter 3 and Chapter 5 in the previous drafts. In all previous drafts, there was a separate chapter on national values, goals and principals; and a separate chapter on culture. What has happened in this draft now is that these two chapters have been merged together. Other than that, Mr. Chairman, Sir, Article 13 is the same as it was in previous drafts on the whole.
Mr. Chairman: Thank you very much. Let us read Article 13 together.
CHAPTER THREE
NATIONAL VALUES AND CULTURE
Part 1- National values, principles and goals
National values, principles and goals
13. (1) The national values, principles and goals contained in this article shall bind all State organs, State officers, public officers and all persons whenever any of them—
(a) applies or interprets this Constitution;
(b)enacts, applies or interprets any law; or
(c) makes, or implements public policy decisions.
(2) The national values, principles and goals include—
(a) promotion of national unity and the commitment of all citizens to the spirit of nationhood and patriotism;
(b)recognition of the diversity of the people and promotion and protection of their cultures;
(c) promotion of the sharing and devolution of power;
(d)ensuring of open and transparent government and accountability of all State officers, public officers, State organs and other public authorities;
(e) taking of effective measures to eradicate corruption;
I honestly do not think that that belongs to the Constitution. But let us go on.
(f) ensuring of access by the people to independent, impartial, competent, efficient and affordable institutions of justice; (g)recognition of the role of civil society in governance and facilitation of its role in ensuring the accountability of government;
(Loud consultations)
Hold on! Hold on, ladies and gentlemen!
(h)protection and promotion of human rights and fundamental freedoms;
(i) ensuring full participation of women, persons with disabilities, marginalized communities, the youth and all other citizens in the political, social and economic life of the nation;
(j) implementation of the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender;
(k)ensuring of progressive implementation of the principle that at least five per cent of the members of public elective or appointive bodies shall be persons with disabilities;
(l) recognition of the special responsibilities that the State, society and parents owe to children, and upholding the family and the institution of marriage;
(m) commitment to social justice and the realization of the rights of the people to basic needs and to a secure environment;
(n)recognition, development and promotion of the role of science and technology;
(o)elimination of disparities in development between the various parts of Kenya, and sectors of society;
(p)efficient management of national resources and for the welfare of the people;
(q)pursuit of policies for the sustainable management of the environment for the benefit of present and future generations;
(r) promotion of African unity; and,
(s) co-operation and solidarity with the international community in the pursuit of international peace. Okay, so let us start from the top. Is there anybody who has any issues on Article 13 (1)?
Ms. Karua: Mr. Chairman, Sir, there is one issue. Do you want us first to conclude this before we give additions?
Mr. Chairman: Yes.
Is there anybody who has any issues on Article 13 (1) – National Values? This article has part a, b and c.
Yes, hon. Ruto?
Mr. Ruto: Mr. Chairman, Sir, what is this supposed to help?
Mr. Nyeng’enye: Mr. Chairman, Sir, without appearing to be defending this, the National Goals and Values belongs to a category of provisions that have been found in a number of constitutions that belong to what are called “Directive Principals of State Policy”. They are supposed to be feel-good or aspirational provisions that are supposed to be construed as guiding the spirit and the philosophy of the entire Constitution.
Ms. Karua: Mr. Chairman, Sir, I will not myself---- (Off-record)
Mr. Chairman: We need you on record, hon. Karua!
Ms. Karua: Mr. Chairman, Sir, what I am saying is that it is not merely feel-good. When courts are interpreting, sometimes people cloud their minds because they want a certain outcome. When you have these directive principals, once cannot avoid a conclusion that can be derived from them. They are very, very useful in guiding, not only policy, but when it comes to interpretation. It is something that we should actually keep, in my view.
Mr. Chairman: Yes. So, does anybody have--- Of course, the form is another matter, but does anybody have any issues with Article 13 (1)? Can we then get proposals to adopt Article 13(1)?
Ms. Odhiambo Proposed
Ms. Karua Seconded. The Assistant Minister for East African Co-operation (Mr. Munya): Mr. Chairman, Sir, the biggest problem I have with Article 13(1) is the wording. If it was just listing of national values; if you are saying that one of the national values is patriotism and the other one is accountability and transparency. But when you put them the way they are put – recognition of the role of civil society in governance and---
Mr. Chairman: Order! You are on Article 13(2) and we are dealing with Article 13(1)!
The Assistant Minister for East African Co-operation (Mr. Munya): I am sorry, Mr. Chairman, Sir. I am okay with Article 13(1).
Mr. Chairman: So, can we then say that Article 13(1) is carried?
Hon. Members: Yes.
Mr. Chairman: Okay, let us go to Article 13(2) then. Does anybody have any problems with Article 13(2) (a), so that we go through them one by one?
“(2) The national values, principles and goals include—
(a) promotion of national unity and the commitment of all citizens to the spirit of nationhood and patriotism;”
Is there any problem there? That is a valuable national value.
Article 2(b) reads:-
“Recognition of the diversity of the people and promotion and protection of their cultures”
Ms. Karua: Mr. Chairman, Sir, can it end at the word “people”? I am proposing that Article 2(b) just be “Recognition of the diversity of the people.” The reason being that when you give an obligation for the State to promote and protect culture; that is too wide and may be impractical.
The Assistant Minister for Defense (Maj-Gen. Nkaisserry): Mr. Chairman, Sir, I have a very big problem on this chapter on national values, principles and goals. Unless we separate them, it may bring problems in future because we have to have values. What are our national values? What are our national principles? What are our national goals? How do we achieve them? And what if we do not achieve them? In a Constitution, you can be pinned down. If you have not achieved a particular thing and it is in the Constitution, then you have to tell the citizens that we have not achieved that! So, to me, I think we better look at these things and separate them.
The Assistant Minister for Defense (Mr. Musila): Thank you, Mr. Chairman, Sir. Mine is to seek guidance from the Chair, because after going through the various national values, principles and goals, it is obvious that a lot of them ought not to be here. Some could be in the Statutes already and others do not make sense. So, do you want us to go through them all, from article 2(a) to (s)? Is there not a way in which we can redraft this to include only things that are necessary in the Constitution? I want to remind my colleagues that we are making a Constitution; we are not doing legislation here of some statutes of some kind!
The Minister for Lands (Mr. Orengo):Mr. Chairman, Sir, my problem is not specifically with Article 2(a), but the way the whole thing is formulated. If you read, it says:-
“(2) The national values, principles and goals include—
(a) promotion of national unity and the commitment of all citizens to the spirit of nationhood and patriotism;”
The promotion of national unity cannot be a value. What is a value is national unity. If you go on throughout the articles, like even “ensuring of open and transparent government”, that cannot be a value. So, I think the drafters should clean up. In fact, if we approach it that way, a lot of these things which are superfluous will go.
Mr. Chairman: Okay. Who is in charge of our draft? Is there any suggestion on this?
(Mr. Chairman consulted with the drafters)
The advice I am getting is that most of these things were negotiated in Bomas---
(Loud consultations) Order! Just hear me out! There are constituencies that are attached to most of these issues. I agree with you that most of them are superfluous. But can we go through them one by one so that we say, for example, (x) Taking measures to eradicate corruption.” Certainly, that should not be in our Constitution, in my opinion. But can we take decisions like that so that even when it is being redrafted, there are certain things that we have given directions, in our opinion, so that it is minuted and our process is clear?
Mr. Namwamba: Mr. Chairman, Sir, even before we do that and before we go that way, if these are supposed to be direct principles of State policy, I mean, how are you going to mix under one heading, like they have done here and lump together principles, goals and all these things? If we have to retain these things, then we have to make a decision to split them so that we are going to address them separately; we should either be addressing direct principles, and whether we want to put goals in this Constitution or whether goals are in the realm of policy. Really, we need, first of all, to make that fundamental decision.
The Deputy Prime Minister and Minister for Finance (Mr. Kenyatta): Mr. Chairman, Sir, there is a proposal that started with Maj-Gen. Nkaisserry and continued by hon. Musila and I think it has really been emphasized by hon. Orengo that we really need to relook at the way this whole Article 2 has actually been envisioned so that we can actually crystallize the key issues. If we go now by thinking of them one by one, we are not actually capturing the spirit of what those three hon. Members actually stated. We want to see how this can actually be redrafted to capture those values; what are the values, what are the principles and what are the goals? I do not think we are going to be able to capture it the way you are saying.
The Minister for Agriculture (Mr. Samoei): Mr. Chairman, Sir, to carry on from where hon. Kenyatta has left and to be practical, if we refer this thing to experts; mind-you, it has just come from experts – I do not think we will get much value by trying to---
Ms. Abdalla: They are quacks!
Mr. Chairman: We will disregard hon. Amina’s view that they were quacks – they were indeed experts! The Minister for Agriculture (Mr. Samoei): Mr. Chairman, Sir, I thought I had the floor?
Mr. Chairman: Yes, please.
The Minister for Agriculture (Mr. Samoei): Mr. Chairman, Sir, I do not think the experts will help us here. I think what we need to do is to make a decision alongside what hon. Namwamba said. One, let us just have values. Let us remove the rest, because it may not help us much. And then let us agree that, out of this, let us limit them to a reasonable number – say five or six values. So, let us pick the values from what we have here and let us make progress. in fact---
Mr. Chairman: Yes. But the preamble is not part of it. We will give a chance to hon. Karua and then to hon---
The Minister for Agriculture (Mr. Samoei): I am not yet done, Mr. Chairman, Sir.
Mr. Chairman: After you are done.
The Minister for Agriculture (Mr. Samoei): In fact, if you go further to the same article on page 14, there is really not much on the culture. It is just saying how this should be done in legislation. We do not have to say that!
An hon. Member: Culture is on its own!
The Minister for Agriculture (Mr. Samoei): Yes, it is on its own, but you know the real issue that is being said there is on part (c), which is talking about what should be done, is legislation. In fact, culture here is meaningless!
So, Mr. Chairman, Sir, what I am saying here, in essence, is let us just be patient; let us agree to go through this quickly, identify the ones that we want here and remove the rest.
Mr. Chairman: Yes. That is what I had proposed. But go ahead and say it so that we can confirm.
Proceed, hon. Karua! Ms. Karua: Mr. Chairman, Sir, all I needed to say is what has been said last; that we go through, remove what is undesirable and then crystallize on the remaining, because you might find that four sentences can carry the whole thing.
Mr. Chairman: More importantly, if you say it should be redrafted, by who? These are decisions that are supposed to be taken by the Committee.
Mr. Ruto: Mr. Chairman, Sir, I maintain that--- For example, some of these values or whatever they are called here are exactly the same thing we had in the ODM Manifesto. So, most of these things actually belong to political parties and to other fora.
Mr. Chairman, Sir, I also want to say that the worst thing you want to hear is that values keep changing according to generations. We are drafting a Constitution! Even goals belong to James Orengo in his Ministry and the rest really---
Mr. Chairman, Sir, I think we should discuss about constitutional issues; issues that are everlasting. I do not understand what we are trying to do with these things here candidly.
Ms. Odhiambo: Mr. Chairman, Sir, I would want to agree with what you had suggested because unless you are taking away the entire part, my suggestion would be that we go through them one by one. If we actually take the approach that hon. Orengo had suggested, then it becomes easier because you say what the national values are, it takes off like I think 40 of those and becomes only national unity---
(Loud consultations)
Mr. Chairman, Sir, I am saying that, for instance, Articles (a) and (b) speak of the same thing; national unity speaks to the issue of diversity. So, that would be, in my view, collapsed into one. So, my suggestion is that if we went through them, unless we are removing all of it, we go one by one and suggest---
Mr. Chairman: Can we do this; can we look at the ones that jump a queue as completely inappropriate and deal with those first?
Let us start from the beginning. Article 2(a) looks reasonable.
Ms. Karua: Except the wordings! Mr. Chairman: We will redo the wording and whatever, but—
(Loud consultations)
So that we are together, we can do one of two ways; either we go through each article one by one and deal with it, which is the way I would like, or let us, first of all, remove the ones that look obviously out of place and then whatever that remains, we now see how we can deal with it.
An hon. Member: Mr. Chairman, Sir, let us go through them one by one.
Mr. Chairman: Okay, we deal with them one by one.
“(2) The national values, principles and goals include—
(a) promotion of national unity and the commitment of all citizens to the spirit of nationhood and patriotism;”
Hon. Members: Mr. Chairman, Sir, we should just say “Promotion of national unity, nationhood and patriotism.”
Ms. Karua: Mr. Chairman, Sir, it is just national unity. Do not say “promotion”. It is not a value!
Mr. Chairman: Okay, can I get a proposer and a seconder for that?
The Minister for Agriculture (Mr. Samoei): Mr. Chairman, Sir, I am proposing that Article 2(a) be amended so as to read:-
(a) promotion of national unity, nationhood and patriotism;”
The rest should be deleted.
(Loud consultations)
Mr. Chairman: Let us deal with Article 2(a) so that we conclude on it. Can I get a seconder?
Ms. Abdalla Seconded
Mr. Chairman: Is that carried? Hon. Members: Yes.
Mr. Chairman: Let us go to Article 2(b) now. It says:-
“recognition of the diversity of the people and promotion and protection of their cultures;”
The Minister for Lands (Mr. Orengo):Mr. Chairman, Sir, by the way hon. Samoei has crafted Article 2(a), you can actually lift some of the other values into the same sentence; you can just list four or five values instead of putting them separately.
(Loud consultations)
An hon. Member: It was in the preamble!
Mr. Chairman: No, no! we are not dealing with the preamble now; we are dealing with a chapter. So, are we re-opening Article 2(a) or are have we gone to Article 2(b)?
The Deputy Prime Minister and Minister for Finance (Mr. Kenyatta): We are adding.
Mr. Chairman: That means we are re-opening Article 2(a)?
The Minister for Lands (Mr. Orengo): You just lift diversity and whatever else is in (b) and add it in (a).
Mr. Chairman: So, how will it go now? Yes, Ms. Odhiambo!
Ms. Odhiambo: Mr. Chairman, Sir, I do not know whether I am getting hon. Orengo correctly, but from what I am getting, he is saying that if we actually look through all these things, because we have worded them in so many ways, t hey will end up to about five values.For example, if you look at (e) -
“taking of effective measures to eradicate corruption;”
The value it speaks of is integrity. If you look at the one on civil society, it talks to participation. So, for me, what I would suggest is that we put one sentence, which is that:- “The national values include or are national unity, patriotism, integrity, participation---”
Hon. Members: Diversity
Ms. Odhiambo: Equity and social justice. Then that does away with (a) to (s).
Ms. Karua: Do you want equity or equality?
Ms. Odhiambo: Equity and equality. We need both. We need equality and equity; we need integrity, participation, national unity, patriotism--- What else have we left out? Social justice – that includes the marginalized,
Mr. Chairman, Sir, that is my suggestion.
(Loud consultations)
Mr. Chairman, Sir, can I make my proposal formally?
Mr. Chairman: Yes.
Ms. Odhiambo: I propose that we amend Article 13(2) as follows: -
“The national values include national unity, patriotism, integrity, equality, equity, social justice, inclusiveness and participation of the people, human rights and democracy.”
We can collapse all of them, Mr. Chairman, Sir. I have not written my amendment down, but let me try and read again so that we see what we have left out.
“The national values include---“
Mr. Chairman: Why do we not give you some time you write it down? Let us give you two minutes.
(Loud consultations)
Actually, why do we not do this; Ms. Odhiambo, we will give you time---
The Minister for Lands (Mr. Orengo): I was going to propose exactly what you are saying but with a bit of an amendment. Let us think about values; Ms. Odhiambo is going to write down what those values are. We can have sabbatical 2(a) and then if anyone can think of a goal or goals, then we spell them out. And if there is anything to do with principles, if you think they are there, then we can put them out. If we end up by seeing no goals, then we leave them out.
Mr. Chairman: So, can we do it this way; let us give Ms. Odhiambo time out with one of the drafters. We will go to part 2 and by the time we----
The Minister for Foreign Affairs (Mr. Wetangula): Mr. Chairman, Sir---
Mr. Chairman: Hold on, hon. Wetangula! This is the Constitution we are dealing with and we need to put down something proper. So, if you want, we will give you some time. You write it down. We will deal with culture and by the time you are through, we will come back to the national values. Hopefully, by that time, you will have something written for us and then we can do a proper amendment. Is that agreed?
Hon. Members: Yes.
Mr. Chairman: Okay. So, let us then leave Article 13 and go to Article 14.
An hon. Member: We cannot finish, Mr. Chairman, Sir. It is all there!
Mr. Chairman: No way!
An hon. Member: It is already there; national unity, integrity, equality, equity, social justice, inclusiveness, human rights, democracy and the rule of law.
The Minister for Lands (Mr. Orengo): Hiyo yote ni social justice na ni human rights.
Mr. Chairman: It is all right. Let it just be there for added advantage.
Ms. Karua: Let the word “social justice” remain!
Mr. Chairman: It is all right; it can be replaced with no problems.
(Loud consultations)
An hon. Member: Wacha ikae!
Ms. Karua: Some of those things are meant to be repeated. Mr. Chairman: So, are you now saying that now that we have that, we remove everything else?
Hon. Members: Yes.
Mr. Chairman: Let us get proposals of those. An amendment to 2 now.