REPORT OF THE CONSTITUTION OF KENYA REVIEW COMMISSION VOLUME FIVE TECHNICAL APPENDICES PART SIX APPROVED FOR ISSUE AT THE 110 th MEETING OF THE COMMISSION HELD ON 30 NOVEMBER, 2005 i PART FIVE: 1. DEVOLUTION OF POWER AND GOOD GOVERNANCE SEMINAR 2. REFERENDUM SEMINAR- 2003 3. JOINT CONSTITUTION OF KENYA REVIEW COMMISSION/ELECTORAL COMMISSION OF KENYA WORKHOP ON THE REFERENDUM- 2004 ii TABLE OF CONTENTS Page FOREWORD SECTION ONE: DEVOLUTION OF POWER AND GOOD GOVERNANCE SEMINAR 1. The Design of the Devolved System Mr. Mutakha Kangu 2. The Road To Devolution Of Power: Progress And Gains Made Prof. Wanjiku Kabira 3. Report on the Possible Division of Nairobi into Four (4) Boroughs and other Related Issues Mr. Johnson N. Mbugua 4. Devolution In Kenya Prof. Peter Wanyande 5. Devolution And Participatory Governance . Prof. H. C. Hans-Peter Schneider 6. Human Capital Challenges Of A Devolved System In Kenya Dr. Walter Odhiambo 7. Taxes And Revenue Collection Mr. Andrew Okello 8. Revenue Sharing And Equitable Development . Mr. N. T. T. Simiyu 9. Fiscal And Financial Aspects Of Devolution Mr. Ndung'u Gathinji 10. The Cost Of Government And Other Related Issues iii Mr. J.K. Kipng’etich iv SECTION TWO: REFERENDUM SEMINAR 11. The Referendum as an Instrument of Decision-Making Prof. H. W. O. Okoth-Ogendo, 12. The Referendum Experience In Canada Mr. James Girling, 13. The Referendum In Uganda Mr. Hajj Aziz. K. Kasujja, 14. The Referendum Experience In Rwanda Mr. Charles Munyaneza, 15. The Draft Referendum Regulations, 2003 Hon. Justice Isaac Lenaola, 16. Comments On The Draft Constitution Of Kenya Review Referendum Regulations 2003. Hon. Abdu Katuntu 17. Kenyan Draft Referendum Regulations 2003: A Discussion Mr. Jeffrey Simser, 18. Critique of the Draft Referendum Regulations 2003 Mr. Samuel Kivuitu, 19. The Constitution Of Kenya Review Referendum Draft Regulations 2003 Mr. Gabriel Mukele, v SECTION THREE: JOINT CONSTITUTION OF KENYA REVIEW COMMISSION/ELECTORAL COMMISSION OF KENYA WORKHOP ON THE REFERENDUM, 2004 20. The Road Towards the Referendum Mrs Abida Ali-Aroni 21. Overview of the Referendum in the Constitutional Review Process Prof. H.W.O. Okoth-Ogendo 22. Comparative Referendum Experiences Dr. Mosonik arap Korir 23. The Referendum in General Mr. Kihara Muttu 24. The Referendum Law: A Review of the Constitution of Kenya Review (Amendment) Act 2004 and Referendum Regulations Mr. Samuel Kivuitu 25. The Mandate of ECK under the Constitution of Kenya Review (Amendment) Act 2004 Mr. Gabriel Mukele 26. Logistics for Monitoring the Conduct of the Referendum Dr. Mohamed Swazuri 27. Approaches to Civic Education and Voter Education for the Referendum: Challenges Facing CKRC And ECK Dr. Charles Maranga FOREWORD The Constitution of Kenya Review Commission is pleased to publish this part of a volume of the Commission’s report, comprising the technical appendices to the Commission’s main report. The contents of this part are a reproduction of the proceedings of technical seminars held by the Commission. It is presented in two sections as follows: vi (a) Section One: Devolution Of Power and Good Governance Seminar, held from 3 rd – 5 th December 2003 (b) Section Two: Referendum Seminar -2003, held from 7 th – 10 th December 2003 at Whitesands Hotel, Mombasa. (c) Section Three: Joint Constitution of Kenya Review Commission/Electoral Commission of Kenya workshop on the Referendum 2004 held from 13 th – 16 th June 2005 at Leisure Lodge, Mombasa. This particular part has been prepared by the Commission working through the Research, Drafting and Technical Support Committee. The Chair of the Research, Drafting and Technical Support Committee of the Commission, Prof. H. W. O. Okoth-Ogendo, co-coordinated the work of these seminars. Backstopping assistance by way of research and logistical support was provided by the Technical Staff of the Research, Drafting and Technical Support Department of the Commission. The authority to prepare and publish these documents is derived from Sections 26 (2) and (7) and 27 (1) of the Constitution of Kenya Review Act (Cap. 3A). We wish to acknowledge and thank the local and international experts and professional groups and institutions, who offered their views, opinions and comments freely and sincerely during the Commission’s seminars. We also want to thank the individuals and organisations who gave their material and moral support during the exercise. We as Commissioners are pleased to release this volume to the public for perusal and discussion. 1. Mrs. Abida Ali-Aroni, Chairperson 2. Prof. Ahmed Idha Salim, 1 st Vice-Chair 3. Prof. H. W.O. Okoth-Ogendo, Vice- Chair 4. Prof. Wanjiku Kabira, Vice-Chair 5. Dr. Charles Maranga Bagwasi 6. Ms. Salome Wairimu Muigai 7. Hon.Dr. Phoebe Asiyo 8. Mrs. Alice Yano 9. Dr. Mohammed A. Swazuri 10. Bishop Bernard Njoroge Kariuki 11. Dr. Abdirizak Arale Nunow 12. Pastor Zablon Ayonga 13. Ms. Nancy Makokha Baraza 14. Mr. John Mutakha Kangu 15. Ms. Kavetsa Adagala 16. Mr. Paul Musili Wambua 17. Mr. Abubakar Zein Abubakar 18. Mr. Ahmed Issack Hassan 19. Mr. Riunga Raiji 20. Mr. Ibrahim Lethome 21. Mr. Keriako Tobiko 22. Prof. Githu Muigai vii 23. Hon. Justice Isaac Lenaola 24. Dr. K. Mosonik arap Korir 25. Mr. Domiziano Ratanya 26. Dr. Andronico O. Adede 27. Hon. Amos Wako, Attorney-General – ex officio 28. Dr. PLO-Lumumba, Secretary – ex officio viii SECTION ONE DEVOLUTION OF POWER AND GOOD GOVERNANCE SEMINAR: 3 RD – 5 TH DECEMBER 2003 AT WHITESANDS HOTEL, MOMBASA List of Presentations and Presenters: 1. “The Design of the Devolved System” by Mr. Mutakha Kangu 2. “The Road To Devolution Of Power: Progress And Gains Made” by Prof. Wanjiku Kabira 3. “The Structure and Management of Nairobi as the Capital Territory and Metropolitan City” by Mr. Johnson Mbugua 4. “Representation & Local Authorities in the Devolution Design” by Prof. Peter Wanyande 5. “Devolution and Participatory Governance” by Prof. Hans Peter Schneider 6. “Fiscal Devolution” by Dr. Walter Odhiambo 7. “Taxes and Revenue Collection” by Mr. Andrew Okello 8. “Revenue Sharing and Equitable Development” by Mr. N. T. T. Simiyu 9. “Fiscal and Financial Aspects of Devolution” by Mr. Ndung’u Gathinji 10. “Costing of Government and other related issues” by Mr. Julius Kipng’etich. 1 SECTION ONE: DEVOLUTION OF POWER AND GOOD GOVERNANCE SEMINAR: 3RD – 5TH DECEMBER 2003 AT WHITESANDS HOTEL, MOMBASA THE DESIGN OF THE DEVOLVED SYSTEM Mr. Mutakha Kangu, Commissioner, Constitution of Kenya Review Commission concretely, issues that fall within this Ladies and Gentlemen, I would like to share conceptual design we are trying to look at. with you what there is on the question of Design of the Devolution System and I At that conceptual level, the first design would like to begin by saying that Pakistan, question we need to address and refine, which is also trying to address the question which we have decided on as a Commission, of Devolution, after working up to a certain is that we are not talking about delegation of level and putting in place the structures they power, or deconcentration of power, we are wanted to use, one Speaker said that “the talking about Devolution proper, of power; foundations of your State have been laid and serious Devolution, so that the people are it is now for you to build and build as given actual power that can make things quickly and as well as you can”. move, that can ensure that they receive effective and efficient services that can bear I want to say that indeed Devolution is fruit in their well-being. Therefore, at the supposed to be the foundation of the State design level, we are seeking to design for and whereas this Speaker was saying after Devolution, not deconcentration, not they had finished the job, I want to use those delegation. words to emphasis the need for us in designing Devolution to be extremely Now, point number two is that at the level of careful, because that is supposed to be the concept, we have settled for four levels of foundation of the State and if we go wrong government. We want to have a Government at the design level, then we shall have a lot at the National Level, a Government at the of problems. Zone level - although I know in the Committee the question of the name was left Now, in addressing the question of design, I hanging, people are agreeable to that level, want to say that the Commission which has but they said they may have to rethink the been working on this issue for quite name of that level then we have a third level sometime and as Prof. Yash Pal Ghai has called the County which basically is said, we have held several Workshops and supposed to be the Local Government as is have come up with some conceptual known everywhere, then the lowest is going framework within which we are trying to to be the Location. design Devolution. It is therefore our hope that this Workshop will help us in refining 2 We want to think through more about these Governments that have to work in co- levels and see how best to place them, operation because they must be distinct from structure them and so on. For instance, if each other. Which means that the Lower you look at the Location level, we may need levels of Government, are not just agents of to refine the operations of that level, taking the higher level of Government, but in fact into account the needs of the village because each is distinct and draws its authority direct a number of people still think that the from the Constitution. Its functions are Location would be too far and we may need clearly allocated and defined by the to rethink whether we want to bring that Constitution.