Introduction
The disputed Kenyan Presidential elections of 2007 sparked horrendous clashes among supporters of the incumbent President Mwai Kibaki and his losing challenger Raila Odinga. With the blood and death of over one thousand persons on their hands, the imminence of a civil war and the prospect of an apocalyptic future, the country’s political leaders, with support from the continent spearheaded by former UN Secretary General Kofi Anan, decided that a new constitutional model was the only way to save the society and address the unequal distribution of opportunity and resources in their society.
Two years later, Kenyans now have just such a Constitution. One does not need to be a cynic to recognise that the Constitution of a country is only as good as its impact on the lives of its citizens. If this new Constitution works, the future for Kenya is assured and the dancing in the streets that followed the overwhelming popular vote for its existence would be vindicated.
Criticisms and comparisons
There are two criticisms of the Kenya Constitution that I think have considerable validity. The first is that it may overreach, that it may be too advanced for the objective circumstances of a country only now trying to rid itself of a colonial structure, riddled with ethnic, religious and tribal differences, still bearing the scars of a civil war that almost tore it asunder four decades ago. In one sense the constitution may be too perfect for fallible humans. This criticism has merit. I was even told that the chief fault is that it may be too good. That is a fault that many might like to possess.
The second and some may even say more serious criticism is the substantial powers of the presidency that are not unlike those in Guyana’s 1980 Constitution. Like in Guyana, the President is both the Head of State and Government. He chairs Cabinet meetings and directs and co-ordinates the functions of ministries and government, exercising executive authority of the country with the assistance of the Deputy President and Cabinet Secretaries. He is also the Commander-in-Chief of the Kenya Defence Forces and confers national honours.
Unlike the case of the 1980 Guyana Constitution however, Kenya’s has a number of countervailing measures that are designed to prevent the kind of abuse that is all too common in Guyana. Devolution of power and their separation at the national and regional levels, including national and county governments, a bi-cameral legislature, and clear rules on revenue sharing, are expressly spelt out in the Kenya Consti-tution.
Ministerial overload
While the Kenyan President chooses his Cabinet Secretaries – our equivalent to Ministers – that Constitution sets a minimum (14) and maximum (22) number of ministers. In Guyana, with 0.5% of Nigeria’s population, we have more ministers than that.
Their Constitution also provides for simple rules for the removal of anyone of those persons in the event of misconduct. It is unlikely therefore that our gun-toting minister, or the one implicated in buying and supplying spy equipment to a drug dealer, or some of those engaged in what seem clear cases of misfeasance in public office, could have remained ministers under the Kenya Constitution.
Just last month, Kenya has witnessed the sacking of its higher education minister from the Cabinet following a Constitutional Court ruling on a six-year-old corruption case accusing the minister of illegally selling land to a state corporation. By contrast, in Guyana, the more likely scenario is for state lands to be sold illegally to members of the Cabinet and those in the political elite.
The Kenya legislature cannot pass legislation like the president’s benefits bill which excludes Jagdeo and all other presidents in Guyana from the payment of taxes. Nor could there be a situation where Acts of Parliament are held up by the President, to be assented to as and when he feels like.
Insights and ideas
So as we in Guyana seek institutional solutions to our endemic problems, Kenya’s 2010 Constitution offers some interesting and innovative insights and ideas. It is a model for the devolution of power, for respect for citizens, for preservation of the rule of law and for the development of each region in the country.
It is an audacious document, repealing and replacing the entire former Constitution and containing two hundred and sixty-four Articles and six Schedules. Article 10 sets out the national values and the principles for governance that include national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; human dignity, equity, social justice, inclusiveness, equality, human rights, nondiscrimination, protection of the marginalized, good governance, integrity, transparency, accountability and sustainable development.
Article 11 on culture requires Parliament to enact legislation that ensures receipt by communities of compensation or royalties for the promotion and use of cultures and cultural heritage and recognises and protects ownership of indigenous seeds and plants, their genetic and diverse characteristics and their use by the communities of Kenya.
Bill of Rights
Chapter 4 contains forty-one Articles and includes a Bill of Rights that guarantees enjoyment of the rights and fundamental freedoms for every person, binds all state organs, provides for implementation of rights and fundamental freedoms, and for the enforcement of those rights and freedoms. In respect of these rights and freedoms, the locus standi rule does not apply and any person can bring an action on his own behalf, or on that of another person, as a member of, or in the interest of, a group, or, in the public interest.
The Constitution guarantees twenty-six specific rights and makes it a fundamental responsibility of the State and every organ of the State, to observe, respect, protect, promote and fulfill the rights and fundamental freedoms set out in the Bill of Rights.
In addition to the usual rights to life, liberty and association, the Constitution guarantees such rights as privacy, consumer rights and access to information held by the State; the freedom and independence of the press; the right to a clean and healthy environment; economic and social rights including to social security provided by the State; the use and enjoyment of one’s own language and culture; the right to marry a person of the opposite sex based on the free consent of the parties; equal rights at the time of, during and on dissolution of the marriage; and administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. If a right or fundamental freedom of any person has been, or is likely to be, adversely affected by administrative action, that person has the right to be provided with written reasons for the action.
Special people
The Constitution also has special rights for children who for example may only be detained as a last resort; for persons with disabilities being provided with access to all places, public transport and information (Braille is specifically mentioned); and for youth. The State is also obliged to provide for minorities and marginalized groups to be represented in governance and to provide access to employment and special opportunities in educational and economic fields.
The Constitution requires the government to provide measures for older persons to fully participate in the affairs of society; to pursue their personal development; to live in dignity and respect, free from abuse and to receive reasonable care and assistance from their family and the State. With respect to the environment, the State is required to maintain a tree cover of at least ten per-cent of the country’s land area and the right to a clean and healthy environment is protected under Article 42 and is justiciable under Article 70 without having to demonstrate actual loss or injury.
Article 48 provides that an arrested person must be brought before a court no later than twenty-four hours after being arrested; imposes on the State guaranteed access to justice for all persons and, where a fee applies, for it to be reasonable so as not to impede access to justice. No right or fundamental freedom in the Bill of Rights shall be limited in any way, except by law. Any provision in legislation limiting a right or fundamental freedom must specifically express the intention to, and the nature and extent of the limitation, and must be clear and specific about the right or freedom to be limited and the nature and extent of that limitation. In no case, can any law limit a right or fundamental freedom so far as to derogate from its core or essential content.
Non-citizens may hold land only on the basis of leasehold tenure, and any such lease, however granted, shall not exceed ninety-nine years. On pain of disciplinary action, an officer of the State is duty-bound, in public and official life, to avoid any conflict between personal interests and public or official duties that compromise that official’s public or official interest in favour of a personal interest; or demeans the office held by that officer.
Elections
Responsibility for elections vests in an Independent Electoral and Boundaries Commission which is responsible for ensuring continuous registration across the country. Any person who is not a member of a registered political party is eligible to stand as an independent candidate for elections which are held on the second Tuesday in August every five years.
Political parties must be registered, must have a democratically elected governing body, must subscribe to, and observe, the Code of Conduct for political parties, must have their accounts audited and are subject to restrictions on the use of public resources that promote their political interests.
General election of members of Parliament is to be held on the second Tuesday in August in every fifth year. The electorate of a constituency may recall their Member of Parliament before the end of the term of the relevant House of Parliament.
The legislature
Kenya has a bi-cameral legislature with the Senate representing the counties and their governments and determining the allocation of national revenue among them. There is a guaranteed minimum number of women members of the National Assembly (47) all of whom are elected, and the Senate (16), who are nominated by the political parties. There is also guaranteed representation of two youths and two persons with disabilities in the Senate.
All sittings of Parliament and those of its Committees must be in public, the members of which are guaranteed participation and involvement in the legislative and other business of Parliament and its Committees. Persons have a right to petition Parliament to consider any matter within its authority, including enacting, amending or repealing any legislation. The procedures for accessing and giving effect to this right are to be enshrined in legislation which must be passed within two years following introduction of the new Constitution.
The President has fourteen days to assent to a Bill or refer it back to Parliament for reconsideration. If the President does not assent to a Bill, or otherwise deal with it in accordance with the Constitution, the Bill is taken to have been assented to.
The Executive
The Executive is made up of the President, the Deputy President and the Cabinet, the composition of which the Constitution requires to reflect the regional and ethnic diversity of the people of Kenya.
A person who owes allegiance to a foreign state may not be elected President of Kenya. The powers and functions of the President are not dissimilar to those of the Guyana President, but in Kenya the holder of this office has other obligations that include addressing Parliament at least once every year; reporting annually to the nation; and publishing in the Gazette, all measures taken and all progress achieved in the realisation of the national values; and submitting a report for debate to the National Assembly on the progress made in fulfilling the Republic’s international obligations. During the term of office, which is limited to two terms, the President enjoys immunity from criminal and civil proceedings.
Ministers are designated as Cabinet Secretaries of which there can be no less than fourteen (14) or more than twenty-two (22). Any member of the National Assembly supported by a quarter of all members can propose a motion requiring the President to dismiss a Cabinet Secretary. If the motion is supported by one third of the members of the Assembly, the Assembly must appoint a Select Committee to investigate the matter and report back to the Assembly in ten days. If a majority votes for removal, the President is required to dismiss that person.
Cabinet Secretaries are required to attend before a Committee of the National Assembly when required to do so by the Committee and to answer any questions pertaining to any matter for which they have ministerial responsibility.
Judiciary
A judge shall retire from office on attaining the age of seventy years, but may elect to retire at any time after attaining the age of sixty-five years. The Chief Justice holds office for a maximum of ten years or until retirement, whichever is the earlier. A Judiciary Fund, administered by the Chief Registrar of the Judiciary and funded out of the Consolidated Fund, is to be used for administrative expenses of the Judiciary and such other purposes as may be necessary for the discharge of the Judiciary’s functions.
For adherents of Islam, there is a Kadhis’ court with jurisdiction to determine questions of Muslim law relating to personal status, marriage, divorce or inheritance. The Constitution also provides for the devolution of power including county governments, and the equitable sharing of national and local resources throughout Kenya. The stated objective of devolution is the decentralisation of State organs, their functions and service and enhancing checks and balances and the separation of powers. Every county is headed by an elected governor and has a county assembly and a county executive committee.
Devolution of Power
The Fourth Schedule sets out the respective functions of the national government and the county governments. Some of these functions are strictly separated, such as foreign affairs, international trade, immigration and citizenship, tertiary education, monetary policy, and the courts which are functions reserved for the national government. Functions reserved for the counties include county health services, county transport, and county planning and development while some overlap and may be exercised at both national and county levels. These include culture, sport and the control of pollution.
Revenue raised nationally is to be shared equitably among the national and county governments.
County governments may be given additional allocations from the national government’s share of the revenue, either conditionally or unconditionally. Criteria for equitable sharing are set out in Article 203 but the amount allocated to county governments must not be less than 15% of the national revenues of the preceding year.
Article 204 provides for an Equalisation Fund into which is paid one half of one per-cent of all revenue collected by the national government each year. The Equalisation Fund is to be used by the national government only for the purpose of providing basic services such as health, water, roads and electricity to marginalised areas. Parliament may only pass Bills that appropriate funds from the Equalisation Fund on the recommendations of the Commission on Revenue Allocation that must obtain approval by the Controller of Budget for all withdrawals from the Fund.
At the national level there is a Consolidated Fund and for all counties there is a Revenue Fund.
Into these funds are placed all revenues and from which payments must be approved by the respective legislative assembly. Only the national government may impose income taxes; value added taxes; excise taxes as well as customs and other duties on the import and export of goods.
A county may impose property rates; entertainment taxes; and any other taxes authorised or imposed by an Act of Parliament. Both the national and county governments may impose charges for services.
Finance and taxation
A waiver of any tax or licensing fee may only be granted if authorised by law. A public record of each waiver must be maintained along with the reason for the waiver. Each waiver must be reported to the Auditor-General. Article 210 specifically states that there can be no law excluding the President and judges as officers of the State as excluded from the payment of income tax. In Guyana, the official emoluments of the President, the Chancellor of the Judiciary, the Chief Justice and the Auditor General are exempt from income tax.
There are detailed provisions regulating the preparation and timing of national and county budgets and contingencies and audits. The report of the Auditor General has to be submitted to the Parliament or the County Assembly within six months of the end of every year and must be considered and debated within three months. The Constitution provides for a Salaries and Remuneration Commission to set and regularly review the remuneration and benefits of all officers of the State and advise the national and county governments on the remuneration and benefits of all other public officers.
Constitutional Commissions
A member of a Commission, or the holder of an independent office, other than an ex officio member, is appointed for a single term of six years and is not eligible for re-appointment, and unless ex officio or part-time, such any officer may not hold any other office or employment for profit, whether public or private.
Some of the Commissions provided for in the Constitution are:
● Commission on the Implementation of the Constitution set up to monitor, facilitate and oversee the development of legislation and administrative procedures required to implement the Constitution. That body is required to co-ordinate with the Attorney – General and the Kenya Law Reform Commission in preparing, for tabling in Parliament, the legislation required to implement this Constitution; and to report regularly to the Constitutional Implementation Oversight Committee on the progress and impediments in the implementation of this Constitution;
● A Human Rights and Equality Commission whose functions include investigation into the conduct in state affairs, or any act or omission in public administration in any sphere of government, that is alleged or suspected to be prejudicial or improper or to result in any impropriety or prejudice as well as to receive complaints about the abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct;
● A Land Commission to manage public land on behalf of the national and county Governments and to recommend a national land policy to the national government;
● An independent Ethics and Anti-corruption Commission to deal with the conduct and financial probity of officers of the State whose activities are in any case restricted by dictates of the Constitution; and,
● A Commission on Revenue Allocation to make recommendations concerning the basis for the equitable sharing of revenue raised by the national government between the national and county governments; and among the county governments.
The Constitution provides for members of the public to be represented on several of the commissions while the following commissions and independent offices have the power to summon persons including public officials in any of their investigations:
(a) the National Human Rights and Equality Commission;
(b) the Judicial Service Commission;
(c) the National Land Commission; and
(d) the Auditor-General
Unlike Guyana there is no Office of the Ombudsman or Public Procurement Commission. However, in respect of procurement the Article 227 of the Constitution of Kenya requires the enactment of an Act of Parliament that prescribes the framework within which policies relating to procurement and asset disposal shall be implemented.
Giving effect to the Constitution
Apart from resolutions of Parliament or referenda, as appropriate, the Constitution provides for citizens to propose amendments to the Constitution by a popular initiative signed by at least one million registered voters. But it is Article 258 that I find very attractive, giving every person who claims that the Constitution has been contravened or is threatened with contravention, the right to institute court proceedings. In other words, the locus standi rule which requires a person bringing an action to show a direct interest in the matter, does not apply and any citizen can institute such a suit to enforce the Constitution whether or not it affects that citizen.
The Fifth Schedule sets out the time within which the various provisions of the Constitution are to be implemented. The Schedule requires that the necessary legislative measures must be enacted within one year to four years. In the case of any provision not specifically identified in the Schedule, the legislative time limit for these to be addressed is five years.
If Parliament fails to enact any legislation as required by the Constitution within the specified time, any person may petition the High Court for a declaratory order. The order is transmitted to Parliament and the Attorney-General directing them to take steps to ensure that the required legislation is enacted within the period specified in the order.
While the commission which reviewed the 1980 Constitution after the contentious 1997 elections may have had several of the ideas now enshrined in the Kenya Constitution, the opposition parliamentary parties that constituted the Commission and the members of civil society and the public which made submissions, obviously failed to anticipate the extent to which the PPP/C would have frustrated progressive changes to the 1980 Constitution or even to implement the recommendations coming out of that exercise.
Conclusion
President Barack Obama whose father hails from Kenya welcomed that country’s new constitution as an important step that sets “a positive example for all of Africa and the world.” It is an example from which we in Guyana can certainly benefit.
But as the ruling PPP/C and President Jagdeo have strengthened their hold on the country, its institutions and its purses, they have shown no interest in any constitutional reform. As a result, they have also failed to implement several important provisions in the existing constitution such as the appointment of an Ombudsman and the Public Procurement Commission, allocation of revenues to the regions, the proper use of the Consolidated Fund and the integrity of the financial system.
As a result, instead of enjoying a modem, progressive constitution, Guyana, in many key areas, is actually worse off. That we seem to have neither an appetite nor a willingness to address our constitutional backwardness may explain several of the fundamental defects that stifle the country’s development.