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"id": 223229,
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"speaker_name": "Ms. Karua",
"speaker_title": "The Minister for Justice and Constitutional Affairs",
"speaker": {
"id": 166,
"legal_name": "Martha Wangari Karua",
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"content": "Mr. Temporary Deputy Speaker, Sir, the principal object of this Bill, which was negotiated by the Multi-Sectoral Forum, is to provide a road map for the completion of the review. I want to say at the outset that the Multi-Sectoral Forum comprised of all shades of opinion in this Parliament. Note that I am not talking of parties but of \"all shades of opinion\", because people have since moved from the parties that brought them to Parliament and are subscribing to other new fora. We, therefore, decided to do a reality check and invite people on the basis of shades of opinion represented in Parliament. Additionally, we invited political parties that are not represented in Parliament. We also invited the Centre for Multi-Party Democracy to further represent political parties out of Parliament. We then negotiated with the civil society representation and came up with the Multi- Sectoral Forum, which was fairly representative, and which consisted of all sectors that ought to be represented in the review process. Mr. Temporary Deputy Speaker, Sir, in this forum, the question that we were in the first instance exploring was whether it was possible to have a comprehensive review of the Constitution before the general election. We answered that question in the affirmative, and this Bill was supposed to have been passed last year, in which case the calendar would have run from November, 2006 to September, 2007. That calendar is no longer feasible and, most probably, during the Committee Stage, necessary amendments to the time-table will have to be moved. 1116 PARLIAMENTARY DEBATES May 3, 2007 I want to say that, as we are all aware, Members of Parliament are meeting under the Chair of the Leader of Government Business to discuss the issue of minimum reforms. The Bill I am presenting today deals not with minimum reforms but with the comprehensive review of the Constitution. It must be underscored that the ultimate goal for Kenyans is a total overhaul of the Constitution. That is what this Bill represents. The moving of this Bill, therefore, is not in contradiction with what is happening in the parliamentary forum, which is dealing strictly with the issue of minimum reforms. I have indicated that the Multi-Sectoral Forum had representatives from all sectors. The youth and the faith-based organisations were represented. We had the Episcopal Conference representing the Catholic Church, the National Council of Churches of Kenya representing Protestants, the Seventh Day Adventist Church, the Evangelical Alliance, Muslims, Hindus and Sikhs. Women were represented by two broad women umbrella organisations, namely, the Women Political Caucus and the Women Political Alliance. We also had the Civil Society Movement, the business constituency constituting the Kenya Private Sector Alliance (KEPSA), the Federation of Kenya Employers, and trade unions represented by Central Organization of Trade Unions (COTU) and the Kenya National Union of Teachers (KNUT). We also had the professionals represented by the Law Society of Kenya (LSK) and the Association of Professional Societies in East Africa. We also had the disability movement represented. The shades of political opinion represented were the Kenya African National Union (KANU), Liberal Democratic Party (LDP), National Rainbow Coalition (NARC), NARC(K), Democratic Party of Kenya (DP), New KANU, Alliance Party of Kenya, FORD(P), FORD(K), FORD(A), Shirikisho Party, SAFINA, National Party of Kenya, Mazingira Greens Party of Kenya, Sisi kwa Sisi; indeed, all parties represented in Parliament and those outside Parliament. In a nutshell, the multi-sectoral review forum was, and is still, a most comprehensive review forum. It did deliberate for quite a while and the Bill before the House today, is a result of those negotiations by that very broadly-represented forum. Mr. Temporary Deputy Speaker, Sir, this Bill proposes the organs of review. One of the organs of review, as suggested here, is the Council of Reference. The Council of Reference which is proposed will be a body corporate. It is the organ which will negotiate the contentious issues and prepare a harmonised draft constitution. The Council will be the principal organ of review, just like the former Constitution of Kenya Review Commission (CKRC). It will be independent and autonomous in its operations. Other organs of review are the Constitutional Conference, which will debate and adopt the harmonised Draft Constitution, the National Assembly which will adopt it before the Referendum and the Electoral Commission of Kenya (ECK) which will organise and conduct the Referendum. The Bill also envisages that the President will promulgate the new Constitution. The membership of the Council of Reference shall be drawn from stakeholders whom I have outlined; political parties, civil and professional societies, religious and youth organisations, women and minority groups. Mr. Temporary Deputy Speaker, Sir, I will now move to the provisions of the Bill. This is a Bill which is intended to facilitate the completion of the review of the Constitution by the people of Kenya for connected purposes. We recognise that we are not starting from scratch. Kenyans have been on this business of the review process for over one decade. We, therefore, recognise that we have a wealth of documents which make a reference point in the review process. One of them is the Bomas Draft, which is described here as meaning, the document which was produced by the National Constitutional Conference on 15th March, 2004, under the expired Act. We also have the proposed new Constitution which was commonly referred to as the Wako Draft, which means, the May 3, 2007 PARLIAMENTARY DEBATES 1117 proposed new Constitution which was submitted to Kenyans during the Referendum on 21st November, 2005. It means that the principal documents which we shall be referring to when completing the review will be the Bomas Draft, the document commonly referred to as the Wako Draft, that is, the proposed new Constitution subjected to the Referendum in 2005 and any other documents that are relevant, like the views collected from Kenyans and collated by the CKRC, which are all in our archives. The objects of the review process are clearly spelt out in Section 3. One of them is to guarantee peace, national unity and integrity of the Republic of Kenya, in order to safeguard the well-being of the people of Kenya. This clearly indicates that the review of the Constitution is for the benefit and welfare of all Kenyans, and also to guarantee their peace and national unity. It is, therefore, wrong for any one sector; whether the political class or any other sector to take constitutional review, as a tool for politicisation and other political gains. The Constitution is for posterity and we should all embark on the review process with only one objective; bringing a new order in our country. The other objective is establishing a free and democratic system of Government that guarantees good governance, constitutionalism, rule of law, human rights, gender equity and equality, and affirmative action. It is also intended that the new Constitution will help Kenyans to demarcate divisions of responsibility among the various state organs, including the Executive, Legislature and Judiciary, so as to create checks and balances between them. It is also intended to ensure accountability of each organ and also of the Government and its officers, to the people of Kenya. I would like to underscore here that we have to ensure, in the new order, that the Legislature, to which we belong, becomes accountable to the people of Kenya, more than it is today. The Constitution is also intended to enhance people's participation in the governance of the country, through democratic free and fair elections. It should provide also for devolution and exercise of power. It is also intended to enable us to respect our ethnic and regional diversity and communal rights. Mr. Temporary Deputy Speaker, Sir, the new order also should guarantee the provision of basic needs to all Kenyans, through the establishment of an equitable framework for economic growth and equitable access to national resources. This is very necessary, so that we can live in a society where every time we talk about leadership, we do not refer to our ethnicity. It will also ensure that we live in a society where everybody is able to access the national resources and services equitably. Then, tribalism will die a natural death. Even leaders who like promoting tribalism, while denying that they are tribalists, will find that there is no fertile ground for promoting tribalism. I have already indicated that the organs of review are the Council of Reference, Conference, National Assembly and Referendum. The guiding principles are very well-spelt-out in Clause 5 of the Bill, one of them being to ensure that the national interests prevail over regional or sectoral interests. This is in remembrance of the fact that one of the objectives of the review is peace, unity and integrity of the Republic of Kenya. Therefore, Mr. Temporary Deputy Speaker, Sir, the guiding principle following that objective is to ensure that the national interests override all other interests. In performing the duties of reviewing the Constitution, all those engaged in the review process shall be accountable to the people of Kenya and ensure that it accommodates the diversity of the people; including their socio- economic status, race, ethnicity, gender, religious and age, among others. It is also the duty of those engaged in the review process to provide the people of Kenya with an opportunity to actively, freely and meaningfully participate in generating and debating proposals to the review process. This will ensure that the review of the Constitution is by Kenyans, 1118 PARLIAMENTARY DEBATES May 3, 2007 for Kenyans. We also must be guided by the principle of stewardship and responsible management. We must be open and guided by respect for principles of human rights, equality, affirmative action, gender equity and democracy. We must also ensure that the outcome of the review process faithfully reflects the wishes of the people of Kenya. Mr. Temporary Deputy Speaker, Sir, it is hoped that we shall learn from the processes we have undergone and that by now, we all acknowledge that neither the Government nor the Opposition, indeed, nor any other sector can, on its own, deliver to the people of Kenya a new Constitution. However, reasoning together and for the welfare and interest of Kenyans; placing Kenya above self, we can deliver a new Constitution. What is the composition of the Council of Reference? Its establishment is provided for in Part II, Section 6. Like I said before, the Council shall be a body corporate with perpetual succession. It shall be capable of suing and being sued and doing all other things that corporate bodies do. It shall consists of 104 persons; 91 of whom shall be nominated by the organs set out in the Second Schedule; majority of whom I read, when giving the composition of the multi-sectoral forum. Thirteen of these shall be nominated by the Parliamentary political parties in proportion to their numbers in the National Assembly as agreed by the parties and appointed by the President. All the organisations specified in the Second Schedule; that is the organisations as agreed in the multi-sectoral forum, shall each nominate the number of persons specified in that Schedule. Mr. Temporary Deputy Speaker, Sir, the Attorney-General or his representative and the Director shall be ex-officio members of the Council without the right to vote. The reference to the Director here means the Director appointed under proposed Clause 10 of this Bill, who will be the director heading the Secretariat for the Council of Reference; in other words, the CEO of the Council of Reference. In nominating the persons for appointment as members of the Council of Reference, all the organisations enumerated in the Second Schedule are obligated by Clause 6, subclause 7 that they must have regard to Kenya's ethnic, geographical, cultural, political, social and economic diversity and the principle of gender equity, equality and affirmative action. This is to further buttress the principle of inclusiveness and especially, that of ensuring that the marginalised groups get a voice. The procedure of nominating members to the Council is given in Clause 7 and also the qualifications are given in Clause 8. It provides that, for a person to be appointed as a member of the Council, they must have knowledge and experience in public affairs. No person shall be qualified to be appointed unless they are citizens of Kenya and are able to speak, unless incapacitated by blindness or other physical cause, to read Swahili and English languages well enough to take an active part in the proceedings of the Council. Such persons must be of sound mind, good character and integrity. They must also not be undercharged bankrupt. Mr. Temporary Deputy Speaker, Sir, Clause 9 indicates that there will be two co-chair persons of the Council of Reference and two deputy co-chair persons who will be elected from among the members. Each of those positions shall be held by people of opposite gender. This is again, the principle of inclusiveness, including inclusiveness in terms of gender. The Council shall also elect two joint secretaries of opposite gender from among its members. These will be the ones responsible for the management of the meetings and preparations of the reports. Just like the Constitution of Kenya Review Commission (CKRC), the Council shall have a Secretariat headed by a Director who will be the CEO and the duties of the director are spelt out in Clause 10. It will also have staff as spelt out in Clause 11. Any person appointed to the Council shall subscribe to an oath as shown in the Third Schedule, or an affirmation, prior to taking up the duties. The Bill also proposes a code of conduct for those engaged in the review process. This is basically to ensure that the deliberations are conducted in an atmosphere of civility which is May 3, 2007 PARLIAMENTARY DEBATES 1119 necessary to enable the review process to go on smoothly. This will also help to avoid the pandemonium that Bomas was. We must learn from the journey that we have undertaken; that, we cannot be able to listen and to reason together and to listen to one another if civility is not maintained. Mr. Temporary Deputy Speaker, Sir, the tenure of office of members of the Council is provided for in Clause 17, including that a Council member may resign by notice in writing and what should happen thereafter if there is a vacancy. The functions and powers of the Council are spelt out in part III. This is basically; one, to be the principal organ of the review process. They will provide policy direction to guide the process, oversee operations of the steering committee, identify contentious issues in the proposed new Constitution which was rejected at the Referendum and also in the Bomas Draft, and also any other draft that the Council may consider appropriate. They are mandated to negotiate the resolution of the identified contentious issues, and on the basis of the two previous drafts, that is, the 2005 Draft Constitution and the Bomas Draft Constitution and any other materials, prepare a harmonised draft constitution for presentation to the Constitutional Conference. They are also mandated to establish an audit, monitoring and evaluation mechanisms to ensure compliance with the principles and objects of the review process and that the draft constitution produced by the conference is entirely consistent and is of the highest legislative drafting standards. It is the duty of the Council of Reference to ensure that this happens. It is their duty also to conduct and facilitate civic education in order to stimulate public discussion and awareness on constitutional issues. They are also supposed to carry out studies, research and evaluation concerning the Constitution and any other constitution and all constitutional systems. In other words, they may have comparative studies in order to inform themselves as they embark on this very important task. Mr. Temporary Deputy Speaker, Sir, with regard to the powers conferred upon the Council, if they deem it necessary, they may summon any public officer or other persons to appear before them or to produce any document or any information which they may consider relevant in their work. This is a condition that was there even in the previous Constitution of Kenya Review Act. Mr. Temporary Deputy Speaker, Sir, Clause 17 establishes a steering committee which shall be composed of 43 members appointed by the Council from amongst its members. The Council has 104 members. The steering committee will have about half the membership of the Council. This shall be the principal organ of the Council in the execution of its functions. In other words, it is like an executive committee. The Council is also empowered to establish such other committees as it may consider necessary in the carrying out of its mandate. The procedure the Council will adopt is spelt out in Clause 18 and like in any other committee, it shall regulate its own procedures and that of its committee. The Council is empowered to hold such number of meetings at such places and times and in such manner as they consider it necessary. In other words, it is totally autonomous in executing its duties. The quorum of the Council and that of its committee is prescribed at two-thirds of its members. It is also emphasised in Clause 18(4) that all questions before the Council or its committee shall be determined by consensus."
}