How BBI referendum would alter the Kenyan Constitution

Some proposals do not require referendum once passed by Parliament which is the next stage.

In Summary

• The BBI report put forth a raft of proposals that will alter the 2010 Constitution substantively creating a new Constitutional dispensation.

• There are proposals that touch on issued listed in Article 255 of the 2010 Constitution that must be subjected to a referendum.

24 Counties were needed to pass the Bill
24 Counties were needed to pass the Bill

On Tuesday, Kenya edged closer to a referendum after more than 24 County Assemblies passed the Constitution of Kenya (Amendment) Bill, 2020.

The Bill arose from the Building Bridges Initiative report which was made public on October 21, 2020, and set Kenya on a path of far-reaching constitutional reforms.

Borne from the March 2018 handshake between President Uhuru Kenyatta and opposition leader Raila Odinga, the BBI report put forth a raft of proposals that will alter the 2010 Constitution substantively creating a new Constitutional dispensation.

Some of the proposals in the Bill will not require to go to a referendum once passed by Parliament which is the next stage. 

However, there are proposals that touch on issued listed in Article 255 of the 2010 Constitution that must be subjected to a referendum.

These are issues relating to (a) the supremacy of this Constitution; (b) the territory of Kenya; (c) the sovereignty of the people; (d) the national values and principles of governance referred to in Article 10 (2) (a) to (d).

Others are (e) the Bill of Rights; (f) the term of office of the President; (g) the independence of the Judiciary and the commissions and independent offices to which Chapter Fifteen applies;  (h) the functions of Parliament; and (i) the objects, principles and structure of devolved government.

The BBI sponsored Constitution of Kenya (Amendment) Bill proposes to alter 70 Articles of the 2010 Constitution.

This article examines the provisions of the 2010 Constitution to changes proposed by the Bill from the first amendment.

NEW ADDITIONS

The first amendment introduces a new Article 10A titled Regional Integration and Cohesion.

It states that "This Constitution embraces the goals of African Unity and political confederation of the eastern Africa region as integral towards the attainment of sustainable development, prosperity for all and stability."

The second clause states that the State shall take legislative, policy and other measures to give effect to regional integration and cohesion.

Currently, Article 10 outlines the national values and principles of governance that bind all when interpreting, implementing and making policy decisions on all matters in the Constitution.

The second amendment introduces a new Article 11A titled: Economy and Shared Prosperity.

It states that the Constitution recognises the need for an economic system that provides equitable opportunities for all Kenyans to benefit from economic growth in a "comprehensive, fair and sustainable manner."

It also outlines the things that the government shall promote to ensure this is achieved.

The third amendment is a new Article 18A titled: Responsibility of a Citizen whose first clause says that the Constitution recognises the responsibilities of a citizen as key to building a prosperous, fair and secure nation.

It then lists nine responsibilities that the Constitution assigns to all citizens and also non-citizens, where appropriate.

Currently, Article 18(f) only states that "Parliament shall enact legislation prescribing the duties and rights of citizens."

The fourth amendment relates to Article 31 on Privacy by introducing a new clause (e) which states; "Every person has the right to privacy, which includes the right not to have their personal data infringed.

The fifth amendment relates to Article 80 relating to Legislation on leadership by introducing a new clause (aa) which states that "Parliament shall enact legislation for the effective and expeditious investigation, prosecution and trial of cases relating to this Chapter (Six).”

Chapter Six of the 2010 Constitution deals with Leadership and Integrity.

ELECTORAL REFORMS

The sixth amendment introduces a new clause to Article 82(1) which provides for what kind of laws on elections that Parliament should enact.

The new clause - Article 82(1)(f) - states that "Parliament shall enact legislation to provide sanctions for a political party that fails to comply with the principle that not more than two-thirds of the party's candidates are of the same gender.”

The seventh amendment proposes to amend two clauses in Article 87 which deals with Electoral disputes.

There is an amendment is to 87(1) which states that; "Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes." The proposal is to expand it by adding “including those arising from the nomination of candidates by a political party”.

There is an amendment to 87(3) that states; "Service of a petition may be direct or by advertisement in a newspaper with national circulation." The proposal is to add the words “or through electronic media”.

The eighth proposed amendment relates to Article 88 which related to the Independent Electoral and Boundaries Commission here three clauses are to be amended and three new ones introduced.

Currently, Article 88(2)(a)(i) states that a person is not eligible for appointment to IEBC if they have at any time within the preceding five years, held office, or stood for election as MP or MCA.

The proposed amendment expands the lists to include a President, Deputy President, a county governor, a deputy county governor.

Article 88(4)(d which lists the functions of IEBC to include "the regulation of the process by which parties nominate candidates for elections" is to be amended to add the words "including ensuring that not more than two-thirds of the party's candidates are of the same gender."

The BBI Bill also deletes Article 88(4)(e) which lists "the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results." as one of IEBC's functions.

Amendment number nine in the BBI's Constitution Amendment Bill relates to Article 89 which relates to the Delimination of electoral units.

The Bill amends Article 89(1) to change the number of Constituencies from "two-hundred and ninety (290)" to "three hundred and sixty (360)".

The tenth amendment is to delete the wordings of Article 90(1) in regards to nominated members in the National Assembly (Article 97) and the Senate (Articles 98(1)(b), (c) and (d).

The amendment is aimed at aligning the clauses with the new provisions related to the new composition in the National Assembly and the Senate.

Article 90(3) is also amended to indicate that nominated seats shared on basis of the number of votes won in the last general election. Currently, the sharing is based on the number of seats won in the election.

The eleventh Constitutional amendment proposed by BBI relates to Article 96 which deals with the role of the Senate.

It amends Article 96(3) to state that "The Senate determines the revenue allocated to, raised by, or otherwise received by county governments and their expenditure."

Currently, the provision reads; "The Senate determines the allocation of national revenue among counties, as provided in Article 217, and exercised oversight over national revenue allocated to county governments."

CHANGES TO PARLIAMENT

The twelfth amendment relates to Article 97 which outlines the Membership of the National Assembly.

Currently, the membership of the National Assembly has 1) 290 Elected from single-member constituencies; 47 Women (one per county); 12 Nominated from special interest groups; and the Speaker (ex officio).

The BBI proposal amends Article 97(1) to provide the new membership as 360 Elected from 290 single and multiple-member constituencies; four members (two men and two women) representing persons with disabilities; four members (two men and two women) representing the youth; and the number of special seat members necessary to ensure that no more than two-thirds of the members of parliament are of the same gender.

The membership also includes Speaker (ex officio); Leader of Official Opposition; Attorney General (ex officio); and Cabinet Ministers, who are not Members of Parliament, (ex officio).

Filling the special seats will be determined after the declaration of elected members from each constituency with candidates who stood for the election filing them with precedence given to those who received the greatest number of votes.

The 13th amendment relates to Article 98 which outlines the Membership of the Senate.

Currently, the membership of the Senate has 47 Elected (one per county); 16 Women; 2 Youth (male & female); 2 Persons with disabilities (male & female); and the Speaker (ex officio).

The BBI proposal amends Article 98(1) to provide the new membership as 47 men (one per county); 47 women (one per county); and the Speaker (ex officio).

The 14th amendment proposes the deletion of paragraph d of Article 99(2) that states that a person is disqualified from being elected a member of Parliament if the person is a member of a county assembly.

The 15th amendment relates to the introduction of a new Article 107A on the Leader of Official Opposition providing that the position goes to the person who gets the second highest votes in the presidential election.

If that person cannot assume office, the office becomes vacant and the political party or coalition not forming government nominates another person for the position.

It also provides that one cannot be the Leader of Official Opposition is the Prime Minister is appointed from their political party or coalition of parties.

The 16th amendment proposes to amend the Constitution by repealing Article 108 on the Order of Precedence in the National Assembly.

Currently, the following order of precedence is observed in the National Assembly:

  1. the Speaker of the National Assembly;
  2. the leader of the majority party; and
  3. the leader of the minority party.

If the BBI proposal goes through, the order of precedence would change to:

  1. the Speaker of the National Assembly;
  2. the Prime Minister; and
  3. the Leader of Official Opposition

The 17th amendment introduces a new Article 108A titled Party Leaders in the Senate.

It provides that there all be a leader of the majority party and leader of the minority party in the Senate while outlining the precedence as;

  1. the Speaker of the Senate;
  2. the leader of the majority party; and
  3. the leader of the minority party.

The 18th amendment proposed by the BBI Bill relates to Article 113 which relates to the Mediation Committees.

Currently, Article 113(3) states that "If both Houses approve the version of the Bill proposed by the mediation committee, the Speaker of the National Assembly shall refer the Bill to the President within seven days for assent."

BBI proposes that the Article be amended to allow the Speaker of the House that originated a mediated Bill to present it to the President for assent withing 14 days.

The 19th amendment aligns the voting in the Senate with the new structure by amending Article 114(4)(b) that provides for delegations.

The 20th amendment in the BBI report proposes the repealing of Article 123 which outlines how decisions in the Senate are made. 

Two of the issues that have triggered debate since the Building Bridges Initiative was launched concern the Executive and the Judiciary.

RETURN OF PRIME MINISTER

The 21st Constitution amendment proposed by the BBI relates to Article 130 that outlines the composition of the Executive.

The BBI report has proposed to expand the Executive by creating the position of Prime Minister with two deputies selected from the Cabinet.

Article 130 (1) of the Constitution is to be amended to insert the words “the Prime Minister, the Deputy Prime Ministers” immediately after the words “the Deputy President.”

The 22nd proposed amendment is to Article 131(1)(b) which states that the President exercises the executive authority of the Republic, with the assistance of the Deputy President and Cabinet Secretaries.

This Article is to be amended to include the new positions of Prime Minister and the two deputy Prime Ministers. Cabinet Secretaries are to be renamed to Cabinet Ministers once the amendment goes through.

The 23rd Amendment in the Bill is to Article 132 on the Functions of the President.

Paragraph 1 of Article 132 (1)(c) is to be amended to now read "The President shall once every year report, in an address to the nation, on all the measures taken and the progress achieved in the realisation of the national values, referred to in Article 10 and economic and social rights referred to in Article 43".

Article 43: Economic and Social Rights.

43. (1) Every person has the right—

(a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;

(b) to accessible and adequate housing, and to reasonable standards of sanitation;

(c) to be free from hunger, and to have adequate food of acceptable quality;

(d) to clean and safe water in adequate quantities;

(e) to social security; and

(f) to education.

(2) A person shall not be denied emergency medical treatment.

(3) The State shall provide appropriate social security to persons who are unable to support themselves and their dependants.

Articles 132(2) is to be amended to read that "The President shall nominate and, with the approval of the National Assembly, where applicable, appoint and may dismiss the Cabinet Secretaries, the Attorney General, Secretary to the Cabinet, Principal Secretaries or other state officers."

Cabinet Ministers, Secretary to Cabinet and Principal Secretaries will no longer require Parliamentary approval before appointment.

Articles 132(2)(a), 132(5), 134(2)(c), 153 and 156 are to be amended to replace the words Cabinet Secretaries with Cabinet Ministers.

The 24th amendment relates to Article 138 of the 2010 Constitution on the Procedure at Presidential election that has a provision on clause 8 indicating that a presidential election shall be cancelled and a new election held if a candidate for election as President or Deputy President dies on or before the scheduled election date.

The Bill is proposing the deleting of Deputy President from the clause to ensure that the election goes on even is a running mate of any of the candidates dies.

The 25th amendment in the Bill is Article 140(2) on Presidential Election Petitions which currently have to be determined within 14 days. This period will be extended to 30 days if the proposal is passed.

The 26th amendment proposes to introduce a new Part immediately after Article 151 titled: PART 2A - THE PRIME MINISTER AND DEPUTY PRIME MINISTERS.

Article 151A establishes the office of the Prime Minister who will be appointed by the president in accordance with the new Article 151B. It also outlines the functions of the Prime Minister.

Article 151C outlines how and when a vacancy occurs in the Office of the Prime Minister and how it is to be filled.

Article 151D relates to the Deputy Prime Ministers who will be appointed by the President among the Cabinet Ministers. It also outlines their functions and how their offices become vacant.

The 27th amendment relates to Article 152 which currently outlines the membership of the Cabinet and the appointment and removal of Cabinet Secretaries.

Cabinet under 2010 Constitution

President

Deputy President

Attorney General

14 to 22 Cabinet Secretaries

Cabinet as proposed by the BBI

President

Deputy President

Prime Minister

Deputy Prime Ministers

Attorney General

14 to 22 Cabinet Ministers

Article 152(2) requires that the President nominates Cabinet Secretaries and send the names to the National Assembly for vetting and approval. The BBI report proposes to delete this requirement.

Article 152(3) states that a Cabinet Secretary shall not be a Member of Parliament. The BBI report wants the Constitution amended to allow the President to appoint Cabinet Ministers from among members of the National Assembly.

The 28th amendment in the BBI Bill introduces a new Article 153A titled Deputy Ministers which provides for their appointment as well as their functions.

The 29th and 30th amendments relate to Articles 155 and 154(2) which require that Principal Secretaries and the Secretary to the Cabinet respectively are nominated by President and approved by the National Assembly. The BBI proposal is to do away with these requirements.

The 31st amendment relates to Article 157(3) which states that the qualifications of DPP are the same as for the appointment of a High Court judge. With the passage of the BBI proposals, the qualifications of DPP will be the same as for the appointment of a Court of Appeal judge.

The 32nd amendment proposes to repeal Article 158 that provides grounds and removal of the Director of Public Prosecutions from office.

CHANGES TO THE JUDICIARY

In its 33rd amendment, the BBI proposes to amend Article 164 where currently there is no timeframe for holding the office of President of Court of Appeal. The proposal is to indicate that the tenure shall be a single term of five years.

Currently, decisions of the Court of Appeal on any election petition can be challenged in the Supreme Court.

The proposal in the same amendment is to amend Article 164(3) to indicate that "a determination by the Court of Appeals on an appeal relating to a petition concerning an election, other than a presidential election, is final."

Currently, Article 165(2) has no timeframe for holding the office of Principal Judge of the High Court. The BBI's 34th amendment proposes an alteration to indicate that the holder shall hold office for a single term of five years.

Article 166 currently provides that the Chief Justice and Supreme Court Judges should have 15 years of experience while the Court of Appeal Judges should have 10 years of experience.

The 35th  BBIi amendment will change the Article to provide that the Chief Justice and Supreme Court Judges should have 20 years experience while the Court of Appeal Judges should have 15 years experience.

The 36th amendment related to Article 167 of the 2010 Constitution, relating to the tenure of Deputy Chief Justice which is similar to that of other judges. The proposal by the BBI is to align the tenure of Deputy Chief Justice similar to that of Chief Justice.

In its 37th amendment, the BBI Bill seeks to amend Article 168(2) on the removal of judges by including that the JSC can act on a motion by the Judiciary Ombudsman.

Article 171 outlines that the membership of the Judicial Service Commission has 11 members. The membership will rise to 12 with the inclusion of the Judiciary Ombudsman as proposed by the BBI Bill's 38th amendment. 

Under the current arrangement, JSC members are eligible for a second term of five years. The BBI changes this by deleting this provision and also introduces a new condition that advocates who are members of the JSC cannot be practising in the courts or tribunals.

In the 39th amendment, the Constitution Amendment Bill introduces a new paragraph to Article 172(1) to allow the JSC to "receive complaints against judges, investigate and discipline judges by warning, reprimanding or suspending a judge."

The 40th amendment introduces a new Article 172A creating the Office of the Judiciary Ombudsman.

The Judiciary Ombudsman is to be appointed by the President with the approval of the National Assembly.

Article 172A(3) outlines the functions of the Judiciary Ombudsman which include receiving and conducting inquiries into complaints against judges, registrars, magistrates, other judicial officers and other staff of the judiciary.

The 41st amendment relates to Article 177 of the 2010 Constitution on the Membership of the County Assembly.

It amends clause (2) to provide that nominated seats be allocated on the basis of the number of votes won by each party and not in proportion to seats won by the political parties.

Clause 4 is to be amended to indicate that the term of County Assembly to expire at the next general election and not a fixed term of five years.

It introduces a new clause that MCAs can be recalled by voters or political parties for those nominated.

The 42nd amendment is in relation to Article 179 on County Executive Committees.

Clause (2)(b) is amended to allow Governors to appoint CECs from among member of the county assembly with (3)(b) limiting MCAs in the county executive to half of the CECs. 

Currently, CECs leave office if a vacancy arises in the office of Governor but BBI will delete clause (7) and replace it with one saying Governor can reassign or replace CECs.

The 43rd amendment alters Article 180 by introducing a new clause 5A that requires candidates to consider a person of the opposite sex when running for the Office of Governor.

The 44th amendment relates to Article 188 on the boundaries of counties with clause (1)(b)(ii) being aligned with the changes in the membership of the Senate by deleting county delegations and replacing it with members of the Senate".

The 45th amendment amends Article 202 on the equitable sharing of national revenue by introducing a new clause.

The new clause provides that sharing of revenue will be based on the most recent audited accounts even if not approved by the National Assembly.

The 46th amendment relates to Article 203 of the 2010 Constitution titles equitable share and other financial laws.

Currently, Article 203 provides the criteria to be taken into account when determining the equitable share. Equitable share for counties is based on not less than 15 per cent of revenues collected by the national government.

The BBI amendments will add three new criteria - 1) Need to eradicate corruption and wastage; 2) Need to attain economic and social rights, and 3) per Capita for highest allocation not more than 3 times that of the lowest.

Equitable share for counties to be based on 35 per cent of revenues collected by the national government.

The 47th amendment relates to Article 204 on the Equalisation Fund.

The amendment pushes the lapse of the provision from 20 years to 30 years since the 2010 constitution was enacted.

It also aligns the Article to the changes in the Membership of the Senate.

The 48th amendment in the BBI Bill introduces a new Article 206A titled; Constituency Development Fund.

CDF is currently as a result of an act of Parliament but BBI established it as a Fund to facilitate performance and implementation of national government development priorities set out in the national government within the constituencies.

The 49th amendment introduces a new Article 207A establishing the Ward Development Fund.

County Governments will be required to allocate five per cent of their revenues to the Fund which is to be used for development at the Ward level.

The 50th amendment relates to Article 215 that established the Commission on Revenue Allocation.

It allows governors to nominate two people (a man and a woman) to the Commission as well as provides for one person to be nominated by the accountant's professional body.

The 51st amendment is on Article 218 which relates to Annual Division and Allocation of Revenue Bills and outlines the principles of the two Bills, what they are and what they should contain.

The Bill introduces a new clause Article 218(3) which allows for the withdrawal of 50 per cent of the equitable share of counties if Parliament has not passed the County Allocation of Revenue Act by the beginning of the financial years.

The amendment also allows the disbursement to be based on the County Allocation the Revenue Act of the immediately preceding financial year.

The 52nd amendment touches on Article 220: Form, content and timing of budgets in the 2010 Constitution.

The change introduces a new provision requiring an explanation of previous, current and proposed budgetary measures taken to achieve economic and social rights.

The amendment will also mean that the national government is required to provide the structure of development plans and budgets like Counties currently.

The 53rd amendment is on Article 224 which is amended to require that county appropriation be prepared on the basis of the Division of Revenue Act passed by Parliament under Article 218.

The 54th amendment is on Article 255 where a new clause is introduced requiring the Cabinet Minister to table the matter of stopped transfer of funds in the National Assembly in case of a State Organ and the Senate in case of a County within 30 days.

The 55th amendment is on Article 228(1) on the appointment of the Controller of Budget with the President seeking approval from the Senate and not the National Assembly as is currently the case.

The 56th amendment is on the composition and functions of the Salaries and Remuneration Commission as outlined in Article 230.

Currently, the membership is; Chairperson, One person nominated by Parliamentary Service Commission, Judicial Service Commission, Teachers Service Commission, National Police Service Commission, Defence Council, Senate (on behalf of counties), COTU, FKF, Attorney General, Treasury, A person with public service human resource management experience.

After the amendment, the membership will be Chairperson and six other members who have extensive experience in matters relating to the management of human resources and wages, appointed by the President.

Two new functions are also added to SRC; to determine and harmonise the rates paid by national and county governments to professional consultants, and need to rationalize and harmonise remuneration and benefits paid to all State Officers and public officers added as a principle.

The 57th amendment relates to Article 234 on the functions and powers of the Public Service Commission. The amendment exempts all members of national security organs and not just the police as listed currently from functions of the PSC.

The 58th amendment introduces a new Article 237A establishing The Youth Commission outlining its membership as well as functions.

The 59th amendment is on Article 240 that establishes the National Security Council with a new clause to include the Prime Minister as a member.

The 60th amendment is related to Article 243 on the establishment of the National Police Service making the Directorate of Criminal Investigation a separate entity from the Kenya Police Service.

The 61st amendment relates to Article 245 on the Command of the National Police Service which gives the Inspector General of Police powers to determine promotions, transfers of officers as well as disciplinary control through suspensions.

The 62nd amendment relates to Article 246 on the National Police Service Commission with the key change being on its functions.

The NPSC will no longer determine the promotion and transfers as well as the discipline of officers within the National Police Service.

Article 248 is amended in the 63rd BBI amendment to list the Director of Public Prosecutions as an Independent Office.

The 64th amendment is on Article 250(1) where the composition of the commission is limited to seven from the current nine.

The 65th amendment is on Article 259 on Construing the Constitution to introduce a new clause (12) which requires that the process of appointees be started six months before the lapse of the term of the officeholder.

The 66th amendment is to Article 260 include Prime Minister, Deputy Prime Minister, Deputy Minister and Judiciary Ombudsman in the definition of State Officer

The last four amendments relate to the schedules of the Constitution including a list of where the new Constituencies will be and the timelines for enacting the various enabling legislations.