How BBI proposes to change Kenya's Constitution - Part 1

This article compares provisions of the 2010 Constitution to changes proposed by the BBI report.

In Summary

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

• In the report, the BBI team put together a draft Amendment Bill that proposes to alter 58 Articles of the 2010 Constitution.

A delegate reads BBI report during its launch at Bomas of Kenya on October 26, 2020.
A delegate reads BBI report during its launch at Bomas of Kenya on October 26, 2020.
Image: ANDREW KASUKU

The much-awaited Building Bridges Initiative report was made public on October 21, 2020, 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 report puts forth a raft of proposals that will alter the 2010 Constitution substantively creating a new Constitutional dispensation.

While some of the proposals appear sound, others are seen as a way of mutilating the current Constitution by re-introducing some of the things Kenyans did away with during the last review.

 
 
 

In the report, the BBI team put together a draft Amendment Bill that proposes to alter 58 Articles of the 2010 Constitution.

This article is the first of a three-part series that compares the provisions of the 2010 Constitution to changes proposed by the BBI report.

The article covers the changes to the first six chapters of the constitution, those related to elections and those that alter the structure and functions of Parliament.



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 proposed by the BBI team 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 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 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 proposes to amend two clauses in Article 87 which deals with Electoral disputes.

The first 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”.

The second on 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 seventh 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.

The two new closes on Article 88(3A), which says that the IEBC will consist of 7 members, 4 of whom shall be representatives of political parties and Article 88(3B), which limits the tenure of commissioners to a single term of 4 years.

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 compliance with Articles 54(2) and 81(b )".

Article 54(2)

The State shall ensure the progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities.

Article 81(b

The electoral system shall comply with the following principles— (b) not more than two-thirds of the members of elective public bodies shall be 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 8 in the BBI's Constitution Amendment Bill relates to Article 90 which relates to the Allocation of party-list seats.

One proposal 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).

Another proposal is to delete paragraph c of Article 90(2)(ii) which states that;  "except in the case of county assembly seats, each party list reflects the regional and ethnic diversity of the people of Kenya."

The new clause will state that IEBC will have to ensure that; "each party list includes women, persons with disabilities, youth, ethnic and other minorities, and marginalised communities”.

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 ninth Constitutional amendment proposed by BBI relates to Article 91(1) which deals with basic requirements for political parties.

It introduces a new clause, Article 91(1)(i) stating that "Every political party shall comply with the principles in Articles 81(b) and 54(2) which related to PLWDs and gender equity.

CHANGES TO PARLIAMENT

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

The tenth 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 BBI also 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 11th 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.

The 12th 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 13th amendment proposed by the BBI report in is Constitutional Amendment 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.

The 14th amendment in the BBI report proposes the repealing of Article 123 which outlines how decisions in the Senate are made.