How BBI proposes to change Kenya's Constitution - Part 2

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.

President Uhuru Kenyatta October 23, 2020 outside Pumwani social Hall holding a t-shirt with a photo of him and ODM leader Raila Odinga receiving the BBI report. Photo
President Uhuru Kenyatta October 23, 2020 outside Pumwani social Hall holding a t-shirt with a photo of him and ODM leader Raila Odinga receiving the BBI report. Photo
Image: CHARLENE MALWA

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

In this second instalment comparing the provisions of the 2010 Constitution and the BBI proposals, the Star highlights the changes in the Constitution Amendment Bill relating to the Executive and the Judiciary.

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



 

RETURN OF PRIME MINISTER

The 17th 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 18th 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 19th Amendment in the Bill prepared by the BBI teams 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)(a), 132(5), 134(2)(c), 153 and 156 are to be amended to replace the words Cabinet Secretaries with Cabinet Ministers.

Article 138 of the 2010 Constitution on the Procedure at Presidential election 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 by the BBI teams 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 next amendment in the Bill is to 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 23rd 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 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.

Amendment number 24 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 25th and 26th 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 next 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 are the same as for the appointment of a Court of Appeal judge.

The 3oth amendment proposes to repeal Article 158 that provides grounds and removal of Director of Public Prosecutions from office.

CHANGES TO THE JUDICIARY

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 now 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 report proposes an amendment 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 experience while the Court of Appeal Judges should have 10 years of experience.

BBI proposes amendments to 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.

Under Article 167 of the 2010 Constitution, the tenure of Deputy Chief Justice 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.

Currently, Article 171 outlines 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 report. 

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.

The Constitution Amendment Bill prepared by the BBI team also 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 BBI report 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.