Kenya MPs hope for 19 changes on draft law

Kenyan lawmakers have outlined at least 19 sections they want changed in the country's proposed constitution currently undergoing debate in Parliament.

Speaker Kenneth Marende says more amendments are still with Parliament's legal team.

Next Wednesday, Parliament will debate all amendments listed on the Order Paper as MPs make their proposals on the draft Constitution.

This is the first day of making proposals on the floor of the House, coming just two days after the MPs disagreed on their proposals at a consensus-building meeting at Nairobi’s Kenya Institute of Administration.

The House will then have until Thursday next week to discuss the amendments. If the proponents of the amendments fail to marshal the support of 145 MPs –65 per cent of the lawmakers—then the draft will be endorsed the way it is and presented to the Attorney General.

If any of the amendments succeeds, then the proposals will go to the Committee of Experts, for redrafting, and then brought back to the House for endorsement by just a simple majority of the MPs.

Not obliged

The CoE, as the principal driver of the review process is not obliged to take on board the proposals by the MPs, especially if these proposals go against the wishes of the majority of Kenyans.

The first amendment on the floor is that by Mr Mutava Musyimi, (Gachoka, PNU) who seeks to introduce two new clauses under State and Religion. The two clauses are: “State and religion shall be separate” and “The State shall treat all religions equally.”

The draft Constitution before the House has only one clause, which reads: “There shall be no State Religion.”

With this amendment, Mr Musyimi, a former secretary general of the National Council of Churches of Kenya, lays the foundation for quashing the Kadhi Courts out of the Constitution.

Mr Musyimi follows up this proposal with another one in the Bill of Rights. His amendment seeks to delete a proposal that gave Muslims a chance to enjoy their freedoms under Kadhi’s courts.

Then, he goes to clause 169 (which recognises the courts as ‘subordinate courts’) and proposes that the Kadhi’s Court be deleted.

The former NCCK spokesman completes his amendments with a final one that deletes clause 170 (on the role of Kadhi’s Courts) and proposes the establishment of religious courts.

His proposal on the new clause 170 reads:

“(1) There shall be religious courts with jurisdiction in matters relating to personal status, marriage, divorce and inheritance where all parties subscribe to the same religion and agree to submit to the jurisdiction of such courts.

(2) The State shall not use any of its resources for the establishment or operation of any the courts referred to under clause (1).

(3) Parliament shall enact legislation to give full effect to this Article.”

Effectively, this gives the room for Christians to establish their courts, and appeases the evangelical clerics who have vehemently opposed the Kadhi Courts.

He further proposes that the Constitution limits employment of people to religious courts to just those who profess that religion, and that this ought not to amount to discrimination on the basis of religion.

Mr Musyimi needs 145 MPs for his proposal to succeed, never mind that many of the MPs have argued that the issue of Kadhi courts was never controversial in the first place.

Abortion debate

Public Health Minister Beth Mugo (Dagoretti, PNU) seeks to put an end the debate that the draft as currently drafted gives room for abortion.

Mrs Mugo’s proposal reads: “(4) Termination of pregnancy is not permitted, but expectant mothers are entitled to emergency medical treatment in life threatening conditions.”

This new paragraph will replace the fourth paragraph under ‘Right to Life’ which currently reads: “Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger or if permitted by any other written law.”

Pro-life groups in the country had argued that as drafted, this clause was open to misinterpretation and gave Parliament the nod to write a law to legalise abortion.

Regional Development assistant minister Katoo ole Metito (Loitoktok, Narc-K) has proposed that the draft be amended to have national parks, game reserves and government animal sanctuaries classified as ‘Community Land” and not “Public Land” as prescribed in the draft Constitution.

Mr Metito comes from the Maa communities whose members live close to the Maasai Mara Game Reserve and border the Amboseli Game Park. There are many animal sanctuaries in the area.

Boundary review

Mr Abdul Bahari (Isiolo South, Kanu) has proposed that the House inserts a new clause to bar the ‘loss’ of constituencies when new boundaries are being drawn.

This clause exists under the Transitional and Consequential clauses, but had barred the Interim Independent Boundaries Review Commission from merging constituencies under the first review expected after 2012. The MP wants the proposal deleted from the Sixth Schedule –The Transitional and Consequential clauses.

If Mr Bahari’s proposal sails through, then the current boundaries, many of them a product of political gerrymandering, will continue to exist and is likely to perpetuate the hugely skewed representation that exists today.

The Isiolo South MP also proposes that sparsely populated areas should not be subject to the 40 per cent variance in area-population ratio for every constituency as proposed by the draft Constitution.

He wants the clause amended to “give special consideration to sparsely populated areas and marginalized communities” when delimiting boundaries. The geographical size of area under representation is what Mr Bahari wants given more priority.

There’s also one clause in the draft that directs that an MP who misses eight sittings of the House without the permission of the Speaker, will lose the seat. Mr Bahari proposes that this be amended to read “eight consecutive sittings.”

The Vice Chairman of the Parliamentary Service Commission, Mr Walter Nyambati (Kitutu Masaba, NLP) proposes that a special fund be created for Parliament.

The government will allocate money specifically to this fund and as such any monies remaining at the end of a financial year, will be deposited into this fund and not returned to the Treasury, as is the practice now. Grants to Parliament will also go into this fund.

Mr Nyambati also proposes that the Clerk of the National Assembly be designated the secretary of the commission. This position as per the draft Constitution is to be held by the Clerk of the Senate.

Another proposal is to have the National Assembly appoint five members to the commission while the Senate appoints just two.

The draft Constitution directs that the National Assembly appoints four commissioners “nominated equally from both Houses by the party or coalition of parties forming the government” two of them women. The remaining three were to be picked by the opposition parties, at least one from each House and at least one woman.

Presidential terms

Mr Mohammed Affey (nominated, ODM-K) also proposes to raise the threshold for one to be declared President. He seeks to change the requirement for one to garner 25 per cent of the votes in “more than half” the number of counties” to “two-thirds” the number of counties”.

Mr Martin Ogindo (Rangwe, ODM) closes the door on the two-term presidential term limit, with a proposal to have the Constitution expressly state that one can only hold office for two-terms “in a lifetime.”

Mr David Ngugi (Kinangop, Sisi kwa Sisi) proposes a new clause to give the President powers to sack the Attorney General or to have the AG resign upon submitting a notice to the President. This closes the door on the security of tenure currently enjoyed by the AG.

Mr Ekwe Ethuro (Turkana Central, PNU) also adds to the list of amendments with a new proposal to increase the constituency development fund kitty to 10 per cent of the national revenues. The current allocation as prescribed in law is 2.5 per cent of the national revenues.
The push for counties as units of devolution is brought to the House by Mr Jeremiah Kioni (Ndaragwa, PNU) who seeks to increase the number of counties from the 47 prescribed in the draft to 77 –an additional 30 counties.

His proposal seeks to split Nairobi, listed in the draft Constitution as one county, into four counties: Lang’ata, Westlands, Embakasi and Kasarani. Meru (a single county in the draft) will also be split into three: Meru Central, Meru South and Meru North. Elgeyo-Marakwet county proposed in the draft was split into East Pokot, West Pokot, and Marakwet.

Turkana was also split into two: Lodwar, Lokitaung and so was Nandi which Mr Kioni proposes should also be split into two—Nandi North and Nandi South.

The other new counties proposed by Mr Kioni are: Malindi, Mwingi, Mbeere, Ndaragwa, Moyale, Garissa, Ijara, Trans Mara, Kuria, Kisii Central, Gucha, Teso, Mt Elgon, Lugari, Butere-Mumias, Bureti, Koibatek, Samburu, Suba, Rachuonyo, Thika, Maragua and Nyandarua.

Mr John Mututho (Naivasha, Kanu) has revived the coalition animosity with a proposal to delete the transitional clauses for the Chief Justice. In the draft, the Chief Justice is required to vacate office after six months following the enactment of the new Constitution. A new Chief Justice would then be appointed after consultations between the President and the Prime Minister as envisaged in the National Accord.

However, Mr Mututho proposes that all these be deleted. ODM and PNU clashed at KIA over this proposal, with PNU seeking to have the clause deleted, while ODM insisted that the new Constitution was a product of the National Accord and thus no changes should be made to the Transitional and Consequential clauses.

Mr Mututho also proposes that all judges removed from office after the vetting, shall be paid all their emoluments.