Kenya faces uphill task in amending Constitution

Kenyans, very much aware of the streak in their leaders, raised the threshold for amendments when they voted in the new Constitution.

In fact, a whole Chapter Sixteen was dedicated to ways of amending the Constitution, with some of the key matters requiring a referendum.

On non-key issues, it can be amended either through a parliamentary or popular initiative, but both with very high requirements to fulfil.

In spite of this high threshold to deter uncalled for changes, last Wednesday, the government tabled in the House a Bill that seeks to effect the first amendment to the Constitution.

The Constitution of Kenya (Amendment) Bill, 2011 targets two changes.

First, to move the elections date from the second Tuesday in August in every fifth year from the previous election, to the third Monday in December of that year. (READ: Supreme Court declines to rule on election date)

Second, to find ways of meeting the constitutional requirement that not one gender can hold more than two-thirds of elective positions. (READ: Storm rages over proposal to drop women seats)

Presented in the House by Justice and Constitutional Affairs Minister Mutula Kilonzo, the proposed law states in its objectives: “The Bill aims at giving full effect to Articles 27(8) and 81(b) which provides that not more than two-thirds of the members of elective public bodies shall be of the same gender.”

Tenth Parliament

The Bill then says: “The Bill further seeks to bring clarity and certainty to the term of the Tenth Parliament while also removing any doubts as to the date of the next General Election under the Constitution of Kenya 2010.”

The Bill was an initiative of the Cabinet, which through a confidential paper that we obtained, felt that it would not be possible to hold the next elections in August 2012. They gave a list of things that have to be done and concluded that the December date was the best.

“Looking at the activities that need to be undertaken, it will be difficult to hold the elections on the second week of August, 2012. Although holding elections in December 2012 is possible, the process is still faced with numerous challenges owing to the strict constitutional and statutory time lines,” the Cabinet paper states.
The Commission for the Implementation of the Constitution protested, and has filed a case at the Supreme Court to rule over the matter.

So have the civil society. But the question is: How will Parliament go about it? What are the implications of the amendments?

The Bill, which Mr Kilonzo tabled for the First Reading in the House on Wednesday, has to follow the procedure of amending the Constitution by a parliamentary initiative.

Under this initiative, the Bill will take 90 days before it is brought to the House for the Second Reading — debate and voting — as stipulated under Article 256 (1) (c):

“A Bill to amend this Constitution shall not be called for Second Reading in neither House within ninety days after the first reading of the Bill in that House.”

The provision assumes that the Senate has already been set-up. Nonetheless, it therefore means that the earliest the public expects the Bill to be debated is mid-February next year.

Even then, it will require a vote of no less than two-thirds majority of MPs to sail through.

While awaiting the 90-day period to lapse, the Constitution under Article 256 (2) requires Parliament to publicise the amendment and hold meetings with other players to discuss its merits and demerits.

It states: “Parliament shall publicise any Bill to amend this Constitution, and facilitate public discussion about the Bill.”

Even though it appears to be running late, the Justice ministry has lined up retreats of MPs and meetings with various actors to publicise the Bill.

According to the Cabinet paper, a retreat of MPs should have been held in Mombasa last week while a meeting with the Constitution Implementation Oversight Committee was to be held by Tuesday this week.

From yesterday to the end of next week, Mr Kilonzo’s ministry officials were to meet the Law Society of Kenya, International Federation of Lawyers (Kenya Chapter) Fida, Central Organisation of Trade Unions (Cotu), development partners, Kenya National Commission on Human Rights, Federation of Kenya Employers (FKE), the clergy, Maendeleo ya Wanawake, the Media Council, Kenya Private Sector Alliance (Kepsa), and International Commission of Jurists (ICJ), among others.

Between now and the end of January next year, the ministry and that of Gender are to hold consultations with the public to get their views, the Cabinet paper proposes. The final meeting will be between the two ministries and the implementation commissioners led by Mr Charles Nyachae.

It is only after these publicity and consultative meetings that the Bill can go to the floor of the House for debate by MPs. It can only sail through this state with a two-thirds majority vote, in other words 145 MPs.

The amendment could also mean that it would not be possible at any one time to fix the membership of the National Assembly. This is because it targets membership of the National Assembly, which the Constitution fixes at 349.

It targets Article 97(1)(c) which deals with the number of Nominated MPs to use it to achieve the one-third gender rule.

“Article 97 of the Constitution is amended (a) in clause (1), by inserting the following new paragraph immediately after paragraph (b): (b)(a) the number of special seat members necessary to ensure that no more than two-thirds of the membership of the National Assembly are of the same gender,” the Bill states.

This means that should the next election yield only 15 women MPs, the number of Nominations required to fulfil the gender rule will be 100, increasing the membership of the National Assembly to 449.

The additional MPs will be nominated by political parties according to their strength in the House. The same applies to the Senate where Article 98(d) is to be amended to increase the number of special seats to meet the requirements of the gender rule.

This will significantly raise the membership of the Senate by the stipulated 63 members. The Bill states: “Article 98 of the Constitution is amended in clause (1), by inserting the following new paragraph immediately after paragraph (d): (d)(a) the number of special seat members necessary to ensure that no more than two-thirds of the membership of the Senate are of the same gender.”

This means that in addition to changing the elections date and satisfying the demands of the gender rule, the amendment comes along with cost implications to the tax payer by increasing the number of MPs.