Opinion is divided on whether Attorney-General Amos Wako can correct the apparent errors and missing clauses in the new Constitution.
A section of lawyers interviewed by the Saturday Nation feel that the AG can simply do the corrections, while others argue that it might require a constitutional amendment for the corrections to be done.
Justice minister Mutula Kilonzo said that a parliamentary committee proposed in the Constitution, to be called the Constitutional Implementation Oversight Committee, shall work with another one called the Commission on Implementation of the Constitution to correct these anomalies.
The Parliamentary Select Committee chairman, Mr Mohammed Abdikadir, told the Saturday Nation that they would first focus on the transition, then turn to resolve this issue of typographical errors later.
The PSC chairman congratulated Kenyans for approving the document based on the substance which, he said, was not affected by the typographical errors.
Lawyer Stephen Mwenesi said the errors were regrettable and it appeared as though the Senior Parliamentary Counsel at the AG’s office, Ms Margaret Nzioka, did not fully have her input into the document.
"She is one of the most qualified drafters we have around and I doubt if this document passed through her hands,” Mr Mwenesi said.
Information minister Samuel Poghisio said the issue of missing clauses should be corrected in such a way that it does not alter the letter and spirit of the new Constitution.
“We should first agree somebody messed up the whole thing, and that being the case, we should not lose sight that the spirit and letter must be respected,” Mr Poghisio said.
According to Mr Nzamba Kitonga, the chairman of the Committee of Experts (CoE) on the new Constitution, Parliament will rectify the missing clauses using Miscellaneous Amendment Bills.
Mr Kitonga said that the AG has powers given to him by the Revision of Laws Act to correct the grammatical errors and mis-clausing in the new Constitution.
However, Ms Njoki Ndung’u, a member of the CoE, said the missing clauses could need a simple majority in Parliament to rectify and should not be made a big issue.
Ms Ndung’u said the missing clauses, though unwarranted, do not change the substance of the new Constitution. She said they were mere typing errors, which were unintentional.
“Our committee prepared everything through typing, including numbering manually, because we did not have software to do it. We have noted the mistakes but found out that they do not affect the content,” the former nominated MP said.
The Law Society of Kenya chairman, Mr Kenneth Akide, thanked Kenyans for finally making their decision, citing the many times the country has had false starts yielding to many drafts.
“The important thing is that Kenyans have demonstrated now that they are making progress,” he said in an interview.
Mr Akide noted that the substantive document has no problem despite the errors, saying they can be corrected by the AG.
His argument is that constitutional amendments have and will always be there.
Mr Akide is convinced that if the debate on the contentious issues was to be open before passing the document, there could have been no agreement.
“If any discussion was to be entertained, more contentious issues would have emerged. The public could have been surprised by the mischief that would have crept in. It would have been like opening a Pandora Box,” he said.
Constitutional lawyer Pheroze Nowrojee said any correction that would be done will depend on the type of error.
“If it is proofreading and such kind of errors like spelling mistakes, the AG can correct. It should not be something like insertion of words like ‘national security’,” Mr Nowrojee said.
The Federation of Women Lawyers Kenya chief executive Grace Maingi-Kimani said the identified errors did not affect the substantive nature of the document.
“Any errors as may be detected can be corrected later by the Attorney-General. If anything that is what his office was supposed to do before publishing the document,” Mrs Kimani said.