Myths Vs Facts of proposed Constitution


Q. Is it true that the Proposed Constitution is filled with foreign ideas and is written by foreigners?
Not at all. The Committee of experts is composed of eight indigenous Kenyans and three other African experts who were all vetted by the Parliamentary Select Committee, approved by Parliament before they were appointed by the President. The experts’ mandate was to look at the previous drafts by the Ghai Commission, the Bomas Draft, the 2005 Referendum draft, the findings of the Kriegler and Waki Commissions, existing international obligations of Kenya, and the expectations of Agenda 4 signed as part of the National Accord. The CoE also collected views from Kenyans all over the country which informed the final document. As such, the entire process was Kenyan driven and the document has national ownership.

Q. Why is it that some sectors argue that the CoE did not put what they wanted in the proposed constitution?
A good constitution is a negotiated document that ensures that there is a power sharing agreement between those who rule and those who are ruled. More importantly it is a document that ensures that rights, obligations, duties, and opportunities are shared between all Kenyans. Sometimes those who have been historically powerful, advantaged and privileged find it difficult to give and share with those who have not been so favored under the current constitutional arrangements. The CoE was fully aware of this challenge but it worked to ensure it produced a document where the rich share with the poor, the landed with the landless, and the majority with the minority. The document ensures opportunities for both the young and old, the able bodied and persons with disabilities, men and women, Christians, Hindus and Muslims, believers and non-believers alike. The proposed constitution also ensures that whereas nobody got everything they may have wanted in the document; everyone got something. If certain sectors got everything, others would have gotten nothing.  The CoE did try to accommodate every sector as much as possible; for example in their Memorandum to CoE dated 19th May 2009, NCCK raised 27 issues they wished included in a new constitution; 25 of them are contained in the Proposed Constitution.

Q. Is it true that homosexuality and same sex marriages are provided for under the draft?
No! Section 27(3) which contains the non-discrimination clause in the Bill of Rights does not include the words “sexual orientation.” The draft therefore does not provide for gay rights; laws that outlaw gay unions such as the Penal Code will still stand. The word “sex” that appears in the non discrimination clause refers to male or female, and is similarly captured in the current constitution. Article 45 on Family specifically states that marriages are only recognised if parties are from the opposite sex. This particular provision is not provided for under the current constitution; if challenged such unions may therefore be possible under the current constitutional framework but not under the Proposed one.

Q.  Under Art. 43 what does reproductive health mean? Some Churches state that it means abortion.

Kenya has a national reproductive policy which is currently implemented by the Government through the Ministry of Public Health which has a Department on Reproductive Health (DRH). The Ministry of Health’s vote during the Budget always contains a special proviso for the DRH as it the area of health that affects the most vulnerable women and children. Our national policy states that reproductive health issues involve maternity services, maternal health care, child birth, HIV, STI’s, fertility, infertility, impotence, prostrate and cervical cancers, female genital mutilation, sexual violence, forced wife inheritance, nutritional harmful traditional practices, and effects of early marriage. Contrary to what some leaders in the religious and political sector are stating, other definitions from other countries, such as abortion, are not included in our national policy and do NOT apply to Kenya.

Q. Some argue that the counties are unfair as the constituencies in them vary – some have more constituencies than others which it is said will lead to unfair distribution of resources? What is the real position?
Revenue raised nationally shall be shared equitably among the national and county governments. This will also be influenced by the developmental needs, economic disparities and the need to remedy them. (Art 203). The 47 counties may have their boundaries adjusted to take into consideration demography, infrastructure and the view of the communities affected. (Art 188)  Further, the constituencies of today are NOT the ones we shall have under the Proposed Constitution. The new representation formula in Art 89 shall apply and this will ensure number and size of constituencies and wards within the counties are more equitable in terms of representation and distribution.

Q. There are so many interpretations being bandied about during this debate – who has the final say on how to interpret sections of the Constitution?
Legal interpretation of constitutions the world over affirms that the text and structure of the Constitution should be interpreted by looking at the intentions of those who drafted the document.  This is one of the key reasons that all CoE Hansard (verbatim) records and documents with regard to the review are kept as matters of public record. Ultimately where a question of judicial interpretation arises on the Proposed Constitution, the first place to check will be these records to ascertain what the CoE meant by any one clause, including any of the so called contentious clauses.  This is one of the reasons the public has been encouraged to be attentive to civic education by the CoE, as it is the originators or framers of the draft who are in the best position to explain the meaning and intention of each section they wrote.

Q. Is it true that the Proposed Constitution is will tax ordinary mwananchi more than they are today?
Not at all. Art 201 provides that the burden of taxation must be shared fairly. The rich and poor will share this burden equitably, with the former paying its rightful share. Further Art 210 provides that no tax can be paid that is not provided for by an Act of Parliament, so that elected representatives can cushion mwananchi from extremities. The same clause provides that no state officer can be exempt from the payment of tax. In fact the Draft proposes governance structures than ensure less wastage and opportunities for corrupt practices, while ensuring that all Kenyans receive services commensurate to the tax they will pay.

Here are some more benefits that Kenyans do not have under the current constitution.
* Passport, like a National ID, is a right and not a favor given by Government as has been in the past (Art 12)
* Protection to intellectual property rights (Arts 11 & 40(5)
* Special rights for the elderly and older person (Art 57)
* Enhanced protection of the rights of accused persons AND also of the victims of crimes (Art 50)
* Never again shall detention without trial be possible (Art 49,50, 51)
*All religious and traditional marriages and family law will be provided for under written laws. (Art 45)
* No person can be denied emergency medical treatment (Art 43(2)
* Parliament may not hold closed sessions when confirming appointments to any public position – it must be open to the public.
* Parliament must pass all laws necessary to make the new constitution workable or MP’s will be sent home (Art 261 (7)
* The National Coalition Government and the National Accord stay in place until the next general election.
* We have a predictable general election day which is the 2nd Tuesday of August, no more interference with December holidays. The next election under the proposed constitution will be held on the 13th August 2010.

(Njoki Ndungu is a member of the Committee of Experts on Constitutional Review)

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