18 Dec


It is good news to hear that the High Court on Thursday nullified the election of Trade assistant minister Omingo Magara. Hoping that this will be a warning to the others who are in parliament by “mistake”

The other issue is on the DRAFT CONSTITUTION- with over a million different views on the harmonized constitution the committee has only three weeks to combine them all. Did you get a chance to have a look at the document and do you think three weeks is enough time for the committee to work on it?

The experience of Kenya demonstrates how corruption can tip a seemingly stable country into political crisis. Kenyan analysts widely agree that the violence following the December 2007 elections, in which President Mwai Kibaki claimed victory over opposition candidate Raila Odinga, was in large part caused by the zero-sum nature of Kenyan politics: Unless one’s ethnic group was in office, there were no possibilities for economic or political advancement.

As South African analyst Moeletsi Mbeki told journalist Michaela Wrong in her book It’s Our Turn to Eat: “What greater corruption could there be than stealing an election?” After years of “eating” the spoils of public office, Kibaki’s inner circle of ethnic Kikuyus was unwilling to relinquish power; after years of watching this graft, Odinga’s supporters, many of whom were ethnically Luo, felt it was their turn to eat. Statistics show that political patronage in Kenya’s public spending has exacerbated economic and regional inequalities. Nyanza Province, for instance, which is majority Luo, is the poorest province in Kenya.

In fact, Kenya has a range of legislation on the books that should prevent corruption. A Prevention of Corruption Act has existed in Kenya since 1956, and procurement laws have been revised to increase transparency. Since 2002, an anti-corruption commission has been charged with the prevention and investigation (though not the prosecution) of corruption cases. Most of these efforts, however, have fallen prey to the overwhelming power of the executive branch. Forty-five constitutional amendments have strengthened the executive’s power since independence in 1963; the judiciary is effectively controlled by the president. Kenya’s newspapers regularly investigate and break corruption stories, but the exposure of graft rarely results in legal proceedings

The anti-corruption commission’s work has also languished. In 2004, its former head, John Githongo, uncovered evidence that a nonexistent company called Anglo Leasing was awarded several huge government contracts. The scandal reached the highest levels of the Kenyan cabinet and cost the country as much as $1 billion. The attorney-general must approve any prosecutions, however, and he declined to prosecute the case. The United Kingdom wanted to investigate Anglo Leasing itself, but the attorney-general prevented its fraud office from moving forward. Kenyan lawyers and civil society members who advocate for good governance agree that judicial reform is imperative. Some argue that the public must step up as well.

All i can say is that Citizens must put their feet down and demand things from the government.



Posted by on December 18, 2009 in Uncategorized



  1. Job

    December 18, 2009 at 3:05 pm


    We thank the Committee of Experts (CoE) for a commendable effort to offer a Harmonized Draft Constitution (HDC). We note that the draft has captured the aspirations of the people of Kenya and are grateful to see that many of the issues of importance to ordinary citizens have been incorporated in the Harmonized Draft Constitution.

    After wide consultations in a series of meetings held daily in different parts of the country over the past 30 days, it is our considered opinion that the Harmonized Draft Constitution represents a genuine effort at harmonizing existing drafts and that with improvements it is a foundation that will assist us realize a constitution for posterity. The Harmonized Draft Constitution, we believe, is an effort towards finding a good constitution, not for the future general elections, but for the future generations.

    Some provisions contained in the Harmonized Draft Constitution are of extreme value to the people and in our submissions we will identify them and request that they be safeguarded and preserved in future drafts. There are some provisions which we feel need improvement or harmonization and in our submissions we will be offering our recommendations for consideration.


    Chapter Two: The Republic
    Article 5: The size, scope and breadth of Kenya should be clearly defined in the constitution and pegged on our national laws so as to leave no doubt whatsoever and to remove the dependency on international law. The boundaries of Kenya should be known and defined. The provisions of the constitution are sovereign law in Kenya and must not be subject to, nor make reference other laws, international or otherwise.

  2. rose

    December 18, 2009 at 3:08 pm

    Article 7: It is my opinion that Nairobi may remain the de facto capital of Kenya but it is not necessary to provide for that fact in the constitution. The First Schedule, provides for Nairobi Metropolitan Region which is sufficient to provide equity in and sharing of the collective resources of the people of Kenya that are invested in Nairobi. In the future, there may be need to locate our capital city elsewhere. Having to change the constitution in order to do that places an unnecessary burden on the people.

    Chapter Three: National Values Principles and Goals
    Article 13: Clause 13(2)(k) which addresses the percentage of representation of persons with disabilities should be amended to remove the provision for 5% representation and instead peg the allocation of opportunities on the percentage of persons with disabilities in the population as determined through the population census.

    Chapter Four: Citizenship
    Article 19: In view of the fact that Kenya has over the years been a host to refugees from virtually all her neighboring countries, there is further need to restrict naturalization in order to preclude refugees and other categories of foreigners including those with criminal records, otherwise an anticipated influx of applications from refugees would lead to insecurity, instability, a strain on resources and tensions in the country. Refugees resident in Kenya should continue to acquire citizenship not just in Kenya but in other countries as provided for by UNHCR procedures.

    Article 21: Dual citizenship privileges should apply only to citizens who are Kenyans by birth and descent. Foreigners wishing to become Kenyans should be required to relinquish their original citizenship and swear allegiance to Kenya.

    N.B. Failure to change this provision will adversely affect Article 82 (Land Holding by non-citizens) and will likely render the provision redundant. With Kenyan citizenship being so readily available, no foreigner who is a land-holder will fail to apply for citizenship, making absolute nonsense of the spirit of Article 82 which is intended to protect Kenyan land resources from the exploitation by foreigners.

    Chapter Five: Culture
    Article 27 Clause 27(i) should be amended to include not just indigenous seeds and plant varieties, but also include preservation and protection of indigenous knowledge and technology, animal species including wild life endemic to Kenya and indigenous livestock breeds such as Zebu and Boran cattle and their products. This right should also restrict recognition of foreign-held patents on indigenous products, species and breeds.

  3. eliud

    December 18, 2009 at 3:14 pm

    Chapter Six: The Bill of Rights
    We commend the Committee of Experts for not only clearly outlining the economic, social and political rights of the people, but also for providing for their application, enforcement and implementation mechanisms in the Harmonized Draft Constitution. In tandem with Article 1 which provides for the sovereignty of the people, Clause 29 (3) clearly outlines the inalienable nature of these rights. We further appreciate Articles 33 and 34 that address the shortcomings in the current constitution and ensure that the rights of the people are not unduly limited. We submit that these items be safeguarded and preserved.

    Article 35: The majority of our members feel the draft should explicitly declare that life begins at conception.

    Article 40: The rights of the youth should be enumerated in a similar way as the rights of children as listed in Article 41. The clear listing of rights of the youth in the constitution will serve to remove the existing ambiguities. We recommend the adoption of the rights of youth as enumerated in the Bomas Draft.

    Article 51 While this article provides for freedom of the media, in view of the important role that media, especially State-owned media plays in shaping public opinion, provision should be provided to safe-guard the citizens against irresponsible media practices. We recommend that clause 54(5) be amended to include a provision that Parliament shall enact legislation that imposes preventive and punitive sanctions on the media- State-owned or otherwise- in order to preserve a responsible and professional media.

    Further, clause 51(4)(a) should be amended to include the words “subject to Article 121(a)” in order to rationalize it with the provision that enables Parliament to make laws for equitable allocation of airtime to political parties. Without that amendment there is a likely chance that the two provisions will be seen to be in conflict. At this stage, insofar as reference is made to “other specified categories of broadcasting media” there is need to indicate how charges emanating from this provision will be paid. We recommend that any costs emanating from this provision be charged on the Political Parties Fund and Article 119 be amended accordingly.

  4. eliud

    December 18, 2009 at 3:30 pm

    Article 57 Clause 57(2) should be amended to remove the words “in compliance with international law” so that the constitution of Kenya is not subject to any other law and instead whatever anticipated right conferred by the international law is clearly given. Further, the Sixth Schedule should be amended so that the schedule for implementation is extended to Three Years in order to provide for adequate time for consultation and liaison with international bodies such as the United Nations High Commission on Refugees which are presently responsible for resettlement of refugees. Noting that the Sixth Schedule provides for establishment of citizenship laws (Articles 19, 21(3), 23(2) and 25) within a two-year time frame, it is irrational and impractical to provide for asylum to refugees faster than citizenship.

    Article 63 Access to free and compulsory education should be extended to include secondary education. In addition, Clause 63(3) presupposes adequate access and availability with respect to post-secondary education while the reality is that in many areas they are neither available nor readily available. Institutions of higher learning should also be expressly provided for in the constitution. The constitution should not define education to be limited only to basic primary and secondary education; it should include tertiary colleges, universities and research institutions.

    Article 72 Clause 72(1)(f) should be amended to provide for accused persons to be brought before court within 24 hours. Further, the words “outside ordinary court hours or on a day that is not an ordinary court day” should be deleted to provide for the possibility of a judiciary that functions 24 hours, 365 days a year. This deletion not only be compliant with Article 34 that expressly dictates that the right to fair trial must not be subject to any limitation, but it will also serve to safeguard and preserve the right to speedy trial provided for in Clause 73(e) and address the injustice created by delay in determination of cases.

    Article 73 In tandem with Article 34 which stipulates that the right to fair trial shall not be subject to any limitation, Clause 73(4) should be amended to absolutely prohibit the use of evidence obtained in a manner that violates the Bill of Rights.

  5. mzeiya

    December 18, 2009 at 3:43 pm

    Chapter Seven: Land
    Land reform, or lack thereof, has occasioned great distress among the people of Kenya. That the Constitution recognizes that there have been historical injustices and seeks to resolve them is commendable. We pray for the preservation especially of clauses 84 (g) and (i).

    Article 79 Clause 79(f) which defines all minerals and mineral oils as public property should be amended and made subject to Article 59. The clause has an adverse effect on the rights conferred to communities and individuals through Articles 80 and 81 and suggests that community and private property ownership is protected only when the land contains no mineral wealth. When and if a need exists to nationalize minerals and minerals oils, Clause 91(f) sufficiently serves to address national equity matters without necessarily dispossessing the community and private individuals.

    Article 82 Clause 82(2) should be amended to reduce the lease period from 99 to a period not exceeding 40 years and be expressly subject to Clause 83(3).

    Article 83 Clause 83(3) anticipates legislation whose time frame is not provided for. Time frame for implementation should be provided for in the Sixth Schedule and given a two-year time frame.

    Article 85 Clause 85(2) should be amended to remove the responsibility of Parliament in determining the date of review required by clause 85 (1)(h). Instead implementation of Clauses 85(1)(h) should also be subject to the time frame established in the Sixth schedule for Article 85.

  6. nancy

    December 18, 2009 at 3:47 pm

    Article 92 Clause 92(1) should be amended to include the words “subject to Article 59” to ensure that the State is not provided with an absolute right to derogate rights of communities and individuals over their land and resources.
    In addition, he Sixth Schedule provides for a time frame for enactment of legislation provided for by a non-existent Clause 91(2) Amendment should be made in to reflect the correct clause 92(2)

    Further, Clause 92(1) should be subject to Clause 59(2).

    Leadership and Integrity
    Article 99 Clause 99(3)(4) should be amended so as not to expressly bar the Anti-Corruption Commission from investigating any case. Instead, the power to investigate any case should be granted subject to Articles 73.

    Chapter 10: Representation
    The Committee of Experts has made great effort towards establishing a more fair and representative regime for the representation of the people. Issues affecting the people are well captured and we pray for the preservation of Articles 104, 107, 112 (i), (j), and (k). Besides, we note and appreciate the recognition that in order to facilitate a more inclusive representation there is need to provide for affirmative action for the benefit of disenfranchised constituencies. We support the provisions of Clauses 13(2)(j).

    We, however, suggest that the word “women” whenever used in reference to representation, be replaced by the words “subject to Clause 13(2)(j), the gender less represented”. Considering that the Harmonized Draft Constitution is meant to serve posterity, it should anticipate and mitigate situations in the future in which women outnumber men in elected legislative bodies in which case men would need affirmative action to satisfy the requirements of Clause 13(2)(j). We propose, therefore, amendments to clauses 125(1)(b), 126(1)(b), 126(4) and 128(a).

    We propose that all elections to legislative assemblies be through direct universal adult suffrage vote. There should be no provision for electoral colleges to provide the people with the opportunity to be directly involved in identifying and selecting their leaders and also to give effect to the recommended amendment to the Article 131 that enables a recall of representatives at all levels.

    We note that the people of Kenya have suffered greatly as a result of the disadvantages of an election system based on a First Past the Post winner-take-all process. It has resulted in underrepresentation and marginalization of some constituencies while creating disaffection amongst citizens especially where numerous candidates create a winning candidate who really represents a minority. We therefore propose the adoption of a Mixed Member Proportional Representation with Open Political Party lists subject to Clause 13(2)(j)and (k) at all levels. This will facilitate the development of political parties and create an environment in which healthy competition among political parties will likely yield stronger, fewer and more representative political parties that are necessary in a healthy democracy.

    Article 102: This should be amended to include the enhancement of national cohesion and unity as a principle.

    Article 110: Clause 110(2)(a) should be amended to provide for a 14 day time frame for the filing of the petitions in case of presidential elections. Seven days may be too short for a petition to be filed.

  7. sinkel

    December 18, 2009 at 4:20 pm

    It is not yet over for Magara.i would urge him to seek re Election and then team up with the likes of Balala and Rutoto to bring meaningful change in kenya magara you are a youthful leader that we neeed in Kenya.Forget Raila forget Uhuru we want power to the sons and daughters of peasants like you

  8. KABZ

    December 18, 2009 at 4:25 pm

    Justice Daniel Musinga is the same guy who declared the stupidly created new districts illegal. He has followed the law that has seen two assistant Ministers kicked out of parliament. This is the kind of judge Kenyans need. Someone should take Kibaki’s rigging case before him! I am proud to have have been a dorm-mate with this guy at Maseno National School. Way to go judge!

  9. IVY

    December 18, 2009 at 4:41 pm

    ODM shouted from rooftop how Kibaki and PNU stole elections. The Kriegler commission told us the whole election was a sham and it was difficult to establish who won presidency. I agree. Kibaki and Raila filed suspect results in their strongholds. Scenario was same with some MPs eg Bishop Margaret Wanjiru (whose constituency am a voter). Raila and ODM’s holier than thou attitude being proved wrong by history. Why did 1, 500 Kenyans have to die, Raila? He knew ODM was not clean and called mass action that ended in mass murder. Mass action general owes Kenya an apology.


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