Briefly: The Evolution of the Current Document

by Samuel Marete

An analysis of the changes the document has gone through since the Committee of Experts (COE) first drafted it is useful, if only to show the wisdom of a system of checks and balances between the COE and Parliament, through the Parliamentary Select Commission (PSC). A broader history, encompassing the document’s evolution since the Bomas Draft would no doubt be instructive. However, in the interests of time I have limited the scope of this treatise to changes occurring since the COE’s initial draft.

Contained within the COE’s initial draft were a number of provisions designed to promote equity, limit corruption, and address historical injustices. However, the PSC draft reversed a number of these provisions. Mercifully, many of the PSC’s suggestions were ignored when the COE released the final draft. Similarly, though not to the same extent, a number of the COE’s provisions would have ultimately proved injurious to Kenyans and the PSC suggested viable alternatives. I have discussed this theme under 5 headings:

1. Leadership and integrity

a) The Ethics and Anti-Corruption Commission

The COE’s initial draft contained a number of laudable provisions that try to reign in corruption. In Chapter Nine, entitled Leadership and Integrity, the COE initial draft entrenches in the Constitution an Ethics and Anti-Corruption Commission (Article 99), whose mandate was to, among other functions:

i.  investigate any matter that, in the Commission’s opinion, raised suspicion that conduct constituting corruption or economic crime, as provided for in an Act of Parliament, had occurred or was about to occur;

ii. receive and retain custody of annual declarations of assets and liabilities made by state officials and keep a register of these declarations open for public scrutiny;

iii. receive and investigate complaints about non-compliance with the provisions of Chapter Nine and, if appropriate, to refer a complaint to the relevant authorities for action; and

iv. put in place measures aimed at the prevention of corruption.

The initial COE draft did not give this Commission the power to prosecute, and specifically prohibited the Commission from investigating any matter before a court or judicial tribunal.

When the members of parliament (MPs) met in Naivasha as the PSC, they expunged the Ethics and Anti-Corruption Commission provisions entirely from their draft. It is instructive to note that while the initial COE draft has 23 references to corruption, the PSC draft has a scant 3. What is more disturbing is that the COE seemed to back down on this front. The final COE draft (which has 7 references to corruption) states that Parliament “shall enact legislation to establish an independent ethics and anti-corruption commission” (Article 79). In placing the task of establishing an Ethics and Anti-Corruption Commission in the hands of MPs who have already shown a powerful aversion to such a Commission, the COE has sold Kenyans short.

b) Finances of State Officers

A State Officer is someone occupying state office, including the President, Deputy President, members of the Cabinet, the Secretary to the Cabinet, members of Parliament, members of the Judiciary, members of any Constitutional Commissions and independent offices (such as the Auditor-General), members of county government executive committees and legislatures, the Attorney-General, and the heads of the different security bodies.

The initial COE draft contained a provision (Article 97) making it mandatory for each state officer to declare their assets and liabilities

i. Immediately upon becoming a State Officer

ii. At least once a year, while holding office

iii. On ceasing to hold office

This declaration was further to include a declaration of any assets held jointly or in common with a spouse or any other person and any liability held jointly with a spouse or any other person.

Article 97 further went on to state that a State Officer was not to:

i. maintain a bank account outside Kenya except in accordance with an Act of Parliament.

ii. seek or accept a personal loan or benefit in circumstances that compromise his/her integrity

Further, gifts or donations given to a State officer on a public or official occasion were to be considered gift or donations to the Republic and were to be delivered to the State unless exempted under an Act of Parliament.

In keeping with its character, the PSC expunged all the provisions of Article 97 from the PSC draft. Mercifully, the COE saw through this and re-introduced the Article as Article 76 in the final COE draft. However, the Article has been considerably weakened by the removal of the Ethics and Anti-Corruption Committee. As a result, the mandatory declaration of assets and liabilities by state officers is not part of the final draft Constitution. However, the prohibitions on maintaining bank accounts outside Kenya, personal loans, and gifts and donations were returned.

2. The Executive

a) President Kibaki running in 2012?

The initial COE draft included a clause that would have prohibited President Kibaki from running in 2012. Articles 167 (3) and 167 (4) stated:

(3) A person shall not hold office as State President for more than two terms.

(4) For the purposes of clause (3), a person who has continuously served as State President for at least two and half years shall be deemed to have served a full term.

The PSC expunged these provisions from the Draft. The COE did not include them in its final draft either. This could leave the door open for President Kibaki to run in 2012.

b) The Cabinet

The initial COE draft included provisions for a Prime Minister, a Deputy Prime Minister, 15-20 ministers and 15-20 Deputy Ministers (Article 184). The President and Deputy President were not to have been part of the Cabinet.

The PSC draft scrapped the post of Prime Minister (Article 136). It stated that the Cabinet would consist of the President, the Deputy President and (again in keeping with character) expanded the Cabinet to 15-22 ministers, and a possible 25 Deputy Ministers. However, the PSC included a laudable provision prohibiting an MP from holding a Cabinet post, which is in keeping with the principle of separation of powers between the Legislature and Executive.

The final COE draft proposes a cabinet consisting of the President, the Deputy President, the Attorney General and 14-22 “Cabinet Secretaries” (Article 152). Commendably, the COE shrank the size of the Cabinet by removing any provisions for the post of Assistant Minister in its final draft. Finally, the COE retained the PSC’s suggestion that a Cabinet Secretary cannot also be an MP.

3. Land

a) Land quotas

The initial COE draft places a significant emphasis on the management of land, recognizing it as “Kenya’s primary resource and basis of livelihood for the people”. The document requires Parliament to enact legislation to prescribe minimum and maximum land-holding acreage with respect to private land (Article 85). The PSC draft dispensed with this provision. However the final COE draft reinserted the provision under Article 68.

b) The National Land Commission

The initial COE draft also recognized land as a source of historical conflicts.  The draft hence created the National Land Commission, stating that it should have offices throughout Kenya, and mandating it to:

i. manage public land on behalf of the national and devolved governments;

ii. recommend to the national government a national land policy;

iii. advise the national government and devolved governments on a policy framework for the development of selected areas of Kenya, to ensure that the development of community and private land is in accordance with the development plan for those areas;

iv. investigate disputes of land ownership, occupation and access to public land in any area as provided for by legislation;

v. advise the national government on, and assist in the execution of, a comprehensive programme for the registration of title in land throughout Kenya;

vi. conduct research related to land and the use of natural resources and make recommendations to appropriate authorities;

vii. initiate investigations, on its own or on a complaint, into present or historical land injustices and recommend appropriate redress;

viii. facilitate the participation of communities in the formulation of land policy;

ix. encourage the application of traditionally accepted systems of dispute resolution in land conflicts;

x. assess tax on land and premiums on property in any area designated by law;

xi. monitor and have oversight responsibilities over land use planning throughout the country;

xii. consolidate and from time to time review all laws relating to land; and

xiii. initiate revision of all sectoral land use laws in accordance with the national land policy.

The PSC draft drastically limited the powers of the National Land Commission. Article 59 (2) of that document states:

The functions of the National Land Commission are to—

(a) manage public land on behalf of the national and county governments;

(b) perform such other function in relation to land as Parliament may by legislation prescribe.

Once again Kenyans were rescued by the Committee of Experts, in whose final draft the powers of the Land Commission are largely retained, including and especially the power to investigate present or historical land injustices (Article 67). However, the following functions were removed and the National Land Commission is no longer mandated to:

i. advise the national government and devolved governments on a policy framework for the development of selected areas of Kenya, to ensure that the development of community and private land is in accordance with the development plan for those areas;

ii. investigate disputes of land ownership, occupation and access to public land in any area as provided for by legislation;

iii. facilitate the participation of communities in the formulation of land policy;

iv. consolidate and from time to time review all laws relating to land; and

v. initiate revision of all sectoral land use laws in accordance with the national land policy.

c) The housing development fund

The initial COE draft provided for a housing development fund (Article 86) to “enable the people of Kenya to gain access to more and better housing”. This was expunged in the PSC draft. The final COE draft did not reinstate it.

4. National elections.

a) Delimitation of electoral units

The initial COE draft establishes an Independent Electoral and Boundaries Commission, which has quite far-ranging powers with respect to management of the voters register, setting of electoral boundaries, etc. A detailed discussion of this is not the subject of this article. However, the Article 113 (3) (a)  states that the IEBC should “seek to achieve an approximate equality of constituency population, subject to the need to ensure adequate representation for urban and sparsely populated areas”.

The PSC draft develops this thought much further, instituting a population quota and requiring that constituency populations be, as far as is possible, equal to the population quota (within certain limits). We shall examine this further, but suffice it to say, for now, that the principle of one-man-one-vote is firmly in the draft Constitution, as the COE final draft retained these provisions (Article 89).

5. Taxation

a) Taxation of MPs

The initial COE draft stated that “no law may exclude or authorise the exclusion of a State officer from payment of tax by reason of either the office held by that State officer, or the nature of the work of the State officer” (Article 245). This means that under the new Constitution, MPs will have to pay tax. Commendably, the PSC retained this clause (Article 192), and it appears in the final COE draft (Article 210).

b) Taxation by County Governments

The initial COE draft gave the County Governments sweeping powers to tax citizens. In the Fifth Schedule, the document states:

A county government may raise, by way of taxes, duties, surcharges, fees, levies and

charges—

i. flat rate surcharges on the tax bases of any tax, levy or duty that is imposed by national legislation other than the tax bases of corporate income tax, value added tax and customs and excise;

ii. land use fees;

iii. agricultural tax;

iv. charges for the use of properties owned by the county government;

v. rates on property and surcharges for services provided by or on behalf of the county;

vi. licensing fees, including liquor licensing fees, market fees, hawking fees;

vii. business permit fees;

viii. entertainment tax;

ix. county roads maintenance charges;

x. county hotels and restaurants tax;

xi. natural resource royalties tax;

xii. gate fees for game parks and reserves;

xiii. transport tax;

xiv. parking fees;

xv. such other taxes, duties, surcharges, fees, levies and charges as the county is authorized from time to time by national legislation to impose; and

xvi. any other taxes, duties, surcharges, fees, levies and charges that are not exclusively assigned to the national government.

This would have been, in a word, disaster. The first sub-clause in particular would have made it entirely possible for citizens to pay tax twice (to the National Government and to the County Government) on the same personal income.

The PSC draft, however, severely limited the County Governments’ power to tax. Article 191 states that only the national government may impose income tax, value-added tax, customs duties and other duties on import and export goods, and excise tax. The Article goes on to state that a county may impose property rates and taxes, entertainment taxes, and any other tax that it is authorised to impose by an Act of Parliament. It also allowed both National and County Governments to impose charges for services. In short, the PSC draft gives the National Assembly control over Government revenue, and then “devolves” by promising to give at least 15% of Government Revenue annually to the County Governments (Article 188).

The final COE draft retains the provisions in Article 191 of the PSC draft and Article 188 (Articles 209 and 203). I remain quite sure that MPs were not driven by any altruistic principles in limiting the County Governments’ power to impose taxes. One abiding theme in the PSC draft is the concentration of power in the National Assembly (specifically, and not the Senate/counties). MPs were merely doing their best to retain control over Government revenue. However, a fortuitous (and sadly, rather rare) alignment of the interests of MPs and citizens has probably rescued Kenyans from an even more punitive taxation regime than the current one.

The changes discussed under these 5 broad areas are by no means an exhaustive list of the alterations/amendments that the current draft has undergone. However, the foregoing discussion serves to show that we as a nation are fortunate that a system of checks and balances between the COE and Parliament was in place during the drafting of the Constitution. To have left this task entirely in the hands of one or the other body (and MPs especially) would have been counter-productive to the stated aim of achieving reform. We shall now proceed to examine the final COE draft in more detail.

Next: The Bill of Rights