The Bill of Rights

by Samuel Marete

Although this discussion is entitled the Bill of Rights, of a necessity mention about how the Constitution can be amended must be made.

Manner of amendment of the Constitution

The Constitution can be amended in two ways.

1. The Constitution may be amended by Parliamentary initiative. In this method, the proposed amendment may be introduced in either the National Assembly or the Senate, but must be passed by a majority of not less than two-thirds in both houses (Article 256).
2. The Constitution may also be amended by Popular initiative. In this method, one million registered voters must sign assent to the initiative. The promoters of the amendment should formulate the amendment into a draft Bill and submit the Bill and the signatures to the Independent Electoral and Boundaries Commission (IEBC). The IEBC should then verify the 1 million signatures. If all is in order, the Bill must be approved by a majority of the county assemblies, before being introduced in Parliament. The Bill stands enacted if approved by a simple majority of members in both houses (Article 257).

Certain crucial portions of the document such as the Bill of Rights; the term of office of the President; the independence of the Judiciary, independent offices and independent Commissions; the functions of Parliament; and the objects, principles and structure of devolved Government must additionally be subjected to a referendum. In this referendum 20% of the registered voters in at least half of the counties must vote on the amendment, and the amendment would be passed by a simple majority of those voting in the referendum (Article 255).

The Bill of Rights

The Bill of Rights contains a list of rights listed under 26 different articles, (Articles 26-51). It has been called one of the most progressive Bills of Rights globally. Below is a discourse on four rights that whose inclusion and wording have shaped debate on the Constitution.

1. The right to life (Article 26)

This is one of the most hotly-debated Articles in the draft Constitution. For avoidance of contention, Article 26 states:

26. (1) Every person has the right to life.

(2) The life of a person begins at conception.

(3) A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.

(4) Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.

Subsection (3) seems to allow capital punishment to continue, as current laws allow it.

The debate about this Article 26 really centres on abortion. I venture that the Kenyan public largely would not stand for the outright legalisation of abortion. The differences in opinion concerning this article relate to whether the Article adequately prohibits abortion or not.

Let us assume the position that the draft Constitution adequately prohibits abortion.
Arguments for:

• The document states that life begins at conception, and then states that a person shall not be deprived of life intentionally.
• As stated by the PSC Chairman Mr Abdikadir Mohammed during his closing remarks on the Constitutional debate in parliament, the Constitution specifically states that “Abortion is not permitted.” However...

Arguments against:

• The caveats stated in Article 26 (4) are decidedly vague. To begin with, what exactly constitutes a “trained health professional”? Secondly, what constitutes “emergency treatment”? And thirdly, isn’t there a very large loophole being left open in the phrase “or if permitted by any other written law”? The last concern, particularly, makes me wonder whether it is worth having put the matter of abortion in the Constitution in the first place; judging from that phrase it would not require a constitutional amendment to introduce/allow abortion. A mere parliamentary Bill, which would by itself constitute “written law”, would suffice.

In my view, these are very valid concerns. The church has been asked to state what it believes should be done to improve the article. One thing would be to rigidly define what a “trained health professional” is. Perhaps to expunge the phrase “or if permitted by any other written law”. As a Christian, I find it quite understandable that people would want to vote against the adoption of the Constitution in its current form based on their conviction that Article 26 does not do enough to prohibit abortion. Such a person would be acting well within their democratic rights.
However, I also think for someone to reject the whole Constitution based on this single clause without having at least a basic understanding of the other 263 articles is to be less than unprejudiced. I hasten to add that it is equally wrong for one to vote for the adoption of the Constitution whilst possessing a merely cursory understanding of the document. I believe that the document ought to be judged on its merits and demerits as a whole. If some of those voting “No” on the basis of (what someone has told them about) Article 26 remain ignorant of the contents of the rest of the document, yet that knowledge would change their decision about the document, then they are wrong to vote “No”. It is certain that the decision (whether to vote “Yes” or “No”) is not an easy one to make, for those with deep religious convictions. I haven’t come to a decision myself. But I believe that when we finally do decide, we owe it to ourselves and to this country to decide as an informed electorate, and not merely on the basis of what we have been told whether by church or self-seeking politician.

2. Assembly, demonstration, picketing and petition (Article 37)

Article 37 states:

Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.

Early in the debate about the Constitution it was stated that to allow the armed forces the right to demonstrate would be disastrous. However, Article 37 clearly states that demonstrators must be peaceable and unarmed. Secondly, Article 24 (Limitation of rights and fundamental freedoms) states that “a provision in legislation may limit the rights or fundamental freedoms in the following provisions to persons serving in the Kenya Defence Forces or the National Police Service.” In other words, laws may be enacted to restrict the rights of members of Army or the Police to certain rights. One of those rights is the right to assembly, demonstration, picketing and the presentation of petitions.

3. Protection of right to property (Article 40)

The provisions in Article 40 are most interesting. Article 40 allows any citizen to own property anywhere in Kenya (foreigners may not own land with leases of longer than 99 years as per Article 65). It further says that Parliament cannot enact a law to arbitrarily deprive a person of property. The State cannot deprive a person of property of any description unless that property has been legally acquired, or the deprivation is for a public purpose or in the public interest. Where the latter is the case, the person so deprived of property must be promptly and justly compensated in full, and the person so deprived is allowed to contest the deprivation in a court of law.

These commendably stringent laws will be good for the management of property in Kenya. They also fly in the face of a certain incendiary email that has been doing the rounds claiming that the Government will be able to arbitrarily dispossess Christians of land, in order to allocate that land to Kadhi courts. The assertion is just one of many assertions in that email that are less than true and that are merely calculated to raise the hackles of Christians with regard to the inclusion of Kadhi courts in the Constitution. Although I will discuss this in more detail in a later article, let me say to my fellow-Christians that it is only as we remain ignorant that we remain susceptible to inflammatory emails of this sort.

Article 40 goes on to state that: “(4) Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land.”

In doing this, the Article appears to legislate for squatters who may have lived on land for a long time and yet do not have title to that land, allowing for the Government to pay them if they are to be deprived of the land on which they live.

However, there is a caveat in Article 40 (6):

“(6) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.”

I believe that caveat, together with the other provisions on land in Chapter 5, to be the real reason why there are politicians opposing the draft so vehemently. By the provisions of this Article, it will not be possible for politicians to be compensated for land allocated in the Mau Forest. This is greatly heartening.

4. Minorities and marginalised groups (Article 56)

Here I venture a cautionary question: is it possible to be too accommodating of minorities and marginalised groups? For the Constitution to reserve a certain number of seats in the Parliament for women, youth and disabled is commendable. However, this is a “secondary level” of support. I believe that emphasis must be placed on providing adequate support to minorities and marginalised groups at a “primary level”, particularly in the area of education. It would not help the marginalised themselves if they were misrepresented as a result of a lack of sufficiently qualified individuals from among their ranks. To some extent, the person representing a minority group best represents his/her minority if he/she is as capable of/qualified to represent the non-marginalised as he is of representing the marginalised, excepting their life’s experience as a member of a marginalised community. To put it another way, the quality of representation of marginalised and non-marginalised groups should not differ; only the quantity. There is a sense in which there is a bit of chicken-and-egg here; the very marginalisation of these groups means they do not have access to the education and other qualifications they need to represent themselves adequately; nevertheless, it is a point worth considering.

It must be noted that this is an implementation matter, and not a matter concerning the wording of the document itself.

Next: The Executive

Posted by Mzalendo Editor on April 27, 2010

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