logging in or signing up study of the proposed constitution jeipea Download Post to : URL : Related Presentations : Share Add to Flag Embed Email Send to Blogs and Networks Add to Channel Uploaded from authorPOINT lite Insert YouTube videos in PowerPont slides with aS Desktop Copy embed code: (To copy code, click on the text box) Embed: URL: Thumbnail: WordPress Embed Customize Embed The presentation is successfully added In Your Favorites. Views: 120 Category: Others/ Misc License: All Rights Reserved Like it (0) Dislike it (0) Added: July 29, 2010 This Presentation is Public Favorites: 0 Presentation Description This is my comparison of the Bomas Draft, The Harmonized draft of Nov 17 2009 and the Proposed Draft May 2010. I have compared the 3 from start to the Chapter on the Bill of rights. Comments Posting comment... Premium member Presentation Transcript Study of the Proposed Constitution of Kenya 6th May 2010 : Study of the Proposed Constitution of Kenya 6th May 2010 A comparison with the Bomas Draft of March 2004 and the Harmonized draft of 17th November 2009 By John Paul Mugambi 7/29/2010 johnpaulem@gmail.com 0735 - 586956 Points of note : Points of note It is important while reading the Proposed draft constitution to read Article 258, 259 and 260 under General provisions. These Articles help one not to misconstrue or misinterpret the constitution It is important while reading this “Comparison” to have copies of the “3 drafts” with you (note I do not use the Proposed/rejected draft of 2005 because to date no one has claimed “authorship” of that draft – it is a questionable draft). My comparison of the Proposed draft, the Bomas draft and the Harmonized draft of Nov 17 2009 is based on the following premises (Note in my comparison in this document I have left out the sections where no changes have been made – for brevity’s sake) 7/29/2010 johnpaulem@gmail.com 0735 - 586956 Points of note ….cont : Points of note ….cont To determine whether the Proposed draft is good or bad (therefore whether to vote Yes or No) it is important to compare this draft with the other drafts that Kenyan taxpayer money has been used in writing in the past. It is important to see whether the changes (deletion, omission, addition) that have been made to the earlier drafts to come up with the proposed are for better or for worse. It is important to read into possible outcomes of deletions or omissions. It is important to question whether the interest groups that have urged or brought about the changes in the draft have declared their vested interest or have they hidden behind the Committee of Experts If these groups have not declared their interest then it is important to question the accountability and transparency of the draft 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) SOVEREIGNTY OF THE PEOPLE AND SUPREMACY OF THIS CONSTITUTION Sovereignty of the people 1. (1) All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution. The proposed draft uses the word shall unlike the Bomas and Harmonized drafts which use the word may 1) All sovereign authority belongs to the people of Kenya and may be exercised only in accordance with this Constitution. (2) The people may exercise their sovereign power either directly or through their democratically elected representatives. The Bomas draft does not have section two. The harmonized draft of Nov 17th has the same section. It seems there is an emphasis on exercising power through democratically elected representatives. (3) Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution–– (a) Parliament and the legislative assemblies in the county governments; (b) the national executive and the executive structures in the in the county governments; and (c) the Judiciary and independent tribunals. The proposed draft says that sovereign power is delegated to??? The Bomas Draft and the Harmonized draft both state that Authority is delegated to as shown below. 2) Authority is delegated to the following State organs, which shall perform their functions in accordance with this Constitution – The following which was (d) in both Bomas and Harmonized drafts is deleted d) the constitutional commissions, independent offices and other State offices. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) While the Bomas and Harmonized drafts leave room for whatever kind of devolved structures (as below)that will be in place the proposed draft is specific to county governments as shown above 2) Authority is delegated to the following State organs, which shall perform their functions in accordance with this Constitution – a) Parliament and the legislative structures in the devolved governments; b) the national executive and the executive structures in the devolved governments; c) the Judiciary and other independent tribunals; and d) the constitutional commissions, independent offices and other State offices. (4) The sovereign power of the people is exercised at— (a) the national level; and (b) the county level This is an addition that was not in the Harmonized draft of November 2009 or the Bomas draft. Again it appears to emphasize levels of government National and County stating sovereign power is exercised at. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 Slide 6: Supremacy of this Constitution Under this Article the proposed draft completely omits the following which was in Bomas and the Harmonized 3) A person, or a group of persons, may bring an action in the High Court for a declaration that any law is inconsistent with, or is in contravention of, this Constitution. 4) If the High Court makes a declaration under clause (3), it may also make any order necessary to give effect to the declaration In Sec 2(5) The proposed draft appears to deviate from the main article supremacy of the constitution. It goes on to state about international law, treaties and conventions ratified by Kenya as being part of the law of Kenya under “this constitution” This part is not in the Bomas or Harmonized drafts it is a questionable addition (5) The general rules of international law shall form part of the law of Kenya. (6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 Slide 7: CHAPTER TWO THE REPUBLIC Declaration of the Republic The Proposed draft refers us to Article 10 for the National Values and Principles of Governance. (It is important to note this as later you realise that Article 10 is a mutilated version of what was Chapter 3 in both the Bomas and Harmonized drafts). Compare The Proposed Draft “The Republic of Kenya shall be a multi-party democratic State founded on the national values and principles of governance referred to in Article 10.” Both the Bomas draft and the harmonized draft on the other hand state. “The Republic is founded on principles of good governance through multiparty democracy, participatory governance, transparency and accountability, separation and devolution of powers, respect for human rights and fundamental freedoms and the rule of law.” 7/29/2010 johnpaulem@gmail.com 0735 - 586956 Slide 8: Territory of Kenya 5. Kenya consists of the territory and territorial waters comprising Kenya on the effective date, and any additional territory and territorial waters as defined by an Act of Parliament This clause leaves it up to parliament to decide where and how wide Kenya’s territory reaches … it might be in conflict with Article 2 (6) on International treaties at any one point in time. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Devolution and access to services 6. (1) The territory of Kenya is divided into the counties specified in the First Schedule. (2) The governments at the national and county levels are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation. (3) A national State organ shall ensure reasonable access to its services in all parts of the Republic, so far as it is appropriate to do so having regard to the nature of the service. Does not specify whether it is authority that is delegated from the central government, power to make legislation or whether it is financial or that of managing entities – leaves it to the vague “consultation and cooperation” The proposed draft refers to schedule 1 for a list of counties in which the territory of Kenya has been divided into. The harmonized draft has an article very similar to Article 1(4) of the proposed “Article 6(1) The sovereign power of the people is exercised at— (a) the national level; (b) the regional level; and (c) the county level.” The Bomas draft has more regions of devolution than the Harmonized draft as follows The sovereign authority of the people is exercised at – (a)the national level; (b)the regional level; (c)the district level; and (d)the locational level. The Bomas and the harmonized draft have similar clauses. All three drafts continue to explain further the new functions of the devolved governments under the schedules This part was in the harmonized draft but not under devolution – it is under access to services as follows Access to services 8. A national State organ shall ensure access to its services in all regions. Note the difference of the above while in the proposed draft - It uses the words reasonable access to its services, in as far as it is appropriate to do so having regard to the nature of the service 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) National, official and other languages 7. (1) The national language of the Republic is Kiswahili. (2) The official languages of the Republic are Kiswahili and English. (3) The State shall–– (a) promote and protect the diversity of language of the people of Kenya; and (b) promote the development and use of indigenous languages, Kenyan Sign language, Braille and other communication formats and technologies accessible to persons with disabilities. The proposed draft lumps together indigenous language with Kenya sign language and Braille as shown above. The harmonized draft and the Bomas draft are the same splitting it as follows (3)The State shall respect, promote and protect the diversity of language of the people of Kenya and shall promote the development and use of indigenous languages and sign language. (4) The State shall promote the development and use of Braille and other appropriate modes of communication for persons with visual and other impairments. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) State and religion 8. There shall be no State religion. The Proposed draft as shown above omits the Bomas Draft and the Harmonized draft’s Sections 1 And Section 3 that are shown below. 10. (1) State and religion shall be separate. (3) The State shall treat all religions equally. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) National values and principles of governance 10. (1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them— (a) applies or interprets this Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. (2) The national values and principles of governance include— (a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; (b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; (c) good governance, integrity, transparency and accountability; and (d) sustainable development. While the other drafts have National Values and Principles of Governance as a whole chapter i.e. Chapter 3 The Proposed draft has National Values and Principles of Governance as an Article as Article 10 in Chapter 2. Most of the National values &Principles of Governance are deleted Unlike the Bomas Draft the proposed draft also states that National values bind one during enactment of a law. The Bomas draft limited itself to application and interpretation. The draft in Article 10(1) has a non specific summary a bit similar to what was in the harmonized draft and Bomas draft in relation to Declaration of the republic 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) The proposed draft omits 14 Sections of National Values and Principles of Governance contained in both the Bomas and Harmonized drafts. It is important to note that these deleted sections are referred to in declaration of a republic in Chapter as follows “The Republic of Kenya shall be a multi-party democratic State founded on the national values and principles of governance referred to in Article 10 The Omitted Sections include: (2) The State shall – (a)promote national unity and develop the commitment of all citizens to the spirit of nationhood and patriotism; (b)recognise the diversity of the people and promote and protect the cultures of its communities; (c)promote the participation of the people in public affairs and facilitate the sharing and devolution of power; (d)ensure open and transparent government and accountability of State officers, public officers, State organs and public authorities; (e)take effective measures to eradicate all forms of corruption; (f) ensure access of the people to independent, impartial, competent, timely and affordable institutions of justice; (g)recognise the role of civil society in governance and facilitate its role in ensuring the accountability of government; (h)protect and promote human rights and fundamental freedoms and enhance the dignity of individuals and communities; (i) ensure full participation of women, persons with disabilities, marginalized communities and all other citizens in the political, social and economic life of the country; (j) implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender; (k)progressively implement the principle that at least five per cent of the members of elective and appointive bodies shall be persons with disabilities; (l) recognise the special responsibilities that the State, society and parents owe to children and uphold the family and the institution of marriage; (m) be committed to social justice and the realization of the rights of the people of Kenya to basic needs and a secure environment; (n)promote the development of, and recognise and enhance the role of, science and technology; (o)eliminate disparities in development between the various parts of the country and sectors of society; (p) manage national resources fairly and efficiently for the welfare of the people; (q) recognise its responsibilities to future generations of the people of Kenya, by pursuing policies for the sustainable management of the environment; and (r) be a good citizen of Africa and of the world and commit itself to work for international peace and solidarity. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Culture 11. (1) This Constitution recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. (2) The State shall— (a) promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage; (b) recognise the role of science and indigenous technologies in the development of the nation; and (c) promote the intellectual property rights of the people of Kenya. The chapter on Culture is Chapter 5 of the Harmonized draft – it is reduced to one Article in the Proposed draft. The proposed draft leaves out the following: Recognition of culture The draft leaves out the following which is in the Harmonized draft Responsibility of the State in respect of culture 27. The State shall— (a) promote understanding, tolerance and appreciation of diversity; (b) respect, preserve, protect and promote the heritage of Kenya, and in particular, its cultural, historical, religious, sacred, archaeological and other significant sites and artefacts; (c) promote— (i) research and an education policy that enhances culture and cultural values and enables the people to develop strong moral, ethical and spiritual foundations; (ii) all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications and libraries and other cultural heritage; and (iii) research into and documentation of the cultures of Kenya, including national history and customary law; 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Culture Cont… (d) recognize, support and promote the appropriate application of modern and traditional medical practices; (e) recognize the role of science and indigenous technologies in the development of the nation; (f) support, promote and protect indigenous knowledge and the intellectual property rights of the people of Kenya; (g) through legislation, ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage; (h) promote, where applicable, the use of traditional farming systems, and traditional foods and drinks; and (i) through legislation, recognize and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) The Bomas draft has a National Commission on Culture which is omitted in the two latter drafts National Commission on Culture 26. (1) There is established the National Commission on Culture consisting of the chairperson, two vice-chairpersons and seven other members. (2) The functions of the Commission are to – (a)advise on matters of policy and practice relating to culture; (b) carry out and promote research into and documentation of the cultures of Kenya, including national history and customary law; (c)protect cultural sites and historic monuments for the benefit of the communities for which those sites have significance, and for the nation; (d)endeavour to secure the return of historically and culturally significant relics, archeological finds, documents and other expatriated material culture for the enrichment of Kenyan museums; (e)enhance the sustainable use of the heritage and creativity of the nation for tourism and other economic uses; (f) promote and preserve Kiswahili, all languages of the people of Kenya and sign language and Braille; (g)establish criteria for recognition and honouring of national heroes and heroines; (h)encourage and develop the positive traditions of the nation in the support, protection and care of disadvantaged and vulnerable members of society; and (i) generally carry out the objectives of this Chapter. Cultural day 27. The 26th day of December is designated as Utamaduni Day. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) CHAPTER THREE CITIZENSHIP Entitlements of citizens 12. (1) Every citizen is entitled to— (a) the rights, privileges and benefits of citizenship, subject to the limits provided or permitted by this Constitution; and (b) a Kenyan passport and any document of registration or identification issued by the State to citizens. The proposed draft rightly deletes section 1(c) that was in both the harmonized and proposed draft because it seems to deviate from the main point of entitlements to talk about responsibilities Every Citizen is entitled to – a then b as above - then c as shown below (c) subject to the responsibilities of citizenship. (2) A passport or other document referred to in clause (1) (b) may be denied, suspended or confiscated only in accordance with an Act of Parliament that satisfies the criteria referred to in Article 24. The proposed draft adds this which was not in the Bomas draft. It provides for a withdrawal of an entitlement to citizens. It leaves it up to parliament to determine this legislature without violating the Article 24 on the Bill of Rights on limitations. It is important to note that Article 24 has also been subjected to some changes 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Citizenship by birth 14. (1) A person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen. The harmonized draft goes on to specify that this applies even where the father or mother acquired citizenship through other methods 2 …either the father or mother is a citizen (a) who was born in Kenya; or (b) by registration or naturalization. (2) Clause (1) applies equally to a person born before the effective date, whether or not the person was born in Kenya, if either the mother or father of the person is or was a citizen. (3) Parliament may enact legislation limiting the effect of clauses (1) and (2) on the descendents of Kenyan citizens who are born outside Kenya. This an addition that was not in the Bomas or the Harmonized draft. Its effect is to allow parliament an opportunity to limit access to children born to citizens outside Kenya (4) A child found in Kenya who is, or appears to be, less than eight years of age, and whose nationality and parents are not known, is presumed to be a citizen by birth. Under the Bomas Draft and Harmonized draft this is put under Children found in Kenya and adopted children unlike the proposed which puts it under citizenship by birth (neatness and orderliness in the proposed draft are wanting) The harmonized draft in sec 3 also provides for those whose citizen parent died before the child is born. This is omitted in the proposed draft 3) If either parent of a person died before that person was born, that parent’s citizenship at the time of death applies, for all purposes of this Chapter, as if that parent had survived until the birth of that person. What was the Harmonized draft section 18 (2) and Bomas drafts Section 17(2) on Citizenship and marriage is deleted in the Proposed draft Citizenship and marriage (2) Citizenship is not lost through marriage or the dissolution of marriage. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Citizenship by registration 15. (1) A person who has been married to a citizen for a period of at least seven years is entitled on application to be registered as a citizen. Under the Bomas Draft and Harmonized draft this is put under Citizenship and Marriage (neatness and orderliness in the proposed draft chapter are wanting compared to the other two drafts) (2) A person who has been lawfully resident in Kenya for a continuous period of at least seven years, and who satisfies the conditions prescribed by an Act of Parliament, may apply to be registered as a citizen. Under the Bomas Draft and Harmonized draft this is put under Citizenship by Naturalization (neatness and orderliness in the proposed draft chapter are wanting compared to the other two drafts) (3) A child who is not a citizen, but is adopted by a citizen, is entitled on application to be registered as a citizen. Under the Bomas Draft and Harmonized draft this is put under Children found in Kenya and adopted children (neatness and orderliness in the proposed draft chapter are wanting compared to the other two drafts) (4) Parliament shall enact legislation establishing conditions on which citizenship may be granted to individuals who are citizens of other countries. (5) This Article applies to a person as from the effective date, but any requirements that must be satisfied before the person is entitled to be registered as a citizen shall be regarded as having been satisfied irrespective of whether the person satisfied them before or after the effective date, or partially before, and partially after, the effective date. Again this Section seems misplaced. It is under Citizenship by Registration but should actually be referring to the whole chapter on citizenship 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Dual citizenship 16. A citizen by birth does not lose citizenship by acquiring the citizenship of another country. Omits or deletes the following A person who as a result of acquiring the citizenship of another country ceased to be a Kenyan citizen is entitled, on application, to regain Kenyan citizenship. The proposed draft leaves it up to Parliament to decide the duties of Citizens The Bomas and the Harmonized draft were more specific and had the following which have been omitted Responsibilities of a citizen 24. (1) All citizens have the responsibility to— (a) acquire a basic understanding of the provisions of this Constitution and promote its ideals and objectives; (b) respect, uphold and defend this Constitution and the law; (c) promote democracy, good governance and the rule of law; (d) vote in elections and referenda; (e) strive to foster national unity and live in harmony with others; (f) co-operate with law enforcement agencies for the maintenance of law and order; (g) pay all due taxes; (h) not to engage in corruption; (i) engage in work for the common good and contribute to national development; (j) develop their abilities through acquisition of knowledge, continuous learning and the development of skills; (k) contribute to the welfare and advancement of the community where they live; (l) promote family life and welfare and act responsibly in the context of the family; (m) protect and safeguard public property from waste and misuse; (n) protect the environment and conserve natural resources; and (o) understand and enhance the Republic’s place in the international community. (2) The responsibilities set out in clause (1) apply equally, where appropriate, to non-citizens. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) The Bomas draft and Harmonized draft have only one section on revocation or deprivation of Citizenship which was Deprivation of citizenship 22. A person may be deprived of citizenship only if the person acquired citizenship by means of fraud, false representation or concealment of any material fact. the proposed draft adds much more to the previous section as shown below (Put simply it provides more opportunities for citizenship to be deprived of someone than the other 2 drafts) Revocation of citizenship 17. (1) If a person acquired citizenship by registration, the citizenship may be revoked if — (a) the person acquired the citizenship by fraud, false representation or concealment of any material fact; (b) the person has, during any war in which Kenya was engaged, unlawfully traded or communicated with an enemy or been engaged in or associated with any business that was knowingly carried on in such a manner as to assist an enemy in that war; (c) the person has, within five years after registration, been convicted of an offence and sentenced to imprisonment for a term of three years or longer; or (d) the person has, at any time after registration, been convicted of treason, or of an offence for which–– (i) a penalty of at least seven years imprisonment may be imposed; or (ii) a more severe penalty may be imposed. (2) The citizenship of a person who was presumed to be a citizen by birth, as contemplated in Article 14 (4), may be revoked if–– (a) the citizenship was acquired by fraud, false representation or concealment of any material fact by any person; (b) the nationality or parentage of the person becomes known, and reveals that the person was a citizen of another country; or (c) the age of the person becomes known, and reveals that the person was older than eight years when found in Kenya. The Section on Residence which was both in the Bomas and Harmonized drafts is deleted Residence 23. (1) The following persons may enter and reside in Kenya if they comply with the conditions prescribed by or under an Act of Parliament governing entry and residence— (a) a former citizen; (b) a foreign wife or widow or foreign husband or widower of a citizen; and (c) a child of a citizen. (2) Parliament may enact legislation governing the entry into and residence in Kenya of other categories of persons and providing for the status of permanent residents. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Legislation on citizenship 18. Parliament shall enact legislation— (a) prescribing procedures by which a person may become a citizen; (b) governing entry into and residence in Kenya; (c) providing for the status of permanent residents; (d) providing for voluntary renunciation of citizenship; (e) prescribing procedures for revocation of citizenship; (f) prescribing the duties and rights of citizens; and This is an addition which wasn’t in the other 2 drafts it gives parliament an opportunity to prescribe further duties of citizens not specified in the draft. However all other clauses are the same in all 3 drafts (g) generally giving effect to the provisions of this Chapter 7/29/2010 johnpaulem@gmail.com 0735 - 586956 Slide 23: THE BILL OF RIGHTS Part 1—General provisions relating to the Bill of Rights 19—Rights and fundamental freedoms 20—Application of Bill of Rights 21—Implementation of rights and fundamental freedoms 22—Enforcement of Bill of Rights 23—Authority of courts to uphold and enforce the Bill of Rights 24—Limitation of rights or fundamental freedoms 25— Fundamental Rights and freedoms that may not be limited It is worthwhile noting that 19, 20, 22, 23 and 25 remain intact and unchanged as they were in both the Bomas draft and the Harmonized draft of Dec 17 2009. Also much of the Bill of rights apart from those we mention hereafter remain largely unchanged and beneficial On the flip side it is sad to note that 21 on Implementation of the rights and 24 on limitations of rights have been altered in a negative way 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Implementation of rights and fundamental freedoms 21. (1) It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. (2) The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under Article 43. (3) All State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities. (4) The State shall enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms. The proposed draft deletes all the following which was in both Bomas and Harmonized drafts (4) The State shall recognize and facilitate the role of civil society in the promotion and protection of the rights and fundamental freedoms in the Bill of Rights. Deletes the following which was in the Bomas and Harmonized draft (6) The State shall fulfil all its international obligations in respect of human rights and for that purpose the State shall – (a)report on time to international human rights bodies on the implementation of human rights treaties and other instruments; (b)publish reports intended for submission by the State to international bodies for a reasonable period and facilitate public discussion and debate on them before the reports are revised and submitted; and (c)facilitate submissions by civil society organizations to international human rights bodies 7) The comments and recommendations of international bodies relating to the international obligations of the State shall be disseminated to the public, and the Government shall make a statement to Parliament on whether and how it intends to implement those recommendations. 8) The State shall establish the necessary machinery to give full effect to the provisions of the Bill of Rights. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Limitation of rights and fundamental freedoms 24. (1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose. (2) Sec 1 (a) in the Bomas and Harmonized draft is deleted Limitation of rights or fundamental freedoms 33. (1) No right or fundamental freedom set out in the Bill of Rights may be limited except— by a limitation or qualification expressly set out in the provision containing that right or fundamental freedom or by law; and Sec 1(b) in the Bomas and Harmonized draft is altered to read in the Proposed draft “shall not be limited except by law” in Sec 1 Compare the two below Proposed draft 24. (1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— Bomas &Harmonized draft 33. (1) No right or fundamental freedom set out in the Bill of Rights may be limited except— (b) to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) This is an addition that was not in the Bomas or Harmonized draft. It means effectively that legislation can be passed to limit the enjoyment of these rights by Military and Police personnel (5) Despite clause (1) and (2), a provision in legislation may limit the application of the rights or fundamental freedoms in the following provisions to persons serving in the Kenya Defence Forces or the National Police Service–– (a) Article 31 – Privacy; (b) Article 36 – Freedom of association; (c) Article 37 – Assembly, demonstration, picketing and petition; (d) Article 41 – Labour relations; (e) Article 43 – Economic and social rights; and (f) Article 49 – Rights of arrested persons. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Part 2 –Rights and fundamental freedoms Right to life This article is one of the contentious issues. To see the contention it is important to compare the whole article in the Proposed draft with that of the Bomas draft which is as follows Bomas draft Right to life 34. (1) Every person has the right to life. (2) The life of a person begins at conception. (3) Abortion shall not be permitted unless, in the opinion of a registered medical practitioner, the life of the mother is in danger. Proposed draft: Right to Life 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. Sec 26 (3)This makes an allowance for further legislation to be passed to allow for instances where life can be taken away – the words “any other written law” mean that the constitution abdicates it’s protection of the right to life and delegates to subordinate law this responsibility Sec 26 (4)This The word UNLESS in normal and legal usage creates exceptions. The word OR in normal and legal usage creates alternatives. Unlike the Bomas draft above the Proposed draft offers need for emergency treatment, health of the mother is in danger, permitted by any other written law as other alternatives during which abortion is permitted. The harmonized draft steers clear of controversy with the terse and effective Right to life 35. (1) Every person has the right to life. (2) A person shall not be arbitrarily deprived of life 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Equality and freedom from discrimination 27. (1) Every person is equal before the law and has the right to equal protection and equal benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms. (3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. (4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. (5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4). (6) To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination. (7) Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need. (8) In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. 27 (8) This was one of the deleted clauses in the chapter 3 on National Values &Principles The Proposed draft combines the Articles on Equality and that of Freedom from discrimination which were separate in Bomas and Harmonized It actually adds several positive clauses The following section in Bomas and Harmonized drafts is deleted 3) A person may not be compelled to indicate or define that person’s ethnicity or race. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Proposed draft Human dignity 28. Every person has inherent dignity and the right to have that dignity respected and protected. The Harmonized and Bomas draft are more detailed as to what human dignity entails as shown below Human dignity 45. (1) Every person has inherent dignity and the right to have that dignity respected and protected. (2) The inherent dignity of every person— (a) includes the right to dispose of the remains of deceased persons in a dignified manner; and (b) extends to their remains after burial or cremation. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) The article on Gender in that was in both the Bomas and Harmonized drafts is completely deleted in the Proposed draft In the harmonized draft it is brief while the Bomas is more detailed Harmonized draft Gender 38. Women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social activities. Bomas draft Gender 37. (1) Women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social activities. (2) Women and men have an equal right to inherit, have access to and manage property. (3) Any law, culture, custom or tradition that undermines the dignity, welfare, interest or status of women or men is prohibited. (4) Despite clause (1), the State shall – (a) protect women and their rights, taking into account their unique status and natural maternal role in society; and (b) provide reasonable facilities and opportunities to enhance the welfare of women to enable them to realise their full potential and advancement. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 Slide 31: Freedom of conscience, religion, belief and opinion 32. (1) Every person has the right to freedom of conscience, religion, thought, belief and opinion. (2) Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship. (3) A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion. (4) A person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion. The following has been deleted from the Proposed draft (3) Every religious community is entitled to establish and run places of education at its own expense and to provide religious instruction for persons of that community in the course of providing the education. (4) Religious observances and religious instruction may be conducted at State or State-aided institutions, if— (a) they are conducted on an equitable basis; and (b) attendance at such observances or religious instruction is voluntary. The following has been deleted from the Proposed draft 6) A person shall not be compelled— (a) to take an oath that is contrary to that person’s religion or belief or that involves expressing a belief that the person does not hold; (b) to take an oath in a manner that is contrary to that person’s religion or belief or that involves expressing a belief that the person does not hold; (c) to receive religious instruction or to take part in or attend a religious ceremony or to observe a day of rest or other observance that relates to a religion that is not that person’s religion; (d) to perform, observe or undergo a rite or a religious practice; (e) to disclose that person’s beliefs or religious convictions; or (f) to engage in any other act that is contrary to that person’s belief or religion. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Freedom of expression 33. (1) Every person has the right to freedom of expression, which includes— (a) freedom to seek, receive or impart information or ideas; (b) freedom of artistic creativity; and (c) academic freedom and freedom of scientific research. (2) The right to freedom of expression does not extend to— (a) propaganda for war; (b) incitement to violence; (c) hate speech; or (d) advocacy of hatred that— (i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or (ii) is based on any ground of discrimination specified or contemplated in Article 27 (4). (3) In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others. 33(3) This is a positive addition to both the harmonized and the proposed drafts. It was not in the Bomas draft 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Freedom of the media 34. (1) Freedom and independence of electronic, print and all other types of media is guaranteed, but does not extend to any expression specified in Article 33 (2). This addition was not in both the Bomas or the Harmonized draft. These two drafts just have the first statement as shown below without the limitation. The proposed draft seems to tend towards limiting this freedom Bomas &Harmonized drafts Freedom of the media 50. (1) Freedom and independence of electronic, print and other media of all types are guaranteed. (5) Parliament shall enact legislation that provides for the establishment of a body, which shall— The Proposed and the Harmonized draft both rightly delete the section in the Bomas draft that was as follows (5) Parliament shall enact legislation that – (a)makes reasonable provision for equitable allocation of airtime by State-owned and other specified categories of broadcasting media, to political parties either generally or during election campaigns; (b) regulates freedom to broadcast in order to ensure fair election campaigning; and This section seemed to deviate from the main objective of the Article which is “freedom of the media” 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Access to information 35. (1) Every citizen has the right of access to— (a) information held by the State; and (b) information held by another person and required for the exercise or protection of any right or fundamental freedom. (2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person. (3) The State shall publish and publicise any important information affecting the nation. The Bomas draft 35 (4) has been deleted by both the Harmonized and Proposed draft. Presumably the necessary legislation has already been enacted by Parliament or the clauses in the draft are adequate. It reads as follows: 4) Parliament shall enact legislation to provide for access to information. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions : The Changes (omissions, deletions and additions . The following which was in both the Bomas and Harmonized drafts has been deleted from the Proposed draft 52. (1) Every person has the right to freedom of association. 2) The right extends to the formation, operation and continued existence of organisations. 3) A person shall not be compelled to join an association of any kind. 4) The State shall take legislative and policy measures to promote and encourage civil society participation in decision-making and in the management of public affairs at all levels of government. 5) Any legislation that requires civil society organisations to register or otherwise be subject to control, shall provide that – (a)registration may be required only if there is good reason for it; (b)registration shall be in the hands of a body that is independent of Government or political control; (c)any fee chargeable shall be no more than is necessary to defray essential cost of the procedure; (d)there shall be a right to registration, unless there is good reason to the contrary; (e)any standards of conduct applied to organisations shall be formulated with input from the affected organisations; and (f) de-registration procedures shall provide for a fair hearing and for a right of appeal to an independent tribunal. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions : The Changes (omissions, deletions and additions . The Proposed draft deletes the right to asylum which is in both the Bomas and Harmonized drafts Bomas &Harmonized drafts Refugees and asylum seekers 57. (1) The right to seek and obtain asylum is recognized and shall be granted in accordance with international law and practice on refugees. (2) Parliament shall enact legislation in compliance with international law and practice, governing persons who seek refuge or asylum in Kenya. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions : The Changes (omissions, deletions and additions The freedom to trade and profession in both the Bomas and Harmonised drafts is deleted in the proposed. The harmonized draft however has a limitation on the practice of the same. Bomas draft Freedom of trade, occupation and profession 57. (1) Every person has the right to choose a trade, occupation or profession. Harmonized Freedom of trade, occupation and profession 58. (1) Every person has the right to choose a trade, occupation or profession. (2) The practice of a trade, occupation or profession may be regulated by legislation. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions : The Changes (omissions, deletions and additions Protection of right to property (5) The State shall support, promote and protect the intellectual property rights of the people of Kenya. This is a good addition by the proposed draft. The Bomas and Harmonized draft seem to be deviated from “property” to “land” 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions : The Changes (omissions, deletions and additions 43. (1) Every person has the right— (a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care; (b) to accessible and adequate housing, and to reasonable standards of sanitation; (c) to be free from hunger, and to have adequate food of acceptable quality; (d) to clean and safe water in adequate quantities; (e) to social security; and (f) to education. (2) A person shall not be denied emergency medical treatment. (3) The State shall provide appropriate social security to persons who are unable to support themselves and their dependants. The proposed draft has combined the Articles on Health and that of Social security, food, education, housing, However in terms of orderliness the other drafts seem much better with the divisions. Also in the process of summary some important clause have been deleted from the article on education. Compare below with the proposed above Harmonized draft Social security 61. (1) Every person has the right to social security. (2) The State shall provide appropriate social security to persons who are unable to support themselves or their dependants. Health 62. (1) Every person has the right to health, which includes the right to health care services, including reproductive health care. (2) No person may be refused emergency medical treatment. Education 63. (1) Every person has the right to education. (2) The State shall institute a programme to implement the right of every child to free and compulsory pre-primary and primary education and in so doing shall pay particular attention to children with special needs. (3) The State shall take measures to make secondary and post-secondary education progressively available and accessible (4) Every person has the right to establish and maintain, at that person’s own expense, independent educational institutions that comply with the requirements of this Constitution, and meet standards laid down in legislation. Housing 64. Every person has the right to accessible and adequate housing and to reasonable standards of sanitation. Food 65. Every person has the right to be free from hunger and to adequate food of acceptable quality. Water 66. Every person has the right to clean and safe water in adequate quantities. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions : The Changes (omissions, deletions and additions Fair administrative action Deleted or omitted from the Proposed draft Right not to obey unlawful instructions 71. (1) Every person has a right not to obey unlawful instructions. (2) A person shall not be liable to punishment under any law for disobeying unlawful instructions. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 You do not have the permission to view this presentation. In order to view it, please contact the author of the presentation.
study of the proposed constitution jeipea Download Post to : URL : Related Presentations : Share Add to Flag Embed Email Send to Blogs and Networks Add to Channel Uploaded from authorPOINT lite Insert YouTube videos in PowerPont slides with aS Desktop Copy embed code: (To copy code, click on the text box) Embed: URL: Thumbnail: WordPress Embed Customize Embed The presentation is successfully added In Your Favorites. Views: 120 Category: Others/ Misc License: All Rights Reserved Like it (0) Dislike it (0) Added: July 29, 2010 This Presentation is Public Favorites: 0 Presentation Description This is my comparison of the Bomas Draft, The Harmonized draft of Nov 17 2009 and the Proposed Draft May 2010. I have compared the 3 from start to the Chapter on the Bill of rights. Comments Posting comment... Premium member Presentation Transcript Study of the Proposed Constitution of Kenya 6th May 2010 : Study of the Proposed Constitution of Kenya 6th May 2010 A comparison with the Bomas Draft of March 2004 and the Harmonized draft of 17th November 2009 By John Paul Mugambi 7/29/2010 johnpaulem@gmail.com 0735 - 586956 Points of note : Points of note It is important while reading the Proposed draft constitution to read Article 258, 259 and 260 under General provisions. These Articles help one not to misconstrue or misinterpret the constitution It is important while reading this “Comparison” to have copies of the “3 drafts” with you (note I do not use the Proposed/rejected draft of 2005 because to date no one has claimed “authorship” of that draft – it is a questionable draft). My comparison of the Proposed draft, the Bomas draft and the Harmonized draft of Nov 17 2009 is based on the following premises (Note in my comparison in this document I have left out the sections where no changes have been made – for brevity’s sake) 7/29/2010 johnpaulem@gmail.com 0735 - 586956 Points of note ….cont : Points of note ….cont To determine whether the Proposed draft is good or bad (therefore whether to vote Yes or No) it is important to compare this draft with the other drafts that Kenyan taxpayer money has been used in writing in the past. It is important to see whether the changes (deletion, omission, addition) that have been made to the earlier drafts to come up with the proposed are for better or for worse. It is important to read into possible outcomes of deletions or omissions. It is important to question whether the interest groups that have urged or brought about the changes in the draft have declared their vested interest or have they hidden behind the Committee of Experts If these groups have not declared their interest then it is important to question the accountability and transparency of the draft 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) SOVEREIGNTY OF THE PEOPLE AND SUPREMACY OF THIS CONSTITUTION Sovereignty of the people 1. (1) All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution. The proposed draft uses the word shall unlike the Bomas and Harmonized drafts which use the word may 1) All sovereign authority belongs to the people of Kenya and may be exercised only in accordance with this Constitution. (2) The people may exercise their sovereign power either directly or through their democratically elected representatives. The Bomas draft does not have section two. The harmonized draft of Nov 17th has the same section. It seems there is an emphasis on exercising power through democratically elected representatives. (3) Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution–– (a) Parliament and the legislative assemblies in the county governments; (b) the national executive and the executive structures in the in the county governments; and (c) the Judiciary and independent tribunals. The proposed draft says that sovereign power is delegated to??? The Bomas Draft and the Harmonized draft both state that Authority is delegated to as shown below. 2) Authority is delegated to the following State organs, which shall perform their functions in accordance with this Constitution – The following which was (d) in both Bomas and Harmonized drafts is deleted d) the constitutional commissions, independent offices and other State offices. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) While the Bomas and Harmonized drafts leave room for whatever kind of devolved structures (as below)that will be in place the proposed draft is specific to county governments as shown above 2) Authority is delegated to the following State organs, which shall perform their functions in accordance with this Constitution – a) Parliament and the legislative structures in the devolved governments; b) the national executive and the executive structures in the devolved governments; c) the Judiciary and other independent tribunals; and d) the constitutional commissions, independent offices and other State offices. (4) The sovereign power of the people is exercised at— (a) the national level; and (b) the county level This is an addition that was not in the Harmonized draft of November 2009 or the Bomas draft. Again it appears to emphasize levels of government National and County stating sovereign power is exercised at. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 Slide 6: Supremacy of this Constitution Under this Article the proposed draft completely omits the following which was in Bomas and the Harmonized 3) A person, or a group of persons, may bring an action in the High Court for a declaration that any law is inconsistent with, or is in contravention of, this Constitution. 4) If the High Court makes a declaration under clause (3), it may also make any order necessary to give effect to the declaration In Sec 2(5) The proposed draft appears to deviate from the main article supremacy of the constitution. It goes on to state about international law, treaties and conventions ratified by Kenya as being part of the law of Kenya under “this constitution” This part is not in the Bomas or Harmonized drafts it is a questionable addition (5) The general rules of international law shall form part of the law of Kenya. (6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 Slide 7: CHAPTER TWO THE REPUBLIC Declaration of the Republic The Proposed draft refers us to Article 10 for the National Values and Principles of Governance. (It is important to note this as later you realise that Article 10 is a mutilated version of what was Chapter 3 in both the Bomas and Harmonized drafts). Compare The Proposed Draft “The Republic of Kenya shall be a multi-party democratic State founded on the national values and principles of governance referred to in Article 10.” Both the Bomas draft and the harmonized draft on the other hand state. “The Republic is founded on principles of good governance through multiparty democracy, participatory governance, transparency and accountability, separation and devolution of powers, respect for human rights and fundamental freedoms and the rule of law.” 7/29/2010 johnpaulem@gmail.com 0735 - 586956 Slide 8: Territory of Kenya 5. Kenya consists of the territory and territorial waters comprising Kenya on the effective date, and any additional territory and territorial waters as defined by an Act of Parliament This clause leaves it up to parliament to decide where and how wide Kenya’s territory reaches … it might be in conflict with Article 2 (6) on International treaties at any one point in time. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Devolution and access to services 6. (1) The territory of Kenya is divided into the counties specified in the First Schedule. (2) The governments at the national and county levels are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation. (3) A national State organ shall ensure reasonable access to its services in all parts of the Republic, so far as it is appropriate to do so having regard to the nature of the service. Does not specify whether it is authority that is delegated from the central government, power to make legislation or whether it is financial or that of managing entities – leaves it to the vague “consultation and cooperation” The proposed draft refers to schedule 1 for a list of counties in which the territory of Kenya has been divided into. The harmonized draft has an article very similar to Article 1(4) of the proposed “Article 6(1) The sovereign power of the people is exercised at— (a) the national level; (b) the regional level; and (c) the county level.” The Bomas draft has more regions of devolution than the Harmonized draft as follows The sovereign authority of the people is exercised at – (a)the national level; (b)the regional level; (c)the district level; and (d)the locational level. The Bomas and the harmonized draft have similar clauses. All three drafts continue to explain further the new functions of the devolved governments under the schedules This part was in the harmonized draft but not under devolution – it is under access to services as follows Access to services 8. A national State organ shall ensure access to its services in all regions. Note the difference of the above while in the proposed draft - It uses the words reasonable access to its services, in as far as it is appropriate to do so having regard to the nature of the service 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) National, official and other languages 7. (1) The national language of the Republic is Kiswahili. (2) The official languages of the Republic are Kiswahili and English. (3) The State shall–– (a) promote and protect the diversity of language of the people of Kenya; and (b) promote the development and use of indigenous languages, Kenyan Sign language, Braille and other communication formats and technologies accessible to persons with disabilities. The proposed draft lumps together indigenous language with Kenya sign language and Braille as shown above. The harmonized draft and the Bomas draft are the same splitting it as follows (3)The State shall respect, promote and protect the diversity of language of the people of Kenya and shall promote the development and use of indigenous languages and sign language. (4) The State shall promote the development and use of Braille and other appropriate modes of communication for persons with visual and other impairments. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) State and religion 8. There shall be no State religion. The Proposed draft as shown above omits the Bomas Draft and the Harmonized draft’s Sections 1 And Section 3 that are shown below. 10. (1) State and religion shall be separate. (3) The State shall treat all religions equally. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) National values and principles of governance 10. (1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them— (a) applies or interprets this Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. (2) The national values and principles of governance include— (a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; (b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; (c) good governance, integrity, transparency and accountability; and (d) sustainable development. While the other drafts have National Values and Principles of Governance as a whole chapter i.e. Chapter 3 The Proposed draft has National Values and Principles of Governance as an Article as Article 10 in Chapter 2. Most of the National values &Principles of Governance are deleted Unlike the Bomas Draft the proposed draft also states that National values bind one during enactment of a law. The Bomas draft limited itself to application and interpretation. The draft in Article 10(1) has a non specific summary a bit similar to what was in the harmonized draft and Bomas draft in relation to Declaration of the republic 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) The proposed draft omits 14 Sections of National Values and Principles of Governance contained in both the Bomas and Harmonized drafts. It is important to note that these deleted sections are referred to in declaration of a republic in Chapter as follows “The Republic of Kenya shall be a multi-party democratic State founded on the national values and principles of governance referred to in Article 10 The Omitted Sections include: (2) The State shall – (a)promote national unity and develop the commitment of all citizens to the spirit of nationhood and patriotism; (b)recognise the diversity of the people and promote and protect the cultures of its communities; (c)promote the participation of the people in public affairs and facilitate the sharing and devolution of power; (d)ensure open and transparent government and accountability of State officers, public officers, State organs and public authorities; (e)take effective measures to eradicate all forms of corruption; (f) ensure access of the people to independent, impartial, competent, timely and affordable institutions of justice; (g)recognise the role of civil society in governance and facilitate its role in ensuring the accountability of government; (h)protect and promote human rights and fundamental freedoms and enhance the dignity of individuals and communities; (i) ensure full participation of women, persons with disabilities, marginalized communities and all other citizens in the political, social and economic life of the country; (j) implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender; (k)progressively implement the principle that at least five per cent of the members of elective and appointive bodies shall be persons with disabilities; (l) recognise the special responsibilities that the State, society and parents owe to children and uphold the family and the institution of marriage; (m) be committed to social justice and the realization of the rights of the people of Kenya to basic needs and a secure environment; (n)promote the development of, and recognise and enhance the role of, science and technology; (o)eliminate disparities in development between the various parts of the country and sectors of society; (p) manage national resources fairly and efficiently for the welfare of the people; (q) recognise its responsibilities to future generations of the people of Kenya, by pursuing policies for the sustainable management of the environment; and (r) be a good citizen of Africa and of the world and commit itself to work for international peace and solidarity. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Culture 11. (1) This Constitution recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. (2) The State shall— (a) promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage; (b) recognise the role of science and indigenous technologies in the development of the nation; and (c) promote the intellectual property rights of the people of Kenya. The chapter on Culture is Chapter 5 of the Harmonized draft – it is reduced to one Article in the Proposed draft. The proposed draft leaves out the following: Recognition of culture The draft leaves out the following which is in the Harmonized draft Responsibility of the State in respect of culture 27. The State shall— (a) promote understanding, tolerance and appreciation of diversity; (b) respect, preserve, protect and promote the heritage of Kenya, and in particular, its cultural, historical, religious, sacred, archaeological and other significant sites and artefacts; (c) promote— (i) research and an education policy that enhances culture and cultural values and enables the people to develop strong moral, ethical and spiritual foundations; (ii) all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications and libraries and other cultural heritage; and (iii) research into and documentation of the cultures of Kenya, including national history and customary law; 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Culture Cont… (d) recognize, support and promote the appropriate application of modern and traditional medical practices; (e) recognize the role of science and indigenous technologies in the development of the nation; (f) support, promote and protect indigenous knowledge and the intellectual property rights of the people of Kenya; (g) through legislation, ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage; (h) promote, where applicable, the use of traditional farming systems, and traditional foods and drinks; and (i) through legislation, recognize and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) The Bomas draft has a National Commission on Culture which is omitted in the two latter drafts National Commission on Culture 26. (1) There is established the National Commission on Culture consisting of the chairperson, two vice-chairpersons and seven other members. (2) The functions of the Commission are to – (a)advise on matters of policy and practice relating to culture; (b) carry out and promote research into and documentation of the cultures of Kenya, including national history and customary law; (c)protect cultural sites and historic monuments for the benefit of the communities for which those sites have significance, and for the nation; (d)endeavour to secure the return of historically and culturally significant relics, archeological finds, documents and other expatriated material culture for the enrichment of Kenyan museums; (e)enhance the sustainable use of the heritage and creativity of the nation for tourism and other economic uses; (f) promote and preserve Kiswahili, all languages of the people of Kenya and sign language and Braille; (g)establish criteria for recognition and honouring of national heroes and heroines; (h)encourage and develop the positive traditions of the nation in the support, protection and care of disadvantaged and vulnerable members of society; and (i) generally carry out the objectives of this Chapter. Cultural day 27. The 26th day of December is designated as Utamaduni Day. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) CHAPTER THREE CITIZENSHIP Entitlements of citizens 12. (1) Every citizen is entitled to— (a) the rights, privileges and benefits of citizenship, subject to the limits provided or permitted by this Constitution; and (b) a Kenyan passport and any document of registration or identification issued by the State to citizens. The proposed draft rightly deletes section 1(c) that was in both the harmonized and proposed draft because it seems to deviate from the main point of entitlements to talk about responsibilities Every Citizen is entitled to – a then b as above - then c as shown below (c) subject to the responsibilities of citizenship. (2) A passport or other document referred to in clause (1) (b) may be denied, suspended or confiscated only in accordance with an Act of Parliament that satisfies the criteria referred to in Article 24. The proposed draft adds this which was not in the Bomas draft. It provides for a withdrawal of an entitlement to citizens. It leaves it up to parliament to determine this legislature without violating the Article 24 on the Bill of Rights on limitations. It is important to note that Article 24 has also been subjected to some changes 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Citizenship by birth 14. (1) A person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen. The harmonized draft goes on to specify that this applies even where the father or mother acquired citizenship through other methods 2 …either the father or mother is a citizen (a) who was born in Kenya; or (b) by registration or naturalization. (2) Clause (1) applies equally to a person born before the effective date, whether or not the person was born in Kenya, if either the mother or father of the person is or was a citizen. (3) Parliament may enact legislation limiting the effect of clauses (1) and (2) on the descendents of Kenyan citizens who are born outside Kenya. This an addition that was not in the Bomas or the Harmonized draft. Its effect is to allow parliament an opportunity to limit access to children born to citizens outside Kenya (4) A child found in Kenya who is, or appears to be, less than eight years of age, and whose nationality and parents are not known, is presumed to be a citizen by birth. Under the Bomas Draft and Harmonized draft this is put under Children found in Kenya and adopted children unlike the proposed which puts it under citizenship by birth (neatness and orderliness in the proposed draft are wanting) The harmonized draft in sec 3 also provides for those whose citizen parent died before the child is born. This is omitted in the proposed draft 3) If either parent of a person died before that person was born, that parent’s citizenship at the time of death applies, for all purposes of this Chapter, as if that parent had survived until the birth of that person. What was the Harmonized draft section 18 (2) and Bomas drafts Section 17(2) on Citizenship and marriage is deleted in the Proposed draft Citizenship and marriage (2) Citizenship is not lost through marriage or the dissolution of marriage. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Citizenship by registration 15. (1) A person who has been married to a citizen for a period of at least seven years is entitled on application to be registered as a citizen. Under the Bomas Draft and Harmonized draft this is put under Citizenship and Marriage (neatness and orderliness in the proposed draft chapter are wanting compared to the other two drafts) (2) A person who has been lawfully resident in Kenya for a continuous period of at least seven years, and who satisfies the conditions prescribed by an Act of Parliament, may apply to be registered as a citizen. Under the Bomas Draft and Harmonized draft this is put under Citizenship by Naturalization (neatness and orderliness in the proposed draft chapter are wanting compared to the other two drafts) (3) A child who is not a citizen, but is adopted by a citizen, is entitled on application to be registered as a citizen. Under the Bomas Draft and Harmonized draft this is put under Children found in Kenya and adopted children (neatness and orderliness in the proposed draft chapter are wanting compared to the other two drafts) (4) Parliament shall enact legislation establishing conditions on which citizenship may be granted to individuals who are citizens of other countries. (5) This Article applies to a person as from the effective date, but any requirements that must be satisfied before the person is entitled to be registered as a citizen shall be regarded as having been satisfied irrespective of whether the person satisfied them before or after the effective date, or partially before, and partially after, the effective date. Again this Section seems misplaced. It is under Citizenship by Registration but should actually be referring to the whole chapter on citizenship 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Dual citizenship 16. A citizen by birth does not lose citizenship by acquiring the citizenship of another country. Omits or deletes the following A person who as a result of acquiring the citizenship of another country ceased to be a Kenyan citizen is entitled, on application, to regain Kenyan citizenship. The proposed draft leaves it up to Parliament to decide the duties of Citizens The Bomas and the Harmonized draft were more specific and had the following which have been omitted Responsibilities of a citizen 24. (1) All citizens have the responsibility to— (a) acquire a basic understanding of the provisions of this Constitution and promote its ideals and objectives; (b) respect, uphold and defend this Constitution and the law; (c) promote democracy, good governance and the rule of law; (d) vote in elections and referenda; (e) strive to foster national unity and live in harmony with others; (f) co-operate with law enforcement agencies for the maintenance of law and order; (g) pay all due taxes; (h) not to engage in corruption; (i) engage in work for the common good and contribute to national development; (j) develop their abilities through acquisition of knowledge, continuous learning and the development of skills; (k) contribute to the welfare and advancement of the community where they live; (l) promote family life and welfare and act responsibly in the context of the family; (m) protect and safeguard public property from waste and misuse; (n) protect the environment and conserve natural resources; and (o) understand and enhance the Republic’s place in the international community. (2) The responsibilities set out in clause (1) apply equally, where appropriate, to non-citizens. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) The Bomas draft and Harmonized draft have only one section on revocation or deprivation of Citizenship which was Deprivation of citizenship 22. A person may be deprived of citizenship only if the person acquired citizenship by means of fraud, false representation or concealment of any material fact. the proposed draft adds much more to the previous section as shown below (Put simply it provides more opportunities for citizenship to be deprived of someone than the other 2 drafts) Revocation of citizenship 17. (1) If a person acquired citizenship by registration, the citizenship may be revoked if — (a) the person acquired the citizenship by fraud, false representation or concealment of any material fact; (b) the person has, during any war in which Kenya was engaged, unlawfully traded or communicated with an enemy or been engaged in or associated with any business that was knowingly carried on in such a manner as to assist an enemy in that war; (c) the person has, within five years after registration, been convicted of an offence and sentenced to imprisonment for a term of three years or longer; or (d) the person has, at any time after registration, been convicted of treason, or of an offence for which–– (i) a penalty of at least seven years imprisonment may be imposed; or (ii) a more severe penalty may be imposed. (2) The citizenship of a person who was presumed to be a citizen by birth, as contemplated in Article 14 (4), may be revoked if–– (a) the citizenship was acquired by fraud, false representation or concealment of any material fact by any person; (b) the nationality or parentage of the person becomes known, and reveals that the person was a citizen of another country; or (c) the age of the person becomes known, and reveals that the person was older than eight years when found in Kenya. The Section on Residence which was both in the Bomas and Harmonized drafts is deleted Residence 23. (1) The following persons may enter and reside in Kenya if they comply with the conditions prescribed by or under an Act of Parliament governing entry and residence— (a) a former citizen; (b) a foreign wife or widow or foreign husband or widower of a citizen; and (c) a child of a citizen. (2) Parliament may enact legislation governing the entry into and residence in Kenya of other categories of persons and providing for the status of permanent residents. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Legislation on citizenship 18. Parliament shall enact legislation— (a) prescribing procedures by which a person may become a citizen; (b) governing entry into and residence in Kenya; (c) providing for the status of permanent residents; (d) providing for voluntary renunciation of citizenship; (e) prescribing procedures for revocation of citizenship; (f) prescribing the duties and rights of citizens; and This is an addition which wasn’t in the other 2 drafts it gives parliament an opportunity to prescribe further duties of citizens not specified in the draft. However all other clauses are the same in all 3 drafts (g) generally giving effect to the provisions of this Chapter 7/29/2010 johnpaulem@gmail.com 0735 - 586956 Slide 23: THE BILL OF RIGHTS Part 1—General provisions relating to the Bill of Rights 19—Rights and fundamental freedoms 20—Application of Bill of Rights 21—Implementation of rights and fundamental freedoms 22—Enforcement of Bill of Rights 23—Authority of courts to uphold and enforce the Bill of Rights 24—Limitation of rights or fundamental freedoms 25— Fundamental Rights and freedoms that may not be limited It is worthwhile noting that 19, 20, 22, 23 and 25 remain intact and unchanged as they were in both the Bomas draft and the Harmonized draft of Dec 17 2009. Also much of the Bill of rights apart from those we mention hereafter remain largely unchanged and beneficial On the flip side it is sad to note that 21 on Implementation of the rights and 24 on limitations of rights have been altered in a negative way 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Implementation of rights and fundamental freedoms 21. (1) It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. (2) The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under Article 43. (3) All State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities. (4) The State shall enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms. The proposed draft deletes all the following which was in both Bomas and Harmonized drafts (4) The State shall recognize and facilitate the role of civil society in the promotion and protection of the rights and fundamental freedoms in the Bill of Rights. Deletes the following which was in the Bomas and Harmonized draft (6) The State shall fulfil all its international obligations in respect of human rights and for that purpose the State shall – (a)report on time to international human rights bodies on the implementation of human rights treaties and other instruments; (b)publish reports intended for submission by the State to international bodies for a reasonable period and facilitate public discussion and debate on them before the reports are revised and submitted; and (c)facilitate submissions by civil society organizations to international human rights bodies 7) The comments and recommendations of international bodies relating to the international obligations of the State shall be disseminated to the public, and the Government shall make a statement to Parliament on whether and how it intends to implement those recommendations. 8) The State shall establish the necessary machinery to give full effect to the provisions of the Bill of Rights. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Limitation of rights and fundamental freedoms 24. (1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose. (2) Sec 1 (a) in the Bomas and Harmonized draft is deleted Limitation of rights or fundamental freedoms 33. (1) No right or fundamental freedom set out in the Bill of Rights may be limited except— by a limitation or qualification expressly set out in the provision containing that right or fundamental freedom or by law; and Sec 1(b) in the Bomas and Harmonized draft is altered to read in the Proposed draft “shall not be limited except by law” in Sec 1 Compare the two below Proposed draft 24. (1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— Bomas &Harmonized draft 33. (1) No right or fundamental freedom set out in the Bill of Rights may be limited except— (b) to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) This is an addition that was not in the Bomas or Harmonized draft. It means effectively that legislation can be passed to limit the enjoyment of these rights by Military and Police personnel (5) Despite clause (1) and (2), a provision in legislation may limit the application of the rights or fundamental freedoms in the following provisions to persons serving in the Kenya Defence Forces or the National Police Service–– (a) Article 31 – Privacy; (b) Article 36 – Freedom of association; (c) Article 37 – Assembly, demonstration, picketing and petition; (d) Article 41 – Labour relations; (e) Article 43 – Economic and social rights; and (f) Article 49 – Rights of arrested persons. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Part 2 –Rights and fundamental freedoms Right to life This article is one of the contentious issues. To see the contention it is important to compare the whole article in the Proposed draft with that of the Bomas draft which is as follows Bomas draft Right to life 34. (1) Every person has the right to life. (2) The life of a person begins at conception. (3) Abortion shall not be permitted unless, in the opinion of a registered medical practitioner, the life of the mother is in danger. Proposed draft: Right to Life 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. Sec 26 (3)This makes an allowance for further legislation to be passed to allow for instances where life can be taken away – the words “any other written law” mean that the constitution abdicates it’s protection of the right to life and delegates to subordinate law this responsibility Sec 26 (4)This The word UNLESS in normal and legal usage creates exceptions. The word OR in normal and legal usage creates alternatives. Unlike the Bomas draft above the Proposed draft offers need for emergency treatment, health of the mother is in danger, permitted by any other written law as other alternatives during which abortion is permitted. The harmonized draft steers clear of controversy with the terse and effective Right to life 35. (1) Every person has the right to life. (2) A person shall not be arbitrarily deprived of life 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Equality and freedom from discrimination 27. (1) Every person is equal before the law and has the right to equal protection and equal benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms. (3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. (4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. (5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4). (6) To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination. (7) Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need. (8) In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. 27 (8) This was one of the deleted clauses in the chapter 3 on National Values &Principles The Proposed draft combines the Articles on Equality and that of Freedom from discrimination which were separate in Bomas and Harmonized It actually adds several positive clauses The following section in Bomas and Harmonized drafts is deleted 3) A person may not be compelled to indicate or define that person’s ethnicity or race. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Proposed draft Human dignity 28. Every person has inherent dignity and the right to have that dignity respected and protected. The Harmonized and Bomas draft are more detailed as to what human dignity entails as shown below Human dignity 45. (1) Every person has inherent dignity and the right to have that dignity respected and protected. (2) The inherent dignity of every person— (a) includes the right to dispose of the remains of deceased persons in a dignified manner; and (b) extends to their remains after burial or cremation. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) The article on Gender in that was in both the Bomas and Harmonized drafts is completely deleted in the Proposed draft In the harmonized draft it is brief while the Bomas is more detailed Harmonized draft Gender 38. Women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social activities. Bomas draft Gender 37. (1) Women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social activities. (2) Women and men have an equal right to inherit, have access to and manage property. (3) Any law, culture, custom or tradition that undermines the dignity, welfare, interest or status of women or men is prohibited. (4) Despite clause (1), the State shall – (a) protect women and their rights, taking into account their unique status and natural maternal role in society; and (b) provide reasonable facilities and opportunities to enhance the welfare of women to enable them to realise their full potential and advancement. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 Slide 31: Freedom of conscience, religion, belief and opinion 32. (1) Every person has the right to freedom of conscience, religion, thought, belief and opinion. (2) Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship. (3) A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion. (4) A person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion. The following has been deleted from the Proposed draft (3) Every religious community is entitled to establish and run places of education at its own expense and to provide religious instruction for persons of that community in the course of providing the education. (4) Religious observances and religious instruction may be conducted at State or State-aided institutions, if— (a) they are conducted on an equitable basis; and (b) attendance at such observances or religious instruction is voluntary. The following has been deleted from the Proposed draft 6) A person shall not be compelled— (a) to take an oath that is contrary to that person’s religion or belief or that involves expressing a belief that the person does not hold; (b) to take an oath in a manner that is contrary to that person’s religion or belief or that involves expressing a belief that the person does not hold; (c) to receive religious instruction or to take part in or attend a religious ceremony or to observe a day of rest or other observance that relates to a religion that is not that person’s religion; (d) to perform, observe or undergo a rite or a religious practice; (e) to disclose that person’s beliefs or religious convictions; or (f) to engage in any other act that is contrary to that person’s belief or religion. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Freedom of expression 33. (1) Every person has the right to freedom of expression, which includes— (a) freedom to seek, receive or impart information or ideas; (b) freedom of artistic creativity; and (c) academic freedom and freedom of scientific research. (2) The right to freedom of expression does not extend to— (a) propaganda for war; (b) incitement to violence; (c) hate speech; or (d) advocacy of hatred that— (i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or (ii) is based on any ground of discrimination specified or contemplated in Article 27 (4). (3) In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others. 33(3) This is a positive addition to both the harmonized and the proposed drafts. It was not in the Bomas draft 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Freedom of the media 34. (1) Freedom and independence of electronic, print and all other types of media is guaranteed, but does not extend to any expression specified in Article 33 (2). This addition was not in both the Bomas or the Harmonized draft. These two drafts just have the first statement as shown below without the limitation. The proposed draft seems to tend towards limiting this freedom Bomas &Harmonized drafts Freedom of the media 50. (1) Freedom and independence of electronic, print and other media of all types are guaranteed. (5) Parliament shall enact legislation that provides for the establishment of a body, which shall— The Proposed and the Harmonized draft both rightly delete the section in the Bomas draft that was as follows (5) Parliament shall enact legislation that – (a)makes reasonable provision for equitable allocation of airtime by State-owned and other specified categories of broadcasting media, to political parties either generally or during election campaigns; (b) regulates freedom to broadcast in order to ensure fair election campaigning; and This section seemed to deviate from the main objective of the Article which is “freedom of the media” 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions) : The Changes (omissions, deletions and additions) Access to information 35. (1) Every citizen has the right of access to— (a) information held by the State; and (b) information held by another person and required for the exercise or protection of any right or fundamental freedom. (2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person. (3) The State shall publish and publicise any important information affecting the nation. The Bomas draft 35 (4) has been deleted by both the Harmonized and Proposed draft. Presumably the necessary legislation has already been enacted by Parliament or the clauses in the draft are adequate. It reads as follows: 4) Parliament shall enact legislation to provide for access to information. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions : The Changes (omissions, deletions and additions . The following which was in both the Bomas and Harmonized drafts has been deleted from the Proposed draft 52. (1) Every person has the right to freedom of association. 2) The right extends to the formation, operation and continued existence of organisations. 3) A person shall not be compelled to join an association of any kind. 4) The State shall take legislative and policy measures to promote and encourage civil society participation in decision-making and in the management of public affairs at all levels of government. 5) Any legislation that requires civil society organisations to register or otherwise be subject to control, shall provide that – (a)registration may be required only if there is good reason for it; (b)registration shall be in the hands of a body that is independent of Government or political control; (c)any fee chargeable shall be no more than is necessary to defray essential cost of the procedure; (d)there shall be a right to registration, unless there is good reason to the contrary; (e)any standards of conduct applied to organisations shall be formulated with input from the affected organisations; and (f) de-registration procedures shall provide for a fair hearing and for a right of appeal to an independent tribunal. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions : The Changes (omissions, deletions and additions . The Proposed draft deletes the right to asylum which is in both the Bomas and Harmonized drafts Bomas &Harmonized drafts Refugees and asylum seekers 57. (1) The right to seek and obtain asylum is recognized and shall be granted in accordance with international law and practice on refugees. (2) Parliament shall enact legislation in compliance with international law and practice, governing persons who seek refuge or asylum in Kenya. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions : The Changes (omissions, deletions and additions The freedom to trade and profession in both the Bomas and Harmonised drafts is deleted in the proposed. The harmonized draft however has a limitation on the practice of the same. Bomas draft Freedom of trade, occupation and profession 57. (1) Every person has the right to choose a trade, occupation or profession. Harmonized Freedom of trade, occupation and profession 58. (1) Every person has the right to choose a trade, occupation or profession. (2) The practice of a trade, occupation or profession may be regulated by legislation. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions : The Changes (omissions, deletions and additions Protection of right to property (5) The State shall support, promote and protect the intellectual property rights of the people of Kenya. This is a good addition by the proposed draft. The Bomas and Harmonized draft seem to be deviated from “property” to “land” 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions : The Changes (omissions, deletions and additions 43. (1) Every person has the right— (a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care; (b) to accessible and adequate housing, and to reasonable standards of sanitation; (c) to be free from hunger, and to have adequate food of acceptable quality; (d) to clean and safe water in adequate quantities; (e) to social security; and (f) to education. (2) A person shall not be denied emergency medical treatment. (3) The State shall provide appropriate social security to persons who are unable to support themselves and their dependants. The proposed draft has combined the Articles on Health and that of Social security, food, education, housing, However in terms of orderliness the other drafts seem much better with the divisions. Also in the process of summary some important clause have been deleted from the article on education. Compare below with the proposed above Harmonized draft Social security 61. (1) Every person has the right to social security. (2) The State shall provide appropriate social security to persons who are unable to support themselves or their dependants. Health 62. (1) Every person has the right to health, which includes the right to health care services, including reproductive health care. (2) No person may be refused emergency medical treatment. Education 63. (1) Every person has the right to education. (2) The State shall institute a programme to implement the right of every child to free and compulsory pre-primary and primary education and in so doing shall pay particular attention to children with special needs. (3) The State shall take measures to make secondary and post-secondary education progressively available and accessible (4) Every person has the right to establish and maintain, at that person’s own expense, independent educational institutions that comply with the requirements of this Constitution, and meet standards laid down in legislation. Housing 64. Every person has the right to accessible and adequate housing and to reasonable standards of sanitation. Food 65. Every person has the right to be free from hunger and to adequate food of acceptable quality. Water 66. Every person has the right to clean and safe water in adequate quantities. 7/29/2010 johnpaulem@gmail.com 0735 - 586956 The Changes (omissions, deletions and additions : The Changes (omissions, deletions and additions Fair administrative action Deleted or omitted from the Proposed draft Right not to obey unlawful instructions 71. (1) Every person has a right not to obey unlawful instructions. (2) A person shall not be liable to punishment under any law for disobeying unlawful instructions. 7/29/2010 johnpaulem@gmail.com 0735 - 586956