NATIONAL CONSTITUTIONAL CONFERENCE. THE DRAFT CONSTITUTION OF .. Commission on the Implementation of the Constitution. Draft Constitution of Kenya [Bomas Draft], 15 March Published. 1 year ago. on. April 26, Draft Constitution of Kenya [Bomas Draft], 15 March Draft Constitution of Kenya [Bomas Draft], 15 March Contents. Original Document (PDF)» · Related Article». Contributed by: The Elephant, The Elephant.

Bomas Draft Constitution Pdf

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Constitutional Conference (Bomas) and, especially, the draft constitutions (the Bomas draft) and the referendum draft (the Wako draft). PDF | This study compares the three constitutional documents listed below that The Draft Constitution of Kenya, – the so-called Bomas Draft that was. 3) To prepare the Commission's report and a Draft Constitutional Bill; finalized the “Bomas draft constitutional Bill”, lasted from January until.

The Petitioner lastly complained of lack of an oath for the office of the Prime Minister. In their submissions, this is an important office and lack of such an oath will cause a constitutional crisis as the holder of the office will not have taken an oath in accordance with the Sixth Schedule of the Proposed Constitution that provides for such an oath for other office holders.

Finally, the Petitioners asserted that their petition had not been contradicted by either of the Respondents. Mr Bosek asserted that the Respondents had merely denied the allegations generally. The Petitioner asserted that they were not guilty of laches in coming to court as there is no law that provides for the timelines within which one is to come to court. Mr Bosek prayed to the court to give the orders prayed for. Indeed he submitted that the Petitioners were not praying for the referendum date to be thrown out, but were only keen to vote for a constitution in which this court had put its input in order to have a refined document.

We have taken into consideration all these issues and, for ease of determination, identified two broad hurdle or issues for determination; a Whether the court has jurisdiction to grant the prayers sought; and b Whether the CoE exceeded its statutory limits when identifying issues in contention and during the compilation of the Proposed Constitution.

The resolution of these questions should determine and completely rest the case. We now address each of these issues. The Learned State Counsel, Mr. Onyiso submitted for the 1st Respondent and submitted that no allegations had been made against the AG.

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He however submitted that the AG had done all that is required of him under the law and within the law. He opined that the review organs had completed their work and were fanctus officio save the Referendum and therefore the issues presented by the Petitioners were moot Mr.

Onyiso contended that this court has not been shown any evidence as to how the Respondents acted beyond or without jurisdiction. This court was not addressed on any issue regarding biasness, irrelevant considerations made, ill motives by the respondents to entitle them to the orders prayed for.

In his view, the Petitioners case seeks to question the merits of various decision making organs in the Constitutional Review Process and such arguments cannot be sustained. The 1st Respondents also submitted that the Petitioners have come to Court too late and therefore they should not be granted any Orders. On a balance of convenience, the Learned State Counsel submitted that the Petitioners have not established any case with a probability of success and the balance of convenience ought to tilt in favour of the Respondents.

Mr Onyiso relied on the case of Dr. Timothy Njoya and Others vs. Lastly on this, the Respondents Lawyers urged the Court not to grant any declaratory orders as any order given changing the date of the Referendum as this would amount to altering the very Constitution that creates this court.

Learned counsel for the 2nd petitioner, Mr. Nowrojee submitted that the Petitioners were in error in their submissions. The CoE had a wide mandate in determining the contentious issues and in drafting the draft constitution. The CoE had to look at and consider many issues as provided for in law. The CoE also carried out a number of consultations with various groups and persons. It collected views from Kenyans and therefore there was ample opportunity for the Petitioners to consult with the CoE.

Indeed Mr. Nowrojee submitted that the Petitioner neglected to take up the opportunity to consult with the CoE.

He did show the court the road map taken by CoE in carrying out its work and the nature of consultations done which is required by the Review Act.

Finally, Mr Nowrojee submitted that this court had no powers to grant the orders prayed for. The Learned Counsel also contended that above all that, the Petitioners are not entitled to the orders sought because of the following reasons: 1. Delay — The Petitioners have delayed in coming to Court. Declarations sought negate the finality principle and embarrass the process, the Review Act and Government. The Petitioners have mounted a collateral attack upon the final decision of statutory bodies of competent jurisdiction in compliance with statute or Constitution and this is also an attack on the principle of finality.

The Petition is an abuse of process as some of the prayers cannot be obtained in law or the Court has no jurisdiction. The Principles of Proportionality tilts more against the Petitioners. This is misconceived Petition as it seeks three things that the Court cannot do.

These are: i To make orders that require the Court to first decide which interpretation should be preferred between contending interpretations of the proposed Constitution. There is an alternative as under Section 44 1 of the Review Act, the Petitioners can challenge the conduct or the results of the Referendum.

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The Interveners interest was only on the provisions of Article 26 4. They did file their skeletal arguments with supporting documents. They did attempt to put in documents drawn by Prof. These statements however are not of evidential value as they do not meet the standards required in the Evidence Act. The Interveners submissions tended to go into the merit of the content which is not a matter in the realm of this court. The Petitioners skeletal arguments set out the areas of contention which they asked this court to determine.

We shall follow the same arrangements in the determination of this case. In their skeleton submission page 6 to 7 the Petitioners have argued that the jurisdiction of this court is established under section 60A of the constitution of Kenya and the issues raised in the Petition falls within the exclusive jurisdiction of this Honourable Court.

The court has exclusive original jurisdiction on matters arising out of the constitutional review process. There is no doubt in the courts mind that the non registration of inmates by the IIEC in the just concluded registration of voters for August 4th referendum is a matter of constitutional making process. The court is empowered by Section 60A aforesaid to entertain disputes that emulate from such process.

This is such a dispute. The issues herein are clearly within the mandate of the Court.

The striking out of clause 26 4 of the Proposed Constitution of Kenya , 2. Thus, the bone of contention, in essence, is whether we have jurisdiction to determine the content of the Proposed Constitution.

Section 60 A of the Constitution has donated to this Court original jurisdiction to hear and determine disputes relating to the Constitutional Review Process. This court has held in Petition No 1 of Priscilla N. In assessing the credibility of the process we may be able to determine whether or not the process was indeed, people driven, that it was as inclusive as it could possibly be. The methods of determining issues of legitimacy are based on the level of participation and involvement of the people in determining the content of the draft constitution, including a determination of whether people were facilitated to effectively participate in the process.

Therefore, as it was an intensely negotiated document with detailed provisions, it turned out to be also a very restrictive document leaving very limited room for manoeuvre for the CKRC. Cap 3A was enacted because the people of Kenya rejected forcefully the possibility of Parliament to review the constitution for them, even though, they agreed parliament represents them. Indeed the long title of Cap 3A spells out clearly this position, as it indicates that it was an Act of Parliament to facilitate the comprehensive review of the constitution by the people of Kenya, and for connected purposes.

The object and the purpose of the review of the constitution are set out in Section 3 as follows: a. Guaranteeing peace, national unity and integrity of the Republic of Kenya in order to safeguard the well-being of the people of Kenya; b. Establishing a free and democratic system of Government that enshrines good governance, constitutionalism, the rule of law, human rights and gender equity; c.

Recognising and demarcating divisions of responsibility among the various state organs including the executive, the legislature and the judiciary so as to create checks and balances between them and to ensure accountability of the Government and its officers to the people of Kenya; d. Respecting ethnic and regional diversity and communal rights including the right of communities to organise and participate in cultural activities and the expression of the identities; f.

Ensuring the provision of basic needs of all Kenyans through the establishment of an equitable framework for economic growth and equitable access to national resources; g. Promoting and facilitating regional and international cooperation to ensure economic development, peace and stability and to support democracy and human rights; h.

Strengthening national integration and unity; i. Creating conditions conducive to a free exchange of ides; j. Ensuring the full participation of the people in the management of public affairs; and k. Enabling Kenyans to resolve national issues on the basis of consensus. Section 4 provides the organs through which the review process was conducted as follows; a.

Draft Constitution of Kenya [Bomas Draft], 15 March

The referendum; and e. Be accountable to the people of Kenya; b. Ensure that the review process accommodates the diversity of the Kenyan people including socio-economic status, race, ethnicity, gender, religious faith, age, occupation, learning, persons with disabilities and the disadvantaged; c.

Ensure, particularly through the observance of the principles in the Third Schedule5 that the review process — i. Provides the people of Kenya with an opportunity to actively, freely, and meaningfully participate in generating and debating proposals to alter the Constitution; ii.

Is, subject to this Act, conducted in an open manner; and 5 The Third Schedule provides the Principles for a democratic and secure process for the review of the constitution. Is guided by respect for the universal principles of human rights, gender equity and democracy d. Ensure that the final outcome of the review process faithfully reflects the wishes of the people of Kenya. The main function of the CKRC was to collect and collate the views of the people of Kenya on proposals to alter the Constitution and on that basis, to draft a Bill to alter the Constitution for presentation to the National Assembly.

The work of the CKRC according to Cap 3A was visiting all the Constituencies in Kenya, compiling reports of the Constituency Forums, the NCC, conducting and recording decisions of the referendum and on that basis drafting a Bill for presentation to Parliament for enactment.

Section 28 provides that the CKRC shall, on the basis of the decision of the people at the referendum and the draft Bill as adopted by the NCC prepares the final report and draft Bill. The CKRC was then required to submit the final report and the Draft Bill to the Attorney-General for publication as a Bill to alter the Constitution and for presentation and tabling to the National Assembly for enactment.

Clearly, Parliament was not allowed to open the Bill under whatever circumstances because this would go against the object and the purpose of Cap 3A and would be contrary to an all-inclusive people-driven review of the Constitution process.

The referendum envisaged under Section 27 6 was not automatic. It was to be conducted only in the absence of a consensus at the NCC in which the question or questions would be taken to the people of Kenya for determination through a referendum. In this regard, the referendum would have been held within two months of the NCC Section 27 6.

Then calling the Bomas NCC which was to discuss, refine and find consensus on the provisions to facilitate publication of the final draft, which would then be submitted to the Attorney-General the AG of Kenya for publication and enactment by Parliament.

According to the Review Act, if there were contentious issues still unresolved, a motion to subject the question s to a referendum would have been moved on the floor of Bomas complying with the relevant procedure laid down by the Cap 3A. Technically, the Draft Constitution of Kenya, Bomas Draft was adopted and passed by the Bomas NCC without any contentious issue getting the requisite majority to require consideration and reference to a referendum.

Therefore, no motion was moved to subject the Draft Constitution to a referendum. Timothy Njoya, Munir M. Ochieng, Muchemi Gitahi and Ndungu Wainaina. This legal challenge raised some serious questions which are important to the legal process of the constitution.

Some of these include the following: 1. There were concerns regarding representation by delegates in the NCC.

For example, Cap 3A treated Nairobi as a county council resulting in it being represented by only three 3 delegates when it has over 2,, residents, while North Eastern Province with only , residents was represented by twelve 12 delegates.

Furthermore, all districts irrespective of population were represented by three delegates each; for example, Machakos district with about , people was represented by three 3 delegates just as Nakuru district with 1,,, Keiyo district with , and Lamu district with 72, people.

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The issue of the categories of delegates as set out in section 27 2 remained an issue which was contentious in that many Kenyans felt that although Cap 3A was intensely negotiated by all sectors and therefore fairly representative, representation from politicians was rather overwhelming.

These include Companies limited by guarantee, Trusts and other Charities and many other lobbies and organisations operating under other legal regime but not registered as NGOs. Therefore, in fact, in terms of voting majority, only politicians had the gravitas and the majority to carry the day on any issue and it may not be wrong to conclude that the Bomas Draft is political document.

As such, although all shades of opinions were represented, representation by categories was unfairly distributed and since the NCC was a voting process, this meant that those with the numbers carried the day.

Yet all registered political parties irrespective of their membership and representation were each entitled to one delegate to represent them in Bomas.

Further, there is the argument that minorities whatever their shade and background must be protected by all means necessary, a democracy requires that the majority should not bully the minority, they should instead scrupulously protect them. However in the context of constitution making the constitution is being made for all, minorities and majorities alike and, the voice of all should be heard so that they can all own the constitution which will bind them together.

The procedure of the review of the constitution through the NCC and the referendum contravened the provisions of section 47 of the Constitution of Kenya. Therefore, the Bomas NCC process should not have begun without amendments to that section of the Constitution. In any case since the object and purpose of the review of the constitution was to ensure an all-inclusive, people driven, and democratic review process, a referendum should have been automatic and not optional depending purely on the decisions of the NCC.

Therefore section 27 and 28 of Cap 3A should have provided for mandatory referendum. The issue of supremacy of the constitution and the importance of constitutionalism requiring a limited government under the rule of law need to be interrogated so as not to negate what the constitution stands for in the first place.

This means that no organ of government Executive, Legislature and the Judiciary is more powerful or important than the other although with different functions, only the Constitution is supreme — superior. The sovereignty of the Republic is the sovereignty of the people and all Governmental power and authority is exercised on behalf of the people. The court ruled that the Constitution gives every person in Kenya an equal right to review the Constitution which right includes the right to ratify the Constitution through a national referendum.

Therefore section 27 5 , 6 , and 7 of Cap 3A are unconstitutional and therefore invalid null and void. Its power is limited to the alteration of the existing Constitution only. Also, the court argued that the provision section 28 4 takes away the Constitutional discretion of the NA to accept or reject a Bill to alter the Constitution, and directs the National Assembly to enact the Bill presented to it into law.

Section 28 4 supposes that the Parliament enacts Bills into law but the court ruled that the Parliament has no such powers, it only passes Bills, and the enactment is the function of the Parliament comprising the NA and the President. Therefore during the adoption of the Bomas Draft, it did not matter very much that the majority of delegates were absent from the NCC because out of those who were present and voting, two thirds of them supported the motions moved to adopt different clauses of the Bomas Draft.

This is why only slightly more that fifty percent of the Bomas delegates adopted the Bomas Draft. Although, some delegates raised issues of contention in relation to the content of the draft and the committee work, these issues did not find majority support and were discussed and dealt with outside the CKRC Act, and only found their way to the NCC by way of recommendations which could not be binding on the NCC.

Accordingly, there were technically no issues of contention that required reference to a referendum then, as the majority of delegates were in consensus on the clauses being passed on the floor of Bomas NCC.

In the end legally speaking the process adhered faithfully to CAP 3A.

Yet, the Bomas Draft has not been enacted as the new Constitution because of what the political elite refer to as contentious issues rendering the adoption of the Bomas Draft impossible.

Parliament determined that it will deal with the issue of the ruling in the Njoya case by amending Cap 3A to allow for a mandatory referendum.

It also amended this same Act to enable itself to find consensus on the issues it finds contentious, amend the Bomas accordingly and then subject it to a national referendum.

It also gives the national Assembly the power to debate, consider, consult on the Bill, facilitate and promote national consensus on the contentious issues as recommended by the Parliamentary Select Committee and approved by the National Assembly. This is quite contradictory and confusing.

This means that the envisaged process under this Amendment acknowledges that the NCC adopted the Bomas draft on March 15th and proceeds from there to facilitate the completion of the review process in the manner mentioned here.

Indeed, even the law governing the review process was enacted as a result of intense political pressure from the opposition, Civil Society Organisations, Religious Organisations and leaders, the media, and the international community.

The Bomas NCC begun with tremendous political goodwill from the people of Kenya, delegates, observers and other stakeholders. However, by the end of the process, the delegates were totally polarised and divided along political and ethnic lines while the people of Kenya were completely disenfranchised and fed up with the lack of agreement among the political elite on so-called contentious issues. The current government was elected on the promise of a new Constitution and in fact it was the basis upon which many Kenyans voted for it and therefore, as it was expected, the NCC in the first half of Every person in Kenya expected and knew that the process we had settled on was an all-inclusive people-driven, and so the stage was set in that understanding.

In such a process, there are two key issues relating to the politics of constitution making which require to be addressed. The issue of legitimacy and credibility of the process; and, 2. The issue of inclusiveness, which remains an issue even if the issues of legitimacy and credibility are addressed. It is about a process that is sensitive enough to include even the minority groups, views and opinions.

Therefore the political process question here is, did the process satisfy the standards of legitimacy, credibility and inclusiveness? Legitimacy entails the full participation and involvement of the people of Kenya in the review process to give it the authority and justification of the claim that it was a people-led 18 Section 28B of the Constitution of Kenya Amendment Act, Legitimacy is derived from the people not from documents, not even from the Constitution itself.

There cannot be legitimacy in such a process without the direct involvement of the people, so long as that is the chosen path. March — The parties agree on the principles for a constitutional review process, and Parliament establishes a Committee of Experts on Constitutional Reform to gather views from the public, deliberate on contentious issues and come up with a draft of the new constitution. A Constitution of Kenya Review Act governs the review process, and enters into force in December The Committee held extensive public consultations and received many dozens of submissions.

November — The harmonised draft constitution written and proposed by the Committee of Experts was released on 17 November and had the following highlights: [2] Transfer of executive authority from the President to the Prime Minister position who will be the Head of Government.

President will be the Head of State and maintain a more ceremonial role. Half of the ministers in cabinet can be nominated from non-MPs. The total number of MPs will be increased from to An upper house, a Senate, will be introduced to represent the regions — the total number of Senators will be Devolution to the provincial level — current 8 provinces will be now referred to as regions.

Nairobi Province will become a region and have a popularly elected Mayor as opposed to having the city councillors elect the Mayor.All questions were to be determined by consensus, in the absence of which they would be determined by a simple majority of the members present and voting. The review process has continued to lack leadership because the government cannot seriously provide such leadership, yet the opposition has failed to seize that opportunity to provide leadership.

He argues that the process of writing and agreeing to a constitution is beneficial to the whole country because it is such a constitution that will guarantee stability, peace and prosperity for all. Thus, the principle review organ still had discretion to look further and yonder. Moi-era and post-Moi usage[ edit ] At one point during his presidency, Daniel arap Moi is alleged to have favoured the idea of majimbo for the regions. However the Petitioners in their Petition have not set out any case against the 1st Respondent save to say he is the Principal Legal Advisor to the Government within the meaning of Section 26 of the Constitution of Kenya.

The author takes responsibility for the views and any mistakes therein. On 5th July , the Petitioners filed a Notice of Motion application dated the same day under certificate of urgency. It is about a process that is sensitive enough to include even the minority groups, views and opinions. The civic education which may or may not have been adequate and collection of the views and wishes of Kenyans may not be a scientific process to the social scientist, but it was a process to involve Kenyans and listen to what they wanted included in their constitution.

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