Kenya Gets a New Constitution

originally posted Oct 13, 2010 9:22 PM by Project Africa   [ updated Oct 13, 2010 9:30 PM ]

 By: Jared Akama Ondieki, Executive Director, Center for Partnership and Civic Engagement, Kenya.

On August 27, 2010,The President of Kenya, Mwai Kibaki, signed into law a new constitution which resembles a USA – style system of checks and balances. The promulgation of the new constitution was considered as the most significant political event since Independence. Kenya received its independence from the British colonial rule in 1963.

Kenya’s new constitution is part of the reforms that the President and the Prime Minister Raila Odinga committed themselves to after signing a 50-50 power sharing deal in February 2008.This was the period when Kenya experienced post election violence following a disputed Presidential election vote. It is this deal that ended the violence where over 1500 people where killed and over 350,000 people were displaced from their homes.

Kenyans went into the referendum on the 4th of August to decide whether they liked the new constitution or not, with an overwhelming majority of Kenyan Voters endorsing the new constitution. Kibaki’s Signature formally marks the end of a decades-long struggle to cut the massive powers of the Presidency. The government and parliament now must implement the ambitious document, a process expected to take up to five years. The document requires among other things, the formation of Supreme Court and senate. It also demands that the country’s Judiciary be vetted to rid of corrupt or incompetent Judges.

Among the key benefits the new constitution brings is the bill of rights which protects the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalized communities, and members of particular ethic, religious and cultural communities.

The new constitution has stirred controversy as it states that, “Abortion is not permitted unless, in the opinion of trained health Professional, there is need for emergency treatment, or the life of the mother is in danger, or if permitted by any other written law’’. This new clause has elicited a lot of debate during the campaign amongst those who are both for and against the new constitution. The Pro-life, i.e the church, perceives that this clause was going to open room for legalizing abortion in Kenya.

The bill of rights also stipulates that one has freedom from torture and cruelty, inhuman or degrading treatment of punishment. Kenya has a history of political torture as well as people being tortured or killed at the hands of the police. The bill of rights now clearly outlines the rights of persons detained, held in custody or imprisoned. Allowing Dual Citizenship in the new constitution came as a reprieve to Kenyans living in the Diaspora.

Land issues are a hot topic in Kenya and in many cases we have witnessed tribal clashes due to disputes over property. The new constitution outlines legislation on land and the establishment of   land commission empowered by the constitution to protect, conserve, and provide access to all public land.

The Electoral system mandates have been outlined in the constitution so as to curb any mal-practices in the

electoral process and to many this is seen as a clear way forward to help in Kenyans electing good leaders to represent them. It will enhance free and fair election free from violence, intimidation, improper influence or corruption. The President is no longer in charge of election dates for they are clear in the new constitution.

The introduction of County government where for the first time, Kenyans will elect Senators and a governor is a clear indication that the government resources are going to be distributed equally across the country, unlike before where the President determined where the resources went depending on the royalty he receives from a region. The government will allocate 15% of its budget to the established 47 county government for development agendas.

To ensure equal representation, youth and women have been allocated special seats in the National Assembly. Not to mention that the new constitution empowers Kenyans to re-call their leaders if they do not deliver their promises or if they serve inadequately.

These are just a few reasons which led to Kenyans overwhelming vote in favor of the new constitution in the referendum and therefore saying goodbye to the old constitution inherited from the British colonial rulers.

The Promulgation festivals where not without drama. The arrival of Sudanese Omar-al Bashir, who faces charges of genocide and crimes against humanity in connection with violence in Darfur, has caused a lot of uproar. The Human rights groups had urged the Kenyan government to bar Al.Bashir from the festivals but Kenya’s foreign minister defended Al-Bashir’s presence.

The President of US, Barack Obama welcomed the new constitution as an important step and a good example for all Africa and the world, however he expressed his disappointment for Kenya not honoring its commitments to ICC and the International Justice by not arresting Al-Bashir.

Kenya has now begun the journey of transition to the new constitution. While many Provisions in the document take immediate effect, changes to the country’s governing structure will be phased in gradually, and the new set of laws is not expected to be fully operational until after the Presidential elections in 2012.

By: Jared Akama Ondieki

Executive Director,

Center for Partnership and Civic Engagement.



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