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NO! "What father among you, if his son asks for a fish, would hand him a snake? Or if he asked for an egg, hand him a scorpion?” Luke 11:11-12 1 LA! ©

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Presentation on theme: "NO! "What father among you, if his son asks for a fish, would hand him a snake? Or if he asked for an egg, hand him a scorpion?” Luke 11:11-12 1 LA! ©"— Presentation transcript:

1 NO! "What father among you, if his son asks for a fish, would hand him a snake? Or if he asked for an egg, hand him a scorpion?” Luke 11:11-12 1 LA! © O 3

2 Contents – Why I will Vote No! About a Good Constitution - 5 Why a New Constitution? - 6 Loss of Parliamentary oversight over Public Borrowing – 9 Loss of the Ethics and Anti-Corruption Commission – 12 Loss of Parliamentary Ratification of Treaties – 15 Sneaking of Dangerous Clauses into the PCK – 21 Loss of an Independent Judiciary – 25 Impurities in System of Government – 20 Impurities in Operations of Parliament – 34 A Weak Senate – 36 Elevation of Islam over other religions – 38 Canonisation of Rogue Affirmative Action. – 47 Violation of individual liberty and ideals of nation building - 49 2 © O 3

3 Contents – Why I will Vote No! Legalising Abortion - 55 Legalising Homosexuality - 61 Punitive Costs of Bloated Bureaucracy - 70 Poor Representation and Entrenching Tribalism - 74 Land: Destabilisation through Reckless Reforms - 80 State Security Concerns - 90 Glaring Errors - 94 Hostility to future amendments or replacement - 98 Youth Given Raw Deal - 106 Protection of Right to Property - 107 Equitable Sharing of National Revenue – 108 Problems with Representation - 109 Imposition of “any other written law” - 111 Dangerous Marriage Laws - 112 3 © O 3

4 Contents – Why I will Vote No! License for Pornography - 114 Are Uniforms Banned - 115 Nonsense about Currency - 116 Dismissal of Parliament by the Chief Justice - 118 Children's Rights without Parental Rights - 120 Detention without Trial? - 122 Burden of Public Debt on Future Generations - 123 Potential for abusing the Nolle Prosequi - 124 Imperial Presidency – 125 Attorney General for Life - 128 There’s no Oath of Office for the PM and Deputies – 129 No full protection of the right to life! - 130 No complete freedom of conscience, religion and belief? - 131 Conclusion - 132 4 © O 3

5 About a Good Constitution A good Constitution should help us create a sovereign Kenyan State that can compete for socio-political, economic, scientific, technological and military superiority by building a citizen- focused, integrated and progress-oriented Kenyan nation that is an aggregate of free and prosperous individuals who, in heart and mind, are loyal, first and foremost, to the State not to other identities. A good Constitution must be clear and precise on the fundamental rights and freedoms of citizens so that no provisions have implied hidden meanings that can be invoked to distort the social order through immorality and the abuse of freedoms and rights. 5 © O 3

6 Why a New Constitution? Kenya was founded and governed as a private company called the Imperial British East Africa Company (IBEAC) which administered British East Africa, the forerunner of the East Africa Protectorate, which was later renamed Kenya. IBEAC laid the foundation of oppression and exploitation that turned all Africans from being citizens (i.e. people who have both rights and duties) into subjects (i.e. people who only have duties but no rights). Kenya was conceived as a private estate, not a State, and has ever since been managed to benefit the privileged few who control both political power and property. 6 © O 3

7 Why a New Constitution? The Independence struggle was basically to change Kenya from being an Estate into a State – a Republic. A State would restore all rights to Africans. Unfortunately, this was lost because the colonial establishment, which included home guards, outmaneuvered the nationalists and established an order that allowed blacks to take over political power, but ensured that the country remained a private estate and an imperialist machine of oppression and exploitation. The current clamour for a new Constitution is a continuation of that struggle to turn Kenya from being a private Estate into a democratic State. 7 © O 3

8 Why a New Constitution? The same forces that denied us change at independence have again hijacked the struggle to perpetuate their stranglehold so they can continue oppressing and exploiting us. Further, they have introduced dangerous concepts that will make us poorer than we already are. We will lose our sovereignty, values and identity. We reject the Proposed Constitution of Kenya because it is a repeat of the 1963 betrayal! VOTE NO! 8 © O 3

9 Loss of Parliamentary oversight over Public Debts  Records from the Bomas Constitutional Conference show that Kenyans have long desired to control public borrowing because it is the main facility through which grand corruption is perpetuated.  Today, the spiralling public debt, which is largely driven by mega corruption, hence, the absence of corresponding improvement in the lives of Kenyans, stands at 1.3 trillion shillings, meaning every Kenyan child owes Ksh. 30,000/= at birth.  We spend an average of 25% of the annual National Budget to service the public debt, compared to 2% on agriculture and 3% on Education. 9 © O 3

10 Loss of Parliamentary oversight over Public Debts  That is why, in Article 245(2) of the Bomas Draft, Article 226(2) of the 2005 Wako Draft, and Article 253(2) of the Harmonised Draft, Kenyans had clearly demanded that: “The national government shall not, on behalf of itself or any other public institution, authority or person, borrow money, guarantee a loan or receive a grant unless the terms and conditions of the transaction have been laid before and approved by a resolution of each House of Parliament.” The illegitimate removal of mandatory Parliamentary oversight on borrowing by the national government in Article 211(1) of the PCK will open floodgates to the acquisition of odious debts by the Executive. 10 © O 3

11 Loss of Parliamentary oversight over Public Debts Without doubt, the CoE did not delete this very important provision to benefit Kenyans. It was done to allow the continued theft of our very limited resources. And that will deny us the development we need to break free from mass poverty. We reject the Proposed Constitution of Kenya because, by allowing looters to continue pillaging and plundering our ever diminishing resources, it will make us much more poorer than we already are! VOTE NO! 11 © O 3

12 Loss of the Ethics and Anti- Corruption Commission Corruption has been the main cause of our underdevelopment. It is the convenient vehicle through which our resources are plundered as ruthlessly as it was done in colonial times. Kenyans wanted to eliminate corruption by creating a powerful constitutional institution that could be used to fight the social evil, especially among the rich and mighty whom the current commission has been unable to nail. The Bomas Draft (Article 99), 2005 Wako Draft (Article 99) and the Harmonised Draft (Article 99), established a robust anticorruption organ, with the power to hold anybody accountable for their actions. 12 © O 3

13 Loss of the Ethics and Anti- Corruption Commission The Committee of Experts (CoE) removed the Ethics and Anti- Corruption Commission in Article 79 of the Proposed Constitution of Kenya (PCK). The removal is a major blow against the war on the endemic plunder of public resources. If we leave it to Parliament, our MPs will most likely establish a very weak organ that cannot hold them accountable. Further, if the Anti-Corruption Commission is established as an Act of Parliament, it will lack the constitutional teeth it requires to fight grand corruption which is usually perpetuated by the rich and the mighty. 13 © O 3

14 Loss of the Ethics and Anti- Corruption Commission Under an Act of Parliament, the Commissioners will not have the security of tenure they need to tackle the corrupt, especially if they are well connected businessmen or politicians. The Commissioners will live in perpetual fear of politicians since the Commission, if created by an Act of Parliament, can be disbanded by a simple majority in Parliament. To protect their jobs, anticorruption Commissioners will avoid rubbing the rich and the mighty the wrong way. We reject the Proposed Constitution of Kenya because it has no effective mechanisms for fighting corruption! VOTE NO! 14 © O 3

15 Loss of Parliamentary Ratification of Treaties Because of the globalisation of the world and the push by Western countries for the adoption and domestication of International treaties and conventions based on their values and interests, Kenyans sought to move away from the current system of ratifying treaties through the Executive without the representation of the people. As a global player, Kenya has to ratify some international conventions and treaties. However, if ratification is without representation which, ideally, is through a legislative process, the people have no way of objecting wholly or in part to any treaty or convention they do not like. 15 © O 3

16 Loss of Parliamentary Ratification of Treaties Executive ratification makes it easier to impose on Kenyans laws promoting vices like homosexuality, lesbianism, and abortion (or the so-called reproductive health). For example, the Hague Marriage Convention recognizes Gay rights, and The Maputo Protocol recognizes the right to legal abortion as a reproductive health right. Reproductive health rights include the right to abortion on demand. If we ratify any international treaty or convention that allows homosexuality, lesbianism, same-sex marriages, or abortion, Kenya will have legalised those vices. The same applies to treaties on international trade and grey areas like terrorism. 16 © O 3

17 Loss of Parliamentary Ratification of Treaties In the USA only the Senate has the power to ratify international treaties and conventions. In many countries ratification requires the approval of Parliament, meaning the people are represented. In complete disregard of their mandate, in a daring display of impunity, and in total betrayal of the trust Kenyans vested in them, the CoE disregarded the demand Kenyans had made since Bomas. Kenyans rejected the ratification of international treaties and conventions through Executive fiat without representation, but the CoE took it upon themselves to deny us this very important aspect of our sovereignty. 17 © O 3

18 Loss of Parliamentary Ratification of Treaties Kenyans wanted ratification with representation through Parliament. The demand for parliamentary approval and ratification of international treaties and conventions is provided for in the following documents as follows:  The Bomas Draft of March 23, 2004 – Article 121(2)(g)  The 2005 Wako Draft of August 22, 2005 - Article 115(2)(g);  The Harmonized Draft Constitution of November 17, 2009 - Article 124(2)(g);  The Revised Harmonized Draft Constitution of January 8, 2010 - Article 119(c);  The PSC Draft Constitution of January 29, 2010 - Article 88(c).  The PCK of February 23, 2010, does not have this provision in Articles 94, 95 & 96 that deal with the role of Parliament. 18 © O 3

19 Loss of Parliamentary Ratification of Treaties This means that, effectively, Parliament has no say over international treaties and conventions which are ratified by the Executive. The very important parliamentary duty is taken away against the will of the Kenyan people who wanted ratification with representation, especially at this time when the Western world is trying to force us to ratify hostile trade treaties like the European Union’s EPA treaty that will destroy our economies. Why did the CoE remove parliamentary approval? Was it to make ratification easier? Who benefits? Who are the losers? The CoE surrendered Parliament’s legislative role to external forces, and effectively sold our birthright to foreigners. 19 © O 3

20 Loss of Parliamentary Ratification of Treaties The ratification of international treaties and conventions without the approval of Parliament is dangerous since foreign laws that promote “rights” recognized by others but not embraced by Kenyans can easily become part of Kenyan Law through the backdoor. We fought long and hard to win the freedom we enjoy today and we will not allow anybody to recolonise us. We reject the Proposed Constitution of Kenya because it effectively undermines the sovereignty of the Republic and seeks to recolonise us through international treaties and conventions that are not vetted by our Parliament! VOTE NO! 20 © O 3

21 The Sneaking of Dangerous Provisions into the PCK As the CoE removed parliamentary oversight over the ratification of international treaties and conventions, they parachuted the following dangerous clauses into the PCK at the eleventh hour:  2(5) The general rules of international law shall form part of the law of Kenya.  2(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this constitution. The protection of the rights conferred under international treaties/conventions is provided for by the PCK under Article 59(g) where the Kenya National Human Rights and Equality Commission is mandated to ensure Government compliance with the treaties. 21 © O 3

22 The Sneaking of Dangerous Provisions into the PCK Clause 21(4) obligates the State to domesticate international treaties on human rights irrespective of whether or not they have been clandestinely introduced into the country. Parliament, which is denied its rightful role to oversee the ratification of international treaties and conventions, is compelled to give the force of law to an illegality. It is of utmost importance that the ratification of international treaties & conventions must be with Parliamentary supervision and approval. This is the only way we can guard against committing the country to harmful trade treaties, and putting Kenyans under laws that go against our values on things like abortion, terrorism, homosexuality, lesbianism, same sex marriages, and general secularism. 22 © O 3

23 The Sneaking of Dangerous Provisions into the PCK Clauses 30(6)(7)(8) in the Bomas Draft, and 31(5)(6) in the 2005 Wako Draft, 30(7)(8)(9) in the Harmonised Draft, 26(5)(6)(7) in the Revised Harmonised Draft were deleted yet they dealt with domestication, parliamentary approval and oversight over the ratification and implementation of international treaties relating to human rights. As is the case in many democratic countries, including very advanced ones, where the ratification process involves Parliamentary approval, the Proposed Constitution of Kenya must not contain ratification of international treaties/conventions without representation. If Kenyans are sovereign, it follows that all laws in force in Kenya must emanate from the people directly (referendum) or through their representatives in Parliament. 23 © O 3

24 The Sneaking of Dangerous Provisions into the PCK It is unacceptable to provide a situation where ratification without representation automatically binds the people! Americans and other free nations refuse to surrender their legislative role to the international community. Do we want to surrender our legislative role in respect to international treaties? HAPANA! Note further that Article 27(8) was clandestinely moved from national values and sneaked into the Bill of Rights by the CoE outside their mandate. We reject the Proposed Constitution of Kenya because it contains the dangerous provisions that were sneaked in to defraud Kenyans! VOTE NO! 24 © O 3

25 Loss of an Independent Judiciary Kenyans have for a very long time fought to get a people appointed independent Judiciary that would secure their rights by ensuring the rule of law. One of the key obstacles to the rule of law in Kenya is because the Judiciary is not independent. The lack of Independence in the Judiciary is mainly caused by the way Judges are appointed, allowing the Executive to pack our courts with gatekeepers. It is also because we do not have an independent Judiciary that the war against corruption and other social ills has been lost. Kenyans have craved an independent Judiciary, where the appointment of judges is strictly on merit through a transparent process that involves vetting and approval by Parliament. 25 © O 3

26 Loss of an Independent Judiciary Article 193 of the Bomas Draft, Article 190 of the 2005 Wako Draft and Article 205(1) of the Harmonised Draft, and 157(1) of the PSC Draft established an independent Judiciary by requiring that all judges must be cleared by Parliament. But in Article 166(a & b) of the PCK only the Chief Justice and the Deputy Chief Justice will be vetted by Parliament. All the other judges will be directly appointed by the President, leaving the door wide open for the packing of the courts with pro-establishment gatekeepers as is the case today. The Judicial Service Commission represents the Executive not the people – Only Parliament represents the people! Worse, the Judicial Service Commission simply plays an advisory role; it is the President who performs the substantive role of selection and appointment. 26 © O 3

27 Loss of an Independent Judiciary Hence, Judges are appointed by the President in an opaque manner that cannot secure the political neutrality required of independent judges. Clause 132(2)(f) (read with the definition of 'State Office' in 260(e) and the vetting of existing judges in No.23 of the Sixth Schedule) does not cure the long-term damage of 166(1)(b) read with 166(1)(a)]. Far from what is expected, the vetting of the sitting judges in No.23 of the Sixth Schedule will simply compromise the Judiciary further, because any serving judges dismissed by MPs will be replaced by the President without being vetted by Parliament. This gives room to the new power brokers to pack the courts with their own gatekeepers against the public interest. 27 © O 3

28 Loss of an Independent Judiciary The judiciary will inevitably continue to be compromised. The Judiciary in the PCK is not independent by any yardstick. The authoritarian Chief Justice created in the PCK has powers to transfer judicial officers, allocate duties, and even court files, merely at personal whim, without reference to any rules or system. The huge powers in Articles 161(2), 163(1a), 165(4), and 171(2a) are a loophole to facilitate the use of gatekeeper judges by a politically compromised Chief Justice. Though it establishes the Kadhis courts to favour Islam over other religions, the PCK does not establish superior courts to hear important matters of the environment, land, and employment, leaving them to be established as junior courts. 28 © O 3

29 Loss of an Independent Judiciary Articles 162(2) and 165(5b) violate judicial independence by allowing Parliament to create the courts, setting the stage for conflict with the High Court, in these areas. The political role of the Supreme Court in 163(6) and 165(4d), to advice the Executive is dangerous as it encourages judicial activism. Such work belongs to the Attorney-General, allows the elected Executive to blame its failures on the unelected Judiciary, and will conflict with the jurisdiction of the High Court to interpret the Constitution. 160(4) means judges are exempt from paying income tax. We reject the Proposed Constitution of Kenya because it denies us an Independent Judiciary! VOTE NO! 29 © O 3

30 Impurities in System of Government By allowing the President to convene Parliament in Article 126(2), the Proposed Constitution of Kenya injures the Separation of Powers between the Executive and the Legislature that must obtain if we really have chosen the presidential system. The same article does not provide for the conduct of business at this first sitting, and it also does not specify how the new Speakers for the two Houses are to be elected. 127(2)(c) (i-ii) assumes a parliamentary system of government where parties not individuals are elected to power. Under the presidential system, parties don’t form governments; individuals are sponsored by parties. 30 © O 3

31 Impurities in System of Government Even an independent candidate can become the President. Article 89(9) refers to the “dissolution of Parliament” in the Proposed Constitution of Kenya. Under the chosen Presidential System there will be no dissolution since parliamentary terms are fixed and will expire on the date of the next general election as provided for in Article 102(1). A key feature of the Presidential System is the fixed-term Parliament. Article 89(9) technically means that new constituencies won’t come into effect until the 2017 elections because the term of the House will expire simultaneously as a new Parliament is elected. 31 © O 3

32 Impurities in System of Government Doctrinal impurities concerning the Presidential System are also contained in clauses 261 (5) to (9) & 132(1)(a) that assume Parliament can be dissolved, or that the President has constitutional power over the legislature The Powers given the Chief Justice in 261(5,6,7) to compel the President to dissolve Parliament are out of place. First of all, we are not in a Parliamentary System where the President can dissolve Parliament to allow a snap election. Presidential systems have a fixed term Parliament. Secondly, under no circumstances should the principle of the Separation of Powers be breached. 32 © O 3

33 Impurities in System of Government Thirdly, MPs are not elected to operationalise a constitution but to represent the people, so there are no grounds for them losing their seats in the prescribed manner. If the desire is to operationalise the Proposed Constitution then, may be, freezing their salaries could be in order, but not overruling the people’s will by declaring their seats vacant. Even then it is still debatable whether any arm of Government can have such a grip on another arm and we still claim to have a democratic government. We reject the Proposed Constitution of Kenya because it mixes and fudges systems of government! VOTE NO! 33 © O 3

34 Impurities in operations of Parliament What are Acts of Parliament, or Legislation by Parliament? Since PARLIAMENT is defined as the NATIONAL ASSEMBLY + the SENATE, but bills are not required to pass in both Houses, what does the PCK mean when it states that Parliament will legislate or refers to an ‘Act of Parliament’? An Act of Parliament must refer to legislation that has passed through both the National Assembly and the Senate. But the Senate has been denied legislative power in matters that do not affect counties (Article 96). 34 © O 3

35 Impurities in operations of Parliament There are many references to Acts of Parliament or to legislation by Parliament yet the Constitution does not require both Houses to pass most bills. How will the two Houses resolve this anomaly? This problem occurs across the entire body of the Proposed Constitution of Kenya. We reject the Proposed Constitution of Kenya because it mixes and fudges the operations of Parliament! VOTE NO! 35 © O 3

36 A Weak Senate The Senate has been created as the Lower House by being given a very limited legislative role (Article 96). According to the established norm and best international practise, the Senate should be the Upper House. The Senate should be superior to and more deliberative than the National Assembly. It should be a very sober house that gives the second and professional view to ensure all laws serve the national interest. The Senate should allow for a more collegial and less partisan atmosphere than the National Assembly. Like in the USA, the Senate should have several exclusive powers not granted to the National Assembly, including consenting to treaties and confirmation of State appointments. 36 © O 3

37 A Weak Senate Being a more prestigious body than the National Assembly, the threshold for being a senator, including the allowed lower age limit, must be higher than that of the National Assembly. There should be no considerations of affirmative action in the Senate because it represents regions not the people. The Deputy President should be an ex-officio member and the Chair to create the critical link between Parliament and the Presidency. Since there are no regional governments to put proper checks on the powerful presidency, we need a very strong Senate. We reject the Proposed Constitution of Kenya because it creates a toothless Senate! VOTE NO! 37 © O 3

38 The Elevation of Islam over other Religions Kenyans have desired that all religions should be treated equally in the Constitution and must be clearly distinct from the State. The Constitution must state categorically that all religions are equal and separate from the State and must be treated equally. Preferential treatment given any religion by the State will be resented by others and lead to unnecessary religious strife in society. The fact that a group of Kenyans went to court in 2005 to demand an end to the unfair elevation of Islam in the current Constitution shows the gravity of the issue. 38 © O 3

39 The Elevation of Islam over other Religions In May 2010, the Constitutional Court ruled that the basis of including the Kadhis courts in the Constitution of Kenya was faulty. The 1963 undertaking to protect the former 10-mile strip subjects of the Sultan, especially their entitlement to Muslim Law relating to personal status, marriage, divorce, or inheritance, in proceedings in which all the parties are Muslims, should have been done within the existing constitutional provisions of Section 82(4)(b), giving to one the choice with respect to the administration of justice in matters of personal law. 39 © O 3

40 The Elevation of Islam over other Religions Being a product of affirmative action based on Islamic identity, and not on the interest of Muslims to make preferences in personal law, which is effectively provided for in Section 82(4)(b), Section 66 of the current Constitution unacceptably enshrines discrimination by favouring Muslims with the Kadhis courts which, to make matters worse, are optional not mandatory for Muslims. Under the Limitation of rights and fundamental freedoms in the PCK, Article 24(4) contradicts Article 2(4) that affirms the supremacy of the Constitution. Article 24(4) makes Muslim Law superior to the Bill of Rights. 40 © O 3

41 The Elevation of Islam over other Religions Article 24(4) effectively elevates Islam, through the Kadhis Courts, above the Kenyan State by allowing it to override the Bill of Rights guaranteed to all Kenyans. The supremacy of religion over both the State and citizens contravenes the tenets of democracy that secure individual liberties. In effect, Article 24(4) means Muslims do not have the full protection of the Bill of rights. This is of special concern to Muslim women, who under Islam are not considered to be equal to men. 41 © O 3

42 The Elevation of Islam over other Religions This makes Muslims (especially women) second-class citizens who don’t enjoy the rights and fundamental freedoms provided in the Constitution. Article 24(4) contradicts Articles 27(4), 27(5) and 32(3) of the same Constitution. Article 24(4) contradicts the objects and provisions of the Constitution of Kenya Review Act, especially Sections 4 and 6. Article 45(3) will create problems for people who marry more than one wife under customary law, yet the same will not be a problem for polygamous Muslims since they have been given an express exemption from the observance of such laws on equality under Article 24(4). 42 © O 3

43 The Elevation of Islam over other Religions Article170 (2) contradicts Article 27 (4&5). The fact that the phrase Muslim (Muslim law, Muslim religion, Muslim sects) is mentioned 4 times while no other religion is mentioned has covert implications and contradicts Article 8. The creation of Kadhis courts and the special status accorded to Islam in the Constitution has the effect of making Islam the de facto State Religion in Kenya in contravention of Article 8 of the Proposed Constitution of Kenya, and that also creates inequality among religions. Failure to state categorically that the State will treat all religions equally, sets the opening for the unfair treatment of others. 43 © O 3

44 The Elevation of Islam over other Religions It is important to note that in Article 9 of the Bomas Draft, Article 10 of the 2005 Wako Draft, Article 10, of the Harmonised Draft, and Article 10 of the Revised Harmonised Draft (on “State and religion”) states that: (1) State and religion shall be separate. (2) There shall be no State religion. (3) The State shall treat all religions equally. The Committee of Experts deleted (1) and (3) to allow for the fusing of State and Religion, effectively allowing for the creation of Islam as a state religion without saying so. This effectively discriminates against other religions. 44 © O 3

45 The Elevation of Islam over other Religions Article 32(3) contradicts the provisions of Article 32(1), 32(2), 32(4) and other fundamental freedoms, and interferes with the rights of faith communities to establish and run private institutions dedicated to the promotion of their worldview. Arguing on the premise that they are a minority group (Article 56) whose rights need to be enacted in the constitution also screams of inequality as there are other minority religions that haven’t been directly mentioned save by implication only. Even among the Christian fraternity there are various denominations whose rights also need to be addressed. 45 © O 3

46 The Elevation of Islam over other Religions Further, Article 170(2) contradicts 32(3) in a very grave way given that the exclusion on religious grounds refers to Kadhis courts which are a public institution. To make matters worse, the words “and submit to the jurisdiction of the Kadhi’s courts” in sub-Article 170(5) confirm that the said courts are not necessary for Muslims as submission to them is discretionary, and are therefore a superfluous luxury the State can ill afford to burden the Kenyan taxpayers with. We reject the Proposed Constitution of Kenya because it makes Islam the official State Religion of Kenya! VOTE NO! 46 © O 3

47 Canonisation of Rogue Affirmative Action The Proposed Constitution of Kenya seeks to entrench such discrimination beyond just the Kadhis Courts by making identity based affirmative action part of our national DNA. The reckless entrenchment of affirmative action in the proposed Constitution has diminished, if not, diseased it. Writing identity distinctions into law is corrosive and illogical in a society that presumes the equality of all citizens. Conceptually, any kind of affirmative action cannot be permanent, and it belongs to political party manifestoes and the like. It is not a constitutive principle to be canonised in our Constitution. There is no constitutional right to be favoured; the constitutional right is to protection from discrimination. 47 © O 3

48 Canonisation of Rogue Affirmative Action Preference programs cannot be constitutionally justified in a democracy, whose key tenet is creating equal opportunity for all. Why for example would a rich woman get preferential treatment in job placement over a poor man who is the sole breadwinner for his family, feeding his even poorer wife and children? Clearly, the solution does not lie in reverse discrimination but in expanding equal opportunity for all. We should strive to create equality by lifting up those who are down, not by cutting down those who are up. Creating quotas for groups in anything does not expand the opportunities available to all in society; it only discriminates against those working hard. 48 © O 3

49 Canonisation of Rogue Affirmative Action Affirmative action is not a solution of any kind, not even a temporary fix, to our problem of mass poverty and general social injustice. Let’s target poverty, not identity. We must summon up the courage to do what is right for posterity and not what is merely popular or convenient for the moment. The only answer to inequality is to provide a better educational system for the poor, and to embrace developmental economic policies that will create new wealth for all, and expand the economy to lift the masses out of poverty. Article 27(8) was sneaked in by the CoE at the last minute, eroding the freedom of association Kenyans enjoy.. 49 © O 3

50 Canonisation of Rogue Affirmative Action But where will the money come from if our limited resources will be wasted creating bloated elective and appointive bodies in the name of affirmative action for women and the youth? To make matters worse, the bloated and costly bureaucracy is not designed for service delivery and to fight graft. Such a bureaucracy will deplete the resources we need to lift the masses out of poverty. We reject the Proposed Constitution of Kenya because it converts Affirmative Action, a matter of political policy, into a major constitutional principle of reverse discrimination. VOTE NO! 50 © O 3

51 Violation of individual liberty and ideals of nation building Will the proposed constitution advance individual liberties and freedoms, national cohesion and development, or will it restrict them? The Proposed Constitution will constrain them because it promotes group rights over individual rights. It empowers special interest groups based on factors such ethnicity, religion, gender, and disability. This means Kenyans are not equal, hence, it undermines the ideals of nation building and state sovereignty which are founded on the equality of all before the law. 51 © O 3

52 Violation of individual liberty and ideals of nation building National economic, political and social development is undermined by fostering differences rather than integration, tradition rather than progress. National development is the economic, political and social organization of a national polity based on respect for the individual. National underdevelopment is the organization of a national polity based on respect for special economic, political and social interests. 52 © O 3

53 Violation of individual liberty and ideals of nation building By promoting policies and practices designed to build an ethnically, racially, regionally, culturally and religiously diverse Kenyan State along the fault lines of our differences, the Proposed Constitution of Kenya seeks to reinforce dissimilarity and, therefore, national decay, rather than fostering integration and the resultant national progress. 53 © O 3

54 Violation of individual liberty and ideals of nation building A good Constitution should help us create a sovereign Kenyan State that can compete for socio-political, economic, scientific, technological and military superiority by building a citizen- focused, integrated and progress-oriented Kenyan nation that is an aggregate of free and prosperous individuals who, in heart and mind, are loyal, first and foremost, to the State not to other identities. We reject the Proposed Constitution of Kenya because it undermines individual liberties and the integrity of the Kenyan Nation. VOTE NO! 54 © O 3

55 Legalising Abortion Article 34(3) of the Bomas Draft stated: “Abortion shall not be permitted unless, in the opinion of a registered medical practitioner, the life of the mother is in danger.” Article 35(3) of the 2005 Wako Draft stated: “Abortion is not permitted except as may be provided for by an Act of Parliament.” But Article 26(4) of the PCK states: “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.” 55 © O 3

56 Legalising Abortion Article 26(4) lacks the legal safeguards required to balance the rights of this generation and those of generations to come. Article 43(1), on Economic and social rights, states that, (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. The World Health Organization defines health as ‘the state of complete Physical, Mental and Social well-being not merely the absence of disease or infirmity. A law that permits abortion, whether expressly or indirectly through exception, must be carefully drafted and must be so well engineered as to ensure medics are not given a legal licence to kill the next generation. 56 © O 3

57 Legalising Abortion Effectively, Article 26(4), which states that abortion will be permitted where the life or health of mother is in danger, or by any other written law, allows abortion on demand. This legalises abortion on demand so that abortion can be legally procured for physical, mental and social reasons. It does not provide for the termination of pregnancy only to save the life of a mother. In Article 43 (1) the bill of rights includes reproductive health care as a basic human right. Why the emphasis on reproductive health care, as something that is separate from “health care services”? 57 © O 3

58 Legalising Abortion It is important to note that “Reproductive healthcare” is a common euphemism for access to abortion on demand. On April 2, 2010, Hilary Clinton chided conservative Canadian Prime Minister Stephen Harper when he specifically refused to include abortion as a reproductive health topic, preferring to focus on actual healthcare. Clinton responded:“I’m not going to speak for what Canada decides, but I will say that I’ve worked in this area for many years. And if we’re talking about maternal health, you cannot have maternal health without reproductive health. And reproductive health includes contraception and family planning and access to legal, safe abortion.” 58 © O 3

59 Legalising Abortion There you have it. Reproductive health means abortion. Clinton has made it clear that every document that includes the words “reproductive health services” is a document promoting abortion. Since the ratification of international treaties and conventions will be without the approval of our Parliament, there is a very high risk of foreign laws that promote “rights” recognized by others but not embraced by Kenyans becoming part of Kenyan Law through the backdoor. The morality of abortion is not a religious belief, any more than the morality of slavery, apartheid, rape, murder, larceny or arson is a religious belief. 59 © O 3

60 Legalising Abortion These are norms of the natural law of mankind and can be legislated even in a society that has no religion. We must stand for life and focus on policies that save rather than take lives. We reject the Proposed Constitution of Kenya because it does not offer adequate protection to unborn children whose opportunity for life is threatened by non medical factors in society. VOTE NO! 60 © O 3

61 Legalising Homosexuality Unlike the earlier drafts, the Proposed Constitution of Kenya does not prohibit same sex unions or marriages to the extent that it does not define marriage. Article 41(3) of the Bomas Draft and 42(3) of the 2005 Wako Draft stated clearly that: “A person shall not marry another person of the same sex.” This prohibition was removed by the Committee of Experts. A glance at Article 45(2) suggests that same sex marriages are not allowed. But it just confers the right of opposite sexes to marry, but does not bar the so-called same sex marriage. 61 © O 3

62 Legalising Homosexuality There is also no definition of marriage. Article 19 (3)(b) states that the rights and fundamental freedoms in the bill of rights ”do not exclude other rights and freedoms not in the Bill of Rights, but recognized or conferred by law, except to the extent that they are inconsistent with this chapter.” That means that other RIGHTS can be declared or acknowledged. In article 20(3) the courts are empowered to develop the law to the extent that it does not give effect to a right or fundamental freedom. 62 © O 3

63 Legalising Homosexuality Same article states that in interpreting the Bill of Rights, a court or tribunal or other authority shall promote the values that underlie an open and democratic society. Which values are these? Homosexuality? Article 56 mandates the states to put in place affirmative action programs to ensure that minorities and marginalized groups develop their cultural values, language and PRACTICES. Minority groups are not defined. However, marginalized group is defined in article 260 to mean a group of people who, because of laws and practices before, on, or after the effective date, were or are disadvantaged by discrimination on one or more of the grounds in Article 27(4). 63 © O 3

64 Legalising Homosexuality Article 27(4) forbids discrimination of a person on any grounds…. The ones stated in this article are not all there is. In Article 23(a) a court can give “a declaration of rights.” Article 45 has intentionally been worded in a vague way to create a loophole through which Courts could in future interpret the constitution to recognize homosexual and lesbian rights. Note that article 27 (1) states that every person is equal before the law and has the right to equal protection and equal benefit before the law. Among others, Article 27(4) prohibits discrimination on the basis of ‘sex’ not gender. 64 © O 3

65 Legalising Homosexuality Read with the definition of “marginalised group” in Article 260, ‘sex’ here can only mean homosexual rights. Article 33(2)(c) curtails Freedom of expression on the very vague grounds of ‘hate speech,’ yet sub-clauses (a), (b) and (d) adequately address what Kenyans usually call hate speech: “(a) Propaganda for war; (b) Incitement to violence; and (c) Advocacy of hatred that (i) constitutes ethnic incitement, vilification of others or incitement to cause harm, or (ii) is based on any prohibited ground of discrimination contemplated in Article 27(4).” The words hate speech have been used elsewhere to stifle condemnation of socially unacceptable practices such as homosexuality and abortion. 65 © O 3

66 Legalising Homosexuality Given the above, Article 33(2)(c) cannot be taken to be an innocent and positive law designed to prevent people from spreading the hatred of others. Given that international laws and conventions are going to be part of Kenyan law, we must look at how this ‘hate speech’ provision has been interpreted by courts around the world. Hate speech legislations have been used by fanatical secularists, including homosexuals and lesbians, to push their hostility against religious orthodoxy and the integrity of scripture, and to treat with contempt values such as ‘morality’ usually advanced by faith communities. 66 © O 3

67 Legalising Homosexuality Hate speech legislations are used to veto any criticisms of the homosexual movement, especially using teachings of the bible. That way, homosexuals can attack heterosexuals unchallenged and, by so doing, force society to accept their thinking, since, as Fyodor Dostoevsky said, "If there is no God, everything is permissible." Ake Green, a Pentecostal pastor in Sweden, was sentenced on June 29, 2004, to 30 days in jail for hate speech against homosexuals for his church sermon on July 20, 2003, which focused on biblical teachings that condemn homosexual behaviour. 67 © O 3

68 Legalising Homosexuality Hugh Owens, who placed a newspaper advert that listed four Bible references opposing homosexuality, was found guilty and ordered to pay damages in mid 1997 of having “discriminated against three gay men,” a hate crime in Canada under Saskatchewan’s Human Rights Code. In 2004, eleven Philadelphia Christians were arrested for peacefully passing out Christian literature at a gay pride event and charged under Pennsylvania’s hate crimes law which has “sexual orientation” as a victim category. Fortunately, the charges were later dismissed by Philadelphia County Court of Common Pleas as being without merit. 68 © O 3

69 Legalising Homosexuality These dynamics indicating that the Bible itself constitutes the expression of hatred, or that Bible verses can be interpreted as prohibited hate speech, are cause for grave concern. Categorically, the PCK does not protect the freedom to preach and express opinions against immorality or engage in advocacy without prosecution. We reject the Proposed Constitution of Kenya because it will criminalise Christian values, and it will effectively be used to gag churches from preaching against evils like abortion, homosexuality and lesbianism. VOTE NO! 69 © O 3

70 Punitive Costs of Bloated Bureaucracy Expansion of Parliament from 210 to 416 members and 2 speakers (total 418).  Nat. Assembly: 350 members (Article 97) 290 members elected in the constituencies 47 women members elected in the counties 12 members nominated by political parties 1 Speaker  Senate: 68 members (Article 98) 47 elected 16 women nominated by political parties 2 youth & 2 persons with disabilities 1 Speaker 70 © O 3

71 Punitive Costs of Bloated Bureaucracy Counties 47 Governors 47 Deputy Governors 47 Speakers 47 Executive Committees. 47 County Assemblies (representing about 3,800 wards) Commissions Apart from the new offices in counties, the proposed Constitution sets up 11 commissions each with a secretariat of at least 50 employees. 71 © O 3

72 Punitive Costs of Bloated Bureaucracy Where will the money to pay all these people’s salaries and allowances, and to run their offices come from? Already our public primary schools have an acute shortage of 67,000 teachers and we are unable to employ more from the many unemployed Kenyan teachers? Our public hospitals are underequipped and understaffed to the extent that many dispensaries that were built using money from the Constituency Development Fund are not operational. Already Kenyans are among the most highly taxed people on Earth. 72 © O 3

73 Punitive Costs of Bloated Bureaucracy Over 70% of public revenue comes from flat-rate taxes on basic consumables and not from graduated income tax. Hence, the poor spend a higher percentage of their earnings on tax. Instead of setting up and running a bloated bureaucracy Kenyans should be embracing public sector cost-cutting and other austerity measures to facilitate savings that will build up a capital base for development. We reject the Proposed Constitution of Kenya because it will raise taxes and the cost of living. VOTE NO! 73 © O 3

74 Poor Representation and Entrenching Tribalism The Review Act did not give the Committee of Experts the mandate to arbitrarily create the 47 counties in Article 6(1) and in the First Schedule of the PCK, using the old 46 districts and Nairobi Province, whose functions were not the same as those of the devolved counties. The old districts were created largely along ethnic considerations, and purely as administrative units of the central government to serve the imperialists of the day. The old districts were never intended to be units of devolved governance. The proposed counties are extremely unequal and are potential sources of conflict and marginalisation. 74 © O 3

75 Poor Representation and Entrenching Tribalism The use of the old districts has created counties that don’t link representation to important factors like population density and geographical size. Some counties have only 100,000 residents, others have as many as 2 million people but in all cases the representation and the revenue allocation from the centre will be the same. Fair representation would require the splitting of huge counties like Kiambu, Meru, Bungoma, Kakamega, Kisii and Nairobi. Even though the old districts were based largely on dominant ethnic identities, they still served minorities because they were appointive units of service delivery by the central government and staff were deployed across the republic. 75 © O 3

76 Poor Representation and Entrenching Tribalism Counties are elective units where, given the ethnic nature of Kenyan politics, minorities will be excluded from the mainstream of public affairs. Already, fearing marginalisation in the new elective units where they belong, the people of Kuria, Teso and Mount Elgon are asking to be considered as special cases deserving counties of their own. The small ethnic groups fear that they might never get representation either as senators or as county governors if they are lumped together with the dominant ones. Effectively, the PCK constitutionalises ethnicity which is a national scourge that needs to be killed and buried. 76 © O 3

77 Poor Representation and Entrenching Tribalism Article 89 (5-12) establishes a ‘population quota’ as the basis for establishing elective units. This entrenches the one-man-one-vote principle without adequate measures to protect sparsely populated areas. That will require the merging of constituencies and wards. Effectively, this will further marginalise the traditionally marginalised sparsely populated but vast areas of North Eastern, Upper Eastern, Coast and Upper North Rift. The merger of wards and the anticipated ‘restructuring’ (read abolition) of the Provincial Administration will not only undermine decision making and leadership, and use of resources at the grassroots, it will adversely compromise security in rural areas. 77 © O 3

78 Poor Representation and Entrenching Tribalism Article 235 says that, following legislation, counties will be responsible for: a) establishing and abolishing offices in its public service; b) appointing persons to hold or act in those offices, and confirming appointments; and c) exercising disciplinary control over and removing persons holding or acting in those offices. How will we guard against ‘ethnic cleansing’ in public sector employment and in other opportunities given that the county public service will be established and run by the local counties? Local politicians will most likely favour the “sons of the soil” over those from elsewhere? 78 © O 3

79 Poor Representation and Entrenching Tribalism Ideally, all constituencies should have become districts for purposes of service delivery and the point at which the Public Service Commission will deploy county civil servants answerable to the local elected executive. That would not only guard against ethnic cleansing in the largely ethnic counties, it’ll also bring services closer to the people, and nurture the national unity and integration required to make Kenya great. We reject the Proposed Constitution of Kenya because it entrenches tribalism and will lead to Kenya’s balkanisation and fragmentation. VOTE NO! 79 © O 3

80 Destabilisation through Reckless Land Reforms Trust land is currently held by local authorities on behalf of the people resident in the area. But the PCK will convert it into community lands, so defined on the basis of ethnicity or cultural identity, meaning land belongs to tribes. This will be a tool for fragmentation and Balkanisation of the country. It might also lead to the dispossession of those who genuinely acquired land in areas away from their ancestral homes. The potential for conflict is especially high in areas that are traditionally claimed by aboriginal tribes that were displaced by colonialists but are currently occupied as cosmopolitan Government settlement schemes. 80 © O 3

81 Destabilisation through Reckless Land Reforms Classifications like “Ancestral Land” are going to cause social unrest since all land in private ownership today in Kenya was at one time someone’s ancestral land, or can be traced to public land. There is no cut-off date limiting how far back we can go in the period to be investigated, and this is a recipe for national land wars given how Kenyans have settled since independence. What happens where land has been occupied by other Kenyans yet the National Land Commission has powers to reopen closed cases? Are we setting the stage for Israeli-Palestinian style land conflicts? 81 © O 3

82 Destabilisation through Reckless Land Reforms The Chapter is simply going to resurrect historical conflicts over land, create social unrest, and reverse our development. Obviously we can't rewrite the history of this country. If the aim was to reclaim land that was fraudulently acquired by the privileged, this can be done through legislation that ties the sanctity of title to the legitimacy of the process or procedure used in its acquisition. We don’t require a new constitution to ensure that land title deeds are honoured and protected only where they have been acquired in good faith and in accordance with the laws and procedures prevailing at the time of their acquisition. 82 © O 3

83 Destabilisation through Reckless Land Reforms Article 68(c)(v) is adequate for reclaiming fraudulently acquired land, except it has no time limit as was the case with 86(2) of the Bomas Draft, 86(2) of the 2005 Wako Draft, and 85(2) of the Harmonised Draft. The establishment of the all-powerful National Land Commission to centrally manage the allocation and appropriation of community and public land fails to recognise that past mismanagement of such land was largely due to the exclusion of grassroots leadership in land matters. Articles 85(3) of the Bomas Draft, 85(3) of the 2005 Wako Draft, and 84(3) of the Harmonised Draft proposed the establishment of regional offices of the National Land Commission. 83 © O 3

84 Destabilisation through Reckless Land Reforms The PCK abolishes this, meaning duties of the Commission will solely be conducted in Nairobi and away from the affected people at the grassroots. That will not only enhance inefficiency and corruption, it negates the principle of devolution. The National Land Commission will create instability as it could be used by the Government to take over communal land. There is no provision for expanding arable land through irrigation and similar technologies. In 67(2)(e, h) the National Land Commission has rogue powers that can be used as a political tool of harassing those the state finds undesirable. 84 © O 3

85 Destabilisation through Reckless Land Reforms 67(2)(e) can also work as a channel for evicting those “undesirables” who were not evicted from their lands through ethnic cleansing. The fact that it is not clear to whom it reports, the Commission might use these provisions to carry out selective witch-hunting. The taxation on land and immovable property in 67(2)(g) will impoverish the rural poor, who may not even be able to pay the taxes, Will the poor peasants lose their land when they unable to pay the taxes? The powers to decide land use can be used to snatch land from people, especially the poor 67(h). 85 © O 3

86 Destabilisation through Reckless Land Reforms 63(d) is a time bomb for land clashes. Why are we creating tribal enclaves in 63(1) and 63(2)(d)(ii)? Article 65(3)(a): Shouldn't there be incentives for foreigners to partner with citizens, at least for purposes of investment in land? The provision requiring Parliament to set minimum and maximum land holdings in 68(c)(i) is ill advised. Does it mean the amount of land one title deed can hold, or the amount of land an individual will be allowed to own irrespective of the number of titles or alliases? 86 © O 3

87 Destabilisation through Reckless Land Reforms Minimum land holdings, or land consolidation through legislation without industrialisation, affects the poor adversely and is a recipe for chaos, especially in communities where land is passed on from father to son. Maximum land on the other side interferes with the right to property and is a disincentive to massive investment in agriculture. What’s the criterion for maximum and minimum land holding? In a move that was clearly insensitive to the plight of peasant farmers in 2005, then Lands Minister Amos Kimunya decreed banning the sub-division of land below 2.5 acres, but because it was unconstitutional the Government retreated. 87 © O 3

88 Destabilisation through Reckless Land Reforms Government lifted the ban after strong opposition to the policy from the general public. Will the millions of Kenyans who own and subsist on tiny pieces of land lose their property so that it can be consolidated? The Chapter on land captures our shortsighted unscientific engagement with the realities we live in today. The same applies to our preoccupation with the mere redistribution and not the critical creation of new wealth. Reference to intellectual property in the chapter on land in 69(1)(c) is misplaced. 88 © O 3

89 Destabilisation through Reckless Land Reforms Whereas the target of most modern societies is to take people off the land into well managed urban centres, where they can easily be provided with modern amenities, the Proposed Constitution is guided by the backward/regressive philosophy that EVERYONE should own a piece of land to call his/her own. We reject the Proposed Constitution of Kenya because it will lead to Kenya’s balkanisation and fragmentation. VOTE NO! 89 © O 3

90 State Security Concerns Article 35(1)(a) & 35(3) endanger State security. The right to information held by the State should be checked by parliamentary legislation to protect necessary State and personal secrets. Sensitive personal information in State custody includes medical records in public hospitals. This article negates the secrecy requirements in the oaths taken in the Fifth Schedule. Provision should have been made requiring legislation as provided for in Article 24(1) that will allow the enjoyment of this right without endangering State security. 90 © O 3

91 State Security Concerns Article 24(5) takes on an ominous threat of the possibility of creating instability when read with Articles 37 and 41(2)(c & d). The phrase in 24(5) that “... a provision in legislation may” restrict the Police and Military from engaging in strikes or demonstrations is totally inadequate. Which legislation is referred to here? The word 'may' implies that Parliament is not under obligation to make that law. The article ignores other disciplined forces in Kenya, including the National Intelligence Service, the Kenya Prisons Service, the Kenya Forest Service, the Kenya Wildlife Service and the National Youth Service. 91 © O 3

92 State Security Concerns So, in the event of the Proposed Constitution of Kenya becoming law, and in the absence of the said legislation, the police and military will, like any Kenyan worker, be constitutionally be entitled to go on strike, hold demonstrations, etc. The restrictions in Article 24(5) should clearly be mandatory and extended to all disciplined forces in the service of the State. In the interim period, when Parliament has not enacted the said legislation limiting the enjoyment of these rights, the said rights must be suspended for the said categories of citizens. 92 © O 3

93 State Security Concerns Lifting Presidential immunity in Article 143(4) for “any treaty which Kenya is party and which prohibits such immunity” will emasculate Kenya’s Commander in Chief. Ideally, the immunity should only be lifted for proven crimes against humanity. We reject the Proposed Constitution of Kenya because it puts the security of the country at risk. VOTE NO! 93 © O 3

94 Glaring Errors The Proposed constitution has the following foreign words: – Article 24(2)(b) the word ‘fundmental’ – Article 92(i) – the word ‘politcal’ – Article 95(4)(c) - ‘expediture’ – Article 115(3) the word ‘amendeds’ – Article 173(4) the word ‘Judicary’ – Article 216(4) the word ‘comission’ – Article 250(8) the word ‘indepenedent’ – Article 254(3) the word ‘commisssion’ – Third Schedule – Oath… for a Cabinet Secretary the word ‘Presidentfor’ 94 © O 3

95 Glaring Errors There are grammatical and other mistakes in the Proposed Constitution of Kenya which confuse the meaning of certain clauses. Examples include: – Article 163(1) the phrase “There is established the Supreme Court, which shall consists of” – Article 260 the phrase ‘“county legislation” means a law made by a county government or under under authority conferred by a county Assembly’; Clause 234(3) has two clauses numbered (b). This renders the interpretation of this particular clause impossible when reference is made to clause 234(3)(b). Which one of the two would be acceptable? 95 © O 3

96 Glaring Errors The following clauses are missing from the Proposed Constitution of Kenya: – Article 41(3): Sub-clauses (a), (b), (c) and (d) are missing; – Article 103(1)(e)(i) refers to a Clause 2 which is missing; – Fourth Schedule, Part 1: Clause (27) is missing – Sixth Schedule, Part 6: Clause (27)(2) is missing Are the following missing clauses deliberate loopholes for later mischievous insertions after the Proposed Constitution is ratified, especially given that already we have more than one version of the document in circulation? Mischievous characters can exploit the missing clauses to insert harmful provisions once it is ratified at the referendum. 96 © O 3

97 Glaring Errors What is the meaning of Clause 20(3)(a)? Should the words "does not give" be replaced with the word "gives" for it not to undermine the mandate of the Judiciary? Stopping the courts from giving effect to rights and fundamental freedoms undermines and negates the entire Bill of Rights. The numerous spelling and grammatical errors, and implied law will embarrass the country and make it difficult to interpret this constitution. We reject the Proposed Constitution of Kenya because it has glaring errors. VOTE NO! 97 © O 3

98 Hostility to Future Amendments or Replacement Article 2(3) is categorical that: “The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ” and doesn’t exempt amendment Articles. Technically and in substance, an amendment is a challenge to the validity or legality of the Constitution through the various State organs like Parliament and counties, which have been given the power to amend the Constitution. Effectively, this means that, unlike the Current Constitution which allows amendments and even replacement, the Proposed Constitution is hostile and cannot be amended or replaced through legal means. Does this mean that the Proposed Constitution can only be amended through military action or civil uprising? 98 © O 3

99 Hostility to Future Amendments or Replacement Chapter Sixteen unnecessarily and dangerously makes the Proposed Constitution of Kenya practically impossible to amend. The Chapter sets unattainable thresholds for making amendments, and does not provide for replacement. Further, once ratified, the PCK cannot be amended until all counties, the Senate, etc are established, in a period of not less than 3 years – effectively after the 2012 general elections. A Constitution that is practically impossible to amend is dangerous as it may inspire aggrieved parties to resort to unconstitutional means of changing the constitution. 99 © O 3

100 Hostility to Future Amendments or Replacement Some people have mistakenly argued that the high threshold required to amend the Proposed Constitution protects it from being mutilated by selfish interests, the way the Independence Constitution was. The measures taken to secure the document, by literally clamping an external padlock on it, and not on working to establish a strong internal structures and mechanisms that would secure the document, have taken away the sovereignty of Kenyans to self-determination. This is a sad admission by the CoE that they failed to establish a constitutional framework of institutional controls, checks and balances that would secure the new order. 100 © O 3

101 Hostility to Future Amendments or Replacement Ideally, a Constitution is protected by establishing independent and strong institutions that are robust enough not to be manipulated to effect self-serving amendments, but that, at the same time, can allow progressive amendments to be easily made to meet emerging national needs. Flexibility, not rigidity is the hallmark of a good constitution. Despite its many weaknesses, the flexibility of the Current constitution has allowed us to make incremental positive change. The current Constitution allowed us to re-introduce multiparty democracy and set the Presidential Term Limits. 101 © O 3

102 Hostility to Future Amendments or Replacement It also allowed us to entrench the National Peace and Reconciliation Accord that established the Grand Coalition Government. Even the making of the new constitution is testimony to the progressive nature of the current Constitution that it anticipated a time when it could not be relevant, and so it provided a clear mechanism for its replacement. The Proposed constitution is so rigid that it does not anticipate its own replacement. At the very best, it only allows us to amend it through a very punitive process. 102 © O 3

103 Hostility to Future Amendments or Replacement The provision for amendments by popular initiative (Article 257) is impossible to realise because of the unrealistic threshold and the winding process that has no clear timelines and that places no obligation on the State to facilitate the mandatory referendum required for amending ‘super clauses’. Amendment by popular initiative is too expensive for an average Kenyan, meaning only the rich and mighty will enjoy the provision. Further, since only the literate can append signatures illiterate citizens will also be discriminated against. Signature here cannot be interpreted to include fingerprints because official documents usually require both. 103 © O 3

104 Hostility to Future Amendments or Replacement Verification of the signatures will be virtually impossible since databases are held in fingerprints. The moment the Proposed Constitution of Kenya is ratified, the very high threshold for amending it will take away the sovereignty of present and future generations of Kenyans by undemocratically limiting their right to self-determination. Remember that Article 2(3) states: “The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.” Do courts have the power to interpret this Constitution? 104 © O 3

105 Hostility to Future Amendments or Replacement How will courts interpret the Constitution given the many contradictions that put clauses on a collision course with others, if these cannot be challenged? Does this mean that any challenge to this constitution is an act of treason? That means that if it becomes law, Kenyans will serve it instead of it serving them. Yet, as the holy book says, Laws are made for man not man for the law. We reject the Proposed Constitution of Kenya because it will lock Kenyans into a constitutional prison by literally denying us the right to self determination. VOTE NO! 105 © O 3

106 Youth Given Raw Deal The platitudes of Article 55 grant cosmetic recognition to the youth yet Kenya faces a youth bulge that is threatening the security of the country. Creating a handful of elective positions for the youth in organs of governance is diversionary. The millions of youth need well paying jobs, not the ‘Kazi kwa Vijana” nonsense with its near slave labour like conditions. Given its huge and unnecessary establishment, the PCK does not favour the creation of new wealth that is required to absorb the armies of youth seeking a foothold in society. Only a system that encourages a lean and efficient establishment can be acceptable in our circumstances. 106 © O 3

107 Protection of Rights to Property Article 40(3)(a) gives the State power to deprive legitimate land owners their property without compensation. The constitutional protection of the right to property must be enjoyed by all, without discrimination. Why would the Bill of Rights deny hardworking Kenyans their right to own and benefit from land they have legitimately acquired. 107 © O 3

108 Equitable Sharing of National Revenue Chapter 12, Article 203(2) proposes 15% of annual national revenue to be devolved to counties to cater for development salaries, allowances and office expenses of the bloated county establishment of governor, deputy governor, county executive, county assembly, county bureaucracy, staff, workers, etc. It is hardly feasible that anything will be left over for development and service delivery to the citizens. Counties might have to resort to imposing heavy local taxes to finance development and service delivery. The era of building classrooms, roads, bridges, dispensaries, etc., using devolved funds like CDF and LATF will be a thing of the past. 108 © O 3

109 Problems with Representation The proposal of the IIBRC on boundaries in Article 89(9) should be vetted by Parliament to avoid gerrymandering, where self- serving constituencies can be created clandestinely. The Elections date given as the second Tuesday in August (Articles 101, 136(2)(a), 177(1)(a), 180(1)) in the PCK is untenable... During an election year, it will be untenable to read the budget in June and debate the same until October because: i. It will clash with the campaign period; ii. It will require two different Parliaments to debate the same budget in an election year. 109 © O 3

110 Problems with Representation The budget reading date cannot be changed from June given Kenya’s commitments to read its budget simultaneously with the other members of the East African Community. 110 © O 3

111 Imposition of “other written law” What’s the meaning of the words ‘other written law’ that appear in Articles 26 (3,4), 159(3)(c)? Which are these ‘other laws’ that are not Acts of Parliament? The phrase “other written law” erode the exclusive legislative powers of our Parliament which allows the making of Kenyan law via Acts of Parliament. The clause allows the introduction of laws that permit abortion and homosexuality and some “rights” rejected by the majority of Kenyans through international treaties and conventions that will be ratified by the Executive without the oversight of our Legislature. 111 © O 3

112 Dangerous Marriage Laws Article 45(3) read with 2(4) and 24(4) technically outlaws polygamy for non Muslims. What does the outlawing of polygamy mean for African culture which recognises it as a legitimate institution. Article 2(4) is clear that: “Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.” Article 45(3) read with 68(c)(iii) demands equal sharing of family land with the woman in the unfortunate event of a divorce without consideration of peoples cultures, except for Muslims who are exempted in 24(4). 112 © O 3

113 Dangerous Marriage Laws Will women who are married and have to be divorced due to misconduct like adultery be entitled to half the share of family land? And after she gets the land, what will stop the woman from marrying her lover and inviting him to live with her on that piece of land. Article 45(3) opens the door wide open for gold-digger's to target rich partners, get married to them, and divorce them to get half the family property without consideration of what each has contributed as the law requires today. 113 © O 3

114 License for Pornography Article 33(1)(b) read with 34(2)(a,b) is an open and broad license for pornography. Why would we set in place a law 34(2) that forbids the State from intervening under any circumstances to regulate the content of what is published? Are we after freedom or anarchy? If it is to secure freedom of expression, then we should leave it to Parliament to ring fence the enjoyment of this right for the sake of public morality and general interest. 114 © O 3

115 Are Uniforms Banned? Article 27(4) states that the State shall not discriminate, among others, on the basis of ‘dress’. This means that compelling people to wear uniforms, demanding decent dressing, or making any demands on how people should dress will be outlawed. The first causality will definitely be schools where some student’s might want to enjoy this ‘right’ by refusing to wear uniforms and the teachers will be helpless to do anything about it since Article 2(3) is categorical that: “The validity or legality of this constitution is not subject to challenge by or before any court or other State organ.” 115 © O 3

116 Nonsense about Currency Article 231(4) states that: “Notes and coins issued by the Central Bank of Kenya may bear images that depict or symbolise Kenya or an aspect of Kenya but shall not bear the portrait of any individual.” Though Clause 34 of the Sixth Schedule says that: “Nothing in Article 231(4) affects the validity of coins and notes issued before the effective date,” the danger still remains that a government may use this as a loophole to engage in an expensive issuance of new currency. Further, the country should be allowed to honour its heroes on currency notes like other democracies do. 116 © O 3

117 Nonsense about Currency Many countries, including the USA, carry portraits of their national icons on their currency. Why should Kenya be denied the same? If the desire was to restrict future presidents going onto expensive ego trips to put their faces on the national currency, why not qualify it to read “not bear the portrait of any living individual?” 117 © O 3

118 Dismissal of Parliament by the Chief Justice Article 261 (7) states that: “If Parliament fails to enact legislation in accordance with an order under clause (6) (b), the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament.” That is unacceptable. Unless the principle of separation of powers means absolutely nothing, there is no way the Judiciary can give directions to Parliament. A validly elected Parliament cannot be send parking through a judicial process. 118 © O 3

119 Dismissal of Parliament by the Chief Justice Under the envisage Presidential system, the president has no powers to dissolve Parliament. Parliaments in a Presidential system serve a fixed term and are never dissolved. Such misconceptions of the basic functions of the various arms of government under a presidential system are unacceptable. There is no room for a hangover from the Parliamentary system that is being abandoned. 119 © O 3

120 Children’s Rights without Parental Rights In Article 53, the Constitution gives rights to children without giving them any corresponding responsibilities/obligations. The same Constitution doesn’t give any rights to parents. Article 14(4) states that “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 of Kenya by birth.” The PCK doesn’t safeguard against manipulative acquisition of citizenship by non deserving persons. Why are we throwing our birthright to foreigners? Are there no instruments to give legal protection to such children without necessarily messing up with our birthright? 120 © O 3

121 Children’s Rights without Parental Rights This will cause a flood of children to come in at a time when we cannot even take care of our own. Article 17(2) that talks of revoking such citizenship is not enforceable as it will require full-time and life-long monitoring, and a lot of luck. Further, around the world, citizenship by birth is not revocable. Are we making it possible to revoke our citizenship by birth? Citizenship by birth is the highest form of citizenship and it allows one to access any office in the land, including being president and Commander-in-Chief. 121 © O 3

122 Children’s Rights without Parental Rights This is unacceptable, especially given the volatile region we live in that has so many refugees seeking to be Kenyan citizens. Article 29 of the PCK states that no person should be subjected to corporal punishment. Does that include parental disciplinary chastisement? The parental right to discipline the children is not safeguarded! Children don’t owe parents any duty under the PCK. 122 © O 3

123 Detention of Citizens Article 51 Constitutionalises detention (without trial?) There is no way this great evil that destroyed so many Kenyan lives and livelihoods can be entertained by a constitution that claims to be progressive. There is no room for detention in the new democratic Kenya we crave. This singular issue shows that the Proposed Constitution of Kenya is not the document of the new democratic order. This document is a very cunning masquerade. 123 © O 3

124 Detention of Citizens Is the accused person protected from prolonged detention? NO. Article 49(g) states that an accused person has the right at the first court appearance, to be charged or informed of the reason of the detention continuing or to be released. No time limit has been set for the continued detention. Aren’t we reintroducing detention without trial? Say a loud NO! to detention! 124 © O 3

125 Burden of Public Debt on Future Generations Article 201(c) states that: “the burdens and benefits of the use of resources and public borrowing shall be shared equitably between present and future generations;” This license for unlimited borrowing, because future generations will pay three centuries down the line, threatens the rights of future generations to self determination, and is in clear contravention of the both common sense and morality. There is no way we can consciously burden the future. We musty live in such a manner that we make it easy for future generations to enjoy life to its fullest. 125 © O 3

126 Potential for abusing the Nolle Prosequi The powers given to the Director of Public Prosecutor (DPP) in Article 157 to terminate cases before judgment can still be abused in this constitution Where the DPP decides to terminate a proceeding that was initiated by the State, the courts should acquit the accused of the charges. This will cure the possibility of the state using the courts as political tools to punish politically undesirable elements by maliciously charging them in courts on frivolous grounds where they are circuitous and punishing prosecutions only for the DPP to move in at the eleventh our to terminate the trials. 126 © O 3

127 Imperial Presidency The PCK creates an imperial presidency with absolute and draconian powers. The President shall be: Head of State, Head of Government, Commander-in-Chief, Chair of the National Security Council, select and appoint all, etc. In the circumstances, it is important that such a powerful office should be effectively checked through constitutional controls and balances, including a strong Senate and Judiciary. Hence, the Separation of Powers principle must be adhered to strictly so as to avoid situations where this powerful office does not swallow the other two arms of Government. 127 © O 3

128 Attorney General for Life The current AG will vacate office after twelve months according to section 31(7) of the sixth schedule. Article 132(2)(b) gives the President the power to hire and fire the Attorney General according to Article 156. However, 156 has no term limits, it does not provide for removing the AG, and it doesn’t make reference to a possible vacancy in the office of the Attorney General,. Will the Attorney General stay in office for ever? This undermines the principle of control, checks and balances anticipated in a true democracy. Further, 156(4)(c) makes the AG report to both Parliament and the President, creating a likelihood for conflict of loyalties. 128

129 No Oath of Office for the PM and Deputies Section 12 of the Sixth Schedule says that the President, the Prime Minister, the Vice-president, and the Cabinet will continue in office in accordance with the old Constitution until the elections held under the new Constitution. Section 13 requires the President and any State officer continuing in office under section 12 to take new oaths of office under the new Constitution. Unfortunately, the Third Schedule does not give oaths for the Prime Minister and Deputy PMs. It is not acceptable that they continue in office without subscribing to an oath of office. 129 © O 3

130 No full protection of the right to life! Section 71 of the current Constitution states the precise circumstances under which life can be taken away. In Article 26(3) the PCK casually allows life to be taken away even by laws subordinate to the constitution (read ‘other written law,’ which could be an Act of Parliament, an international treaty or convention.) The threshold for abortion in Article 26(4) is unacceptably low, opening the door for unchecked abortion on demand. The lives of pregnant women are also endangered as permission to intervene and terminate a pregnancy is left to the unaudited opinion of what the PCK calls “the opinion of a trained health professional,” who needs not be a medical doctor. What happens should complications arise? 130

131 No complete freedom of conscience, religion and belief? The Protection of freedom of conscience guaranteed in Section 78 of the current Constitution is watered down in Article 32 of the PCK. The right to propagate one’s religion and to convert from one religion to another, which is safeguarded in the current constitution, has been curtailed. This is despite religious organizations agitating for express inclusion of the same. Further, unlike the current Constitution, Article 32(3) of the PCK prevents religious organizations from establishing exclusive institutions for purposes of advancing or enjoying their religion without challenge. Nevertheless, Muslims, through the Kadhis courts, are protected. 131

132 CONCLUSION We wanted a new constitution giving more power to the people, protecting more rights, and limiting the power of the government to interfere in our lives. The new constitution was supposed to promise greater peace and security for the citizens of Kenya. We were seeking only to secure our rights and defend life and liberty but were unwillingly and unknowingly drawn into the corrupt realm of international politics. Don’t contribute to our destruction! VOTE NO! 132 © O 3

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