On the 25th of November, 2020, a newer version of the Constitution of Kenya (Amendment) Bill, 2020 was published by the Government Printers. 

The object of this Bill according to its promoters, is to amend the Constitution of Kenya 2010 to address issues arising from its implementation. Of particular importance is the need to resolve issues of divisive elections and promote gender equity in governance. The amendment bill also seeks to strengthen the structure of devolution by increasing resource allocation to the counties while broadening mechanisms for all the people of Kenya to benefit from economic growth. The bill contains proposals to harmonise certain roles and functions of the bicameral legislature, it seeks to fortify national ethos by specifying the responsibilities of citizens while strengthening accountability on public resources and the fight against corruption.

The return of the Prime Minister post

The Constitution of Kenya (Amendment) Bill, 2020 seeks to amend Chapter Nine of the Constitution on the Executive to broaden the executive structure to achieve inclusivity, cohesiveness, and unity for the benefit of the people. The amendment introduces the office of the Prime Minister and two Deputy Prime Ministers, with leadership roles in the executive and Parliament. It also provides that Cabinet Ministers may be appointed from among members of the National Assembly.

New things

• The Prime Minister will be nominated by the President from the elected Members of the National Assembly from a political party having a majority of Members in the National Assembly through a stipulated procedure. The nominee shall not assume office until his or her nomination is confirmed by a resolution of the National Assembly supported by a majority vote of the members. If the second nominee for a Prime Minister proposed by the President is not confirmed, the President shall appoint the Prime Minister without reference to the National Assembly. The Prime Minister may be dismissed by the President or through a vote of no confidence in the National Assembly. The amendment further provides for the Deputy Prime Ministers to be appointed from among the Cabinet Ministers.
• The President may include the Prime Minister and Deputy Prime Ministers in the list of persons who assist him or her in the exercise of the executive authority. 
• The President will be mandated to report on the progress made towards achieving the economic and social rights guaranteed under Article 43 of the Constitution by submitting a report for debate to the National Assembly.
• The office of Cabinet Secretary will be renamed to Cabinet Minister to reflect a profile change of this office noting that some holders may be appointed from among the members of the National Assembly.
• There will be a mixed cabinet with some members of the Cabinet being appointed from the members of the National Assembly. The tenure of office of the Cabinet is provided, outlining that the Cabinet remains in office until the President-elect assumes office.
• The Bill proposes to establish the office of the Deputy Ministers whose functions shall be to deputise for Cabinet Ministers in the execution of the Cabinet Ministers’ functions.
• The vetting of the Secretary to the Cabinet by the National Assembly and Principal Secretaries by the National Assembly will be removed. This will be to ensure the Public service remains impartial and ready to serve the people under governments of any political formation and ensure that their accountability is administrative and technical.
• The condition that requires a presidential election to be cancelled and a new election held where a person nominated as a deputy president dies on or before a scheduled election will be removed. This is to ensure that a presidential election is held despite the death of a running mate of the presidential candidate to avoid uncertainty and minimize tension in a presidential election.
• The period during which the Supreme Court is required to hear and determine a petition on questions as to the validity of a presidential election has been increased from fourteen days to thirty days. This is to provide a more realistic period of finalizing the presidential election petition and is informed by previous experience on the same.
• As a member of the Cabinet, the Attorney General may be assigned by the President to perform the functions of a Cabinet Secretary.
• The qualification for appointment as the Director of Public Prosecution will be the same as that of a judge of the Court of Appeal.

Harmonisation of certain roles and functions of the bicameral legislature

The Bill seeks to amend Chapter Eight of the Constitution on the Legislature to remodel the parliamentary system by including the government in the National Assembly and to enhance the oversight powers of the Houses of Parliament. It is proposed that the Executive will be represented in the National Assembly by the Prime Minister, Deputy Prime Ministers, Cabinet Ministers Deputy Ministers and the Attorney-General.

The office of the Leader of the Official Opposition is established. The existing disqualifications for the members of the county assemblies from being qualified to be elected as members of Parliament are removed. The Bill further proposes to expand the composition of Parliament to give effect to the gender equity and equality of the vote principles.

New things

• The oversight role of the Senate will be enhanced on matters relating to all county revenue and their expenditure. The existing provision only mandates the Senate with oversight role on the national revenue allocated to the county governments and does not expressly extend such mandate to counties’ own source of revenue and borrowings and their expenditures. This is expected to enhance accountability of counties in matters of public finance and enhance service delivery to the people.
• The Membership of the National Assembly will be increased from the current 290 members to 360 members. This is a consequence of the proposed increase in the number of constituencies. Further, this amendment proposes to include the Leader of the Official Opposition, the Cabinet Ministers who are not members of the National Assembly and the Attorney General as members of the National Assembly. Further, the amendment provides for the nomination of persons with disabilities and the youth to the National Assembly. Lastly, special top up seats are created to ensure the gender principle is actualized. However, in filling the special top up seats, it is provided that a first priority in the nomination shall be given to candidates who contested for the constituency seats and were not elected. The affirmative action for top up will only last for fifteen years.

Promoting Gender Equity in Governance

The Bill proposes to amend Article 98 which is on the Membership of the Senate to structure the membership of the Senate to achieve gender parity. It is proposed for the Senate to have 94 members, each county represented by a woman and a man elected by voters in the counties.

The Bill seeks to enhance gender parity in the governance of counties by providing for the candidate of the county governor, in nominating a deputy governor, to consider a person of the opposite gender.

Clause 15 of the Bill proposes to amend Article 99 (Qualification and disqualifications for election as member of Parliament) to remove a disqualification barring member of the county assemblies from being qualified to be elected as members of Parliament.

The return of the leader of Official Opposition

The Bill proposes to insert a new Article 107A which will introduce the Leader of Official Opposition into the Constitution. The Leader of Official Opposition shall be the person who received the second greatest number of votes in a presidential election and whose political party or coalition of parties has at least 25% of the members of the National Assembly. 

The Leader of Official Opposition and the Prime Minister shall not be members of the same political party.

The Bill also proposes a new order of precedence in the National Assembly to include the Prime Minister and the Leader of Official Opposition. It also proposes to constitutionalize the party leadership structure and order of precedence in the Senate.

Parliamentary reforms

The Bill also proposes to expand the period within which a Bill shall be referred to the President for assent from the current seven days to fourteen days. This is to allow for adequate time for consultations and refining of the bill by the institutions involved in the legislative process.

The Bill proposes to amend Article 115 (Presidential assent and referral) to remove the voting by delegation in the Senate. This is a consequential amendment flowing from the proposed repeal of Article 123.

Devolution 

The Bill seeks to amend Chapter Eleven of the Constitution on the Devolved Government to provide for further clarity on the nomination of members of the county assembly and powers of a county governor.

The Bill contains a proposal to change the nomination of candidates from being based on seats won to being based on the votes received by a political party in an election. Further, it seeks to align the term of county assemblies to the election cycle and provide that the special top-up seats shall expire after ten years, with the view that affirmative action measures ought to have time limitations.

The other proposal seeks to clarify that a county governor has powers to dismiss or reassign their county executive committee members. This ensures that a member of the county executive committee does not automatically vacate office when the person holding the office of the county governor becomes vacant. Further, the amendments offer leeway for the county governor to appoint members of a county assembly into the county executive committee. Lastly, it is provided that the county governors shall be accountable to their respective assemblies in the performance of their functions.

The Bill further increases the percentage of funds allocated to county governments from 15% to 35% to strengthen devolution and ensure that county governments have adequate funds to carry out their operations.

The Bill proposes to remove the voting by delegation in the Senate as a consequential amendment flowing from the proposed repeal of Article 123.Clause 53 of the Bill proposes to provide for an Act of Parliament to establish a county assembly fund as one of the funds in a county.The Bill proposes the establishment of the Ward Development Fund. The Ward Development Fund shall comprise at least 5% of all the county government’s revenue in each financial year and ensures equitable distribution and development in the wards of money allocated or collected by the county government.

Ensuring all the people of Kenya benefit from economic growth

The Bill seeks to amend Chapter Two of the Constitution on formative aspects of the Republic to address regional integration, cohesion, shared prosperity and the centrality of the economy. The aspiration is to enhance Kenya’s standing and leadership in the region and to balance production and sharing.

The draft law  proposes to insert a new Article 10A that will recognise integration and cohesion of the eastern Africa region and Africa as integral towards achieving national economic goals. The provision obligates the State to take policy and legislative measures for the attainment of this ideal.

The Bill also proposes to insert a new Article 11A on Economy and shared prosperity, into the Constitution so as to anchor the aspiration of a new economic model based on value creation and that provides equitable opportunities for all the people, promotes industrialization and supports small and micro enterprises.

Fortify national ethos by specifying the responsibilities of citizens

The Bill seeks to amend Chapter Three of the Constitution on Citizenship to introduce a new Article on the responsibilities of a citizen to enhance patriotism and set out the duties of a citizen to the country and to fellow citizens.

The Responsibilities of a citizen are going to be introduced into the Constitution to inculcate virtues and engender the principles of national ethos, comprising the spirit of oneness, honesty and integrity and to set out moral principles to be adhered to by every citizen. The responsibilities include the duty to promote harmonious living with other citizens, to pay taxes and contribute to national development, among others. This Article seeks to give life to the words of our national anthem that when the individual thrives, the country thrives.

The Judiciary

The Bill seeks to amend Chapter Ten of the Constitution on the Judiciary to provide for more transparency in the judicial processes. The proposed amendments provide for the finality of the decisions of the Court of Appeal in petitions concerning an election and limits the tenure of the president of the Court of Appeal and High Court to 5 years. The amendments further provide for the tenure of the Deputy Chief Justice and aligns it with that of the Chief Justice. The Bill further seeks to introduce the Judiciary Ombudsman as a non-voting member of the Judicial Service Commission.

The amendment provides the qualification of a judge of the Supreme Court to be 20 years, a judge of the Court of Appeal to be 15 years and that of a judge of the High Court to be 10 years.

The Bill also proposes to provide that the Judiciary Ombudsman may initiate a motion to remove a judge from office on account of complaints received from the members of the public. This enables the Judiciary Ombudsman to prosecute complaints received against a judge in the Judicial Service Commission.

The Bill proposes to establish the Office of the Judiciary Ombudsman which shall be responsible for handling complaints on the judicial process from the members of the public. The Judiciary Ombudsman will be a non-voting member of the Judicial Service Commission. The amendment further provides that elected advocates in the Commission shall not practise in the courts and tribunals in order to minimize potential instances of conflict of interest.

Strengthening accountability on public resources and the fight against corruption.

The Bill seeks to amend Chapter Twelve of the Constitution on Public Finance to streamline various public finance principles and processes to promote efficiency and ensure expenditures are directed to maximise utility.

The proposals promote the actualization of the rights guaranteed under Article 43 and strengthens devolution.

The Bill provides that where any revenue sharing in the Constitution is to be based on audited accounts and the National Assembly has not approved such accounts, the most recent audited accounts of revenue submitted by the Auditor General shall be used as the basis of revenue sharing.

Clause 50 of the Bill proposes to expand the criteria for determining equitable share to include the need to eradicate corrupt practices and wastage of public resources the need to ensure the attainment of the economic and social rights guaranteed under Article 43 and ensure the average amount of money allocated per person to a county with highest allocation does not exceed three times the average amount per person allocated to a county with the lowest allocation. 

The Bill also proposes to increase the lifespan of the Equalisation Fund from 20 years to 30 years from the effective date. It also inserts the Constituencies Development Fund into the Constitution to anchor the Constituencies Development Fund, which shall be used to facilitate the performance of national government functions within the constituencies.

Clause 56 of the Bill proposes to mandate the Controller of Budget to authorise the withdrawal of up to 50% of the minimum amount of the equitable share guaranteed to county governments, where the County Allocation of Revenue Act for a financial year has not been passed by Parliament before the beginning of that financial year.

The Bill proposes to free the preparation of county annual budgets from being based on the Division of Revenue Bill. This is in light of the fact that a county government can prepare its budget based on its own sources of revenue.

Clause 60 of the Bill proposes to shift the approval of the Controller of Budget from the National Assembly to the Senate.

Privacy and Data Protection

The Bill seeks to amend Chapter Four of the Constitution on the Bill of Rights to provide a constitutional underpinning for privacy of personal data of citizens as an emerging area in human rights owing to technological advancement. The Bill proposes to incorporate the right for the protection of personal data of citizens. The proposed amendment protects personal data of citizens in view of the advancement and adoption of digital technology by a large percentage

of the population and boosts the taming of surveillance capitalism.

Youth Commission and the Police

The Bill proposes to amend Chapter Thirteen of the Constitution on the Public Service to remove the national security organs from the ambit of the Public Service Commission.

The Bill proposes to establish and provide for the functions of the Youth Commission to, among others, promote the implementation of the rights of the youth under Article 55.

The Bill proposes the inclusion of the Prime Minister as a member of the National Security Council. It also proposes the inclusion of the Directorate of Criminal Investigations as a third arm of the National Police Service. The amendment further provides that the Directorate of Criminal Investigations shall be headed by a Deputy Inspector-General.