National Council of Churches of Kenya (NCCK) Views on the Harmonized Draft Kenya Constitution: Kenyans, Build Consensus Genuinely

I. Preamble

The Executive Committee of the National Council of Churches of Kenya has met here at Jumuia Conference and Country Home, Limuru, from 30th November - 3rd December 2009. In this meeting, we have keenly studied and reviewed the Harmonised Draft Constitution published by the Committee of Experts.

In these discussions, we were guided by the words of Nehemiah 2: 17 which says "Then I said to them, "You see the trouble we are in: Jerusalem lies in ruins, and its gates have been burned with fire. Come, let us rebuild the wall of Jerusalem, and we will no longer be in disgrace"."

Similarly, the fabric of the Kenyan society has been destroyed and weakened greatly over the decades, and Kenyans are convinced that a key pillar in repairing it is by putting in place a new constitutional order.

We are therefore grateful to God that the Harmonised Draft Constitution has been published and released to the public for discussions and debates.

Having considered the provisions in the Harmonised Draft Constitution, we propose the following principle changes to facilitate the reconstruction work intended to be achieved through it

2. System of Government

In our memorandum to the Committee of Experts of 14 July 2009, we noted that the two systems of government which Kenyans could choose from were Presidential and Parliamentary. Both systems have their advantages and disadvantages.

What we have found to be unacceptable is a hybrid system. Kenyans have experimented with a hybrid system in the past with disastrous results and are now seeking to change it.

We challenge the Committee of Experts to be bold and present to Kenyans a pure system that is workable rather than the system they have proposed in the Harmonised Draft constitution.

This proposed system of government appears more-to serve political expediencies than giving our nation a fresh start.

Whichever system Kenyans choose, it should have either of the following characteristics:

2.1 Parliamentary System

i. Parties would present lists of preferred Members of National Assembly and the party leader who would be their candidate for Prime Minister to the electoral commission six months prior to the election date

ii. Voters would vote for parties, not individuals

iii. Seats in Parliament would be allocated proportionally based on the number of votes the party received in the elections

iv. Members of National Assembly would not represent constituencies but their parties

v. Limit the terms of service of the Prime Minister to two terms

vi. Constituencies shall be abolished to enable Members of National Assembly to serve the entire nation

vii. This will ensure justice in representation and help the different ethnic communities come together

viii. There shall be a clear separation of powers and meaningful checks and balances between the Judiciary, Legislature and Executive

ix. The leader of the party or coalition with an absolute majority in number of MPs will be appointed the Prime Minister by Parliament

x. Cabinet Ministers would be appointed from within the National Assembly

xi. A ceremonial president if necessary would be elected by Parliament, that is, a combination of the Senate and the National Assembly

2.2 Presidential System

i. The President is elected directly by the people through universal suffrage

ii. The President will need to achieve an election threshold of 50% plus one votes and 25% votes in majority of the devolved units

iii. The President shall have a running mate who shall be his or her principal assistant

iv. There shall be a clear separation of powers between the Judiciary, Legislature and Executive The President and his or her running mate shall not be Members of the National Assembly or Senate

v. Cabinet Ministers and their deputies shall be appointed from outside of but approved by Parliament

vi. The President shall be subject to a raft of checks and balances by other institutions to enhance accountability and transparency

viii. If there is need for a Prime Minister, he / she would be appointed by the President ind approved by Parliament and would not have executive powers

3. Devolution

We in the National Council of Churches of Kenya appreciate the chapter on devolution.

However, we make the following proposals:

i. That there be two levels of government, national and county

ii. The counties should be adopted from the 46 districts identified in the Districts and Provinces Act of 1992.We find any other figures arbitrary and without objective basis

iii. The county governor and his / her deputy will be elected directly by the people and will need to achieve an election threshold of 50% plus one votes

iv. Remove the Regions since they will have no significant role to play

v. National laws shall supercede county laws

vi. The executive and legislative functions at the county level should be separated just as they are at the national level.

vii. Technical competence, integrity and moral uprightness shall be the bedrocks for effective service delivery, with the County Assembly providing oversight

4. The Legislature

The provisions in the Harmonised Draft Constitution, if adopted as they are, would result in a situation where Parliament was virtually unworkable with continuous conflicts between the Senate and the National Assembly.

To remedy this, we recommend amendments to provide that the Senate be the Upper House which approves the laws from the Lower House.

The National Assembly as the Lower House would have mandate for originating legislation.Their roles would also be separated to be as follows:

4.1 Senate:

i. To check the National Assembly

ii. To check the devolved governments

iii. To protect the interests of the devolved governments

4.2 National Assembly:

i. To check the Executive

ii. To make laws

iii. To play a watchdog role

The Senators should be elected directly by the people in the county, and should be required to report back to the County Assembly every two weeks.

This will ensure that the synergy between the Senate and the counties is real.

5. The Judiciary

We recommend that the proposed Constitutional Court be done away with since the duties it was expected to play can be undertaken effectively within the established judicial system.

6. Kadhis Courts

The Kadhis Courts should be removed from the constitution in total. This is because their inclusion:

i. Contradicts the principle of equality of all religions

ii. Contradicts the principle of separation of state and religion

iii. Contradicts the principle that the state shall treat all religions equally

7. Other Proposals

Having extensively considered the Harmonised Draft Constitution, we further recommend the following amendments are made:

i. Clearly indicate the international boundaries of Kenya rather than leaving it to international law

ii. Clearly state that life begins at conception and ends at natural death

iii. Clearly state that children once conceived have a right to be born

iv. Clearly define family to be constituted between an adult man and adult woman

v. Clearly state that a person has a right to propagate their religion

vi. Clearly state that no person shall be hindered from converting from one religion to another

vii. Clearly define marginalized groups as well as minorities, and state when the state of marginalization will be deemed to have ended

viii. Remove the limitation of the Bill of Rights to persons professing Islamic faith

ix. Provide for the youth as a sector in their own right rather than lumping them together with persons with disabilities in the various provisions in the draft constitution

8. Message to the Committee of Experts

Kenyans have been seeking a new constitution for more than twenty years, and they are convinced that this is the opportune moment for this.

However, they will not accept just any constitution draft you produce.

The draft taken to the referendum must be one that fulfills the aspirations and dreams of Kenyans, or else they will reject it and restart the process all over again.

Further, we remind you that you have a duty to ensure that all Kenyans read the Harmonised Draft constitution.

This would allow them to make recommendations within the time frame provided.

You are therefore obliged to move with speed and ensure that the drafts are made available throughout the country.

9. Message to the people of Kenya

We encourage all the people to read the Harmonised Draft Constitution and make recommendations for its improvement.

Further, they should communicate their views and opinions to the Committee of Experts within the time allocated so that the Committee captures their aspirations and wishes.

10. Message to Members of Parliament

We in the National Council of Churches of Kenya call upon Parliament to consider:
One, amending the Constitution of Kenya Review Act so as to extend the time allocated for public debate and submission of the people's views on the Harmonized Draft Constitution for another 60 days.

It is important to remember that the last constitution review process was rushed and thereby aborted.

Two, extend the time provided for civic education on the final draft to a total of 90 days.

Three, amend the Constitution of Kenya Review Act so as to facilitate presentation of two drafts during the referendum whose provisions would be harmonized except for the chapter on system of government one would present a pure presidential system while the other would present a pure parliamentary system.

Kenyans would then choose between the two, without the risk of falling back on the current constitution.

II. Conclusion

We conclude by urging all Kenyans to continue participating in the constitution review process by making recommendations on how the Harmonised Draft Constitution can be improved to serve the interests of all Kenyans.

On our part, we have prepared a detailed memorandum with our recommendations that shall be presented to the Committee of Experts.

We also urge the Committee of Experts to listen keenly to what Kenyans have to say about the Harmonised Draft Constitution.

We wish all Kenyans a blessed, joyful and secure Christmas and a prosperous new year.

May God bless Kenya.

Signed on this 3rd day of December 2009 at Jumuia Conference and Country Home, Limuru.

Rev Dr Charles Kibicho - Chairman

Rev Canon Peter Karanja - General Secretary

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