Download Present - Katiba Institute

CONSTITUTION OF KENYA REVIEW
COMMISSION
CKRC
VERBATIM REPORT OF
PLENARY MEETING HELD AT LEISURE LODGE
HOTEL - SOUTH COAST
ON 4TH SEPTEMBER 2002
Page 1 of 138
PLENARY MEETING HELD AT LEISURE LODGE HOTEL – SOUTH COAST
ON 4TH SEPTEMBER 2002
Present
1) Prof. Yash Pal Ghai
2) Prof. Idha Salim
3) Com. Abida Ali-Aroni
4) Com. Prof Okoth-Ogendo
5) Com. Prof. Ida Salim
6) Com. Hon. Phoebe Asiyo
7) Com. Charles Maranga
8) Com. Domiziano Ratanya
9) Com. Ibrahim Lethome
10) Com. Dr. Swazuri
11) Com. Bishop Benard Njoroge
12) Com. Dr. Nunow
13) Com. Dr. Githu Muigai
14) Com. Dr. Mosonik arap Korir
15) Com. Mutakha Kangu
16) Com. Pst. Zablon Ayonga
17) Com. Nancy Baraza
18) Com. Salome Muigai
19) Com. Prof. Wanjiku Kabira
20) Com. Zein Abubakar Zein
21) Com. Isaac Lenaola
22) Com. Isaac Hassan
23) Com. Alice Yano
24) Com. Riunga Raiji
25) P.L.O. Lumumba
-
Chairman
Vice Chairperson
Commissioner
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
Commission Secretary
Drafts Team
Prof. Crabbe
Margaret Nzioka
George Nagota
Verbatim Recorder
-
Hellen Kanyora.
The meeting started at 9.00 a.m. with a word prayer by Commissioner Salome Muigai
and Prof. Yash Pal Ghai Chairing.
Page 2 of 138
Prof. Yash Pal Ghai: I believe you may be ready we will distribute that then we will
resume our meeting. Let us call the meeting to order and I would like to ask Com.
Salome Muigai if you would say prayers today.
Com. Salome Muigai: Let us pray. We come before you Almighty God with thanks
giving and praise. We thank you for like, we thank you for all that you have done, we
pray Lord God as we go through this very challenging moment that you may give us
wisdom, you may give us discernment and all that we need to have on order to see this
done through. This we pray thy name. Amen.
Prof. Yash Pal Ghai: We have just distributed the summary of recommendations on the
Electoral System and Process, you remember that Commissioner Mutakha Kangu
presented the paper of Committee 2 yesterday which we had a general and very useful
discussion and we agreed to come back to the paper once we have the paper which draws
out the more of the people hearts and their recommendations. That is the paper that you
have now and I will ask Mutakha Kangu to introduce the recommendations so that we
can proceed to making our recommendations of the plenary on this matter.
THEMATIC TASK FORCE GROUP II
Com. Mutakha Kangu
-
Convener
Com. Prof. Ida Salim
-
Member
Com. Bishop B. Njoroge
-
“
Com. Alice Yano
-
“
Com. Mutakha Kangu: The issue Mr. Chairman as we said yesterday we were trying to
refine those recommendations to make them arise from the views of the people, so if you
look at the first few pages you will notice we start with views of the people and then
follow with the recommendations, I think to save time, we will just go stage by stage.
Page 3 of 138
The first recommendations we have is concentrated on the Electoral System and we are
saying that a grater number of Kenyans were concerned about poor representation of
certain marginalized groups, so our recommendations are saying that we consider that
rather than reserved seats for these marginalized groups, we recommend a mixed member
proportional system if well structured will address the concerns raised by these groups.
We recommend that subject to the recommendations on evolution, the mixed member
proportional representation system should apply at both the national level and the lower
level or levels of government.
That under this system, we should retain the 220 constituencies through which
representatives shall be elected directly by the people and also introduce an additional 90
seats for proportional representation and that political parties will then be required by the
Electoral Law to place into their list one third of the candidate that is to nominate one
third of their candidates as women, the one third rule is for the constituency seats and we
also recommend that for the proportional seats, the parties should place in their list a
gender ration of 50, 50. So that we are talking of 90 seats, each party will produce a list
that has at least 45 women. We are also recommending that in preparing that list, we
should use the zip system that will ensure that women are properly covered in the list or
they are put high in the list. We are also recommending that the current position of
Nominated Members of Parliament should be abolished.
Those are the recommendations we have on the system, may be we can deal with that
before we go to the next one.
Prof. Yash Pal Ghai: Any comments.
Com Mutakha Kangu: Please.
Com. Bishop Njoroge: Among the 45 that is listed there is 45 or less, then they are the
ones to include the disabled men and the youth and if they are women, within the zip will
also include disabled women and girls.
Page 4 of 138
Com. Dr. Nunow: Thank you Mr. Chairman. I think the paper is in a better form
because the people’s views are now clearly enumerated but regarding the mixed member
proportion that is recommended, once major concern given our current political scenario.
It is a common knowledge that the political parties we have in this country are tribal and
virtually every tribe in this country has a political party and this in my opinion will not
necessarily mean those that will not affirm their way through into Parliament.
If for
instance a political party derives its strength from a given tribe or a group of tribes then
the requirement of those it is supposed to include to be half women, half men and include
disabled, youth and other disadvantages groups, we will not necessarily correct vender
generalization that will be in place affecting those few tribes that have no political parties
and I think will perpetuate tribes trying to form their own parties with a view to taking
advantage of this kind of representation. So that if there is a political party and it does
not get direct constituency MPs, it will try to get some given the national group
percentage or something like that. As the group given a thought to these realities that
emerge that we are not only increasing the number of seats but also trying to ensure that
these seats do not necessarily propagate the existing legalization and the existing
polarization or political parties based on tribes as a host. This is my concern, I think we
need to give more thought into how we can redress, enhance and given more power to
tribal polarization of political parties by trying to produce this king of process.
Com. Raiji: Thank you Chair, my concern is with the recommendation, bullet three that
we retain current 210 constituencies. We received a lot of submissions from virtually
every constituency on the consistency and the un proportionate nature of the current
constituencies, so that it fit to say that many Kenyans are dissatisfied with the present
boundaries of their present constituencies and I would recommend that as a temporary
measure we retain the present constituencies but I would want us to have some provision
for review of the constituency based on a more objective criteria and devoid of political
interests and imaginations that have let to the creation of some of them. In particular, Mr.
Chairman, there is an issue we have to address under which we received tremendous
amount of submissions, namely whether to base on population, whether to base on
Page 5 of 138
geography or a combination of both and so forth and I think it was the feeling of most of
the Kenyans that they are unhappy with the present constituencies, it is practical to retain
them on a temporary basis pending review of the constituencies and I would recommend
that we do not make the current 210 constituencies a permanent basis but basically as a
starting point until we resolve the issue in some form of a Boundary Commission or such
like structure.
Prof. Yash Pal Ghai: Zein.
Com. Zein Abubakar: Thank you Chair, it is true what Commissioner Raiji is saying
that we received many submissions of Kenyans who were dissatisfied with the current
structure of the 210 constituencies but in my own analysis. There was a clear difference
when we went to areas which have fragile environments and tended to be expansive and
with difficult geographical terrain. The submissions that we got including a place like
Saikuru in Eastland’s, the submission that we got was that you should take into account
the geography and population and where we went to places where there was a high
concentration of population, people tended to say that we should give more weight to the
population. So there was a clear distinction and this was a very heated debate in some
places. Again I am happy that John Smith had made the reference that it will also depend
on the structure of government because there are some people who are even making
submissions that we should weight the population Lower House and we should weight
geography in the Upper House, they were suggesting a bicameral System. Some of these
things will need to be resolved not today but when we have submissions from the other
groups, but again of course in relation to places and examples of places where they have
a mixed MMP System and the Federal Germany, the Republic of Germany now is the
one that people use as an example. That system has true threshold criteria for the
application of the MMP. For example, they say that any party which does not get 5% of
the national vote will not qualify then to have a seat and part of it is to make sure that the
outcome has a national appeal or has national support and in a sense linking my views to
what Dr. Nunow was saying. It is very interesting now that although the Act, defines
diversity in latitude, the discussion we have had so far today, the Commission defines
Page 6 of 138
diversity narrow sense and I think Dr. Nunow only made reference to ethnicity. Many
commentators have observed that our elections, the least common denominator of how
people cast their votes is ethnicity and yet ethnicity is not identified here as a factor and
many submissions of Kenyans made to us was that, yes people set political organizations
on ethnic lines, yes. People vote on ethnic lines, but as a nation we should try to establish
political parties which have a national outlook. That is what the submissions of the
majority of Kenyans if I can summarize them at least from my experience. Majority of
Kenyans are saying, establish political parties which have a national outlook and my
understanding of that concept is not national outlook of its membership only or national
outlook of only those who offer it but national outlook of those who represent these
political parties in National Assemblies or any organs of government.
Therefore, if I am going to support this MMP structure, normally people say the devil is
in then devil is in the detail, this group which has worked very hard when its first
recommendation said, put a caveat and say “which if well structured” and I suggest Chair
that well structure is where the devil is going to be, we can even pass it now but I want
this well structured defined to the extent that in interpreting diversity. For instance, I
would like to hear those who were working on political parties when they come, will they
allow political parties to be established on account of faith? We have an example in
Kenya where there was an Islamic Party of Kenya which applied to be registered. Are
we going to allow that? And if the reasons which John’s group give which if you read
the background paper in terms of proportion in the presentation. They say, when you use
proportional representation they can enhance ethnicity in this particular case in Kenya
and religious tension in this particular case but both views are not transported in the
conclusions which are made and I wonder, why not? Therefore I would suggest that we
need to be careful now, when we talk about minorities, what does that mean? We have
kept on talking about minority but what does that mean in Kenya? We have talked about
marginalized, what does that mean? For instance, if we were to be more candid and talk
about election trends in Kenya. In the 1997 election KANU, the ruling party did not get
seats in Central Province, will then the MMP insist that in their list, they should have
people nominated from Central Province. We know for instance, DP, majority of its
Page 7 of 138
legislatures are from Central Province happen to be Kikuyu will the list allowing DP to
nominate think of filling the gaps on ethnic counts. So it will depend on each party, this
will vary from each party to the next and I will suggest here that we leave this particular
proposal and not say anything in concrete terms, accept it in general terms but link it with
the submissions of political parties and devolution of power. Thank you Chairman.
Prof. Yash Pal Ghai: …
Com. Maranga: Chairman, I must make general comments on the recommendations
which have been presented under normal circumstances or under ideal conditions or
situations, then MMP system will be the best but Mr. Chairman given the issues of
ethnicity, the issue of political parties and Mr. Chairman, there is the issue of independent
candidate. What about if the people who are presenting themselves to run for Parliament
most of them will decide to be independent candidates and make a bigger section of that.
It seems like this group did not take care of that. What about if we have so many of them
in Parliament may be 50%? Mr. Chairman, that is something which must be addressed.
May be the Chairman, given that there were many recommendations that we need to
increase the constituencies, Mr. Chairman, I would have been nice that we give room
where for example we can give allowance. Say okay, we are adding 10 constituencies so
it becomes 220 then you reduce the number of seats for the ones who are going to go in
for proportional representation.
Mr. Chairman, my own view and the way I heard
Kenyans say is that these particular seats should go for people who are professionals in
given areas and also marginalized in many other ways. Either in forms of tribes or ethnic
communities which are marginalized for example, the Ogiek and everybody else, that
kind of group, women, disabled persons and a few professionals to beep up the gaps
which have been left in Parliament. So, Mr. Chairman I think if we go under that kind of
direction, we might be able to come up with a solution but Mr. Chairman if we are going
to leave it to the political parties, we are going to make a big mistake and I have been in
that category of group of people, I know how people are nominated. Mr. Chairman
sometimes it is not merit which gives somebody that position it is who and who you
know within that political party. So, Mr. Chairman, I want a system the way Zein is
Page 8 of 138
saying which is water tight, we must give it clearly how the nomination should be done?
Who should quality and how is it going to look national in many ways? Because we have
many nations within Kenya, that is what I would say because all these tribes, ethnic
communities are nations in their own rights. So Mr. Chairman it will be nice to have this
thing done well, I have seen the recommendation but I think if we want to approve them
the way they are, then it is not going to help us. We need to be very clear even on this
50,50 where you say 50% women, that is where you have the disabled and so on, it will
be nice to break down that percentage. What percentage of disabled persons are going to
take those seats in form of women or men and so on, so that the percentages are very
clear. Otherwise, if you group them together, the able bodied women will take away all
the positions. Thank you.
Prof. Yash Pal Ghai:
Com. Githu Muigai: Thank you Mr. Chairman. I would like John Kangu and his group
to clarify something for me. I would appear to me that bullet number three and bullet
number six may have some inconsistence but on the other hand I may be wrong. I would
appear to me that bullet number four, political parties would be required to place one
third of their candidates to be women on the direct election party list and 50% on the
proportional representation list.
Bullet number six however says, political parties shall nominate a third of women for
direction election and number seven says, candidates must be nominated on a gender
ration of 50,50. I may be wrong, I am not good in figures and my numerous is worse off
than my literacy which is problem but I would like a clarification.
Secondly, I have very little difficulty with an argument that says, “let us place a third
women on the party list”. In my view it is logical and sensible and we have considered
this as a reasonable affirmative action ration but I have expressed in private to my good
friend Prof Kabira. I have very serious difficulty where that number is now raised to
50% of the seats because then I am not able to understand the rational because the effect
Page 9 of 138
of that in my view is to distort the electoral process in a manner that can no longer be
justified by an affirmative action arguments and I would like to hear something from my
friend John Kangu and his Committee.
Finally Mr. Chairman, whereas I hear the argument made by Dr. Nunow, Dr. Maranga
and my friend Zein Abubakar about trying to control or rather tying to regulate who gets
on the party list especially bearing in mind that parties may have an ethnic colour or
colouring but I would suggest that there are fundamental democratic principles that we
cannot override, that we can modify but that we cannot approgate fundamentally. A
party constitutes itself on the basis of a manifesto and a programme. It then sells itself to
the people as such, people then vote for it, own would assume on the basis of its
manifesto and on the basis of, if you may protect me Mr. Chairman from what I believe is
one of my committee members.
Com. Zein Abubakar: Sir, you have tickled us I must…
Com. Githu: I think in that case you are allowed to smile.
It is a clear case of insubordination that I will deal with in my Committee. Mr. Chairman
let us take if we may the Kenya African National Union, a political party in power in this
country for the last 40 years. This party as it would appear to me, has election after
election presented itself to the population and held itself out as a party of national unity,
now we need not go into whether that has been the case or not but if we are to assume
that that is so, then it would appear to me that at the point in time when we request that
party to draw a party list, there are two considerations.
It must be able to respond to the people who elected it in the first place, making it a
parliamentary party that can have a slate. The Constitution cannot substitute political
sense and political actions for a constitutional criteria that is not only modifying but
approgating the basis of party following. In my view therefore, it is quite right for us to
say for a political party, when you prepare a slate, you must have women represented in
Page 10 of 138
your party. It is sensible, we are modifying the operation of the democratic rule because
the rule is inefficient.
We can say, you must have persons with disabilities, it is
modification. We can say, you may bring to the National Assembly, professional persons
who are able to raise the level of debate, that is the modification. I doubt for myself Mr.
Chairman that we can write into the Constitution, you must put in your slate the Digo, the
Giriama, the Kikukuyu, Kamba, Embu, Meru e.t.c. That is a political issue that must be
sorted out in the market place of political competition. That is all I wish to say.
Prof. Yash Pal Ghai: Go ahead.
Com. Lethome: Mr. Chairman, thank you. In my view I think there is an overwhelming
view that was left behind by whoever prepared the paper. At least wherever I went, I
heard people talk about the counting of votes to be done at the polling station. I do not
know why it was not captured.
Prof. Yash Pal Ghai: That is coming on later.
Com. Lethome: Oh, it is coming on later.
Speaker: Mr. Chairman I can make this comment before …
Prof. Yash Pal Ghai: Okay, just let me finish with everybody. Okay, let us just have a
short break, I do not mean a break as a subject word but we have Hassan, yuko wapi?
You are in my list of….John feels he would like to have an opportunity to respond to
some of these points at this stage and since a number of points that have been made, I
think it is fair to give them the chance but before that let me also make some comments
of my own.
Com. Githu’s point to begin with about how far you can force parties, electors or a detail
on the way you can structure the system that they have to vote of one Kikuyu and one
Luo and so on. While the Constitution can do that, I believe the Constitution can provide
Page 11 of 138
an incentive for parties to appeal across the board to broaden their appeal beyond their
own ethnic groups and the question is whether this particular proposal does that. My own
view is that the system we have, does not encourage appeal beyond the ethnic group but
does this do so? I believe it does do so because it does in the sense that it awards political
parties which can ensure broad appeal across the country so, they may not be able to win
a particular constituency but it gives them an incentive to campaign and lobby in areas
where they cannot expect to win a seat in direct voting but if they accumulate enough
votes in other areas, they will get some seats from the party register. So KANU at the
moment or recently might not have had not real incentive to campaign vigorously in the
Central Province knowing they would not actually get the person elected but this rule will
give the an incentive to campaign in the Central Province because even if they get 10% of
the votes in the Central Province, this will be reflected in the overall seats in the
Legislature.
So, I do believe that this system does encourage parties to develop their appeal across the
country. I believe with Zein that that particular incentive will be stronger if we have
some kind of threshold, so then you would have to campaign vigorously across the
country in areas where you do not except to get a seat but you want to get the number of
votes. So, may be we can consider a threshold, by which we mean that a party will not
benefit from the proportional list unless it can show 5%, 3% or whatever seems to us
appropriate vote across the country. Most systems do have a threshold and may be a
threshold of 5%, may be reasonable, otherwise also if you do not have such a threshold
there is a tendency for unproportional system to have too many parties but a threshold
means that the parties have to work together or small groups of their own cannot expect
to get 5% for a national basis therefore they will tend to merge parties. I can give you an
example of the election in Lusuthu about two months ago, which was for the first time
held on the basis of MMP.
The opposition party did not get a single member on the
direct election basis but it got 20% of the national votes and therefore it got 20% of the
seats of the Legislature. So, it does I think provide protection of that kind and I do
believe that it will provide an incentive for political parties to develop their support
beyond their own geographical or ethnic areas because the more they can spread their
Page 12 of 138
support, the more votes they can get elsewhere, the better representation they will get on
the party list.
Also I believe that if party lists are used and political parties will have an incentive to
bring on the parties list people from the small groups because they will want to get the
votes from the smaller groups. They will get the votes from their own groups anyway
especially at the constituency level but they would also want to get votes from the smaller
groups in the particular areas and therefore they will have some incentive to bring on
their party list people from the smaller groups. So, I think it does have more of an
inclusive effect that way. May be these are the points I want to make at this stage, I do
think that the party list should be used to secure a certain minimum of women candidates,
we have discussed 30% or 50% but it seems to me that, that would be at least in the
beginning and the first few years an important way to bring women in because our
history has shown that relying on the single member constituency first our supposed
system has not produced representation for women. We are perhaps the worst country in
the world for women representation and we have to take some very positive steps to bring
them in. Over to you John.
Com. Bishop Njoroge: I just…
Prof. Yash Pal Ghai: Sorry!
Com. Bishop Njoroge: What I just wanted to know, is that can that be open ended in the
sense that when time comes and the women can be able to participate like in Sweden
where now women are majority in Parliament. So can we leave this party nomination at
a certain percentage to women open ended in the Constitution or is it going to be given
time where it will lapse?
Prof. Yash Pal Ghai: That is a good point but now let us come back to the…
Page 13 of 138
Com. Mutakha Kangu: Thank you Mr. Chairman, I wanted to make a few comments
that may be able to guide the discussion.
1. To mention that this particular group is the one that is also addressing the question of
political parties and we propose to circulate our documents on political parties latest by
2.00 p.m. today so that probably it will be discussed tomorrow and it should help
members to see some of the linkages we have made between the electoral system and
political parties.
2. When we presented the paper yesterday, we said that the electoral system and process
is fairly a large area and in fact yesterday we broke it up into 3 major parts and if you
look at the document here, we are dealing with the views of the people and
recommendations on specific areas and some of the concerned members have expressed
about this particular potion we are debating will emerge in the other parts we are going to
look at and of course we concede that listening to members we realize that may be some
of the recommendations should have come in this particular part but that is something we
will be able to streamline but some of them are yet to come in the other parts that we are
going to discuss so that we will be able to see what comes out.
Now, on the issue of women if I start with my friend Githu, I agree some of the bullets
seem to be a repetition but what we are saying is that there will be two categories of MPs,
those who will be elected to represent geographical constituencies 210 and we are saying
political parties in nominating candidates for those particular positions, they should put at
least one third of their candidates as women but the other category of proportional
representation which we are proposing should have 90 seats. We are saying, it is that
category under which each political party should bring a list that is shared out between
men and women on a fifty fifty basis so that we are not actually giving women a lot of
seats. What we are saying is that out of 90, the women may have a chance of getting 45
and the background against which we came up with this decision was, we considered the
Ugandan approach which has a women constituency per district and we asked ourselves
whether we want to go that way or not and I am sure the women will feel, on that score I
Page 14 of 138
was a bit unfair of them because if we go on that basis, then we will be saying, we are
assured of about 70 women in Parliament. The issue that was of great concern to us was,
do we want a Parliament that will go beyond 300 MPs or do we for this moment want to
restrict it to 300 and if we restrict to 300 then we already have 210. What are the
mechanisms of saying that we reduce the 210 to increase the proportional representation?
What are going to be the political implications?
I am imagining us waking up today and
saying, we have abolished Mvita Constituency, you can be sure that you will be in big
trouble. So we thought that we did not tamper with the existing 200 constituencies by
way of reducing them but at the same time we thought we should not put proportional
representation beyond 90 and that is why we said, then the easier way to handle the
problem of our women is at least to give them a half of this 90. That is how we arrived at
that decision and we were saying, if we had 45 women in Parliament, even if one third in
the constituencies they do not win at least we will be assure of 45 and we think as checks
and balances, 45 will really scare these men and we will have things moving. I think that
makes sense. Those are the comments we wanted to make the rest will emerge as we
discuss the other aspects.
Speaker:
That you Mr. Chairman.
I support the MMP system which Kangu’s
Committee has proposed but I would like to go back to the argument which Zein has
raised as compared to the words of Dr. Githu Muigai, both men whom I have held with
high esteem but I think Mr. Chairman, when we went to collect their views expressed a
lot of concern about the fact that most political parties were tribal. That is a fact you
cannot avoid or pretend to ignore and that we should initiate measures to try and enhance
unity of the country. That is why I feel that, while Dr. Githu’s views on trying to restrict
aeropauses on the party lists are very much derisory, they do not reflect the views of the
Kenyans and that perhaps Zein is more in line because we have heard when we went to
the field. I therefore Mr. Chairman very much would like to support the proposal you
made that we should put in some thresholds for this parties before they are allowed to
bring the list. I am not sure whether the list will be prepared before the elections or after
the elections?
Page 15 of 138
Prof. Yash Pal Ghai: The idea will be to prevail and also the list should be published.
Speaker: Actually, I think that will be a very big step to try and restrict the political
parties in a way because they will make sure that they try and have that national outlook
or character that we are all trying to look for as part of the threshold that we want to
maintain. They should be published before the elections so that they are know these are
the people, that will be a very big improvement.
On the issue of constituencies, I do not think the issues raised by Com. Raiji on
boundaries are, we have had them in different form from different people and I think
these questions on the boundary of the number of constituencies became more argued
after the birth of the multi politics in Kenya.
I think it is because some of these
constituencies were there from 1963 up to the time we went into multi party politics but it
only became more polarized because of the voting pattern and that is why people were
now pointing out constituencies in their submissions. Although those concerns were
raised, I do not think there was a majority view of Kenyans that we should abolish the
current processes as they are, that I think did not come out from the Kenyans …we
should retain the current constituency boundaries as they are subject to the caveat which
Com. Raiji had proposed that may be we would have some sort of a boundary
Commission or some other mechanism to look into what the Kenyans have raised but I
think we should retain them as they are and add these of 90 seats to be able to address
favorably the current measures which are raised by these problems. Thank you Mr.
Chairman.
Com. Prof Okoth Ogendo: Chairman, mine is a very short comment.
I would want to see this part of the recommendation giving us three things.
1. Principles that ought to go into the Constitution.
2. Those that ought to go in a Electoral core
Page 16 of 138
3. Those that are strictly transitional, for example, when the recommendation is
saying that we should retain 210 constituencies.
That is not a principle. That may be a transitional mechanism that we are dealing with, I
think what we should talk about is how we arrive at whatever number of constituencies
that we think this country ought to be divided into and I noticed that on page 12 there is
an attempt to deal with the question of the limitations of constituency boundaries and in
discussing that, I hope we will take a very strong representation that we found
particularly in Northern Eastern Province and in North Eastern on how to balance to
geography with demography. For example, North Pole which is the largest constituency
in the country has 14,000 square miles.
The smallest in terms of size, constituency is
Makadara, I think which has something like square miles. If you look at population, the
largest constituency which as registered voters is Embakasi, which has close to 200,000
registered voters. The smallest is not Ijara but one of those North Eastern constituencies
with about 7,000.
So, one has to balance this and I have said this again that it is not a simple questions of
simply saying as we heard in many parts of this country that we present people not
animals and that statement came with a great deal of contempt for the question of
geography and I think we can learn from Canada, Australia and from the Soviet Union,
we want to know how the Soviet Union deals with such questions.
So, what I would want to see are principles that should govern the limitations of
constituencies and that you hand the implementation of that some Commission. I would
myself take away the power to de-link the constituency from the Electoral Commission, I
would reduce it to a management, which should run and conduct elections and determine
boundaries as and when the need arises through a ADHOC Commission.
Secondly, Mr. Chairman, I think we settle for mixed member proportional representation,
we want to be clear about the principles. What is it that we are trying to cure, why are we
saying that we want to move from single member constituencies to proportional
Page 17 of 138
representation with a single member if the party, what are the values that we want to see
in the Constitution and this does not seem to have come out very clearly. It is like we are
saying, yes we have problems with single member constituency so we want to move to
the mixed member proportional representation but the actual value that we think we are
going to enhance by doing that, a lot absolutely here.
Finally, let me say something about the question of women. I studio demographer, I have
absolutely no problem with any system that would give me representation that is as close
as possible to the actual, national demographic structure and the demographic structure in
this country is 52% to 48% women, men. If you can give me an electoral system that
gets me close to that, I do not want to talk about one third, you know one women in Nyeri
of about 100 years old said who came with one third and I was sitting with Professor
Kabira and I told Professor Kabira should I tell her who did this because you are the one
who is talking about one third, she said please do not tell her this because she might kill
me. Why one third? Why aren’t talking about the actual thing, why aren’t we trying to
demographic characteristic of this country and if we thought that equality was an
important value and I have said this before and that it should be reflected in every
constitutional things we are dealing with, including political representation. Why aren’t
we thinking through a process that would get us to that level? I want somebody to
convince me why we should not be asking for fifty fifty. I want to be told why it should
be left at that and do not tell me that the principle is that let the electorates decide because
we know where the electorates does not always decide to give its retrospective.
Prof Yash Pal Ghai: Well I think let the emotional … I am going to suggest that we
could divide every constituency into two seats or two ballots one from women and one
from men and that would been the retrofire the course criteria but.
Prof. Okoth Ogendo: But let us be systematic about that. No I am not caste ring I am
simply saying there are certain values which we think ought to be reflected in the
Constitution and one of the most fundamental values I have said is equality.
Page 18 of 138
Speaker: Point of order.
Prof. Okoth Ogendo: Finally Mr. Chairman before I take the point of order we may
learn something from Apollo Milton Obote’s political polygamy I have the document in
my room, I might give it to John Kangu so that he can have a look.
Prof Yash Pal Ghai: I am going to my list and next my list is Professor Kabira.
Com. Prof. Wanjiku Kabira: I think after the Chair on Kangu I have nothing much to
add and I must admit that this has been the best session I have listened to but the last
bullet is, did we agree on adding ethnic minorities?
Prof Yash Pal Ghai: We have not agreed on anything yet we are just having a general
debate and I will try to put it up in a few minutes.
Com. Prof. Wanjiku Kabira: Okay, I do not think I can do anything better than what
was done by those three gentlemen. Thank you.
Com. Prof. Wanjiku Kabira: Then the Bishop.
Com. Bishop Njoroge: Mr. Chairman I want to emphasize the recommendations that
my group has come with, I think we have a problem here. Many many years women did
not used to vote and then because of the civilization, the development within
communities it was found time had come for women to vote, any change must go
together with the pace of people thinking, people of change and if we do think that as
drastic it will be very detrimental to what we are trying to do. I think we start somewhere
where the document has said but disregard what Professor Okoth Ogendo said because
we are not making this Constitution in a vacuum, we are making it within a community
that is somewhere within its own Constitution as oppressions.
Page 19 of 138
Prof Yash Pal Ghai: Yes, but we also have to remind ourselves of what the review act
tell us to do. It was very clearly gender parity, gender equity and we think we need to…
I am going to use Raiji, Charles, Githu and then Pastor.
Com. Riunga Raiji: Mr. Chairman mine is just a clarification which if first if it covered
elsewhere then I do not have to contribute. In view of the importance that we have
attached to political parties in the recommendations here and particularly nominating the
people to appear on the proportional list. I wonder whether you have covered in the next
paper the question of internal democracy within these parties or whether it had come
here?
Prof Yash Pal Ghai: Yes it is coming. Okay, then Charles. Please all try to make your
points brief.
Com. Charles Maranga: Mr. Chairman, even the democracy in the world India does
not have that gender parity, so Mr. Chairman I want to start from that point. Even the
Supper Power America does not have that. Mr. Chairman, let us not put issues before the
National Conference which will be very contentious. Mr. Chairman, I know that is an
issue which will be contentious and the Chairman if we move the same way John says,
we do not want to touch the constituency boundaries because it is an demotivation, it is
going to be difficult issue.
Mr. Chairman the issues we want to recommend as a
Commission which we can be able to defend at all times. I that principle is agreed, Mr.
Chairman I know a number of Kenyans would say, let them go to the poll and fight it out.
So Mr. Chairman when we entrench, why we were saying one third is because, third is a
guaranteed minimum which cannot be taken away, whether they go to the polls or not
going to the polls. So Mr. Chairman, I want us to be cautious on the recommendations
we make otherwise they will bring us…
Speaker: Point of order.
Page 20 of 138
Com. Charles Maranga: Mr. Chairman I am on the floor do not allow Commissioner
Prof. Okoth Ogendo to interrupt, let me proceed. Thank you.
Prof Yash Pal Ghai: Let us have some order please, I want to make one point before I
give the floor to call for a point of order. This is a whole question of how contentious
should our recommendation be. I believe that we are not the ultimate peacemakers and
that actually gives us more flexibility than we might have.
We are presenting
recommendations based on a number of factors. To start with, the review Act itself,
exactly what people have told us, fair to your own judgment, combative experiences.
The people will have the last say through the conference and so if they do not like it they
can say not and we should accept that with very much grave as we can master. That does
not mean that we should make irresponsible statements, we have to make detrimental
judgment but I want just precisely because these things are difficult there is a reason not
to widen them. This is my personal approach but people may have different views on
this but with that I want to have a really as a point of order.
Com. Prof. Okoth Ogendo: Mr. Chairman I was going to say what you have said but
differently. We are making or we are recommending a Constitution, we can either
recommend a Constitution on the basis or we can define the floor or we can make a
Constitution that will help us do what social engineering, we can be forward looking in
the Constitution and I would want us to break new grounds if we have to and I do not
think we want to say, let us anticipate what the conservative Kenyans are going to say out
there. If we think it is right that we should break through the wall of conservatism, let us
do so.
Prof Yash Pal Ghai: All right, that is wise advice, let us go to Githu.
Com. Githu Muigai: Mr. Chairman I am in a very unusual position of having to agree
with Charles Maranga.
We are exalted by the learned Professor to break social
conservatism and breaking new ground that is very good. We must only do that if we are
sure we shall succeed. If we are not sure that we can succeed, you Mr. Chairman have
Page 21 of 138
written time without end and of course Constitutions are compromises that can be
captured in a political society. For my part, I and I do not want to overuse this word, let
it becomes my name. The bibi must be kept intact, the bibi must not be thrown out with
the bath water, I want to exalt my fellow colleagues. We have captured an important and
fundamental principle, we have captured it here without any decent whatsoever. We
must affirm the right of women not only to participate freely and fairly in elections but to
have 30% seats reserved for them. This is an argument we can sell, it is an argument we
can defend, it is an argument that Kenyans can accept. If we engage in what we are
advised is social engineering, we will be stepping into the arena of populist action that we
must reserve for politicians, we shall threaten a very fragile compromise. There are many
issues Mr. Chairman, that…sorry!
Com. Prof Okoth Ogendo: This is why we need it.
Com. Githu Muigai: And the man who taught me the politics of law, I am very
concerned that you yourself have abandoned the canons. I would say this Mr. Chairman
and I think because this is the last comment, we keep saying here when we are talking
round the table, the people told us. When it suites us, we quote what the people told us,
when it does not suite us, we as an engineering elite, a social engineering elite then
substitute our own views for those of the people. There were no places in Kenya that I
went to and I went to several, where this very radical proposal that threatens an important
principle was presented. (Murmurs) Let me finish.
Prof Yash Pal Ghai: I think you have made your point. On a point of information, I
would like to make this statement that, what has been proposed here is two things, one
that 30% of the candidates any party advances should be women, there is no guarantee
that these will be elected, they are just candidates, the only thing we are really
guaranteeing is 50% of a party list. So we are not, the end result may well be and I
suspect it will be that women with luck will be about 20% of the house.
Page 22 of 138
Com. Githu Muigai: Mr. Chairman, I would like to hope and may be somebody should
give us the minutes of our meeting on transcript on a daily basis. We passed here a
fundamental resolution less than two days ago, in which we said, as a gentle principle
applicable across the Constitution, we would have here, that is my recollection anyway.
Let me make my last point.
Com. Charles Maranga: One third.
Com. Prof. Ogendo: One third, I remember this.
Com. Githu Muigai: Mr. Chairman, I think now I do not know who to plead to for
protection because I even need protection from you. This is the time you have allocated.
Prof Yash Pal Ghai: I was going to give you a point of information, I think what you
are talking of was in reference to the composition of the independent commissions, this
we agreed was 30% formal.
Com. Githu Muigai: What we agreed on the formula Mr. Chairman is this, I do not hear
anybody here opposed to it. Wherever the question is this Constitution, wherever the
issue of gender representation arises this Commission has conceded that a third. That
was my understanding but I can be corrected but before I am corrected, let me make my
final point which is this. We are engaged in writing a Constitution but that is not to
abrogate democracy. Commissioner Okoth Ogendo has written an article in a book
where Walter Maffey explains this at great detail may be it should be circulated.
Constitutionalism was intended like equity was intended not to abrogate democracy but
to make democracy more efficient. What we are being told now, is that there is not need
for an election at any time, what we should do is to and the Chairman puts it, let us have
in every constituency 2 seats, one for men and one for women. May be as we go along
Mr. Chairman may be there will be a third one for disabled people, a forth one for youth
and a fifth one for minorities of a religious. Let us remain with principles we can we can
defend, I propose that we secure a third of the women on the party list, then secure a third
Page 23 of 138
of the women as a minimum on the main electoral list and we leave it at that. One day
when we invite Professor Okoth Ogendo to give a learned valedictory lecture, he may
deal with this area of where we can go in another 15 or 20 years, but today this is where
we are.
Prof Yash Pal Ghai: Okay, thank you Githu, your points are made. I am now following
the list so review issues.
Com. Prof. Okoth Ogendo: Let us ballot into it.
Prof Yash Pal Ghai: Let us just have couple of more points and I think the Pastor is
next on my list and then I have Zein and I have Salome and Kabira then we have tea but
make your points very brief.
Com. Pastor Ayonga: Yes, mine is going to be very brief after my convener Dr. Githu
has taken us round and round and finally after so many words, scholarly words, well
arranged, he has come to say one third. Mr. Chairman, what I wanted to say is simple
and straightforward, we have been talking all the time to increase the women
participation to one third. We have not even had that as yet and for one to say we go fifty
fifty just like Uganda, I would wish to see a time that we do things a Kenyan way rather
than giving reference to what a neighbour has done. Our neighbour just started and we
do not know how far he is going to go. He is interfering these are his own words that
Kenyan way is corrupt. I wish he would say that as a conference but what I am saying
Mr. Chairman is that things should be a steady growth from nowhere to one third that
would have taken us a big strive, I mean promoting our women folk. Thank you.
Prof Yash Pal Ghai: Thank you.
Com. Zein Abubakar: Thank you Chair, I hope Chair you will protect me from a
number of people who have departed from their normal selves even from the academic
angle to becoming activists. So I will speak without being called names but the first
Page 24 of 138
thing I would like to say Professor is that part of the problem we have now is that there
are many proposals on the table and I would like to distinguish the proposals by the
glimpse from the proposal of the Honourable Professor Ogendo and I think many people
are responding to the proposal of Professor Ogendo which are not clear by the way. He
has just made reference to principles and dismissing the group because my understanding
of what the Professor said was, the group is not even going far enough. If it was me I
would have gone this far, so people are responding to what Professor said and not to what
the group said. That is the first one.
The second point is this Professors, that if we were to exercise. Protect me from my
convener sir?
Prof Yash Pal Ghai: Please listen to Zein it is very discourteous not to do so. Carry on?
Com. Zein Abubakar: Thank you Chair and thank you my convener. If we were to
only implement the principle which Dr. Githu is referring the a third of 210 seats would
be 70, a third of 300 will be a hundred. But what people are saying basically is that if I
understand this group correctly, what they are saying is that, let us allow the nation learn
that women can run for seats and compete because of this, our past history is, if we are
not elected then let us allow them to have an equal chance of being nominated or going
on the second type of going to parliament which is on the count of proportional
representation. May be to take care of the fear which they have is to put a rider that, if all
the third are elected, if that is what they want, then you can say, not to exceed a third but
I would not go that way. I would just say that we adopt the proposal of the group the way
it has been framed but also that I find it very strange that even those who are on principle
accepting the idea to quote Dr. Githu Muigai, the market place. He tickled me and I
laughed and he complained because he said, let us assume that voters in Kenya exist in a
perfect market and they go to vote purely on the programme and the manifesto of the
political party and each and every person here either kind of laughed because we know
that is not true. In Kenya we have not any scientific knowledge to demonstrate that
people vote on account of programme either passed by political parties or not. Infact,
Page 25 of 138
there is a wealth of information indicating that the programmes and the manifestos of
political parties are very close ideologically and as well as the programmes which they
are proposing, they are almost identical. So, people in Kenya vote for other reasons and
programmes and ideological party and there is a corpus of knowledge, which indicates
scientifically that ethnicity is one of the higher indicators. So, I am surprised that people
would be saying, it is an imperfect market like me I agree that it is an imperfect market
but in order to make competition more logical and to represent the national character of
our nation, we can only deal with the issue of gender but no other category. I find that
very strange because if you admit that it is imperfect then you should admit of more than
just gender. There is more than just gender which makes this competition imperfect but
the other point which Professor Ogendo which is very important and are close to my
heart, two thing:-
One, when he made reference to the population of Kenya, I suggest that there is no
agreement in this country that census are above politics and manipulation on political
grounds and I am going to suggest that the director of bureau of statistics be made a
Constitutional office for that matter and that if you will allow be to illustrate because Dr.
Githu laughed and I would like to demonstrate with figures.
When we were consulting on economics and matters of economic affairs in Kenya, we
kept receiving government data indicating to us that there are several district or several
parts of this country which are never sampled, they are never part of the survey.
Samburu is one of them, most of the districts in North Eastern, districts in Coast Province
with exception of Mombassa district and so on and so forth, you can go on to the Eastern
Province and those are the same statistics under which national development programmes
are drawn on indices which are national and people make allocation for resources based
on those indices and there are certain regions which do not have any figure. How do they
do it? So, the last point I would like to make Chair is that in relation to what Professor
Ogendo said in terms of social engineering, my own positions would be this. We must
isolate those things which some of us want to implement in this regard of what the people
or what the Act said as a method of social engineering to a separate corner which we will
Page 26 of 138
come to, to discuss when we have dealt with other matters. So let us identify and say this
is a contentious issue on the issue of social engineering and we can deal with it, I am not
saying we should forget it, we should discuss it but not with other items.
We have already dealt with another form of social engineering which created a lot of
controversy in terms of sexual orientation. So let us actually exhaust issues and then say,
we can deal with them. Thank you Chair.
Prof Yash Pal Ghai: I am going to give the floor to Salome and then I will suggest we
have a break for tea. I will say a couple of words before the break so, the floor will be
yours.
Com. Salome Muigai: Thank you Mr. Chairman. I would like first of all to remind this
sitting that Kenyans both men and women in a lot of places told us that they would like to
see 30% representation in Parliament of women. Therefore, we need to work backwards
to see what gives us this. What this group has suggested to us, I do not think in all
seriousness is going to give us the one third in Parliament. For example, even if the
political parties give us the one third in their list, there is no guarantee that they will be all
elected. So we need something firmer than that if we are to deal with this issue once and
for all and I think this is an area where the consensus both within our group and also
within the people whom we spoke to or who spoke to us during our tours. So, I think this
is one thing we can agree on so that we can conserve our energy for other things that are
going to come. Like the next one that I am going to share.
The issue of people with disabilities we agreed again when we were coming up with out
guidelines for constituency committees and I do not know what the experience of other
Commissioners who were but I was, Bishop Njoroge and myself were in charge of
Central Province and I had to take those lists back, three times. To Thika for them to find
people with disabilities. Thika is the only place where you have a school for the blind up
to secondary level, it is the only place where you have a school for people with physical
disabilities up to “O” Level but for a long time it had been up to “A” level. So, most of
Page 27 of 138
the people with disabilities who have been trained in this country were trained in Thika
but the MPs in Thika said they did not know anybody with disabilities who had “O” level
in that area. I am just pointing out that, the women issue is easier to sell than the other
things that we are going to be involved in but we do need to be very firm in the things we
want to put into this Constitution especially if we want greater inclusivity, greater
participatory mode and I do not think this will be a job for the very Saint heated. Luckily
we do not have them in this Commission. Thank you Mr. Chairman.
Prof Yash Pal Ghai: Thank you very much. I suggest we have a break but I would like
to suggest that though this is not quite the break to get consensus but use the tea break to
develop some consensus. What I would like to do when we come back is to made
decision on the first Act of recommendation on page 2, we need to move on, I think we
have had a very interesting, very useful discussion so when we come back we will make
some decisions. But do talk and see if you can make some compromise.
(Tea break)
Prof Yash Pal Ghai: Drag in the other Commissioners. If I can just continue, we have a
number of recommendations which appear on page 2, first half and which were presented
by Kangu. I think from the discussion that we have had, my sense is that there is a
general agreement on the MMP system, I think now perhaps the consensus that we
should use MMP as much as possible to overcome narrow ethnic affiliations and move
towards more national party and one way to do that is to have a threshold of 5% before
any party is entitled to party list members. I believe that is also accepted, I think we have
agreed for the time being that we will retain 200 single member constituencies and we
will provide for additional 90 seats for proportionality. The issue on which we did not
have an agreement before we broke for tea was the structuring of the party list and
whether we would support the composition that each party will have to nominate up to
one third candidates from among women for the constituency seats. I think we need to
separate the two points. The 50% on the party list in zip system which means that you
have women, men down the list will ensure that we will get 45 women members and 45,
men members and then what we are proposing is that one third of the nominated
Page 28 of 138
candidates should be women. That is to say from the political parties and this does not
guarantee that any women will necessarily get elected and our records so far is not very
good and I suspect not many women initially will get elected. The advent of however of
requiring nomination by parties is a device to integrate women into the political life of
the country and into the structure of the party, they will have promote some women,
women will begin to play a more active role in political parties and in the long run that
seems to me simple is to be a better way to go forward than the Uganda one whereby
women have guaranteed district seats and they do not obvious get into it in the political
party. So, if you got that, the chances are that the total number of women in the first
legislature under the system will actually be less than 100 which is less than one third,
which is what we have agreed. If we agree on one third then the composition that will be
proposed of 300-member house, 100 members will be women. The formula we are
suggesting here will probably secure initially normal than 65 and therefore women can
have many seats as they would under a straightforward formula. There advantages in the
sense that women can be well presented in the political system, party system and in the
long run that will be better for them and surely as I understand women members are
happy with that proposal. The proposal here that 50% of the candidates from the party
list will be women in the zip system and that each party will nominate for the
constituency election one third candidate from women.
This is my understanding that there is considerable support for that.
Speaker: …
Prof Yash Pal Ghai: Of course that is what I am trying to explain to you, you can reject
that if you like but have them as proposals.
Com. Charles Maranga: A point of order Mr. Chairman.
Prof Yash Pal Ghai: Yes.
Page 29 of 138
Com. Charles Maranga: Mr. Chairman, women will gain more by having that principle
of one third across the board even if it is zip system. So that Mr. Chairman, if the person
who is being taken on the list is not qualified there are chances that women will be
ensured even if the next one is a man then it does not necessarily mean the man is being
taken but will ensure that the women have been given a third of the positions. Mr.
Chairman, that would be a good principal and I know it will be easily approved.
Prof Yash Pal Ghai: Okay, Lenaola, then
Com. Isaac Lenaola: Thank you Mr. Chairman. Since we started this discussion, we
have spent nearly two hours discussing the one third of the 50% ration for women. The
Proposal by Dr. Muigai and Dr. Maranga are of course attractive in that the consistency
with all participants but I think we are saying that we need to give women an opportunity
at a more guaranteed level which is proportionate to their representation to get into
Parliament. At the parliamentary direct vote system, we know that they cannot get more
than 20 even if we try this election to get them into Parliament so, I think for a beginning
let us adopt this proposal so that if we are assure of 45 women into Parliament and then
the rest can fight across the board on the party ticket and then we can perhaps in later
years amend this proposal. So, I think we should not, we have a long way to go in this
paper, I suggest we either now close this issue on a consensus or we take a vote on the
two proposal and move to the next issue on the table.
Prof Yash Pal Ghai: Have then floor and then Nancy.
Com. Mutakha Kangu: Mr. Chairman I wanted to ask and part of which is coming out
what Lenaola is saying. If we adopt the one first rule, how do we assure women that they
are going to get the one third because the proposal seems to be saying, we increase say,
the constituencies to 300 then we say women will have one third of those seats. Are we
going to single out certain constituencies and say Mvita Constituency is a woman
constituency, Butere Constituency is a women constituency, Mumias is a woman
Page 30 of 138
Constituency or how are we going to get this one third through the electoral system
which we know and many have said, Zein has said, Lenaola has said does not operate in a
fair way than enables women to win the seats. How do we implement the one-third rule
that is my question?
Prof Yash Pal Ghai: Nancy.
Com. Nancy Baraza: Mr. Chairman I think the principle is okay, I only wish we had a
better formula which could give us the one third but we have cracked out heads. If we
can get that guaranteed, I think in principle we do have…
Prof Yash Pal Ghai: Before we went for tea, if look at my notes the person who has
wanted to speak Professor has not had a chance and I had said we would start with her.
Would you want the floor? You do not have to, it is not compulsory to speak.
Com. Prof. Wanjiku Kabira: I had forgotten I wanted to speak but let me just make
one point here. As we are accepting that through this system we are not going to get one
third infact what we might get in total will probably will be 18% to 19% but we are
conceding to the fact that it my be a better system in socializing women in politics and
encouraging political parties to go out of their way to identify the women that would
make their own parties a win win situation. I think on that basis, that is why are saying
we are accepting this particular recommendation because although it would not give us
one third but for democratic goals but I would want us to remove the word preferably, the
zip system, we say, just use the zip system we do not say preferably. Then we also,
where we are the one third of parties nominating, we know what well happen, they will
nominate women candidates in areas where they will not win but I do not know what we
can do to encourage political parties as much as possible to nominate women who can
win under this zip so that in principle we can indicate that we want to move towards
equal representation in Parliament but this is a starting point.
Page 31 of 138
Prof Yash Pal Ghai: That will be good to indicate the general principle and then it will
be that.
Now, in view of this consensus do Charles and Isaac want to make
contributions? Please keep it very brief because we have a consensus, do not try to break
up and let us move forward.
Com. Charles Maranga: Mr. Chairman, what I was going to suggest is that if Professor
Kabira and group are worried how the women are going to be able to ensure that we at
least have some from elected Members of Parliament then the Chairman, I think we
should borrow a leaf from Uganda where we can may be given them a district so that
they can elect one each. Okay, one third, good.
Com. Isaac Hassan: Mr. Chairman I am got giving you any substantial comment, I am
just saying that as a Commission, I think we should seriously consider the fact that this is
a work of a systematic task force and I am sure seriously considered all the issues on this
matter and personally I will support what they have proposed and being that they have
considered all the options which were there and I think although the women may not be
able to get the one third automatically that they require and I have a very strong feeling
that at the National Conference, this 50% throughout may still come down but as a
Commission I think we should approve it. Thank you.
Prof Yash Pal Ghai: That you very much indeed. So I think we now have a consensus
from the recommendations of page 2 and I will invite…
(Interjection)
Com. Prof. Okoth Ogendo: Just a small point of procedure. I hope Commissioner
Hassan is not saying that this plenary must accept everything that come from a
Systematic Task Force?
Prof Yash Pal Ghai: Okay, I think I will invite John Kangu to take us to the next set of
recommendations and I hope this time we can move a bit faster. I do not at all resent the
Page 32 of 138
time we have taken on this, this has been an extremely important issue and I am glad we
have consensus.
Com. Mutakha Kangu: Mr. Chairman as I move to the second part I would like to
remind the Commissioners about bullet number two, I hope they have considered this and
the mechanics of its application after we have decided on devolution will be worked out.
The second part is the one that deals with the right or duty to vote and the voting process
and under this, we have produced the view of the Kenyan people which comprise a litany
of complaints about the registration process of voters and the registration process of
persons and the link it has to the voting process and how it disfranchises the people.
Then we have also considered the link in voting to a specific residence area and its
effects. We have also considered the views of Kenyans on the timing of elections
particularly in December which many Kenyans consider a months of festivities and we
have followed with recommendations.
At page 3, we are recommending that the Constitution recognizes as a fundamental rights
of a citizen to vote and that this could be put in the bill of rights. We are also saying that
taking into account the recommendations that were made on the issue of ideology, that
there is also need to look at the voting process as not only a right but also a representative
duty on the part of the citizen and of course ensure that all the inventiveness to voting are
removed so as to give citizens an opportunity to exercise their rights and to also perform
their civic duty of voting and ensure that this is done responsibly in the interest of the
common good of the society.
We also are recommending that the Constitution provide for a system of voting that we
have described as secret ballot systems. We were alert to the events in Uganda a few
years ago when the voting in Parliament under the standing orders, the voting by a show
of hands was declared unconstitutional. We also have addressed the issue of proof of
citizenship and we said, proof of citizenship and age required for registration as a voter
should be based on any credible evidence and not only an ID or a passport.
Page 33 of 138
We also recommend that registration of voters should be a continuous process and not be
confined to a particular period of periods. We propose that those in remands should be
allowed to vote and therefore mechanisms should be availed and I think we can also
capture there, those in hospitals and so on to be given facilities for voting. We say that
prisoners who are serving a sentence of less than 2 years should be allowed to vote,
bankrupt should be allowed to vote because we are saying that there is nothing special
between a Kenyan who has been declared by the court bankrupt and the rest of the
Kenyans of course many of us are in fact bankrupt, except that there is no declaration yet,
the majority of Kenyans are in that category anyway and those already declared bankrupt
may even be better of than the majority of the Kenyan.
We are saying that a conviction on an election offence or being declared in an election
petition although on this one I will be pointing out that my own analysis on the
jurisprudence is that an election court would have no jurisdiction to declare someone
guilty of an offence but people convicted of election offences should be debarred from
one general election only, except in serious cases of violence, bribery or vote rigging.
We are also saying that the residence requirements should be retained because we are
saying, given the technological developments in our country and the experience we had
in constituencies, if we said that a person should be allowed to vote from anywhere in the
country, the logistics might be very difficult because we are still very poor in
technological arrangements.
We also propose that the power of the President to remove a disqualification on a person
convicted of an electoral offence should be repealed and done a way with.
Finally we are recommending that the right to vote from oversees should also be given
consideration so that the Kenyans who are abroad can participate in the voting process.
Those are the recommendations we have on that aspect of the right and duty to vote and
the voting process, so members can discuss that.
Page 34 of 138
Prof Yash Pal Ghai: Thank you very much.
Com. Pastor Ayonga: I am asking Convener Kangu. Let me start from almost the last
point. When you are saying that Kenyans have the right to vote from oversees, did you
give any considerations of people who might not be overseas but who are outside Kenya?
Because we might have people down in Tanzania, Uganda and other places which do not
qualify as overseas and then another question. What criteria did you use to qualify
prisoners who are not above two years in jail to vote and disqualify all other prisoners?
My last observation is on recommendation number two, bullet two.
Voting must
therefore be considered as both a right and fundamental duty to every citizen. Now,
Bwana Kangu, I have seen that this is very good of course, it is a right and we should
make it possible for everyone to vote but your experience and my experience have come
across the aspirants who go by votes from people, they give them money and they take
their votes and keep them or destroy them just so that their opponents may not succeed in
certain areas. Could there be some kind of a penalty which would help people to keep
their votes so that they do not sell them and make it a point that they vote when it comes
to the time of voting.
Com. Githu Muigai: Mr. Chairman, thank you very much, I have more in the nature of
a clarification than a question. The issue of prisoners Pastor Ayonga has dealt with, I
would have asked the same question, at page 4 on the right to stand for parliamentary and
presidential, again if you will protect me from Zein Mr. Chairman who is speaking.
Again is a question of cautioning ourselves about the fact that we are making a
Constitution within a political…
Prof Yash Pal Ghai: Can I just interrupt you, which point are you referring to? We are
looking at the top of page four.
Page 35 of 138
Com. Githu Muigai: Sorry, well then let me make the other comments I will make that
comment later. The power of the President to remove the disqualification on a person
convicted on an electoral offence, I personally always took the view which may be wrong
that the amendment that purported to vest in the President power, the Ngei amendment as
Constitutional Lawyers call it, was unnecessary one because in my opinion a conviction
under any legislation is in my judgement covered by the prerogative mercy in its wide
application. So that if we do not want elections to fall under that category, then we must
issue specifically. I will deal with the other matter of age when the time comes and I
apologize for misleading in that direction.
Prof Yash Pal Ghai: That is okay. Charles and then Lenaola, Zein.
Charles Maranga: Mr. Chairman, my question is on the residence requirement which
you say should be retained. This I think is debatable and my own opinion is that this
should not be one of the requirements because Mr. Chairman if somebody wants to run
for parliamentary seat somewhere may be in Nairobi or Bungoma and most of his time he
is working somewhere in Bungoma or Nairobi, there is always a conflict whether you are
in that place or this place. So Mr. Chairman this residence requirement and given that if
you have registered as a voter if John the way I see he is recommending here that we are
able to be anywhere in this part of the country then this residence requirement should be
removed. It is my strong view that it does not serve any purpose after all anybody can
run anywhere and there are no strict ways of enforcing that that.
The second question which has been put forward is the proof of citizenship that you do
not need only an ID but you can have other credible evidence. What is this credible
evidence? So I want may be some expansion on that then Mr. Chairman finally, I want to
ask a question on the election offences.
Mr. Chairman, for example if one was guilty, how do you know that you want to put
exceptions on such election offences? I think you need to come out very clear, I do not
think it is very clear what you have recommended here about election offences. That is
Page 36 of 138
the conviction of election offence or being declared in an election petition case to have
been guilty should debar one from general election only except in serious cases of
violence, bribery or voter rigging. Mr. Chairman you find that the case of violence for
example is not necessarily the candidate who undertake that kind of violence, it is the
supporters and sometimes, how do you prove that the people who have carried out the
violence are so and so supporters. It is a very difficult to do because somebody can put
on my T-shirt if I am a candidate and they say, they belong to so and so and yet in the
final analysis you are being tied up with that violence so you will be penalizing people
who do not know where the source of that violence is. So, I think you need to be very
careful on this. Thank you.
Prof Yash Pal Ghai: Lenaola? Zein, I think it is before you and then Raiji.
Com. Lenaola: Thank you Mr. Chairman, my first point was on citizenship and I think
Maranga has picked on it but let me just add that if we were to say that birth certificates,
driving licenses or anything else to be evidence let us be clear. Two, I am not clear on
my mind why we think bankrupt people must be allowed to vote, is this from what
Kenyans have told us or is if from comparative studies, I do not know? Then let me
understand that because in my understanding I think it is standard and conventional
bankrupts cannot vote but let me just understand if I am wrong.
Com. Zein Abubakar: Thank you Chair. First of all the issue of prisoners who are
serving a sentence of less than two years should be allowed to vote, I think we need to
give a little more thought on that particularly in relation to what Pastor Ayonga said and
the difficulties in implementing a principle like that, I do not have a problem with it but
we need to give it a little thought. Then there are other things which I believe Kenyans
made submissions to us and are important to be considered under this section. For
instance, choosing the place of voting, the accessibility by people with disability in terms
of being able to get to the polling stations and being able to vote and not cue like others,
again that is related to the mechanism of voting. There are places where we heard
submissions that women would like to in a cue by themselves, they would not like to be
Page 37 of 138
mixed, with men as a right and so on and so forth, I would give you other examples but
the main principle which comes back is that we should indicate that there is going to be a
common national standard. I do not see that indicated and would we have variation like
the Americans do, each State having its own standards. We had a lot of submissions in
terms of the principle of establishing that the ballot box will be transparent.
Prof Yash Pal Ghai: We have not gone to the voting. I think they will come later on.
Com. Zein Abubakar: But then in relation to the rights because they say process, the
uniform forces, would they have a right to vote and if they will have a right to vote, how
would this right be exercised? I mean the Police and so on and so forth. Thank you
Chairman.
Prof Yash Pal Ghai: Let me ask Com. Kangu. Do you have later on a section of the
question Zein has raised about the forces?
Com. Kangu: We do.
Com. Mosonik: Mr. Chairman, on recommendation number two which was mentioned
already. Voting being a right and a fundamental duty, are we making compulsory by
calling it a fundamental duty?
Secondly Mr. Chairman, the issue of conviction on election offence made exception in
serious cases of violence, bribery or vote rigging. What are the other election offences
rather than this one and also why should we be keen to say it debars one from one general
election only when this is the core of our democracy how we vote and how we elect
leaders? Does it mean you are saying to people it is not so serious if you commit this
offence?
Finally, Mr. Chairman on the residency requirements I heard Dr. Maranga saying it is not
really important but why do we have constituencies in the first place or electoral areas
Page 38 of 138
and secondly Mr. Chairman, how do we avoid the so called imported voters if we do not
have a residency requirement and that relates to the document which we use during
elections but actually they do indicate ones place of residence or not?
Prof Yash Pal Ghai: Raiji.
Com. Raiji:
Thank you Chair.
My intervention is also directed as this proposal
regarding whether or not residence is important. I think a lot of submissions that we
received was the effect that many of the MPs abandon their constituents, that is, the
people from that locality which elected them and there were submissions regarding
having offices and so forth. I think that unless we were to abandon constituencies and go
full blast on this proportional representation so long as we are constituencies and I note
that the task force has recommended that we retain the present constituencies. There has
to be a direct connection with the place where one registered as a vote and where own
becomes eligible to put him so fore as a candidate because the understanding of Kenyans
and unlike other places is that once you are elected as an MP, your primary duty is to
serve the people residing within that geographical set us called the constituency and for
that reason. I think it is irrelevant how technology develops because it may improve the
mechanism of voting but the fact to the matter is that people at least from their
submissions want a direct connection and in fact, we did receive submissions from some
of the cosmopolitan constituencies like Nairobi where the people who actually reside
there were not quite happy with MPs who they saw as imposed because you know as an
MP you can stand in any constituency where you have some minimal connection and
they will probably have tightened the requirement or the qualifications for eligibility to
stand in a given constituency.
So, I would propose myself that we retain the residence requirements seats in the form in
which they are at the moment and we disregard technology until we develop a different
system of voting.
Prof Yash Pal Ghai: Hassan and then Margaret Nzioka.
Page 39 of 138
Com. Isaac Hassan: Mine Mr. Chairman is on the independent candidates. I know there
have been a lot of support for independent candidates from the people but I wonder
whether the task force has put any effort into the system of allowing independent
candidates in Kenya and whether they have been able to look at comparative aspects, I
know you have not gone out of the country but other comparisons from other countries in
terms of the recommendations because it could be subject to abuse. If could have a
system where a part from 10 candidates standing for a by-election in a constituency from
parties we will have another 10 or 20 who are also independent candidates. May be they
could not get nomination from political parties then they want to stand on their own as
independent and you will have a ballot paper running into 3,4 or 5 pages. I think it will
have the effect of confusing the voters. I do not know whether the task force has looked
into this issue. Thank you.
Margaret Nzioka: Thank you Mr. Chairman I just wanted to clarify the law in relation
to two of the recommendations on page 4. The recommendation relating to proof of
citizenship for purposes of registration as a voter, we amended the law in this regard with
effect from June this year. The current law represent the recommendation, I think the
new provision also contains guidance on what constitutes credible evidence for this
purpose so may be the committee with want to look at the new provision. We also
amended the law relating to registration of voters to make the exercise a continuous
exercise, what is pending are regulations to put this into force or to implement this but the
law is in place. Thank you.
Prof Yash Pal Ghai: Thank you very much for that information, I think I have read in
the papers but I have not seen the law myself so thank you very much for that. That
seems to be Salome.
Com. Salome Muigai: Thank you Mr. Chairman, I wanted to seek clarification from the
committee on whether they had any recommendations on the nomadic way of life and
how we marry that with our voting system just to ensure that everybody is taken on board
Page 40 of 138
and I am also going to agree with Zein that accessibility is a major issue for people with
disability. For example where we visited they talked about being disfranchised by just a
choice of a venue that is not acceptable to them. I was also wondering whether there is
anything the Committee could do about the documentation that goes with it, for example,,
there is nothing hardly on Braille during the voting, whether this is something the
committee could think a little bit more on and make some recommendations on that.
Thank you.
Prof Yash Pal Ghai: You will respond and then we will see if there is some consensus.
Com. Kangu: Mr. Chairman I will start with what Salome has said. We captured in the
views of the people concerns about nomadic people and the disabled but I think we are
missing on the recommendations and we would invite you to assist us with some
recommendations in that regard.
Two, coming to Hassan, we are still dealing with the question of the right to vote but we
are addressing the issue of independent candidate under the right to stand for office so
that will be addressed but here are dealing with the right to vote. We appreciate the
number of issues that have been raised by members particularly what Mr. Nzioka has said
and we will be keen to look at the amendments so that we can see out to restructure this.
Now, capturing what Commissioner Mosonik and Commissioner Raiji have said, Indeed
it is our position that even the recommendation by the people about a power of recall, to
recall MPs which will be addressed at a later stage shows that the people are trying to put
a link between the MP and the people he represents and my own view would be that we
might need to tighten the residents rule because in a number of rural constituencies. The
complaints were that they elect people who later disappear and the genesis of all these is
because these are people who were born in those villages but for all practical purposes
they live their lives in urban centers, they only go to the villages for elections. We might
need to tighten that so that the people in the villages actually elect people who live with
them in those villages, who understand their problems and therefore who will not run
Page 41 of 138
away from them and stay in Nairobi. People who will when they are free, will have to
run to the villages because that is where their families are based but what is happening
today is that you live your family in Nairobi, you go to the rural area to contest a seat,
you stay there for the period of the campaign but when you win the seat, you go back to
your family in Nairobi you do not bother with them. So the residents rule and I would be
asking for assistance on that, it must be tightened to give the people representation from
people who live with them, who understand their problems or share with them in the
problems, so to speak. In addition, the argument that has been put, basing constituencies
on population is also founded that there is a connection between the MP and the people
he represents and so we should improve on that.
The issue which my friend raised here of oversees, we concede we will instead say
Kenyans abroad or outside Kenya so to speak so that they are captured. They may
actually in the same area of no-man’s land, they may not be abroad, so we can refined
that.
The issue of prisoners, we are saying that the argument that goes into baring some of
these people from voting or contesting seats is because you are trying to look at their
moral turpitude and the attempt is to try and measure the seriousness of the offence one
has committed before you can bar them from voting and so on. So we concede we will
be able to reconsider the level of the election offence that are involved but on what
Maranga said that violence may be committed by people who are not connected with the
candidate, our positions is that the recommendation is, a person convicted and so the
candidate would have been given the opportunity to raise all those arguments in a court
of law to show that …(incomplete) Before being convicted and that is why I said, I have
reservations about the current law that allows an election court to report one guilty of an
election offence and I think we may be changing that depending on that this plenary says
so that we only leave it to those who have been convicted in a proper court of criminal
justice are the ones to be debarred and not those reported by an election court. So that
one is given a full opportunity and a fair hearing before a conviction that can be used to
bar him is arrive at, that we concede.
Page 42 of 138
On bankruptcy, we were saying that the argument has been that bankrupt people would
be easily corrupted by the candidates to gasp their votes in a certain manner but we are
adore wing that given our own history, there are many other people who get corrupted in
the electoral process and therefore it is unfair that we should single out only those who
have been declared bankrupt when in fact there are other. Then we look for other
mechanisms of dealing with corruption in elections to ensure that it is stopped then allow
people to vote whether they have money of they are able to pay their depts or not. So that
is what we are saying. Otherwise the other points we concede and we will be urging that
members who have made them are able to give us detailed clarification so that we can
incorporate them in the recommendation.
Finally, the other issue that was raised by Commissioner Ayonga about the voting
process is also a duty it was also raised by Commissioner Mosonik. What we are saying
and if you recollect what we discussed yesterday in ideology, we said that at the second
level of the will of the people, those who exercise that will also have representatives and
we said that, in that even the definition of a representative is wider than just those who
are elected to represent. It includes even those who vote and that is why we are saying
her that, therefore all impediments to voting should be removed and that will capture
those who would want to go and buy votes from people to stop them from voting. We
can criminalize that so that we say, the voter himself must not use the vote as a personal
right that he can use or abuse but on the other hand, the candidate must not abuse this
particular process by buying votes from people or trying to corrupt people to vote in a
particular way because this is not just a right belonging to that person, it is a
responsibility that must be exercised in a responsible manner. Personally, I would have
been proposing in fact compulsory vote in which Commissioner Mosonik mentioned
because if people are crying that we are being disfranchised by this difficult process of
registration of voters, issuance of ID cards and so on. If we are able to remove all these
impediments and they are able to get ID cards and registration cards easily, why should
we not ask them to vote and say you must vote and there is nothing stopping you? This is
what is happening in Nairobi, people in Nairobi, Westlands.
Page 43 of 138
Prof Yash Pal Ghai: Chairman please.
Com. Kangu: Mr. Chairman, the experience is, it is the poor gardeners, cooks and
watchmen who go to elect the MPs but their bosses who own the homes they are
gardening, who own the kitchens in which they cook, they do not go to vote and after a
short while they start complaining that this MP is not the right quality. It is those kinds
of people we must neck and bring into the process and tell them, elect the right person.
Personally, I would be recommending compulsory voting with criminal sanctions for
those who refuse to vote because this is a duty and you are not performing it, you are
supposed to participate in choosing those who exercise common power, public power,
you must exercise it and if you do not want you be penalized, taxed or you pay fines.
Prof Yash Pal Ghai: …
Com. Kangu: There is a breakdown I was about to ask for protection but my sister was
telling me that in fundamental rights and duties, they are also recommending that voting
should be a duty, it should be one of the civic duties of a citizen. If we say citizens must
seek to understand the Constitution, he must participate in the civic duties, one of them is
choosing correct leaders. Thank you Mr. Chairman.
Prof Yash Pal Ghai: Okay, just wait a minute. The time is 12.30 pm. Since we do not
want to control the time for lunch, we should adjourn soon but not necessarily
immediately. I want to know how we should proceed, I think we have had a general
discussion, comments to which Kangu has tried to respond. Are we in a position to go
through these one by one and make a decision? Sorry, No, I am saying are we ready to
decide, that is my question. Zein?
Com. Zein Abubakar: Related to the question you are asking chair, when John says
other points have been conceded, which are these other points? For instance I raised the
Page 44 of 138
issue of the uniform forces right to vote which has not been addressed at all, is that one of
the points which has been conceded and it if is then how do we link it in terms of once we
go one by one. I do not have a problem in going one by one of what is there, I have a
problem in how do you then relate to those things which are not there. For instance, chair
when you said the issue of a national standard, the issue of people with disability, lines
and transparent voting boxes, you said they are in different parts I have checked, I have
not seen any of them in any part, it ought to be rightfully on the voting process. So when
they say it is in a different part, is it in a document which he has which we do not have or
what is the position. Thank you.
Prof Yash Pal Ghai: Mrs. Asiyo.
Com. Phoebe Asiyo: There were very serious recommendations on sealing on the
amount of money candidates may use for campaign purposes and I have not seen that one
reflected in their report. Thank you.
Prof Yash Pal Ghai: I think may be one way to proceed on that is that we discuss the
points here, you keep a note of points which have not been discussed and then you raise
them at the end. Charles?
Com. Charles Maranga: Mr. Chairman I was going to suggest to John, even me my
point has not been covered, the one of residence it is so important and yet he did to
respond, is it one of them conceded? I do not know. I want to ask whether you did
consider that we have so many people who during the time of voting would be either
patience or in hospitals and I do not even know how you have covered the schools and
other areas because that sometimes disenfranchises so many people. So I really want to
know whether also you are going to recommend for a public holiday during voting?
Thank you.
Prof Yash Pal Ghai: On the first of these points I guess we agreed that we need to state
clearly the right to vote or it should be taken for clear that citizen have a right to vote and
I think we need to afford that. The question about the duty to vote as a general principle I
Page 45 of 138
guess is acceptable but whether we want to enforce this to the criminal law is less clear to
me. There is a horrendous administrative difficulties or people do not have even the
means to get to the nearest polling station and it would be very difficult to implement so
what we can do is that the Constitution state as a general duty which we are told by
Nancy is in the human rights section also but leave it at that and I know that it is very
difficult to enforce such legislation but we could include a general principle of the duty to
vote.
On page 4 top, I am sure we alls agree that voting should be secret ballot. On the next
bullet point we have been told that the law has been amended and that any credible
evidence would be accepted for registration of the voter. We agree and is now the law
that registration should be continuous. I did not notice anyone opposing the remandees
should be allowed to vote, we have had some debate about the prisoners having less than
two years to vote and Kangu explanation is that a sentence of less than 2 years is related
to the gravity of the offence and for those who have less than two years having perhaps
commited such serious offence as those who have highest arbitrary but that is the
justification.
Com. Zein Abubakar: I have a point sir.
Prof Yash Pal Ghai: Yes Zein.
Com. Zein Abubakar: My problem is not on the gravity of the offence, my problem is
on the independence of choice. To what extend will these prisoners not be punished by
the correction officers if we were to count the votes at the polling stations as most people
have been saying and this would be in the remand of the prison and that if the outcome is
not in favour of those preferred by the correction officers of the officer in charge. I just
want to make sure that it not open to abuse that is why I also raised the issue of military
and this is a debate even in the last election in the states about, how come the military
voted in a certain way. Thank you Chairman.
Page 46 of 138
Com. Dr. Githu Muigai: …
Com. Zein Abubakar: that is an assumption which I will not lay my fears on Sir.
Prof Yash Pal Ghai: Well I think that have to do with the secrecy of voting, we would
need to ensure that the votes casts by prisoners was only known to the prisoners.
Com. Githu Muigai: …
Com. Zein Abubakar: It is counted at the polling station which basically will give us
what is the overwhelming majority or what did people vote? You can use administrative
measures, I think Dr. Githu is referring to how you control rations, you could use how
you delegate duties and work and so on and so forth. So I am only interested in saying,
let us give a little thought in terms of limiting abuse, that is all I am saying Sir.
Prof Yash Pal Ghai: I had the floor first so. Are you going to speak to this point or
shall we have course so that we can conclude this?
Com. Prof. Okoth Ogendo: I think Mr. Chairman the general principle is, if we are
going to say that being thrown in jail does not take away your right as a citizen to vote
then when we come to deal with the prisons, we have to confront the consequences of
that because we are developing an organic law that must have principles that are
rightfully. If we left the prisons how they are, the police the way they are and then we
say a prisoner can go and vote then we are not going to be developing principles that are
good for the Constitution.
Prof Yash Pal Ghai: John, are you going to comment on this. Sorry Hassan.
Com. Charles Maranga: Mr. Chairman, I wanted to convince by brother Zein that this
law will not be treated in isolation with others because there are other sections which will
Page 47 of 138
be dealing with prisoners and so on. So I hope that by the time we have put this law in
place, the prisons would be more democratized than they are now. Thank you.
Prof Yash Pal Ghai: Hassan? I think we are in favour of the principle and we need to ..
Com. Isaac Hassan: Mr. Chairman, although I agree with the Chief Parliamentary legal
Council on the law of bullet number 2 and 3 on page four but I think it will be better if
these were also going into the Constitution as constitutional rights as fundamental rights
because currently, she is talking about legislation, Act of Parliament which has been
amended to the local right.
Prof Yash Pal Ghai: That is a very good point, I wonder if we could capture this by
some statements that administrative arrangements with its sword would not hinder
something like that so that the voting power is not negated by administrative absurd
principle. Thank you.
What did we decide of bankrupts? In fact we got a memo from the electoral Commission
which said that bankrupts should be allowed to vote and what they said were two points
which I recall, may be there may be more points. One is that we have a poverty of 60%
percent in the country and lots and lots of people are effectively bankrupt and secondly
that the right to vote has nothing to do with you being bankrupt and we want a
democratic Constitution and I think there were some other reasons but we …
Com. Prof. Okoth Ogendo: …
Prof Yash Pal Ghai: The conviction of election offence, I was not quite sure if we had
any sort of consensus on that. My notes are not very clear on that, I was looking through
my notes so, can Kangu remind us, what was the general drift on that point.
Com. Kangu: Mr. Chairman the issue was on distinguishing which election offence.
There are those who are saying, the main election offences are actually violence, bribery
Page 48 of 138
and vote rigging and I say that we can retain the principle of barring those who have been
convicted of election offences without making these distinctions of putting these
exceptions and let me just say, one would be barred from contesting in the next election,
that is one election and thereafter he qualifies to come back. But of course this will again
be subject to the question of the leadership code of conduct which I think is going to
emerge in one of the reports we are going to receive from one of the groups. If we
demand a leadership code or when we are dealing in this paper with the moral and ethical
qualifications of candidates what standards are we going to put of morals and ethics that
candidates and voters should meet before they participate and the question would be. Are
there going to be some people whose morals and ethics can bar them from participating
forever? Or shall we be in a position to put a time limit and if you put that time limit, can
there be some kind of process of evaluating to see change of conduct or something of the
sort.
Prof Yash Pal Ghai: We can discuss now and decide. Charles.
Com. Charles Maranga: Mr. Chairman, even violence as it is sometimes people can by
their actions and may be statements they can cause violence and in most cases, you will
find that violence because some are very far from where the candidate is. For example, if
somebody stood up and said, I am appealing to my supporters to lynch so and so, they go
and do it. Now who is the cause of that violence, is it the candidate or the people who did
the actual because I was made to understand John saying that the people who would be
caught are taken to court and found to be guilty, those are the ones who will have
committed the violence but I am saying, violence will come in many ways which you
might not be able to deal with. So what I am suggesting here, because there is given a
code of conduct which the Electoral Commission has been using and nobody follows it
and yet we have a lot of violence. If you look at that code of conduct, its excellent peace
of work but nobody follows it. I think here there is a lot of civic education to be done to
Kenyans and I do not know how you are going to do it but the truth is, you cannot say
one has a right to vote and here you are barring the same person. I think you need to
have a measure which can bar these violence, as you said the best way is may be to say
Page 49 of 138
that somebody is not going to run in the next election. That helps but otherwise you need
to know who is causing the violence, is it the candidate or the person who carried out the
actual violence?
Prof Yash Pal Ghai: Those are proofs, which I guess court will have to deal with. Zein,
on this point?
Com. Zein Abubakar: Yes sir. Retain those three, violence, bribery of vote rigging but
add hate crimes and we will define those when we come to them.
Prof Yash Pal Ghai: I am not quite following the discussion.
Com. Zein Abubakar: I am saying that we should retain these violence, bribery and
voting clause.
Prof Yash Pal Ghai: As basic qualifications.
Com. Zein Abubakar: Yes plus those who would be found guilty of hate crimes.
Prof Yash Pal Ghai: And add that you mean. Yes and the other question is for how
long a period should they be disqualified?
Com. Zein Abubakar: One term.
Prof Yash Pal Ghai: One term, thank you. The next item is about the residence
requirements. At the moment what are the residence requirement, I ought to know but I
cannot recall? This is for the right to vote.
Com. Maranga:…
Page 50 of 138
Prof Yash Pal Ghai: But here we are talking about the right to vote but what has been
proposed here, we should retain some period or… Yes, Charles?
Com. Maranga: Mr. Chairman why this residence requirement will be a problem to
may Kenyans is even the nature of the way people now are carrying out their business,
the new technology and so on. You will find a whole family has moved to Mombasa for
example and during that period may be in the next one week or two, elections are going
to be carried out and it will force these people because may be they have not attained that
residence requirement and if we approve that people can vote anywhere from any part of
this country, later on in this document then Mr. Chairman you will find that this residence
requirement is actually against that proposal. So I am proposing that this residence
requirement should be done away with.
Prof Yash Pal Ghai: You mean they can vote anywhere in any constituency or they still
have to vote in the constituency where they were registered originally?
Com. Maranga: Mr. Chairman that is an agreement which is now being put forward.
Now the Electoral Commission of Kenya is computerized, if you want Kenyans to vote
from oversees, what akina Kangu are proposing. Which constituencies are those people
staying, they are going to vote from there and they will say we are voting in constituency
A and this is the person I am voting for. So Mr. Chairman with the new electronic
system, we should allow people to vote even if they are in Mombasa and they are
registered in a constituency in Kenya they should be allowed to vote in that constituency.
Prof Yash Pal Ghai: We are discussing the point in principle. Zein.
Com. Zein Abubakar: Chairman I think we are reminded of what Professor Ogendo
said two things:
1. We should identify those which need to go into the Constitution and those which need
to go to the relevant legislation interpreting the principles in the Constitution but the
Page 51 of 138
second point is that we should identify those which can be applied immediately and those
which on principle are acceptable but will need time to be implemented.
On this
particular question, more than half I am sure of the polling stations in Kenya do not even
have electricity. So if we are saying that we should have a computer base which will then
allow somebody to vote anywhere as opposed to having published registers, that is a
completely different type cattle fish. If we are ascertaining the principle is one thing but
if we are talking about now the mechanics and that this principle must be implemented in
the next election, is this feasible? That is a question we need to gamble with.
Prof Yash Pal Ghai: Yes, I think he has a good point but in principle we agreed that
persons should be able to vote from outside but in the constituency from which the
person was registered. Okay, when we said that and we will deal with this point.
Com. Kangu: Mr. Chairman, there is one thing the members are confusing about the
residence requirement. There is the issue of the casting of the vote itself and there is the
issue of registering as a voter because you first register.
Prof Yash Pal Ghai: Could we listen to John please?
Com. Kangu: There are two issues, the issue of casting the vote itself and the issue of
registering as a voter. You first register as a voter in a specific constituency and I think
the rule of residence refers to where you register as a voter, It does not refer to where you
vote from. So if on the issue of voting members are saying that we should provide that
one you have registered in a particular constituency you can be able to cast your vote
from anywhere in the country but for candidates in that constituency that is one issue and
I have no problem with that but the other issue we have to determine is whether you can
register to vote anywhere without any connection with the place because then we will not
be talking about importation of voters from one constituency to another. We will be
saying you are free to register anywhere and in that even we can get ourselves in an
imaginable situation of some constituencies with no voters.
Page 52 of 138
Prof Yash Pal Ghai: John, you committee has a recommendation on that?
Com. Kangu: …
Prof Yash Pal Ghai: It should be retain and at the moment we want your connection of
something that…
Com. Kangu: The residence rule we have on voting one must register.
Prof Yash Pal Ghai: I understand, I am just asking so you are recommending that it
should be retain. Okay, fine. Salome.
Com. Salome Muigai: Thank you Mr. Chairman, I would like to know from John’s
committee how that relates with the people who are going to vote from outside Kenya
both as a registration process and also as a voting process because if we say that
somebody who lives in Washington can vote at Matungu constituency.
Prof Yash Pal Ghai: If you read the actual proposal, it says the right to vote from
overseas or outside Kenya should be given only to those Kenyans who satisfy the general
rules of the vote in other words they have to have been registered in a constituency.
Basically we are talking of people who are may be visiting of studying abroad so they
have to establish a link with the constituency for registration there.
Com. Salome Muigai: Mr. Chairman that means that people cannot register from
elsewhere. Is that also something we need to think about? That one has to be here to
register?
Prof Yash Pal Ghai: I understood but John can correct me that the reference to general
rule about the vote meant that you have to be registered in the normal way.
Page 53 of 138
Com. Pastor Ayonga: He is saying the provision is there for those who are voting from
outside Kenya but there should be a provision also for those staying outside Kenya to
register in their respective embassies because we are going to loose so many Kenyans
who would not be able to vote because they have not registered and some king of
registration provision should be made. Take for instance, those thousands of Kenyans we
have in India, they could go to Kenyan Embassy and register. From that registration
there, they are able to vote at their own selected registration constituencies but if you do
not provide them with a mechanism of registration, you are denying them of voting
because they are not residents here.
Prof Yash Pal Ghai: Zein and then Kangu. Let us try to finish, wind up this in the next
5 minutes lunch is waiting.
Com. Zein Abubakar: Very simple observation that strictly speaking, the rule of
residence only applies to constituency based elections but if you interpret for example the
vote of the Presidency as a national constituency. Half way house would be that any
Kenyan living anywhere in the world can register to vote in the presidential election
without having to satisfy the rules of residency. I do not know if I have made myself
clear?
Prof Yash Pal Ghai: Yes, I think as a matter of policy for us even though I have for
many years endorsed as Kenyan, I do not really feel that thousands of Kenyans in the
United States and so on should defy the future. They are living there, they earn an
income there, there families are there and they do not understand the context here so I
would not be so much favour of that but here I thought what was being proposed was that
if I am studying abroad but I am stationed in my home is there, I can vote. I am traveling
on business, I can vote. By now there must be half a million Kenyans abroad and I do
not know they should be deciding on our elections.
Charles please hurry up and the we… I think John you are to bray for the person who
spoke most often in this. It is not a bad thing I am saying …
Page 54 of 138
Com. Charles Maranga: Mr Chairman, No I am happy if I am contributing positively.
Mr. Chairman it is now my strong proposal given that may be the Constitution and the
mechanisms of implementation might be difficult. It is my own proposal that we do
away with oversees voting. Mr. Chairman because of the complication because Mr.
Chairman even for one, how would you for example, if you want people to vote from that
point. You need agents of the various candidates to be there, is the government going to
take care, now that we are going to pass a law that vote counting at the polling stations
and they need to be witnessed by those various candidates. So, how many agents are we
going to send to go and witness that kind of programme?
So, Mr. Chairman, the
implementation part of it might be very difficult purely on that, I am proposing that we
remove this oversees voting. Thank you.
Prof Yash Pal Ghai: Any views on that? There are many ways in which voting overseas
is done, sometimes if you are going on holiday, you just get you ballot papers and you
post it form a broad but I do not know what the sense of the .. is there something, we can
leave you to ponder over lunch and I think we agreed that the presidential power to
remove disqualification should go. It should have certain effect, if he or she does not
have it, so do we want to state that the prerogative of mercy may be exercised but will not
remove the disqualification. I thought in the sense that we want have only selection as
possible but high standard as possible but it should not be permitted, is that agreed?
Com. Prof Okoth Ogendo: There is a point on interpretation of powers.
Prof Yash Pal Ghai: Indeed I believe there are recommendations on the prerogative of
mercy in some paper, they should reassess that question. I think with that we have that
concluded these set of recommendations on page 4. I suggest we come back at 2.00 p.m.
and try to conclude this paper within an hour if we can, I do not want to rush. Any of our
discussions on proposals, is part of our work and we should have as much time as we
need but let us try if we can speed up because this afternoon I know some committees
want to meet to finalize their papers so that they can be distributed before the end of the
Page 55 of 138
day. I propose that after we have covered this paper there won’t be any plenary work but
every committee must promise to leave the paper by today so that we can use the whole
of tomorrow for plenary work. Yes Zein.
Com. Zein Abubakar: Concerning just timing, is it possible to say 2.15 or 2.30 p.m.
which is much more realistic because if we say 8.00 am some of us are here at 8.00 and
we do not start until 8.30 a.m.
Prof Yash Pal Ghai: I apologize, I think we should start at 8.00 am infact many of us
were ready but we are just charting because we forget that there are some members here
so I apologize for that. So 2.15, Okoth wants to say something?
Com. Prof Okoth Ogendo: Chairman can I remind the Commissioners that the hotel is
teaming with nuisance of people and this is part of what we are doing so please guard you
documents with your life.
Prof. Yash Pal Ghai: Only one issue on page four and that was whether Kenyans outside
the country should be allowed to vote and if so on what basis. I was going to ask either
Isaac Lenaola to open up that but he has gone out because he did have a proposition, let
us hear others.
Com. Nunow: Chair during the informal discussion, basically the proposition was that
we received a lot of submissions regarding Kenyans abroad and in some form of a
general consensus that they have a right to vote now the mechanisms of registration and
so forth that perhaps is a detail that can be worked later but I think in principle nobody is
opposed to Kenyans abroad taking part in our elections. The details of how exact they do
this are details that can be capture in the details. I do not know whether anybody
seriously objects?
Prof. Yash Pal Ghai: Any requiring any special rules for that one, any Kenyan abroad
to vote. Sorry!
Page 56 of 138
Com. Okoth Ogendo: I thought my colleague was saying that we pass the principle and
leave the detail to electoral legislation.
Prof. Yash Pal Ghai: No I do not mean the actual mechanics of the whole thing but I
was thinking more of, if they have been away 10 years, they have not registered locally I
a constituency, do they still vote? Do they register as Pastor was saying with the
Embassies and that is sufficient for them to vote or things like that?
Com. Githu Muigai: Mr. Chairman, sorry to interrupt but I thought we may not be able
to make those detailed comments because as the chief draftsman informed us there is
some legislation that they have only worked on about 2 months ago and it has been
widely publicized, so we may be fixing a problem that they have already fixed.
Prof. Yash Pal Ghai: At this stage we are basically saying this is the principle of right
of Kenyans overseas to vote and we could even say at the end, as prescribed by
Parliament or something like that. Yes Nunow.
Com. Nunow: Thank you chair, I think I will go along with that but I think what we
should do is to try to quantify how many Kenyans are abroad as at the time we are
writing the report then that can justify the need for the involvement in the governance of
the country. If they are too few, it might be that they might not make much of a
difference but if the number is significant or fairly large then it indicates that it could as
well change the picture of who governs the country.
Secondly, the Embassies broad, the staff that are at the Embassies for period of a few
years, 2, 4,5,6 years and they often go with their families and even in smallest consulate
that constitutes quite a number and these are people whose stake are entirely in the
country they have not relocated, they are not working elsewhere, they are working on a
government assignment not working for other institutions. I think excluding them from
the governance of the country is to really disenfranchising a significant population that
Page 57 of 138
has direct stake where as those working in other areas, for instance teaching in the
universities abroad or working for multi national might be away from home for a longer
and may not be on day to day focused on the events in the country. Those in the
Embassies in the contrary get the newspapers almost on daily basis and are on the phone
with the people they deal and are up to date with the events happening in the country, it is
only fair that the Embassies be constituted as the polling stations and as registration
centers for voter registration then that I think does not need such a detail as to delegate to
other authorities. I mean for now we could say that could be our proposal that these
people should be involved and they are so many and the infrastructure on the ground can
take care of that, that is the Embassies and Consulates.
Prof. Yash Pal Ghai: Lenaola, I wanted to ask you to open the debate but you went out.
Com. Lenaola: I rushed out, thank you chair.
My thoughts are that and my
understanding of the community broad who are Kenyans, they are about three quarters of
them are students in India, Europe and America and I think it would be erroneous on our
part to imagine that all these people will have no interest to what happens in the country.
Last year there was a conference in Minosota, I think where very many Kenyans met and
the challenge they were given by a colleague of mine, Njonjo Mow was, do not sit and
make noise outside if you want to know what happens in the country, involve yourself in
policy making, involve yourself all that happens in the country.
My thoughts are
therefore that it is important we also allow them the opportunity as they themselves said
last year, they would like to participate in voting and therefore if you give them the
opportunity to register as voters and vote, they will vote. A lot of them by the way will
come to the country every one year when they are on holidays, so they are not really cut
off from what happens in the country. So my very strong recommendation is, let us allow
the principle that they can vote while abroad but perhaps then structure the system in
such a way that we are able to know who qualify and who does not qualify.
Prof. Yash Pal Ghai: Well, I am glad to say that when you were out of the room we
more or less agreed on this principle so that seem to have a consensus and I can also say
Page 58 of 138
that when we put our questions and issues on website, I was dazed, I was flooded with emails from Kenyans overseas. In fact the longest memorandum I received was from a
Kenyan overseas, he answered every single question on a list and so clearly they are
following developments here but let us accept the principle and leave the details to be
worked out in legislation.
Thank you very much indeed so we move on to page 6, is that your own next set of
recommendations? Just a minute because Professor Kabira wants the floor.
Com. Wanjiku Kabira: I was going through the recommendations.
Prof. Yash Pal Ghai: Okay. Do you want to say anything John?
Com. Wanjiku Kabira: Thank you very much Chair, I have 2 or 3 points that I wanted
to raise on that set of recommendation. One of them is on bullet 2 and I was wondering
about the recommendations by many of the Kenyans that Presidential candidates should
have a running mate. You know the Vice President should be part of the package of the
President and I was wondering where that will come and how will it result when we have
independent candidates. I do not know, we may want to think about that.
On the fourth bullet, this one is a clarification, we are talking about the person who has
willingly acknowledged allegiance to a foreign state. I do not know whether that would
mean dual citizenship or what that means? Dual citizenship or what is allegiance to
another country.
Prof. Yash Pal Ghai: …
Com. Wanjiku Kabira: Yes, it is the fourth bullet 1,2,3,4 (a) has willingly acknowledge
allegiance of foreign States, I do not know whether that also refers to dual citizenship
which we are recommending in other…
Page 59 of 138
Prof. Yash Pal Ghai: I think as we have now agreed to denasality that must go I guess.
Com. Wanjiku Kabira: Yes, I think may be that would go and then after that set.
Bullet 7, we recommend that persons seeking elections for both civic and parliamentary
positions to have minimum secondary school certificate. I was wondering because we
debated in this area about the first set of recommendations on how to implement MMP
and we desist the electoral rules, the Electoral System is talking about the civic and
parliamentary candidates whether we have actually dealt with how we implement MMP
at the civic level, Local Authorities level or whether we have calculated the number of
seats and so on or how we are going to deal with that.
Prof. Yash Pal Ghai: The chapter for Local Government will come in the devolution
paper, here we can agree on the principal but the numbers, why are important for the
purpose of this rule. Why are the numbers important for the purpose of this rule?
Com. Wanjiku Kabira: I am linking that to what we discussed in the first set of
recommendation where we were very clear about how to deal with the Parliament and
MMP. I was wondering whether you know whether we have dealt with that in Local
Authorities or whether that implementation or MMP will come in the paper for Local
Authorities or something, I do not know. I am asking?
Prof. Yash Pal Ghai: Well, I believe if we can conduct that because we have not
discussed that in details but I thought when MMP was proposed, It was recommended
that it should apply at national and lower levels. If you turn to page 2 the second bullet,
the same will apply but we have not discussed the details. May be we can leave it when
we come to limitation on devolution.
Com. Wanjiku Kabira: Okay and my other question again may be related to the same
category of issues is, you know what we did with the recommendations by the Kenyans
on the staggering of the elections, the presidential, what people recommended, what we
did with that or how we dealt with that issue.
Page 60 of 138
Prof. Yash Pal Ghai: I think a good thing would be as I said before, let us look at what
is proposed do not anticipate but keep those questions and at the end of this if we have
not covered them, please raise them then.
Com. Raiji: Okay, thank you chair. Mine is with regard to independent candidate for the
President and the National Assembly, I have serious reservations speaking for myself
regarding the independent candidates particularly now that we do not have some form of
primary and it is not inconceivable in the environment in which we operate to have even
50 people standing as candidates for President, overloading the ballot, bringing confusion
and purely doing it for fun.
So if we are going to have independent candidates
particularly for presidential elections I think we would have to think of a formula for
some form of primary to eliminate the non serious candidates with no support. I think so
chair because in this country, it is a known factor that some people stand for elections,
purely for purposes of winning a parliamentary seat when knowing they have no
intention or any seriousness. I think, I would myself express grate reservations and
probably recommend that we do away with this or if we do then we have some sort of
primary.
My second consideration is with regard to bankruptcy. I noticed here that …
Prof. Yash Pal Ghai: …
Com. Raiji: Than that is okay. I just want also to comment on the last three issues, this
regarding basically integrity and ethics and I want to comment Chair that this is also
another area about the morals and ethics of candidates. I think that is an area we received
a lot of recommendations and I entirely agree with the recommendation on the last three
bullets because it is captured and that also confirms perhaps the need for the Commission
that our committee has recommended so that they can deal with issue like these. I am
also impressed and I support truly the recommendations about the education
qualifications of Councillors and everybody because in my view, it capture the substance
Page 61 of 138
of the recommendations that we received and I support that those recommendations.
Thank you.
Com. Githu Muigai: Chairman, before we broke for lunch I had made a premature
contribution on the issue of qualification may be this is the right time. The point I wanted
to make is that, we are making the Constitution within a political context. First of all,
there are many people in this country who are in positions of leadership, who have no
university degrees and unlikely to do so before the next elections. so we must bare that in
mind.
Two, there are people in our public life who have hit the age of 70 and some even headed
to 75, they are in important constituency at the national conference. Sorry to keep
dragging as to the conference but I am trying to keep my eyes on a political compromise
that can be accepted and we can name names here. We have the Honourable Mwai
Kibaki, I think he has hit 70, we have the Honourable Simeon Nyachae, I think he has hit
70 or there about, we have the Honourable D. T. Moi, he has hit this age. We do not
want to antagonize and here I have not firm views if you protect me for some time Mr.
Chairman.
Prof. Yash Pal Ghai: Let the gentleman have the floor.
Com. Githu Muigai: Thank you. Mr. Chairman I have not firm views on this, may be it
is something that the draftsmen can deal with in transitional provisions but it is something
we must warn ourselves about that it cannot be ignored. The educational qualifications,
the age and so on and if I am assured that it will be considered in some form, I will move
on again to the question of youth. There is a suggestion here that the lower age limit for
MPs from 21 to 30, I would advice personally against that kind of thought because…
Sorry, I have been told by my neighbour and learned friend John Kangu that I am dealing
with the views and I am not yet on the recommendations. Apparently John Kangu
concedes that there is a slight mix up which is good but I would still…
Page 62 of 138
Com. Zein Abubakar: Mix up or the concession that …
Com. Githu Muigai: Mr. Chairman, I am conceding that the convener has made a
concession and that means as I have always suspected that he is a man of honour. This
one of the Prime Minister, President and his university degree is there John, you have
seen that? The only other issue I would comment upon is this national ethics and
integrity Commission. Again Mr. Chairman, I for one would be worried about creating
too bigger bureaucracy. I conceded and I would support Riunga Raiji that we would need
to vet persons who want to serve the public life but we do not want to be bureaucratize it.
I hope that is the word, in such a manner that it becomes something that… what I mean is
this, I would hate to have a situation where people who should serve out country feel that
they do not want to put themselves through the humiliation of an invasive kind of
procedure. As it is we do not have sufficient people who we consider ourselves as people
who should be running our country, offering themselves to do so. We should not create a
bureaucracy even makes it harder for young versatile professional like my friend Hassan
to step forward and serve the country. I will stop there for now Sir.
Prof. Yash Pal Ghai: Can we move to the rule about declaration of wealth?
Com. Githu Muigai: No. I am for that, in fact I was not even with the problem of age as
I mentioned I just would like us to deal with it in the provisions in such a manner that
individuals we may need at the National Conference and I am looking at it as a student of
politics do not become a hindrance too but in future times when this generation has gone,
I have no problem myself with a 75 age.
Prof. Yash Pal Ghai: Let Isaac have the floor please.
Com. Hassan: Gentlemen and ladies please lend me your ears. I think what Dr. Githu is
raising is a very pertinent and it applies across the board to the Members of Parliament to
the Councillors even because you remember you people when we went to collect views.
Page 63 of 138
Those Councillors who were not form four leaver would come and give a different view
and say that leadership is not based on education alone but even leaders are those people
want. Although they were being very selfish, they were trying to justify their positions
but I think because of what Dr. Githu said, we are assuming that we shall hold a National
Conference this year that those people who re going to come there will be Members of
Parliament, some of them who do not have degrees, there will be Councillors now that
we are vetting on electoral college, we will find a large number of Councillors also
coming there and once we set this strict qualifications, we may encounter some resistance
and we have been arguing outside here about this and we felt that may be to reach a
compromise and to be able to arrest that kind of concern. We would add another
qualification that may be in the transitional mechanisms or even under the substantial
clause that other than these qualifications that if you are a former Member of Parliament,
immediately before the coming into effect of this Constitution then may be that could
also be a qualification not withstanding that you do not have a degree. That should be
one form of qualification. I do not know whether my point is coming.
Com. Githu Muigai: I think it is also a bribery clause.
Com. Hassan: A bribery clause you call it whatever you want, I was saying that may be
you can also add another clause, either as a substantial clause here or under the
transitional mechanisms. That a person could still be qualified for example, to become a
Member of Parliament not withstanding that they do not have a degree, if he was a
Member of Parliament immediately before the coming into effect of the Constitution or
he was a Councillor not necessarily he has a form four certificate or even a Presidential
candidate in the last previous elections. I mean, that does help you daktari? Thank you.
Prof. Yash Pal Ghai: Okoth.
Com. Okoth Ogendo: Chairman, I just want to start thinking about Raiji’s problem.
Historically, political parties got into the process of nomination of Members of
Parliament and presidency as a means of restricting the political arena and we know what
Page 64 of 138
that did, it works best with the one party system. But we started off with the system in
which one could offer oneself as a candidate without necessarily going to political
parties. I can see part of the difficulty, how do you rid of useless candidates and I think
that has to be part of the genius of what we have to do, find a way that will give you
candidates that have national character if you like and who are really serious candidates
and not simply nuisance candidates who want to come into prominence as in some
contrite of getting subvention from the State. That if you are a presidential candidate,
you are entitled to certain kinds of benefits and protections and therefore people offer
themselves. One of the suggestions which I do not see here, which was given to us by a
school boy in Molo was that a presidential candidate, one of the qualifications should be
that you must have been a Member of Parliament before so that there is some kind of
history of leadership behind you so you do not just get out of your bed one day and offer
yourself as a Presidential candidate. But I am not saying that we should have that
qualification, I am saying that there are ways of developing the criteria in such a way, to
get rid of that incidence which is worrying Raiji.
Com. Kangu: Was there a time recommendation on Member of Parliament?
Com. Okoth Ogendo: This student said two terms, that you must have been a Member
of Parliament for at least two terms to be able to offer yourself as a presidential
candidate.
Com. Kangu: We were also told in Egerton that if one tries twice and fails, he should
never be allowed to try again both for MP and President.
Prof. Yash Pal Ghai: Mrs Asiyo please.
Com. Phoebe Asiyo:
Thank you Mr. Chairman.
Mr. Chairman there is this
recommendation 2 on independent candidates which Mr. Raiji referred to. I think this is
the one provision that will open a window for those candidates especially at the
parliamentary level because this is liable, who are discriminated against especially those
Page 65 of 138
who threaten, who are perhaps more qualified than the incumbent. In most cases they
have been refused nomination by the political party and I think this is only window that
can be opened for them to also have the opportunity of being elected to serve their
people. Otherwise, running from one party to another is not going to answer this issue
that is now become very critical in our political parties. So, I would suggest that Mr.
Chairman we go along with this but perhaps we do what Raiji recommended by may be
have some preliminaries in the case of presidential candidate so that we do not end up
with everybody trying to be a President but only those with national character and
whatever else we might want attached to the office. Thank you.
Prof. Yash Pal Ghai: Pastor is next on list and then Zein.
Com. Pastor Ayonga: Thank you Chairman. I want to go back to their qualifications
that are set for their President and Prime Minister. We were in many places told that not
only degree could be the answer, for me the degree is an added advantage to anybody
who has a degree, that is an added advantage but we should look at the people who have
had different categories of work, people who do not have the degree paper but people
who have got the degree of experience, who have done so much. Let me just use as an
example to illustrate this, take for instance, some like Nyachae, he had been a Chief
Secretary of this country and a very powerful Chief Secretary, very powerful. Mr.
Chairman you were not here during his reign but a very powerful chief secretary.
Mr. Chairman, why can’t I finish then he can read his point?
Prof. Yash Pal Ghai: You have the floor.
Com. Pastor Ayonga: What I am trying to capture here is that I am not saying there is
something wrong with the degrees but I would like for us to look at degrees as an added
advantage. There are so many people who have risen up in the rank and during rising in
the rank they have gone to school, they have taken courses, one year one time, six months
another time and they have been doing this over and over again and they have been
Page 66 of 138
Ministers in the past government. Now, how would you deny a person like this to tell
him that he is not qualified to be a President when he was a Minister? There are other
qualifications that we were told out there, stable families, good character, this and that. I
do not see anyone of them reflected here. Thank you chair.
Prof. Yash Pal Ghai: Zein is next on my list please Githu.
Com. Pastor Ayonga: Now, you can read your point.
Com. Zein Abubakar: Thank you Chair. A very quick one, for the avoidance of doubt
does vying for an elective position includes being put in the list for proportionate
representation? Just that.
Two, what does unsound mine mean in terms of disqualification. Mad is a societal terms
which has variation of degree of interpretation. Just that.
Then the last one Professor, the second last bulleting says, the breach of leadership court
should also disqualify a person for 10 years. I this not in contradiction with the one we
passed as a principle, one being barred for one election?
Prof. Yash Pal Ghai: Yes the assumption is that leadership code has high quality to it or
something, let us see what …
Com. Zein Abubakar: Then the question will be, will the grounds for breach in the
previous principle included in the code of conduct.
Prof. Yash Pal Ghai: I am not expressing a view. Are there any other points then I ask
John to respond and then see if we have any consensus. We have Githu next my list.
Com. Githu Muigai: A very quick comment. First a matter that probably is not one of
architecture but one definitely of philosophy and probably more for the interest of the
Page 67 of 138
draftsman or draftswomen. I think we should be careful with creating very important
principles in the Constitution then donating power to Parliament to abrogate them and if
you look at 6, there is Parliament should be given power to provide additional
qualification. If we think qualifications are important, we put them in the Constitution,
whatever the qualifications area. So that is one of philosophy and I am sure there we
have an idiom.
Com. Raiji: I am totally in agreement.
Com. Githu Muigai: Thank you. The next issue Mr. Chairman with your very kind
permission again responding to my friend Pastor Ayonga. If we want to guide the
draftsman, we must be able to isolate an issue capable of being capture in a rule
unfortunately because we are creating rules also. So when we say we want any other
qualification the draft must be able to say, what are those other qualifications. If for no
other reason Mr. Chairman so that people have to apply the rule or to whom the rule is
applied certainty in their minds that I have been a Chief, I have been an Assistant Chief
and that is in lieu of a degree or whatever else, so I would like to be more specific.
On page 7 and this is my last comment Sir because I do not want to impose on your
generosity. It is suggested by my good friend John Kangu and his team that the Police
and the Military should not be debarred from political activity. Again, and I raised this
issue yesterday, I would be concerned with that myself because one of the fundamental
values of the Constitution as I understand it, is the political neutrality and independence
of (a) the civil service and (b) the public service generally. Again we do not want to
open in good faith a door that can allow the politisarization of the military or of the
Armed Forces or of the Civil service. We know civil servants today are very politicized,
accept the draft lady and gentlemen and therefore we do not want that to happen sir and I
would like this if John and his group agree with that to be rephrased in a way because
what we want to secure for the Police, Military and the Civil Service are their rights as
citizens, it should not be taken away. On the other hand they should not be politicized.
Sir, thank you.
Page 68 of 138
Com. Mosonik: Mr. Chairman it was about that one on the military, civil servants and
the police actually we need to delete them. Just that one.
Prof. Yash Pal Ghai: Now, Raiji and then Dr. Nonow to follow you.
Com. Raiji: Sorry in fact this is point that I raised and I was told it was conceded,
actually it was not in that sense that it was conceded. The question of being charge
bankrupt, what we were dealing with in the morning it is the voter who is bankrupt, we
did say that yes he can vote but this is a candidate who is bankrupt or in the process of
being bankrupt but we read several books about. I think this is important that it be
retained rather, do not concede on this breach.
Prof. Yash Pal Ghai: By legislation.
Com. Raiji: Yes, I think that is all.
Prof. Yash Pal Ghai: Dr. Nunow have the floor please then Okoth.
Com. Nunow: Thank you Chair, I would like to make two brief comments. One is
regarding identification qualification. I think as much as it is important to have this
requirement in place I would associate myself with those who said that we should not
blind ourselves the realities on the ground as it is today and I would support what
Commissioner Hassan said regarding the past holders of office being excepted from these
qualifications. That being an additional qualification and the education requirement
being strict requirement for those who are making their first attempt or rather who have
never held the office before whether it is civic, presidential or parliamentary. That would
then leave us without much difficulty.
Secondly, I think the civil service and the military are crucial components of the
management of the country’s affairs and I think I would really be disturbed to know of a
Page 69 of 138
Chief of General Staff who had attempted to be a President and failed and went back to
forces because he was on leave.
Prof. Yash Pal Ghai: I said low-level civil servants.
Com. Nunow: At the military, it is not specified I think their qualifications but still
politicizing the military and the civil service much as it is already probably political. I
think we do not want to make that official and give it legitimacy in terms of mixing up
the roles. May be if one had left the service for good then that is what is the requirement
now, that once you resign you do not go back. You may hold other offices but not in the
same military or sensitive central civil service.
Prof. Yash Pal Ghai: Okay, Okoth and then ..
Com. Okoth Ogendo: Mr. Chairman only to add that it would be extremely dangerous to
give the military evil the inkling of the possibility that they might be in politics, let us
learn from South America where they split the position of Commander in Chief of the
Armed Forces from that of being the head of government and the Military are always
fighting with President’s, threatening Presidents with coup because they are not subjects
to the Executive.
Let us also learn from Indonesia that had in one of its many
Constitutions across that said the Military must be involved in development and the
military sat there and government was not involving it in development so it conducted a
coup on the grounds that they wanted to fulfill their constitutional functions. So, I think
we have to be very careful about that.
Prof. Yash Pal Ghai: Okay, Zein.
Com. Zein Abubakar: Chair in relation to what Professor Ogendo just said, this is a
point that rise in terms of the right to vote. Restricting the right to vote, should be
Military and the uniform forces have the right to vote? In other countries they allow the
uniform forces to vote a day earlier than others and the ballot comes in. In other
Page 70 of 138
countries they allow for the vote to take place and then the ballots are then brought to a
central place for counting so that there are no identification of what barrack supported
which ideological position. So, I am not saying we should but I am saying we should
deal with the question first before even dealing with the right to seek an electing post.
Deal with right, do they have the right to vote or not?
Prof. Yash Pal Ghai: Which cadre of forces are you talking about?
Com. Zein Abubakar: The Police, Army, Navy, Air Force, National Youth Service,
Administration Police and GSU.
Prof. Yash Pal Ghai: I thought we had agreed they would have the vote. They are not
disqualified so anybody not disqualified has a right to vote.
Com. Zein Abubakar:
Therefore, then under that category, we should give more
thought in terms of how do they vote?
Prof. Yash Pal Ghai: Well, we only need to worry about the technicalities of voting, we
leave that to legislation.
Com. Zein Abubakar: But we have taken a position that on matters of principle we
may give guidance as to what needs to be applied in terms of legislative framework?
Prof. Yash Pal Ghai: I am not quite sure I see the problem. The problem is that they
might not be able to vote, independently or…
Com. Zein Abubakar: If for instance they vote in what is designated under the law as a
secured security space, no monitors will be allowed in, what kind of campaign will be
allowed in a military installation and things like that.
Page 71 of 138
Prof. Yash Pal Ghai: They should go to public meeting you do not need to have it
inside the barracks but may be they can attend campaign meetings as a general public
can.
Com. Zein Abubakar: That is assuming that, that will be allowed as the law because
when you join the military you do not give up your right as a citizen but you are also
bound by the military code which means that if you are for example on duty or exercise if
a Commander wants to take away the right, he can ask the particular battalion to go on
exercise during election time. What happens? Those are the gray areas I want us to look
at.
Prof. Yash Pal Ghai: Would it held where we talk of secret ballot, we had something
else like free vote, informed vote or something like that.
Com. Zein Abubakar: We need to give thought a little broader.
Prof. Yash Pal Ghai: If you can give us a recommendation we can settle that.
Com. Zein Abubakar: Thank you Professor.
Prof. Yash Pal Ghai: Hassan and then Charles.
Com. Hassan: Just a comment on Zein’s concern. I think most of the things he is
raising are extremely important and thing we need to take into account but I am
wondering whether these are issues which may be left to legislation while you secure the
substantive fundamental right in the Constitution and then perhaps you leave it to the
legislative to providers. May be we should be ready to consider that and another thing
we can do is go into those details in the Constitution.
My second point Mr. Chairman is that if these recommendations which seems to be
giving Parliament a lot of leeway to prescribe other things. For example, under bullet
Page 72 of 138
number 5, Parliament should be given powers to provide additional disqualifications,
Parliament will also specify that the holder of a particular office shall or shall not be
disqualified. Number 7, Parliament may also provide a person who has held an office at
the ground for disqualification may be disqualified for a period of …months after he or
she cease to hold the office.
I would rather we either specify what those officers are or those stake are, we do not
leave it to Parliament to do that, I think is a little bit a gray area for me and for the
independent candidate. Mr. Chairman this morning I raised it but I was told by Kangu it
was coming later and now I see it has come, I heard Honourable Asiyo obviously talking
from experience the point she has raised but again we need to consider what I mentioned
this morning. The possibility of a constituency being flooded with so many candidates
that they end up confusing the voter, I do not know whether we need to qualify the right
of independent candidates to stand for elections as Members of Parliament, we need to
put there some thought I do not know whether the task force has put some thought into in
and whether they have looked at comparative example and I am still waiting for an
answer on that John.
Prof. Yash Pal Ghai: Githu.
Com. Githu Muigai: I would also like to add to that and I a seeking a clarification. If
the President is an independent candidate or rather I should put in differently. Is it viable
that a President should be an independent candidate if the government in the National
Assembly is his government and if a vote of no confidence may pass against the
government?
Prof. Yash Pal Ghai: We have not come to that.
Com. Hassan: Actually that is my next point he has taken it from me. I was saying
Chairman that like for example Kenyans say that a President must have a running mate as
a vice President, who cannot be sacked as happened and that person should be able to
Page 73 of 138
continue the remainder of the terms of service of the President or should be reigning as
the President. So may be again you will want to put in as one of the qualifications for
elections of President that he must have a running mate, if he does not have one then he
cannot qualify to be nominated to become a President so we do not have vacant VP
positions and then Mr. Chairman.
Finally, the issue of the military, I think….(not complete) but should not have to resign
their posts these days until they are elected. I think we should retain our current position
and people should not be at all be involved in politics. I mean we know, the lower civil
servants or police even private like Private Ochuka will be want to capture power,
Sergeant Samuel Doe there also 5 Lieutenants who have captured power, I think we
should not open up this for them.
Prof. Yash Pal Ghai: Okay, thank you. Charles in next on my list then Nancy and then
I would like to round up please.
Com. Charles Maranga: Mr. Chairman, I want to start by commenting that the first
recommendation, participation in governance at different levels require certain
qualifications. As far as I am concerned that statement is not clear, you need to be very
clear what you mean by that.
Prof. Yash Pal Ghai: This is a general principle, it is not a rule.
Com. Charles Maranga: If it is a general principle fair enough, I proceed on now to
some specific points. Mr. Chairman the national ethics and integrity Commission, I will
be more than happy to know the composition and how many persons will be in that
Commission if it is going to be in place.
Prof. Yash Pal Ghai: It has been passed.
Page 74 of 138
Com. Charles Maranga: Alright I am sorry I was late. Then the issue of rights to vote
for the disciplined forces, Mr. Chairman may be we might not allow campaigns within
their barracks but Mr. Chairman I think these are people who have gone to school and
can make their own decisions without necessarily campaigns going on. So I think it will
be one of the requirements that there will be no campaigns in Military Barracks but Mr.
Chairman those people who want to vote can also inquire from wherever and then they
make a decision because Mr. Chairman I foresee a situation if there are going to be
campaigns in Military Barracks, people might start firing at one another because they are
agreeing as a matter of principle. So I think it will be a problem, I do not think we should
allow campaigns in Military Barracks or Police Stations such like things.
On the issue of independent candidate may be for example a President becoming an
independent candidate, I think Mr. Chairman we should not pre-empt that subject until
the other groups present their report about the organs and levels of government. Thank
you.
Prof. Yash Pal Ghai: Well let me try to sum up to say if we have a consensus.
The first bullet is just a general principle. The second bullet has not so far produced a
consensus. When I looked at the print out I notice a very long support for independent
candidate, I can see the points which are being made but you know one of the points that
people have told us again repeatedly is to limit the number of parties. I think one reason
we have so many parties is that they would want a party to nominate a President, it is like
buying company by yourself, you just form a party in the hope that could sell it later on
or use it. So I think having that that requirement that you have to be nominated by a
party thus leads to the creation of parties, as a matter of balancing this different interests.
Again we could look at the role of the rule about independent candidates, separately for
the Presidency and for the National Assembly. Chances of independent candidate wining
the presidency must be very remote, we now really have party politics and if some of us
want to stand let him over stand. I do not see a very clear consensus on this, is that right,
Page 75 of 138
I mean there are some supported the idea of independent candidate and some oppose
that? So you have a different sense?
Com. Kangu: Mr. Chairman, my sense is that there is a consensus, that we have it but
the worry is on how to put in place mechanics that can avoid abuse.
Prof. Yash Pal Ghai: Are there any suggestions on that point?
Com. Nancy Baraza: There should be consensus on it and seeing how women have
suffered in our political arena, no political party nominates them. I am just reinforcing
the need for independent candidate.
Prof. Yash Pal Ghai: Do should actually agree on the principle of this.
Com. Kangu: We formulate the constituency.
Prof. Yash Pal Ghai: Please let us have order. Yes Raiji.
Com. Raiji: I think there are two levels. There is a question of the President which I
suspect there is consensus that we do not need independent candidates and there is a
question of MPs.
Com. Githu Muigai: Point of order.
Com. Githu Muigai: I think Professor Okoth Ogendo does not capture because you told
me sir when I raised the issue that I should not preempt debate on that one because
another group is presenting on it. So I will be surprised if the consensus has emerged
before debate. Where we have complete consensus in my view is on MP.
Prof. Yash Pal Ghai: Alright let us notice that because some people are have said let us
get the recommendations of systems of government before we decide on the Presidency
Page 76 of 138
and the question of running mate.
For the time being we decide that independent
candidates may stand for Parliament, we will give some thought on how to restrict the
number of those who might want to put themselves forward.
On the question of age, I think …
Com. Kangu: So how we resolve the issue of the President?
Prof. Yash Pal Ghai: I think we will come back to that. Let us look at the system of
government proposals.
Com. Hassan: Mr. Chairman I think we agreed on the Members of Parliament and the
Councillors?
Prof. Yash Pal Ghai: Yes, that is what I have stated here. The next proposal is about
the age and this is dealing with the presidency so may be we can leave that until we look
at the system of government.
No. 4. I assume we have basically agreed on the list.
Com. Lenaola: What is unsound mind?
Prof. Yash Pal Ghai: I think the question of one’s sound mind is what method we use to
determine, we surely would not want a President with unsound mind or MP.
Com. Githu Muigai: As the mental health Act in Kenya it states out very clearly who is
of unsound mind.
Prof. Yash Pal Ghai: Is it a certification process or something. Zein has the floor and
then Charles.
Page 77 of 138
Com. Zein Abubakar: Is Dr. Githu Muigai giving us a suggestion on how we should
interpret the unsound mind or stating the position of the committee that actual health Act
he is making reference to is the one which has made them put this qualification there?
Com. Kangu: He does not belong to the committee.
Com. Zein Abubakar: So he is making a suggestion. Could we have John say exactly
what they mean that? I am interested in the methodology of ascertaining because it could
be open to some about and we have received views from people on discrimination on
mental health. That is why I am asking exactly what does that mean?
Prof. Yash Pal Ghai: Could we leave that as a definition clause to say, unsound mind as
determined under the health Act or something like that. I assume the health Act has
safeguards, I must say I have read it myself but I assume it has sufficient safeguards that
the person would really have some mental serious deficiency could also be defied. I
think there seems to be some consensus on number 5 which is that we do not want to
leave it to Parliament to impose decision on these qualifications.
Com. Wanjiku Kabira: I thought on 4 we agreed that they remove (a) because we have
recommended dual citizenship elsewhere, is that correct?
Prof. Yash Pal Ghai: That is right, I think we have all crossed that, thank you for
remind me. Yes that first one goes out.
Com. Kangu: Number 4.
Prof. Yash Pal Ghai: We want you to keep in because we are distinguishing the right to
vote from the right to stand for elections and since so many people have complained to us
about the low moral standard of their MPs, I think anything we can do to eliminate those
standards will be welcome.
And I think 5 we delete so that any additional
disqualification would have to be as a result of amendment of the Constitution. Similarly
Page 78 of 138
I think for 6. I think the reason for 6, my understanding is as follow if you may not want
to keep it.
The Constitution as the moment list certain offices whose holders are
disqualified, I can not remember on Judges etc.
The thought was that it may be that after the Constitution is enacted, new offices may be
created by law and that law which creates new office should be able to specify if that
office holder will be disqualified but may be if it fits strongly on that then we could say in
that case the Constitution should be amended to put in that office holder in that section,
listing the person to qualify. So if you like we could delete 6 but I give the background to
that because clearly offices which exist at the moment and the holder are disqualified
must be in the Constitution. But as offices are created subsequently we also may wish to
put in that but we could do that to an amendment if that is a wish.
Com. Maranga: Mr. Chairman, I want to support that we delete 6, six has not bearing
Mr. Chairman for example when you say that not exceeding 6 months I think it does not
make sense, I think Mr. Chairman that clause should just go.
Prof. Yash Pal Ghai: We might not have a honey bone provision but there is of course
at the present Constitution I am sure all understand does have a section which lists the
offices whose holders are disqualified for election unless they have resigned and then
there is a more general clause that the Minister might specify additional offices for that. I
do not like that second bit particularly when the Minister can specify who such office
holders are but it is a suggestion here that this rule should entirely disappear so that any
person can resign the day before the nomination and be allow to be nominated.
I do have no views myself that is why I believe in allowing as many people as would
want to stand but let us be clear on what we are thinking. Yes Doctor.
Dr. Nunow: Thank you Chairman. I think there is need to very clear in our minds the
offices in question. Yes I know the civic general and any officer would be disqualified
by virtue of holding that office but this office could have been used for ones political
Page 79 of 138
interests and ambitions using public resources while in that office and waiting until the
last minute might create a problems. I am not saying the six months or longer or less is
ideal but we need to think and some caveat indeed to ensure that no hold of public office
uses the office for campaign during the period before the election and just resigns when
whistle is blown, a week to election.
Prof. Yash Pal Ghai: Okoth and then Charles again.
Com. Okoth Ogendo: Chairman, let us remember our old history, this provision came in
basically as a way of winning out so called disloyal civil servants it had nothing to do
with the use of public resources by civil servants. It has become an instrument of great
oppression and terror within the public service. I think public servants who want into
politics should take leave, campaign if they loose they should go back to their jobs.
Prof. Yash Pal Ghai: We will come to that second point later but I want to get a sense
of this Commission. Are we going to erase this particularly because there is an existing
rule which says that office holders or particular holders of public offices are disqualified
from standing election until they have resigned so 3 months before the elections.
Com. Okoth Ogendo: Now they have been asked to resign and nobody is
Prof. Yash Pal Ghai: That is irrelevant, the point is do we want such a rule or not
Com. Maranga: No we do not want that rule.
Prof. Yash Pal Ghai: Let me just get a sense of the whole subject. What is the sense of
the house, we do not want such a rule?
Com. Lenaola: There is a contradiction in the rule of ethics.
Page 80 of 138
Prof. Yash Pal Ghai: No, it is not a contradiction, I can resign in honour if I want to
stand elections.
Dr. Nunow: I think we must distinguish two things, the fact that such a rule has been
abused in the past because of abuse of power does not mean that it may have not sense.
My understanding is this. When elections are declared or about to be declared because
we are hoping that there will a definite election period, I think in no fairness it is
necessary that holders of a public office who are funded by the public should not secure
much on their colleagues by using this office or positions which they hold to the office
for personal need. I have in mind Chair like the present situation where a campaign is in
full swing using government resources so I think if a public servant want to go and
contest an election he should resign at least even if it is one month or two months some
period before so that there is no conflict of his official duties and those of his personal
duties as an intending aspirant of some post.
Prof. Yash Pal Ghai: When the person is a civil servant he cannot campaign anyway, so
we are talking about the period after nomination and then the person would have had to
give up his seat. So I do not see a conflict of that kind you are describing.
Com. Nunow: After nomination?
Prof. Yash Pal Ghai: Yes then the person would vacate the office.
Com. Nunow: No but you see the campaign is before nomination.
Prof. Yash Pal Ghai: Yes but he cannot do that, that should not be allowed under civil
service regulations.
Com. Nunow: It is happening now.
Page 81 of 138
Prof. Yash Pal Ghai: Well it may be happening but we cannot be along with what is
happening we are trying to change things. Charles if you must speak, keep it very brief.
Com. Charles Maranga: Mr. Chairman this is what we call bad law, if we are going to
put it as one of the constitutional principles or laws then we are missing the boat. This
law will actually contradict so many other clauses which you are going to recommend.
Mr. Chairman we have put checks and balances in many areas, we have the fundamental
rights, we have so many other chapters. So I feel this law is going to be misused because
somebody can decide to resign just within 30 days and it does not mean that those 30
days are the ones which are most critical. So, I think the most important thing is that this
person has been in that process for a long time and if a person so decides, I do not see
what is wrong with that because Mr. Chairman as far as I am concerned this law has been
misused and is not good law let us delete that clause.
Prof. Yash Pal Ghai: Salome and then Zein and then I hope we can conclude this. Did
have something Salome? Okay, Bishop.
Com. Bishop Njoroge: Mr. Chairman this I hear is turning Kenya to be a country of
politicians because when the law is reversed relaxed as any civil servants are going to
resign because they know they will go back. You may have a bunch of people doing all
sorts of thing and the office is left without people. I think the reason why it was put there
is to protect civil service because civil service as a branch of government must be
protected and once we allow that, many people will be involved and I do not know what
we will do with the civil service. Therefore Mr. Chairman, I propose that we retain that
rule.
Com. Zein Abubakar: The difficulty I have in relation to this law is that it applies to
this Commission, does it not?
Prof. Yash Pal Ghai: Yes it does apply here.
Page 82 of 138
Com. Zein Abubakar: Therefore when it does, purely on matters of principle if we
make propositions for or against, that might be misrepresented later on to mean that we
are advancing out opposition. That is my position, thank you. I know Professor is
intimidating me with the shaking of the head but that is my position. Thank you.
Prof. Yash Pal Ghai: May be one way to deal with that is to make recommendations
that we think quite objectively the good rule but indicate in a draft through square
brackets or something that this does affect the Commission or something acknowledging
that because it is an important rule and I would not want us to leave that by default. May
be we could raise this as an issue and put it to the conference to refer to it. Salome and
then Okoth.
Com. Zein Abubakar: Then Professor I would like to make my comments when we
come to the other part in relation to can they go on leave and come back.
Com. Salome Muigai: Thank you Mr. Chairman, I would like to add my voice to people
who believe that we should separate civil service from the politics because telling people
that they can go and campaign and if we fail we can come back. What happens if I am
working for somebody who got in and comes in as my Minister? I see a conflict of
interests here, I think people should either be civil servants or politicians.
Prof. Yash Pal Ghai: General just for information that about half of the countries of the
world have a system that has been proposed here that people are regularly given leave in
most continents even European Countries, if they win and they do not even loose their
civil service positions, they just take leave. If they loose they come back so it does not
necessarily cause a conflict but we are brought up in a tradition where we have this one
view I am not talking as wrong view but one view about the total isolation of civil
servants from politics but the societies have a different view. They feel everyone should
be free to compete, even Army Officers should be free to compete and if they do not get
elected they go back to the work, if elected they can leave for 5 years and so on. So there
Page 83 of 138
are different ways of organizing it and I do not think it follow inevitably that you get this
out. Sorry I do not want …
Com. Okoth Ogendo: Mr. Chairman that is basically the position that I am taking and I
know that as a matter of historical record, we did not come out with this rule because we
thought it was an objectively good thing. We did it to punish the civil servants and I can
go back to the history and tell you exactly who provoke this particular rule.
Com. Hassan: Tell us, toboa.
Com. Okoth Ogendo: So, I think what we are saying here in my view is, let everybody
compete, if the person is competing and he is a civil servant le them take leave and
campaign if they win they stay if they do not win they will come back and be bound by
civil service regulations. The fact that you have campaigned does not mean that you are
so polluted with politics that can be an objective civil servant.
Prof. Yash Pal Ghai: What I am going to suggest is this, that we limit the debate on this
only for the reason has so far mentioned but if we gain a consensus in the next 5 or 10
minutes fine, if not we square bracket and we say that this issue was discussed, we were
not able to agree, also we felt the constrain because it affected us as individuals but this is
an important principle and let the conference decide.
Com. Kangu: Mr. Chairman I would like to say that: (1) A large number of people who
made submissions to us particularly from the teaching profession lamented this rule.
(2). Mr. Chairman, I want to go back to the ideology which we adopted yesterday and we
are talking about effective and quality government that can be able to discern the welfare
of the people and serve it. The experience we had in the villages particularly at the local
government level and which we are trying to capture by setting limitation on the
educational standards is that, a lot of Councillors are people who are not well
intellectually prepared to handle the matters of the welfare of the people and well blessed
and informed people in the villages who could take up these positions are school teachers
Page 84 of 138
and they find it a bit scary to give up a job they are sure of to go and contest a seat they
not be sure of. If we allow this, I can see a possibility of our starting to improve
governance particularly at the local government level. We will get teachers and other
people in employment going to seek those positions because they are assured that if they
do not succeed they go back to their jobs but the experience we have is that, many times
you find they are left to people who think they have nothing else to do and the voters find
themselves with no other choice and they are forced to take this kind of people. So on
the basis of our ideology then we are seeking to improve governance which is based on
quality leadership, we must look at our experiences and open up ways that can give us
quality leadership.
Prof. Yash Pal Ghai: Can I just take a strong vote, we have not give up on consensus
but let us have a broad idea of what we are thinking now at the current stage and those
who think there should be no rule of this nature. In other words, the civil servants should
be able to resign just before the nominations period then either resign or take leave, we
can work out that later, that should be allow. Those who support this rule could you
please raise your hands?
Okay, let us put in differently, those who support the existing rule, please raid your
hands? The present rule which is indicated here?
Com. Salome Muigai: I am not for that.
Com. Pastor Ayonga: We are not for that.
Prof. Yash Pal Ghai: That is on the Constitution, there may be some capture on that, the
I that right Margaret? Do you have it?
Margaret Nzioka: Section 35 of the Constitution, sub section 1, paragraph f. I can just
read from the top it says: “A person shall not be qualified to be elected as an elected
member if at the date of his nomination for election, he is acting in any office in the
Page 85 of 138
public service including the office of Judge or a member of a Court of Law or an office
which section 59 applies”. So I think it is all public office.
Prof. Yash Pal Ghai: Yes it is all public office.
Com. Okoth Ogendo: The devil is in the Act not that position, the one that says you
resign in advance like now they announced in August and we do not even know what the
date of election is and that is where the devil is.
Maragaret Nzioka: The rule on resignation is actually in our code of conduct of civil
servants.
Prof. Yash Pal Ghai: Anyway it does not matter where it is and what the period is, I
may be wrong about six months may be 3 months, what we are talking about is the
principle. So what I want a strong vote on is those who are saying there should be such a
rule, requiring resignation three or six months before nomination date. Could you raise
you hands.
Com. Zein Abubakar: Mr. Chairman, I would be interested to know how you formulate
the other part, if you formulate it in the term that, those who would support a judge to
own office but at the same time runs for office, that would mean something very
different. I think what Professor Ogendo is saying, if the devil is in the legislation then
we work with the principle and specifically say the devil must be taken out from the
legislation.
Com. Raiji: On a point of order Chair.
Prof. Yash Pal Ghai: Yes.
Com. Raiji: I think it is very imprecise we do not seem to know exactly the degree of
what is it that we debating although we understand in general terms and I think in
Page 86 of 138
accordance with the precedent that we formed, it is clear that we do not have a consensus
like Hassan says. Why don’t you ask them to refine it and come with something a little
bit more specific because I think as Zein say, if for example a Judge I think there will be
a cause for alarm, if it is a teacher for example, I think people would not be too serious, it
is a military man it would be very serious. So I think perhaps let them rework and rewind
it and then we can probably look at it. For now, we have no consensus on that issue let us
go to something else.
Prof. Yash Pal Ghai: You have listen to me Mr. Raiji please stop. What I said was I
want a broad stronghold. You know what strong hold means? I have not to see whether
there is or not a consensus.
Com. Raiji: On that whole issue, that is what I am saying this is not clear.
Prof. Yash Pal Ghai: I am cannot make it any clearer, the rule is that if you are a public
servant you have to resign so many months before the election if you want to stand.
Com. Raiji: How many months?
Com. Phoebe Asiyo: Point of order Mr. Chairman. Mr. Chairman almost everywhere
we went people advocated for devolution of power, when we devolve power to lower
level organs, we are going to need trained minds. Most of these trained minds are either
in the teaching profession, nursing profession.
Prof. Yash Pal Ghai: I do not want a debate on the issue I am taking procedural
question. You are raising a point for substantial argument, you will have time for that
later but I am just trying to work out a procedure. What we do with this, do we just leave
it now or do we take back to the committee? I want to sense on what people are thinking.
Page 87 of 138
Com. Phoebe Asiyo: In that case what I think we should do Mr. Chairman, I think we
should agree that those in the civil service could go for election and if when they are
defeated come back to the service.
Prof. Yash Pal Ghai: Please respect my position as chair, I putting an issue do not
quibble about two or three months Raiji, it is a serious question it does matter whether 6
months or 3 months. It is a matter of principle and I would like your strong vote on that
if you think we should retain the rule, put up your hand? If you listen to me you will
know exactly what you have to do. If you support the retention of the present rule, please
put up your hand? We can have a break if you like.
Com. Mosonik: You if will please allow because John has a sense of what we have
discussed because there are those of us who also agree with what the people have said.
John made the point more eloquently, people have said teachers want to go into
leadership but then they are also held up by this position but then if you open up the
perdurable I think you allow the Military and everybody else to come through you are
going to get a bigger problem. So when you frame the question like the way you have
done now, I am going to raise my hands because now I would be trying myself to
something which I do not support. I do not want for example to bar teachers from vying
for elections but I want to bar the military from vying for elections. Now, I think we
should remit back the question to the committee and please let them go through it and
formulate again.
Prof. Yash Pal Ghai: I am a bit reluctant to remit it back to the committee because we
have all sat here, we know what the arguments are foreign against and I think we should
decide. Charles please let me run the meeting. So I please we could have a five minutes
break and then let us come back and see if we can dispose off this question.
Com. Maranga: Chairman I would like to comment.
Prof. Yash Pal Ghai: Do it when you come back.
Page 88 of 138
(Break)
Prof. Yash Pal Ghai: Hassan has some suggestions to make but we will take them at the
end when we have resolved these issues. We left at the point when we were discussing
the question about the disqualification of public servants and I wonder if there is a
consensus. If there is a consensus can you state it please for us?
Com. Githu Muigai: Mr. Chairman as I understand it, the consensus is to allow all
public servants the freedom to contest in any election and to return to their jobs as they
may wish except for constitutional office holders and members of the discipline forces.
Prof. Yash Pal Ghai: Is that the consensus of people outside as well?
Com. Githu Muigai: Yes it is Mr. Chairman.
Prof. Yash Pal Ghai: That was my … they are saying that civil servants should have to
resign one year before the elections?
Com. Githu Muigai: Anybody who has served in a Commission established by an act of
Parliament would be covered in the exception. I can repeat the same that, we would like
to permit all public servants howsoever described to have the liberty to contest elections
and to return to their jobs as they may deem necessary after the elections without penalty
save for holders of constitutional offices and members of the disciplined forces for the
avoidance of doubt this excepts without, I think we have capture enough.
Prof. Yash Pal Ghai: Okay, well if that is the case then.
Com. Raiji: I was just going to say that system of resign is going to prevent us from
contesting but we should say leave.
Page 89 of 138
Prof. Yash Pal Ghai: That is leave of absence. Yes.
Com. Githu Muigai: Mr. Chairman I see the point that Professor Crab makes and I
think it adds to the spirit behind the proposal he was playing. I think we should state it in
the affirmative that any public servant shall be entitled to leave for the purposes of
contesting any election except for, the draftsman would put it that except that public
servants for this purpose does not cover the holder of a constitutional officer or a member
of the disciplined forces.
Professor Crab: Unpaid leave.
Prof. Yash Pal Ghai: Unpaid leave obviously.
Com. Githu Muigai: But without loss of other benefits.
Prof. Yash Pal Ghai: Okay, thank you very much I think we can proceed now. That
was bullet point 6, now we go on to 7. This was a question of education qualifications, I
am not sure if we had a consensus on the following proposition that we should require a
degree but we should in the transitional provisions specify that those who have held
public office should be excepted from this. Was that the agreement? Parliamentary
public office should be?
Com. Kangu: The exception on the degree Mr. Chairman, we should be clear that we
would not be exempting a person who has held the position of a Councillor before to
allow him to contest the position of an MP if he is not qualified. If he wants to contest
the position of a Councillor then he is exempted, If an MP wants to contest the position of
an MP, he would be exempted. If one want contest the position of a President he would
be exempted but we should not allow one person carrying the exception from one office
to the other.
Page 90 of 138
Prof. Yash Pal Ghai: We should exempt the judiciary from this rule. We are talking of
elective offices only as I take it, dealing with elections. May be we should say to elective
office, make it clear that it does not apply to all categories of public servants. Okay,
thank you very much and I think age is a general principle rather than rule.
9 is disqualification rising out conviction for corruption or dishonesty. If a sentence is
more than 3 years is that what this meant? We said that exclusion should be for 10 years
but the reference to access of 3 years is to sentence or three years or more. Looking at
bullet nine, we need to put the word sentence.
Com. Raiji: It is said to serve a sentence for a period not exceeding 3 years, I think we
should…
Prof. Yash Pal Ghai: Sorry.
Com. Raiji: Is it the sentence that is the criteria or it is a conviction?
Prof. Yash Pal Ghai: Conviction and sentence to access of 3 years, otherwise it makes
no sense to talk of…
Com. Raiji: I am jus thinking because I imagine the principle is that if one was convicted
for corruption yesterday but I imagine they wanted to say in the preceding so many years
so that do not look a the entire life history of the fellow in the preceding 3 years.
Yesterday we had also referred to the 5 years.
Prof. Yash Pal Ghai: Have you read the section?
Com. Raiji: Which section?
Prof. Yash Pal Ghai: Bullet nine.
Page 91 of 138
Com. Raiji: Yes I have read, it is not clear that is why we are discussing. I am saying,
the three years appear to me to have been meant to prefer that a conviction that took place
at three years ago in the preceding three years and I am proposing that because yesterday
we agreed that disqualification is for one term then perhaps we should apply the same
uniformity instead of penalizing it for 10 years.
Prof. Yash Pal Ghai: No, here we are talking of candidates not voters. That we can
require high standards for candidates and for voters. I would support this because I know
of many countries where people have come out of jail and they have been elected because
of ethnic votes. John please clarify exactly what you had in mind with nine. Let John
explain so we know what we are talking about.
Com. Kangu: I think what we had in mind was the sentence carried to be three years
and above but I think what Raiji is saying is equally useful and we can add it there so that
we do not bar someone, we do not look for offences that were committed many years ago
but we are trying to capture offence that have been recently or convictions that have been
recently made.
Prof. Yash Pal Ghai: But you covered that by saying 10 years after release.
Com. Kangu: Oh, yes fine.
Prof. Yash Pal Ghai: You have covered that point in overheads.
Com. Kangu: No, there are two principles, you remain disqualified within the first 10
years of being released but for you to become disqualified, it must be a conviction that
falls within a period of 3 years by the time the disqualification is coming so that if
elections are coming today, we do not want to blame someone for a conviction that was
done 10 years ago.
Prof. Yash Pal Ghai: By then 10 year period would have expired, wouldn’t it?
Page 92 of 138
Com. Kangu: We will think about it and rephrase it.
Prof. Yash Pal Ghai: Let us save the principle, what you are proposing here is that a
person convicted of corruption or dishonesty should not be under sentence for 3 years or
you want to omit that reference.
Com. Kangu: Let us use both as 3 years sentence and the other one we will try to
rephrase and see how it comes out, let us say a sentence of 3 years.
Prof. Yash Pal Ghai: Basically we all understand what bullet 9 is that you disqualify for
standing for a period of 10 years after you are realized from prison, if the reason you
went to prison was conviction for corruption or dishonestly the sentence was in excess for
3 years and this incident took place 3 years before the coming into operation of the
Constitution, something like that. Does that capture all the points? Can we leave the
draft persons to do this? Let us hear Charles.
Com. Charles Maranga: Mr. Chairman I think it will be nice if we maintain a certain
standard, we have said that anybody for example, who has been jailed for more than 6
months should not be able to stand. So I think any sentence for more than 6 months
rather than 3 years then that would be easier so that even that period which you are trying
to put preceding whatever then it does not come in. Six months you know somebody
must have been jailed somewhere around that time and Mr. Chairman I also want to
amend, instead of 10 years, let it be 1 terms, that means 5 years.
Prof. Yash Pal Ghai: Yes.
Com. Okoth Ogendo: Have we agreed on the term?
Prof. Yash Pal Ghai: What is proposed here is disqualification for 10 years, Charles say
5 years, let us hear Dr. Nunow.
Page 93 of 138
Com. Nunow: Mr. Chairman I do not know our problem with the framing of the
principal but in this country we have had history of framed up charges, we have a lot of
political convictions but has no merit absolutely even in the eyes of the public and they
are may be for 3 years, 7 years and name it. I think this is something we need to deal
with because we will be excluding genuine advocates of democracy who would be
framed up in the name of corruption or dishonesty and convicted.
Prof. Yash Pal Ghai: Are you referring to people who have already been convicted or
are you anticipating similar abuse in the future?
Com. Nunow: I think so.
Prof. Yash Pal Ghai: We can certainly exclude those who were convicted before we
could start it from the time of the Constitution.
Com. Nunow: I think then probably we will just hope that it does not get repeated.
Prof. Yash Pal Ghai: Well, we will have to be vigilant. I mean to some extent operate
on the assumption that we will a good Constitution order in the future otherwise we will
get too many of those difficulties. The Judiciary will be removed, do not quote me on
this by the way. All right, then we go on to bullet 10, the breach of leadership code
should disqualify a person for 10 years.
Com. Githu Muigai: We must have a philosophy of rehabilitation of offenders and
Mama Asiyo may want to make a comment about that. Our entire system of criminal
justice is based on the assumption that an offender can and ought to be rehabilitated.
Prof. Yash Pal Ghai: When did you last go to a prison? I know you go to prison often.
Page 94 of 138
Com. Githu Muigai: I do not want to say woman because I do not know. A man who
has fallen by the way side by what my friend the Bishop would call the temptations of the
devil. We must assume in his favour that having paid his dept to society he can be
rehabilitated and become a useful member of the society and we need to give people an
incentive to reform and I think 5 years is enough punishment.
Prof. Yash Pal Ghai: Kangu.
Com. Wanjiku Kabira: Sorry, I was seconding that argument that we reduce it to 5
years.
Prof. Yash Pal Ghai: Zein.
Com. Zein Abubakar: Chairman in relation to what is appearing on page 4 which is
conviction of election offence or being declared in an election petition case to have been
guilty should debar one from one general election. I suggest that we retain that principal,
either in that formulation or in what Dr. Githu is saying barriers but let us not have both,
either one election or 5 years.
Prof. Yash Pal Ghai: We are talking of two different categories of 5 years?
Com. Zein Abubakar: I understand that Professor I am just saying let us maintain
standards for the reason given by Dr. Githu, either one election term or 5 years.
Prof. Yash Pal Ghai:
I am repeating a point I made earlier. Since people have
complained so much about the standards of their leaders I think we are justified to
making a distinction, people right to vote and the right to stand for election. That is all.
Com. Zein Abubakar: True Chairman but not in relation to 5 extra years.
Prof. Yash Pal Ghai: Anyway, what is the wish of the house? Kangu.
Page 95 of 138
Com. Kangu: Chairman, we must think in terms of the mischief and I think the worst
mischief in Kenya today in leadership is the question on quality and this question of
ethics in leadership and we must be able to make a clear statement to the Kenyan people
that we are saying this time round, we are going to give very serious thoughts and
emphasis on the kind of leadership we are going to have. For that reason, I would urge
that we distinguish this question of leadership from any other questions. Somebody
many stumble and commit a little offence and we can disqualify him for 5 years but when
it comes to the high office of leadership, we must demand high standards and we must
send this message clearly to the people that we are fed up with leadership that does not
care about the ethics of leadership, that does not care about any code of leadership, they
can do anything and tomorrow they come back. We must make this statement clear and I
think 10 years is sufficient to make that message clear.
Prof. Yash Pal Ghai: Salome.
Com. Salome Muigai: I do not have anything to add Mr. Chairman. Thank you.
Prof. Yash Pal Ghai: Lenaola.
Com. Lenaola: Mr. Chairman I would with the same passion as John.
Prof. Yash Pal Ghai: But with the same conviction?
Com. Lenaola: No, but I still believe that Dr. Githu’s argument that we need to
rehabilitate those who have been convicted although we know they have done mistakes in
the past. I think one five year term is sufficient for someone to be cleaned up of his
messes. 10 years is punitive and I do not think it is a fair issue to indicate in the
Constitution that you cannot turn up for 10 years, so 5 years to me is reasonable to the
electorate and to the candidate.
Page 96 of 138
Com. Githu Muigai: A point of information if you give me a second. One of the most
important crusaders against corruption in the Kenyans Parliament today was a man
convicted by an election court of an election offence alleged to be whatever.
Com. Lenaola: And I hatch it for him.
Com. Githu Muigai: No, this is Musikari Kombo and I think he has done an admirable
job since his return to Parliament. I think we can loose a lot of people if we take too high
a standard.
Prof. Yash Pal Ghai: I am going to stop this debate, I get clear sense that it should be
five years it is not a decision that I have put myself, I should add, I have seen many
politicians in many countries who immense the huge fortune, get out for 5 years then
come back start bribing electors all round. I have seen this again and again but I also
respect the sense of the house and so 5 years it shall be.
Okay, number 11, I think there was some comment on that, I think people said that the
principle of requiring declaration of wealth and sources and I should tell you that a law
was passed in India recently which requires all candidates to indicate what taxes they
have paid in the last 5 years and some certificates from the tax authorities that they are
satisfied that all due taxes have been paid. That is just an example of how, if you are
really concerned with ensuring integrity you should use such mechanisms but I believe
there was some negative comment on this point I think from Githu again on bullet 11.
Could people please turn over the page?
Com. Githu Muigai: It is not hostile having a reaction of ethics, all I was saying is we
rationalize the process so that it does not become bureaucracy that can impend the free
right on individual to run for office.
Page 97 of 138
Prof. Yash Pal Ghai: Basically you are stating the principle that rules for nomination
may require declaration of wealth, it is a bit vague at the moment John do you have a
slightly more precise formulation?
Com. John Kangu: We all put all details with your assistance and the assistance of the
others.
Prof. Yash Pal Ghai: Okay.
Com. Maranga: A point of order.
Prof. Yash Pal Ghai:
Charles, I have the authority to restrict the number of
interventions a person might make and I have been trying to use it but please go ahead.
Com. Maranga: Mr. Chairman, I think there is another group which presented a list of
commissions and I do not think, is it John? So Mr. Chairman I want to know the
relationship between this national ethics and integrity commission and the other
commission which proposed.
Prof. Yash Pal Ghai: This commission was approved as an appropriate body for anticorruption measure, so this has already been approved.
Com. Maranga: Professor Okoth Ogendo, please I will also tell to take the files at
bream. Thank you.
Prof. Yash Pal Ghai: I think bullet two we have already taken care of in our earlier
decision about the public service. Bullet 13 is more on a question of drafting, clarifying
the different categories and I take it as more of drafting point than a point of substance
and I assume we have no quarrel with that. We have already discussed independent
candidates, it is in relation to the National Assembly and we said we will come back to
that for the Presidency.
Page 98 of 138
The next set of recommendations begin on page 8, is that John?
Com. Kangu: Yes.
Prof. Yash Pal Ghai: Sorry page 7.
Com. Kangu: Page 7 is related to what we have done because it was on qualification,
moral and ethical so may be we can look through quickly and then move to page 8.
Prof. Yash Pal Ghai: Yes.
Com. Okoth Ogendo: Should we have candidates for higher office to disclose their
medical history?
Com. Githu Muigai: Supposing we find that a man has cancer or has had cancer he is
on chemotherapy or we find he has had AIDS or we find he is diabetic or he has had
heart attack, to what use shall we put the information. It is to bar him from office
because the information is closer but must have a value. We are saying if you disclose
whether you have had a conviction because we have put a value on conviction. You
disclose your wealth because we would like to see how that has been generated and
therefore the moral police call the national ethics commission we make. What shall we
do with the medical information?
Com. Okoth Ogendo: Chairman, if Githu says I want to be President I want to know
who Githu is, I wan to know his health, I want to know wealth, I want to know
everything about Githu, this is a public office, I am entitled to know.
Com. Raiji: You might be right.
Page 99 of 138
Com. Okoth Ogendo: Yes, precisely, I want to know whether Githu is a night runner
for example.
Prof. Yash Pal Ghai: Raiji, Zein, Asiyo, Hassan then Charles.
Com. Raiji: Thank you Chairman I do accept the broad principle that a candidate should
disclose certain material information if it is done for office but I really would want to
invite ourselves, to warn ourselves of the dangers of making disclosures that intrude in
the privacy of a potential candidate in matters that do not relate to the office. I would
have no option if one was asked whether he is suffering from terminal disease because
one of the problems we are going to get into, it that because decent people may not want
that eye level degree of intrusion, we shall have thugs and crooks running for office
because they have probably no decency to protect. I think we should warn ourselves of
the kind of things that happen in the States where the family, everything about the
possible candidates is laid on the table, beamed all over the world and most decent people
would find that if they intended to serve as opposed to exploit the office, they may find
that it is not necessary to subject themselves to such demeaning treatment. Thank you.
Prof. Yash Pal Ghai: Could I ask if anybody is going to speak in support of Okoth’s
suggestion, if not then I sense that there is no support for it. So only speak if you support
Okoth’s suggestion.
Com. Ratanya: I just wanted Mr. Chairman to say, supposing we varied it to a certificate
of good health of some sort.
Prof. Yash Pal Ghai: Okay. Yes Professor Crabbe.
Professor Crabbe: Mr. Chairman I just wanted to give information regarding what
Professor Okoth Ogendo has said, we had in Ghana a situation in which a person took
office and for the period that he was in office, he was always sick and he had to be taken
to England for treatment at the expense of the State, you may have to consider that.
Page 100 of 138
Com. Okoth Ogendo: I think…
Prof. Yash Pal Ghai: No you do not have to speak I am sorry. Zein, Mrs. Asiyo and
then Hassan.
Com. Zein Abubakar: Thank you Chairman, I think the reasons which have been
advanced by Commissioner Raiji need to be given reflection via a vi from what Professor
Ogendo say, particularly in the context where there is a history of discrimination for
certain illnesses which might not disqualify somebody to run for a higher office. Let me
think of any medical condition, epileptics for example. Would that be used to bar
somebody from seeking higher office? Another thing, if we insist in terms.
Prof. Yash Pal Ghai:
I said those who support Okoth’s proposition should speak
otherwise I should assume it is Okoth’s proposition.
Mrs. Asiyo, only if you are
supporting Professor Okoth otherwise we will assume you are rejecting it.
Com. Phoebe Asiyo: Mr. Chairman I do not only want to support Okoth but I am going
to say what we were told like in Kilifi for example, where the voters had had to vary
three of their Councillors who were elected when they were sick and they were not sure
about their Member of Parliament, I think Okoth is right by saying that anybody who is
looking for a political office should have some medical certificate. You would not be
intruding into their privacy because any public servant must accept that all his doing will
be public.
Prof. Yash Pal Ghai: Hassan do you want to speak? Charles I would like you to switch
off your mobile phone please. This is a rule of this house you should know this well.
Com. Maranga: You only recognize me when the phone is ringing.
Page 101 of 138
Prof. Yash Pal Ghai: That is not true, in future I should not recognize you and your
mobile phone ringing but I have pleaded with you many times, we have clear rules and
you must switch it off.
Com. Maranga: But you should also give us a chance to speak.
Prof. Yash Pal Ghai: Come on Hassan?
Com. Hassan: Thank you Mr. Chairman, I support that position. The requirement to get
a medical certificate is not something new, we are simply trying to take it further up in
the higher ranking otherwise in Kenya public life whether you are going to the university
or going to the United States for a visit, you have undergo a medical examination and get
a certificate.
Prof. Yash Pal Ghai: Nancy.
Com. Nancy Baraza: Mr. Chairman I will support that proposition by Professor Ogendo
and I will differ with my leaned senior here that we do not want people life intruded into
and he said that we might scare off decent people. I think in America decent people put
themselves forward and they are ready to put their own package before the public, I think
I support it.
Prof. Yash Pal Ghai: I wonder whether a compromise might be requiring a certificate
of medical sicknesses rather than disclosing the whole thing.
Would that be
compromised or Okoth you are happy with that?
Com. Okoth Ogendo: Chairman, the point I raise basically is that anybody who wants
to serve the public should be able to give full disclosure to the public of what their fitness
to serve the public needs. I they think it is intrusive, let them not offer themselves for
public service. Mr. Chairman, I will accept a certificate of medical fitness with the
dangers in herein that people are going to cook them up.
Page 102 of 138
Com. Kangu: The doctors will be subject end result.
Prof. Yash Pal Ghai: Charles and then Pastor.
Com. Charles Maranga: Mr. Chairman I oppose that proposal and Mr. Chairman I will
ensure that that one does not pass. That is intrusion to private feelings of a person there
is no way for example, why is it classified private and confidential. It is like you are
giving your evidence to everybody else before you even present it to court. So Mr.
Chairman, that idea of subjecting people to a medical examination, let it be a voluntary
exercise be should not be a requirement before somebody is elected to positions of
leadership. Mr. Chairman people who are suffering from HIV AIDS now should not be
working even in public service. It is the same way that is a job so why should you treat
people in two different levels? So Mr. Chairman it will not be acceptable and I am telling
you here it will be rejected and I am also opposing it.
Prof. Yash Pal Ghai: Pastor. Now I want to wind this up.
Com. Pastor Ayonga: Mr. Chairman you know I am very brief and to the point. I do
not know why we should be afraid of medical examination, may be some of us is because
that has been routine as a worker for the Seventh Day Adventist Church, each year I must
have medical examination report and we have taken that as a regular thing to do and the
older you become you go twice a year to have the medical report and this is for your own
good and therefore I want to support Professor Ogendo for what he has suggested.
Prof. Yash Pal Ghai: I think there are two or three issue here, of course when you have
a medical test, the information is confidential to you and your doctor, it is not made
public so we should be supporting that Professor Okoth Ogendo. I think the important
principle to be balanced here, I think we do want to make sure that people we elect to
office have the medical fitness to discharge that function. So the health of a person who
put himself or herself in the public domain is the matter of public interest. But we also
Page 103 of 138
have to balance that with the previous question, you do to some extend give up your
claims or privacy if you get into that but it could also happen that some very good people
may be unwilling to offer themselves if this would embarrass them and so on. So it
seems to me the balance might as well be a certificate of medical fitness and we may not
want to do this for all officers because it seems to me that if we did that then it could
become unworkable. But we should specify certificate of fitness for certain important
offices, the question is, should this apply to all candidates for Parliament and the
presidency but we should not take it lower down in the other bodies. This is what I offer
as a compromise position because it does accept the principle that the health of a person
who put himself or herself for election is a matter of public concern but also as an
element of protection of privacy.
Com. Okoth Ogendo: Mr. Chairman let me clarify, I am not saying that the disclosure
should disqualify a candidate. I am simply saying that the public is entitled to know who
is offering themselves for elections and who they want to vote for. If you are want the
public to know that a person has ever been sent to jail, if you want them to know whether
the person is of good moral character, clearly they should know whether that person is fit
to hold office or not. Because we are saying on the same breath that we do not want to
disclose the medical state of the candidate but we are saying that when they are in office
it becomes a disqualification if that person is unable to perform the function of his officer
for whatever reason including health reasons. So why not ask for that information let the
public say this person who is going to die in two month nonetheless we are going to make
him President or our President, but let that information be in the public domain. It is a
public office, it cannot be invasion of privacy, if I am asked to choose whether I want
office and declare or it I do not want to declare then the public is saying, we do not have
enough information about that.
Com. Githu Muigai: Mr. Chairman is that not the fallacy of the argument. We have a
person we have elected as President, the Constitution say in no one uncertain terms that
one of the reasons we can remove …but we are not writing on a clean slate, we are
amending the Constitution of the republic of Kenya. Other than that Mr. Chairman, the
Page 104 of 138
fallacy of Professor Okoth Ogendo’s argument is this.
We are reserving in the
Constitution the right to remove a person who is in office for inability to perform the
functions of his office for many reasons including the physical, mental and what one
would call health problems related to that. If that be so, what then is the value that we
achieve in advance of subjecting like Museveni deed to his opponent, going round the
country and saying this many suffer from AIDS. My understanding is this, we do not
wish to stigmatize any candidate in respect of any disease and Zein says we have
epileptics in this country, there is a history about that, we have AIDS now, there is a
history about that and we have several other diseases. I do not the constitutional value
we would be protecting to require in advance that we should be told what candidate X or
Y suffers from. Will we also need to know whether he suffered from a disease for which
he was cured?
Shall we require if he is receiving his treatment from Daktari wa miti
shamba? Shall we require a certificate from that?
In my mind Mr. Chairman and this is my last comment. We have been talking about
creating fundamental values in the Constitution that cut right across the Constitution, I
would appear to me than, that would be subjecting this particular person to a higher
threshold than that which is necessary for the purposes for which we must regulate this.
My suggestion like Maranga would be, let us leave it out but if we say we are to, this is if
you do not allow me to be your neighbour there so to make a comment probably I would
not have said anything else. When are we to stop it again, is it the office of President,
Vice President, Prime Minister, MPs, Councillor, any constitutional officer or is it every
person who wants to serve in a national Commission or a person who wants to be a
headmaster of a school? Where do we want to draw the line, so that we say, this office
health is important but this one it is not?
Prof. Yash Pal Ghai: At the moment we are discussing MPs and the President.
Com. Githu Muigai: Chairman you are allowing Professor Okoth Ogendo to heckle
which is wrong. We want clear principles that will also go to the legislation, is that not
what we think?
Page 105 of 138
Prof. Yash Pal Ghai: I am going to Zein then I want to terminate the discussion.
Speaker: Mr. Chairman we are very quite.
Prof. Yash Pal Ghai: Did you want to speak?
Speaker: I wanted but …
Prof. Yash Pal Ghai: Zein please?
Com. Zein Abubakar: Thank you Mr. Chairman, I now have an idea when Professor
Ogendo hold the idea passionately, one leg is willing to go to have his way including
intimidation with a lot of respect. You are scaring some of us, but that was on a light
touch but on a serious note Professor, that is why I said we might need to give this
serious thought other than just resolving it here. If for instance we say, the purpose for
which we are going to carry out this medical examination is to determine the sickness of
that person to hold office. In relation to HIV, are we going to put a test every 6 months
because that is what is recommended in being able to know a persons HIV status, after
every six months you do not know what has occurred during that period unless you are
going to allow an affidavit, somebody saying I have been safer and sound.
More
importantly Professor, if we have provisions for removing somebody on account of being
unfit to hold office and which is on medical grounds, we will have terrible stigma for
example, for people who had psychiatry history. They may not suffer any mental illness
now but when Professor Ogendo say that in the past we would like to even have the
record possibly I assume from the time somebody got a medical record be it the time they
had a family doctor. So if they had for example, something like depression, that is a
mental illness and there is severe stigma in our community for mental illness, so if you
allow something like depression to be then be used to colour the judgment of the people
for election I think that would be unfair.
Page 106 of 138
Prof. Yash Pal Ghai: Okay I take it the consensus is that we should not have any such
requirement and we therefore precede on that basis. Other provisions on page 7 are
acceptable, I notice some of it is repetition of earlier points we have already agreed that
breach of leadership code will entail disqualification for 10 years. We will take as the
consensus.
Com. Zein Abubakar: B say the assets of both the spouse who gets any help from these
persons in order to meet their obligations in terms of food and clothing. Even extended
family.
Prof. Yash Pal Ghai: Kangu get we get you view on this or is Githu speaking on your
behalf?
Com. Kangu: No Sir. Mr. Chairman I think what we are supposed to capture although
it is not clearly stated here is that there has been a tendency for people to register
properties in the names of their spouses or other relatives say, children or brothers when
they want to avoid it being know that those properties belong to them. The mischief we
are trying to miss is that people who have acquired property probably from stealing from
public resources should not be given an opportunity to get into public offices. So we can
find a way and with the assistance of Zein of clearly identifying who are these people
with annexes with someone. While on that we might need to also find out situations in
which people register properties in names of companies in which spouses or children are
shareholders or I used to have one share in a company in which my wife has 99 shares
and things of that kind. Of course while still with the floor, I would also wand to draw
the attention of the members to the question of whether or not we just want the assets
disclosed or we want to go beyond and ask the sources therefore. Whether the sources
should also be disclosed?
Prof. Yash Pal Ghai: Githu, then Lenaola. Be very brief.
Page 107 of 138
Com. Githu Muigai: I will be very brief Mr. Chairman. I want to go back to the issue
of the fundamental values of the Constitution. If we want a libertarian Constitution that
protects the basic rights of individuals, we must worry as to how much we wish to expose
other persons. First I agree entirely and without revocation that a person ought to declare
their personal wealth and in fact I would go further and say and the sources of those
wealth, one should be able to say, I worked here I did this, I traded in this and the other.
However, I am a bit reluctant to allow a blanket search that intrudes into the territory of
another Kenyan who is equally protected by the law. I do not know how we can get a
happy medium because if for example and purely for example Mr. Chairman, my
neighbour to the right was my wife and she decided to run for public office, she would be
exercising a very fundamental right that is hers. I do not think that by my wife running
for office I thereby loose my right of privacy and I am saying privacy again here because
we have just discussed it. My right of privacy, including my business, I do not think I
would be required to take my law practice tax returns for the last 16 or whatever years
because my wife has decided to run for public office. We must in my judgment and I
would suggest that we must try and find a point at which we can draw the line. I
understand that is said, but doesn’t that encourage this political class to go looting public
coffer and hiding their money with their wives and we were advised other people earlier
on this morning. I admit that that is a possibility but our challenge here, our duty is to be
able to protect the public interest and protect the privacy of individuals. If you ask me
the correct way of doing it, I do not know but I do know that is the correct principle.
Com. Lenaola: Thank you Mr. Chairman Dr. Muigai has said basically what I wanted to
say and I only wish to add that to take the issue of wealth declaration beyond the person
vying for office and to take it to his wife and children, I think is extreme. Leave it to the
individual and to the sources of his wealth and then that is the only qualification I would
think he deserves.
Prof. Yash Pal Ghai: Raiji.
Page 108 of 138
Com. Raiji: Thank you Chairman, just to add a little more than to what my two
colleagues have said. We have already formed an ethics commission and I imagine one
with powers to invest it where there is an allegation of that. If in the process say of
investigation, they discover that part of the property was written in the name of spouses
or other people then that commission probably will be able to do it so that the mischief
that is intended to be covered by this rule is actually dealt with particularly this time
when women themselves I am aware are putting up their own struggle of independence or
ownership of property independent of the husband. I really think that we ought to respect
that, if it becomes necessary we can investigate them together with anybody else who
may have profited from stolen property.
Prof. Yash Pal Ghai: Charles.
Com. Charles Maranga: Mr. Chairman I want to agree with what those people are
saying that the person to be investigated is the candidate who is supposed to stand. That
is the person who is supposed to declare his wealth, people might be saying they are
wives and husband but actually they are separated and it is only that may be they have
not made it public. Therefore the wife might have acquired here own property in her own
right and you do not need to interfere with that and you will even fight court injunctions
about somebody saying, as far as I am concerned I left my husband long time ago, one
ago and so on. So Mr. Chairman even your own children may be sons, daughters who are
grown ups, they might have acquired their own property in their own way, so Mr.
Chairman I think it would be very difficult to be able to discern what is right or what is
wrong. So I think let us leave to the individual concern or the candidate he is the person
who should be investigated.
The other point I want also to comment on (a) is this question of..
Prof. Yash Pal Ghai: Can we deal with that latter?
Com. Marengo: Okay then, my position is that it is only the candidate concerned.
Page 109 of 138
Prof. Yash Pal Ghai: Salome, Mosonik, Zein and then Nancy. Oh dear, we will be here
the whole night. Can you just hold on for the point of procedure?
Co. Bishop Njoroge: Mr. Chairman I a bit worried about our pace, we still have a lot in
this document and I think we are taking too long time on one little particular section and I
think you have to direct us so that we cane finish the document because there are many
others that we have to pass.
Prof. Yash Pal Ghai: Thank you for that information, I also feel that we are behaving
like we used to behave in a boardroom. We really must keep it more disciplined and I
may have to involve the rule that you can only speak twice. I would hate to do that but
that may become necessary so please let us make our points very succinctly and let us not
repeat and let us try to make some decision. Salome.
Com. Salome Muigai: Thank you Mr. Chairman. Many of the people who told us that
we should the declaration of wealth talked about the candidate himself or herself but
there were one or two places where I visited where people talked about all the manner of
hiding wealth with the other relatives. So it is a felt need in as far as what people told us
is concerned. I however do hear what Dr. Githu said and the protection of different
persons especially when they are not running for the public office, elective posts
themselves and I think we do need a happy balance if it can be done. We are also coming
from our own history which also informs that we have used some measure of lack of
clarity and visibility in some of these things.
Prof. Yash Pal Ghai: Dr. Mosonik.
Com. Raiji: Chairman I think there is something we need to also get clear may be Githu
will also correct if I am wrong but most of those people who have eaten public funds or
grabbed properties do not necessarily give those properties in the names of their views or
children. What happens is that companies are formed, limited liability companies are
Page 110 of 138
formed in which these properties are transferred or this monies are transferred and where
for example there are those limited liabilities companies, the husband then makes the
wife becomes a shareholder or a director of that company then she is also incorporated in
that regard. Therefore, where for example she gets involved in that kind of transaction I
do not think you can expect the arguments you are now making to apply.
Prof. Yash Pal Ghai: Dr. Mosonik.
Com. Mosonik: I just wanted to say Mr. Chairman that it seems to me that declaration
of wealth means exactly that you declare. Which means if you have any wealth you
declare and there should be a penalty attached to non-declaration. So once it is clear in
the law that wherever we find that you hid some of you wealth in your wives name or
whatever, you will be in jail for 50 years and you will not stand for 10 yeas then it should
take care of it. Thank you Mr. Chairman.
Prof. Yash Pal Ghai: Zein please be brief and this is the last intervention.
Com. Zein Abubakar: Chairman one way of resolving this problem would be to say
their assets under most recent transfer, if a candidate has transferred any substantial
amount of assets within a given period, they have to declare that too.
Prof. Yash Pal Ghai: I do not see a very clear consensus other than that it should just be
the person. I should mention to you and I have done comparative study of leadership
code and I have drafted 5 leadership codes in different constitutions myself. It is quite
standard to have this formulation that we have here, the spouse independence because in
fact it offer no sharp distinction between the ownership of that group and we do know
that property is often vested in the spouses and children. This is a very well know way of
evasion and I would not extend it beyond this but it is very standard formulation and it
would be very strange it you were to say spouse, I mean just say the person and not
include spouse and dependants. But may be I am in a minority view on this, let me know
your position? Margaret do you want to intervene? Yes please.
Page 111 of 138
Margaret Nzioka: Thank you. The standard of formulation that the Chairman is talking
about is what we adopted in our public officers ethics bill which has now been passed by
Parliament perhaps the committee might want to look at that. Thank you.
Prof. Yash Pal Ghai: I should also say we are not making libertarian Constitution. We
are making a Constitution which respects the right, social justice and integrity.
Com. Kangu: Republican.
Prof. Yash Pal Ghai: Republican exactly, so where does that leave us? Should we look
at the formulation that Margaret has mentioned and see if that is appropriate because we
should not be seen to be lowering standards when Parliament has already established high
standards. Thank you Margaret. Remembering the Bishop’s plea can we move a bit
more rapidly now?
Com. Okoth Ogendo: That is why …
Prof. Yash Pal Ghai: Thank you very much I appreciate that. The next one is tenure of
office and here the main issue is I guess is the recall of the MP. You remember that most
people wanted the constituent to have the power of recall, when I looked at the printout I
was quite struck by how many people said this.
Com. Raiji: Have we finished the tenure of the office?
Com. Githu Muigai: I though Mr. Chairman we are on the recall of the MP. Tenure of
office is 5 years.
Prof. Yash Pal Ghai: Sorry, go on. When I came to that I thought Kangu said recall so
I thought that was the only point after that but you quite right, yes please go on.
Page 112 of 138
Com. Githu Muigai:
Mr. Chairman reference here to defection is there not? To
determine when a member has defected. I do not think that is an issue we can grouse over
with tremendous respect to my good friend John Kangu and his team because if we are
restructuring the way you enter Parliament, we may also need to think through how you
remain in Parliament and therefore defection and my mind in not firm on the issue but I
would have thought generally that the way as we were reminded earlier. The way
defection law came into the Constitution, it was intended to punish, harass individuals
who abandon their parties on grounds of conscience or so they declare to the public and
therefore we want to ask ourselves. Is it really something we want to consider now that
we have independent candidates? What we call a defector today is more or less in the
same shoes as a yesterday’s defector and I would leave it open but I would say we should
discuss it.
Prof. Yash Pal Ghai: I said we would not have a longer section on that but I was
mistaken. Mutakha may want to speak on that, I am happy to speak on that too, I have
views on this question. John first.
Com. Kangu: Mr. Chairman this is an issue that is arising out of the current Constitution
we have and the current behaviour in the political field that we have. The problem at
hand is that there are many people now in Parliament who declare loyalty to parties other
than the ones that sponsored them to Parliament but simply because they have not yet
tendered a resignation letter from one party to the other, they continue in the house when
the rule says that they should go back to the electorates. Now, that rule we may go to the
history of it, it may have been bad when it was introduced but if you ask many Kenyans
today and they told us when we asked them. They seem to feel that although it is
introduction, it was used in a punitive way. Today many Kenyans feel that it would serve
some purpose. Now, I have myself to argue it that if you look at the current Constitution
in conferring jurisdiction on an election court, I says that you can go to an election court
in a petition to have the court determine whether an election of a President or an election
of a Member of Parliament was valid.
Page 113 of 138
This Constitution also says, you could go to the elections court to have the court
determine whether a seat of a Member of Parliament has fallen vacant and my position is
that most of those people in the house now who have declared their positions as
belonging to different political parties are people against whom petitions can be filed to
have their seats declared vacant because they have defected. So that point we are making
here although it has not come out clearly is that, if we are going to retain the rule that
says that if you move from your party to another party you must go back to the
electorates for a fresh mandate. Then we must clearly state whether resigning from one
party to another can only be proved by tendering a resignation letter or it is possible to
discern a resignation by way of conduct.
Prof. Yash Pal Ghai: Could I just add to that, this point is discussed I now remember a
longer document that Mutakha tabled yesterday.
The argument in favour of anti-
defection rule is that a person is elected on the platform of the party and he or she is
voted in on the basis of that party and if the person leaves that party then the electorates
should have a chance to decide whether the person continues or has the approval to
continue on a different capacity. I think that is a perfectly good rule in a system which is
trying to develop a good system of party politics. At the moment the Constitutional also
says and I do not agree with this rule, that if a party dissolves itself and joins another
party, then if you resign from that second party you still have to loose your seat. That I
do not think is justified because the electorates had nothing to do with it and so it seems
to me that the justification for this rule which was given in many countries especially in
parliamentary systems is to have some stability in government or parliament to ensure
that the basis on which electors voted for you continues and those assumptions are no
longer valid, the electorates should have a chance. I think that rule clearly from my point
of view is perfectly justified.
The problem that we have which John has mentioned is that we have not clear rules as to
when one person can be deemed to have left the party. We have many examples today of
senior politicians who are formally members of a party as for as Speaker is concerned but
really spend a lot of their time attacking their party. The Speaker has so many times
Page 114 of 138
pleaded for clarification of the rules and the way that John has, reference is now before
the high court as your know arising from the resignation of Musikari Kombo. This
matter will not have been resolved by the courts but I think there is need to have a clarity
on this issue assuming that the anti-defection rule to win.
Com. Zein Abubakar: Chair I share the argument which John makes and you are
making but I would like to mention that visa a vi the internal democratic principles which
will be enshrined in the management of political parties because there is the other fear
that then we will make a situation where the Parliament becomes the instrument of senior
party officials and that the theory of a free vote in Parliament will be completely
eliminated. So there will be not any time when a whip of a party can say this is free vote,
vote according to your conscience. Every vote in Parliament will then become a party
vote.
Prof. Yash Pal Ghai: We are not talking of voting in Parliament, we are talking of
resigning from a party.
Com. Zein Abubakar: I am saying in relation to what you have already said that there
are no clear rules that in Kenya for instance if we would take an example. The action of
an MP to vote against the wish of the party bosses is taken as betrayal and is also taken as
a way of denouncing their own party. So we must be able to draw distinction, I am
saying I will be much comfortable with the rule if I know to what extend are the political
parties democratic in their nature. Thank you Chairman.
Com. Pastor Ayonga: Mr. Chairman as regards to the defection in some places people
told us that when a person defects from the party in which he was chosen to go to
Parliament, he should bare the expenses of the by-election. This would deter many
because the expenses would be heavy, it would deter people from changing places in
Parliament until the end of the exercise. That is 5 years.
Prof. Yash Pal Ghai: Please do not drag it from the session Bishop has the floor.
Page 115 of 138
Com. Bishop Njoroge: Mr. Chairman I wanted to look at the example of certain
countries, what do we do in terms of Members of Parliament who defect?
Prof. Yash Pal Ghai: There are many examples.
Com. Bishop Njoroge: I think I would have liked to hear a little bit of that because this
is not an area that we had really worked on and we do need may be to borrow and hear
what other countries do.
Prof. Yash Pal Ghai: Before I give the floor to you let us have Hassan and Charles.
Com. Hassan: Mr. Chairman I think the people concern was the quality of leadership,
integrity, morality and fallacy. I have to set out very clear procedures now on defections
because in any event I think the leaders who have defected initially from their parties but
they are in other parties going out campaigning, I think it is dishonest and I think it is
betrayal to the people and if we make it very difficult for people to either defect this way
so that they either make up their mind and resign from the party and join another party
and go back to the electorates or they stick in the party and defend their posts even if they
have threats from the leaders of their parties. I think if we are not strict on that we are
going to even enhance internal democracy of political parties so that people either stay
and make should they operate in the party or defect properly and resign and go back to
the electorates.
Com. Githu Muigai: A point of clarification.
May I ask Hassan whether he is saying that an individual Member of Parliament who
leaves his party is a defector but if the entire party leaves to join another party, he is not a
defector and there is an underlined logical and ego reason for the distinction.
Page 116 of 138
Com. Hassan: I was not addressing the merger of KANU and NDP if that is what you
are talking about, I was addressing examples like Simon Nyachae who is in KANU but
who is now effectively leader of Ford People, he is a Chairman of a party, I was
addressing people like James Orengo. I mean you either resign properly from the party
and go back to the electorates and seek mandate or you stick in the party as the Rainbow
Alliance Members are doing now and denounce the internal democracy. That is my
point.
Com. Githu Muigai: You have not received my clarification may I seek it from you. As
the normally defection stands today, there is a distinction between a lone Member of
Parliament who defects and a complete party that is merged with another or swallowed
with another or whatever it is that happens. In my judgment and this is the clarification I
seek, if we are writing a new Constitution, the underlined legal principle must be
defensible in both cases. If the lone man in a charlatan or if he has cheated his people, it
must be true also of 20 of them although they are doing it under the rubric of a party. So
I would like a clarification?
Prof. Yash Pal Ghai: Charles.
Com. Maranga: I think to bring good anti-defection laws then I do not see how you can
have those anti-defection laws without tying up the law of recall of the MP. I think that
might held up out so that the people who elected that Member of Parliament for example,
if the political party has become ineffective and somebody feels frustrated then naturally
somebody would not be towing the line of that political party. So Mr. Chairman, I think
the best way to develop anti-defection law is to may to tie up with what is suggested by
the recall of the MP may be when a person defects without any good reason becomes one
of the reasons of removal.
Otherwise Mr. Chairman it would be very difficult to
determine when actually like when you say, whether by writing or actions. It will be very
difficult, if you associate with people of an opposite party does it mean by sitting with so
many other Members of Parliament from another political party you are defecting? So it
might be very difficult to tell when one is defecting. I am not trying to refer to the
Page 117 of 138
current situation we are in but I am suggesting that may be we might have a situation
where political parties are working very well but you will find member is more allied to
another political party. May be they have changed their policies and somebody is feeling
lonely.
Another point, which you must remember, we have already approved the position of
independent candidate. A member might feel his or her party is not doing well let him be
an independent candidate, I think we should have it both ways, we should also have a
reason for somebody to defect because I think it is both ways. If you want to prevent
somebody from defecting, it is not also not right that somebody should defect at the
moment when he sure there is something going on wrong with his party or her party?
Prof. Yash Pal Ghai: Salome then Okoth then I want to wind up this debate.
Com. Nancy Baraza: Thank you Mr. Chairman I think as we look for ways and means
of tiding up of this anti-defections laws, I want to draw our attention to the avalanche of
defections that occurred in this country soon after the 1992 elections, after the
introduction of multi party. Those who were induced to defections, the defectors had no
reason absolutely other than they were induced with money, it was so ugly it was
obnoxious. Mr. Chairman we are talking of a country which cannot meet the basics of its
people, people cannot go to school, they have not food yet somebody goes to Parliament
today and tomorrow he has defected because he was given a million shillings then each
by-election was causing 45 Million shillings and that is what we depend on some useless
MPs who never make speeches after they came back. So I would want that taken into
account Mr. Chairman.
Prof. Yash Pal Ghai: So what is your recommendation then? Is it for or against antidefection rules?
Page 118 of 138
Com. Nancy Baraza: I am for and they should take care of reckless defection, induced
defection, defections which are going to cause the taxpayers and deprive Kenyans of
provision of basis needs.
Prof. Yash Pal Ghai: Salome.
Com. Salome Muigai: But Chairman today I seem to be remembering all that the
Kenyans told us. The perception of the Kenyans on defection was hostile, they though it
was something bad, they thought it was something costly. Some Kenyans said that once
somebody defects or given a party, they were very angry even with the defection of a
party, then they should even not be allowed to take part in the next by-elections. The
Kenyans were that angry with them and they said if they did then they should pay for it.
So I want to also agree what Nancy is saying that Kenyans have thought defections are
bad for them and they cause them a lot and they are not for them. Personally I would like
to see some very firm laws against defection because that is what Kenyans said.
Prof. Yash Pal Ghai: Okoth
Com. Okoth Ogendo: Mr. Chairman John Kangu led us very eloquently through the
issue of the power of the people and how leadership should tell from the people. I think
the people are saying they want more control over those that they elect, their conduct in
Parliament and they want some accountability. If you take that principle to one of its
furthest conclusion is that any defection should involve consultation with the people.
Secondly that the people themselves should also be able to through out their MPs and
therefore first of all I agree with those who said, that the anti-defection rule should be
discussed together with the issue or recall with which I have problems but we will come
to that.
Thirdly Mr. Chairman, let us remember the history of these rules, anti-defection and also
the whole concept of a parliamentary party which has produced such interesting
Page 119 of 138
Ochuodho, George Nyanja who have now become parliamentary orphans and so on.
These were instruments which the system used to fight down political parties, the only
reason why they created the adoption parliamentary party was to be able to cover up.
The cuddle scenario when Odinga resigned in 1966, to be able to in the case of KADU
there was no parliamentary party, incase of Odinga there was KANU so we know the
instrument but I do agree with the fact that we should give the people some kind of
liberate and therefore, we would need an anti-defection rule whether or not we have
independent candidates.
If you defect from your political party and you now want to
declare yourself an independent candidate, go back and ask the electorates whether they
want you as an independent candidate and they should be able to relinquish their seats. I
would like to suggest to this committee that they look at the report that we did on the task
force on public order and private security because we dealt with this issue extensively.
What we did there was to write the anti-defection rule in the political parties bill but to
recommend that the principle should be maintained in the Constitution but the mechanics
of dealing with it should be in the political parties bill. Thank you.
Prof. Yash Pal Ghai: John is going to floor. Hassan says that perhaps majority have
clear support for anti-defection rule and this should apply to all kinds of defections
whether by individuals or by groups. We need to clarify the rules for determining but
those are matters perhaps less for the Constitution than for the Speaker’s guidance or for
legislation. So I believe you have agreed on this but John you have the last word.
Com. Kangu: Thank you Mr. Chairman and I should start by saying that I am happy
that Professor Okoth Ogendo has started taking the ideology position as the foundation. I
was going to say that we have laid an ideology under which we are saying, leadership is a
trust in favour of the people and leaders must not continue as we see them today handling
leadership offices as merely jobs for earning income. They must handle those offices as a
trust for the people, as a service to the people and when they think that they are deviating
from what the people decided, they should own up and go back to the people. If you
defect from the party on which the people elected you, the rules must discourage this
because the experience has Nancy has said has been, most of the defections have not been
Page 120 of 138
on the basis of differences in policy at all, they have been on the basis of the fact that
someone has been denied a leadership position in the party and he wants to be in a party
where he can be a leader. Where he can be the Chairman or Secretary or some other
position. So, we must have stringent rules that can help us develop that concept of
leadership being a trust in favour of the people and so I support that and I will be asking
you ask us to go and reformulate and put in stringent measures.
Prof. Yash Pal Ghai: Thank you. Can we move to the recall of the MPs? Yes Nancy.
Com. Nancy Baraza: Mr. Chairman thank you. The issue of peoples right to recall the
MP I think it was overwhelmingly supported by people around the country and the reason
they gave Mr. Chairman and we saw it for ourselves, elect their members to Parliament
and probably that is the last time they see them. We were in a constituency with
Professor Ogendo and the constituents there were so happy that we had taken to them
their MP whom they had not seen for the last 14 years. Several other constituencies
where like Ugenya, Alego and they only see those fellows when it is election time Mr.
Chairman and they are so desperate, they have nobody to give their problems to. So I
think this is what was supported and I will support it Mr. Chairman.
Prof. Yash Pal Ghai: Bishop.
Com. Bishop Njoroge: Mr. Chairman we brought a report here, I not just going to use it
straight but I have been thinking about this issue of recall and first, we will have a lot of
political difficulties in the sense that you might have so many constituencies at the same
time demanding recall as to whether the country can be able to handle that. On my own,
what I think they are saying is that we should find a way to make the Members of
Parliament accountable and I was thinking may be a process can be started from the
constituencies where a constituency can report that their MP is not serving them well.
But what we can come up with is a way which we need Parliament, we can be able to
penalize that behaviour either through refusing them salaries, that will make them go
back because I have difficulties in asking them to go for an election because we will have
Page 121 of 138
so many. May be we should find a way to make them go back to their constituencies
without necessarily having a recall.
Prof. Yash Pal Ghai: Githu, Raiji, Lenaola, Zein and Charles.
Com. Githu Muigai Mr. Chairman I happy to confirm that on this issue I am not with
the opposition, I agree that the right of recall is an important right and in fact I am happy
to confirm to my good friend and teacher Okoth Ogendo that finally this is the right place
for us to deal with health issues. Any Member of Parliament elected by his people unable
to serve them because he has become ill, this is the right place to serve notice or to give
him the incentive as a gentleman or lady to step down from that office so that it can be
filled. Having said that Sir and without intending to take time, I think the concern for the
draftsman should be insulating the process from abuse. We have a history here sir that
you may be aware of where people are blackmailed, whether by journalists or by others,
if you do not this we will do this and if you do not do this, this will happen. We would
not want this to become a meal on the neck of every parliamentarian that under the table I
have procured a thousand signatures, give me Kshs. 10,000/= or I will fax this.
Mr. Chairman, since we all agree on the principal, I move that we try and look at how do
we insulate the process from abuse? Thank you.
Com. Raiji: Thank you Chair, I entirely agree with the sentiments of Githu Muigai but I
would like to add that, whereas the majority of Kenyans wanted this provision, I think we
must in implementing it, wait and balance it very carefully against another fundamental
requirement of democracy that Parliament and particularly MPs must be independent in
order to discharge their duties and that is why we give them immunity for things that they
do.
In the present Kenya which we hope to improve by this Constitution, I can see two
possibilities of growth abuse, Mr. Chairman you will call that the Speaker himself,
judging from previous elections I do not know what we have recommended was basically
Page 122 of 138
appointed because he has the support of the majority party. There is a possibility that ..
(incomplete – not recorded.)
Com. Okoth Ogendo: Which allowed for a recall of Members of Parliament and I
believe the history was that it was very badly abused so we wanted to hear your statement
on that.
Prof. Crab: Mr. Chairman as Professor Okoth Ogendo said, yes that amendment was
made unfortunately before the amendment could effectively worked out, they change the
Constitution from the dominion status Constitution given to us by the British government
in 1957 and then we wrote a completely new Constitution as the Republican Constitution.
The effects of that was to create a one party state and therefore the effectiveness of
recalling Parliament became dead. Indeed there was a situation in which Mr. Kobodu
who was then a member actually said in Parliament that if they put a stone as a candidate
at an election, the stone will win because the CPP is the greatest party.
Prof. Yash Pal Ghai: Okay Lenaola can your please proceed.
Com. Lenaola: Mr. Chairman I think we agreed that having listened to Kenyans and if
my memory is very clear the first point was that the powers of the President must be
reduced. The second very clear issue was that MPs must be recalled if they misbehave.
The ground given here are clearly necessary to ensure that we have powers to recall the
MPs in the process. Mr. Chairman, if there is fear that the Speaker would not be the right
person for whom the petition must be addressed, I am saying that impeachment of the
President should be addressed to Supreme Court. I do not know whether this again is a
place where we can ask members of the electorate. My suggestion is not a quarter
because I am looking at Embakasi constituency and a quarter of them would be 50,000
voters to petition. I do not know who can bring such a number so perhaps a fifth of that
pool, I might suggest a fifth of the constituency which is 20% and then the petition
should be to then Supreme Court on a request by Electoral Commission to whom they
Page 123 of 138
initial petition was addressed. So if the Electoral Commission is the first body it should
take the issue to the Supreme Court to determine on the points of evidence and law.
Prof. Yash Pal Ghai: Zein.
Com. Zein Abubakar: Thank you Chairman, when we started the hearings I was one of
those who most revisited the idea or recall, I believe that elections are held periodically
so that we can root out those we feel have failed to serve but when people kept on raising
this point I kept on asking them questions in terms of, how do you the safeguard against
abuse? Some of the ideas which people gave included that you should have a waiting
period from the day a Member of Parliament is elected, there should be a specified period
under which no proceedings may be brought against that Member of Parliament. Some
of them were suggesting a year observation, one year of observing the behaviour of that
MP. Others were saying that you need to tighten the rules of Parliament so that for
instance, if a Member of Parliament claims mileage for going to his or her constituency,
there should be a verification process that actually they go to carry out the work of
consulting the people on the ground.
Thirdly, they were suggesting that it will help if we say Constitutionally that parts of the
parliamentary service will include the establishment of an office in each constituency but
apart from that we might want to go the way Commissioner Lenaola is saying and say
that, part of the loquacious application may be rooted out at the level of the Electoral
Commission. Again Chair in terms of how then it is applied, I guess it will vary
according to how somebody got on to Parliament. If you were on the list, you came to
Parliament through a list then the nomination would be very simply but if you came
through a constituency, it will be cumbersome and also more importantly it will be
expensive. But if you were on the list then who is to originate the complain because at
that time it is the party which put you on the list, I would guess then we will have to look
at the rules in clear terms so that there is no conflict so that if it is the list, I do not know
what constituency you will be covering. We need at least to clarify those things. Thank
you Chairman.
Page 124 of 138
Prof. Yash Pal Ghai: Charles.
Com. Charles Maranga: I think I want to suggest that, apart from the three points
which have put down (a, b, c) I wanted to suggest that any defector or any defection
becomes part of the misconduct if the person did not consult the constituents so that
anybody who defects without informing his constituency, that would be a good reason of
recall. Mr. Chairman I am also suggesting that, to guard against mischief I want to go the
Uganda way where they are saying two thirds of the electorates, so that it becomes very
difficult for recall if it is not really necessary, so if we maintain two thirds of the
electorates which of course seems very high but I think it is okay. That will protect
Members of Parliament.
The other points is that, I want to reinforce the point Zein said that people said that we
need a mid way of the term so that we can now do a review at that point. So that if you
are going to recommend 5 years then it should be 2 and half, if it is 4, then it is 2 yeas.
So that at that point people can present their complaints. One way in which people can
present their complaints at the level of the constituency is to give their complaints to the
Ombudsman because that office has already been created. I think that would be a
legitimate function of the Ombudsman. They will say the MP is not coming, we are
having problems, so they can put their petition through the Ombudsman who will present
it to the relevant office whether it is the office of the Speaker or the Supreme Court. I
think that would be an easier way of dealing with that problem.
Those are my
suggestions.
Prof. Yash Pal Ghai: Okoth.
Com. Okoth Ogendo: Mr. Chairman, the principal of recall I think was a very popular
idea, the problem was always how to affect it. The Constitutional Commission of
Zimbabwe also got overwhelming responses on recall but rejected it on grounds that the
mechanics are so complex, I would like them to be reduced. But I believe that members
Page 125 of 138
of the public did have lots of ideas on how this could be done. Zein has mentioned some
of them, the waiting period, others were saying there should be a general review of the
conduct of an MP after 2 years so you find out what is happening to avoid people
beginning to collect signatures the minute that a result is announced. Others were saying
that a Member of Parliament is not simply somebody elected to go to Nairobi to speak,
something which a honourable member for Kasipul Kabondo is not now a member. He
used to tell his constituents that do not come to my house, you elected me to go to
Nairobi to speak on your behalf if you want me you come there and they were suggesting
that what the Member of Parliament does in his constituency is as important as what he
does in Nairobi and therefore the rules that apply to the conduct of a Member of
Parliament in Nairobi should apply to him in the constituency. So if in Nairobi he misses
three consecutive sittings he looses his seat. There should be something that extends that
principle to what it does in his constituency and I would want to suggest to this
committee that they go back to the date around and identify how the public wanted this
matter dealt with and then develop fairly tight rules at two levels. One level that gives us
a principles that should deal with the question of recall the other one is the mechanics
which presumably would go in specific legislation and I think from a drafting point of
view what we may have to do, is to agree on the principal and then create an obligation
on Parliament to pass legislation to effect it, so that the debate can continue on the
question of mechanics but with a very clear idea that Parliament must deal with that in
legislation. We do not have to deal with the details ourselves but we would have to agree
at the level of principle.
Prof. Yash Pal Ghai: It seems to me that there is a general agreement on the principal
of recall and may be some of the grounds set out in this paper are acceptable. People
have warned against the about of the process and we need to think about that issue and if
you could may be make some proposal as to how we could prevent abuse, I think that
would be helpful. I think the intervention of the Electoral Commission can be useful
safeguard but again it is clear that we cannot provide a very detailed framework in the
Constitution but we can set out the grounds for recall, may be identify institutions that
might play a role in that and then leave it to Parliament. But if you have any ideas as to
Page 126 of 138
the procedure that might be followed please let us have them in the course of the next two
days or so but for the time being we approve the principal of recall and then wait for the
details or the procedure later.
Then tenure of the President and impeachment, John do you have anything to say?
Com. Kangu: No.
Com. Okoth Ogendo: Just very short points. Impeachment is a political offence as
opposed to criminal offence as we know it, we may have to rethink this whole business of
throwing it to the Supreme Court to deal with it.
In systems where they have
impeachment they are in a happy situations of having two house of Parliament. In the
USA, the House of Representatives frame the charges, the Senate presided over by the
Chief Justice then converts them to the court so it is political all through. If you push into
our court, you may run the danger of dragging the judiciary into the determination of
political misdemeanors and crimes.
The second point, there is a very slight problem we may be dealing with it which is the
term of the office of the President in relation to the term of office or Parliament. We
should never have been in this situation which we find ourselves in which the terms of
office of the President will expire in January but Parliament is in February. Then you
have this interregna situation in which you do not know whether you have Parliament or
not. The National Assembly continues, the President is somewhere in limbo and so on, if
we are to retain the present system then we have to deal with that but of course if we
don’t which probably we will not want to then the issue will not arise.
Prof. Yash Pal Ghai: Githu.
Com. Githu Muigai: Mr. Chairman again I am in a very happy situation of having to
agree with Professor Okoth Ogendo, I think he is moving back to the centre. I think that
Mr. Chairman we want to protect individuals who are elected to office or appointed to
Page 127 of 138
office under our Constitution and the President is a person whom in my judgment we
have reposed or shall be reposing in a short while, such authority to manage the State.
That we must insulate his office just we have tried to insulate the MP from partisan,
frivolous, vexatious and other efforts to interfere with his tenure. Having said that
therefore, I think we need a little bit more thought and I am sure John Kangu and his
team will do that one the mechanics. But I agree and this is my last point sir, the
Supreme Court should not be involved in the impeachment process because strictly
speaking, the President is being judged by his peers and probably the chamber where this
should be is in the National Assembly.
Prof. Yash Pal Ghai: Okoth.
Com. Okoth Ogendo: This is think be actually against.
Com. Githu Muigai: This is where I think Professor Okoth Ogendo, I think that a
Professor of Law for example or a senior advocate of the High Court would make a fairly
good prosecutor appointed by the resolution of the house.
Prof. Yash Pal Ghai: May be since we do not have two chambers the way to initiate the
process will be a vote of the majority of the members of the house but of course it will be
propagate it they themselves then conduct the trial so we have a slight problem here.
Zein do you have a solution?
Com. Zein Abubakar: I just wanted to suggest I entirely agree with the principle that
impeachment is a political process and should be left to politicians, people should be
judged by their peers but on the question of, do we have a single chamber or two chamber
house may be we should leave that until we have had the presentation on the paper by
those who are dealing with devolution and structure of government.
Page 128 of 138
Prof. Yash Pal Ghai: Yes, shall we do that, accept the principle of impeachment.
Accept that it is a matter of the judgment of peers, work out who brings charges and who
tries the charges. Okay, timing of elections? Charles.
Com. Maranga: Mr. Chairman, I agree with the proposals which are presented here
except I want to suggest that we need to very clear on which date of August for example
we can say first week and specify a day or we can for example say the first Tuesday or
first Thursday of August. Something like that, so that it is very clear and that this should
be a public holiday. I think that would be critical so that there is no doubt when the
election is going to be held and so that people know the date of the general election rather
than giving in the month of August. Anybody can decide to have it any time which
would not be fair to Kenyans. I think Kenyans said they want a very specific date, very
definite date when they are able to carry out the elections.
Prof. Yash Pal Ghai: Yes Zein.
Com. Zein Abubakar: Thank you Chairman. I support the idea that we should set aside
a day not a date, a day is like first Tuesday of the month of August or something like that
but also to specifically say that it will be a public holiday but more importantly Chairman
I do not know about the true proposal when they say Parliament shall stand dissolved
automatically 5 years from the date of the last general election and then go to say general
election shall be held 45 days before the dissolution of Parliament. That gives the
impression that somebody can run for the same seat, which they are already still holding
if I get that clearly. May be they were trying to solve the idea of many Kenyans have told
us there should not be a situation that there is not legislature in practice but I would also
suggest that this waits until we deal with the other matter, if there is going to be an upper
chamber, that can be solved by saying that when one is dissolved the other one is still in
session. Thank you Chairman.
Prof. Yash Pal Ghai: Raiji and then Salome.
Page 129 of 138
Com. Salome Muigai: Thank you Mr. Chairman I was thinking of one issue that came
up with Kenyans time and time again is the separation of election. They said they would
like to have the presidential election and the parliamentary and the local government
elections on different dates. Is there something on this paper John that addresses that?
Com. Kangu: Mr. Chairman we have not specifically mentioned to that but it would be
of interest for members to think about it, may be think about the logistics in terms of
costs involved and if we separate, we separate by how many days and which election do
you begin with because you want to avoid a situation where the results of one election
influence the conduct of the other. For instance, if you begin with the President, after I
have won that will cause a lot of re-alignment in the process of contesting the
parliamentary seats and which might go into even defeating the democratic process. The
nature of our Kenyan people Githu you know, once they know I have won I am sure even
if you opposed me you will change your party. I am throwing the issues on the floor we
have not addressed them seriously.
Prof. Yash Pal Ghai: But the people discussed this.
Com. Kangu: They did but in terms of making conclusions on that the members are free
to tell us what they think.
Com. Raiji: Thank you Chairman, I think this is an important point where we received a
number of submissions. It is really part of transitional arrangement because my group is
dealing with that and one of the things is that we are dealing with the fact that we do not
know when the elections are going to be held because if we knew now we can then start
timing 5 years and say it is the first week of August and so forth and also probably make
a definition perhaps as part of transition that for purposes of section, whichever prescribe
the 5 years. The 5 years for this current or for the next government shall start to run from
a certain date but it is a little difficult for timing now because we are not sure when the
first elections under the new Constitution is going to the held or even the current election
under the old Constitution so that we can start timing. But I agree and support the
Page 130 of 138
resolution that we have a specific day even for Parliament and Parliament shall come to
an end on the last Monday of September for example of the year. So that there is no
doubt and then also parties can plan and then even for purposes of the business and the
stock market, who can be able to organize and plan their affairs. Thank you.
Com. Okoth Ogendo: Chairman just one small point on the timing of elections section
7. Whatever else we do, I think we must ensure that all the three branches of government
are in operation at all times and there is no interaction. In this country the Constitution is
arranged in such a way that the legislature is the one branch that sometimes does not exist
but the executive is operating and the judiciary is also operating. In Zimbabwe because
of this, the confusion gave the President power to legislate for 90 days and if you have
followed all the land reform decrees that Zimbabwe has had has been legislated when
Parliament was in recess but it can be a very dangerous thing so we would want some
clarity on this question. I do not mind a Member of Parliament running for a seat that
they already hold but as long as Parliament is in existence before the next Parliament take
over.
Prof. Yash Pal Ghai: This proposal as you know is similar to the one in the United
States and now in Uganda so there in no gaps, that is the advantage of this. Hopefully you
could solve election disputes before the time has come to convene Parliament. Now on
the fixed time there is one which provides all that, I think we will face it when we look at
the recommendations for the system of government. It is possible in American type,
presidential elections to have a fixed date but in the parliamentary system it is not always
possible so there may be a vote of no confidence and the Parliament may then be
dissolved 4 to 5 years. I think the paper on the system of government could probably
deal with this, what I would personally propose is that if there is a vote of no confidence
house should not be automatically dissolved as happened in some parliamentary systems.
The President should make every attempt to form another government within the same
house and the desolation would only take after 21 days of the attempt but no government
can be formed. So subject to that I think we can have a fixed date in terms of 5 years
Page 131 of 138
from the time either of election or the first sitting if we have a choice here. Do I take it
that in principle this proposal is acceptable?
Com. Maranga: Yes.
Prof. Yash Pal Ghai: Okay, thank you. The same for the timing of the election for the
President? Zein.
Com. Zein Abubakar: We received a lot of submissions from people saying that the
President should have a running mate and some went to the extent of saying that if they
have a running mate, if the office of the President then became vacant for the purpose
that there was a resignation date or incapacity. The Vice President assumes office
without going into an election.
Prof. Yash Pal Ghai: I do not know whether it appears later somewhere here but on
government people made many recommendations that there should be a running mate so
the President one has no choice, he had a choice initially as to who he or she chooses a
running mate but once elected then that person remains Vice President and secondly that
persons succeeds to the office of the President.
Com. Zein Abubakar: So I am saying that is in contradiction with provision which is
given here, which demands an automatic election and meanwhile the Speaker is acting
President.
Prof. Yash Pal Ghai: Yes you are quite right if that is going to the case then the Vice
President will take over. Thank you for drawing our attention to that. Salome and then
Charles.
Com. Salome Muigai: Mr. Chairman we were also told that he could have it when the
President or the candidate for the President happens to be a woman then a man should be
the Prime Minister and vise vasa. This morning we talked at length of the way of
Page 132 of 138
creating visibility for women and nurturing a way that will help them also be seen as
possible candidates and I think if were able to put this one in place that would be very
helpful to the women and political party.
Prof. Yash Pal Ghai: Even the men have a case may be.
Com. Salome Muigai: Or to the men also.
Prof. Yash Pal Ghai:
Is that agreeable in principle that the President and Vice
President? This is a time to make a decision on this question. Charles are you going to
speak? This is a formal proposal let us dispose off that first.
Com. Maranga: The one on the Vice President?
Prof. Yash Pal Ghai: No, the proposal is that if the President is a man, the Vice
President should be a woman and vice vasa.
Com. Maranga: Mr. Chairman I have a problem with that proposal and the point being
that to depend on the political scene how people are going to line up and the other point is
if the political parties are going do decide, I think there is alignment in many ways. So
Mr. Chairman I think for these top positions let us not reserve them for any given gender,
let is be open for everybody because you can even have both as women who are running
as President and Vice President. Mr. Chairman I will not have a problem with that but I
will have a problem where we are trying to put that in the Constitution.
Prof. Yash Pal Ghai: Hassan do you want to speak on that.
Com. Hassan: Yes Chairman. I think Zein may also want to say the same think I want to
say. I also wanted to tell Salome that while that is true that we heard that people said
there should be either of the sexes being VP and the President, we also about the religious
Page 133 of 138
angle where we were told that where the President is a Christian the VP should be a
Muslim and vice vasa, so I do not know how far we shall be able to accept this principle.
Prof. Yash Pal Ghai: Zein.
Com. Zein Abubakar: I think Chairman that there has been views to that extent and as
Hassan says there are also people who made views in relation to faiths the people who
made views on account of ethnicity, they said if the President is this ethnic group the
Vice President must be from another ethnic group. There are people who talked about
rotational presidency on basis of gender or basis of faith or basis of ethnicity or region. If
we are opening it up for that kind of discussion we should but I think the position would
be you leave it the way it is that on the principle which we were acting on was that a
running mate assumes office if there is a running mate.
Prof. Yash Pal Ghai: Lenaola then we can have a break.
Com. Lenaola: Chairman let us leave it as it is, let us encourage parties outside the
Constitution to nominate women as running mate if it is a man but the proposal as it is I
think would be good.
Prof. Yash Pal Ghai: Raiji do you want so say something?
Com. Raiji: Mr. Chairman in principle I accept that we should have some visibility for
women but I am aware that one of the issues that we have to deal with and which is
eagerly anticipated is the kind of positions which we are going to set up when we discuss
the structure of government and it is possible within that to find if it is necessary to
reserve for women and if so which particular position because for now we are proceeding
on the basis that there will be two position President and the Vice President. That may be
so, I will probably say that let this one be kept in abeyance and when we have seen the
structure then we can decide where to slot the women.
Page 134 of 138
Prof. Yash Pal Ghai: Nancy do you want to speak? Okay, then Githu.
Com. Githu Muigai: Mr. Chairman in principle I have no problem with us reserving
either the presidency or the vice presidency for either men or women except I would
repeat the question we voiced in the morning. Is this a programme that we can sell at a
National Conference? If the answer is yes, I support it then we go forward with it and we
present it to the people. If the answer is no, I would caution again let us not jeopardize
the compromises that are important and meaningful to the women of Kenya and the
people of Kenya in order to make a political point.
Prof. Yash Pal Ghai: More than a political point but Kangu go ahead.
Com. Kangu: Mr. Chairman I do not want to talk about on whether the President should
be a man or woman but I want to go back to the point we said that the Vice President who
is a running mate takes over for the remainder of the period. I know that is not for this
but it may have been dealt with in another area by another paper but we need to provide,
in the even that, that Vice President takes over, how does he recruit his own Vice
President?
Prof. Yash Pal Ghai: What is appropriate?
Com. Lenaola: Just nominate.
Prof. Yash Pal Ghai:
Yes he nominates. Is that agreeable then the structure of
government could come here? Okay the President nominates. Then can we move on the
next question? It seems to me that one the proposal of Salome we leave it until we look
at the system of government and in one sense of course it does belong there so we will
come back to that probably tomorrow.
Page 135 of 138
Com. Pastor Ayonga: Mr. Chairman I was going to say this review of man President,
woman Vice President was not popular and we should just leave it like that, I think it
would bring so many things.
Prof. Yash Pal Ghai: Let us discuss it when we come to systems of government that is
what it rules. Lenaola you have something?
Com. Lenaola: Mr. Lenaola it is going to 6.33 p.m. I appreciate that time is of the
essence, I am looking at the papers we have and those we have to prepare for tomorrow,
we have 6 papers in front of us now which you have rendered to some of us and that
would form part of discussion tomorrow. My suggestion would be that we take time on
the next time, point number 10 and then we leave Electoral Commission for early
tomorrow morning because that is the only substantive issue I think is remaining in this
paper because the rest may not take us much time so that my 10.00 a.m. we can start on
the other papers otherwise we may have fall in a problem tomorrow morning when we
have not finished this and yet we have not even read the ones that we are carrying. So I
think we should just balance our timing for tomorrow.
Prof. Yash Pal Ghai: We have 10 minutes now because people are probably tired so
that we can come back to point 9 tomorrow. So let us talk little bit about tomorrows
programme, I think you have a number of papers now and we should perhaps continue
with the elections and then political parties, we have papers of that since all these belong
together and we disposed off that perhaps we can work a bit faster that we managed to do
today. So please to exercise some self-restraint I know all of you have very interesting
things to say but let us focus on the issue to be decided. Assuming we can finish that on
political parties and the remaining of this my morning coffee or tea time which means
that we start properly at 8.00 a.m. I know some people come from other hotels and they
have to hang around and it is not fair to them. So I shall be here at 8.00 a.m. and as soon
as a quorum is established we should begin our work. After the morning tea will there be
more papers from your committee or we will have disposed off?
Page 136 of 138
Com. Kangu: Mr. Chairman I think for tomorrow it is only political parties and may be
we can take a break so that we can deal with the others but by tomorrow, Thursday may
be on Friday we may have something, I cannot tell.
Prof. Yash Pal Ghai: No, No I see well.
Com. Kangu: We will try at least international relations if it can be circulated tomorrow
and I will be suggesting although I know my neighbour here will be unhappy that we may
continue this discussion throughout the weekend so that we can cover. You will give up
Saturday, I will give up Sunday then we balance.
Prof. Yash Pal Ghai: Yes, I think we will have to do that. Tomorrow then there are two
possibilities I do not know whether we will have the report of the committee on systems
of government.
Com. Maranga: We have not met to finalize.
Prof. Yash Pal Ghai: Okay, I was just trying to figure out because that would have been
best because so many things come back to the structure of government that if it can be
done then we have Dr. Nunow committee a paper on public finance and revenue
management and a paper on science and technology, environment and natural resources.
Com. Nunow: Which one do they want us to begin with?
Prof. Yash Pal Ghai: Well I propose if you could start with finance then go through all
these I think there are few decisions to be made there except in land in the area we
discussed today, so perhaps you could finish those tomorrow.
Com. Nunow: Public service and revenue management will be taken together with
intellectual property rights. Those two papers will be presented then time allowing the
others are also ready in terms of environment and natural resource, science and
Page 137 of 138
technology and then there is a paper on land and social infrastructure will be circulated
tomorrow.
Prof. Yash Pal Ghai: So, tomorrow we should aim to finish the papers that have been
distributed and it then the land paper can be issued earlier in the day and may be we could
deal with that too and that I think probably will be enough for tomorrow. On Friday we
will deal with system of government and any remaining business, we really must try to
finish all the reports by Friday so that we can use the weekend for finishing the drafting,
polishing reports and so on. So let us aim to finish all the outstanding reports by Friday
even if we have to work late tomorrow and late on Friday.
So let us start promptly at 8.00 am tomorrow morning, so of the committees have to meet
please you should finish all papers and try to ensure the distribution tomorrow morning or
as early in the day as possible. Thank you very much.
&&&&&&&&&&&&&&&&&&&&&&&&&&&
Page 138 of 138