Features of the Proposed Constitution

Positive features

• The Preamble talks of “pride in our ethnic, cultural and religious diversity” and of determination to “live in peace and unity as one indivisible sovereign nation,” the two ideas requiring that national identity and other personal and communal identities must be balanced

• Art. 1 (4) says that the sovereign power of the people is exercised at the national level and the county level, meaning that we must share state power, and not let it be monopolised at one level (and implicitly, by one tribe or a coalitional of tribes)

• Art. 6 (3) requires the state to ensure access to services throughout the country (unlike in the past when some areas were gravely neglected)

• Art. 7 makes English and Swahili official languages, but requires the state to promote and protect the diversity of language in Kenya

• Art. 8 declares that there is no state religion, and by implications that all religions must be treated equally

• Among the national values and principles of governance are patriotism, national unity, sharing of power, inclusion, social justice, equality, non-discrimination and protection of the marginalised, all of which aim at fairness and national integration (Art. 10)

• Art. 12 (1) assures all Kenya citizens equal “rights, privileges and benefits” (but Chapter 3 provides for various categories of citizenship with differing rights)

• Chapter 4 (“The Bill of Rights”) has a number of provisions to ensure equal rights to all and affirmative action for groups who have been disadvantaged in the past (set out in bullet points immediately below); the underlying theme is human dignity (see the section on “Human Rights”)

• Art. 21 requires the state to address the needs of, among others, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities

• Art. 27 guarantees equality and freedom from discrimination (direct or indirect discrimination is prohibited on any ground including race, ethnic origin, colour, religion, conscience, belief, culture or language); affirmative action must be taken to redress past disadvantages due to discrimination (see also Art. 56)

• Art. 33 (2) (c) and (d) makes it clear that freedom of speech does not cover “hate speech” or advocacy of ethnic hatred

• Art. 44 protects the rights of minorities to the use of their language and the exercise of their culture (and thus protects diversity); Art. 45 upholds marriages and personal law under a variety of religious or customary systems; and Art. 56 requires affirmative action for minorities and marginalised groups in respect of participation in state affairs, access to education, economy and employment, basic needs, and their culture

• Chapter 6 (on land) while not directly addressed to minority rights, will vest trust land directly in the communities whose life style is tied to forests or grazing or hunting-and-gathering (Art. 63(2) (d))

• Art. 91 specifies that political parties must have a “national character” (presumably meaning that they must have members from all over the country and in their governing bodies), must uphold national unity, cannot be based on bases of religion, language, race, sex or region, and must not advocate hatred on any of these grounds

• Art. 100 requires Parliament to make laws to promote the legislative representation of ethnic, minority and marginalised communities

• When members of Parliament are to be elected through party lists (this mainly affects gender in the Senate) those lists must reflect the diversity of Kenya (Art. 90)

• Art. 130 (2) requires that the national executive (that is, the President, Vice-President and the Cabinet) must reflect the ethnic and regional diversity of the people (although it is not clear how this would be enforced; perhaps by Parliament as it has to approve presidential nominations of cabinet secretaries (that is, ministers) (Art. 152 (2); see section on Parliament

• Art. 170 provides for Kadhi courts to apply Muslim law - only on matters of personal laws; and although it has upset some Christian clergy, it seems compatible with the value of respect for diversity

• Art. 232 on the civil service requires the representation of Kenya’s diverse communities in the service

• Article 131 says that the President has a special responsibility to promote respect for Kenya’s regional and ethnic diversity.

Worrying Features

• A majoritarian system of voting (such as is retained for Kenya with mostly single member constituencies) disadvantages minorities. There is a requirement that a law is passed to promote the representation of minorities and marginalised groups. This has to be done within five years (Article 100 and Schedule 5) - but a proportional system of representation (PR) which is better for ensuring the representation of minorities and women will not be possible

• The system of presidency which does not provide effective power sharing at the national level; and so may continue ethnic hegemony and exclusion of many; and continue ethnically based politics. Most seriously, even before people understand how the new system and its limits on presidential power will work, the focus on this one office may stimulate violence.

Summing up

The Proposed Constitution provides a good framework for protection of minorities, social justice, and national integration, but whether Kenya can move from ethnic politics and conflicts to the politics based on policies regarding land, economy, environment, education, health, and so on, depends significantly on the attitudes of politicians. It may not, by itself, produce our Mandela or even our Obama!

*The analysis is courtesy of a team of lawyers led by an experienced Constitutional Lawyer of International Repute.

Disclaimer: Views expressed in this section do not represent the opinions of CISA.