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.
Wednesday, July 14, 2010
Citizenship
*The analysis of the proposed Constitution continues- Editor
A country is its citizens. Citizens have certain rights and privileges in any country that non-citizens do not have. In most countries only a citizen can vote, and usually only a citizen can be an MP, or hold certain posts (for example many countries would not permit a non-citizen to be an army officer). A citizen always has a right to be in their own country; other people have to get special permissions such as visas and work permits.
Citizens also have obligations over and above those they share with other residents (such as paying taxes). In some countries citizens have an obligation to serve in the national service, and are liable to be called to join or fight with the armed forces..
Although the general principle is that all citizens are equal, many Kenyans have been excluded from full citizenship. Many citizens, among them women as well as minorities, complained to the CKRC about discrimination. Although the Proposed Constitution has retained existing categories of citizenship, carrying differential rights, it removes some forms of discrimination, as follows:
• Both men and women can pass citizenship to their children (Art. 14(1))
• Both men and women married to Kenyan citizens may become citizens (Art. 15)(1)
• A person born outside Kenya is a citizen, provided that at least one parent is a citizen (though this could be limited by law to prevent citizenship passing from generation to generation through people who have no active connection with the country) (Art. 14)
• A citizen who becomes, or has become in the past, a citizen of another country is entitled to be a citizen of Kenya as well – and it seems that the intention is that the reverse is to be true, namely that a person who becomes a Kenyan may retain a previous nationality, but this will require a new law (Arts. 14(5), 16 and 15(4))
• A child adopted by a Kenyan is entitled to take Kenyan citizenship Art. 15(3))
• A child who is in Kenya and who seems to be less than 8 years old, but whose parents are unknown, will be assumed to be Kenyan
• All citizens are entitled to identity cards and passports (Art. (1) 12(b))
How does this differ from the current Constitution?
Under the existing Constitution children born outside Kenya only become citizens if their fathers are citizens; now having a citizen mother will be enough. Until now a man married to a Kenyan woman had no right to become a Kenyan, but a woman married to a Kenyan man did (the foreign husband would have had to apply after living in the country for some years, in no different position from any person not married to a citizen). Now a wife will have to wait longer to become a citizen, but both men and women married to Kenyans will be in the same position as far as becoming citizens is concerned.
At present the constitution prohibits any person from holding Kenyan citizenship and that of another country (except for children, who can hold dual citizenship until they are 21 and then must decide).
It will now be harder for foreigners living in Kenya to become citizens in the sense they will have to wait longer (7 years’ continuous residence instead of 4 years in the preceding 7 years).
The existing Constitution says nothing about adopted children or children whose parents are unknown.
The provision about a right to ID cards and passports can be used to prevent officials punishing unpopular people by withholding a passport.
Why dual nationality?
People sometimes feel that one ought to be – or even can be - loyal to one country only. A clear majority of those who expressed a view to the CKRC felt that it should be possible to have dual citizenship, though others felt that a person ought to make a choice. In the modern world many people spend part of their lives in one country and part in another. That is good not just for them but for international understanding and international commerce. Dual nationality means that they can more easily travel between the countries in which they have an interest. The arguments in favour of dual citizenship include that such a person might actually be more inclined to retain a connection with Kenya if it is possible to retain citizenship.
Another issue in Kenya relates to pastoral peoples; some of these groups move across national boundaries with their herds. This may make it very difficult to obtain citizenship (because there is a tendency for officials to suggest that they ‘belong’ on the other side whereas the truth is that they belong on both sides of the border).
In reality many people even now do have two or more passports. Not to permit this to be done lawfully is an invitation to deception and corruption.
What do other countries do? The UK has always allowed dual nationality. Until recently the USA was firmly against it, but in recent years the law has been relaxed. Canada has recognised dual nationality since 1977. There is a definite trend towards recognizing dual nationality, though most African countries have not followed the trend.
Comments
Citizenship provisions in the Proposed Constitution are much better than under the current constitution. There are still some distinctions between citizens, for example, only a citizen by birth has a constitutional right to keep their citizenship while acquiring another nationality. And only citizens by birth may hold certain offices.
Ethnicity, minorities and national integration
Prevalence of ethnicity in public life is major political and social problem facing Kenya. Our politics have become largely the politics of ethnicity. Politicians find that an easy way to build support is by playing on ethnicity, by stirring up ethnic loyalties on one hand, and ethnic animosities on the other. Sometimes they incite people against other tribes, even to violence, as is well demonstrated by the Waki Commission. They promise their tribe development and other benefits if they have their vote. They claim political monopoly over “their tribal area” and insist that no outside politician can enter control over it without their permission. Tribe is set against tribe, no matter that politicians are able to change their own strategic tribal alliances routinely. The politician’s principal interest is to grab state power, for only in this way can he or she accumulates wealth and influence. Through politics of stealing public resources, and patronage for cronies, successive presidents and their associates have corrupted public morals, and given the impression that the advancement of a tribe is through the capture of presidency (though the only beneficiaries are president’s relatives and cronies). Many people respond to ethnic appeals because of their vulnerability, brought about by the market and the state, which have fundamentally disrupted the rhythm of their traditional life, and exposed them to the vagaries of mechanisms they neither control nor understand. Negative ethnic feelings then spill over into other spheres of lives.
The country has paid a heavy price for the politicisation of ethnicity. Tribal politics are based on patronage which is one cause of corruption, whether in the form of money transfers, grants of land, contracts, evasion of bureaucratic procedures, or jobs for relatives and friends. It has led to the abuse of the electoral process, bussing in voters from outside, using state agencies to rig elections or declare fraudulent “results”. The obsession with ethnicity means that it becomes the sole criterion for judging people. Very little attention is paid to social, economic and environment policies (other than on how they impact on one’s tribe). Some people are all too eager to defend their ethnic “leaders” against even well founded allegations of corruption or violence; and in this way the whole question of illegality is transformed into an issue of “harassment or guilt of tribe”, and weakens the whole concept of guilt and accountability.
Ethnic politics have influenced people’s attitude to state institutions: either they are “ours” or they are the “enemy”. The lack of trust in government is pervasive. Many communities, often justifiably, feel they have been deliberately marginalised, denied opportunities of education, ignored in recruitment to public service jobs, discriminated when they tender for government contracts, their land illegally taken away from them. The notion of equal citizenship, the foundation of justice and unity in any state, is greatly debased. All these unequal policies and practices lead to ethnic tensions and conflicts. As we saw in the 2007 elections and the subsequent election violence, they have become a major threat to human security, and ultimately to national unity.
Increasingly, various groups related to politicians are examining the Proposed Constitution from the ethnic angle, particularly the provisions on the executive, devolution, electoral system, and land reform, ignoring the impact on the national good. Such a myopic approach threatens constitutional reform. It is very important that people have an accurate idea of what the Proposed Constitution has to contribute to this important issue.
Proposed Constitution
The Proposed Constitution is based largely on the approach developed by the CKRC to the balance between the respect for ethnic diversity and the promotion of a Kenyan identity and national unity. In a multi-ethnic state it is important that each community should feel, or be made to feel, that it is part of the wider nation and be accepted as such. It should be able to practise its culture, including religion and language. All citizens should enjoy equal rights and equal opportunities. All communities should be included in state institutions and other spheres of life. If a community has been disadvantaged in the past, (like Nubians and residents of the North East) they should be compensated. In this way a state may be able to promote social solidarity which is essential to the running of the country and effectiveness of the state. As shown below, the Proposed Constitution incorporates these features and provides a good framework for promoting justice and solidarity. But we do have reservations on major points which we state at the end of this section. Before looking at the details – what does the current constitution have to contribute?
The independence and the current constitutions
The independence constitution addressed a number of issues relating to ethnic interests, particularly the fear among racial and tribal minorities about the hegemony of larger tribes. From a highly unitary state Kenya moved to a quasi-federation state through the system of regional and county governments. A second legislative chamber, the Senate, was established. At the centre a parliamentary cabinet system that allows for a collective executive was established. The response to worries about land was to set up the system of trust land to which most customary land was converted and responsibility for management given to county councils on behalf of communities. The police were re-organised, to provide autonomy on operational questions, and to regionalise it, both directed to abuse of police by the central government.
Most of these provisions were removed or diluted by the Kenyatta government within very few years, beginning on the first anniversary of independence. The parliamentary system was replaced by the presidential system in which most executive power was vested in one person. Regional government and the Senate were abolished. The police were centralised, and their operational autonomy removed. The practices of the state became highly discriminatory on both racial and tribal basis.
The current constitution does not offer any vision of a multi-cultural Kenya. There is no preamble - which is where one might expect a vision. It has a provision to prohibit discrimination on ethnic grounds, but there are several exceptions to it. It protects some aspects of culture, particularly in relation to family laws. It has a first past the post (majoritarian) election system which works against minorities. In some respects it maintains the colonial legal basis for keeping races or tribes separate.
*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.
A country is its citizens. Citizens have certain rights and privileges in any country that non-citizens do not have. In most countries only a citizen can vote, and usually only a citizen can be an MP, or hold certain posts (for example many countries would not permit a non-citizen to be an army officer). A citizen always has a right to be in their own country; other people have to get special permissions such as visas and work permits.
Citizens also have obligations over and above those they share with other residents (such as paying taxes). In some countries citizens have an obligation to serve in the national service, and are liable to be called to join or fight with the armed forces..
Although the general principle is that all citizens are equal, many Kenyans have been excluded from full citizenship. Many citizens, among them women as well as minorities, complained to the CKRC about discrimination. Although the Proposed Constitution has retained existing categories of citizenship, carrying differential rights, it removes some forms of discrimination, as follows:
• Both men and women can pass citizenship to their children (Art. 14(1))
• Both men and women married to Kenyan citizens may become citizens (Art. 15)(1)
• A person born outside Kenya is a citizen, provided that at least one parent is a citizen (though this could be limited by law to prevent citizenship passing from generation to generation through people who have no active connection with the country) (Art. 14)
• A citizen who becomes, or has become in the past, a citizen of another country is entitled to be a citizen of Kenya as well – and it seems that the intention is that the reverse is to be true, namely that a person who becomes a Kenyan may retain a previous nationality, but this will require a new law (Arts. 14(5), 16 and 15(4))
• A child adopted by a Kenyan is entitled to take Kenyan citizenship Art. 15(3))
• A child who is in Kenya and who seems to be less than 8 years old, but whose parents are unknown, will be assumed to be Kenyan
• All citizens are entitled to identity cards and passports (Art. (1) 12(b))
How does this differ from the current Constitution?
Under the existing Constitution children born outside Kenya only become citizens if their fathers are citizens; now having a citizen mother will be enough. Until now a man married to a Kenyan woman had no right to become a Kenyan, but a woman married to a Kenyan man did (the foreign husband would have had to apply after living in the country for some years, in no different position from any person not married to a citizen). Now a wife will have to wait longer to become a citizen, but both men and women married to Kenyans will be in the same position as far as becoming citizens is concerned.
At present the constitution prohibits any person from holding Kenyan citizenship and that of another country (except for children, who can hold dual citizenship until they are 21 and then must decide).
It will now be harder for foreigners living in Kenya to become citizens in the sense they will have to wait longer (7 years’ continuous residence instead of 4 years in the preceding 7 years).
The existing Constitution says nothing about adopted children or children whose parents are unknown.
The provision about a right to ID cards and passports can be used to prevent officials punishing unpopular people by withholding a passport.
Why dual nationality?
People sometimes feel that one ought to be – or even can be - loyal to one country only. A clear majority of those who expressed a view to the CKRC felt that it should be possible to have dual citizenship, though others felt that a person ought to make a choice. In the modern world many people spend part of their lives in one country and part in another. That is good not just for them but for international understanding and international commerce. Dual nationality means that they can more easily travel between the countries in which they have an interest. The arguments in favour of dual citizenship include that such a person might actually be more inclined to retain a connection with Kenya if it is possible to retain citizenship.
Another issue in Kenya relates to pastoral peoples; some of these groups move across national boundaries with their herds. This may make it very difficult to obtain citizenship (because there is a tendency for officials to suggest that they ‘belong’ on the other side whereas the truth is that they belong on both sides of the border).
In reality many people even now do have two or more passports. Not to permit this to be done lawfully is an invitation to deception and corruption.
What do other countries do? The UK has always allowed dual nationality. Until recently the USA was firmly against it, but in recent years the law has been relaxed. Canada has recognised dual nationality since 1977. There is a definite trend towards recognizing dual nationality, though most African countries have not followed the trend.
Comments
Citizenship provisions in the Proposed Constitution are much better than under the current constitution. There are still some distinctions between citizens, for example, only a citizen by birth has a constitutional right to keep their citizenship while acquiring another nationality. And only citizens by birth may hold certain offices.
Ethnicity, minorities and national integration
Prevalence of ethnicity in public life is major political and social problem facing Kenya. Our politics have become largely the politics of ethnicity. Politicians find that an easy way to build support is by playing on ethnicity, by stirring up ethnic loyalties on one hand, and ethnic animosities on the other. Sometimes they incite people against other tribes, even to violence, as is well demonstrated by the Waki Commission. They promise their tribe development and other benefits if they have their vote. They claim political monopoly over “their tribal area” and insist that no outside politician can enter control over it without their permission. Tribe is set against tribe, no matter that politicians are able to change their own strategic tribal alliances routinely. The politician’s principal interest is to grab state power, for only in this way can he or she accumulates wealth and influence. Through politics of stealing public resources, and patronage for cronies, successive presidents and their associates have corrupted public morals, and given the impression that the advancement of a tribe is through the capture of presidency (though the only beneficiaries are president’s relatives and cronies). Many people respond to ethnic appeals because of their vulnerability, brought about by the market and the state, which have fundamentally disrupted the rhythm of their traditional life, and exposed them to the vagaries of mechanisms they neither control nor understand. Negative ethnic feelings then spill over into other spheres of lives.
The country has paid a heavy price for the politicisation of ethnicity. Tribal politics are based on patronage which is one cause of corruption, whether in the form of money transfers, grants of land, contracts, evasion of bureaucratic procedures, or jobs for relatives and friends. It has led to the abuse of the electoral process, bussing in voters from outside, using state agencies to rig elections or declare fraudulent “results”. The obsession with ethnicity means that it becomes the sole criterion for judging people. Very little attention is paid to social, economic and environment policies (other than on how they impact on one’s tribe). Some people are all too eager to defend their ethnic “leaders” against even well founded allegations of corruption or violence; and in this way the whole question of illegality is transformed into an issue of “harassment or guilt of tribe”, and weakens the whole concept of guilt and accountability.
Ethnic politics have influenced people’s attitude to state institutions: either they are “ours” or they are the “enemy”. The lack of trust in government is pervasive. Many communities, often justifiably, feel they have been deliberately marginalised, denied opportunities of education, ignored in recruitment to public service jobs, discriminated when they tender for government contracts, their land illegally taken away from them. The notion of equal citizenship, the foundation of justice and unity in any state, is greatly debased. All these unequal policies and practices lead to ethnic tensions and conflicts. As we saw in the 2007 elections and the subsequent election violence, they have become a major threat to human security, and ultimately to national unity.
Increasingly, various groups related to politicians are examining the Proposed Constitution from the ethnic angle, particularly the provisions on the executive, devolution, electoral system, and land reform, ignoring the impact on the national good. Such a myopic approach threatens constitutional reform. It is very important that people have an accurate idea of what the Proposed Constitution has to contribute to this important issue.
Proposed Constitution
The Proposed Constitution is based largely on the approach developed by the CKRC to the balance between the respect for ethnic diversity and the promotion of a Kenyan identity and national unity. In a multi-ethnic state it is important that each community should feel, or be made to feel, that it is part of the wider nation and be accepted as such. It should be able to practise its culture, including religion and language. All citizens should enjoy equal rights and equal opportunities. All communities should be included in state institutions and other spheres of life. If a community has been disadvantaged in the past, (like Nubians and residents of the North East) they should be compensated. In this way a state may be able to promote social solidarity which is essential to the running of the country and effectiveness of the state. As shown below, the Proposed Constitution incorporates these features and provides a good framework for promoting justice and solidarity. But we do have reservations on major points which we state at the end of this section. Before looking at the details – what does the current constitution have to contribute?
The independence and the current constitutions
The independence constitution addressed a number of issues relating to ethnic interests, particularly the fear among racial and tribal minorities about the hegemony of larger tribes. From a highly unitary state Kenya moved to a quasi-federation state through the system of regional and county governments. A second legislative chamber, the Senate, was established. At the centre a parliamentary cabinet system that allows for a collective executive was established. The response to worries about land was to set up the system of trust land to which most customary land was converted and responsibility for management given to county councils on behalf of communities. The police were re-organised, to provide autonomy on operational questions, and to regionalise it, both directed to abuse of police by the central government.
Most of these provisions were removed or diluted by the Kenyatta government within very few years, beginning on the first anniversary of independence. The parliamentary system was replaced by the presidential system in which most executive power was vested in one person. Regional government and the Senate were abolished. The police were centralised, and their operational autonomy removed. The practices of the state became highly discriminatory on both racial and tribal basis.
The current constitution does not offer any vision of a multi-cultural Kenya. There is no preamble - which is where one might expect a vision. It has a provision to prohibit discrimination on ethnic grounds, but there are several exceptions to it. It protects some aspects of culture, particularly in relation to family laws. It has a first past the post (majoritarian) election system which works against minorities. In some respects it maintains the colonial legal basis for keeping races or tribes separate.
*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.
Subscribe to:
Posts (Atom)