Revised Understanding Constitution, COK

Kenya National Integrated Civic Education
(K-NICE)
UNDERSTANDING THE
CONSTITUTION OF KENYA
May 2012
Ministry of Justice, National

Cohesion and Constitutional Affairs
Embassy of Japan
Ministry of Justice, National Cohesion and Constitutional Affairs

Kenya National Integrated Civic Education Programme (K-NICE)
Co-operative Bank House Building
P.O. Box 56057-00200, Nairobi - Kenya
Tel: +254 020 2224029 or 2240337
Fax: +254 020 316317
Email: info@justice.go.ke; www.justice.go.ke
info@knice.go.ke; www.knice.go.ke
All or part of this publication may be reproduced freely, provided the

Ministry of Justice, National Cohesion and Constitutional Affairs is duly
acknowledge
Design and Layout

Harun M. Wanjohi
Tel: 0720 037 015
May 2012
MOJNCCA
ii
NATIONAL ANTHEM
KISWAHILI
ENGLISH
Ee Mungu nguvu yetu

Ilete baraka kwetu
Haki iwe ngao na mlinzi
Natukae kwa undugu
Amani na uhuru
Raha tupate na ustawi.
O God of all creation

Bless this our land and nation
Justice be our shield and defender
May we dwell in unity
Peace and liberty
Plenty be found within our borders.
Amkeni ndugu zetu

Tufanye sote bidii
Nasi tujitoe kwa nguvu
Nchi yetu ya Kenya
Tunayoipenda
Tuwe tayari kuilinda
Let one and all arise

With hearts both strong and true
Service be our earnest endeavour
And our homeland of Kenya
The heritage of splendour
Firm may we stand to defend
Natujenge taifa letu

Ee, ndio wajibu wetu
Kenya istahili heshima
Tuungane mikono
Pamoja kazini
Kila siku tuwe na shukrani
Let all with one accord

In common bond united
Build this our nation together
And the glory of Kenya
The fruit of our labour
Fill every heart with thanksgiving.
iii
FOREWORD
he Ministry of Justice has an important mandate in the implementation

of the Constitution and the development of requisite legal policies.
Having facilitated various governance and institutional reforms including the
operationalization of the Interim Independent Electoral Commission (IIEC)
and its successor commission the Independent Electoral and Boundaries
Commission (IEBC), the Interim Independent Boundaries Review Commission
(IIBRC), the Truth Justice and Reconciliation Commission (TJRC), the
National Cohesion and Integration Commission (NCIC) and the Interim
Independent Constitutional Dispute Resolution Court (IICDRC), the Ministry
is now faced with enormous task of promoting the peoples participation in
the implementation of the various reforms and governance processes.
The Constitution remains an important pathway to addressing Kenyas
governance problems as it anchors a wide array of institutional, legal and
normative reforms. For the Ministry of Justice, the promulgation of the
Constitution remains our greatest achievement and pride. As a nation we are
faced with the enormous task of developing appropriate legislation and putting
in place structures, policies and institutions to implement this Constitution.
The Ministry has facilitated the enactment of legislation that have had great
impact on numerous reform areas such as electoral, judicial, land, security
sector reforms and the institutionalization of national values and principles.
The Ministry has also provided leadership and guidance throughout the
constitutional reform process and now in its implementation. Aware that the
Constitution places the people of Kenya at the centre of the implementation
process, the Ministry has developed, in collaboration with Non-State Actors,
the Kenya National Integrated Civic Education (K-NICE) Programme aimed
at providing civic education on the Constitution. The Ministry appreciates
that for the people to participate, they must understand the contents of the
Constitution, their rights, roles and responsibilities in making the constitution
a reality.
Understanding the Constitution is one of the publications developed to provide
the citizen with an overview of the Constitution of Kenya. It is expected that
this publication will sufficiently empower the people of Kenya to engage in the
governance process, strengthen avenues for accountability and facilitate the
people of Kenya to enjoy better standards of living.
I wish to assure all Kenyans of the Ministrys commitment to faithful
implementation of the Constitution. My Ministry will continue to promote the
peoples participation for a prosperous and united nation.
Hon. Eugene Wamalwa, MP
Minister for Justice, National Cohesion and Constitutional Affairs
iv
EXECUTIVE SUMMARY
enyas long and determined search for a new Constitution came to a fruition
with the promulgation of the Constitution in 2010. The Constitution
presents a unique opportunity for social, legal and institutional reform and
it recognises the importance of public participation in governance. Effective
public participation however, depends on the public having access to accurate
and comprehensive information so that citizens potentially affected by or
interested in a decision understand all processes. The challenge therefore lies
in the ability of the citizens of Kenya to effectively play a role in the constitutional
implementation process. To do this the people must understand the contents
of the Constitution, their rights, roles and responsibilities.
The Cabinet, aware of the importance of civic awareness in the successful
implementation of the Constitution, mandated the Ministry of Justice, National
Cohesion and Constitutional Affairs to initiate and coordinate a structured civic
education programme, as a means of bridge in the information gap and to equip
the citizens with the necessary tools for engagement in the implementation
and governance processes. The Kenya National Civic Education (K-NICE)
Programme was developed as an integrated, multi-stakeholder programme
that seeks to provide civic education on the Constitution to every Kenyan.
Civic education is critical in facilitating fundamental national transformation
and it is essential in creating the necessary civic awareness and engendering
robust public engagement in the Constitution implementation process.
The K-NICE programme seeks to address some of the challenges faced in the
provision of civic education such as the absence of a civic education framework,
non-standardized curriculum, supporting materials and teaching aids and
poorly trained or unskilled personnel. The programme will therefore develop
a comprehensive curriculum and several thematic guides on identified areas.
Understanding the Constitution is a publication that seeks to give a simplified
explanation of the main constitutional provisions. The overall objective of this
publication is to provide an overview of the main concepts of the Constitution
in plain language. In particular the publication:

Assesses the relationship between the Constitution and other laws;

Reviews the history of Constitution making in Kenya;
Reviews key concepts and constitutional principles and processes;
Outlines the various structures of government and the role of the people
in governance;
This publication gives a general overview of the Constitution of Kenya,

2010. It also seeks to create awareness on the organs for implementation
of the Constitutions content, structures and processes. Indeed without this
awareness, the citizens participation may not be realized. Understanding the
Constitution will therefore enable citizens to actively engage government and
v
governmental processes as a civic duty and inculcate a culture of adherence

to the Constitution amongst individuals, non-state actors and government
agencies.
Module One defines the term Constitution and constitutionalism and the
relationship between the Constitution and other laws. This module also
addresses briefly the history and context of Constitution making in Kenya
and the basic concepts of the Constitution.
Module Two addresses the concept of citizenship including ways of acquiring
and losing Kenyan citizenship, the rights and obligations of a citizen and the
importance of responsible citizens. The concept of dual citizenship is also
discussed.
Module Three highlights the context and development of human rights. It
emphasises the constitutional provisions for the protection of human rights
and the role of various actors in protecting the bill of rights guaranteed in
the Constitution. The module further outlines the international human rights
instruments which form the cornerstone of fundamental rights and freedoms.
Module Four highlights responsibilities of State officers. It gives the objectives
of vetting of Public Officers. It also highlights the role of the Ethics and AntiCorruption Commission in ensuring that there is compliance by all public
officers as required by Chapter Six of the Constitution.
Module Five gives a broad description of the concept of land as property in
Kenya. It discusses the land tenure system with emphasis on reforms in the
administration and management of land and the protection of the environment
and natural resources.
Module Six gives a broad account of the representation and electoral framework
as the basis of recruiting political leadership in the Kenyas democratic system.
It emphasises the connection between representation, values, human rights,
principles of leadership and the major elements of the electoral process.
Module Seven addresses the structure of Government at the national level
under the constitutional framework, the structure, powers and functions of
the three organs of government and their relations with each other.
Module Eight explains the design of the executive under the Constitution,
the functions of the President under the former Constitution and the current
Constitution and how the executive will be made responsible and accountable.
Module Nine gives a broad account of the Judiciary, the principles of judicial
authority and the institutional framework. This module appreciates that ina
democracy, the role of judiciary is crucial as it is considered afaithful keeper
of theconstitutional assurances.
vi
Module Ten seeks to highlight the role of public service as the principle organ
of service delivery by the government. It identifies elements that support
public sector reforms.
Module Eleven creates an understanding on the principles of National
Security, organs of National Security, The Kenya Defence Force, the National
Intelligence Service and the National Police Service.
Module Twelve discusses the characteristics of Commissions and Independent
Offices, the objects of Commissions and Independent Offices and the functions
of Commissions and Independent Offices.
Module Thirteen discusses the new system of governance that is envisaged in
the Constitution. It demonstrates the distribution of functions between the
national government and the county governments.
Module Fourteen provides information that empowers the citizens to appreciate
the opportunities created by the devolved systems and to enable the public to
engage with devolution and effectively engage with the county governments.
Module Fifteen looks at the design of the public financial system, sources
of revenue, allocation of revenue, development of the national budget,
institutional and accountability measures for public finance. The module
then assesses how the public finance system addresses the constitutional
principles and engenders public participation.
Module Sixteen elaborates the transitional arrangements for constitutional
transition, the policy and institutional framework for constitutional
development, the implications of the first elections under the Constitution
and the transitional mechanisms to devolved system.
We hope that the publication will be useful as a point of reference for civic
educators and Kenyans in general and that it shall enhance our understanding
and promote ownership of our Constitution.
Gichira Kibara, EBS

Ag. Permanent Secretary, Ministry of Justice, National Cohesion and
Constitutional Affairs,
vii
PREFACE
he Kenya Vision 2030 envisions a country whose citizenry are engaged

in the governance of their country. This amplifies the need for civic
education. Civic education prepares the people of a country, to exercise their
responsibilities as citizens. Civic education is political education that helps
cultivate knowledge and instill skills necessary for political, economic and
social participation.
Previously, civic education had been spearheaded by various Civil Society
Organizations spread across the country. Indeed, the independence
Constitution and its provisions did not enjoy as much publicity or invoke
as much positive interest as the current one. Most Kenyans at the time had
relegated its interpretation and application to the lawyers and the various
organs of government.
The promulgation of the Constitution of Kenya in 2010 prompted the
development of the Kenya National Integrated Civic Education (K-NICE)
Programme aimed at providing civic education on the Constitution. The
programme is a collaboration between the Government and Non-State Actors
who include the various civil society organizations, professional associations,
consortia and religious organization.
Unlike past initiatives, this programme will be continuous and it will ensure
that the knowledge gained is incremental and sustainable. The Programme will
develop several civic education materials for amplifying programme messages
and developing greater understanding on the content of the Constitution.
Accordingly Understanding the Constitution was developed to provide the
reader with an overview of the Constitution of Kenya. The modules clarify in
a simple and elaborate manner the provisions of the Constitution and provide
an opportunity for the reader to appreciate and understand the Constitution,
its provisions, the institutions it creates and the processes. Equipped with this
knowledge Kenyans can ably respect, uphold and defend this Constitution
(Article 3).
This publication is a useful tool particularly for civic educators and all Kenyans
as it is designed to communicate and cement the content of the Constitution
to all. We hope that through reading this publication, Kenyans will foster a
system that promotes a culture of constitutionalism.
viii
I wish to express appreciation to everyone whose hours and resources were

employed in the development of this publication. I hope that the vision of
K-NICE will be realized in all parts of Kenya; from the furthest northern point
to the south, from the furthest eastern point to the west. This collaboration
between the Government and Non State actors will mark the beginning of a
journey towards the promise of the Constitution.
Hongera K-NICE!!
Rev. Jephthah K. Gathaka

Chair, Material Development Subcommittee, Joint Steering Committee,
KNICE
ix
ACKNOWLEDGEMENTS
he preparation and completion of this manual was made possible by the

collaborative efforts of several persons and Institutions to whom we owe
our most sincere gratitude. The Ministry of Justice, National Cohesion and
Constitutional Affairs appreciates the generous support by the Government
of Kenya in collaboration with the United Nations Development Programme
(UNDP) and the Embassy of Japan.
The manual is an outcome of deliberations among various stakeholders.
We appreciate the many helpful comments and suggestions received from
members of the Kenya National Integrated Civic Education (K-NICE), in
particular members of the Material Development Sub-Committee namely,
Rev. Jephthah Gathaka; Mrs. Jane Nyaga; Mrs. Rebecca Muniu; Ms Vicki
Okumu and Mr. Abubakar Said.
The Ministry is also grateful for the contribution of the various consultants
who were involved in the initial preparation and design of the manual namely
Ms Veronica Nduva; Mr. Gideon Ochanda; Ms Lillian Ohayo; Mr. Ngari Gituku
and Mr. Robert Ndwiga. We are particularly grateful to Mrs. Lucy M. Kambuni
and Mr. Joash O. Dache who gave invaluable technical inputs and editorial
support. To Mr. James Kamawira (Kham) who developed the illustrations and
Mr. Harun M. Wanjohi, for the final layout and design, we remain grateful.
We recognise the Editor in Chief Mr. Gichira Kibara, for the policy guidance
and expert support he offered to the members of the secretariat who authored
the publication and Mrs. Maryanne Njau-Kimani for her extremely useful
contribution and comments.
We acknowledge the members of the K-NICE Secretariat whose tireless efforts
and extensive contribution have led to the production of this final document.
We particularly want to appreciate and acknowledge the contribution of Ms
Mugure Gituto; Mr. James Wamugo and Mr. Moses Owuor who collectively
authored this publication. Special gratitude is extended to Ms Sophie E.
Kaibiria and Ms Marie Blessing Nganga, for their invaluable technical input
and Ms Susan Karuri for her assistance at various stages in the preparation
of the manual.
Finally we appreciate all the Ministry of Justice, National Cohesion and
Constitutional Affairs staff members for their continued support throughout
the development of this publication.
TABLE OF CONTENTS
FOREWORD.................................................................................................... iv
EXECUTIVE SUMMARY.................................................................................... v
PREFACE...................................................................................................... viii
ACKNOWLEDGEMENTS.................................................................................... x
GLOSSARY OF ABBREVIATIONS................................................................... xvi
MODULE 1: CONSTITUTIONALISM AND THE KENYA

CONSTITUTION......................................................... 1
1.1 Introduction.................................................................................................2
1.2
Overview of Outcomes..................................................................................2
1.3
The Constitution and Constitutionalism ......................................................2
1.4
Significance of a Constitution.......................................................................3
1.5
The Relationship between the Constitution and Other Laws.........................3
1.6
History and Context of Constitution Making in Kenya..................................4
1.7
Overview of the Constitution of Kenya, 2010................................................6
1.8. Basic Concepts of the Constitution .............................................................8
1.9.
National Values and Principles of Governance............................................12
1.10. Implementing National Values and Principles of Governance......................15
1.11. National Symbols.......................................................................................17
1.12 The Republic..............................................................................................19
MODULE 2: CITIZENSHIP........................................................... 21
2.1 Introduction...............................................................................................22
2.2
Overview of Outcomes................................................................................22
2.3
What is Citizenship....................................................................................22
2.4
Who is a Citizen.........................................................................................22
2.5
How Does One Become a Kenyan Citizen...................................................22
2.6
Ways of Losing Kenyan Citizenship............................................................23
2.7
The Concept of Dual Citizenship or Nationality..........................................24
2.8
Rights and Obligations of a Citizen.............................................................24
2.9
Obligations and Responsibilities of Citizenship...........................................25
2.10 The Importance of Responsible Citizenship................................................26
MODULE 3: BILL OF RIGHTS..................................................... 27
3.1 Introduction...............................................................................................28
3.2
3.3
The Meaning of Human Rights...................................................................28
3.4
The Characteristics of Human Rights.........................................................29
3.5
Importance of Human Rights.....................................................................29
3.6
The Historical Development of Human Rights.............................................29
3.7
The Classification of Human Rights...........................................................30
3.8
International Human Rights instruments...................................................31
xi
3.9
3.10
3.11
3.12
3.13
3.14
3.15
3.16
3.17
3.18
Regional (African) Human Rights Instruments............................................32

The Bill of Rights in the Constitution of Kenya...........................................33
Limitation of Rights...................................................................................40
Application of the Bill of Rights..................................................................42
Role of the State in the Application of Rights..............................................43
Enforcement of Rights................................................................................44
The Role of Human Rights Commissions....................................................44
The Kenya National Commission on Human Rights Act..............................44
National Gender and Equality Commission Act..........................................45
The Commission on Administrative Justice Act..........................................46
MODULE 4: LEADERSHIP, ETHICS AND INTEGRITY................... 49
4.1 Introduction...............................................................................................50
4.2
4.3
A Leader and Leadership............................................................................50
4.4
Meaning of Integrity...................................................................................50
4.5
Qualities of a Good Leader.........................................................................51
4.6
Responsibilities of Leadership....................................................................52
4.7
Conduct of State Officers...........................................................................53
4.8
Financial Probity of State Officers..............................................................53
4.9
The Importance of Vetting of Public Officers...............................................54
4.10 The Role of the Ethics and Anti Corruption Commission............................54
MODULE 5: LAND AND ENVIRONMENT...................................... 57
5.1.
5.2
5.3
5.4
5.5
5.6
5.7
5.8
Introduction...............................................................................................58
Principles of Land Policy............................................................................58
Classification of Land.................................................................................59
Landholding by Non-Citizens.....................................................................61
The National Land Commission..................................................................62
Land Laws.................................................................................................62
Environment and Natural Resources..........................................................63
MODULE 6: REPRESENTATION AND ELECTORAL PROCESSES... 67
6.1 Introduction...............................................................................................68
6.2
6.3
Representation in Context and Key Concepts.............................................68
6.4
Legal and Institutional Framework for Electoral Administration.................71
6.5
When Vacancies Occur in Elective Offices..................................................74
6.6
Institutional Framework for Elections Management....................................75
6.7
Elections and Referenda............................................................................78
6.8
Recall of Members of Parliament................................................................79
6.9
Election Offences.......................................................................................82
6.10 Referendum...............................................................................................84
6.11 Electoral Disputes......................................................................................85
xii
MODULE 7: STRUCTURE OF THE STATE: THE LEGISLATURE.... 87
7.1 Introduction...............................................................................................88
7.2
7.3 Parliament.................................................................................................88
7.4
Special Procedures for Particular Bills........................................................90
7.5
Offices in Parliament..................................................................................94
7.6
Opportunities for Public Participation........................................................96
7.7
Parliamentary Accountability.....................................................................97
MODULE 8: STRUCTURE OF THE STATE: THE NATIONAL

EXECUTIVE............................................................. 99
8.1 Introduction.............................................................................................100
8.2
Overview of Outcomes..............................................................................100
8.3
The Design of the Executive ....................................................................101
8.4
The Structure of the National Executive...................................................102
8.5
How the Constitution make the President Accountable.............................104
8.6
Removal from Office.................................................................................104
8.7
The Deputy President...............................................................................105
8.8
The Cabinet.............................................................................................105
8.9
Other Offices............................................................................................105
MODULE 9: STRUCTURE OF THE STATE: THE JUDICIARY...... 109
9.1 Introduction ............................................................................................110

9.2
Overview of Outcomes .............................................................................110
9.3
Independence of the Judiciary.................................................................110
9.4
Principles of Judicial Authority................................................................111
9.5
Structure of the Judiciary........................................................................112
9.6
Supreme Court........................................................................................112
9.7
System of Courts ....................................................................................113
9.8
Removal from Office.................................................................................114
9.9
The Judicial Service Commission.............................................................115
MODULE 10: PUBLIC SERVICE................................................. 117
10.1 Introduction ............................................................................................118

10.2 Overview of Outcomes .............................................................................118
10.3 Values and Principles of Public Service ...................................................118
10.4 The Public Service Commission................................................................119
10.5 Protection of the Public Officer.................................................................119
10.6 Staffing of County Governments...............................................................120
10.7 The Teachers Service Commission............................................................120
MODULE 11: NATIONAL SECURITY.......................................... 121
11.1 Introduction.............................................................................................122
11.2 Overview of Outcomes..............................................................................122
xiii
11.3
11.4
11.5
11.6
Principles National Security.....................................................................122

National Security Council........................................................................123
National Security Organs.........................................................................123
The National Police Service Commission...................................................125
MODULE 12: COMMISSIONS AND INDEPENDENT STATE OFFICES.

........................................................................... 127
12.1 Introduction.............................................................................................128
12.3 Reporting by Commissions and Independent Offices................................131
MODULE 13: SYSTEM OF GOVERNANCE.................................. 133
13.1 Introduction.............................................................................................134
MODULE 14: COUNTY GOVERNMENTS..................................... 139
14.1 Introduction.............................................................................................140
14.3 Meaning and Objectives of Devolution......................................................141
14.4 Principles and Concept of Devolution.......................................................142
14.5 Decentralisation & Subsidiary..................................................................143
14.6 The Structure of County Governments.....................................................144
14.7 County Assembly.....................................................................................144
14.8 The functions of County Assembly...........................................................146
14.9 County Executive.....................................................................................149
14.10 County Governor and Deputy County Governor.......................................148
14.11 Relationship between National and County Governments.........................149
14.12 Transfer of function from one government to another...............................149
14.13 Intervention of County Operations by the National Government...............150
14.14 Suspension of a County Government.......................................................150
14.15 The County Public Service.......................................................................151
14.16 Lower Units of Decentralisation under the County Government................152
14.17 Cities and Urban Areas............................................................................152
14.18 Provincial Administration.........................................................................153
14.19 Public Participation in County Governments............................................153
MODULE 15: PUBLIC FINANCE................................................. 157
15.1 Introduction.............................................................................................158
15.3 Principles of Pubic Financial Management...............................................159
15.4 National and County Revenue..................................................................159
15.5 Public Financial Accountability: Control, Reporting and Audits................163
MODULE 16: IMPLEMENTATION OF THE CONSTITUTION........ 167

16.1
Overview of Outcomes..............................................................................168
xiv
16.2
16.3
16.4
16.5
16.6
Transitional arrangements under the Constitution...................................168

Existing Laws..........................................................................................169
Mandatory legislations and timelines ......................................................169
Immediate Commissions and Offices........................................................169
Implementing devolution: Transition of Functions between the two levels of
government..............................................................................................171
16.7 Organs to Facilitate Transition.................................................................172
16.8 Transition to the Devolved System of Government....................................174
16.9 Amendment.............................................................................................178
List of Figures
Fig
Fig
Fig
Fig
Fig
Fig
Fig
Fig
Fig
Fig
1: The CKRC Process.......................................................................................4

2: The National Government..........................................................................10
3: The Electoral Cycle....................................................................................79
4: Procedure for Making Law..........................................................................90
5: Origination of Bills.....................................................................................92
6: National Police Service.............................................................................124
7: The organs of County Governments.........................................................144
8: Intervention of County Operations by the National Government...............150
9: Organs to Oversee Transition...................................................................175
10: Showing Phased Transition......................................................................177
List of Tables
Table
Table
Table
Table
Table
Table
1:
2:
3:
4:
5:
6:
Arrangement of Chapters and Schedules................................................7

Classification of Rights.........................................................................30
Bill of Rights.........................................................................................34
Elective Positions and their Requirements............................................72
Election offences and their Penalties.....................................................82
Taxes to be imposed by the National and County Governments........... 160
xv
GLOSSARY OF ABBREVIATIONS
ACHPR
ACRWA
African Charter on Human and Peoples Rights

African Charter on Human and Peoples Rights on the Rights of
Women in Africa
ACRWC
African Charter on the Rights and Welfare of the Child
AG Attorney General
AYC
African Youth Charter
CAT
The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment
CEDAW
The Convention on the Elimination of All Forms of Discrimination
Against Women
CERD
The International Convention on the Elimination of All Forms of
Racial Discrimination
CIC Commission for the Implementation of the Constitution
CKRC Constitution of Kenya Review Commission
CoE Committee of Experts
CPRMW
Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families
CRA
Commission on Revenue Allocation
CRC
Convention on the Rights of the Child
CRPD
Convention on the Rights of Persons with Disabilities
CSR
The Convention (and Protocol) relating to the Status of Refugees
ICC
International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICESCR
International Covenant on Economic, Social and Cultural Rights
IEBC
Independent Electoral Boundaries Commission
IPPG Inter Parties Parliamentary Group
K-NICE
KLRC Kenya Law Reform Commission
MP
Member of Parliament
PSC Parliamentary Select Committee
UDHR Universal Declaration of Human Rights
UN United Nations
xvi
MODULE 1:
Constitutionalism and
the Kenya Constitution
Article 3: I will respect, uphold and defend my Constitution
Elewa Katiba, Jenga Nchi
1.1 Introduction
The Constitution of Kenya 2010 was adopted on the 27th of August 2010
after a successful vote in a national referendum held on 4th August
2010. The Constitution is the foundation of all the laws in Kenya. It
lays out a broad framework for the aspirations and hopes of Kenyans
and how to achieve them. It sets out broad national goals and creates
new institutions and States their functions and responsibilities. The
new Constitution fundamentally changes the system of governance; it
devolves and limits governmental power and authority. It is a binding
agreement between the people of Kenya, their leaders and the governing
institutions.
This module gives a broad description of the concept of constitutionalism,
sovereignty of the Constitution and the People of Kenya as the foundation
of our constitutional heritage. It emphasises the collective power of the
people of Kenya and the manner in which sovereignty is exercised.
The module further outlines the national values and principles of
governance as the corner stone of legitimacy for all actions that seek to
develop or implement public policy decisions. These values should be
understood and evaluated by the extent to which they give support to
nation building and promote good governance.
1.2
Overview of Outcomes
1.3
The Constitution and Constitutionalism
This module is intended to create an understanding of the following:1. The meaning of a Constitution and constitutionalism;
2. Significance of a Constitution;
3. The relationship between the Constitution and other laws;
4. History and context of Constitution making in Kenya;
5. An overview of the Constitution of Kenya 2010; and
6. Basic concepts of the Constitution.
A Constitution is defined as rules that regulate the system of

government within a State. It provides for powers to be exercised by
various institutions/agencies within government, it determines how
these institutions are to interact and co-exist with one another and the
relationship between the government and the individual. A Constitution
also regulates the allocation of functions, powers and duties among the
various institutions/agencies and officers of government, and defines
the relationships between them and the public. A Constitution provides
the scope for a good government.
Understanding the Constitution of Kenya
Constitutionalism is fidelity to the Constitution. It means being faithful to

the Constitution and observing it. Constitutions are sometimes ignored
or disregarded but constitutionalism implies that all institutions observe
powers and authority donated to them by the people and enshrined
in the Constitution. A key element in the idea of constitutionalism is
control of State power. That government is limited in its powers and
that the exercise of its authority depends on observance of those limits.
Therefore the organs of government cannot be legally entitled to change
or expunge those limits at their pleasure. This protects the people from
unwarranted exercise or abuse of State power.
1.4
Significance of a Constitution
A Constitution provides the basis within which a governments laws

and policies are to be developed and implemented. It binds people
together and provides for harmonious existence among the governance
institutions, between individuals and the State and among individuals
themselves. In other words, the Constitution creates a stable political
and legal order. A Constitution as the fundamental law is significant
for it among others:a. establishes rules for allocation of State power;
b. ensures the smooth operation of the political system through
prescribed institutions;
c. contributes to democracy by inculcating common values it
enshrines;
d. determines the ways in which State institutions exercise State
power;
e. provides for the participation of citizens in affairs of the State,
particularly through regular elections;
f. empowers citizens by protecting their rights as well as limiting
State action;
g. establishes rules for peaceful transition in government;
h. ensures predictability of State action; and
i. establishes procedures for dispute settlement.
1.5
The Relationship Between the Constitution and Other Laws
The Constitution is a law that is superior to all other laws of the land.
It is the supreme law. Therefore all laws, policies, rules and regulations
must be consistent with or conform to the Constitution. Where there
is conflict between the Constitution and any other law, that other law
is declared invalid or unconstitutional.
From the beginning, the Kenyan Constitution safeguards its supremacy

and provides that it binds all State Organs; that State authority can
only be exercised as provided for in the Constitution and that the
Constitution cannot be challenged by other State Organs or by the
court. Any other law that disregards the Constitution is unacceptable
and illegal (Article 2).
1.6 History and Context of Constitution Making in Kenya
The journey to the new Constitution has taken over 20 years. The
clamour for a new Constitution started in earnest in the 1990s. The
former Constitution was driven by the lack of peoples participation
in national and local decision making and concentration of power in
the executive to the detriment of other State organs and institutions.
The initial attempts to challenge the political leadership were met
with violent reprisals. Alternative voices, be they from the academia,
workers movements, civil society and the faith - led processes were
silenced or sent into exile. The reform voices could, however, not be
silenced forever.
Between 1992 and 2010, many attempts were made to review the
Constitution. These included the repeal by Parliament in 1991 of section
2A which had previously made Kenya a one party State and the Inter
Parties Parliamentary Group (IPPG) reforms. To facilitate the review of
the Constitution, the Constitution of Kenya Review Act was passed and
it established the Constitution of Kenya Review Commission (CKRC)
to collect public views and publish a draft Constitution. The draft
Constitution was published, discussed and debated at the National
Constitutional Conference (Bomas of Kenya process) where delegates
from all parts of Kenya adopted the draft Constitution. Parliament
debated and revised the draft Constitution and subjected it to a national
referendum in November 2005. The Proposed Constitution was rejected
due to some contentious issues.
Fig 1: The CKRC Process

CKRC
collects
public
views
CKRC
publishes
Draft
Constitution
Draft debated
and adopted
by the National
Constitutional
Conference
National Assembly
debated and
revised
Proposed
Constitution
Referendum
held
The next phase towards the current Constitution began in 2008 with the
passing of the Constitution of Kenya (Amendment) Act. The Legislation
Act was passed to provide for a framework for resolving the contentious
issues and completing the review process. It established five organs of
review. These organs were:
a. The Committee of Experts (CoE);
b. The Parliamentary Select Committee (PSC);
c. The National Assembly;
d. The Reference Group; and
e. The Referendum.
The Committee of Experts (CoE) identified the contentious and non
contentious issues guided primarily by previous draft documents
relevant reports public, thematic and sectoral consultations. They
identified the issues around the following matters as outstanding:
The Executive;
The Legislature;
Devolution of power; and
Transition.
The Committee of Experts collected, combined and harmonized views
on the contentious issues and together with Parliament, produced the
Proposed New Constitution (PNC) which was put to the Referendum on
the 4th of August, 2010. Kenyans overwhelmingly voted to adopt this
draft which became the Constitution of Kenya upon its promulgation
on 27th August, 2010.
The Constitution sets as its fundamental purpose a commitment to
nurturing and protecting the well being of the individual, the family,
the communities and the nation. It seeks to create a society that is
open, responsible, respects human dignity and is patriotic, united and
democratic. It further seeks to establish a system of governance that
is fair, accountable and participatory under public officers that are
selfless, honest, competent and competitively selected.
In order to realize its overall objective and intent, the Constitution
has recognized the sovereignty of the people and placed immense
responsibilities in their hands. It requires the people to shift their
energies from haki yetu to jukumu letu (rights to responsibilities). It,
also, requires that functions and provision of services be devolved to
the lowest possible level that is efficient and practicable.
5
1.7
Overview of the Constitution of Kenya, 2010

The Constitution of Kenya is modern, progressive and pro-people. It
is founded on democratic principles of clear checks and balances,
separation of powers and social justice. Some of the salient features
of the Constitution are that it:sets
ion
protects the sovereignty of the
The Constitut
a
ental purpose
people and safeguards peoples
as its fundam
d
an
g
to nurturin
commitment
involvement
and
effective
of
well being
protecting the
e
participation in Government;
, the family, th
the individual
clearly States that sovereign
and the nation
communities
power belongs to and is
exercised by the people of
Kenya either directly or
through their representatives;
stipulates national values and principles of governance which
provide the bedrock that guides and binds all persons, State
organs and State officers whenever they implement public
policy decisions or the law;
promotes public participation, transparency and accountability
in public affairs;
has a modern, comprehensive Bill of Rights which has been
expanded to include socio-economic and cultural rights as well
as group rights;
clearly allocates and separates powers of State organs;
provides for proper checks and balances in governance to
control abuse of power;
creates independent public service institutions;
strengthens the independence of the Judiciary;
contains affirmative action for women, the youth, persons with
disabilities and marginalized communities and prohibits all
forms of discrimination;
provides for equitable distribution of resources and opportunities;
provides for devolved government;
provides for principles and responsibilities of most institutions.
For instance, it States the principles of the electoral system and
judicial authority. It further provides for the principles and the
structure of the National Executive;
defines the role of institutions such as Parliament and the
objectives of devolution. This will help the public to assess the
performance of public institutions;

provides for transitional requirements that ensure a smooth
migration from the former constitutional order to the new one;
provides a mechanism for its implementation, by creating
specific organs of implementation such as the Kenya Law
Reform Commission, the Attorney General and the Commission
for the Implementation of the Constitution;
unlike the former Constitution, this Constitution is not easy
to amend. It safeguards the supremacy and the sovereignty
of the people of Kenya, by providing for stringent amendment
procedures.
The Constitution is divided into two hundred and sisty four (264)
Articles, eighteen (18) Chapters and six (6) Schedules and addresses the
following matters:
Table 1: Arrangement of Chapters and Schedules
Chapter 1:
Sovereignty of the people and the supremacy of

the Constitution
Chapter 2:
The Republic
Chapter 3: Citizenship
Chapter 4:
The Bill of Rights
Chapter 5:
Land and Environment
Chapter 6:
Leadership and Integrity
Chapter 7:
Representation of the People
Chapter 8:
The Legislature
Chapter 9:
The Executive
Chapter 10: The Judiciary

Chapter 11: Devolved Government
Chapter 12: Public Finance
Chapter 13: The Public Service
Chapter 14: National Security
Chapter 15: Commissions and Independent Offices
Chapter 16: Amendment of the Constitution
Chapter 17: General Provisions
Chapter 18: Transitional and Consequential Provisions
7
Schedule 1: Counties
Schedule 2: National Symbols
Schedule 3: National Oaths and Affirmations
Schedule 4: Distribution of functions between National and
County Governments
Schedule 5: Legislation to be enacted by Parliament and
Schedule 6: Transitional and Consequential Provisions
The Constitution is discussed according to themes derived from the
structure described above.
1.8. Basic Concepts of the Constitution

1.8.1 The Preamble
A preamble is the introductory statement in the Constitution that States
the intent of the Constitution. The Constitution of Kenya unlike the
former Constitution begins with the preamble which captures the overall
spirit of the Constitution. The preamble:i.
ii.
recognizes the supremacy of the Almighty God;

pays tribute to our heroes who struggled to bring freedom and
justice;
iii. celebrates our ethnic, cultural and religious diversity;
iv. asserts our desire to live as one indivisible sovereign nation;
v. validates our resolve to nurture, protect and sustain the
environment for our benefit and that of future generations;
vi. emphasizes our commitment to nurture and protect the wellbeing of the individual, the family, communities and the
nation;
vii. recognizes the desire by Kenyans to be governed on the
basis of essential values of human rights, equality, freedom,
democracy, social justice and the rule of law;
viii. affirms that Kenyans have a sovereign and inalienable
right to determine their form of government and to enact a
Constitution for themselves.
In summary, the preamble sums up the values and objectives of our
Constitution. It also affirms the supremacy of God and the centrality of
the people of Kenya.
1.8.2. The Concept of Sovereignty of the People

Sovereignty refers to the legitimacy of the State is created and sustained
by the will or consent of its people, who are the source of all political
power. Benjamin Franklin, one of the founders of the United States of
America described this concept of sovereignty using the following words:
In free governments, the rulers are the servants and the
people their superiors and sovereigns.
One of the strongest elements espoused in the Constitution is the
centrality of the people. From the onset all sovereign power is vested in
the people of Kenya and this power is to be exercised in accordance with
the Constitution. The people may exercise their sovereign power either
directly or through their democratically elected representatives (Article
1). Sovereign power is delegated to State Organs which are required
to perform their functions in accordance with the Constitution. These
State organs are:
Parliament and county assemblies;
The national executive and county executives; and
The Judiciary and Independent tribunals
Sovereign power is the collective power of all Kenyans acting in concert
or as a collective. It is the ultimate power of the people as a collective
exercised is through collective actions such as a referendum.
1.8.3. Supremacy of the Constitution
The Constitution confers the highest legal authority to itself. This
is referred to as supremacy of the Constitution. This concept means
that any other law that is enacted is lower in rank in comparison to
the Constitution. The Constitution creates institutions, regulates their
functions and limits the powers of these institutions. Any law, policy,
declaration or actions that contradicts the Constitution is considered
invalid. All organs of the State are
subordinate to the Constitution
t all
because they are creatures of the
From the onse
the
er is vested in
Constitution which is an expression
sovereign pow
er
w
ya and this po
of the sovereign will of the people of
people of Ken
ance
sed in accord
is to be exerci
Kenya.
stitution.
with the Con
1.8.4. Separation of Powers

Separation of power refers to division of political power between the
Executive, Legislature and Judiciary. Separation of the legislative,
executive and judicial power is considered an essential element of any
democratic system. This is because it improves accountability and
facilitates appropriate checks and balances. It ensures that no arm of
government has monopoly of power and there is diffusion rather than a
concentration of power within the State. Separation of powers further
introduces a system of checks and balances to avoid abuse of power and
protect the rights and liberties of citizens.
Fig 2: The National Government
1.8.5. Rule of Law

The core of the principle of the rule of law is that all persons and
institutions are bound by the law. This means that no branch of
government or public officer or person is above the law. The concept of
the rule of law restricts any person or State organ from acting arbitrarily
outside the law expecting every person and every State organ to submit,
obey, and be regulated by law. In other words the rule of law promotes
development as it guarantees orderly conduct of society. The rule of law
is one of the principles of governance that the Constitution recognizes
and it is recognised as a principal right through the entire Constitution.
Its essential characteristics are: the supremacy of law, which means that all persons (individuals
and government) are subject to law;
restrictions on the exercise of discretionary power;
an independent Judiciary; and
the exercise by Parliament of the legislative power.
10
1.8.6. Public Participation

Public participation is based on the
belief that those who are affected by
ation is based
Public particip
a decision have a right to be involved
e who are
belief that thos
e
th
on
ght to
in the decision-making process.
sion have a ri
cted by a deci
fe
af
aking
It includes the promise that the
the decision-m
in
ed
lv
vo
in
be
ise
publics contribution will influence
cludes the prom
process. It in
will
on
s contributi
policy decisions. Public participation
that the public
y decisions
promotes sustainable decisions by
influence polic
recognizing the needs and interests
of all participants. It encourages the
involvement of those potentially affected by or interested in a decision.
Participation transforms the democratic system by creating a permanent
connection between the governed and those who govern. The joint venture
permits more reasoned decisions, enables a better understanding of
the problems that preoccupy a society, and allows the people to work
cooperatively towards possible solutions. In order to build a participatory
democracy, it is necessary to provide citizens with necessary information
on how they can engage and which institutional framework will allow for
effective participation on public issues. The Constitution expresses the
importance of public participation (Article 10 (1) (a)) and the need to
institutionalize it in all governance processes through access to decision
making and access to public information (Article 35).
1.8.7. Affirmative Action
Affirmative action refers to policies that consider the inclusion of the
historically marginalized and minority groups into the national fabric.
Throughout the entire Constitution, the principle of equality and non
discrimination is emphasized. This is based on the understanding
that certain sections of the society have experienced systematic
marginalization occasioned by cultural beliefs, geographic and climatic
conditions among others. These groups have not been able to fully
participate in the countrys public affairs and have suffered a history of
discrimination.
Affirmative action policies apply to those that receive unequal
development, unequal distribution of national resources and unequal
participation in decision-making and management of public affairs
especially women, persons with disabilities, the youth, pastoralists and
minority communities.
11
1.9.
National Values and Principles of Governance

Groups, societies, or cultures
have values that are largely
shared by their members.
Values
identify
those
aspirations,
conditions
or
characteristics that members of
the society consider important.
They represent what is good,
beneficial, important, useful,
beautiful,
desirable
and
constructive.
ply to
tion policies ap
Affirmative ac
pm
velo ent,
ive unequal de
ce
re
at
th
e
os
th
al resources
tion of nation
bu
ri
st
di
l
ua
uneq
cisionicipation in de
rt
pa
l
ua
eq
un
and
public
anagement of
making and m
rsons with
ally women, pe
affairs especi
alists and
e youth, pastor
th
s,
ie
lit
bi
sa
di
munities.
minority com
The Constitution provides national values and principles to guide those

who exercise power on behalf of the people. The national values bind
all State and public officers and all persons whenever they make or
implement public policy decisions and whenever they apply or interpret
the Constitution or any other law (Article 10 (1)). The individual, the
family, educational institutions, religious or faith based organizations,
the private sector, professional associations, the media and civil society
and political parties must understand, internalize, apply, embody and
publicize the national values and principles of governance.
Some of the national values and principles espoused in the Constitution
include:
1.9.1. Patriotism
Patriotism is love, loyalty and devotion shown to ones country. It
calls for ones support for their nation despite its existing challenges.
Patriotism encourages service to our country and calls on all of us to
be proud of our Kenyan identity and to carry out deeds that advance
the collective interests of our country. The Constitution requires every
person to respect, uphold and defend this Constitution (Article 3). This
duty calls upon all Kenyans to be patriotic and loyal to the Constitution.
1.9.2.
National Unity
National unity represents the deliberate decision to work in concert with
others in pursuit of common goals. It is an intentional willingness to
allow what binds people together to take priority over what sets them
apart. To achieve the goals enshrined in the Constitution, Vision 2030
12
and other national priorities, there is need for all Kenyan citizens to
work together towards realizing peace and stability.
1.9.3.
Sharing and Devolution of Power
Power sharing refers to a political arrangement in which opposing
groups in a society all participate in government. On the other hand,
devolution is the transfer of powers from the central government to local
units. These tenets are encouraged in the Constitution to ensure that
all people participate in governance at various levels.
1.9.4.
The Rule of Law
As discussed earlier (para 1.8.5), the rule of law is a legal principle that
States no person is above the law and that everyone should be equal
before the law, have equal access to the law and equal benefit from the
protection of the law. The rule of law is about every one submitting to
obeying and be regulated by law and not arbitrary action by an individual
or a group of individuals.
1.9.5. Democracy
Democracy is a system in which all citizens exercise direct and equal
participation in running the affairs of their country. Participation is
the practice of involving all people of all abilities in making decisions
which ensures mutual respect and encourages shared responsibilities.
Based on this principle leaders and representatives of the people should
always bear in mind the interests of their constituents and should make
decisions that are responsive to them. Democracy is largely practised
through the conduct of regular elections that are managed in a free and
fair manner.
1.9.6.
Human Dignity
Dignity is a term used to signify that a human being has an inborn right
to respect and ethical treatment.
Human dignity requires that all
humans to be treated with love and
ion requires
The Constitut
hold
respect simply because they are
to respect, up
every person
n
is Constitutio
humans and regardless of class,
and defend th
on
is duty calls up
race, gender, nationality, culture,
(Article 3). Th
d
be patriotic an
sex, education, religion or any other
all Kenyans to
n.
io
stitut
loyal to the Con
distinctions.
13
1.9.7.
Human Rights
Human rights are God given entitlements to all men and women.
They entitle men and women to live in dignity and promote human
development. They are undeniable by any government and belong to
everyone irrespective of age, economic status or belief. These rights are
all interrelated, interdependent and indivisible.
1.9.8.
Equality and Equity
Equality is a social State of affairs in which all people within a specific
society, have the same status in a certain respect. Equality implies
absence of social class or caste boundaries. It ensures that there is
no unjustified discrimination motivated by a persons identity or other
considerations such as gender, age, income or property, language,
religion, health or disability among others.
Equity is about fairness, impartiality and justice. It is the quality of being
impartial, reasonable and fair in all our decisions and actions. Equity is
founded on principles of natural justice and fair conduct. Equity rejects
bias, favouritism, and unjustified preference.
1.9.9.
Social Justice and Inclusiveness
Social justice refers to the idea of creating a society that is based on
the principles of equality and solidarity, that understands and values
human rights, and also that recognizes the dignity of every human being.
Social justice is based on the idea of a society which gives individuals
and groups fair treatment and a just share of the benefits of society.
Inclusiveness is a practice that encourages people to feel respected,
valued and encourages ones sense of belonging. The process of
inclusiveness engages each individual and makes people feel valued.
Where there is inclusiveness, individuals function at full capacity and
equally feel included in the general mission of their country.
1.9.10. Non-discrimination and Protection of the Marginalized
Non-discrimination refers to fairness in treating people without prejudice
irrespective of their gender, ethnic, class, religious, race, geographical or
even generational differences.
Marginalization is the social process of becoming or being relegated or
confined to a lower social standing. It refers to being separated from
the rest of the society. Marginalized people are usually the vulnerable
14
members of the society such as children, persons with disabilities, youth,

minorities and older members of the society. The Constitution provides
for their protecting and provides that they should not be subjected to
any formal discrimination.
1.9.11. Good Governance, Transparency and Accountability
Good governance requires that public institutions conduct public affairs
and manage public resources in a manner that guarantees the realization
of human rights and efficient service delivery.
The Constitution
encourages the practise of good governance by all persons including
State and public officers.
Transparency is associated with openness and conditions accompanied
by availability of full information required for collaboration, cooperation,
and collective decision-making. All actions undertaken by State organs
and their officers should be conducted in an open manner that allows
for all to understand the implementation or decision making process.
Public accountability on the other hand means that persons/authorities
entrusted with public resources report accurately on the management of
such resources. The Constitution has provided various mechanisms and
institutions that promote public accountability.
1.9.12. Integrity
Integrity is the strength and firmness of character. It provides the
will to refuse to engage in behaviour that is dishonourable or morally
questionable. Integrity calls for transparency and accountability in the
conduct of our affairs.
1.9.13. Sustainable Development.
Sustainable development refers to a pattern of resource use that aims
to meet human needs while preserving the environment so that these
needs can be met not only in the present, but also for generations to
come. It is development that meets the needs of the present without
compromising the ability of future generations to meet their own needs.
1.10. Implementing National Values and Principles of Governance

The Constitution requires the President to report to Parliament on all
the measures taken and progress achieved in the realization of National
Values (Article 132 (c) (i)). This means that the citizens of Kenya hold
the President accountable for implementation of national values at a
national level. However, the implementation of national values and
15
principles of governance is a collective responsibility. Many actors

including the private sector, civil society, educational institutions, family,
government, media, political parties, professional associations, religious
and faith-based organizations all have a collective and paramount role
of transforming our normative system. In this regard:a)
b)
c)
d)
e)
f)
g)
h)
i)
we should promote role modeling and leadership competencies

that demonstrate the realization of national values at family,
community, organizational, county and national levels. Parents
and other persons in authority must embrace the national
values and act as role models;
the government, private sector, civil society and faith based
organizations should establish systems, structures, policies,
programmes and guidelines that promote and integrate national
values and principles of governance through the cycle of
planning, implementing, monitoring and corrective action;
the government together with non State actors may institute a
citizen service delivery charter in line with the national values and
principles of governance that encourages citizens participation
in the promotion of national values;
all institutions should establish continuous training, awareness
and dissemination programs on the national values and
principles of governance in a language understood by its staff,
key stakeholders and its customers;
all State and non State organizations should develop internal
codes of conduct and ethics to give further effect to the national
values and principles of governance;
the government should establish systems and mechanisms to
hold State officers accountable for compliance with the national
values and principles of governance
all public and private institutions should integrate national
values and principles of governance in their performance
contracting and assign a significant weight to underscore their
importance;
all institutions should institute mechanisms for recognizing,
honoring, rewarding and celebrating outstanding achievements
on national values and principles of governance;
all institutions should enforce national values and principles of
governance in the event of alleged violation or actual violation,
through disciplinary, civil or criminal action as provided for in
the Constitution and legislation;
16
j)
all public and private institutions should establish an internal

national values and principles of governance committee that
shall be responsible for integrating, monitoring and evaluation
mechanisms for annual and periodic reporting;
k) all officers in State and non State institutions should integrate
clauses that commit to uphold the Constitution and discharge
of functions according to national values and principles of
governance;
l)
review regulations and codes of conduct and ethics; and
m) establish systems and mechanisms to hold members of various
professions associations accountable for compliance with the
national values and principles of governance.
1.11. National Symbols

The national symbols seek to unite people and instill a sense of identity
and belonging. The national symbols acknowledged in the Constitution
are:
1.11.1. The National Flag
The national flag represents the symbol our nationhood, our identity,
our countrys history and future. The flag truly demonstrates Kenyas
national unity and reflects the historical events that shaped the country.
It was adopted on Independence Day, December 12, 1963. The flag has
four colours namely:
Black - represents the indigenous
Kenyan people;
Red - represents the blood that was
shed in the fight for independence;
Green - Kenyas rich agricultural land
and natural resources;
White - symbolizes peace; and
Shield and spear - signify that all Kenyans are always ready to
defend the independence they fought so hard for.
1.11.2. The National Anthem
A national anthem is an official national and patriotic musical composition
of a country that evokes and praises the history, traditions, values and
struggles of its people. The Kenyan national anthem was composed to
show respect to our motherland and to the patriots who lead efforts
of resistance against British colonizers. The tune was derived from a
17
traditional Pokomo lullaby and was

tional
The Kenyan na
originally composed in Kiswahili, the
ow
se
mpo d to sh
anthem was co
d
an
d
national language.
an
rl
mothe
respect to our
s
rt
fo
ef
ad
The national anthem evokes a deep
who le
to the patriots
h
tis
ri
B
t
agains
sense of patriotism among Kenyans as it
of resistance
ni
lo
co zers.
is commonly played during international
events.
Within Kenya, the national
anthem is played during national
holidays and during other important or historical events. This reinforces
the anthems role as a symbol of Kenyas national unity.
Through the national anthem, the people of Kenya seek special prayers
and blessings from God, the creator, to protect the land of Kenya from
any foreign attack. The song emphases unity, peace and liberty not only
within the country but also with the neighboring countries and it forms
an essential part of Kenyas identity.
1.11.3. The Coat of Arms
The coat of arms of Kenya has two lions, holding
spears and a traditional shield. The lions are a
symbol of protection; while the shield and spears
symbolize unity and defence of freedom. The shield
contains the national colors. The middle red strip
of a spear bears a rooster jogoo holding an axe,
which represents a new and prosperous life. The
shield and lions stand on a profile of Mount Kenya
containing in the foreground examples of Kenya
agricultural produce: coffee, pyrethrum, sisal, tea, maize and pineapples.
The coat of arms is supported by a scroll upon which is written the word
Harambee which in Swahili means pulling together or all for one.
These words echo that collective effort should be made for the common
good, such as helping a family in need, or the construction of school or
church.
1.11.4. The Public Seal
The public seal represents government authority.
It proves that public acts, decrees and judgments,
exemplified under the seal, are received as true and
genuine and that they embody the governments
authority.
18
1.11.5. National Days

The national days (public holidays) are:
1. Madaraka Day (1st June)
This day commemorates the day

Kenya attained internal self rule;
2. Mashujaa Day (20th October) It is celebrated to honour men and

women who have made lasting
marks in Kenyas history; and
3. Jamhuri Day (12th December)
Jamuhuri or Republic is a
day when Kenyans celebrate
the
establishment
of
the
Kenyan republic after attaining
independence.
1.11.6 Language
The national language is Kiswahili and the official languages are
Kiswahili and English. The Constitution requires the State to promote
the development of sign language, braille and other methods of
communication accessible to persons with disabilities. This will facilitate
participation by this category of persons who have not been able to
previously participate fully in national building.
1.12 The Republic

Kenya is a sovereign Republic (Article 4). Republic is used to mean
leadership by peoples representatives in accordance with the law as
opposed to arbitrary leadership by a dictator or a hereditary leader. In a
republic, citizens have opportunity to choose their representatives. The
citizens have the corresponding responsibility to choose and submit to
their legitimate leaders and institutions and participate in governance
process. Leaders and institutions are required to serve in accordance
with the Constitution and the law.
The Republic of Kenya is also a multi-party democratic State (Article 4
(2)). This means that Kenyans have the fundamental right to form or join
any political party and that they have the freedom to associate freely for
the purposes of advancing their political ideas within an environment of
free and fair competition.
19
The Constitution divides the territory of Kenya into forty seven (47)
counties and devolves government power to the national and county level
(Article 6). The two levels are distinct, interdependent and are required
to relate on the basis of consultation and cooperation. This means that
each level of government is autonomous and distinct with independent
powers and responsibilities. However these levels of government mutually
rely on each other for the execution of their mandate, to adequately
respond to the needs of citizens and to address any challenges that arise
in governance.
Recap of the module:
By going through this module the trainer is expected to:1. All State authority is derived from the people of Kenya. Any misuse
of such authority or power is illegal;
2. No other law is equal in rank or superior to the Constitution;
3. Every person has a duty to protect and defend the Constitution;
4. National language, the national anthem and national symbols
create opportunities for national cohesion and unity;
5. The State is required to promote the development of communication
that is accessible for persons with disabilities such as braille and
sign language; and
6. National Values and Principles of Governance are the foundation
which binds all persons, State organs, State officers and public
officers whenever that apply or implement policy decisions and the
Constitution.
Reference:
Chapter 1
Chapter 2
Chapter 9
20
MODULE 2:
Kenya
Kenya National
National Integrated
Integrated Civic
Civic Education
Education
Citizenship
My Kenya, Our Kenya
21
2.1 Introduction
This module gives a broad description of citizenship and the rights and
responsibilities of a citizen. It emphasises the importance of responsible
citizenship and the manner in which it is exercised.
2.2 Overview of Outcomes

This module is intended to create an understanding of the following:a) The meaning of citizen and citizenship;
b) Ways of acquiring and losing Kenyan citizenship;
c) The concept of dual citizenship;
d) The rights and obligations of a citizen; and
e) The importance of responsible citizenship.
2.3 What is Citizenship

Citizenship is membership to a country that provides the individual with
a distinct identity. Citizenship relates to a country one belongs to and it
gives rise to certain rights and obligations. The citizen is entitled to the
rights, privileges and benefits enjoyed in common with other individuals
(citizens) in the country. The enjoyment of a citizens right is subject to
the limits permitted by the Constitution. The individual (citizen) in turn,
is expected to carry out his or her duties and obligations to the country.
2.4 Who is a Citizen

A citizen is a person who by birth, nationality of one or both parents, or
by going through a registration process has loyalty to a country and is
entitled to reciprocal protection by the government or State.
2.5 How Does One Become a Kenyan Citizen

The Constitution provides several ways of becoming a citizen of Kenya.
These are by: Retention (Article 13): Every person who was a citizen
immediately before August 27th 2010 maintains or retains that
citizenship;
By birth (Article 14): This applies to
22
Persons born of either a Kenyan citizen mother or father

whether before or after August 27th 2010. The former
Constitution allowed only fathers to pass citizenship to their
children and mothers had no capacity to pass citizenship to
their children;
A child found in Kenya, who appears to be less than 8 years
and whose nationality and parents are not known. This
may be revoked if it is established that the citizenship was
acquired wrongly; and
Upon application, Kenyan citizens by birth who lost their
Kenyan citizenship by reason of having taken the citizenship
of another country.
By registration (Article 15): This applies to: A person who has been married to a citizen for at least 7
years;
A resident legally in Kenya for a continuous period of 7 years;
and
A child who is not a citizen by birth but is adopted by a
Kenyan citizen.
Parliament enacted the Kenya Citizenship and Immigration Act,
2011 to provide for matters relating to citizenship and immigration
controls. Parliament further enacted the Kenya Citizens and Foreign
Nationals Management Service Act, 2011 to provide for the creation and
maintenance of a national population register and the administration
of the laws relating to births and deaths, identification and registration
of citizens, immigration and refugees and administration of the laws
relating to marriages.
2.6 Ways of Losing Kenyan Citizenship

The Constitution provides that citizenship that has been obtained by
registration may be cancelled if (Article 17):
the registration is found to have been acquired dishonestly; or
the person assisted an enemy in a war in which Kenya was
engaged in; or
has been convicted of an offence within 5 years and been
sentenced to a term of at least 3 years; or
has been convicted of treason.
23
2.7 The Concept of Dual Citizenship or Nationality

Dual citizenship or nationality means that a person is a citizen of two
or more countries at the same time. In the former Constitution any
citizen who acquired the citizenship of another country automatically
lost his/her Kenyan citizenship. The Constitution now provides that
a citizen by birth does not lose citizenship by acquiring citizenship of
another country (Article 16). Consequently, a Kenyan citizen will retain
his or her Kenyan citizenship after acquiring the citizenship of another
country. Through dual citizenship, the world becomes more connected.
Dual citizenship offers benefits to those who are able to take advantage
of it. Some of the benefits are:
1. access to educational benefits including higher education;
2. the ability of dual citizens to influence economic and political
decisions in their host countries in favour of their countries of
birth and descent;
3. the ability to own property without restrictions; and
4. the opportunity to foster trade and investment.
2.8 Rights and Obligations of a Citizen

Every citizen is entitled to enjoy certain rights, privileges and benefits by
virtue of his or her status. These rights and benefits are not unlimited,
but are subject to limitations allowed by the Constitution or any other
written law. These rights include:

the right to enter, exit, remain in and reside anywhere in Kenya;

the right to be registered as a voter without unlawful restriction;
the right to participate in free, fair and regular elections;
the right to vote and vie for any elective body or office established
by law;
the right to vote and vie for any office of any political party of
which the citizen is a member;
the right to vote in any referendum;
the right to own land and other property in any part of the
country, in accordance with the law;
the right to be appointed to a public office subject to the
Constitution and other relevant laws;
the right to vie for any elective office as President or Deputy
President subject to the Constitution; and
24
the entitlement to any document of registration or identification

issued by the State to citizens including:
i.
ii.
iii.
iv.
v.
a
a
a
a
a
birth certificate;
certificate of registration;
passport;
national identification card; and
voters card, where applicable.
The enjoyment of the rights of a citizen

should be understood from the basis
is entitled
Every citizen
ges
that:-
n rights, privile
to enjoy certai
her
or
s
virtue of hi
1. all citizens are free and equal
and benefits by
fi
ne ts
rights and be
in rights subject to limitations
status. These
ited
are not unlim
allowed by law. The exercise of
citizens rights has restrictions
determined by law;
2. the principle of sovereignty of the people resides collectively;
and
3. a citizens liberty resides in the freedom to do everything which
injures no one else and encourages the enjoyment of the same
rights by other citizens.
2.9 Obligations and Responsibilities of Citizenship

The duties of a citizen include the responsibility to:

25
owe full allegiance to the State and the Constitution of Kenya;

obey the laws of Kenya;
pay taxes as provided for under the laws of Kenya;
protect and conserve the environment and ensure ecologically
sustainable development and use of natural resources;
cooperate with State organs and others to ensure enforcement of
the law;
respect and promote the dignity and rights of other persons;
respect and promote national integration and unity, peaceful
co-existence; and
promote the values and principles prescribed in the Constitution
2.10 The Importance of Responsible Citizenship

Citizenship comes with responsibilities. It requires citizens to act and
engage in actions that benefit their country and for common good. Citizens
must cultivate cooperation among themselves and between themselves
and the government. Responsible citizenship therefore guarantees that:i.
they will work with their fellow citizens regardless of existing

differences. This requires citizens to protect the rights of their
fellow citizens;
ii. citizens engage and participate in their countrys governance
processes;
iii. citizens vote wisely and that they are not influenced through
bribery;
iv. citizens remain vigilant to ensure that the countrys policies
and processes are implemented in a responsible manner;
v. citizens abide faithfully to the laws of the land; and
vi. citizens participate in consultations and decision making
processes of their locality and in all matters affecting their
lives. All opportunities for public participation must be seized.
Recap of the Module:
By going through this module, the trainer is expected to:1. Explain citizen and citizenship;
2. Outline the methods of acquiring and losing Kenyan citizenship;
3. Define concept of dual citizenship;
4. Outline the rights and obligations of a citizen; and
5. Highlight the importance of responsible citizens.
Reference:
Chapter 3
The Kenya Citizenship and Immigration Act, 2011
The Kenya Citizens and Foreign Nationals Management
Service Act, 2011
26
MODULE 3:
Bill of Rights
Rights and Responsibilities go Hand in Hand
27
3.1 Introduction
The Constitution provides for an elaborate and advanced bill of rights.
Compared to the former Constitution, the bill of rights is more progressive
and for the first time recognizes and protects social, economic and
cultural rights as well as group rights. It has elaborate provisions for
the protection of minorities, marginalized persons and communities
and it provides for affirmative action for the youth, women and the
marginalized.
This module highlights the context and development of human rights.
It emphasises the constitutional provisions for the protection of
human rights and the role of various actors in protecting the bill of
rights guaranteed in the Constitution. The module further outlines the
international human rights instruments which form the corner stone of
fundamental rights and freedoms. Human rights should be understood
and evaluated by the extent to which they promote good governance and
support development.

This module is intended to create an understanding of the following:a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)
l)
The meaning of human rights;

The characteristics of human rights;
The importance of human rights;
The historical development of human rights;
The classification of human rights;
International human rights instruments;
The bill of rights and the Kenyan Constitution;
The application, implementation and enforcement of rights;
The role of the individual and the State;
Limitation of the bill of rights;
Role of the courts; and
The role of Human Rights Commissions
3.3 The Meaning of Human Rights

Human rights are universal legal guarantees protecting individuals and
groups against actions which interfere with fundamental freedoms and
human dignity. Human rights oblige Governments to do some things
28
and prevent them from doing others. Consequently, Individual rights

and fundamental freedoms are universal entitlements of human beings
and are, part and parcel of the individual self. The purpose of recognising
and protecting human rights and fundamental freedoms is to preserve
the dignity of individuals and communities and to promote fairness and
the realisation of the potential of all human beings.
3.4 The Characteristics of Human Rights

Human rights deal with the relationship among people, between people
and the society and people and nature. Human rights possess the
following characteristics:i.
ii.
iii.
iv.
v.
vi.
vii.
they
they
they
they
they
they
they
are universal and are recognized internationally;

are legally protected;
focus on the dignity of the human being;
protect individuals and groups;
obligate States and State actors;
cannot be waived or taken away; and
are equal and interdependent;
3.5 Importance of Human Rights

As previously observed, rights belong to individuals, are attained at birth
and are not granted by the State. Human rights are entitlements that
human beings have. The purpose of recognising and protecting human
rights and fundamental freedoms is to: preserve the dignity of individuals and communities;
promote social justice;
allow for the realisation of the potential of all human beings;
emphasise the duty of the State and every State organ and
State officers (together sometimes referred to as duty bearers) to
observe, respect, protect and promote fundamental freedom and
individual rights; and
protect every persons right to start court proceedings when
a right or fundamental freedom has been denied, violated or
infringed, or is threatened.
3.6 The Historical Development of Human Rights

The rise and justification of human rights as a form of legal entitlement
29
can be traced to the doctrine of natural law, which asserts that individuals
possess natural rights and that the government has a role to ensure the
protection and promotion of individual rights. The full codification and
declaration of human rights occurred on 10th December 1948, when the
United Nations (UN) adopted the Universal Declaration of Human Rights
(UDHR) in response to atrocious violations of human rights during the
Second World War. This documentation of human rights was intended
to prevent any such occurrence in future.
Subsequent to the UDHR and to ensure better legal standing the UN
developed subsequent international human rights treaties addressing
human rights issues. The provisions of these treaties have been adopted
and entrenched in many countries Constitutions and laws globally.
3.7 The Classification of Human Rights

There are three categories or generations of human rights, namely:1. civil and political rights (first generation rights);
2. social, economic and cultural rights (second generation rights);
and
3. collective or group rights (third generation rights)

Table 2: Classification of rights

Civil and political
rights (1st generation
rights)
Social, economic and

cultural rights (2nd
generation rights)
Collective or
group rights (3rd
generation rights)
This group constitutes

the oldest generation
of human rights. It
consists of natural
rights to life, liberty
and property. These
rights set limits to
the jurisdiction of the
government.
This group came

to being during the
struggle against
economic inequality.
These rights seek to
protect the well-being
of the population.
The latter
generation of
rights seek to
protect the rights
of minorities,
the right to
development
and the right
to a favourable
environment.
30
These rights provide

minimum safety for
security and physical
protection of the person
and their property
within a society.
These rights provide

minimum protection
for social safety of the
person.
These rights
are associated
with the right
to national selfdetermination, a
clean environment
and the rights of
minorities.
They also include

personal rights and
the right to political
participation such as
freedom of speech,
protection of private
life, freedom of religion,
the right to a fair trial,
the right to personal
freedom and safety.
Includes the right

to health services,
the right to social
security, the right to
a decent standard
of living, freedom of
employment, rights to
welfare, education and
housing.
Includes the right

to development,
ecological
rights, the rights of
Indigenous
peoples.
3.8 International Human Rights Instruments

The Constitution provides that any treaty or convention ratified by
Kenya shall form part of the law of Kenya (Article 2(6)). This provision is
significant to the development and implementation of the human rights
regime in Kenya. At the regional and global level, human rights are
codified through regional and international instruments that are legally
binding on States which are parties to them. International Declarations,
recommendations, bodies of principles, codes of conduct and guidelines
also embody human rights standards. Some of these treaties include:i. The International Covenant on Civil and Political Rights (ICCPR,
1976). The ICCPR has two Optional Protocols: 1st Optional Protocol to the ICCPR allowing individuals to
report personal human rights violations (1976); and
2nd Optional Protocol to the ICCPR calling for the abolition
of the death penalty (1991);
ii. The International Covenant on Economic, Social and Cultural
Rights (ICESCR, 1976). It has one Optional Protocol: Optional Protocol to the ICESCR allowing for individuals
to report human rights violations with regard to Economic
Social Cultural (ESC) rights.
31
Treaties that focus on particular types of violations include:i. The Convention on the Prevention and Punishment of the Crime
of Genocide (1951);
ii. The International Convention on the Elimination of All Forms of
Racial Discrimination (CERD, 1969); and
iii. The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT, 1987).
Treaties that seek to protect particular groups include:i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
The Convention (and Protocol) relating to the Status of Refugees

((CSR, 1954),
The Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW 1981);
The Convention on the Rights of the Child (CRC 1990);
The UN Declaration on Rights of Older Persons (1991);
The Rome Statute of the International Criminal Court (ICC
Statute, 2002);
The International Convention on the Protection of the Rights of
All Migrant Workers and Members of their Families (CPRMW
Migrant Workers Convention, 2003);
The UN Declaration on Rights of Indigenous Peoples (2007);
Convention on the Rights of Persons with Disabilities (CRPD,
2008); and
International Convention for the Protection of All Persons from
Enforced Disappearance (2010).
3.9 Regional (African) Human Rights Instruments

The African human rights system is considered one of the youngest
regional system. One of the most distinctive features of this system is
its recognition of collective rights, laying special emphasis on the rights
and duties of children, the family, the community, the society and the
nation. In the African context the individual and the society are linked.
It also recognizes third generation rights, mainly the rights to peace,
solidarity, a healthy environment and development. The regional human
rights instruments are:
i.
The African Charter on Human and Peoples Rights (African

Charter ACHPR, 1986);
32
ii.
The African Charter on the Rights and Welfare of the Child

(African Child Charter ACRWC, 1999);
iii. The Protocol to the African Charter on Human and Peoples
Rights on the Rights of Women in Africa (African Womens
Protocol - ACRWA, 2005);
iv. The African Union Convention on Preventing and Combating
Corruption (2006);
v. The African Union Convention for Protection and Assistance of
Internally Displaced Persons in Africa (Kampala Convention
adopted in 2009); and
vi. The African Youth Charter (AYC, 2009).
The international and regional human rights treaties include a system of
periodic reporting by State parties. This requires States to submit reports
to a supervisory committee on progress in domestic implementation of
treaty obligations. This reports form a basis for a constructive dialogue
between a State and the responsible committee. Some human rights
treaties provide opportunities foran individual to complain to the
monitoring mechanism and also employ special procedures such as
special rapporteurs, special representatives, independent experts, and
working groups who investigate, discuss, and report to the Human
Rights Council and the United Nations General Assembly on specific
human rights issues.
3.10 The Bill of Rights in the Constitution of Kenya

The Constitution provides for a variety of fundamental individual rights
and freedoms. These rights:
belong to each individual and are not granted by the State;
include other rights and fundamental freedoms that are not
included in the Constitution but are recognized by law; and
are not limited except by law and only to the extent that the
limitation is reasonable and justifiable in order to ensure that the
enjoyment of rights and fundamental freedoms by any individual
does not prejudice the fundamental freedoms of others.
33
The rights and freedoms provided for in the Constitution are considered
in the table below:Table 3: Bill of rights
Fundamental Rights
and Freedom
Elements of the right
The right to life (Article

26)
This right: is inborn and its protection begins at

conception;
calls for legal protection of a person to
ensure that no one shall be arbitrarily
deprived of life; and
prohibits abortion unless the life and
health of the mother is in danger.
Equality and freedom

from discrimination
(Article 27)
provides for equality before the law;

provides that men and women have equal
rights and opportunities in political,
economic, cultural and social spheres; and
forbids direct or indirect discrimination by
the State or a person on any ground.
The right to human

dignity (Article 28)
this right seeks to ensure that an

individuals dignity is respected and
protected.
Freedom and security of

the person (Article 29)
It includes the right not to be: deprived of freedom without just cause;
detained without trial, except during a
State of emergency;
subjected to any form of violence from
either public or private sources;
subjected to torture in any manner;
subjected to corporal punishment; or
treated or punished in a cruel, inhuman or
degrading manner.
34
Fundamental Rights
and Freedom
Freedom from slavery,
servitude and forced
labour (Article 30)

it protects a person from performing forced
labour or being held in slavery.
Right to privacy (Article

31)
This freedom protects a person from: arbitrarily having their bodies or property
searched without a warrant;
personal information relating to a persons
private affair being released; and
violating a persons private communication.
Freedom of conscience,
religion, belief and
opinion (Article 32)
This freedom protects a persons: freedom of conscience and opinion; and

freedom of worship.
Freedom of expression
(Article 33)
This freedom protects a persons freedom to: search for or share information and ideas;
artistic creativity; and
academic and scientific research.
This freedom limits the right to: use propaganda that instigates conflict;
incitement;
engage in hate speech; and
engage in advocacy that incites ethnic
hatred.
Freedom of the media

(Article 34)
35
this freedom protects the independence

of the print and electronic media provided
that media practise responsible journalism
it also requires State media to be
impartial and to afford fair opportunity for
presentation of divergent views.
Fundamental Rights
and Freedom
Access to information
(Article 35)
It facilitates acquisition of information held

by the State and any other person required to
protect any right or fundamental freedom.
Freedom of association
and assembly (Article 36
and 37)
freedom of association protects the right to

form, join or participate in the affairs of any
association; and
freedom of assembly protects the right
to assemble, demonstrate, protest or to
present petitions
this freedom is only enjoyed as long as it is
exercised in a peaceable manner.
Political rights (Article

38)
This includes the freedom to: make political choices;

participate in free, fair and regular
elections; and
vote and offer oneself as candidate for
public office.
Freedom of movement
and residence (Article
39)
It protects the right to move, leave, remain and

reside anywhere in Kenya.
Protection of the right to

property (Article 40)
It protects the right to own property in any

part of Kenya;
It affirms that no person shall arbitrarily
deprive a person off property;
That land acquired by the State in good
faith shall be compensated; and
That the State shall promote intellectual
property in Kenya.
This right however does not protect property
that was acquired illegally.
36
Fundamental Rights
and Freedom
Labour relations (Article

41)
This right supports fair labour practices which

include:
reasonable salaries and wages;
suitable working conditions; and
the freedom to form, join or participate in a
trade union.
Employers also have a right to form and join
employers organisations.
Environment (Article 42) This right guarantees the right to a clean and
healthy environment and obligates the State
to take measures that facilitate environmental
protection.
Economic and social
rights (Article 43)
This includes the right to:

the highest standard of health;
accessible and adequate housing and
sanitation;
freedom from hunger;
clean and safe water;
social security; and
education.
Right to language and

culture of choice (Article
44)
This includes the right to enjoy ones culture,

language and to form cultural associations.
Recognition and
protection of the family
(Article 45)
It recognises family as a fundamental unit of

society and protects:
the right to marry a person of the opposite
sex; and
equal rights at the time of marriage,
during the marriage and at the end of the
marriage.
37
Fundamental Rights
and Freedom
Consumer rights (Article It protects the right of a consumer to:

46)
goods and services of reasonable quality
their health and safety;
receive compensation for loss and injury
arising from the use of goods and services.
Fair administrative action This includes:
(Article 47)
the right to written reasons where a citizen
has been or is likely to be adversely affected
by action taken by administrative bodies;
and
the right to administrative action that is
procedural, fair and efficient.
Access to justice (Article
48)
Rights of arrested
persons (Article 49)
This right imposes a duty on the State to ensure

that justice is affordable and reachable to all
persons.
Includes the right to:
be informed of the reasons for the arrest;
remain silent and communicate with
an advocate or any other person whose
assistance is necessary;
be presumed innocent till proved otherwise
in a public trial;
give sufficient time to prepare for their case;
be tried in person; and
appeal if found guilty.
The right, if held in

These persons are entitled to all the rights
custody or imprisonment and fundamental freedoms other than those
(Article 51)
incompatible with the fact that the person is
held in custody, or is imprisoned.
38
Fundamental Rights
and Freedom
Special rights for children A child has the right to:

(Article 53)
a name and nationality from birth;
compulsory basic education;
parental care and protection from both
mother and father equally;
protection from abuse, harmful cultural
practises and exploitative labour;
basic nutrition, shelter and health; and
the childs best interest is of paramount
importance in every matter that concerns
the child.
Special rights for persons These rights include:with disabilities (Article
being treated with dignity and respect;
54)
reasonable access to facilities;
reasonable access to transport and
information; and
use of appropriate means of communication
such as Braille and sign language.
The State will facilitate progressive
implementation on the basis of at least 5% of all
public elective and appointive bodies
are persons with disabilities
Special rights for
minorities and
marginalised groups
(Article 56)
39
It requires the State to put in place affirmative

action programmes that ensure marginalised
groups: participation and representation in
governance;
special opportunities in education and
economic fields;
access to employment; and
reasonable access to water, health services
and infrastructure.
Fundamental Rights
and Freedom
Special rights for youth

(Article 55)
This right requires the State to take measures

to ensure the youth:
access to relevant education and training;
access opportunities for association and
representation in political, economic and
social spheres of life;
access employment; and
are protected from harmful cultural
practises and exploitation.
Special rights for Older

members of society
(Article 57)
The State is required to take measures that

ensure older persons: fully participate in the affairs of society;
live in dignity and respect and free from
abuse; and
receive reasonable care and assistance from
their family and the State.
3.11 Limitation of Rights

Human rights may be enjoyed to the extent that they do not interfere
or conflict with the enjoyment of rights by others. These rights are not
unlimited but are subject to boundaries or restrictions that are guided
by law. The Constitution provides that any limitation of a fundamental
right shall be limited only by law and to the extent that the limitation is
justifiable and rational. However, the Constitution provides for a special
category of rights that cannot be limited. These are:
freedom from torture and cruel, inhuman or degrading treatment
or punishment
freedom from slavery or bondage
the right to a fair trial
the right to an order of habeas corpus
3.11.1 The Right to a Fair Trial a Limitation of Rights
The Constitution declares individual rights but also recognizes that as
individuals, we have accepted a collective Kenyan society and therefore
our rights must operate in a manner that is consistent with nation
building and civil relations.
40
Limitations on human rights are based on the recognition that rights are
a collective expression of what a society is unwilling to compromise and
positively protect. It is also a recognition that rights are related and can
only be effectively protected by ensuring consistency with other rights
and the benefits of being in a nation. Limitation on human rights should
therefore be seen as part and parcel of our civil State.
The Constitution proceeds from a position of general protection, and
allows limitation only on exceptional circumstances (Article 24). The
exceptional circumstances are that the limitation must be expressed
in a law and must be reasonable in an open democratic society. What
is reasonable or justifiable is judged in accordance with the principle
of proportionality. However, there are some instances where the
Constitution specifically qualifies a right. For instance provisions on
equality must take into account that the right to expression does not
extend to propaganda for war; incitement to violence; hate speech; or
advocacy of hatred and that specific rights relating to Kenya Defence
Forces or National Police Service are also restricted (Article 25(5)).
3.11.2 The Limitation must be Reasonable and Justifiable in an
Open and Democratic Society (Article 24)
This principle recognizes that the rights are protected within the
framework of a collective society. And the fundamental description of
our society is that it is open and democratic based on human dignity,
equality and freedom. Therefore, limitations are only an exception, they
should not be outrageous. They can only be justified if they serve a
purpose that is necessary to sustain our society. An open and democratic
society is assumed to have a collective sense of fairness, justice and the
rule of law. It must be proportional to the purpose, taking into account
specific factors including:
the nature of the right or fundamental freedom;
the importance of the purpose of the limitation;
the nature and extent of the limitation;
the need to ensure that the enjoyment of rights and fundamental
freedoms by any individual does not prejudice the rights and
fundamental freedoms of others; and
the relation between the limitation and its purpose and whether
there are less restrictive means to achieve the purpose.
41
3.11.3 Strict Interpretation of Limitations

Since restrictions to rights are
considered exceptions to the
,
For instance
general rule of full protection, the
vides that - a
ro
p
rivacy
p
to
t
h
g
ri
e
th
courts are required to interpret
ave: their
right not to h
e
th
s
a
h
n
perso
ed; their
them strictly. This means that the
perty search
ro
p
r
o
e
m
o
h
lating to
person,
restriction must precisely meet the
formation re
in
;
ed
iz
se
s
rily
possession
s unnecessa
criteria. Since limitation must be
private affair
r
o
y
eir
il
th
m
f
fa
o
r
thei
vacy
led; or the pri
a
ve
expressed in a law, the law must:
re
r
o
u
o
,
ed
ever r
requir
fringed. How
in
n
o
ti
a
ic
n
u
specifically
express
the
als are
comm
es that crimin
ir
u
q
re
o
ls
a
e. The
intention to limit that right
civil State
ctims of crim
vi
e
ic
st
ju
d
punished an
w providing
or freedom;
ore make a la
ef
er
th
n
ca
state
ht to privacy
indicate the nature and
when the rig
s
ce
n
a
st
m
u
limitation
for circ
operate, such
extent of the limitation;
To
.
ed
ct
ri
st
may be re
ality
e proportion
the provision must be clear
must meet th
criteria.
about the right or freedom
to be limited and the nature
and extent of the limitation;
and
not limit the right or fundamental freedom so as to derogate from
its core or essential content.
3.11.4 Burden of Proof is on the State
Where a right has been restricted and there is a question in court as
to whether it is proportionate, it is the State to explain if it meets the
criteria (which is discussed elsewhere in this publication).
3.11.5 Rights Which May Not be Limited
The following rights cannot be restricted (Article 25)
a) freedom from torture and cruel, inhuman or degrading treatment
or punishment;
b) freedom from slavery or servitude;
c) right to fair trial; and
d) the right to an order of habeas corpus.

3.12 Application of the Bill of Rights
The Bill of Rights applies to all law and binds all State organs and all
persons. All institutions, State corporations, government agencies and
departments, multinational corporations, private sector, individuals and
families are obligated to respect, value, uphold and observe all the bill
of rights contained in the Constitution. This means that the duty to
42
uphold, respect and protect fundamental rights does not only vest in the
State but to all persons. Everyone must ensure that they do not interfere
with the rights of others as they enjoy their rights.
3.13 Role of the State in the Application of Rights

The State is required to observe, respect, protect, promote and fulfil the
rights and fundamental freedoms in the Bill of Rights. All its functions
should be geared towards applying the human rights based approach to
planning and implementation of State programmes. In fulfilling these
obligations the State has a duty to:
1. facilitate measures that improve efficient access to services.
In this context the State should ensure that it undertakes
proactive actions that assist in the realization of rights such as
the translation of policy documents in to braille, ensuring that
services, operations and infrastructure offered by ministries
and government departments are accessible to all including
persons with disabilities and to ensure that all their activities and
programmes protect and promote human rights. This is referred
to as human rights approach to planning and implementation.
2. set up procedures that inform people of their rights and how
they can claim their rights. The State is considered to be the
duty holder who should facilitate citizens protection of rights.
Informing the citizens of their rights therefore strengthens the
protective role of the State.
3. provide social protection for the vulnerable groups- this is
achieved through putting in place affirmative action policies that
seek to address historical marginalization.
While social and economic rights are guaranteed in the Constitution,
it is recognised that the State might not have resources to fulfil them.
The State is, however, required to progressively or gradually allocate
resources towards the realization of these rights. The State must
demonstrate compliance with the bill of rights by putting in place
essential programmes, policies and laws that will facilitate the process of
development towards the realization of social economic rights. Through
targeted policy reform, access to social economic rights will improve over
time and progress to close inequality gaps.
43
3.14 Enforcement of Rights

Every person has the right to institute court proceedings against any
attempt to deny, violate, or threaten ones rights. Besides, a person may
act on behalf of another person or in the interest of the public. This
means that locus standi, which requires one to show that he or she has
an interest in a matter that is before the court, is not required for one to
file a case for the enforcement of fundamental rights and freedoms. To
enforce this provision, the Chief Justice is required to ensure that the
procedures for protecting ones rights before the court are simple, and
informal documents may be allowed in this regard. In addition, no fee
may be charged in commencing the proceedings.
3.15 The role of Human Rights Commissions

The Constitution establishes the Kenya National Human Rights and
Equality Commission to promote respect for human rights, gender
equality and promote the protection and observance of human rights
in public and private institutions (Article 59). The Constitution further
empowers Parliament to restructure the Human Rights Commission into
two or more separate commissions through the enactment of legislation.
Consequently Parliament enacted:
1.
2.
3.
The Kenya National Commission on Human Rights Act;

National Gender and Equality Commission Act; and
The Commission on Administrative Justice Act
3.16 The Kenya National Commission on Human Rights Act

This Legislation Act restructures the Kenya National Human Rights
and Equality Commission to establish the Kenya National Commission
on Human Rights pursuant to Article 59(4) of the Constitution. The
functions of the Commission are to:
1. promote respect for human rights and develop a culture of human
rights;
2. promote the protection and observance of human rights in public
and private institutions;
3. monitor, investigate and report on the observance of human rights;
4. receive and investigate complaints about alleged abuses of human
rights;
5. investigate or research matter in respect of human rights, and
44
make recommendations to improve the functioning of State

organs;
6. ensure compliance with obligations under international and
regional treaties and conventions relating to human rights;
7. formulate, implement and oversee programmes intended to raise
public awareness of the rights and obligations of a citizen under
the Constitution;
8. work with the National Gender and Equality Commission and
the Commission on Administrative Justice to ensure efficiency,
effectiveness and complementarity in their activities and to
establish mechanisms for referrals and collaboration.
3.17 National Gender and Equality Commission Act

This Legislation Act establishes the National Gender and Equality
Commission as a successor to the Kenya National Human Rights and
Equality Commission pursuant to Article 59(4) of the Constitution. The
functions of the commission include to:
1. promote gender equality and freedom from discrimination;
2. monitor, facilitate and advise on the integration of the principles
of equality and freedom from discrimination in all national and
county policies, laws, and administrative regulations in all public
and private institutions;
3. act as the principal organ of the State in ensuring compliance
with all treaties and conventions ratified by Kenya relating to
issues of equality and freedom from discrimination and relating
to special interest groups including minorities and marginalized
persons, women, persons with disabilities, and children;
4. co-ordinate and facilitate mainstreaming of issues of gender
persons with disability and other marginalised groups in national
development and to advise the government on all aspects thereof;
5. monitor, facilitate and advise on the development of affirmative
action implementation policies as contemplated in the Constitution;
6. work with other relevant institutions in the development of
standards for the implementation of policies for the progressive
realization of the economic and social rights specified in Article 43
of the Constitution and other written laws;
7. co-ordinate and advise on public education programmes for the
creation of a culture of respect for the principles of equality and
freedom from discrimination.
45
3.18 The Commission on Administrative Justice Act

This Legislation restructures the Kenya National Human Rights and
Equality Commission to establish the Commission on Administrative
Justice pursuant to Article 59(4) of the Constitution. The functions of
the Commission are to:

1.
2.
3.
4.
5.
6.
7.
investigate any conduct in State affairs, or any act or omission

in public administration by any State organ, State or public
officer in National and County Governments that is improper;
investigate complaints of abuse of power, unfair treatment,
manifest injustice or unlawful, oppressive, unfair or unresponsive
official conduct within the public sector;
report to the National Assembly bi-annually on the complaints
investigated and the remedial action taken thereon;
inquire
into
allegations of maladministration, delay,
administrative
injustice,
discourtesy,
incompetence,
misbehavior, inefficiency or ineptitude within the public service;
facilitate the setting up of, and build complaint handling capacity
in, the sectors of public service, public offices and State organs;
work with different public institutions to promote alternative
dispute resolution methods in the resolution of complaints
relating to public administration;
promote public awareness of policies and administrative
procedures on matters relating to administrative justice.
46

By going through this module the trainer is expected to:1. Define human rights;
2. Explain the characteristics of human rights;
3. Highlight the importance of human rights;
4. Understand the historical development of human rights;
5. Outline the classification of human rights;
6. Outline the International human rights instruments;
7. Highlight the bill of rights and the Kenyan Constitution;
8. Assess the role of the individual and the State;
9. Outline the role of Human Rights Commissions
Reference:
Chapter 3
Chapter 4
The Kenya National Commission on Human Rights Act
National Gender and Equality Commission Act
The Commission on Administrative Justice Act
47
NOTES
48
MODULE 4:
Leadership, Ethics
and Integrity
Leadership Demands That Words and Deeds
Match
49
4.1 Introduction
This module highlights responsibilities of State officers. It gives the
objectives of vetting of public officers. It also highlights the role of
the Ethics and Anti-Corruption Commission in ensuring that there
is compliance by all public officers as required by Chapter Six of the
Constitution.
This module is intended to create an understanding of the following:1. a leader and leadership
2. integrity
3. qualities of good leadership
4. responsibility of leadership
5. ethics and financial probity of State officers
6. the importance of vetting of public officers
7. the role of the Ethics and Anti Corruption Commission
4.3 A Leader and Leadership
A leader is a person who guides others toward a common goal, not the
boss of the team but, instead, the person that is committed to facilitating
a team to realise its set objectives. Leadership presupposes the existence
of formal rules, which govern all interactions and the leader acts as the
custodian of these rules.
Leadership is a position of responsibility through which a person
influences, directs, or facilitates action and guides change. Most
fundamental, leadership is about service to the people. The need for
leadership arises from the fact that groups or as societies need to be
organized for smooth interaction and for the realization of certain goals.
There are several levels of leadership from the group institutional and
national; each with its own responsibilities. Regular consultations
between a leader and the people create an optimum environment for the
people to participate in governance and to make decisions that affect
them.
4.4 Meaning of Integrity
Integrity is a commitment to do the right for the right reason, regardless of
the circumstances. Integrity is one of the top attributes of a great leader. It
50
is a concept of consistency of actions and

values. Leading with integrity is one of the
n of
is a positio
Leadership
ha
great challenges of leadership. Integrity is
w
rough hic
onsibility th
p
s
or
re
,
ts
c
e
a positive attribute, a compliment that
uences, dir
person infl
e
id
gu s
suggests that a person is honest and
action and
facilitates
change
strong in character. A person of integrity
can be trusted because she or he never
veers from inner values, even when it
might be expeditious to do so. Leaders
with integrity ignore self-interest and personal gain, and reach out to
do the best for those they lead. They are constantly looking for ways to
lead, to take responsibility, and to do a better job as a leader.
4.5 Qualities of a Good Leader
4.5.1 A Good Leader Must Possess:
1. Integrity: This is the integration of outward actions and inner
values. This means that a leader must practise honest dealings,
have predictable reactions and well-controlled emotions as a sign
of integrity.
2. Dedication: This means spending whatever time or energy
necessary to accomplish the task at hand. A leader inspires
dedication through setting an excellent example and by doing
whatever it takes to complete the next step toward the vision.
3. Humility: A humble leader tries to elevate everyone. Leaders with
humility recognize that they are no better or worse than other
members of the team.
4. Openness: This means being able to listen to new ideas, even if
they do not conform to the usual way of thinking. Good leaders
are able to suspend judgment while listening to others ideas, as
well as accept new ways of doing things. Openness builds mutual
respect and trust between leaders and followers, and it also keeps
the team well supplied with new ideas that can further their vision.
5. Fairness: This means dealing with others consistently and justly.
A leader must check all the facts and hear everyone out before
passing judgment. He or she must avoid leaping to conclusions
based on incomplete evidence. When people feel they that are being
treated fairly, they reward a leader with loyalty and dedication.
6. Assertiveness: This is not the same as aggressiveness. Rather,
it is the ability to clearly state what one expects so that there will
be no misunderstanding. A leader must be assertive to get the
51
desired results. Along with assertiveness comes the responsibility

to clearly understand what followers expect from their leader.
7. Persistence: Good leaders are determined to attain their goals.
They know that reaching their destination can be filled with
problems. Notwithstanding, they see that the advantages of
attaining their goals are larger than their problems. This makes
them intensely persistent individuals.
4.5.2 Responsibility of Leadership
The Constitution lays a framework for responsibilities of leadership and
conduct of State officers. It categorises public servants into two, namely,
State officers and public officers (Article 260). State officers are:

The President
Deputy President
Cabinet Secretary
Member of Parliament
Judges and magistrates
Member of a commission
Auditor General
Controller of Budget
Attorney General
Governor and deputy
governor
Member of a county assembly
Member of the executive
committee of a county
government
Director of Public
Prosecutions
Secretary to the Cabinet

Principal Secretary
Chief of Kenya Defence Forces
Commander of a service of the
Kenya Defence Forces
Director General of the
National Intelligence Service
Inspector- General and Deputy
Inspectors- General of the
National Police Services and
An office established and
designated as a State office
by national legislation for
example the office of the
Registrar of Political Parties
established under the Political
Parties Act.
Public officers on the other hand are all public personnel drawing benefits
from public funds.
4.6 Responsibilities of Leadership
State officers are given the responsibility to serve the people and not
to rule them. This is a recognition that a State officer holds power and
authority in trust for the people and that the power and authority should
be used only for the benefit of the people and rather than oneself. The
Constitution underscores the fact that the authority assigned to State
52
officers is a public trust that must be used in a manner that shows

respect for the people, brings honour, dignity to, and promotes public
confidence in the office (Article 73). The Constitution further provides
for guiding principles of leadership and integrity. They include: selection that considers personal integrity, competence and
suitability, or election in free and fair elections. This introduces
the concept of vetting of persons to hold positions in leadership.
The vetting process ensures that competent persons of integrity
occupy these positions;
objective and impartial decision-making should guide a leader
when making decisions and should not be influenced by
nepotism, favourism, corrupt practice, or improper motives;
selfless service demonstrated by honesty in carrying out public
duties;
accountability to the public for decisions made and actions
taken; and
discipline and commitment in service to the people.
4.7 Conduct of State Officers
The Constitution adds that a State officers behaviour both in official
and private capacity is conducted in a manner that avoids any conflict
of interest between personal interests and public or official duties or
otherwise demeans the office (Article 75). The Constitution further
provides for the application of disciplinary procedures where a person
contravenes the constitutional provisions on financial probity and
restricted activities for a State officer. Such disciplinary action may lead
to dismissal or removal from office.
4.8 Financial Probity of State Officers
State officers hold their positions in trust for the people of Kenya. Some
of the responsibilities of these State officers involve managing huge
resources that belong to the public
and they should therefore conduct
cer holds
themselves in a manner that promotes
a state offi
trust for
authority in
d
n
a
r
e
accountability and efficiency. The
w
o
p
power
d that that
n
a
le
p
o
e
p
the
sed
Constitution therefore restricts State
hould be u
authority s
d
n
a
eople
p
e
officers from (Article 77):benefit of th
nly for the
lf
o
e
retaining gifts or donations
than ones
and rather
given to them in their official
53
capacity unless the law allows;

maintaining a bank account outside Kenya unless permitted by
law;
seeking or accept a personal loan or benefit that compromises
their integrity;
participating in any other gainful employment when they are
serving as full time State officers;
holding office in a political party; and
holding more than two positions at the same time in State organs
or companies owned or controlled by the State if at the time the
State officers are receiving a pension from public funds
4.9 The Importance of Vetting of Public Officers
Vetting is the process of assessing integrity to determine the suitability
for public employment. Integrity in this context refers to a persons
adherence to standards of ethics and professional conducts. There are
several objectives of vetting including to: transform public bodies involved in serious office abuses make
them enjoy public trust and legitimacy again;
ensure that those individuals occupying public service jobs
qualify and those not qualified vacate office;
have those who have been involved in abuse of office, human rights
and corruption removed from public bodies and institutions;
ensure that institutions especially in Judiciary and security
sector provide criminal accountability of past abuses; and
bring an end to impunity by ensuring that those involved in
abuse of power do not continue to enjoy the privileges of public
office.
4.10 The Role of the Ethics and Anti Corruption Commission
One of the key functions of this Commission is to ensure that there
is compliance by all public officers as required by Chapter Six of the
Constitution.
For the demands to be met there is need to: enact legislation on enforcement of professional standards;
develop and enforce codes of conduct and ethics for various
categories of State officers;
implement mechanisms to ensure accountability, transparency,
54
responsibility, uniformity, and responsiveness by State Officers;

conduct lifestyle audits for State Officers;
implement transparent and effective conflict-of-interest
guidelines for State Officers;
enter into Integrity pacts at the personal and institutional levels;
operationalize information disclosure mechanisms in State
offices;
institute civil society oversight instruments towards State offices;
and
institutionalize community of practice.
Recap of the module
By reading this module the trainer is expected to:1. Outline the guiding principles of leadership and integrity
2. Appreciate the responsibility of leadership
3. Highlight the importance of vetting public officer
4. Outline the functions of the Ethics and Anti Corruption Commission
Reference:
Chapter 6
Chapter 17(article 260)
55
NOTES
56
MODULE 5:
Land, Environment
and Natural
Resources
It is my Duty to Protect Our Environment
57
5.1. Introduction
This module gives a broad description of the concept of land as property
in Kenya. It discusses the land tenure system with emphasis on reforms
in the administration and management of land.

This module is intended to create an understanding of the following:1.
2.
3.
4.
5.
6.
The principles of land policy

Classification of land
The National Land Commission
Land laws
Environment and natural resources
The role of the State in the conservation and management of the
environment
7. The role of citizens in conservation and management of the
environment
5.3 Principles of Land Policy

Land is an essential resource to livelihood. Many Kenyans attach high
sentimental value to land. It facilitates food production, is a source of
revenue and safeguards cultural heritage. Land also has environmental
and political value. Land if not well managed may be a source of violent
conflict. Several problems associated with the land question persisted
over the years and the government commenced a process of developing
a National Land Policy, which was adopted in 2009. The Policy contains
progressive land provisions expected to deal with the land question in
Kenya. The Constitution in the context of land reforms solidified progress
made by the National Land Policy.
Unlike the previous Constitution which had a weak framework for land
management and use, the current Constitution provides an opportunity
for transition to a new order. The Constitution acknowledges land is a
paramount resource that should be protected. It vests ownership of land
in the people of Kenya collectively. It provides that land in Kenya shall
be held, used and managed in a manner that is just and fair, efficient,
productive and supportable in accordance with the following principles:Understanding the Constitution of Kenya
58
just and fair access to land: - this means that every Kenyan has
a right to access to land in a non-discriminatory manner,
security of land rights: - this means that those who own land
enjoy their rights to land in a safe or peaceful manner without
fear,
supportable and productive management of land resources
(wealth): - this means that land use and management should
be carried out in a manner that ensures that the land remains
fruitful and that it does not destroy or degrade the quality of land
but rather conserves and preserves it for future generations;
transparent and cost effective administration of land: - this
requires the institutions responsible for land management and
administration to conduct their mandate in a manner that
promotes efficiency and reduces the existing bottle necks in land
administration. The citizen should receive services efficiently
and in a transparent manner;
sound conservation and preservation of environmentally sensitive
areas: - this requires deliberate efforts be taken to ensure that
the land resource is protected through conservation efforts such
as afforestation. The government is required to develop policies
that will promote environmental preservation;
elimination of laws, customs and practices that discriminate
against men and women from accessing land equally: - this
protects the right of all, particularly those that have previously
suffered as a result of discriminatory practises that limit the
right to access land and enjoy the benefits of such land; and
amicable settlement of land disputes in accordance with local
initiatives: - provided the initiatives respect the Constitution and
written law. Before the formal dispute resolution methods were
introduced, our indigenous society had elaborate and effective
mechanisms for addressing disagreements emanating from land.
This principle acknowledges and affirms the use of traditional
dispute resolution processes or other alternative methods to
resolve disputes relating to land.
5.4 Classification of Land

The Constitution provides three categories of land and attaches some
conditions on their holding. The categories of land are public, community
and private (Article 61 (2)). These categories all have equal legal
recognition.
59
5.4.1 Public land

Public land (Article 62) is held by the county government and the
national government (through the National Land Commission) in trust
for and to be administered on behalf of the people. Public land comprises
the following: land which the government has not allocated;
land which is lawfully held, used or occupied by any State organ
except land that a State organ has leased from private property
owners;
land sold or surrendered to the State;
land in respect of which ownership cannot be established;
land in respect of which no heir or beneficiary can be identified;
land on which there are minerals and mineral oils;
government forests except forests which are under the
management of communities, water catchment areas, national
parks, government animal sanctuaries and all other areas that
are specially protected by the law;
all roads, ways and access as provided by the law;
all rivers, lakes and other water bodies;
the ocean space bordering Kenyas coast, the coastal water and
sea bed around Kenyas coast to which Kenya claims exclusive
rights for fishing and other economic activities;
the area of the sea bed where the sea is relatively shallow
compared with the open sea; and
any other land declared to be public land by an Act of Parliament.
Public land is held in trust for the Kenyan people and is available for the
public to use as determined, for public interest.
5.4.2 Community Land
The Constitution gives legal recognition to community land as land held
by communities. These are identified on the basis of ethnicity, culture
or sharing of similar or common interest (Article 63). Community land
cannot be disposed of or used differently other than as specified by the
law. Any community land that has not been registered shall be held by
the county government in trust for the community. Community land
consists of the following: land registered in the name of group representatives;
land transferred to a specific community;
any other land declared to be community land by an Act of
Parliament;
60
any
unregistered
community
ust
is held in tr
land held in trust by county
Public land
nd
a
yan people
for the Ken
governments on behalf of the local
e public to
ilable for th
a
v
a
is
public
communities; and
rmined, for
te
e
d
s
a
e
s
u
land that is
interest.
legally held, managed or used
by specific communities as
community forests, grazing areas or shrines;
ancestral lands and lands traditionally occupied by hunter
gatherer communities such as the El molo; and
held as trust land by the county governments.
Community land ownership has traditionally received little recognition
and was considered to be an unsafe arrangement of land possession.
To avoid possible abuse, the Constitution requires Parliament to pass a
law that will govern the manner in which community land shall be used
and disposed of including details such as the rights of members of a
community and the processes required for sale of community land.
5.4.3 Private Land
Private land (Article 64) is the most common regime which recognises
ownership of land by individuals or other legal entities. Private land
ownership is often supported by documentation (such as a title deed) as
proof of the ownership. Private land ownership is categorized into:1. freehold interest; and
2. leasehold interest.
In freehold interest, the owner has complete and absolute ownership
of the land without time limit. A leasehold interest land ownership is
limited to a specified number of years after which it reverts to the State.
5.5 Landholding by Non-Citizens

The Constitution provides that a person who is not a citizen may hold
leasehold property only and for a period not beyond ninety-nine (99)
years (Article 65). Previous leases registered by non-citizens were for a
maximum duration of nine hundred and ninety nine years (999). These
leases will be converted into a maximum of ninety nine year leases. For
purposes of this provision a legal entity is regarded as citizen only if the
entity is wholly owned by one or more citizens.
61
5.6 The National Land Commission

The National Land Policy proposed fundamental reform of the system of
land administration to among others: facilitate efficient, cost-effective and equitable delivery of services;
ensure devolution in land administration;
enable public participation; and
enhance access especially for the poor and marginalized.
To implement these reforms,
the Constitution establishes
the National Land Commission
use, the
oid possible ab
av
To
as a constitutional body
ent to pass a
quires Parliam
re
n
io
ut
it
st
Con
r in which
subject
to
the
rules
rn the manne
ve
go
ill
w
at
law th
and disposed
governing all Constitutional
nd shall used
community la
the rights
tails such as
Commissions (Article 67). It
of including de
and the
a community
operates at the national and
of members of
munity
for sale of com
ed
ir
qu
re
s
se
county government level and
proces
land
its functions include: managing public land
on behalf of national
and county governments;
recommending to the national government a National Land
Policy;
monitoring land use planning throughout the country;
assessing tax on land;
encouraging use of traditional dispute resolution mechanisms in
resolving land conflicts;
initiating investigations into land injustices (both current and
historical);
undertaking research on land and use of natural resources and
making appropriate recommendations; and
advising national government on a comprehensive programme
for registering title to land throughout the country.
5.7 Land Laws

Land is regulated by various Acts of Parliament including the Government
Land Act (Cap 280), Registration of Titles Act Cap 281, Land Titles Act Cap
282, Registered Land Act Cap 300, Trust Land Act Cap 288, the Indian
Transfer of Property Act (1882) and the Sectional Properties Act No. 21 of
62
1987. The Constitution requires Parliament to merge and rationalise all

the existing land laws. In addition, Parliament shall make laws: prescribing limits on how much private land an individual should
hold;
regulating how land may be converted from one category to
another;
regulating the recognition and protection of matrimonial
property, in particular the matrimonial home during and on the
termination of marriage;
to protect, conserve and provide access to all public land;
to enable the review of all allocations or transfer of public land
to establish whether it was proper and legal; and
to protect the dependants of deceased persons holding interests in
any land, including the interests of spouses in actual occupation
of land.
5.8 Environment and Natural Resources

Kenyas geographical area has been blessed with numerous natural
resources which include forests, wildlife, water, fisheries and minerals.
These resources are in the category of public land and are important for
the livelihoods of Kenyans. Natural resources are limited and therefore it
is important that these resources are utilized in a manner that supports
environmental sustainability.
The State has a responsibility to regulate the manner in which natural
resources are used through formulation of laws and policies that promote
fair, equitable and sustainable exploitation and sharing of natural
resources.
5.8.1 Role of the State in Respect of the Environment
Article 69 of the Constitution requires the State to ensure:1. that any investment in natural resources must benefit the local
communities and their economies;
2. that the State shall work to achieve forest cover of at least 10%
of the total land mass of Kenya;
3. that local communities shall be engaged in the management of
the environment. This means that people are entitled to go to
court to protect their environmental rights; and
4. that any agreement for exploitation and use of natural resources
must receive approval of Parliament subject to enactment of a
63
law that shall determine the kind of natural resources that will
be subject to Parliamentary approval.
5.8.2 The Role of Citizens in Conservation and Management of
the Environment
Land, environment and natural
resources provide the basis for
the
countrys
socio-economic
ed and
urces are limit
so
re
al
ur
at
N
development and the Constitution
these
important that
is
it
e
or
ef
er
th
anner
calls for public participation and
utilized in a m
resources are
l
involvement in the governance of
environmenta
that supports
the country. Therefore the task of
sustainability
management of the environment,
land and other natural resources
cannot be left to the State alone.
Citizens have an important role to play in this regard including:
obeying the law and ensure compliance with policies;
working with government to ensure sustainable management;
monitoring and evaluating the performance of public agencies in
the management of the environment;
contributing to the development of policies and laws; and
taking up leadership positions in activities that support
environmental and natural resources protection.
5.8.4 Legislation to be Enacted
1. Parliament is required within eighteen months to enact legislation
that prescribes minimum and maximum acreage, regulates that
manner in which land may be converted and to protect and
conserve public land.
2. Parliament is required to enact legislation that provides for
transactions involving the right for exploitation of any natural
resources.
3. Parliament is required to enact legislation that gives full effect to
the part on natural resources.
64
Recap of the module

By the reading this module the trainer is expected to:1. Outline the principles of land policy;
2. Outline classification of land;
3. Appreciate the functions of the National Land Commission;
4. Appreciate and explain the importance of the environment and
natural resources;
5. Highlight the role of the State conservation and management of the
environment; and
6. Outline the role of citizens in conservation and management of the
environment.
Reference:
Chapter 5
Chapter 17(art. 260)
Government Land Act (Cap 280),
Registration of Titles Act Cap 281,
Land Titles Act Cap 282, Registered Land Act Cap 300,
Trust Land Act Cap 288
65
NOTES
66
MODULE 6:
Representation and
Electoral Processes
Our Free, Fair and Independent Choices
Lead to Peace and Harmony
67
6.1 Introduction
This module gives a broad account of the representation and electoral
framework as the basis of recruiting political leadership in Kenyas
democratic system. It emphasises the connection between representation,
values, human rights, and principles of leadership. The module outlines
the major elements of the electoral process. These processes should be
understood and evaluated by the extent to which they give effect to the
principles of representation, support nation building, ensure legitimacy
of the State and promote good governance.

This module is intended to create an understanding of the following: the context and key concepts of representation and elections;
the principles of representation;
the legal and institutional framework for electoral administration;
the outline of the electoral process; and
public participation in the electoral process.
6.3 Representation in Context and Key Concepts

The structure of the Kenyan State is a republican. The Constitution
declares Kenya as a sovereign republic. It also declares that the Republic
of Kenya shall be a multi-party democratic State founded on national
values and principles of governance stated under Article 10. This is the
foundational constitutional framework of the Kenyan State.
6.3.1 Elections and the Concept of Republic
The concept of republic is the foundation of the agency relationship
between the citizens and their leaders. By declaring Kenya a democratic
republic, the political framework is such that elections provide the most
decisive instrument for the citizens to choose their representatives.
During elections, citizens should participate effectively, get involved in
the work of political parties and evaluate the candidates objectively. The
concept of one man one vote means that each person has equal stake in
the governance of the country. This role should be exercised responsibly.
6.3.2 Meaning of Multi-Party Democracy
This is the political system upon which the Kenyan State is founded.
Multi-party system means that Kenya is governed through political
parties. The system allows for the establishment of more than one
68
political party which freely compete

for leadership singularly or through
coalitions. The Kenyan multi-party
system is guaranteed and regulated by
the Constitution and other legislation
such as the Political Parties Act. The
bill of rights protects the framework
for political association and seeks to
establish a level playing field for all
political parties.
enya as
ion declares K
The Constitut
declares
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a sovereign re
all be a
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that the Repub
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ated under A
governance st
Democracy emphasises peoples participation in electing their leaders

and engaging in the governance processes. A fundamental element of
democracy is the existence of a State which is founded on peoples choice.
The State must be able and willing not only to create the conditions
for free and fair elections, but also to support the development and
maintenance of the institutions necessary for the practice of democratic
governance.
6.3.3 Meaning of Free and Fair Elections
The Kenyan Constitution provides for regular elections through which
leaders are elected, their mandate renewed or are replaced. Free and fair
elections comprise processes by which the people elect their government.
Given that democracy is based on leadership which derives from free
consent of the people, elections must ensure adequate freedom and
fairness. This is achieved through the legal framework, transparent
institutions for administration of the process, fair competition and
free participation of the people without intimidation, threats, violence,
corruption or manipulation. These factors are designed to ensure
integrity, acceptance of the outcomes and legitimacy of the State.
6.3.4 Elections and the Bill of Rights
The bill of rights provides for political rights which guarantee the freedoms
necessary in a democratic system. Article 38 restates the right of every
citizen to make political choices; form or participate in forming political
parties; participate in activities of a political party; and campaign for a
political party or cause. The Constitution guarantees the right to free, fair
and regular elections based on universal suffrage and free expression.
The Constitution also protects the right to be registered as a voter and to
vote by secret ballot and to compete for any elective office.
69
All other rights also support the electoral process, particularly equality
and non discrimination (Article 27); freedom of conscience, religion,
belief and opinion (Article 32); freedom of expression (Article 33);
freedom of the media (Article 34); access to information (Article 35);
freedom of association (Article 36); assembly, demonstration, picketing
and petition (Article 37); and freedom of movement and residence
(Article 39).
6.3.5 Elections and Nation Building
Elections are high stakes processes and therefore have the potential to
generate conflict. The Constitution has significant inbuilt provisions to
ensure that citizens have opportunity to exercise their sovereignty, that
the majority prevails and that the political system engenders equity,
respect for minorities and marginalised groups. Elections provide
opportunity to implement national values. A mature political culture will
lead to credible electoral process, respect to our diversity and lead to
acceptance of the results.
While during elections the majority always prevails, the Constitution
positively protects minorities. For example, under Article 100, Parliament
is expected to provide for legislation that promotes representation of
minorities and marginalised communities in Parliament. Political parties
are also required to ensure representation of the youth, women and
persons with disabilities. The electoral system provides the opportunity
for exercise of sovereignty and builds legitimate leadership. Citizens
have the responsibility to participate actively in the process as voters,
take part in activities of political parties, debate different policy options
and accept genuine results of the process.
6.3.6
Principles of Representation
The Constitution addresses the issues of representation by providing

principles that guide the electoral system. The principles of representation
are based on the understanding that: it is crucial to make a direct connection between the principles
of representation and the bill of rights;
the principles of elections also set the standard or the yardstick
of duty on all institutions involved in electoral process and
responsibilities of citizens to ensure free, fair and credible
elections; and
we appreciate our electoral heritage and tested best practices.
70
The principles of representation as itemised in Article 81 of the

Constitution are: the freedom of citizens to make political choices including the right
to vote and to be a candidate for public office or office sponsored
by a political party or as an independent candidate within an
environment of free and fair competition;
not more than two thirds of the membership to elective bodies
shall be of one gender;
fair representation of persons with disabilities;
fair representation, universal suffrage and equality of the vote;
and
elections that are:
free from violence, intimidation, improper influence, or
corruption;
transparent;
conducted by an independent body and administered in
an impartial, neutral, efficient, accurate and accountable
manner; and
done by secret ballot.
6.4
Legal and Institutional Framework for Electoral

Administration
The Constitution is the basic law governing elections in Kenya. The
Constitution creates the organs of State, establishes the key elective
offices at the national and county level and establishes the institutional
framework for management of elections.
Elective offices at the national level include: the President and Vice President;
the National Assembly: 290 directly elected to represent single member constituencies;
47 women each elected from each county; and
12 nominated members. (parties lists)
The Senate: 47 elected members (one from each county);
16 Women members nominated by political parties;
2 members representing the youth; and
2 members representing persons with disabilities.
71
Elective offices at the county level include: The governor and deputy governor;
The members of the county assembly;
Special seat members nominated by political parties to ensure
not less than two thirds gender principle; and
Representatives of the youth, marginalized groups and persons
with disabilities nominated by political parties.
Political parties will nominate members to National Assembly,
Senate or county assembly based on their proportion of members
on each of the three House.
Table 4: Elective Positions and their requirements
Position
Qualifications
Disqualifications
President
(Article 137)
Must be a citizen by birth
Must not owe allegiance to a

foreign State
Must have the same

qualifications required to be
a Member of Parliament
Must not be a public officer or

be acting in any State or public
office
Must be nominated by no
fewer than two thousand
voters from at least twenty
four (24) counties
Must not have held office as a

member of the IEBC
Must be a registered voter
Must not be of unsound mind
Must satisfy any educational,

moral and ethical
requirements prescribed by
the Constitution or by an Act
of Parliament
Must not be undercharged

bankrupt
Must be nominated by a
political party or be an
Independent Candidate
Must not be subject to

sentence of imprisonment of at
least six months as at the date
of registration as a candidate
or at the date of election
Must not have been found
in accordance with any law
to have misused or abused
a State or public office or in
any way to have contravened
Chapter Six of the Constitution
72

Position
Qualifications
Disqualifications
Member of
Parliament
(Member of
the National
Assembly and
Senators)(Article
99)
Must be registered as a voter
Must not be serving as a State

officer
Hold a post secondary school

qualification
Must not have served as

member of IEBC in the last five
years
Must be nominated by a
political party or be an
Independent Candidate
must have been a citizen for at

least the ten years immediately
preceding the election date
Must not be a member of
county assembly
Must not be of unsound mind
Must not be undercharged
bankrupt
Must not be subject to a
sentence of imprisonment of at
least six months, as at the date
of registration as candidate or
date of election
Must not be found in
accordance with any law, to
have misused or abused a
State or public office or in
any way to have contravened
Chapter Six of the Constitution
Must not participate either
directly or indirectly in any
manner in any or public
fundraising or harambee
within eight months preceding
a general election or during
an election period unless the
fundraising is for the purposes
of a candidate in the elections.
Governor, Deputy
Governor and
Members of the
County Assembly
73
Registered as a voter and

must be nominated by a
party or be an independent
candidate
State officer or other public

officer other than member of
the county assembly

Position
Qualifications
Disqualifications
Has been member of IEBC in
the last five years
Has not been a citizen of Kenya
for the last ten years before the
election date
Is of unsound mind
Is undischarged bankrupt
Found under any law to
have misused or abused a
State office or public office or
contravened Chapter Six.
6.5 When Vacancies Occur in Elective Offices

6.5.1 President:
Vacancy occurs in the office of the president if the holder (Article 146):
dies;
resigns, in writing, addressed to the Speaker of the National
Assembly;
is removed for lacking capacity; or
is impeached;
6.5.2
Member of Parliament (National Assembly and Senate) and

County Assembly
Vacancy will occur if a member of the National Assembly, Senate, or
county assembly:
dies;
during any session of Parliament, the member is absent from
eight sittings of the relevant House without permission, in writing
from the Speaker, and is unable to offer satisfactory explanation;
if the member is removed from office for violating leadership or
integrity law under Article 80;
resigns from his party or is regarded to have resigned, or where
the member is an independent candidate, joins a political party;
end of the term of the relevant House;
or the member becomes disqualified to hold office of MP;
an elected MP is recalled by the citizens of the constituency
which elected him/her.
74
6.5.3 Vacancy in the Office of Governor:

The office of the governor becomes vacant if the holder (Article 182):
dies;
resigns in writing addressed to the Speaker of the county
assembly;
becomes disqualified from being elected governor;
is convicted of an offence punishable by imprisonment for at
least twelve months;
is removed from office under Article 181 of the Constitution.
6.6 Institutional Framework for Elections Management
Elections involve a variety of processes and a number of institutions.
Under the Constitution, the primary duty of ensuring management of
the electoral process lies with the Independent Electoral and Boundaries
Commission. However, to achieve the ultimate outcomes of free and fair
elections, a number of other institutions must make critical contributions.
These include Government in providing necessary budgetary provision;
Parliament in establishing necessary legal and regulatory framework;
the Judiciary in resolving electoral disputes, the Registrar of Persons,
the police, the political parties, the civil society and the voters.
It is important to appreciate that any of the complementary processes or
institutions may influence the credibility and acceptability of electoral
process. All persons involved in the electoral process have corresponding
duty to undertake their roles responsibly in accordance with the law and
to safeguard the integrity of the process. The law provides penalties for
breach of this responsibility.
6.6.1 The Independent Electoral and Boundaries Commission
(IEBC)
The management of elections is vested in the Independent Electoral and
Boundaries Commission (Article 88). The Commission is composed
of a chairperson and eight other members. The commission is selected
through a competitive process that ensures public participation with
Parliamentary approval before formal appointment by the President.
The Commission is managed at the national level through a professional
secretariat made up of functional directorates, regional election
coordinators in seventeen regions and constituency election coordinators
in all constituencies.
75
The mandate of the Commission is: to conduct continuous registration of voters;

revision of voters roll;
reviewing names and drawing of electoral boundaries;
regulating political parties nomination of candidates for elections
and monitoring parties compliance with legislation;
settling electoral disputes;
registering of candidates for elections;
voter education; and
facilitating election observation, monitoring and evaluation.
6.6.2 Registrar of Political Parties
The Registrar of Political Parties is a crucial office in the electoral process.
The office is responsible for registration and regulation of political parties.
The office is an independent State office and is not subject to control by
any person or authority.
The functions of the Registrar are to:(a) register, regulate, monitor, investigate and supervise political
parties to ensure compliance with the law;
(b) administer the Political Parties Fund;
(c) ensure publication of audited annual accounts of political
parties;
(d) verify and make publicly available the list of all members of
political parties;
(e) maintain a register of political parties and the symbols of the
political parties;
(f) ensure and verify that no person is a member of more than one
political party and notify the Commission of its findings;
(g) investigate complaints received under this Act; and
(h) perform other functions as may be conferred by law.
Decisions of the registrar are subject to review by the Political Parties
Disputes Tribunal and ultimately by the High Court.
6.6.3 Political Parties
Kenya is a multi-party democratic State. Democratic and robust political
parties are therefore key in building and sustaining the political system.
Political parties are instrumental in recruiting political leaders, forming
the government and debating key national issues. Political parties are
expected to research and present regional and national issues in a
76
manner that promotes the common good of all citizens in the national
interest.
Every citizen, minority and marginalised groups have stakes in political
parties irrespective of their gender. Political parties are expected
to promote internal democracy, respect the national diversity and
competing interests. Their processes including recruitment, nomination
and financial accountability should be transparent and guided by the
law.
Political parties must meet certain requirements in order to qualify for
registration. The Constitution through Article 91 provides that every
political party shall:
have a national character as required by the law and promote
and uphold national unity;
have a democratically elected governing body;
promote and practise democracy through regular, fair and free
elections within the party;
facilitate participation by all, including, minorities and
marginalized groups;
respect and promote human rights and fundamental freedoms
and participation by both men and women in a fair and just
manner; and
observe the code of conduct for political parties.
Political parties must not be founded on religious, racial, ethnic, gender
or regional basis. Further, they must not engage in violence, maintain
armies or engage in bribery and corruption. The leadership of political
parties must respect the two thirds gender principle and must not have
contravened the principles of leadership and integrity under Chapter Six
of the Constitution.
Political parties are funded by
public money through the budget.
A designated Political Parties Fund
is created by the Constitution and
Political Parties Act. The law restricts
parties from receiving funds from
foreign sources, intergovernmental
organisations,
nongovernmental
organisations or grants which amount
77
to
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Political partie
and
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citizens in the
to more than five percent of the partys total budget. Parties are required
to declare and account for their sources of funds.
Political Parties are expected to be transparent in management of their
affairs. Documents and reports submitted to the registrar should be
truthful. Failure to submit or submitting false documents are offences
under the Political Parties Act.
6.6.4 Independent Candidates
The Constitution provides that a person is allowed to stand for elections
as an independent candidate if the person (Article 85): meets the requirements expected of all the other candidates in
the elective position sought, and
is not a member of a registered political party and has not been
a member of any party for at least three months immediately
before the date of the election.
6.7 Elections and Referenda

Election is a process involving a collection of activities which are mutually
reinforcing. Each activity is important in contributing to the credibility
of the process. It is important to
appreciate each activity, the actors
involved and how it contributes to
r of
ot be a membe
free and fair electoral process. This
A person cann
at
y the
e political part
more than on
module will cover, in brief some
Act
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same time. Po
key elements including: boundaries
))
(section 14(4
delimitation;
voter
registration;
political campaigns; voting process
including counting and declaration
of results; and resolution of disputes.
78
Fig 3: The Electoral Cycle
6.7.1 Drawing of Electoral Boundaries

Reviewing of names and boundaries of constituencies is to be done at
intervals of between eight (8) and twelve (12) years (Article 89) by the
Independent Electoral and Boundaries Commission. The Constitution
sets the number of constituencies at two hnundred and ninety (290).
The review for wards is to be determined by the County Government
Bill in accordance with the proposals of the Task Force on Devolved
Government. The Task Force proposed a limit of 1450 wards nationally.
The Commission will allocate the wards to counties and proportionately
to all constituencies within the counties.
Constituencies are required to have as nearly an equal number of people
as possible based on the population quota. Population quota is the
national population figure divided by the total number of constituencies.
However, there are variations allowed. In the first review, the Commission
must ensure that constituencies which existed before adoption of the
Constitution are not lost.
79
Cities and sparsely populated areas may have a population greater or

lesser than the population quota by up to 40%. Other areas may have
a population deviation of up to 30%. The factors that the Commission
shall take into account in allowing variation are geographical features,
urban areas, community ties and means of communication.
In applying the constitutional criteria and allowed deviation margins,
the Commission is expected to consider various factors including:
geographical features; community of interest, economic historical and
cultural ties; and communication. The Commission is obligated to
ensure that subsequent delimitation exercises progressively achieve
approximate population equality.
In reviewing the names and boundaries, the Commission must consult
all the interested parties. A person, dissatisfied by the drawing of electoral
boundaries may apply to the High Court to review or evaluate the decision
made by the Commission within thirty days of the publication of that
decision.
6.7.2 Registration of Voters
Article 38(3) of the Constitution declares that every adult citizen has
the right to be registered as a voter without unreasonable restrictions.
This right raises at least two obligations. On the one hand, the State
and the IEBC have the duty to ensure that there is an efficient system
for registering voters. On the other hand there is a duty on the part
of the adult citizens to ensure that they are registered as voters. The
Commission is expected to employ appropriate methods and technology
to ensure accuracy and completeness of the register. Citizens are also
required to take steps to assist the Commission by inspecting the register
to verify their particulars and ensuring that the names dead voters are
removed from the register.
For one to register as a voter at elections or referenda the person: has to be an adult citizen;
must not be of unsound mind;
must have a valid Kenyan Identity Card or Passport;
must not have not been convicted of an election offence in the
immediate past election; and
must be registered at only one registration centre.
80
The Constitution, provides that administrative arrangements and the

process of registration of voters must facilitate eligible citizens to exercise
their right to vote.
6.7.3 Voting
The Constitution requires the Commission to ensure that the voting
method used is simple, accurate and transparent. The votes must be
counted, verified and announced promptly at each polling station. The
results from the polling stations must then be accurately tallied and
announced by the returning officer. All election materials must be kept
safely (Article 86).
6.7.4 Allocation of Party List Seats
The Constitution provides for slots of special seats in the National
Assembly, Senate and the county assembly, by nomination through
political party lists (Article 90). Parties are entitled to the special seats
by virtue of their strength of members in the respective Houses. Political
parties are required to submit their lists to the Independent Electoral
and Boundaries Commission during the nomination process as specified
by law.
The list must alternate between male and female candidates
other than with respect to the 16 women seats in the Senate.
The list is expected to reflect the regional and ethnic diversity in
the case of county assembly.
A person qualifies to be on the list if the person has been a
member of the party for at least three months preceding the
submission of the list.
Presidential and deputy presidential candidates are eligible to be
part of the list.
6.8 Recall of Members of Parliament

Voters in a constituency or a county may recall a sitting Member of the
National Assembly or the Senate before the end of her/his term (Article
104). The voters can only exercise the right to recall an MP/Senator if:
the member is found to have violated Chapter Six of the
Constitution;
is found to have mismanaged public resources; and
is convicted of an election offence under the Elections Act;
The law places other conditions for exercising the right to recall. This
81
right can only be initiated after a ruling by the High Court based on
the indicated offences. The right can only be initiated after two years
following an election and not later than twelve months preceding the
next general election. Recall petition cannot be filed twice in respect of
the same member, and losers in an election are barred from initiating a
recall.
Recall will be initiated through a petition to the Commission and must
be supported by at least thirty percent of the registered voters in more
than half the wards in the constituency. Following the petition, the
Commission is required to conduct recall elections where the question
is put for a YES or NO vote in the county or constituency. If the recall
election is successful, the member is considered to be recalled and the
office will be vacant. In the recall election, fifty percent of the registered
voters must vote YES.
6.9 Election Offences

Table 5: Election offences and their penalties
Nature of Offences
Offence
Penalty
Offences relating to
register of voters
Unauthorised printing of
the register
Fine not exceeding

one million or
imprisonment for a
term not exceeding six
years or to both.
Unauthorised printing of
a voters card
Possessing another
persons voters card
without authority
Supplying voters card
to any person without
authority
Destroys, damages,
defaces or alters a voters
card
Selling or purchasing of a
voters card
Making false Statement
of during application for
registration
82
Nature of Offences
Offence
Penalty
multiple registration
as a voter
Making multiple
applications to register
Fine not exceeding

one hundred
thousand shillings or
imprisonment for a
term not exceeding one
year or to both
Having been disqualified

to vote by the election
court, applies for
registration
Not be eligible to vote

in that election or in
the next election
voting
Member of the
Commission who aids
another to commit an
offence
Fine not exceeding one

hundred thousand
or imprisonment not
exceeding one year or
both
Forgery, destroys a ballot

paper, official perforation,
stamp or mark a ballot
paper
Fine not exceeding

one million or
imprisonment for a
term not exceeding six
years or both.
Supply a ballot paper

to any person without
authority
Sells or offers to sell a
ballot paper; purchases
or offers to purchase a
ballot paper
In possession of a
marked ballot paper
without authority
Puts into any ballot box
anything other than
authorised ballot paper
Taking polling material
outside the station
Makes a mark on any
ballot paper issued to any
person other than himself
without authority
Voting more than once in
any election
83
Nature of Offences
Offence
Penalty
Interferes with the

secrecy of the vote
Pretends to be unable
to read in order to be
assisted
Pretends to be visually
impaired or suffering
from disability so as to be
assisted.
There are also offences relating to members and staff of the Commission
during registration, voting process and declaration of results. Such
offences also attract a penalty of one million or one year of imprisonment
or both.
6.10 Referendum
The Constitution emphasises the right of the citizens to determine their
destiny. The Constitution protects certain parts of its provisions from
being changed unless a referendum is held. The county governments may
also seek referendum in the county on various issues. The Independent
Electoral and Boundaries Commission is responsible for organising and
supervising referendum.
The following process will be followed to organise a referendum.
Step
Action to be taken
Determination of
referendum issue
When an issue requires a referendum the

President is required to forward the issue
to the Commission
Framing of the
referendum question
The Commission is required to frame the

question and lay it before the House
Approval of the question
The House approves the question by a

resolution
Organisation of the
referendum
The Commission publishes the question

and organises the referendum within
ninety days
84
6.11 Electoral Disputes
The Constitution provides that electoral disputes shall be settled

expeditiously (Article 87). The Commission will be empowered to
resolve disputes prior to declaration of results. Disputes on the validity
of elections are resolved by the Judiciary.
Petitions on the validity of presidential election must be filed
in the Supreme Court within seven (7) days of the declaration
of the results of the presidential elections. The Supreme Court
must hear and determine the petition within fourteen (14) days
and its decision is final. If the Supreme Court decides that the
presidential election is invalid a fresh election will be held within
sixty (60) days.
Petitions concerning an election, other than a presidential
election, shall be filed within twenty eight (28) days after the
declaration of the election results (Article 87 (2)). Service on
the party against whom the elections are challenged may either
be direct or by advertisement in a newspaper with national
circulation.
Petitions regarding county elections are to be filed in the High
Court within the County or nearest locations. Such petitions will
be heard and determined within six (6) months of the date of
lodging the petition.
85
Recap on the module
By going through this module the trainer is expected to: Be able to explain the context of the Kenya democratic system;
define democracy;
define republic;
re-examine the topics on sovereignty of the people and supremacy
of the Constitution;
assess the connection between elections and human rights,
national values, and the principles of leadership and integrity;
highlight the major institutions for management of the electoral
framework;
outline the various laws which regulate the elections;
understand and be able to assess the work of political parties;
outline the major activities which form the electoral process;
and
assess whether all processes and systems are adequate in
ensuring free and fair elections.
Reference.
Bill of Rights
Article 10
Chapter Six
Chapter 7
Articles 97; 98; 100; 177
IEBC Act
Political Parties Act
Elections Act
86
MODULE 7:
Structures of the State:

The Legislature
An Efficient Government, Like A Choir, Thrives On
Harmony
87
7.1 Introduction
This module addresses the structure of government at the national
level under the constitutional framework. These primarily comprise
Parliament, the National Executive and the Judiciary. This part highlights
the structure, powers and functions of parliament/legislature.

By reading this module, the trainer is expected to: appreciate of the structure of the Kenyan State;
understand the functioning of government;
be able to make a critical assessment of the relationships of the
various organs of government; and
understand ways of engaging with the various organs of
government.
7.3 Parliament
The National Legislature is made up of two chambers:
1. The National Assembly and
2. The Senate.
7.3.1 Role of Parliament
Globally Parliament exercises three main functions:1. Making law or legislation

2. Oversight of the executive
3. Representing the people
The Constitution provides that the power to make laws is derived from
the people who are sovereign. This power is exercised at the National
level by Parliament (Article 94). Parliament:
may consider and pass amendments to the Constitution as
provided for in the Constitution;
may alter boundaries of counties as provided for in the
Constitution; and
shall protect the Constitution and ensure democratic governance.
7.3.1 Making Law: Legislative Role of Parliament
Legislation is the process of making new laws and amending or repealing
old ones. Parliament is empowered to change the Constitution, make new
88
law on many subjects and change or abolish an existing law. Parliament

may also delegate limited authority to make law to another institution
by way of regulations.
The Parliamentary power to make law must be exercised in accordance
with the Constitution. Parliament is also guided by Parliamentary
procedures and practice. These are normally contained in the Standing
Orders, Speakers, Rulings and Parliamentary customs. In exercising
the power to debate and make law, Parliamentarians enjoy privilege
for anything said on the floor of the House or within the precincts of
Parliament.
7.3.2 Procedure of Making Law
Parliamentary authority to make law is exercised through passage of
Bills. A Bill is a formal legislative proposal presented to Parliament
on an area identified for legislation. Bills are the result of significant
policy proposals. As the policy initiation organ, the executive makes
substantial legislative proposals. This is because Bills involve significant
policy research, and making policy choices. Considerable dialogue or
consultations is therefore required to develop Bills which will effectively
address national issues.
In the former Constitution, Bills usually originated through proposals by
the executive sponsored by the Minister under whose docket the subject
falls. Any Member of Parliament may also present a Bill for consideration
by Parliament. The Constitution and the Standing Orders provide ample
opportunities for Private Members to present Bills to Parliament.
Once a Bill is developed it must be published for a period of fourteen days.
Publication of Bills enhances public debate and promoting consensus
before the Bill is finally tabled in the House for debate.
The Bill is then formally presented in the House in what is referred to as
first reading. Following first reading Bills are committed to the relevant
Departmental Committee which facilitates detailed debate and reports
back to Parliament within ten (10) days. The Bill is then presented for
second reading and presented to the Committee of the whole House
which discusses the Bill and the proposed amendments in detail. The
Bill is then reported to the Whole House for further agreement. Once the
Bill passes Second Reading, it is presented for Third Reading and
passed by the House.
89
Fig 4: Procedure for Making Law

Bill is developed
Published for
a period of
fourteen days
Formally
presented in
the House
First Reading
Third Reading
Bill Passsed
Bill and
Ammendments
discussed
Tabled in the
House for
debate
within 10
days
Second
Reading
Under the Constitution, Bills on several topics will have special status
and will have to be considered by both Houses of Parliament.
7.4 Special Procedures for Particular Bills:

1.
Bills to amend the Constitution: the Constitution gives special

safeguards to the principle of supremacy of the Constitution. A Bill
proposing to amend the Constitution may be introduced in either
House and must be passed by the two Houses of Parliament. Once
such a Bill is presented in the House, it must be published for
ninety (90) days within which Parliament is required to facilitate
public discussions (Article 255).
Additional protection is also given to amendments which touch on

particular areas which are considered fundamental to survival of
Kenyas democracy. These areas include:a. supremacy of the Constitution;
b. territory of Kenya;
c. sovereignty of the people;
d. national values and principles of governance;
e. bill of rights;
f. term of office of the President;
g. independence of the Judiciary, Commissions and
independent offices;
90
h. functions of Parliament; or
i. the objects, principles and structure of devolved government.
All Bills touching on the areas listed above must be approved
through a referendum (Article 255).
Constitutional amendments may be proposed through popular
initiative supported by at least one million registered voters.
Proposed amendments by popular initiative must be presented
to all county assemblies for consideration. Only where the draft
Bill is approved by a majority of county assemblies will the Bill be
introduced in Parliament for consideration. If Parliament fails to
pass the proposed amendment or where the amendment relates to
any area requiring referendum, a referendum will be held.
2.
Money Bill: Money Bills are Bills with contains provisions dealing
with: taxes; the imposition of charges on a public fund; appropriation,
receipt, custody, investment or issues of public money; rising or
guaranteeing of any loan or its repayment. Money Bill may only be
introduced in the National Assembly by a Committee of the House
after taking into account views of the Cabinet Secretary responsible
for Finance.
3.
Ordinary Bills Concerning County Government: Bills concerning

county government must be passed in both Houses. If one House
rejects a Bill that has been passed by the other House it must
be referred to a Mediation Committee or if the House proposes
amendments, it must be referred back to the House where it
originated.
4. Special Bills Concerning County Governments: Special Bills

concerning county governments are Bills which relate to election
of members of the county assembly or county executive; or annual
county allocation of revenue. The National Assembly is empowered
to amend or reject a special Bill by a resolution which must be
supported by at least two-thirds of the members of the Assembly.
91
Fig 5: Origination of Bills

Origination
of Policy and
legislative
proposal
Formal
Publication of
Bills
First Reading
in Parliament
7.4.1 Presidential Assent, Referral and Coming into Force of Laws

Within forteen (14) days after receipt of a Bill, the President shall assent to
the Bill or refer it back to Parliament for reconsideration. If the President
does not assent to the Bill within the stipulated period, the Bill shall be
taken to have been assented to and, therefore, become law (Article 115
(6)). The Bill shall come into force on the 14th day after its gazetting as
an Act of Parliament.
7.4.2 Oversight of the Executive
Parliament has considerable power to oversee the work of the executive.
The most crucial oversight mandate of Parliament is in respect of
approving appointments to the executive; debating policy proposals
contained in the sessional papers; and scrutinizing the work of the
executive in the departmental committees and calling upon members of
the executive to account. Parliament also has special powers to approve
particular decisions by the executive, for example, treaties signed by the
President must ultimately be ratified by Parliament. Parliament is also
charged with the responsibility of approving declaration of war by the
President.
In exercising its power of oversight, Parliament passes resolutions on
its own initiative, based on proposal from a Private Member or the
reports of Committees. Such resolutions are expected to be acted upon
by the executive. Whereas, resolutions are not legally binding, failure
to respect them may attract condemnation by Parliament. Parliament
also has considerable opportunities in the Standing Orders to enforce
its resolutions.
A critical oversight function of Parliament is regulating public finance.
Parliament participates in the development of the national budget and is
responsible for approving the national budget, collection of revenue and
all expenditures. The Senate protects the interests of the counties and
must approve the basis for revenue allocation among counties every five
(5) years.
92
In exercising its oversight role, both chambers of Parliament have power

to investigate all public accounts or government investments and the
report of the National Auditor General and obligate any department
or person to account for any misappropriation. The Public Accounts
Committee and the Public Investments Committee have broad powers to
investigate and receive evidence and call any person to account.
7.4.3 Representation of the People
Parliament represents Kenyas diversity and embodies the collective
sovereignty of the people (Article 94). Each Member of Parliament is a
representative of a specific area or group of people. They are expected to
address and bring regional or sectoral issues to national attention. MPs
are also responsible to ensure that local problems are addressed.
Members of Parliament have significant opportunities to express local
issues. The main examples are the Parliamentary Questions and
Presentation of Petitions. Parliamentary Questions provide opportunities
for MPs to raise questions of local concern like ineffectiveness of an
executive department in the region. The questions once raised will
require answer from the relevant department and remedial action by the
executive.
7.4.4 Functions of Parliament
The Constitution allocates these roles between the two chambers as
follows:7.4.5 Role of the National Assembly
The National Assembly (Article 95): represents the people of the constituencies and special interests
in the national assembly;
debates on and resolves issues of concern to the people;
makes laws;
determines the allocation of national revenue between the
national and county governments;
authorizes the expenditure of public funds for specific purposes;
exercises oversight over national revenue and its expenditure;
reviews the conduct in office of the President, the Deputy
President and other State officers and initiates the process of
removing them from office;
exercises oversight over State organs; and
approves declarations of war and extensions of states of
emergency.
93
7.4.6 Membership of the National Assembly
The National Assembly is made up of 350 members as follows:-
two hundrend and ninety (290) members directly elected from

the Constituencies;
forty seven (47) women members directly elected by each County;
twelve (12) members to represent special interests including
youth, persons with disabilities and workers, nominated by the
parties represented in the National Assembly according to the
number of votes won; and
the Speaker of the National Assembly.
7.4.7 Role of the Senate

The Constitution provides that the Senate (Article 96): represents the counties and protects the interests of the Counties
and their governments;
participates in the law-making by considering, debating and
approving Bills (draft Acts of Parliament) that concerns Counties;
determines the allocation of national revenue among counties
and exercises oversight over national revenue allocated to the
county governments; and
participates in the oversight of State officers by considering and
having the final vote on any resolution by the National Assembly
to remove the President or the Deputy President from office.
7.5.8 Membership of the Senate
The Senate is made up of sixeghty eight (68) members as follows (Article
97): forty seven (47) members each elected by the registered voters of
each County;
sixteen (16) women members nominated by political parties
according to their proportion of seats won in Senate;
two (2) members, one man and one woman representing the
youth;
two (2) members, one man and one woman representing persons
with disabilities; and
the Speaker
7.5 Offices in Parliament

7.5.1 Speakers and Deputy Speakers of Parliament
Each House of Parliament shall have a Speaker and a Deputy Speaker
elected by the House itself (Article 106). The Speaker shall be elected
94
from outside the membership of each House while the Deputy Speaker is
elected from among the members of the House. At any sitting of a House
of Parliament, the Speaker or the Deputy Speaker or temporary speaker
presides.
7.5.2 Parliamentary Service Commission
Parliamentary Service Commission is established under Article 127 of
the Constitution. The Commission consists of: The Speaker of the National Assembly, as chairperson;
Vice-chairperson elected by the Commission;
Seven members appointed by Parliament comprising;
four (4)nominated equally from the Senate and National
Assembly of whom at least two (2) must be women;
and three (3) nominated by opposition parties comprising at
least one from each House and at least one (1) must be a
woman.
The Parliamentary Service Commission is responsible for:a) providing services and facilities to ensure the efficient and
effective functioning of Parliament;
b) constituting offices in the Parliamentary service, and appointing
and supervising office holders;
c) preparing the Parliamentary budgets;
d) promoting good practices of Parliamentary democracy; and
e) ensuring the well being of Members of Parliament.
7.5.3 Clerks and Staff of Parliament
The Parliamentary Service Commission is responsible for appointing
Clerks to the Senate and the National Assembly with the approval of
the relevant House. Clerks are important offices in the House. They are
responsible for assisting Parliament and Committees with their work;
undertaking general administration; act as accounting officers and
facilitate official correspondence with the House. The Clerk of the Senate
is also the Secretary of the Parliamentary Service Commission.
7.5.4 Party Leaders
The Constitution (Article 108) provides for: a leader of majority party who is the leader in the National
Assembly of the largest party or coalition of parties; and
a leader of the minority party who is the leader in the National
Assembly of the second largest party or coalition of parties
95
7.5.5 Mediation Committee

Most Countries with two Houses of Parliament have mechanisms of
promoting consensus between the Houses and resolving any conflicts.
The Constitution establishes the Mediation Committee to reconcile
versions of Bills proposed by the two Houses (Article 113). The Mediation
Committee is appointed by the Speakers of both Houses and comprises
equal number of Members of each House. Where the Mediation Committee
fails to agree on a consolidated version of a Bill, it is considered defeated.
7.5.6 Parliamentary Committees
Parliament comprises of committees which consider issues in detail,
initiate public participation, invite technical input and makes proposals
for consideration by the full House. Each House of Parliament is
empowered to establish Committees in accordance with its standing
orders. Much of MPs time is spent in the Committees where the bulk
of detailed work is done. The Committee of the whole House is where
Parliament converts itself into a Committee during the Second Reading
of a Bill. Ways and Means Committee and Committee of Supply are
responsible for considering issues on raising of revenue and distribution
of funds.
Some examples of Committees include: Investigatory (Oversight) Committees (Sessional):
Parliamentary Accounts Committee and Parliamentary
Investments Committee. Other select Committees include
House Business Committee; the Budget Committee;
Implementation Committee; Equal Opportunity Committee;
Local Funds Committee.
Departmental Committees: Departmental Committees are
mandated to consider issues relating to specific sectors in
the executive. Such Committees will consider appointments;
departmental oversight; budgets; reports concerning their
respective areas of mandate.
Other Committees: these include Speakers Committee; and
Library Committee among others.
7.6 Opportunities for Public Participation
Parliament is expected to conduct its business in an open manner to

facilitate public participation and involvement in all the business of
Parliament. Parliament shall also facilitate the right of citizens to petition.
The Constitution provides adequate opportunity for public participation
96
in formulation and passage of Bills. Standing Orders provide further

opportunities including seeking public submissions during approval
of appointments; Parliamentary investigations; budget process; and
consideration of Bills. Each Member of Parliament is also expected to
hold continuous consultation with their constituents and to ensure their
issues are brought to national attention.
7.7 Parliamentary Accountability
As an elective body, the primary opportunity for holding Parliament

accountable is through frequent elections. The public have the final
authority in who becomes an MP or a Senator. The Constitution respects
the principles of separation of powers, checks and balances. Parliament
is restricted to its constitutional functions. By introducing two Houses
of Parliament, each House is expected to review and reconsider issues
thereby adding objectivity, detailed debate and national consensus. The
Constitution introduces individual responsibility for MPs regarding their
roles as the peoples representatives through the power of recall (Article
104). Where Parliament passes a Bill conferring financial benefits on
its members, such Bill only take effect in the following Parliament
(Article 116 (3). The power of Presidential assent provides checks on
the legislative procedure. The principle of constitutional supremacy is
also safeguarded through the restriction on amendments and the power
of the Judiciary to overrule any law which is inconsistent with the
Constitution.
Recap of the Module:
By studying this module, the trainer is expected to form sound understanding

and ability to appreciate:
1. the structure and functions of Parliament
2. the various offices of Parliament and their functions
3. functioning of Parliament in passing legislation;
4. how Parliament holds the executive to account;
5. how Members of Parliament exercise their representation functions;
6. how to engage with Parliament; and
7. how Parliament is held accountable.
Reference
Chapter 8.
97
NOTES
98
MODULE 8:
Structure of the State:

The National Executive
An Accountable Government, A Prosperous Nation
99
8.1 Introduction
The structure and functions of national executive was a central issue in
the debate for the new Constitution. It was the subject of wide debate and
identified as one of the contentious issues by the Committee of Experts.
It was argued that the numerous amendments to the Independence
Constitution operated to strengthen the presidency at the expense of
the other institutions of governance. The weakening of institutions led
to a Parliament which was largely a rubberstamp of the Executive; the
Judiciary was inaccessible to the majority and compliant to the executive
and electoral system became easy to manipulate.
All these weaknesses were seen to originate from lack of accountability
in executive branch that relied on ethnic patronage and had little or
no respect for human rights. Over a long time, individuals suffered
government brutality, media freedom was constrained and the economy
became vulnerable to an unpredictable political system. Monopoly of
power made the presidency extremely divisive and high stake since many
communities attach their livelihoods and economic progress to having
one of their own controlling the executive. All these factors weakened
Kenyas political culture and collective sense of nationhood.
Whereas the country realised an increasingly open democratic space
following the re-invention of multi-party system in 1992 and increased
economic growth from 2002, the essential nationhood and stability of
the State remained weak. Many observers noted that the 2007-2008
post election violence was an inevitable culmination of a fundamentally
weak political system.

The Constitution comprehensively addresses the governance challenges
under the old regime. Instead of merely reducing the presidents power,
the Constitution balances power by first enhancing the protection of
individual rights, recognition of national values, principles of leadership,
strengthening institutions including Parliament, the Judiciary, public
service and national security. The devolved system of government
will also have fundamental implications in the exercise of executive
authority. By doing this, the Constitution addresses the objectives of
comprehensive transformation by addressing the softer issues of respect
to citizens rights, nation building, and stable State structure. This
module is intended to:Understanding the Constitution of Kenya
100
explain the design of the executive under the Constitution;

outline the structure of the executive;
compare the functions of the President under the former
Constitution and the current Constitution; and
explain how the executive will be made responsible and
accountable.
8.3 The Design of the Executive

The design of the executive is defined by the source or the host of the
executive authority. Where the executive authority derives and resides
in Parliament, the system is referred to as Parliamentary System. For
instance many countries have a Prime Minister who is a Member of
Parliament as the head of government usually from the party or coalition
with the majority. In those cases the Prime Minister is expected to
appoint the cabinet from among parliamentarians - usually from his
party or coalition. In Presidential Systems, the head of the executive
is elected directly by electorate. Members of the executive are separate
from Parliament although they get approval from Parliament.
The old Constitution had a mix of parliamentary and presidential
systems of government. The President was directly elected and therefore
had direct mandate from the people. The President had to be a member
of Parliament and could only appoint Cabinet Ministers from among
sitting Members of Parliament. Cabinet Ministers were individually and
collectively responsible to Parliament and had to field questions from
Parliament on the floor of the House.
Under the current Constitution, the President is elected directly by a
majority of 50%+1. The President is the Head of State and Government.
The President exercises executive authority of the Republic, with
assistance of the Deputy President and Cabinet Secretaries.
Cabinet Secretaries (Ministers) will not be appointed from sitting
Members of Parliament. Cabinet Secretaries are accountable individually
and collectively to the President for the exercise and performance of their
functions. Partial parliamentary accountability is maintained by the
requirement that Cabinet Secretary will be called upon by Committee
of the National Assembly or the Senate when required to answer any
question under their responsibility. Cabinet Secretaries are also required
to provide Parliament with full and regular reports on matters under
their control.
101 Elewa Katiba, Jenga Nchi
The advantage of this structure is that it provides a centralised structure

of the executive that benefits from popular mandate. Therefore the
executive is expected to operate efficiently and take quick decisions in
executing operations of government. Secondly, the President has a wide
option to incorporate professionals who may not wish to be members of
Parliament in running the government. The choice of the cabinet is one
of the most important/signigficant decisions a President will make.
The downside is that the presidency will still remain a high stakes
political office since people are accustomed to attach their destiny to
the office. The electoral requirement of 50% + 1 is expected to ensure
effective popular mandate. Article 130(2) provides that the national
executive shall reflect regional and ethnic diversity of the people of
Kenya. Further, since the executive is removed from Parliament, the
system potentially reduces opportunity for consultations and consensus
on major government issues thereby minimising responsiveness of
the government. The advantage of the Constitution is that there are
numerous ways of addressing these issues.
8.4 The Structure of the National Executive

The national executive consists of the President, the Deputy President
and Cabinet (Article 130).
8.4.1 The President
The President performs numerous functions summarized below as
follows (Article 131):8.4.2 The President as the Head of State
The Presidency is a special office in terms of functions, status and
symbolism. As the Head of State the President embodies executive
authority of the Republic and is expected to promote and be a symbol
of national unity. The President is the leader of the nation as a people
with collective heritage and vision despite the diversities. He is expected
to use the benefit of the popular mandate to positively influence how
Kenyans of different groups relate with each other and with the State.
The Head of State functions are essential to the nation building objectives
of the Constitution. The Constitution expects the President to earn,
sustain and manifest respect based on:Understanding the Constitution of Kenya
102
respecting, upholding and safeguarding the Constitution;

safeguarding the sovereignty of the Republic;
promoting and enhancing unity of the nation;
promoting respect for the diversity of the Kenyan people and
communities of Kenya; and ensuring the protection of human
rights and fundamental freedoms and the rule of law.
Specific functions of the Head of State include: Commander in Chief of the Kenya Defence Forces;
Chairperson of the National Security Council;
addressing each newly elected Parliament;
addressing the nation once every year on all measures taken
and progress achieved in the realisation of national values.;
reporting to Parliament regarding progress in fulfilling
international obligations;
receiving foreign diplomatic and consular representatives;
conferring honours in the name of the people and the Republic;
declaring a State of emergency
declaring war with the approval of Parliament.
8.4.3 The President as the Head of Government
Through the popular mandate, the President manifests the authority
of the whole nation to form and run the government. The President is
elected based on policies and plans which he intends to achieve during
his term. Therefore the Constitution gives the office authority. The
Constitution also makes him accountable in discharging his functions.
As the Head of Government, the President will undertake the following
roles: nominate and, with the approval of the National Assembly,
appoint, and may dismiss the: Cabinet Secretaries;
Attorney General;
Principal Secretaries;
High Commissioners, Ambassadors and diplomatic and
consular representatives;
State or public officers as provided by the Constitution.
chair Cabinet meetings;
direct and coordinate the functions of ministries and government
departments; and
assign responsibilities to Cabinet Secretaries.
8.5 How the Constitution makes the President Accountable

8.5.1 Through Elections
The President is accountable to the nation through elections. The
Presidential term is five (5) years and she/he may be replaced or reelected. By restricting the terms to two (2), the President cannot rule for
more than ten (10) years.
8.5.2 Checks on the Functions of the President
The Constitution also makes the President accountable by requiring
particular decisions to be subject to approval by another office in this
regard.
appointments of Cabinet, Attorney General, Principal Secretaries
and Ambassadors will be subject to approval by the National
Assembly;
most legislation requiring appointments to other offices in the
public service require selection by a panel before nomination,
approval by the National Assembly before appointment by the
President;
the President cannot declare state of emergency unless approved
by the National Assembly. The Supreme Court may also make a
decision on declaration of the state of emergency;
the President cannot declare war without approval of Parliament;
the President can only exercise power of mercy in accordance with
the advice of Advisory Committee as required by the Constitution.
National values and principles of government bind all State
organs, State officers and all persons when they apply or interpret
the Constitution; enact, apply or interpret any law; or makes or
implements public policy; and
the bill of rights applies to all law and binds all State organs and
all persons. In undertaking his roles the President must respect
the bill of rights; and
8.6 Removal from Office

The President may be removed from office if he/she is unable to perform
the functions of the office by reason of physical or mental incapacity.
The process requires support of the motion by a majority of all members
of the National Assembly. Thereafter, a tribunal is set up by the Chief
Justice to inquire into the matter and its decision shall be final (Article
144).
104
The President may also be removed from office through the process of
impeachment. Impeachment is a formal trial where the grounds for
removal are presented and discussed. This process requires support
of the relevant motion by two thirds of the members of the National
Assembly and the Senate. The grounds for impeachment include gross
misconduct and violation of the Constitution and law including crimes
against national and international law. The Senate has the final vote in
impeachment of the President (Article 145).
8.6.1 Procedure Following Vacancy of the President
When the office of the President becomes vacant, the Deputy President
will hold the office as President for the remaining part of the term. Where
the office of the Deputy President is vacant or the Deputy President is
not able to take the office of the President, the Speaker acts as President
and an election will be held within sixty (60) days (Article 146 (2).

8.7 The Deputy President
The Deputy President is the principal assistant of the President and

deputises for the President (Article 147). The Deputy President is not
elected directly by the voters but is a running mate of the presidential
candidate. All procedures for taking of office and removal are similar to
those of the President. In case a vacancy occurs, the President nominates
another person who has to be approved in by the National Assembly.
8.8 The Cabinet

The Cabinet consists (Article 152): the President;
the Deputy President;
the Attorney-General; and
not fewer than 14 and not more than 22 Cabinet Secretaries
(equivalent in the former Constitution Cabinet Ministers). A
Cabinet Secretary must not be a Member of Parliament.

8.9 Other Offices
Other important offices include: Secretary to the Cabinet; (Article 154);

Principal Secretaries (equivalent in the former Constitution

Permanent Secretaries) (Article 155).
Attorney-General
Director of Public Prosecutions
The functions of the Attorney General are (Article 156): principal legal adviser to the government;
represents the national government in court except for
criminal proceedings;
performs any other functions conferred on the office by an Act
of Parliament or by the President;
appears as a friend of the court in order to assist the court in
reaching a fair and just decision in any civil proceedings; and
promotes, protects and upholds the rule of law and defends
the public interest.
Director of Public Prosecutions
The functions of the Director of Public Prosecutions are to (Article 157): direct the Inspector-General of police to investigate any
information or allegation of criminal conduct;
institute and undertake criminal proceedings against any
person;
take over and continue any criminal proceedings instituted
or undertaken by another person or authority, with the
permission of the person or authority; and
discontinue at any stage before judgment is delivered any
criminal proceedings with the permission of the court.
The Director of Public Prosecutions enjoys security of tenure and does
not require the consent of any person or authority to commence criminal
proceedings. In the exercise of the above functions, the Director of Public
Prosecutions is not under the direction or control of any person or
authority.
106
Recap of the Module
By going through this module it is expected that the trainer will:1. form an understanding of the significance of the presidency in the
Kenyan constitutional framework;
2. appreciate the structure of the executive;
3. understand how the executive is made accountable through checks
and balances
4. assess the working of government; and
5. be able to assess and explain the functioning of the executive.
Reference
Chapter 9.
NOTES
108
MODULE 9:
Structure of the State:

The Judiciary
Justice be Our Shield and Defender
9.1 Introduction
This module gives a broad account of the Judiciary, the principles of
judicial authority and the institutional framework against a background
of judicial reforms. The Judiciary is the arm of government that is charged
with the administration of justice. In administering justice the Judiciary
interprets the laws and arbitrates disputes between differing sides. This
module appreciates that ina democracy, the role of Judiciary is crucial
as it is considered afaithful keeper of theconstitutional assurances. An
independent and impartial Judiciary can make the legal system vibrant
through judicial pronouncements that are creative and that promote
social justice. An independent Judiciary allows for good governance to
prevail in society by creating and sustaining a responsive judicial system
which delivers justice on merit in a fair and unbiased manner.

This module is intended to create an understanding of the following:1. The key concepts of judicial authority
2. Principles of judicial authority
3. The Kenya judicial framework/system of court
4. Judicial offices and officers (appointment, tenure and removal)
5. The Judicial Service Commission
9.3 Independence of the Judiciary

Judicial independence protects the judiciary from improper influence
likely to emanate from other branches of government, or from private
or partisan interests. Judicial independence creates an environment for
the courts to decide matters before them fairly, on the basis of facts
and in accordance with the law, without any restrictions, inducements,
pressures, threats or interference, from any quarter. Independence of the
Judiciary requires the Judiciary to guarantee that judicial proceedings
are conducted fairly and that the rights of the parties are respected.
Independence of the Judiciary is also guaranteed through:i. provision of adequate resources to enable the Judiciary to properly
perform its functions;
ii. recruitment of judicial officers with integrity, ability and appropriate
training and qualifications in law;
iii. adequate remuneration and better conditions of service;
iv. personal immunity of judicial officers from civil suits for acts or
omissions performed in the exercise of their judicial functions; and
110
v. use of disciplinary, suspension or removal proceedings that are in

accordance with established standards of judicial conduct and the
rules of natural justice.
The Constitution safeguards the independence and integrity of the
Judiciary. The Judiciary operates without undue influence from any
other source. Judges enjoy security of tenure and they cannot be
removed from office except as provided by written law. Judicial officers
are protected from the risk of being sued or prosecuted for what they do
in their capacity as judicial officers thus strengthening the independence
of the Judiciary.
The Constitution seeks to reform the Judiciary and to promote access to
justice through provision of sufficient funding to the Judiciary and the
establishment of a Judiciary Fund (Article 173) that will be used for
purposes necessary for the discharge of the functions of the Judiciary.
9.4 Principles of Judicial Authority

The Constitution has set principles to guide the exercise of judicial
authority by the courts and tribunals (Article 159). The principles are: justice will be done for all regardless of status in the society. This
principle secures access to justice for all including the vulnerable
groups of our society;
justice shall not be delayed. This principle appreciates that
justice delayed is justice denied and it seeks to provide for speedy
determination of cases that are filed in court;
alternative forms of dispute resolution are recognized and
promoted. This will greatly facilitate the decongestion of the courts.
It also promotes other forms of dispute resolution mechanisms
which tend to be faster, friendlier, have fewer technicalities
and that have mechanisms which enhance or promote better
relationship between the disputing parties;
justice
be
administered
regardless
of
procedural
the
technicalities.
While
the
ion safeguards
The Constitut
the
of
y
it
and integr
subject of law is technical,
independence
es
at
er
e Judiciary op
the Constitution guarantees
Judiciary. Th
an
om y
e influence fr
without undu
that the technicalities will not
other source.
interfere with a partys right
to receive justice; and
the Judiciary is independent and may not to be controlled or be

subject to direction of any person or authority.
9.5 Structure of the Judiciary

The Judiciary consists of:1. the Chief Justice;
2. the Deputy Chief Justice;
3. judges of superior courts (the Supreme Court, the Court of
Appeal the High Court and Superior Courts);
4. the Chief Registrar - who is the chief administrator and
accounting officer of the Judiciary;
5. magistrates;
6. other judicial officers; and
7. staff.
The Judiciary consists of four levels of courts:
1. the Supreme Court;
2. the Court of Appeal;
3. the High Court, Land and Environment Court and the Industrial
Court; and
4. the Subordinate Courts.
9.6 Supreme Court

This is the highest court of the land established by the Constitution
(Article 163). The Supreme Court consists of:1. the Chief Justice, who is the President of the court;
2. the Deputy Chief Justice, who deputises for the Chief Justice
and is the Vice-President of the Court; and
3. five (5) other judges
The Supreme Court is considered properly constituted if it is composed
of five (5) judges. The Supreme Court has:1. the original and final authority to hear and determine disputes
relating to the elections to the office of President and
2. in any case involving either, the interpretation of the Constitution
or matters of general public importance, hears and determines
appeals from:
112
the Court of Appeal and

any other court or tribunal
The Supreme Court may give an advisory opinion at the request of the
national government, any State organ, or any county government with
respect to any matter concerning county government. All courts other
than the Supreme Court are bound by the decisions of the Supreme
Court.
The judges of the Supreme Court are appointed from persons recommended
by the Judicial Service Commission. However appointment of the Chief
Justice and Deputy Chief Justice must be approved by Parliament.
9.6.1 The Court of Appeal
The Constitution establishes the Court of Appeal (Article 164) which
consists of not less than twelve (12) judges one of whom is elected as the
President of the Court of Appeal by the judges themselves.
The Court of Appeal has jurisdiction to hear appeals from:
1. the High Court; and
2. any other court or tribunal.
9.6.2 High Court
The High Court is made up of the number of judges prescribed by an
Act of Parliament (Article 165). On appointment, the judges elect from
among themselves a Principal Judge of the High Court. The High Court
deals with:1. criminal and civil matters;
2. determination of individual rights and fundamental freedom
questions;
3. appeal from a decision of a tribunal;
4. the interpretation of the Constitution;
5. any other jurisdiction, original or appellate, conferred on it by
legislation; and
6. supervision over the subordinate courts.
9.7 System of Courts

The Constitution provides that Parliament will establish courts with
the status of the High Court to hear and determine disputes relating
to employment and labour relations and the environment and land

(Article 162). Parliament established the Environment and Land Court
to hear and determine disputes relating to the environment and the use,
occupation of, and title to, land and the Industrial Court to hear and
determine disputes relating to employment and labour relations. This
court will help reduce back log in the other courts and will develop skills
and specialization, promote greater understanding and appreciation of
the legal area of speciality and promote greater understanding of the
specific issues.
9.7.1 Subordinate Courts
The subordinate courts (Article 169) are:1. the Magistrates courts;
2. the Kadhis courts;
3. the Courts Martial; and
4. any other court or local tribunal as may be established by an Act
of Parliament
The jurisdiction of a Kadhis court is limited to the determination of
questions of Muslim law relating to personal status, marriage, divorce or
inheritance in proceedings in which all the parties profess Islamic faith.
9.7.2
Appointment of the Chief Justice, the Deputy Chief Justice

and other Judges
The Chief Justice and the Deputy Chief Justice are appointed in
accordance with the recommendation of the Judicial Service Commission
and subject to approval of the National Assembly. All other judges are
appointed in accordance with the recommendation of the Judicial Service
Commission (Article 166). The judges must be persons who possess
high moral character, integrity and impartiality with relevant academic
and professional experience.
It is worth noting that all judges retire at the age of seventy (70) or at
own instance upon attaining sixty five (65) years. The Chief Justice
shall hold office for a maximum of ten (10) years.
9.8 Removal from Office

A judge may be removed from office on the grounds of: inability to perform the functions of the office due to some
physical or mental incapacity;
114
breach of code of conduct;

bankruptcy;
incompetence; or
gross misconduct or misbehaviour.
Article 168 of the Constitution provides that the removal of a judge may
be initiated either by the Judicial Service Commission or on the petition
of any person. Once satisfied that there is a ground for the removal of
the judge, the Judicial Service Commission sends the petition to the
President. The President shall within fourteen (14) days of the receipt of
the petition appoint a tribunal to investigate the judges conduct.
9.9 The Judicial Service Commission

The Constitution provides for the Judicial Service Commission (Article
171) made up of the Chief Justice, the Attorney General and nine
(9) other members. The distinctive feature of this Judicial Service
Commission is that unlike the previous Judicial Service Commission,
the current establishment incorporates membership from the statutory
body responsible for regulation of advocates (the Law Society of Kenya)
and a woman and a man, both non lawyers, who represent the public.
The Chief Registrar is the Secretary of the Commission.
The functions of the Judicial Service Commission are:
recommending to the President persons to be appointed as
judges;
reviewing and making recommendations on the conditions
of service of judges and judicial officers, (other than their
remuneration) and the staff of the judiciary;
facilitating continuous education and training of judges and
judicial officers;
appointing and receiving complaints against and investigating
and removing from office registrars, magistrates and other
judicial officers;
preparing programmes for continuing education and training of
judicial officers; and
advising the national government on improving efficiency in the
administration of justice.
Recap of the Module
By the reading this module the trainer is expected to:

1. appreciate the key concepts of judicial authority
2. outline the principles of judicial authority
3. appreciate the Kenya Judicial Framework or the System of the Kenyan
Courts
4. outline the functions of Judicial Service Commission
Reference
Chapter 10.
Environment and Land court Act,
Industrial Court Act
116
MODULE 10:
Public Service
Huduma Bora ni Haki Yangu
10.1 Introduction
This module seeks to highlight the role of public service as the principle
organ of service delivery by the government and identifies elements that
support public sector reforms. The Constitution presents an opportunity
for reforms and change of values both within the public and private
sector. However, the Constitution acknowledges that through the
public service, the government establishes control, presence, authority
and visibility of the State. Through the public service, the government
is visible to its citizens. The Public service is citizens direct line to
government and it forms a substantial link between the government and
its people. For the Government of Kenya to effectively implement the
Constitution and realise Vision 2030, an effective and responsive public
service is essential.

This module is intended to create an understanding of the following:

Values and principles of the public service;

The Public Service Commission;
Staffing of county governments; and
The Teachers Service Commission.
10.3 Values and Principles of Public Service

The government provides certain essential services through its public
service. To maximize efficiency, the Constitution has set high standards
for the public service through established values and principles (Article
232). These values and principles of public service include:

high standards of professional ethics;

efficient, effective and economic use of resources;
impartial, fair and just provision of services;
involvement of the people in the process of policy making;
accountability and responsibility of public officers for
administration of actions taken;
fair competition and merit in appointment to public office and
promotion;
representation of the diverse communities of Kenya; and
affording adequate and equal opportunities for appointment,
118
training and advancement at all levels of government for men

and women, members of all ethnic groups and persons with
disabilities.
These principles bind all State organs in both the national and county
governments and all State corporations.
10.4 The Public Service Commission

The Constitution establishes the Public Service Commission (Article
233). The Commission is mainly an organ that serves the national
government and plays only a very limited role in respect of county
governments. The only power that the Commission exercises over the
county government public service is
in the hearing and determination of
ficiency, the
appeals by county public officers from
To maximize ef
s set high
the county public service boards.
Constitution ha
e
The Public Service Commission is
responsible for various functions
including:-
ic
the public serv
standards for
d
an
ished values
through establ
principles
establishing and abolishing

offices in the public service;
appointing persons to hold or act in those offices and to confirm
appointments;
exercising disciplinary control and removing persons holding or
acting in those offices;
promoting values and principles of public service;
ensuring that public service is efficient and effective;
reviewing and making recommendations to the national
government in respect of conditions of service, code of conduct
and qualification of officers in the public service; and
evaluating and reporting to the President and Parliament on the
extent to which the public principles are complied with.
10.5 Protection of the Public Officer

The Constitution protects public officers who discharge their duties
diligently by providing that they shall not be victimized or discriminated
against for performing their functions of office in accordance with the law
(Article 234). Any disciplinary action that leads

to dismissal, removal from office or demotion in
rank must follow the due process of law.
10.6 Staffing of County Governments
ion
The Constitut
ficers
of
ic
bl
protects pu
their
e
who discharg
tly
duties diligen
Article 235 provides that within a framework

of uniform norms and standards to be established by law, a county
government will be responsible for:1. establishing or abolishing county public offices,
2. appointing and confirming appointments of public officers in
county governments and
3. exercising disciplinary control of officers acting in those offices.
10.7 The Teachers Service Commission

The Constitution establishes the Teachers Service Commission (Article
237) whose functions include registering, recruitment, and discipline of
teachers. The Commission, also, reviews the standards of education and
training and advises the national government as appropriate.
By reading this module the trainer is expected to have a firm understanding

of and ability to:1. appreciate the values and principles of the public service;
2. outline the functions Public Service Commission and the Teachers
Service Commission.
Reference:
Chapter 13
120
MODULE 11:
National Security
National Security, my protection
11.1 Introduction
National security involves the protection of a countrys citizens, secrets,
integrity and maintaining elements that support the survival of the
State. Measures taken to ensure national security include maintaining
an effective defence force and using intelligence services to detect, defeat
or avoid threats. Therefore national security is the ability to preserve the
nations physical integrity and territory from external disruption; and to
control its borders.
This module is intended to create an understanding of the following:
1. The Principles of national security;
2. Organs of national security;
3. The Kenya Defence Force ;
4. The National Intelligence Service; and
5. The National Police Service
6. The role of the National Security Council
11.3 Principles of National Security
The Constitution observes that National Security is the protection of the
people against internal and external threats and the upholding, therefore,
of the integrity and sovereignty of the people (Article 238). Security
is a prerequisite that supports the enjoyment of political, social and
cultural rights. Businesses, infrastructure and other social amenities
cannot develop or thrive in an environment that breeds insecurity. The
principles of National Security are: national security is subject to the authority of the Constitution;
national security is subject to the authority of Parliament;
that the pursuit of national security will comply with and respect
the rule of law, democracy and human rights;
that national security will respect the diverse culture of the
communities within Kenya; and
that recruitment by national organs will reflect fair and just
representation of the Kenyan people.
122
11.4 National Security Council

The National Security Council is established under Article 240. Among
the functions of the council is to:i. exercise supervisory control over national security organs;
ii. intergrate the domestic, foreign and military policies relating to
national security in order to enable the national security organs
cooperate and function effectively
iii. asses and appraise the objectives commitment and risks to
the Republic in respet of actual and potential national security
capabilities.
The council must table a report to parliament annually on the State
of the security of Kenya. The council with approval of Parliament may
deploy national forces outside Kenya for peace support or other support
operations. Also, it may approve the deployment of foreign forces in
Kenya.
11.5 National Security Organs
The Constitution provides for national security and creates national
security organs which comprise of the following institutions (Article
239):i. the Kenya Defence Forces;
ii. the National Intelligence Service; and
iii. the Police Service Commission
The National security organs are subordinate to civilian (the peoples)
authority. In performing their functions, the National Security Organs
will not (Article 239 (3):i. act in a partisan manner- this means that their actions shall at
all times be guided by fairness and equity;
ii. further political interest or political cause they must exercise
political neutrality;
iii. prejudice a political interest or political cause that is legal- they
shall exercise fairness; and
iv. set up paramilitary organizations that purport to guarantee
national security except as provided by law.
11.5.1 The Kenya Defence Forces

The Kenya Defence Forces consist of (Article 241):
1. the Kenya Army;
2. the Kenya Air Force; and
3. the Kenya Navy.
The overall policy and control of the Kenya Defence Forces is conducted
through the Defence Council which consists of the Cabinet Secretary
responsible for Defence, the Chief of the Defence Forces, the three
Commanders of the Defence Forces and Principal Secretary for Defence
(Article 241 (6).
11.5.2 The National Intelligence Service
The National Intelligence Service is responsible for security intelligence
and counter intelligence to enhance national security (Article 242). This
means that it is the institution that is responsible for:1. detecting and identifying any threat or potential threat to national
security;
2. advising the President and the government of any threat or
potential threat to national security;
3. safeguarding and promoting national security, national interests,
sovereignty and the economic wellbeing of the republic and its
citizens within and outside Kenya; and
4. facilitating security vetting and security clearance of persons
seeking State positions, Kenyan citizenship, work permits and
other documents of security interest.
11.5.3 The National Police Service
The Constitution seeks to manage the Kenya Police Service and
Administration Police Service in one national institution, the National
Police Service headed by the Inspector General of police. The two
services have retained their autonomy and the Kenya Police and the
Administration Police shall each be headed by a Deputy InspectorGeneral of the National Police Service (Article 245).
124
Fig 6: National Police Service
Inspector
General
Deputy
Inspector
General - Kenya
Police
Deputy
Inspector
General
Administration
Police
11.5.4 Objects of the National Police Service

The Constitution sets very high standards for the National Police Service.
The Service is required to (Article 244):i. set and maintain very high standards of professionalism and
discipline;
ii. promote accountability in the service;
iii. comply with the bill of rights; and
iv. train their officers to the highest possible standards of
competence.
11.5.5 Functions of the National Police
The functions of the National Police include to: maintain law and order;
preserve peace and protect life and property;
prevent and detect crime;
arrest offenders;
create and maintain security among communities;
aid individuals who are in danger of physical harm, such as the
victims of violent attack; and
resolve conflict, whether it be between individuals or groups.
11.6 The National Police Service Commission
The Constitution establishes the National Police Service Commission to
supervise the National Police Service (Article 246). Some of its functions
include:
(a) to develop fair and clear disciplinary procedures;

(b) exercise disciplinary control over officers in the Service;
(c) promote the values and principles throughout the Service;
(d) ensure efficient and effective service; and
(e) develop policies and provide oversight over training in the
Service.
Recap of the Module
of and ability to:1. Outline the principles of National Security;
2. Discuss the organs of National Security;
3. The role of the National Security Council
Reference:

Chapter 14
126
MODULE 12:
Commissions and
Independent State
Offices
Enhance Public Trust in State Organs
12.1 Introduction
The Constitution has established commissions and independent offices
to support the government and particularly to ensure that the processes
of governance are transparent and accountable. This module seeks to
facilitate an understanding of the characteristics of commissions and
independent offices, their objects and functions.

This module is intended to create an understanding of the following:1. Characteristics of commissions and independent offices;
2. Objects of commissions and independent offices;
3. Functions of commissions and independent offices;
12.2.1 Characteristics of Commissions and Independent Offices
Commissions and independent State offices are created to improve checks
and efficiency in governance and to promote rule of law. Commissions
and independent offices conduct oversight functions. They educate
and inform the public and allow the public to participate in shaping
government policy. They have the following unique characteristics:i. expertise- members are appointed to provide essential expert
insights to the commission and they are able to address complex
and highly technical matters;
ii. impartial - due to their independent nature commissions and
independent offices are assumed to be resistant to external
pressures with the ability to resolve problems; and
iii. term limits- the term/duration of service for a member of a
commission and independent offices is determined and limited.
12.2.2 Objects of Commissions and Independent Offices
The Constitution creates independent
offices and commissions (Article 249) to:1. promote the sovereignty of the
and
Commissions
people- the commissioners and
e
ate Offices ar
Independent St
independent officers are expected
ks
prove chec
created to im
to respect and strictly uphold and
in governance
and efficiency
protect the peoples sovereignty
through their watchdog functions.
They have a duty therefore to
128
always secure the peoples interest in the performance of their

functions;
2. secure observance of democratic values- the commissions are
required to ensure that all State organs uphold and maintain
high standards of democratic values and principles;
3. commissions and independent offices are independentthis means that in the performance of their functions, the
commissions and independent office are not subject to control
or direction from any person or authority. This means that they
can effectively perform their functions without fear or favour;
and
4. the independence of commissions also means that Parliament
shall through allocation of funds by a separate vote allocate
adequate funds to facilitate expeditious performance of the tasks
of the commissions and independent office holders.
12.2.3 General Functions and Powers Commissions and
Independent Offices
The Constitution provides that each commission and holder of an
independent office may conduct investigations, mediation and negotiation
(Article 252). Each commission or independent office has power to
recruit its own staff and perform functions allowed by legislation.
The Constitution creates eleven (11) commissions with detailed
description of functions. Each commission is to consist of at least three
and not more than nine members appointed for a single term of six years
or such shorter term as is prescribed and not eligible for re-appointment.
This helps to maintain independence of the Commission from outside
influence.
The Commissions are (Article 248);
The Kenya National Human Rights and Equality Commission,
which is charged with monitoring and offering support on issues
dealing with human rights. This
commission has been restructured;
The National Land Commission,
sion is to
Each Commis
which will manage public Land
ast three and
consist of at le
nine members
and investigates issues related to
not more than
a single term
land injustices;
appointed for
of six years
The Independent Electoral and
Boundaries Commission, which
manages elections, referenda and electoral boundary reviews;

The Parliamentary Service Commission whose function is to
provide parliamentary services and facilities;
The Judicial Service Commission whose function it is to promote
and facilitate an independent Judiciary;
The Commission on Revenue Allocation which seeks to make
recommendations concerning the basis for the equitable sharing
of revenue raised by the national government;
The Public Service Commission whose mandate is to manage
the national government public service including hiring of public
officers;
The Salaries and Remuneration Commission which will set and
reviews the remuneration and benefits of all State officers;
The Teachers Service Commission whose task is to register, hire,
deploy and discipline teachers;
The National Police Service Commission responsible for
recruitment, appointment, and discipline of persons in police
service; and
The Independent Ethics and Anti-corruption Commission which
shall ensure compliance with and enforcement of the provisions
on leadership and integrity.
Parliament has restructured the Kenya National Human Rights
and Equality Commission into three separate Commissions. These
commissions are: the Kenya National Commission on Human Rights,
the Commission on Administrative Justice and the Gender and Equality
Commission.
The independent offices are the Controller of Budget and the AuditorGeneral (Article 248 (3).
The Controller of Budget is appointed by the President with the approval
of the National Assembly for a non renewable term of eight (8) years
(Article 228). The Controller of Budget is to oversee the implementation
of the budgets of the national and county governments by authorising
withdrawals from public funds. The Controller of Budget shall not
approve any withdrawal from public funds unless satisfied that the
withdrawal is authorized by law.
The Auditor-General is appointed by the President with the approval
of the National Assembly for a non-renewable term of eight (8) years
(Article 229). The function of Auditor-General is to audit and report on:Understanding the Constitution of Kenya
130
the accounts of the national and county governments;

the accounts of all funds and authorities of the national and
county governments;
the accounts of all courts;
the accounts of every commission and independent office except
its own accounts;
The accounts of the National Assembly, the Senate and the
county assemblies;
the accounts of political parties funded from public funds;
the public debt; and
the accounts of any other entity that legislation requires the
Auditor-General to audit.
12.3 Reporting by Commissions and Independent Offices

The Constitution requires each commission and independent office to
submit a report to the President and Parliament at the end of each financial
year (Article 254). However the President or the National Assembly or
the Senate may require the commissions and independent offices to
submit a report on a particular issue. The reports from commissions and
independent offices shall be published and made available to the public.
Recap of the Module

of and ability to:1. appreciate the characteristics of commissions and independent
offices;
2. outline the objects of commissions and independent offices and the
functions;
Reference:
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
15 Chapter 4 (Art. 59)

5 (Art. 67)
6, (Art. 79)
7, (Art. 88)
8, (Art. 127)
10 (Art. 171& 172)
12, (Art. 215, 216 & 230)
13 (Art. 233, 234 & 237)
14, (Art. 246)
12, (Art. 228 and 229)
NOTES
132
MODULE 13:
System of
Governance
Enhance Checks and Balances
13.1 Introduction
Kenya is a sovereign republic (Article 4). This means that the people and
all government institutions are governed by the Constitution and by law
and that all powers and responsibilities are exercised and limited by law
and the Constitution. The Constitution further provides that Kenya is a
multi-party democratic State founded on national values and principles
of governance. There are two levels of government; at the national and
county level (divided into forty seven (47) counties). These two levels of
government are distinct and inter-dependent.
1.
This module represents the new system of governance that is

envisaged in the Constitution.
2. It demonstrates the distribution of functions between the
national government and the county governments.
3. It is expected that at the end of this module the reader is able
to distinguish the various functions performed by the various
levels of government.
The Constitution establishes two levels of government, namely, the
national government and the county governments. The two levels are
distinct (separate) but interdependent (interlinked) and consultative and
operate through mutual cooperation. The Constitution gives each of the
levels of government specific functions to perform.
The functions of the National
Government are:-
The functions of County Governments

are:-
National policy formulation and

approval in the following areas:
Foreign affairs, foreign policy
and international trade
Language policy and
promotional of official and
national languages
National economic policy and
planning
Monetary policy, banking, the
incorporation and regulation
of banking, insurance and
financial corporations
Labour standards
Agriculture
County health services including

health facilities and pharmacies,
ambulance services, promotion of
primary health care, licensing of
undertakings that sell food to the
public, veterinary services (excluding
regulation of the profession,
cemeteries, funeral parlours and
crematoria, (cemeteries) and refuse
removal and solid waste disposal
134

Government are:-

are:-
Consumer protection including

standards for social security
and professional pension plans
Education
Construction and maintenance
of other roads by counties
Housing
General principles of land
planning
Health
Agricultural
Veterinary
Energy
Tourism
Control of air and noise pollution and

public nuisances
Cultural activities, public
entertainment and public amenities
including betting, casinos and other
forms of betting, racing, liquor
licensing, cinemas, video shows and
hiring, libraries, museums, sports
and cultural activities and facilities,
county parks, beaches and recreation
facilities
National Services:
Foreign affairs and international
trade
The use of international waters
and water resources
Immigration and citizenship
National defence, Police services
and correctional services
Courts
National planning
Monetary services, currency,
and regulation of banking,
insurance and financial
corporations
National statistics and data on
population
Intellectual property rights
Consumer protection
County transport including county

roads, street lighting, traffic and
parking, public road transport,
ferries and harbours excluding
the regulation of international and
national shipping matters
Animal control and welfare
Trade development and regulation
including markets, trade licences
(excluding regulation of professionals),
fair trading practices, local tourism,
and cooperative societies
County planning and development
including land survey and mapping,
boundaries and fencing, housing, and
electricity, energy and gas distribution
Pre-primary education, village
polytechnics, home craft centres and
childcare facilities
Implementation of specific national
government policies on natural
resources and environmental
conservation including soil and water
conservation and forestry

Government are:-

are:-
County public works and services

including storm water management
and water and sanitation services
Fire fighting services and disaster

management
Control of drugs and pornography
Ensuring and coordinating

participation of communities at local
levels and developing the necessary
administrative capacity to facilitate
their participation
Education services including

curricula, examinations, and
granting of university charters
Universities, tertiary
educational institutions,
institutions of research,
higher learning, primary
schools, special education and
secondary schools
Promotion of sports and sports
education
Transport and
communications, including,
road traffic, construction and
operation of national trunk
roads, railways, pipelines,
marine navigation, civil
aviation, space travel, postal
services, telecommunications,
and radio and television
broadcasting
National public works
Protection of the environment
and natural resources
including fishing, hunting
and gathering, protection of
animals and wildlife and water
National referral health
facilities
Disaster management
Ancient and historical
monuments national
importance
National elections
Capacity building and
technical assistance to the
counties
Public investment
National betting, casinos and
other forms of gambling
Tourism development
136
The Constitution recognizes that there are functions, known as

concurrent functions that are allocated to both levels of government and
may, therefore, be carried out by either of the levels. These include: education;
transport;
health facilities;
public works and investment;
statistics;
disaster management;
energy regulation;
forestry;
tourism among others.
In the event, however, that there is a conflict of laws in the performance
of concurrent functions, national legislation shall prevail where the
national legislation: applies uniformly throughout Kenya;
is aimed at preventing unreasonable action by a county that is
prejudicial to the economic, health or security interests of the
country or makes it difficult to implement national economic
policy.
Where a function has not been allocated to either level of government (the
residual functions), these are presumed to be functions for the national
government.
Recap of Module
By reading this module the trainer is expected to:1. understand the various roles performed by government
2. distinguish the unique roles performed by each level of government
Reference
Chapter 1(6)
Article 186
Art. 189
Fourth schedule
NOTES
138
MODULE 14:
County Governments
Services at my Door Step
14.1 Introduction
Devolution has been noted to be one of the most transformative aspects
of the Constitution. It has also been highlighted as the one area which
requires caution in implementation. During the call for constitutional
reforms, devolution raised many mixed reactions. This was largely
based on views from those who supported or opposed devolved system
of government.
Some of the issues which arose during debate on the devolved governments
were that:
devolution will lead to the creation of completely separate selfruling units with their own rules and systems;
people from other counties will not move freely into other counties;
devolution is a source for disunity and that it will lead to imbalances
in national development since some parts of the country are better
placed;
other people were uncomfortable with drastic change owing to
being accustomed with a highly centralised structure.
However, these positions do not accurately represent the true picture of
how the county governments are established under the Constitution or
how they will operate in practice. In deed the objectives of the devolved
system under the Constitution, include among others, to reduce disunity
and enhance equitable development. It is therefore important to have a
good understanding of the objectives of the devolved system under the
Constitution; the principles which underlie them; the structures of the
county government; the relationship of county governments and national
government; the relationships and cooperation among counties; and
opportunities for public engagement.
This module is expected to: provide the information which will enable the citizens to be aware
of function and power of the county governments;
appreciate the opportunities created by the devolved systems; and
to enable the public to engage with the processes undertaken
to implement devolution and effectively engage with the county
governments.
140
Specific outcomes of the module include: to explain the objectives of the devolved system of government;
to highlight the principles and concepts which inform the design
of the devolved system;
to outline the structure functions and powers of the county
governments;
to create an understanding of the relationship between national
and county governments, and the relationships among counties;
to create an appreciation of opportunities for public participation
and engagement.
14.3 Meaning and Objectives of Devolution
Devolution means allowing or giving powers of decision making to
smaller or local units that have means to implement the decisions. In
our Constitution, the local units are called counties and the Constitution
creates forty seven (47) county governments.
The Constitution under Article 174 provides the principles of devolution
as to:1. Promote democratic, accountable and transparent exercise of
power.
Democracy, accountability and transparency are values expressed under
Article 10 of the Constitution. Devolved structures are based on election
and people participation at the local level. All county governments are
required to ensure that they maintain systems that are transparent and
that promote accountability at all levels.
2. Promote national unity by recognizing the diversity of the
people of Kenya.
The Constitution seeks to build one cohesive nation. Devolution is
expected to enhance national unity. This is achieved through the design
of devolving power to the county governments. It is also important to
understand that within the counties, the county government is expected
to promote respect for diversity.
3. Give powers of self-governance to the people and enhance their
participation in decision making in matters that affect them.
A county government must ensure that all decisions are arrived at
through consultative processes and that the people are involved in these
processes.
4. Recognize the rights of communities to manage their own affairs

and further their development. The different communities in a
county should be empowered to manage their affairs.
Self governance is a central theme of the Constitution. The government
at the national and county level should work at facilitating the people
to manage their own affairs. The people are the active participants in
determining their affairs.
5.
To protect and promote the interests and rights of minorities

and marginalized communities.
The law and the institutions of government should recognise and protect
the people who are vulnerable. The national and county government
should take positive steps in protecting and promoting rights of minorities
and marginalised communities.
6.
Promote social and economic development and ensure that

services are efficiently delivered to the people at the nearest
possible level.
A county government should where practicable ensure that resources
and services are further decentralized. Ensure fair and just sharing of
the national and local resources.
7. To facilitate the delivery of services by

State organs in the counties.
The county governments are closer to the people
and therefore expected to be more responsive to
local needs. The national State organs will provide
their services efficiently by taking advantages of
the devolved system.
e the
The people ar
ants
active particip
g
in determinin
their affairs.
8. To provide a check and balance against Government

The structures of the county governments reflect the national government.
Therefore fundamental concepts which inform the structure of checks and
balances in the national government are made relevant in the counties.
14.4 Principles and Concept of Devolution
14.4.1 Kenya is One Indivisible Sovereign Nation
The Constitution creates one indivisible sovereign nation. The preamble
which expresses the suffrage in proclaiming the Constitution, states that
we, the people of Kenya, are proud of our ethnic, cultural and religious
142
diversity and determined to live in peace and unity as one indivisible

sovereign nation. The Kenyan nation is one territory which includes all
the subdivisions.
14.4.2 Interdependence, Consultation and Cooperation
The governments at the national and county levels are distinct and
interdependent, and are expected to conduct their mutual functions on
the basis of consultation and cooperation. Effectiveness on the distinct
levels of government is expected to achieve mutual objectives. The
governments are not expected to undermine each other but perform
their functions in a manner that promotes common benefits. The
governments are expected to consult and cooperate. Where there are
disputes, it is expected that the governments will as much as possible
resolve the issues amicably or through alternative dispute resolution
(ADR) and only resort to court process as a last option.
14.5 Decentralisation & Subsidiary
Devolution is expected to facilitate decentralisation of State organs, their
functions and services from the capital. Apart from dividing authority
between two levels of government, the Constitution seeks to ensure that
functions and services are performed at the lowest unit. National State
organs are expected to ensure reasonable access to its services in all
parts of the republic. Even where a function is not expressly devolved, it
is expected that through mutual cooperation, the national government
will take measures to ensure that service delivery is decentralised so as
to be undertaken by the lower units.
14.5.1 Self Governance, Democracy and Affirmative Action
It is significant to note that devolution under the Constitution is
primarily division of power and functions. Devolution is therefore
expected to promote participatory decision making by the people who
are directly affected by such decisions. The county governments will
promote representation of women, youth and other marginalised groups
in public offices. The county governments are expected to respect the
rights of the marginalised, ensure they are consulted and that they
participate effectively in the affairs of the county. Parliament is expected
to enact legislation under Article 100 of the Constitution to ensure
representation of the marginalised.
14.5.2 Equity and Sustainable Development
Devolution of resources follows division of power and functions. The
national and county governments are expected to take positive steps

in ensuring sustainable development. The national budget will provide
for equalisation fund to support areas which have historically been
marginalised.
14.5.3 Accountability, Separation of Powers, Checks and Balances
The principles which inform the structure of the national government
are reflected in the counties. The functions which are divided or devolved
to the counties are separated among key organs at the county. The
institutions created are expected to perform their functions independently
and check each other.
14.6 The Structure of County Governments
Fig 7: The organs of County Governments
County Legislature
County
Assembly
County Executive
Governor & Deputy

Governor
County Executive
Committee
County Public
Service
14.7 County Assembly

The county assembly is the Parliament of the county. Government county
assembly members are elected by the voters during a general elections.
Members of county assembly as provided for Article 177 are: County Representative: Members elected by the registered
voters of the wards: each ward will make one electoral area and
will be represented by a county assembly member. The wards
will be determined by the Independent Electoral and Boundaries
Commission and may be reviewed periodically. In determining
144
the ward boundaries the IEBC is expected to consult interested

parties.
Special Seat Members: Since the Constitution requires that all
elective bodies to have not more than two thirds of one gender. If
this requirement is not satisfied, parties will nominate additional
members to ensure compliance with the gender proportion rule.
The number of members of marginalised groups, including
persons with disabilities and the youth.
How many members will sit in a County Assembly?
The total number of members in each county assembly will depend on
the number of wards in the county as determined by the IEBC.
(1) The IEBC applies a formula and criteria based on the population of
the County and other factors under Article 89 of the Constitution.
For instance, if Nairobi County has 17 Constituencies; according
to the formula applied Nairobi will have 85 county assembly
wards.
(2) Once the General Election is held, the IEBC will determine how
many special seats are necessary to comply with principle of
gender proportions. For instance if all elected persons in the
85 Wards are women the parties will nominate at least 29 men
in accordance with a formula set by IEBC which takes account
of their strength of elected ward representatives in the county
assembly.
(3) Parliament will also enact legislation to make provision for
additional members who will be marginalised groups, persons
with disabilities and youth. If Parliament sets a law based on
the number of wards, for instance one tenth of elected assembly
member that will make 9 for Nairobi.
Including the Speaker the total will be = 85+29+9+1 = 124
Note that the number will vary in accordance with the population
size of the County.
The Speaker: The county assembly will elect a Speaker from
among persons who are not members.
14.8 The Functions of County Assembly

The county assembly will be the legislative organ of the county responsible
for making law and overseeing work of the county executive. The main
functions include: make laws for the effective performance of the county government;
exercise oversight over the county executive organs; and
receive and approve plans and policies for the counties.
14.8.1 Law Making Power of the County Assembly
The county assembly will be the law making organ of the county
government (Article 185(1)). The scope of the law making authority of the
county assembly include any laws that are necessary for, or incidental
to, the effective performance of the functions and exercise of the powers of
the county government under the Fourth Schedule (Article 185(2)). This
sets the boundaries of legislative power of the county assembly. This
provision is important because, under the Constitution, the national
legislature retains the authority to make law for other areas, including
areas which are not specified.
Even where the county government has made law, a national legislation
on the same subject may prevail over such law if certain conditions
apply, provided that the national legislation;
is not discriminatory;
is meant to prevent unreasonable action by a county which is
prejudicial to the economic or security interests of Kenya or
other county;
or impedes the implementation of national economic policy
(Article 191).
14.8.2 Oversight of the County Executive
The county assembly is responsible for overseeing the work of the county
executive. In exercising the oversight functions the assembly is expected
to respect the principle of separation of powers and not seek to take over
or undermine the county executive. This involves:a) approving appointments by the county governor;
b) receiving and scrutinising regular reports from the county
executive committee on matters relating to the county; and
c) the management and exploitation of the countys resources;
and the development and management of its infrastructure:
this function is not limited to the work of the county executive
and may include reviewing plans from the national government
which seek to exploit resources in the county.
146
In undertaking its oversight function, the county assembly has the power
to investigate issues and has the power to call any person to appear as a
witness to give evidence or information. The powers to call evidence are
similar to the High Court powers and the assembly or its committee may
compel production of documents and direct examination of witnesses
outside the country.
14.8.3 Representation of the People
The county assembly represents the interests of the people from the
county wards, communities, diverse groups including youth, marginalised
groups and persons with disabilities.
14.8.4 Procedure of County Assembly and Public Participation
The county assemblies are governed by similar principles as the national
government. The principles of public participation apply to the work of the
county assembly. The assemblies are expected to consult the residents
in enactment of legislation and performance of their oversight functions.
A county assembly may not exclude the public, or any media from any
sitting unless in exceptional circumstances as directed by the Speaker.
14.9 County Executive
The executive authority of the county is vested in county executive
committee. The county executive committee consists of (Article 179): the county governor and the deputy county governor; and
members appointed by the county governor, with the approval of
the assembly, from among persons who are not members of the
county assembly.
The number of members of the committee shall not exceed: one-third of the number of members of the county assembly if
the assembly has less than thirty members; or
ten if the assembly has thirty or more members.
The county governor and the deputy county governor are the chief
executive and deputy chief executive of the county respectively. Members
of a county executive committee are accountable to the county governor
for the performance of their functions and exercise of their powers.
Functions of the County Executive Committees
The functions of county executive committees are to (Article 183): implement county legislation;
implement, within the county, national legislation;

manage and coordinate the functions of the county administration
and its departments;
prepare proposed legislation for consideration by the county
assembly; and
provide the county assembly with full and regular reports on
matters relating to the county.
14.10 County Governor and Deputy County Governor
The county governor is to be directly elected by the voters registered in
the county, on the same day of the general election (Article 180). Each
candidate for election as county governor nominates a person who is
qualified for nomination for election as county governor as a candidate
for deputy governor.
A person shall not hold office:
as a county governor for more than two terms; or
as a deputy county governor for more than two terms
A county governor may be removed from office on any of the following
grounds (Article 181):
gross violation of this Constitution by any other law;
has committed a crime;
abuse of office or gross misconduct; or
physical or mental incapacity to perform the functions of office
of county governor.
The office of the County Governor may also become vacant if the holder
of the office (Article 182):
dies;
resigns in writing addressed to the Speaker of the county
assembly;
ceases to be eligible, to be elected county governor;
is convicted of an offence punishable by imprisonment for at
least twelve months; or
is removed from office under the Constitution.
If a vacancy occurs in the office of county governor, the deputy county
governor assumes office as county governor for the remainder of the
term of the county governor. If a vacancy occurs in the office of county
148
governor and that of deputy county governor or if the deputy county

governor is unable to act, the Speaker of the county assembly shall act
as county governor for sixty (60) days within which election to the office
of county governor shall be held (Article 182(3)).
14.11 Relationship between National and County Governments
The governments at the two levels have significant areas of mutual
relations. They are expected to consult and cooperate in good faith in
undertaking their roles, and ensure decentralisation of services. Good
faith means that each government should have genuine willingness to
facilitate each other and approach issues objectively with respect. In
performing their functions, the governments at each level will cooperate
in exercise of their various functions.
Government at either level is to (Article 189): perform its functions, and exercise its powers, in a manner that
respects the functional and institutional integrity and status of
government at the other level;
assist, support and consult and, as appropriate, and implement
the legislation of the other level of government;
liaise with government at the other level for the purpose of
exchanging information, coordinating policies and administration
and enhancing capacity; and
co-operate in the performance of functions and exercise of
powers and may set up joint committees and joint authorities.
14.12 Transfer of Function from One Government to Another
A function of government at one level may be transferred to a government
at another level by agreement between the governments unless transfer
is prohibited by legislation (Article 187). The transferring government
has also to transfer adequate resources. In transferring the functions, the
responsible government will take account of required capacity; whether
transfer enhances accountability; and whether the functions is better
performed by one single authority. The responsibility for the performance
of the transferred function, however, throughout remains with the level
of government assigned the responsibility by the Constitution.
14.12.1 Dispute Resolution Between Governments
Disputes may occur between the national and county government or
among county governments. Governments are to make every reasonable
effort to settle disputes that may occur by alternative dispute resolution

mechanisms, including negotiation, mediation and arbitration. The
Intergovernmental Relations Act, 2012 provides for mechanism for
resolution of disputes.
The Act creates dispute resolution institutions including:1) National and county government coordinating summit
2) National assembly Senate and county assemblies
3) National and county governments technical committees
4) Council of governors.
Where disputes cannot be settled through negotiation and consultation
with the institutions outlined above the governments concerned may: Submit their dispute to arbitration; or
Go to court to resolve the dispute.
14.13 Intervention of County Operations by the National Government
Meet twice each

year
Monitoring
reports to
National
assembly,
Senate and
county
assemblies
Considers the
reports of the
summit
Makes
recommendatio
ns to the
summit
Has broad
powers
including
monitoring,
reviewing
intergovernment
al work.
May enact
legislation
Assist the
national and
county
government in
coordinating
summit in
undertaking its
roles.
Secretariat of
the summit
Establishes
sectoral
committees
Couincil of governors
President /
Deputy President
and County
National county governments technical

committees
Comprise the
National assembly; Senate and county

assemblies
National and county government

coordinating summit
Fig 8: Intervention of County Operations by the National Government

Composed of
all governors
Facilitate
information
sharing and
consultation
Facilitate
dispute
resolution
Oversee
implementatio
n of
agreements
The national government may intervene in a county government if the

county government:
is unable to perform its functions or
does not operate a financial management system that complies
with the requirements prescribed by national legislation
14.14 Suspension of a County Government
The President may defer the functions of a county government for a
maximum of ninety (90) days (Article 192(1)). The Constitution guards
against any risk of subjective exercises of this power and puts conditions
150
and procedure which must be followed. When enacted, the County

Governments Bill will make detailed procedures.
14.14.1 Grounds for Suspension
National government may suspend a county government if:1. In case of emergency arising out of internal conflict or war: this
power is applicable during emergency and therefore provisions
regarding declaration of emergency under Article 58 and 132(4) (b)
are relevant. Note that the President can only declare an emergency
in accordance with legislation. The Supreme Court may review any
decision to declare an emergency.
2. In any other exceptional circumstances: These circumstances will
be clarified by the County Government legislation.
14.14.2 Procedure for Suspension
Any person may petition the President to set up a commission to
consider suspension of the county government
The President is required to establish a commission of inquiry in
accordance with the county government legislation.
The commission inquires into the matters expeditiously and
reports to the President.
Once the President is satisfied that allegations are justified the
President submits report to the Senate within seven (7) days.
The Senate considers the report and approves or rejects the
suspension.
14.14.3 What Happens During the Suspension of a County
Government
During suspension of a county government, the national
government must make arrangements on how the functions of
the affected county government shall be performed;
Senate may, however, at any time terminate the suspension;
and
After the expiry of the ninety (90) days, elections for the relevant
county government shall be held.
14.15 The County Public Service
The county public service will be composed of persons appointed by the
county government. The county governments are responsible for:151 Elewa Katiba, Jenga Nchi
a) establishing and abolishing offices in the public office;

b) appointing persons to hold or act in those offices, and confirming
appointments; and
c) exercising disciplinary control over and removing persons or
acting in those offices.
The offices for which a county government is responsible for, however,
excludes any office which is subject to the Teachers Service Commission.
Further, any appeal in respect of county governments public service is
determined by the Public Service Commission.
The counties will undertake this function in accordance with the county
government legislation and other national legislation. The Secretary to
the county executive committee will be the head of the county public
service. There will be county public service boards to act on behalf of the
county government in establishing offices; appointing persons; county
resource planning and reporting. These powers will be exercised in
accordance with the County Governments Bill.
The Constitution also, requires that uniform principles and standards,
which are set by legislation that operate nationally, shall guide how the
county public service shall be managed.
14.16 Lower Units of Decentralisation under the County Government
Below the county, there will be the following units: cities and urban areas;
sub county;
ward; and
the county assembly may enact law to establish further
decentralisation structures, administration and operations.
Locations and sub-locations will be used as decentralisation
units until the county assembly enacts legislation.
14.17 Cities and Urban Areas
Cities and urban areas will include cities; municipalities and towns.
Municipalities may be upgraded to a city if they have a population of at
least five hundred thousand and other factors apply. Municipalities will
have a population of at least fifty thousand. A governor may declare a
town in consultation with the county executive committee.
152
The procedure for establishing cities is as follows:
municipality board makes an application to the county executive

committee;
the county executive committee approves the recommendation;
the governor constitutes an ad hoc committee to consider the
recommendation;
recommendation is sent to the county assembly which must
approve it;
after approval by the county assembly, the recommendation is
sent to the Senate; and
the Senate is empowered to approve the recommendation by a
resolution.
Management of cities and municipalities are under the county
government. The county government is required to establish a board
which will take direct charge of management of cities. The capital city
(Nairobi) will be managed as a distinct county.
14.18 Provincial Administration
Articles 262 (the Sixth Schedule) section 17 of Constitution provides
that:
within five years after the effective date, the national
government shall restructure the system of administration
commonly known as the provincial administration to
accord with and respect the system of devolved government
established under this Constitution.
The primary responsibility for restructuring the provincial administration
lies with the national government. The challenge of restructuring
provincial administration is that over the years, they have undertaken
diverse roles ranging from security; administering some decentralised
funds; planning and development; dispute resolution among others.
These functions are allocated to several departments and organs.
14.19 Public Participation in County Governments
Devolution provides opportunity for self governance. On a daily basis, the
county governments will be dealing with issues which directly touch on
the public at the local level. It is important for the public to actively engage
based on awareness and that they be encouraged to make constructive
proposals. The mechanisms for participation should ensure: effective opportunities for dialogue, consultations and debate of
issues;
that citizens access information they need to constructively
engage;
engagement in good faith with a view to achieving results and
avoid unnecessary controversy or litigation;
respecting views of minorities and marginalised groups;
mechanisms for incorporation of public views;
feedback and information to the public on the decisions taken
by their governments.
There are many areas for engagement including: accessing public appointments;
participating in formulating of county policy; draft legislation
by the executive committee for consideration in the county
assembly;
active engagement with the county government; city/
municipalities boards; the sub county structure; and the ward
units;
participating in county assembly by giving views to Committees;
participating in the county budget process;
engaging with the county governments when it considers county
planning proposals;
engaging with county assembly, executive committee, and Senate
when they consider proposals to create cities; municipalities and
towns;
engage the President, Senate and relevant commission regarding
proposals to defer the functions of the county government;
petitioning the county government; and
initiate dispute resolution mechanisms or undertake court
proceedings.
Principles of public participation in county governments are: timely access to information, data documents and information
relevant for policy formulation and implementation;
participation in formulating and implementing policies laws, and
regulations including the development proposals, projects and
154
budgets, granting permits and establishment of performance

standards;
protection and promotion of the interests and rights of minorities,
marginalised groups and communities;
respect of the roles of organised groups, civil societies; religious
organisations, community based organisations among others.
County governments will take steps to establish mechanisms for
participation including: technology based media; public fora; budget
validation fora; notice boards to announce jobs, procurements, among
others. The national and county governments will undertake civic
education in accordance with an integrated framework, standards and
curriculum.
Citizens of a county may petition the county government on any issue
under their responsibility. The county government may also facilitate a
referendum on laws that affects the county.
Recap of the Module
By undertaking this module, one is expected to:
1. Form a good understanding of the objectives and principles of
devolution;
2. Understand the structure of the county governments;
3. Appreciate ways of engaging with the county governments through
seeking appointments in the county public service, participating in
county affairs; engaging with county officials; ensuring accountability
of the county governments.
Reference:
First Schedule,
Chap. 11
Art. 235
Chapter 11
Schedule 6, part 4
Urban areas and Cities Act 2011
The Intergovernmental Relations Act 2012
NOTES
156
MODULE 15:
Public Finance
Fair, Equitable Allocation of Resources, a
Firm Foundation for Development
15.1 Introduction
The primary concern of the Constitutional provisions on public finance
is to;
support the economys efforts towards generating, saving and
investing adequate funds to sustain the needs of the country
and promote sustainable national development,
provide the authority to collect revenue, ensure that public
funds are properly applied to provide for immediate services in
the short and long term and there is capital investment which
is necessary for sustainable development in accordance with our
national vision,
ensure that national planning is properly aligned with the
objectives of promoting equity, national interest, rights based
governance and ensure economic security to as many people as
possible,
ensure the economy is properly regulated to support
accountability by removing unnecessary constraints, inspiring
growth, attracting investments and limiting opportunities for
abuse through corruption or unscrupulous dealing.
Many people have raised the concern as to whether the Constitution
soundly addresses the issues above, or whether due to the devolved
system, the many institutions created and the expansive bill of rights
can be sustained by the Kenyan economy. To address these issues the
Constitution must have the effect of inspiring growth, political stability,
confidence in the systems created and private enterprise.
This module looks at the design of the public financial system, sources
of revenue, allocation of revenue, development of the national budget,
institutional and accountability measures for public finance. The module
then assesses how the public finance system addresses the constitutional
principles and engenders public participation. The module will develop
understanding on the following areas: The principles of management of public finance;
National and county revenue;
The budget process for the national government and county
government; and
The Institutional framework for management of public finance.
158
15.3 Principles of Pubic Financial Management

The Constitution provides for establishment of a public financial
management framework that promotes national interest, national
economic stability, equitable sharing of resources, sustainable
development and sound regulatory and accountability framework. The
public financial system shall be based on the following principles (Article
201): openness, accountability and public participation: the processes,
laws and institutions charged with responsibility of managing
public finance are expected to be transparent, responsible and
ensure public participation;
promotion of an equitable society: the burden of taxation must be shared fairly: the tax system
is expected to be fair and well targeted;
national revenue should be shared equitably among national
and county governments;
national expenditure must promote the equitable
development of the country; and
national public finance must make special provision for
marginalised groups.
equitable allocation of the benefits and burdens of the economy
between present and future generations in the use of resources
and public borrowing: the economy is expected to generate, save
and invest to ensure sustainability;
principle of prudence and responsibility: decisions regarding
public finance must take into account relevant factors in the
national interest. Public financial management systems must be
responsible and integrate high degree of probity/integrity; and
financial management must be responsible, and fiscal reporting
shall be clear: tied to the principle of transparency is the obligation
to ensure adequate reporting of financial management systems
that effectively communicates to all interested parties.
15.4 National and County Revenue
15.4.1 Taxation
The primary source of revenue for the national and county governments
is taxation. Taxation is a critical issue in democratic governance. It forms
an important incidence of responsibility between the citizens and the
State. On one hand it is a direct expression of allegiance to the nation

and individual and collective duty of every person to support. On the
other hand, it is one of the crucial governmental powers in exercising the
peoples sovereignty.
The power to impose tax lies in Parliament and is exercised only through
legislation. No tax or licensing fee may be imposed, waived or varied
except as provided by legislation. The Constitution also prohibits
enactment of any law that may exclude or authorise the exclusion of
a State officer from payment of tax merely due to the office held or the
nature of work performed.
Every year, as part of the budget process, Parliament enacts the Finance
Bill which makes provisions regarding the tax system. This legislation
amends provisions in many tax laws, creates new taxes and other
charges. There exists numerous tax legislation which impose many
charges depending on the nature of the income such as income tax and
value added tax. There are also taxes which are imposed on transactions
like duty paid on import and export of goods, and stamp duty.
In imposing tax, Parliament is informed by policy considerations and
the principles outlined in the Constitution. The tax system must be
sustainable, efficiently administered, equitable, and adequate in relation
to the needs of the nation.
The competence of the national and county governments in imposing tax
is as follows (Article 209):Table 6: Taxes to be imposed by the National and county governments
National Government
County Governments
Income tax
Property rates
Value Added Tax
Entertainment taxes
Customs duties and other duties

on import and export of goods
Any other tax authorised by an

Act of Parliament.
Excise tax
Charges for Services
Charges for Services

15.4.2 Borrowing by the National and County Governments
Where the tax is not adequate to finance public spending, the government
borrows funds to supplement the economy. Usually the government
160
issues securities to create debt in the

domestic and international debt market. The
government may also issue debt securities
for policy reasons to ensure stability of the
currency and the economy. The government
may borrow money directly to finance a project
or guarantee financial obligations sought to
fund a public project.
sing fee may

No tax or licen
aived or
be imposed, w
as provided by
varied except
Legislation
The Constitution, defines public debt as all financial obligations

attendant to loans raised or guaranteed and securities issued or
guaranteed by the national government (Article 214(2)). This is
a broad definition which includes all loans directly received by the
national government, securities which include long term bonds or short
term notes, guarantees to government projects, and loans to county
government which are guaranteed by the national government.
Under the Constitution, Parliament may by legislation prescribe the
terms on which the national government may borrow; and impose
reporting requirements (Article 211). The Constitution goes further
to stipulate that either House of Parliament may by resolution request
the Cabinet Secretary responsible for Finance to present to the relevant
Committee, information concerning any particular loan or guarantee.
Such information will include facts necessary to show: The extent of total indebtness by way of principal and accumulated
interest;
Use made or to be made of the proceeds of the loan;
The provisions made for servicing or repayment of the loan; and
The progress made in the repayment of the loan.
15.4.3 Borrowing by Counties
The Constitution restricts the instances where the county governments
may borrow (Article 212). Counties may only borrow if the national
government guarantees the loan; and upon approval of the county
governments assembly. The Constitution also imposes strict reporting
obligations on the national government to publish an annual report on
the guarantees it has given each year.
By making county borrowing subject to guarantee by national government
the Constitution ensures consistency with the principles of public
finance. The Constitution seeks to ensure that revenue raising powers
of a county shall not be exercised in a way that prejudices national

economic policies (Article 219(5)). It is also important that the national
government ensures that counties get into obligations that they can
discharge.
15.4.4 The National Budget Process
The budget is the primary national policy document which stipulates
how government intends to raise and spend public funds in every
financial year. The Kenyan financial year is between July 1st of every year
and June 30th of the following year. Being a national policy document,
the Constitution provides a comprehensive framework which ensures
initiation of the budget process by the government, public participation
and approval by Parliament.

At least two months before the end of each financial year, the
Cabinet Secretary for Finance is required to submit to the National
Assembly estimates of revenue and expenditure of the national
government for the next financial year. The Parliamentary Service
Commission and the Chief Registrar of the Judiciary are also
expected to independently submit the estimates of Parliament
and the Judiciary (Article 221).
Before considering the proposed estimates, Parliament is
required to commit the proposals for detailed consideration
by a Committee of the Assembly. The Committee is expected
to facilitate public discussions and take recommendations into
account when making its report to the National Assembly.
The Judiciary and Parliaments budgets are expected to be
included in the Appropriation Bill which authorises government
spending and withdrawals from the Consolidated Funds.
15.4.5 Key Budget Legislation

Only Parliament is authorised to approve raising of revenue and charges
on the Consolidated Fund. The key budget legislation are the Finance
Bill and the Appropriation Bills. The Finance Bill makes provisions
regarding raising of revenue to finance the budget while the Appropriation
Bill authorises withdrawal of funds from the Consolidated Fund in
accordance with the annual budget.
15.4.6 Expenditure before Annual Budget is Passed
In each financial year, there is a period during which the previous
financial year has lapsed but the subsequent budget or Appropriation
162
Bill has not been passed by Parliament. If there is no interim mechanism

to authorise restricted withdrawals from the Consolidated Funds, critical
government work may grind to a halt. The Constitution therefore gives
Parliament limited power to authorise withdrawals from the Consolidated
Fund. Such power can only be exercised if the money sought to be
withdrawn (Article 202(2):a) is for the purpose of meeting expenditure necessary to carry on
the services of the national government until the Appropriation
Act is enacted;
b) must not exceed 50% of the estimates tabled in Parliament; and
c) must be itemised in accordance with the votes for which they
were withdrawn in the Appropriation Act.
15.4.7 County Budget Process
The County Budget is based on the Annual Division and Allocation of
Revenue Bills which are approved by Parliament every year (Article
224). The Division of Revenue Bill divides revenue raised by the national
government among the national and county levels of government. The
County Allocation of Revenue Bill divides the revenue among counties
in accordance with the criteria approved by the Senate every five years
based on recommendations of the Commission on Revenue Allocation.
Once Parliament passes the Division of Revenue Bill, each county is
required to prepare and adopt its own annual budget and appropriation
Bill. The County Annual Budget and Appropriation Bill are prepared in
similar format and according to the same procedure applicable for the
national budget. The county assemblies will consider and approve the
county budgets.
15.5 Public Financial Accountability: Control, Reporting and Audits
All money raised or received by national government shall be paid
into the Consolidated Fund unless certain sums are excluded by a
law passed by Parliament. Money cannot be withdrawn from the Fund
unless Parliament approves the expenditure and the Controller of Budget
approves the withdrawal (Article 206(3)).
Each of the counties is required to establish a County Revenue Fund
(Article 207). All money raised or received by the county government
shall be paid into this Fund unless Parliament, by law provides that
certain moneys should not be paid into the Fund. The county assembly
must approve the expenditure of funds designated for various purposes

and the Controller of Budget must approve the withdrawal.
The Constitution also establishes a Contingencies Fund from which
advances shall be made if the Cabinet Secretary responsible for Finance is
satisfied that there is an urgent and unforeseen need for the expenditure
for which there is no other authority available (Article 208).
County governments are entitled to at least 15% of the fair and just
share of the revenue raised nationally. Once every 5 years, the Senate
shall determine the allocation among counties of their share of national
revenue. Senate shall consider the submissions made by all stake
holders.
All public funds are controlled through the Controller of Budget and are
also subjected to audit by the Auditor General. Parliament is further
mandated to enact a law to:
provide for the establishment, functions and responsibilities of
the national treasury;
to ensure both expenditure control and transparency in all
governments;
require the keeping of financial records and the auditing of
accounts of all governments and other public entities;
prescribe other measures for securing efficient and transparent
management of public funds;
designate an accounting officer in every public entity at the
national and county level of government; and
prescribe how procurement and asset disposal shall be
implemented.
The accounting officer of a national public entity is accountable to the
National Assembly for its financial management, and the accounting
officer of a county public entity is accountable to the county assembly
for its financial management.
164
Recap of the Module
By reading this module the trainer is expected to:1. Outline the principles of public finance
2. Appreciate the sources of revenue for the national and county
governments
3. Understand the budget making process for the national and county
governments
3. Appreciate the institutional framework for management of public
finance
References
Chapter 12, art.
203, and 204, part 3,
part 5 and part 6
NOTES
166
MODULE 16:
Implementation of
the Constitution
My Destiny is Finally Within my Horizons
By accepting the new Constitution, Kenyans ushered in a new republic.

It is a new republic because we have created new systems, laws, values
and institutions which we believe should govern our society. We are
a new society under a new system of governance. We have accepted
our common heritage and expressed our collective will to build one
progressive society despite our diversities. The ratification of the
Constitution through the referendum is based on, and is, an expression
of our common acceptance of this new society.
The task of building the new Kenya where as many as possible are happy,
and people, have opportunity and feel secure and confident to explore
their potential, requires: appreciating our common heritage and focusing on Kenyas
future;
changing attitudes of every person;
enacting new laws and amending old ones to align them with the
Constitution and the values of the new society;
creating new institutions and aligning old ones with the new
systems;
active participation through awareness, vigilance, critical but
constructive engagement, creating a culture of willingness to
build and sustain our society based on respect to the Constitution
and the law.

This module is expected to create an understanding of: legistration required for a seamless transition to the new order;
transitional arrangements regarding Constitutional transition;
policy and institutional framework for Constitutional
development;
how transitional will be effected.
16.2 Transitional Arrangements Under the Constitution

The current Constitution came into force with a recognition that it
is not operating in a vacuum. It is to be implemented in phases. The
transitional phase runs from 27th August, 2010 to 26th August 2015. It
places clear, defined measures, distinct time lines and institutions to
facilitate transition.
168
The Constitution suspends the implementation of a number of its

provisions. The provisions on representation, Parliament, the National
Executive and the devolved government are put aside until the first
general elections under the Constitution are carried out. The elections
are nonetheless, to be carried out using the provisions of the new
Constitution.
16.3 Existing Laws

The Constitution allows for the continuation of all laws in existence,
including international rights and obligations until such a time that
they are systematically brought into harmony with the Constitution.
However, Parliament is mandated to enact a series of legislation within
specified time frames.
16.4 Mandatory Legislation and Timelines

Within a period of five years, from the date of promulgation of the
Constitution, it is envisaged that Parliament together with all the
relevant organs will have appropriately processed the necessary laws
and established support structures for governance as required.
16.5 Immediate Commissions and Offices

The following commissions and offices were to be constituted within
short periods of time after the promulgation of the Constitution: The Judicial Service Commission within 60 days;
Commission on Implementation of the Constitution within 90
days;
Commission on Revenue Allocation within 90 days;
The Chief Justice within 6 months;
Salaries and Remuneration Commission within 9 months;
Attorney General within 1 year;
Controller of Budget and Auditor General within 1 year;
Ethics and Corruption Commission within 1 year; and
Supreme Court within 1 year.
16.5.1 Legislation to be Enacted Within Year 1
During the 1st year, the following legislation shall have been enacted
Citizenship;
Establishment of Kenya National Human Rights and Equality
Commission;
Establishment of Ethics and Anti-Corruption Commission;

Elections;
Political Parties;
Vacation of office of Member of Parliament; Legislation on power
of mercy;
Establishing other courts of the same status as High Court on
Employment and Labour Relations and Environment;
Removal from office of judges;
Vetting of Judges and magistrates;
Election and removal from office of the Speakers of the County
Assemblies;
Governance and management of Urban Areas and Cities;
Contingencies Fund; and
Terms and conditions for guaranteeing loans by the national
government.
16.5.2 Legislation to be Enacted Within 18 months

Legislation is to be enacted within 18 months in the following areas: Land;
Procedure for removal of a county governor;
Revenue funds for county governments; and
Transfer of legislative powers from national government to
county government.
16.5.3 Legislation to be Enacted Within 2 Years
Legislation shall be enacted within 2 years with regard to the following:

Leadership;
Recall of members of Parliament;
Determination of questions of membership of Parliament;
Right to petition Parliament;
Procedure and ceremony for swearing in of a President;
Judiciary Fund;
Financial control;
National Security Organs;
Command of the National Police Service; and
Legislation to provide for functions, organization
administration of national security organs.
and
170
16.5.4 Legislation to be Enacted Within three years

Legislation shall be enacted within three years with regard to the
following: Freedom of the media;
Support for the county governments;
Public participation and county assembly powers, privileges and
immunities; and
County assembly gender balance and diversity.
16.5.5 Legislation to be Enacted Within four Years
Legislation shall be enacted within four years on the following: Consumer protection;
Fair administrative action;
Fair hearing;
Rights of persons held in custody or detained;
Environment;
Accounts and audit of public entities;
Procurement of public goods and services; and
Values and principles of public service.
16.5.6 Legislation to be Enacted Within Five Years
Legislation shall be enacted within five years with regard to the following: Culture;
Family;
Community land;
Regulation of land use and property;
Promotion of representation of marginalized groups; and
Any other legislation required by the Constitution.
16.6 Implementing Devolution: Transition of Functions Between

the Two Levels of Government
The functions of government under the old order were carried out by
the central government. In this regard, service delivery was carried
out through public administration and the local government. Line
ministries, government agencies and departments as well as provincial
administration were important agents in service delivery.
The Constitution provides that transfer of functions, including the law
making function to county governments shall be phased out over a 3
year period. This is in order to ensure that county governments are not
saddled with functions with respect to which they have no capacity to

carry out. In the interim, national government shall continue to bear the
responsibility of delivering the functions that have not been transferred
to the county governments.
The national government is mandated to facilitate and build capacities
of county governments before the functions are transferred. The
national government is required to ensure that the old structures for
service delivery and particularly, the Provincial Administration accords
and respects county government structures. The restructuring of the
Provincial Administration shall be completed within 5 years. The Local
Government structure which was very visible as an agent of service
delivery has been abolished.
16.7 Organs to Facilitate Transition

All the constitutional commissions and independent offices have a
role to play in facilitating the transition to devolved government. The
Constitutional Implementation Oversight Committee and the Commission
on Implementation of the Constitution have, particularly, been tasked
with heavy responsibilities during the transition period.
16.7.1 Constitutional Implementation Oversight Committee
The Constitutional Implementation Oversight Committee is a select
committee of Parliament. The Commissions functions include (section
4): oversight;
receiving of regular reports from the Commission on the
Implementation of the Constitution on the implementation of the
Constitution including reports concerning: preparation of legislation required by the Constitution and
any challenges in that regard;
process of establishing new commissions;
process of establishing the infrastructure necessary for
operation of the counties including locating offices and
assemblies and the transfer of staff;
the 3 year phased out transfer of functions to the county
governments; and
any challenges to the process of implementing the Constitution

coordinate with the Attorney General, the Commission on the
172
Implementation of the Constitution and relevant Parliamentary

committees to ensure passage of the necessary legislation; and
Address any problems in the implementation of the Constitution.
16.7.2 Commission for the Implementation the Constitution

The Commissions functions include (section 5):
monitoring, facilitating and overseeing the development of
legislation and administrative procedures required to implement
the Constitution;
coordinating with the Attorney General and the Kenya Law
Reform Commission in preparing, for tabling in Parliament, the
legislation required to implement the Constitution;
reporting regularly to the Constitutional Implementation
Oversight Committee on:
progress in the implementation of the constitution; and
any impediments to its implementation.
work with each constitutional commission to ensure that the
letter and spirit of the Constitution is respected.
16.7.3 The First Elections under the Constitution
The first election under the current Constitution will be critical to
constitutional development. It will mark the definitive movement from
the former Constitution. It will mark the transition to the institutions
created by the Constitution and the devolved system. The elections will
also test the new institutions created under the Constitution particularly
the reformed IEBC, the Judiciary and the security systems.
The Constitution provides that the general elections will be held on the
second Tuesday of August every fifth year. This provision has led to the
assumption that the first election will be undertaken on the date. This
interpretation is supported by the fact that the Transitional provisions
suspends Chapter Eight and Chapter Nine but States that the chapters
will be applicable to the first elections of the National Assembly and
President respectively.
The alternative view is based on the sections of the Transitional provisions
which make provisions touching on, and which have implications on the
determination of the date of the first elections.
Section 10 of the Sixth Schedule provides that the National Assembly
existing before the effective date shall continue as the National Assembly
for the purposes of this Constitution for its unexpired term. This
transitional provision has led to the opinions that the determination of
the date of the next election is only possible once the unexpired term
of the current Parliament is determined.
Section 9(1) of the Sixth Schedule provides that, the National
Assembly, the Senate, county assemblies and county governors under
this Constitution shall be held at the same time, within sixty days after
dissolution of the National Assembly at the end of its term. Many people
have interpreted this to mean that since the transitional provisions make
specific provision for the first elections, the Constitutional provisions
regarding elections under Articles 101(1); 136(2)(a); 177(1)(a); and
180(1) are effectively deferred until the second election.
The High Court has taken an interpretation in line with the second view.
The Court decided that the elections will be held sixty days after 14th
of January 2013 unless the President and the Prime Minister agrees to
dissolve the coalition of the government at an earlier period.
16.7.4 Way Forward
Constitutional Amendment: the Ministry of Justice, recognizing
the uncertainty in the law, has proposed an amendment in order
to clearly determine the date of elections;
In case the Courts decision is appealed the Supreme Court
which is the final arbiter on Constitutional matters may make a
final interpretation on the date; or
In case the Constitutional Amendment fails and the Court Case
is not appealed, the President and the Prime Minister have the
option to indicate when they intend to dissolve the coalition
government.
16.8 Transition to the Devolved System of Government
After the first elections under the Constitution, the devolved system
of government will be rolled out. The Central Government will be
required to systematically transfer powers and functions to enable the
county governments perform their constitutional roles, and to develop
the capacity of the county governments. This transfer must be done
carefully to ensure seamless transition and continuity in transfer of
powers. Transfer will also be facilitated through provision of resources
and building of capacity to empower the county governments.
174
The Constitution and the Transition to Devolved Government Act 2012

provide the legal and institutional framework to facilitate efficient
transition. The objectives of the framework are:
provide legal and institutional framework for coordinated
transition and continuation in delivery of services;
effective transfer of powers and functions;
provide policy and operational mechanism during the transition
for audit, verification and transfer to the national and county
government of:
assets and liabilities;
human resources
pensions and other staff benefits of employees of the
government and local authorities;
closure and transfer of public records;
capacity building for county governments.
16.8.1 Organs to Oversee Transition
Fig 9: Organs to Oversee Transition
Transition Authority
Comprise Chairperson and

Principal Secretaries (Permanent
Secretaries) for Office of the
President; Devolution; Public
Service; Finance; Planning;
Justice and AG
Develop transition plan
To determine process of transfer

based on criteria
Undertake phased transfer of

functions
Report to Parliament; President;

CIC and CRA
County Governments
Undertake transfered functions
Make request for further transfer
Submit progress reports
16.8.2 Oversight of the Transition Process

The oversight of the transition process will be undertaken by President;
Parliament; the Commission for the Implementation of the Constitution
and the Commission for Revenue Allocation.
16.8.3 President
The President is expected to receive annual and progress reports from
the Transition Authority.
16.8.4 Parliament & County Assemblies
Parliament and the county assemblies will receive progress reports
regarding transition to devolved system. The Houses may also establish
Committee to oversee transition to devolved systems in accordance
with the Constitution and their standing orders. The Constitutional
Implementation Oversight Committee has responsibility to receive
reports from CIC and resolve any problems.
16.8.5 All National Departments
All national departments are expected to prepare and submit transition
plans in accordance with the transition to devolved government system.
16.8.6 County Governments, Council of Governors
County governments are expected to prepare progress reports. Council
of Governors will receive these progress reports.
16.8.7 Commission for the Implementation of the Constitution
(CIC)
Legislation to facilitate transition is required to provide for mechanisms
that ensure that the Commission on the Implementation of the
Constitution can perform its role in monitoring the implementation of
the system of devolved government effectively.
The Transition to Devolved Government Act 2012 provides that the
transition process will ensure and facilitate oversight by the CIC. The
functions of the CIC will include:
to monitor the transition process;
to receive transition plans by the county governments;
to monitor the implementation of the transition plans;
to require a State department to submit progress reports to the
Commission;
to be consulted regarding the criteria for transfer of functions;
to receive progress reports.
16.8.8 Phased Transition Process:
The Constitution expects Parliament to make provision for the phased
transfer, over a period of not more than three years from the date of the
176
first election of county assemblies, from national to county governments

of the functions assigned to them. The legislation is expected to provide
for the way in which the national government shall;
facilitate the devolution of power;
assist county governments in building their capacity to govern
effectively and provide the services for which they are responsible;
support county governments;
establish criteria that must be met before particular functions
are transferred to county governments to ensure that those
governments are not given functions which they cannot perform;
permit the asymmetrical devolution of powers: Asymmetrical
transfer of power is used to ensure that functions transferred
to the counties are supported through adequate power and
capacity in those counties.
16.8.9
The Phased Approach to Transfer of Functions:
The Transition to Devolved Government Act, 2012 outlines the criteria
and the manner in which the transition will be phased.
Fig 10: Showing phased transition
Initial transfer will occur in immediately following the first elections

The transition authority to determine functions which are to be
transfered immediately
Every county to make request to the authority for the transfer of the
other functions in accordance with the criteria
Authority has power to determine whether the function requested may

be transfered
Where the authority determines that the functions may not be
transfered, it will propose practical measures which must be met to
facilitate transfer.
Initial transfer
of functions
After initial
transfer of
functions
Determination
of transfer
Criteria
The following criteria will inform whether the functions may be
asymmetrically transferred in a manner that ensures that the functions
are matched by required powers and capacity.
Criteria
Check
Is there in existence legislation relating to the function

applied for
Has a framework for service delivery been put in place
to implement the function
Has the relevant county government established
administrative units related to the function
Has the county government undertaken a capacity
assessment in relation to the function
What are the arrangements for and the extent of
further decentralisation of the function and provision
of related services
Does required infrastructure and systems exist to
support the function
Does the county government have adequate financial
management systems
Does the county government have an approved plan for
the relevant function
Does the county meet additional factors determined by
the Authority in consultation with the CIC
16.9 Amendment
A Bill or proposal to amend the Constitution may be introduced by
either the National Assembly or Senate. The people, themselves, may
also initiate an amendment through a popular initiative signed by at
least one million people (Article 257). This proposal is submitted to the
Independent Electoral and Boundaries Commission. It also requires the
approval of at least 24 County Assemblies.
The Constitution, however, requires that certain proposed amendments
to the Constitution must be subjected to a national referendum. This
is in order to safeguard the sovereignty and power of the people. The
matters requiring a referendum before amendment are (Article 255): The supremacy of the Constitution;
The territory of Kenya;
National values;
178
The bill of rights;

The term of the President;
The independence of the Judiciary, commissions and independent
offices;
The functions of Parliament;
Objects and principles of devolved government; and
Amendment of the Constitution.
Recap of the Module
By reading this module the trainer is expected to:1. Appreciate the transitional arrangements regarding constitutional
transition;
2. Appreciate provision in the Constitution that cannot be amended
without a referendum.
Reference:
Chapter 16 of the Constitution
Fifth Schedule,
Sixth Schedule, part 2 and part 4
NOTES
180

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Kenya National Integrated Civic Education

Ministry of Justice, National

Ministry of Justice, National Cohesion and Constitutional Affairs

All or part of this publication may be reproduced freely, provided the

Design and Layout

Ee Mungu nguvu yetu

O God of all creation

Amkeni ndugu zetu

Let one and all arise

Natujenge taifa letu

Let all with one accord

he Ministry of Justice has an important mandate in the implementation

Assesses the relationship between the Constitution and other laws;

This publication gives a general overview of the Constitution of Kenya,

governmental processes as a civic duty and inculcate a culture of adherence

Gichira Kibara, EBS

he Kenya Vision 2030 envisions a country whose citizenry are engaged

I wish to express appreciation to everyone whose hours and resources were

Rev. Jephthah K. Gathaka

he preparation and completion of this manual was made possible by the

MODULE 1: CONSTITUTIONALISM AND THE KENYA

MODULE 3: BILL OF RIGHTS..................................................... 27

Regional (African) Human Rights Instruments............................................32

MODULE 4: LEADERSHIP, ETHICS AND INTEGRITY................... 49

MODULE 5: LAND AND ENVIRONMENT...................................... 57

MODULE 6: REPRESENTATION AND ELECTORAL PROCESSES... 67

MODULE 7: STRUCTURE OF THE STATE: THE LEGISLATURE.... 87

MODULE 8: STRUCTURE OF THE STATE: THE NATIONAL

MODULE 9: STRUCTURE OF THE STATE: THE JUDICIARY...... 109

9.1 Introduction ............................................................................................110

MODULE 10: PUBLIC SERVICE................................................. 117

10.1 Introduction ............................................................................................118

MODULE 11: NATIONAL SECURITY.......................................... 121

Principles National Security.....................................................................122

MODULE 12: COMMISSIONS AND INDEPENDENT STATE OFFICES.

MODULE 13: SYSTEM OF GOVERNANCE.................................. 133

MODULE 14: COUNTY GOVERNMENTS..................................... 139

MODULE 15: PUBLIC FINANCE................................................. 157

MODULE 16: IMPLEMENTATION OF THE CONSTITUTION........ 167

Transitional arrangements under the Constitution...................................168

1: The CKRC Process.......................................................................................4

Arrangement of Chapters and Schedules................................................7

African Charter on Human and Peoples Rights

Kenya National Integrated Civic Education

Elewa Katiba, Jenga Nchi

Kenya National Integrated Civic Education

The Constitution and Constitutionalism

A Constitution is defined as rules that regulate the system of

Kenya National Integrated Civic Education

Constitutionalism is fidelity to the Constitution. It means being faithful to

A Constitution provides the basis within which a governments laws

The Relationship Between the Constitution and Other Laws

Kenya National Integrated Civic Education

From the beginning, the Kenyan Constitution safeguards its supremacy

1.6 History and Context of Constitution Making in Kenya

Fig 1: The CKRC Process

Understanding the Constitution of Kenya

Kenya National Integrated Civic Education

Elewa Katiba, Jenga Nchi

Kenya National Integrated Civic Education

Overview of the Constitution of Kenya, 2010

Kenya National Integrated Civic Education

performance of public institutions;