Considering that it will not be a walk in the park amending the constitution if the proposed document passes the plebiscite test isnt it better to advocate doing so pre-referendum - however unpopular that position sounds.

In the interim ingest this:

Date 16th June 2010.
INTEROGATING THE PROPOSED CONSTITUTION.
The constitution being the supreme law of the land needs to be interrogated thoroughly and with sobriety, before we pass and subject ourselves to it.
Its Referendum process ought to be devoid of the usual passions, euphoria and blind following of the political elite. Unfortunately we seem to be falling into the same trap once again!
While appreciating that the proposed constitution is largely good for Kenya, I am uncomfortable with the areas as highlighted here after.

1)Kadhis Courts
Quite clearly, the principle of separation of state and religion is offended.
Inequality and/or lack of fairness in the way religious groups are addressed by the constitution - promoting the perception that one religion is favoured - as its practice is adopted by the state and funded by Govt.
It is discriminatory to all those who don’t profess Islam faith.
This in itself has the potential to cause friction among religious groups and possible nasty confrontations.

2)Land.
Minimum and maximum parcels permissible!
This can only serve to upset the hither to prevailing equilibrium.
Declaring minimum and maximum acreage is introducing uncertainty in a hitherto stable situation. While I view the idea of putting an upper ceiling on land that one can hold as socialist, my main beef is with the low end capping. Minimum land parcels allowed by law will mean many people cannot legally own land. What will happen to people whose pieces fall below the minimum then? Think of Kenyans in places like Kiambu, Kisii etc.
This is a recipe for problems given that a huge chunk of our people live and depend entirely on their land – for food, shelter etc - blame un- employment.
See Section 68 (c)( i).

Community land.
The principal basis of ownership here is said to be ETHNIC!
This is reckless to say the least. This has been one of our major problems as a country, where communities have sought to evict people viewed as alien. Now they will get constitutional backing. Given our history and perceptions, more than ever before, Land should be de-ethnicised as much as possible.
See Section 63

Taking back land acquired many years back!
This is inimical to business. It can actually bring the economy to its knees.
From the time such land was acquired, chances are, it has since changed hands several times and in certain cases it is held by Banks and other financial institutions as collateral against Money owed.
If the Titles to the land are revoked, the Banks stand to lose, setting off a chain reaction a la economic meltdown witnessed in the US, Europe and across the world in 2008/2009.
Investors, both local and international would also lose faith in land Titles and any other Govt document.
See section67 (e)

3)Abortion
I must admit that personally I guardedly tend to lean towards pro choice side of the divide on this matter.
However, if the intention of Kenya was to outlaw abortion unless it threatens the life of the Mother, then what we have in the proposed constitution is a far cry from.
I read insincerity on the part of the drafters and a cabal of opinion shaper – personalities, who are, or should be aware that the wording in the proposed constitution surreptiously allows abortion under a loosely wide range of situations.
By default, or maybe it was in guile, intended that way, it is in actual sense a pro choicers’ paradise situation.
The phrase “when the health of the mother is in danger” is vague and gives leverage to abortion. It should be noted that the health of an expectant lady is never the same a couple of weeks after conception. All a unscrupulous woman in Nairobi needs, is to hire the services of a” trained health professional” to flush and explain that her health was messed – you know swollen legs etc.
In other parts of the world, especially the USA, RIGHT TO REPRODUCTIVE HEALTH is actually euphemism for abortion rights.
See section 26 (4) along with section 43 (1) (a)

4)Representation in the senate
Demo-cracy literally means Govt by people. Since we can’t all make decisions every so often, we elect representatives to act for us.
Logically each representative is to carry the weight of the people who sent him/her to the august house.
I am hence dismayed that Senate the upper house of Parliament is hopelessly unrepresentative.
Consider this;
Coast province population represents about 7% of Kenya, yet it is awarded 6 senate seats.
Combined walaloo groups (Somali Borana &co ) whose population is about 2% of Kenya have been given 5 senate seats.
Western province commanding 14% of Kenya’s people has 4 senate seats only.
Central Kenya has 5 senators.
Luo Nyanza commands about 12% of Kenya population, yet they have 4 Senate seats.
Kamba Land with over 11% of the country’s population has a paltry 3 Senate seats.
What we’ll have in place therefore is a ‘MINOCRACY’ as opposed to DEMOCRACY, - ridiculous!
See section 98 read together with First schedule.

5)MP’S Recall clause.
Allowing the MPs to determine circumstances under which the electorate can recall them is defeatist.
See section 104 (2)

6)Haste resulting to errors and confusing clauses.
Law is supposed to be absolutely clear and unequivocal as to its meaning.
As a matter of fact the phrase for avoidance of doubt is quite common legalese.
It is sloppy that we are to pass a document with glaring errors and contradictions, aside from the misspellings that point to an important exercise done in haste and wanting diligence. What is this unrealistic hurry is Kenya or the world about to close!
See some of the errors, as first identified by the KEJUDE org;

> Are the following missing clauses deliberate loopholes for later
> mischievous insertions after the Proposed Constitution is ratified,
> especially given that already we have more than one version of the
> document in circulation?
> a. Article 41(3): Sub-clauses (a), (b), (c) and (d) are missing;
> b. Article 103(1)(e)(i) refers to a Clause 2 which is missing;
> c. Fourth Schedule, Part 1: Clause (27) is missing
> d. Sixth Schedule, Part 6: Sub-Clause (27)(2) is missing
>
> Why are there two Sub-Clauses numbered (b) in Clause 234(3)? Which
> one is binding when reference is made to Clause 234(3)(b)?
>
> What is the meaning of Clause 20(3)(a)? Should the words "does not
> give" be replaced with the word "gives" for it not to undermine the
> mandate of the Judiciary? If it is supposed to stop courts from
> creating new rights and freedoms then it does not say so. What it
> does is to undermine the entire Bill of Rights.
>
> Other glaring mistakes in the Proposed Constitution of Kenya include:
> a. Article 163(1) the phrase ?There is established the
> Supreme Court, which shall consists of?
> b. Article 260 the phrase ??county legislation? means a law
> made by a county government or under under authority conferred by a
> county Assembly?;

7.Two centres of power!
Though the National accord envisaged in its very own self that, it would cease to exist upon the enactment of a new constitution, the proposed constitution actually went ahead to give it more life, till the end of the current parliamentary term!
Though curious, that isn’t my major beef with this section, but the following;
All national offices falling vacant from August 20th to the end of the parliamentary term will be filled only after consultation of the President and the PM.
Danger here is If they don’t agree then those offices are likely to remain vacant indefinitely!
Considering that all Judges including the CJ and the AG will automatically be out of office, in the event of lack of concurrence, we will end up with a potentially dangerous stalemate.
We were already treated to an embarrassing disagreement over filling of the leader of Govt business in parliament slot.
Thank goodness that office isn’t too crucial to seamless running of Govt.
Same can’t be said for most other offices that will need to be filled, e.g. having judges in place.
See Sixth Schedule section 29.

Let’s not play Russian roulette with our lives.

Surely we can put the process on hold to right these wrongs and then move on to give ourselves a befitting constitution devoid of these problems.
I say this because I know we can.

KN

consider this also

Construing this Constitution
259. (1) This Constitution shall be interpreted in a manner that—
(a) promotes its purposes, values and principles;
(b) advances the rule of law, and the human rights and fundamental
freedoms in the Bill of Rights;
(c) permits the development of the law; and
(d) contributes to good governance.

The spirit and letter of law should be considered in all debates

@Fundah

Granted, interpreting it in the way you pointed out, please tell us of the sections quoted which one(s) will change meaning and to what.

Show us the light so we may not mis-interpret.

nice post.in a nutshell captures my main beef with the proposed constitution. many on the YES side point out that the 'negatives' are few. they forget the issues are weighty, especially hio ya communitu land and capping minimum acage. if only NO was being led by credible leaders... tungekuwa wengi.

sometimes you may interpret something thinking you are right, but it turns out, you are Absolutely Wrong.

Being wrong thinking you are right should be a crime, but this is right wing wazua so we shall let you continue with your folly.

What will become of the "tribesdom" of North Rift when the Provincial Administration is replaced by this County Governors? This will be done 5 years after effective date. I don't see the perennial targets of violence there (excuse the bluntness) being elected into any position of the county there where one can look after their interest, in fact their fate will lie solely in the warlike/intolerant nature of this "tribesdom" which will now be officially sanctioned. I would like anyone to give a credible argument that this will not be the case.

The same may happen in areas such as the Coast, Nyanza and Western, North Eastern. The machinery to entrench ethnic zones and divide the already difficult to unite Kenyans is all too well laid out through this constitution. In this case, IT IS ACTUALLY WORSE AND MORE DANGEROUS THAN THE OTHER ONE.

I have come to see this proposed constitution as a "mish marsh" of many impractical and dangerous ideas to please different people.
1. There shall be no state religion (to please the idealogist on separation of state and religion) but then Kadhi courts (to please muslims)
2. Every citizen has the right to enter, remain in and reside anywhere in Kenya.(to please IDP's) and then these counties(to please majimbo advocates)
3. Parliament shall enact legislation to prescribe minimum and maximum land holding acreages in respect to private land:(to please communist), Then security of land rights (to please capitalist)
e.t.c and many more illogical contradictions

I read Gitau Warigi on Sunday;
Hopeless article.
Insinuating that as long as it affects them and not us then its ok.

The only question should be; Is it a good or bad law.
I guess mugabe started that way.

To quote Njoki ....Proverbs 9:5: “A false witness will not go unpunished, and he who breathes out lies will not escape”.


http://wazua.co.ke/forum.aspx?g=posts&t=7466

Funnyguy...Pls be kind enough to tell us that the citizenship can be revoked if the child parentage becomes known, there was fraud,or childs age becomes known

Revocation of citizenship
17. (1) If a person acquired citizenship by registration, the citizenship may be
revoked if—

(a) the person acquired the citizenship by fraud, false representation or
concealment of any material fact;

(2) The citizenship of a person who was presumed be a citizen by birth, as
contemplated in Article 14 (4), may be revoked if––

(a) the citizenship was acquired by fraud, false representation or
concealment of any material fact by any person;
(b) the nationality or parentage of the person becomes known, and
reveals that the person was a citizen of another country; or
(c) the age of the person becomes known, and reveals that the person was
older than eight years when found in Kenya

Funnyguy you are most welcome...please pass this message to anyone who may be opposing the draft based on this point...let everyone know this...the citizenship of such child can be revoked....if anyone challenges you...bring it here and we can help you....