ckrc ncc plenary proceedings of 9 - katiba · web view(ckrc) national constitutional...

CONSTITUTION OF KENYA REVIEW COMMISSION(CKRC)

NATIONAL CONSTITUTIONAL CONFERENCE(NCC)

VERBATIM REPORT OF

PLENARY PROCEEDINGS ON DECISIONS ON DRAFT BILL BY THE COMMITTEE

OF THE WHOLE CONFERENCE HELD AT THE PLENARY HALL, BOMAS OF KENYA

ON

09.03.04

CONSTITUTION OF KENYA REVIEW COMMISSION

NCC – PLENARY PROCEEDINGS ON DECISIONS ON DRAFT BILL BY THE COMMITTEE OF THE WHOLE CONFERENCE

HELD AT THE PLENARY HALLAT BOMAS OF KENYA ON 9 th MARCH 2004

of 126Last printed 7/19/2004 1:53 PM

Present:

Prof. Yash Pal Ghai - Chairman (NCC)Hon. Delegate Koitamet Ole Kina - Vice Chair (NCC)PLO Lumumba - SecretaryHon. Delegate Bonaya Godana - Co-chair

Secretariat Staff In Attendance

Christine Mwambua - Clerk (National Assembly).Emma Kamunge - Verbatim ReporterMary Babu - Verbatim Reporter

The meeting was called to order at 10.15 a.m. with Prof. Yash Pal Ghai in the Chair.

Prof. Yash Pal Ghai: Can you please take your seats. The Delegates who will say our prayers

for us today are Rihal, Fr. James Gatiti and Mrs. Grace Ogot. So, I will ask you please to stand

up so we can begin with prayers.

Hon. Delegate Rihal Baldip: (Prayers).

Ekiomkah Satnam (?) Oh Supreme God, Absolute, yet all providing. The Eternal, the Creator of

the Universe. The cause of causes, without enmity, without hate, both imminent in your creation

and beyond it. You are not the God of one nation but the God of grace. Almighty God, Delegates

to the National Constitutional Conference of Kenya are meeting this morning as a Committee of

the whole house to consider the Draft Bill on the proposed new Constitution for Kenya. Oh God

we pray that you give the Delegates the wisdom to work in a calm, harmonious and sober

manner. In order to carry out the deliberations in a selfless sense of service to this Nation. Oh

God, please give us understanding so that we may know what pleaseth you. May all mankind

prosper by thy grace. Oh Supreme God we pray for your mercy and blessings on all people of

this nation. Wahe gurji Karkasa Wahe gurji Kirhote (?).

Hon. Delegate Fr. James Gatiti: (Prayers).

Oh God our Creator and peace loving Father, we adore and worship you. We come to you with

humility and sincere hearts. Asking you to forgive us our sins of omission and commission.

Thanking you for this rare, unique and singular opportunity and historic process that you have


given us Kenyans to write our new Constitution. You have been with us in all the stages of this

Review Process and we pray that you may be with us even at this injury and critical stage which

marks the final lap in writing our Constitution. Our dear Heavenly Father, we pray that your

divine wisdom and understanding and sobriety may prevail among us the Delegates here. Enable

us Almighty Father to be able to forgive one another for the times when we have hurt others.

Give us a heart that is able to accommodate the divergent views of others. We note that there are

many hurdles and challenges ahead in this process. Almighty Ever living God, enable us to

remove suspicions, selfish agendas and mistrust that has prevailed here at this Constitution

making. Inspire us with your Holy Spirit, to remain focused in giving Kenyans a good

Constitution that is going to give Kenyans their inalienable rights and remove them from social,

economical and political mess that they find themselves. A Constitution that will shape their

destiny as a Nation and for prosperity. We pray this through Christ our Lord. Amen.

Hon. Delegate Grace Ogot: (Prayers).

Oh Father, God of Kenyan nation, Jesus Christ whom we worship in the Name of God, we

beseech you this day, this week, this month, that as we make Katiba of your people, Kenyans and

their relatives, that we be closer to you. Father today, we want to feel your presence, and this

week we want to feel your presence, and this month Father. It is difficult today Father that we are

negotiating a Constitution on the final days. We will not be the first people to do it because even

in the days of Moses, they did that. But today Father we want you specially to sit by us and be

close to us. We thank you that Honourable Murungi is here today, we do work that he also does

for this great Nation. We thank you because President also is aware that today is a very important

day for his people. Father do give us wisdom and give us patience and understanding between

the Steering team and all the Delegates. May your voice be seen and be heard. Father on a final

word, the Katiba is what Kenyans are waiting for. Both men and women and children because it

will change their lives. It will give them better lives, so you be a secret visitor here today that

you sit with us all the time, strengthen the Chair and his team. As we sit down Father now, let

your presence be felt and let judgments we give not be those that will only help self, but that will

help all Kenyans because we are their voices and their thinking. We ask this in the Name of

Jesus Christ. Amen.


(The National Anthem).

Prof. Yash Pal Ghai: Honourable Delegates, I have been asked to make an announcement by

the Chair of the Welfare Committee to say that the Committee will meet today at lunch break in

Tent, TWG H. Tent number 8 and all the members are requested to attend this meeting. I would

like to first apologize that yet again we were unable to meet at 8.30 a.m. as we had previously

resolved. The reason for the delay is that there were certain matters before the Steering

Committee which took us a long time to resolve. I apologize for this delay. The Steering

Committee reviewed the proceedings. Order please! Order.

The Steering Committee reviewed the proceedings yesterday and we tried to see what lessons we

could draw from those proceedings. Some members of the Steering Committee criticized me for

not imposing more discipline on the proceedings and allowing too many speeches to be made.

They urged me to speed up the pace of the proceedings so that we can dispose of the Articles in

the Zero Draft. We also agreed that there were some discussion as to – Order! Order please!

There was some discussion as to the voting procedures and the voting rules that we should

observe at this stage of the process. That is to say in the Committee of the whole Conference.

Some expressed the view that the Committee of the whole Conference is a Committee of the

Conference and is subject to the same rules of decision making as other Committees, including

the Technical Working Committees and that it will be improper to take a decision by voice vote

as we have been doing to some extent. The two-thirds rule will only apply at the final stage of

the process when we have a final text of the Draft Constitution and we adopt that.

Others were of the view that even at this stage, we need to follow the two-thirds rule and

therefore voting by voice may not be appropriate. We need to have precise number of people

who have voted for and against. After a great deal of discussion, it was decided that we would as

it were, combine the two stages of the process that remain. That in the Committee of the whole

house we shall use a two-thirds rule, say if there were no consensus then, the decisions are made

by two-thirds of the vote of Delegates present and voting. Of course this assumes that we

actually have a quorum when we take the vote. But the vote will be taken by two-thirds, then at

the next stage, when we have the final text, we can adopt that quickly because all the decisions


will have been taken by two-thirds before that particular stage. In this way, we will probably

save time but we probably won’t need to spend any extra time.

We also agreed that when we take the vote, we will take the vote in the method that we used at

the end of yesterday. You remember we had various voting methods. It was a good education for

us but the last vote was taken by Delegates sitting in the seats and if they were supporting the

Motion and I ask for those who support the Motion to raise their number plates, then they will

remain seated in their seats and the tellers will take down your votes and then I would call upon

those who oppose the Motion and similarly the tellers will take down the votes. This seem to me

to be slightly more efficient and quicker way of concluding the poll than the other method we

tried. The Steering Committee endorsed that method and we shall employ that today. I think

either probably the decisions or the recommendations of the Steering Committee are relevant to

our proceedings today.

When we were concluding our meeting yesterday, we took a vote on Article, let me just check –

Article 13, which is the Article dealing with national goals, values and principles. We had a very

detailed debate on that matter. We then proceeded to vote on that and after we had voted and

when we counted the votes, it was clear that we did not actually have a quorum. I believe 400 –

the Secretary may have the exact.

PLO Lumumba: 239.

Prof. Yash Pal Ghai: 239 voted in favour of Article 13 and 10 opposed that. But 239 figure is of

course two-thirds of the quorum but we did not have a quorum. Strictly speaking I guess when

we have a situation like this and it looks like there may not be a quorum, perhaps it would be

expedient to take a quick count of the Delegates, because there is no point proceeding to a vote

when there isn’t a quorum. We did not do that last time, our impression was, we did not actually

have a quorum and I think some people walked out even as we were voting. So, by the end we

did not have a quorum. So, what I would like to propose is that we now conclude our decision on

Article 13, it is an Article which has various principles and values I think we have to vote on it as

such. There was one amendment, which was defeated, so we voted then on Article 13 as it is set

out in the Zero Draft that you have.


So, what I would like to suggest is that we now – many of you were actually present at the

debate but had left before we took the vote and that is the matter of regret because we have

agreed that we would work till late in order to finish business and if at 5 O’clock, we do not have

a quorum, we are not going to be able to complete our work on time. Then the work will be taken

over by other institutions. So, I think we really need to stay here till at least 6 or maybe even

longer in order to conclude the business. I forgot to mention that there was a suggestion which

was moved by Sheikh Ali Shee that we do not have a morning break today so we make up for the

lost time and also strictly speaking we only have one hour for lunch. I will see the suitable time

to break for lunch but please be back no later than one hour after we adjourn.

(Consultations at the “high” table).

I think now I take the vote on Article 13, there is no need to read the Article yet again and indeed

I am going to propose that we do not read the text. The rules do not require us to read the text.

The text has been read to you, you all have copies of the text in front of you, so I would suggest

that the Secretary reads the number and the title and then we proceed to discussion. (Clapping).

Prof. Yash Pal Ghai: Thank you. So, let me now call a vote on Article 13, those who support

Article 13 and wish it to become part of the Draft Constitution, will you please raise your

number plates and the tellers please take down the votes--

PLO Lumumba: We are aware that there was an amendment as moved by Lawrence Mute, the

vote is subject to that.

Prof. Yash Pal Ghai: Sorry, thank you for clarifying that. So, Article 13, which we are voting

on, is as it is in your document subject to an amendment, which was approved that there should

be gradual realization of 5% representation in appointive and elective bodies for the disabled.

That was approved when it was put as an amendment, so when we are voting we are voting on

this Article with that amendment.

(Noise on the floor).


PLO Lumumba: Put the question.

Prof. Yash Pal Ghai: I put the question now; I thought I had already done that, that Article 13

as amended stand part of the Draft Constitution. Those who are in favour of that please raise

your number plates and the tellers will take down your votes. Then when that is concluded, I will

ask those opposed to the Article to raise their number plates. But at this stage we are taking the

votes of those who support Article 13.

(Counting of placards).

Prof. Yash Pal Ghai: We have now counted the number of the Delegates who are supportive

and I will now ask those who oppose it or to raise their Placards and their votes will be taken

down as well. The Placards, please?

(Counting going on). (Inaudible comments)

Prof. Yash Pal Ghai: Yeah.

(Discussions on the floor)

PLO Lumumba: With the Chairman’s permission, I can now announce the vote.

The “AYES” to approve the Article 13 as amended - 387.

The “NAYS” - 3.

Specific Vote “NO” on an Article – 1; on Article 13 – (1)

The Chairman will now do the formal approval process.

Prof. Yash Pal Ghai: Well, the “AYES” have it and so Article 13 is now adopted and we move

on to Article 14 (Clapping and Shouting). 368.


Hon. Delegate Joel K. Sang: Thank you, Honourable Chair. I am Delegate number 368, Joel

Sang representing Bomet District. My Point of Order is, there are certain Articles you deferred

yesterday. They touch on Devolution of power. The whole process of Constitutional Review is

anchored on the aspirations of the Kenyan people to govern themselves without “Mafias” and

powers that do not emanate from them (clapping). It is futile for us to say we are writing a

Constitution unless we address the issue of Devolution of power. I wanted to bring to your notice

that unless we dispose of the issue of Devolution of powers, I do not see the point of saying we

are writing a Constitution. Thank you. (Clapping).

Prof. Yash Pal Ghai: Could I then ask those who support this? I will have two speakers who

are for and two who are opposed and then we will decide how to proceed. So, those who are

supporting it, can you keep your Placards up?

PLO Lumumba: 396.

Prof. Yash Pal Ghai: 396.

PLO Lumumba: 396, you have been recognized. 396.

(Uproar on the floor)

Prof. Yash Pal Ghai: Order! Order! Okay. Order! Order! Please. I cannot do anything while you

are shouting. Please be quiet. I sense that the wish of this Conference is that we should proceed

to a vote on Articles 6 and 7.

(Clapping by the Honourable Delegates)

(PLO Lumumba and Prof. Yash Pal Ghai consulting)

Prof. Yash Pal Ghai: Okay. I will now request the Secretary to read the Article and the

Heading. Thank you.


PLO Lumumba: Ladies and Gentlemen, the Articles--

(Consultations at the “High: table)

Prof. Yash Pal Ghai: 057. Order! Please. We must have order if we are going to proceed in an

orderly fashion and have a proper discussion. Please keep quiet when somebody has the floor.

Hon Delegate Kivutha Kibwana: Thank you for your protection, the Chair and for protecting

the Conference. Chair, yesterday we took a decision that we were going to discuss Article 6 and

Article 7 and Article 8 (2) when we reach the substantive Chapter of Devolution. The decision

was not to postpone discussing Devolution. The decision was to ensure that the entire discussion

of Devolution is situated in the correct place and that was a unanimous decision of this

Conference.

Hon Delegates: No. No. No.

Hon. Delegate Kivutha Kibwana: Secondly, the Chair, today at Steering after lengthy

deliberations which even made this meeting take longer to start, it was agreed that we would

discuss Devolution and therefore 6, 7 and 8 (2) at the appropriate place in the Chapter of

Devolution.

Hon. Delegates: No. No. No.

Prof. Yash Pal Ghai: Order! Order!

Hon. Delegate Kivutha Kibwana: Could I be protected so that I say my piece.

Hon. Delegates: We have the votes.


Hon. Delegate Kivutha Kibwana: You have the votes, but I have the floor. So, the Chair, we

are becoming very inconsistent because there are people who wanted to debate Devolution, they

are not here now because they knew--

(Noise and Uproar by the Honourable Delegates)

Hon. Delegate Kivutha Kibwana: --because they knew on decisions which were taken

yesterday--

Prof. Yash Pal Ghai: Order! Order! Order! Please.

Hon. Delegate Kivutha Kibwana: Even if you shout, they will not be here because you made a

decision yesterday. You made a decision.

Prof. Yash Pal Ghai: Order! Order! Delegates. Let Mr. Kibwana make his statement. You will

have your opportunities, please?

Hon. Delegate Kivutha Kibwana: Chair, because you made a decision yesterday, we made a

decision that Article 6, 7, 8 (2), were to be discussed substantively with the Chapter on

Devolution, some people did not therefore, who wanted to debate that particular topic are not

here.


Prof. Yash Pal Ghai: Mr. Kibwana, can you finish your statement, please?

Hon. Delegate Kivutha Kibwana: Chairman, I am not able to finish because I am not being

given the time.

Prof. Yash Pal Ghai: Order! Please. So, let us listen to Professor Kibwana, please. Please.

Hon. Delegate Kivutha Kibwana: Chair, by this time in this Conference, if making this

Constitution has not humbled us, so that we are able to listen to people and this Constitution


involves giving voice to the entire country, I am very saddened for all of us and for our country

and because I am not being allowed to speak--


Hon. Delegate Kivutha Kibwana: Okay. If I am allowed, then I will finish

.

Prof. Yash Pal Ghai: Order! Order.

Hon. Delegate Kivutha Kibwana: If I am allowed, I will conclude. So--

Prof. Yash Pal Ghai: Please let Kibwana finish his statement then we will--

Hon. Delegate Kivutha Kibwana: So, the Chair, I am saying that when we are inconsistent,

when we make decisions people plan their days on decisions that we have made and then we

ambush them and we make discussions, on what we had said at both Plenary and Steering that

we would not do, we are very inconsistent and we are taking lightly the task of making this

Wanjiku’s Constitution and I personally will not be able to participate--

(Noise and Uproar by the Honourable Delegates).

Hon. Delegate Kuvutha Kibwana: --in this particular debate because I have told many people it

was going to come on later when we discuss Devolution and the Chair, I take a lot of exception

to leaflets which are being circulated so as to poison the minds of Delegates, No Devolution, No

Constitution. Nobody is saying there should be no Devolution. We are simply saying that if we

told people, we were going to discuss something subsequently, if we discuss it now, we are

ambushing them, they are absent, we are being unfair, we are being unconstitutional, we are

being illegal. But, we have the right as Bomas if we wish to self-destruct ourselves.

Prof. Yash Pal Ghai: Please can you wind up, please? Thank you.


Hon. Delegate Kivutha Kibwana: I have wound up.

Prof. Yash Pal Ghai: I would like to make a ruling at this point. Up to a point Professor

Kibwana is right, we had said we would postpone these two--

An Hon. Delegate: (Inaudible).

Prof. Yash Pal Ghai: Listen to me please. We had said that we would leave these two Articles

till we come to the Chapter on Devolution. But in view of the overwhelming desire or expression

of views on the floor now, that we proceed with the consideration of Article 6 and 7, I am now

going to allow that (clapping). And I am going to ask the Secretary to--

PLO Lumumba: There is a Motion by Kiriro Wa Ngugi.

Prof. Yash Pal Ghai: Yes. Yes. There was a--

Clapping as Hon. Delegate Kivutha Kibwana walks out in protest.

Prof. Yash Pal Ghai: Honourable Delegates, that is not the way to treat an Honourable

Delegate. Now, we will have a--

PLO Lumumba: I now have the floor. I have been given the floor by the Chair to progress

debate. I progress debate in this manner. By indicating that we are now on,

Article No.6 – Devolution Chapter 10

(1) The Article No. 6 deals with the territory.

(2) The Article No. 6 (2) says that the Republic is divided into regions and districts as set out

in the first schedule and boroughs in respect of Nairobi, there is a corrigendum to that

effect.


(3) That each District shall be divided into such locations with such boundaries as are

prescribed by the Act of Parliament.

Article No. 7

1. The sovereignty of the people is exercised at the following levels:-

(a) The National Level;

(b) the regional Level;

(c) the district Level and;

(d) the locational level.

2. The district is the principal unit of Devolution.

3. The principal role of a regional level is to coordinate the implementation within the

district forming the region of programmes and projects that extend across to two or

more districts of the region.

4. The principal role of the Senate is to provide an institution through which the devolved

levels of government share and participate in Legislation at the National Level.

5. The two Houses of Parliament as the principal source of national legislation are

responsible for enactment of the framework legislation applicable to the devolved levels

of government either directly or adapted to local conditions by their legislation.

6. The governments at each level are distinct, inter-dependent, consultative and negotiative

(which I doubt is an English word), and;


Article No. 8

The State shall decentralize the headquarters of the national state organs to all the regions

equitably.

Thank you, Mr. Chairman and Honourable Delegates.

Prof. Yash Pal Ghai: Those who support the adoption of these Articles as have been read out,

please raise your Placards. Will the Tellers, please now count the votes.

Prof. Yash Pal Ghai: Honourable Delegates who are opposed to these Articles to raise their

Placards, please?

(Discussions at the “high” table)

Prof. Yash Pal Ghai: Honourable Delegates, if anybody wishes to abstain, please raise your

Placard now.

(Discussions at the “high” table)

Prof. Yash Pal Ghai: Ladies and Gentlemen, we now have the count of the votes.

Those in support of the Articles are - 324 (Clapping).

Those who are opposed are – 6.

And there are 2 abstentions. So, the, “AYES” have it. (Clapping).

We now go on to the next Chapter on Citizenship which starts with Article 14 and I am going to

ask the Secretary to read the Titles only, not the whole text. Thank you.


PLO Lumumba: Thank you very much. As directed by the Chair, I will now read the Titles and

the Article numbers only. Chapter--

Prof. Yash Pal Ghai: And so--

PLO Lumumba: Sorry

Prof. Yash Pal Ghai: --just say that those who have motions, will then raise them at the

appropriate moment.

PLO Lumumba: Those who have motions will then raise them at the appropriate moment.

Chapter 4 – Citizenship

Article No. 14 – General Principles concerning citizenship

Article No. 15 – Retention of existing citizenship

Article No.16 – Acquisition of citizenship

Article No.17 – Citizenship by Birth

Article No.18 – Citizenship and Marriage

Article No.19 –

Prof. Yash Pal Ghai: I think you have to wait. I believe that there were some Delegates who

wanted to propose amendments to Article 18. Delegate number 084.

Hon. Delegate Wangari Maathai: Thank you, Mr. Chairman. I would like to move that this

Article be changed by inserting the word, ‘ten’ instead of, ‘seven’. 18 (1), I feel, Mr. Chairman,


that it is important that a person who is seeking to be a citizen of Kenya through marriage,

should at least wait for ten years before seeking for consideration to acquire citizenship.

(Discussions on the floor)

Prof. Yash Pal Ghai: I am going to take just two or three speakers, those who are in support of

it, please and want to speak, please--

PLO Lumumba: 595


Hon. Delegate Martin Shikuku: Thank you, Mr. Chairman. I want to say only two words. I

support the gracious lady and anybody who is a nationalist and a patriot would not differ with

that gracious lady. Thank you, Mr. Chairman. I have seconded it. (Clapping).

Prof. Yash Pal Ghai: Would anybody like to speak against the motion or against the

amendment?

PLO Lumumba: 151.

Prof. Yash Pal Ghai: 151

Hon. Delegate Joseph Nyagah: My name is Joseph Nyagah, 151. Mr. Chairman, I was in the

Committee that discussed this thing at great length. One of the things we found out, many

Kenyans live overseas, our children, your children. They are coming back with wives or

husbands who were born elsewhere. That is the reason after a lot of argument, we felt a

compromise of something like five years would make sense. That was the reason. So, let us

please be understanding to the fact that, it is our children who are coming back, although I was in

the same category myself. But I met a condition of seven years. But our children, your children

who live overseas, do we really want to put them in such a difficult position. Let us make them

Kenyans within five years. Thank you. (Clapping).


Prof. Yash Pal Ghai: Could I have one more speaker in support of the proposed amendment?

PLO Lumumba: 259.


Hon. Delegate Salah Maalim Ali: Thanks Chair. My names are Salah Maalim, Delegate

number 259 from Mandera and I wish to support the last speaker, that is Honourable Nyagah and

I happen to be in the same Committee of the Bill of Rights that made a decision. I remember we

argued it out for a very long period of time and it so happened that we compromised on the seven

years and found that ten years is such a long period of time. So, I am in support of the retaining

of the way it is in the Zero Draft currently. Thank you.

Prof. Yash Pal Ghai: Should we put the question now?

Hon. Delegates: Yes.

Prof. Yash Pal Ghai: Okay. So, those who support the amendment, will you please raise your

Placards.

Hon. Delegates: What is the amendment?

Prof. Yash Pal Ghai: The amendment is that Article 18 Clause (1), in that you replace seven

years with ten years, which means that anybody married to a Kenyan has to wait for ten years

before they can apply to be citizens. Now, those who support this please raise your Placards and

the Tellers in the usual way will take down your votes.

(Discussions at the “High” table)

(Voting going on)

Prof. Yash Pal Ghai: We can therefore proceed. (Clapping)


Prof. Yash Pal Ghai: The Secretary will now continue reading the Articles.

PLO Lumumba: Article number 19, citizenship by nationalization.

Prof. Yash Pal Ghai: What is your Point of Order?

Hon. Delegate William Ole Yiaile: 361, Yiaile is my name. Bwana Chairman, I had a Motion

on the same Article 18(2).

Prof. Yash Pal Ghai: Yes, I think you have been given an opportunity to speak now if you wish

to. Do you have--

Hon. Delegate William Ole Yiaile: But I picked my number, but is my name there?

PLO Lumumba: You now have the floor. Continue.

Hon. Delegate William Ole Yiaile: Okay. Thank you. I agree with what Honourable Shikuku

has said. We must guard the citizenship of this country with jealousy. We should not alter it. If

you look at Article 18, 19 and even 21, all are creating a super highway for foreigners to flock

into this country.

Prof. Yash Pal Ghai: Can you clarify to which--

Hon. Delegate William Ole Yiaile: Yes, I am speaking on Article 18(2).

Prof. Yash Pal Ghai: Thank you. Please continue.

Hon. Delegate William Ole Yiaile: Thank you. Therefore, I foresee a time when probably we

will continue at this rate and going by the way whereby fifty people are dying per day, there is a

day that foreigners will be majority in this country. What I am trying to say is that we are a

dying country. If seven hundred of us are dying per day my friends, we need to do something.

We also need to safeguard the inflow of foreigners into this country. I am moving to say, if a


couple is married outside and when they come they divorce without any children, then whoever

came must go back, because the umbilical cord by which he was born in Kenya was through that

marriage, now that there is dissolution of marriage, mtu arudi kwao (Laughter). Thank you, and

I want you to support that Motion.

Prof. Yash Pal Ghai: Do you want any discussion or shall we put it to--

(Noise from the floor)

Prof. Yash Pal Ghai: I will take one speaker in favour and one against and then we will have a

vote. 530.

Hon. Delegate Florence Mburugu: Thank you, Chair. My name is Mburugu Florence,

Delegate 530. Mr. Chair, looking at what has come up on the citizenship of this country, I think

we are cheapening a little bit too far. This country has its own people and we appreciate what

the outside world is doing and the relationship between ourselves and the outside world. But that

does not mean that we shall open the gates into this country. I am not convinced that if my

daughter married a man out of this country and they divorce, that that man shall continue to be a

citizen of this country, while I am experiencing the hurt that they have caused my daughter.

I feel that when those people divorce, our children should remain in our country so that we

continue to enjoy the freedom and the resources in this country. I therefore support my friend in

saying that when they divorce, let us retain our child and let the other man go back to his

country. Why I am saying this is – Mr. Chair – that men and women will marry for reasons.

They may marry for reasons after targeting the period of years that we have established this.

Once they have achieved that, they will want to go back where they came from. I therefore

suggest that we should not have this. Thank you, Chair.

Prof. Yash Pal Ghai: Okay, I think that is enough. I am only giving one minute to those.

Anybody wishing to speak against the Motion? 531.


Hon. Delegate Mustafa Ali: Chair, thank you. 531, Mustafa Ali. I am totally-- I rise to

oppose the Motion, the Amendment of this Clause. I think seven years is enough for somebody

to come here and if they are married and that person is genuinely going to be a Kenyan citizen, if

somebody is cheeky and just wants to get Kenyan citizenship by marrying anybody here in this

country, then I do not think that marriage is going to last for more than seven years and therefore

the seven years Clause that is there is just enough to get somebody’s willingness to become a

Kenyan citizen. Here, we are not talking about feelings that somebody has been hurt in terms of

when they get divorced and then on that basis you say that, that person should not be a Kenyan

citizens. We are dealing with principles here. Thank you, Chair.

Prof. Yash Pal Ghai: Thank you. I now would like to put the question. Those who support the

proposed amendment under which the words “not lost”, I think, “not” is deleted, which means

basically that if a person whose marriage ends or who gets married either way would lose

citizenship of Kenya. Those who support this Amendment, please raise your number plate in the

usual way, your votes will be counted.

(Counting of votes)

If you are opposed to the Amendment, please raise your placards. The Amendment is defeated

and we proceed on. Thank you. (Clapping)

PLO Lumumba: Mr. Chairman, Article 19 is read, there is a Motion on it.

Hon. Delegate Wangari Maathai: Thank you very much, Mr. Chairman. 084. Mr. Chairman,

this Article is related to the previous Article. It is dealing with nationalization of a citizen and I

definitely think that we should make our citizenship very valuable. We should not really make it

so easy for other people to come and become citizens. We are poor, we have no skills, we have

no capital and it is very easy for people with those things to come into our country and literally

take over and make nonsense of the Devolution we are talking about.

Mr. Chairman, I would recommend that a person be made a permanent resident-- I would like to

move that the words “naturalize a citizen” be replaced with the words “made a permanent


resident”. That is the equivalent for, many of you who know it, the American Green Card. Once

a person is a permanent resident, then they can stay for five years as permanent residents and

after that they can apply to be citizens according to the Act of Parliament.

So, you can read what I have, what the Article should read like, but it is mainly to make a stop

before they are naturalized, they are given a resident position in which case they can participate

in all activities of the nation. The only thing they do not have is the citizenship. In five years, if

they are fully committed, then they can apply for citizenship. Thank you very much.

Prof. Yash Pal Ghai: Could I just have one or two in support and then one or two in opposition

and then we will move to vote. Those who support that and wish to speak? 010.

Hon. Delegate Paul Nakitare: Thank you, Mr. Chairman. Delegate number 010, Honourable

Nakitare, M.P, Saboti. I support the contentions of Honourable Prof. Wangari Maathai by the

amendment of citizenship. If we go by permanent residence, that is the time within which the

Government shall have vetted this person and shall have understood the reason why this person

would want to become a Kenyan citizen and at the time of application, naturalize his former

citizenship so that he can be accepted to be a Kenyan citizen if he is going to prohibit the people

who come here across the border by identity cards or by birth certificates here and become

Kenyan citizens and become a burden to our country. Thank you.

Prof. Yash Pal Ghai: Okay. Those who wish to oppose this amendment in any way, could you

please raise your placards so that I can identify you. 083.

Hon. Delegate Andrew Ligale: Thank you, Chair. When Professor Wangari Maathai, who I

respect very highly, was talking on her Motion, she in fact wants people who have come into

country to be continuously living there for five years before they apply for citizenship. In fact,

this Article says seven years. They should have been residents continuously in this country for

seven years and then they can apply. I do not see anything wrong with this particular Article.


Prof. Yash Pal Ghai: Perhaps I could ask Professor to clarify. It is a little ambiguous, but I

think what she probably means is seven years and then another five years on top of that. Can

you clarify that please, Professor?

Hon. Delegate Wangari Maathai: Yes, Mr. Chairman, that is what I mean that they stay after

instead of applying for nationalization after seven years, that they apply for permanent residency

after seven years, then after five years, they apply for nationalization.

Prof. Yash Pal Ghai: Does anybody wish to oppose the Amendment as clarified by the

Professor? 306

PLO Lumumba: 306, you have the floor, please.

Hon. Delegate Anyang’ Nyong’o: Mr. Chairman, sorry, my number is 153 but it was not there.

Prof. Yash Pal Ghai: You are holding 306.

Hon. Delegate Anyang’ Nyong’o: I do understand the anxiety of Honourable Professor

Wangari Maathai, but I think that can be taken care of in law.

PLO Lumumba: For the record, that is Anyang’ Nyong’o for our verbatim recorders.

Hon. Delegate Anyang’ Nyong’o: That is true, Mr. Chairman. I think that the anxiety of

Honourable Professor Wangari Maathai can be taken care of by legislation. I notice that Article

21 (3) says that, Parliament shall enact legislation providing for conditions upon which the

citizenship of Kenya may be granted to individuals who are citizens of other countries”. Rather

than detailing the steps towards naturalization in the Constitution, I would rather leave it to

legislation to detail the steps towards naturalization.

I think naturalization is very well clearly stated in this Zero Draft and I would rather leave it this

and then the other things that Wangari is talking about are taken of by legislation. Thank you.


Prof. Yash Pal Ghai: Thank you. I would like to move to a vote now. Those who support the

proposed amendment. Let me just summarize; it does two things. It first requires persons who

want to become citizens to apply for a permanent residency which they can only do after seven

years and then secondly to wait another five years before they can apply for citizenship. Those

who support this proposal, please raise your placards.

(Counting of votes).

I ask Delegates who oppose the Amendments to raise their placards please. Well, I think the

Amendment is defeated. Thank you very much.

PLO Lumumba: Article 20 is “Children found in Kenya and adopted children” and there is a

Motion, Mr. Chairman. Sammy Ruto.

Hon. Delegate Sammy Aswani: Point of Order!

Prof. Yash Pal Ghai: What is the Point of Order?

Hon. Delegate Sammy Aswani: Mr. Chairman, my names are Aswani Sammy Amunga,

Delegate number 382. The Motion that has just been posed now by the Secretary is unsigned

according to the document we have here. So, how does is qualify?

PLO Lumumba: It has since been signed.

Hon. Delegate Sammy Aswani: But the document you have given us is unsigned.

PLO Lumumba: I am correcting it from the podium. (Laughter)

Prof. Yash Pal Ghai: Continue, Dr. Ruto.

Hon. Delegate Sammy Ruto: Mr. Chairman, I would like to move an Amendment that seeks to

harmonize the conception of a child. In this section, the Article recognizes only those who are


less than eight years of age while elsewhere, a child is defined as anyone below eighteen. So, I

would like to move an Amendment to delete the words “who appears to be less than eight years

of age” in this Article, so that we harmonize the conception of a child in the Constitution. I beg

to move.

(Consultations at the “high” table)

Prof. Yash Pal Ghai: I will invite one person who supports that and then one who opposes it

before proceeding to a vote. Those who support and wish to speak? 594. Just one minute,

please.

Hon. Delegate Orie Rogo Manduli: Thank you very much. I am 594, Rogo Manduli. I support

the Motion that we cannot write a Constitution with such vagueness. We are talking about

children, we are talking about lives, we are talking about value, we are talking about people that

makes things happens. Children are helpless and I do not think they are only helpless up to age

eight and if our concept in this country of a child is that of somebody under eighteen or up to

eighteen, then let us be consistent.

But if we are going to say “who appears to be under the age of eight”, who is going to determine

if this child is over the age of eight and what decides? How do you decide that a child who is

eight years and one day is no longer desirable and cannot be helped and does not need help? I

think, let us be consistent, if the child is below eighteen, it is a child and I think we should be a

nation that cares for children as long as they are children and we should not say that if they are

eight years and one day, then they no longer need help and we will no longer take care of them.

Children are valuable assets, this country is about people and its equal people. I want you to

know there are some rich countries in the World who have everything they need--

Prof. Yash Pal Ghai: I think you have made your point. I allowed you only one minute, you

have taken two and a half minutes.

Hon. Delegate Orie Rogo Manduli: Chairman, if I may just add, that they have all the

resources but they do not have children and they are no longer producing enough children to


sustain their countries. What they normally have to do is to import people from outside to

“people” their country. So, let us love children and make it inclusive. Thank you, Chair.

Prof. Yash Pal Ghai: Thank you. One person in favour. 131.


Hon. Delegate Mwandawiro Mghanga: Mr. Chairman, I am Delegate 131 and I wish to

oppose the Motion on the grounds that we really have to have an age limit on what time a child is

able to speak for him or herself. A child who is eight years and under, I think really we can

presume that she has not reached an age where she can say, “I wish to be a citizen of this country

or not”. But then a child who is eighteen years or even sixteen or seventeen, surely that child has

a right to say, “I wish to be a citizen of Kenya or I wish to be a World citizen or I wish to be a

citizen of a certain country”. So, even in children really, it is a matter of not presuming, but also

giving their rights to choice, not assuming you are a child of this country. A child of sixteen,

seventeen or eighteen can make a decision for herself, but one who is eight years and under, we

can presume. Thank you.

Prof. Yash Pal Ghai: 556. I have only recognized 556 for point of information.

Com. Salome Muigai: Thank you, Chair. My name is Salome Muigai. I was the Rapporteur for

the Committee that discussed the issue of this Article that we are discussing. The whole idea

about eight-year-old has been spoken to by the previous speaker. It was a child who may not be

able to explain to others who he is and who she is, where she or he was born because they are too

young. By the time a child is ten, fifteen or seventeen, they are people who can be able to be

asked, “who are you” “how old are you, what is your name, who is your father and who is your

mother”. So, we are taking the minimum age at which a child may not be able to express who

she is or who he is. Thank you, Chair. (Clapping)

Prof. Yash Pal Ghai: Thank you. I would like to put the Motion to vote. Perhaps I can just

explain the effect of the Amendment. At the moment, the Draft says that a child found in Kenya

who appears to be less than eight years and whose nationality of parents is not known, is


presumed to be a citizen of Kenya by birth. It is a presumption which of course can be reverted

if we find documentation establishing citizenship of another country. What the Amendment

proposes to do is to remove the expression, “who appears to be less than eight years of age” and

so in order to determine the age up to which point a person can be presumed to be Kenyan

becomes eighteen, because later in the Constitution, we have provided a definition of a child

which is a person less than eighteen years.

So, with that explanation, I would like to put the question. Those who support the Amendment

which will delete expressions, “who appears to be less than eight years of age”, please raise your

placards and we will count your vote.

(Counting of votes).

Prof. Yash Pal Ghai: Those who oppose the Amendment, please raise your placards. The

proposal is defeated and the Article remains as it is subject to formal approval.

PLO Lumumba: Article number 21, “dual citizenship”.

Prof. Yash Pal Ghai: I have to say that the Honourable Godana has withdrawn that and I was

told at the Steering that when a Motion has been withdrawn, I should not call upon the Delegate

to confirm that. I suppose if I have got it wrong, the Delegate will no doubt stand up and correct

me. So, I do not see the Delegate standing up, then the Motion has been withdrawn and we can

proceed further.

(Clapping and consultations at the “high” table)

Prof. Yash Pal Ghai: On 21 there is another Motion. 361, again.

Hon. Delegate William Ole Yiaile: Yiaile. Mr. Chairman, because of speed and time, I want to

withdraw and I will also at the same time request you not to give so much time for this debate

which are wasting a lot of time and we have got a lot of Chapters to cover and we do not want to


leave anything outside this Conference. We want that the time we leave here we have finished

everything. Thank you.

Prof. Yash Pal Ghai: Thank you very much indeed. There is another Motion from Mr. Kiniti

on 21(3) and the Motion is to delete Clause (3). Do you wish to speak to it?

Hon. Delegate John Kiniti: Yes. Thank you, Mr. Chairman. I am John Kiniti, Delegate

number 352, from Laikipia. Mr. Chairman, this Article, Article 21 Sub-Article (3) is to be read

with the Fourth Schedule attached to the Zero Draft and it says that, “Parliament shall enact a

legislation providing for conditions upon which the citizens of Kenya may be granted to

individuals who are citizens of other countries”.

I thought this one, when you look at page 238 of the Fourth Schedule, in Chapter Five, it says

that after two years there will be legislations to set conditions for entry and residency in Kenya

and all other conditions pertaining to that particular issue of citizenship. So, I thought, Mr.

Chairman, that this is more or less an issue of Transition. I therefore thought that if we have two

years and the time period for enacting a legislation on citizenship, surely, I do not think we shall

have the same period even after this Constitution comes into force five years later, ten years later

of even fifty years later. Thank you, Mr. Chairman. I beg to move that we delete that Article

and may be provide for it in the Fourth Schedule of this Draft. I beg to move. Thank you, Mr.

Chairman.

Prof. Yash Pal Ghai: Well, technically, we cannot have something in the Transition which is

not in the main Constitution. So, if your concern is about the period given for the enactment of

legislation, then I think what I would advice you is that when we look at transitional issues, you

can make your point at that point. Is that acceptable?


Prof. Yash Pal Ghai: All right. Thank you. We move on then.

PLO Lumumba: Article number 22 “Deprivation of citizenship”.


Prof. Yash Pal Ghai: 596

Hon. Delegate Hezron Manonda: Mr. Chairman, on citizenship I had requested to move a

Motion there and I have not heard my name and it is on the list of those Delegates who wanted to

move Motions.

Prof. Yash Pal Ghai: Can you give us your name and number?

Hon. Delegate Hezron Manonda: 596, Hezron Manonda, please.

Prof. Yash Pal Ghai: When did you give in your Motion?

Hon. Delegate Hezron Manonda: It is there.

Prof. Yash Pal Ghai: It is there?

Hon. Delegate Hezron Manonda: Yes.

PLO Lumumba: Hezron Manonda.

Hon. Delegate Hezron Manonda: Yes. Manonda, 596.

PLO Lumumba: But you have withdrawn.

Prof. Yash Pal Ghai: But I thought you had told me you were going to withdraw, yesterday

evening when we had a meeting.

Hon. Delegate Hezron Manonda: Yeah, but even if I wanted to withdraw, I should be let to

suggest something to the Conference.

Prof. Yash Pal Ghai: No, you either move this Motion or - you cannot substitute another

Motion for this.


Hon. Delegate Hezron Manonda: Due to the National and International interest and my - the

other Mover has suggested something to be discussed in Transition, so then I am withdrawing

the Motion. (Clapping).

Prof. Yash Pal Ghai: Okay.

Hon. Delegate Hezron Manonda: Yeah, so it is not necessary to leave me behind since I

suggested to move a Motion. Thank you.

Prof. Yash Pal Ghai: Thank you.

PLO Lumumba: Article 22 deprivation of citizenship--

Hon. Delegate Kiriro wa Ngugi: Point of Order.

Prof. Yash Pal Ghai: 320. He has just gone.

PLO Lumumba: Yes.

Hon. Delegate Kiriro wa Ngugi: Thank you, Mr. Chairman. I am sorry to have to raise this

Point of Order. I spent the morning preparing for court and every Delegate here is aware of my

activities in defense of this Conference. As I walked here, I was told that Article number 7

without votes on my Motion, in my absence, was passed. These Delegates were at home when I

went to court to protect so that they come here, the least the one of you should have done, is to

point out to yourselves that this Motion by Kiriro was deferred, he is not here.

I feel very betrayed by the very people I fight for. The very least is that my Motion should have

come before the Article is passed and I wanted this recorded in history, that if you have been

unfair to me, me Kiriro wa Ngugi who is in court as we speak, you can be unfair to every

Kenyan here possible.


Mr. Chairman, I under this protest, when we come to the Chapter on Devolution, shall raise my

Motion again.

(Murmurs on the floor).

Prof. Yash Pal Ghai: Mr. Kiriro, I did look for you when this Motion came up and you were

not here. So, we had to – but you are free to raise a Motion when we come to the Chapter on

Devolution.

Hon. Delegate Kiriro wa Ngugi: The point I am saying is, if I was not here, it is quite possible

for the people here with a little common sense to understand where I might be.

(Uproar from Hon. Delegates).

PLO Lumumba: Let us just proceed.

Prof. Yash Pal Ghai: Yeah, let us proceed. What do you think (?).

PLO Lumumba: I am now on Article 22, which I have read out. I now proceed to Article 23.

Prof. Yash Pal Ghai: Order, Order.

PLO Lumumba: Ladies and gentlemen, Article 23 deals with Residence and Article 24 deals

with Duties of a Citizen. And Article 25--

(Consultation at the “high” table).

Prof. Yash Pal Ghai: So, Delegate 352.

Hon. Delegate John Kiniti: Thank you, Mr. Chairman. Again I am John Kiniti, Delegate

number 352. I had sought to move a Motion to delete Article 23, Sub-Article (2), but due to the

explanation you gave me when I was moving the other Motion on the technicality this involved,


that we have to include an Article on areas to be transited upon, I herewith wish to withdraw

other related Motions; that is number 39, which deals with deletion of 23 (2), number 40 which

also deals with deletion of another Article pertaining to powers of Parliament. I herewith wish to

move that I withdraw all those Motions to enable us move fast in this task. Thank you, Mr.

Chairman. (Clapping).

Prof. Yash Pal Ghai: Thank you very much indeed. Proceed, Secretary.

PLO Lumumba: I will now put the whole Chapter as amended to the vote.

Prof. Yash Pal Ghai: There is no Mover? No. Okay, well we have now looked at each of

these Articles; I believe there are no amendments.

PLO Lumumba: There are no amendments.

Prof. Yash Pal Ghai: There are no amendments which have been carried so, I am now going to

ask you to vote on Article 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25. So, those who

support these Articles, please raise you placards.

Silence.

Prof. Yash Pal Ghai: Maybe those who are opposed to that, please raise your placards.

PLO Lumumba: They must be counted.

Prof. Yash Pal Ghai: I think we need a count, so please those who are supporting it, raise your

placards. I apologize.

(Silence as counting takes place).

Prof. Yash Pal Ghai: Those who oppose the adoption of the Articles, put up your number

plates, please.



Prof. Yash Pal Ghai: If there is any who is abstaining, please now it is your time to just to

indicate your abstention.

PLO Lumumba: Those who want to reserve on specific Articles.


Prof. Yash Pal Ghai: Those who support the Articles in general but have reservation about

some Sub-Clause, can you please also indicate that to the tellers.



Prof. Yash Pal Ghai: Delegates, I now have the count of the vote. For those in support 332

(clapping). There were no negative votes. So, the “AYES” have it. Thank you. (Clapping).

We now move on to Chapter Five on Culture and in the normal way I will request the Secretary

to read the titles and numbers of the Articles.

CHAPTER FIVE

CULTURE

PLO Lumumba: The Chapter is headed Culture. Article number 26, deals with significance of

culture. Article number 27, deals with Principles Concerning Culture. Article number--

Prof. Yash Pal Ghai: There was a Motion submitted by Delegate 220, Honourable Julia

Ojiambo. We had a brief discussion; I am not sure at the end where we left that. So, if she

wants to withdraw or proceed with it, could she please indicate now? of 126

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Hon. Delegate Julia Ojiambo: Thank you, Mr. Chairman. We had wanted to introduce an

Article on the family institution, but we have consulted and compared notes with the Bill of

Rights and we feel that the elements we want to introduce are adequately covered under Article

48 in the Bill of Rights. So, I beg to withdraw.

Prof. Yash Pal Ghai: Thank you very much. I think that is the correct position, this is covered

in the Bill of Rights. Thank you.

PLO Lumumba: Mr. Chairman, I now read Article 28 on the development of culture--

Hon. Delegate John Nyakundi: (Inaudible).

PLO Lumumba: 611, Point of Order.

Prof. Yash Pal Ghai: 611, yes.

Hon. John Nyakundi: Thank you, Chairman for giving me this chance. Before we start, I want

to amend this Article--

Prof. Yash Pal Ghai: You have not given any notice, have you?

Hon. Delegate John Nyakundi: Yeah, I gave a notice of the Motion.

Prof. Yash Pal Ghai: On which Article?

Hon. Delegate John Nyakundi: ..My number is 611, John Peter Nyakundi--

Prof. Yash Pal Ghai: You mean on Article 27 or 28?

Hon. Delegate John Nyakundi: I am moving a Motion on the Chapter on Culture. The title is

Culture, Education, Science and Technology.



Hon. Delegate John Nyakundi: Yeah, my Motion starts--

PLO Lumumba: It is there.

Prof. Yash Pal Ghai: Just go on, I have noticed it now.

Hon. Delegate John Nyakundi: This should come under the Ministry of Education, Science and

Technology as it is in the rules of the UNESCO. I was denied the chance of forming the

Culture’s Commissions, so I decided to bring it here and culture, as you know it is the beginning

of everything. The fundamental basis for culture transformation should be the fight against

illiteracy and the ability of the public institutions.

Second, education is the key to everything and the et al of science. Education and knowledge

can never be acquired in fear, (?) and cowardice. So, I decided this to put under the title,

Culture, Education, Science and Technology because we want our children to be taught in

schools culture, education and everything--

Prof. Yash Pal Ghai: You are only talking of the title or the contents of the Chapter?

Hon. Delegate John Nyakundi: No, the title.

Prof. Yash Pal Ghai: Well, title is the editorial matters, I do not know whether we adopting the

titles of the Chapters here or adopting Articles.

Hon. Delegate John Nyakundi: No, the title. I wanted it to be Culture, Education, Science and

Technology--

PLO Lumumba: That is an editorial--

Prof. Yash Pal Ghai: Yeah. Let us put it--


Hon. Delegate John Nyakundi: Yeah, that is all right.

Prof. Yash Pal Ghai: Anybody in support of that Motion?

(Uproar by Hon. Delegates).

Prof. Yash Pal Ghai: Those opposed to the Motion?

(Uproar by Hon. Delegates).

Prof. Yash Pal Ghai: Well it seems, it is defeated – Thank you.

PLO Lumumba: There is another one.


PLO Lumumba: I now read Article 28, Development of Culture. 29--

Prof. Yash Pal Ghai: Well I do not know whether we take it now or not, but there was a Motion

to introduce a new Article 28, but I had a discussion with Mr. Rakamba who introduced that and

I think we agreed that this really belongs to Representation and not in this - but perhaps he could

-

PLO Lumumba: He is not here.

Prof. Yash Pal Ghai: He is not here?

PLO Lumumba: There is 131, another amendment.

Prof. Yash Pal Ghai: Yes, and there is another one as well--

PLO Lumumba: Mwandawiro Mghanga.



Hon. Delegate Mwandawiro Mghanga: Mr. Chairman, I rise also to introduce another Motion

which is intended to be just immediately after Article 28 and that Motion, the Article should

read; “the African traditional courts systems”, 28 (a) (i) there is established the African

Traditional Court Systems whose functions, composition and structure shall be prescribed by an

Act of Parliament.

(ii) The state shall encourage, promote and facilitate African Traditional methods of resolving

conflicts and disputes which are consistent with the Constitution.

(iii) The state shall recognize our traditional oathing systems in the judicial system and other

offices.

I need really not to explain further why I want to request the Honourable Delegates to support

this Motion.

Prof. Yash Pal Ghai: Could I just interrupt you for a minute, to suggest that maybe this

proposal belongs to the Chapter on the Judiciary and not on Culture?

Hon. Delegate Mwandawiro Mghanga: With all due respect Mr. Chairman, in our Committee

of Culture which was actually dealing with this, we read throughout the whole Constitution, we

saw that really our African way of dealing with property, with how we marry one another and

how we own and dispose of property and how we resolve disputes and including even the oaths

which we take, this is something which has not emphasized enough and we wanted it as a

principle in the Chapter on Culture so that it becomes really a basis which can be read together

with other Articles so that from now hence forth, we start knowing that we can save a lot of

money, we can save a lot of time by really having systems which had resolved - already systems

which exist in Africa. If you go to the villages, we have African systems which exist today

really where people deal with a lot of disputes and which can save a lot of time and even in the

long run, resolve disputes if they are really entrenched in the Constitution. That recognition is

the one which we wanted to be in the Chapter on Culture. (Clapping).



Prof. Yash Pal Ghai: There is a Point of Order, there.

Hon. Delegate Levi Ahindukha: I am 379, my name is Ahindukha, representative Kakamega

District. Mr. Chairman, as much as we would like to support this Article as he is putting it, is it

in order for the Mover of this Motion to bring this to this Conference when he was a member of

Culture, Mr. Chairman?


Prof. Yash Pal Ghai: I think we can proceed on the substantive issues. I will ask for one

Delegate who wants to support this and one who opposes it and then we will proceed to a vote.

275.

Hon. Delegate Julius M’Mworia: Mr. Chairman, I rise to support this Motion with the greatest

will. Mr. Chairman, in this Conference we are called upon by the people of Kenya to revive our

culture which was destroyed by the European Colonialists. It is obvious that when you want to

control people, you destroy their culture, which is their foundation. Mr. Chairman, this is what

the Europeans did in order to control us with ease.

Mr. Chairman, they destroyed all aspects of our culture and one aspect of this which they

destroyed is the African Judicial System, demonizing it as laws of savages. Now that we are

making--

Prof. Yash Pal Ghai: You have half a minute more, please.

Hon. Delegate Julius M’Mworia: Now that we are making this Constitution to restore our

natural rights, it is better for this Conference to entrench African Customary Judicial Systems in

this Constitution and make Kenya customary laws one among the pillars of cultural revival.

With these few words Mr. Chairman, I beg to support. (Clapping).




Prof. Yash Pal Ghai: One person who wishes to oppose this?

Hon. Delegate Isaiah Kubai: Point of information.

Prof. Yash Pal Ghai: Point of information, yes please.

Hon. Delegate Isaiah Kubai: Now, the matter being raised Mr. Chairman is already taken care

of – My name is Kubai from the Trade Union, 448.

The matter being raised now is dealt very substantively under Section 209 (3) (c), so the

traditional courts are already there, so the fear that is being expressed by anybody here is already

taken care of. Thank you, Chairman.

Prof. Yash Pal Ghai: Yeah, I thought so too that, that was covered by that but since he -


Prof. Yash Pal Ghai: Could I ask you whether you think that 209 does not sufficiently cover

the concerns that you have?


Prof. Yash Pal Ghai: Okay, then I would like to hear one in opposition and then to move to a

vote.

PLO Lumumba: 185.

Prof. Yash Pal Ghai: 185, any opposition to it.


Hon. Delegate Sasura Abdi: Thank you, Mr. Chairman. 185, Sasura. Mr. Chairman the

proposal by the Honourable Mover of the amendment will definitely destabilize the Chapter on

the Judiciary in as far as 207 (3) (d) is concerned because the sentiment he is expressing is

adequately covered under 207 (3) (d) where reconciliation, mediation and arbitration between

parties and use of traditional courts shall be promoted, so it will definitely conflict with the

Chapter on Judiciary and it will force us to make further amendments when we reach that

Chapter. So, I stand to oppose.

Prof. Yash Pal Ghai: Yes, I also feel that it is covered and we are trying very hard to eliminate

volume in this text and if you insist and then proceed to a vote. So, those who support this

particular amendment, which is actually a new Article, please raise your cards.


Prof. Yash Pal Ghai: Those who are opposed to it.


Prof. Yash Pal Ghai: I think there is a majority against it so the Motion is defeated. Thank you.

PLO Lumumba: I now read Article 30. Remember I read 29 on Transmission of Culture. 30

is on Traditional Science and Technology, Indigenous Knowledge and Intellectual Inventions.

Article 31 is Cultural Expression and Conservation.

Prof. Yash Pal Ghai: I think we have some Motions on 30. I do not know how they would –

Delegate 397, David Erulu.

PLO Lumumba: He has withdrawn.


Prof. Yash Pal Ghai: He has withdrawn, okay. And then Martha Rop, Delegate – I do not have

the number here, but Honourable Martha Rop who has a proposal to amend 32 (c). I think 32 (c)

is dealing with traditional practices--

Hon. Delegate Yusuf Haji: Point of Order.

Prof. Yash Pal Ghai: Yes, please. Yes, Mr. Honourable Haji.

Hon. Delegate Yusuf Haji: You will forgive me, I did not intend to raise a Point of Order, but

because you could not see me, I had to use this for you to help me.

Mine is not a Motion, but I am just wondering whether one can record his objection to a

particular section of the Article, particularly 30 (c) where it states; encourage the people of

Kenya to rediscover and apply the value of traditional farming system, diet and traditional

drinks. I wanted my objection to be recorded on traditional drinks, because if this is changaa

and other things, I am objecting to it.

Prof. Yash Pal Ghai: The position is, that you can register your dissent, indeed when I call for

voting the last of the four votes I call for, are people who approve of the Article but reject one or

more Clauses. So, you are free to do that and this is duly recorded by your tellers.

(Discussion on the floor).

Hon. Delegate Chesmei Wambulwa: Point of Order.

Prof. Yash Pal Ghai: 376, is that a Point of Order?

Hon. Delegate Chesmei Wambulwa: Thank you, Chairman. I would like to answer the last

speaker that traditional drinks like chang’aa, chang’aa has not actually, the way I know, been a

traditional drink. The traditional drinks we know are busaa, muratina and--

Prof. Yash Pal Ghai: I do not think we need to go into that. Thank you.


Hon. Delegate Chesmei Wambulwa: Thank you, but--

Prof. Yash Pal Ghai: Mr. Shikuku.

Hon. Delegate Martin Shikuku: Mr. Chairman, I rose on a Point of Order, but now it has been

covered. Chang’aa has never ever been a traditional drink.

Prof. Yash Pal Ghai: Okay, thank you very much. So – yes, please. 509.

Hon. Delegate Martha Rop: I think I have been mentioned to talk because the Motion actually

was mine. Now, is see they were interfering with what I was going to tell them. Could I

continue?

Prof. Yash Pal Ghai: Yes, you have the floor, sorry, I thought you were--

Hon. Delegate Martha Rop: Thank you, Chairman. I think the Motion on culture32 (c), I am

moving a Motion on (c) to read “encourage the people of Kenya to rediscover and apply the

value of traditional farming system, diet and your Drafter made a mistake to leave the word

“except traditional drinks”. Only during ceremonies, why? Because mimi nitaongea kwa

Kiswahili ili muelewe kwa sababu wale wanakunywa busaa ama wale wanatengeneza traditional

drinks ni wale wanaongea Kiswahili. Wacheni niwaambie, najua kutengeneza hiyo chakula kwa

sababu tulikaa na nyanya yangu. Ningependa muelewe ya kuwa, wakati tunatengeneza Katiba,

tusisahau ya kuwa, wengi ambao wataumia, ni wale wanajua maana yake ama la.

Nafikiri katika hii kikundi ama hii Kongamano wengi wemetoka kwa districts ambazo kuna

mahindi na wimbi, an hao ndiyo wanatengeneza busaa. Nitawaambia hatari moja ya busaa na

naweza kuunga mkono serikali fulani ambaye ilikuwa hapo awali, yule ambayo alipaga

marufuku busaa, wengine wetu hatungekuwa hapa kwa sababu wazazi wetu labda

wangetuchoma. Ninasema hivyo nikujua akina mama ndio watapata taabu, wakati tutasema ya

kuwa drinks zikuweko ya cultural, sio mbaya lakini tuchukue kwa mfano, nimetembele shemeji

yangu pale Coast na nilipopata wale ambao hawajasoma huko nikauliza mbona watu


hawasomi? Wakasema ni ile mnazi ndio imeharibu hawa, si unaona wanalewa tu, number moja.

Ya pili.

Prof. Yash Pal Ghai: If you can wind up now, please.

Hon. Delegate Martha Rop: Ya pili, nikirudi kwa muratina. Tafadhali niwache niwaambie

Bwana Chairman ya kuwa ninataka hii kipengele iwekwe watu wakule kila aina ya chakula

lakini kinachoitwa kinywaji cha kienyeji iweko tu labda kwa wale bado wanaamini mambo ya

kimila ambao labda ni wale Waluhya wetu wale wanapiga chinyimbaa na wale ambao bado

wanatahiri pale nyumbani. Lakini bure tukiweka hii vijana wetu hawatasoma kwa sababu hiyo

busaa ndio –

P LO Lumumba: Mwenyekiti anasema umemaliza kusisitiza mada, tafadhali.

An Hon. Delegate: Point of Order, Mr. Chairman.

Prof. Yash Pal Ghai: Who wants a Point of Order? 235. Yes.

Hon. Delegate Reuben Tsuma: Thank you, Mr. Chairman. My name is Reuben Tsuma,

Delegate number 235 from Kilifi District.

Prof. Yash Pal Ghai: Order, order please.

Hon. Delegate Reuben Tsuma: I take the greatest exception to the insinuation by the

Honourable Delegate that Coast people are not going to school, that there are just many drunk

children. This, I take with exception very, very severely. I want to inform the Honourable

Delegate, Coast people, like any other region, strive to take their children to school and I am not

taking it too lightly and please, if you do not understand the history of Coast people come, live

with us and do not just take statements from here and there.

Prof. Yash Pal Ghai: Please, sit down. I intend to put this to vote. Those who support the

Motion, please raise your placards.


Hon. Delegates raise their placards.

Prof. Yash Pal Ghai: Those who are opposed to the amendment, please raise your placards.

(Hon. Delegates raised their placards).

Prof. Yash Pal Ghai: The Motion is defeated. Thank you. We move on.

P LO Lumumba: I now read Article 32 – Establishment of --

Prof. Yash Pal Ghai: Sorry, there is one more Motion that I have received on 32 (e) from

Delegate 313, Mr. Gichuru. He is proposing replacing “seat” by “geoblasam.” (Laughs)

Geoblasam is a technical term; maybe he would like to speak to it. Delegate 313.

P LO Lumumba: Delegate Gichuru 371, please are you present?

Prof. Yash Pal Ghai: If not then we move on. So please continue, Secretary.

P LO Lumumba: 371, please rise and speak to your Motion, Sir.


Hon. Delegate James Koske: Thank you very much, Mr. Chairman. May I correct you. My

name is Dr. James Koske, I am not Gichuru, Delegate number 361, representing Kericho

District. Mr. Chairman, I would like to propose an amendment to Article 32 (3) (m) by deleting

the word “electronic and print” and replacing those particular words with the words

“appropriate”. Mr. Chairman, I think the Article in its essence tries to encourage the National

Commission on Culture to popularize culture by utilizing various types of media. In this

particular Article or Sub Article, the utilization of electronic and print media, I find, is limiting

(Uproar) and I suppose--

Prof. Yash Pal Ghai: Yes.


Hon. Delegate James Koske: This, Mr. Chairman, enables the Commission to expand its forms

of popularizing culture.

Prof. Yash Pal Ghai: Point of Order.

Hon. Delegate Rita Katamu: A Point of Order.

Prof. Yash Pal Ghai: Who has a Point of Order? 381.

Hon. Delegate Rita Katamu: Thank you Chair. I am Katamu, Delegate number 381. I just

want to remind you Chair that you are skipping Sub Article (k) where I have a Motion, please.

Prof. Yash Pal Ghai: Sorry, I did not follow your Point of Order. I am sorry I had difficulty

hearing you. Can you repeat your Point of Order, please?

Hon. Delegate Rita Katamu: I am Delegate 381, I had a Motion or I have a Motion to amend

Sub Article (k) and my dear ---

Prof. Yash Pal Ghai: But that is not a Point of Order. I mean, you will have your turn.

Hon. Delegate Rita Katamu: But he is ahead of me, he is already on (m) and (k) is being

skipped, Honourable Chair.

Prof. Yash Pal Ghai: Yes, okay. Please proceed.

PLO Lumumba: Proceed, please.

Prof. Yash Pal Ghai: Please proceed and--

P LO Lumumba: Proceed on (k). Gachuru wa Karenge you are noted.


Hon. Delegate Rita Katamu: Thank you, Honourable Chair. I am Rita Katamu, Delegate

number 381 from Butere-Mumias. Actually, I beg to add the words, “legally protected” so that

(k) reads, “to promote traditional and contemporary Kenyan performing and creative artists and

practitioners and ensure that they are recognized, appreciated and legally protected in Kenya”. I

have added the words, “legally protected” because most of the time our artists have never been

legally protected and all the work they have been doing or have done has been taken away from

them and they have never benefited. Therefore, I beg to move.

Prof. Yash Pal Ghai: I believe there was somewhere a provision for legal protection of property

rights, intellectual property rights, but I cannot see it right away. I am told it may be 65, let us –

Yes. 65 deals with property protection.


PLO Lumumba: The 365 really covers the point, Mr. Chairman. Property, I believe, is defined

to cover intellectual property.

Hon. Delegate Rita Katamu: Thank you. If it is captured then I beg to withdraw. Thank you.

Prof. Yash Pal Ghai: Thank you very much. Next one is 394.

Hon. Delegate Gacuru wa Karenge: Point of Order, Mr. Chairman.

PLO Lumumba: Gacuru wa Karenge has a Point of Order.

Prof. Yash Pal Ghai: Who has a point of order?

PLO Lumumba: 314.

Prof. Yash Pal Ghai: Yes. Well, I thought you were anyway next because --


Hon. Delegate Gacuru wa Karenge: Mr. Chairman, when you called Gacuru, I thought you

were in Article 30, Sub Section (2) and then we were to go from there to Article 31 and we have

a Motion there.

Prof. Yash Pal Ghai: But the Secretary has read 31 so please proceed with your Motion.

Hon. Delegate Gacuru wa Karenge: Thank you, Mr. Chairman. I want to be very quick. On

Article 31 (e), I was requested-- I attended a session at the Culture Committee and I was

requested by that Committee to bring a Motion to the effect that in the original Zero Draft, under

section 15 (e) Sub Section (8), they had those words in that section which was omitted in the

revised Zero Draft. So, through you, I would ask the Convenor of that Committee, Mr. Nakitare,

Delegate 392, to respond to that. If they still want those words inserted under section (3) (i) (e)

then on that basis I would beg to move.

Prof. Yash Pal Ghai: You will remember that yesterday they rejected your proposal to have a

national dress but we could consider that as a wish of the Delegates.

Hon. Delegate Gacuru wa Karenge: Mr. Chairman, as I have explained, strictly speaking this

was not my Motion, it was a Motion from the Culture Committee. That is why I am requesting

through you that the Convenor of that Committee, Delegate 392, Mr. Nakitare, responds to that.

If the Committee wants those words there then I beg to move. If they are satisfied then we can

get it out.

Prof. Yash Pal Ghai: On usual procedure but okay, Mr. Nakitare.

Hon. Delegate Paul Nakitare: Thank you, Chair. Indeed, this particular words had been

expunged when the issue was being dealt with by the Drafters and the reason behind it, although

the national dress idea was not accepted yesterday, the import of inclusion of this Article is that

the purpose of culture is to express our uniqueness, and also to express our identity. The issue of

national dress and other paraphernalia related to this is meant to increase or enrich our national

cohesion. It is not, Honourable Chair, that anybody is going to be forced to use a national dress.

The national dress will be a variety of dresses from all the communities of Kenya and people will


use whatever they want and that which eventually will be popular, will become a national dress.

Thank you.

Prof. Yash Pal Ghai: Anybody who wishes to oppose, or speak in opposition to this? 235.

Hon. Delegate Reuben Tsuma: My name is Reuben Tsuma, Delegate number 235, Kilifi

District. Mr. Chairman, I want us to go back because you gave us direction that actually is not

true in nature. You said that the amendment on Clause 32 (k) by the Honourable Delegate across

the other side, was covered elsewhere under Article 65. I have gone through Article 65 and what

actually you told us to be the cover is not there at all. That being the case, I would want you--

Prof. Yash Pal Ghai: Can I just interrupt you, please?

Hon. Delegate Reuben Tsuma: Yes.

Prof. Yash Pal Ghai: This is covered in the definition Clause, which appears on page 226.

Hon. Delegate Reuben Tsuma: Then, if that is the case, let me go to 226.

PLO Lumumba: It is covered.

Prof. Yash Pal Ghai: It is covered because sometimes terms are defined at the end of the

Constitution in a separate Chapter dealing with definitions.

Hon. Delegate Reuben Tsuma: But Mr. Chairman, the point I am trying to raise here, our artists

in this country have tremendously suffered, particularly--

Prof. Yash Pal Ghai: No, no, we do not disagree with that. All we are saying is that intellectual

property rights, which cover those things, are included in the definition of property. So this point

is covered already.


Hon. Delegate Reuben Tsuma: Would it be anymore expensive to expound here by putting the

words “—

Prof. Yash Pal Ghai: It is not a matter of expensive, it is a matter of having covered the point or

not and we have covered the point!

Hon. Delegate Reuben Tsuma: Okay.

Prof. Yash Pal Ghai: Thank you. Well, I was actually looking for a Delegate who wants to

oppose the Motion by Delegate 394. So, does anybody wish to speak or shall we proceed to a

vote? 411.

Hon. Delegates: Vote.

Prof. Yash Pal Ghai: Vote, alright. Those who support this Motion which includes the addition

of the words, “and encourage the people to design, develop and popularize the use of a national

dress code and costumes which are culturally acceptable”. The language is a little big but we can

proceed to vote. Those who support this Motion, please raise your placards.


Prof. Yash Pal Ghai: Those who oppose the Motion?

An Hon. Delegate: Point of Order.

PLO Lumumba: There is Order.

Prof. Yash Pal Ghai: I think the Motion is defeated. Thank you. (Uproar) There are not

Points of Order when we are voting, please.

An Hon. Delegate: (Inaudible).


Prof. Yash Pal Ghai: No, we proceed on, please.


Prof. Yash Pal Ghai: Yes, 314 has raised the issue which we discussed last night. He has

proposed a new Clause in 33 to read, “upon the coming into force of this Constitution,

Parliament shall enact legislation to give effect to the provisions of this Chapter”, and my

comment to him was that there is obligation in all State organs to give effect to provisions of this

Constitution and it may not be specially necessary to provide for that.


Hon. Delegates: No!

Prof. Yash Pal Ghai: Wait a minute, let me consult my colleagues here.


Prof. Yash Pal Ghai: Yes, the Secretary tells me that the last Clause in 32, “to perform such

other functions as may be prescribed by legislation,” covers this point. Yes, 314.

Hon. Delegate Gacuru wa Karenge: Yes, Mr. Chairman. I am Gacuru wa Karenge, Delegate

314. Yes, you explained that. If it is clear that this section is covered, that Parliament will pass

legislation to give effect to this Chapter then on that basis, I wish to withdraw the Motion.

Prof. Yash Pal Ghai: Thank you very much. Professor Maathai you also had a slight

amendment to 38 (2).

Hon. Delegate Wangari Maathai: Thank you very much, Mr. Chairman.

Prof. Yash Pal Ghai: Oh, I beg your pardon. We are not there yet, please forgive me. So we

have now covered all the Articles in Chapter 5. Have there been any amendments?


PLO Lumumba: Twenty six. Let me just read the last one which is 33; “The 26 th day of

October in very year is designated a cultural day” - December of course, it cannot be any other

day.


Prof. Yash Pal Ghai: Yes. So, shall I now put these Articles to vote?


Prof. Yash Pal Ghai: Those who support the Articles and want them part of the Draft

Constitution, will you please raise your placards. This time we will have to count the votes, so

please keep the placards up for a while so that the tellers can record your vote. To the Articles,

please raise your placards?

(Counting and recording of votes).

Prof. Yash Pal Ghai: Those who wish to abstain? Those who have reservation on particular

Articles? Perhaps if you have come and let the tellers know about it.

(Consultation at the “high” table and counting and recording of votes).

Prof. Yash Pal Ghai: You just wait for a few minutes so that we have the count. I can announce

the results and then we can adjourn for lunch. Please, stay until that has been done.


Prof. Yash Pal Ghai: I now have the results, 332 Delegates support the Articles. There are no

“NAYS” and one Delegate has objected to one Sub Clause, so the “AYES” have it and with that

I adjourn the meeting for lunch. We had agreed in Steering this morning that we will have no

more than one hour for lunch and so I expect you all here at 2.00 0’clock. The Secretary would


like to request those who have introduced or wish to introduce Motions and given us notice to

meet us over the lunch hour.

PLO Lumumba: Please, could you who have Motions on the Bill of Rights, kindly proceed to

meet the Chair in his office and we will direct you to the boardroom. Thank you very much.

The meeting adjourned at 1.00 pm for lunch.

Afternoon Session

Session reconvened after lunch at 2.20 p.m. with Prof. Yash Pal Ghai in the Chair.

PRESENTATION OF CHAPTER SIX:

THE BILL OF RIGHTS.

Prof. Yash Pal Ghai: We will now read the Articles from Chapter 6, the Bill of Rights and I

would ask those who have Motions for amendment under the different Articles of the Bill of

Rights to ask for the floor at the relevant time. Thank you.

PLO Lumumba: Thank you very much, Mr. Chairman. I am now reading from page 20,

Chapter 6, the Bill of Rights, Part I – General provisions relating to the Bill of rights.

Article 34 - Fundamental rights and freedoms.

Prof. Yash Pal Ghai: Order please, if you can. Please be quiet.

PLO Lumumba: Article 35 - Duty of the State to promote rights and freedoms.

Article 36 - Application of the Bill of Rights.

Article 37 – Enforcement of the Bill of Rights.

Article 38 – Authority of the court to uphold and enforce the Bill of Rights.



Prof. Yash Pal Ghai: I thought that Professor Maathai had a Motion, but I believe she is not

here so let us proceed.

PLO Lumumba: Article 39 – Interpretation of the Bill of Rights.

Prof. Yash Pal Ghai: Also on Article 38, Honourable John Kiniti, 352, is he here? Okay, we

proceed then.

PLO Lumumba: Article 40, on Limitation of rights.

Prof. Yash Pal Ghai: I have a request from Delegate 294, Honourable Victoria Musyoka.

Hon. Delegate Victoria Musyoka: Thank you Chair. My names are Victoria Mutheu Musyoka,

Machakos District Delegate. I seek to delete this Article from the Draft since it is contrary to the

spirit of the Constitution which on the one hand gives rights to all Kenyans and yet by this

Clause in effect is seeking to remove them from the Muslim community and in particular the

Muslim women. The Muslims are surely entitled to just as much protection under the law as the

rest of the Kenyans are. This Article is against the spirit of the Bill of Rights because it is

legalizing or it is seeking to legalize discrimination with no room for legal recourse for any

aggrieved party. Here I have in mind the case of the Nigerian woman who was almost stoned

because she had conceived out of wedlock and her life was only saved by the international cry

for her life. This Article also is discriminatory to the Muslim marriages--

Prof. Yash Pal Ghai: Can I please interrupt for a minute to clarify the point that we are not

providing for any criminal sanctions under Islamic law. We are talking of marriage, divorce,

inheritance and children. So, please stick to the issues involved in these Articles.

Hon. Delegate Victoria Musyoka: It is okay then. It is rather hard to discuss it without pointing

out some of these things because that is what it entails. So, point number three, it is

discriminating on the Islamic marriage because according to the CKRC report, on the main

report of 4th March 2003, page 259 and I quote – these were the arguments which were put


forward by the Muslims for the establishment of Kadhi’s Courts - what they said, “for Muslim

women the courts had to be an important side for resisting oppression experienced in marriage

and in domestic circumstances in a traditionally patriarchal and male dominated society” So, the

interpretation of this means that then there is existing serious violation of the Muslim woman

within the Islamic marriage and yet if we include this Clause, it is seeking to exempt them from

the application of the Bill of Rights on equality where they could be finding redress in cases

when the Islamic law is rigid on them.

The Clause is also giving special treatment on the Islamic religion, in particular the Muslim

women because it is giving-- And on this point my question is-- Rather bearing in mind that

yesterday we all agreed that there should be no entrenchment of any religion in the Constitution

when we shot down Kihara’s Motion then--

Prof. Yash Pal Ghai: Okay, can you wind up now, please?

Hon. Delegate Victoria Musyoka: Yes, I am winding up. My question is, “should other

religions and cultures also seek for exemption from Clauses that are against their beliefs and

practices?” I have in mind the female genital mutilation, early marriage and wife inheritance. In

my conclusion then, by deleting this Clause we will not be depriving Muslims of their rights to

use the Kadhi’s courts when they want to, but at the same time if we include this Clause it means

that we will be depriving them, forcefully depriving them their general rights as this Clause is

seeking to do. With these few remarks, I beg to move.

(Inaudible debate on the floor).

Prof. Yash Pal Ghai: Anybody who supports this amendment and wants to speak? I will take

one speaker. 579.

Hon. Delegate Daniel Rasugu: Daniel Rasugu, 579. I beg to support the Motion on the

following grounds: In my observation, there appear to be some force or forces bent on diving the

Nation of Kenya along religious lines. I do not understand why for instance this Article or Sub-

Article should provide only for Muslims as if we do not have other religions in his country.


What we should do is that the Kadhi courts are acknowledged, they are already established under

Article 185 and the Bill of Rights should apply to all Kenyans irrespective--

Prof. Yash Pal Ghai: I should clarify that this Article is not dealing with Kadhi courts. We

have not got that far.

Hon. Delegate Daniel Rasugu: Chairman, with due respect, I would like to say that what I am

trying to say is that the rights as enjoyed by Muslims should not be enjoyed only by Muslims.

These rights as provided for under the Bill of Rights should be enjoyed by all Kenyans

irrespective of their religious background. So, the moment we start mentioning Muslims here is

that we are trying to have an assumption that they are the minority and there are no other

minorities. So, I support that if we do not want to divide this nation along such lines as religion

or faith, then we should delete this accordingly. Thank you.

Prof. Yash Pal Ghai: Those who wish to speak in opposition to this amendment, please. 15.

Hon. Delegate Billow Kerrow: Thank you, Mr. Chairman. My name is Billow Kerrow,

Delegate number 015. Mr. Chairman, I rise to oppose the Motion by the Honourable Delegate.

Now, the Sub-Article 4 does not exclude the Muslims from the provisions of the Bill of Rights.

It simply qualifies – it qualifies to the extent that the Muslims - the Islamic law for those who

prophess Muslim faith can apply their laws regarding marriage and so forth. So, it does not

exclude us, we will be benefiting from the Bill of Rights. If anybody loses by this provision, it

would be the Muslims and we are the Muslims who are saying we are not going to lose by

having this exclusion Clause. So, I do not think it is in order for the Honourable Delegate to

imply that the Muslims will lose or that the Muslims women will suffer or that it is going to be

deprivation of their rights and I think I want to affirm here that we have gone through this and

we are satisfied that this Article simply allows the provisions of the personal law relating to the

marriages and divorce to be effected but it does not exclude us from the general provisions of the

Bill of Rights and I think in that respect therefore, I want to oppose the Motion by the

Honourable Delegate. Thank you.

Prof. Yash Pal Ghai: Thank you. Delegate 470.


Hon. Delegate Sophia Abdi: Thank you, Mr. Chairman. My names are Sophia Abdi and I

would like to oppose the Motion. Being a woman who will be really affected by that Clause I

am begging to move that I am not discriminated as it appears and as my sister who was moving

the Motion says. I am not discriminated and it was requested or appealed that we the Muslim

ladies in this country requested this Honourable Conference and we are saying that in line with

inheritance, marriage and divorce, we want to be exempted in the Bill of Rights because for

example, if I give you an example on inheritance the Muslim women are able to inherit about

75% as it is now but when we inherit under the Bill of Rights we are going to be subjected to

reduction. We will be able now to inherit less than what we are qualified for now. That is why

we are asking that we are exempted because we have similar provision, we are supposed to

inherit from our husbands, from our brothers, from our mothers, from our sisters and from our

distant relatives. That is why we are asking and we are pleading with you our Honourable

Delegates that we are exempted, because that, if we are not exempted, will discriminate against

us, we will have a problem and we will be marginalized further. So, we are requesting you that

that exemption is to our favour, we requested it and we do not see why it should affect any other

person. It is affecting us and we are telling you Honourable Delegates, that it is not going to

marginalize us. Thank you very much.

Prof. Yash Pal Ghai: Thank you. I would like to put it to vote now. Those who support the

Motion that--

An Hon. Delegate: Point of Procedure.

Prof. Yash Pal Ghai: No, I am sorry I am going to put this to vote that this amendment-- who

support this amendment which has the effect of deleting Sub-Section (4) of 40 which provides

for the application of Islamic law. Those who support that please raise your placards and your

votes will be taken. The Motion was read by the mover, the Motion is that Clause (4) of Article

40 which deals with the application of Islamic laws should be deleted. Those who support that

please raise your placards.

No raised placards.


Prof. Yash Pal Ghai: Those who oppose the Amendment.

Placards raised.

Prof. Yash Pal Ghai: Well, I think the Amendment is defeated. We move on. (Clapping).

PLO Lumumba: Mr. Chairman, I now proceed to read Part II – Fundamental rights and

freedoms.

Article 41 – The right to life. I pause because there is a Motion. (Laughter).


PLO Lumumba: 311, Joachim.

Hon. Delegate Father Joachim Gitonga: Mr. Chairman, my Motion on this Article 41 is very

short. I move that we add two Clauses, one in Sub-Article (1) which says, “every person has the

right to life” I add from “conception”. This is what I am moving to be added. “Every person has

a right to life from conception”. The other Clause which I would like to be added is that

“abortion is not allowed unless on the medical advice where the life of the mother is in danger”.

Mr. Chairman, I would like to say here that there are many abortions going on everyday in

Kenya but multiplication of crimes does not justify legalizing crimes of the same nature. Just as

that we cannot legalize theft because there are so many people who are stealing people’s

property. Thank you Mr. Chairman.

Prof. Yash Pal Ghai: Thank you. I will take one speaker in favour and then two in opposition.

586.

Hon. Delegate George Mburu: Thank you. Mwaura Mburu, 586 from the Political Parties. I

personally support that Motion and I sit down.

PLO Lumumba: Information, 455.


Prof. Yash Pal Ghai: Information, 455.

Hon. Delegate Lawrence Mute: Thank you, Chair, my name is Mute. Chair, I wish to inform

you and this Conference and also seek your intervention. Chair in the Technical Committee on

the Bill of Rights, we did discuss this Article at great length and Chair even Sub-Committees

were formed to discuss the matter and we heard from all sides, Chair and I believe that we had

come to a consensus and we had voted and agreed on it as Committee Chair and Chair, I think it

is very disappointing that for some reason the language which we adopted as a Committee got

lost somewhere in this whole process, Chair. So, I do not whether this will be of any use at point

in time, Chair but honestly that we will discuss this matter when we had resolved it in the

Committee and when everybody thought that we had a good consensus. I do not know what

needs to happen, because I do not have the language here which we had agreed upon. If we

should not even require that we go back to the Minutes and the previous Zero Draft, so that we

get the right language. Thank you.

Prof. Yash Pal Ghai: 581. Assuming 581 is opposing the amendment because I am now asking

for those opposed to the Amendment.

Hon. Delegate Yusuf Aboubakar: Thank you, Mr. Chairman. My name is Yusuf Mahmoud

Aboubakar, 581. Mr. Chairman, I wish to oppose the Motion on the grounds that there has been

a presentation on when life starts and we have been advised that this is a domain where even

science has not conclusively determined when life starts. So, it will be very dangerous to

categorically state in the Constitution that it starts from conception. I think it is safe if we say

that life has to be protected in the Constitution as to when life starts that could be left to the

interpretation of courts with the developments of the scientific finality on that issue. So, I

caution Honourable Delegates, that it is very dangerous at this stage to state categorically in the

Constitution that life starts from conception and then after two or three months science is able to

prove that it starts earlier than conception. So, I think we should leave the way it is. Thank you

very much.

Prof. Yash Pal Ghai: 180. Order please, order.


Hon. Delegate Sammy Rutto: Mr. Chairman, I rise because I had similar Motion and I think

from the onset I would like to object to the position of the Delegate that has just sat. We cannot

fail to define life simply because we anticipate some scientific discovery. In fact, it is a risky

thing not to define life. Now, I would like to say this I will withdrawal my Motion and support

the Motion that has been given by the other Delegate on the following grounds. Allow me to

expound on it briefly--

Prof. Yash Pal Ghai: Which is your Motion?

Hon. Delegate Sammy Rutto: The next one.

Prof. Yash Pal Ghai: The next one, yes.

Hon. Delegate Sammy Rutto: Yes.

Prof. Yash Pal Ghai: Yes, okay go on.

Hon. Delegate Sammy Rutto: It is dangerous Mr. Chairman, not to define where life begins.

Life must be visualized as occupying a natural continuum, beginning from a certain point and

ending at a certain point. We must be clear about that one. Living does not begin when human

beings are born, no, with capital no, it begins earlier. Now, personhood does not begin when we

are born, birth in fact, is a stage in human growth, it is not the beginning of it. It is a stage of

transition in the maturity of life, it does not negate the beginning of that life. Any science that

does not agree with this is misguided, mind you--

Prof. Yash Pal Ghai: Thank you very much.

Hon. Delegate Sammy Rutto: --it is not-- That is not any more any privileged than the

beginning and end of life. In fact, it is absurd--

Prof. Yash Pal Ghai: Point of Order. There is a Point of Order, please. Hold on.


Hon. Delegate Yussuf Haji: Mr. Chairman, I am 031, Mohamed Yussuf Haji. I would like to

support the Motion as proposed because--

Prof. Yash Pal Ghai: Sorry, I thought it was a Point of Order.

Hon. Delegate Yussuf Haji: I just wanted to make that--

Prof. Yash Pal Ghai: I am sorry, you have interrupted the speaker, sit down, please. Continue.

Hon. Delegate Sammy Rutto: Let me continue.

(Laughter & Inaudible discussion on the floor).

Hon. Delegate Sammy Rutto: Let me continue. As a Delegate, 180, I want this--

Prof. Yash Pal Ghai: But please just take a few more seconds and then wind up.

Hon. Delegate Sammy Rutto: I am finishing. It is absurd to leave that definition as arbitrary,

because it could as well begin at 40 as some people say. We must begin to define it where it

begins. Now, the foetus is not a stone, it is not a plant either--

Prof. Yash Pal Ghai: I think you have had your minutes I am sorry, you have to sit now.

Please, I have ruled, please.

Hon. Delegate Sammy Rutto: I support, I support--

Prof. Yash Pal Ghai: You have made your point, we understand that--

Hon. Delegate Sammy Rutto: I support that, we cannot be cheated here.

Prof. Yash Pal Ghai: Is it time to take a vote now? Before we take the vote, I should mention

that this matter was referred to the Consensus Group which after very lengthy debate said that


there should be no reference to the conception of life and there should no reference to (Uproar)

abortion which is already taken care of in the criminal law of the country. With that I now put

the question, those who support the Amendment that life of a person starts at conception and--

(Inaudible debate on the floor).

Prof. Yash Pal Ghai: What is your order, what is the Point of Order? They have been abused.

378.

Hon. Delegate Cecily Mbarire: Chair, do I have the floor? I want to speak as the Convenor of

the Bill of Rights. The Article that we passed in our Committee was even much better than what

we have here. This proposal, this Amendment, is too simplistic, we went into details of ensuring

that even the medical experts do not abuse the Clause. Now, what we are seeing here being

amended – the amendment that is being brought right now has watered down all that we did in

our Committee and I find it very unfair. My proposal is that we go back to the original Article

that was passed by the Committee of Bill of Rights because it was more detailed and took a lot of

considerations before we-- This is too simplistic in my view.


Prof. Yash Pal Ghai: Why do you not read out what you have and then we can take that as an

amendment?

(Inaudible discussions on the floor).

Prof. Yash Pal Ghai: Order, order. I am waiting for the Delegate to read her Amendment please

be patient.


Prof. Yash Pal Ghai: Okay, who has the text?


PLO Lumumba: 451 has the text.

Hon. Delegate Millie Odhiambo: Thank you Chair. My name is Millie Odhiambo , Delegate

number 451. Chair, the proposal by the Technical Committee on the Bill of Rights was that we

have-

(1) The right to life is protected.

(2) In relation to unborn child, Parliament shall enact legislation that recognizes the sanctity

of life and ensures-

(a) the safety of the pregnant woman; and

(b) the safety of the unborn child.

I think that is as far as the issue of the right to life goes and then the issue of capital punishment.

Thank you.

Prof. Yash Pal Ghai: Shall we take that as a formal amendment?


Prof. Yash Pal Ghai: Now, I will put the amendment that was moved to vote, that is the right to

life start at conception and abortion is not allowed unless on medical advice and the life of the

mother is in danger. Those who support this--

(Uproar and inaudible discussions on the floor).

Prof. Yash Pal Ghai: Okay, those who oppose.

P LO Lumumba: They are in the minority.

Prof. Yash Pal Ghai: Sorry!

PLO Lumumba: They are in the minority, so it is carried.


Prof. Yash Pal Ghai: It is carried.

PLO Lumumba: It is carried, we may now proceed to read. (Clapping).I now read Article

number 42 – Equality.


Prof. Yash Pal Ghai: 41 is what we have been dealing with just now and most of the ones I

have here, have already been dealt with.


PLO Lumumba: Is there a Motion on it?


PLO Lumumba: Then the mover moves.

Hon. Delegate Ruth Oniang’o: Thank you, Chair I am Ruth Oniang’o, Delegate number 221. I

realized in the previous Article we just decided that we have to preserve life, the innocent

voiceless life. Mine is to delete in its entirety 41(2) and to maintain the death penalty. My

reasons are these Mr. Chairman: We cannot begin to view a criminal, a killer, as a victim and

forget those who are murdered or reasons why the death sentence was passed in the first place.

What we need to do is make sure that our justice system works so that truly those who have the

death penalty put on them are truly those who are guilty. Now, we are aware that the justice

system in this country has not done a great service and despite of the reason why we are in fact

working on a new Constitution. And so, I am appealing that truly we need to make sure that

justice is done for people who have been murdered and those of you who have had anybody

gunned down for no good reason, children; four year old, two year old, six months old, defiled

and their lives taken away, that people have to pay. Mr. Chairman, it is even more critical now

especially given that our jails now following UN regulations are going to be so comfortable that


people will choose to commit crimes which will keep them in jails forever, having conjugal

rights, having swimming, having TV, earning salaries--

Prof. Yash Pal Ghai: Okay, I think--

Hon. Delegate Ruth Oniang’o: So, Mr. Chairman I beg to move here that we retain the death

penalty and I do this with great humility. (Clapping applauding).

Prof. Yash Pal Ghai: Those in support? 125.

Hon. Delegate David Musila: Thank you, Chair. My name is David Musila, Delegate number

125, Parliament. Mr. Chairman, I stand to support this Motion, (Clapping). Mr. Chairman, I

agree that everyone has a right to life but I also agree that only those who respect the rights of

others to live have that right.

Mr. Chairman today, in this country particularly, we are witnessing murders and murders

everyday. People who do not respect lives of others, people behaving like beasts even raping

infants and killing them. Mr. Chairman, what signal will we be sending to the criminals if we

spare their lives after killing people? I think we are trying to go - we have not yet reached that

stage whereby other countries are saying we abolish the death penalty. Even in the United States

which is advanced, many States still retain death penalty. Therefore, I strongly support the

Motion that the death penalty be retained in our Constitution. I thank you, Mr. Chairman.

Prof. Yash Pal Ghai: Those opposed to the Motion and wish to speak? 368.

Hon. Delegate Joel Sang: Thank you, Honourable Chair. I am 368, Joel Sang, a District

Delegate. I thank you Honourable Chair for giving me this opportunity because I have a

descending view of the Motion. Not so much because I value those who kill others but rather

because, if you look back at the history of this country, in the 60s, there were very stringent laws

that called for hanging of those who committed certain crimes. Those laws were meant to deter

the criminals but it did the opposite, many people were subjected to horrendous killings in this

country up to sometime in the early 80s. Even though it continues today, the magnitude in those


days were very high. If you look at why this was happening, the generation that was involved in

those crimes are the generations which were exposed to killings during the emergency in this

country. People may not realize the subtle message that somebody gets when you kill. A person

who kills is demented but if the society is going to stoop to that level and revenge just because it

wants to punish that person, then we are silently approving the idea of killing. I am therefore

calling upon us not be led by emotion because we feel if somebody kills, you have to kill. The

society--

Prof. Yash Pal Ghai: Thank you. You have made your point.

Hon. Delegate Joel Sang: -- please hear me. If you beat me in voting, I will accept defeat.

(Inaudible comments from the floor).

Hon. Delegate Joe Sang: The reality is, society has got to have values that are higher than the

values of criminals but if we are going to have values similar to those ones--

Prof. Yash Pal Ghai: I think you have made your point, please sit down. I am going to take

one more in opposition. 519.


Hon. Delegate Theresa Gachambi: Honourable Chair, 519.


Hon. Delegate Theresa Gachambi: 519, Sister Gachambi.

Prof. Yash Pal Ghai: Order please.

Hon. Delegate Theresa Gachambi: 519, Sister Gachambi. Honourable Chair, thank you for

giving me the opportunity because I had raised the Motion regarding life and I supported what


we had just passed - that we want to respect life. I find it contradictory after we have put a

principle that every person has a right to life, and now we come to undermine that principle.

Honourable Chair and Honourable Delegates, please listen to what I am trying to say, violence

does not help to solve any problem. I am not saying that if somebody kills, he or she should not

be punished. Perhaps we could look for life imprisonment but not to put capital punishment.

Prof. Yash Pal Ghai: Order please. Listen to the Delegate.

Hon. Delegate Theresa Gachambi: Thank you.

Prof. Yash Pal Ghai: I think I would like to put this to vote now, and those who support the

Motion that the death penalty should be retained, please raise your hands or you—


Prof. Yash Pal Ghai: Yes, it seems that-- Can I have those who oppose the death penalty? It

seems that the Motion is carried. (Clapping and applauding).

PLO Lumumba: That done, may I now read Article 42 ladies and gentlemen.



PLO Lumumba: If you led me your ears please. There is order! Article 42 - Equality.

Prof. Yash Pal Ghai: No, there is nothing.

PLO Lumumba: Article 43 – Freedom from discrimination.

Prof. Yash Pal Ghai: There is nothing there.


PLO Lumumba: Article 44 – Women.


An Hon. Delegate: Point of Order Mr. Chairman.

PLO Lumumba: There is order.

Prof. Yash Pal Ghai: I have a notice of Motion from Honourable John Kiniti, 352.


PLO Lumumba: Do you have a Motion?


PLO Lumumba: Then move it, it is not a Point of Order.

Prof. Yash Pal Ghai: But you will get your chance. The person I have here--


Hon. Delegate Isa Ngunia: 41

Prof. Yash Pal Ghai: 41, okay.


Prof. Yash Pal Ghai: Please proceed.

Hon. Delegate Isa Ngunia: Thank you, Mr. Chairman. My name is Isa Ireri Ngunia, 286. I

have a Motion on 41 (2).



Prof. Yash Pal Ghai: Please read your Motion.

Hon. Delegate Isa Ngunia: Yes, my Motion reads that we add, “except in the case of murder”

after the words “death penalty”. You see you put the issue on vote when I had not even had my

Motion--

Prof. Yash Pal Ghai: Please let us have order. Please listen to the speaker, it is a very

important matter we are discussing. Yes, please proceed.

Hon. Delegate Isa Ngunia: Thank you, Mr. Chairman. In my view, if we go by deleting that

Article it means that we will have death penalty for robbery with violence, treason and murder

but in my own view, I think we should only retain the death penalty for murder only because

treason, one may be rising against the government that he is unjust. So, in case of treason we

should have a life sentence. Also in the case of robbery with violence, it depends on how much

violence has been applied. So, it is not specific, you can put somebody for life for that matter but

in the case of murder, when one takes someone’s life with intent to do so, it is only in that case

that he should have a death sentence pronounced on him.

Prof. Yash Pal Ghai: Okay, thank you.

Hon. Delegate Isa Ngunia: So, death penalty should only be exempted in case of murder but

not the other two categories, which can be misused. That is my contention Mr. Chairman and I

beg to move that we retain the death penalty for murder only and not other crimes. The other

crimes can be served with life sentence.

Prof. Yash Pal Ghai: We follow your argument. So, this Motion is an Amendment of the

Motion we have accepted. I will allow one in favour, one against and take a vote. Those who

support the proposal that the death penalty is abolished except in the case of murder. Those who

support that I will give them one minute to pass on.




Hon. Delegate Viscount Kimathi: Thank you, Chair. Mr. Chairman I think we should leave

that to Legislature. Honourable Viscount Kimathi, Delegate number 061. We should leave other

details to legislation and I want to thank all Delegates because it is very good Mr. Chairman that

we have decided to retain death penalty because we are not going to tolerate a murderer, a

carjacker, fix a gun on a Kenyan who is innocent then we send him to jail. I thank the Delegates,

let them die and let us leave the rest to legislation. Thank you. (Clapping and applauding).


Prof. Yash Pal Ghai: 561 for information.

PLO Lumumba: Nancy, Point of Information?


Com. Nancy Baraza: Thank you, Mr. Chairman. My name is Nancy Baraza, Delegate number

561, Rapporteur for Bill of Rights. Mr. Chairman, I just I just want to inform Plenary that the

overwhelming views of Kenyans around the country were that they did not want the death

penalty, that we carry message, and I do not think we should be so intolerant as such to sweep

issues in just one minute like that. Those are the views of Kenyans around the country, they did

not want to retain the death penalty and the reasons they gave Mr. Chairman--

(Booing).

(Inaudible comments on the floor).



Com. Nancy Baraza: The reasons they gave were that the death penalty has not been a

deterrent to the crime--

Prof. Yash Pal Ghai: Delegates, we are discussing an extremely important matter and you do

not have the courtesy to listen to the person, you state your fact and more or less but you do not

have the courtesy to listen to this information that is being conveyed to you which represents the

views of people as expressed to the Commission. Please listen.

Com. Nancy Baraza: Thank you, Mr. Chairman. And with humility Mr. Chairman, I think if

we learn to listen to people, to tolerate other people’s views, then we will be taking the right

direction; but I am sorry to say that the moment we boo people down, the moment we are so

intolerant, I do not think we are giving Kenyans the right Constitution. And I was telling you

this--

(Booing).

Com. Nancy Baraza: I was telling you that the reason Kenyans around the country did not want

the death penalty--

(Booing).

Com. Nancy Baraza: I think if we want to do away with the views of Kenyans, we may do so

but I want to go down on record as a person who went around the country listening to Kenyans.

You are throwing away the views of Kenyans in a minute without giving it a thought.


Prof. Yash Pal Ghai: The last speaker is 025 and then I want to put this to vote. 025.

Hon. Delegate Nderitu Gachagua: Thank you, Mr. Chairman. My name is Nderitu Gachagua,

Delegate number 025. Mr. Chairman, I think we are treating this matter very lightly as the last

speaker has said. If we are to look at the jurisprudence of the death penalty because-- one of the


speakers here said that, the reason why you want to retain the death penalty is because you want

to punish someone and there are views that are held, that if somebody is suffering for just one

second before you kill him, that is not enough punishment. That alone is not a reason, we must

look at-- If you want to make somebody suffer, do you make him suffer more by keeping him

for twenty years locked up or do you make him suffer by just killing him in one second?

The second point Mr. Chairman is that, we all know that even when this country had the death

penalty, if you look at the statistics in this country, how many people have been hanged? Very,

very few because this is a sentence that has been there only in writing because of the humane

nature of taking somebody’s life.

The third point Mr. Chairman is that, who are we? Like Nancy Baraza said, I have also gone

round when these views were being taken and the right to life is a right that has been given to

people by God and the reason why we want to respect the wishes of God is that, who are we as

models and ordinary human beings to take other people’s lives?

Prof. Yash Pal Ghai: Can you please wind up now?

Hon. Delegate Nderitu Gachagua: So, I am saying that Article 41 (1), the right to life, cannot

run together with the death penalty because, unless you qualify Article 41(1), the other Article

cannot run without running into problems of interpretations. Thank you, Mr. Chairman.

(Clapping and applauding).

Prof. Yash Pal Ghai: Delegate 570 has the floor to give some information.

Com. Githu Muigai: Mr. Chairman, my name is Githu Muigai, I am Delegate number 570.

Mr. Chairman, in a minute - I have practiced law for 18 years in this country and I can say

without any fear of contradiction that the death penalty is a penalty against the poor. (Clapping).

It is a penalty against those who have no resources to move the legal and the political system. If

we retain it in our books, we are condemning the poor and we should go home in no doubts

whatsoever. (Murmurs). Mr. Chairman--


Prof. Yash Pal Ghai: Order! Please listen.

Com. Githu Muigai: Mr. Chairman, I spent many years working for Kituo Cha Sheria as a

volunteer, I went to Kamiti in the condemned block many times and 99.99% of the people

waiting to be hanged are the poor, the jobless, the dispossessed of this country.


Com. Githu Muigai: My final point is this Mr. Chairman--


Com. Githu Muigai: My final point is this, a lot of the Delegates have expressed very strong

views, well intentioned but in my very humble view, not sufficiently informed. If you go to our

courts today, up and down this country and look at the offences for which people are condemned

to die, the majority of the convicts are convicted for robbery with violence. Now, you may think

that robbery with violence under our law means you have robbed somebody violently, not true.

It means, that you have sometimes been in the company of a person, unknown to you, who is

armed, or a person with whom you agreed to do something but having arrived there decided to

take a violent action. This is cruel, inhuman, degrading and primitive treatment. Thank you, Mr.

Chairman. (Clapping).

Prof. Yash Pal Ghai: Okay, I want to put the Amendment to vote please. The Amendment is,

“that capital punishment should be abolished except in the case of murder”. Those who support

this please raise your hands. (Applauding). Those opposed. (More applauding). The Motion is

lost I guess.


Prof. Yash Pal Ghai: Could I have the show of hands again because we want to have a very

clear picture? Those who support the Motion please raise your hands. (Applauding).



Prof. Yash Pal Ghai: Okay, 37.

Hon. Delegate Otieno Kajw’ang: Mr. Chairman, I rarely make such strong Points of Orders

because I respect you Chair very much. However, you can see that we have retained the death

penalty by a majority here. The exceptions which were now voting on are matters which are in

statute already, the statute of the Penal Code and all those others. So, we are retaining it, the

legislature will use their wisdom and authority to see what to exclude and what to include. So,

we are retaining the death penalty, the exceptions will be dealt with by the law. Thank you very

much. (Clapping).

Prof. Yash Pal Ghai: Well, it seems to me appropriate to give to this body which is making the

Constitution of this country the right to make a decision whether they want to exempt certain

categories from capital punishment. This is my duty to give this Assembly the opportunity to

decide that question. There is a Motion before us; “the capital punishment should be abolished

except for murderers”. And I think we have a right to know what the Delegates think on this

extremely important matter and you are taking it so lightly. So, I want once again to request

those who support this Motion, please raise your hands. (Applauding).

PLO Lumumba: Please, if you permit me, the Motion on the floor is this, “that the death

penalty be abolished…”. The Draftspersons will deal with the language, “...except in the case of

murder”. How many support that formulation? (Applauding).

Prof. Yash Pal Ghai: Those against.

PLO Lumumba: How many oppose that formulation? (Applauding).


Prof. Yash Pal Ghai: I think we will need to carry out a poll on this. So, those who support the

Motion please put up your hands again and the tellers please start counting the votes.


(Inaudible discussions as votes are being counted).

PLO Lumumba: It appears that there is lack of clarity.


PLO Lumumba: And that really we need to clear the issue before we take the vote.


PLO Lumumba: Let me try on behalf of the Chair to seek the clarification. The initial vote

was that, we delete Article 41 (2), that is, “There shall be no death penalty”. What is now being

proposed is that we do not delete it but we say, “there shall be no death penalty except in the case

of murder”, which effectively says that we retain Article 41(2) as it is, subject to that

Amendment.


PLO Lumumba: Is that what is on the table?


PLO Lumumba: Ladies and gentlemen because that fundamentally affects the Motion of

Amendment as moved by Ruth Oniang’o. It may be wise to invite her to say something.


Hon. Delegate Ruth Oniang’o: Thank you, Chair. It seems to me that in fact if we vote on the

current Motion that is on the floor now, it is in effect going to delete my Motion and my own

Motion in fact includes other aspects that will require death sentence, not murder. For example,

defilement of four year olds, and six years olds. So, I am sorry, we will have to redraft this and


put it to the floor in a more comprehensive manner where it takes care of my Motion and the

Motion of the Mover of the other Motion. Thank you.

Prof. Yash Pal Ghai: Thank you very much indeed.


Prof. Yash Pal Ghai: Okay, so I put the question again. With this clarification, those who

support the Amendment which is moved now please raise up your hands. (Applauding).


Prof. Yash Pal Ghai: I have a proposal to make.

PLO Lumumba: Proposal from the Chair please.

Prof. Yash Pal Ghai: That we postpone this issue, we allow--

Hon. Delegates: No! No!

Prof. Yash Pal Ghai: Listen to me before you start shouting! I suggest that Professor Ruth

Oniang’o and Honourable Delegate Ngunia to see if they can come up with a consolidated

Amendment and we can vote on it once they have done that. Thank you very much indeed.


Prof. Yash Pal Ghai: At this stage, I would like to give the floor-- We will just stop this, the

Minister of Justice has requested for an opportunity to make a statement and I have agreed to do

so. So, I invite the Minister of Justice to make his statement. (Clapping).


Hon. Minister Kiraitu Murungi: Thank you, Mr. Chairman. First, I would like to thank the

Honourable Delegate who prayed for me this morning. (Clapping). I thought that was a very

good gesture to me and I really wish to thank her.

I have asked to be given an opportunity to make a short statement because the Constitution

Review Process which we are undertaking here, is the most important issue in our country today

and we feel that Bomas has reached its final and most critical phase and we should all take it

very seriously and with humility. Mr. Chairman, the Process when completed, is going to

fundamentally alter Kenya’s political landscape as we know it today and we would want to make

a Constitution which is going to unite all Kenyans and provide a sound basis for peace and

stability and prosperity for all our people.

Mr. Chairman, we have a feeling that some of the provisions in the Zero Draft especially those

relating to the Executive, Devolution and Transition, if adopted the way they are, and I do see it

is possible, that in the mood that the Delegates are in, this could be adopted, this Mr. Chairman

would throw this country into political confusion for quite sometime and that they may constitute

potential threats to peace and security in this country.

That is why Mr. Chairman, I was very happy when you invited us for dinner last night--

(Murmurs), to go and discuss some of these issues. I think it is very important for us to listen

and learn to listen to each other because we are all going to live in this country whether we like

each other or not. I think, Mr. Chairman, it was very important that every attempt be made to

develop a consensus on this document, if this document will ultimately become the Constitution

of this country and I think it is in that spirits Mr. Chairman that you invited us for dinner last

night. The dinner is not a secret and in fact I am surprised that, even as one hour ago, the radio

had a news item announcing that the Chairman is working with a powerful Cabinet Minister to

derail the process.

Mr. Chairman, these news are disturbing because the dinner was not secret and those who

attended the dinner were Professor Yash Ghai, Bishop Sulumeti, Professor Okoth Ogendo,

Honourable Raila Odinga, P L O Lumumba, J. J. Kamotho, Honourable Otieno Kajw’ang,

Honourable Uhuru Kenyatta, myself, Honourable Kimunya among others and what we discussed


there was how we could form a small Consensus Committee of this Plenary Session to go and

look at the contentious issues which still remain outstanding in the areas of Executive,

Devolution, Transition and Representation of the People; so that indeed the final document that

is accepted here is not subjected to any further debate.

Therefore, Mr. Chairman I was surprised this morning when the idea was brought at the Steering

Committee and the Delegates were of the view that there is no time for consensus, we do not

need it. The reason why I suspended my tenure away from this Conference was because I saw a

new hope for us to develop a consensus and come up with a new Constitution for this country.

That is the reason why I came today. But from what I see, I might have been misled because the

mood for the consensus is not there and we as government are interested in a document which

will provide peace and security for our people forever. (Clapping).

So Mr. Chairman, I am appealing to the Delegates once again to agree to the formation of this

Consensus Committee even as we go on because if we do not do so, we and all the Ministers

who have been asked to attend this process will have no choice but withdraw. Mr. Chairman,

this is a simple message I wanted to pass to the Delegates, please let us reconsider, we are doing

very very important business. Thank you. (Clapping).

Prof. Yash Pal Ghai: Thank you very much Minister. I have always endorsed the sentiments

that you have expressed that we have to try to solve our problems through consensus. We have a

legal obligation under the Act and we have to exhaust all possibilities before we proceed to vote.

So, I am happy to hear you emphasize the need for a consensus that is important for our national

unity. We could have a bit of discussion on this, I have talked to the Delegates a few times all

the day in the last few weeks about the importance of consensus given the many examples

including most recently from Afghanistan or when the whole thing seems to be on the verge of

collapse, the concerted effort at conciliation, mediation and having differences ironed out and

that country now has Constitution and so I believe that even to the last minute, we should

continue to make efforts at Consensus Building. I can give you other examples where it is only

at the eleventh hour that a Consensus was achieved and a country got a Constitution that

everybody was happy with. I think it would be criminal of us not to continue to make that effort

at consensus. So I endorse your view and seek the support of the Plenary to continue efforts on


consensus possibly through a Committee, we already have a committee which was set up, we

could use that or we could appoint another Committee in order to pursue the task of Consensus

Building. Thank you.

An Hon. Delegate: Point of Order?

PLO Lumumba: 396.


Hon. Delegate Happy Wabwire: Thank you Chair. I am Delegate number 396, Happy Gloria

Wabwire from Busia. Chair, on my own behalf and other Delegates, I must first of all thank

Honourable Kiraitu for the efforts he has made today and I believe God has answered our prayers

this morning because this is something we have been longing for, for a very long time. I want to

suggest this Chair, that there is room for us to agree but what we are trying to say is that, we

have been having a Consensus Building Committee in place, I think it worked for about two

weeks or so but I would suggest that if we have to have a Consensus Building Committee, it has

to come from the Plenary here. (Clapping).

Then, before we do that Chair, we know there are so many suggestions. I am talking as a

member from Devolution Committee, I know how it was painstaking to come up with what we

have come up with. I would request on behalf of the Devolution Committee that all the

suggestions that there could be as far as Devolution is concerned, can those suggestions come

back to the Devolution for a day. We also look at them and also give our comments before we

give our own proposals, we see how they suit because we understand what we have done so far,

then we can hand over whatever proposals we would have integrated in the current position what

we have, then it can go over to the Consensus Building Committee. Thank you.


Hon. Delegate Billow Kerrow: Thank you Mr. Chairman. My name is Billow Kerrow,

Delegate number 015. Mr. Chairman, obviously I would also thank the Minister for what is


seemed or what is perceived to be a change of heart in this matter. Mr. Chairman, it is more than

a month that there was a Consensus Building Committee in which we requested those people

who we believed are at loggerheads with regard to Executive and Devolution. Those who were

in the Cabinet to please come forward and sit with the rest of the Delegates in building

consensus. Mr. Chairman, even belatedly we would accept the change of heart from the

Minister. But there is only one condition that we will request; the same Minister yesterday made

a press statement that indeed on 19th, we pack up and go and we leave the documents as they are

to the Commission and from Commission to Parliament and from Parliament to the AG.

(Clapping).

Mr. Chairman, we will accept any attempt to delay this process, which indeed it is, if the

Minister can also in reciprocation or can reciprocate by saying that “I will or my government will

extend this process as long as it takes so that we can conclude this process here in Bomas and not

in Parliament. (Clapping).

Otherwise I do not-- (Clapping). Otherwise Mr. Chairman, I think this is an exercise in futility

and this is an exercise to delay us up to 19 th so that we do not have anything and then we are told

to pack up and go and hand over this thing to the AG. (Clapping).

But please in good faith, I would request the Minister to please issue a statement and give a

commitment of his government that we are going ahead to finalize and we will agree to accept a

Consensus Building of whichever type he wants but will continue and finish the exercise here.

Thank you very much. (Clapping).

Prof. Yash Pal Ghai: 545. Order, please Order.

Hon. Delegate Simeon Shitemi: Thank you Mr. Chairman. My name is Simeon Shitemi,

Delegate number 545. I rise to thank the Minister Honourable Kiraitu Murungi for a very

measured and balanced speech. He is speaking from authority, he is speaking from a base of

power and yet he has given a certain subtle concession that we sit aside, agree to meet again to

build consensus and on the basis of that see the way forward. That to me is very significant.

Fellow Delegates, I was very upset, Honourable Kerrow has spoken my mind but I don’t think


this is the occasion for us to push Honourable Kiraitu Murungi to the wall. He is a man I have

come to love and respect and he stood in our midst with a certain amount of humility and that

humility is that “look ladies and gentlemen, let us pick another team to build consensus and map

out the way forward”. I say fellow Delegates, let us meet him half way.


Hon. Delegate Kamla Sikand: Mr. Chairman, can we have quiet please?

Prof. Yash Pal Ghai: Order, please Order!

(Noise on the floor).


Hon. Delegate Kamla Sikand: Mr. Chairman, first of all, we congratulate you as our

Chairman. I think to me or maybe to most of the Delegates it is our pleasure to see a Chairman

who is trying to the very last minute to bring compromise and negotiations between us and I also

congratulate the Minister for coming here, he is a Minister and I think he was humble today. He

came to us in all humility, why are we not prepared to sit and talk. Why can’t we compromise?

I do not see any assembly where negotiations and compromises do not take place. Are we

exception to that? Can we-- Is there a home where you do not sit and negotiate and compromise,

where the issues are not sorted out? Another thing Mr. Chairman, I feel honestly if we from this

assembly deliver a document which is acceptable to everybody, to Mr. Kiraitu and everybody-

not only to Mr. Kiraitu, to everybody, then our document will have to be accepted as it is. In

other words, Mr. Billow says this is the condition we will ask for. We will say that if we

compromise with you, if we negotiate with you on the condition that this document will be the

document for the country and no other document will come from anywhere else. Thank you.



Hon. Delegate Gitu Wa Kahengeri: Bwana Chairman, mimi nimesimama hapa nizungumze na

Delegates wenzangu, na pia nikitoa shukrani kwa Minister Kiraitu ambaye anahusika na mambo

ya sheria ya nchi hii. Nitatoa shukrani kubwa kwa yeye kukaa katika meza hapa na kuzungumza

nasi na kuonyesha sisi ya kwamba sisi tulioko hapa, si siafu kama tulivyotajwa na watu wengine.

Hili ni neno la muhimu ambalo sisi wote ni lazima kuliona. Sisi tulitumwa hapa na wananchi wa

Kenya, na kwa hivyo, sisi tutatoka hapa na Katiba. (Clapping).

Bwana Murungi vile vile, alichaguliwa na watu na tukachagua serikali yetu kuongoza nchi hii.

Kwa hivyo, sisi wote ni watu wa nchi hii ambao wamepewa mamlaka na watu wa nchi hii

kuwafanyia kazi. Ikiwa kuna mambo ambayo mmoja wetu anafikiria hayaendi namna ambayo

inatakikana na watu wa nchi yetu, basi atakuja hapa kwa sababu hapa ndipo pahali ambapo

tulipewa kutengenezea Katiba. Na ile Kamati ambayo amesema ya kuweza kusikizana, mimi

siwezi kufikiria kama Delegates wenzangu wanaweza kukataa hiyo. Kwa sababu kutimiza

mambo ya nchi yako, ni kuzungumza na wote ambao wanahusika. Lakini kitu kikubwa, ni lazima

wewe mwenyewe ujione kwamba wewe ni kati ya hawa wengine. (Clapping).

Wale ambao tumechagua katika Bunge, wengine tuliwachagua kwa sababu walisoma vizuri.

Lakini hatukuwachagua hawa kuwaangalia hawa kama mlima. (Clapping).

Tunataka nyinyi mfahamu tunawaheshimu nyinyi kwa sababu kura zetu ndizo zilikwenda katika

sanduku na ukawa Waziri wa Serikali. (Clapping).

(Consultation at “high” table).

Hon. Delegate Gitu wa Kahengeri: Kwa hivyo, mimi ninataka kusema hivi kwa sababu sitaki

kuzungumza mengi. Ile Committee, Chairman vile vile amesema ya kwamba tunaweza kutafuta

njia, sisi tuna Katiba tumeandika already. (Clapping).

Wale wenzetu sasa ambao wanataka kusema sehemu hii, sehemu hii, basi hakuna mtu wa

kukataza hawa kufika hapa, tuchukue Zero Draft (Clapping). Tuchukue ile ingine ambayo ni

Revised, tuangalie sehemu ambayo wanafikiria si mzuri kwa wananchi. Lakini mimi ninafikiri

wakija, wasituletee sisi yale mambo ya kibinafsi. (Clapping).


Tunataka mambo ambayo ni ya wananchi wa nchi hii. Mimi ninataka kusema kitu kimoja kidogo

kwa sababu mimi ninakubaliana kabisa na alivyosema Bwana Kiraitu ya kwamba tunaweza

kuketi na kuangalia na kuona ni mahali gani. Lakini tukienda kuzungumza, tunataka sisi kuwa

vile vile ni wahusika kamili katika Consensus Building. (Clapping).

Kwa hivyo mimi nawauliza ndugu zanguni, wana wangu, wale tulioko nao hapa katika mkutano

wa Bomas of Kenya, ikiwa ni kuzungumza na wenzetu ambao tulichagua, hiyo tusikatae.

Waswahili walisema ya kwamba “Usikatae kuitwa, kataa uambiwalo”. (Clapping)

Kwa hivyo wakifika na tunaangalia Draft zetu, kile tunaweza kukataa ni kile ambacho

tunaambiwa na tunafikiria ya kwamba si faida kwa wananchi waliotutuma hapa. Kwa hivyo

mimi ninakaribisha wazo hilo na tulione kwamba ni la kuleta umoja katika watu wa Kenya yetu.

Shukrani. (Clapping).

Prof. Yash Pal Ghai: Asante Mzee. 037.

Hon. Delegate Otieno Kajwang’: Thank you, Mr. Chairman. Mr. Chairman, my name is

Otieno Kajwang’, 037, Parliament. Mr. Chairman, we have been in the Consensus Building

Committee, I was privileged to be a member and we brought a report and that report has been

utilized, some was included in the Zero Draft, some was rejected by the Committee both on the

Executive and Devolution. But Mr. Chairman, what I want to talk about is very little.

One is that the only person who is involved in the Constitutional making process is the citizen of

the Republic of Kenya. That is the only stakeholder and that stakeholder has elected people here

from many categories. It has elected people from the Districts, it has elected people from

Parliament, it has elected people from the civil society and they are congregated here for now

several months discussing the views of Kenya with the view to pass a new Constitution so that –

Although I want to thank Honourable Kiraitu for coming to talk to us, but he is coming to talk to

us from what one of the Speakers has said, from a position of authority and government. That is

what I don’t like about it because there is no authority of government in this place. This place is

about Delegates and Honourable Kiraitu is a Delegate. (Clapping).


And the members of the Cabinet who decided something yesterday and was published by

Honourable Kiraitu are also Delegates. So that whatever they would want to do now, they would

have always had a chance to do throughout this time as Delegates. (Clapping). So that Mr.

Chairman when we start to think that there are two camps here; that there is the camp of the

Delegates and the camp of the government, we are making a terrible mistake. So that Mr.

Chairman, I take a lot of exception to the words, especially the last words of Honourable Kiraitu,

that unless you agree to negotiate with us the government, we shall walk away.

(Applause on the floor).

Hon. Delegate Otieno Kajwang’: Of course a Delegate has a right to walk in and walk out.

(Clapping). And if Honourable Kiraitu thinks that this place is not very good for him, there is

nobody who will force him to stay here. Then, there is the last one. That there is a publication

of certain Bills and that publication of those certain Bills is coming from Government and is

telling Bomas that “do what you may in Bomas but when it comes to Parliament, we will alter it

or reject it.” And they are telling us that, unless you do this thing by 19 th, Bomas will be no

more. Then, at the same time he says that we can talk. So, on this time he is threatening us with

dates and on this one he is-- (laughter). Mr. Chairman, how can we negotiate with threats?

(Clapping). So Mr. Chairman, if you want to negotiate and if Honourable Kiraitu is sincere that

he wants to negotiate, he should do two things; first withdraw the blackmail, and two to

withdraw the published or supposedly published Bills and apologize to Kenyans and come here

and participate as a Delegate. (Clapping).


PLO Lumumba: 424, you are on the floor. Don’t be too angry, 424.

Hon. Delegate Thomas Aburi: Mr. Chairman, thank you for recognizing me, I have been

putting up my placard for the last two days here without you recognizing intentionally. Mr.

Chairman, I wish to say one or two things here. We as Delegates, we have been very much in

need of those whom we perceive to be in the government to come and attend this process.

Through our prayers, the Ministers and the Members of Parliament who had stayed away started


to troop in yesterday. I think it is imperative that we give them an ear and see what they have in

store for us. The Minister has come here, he has stated his mind. Whether it is a government

stand or his mind, let us give him a hearing and I would like to extend a kind hand to him. It is

not also for us alone that we make this situation hostile or see this either way, if the Members of

Parliament have been hostile to us, then they could be met with that hostility. But for example in

the morning, there was a problem here and Kibwana walked away, went to address a Press

conference outside. I would like the Members of Parliament to show us leadership and

politicians are meant to actually tolerate, be patient with booing and jeering. I would like the

Minister to take it very kindly, he is the Minister in charge of Constitutional Affairs, let him lead

us here, show us where we go wrong, also be involved in the Consensus Building, and be one of

the technocrats to advise the experts here so that at the end of the day, he will come out and we

sing hallelujah to him when we shall be having a Constitution that we shall show Kenyans.

Three and it is the last one. It is not always good to perceive those who are in the government as

the only ones who are opposing us. We should also check ourselves. There are some people

who are here and they have been trying to scuttle this process when we think they are building

the process. So I would like to tell you Delegates that let us be very kind, tolerant, patient and

we shall at least come out with a Constitution.

About the Consensus, there is a Consensus already in place, which was being chaired by the

Chief Moderator, Philip Sulumeti. Give me a hearing please.


Hon. Delegate Thomas Aburi: And we have been giving them ample time, they were properly

facilitated and up to now, if we feel there are certain contentious issues which we need to give

them, we can actually call upon, we either reduce the number or increase the number by giving

them experts such that at the end of the day we have consensus so that we do not have to blame

either the AG or the Minister concerned that they are the ones who mutilated the document we

actually transited to Parliament. With those few remarks, Honourable Minister, thank you very

much for coming and impress upon your friends to be tolerant, to be patient so that when they


come here, at the end of the day we shall be together as one body. Thank you very much Mr.

Chairman.

Prof. Yash Pal Ghai: At this stage, I would like to ask Delegate 124 if he would wish to

respond to views expressed here. I say generally a welcome for you as Delegates have reminded,

people have been praying for you to come and work with us and we are very happy that you are

here with us today. But, Delegates also feel that we need some clarification before we can

proceed to consensus building and I would like to give you an opportunity to respond to that

before I put the question to the House.

PLO Lumumba: Please there is order.

Hon. Delegate Kiraitu Murungi: Thank you Mr. Chairman. First I would like to thank all the

Delegates, who have expressed themselves on this idea, those who are in favour of it and those

who are against it, because we are in a democracy. I was very surprised that Honourable

Kajwang’ spoke the way he did because we were with him last night (Laughter), and he

supported this idea, and he promised to support it today. (Laughter and Clapping).

Mr. Chairman I would like to make one clarification. I would like to inform the Delegates and to

confirm that the Government has no intentions what so ever of disrupting this process

(Clapping), and I would like the Delegates to appreciate what the Government has done so far.

The Government has provided resources for this Conference to go on. The Government has

provided for your food, for your accommodation, for your travel (Heckling from the floor), and

if the Government was really interested in disrupting the process, it could have interrupted those

facilities. So, the very fact that this is going on with out interruption tells a lot about the

commitment of the Government to the process. (Clapping)

With regards to the date of 19th March I do not know what newspapers you are reading because

Kiraitu Murungi has not talked about 19th of March. The date of 19th of March. was given by this

Conference itself. It is I think the Steering Committee, which drew the program for the

Conference until 19th of March. In fact the President has been wanting to introduce a new culture

to this country in which Parliament is summoned in February, so that it can work for more


Months because as we know, he has said Kenya is a working nation. But, the opening of

Parliament was postponed from February when it should have been done because this process

was going on. The Parliament will be convened on the 23rd of March that is all I can say. We did

not say anything at all about the Bomas process, we can only talk about Parliament.

Now, Mr. Chairman, I think since there has been mixed opinions regarding the proposal you put

forward regarding the setting up of a small consensus building Committee. It is only fair that we

use the democratic process. That the Delegates who are “for” be counted, the Delegates who are

“against” be counted and we go by the results. Thank you very much. (Clapping).

Prof. Yash Pal Ghai: I would like to get sense of the Delegates on the proposal that we

establish some consensus building mechanism. As I told you I believe myself that it is important

to do so. (Bell ringing). So could I get those who support the idea of such a body, we can work

on the modalities later and it will be a Committee of the Plenary would you please say, “AYE”.

Hon. Delegates: “AYE”.

Prof. Yash Pal Ghai: As many as are of the contrary opinion say, “NAY”.

An Hon. Delegate: “NAY”.

Prof. Yash Pal Ghai: So we have a unanimous support for the idea of a Consensus Building

Group, and we will perhaps if you allow the Steering Committee tomorrow can bring to the

Plenary criteria and modalities for setting up such a mechanism. (Inaudible comments from the

floor). Thank you. Please I think we should leave it at this point please.

PLO Lumumba: Mr. Sang we beg you, we beg you to soften to us.

Prof. Yash Pal Ghai: If you have any views, you can give them to Members of the Steering

Committee and they will bring it in the morning (Inaudible comments from the floor). I would

now like to proceed with our important task of adopting Articles, so we are able to conclude our

work this week.


Hon. Delegate Joel Sang: Point of Order.

Prof. Yash Pal Ghai: We are taking one Point of Order. 368.

Hon. Delegate Joel Sang: Honourable Chair, thank you. I am 368, Joel Sang. Honourable

Chair, I must state my displeasure that of late, you tend to have a given attitude towards certain

Delegates. In choosing the Consensus Building Group, and I speak on behalf of District

Delegates who represent the most impoverished people in this country, the country people.

(Clapping). In choosing the Consensus Group, those who are known to hold views similar to

those who requested for it, if you chose them we will reject it outright. Give us a chance to give

you our own people. Thank you.

Prof. Yash Pal Ghai: Yes, okay. You will have the proposals tomorrow, you will be able to

comment on it and vote on it. So, I am glad to say that--.

PLO Lumumba: Mr. Rasugu please, lets us proceed. We have 19th, we beg you, we beg you

Rasugu, I beg you, 579, I am begging you please.

Prof. Yash Pal Ghai: I am glad to say that Professor Ruth Oniang’o, and Honourable Gunia,

Ibrahim Salim, David Olulu have met as we requested them and they have come up with a

formulation to replace the existing Article 41 (2). I would like to read that to you and then to put

it to vote. “Except in the case of murder, child molestation and any other matter as per

legislation, the death penalty is abolished”. This is a consensus, a composite recommendation

and I want to put it to vote. As many as are of the opinion of this Motion, which will abolish

death penalty except in case of murder, child molestation and any other matter that Parliament

may decide, those who support this, may you please raise your hands or your number boards.

I think we need to count this because it is a matter to go into the Constitution. so, please keep

your hands up until your votes have been counted.

Please sit down, I see lots of Delegates are leaving this room soon we shall have no quorum. You

keep on talking of your determination to give the Kenyans a Constitution yet you leave the room


and leave us with out a quorum. Could I ask all the Delegates who are leaving to come back.

Those who have gone out to return, so we can continue our work. We had said we would work

till at least six to day and it is only four and we are about to lose a quorum.

If you are opposed to the proposal, please raise your hands. (Inaudible comments on the floor).

While the counting is going on, I think if Delegates want to go out and have a cup of tea, please

do that but please come back, no later than 4.20pm, please.

Meeting adjourned for tea. 4.10 pm.

Meeting reconvened after tea at 4:55 pm.

Prof. Yash Pal Ghai: Please take your seats. Honourable Delegates, please take your seats.


Prof. Yash Pal Ghai: We will now read from the Bill of Rights.

PLO Lumumba: We will now proceed to read:

Article 41 - Fundamental rights and freedoms.

Article 42 - Equality.

Article 43 - Freedom from discrimination.

Article 44 –Women.


Prof. Yash Pal Ghai: Is John Kiniti here?

Hon. Delegate John Kiniti: Yes.

Prof. Yash Pal Ghai: You have proposed an amendment to Article 44?


Hon. Delegate John Kiniti: Yes.

Prof. Yash Pal Ghai: Do you want to move it now?

Hon. Delegate John Kiniti: Thank you, Mr. Chairman. I am John Kiniti, Delegate number 352.

As a matter of fact, Mr. Chairman, this one is not a substantive Motion. Mr. Chairman, as I was

reading through this Article, I noted that the title of the Article is “Women” and under it, in

respect to 44 Sub-Article (1), it talks of women and men. When you also look at Sub-Article (2),

it also talks about women and men--

Prof. Yash Pal Ghai: I think you do not need to go through all that--

Hon. Delegate John Kiniti: I therefore thought--

Prof. Yash Pal Ghai: The point is understood and I think the best way to deal with that is to

draw it to the attention of the Drafters and they will make the necessary amendment.

Hon. Delegate John Kiniti: Thank you, Mr. Chairman. If that is to be referred to the Drafters,

thank you very much.

Prof. Yash Pal Ghai: Thank you very much indeed. (Clapping).

PLO Lumumba: Thank you very much. If I may now read:

Article 45 – Older members of society.

Article 46 – The Youth.

Article 47 – Children.

Article 48 – The family.

Article 49 – Persons with disability.

Article 50 – Minorities and other marginalized groups.

Article 51 – Human Dignity.

Article 52 – Freedom and security of the person.

Article 53 – Slavery, servitude and forced labour.


Article 54 – Privacy.

Article 55 – Freedom of religion, belief and opinion.

Article 56 – Freedom of Expression.

311?

Prof. Yash Pal Ghai: I have a notice of amendment from Rose Lukalo Owino. Is Rose here?

PLO Lumumba: She is here. Rose Lukalo.

Prof. Yash Pal Ghai: Yes, go ahead.

Hon. Delegate Rose Owino Lukalo: Thank you Mr. Chairman. I wish to move this Motion to

amend Article 57 on “Publication of opinion”, 57 (6) (c) and (d) and to make the changes that are

noted under the Motions here. I wish that Sub-Section (c) be struck out in its entirety and that

necessary amendments be made to Sub-Section (d), such that regulation of the Media should be

not be a function of Parliament. If the Media is to perform freely, I think it is important that we

recall that they have to be fearless commentators; they have to able to reflect everything that

transpires in the society.

I think it is important that we recall that hundreds of journalists have been arrested, detained,

permanently injured and otherwise victimized at the hands of government. Even as I stand here,

there is legislation passed by Parliament, which makes it very difficult for Media to do its work.

Even in today’s environment, there are very high punitive measures that have been put in place

and are yet to be repealed.

It is important to recognize that the Media cannot fulfill their role where controls are placed or

are imposed on them and where freedom of Media is restricted. I think this Article gives power

to Parliament to set the standards under which Media will operate and that, I argue, is a form of

control, because Parliament will approve those standards that suit itself.


So, with that, I beg to move and I hope that other Delegates will support me in this. The

intention is not that Media will be completely free but it should be regulated by an independent

body. Thank you.

Prof. Yash Pal Ghai: So, the proposal here is that instead of Parliament establishing the Media

standards, it will be an independent body and that requires deletion of (c) and the addition of a

few words in (d). Those who-- I am going to take a vote straight away.



Hon. Delegate Paul Muite: Mr. Chairman, I support the sentiments expressed by Rose Lukalo

and I do not think Parliament necessarily wants to control the Media at all but I would like to

suggest that the Media, as a profession, should borrow a leaf perhaps from the other professions;

for example from the quantity surveyors, architects and lawyers who have a legislative

framework within which they are able to internally regulate themselves.

So, I think that the amendment which will be appropriate, would be to require Parliament to

come up with a legislation which will provide the statutory framework that will permit the Media

themselves to make it compulsory, for example, for media owners and editors and what have

you, to be members of that particular association, so that they can have the power to enact

regulations under that Act of Parliament to self-regulate themselves. Thank you.

Hon. Delegate Millie Odhiambo: Point of information. Point of Order.

Prof. Yash Pal Ghai: Yes, 451.

Hon. Delegate Millie Odhiambo: 451, Millie Odhiambo, representing Civil Society

Organizations. Chair, the Technical Committee that dealt with this issue, took into account the

concerns that are being raised and it is actually already covered in the legislation that we were

talking about. So, if we look at what is already provided for, we are only talking about setting up


a body using legislation. If we do not provide that, then the Media can operate like a rock. It is

already in legislation, so if what Honourable Muite is saying is correct, then it is actually as

currently in the revised Zero Draft, so there is no need for an amendment. Thank you.

Prof. Yash Pal Ghai: Can I put it to vote now, please?


Prof. Yash Pal Ghai: Those who support the amendment which will give the authority to

establish standards to an independent body, please raise your hands or your placards and wait for

your vote to be counted.

Placards raised.

(Consultations at the “high” table and noise on the floor).

Prof. Yash Pal Ghai: Those who are opposed to the Motion?

Placards raised.


Prof. Yash Pal Ghai: Okay. I am told that the question is not very clear. What Article 57

Clause (c) does, is to give Parliament the authority to make laws to establish the standards that

the Media must observe. The proposal is that the authority to make or to establish the standards

for the Media should be done by an independent body; independent of government or political

control and reflective of the interests of all sections of the community.

In other words, the power will be taken from Parliament to an independent body to set standards.

Now, those who support this amendment, please raise your hands or your numbers.

Placards raised.



Prof. Yash Pal Ghai: Those who are opposed?

Few placards raised.


Prof. Yash Pal Ghai: I think the Motion is carried. Thank you. (Clapping).



Hon. Delegate Beatrice Bariu: Thank you, Mr. Chairman. I have my own Motion, number 76

on Article 55, but you have read fast and went ahead to read 56 and 57. Now, Mr. Chairman, I

would wish to ask to be allowed to go back to 55 and move my Motion. Thank you, Mr.

Chairman.


Hon. Delegate Beatrice Bariu: Where was I? I was here. You read very fast and I was raising

my hand.


Prof. Yash Pal Ghai: Have you moved your-- Does anybody wish to speak in support of this

proposal? I will take one Speaker.



Prof. Yash Pal Ghai: Does anybody wish to speak against the Motion? The Motion is

introduced by Delegate 270 and what she proposes is that Sub-Articles (2), (3), (4), (5) and (6) in

Article 57 be deleted in their entirety.

(Inaudible comments on the floor and consultations at the “high” table).

Prof. Yash Pal Ghai: I beg your pardon. It is Article 55, which deals with the freedom of

religion, belief and opinion--


Prof. Yash Pal Ghai: Can you move your Motion, please and identify--

Hon. Delegate Beatrice Bariu: Okay. Thank you, Mr. Chairman. My name is Beatrice Bariu,

I come from Nyambene District, and my number is 270. Mr. Chairman, I beg to move the

following Motion, that Article 55 be amended as follows; that we delete the Clauses (2), (3), (4),

(5) and (6).

Hon. Delegates: Why?

Prof. Yash Pal Ghai: Would you like to explain before you--

Hon. Delegate Beatrice Bariu: My reasons are these, Mr. Chairman. I have got my own

reasons. I feel that Article 55 Sub-Article (1) is enough to protect all the religions and freedoms

of worship in this country. Otherwise, Mr. Chairman, all other details can be enacted by the

Parliament and also they can be taken care of by the various or respective religions.

I am saying this, Mr. Chairman, because my concern is especially on the consistence of the

institutions. In all the details given there, Mr. Chairman, you will find that it is like when we

have this freedoms, especially in the institutions, all the religions will have to put structures in

schools and in other learning institutions. They will also have freedom of worship, each day


each religion is professing and this will affect the learning process. It will also destabilize the

co-existence of students, Mr. Chairman.

So, for this reason, I say that all the details in that Article be removed because this one will affect

all the learning institutions in our country. It will also affect all Kenyan children and they will be

divided along religious lines,--

Prof. Yash Pal Ghai: You have thirty seconds to conclude.

Hon. Delegate Beatrice Bariu: --education will be diluted and also learning will be affected,

Mr. Chairman. I am saying this because I know that-- I am a teacher by profession, Mr.

Chairman and I know when students come to school, every parent knows what he is going to

expect from us in certain institutions but if we allow institutions to have, say, all kinds of

structures of worship and the freedom to worship everyday, a child may go out of class and go to

worship on a Thursday, on a Wednesday or Friday or any other day and then the teacher may not

be able to know what to do because there is freedom.

Also, this can affect the offices.

Prof. Yash Pal Ghai: Okay. I think I have to cut you now. You have made your point. Do we

take a vote on it or do you want a bit of debate? Take a vote?


Prof. Yash Pal Ghai: Okay. Those who support this Motion, please put your hands up or

placards.

Few Placards raised.

(Noise on the floor as counting is done).

Prof. Yash Pal Ghai: Those who oppose this Motion?


Placards raised.


Prof. Yash Pal Ghai: I think the Motion is lost. Thank you. Can you continue reading, please?

PLO Lumumba: We are now on Article 58.

(Inaudible comments on the floor and consultations at the “high” table).

Prof. Yash Pal Ghai: Yes, Archbishop.

Hon. Delegate Archbishop John Njue: Chair, I am number 539, Archbishop Njue. I thought

that if the Motion is proposed, it has to be supported before it is voted for and it has not been

supported and I wanted to support it and there was no possibility.


Prof. Yash Pal Ghai: No, we do not have any provision for seconding.

Hon. Delegate Archbishop John Njue: Sorry?

Prof. Yash Pal Ghai: At this stage we do not need a seconder. I have explained this about ten

times to this Conference. At this stage, we do not need a seconder – under the regulations.

Hon. Delegate Archbishop John Njue: So now I cannot second?

(Inaudible responses from the floor).

Prof. Yash Pal Ghai: Yes. We have not had-- I have allowed one or two persons to speak in

favour and one or two against but there is no need for a seconder. It is very clear in the

regulations, if you read that, Archbishop.


Hon. Delegate Archbishop John Njue: But the issues raised, Chairman, are very serious. The

issues that are raised by that Motion are not imaginations because one thing is to have the

freedom of religion and the other one is to have the effect of that in the various institutions or

offices, so that then at the end of the day – and I thought her argument was quite clear – it may

become very difficult to be able to run the institutions. That is why I was thinking that she was

quite right in saying let us leave Sub-Article (1) and then let the rest be given by directives, may

be either from the respective ministries or from Parliament.

Prof. Yash Pal Ghai: Yes, I realize your point but I think we have taken a vote and there was a

very clear majority against the Motion. (Clapping).

Hon. Delegate Archbishop John Njue: So, now-- (Clapping). If you insist.

PLO Lumumba: Article number 58 – Access to information.



Hon. Delegate Father Joachim Gitonga: I think Mr. Chairman, we are doing ourselves

disservice by going so quickly. This Chapter is very important. With all these types of freedom,

we are giving people to spoil other-- We are now confirming, like for example gutter press,

which is abusing people, discussing individuals; what they do at night, what they do every

where! What type of a nation are we going to lead with all these types of freedoms? I think

freedom is guaranteed in Article 10 and the rest is left to the Legislature, to guide the

government on what to do with the coming up of religion.

Now, for example here – which I wanted to discuss – Article 55, Sub-Article (3)--

Prof. Yash Pal Ghai: I thought you said you had a Point of Order?


Hon. Delegate Father Joachim Gitonga: Yes, Point of Order. Sub-Article (3)--

Prof. Yash Pal Ghai: I thought you said you had a Point of Order?

Hon. Delegate Father Joachim Gitonga: Yes. I think even if I call a Point of Order--

Prof. Yash Pal Ghai: I am afraid this is not a Point of Order, I am afraid this is argument.

Hon. Delegate Father Joachim Gitonga: --we should not go so quickly on this matter.

(Uproar). You must consider.

Prof. Yash Pal Ghai: I have made my ruling and I intend to proceed on. Thank you very much.

Please, Secretary, read the Articles.

PLO Lumumba:

Article 58 – Access to information.

Article 59 – Freedom of association.

Article 60 – Assembly, demonstration, picketing and petition.

Article 61 – Political rights.

Article 62 – Freedom of movement and residence.

Article 63 – Refugees and asylum.

Article 64 - Freedom of trade, occupation and profession.

Article 65 – Protection of right to property.

Article 66 – Labour relations.

Article 67 – Social security.

Article 68 – Health.

PLO Lumumba: Health, there is something? 542.



Hon. Delegate Ibrahim Omondi: Thank you, Chairman. In Article 68 (1), I would like to

move a Motion to delete the last words, “including reproductive health care”.

Hon. Delegates: Why?

Hon. Delegate Ibrahim Omondi: I am coming. I am coming, give me a minute. Reproductive

health care, Mr. Chairman, contains within its scope, areas such as antenatal and prenatal care,

family planning, birth control, abortion and many other aspects.

Health, in itself - health care - generally includes a very broad scope, mental health, disease

control, community health, physical components and reproductive health. There are many

aspects of health. There is community health, mental health; this particular phrase is

mischievous, Mr. Chairman, because it is trying to sneak back the aspect of abortion which we

have already dealt with and it is doing that very subtly. It is doing that because it is avoiding any

other aspects of health and majoring on reproductive health, which does include abortion.

Mr. Chairman, health care in itself does take care of everything that a woman needs to be taken

care of. I think this is a medical ploy and I think we are being made to run into it. If we do not

look into it, we shall have removed abortion from one place and allowed it in the other place and

this is the place we would be allowing it in. (Murmurs).

My position, Mr. Chairman is that therefore, we should delete this Sub-Article and just leave it at

“health care”, which does cover for the whole care that any human being will need, including the

unborn one. I really think, Delegates, we should take this seriously, even as we took the

Abortion Article seriously. I plead with you, Delegates, let us remove this if we are serious--


Hon. Delegate Ibrahim Omondi: --about wanting abortion gotten rid off in this country and it

is happening everyday - seven hundred a day. We cannot live with that, we cannot live with our

conscience in a country that does abortion.


Prof. Yash Pal Ghai: You have used up your time, please!

Hon. Delegate Ibrahim Omondi: Thank you, Chairman.


Hon. Delegate Atsango Chesoni: Thank you, Mr. Chairperson. Atsango Chesoni, Delegate

number 510, representing Women’s Organizations. Mr. Chairperson, I raise to oppose that

amendment. I raise on this basis –most private health care schemes do not provide protection for

women when they are pregnant, so that when we buy insurance-- We have a right to insurance

and yet for the one thing which we are most likely to go through, we do not have medical

insurance, we do not have any protection over.

Reproductive health covers a whole variety of areas. We have already said over here that

abortion is illegal, except for where it affects a woman’s life. So, with all due respect to the

Honourable Delegate, I do not see why we should not allow women-- Many women are losing

their lives because they do not have access to health care. It is too expensive to give birth to a

baby, yet you want us to have our babies. How? Thank you. (Clapping).



Com. Githu Muigai: Mr. Chairman, my name is Githu Muigai. I am Delegate 570. I would

like to oppose the Motion to amend. (Clapping). I think the greatest service that any person can

render to this country is to give us healthy children to continue the heritage of our people.

(Clapping.) I do not think that any woman or man who intends to participate in that noble effort,

(laughter) should in any way, be constrained by the law. There is a misunderstanding here that

the reproductive health is for women; it is for men too. (Clapping). Thousands and thousands of

men in this country are in need of medical services in order to make them fathers. (Clapping and

laughter). The Constitution must support them in that effort. Thank you. (Clapping and

laughter).


Prof. Yash Pal Ghai: I am going to put it to the vote now.


Prof. Yash Pal Ghai: Those who support this amendment, which will delete the words

“reproductive health ”, please raise your hands or your numbers?

Few Placards are raised.


Prof. Yash Pal Ghai: Those who oppose the amendment, please raise your hands?

Placards are raised.


Prof. Yash Pal Ghai: Well, the Motion is defeated.

(Clapping, noise on the floor and consultations at the “high” table).

PLO Lumumba: I now, with the permission of the Chair, read Article 69 on Education.


Prof. Yash Pal Ghai: Yes, you have the floor.

PLO Lumumba: Please, come and give the microphone. We are sleeping on duty, there.

Hon. Delegate Winston Ogola: Thank you very much, Mr. Chairman. I had an amendment in

Article 68 (1).



PLO Lumumba: 69.

Hon. Delegate Winston Ogola: I had an amendment in Article 68 also.

Prof. Yash Pal Ghai: Let us take one at a time. We are on 68 now.

Hon. Delegate Winston Ogola: On 68?

PLO Lumumba: 69.

Hon. Delegate Winston Ogola: On 69 also, a different one.


Prof. Yash Pal Ghai: Could you move your Motion and give us in one Minute, your reasons for

recommending the deletion?

Hon. Delegate Winston Ogola: My Motion on Article 68 was like this: amend 68 (1) to read 68

Sub-Article (1), “Every Kenyan has the right to free health care which includes the right to

health care services including reproductive health care at all state institutions or medical

treatment”. That was my amendment in 68.


Hon. Delegate Winston Ogola: Can I go on, Sir? Basi mimi naendelea.

Prof. Yash Pal Ghai: So, you have various amendments in relation to 69, but I thought we were

discussing 68?



Prof. Yash Pal Ghai: Mr. Odhiambo, could you repeat for us? I think not everybody has heard

you. First of all, let us take it in order. The first is Article 68 and let us deal with 68 before we

go to 69--

Hon. Delegate Winston Ogola: Thank you very much.

Prof. Yash Pal Ghai: --and what are your proposed amendments to 68(1)?

Hon. Delegate Winston Ogola: Thank you very much, Mr. Chairman. I saw in 68(1) in the

Zero Draft, it was quite confused, diplomatic and meant to derail the healthcare in the country.

My first comment on why I am pleading with Delegates to support me is that, at the onset of

colonialism in this country in 1885, foreigners from Europe whose language we did not know,

whose culture we never knew, whose anything we never knew - they came and set up a

government in the this country with no taxes. The taxes were just the tails of rats. If you had

two or ten tails of rats you have paid tax and they give you free health and free education. When

it came to about 1903 or 1920, it was just 1 shilling and they were giving free healthcare. When

my eyes were seeing it was 5 shillings by adult males only; there was no female and they were

giving us free healthcare. Now when we have got too much money - the problem with Kenya

now is that it has got too much money - and we are charged taxes from the time of conception. If

you marry a woman and the sperm cell combines with the ovum it forms a zygote, an entity

which has no head - nothing. You pay tax when it is nine months--

Prof. Yash Pal Ghai: I think you have made your point.

Hon. Delegate Winston Ogola: It is alright. I think ourselves - Surely, at this time the when

Kenyan Government was even able to give Pattni over two hundred billion shillings, surely, we

can care about our children and feed them rather than giving all our money to Indians! – giving

our money to Indians.

Prof. Yash Pal Ghai: Please take your seat now. Please take your seat.


Hon. Delegate Winston Ogola: I think you just support me - I am crying, I am mourning,

actually. Thank you very much. (Laughter).


Prof. Yash Pal Ghai: Delegate Adhiambo has made a number of amendments to 68 and to 69.

Shall we first take up 68?


Prof. Yash Pal Ghai: Those who support his amendments, please raise your hands.


Prof. Yash Pal Ghai: Those who oppose, please raise hands.

(Delegates raise their hands)

Prof. Yash Pal Ghai: The amendments are defeated. Could we turn to--


Prof. Yash Pal Ghai: Who is asking for Point of Order? I cannot see. 037.

Hon. Delegate Gerald Otieno Kajwang’: Just briefly Mr. Chairman, thank you. I think there

is one thing which is going to be lost in that Motion. The wording is “every person” and I think

what he was trying to say is “every Kenyan”. I do not think we should make law for foreigners

here to benefit from our health services. No other country does it, anyway.

PLO Lumumba: Are we saying that what is on the table is that “person” be substituted with the

word “Kenyan”?


Hon. Delegates: (In unison) Yes.

Prof. Yash Pal Ghai: Yes, I thought that is what I put to vote that – we were dealing with 68 -

“every Kenyan” he wants replaced with “every person” is in 69 and I have not yet come to 69.

We have disposed of amendment to 68, he also has amendment to 69.

(Uproar from Honourable Delegates).


Prof. Yash Pal Ghai: As I understand the proposal is in 69(1), that we substitute – please listen

to me. He proposes that the word, “every person” should be replaced by “Kenyan” so it restricts

it to Kenyans. My questions is, do non-Kenyans not have a right to health? What does “right to

health” mean? Right to be able to go to a doctor, to be able to buy medicine. Are we going to

say the foreigners do not have those rights?

(Murmurs from Honourable Delegates).


Hon. Delegate Daniel Ichang’i : Thank you, Mr. Chairman. As a traveller in other countries,

we have also had trouble in health when we travel outside Kenyan. My name is Daniel Ichang’i ,

481, representing Professional Societies. We have fallen sick in foreign countries and

occasionally been treated there at the cost of that country. I think in this matter and in this whole

Chapter, we should be very careful if we are going to restrict some of these rights to just

Kenyans. I think nobody falls sick intentionally, but if you now begin to replace “every person”

in this whole chapter, there are many Articles where we are talking generally, I think it would be

dangerous. Asante. (Clapping).

Prof. Yash Pal Ghai: Put it to the question, then I am told. Those who support this amendment

whereby “Kenyan” will replace “every person” please raise your hands.


(Noise from Honourable Delegates as they raise their hands).

Prof. Yash Pal Ghai: Those who oppose please put up your hands.

No Placards raised..

Prof. Yash Pal Ghai: The Motion is lost. Thank you very much.


PLO Lumumba: May I now read Article 70, relating to housing. Is there a Motion on that?

Prof. Yash Pal Ghai: There is a Motion from Delegate 462. Samuel Tororei, you have the

floor.


Hon. Delegate Lawrence Mute: Thank you Chair. My name is Lawrence Mute. Chair, I wish

to invite the Delegates to read Article 70 with me, “Every person has the right to have access to

adequate housing”. Chair, the right which is guaranteed there is not to housing, but to access.

Now, that is not what we intended I am sure, ladies and gentlemen. Chair, in the Technical

Working group, the original formulation before we looked at it, simply said that, “Every person

has a right to adequate housing”. But we had provided and we had agreed within the Technical

Working Group that we would say that, “Every person has a right to accessible and adequate

housing”. Now, that makes a big difference. Chair, the current formulation of, “Every person

has a right to have access to adequate housing”, limits the right in a ridiculous way. So,

therefore, Chair, we are moving a Motion so that we replace the words, “access to” with the

words, “accessible and”. Thank you.

Prof. Yash Pal Ghai: Thank you very much. Are you presenting this on behalf of Delegate

462? Can you please say exactly what word you are deleting and what you are proposing to put

in?


Hon. Delegate Lawrence Mute: Chair, the words which we are deleting are “access to” and we

are inserting the words, “accessible and”. Chair, as I have explained, presently the right as stated

here limits, it is ridiculous, it is not what was intended.

Prof. Yash Pal Ghai: Yes, thank you very much. Thank you. Do we need a discussion on that

or shall we just proceed to vote?

Hon. Delegates: We vote.

Prof. Yash Pal Ghai: Those who support this amendment please raise your hands.

(Hon. Delegates raise their hands).

Prof. Yash Pal Ghai: It seems to command a great support, so the Motion is carried.

PLO Lumumba: May I now read Article 71, Food. Article 72, Water.

Hon. Delegate Winston Ogola: Point of Order, Sir.


PLO Lumumba: Article 73, Sanitation.

Hon. Delegate Winston Ogola: Point of Order, Sir.

Hon. Delegate Koitamet Ole Kina: Just take his Point of Order.

Prof. Yash Pal Ghai: What is your Point of Order?

Hon. Delegate Winston Ogola: (Inaudible).

PLO Lumumba: May I read Article 74, Environment. You had a Point of Order?


Hon. Delegate Winston Ogola: Mr. Chairman, I do not know what is wrong, it is alien to me

what is happening in this August House. Things are done in unorderly way. My Motion of 68,

for the benefit of Kenyans, was confused there and I do not know what was the results. Now, we

have 69, it has just passed at the Chair there without even informing me. What a great deal of

ingratitude unto us Farians. Can’t you even have sympathy for your children? Do you think you

earn so much money that you will never have problem. I want to be allowed to pass Article 69,

please. I am requesting humbly.

(Uproar from Honourable Delegates).

Hon. Delegate Winston Ogola: No, I do not know, 69, what was passed? I need to be informed

because I was the one who moved the Motion. Surely.

Prof. Yash Pal Ghai: We will--

Hon. Delegate Winston Ogola: 69 was rejected and we should be told. 68 was rejected and 69.

There is a Motion which is recorded by the Commission and (?). We should be

fair to each other honestly, my dear men. Also, I will be informed on 68, the results and

how it was arrived at. Thank you.


PLO Lumumba: May I now read 72, Water? Water, there is --

Prof. Yash Pal Ghai: I do not think there is.

PLO Lumumba: That is for my information.

Prof. Yash Pal Ghai: Yes 084.

Hon. Delegate Wangari Maathai: Mr. Chairman, thank you very much. I appreciate the need

for us to go fast, but it is also very important for us to appreciate what we could be doing. With


all due respect to Article 70, when you adjusted the way we just did, we actually completely

changed the concept of the original Motion, because, what we have now said is that, “Every

person has the right to have accessible and adequate housing”. That is very different from having

access to housing.

Prof. Yash Pal Ghai: I understood that the intention was to broaden the right under Clause (1)

“to accessible”, and I assume that was related to the disability question--

Hon. Delegate Wangari Maathai: Yes.

Prof. Yash Pal Ghai: --adequate. What is being asked for is the right to housing not a right to

access to housing. I thought that the purpose of the amendment was to strengthen Clause (1).

That is how I understood that, but if you like, we could have another explanation, but we actually

really have moved beyond that, we are taking vote on that.

Hon. Delegate Wangari Maathai: Mr. Chairman, what we can do which is necessary, what the

Honourable Delegate has done is necessary, but we need to combine the two concepts, they are

both very important. The original Motion was to give people housing, to have people access

housing. This Motion is to make the housing accessible.


PLO Lumumba: Do we proceed? Point of Order, 072.

Prof. Yash Pal Ghai: Yes, I will seek clarification from the Mover and if necessary we can

back to that, but my understanding was, and perhaps this could be confirmed now, that Article

(1) was changed to first make clear that, there is a “right to housing” and not “right to access to

housing”. There is a difference between the two concepts and I thought what was being

proposed was “a right to housing” which strengthens this and the second point was “accessible

housing” which I thought was in reference to those who have some disability and may need

special structures. Is that how you presented that, Mr. Mute?


PLO Lumumba: Give the mic to Lawrence Mute, please.

Hon. Delegate Lawrence Mute: Thank you, Chair. Indeed your interpretation is correct, Chair.

The principle is that every person has the right to housing and to adequate housing and then what

we are saying is that adequacy on it own, does not define certain important aspects for us. So,

yes, I agree that when we use the word “accessible”, we are not limiting we are saying that for

that right to housing, the housing needs to be adequate and also accessible. So I do not think we

are removing anything from our provision. It was never, “the right to access housing”; it was,

“the right to adequate housing”. Then we added “accessibility”. Thank you.


Prof. Yash Pal Ghai: 072, you have a Point of Order?

Hon. Delegate Harrison Kombe: Yes.


Hon. Delegate Harrison Kombe: Thank you, Mr. Chairman. I am Honourable Harry Kombe,

Delegate 072. Whereas, we accepted “every person” for 68, dealing with health, here I have a

problem or we are going to have a problem--

Prof. Yash Pal Ghai: I am sorry, we have gone past 68.

Hon. Delegate Harrison Kombe: Sorry, Mr. Chairman, just give me your ear. “Every person”,

right now we have problem of foreigners coming into this country, putting up cottages and the

Government is losing a lot of revenue. So, in this case, these instead of words, “every person”,

we should have “every Kenyan”, let that--

Prof. Yash Pal Ghai: We have dealt with that, I am sorry I am not going to go back to Articles

we dealt with.


Hon. Delegate Harrison Kombe: The housing--

Prof. Yash Pal Ghai: I sorry it is not a Point of Order. Please sit down.

Hon. Delegate Harrison Kombe: It is not a Point of Order--

Prof. Yash Pal Ghai: I am sorry it is not a Point of Order.

Hon. Delegate Harrison Kombe: But I am not standing on a Point of Order, Mr. Chairman. I

am not standing on a Point of Order. I wanted just to put across that “every person” is going to

put us in problems, because foreigners are putting up cottages and the Government is losing a lot

of revenue.

(Murmurs from Honourable Delegates)

Hon. Delegate Harrison Kombe: We have to allow adequate housing to Kenyans. So it should

read “every Kenyan”, not “every person”, that is what I am stressing. Thank you.


Prof. Yash Pal Ghai: What is the Point of Information?

Hon. Delegate Harrison Kombe: I do not want to be informed.

(Uproar from Honourable Delegates)

An Hon. Delegate: Point of information.

Prof.Yash Pal Ghai: Yes, please proceed.

Hon. Delegate Cecily Mbarire: Chair, I want us to understand the whole principle of the Bill of

Rights. Bill of Rights means there are human rights and human rights are universal, indivisible.


So you cannot in the Bill of Rights, come up with rights that are purely for Kenyans. Bill of

Rights is universal, please.

Prof. Yash Pal Ghai: Let us move on please Secretary.

PLO Lumumba: May now proceed, I am reading Article 73, Sanitation. Article 74,

Environment; Article 75, Language and Culture; Article 76, Consumer Rights, Article 77,

Administration; Article 78, Right not to obey unlawful instructions; Article 79, Access to

Courts; Article 80, Rights of Arrested Persons; Article 81, Fair Trial; Article 82, Rights of

Persons held in Custody; Article 83, State of Emergency.

Prof. Yash Pal Ghai: That concludes the Articles on--


Prof. Yash Pal Ghai: We have now concluded the discussion of the Articles. If you are

willing, I am willing to give Mr. Adhiambo a minute to explain his point on 69. I thought he had

explained, we had taken a vote, we had rejected that --

PLO Lumumba: There is a Motion, 576.


Hon. Delegate Mwai Gakuya: Thank you Chair for giving me this opportunity. I have a

Motion on Article 72.

Prof. Yash Pal Ghai: Why didn’t you raise that at the relevant point?

Hon. Delegate Mwai Gakuya: You were rushing and I was trying to talk to you.

Prof. Yash Pal Ghai: Sorry, okay.


Hon. Delegate Mwai Gakuya: Thank you. It is a new article, that Article 70 be amended by

adding a new clause that shall bar the State from demolishing property owned by poor urban

people living in ghettos, shanties and slums without following the laid down rules and

regulations under the United Nations. You remember what happened to our slums in Eastlands,

how they demolished them and people are sleeping outside.

(Murmurs from Honourable Delegates).

Hon. Delegate Mwai Gakuya: My Motion was left out, I got it today.

Prof. Yash Pal Ghai: I do not have your Motion here; I do not know they--

Hon. Delegate Mwai Gakuya: They forgot to put it on the records.

Prof. Yash Pal Ghai: Can you read the exact wordings, are you deleting or adding?

Hon. Delegate Mwai Gakuya: It is here; it is a new Article, on 70 (2).

PLO Lumumba: Let him read it.

Prof. Yash Pal Ghai: Can you read it, not everybody has a document.

Hon. Delegate Mwai Gakuya: 70(2) not 70(1).


Hon. Delegate Mwai Gakuya: 70(2), not 72. 70(2).

(Uproar from Honourable Delegates)

Hon. Delegate Mwai Gakuya: No, it is housing.


PLO Lumumba: It is actually covered in 70(1). It is covered in this, “Parliament may not enact

any law that permits or authorizes arbitrary eviction”.

Prof. Yash Pal Ghai: So what is the saying?

Hon. Delegate Mwai Gakuya: It is very important that we shelter our people.

Prof. Yash Pal Ghai: If you read 70(2) it basically covers the point you are making. It says,

“Parliament may not enact any law that permits or authorize arbitrary eviction.

Hon. Delegate Mwai Gakuya: But you saw what happened.

Prof. Yash Pal Ghai: I believe these are the UN standards you are referring to.

Hon. Delegate Mwai Gakuya: Yes, Sir.

Prof. Yash Pal Ghai: So, it is already in but in a different wording.

Hon. Delegate Mwai Gakuya: So?

Prof. Yash Pal Ghai: So, you are happy with that?


Prof. Yash Pal Ghai: So, it has been passed already and approved.

Hon. Delegate Mwai Gakuya: You put it in my wording, it is very important, you see--

Prof. Yash Pal Ghai: Well, wording is a matter for the Drafters, I will give it to them and they

will see what they will do with it.

Hon. Delegate Mwai Gakuya: Thank you, Chair.


Prof. Yash Pal Ghai: Thank you. We vote now, but before that, let us be satisfied that we

actually have a quorum, otherwise we will take it tomorrow.

(Uproar from Honourable Delegates and consultations at the “high” table).

Prof. Yash Pal Ghai: Could you get everybody in, in the neighbourhood, sit down and we can

get a vote then. Could we ring the bell?

PLO Lumumba: We will ring the bell and close the doors.

Prof. Yash Pal Ghai: Give us about 3 to 4 minutes and then we will have a vote on this--


Prof. Yash Pal Ghai: Please take your seats so we have a quorum and we take the vote, and

then we can release you until tomorrow morning.

Bell rings.

Prof. Yash Pal Ghai: Can we proceed to a vote now?

Hon. Delegates: The Secretary will again read the Articles (?)the title.

PLO Lumumba: I think we just say Articles this to this.

Prof. Yash Pal Ghai: Yeah, well Article 34 to 83, which constitute the Bill of Rights, those

who support the adoption of these Articles as a mandate please raise your hands. We need to

count this time, so please keep your hands up and the tellers, please be quick about your task.

Correct. Those who oppose, please raise your hands. Those who vote no, please.


Prof. Yash Pal Ghai: Those who are abstaining?



Prof. Yash Pal Ghai: While the votes are being counted, can we move on to Chapter 8? I

promise you we will release you by 6:00 pm, it is just a few more minutes and lets make some

more progress. The Secretary will read.

PLO Lumumba: With the Chairman’s permission, as the counting goes on, may I now read

from page 51, Chapter 7 titled Land and Property? I read Article 84 (1), Primacy of Land. I read

Article 85, Ownership of Land. 353.

Prof. Yash Pal Ghai: 353. Do you have a Motion?

Hon. Delegate Joseph Shuel: Chair, my name is Joseph Shuel, District Delegate from Laikipia.

Honourable Chair, I want to bring to the attention of this Conference the fact that we have had so

many leases entered-- I do not know whether I am clear. I am talking about the lease

agreements that have been entering this country. All of us have heard about them, even if you do

not come from those areas, a case in point is like the Magadi one.

Prof. Yash Pal Ghai: I cannot hear you, I am sorry. Can you get the microphone near to your

mouth or something?

Hon. Delegate Joseph Shuel: Sorry.

Prof. Yash Pal Ghai: Are you dealing with Article 86?

Hon. Delegate Joseph Shuel: 85.


Hon. Delegate Joseph Shuel: I am talking about Article 85 (3).

Prof. Yash Pal Ghai: Yes, all right.


An. Hon. Delegate: Point of Order. Point of Order, Chair.

Prof. Yash Pal Ghai: Carry on please.

Hon. Delegate Joseph Shuel: Chair, I was talking and I think I need to continue.

PLO Lumumba: There is a Point of Order, 379.

Hon. Delegate Joseph Shuel: So, what I was saying--


Hon. Delegate Ahindukha Wangula: Point of Order, Chair. Mr. Chairman, my name is

Ahindukha number 379, Kakamega District. Mr. Chairman as far as we are concerned, we have

no Motion on that Chapter and we have to continue.

Hon. Delegate Joseph Shuel: There is a Motion, I have put the Motion and the Chair has it.

Prof. Yash Pal Ghai: There is a Motion.

PLO Lumumba: There is a filed Motion.

Prof. Yash Pal Ghai: Yes, please carry on. Don’t raise frivolous points of view. Please carry

on now.

Hon. Delegate Joseph Shuel: So what I was saying before I was interrupted Chair, is that all of

us are aware of agreements entered in this country in the name of leases and treaties. In most of

these leases and treaties, communities have not been involved. What has been happening is that

the leadership, in the name of the community, has been entering into those treaties and some of

those lease agreements have along the way done more harm to the communities. Therefore, my

emotion seeks to amend Article 85, Sub-Article (3) by inserting the following words after the

words, “99 years” and “shall not be renewed until adequate consultations with the local


community have been held”. Chair, I have in mind where I come from, particularly Laikipia.

Almost 75 of Laikipia is owned by settlers who lease that land and the rest of the other

community are living on a meager piece of land and our hands are tied on this issue because the

government - when it leases this land - did not consult the community and those who leased the

land were just leaders and so what this new insertion brings is an idea of involvement and

participation of the local community in any lease agreements. Even the cry that we had the other

day in Magadi would not have come this way if we had such a lease.

Prof. Yash Pal Ghai: I think your point is clear now please, thank you.

Hon. Delegate Joseph Shuel: So I seek to move this Motion. Thank you.

Prof. Yash Pal Ghai: Yes. Thank you very much. One in support and maybe two in

opposition and then I will take a vote. 225, you are supporting this Motion?

Hon. Delegate Salim Ibrahim: Thank you, Chair. On a point of procedure, I think it will be

very fair if all of us were reading from the same book. Most of us do not have the Motions that

are being discussed and if you could give us the chance to go and get all these Motions outlined

properly and then we are able to contribute to them. Thank you.

Prof. Yash Pal Ghai: I can read the Motion for you. The Motion is in relation to 85 (3). You

will notice that 85 (3) deals with the rights of non-citizens to own land and it says that, “non-

citizens may hold or use land on the basis of leasehold tenure only, and such leases however

granted shall not exceed 99 years” and the proposal is to add at the end of that sentence, “and

shall not be renewed until adequate consultations with the local community have been held”.

(Clapping). So could I have one speaker in support and I will take two--

PLO Lumumba: 252.



Hon. Delegate Dubat Ali Amey: Thank you very much, Mr. Chairman. I would like to support

the mover of this Motion. Mr. Chairman, it is very unfortunate indeed that land has been

annihilated particularly in pastoral areas and I have a feeling that after the lease, not only those in

private hands, but even game reserves and the parks should be revisited and the local people be

allowed to have a say. Mr. Chairman, as he is saying, as much as we want investors to come to

this country, I think we have also certain fundamental rights that cannot be surrendered to other

people. Mr. Chairman, it is my humble feeling that after the lease of 99 years and even the land

that is now occupied as game reserves and national parks which have no animals, be revisited

and the locals be allowed to have a say on that land. Thank you very much.

Prof. Yash Pal Ghai: Thank you very much. Those who want to speak in opposition to that?

No one? Nobody wants to speak, so those who--

PLO Lumumba: Sultana.

Prof. Yash Pal Ghai: Sultana, 518.

Hon. Delegate Fadhil Sultana: 518, Sultana. Would that not be a contradiction to 86 (1) and

85 (2) because we have already classified land under public community or private land? So if

there is that control, will that control be on private land also, where you have to seek permission

from the community before you renew a lease?


Prof. Yash Pal Ghai: I guess one difficulty is to decide what a community is and how it is

organized but this is in opposition or in favour. I am now asking for those who are opposed to

this Motion.

PLO Lumumba: 525.



Hon. Delegate Ibrahim Ahmed: Thank you, Chair. My names are Ibrahim Ahmed Yusuf,

Delegate 525. Chair, the main thing is-- I am in favour of the Motion but the points that have

been raised by the Honourable Delegate Sultana do not actually contradict it and the point that

the Honourable Delegate was raising is that our country is just 40 years old. There are some

leases that were given during that time and the community did not have the chance to actually

have a say on it. An example is in Kipsigis land, Kericho, we have another in Magadi and we

have the one that has just been mentioned in Laikipia. (Clapping). Chair, what he is saying is

that the communities need to be given a say as to the renewal of that land, so they do not have a

chance with the enactment of this new Constitution. The only way we can do that is by enacting

what he has just said. Thank you very much. (Clapping).

Prof. Yash Pal Ghai: Well, can I take a vote now? Those who support the amendment, please

raise your hands. I think we will need to take a count because I am sure there is a majority but

we need to make sure it is two-thirds, so please keep your hands up.

PLO Lumumba: Why don’t we take the whole Chapter?

Prof. Yash Pal Ghai: Okay, we will take the Chapter, so the Motion is carried for the time

being and we will then do a collective vote on the 86.

PLO Lumumba: 86. I must apologize, quite a number of Delegates do not have the Motions

relating to that Chapter and therefore you are right in saying that we are not reading from the

same page. That will be rectified but what we will do is to read for the moment. So there is

indeed a Motion on Article 86 and what it seeks to do is to delete all references to specific Acts

of Parliament since the Draft Bill envisages the consolidation of all existing land laws. So what

Mark Adungo, 394, seeks to do is to delete 86 (2) (a), 86 (2) (f), 86 (2) (g), 86 (3) (a), 86 (3) (b),

86 (5) (a) and 86 (5) (b), to the extent that they refer to existing Acts of Parliament. Mr.

Adungo?

Prof. Yash Pal Ghai: I think the Drafters will have, of course, to have a look at that and make

sure that the precise land is identified correctly if we remove the reference to the Acts. So those

who support this--


PLO Lumumba: Then since Mr. Adungo is here--

Prof. Yash Pal Ghai: Yes, please.

Hon. Delegate Mark Adungo: Mr. Chairman and dear Delegates, that was my proposal and for

the sake of saving time, I had decided that I consult with the Drafters on those provisions.

Prof. Yash Pal Ghai: Yes. I think that will be a good way to proceed. Thank you very much.

PLO Lumumba: Article 87 – Tenure of Land.


PLO Lumumba: Mafunga - he has his Motion coming.

Prof. Yash Pal Ghai: Yes please, proceed.

PLO Lumumba: Mr. Chairman, indeed the Motion by mzee, if he permits me to read it for him.

What he proposes is to insert a new Clause immediately after Clause (ii) in Article 87 to read

thus, “The State shall establish a National Agricultural Produce Marketing Board under National

Agricultural Produce Marketing Board Fund to enhance the efficiency of services provided to the

land and property users and thereby reduce poverty”.

Hon. Delegate Mark Adungo: Ladies and gentlemen, Honourable guests. The vision--

(Uproar). I mean sorry, Honourable Delegates, sorry. We make mistakes. Honourable

Delegates-- (Noise).


Hon. Delegate Mark Adungo: Okay. I put in this Motion because I was surprised that we are

making a change of uniting these country together and we are leaving out our main resource.


How are we really going to improve this people in the countryside? There are no marketing

facilities properly set for these people. People have been suffering a great deal. Those who

come from Western know how we are placed in a very difficult situation when it comes to

marketing of the produce. People produce 90 kilos of maize at about Kshs.1200/= and they are

told to sell it at Kshs. 950/= in October when they are harvesting. When you go there now, that

maize is selling at Kshs. 1600/=, so this is not fair for the producer. He loses and he is the same

consumer so I think that it is better for the Marketing Board-- Marketing Boards have there

during the colonial time. There is Cap. 320 and Agricultural Marketing Board was established

and it was in the Ministry of Agriculture. So I thought that it is an appropriate time now for us

here to ask the Ministry to establish Agricultural Marketing Boards. By this one I mean it will

take on cereals as well as dried seeds like beans, dried oil seeds--

Prof. Yash Pal Ghai: I think your point is understood now, please move your-- I should remind

you that there are many provisions in the Constitution which require the government to

undertake programmes of economic development and agricultural development. I think the

actual method to be used should be left to the government. The Committee on Commissions and

the Delegates generally have been concerned with too many Commissions and you are

recommending two more Commissions, when this is really something for the government to

decide.

Hon. Delegate Mark Adungo: Mr. Chairman, it is only one Commission, that is National

Agricultural Marketing Board and if you have put there a vote, you must give it funds so--

Prof. Yash Pal Ghai: Yes, I am going to give it a vote, I am just hoping you might want to

withdraw but if you do not then I will follow the procedure. 83.

Hon. Delegate Andrew Liyale: With the greatest respect Chair, to the fact that we want to

make as much progress as possible and given that I personally participated in this particular

Committee of Land Rights and Property, I feel that we might give it a raw deal. It is rather late

in the day, I suggest Chair, with greatest respect, that you give us the count on what we have

voted on and we adjourn and we start on Land Rights tomorrow morning. (Uproar). This is so

that we are fresh and we can make decisions properly, that is my suggestion.


Prof. Yash Pal Ghai: Well, the Delegates seem to want to go on and I would ask Delegates who

are walking out please to sit down so that we do have a basis for discussion. Let us see if we can

clear one or two.

PLO Lumumba: In fact we have just received information, that as regards references to the

Act, it has already been dealt with and as regards Mzee Mafunga’s proposal, it is dealt with in the

Agriculture Act.

Prof. Yash Pal Ghai: We have a Motion here that we should adjourn now. (Uproar). We will

continue? (Uproar). All right. Secretary, please carry on.

PLO Lumumba: The next Article is Tenure of Land and we do have a Motion by Philip ole

Sironka. Philip ole Sironka, it reads thus: 87 (4), insert the words, “through community land

ownership association” immediately after the word “collectively” so you would kindly read with

me 87 (4) and see where the insertion is to be made. After the word “collectively” which is the

last word to read, “through community land ownership association”. So it will read, “through

community land ownership association” immediately after “collectively”.

Prof. Yash Pal Ghai: It is very unclear to me - what it means.

PLO Lumumba: Ole Sironka.

Prof. Yash Pal Ghai: Is Mr. Sironka here? You want to speak to your Motion for a couple of

minutes? 461, yes.

Hon. Delegate Philip ole Sironka: Yeah. My names are Philip ole Sironka but I would like to

withdraw my Motion and accept it as it is. Thanks. (Clapping).



PLO Lumumba: There is also a Motion 87 (6) (xv) from Honourable Wangari Maathai and it

reads delete the words, “the Coast, North Eastern, Rift Valley Provinces or whether” and

substitute therefore the word “Kenya”. Honourable Maathai is there.

Prof. Yash Pal Ghai: If you want to speak, you are welcome.

Hon. Delegate Wangari Maathai: Mr. Chairman, I was a member of this Committee. One

reason why-- I thought that if we put “Kenya” we would cover it better than we had put it is

because there are many places in this country where land had been taken away from

communities. It is not only in Coast, North Eastern and Rift Valley. So I thought that rather

than name all the provinces, if we say Kenya, then the State can look at all the places in the

country. (Clapping). So I do move Mr. Chairman, that we replace those words with the word

“Kenya”.

Prof. Yash Pal Ghai: I notice that it does say Rift Valley Province or elsewhere but I am going

to take two, one for and two against and put it to a vote. 599.

Hon. Delegate Leslie Mwachiro: Chair, 599, Leslie Betawa Mwachiro.

Prof. Yash Pal Ghai: Order! Please, please.

Hon. Delegate Leslie Mwachiro: Chair, I beg to oppose this amendment on the following

grounds. The Article as it stands is basically recognizing the problems of land at the Coast and

in the Rift Valley and this is basically why it was inserted, to particularly emphasize on the fact

that there are squatters in these areas and their plight needs special attention, rather than

anticipate that some people might also have and we know they do not have. So with those few

remarks Chair, I beg to oppose this amendment, otherwise it is going to deny the regions which

have been mentioned, their specific rights to deal with the issue of squatters. Thank you.

Prof. Yash Pal Ghai: Would anyone wish to speak in favour of the Motion? 529.


Hon. Delegate Patrick Musungu: Thank you, Mr. Chair. My number is 529, Reverend Patrick

Musungu. I would like to speak in favour of the amendment in the sense that we already know

that once this document is going to be enacted, we shall not have what is appearing here as

Coast, Eastern, Rift Valley Provinces and therefore, in order not to belabour ourselves with

things that are going to become contradictory and things that can change, because even if those

Provinces remain, they are subject to change and names will not be static, they are dynamic.

People might decide to rename Rift Valley Province by another name tomorrow as a community

and therefore we cannot make that a Constitutional matter which will remain here. We are

talking about land abuses and land abuse in Kenya is a cross board and we would rather have that

provision affecting the entire Republic, other than discriminating against other provinces. Thank

you.

Prof. Yash Pal Ghai: Thank you. I would like to put you to vote now. Actually the vote is not

that significant because the word here is “these provinces or elsewhere”, so in fact in one sense

all the country is covered. However, I want to put this specific Motion to a vote. Those who

support the proposal, that reference should be made to Kenya and not to specific provinces, will

you please raise your hands?

(Honourable Delegate(s) raise their hands).

Prof. Yash Pal Ghai: Those opposed?

(Honourable Delegates raise their hands).

Prof. Yash Pal Ghai: I think it is rejected. (Uproar) . You want to take a vote again?


Prof. Yash Pal Ghai: Okay. Those in favour of the Motion, please raise your hands.



Prof. Yash Pal Ghai: The tellers, can you please--

PLO Lumumba: Let us do the count please. It may be too close to call.

Prof. Yash Pal Ghai: So tellers, please count the votes.

(Murmurs on the floor while vote counting goes on).

Prof. Yash Pal Ghai: In replacement of the reference to the Coast, Eastern, North Eastern and

Rift Valley Provinces by the word “Kenya”. So those who are supporting it, please raise your

hands.


Prof. Yash Pal Ghai: Same people, okay. Those who oppose this Motion?


Prof. Yash Pal Ghai: It seems to me that--


Prof. Yash Pal Ghai: Okay, tellers please quickly. There is no Point of Order during the

voting, I am sorry to say.

(Counting goes on).

Prof. Yash Pal Ghai: Delegates who voted in support of the amendment were 76, those who

opposed it, 176, so the Motion is lost. (Clapping). Now, can you just say the voting for the

other one? I need to give you one more vote count.

(Murmurs from the Delegates).


PLO Lumumba: The voting for the Bill of Rights. Those who support the “AYES” are 280

and those who oppose 3, abstentions 2. There was lack of quorum and it means that the matter

will be subjected to voting tomorrow morning.

Prof. Yash Pal Ghai: Also I propose, in view of the lateness of the hour, that we adjourn till

tomorrow morning 8:20 a.m. Thank you.

The meeting adjourned at 6:25 pm.

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