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CONSTITUTION OF KENYA REVIEW COMMISSION

(CKRC)

Verbatim Report of

CONSTITUTION OF KENYA REVIEW COMMISSION PLENARYMEETING HELD AT LEISURE LODGE, MOMBASA

September, 05, 2002

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CONSTITUTION OF KENYA REVIEW COMMISSIONPLENARY MEETING HELD ON SEPTEMBER 05, 2002

AT LEISURE LODGE, MOMBASA

Present

1. Prof. Yash Pal Ghai - Chairperson2. Prof. Idha Salim - Vice Chairperson3. Prof. W. H. O. Okoth-Ogendo - Commissioner4. Prof. Wanjiku Kabira - “5. Dr. Githu Muigai - “6. Dr. Charles Maranga - “7. Mr. Domiziano Ratanya - “8. Mr. Paul Wambua - “9. Ms. Salome Wairimu Muigai - “10. Mr. Abubakar Zein Abubakar - “11. Mr. Isaac Lenaola - “12. Dr. Abdirizak Nunow - “13. Dr. Mosonik arap Korir - “14. Mr. Riunga Raiji - “15. Mrs. Abida Ali-Aroni - “16. Ms. Nancy Baraza - “17. Mr. John Mutakha Kangu - “18. Pastor Zablon Ayonga - “19. Bishop Bernard Kariuki Njoroge - “20. Ms. Kavetsa Adagala - “21. Mr. Ibrahim Lethome - “22. Mrs. Alice Yano - “23. Mr. Isaack Hassan - “24. Hon. Mrs. Phoebe Asiyo - “25. Ms. Salome Muigai - “26. Dr. Swazuri - “27. Mr. P. L. O. Lumumba - Commission Secretary

Drafts Team:1. Prof. Crabbe2. Margaret Nzioka3. George Nagota

Prof. Yash Pal Ghai: I have just started the meeting. So, will you please take your

seats. Okay, please take your seats and I am going to ask Com. Isaack Hassan to say

prayers for us this morning.

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Com. Hassan: (Prayer) (prayer in venacular). Amen

(laughter and inaudible comments by Commissioners)

Prof. Yash Pal Ghai: When we adjourned yesterday, we had gone upto No. 9 of the

summary recommendations on page 9, and if you give me a chance, I am going to ask

Com. John Kangu if he wants to introduce or he thinks that the language is clear enough,

and we just begin our discussions.

Com. Kangu: Mr. Chairman, I think, to save time, members have read through this,

and we can just go straight to their contributions.

Prof. Yash Pal Ghai: Yes, any comments? Yes Charles.

Com. Maranga: Mr. Chairman, the issue where we are saying no use of Government

facilities, spare time on State media, form parties and even liberalization of the airwaves,

including the TV. Mr. Chairman, that is a major issue and it has never been enforced.

So, I think even if we provide for a Constitutional principle on that, we need to see how it

can be enforced. Otherwise Mr. Chairman, the state media and also the liberalization of

the airwaves as you know, has been a major point of contention. So, Mr. Chairman I

would want stricter ways of enforcing the same.

Otherwise Mr. Chairman, I also want to say there should be a restriction on the

expenditure of money or resources on elections. And Mr. Chairman, I think we need to

have a calculation, like, the earlier times, it was Kshs.40,000/-, but now maybe because

of inflation and other…., maybe we can beg it to Kshs.500,000/-. Thank you.

Prof. Yash Pal Ghai: Thank you very much.

Com. Hassan: Mr. Chairman I am not sure whether we will have any justification to

force privately owned media houses or major stations, because accessibility is to the

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shareholders and to the owners of that media house to do bulky fair reporting, because, I

don’t think the only organization I think we have, we can lawfully regulate the KBC

which is a permanently owned organization. But to make the same rules and regulations

of KBC and Nation TV for example or KTN, or Citizen TV or any other private media

house will not be right. So, I am not sure, I think this should be reframed so that, that

principle is captured.

Prof. Yash Pal Ghai: Its quite common in many countries where the media is

permanently privately owned to have such a provision. That is what I thought.

Com. Hassan: But some privately owned media houses, I thought are even run by

political parties. So, I am relating it closely to a system political ideology or maybe the

Opposition or the Government.

Prof. Yash Pal Ghai: Well, what we want to do I think is to, I think we have to

balance the freedom of the media with the responsibility of the media, see the duties.

Anyway, let us hear more views.

Com. Githu: Mr. Chairman, I would like to reinforce the view by my friend Com.

Hassan. Unless we are to request all public transporters to avail their vehicles to carry

voters on election day, and no restaurants to feed voters on their way from the voting

house, we must have consistent rules in the Constitution.

The rule may appear in 50 Constitutions of the world. We live in Kenya, we are talking

about Kenyan circumstances. Any investor who has gone out of his way to put money in

a radio station, that is private, is beyond our reach. Unless we want to rewrite the rules

on compulsory accusation of private property. We must deal with public media, because

this is a media owned by the people of Kenya, and which is within our…. We can write

non-discrimination regulations, and we can require that the private media shall not be

used for hate speeches, for war-mongering, for a million of one other things. But unless

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we have Constitutional provisions allowing us to confiscate public or private property,

there can be no justification for it.

Prof. Yash Pal Ghai: Yes.

Com. Prof. Okoth-Ogendo: Mr. Chairman everything is on the table. We are arguing

from the perspective of the existing Constitution, forgetting that we are trying to create

new Constitutional norms, and therefore, everything is open, it is on the table.

Prof. Yash Pal Ghai: John, Raiji then Zein.

Com. Kangu: Mr. Chairman, I do understand the arguments that are being put by my

brothers. But I would like to state that, we are saying that we must restrict expenditure

during elections and during campaigns. Now, if we leave private media to operate the

way they want, if I want to go into campaigns and I own my own media house, and

choose to use it for the campaigns of myself and my candidates, how does that reflect on

the restrictions on expenditure in campaigns? How does it reflect in terms of one

candidate having an advantage over the others?

And I want to say that, we look at it from that angle, but secondly, we can regulate the

use of the public media during elections from the point of or at the level of licensing.

That when we are licensing media, and the Government is giving them airwaves and so

on, certain conditions are set on the basis of which a private media has to operate. And

one of such a condition will be, that during elections, they will have to agree equal

opportunity to candidates so that we have a level playing ground, because we are talking

about private property, but here we are trying to create a level playing ground for

purposes of elections. And I think that is the angle from which we should operate.

Prof. Yash Pal Ghai: Thank you. Raiji.

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Com. Raiji: Thank you Chair. I fear we are confusing two concepts – ownership and

regulation. The concept of regulation of private property here, in Kenya is not new, we

are not breaking new grounds. We have it in the banking sector where banks are required

to lend a certain amount to the agricultural sector. That is not interference with the

ownership of private property. And it is common in all countries to regulate the conduct

of any facility, of any investment that is placed within the country. I am aware that even

a country like France, the other day and that, they require by law that a certain number

percentage of films screened, must be French made. So, there is absolutely nothing. In

fact there would be everything wrong if we allowed private media to be stopped or be

controlled by one party.

And again, as my colleagues have conceded, that the same reason or basis or philosophy

that we have for prohibiting them from showing, for example, engaging with it

campaigns, or scandalous affairs, is the same principle that we use to promote the

principle of fairness to all political parties, and I think that is a very legitimate

recommendation.

Now, just a small bit on the issue raised by Com. Hassan regarding the resources. I think

in addition to restricting the level of expenditure, I think we also need to probably think

of a mechanism of disclosure of resources or funds to prevent criminals and others from

purchasing an election seat, or even the Presidency. And I think that tells something now

that we are in the process of making a new Constitution that we should think about,

particularly, in view of our experience in the last two elections, when no man of people

came and eventually influenced the outcome of election. And the election itself may not

have reflected the true feelings of the people who voted. Thank you.

Prof. Yash Pal Ghai: What is your precise recommendation on the\is?

Com. Ratanya: Yaah, my recommendation is that, candidates be required to disclose

sources of campaign, donations, exceeding say, maybe perhaps something like

Kshs.100,000/- or maybe more. But I think the principle is that we have a limit.

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Com. Zein: Thank you Chair. One of the way of treating media is to understand that it

is the source of information which then will either make people vote this way or that way.

And if there are no rules which makes the access to media fair, then you would have

stealth results based on the information which people have. So, we must look at this on

two lines. The first one will be that, in terms of public funded stations and media houses,

we can have very specific requirements. But then, on the second level of private

ownership, it doesn’t mean they become immune to civic duty and public duty, and I

agree with Com. Raiji that the regulatory machinery can be used to make sure that as

many or all national campaigning parties and individuals have access to the airwaves.

But that does not include the right of a media organization to come out in its editorial

policy to say we support candidate ‘A’ or party ‘E’. But it means that the private media

will give structured access to all competing interests or competing parties and

individuals. But at the same time, it does not take away their right at the editorial level,

to say, we support party ‘A’ or party ‘B’. And we cannot treat media like other

resources. For example, transport and so on and so forth. So, three recommendations:-

i. We must isolate the things which we need to do at the legislative framework

level and possibly even write these ideas down so that we say, this need to go

to the legislation in order to do that.

ii. But at the level of airwaves being a scarce resource, we must put in principles

at the Constitutional level on how they will be utilized to achieve national

goals, we are going back to national goals.

iii. Then the third one is, declaration of campaign funding. I would even go

lower than Com. Raiji and say, any individual or political party which

receives more than Kshs.50,000/-, they should declare it and say what the

source is. And I will further go further than Com. Raiji and say, we need to

say that no political party may receive foreign funding or even individuals.

Thank you Chair.

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Com. Prof. Okoth-Ogendo: Mr. Chairman, I just want to comment on the matter of

question of the relationship between public duty and private property, and to remind the

Commission that the adoption of the police power of the State is not one that we can

question at this particular point. That the State has the power to regulate private property

or private interest if the public interest so demands it. That is clearly stated in Section 75

of the Constitution as it is now. It has always been an extent of political sovereignty and

it has always been part of our law. What we would be saying here, we are not going so

far as to say, that is an acquisition of property, because the transition from the police

power of the state to eminent domain is one that will require very careful delimitation.

And we are going to deal with this not just the context of TV and media houses, but also

in context of land and in any event in which the issue as to whether or not private

property ought to be regulated by the State arises. And therefore, I don’t think we are

breaking new ground.

And the other thing, it is anything that we can leave out. If you let the media to or if you

allowed anybody, the Macharias of this world to create their own media and start using it

as part of their own campaign tool, and then you say that is private property, I think we

would be prejudicing and clearly violating a fundamental principle of public interest

which is, that nobody should be allowed to use the appropriate such a way as to prejudice

what human call the common of the public interest, and therefore, I would myself, rather

than querrying the centres on TVs and so on, I would restructure it.

Com. Muigai: Thank you Mr. Chairman. I just want to remind ourselves that the great

nation of America which is on the forefront on the privacy of private investment and also

on the freedom of the media and press, when on 11th September, they needed to deal with

the media in a way that was useful for their country or when they needed to limit the

power of the media, private or otherwise for the good of the public, they went right ahead

and did it, and they didn’t even need to legislate against it or legislate on towards it. So I

am saying that, I would like to add my vote to the people who said that, the media is a

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tool of this country and when the public good is in question or needs it, the media should

be there for the public good.

Prof. Yash Pal Ghai: Ibrahim.

Com. Lethome: Thank you Mr. Chairman. Whereas I agree that there should be a

balance in as far the coverage by TV and radio stations is concerned, but I was just

wondering how achievable that is. I happen to be a director of Ukraim, which is privately

owned by the Muslims or Supreme Council of Kenya Muslims, and I was just wondering,

suppose during the campaign, one of the candidates comes and buys airtime from us,

definitely because at the end of the day what matters to the shareholders is the balance

sheet, we will accept. Am I going to give the same coverage to another candidate who

does not come and buy airtime from the radio station? So I was wondering how

achievable that is in as far as the privately owned stations are concerned.

Prof. Yash Pal Ghai: Hassan.

Com. Hassan: I think Mr. Chairman in some ways, what I wanted to raise has been

raised by Com. Ibrahim Lethome, and although we all seem to be discussing what I

would call the details which may have gone to legislation, and we are even ready to put

here the principles which will govern such legislation, I think just because I like such

formula or have similar or such kind of provisions, it is not very helpful. We need to

very clearly reflect the Kenyan situation as the others have said, and I for myself, I think,

I find great difficult when you say all TV and radio stations should be required to ensure

balance between political parties. It is extremely impossible to achieve this balance,

because, at the end of the day as Com. Ibrahim has said, of course you can put limitations

as Com. Zein has put in and Com. Raiji about the head campaigns, the head speeches,

enticement to public violence, security, tribalism, maybe you can limit the kind of

business they can broadcast, but you cannot require them to give the same coverage to all

political parties and political events, because, for one, they will cover what is news-worth

for them in their judgement as news houses. So, they may find one politician’s rally,

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very news-worth because of what he says or the kind of campaign speech he gives, and

they cannot want to cover somebody else. So, and that person now cannot come back

and complain that I am being given media black-out, maybe he is very boring or he

doesn’t give views worth information. So I think we need to strike a balance between

this and I for myself have a very big problem with this rule as formulated. Thank you.

Com. Githu: Mr. Chairman, I am surprised that my teacher friend, Prof. Okoth-Ogendo

says, police powers of the state is one of the doctrines in our current Constitution. When

I may say it a minute ago, the power of compulsory acquisition is in our Constitution, he

said, all issues are on the table, it would appear to me that, that must include police

powers and all other powers.

Mr. Chairman, I think we can salvage what is important here. The principle I think that

we have all agreed is that we can require the private media to provide some access to

persons who are seeking political office. We however cannot get round the question, that

their primary purpose in large investment is to make a return. I think it will be

unrealistic. I think that it would be unenforceable.

I think then, Mr. Chairman, that what we want to do here is not get a balance between

political parties, because even that phraseology, I am not sure for my part, I understand

what it conveys. If as my friend Sheikh Lethome has said, a radio station, a TV station is

selling space, it has been making losses for the whole year except during that month of

political campaign, we are saying through the Constitution or any other organ, now, you

cannot recoup your losses or the investments that you have done because, you must give

KANU - 4 hours, DP - 4 hours, SAFINA - 5 hours, and so on and so forth. It is a

ridiculous proposition in my view with tremendous respect.

I don’t think that in trying to allow access to the media including the private media, we

can approbate the fundamental principle, including the freedom of the press. In this

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country we have always said, the press operates from a position of subservient to a

regime of law that terrorizes journalists and media owners.

We write a new Constitution in which we state, ‘hang on now, we are even going to take

more from you’.

(Interjection) Com. Prof. Okoth-Ogendo: Now, are you through’?

Com. Githu: I was then going to say Mr. Chairman, let us formulate the principle in the

following terms, and that all persons engaging in political campaigns shall be granted

access to the public and private media upon such terms and conditions as maybe enacted

in an Act of Parliament. And leave the details to be worked out there, to be negotiated

with the media houses themselves, so that they can say what they cannot afford, what is

practical, what is reasonable, then we move.

Com. Prof. Okoth-Ogendo: I think what we are doing here is agreeing on the general

principle. And the general principle is that, the media – private or public cannot be

immune from the principle of the State. The actual details of it would have to lie in the

province of the legislation not the Constitution, I think that is what we are saying here.

I want to understand, Com. Githu, would that satisfy you?

Com. Githu: Very good point, but what I am opposed to Mr. Chairman is this

Constitutional balance between political parties. Because, I think it is such an epilogues

way of phrasing it, that ultimately it may mean nothing. We may give each party one

minute one day.

Com. Prof. Okoth-Ogendo: Let us have John Kangu……….

(Interjection) Com. Baraza: No, Mr. Chairman, I was next.

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Com. Prof. Okoth-Ogendo: Ooh, you were next. Sorry.

Com. Baraza: Thank you Mr. Chairman….

(Interjection) Com. Prof. Okoth-Ogendo: I took over without courtesy.

Com. Baraza: Mr. Chairman, I was going to the agree to the extent Com. Githu has

agreed with you, but probably broaden the principle to require some rule, I don’t if that

will come into the legislation or where, some rule that will make the media adhere to the

general principles of enforcement of democratic ideals as they deal with political parties.

I would go with that.

And then on the issue of expenditure of money, I would agree with (who said

Kshs.50,000/-)?

Com. Raiji: Me.

Com. Baraza: Yes, Com. Raiji. I think I will agree with Com. Raiji that money beyond

Kshs.50,000/- should be disclosed and explained to the public how it is obtained. Thank

you.

Com. Prof. Okoth-Ogendo: But again on money, we are not going to write limiting the

Constitution. I think what we are agreeing on is that there should be limitation.

Com. Baraza: Yes, the principal of restriction, I have no problem with that. So, where

we feature the Kshs.50,000/- will come later, but the principle, I do agree with the

principle of restriction.

Com. Prof. Okoth-Ogendo: Now, John Kangu.

Com. Kangu: Now, Mr. Chairman….

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Com Nunow: I was the last one on the list, identify my name.

Com. Kangu: Let me finish then you come.

Com Nunow: No, I have to be identified by name.

Com. Prof. Okoth-Ogendo: Nunow?

Com Nunow: Ayee.

Com. Prof. Okoth-Ogendo: go ahead.

Com. Nunow: Thank you Mr. Chairman. I think when we talk of rights we need to start

with where we are, so that we all contribute as required. I will certainly support those

people who advocate for responsible media operation. And I am strongly for the general

principles of regulation of media operations rather than control. I would really be

hesitant to enforce any control that may be seen to border acquisition. But regulations

certainly, at various levels, and some regulations could be much stronger and much

categorical than others.

Having said that, I would comment on the last but one bullet which starts ‘All TVs’ and

say that, to me, this appears to be two points, separate points that are merged. One talks

of the radio station and TV station with regard to reporting to political persons, and the

other talks of political parties and how they should be required to debate their policies.

And therefore, those two points should be separated so that the second point which all

parties should be required by law to broadcast and base their policy messages through

the state media is crucial. This is failing the manifesto of the public. And if that is the

case, it shouldn’t be tied with the need for airtime or reports in time.

Then the last bullet talks of restriction on expenditure of money and resources on

elections. I think this goes beyond what Com. Raiji and Com. Zein commented on

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regarding restriction on how much you can receive from abroad, and whether indeed you

should receive anything from abroad or not, from foreign account. But, this talks of how

much you can put in, in terms of campaign.

We need to, I would probably be happy if the committee that have put some thought into

this, if they gave us specific figure, and this would be good because, the convenor of the

committee would probably be the next to speak. If you could shade light on what they

had in mind, as the limit beyond which it would be an offence that to commit in a

campaign funding.

Com. Prof. Okoth-Ogendo: Thank you very much. We would have Com. John Kangu,

then Charles Maranga, then I think we have to move on.

Com. Kangu: Mr. Chairman, first I want to say that, after listening to my colleagues

and reflecting what we discussed yesterday concerning independent candidates, that our

formulation is in fact not addressing the problem properly because we seem to be talking

about political parties in disregard of independent candidates, and so, there would be

need to reformulate the rules. But that aside, I still would like to hear from my

colleagues what they think about the link between restrictions on money or resources that

can be used in elections and the use of the media.

I would like them to talk about that. Because, if we say we are restricting how much

resources an individual can put into his campaigns, and we leave it open for someone to

increase his resources through use of his private media for campaign, then we would not

be limiting the resources, and I think we must find a way to link the two.

Now, coming to what Dr. Nunow has said, it is my view that since the inflation is an

issue that cannot be easily predicted, what we need in the Constitution, is the principle

that the amount of money or resources one uses in elections must be restricted.

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Secondly, the sources of those resources must also be restricted. To what extent, I think

it is an issue that can be dealt with by Parliament from time to time taking into account

the inflation trends in the country. So, the Constitution should only carry the principle

that we restrict the amount and the sources, but Parliament can decide the amount and

sources from time to time.

Com. Prof. Okoth-Ogendo: Thank you John. Charles.

Charles Maranga: Mr. Chairman, I think, let us approve this principle that all TVs and

radio stations should be required to ensure balance between maybe political parties,

independent candidates during campaign period. And Mr. Chairman, maybe during that

period, the private stations, if they are doing business, maybe the Government can be able

to subsidize. If Mr. Chairman we are going to accept the principle of funding political

parties, then, that is the kind of subsidy which can go to the TV stations and radio

stations. But otherwise Mr. Chairman, the principle should be approved. Thank you.

Com. Prof. Okoth-Ogendo: Zein do you agree to move on?

Com. Prof. Okoth-Ogendo: Well, let me just take two more – Zein and then the

Pastor, and then I think we must move on.

Com. Zein: Few things, Chair, that:-

i. That we had specifically said as a Commission that part of the principle that

we are going to lay out in the Constitution, we are going to have ideas. At the

beginning we were thinking of having complete legislation framework to

accompany the Constitution, to take care of the problems of our independent

Constitution. That could not be done, it cannot be done now. But that does

not mean that we cannot isolate ideas for legislative framework to accompany

some of these things we are saying because we keep on mixing principle with

details which need to go to legislation. So that is the first point. I would hope

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that the people who are preparing this paper, will also be required by Plenary

to isolate ideas for legislative framework.

ii. The second thing, Prof. we need to also, this formulation the way it is now

leaves a lot of questions. We need to isolate between local and national media

and the principles applying to national and local media. If a local candidate

wants access to national media, what happens? Again, what if a national

candidates wants access to local media, and so.

iii. But the last point which I said is the third and last point is, Chair, I hope we

will be able to come and deal with the concept of media, other than the way

we are doing now through the back door in terms of introduction of media in

the sense that it is part of the election campaign. In reference to what Com.

Raiji said, which he made reference to the French experience in terms of the

cultural content of media and how much they are required by the Constitution

to allow French culture to access media, that is something we need to deal

with separately other than just elections. So I hope we will be able to come

and deal with media, not only through the election campaign or through

freedom of press provisions, but deal with media on its own as a

Constitutional question. Thank you Chair.

Com. Prof. Okoth-Ogendo: Pastor Ayonga.

Com. Pr. Ayonga: Mr. Chairman, it is very easy to say things and put some rules in

place without having the machinery to control a regular account of the actual expenditure.

Now, I am thinking of this, when we say Kshs.50,000/-, that is just an example, that, that

is the amount that could be allowed for a candidate to spend. How do we account for

their motorcade that follow this person? There will be so many, some are going to use

even helicopters, some are going to give gifts in the forms of sugar, salt, these things that

are given under the table, which matter very much to the mothers out there and which are

very meaningful to them. How are we going to control this? A person can say, yes, I am

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spending Kshs.50,000/- when he is spending millions at the expense of the other person.

Thank you.

Com. Prof. Okoth-Ogendo: Thank you very much Commissioners. I think there is

broad consensus on the principles of opposition which is here, which is that, there needs

to be a certain amount of control over the media, to the use of money and machinery that

the three arms as the Americans would call it, in the context to the election process, and

that does not resolve the question of what we are going to do when we discuss the media

as the media. This is, we are talking here in the context of elections. That is the first

point. I think the details of what that control is and the extent to which it should go

matters, but I think ought to go into complimentary legislation.

Secondly, I think there is broad concern that when we make recommendations of this

kind, we should try as much as possible to isolate those principles that ought to go into

Constitutional text and those that ought to go into complimentary legislation. A lot of

those are coming out here, but, taskforces would help the draft people and us if some of

these were isolated so that later on when we do a compendium of complimentary

legislation, we are able to see this a lot more clearly.

And finally, I think what we are deciding here, does not prejudice what we may decide

when we deal with the substantive matter when it comes again, and I have said that

previously, but I think we should remember that when we come back to the media, as a

media or the use of money or machinery, we should not then say that in elections, we said

we should limit them and therefore there are no rights, when we are discussing on their

own. So, we have to keep our recommendations, we have to remember what we have

recommended in their particular context and not views of context to prejudice

recommendations that might be made earlier.

I think Mr. Chairman, that then means we are through with point 9 and I hand back the

chair to you on election observation. Thank you.

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Prof. Yash Pal Ghai: Thank you very much Prof. Ogendo. So, while we have

recommendation 10 which deals with election observation. Any comments on that? Yes,

Zein.

Com. Zein: Chair, when we had the workshop with the Election Commission of Kenya,

my understanding was, they were drawing a distinction between observation, monitoring

and evaluation. And they were saying that, they will not allow anybody in Kenya to be

involved in monitoring and evaluation, but they will allow somebody to observe. And, I

wouldn’t like to suggest that maybe we need to, when we are discussing this particular

issue, to see if we can find a common ground between observation, evaluation and

monitoring. And, then reconcile with what the Electoral Commission was saying.

Secondly, that the question of rules which will generally govern common practise or

standards by all observers, and then secondly the accreditation process of these observers,

and then thirdly, what would they exactly be their mandate? Will they only be measuring

compliance of the different actors in an electoral process to the election law or will they

have more effect including that what they observe can be used in a court of law as a basis

of evidence when somebody petitions. So some of these for me, are some of the

fundamental questions we need to deal with.

And more importantly, draw a distinction between local mechanisms for observation,

monitoring and evaluation and then also draw a distinction between what happens to

what, worth the output which they bring. Do they find it through the Electoral

Commission or do they make this public? At what point can they make their findings

public? Just after elections or can they raise questions of compliance during the election

process itself. Thank you Chair.

Prof. Yash Pal Ghai: Raiji.

Com. Raiji: Thank you Chair. I am alarmed at the position of the Electoral

Commission, that they may not want to have the process which is critical in the

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functioning well and democracy monitored by independent Kenyans. I think that is all

the more reason why there should be monitoring. I think it is important probably, maybe

at this stage alle we need is, to say that in principle, that we agree that the observation and

monitoring of elections, and public evaluation be carried out, and then the details can be

worked out in legislation if necessary. But I would imagine that, since this is a public

exercise on which a lot depends, then it is absolutely necessary that we have independent

observers, particularly because, in the case of malpractise, and we have witnessed very

many in the past, then I think it is the Electoral Commission itself which is on the spot,

and which is normally made a party to the proceedings. So I think it is absolutely

important that in principle, and I don’t think anybody would disagree with that here, we

allow monitoring and observation of elections by local and even international observers.

Assuming that they are carrying out, or we are carrying out a clean election in accordance

with the rules that we have set for ourselves, I don’t think we have anything to fear even

if the whole world came to watch. Thank you.

Com. Lenaola: Thank you Mr. Chairman. Com. Raiji said that no one should disagree

on putting this in the Constitution. I wish to say that I am not for election observation,

and monitoring to be in the Constitution. The reason why we ask monitors and observers

to come, is to confirm that elections are fair and that they are conducted within the

framework of the law. And, that duty to conduct elections fairly, we are going to put in

the Electoral Commission, their duty is mainly to observe so that if at all they should

appear anywhere in the entire legal setup, it should be within the law, the statute not

within the Constitution. So, I don’t think that is very important, that probably in the

Constitution.

Prof. Yash Pal Ghai: Nancy?

Com. Baraza: Thank you Mr. Chairman. I think this will touch on the role of civil

society in public affairs, including elections and in the Constitution we should recognize

that role. I don’t think it should only be restricted to legislation, we should recognize it

as a principle in the Constitution.

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Then as to the necessity of election observation, monitoring and evaluation, I think it is

necessary, at the electoral process workshop, we didn’t have a representation from IED,

and they did evaluate to us the benefits that they feel have come out of their role in

election monitoring and observation, and I think we should recognize that, and have a

principle that will be effected. Thank you.

Com. Maranga: Mr. Chairman, in order to ensure that there is free and fair elections,

election monitoring and evaluation is a necessary requirement, and Mr. Chairman, I want

to go further and say that, the reports from the monitors or from the group monitoring the

elections, should be able to be availed to the Electoral Commission. So that, actually, it

can be used as a basis of taking legal action just in case there have been serious

malpractises. Mr. Chairman, this is one thing just to monitor, and observe and if you

evaluate and you don’t take action, then I don’t see the effect of that. So Mr. Chairman, I

hope that we will be able to give a way forward of ensuring that those reports can be

accessed by whoever, whether in the Electoral Commission or anybody we entrust to

that, so that they can take action on the various malpractises they have been able to see.

For example, Mr. Chairman, the issue of people using excess money without being

declared, these are the kind of people who can be able to let us know. So I think it is

something which should be recognized in the Constitution. Thank you.

Prof. Yash Pal Ghai: Thank you. Prof. Kibira.

Prof. Kibira: I think, Charles has said what I was going to say, and I just confirm that I

think they will be need to recognize the principle and the importance of the monitoring

the elections and I think the rest of the details are as either as said, you know what is

going to the legislation. But I think the principle must be there, and individuals and

groups both national and international should be allowed to monitor the elections. I think

it is one of the ways of ensuring that we maintain the international standards.

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Prof. Yash Pal Ghai: I don’t want to say any of the various support from the proposals,

I think every proposal, we need to consider and a draft we think can help us, what should

go into the Constitution and what should go into the legislation or regulations. I think we

have a general agreement and we will look into a draft prepared for us. Thank you very

much.

(some question from one of the Commissioners which is far from the mic hence

inaudible….. in the Constitution?)

Prof. Yash Pal Ghai: No, I think what we will do is that we acknowledge a general

right of people to be able to monitor and observe, and leave the details in the legislation.

Com. Hassan: My concern Mr. Chairman is the fact that election monitors are people

who owe their allegiance elsewhere, and there is no way the country can have control

over them or hold them responsible or irresponsible for these polls, which may be

misleading or something. So, we need to look both sides of the coin and see, if we are

holding elections, we have independent Electoral Commission responsible and

entrenched, I don’t think we have sudden huge fear that elections will be irregular, and if

we do then, it will be the responsibility of the Electoral Commission to be pinned by the

Constitution. Because, election monitors and observers are people who owe their

allegiance elsewhere, whose controls are not related to the interests of the nation. So we

need to be worried of that.

Prof. Yash Pal Ghai: Are you thinking in terms of foreign observers, monitors or…..

Com. Hussein: Yes.

Prof. Yash Pal Ghai: I mean, many of the monitors of course are national, they are not

international, but they are also international.

Com. Hussein: Yes, they are.

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Prof. Yash Pal Ghai: So you want to make a distinction in the Constitution or lobby in

the……

Com. Hussein: Something, if we really have to put that in the Constitution, there must

be that distinction.

Prof. Yash Pal Ghai: Okay, let us hear more views on this. Nancy and then Zein.

Com. Baraza: Mr. Chairman, I think Kenya is part of the international community, and

is kind of devout itself with the general practise around the world. Election monitoring

and observation is an exercise which is being accepted internationally in most countries,

and I don’t think we can isolate ourselves and say, those are foreign. I think if we can

have regulations to ensure that what they are doing is within acceptable international

standard, Mr. Chairman. I will be worried of isolating Kenya from the larger

international community.

Com. Zein: So, I will start by saying that, even when we are isolating things for the

legislative framework, we must isolate the issues. One of the issues clearly, the role of

international or foreign observers or monitors, evaluators, call them whatever you want to

call them, and the local ones.

Are they going to have the same role? Are they going to have the same jurisdiction? If

we are going to say, allow part of their findings to be the basis for measuring compliance,

even by the Electoral Commission, are we going to listen to both international and local

ones, but also there are fundamental questions even for local ones. Are there going to be

national statutory standards of independence for instance? Can anybody create observers

and monitors? For example can a political party sponsor an observer organization?

These are some of the questions we need to ask and, in the legislation, there have to be an

accreditation process which is fair, which is independent, and which ensures the fairness

and independence of the monitors.

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For instance, if there are a million applicants to be observers, either individual capacity or

as corporate bodies, who is going to be allowed in, under what basis, and who is not to be

allowed out? How does this affect the mechanics of body at a polling station? If you

have 50 or 100 observers, so there has to be a balance between allowing, in fact I would

say that, I agree that observing is a right, but it should be seen as a restricted right with a

lot of conditions to it. Thank you Chair.

Com. Prof. Okoth-Ogendo: Mr. Chairman, I have a feeling that we don’t want to say,

in the new Kenya Constitution that elections must be monitored, if we think that there is

value in monitoring and observing that. You don’t want somebody to come here and

find the Constitutional reference demanding that elections should be monitored. I think

the whole process of monitoring elections is like…. the international community is

saying, we don’t trust you, unless we come there and find out what you are doing. I

think we should concentrate this kind of recommendation on strengthening the Electoral

Commission and giving it powers to decide on whether or not, monitoring is going to be

done. But I would hesitate myself to create this kind of obligation in the Constitution.

Even if the value of monitoring and observation is considered.

Com. Kangu: Mr. Chairman, I would like at this point go back to what we are trying to

address. And in trying to identify the problem, I will go back to our ideology which we

said, it is republican and incorporates the question of accountability on the part of those

who administer the common power. Now, if we say we are going to rely on the

Electoral Commission, we need some mechanisms of accountability, of getting the

Electoral Commission to be aware that it is accountable to the people and that if they

don’t perform properly, somewhere, somewhere, is looking at them and maybe able to

identify the mistakes. So in my view, the basis for an observer to re-system a monitoring

system, an evaluation system, is the principle of accountability, the principle of

transparency and the principle of participatory governance. That should justify us to

have some little clause in the Constitution, I do not know how it will be framed, we may

not use the term observe or monitor, but we must find some phrase that can be used to

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say that the process of elections, the mechanisms of elections must be done in an open

manner that, infused in it, some accountability mechanisms.

And I would then say, the details such as what Com. Hussein has talked about, must be

reflected in a statute, in an Act of Parliament that will be able to say, do we accredit

foreigners or not and so on, do we accredit locals and so on, and what standards. We put

it so well or boldly, but we must set certain acceptable standards that people must satisfy

before they are accredited. And of course he went further and said, there is need to limit

the numbers and all that. All these things can be dealt with in legislation, but there must

be a little mention in the Constitution.

But then, another issue which we are not expanding all and I agreed, we have not brought

it out here, is the question of, when we talk of elections, none of us seems to be thinking

of the voting day, but elections are more than that. The registration process of voters is

part of elections, and it is for that reason that we must institutionalize the concept of

observation, so that in deciding we should observe, we are not going to take these bodies

who will merge to observe the voting day. We must see those who have capacity to even

observe the registration process, the preparation process, so that they are accepted. And

in electing, we still must have that principle and I want to plead with the members, that

having set out an ideology, let us try as much as possible to argue everything we do on

the basis of that ideology, let us try to sound everything we propose or oppose on that

basis of what we have set out.

Com. Hassan: Thank you Mr. Chairman. I think much as I hear what John is saying, I

don’t think there is no use in creating institutions or putting principles in the Constitution

as large. We should be able to see the outcome. Once for example to put that right into

this Constitution, the process of election monitoring, observation and evaluation, so what

next. Suppose those institutions which have got to use these rights, discover that there

are certain anomalies in the election process, what then next? Are we thinking of the

consequences? Are we giving a certain right, for example to institute….. are you

thinking beyond, just the election observation, monitoring and evaluation? Of course you

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tend to think that this is a self-serving standard that is only going to be there, and that

they going to say it is okay or not?

And then Mr. Chairman, if it is the same practise in the country, it is true that we have

international observers who come from other countries to come and observe elections,

but as Prof. Kabira said, most of them sent to our country simply because they don’t trust

us, they don’t trust that we are going to conduct free and fair elections, although the other

way is round is also true, in that, they sponsor people to leave our country and go to their

countries, especially the north, not very much to observe the elections there to check

whether they are free and fair, but maybe to study and to learn more about those who are

there. So, it is actually a two-way thing. But if that is the same practise, I don’t think

that the issue of election monitoring observation and evaluation has been in a

Constitutional provision, even I don’t see any compulsory experience here, but is that

also the norm? Do other countries also provide for this in their Constitutions? If not,

then why are you departing from the norm?

Com. Bishop Njoroge: Mr. Chairman, sometimes we tend to forget our history. We are

not working in a vacuum. We are what we are today, especially in terms of elections,

because of what people have done in monitoring the election. If we did not have

monitors, I am sure there are many areas which would have been quite privileged in

terms of electing the people they want in Parliament. If we say, because we are going to

have an independent Electoral Commission, we will not need monitors because the

system now will be for proof. I think we have over-reaching it. Why we need monitors

is to keep the Electoral Commission independent. You create an institution, create

something to help that institution to keep to its role.

I would urge the members to accept that this is a very important principle. It is a

principle we must uphold just for a few years, to make sure that in our transition, we will

be able to have a system founded on principle assistance founded on independent. Mr.

Chairman, there is no use of creating institutions which have no one check. The

institution of elections is checked by monitors very much. They are the people who will

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tell us what is happening in that right. They will raise the outcry and then, other systems

now will go into it. The same fact that we are worried that we are autonomous, we don’t

want people to interfere, the danger for interference are later but the dangers for leaving it

without election monitoring, and I would therefore recommend, we have election

monitoring and observation. But then, at the onset, make rules in a subsidiary legislation,

make rules as to who will be omitted and those are the principles they are supposed to

follow in their monitoring.

Com. Kabira: Thank you very much Chair. I wanted to build on what Bishop has said.

I think we have to remember our past in terms of elections, and at the same time, I

believe in ourselves as a nation and our capacity to be responsible to our people, but at

the same time, recognize that this is a process that has been greatly abused in the past,

and I think between wanting to be nationalists and believing in ourselves and then

recognizing the past, and the potential for dictatorship in the future, where again you lose

control and the Constitution can also be abuse and so on. I think we do not want to tie

ourselves to say, we do not want foreigners and so on.

I think, I would agree with Com. Kangu and Bishop that we retain the principle of

election monitoring as one of the checks to ensure that the electoral process continues to

improve and continues to be free and fair, and at the same time, like Com. Zein had said,

we develop those rules which we can change if need arises.

Com. Githu: Mr. Chairman we are creating institutions and framework, and no one is

saying that observation and monitoring is irrelevant, so that we don’t need it. But we are

saying that in the context of the Constitution, we must have institution framework. And I

don’t see it when we look at monitors and observers.

And two, to hold the report, when they finish their work, the make reports which they

publish to the world. When the effects of those reports in terms of the Constitutional

process, I don’t see anything. So, I think we should look at it in terms of the fact that,

there is already a body which is set up by the Constitution whose mandate is to conduct

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elections, and therefore that body must also regulate those who are coming to observe

elections. I have a system in now. And then, we must then think of what actually has to

be beyond, what happens when the observers and monitors have done their work? I

don’t see that the Constitution can actually create an institutional framework for these

observers.

And coming back the question of history, we know that in fact in this country, in the last

two elections, we started to say that observers have been reigned in by the rules that were

created. So the fact that they have been there does not mean that democracy will

necessarily enhance. Some of them were obviously very bad to certain sectors of the

electoral system. So, I think we should be careful and we don’t put every institution,

every issue into the Constitution. We all agree that this is a very important issue, but not

in the Constitution.

Com. Lethome: Thank you Chairman. I will begin with an observation. Com. Githu

seems to be the only Commissioner with a microphone for his exclusive use, I don’t

know why. (laughter) Mr. Chairman, after listening to my colleagues talking about this

issue of observation and monitoring, I couldn’t help asking myself, and I will answer

myself, don’t worry about the answer.

If monitoring and observation an end in itself or a means to an end. The answer is, it is a

means to an end. The end being, ensuring fair and transparent elections. How do we

achieve that? Do we achieve that by the mere fact that we have provided for observers

and monitors? I think we will achieve that more by providing for good electoral laws,

and then the kind of Electoral Commission that we shall have. So, I am convinced now,

and even after listening to colleagues like Isaac and Isaack, I think this is an issue that

will into the legislation, not into the Constitution. And in fact I was quickly, under the

table I was looking, I was trying to go through a Constitution of a country that I don’t

want to reveal here, and many other Constitutions, I think all Constitutions of the world

that exist today, that have provided for monitors and observers in the Constitution, I think

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this is an issue and we should not deliberate. And Githu, I urge you not to talk after me

please.

Com. Githu: Mr. Chairman, I will not belaber the point. I agree entirely with Com.

Lethome, and I am happy first to agree with Com. Prof. Okoth-Ogendo. There is a sense

in which when we put in the Constitution, we suggest that we are creating mechanisms in

which we have confidence. I think Mr. Chairman, the consensus has emerged. Please

let us move on.

Com. Maranga: Are you the Chair?

Com. Githu: I am suggesting to the Chairman that a consensus, you are within your

rights to suggest to him that there is no consensus.

Prof. Yash Pal Ghai: So, let me say there is a consensus, I think there is a consensus, I

think we all leave in the value of some monitoring process, I think it will light only on the

institutions we set up then. We are hardly sure they will do what they are supposed to

do, I think there is the broad agreement that, if this is effected in the Constitution, it

should be in a very minimal way, that it is a complex issue which requires standard rules,

system of accreditation, and those that get stern in the regulations or in the legislation, but

I would like to suggest that maybe, one thing we may need to come back to, to think

completely and as a separate issue, is the whole question of people participation.

People participation is one of the cross-cutting themes of the review Act, and it was

highlighted by Mutakha when he presented the republican idea. And I think we could

somewhere there have some formulation which would enable them if they wish to

monitor or we can use still the wording. But essentially, I think this matter will be dealt

with in the report in the first instance, and then maybe in the legislation. So, I broadly

accept Ibrahim’s compromise, and so perhaps those of you who have experienced this,

could formulate three-four sentences, it would go in a report as a guide to legislation, and

then we will see whether in the general statement about people participation, we could

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have some reference to that. Thank you very much. Thank you. It has been a very

useful discussion. Thank you very much indeed.

Eleven, which should be the Electoral Commission. Some of these issues did come up

when we looked at the general question of independent commission and independent

officers, but we didn’t deal with them conclusively as is not in the context of the

Electoral Commission, and I suggest we use this opportunity to firm up our

recommendations on the Electoral Commission, even though we may need to go back to

the 6th committee again. But let us use this, because it is relevant at the moment to go

through reforms proposed in Section 11, let us see if you are comfortable with that. I am

waiting for comments, yes. Yes, Dr. Nunow.

Com. Dr. Nunow: Mr. Chairman, the disadvantage of speaking first is that you have

no previous responses that may be part of the speaker’s response, but I would like to

comment on Bullet No. 2 where the committee talks of appointment following a short-list

mechanism. Who would be conducting this short-listing mechanism, and how would

those applicants be mobilized? Is it true gender advertisement, go somewhere and being

short-listed, it is not clear. We are just stuck at the short-listing point without preceding

procedures for inviting applicants and identifying the authority to conduct that short-

listing. Because, for me, that is where the impartiality begins. If one is not in the short-

list, then it means to really be left out at that stage. So, it is important to make it full

proof right from the beginning.

And I will suggest, that, it be by public advertisement, followed by an independent body

that will be receiving these applications and sorting it out by set criteria. Whatever that

detail will be, that is a detail that I would like to get into.

But in principle, I think the independence and the impartiality of the Electoral

Commission, being an issue that if long overdue, and obvious a point must be such that

they strengthen or reinforce that independence and impartiality. Because, at the end of

the day, an independent and impartial institution, in every sense of the world, financially,

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operationally, and name it, will be an upset and will add to researching its role. So I

would strongly advocate for principles that enhance the independence and impartiality of

the Electoral Commission. Thank you.

Prof. Yash Pal Ghai: Thank you very much. Next.

Com. Baraza: Thank you Mr. Chairman. I think I agree with this principle, in the

sense they would to go towards strengthening the Electoral Commission. But I just to be

clear, when we were discussing institutions under management of Constitutionalism, we

were debating, we were wondering whether it should be the office of the Commissioner

or a Commission. I don’t think we settled.

Prof. Yash Pal Ghai: Ooh yes, this one we will deal with it when we come to this, the

right for this.

Com. Baraza: Yes, okay.

Prof. Yash Pal Ghai: Do you have a recommendation?

Com. Baraza: No, Sir.

Com. Bishop Njoroge: Mr. Chairman, I think this is a very good set of proposals. I find

nothing useful to add. Say for this comment, that, I believe we should make uniform the

process of recruiting Commissioners to all Commissions. If we decide we want to invite

applications through the media, it should be for all Commissions. Whether it is the

Human Rights Commission; the Gender Commission; the Electoral Commission or any

other Commission. But it would be hard to justify treating Commissions differently.

That is my first point.

The second point is to reduce the Commissions. I think we have too many Commissions

in this country that are too large and unwildly and probably, affect their efficiency and

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performance, and I would like to be on record as endorsing probably the Electoral

Commission. I personally would say, seven Commissions.

And two last points Mr. Chairman, I agree that the power to resolve electoral disputes on

the spot should lie with the Commission. Right now, as you may have heard from many

people who spoke to us, a returning officer can refuse to accept favours, and unless that

candidate files an election petition, nothing can be done. I agree that the Ugandan model

is useful.

And finally, I agree and I think Prof. Okoth-Ogendo mentioned this yesterday, that

political parties would be a very useful way of resolving the question of political party

registration and accountability. At the moment, the Registrar of Societies who is an

officer of the office of the Attorney General, take that function with all the political

problems that, that entails. So, I endorse that as well. Thank you.

Prof. Yash Pal Ghai: Charles.

Com. Maranga: Mr. Chairman, I have a problem on the person who finally appoints

the Commissioners. My suggestion would have been maybe, the Speaker of the National

Assembly, because these people maybe will be under, I mean there will be so much about

the elections. So, Mr. Chairman, I hope, if you can consider changing the appointing

authority for that Commission, even when the members have been short-listed, vetted and

passed.

The other issue I want to raise is on the criteria for membership, which we are saying,

somebody should not include those having any recent active political party activities.

Mr. Chairman, that, I don’t know how you define that, maybe even if somebody was

campaigning for somebody in that active political activity, I really need the definition of

that, because, Mr. Chairman, there are people during election time, will be able to

participate in various political activities, and I think it is a right for every Kenyan to

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participate. So, if you are going to vet the people going to be Commissioners, I don’t see

why that point comes up.

Then, I also want to endorse the number of Commissioners to be 9.

Then the last point I want to comment on, in the last Bullet, where the Electoral

Commission may need to take over from the Registrar of Societies, that means the

registration and registration of political parties. It feels like even the group which is

recommending this issue, is not very clear on that. And Mr. Chairman, I want to propose

that the Electoral Commission should not deal with the registration and the registration of

political parties. It will actually take away that independence of the Commission. So I

think the registration of political parties should be undertaken by a separate organ. Thank

you.

Prof. Yash Pal Ghai: Raiji, Zein and Lenaola

Com. Raiji: Thank you Chair. This is true our committee had dealt with this one, and

we had recommended 8 – 10 Commissioners, but, like we did probably in the other

Commission. But Chair, on second reflection and following the debate that we have

been, first I am just wondering whether, this formula that, we should not dearly

standardize these Commissions, because the difficulty of course will come in, is that,

once we have very many Commissioners, then all manner of interest groups will start

requiring to be included, and that may not necessarily add value to the performance of the

Commission itself, because, in practise what we need is basically one or three person

Commission and then with no esteem of entrants recruited on merit, who can then

manage the day-to-day running of the commission, rather than probably included

bureaucracy of Commissioners who probably serve certain interests but may not

necessarily be qualified to run this Commission. I just wanted us to ponder over that.

Now, the other issue that over which we received a lot of recommendations, was this

question of the Electoral Commission being impotent to prevent the gross violation of the

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its rules of conduct that I noticed that the committee has quite rightly. I think

recommended that we give the Commission tips, and I think Mr. Chairman, that will be,

as a matter of urgency, we have seen violence, we have seen televised stealing of ballots

taking place in polling stations and the Electoral Commission says, I assume honestly,

that they are unable to prevent it, rendering the whole exercise futile. So, I want us to

consider other things, I think we also need to consider, and I would by so recommend that

police officers be assigned and be answerable to the Electoral Commission during, just

before, and immediately after the idea of voting, so that those officers will be answerable

to the Commission, and then they will be able to comply with the direction from the

Commission, because I think that was the problem why policing was very poor. Thank

you.

Prof. Yash Pal Ghai: Zein and Lenaola.

Com. Zein: Thank you Chair. This I think will be one of the institutions which we need

to pay a lot of attention to, both in terms of the principle managing free and fair elections.

But more importantly, because of our history as a people and as a nation, there is no

institution which demonstrates the principle of no trust in Kenyan institutions that the

institution of managing elections like that is the Electoral Commission. And we as a

nation have tried in various ways to improve the level of trust into this institution. Even

when the opposition parties agitated that the current Electoral Commission should be

expanded so that their interest and people we trust will be included. When the chance of

appointment came, people appointed not because some people have argued that because

of corruption or because of nepotism, but most of the people appointed, people who are

very close to them. The party leaders appointed either relatives or very close friends.

My suggestion is that, this was because of the low trust measure of the institution, and

they wanted to appoint who they trust. But that again brought the question of who are

these people answerable to? So, I think we need to think through this, and balance

between what principles are enshrined in the Constitution, and what aspect of the

legislation is then protected somehow. I remember when we were talking in terms of

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amendments, there were few procedures. Maybe this is what can fall under the third

procedure.

But in relation to the proposals which are being made, I would like to disagree with Com.

Maranga on the appointing authority. I don’t think there is any problem with the

appointment authority, so long as that writer there, is clear that the President who must

accept is the man who recommended. So, what they will doing is just putting a signature

to it. But if the President then has a right to reject a name, then I will agree with Com.

Maranga that, that right is not left with the President.

But, part of the problem I have with the proposals, they are the very detailed and this

copy is good, but the problem I have is that, in many places, it leaves too many things to

interpretation. For instance, he says, which already somebody has noticed, a short-listing

mechanism. I would like to know what is this short-listing mechanism and examine its

suitability in terms of, does it reflect the principle that we should build a high trust

institution.

Again, it says, not having any recent active political party activity – that is Bulletin 6.

What does that ‘recent’ mean? Is it 2 years, is it 10 years? That is a relative term. Again

Prof., aside from the points I am making, maybe it will be helpful for those who are going

to present papers later on and they have not printed them, to number these Bulletins, to

make life a little bit easy.

Again Prof., on Bulletin 8, I would say that the last sentence is an argue sentence, we

should just delete it. When you are taking about ‘too many Commissioners’ means that,

they begin to discharge and interfere in administrative parts which should be left to the

secretariat. I think when we had a workshop with the Electoral Commission, there were

better reasons given as to why we should have a small one, including, decision-making is

efficient, fast, and so on and so forth. But I would like to suggest that, the formulation of

restriction of the number of Commissioners be changed slightly, it should not read

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between 4 and 12, it should read ‘not less than 7’ and ‘not more than 12’ so that between

4 and 12 is amended in that version.

Again, I would like a principle that the Electoral Commission would have the power to

make rules. That principle I don’t see it included here, but a principle that the Electoral

Commission would have the power to make rules for the efficient and smooth running of

the election process, I would also like the principle to bar the holders of Commissioner of

Electoral Commission from seeking public office or elective public office for at least 3

terms from the date they ceased to be Commissioners of …….

(Interjection) Prof. Yash Pal Ghai: Three what?

Com. Zein: Three terms. Yes, if a term is 5 years, then it means 15 years. When we

kept on talking about, how do you raise the level of integrity of public officers, I

wouldn’t want an Electoral Commissioner who makes rules which then he goes and

benefits from in a term or two terms, maybe 3 terms and that principle is not here.

Again, in relation to vagueness of terms, he says, Commissioners should be persons of

proven integrity, that is the 11th Bulletin, the last one. Commissioners should be persons

of personal integrity, proven good behaviour and conduct, good measure of service to the

public. In one instance, we are requiring that holders of public service to have a

certificate of integrity from the National Commission of Integrity, but we are not

requiring that here. I wonder why not. We can’t have double standards.

Response: It is already in Bulletin 4.

Com. Zein: That then should be linked with 11, they don’t need to appear separately.

But more importantly Chair, a good measure of service to the public. How do you

quantify that? Is it in years?

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(Interjection) Prof. Yash Pal Ghai: That is a general principle, thereafter, quantify the

general directive to the party authority to give you effective……..

Com. Zein: I understand that Prof., but I am saying in relation to when we are making

legislation, maybe, we should be more firm. Just in relation to that Prof., just an

observation, that it was glaring that when we had a joint meeting with the Electoral

Commission, that suddenly I realized that the Electoral Commission is made up with a lot

of respect, very many old people – old men and women. There was not a single person

who you could say was relatively middle-aged or younger person. They were very old,

and that to me informed me why they are very conservative. Thank you.

Prof. Yash Pal Ghai: Well, I don’t think that is what it is. Lenaola?

Com. Lenaola: Thank you Mr. Chairman, age is better, but just a number, but of

course we saw that. Going to my issue, I am not sure myself how we can link

appointment of these Commissioners with the present devolution, because independence,

impartiality, diversity in this Commission must reflect the structure of the State. And

so, I am not sure myself whether if it is at that point, but I think it is an issue that I think

we should address.

Secondly, on the qualifications of the Commissioners, I think, well we have put the

principles, I am not sure what Kavetsa’s committee decided on the appointments, but I

think we should follow from what they did. On the age, on the education level, on the

service to the public, I think we had discussed that, we should follow what they had done.

And lastly, I think this is now the correct place to ask the Electoral Commission to

facilitate the work of monitors and observers.

Prof. Yash Pal Ghai: Thank you. Prof.

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Com. Prof. Okoth-Ogendo: Chairman, several general points. When we were

discussing Prof. Kabira’s report, it occurred to me that we were talking about the three

general types of commissions. The first group were the Complaints Commission, and

then what we might call Advisory or Regulatory Commission, and the third group

Administrative type Commissions. The distinction I was making here, was that, some of

these categories of Commissions, particularly the Administrative Commissions, the one

that administer I think. And it seems to me that discussion here about the Electoral

Commission is that they should administer election, and anything that is not directly

concerned with administering elections as and when they are due, or to go to somebody

else, for example, the de-renuation of constituency boundaries could be taken away from

the Electoral Commission and give it to somebody else because that is something that has

to be done as and when it is due, but when election are cleared, they manage it, they put

into features. And I had suggested then and I want to suggest now without insisting on it,

that the administrative type of Commissions could be converted into Constitutional

offices.

So rather than having an Electoral Commission, you could have an Electoral

Commissioner as an office. What we are now as a Commission, still has a very large

bureaucracy. You might only want to have a Commissioner with the same bureaucracy

as increase the efficiency of the Commission. And I would want from the draft people to

see an alternative formulation, instead of an Electoral Commission, an Electoral

Commissioner. Some of the other Commissions, the compared Commissions, you may

need several people in there because of the nature of the work that they are doing, the

regulatory Commission, like the Integrity Commission and so on, you may need

Commissioners rather than just a Commissioner because of the nature of the work they

are doing. That is my first point that we should consider. Where the functions are purely

administrative and is positive, instead of having a Commission, we might do well with a

Commissioner. That is the first general point I want to make.

The second point, I agree with those who say that the pertinent procedure for all

Commissioners, whether they are Constitutional offices or part of a Commission, they

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should be standardized, because, we have as we are saying, that those Commissioners

carry the same kind of level of seniority across the board, and I think we need to

standardize this in some form, and of course two ways of standardizing it, one is to write

it into the job description or rather the description of each Commission or to have a

section that deals with methods of apartment of statutory Commissions, and that could

apply to all Commissions. So you don’t have to write that in every section that which

deals with the Commission.

My third point is that, I think we should avoid the possibility of giving Parliament

executive functions. We got to skip the doctrine of separation of power very clearly.

When we were talking to members of the public and they were saying, the President

shouldn’t do this, Parliament should do it. The question I always ask them, “are you

giving that recommendation because you trust Parliament or because you distrust the

President?” And the other only four, that they distrust the President, and they are looking

for somebody else to perform these functions. I think we want to keep the separation of

powers clear, but also have checks and balances.

I would leave with Parliament vetting what the Executive does, but not Parliament being

used to perform executive functions, which is what has been happening here. And

therefore, I will not agree with the suggestion that the Electoral Commissioners should be

appointed by Parliament. But, I would not mind Parliament checking the appointment of

those Commissioners by the Executive, because, administrative functions are executive

and they have to lie with the Executive. Thank you.

Prof. Yash Pal Ghai: Kabira, and then Salome. We will close thereafter and have a

break for tea.

Com. Kabira: I think I will skip what I wanted to say much earlier on has been said.

Prof. Yash Pal Ghai: Salome?

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Com. Muigai: Mr. Chairman, I would like to thank Hassan through you for his

suggestion, but I still have one little thing to add, and that, that is that Kenyans kept on

telling us time and time again to have a smaller Commission, that they wanted a

Commission, at no one point were we told having a Commissioner in all the places that

we went. Maybe it is a new notion that Kenyans had not thought of, but they did not

suggest that.

I would also go along with Parliament vetting, whatever the President appoints, because

that is what Kenyans told us all over the country. There were a few times when they said

Parliament was to take up the powers of nominating Commissioners. But, by and large,

the general consensus was that, whatever it is that whatever appointment the President

did, Parliament should vet them. Thank you.

Com. Wambua: I entirely agree with what Salome has said. In fact that is what I was

going to say, that, with the suggestion that, unless we have good reasons, Mr. Chairman, I

think our draft document should reflect the wishes and the will of the people. That is

what the Review Act mandates us to do. And unless we have a very good justification

why we want to do either an ethical group or not, why we should do it or not do it, and

therefore, I support the suggestion that there must be a Commission. Kenyans said, we

should have a small number of Commissions, and the number I think which was

acceptable was 10. 10 is a number which I think we can deal with and maybe, we should

take that number 10, and I don’t think there were any suggestions that we should

currently as constituted, we should remove from them the powers to deal with boundaries

of constituencies. I think also that never came out in the few categories of Kenyans, and

unless we want to give specific recommendations in the Constitution, as to how the

Electoral Commission should deal with the issue of boundaries, and maybe then we give

them the guidelines which are in the Constitution, I don’t think we should remove

entirely from the their docket, because, they have already institutionalized that system of

conducting the review of boundaries, and everything else.

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So to try and create a new institution which is going to do this work again, it seems to me

to be a little bit not useful. But maybe, we should leave it to the Electoral Commission,

but now we work on a very good framework. Thank you.

Prof. Yash Pal Ghai: Thank you very much. I just like to make one or two comments

then I suggest we have a break for tea and then when we come back, we can quickly

make our decisions, give chance to talk over this matter during the matter. I only have

one or two comments.

I don’t think there is someone who is having a common procedure for appointment of

Commissioners, but we also must recognize that, Commissions are different in the

functions they have to perform. So, we can’t be too rigid by one way, maybe, to have the

ultimate appointment by the President, but the President has to act in accordance with the

rights given by a particular body, in this case, it would be the Integrity Commission. We

could say, let us go to Parliament for comments and then it goes to the President, so, there

is need for some standardization but we must accept and recognize the different

functions the Commissions do.

I think the idea of having a Commissioner is important to some respect, you will notice in

the paper that I distributed but we haven’t discussed, I have suggested certain functions

should be vested in a Commissioner or in any Director, but I believe in this particular

case, for reasons sub-committees have given, we should have a Commission, even if it

could be a small Commission. I think to put everything on the shoulder of one

Commissioner is going to be difficult, he may not find a person who is acceptable

probably, so I think a Commission, then, has a kind of balancing.

Then, I think I agree with Com. Lenaola, this idea of putting in the facilitation work of

monitors, as one of the responsibilities of the Commission. On the boundaries, it is true

that some countries do have separate Commissions for boundary making and for

elections, but given our history that these functions have been performed by the same

body, you will not always if you look at the history of electoral system in Kenya, it

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wasn’t always the case, it has been the case for some time, I know that the Electoral

Commission has built up enormous database of population, topography, they now have

the …… (inaudible) and the knowledge to do that, so perhaps, agreeing with us, I think

we could start living with them.

But all these are my personal comments, and I suggest we come back after tea, also to

some of these points, of what we omitted, basically I just believe that they were prepared

on the basis of existing laws and these are improvements. So, depending the points you

make, are pre-covered by present legislation, and so, they were not touched on here. But

maybe they will help in serving in the reports so that, they either kept or reinforced.

But what I would like to do when we come back is to go through as we do one by one,

and then make our decisions. So let us say about 15 minutes, maybe 20 minutes to our

break and then come back please. Thank you.

AFTER BREAK

Prof. Yash Pal Ghai: As I suggested before break, probably we could go through these

bullet points, some of them need to be brought together, but I will try to indicate that. So

the first bullet point is, it is a matter of drafting, just to emphasize that the Commission is

independent and impartial. It hasn’t by itself tried to emphasize the nature of the

Commission.

And the second one, on the question of appointments, I think the way to go might be as

follows: to indicate that the Commissioners should be persons of….. then we can look at

the bullet points, Next page, should be persons of proven integrity, good behaviour and

conduct, just for the appointing authority, skip that in mind, I see the difficulties then

raised, but I think we can leave it. The general guide, then we would say that

appointment will be made by the President in accordance with the recommendations of

the National Integrity Commission. I use the word ‘adviseingly’ in accordance with the

recommendations. In other words, it is binding on the President, and after the President

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has appointed, then the names will be proved by or given for vetting to the relevant body

of Parliament.

So, is there anyone proposing or any comments on that? I see Prof. Kabira has one.

Com. Kabira: A point of clarification. The last time we were discussing the same issue

of the committee of Parliament, the question was raised as to we had assumed that the

relevant committee will be there or whether they need to discuss it, I don’t know, under

Parliament I am not sure.

Com. Prof. Salim: Thank you Chair. I think what you suggested is agreeable to me,

but the order gives me a bit of a problem. I thought if the President makes the

appointment, then that should be the final point of the appointment process. Therefore,

the problem at present with appointing in accordance with the recommendations of the

relevant committee of Parliament. But the relevant committee of Parliament does vet the

list of the short-list of the Commissioners with the potential Commissioners. So that,

whatever list they pass, rather than having the Parliamentary committee to vet after the

President has done the appointment, I think that order then needs to be changed.

Otherwise, I think the procedure is agreeable.

Prof. Yash Pal Ghai: Yes, I see your point. Prof., I have been troubled by that, now I

see, it is a problem, but I am happy to go along with your suggestion and so by the time

the list goes to the President, it would have been approved at both levels. Zein.

Com. Zein: Thank you Chair. In relation to the vetting procedure, where people use

Parliamentary committees or legislative committees to vet individuals. It is a vetting

process where the person is welcome and then asked questions, and normally what

happens is that, the committee makes up a decision. If it is a majority decision that, that

person is suitable, then it is taken forward. But where there is disagreement or the

committee feels they cannot support that person, in some countries, then the name is

brought forward to the whole house for voting. In others, it is then deemed to have failed

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and that is the end of the procedure. So, I don’t know which one we are proposing in

terms of voting procedure.

The first one is normally when the committee is agreeable that is a suitable person, the

names goes forward and accepted. But in the case where the name is disagreed, like for

example in the American context, when the name is disagreed in the committee, there are

two choices. The name can lapse or the name can go forward to the whole house for

voting for or against. So I am saying, I don’t know which form…..

(Interjection) Prof. Yash Pal Ghai: That is a good point. Let us hear Okoth.

Com. Prof. Okoth-Ogendo: Mr. Chairman, I was just going to say that, all we need to

do, is to say that, it is subject to the approval of Parliament. Then Parliament has its own

procedures, as has been explained by our colleague here. It will go before the relevant

committee. If they reject, that is the end of the matter. It may go to the whole house for

debate. If they approve, they should report to the whole house and then it is approved by

the whole house. Because in the committee, you have the various elements of the house.

So, if they agree, then it seems as if we will….(inaudible). So, we should say that with

the approval of Parliament, then Parliament will take its own procedure.

Prof. Yash Pal Ghai: Okay, well, there seems to be consensus on that. Thank you Prof.

Okoth. So, the next one is the financial independence of the Commission, I take it that

the general principle we have approved anyway for Commissions. We should have a

counting officer……

Com. Kangu: Sorry, maybe to save time, we were saying that we have discussed all

these things, and there is a consensus, then members can single out those they think are

contentious then we leave it. So that will save time.

Coms.: (inaudible exchange of views by Commissioners)

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Com. Kangu: ……. for 3 terms. But what we have here is about, they should serve in

the Commission for 2 terms. So those are two issues.

Coms.: (inaudible exchange of views by Commissioners)

Com. Zein: Com. Kangu has captured what I said, but the point which I think needs to

be clarified Prof., when I say these things are missing, you said some of them are in the

current Constitution. My understanding when we come to proposal like this, is to assume

that the proposals which are here, are the ones we deal with. Or am I to assume the

proposals which are here are those to include those which are already in the current

Constitution.

Prof. Yash Pal Ghai: Well, maybe Com. Kangu could respond to that, but if I mention

your point briefly just before….. okay, let us have Bishop and then you can crown that.

Com. Bishop Njoroge: Mr. Chairman, the Commissioners, the Electoral Commission

will be offering a service to this nation. We should not penalize them for being

Commissioners, by saying they cannot stand for elections for 3 terms. I would rather say,

for 1 term, because 5 years is a long enough time. Let us not penalize them, remove them

from what is rightly theirs, but I would like to reduce that to 1 term.

Prof. Yash Pal Ghai: Views on that point? Charles, Salome and Zein.

Com. Maranga: Mr. Chairman I will also go the way Bishop has suggested that we

have 1 term, because, if one has come to an end of his term, let him stay out for one term

and then the other term which follows, he can run if he wants to run. And it is not

always that all Commissioners are going to run for election. So Mr. Chairman I think

one term is adequate.

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Then Mr. Chairman I also want to draw your attention that there was one point here

which I raised about the criteria for membership, which should be spelt out. I don’t know

whether you have dealt with that, because now you are on the other side of the paper.

Prof. Yash Pal Ghai: Well, what we have done is that we have approved this in

principle, if anybody has an objection they were supposed to raise that.

Com. Maranga: Yaah, there is an objection that this one should not go as it is.

(Interjection) Prof. Yash Pal Ghai: Which one?

Com. Maranga: Criteria for membership should be spelt out, and should include not

having any recent active political party activity. Mr. Chairman, that is ambiguous as far

as I am concerned.

Prof. Yash Pal Ghai: Yes, I wonder whether…

Com. Maranga: I suggest that should be deleted.

Prof. Yash Pal Ghai: It should not be deleted, it is ambiguous. It should be clarified if

it is ambiguous. So, could the drafting team think they can give us some formula for

that? Yes, Prof. Okoth.

Com. Prof. Okoth-Ogendo: We are talking about this requirement the persons who

have had, have been recently involved in active party politics should not be eligible and

the question is, we haven’t defined this and we haven’t defined the activity and maybe

the principle itself is questionable. We are wondering that….

(Interjection) Prof. Yash Pal Ghai: Active political participation, if there are no people

who have actively participated in party politics, if you are working mates?

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Com. Prof. Okoth-Ogendo: Yes.

Prof. Yash Pal Ghai: Would you be able to draft something we can look at then?

Com. Prof. Okoth-Ogendo: Ooh yes, we will do that.

Prof. Yash Pal Ghai: Okay, look at that carefully then we will come to that. I have lost

my list now that…. let us try again. Salome, Zein, Ratanya. Then let us wind it up

because, basically, I thought we had agreed everything and …. Yes.

Com. Muigai: Mr. Chairman, I would like to agree with somebody who has said that

the Commissioners in this Electoral Commission have served Kenyans should not be

penalized for it. Having said that, I would also like to appreciate that this is a special

Commission that makes rules for elections, and they should be very objective in these

rules. So, although maybe 15 years is too long, but I would also like to think that we are

looking at people who will not be making rules for themselves and to benefit from them.

So, maybe, we can have a compromise on 2 terms – 10 years.

Com. Zein: Chair, I think as a principle, we should uphold that anybody who is willing

to serve under Constitutional office must be willing to have some of their rights restricted

as a consequence in serving in that Constitutional office. Maybe after assuming office,

within 3 terms.

But having said that, I would like to say this, that why did I say three terms? It is not

only that you can benefit from rules, because if we are saying the Commission will have

the right to make rules, or the Commission will have the right to oppose legislative

changes that you can benefit from the actions of yourself, but also two things:-

i. The perception of the people as to your independence in making those

proposals, having in mind that there is always a potential that you can run for

office; and

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ii. That when you leave office, there are certain structures which you will have

established including senior personnel in that Commission, who will be

known to you, who will deal with you differently from the way they deal with

others. So, I believe that 15 years, if a term is five years, is the save clause to

deal with.

If there are those who wish to run for office, let them not take the

responsibility to serve in such an office. Let them run for office. Thank you.

Com. Bishop Njoroge: Because already, he has made his position, he can’t make a

position again on that, Mr. Chairman.

Prof. Yash Pal Ghai: I think there is only one person who made a proposal to react to

others. So, please……….

Com. Zein: Point of order.

Prof. Yash Pal Ghai: I am going to give it to Issack first and then……

Com. Hassan: Mr. Chairman I think there is a lot of abuse and misuse of the word

‘point of order’, and I think you should curtail this abuse, because, you people really, in

the case of ‘making a point of order’, then that makes it excessive argument and even re-

opening other debates. So I think if somebody wants to ‘make a point of order’, we

should first define ‘point of order’ in the first place before you can go into it. (laughter)

Prof. Yash Pal Ghai: I gave Isaac the floor. Please make your point.

Com. Hassan: I was making that point so that you could disregard or dismiss the other

‘point of order’ raised and allow me to make my substantive……

(Interjection) Prof. Yash Pal Ghai: Is your point on the same issue?

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Com. Hassan: No, I wanted to make an independent……

(Interjection) Prof. Yash Pal Ghai: Can we just resolve this question first about

disqualification for 2 or 3 terms?

Coms.: (inaudible talks by Commissioners)

Prof. Yash Pal Ghai: 10 years is fine. Thank you.

Coms.: (inaudible talks by Commissioners)

Prof. Yash Pal Ghai: Please, can we all be quiet. I am not going to give the floor to

you Zein because you will have chance before we wind up this matter. So, Charles,

please take no more than 2 minutes. Charles, we know your views, I don’t think you

need to express them.

Com. Maranga: Okay, Chair, you know my views ….

Prof. Yash Pal Ghai: Yaah, you don’t want any disqualification. Okay, Ibrahim you

are going on the tenure of ten years …..

Com. Ratanya: Mr. Chairman, I have not given my proposal, but before I do that, the

point said by Hassan about these ‘points of order’, before you allow that one Mr.

Chairman, that is to your discretion, and you see what actually should be a ‘point of

order’ or just a point, to mean ‘a point of order’. So, why don’t you go round and get all

those who have something new to say, and then when finish, you come to these ‘points of

order’, ‘point of information’, whatever point.

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Now, Mr. Chairman, my proposal this question of terms, for me, I would propose that we

give 1 term of six years. We should not tie or link the term of Parliament to the term of

the Electoral Commission. If the term of Parliament is five years, let us head that end….

Com. Yash Pal Ghai: No, that is a different measure. We are discussing the period of

this clarification to stand for public office of the Commission.

Com. Ratanya: Mr. Chairman, I think it was 1 term. We were considering whether it is

10 years, 15 years.

(Interjection) Com. Yash Pal Ghai: Yaah, we are discussing for how long that this

clarification should apply. We are on a different point.

Com. Ratanya: So, my contribution was on term, but 6 years by rotation.

(Interjection) Com. Yash Pal Ghai: We have agreed that point. I don’t want to operate

I am sorry, you should have raised it earlier. The question we are discussing is only one

question, which is this clarification will be for 10 years or 15 years, and Zein said that he

would accept 10 years.

Com. Prof. Okoth Ogendo: I am not right Sir that you summarize correctly when you

say it is 10 or 15, because the issue is still open, and I was to suggest, again, we must

have a principle that runs throughout the Constitution consistently. Yesterday we spoke

about not being punitive. If we appoint Hassan to be a member of the Electoral

Commission at 35 years, we are then saying, that for 10 years thereafter, he cannot stand

for public office, by which time, he will probably, the most productive part of public life,

in my judgement, if we are not to be punitive, we must keep going back to, what are we

trying to protect. We are trying to protect the Kenyan public from individuals who use

their official capacities to skill the democratic process.

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Five years in my view, since the man retired or the woman retired from an office of a

public nature, is more than sufficient. To go to 10, to go to 15 years, you are now saying,

choose whether you want to be a Commissioner or you will ever stand for public office.

The majority of the people will say, since I want to keep my options open, I don’t want to

tie 10 years of my life.

Prof. Yash Pal Ghai: Zein, I have to rule. Please make your comment very

subsequently.

Com. Zein: Chair, two principles. The first principle is in relation to what the Bishop

raised, and I think it is something which we need to isolate. I disagree with him, with a

lot of respect, that if somebody makes a comment in the general terms of what is missing

in a section, then they have to give up their right to expound on that position. I totally

disagree with that, and I believe that if somebody talks in general terms about an issue,

they still have the right to speak as to the substance of that issue. That is the first

principle.

The second principle, Chair, for me is that, I will accept two terms. I will be reluctant to

accept one term, but if the majority feel it is one term, I will go by it.

Prof. Yash Pal Ghai: I feel the majority feel five, but, John do you have ……… I

think we can move on. I am glad to have a discussion, but I believe it is my discretion as

Chair who I allow and I will keep those points you have made in mind when I may to

session, so, if you can leave it to me. Thank you very much.

Com. Kangu: So, Mr. Chairman, the other point Zein had raised and before I go to it, I

want to agree with him that the mechanisms of securing consensus is through persuasion,

and so Zein is right that someone makes a point subject to the Chairman’s discretion,

should have an opportunity to persuade the others to see his point of view.

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But the other point he has raised was about what is in the current Constitution and what

should go into the report. And I think that raises the question of whether we are going to

amend the current Constitution or we are going to write a new Constitution. We need to

be clear on that, because the mistake we are going to make is to say certain things are in

the current Constitution, and yet the draft we are going to come up with, ought to be

supported by the report that we prepare. And my position will be that, if the approach

Prof. Okoth-Ogendo who I think is good at this jurisprudence, is that, if we are going to

make a completely new Constitution, it should be relevant that certain principles are in

the current Constitution. We must reflect them in the report, so that our report covers

everything and can be able to support what goes into the draft that we are going to make.

Prof. Yash Pal Ghai: Okay, thank you very much. I think we have noted the point Zein

made, and we make sure they are reflected in our report and instructions for drafting.

So, I don’t think we quite agreed on the last bullet point, about the registration of parties,

and I would suggest we take it when we discuss a paper on political parties, because I

believe there is some suggestion on that.

I am also going to suggest we leave for the time being, ensuring smooth and orderly

succession till we have looked at the systems of government. Because if we do go to an

element of Parliament system, it may be two points of succession. One for the

Presidency and one for the Government – Prime Minister. So, let us come to that when

we look at the systems of Government. That takes us to point 13, which begins actually

on page 12, and is this gladly acceptable? Yes, Isaack.

Com. Hassan: Mr. Chairman, it appears to me that, the first recommendation is one

that….. (end of side A)

I think you know this very well, these are the rules, about the service of petitions. I don’t

know why we need to do service petitions in the Constitution, unless…..

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Prof. Yash Pal Ghai: I suggest, I think your point is fair, but I think since this has been

a controversial issue and we have received submissions, we can note it in our report and

make a recommendation for legislational regulations, but I think we need to raise it in

the report.

Com. Hassan: Also Mr. Chairman, the issue of …. I know there have been a lot

submissions on this from Kenyans or organizations. I gave the issue of the timeframes on

service of petitions, and when again it should be heard, because, sometimes, these matters

have been referred to court, and the MP is still in Parliament, yet a petition is still going

on, and you find that he may have finished three years of his five-term before he is

reached. I mean, this renders the whole process of settlement null and void at the initial.

So I think we should also fix that minute.

Prof. Yash Pal Ghai: Yes, that is a good suggestion, we will note in the report. Githu,

Raiji, Zein.

Com. Githu: Mr. Chairman, I am afraid I don’t agree with Hassan on this point. One

of the worst areas of Judicial misconduct in the history of this country for a long time was

in election petitions. And John you have done election petitions, I have done election

petitions, it is an area of tremendous mischief, yes, and abused at several levels.

Another level, it is in the unilateral amendment of election regulations by the office of the

Attorney General without reference or notice to any person. In 1997, the rules were

amended as to service without notice to anybody to require the now controversial

personal service. So, with the absurd situation today, that all a persons needs to do who

is elected to Parliament, is to disappear for 30 days. Take a holiday, and where he

cannot be found. Now, I have been against writing details in the Constitution to deal with

historical mischief.

On this question, however, Mr. Chairman, I feel:-

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a) The Election Code should be well provided for in the Constitution. Because

in my view Sir, it may very well be at some point, that we would like to link

elections being such an important subject with the Supreme Court, if we

decide on a Supreme Court. That is one.

b) We must secure fundamentally in the Constitution, the manner in which, in

not very detailed Sir, election results must be announced by a certain time, a

petition may be filed by, I think it will be necessary to set out the number of

people who can question the election within a wherever, and the results are to

be published in the gazette, and to be deemed to be notice, so that we may

deal with that matter. But I can assure you Sir, the number of people at

Bomas of Kenya who will be passionate about Judicial misconduct in this

regard are very many.


Com. Raiji: Thank you Chair. Two points:-

i. I entirely agree with Com. Githu Muigai, but I would rather add, and this is

maybe, is one of the issues we may have to …. not only on petitions but I

suspect in other Bills, where a substantive right is given by the Constitution,

but the manner of enforcing or enjoying that right is left to legislation which

gives varying according to the political climate at the time. This is one such

incident.

And I think well as you may not want to deal with details, because the whole

fundamental basis of citizens’ rights to vote and citizens’ right to offer himself

for elections, is governed by whether or not the fraudulent election can be

permitted to take place by manipulation of the rules. And I would go further

and say that we must write it in the Constitution, that the Code of the Tribunal

as I will be pointing out shortly, shall deal with the matter without regard to

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technicalities or procedures. Because these are the doors that are abused

persistently to nullify the Bill of Rights, to prevent people from challenging

elections, by all manner of misconduct. And it is no reason, at least I have

seen no evidence so far, that this practise, given a small lawful will not

continue in the future.

ii. Secondly, Prof. Okoth-Ogendo said, everything is on the table, we are writing

or rewriting a new Constitution. I think it is also time for us to see whether or

not, the courts are the proper medium for resolving these disputes. Would

you for example appoint a dock tribunals to deal with that one, within say, the

given 3 months or 30 months and settle the criteria? Something like that? I

have not fixed views on that, but I think, it is not an unusual requirement,

because the problem is that the codes and the procedures that as presently

constituted are likely to be constituted even after amendment, such that,

knowing the speed at which calls to work and their key system that they

follow, we will probably not be able to get rid of the concern that Com.

Hassan has raised.

Prof. Yash Pal Ghai: It is Zein, Mutakha, Charles.

Com. Zein: Thank you Chair. This is I think the fifth time since we started

deliberations on reports by Thematic Groups, where the question of limitation of

Parliament law-making, establishing mechanisms that will protect people not only for

Constitutional entrenched provision or Constitutional provision, but also on simple

legislation has come up again. And I think we will need to return to this matter when we

are dealing with the powers of Parliament to Laws, vis-à-vis some of the fears which are

being raised. Once we do that, then we will be able to know what are the level of

protection for each provision that we are recommending in the Constitution. That is the

first one.

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The second point, Chair, I believe that the paragraph falling under the 3 rd Bulletin, should

not be left, I don’t know, is that a recommendation, is that an observation, but I suggest

that it should be a bulletin to formally saying that we should explore the idea of

establishing mechanisms without having to recalls to Judicial review.

Thirdly Chair, that I agree with Com. Riunga Raiji and Com. Hassan, the first point

which he said, people made a lot of submissions in terms of how expeditious cases or

petitions needs to be heard, but agree with Com. Riunga Raiji that we might need to be

creative in establishing transitional mechanisms or temporary mechanisms after the

elections, to deal with petitions within a prescribed period of time.

And then, lastly Chair, on the 2nd Bulletin which says the court could consist of 2 rather

than 3 Judges, I don’t know what are the arguments there, but my feeling is that, with a

majoritarian panel of 3, you allow for both clear direction by court, as well as minority

decent in the findings of the panel without going into the problem of when you have a

dual or 2 members, then whose judgement will take precedence. Thank you Chair.

Prof. Yash Pal Ghai: John and Charles.

Com. Kangu: Mr. Chairman, I would like to follow up what Com. Zein has said, that

the picture I am getting is that we might need a substantive section when dealing with

Parliament that addresses the question of subsidiary legislation or delegated legislation.

Because what has happened in our country has been that the rules committee in the

process of making rules or purpoting to make rules, they actually amend the substantive

legislation or the Constitution itself. And in this election’s case, that is what has

happened, when they say that they limit the period within which service has to be

secured, they are changing a Constitutional provision that says, that a party shall not be

condemned unheard which forms the basis of service. That you cannot be heard unless

you have served the other party and brought it to court or shown that you have tried

without success, because the circumstances in which you can be heard without service,

are in fact for grant of limited orders.

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But what has happened in the election area is that, you now can defeat the entire

proceedings, by merely saying, I was not served within the limited time. So, we will

need a section that will clearly…. it may be saying what ought not to be said, but I think,

given our experience, we might have in the Constitution to clearly state that subsidiary

legislation shall not in any way amend the current statute or the Constitution. It must be

within the meaning of the current statute.

And then, two, which we haven’t put here is the issue I have always talked about of the

election court, having jurisdiction to report anybody guilty of an election offence. I will

want that clarified in the process of making the Constitution, because that again has been

abused, because, when a court is seating as a court of civil jurisdiction, it cannot again

purport to exercise criminal jurisdiction. And given our past history, we might need to

clarify that in the Constitution or we should frame the Constitutional provisions as to

avoid that window that has allowed that to happen. Thank you.

Com. Maranga: Thank you Mr. Chairman, the first point I want to draw the attention

of the members is that, this proposal is based on the basis that maybe we will continue

with the current system of government. Mr. Chairman, if we are going to devolve power

to the people, you might find that we might increase where the petitions are going to be

also. My view that the petitions should be at the district level rather than provincial, and

you might also find that the mechanisms we need to develop to address those issues

because you might be dealing with more people maybe than expected.

So, I think Mr. Chairman, the way this section is drawn up, I don’t think I am happy with

it. It needs to be re-drawn, so that again we can discuss it, because Mr. Chairman, we can

approve the principle that this petitions are very important because sometimes there is a

major delay. For example, Mr. Chairman, it will be nice if all petitions are dealt with

before members are sworn in, so that, when somebody becomes a Member of Parliament,

there is no more petition or anything. So, I think we need to give a period, and we need

to give special courts, whether they are going to be …. (inaudible) courts or whatever,

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like my brother Githu suggested, that we might have those courts which are dealing with

petitions there and then, and also maybe reduce the period when people can complain. I

think this section, as it is now, we might not be able to make very concrete decisions.

Prof. Yash Pal Ghai: Yes, Nancy.

Com. Baraza: I was concurring with Charles.

Prof. Yash Pal Ghai: John?

Com. Kangu: Yes. Mr. Chairman, just following on what Com. Maranga has said, we

might need to link this to the provision we have already discussed about holding elections

before the lapse of the incumbent Parliament. And probably, we might need to expand

that period so that we leave a period within which disputes are settled before the seating

Parliament lapses and the new one is sworn in.

Prof. Yash Pal Ghai: Yes, Githu.

Com. Githu: Yes, Mr. Chairman, again for the draftsman to consider. I know that the

Court of Appeal in Tanzania has struck down legislation requiring a petitioner in an

election petition to deposit a certain amount of money in court. The Court of Appeal in

Tanzania said, the intention of that kind of requirement is to reduce the number of people

who can complain, it is unconstitutional.

I think we must entrench, somehow, the right of a citizen or voter to file an election

petition and put it beyond the reach of Parliament to water down that right by making

regulations on service or deposit of money or any other requirement that has the effect of

taking away the meaningful right of a citizen to challenge an election. Sorry to repeat

that, but I think it is important.

Prof. Yash Pal Ghai: Ibrahim.

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Com. Lethome: Mr. Chairman, maybe as a way forward, I would suggest that for the

purposes of the Constitution, as a Constitutional provision, we just say that, election

review shall be handled in the manner provided for under the relevant party. Then, the

result….

Coms.: (inaudible interjections)

Com. Lethome: Just hold on, can you protect me Chair…….I wanted to say now,

provided that, then we address that fear that is being expressed here. The main issue here

is that, they delay, they take long. So we give that provision. Then the details, and Githu

said the … (inaudible) is in the detail, …. (inaudible) to the legislation.

Com. Githu: I think with tremendous respect, Ibrahim Lethome has missed the point

entirely. The mischief in this country is that, it is in the amendment of the statute and the

regulations that the election process is subverted. And I was talking about, in this

country, there was not a single successful election petition after the 1997 elections. Over

30 election petitions were dismissed on the basis that there was no service. Service is not

an issue of the Constitution, it is not an issue of the principle Act, (hang on Sir), I am

saying it is not an issue raised by the Constitution, it is not one that is raised by the

principal Act, it is raised by regulations made by the rules committee, capriciously on the

27th December, with the election on the….. we want to put all these beyond the mischief,

either of the law officers or the crown or of the Judiciary or of any other person.

Prof. Yash Pal Ghai: Or the Republic my …

Com. Githu: Or the Republic for that matter. So I am happy to go with your provisal

that elections petitions shall be heard expeditiously, and then add what Com. Raiji said,

without undue regard to technicality and in any effect, no legislation shall interfere with

the right of the vote to question an election.

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Now, I don’t propose that, that is the way it should read, the draftsman will know what to

do. But we must put it beyond the reach of mischievous bureaucrats or mandarins in the

sectional office or in the Judiciary.

Prof. Yash Pal Ghai: I just want to check with Ibrahim if you are happy with this

formulation.

Com. Hassan: Mr. Chairman I think Dr. Githu must first get permission from the Chair

before he can interrupt, because I had the flow, but because the microphone is very close

to him…….

(Interjection) Com. Githu: I apologise.

Prof. Yash Pal Ghai: I am glad you said that. Githu you have to exercise…… I know

you are posing with ideas but I think…..

(Interjection) Com. Githu: I apologise.

Com. Hassan: Mr. Chairman, I think the microphone should be taken away from

his…..(laughter). It is very close to him.

(Interjection) Prof. Yash Pal Ghai: Okay, let us listen to Isaack please.

Com. Hassan: I was going to follow up on the right of the complainant – the people

with complaints. I think, what I agree with what Dr. Githu has said, we should not try

and limit the individual right to complain and also petitions. But also I think there is a

need to seclude that right. You are very much aware of the existence of the Vagarious

Litigation Act, which in a way also tries to limit the vagarious litigants from going to

court every on very flimsy reasons and try and pop down the Judiciary. So, I think even

in the election petition, after elections, there will be so many people who will be

disappointed, including from the losers of the election itself, the supporters and those

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who are funding the candidate. There will be so many people who are going to be

unhappy. So we should be able to give that right to complain, but I think it must be

limited, that is why I don’t think that the issue of, for example, people being paid in

court, in the requirement of service and all those vagarious are necessary, and they are

not necessarily going to undermine the rights. I think we should start it in such a way

that, we also guard against giving vagarious litigants who are going to bring every kinds

of people’s justifications and complaints in court.

Having said that Mr. Chairman, I think the election court, instead of setting up a new

institution, while it is very attractive, the arguments by Com. Zein and my colleague

Com. Raiji about giving it to another institution altogether, I think the common norm in

other countries and also in this country has been that, usually it is done by the Judiciary.

a) That the courts are entrusted to do this work, and although the High Court has

been occasionally considered an election court, we may want to maybe set up

either a separate election court which is going to deal with elections, or

b) We can even ask the Supreme Court, because, usually the Supreme Court deals

with great fear a matter, it would seat as one, whether it is 5 Judges or 7 Judges

or 9, they will see issues as one and hear that matter and decide that it that way.

But during election petitions, they may want to give it the jurisdiction to the

Supreme Court, but they can seat as 1 Judge presiding over one court in every

province for example, in the eight provinces, and hear the appeals, within three

months they are through with the elections and we are back to square one. Thank

you very much.


Com. Baraza: Mr. Chairman, being the ‘Guru’ of fundamental rights in this

Commission, I think I am taking the liberty to disagree with Com. Hassan. As we want

to give citizens’ rights, let us give them without putting too many limitations. I think that

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has dogged our current Bill of Rights, and we want to move away from it as much as

possible. So, I would advise that we limit our limitations as much as possible so that we

don’t delegate from the very rights that we are giving to the citizens.

Prof. Yash Pal Ghai: Well, I think that broadly we are in agreement with the

suggestions Githu and others have developed. We leave it to the draftspersons to see

that. I see courts have a kind of inherent restriction to prevent flipless, and we can rely

on them. Is that okay Sir? Thank you.

The next point is the limitation of constituencies. I think we have discussed at least the

principle that the Electoral Commission will be responsible for it. We have had

discussions on several occasions about the size of constituencies, and I think we should

deal with it now. This suggests that they should norm, and there should be deviation of

10%. We might need……

Com. Kangu: Mr. Chairman, if I make a few comments, I would like members to look

at this particular part in appreciation of the fact that, I personally would want it even

more refined. It is not well outlined as it is here. So, I will take their comments on that

basis and they should be aware of that.

Prof. Yash Pal Ghai: Hence, I am going to say myself that 10% deviation, I mean will

always be suitable in any greater degree of deviation. But greater degree of deviation has

to be justified, because I believe we have two kinds of situations. We have some

constituencies with small population, because the population is very dispersed and there

are very good reasons for that, and I believe there are some which do not have that

problem and yet tends to be containing a small electorate, so I think the two different

situations that we have at the moment. Yes, Isaack.

Com. Hassan: Mr. Chairman, personally I even went back to the main document of this

report to try and understand what you meant by the 10% deviation from the norm, and

how much that will relate on the ground. But maybe the convenor will want to explain

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that to us. But I thought, Mr. Chairman, that the current legislation as provided for in the

Constitution of Kenya which we have today is very much adequate as far as this

particular ……………. (inaudible) is concerned and maybe, we should consider retaining

that, subject to of course the fact that we have now introduced the MMP to cater for the

other variations, I think we should retain the current Constitution provisions which is also

a retention of the independent Constitution, actually there is no much difference from

what was agreed for at independence, and I think there was lots of reasons why that was

done, there has been a lot of negotiations and debate on that, I for myself will not be

agreeable while I understand the justifications to the fact that people have caused all

others, all constituencies should have the same number of people.

While that is true, but again, this country is different into different regions, and then, even

like in Nairobi for example, Nairobi is the capital city of Kenya. The fact that it has more

people than other parts of the country, we are not just because there are very many people

here alone, but because it is the capital city of the country, all the government offices are

here, all the industrial offices are here, all the courts are here, people who come to this

place are pulled from all other parts of the country. Even people from North-Eastern

Province, from Western, from Central are just coming to Nairobi. So, because Nairobi

has got 3 million people, it doesn’t mean that, that is where the people come from, and I

think we need to be very clear as to the population numbers.

And, when it comes to registering voters. Registering voters, Mr. Chairman, we have had

very many complaints from pastoralist communities. That:-

i. During census, they are not even counted all of them. So, that is just about the

problem which is encountered. If we only go to the watering point. I myself

have been involved in the population census of 1998, and I know what we did

in the province. We went to water points, to just wait for the people to come

and register them. We didn’t bother to go to the authorities, I mean, there was

no communication, there was no time for it. So, number one, if the census

itself, the number for example in North-Eastern Province I think, the

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population now is 1 million. They state almost a million, that is not the

government figure today, but they are more than that, because no proper

counting was done on the people. That is the first one.

ii. The fact that there are 280,000 registered voters, as compared to 1 million

population, itself is very suspect, because how can you have a large number of

population and then you have a quarter of them registered as voters across the

province. That is the second point.

iii. The other is the issuance of identity cards. Pastoralists have again complained

that you know very well that the complaints we have received in the

community, where they are allegedly, there are only antelopes and wildlife,

and not very many people. That they have not been given opportunities to

acquire identity cards because of discrimination and marginalization. They

don’t get the ID cards, and you can’t be registered as a voter without an

identity card. So, again in the issuance of ID cards, we have a bigger

problem. In Wajir for example, we were told by the area Member of

Parliament, there were 3,000 youths who didn’t have ID cards, and who are

still in school. And in fact, I think the reports are paid up advertisements in

the paper. It is just three months ago, where they listed their names, same as 3

pages of the nation was bought by those people to show that, this is the

number who are missing identity cards, and that is only those who could

afford to come to town or list their names and send their petitions.

The fact that we try and justify the existence of processes in these provinces,

does it mean that there are also other un…. (inaudible) pictures which are

being covered up? If proper census was done, if proper registration of ID

cards was done, I think the either ……………… (inaudible) could as well be

equal ……. (inaudible) as other parts of the country. But my conclusion is

that we should as much as possible retain the current status.

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Prof. Yash Pal Ghai: There are a number of issues raised. Some we covered yesterday,

but we agreed on continuation principle that administrative procedures will not deny

Kenyans a right to vote. I think it will be very useful if Isaack and others could do a very

short paper on how we need to modify the electoral system to deal with pastoral

communities. If this could be done in the next day or two, I am sure we will endorse that

and see how we can give effect to that.

But now coming back to this general point about the size of constituencies, I have three

names, and then, I am going to take more, Zein, Nunow and Okoth in that order,

Com. Zein: Thank you Chair. This I think raises a fundamental question of principle

which will affect other aspects of the Constitution. Reference is made to what the people

told us. And I would suggest that, this is one of the issues which in my opinion, forms a

contentious issue. It is related to devolution of power principle, it is also related to two

principles, one, of voters choice and the other one, of legitimation of government.

But more importantly, there are some of the issues which have been raised by Com.

Hassan, and I will go back to a principle which I said, if it is not dealt with in open forum

like this, I would wish to raise it as a special issue.

Firstly in relation to census and how reliable and valid are figures prepared by the

National Census. We know in this country census have been contentious issues, they

have political connotation, and I would like to suggest that they must be a Constitutional

provision to protect the procedure of arriving at national figures of both census as well as

economic factors and indices. But that is something we can come back to.

On the other point is this, that this matter is so important that people raise issues and says,

it even has led to people rejecting government programmes, and they quoted a Minister

who made instructions to ‘my people’, he said, ‘my people, ignore this business of family

planning’. If numbers of people are going to matter as to how the Government is going

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to be constituted, run and national resources shared, then ignore family planning.

Because that is the question of number of issue of people who matter.

Thirdly Chair, that it brings to the foul the arguments for or against a particular

ideological position. There are those who have come to us and said, in reference to what

Prof. Ogendo said yesterday, that when you are dealing with the issue of how big a

population should compose a constituency, you are counting people not elephants. And

yet, it can be demonstrated that the majority of the people who have expansive land and

fragile economy echo-system, for example, the North-Eastern region, parts of Rift

Valley, Eastern Province, Coast Province, that, if you are required to represent the

interests of the people there, you are also required to represent the interests of those who

don’t have voices, which includes the so called elephants, which includes the echo-

system. That is the new position which people are saying that the echo-system, if this

echo-system has a balance over the whole country, then the person who represents such a

constituency has an even added responsibility to the nation. And that is not taken care of

by working on logistics, and saying we can access logistics. It doesn’t solve the problem.

Again, in terms of delimitation of constituencies, my feeling, I know Chair you said

maybe it has been sorted out, my feeling is that, you don’t leave this to the Electoral

Commission, because you said we will come back to it. So a good reason which is, the

Electoral Commission’s core business is to apply and run elections and make sure that

they are free and fair and that process does not require a lot of value judgement. But the

issue of delimitating constituencies, in some cases, require value judgement. And this

value judgement have winners and losers in the history of this country. You have

competing interests, even when you are familiar with the size, competing interests in a

constituency and people have been making noise to use and say, ooh this constituency

was taken this way or that way, and people form long-lasting impressions and attitudes

towards the Electoral Commission. And we don’t want to allow that to happen. That is

why it is I think a good idea to support Prof. Ogendo and say, maybe you want to leave

that to another aspect.

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And lastly Chair, my convenor says something. Can….

Com. Prof. Okoth Ogendo: I was commenting.

Com. Zein: Ooh, okay. But, the last thing Sir, I say that this matter will not be resolved

completely without dealing with the aspects of devolution, be they vertical, horizontal, be

they of nature of an institution by cameral or uni-cameral, we will have still to come back

to this matter, and if I may make reference to the American dispute, the Convention was

almost torn apart on this very question, until a middle ground was suggested and adopted

which took care of the interests and the peers of combat. Thank you Chair.

Prof. Yash Pal Ghai: Nunow next

Com. Nunow: Thank you Chair. I think I would like to start by saying that, I entirely

disagree with the recommendation brought by Com. Kangu with all due respect. Com.

Ahmed mentioned that we have a population big as the basis for the limitation of

constituencies. But he forgot to mention that we also had that population should not by

any circumstance, be the basis for the same. And that, the other factor should take higher

priority, even if population becomes one of them. It should not be first in the list of

determinants for that process.

Mr. Chairman, I think we need to understand the basis for population concentration. One

of the issues that a concentrative population in various points is the availability of

resources, infrastructure and social amenities. These were highly skilled and if you

deliberately saw by independent sensitive government. And therefore, almost 40 years of

independence, has created rules of population who are attracted to specific amenities

created using national resources, which is a contribution of all Kenyans through the

circulation process which in itself pays a discriminatory approach. And now taking that

to be the basis for giving constituencies, in my opinion, it is worth and already

misconceived and unfair process, which is a process of unfair governance.

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Having said that Mr. Chairman, the committee mentioned that MPP could be a way of …

(inaudible), I would entirely disagree with that again, because, MPP entirely relies on

political parties to prepare a list. In this country, we have a history of winning parties or

parties with potentials to win totally disregard areas that they feel they have no support

completely after and including Constitutionally enshrined rights of development.

And now to come to say, they will nominate people from such areas, I still dismiss the

point. So, we should rely on MPP. What it does should be an additional bonus if ever

they wake up to the reality of the situation.

Registration of voters and processes of census have well been covered by Com. Ahmed

and Com. Zein and I would not want to repeat. But I will only add that census has been

conducted and numbered completely to reflect something political direction, and to

convey specific political messages. So, in my opinion, the most shamble and reliable

census in history of this country since independence was conducted in 1989. Most

reliable, this was also six years later, in 1995. So that it could well be doctored and be

released in time for election to reflect …. (inaudible) numbers. Now, that is how far

census can go. So it is not an option or a reliable process that we can count on.

The fragility of eco-system whose…. (inaudible) some of them being unique completely

endangered, some protected and …… (inaudible) as for in the dry land of this country,

and the dry land are the most sparsely populated, well, a one person for 5sqkms. But that

person is entitled to representation and national democracy that say, the few people don’t

deserve to be represented. Whether you are 1 million persons or 1 person, you are

entitled to representation. So, since democracy is the basis on which we are building this

Constitution, we must ensure that every individual in this country is entitled to

representation not withstanding the national assess being rampant in this particular areas

of highly …… (inaudible) eco-system.

So, my recommendation would be, Chair, that we respect the principle of equity in terms

of political representation. Meaning, that every Kenyan is entitled to representation

irrespective whether he is alone or there are a million people around. We must recognize

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that when we are tempted to correct the past imbalances by distributing the resources

equitably although not equally. Not equally because, of course those areas that had

already agreed to the benefits need to be slowed down for others to catch up with them.

But representation is a core issue that cannot be now added to those who have and those

who don’t have should remain as they are or keep crawling. So my recommendation is,

we must make distinction between urban and rural areas. We must get definition of what

constitutes an urban area and what constitutes a rural area, and we should have an

differential approach to delimiting constituencies in such areas because the problem and

the circumstances indeed defer. We will be missing the point if we try to create a

uniform basis for delimiting constituencies. Thank you Chair.

Prof. Yash Pal Ghai: Thank you. Okoth?

Com. Prof. Okoth-Ogendo: Mr. Chairman I am not trying to take issue with the

quality population censuses that we have conducted in this country, if at all the reason

that I have been a member of a census committee once, and for 9 years chaired the

National Population Council of this Republic. But the point I want to make is that,

clearly, what we heard and what makes national sense is that the principle for the

delimitation of constituency boundaries are population and geography, not population

alone, those who argue for population alone have this impression that they will get more

seats than others, and therefore they were using some very prerogative language when it

came to the question of geography. But I am convinced in my own mind, that

population under geography must be the principle. That is point one.

Point two, I think we must lift that principle from the Electoral Elections Act to the

Constitution, so it becomes a Constitution principle. At the moment, it is a discussion

exercise by the Electoral Commission, but I think we must lift that and put it in the

Constitution so that it becomes a Constitution principle. And I would like to draw the

attention of this taskforce to the submission that was made by Hon. Godana in his

constituency and he is the only person I heard who made a very specific submission on

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this point. He had a written document, and he had a comparative presentation on what is

happening in Canada and in Australia and the parts of the Soveik Union, where this

principle has been used.

The third point Mr. Chairman, I want to say is that, if you look at the statistics, and I said

this yesterday but let me say it again. The average Member of Parliament in Marsabit

District, covers 20,000 square miles, even though the population per square mile in

Marsabit District is 40,000. The smallest area covered by an average MP is Mombasa,

which is 58 square miles, even though the population is 160. Nairobi is 87 square miles,

even though the average population is 260. We cannot be blind to the fact that where

geography is such a distinguisher of representation. That we have to ignore it and then

end up, for example, with the whole of Marsabit District being one constituency.

Because what you will have is in fact the whole of Marsabit District in terms of the

statistics that I have in front of me here, would be smaller than Embakasi Constituency,

and then we are going to say that the whole of that District should only be one

constituency. I don’t think. I think it flies in the sense of reason, it is discriminatory and

you cannot expect Members of Parliament to cover it, particularly, since that

infrastructure itself is so bad.

Maybe 100 years from now when the population distribution of this country is more

sensible, we can move towards population as a prime factor, but I don’t think this is

something that we can do at this stage.

And finally, Mr. Chairman, the public didn’t give us guidance on how to proceed. They

talked about what the minimum, but first of all they divided the country in terms of

population, and said, in certain areas, no constituency should exceed a certain number. In

the semi-arid and arid areas, they divided the country in terms of the maximum acreage

that a Member of Parliament ought to cover. I would like this particular committee to go

into that data and see what the public is saying. They are saying that a constituency

should not have less that so many people and as far as geographical term should not

exceed so much, and I think in North-Eastern, in terms of size, they were talking about a

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maximum of 10,000 square miles which is still much much larger than the average

constituency in Mombasa. But all these suggestions are in there.

So, in summary, Mr. Chairman, I would want to see geography and demography into the

Constitution, not at the discretion of the Electoral Commission. And then the Elections

Act can play around with the minimum and maximum in terms of geography and

population. Thank you.

Prof. Yash Pal Ghai: I believe the principles are in the Constitution but they need to

be re-formulated. They are in the Constitution. Maybe they need to be re-formulated and

we will…. conclusion of our discussions.

Com. Yano: Thank you Chair. I entirely agree with those ones who have spoken before

hand, that population alone should not be the guiding factor towards the delimitation of

the constituencies. I look and remember what we collected from especially North Eastern

Province, and parts of North-Rift. Actually the whole of North-Rift. These are areas

largely covered by the pastoral communities of this country, whereby as Com. Hassan

had already said, that the issue of population counting and census has not been

adequately done.

These are very large regions, and I always like looking back to Turkana District. I

remember I did extensive civic education in Turkana District. Turkana District is 70,000

square kilometers. It is like three provinces put together – Nyanza Province, Western

Province and Central Province, and in the whole of the District, there are only 3

constituencies.

I look at Turkana North, Turkana North is about 37,000 square kilometres and almost like

2 provinces put together with only one Member of Parliament. The complaints that these

people raised majorly, were that historically, there has been lots of unfairness in terms of

governance, and that is why they were complaining about infrastructure, we could even

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see it for ourselves, no proper infrastructure, basic necessities were absent and all of it

was blamed on lack of governance or poor governance.

I also look at our mandate. Our main mandate or the objects and purpose of the review,

is to ensure that people participate in governance. And I think, it must reach a point that

we have to make very specific recommendations for some of these regions and we have

to be extremely bold, while making these specific recommendations. But it is not only on

population alone, we have to look at geography. Thank you Chair.


Com. Raiji: Thank you Chair. This is perhaps one of the issues where we received a lot

of recommendations. I think Chair, part of the reasons the public were mistaken, because

the thinking was that, is it based on population or geography alone? Whereas there is

broad consensus here, that it is actually based on several criteria – geography, population,

means of communication, that one is Section 42 of the present Constitution.

Now, I think the problem, there are two issues to be isolated. There is a problem of the

criteria and believe broadly the criteria is agreed – population, geography, means of

communication, population trends and so forth. But, the other issue that is tied to that, is

the application of that criteria, and if I heard Kenyans right, is that, the criteria was being

applied unfairly, capriciously and on purely political ground, coming sometimes to

ridiculous, that in reason of boundaries, within even a given district, in order to capture

certain people within a given constituency for temporary political advantage.

Whereas the criteria may not be seriously disputed, there is need to check whether or not

this criteria has been properly applied. I think if I recapture the spirit of the discussions

we had yesterday, I think we did agree that, because this is an issue that was debated with

a lot of passion, and since we agreed that, and I think it will be misleading to ourselves to

assume that Kenyans are satisfied with the present constituencies. Some feel that

particularly in the pastoral areas, they have too few constituencies, in fact, and the others

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from the more popular regions feel that they have also very few constituencies, and it is

an issue that has to be addressed, but I thought we had a broad consensus yesterday that,

yes, for the time being, for purposes of the next elections, we maintain the present

constituencies, and then we recommend that a sort of constituency review based on this

criteria, and if we actually agree that, then I will think probably, it may not be possible

for us, I think even that there is a lot of strong feelings among Commissioners themselves

on this issue, to actually now make a determination on boundaries, because, probably we

need a Boundary Commission, and there will be needed a lot of time and expertees in

order to complete that mandate.

And time to time, there was also the issue which, I may be corrected Chair, about

boundaries, I think yesterday or when we were presenting the other day, I thought some

people were not comfortable with the Electoral Commission conducting the boundary

review or something, I don’t know what we agreed.

Prof. Yash Pal Ghai: Well, I thought we had agreed that it will remain with the

Electoral Commission, but that issue can be re-opened, there is no reason why we

shouldn’t re-open that now if that is the general wish. But let us now go on to Mutakha,

then Charles, Nancy, Kabira, Githu, on my left Salome.

Com. Kangu: Mr. Chairman, I want to start by again saying that, as I said earlier, I

personally was still of the view of refining this particular area. But I want to talk about it

and try to capture what Com. Zein has said. Once again, in terms of the ideology we

have set for ourselves, we said that the people are central to the ideology we are going to

pursue, but that doesn’t mean that we be simplistic and say, we are approving population

as the basis. The centrality of the people we referred to, we said, is that Government was

introduced to serve the welfare of the people. The whole people, regardless of their large

numbers, or their small numbers.

So, when we are designing the factors, we will be looking at factors that will best serve

the people but not simply say, these are many, let them have more constituencies, and

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these are a few, let them have few constituencies, regardless of the circumstances in

which they live. What should drive us is factors that can give us effective service of the

people wherever they are. And we will be saying that if we are supposed to serve the

people and we said in our ideology, that ensuring the welfare of the people is facilitated

by proper management and distribution of resources, we will be saying, that even these

places in which there are a few people, as Com. Zein as said, there maybe need to

manage the resources that are there. So, we cannot just look at the number of people

there and say they are a few, they don’t need many MPs. We must also look at the

resources and their fragility as Com. Zein has said, and say that there is need to manage

those resources, because our business is to serve the welfare of the people.

Now, if we accept that ideology, we will be saying, Prof. Okoth-Ogendo is right, in

saying that we look at population, we look at geography, but that geography must be

understood, not in a narrow sense of just the size but also in the wider sense of the terrain

and the other climatic difficulties that are in some of these places. I know for a fact that

a number of people in places were suggesting, we can solve their problems by giving

facilities to their MPs to reach them. And I remember in one place, I asked people, we

are not talking about MPs reaching their people, we must also think about the people

reaching their MPs. If you give helicopters to MPs, are you going to give helicopters to

the people. When they wake in the morning and they feel they have a problem that they

need to present to their MP, will you avail a helicopter to them to reach the MP.

So, I will be saying and I said, we will refine this. The factors must be population,

geography, difficulties, the ecosystem involved, the infrastructure that is in place, both of

nature and of human development. There are certain factors that are attributable to the

natural climatic conditions, but there are other factors of infrastructure ……..

(Interjection) Prof. Yash Pal Ghai: John we got your main point. Thank you.

(laughter)

Com. Kangu: …. of infrastructure that go to the past development that has taken place

in our country and then going back to the mandate as Com. Yano has said, our mandate

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in which we have reflected in our ideology is equitable distribution and re-distribution of

resources.

Prof. Yash Pal Ghai: Charles, please be brief. It is getting to lunch time.

Com. Maranga: Thank you Mr. Chairman. I want to agree on a number of issues:-

One, all those who have suggested we need a specific criteria on how to make up the

constituencies. But Mr. Chairman, as I want to agree with Com. Raiji, yesterday we had

approved a point that we are going to stick with the 210 constituencies and 90 seats for

proportional representation. But Mr. Chairman, this issue of constituencies is very

contentious, and I want to put it under the same category as the boundaries of districts,

boundaries of provinces, land issue, and even ethnic minorities.

Mr. Chairman, in some areas where we went, there are some ethnic communities who felt

that they can never give a Member of Parliament if they remain still in the same

constituency with the other ethnic communities. A very clear case is in Trans Nzoia,

where we were told point blank, that, the Sabaots will always want to have their own

constituency, because the Bukusus always outnumber them. So, I think that is a clear

case where people say, if one of the criteria is geography, population and so on, that

maybe another diversity which must be added is ethnic communities concern or even

minorities for that matter.

So Mr. Chairman, I am suggesting that, we can take affirmative action on areas,

especially North-Eastern where they have been left behind and other areas, but Mr.

Chairman, it might not be possible to resolve this issue in this Plenary, but I am

suggesting that either we recommend a very special Commission to deal with all those

outstanding issues, including the demarcation of constituencies afresh, but meanwhile,

we can agree with that principle, and then, maybe, agree to set up that Commission to

deal with all those issues.

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Mr. Chairman, we have the facts and we have the views of Kenyans. Otherwise Mr.

Chairman, this is not something which can be done in a month or two. Thank you.

Prof. Yash Pal Ghai: Thank you very much.

Com. Baraza: Mr. Chairman, I don’t want to take too much of the Commission’s time.

I do agree entirely with Prof. Okoth-Ogendo’s proposal, I happened to be with him in

some of those very difficult constituencies in North Eastern Province and Eastern

Province, upto north Moyale, and before I saw it for myself, I could easily have bought

the idea that constituencies should be dictated by their population. But having seen what

obtains on the ground in a constituency like North Hola, which is as big as Central,

Western, Nyanza and Nakuru Districts put together, and we did see for ourselves that the

MP has never even reached the few people, we think are few. He can’t, because of the

share size of the constituencies. And I think looking at also the difficulties in terms of

climate, and ecosystem, I think we should retain the principle of geography, demography

and population. I think we should retain that.

Prof. Yash Pal Ghai: Kabira?

Com. Kabira: Thank you Chair. I want to go back to the issue that was raised by

Com. Hassan at the beginning of this debate. That the discussion we have here is very

well reflected in the current Constitution. I thought that is what he had recommended.

And I have just been listening to the proposals, and if you look at the Constitution page

27, all those things are reflected in the Constitution. So, I think maybe we needed to just

look at what is not there, then recommend it, because, they are itemized and they are

clearly reflected. But I think the one issue that I don’t know how we will need to deal

with it, is the issue that was raised by Com. Zein, when we talk about population, we

have problems with the way we deal with our population, that it is not sided, etc. I don’t

know how we deal with that, but all the other issues that we are recommending here,

actually, appear in the current Constitution.

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Prof. Yash Pal Ghai: Githu?

Com. Githu: Mr. Chairman, I agree with those who say, that it has never been the law

of Kenya and probably we do not wish to make it the law of Kenya that constituencies

are based only on population. The law of Kenya has always been, that there is a multiple

criteria for the determination of constituencies, and probably the consensus here, is that

we want to retain the multiple criteria.

Having said that, I would like to agree with Com. Maranga that we probably do not have

the time here or even the resources to go into the details of what restructuring

constituencies in this country today would entail. And therefore probably the best way to

proceed is to suggest the draftsmen to give us some transitional provisions that may help

us to probably set in place a Boundary Commission, and there maybe several areas where

the Boundary Commission will be relevant. We heard from the people that they want

some provinces re-demarcated as it were, we heard some people say they want the

districts re-considered and we have heard from the people, that they would want

constituencies re-considered.

Probably the best way to go is to have a Boundary Commission recommended in our

transitional provisions, and they can deal with all that. But the Constitutional criteria, we

re-emphasize and are committed to it.

Com. Prof. Okoth-Ogendo: I think we want to be careful in how we read Section 42

of the Constitution. That section gives the Electoral Commission the discretion to

consider, the primary criteria there is population. And I think what I am saying is that it

should not be at the discretion of the Electoral Commission to do it. That this

recommendation is saying, the norm is population, which is what we have here. And

then there are variations. The argument I heard out there is that, the norm cannot be

population. All the things that are listed in 42 sub-section 3, A to F, are part of the norm,

and this is what I would like to see. I wouldn’t want to put back section 42 and think

that, that should be the problem. It has created a problem.

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Prof. Yash Pal Ghai: I think what I had said was that, at the end of this discussion we

should leave formally the criteria to go into the Constitution. But I think we have had

very good discussions, I think we have a consensus. The next person is Salome, you

have not finished?

Com. Prof. Okoth-Ogendo: Just to make an intervention which has changed my

submission. Section 42 as I understand it, proceeds on a logical and necessary

requirement of democracy. As I understand it, and Com. Kangu has told us about the

ideology of the State. If we are creating a democracy, the basis of a democracy, is one-

man-one-vote. There is nothing more whatsoever from the Commission proceeding from

A, recognizing that a democratic politics must be grounded on one-man-one-vote. Then

secondary, curing and Com. Zein should hear me on this, curing the inefficiency that may

result from a one-man-one-vote.

And Mr. Chairman, we have been through this argument before. Constitutionalism is one

principle, and democracy is another principle. Constitutionalism, if you would protect

me Sir, …..

(Interjection) Prof. Yash Pal Ghai: Yaah, please let us give the floor.

Com. Prof. Okoth-Ogendo: Constitutionalism does not require that we approbate

democracy. I am committed, as I am sure all the Commissioners here are committed, that

there should be no community in Kenya, discriminated upon or left out of the political

process on the basis of their numbers. However, it is one thing to say, we will recognize

and protect minority voters, and quite another to say, that we shall make numbers

subservient to geography. I think the rush…..

(Interjection) Prof. Yash Pal Ghai: Hold on, I think we have got your point. Let me

now ……

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Com. Prof. Okoth-Ogendo: …. democracy in the Constitution. On the other hand, we

are saying, that we have to take both into account.

Prof. Yash Pal Ghai: Please let me chair the session. I am going to call on Salome,

Bishop, and I am going to try to sum up. And it is already lunch time.

Com. Muigai: Thank you very much Mr. Chairman for recognizing me at long last. It

is….

(Interjection) Prof. Yash Pal Ghai: …… people who put up their hands, I am tired of

this kind of insinuation.

Com. Muigai: I think Mr. Chairman the problem with me and you is that, there is a

person before us. You sometimes are able to see me, sometimes you are not because

there is a human shield.

(Interjection) Prof. Yash Pal Ghai: Go on.

Com. Muigai: I think what we have in front of us Mr. Chairman, and has been is a

reality in Kenya is that, there are some areas that are densely populated and there are

some areas that are sparsely populated.

The other fact is the fact that, each person wherever they live, have a right to

representation. So, I find it a bit difficult to find this Commission sometime, arguing as if

we are in either or situation, which we are not. Our responsibility is I see it, is to ensure

that every member of this country is represented and is represented as effectively as it is

possible for this Commission to suit the mechanisms down.

I therefore think that we need to take both geography and population into account and

none of them has greater value than the other. I feel a bit sad when people are arguing

against the density in a population as if that is something we should be or people should

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be apologizing for. Those are facts, that is the way Kenya is. So we need to find a way

of getting from there to the reality as it is on the ground to where we are given a

responsibility to make a Constitution for everybody in Kenya.

I therefore would like to propose that, we take population…..

(Interjection) Prof. Yash Pal Ghai: Salome, this is not a sad conversation, we should

soon be over and then you can continue your private discussions.

Com. Muigai: We take population into account. We also take geography into account.

But we also look at the minorities that told us when we went into the constituencies, that

even if we take these two into account, they still will be left out. We need to find a way

of also bringing them into feasibility and representation. Thank you.

Com. Bishop Njoroge: Mr. Chairman, when we are doing this reflection, we must have

always in mind what the people told us. If we are not careful, there will be a tendency of

I as one from Central Province, maybe trying to fight for the rights of those people, and

that will be dangerous for this Commission. If we start that way, in that …..

I want to say, Mr. Chairman, that we are a Commission charged with the responsibility of

thinking out issues for Kenyans as a whole. Therefore, when we went to North-Eastern

Province, it was very clear that those people feel they are not well represented. One MP

is covering so large areas, that must be taken into account.

When we went to Central Province, people told us, they are not well presented, because

one MP is covering so many people. So, we as a Commission, charged with the

responsibility of Kenya, let us take the needs of pastoralists, then take the needs of those

with large populations. It is only through that, then we can come up with a Constitution

that can create peace. Therefore, I say, population and geography, and also I say, that we

must recommend a Boundary Commission to be instituted, to be able to come up with a

rationale basing on these two ideas.

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Prof. Yash Pal Ghai: Thank you very much. It seems to me that actually we have very

substantial consensus. Strucking points maybe different, but I think we are agreed on the

need to recognize those population and geography. And also, I think it is important that

we don’t get communities in the marginalized, they are neglected, that should also be a

fact to take into account.

At the beginning of this discussion, John had said that he would like with his committee

to come back to us with a new formulation, that what is in the paper wasn’t their final

considered recommendation, and I would like to propose that the committee could meet

even today, and on the basis of each discussion, give us a formulation. Because, I do

believe we are really not at all for our report, and I think we need to look at section 47

formulation. It does have all the ideas there, but the balance may need to be reflected and

we leave it to committee No. 2, and hope that they can give us their recommendations

today.

One other point which I like to dispose off before lunch because there again, maybe there

is a consensus. Is whether there should be a separate body or drawing boundaries. I

think the two proposals on the table, one is very specific, in relation to the transition

matters, but given the time constraints, we would accept the present boundaries as the

basis for the next elections, assuming on the basis of the Constitution, we are trusting, but

that would also require that a Boundary Commission be set up, to look at all these issues.

I know many submissions we have received have recommended that, and I think quite

recommend there because, then it is a task which requires time and consultation and so

on, and we could require that to be done even before the next round of elections.

The second general question for the future, whether we have the priority drawing up of

boundaries for election purposes should be vested in a separate body as the court had

suggested. This of course will not be a standing body, in some countries depends that, it

is time for re-drawing boundaries after census and so on, sets up a body, a full-time

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special body, there are surveyors and demographers, and people like that on that body,

who have better understanding of the factors that we are going to put into the criteria, and

so we could go that way.

Myself have slight preference for that, but, people’s arguments that we don’t want new

bodies and there are some expertees in the present Commission, but I am also prospecting

that some of you who have mentioned, the other point I had thought of before, that the

Electoral Commission gets controversial because of the boundaries or that quite affect the

other work. I think that is a good point. So, if that is so, I don’t know if we are in

consensus…… Okay, Isaack.

Com. Hassan: Mr. Chairman, on the issue of boundaries of the constituencies, people

also in that context, because we have talked about boundaries of the districts and even the

provinces. People saw there were some ways where this was approved. Maybe then, are

we thinking of that figure picture, where we expand the mandate of the Commission, and

….

(Interjection) Prof. Yash Pal Ghai: Please that was Githus and Marangas….

Com. Prof. Okoth-Ogendo: Mr. Chairman, that we are on the question of boundaries is

not just constituency boundaries. What has happened is that, while the Electoral

Commission was dealing with constituency boundaries, somebody else was dealing with

the administering boundaries, and that has created a lot of difficulties. I know of at least

7 constituencies that are lying across administrative boundaries and it is time, if we are

going to go for devolution at any level, then we have to rationalize the boundary

question. And I would myself, talk of boundaries, not just constituency boundaries or

boundaries as a general problem which should be dealt with by a Boundaries

Commission and take it away from the Electoral Commission.

Prof. Yash Pal Ghai: Yes, Zein. Can you make it very brief because….

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Com. Zein: Yes, very briefly. I agree with the formulation of Prof. Ogendo, but that

does take care of the transitional procedures which you are making reference to

Professor.

Prof. Yash Pal Ghai: No, I think as I understood the transitional…. I mean for the next

elections, I think we are agreed, let me say, we will recommend the Boundaries

Commission which will have its broader responsibility. And then, for future electing

boundaries, we would set up a committee or whatever you want to call it, when the

review is due, it should only be after census. And while we are talking about census, I

have taken note of Com. Zein’s point and I think, we need probably to give a little bit of

thought to the question. It is not only in our country that census faces problems,

countries have gone to civil war. Nigeria went to civil war, probably because of the

difficulties of census. So I think we need to think how we can ensure regular, reliable

and sensitive, one way might be to make the central bureau as independent of it, but

maybe there are other ways, so please bring your reports to this….

While I am at that point, we do have people who take notes, but I don’t have a secretary

to me. I know we have been postponing some issues. So, if you could please kindly look

through your notes, as I shall do my own notes, and just bring a list of things we have

been postponing, so they don’t overlooked, but we will also look at the notes which have

been prepared and they are quite reliable notes, detailed. But please look through your

own notes and let us have that.

Now, finally, I know that some committees are anxious to meet today, so that they can

clear the drafts which have been prepared for their committees, so they can be circulated

today and could be taken up tomorrow. So, what I am going to propose is adjourning for

lunch now, have a quick lunch, meet with the committees and tconvenors has requested,

and let us meet at three o’clock here, so that we can then continue our discussion.

The next item will be political parties. Sorry, just Bishop and then Charles.

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Com. Bishop Njoroge: Mr. Chairman, when we started, we did agree that we will work

against a programme, and it will be very important for us to have an appraisal.

According to the programme, we set ourselves, where are we? Because now we are in

the middle of the week. We really do need to keep our minds going back to that.

Prof. Yash Pal Ghai: The short answer is, we are behind our schedule, but it is hard to

say how long the different recommendations will take for us to dispose off. I think you

have a fair point, I think we need to slightly speed up our work. As I said yesterday, I

don’t want to unduly rush you because these are extremely important issues and we have

extremely good debates, and I don’t want to curtail, but please also do remember that we

do have time constraints and maybe we could have appraisal after lunch, by which time

we will have a clearer idea of where the different committees stand.

So, my proposal has been, I don’t know whether Charles will accept that, that we meet at

3.00 p.m., by which time committees will have finalized the text, they can be circulated

and given to us by tea time. It may be a bit of pressure on you, but I hope you will accept

that in the circumstances. Charles?

Com. Maranga: Mr. Chairman, given the volume of work and given that we have not

had a chance to go through that, Mr. Chairman, I suggest that if it is not asking too much,

we meet by 3.45 p.m. rather than 3.00 p.m. so that people have enough time to come.

Yaah, 3.45 p.m. 3.30 p.m. then.

Coms. (inaudible discussions on time by all Commissioners)

AFTERNOON

Prof. Yash Pal Ghai: Okay, can we just resume our meeting. You can start, yaah.

Now, we are going to look at political parties. Now, do you have the papers. John, if you

want to introduce the paper, please do so briefly.

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Com. Kangu: Yes, I will do that. Mr. Chairman, before you is a paper on political

parties. Now, in this document, we have started by seeking to define political parties, and

you will notice that right at the beginning from page 2, we are saying that the definition

that is available is a functional definition that seeks to identify the functions of political

parties. We have given some comparative studies, particularly, the German basic law and

the German law on political parties which give some very detailed functional definition

of political parties.

Now, the reason we have done so, is that, once we understand the role of political parties

in governance and which we are dealing with at page 5, we will then be able to appreciate

that we should not look at political parties from the narrow perspective of their providing

vehicles or avenues for people to exercise their rights to assemble, but that we should

look at them from a wider perspective of an important institution that plays a very

important role in governance.

Now that done, we will be able to provide for them in a better way in the Constitution so

as to be able to engineer the functions we are saying parties can play in governance. So,

we have defined in a functional manner, and at page 5, we have identified some of the

roles and functions of political parties, and this run through to page 9, at which we have

sort to distinguish between the role of political parties generally, from the role of the

winning party that becomes the ruling party and of course the responsibilities a party

assumes when it becomes the winning party and therefore, the ruling party.

Now, going to page 10, we have differentiated the winning party from the losing party

that becomes the opposition party or parties. And we have also tried to say that, they

should also be allocated a specific role within this scheme of roles, so that all of them are

seeking to advance the general roles of political parties in governance.

We have then moved on at page 11 to look at the present situation in Kenya under the

Constitution, and have noted that the Constitution doesn’t seem to directly and effectively

provide for political parties, but impliedly, it suggests that the political parties play an

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important role as we have identified a number of things under our Constitution that

cannot be done otherwise, than through political parties, and we, in terms of those roles,

have also tried to look at comparative studies from other countries, South Africa,

Tanzania, Germany and Uganda, and we have therefore said that, if political parties are

this important, then it becomes….. (end of side A)…… or law on political parties.

And at page 15, specific concerns arising out of the current party situation in Kenya are

discussed, running through several pages, and one major concern that is identified is

about the internal governance of political parties and the lack of democratic practices and

accountability mechanisms in political parties, as one of the main concerns that should be

addressed.

At page 17, we have identified the issue of financing of political parties, as one of the

concerns that ought to be addressed. At page 19, the issue of accountability of political

parties, in terms of their finances and their democratic practices and both to their

members and to the general public is also discussed.

At page 20, we identified need to promote a democratic culture through the political

parties and in the political parties, and we conclude therefore, that a number of issues and

problems raised, ought to be addressed through the Constitution, and at page 21, we

looked at the views of the Kenyan people, starting at page 21, the views of the Kenyan

people and their concerns as expressed by themselves, and this runs through page 22, 23

upto 25, and from page 25, we consider our own conclusions and recommendations, and

these recommendations run through to page 32, where we have dealt with those

recommendations in terms of those separate areas and issues that are raised. We have

recommendations on the right to 4 political parties; recommendations on qualifications

for registration as a political party; recommendations on the procedure of registration

including the need for a two-stage registration process, a first one that is kind of temporal

and then a final one; and of course we will need to consider what needs to do during the

temporal stage before he qualifies for full registration, and that is a process we can

understand better if we read the Tanzanian Political Parties Act.

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Then, we also consider the question of de-registration of political parties or how a

political party can be declared unconstitutional, and then at page 29, the right to join a

political party; then recommendations on functions and roles of political parties; and then

the question of financing of political parties is at page 30; the supervision of political

parties also at page 30; and at page 31, disciplining party members and then relationship

between the ruling party and the state, because we said, one of the biggest problems in

our country has been identifying the republican role of the ruling party. Previously, the

ruling party had operated as if it owes responsibility only to its members and not to all the

citizens.

And finally, at page 32, we have given some comments on handling defections and

finally, some recommendations on what should go, not into the Constitution, but into a

law on political parties. That is as much as I would like to say, Mr. Chairman, the

members can therefore take up from there. (clapping)

Prof. Yash Pal Ghai: Thank you very much. Githu.

Com. Githu: First, to thank John for being very brief and very concise.

Two, quick issues, Mr. Chairman, first is the right to form political parties. John says

that the right to form political parties, rather his group says, shall be protected subject to

the provisions of the Constitution. I would like a clarification on what those would be.

Secondly, Mr. Chairman, the right to join political parties page 29. Everyone is free to

join a political party. Again, this is one of those rights we were told by Prof. C. L. Peter,

that exist without any limitation. I personally …………. (inaudible) out that there are

such rights. It would appear to me that a political party is formed by persons who are

like-minded, they publish a manifesto, they publish a Constitution of the party, it is

within their rights, it would appear to me common sensibly, and I could be wrong, that

they can say, that this is a party formed for the sole purpose of supporting Majimbo, at a

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political platform and ideology. They can exclude people from that party, subject to

normal procedure as I think, who do not subscribe to their own political views. And I

would like to know whether everyone is free to join a political party, means, that political

parties lose the inherent democratic and basic right to reject persons who don’t share a

platform with them.

Thirdly and finally, on page 31…

Com. Nunow: Mr. Chairman, as out of procedure, I think I would suggest that we deal

and respect with each section in turns.

Prof. Yash Pal Ghai: I was about to say the same myself because I think your first point

is very simplified, but I think, otherwise…..

Com. Bishop Njoroge: Mr. Chairman, in respect to my friend Dr. Nunow and to you

Sir, maybe that is why we are going back on issues, so that if one person has spoken on

the few points, then he doesn’t have to speak again

Com. Githu: But I will be guided by you Sir.

Prof. Yash Pal Ghai: I think it is more systematic to do through…..

Com. Githu: Okay, then I will deal with only the first comment that I have made, which

was an enquiry from the learned author.

Com. Kangu: I can recommend right away Mr. Chairman, that at page 27, we are

talking about the right to form political parties. And if you go to 9.22, we are talking

about qualification for registration as a political party. So that is why we are saying, at

bullet 1, in 9.21, that the right to form political parties will be subject to the provisions of

the Constitution. And the Constitution will lay conditions which must be satisfied before

a party or an organization can be registered as a party. So, I think that statement is

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proper, that as we go down, we will be able to see what conditions are necessary. And

so, that right is not just a limitless right, it is subject to what the Constitution said is

supposed to be a party.

Prof. Yash Pal Ghai: Thank you. Charles. Why don’t you then begin with 9.22 or

9.21.

Com. Maranga: Yaah, 9.21. Mr. Chairman, I have a problem with the Electoral

Commission becoming the one registering political parties. Mr. Chairman, I would

suggest that we have a separate office to register….

Prof. Yash Pal Ghai: 9.22.

Com. Maranga: 9.22?

Prof. Yash Pal Ghai: 9.21.

Com. Maranga: 9.21. I am on 9.22 Sir, so, can I finish my point? So, Mr. Chairman

I am suggesting that on 9.21, because we are under the rightful political party, Mr.

Chairman I am suggesting that it will be wrong to have the Electoral Commission

registering political parties. There are a number of reasons as to why we should not

allow the Electoral Commission to register political parties. So, I strongly suggest that

we have the Registrar of Political Parties. Thank you.

Prof. Yash Pal Ghai: There is two different forms of registration – one is registration

as a political party, which is at the moment done by the Registrar of Societies. Then

there is maybe registration of political parties which we want to contest elections. Some

countries make the distinction. If you want to contest elections, then, you have to be

registered by the Electoral Commission. So, maybe we need to keep that. We don’t need

to have two forms of registration, we can have only one or it seems to me that parties

which are registered for electoral processes, should have certain conditions imposed in

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the way they are set out in 9.22. But if we are just forming a political party for lobbying

and so on, then maybe these other strict conditions may not be applied.

Anyway, that is just way of information. So, we have a proposal from Charles that in

9.21, the second bullet, that registration should be done by some other body. You have a

recommendation for the other body?

Com. Maranga: Yaah.

Prof. Yash Pal Ghai: Which body ……

Com. Maranga: …….. (inaudible)

Prof. Yash Pal Ghai: You mean create a new office?

Com. Maranga: Yaah.

Prof. Yash Pal Ghai: Ooh no, Charles. (laughter) Anyway, alright.

Com. Maranga: That is my proposal. There should be a creation of Registrar of

Political Parties which will deal with political parties, religious organizations and non-

governmental organizations.

Coms. (background discussions by Commissioners)

Com. Nunow: Thank you Mr. Chairman. I think I won’t propose the two-tier

registration that is implied here, and the one that initially registers as a political party

should only graduate to a political party that contest elections if it meets certain

additional criteria. So, I think the rule for registration, the basic rule for registration be

uniform, the political parties are not to participate in elections, should be additional

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criteria including number of membership who have mobilized, including the national

outlook and a number of other things that are considered desirable in formulation of those

procedures, so that you don’t have each political party, one of the registered having the

open cheque to contest elections even when it is comprised from a village somewhere.

That is my proposal.

Prof. Yash Pal Ghai: Okay, John.

Com. Kangu: Mr. Chairman, there are two distinctions that are being made here, and I

feel compelled to make some correction. We considered what the Chairman talked

about, the two types of registration, and we were of the opinion that we do not need the

two types, we should go for one registration. And our argument on the issue of the

Electoral Commission as opposed to a Registrar of Political Parties, we made a decision

on the basis of whether we will have sufficient work for a new office called, a Registrar

of Political Parties, and we thought there would be enough work. So that is why we

decided that, then we would rather put the registration under the Electoral Commission.

Now, listening to Dr. Nunow speak, I can see him referring to what otherwise is supposed

to be in our presentation as a two-stage registration process, which is different from two

types of registration that the Chairman is talking about. The stages will be there for every

party that is seeking registration. That you first, you may be given temporal registration

for a specific period, and if you satisfy certain conditions during that period, then you are

given full registration. But if you don’t satisfy the necessary Constitutional conditions

during that period, then in fact you are de-registered. You are not given the full

registration, and I said that, that is the approach that is used in Tanzania under their

Political Parties Act. If we choose that, and we follow the Tanzanian example, then we

will be able to identify the right which a political party is entitled to, during the period of

temporal registration as distinguished from those rights that a party will be entitled to

after it has secured full registration.

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In the Tanzanian example, political parties are not allowed to present candidates in

elections, and are not allowed to campaign for candidates in elections during the period

of temporal registration. So that is what we have in mind, and that is the clarification I

wanted to make. That on the issue of registration types, the committee has settled for

one approach – one registration, which does not distinguish between electoral parties and

non-electoral parties.

Prof. Yash Pal Ghai: Thank you for the clarification. Raiji after that Ibrahim.

Com. Raiji: Thank you Chair. I support that one registration as opposed to several

registrations, but there is a point that has been raised by Dr. Maranga which I think gives

me concern. This question of the Electoral Commission. We are transforming it into an

independent office to carry out elections, and I imagine that, if there is going to be a

system of registration, it will be subject to Judicial review and if for example the

Registrar disqualifies or if the Electoral Commission disqualify a party or refuses to

register and its decision is overturned, and the party now comes to conduct elections or to

engage in its activities, I see there will be a conflict of interest, in the sense that the

Electoral Commission would have been party to the proceedings challenging its decision.

Now, the issue really arises, then where to, who is to register? I entirely agree with you

Chair about my apprehension about forming more political offices. We do in fact have

an office. The fact that the office does not function properly is due to the kind of

weaknesses that I imagine will rectify this. That is the office of the Registrar-General,

which is under the Attorney General and I think as when we come to that office, you find

that probably, there will be need to give him a certain independence, some kind of

transformations, and probably we could create a department within that office, to deal

specifically with political parties and another one with religious society, within the same

office of Registrar-General, with some safeguards to prevent abuse, like has happened in

the past. But I am very apprehensive of creating any further Commissions or offices.

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Prof. Yash Pal Ghai: ………. (inaudible) in Germany and other places, the Electoral

Commission does the registration. Do you know deal with the question of registration?

Com. Pr. Ayonga: Yes. Mr. Chairman, I want some clarification from John as a

convenor, about this temporal registration and full registration and the registration, the

Tanzania way. I would like to know how successful has Tanzania come out with it?

Because, I can see danger if we are going to experiment something which has not been

successful elsewhere, just because, a neighbour is trying something. We should wait and

see or bring up our own way. And what would prevent this de-registered party, which

you may say well it temporal from a person from that very party coming out as an

independent person. You can’t prevent him. He can fall under independent person and

look for their votes.

Prof. Yash Pal Ghai: Thank you. Ibrahim?

Com. Lethome: Thank you Mr. Chairman. On the issue of the code of conduct, I

entirely agree with John, that is on page 28, the second-last bullet.

(Interjection): (inaudible talks by Commissioners).

Com. Lethome: Ooh, on registration. Okay, qualifications for registration. As we went

around…….

(Interjection): (inaudible talks by Commissioners).

Thank you Mr. Chairman. I think before we consider the rights of registration, maybe it

will help us, whether we have decided how many political parties we are going to have.

For instance, if we decide that as many Kenyans told us from the summary of the views

which are made on my own note, most Kenyans wanted between 2 and 5 political parties.

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Com. Wambua: First of all, I was thinking we need to agree on whether we need 4 or 2

or 3. Once we have agreed on that, it will be easier now to say, the type of registration.

Because, if we have a number, let us say Kenyans have agreed, we are proposing 4.

There is no need to have a two-stage type of registration, because, in our history in

Kenya, I don’t think political parties have formed for purposes other than vying for

elections. Most of them may not win those elections, but their main purpose is to ensure

that they get a chance to go to Parliament. So, if we decide the number of political

parties and we limit that, then we can decide the mode of registering them.


Com. Kabira: Thank you Chair. I wanted to agree with the committee, that we should

make the Electoral Commission a body that registers political parties. I think in line with

the kind of political qualifications and political activities of the parties and their

relationship to elections, I think in a sense we are consolidating our efforts and promoting

the activities of political parties, monitoring them and so on.

And I also thought of the political parties bill that was prepared by a number of political

parties, actually recommended the same thing, that the registering body should be the

Electoral Commission.

Prof. Yash Pal Ghai: Okay, so we need to decide basically on 9.22 which we have all

agreed that there should be registration. There seem to be preference for one form of

registration, though, it could be a interim registration. The question is which body should

be responsible for registration? We know your views Charles, so, unless you have

anything to add. Okay, Charles and then….

Com. Maranga: Mr. Chairman, the example which has been cited which John is using

very well, even the two-stage registration, the Tanzanian case, in fact, the Act in 1992 in

Tanzania provides for the establishment of the office of the Registrar of Political Parties,

forms of registration of political parties, disciplining of political parties and other

regulations, governed operations of political parties.

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Mr. Chairman, if we are going to start financing political parties, we need a body which

will be able to examine the records. Mr. Chairman, it will be a lot of work if parties are

going to start operating as political parties. You know parties are even supposed to own

properties, as opposed to own many other things, to be able to survive. If that kind of

situation reaches, then Mr. Chairman, this position of Registrar of Political Parties, is so

essential, and if you are ready to entrench the formation of political parties and regulate

them from the Constitution, then it is only fair that you have a body to do it.

Prof. Yash Pal Ghai: We agreed there should be a body. The question is which body?

Zein has the floor and then Nancy.

Com. Zein: Thank you Chair. In the example which you are asking, in the Germany

example, what they do is, the power of registration and the power of disqualification are

in separate terms. I think, apart from the question which you are asking, should we

distinguish them in that fashion or not. If the powers are in the same body, there is

tendency for abuse. In the Germany case, they use the Supreme Court in terms of

disqualification or banning of a party. They use the Constitutional court.

So, in making this determination, when we are using an example like that….

(Interjection) Prof. Yash Pal Ghai: Done by the Electoral Commission?

Com. Zein: Yes, the registration done by the Electoral Commission, but it does not have

the power to disqualify. But in the case which we are dealing with, it seems that the

disqualification and the registration are in one body. I will be uncomfortable with that, if

we are separating the functions, I will have a problem in preference of one over the other.

But as long as those functions are not in one hand.

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Prof. Yash Pal Ghai: Assume that the decision of whoever is the registering body to

register or to de-register at least be subject to Judicial review. Nancy, and then Mrs.

Yano to sum up.

Com. Baraza: Mr. Chairman, I was going to support registration by the Electoral

Commission. The reason being that, we are strengthening it and I think, an extra job to

do for them will not be too much and it is in line with this other function, and I am

suggesting that as opposed to the present registering body. If we remain there, I think we

are going to sack so many people in the process of trying to enforce this Constitution. I

think that is an office which has decided to act obliviously to the democratic ideals of this

country. It is not just that we strengthen it, I think there are so many other things that

have to be done.

But my major reason is that, that is a job which will be in line with the other functions of

the Electoral Commission. My strong reason for proposing the Electoral Commission is

that, that function will be in line with other functions of the Electoral Commission. And

of course that will be subject to Judicial review.

Prof. Yash Pal Ghai: Some of those views, is there way to harmonise them? John do

you have…..

Com. Kangu: Mr. Chairman, as I said at the beginning, the argument that the Electoral

Commission is required to be independent, and therefore it should not be the one to

register political parties if it wants to avoid being dragged into party politics, was put, and

we considered this, and our main concern was, and Com. Githu has said many times that

we shouldn’t end up creating so many offices. And our main concern about an office of

Registrar of Political Parties was that, obviously, he is not going to have enough work to

keep him there as an office. And that is why we came to the conclusion that we can with

proper structuring of the Electoral Commission to make it very independent and well

insulated to use it to register political parties, but, listening to submissions of Com. Zein,

I do see that maybe, there maybe need to separate but the question is, should it be by way

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of creating a completely new office, or can we identify some other office that has some

other functions and add them this particular function? But the worry is that, the other

thing is that people want to deal with an office that is distinct and have certain

perceptions about the existing registration mechanism. The Registrar of Societies has

been seen as an office under the office of the Attorney General, and so it has been seen

that it is the Government that controls the registration process of political parties and

therefore gets an opportunity to abuse that power.

And if we say the Registrar-General, the way Com. Raiji has said, I am sure Kenyans will

still argue the same way. That the Registrar-General is an office under the Executive,

and they cannot trust him with the function of registering political parties. And that is

why we said, the Electoral Commission which we are creating as an independent

Constitutional office, maybe better placed to deal with that and avoid those accusations.

Now coming to what….

(Interjection) Prof. Yash Pal Ghai: To just add on that, as a possible compromise,

would be to give a right of appeal against a decision of the Electoral Commission on the

registration. So, if you move the Judicial Review to be a right of appeal, and then comes

close to the German model, and then maybe a compromise.

Com. Kangu: I was saying, coming to what Mohammed raised, I don’t want to use the

other name because, it will………(laughter) we will be considering that down the line,

and we reasoned on the question of numbers and said that, although many Kenyans told

us, we limit the number to a specific number, it will not be reasonable for us to state a

number in the Constitution. But we can limit numbers by setting conditions that will at

the end of the day restrict the numbers. We set certain conditions in the Constitution, so

that people don’t come and say, you have denied us our rights to associate by forming a

political party because you have limited to 4 numbers, and we already have 4 parties and

we don’t like any one of them, we leave room, that you are free to form the party you

want but so long as you meet these conditions. If the conditions cut you out, you cannot

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be heard to say that you were denied your right to associate. So, that is why we said, let

us not state the number but state the conditions.

Prof. Yash Pal Ghai: Okay, it seems to me that we are agreed on the need for

registration, and I want to have my compromise, will be acceptable that the Electoral

Commission is responsible for registration, de-registration as well, but, there will be a

right of appeal to the Supreme Court against their decision. So, let us go to Germany

model. Is that acceptable?

Coms.: (inaudible discussions)

Prof. Yash Pal Ghai: No, High Court, yes. Okay, thank you very much. 9.22 which is

qualifications, yes, Ibrahim.

Com. Lethome: Mr. Chairman, looking at the qualifications as suggested or

commented by Mr. Kangu’s team, I find something missing here, because, as we were

moving around, Kenyans were telling us that there is need to limit the number of political

parties. And one of the ways of limiting the number of political parties, is to make sure

that, and also to reflect the national character which has been suggested by Com. Kangu.

Before a political party is registered, it should be able to show that it has that support, by

maybe showing that it has a number of people supporting it in every province or every

region. I would like to see that here.

And also, if at the end of the day we are going to recommend that registered political

parties be funded by the Government, we should have a way of limiting them because

what stops me from forming a political party with my clan, with my family, to get the

funding. Only if I can show that I have that national character. So, I would like to see

that maybe reflected well.

Prof. Yash Pal Ghai: And as executive committee shall be representative of all parts of

the country. You mean something more than that?

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Com. Lethome: A certain number because, suppose I have Ahmed alone in North

Eastern Province, Bishop in Central Province and Dr. Salim in Coast Province. Maybe,

we need to qualify that national character. And Kenyans suggested a certain number.

Then, why should a party be disqualified because it is purely founded on religion basis?

Because, suppose that party is called maybe the Islamic Party of Kenya, but there are

Muslims all over the country, so it has support and that national character. Why should it

be disqualified just because it is a religious party, and somewhere in the papers, I think in

the beginning – the Preamble, you said that you don’t know why ISK was not registered.

Yet in some countries we know of parties called the Christian Democratic Party. Yaah,

Christian Democrats. Why don’t we have Hindu Democrats Muslim Democrats, Pick

Democrats, SDA Democrats, or something like that.

Coms. (inaudible comments)

(Interjection) Prof. Yash Pal Ghai: Okay, let us give Ibrahim a chance to finish his

argument.

Com. Lethome: Then, my last comment is on the code of conduct. Whereas I agree

that we must have a code of conduct, but I don’t know whether Com. Kangu will tell us

who will develop that code of conduct. Will it be through an Act of Parliament or maybe

the political parties still. Does it encompass that? What do we recommend in as far as

that code of conduct is concerned? Thank you.

Prof. Yash Pal Ghai: Raiji?

Com. Raiji: Thank you Chair. Just a small contribution on the issue raised by my

colleague Ibrahim, the question of religious party. I think you notice that even the

argument that you heard before, regarding the ethnic groups or families and so forth, we

have come from a certain environment under which there are a lot of deviations and so

forth, and we are trying to get something which has broad support. Most of our religious

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organizations may have broad support, but I imagine we are mindful of the fact that

religious organizations are sort of by nature, exclusive in the sense that, if I am a

Christian, I will though not be allowed to join the Muslim Party and so forth.

I think it is in that spirit that we are trying to broaden representation and to try and bring

in place some kind of national political party, because we are now operating from a

background where we have tribal and even sub-tribal parties, and I think that is why the

contribution from the floor, I think that we have a certain minimum from every region to

ensure that we move away from our factional interests.

I think they will preserve their own history which led to their having Christians and all

that. Some of it is not very paratable and so forth. But I think in all situations, I think it

may probably not, at this stage in all developments. It will not be in our interest to

encourage ethnic religious or other patterns based on other considerations that may

hamper national unity and integration.


Com. Baraza: John, I don’t know, in Greenland there is an old woman, but I don’t

know how to put it…… yaah, they do have party there, and in Kenya here, seeing how

women have been marginalized, we have toiling with the idea of forming an all women’s

party, I don’t know what that pattern….

Com. Wambua: Mr. Chairman, I think, this thing to the views of Kenyans, they decided

and if I remember very well, Kenyans wanted a number. I don’t know why we are

running away from what people told us. Kenyans wanted a certain number. They told

us, go and be paid there but give us a certain number. Now, if you say, (Bishop I will

give you chance) that we limit through this conditions here, none of these conditions is

unsatisfiable by 100 parties in Kenya. None of them. For example, if you say, we want

to promote and afford national unity through having an executive committee representing

all parts of the country, as Ibrahim has said, you can have all your colleagues here, after

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they leave the Commission, they can represent from all provinces, abide by democratic

principles they are undertaking to promote and practise democracy. Everybody can do

that, and so, the other conditions, they can be satisfied. But these people said, the current

large number of parties does not seem to serve any purpose.

Well, there is a problem about the number, I think John explained, there is a right of

association given under the Bill of Rights and to beat a terminal number would violate

the rights of people to form associations.

Com. Wambua: So in countries like the U.S.A., are the people’s rights violated? In

Britain or where?

Prof. Yash Pal Ghai: There is no restriction of the number of parties.

Com. Hassan: I hear your point, and I think it makes a lot of sense, but can that be

reflected in the report? Because, we have to justify it, why you have deviated from what

the people said.

Prof. Yash Pal Ghai: Bishop, Githu, Zein.

Com. Bishop Njoroge: Mr. Chairman, I thought there was a problem that I was going

to assist in solving, but I think, Hassan has already taken care of it which is this. I think

we need to put on the table and address this question whether we are bound by everything

the people said, because we have confronted that issue. For my part, there are many

things the people say, that are wrong, that are unjust, that are unequitable, that are

unenforceable, that would render the legal system unjust. So, and I think we must have

the courage to confront that issue. We cannot sit here and pretend that we are slavishly

following everything that was said.

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Many people told us in many places in Kenya, we don’t want a thief taken to court, and

we asked them, how do you know this is a thief? We know. We understand that we

cannot vest the power to determine whether a person is a thief in the mob.

On this question of political parties, I heard so many Kenyans who said we want them

limited to 2, to 3, to 5. I have no doubt in my mind and in my conscious that they are

wrong. Political parties, if we secure the rights of individuals to free association in the

Bill of Rights as we must, it is going to be inconsistent at the same time to purport, to

limit political parties, except on clear definable, non-discriminatory Constitutional

principles. That was just my first point.

My second point, Mr. Chairman, is on the national character, just to remind John. That

when we use the word ‘national character’, then you need to do a little bit more work in

the Preamble and elsewhere, to tell us what the ‘national character’ of Kenya is.

Com. Zein: Thank you Chair. There are certain things which when implemented must

have an impact and remification on all other aspects of the Constitution. For instance on

the point which was raised by both Com. Nancy Baraza and Com. Lethome on restricting

registration of parties on basis of gender or on basis of religion, sometime this is

necessitated by exclusionist approaches that the establishment or the existing institutions

have despite the qualification of national character.

Do we define ‘national character’ to include only the lower achrony of membership or do

we define ‘national character’ to include the supreme decision-making bodies of political

party. If there is going to be a statutory mandate, if we are talking about legislation, that

a political party must not only reflect national character on its membership, but, on its

highest decision-making body, that there will be women there, it will not be only men

there, then Nancy’s question will be answered, and then there will be a more willingness

to restrict in this version. If you say that the national decision-making body will not only

have one group of people of one faith, then Com. Lethome’s problem will be taken care

of. Not being able to satisfy at that level will then allow people to have other avenues

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for self-expression, for agitation, for political expression as it were. So, I think we need

to connect the restriction with statutory standard of practise and compliance in making

‘national character’ a reality. Again, in defining ‘national character’, I think there need to

be something more in principle in the legislation, not in the Constitution but in the

legislation.

The second point I would like to make Prof., is that, for instance the Germany law, draws

distinction between regional parties and national parties. I don’t if we want to make the

same distinction here, so that we have provisions for both national and regional and that

the regional parties have a slightly less stringent measure of registration procedure.

(Interjection) Com. Yash Pal Ghai: I am not quite sure. Maybe you can inform me on

whether regional parties are used in the sense of parties operating at a level of the

national or level of the state as post-federal, but I am not sure.

Com. Zein: They operate at the level of the state, not at the national level. So, as you

rightly have pointed out, this then will wait for devolution. When we have a paper on

devolution, then we will know if we are going to make provisions for parties of that

nature or not. But thinking wider than the Germany experience, in just terms of principle,

what if there was a political party which just wanted to enter political elections? They

didn’t want to enter national elections?

Prof. Yash Pal Ghai: That is a good point. I think we can come to that in devolution or

even decide now if you like. So, are there any other comments, so then we can see

whether there is consensus on 9.22? I believe there is except on this, I think Zein has

very helpfully suggested how we might deal with the question of ‘national character’ that

was raised by Githu, but I think there is still this question of numbers and I think there is

a general view that we can’t really limit numbers because of rights of association, also the

difficulties of fairness, what number do you have, and you can support. Nigeria tried it at

one time, they said there will be only two parties, one socialist, one capitalist, you have to

decide and the system didn’t work for more than two weeks. So, it is difficult to operate,

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and so I think we will have to live with it as well. John said, some of these requirements

are quite stringent and maybe dealt with the state.

The other I think, where we discussed it yesterday, I think, the number will actually go

down if now we are recommending independent candidates, and the reasons we have so

many. They are like only called…….. (inaudible) parties, so few members that you can

put them on ……. (inaudible) party. And so, I think we will possibly get to disappear

then. And indeed now there are 41 parties which are registered by October, 2000, and

they are entitled to send delegates to the conference, and have attempted to contest, half

of them have completely failed. The phone numbers with the Registrar, the box numbers

don’t seem to work, letters get back to us from there, so already of the 41, it seems to me

that, at least 20 are already working, and only about 8 are in Parliament, so it practise it is

brought less of a problem than it appears when you look at the total list. But anyway, I

believe that the general view is that, we handle very much about it, but if we encourage

nationwide parties and the number will probably decrease.

Then there is a final question, yes.

Com. Kabira: I just wanted to add on to what you are saying that some of the

incentives created here, will also reduce the …… (inaudible). You know like the funding

of the various political parties, on the basis of the percentage of the votes that you get,

will also reduce, it will encourage people to merge more.

Prof. Yash Pal Ghai: Yes, I think Ibrahim’s point, we would come to, because you are

already implying that because we are going to fund them now, we might recommend that,

they should discourage more parties. But I think there aren’t part of the paper, but I think

there may be rule which require you to demonstrate a particular level of support before

you get that. So, there is one question then left from my notes, which is Ibrahim’s point

about why should we restrict parties which are truly religious or linguistic or racial? I

don’t whether we have any…. yes Bishop.

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Com. Bishop Njoroge: Mr. Chairman, we were working on the aspect as to whether

Kenya will be a secular state, and we are trying to isolate religion as an ideology from the

state. The problem in having political parties which are religious, if those political parties

come to power, then there is a possibility, the borderline between the religious expression

and the political expression will be diminished. And therefore, it is important to keep

anything religious from the secular that you can then guarantee a base that is lacking.

But if we don’t separate religion from the state, then there is no reason why we cannot

have religious political parties. But I am sure in many countries, that is something that

they would hate to have, and I know it can contribute a lot to disunity within a country.

Com. Kangu: I would like to add on that Mr. Chairman that, truly if we seek a secular

state, but we allow political parties that are based on religion, and we are saying parties

are organizations of citizens meant for various themes including trying to secure the

government and run it. If a party that has been registered purely on religious ground,

secures government to run it, how do we manage to maintain the secular nature of the

state? So that is the issue we really need to think about.

And that will also go to what Nancy has raised. A party for men only or a party for

women only. We are saying that we are seeking an integrated society in which there is

no discrimination on the basis of gender, and we get a women’s only party winning

elections. Women are already complaining about men forming governments of men

alone, and one of our business here, is to seek, to make a Constitution that will ensure

that these past approaches are done away with, so that we can be able to form a

government that is inclusive, that brings men into it, that brings women into it, that brings

different tribal communities into it, that brings different religious organizations into it.

But we say, organizations that are seeking to capture government can be allowed to

operate on an exclusive basis. Then we will be risking getting a women’s only

government in place…….

Com. Baraza: In fact I was just informing you …….

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(Interjection) Prof. Yash Pal Ghai: Yaah, just one minute. I am just looking round to

see who have hands up and how to organize the debate, but you start, and then Kabira

and then Zein.

Com. Lethome: Yes, whereas I would like to agree with John Kangu, but then, let us go

back to 9.22 bullet 3 – on the national character. The reason, we should go to the cause

of the problem. Why for example, IPK is going to be registered? And why for example,

we are talking of a women’s party and not for a men’s party. It is because of the

marginalization of these groups. I don’t foresee a situation where Kenyan men will be

agitating for an all men’s party because they are taken care of by the parties that are there.

So, we should go back now to the ‘national character’ and describe it. When you talk

about ‘national character’, however, are we just looking at the regional representation?

Or religious representation? Then the ‘national character’ here, should be broader, so

that we take care of those people who are seeking to register religious organizations or

gender organization.

Coms. : (inaudible discussions by Commissioners)

(Interjection) Yash Pal Ghai: I am happy that, I think we have been very fortunate in

our country that we haven’t had major religious conflicts, or I do believe myself, that

Muslims are marginalized, I think I have talked, from 1964 when I went to Madaraka and

Jamhuri Days, I am really quite surprised what Christians said when it was that, and even

though we had Jamhuri Day, but three days before Idd, nobody wished us happy Idd,

Christmas was just a forthnight, and we wrote promise happy Christmas. So, I do think it

is a point we need to take seriously, but I don’t think that should be reflected in the

formation of parties, but we have to make a serious effort to acknowledge and respect all

religions equally.

Yes, sorry.

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Com. Kabira: I think actually I was going to follow the line followed by Com.

Lethome, in fact, which was a builder what Com. Zein had said. And yesterday when we

were discussing with Com. Zein, he was reminding me that, the best definition of the

‘national character’ is actually in the Act. By that maybe, you could borrow it for, you

know, so that when you are talking about regional representation, we look at the various

diversities and say that, those committees should reflect that diversity, not just region,

religious, ethnic, gender, disability, and so on, so that an … (inaudible) could be defined

as a ‘national character’, so that we become more inclusive and therefore, we give

opportunities to express their different needs within the various political….

Prof. Yash Pal Ghai: Zein?

Com. Zein: Thank you Chair. Just to add a little matter, every time we speak about

political processes in Kenya with involvement talking about elections, and people kept on

saying, let us learn from the history. What does the history of this country tell us? For

instance, no one can deny the fact that, repeatedly, senior government officials say Kenya

is a Christian nation, in public, on television, on radio. They repeat that, and at the same

time we are being told that they should not be ……. (inaudible).

If you take KBC and people are complaining about KBC and campaigning, KBC has free

Christian instructional programmes running throughout the week, and if you talk to Com.

Lethome he will tell you, even during ‘Ramadhan’ when they went to ask for a

programme, they were told, you have to pay concessionary rate. So, when we are talking

about things like this, we must put it in its proper context and perspective. Thank you

Chair.

Prof. Yash Pal Ghai: Thank you. Salome?

Com. Muigai: Thank you Chair. I would like to add my point to the fact that we need

to broaden the diversity, what it is that it means. I also wanted to know from Com.

Kangu and his group, when you say that the executive committee that is the second bullet

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on 9.22, the executive committee shall be representative of all parts of the country. What

does that mean in real terms. Is it all the provinces? Is it all the districts? If my village is

not included, does that mean that, that is not, can we tighten that one a bit just to be more

pro-active against some mischief because that can be in court the whole time without

this manner of everybody coming to say that, my part of the country has not been

included. For example, if I were in your party, would that be seen to be representing the

Rift Valley? Again learning from our history, what does ‘all parts of this country’ mean?

Is it the residents? Is it the ethnic groups? What do we mean by those kind of things.

Can we think of them now rather than retrospectively.

Prof. Yash Pal Ghai: And again, this is one of the issues that you have touched on

many times, but we should think about it. We would probably have a general principle in

the Constitution, and then there will be no doubt, legislation on political parties, which

would provide the details of that, but we can think about it now, and John has promised

to take it to his committee or maybe we could discuss it now. Obviously, it can’t be a

village but at least broadly the different parts of the country.

Com. Kangu: I think Mr. Chairman, I will suggest that we go…..

Com. Hassan: Before he answers, maybe, I have the last one, you also mentioned

that….

(Interjection) Prof. Yash Pal Ghai: Yes indeed you can.

Com. Hassan: Because I know you want to respond to all the issues, maybe you can

respond on…. Mine is also on the same issue which Ibrahim has raised. I think what

communities are marginalized or groups or people are marginalized? And then no

political party is taken care of their interests or their rights. And then you close the door

for them, since it is a political party, for them to be able to capture political power or to

advocate for their interests. You really then squeeze them very tight, so tight that, the

possibility of them thinking of other non-legal and unconstitutional means, may come

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into fall. They end up taking arms, for example, going into violence, noisy sessions is

one of them or purely something …. (inaudible) in their area.

So, I think we should see a way where we are able to accommodate, because, they may

not be able to satisfy this requirement all across the board. Just like there maybe no

political party which is in that particular area or that particular interest. And the kind of

people who come together to form a political party, and the system of shared ideology,

which is possibly a minority view in the country.

Take for example, take people with ……. (inaudible), they want to form certain political

parties, all with that ideology. They must be able to get across the board in the country

not the provinces or the communities. So, I don’t know how we are going to balance this

step, but I think people should be allowed as far as possible, while this is true, people

should be allowed to come together as a community and fight for their rights.

Com. Kangu: Mr. Chairman, I would like to say that, coming from Com. Hassan, then

we see the difficult we have. Balancing between what the people told us, that limit the

number of political parties and allowing sufficient room within which even marginalized

people can be able to have an opportunity to participate in party activities.

Now, that is the challenge we have, but I want to go the Wanjiku way, that is….

(Interjection) Com.: Professor.

Com. Kangu: Prof. Wanjiku, not the Wanjiku that is supposed to be making the

Constitution. (laughter). We need to actually be clear on what we mean by the ‘national

character’, and as Salome has said, I think it is not the best way to say, all parts of the

country, we should talk in terms of taking into account the diversities in our country, and

we will be able to say, diversities in our country is a phrase that is wider, it is a concept

that is wider than all the parts of our country. So that we will be able to say, we are

taking into account the diversities of our country in terms of parts of our country, regions

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of our country, in terms of gender, in terms of ability and disability, in terms of religion,

in terms of marginalized groups and so on. And I think, as the Chairman has said, when

we have to put details, we need to capture a general rule for the Constitution. But when

we go to the detail in an Act of Parliament, we might need to look at what other Acts of

Parliament or what Acts of Parliament for other countries say, example, I remember

looking at the Tanzanian Act on political parties, and they specify even numbers of

supporters from different parts of the country that you must show you have secured

before you can be allowed to register.

So, if we specify the diversities properly, we might be forced to say, we want you to

prove that you have supporters from this part of the country, from this part of the country,

you also have some mix of the religious groups in our country, and you have some mix of

gender and other things. It is a difficult thing, but we have been given that difficulty job

as a Commission to do, to appreciate the needs of our people and translate them into a

mechanism that can satisfy them.

So let us deal with that, in the details of the Act, and I think I will suggest, as Mr.

Chairman you had suggested, that, maybe, although time is against us, we might need as

a Commission to discuss some of these details and prepare some sample Act that capture

the spirit of what we are discussing, so that we don’t just leave to Parliament which may

not understand the spirit of some of the clauses we will have put into the Constitution, or

the office of the Attorney General, because Mrs. Nzioka may leave here, and hand over to

her assistant who doesn’t understand what we have gone through in the debate. And I

think we have a responsibility to assist in that direction, and we may have to complete the

Constitutional principles, and find some other time to discuss the details of the Act that

we want to come up with.

Prof. Yash Pal Ghai: Yes, I don’t know this is the right point to suggest that, to meet

your thing, we could probably publish a report, there is still bit of time, we can draw up

guidelines, things like that, and present it to the conference.

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Com. Prof. Okoth-Ogendo: Point of information. I don’t know whether John Kangu’s

taskforce looked at the draft Political Parties Bill which is attached to the report on

taskforce on public order.

Com. Kangu: We looked at it briefly, but I looked at it when we were still in Nairobi,

but after you mentioned, I think early in the course of the week, I haven’t found time to

go back to it.

Com. Prof. Okoth-Ogendo: Yaah, because many of these guidelines are still there, and

I think there is a copy, I don’t know who has got it but somebody around the table

borrowed it from me.

Com. Kangu: I will go and look at it. I think I have my own.

Com. Prof. Okoth-Ogendo: There should be a copy in the Library, because I borrowed

one and I returned it just before we came here.

And also, I believe there is another Bill which is not for Parliament. It is for non-parties.

There are two versions, and we could look at them.

Com. Zein: One of the strategies we should use is, the things we have control of, we

should use. All these things we are saying, they should go to our report in the minimum.

Prof. Yash Pal Ghai: They must. Okay, with that agenda Commissioners, are we happy

with the 9.22? Okay, then we go on to 9.2.3, de-registration of political parties. I know

yes we had recently discussed this when we said that, de-registration will be done by the

Electoral Commission but subject to appeal to the court. Other issues there that are

required, yes.

Com. Maranga: In bullet one, there is still some suggestion or reference there to a

Registrar of Political of Parties, so members can cancel that.

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(Interjection) Prof. Yash Pal Ghai: A what?

Com. Maranga: A reference to a Registrar of Political Parties, so members can cancel

that.

In fact, if you have noticed, if you look at the second bullet on page 29, it actually

provides for de-registration by means of an action before the High Court. So let us look

at the German situation and let us see what is wrong with that. What are we proposing?

Com. Hassan: This is more difficult for the Electoral Commission to de-register a

political party.

Prof. Yash Pal Ghai: It is more difficult, but I thought this point was that we give them

enough safeguards.

Com. Hassan: Yes, but I thought the safeguard was that it would be right for the

Judiciary…….

(Interjection) Prof. Yash Pal Ghai: …… (inaudible)

Com. Hassan: Because I can’t imagine, after the Commission spending so much money

trying to file proceedings in the High Court just to de-register a political party, it is

obviously a breach of so many provisions.

Com. Zein: Thank you Chair. I would be much more happier with this formulation,

because, if you look at the Germany context, this was put there for a number of reasons.

But much more, apart from securing the rights of citizens, is that, if you have stringent

regulation for registration, and a party fulfills all those, and then to take away a right,

should be much more difficult. Particularly, taking away a right of not one person, but a

collective group of citizens, and when that right is taken away, it means it is

distinguishing or extinguishing of an institution, and the premise that, that institution

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would have had roots and a certain orientation of doing things, would also mean that, a

certain part of a life of the people of the nation dies, and I think the safeguard is very

important.

Prof. Yash Pal Ghai: Any other view about the issue? Yes Bishop.

Com. Bishop Njoroge: I think there is a problem here. If we give the Electoral

Commission the right of registering political parties, it should also have the right to de-

register, if the political party goes against those basic principles that it has set.

But what I understood is, a political party can also challenge that de-registration in High

Court. If the Commission has a right, then let the political party which has been de-

registered go and seek intervention of the High Court. But to ask the Electoral

Commission to go to the High Court and seek de-registration, I don’t think it is proper. I

think it is the other way round.

Prof. Yash Pal Ghai: Lenaola?

Com. Lenaola: Chairman, I understand what my friend Zein is saying, but if you look

at, I think we said initially that when the Electoral Commission has the powers to register

political parties, the parties that are not registered have a right to appeal to the High

Court.

And we are also saying, therefore, when the Electoral Commission de-registers a party,

let the party be the one to go to the High Court to say that the de-registration is incorrect,

but the Electoral Commission to go to the High Court to move injuction, let me de-

register this political party. I think it is consistency of procedure, if we follow the initial

procedure.

(Interjection) Prof. Yash Pal Ghai: Follow what?

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Com. Lenaola: Follow the same procedure that it is the party that is aggrieved that goes

to court, but not the party that is moving injunction, not the Electoral Commision to move

injunction.

Prof. Yash Pal Ghai: Okay. Yes.

Com. Kangu: Mr. Chairman, if I go back to the example of Germany which Com. Zein

has given, in Germany, they specify even the grounds on which you can go to the

Constitutional Court to seek that a party should be declared unconstitutional. I will be

inviting members to assist us in setting out the grounds. But again, they also specify

which institutions in the country, it is not anybody who can go to the Constitutional Court

to have a party declared unconstitutional. They specify the institutions that have a right

to go to the Constitutional Court, I think, I don’t know whether it is the…….. (inaudible),

they specify.

Now, if we say that the Electoral Commission should have a right to register parties and

also a right to de-register parties, we are getting into a problem, because what will happen

is that, you come for registration, we reject your application, you go to the High Court on

appeal. The High Court says, you should be registered, you are sent to me, I register you,

and I have the power to de-register you. I can register you today and tomorrow move,

and say, we are de-registering you, and that is going to be a problem.

(Interjections from the floor)

Com. Kangu: No, let me finish, I have the floor. So that is why we are saying, whereas

they have a right to register parties and the involved parties have a right to appeal to the

High Court, the Electoral Commission must not have a right to de-register political

parties, it can only move the High Court if it thinks a party deserves to be de-registered.

Com. Hassan: Let me add something….. I am sorry John, but I have a lot of difficulty

in accepting you argument. Usually, I have no problem understanding you, and accepting

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your positions, but this one, I think you are wrong, absolutely wrong. I think because you

have shifted to the left.(laughter) But I think, let us consider our Kenyan situation to the

Germany situation. For us in Kenya, we have established a system of Judicial Review of

all administrative actions or actions taken by public bodies.

Again number two, and that the grounds of review are well set out in Judicial Review

Law, you know it is upto finish with the Constitution.

(Inaudible interjection by a Commissioner)

Com. Hassan: No, no, don’t worry about that. That is why today we are in court also.

The ground on which a person may seek a Judicial review are well known, you don’t

have to list them in the Constitution or even an Act of Parliament. It states clearly on

that. Now, my question is that, you should not, Mr. Convenor, try to set rules with the

current Electoral Commission in mind, with the current High Court in mind, because, you

people are very optimistic, and you are still in a mental trap, that you are making a new

Constitution and putting new rules. Why aren’t you thinking of what is the Electoral

Commission? When you refer to them as the Electoral Commission, you think of what it

is or what people have said about it? And when you talk of the High Court, you talk of

one problem associated with the High Court.

I think we should think forward and be a little bit optimistic as I had said. We are

thinking of creating an independent Electoral Commission, which as you have said will

not be capricious enough to register you today or refuse to register you, and then when

you go to the High Court and get an order, they again register you the following day. I

mean we are expecting that the kind of Commission we are going to establish will not be

one which will be so low so as to do that.

So I think the issue of asking the registering body to get approval to do what they should

be doing is extremely unfortunate. I think, the fact that bodies are given to register and to

de-register, it is not a new concept. The Registrar of Companies, he registers companies

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today and if a company violates the Company Act, he de-registers them, and it is a

process. If the aggrieved goes to court, there is an established jurisprudence. Why do you

want to …… (inaudible) some matters today?

Com. Prof. Okoth-Ogendo: Mr. Chairman, I must say that Com. Hassan’s arguments

comment themselves to me. I am unable to agree with my noble and learned friend John

Kangu. First of all, it is in my view, quite logical that a party can be registered today, and

tomorrow, new facts may come to light that cause it to be de-registered for violation of

the criteria, that they have now done something, which, had it been known by the time

they got registration, they would never have been registered in the first place. So, that is

a discretion we cannot take away.

The other issue, Mr. Chairman, is that when we vest power in a regulatory authority, we

must be very careful not burden it with responsibility beyond that which they need to do

the job we have given them. For example, it is not for the Commission, however

described, or the Registrar, however described, to go to court and say, I now have facts

that allow me to de-register this person. It is for the Registrar or Commission or

wherever, to satisfy themselves on the interpretation of the law, that, that person has

violated the law. Then, it is the burden of that person to go to court, otherwise the

Registrar will never do anything else. He will spend the rest of his life going to ask the

court for permission to do what we have already told him in law to do. Thank you.

Com. Bishop Njoroge: I am not going to take a lot of time. I just want also to take a

position which Hassan has taken, and that we already have a jurisprudence to that effect.

And, I would like to remind….(end of side A) it is not a must that we might go all the

way, the Chairman does not tie us, that we should take everything. For instance, has Dr.

Muigai has said, it would tie the Electoral Commission through busy bodies, just to spend

all his time at accord.

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And therefore, I would recommend that the Electoral Commission registers and de-

registers. Let the party go to seek intervention of the High Court. And, consensus have

emerged. (laughter)

Com. Maranga: Mr. Chairman, what members are forgetting, when the ECK is going

to register and de-register, they are forgetting what functions the ECK is performing, and

what functions the political parties are supposed to perform. There is a clear conflict of

interest. Mr. Chairman, ECK can de-register a party today, and for a week, and will be

able to knock out that party for any nomination process, and that is just around the corner

when the elections are taking place.

Mr. Chairman, that will be a dangerous ground. That is a sure way of rigging elections,

because, you are going to de-register a political party, next week, you have a nomination

process for elections. What are you supposed to do? If you can register a party today,

and tomorrow you can easily de-register because you have the power to do so.

Mr. Chairman, I do not agree with that provision for very good reasons that we have a

history in this country, where people can even de-register political parties in the eve of

elections. So, and you can also disorganise a political party, you can disorganise the

following of that political party, denying people the right to vote. You are giving them in

one way, and denying them in the other way. So, Mr. Chairman, I disagree with that

method.

Prof. Yash Pal Ghai: Thank you. Zein, and then Okoth, and then, let us see if we have

a clearer view on this issue.

Com. Zein: Thank you Chair. In this particular case, I would also like to say that I do

not have the happy occasion of sharing many views which I find reasonable with Com.

Ahmed. In fact, I would like you to state the symbolism which you use is more

applicable to him and others like him who have debated this point. That they are the ones

who have become hostage of tradition. They say, the only justification there is, is that, it

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is the jurisprudence of this country that it is done that way and don’t bring the Germany

example here. I think that is not a good way to deal with this matter. I think we need to

isolate two and distinguish two phases. The first phase is when a political party applies

to be registered, and it is given twelve months to comply with registration conditions.

Now, within those twelve months, if it is satisfies the registration conditions, then the

Electoral Commission has the discretion of registering or refusing to register if it is

estimation that this party has not fulfilled those conditions. No one wants to take away

that discretion from the Electoral Commission, and I think people mix that with the other

view.

The other view is this, that you had a party which has been practicing, which is been

getting into elections for say 4 or 5 years, and then, for whatever reason, the Electoral

Commission is being given discretion to de-register such an existing party. This second

condition is a much more higher condition than the first, because, the political party will

be already in existence, and it may even have Members of Parliament based in that party,

and if the Electoral Commission is going to say it will have the discretion of de-

registering, it can put in jeopardy the tenure of some of the people who were sponsored

by that party. And in this context, the Electoral Commission will act both as a

complainant and as a Judge. So it will move the complaint to itself and say, according to

the conditions, we are appealing this political party has done a,b,c,d,e,f,g and then at the

same time, put on another paper and say, found guilty, de-register. And this is the

condition we are now saying. Do not put these two discretions in the same hand of one

authority, unless we want to create the tyranny of an Electoral Commission.

Prof. Yash Pal Ghai: Thank you.

Com. Hussein: The preceding page, page No. 28. There is a procedure including

warning to the party. That you are in breach of the following code of conduct or some

Constitution or the Constitution of Kenya, there is a warning period prior to de-

registration. So, it is not that one morning thing that I wake up and say, you are now de-

registered. There is a procedure before de-registration.

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Therefore if a party feels that there is money for ….. (inaudible) on the part of the

Electoral Commission, you can move to the High Court even prior to stop it from doing

that. So, I think there is a procedure before, and it can then be tightened up.

Prof. Yash Pal Ghai: Okoth?

Com. Prof. Okoth-Ogendo: Mr. Chairman, I am worried about the regulatory gate-

keeping mode which this discussion has taken. For one, we are defining political parties

as instruments for democracy, not just instruments for elections. So I am wondering why

we are asking the Electoral Commission to perform this function rather than somebody

else.

Number two, I am wondering why we even want to register and de-register. We want to

keep the gate, there are many jurisdictions with which you don’t need to register a

political party. Where the so called Registrar is a record-keeper. He is not the person

who decides whether or not she should exist or cease to exist, because, we are in the

public domain.

Number three, if political parties are important beyond elections, they are therefore

strengthening of the democratic process. Then, any person who thinks that a political

party is subverting the democratic process, ought to go to court, and ask for the de-

registration of the party, not any particular fellow called the Registrar. And therefore, I

would want us to free ourselves from what is very colonial. Registration is a form of

control rather than a facilitation, and separate political parties from its historic society

that may be to be controlled. We are dealing with an instrument of democracy, we are

not dealing with a private society.

Prof. Yash Pal Ghai: Thank you for the views. We have had two hours of discussion, I

am not going to open up the fundamental principle. I too don’t see a consensus, but I see

a very substantial majority for giving the Electoral Commission the power to de-register

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and Judicial Review routine to the court. I am sorry we haven’t had absolute consensus, I

do see a very strong majority for the……

Can we move on then to the right to own a political party?

Com. Nunow: I think we should be clear at what level the elections, I presume all …..

(inaudible) so that we are not…

Prof. Yash Pal Ghai: Is that the case here?

Com. Nunow: Yes.

Prof. Yash Pal Ghai: I hope it is just.

Com. Nunow: It is good we …. (inaudible) if the way it is now, it is like a party requires

to field a candidate or candidates, not necessarily successfully. And any ….. (inaudible)

of a party can do that, so, are we saying, that if a party has had no successful….

Prof. Yash Pal Ghai: …… (inaudible)

Com. Nunow: So, fielding a councilor in one ward is sufficient enough to remain in

operation.

Prof. Yash Pal Ghai: I get your idea, but you must mention the particular party,

because one problem we have, there are so many parties on the register who don’t really

have any active role and…..

Com. Kangu: Mr. Chairman, the question Dr. Nunow is raising, is valid, because it goes

to, we have two ways we can use. We can distinguish elections, because we have

Presidential elections, we have Parliamentary elections and we have Civic elections.

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Now, the way we have formulated, we have just said elections, so, it is not clear which

elections we mean.

And then two, we have the question of …..

(inaudible talks by Commissioners)

Com. Kangu: Mr. Chairman, I was saying the second issue on this is, Dr. Nunow is

saying, a party will go and field some candidates in some obscure council, a candidate

who cannot win, and it will say, well, we fielded one candidate, so we should pay in the

fee. So, we must decide, do we want to say, they must have fielded and won some seats

or do we want to say, field candidates in Parliamentary elections, but not necessarily

civic.

But if we say Parliamentary elections, supposing a party has not been able to field

candidates in Parliamentary elections, but it has been fielding candidates in civic

elections, and in fact, even winning this. How do you go about that? So, we need to

come out clearly on the issue.

Prof. Yash Pal Ghai: Any suggestions?

Com. Muigai: Mr. Chairman, I think that goes back to how we can save political

parties. If they are as ……. (inaudible), it is suggested tools of democracy. Then even if

they field one councilor, they are still in business. But if, as tools of elections, and that is

limiting our perception of them, then we can de-register them because they have fielded

or they have not won. I would go for the former. Political parties are democratic tools,

and so long as they are playing in the game, whether they win or not, let them stay.

Com. Lethome: Mr. Chairman I would like to agree with Salome still, because here

there is a mischief that maybe your group wanted to address, and the mischief is to take

care of parties that just sit down, they are registered, they don’t do anything, they are

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busy bodies, a group of busy bodies waiting to be sold. And I think that mischief is taken

care of whether you field one candidate at whatever level. So, I think we leave it as it is.

The mischief will have been adequately taken care of. Thank you.

Com. Zein: Chair, I would like to suggest that the current formulation does not

adequately address the problem which they have identified. The history of this country

shows that, you won’t have a problem of people participating in elections. These parties

suddenly wake up from their deep slumber during elections and then go back to sleep

after elections. So the problem will not be, will they be able to field or not, they will get

enough people to field. I think the problem will be, how do you make active after

elections.

Prof. Yash Pal Ghai: That the general consensus is that we delete this bullet point?

John, you want to say something?

Com. Lethome: The first mischief is not taking part in the general election have been

taken care of by that bullet. But that mischief that has now been introduced by Zein, we

knew it has been there, but you have reminded him. We need to address that mischief.

Maybe now we need to formulate another bullet to take care of that mischief. How do we

make sure that parties are active, whether we have elections or not?

Can I suggest?

Prof. Yash Pal Ghai: Yes.

Com. Lethome: Maybe, let me hear other people then……(laughter)

Prof. Yash Pal Ghai: Charles?

Com. Maranga: Mr. Chairman, this is what I will continue saying. Your opening

remarks on political parties, you said very clearly that you want to include the democracy

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or democracy in this country, and you are saying people have a right to form political

parties, people have a right to freedom of association. The way they associate and

operate, is not supposed again to be limited. Mr. Chairman, I think, even political parties

as fulfilled all the criteria and has been registered, we should not have again another

clause, trying to de-register the same after somebody undertaking those tough conditions

and achieving them.

Mr. Chairman, there will be many reasons why a political party does not want to go to an

election. For one, a political party might be performing other functions like civic

education. A political party is not supposed only to be there for an election. So, I think

Mr. Chairman, it is unfair for that clause to be there. My only proposal is that, that clause

should be deleted, because, Mr. Chairman…..

(Interjection) Prof. Yash Pal Ghai: We know your point now, so….(laughter)

Com. Maranga: Let me qualify my point.

Prof. Yash Pal Ghai: Okay.

Com. Maranga: So, my strong point on this is that, this is not consistent with the

criteria you said for political parties.

Prof. Yash Pal Ghai: Hassan, Nancy and then John.

Com. Hassan: Mr. Chairman, unless those that own political parties, which are

somewhere and we want to save them, I think there is no need why there is this undue

notion not to register these political parties. If there is no other measure, what better

measure is there, to see or to engage how much a political party is interested in the

development of a people or a country, much more than being interested in the election.

This is a very important …. (inaudible) where, the same development work they are

going to do, is going to be determined the kind of government which is going to come out

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of that election, the civic elections, Parliamentary, Presidential, all determined in the

development they are going to do. So, that is a very big measure of knowing whether a

political party really is involved in development.

So, I don’t think there is any harm in retaining this de-registration by means of not……

because, it will form part of the other many conditions which we present out, either by

legislation or through this Constitution on how a political party will be de-registered.

Under …… (inaudible), they will still have the right to go for Judicial review, and it

appears that there are those who do not really understand what decisions will be

envisaged and then you fail to support our position, that the way a party feels that they

are being de-registered, they will still their right to go to a court of law to get usually

review for that Constitution. So, I think Mr. Chairman, we should retain this one. We

are really taking a lot of time on something which is very obvious.

Prof. Yash Pal Ghai: I have some other names. Nancy and John and then let us see the

end.

Com. Baraza: Mr. Chairman, I think we shouldn’t belabour the point. We should

retain this proposal. I think it will be compliance with whatever else we are suggesting

about political parties. We should retain that.

Prof. Yash Pal Ghai: John.

Com. Kangu: Mr. Chairman, when I introduced this paper, I noticed that the approach

of our committee was to recognize that political parties provide an avenue through which

citizens can exercise their right to assemble. But, I warned at that stage that our approach

is not to limit ourselves to the right aspect as the only role of political parties. We instead

said, we must identify other roles and functions that political parties play, before we can

place them in the governance scheme properly.

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And in our definition and functions, we came out clearly saying that, these are important

institutions that play a role in the governance scheme, and therefore, they cannot be

strictly approached from the right’s best perspective, they should also treated as

important institutions which must be well structured in the Constitution. So, attempt to

have them regulated and subjected to certain conditions are attempts that are stemming

from the position that we want them to play that function for which they are supposed to

exist, to assist in democratizing, constitutionalizing, and if possible, republicanising

governance.

And parties that are there, and are not contributing to the objectives of political parties,

must not therefore be allowed, simply because, they are an avenue for people to exercise

their rights of assembly. The people can find other ways of assembling, and in fact,

political parties are not the only way through which you can exercise the right of

assembly. If it were the only way, I would be able to say, you cannot restrict their

activities or in any way. But there are as many others, you can assemble through

religious organizations, you can assemble in a night club, you can assemble through or

underway, political parties are only but one way,………..

Prof. Yash Pal Ghai: It just seem to me that there is a consensus. Can we move on

quickly, because we really have more ground to cover today. The right to join a political

party. Zein.

Com. Zein: Thank you Chair. I think the bulletin which says, no one can be compelled

to join a political party is a good bulletin, but I would like to draw the attention of the

Commission to the last bulletin. I would suggest that we delete the word ‘full’ and

‘voting’, and we leave only ‘citizens can become members of a party’. I think “full’ and

‘voting’, draws a distinction under which a foreigner or others can become some form of

a member of a party, but I would like to restrict that to, only citizens may become

members of a party.

Prof. Yash Pal Ghai: Riunga Raiji and then Githu.

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Com. Raiji: Chair, it is not my intention to curtail debate, but I think on 9.2.4, appears

to me to be a statement of matters that I think are generally agreed, and unless perhaps we

feel very strongly, I was going to move that, unless someone has an objection to any of

those ones, then we move to the next one.

Prof. Yash Pal Ghai: Well, there is one objection already. So let us deal with that.

Should we delete ‘full’ and ‘voting’?

Coms.: Yes.

Prof. Yash Pal Ghai: General consensus, okay. Thank you. Yes, I hope so.

Com. Githu: I can understand why everyone should be free to join a political party, and

no one should be compelled, but then, I have a problem here of understanding, whether a

person can be denied a right to join a political party.

Prof. Yash Pal Ghai: Githu, ……… (inaudible) expecting him to come back to the…..

Com. Githu: That is the point I was coming back to. My feeling is that, the party should

be given the right to decide, to vote but also to address…… (inaudible). Otherwise, a

political party, (I hope Sir I have the floor), a political party is a voluntary association.

Nobody can be compelled to belong to it although it has been tried several times in our

history.

The contrast of that in my judgement, is that the political party must reserve to right to

admit only those persons who comply with its own internal criteria, provided however, it

does not use a known Constitutional ground. And for example, it would appear to me,

that a party cannot refuse a person to join because he is not a European for example. Or

cannot refuse a person to join on religious ground because he is not a Hindu, or Christian

or a Muslim, and so on.

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But a party may have its own manifesto which may require, for example, if there is a

party called the Socialist Party of Kenya, which I think there should be, it may require

those who of us who wish to join to subscribe to the tenures of mercisism and lemnism,

and it is not a non-reasonable requirement……

(inaudible comment by a Commissioner from the floor)

Com. Githu: Okay. And I think it is not a non-reasonable requirement because that is

what defines the essence of the party. I think at that point Mr. Chairman, which is the

only point I wanted to make, is well made out.

Com. Kangu: Mr. Chairman, we have talked in terms of a leadership code. We are

talking about a code of conduct. And in other places we have said, a person may be

barred from voting because of certain breaches. Now, while we should allow someone

who has committed such a serious wrong as not to be allowed to vote, to go and

participate in matters of a party is wrong. But that is one side of it.

On the other hand, look at the history we are coming from. We are saying, we want to

instill a certain quality of behaviour, certain values in the Kenyan people, and the past we

come from shows us that, today, someone will be in this party, he is thrown out for one

reason or another, or the whole country knows this is a thief, and the next thing you are

hearing he has been accommodated in another party, possibly because he can bring

money. We cannot allow this to happen in our country. (laughter) We must come out

clearly, we are saying political parties are very important vehicles in the governance

structure, and if we are going to demand certain standards in governance, we should not

allow people we cannot allow to participate in governance in domain, to have an

opportunity to participate in political parties which are the vehicles that produce those

who govern.

So, this rule should remain, and in fact we need to expand it by identifying more ground

on which people should not be allowed to participate in parties. The rule, the one that

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Com. Lethome raised, that people should not be deferred from belonging to political

parties. They must be, there are some people we should not allow. People are now……

(Interjection) Prof. Yash Pal Ghai: Let me see if I can list it ……………. (inaudible).

The question I heard was not that a person shouldn’t be free to join parties except, in fact

that, why should one apply to join a party. The question is, should a party be able to say

no to an applicant on the grounds that, it is as if doesn’t strive to the social objectives of

the party, etc, that is the question we are discussing.

Com. Kangu: Mr. Chairman what I am saying is this, parties should be free to accept

people, but the Constitution should be able to state, point out, certain people who cannot

be accepted even if the party wanted to accept them. (laughter) If we say, Githu is not

allowed to join any party, even if he was my friend and he comes to my party, I should be

able to say, my friend, the Constitution says no.

Prof. Yash Pal Ghai: What I would like to hear, what would be in the Constitutional

grounds, because we are talking about the Constitution. John please, clarify, through you

sir. Clarify for us, what Constitutional grounds can be used to deny a man or a woman

membership to a party.

Before you answer that, let us have the remaining speakers, because they are probably

speaking to this. Lenaola, Zein, Kabira and then back to John.

Com. Lenaola: My understanding Mr. Chairman is that, the bully is about conviction

for electoral flow, and de-deferment of a member, is that the person is a member of a

party, he commits some electoral fraud, and therefore, we are saying, for the period that

he has been barred ……

Prof. Yash Pal Ghai: Can we deal…. and then we will come back to that.

Com. Lenaola: Okay. Thank you.

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Com. Zein: I am thinking Chair, I would like bulletin one to remain the way it is. It

says, everyone is free to join a political party. I don’t think the formulation of that phrase

put an obligation on a party to take somebody. If it had been formulated in say, a version

like, everyone has a right to join the party of their choice, then that puts an obligation on

that party to accept this person. And I agree entirely with Com. Githu Muigai that a

political party should have discretion, either or ideology, on beliefs, for example, if you

have an environmental party, they would have the right to reject a person who owns a

company which degrades the party. But, I am saying, that the formulation in one does

not put any obligation in any party to accept. So it should be left like that, with the

provision that we understand what Com. Githu Muigai is saying.

Prof. Yash Pal Ghai: ……. (inaudible) Githu to say that, there maybe Constitutional

grounds prohibiting rejection. In other words it should say, that is a woman, and we

don’t like the men, they are not admitted, they should not take after

………………………. (inaudible) political parties now, and therefore the status. So, the

question would be, what are these Constitutional grounds on the basis of if you cannot

kick a person out. Should we have bit of discussion on that? But anyway, let us see what

Prof. Kabira would want to say, then…..

Com. Kabira: Thank you Chair. I actually wanted to help John when he was asked to

give ground for which somebody can be rejected, but I wasn’t sure and I wanted to know

something which is common practise. Should you belong to different parties at the same

time? Like we do. You have a card for DP and you have one for KANU, if you are

nominated today, tomorrow you produce the other card and go to KANU.

Now, Charles and Bishop have asked for the floor. Is it on this point or some other

point?

Com. Maranga: That point.

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Prof. Yash Pal Ghai: That point, okay.

Com. Maranga: I think, if the Constitution says that so and so is not going to be

allowed to join a political party, you will be interfering with the Constitution with those

respective political parties. I think that is a matter which should rest with the respective

political parties, rather than us regulating from the point of the Constitution. And that is

the practise, and it should remain so, and it should continue like that. We have the

experience. Thank you.

Com. Bishop Njoroge: Mr. Chairman, I just wanted to let the Commissioners know, I

applied to become a member of the Socialist Political Party International, and I was

rejected on the basis that I am religious. So, there was a requirement that I do not

subscribe to religion. I hope it will not be the same with us here, that a person can be

rejected from a political party for belonging to a certain religion. So, we should have

Constitutional conditions.

(inaudible discussions by Commissioners)

Prof. Yash Pal Ghai: Well, that is if we have a consensus, we keep the first bullet on

the sanctions that we are talking of that a person may try to join a party, no one can be

prevented from joining a party by its state or something.

We also accept that a political party may reject a person on grounds, we don’t need to

specify the ground, we can put it in different way by saying, a party may not reject an

application on this Constitutional ground. It should be in the equality provision and the

Bill of Rights that we have adopted, in other words on ground of age, sex and place of

origin, things like that, because these bodies do have a Constitution provision and need to

respect those provisions.

We didn’t say the common man can be compelled to join a party, to that I think, we can

just agree now, because a party can’t be forced to…..(end of tape) wants to take

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somebody, that person’s views… then the question that Com. Lenaola was trying to raise,

now I ask him to do that.

Com. Lenaola: Thank you Mr. Chairman, I am sorry I jumped the….

Prof. Yash Pal Ghai: No, it is fine.

Com. Lenaola: On bullet No. 3, on one hand we are saying at page 27, that one of the

conditions for a party to be registered, is that it cannot expel any member from the party

except for good reason, and after a few processes. And here we are saying that the

Constitution should pose on the party obligation to defer a member after completion of

electoral fraud. Why don’t we allow the party also, to internalize this mechanism for

discipline and not leave it to the Constitution?

Prof. Yash Pal Ghai: Can you re-formulate that.

Com. Lenaola: In fact my idea is that, we leave it totally, we just delete this point and

leave it, a party is to have internal mechanisms for discipline of members for whatever

ground.


Com. Raiji: I am persuaded by the argument by Com. Lenaola on the following basis.

A party will decide the kind of people it wants to attract to itself, and that will be the

basis of other parties to criticize and challenge it, if people of dubious character want to

associate themselves, so be it, let it be for the electorate to decide whether or not they will

subscribe to those values. So we delete the whole thing altogether.

Prof. Yash Pal Ghai: Let John have the floor and then Githu you will have the floor.

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Com. Kangu: Mr. Chairman, we cannot say in one brief that we are setting standards.

And then in another brief we are saying, political parties are free to take anybody, that

they will be sorted in the market place of elections and politics in the field. This is how

we are going to develop, we should not create room for dubious people to seek, to get

into government. We must close the door tightly. (laughter) Dubious people, people

on whom we have doubts must not be…. this is why people jump up and down, because

they know, even if you don’t accept me here, I will get nomination elsewhere or I will

jump somewhere. If we want to state leadership standards, we must start in the political

parties, and we must not allow some of these people in parties. These are the people….


Com. Githu: Mr. Chairman, my friend John Kangu is getting evangelical now

(laughter). I want to suggest that, something we have agreed upon for the whole week.

We want to have values in the Constitution that Sheikh Lethome would call cross-cutting.

If we have that value in respect of participation in elections, it should be a value that we

can also defend in respect of a whole range of other democratic activities.

To my mind, Mr. Chairman, a political party is a juridical person as well, is it not? It is

to enjoy vis-à-vis other persons’ rights. If we say that an individual has rights, a political

party must have rights. I am uncomfortable with the situation where we say, a political

party cannot reject a person. Even if the grounds of rejecting that person do not violate

any Constitutionally protected criteria, it would be absurd, which takes me to the next

point Mr. Chairman.

What John Kangu is suggesting also is unacceptable. That we can have in our country,

individuals who are barred from public life because parties are under Constitutional

obligations, never to accept them, because it is alleged by John Kangu, they are

undesirable. I think we must leave each party to judge on its own platform. There are

parties that say, we are the party of renewal, anybody ever convicted of corruption,

anybody who was part of the old regime, we don’t want him in our party. But there are

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other parties that say, come into our party and bring your money so that we can win

political power. We must allow those people, I am afraid, they would disagree with this,

there is a market place of ideas. We must assume the Kenyan people have the good

sense to make moral judgements. It cannot be for the Constitution to substitute its view

of who is good for that of the Kenyan people.


Com. Maranga: To the Chairman, there is no way you can give people fundamental

rights and other rights in a Constitution, and then you want to take them away on the

other side.

Mr. Chairman, political parties are organs, I think they are like a market place, anybody

can join, a thief, a fraud-star, or anybody, because the point is very clear, if you clear

them from political parties, they have a right to stand as independent candidates, what

will you do? So, there is no way, unless John Kangu is telling me to eliminate all the

thieves and everybody else from this country, it is not going to work. So, Mr. Chairman,

the point we are arriving at is very simple, it is not possible for us to put a Constitutional

provision that political parties should not accept so and so or should accept this and that.

I think let the political parties decide for themselves. If they want to be a political party

of thieves, so be it, if they want to be a political party of whatever, so be it, and you as

John, who is clear from thieving, then you can say, I am not joining that party. Thank

you. (laughter)

Com. Zein: Thank you Chair. My convenor, Dr. Githu Muigai is eloquent on his ex-

position of market places, but is very poor in his skills of reading people’s minds. On

this particular issue, I entirely agree with him, but for different reasons, I think on

previous pages, we are establishing principles of new process in the party, which

somebody has to go through before they are penalized.

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But more importantly, for the reasons which Dr. Githu gave yesterday, in terms of what is

the measure of punishment of collection offences we want to exercise.

And two, that is there a place for rehabilitation. And I am very sad that on this particular

question, I will disagree with my brother John and say, that we should leave room for

rehabilitation so that a person can go and exercise their political beliefs and persuasion,

and if he can influence others to vote for the calls they have, although their own voting is

limited by their acts under the Constitution, so be it.

Prof. Yash Pal Ghai: Let me put it this way. I think there is very substantial support for

deleting this bullet point, and so, if there are people who support the retention, they

should indicate that, but if they are saying this point should be deleted, then, they don’t

need to speak. This one, bullet point 3.

Com. Kangu: But the issue I raised here which was addressed eloquently by Githu is,

should parties be allowed to reject and accept. I think that is what I raised. Mr.

Chairman, bullet 3 does not address that issue.

Prof. Yash Pal Ghai: Yaah, but we have already summarized the sense of the house,

and I said that a party can’t be compelled to accept any applicant, but that a party cannot

deny membership on Constitutional political grounds. That has been accepted.

Com. Hassan: Mr. Chairman, for the ………… (inaudible), I am in the unhappy

position of having to agree with Dr. Muigai, for a young turk who has been considered to

be politically and economically conservative which alarms me. But, I think this

particular bullet must go with the following reasons.

Prof. Yash Pal Ghai: That you don’t need to speak.

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Com. Hassan: I wanted to add that, assume that the only function of political parties is

elections, because a person can still participate in a political party, without necessarily

having to go to vote.

Yaah, my point was that there is a consensus to delete it. So, only those were supporting

its retention should speak. Dr. Nunow.

Dr. Nunow: Mr. Chairman, I would like to draw the attention of the Commissioners to

9.2.8,

(Interjection) Prof. Yash Pal Ghai: Sorry!

Dr. Nunow: Which clearly answers this.

(Interjection) Prof. Yash Pal Ghai: Okay.

Dr. Nunow: Internal disciplining, the Constitution should require public to ensure

discipline, consistent with democracy, justice and the rule of law.

(Interjection) Prof. Yash Pal Ghai: This is why I am suggesting we delete and move

on.

Com. Wambua: But Mr. Chairman, now that this has been introduced by Dr. Nunow,

you are talking of somebody who is already a member who can be disciplined.

Com. Zein: I think the issue we have been addressing is a person who is seeking to be a

member.

(Interjection) Prof. Yash Pal Ghai: No, no. We have dealt with that.

Com. Zein: Okay, then that is fine.

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Prof. Yash Pal Ghai: Now, on point No. 9.2.5, let us move fast, because it is 6.15 p.m.

and we have to go through financial controls. It seems to be very straight forward, but

undoubtedly, some of you may have problems with one or more aspects of it.

9.2.5, no, I am saying that we still have to discuss the whole question of financial control.

So, I am urging you to try to move with some speed.

Com. Hassan: This is of course the national, if you are talking of the national votes cast,

I think 3% of votes cast is a little bit low, maybe you could take it up to 5%, I think 5% is

even better. Otherwise everything else I think it is okay, we should approve it.

Although again the question will come whether the financing will be before or after they

get votes cast, because….. In the question of the chicken and the egg, which one comes

first?

(inaudible debate by Commissioners)

Prof. Yash Pal Ghai: Some systems allow refund if you can achieve – Mr. Gicheru is

an expert on this question, do feel free to intervene if you have a point you want to make.

Mr. Gicheru: Mr. Chairman, maybe it might be of interest to know that last year, there

was a series of consultations among Members of Parliament, there was an inter-party

group which considered this question of funding of political parties, and they came up

with a formula, for instance, how much money should be allocated by the State towards

political parties, and it was agreed that the allocation should be 1% of the national

budget, and then this would be confined to only Parliamentary parties. That is, parties

which had representatives in Parliament and which had managed to get 5% of the total

votes cast in the previous general elections. So there are those two conditions. A party

now becomes a qualifying party.

How is this money distributed? It is distributed in two ways. First, on the principle of

equity. This means that 60% of that 1% of the national budget will be distributed equally

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among the Parliamentary parties. The other half, will be distributed according to the

principle of proportionality, that is, according to the number of votes secured by the

Parliamentary political parties concerned. So that is the formula concerning the funding

of political parties by the State and how it is supposed to be distributed. Maybe it is

important to note that point at this stage.


Mr. Gicheru: What happened is that, while negotiations were going on, I was requested

to draft a Bill, that is even before permission was obtained from the National Assembly to

introduce the Bill. So we had a very provisional Bill which I have here. Now, not long

ago, the National Assembly granted permission through the members concerned that

Musikari Kombo to go ahead and introduce the Bill. So, that is the position at the

moment.

Prof. Yash Pal Ghai: Okay, so Asiyo and Raiji, Nunow.

Com. Hon. Asiyo: Thank you Mr. Chairman. Mr. Chairman, I was just wondering

whether we could introduce some incentive here, for political parties who nominate

women? I wanted to know, this is being done in Senegal and other African countries, and

I believe, this will encourage political parties to nominate more women to Parliament.


Com. Raiji: Respect your Chair. I think this is one area where we must out of our way

to put some kind of a ceiling or a cap, because, I see this is another area of a possible

conflict of interest between the MPs themselves and the rest of the Republic, because it is

a matter that relates indirectly to their welfare, and one of their parties, and I hope

although, in principle we don’t like to write details. Perhaps, I am thinking Chair that, I

can see abuse coming in, probably you can see not exceeding, I don’t know like 1% of

the national budget is a lot of money, and I really think that probably, we need to

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intervene if the Bill has not gone through, so that, at least we can set a limit and the rest

we can work.

Prof. Yash Pal Ghai: But it will have gone through, we can over-right that by putting a

limit in the Constitution.

Com. Raiji: That will be beautiful.

Prof. Yash Pal Ghai: Salome?

Com. Muigai: Thank you Mr. Chairman. I want to agree with what Hon. Asiyo has

said, but also take it a step further and say that, when counting the MPs, if we could give

an extra point to the women MPs so that we can encourage the parties to nurture women

into becoming Members of Parliament who can actually win seats.

Prof. Yash Pal Ghai: Sorry, I didn’t get your point.

Com. Muigai: Mr. Chairman, I am looking at the second part of the 60% of the money

that is going to be given according to votes. I was looking at a way, taking up what Mrs.

Phoebe Asiyo said. A way that we can give an extra mark or affirmative action to parties

that have got women Members of Parliament, so as to ensure that parties don’t just

nominate women to get the money, but they also nurture the women so that they can be

able to win and sit in Parliament.

Com. Nunow: I don’t whether my Chairman we could comment on all the points. Mr.

Chairman, the second bullet, corporate bodies whether foreign or national, should be

prohibited from donating funds from other sources to parties. I am not sure whether this

is really useful to enhance the political parties, because, it is as if there are a lot of

corporate bodies or companies and organizations which are also very much involved in

the development of the country, and they would want to be involved in the elections by

supporting parties which they think support their goals or their views. And I think, apart

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from setting certain registration as to how the participants are…. how much money this

can be, the limit for example, especially from foreign companies, I don’t think we should

really prohibit corporate bodies in Kenya from helping political parties in elections.

And the last bullet, a formula similar to that for new parties should apply to independent

candidates. This is a very tight area. Independent candidates, Mr. Chairman, unless we

are going to form them into a group again at the national level, because each of them

have come from different constituencies or from different parts of the country. They

have stood on independent as Presidential, Parliamentary or Civic. Now, how are you

going to now make them into a group and give them a certain amount of money as

expense refund? I think, either we completely abolish and we should not say, there

should be no funding for independent candidates. In fact that will be even better,

because, I think it is going to involve a….. it is a form of restricting abuse of independent

candidates.

Prof. Yash Pal Ghai: Yes, for independent candidates will only get ………. (inaudible)

support if they win the elections. You are even opposed to that? The proposal here is

that independent should only get money if they win elections. You are opposed to ……

Com. Hassan: Unless they were Presidential candidates, and if he wins the elections,

then he is already the President of the country. But if it is a Parliamentary candidate, he

has only gotten his votes from his constituency, unless you are talking at a ratio of 5% of

the votes cast nationwide. But it is an MP who got maybe 61% or 60% of the votes in

his constituency, that will come to very small as a percentage of the national votes cast.

It will even be lower that the ratio but far much lower. So, I don’t know how you are

now going to give him money on the basis of the votes he received.

Prof. Yash Pal Ghai: Okay, yes, thank you.

Com. Zein: I am saying, for the Presidential candidate it will be different. A

Presidential candidate might get the 5% in order to qualify to be President. And I believe

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that if a Presidential candidate who is independent gets the 5%, should get the money to

popularize the policies, on the platform under which he has run on the ticket.

Prof. Yash Pal Ghai: Dr. Nunow.

Com Nunow: Thank you Mr. Chairman. I think I would like to start by saying that, I

tend to agree with principles laid down here, except that a few clarifications will do. For

instance, currently, people do not vote for parties, but they vote for nationalities. As it is

now, you hardly see people voting for manifestos or principles as much as that is what

my good friend Dr. Muigai could want us to believe. But, that being the case, are we

envisaging a situation where, in addition, there will be a column or a ballot cast for a

political party of choice. That is one.

Then, in the absence of that, the basis of computation now, how are votes computed?

Maybe Mr. Gicheru would clarify that, on what they have already computed. Non-

Presidential parties, the parties that have no Presidential candidates in the elections, were

the votes cast for its Members of Parliament of candidates for Parliamentary and civic

added together, presumably then, being the votes that I imagine were intended for the

party or what were the modalities by which these figures were arrived at.

And then the restriction of corporate bodies, that is the second main bullet, after state

funding, I think we need to make distinction. We need to say, in my opinion, it is

probably important to understand the principle behind it, and if I may read the author’s

mind, probably the intention was to avoid a situation where the candidates are run from

abroad by foreigners through funding. I think if that is the case, then, there are corporate

bodies owned by Kenyans, either fully or majority. So, shouldn’t we then set up

distinction clearly, that Kenya owns corporate bodies, and should be exempted from this

kind of thing, because, they should be able to promote the manifesto that they think are in

the interest of the public, and that are likely to differ the economic activities and the

economy at large. Thank you Chair.

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Prof. Yash Pal Ghai: It seems that we have…. I think we generally have consensus on

the desirability of sub-state funding. We have agreed that parties to receive …………..

(inaudible) have to secure at least 5% of the votes cast. We perhaps have less consensus

on the question of corporate funding, whether foreign or national, it seems to be some

support for lying domestic corporations, where you could find that, to contribute but not

for foreign corporations.

I think we should be… nobody else supported the restriction which is in the rules, but I

think we have to remember that in many countries, where corporate bodies have such a

massive interest on the electoral reserve. Maybe we need to be a bit careful. Perhaps the

compromise might be to restrict the national and contribution a corporation can make and

require that contributions should be disclosed.

Com. Kangu: To one point raised by Dr. Nunow, which I don’t want to escape our ….

Prof. Yash Pal Ghai: Yes, I was coming to that, but go ahead.

Com. Kangu: I was saying that Com. Nunow has raised a point of, when we say a party

that has got 5% votes, how do we determine that vote? And I think this is linked to the

MMP system we decided on yesterday. Even when we say MMP system, I think we

needed to come out clearly that the ballot paper will have two slots. You are voting for

an individual and then you also make a decision which party you are voting for. So that,

you could elect the MP for a constituency from one party, but when it comes to a party of

preference, you vote for a different party. I think the current situation that has caused a

lot of fights in our countries, that parties want to go on the basis of which party has how

many MPs in the house, and I think that is a wrong way to go about it.

So we say, when we will be.. if we approve MMP or if it goes through, it is the vote of

the MMP that will determine the percentage for funding, and not the number of MPs a

party has in the house.

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Prof. Yash Pal Ghai: I think that is right.

Com. Prof. Okoth Ogendo: Mr. Chairman. The two are obviously inter-alike. If you

are going to elections and people know that you are voting an MP and depending on the

total number of votes received by the party represented by all those MPs, there will be

additional allocation.

The ……. (inaudible) you are reinforcing, both the individual and the party, and you may

not mean to have two separate functions, because people will know that, the more MPs of

a particular party that I support which we vote in, the possibility that they are going to get

more MPs on MMP. So I think there are self-reinforcement.

Prof. Yash Pal Ghai: Yes. Mrs. Asiyo?

Com. Hon. Asiyo: ………. (inaudible) corporate bodies whether foreign or national, to

some of who pollute or just destroy our environment. If you were to allow them to

contribute to political parties, they would vie this government and hold this country

hostage. I think, then they should be vetted before they are allowed to manage, that we

allow them to give to political parties.

There is something we could say, despite the amount of money that corporations can give

domestic and then have a disclosure, and as a principle, and then, deal with that is a

legislation. However there is 1.2 to deal with – that is Mr. …….. (inaudible) proposal

that, supported by Salome that, parties which either nominate no men or no women,

which should get an incentive or bonus point, ……… (inaudible) Senegal, but as a matter

of principle are we supporting it? Yes John.

Com. Kangu: Mr. Chairman, I don’t think we should say parties which nominate.

Because then, they will go and nominate women where they know they cannot win. Let

us say, parties that bring more women to Parliament can get more.

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Prof. Yash Pal Ghai: Yes, sorry.

Mr. Gicheru: I think you asked about how the 5% is calculated? Okay, according to

the formula agreed by the Parliamentarians. It is 5% of the aggregate of the votes

variably cast for the parties that participated in the last Parliamentary and Presidential

elections, whether or not they elections for President was held, otherwise, than in a

general election. So you are taking into consideration the total number of votes cast for

both Parliamentary and Presidential elections.

There was another point concerning the donations. According to the proposal here,

donations can be accepted from an individual registered in an electoral register, registered

under the Companies Act or incorporated within the East African Community, which

carries own business in Kenya, also a registered party, forcefully as a trade union

registered under the Trade Unions’ Act, then any other unincorporated association of 2 or

more persons, which carries one business or other activities wholly or mainly in Kenya,

and whose main office is there, that is in Kenya. Or any international organization of

which Kenya is a member.

Thank you very much. I think we should keep in mind this one of course, regulations or

proposals by a party and they have an interest in accumulating the resources, we may

have this in perspective on it.

But I think we have broadly agreed now on this. I would like to at least finish this before

we adjourn. So can we just go on to 9.2.7. 9.2.8 we have also agreed, is that right? 9.2.9

seems…….

(inaudible debate by the Commissioners)

Prof. Yash Pal Ghai: No, Githu has the floor, please, let him speak.

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Com. Githu: Mr. Chairman, the question in bullet three, which is, Cabinet Ministers

shall be appointed from outside Parliament. I think that is an issue we could pend

because……

(Interjection) Prof. Yash Pal Ghai: It is coming up in the systems of government.

Com. Githu: Yaah, it will come up later, but other than that, I have no other comment

there.

Prof. Yash Pal Ghai: Thank you. So I take that as approved. Defections, I think we

have already had a discussion on this, and, I think we had agreed on that. Political

parties is basically, what we are doing, we are only just setting out the principles…..

Com. Kangu: …… (inaudible)

Prof. Yash Pal Ghai: Okay. Well thank you very much.

(inaudible comment by a Commissioner)

Prof. Yash Pal Ghai: Yes, indeed and…. Thank you. (clapping) I would like some

guidance on what we do now. I had hoped myself that we would have gone to at least

financial control today, I know I put Dr. Nunow a lot of pressure to get this paper out on

the expectation that we would be able to discuss it today. But I realize it is late and

numbers are …. (inaudible), but we also have tomorrow to start dealing with systems of

government. We still have quite a number of papers to go through.

So I was wondering what your suggestions are about whether we can meet later today or

that we meet at 8.00 a.m. (sharp) tomorrow. I also would like to discuss with you

whether you think we could not necessarily have a rest-day on Saturday, but don’t have a

formal meeting, but we meet on Sunday and probably some committee work we can do

on Saturday, but there is some work to be done on Saturday, but if you want to work on

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Saturday, we could discuss that, but I wanted some guidance so that we can organize…

we all hope for that by the end of the weekend, we will have gone through every single

paper and make recommendations so that the draft persons can proceed, and the editors

can proceed with finalizing the reports of the committees.

Nancy?

Com. Baraza: Mr. Chairman, this, we should all appreciate are unusual circumstances

under which we should work and we are foregoing our Sunday and our brothers and

sisters can forego their Saturday, and we shall beg for forgiveness from the Lord. I think

these are very unusual circumstances and we must appreciate.

Prof. Yash Pal Ghai: Please wait your turn. Raiji.

Com. Raiji: Thank you Chair. Two things. First, I think we need to appreciate the

patience of the Commissioners who are already for the whole day, it is a very good sign.

Secondly, Chair, I think, with regard to Saturdays and Sundays which are days of

obligation for Christians, different sects, I think we all understand the urgency and the

circumstances under which we are to work. We respect people’s religious rights. I

propose that we schedule a meeting, and those who feel that on account of religion, they

may not be prepared to work on those days, then perhaps we will excuse them, but I think

we should not place an obligation on those who are prepared to forego their rest day in

order to accomplish this task.

Secondly the other point, Chair, is that, I think more could be done in speeding up the

process of our deliberations and maybe if we could do that, and one way I see, maybe we

could give those who are presenting the papers a fixed period the way we were doing the

hearings, say 10 minutes to introduce the paper, and then we go say, recommendations

page by page, perhaps those who have certain things who object to isolate those ones and

discuss them so that we can move a little faster. But really, I think I agree that if we have

to finish this task, even in the next four weeks, we certainly will need to work under very

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unusual circumstances or hours including nights. I for one would probably even think

that working at night will be a preferable alternative. Thank you.

Prof. Yash Pal Ghai: Lenaola?

Com. Lenaola: Thank you Mr. Chairman. I understand of course the sensitivity in

which we have dealt with matters before. In fact we have discussed questions on

Saturday, about six times to my re-collection. Let us understand what it means to be

S.D.A. especially. I think they have made the point very many times before. A

compromise would be, that we sit in committees on Saturdays, but definitely sit probably

formerly on Sunday afternoon, and also try and work late on the days to come.

Obviously, the way we went yesterday and today, and the papers which are remaining,

we cannot finish even if we try tomorrow, we cannot finish work by tomorrow. So let us

be realistic.

And two, I think we need to manage our time better like we have the last three days. So,

that really is what I had.

Prof. Yash Pal Ghai: Thank you. Let us have Githu and then we continue round so we

go this side of the table.

Com. Githu: Mr. Chairman, this is an extremely sensitive matter, yet, because the

nation has entrusted us with even more sensitive matters, we must have the courage to

confront it as Lumumba would remind us, fairly and to the best interest of all persons. I

cannot possibly agree with Isaac Lenaola when he says, we cannot work on Saturday,

because we have three or four S.D.A. members, but we can work on Sunday when we

have another seven or eight or ten or twelve who would like Sunday off, and we can work

on Friday although we have our Muslim brothers and sisters and so on.

We have been reminding ourselves the whole day that we want a principle that applies in

every situation, not a principle that is isolated. The right that we want to protect is for the

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conscientious believer not to be compelled to work. If I don’t come on Sunday, Sir, I

hope nobody will come to my room to bring me here. But I cannot possibly suggest to all

of you, if you have a quorum, that you should not proceed. I reserving my right when I

come on Monday, to raise any issue that I feel I would have raised had I been present.

Prof. Yash Pal Ghai: Perhaps they could raise it in written form before since all the

papers have been distributed or will be distributed by tomorrow. Anyway, let us go

down this way. Yes please.

Com. Hon. Asiyo: Mr. Chairman I agree with Dr. Githu, that we should go ahead and

meet. For me I will not be available on Saturday, but the whole day Sunday, even

Saturday night, I will be available to work.

Com. Hassan: Mr. Chairman, I was going to suggest also that, I think in view of how

we are going, I don’t think we also want to compromise the quality of the work we are

doing. You have reminded us several times that ……(end of side A) and even if we have

to work at night, and I agree with Com. Raiji, that we may consider the possibility of

coming back after dinner from maybe eight o’clock, and being up until 10.00 p.m. or

11.00 p.m. That is one possibility we could think of, especially now that most of the

reports from all the Thematic Taskforces are all about to come out, and we have gone

through them or we are still going through them, and we must need a lot of time now to

read them at night because we are really going through them.

But, for the S.D.A. colleagues, we understand they have very strong position on this, and

I know the fact that they are being allowed to stay away, it is not usually very useful

because, they will have made better contribution when they are present the time when the

report is being discussed. That is for a fact, that, even if they come back later the

following day and make their comments, it will be as good as it would have been when

the thing was being discussed. But I think in this particular situation, we have an

emergency to deal with, I think they should be able to understand the situation under

which we are operating. But it is good since we have been able to compromise and say,

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we only break from twelve and come back at two o’clock, and I think we have been able

to maintain that.

But I think also for the Catholics and the other Protestants, they should also be able to

compromise and agree that on Sunday, the church service ends at ten or eleven. We

should come back after lunch and simply do the work.

Com. Zein: Mr. Chairman I think I would like to agree with colleagues who have

spoken, and of course, you know how I take the issues pertaining to Religion. We

sympathize with our brothers and sisters from the S.D.A., but, where I come from, we

say, “talking in venacular”. Because of necessity, something that is prohibited is allowed

to the extent of that necessity. It is because of necessity that we are compromising maybe

Religion and other issues. So, I would really appeal to our S.D.A. brothers, that for this

one weekend, at least we give it because of the emergency that we are facing or the

urgency of the work.

Com. Maranga: Mr. Chairman, that position will not be compromised, and I want to

put it here, we are also part of the Commission, the decisions which are made on these

reports, we need to participate. There is no way we are going to exclude anybody from

this report writing. One of the issues which is before court, is simply the same thing.

That some Commissioners have been excluded. Let us not add a problem on top of

another one.

Mr. Chairman, on that basis, we should not, also, say that we are going to meet at night.

There are Commissioners who don’t stay here. Not everybody who stays here…

(Interjection) Prof. Yash Pal Ghai: That is through choice. Everybody, reason for

coming here, we could work through the night.

Com. Maranga: Mr. Chairman, I am just suggesting. If we are meeting over the

weekend, then let it not be a Plenary. Let it be committee meetings, where there are no

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substantive decisions, but we are taking decisions over the weekend, Mr. Chairman that

will be unacceptable.

Com. Prof. Okoth-Ogendo: First of all Mr. Chairman, let me make the point I have

made before. The essence of religious freedom is that you cannot be compelled to do

anything that is against your Religion. It is not that you can use your Religion to compel

other work not to work, that is the first point.

The second point I want to make Mr. Chairman, on Monday, when we came here, we

passed a document called “Procedure Rules for Decision-Making at Commission

Meetings”. Rule 4e says, “weekend meetings, night working sessions and meeting

during break maybe held at the discretion of the Commission”. So, that is a position this

Commission has already taken, that we can have weekend meetings, and we are

competent around this table to decide whether or not we are going to have meeting this

weekend.


Prof. Yash Pal Ghai: Pastor has the floor, and then I think Kangu.

Com. Pr. Ayonga: Mr. Chairman, I had thought earlier that we had resolved about this

matter. But it keeps on coming from time to time, and I am not trying to preach to

anybody. I think we should respect the faith, the beliefs of other people. I remember for

the first time, hearings at Garissa, where the Muslims told us that you have come here

during a wrong day, and next time, don’t try to come here. I loved that I respected what

they said. There is nothing here to sympathize with S.D.A. believers, there is nothing to

sympathize about. It is faith, you can go ahead do what you want to do, and we are not

going to evangelise for someone to say, this is a national day, and yet we say in our

Preamble, “in God, we trust”. We are contradicting ourselves.

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I think, I am becoming a little bit suspicious, in that, this matter was never resolved, but I

would pray, that those of you who want to meet during the weekend, go ahead, do so, but

not at the expense of the S.D.A., and please, let none of you sympathize. It is faith, it is

believe and nothing can change my belief. Thank you.

Prof. Yash Pal Ghai: Kangu? Charles please, don’t…..

Com. Kangu: Mr. Chairman, I will sympathize even though….(laughter) because

sympathy is not asked for, it just comes out. I want to grant those sympathies, and wish I

could help, but I think, we need to find a way to put in more work and at the same time,

respect the faith of our brothers. My mother brought me up in church, Christian faith,

and I grew up to learn that in fact Christians ….. (inaudible) is a very understanding.

That is how I grew up to know God, understanding God. I am sure we can understand

the position of our brothers. I am pleading with you kindly, come on Saturday, let us

work.

Prof. Yash Pal Ghai: Dr. Nunow you had your hand up?

Com. Nunow: Mr. Chairman, I think, matters of religion are quite sensitive. My major

concern is, we need and people to emphasize in the whole process, we need a situation of

consensus believe, so that no stage in the process, do we have people being left behind,

unless they deliberately choose to do so.

Secondly, we need that consensus for expeditious work (finalization process). In my

opinion, if we have this consensus during the debate of the national report materials, we

will have it much faster at the Draft Bill level, because, it will be extraction of the main

report, and people will have exhaustively debated. That is the first thing.

Secondly, the S.D.A. adherers are in the minority in the Commission. They are four

members, and that is in itself an additional element to look it. It is important that we do

the work, no doubt about it, and I would at this point suggest that, we designate upto ten

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o’clock in the evening as working time, so that we make up. It is too easily, because that

way, you have made up almost for the day. We shouldn’t focus on this particular day.

Let us meet after dinner – 8.30 p.m., sit up to 11.00 p.m. for today, and see how much we

can catch up, based on the other times left, rather than antagonize anyone of us. Except

for Fridays, Muslims break from say 12.00 p.m., from 12.00 p.m. to 3.00 p.m. Those

three hours are sufficient for their obligations. Saturday is a prayers’ day for the S.D.A.s,

and they stay, and they have continue to stay the whole day. Sunday is prayers’ for the

other Christians, and they usually need morning sessions only. So, why couldn’t a

formal Plenary of the Commission work Sunday afternoon? Have committees and

Thematic Taskforces to finalize their work on Saturday, as they deem fit, and let us meet

late evenings of today and tomorrow, and we will have gone far. That would be my

suggestion and a compromise position.

Com. Wambua: I think Mr. Chairman, I wouldn’t say more. That is a compromise. We

are allowing the Muslims to pray on Friday, we are allowing S.D.A.s to pray on

Saturday, we are other Christians to pray on Sunday, we are not leaving anybody behind.

That is a compromise situation, let us save time by working in the evening, let us save

time by coming here at 8.00 p.m., like some of us have done the whole period we have

been here, instead of starting at 9.30 p.m. Just compromise and work as hard as we

should.


Com. Kabira: I think I tend to agree with the compromise position, but, probably, ask

that today will not be possible because other people don’t know. The ones who are not

here, who have gone. They don’t know we are meeting to-night. So, maybe, there isn’t

enough notice. But we can do it tomorrow and the other days and the whole of next

week.

Prof. Yash Pal Ghai: Sunday night is okay?

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Com. Raiji: I stand to be corrected by I think, even the S.D.A.s on Saturday evening,

they will be released from the obligation.


Prof. Yash Pal Ghai: Okay, we cannot go to-night, but we can go tomorrow night, we

can work on Saturday night.


Prof. Yash Pal Ghai: Sorry, Salome you have the floor. Listen to her.

Com. Muigai: Mr. Chairman, the Sabbath starts tomorrow at sunset, Pastor Ayonga,

when does the Sabbath start? Tomorrow at sunset?

Com. Pr. Ayonga: After sunset.

Com. Muigai: After sunset. So, we cannot work tomorrow night. However, it ends at

sunset on Saturday. So, we can meet after 7.00 p.m. on Saturday night, we can meet the

following Sunday and work at night.


Com. Muigai: Ooh, sorry. So we can pray on Sunday morning until what time, 11.00

p.m. So we can meet at 2.00 p.m. on Sunday and work until 10.00 p.m. and then that is

that. Every other day we will sit at 8.00 p.m. on Monday and work till 10.00 p.m.


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Prof. Yash Pal Ghai: Commissioners, I want to announce that we shall meet tomorrow

at 8.00 p.m. (sharp), we will start our day with reports from Dr. Nunow’s committee. I

think we have the paper on “Financial Controls”, we have on “Natural Resources”, we

have on “Science and Technology”, we have “Intellectual Property”. I don’t know when

your last paper will come.

Response: We will circulate it tomorrow.

Prof. Yash Pal Ghai: Tomorrow? It is all in one folder. Then I suggest we definitely

finish the presentation from that committee tomorrow, working diligently in the way it

was suggested. Look at the papers, they will be with you for at least twenty four hours,

underline any points you will certainly raise and raise them, otherwise we will assume,

unless you raise an issue that you expect. I would like to start before the end of

tomorrow, with one of the papers from the committee on “Systems of Government”,

maybe the one on “Devolution” and we will probably adjourn at 6.00 p.m. or whatever is

the hour that the Sabbath begins. Is it 6.00 p.m. Pastor, or?

Com. Pr. Ayonga: 6.00 p.m.

Prof. Yash Pal Ghai: Ooh 6.00 p.m. okay. So we will adjourn at 6.00 p.m. on Friday,

then we will meet at 6.00 p.m. on Saturday and continue with the papers from the

committee on “Systems of Government”. Then we will meet on Sunday at ….. Saturday

we will go on till 10.00 p.m. (6.00 p.m. – 10.00 p.m.), and then we will meet at Plenary

on Sunday at 2.00 p.m.


Prof. Yash Pal Ghai: That is right. That is why I am saying on Saturday we will meet

at 6.00 p.m., gone on till 10.00 p.m. On Sunday, we meet at 2.00 p.m. and go on to

10.00 p.m., and by that time, we trust we shall have been through every single paper.

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And the committees which have yet to release the papers, please take time to finalize the

draft and let us circulate everything tomorrow.

I thank you very much for your patience and thank you for very interesting set of debates

today, we wish you a calm evening and enjoyable dinner.

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