katibainstitute.orgkatibainstitute.org/Archives/images/CKRC/CK/Verification Proc...

CONSTITUTION OF KENYA REVIEW COMMISSION(CKRC)

Verbatim Report of

VERIFICATION OF THE DRAFT CONSTITUTION

CHAPTER 14, DEVOLVED GOVERNMENT

HELD AT LANDMARK HOTEL, NAIROBI&

CKRC BOARDROOM, KECOM HOUSE

ON

27.08.2004 and 31.08.04CONSTITUTION OF KENYA REVIEW COMMISSION

PROCEEDINGS OF THE VERIFICATION OF THE DRAFT CONSTITUTION HELD AT LANDMARK HOTEL, AND CKRC BOARDROOM, KENCOM HOUSE

ON 27 TH AUGUST 2004 & 31.08.04

Present:

of 271Last printed 9/24/2004 02:39:00 PM

1. Mrs. Abida Ali-Aroni - Chairperson2. Mr. Zein Abubakar - Commissioner3. Pastor Zablon Ayonga - “4. Mr. Mutakha Kangu - “5. Mr. Domiziano Ratanya - “6. Dr. Charles Maranga - “7. Prof. Wanjiku Kabira - “ 8. Bishop Bernard Njoroge - “ 9. Dr. Mohammed Swazuri - “10. Mr. Paul Wambua - “ 11. Ms. Kavetsa Adagala - “12. Dr. Phoebe Asiyo - “ 13. Mr. Ibrahim Lethome - “14. Dr. Abdirizak Nunow - “15. Ms. Salome Muigai - “

Secretariat Staff in Attendance:

1. Pauline Nyamweya - Deputy Secretary, Research & Drafting2. Jeremiah Nyegenye - Draftsperson3. Ndoria Gicheru - Draftsperson4. Eunice Gichangi - Programme Officer5. Charles Oyaya - “6. Samuel Wanjohi - “7. Irungu Ndirangu - “8. Fred Oundo - Assistant Programme Officer9. Fidelis Wangata - “10. Steve Mukaindo - “11. Geoffrey Mosoti - “12. Noor Awadh - “13. Patricia Mwangi - Verbatim Recorder14. Jacob Ondaro - IT15. Brian Anguba - Support staff

The meeting was called to order at 10:15 a.m. with Commissioner Abida Ali-Aroni in the

Chair.

Com. Zablon Ayonga: Watu wote wameingia.


Com. Abida Ali-Aroni: Tupatie maombi as they take their tea.

Com. Zablon Ayonga: Basi nangojea wanaoketi waketi, kwa uzuri lakini. Tuombe.

Mungu Baba yetu uliye mbinguni, tunakushukuru kwa kutuleta hapa tena na kutupa siku ingine

ya kukufanyia kazi na kufanyia Wanakenya kazi. Tunaomba kwamba utubariki, utupe neema

yako ili uweze kutawala mioyo yetu. Tunawaombea wote ambao hawajafika hapa kushirikiana

nasi na pia tunashukuru kwa wale ambao wamefika. Kazi ile ambayo iko mbele yetu, tunaomba

kwamba utusaidie ili tuweze kuifanya kwa uzuri. Walio na shida mbalimbali, wengine wana

misiba, tunawaombea kwamba uwape faraja. Kwa hivyo, wale ambao watatuongoza siku ya leo

katika kikao hiki, uwe pamoja nao na sote tushiriki ipasavyo. Haya twaomba kwa jina la Yesu,

Bwana wetu, Amina.

Com. Abida Ali-Aroni: Asante Pastor. There has been a suggestion that we proceed to look at

the summary of the decisions that were made yesterday and if there are any controversial issues

we could leave them for later on. This is because the summary is a summary of issues that we

deliberated and exhausted yesterday and we are simply verifying the work of the Secretariat at

the moment. Zein.

Com. Zein Abubakar: Madam, yesterday Commissioner Lethome who was the Session Chair

begged people to work without a quorum. He said that when we come to verifying, we will make

sure we have a quorum I may suggest that we go ahead and go to Devolution and then we can

verify together with this one. We just go like yesterday so that we go through the session on

Devolution but when we are verifying the decisions, we do it when we have a quorum Madam.

Com. Abida Ali-Aroni: Professor Kabira.

Com. Wanjiku Kabira: I want to support what Zein is saying because when we are verifying,

we are actually confirming those decisions and it would be good for us to confirm those

decisions when we have quorum. But for the discussion and presentation on Devolution, we can

go ahead and then we can go through the summary of decisions for Judiciary and Devolution

together.


Com. Abida Ali-Aroni: Kavetsa.

Com. Kavetsa Adagala: I think Chair, it is important to record the unfairness of other

Commissioners listening. Someone presents, others listen and then they are not here to listen to

others. It is unfair. It is a matter of the heart and conscience but it is unfair.

Com. Abida Ali-Aroni: So, can we have Professor Kabira and Kangu come up here?

Session Chair - Com. Mutakha Kangu

Rapporteur - Com. Wanjiku Kabira

CHAPTER 14 - DEVOLVED GOVERNMENT

Com. Mutakha Kangu: Ladies and gentlemen, we are now moving to Chapter 14 that is in the

document of 23rd on devolved government. In your document, it starts on page 85 and it has

corrigendum-- At page 89, not 85 and in the other file, the pink file, we have a corrigendum

which must be looked at alongside the document of 26th. So, I will ask my colleague Kabira to

lead us through the Articles.

Com. Abida Ali-Aroni: Is it 85 or 89?

Com. Mutakha Kangu: 89.

(Inaudible comments on the floor).

Com. Wanjiku Kabira: There are so many documents. So, give me one second.

Com. Mutakha Kangu: In the document of 23rd, the first Article is 206 and that corresponds

with Article 231 in the 26th document. 206 (1) (a) corresponds with (1) (a), (1) (b) corresponds,

(1) (c) corresponds and (1) (d) corresponds to (1) (f). (1) (d) corresponds to (1) (f). (1) (e)


corresponds to (1) (d). (1) (f) corresponds to (1) (e). (1) (h) corresponds to (h) and sub-article (2)

corresponds to sub-article (2). Is that okay?

Com. Wanjiku Kabira: It is okay. Basically we can say that all the issues in the document of

26th are properly covered in 206.

Com. Mutakha Kangu: Any comments? Because on our side we are saying we are okay.

A Commissioner: (Inaudible).

Com. Mutakha Kangu: Fine. So, we verify and confirm that one?

Commissioners: Yes.

Com. Mutakha Kangu: Then Article 207 corresponds to Article 7. You will have to go back to

Article 7 in the document of 26th. 207 (1), go to Article (7), the document of 26 th February.

Article (7) on Devolution on page 4 of the document of 26 th. Article 207 (1) corresponds to

Article (7) (2). 207 (2)--

Commissioners: No, they are different.

Com. Charles Maranga: Article?

Com. Mutakha Kangu: 207, that was picked from (7). Article (7), leave out sub-article (1).

Then work from sub-article 2, 3, 4, and 5. They are the ones whose essence was captured in 207.

Com. Wanjiku Kabira: Article 3, 4, and 5 of Article 7 are captured as sub-article 2, 3, and 4 of

207 in the 23rd.

(Inaudible discussion on the floor).

Com. Wanjiku Kabira: Okay. Do I repeat it again?

Com. Mutakha Kangu: Okay, let’s hear--


Com. Mohammed Swazuri: I think you should follow what we have been doing. Tell us Article

207 in the 23rd Draft, 207 (1), corresponds to – what you have been doing – corresponds to that.

Or if it is not there, tell us where it is. Article 207 (2), corresponds to whatever there. But if you

tell them, Article (2), (3), (4), (5),--

Com. Wanjiku Kabira: Okay, we will repeat it again.

Com. Mutakha Kangu: Fine, we have got that. My colleague will lead you.

Com. Charles Maranga: (Inaudible).

Com. Wanjiku Kabira: You want us to tell you to tell us, because that is Devolution now. We

will give you the power to tell us.

Com. Mutakha Kangu: Let us proceed. Maranga was out of order but I was just lenient. So,

Kabira proceed.

Com. Wanjiku Kabira: I think I understand what Swazuri is saying, that we should begin with

23rd, then look for the Article in the document of 26th. So, we are telling you that Article 207--

Forget (1) for the time being. We want you to look at (2), sub-article (2) which corresponds with

Article 7, sub-article (3). It is the same. Then 207, sub-article (3), corresponds with Article 7,

sub-article (4). Then 207, sub-article 5 corresponds only - reformulated - to sub-article 5 of

Article (7).

Com. Abida Ali-Aroni: There is no sub-article (5) in 207. What are you looking at?

Com. Wanjiku Kabira: No, Article 7-- No Article 207 (4) corresponds to (5) of Article (7). So,

we have covered those three Articles. Sub-article (1) of 207, there is a corrigendum, somewhere

in your file. There is a corrigendum. But for that one you do not even need a corrigendum, you

know.


Com. Kavetsa Adagala: You know, Chair--

Com. Wanjiku Kabira: Kangu.

Com. Mutakha Kangu: Proceed.

Com. Kavetsa Adagala: Have you already left for Nakuru?

Com. Mutakha Kangu: No, I am around, I leave in the evening.

(Laughter).

Com. Kavetsa Adagala: You know, let us not proceed that way, especially this one, we want to

see where it is and what it said - the 207 (1). So let her just go meticulously and when we-- In

fact we have no reason to discuss (2), (3) and (4) if we have not discussed (1).

(Searching for Corrigendum).

Com. Wanjiku Kabira: It should be the corrigendum on Devolution. You have? Have you

found it?


Com. Wanjiku Kabira: No, can we suggest that we leave it pending and then we come back to

that sub-article? Can we agree on that? Because it kept coming and disappearing and being taken

back to the Secretariat and disappearing.


Com. Wanjiku Kabira: I am not saying we should not see it. I am saying instead of spending

the time on that particular sub-article, we move on and-- Menach is looking for the corrigendum.

Is that okay? Because it is not going to affect the other Articles.


Com. Mutakha Kangu: Okay, let us pend the Article and then move to the next, we will come

back to it after we have traced it.

Com. Wanjiku Kabira: It is a sub-clause, it is not the Article. It is the sub-clause that we are--

A Commissioner: Paragraph one?

Com. Mutakha Kangu: Yes, paragraph one.

Com. Wanjiku Kabira: Yes, paragraph one. Between Wangata and Menach, they will get the

corrigendum. So, we move on to the next one.

Com. Mutakha Kangu: Let us move on to 208.

Com. Abida Ali-Aroni: I have a question.

Com. Mutakha Kangu: Yes, Chair.

Com. Abida Ali-Aroni: I have a question. I just need a bit of explanation. Now, I remember

Kangu fighting very hard to have this Article where it was originally. It has now been moved

from Article 7 to 207, are you comfortable with that? Because you wanted the principles

embedded in the Constitution from the onset. But now you seem to be comfortable that it is

towards the end. Are you happy with where it is? Do you think it is well captured and covered?

Com. Mutakha Kangu: Well, after we went through the document, we agreed that we are

happy with the fact that the principles are in the document.

Com. Wanjiku Kabira: Now, I have the-- Thanks Menach, I will give it to you so that you can

look for the other things. I have the corrigendum; I do not know whether it is distributed. I think

it may be part of our documents. Corrections to Chapters 1, 2-- Yeah, we have it. This is the

corrigendum that we were discussing in Mombasa, signed by Professor Okoth Ogendo, dated


March 8th. In that corrigendum on page 4, Article 7, it says, Devolution and sub-article (2) says

that the district is the principal level of Devolution. Can you see it?

Com. Abida Ali-Aroni: The one reading Chapter 2.

Com. Wanjiku Kabira: Yeah, the one reading Chapter 2, the Republic. Below that we have

Devolution, Article 7, sub-article (2), which is now sub-article (1), in 207.

Com. Mutakha Kangu: If you check your corrigendum, there is a letter, then the first page is

page 2, then the second page is page 4. In your file, where the corrigenda begins, they have a

cover letter, signed by Professor Okoth Ogendo, then the first page is page 2 and the second page

is page 4. So, look at that page 4. Kavetsa, you had your hand up.

Com. Kavetsa Adagala: Yeah, to follow up on Abida’s question, may be Jerry could tell us the

shift. Because I remember we spent a lot of time discussing that this should be at the beginning

in the constitutive process. So, if Nyegenye could tell us why they did it.

Com. Mutakha Kangu: May be Kavetsa, before we address that question, can we first settle the

question we were trying to pend, now that we have that Article? Anybody who wants to

comment on that?

Com. Kavetsa Adagala: The one of the corrigenda?

Com. Mutakha Kangu: Yes. If there is no comment, then can we hear Nyegenye?

Jeremiah Nyegenye: Thank you, Madam Chair. The first Chapter is dealing with the

constitutive process whereas the description of which level of Devolution is a principal level was

felt properly belonged to Devolution. When you are looking at Devolution, then you need to

understand which level of Devolution is the principle level. It was felt that really-- It actually

belongs there. If you went into the Constitution to look at Devolution, one of the questions you

would encounter or you would think about is, which is the principle level? And it would be good

if you found that there.


Com. Mutakha Kangu: May be I need to add, when we discussed with Wanjiku, we decided

that, as Jerry says, the creation of the levels of Government is part of the system of constituting

the State and the Government. That the Government is constituted at four different levels. But

then when you come to the principles of Devolution, we said it is okay that they should be dealt

with within the Chapter that is dealing with Devolution itself. So, in our own discussions, we

thought we had no problems with the principles being placed in the Chapter on Devolution.

Kavetsa still has something?

Com. Kavetsa Adagala: (Inaudible).

Com. Mutakha Kangu: Okay.

Com. Wanjiku Kabira: I was going to explain that that corrigendum-- You will notice that

Article 7 had sub-article (1), which Nyegenye is saying remains in the Chapter on-- What was it?

Reconstituting the State and so on. Therefore, that sub-article became sub-article (6) on

Devolution, under the Republic. So, the Article we presented in the corrigendum has been

divided into two, part of it remaining as sub-article (6) and the other one moving to the Chapter

on Devolution. Does that satisfy Kavetsa?

Com. Mutakha Kangu: (Inaudible).

Com. Kavetsa Adagala: Not the Secretariat now but the shifting over to us. I feel like we have

kind of not been courageous. This partly is solved by that Article being Article (6). Isn’t it?

Commissioners: Yes.

Com. Kavetsa Adagala: But you know, we started off with, “Kenya will be a parliamentary…”

We really don’t have a definition for this Kenya. We even tried, in Culture, to put a philosophy

there, which of course was shot down with the rest of the Articles on the 15 th. Not that it is going

to change anything, but we really needed much more courage to state what Kenya is. So, here we

have at least something in the beginning in that constitutive process. But, it is not that it is going


to change anything, but I am just saying that we really do not have much of what this Kenya is.

You know, when people say Libya is an Arab Islamic republic, they are very definite about it.

When they tally and say this is a Christian State, you know, that kind of thing, or Christ is the

Head of this State.

(Laughter).

Com. Kavetsa Adagala: Or any other. We have not really said and I just want to leave it at that

but this partially solves that problem.

Com. Mutakha Kangu: Fine. Can we therefore confirm Article 107, verify and confirm? 207?

Com. Charles Maranga: No.

Com. Mutakha Kangu: Okay, fine. Can we hear Maranga?

Com. Charles Maranga: When you check on Article 207 (3), and you check on the

corrigendum, you find a number of words have been left out. In the same corrigendum we are

looking at, under 74, there are words which have been omitted or left out. “And to protect the

interests of the regional, district and locational governments,” was that one dropped? And who

dropped it?

Com. Mutakha Kangu: Any explanation, Nyegenye?

Jeremiah Nyegenye: I think at this point, I will ask my colleague to also say something about

this. But I wanted to say that-- and I need to reconfirm when I look through the Legislature. I

believe we felt that this was worked into the voting in the Legislature, where it said how they

vote and-- The protection of the interests of the region is-- If you say this is the purpose of the

Senate and say nothing more, you cannot achieve that. In order to get the Senate to be the house

that protects the interests of the region, you work into the Senate the mechanisms for enabling

the region’s interests to be protected and those mechanisms have been put there. As we saw in

the Legislature, they are that the region’s voters delegations, they need two-thirds for any matters


affecting the regions, bla bla bla. So, it was felt that leaving it in this manner only would not

achieve that, unless you have worked into it those particular mechanisms that enable the Senate

to do that, otherwise it will ring hollow. I do not know if my colleague has something to add, Mr.

Chairman, with your permission.

Com. Mutakha Kangu: Gicheru.

Com. Wanjiku Kabira: I just want to agree with Nyegenye, we discussed this also with Kangu.

The spirit behind some of the provisions that are provided for in the Senate, is exactly that, to

protect the interests of the region. Therefore, it was not necessary to say we are doing this in

order to be able to protect the regions. You do it by action. I think, later when we look at the

decision making process, that will be apparent. But the spirit behind it is actually to do this. So, I

think we also thought when we read it that it was legitimate to leave out the information. I am

sorry but before we move to the next one, the question that was raised by Kavetsa on-- Because

for me I think it is a legitimate question, what are we? You know, and I also want to agree. It is

just that we are not courageous enough. If I remember, when we were discussing the Executive,

Oloo Aringo said, “I have withdrawn my Motion because I am convinced that we have

established a parliamentary system of Government.” Why were we not able to state it, if that is

what we have done? So--

Com. Bernard Njoroge: Can I say something?

Com. Mutakha Kangu: Let Wanjiku finish, first.

Com. Wanjiku Kabira: So, I think there are things which sometimes need to be clarified. Either

we are courageous enough to say it or we say we have a mixed system of Government if that is

what we think we have or we have a presidential system or we have no idea, you know, what we

have established.

Com. Mutakha Kangu: Bishop, you had something.

Com. Bernard Njoroge: I am a little confused, are we dealing with the Chapter on Devolved

Government or the Executive? of 271

Last printed 9/24/2004 02:39:00 PM

Com. Wanjiku Kabira: Yes.

Com. Bernard Njoroge: Arising from what Wanjiku is saying are we dealing with Executive?

I thought we are dealing with the Devolved Government and if that issue comes--

Com. Mutakha Kangu: I will help you come out of the confusion. We are dealing with

Devolution and I was going to say that, the concerns Kavetsa and Wanjiku are raising are

legitimate but they are in a wrong context, because if we get into that debate we will be veering

off the Chapter. In fact, if we were to get into it, if you look at Article 5 that deals with the

Republic, one would again argue, we are a Republic but let us not go into that. May be we can

raise it at-- May be when we have finished everything else we may want to discuss some

pressing issues we may want to put in different places. But lets--

Com. Wanjiku Kabira: But Chair, we finished with the Republic and it did not come up.

Com. Mutukha Kangu: That is why I am saying that, may be when we have finished, we

might want to say, are there any other pressing issues we may want to raise on Chapters we have

finished? So that, we just concentrate on the one we have.

Com. Bernard Njoroge: I thought so (Inaudible).

Com. Mutakha Kangu: Okay, Bishop finish and then we can--

Com. Bernard Njoroge: Okay, John, I think we are forgetting what we are doing.

Com. Mutakha Kangu: Yes.

Com. Bernard Njoroge: We are verifying the Draft and if you remember what we said in

Mombasa, we look at what was passed by the Conference, not discussing addition or subtraction.

If we find that there is an issue of title that we have not given, we can make a recommendation to


the people who will take these documents. So I think we should be reminded so that we do not

veer away and we do not finish the job we have at hand.

Com. Mutakha Kangu: Thank you Bishop, you have reminded us. Kavetsa do you want still

to--


Com. Wanjiku Kabira: To move forward.

Com. Mutakha Kangu: You want us to move forward?

Com. Kavetsa Adagala: I just want to say something.

Com. Mutakha Kangu: Okay, fine Kavetsa and then we come to Ratanya and then we can

close this Article.

Com. Kavetsa Adagala: Yeah, I agree with you Chair. We can put this into some kind of

general comments.


Com. Kavetsa Adagala: But the one that Maranga has raised, again it is our history – you know

– Federalism was not protected, if we leave it out, although we are putting all these things there,

someone can say, ‘yeah, but there is no provision for it’. So, I think Maranga is raising a

legitimate issue--

Com. Mutakha Kangu: Point. Fine.

Com. Kavetsa Adagala: Yeah. Otherwise for me I feel when we talk in this way, that does not

take our history into account, it is like an academic text book - you know - That yes, Devolution


does that, yes it protects - You know – And other issues which also have sounded academic

without being down to the ground.

Com. Mutakha Kangu: Ratanya.

Com. Domiziano Ratanya: Mr. Chairman, since we are dealing with the Article 207 and then

we are trying to get the source of what is contained there in Article 7. Now, I would like to trace

Article 7 from the decision of the Conference. On 8th March, this was discussed and this Article

was deferred, according to the record I have. Now, then on 9 th, Mr. Chairman if you have the

same document I have, on 9th, Article 6, 7 and 8 too, were discussed and I find that Article 7 was

adopted without amendment. So, you see that, this Article was subjected to a lot of discussion

may be disagreement and so on, but I think on 9th March it was conclusively agreed, and what I

take to have been agreed on 7, according to me, is what is appearing on the corrigendum, that is

on page 4, which you have just referred us to. So on page 4, corrigendum on Devolution. We

find there is one, number 1, about sovereignty authority, which Kavetsa has mentioned and even

Maranga has complained. The whole of that is missing on 207, and this was passed without

amendment after two days of discussion by the Conference.

Now, number two, I agree it agrees with 207. That is number 207 on page 4. Number 3, sub-

article 3, I also agree. But then 4, sub-article 4 on Article 7 on page 4, that is the document of

23rd, there was an addition “and to protect the interest of the regional, district and locational

governments”. This again was added by the Conference, after a lot of discussion and finally

these ones were added there, and I can see they are missing on Article 207 and I think I support

Maranga, that is, I also complain that that one is missing. I would like to know why? Then

number 5, “The two Houses of Parliament”—Here, I can agree its a summary, on page 207, it is

a summary. When we say “Parliament”, we talk of the “two Houses”. So, there is a problem in

207 number 1, the whole of it is missing and then number 4, on page 4, is not given the meaning

as having-- As it was amended and continued on page 4. So, I would like to know where all

these got lost to and what happened. Thank you very much.


Com. Mutakha Kangu: Ratanya, 7 sub-section (1), is Article 6 in the document and we had

already passed that. What was sub-article (1) in Article 7, became a separate Article 6. I hope

that solves that aspect of your problem on page 3.

Com. Domiziano Ratanya: Page?

Com. Mutakha Kangu: Page 3.


Com. Mutakha Kangu: Article 7 in the corrigendum, sub-article 1 is a separate Article in the

document of 23rd, as Article 6. So, Zein.


Com. Mutakha Kangu: What is the matter with the machine?

A Commissioner: No, I have found one, Mr. Chairman.

Com. Mutakha Kangu: Yeah, so that is sorted out. Let us hear Zein before we get to the other

one. Yeah.

Com. Zein Abubakar: Thank you Chair, I was the Co-Rapporteur for Legislature--


Com. Zein Abubakar: And Mr. Chairman, you will recall that there was a sub-committee of the

Convenor, the Rapporteurs of both Committees, Devolution and Legislature to work out these

details. I would like to agree with Dr. Maranga, Mwalimu Kavetsa and Commissioner Ratanya.

One is, principle setting, the other is mechanism and you cannot say the mechanism also

establishes principles, it is wrong. I think we should not belabour this point, let us accept it and


even when we were discussing this, you will recall Mr. Chairman, that we said you need both

principle and mechanism. Now, in the Senate we have provided for the mechanism and the

mechanism without principle is not anchored in the Constitution. Therefore, we should suggest

that those phrases which establishes principle is noted to be returned. Thank you.

Com. Mutakha Kangu: Now, I have been whispering to my colleague and we want to report

that we are persuaded. So, can we note that those words, Nyegenye, are important, should be put

back and then we confirm the Article. Or is there anything else one wants to ask? Daktari

Swazuri. I am coming to you last.

Com. Mohammed Swazuri: Mr. Chairman, if you look at the Draft of 26 th February, if you

look at the Article 7, sub-article 2, on page 4, “The Government at each level are distinct inter-

dependent, consultative and negotiative”. (Laughter). Sorry not “negative”, “negotiative”.

Where is that in the 6?

Com. Wanjiku Kabira: It is number 6.

Com. Mutakha Kangu: Sub-article 2 of 6.

Com. Mohammed Swazuri: Sub-article 20--

Com. Mutakha Kangu: Article 6, sub-article 2.

Com. Wanjiku Kabira: Page 3.

Com. Mutakha Kangu: Page 3.

Com. Mohammed Swazuri: Which page? Oh, okay.

Com. Wanjiku Kabira: Page 3.

Com. Mutakha Kangu: Under the Republic, Article 6 (2). It is there.


Com. Mohammed Swazuri: Okay, I will look for it.

Com. Mutakha Kangu: Maranga.

Com. Charles Maranga: Chair, I am happy that all of you are persuaded. I think those were

very important words which were left out and we do not need to note them to move forward

because this was part of the corrigenda. It should really be – you know – put back without any

problem.

Com. Mutakha Kangu: So, we confirm the Article with the notes we have made, that those

words need to be put back. So, can we move to Article 208? Wanjiku.

Com. Wanjiku Kabira: Okay, so 208 corresponds to 232. Article 1 (a) corresponds to Article

2. Article 1 (b) corresponds to 3. 1 (c) corresponds to 4. Sub-article 2 corresponds to 5. Sub-

article 6-- Sorry 3 corresponds to 6.

Com. Mutakha Kangu: And then the three are missing.

Com. Wanjiku Kabira: And the other three are missing. (Laughter).

Com. Kavetsa Adagala: 2 corresponds to?

Com. Mutakha Kangu: 2 corresponds to--

Com. Wanjiku Kabira: 2 corresponds to-- Sorry.

A Commissioner: To 5.

Com. Mutakha Kangu: To 5.

Com. Wanjiku Kabira: 2 corresponds to 5.



Com. Wanjiku Kabira: Yeah. So 7, 8 and 9 are missing.

Com. Mutakha Kangu: May be we need some explanation from the Drafters about the reasons

for leaving out the 7, 8 and 9 before we can confirm the Article.

A Commissioner: Even 1.

Com. Mutakha Kangu: Even 1.

Com. Wanjiku Kabira: Yeah, Article 1, sub-article 1 is missing also.

Com. Mutakha Kangu: 1 also is missing.

Com. Wanjiku Kabira: Sub-article 1 of 232.

(Inaudible comments & laughter on the floor).

Com. Mutakha Kangu: Let us hear Nyegenye first before we come to you, Bishop.

Jeremiah Nyegenye: Thank you. Mr. Chairman you will indulge us if we are a little slow

because it is an ambush. We do not know--

Com. Mutakha Kangu: Yeah.

Jeremiah Nyegenye: --what we will be asked. (Laughter). So we have to think on our feet,

but the one I can respond to immediately is, number 1, where it was felt that this is the case

anywhere.

Com. Abida Ali-Aroni: Yes, it is obvious.


Jeremiah Nyegenye: Yes, so that is the case that “Government at every level shall be”-- It is

not-- You are not really legislating. This is-- Everybody has to do this whether you say it or you

do not say it. That is the one that I can respond to immediately. But let me look up the others.

(Laughter).

Com. Mutakha Kangu: Bishop.

Com. Bernard Njoroge: May be Nyegenye will also clarify this to me. In constitutional theory

there is nothing obvious. There is an issue in South Africa where the Government of Cape Town

took a case to court and because it was written in the Constitution about the loyalty in Devolved

Government to the National Government, the judgement in itself made it very clear that this is a

constitutional issue, it is provided in the Constitution. Now, tell me if you do not note this, in the

Constitution, what obligation to the various levels of government will have? I thought if you

want to provide-- I do not know, may be Wambua might be able to help me.

Com. Paul Wambua: I will help you.

Com. Bernard Njoroge: Okay, you help me may be you understand.

Com. Mutakha Kangu: Let us have Wambua.

Com. Paul Wambua: I think just to follow up on what Jeremy has said, if you look at Article 2

(1), that makes it very clear--

A Commissioner: 2--

Com. Paul Wambua: 2 (1).

A Commissioner: Supremacy.


Com. Paul Wambua: Page 2. That solves the problem.

Com. Mutakha Kangu: Chair.

Com. Wanjiku Kabira: I want to say the same thing.

Com. Mutakha Kangu: Wambua. So, can we say that, the leaving out of sub-article 1, we

think it is covered at 2? Now, then how do we deal with 7, 8 and 9? These ones are

concentrating on dealing with the settlement of disputes among different levels of government.

Anybody has anything to comment? Maranga.

Com. Charles Maranga: Since the 3 sub-articles are dealing with the conflict resolution, I

think unless they are covered somewhere else where we are not-- Where it has not been

indicated. I think there are very important sub-articles which we need may be to note that they

have been left out and then we see how they can be dealt with. But at those levels of

government, we really need dispute resolution mechanisms.

Com. Mutakha Kangu: Anybody else has a comment? Kavetsa.

Com. Kavetsa Adagala: Thank you, Chair. Since 7 and 8 are dealing with High Court, could

Commissioner Wambua enlighten us on this? Is it anywhere in the Judiciary?

Com. Paul Wambua: Yes.

Com. Mutakha Kangu: Wambua.

Com. Paul Wambua: I believe we had specifically referred to that aspect. If you give me a

minute, I can may be isolate the particular Article, but I know the dispute resolution with regard

to the devolved units are specifically referred to and vested in the High Court and therefore in

my view, it does not need to repeated in 7, 8 and 9 of 232. But I can identify the particular

Article.


Com. Mutakha Kangu: So, can we do this, that we confirm the others with the--

Com. Abida Ali-Aroni: 191.

Com. Mutakha Kangu: 1--

Com. Abida Ali-Aroni: 191.

Com. Wanjiku Kabira: 191.



Com. Wanjiku Kabira: 23rd.

Com. Mutakha Kangu: 23rd, 191.


Com. Paul Wambua: Yes, I think Chair that is the right one. Yeah, it is Article 191 (b) “all

matters relating to the interpretation and enforcement of the provisions of this Constitution”.

Commissioners: Where?

Com. Paul Wambua: 191 (b), page 81 of the 23rd March Draft. So, that actually takes care of

the 7, 8 and 9.

Com. Mutakha Kangu: So, anybody still has anything? Swazuri.


Com. Mohammed Swazuri: If the lawyers think that is true, that is correct, that is all right.

But I still do not think that sentence takes into account what is specifically given here, I doubt.

Com. Mutakha Kangu: Eh, Nyegenye.

Jeremiah Nyegenye: In addition to that Mr. Chairman, some of the-- If I can jog my memory.

Some of the arguments against the rest of provisions were that, if you look at 6, the 6 just before

the 7, 8 and 9, you will see that, 7 really is not adding anything. Recalls to court is there as a

matter of law. Recalls to the High Court is available. Then when you go to 8, it is not adding

anything because there is no case which the High Court should not deal with, with expedition. It

should deal with all the cases with expedition and if it is satisfied-- That, “if it is not satisfied that

the requirement-- have been-- it may refer back to the governments involved”. That is a residual

power the High Court has anyway. It can ask for mediation, it can do that. And the final one,

there is legislation on Devolution anyway.


Jeremiah Nyegenye: Number 9. So, in a sense this really, these three, they are not terribly

necessary.

Com. Mutakha Kangu: Kavetsa.

Com. Kavetsa Adagala: Just for the record, we were hoping in the Culture Committee that

Devolution would capture some of these issues because of the nature of Devolution, so that,

where it is talking about dispute and negotiation and arbitration that it would be added

‘traditional forms’. Because if you do not say it, then people just go for the court and they go for

the other methods. For instance, what is happening now in Marakwet, just for the record, so that

somewhere in the verbatim, some day, someone will see that it is necessary. At this level, to

actually engage such approaches and methods even the principles. So, they are different. The

traditional ones are different from the contemporary ones.


Com. Mutakha Kangu: I do not know how you look at the 6, Kavetsa. It says “A government

involved in an inter-governmental dispute shall make every reasonable effort to settle the dispute

by means of procedures provided for that purpose, and shall exhaust all other remedies before it

approaches a court to resolve the dispute”. Will that-- When we talk about exhausting other

remedies, would that be leaving some room for this African mutual ways of settling disputes?

Kavetsa, still has something to say.


Com. Kavetsa Adagala: It would, but it is just the implicit aspect of it, because I think we

needed to affirm these issues, but it is okay, because I do not see how-- The exercise we are

doing now is different.

Com. Mutakha Kangu: Okay, fine.

Com. Kavetsa Adagala: Yeah, but I am saying it for the record so that perhaps in Legislation

this matter can be--

Com. Mutakha Kangu: Can be captured. That is true.

Com. Kavetsa Adagala: Because there so many things at the Devolved Government that if we

do not do, we will go once again into this neo-colonial.

Com. Mutakha Kangu: Can we hear Wambua and then Bishop?

Com. Paul Wambua: If I understood Mwalimu Kavetsa properly, I think she is concerned with

the traditional dispute resolution, which we clearly preserved under Article 184. It is clearly

stated. If you look at 184 (3) (c) and (d) of the 23 rd March Draft, it says, “The subordinate courts

are (c) traditional courts; and (d) “any local tribunals that may be established by an Act of

Parliament”.

Com. Mutakha Kangu: So, is that all Wambua?


Com. Paul Wambua: Yeah, that is all I wanted to say.

Com. Mutakha Kangu: Bishop. Wait for the mic for recording.

Com. Bernard Njoroge: John I still, have to be advised. You see, the judicial system as

contained in this 23rd Draft deals with cases either on individuals and so forth. But we have a

phenomenon of government that was not a phenomenon, in what we had before. And you are

assuming that, the regional government, which is the very different creature, will be dealt with,

with the judicial provision provided. Now, South African did not do it because they knew, this

was an interesting creature, if there are provisional governments, you have to give specific

Articles on how resolutions will be dealt with. So my difficulty is this, is that you assume what

is written in the Judicial Chapter will take care of the Devolved? These are institutions, these are

governments and in government the procedures may be different! I do not know whether

someone will address that because--

Com. Mutakha Kangu: Are you proposing that we retain these three clauses?

Com. Bernard Njoroge: What I am saying is this, because even when we say “reasonable

efforts to settle disputes and procedures provided”. What procedures are provided? Because

these are different governments, and John you will agree with me, in the South African, the

judicial system to deal with regions, are very different from the normal procedures dealing with

individuals or corporate bodies and so forth. So, I think unless we provide for that we will have

a big, big difficulty.

Com. Mutakha Kangu: Let us hear Maranga and then finalize with Zein.

Com. Charles Maranga: I think John, if you look at sub-article 9, for the purposes of clause 6,

which refers about the government involved in an inter-governmental dispute, “an Act of

Parliament shall provide procedures for the settlement of inter-government disputes by

negotiation, mediation or arbitration”. That is sub-article 9. But what it says here, what it means

to me, in my own opinion, if this one fails, as it is clearly stated, then this matter can be referred


to the High Court and then goes to 8. So, I feel that all the sub-clauses help one another in terms

of dispute resolution. So if they can be restored, that is my own proposal, it will be fine.

Com. Mutakha Kangu: Zein.

Com. Zein Abubakar: Mr. Chairman, I beg to disagree, and the explanation that has been

given is this, that Act of Parliament would be there. This Chapter clearly demands for an Act of

Parliament and-- So therefore 9 is taken care of. Then when you are dealing with issues of 7 and

8, for instance, when you say “expeditiously”. If you look at the Principles and structure of

judicial power, they say clearly “justice shall be done to all irrespective of their status” and then

(b) says, “justice shall not be delayed”. In other words, we are trying to establish principles here

which are already established in their right places in the judiciary and where there is-- It is not a

constitutional issue, it is a legislative issue, it is provided for.

So in saying that Parliament will do this-- But in the final analysis to this, whatever you may try

to provide for in an Act of Parliament, if this dispute is not determined, it will have to go to the

judicial process. And that is provided for in a whole Chapter. Therefore, I am convinced that 7,

8 and 9 are unnecessary and if you put them there, they do not add any value. They do not add

any value, in fact they may act, to confuse things. I would like to agree with Bishop that the

South African have provided a dispute resolution mechanism, but also Bishop would agree that,

Devolution in South Africa is very different from the Devolution envisaged here. Some ideas we

share and we have borrowed some, and some we do not.

And then, two last points, quickly. One, if we make a determination that you may need special

dispute resolving mechanisms, they will not be 7, 8 or 9. And if they will not be 7, 8 or 9, it

means that it is outside the realm of the Commission and this process we are doing. All then we

can do is to note and say, in terms of either legislation or providing mechanisms, those who will

be having the powers and mandate to do it, may want to consider that. Thank you, Chair.

Com. Mutakha Kangu: Wambua, you had something?


Com. Paul Wambua: I think what I wanted to say what Zein has partly said because we will

have a Devolution Act. The provisions, which I think are worrying Bishop, can be contained

there and basically are the ones stated in 9. The principles which are stated in 7 and 8 have

already been stated in the Judicial and Legal System Chapter. So we do not need to repeat them

there.

Com. Bernard Njoroge: Can I ask just a small thing?


Com. Bernard Njoroge: I want to clear in my mind. May be Wambua can also help me with

this. I understand the issues being dealt with in the Judicial Chapter are the issues, as I said, that

has to do with individual, have to do with corporate bodies. My question is--, I also understand

if there is a problem between a regional government and a national government. If that issue is

dealt with, what we have said is that it has to be quick because it is very different, even from

what the principles provided there in the Judicial Chapter. Saying it is expeditious means that if

it is not dealt with, it can lock the whole country. And therefore, that is why you provide

specifically so that it picks precedence of anything. The judges can say, “yes, we are trying to do

with every issue according to the principles given to the Constitution.” But here-- And I will tell

you this is what happened when Cape Town was involved in a dispute with the central

government. It was taken expeditiously. I think we are dealing with this issue, I still feel that

that must be provided. We must not look at it as we are looking at-- I do not know what you

will say, Mr. Wambua.

Com. Mutakha Kangu: Gicheru has something.

Ndoria Gicheru: Mr. Chairman, I just wanted to say that maybe those provisions (7), (8) and

(9) maybe were left out, I am not sure. I was not there when they were been discussed, but it

may be that it was sort that Article 230, clause (1), the beginning of clause (1), could cater for

that, because that Article gives Parliament power to legislate comprehensively for matters

necessary or convenient to give effect to this particular Chapter. So, anything left out or not


provided for can be catered for under that provision, when it comes to establishing procedure, or

any other clarification that might be necessary.

Com. Mutakha Kangu: We may need to also note, and I understand what Bishop is saying,

that there are a number of things South Africa has gone about by first experience before they

enact a law, after they have gone through experience. And I know that before they enacted the

Intergovernmental Fiscal Relations Act, they had operated informally and informally established

what they called the Budget Council and the Budget Forum and seeing how it worked before

they finally enacted it into an Act of Parliament. And I think that indeed for purposes of

resolving intergovernmental disputes, an Act of Parliament will be required to give details and

sometimes there is a danger in giving details in the Constitution before you know exactly how

the realities of the ground will be. And maybe the question we need to ask is whether those three

clauses are going into too much detail or are just sufficient for what should have been a

Constitution. And listening to members, maybe personally, I would think that the easier way for

us to resolve is to make a note that members may feel we need them but of course details will go

into legislation and we move on. Maybe let us hear Maranga, the last one.

Com. Charles Maranga: Chair, given the formulation of sub-article (6), I will be very

comfortable if Article 6 went together with sub-article (9). Then Article 7 and 8 can be dropped

I have no problem with that. But sub-article (6) and sub-article (9) are related and I think sub-

article (9) gives us a way of how Parliament will try and make procedures for the settlement of

disputes because it is important that that thing is mentioned here.

Com. Mutakha Kangu: You still want to say something, Wambua?

Com. Paul Wambua: In fact the point, which Bishop is raising, is one of the points we

discussed in the Judiciary Committee, and initially if you remember we had said that aspect of

disputes involving the devolved units and (?) between the devolved units and

the central government were to be resolved at the very first instance by the supreme court so that

there is no right of appeal and are heard very quickly. But after thorough discussion it was felt

that that will be loading the Supreme Court with a lot of work and therefore the disputes should

go to the High Court, in exercise of its original jurisdiction, but a mechanism be set up, through


an Act of Parliament, to allow those disputes to be first dealt with through mediation and so on

and so forth. But I do support the proposal by Commissioner Maranga that maybe we can retain

(9) and link it up with (6) and we do away with sub-article (7) and (8).

Com. Mutakha Kangu: So, let us verify this Article by noting that we have no problem with

leaving out sub-article (1), sub-article (7) and sub-article (8) but we will note that sub-article (9)

may be necessary, and maybe because most of the issues dealing with legislation have been

taken to Article 230, it might be necessary to take sub-article (9), to be one of the things that

Parliament would be specifically required to legislate on. If you look at 230 it says, “Parliament

shall by legislation make comprehensive provisions for all matters necessary or convenient to

give effect to this Chapter, including, in particular, provisions for…” and then we will add there

“for the settlement of disputes among--”

A Commissioner: Which Draft are you looking at?

Com. Mutakha Kangu: The one of 23rd, Article 230 because the picture we seem to get from

the Drafters is that, they decided that all the aspects requiring legislation in this Chapter be put in

one Article and we can have it named there specifically. Would that do? Kavetsa, you still had

your hand up.

Commissioners: That will do.

Com. Kavetsa Adagala: Okay. So, shall we move on?

Com. Mutakha Kangu: Then let us hear Kavetsa and then we move on.

Com. Kavetsa Adagala: Is Bishop’s concern taken care of?

Com. Mutakha Kangu: He says he is happy with that.

Com. Kavetsa Adagala: Okay. I just would like to emphasize that we need that general

comment about some of these things because-- Like Bill of Rights caters for individual rights, so


does the Judiciary really, and we are trying to deal with the things which have been marginalized

before. So, I just hope that we will have, this time, the chance to do that.

Com. Mutakha Kangu: Fine. Thank you. Now, Wanjiku can now move us to Article 209.

Com. Wanjiku Kabira: Article 209, and that Article corresponds to 233 and the corrigenda.

Let us begin with the Articles that correspond here. 209 (1) corresponds to 233 (1) and then 209

sub-article (2), corresponds to 233 (7). Can you see it on page 148? Yes, 209 (2) corresponds

with 233 (7). 209 (3) corresponds to 233 (9). Then--

Com. Ibrahim Lethome: (8).

Com. Wanjiku Kabira: Sorry, (8). And then 209 (4) corresponds to 233 (10).

Com. Mutakha Kangu: And then look at the corrigenda.

Com. Wanjiku Kabira: Now, we want you to look at the corrigenda page 146.

Com. Mutakha Kangu: Yeah, 146.

(Inaudible consultations at the “high” table).

Com. Wanjiku Kabira: If you look at your corrigenda page 146, 233--

Com. Mutakha Kangu: The effect of the corrigenda was that the specific Assignment of

functions was removed from the body and taken to Schedule four, so you will see that some

Articles that had tried to give specific Assignment of functions were struck out because that was

moved, it was agreed that all the specific Assignment of functions be taken to Schedule four so

now we can go to Schedule four.

Com. Wanjiku Kabira: So, do you have Schedule four?


Commissioners: Yes.

Com. Wanjiku Kabira: We want to compare what you have now on page-- Sorry, Article 233.

Com. Mutakha Kangu: And in fact (a) Article 209 (1) refers to Schedule four.

Com. Wanjiku Kabira: Okay, are you there? So what we had here was-- Page 147 of 26 th and

we want to compare that with 152 of 23rd, where you have the Regional government. So you can

see that sub-article (2), except where the Constitution is, corresponds with--


Com. Wanjiku Kabira: Yeah. And then (a) of Schedule four, of Regional Government, (a)

corresponds to-- Actually all those items correspond. You can see (a) corresponds to (a), “the

coordination and supervision.” (b) corresponds to (b), “the formulation”, (c) corresponds to the

other (c), “setting of regional standard”, (d) “regional planning, monitoring and evaluation,

actual production, actual development, the facilitation, capacity building”. You have seen that?

A Commissioner: Where?

Com. Wanjiku Kabira: I was comparing Regional Governments functions on schedule 4,152--

A Commissioner: Corresponds to 147.

Com. Wanjiku Kabira: Yes, corresponds to 147. So, we still have not accounted for-- Now

can we go back to 26th. We go back to the document on 26th. We had not accounted so far for

(3), sub-article (4), sub-article (5), sub-article (6) and sub-article (9). Is that correct?


Com. Wanjiku Kabira: Maybe we can check them Article by Article



Com. Wanjiku Kabira: So, we are looking for sub-article (3) where it disappeared to.


Com. Wanjiku Kabira: So, let us look at (3), (3) of 26 th corresponds to a certain extent.

(Laughter). Go to 206.

Com. Mutakha Kangu: Do we hear the Drafters?

Com. Wanjiku Kabira: 206 (d). You know what we were trying to do, if something was seen

as being repeated and it is put in the object, we were actually trying to see whether the same

spirit is carried in the same Article, although it originally belongs to the original Article, the first

Article in, 231.


Com. Wanjiku Kabira: Okay. Let us debate those, they are not in the Draft I mean in short.

Com. Mutakha Kangu: Maybe we start by hearing comments from the Drafters about (3), (4)

and (5).

Com. Wanjiku Kabira: (3), (4), (5), (9).

Jeremiah Nyegenye: While Mr. Gicheru is thinking about his own version of events, I am

actually thinking that (3) and (4) are actually as Professor Kabira was saying, covered in (d) of

206, “to recognize the right of local communities to manage their own local affairs and to form

networks and associations to assist in that management and to further their development.” That

is (3) and (4), local communities being guaranteed the right to manage their affairs and

associations, federations and networks, similarly having the right to self-management. That is

what has been combined in (d), about local communities to manage their own local affairs,

networks and associations etcetera. That is what is together in (d). Then (9), federations would


fit-- Actually the word “networks and associations” both of them are generic terms into which

you can throw in a lot of things. So, “federations” really would be subsumed in either “network”

or “associations.” And then which other one?

Com. Mutakha Kangu: (5).

Jeremiah Nyegenye: Mr. Gicheru can proceed as I look at (5) please, Mr. Chairman.

(Inaudible consultations on the floor).

Com. Mutakha Kangu: Gicheru, you wanted to say something.

Ndoria Gicheru: Not now.


Com. Mutakha Kangu: Chair, you had something?

Com. Abida Ali-Aroni: Yes, thank you. Today I seem to agree with Nyegenye quite a bit I do

not know why but I agree with him that this-- Which Article was it now? Because I whispered to

Wanjiku.

A Commissioner: (3) and (4).

Com. Abida Ali-Aroni: (3) and (4), if you look at 206 (c) and (d), Nyegenye read (d), but if

you read it together with (c), I think you capture-- Not-- It is (5)?


Com. Abida Ali-Aroni: I am not sure about (4) but I am concentrating on (3). If you read (c)

and (d) together, the meaning is captured very well. It would really be a repetition to reinstate it


back. (4) is more or less the same because you are talking about the communities, and networks.

They are really captured in (c) and (d).

Com. Mutakha Kangu: So, (3), (4) and (5) is-- Anybody wants to talk about (5)? Nyegenye,

Pauline.

Pauline Nyamweya: I was just wondering whether number (5) could be subsumed under 230

(b) which provides for governance, an Act of Parliament, a legislation which will among other

things provide for the governance of Nairobi as a national capital and of other urban areas.


Pauline Nyamweya: 230 (1) (d) of the 23rd Draft.

Com. Mutakha Kangu: Anybody-- Maranga, you are saying no it does not. Can we hear from

you?

Com. Charles Maranga: You know Nairobi as a capital city is unique. It is not been equated

with other urban centers or even urban areas. Given that it is the capital city of Kenya, the

Republic of Kenya, I think we need to give it some special status and I think this sub-article (5)

meant to do that and maybe, unless I am convinced otherwise, I will still propose that (5) still be

carried forward.


Com. Kavetsa Adagala: I am having problems with general things. There must be different

approaches to Constitution making because we are doing so much to hide what we are. That--

In fact I can see this Constitution being down loaded very easily somewhere else and it could

function. Like this thing of villages and associations and federations, when we went to Kilifi.

These were things that have to be explicit, they are principles by which people function but I

think probably the different ways-- And we never discussed that, probably different approaches

to Constitution making. All I remember is being told that, the Peru one is 400 pages and the


Swiss one is small, but there must be principles. And maybe student Baraza could enlighten us

on this. My point is that, we are doing so much to hide ourselves and we keep saying-- This one

of the-- The one we have been dealing with-- Sorry, my pages turned themselves of (3), (4)

and (5), among others it is principles yes, but they have no face. So, I am just saying, I have to

hold myself back because I do not see our Constitution, I just see a Constitution.

Com. Mutakha Kangu: Maybe I need to note that (4) in particular, referring to what Kavetsa is

saying, indeed our intention, and I hope Wanjiku will confirm, was to find a way to provide for

some protection of community and village government, noting that we had reduced the levels of

government from five to four and noting that when we visited Kilifi, the Kilifi people were still

saying, there still ought to be some recognition of organization at that lowest level. And that is

why we have put (4), so that an Act of Parliament would then give a little more details on the

running of location government in a manner that recognizes the right of the communities, in that

location, to organize themselves and participate and maybe looking at it from that point of view,

one would be made to agree with Kavetsa, that it may be something useful being lost.

Com. Wanjiku Kabira: Can we reinstate (4), leave out (3) and then we are proposing we leave

out (5) because the way it is left out it is even misleading. Because Nairobi is not a province

under district the way it is reflected here. It is a province, we can give it a different name but the

districts are different entities.

Com. Mutakha Kangu: And I think we will be better of with what Pauline referred us to, and

that would take into account Maranga’s worries, because in 230 (1) (b), it is stated clearly, “the

governance of Nairobi” so Nairobi is mentioned specifically and then we add “as the national

capital and other urban areas.” So that, the Act will be giving us details on how we should deal

with Nairobi as the capital, and also details on how to deal with urban areas within districts and I

think we had discussed that. So, we say in summary, that we verify the document, but not that

we would like to have (4) put back.

Com. Wanjiku Kabira: The others we had, it was (9). Sorry, (6) and (9).


Com. Mutakha Kangu: (6) and (9). Any comments?


Com. Mutakha Kangu: Yes, Nyegenye.

Com. Wanjiku Kabira: Sorry. 209 (1) by the way is also covered by (6).

Jeremiah Nyegenye: The functional--

Com. Wanjiku Kabira: Yeah.

Com. Mutakha Kangu: Yeah, Nyegenye you--

Jeremiah Nyegenye: The geographical functional or institutional integrity.


Jeremiah Nyegenye: Speaking about (9), I do not know whether the Article that said what the

levels of government are they are consultative. Was that Article-- Is it (6)? Of the Draft of 23rd.

Com. Mutakha Kangu: Yes, Article 6.

Jeremiah Nyegenye: “The government at each level are distinctive, interdependent,

consultative and negotiative.” That is what we were--

Com. Mutakha Kangu: Capturing.

Jeremiah Nyegenye: Yes. The essence of (9) is that they are supposed-- That they consult.

Com. Mutakha Kangu: How about (6)? What do we say about (6)? (9) can be captured in that

general principle kind of. And (6) what do we do?



Com. Mutakha Kangu: Now, (6) there is the school of thought that says that the clause, that is

208 (1) (a) which says, “Government at every level shall exercise and perform its powers and

functions in a manner that does not encroach on the geographical, functional or institutional

integrity of government at any other level and shall respect the constitutional status, institutions

and rights of government at all levels.” That effectively is saying that you can only do what the

Constitution permits you and you should not encroach on what the Constitution permits the

others to do. I do not know whether that would be sufficient. (Laughter). So, can we therefore

verify noting that the only one we want brought back is (4)?

A Commissioner: Sub-article (4).

Com. Mutakha Kangu: Fine. So, Wanjiku move us to 210.

Com. Wanjiku Kabira: You have conflict of laws and 210(1) corresponds to 268(1). 210(2)(a)

corresponds to 268(2)(a) and (b) corresponds to (b) and on the next page (3) corresponds to (3).

(3)(a) corresponds to (3)(a), (3)(b) corresponds to (3)(b) and (3)(c) corresponds to (3)(c), so far

so good.

Then (4) correspond to (4) and (5) corresponds to (5), (6) corresponds to (6), (7) corresponds to

(7), (8), there is no (8), it is only (9).

Com. Mutakha Kangu: (8) is an introduction.

Com. Wanjiku Kabira: Okay. So, we have (9).

A Commissioner: (8) is (9)

Com. Wanjiku Kabira: Okay, sorry. “A subordinate court--

Com. Mutakha Kangu: The (8) is (9).


Com. Wanjiku Kabira: So, (8) is (9).

A Commissioner: Mr. Chairman, sir--

Com. Mutakha Kangu: Yeah, (8) is (9), I confirm.

Com. Wanjiku Kabira: Yeah, the only thing I am saying is that in the document of the 26 th

there is no (8), in terms of numbers.

Com. Mutakha Kangu: No, there is, over page.

Com. Wanjiku Kabira: Oh, oh.

Com. Paul Wambua: It is there but it is given a different number--

Com. Wanjiku Kabira: It is given a different number, yeah.

Com. Paul Wambua: --so there is nothing to waste time on.

A Commissioner: There is addition of the word “subordinate”.

Com. Mutakha Kangu: Addition of the word “subordinate”.

Com. Wanjiku Kabira: “A subordinate court”?


A Commissioner: Does that make a difference?

Com. Paul Wambua: Oh, yes, a lot.

Com. Mutakha Kangu: So, can we hear on that, Wambua you said it makes a lot of difference?


(Consultations at the “high” table).

Com. Mutakha Kangu: So, are we better off leaving it with just “courts’? Can we hear you

Wambua.

Com. Paul Wambua: I think it should be left as “court”, because I do not think this is the kind

of dispute which--

A Commissioner: Legislator.

Com. Paul Wambua: --would go to the subordinate court. So, if we can leave it as “court”,

unless we are convinced of course by Jeremy why “subordinate” was introduced.

Com. Mutakha Kangu: Nyegenye.

Jeremiah Nyegenye: Thank you, Chairman. The problem arises when you look at (a), if I read

the original.

“A court before which an apparent conflict between legislation of different levels of

government arises shall decide the issue unless –

(a) because of the importance or complexity of the matter the court on its own

motion refers the matter to the High Court”.

So, unless of course, which is possible the Court of Appeal or the Supreme Court refers the

matter to the High Court, but it seems to suggest that this first court was--

A Commissioner: A Lower Court.

Jeremiah Nyegenye: Was a Subordinate Court, but I see the Chair--

Com. Mutakha Kangu: Okay, Chair.


Com. Abida Ali-Aroni: In fact that is what I was whispering to Wanjiku. If you read the

Revised Zero Draft, the impression you get is that we are talking about the subordinate court and

that is why there is reference to the High Court. So, for me I think the inclusion of the

subordinate court makes it clearer because it appears that that was the intension from the word

go. Unless, well the Rapporteurs explain to us further.

Com. Mutakha Kangu: Doctor Nunow.

Com. Abdirizak Nunow: Mr. Chairman, if I understand you right, I think a subordinate court is

subsumed under a court. A court includes, subordinate court but other courts as well. So, I think

it is probably to avoid that kind of doubt in the event that, it maybe a court of lawful jurisdiction,

but if we said a court, would we lose a non-descript categorically subordinate? Will we lose a

meaning or an interpretation? For me I would take a court as being a more general term than a

subordinate that is specific, although a court lower than the High Court is assumed to be a

subordinate court and is known to be. Will it add value, making that categorical distinction that a

subordinate court?


Com. Paul Wambua: Chair, I would like to go by the proposal by Nunow because it is not

obvious that it will arise only in the subordinate court, even on Appeal the issue of an apparent

conflict can arise. And therefore we refer back to the High Court and in exercise of its original

jurisdiction. So, I think we should preserve “a court” rather than a “subordinate court”.


Com. Abida Ali-Aroni: Chair, I would suggest that we read this sub-article, because the

reading of this sub-article shows very clearly that this reference cannot be reference of, for

instance, the Court of Appeal or even the Supreme Court and I will suggest that we read, sub-

article (9) and (a) –


“A court before which an apparent conflict between legislation of different levels of

government arises shall decide the issue, unless because of the importance or complexity

of the matter the court on its own motion refers the matter to the High Court”.

If a matter is complex and important there is no way the Court of Appeal or the Supreme Court

will take it to a subordinate court, like the High Court. So, the hierarchy for me is very clear. It

goes to a subordinate court but because of its importance or complexity that subordinate court

refers the matter to the next level, which is the High Court. I think it makes a lot of sense to add

the word, “subordinate” to avoid doubt the way we are having it now.

Com. Mutakha Kangu: Ratanya, make the last comment and then we conclude it.

Com. Domiziano Ratanya: Now here, Mr. Chairman, if we take a subordinate court, if we

say-- you say this is 210(a), the word “court” is repeated there, you see –

“because of the importance of complexity of the matter the court”.

Then why don’t we say the subordinate court, you see, so there is a discrepancy there. This is

why I would say, if we say a subordinate court, in (a) we should also repeat the subordinate

“court on its own motion”, you see.


Com. Domiziano Ratanya: Yes, or if we remove subordinate court then it will match that. The

court as on page 163, number 9, “a court before”, and then down in (a) is “the court on its own

motion”. Here for me, I would support that we have the subordinate court as it is on 210 that is

(8) and then we say in (a), “the subordinate court on its own motion”. Thank you.

Com. Mutakha Kangu: Wambua you still want to say something?

Com. Paul Wambua: I think I am persuaded.

Com. Mutakha Kangu: Then you say that you are persuaded, we move on.


Com. Paul Wambua: Chair, I think I am persuaded. I think the formulation by the Chair, I

think is the right one. In view of the words used in (a) I think we should have subordinate court.

Com. Mutakha Kangu: So, we confirm and verify that we have noted the addition of the word

but we are happy with it.

Commissioners: Yes.

Com. Mutakha Kangu: Can we-- Wanjiku move to Article--

Com Wanjiku Kabira: We move on to 211, it that okay?

Com. Mutakha Kangu: Yeah, 211.

Com Wanjiku Kabira: Which corresponds to 234, “a regional government consisting of a

regional legislative assembly”, and the other one says, “there is established for each region a

regional government”. It is the same. And then sub-article (2), “the Nairobi region shall be

managed as a metropolitan capital” and it is the same in 26. Confirmed?

Com. Mutakha Kangu: So, that one we confirm and verify?

Commissioners: Yes.

Com. Mutakha Kangu: We move to 212.

Com Wanjiku Kabira: To the Regional Legislative Assemblies, which corresponds to 235.

212(1)(a) corresponds to 235(a), 212(1)(b) corresponds to 235(b) and then (c) corresponds to (c).

Are we happy so far?

Commissioners: Very happy.

Com Wanjiku Kabira: Now go to (2). Sub-article (2) corresponds to 236(2), you can see it, in

electing the delegates?


Commissioners: Yes.

Com Wanjiku Kabira: Now 23-- Sorry 212(3)-- (1)(3), sorry 212(3) corresponds to 236(3),

where you have “a member of the Regional Assembly”. Now, then you have (1)(a)(b) sorry we

have--

Com. Mutakha Kangu: That finishes 212.

Com Wanjiku Kabira: Now is that okay?

Com. Mutakha Kangu: We confirm and verify?

Commissioners: Yes.

Com Wanjiku Kabira: And verified. Okay. Now, so we go to Regional Executive Committee,

213 which corresponds to 238. 213(1)(a) corresponds with 238(a), roman (i) and (ii) they are the

same. (b) “other members…” and sub-article (2) corresponds to the sub-article (2) of 238. So, we

have--

Com. Mutakha Kangu: The next (3) to (5), (6).

Com Wanjiku Kabira: But before we move on to that, we probably may want to ask what

happened to 237?

Com. Mutakha Kangu: 23--

A Commissioner: 236(1)

Com Wanjiku Kabira: 236(1) and 237.



Jeremiah Nyegenye: 236(1), Mr. Chairman, and 237 are covered by Articles 230 to 235 of the

Draft of 23rd. Article 231 all the way to 235, they were made general provisions, instead of

repeating each and then they were put under part 6. So, if I take 236 for example, 236(1), “a

person is eligible to be member of a regional legislative assembly”, that you would find at 231.

Com. Mutakha Kangu: Mmh.

Com Wanjiku Kabira: Okay.

Com. Mutakha Kangu: Then does that satisfy us about 236(1) and 237?

Jeremiah Nyegenye: 237?

Com. Mutakha Kangu: 237, or let us deal with 236(1) first and dispose of it. Are we okay with

that, Swazuri?

Com. Mohammed Swazuri: It is okay only that we want to note that under 231(b), there is an

addition of, “a period of residency”, which was not there in 236(1), “a period of twelve months”.

Com. Wanjiku Kabira: Yeah, maybe Nyegenye can explain to us.

Com. Mohammed Swazuri: Otherwise the rest is the same.

Com. Mutakha Kangu: Question Zein, before we go to Nyegenye.

Com. Zein Abubakar: Do you want to put twelve months in the Constitution? I would think

this is the kind of thing which we even deleted in the Legislature and we left that to legislation.

So, that is my question.

Com. Mutakha Kangu: Nyegenye can you comment on that?

Jeremiah Nyegenye: Actually, purely on that question, I think you would want to do that

because it is at the heart of the qualification. If Legislation then went and made a provision-- And


you know it will be unable to-- You see we are saying, “Until relevant”-- If you read that from

the beginning, “Until relevant provision is made by an Act of Parliament”, then if you leave it to

an Act of Parliament, what will apply?


Com. Mutakha Kangu: So, in that event-- Wambua. In that even can we then just say we have

verified and confirmed 231?

Com. Abida Ali-Aroni: No, we should not--

Com. Mutakha Kangu: We shall reach it when we reach there or we note what, Chair?

Com. Abida Ali-Aroni: No, no, I agree with you. We shall discuss when we reach there. I

thought you did not want us to note the-- I thought you were going to deal with 231, because

then we need to note the addition, but if we will come to it later I have no problem.

Com. Mutakha Kangu: Wanjiku.

Com. Wanjiku Kabira: But I think what we are saying-- Because all issues that come through

the document of 26th related to qualifications for elections or appointment to the devolved

government bodies, they are all captured in 231. so, instead of coming back to 231, that is why

we thought--

Com. Mutakha Kangu: We can dispose of it?


A Commissioner: So, note and then we verify it (?).

Com. Mutakha Kangu: So, Chair, you had something to note


Com. Abida Ali-Aroni: Just the inclusion of the of the twelve months period, because that was

never discussed at the Conference.

Com. Mutakha Kangu: Discussed. So, we note that the twelve months period is an addition

and that we have heard Nyegenye’s explanation that it is a transitional measure, because the

Article begins by “until”. So, it is kind of transitional. So, can we say we have verified and

confirmed 231, before we go back to where Wanjiku had reached--

Com. Wanjiku Kabira: Which was 2--

Com. Mutakha Kangu: Was it 212?


Com. Mutakha Kangu: No, 213.

Com. Wanjiku Kabira: 213, now.

Com. Mutakha Kangu: Are we okay with that?

Commissioners: Yes.

Com. Mutakha Kangu: So, Wanjiku can we proceed with 213. Before we move, Wanjiku,

Zein, what is it?

Com. Zein Abubakar: Can we break for prayers?

Com. Mutakha Kangu: A Motion is being moved that today is Friday and our brothers and

sisters from the Muslim faith would like to go for prayers. What do we do, Chair?


Com. Abida Ali-Aroni: I think you do not have to do anything special. We normally adjourn at

12 p.m and come back at 2 p.m.

Com. Mutakha Kangu: Fine, so we adjourn at this moment and-- Kavetsa.

Com. Kavetsa Adagala: So, before we adjourn-- I agree with adjournment. But before we

adjourn, who is it who was saying do you want to put twelve months? Zein, were you the one

who was talking about the twelve months?

Com. Mutakha Kangu: Yeah, it was Zein.

Com. Kavetsa Adagala: Yeah, I am wandering when we come to Transitional could we

consider this?

Com. Mutakha Kangu: So, we can make a note, we will look at it?

Com. Kavetsa Adagala: Yeah, because it is something actually that will not be for all time.

A Commissioner: Exactly.

Com. Mutakha Kangu: Fine, fine.

Com. Kavetsa Adagala: Thank you Wambua, I passed the test.

Com. Mutakha Kangu: So--

Com. Paul Wambua: Let me with your permission, Chair, if you permit me. With the

permission of the-- The point I wanted to raise is what happens to this kind of formulation,

because if it is Transitional and it is in the main body of the Constitution, what would happen

after the other legislation comes into effect? Is it self-repealing or what?

A Commissioner: Nyegenye has an answer.


Com. Wanjiku Kabira: It is not transitional.

Com. Mutakha Kangu: Nyegenye you have something?

Jeremiah Nyegenye: Chair--


Jeremiah Nyegenye: --in practice if and when this gets spent, it will just be deleted from the

Constitution, and it will just be indicated that it is spent.

Com. Mutakha Kangu: Yes. So, we come back at 2 p.m and I would like to repeat that when

we say 2 p.m we mean 2 p.m, not 2.30 p.m, not 3 p.m. Let us please come back at 2 p.m.

Meeting Adjourned at 12.05 pm.

CONSTITUTION OF KENYA REVIEW COMMISSION

VERIFICATION OF THE DRAFT CONSTITUTION, CONTINUATION OF CHAPTER 14 – DEVOLVED GOVERNMENT HELD AT CKRC BOARDROOM, KENCOM

HOUSE ON 31 ST AUGUST 2004.


The meeting was called to order at 10.45 a.m. with Com. Wanjiku Kabira in the Chair.

Session Chair - Com. Wanjiku Kabira

Rapporteur - Com. Mutakha Kangu

Topic - Chapter 14 – Devolution of Power

Com. Bernard Njoroge: Tunamshukuru Mungu kwa siku hii.

Tunakushukuru kwa ajili ya uhai uliotupatia kwa ajili ya mapenzi yako na tunakushukuru kwa

ajili ya familia zetu, na kwa ajili ya kazi ambayo umetuajiri. Utusaidie leo katika mawazo yetu.

Tutimize wajibu wetu tukikuangalia Wew, utuongoze na tunaomba haya kwa Jina Lako. Amen.

Com. Wanjiku Kabira: Okay, thank you. Can I-- So we want to continue with Devolution

and I was going to say that in the case of Devolution, we want to go through the Chapter as it is

at present and then we will look at the corrigendum. So, I hope we will make sure that

everybody has the corrigendum because the corrigendum takes away the information that went to

Public Finance, Legislature, Public Service and we will confirm that what was in the

corrigendum has been taken to Representation and so on, that it has been taken to those Chapters.

But we will complete the Chapter as it is to begin with and then we will go to the corrigendum

because what we had in the Devolution actually falls in line with what we agreed upon that we

are looking at the document for the 26th plus the corrigendum, vis-a-vis the document of the 23rd.

So, 213 is where we stopped in the document of the 23rd and 213 on Regional executive

committee corresponds with 238--


Com. Wanjiku Kabira: Okay.

Com. Abida Ali-Aroni: 213 of the page or the Article?

Com. Wanjiku Kabira: No, 213 of the Article on page 92.

A Commissioner: Which version? of 271

Last printed 9/24/2004 02:39:00 PM

Com. Wanjiku Kabira: 23rd. I thought we agreed we begin with the 23rd?

Commissioners: Yes.

Com. Wanjiku Kabira: Okay, yeah. 23rd, page 92, Article 213 and the other one is 238, page

150 of the 26th. Aiye, Bishop prayed and left? (Laughter).


Com. Wanjiku Kabira: Okay. (Laughter). So, we are together?


Com. Wanjiku Kabira: Now, 213(a) (i) and (ii) corresponds with 238(a), “regional chief

executive and a deputy…” (i) and (ii) is the same.

A Commissioner: Yeah, then (b).

Com. Wanjiku Kabira: Then (b)--

Com. Abida Ali-Aroni: Point of Order. There is Bishop.

Com. Wanjiku Kabira: Okay, welcome back, Bishop.

Com. Mutakha Kangu: Okay, let us proceed now.

Com. Wanjiku Kabira: Okay, 213(1) (b) corresponds with 238(b). They are the same, almost

word for word, yeah. Then 213(2) correspond with 238(2). So, can we approve that particular

provision and then worry about the other provisions, eh?



Com. Wanjiku Kabira: Okay, I will take you through. So, we approve 213 and then we go

back now to the original Draft, 238(3).

Now, 238(3) appears in 231 of the 23rd Draft. You know, all those things about eligibility of

various executives, qualifications and so on are put together in 231(a) and 231(b). So, those two

are taken care of, okay? Number (3) is taken care of.

A Commissioner: 231.

Com. Wanjiku Kabira: Okay, 231. Now, it says that “A person is eligible to be a member of

regional executive committee if that person is qualified for membership of the National

Assembly and then has been resident in the region, district or location concerned throughout the

period of twelve months…”, which we discussed last week, “…immediately before the date of

the election or appointment”. And what we have in (b) says, “meets the requirements relating to

residency…”, it is the same, “…in the region”. I think Nyegenye explained last week why they

put twelve months. Is that correct? Yeah, you remember? So, we do not have to go back to the

explanation again.

So, (3) is taken care of and then we have number (4) on the next page where we have the illness

or the absence of Regional chief executive, the regional chief executive, okay, sorry, they hold

office for a term of five years. Okay, number (4) “during the illness or absence of a regional

chief executive…” “…the deputy regional…” “…and has all the functions…”. That one is

missing but--

A Commissioner: 4, 5 and 6.

Com. Wanjiku Kabira: Yeah. 4, 5 and 6 are actually missing although if you look at 232,

Procedures and internal organization of devolved government bodies. “Until relevant provisions

are made by an Act of Parliament for the purposes of Article 230…” which is the various

laws…”-- “…each assembly, council or executive committee established by this Chapter may,


by resolution, regulate its own procedure and internal organization”. I do not know whether--

But maybe we should ask Nyegenye to explain whether--

Com. Mutakha Kangu: Nyegenye, any explanation on these three?

Jeremiah Nyegenye: Yes. Thank you, Mr. Chairman. Clause (4) is to be found in Article 232

(2).

Com. Mutakha Kangu: 232(2).

Jeremiah Nyegenye: Yes.

Com. Mutakha Kangu: And (5)?

Jeremiah Nyegenye: 5 is 226.

Com. Mutakha Kangu: 226, Terms of office, eh?



Jeremiah Nyegenye: (6) is 232(2) (a).

Com. Mutakha Kangu: 232(2) (a). Are we happy with that?


Com. Mutakha Kangu: So, we verify and confirm? So, Wanjiku, let us move to the next

Article.



Com. Mutakha Kangu: But I asked--

Com. Wanjiku Kabira: It has been explained.

A Commissioner: No one answered you. You just asked and went ahead.

Com. Mutakha Kangu: Okay, fine, can we hear from you, Dr. Swazuri?

Com. Mohammed Swazuri: Yes. 232(2) (a)--

(Inaudible discussions on the floor).

Com. Charles Maranga: You know--

Com. Wanjiku Kabira: It says 232(a).

Com. Charles Maranga: Yes, “the appointment or election and removal of persons as…” But

(4) is talking about, “during the illness or absence of a regional chief executive, the deputy

regional chief executive has all the functions, powers and responsibilities of the regional chief

executive”. That is not covered anywhere.

Com. Wanjiku Kabira: Yeah, 232(1).

Com. Paul Wambua: 232(1), “Until relevant provision is made by an Act of Parliament for the

purposes of Article 230, each assembly, council, executive committee established by this

Chapter may, by resolution, regulate its own procedure…”. So, it is intended that will go to an

Act of Parliament.

Com. Charles Maranga: Let me now ask another question.

Com. Paul Wambua: Okay, so (2)(a)--



Com. Paul Wambua: I am on the floor. (2)(a), “confers powers of appointment, removal of

the chairperson and deputy chairpersons”. So, it is covered.


Com. Charles Maranga: If you look at 239, “Election of regional premier and deputy…” I do

not know where the premier and deputy-- Those are elected persons. So, you cannot appoint

them. They are elected. The other point here is that 231 to me looks like a Transitional

Provision. Immediately that Act of Parliament is in place that is a transitional provision, to my

understanding. Unless to the contrary because 231 - the way it is phrased is like once that one is

done, then that Act of Parliament takes precedence over any other. So, I think we want to make

this one clear.

Com. Mutakha Kangu: Nyegenye, do you have anything to add, given the concerns that have

been raised?

Jeremiah Nyegenye: Thank you, Chairman. The head note speaks of qualification for election

or appointment, just to cover the concern about appointment and election and then with regard to

the concern that this is transitional, interim provisions are serving more or less the same

functions as transitional provisions. So that would be correct. But my view would have been

that (4) is adequately catered for.

Com. Mutakha Kangu: What is the position of the members? Are we adequately covered or

not? Yes, Maranga.

Com. Charles Maranga: You know the Article 4 which we are discussing is talking about

“during the illness or the absence of a regional chief executive”. “The deputy regional chief

executive has all the functions, powers and responsibilities of the regional chief executive”. If

you go to Article 214, Election of regional premier and deputy regional premier, these two

persons are elected. So, for avoidance of doubt the deputy should automatically take over the


functions of the regional premier and I think we want to be clear about that. There is no

Committee which is going to appoint somebody, that now we are going to appoint you to act in

an acting capacity.

Com. Mutakha Kangu: Then Wambua.

Com. Paul Wambua: I think the principle, Chair, we are concerned with is whether we want to

write too many details in the Constitution. The moment we make it very clear that under 232,

there will be an Act of Parliament passed to regulate how these elections and appointments are to

be done, then I do not think we need these details which are contained in 238(4). I think that is

the thing we should address.

Com. Mutakha Kangu: Any other view? Well, in the circumstances, I think, let us verify and

confirm but note what Maranga has raised. I think it can move us forward. Is that okay,

Nyegenye? Make a notation on (4)? Fine?


Com. Mutakha Kangu: I thought we are ruling in your favour?

Com. Charles Maranga: Yeah, that is okay but what I also want to add is that you know very

well this would be a political position where somebody is elected and he is supposed to-- It is the

same procedure which we follow where, for example, in the absence of the President then the

Deputy President automatically acts, in the absence of the two and so on. There is order and I

think this sub article is trying to bring order to that kind of organization.

Com. Mutakha Kangu: So, a note on (4), the rest are covered. Can we then move to the next

Article?

Com. Wanjiku Kabira: Okay, thank you. 214 is in the other document 239. 214(1) is

equivalent to 239(1) except that they have edited out some words. They have edited out the last

one and a half sentences “…(Other than those who are at the time delegates to the regional


legislative assembly).” The reason for this was “A regional premier and a deputy regional

premier shall each be elected by an electoral college consisting of all the elected members of

district councils within the region (other than those who are at the time delegates to the regional

legislative assembly). The argument for this was that they would have a conflict of interest, you

know, to actually stand for regional or deputy premier but those words were left out.


Com. Mutakha Kangu: I think-- We were consulting. We are happy with the leaving out of

those words because I think what we were trying to capture was that at the conceptual level, we

were saying that members of the regional assembly would have a right to sit in their respective

district councils because elections to the regional assembly are based on representation of the

districts and we were saying that those who come from a specific district would have a right to

sit in the district council and therefore, they are the ones who would not be allowed to participate

in the elections of the regional premier. But I think what was written here was not bringing out

that message, so I think it is better left the way it is unless members have something else to raise.


Com. Mohammed Swazuri: The one of the 26th?

Com. Mutakha Kangu: No, in the one of the 23rd. The one of 23rd.

Com. Wanjiku Kabira: We retain the one of 23rd as it is.

Com. Mutakha Kangu: Because in the 26th one, those words in the brackets do not seem to be

bringing out the message or, Nyegenye, you have something?

Jeremiah Nyegenye: Yes. Thank you, Chairman. I would like to draw your attention also to

page 151 of the corrigendum where those words were actually struck out.

Com. Mutakha Kangu: Yeah. I think we should be cross-checking.


Com. Wanjiku Kabira: Okay, fine. So, we move on?

Com. Charles Maranga: Yeah, that is fine.

Com. Wanjiku Kabira: Okay, thank you. Now, 214(2) corresponds to 239(2) and 214(3)

corresponds to 239(3). It is the same.

Com. Mutakha Kangu: Any issue? We are okay? So, let us verify and confirm that and we

move to 215.

Com. Wanjiku Kabira: 215, Election of mayor and deputy mayor of Nairobi, which

corresponds to 240 of the 26th Draft, and actually it is the same, so there is not much discussion.

So, 216?

Com. Mutakha Kangu: 215, we are okay?

Commissioners: Yeah.

Com. Mutakha Kangu: So, we verify and confirm.

Com. Wanjiku Kabira: Now, 216, Functions of regional executive committee, corresponds to

241. 216(1) corresponds to 241(1). Now, 216(2) corresponds to 241(2) and then we have

again--

Com. Mutakha Kangu: (3) is left out.

Com. Wanjiku Kabira: Number (3) is left out. “Members of the regional executive shall act in

accordance with them…”. I know we have heard this explanation, even in Mombasa, once or

twice but maybe--

Com. Mutakha Kangu: But, Nyegenye, you can repeat or if you have a different explanation.

(Laughter).


Jeremiah Nyegenye: No, Mr. Chairman, I do not have a different organization. (Laughter).

Sorry, a different explanation. It is just that the requirement worked in accordance with the

Constitution is superfluous. It is a requirement on every person. So that is not felt to be

necessary and it would also give the impression that anyone for whom it is not specifically stated

is not required to act in accordance with the Constitution. The (b) part, I think, is covered in

216(2).

Com. Mutakha Kangu: 216 2), eh?

Jeremiah Nyegenye: Yes. That is the essence of being accountable without being too specific

and too particular. The essence of being accountable is to provide full and regular reports.

Com. Mutakha Kangu: And if you look at the Supremacy clause of the Constitution, “This

Constitution is the supreme law of the Republic and binds all state organs at all levels of

government”. I think that captures the aspect of the Constitution, isn’t it? So, are we satisfied

with that?


Com. Mutakha Kangu: We can verify and confirm?

Com. Abdirizak Nunow: (Inaudible).

Com. Mutakha Kangu: The omission.

Com. Abdirizak Nunow: We need to note that we have been doing that so that we say, this has

been left out but no value has been lost.

Com. Mutakha Kangu: Is lost, yeah?

Com. Abdirizak Nunow: Yes.


Com. Mutakha Kangu: Fine.

Com. Wanjiku Kabira: Okay. Thank you. Now, we are at the district level and--


Com. Wanjiku Kabira: --you will find that 242 is missing. Oh, sorry, 217 is equivalent to 243.

So we actually do not have the 242. Maybe what we should do is to approve 217 and ask

Nyegenye for the explanation of 242.

Com. Mutakha Kangu: Nyegenye, 242.

Jeremiah Nyegenye: 242, we could look at the corrigendum, page 152.

Com. Mutakha Kangu: 152, we had deleted, eh?



Com. Wanjiku Kabira: Okay. Because elsewhere-- By the way, later on, we talk about

Nairobi being managed through an Act of Parliament, which is 233.

Com. Mutakha Kangu: Yeah, yeah. So, in fact, the point Nyegenye is mentioning is that by

the time we were going to Plenary with the corrigendum, we had already left it out. So, it is not

an Article we should be considering as part of what was passed by the Conference. It had

already been left out in the corrigendum, at page 152 of the corrigendum. Eheh?

Com. Wanjiku Kabira: Okay, we are through with 217, eh?

Com. Mutakha Kangu: 217, you are okay?


Commissioners: Yes.

Com. Wanjiku Kabira: Okay, 218, the Legislative authority of district councils. 218(1) is

equivalent to--


Com. Wanjiku Kabira: 244(1). 218(2) is equivalent to 244(2) and (3) is equivalent to 244(3).

Com. Mutakha Kangu: Mmh. How about (5)?

Com. Wanjiku Kabira: I thought we approve this part--


Com. Wanjiku Kabira: --and then we deal with the other clauses.

Com. Mutakha Kangu: Are we happy with those ones before we look at the omitted (5)?

Maranga, anything?

Com. Charles Maranga: Yeah. But (3) is not the same. It is different. 218(3) is not the same

as 244(3).


Com. Charles Maranga: The meaning is different to me.

Com. Wanjiku Kabira: Okay. (Reading through). Yeah, it is different. I am sorry.

Com. Mutakha Kangu: Nyegenye, any explanation on that?

Jeremiah Nyegenye: Mr. Chairman, 218(3) is 244(5) (a).


Com. Mutakha Kangu: 244(5) (a) is 218(3). How about 244(3)?

Jeremiah Nyegenye: 244(3), unless we can find it elsewhere and I do not know that we will, it

does not seem as if it is something you need to say because that is the way they will operate

anyway. The relationship between the district council and the regional council, it seemed to be a

stating of the obvious.

Com. Mutakha Kangu: Dr. Swazuri.

Com. Mohammed Swazuri: Supposing they do not do that, how can you catch them? You

should only state it.

Jeremiah Nyegenye: Mr. Chairman, they will be in violation of the Devolution principles of

negotiation, co-operation and what was the other one? And?

Com. Wanjiku Kabira: Co-ordination.

Jeremiah Nyegenye: And inter-dependence and co-ordination.


Com. Paul Wambua: I was wondering, what is the effect of the use of the word “may” as used

in (3)? Is it (3) or (2)? Just following what Nyegenye has said, does it really add anything?

Com. Mutakha Kangu: Now, I think the intention we had was that a district government may

notice a pressing area for legislation for a matter concerning them and the wider region and

therefore, a matter outside the jurisdiction of the district government. So, they may bring it to

the attention of the regional assembly that there is need for legislation on this area in our region.

Can you as the regional assembly, proceed to legislate on this area so that we can be able to run

our affairs in the district with the legislation? We would have done that ourselves but this is

outside our jurisdiction. It is within your jurisdiction. That was the intention we had, so that we

are saying that legislation at the regional level should not just be left to the regional government


alone. If the lower levels can suggest something, they should have an avenue to initiate and

suggest to the regional assembly to take it up. That is all that we had in mind. So, I do not

know. Prof, you wanted to say something?

Com. Idha Salim: I was just saying that we need the equivalent of that and it is a very

important one.


Com. Idha Salim: Those circumstances may arise and if they do, how do you deal with them?

Com. Mutakha Kangu: I think I will suggest that we rule that-- We note that (3) of 244 is

missing and that it may be worthwhile to have it back.

Com. Paul Wambua: (Inaudible).

Com. Mutakha Kangu: You know, your question was on the use of the term “may”, probably

in contradistinction to the use of the term “shall” and we are not imposing a duty on the district

governments to recommend legislation to the regional assembly but we are allowing them room

to do so if they find it necessary.

Com. Paul Wambua: And the other thing, Chair, then even assuming that were the case and

you think that is something which should go to legislation.

Com. Mutakha Kangu: Yes, Maranga.

Com. Charles Maranga: I think Gicheru did explain the use of the words “may” and “shall”. I

want to request that Gicheru explains once more.

Com. Mutakha Kangu: Gicheru, can you repeat if you do not have a different explanation?

(Laughter and inaudible comments on the floor).


Ndoria Gicheru: Mr. Chairman, I think in this context, “may” means “permissive”. It has its

ordinary meaning. But what I had explained was that, there are cases where “may” may mean

“shall”. And I said we have a long catalogue of judicial decisions on the point. So, the context

in which these expressions are used, is very important for the purposes of interpretation.

Com. Mutakha Kangu: Here they have mentioned the Judiciary. You have something to say?

(Laughter).

Ndoria Gicheru: Yeah, yeah, in this particular case here, “A district council may…”, well, it

appears that it is discretionary. “May” has its ordinary meaning that is “permissive”.

Com. Wanjiku Kabira: So, in this case, it is the ordinary meaning?

Com. Mutakha Kangu: I think the point, Mr. Wambua, is this, that we are giving the district

government a discretion to propose and if I may use Gicheru’s words, it is permissive. We are

granting them permission to do that. And the intention is that, if they do that, nobody should be

able to raise the question, you are not there to tell us what to do. Because one would ask them--

They can be told that, and they would be able to say, “but the Constitution allows us, it gives us

permission to do that”. Because there are situations where the regional assembly may become

rogue and say, “who told you that you can instruct us on what to do?”

Com. Wanjiku Kabira: But I think even in this case, given the powers we have given to the

districts as opposed to the powers of the region, it is more likely that the districts actually would

be the ones saying, “I cannot work with the next district on this issue, unless we have a policy.”

Com. Mutakha Kangu: At a regional level?

Com. Wanjiku Kabira: So, it is a very important provision.

Com. Mutakha Kangu: Yes. Bishop and then we move to Lethome.


Com. Bernard Njoroge: If the district may recommend, do we have an Article like that in the

region? Because then we are saying that this is an important aspect that the region can deal with.

Are they obligated to do that? Do we have-- You see, you are telling the district, you can

recommend this to the region. But do the region have-- Can they act on it? Is there--

Com. Mutakha Kangu: So, enforcement of the recommendation?

Com. Bernard Njoroge: Yeah. Because you are like telling the district, you have a right to do

this, to pass this to the region but there is not an equal obligation within the region to consider

that. So, we either then provide for it or say it was missing or omit this, because then you may

give a recommendation that will never be taken or that can cause conflict between the region and

the districts.

Com. Mutakha Kangu: Maybe Bishop we can deal with that in the inter-governmental dispute

resolution mechanisms. That if they make a recommendation and the region does not act, will

they be allowed to resort to the dispute resolution mechanisms of disputes inter-governmental--

Com. Wanjiku Kabira: Nyegenye has something to say.

Com. Mutakha Kangu: Nyegenye, you have something to say?

Jeremiah Nyegenye: Mr. Chairman, the point raised by Commissioner Bishop is quite

legitimate. But it goes back to what I said, if the principles we have set out mean anything at all,

that these are interdependent, that they are negotiative, that they-- If those provisions mean

anything at all and they do not ring hollow, then this is covered. Because it is unfathomable that

with those provisions, a district can then recommend to the region that, we think this legislation

is required and they ask them, who gave you these powers and what is this all about, and ignore

it. If those provisions have any meaning at all, that should never arise. If they do not, then we

need to provide that and also what Bishop has said, and also require that the regions can also

recommend to the national--



Jeremiah Nyegenye: --and then it would mean that something is seriously wrong. These are

not interdependent, they are not cooperative, they are not negotiative.

Com. Mutakha Kangu: Lethome was next.

Com. Ibrahim Lethome: Thank you, Chair. I think the provision, as it is under section 244 (3),

I think it is necessary. But the same meaning is lost, now when you come to the Draft of the 27 th,

it is lost and we need to capture it there. If I am reading the right Draft. If it corresponds to 218

(3). Is that the case?

Com. Mutakha Kangu: Yes, we--

Com. Ibrahim Lethome: No, it is lost there.

Com. Wanjiku Kabira: 244 (3) is the one we are discussing, eh?

Com. Ibrahim Lethome: 240?

Com. Wanjiku Kabira: 2-- Oh, sorry.

Com. Ibrahim Lethome: No, the Draft of the 26th ,it is 244 (3)--

Com. Wanjiku Kabira: 244 (3), yes.

Com. Ibrahim Lethome: --corresponding to 218 on the Draft of the 27th.


Com. Wanjiku Kabira: No, we are saying that it is not properly covered so we are--

Com. Ibrahim Lethome: It is not-- Yeah, that is what I wanted to say.


Com. Mutakha Kangu: Yeah, he is making the point that it is important--

Com. Ibrahim Lethome: Yeah, it is important--

Com. Mutakha Kangu: --we need to cover it.

Com. Ibrahim Lethome: --it needs to be captured in the Draft that we are verifying.

Com. Mutakha Kangu: Yeah, fine. Judge.

Com. Isaac Lenaola: I think maybe we need to get precisely what Nyegenye is saying, by

looking at the Draft of 23rd. Exactly what Article are we looking at, for that particular question?

Is it 207? Is it 208? I think we need to get the wording, so we do not lose this important aspect

of--

Com. Mutakha Kangu: Wambua. You have gotten the answer, Nyegenye?

Jeremiah Nyegenye: Mr. Chairman, the provision I am referring to, for the contention, is

Article 6 and in particular, clause 2 of Article 6 of the Draft of 23rd.


Com. Paul Wambua: Just a short note, Chair, on what he said. I do not think in view of the

fact that we will be working on the basis of principles, you can push this to dispute resolution.

Remember, it is just a recommendation, unless you want to make it a mandatory provision that

they shall comply. In which case as Bishop says, there has to be another provision to impose a

duty on the region to act. You cannot push it through the district resolution. I think we better

confine it to the principles, as stated.

Com. Mutakha Kangu: Yes, Judge.


Com. Isaac Lenaola: Having now seen Article 6, my view is that this Article should not be lost

by saying it is covered in the consultative, interdependent and negotiative process. Because if

you look at 207 (3), for example, clearly the Senate is obligated to provide an institution through

which devolved governments share and participate in the formulation and enactment of national

legislation and that is a very important provision as regards the Senate and devolved units. Yet

between the region and the districts, we are losing this out by saying, it is covered by principle.

So, if we can carry the same principle in 207 (3), then this provision must remain somewhere to

cover the region and the district.

Com. Mutakha Kangu: Yes. Now, if you recollect, I think last week Commissioner Kavetsa

had a good argument that on a number of issues, we set out principles and after we have set out

principles, we move to the particulars that try to give effect to the principles. So, we can be able

to say that (6) gives us the principle of interdependent, consultation and negotiation. But then

218, that (3) we are talking about, which was in 244, makes a specific provision that some of the

things entailed in this consultation will be that, a district can recommend to the region

legislation.

Then coming to what Wambua was mentioning, I was not saying that. In fact, we should put

specifically in the clause for dispute resolution on how to comply with the recommendations.

But I was saying that, as it is, we leave it that way and if a dispute will arise, if a district

recommends to the region and the region does nothing, we already have provisions for settlement

of disputes. And after those provisions we have said you turn to court as a last resort, after you

have done all other attempts and those attempts would be in terms of (6), consultation,

negotiation-- And if you fail, then you go to court. So, I think we may just need to make a note

that 44 (3) may be useful.

A Commissioner: I think you are right.

Com. Mutakha Kangu: So, what next, the other one was?

Com. Wanjiku Kabira: No, the other is--


Com. Mutakha Kangu: Nyegenye had pointed to us (5) (a).


Com. Mutakha Kangu: 44 (5) (a). How about (b) and (c)?

Com. Wanjiku Kabira: I was going to go on to that one.

Com. Mutakha Kangu: Okay, okay, let us pass over to Wanjiku.

Com. Wanjiku Kabira: Number (5)(b), if you check-- (5)(b) is to be found in 227 (a). Let us

see whether that is where it is. “A regional legislative assembly…”

A Commissioner: 22?

Com. Wanjiku Kabira: 227. Power to summon witnesses.

Com. Mutakha Kangu: Yeah, yeah.

Com. Wanjiku Kabira: And then 227 (b) will correspond to the (c) of that other one. Is that

okay? 224 (5) corresponds to 227 (a) and (b), and then (c) corresponds to 227(b). The words are

even the same. So, I do not think--

Com. Mutakha Kangu: Yeah, yeah. So, are we okay?

A Commissioner: Point number?

Com. Mutakha Kangu: 244 (5) (b) and (c) are at 227 (a) and (b). Now, can we look at (4),

Nyegenye, any explanation on (4)?

Jeremiah Nyegenye: Yes, Mr. Chairman, that is to be found at the Fifth Schedule, item 8. Item

8 of the Fifth Schedule of the Draft of the 23rd.


Com. Mutakha Kangu: Fifth Schedule eh? Page?

Jeremiah Nyegenye: Let me look for it.

Com. Mutakha Kangu: Item 8 eh? Okay, so are we happy with that? Fifth Schedule, page 154

item 8, that is the one--

Jeremiah Nyegenye: Fourth Schedule.

A Commissioner: Page 156.

Com. Mutakha Kangu: 156, eh, okay, item 8.

Jeremiah Nyegenye: No, no, no, it is page 1-- Sorry, it is the Fourth Schedule, Mr. Chairman.

Item 8 is on page 154. Sorry about that.

Com. Mutakha Kangu: The Fourth Schedule, not Fifth.

Jeremiah Nyegenye: Yes, sorry about that.

Com. Mutakha Kangu: Yes. The Schedule dealing with the Assignment of functions?


Com. Paul Wambua: No, Chair, there is something-- If you go to 154, item 8 is dealing with

District planning, statistics, land survey, and mapping and boundaries and housing. And if you

look at (4) of 244, it is totally different. “A district council may formulate plans and policies for

the management and exploitation of the district’s resources and development” totally different.

So, I do not think that caters for--

Com. Mutakha Kangu: Nyegenye any response?


Com. Paul Wambua: Unless there is a further explanation to that.

Com. Mutakha Kangu: You have nothing else?

Com. Wanjiku Kabira: So, we are retaining it?

Com. Mutakha Kangu: So, do we note that? (4)? So, let us verify and confirm with

annotation that-- Or Wanjiku you have--

Com. Wanjiku Kabira: Yes, here at sub-section (4)--

Com. Mutakha Kangu: Sub-section (4) of?

Com. Wanjiku Kabira: Be reinstated. We agreed to use the word “reinstated” until Mosonik

has given us better words.

Com. Mutakha Kangu: Maybe Lethome we can give you the assignment to look him up

Com. Wanjiku Kabira: I think for the-- I am just saying for the time being, that

“reinstatement” means, we think this is a provision, that if lost we will have lost--

Com. Mutakha Kangu: Some value?

Com. Wanjiku Kabira: Yes, some value.

Com. Mutakha Kangu: So, we are done with 218.

Com. Wanjiku Kabira: 218 and 227.

Com. Mutakha Kangu: Yes, Lethome.

Com. Ibrahim Lethome: 244 (5) (a), I do not know whether we have covered it.


Com. Charles Maranga: It is there.

Com. Ibrahim Lethome: Oh, it is there? Oh, okay.

Com. Mutakha Kangu: So, you are satisfied Lethome?

Com. Ibrahim Lethome: Not yet, until I see it. Let me see it.

Com. Mutakha Kangu: Now, so we verify and confirm 218, we also verify and confirm 227.

Com. Wanjiku Kabira: Okay, and reinstate (4).

Com. Mutakha Kangu: With the notations on (4) and (3). Yes, Nyegenye.

Jeremiah Nyegenye: Mr. Chairman, my attention has just been drawn to the fact that actually

(4), the one we want to reinstate, is to be found at 222 (3), in exactly the same words.

Com. Mutakha Kangu: 222 (3)?


Com. Wanjiku Kabira: Oh, yeah, okay.

Com. Mutakha Kangu: Oh, Functions of district executive committee.



Com. Mutakha Kangu: No, Nyegenye, those are Functions of a district executive committee

but we are dealing with functions of the district council.


Jeremiah Nyegenye: There is a problem.

Com. Mutakha Kangu: Yes. You know, the approach we took is that, we are coming out with

a near clear separation of powers by establishing separate institutions at each devolved level. We

establish a legislative institution and an executive institution and we demarcate the functions of

each one of those institutions. So, what you are referring us to, is covering the executive

institution, but (4) is covering the legislative institution. So, I think let us leave the notation as it

was.

Jeremiah Nyegenye: Chairman.


Jeremiah Nyegenye: The two organs cannot surely have exactly the same functions.



Com. Mohammed Swazuri: What Nyegenye is trying to say is that, we do not need 222 (3)

where it is. Okay? We do not need it there, it is wrongly found there.

Com. Wanjiku Kabira: No, I think--

Com. Mutakha Kangu: Yes, Wanjiku.

Com. Wanjiku Kabira: Sorry. You know, again in terms of separating the powers, you know,

the policies and legislation belong to the council. It is the implementation--

Com. Mutakha Kangu: Which belongs to the executive.


Com. Wanjiku Kabira: --which belongs to the Executive. So, we have to separate-- If the

wording is wrong, then we need to--

A Commissioner: To note that.

Com. Wanjiku Kabira: --to note that but we need to separate the two.


Com. Isaac Lenaola: Sorry, I think with that definition, it is in the right place. Policies is an

executive function and so if we brought it to the executive committee, as opposed to taking it to

the legislative authority of the council, then it is properly placed. And so in that context of

separation of powers, let it stay where it is. In which event then our notation on (4) in 244

should go.

Com. Mutakha Kangu: Are we happy with that?

Commissioners: Yes.

Com. Mutakha Kangu: Okay, fine. So, we were saying that we verify 218 and confirm it and

we were also saying, we verify 227 and confirm it because it contains what was in 244. So, let

us verify those two and then move to 219.

Com. Wanjiku Kabira: Okay. 219, on the Election of district councilors 219 (1)(a),

corresponds to 245 (1) (a). Okay? Then 219 (1)(b), corresponds to 245 (1)(b). Now, item (c), in

219, what I remember is that this was actually a motion from the floor. So, it should be in the

decisions of the Conference.


Com. Wanjiku Kabira: The addition of the “persons with disabilities”, was an amendment

from the floor if, I remember.


Com. Charles Maranga: Can we confirm it?

Com. Mutakha Kangu: That we have a (c)?

Com. Wanjiku Kabira: We do, it was actually an amendment from the floor.


Com. Charles Maranga: Chair, you know we are verifying and confirming. So, I would be

more than happy if we get, either the verbatim record confirming that, or a corrigendum for that,

otherwise, we note that.


Com. Abida Ali-Aroni: As Maranga was talking, quietly I have checked the Summary of the

Decisions and we have, “insert a new clause after 1(b) to read as follows: “marginalized groups

including persons with disability, older persons and youth, provided that at least two shall be

persons with disabilities.”” Does that cover? If it covers, then this was a motion moved at the

Plenary.

Com. Mohammed Swazuri: Swazuri.

Com. Wanjiku Kabira: Okay?

Com. Mutakha Kangu: It is okay. Eh-heh so--

Com. Wanjiku Kabira: Okay, now, so we go to 219 (2), which is the same as 245 (3) and then

(3) is the same as (4). (3) in 219 is the same as (4) in 245.

Com. Mutakha Kangu: And (2) is the one missing?

Com. Wanjiku Kabira: Which (2)?


Com. Charles Maranga: Yeah, the one of--

Com. Wanjiku Kabira: Oh, sorry, (2) of 245. In my notes I have put 231. Let us confirm

that--

Com. Mutakha Kangu: It is true.

Com. Wanjiku Kabira: Yeah. Again it is the qualifications yeah?


Com. Wanjiku Kabira: Which was consolidated uh? 231.

Com. Mutakha Kangu: Yes. So, that shows that 245 is fully covered.


Com. Mutakha Kangu: Anybody has anything to raise? So, let us verify and confirm and then

move to 220.

Com. Wanjiku Kabira: Now, 220-- Before I move to 220, let us look at 246 of the Zero Draft.

Now, the whole of 246--

Com. Charles Maranga: Excuse me.


Com. Charles Maranga: I was wondering--



Com. Charles Maranga: On this Article 219 (3) and you also look at Article 245 (4), one talks

of “constituted” another one talks of “elected”. Can there be an explanation?

A Commissioner: It is the same.

Com. Charles Maranga: No, it cannot be the same, “constituted” and “elected”?


Jeremiah Nyegenye: The one talking about “constituted”, had a problem because it is really

“elected for a term of five years”. So, it was just a replacement of “constituted” with a more

correct term, which from the scheme of the rest of the events, is an election.

Com. Mutakha Kangu: I see Maranga has understood, so we can move on to-- Wanjiku let us

move to 220.

Com. Wanjiku Kabira: I wanted us to move to 246--

Com. Mutakha Kangu: 246, yes.

Com. Wanjiku Kabira: --of the Zero Draft. Let us see whether it is covered in--

Com. Mutakha Kangu: Speaker and Deputy Speaker.

Com. Wanjiku Kabira: The Procedures and internal organization of devolved governments--


Com. Wanjiku Kabira: 232 of the 23rd. All these have been removed and consolidated.

Com. Mutakha Kangu: Nyegenye, any explanation?


Jeremiah Nyegenye: Mr. Chairman, 220 (1) and (2) is 248 (1) and (2), then (3) and (4) is 231

and 232 (2).

Com. Mutakha Kangu: No, we are on 246 of the Zero Draft.

Jeremiah Nyegenye: A-ha!

Com. Mutakha Kangu: Do you have anything to say on that? Gicheru or Nyegenye?

Jeremiah Nyegenye: Yes, it is covered in 232 (2)(a), except that the wording has been changed

to “chairperson” and “deputy chairperson”.


Commissioners: No.

Com. Mutakha Kangu: Okay, any good reason for, or any reason for changing from “speaker”

to “chairperson”?

Com. Wanjiku Kabira: (Inaudible).


Com. Charles Maranga: Chair, I think it is clear that there is a big change on this Article and

given that the district council is a legislative organ at the level of the devolved unit, I think we

need to maintain the word “speaker” for that level. And I do not see-- There is no good reason

as to why they have changed and I think we need to restore that Article in its original format or

formulation.

Com. Mutakha Kangu: Gicheru, do you have anything?


Ndoria Gicheru: Not really, except to point out that, I think it might be advisable to maintain

the dignity of the speaker at the national level. (Inaudible discussions on the floor). Not calling

people at this--

(Laughter).

Com. Mutakha Kangu: Let us give Gicheru time, let us hear him.

Ndoria Gicheru: Personally, I was opposed to the use of the term “speaker” at that level. Let

us have it at the national level then, we can have, in fact other terminology, I mean regional

terminology for lower levels. In fact I remember I had given somebody an assignment to look at

African traditions, and what not and rulers, to come up with equivalent terms. But I think we can

dispense with the use of this term at this level.

Com. Mutakha Kangu: Kavetsa has something to say.

Com. Wanjiku Kabira: (Laughter). I thought the power was at the bottom, not at the top.

Com. Kavetsa Adagala: For the first time I have found someone whom I can really second,

Gicheru! (Laughter). Not on the dignity of the national but on the terminology at the-- I do not

know what he needs, he says he gave someone a research to do, I thought I would assist.

Com. Mutakha Kangu: You are right, because our intention is that in fact the governments we

are creating at the lower level, deserve higher dignity that even the higher level. So, the reason

of dignity may not be very good. But--

Com. Wanjiku Kabira: I was actually thinking about the same. If that is the reasoning, then it

is the wrong reasoning.

Com. Mutakha Kangu: Gicheru, you have something.


Ndoria Gicheru: No, I did not want that point to be emphasized. (Laughter). The idea here is

to get the terminology indigenized. To get indigenous terms, local terms, equivalent expressions

from our traditional leaderships, to replace these ones. But also to avoid confusion, when

somebody says, all over the country, “speaker” (laughter) we have to be always saying “speaker

of the National Assembly”, not speaker-- Because that would be confused with speaker from

the-- (Laughter). So, it is a matter of convenience, we are not belittling the positions held by

these people, but if we can get a more suitable convenient terminology, I think that would be

preferable.

Com. Mutakha Kangu: The problem we have with the explanation you have given, perhaps I

would be willing to be persuaded to say, let us use a different term from what is used at the

national level. But the term you have chosen is misleading. We are coming from a history of

county councils that are headed by chairpersons and you know there are county councils that are

fused. They are not separated the way we have done where we are separating an executive arm

which is headed by a premier at regional level and a governor at the district level and a

legislative arm which has to be presided over by a speaker. So, if we use the term “chairperson”,

with our people who are still in the mode of the county councils that have a chairperson who is

supposed to be the political head and at the same time presides at the meetings, we will cause

confusion. So, perhaps if we talked about a presiding officer--

Number two, if you look at the clause you are referring us to, that is clause 232, it is headed;

Procedures and internal organization of devolved government bodies. So, it does not come out

very clearly that we are talking about persons to preside over the legislative body. It appears

very general. So, we need to be a bit careful. Maranga.

Com. Charles Maranga: Chair, that is the very reason why I felt that, that particular Article has

been mutilated and I feel that the content of that Article is not fully reflected under the new

Article 232. So, my own proposal was going to be that, okay, we might use a different term for

the speaker but the content of that Article needs to remain in its entirety and stand out clearly.

This is because, one of the problems we have been having at the lower levels of governance is

the issue, who should chair the meeting and I think even chairing the meeting becomes a

problem. So, I think we need to provide for that kind of position clearly in the Constitution so


that we can protect the devolved units in terms of their day-to-day activities and in terms of

running the meetings.

Com. Mutakha Kangu: Let us hear Gicheru again.

Ndoria Gicheru: I just wanted to point out that Article 232 does not preclude the use of that

terminology if it is so decided in accordance with that Article 232. It may be decided to use the

same terminology. So, there is no preclusion of those terms. If later it is decided that, that is the

correct terminology, it can be used, it can be reinstated.

Com. Mutakha Kangu: Raiji and then Nunow.

Com. Riunga Raiji: Thank you, Chair. I think this is an interesting debate but I think really,

we are belabouring the point. First of all, I do not see any reason why the one terminology

should be restricted to one person. There can be as many speakers as there are assemblies even

at the location if need be and there is also need for uniformity. I think we are going back to the

system we are trying to go away from, where, for example, the use of the word “president” was

banned for anybody else who presides as if that would take away anything from the President. I

think this reasoning is based on ego. I have no problem if some local equivalent could be found

but for now, I would recommend that there is nothing special about the Speaker of the National

Assembly as opposed to the locational speaker if one is there.

(Laughter).

Com. Riunga Raiji: Dr. Nunow.

Com. Abdirizak Nunow: Thank you, Mr. Chairman. Raiji has more or less said what I intended

to say. But for lack of a local indigenous terminology, I think we should keep to what the

Conference passed because the issues of chairman and chairpersons are also multiple and they

are also being used. The idea here is multiplicity. The NGO heads are chairpersons, certain

committees are headed by chairpersons and chairman or chairperson is everywhere. So, this I

think, is an institution that is supposed to relieve part of the work of the National Assembly


because the National Assembly now is making all the legislation even for the county councils

other than by-laws. Some of the legislations that are area specific that concern tax and other

things will be done at that legislative level. So, I think the speaker of the legislative assembly at

the regional level is more important than the speaker at the national level because those are the

people who address day to day affairs and issues of concern in terms of development and

progress of society. So, we should not shy away from that. The Conference has passed it and I

do not think we should belabour the point. I propose that we reinstate that formulation.


Com. Bernard Njoroge: I know the Conference passed, but you will have some difficulties. As

many speakers as we have, every time the Newspapers write, they must qualify-- “Is the speaker

of the locational council or speaker of-- It is okay if you think but personally, I feel that diversity

is sometimes an art that makes people seem to be more intelligent and therefore if we look for a

local-- I am in favour of that.

Com. Mutakha Kangu: Kavetsa. Maranga, you have spoken many times. I will pass you now.

Com. Kavetsa Adagala: I think the local terminology will be determined at the local level as

they set themselves up. But Bishop told us last week that we are here to do nothing but pass

what the Conference has said. So, I second Nunow.

Com. Mutakha Kangu: Maranga, since you insist, but I hope thereafter you will not.

Com. Charles Maranga: No. Given this Article was passed without an amendment, why don’t

we note and restore it the way Nunow has said and we move on?

Com. Mutakha Kangu: Let us note that and then we move on to 220. Wanjiku you have

something to say?

Com. Wanjiku Kabira: Yes. I was going to say that if the use of language like this is going to

reverse our own general attitude towards the community leadership, then that is why we should

use the name, the Speaker. If it is going to give them greater status and lower a little the status at


the national level, I think then we are moving in the right direction. So, I think we should retain

Speaker.

A Commissioner: That is why we have (Inaudible).

Com. Wanjiku Kabira: Eeh? No, I think Kavetsa said the other time that, and I agree with her,

we need to recognize that we are coming from a specific historical context. Chairman will

actually begin interfering because a Chair is also an implementer. A Speaker knows that the--

His job, like Kaparo, is to preside over legislative council.

Com. Mutakha Kangu: Fine. Let us move on. Wanjiku take us to the next Article, 220. So,

we have noted the need to restore 246.

Com. Wanjiku Kabira: Before we go to 220, can we also deal with 247 so that we get rid of--

which is also--

Com. Mutakha Kangu: That one, I think 232 may be sufficient.

Com. Wanjiku Kabira: Yeah, 232, is that okay? Now, I will move to 220.

Com. Mutakha Kangu: We are saying 247 is covered in 232 on procedures.

Com. Wanjiku Kabira: The one we were just looking at. Okay. 220--

Com. Mutakha Kangu: So, in that event, before you move to 220, can we say therefore that

232 has been verified and confirmed because we have seen a lot of things that are picked from

different places and brought here?

Com. Wanjiku Kabira: Although, in 232, there are many other provisions which are supposed

to be covered.

Com. Mutakha Kangu: Which have not been raised?


Com. Wanjiku Kabira: Which have not been raised.


Com. Paul Wambua: Mr. Chairman, I only wanted to say that we are putting so much hope on

this Article 232 and there is danger in doing that. Everything we are removing, we are saying it

is in 232. How are we going to interpret that all the time? Are we running short of paper or ink

to write?

Com. Mutakha Kangu: Maathai will tell us that actually we should save paper. Okay,

Wanjiku will proceed. Maranga, what is it?

Com. Charles Maranga: On 247, you are saying it is covered under 232 but there is no content

for 247 other than the two sentences I see, “Subject to provision made by Act of Parliament, a

district council is free to regulate its own procedure”, there is nothing else.

Com. Mutakha Kangu: So you are telling us 247 was not adding much or what are you telling

us?

Com. Charles Maranga: No, if you see 247 and 232, then I do not see how you can put it as a

corresponding Article.

Com. Mutakha Kangu: 247 deals with procedures and it was leaving that to an Act of

Parliament, basically saying Parliament will pass legislation to deal with procedures and 232 is

also dealing with--


Com. Wanjiku Kabira: No. 247 has no part two.

Com. Mutakha Kangu: We are saying that--


Com. Charles Maranga: What I want you to note is that 247 corresponds to 232 (1) but 232 (2)

is not there.

Com. Mutakha Kangu: Well, Wanjiku has already noted. We said there are several other

sections that have yielded some of their sub-clauses to 232 and Wanjiku has said there are others

she is yet to reach which also yielded to 232. So, let us leave it pending, we shall confirm it at a

later stage.

Com. Wanjiku Kabira: Okay. We are dealing with 220. District Executive Committee which

corresponds to 248. If you look at 220 (1), “executive authority over districts”, it corresponds to

248 (1) (a) corresponds to (a) and (b) corresponds to (b) and 248 (2) corresponds to 220 (2).

Okay?

Com. Mutakha Kangu: Then (3) and (4).

Com. Wanjiku Kabira: Then we go back to our famous provision, 232. Now, (3), “a person is

eligible…” again, is about qualifications. So, we now go back to 231 and 232.

Com. Mutakha Kangu: And (4).

Com. Wanjiku Kabira: (4) is the one about removal which is 232 now, isn’t it?


Com. Abida Ali-Aroni: Chair--


Com. Abida Ali-Aroni: Where is 232?



Com. Wanjiku Kabira: “A person is eligible to be a district governor or a deputy district

governor if the person is qualified”. It is the same--


Com. Wanjiku Kabira: All the qualifications are-- Yeah, 231 (a).

Com. Charles Maranga: Yeah, but --


Com. Charles Maranga: That is okay, but where is 248 (4)? That is a similar provision which

we had for the deputy premier and if it is not anywhere, then we need to restore that Article.

Com. Mutakha Kangu: Any other comment? Nyegenye and Gicheru, anything?

(Silence).

Com. Mutakha Kangu: So, can we verify and confirm that Article with a notation on (4)?

Com. Ibrahim Lethome: Which Article are we verifying?


Com. Mutakha Kangu: We are verifying 220 against 248 and we are saying some of the things

in 248 went to 231 and others to 232 and (4) is noted as omitted and we want to note that it is

worthwhile. So, we verify and move to 221.

Com. Wanjiku Kabira: Now, 221, Election of district governor and deputy district governor

corresponds to 249. So, 221 (1) corresponds to 249 (1), 221 (2) corresponds to 249 (2)--

Com. Mutakha Kangu: And then (3).


Com. Wanjiku Kabira: --and then we have to deal with (3) which again is 232.

(Laughter).

Com. Mutakha Kangu: Does that capture sub-article (3), Nyegenye? Is it captured at 232?

Com. Wanjiku Kabira: 232 (2) (a) where we have removals.

Com. Mutakha Kangu: So, we verify and confirm?

Com. Ibrahim Lethome: (Inaudible).


Com. Ibrahim Lethome: Let me speak for myself.

Com. Mutakha Kangu: Please.

Com. Ibrahim Lethome: At the speed at which Professor is taking us, we are confused because

we have to go forth and backwards. Can she come back again, please, slowly?

Com. Mutakha Kangu: Professor, take them one by one so that we have everybody on board.

Com. Wanjiku Kabira: Was it 22--


Com. Ibrahim Lethome: Of which Draft?

Com. Mutakha Kangu: Of the 23rd.


Com. Wanjiku Kabira: 221 (1) of the 23rd, corresponds to 249 of the 26th (1) and then 221 of

23rd (2) corresponds to 249 (2) of 26th and then number (3)--

Com. Mutakha Kangu: Of 26th.

Com. Wanjiku Kabira: --sub-article (3) is subsumed in 232 sub-article 2 (a).

Com. Mutakha Kangu: Are we okay now?

Com. Ibrahim Lethome: Very okay.

Com. Mutakha Kangu: We verify and confirm? That is Article 221 and then Wanjiku take us

to 222.

Com. Wanjiku Kabira: Okay. 222--

Com. Ibrahim Lethome: I think the way you are verifying is wrong, Kangu.


Com. Ibrahim Lethome: For the records, I think what you are verifying is Article 221 of the

Draft of the 23rd and sub-article 232 (2) (a). For the record, that is how it should read.

Com. Mutakha Kangu: For the record, you have noted, Secretariat? Judge.

Com. Isaack Lenaola: If you look at 232 (2) (a), the removal is “persons as chairpersons and

deputy chairpersons”. 249 (3) is “membership of the steering executive committee”, not the

chairperson or vice chairperson or deputy chairpersons. Therefore, it is other persons other than

those two. Therefore, the removal question for them is not covered. It is still lost.

Com. Mutakha Kangu: We are together on that? So, Nyegenye, a note on that. The note is

that--



Com. Mutakha Kangu: Yeah, I get the point. Dr. Nunow.

Com. Abdirizak Nunow: So, Mr. Chairman, we are saying Article 221 (1) and (2) are okay but

sub-Article (3) has been lost on the previous Article and ought to be restored. Is that what we are

saying?


Com. Abdirizak Nunow: It is not covered elsewhere? Fine.

Com. Wanjiku Kabira: Yes. I think there is no common sense. It will be lost.

Com. Mutakha Kangu: Fine. So, Wanjiku, now take us to 222.

Com. Wanjiku Kabira: Okay. Functions of district executive committee. 222, corresponds to

250. Sorry, 222 (1) (a) of 23rd corresponds to 250 (1) (a) of 26th. 222 (b) corresponds to 250 (d).


Com. Wanjiku Kabira: Yes, it is summarized. (Laughter). Okay, the Fifth Schedule, if you

look at the first part of the sentence, information on the Fifth Schedule, “except to the extent that

this Constitution or national or regional assembly otherwise provides”, that one is left out. Ask

Nyegenye why he left it out.

A Commissioner: What do you say about it?

Com. Mutakha Kangu: Nyegenye, any comment on that?

Jeremiah Nyegenye: I am sure it is with a light touch, Mr. Chairman, why I left it out.


Com. Wanjiku Kabira: Yeah, it is.

Jeremiah Nyegenye: No. I have to think about it. I am sorry I do not have it on hand.


Commissioners: Value lost.

Com. Mutakha Kangu: Wanjiku, what are you commenting on that? Is value lost?

Com. Wanjiku Kabira: No, I do not think so. I think it is clear in the one of 23rd.

Com. Mutakha Kangu: It is okay, there is no much value lost. Okay. Swazuri.

Com. Mohammed Swazuri: I think what is happening, Dr. Nunow is telling me that 222 (b) is

250 (c). So, what of the 250 (b) now?

Com. Wanjiku Kabira: Oh! Yes, sorry. I thought it was--

Com. Abida Ali-Aroni: One is regional legislation; one is the national. So, it is repetition.

Com. Wanjiku Kabira: They are combined in (d) because they implement within the district,

national and regional legislation.

A Commissioner: The other one is better here.


Com. Mutakha Kangu: So, do I take this as a consensus?

Com. Wanjiku Kabira: Let me--



Com. Wanjiku Kabira: I am just wondering about leaving out the--

Com. Mutakha Kangu: Let us give Wanjiku time.

Com. Wanjiku Kabira: I am just wondering about leaving out the reference to the Fifth

Schedule where it is very clear what the various levels of government should implement.

Com. Mutakha Kangu: What do you think? Is it something we should have?

Consultations at the “high” table).

Com. Paul Wambua: The intention is being captured in 222 (b). So, I think we should accept

that and forget about the lengthy provisions of 250 (1) (b) and (c). I think it explains it in a very

clear way. So, I propose that we adopt.

Com. Wanjiku Kabira: We adopt it as it is.

Com. Mutakha Kangu: Then the next one is?

Com. Wanjiku Kabira: The next one is 222 (d)--

Com. Mutakha Kangu: (1) (d)?

Com. Wanjiku Kabira: (1) (d) which corresponds to 250 (c), “co-ordinate the functions of the

district of the…”-- No, I am sorry.

A Commissioner: It corresponds to (d).

Com. Wanjiku Kabira: It corresponds to (d), “coordinate the functions of the district

administration and its departments”. That is (c). It corresponds to (d).


Com. Mutakha Kangu: (d) is on locations.

Com. Wanjiku Kabira: (c) corresponds to (d) of 222.

A Commissioner: (e) corresponds with (d).

Com. Wanjiku Kabira: That is what I said and then (d) corresponds to (e).

Com. Mutakha Kangu: Then (2)?

Com. Wanjiku Kabira: And then (2) corresponds to (2) of 250 and (3) corresponds to--

Com. Mutakha Kangu: To (3).

Com. Wanjiku Kabira: No, let us forget the (3) for now. Let us go to (4).

Com. Abida Ali-Aroni: (Inaudible).

Com. Wanjiku Kabira: No, I will come back to it.

Com. Abida Ali-Aroni: Ooh!

Com. Wanjiku Kabira: (4) of 222 corresponds to (3) of 250. Okay?


Com. Wanjiku Kabira: Then (5) corresponds to (4) of 250, then (6) corresponds to (5) of 250

and we have an additional (3).

Com. Mutakha Kangu: (3) is a new one?

Com. Wanjiku Kabira: It is an addition, yeah. (3) of 222.


Com. Mutakha Kangu: I think it must be what was coming from the legislative arm.


Com. Mutakha Kangu: So, we are saying it is adding value?

Commissioners: Yes.

Com. Wanjiku Kabira: And we approve?

Com. Mutakha Kangu: Nyegenye has something.

Jeremiah Nyegenye: Mr. Chairman, I think from the discussion earlier, this is not where this

belongs. It belongs to the other place where we asked for it to be reinstated.

Com. Abida Ali-Aroni: I think they are opposite.

A Commissioner: They are saying the opposite.

Jeremiah Nyegenye: Pardon? Mr. Chairman, I am saying the opposite because we said the

opposite. In fact-- (Laughter). Yes, Mr. Chairman. Probably, we said it belonged here when it

actually belongs in the other place and not here.

Com. Mutakha Kangu: You realize that what we said was wrong?


Com. Mutakha Kangu: So, instead it should be taken back to the legislature?

Jeremiah Nyegenye: To the district council. This is what the argument of the two Rapporteurs

was; that the policy formulation belongs to the council. If we begin at 221 (1), we see that the

district executive is an implementation organ. So, this is evidently misplaced.


Com. Mutakha Kangu: Lethome or Wanjiku.

Com. Ibrahim Lethome: I just want to support--

Com. Wanjiku Kabira: Are we not mixing them up because who formulates plans because you

translate policies into plans?


Com. Wanjiku Kabira: No, the executive develops the plans, the council deals with the

policies. So, we have mixed the functions here.

Com. Abida Ali-Aroni: We talked about the one (?).

Com. Wanjiku Kabira: It cannot be plans and policies. Either the legislature formulates the

policies and the executive develops the plans.


Com. Mutakha Kangu: So, what are we saying? Either we have it in both or in one and if it is

one, which one? Nyegenye is saying we should have it in the legislature, Wanjiku is saying

maybe we should have it in both.

Com. Wanjiku Kabira: But they are mixed up.

Com. Mutakha Kangu: Judge.

Com. Isaack Lenaola: What is the (Inaudible)?


Com. Wanjiku Kabira: Both.


Com. Isaac Lenaola: My understanding, and this could be totally warped; but I think my

understanding of these functions is that the executive formulates plans and then they implement

legislation.


Com. Isaac Lenaola: Even policy, from where I sit, I think policy is not the business of the

legislature. The executive formulates plans and policies and then legislature formulates the

legislation in which they implement those by the executive committee. Therefore, to me, and

this is against Nyegenye’s good judgement, this is the correct place for this one and this is what

we said earlier. I still stand by my earlier submission that this is the place for this.


Com. Charles Maranga: I want to agree with Justice Lenaola but then, maybe the word which

is missing is where you formulate and implement plans and policies for the purposes of the

executive. The other one on the council, yes they can also formulate plans and policies by

putting up legislation which will be able to be used to implement those policies and programmes.

So, I think we can put it in both but one we have to add the word “implement”.


Ndoria Gicheru: Mr. Chairman, when we are talking about the legislature at the national level,

even at the moment, we talk about Parliament formulating policies. We know in practice those

policies will have been initiated by the executive et cetera, and then taken to Parliament, but it is

Parliament which is taken as having formulated. Once they are proved as having formulated

those policies, then it is the duty of the executive to implement those policies. So, it is arguable

that the proper place for this provision is the district council rather than the executive. So, there

is overlapping in that in practice, we know who initiates some of these things but in the final

analysis we say Parliament formulates policies and that is the duty of the executive to implement

them.


Com. Mutakha Kangu: Prof. we can pick your brains on this.

Com. Okoth Ogendo: Only to say, Chair, that I thought we were verifying rather than rewriting

the Draft and this argument as to whether what should be where, I do not think is relevant here.

If the Conference passed the provision as it is, that is where it is. So, I do not think we need to

argue as to whether the executive formulates policies or plans if that is what the Conference

passed. That is the only question we should ask.

Com. Mutakha Kangu: I think-- Yes, Maranga.

Com. Charles Maranga: I want to inform the Learned Professor that this particular Article,

sub-article (3) was added. It is an addition and maybe the Conference did pass this, then now we

need to make a decision.

Com. Mutakha Kangu: I think the Conference passed it under the legislative arm and I think

the notation we made when we were dealing with the council should be what we should retain

and maybe we can abandon it here. Dr. Nunow.

Com. Abdirizak Nunow: Mr. Chairman, I am inclined to agree to that proposal, that if this

formulation was passed under the district council and the legislative authority, then it belongs to

that part. But I did not see it as we were going through Article 218, which serves as legislative

authority of district council. One of its authorities should be to formulate plans and policies and

it is not there, Article 218. So if we remove it from here we should be sure that we do not leave

it out, because for me it is an important provision, as I see it and it was passed by the Conference

as the Professor says and we put it where it should be. If it was not passed, then my contention is

it adds value but we need to place it where it belongs.

Com. Mutakha Kangu: It was passed under 244, sub-article (4) and we were noting. I think

we have made a notation at that point that it is covered under the Executive but Nyegenye is

telling us that we were wrong, we should in fact have it covered under the Legislature and

instead of arguing on that, since it was passed under the legislative arm of the district, let us


make a notation that it was located in the wrong place, let it be brought back to where it was

passed.

Commissioners: Yes.


Com. Mutakha Kangu: Yeah, but since we are verifying, let us take it where it was to avoid

problems.

Commissioners: Yes.

Com. Mutakha Kangu: So Wanjiku, take us to the next.


Com. Mutakha Kangu: It was 244, which has become 218.

Com. Wanjiku Kabira: And we reinstated it.


Com. Wanjiku Kabira: Okay, now we are at 221. Sorry, it is 22-- No.

Com. Mutakha Kangu: We are now at 223.

Com. Wanjiku Kabira: 223, Locations. Now, 233. Sorry, 223 of 23 rd corresponds to 251,

yeah? Only that the wording is different. “There is established for each location locational

government, consisting of a locational council and location administrator”. 251, “A locational

government, consisting of a locational council…”. It is the same, only the wording is different.

And then we have an added (2) “A locational administrator…” on 223 “…is accountable to the

locational council in exercise of the powers and the performance…” and is a magician which--





Com. Mutakha Kangu: Through the Chair, please. Wanjiku, are you through with that, or we

take the comment?

Com. Wanjiku Kabira: Yeah, I think I am through.

Com. Mutakha Kangu: Yes Maranga, then we come to Lethome.

Com. Charles Maranga: Yeah, okay I have seen it.

Com. Mutakha Kangu: Lethome.

Com. Ibrahim Lethome: No, I was just about to say that the locational administrator is covered

under 251 (1) but it is a little bit different. That is what I was about to say because this one talks

of the locational administrator being the executive authority of the location. So may be there is

nothing of value that I am adding.

Com. Wanjiku Kabira: And that is what we did. (Laughter).

Com. Mutakha Kangu: Are you okay, Lethome?

Com. Ibrahim Lethome: I am okay.

Com. Mutakha Kangu: Fine. So we verify and confirm 2-- Yes, Dr. Swazuri.

Com. Mohammed Swazuri: Two points. 223 - there is an omission of small letter (a).


Com. Wanjiku Kabira: Where?

Com. Mohammed Swazuri: “There is established for each location a locational government”.

I want to adduce-- No, it is not there.


Com. Mohammed Swazuri: No, I am just pin-pointing what I see is important. You may add,

it may not add. And then--

Com. Wanjiku Kabira: Make it read better.

Com. Mohammed Swazuri: Okay, and then when we come to 251in the 26th, it says “a

locational government consisting of a locational council and locational executive committee…”.

Now, where is the locational executive committee in 223?


Com. Mohammed Swazuri: The administrator is the committee?

Com. Mutakha Kangu: Actually, we are making the locational administrator accountable to a

body we have not established. Nyegenye, any comment on that?

Jeremiah Nyegenye: Mr. Chairman, the locational council is actually established. He is

accountable to a locational council but I think that at some point and I do not recall when, and

you, Mr. Chairman I am sure will recall, the idea of a locational executive was dropped at some

point. That is my recollection.

Com. Mutakha Kangu: Wanjiku, any comment on that?

Com. Wanjiku Kabira: I do not remember. (Laughter). Where we established the

committee?


Com. Mutakha Kangu: Eeh.

Com. Wanjiku Kabira: I do not remember right now.

Com. Mutakha Kangu: What was passed? Let us confirm. I think the corrigendum does not

seem to bring out any changes on that. I think let us make that notation Nyegenye, let us note

that and then we note that the addition of two makes value. The rendition of one has omitted

certain aspects which we think add value.

A Commissioner: The aspect.

Commissioners: Yeah, not bad.

Com. Mutakha Kangu: The aspect of the Executive Committee.


Com. Mutakha Kangu: Does that put us together so that we move to the next-- Yes, Nyegenye.

Jeremiah Nyegenye: Mr. Chairman, your corrigendum did not refer to a committee. It referred

to a district executive.

Com. Mutakha Kangu: What page are you at?

Jeremiah Nyegenye: Page 152.

Com. Mutakha Kangu: Of the corrigendum?

Jeremiah Nyegenye: Sorry, do I--

Com. Wanjiku Kabira: But it was in our committee--


Jeremiah Nyegenye: No, no, no.

Com. Wanjiku Kabira: --report that was sent to me.

Jeremiah Nyegenye: No, sorry, I think I have it wrong. Sorry.


Jeremiah Nyegenye: Just forget about that. It is not that, this is referring to the district.

Com. Mutakha Kangu: Okay, Professor Ogendo.

(Laughter).

Com. Okoth Ogendo: Chair, if you look at the original 251 and 254, I think the reason why, in

drafting terms, the Executive Committee was dropped is because 254 says that that executive

power is in the locational administrator.

Com. Mutakha Kangu: Speak up a bit Prof., we are not getting you.

Com. Okoth Ogendo: 254--


Com. Okoth Ogendo: --says “the location administrator is the executive authority at the

location level” and 251 says there is a locational executive committee which would mean, on

face of it, that there is a contradiction. You either have an executive committee or you have the

locational administrator as the executive. And I think what the drafting people did was to leave

254 and remove the executive.

Com. Mutakha Kangu: The contradiction.

Com. Okoth Ogendo: Yeah.


Com. Mutakha Kangu: So what-- Maranga, you have something to say?

Com. Charles Maranga: I think it is important that we establish because it was originally there

under 251, “the locational executive committee”. I think that is why they went ahead to have

254, even though the phrasing of 54 also indicated as if the administrator is the only person

dealing with whatever. But I think we need to have a connection between the locational

executive committee and I think what was needed here is that the locational executive committee

should be a committee in the very sense of it, because this is where policy formulation starts; and

I think it will not be nice to say that an administrator will do for a location. I think I will be

happier if you drop the “administrator” and then retain the “committee”. They can choose one of

their own.

Com. Mutakha Kangu: Raiji. Let us hear Raiji and then Okoth.

Com. Riunga Raiji: I am sorry Chair, I think there appears to be a confusion. You see, if we

look at it-- If we have an executive-- If a committee is the executive authority, then why do you

need a local administrator being also an executive authority? Because then if the executive-- To

whom are they accountable? Because I imagine the scheme which the Drafters were trying to

capture was where you have somebody more less like you have the President and Parliament at

that lower level and I think that appears to be a little bit confused and lost.

Com. Wanjiku Kabira: May be--

Com. Mutakha Kangu: Let Okoth speak and then we come to Wanjiku and then Abida.

Com. Okoth Ogendo: Chair, two things. The administrator is responsible to the council, that is

even clear in both Drafts. It is clearer in the Draft of the 23rd. But I think what we need to do is

to note that the locational executive was deleted out of the original Draft. We do not restore it,

we simply note that that is where it was.

Com. Mutakha Kangu: Wanjiku. Okay, Abida before Wanjiku.


Com. Abida Ali-Aroni: Thank you, Chair. I think the concept of having an executive

committee is different from having the executive authority in one person. So why don’t we note

that, reinstate what was there because we are verifying and note the contradiction. At the next

stage let them decide whether we need an administrator or an executive committee because I

think there are two different things, having one person as executive as compared to a number of

people having the executive authority.


Com. Wanjiku Kabira: I think Abida is closer to what was being discussed at the committee

level, but with the administrator who is actually the chief executive implementing with the

executive committee. I think that is what was understood to-- That was going to be the

Executive Arm while the council remained again – you know – to deal with the policies and so

on. So, I think I would agree that we need to note that the Executive Committee, which is part of

the Executive, is left out.



Com. Isaac Lenaola: My problem is that the Executive Committee only appears at 251 and that

is it. So even in terms of its functions, I do not see it in the body of part 4. So we cannot even

tell from this Draft, what exactly we are meant to do. We are now-- But there must be something

to say about it here apart from—Because when you say in 254, that “The location administrator

is the executive authority of the council”--


Com. Isaac Lenaola: --and then you do not say anything about this committee which you have

mentioned--

Com. Wanjiku Kabira: Mmh.


Com. Isaac Lenaola: --as part of government in 251, there is a lot missing, not just that. There

is a lot more missing.



Com. Abida Ali-Aroni: Sorry, Judge I beg to differ with you. We are talking about the

intentions of Bomas and we are being told by Wanjiku and Kangu that the intention of Bomas

was to have an Executive Committee. So for me, I would-- Working with the administrator, I

would rather we capture both then let them know the contradiction and then it can be sorted out

at another level, other than by us here. Yeah, and the lack of details.

Com. Mutakha Kangu: Maranga, say the last words so that we can conclude.

Com. Charles Maranga: Yeah, I think that is true, that the locational council and the locational

executive committee were intended to be established because even if you come to the district

level, you also find the two bodies where you have the district council and the district executive

committee.

Com. Mutakha Kangu: So can we say this, if I am getting the members correctly, that the

clause on the Executive Committee was omitted and the explanation is that it appeared to

contradict the clause in 254 on the locational administrator. But it will be reasonable to vest the

executive authority of the location in both. So that you will be able to have something that will

say it is vested in the locational administrator working with a locational executive committee. So

that-- You see, the way we have it now, is that we appear to be vesting the executive authority of

the location in two different bodies without connections. And if we are saying our intention is to

have an administrator who works with a committee and not alone, then we vest that authority in

him working with a committee or we vest in a committee chaired by a locational administrator.

Com. Wanjiku Kabira: Who is elected.


Com. Charles Maranga: Yeah, that is okay.

Com. Mutakha Kangu: So we can make that notation, that the part on the Executive

Committee was omitted because there was a contradiction but we observe that it will be better to

vest the executive authority of the location in both. So a rendition that captures both will be

okay. Lethome.

Com. Ibrahim Lethome: You said Maranga is the last one but I think you are re-opening it.

Now, as it is right now in the Draft of the 23rd, there is no contradiction at all, according to me.


Com. Ibrahim Lethome: Because if you look at Article 225 about the functions of the

executive authority that have been vested in the location administrator, sub-article 2 clearly states

that-- No, there is an Article that clearly states that he is accountable to the location council.

Doesn’t that now bring the link that you are trying to bring up yourself, that although he has been

vested with the executive authority as an individual, the location administrator, he is accountable

in exercising that executive authority? He is accountable to the council, which to me is coming

out very clearly and there is no contradiction at all. The contradiction is in the Draft of the 26 th,

according to me.

Com. Mutakha Kangu: No, the position Lethome is this, that all along we have sought to

distinguish between a legislative arm and an executive arm. And in the executive arm we have

had a head with a kind of a Cabinet, a committee, and so we get the entire executive being

answerable to the legislative arm. But here, what is happening is that we have vested the entire

executive authority in a single person, who is answerable to the legislature and people are

arguing that the intention was to vest that executive authority in a group of people who then will

be - in a group - answerable to the council.

Com. Ibrahim Lethome: Then we should retain the rendition of the 26th, as it is. We should

retain that then.


Com. Mutakha Kangu: Okoth.

Com. Okoth Ogendo: Chair, I think what Lethome has pointed out is important. If you are

looking for contradictions, you will find them in the Draft of the 26th.


Com. Okoth Ogendo: If you want to say that that is what Bomas passed, then let us say that is

what Bomas passed, with that contradiction. But we cannot start arguing as to whether you must

always have an Executive. I see no problem whatsoever on the Draft of 23 rd that says, “at the

locational level” because the location may have so few people in the council that instead of

placing up into a council and an executive, all you need is to vest that executive in the

administrator. But I think what we are doing at the moment is saying, what Bomas passed had

an inherent contradiction, in that it created an executive and it also vested executive authority in

the administrator and we leave it at that.

Com. Mutakha Kangu: Raiji.

Com. Riunga Raiji: Thank you, Chair. I think Lethome has more or less made the point. It

was clear we were trying to run away from this colonial chief mentality in the 26 th. It is not

elegantly put and it needs clarity. So I would myself think that we recommend reinstatement of

that and point out there is a contradiction. Because what this other Draft has done; there is no

contradiction but it has reversed the decision by reappointing a chief, an executive chief, as the

head of a location which appears not to be exactly what I think the Delegates wanted.

Com. Mutakha Kangu: So, can we note that? In explaining why that was done may be you

can add what Okoth was saying, that they were thinking in terms of an executive administrator

answerable to the council but we are saying the intention and the decision of the Conference was

to have a committee, the executive authority vested in a committee. Let us note that and then

move to the next.


Com. Wanjiku Kabira: Okay, thank you. We move on to 224, the Locational councils, which

corresponds to 252. “A locational council consists of representatives elected by registered

voters…”.

Com. Mutakha Kangu: 52, eh?

Com. Wanjiku Kabira: Yes, 252 of 26th. And then 224 (2) corresponds to 252 (2).

Com. Mutakha Kangu: Everything is captured?

Com. Wanjiku Kabira: Everything is captured. Yeah.

Com. Mutakha Kangu: So we verify and confirm.

Commissioners: Yes.

Com. Wanjiku Kabira: Okay, 225 of the 23rd corresponds to 254. Sorry, yeah, I may have

skipped one. 254. If you look at 254, you have the first one, sub-article 1, “The location

administrator is the executive authority of the location…” and so on and “is to be elected…”. It

is the same, is it not?

Commissioners: Yes.

Com. Wanjiku Kabira: Now, the 254-- Sorry 225 (2) is--

Com. Mutakha Kangu: Term of office.

Com. Wanjiku Kabira: --again the term of office of the location, “is five years and shall be

eligible for re-election…”. Yes.

Com. Mutakha Kangu: That is an addition.


Com. Wanjiku Kabira: Yeah, but this addition again is the same as what we have in the--

Yeah, under qualification.

Com. Mutakha Kangu: This is the term of office?

Commissioners: No.

Com. Wanjiku Kabira: No, no. “A person is eligible to be a location administrator if that

person has completed four years of secondary education and meets the residency…” you know.

That is 254.

Com. Mutakha Kangu: But the fixing of the five years?

Com. Wanjiku Kabira: Oh, sorry, I was dealing with 254, the 26 th. Now, the fixing of the five

years is added.

Com. Mutakha Kangu: Which we thought was okay. Swazuri, you have something to say?

Kavetsa?

Com. Wanjiku Kabira: Yeah, it is actually “the further term”, I think in-- Sorry, in Kencom it

is “the further term” which is added, not the “five years”.


Com. Wanjiku Kabira: Which corresponds with what we have for the district governor--


Com. Wanjiku Kabira: --and the President.



Com. Wanjiku Kabira: You know the two terms concept which runs all the way down.

Com. Kavetsa Adagala: You know-- Well, I know that we will not change anything, but

completing four years of secondary is quite different from completing and passing four years of

secondary. If you complete four years of secondary and you do not pass, you are a standard

eight.


Com. Kavetsa Adagala: Yeah.


Com. Kavetsa Adagala: Yeah, but you know (laughter) you can also accrue a--

Com. Wanjiku Kabira: Anyway.


Com. Mutakha Kangu: Let us say the point Kavetsa--

Com. Kavetsa Adagala: In other words, we want people with their school leaving certificates,

not with the academic qualification. That is what it means.


Com. Charles Maranga: Chair, we are verifying and confirming what Bomas passed and I

think I want to stick with 254 as it is. So that 2--

Com. Wanjiku Kabira: Which sub-article?


Com. Charles Maranga: No, that is sub-article 254 (1), it is okay, 254 (2) is left out because I

do not see it under 225, so we need to reinstate that.

Com. Wanjiku Kabira: Can I? For this one--

Com. Charles Maranga: Then number 3, sub-article 3, the term of office of a location is five

years. We need to leave it at that but the one of 225, I said “shall be eligible for re-election for a

further and final term of five years”. I think there must be good value as to why they stuck to

five. The point here is that at locational level the turn over must be very high, there are a number

of people and people want to see things changing. So, I think when they say five years, they

meant five years. They did not say re-election. So, this addition of “re-election for a further

final five term or five years” I think is a big change.

Com. Mutakha Kangu: But Maranga, the way it is, if you go by 254, it means there is no limit.

A Commissioner: Yes.

Com. Mutakha Kangu: Someone can re-contest for life.

Com. Charles Maranga: Okay, that is the meaning!

Com. Mutakha Kangu: That is what they passed.

Com. Charles Maranga: Yeah! That is what they passed.

Com. Mutakha Kangu: Nyegenye, do you have any explanation?

Com. Charles Maranga: There is no explanation.

Jeremiah Nyegenye: Mr. Chairman--


Com. Mutakha Kangu: No, we are saying it was passed but they have changed. Does he have

an explanation? That is what I am asking him. You are asking why and that is what I am asking

him to explain! (Laughter).

Jeremiah Nyegenye: Yes, Mr. Chairman, I cannot have an explanation for why they passed it,

but I can have an explanation for the rendition that we have.

Com. Mutakha Kangu: Yes, that is what I am asking.

Jeremiah Nyegenye: Yes. Now, on the first one, I agree entirely with what you are saying and

this was our feeling also. Throughout the Draft, the scheme of the Draft is to limit tenure of

office. This one, if it was left like that, meant that it was in fact the very opposite of what the

Commissioner is saying. If you intend a high turn over-- If you leave it like this, it actually

means you can contest over and over again which was not consistent with the rest of the levels

and everyone else and it did not appear to the Drafting Team that a deliberate effort was made

that this should be different. It was never evident that it was intended that this one be different.

That is on number one.

Number two, on eligibility and the number of years of secondary education. As pointed out by

Commissioner Adagala, that is completely ambiguous. It creates a problem because does it

mean you have passed anything or you failed everything? Something like that. Again for

consistency, it was all put together under 23--


Jeremiah Nyegenye: --1. So that everybody has some credible qualification and that runs

through all the levels. Thank you.

Com. Mutakha Kangu: Maranga, there is something that you really want to say. Can you say

it?


Com. Charles Maranga: Yeah, Chair, you know there are a number of offices which we have

created in this Constitution which have no time limit. One of it is the Prime Minister, the other

one is Members of Parliament who have no time limit. I do not see why you should limit

somebody at the locational level. So, if Nyegenye wants to convince us that there are time limits

for every executive person who has been appointed through this Constitution, it is not true. The

Prime Minister has unlimited time period, the Member of Parliament - even though he is not

directly under executive - has no limited time period. So, the only persons we have limited for

two terms are Constitutional - you know - Commissions and others, plus the President.

Otherwise the other executives - we have left them open ended.

Com. Wanjiku Kabira: No. I think on the contrary, the regional premier and the district

premier are all actually limited to two terms. For the administrator it was actually consistent

with the heads of the executive--

Com. Mutakha Kangu: The devolved levels.

Com. Wanjiku Kabira: --authority in government.

Com. Mutakha Kangu: Baraza. (Laughter).

Com. Nancy Baraza: Thank you, Mr. Chairman. I think at a conceptual level, Charles is

misleading us on the issue of the Prime Minister, because the Prime Minister-- There are inbuilt

mechanisms for removal of a Prime Minister. So, we cannot say that he has unlimited-- At a

conceptual level, then we will be doing a wrong thing.

Com. Mutakha Kangu: Dr. Nunow. Yeah, you could vote him out, on no confidence.

Com. Abdirizak Nunow: Mr. Chairman, I see the concerns, that this was passed and of course

that is what we are going to point out, that is what we are verifying. But we are also and we have

been doing this throughout, pointing out, well that what was passed is either faulty or unclear or

whatever and we need to be consistent with that. What I suggest is, as I read 252 (2) on legibility

on education, I think it does not lose any value leaving it out. This is because four years of


secondary education is as ambiguous as it can be but we need to note that that provision was

there, it was in this formulation, it has been left out. In the other, where the term of office is

open ended, I think it is going to be a real contradiction to democracy at the grassroot level, it is

going to create a dictatorship. If a locational administrator was to have unlimited power, that is

the best recipient for creation of a dictator because that is where you can manipulate the minds of

the rural folk and mess them up and keep them under your custody for generation. I think more

than anyone else (laughter) the Conference should have seen this – you know - as much more

important than a district governor.


Com. Abdirizak Nunow: Because the district governor is removed from the people. But this is

the person living with the people on daily basis, at the locational level. So we need to note that

this – what do you call it - control on term of office is inconsistent with other similar office

holders that we have created at the regional levels, but this is what the Conference passed. Solve

that and see the new formulation. The new formulation for me adds value. And it is critical that

what it has done is try to be consistent. It captured an oversight which was passed before but at

least in good time to bring it into the Draft of 23rd.


Com. Kavetsa Adagala: Just on that, the only other notation we could make, that this five

years-- This is now in the notes, notes to rewrite--


Com. Kavetsa Adagala: --Draft. Probably what it should have is that is what it is. I do not

know if Maranga was talking about-- In the Draft of the 26 th, it should be one term of five years,

if that is what it meant and it seems like it was something like that. One term of five years and

the turn over in my view, should be that – you know – so that people come up, leadership comes

up. But if it is the other one-- In other words, there are two formulations which can emerge and

we need to put it in the notation. What Bomas passed is five years so we should note it might--


Well, we cannot second guess them but if it read “one term of five years” then it would make

sense.

Com. Mutakha Kangu: Now, Secretariat you have captured--

Com. Kavetsa Adagala: Ahh--


Com. Kavetsa Adagala: The only other thing I wanted to say, it is true we are verifying the

Draft, but you know, the discussions we are having, is so that we can understand and we can see

the contradictions. Otherwise, we will just say, Bomas passed this, this, that and how are you

going to say the better formulation, if we do not discuss it and if we do not convince each other?

Because, in the end, we are the ones who are going to be answering these questions. So, if

everybody keeps saying - we are just here to verify, yeah, I do not know, he went-- Otherwise we

would have finished this exercise in two days or put it in computer, it is easier.

Com. Mutakha Kangu: So, Secretariat, have you noted that? I think Dr. Nunow and Kavetsa

have captured what should be our summary, that the Conference passed five years, which seems

to leave a loophole for someone remaining in office forever, and at the drafting level, additions

were made, the intention was this. So, that can just be pointed out and if people want to stick

with what Bomas passed, they may be able to do that. Now, at this point, where are we moving

next, Wanjiku?

Com. Wanjiku Kabira: We are moving on to the next one, which is 22--


Com. Wanjiku Kabira: We can finish. Yeah, I think we can.

Com. Mutakha Kangu: Okay. of 271

Last printed 9/24/2004 02:39:00 PM

Com. Wanjiku Kabira: Yeah, we can, if the Chair is giving us lunch. 226 of 23rd, corresponds

to 249, let us see whether we can find it. 249(2), sorry, I am sorry, I think I have--

Com. Mutakha Kangu: Terms of office, eh?

Com. Wanjiku Kabira: --it must be somewhere. It is another 249.

Com. Charles Maranga: That one corresponds to 224.

Com. Mutakha Kangu: I think the terms of office had been spread all over. This is a general

clause.

Com. Wanjiku Kabira: I think I have a problem with that one.


Com. Wanjiku Kabira: Somebody help.

Com. Mutakha Kangu: Nyegenye, can you lay your hands on something?

Jeremiah Nyegenye: Mr. Chairman, this is a provision that tried to assemble all the provisions

elsewhere on--

Com. Mutakha Kangu: In terms of office?

Jeremiah Nyegenye: Yes. So that it is neatly put together instead of repeating it everywhere

else.

Com. Mutakha Kangu: In many clauses?



Com. Mutakha Kangu: Can you identify some of the clauses where we were consolidating

from?


Com. Mutakha Kangu: Like the one we have passed.


Com. Mutakha Kangu: So, can we note it as an addition that seeks to consolidate from various

Articles and it adds value?

Com. Charles Maranga: Yeah.

Com. Mutakha Kangu: And then confirm and verify? Wanjiku.

Com. Wanjiku Kabira: Yeah, I think it is okay.


Com. Wanjiku Kabira: So, we go to 227.

Com. Charles Maranga: We have already confirmed.

Com. Wanjiku Kabira: 227?



Com. Mutakha Kangu: No, that one was on 226.


Commissioners: Oh, okay.

Com. Mutakha Kangu: We were dealing with 226 now, we go to 227.


A Commissioners: We verified.

Com. Wanjiku Kabira: I know we verified that. it corresponds to 244(5) and (5)(b) and (c).

Com. Mutakha Kangu: Now, 228.

Com. Wanjiku Kabira: Okay, now, 228, Public access, see whether it corresponds with 261 of

the other Draft--

Com. Mutakha Kangu: Just a moment Wanjiku, Lethome.

Com. Ibrahim Lethome: I have been pleading that you should carry all of us on board.

Com. Mutakha Kangu: Yes, yes.

Com. Ibrahim Lethome: Yeah. Let us go back again. 226, I accept the explanation given by

Nyegenye--


Com. Ibrahim Lethome: --that it has brought together the terms of service of all the different

office bearers, we were just about to point at some of them, we pointed out a few of them--

Com. Mutakha Kangu: Yes, please.

Com. Ibrahim Lethome: --and gave out a few examples.



Com. Ibrahim Lethome: But I want to know what to expect on the template, the summary, that

we are making. When it comes now to the observations, what we are observing, and what are we

recommending on that? I think we are moving too fast for that. Can we please get it clearly?

Com. Mutakha Kangu: By the way, we are noting--

Com. Ibrahim Lethome: Yes.

Com. Mutakha Kangu: --that 226 is a new clause--

Com. Ibrahim Lethome: Okay.

Com. Mutakha Kangu: --but which has consolidated pieces from various other Articles--


Com. Mutakha Kangu: --and we think it is better put that way.

Com. Ibrahim Lethome: Thank you.

Com. Mutakha Kangu: So, it is verified and confirmed.

Com. Ibrahim Lethome: Yeah.

Com. Wanjiku Kabira: But if I may ask for clarification on this one, an elective office, is that

an MP also?

(Inaudible response from the floor).

Com. Mutakha Kangu: No, this is under Devolution.



Com. Wanjiku Kabira: Because I thought where we had limited the terms, it was the regional

premier, the governor and the administrator. So, if we say all “elective posts”--

Com. Mutakha Kangu: I think the rendition then should have been, subject to any other

specific clauses in this Chapter.

A Commissioner: It is there.

Com. Mutakha Kangu: Yeah, it is there. “Subject to specific--

Com. Wanjiku Kabira: Okay, fine.


Com. Mutakha Kangu: You are okay now?

Com. Wanjiku Kabira: Which also takes care--

Com. Abida Ali-Aroni: We are happy. We are doing very well.

Com. Mutakha Kangu: Let us move together, Nyegenye has said before we move to 227,

Gicheru.

Ndoria Gicheru: A minor point. (b) of 226, second line, instead of coma after the word

“qualified”, could you put the word “for”.


Ndoria Gicheru: It is missing.


Com. Mutakha Kangu: “otherwise qualified for reappointment”.

Ndoria Gicheru: Yeah.


Ndoria Gicheru: Yeah, you can have both but--

Com. Charles Maranga: Or you can have--

Com. Mutakha Kangu: Let us have annotation on that, as an editorial note. Isn’t it?

Com. Kavetsa Adagala: No, the coma should be there.


Com. Mutakha Kangu: We keep the coma but add the word “for”.


Com. Charles Maranga: After the coma.

Com. Mutakha Kangu: Okay, fine. Wanjiku move to 227.

Com. Wanjiku Kabira: 227, we said we have verified. Is that okay?


Com. Wanjiku Kabira: Okay, 228.



Com. Wanjiku Kabira: Now, 228, I was asking you to go to 261 of the 26 th Draft and it is the

same, okay? So, word for word. So are we moving--

Com. Mutakha Kangu: Are we okay?

Commissioners: Yes.

Com. Wanjiku Kabira: So, we move to 229. Now, 229 is similar to--





Com. Ibrahim Lethome: Except the marginal and the headings.

Com. Wanjiku Kabira: Yes, okay? So, as we move on-- Sorry, before we move on to 230, can

we find out why we lost 262? Balance of gender and diversity.

Com. Mutakha Kangu: Nyegenye and Gicheru.


Com. Wanjiku Kabira: No, no, just wait because it was also in our corrigendum.

Com. Ibrahim Lethome: It has been made more elegant.

Com. Wanjiku Kabira: Somewhere else? (Laughter).

Com. Mutakha Kangu: Let us give Nyegenye time.


Jeremiah Nyegenye: This, I think, appears in Article 12.

Com. Mutakha Kangu: 12?

Jeremiah Nyegenye: Yes, Article 12.

Com. Wanjiku Kabira: Affirmative action provision?

Jeremiah Nyegenye: Article 12 of the 23rd Draft.

Com. Wanjiku Kabira: Yes, that is the old one.

Com. Mutakha Kangu: Article 12?

Com. Wanjiku Kabira: Article 12 must be on affirmative action.

Com. Mutakha Kangu: That is National values.

Com. Abida Ali-Aroni: Yes.

Jeremiah Nyegenye: Yes it is.

Com. Mutakha Kangu: National Values, sub article (2) what?

Jeremiah Nyegenye: 2 (j).

Com. Mutakha Kangu: 2 (j). “Ensure full participation of women, persons…”--

Jeremiah Nyegenye: “(j). implement the principle that not more that two-thirds of members of

elective or appointed bodies shall be of the same gender” and we made that “sex”. So that is

exactly what 262(1) is saying.


Com. Wanjiku Kabira: Can I explain on 262--

Com. Mutakha Kangu: Wanjiku, yes.

Com. Wanjiku Kabira: --in terms of gender and diversity. The reason why this provision was

put here by the Committee was because once a decision was made that regional representation

will have four people from each region, sorry, was it the Senate?


Com. Wanjiku Kabira: Yeah. That they could not actually implement the one-third in the

same way that we have done it at the district level and at the locational level because participants

in the Committee could not decide which region would give the women and were not willing to

give fifty percent. That was the argument. So, this provision was put in there to remind them,

in terms of the representation, under the devolved governments that the principle must be

followed. And they were not willing to say two men, two women at the regional level, and

therefore, they opted to have this provision instead.



Com. Abida Ali-Aroni: Chair, I do not think we should debate this issue. Wanjiku is talking

from an informed position. She can give us an example of what is happening in Somalia, when

you have such general terms. This is an Article that was passed by the Conference. Let us not

debate it. Let us note and recommend that it be reinstated, so that, it can be dealt with at the next

level.

Com. Mutakha Kangu: Dr. Nunow.

Com. Abdirizak Nunow: Mr. Chairman, I will like to second that because while 262(1), may

be reflected in 12(j), it does not necessarily carry the same weight, because the issue is, whereas of 271

Last printed 9/24/2004 02:39:00 PM

here it mentions clearly under this Chapter, there it is general and spread all over the document.

That notwithstanding, 262(2) and more particularly (3), that is supposed to protect minorities

within districts, it is completely lost out. So, I second that this provision Article 262 be

reinstated.


Com. Kavetsa Adagala: I am sure you can appreciate what I have been saying, that you cannot

just have a principle somewhere and then you do not tie it to anything else and then say it is a

cross cutting issue. Because this is essentially what is being done, that the gender one, let alone

that the second one has been left out, the region one- But it is important that we have a principle

in the goals or there is a goal, a principle, a value, but it must be reflected where it should be,

otherwise, it will just sit there and it will be a point of debate. You know, that is the problem. It

is that it will be a point of debate and maybe it will be a point of debate for another twenty years,

before it is now re-done. We have to be careful that things do not become controversial soon

after the implementation of the Constitution.


Com. Charles Maranga: Chair, I think this particular Article 262, maybe I want to draw the

attention of the members, that the provisions of that particular Article are in-built in various

Articles of this Constitution. For example, 21 (1)(b) and (c), Election of district councillors. If

you go down to another Article 220, the same. That, “the number of members appointed under

clause 1(b) shall not exceed either-one-third of the…” --and so on. So, I think as far as I am

concerned if you say 219(b), for example--

Com. Abdirizak Nunow: Point of Order, Mr. Chairman.

Com. Charles Maranga: --but I want to agree, I am convinced that--

Com. Mutakha Kangu: Point of Order from Dr. Nunow.


Com. Wanjiku Kabira: (Laughter).

Com. Abdirizak Nunow: Mr. Chairman, is it in order for Dr. Maranga to mislead the

Commission by referring us to generalities and the wrong provision?

Com. Mutakha Kangu: He is out of order and you must have noticed when he was reading, he

noticed that he was reading a wrong thing and he quickly wanted to jump over it. We should

ignore that. Let us proceed.

(Laughter).

Com. Mutakha Kangu: So, let us make the note Secretariat, you have heard the views of the

members, let us make that note and then move to the next. The note is that--

Com. Wanjiku Kabira: We reinstate that provision.

Com. Mutakha Kangu: Gicheru, you want to say something? Okay, fine.

Com. Wanjiku Kabira: By the way, this also covers, like Nunow said, when you have district,

even locational council, we have to think about the diversities--

Com. Mutakha Kangu: Majorities, yeah.

Com. Wanjiku Kabira: --within the location. It is not covered anywhere and even minority

communities at the district level, they are not covered. So, I think I am just emphasizing that it is

important. Now, 263-- So, this must be a transitional clause, maybe Nyegenye can tell us where

he put this one.




Com. Mutakha Kangu: It is also missing?


Com. Mutakha Kangu: Anything on that Nyegenye? Now that during transition--

Com. Wanjiku Kabira: The idea for this provision again, sorry, it is not a transitional clause.

The idea for this provision was to ensure that there is a government all the time.


Com. Wanjiku Kabira: That there is no time when there is--

Com. Mutakha Kangu: A vacuum.

Com. Wanjiku Kabira: --a vacuum. So, we do not know why it was left out.

Com. Charles Maranga: We note and move on.

Com. Mutakha Kangu: It is like the executive currently. The cabinet remains in office even

during elections and I think at the national level, we pointed out that elections will be held while

Parliament is still sitting and it is when the new Parliament is being sworn in, that the old one

vacates.


Com. Mutakha Kangu: So, that is what we are trying to capture. Any explanation on that?

Ngoja kidogo. Okay, Maranga.

Com. Wanjiku Kabira: So, we reinstate it?

Com. Charles Maranga: Yeah, we reinstate and we proceed. That is a very important clause.

Let it be reinstated. I think that is okay.



(Consultations at the “high’ table).

Com. Kavetsa Adagala: Okay, it is what the Conference passed but I do not see how a clause

like this which presents an even playing ground was put here because I remember there was a

time when we even debated in 2002 about having at least one-third remain in and all that. So

that there is an even playing ground because this is really stacking it, even more than now.

Because if you have the assembly or council in office, that is just stacking up against the people

who are coming in. Not always but it does. The incumbents have advantage. But it is

confirmed.


Ndoria Gicheru: Yeah. To follow the same principle, as is followed with regard to Parliament

at the national level, the idea was to make sure that there was no vacuum and the provision

regarding the national Parliament is that a date is given, a period is given within which elections

must be held. So, it could be on the line that before the term expires, maybe elections shall be

held at a particular time, just to make sure that a particular council, for instance, does not go

beyond the time prescribed. Just on the lines suggested, or recommended at the national level

may be within 28 days before the expiry and then elections shall be held. In that case, it will

solve the problem of these two periods overlapping. But the principle is to make sure that there

is no vacuum in the--



Com. Mutakha Kangu: Is that captured anywhere else?

Ndoria Gicheru: Mmh?


Com. Mutakha Kangu: Is it captured anywhere else.

Ndoria Gicheru: No.

Com. Mutakha Kangu: No!

Ndoria Gicheru: I was looking for any other place, I could not get it but I knew it was an

important point.

Com. Mutakha Kangu: Fine. Lethome.

Com. Ibrahim Lethome: You know, I was hoping that Abida will take us to the Seventh

Schedule, the Transitional and Consequential Provisions, because I thought maybe this one

would be covered under the transitional mechanisms.

Com. Mutakha Kangu: It is not transition?

Com. Wanjiku Kabira: It is not transition.

Com. Mutakha Kangu: You know, Lethome, the Chapter on Transition is about exiting the

current Constitution and bringing in the new one.

Com. Ibrahim Lethome: We are also talking about elections, during elections also.

Com. Mutakha Kangu: It does, but the overall intention of the Chapter on Transition is to

create a mechanism of getting the old Constitution die, and the new one get born. But this one is

about during election time--

Com. Ibrahim Lethome: During election time?



Com. Ibrahim Lethome: And I am telling you that if you look at the Seventh Schedule it is

also taken care of.

Com. Mutakha Kangu: Seventh Schedule, where, page?

Com. Ibrahim Lethome: Page 161 of the document of the 23rd, go to item number 6 on Local

Authorities. I am reading sub-article (3) of that item, “All councilors of the local authorities

specified under sub section (1) shall continue to be councilors after the effective date until

elections are called in accordance with the legislation referred to in sub-section (1)”.

Com. Mutakha Kangu: No, that one is about the councils as constituted today. How do we

transit from them, to the devolved councils we want to have? But this clause here is saying even

after we have done that, assuming we are going to the elections of 2007 with councils under this.

Do we dissolve them and hold elections when there is nothing in office or do they remain in

office until we finish elections and a new council takes over?

Com. Ibrahim Lethome: I stand corrected.

Com. Mutakha Kangu: That is the difference between the two. Maranga.


Com. Charles Maranga: Chair, this provision is important and I think what we need to do is

we restore it and we move on.

Com. Mutakha Kangu: So, let me make a ruling. Can I make a ruling? The comments,

Kavetsa, I am sure you wanted to emphasize or you had a different line, I know.




Com. Mutakha Kangu: Please, say it quickly.

Com. Kavetsa Adagala: You know in the Committee, I do not know how you did not take care

of-- You took care of the time and the vacuum and all that, but the principle of--

Com. Mutakha Kangu: Incumbency, misusing the--


Com. Mutakha Kangu: --we seemed to have missed that.

Com. Kavetsa Adagala: --and this is precisely what we are in, you know, the incumbent sits in,

and I thought probably, well, I should not be saying it now, I probably should have come-- but

we were also busy, but the earlier principle that we had discussed of one-third of people

remaining in, so that it is staggered and which works probably for the kind of system we are

trying to do. In the U.S, where a third of this stand and remain there, I think they go to run and

then others-- So that you have elections every two years but for different people.

Com. Mutakha Kangu: I think, it is a major principle which we missed out, we did not discuss

the issue of staggering elections. So, maybe what we do is, let us go by what was passed. We

make a note and maybe we could also add the note of what Gicheru was saying that, maybe that

clause, if it is being reinstated, it may need to be made clearer by fixing dates of elections. But I

am not so sure that we want to fix dates of elections at those lower levels in the Constitution.

But let us make that notation and we move to the next.

Com. Wanjiku Kabira: Okay, 229, sorry, we dealt with that?


Com. Wanjiku Kabira: So, now, 230 corresponds to 272, by the way, 265 of the previous

Draft, 26th--

A Commissioner: Ah?


Com. Wanjiku Kabira: --sorry, it is the one which is not here. So, I just want to account for it.



Com. Mutakha Kangu: In the 26th document?


Com. Charles Maranga: Where is this?

Com. Wanjiku Kabira: Yeah. The one of 26th. 265, the removal, I think we have been dealing

with.


Com. Wanjiku Kabira: 232. The whole of it is covered by 231 and 232. We had been very

specific, I think--

Com. Mutakha Kangu: They decided to--

Com. Wanjiku Kabira: --they decided to take this to legislation.


Com. Wanjiku Kabira: No, in broad terms.


Com. Wanjiku Kabira: Yeah, that is what I am saying. They had gone to the details of the law

(Laughter). I do not know whether Gicheru wants to explain.


Com. Mutakha Kangu: Can we have something from you members? Gicheru and Nyegenye.

On 265 of the document of 26th.



Com. Wanjiku Kabira: Sorry, what I said is that, that Article is out and we were saying that if

you look at sub article (2), (3), (4) and (5) and so on. We thought maybe they removed because--

Com. Charles Maranga: Point of Order!

Com. Wanjiku Kabira: You ask me to explain then you--

Com. Mutakha Kangu: Maranga, let us move on. Okay fine.

Com. Charles Maranga: Can the two chairs guide this meeting? Whether it is the removal of

that provision or retaining it. Is it going to add value or no value? I think that is the guidance we

need.

Com. Mutakha Kangu: That is what Wanjiku was explaining, that certain aspects of it are

captured in 231 and 232 but even regardless of whether we are happy or not, we were asking the

Drafters to render some explanation. They may also be aware of other places where some

aspects may be located. So, Nyegenye, you have the floor.

Jeremiah Nyegenye: Mr. Chairman, don’t you want me to sit, to-- Professor Kabira to explain

what she was explaining first?

Com. Wanjiku Kabira: (Laughter). No, I was explaining that, we assumed that a lot of the

details that are on page 161, it was assumed it would be taken to legislation. So, that is why we

did not follow it up.



Com. Mutakha Kangu: Just let us hear them first.

Ndoria Gicheru: If I heard the point correctly, then we could note that 265(2) and (3) are

subsumed in 230(1) (d).

Com. Mutakha Kangu: Eh -heh. Anything else?

Ndoria Gicheru: And also 232(2).

(Inaudible comment on the floor).

Com. Mutakha Kangu: Eh- heh, Lethome, you had something?

Com. Ibrahim Lethome: Yeah, I am sorry I will be taking you back again.

Com. Mutakha Kangu: No, there is no harm if we have to move together.

Com. Ibrahim Lethome: Let us go back to Article 263, Government during transition.

Com. Charles Maranga: Ngai.

Com. Ibrahim Lethome: Maranga, why are you saying Ngai?

(Laughter).

Com. Ibrahim Lethome: You know, if I was Nyegenye or Gicheru, maybe the explanation I

would have given for why that Article has been deleted, in the Draft of the 23 rd, I would say that,

it is a matter that has been covered or expected to be covered under legislation. Because if you

look at the Articles that we are dealing with now, Article 230, Provisions to be made by an Act

of Parliament. I think that issue is also covered there, if you look at some of the sub articles


there. For example, look at sub article (1)(c), where we are talking about “conditions for the

transfer and recall of powers delegated”. Don’t you think maybe if the language is a little bit

modified, the provisions of sub article or Article 263 are covered in that Article? You know as

you have been talking, I have been trying to think and--

Commissioner Kavetsa Adagala: Yeah, (1)(c) of what?

Com. Ibrahim Lethome: (1)(c) of 230, that is on page 96.

Com. Kavetsa Adagala: Okay.

Com. Ibrahim Lethome: Yeah, that is where we are right now.



Com. Mutakha Kangu: We are trying to strain our imagination to get a linkage. Lethome.

(Laughter).

Com. Ibrahim Lethome: Do not strain. The Article has been left out in the Draft of the 23rd.


Com. Ibrahim Lethome: The explanation I am trying to give as to why it has been left out is

because it is well taken care, of maybe not elegantly or sufficiently, by Article 230 on matters

that will be dealt with through an Act of Parliament. That is what I am trying to say.

Com. Mutakha Kangu: Okay, fine. One comment from Maranga and then we see whether to

re-open it or we just move on as we had ruled.

Com. Charles Maranga: Chair, Parliament can be mischievous and decide not to legislate on

this matter. That is why I think people felt that for us to protect the devolved governments, this


kind of transition should always be there so that Parliament has no option. They know that those

governments exist but if you leave it to legislation, they can decide to legislate them out and they

remain silent on that issue. So, I think it is important that this Article remains and I want to

convince my brother, Lethome, that for those who play the high stakes in terms of politics and so

on, this is an important Article.

Com. Mutakha Kangu: I think let us leave it at the level we had ruled. Maybe we can think

about it a little more later but for the moment, let us leave it at where we were and then continue

with the one we had reached, the one 265. Gicheru had pointed out some aspects. Was that all

or you still have other things to point out? There is nothing else?

Com. Wanjiku Kabira: We still need an explanation for (3), (4), (5), (6) and (7).

Com. Mutakha Kangu: Any explanation for (3), (4), (5), (6) and (7) or for (4), (5), (6) and (7)?

I think (3) was mentioned to have been captured under 230. You cannot lay your hands and eyes

on anything? So, can we note that or Nyegenye you want to say something?

Jeremiah Nyegenye: Mr. Chairman, as I read it, (2), (3), (4), (5), (6) represent a process. The

explanation we had given for that was that, it is a process of removal that is covered under 230

(1) (d) of the Draft of the 23rd but in summary as just method of removal rather than specifics.

Com. Mutakha Kangu: So that those details on process could go into that legislation.

Jeremiah Nyegenye: To legislation, that was the thinking.

Com. Mutakha Kangu: Are we happy with that? Okay, let us note that. The good thing is that

this debate, if we will be a serious country after this, should form a basis of informing the

legislators--



Com. Mutakha Kangu: No, I am not. We are still moving on. Wanjiku, can you move us to

the next Article?

Com. Wanjiku Kabira: Yes. Article 230 of 23rd. Now let us look at-- Sorry, it corresponds to

different provisions. So, 230 sub-article (1) (a) is similar to 272 (1) (e). 230, sub-article (1) (a),

see whether it compares to 272 (1).


Com. Wanjiku Kabira: (e) of the 25--


Com. Wanjiku Kabira: It is 269?

Com. Mutakha Kangu: (b).

Com. Wanjiku Kabira: No. (b) should-- No. What have I put 272 (1) (e) instead of (a)?

Com. Mutakha Kangu: (1) (a) is 272 (1) (e).

Com. Wanjiku Kabira: Is 272 (1) (e). Have you found that?

(Inaudible response from Commissioners).

Okay. 230 of 23rd sub-article (1) (a) is similar to 272 (1) (e). Okay. Have you found it? Now,

(b) 230 1 (b) is similar to 269 (1). No, no, sorry. 269-- yeah?

Com. Mutakha Kangu: (3), (3).


Com. Wanjiku Kabira: 269 (3), yeah? No, no. “Urban areas within a district.” Okay. Let us

leave those ones for Nairobi for the time being. Let us go to (c) and see whether it corresponds

to 272 1 (b) and (c).

Com. Ibrahim Lethome: The one you have just said we leave out.

Com. Wanjiku Kabira: I said let us suspend Nairobi (b).


Com. Mutakha Kangu: Okay, let Lethome--

Com. Ibrahim Lethome: Go to 269 (2) (d), it is there but it is more detailed under (d) than it is

in--

Com. Mutakha Kangu: (2) (d) and (3).

Com. Ibrahim Lethome: Yes, it is there. 269 (2) (d) and (3). Nairobi is not mentioned there

but we know it is the national capital, it is there and other urban centers.

Com. Mutakha Kangu: (3) deals with the urban centers.

Com. Ibrahim Lethome: Yeah, so it is there.

Com. Wanjiku Kabira: Okay. So, we are happy. Now we go to (c) kind of. So, (c) is covered

by (b) and (c). Okay. (d) of 272 (1) (b) which says, that “national legislation may provide that

the power to make laws on a matter is with one government and the power to implement it with

another government or governments” and we combine that with (c), “shall provide for delegation

of powers of one level of government to another and shall specify the conditions for the transfer

and recall of the powers delegated.” So, we are saying the whole of that (c), the “delegation of

powers of one level of government to another…” including the delegation from the government

to regional and district governments of legislative powers, with respect to matters specified in the


following paragraph of this Article as a subject matter of an Act of Parliament, and the condition

for the transfer and recall of the powers delegated. If you combine (b) and (c) is what we have as

(c). Is it okay?

Commissioners: Yes.

Com. Wanjiku Kabira: Now, we go to (d) and check 272 (1) (j), “generally may make

provision for carrying out or giving effect to provisions of this Chapter.” We are saying, “the

manner of election or appointment of persons to and their removal from office is (?)

including the qualifications of voters and candidates.”

Com. Mutakha Kangu: And 265, which we have been looking at.

Com. Wanjiku Kabira: Yeah, the one we have been looking at.

Com. Mutakha Kangu: Then (e).

Com. Wanjiku Kabira: Okay. Now, (e), “the procedures of assemblies, councils, executive

committees including the chairing and frequencies”, that one is a reflection of 257, 258 and 259

again of the other Draft.

Com. Mutakha Kangu: And then (f).

Com. Kavetsa Adagala: You know you have to say-- (Inaudible).

Com. Charles Maranga: We are tired.

Com. Wanjiku Kabira: No. 26th , we are only dealing with two drafts.

Com. Kavetsa Adagala: But you know you have to say (Inaudible).

Com. Wanjiku Kabira: Again, okay.


Com. Charles Maranga: Chair, let us adjourn.

Com. Wanjiku Kabira: No, not yet.

Com. Mutakha Kangu: I have overruled Maranga. Can we continue?

Com. Wanjiku Kabira: Maranga, you are overruled.

Com. Mohammed Swazuri: You can overrule Maranga but we are hungry and when we are

hungry we are going to get angry.

Com. Wanjiku Kabira: You are going to get angry when you are hungry. Okay. Do you want

us to look at those provisions?

Com. Mutakha Kangu: Let us finish this Article then.

Com. Wanjiku Kabira: We finish this? Okay. We are not happy with (e)?

Com. Abdirizak Nunow: Mr. Chairman, (?)the door, why does he not come in

so that people do not have to go out. Let the lunch come in and we eat as we talk.

Com. Mutakha Kangu: Ask them but my question is this. We had thought that we could have

finished and then you take your lunch and we break and then we can continue tomorrow.

Com. Kavetsa Adagala: Let me tell you, Kangu, continuing can take another one and a half

hour--

Com. Mutakha Kangu: Which is good.

Com. Kavetsa Adagala: --so let us eat and work.



Com. Wanjiku Kabira: Can we begin by completing the 230? There are only one or two

provisions.

Com. Mutakha Kangu: And then you can have the lunch.

Com. Wanjiku Kabira: We can take the lunch and continue working. I think that is what

Kavetsa is saying. Now, this is from the people, from Kavetsa.

Com. Kavetsa Adagala: Endelea, endelea.


Com. Mutakha Kangu: Let us finish that Article before you take your lunch.

Com. Wanjiku Kabira: Okay. Let me do this. I go back to 230 sub-article (1) (e), “the

procedure of assemblies councils and executive committees…” and so on. If you look at 257 of

26th. Then 258 is covered by that. We are trying to look for the mothers of these provisions and

then 259 on decisions. So, we are saying that all those ones are put together to form (1) (e). Is

that okay? We go to the next page. We have a problem with (f), “the suspension of assemblies,

councils and executive committees”. We had a problem with this one because we had-- Where

is ours for the suspension? Okay. Now, 270 of the old Draft, we had provided for suspension of

regional district governments and we thought that to avoid creating a law that will suspend either

the district council or the regional assembly and is not controlled by the Constitution, may be a

dangerous precedent and if you look at 271 (2), (3) and (4), we had in detail described how you

suspend the district governments and so on. So we think the district governments-- And we

think we should retain it because (f) is not capturing what we had provided for in Article 270

unless we can be given a better explanation.

Com. Mutakha Kangu: Are we together on that? Are you in support?


Com. Mohammed Swazuri: We are together, Mr. Chairman, and my own opinion from what

Wanjiku is saying is that (f) could be dangerous.


Com. Mohammed Swazuri: Okay. Because the National Assembly can just sit and in the first

sitting pass a law and in a minute they are not there so I think we want to first of all say that (f) is

new. We did not have it and the spirit of what is in 270 has been lost and we need it back.


Com. Kavetsa Adagala: (f) will take us right back. Well, in 63’s some things existed but the

agony of the history we went through in the 60s and 70s and I do not think we want to reinstate

that. It may work very well somewhere else but we have to make sure that that history does not

repeat itself and Nyegenye would do that.

Com. Mutakha Kangu: Nyegenye, you want to say something?

Jeremiah Nyegenye: Mr. Chairman, while there may be a lot of merit and probably the way to

go is to restore it as you have said, I just want to allay the fear that there is a danger-- I do not

think that there is a danger of any grave violence coming from the omission of it because, any

such legislation would probably be even more favourable than we have here because it would

have to have the approval of the Senate itself for it to pass. So, there would not be that danger.

Com. Mutakha Kangu: Yes, Nunow.

Com. Abdirizak Nunow: Mr. Chairman, I think the spirit of Article 270 has really been

watered down in my opinion because what this provision does is to lay down the machinery and

the procedure for suspending a council. And it talks about the involvement of the Senate

authorizing it even after suspension has been sanctioned. But that has also to be preceded by the

formation of independence commission to inquire into the conduct of a particular council. That

creates a lot of rigidity to safe guard and protect the council that are going to have a lot of


teething problems and if they do not have constitutional protection, they will not see the light of

day. So, Article 270 ought to be reinstated.

Com. Mutakha Kangu: Kavetsa, you want to clarify again?

Com. Kavetsa Adagala: I want some clarification. It says, “regional district government may

be suspended” by whom?


Com. Kavetsa Adagala: I am talking about 270, “suspension of regional or district

government”, 270 (1), “a regional or district government may be suspended.” It is not making

any reference to Parliament. In the one of the 23rd, there is Parliament like Nyegenye said. What

did you have in mind when you were discussing it as the Committee?

Com. Mutakha Kangu: The point is that you may reach a point when a particular devolved

government may not be performing, it may have become very outrageous in its activities, serious

allegations have been made against them and we are saying, whereas there may be need to

suspend such a government so that the people get services, we also do not want to take such a

drastic measure as to deny the people their right to elect their own government. You have the

experience of our country where a local authority would be dissolved and a commission put in

place.

Com. Kavetsa Adagala: That we know very well.

Com. Mutakha Kangu: Now, if you read through the whole Article you see a long procedure

there that will tell you who will do what at what point.

Com. Wanjiku Kabira: I think her question is not answered in terms of who initiates the

procedures for this suspension so we can note that.


Com. Mutakha Kangu: You see sub-article (2) says, “a regional or district government shall

not be suspended under clause (1) (b) unless an independent commission of inquiry has

investigated the allegations against it, the President is satisfied that the allegations are justified

and the Senate has authorized the suspension.” Of course the question is, who initiates the idea

of the Commission being established? Yes, Maranga.

Com. Charles Maranga: Chair, if you read this Article, whoever who is carrying out the

functions of an emergency which I think is Parliament and the President finally declares the state

of emergency in consultation with Parliament, then I think this thing can easily be initiated by

Parliament but it is not expressly provided and we need to note that. But I think this entire

Article is important to be retained.


Com. Ibrahim Lethome: I think the most we can do maybe to respond to the issue that has

been raised by Commissioner Kavetsa, is just to note but you are talking about an Act of

Parliament here. So, it is expected that those details should go into the Act of Parliament

although if you look at 230 (c), we are talking about those powers. You look at (1) (d), we are

talking about removal from office, so I think it is all there. It will be in the Act of Parliament, it

will be specified by the Act of Parliament who initiates that procedure of suspending a council.

Com. Mutakha Kangu: You know members are saying we reinstate 270. 270 does not make

any reference to an Act of Parliament. I think the best way we should go--

Commissioners: It does.

Com. Mutakha Kangu: Fine. So, let us say that we reinstate 270, we note that it was left out

and captured in (f) but that (f) does not capture everything, and then we also add that there may

be need to improve the 270 by pointing out who initiates the process. So (f) is an addition.

Lethome you were still on the floor, you wanted to say something more?

Com. Ibrahim Lethome: No.



Com. Ibrahim Lethome: I was just wondering.

Com. Wanjiku Kabira: Okay. I am assuming that the column that was proposed and added by

Alice will actually explain what we have been discussing in relation to this particular provision.

The fears that we have been expressing. Now, sub-article (2) is new sub-article (2) of Article

230, the document of 23rd. That one is new and it is just saying, whatever you do in the previous

Article, make sure that you support the principles of devolution and is comprehensive in content,

so I think it is fine. (Laughter).

Com. Mutakha Kangu: No, it is not obvious. You know the tendency of our Parliament has

been that most of the times they give away their work by legislating in very short form by

saying, the Minister shall make regulations, so, they hand over most of their work to the Minister

and then they start crying the Executive has taken over everything. So, sometimes it is good to

say it should be comprehensive. Now, I think at this point it has added value so we verify and

confirm with the note we had on 270 in relation to (f), and then we say that members are

insisting they must have lunch. Yes, Chair.

Com. Abida Ali-Aroni: Kangu, if we are breaking for lunch, the best thing would be to adjourn

this meeting until tomorrow. This afternoon we do not continue with this exercise because there

are committees that strongly requested to be given the afternoon to meet. So, if we are

adjourning now, we adjourn for tomorrow. If members can hold then we conclude your--

Com. Wanjiku Kabira: We can finish because there are just a few provisions.

Com. Abida Ali-Aroni: You can take a biscuit.

Com. Mutakha Kangu: Kavetsa, quickly we dispose off this whether we proceed or we leave

at this point.

Com. Kavetsa Adagala: Is that a question?


Com. Mutakha Kangu: No. You wanted to speak or something else?

Com. Kavetsa Adagala: I wanted to go ahead.

Com. Mutakha Kangu: So, have we decided we finish are there those who hold a different

view?


Com. Mutakha Kangu: So, we proceed?

Com. Kavetsa Adagala: We are not tired of coming back to devolution because that will be our

future lives but Part IV, just give us an over view first of all. Give us an over view because it is a

whole part. Give us an idea of generally what is similar and what is not and then we go to the

particulars.

Com. Wanjiku Kabira: It is not difficult. 231, we have been discussing since morning because

it dealt with qualifications for election and appointments, which were repeated many times in the

Draft and they are covered and we have been discussing it the whole morning. 232 is the same.

We have been discussing it the whole morning referring to it. Now, let us go to the election of

the mayor 233 because this is a new provision in terms of our discussion today. 233 is similar to

240 of the 26th, the one on the election of mayor and deputy mayor of Nairobi. If you look at

240, it just says, “The mayor and deputy mayor of Nairobi shall each be elected in the manner

prescribed by Act of Parliament.” If you look at this one it says, “the manner of voting under

that Article shall be the same as at a by-election for the National Assembly” until relevant

provision is made by an Act of Parliament for the purposes of Article 215. Now what is 215?

Com. Mutakha Kangu: 215 is “election of mayor and deputy mayor of Nairobi.”

Com. Wanjiku Kabira: 215 is election of mayor and deputy mayor of Nairobi, which is the

same as 240, so it is referring to the same. So, the 240 is the same as 215 in 23 rd. But now they


are giving other information, so the manner of voting under that Article which is the one for

Nairobi shall be the same as at by-election for the National Assembly. I leave that one to

Nyegenye and Gicheru. Now, the next sub-article “the residential requirement for the purposes

of that Article is that a person has been resident in the region throughout the period of twelve

months immediately before the date of the election. I do not know whether we have this

special for Nairobi because we have the main provision under 231.

Com. Mutakha Kangu: Can we hear something from Nyegenye and Gicheru?

Jeremiah Nyegenye: Mr. Chairman, the essence of what we tried to do at 233, 234 and 235 is

to enable instant operationalisation of devolution at these levels because the analogous

provisions in the Draft of 26th would have depended for their coming to life on legislation. So, in

the interim, that would have to be covered by transition. The transition either provides for it

expressly or provides for that legislation to be made while suspending this until that legislation

has been made. So, the essence really and when you come to specific mention of 12 months, that

as I explained the last time is unless you-- Because it is to be provided in an Act of Parliament,

in the interim you have to say something otherwise all that would have to wait for legislation but

I see the Chairperson--

Com. Mutakha Kangu: Yes, Abida.

Com. Abida Ali-Aroni: Chair, I do not know whether I am out of order but I am wondering if

we are talking about instant elections, then don’t we need to take this to the Transitional Chapter

because when we have it here, it means that we will be referring to it time and again even after

the elections that we anticipate for purposes of devolution for now.

Com. Mutakha Kangu: Yes. Maranga and then we move on to Kavetsa.

Com. Charles Maranga: Chair, the Articles 233, 234, 235 are transitional provisions. 233,

234, 235, all those are transitional provisions, which really need to go under the transitional

provisions.



Com. Kavetsa Adagala: Unless there is an explanation for it, I am seconding what Maranga is

saying.

Com. Mutakha Kangu: Now, the problem we have is that if you look at 240, the intention was

not to pass a transitional clause. The intention was to provide for how elections in the capital

shall always be held for the mayor. My thinking is that therefore we need to address the clauses

for the Constitution and then deal with transition questions in the Transition Chapter. But if we

say we shift all of them to the transition the way Maranga has said, we will be losing what was in

the body in the Devolution Chapter because it was not meant for transition. Kavetsa.

Com. Kavetsa Adagala: Okay. What we need to do is have a win win situation. Transfer this

to transition because there will have to be a transition because it says until, until, until and retain

for all times. Retain what is in the Draft as the 26th for all times but what we need to do is look at

what is in the Draft of the 26th closely to make sure that it does. I have not looked at it closely.

That is the one of the election of mayor and deputy mayor 240. If it does reflect that, then it is

okay but I would just like to propose that we shift this to Transition.

Com. Mutakha Kangu: Abida.

Com. Abida Ali-Aroni: I wish to second what Kavetsa is saying but I would suggest that we

note and when we go through the Chapter on Transition, then we see where to fit them in if they

have not been captured.

Com. Mutakha Kangu: We note and pend them for reconsideration when we are dealing with

the Chapter on Transition.


Com. Mutakha Kangu: It captures 240 but the phraseology of “until” turns 240 into--

Com. Kavetsa Adagala: 240 does not have “until”.


Com. Mutakha Kangu: It does not have?

Com. Kavetsa Adagala: Yeah. And 215 does not have “until” it is for all times. 215 of 23rd

and 240 of 26th does not have “all times”. So, we just shift this. Is there any difference in

wording Professor Wanjiku?

Com. Wanjiku Kabira: No, they are the same.

Com. Kavetsa Adagala: Okay. Then we put it with Transition.

Com. Mutakha Kangu: So, are we together?


Com. Mutakha Kangu: Secretariat, you can get the summary even without my putting it.

Com. Wanjiku Kabira: That is for 233 the same with 234. Now, there is something new, 234

(b). I do not know, may be we need an explanation. Where did they get 20 percent? Yeah, we

passed the 219 (c), “such number of members from marginalized groups” so we needed to

reconfirm that (d).

(Inaudible comments from the floor).

Com. Mutakha Kangu: Nyegenye, is there anything to say about this percentage?

Jeremiah Nyegenye: Yes, I am sure there will be, Chairman, but I am little jolted again, I am

trying to piece together. It is a scheme. It is a scheme. If you take away something and take it

somewhere, I am set back and I have to try and find out.



(Laughter).

Com. Mutakha Kangu: Find out.


Com. Mutakha Kangu: Maranga, you are out of order. So, what do we do?

Com. Wanjiku Kabira: We are actually looking for 234 (1) (b). It is not a provisional clause.

Com. Kavetsa Adagala. (Inaudible).

Com. Wanjiku Kabira: No, that is not a provisional clause.


Com. Mutakha Kangu: Are we saying that we will revisit them when we are doing Transition?

Commissioners: Yes.

Com. Mutakha Kangu: Secretariat--

Com. Wanjiku Kabira: But I am saying, for it to be transitional, how did we arrive at the

figures? That is the--

Com. Charles Maranga: No, that is what we are saying, we want to know how they progressed.


Com. Mutakha Kangu: So, note that, that you will give us further information next time.



Com. Mohammed Swazuri: Mr. Chairman, which information are you looking for when you

have been told this is a new idea, which was not even passed by the Conference?

Com. Mutakha Kangu: No, no, you see, we are saying it is new, but he is saying, given a little

time he can try and see whether he can find it.

Com. Mohammed Swazuri: But you were there in Devolution, there was no time you talked

about 20%.

Com. Wanjiku Kabira: No, he did.

Com. Mutakha Kangu: No, we didn’t. Then the--

Com. Wanjiku Kabira: 235, we can just pass?


Com. Wanjiku Kabira: No, we haven’t-- In the document? Yeah, okay. We had noted--

Com. Mutakha Kangu: The things we had noted, what would we like to come back to?

Com. Wanjiku Kabira: No, I think most of them have been captured.

Com. Mutakha Kangu: I do not think we have lost anything of substance.

Com. Wanjiku Kabira: The one we have lost, which I think we have been talking about is how

do we fill vacancies.

Com. Mutakha Kangu: Is it under procedures?

Com. Wanjiku Kabira: We dealt with 237. I think we have kind of-- (Laughter). I think it is

okay.


(Inaudible comments and laughter on the floor).

Com. Wanjiku Kabira: By the way, it is not over because--

Com. Mutakha Kangu: We will be pointing out other things on Finance and others.

Com. Kavetsa Adagala: Is that so? Thank you.

Com. Wanjiku Kabira: Finance, Public Service. I think may be what we do--


Com. Wanjiku Kabira: Which one? 237, “Office and procedure of regional legislative

assemblies.”

Com. Mutakha Kangu: Procedures, those are the Speakers, Clerks and procedures under

legislation.

Com. Wanjiku Kabira: Yeah, those ones have been covered. Under 231, 232 – they are

covered there. (Laughter). In 231 and 232. But there are two or three--

Com. Mutakha Kangu: It is our method of work. (Laughter).

Com. Wanjiku Kabira: Our method of work. (Laughter).

A Commissioner: How do you (Inaudible).

Com. Wanjiku Kabira: No, no, no, we have given you two days to discuss-- For the people to--

Com. Mutakha Kangu: Do you think we proceed with this or we finish this tomorrow?

Com. Wanjiku Kabira: My question is whether we should not present Finance so that the

Devolution Articles are raised under Finance rather than now introducing the Articles to Finance.


Com. Mutakha Kangu: What we should do is that when Finance-- Because like when

Legislature was done, we raised what was for Devolution at that stage. So, we say that for the

Devolution matters that fall in Finance, we shall raise them when the Chapter on Finance is

being presented.

Com. Wanjiku Kabira: And also under Public Service.

Com. Mutakha Kangu: Public Service and so on.

Com. Wanjiku Kabira: Yeah, may be that would be better.

Com. Mutakha Kangu: So, for the moment--

Com. Wanjiku Kabira: And transitional, we will also raise it together with Transition.

A Commissioner: Those are the details. Those are administrative matters.


Com. Wanjiku Kabira: No, we were being asked whether we want to have a separate time to

raise this.

Com. Mutakha Kangu: You are saying 266? Just speak up, formalities of law making.

Nyegenye, anything? Is it under procedures, formalities of law making?

Com. Wanjiku Kabira: No, this one is left out for sure. It is not covered.

Com. Mutakha Kangu: And publication of laws.

Com. Wanjiku Kabira: And publication of laws.


Com. Mutakha Kangu: Yes, can you--

Jeremiah Nyegenye: Formalities of law making, my notes show that that should be 230 (1).

(Laughter).

Com. Mutakha Kangu: Eh-huh and--

Com. Wanjiku Kabira: Now, but how is it covered in 230 (1)?

Com. Mutakha Kangu: 230 (1), how--

Com. Wanjiku Kabira: It doesn’t look like it is covered.

Jeremiah Nyegenye: 230 (1) requires Parliament by legislation to “make comprehensive

provision for all matters necessary or convenient to give effect to the Chapter…”.

Com. Wanjiku Kabira: I think in this particular one, the concept of people’s participation in

formulation of laws is not captured.

A Commissioner: So they are missed out.

Com. Mutakha Kangu: So, make a note on that.

Com. Wanjiku Kabira: Yeah, I think so. Thank you, Swazuri.

Com. Mutakha Kangu: And then a note on publication of laws.

Jeremiah Nyegenye: Sorry, Chair. 22-- Mr. Gicheru.

Ndoria Gicheru: Sorry, I thought the question of public participation is captured in Article 228.

Com. Mutakha Kangu: 228 of?


Ndoria Gicheru: 23rd. No, no, Articles 144, 145, apply to the regional legislative assemblies and

the districts, e.t.c. and you are referred to Article 144 and 145 which deal with public

participation.

A Commissioner: Of?

Ndoria Gicheru: Of 23rd. 144, is titled Public access and participation, with regard to

Parliament. Then 145 concerns Powers, privileges, e.t.c. So, as far as participation is concerned it

is covered under 144, because it will apply here the way it applies to Parliament.

Com. Mutakha Kangu: So, that is 228. Yes, Kavetsa.

Com. Kavetsa Adagala: I will object and will always object that you cannot put something for

Parliament and it is also for Devolved Government, without saying so. If these things are

crosscutting, they must say so.

Com. Mutakha Kangu: They have said so, Kavetsa, under 228. Under 228, they are saying so.

Com. Kavetsa Adagala: That it will apply?


Com. Kavetsa Adagala: Yeah, that is okay. But the issue of--

(Laughter).

Com. Mutakha Kangu: So, are we now okay? 268, Conflicts of laws, we had passed it, I think.

We passed it way back. No, when we were at Landmark we passed it, we verified it.

Com. Wanjiku Kabira: 269. What did we do?


Com. Mutakha Kangu: Management of urban areas. We have just been dealing with it a while

ago.

Com. Wanjiku Kabira: We dealt with it.

Com. Mutakha Kangu: Where we were dealing with Nairobi and urban areas. Yes, Kavetsa?

Com. Kavetsa Adagala: What are we on now?

Com. Mutakha Kangu: He was raising 269 on urban areas and we were mentioning.

Com. Kavetsa Adagala: But before we go to 269, there is also 267. It has been covered?

Com. Mutakha Kangu: 267 on publication of laws?

Com. Kavetsa Adagala: Yeah, on page 162 of 26 th .

Com. Mutakha Kangu: Any comment from Gicheru and Nyegenye?

Jeremiah Nyegenye: 267, if you think about it, was a bit cumbersome and not to say that if it

was cumbersome, we decided to do away with it, we tried to think through how to operationalize

267 and eventually thought that it is better to let someone think about it a little more so that it

falls under the legislation that will be made. Because 267 (1), in particular, “A law or

subordinate instrument made by a regional…” bla bla bla, all that. The proliferation of that

would be so shockingly massive and if it did not take effect until it was published in the Gazette,

Gazette means the Kenya Gazette, I do not know.

Com. Mutakha Kangu: So, can we make a note that 267 was left out and the question is

whether we want it back or not and the explanation. Yes, Gicheru.


Ndoria Gicheru: I think it should also be read in conjunction with Article 146, where a registry

of enactments is provided for. It could be that this type of legislation--

Com. Mutakha Kangu: How do we define enactments?


Ndoria Gicheru: No, it is a bit general, the establishment of that registry. The only question is

what was pointed out here, the definition of enactment. Enactment means legislation or

subsidiary legislation, so it does not confine this to Parliament. So, this provision is wide enough

to cover enactments, legislation at lower levels.

Com. Mutakha Kangu: Lower levels.

Ndoria Gicheru: But of course, it is debatable.

Com. Mutakha Kangu: You want to say something, Nyegenye?

Jeremiah Nyegenye: Mr. Chairman, I want to say that Miss. Nyamweya wants to say

something.

(Laughter).

Com. Mutakha Kangu: Nyamweya, say this something.

Pauline Nyamweya: I was just pointing out that that registry does not cure the problem of when

do those laws take effect. So, that still needs to be thought about.

Com. Mutakha Kangu: Publication, may go to when they take effect. Kavetsa, and I think now

we must finish. I am sure you are now getting even more hungry.

Com. Kavetsa Adagala: No, the hunger has gone. It is now famine.


(Laughter).

Com. Kavetsa Adagala: This one may be a good short title for the registry but it really should

have registry of enactments of-- Then it should be that clear. Because, it should not just be

enactments in my view.

Com. Mutakha Kangu: Maranga. We are on 267, let us make a ruling on this and then move

on.

Com. Charles Maranga: Chair, let us note, restore and move forward.

Com. Mutakha Kangu: I think that is a good summary. Secretariat.

Com. Wanjiku Kabira: Can I suggest-- I am just wondering now, over--


Com. Wanjiku Kabira: --you know, Kenya Gazette, was it Nyegenye or Gicheru who said,

Kenya Gazette means the Kenya Gazette? Can we put it under the definition of terms? So, we

can have district gazettes and regional gazettes if we are talking about publication.


Com. Wanjiku Kabira: I think Nyegenye talked about-- I thought he talked about--

Com. Mutakha Kangu: Let us do this.

Com. Wanjiku Kabira: He talked about the implications. So, we do not have to publish here,

you know, all the time.

Com. Mutakha Kangu: Let us do this. Let me make this ruling and I think it will help. That we

note that 267 has been omitted, the explanation is that part of it may be covered under 246 but


we still note that when the laws take effect it does not come out under 146, the way Nyamweya

said. So that those looking at it can be able to see what value to get from the 267 to make sure

that publication takes effect.


Com. Mutakha Kangu: I think that can finish with our work. Isn’t it?

Commissioners: Yes.


Com. Wanjiku Kabira: By the way, this discussion also took place in the Committees. You

know whether you have to wait for the Kenya Gazette as we know it or whether the districts can

be able to publish their own--

Com. Kavetsa Adagala: Their work.

Com. Wanjiku Kabira: Yeah. So, devolving even the power to--

Com. Mohammed Swazuri: Can I give you an information? In Ethiopia, we found out that each

region has its own Kenya Gazette.

(Laughter).

Com. Wanjiku Kabira: Exactly.

Com. Mutakha Kangu: Not Ethiopian Gazette?

Com. Kavetsa Adagala: Can I say something, Chair?

Com. Mutakha Kangu: Hoping it is not reopening but--


Com. Kavetsa Adagala: Not reopening, but actually, here it is just that it is like we are thinking

in an old mold. So, the Kenya Gazette should be devolved. But how do other districts know

about this? They would look for it if something is happening in a district?

Com. Mutakha Kangu: I think the point will be that if you have district gazettes, then they will

be transmitted to the Registry of laws and those who are looking for these laws from all corners

of the country should be able to access them in the registry of laws. I hope that will be able to

cure that. So, are we-- Yes, Wanjiku.

Com. Wanjiku Kabira: No, no, I am not saying anything, I was switching it off.

Com. Mutakha Kangu: Can we at this point be privileged to thank the members for their very

dedicated performance in this particular session. Chair, when do we reconvene tomorrow?

Com. Abida Ali-Aroni: 9 o’clock.

Com. Mutakha Kangu: Now, this lunch, is it me to invite these members to it or can I take

credit?

Com. Abida Ali-Aroni: I have appointed, delegated, devolution.

Com. Mutakha Kangu: May I be privileged to invite all participants to the Devolution Chapter

to lunch? We worked it out with Wanjiku and you will thank us for it.

(Laughter).

Com. Wanjiku Kabira: No, we said people must eat.

(Laughter).

Com. Mohammed Swazuri: Point of Procedure.



Com. Mohammed Swazuri: I am just saying that this Chapter has been done in kind of some

pressure towards finishing, but I know it is a very important Chapter and I suspect we might have

overlooked one or two things. So, the two Rapporteurs can assist us in making sure that the two

Drafts actually march each other.

Com. Mutakha Kangu: Now, we get the point. The truth of the matter is that we looked at this

Chapter ourselves and when we did, I think it was before the approach to the verification had

been taken. Our approach was that, let us confirm what is there. Let us confirm what is left and

see, of that that is left out, can we live with it or is too much lost? I think a lot of the things we

had said, even though this is left out, the greater part of the principle is there, but we note what

you have said, it is important. We shall continue because when we come back to Finance, we

shall still be looking at certain aspects of Devolution. So, if we notice anything that we may have

missed out on what we have dealt with, I think we will bring it to your attention.

Com. Wanjiku Kabira: Maybe in addition, there were at least three or four main issues which

we thought needed to be reinstated and you have reinstated them. But like Kangu says, the

discussion is not over until we go to Finance and we will raise the issues that are not covered.

But I also agree with Swazuri that some small sub-articles could be left out and have significant

implication. So, we should go through it again.

Com. Mutakha Kangu: We shall continue.

A Commissioner: Do not add.

Com. Wanjiku Kabira: We will just be reinstating.

Com. Mutakha Kangu: Thank you.


The meeting adjourned at 2.05 p.m.

&&&&&&&&&&&&&&&&&&&&

The meeting was called to order at 10.45 a.m. with Com. Wanjiku Kabira in the Chair.

Session Chair - Com. Wanjiku Kabira

Rapporteur - Com. Mutakha Kangu

Topic - Chapter 14 – Devolution of Power

Com. Bernard Njoroge: Tunamshukuru Mungu kwa siku hii.

Tunakushukuru kwa ajili ya uhai uliotupatia kwa ajili ya mapenzi yako na tunakushukuru kwa

ajili ya familia zetu, na kwa ajili ya kazi ambayo umetuajiri. Utusaidie leo katika mawazo yetu.

Tutimize wajibu wetu tukikuangalia Wew, utuongoze na tunaomba haya kwa Jina Lako. Amen.

Com. Wanjiku Kabira: Okay, thank you. Can I-- So we want to continue with Devolution

and I was going to say that in the case of Devolution, we want to go through the Chapter as it is

at present and then we will look at the corrigendum. So, I hope we will make sure that

everybody has the corrigendum because the corrigendum takes away the information that went to

Public Finance, Legislature, Public Service and we will confirm that what was in the

corrigendum has been taken to Representation and so on, that it has been taken to those Chapters.

But we will complete the Chapter as it is to begin with and then we will go to the corrigendum

because what we had in the Devolution actually falls in line with what we agreed upon that we

are looking at the document for the 26th plus the corrigendum, vis-a-vis the document of the 23rd.


So, 213 is where we stopped in the document of the 23rd and 213 on Regional executive

committee corresponds with 238--



Com. Abida Ali-Aroni: 213 of the page or the Article?

Com. Wanjiku Kabira: No, 213 of the Article on page 92.

A Commissioner: Which version?

Com. Wanjiku Kabira: 23rd. I thought we agreed we begin with the 23rd?

Commissioners: Yes.

Com. Wanjiku Kabira: Okay, yeah. 23rd, page 92, Article 213 and the other one is 238, page

150 of the 26th. Aiye, Bishop prayed and left? (Laughter).


Com. Wanjiku Kabira: Okay. (Laughter). So, we are together?


Com. Wanjiku Kabira: Now, 213(a) (i) and (ii) corresponds with 238(a), “regional chief

executive and a deputy…” (i) and (ii) is the same.

A Commissioner: Yeah, then (b).

Com. Wanjiku Kabira: Then (b)--


Com. Abida Ali-Aroni: Point of Order. There is Bishop.

Com. Wanjiku Kabira: Okay, welcome back, Bishop.

Com. Mutakha Kangu: Okay, let us proceed now.

Com. Wanjiku Kabira: Okay, 213(1) (b) corresponds with 238(b). They are the same, almost

word for word, yeah. Then 213(2) correspond with 238(2). So, can we approve that particular

provision and then worry about the other provisions, eh?


Com. Wanjiku Kabira: Okay, I will take you through. So, we approve 213 and then we go

back now to the original Draft, 238(3).

Now, 238(3) appears in 231 of the 23rd Draft. You know, all those things about eligibility of

various executives, qualifications and so on are put together in 231(a) and 231(b). So, those two

are taken care of, okay? Number (3) is taken care of.

A Commissioner: 231.

Com. Wanjiku Kabira: Okay, 231. Now, it says that “A person is eligible to be a member of

regional executive committee if that person is qualified for membership of the National

Assembly and then has been resident in the region, district or location concerned throughout the

period of twelve months…”, which we discussed last week, “…immediately before the date of

the election or appointment”. And what we have in (b) says, “meets the requirements relating to

residency…”, it is the same, “…in the region”. I think Nyegenye explained last week why they

put twelve months. Is that correct? Yeah, you remember? So, we do not have to go back to the

explanation again.


So, (3) is taken care of and then we have number (4) on the next page where we have the illness

or the absence of Regional chief executive, the regional chief executive, okay, sorry, they hold

office for a term of five years. Okay, number (4) “during the illness or absence of a regional

chief executive…” “…the deputy regional…” “…and has all the functions…”. That one is

missing but--

A Commissioner: 4, 5 and 6.

Com. Wanjiku Kabira: Yeah. 4, 5 and 6 are actually missing although if you look at 232,

Procedures and internal organization of devolved government bodies. “Until relevant provisions

are made by an Act of Parliament for the purposes of Article 230…” which is the various

laws…”-- “…each assembly, council or executive committee established by this Chapter may,

by resolution, regulate its own procedure and internal organization”. I do not know whether--

But maybe we should ask Nyegenye to explain whether--

Com. Mutakha Kangu: Nyegenye, any explanation on these three?

Jeremiah Nyegenye: Yes. Thank you, Mr. Chairman. Clause (4) is to be found in Article 232

(2).

Com. Mutakha Kangu: 232(2).



Jeremiah Nyegenye: 5 is 226.

Com. Mutakha Kangu: 226, Terms of office, eh?




Jeremiah Nyegenye: (6) is 232(2) (a).

Com. Mutakha Kangu: 232(2) (a). Are we happy with that?


Com. Mutakha Kangu: So, we verify and confirm? So, Wanjiku, let us move to the next

Article.


Com. Mutakha Kangu: But I asked--

Com. Wanjiku Kabira: It has been explained.

A Commissioner: No one answered you. You just asked and went ahead.

Com. Mutakha Kangu: Okay, fine, can we hear from you, Dr. Swazuri?

Com. Mohammed Swazuri: Yes. 232(2) (a)--

(Inaudible discussions on the floor).

Com. Charles Maranga: You know--

Com. Wanjiku Kabira: It says 232(a).

Com. Charles Maranga: Yes, “the appointment or election and removal of persons as…” But

(4) is talking about, “during the illness or absence of a regional chief executive, the deputy

regional chief executive has all the functions, powers and responsibilities of the regional chief

executive”. That is not covered anywhere.


Com. Wanjiku Kabira: Yeah, 232(1).

Com. Paul Wambua: 232(1), “Until relevant provision is made by an Act of Parliament for the

purposes of Article 230, each assembly, council, executive committee established by this

Chapter may, by resolution, regulate its own procedure…”. So, it is intended that will go to an

Act of Parliament.

Com. Charles Maranga: Let me now ask another question.

Com. Paul Wambua: Okay, so (2)(a)--


Com. Paul Wambua: I am on the floor. (2)(a), “confers powers of appointment, removal of

the chairperson and deputy chairpersons”. So, it is covered.


Com. Charles Maranga: If you look at 239, “Election of regional premier and deputy…” I do

not know where the premier and deputy-- Those are elected persons. So, you cannot appoint

them. They are elected. The other point here is that 231 to me looks like a Transitional

Provision. Immediately that Act of Parliament is in place that is a transitional provision, to my

understanding. Unless to the contrary because 231 - the way it is phrased is like once that one is

done, then that Act of Parliament takes precedence over any other. So, I think we want to make

this one clear.

Com. Mutakha Kangu: Nyegenye, do you have anything to add, given the concerns that have

been raised?

Jeremiah Nyegenye: Thank you, Chairman. The head note speaks of qualification for election

or appointment, just to cover the concern about appointment and election and then with regard to


the concern that this is transitional, interim provisions are serving more or less the same

functions as transitional provisions. So that would be correct. But my view would have been

that (4) is adequately catered for.

Com. Mutakha Kangu: What is the position of the members? Are we adequately covered or

not? Yes, Maranga.

Com. Charles Maranga: You know the Article 4 which we are discussing is talking about

“during the illness or the absence of a regional chief executive”. “The deputy regional chief

executive has all the functions, powers and responsibilities of the regional chief executive”. If

you go to Article 214, Election of regional premier and deputy regional premier, these two

persons are elected. So, for avoidance of doubt the deputy should automatically take over the

functions of the regional premier and I think we want to be clear about that. There is no

Committee which is going to appoint somebody, that now we are going to appoint you to act in

an acting capacity.

Com. Mutakha Kangu: Then Wambua.

Com. Paul Wambua: I think the principle, Chair, we are concerned with is whether we want to

write too many details in the Constitution. The moment we make it very clear that under 232,

there will be an Act of Parliament passed to regulate how these elections and appointments are to

be done, then I do not think we need these details which are contained in 238(4). I think that is

the thing we should address.

Com. Mutakha Kangu: Any other view? Well, in the circumstances, I think, let us verify and

confirm but note what Maranga has raised. I think it can move us forward. Is that okay,

Nyegenye? Make a notation on (4)? Fine?


Com. Mutakha Kangu: I thought we are ruling in your favour?


Com. Charles Maranga: Yeah, that is okay but what I also want to add is that you know very

well this would be a political position where somebody is elected and he is supposed to-- It is the

same procedure which we follow where, for example, in the absence of the President then the

Deputy President automatically acts, in the absence of the two and so on. There is order and I

think this sub article is trying to bring order to that kind of organization.

Com. Mutakha Kangu: So, a note on (4), the rest are covered. Can we then move to the next

Article?

Com. Wanjiku Kabira: Okay, thank you. 214 is in the other document 239. 214(1) is

equivalent to 239(1) except that they have edited out some words. They have edited out the last

one and a half sentences “…(Other than those who are at the time delegates to the regional

legislative assembly).” The reason for this was “A regional premier and a deputy regional

premier shall each be elected by an electoral college consisting of all the elected members of

district councils within the region (other than those who are at the time delegates to the regional

legislative assembly). The argument for this was that they would have a conflict of interest, you

know, to actually stand for regional or deputy premier but those words were left out.


Com. Mutakha Kangu: I think-- We were consulting. We are happy with the leaving out of

those words because I think what we were trying to capture was that at the conceptual level, we

were saying that members of the regional assembly would have a right to sit in their respective

district councils because elections to the regional assembly are based on representation of the

districts and we were saying that those who come from a specific district would have a right to

sit in the district council and therefore, they are the ones who would not be allowed to participate

in the elections of the regional premier. But I think what was written here was not bringing out

that message, so I think it is better left the way it is unless members have something else to raise.


Com. Mohammed Swazuri: The one of the 26th?


Com. Mutakha Kangu: No, in the one of the 23rd. The one of 23rd.

Com. Wanjiku Kabira: We retain the one of 23rd as it is.

Com. Mutakha Kangu: Because in the 26th one, those words in the brackets do not seem to be

bringing out the message or, Nyegenye, you have something?

Jeremiah Nyegenye: Yes. Thank you, Chairman. I would like to draw your attention also to

page 151 of the corrigendum where those words were actually struck out.

Com. Mutakha Kangu: Yeah. I think we should be cross-checking.

Com. Wanjiku Kabira: Okay, fine. So, we move on?

Com. Charles Maranga: Yeah, that is fine.

Com. Wanjiku Kabira: Okay, thank you. Now, 214(2) corresponds to 239(2) and 214(3)

corresponds to 239(3). It is the same.

Com. Mutakha Kangu: Any issue? We are okay? So, let us verify and confirm that and we

move to 215.

Com. Wanjiku Kabira: 215, Election of mayor and deputy mayor of Nairobi, which

corresponds to 240 of the 26th Draft, and actually it is the same, so there is not much discussion.

So, 216?

Com. Mutakha Kangu: 215, we are okay?


Com. Mutakha Kangu: So, we verify and confirm.


Com. Wanjiku Kabira: Now, 216, Functions of regional executive committee, corresponds to

241. 216(1) corresponds to 241(1). Now, 216(2) corresponds to 241(2) and then we have

again--

Com. Mutakha Kangu: (3) is left out.

Com. Wanjiku Kabira: Number (3) is left out. “Members of the regional executive shall act in

accordance with them…”. I know we have heard this explanation, even in Mombasa, once or

twice but maybe--

Com. Mutakha Kangu: But, Nyegenye, you can repeat or if you have a different explanation.

(Laughter).

Jeremiah Nyegenye: No, Mr. Chairman, I do not have a different organization. (Laughter).

Sorry, a different explanation. It is just that the requirement worked in accordance with the

Constitution is superfluous. It is a requirement on every person. So that is not felt to be

necessary and it would also give the impression that anyone for whom it is not specifically stated

is not required to act in accordance with the Constitution. The (b) part, I think, is covered in

216(2).

Com. Mutakha Kangu: 216 2), eh?

Jeremiah Nyegenye: Yes. That is the essence of being accountable without being too specific

and too particular. The essence of being accountable is to provide full and regular reports.

Com. Mutakha Kangu: And if you look at the Supremacy clause of the Constitution, “This

Constitution is the supreme law of the Republic and binds all state organs at all levels of

government”. I think that captures the aspect of the Constitution, isn’t it? So, are we satisfied

with that?


Com. Mutakha Kangu: We can verify and confirm?



Com. Mutakha Kangu: The omission.

Com. Abdirizak Nunow: We need to note that we have been doing that so that we say, this has

been left out but no value has been lost.

Com. Mutakha Kangu: Is lost, yeah?

Com. Abdirizak Nunow: Yes.


Com. Wanjiku Kabira: Okay. Thank you. Now, we are at the district level and--


Com. Wanjiku Kabira: --you will find that 242 is missing. Oh, sorry, 217 is equivalent to 243.

So we actually do not have the 242. Maybe what we should do is to approve 217 and ask

Nyegenye for the explanation of 242.

Com. Mutakha Kangu: Nyegenye, 242.

Jeremiah Nyegenye: 242, we could look at the corrigendum, page 152.

Com. Mutakha Kangu: 152, we had deleted, eh?




Com. Wanjiku Kabira: Okay. Because elsewhere-- By the way, later on, we talk about

Nairobi being managed through an Act of Parliament, which is 233.

Com. Mutakha Kangu: Yeah, yeah. So, in fact, the point Nyegenye is mentioning is that by

the time we were going to Plenary with the corrigendum, we had already left it out. So, it is not

an Article we should be considering as part of what was passed by the Conference. It had

already been left out in the corrigendum, at page 152 of the corrigendum. Eheh?

Com. Wanjiku Kabira: Okay, we are through with 217, eh?

Com. Mutakha Kangu: 217, you are okay?

Commissioners: Yes.

Com. Wanjiku Kabira: Okay, 218, the Legislative authority of district councils. 218(1) is

equivalent to--


Com. Wanjiku Kabira: 244(1). 218(2) is equivalent to 244(2) and (3) is equivalent to 244(3).

Com. Mutakha Kangu: Mmh. How about (5)?

Com. Wanjiku Kabira: I thought we approve this part--


Com. Wanjiku Kabira: --and then we deal with the other clauses.

Com. Mutakha Kangu: Are we happy with those ones before we look at the omitted (5)?

Maranga, anything?


Com. Charles Maranga: Yeah. But (3) is not the same. It is different. 218(3) is not the same

as 244(3).


Com. Charles Maranga: The meaning is different to me.

Com. Wanjiku Kabira: Okay. (Reading through). Yeah, it is different. I am sorry.

Com. Mutakha Kangu: Nyegenye, any explanation on that?

Jeremiah Nyegenye: Mr. Chairman, 218(3) is 244(5) (a).

Com. Mutakha Kangu: 244(5) (a) is 218(3). How about 244(3)?

Jeremiah Nyegenye: 244(3), unless we can find it elsewhere and I do not know that we will, it

does not seem as if it is something you need to say because that is the way they will operate

anyway. The relationship between the district council and the regional council, it seemed to be a

stating of the obvious.

Com. Mutakha Kangu: Dr. Swazuri.

Com. Mohammed Swazuri: Supposing they do not do that, how can you catch them? You

should only state it.

Jeremiah Nyegenye: Mr. Chairman, they will be in violation of the Devolution principles of

negotiation, co-operation and what was the other one? And?

Com. Wanjiku Kabira: Co-ordination.

Jeremiah Nyegenye: And inter-dependence and co-ordination.



Com. Paul Wambua: I was wondering, what is the effect of the use of the word “may” as used

in (3)? Is it (3) or (2)? Just following what Nyegenye has said, does it really add anything?

Com. Mutakha Kangu: Now, I think the intention we had was that a district government may

notice a pressing area for legislation for a matter concerning them and the wider region and

therefore, a matter outside the jurisdiction of the district government. So, they may bring it to

the attention of the regional assembly that there is need for legislation on this area in our region.

Can you as the regional assembly, proceed to legislate on this area so that we can be able to run

our affairs in the district with the legislation? We would have done that ourselves but this is

outside our jurisdiction. It is within your jurisdiction. That was the intention we had, so that we

are saying that legislation at the regional level should not just be left to the regional government

alone. If the lower levels can suggest something, they should have an avenue to initiate and

suggest to the regional assembly to take it up. That is all that we had in mind. So, I do not

know. Prof, you wanted to say something?

Com. Idha Salim: I was just saying that we need the equivalent of that and it is a very

important one.


Com. Idha Salim: Those circumstances may arise and if they do, how do you deal with them?

Com. Mutakha Kangu: I think I will suggest that we rule that-- We note that (3) of 244 is

missing and that it may be worthwhile to have it back.

Com. Paul Wambua: (Inaudible).

Com. Mutakha Kangu: You know, your question was on the use of the term “may”, probably

in contradistinction to the use of the term “shall” and we are not imposing a duty on the district

governments to recommend legislation to the regional assembly but we are allowing them room

to do so if they find it necessary.


Com. Paul Wambua: And the other thing, Chair, then even assuming that were the case and

you think that is something which should go to legislation.


Com. Charles Maranga: I think Gicheru did explain the use of the words “may” and “shall”. I

want to request that Gicheru explains once more.

Com. Mutakha Kangu: Gicheru, can you repeat if you do not have a different explanation?

(Laughter and inaudible comments on the floor).

Ndoria Gicheru: Mr. Chairman, I think in this context, “may” means “permissive”. It has its

ordinary meaning. But what I had explained was that, there are cases where “may” may mean

“shall”. And I said we have a long catalogue of judicial decisions on the point. So, the context

in which these expressions are used, is very important for the purposes of interpretation.

Com. Mutakha Kangu: Here they have mentioned the Judiciary. You have something to say?

(Laughter).

Ndoria Gicheru: Yeah, yeah, in this particular case here, “A district council may…”, well, it

appears that it is discretionary. “May” has its ordinary meaning that is “permissive”.

Com. Wanjiku Kabira: So, in this case, it is the ordinary meaning?

Com. Mutakha Kangu: I think the point, Mr. Wambua, is this, that we are giving the district

government a discretion to propose and if I may use Gicheru’s words, it is permissive. We are

granting them permission to do that. And the intention is that, if they do that, nobody should be

able to raise the question, you are not there to tell us what to do. Because one would ask them--

They can be told that, and they would be able to say, “but the Constitution allows us, it gives us


permission to do that”. Because there are situations where the regional assembly may become

rogue and say, “who told you that you can instruct us on what to do?”

Com. Wanjiku Kabira: But I think even in this case, given the powers we have given to the

districts as opposed to the powers of the region, it is more likely that the districts actually would

be the ones saying, “I cannot work with the next district on this issue, unless we have a policy.”

Com. Mutakha Kangu: At a regional level?

Com. Wanjiku Kabira: So, it is a very important provision.

Com. Mutakha Kangu: Yes. Bishop and then we move to Lethome.

Com. Bernard Njoroge: If the district may recommend, do we have an Article like that in the

region? Because then we are saying that this is an important aspect that the region can deal with.

Are they obligated to do that? Do we have-- You see, you are telling the district, you can

recommend this to the region. But do the region have-- Can they act on it? Is there--

Com. Mutakha Kangu: So, enforcement of the recommendation?

Com. Bernard Njoroge: Yeah. Because you are like telling the district, you have a right to do

this, to pass this to the region but there is not an equal obligation within the region to consider

that. So, we either then provide for it or say it was missing or omit this, because then you may

give a recommendation that will never be taken or that can cause conflict between the region and

the districts.

Com. Mutakha Kangu: Maybe Bishop we can deal with that in the inter-governmental dispute

resolution mechanisms. That if they make a recommendation and the region does not act, will

they be allowed to resort to the dispute resolution mechanisms of disputes inter-governmental--

Com. Wanjiku Kabira: Nyegenye has something to say.


Com. Mutakha Kangu: Nyegenye, you have something to say?

Jeremiah Nyegenye: Mr. Chairman, the point raised by Commissioner Bishop is quite

legitimate. But it goes back to what I said, if the principles we have set out mean anything at all,

that these are interdependent, that they are negotiative, that they-- If those provisions mean

anything at all and they do not ring hollow, then this is covered. Because it is unfathomable that

with those provisions, a district can then recommend to the region that, we think this legislation

is required and they ask them, who gave you these powers and what is this all about, and ignore

it. If those provisions have any meaning at all, that should never arise. If they do not, then we

need to provide that and also what Bishop has said, and also require that the regions can also

recommend to the national--


Jeremiah Nyegenye: --and then it would mean that something is seriously wrong. These are

not interdependent, they are not cooperative, they are not negotiative.

Com. Mutakha Kangu: Lethome was next.

Com. Ibrahim Lethome: Thank you, Chair. I think the provision, as it is under section 244 (3),

I think it is necessary. But the same meaning is lost, now when you come to the Draft of the 27 th,

it is lost and we need to capture it there. If I am reading the right Draft. If it corresponds to 218

(3). Is that the case?

Com. Mutakha Kangu: Yes, we--

Com. Ibrahim Lethome: No, it is lost there.

Com. Wanjiku Kabira: 244 (3) is the one we are discussing, eh?

Com. Ibrahim Lethome: 240?

Com. Wanjiku Kabira: 2-- Oh, sorry.


Com. Ibrahim Lethome: No, the Draft of the 26th ,it is 244 (3)--

Com. Wanjiku Kabira: 244 (3), yes.

Com. Ibrahim Lethome: --corresponding to 218 on the Draft of the 27th.


Com. Wanjiku Kabira: No, we are saying that it is not properly covered so we are--

Com. Ibrahim Lethome: It is not-- Yeah, that is what I wanted to say.

Com. Mutakha Kangu: Yeah, he is making the point that it is important--

Com. Ibrahim Lethome: Yeah, it is important--

Com. Mutakha Kangu: --we need to cover it.

Com. Ibrahim Lethome: --it needs to be captured in the Draft that we are verifying.

Com. Mutakha Kangu: Yeah, fine. Judge.

Com. Isaac Lenaola: I think maybe we need to get precisely what Nyegenye is saying, by

looking at the Draft of 23rd. Exactly what Article are we looking at, for that particular question?

Is it 207? Is it 208? I think we need to get the wording, so we do not lose this important aspect

of--

Com. Mutakha Kangu: Wambua. You have gotten the answer, Nyegenye?

Jeremiah Nyegenye: Mr. Chairman, the provision I am referring to, for the contention, is

Article 6 and in particular, clause 2 of Article 6 of the Draft of 23rd.



Com. Paul Wambua: Just a short note, Chair, on what he said. I do not think in view of the

fact that we will be working on the basis of principles, you can push this to dispute resolution.

Remember, it is just a recommendation, unless you want to make it a mandatory provision that

they shall comply. In which case as Bishop says, there has to be another provision to impose a

duty on the region to act. You cannot push it through the district resolution. I think we better

confine it to the principles, as stated.


Com. Isaac Lenaola: Having now seen Article 6, my view is that this Article should not be lost

by saying it is covered in the consultative, interdependent and negotiative process. Because if

you look at 207 (3), for example, clearly the Senate is obligated to provide an institution through

which devolved governments share and participate in the formulation and enactment of national

legislation and that is a very important provision as regards the Senate and devolved units. Yet

between the region and the districts, we are losing this out by saying, it is covered by principle.

So, if we can carry the same principle in 207 (3), then this provision must remain somewhere to

cover the region and the district.

Com. Mutakha Kangu: Yes. Now, if you recollect, I think last week Commissioner Kavetsa

had a good argument that on a number of issues, we set out principles and after we have set out

principles, we move to the particulars that try to give effect to the principles. So, we can be able

to say that (6) gives us the principle of interdependent, consultation and negotiation. But then

218, that (3) we are talking about, which was in 244, makes a specific provision that some of the

things entailed in this consultation will be that, a district can recommend to the region

legislation.

Then coming to what Wambua was mentioning, I was not saying that. In fact, we should put

specifically in the clause for dispute resolution on how to comply with the recommendations.

But I was saying that, as it is, we leave it that way and if a dispute will arise, if a district


recommends to the region and the region does nothing, we already have provisions for settlement

of disputes. And after those provisions we have said you turn to court as a last resort, after you

have done all other attempts and those attempts would be in terms of (6), consultation,

negotiation-- And if you fail, then you go to court. So, I think we may just need to make a note

that 44 (3) may be useful.

A Commissioner: I think you are right.

Com. Mutakha Kangu: So, what next, the other one was?

Com. Wanjiku Kabira: No, the other is--

Com. Mutakha Kangu: Nyegenye had pointed to us (5) (a).


Com. Mutakha Kangu: 44 (5) (a). How about (b) and (c)?

Com. Wanjiku Kabira: I was going to go on to that one.

Com. Mutakha Kangu: Okay, okay, let us pass over to Wanjiku.

Com. Wanjiku Kabira: Number (5)(b), if you check-- (5)(b) is to be found in 227 (a). Let us

see whether that is where it is. “A regional legislative assembly…”

A Commissioner: 22?

Com. Wanjiku Kabira: 227. Power to summon witnesses.



Com. Wanjiku Kabira: And then 227 (b) will correspond to the (c) of that other one. Is that

okay? 224 (5) corresponds to 227 (a) and (b), and then (c) corresponds to 227(b). The words are

even the same. So, I do not think--

Com. Mutakha Kangu: Yeah, yeah. So, are we okay?

A Commissioner: Point number?

Com. Mutakha Kangu: 244 (5) (b) and (c) are at 227 (a) and (b). Now, can we look at (4),

Nyegenye, any explanation on (4)?

Jeremiah Nyegenye: Yes, Mr. Chairman, that is to be found at the Fifth Schedule, item 8. Item

8 of the Fifth Schedule of the Draft of the 23rd.

Com. Mutakha Kangu: Fifth Schedule eh? Page?

Jeremiah Nyegenye: Let me look for it.

Com. Mutakha Kangu: Item 8 eh? Okay, so are we happy with that? Fifth Schedule, page 154

item 8, that is the one--

Jeremiah Nyegenye: Fourth Schedule.

A Commissioner: Page 156.

Com. Mutakha Kangu: 156, eh, okay, item 8.

Jeremiah Nyegenye: No, no, no, it is page 1-- Sorry, it is the Fourth Schedule, Mr. Chairman.

Item 8 is on page 154. Sorry about that.

Com. Mutakha Kangu: The Fourth Schedule, not Fifth.

Jeremiah Nyegenye: Yes, sorry about that.


Com. Mutakha Kangu: Yes. The Schedule dealing with the Assignment of functions?


Com. Paul Wambua: No, Chair, there is something-- If you go to 154, item 8 is dealing with

District planning, statistics, land survey, and mapping and boundaries and housing. And if you

look at (4) of 244, it is totally different. “A district council may formulate plans and policies for

the management and exploitation of the district’s resources and development” totally different.

So, I do not think that caters for--

Com. Mutakha Kangu: Nyegenye any response?

Com. Paul Wambua: Unless there is a further explanation to that.

Com. Mutakha Kangu: You have nothing else?

Com. Wanjiku Kabira: So, we are retaining it?

Com. Mutakha Kangu: So, do we note that? (4)? So, let us verify and confirm with

annotation that-- Or Wanjiku you have--

Com. Wanjiku Kabira: Yes, here at sub-section (4)--

Com. Mutakha Kangu: Sub-section (4) of?

Com. Wanjiku Kabira: Be reinstated. We agreed to use the word “reinstated” until Mosonik

has given us better words.

Com. Mutakha Kangu: Maybe Lethome we can give you the assignment to look him up


Com. Wanjiku Kabira: I think for the-- I am just saying for the time being, that

“reinstatement” means, we think this is a provision, that if lost we will have lost--

Com. Mutakha Kangu: Some value?

Com. Wanjiku Kabira: Yes, some value.

Com. Mutakha Kangu: So, we are done with 218.

Com. Wanjiku Kabira: 218 and 227.

Com. Mutakha Kangu: Yes, Lethome.

Com. Ibrahim Lethome: 244 (5) (a), I do not know whether we have covered it.

Com. Charles Maranga: It is there.

Com. Ibrahim Lethome: Oh, it is there? Oh, okay.

Com. Mutakha Kangu: So, you are satisfied Lethome?

Com. Ibrahim Lethome: Not yet, until I see it. Let me see it.

Com. Mutakha Kangu: Now, so we verify and confirm 218, we also verify and confirm 227.

Com. Wanjiku Kabira: Okay, and reinstate (4).

Com. Mutakha Kangu: With the notations on (4) and (3). Yes, Nyegenye.

Jeremiah Nyegenye: Mr. Chairman, my attention has just been drawn to the fact that actually

(4), the one we want to reinstate, is to be found at 222 (3), in exactly the same words.

Com. Mutakha Kangu: 222 (3)?



Com. Wanjiku Kabira: Oh, yeah, okay.

Com. Mutakha Kangu: Oh, Functions of district executive committee.



Com. Mutakha Kangu: No, Nyegenye, those are Functions of a district executive committee

but we are dealing with functions of the district council.

Jeremiah Nyegenye: There is a problem.

Com. Mutakha Kangu: Yes. You know, the approach we took is that, we are coming out with

a near clear separation of powers by establishing separate institutions at each devolved level. We

establish a legislative institution and an executive institution and we demarcate the functions of

each one of those institutions. So, what you are referring us to, is covering the executive

institution, but (4) is covering the legislative institution. So, I think let us leave the notation as it

was.

Jeremiah Nyegenye: Chairman.


Jeremiah Nyegenye: The two organs cannot surely have exactly the same functions.




Com. Mohammed Swazuri: What Nyegenye is trying to say is that, we do not need 222 (3)

where it is. Okay? We do not need it there, it is wrongly found there.

Com. Wanjiku Kabira: No, I think--

Com. Mutakha Kangu: Yes, Wanjiku.

Com. Wanjiku Kabira: Sorry. You know, again in terms of separating the powers, you know,

the policies and legislation belong to the council. It is the implementation--

Com. Mutakha Kangu: Which belongs to the executive.

Com. Wanjiku Kabira: --which belongs to the Executive. So, we have to separate-- If the

wording is wrong, then we need to--

A Commissioner: To note that.

Com. Wanjiku Kabira: --to note that but we need to separate the two.


Com. Isaac Lenaola: Sorry, I think with that definition, it is in the right place. Policies is an

executive function and so if we brought it to the executive committee, as opposed to taking it to

the legislative authority of the council, then it is properly placed. And so in that context of

separation of powers, let it stay where it is. In which event then our notation on (4) in 244

should go.


Commissioners: Yes.


Com. Mutakha Kangu: Okay, fine. So, we were saying that we verify 218 and confirm it and

we were also saying, we verify 227 and confirm it because it contains what was in 244. So, let

us verify those two and then move to 219.

Com. Wanjiku Kabira: Okay. 219, on the Election of district councilors 219 (1)(a),

corresponds to 245 (1) (a). Okay? Then 219 (1)(b), corresponds to 245 (1)(b). Now, item (c), in

219, what I remember is that this was actually a motion from the floor. So, it should be in the

decisions of the Conference.


Com. Wanjiku Kabira: The addition of the “persons with disabilities”, was an amendment

from the floor if, I remember.

Com. Charles Maranga: Can we confirm it?

Com. Mutakha Kangu: That we have a (c)?

Com. Wanjiku Kabira: We do, it was actually an amendment from the floor.


Com. Charles Maranga: Chair, you know we are verifying and confirming. So, I would be

more than happy if we get, either the verbatim record confirming that, or a corrigendum for that,

otherwise, we note that.


Com. Abida Ali-Aroni: As Maranga was talking, quietly I have checked the Summary of the

Decisions and we have, “insert a new clause after 1(b) to read as follows: “marginalized groups

including persons with disability, older persons and youth, provided that at least two shall be

persons with disabilities.”” Does that cover? If it covers, then this was a motion moved at the

Plenary.


Com. Mohammed Swazuri: Swazuri.


Com. Mutakha Kangu: It is okay. Eh-heh so--

Com. Wanjiku Kabira: Okay, now, so we go to 219 (2), which is the same as 245 (3) and then

(3) is the same as (4). (3) in 219 is the same as (4) in 245.

Com. Mutakha Kangu: And (2) is the one missing?

Com. Wanjiku Kabira: Which (2)?

Com. Charles Maranga: Yeah, the one of--

Com. Wanjiku Kabira: Oh, sorry, (2) of 245. In my notes I have put 231. Let us confirm

that--

Com. Mutakha Kangu: It is true.

Com. Wanjiku Kabira: Yeah. Again it is the qualifications yeah?


Com. Wanjiku Kabira: Which was consolidated uh? 231.

Com. Mutakha Kangu: Yes. So, that shows that 245 is fully covered.


Com. Mutakha Kangu: Anybody has anything to raise? So, let us verify and confirm and then

move to 220.


Com. Wanjiku Kabira: Now, 220-- Before I move to 220, let us look at 246 of the Zero Draft.

Now, the whole of 246--

Com. Charles Maranga: Excuse me.


Com. Charles Maranga: I was wondering--


Com. Charles Maranga: On this Article 219 (3) and you also look at Article 245 (4), one talks

of “constituted” another one talks of “elected”. Can there be an explanation?

A Commissioner: It is the same.

Com. Charles Maranga: No, it cannot be the same, “constituted” and “elected”?


Jeremiah Nyegenye: The one talking about “constituted”, had a problem because it is really

“elected for a term of five years”. So, it was just a replacement of “constituted” with a more

correct term, which from the scheme of the rest of the events, is an election.

Com. Mutakha Kangu: I see Maranga has understood, so we can move on to-- Wanjiku let us

move to 220.

Com. Wanjiku Kabira: I wanted us to move to 246--

Com. Mutakha Kangu: 246, yes.


Com. Wanjiku Kabira: --of the Zero Draft. Let us see whether it is covered in--

Com. Mutakha Kangu: Speaker and Deputy Speaker.

Com. Wanjiku Kabira: The Procedures and internal organization of devolved governments--


Com. Wanjiku Kabira: 232 of the 23rd. All these have been removed and consolidated.

Com. Mutakha Kangu: Nyegenye, any explanation?

Jeremiah Nyegenye: Mr. Chairman, 220 (1) and (2) is 248 (1) and (2), then (3) and (4) is 231

and 232 (2).

Com. Mutakha Kangu: No, we are on 246 of the Zero Draft.

Jeremiah Nyegenye: A-ha!

Com. Mutakha Kangu: Do you have anything to say on that? Gicheru or Nyegenye?

Jeremiah Nyegenye: Yes, it is covered in 232 (2)(a), except that the wording has been changed

to “chairperson” and “deputy chairperson”.


Commissioners: No.

Com. Mutakha Kangu: Okay, any good reason for, or any reason for changing from “speaker”

to “chairperson”?

Com. Wanjiku Kabira: (Inaudible).



Com. Charles Maranga: Chair, I think it is clear that there is a big change on this Article and

given that the district council is a legislative organ at the level of the devolved unit, I think we

need to maintain the word “speaker” for that level. And I do not see-- There is no good reason

as to why they have changed and I think we need to restore that Article in its original format or

formulation.

Com. Mutakha Kangu: Gicheru, do you have anything?

Ndoria Gicheru: Not really, except to point out that, I think it might be advisable to maintain

the dignity of the speaker at the national level. (Inaudible discussions on the floor). Not calling

people at this--

(Laughter).

Com. Mutakha Kangu: Let us give Gicheru time, let us hear him.

Ndoria Gicheru: Personally, I was opposed to the use of the term “speaker” at that level. Let

us have it at the national level then, we can have, in fact other terminology, I mean regional

terminology for lower levels. In fact I remember I had given somebody an assignment to look at

African traditions, and what not and rulers, to come up with equivalent terms. But I think we can

dispense with the use of this term at this level.

Com. Mutakha Kangu: Kavetsa has something to say.

Com. Wanjiku Kabira: (Laughter). I thought the power was at the bottom, not at the top.

Com. Kavetsa Adagala: For the first time I have found someone whom I can really second,

Gicheru! (Laughter). Not on the dignity of the national but on the terminology at the-- I do not

know what he needs, he says he gave someone a research to do, I thought I would assist.


Com. Mutakha Kangu: You are right, because our intention is that in fact the governments we

are creating at the lower level, deserve higher dignity that even the higher level. So, the reason

of dignity may not be very good. But--

Com. Wanjiku Kabira: I was actually thinking about the same. If that is the reasoning, then it

is the wrong reasoning.

Com. Mutakha Kangu: Gicheru, you have something.

Ndoria Gicheru: No, I did not want that point to be emphasized. (Laughter). The idea here is

to get the terminology indigenized. To get indigenous terms, local terms, equivalent expressions

from our traditional leaderships, to replace these ones. But also to avoid confusion, when

somebody says, all over the country, “speaker” (laughter) we have to be always saying “speaker

of the National Assembly”, not speaker-- Because that would be confused with speaker from

the-- (Laughter). So, it is a matter of convenience, we are not belittling the positions held by

these people, but if we can get a more suitable convenient terminology, I think that would be

preferable.

Com. Mutakha Kangu: The problem we have with the explanation you have given, perhaps I

would be willing to be persuaded to say, let us use a different term from what is used at the

national level. But the term you have chosen is misleading. We are coming from a history of

county councils that are headed by chairpersons and you know there are county councils that are

fused. They are not separated the way we have done where we are separating an executive arm

which is headed by a premier at regional level and a governor at the district level and a

legislative arm which has to be presided over by a speaker. So, if we use the term “chairperson”,

with our people who are still in the mode of the county councils that have a chairperson who is

supposed to be the political head and at the same time presides at the meetings, we will cause

confusion. So, perhaps if we talked about a presiding officer--

Number two, if you look at the clause you are referring us to, that is clause 232, it is headed;

Procedures and internal organization of devolved government bodies. So, it does not come out


very clearly that we are talking about persons to preside over the legislative body. It appears

very general. So, we need to be a bit careful. Maranga.

Com. Charles Maranga: Chair, that is the very reason why I felt that, that particular Article has

been mutilated and I feel that the content of that Article is not fully reflected under the new

Article 232. So, my own proposal was going to be that, okay, we might use a different term for

the speaker but the content of that Article needs to remain in its entirety and stand out clearly.

This is because, one of the problems we have been having at the lower levels of governance is

the issue, who should chair the meeting and I think even chairing the meeting becomes a

problem. So, I think we need to provide for that kind of position clearly in the Constitution so

that we can protect the devolved units in terms of their day-to-day activities and in terms of

running the meetings.

Com. Mutakha Kangu: Let us hear Gicheru again.

Ndoria Gicheru: I just wanted to point out that Article 232 does not preclude the use of that

terminology if it is so decided in accordance with that Article 232. It may be decided to use the

same terminology. So, there is no preclusion of those terms. If later it is decided that, that is the

correct terminology, it can be used, it can be reinstated.

Com. Mutakha Kangu: Raiji and then Nunow.

Com. Riunga Raiji: Thank you, Chair. I think this is an interesting debate but I think really,

we are belabouring the point. First of all, I do not see any reason why the one terminology

should be restricted to one person. There can be as many speakers as there are assemblies even

at the location if need be and there is also need for uniformity. I think we are going back to the

system we are trying to go away from, where, for example, the use of the word “president” was

banned for anybody else who presides as if that would take away anything from the President. I

think this reasoning is based on ego. I have no problem if some local equivalent could be found

but for now, I would recommend that there is nothing special about the Speaker of the National

Assembly as opposed to the locational speaker if one is there.


(Laughter).

Com. Riunga Raiji: Dr. Nunow.

Com. Abdirizak Nunow: Thank you, Mr. Chairman. Raiji has more or less said what I intended

to say. But for lack of a local indigenous terminology, I think we should keep to what the

Conference passed because the issues of chairman and chairpersons are also multiple and they

are also being used. The idea here is multiplicity. The NGO heads are chairpersons, certain

committees are headed by chairpersons and chairman or chairperson is everywhere. So, this I

think, is an institution that is supposed to relieve part of the work of the National Assembly

because the National Assembly now is making all the legislation even for the county councils

other than by-laws. Some of the legislations that are area specific that concern tax and other

things will be done at that legislative level. So, I think the speaker of the legislative assembly at

the regional level is more important than the speaker at the national level because those are the

people who address day to day affairs and issues of concern in terms of development and

progress of society. So, we should not shy away from that. The Conference has passed it and I

do not think we should belabour the point. I propose that we reinstate that formulation.


Com. Bernard Njoroge: I know the Conference passed, but you will have some difficulties. As

many speakers as we have, every time the Newspapers write, they must qualify-- “Is the speaker

of the locational council or speaker of-- It is okay if you think but personally, I feel that diversity

is sometimes an art that makes people seem to be more intelligent and therefore if we look for a

local-- I am in favour of that.

Com. Mutakha Kangu: Kavetsa. Maranga, you have spoken many times. I will pass you now.

Com. Kavetsa Adagala: I think the local terminology will be determined at the local level as

they set themselves up. But Bishop told us last week that we are here to do nothing but pass

what the Conference has said. So, I second Nunow.


Com. Mutakha Kangu: Maranga, since you insist, but I hope thereafter you will not.

Com. Charles Maranga: No. Given this Article was passed without an amendment, why don’t

we note and restore it the way Nunow has said and we move on?

Com. Mutakha Kangu: Let us note that and then we move on to 220. Wanjiku you have

something to say?

Com. Wanjiku Kabira: Yes. I was going to say that if the use of language like this is going to

reverse our own general attitude towards the community leadership, then that is why we should

use the name, the Speaker. If it is going to give them greater status and lower a little the status at

the national level, I think then we are moving in the right direction. So, I think we should retain

Speaker.

A Commissioner: That is why we have (Inaudible).

Com. Wanjiku Kabira: Eeh? No, I think Kavetsa said the other time that, and I agree with her,

we need to recognize that we are coming from a specific historical context. Chairman will

actually begin interfering because a Chair is also an implementer. A Speaker knows that the--

His job, like Kaparo, is to preside over legislative council.

Com. Mutakha Kangu: Fine. Let us move on. Wanjiku take us to the next Article, 220. So,

we have noted the need to restore 246.

Com. Wanjiku Kabira: Before we go to 220, can we also deal with 247 so that we get rid of--

which is also--

Com. Mutakha Kangu: That one, I think 232 may be sufficient.

Com. Wanjiku Kabira: Yeah, 232, is that okay? Now, I will move to 220.

Com. Mutakha Kangu: We are saying 247 is covered in 232 on procedures.


Com. Wanjiku Kabira: The one we were just looking at. Okay. 220--

Com. Mutakha Kangu: So, in that event, before you move to 220, can we say therefore that

232 has been verified and confirmed because we have seen a lot of things that are picked from

different places and brought here?

Com. Wanjiku Kabira: Although, in 232, there are many other provisions which are supposed

to be covered.

Com. Mutakha Kangu: Which have not been raised?

Com. Wanjiku Kabira: Which have not been raised.


Com. Paul Wambua: Mr. Chairman, I only wanted to say that we are putting so much hope on

this Article 232 and there is danger in doing that. Everything we are removing, we are saying it

is in 232. How are we going to interpret that all the time? Are we running short of paper or ink

to write?

Com. Mutakha Kangu: Maathai will tell us that actually we should save paper. Okay,

Wanjiku will proceed. Maranga, what is it?

Com. Charles Maranga: On 247, you are saying it is covered under 232 but there is no content

for 247 other than the two sentences I see, “Subject to provision made by Act of Parliament, a

district council is free to regulate its own procedure”, there is nothing else.

Com. Mutakha Kangu: So you are telling us 247 was not adding much or what are you telling

us?

Com. Charles Maranga: No, if you see 247 and 232, then I do not see how you can put it as a

corresponding Article.


Com. Mutakha Kangu: 247 deals with procedures and it was leaving that to an Act of

Parliament, basically saying Parliament will pass legislation to deal with procedures and 232 is

also dealing with--


Com. Wanjiku Kabira: No. 247 has no part two.

Com. Mutakha Kangu: We are saying that--

Com. Charles Maranga: What I want you to note is that 247 corresponds to 232 (1) but 232 (2)

is not there.

Com. Mutakha Kangu: Well, Wanjiku has already noted. We said there are several other

sections that have yielded some of their sub-clauses to 232 and Wanjiku has said there are others

she is yet to reach which also yielded to 232. So, let us leave it pending, we shall confirm it at a

later stage.

Com. Wanjiku Kabira: Okay. We are dealing with 220. District Executive Committee which

corresponds to 248. If you look at 220 (1), “executive authority over districts”, it corresponds to

248 (1) (a) corresponds to (a) and (b) corresponds to (b) and 248 (2) corresponds to 220 (2).

Okay?

Com. Mutakha Kangu: Then (3) and (4).

Com. Wanjiku Kabira: Then we go back to our famous provision, 232. Now, (3), “a person is

eligible…” again, is about qualifications. So, we now go back to 231 and 232.

Com. Mutakha Kangu: And (4).

Com. Wanjiku Kabira: (4) is the one about removal which is 232 now, isn’t it?



Com. Abida Ali-Aroni: Chair--


Com. Abida Ali-Aroni: Where is 232?


Com. Wanjiku Kabira: “A person is eligible to be a district governor or a deputy district

governor if the person is qualified”. It is the same--


Com. Wanjiku Kabira: All the qualifications are-- Yeah, 231 (a).

Com. Charles Maranga: Yeah, but --


Com. Charles Maranga: That is okay, but where is 248 (4)? That is a similar provision which

we had for the deputy premier and if it is not anywhere, then we need to restore that Article.

Com. Mutakha Kangu: Any other comment? Nyegenye and Gicheru, anything?

(Silence).

Com. Mutakha Kangu: So, can we verify and confirm that Article with a notation on (4)?

Com. Ibrahim Lethome: Which Article are we verifying?



Com. Mutakha Kangu: We are verifying 220 against 248 and we are saying some of the things

in 248 went to 231 and others to 232 and (4) is noted as omitted and we want to note that it is

worthwhile. So, we verify and move to 221.

Com. Wanjiku Kabira: Now, 221, Election of district governor and deputy district governor

corresponds to 249. So, 221 (1) corresponds to 249 (1), 221 (2) corresponds to 249 (2)--

Com. Mutakha Kangu: And then (3).

Com. Wanjiku Kabira: --and then we have to deal with (3) which again is 232.

(Laughter).

Com. Mutakha Kangu: Does that capture sub-article (3), Nyegenye? Is it captured at 232?

Com. Wanjiku Kabira: 232 (2) (a) where we have removals.

Com. Mutakha Kangu: So, we verify and confirm?



Com. Ibrahim Lethome: Let me speak for myself.

Com. Mutakha Kangu: Please.

Com. Ibrahim Lethome: At the speed at which Professor is taking us, we are confused because

we have to go forth and backwards. Can she come back again, please, slowly?

Com. Mutakha Kangu: Professor, take them one by one so that we have everybody on board.


Com. Wanjiku Kabira: Was it 22--


Com. Ibrahim Lethome: Of which Draft?

Com. Mutakha Kangu: Of the 23rd.

Com. Wanjiku Kabira: 221 (1) of the 23rd, corresponds to 249 of the 26th (1) and then 221 of

23rd (2) corresponds to 249 (2) of 26th and then number (3)--

Com. Mutakha Kangu: Of 26th.

Com. Wanjiku Kabira: --sub-article (3) is subsumed in 232 sub-article 2 (a).

Com. Mutakha Kangu: Are we okay now?

Com. Ibrahim Lethome: Very okay.

Com. Mutakha Kangu: We verify and confirm? That is Article 221 and then Wanjiku take us

to 222.

Com. Wanjiku Kabira: Okay. 222--

Com. Ibrahim Lethome: I think the way you are verifying is wrong, Kangu.


Com. Ibrahim Lethome: For the records, I think what you are verifying is Article 221 of the

Draft of the 23rd and sub-article 232 (2) (a). For the record, that is how it should read.


Com. Mutakha Kangu: For the record, you have noted, Secretariat? Judge.

Com. Isaack Lenaola: If you look at 232 (2) (a), the removal is “persons as chairpersons and

deputy chairpersons”. 249 (3) is “membership of the steering executive committee”, not the

chairperson or vice chairperson or deputy chairpersons. Therefore, it is other persons other than

those two. Therefore, the removal question for them is not covered. It is still lost.

Com. Mutakha Kangu: We are together on that? So, Nyegenye, a note on that. The note is

that--


Com. Mutakha Kangu: Yeah, I get the point. Dr. Nunow.

Com. Abdirizak Nunow: So, Mr. Chairman, we are saying Article 221 (1) and (2) are okay but

sub-Article (3) has been lost on the previous Article and ought to be restored. Is that what we are

saying?


Com. Abdirizak Nunow: It is not covered elsewhere? Fine.

Com. Wanjiku Kabira: Yes. I think there is no common sense. It will be lost.

Com. Mutakha Kangu: Fine. So, Wanjiku, now take us to 222.

Com. Wanjiku Kabira: Okay. Functions of district executive committee. 222, corresponds to

250. Sorry, 222 (1) (a) of 23rd corresponds to 250 (1) (a) of 26th. 222 (b) corresponds to 250 (d).


Com. Wanjiku Kabira: Yes, it is summarized. (Laughter). Okay, the Fifth Schedule, if you

look at the first part of the sentence, information on the Fifth Schedule, “except to the extent that


this Constitution or national or regional assembly otherwise provides”, that one is left out. Ask

Nyegenye why he left it out.

A Commissioner: What do you say about it?

Com. Mutakha Kangu: Nyegenye, any comment on that?

Jeremiah Nyegenye: I am sure it is with a light touch, Mr. Chairman, why I left it out.

Com. Wanjiku Kabira: Yeah, it is.

Jeremiah Nyegenye: No. I have to think about it. I am sorry I do not have it on hand.


Commissioners: Value lost.

Com. Mutakha Kangu: Wanjiku, what are you commenting on that? Is value lost?

Com. Wanjiku Kabira: No, I do not think so. I think it is clear in the one of 23rd.

Com. Mutakha Kangu: It is okay, there is no much value lost. Okay. Swazuri.

Com. Mohammed Swazuri: I think what is happening, Dr. Nunow is telling me that 222 (b) is

250 (c). So, what of the 250 (b) now?

Com. Wanjiku Kabira: Oh! Yes, sorry. I thought it was--

Com. Abida Ali-Aroni: One is regional legislation; one is the national. So, it is repetition.

Com. Wanjiku Kabira: They are combined in (d) because they implement within the district,

national and regional legislation.


A Commissioner: The other one is better here.


Com. Mutakha Kangu: So, do I take this as a consensus?

Com. Wanjiku Kabira: Let me--


Com. Wanjiku Kabira: I am just wondering about leaving out the--

Com. Mutakha Kangu: Let us give Wanjiku time.

Com. Wanjiku Kabira: I am just wondering about leaving out the reference to the Fifth

Schedule where it is very clear what the various levels of government should implement.

Com. Mutakha Kangu: What do you think? Is it something we should have?

Consultations at the “high” table).

Com. Paul Wambua: The intention is being captured in 222 (b). So, I think we should accept

that and forget about the lengthy provisions of 250 (1) (b) and (c). I think it explains it in a very

clear way. So, I propose that we adopt.

Com. Wanjiku Kabira: We adopt it as it is.

Com. Mutakha Kangu: Then the next one is?

Com. Wanjiku Kabira: The next one is 222 (d)--


Com. Mutakha Kangu: (1) (d)?

Com. Wanjiku Kabira: (1) (d) which corresponds to 250 (c), “co-ordinate the functions of the

district of the…”-- No, I am sorry.

A Commissioner: It corresponds to (d).

Com. Wanjiku Kabira: It corresponds to (d), “coordinate the functions of the district

administration and its departments”. That is (c). It corresponds to (d).

Com. Mutakha Kangu: (d) is on locations.

Com. Wanjiku Kabira: (c) corresponds to (d) of 222.

A Commissioner: (e) corresponds with (d).

Com. Wanjiku Kabira: That is what I said and then (d) corresponds to (e).

Com. Mutakha Kangu: Then (2)?

Com. Wanjiku Kabira: And then (2) corresponds to (2) of 250 and (3) corresponds to--

Com. Mutakha Kangu: To (3).

Com. Wanjiku Kabira: No, let us forget the (3) for now. Let us go to (4).


Com. Wanjiku Kabira: No, I will come back to it.

Com. Abida Ali-Aroni: Ooh!

Com. Wanjiku Kabira: (4) of 222 corresponds to (3) of 250. Okay?



Com. Wanjiku Kabira: Then (5) corresponds to (4) of 250, then (6) corresponds to (5) of 250

and we have an additional (3).

Com. Mutakha Kangu: (3) is a new one?

Com. Wanjiku Kabira: It is an addition, yeah. (3) of 222.

Com. Mutakha Kangu: I think it must be what was coming from the legislative arm.


Com. Mutakha Kangu: So, we are saying it is adding value?

Commissioners: Yes.

Com. Wanjiku Kabira: And we approve?

Com. Mutakha Kangu: Nyegenye has something.

Jeremiah Nyegenye: Mr. Chairman, I think from the discussion earlier, this is not where this

belongs. It belongs to the other place where we asked for it to be reinstated.

Com. Abida Ali-Aroni: I think they are opposite.

A Commissioner: They are saying the opposite.

Jeremiah Nyegenye: Pardon? Mr. Chairman, I am saying the opposite because we said the

opposite. In fact-- (Laughter). Yes, Mr. Chairman. Probably, we said it belonged here when it

actually belongs in the other place and not here.


Com. Mutakha Kangu: You realize that what we said was wrong?


Com. Mutakha Kangu: So, instead it should be taken back to the legislature?

Jeremiah Nyegenye: To the district council. This is what the argument of the two Rapporteurs

was; that the policy formulation belongs to the council. If we begin at 221 (1), we see that the

district executive is an implementation organ. So, this is evidently misplaced.

Com. Mutakha Kangu: Lethome or Wanjiku.

Com. Ibrahim Lethome: I just want to support--

Com. Wanjiku Kabira: Are we not mixing them up because who formulates plans because you

translate policies into plans?


Com. Wanjiku Kabira: No, the executive develops the plans, the council deals with the

policies. So, we have mixed the functions here.

Com. Abida Ali-Aroni: We talked about the one (?).

Com. Wanjiku Kabira: It cannot be plans and policies. Either the legislature formulates the

policies and the executive develops the plans.


Com. Mutakha Kangu: So, what are we saying? Either we have it in both or in one and if it is

one, which one? Nyegenye is saying we should have it in the legislature, Wanjiku is saying

maybe we should have it in both.


Com. Wanjiku Kabira: But they are mixed up.

Com. Mutakha Kangu: Judge.

Com. Isaack Lenaola: What is the (Inaudible)?


Com. Wanjiku Kabira: Both.

Com. Isaac Lenaola: My understanding, and this could be totally warped; but I think my

understanding of these functions is that the executive formulates plans and then they implement

legislation.


Com. Isaac Lenaola: Even policy, from where I sit, I think policy is not the business of the

legislature. The executive formulates plans and policies and then legislature formulates the

legislation in which they implement those by the executive committee. Therefore, to me, and

this is against Nyegenye’s good judgement, this is the correct place for this one and this is what

we said earlier. I still stand by my earlier submission that this is the place for this.


Com. Charles Maranga: I want to agree with Justice Lenaola but then, maybe the word which

is missing is where you formulate and implement plans and policies for the purposes of the

executive. The other one on the council, yes they can also formulate plans and policies by

putting up legislation which will be able to be used to implement those policies and programmes.

So, I think we can put it in both but one we have to add the word “implement”.



Ndoria Gicheru: Mr. Chairman, when we are talking about the legislature at the national level,

even at the moment, we talk about Parliament formulating policies. We know in practice those

policies will have been initiated by the executive et cetera, and then taken to Parliament, but it is

Parliament which is taken as having formulated. Once they are proved as having formulated

those policies, then it is the duty of the executive to implement those policies. So, it is arguable

that the proper place for this provision is the district council rather than the executive. So, there

is overlapping in that in practice, we know who initiates some of these things but in the final

analysis we say Parliament formulates policies and that is the duty of the executive to implement

them.

Com. Mutakha Kangu: Prof. we can pick your brains on this.

Com. Okoth Ogendo: Only to say, Chair, that I thought we were verifying rather than rewriting

the Draft and this argument as to whether what should be where, I do not think is relevant here.

If the Conference passed the provision as it is, that is where it is. So, I do not think we need to

argue as to whether the executive formulates policies or plans if that is what the Conference

passed. That is the only question we should ask.

Com. Mutakha Kangu: I think-- Yes, Maranga.

Com. Charles Maranga: I want to inform the Learned Professor that this particular Article,

sub-article (3) was added. It is an addition and maybe the Conference did pass this, then now we

need to make a decision.

Com. Mutakha Kangu: I think the Conference passed it under the legislative arm and I think

the notation we made when we were dealing with the council should be what we should retain

and maybe we can abandon it here. Dr. Nunow.

Com. Abdirizak Nunow: Mr. Chairman, I am inclined to agree to that proposal, that if this

formulation was passed under the district council and the legislative authority, then it belongs to

that part. But I did not see it as we were going through Article 218, which serves as legislative

authority of district council. One of its authorities should be to formulate plans and policies and


it is not there, Article 218. So if we remove it from here we should be sure that we do not leave

it out, because for me it is an important provision, as I see it and it was passed by the Conference

as the Professor says and we put it where it should be. If it was not passed, then my contention is

it adds value but we need to place it where it belongs.

Com. Mutakha Kangu: It was passed under 244, sub-article (4) and we were noting. I think

we have made a notation at that point that it is covered under the Executive but Nyegenye is

telling us that we were wrong, we should in fact have it covered under the Legislature and

instead of arguing on that, since it was passed under the legislative arm of the district, let us

make a notation that it was located in the wrong place, let it be brought back to where it was

passed.

Commissioners: Yes.


Com. Mutakha Kangu: Yeah, but since we are verifying, let us take it where it was to avoid

problems.

Commissioners: Yes.

Com. Mutakha Kangu: So Wanjiku, take us to the next.


Com. Mutakha Kangu: It was 244, which has become 218.

Com. Wanjiku Kabira: And we reinstated it.


Com. Wanjiku Kabira: Okay, now we are at 221. Sorry, it is 22-- No.


Com. Mutakha Kangu: We are now at 223.

Com. Wanjiku Kabira: 223, Locations. Now, 233. Sorry, 223 of 23 rd corresponds to 251,

yeah? Only that the wording is different. “There is established for each location locational

government, consisting of a locational council and location administrator”. 251, “A locational

government, consisting of a locational council…”. It is the same, only the wording is different.

And then we have an added (2) “A locational administrator…” on 223 “…is accountable to the

locational council in exercise of the powers and the performance…” and is a magician which--




Com. Mutakha Kangu: Through the Chair, please. Wanjiku, are you through with that, or we

take the comment?

Com. Wanjiku Kabira: Yeah, I think I am through.

Com. Mutakha Kangu: Yes Maranga, then we come to Lethome.

Com. Charles Maranga: Yeah, okay I have seen it.


Com. Ibrahim Lethome: No, I was just about to say that the locational administrator is covered

under 251 (1) but it is a little bit different. That is what I was about to say because this one talks

of the locational administrator being the executive authority of the location. So may be there is

nothing of value that I am adding.

Com. Wanjiku Kabira: And that is what we did. (Laughter).


Com. Mutakha Kangu: Are you okay, Lethome?

Com. Ibrahim Lethome: I am okay.

Com. Mutakha Kangu: Fine. So we verify and confirm 2-- Yes, Dr. Swazuri.

Com. Mohammed Swazuri: Two points. 223 - there is an omission of small letter (a).

Com. Wanjiku Kabira: Where?

Com. Mohammed Swazuri: “There is established for each location a locational government”.

I want to adduce-- No, it is not there.


Com. Mohammed Swazuri: No, I am just pin-pointing what I see is important. You may add,

it may not add. And then--

Com. Wanjiku Kabira: Make it read better.

Com. Mohammed Swazuri: Okay, and then when we come to 251in the 26th, it says “a

locational government consisting of a locational council and locational executive committee…”.

Now, where is the locational executive committee in 223?


Com. Mohammed Swazuri: The administrator is the committee?

Com. Mutakha Kangu: Actually, we are making the locational administrator accountable to a

body we have not established. Nyegenye, any comment on that?


Jeremiah Nyegenye: Mr. Chairman, the locational council is actually established. He is

accountable to a locational council but I think that at some point and I do not recall when, and

you, Mr. Chairman I am sure will recall, the idea of a locational executive was dropped at some

point. That is my recollection.

Com. Mutakha Kangu: Wanjiku, any comment on that?

Com. Wanjiku Kabira: I do not remember. (Laughter). Where we established the

committee?

Com. Mutakha Kangu: Eeh.

Com. Wanjiku Kabira: I do not remember right now.

Com. Mutakha Kangu: What was passed? Let us confirm. I think the corrigendum does not

seem to bring out any changes on that. I think let us make that notation Nyegenye, let us note

that and then we note that the addition of two makes value. The rendition of one has omitted

certain aspects which we think add value.

A Commissioner: The aspect.

Commissioners: Yeah, not bad.

Com. Mutakha Kangu: The aspect of the Executive Committee.


Com. Mutakha Kangu: Does that put us together so that we move to the next-- Yes, Nyegenye.

Jeremiah Nyegenye: Mr. Chairman, your corrigendum did not refer to a committee. It referred

to a district executive.

Com. Mutakha Kangu: What page are you at?


Jeremiah Nyegenye: Page 152.

Com. Mutakha Kangu: Of the corrigendum?

Jeremiah Nyegenye: Sorry, do I--

Com. Wanjiku Kabira: But it was in our committee--

Jeremiah Nyegenye: No, no, no.

Com. Wanjiku Kabira: --report that was sent to me.

Jeremiah Nyegenye: No, sorry, I think I have it wrong. Sorry.


Jeremiah Nyegenye: Just forget about that. It is not that, this is referring to the district.

Com. Mutakha Kangu: Okay, Professor Ogendo.

(Laughter).

Com. Okoth Ogendo: Chair, if you look at the original 251 and 254, I think the reason why, in

drafting terms, the Executive Committee was dropped is because 254 says that that executive

power is in the locational administrator.

Com. Mutakha Kangu: Speak up a bit Prof., we are not getting you.

Com. Okoth Ogendo: 254--



Com. Okoth Ogendo: --says “the location administrator is the executive authority at the

location level” and 251 says there is a locational executive committee which would mean, on

face of it, that there is a contradiction. You either have an executive committee or you have the

locational administrator as the executive. And I think what the drafting people did was to leave

254 and remove the executive.

Com. Mutakha Kangu: The contradiction.

Com. Okoth Ogendo: Yeah.

Com. Mutakha Kangu: So what-- Maranga, you have something to say?

Com. Charles Maranga: I think it is important that we establish because it was originally there

under 251, “the locational executive committee”. I think that is why they went ahead to have

254, even though the phrasing of 54 also indicated as if the administrator is the only person

dealing with whatever. But I think we need to have a connection between the locational

executive committee and I think what was needed here is that the locational executive committee

should be a committee in the very sense of it, because this is where policy formulation starts; and

I think it will not be nice to say that an administrator will do for a location. I think I will be

happier if you drop the “administrator” and then retain the “committee”. They can choose one of

their own.

Com. Mutakha Kangu: Raiji. Let us hear Raiji and then Okoth.

Com. Riunga Raiji: I am sorry Chair, I think there appears to be a confusion. You see, if we

look at it-- If we have an executive-- If a committee is the executive authority, then why do you

need a local administrator being also an executive authority? Because then if the executive-- To

whom are they accountable? Because I imagine the scheme which the Drafters were trying to

capture was where you have somebody more less like you have the President and Parliament at

that lower level and I think that appears to be a little bit confused and lost.

Com. Wanjiku Kabira: May be--


Com. Mutakha Kangu: Let Okoth speak and then we come to Wanjiku and then Abida.

Com. Okoth Ogendo: Chair, two things. The administrator is responsible to the council, that is

even clear in both Drafts. It is clearer in the Draft of the 23rd. But I think what we need to do is

to note that the locational executive was deleted out of the original Draft. We do not restore it,

we simply note that that is where it was.

Com. Mutakha Kangu: Wanjiku. Okay, Abida before Wanjiku.

Com. Abida Ali-Aroni: Thank you, Chair. I think the concept of having an executive

committee is different from having the executive authority in one person. So why don’t we note

that, reinstate what was there because we are verifying and note the contradiction. At the next

stage let them decide whether we need an administrator or an executive committee because I

think there are two different things, having one person as executive as compared to a number of

people having the executive authority.


Com. Wanjiku Kabira: I think Abida is closer to what was being discussed at the committee

level, but with the administrator who is actually the chief executive implementing with the

executive committee. I think that is what was understood to-- That was going to be the

Executive Arm while the council remained again – you know – to deal with the policies and so

on. So, I think I would agree that we need to note that the Executive Committee, which is part of

the Executive, is left out.



Com. Isaac Lenaola: My problem is that the Executive Committee only appears at 251 and that

is it. So even in terms of its functions, I do not see it in the body of part 4. So we cannot even

tell from this Draft, what exactly we are meant to do. We are now-- But there must be something


to say about it here apart from—Because when you say in 254, that “The location administrator

is the executive authority of the council”--


Com. Isaac Lenaola: --and then you do not say anything about this committee which you have

mentioned--

Com. Wanjiku Kabira: Mmh.

Com. Isaac Lenaola: --as part of government in 251, there is a lot missing, not just that. There

is a lot more missing.



Com. Abida Ali-Aroni: Sorry, Judge I beg to differ with you. We are talking about the

intentions of Bomas and we are being told by Wanjiku and Kangu that the intention of Bomas

was to have an Executive Committee. So for me, I would-- Working with the administrator, I

would rather we capture both then let them know the contradiction and then it can be sorted out

at another level, other than by us here. Yeah, and the lack of details.

Com. Mutakha Kangu: Maranga, say the last words so that we can conclude.

Com. Charles Maranga: Yeah, I think that is true, that the locational council and the locational

executive committee were intended to be established because even if you come to the district

level, you also find the two bodies where you have the district council and the district executive

committee.

Com. Mutakha Kangu: So can we say this, if I am getting the members correctly, that the

clause on the Executive Committee was omitted and the explanation is that it appeared to

contradict the clause in 254 on the locational administrator. But it will be reasonable to vest the


executive authority of the location in both. So that you will be able to have something that will

say it is vested in the locational administrator working with a locational executive committee. So

that-- You see, the way we have it now, is that we appear to be vesting the executive authority of

the location in two different bodies without connections. And if we are saying our intention is to

have an administrator who works with a committee and not alone, then we vest that authority in

him working with a committee or we vest in a committee chaired by a locational administrator.

Com. Wanjiku Kabira: Who is elected.

Com. Charles Maranga: Yeah, that is okay.

Com. Mutakha Kangu: So we can make that notation, that the part on the Executive

Committee was omitted because there was a contradiction but we observe that it will be better to

vest the executive authority of the location in both. So a rendition that captures both will be

okay. Lethome.

Com. Ibrahim Lethome: You said Maranga is the last one but I think you are re-opening it.

Now, as it is right now in the Draft of the 23rd, there is no contradiction at all, according to me.


Com. Ibrahim Lethome: Because if you look at Article 225 about the functions of the

executive authority that have been vested in the location administrator, sub-article 2 clearly states

that-- No, there is an Article that clearly states that he is accountable to the location council.

Doesn’t that now bring the link that you are trying to bring up yourself, that although he has been

vested with the executive authority as an individual, the location administrator, he is accountable

in exercising that executive authority? He is accountable to the council, which to me is coming

out very clearly and there is no contradiction at all. The contradiction is in the Draft of the 26 th,

according to me.

Com. Mutakha Kangu: No, the position Lethome is this, that all along we have sought to

distinguish between a legislative arm and an executive arm. And in the executive arm we have


had a head with a kind of a Cabinet, a committee, and so we get the entire executive being

answerable to the legislative arm. But here, what is happening is that we have vested the entire

executive authority in a single person, who is answerable to the legislature and people are

arguing that the intention was to vest that executive authority in a group of people who then will

be - in a group - answerable to the council.

Com. Ibrahim Lethome: Then we should retain the rendition of the 26th, as it is. We should

retain that then.

Com. Mutakha Kangu: Okoth.

Com. Okoth Ogendo: Chair, I think what Lethome has pointed out is important. If you are

looking for contradictions, you will find them in the Draft of the 26th.


Com. Okoth Ogendo: If you want to say that that is what Bomas passed, then let us say that is

what Bomas passed, with that contradiction. But we cannot start arguing as to whether you must

always have an Executive. I see no problem whatsoever on the Draft of 23 rd that says, “at the

locational level” because the location may have so few people in the council that instead of

placing up into a council and an executive, all you need is to vest that executive in the

administrator. But I think what we are doing at the moment is saying, what Bomas passed had

an inherent contradiction, in that it created an executive and it also vested executive authority in

the administrator and we leave it at that.

Com. Mutakha Kangu: Raiji.

Com. Riunga Raiji: Thank you, Chair. I think Lethome has more or less made the point. It

was clear we were trying to run away from this colonial chief mentality in the 26 th. It is not

elegantly put and it needs clarity. So I would myself think that we recommend reinstatement of

that and point out there is a contradiction. Because what this other Draft has done; there is no


contradiction but it has reversed the decision by reappointing a chief, an executive chief, as the

head of a location which appears not to be exactly what I think the Delegates wanted.

Com. Mutakha Kangu: So, can we note that? In explaining why that was done may be you

can add what Okoth was saying, that they were thinking in terms of an executive administrator

answerable to the council but we are saying the intention and the decision of the Conference was

to have a committee, the executive authority vested in a committee. Let us note that and then

move to the next.

Com. Wanjiku Kabira: Okay, thank you. We move on to 224, the Locational councils, which

corresponds to 252. “A locational council consists of representatives elected by registered

voters…”.

Com. Mutakha Kangu: 52, eh?

Com. Wanjiku Kabira: Yes, 252 of 26th. And then 224 (2) corresponds to 252 (2).

Com. Mutakha Kangu: Everything is captured?

Com. Wanjiku Kabira: Everything is captured. Yeah.

Com. Mutakha Kangu: So we verify and confirm.

Commissioners: Yes.

Com. Wanjiku Kabira: Okay, 225 of the 23rd corresponds to 254. Sorry, yeah, I may have

skipped one. 254. If you look at 254, you have the first one, sub-article 1, “The location

administrator is the executive authority of the location…” and so on and “is to be elected…”. It

is the same, is it not?

Commissioners: Yes.


Com. Wanjiku Kabira: Now, the 254-- Sorry 225 (2) is--

Com. Mutakha Kangu: Term of office.

Com. Wanjiku Kabira: --again the term of office of the location, “is five years and shall be

eligible for re-election…”. Yes.

Com. Mutakha Kangu: That is an addition.

Com. Wanjiku Kabira: Yeah, but this addition again is the same as what we have in the--

Yeah, under qualification.

Com. Mutakha Kangu: This is the term of office?

Commissioners: No.

Com. Wanjiku Kabira: No, no. “A person is eligible to be a location administrator if that

person has completed four years of secondary education and meets the residency…” you know.

That is 254.

Com. Mutakha Kangu: But the fixing of the five years?

Com. Wanjiku Kabira: Oh, sorry, I was dealing with 254, the 26 th. Now, the fixing of the five

years is added.

Com. Mutakha Kangu: Which we thought was okay. Swazuri, you have something to say?

Kavetsa?

Com. Wanjiku Kabira: Yeah, it is actually “the further term”, I think in-- Sorry, in Kencom it

is “the further term” which is added, not the “five years”.



Com. Wanjiku Kabira: Which corresponds with what we have for the district governor--


Com. Wanjiku Kabira: --and the President.


Com. Wanjiku Kabira: You know the two terms concept which runs all the way down.

Com. Kavetsa Adagala: You know-- Well, I know that we will not change anything, but

completing four years of secondary is quite different from completing and passing four years of

secondary. If you complete four years of secondary and you do not pass, you are a standard

eight.




Com. Kavetsa Adagala: Yeah, but you know (laughter) you can also accrue a--

Com. Wanjiku Kabira: Anyway.


Com. Mutakha Kangu: Let us say the point Kavetsa--

Com. Kavetsa Adagala: In other words, we want people with their school leaving certificates,

not with the academic qualification. That is what it means.



Com. Charles Maranga: Chair, we are verifying and confirming what Bomas passed and I

think I want to stick with 254 as it is. So that 2--

Com. Wanjiku Kabira: Which sub-article?

Com. Charles Maranga: No, that is sub-article 254 (1), it is okay, 254 (2) is left out because I

do not see it under 225, so we need to reinstate that.

Com. Wanjiku Kabira: Can I? For this one--

Com. Charles Maranga: Then number 3, sub-article 3, the term of office of a location is five

years. We need to leave it at that but the one of 225, I said “shall be eligible for re-election for a

further and final term of five years”. I think there must be good value as to why they stuck to

five. The point here is that at locational level the turn over must be very high, there are a number

of people and people want to see things changing. So, I think when they say five years, they

meant five years. They did not say re-election. So, this addition of “re-election for a further

final five term or five years” I think is a big change.

Com. Mutakha Kangu: But Maranga, the way it is, if you go by 254, it means there is no limit.

A Commissioner: Yes.

Com. Mutakha Kangu: Someone can re-contest for life.

Com. Charles Maranga: Okay, that is the meaning!

Com. Mutakha Kangu: That is what they passed.

Com. Charles Maranga: Yeah! That is what they passed.


Com. Mutakha Kangu: Nyegenye, do you have any explanation?

Com. Charles Maranga: There is no explanation.

Jeremiah Nyegenye: Mr. Chairman--

Com. Mutakha Kangu: No, we are saying it was passed but they have changed. Does he have

an explanation? That is what I am asking him. You are asking why and that is what I am asking

him to explain! (Laughter).

Jeremiah Nyegenye: Yes, Mr. Chairman, I cannot have an explanation for why they passed it,

but I can have an explanation for the rendition that we have.

Com. Mutakha Kangu: Yes, that is what I am asking.

Jeremiah Nyegenye: Yes. Now, on the first one, I agree entirely with what you are saying and

this was our feeling also. Throughout the Draft, the scheme of the Draft is to limit tenure of

office. This one, if it was left like that, meant that it was in fact the very opposite of what the

Commissioner is saying. If you intend a high turn over-- If you leave it like this, it actually

means you can contest over and over again which was not consistent with the rest of the levels

and everyone else and it did not appear to the Drafting Team that a deliberate effort was made

that this should be different. It was never evident that it was intended that this one be different.

That is on number one.

Number two, on eligibility and the number of years of secondary education. As pointed out by

Commissioner Adagala, that is completely ambiguous. It creates a problem because does it

mean you have passed anything or you failed everything? Something like that. Again for

consistency, it was all put together under 23--



Jeremiah Nyegenye: --1. So that everybody has some credible qualification and that runs

through all the levels. Thank you.

Com. Mutakha Kangu: Maranga, there is something that you really want to say. Can you say

it?

Com. Charles Maranga: Yeah, Chair, you know there are a number of offices which we have

created in this Constitution which have no time limit. One of it is the Prime Minister, the other

one is Members of Parliament who have no time limit. I do not see why you should limit

somebody at the locational level. So, if Nyegenye wants to convince us that there are time limits

for every executive person who has been appointed through this Constitution, it is not true. The

Prime Minister has unlimited time period, the Member of Parliament - even though he is not

directly under executive - has no limited time period. So, the only persons we have limited for

two terms are Constitutional - you know - Commissions and others, plus the President.

Otherwise the other executives - we have left them open ended.

Com. Wanjiku Kabira: No. I think on the contrary, the regional premier and the district

premier are all actually limited to two terms. For the administrator it was actually consistent

with the heads of the executive--

Com. Mutakha Kangu: The devolved levels.

Com. Wanjiku Kabira: --authority in government.

Com. Mutakha Kangu: Baraza. (Laughter).

Com. Nancy Baraza: Thank you, Mr. Chairman. I think at a conceptual level, Charles is

misleading us on the issue of the Prime Minister, because the Prime Minister-- There are inbuilt

mechanisms for removal of a Prime Minister. So, we cannot say that he has unlimited-- At a

conceptual level, then we will be doing a wrong thing.

Com. Mutakha Kangu: Dr. Nunow. Yeah, you could vote him out, on no confidence.


Com. Abdirizak Nunow: Mr. Chairman, I see the concerns, that this was passed and of course

that is what we are going to point out, that is what we are verifying. But we are also and we have

been doing this throughout, pointing out, well that what was passed is either faulty or unclear or

whatever and we need to be consistent with that. What I suggest is, as I read 252 (2) on legibility

on education, I think it does not lose any value leaving it out. This is because four years of

secondary education is as ambiguous as it can be but we need to note that that provision was

there, it was in this formulation, it has been left out. In the other, where the term of office is

open ended, I think it is going to be a real contradiction to democracy at the grassroot level, it is

going to create a dictatorship. If a locational administrator was to have unlimited power, that is

the best recipient for creation of a dictator because that is where you can manipulate the minds of

the rural folk and mess them up and keep them under your custody for generation. I think more

than anyone else (laughter) the Conference should have seen this – you know - as much more

important than a district governor.


Com. Abdirizak Nunow: Because the district governor is removed from the people. But this is

the person living with the people on daily basis, at the locational level. So we need to note that

this – what do you call it - control on term of office is inconsistent with other similar office

holders that we have created at the regional levels, but this is what the Conference passed. Solve

that and see the new formulation. The new formulation for me adds value. And it is critical that

what it has done is try to be consistent. It captured an oversight which was passed before but at

least in good time to bring it into the Draft of 23rd.


Com. Kavetsa Adagala: Just on that, the only other notation we could make, that this five

years-- This is now in the notes, notes to rewrite--



Com. Kavetsa Adagala: --Draft. Probably what it should have is that is what it is. I do not

know if Maranga was talking about-- In the Draft of the 26 th, it should be one term of five years,

if that is what it meant and it seems like it was something like that. One term of five years and

the turn over in my view, should be that – you know – so that people come up, leadership comes

up. But if it is the other one-- In other words, there are two formulations which can emerge and

we need to put it in the notation. What Bomas passed is five years so we should note it might--

Well, we cannot second guess them but if it read “one term of five years” then it would make

sense.

Com. Mutakha Kangu: Now, Secretariat you have captured--

Com. Kavetsa Adagala: Ahh--


Com. Kavetsa Adagala: The only other thing I wanted to say, it is true we are verifying the

Draft, but you know, the discussions we are having, is so that we can understand and we can see

the contradictions. Otherwise, we will just say, Bomas passed this, this, that and how are you

going to say the better formulation, if we do not discuss it and if we do not convince each other?

Because, in the end, we are the ones who are going to be answering these questions. So, if

everybody keeps saying - we are just here to verify, yeah, I do not know, he went-- Otherwise we

would have finished this exercise in two days or put it in computer, it is easier.

Com. Mutakha Kangu: So, Secretariat, have you noted that? I think Dr. Nunow and Kavetsa

have captured what should be our summary, that the Conference passed five years, which seems

to leave a loophole for someone remaining in office forever, and at the drafting level, additions

were made, the intention was this. So, that can just be pointed out and if people want to stick

with what Bomas passed, they may be able to do that. Now, at this point, where are we moving

next, Wanjiku?

Com. Wanjiku Kabira: We are moving on to the next one, which is 22-- of 271

Last printed 9/24/2004 02:39:00 PM


Com. Wanjiku Kabira: We can finish. Yeah, I think we can.

Com. Mutakha Kangu: Okay.

Com. Wanjiku Kabira: Yeah, we can, if the Chair is giving us lunch. 226 of 23rd, corresponds

to 249, let us see whether we can find it. 249(2), sorry, I am sorry, I think I have--

Com. Mutakha Kangu: Terms of office, eh?

Com. Wanjiku Kabira: --it must be somewhere. It is another 249.

Com. Charles Maranga: That one corresponds to 224.

Com. Mutakha Kangu: I think the terms of office had been spread all over. This is a general

clause.

Com. Wanjiku Kabira: I think I have a problem with that one.


Com. Wanjiku Kabira: Somebody help.

Com. Mutakha Kangu: Nyegenye, can you lay your hands on something?

Jeremiah Nyegenye: Mr. Chairman, this is a provision that tried to assemble all the provisions

elsewhere on--

Com. Mutakha Kangu: In terms of office?


Jeremiah Nyegenye: Yes. So that it is neatly put together instead of repeating it everywhere

else.

Com. Mutakha Kangu: In many clauses?


Com. Mutakha Kangu: Can you identify some of the clauses where we were consolidating

from?


Com. Mutakha Kangu: Like the one we have passed.


Com. Mutakha Kangu: So, can we note it as an addition that seeks to consolidate from various

Articles and it adds value?


Com. Mutakha Kangu: And then confirm and verify? Wanjiku.

Com. Wanjiku Kabira: Yeah, I think it is okay.


Com. Wanjiku Kabira: So, we go to 227.

Com. Charles Maranga: We have already confirmed.

Com. Wanjiku Kabira: 227?




Com. Mutakha Kangu: No, that one was on 226.

Commissioners: Oh, okay.

Com. Mutakha Kangu: We were dealing with 226 now, we go to 227.


A Commissioners: We verified.

Com. Wanjiku Kabira: I know we verified that. it corresponds to 244(5) and (5)(b) and (c).

Com. Mutakha Kangu: Now, 228.

Com. Wanjiku Kabira: Okay, now, 228, Public access, see whether it corresponds with 261 of

the other Draft--

Com. Mutakha Kangu: Just a moment Wanjiku, Lethome.

Com. Ibrahim Lethome: I have been pleading that you should carry all of us on board.

Com. Mutakha Kangu: Yes, yes.

Com. Ibrahim Lethome: Yeah. Let us go back again. 226, I accept the explanation given by

Nyegenye--



Com. Ibrahim Lethome: --that it has brought together the terms of service of all the different

office bearers, we were just about to point at some of them, we pointed out a few of them--

Com. Mutakha Kangu: Yes, please.

Com. Ibrahim Lethome: --and gave out a few examples.


Com. Ibrahim Lethome: But I want to know what to expect on the template, the summary, that

we are making. When it comes now to the observations, what we are observing, and what are we

recommending on that? I think we are moving too fast for that. Can we please get it clearly?

Com. Mutakha Kangu: By the way, we are noting--


Com. Mutakha Kangu: --that 226 is a new clause--

Com. Ibrahim Lethome: Okay.

Com. Mutakha Kangu: --but which has consolidated pieces from various other Articles--


Com. Mutakha Kangu: --and we think it is better put that way.

Com. Ibrahim Lethome: Thank you.

Com. Mutakha Kangu: So, it is verified and confirmed.

Com. Ibrahim Lethome: Yeah.


Com. Wanjiku Kabira: But if I may ask for clarification on this one, an elective office, is that

an MP also?

(Inaudible response from the floor).

Com. Mutakha Kangu: No, this is under Devolution.


Com. Wanjiku Kabira: Because I thought where we had limited the terms, it was the regional

premier, the governor and the administrator. So, if we say all “elective posts”--

Com. Mutakha Kangu: I think the rendition then should have been, subject to any other

specific clauses in this Chapter.

A Commissioner: It is there.

Com. Mutakha Kangu: Yeah, it is there. “Subject to specific--




Com. Wanjiku Kabira: Which also takes care--

Com. Abida Ali-Aroni: We are happy. We are doing very well.

Com. Mutakha Kangu: Let us move together, Nyegenye has said before we move to 227,

Gicheru.


Ndoria Gicheru: A minor point. (b) of 226, second line, instead of coma after the word

“qualified”, could you put the word “for”.


Ndoria Gicheru: It is missing.

Com. Mutakha Kangu: “otherwise qualified for reappointment”.



Ndoria Gicheru: Yeah, you can have both but--

Com. Charles Maranga: Or you can have--

Com. Mutakha Kangu: Let us have annotation on that, as an editorial note. Isn’t it?

Com. Kavetsa Adagala: No, the coma should be there.


Com. Mutakha Kangu: We keep the coma but add the word “for”.


Com. Charles Maranga: After the coma.

Com. Mutakha Kangu: Okay, fine. Wanjiku move to 227.

Com. Wanjiku Kabira: 227, we said we have verified. Is that okay?



Com. Wanjiku Kabira: Okay, 228.


Com. Wanjiku Kabira: Now, 228, I was asking you to go to 261 of the 26 th Draft and it is the

same, okay? So, word for word. So are we moving--

Com. Mutakha Kangu: Are we okay?

Commissioners: Yes.

Com. Wanjiku Kabira: So, we move to 229. Now, 229 is similar to--





Com. Ibrahim Lethome: Except the marginal and the headings.

Com. Wanjiku Kabira: Yes, okay? So, as we move on-- Sorry, before we move on to 230, can

we find out why we lost 262? Balance of gender and diversity.

Com. Mutakha Kangu: Nyegenye and Gicheru.



Com. Wanjiku Kabira: No, no, just wait because it was also in our corrigendum.

Com. Ibrahim Lethome: It has been made more elegant.

Com. Wanjiku Kabira: Somewhere else? (Laughter).

Com. Mutakha Kangu: Let us give Nyegenye time.

Jeremiah Nyegenye: This, I think, appears in Article 12.


Jeremiah Nyegenye: Yes, Article 12.

Com. Wanjiku Kabira: Affirmative action provision?

Jeremiah Nyegenye: Article 12 of the 23rd Draft.

Com. Wanjiku Kabira: Yes, that is the old one.

Com. Mutakha Kangu: Article 12?

Com. Wanjiku Kabira: Article 12 must be on affirmative action.

Com. Mutakha Kangu: That is National values.

Com. Abida Ali-Aroni: Yes.

Jeremiah Nyegenye: Yes it is.

Com. Mutakha Kangu: National Values, sub article (2) what?


Jeremiah Nyegenye: 2 (j).

Com. Mutakha Kangu: 2 (j). “Ensure full participation of women, persons…”--

Jeremiah Nyegenye: “(j). implement the principle that not more that two-thirds of members of

elective or appointed bodies shall be of the same gender” and we made that “sex”. So that is

exactly what 262(1) is saying.

Com. Wanjiku Kabira: Can I explain on 262--

Com. Mutakha Kangu: Wanjiku, yes.

Com. Wanjiku Kabira: --in terms of gender and diversity. The reason why this provision was

put here by the Committee was because once a decision was made that regional representation

will have four people from each region, sorry, was it the Senate?


Com. Wanjiku Kabira: Yeah. That they could not actually implement the one-third in the

same way that we have done it at the district level and at the locational level because participants

in the Committee could not decide which region would give the women and were not willing to

give fifty percent. That was the argument. So, this provision was put in there to remind them,

in terms of the representation, under the devolved governments that the principle must be

followed. And they were not willing to say two men, two women at the regional level, and

therefore, they opted to have this provision instead.



Com. Abida Ali-Aroni: Chair, I do not think we should debate this issue. Wanjiku is talking

from an informed position. She can give us an example of what is happening in Somalia, when

you have such general terms. This is an Article that was passed by the Conference. Let us not of 271

Last printed 9/24/2004 02:39:00 PM

debate it. Let us note and recommend that it be reinstated, so that, it can be dealt with at the next

level.

Com. Mutakha Kangu: Dr. Nunow.

Com. Abdirizak Nunow: Mr. Chairman, I will like to second that because while 262(1), may

be reflected in 12(j), it does not necessarily carry the same weight, because the issue is, whereas

here it mentions clearly under this Chapter, there it is general and spread all over the document.

That notwithstanding, 262(2) and more particularly (3), that is supposed to protect minorities

within districts, it is completely lost out. So, I second that this provision Article 262 be

reinstated.


Com. Kavetsa Adagala: I am sure you can appreciate what I have been saying, that you cannot

just have a principle somewhere and then you do not tie it to anything else and then say it is a

cross cutting issue. Because this is essentially what is being done, that the gender one, let alone

that the second one has been left out, the region one- But it is important that we have a principle

in the goals or there is a goal, a principle, a value, but it must be reflected where it should be,

otherwise, it will just sit there and it will be a point of debate. You know, that is the problem. It

is that it will be a point of debate and maybe it will be a point of debate for another twenty years,

before it is now re-done. We have to be careful that things do not become controversial soon

after the implementation of the Constitution.


Com. Charles Maranga: Chair, I think this particular Article 262, maybe I want to draw the

attention of the members, that the provisions of that particular Article are in-built in various

Articles of this Constitution. For example, 21 (1)(b) and (c), Election of district councillors. If

you go down to another Article 220, the same. That, “the number of members appointed under

clause 1(b) shall not exceed either-one-third of the…” --and so on. So, I think as far as I am

concerned if you say 219(b), for example--


Com. Abdirizak Nunow: Point of Order, Mr. Chairman.

Com. Charles Maranga: --but I want to agree, I am convinced that--

Com. Mutakha Kangu: Point of Order from Dr. Nunow.


Com. Abdirizak Nunow: Mr. Chairman, is it in order for Dr. Maranga to mislead the

Commission by referring us to generalities and the wrong provision?

Com. Mutakha Kangu: He is out of order and you must have noticed when he was reading, he

noticed that he was reading a wrong thing and he quickly wanted to jump over it. We should

ignore that. Let us proceed.

(Laughter).

Com. Mutakha Kangu: So, let us make the note Secretariat, you have heard the views of the

members, let us make that note and then move to the next. The note is that--

Com. Wanjiku Kabira: We reinstate that provision.

Com. Mutakha Kangu: Gicheru, you want to say something? Okay, fine.

Com. Wanjiku Kabira: By the way, this also covers, like Nunow said, when you have district,

even locational council, we have to think about the diversities--

Com. Mutakha Kangu: Majorities, yeah.

Com. Wanjiku Kabira: --within the location. It is not covered anywhere and even minority

communities at the district level, they are not covered. So, I think I am just emphasizing that it is


important. Now, 263-- So, this must be a transitional clause, maybe Nyegenye can tell us where

he put this one.



Com. Mutakha Kangu: It is also missing?


Com. Mutakha Kangu: Anything on that Nyegenye? Now that during transition--

Com. Wanjiku Kabira: The idea for this provision again, sorry, it is not a transitional clause.

The idea for this provision was to ensure that there is a government all the time.


Com. Wanjiku Kabira: That there is no time when there is--

Com. Mutakha Kangu: A vacuum.

Com. Wanjiku Kabira: --a vacuum. So, we do not know why it was left out.

Com. Charles Maranga: We note and move on.

Com. Mutakha Kangu: It is like the executive currently. The cabinet remains in office even

during elections and I think at the national level, we pointed out that elections will be held while

Parliament is still sitting and it is when the new Parliament is being sworn in, that the old one

vacates.



Com. Mutakha Kangu: So, that is what we are trying to capture. Any explanation on that?

Ngoja kidogo. Okay, Maranga.

Com. Wanjiku Kabira: So, we reinstate it?

Com. Charles Maranga: Yeah, we reinstate and we proceed. That is a very important clause.

Let it be reinstated. I think that is okay.



Com. Kavetsa Adagala: Okay, it is what the Conference passed but I do not see how a clause

like this which presents an even playing ground was put here because I remember there was a

time when we even debated in 2002 about having at least one-third remain in and all that. So

that there is an even playing ground because this is really stacking it, even more than now.

Because if you have the assembly or council in office, that is just stacking up against the people

who are coming in. Not always but it does. The incumbents have advantage. But it is

confirmed.


Ndoria Gicheru: Yeah. To follow the same principle, as is followed with regard to Parliament

at the national level, the idea was to make sure that there was no vacuum and the provision

regarding the national Parliament is that a date is given, a period is given within which elections

must be held. So, it could be on the line that before the term expires, maybe elections shall be

held at a particular time, just to make sure that a particular council, for instance, does not go

beyond the time prescribed. Just on the lines suggested, or recommended at the national level

may be within 28 days before the expiry and then elections shall be held. In that case, it will

solve the problem of these two periods overlapping. But the principle is to make sure that there

is no vacuum in the--




Com. Mutakha Kangu: Is that captured anywhere else?

Ndoria Gicheru: Mmh?

Com. Mutakha Kangu: Is it captured anywhere else.

Ndoria Gicheru: No.

Com. Mutakha Kangu: No!

Ndoria Gicheru: I was looking for any other place, I could not get it but I knew it was an

important point.

Com. Mutakha Kangu: Fine. Lethome.

Com. Ibrahim Lethome: You know, I was hoping that Abida will take us to the Seventh

Schedule, the Transitional and Consequential Provisions, because I thought maybe this one

would be covered under the transitional mechanisms.

Com. Mutakha Kangu: It is not transition?

Com. Wanjiku Kabira: It is not transition.

Com. Mutakha Kangu: You know, Lethome, the Chapter on Transition is about exiting the

current Constitution and bringing in the new one.

Com. Ibrahim Lethome: We are also talking about elections, during elections also.


Com. Mutakha Kangu: It does, but the overall intention of the Chapter on Transition is to

create a mechanism of getting the old Constitution die, and the new one get born. But this one is

about during election time--

Com. Ibrahim Lethome: During election time?


Com. Ibrahim Lethome: And I am telling you that if you look at the Seventh Schedule it is

also taken care of.

Com. Mutakha Kangu: Seventh Schedule, where, page?

Com. Ibrahim Lethome: Page 161 of the document of the 23rd, go to item number 6 on Local

Authorities. I am reading sub-article (3) of that item, “All councilors of the local authorities

specified under sub section (1) shall continue to be councilors after the effective date until

elections are called in accordance with the legislation referred to in sub-section (1)”.

Com. Mutakha Kangu: No, that one is about the councils as constituted today. How do we

transit from them, to the devolved councils we want to have? But this clause here is saying even

after we have done that, assuming we are going to the elections of 2007 with councils under this.

Do we dissolve them and hold elections when there is nothing in office or do they remain in

office until we finish elections and a new council takes over?

Com. Ibrahim Lethome: I stand corrected.

Com. Mutakha Kangu: That is the difference between the two. Maranga.


Com. Charles Maranga: Chair, this provision is important and I think what we need to do is

we restore it and we move on.


Com. Mutakha Kangu: So, let me make a ruling. Can I make a ruling? The comments,

Kavetsa, I am sure you wanted to emphasize or you had a different line, I know.



Com. Mutakha Kangu: Please, say it quickly.

Com. Kavetsa Adagala: You know in the Committee, I do not know how you did not take care

of-- You took care of the time and the vacuum and all that, but the principle of--

Com. Mutakha Kangu: Incumbency, misusing the--


Com. Mutakha Kangu: --we seemed to have missed that.

Com. Kavetsa Adagala: --and this is precisely what we are in, you know, the incumbent sits in,

and I thought probably, well, I should not be saying it now, I probably should have come-- but

we were also busy, but the earlier principle that we had discussed of one-third of people

remaining in, so that it is staggered and which works probably for the kind of system we are

trying to do. In the U.S, where a third of this stand and remain there, I think they go to run and

then others-- So that you have elections every two years but for different people.

Com. Mutakha Kangu: I think, it is a major principle which we missed out, we did not discuss

the issue of staggering elections. So, maybe what we do is, let us go by what was passed. We

make a note and maybe we could also add the note of what Gicheru was saying that, maybe that

clause, if it is being reinstated, it may need to be made clearer by fixing dates of elections. But I

am not so sure that we want to fix dates of elections at those lower levels in the Constitution.

But let us make that notation and we move to the next.


Com. Wanjiku Kabira: Okay, 229, sorry, we dealt with that?


Com. Wanjiku Kabira: So, now, 230 corresponds to 272, by the way, 265 of the previous

Draft, 26th--

A Commissioner: Ah?

Com. Wanjiku Kabira: --sorry, it is the one which is not here. So, I just want to account for it.



Com. Mutakha Kangu: In the 26th document?


Com. Charles Maranga: Where is this?

Com. Wanjiku Kabira: Yeah. The one of 26th. 265, the removal, I think we have been dealing

with.


Com. Wanjiku Kabira: 232. The whole of it is covered by 231 and 232. We had been very

specific, I think--

Com. Mutakha Kangu: They decided to--

Com. Wanjiku Kabira: --they decided to take this to legislation.



Com. Wanjiku Kabira: No, in broad terms.


Com. Wanjiku Kabira: Yeah, that is what I am saying. They had gone to the details of the law

(Laughter). I do not know whether Gicheru wants to explain.

Com. Mutakha Kangu: Can we have something from you members? Gicheru and Nyegenye.

On 265 of the document of 26th.



Com. Wanjiku Kabira: Sorry, what I said is that, that Article is out and we were saying that if

you look at sub article (2), (3), (4) and (5) and so on. We thought maybe they removed because--

Com. Charles Maranga: Point of Order!

Com. Wanjiku Kabira: You ask me to explain then you--

Com. Mutakha Kangu: Maranga, let us move on. Okay fine.

Com. Charles Maranga: Can the two chairs guide this meeting? Whether it is the removal of

that provision or retaining it. Is it going to add value or no value? I think that is the guidance we

need.

Com. Mutakha Kangu: That is what Wanjiku was explaining, that certain aspects of it are

captured in 231 and 232 but even regardless of whether we are happy or not, we were asking the


Drafters to render some explanation. They may also be aware of other places where some

aspects may be located. So, Nyegenye, you have the floor.

Jeremiah Nyegenye: Mr. Chairman, don’t you want me to sit, to-- Professor Kabira to explain

what she was explaining first?

Com. Wanjiku Kabira: (Laughter). No, I was explaining that, we assumed that a lot of the

details that are on page 161, it was assumed it would be taken to legislation. So, that is why we

did not follow it up.


Com. Mutakha Kangu: Just let us hear them first.

Ndoria Gicheru: If I heard the point correctly, then we could note that 265(2) and (3) are

subsumed in 230(1) (d).

Com. Mutakha Kangu: Eh -heh. Anything else?

Ndoria Gicheru: And also 232(2).

(Inaudible comment on the floor).

Com. Mutakha Kangu: Eh- heh, Lethome, you had something?

Com. Ibrahim Lethome: Yeah, I am sorry I will be taking you back again.

Com. Mutakha Kangu: No, there is no harm if we have to move together.

Com. Ibrahim Lethome: Let us go back to Article 263, Government during transition.

Com. Charles Maranga: Ngai.


Com. Ibrahim Lethome: Maranga, why are you saying Ngai?

(Laughter).

Com. Ibrahim Lethome: You know, if I was Nyegenye or Gicheru, maybe the explanation I

would have given for why that Article has been deleted, in the Draft of the 23 rd, I would say that,

it is a matter that has been covered or expected to be covered under legislation. Because if you

look at the Articles that we are dealing with now, Article 230, Provisions to be made by an Act

of Parliament. I think that issue is also covered there, if you look at some of the sub articles

there. For example, look at sub article (1)(c), where we are talking about “conditions for the

transfer and recall of powers delegated”. Don’t you think maybe if the language is a little bit

modified, the provisions of sub article or Article 263 are covered in that Article? You know as

you have been talking, I have been trying to think and--

Commissioner Kavetsa Adagala: Yeah, (1)(c) of what?

Com. Ibrahim Lethome: (1)(c) of 230, that is on page 96.

Com. Kavetsa Adagala: Okay.

Com. Ibrahim Lethome: Yeah, that is where we are right now.



Com. Mutakha Kangu: We are trying to strain our imagination to get a linkage. Lethome.

(Laughter).

Com. Ibrahim Lethome: Do not strain. The Article has been left out in the Draft of the 23rd.



Com. Ibrahim Lethome: The explanation I am trying to give as to why it has been left out is

because it is well taken care, of maybe not elegantly or sufficiently, by Article 230 on matters

that will be dealt with through an Act of Parliament. That is what I am trying to say.

Com. Mutakha Kangu: Okay, fine. One comment from Maranga and then we see whether to

re-open it or we just move on as we had ruled.

Com. Charles Maranga: Chair, Parliament can be mischievous and decide not to legislate on

this matter. That is why I think people felt that for us to protect the devolved governments, this

kind of transition should always be there so that Parliament has no option. They know that those

governments exist but if you leave it to legislation, they can decide to legislate them out and they

remain silent on that issue. So, I think it is important that this Article remains and I want to

convince my brother, Lethome, that for those who play the high stakes in terms of politics and so

on, this is an important Article.

Com. Mutakha Kangu: I think let us leave it at the level we had ruled. Maybe we can think

about it a little more later but for the moment, let us leave it at where we were and then continue

with the one we had reached, the one 265. Gicheru had pointed out some aspects. Was that all

or you still have other things to point out? There is nothing else?

Com. Wanjiku Kabira: We still need an explanation for (3), (4), (5), (6) and (7).

Com. Mutakha Kangu: Any explanation for (3), (4), (5), (6) and (7) or for (4), (5), (6) and (7)?

I think (3) was mentioned to have been captured under 230. You cannot lay your hands and eyes

on anything? So, can we note that or Nyegenye you want to say something?

Jeremiah Nyegenye: Mr. Chairman, as I read it, (2), (3), (4), (5), (6) represent a process. The

explanation we had given for that was that, it is a process of removal that is covered under 230

(1) (d) of the Draft of the 23rd but in summary as just method of removal rather than specifics.

Com. Mutakha Kangu: So that those details on process could go into that legislation.


Jeremiah Nyegenye: To legislation, that was the thinking.

Com. Mutakha Kangu: Are we happy with that? Okay, let us note that. The good thing is that

this debate, if we will be a serious country after this, should form a basis of informing the

legislators--


Com. Mutakha Kangu: No, I am not. We are still moving on. Wanjiku, can you move us to

the next Article?

Com. Wanjiku Kabira: Yes. Article 230 of 23rd. Now let us look at-- Sorry, it corresponds to

different provisions. So, 230 sub-article (1) (a) is similar to 272 (1) (e). 230, sub-article (1) (a),

see whether it compares to 272 (1).


Com. Wanjiku Kabira: (e) of the 25--


Com. Wanjiku Kabira: It is 269?

Com. Mutakha Kangu: (b).

Com. Wanjiku Kabira: No. (b) should-- No. What have I put 272 (1) (e) instead of (a)?

Com. Mutakha Kangu: (1) (a) is 272 (1) (e).

Com. Wanjiku Kabira: Is 272 (1) (e). Have you found that?

(Inaudible response from Commissioners).


Okay. 230 of 23rd sub-article (1) (a) is similar to 272 (1) (e). Okay. Have you found it? Now,

(b) 230 1 (b) is similar to 269 (1). No, no, sorry. 269-- yeah?

Com. Mutakha Kangu: (3), (3).

Com. Wanjiku Kabira: 269 (3), yeah? No, no. “Urban areas within a district.” Okay. Let us

leave those ones for Nairobi for the time being. Let us go to (c) and see whether it corresponds

to 272 1 (b) and (c).

Com. Ibrahim Lethome: The one you have just said we leave out.

Com. Wanjiku Kabira: I said let us suspend Nairobi (b).


Com. Mutakha Kangu: Okay, let Lethome--

Com. Ibrahim Lethome: Go to 269 (2) (d), it is there but it is more detailed under (d) than it is

in--

Com. Mutakha Kangu: (2) (d) and (3).

Com. Ibrahim Lethome: Yes, it is there. 269 (2) (d) and (3). Nairobi is not mentioned there

but we know it is the national capital, it is there and other urban centers.

Com. Mutakha Kangu: (3) deals with the urban centers.

Com. Ibrahim Lethome: Yeah, so it is there.

Com. Wanjiku Kabira: Okay. So, we are happy. Now we go to (c) kind of. So, (c) is covered

by (b) and (c). Okay. (d) of 272 (1) (b) which says, that “national legislation may provide that


the power to make laws on a matter is with one government and the power to implement it with

another government or governments” and we combine that with (c), “shall provide for delegation

of powers of one level of government to another and shall specify the conditions for the transfer

and recall of the powers delegated.” So, we are saying the whole of that (c), the “delegation of

powers of one level of government to another…” including the delegation from the government

to regional and district governments of legislative powers, with respect to matters specified in the

following paragraph of this Article as a subject matter of an Act of Parliament, and the condition

for the transfer and recall of the powers delegated. If you combine (b) and (c) is what we have as

(c). Is it okay?

Commissioners: Yes.

Com. Wanjiku Kabira: Now, we go to (d) and check 272 (1) (j), “generally may make

provision for carrying out or giving effect to provisions of this Chapter.” We are saying, “the

manner of election or appointment of persons to and their removal from office is (?)

including the qualifications of voters and candidates.”

Com. Mutakha Kangu: And 265, which we have been looking at.

Com. Wanjiku Kabira: Yeah, the one we have been looking at.

Com. Mutakha Kangu: Then (e).

Com. Wanjiku Kabira: Okay. Now, (e), “the procedures of assemblies, councils, executive

committees including the chairing and frequencies”, that one is a reflection of 257, 258 and 259

again of the other Draft.

Com. Mutakha Kangu: And then (f).

Com. Kavetsa Adagala: You know you have to say-- (Inaudible).

Com. Charles Maranga: We are tired.


Com. Wanjiku Kabira: No. 26th , we are only dealing with two drafts.

Com. Kavetsa Adagala: But you know you have to say (Inaudible).

Com. Wanjiku Kabira: Again, okay.

Com. Charles Maranga: Chair, let us adjourn.

Com. Wanjiku Kabira: No, not yet.

Com. Mutakha Kangu: I have overruled Maranga. Can we continue?

Com. Wanjiku Kabira: Maranga, you are overruled.

Com. Mohammed Swazuri: You can overrule Maranga but we are hungry and when we are

hungry we are going to get angry.

Com. Wanjiku Kabira: You are going to get angry when you are hungry. Okay. Do you want

us to look at those provisions?

Com. Mutakha Kangu: Let us finish this Article then.

Com. Wanjiku Kabira: We finish this? Okay. We are not happy with (e)?

Com. Abdirizak Nunow: Mr. Chairman, (?)the door, why does he not come in

so that people do not have to go out. Let the lunch come in and we eat as we talk.

Com. Mutakha Kangu: Ask them but my question is this. We had thought that we could have

finished and then you take your lunch and we break and then we can continue tomorrow.


Com. Kavetsa Adagala: Let me tell you, Kangu, continuing can take another one and a half

hour--

Com. Mutakha Kangu: Which is good.

Com. Kavetsa Adagala: --so let us eat and work.


Com. Wanjiku Kabira: Can we begin by completing the 230? There are only one or two

provisions.

Com. Mutakha Kangu: And then you can have the lunch.

Com. Wanjiku Kabira: We can take the lunch and continue working. I think that is what

Kavetsa is saying. Now, this is from the people, from Kavetsa.

Com. Kavetsa Adagala: Endelea, endelea.


Com. Mutakha Kangu: Let us finish that Article before you take your lunch.

Com. Wanjiku Kabira: Okay. Let me do this. I go back to 230 sub-article (1) (e), “the

procedure of assemblies councils and executive committees…” and so on. If you look at 257 of

26th. Then 258 is covered by that. We are trying to look for the mothers of these provisions and

then 259 on decisions. So, we are saying that all those ones are put together to form (1) (e). Is

that okay? We go to the next page. We have a problem with (f), “the suspension of assemblies,

councils and executive committees”. We had a problem with this one because we had-- Where

is ours for the suspension? Okay. Now, 270 of the old Draft, we had provided for suspension of

regional district governments and we thought that to avoid creating a law that will suspend either

the district council or the regional assembly and is not controlled by the Constitution, may be a

dangerous precedent and if you look at 271 (2), (3) and (4), we had in detail described how you


suspend the district governments and so on. So we think the district governments-- And we

think we should retain it because (f) is not capturing what we had provided for in Article 270

unless we can be given a better explanation.

Com. Mutakha Kangu: Are we together on that? Are you in support?

Com. Mohammed Swazuri: We are together, Mr. Chairman, and my own opinion from what

Wanjiku is saying is that (f) could be dangerous.


Com. Mohammed Swazuri: Okay. Because the National Assembly can just sit and in the first

sitting pass a law and in a minute they are not there so I think we want to first of all say that (f) is

new. We did not have it and the spirit of what is in 270 has been lost and we need it back.


Com. Kavetsa Adagala: (f) will take us right back. Well, in 63’s some things existed but the

agony of the history we went through in the 60s and 70s and I do not think we want to reinstate

that. It may work very well somewhere else but we have to make sure that that history does not

repeat itself and Nyegenye would do that.

Com. Mutakha Kangu: Nyegenye, you want to say something?

Jeremiah Nyegenye: Mr. Chairman, while there may be a lot of merit and probably the way to

go is to restore it as you have said, I just want to allay the fear that there is a danger-- I do not

think that there is a danger of any grave violence coming from the omission of it because, any

such legislation would probably be even more favourable than we have here because it would

have to have the approval of the Senate itself for it to pass. So, there would not be that danger.

Com. Mutakha Kangu: Yes, Nunow.


Com. Abdirizak Nunow: Mr. Chairman, I think the spirit of Article 270 has really been

watered down in my opinion because what this provision does is to lay down the machinery and

the procedure for suspending a council. And it talks about the involvement of the Senate

authorizing it even after suspension has been sanctioned. But that has also to be preceded by the

formation of independence commission to inquire into the conduct of a particular council. That

creates a lot of rigidity to safe guard and protect the council that are going to have a lot of

teething problems and if they do not have constitutional protection, they will not see the light of

day. So, Article 270 ought to be reinstated.

Com. Mutakha Kangu: Kavetsa, you want to clarify again?

Com. Kavetsa Adagala: I want some clarification. It says, “regional district government may

be suspended” by whom?


Com. Kavetsa Adagala: I am talking about 270, “suspension of regional or district

government”, 270 (1), “a regional or district government may be suspended.” It is not making

any reference to Parliament. In the one of the 23rd, there is Parliament like Nyegenye said. What

did you have in mind when you were discussing it as the Committee?

Com. Mutakha Kangu: The point is that you may reach a point when a particular devolved

government may not be performing, it may have become very outrageous in its activities, serious

allegations have been made against them and we are saying, whereas there may be need to

suspend such a government so that the people get services, we also do not want to take such a

drastic measure as to deny the people their right to elect their own government. You have the

experience of our country where a local authority would be dissolved and a commission put in

place.

Com. Kavetsa Adagala: That we know very well.


Com. Mutakha Kangu: Now, if you read through the whole Article you see a long procedure

there that will tell you who will do what at what point.

Com. Wanjiku Kabira: I think her question is not answered in terms of who initiates the

procedures for this suspension so we can note that.

Com. Mutakha Kangu: You see sub-article (2) says, “a regional or district government shall

not be suspended under clause (1) (b) unless an independent commission of inquiry has

investigated the allegations against it, the President is satisfied that the allegations are justified

and the Senate has authorized the suspension.” Of course the question is, who initiates the idea

of the Commission being established? Yes, Maranga.

Com. Charles Maranga: Chair, if you read this Article, whoever who is carrying out the

functions of an emergency which I think is Parliament and the President finally declares the state

of emergency in consultation with Parliament, then I think this thing can easily be initiated by

Parliament but it is not expressly provided and we need to note that. But I think this entire

Article is important to be retained.


Com. Ibrahim Lethome: I think the most we can do maybe to respond to the issue that has

been raised by Commissioner Kavetsa, is just to note but you are talking about an Act of

Parliament here. So, it is expected that those details should go into the Act of Parliament

although if you look at 230 (c), we are talking about those powers. You look at (1) (d), we are

talking about removal from office, so I think it is all there. It will be in the Act of Parliament, it

will be specified by the Act of Parliament who initiates that procedure of suspending a council.

Com. Mutakha Kangu: You know members are saying we reinstate 270. 270 does not make

any reference to an Act of Parliament. I think the best way we should go--

Commissioners: It does.


Com. Mutakha Kangu: Fine. So, let us say that we reinstate 270, we note that it was left out

and captured in (f) but that (f) does not capture everything, and then we also add that there may

be need to improve the 270 by pointing out who initiates the process. So (f) is an addition.

Lethome you were still on the floor, you wanted to say something more?

Com. Ibrahim Lethome: No.


Com. Ibrahim Lethome: I was just wondering.

Com. Wanjiku Kabira: Okay. I am assuming that the column that was proposed and added by

Alice will actually explain what we have been discussing in relation to this particular provision.

The fears that we have been expressing. Now, sub-article (2) is new sub-article (2) of Article

230, the document of 23rd. That one is new and it is just saying, whatever you do in the previous

Article, make sure that you support the principles of devolution and is comprehensive in content,

so I think it is fine. (Laughter).

Com. Mutakha Kangu: No, it is not obvious. You know the tendency of our Parliament has

been that most of the times they give away their work by legislating in very short form by

saying, the Minister shall make regulations, so, they hand over most of their work to the Minister

and then they start crying the Executive has taken over everything. So, sometimes it is good to

say it should be comprehensive. Now, I think at this point it has added value so we verify and

confirm with the note we had on 270 in relation to (f), and then we say that members are

insisting they must have lunch. Yes, Chair.

Com. Abida Ali-Aroni: Kangu, if we are breaking for lunch, the best thing would be to adjourn

this meeting until tomorrow. This afternoon we do not continue with this exercise because there

are committees that strongly requested to be given the afternoon to meet. So, if we are

adjourning now, we adjourn for tomorrow. If members can hold then we conclude your--

Com. Wanjiku Kabira: We can finish because there are just a few provisions.


Com. Abida Ali-Aroni: You can take a biscuit.

Com. Mutakha Kangu: Kavetsa, quickly we dispose off this whether we proceed or we leave

at this point.

Com. Kavetsa Adagala: Is that a question?

Com. Mutakha Kangu: No. You wanted to speak or something else?

Com. Kavetsa Adagala: I wanted to go ahead.

Com. Mutakha Kangu: So, have we decided we finish are there those who hold a different

view?


Com. Mutakha Kangu: So, we proceed?

Com. Kavetsa Adagala: We are not tired of coming back to devolution because that will be our

future lives but Part IV, just give us an over view first of all. Give us an over view because it is a

whole part. Give us an idea of generally what is similar and what is not and then we go to the

particulars.

Com. Wanjiku Kabira: It is not difficult. 231, we have been discussing since morning because

it dealt with qualifications for election and appointments, which were repeated many times in the

Draft and they are covered and we have been discussing it the whole morning. 232 is the same.

We have been discussing it the whole morning referring to it. Now, let us go to the election of

the mayor 233 because this is a new provision in terms of our discussion today. 233 is similar to

240 of the 26th, the one on the election of mayor and deputy mayor of Nairobi. If you look at

240, it just says, “The mayor and deputy mayor of Nairobi shall each be elected in the manner

prescribed by Act of Parliament.” If you look at this one it says, “the manner of voting under


that Article shall be the same as at a by-election for the National Assembly” until relevant

provision is made by an Act of Parliament for the purposes of Article 215. Now what is 215?

Com. Mutakha Kangu: 215 is “election of mayor and deputy mayor of Nairobi.”

Com. Wanjiku Kabira: 215 is election of mayor and deputy mayor of Nairobi, which is the

same as 240, so it is referring to the same. So, the 240 is the same as 215 in 23 rd. But now they

are giving other information, so the manner of voting under that Article which is the one for

Nairobi shall be the same as at by-election for the National Assembly. I leave that one to

Nyegenye and Gicheru. Now, the next sub-article “the residential requirement for the purposes

of that Article is that a person has been resident in the region throughout the period of twelve

months immediately before the date of the election. I do not know whether we have this

special for Nairobi because we have the main provision under 231.

Com. Mutakha Kangu: Can we hear something from Nyegenye and Gicheru?

Jeremiah Nyegenye: Mr. Chairman, the essence of what we tried to do at 233, 234 and 235 is

to enable instant operationalisation of devolution at these levels because the analogous

provisions in the Draft of 26th would have depended for their coming to life on legislation. So, in

the interim, that would have to be covered by transition. The transition either provides for it

expressly or provides for that legislation to be made while suspending this until that legislation

has been made. So, the essence really and when you come to specific mention of 12 months, that

as I explained the last time is unless you-- Because it is to be provided in an Act of Parliament,

in the interim you have to say something otherwise all that would have to wait for legislation but

I see the Chairperson--

Com. Mutakha Kangu: Yes, Abida.

Com. Abida Ali-Aroni: Chair, I do not know whether I am out of order but I am wondering if

we are talking about instant elections, then don’t we need to take this to the Transitional Chapter

because when we have it here, it means that we will be referring to it time and again even after

the elections that we anticipate for purposes of devolution for now.


Com. Mutakha Kangu: Yes. Maranga and then we move on to Kavetsa.

Com. Charles Maranga: Chair, the Articles 233, 234, 235 are transitional provisions. 233,

234, 235, all those are transitional provisions, which really need to go under the transitional

provisions.


Com. Kavetsa Adagala: Unless there is an explanation for it, I am seconding what Maranga is

saying.

Com. Mutakha Kangu: Now, the problem we have is that if you look at 240, the intention was

not to pass a transitional clause. The intention was to provide for how elections in the capital

shall always be held for the mayor. My thinking is that therefore we need to address the clauses

for the Constitution and then deal with transition questions in the Transition Chapter. But if we

say we shift all of them to the transition the way Maranga has said, we will be losing what was in

the body in the Devolution Chapter because it was not meant for transition. Kavetsa.

Com. Kavetsa Adagala: Okay. What we need to do is have a win win situation. Transfer this

to transition because there will have to be a transition because it says until, until, until and retain

for all times. Retain what is in the Draft as the 26th for all times but what we need to do is look at

what is in the Draft of the 26th closely to make sure that it does. I have not looked at it closely.

That is the one of the election of mayor and deputy mayor 240. If it does reflect that, then it is

okay but I would just like to propose that we shift this to Transition.

Com. Mutakha Kangu: Abida.

Com. Abida Ali-Aroni: I wish to second what Kavetsa is saying but I would suggest that we

note and when we go through the Chapter on Transition, then we see where to fit them in if they

have not been captured.


Com. Mutakha Kangu: We note and pend them for reconsideration when we are dealing with

the Chapter on Transition.


Com. Mutakha Kangu: It captures 240 but the phraseology of “until” turns 240 into--

Com. Kavetsa Adagala: 240 does not have “until”.

Com. Mutakha Kangu: It does not have?

Com. Kavetsa Adagala: Yeah. And 215 does not have “until” it is for all times. 215 of 23rd

and 240 of 26th does not have “all times”. So, we just shift this. Is there any difference in

wording Professor Wanjiku?

Com. Wanjiku Kabira: No, they are the same.

Com. Kavetsa Adagala: Okay. Then we put it with Transition.

Com. Mutakha Kangu: So, are we together?


Com. Mutakha Kangu: Secretariat, you can get the summary even without my putting it.

Com. Wanjiku Kabira: That is for 233 the same with 234. Now, there is something new, 234

(b). I do not know, may be we need an explanation. Where did they get 20 percent? Yeah, we

passed the 219 (c), “such number of members from marginalized groups” so we needed to

reconfirm that (d).

(Inaudible comments from the floor).


Com. Mutakha Kangu: Nyegenye, is there anything to say about this percentage?

Jeremiah Nyegenye: Yes, I am sure there will be, Chairman, but I am little jolted again, I am

trying to piece together. It is a scheme. It is a scheme. If you take away something and take it

somewhere, I am set back and I have to try and find out.


(Laughter).

Com. Mutakha Kangu: Find out.


Com. Mutakha Kangu: Maranga, you are out of order. So, what do we do?

Com. Wanjiku Kabira: We are actually looking for 234 (1) (b). It is not a provisional clause.

Com. Kavetsa Adagala. (Inaudible).

Com. Wanjiku Kabira: No, that is not a provisional clause.


Com. Mutakha Kangu: Are we saying that we will revisit them when we are doing Transition?

Commissioners: Yes.

Com. Mutakha Kangu: Secretariat--

Com. Wanjiku Kabira: But I am saying, for it to be transitional, how did we arrive at the

figures? That is the--


Com. Charles Maranga: No, that is what we are saying, we want to know how they progressed.


Com. Mutakha Kangu: So, note that, that you will give us further information next time.


Com. Mohammed Swazuri: Mr. Chairman, which information are you looking for when you

have been told this is a new idea, which was not even passed by the Conference?

Com. Mutakha Kangu: No, no, you see, we are saying it is new, but he is saying, given a little

time he can try and see whether he can find it.

Com. Mohammed Swazuri: But you were there in Devolution, there was no time you talked

about 20%.

Com. Wanjiku Kabira: No, he did.

Com. Mutakha Kangu: No, we didn’t. Then the--

Com. Wanjiku Kabira: 235, we can just pass?


Com. Wanjiku Kabira: No, we haven’t-- In the document? Yeah, okay. We had noted--

Com. Mutakha Kangu: The things we had noted, what would we like to come back to?

Com. Wanjiku Kabira: No, I think most of them have been captured.

Com. Mutakha Kangu: I do not think we have lost anything of substance.


Com. Wanjiku Kabira: The one we have lost, which I think we have been talking about is how

do we fill vacancies.

Com. Mutakha Kangu: Is it under procedures?

Com. Wanjiku Kabira: We dealt with 237. I think we have kind of-- (Laughter). I think it is

okay.

(Inaudible comments and laughter on the floor).

Com. Wanjiku Kabira: By the way, it is not over because--

Com. Mutakha Kangu: We will be pointing out other things on Finance and others.

Com. Kavetsa Adagala: Is that so? Thank you.

Com. Wanjiku Kabira: Finance, Public Service. I think may be what we do--


Com. Wanjiku Kabira: Which one? 237, “Office and procedure of regional legislative

assemblies.”

Com. Mutakha Kangu: Procedures, those are the Speakers, Clerks and procedures under

legislation.

Com. Wanjiku Kabira: Yeah, those ones have been covered. Under 231, 232 – they are

covered there. (Laughter). In 231 and 232. But there are two or three--

Com. Mutakha Kangu: It is our method of work. (Laughter).

Com. Wanjiku Kabira: Our method of work. (Laughter).


A Commissioner: How do you (Inaudible).

Com. Wanjiku Kabira: No, no, no, we have given you two days to discuss-- For the people to--

Com. Mutakha Kangu: Do you think we proceed with this or we finish this tomorrow?

Com. Wanjiku Kabira: My question is whether we should not present Finance so that the

Devolution Articles are raised under Finance rather than now introducing the Articles to Finance.

Com. Mutakha Kangu: What we should do is that when Finance-- Because like when

Legislature was done, we raised what was for Devolution at that stage. So, we say that for the

Devolution matters that fall in Finance, we shall raise them when the Chapter on Finance is

being presented.

Com. Wanjiku Kabira: And also under Public Service.

Com. Mutakha Kangu: Public Service and so on.

Com. Wanjiku Kabira: Yeah, may be that would be better.

Com. Mutakha Kangu: So, for the moment--

Com. Wanjiku Kabira: And transitional, we will also raise it together with Transition.

A Commissioner: Those are the details. Those are administrative matters.


Com. Wanjiku Kabira: No, we were being asked whether we want to have a separate time to

raise this.


Com. Mutakha Kangu: You are saying 266? Just speak up, formalities of law making.

Nyegenye, anything? Is it under procedures, formalities of law making?

Com. Wanjiku Kabira: No, this one is left out for sure. It is not covered.

Com. Mutakha Kangu: And publication of laws.

Com. Wanjiku Kabira: And publication of laws.

Com. Mutakha Kangu: Yes, can you--

Jeremiah Nyegenye: Formalities of law making, my notes show that that should be 230 (1).

(Laughter).

Com. Mutakha Kangu: Eh-huh and--

Com. Wanjiku Kabira: Now, but how is it covered in 230 (1)?

Com. Mutakha Kangu: 230 (1), how--

Com. Wanjiku Kabira: It doesn’t look like it is covered.

Jeremiah Nyegenye: 230 (1) requires Parliament by legislation to “make comprehensive

provision for all matters necessary or convenient to give effect to the Chapter…”.

Com. Wanjiku Kabira: I think in this particular one, the concept of people’s participation in

formulation of laws is not captured.

A Commissioner: So they are missed out.

Com. Mutakha Kangu: So, make a note on that.


Com. Wanjiku Kabira: Yeah, I think so. Thank you, Swazuri.

Com. Mutakha Kangu: And then a note on publication of laws.

Jeremiah Nyegenye: Sorry, Chair. 22-- Mr. Gicheru.

Ndoria Gicheru: Sorry, I thought the question of public participation is captured in Article 228.

Com. Mutakha Kangu: 228 of?

Ndoria Gicheru: 23rd. No, no, Articles 144, 145, apply to the regional legislative assemblies and

the districts, e.t.c. and you are referred to Article 144 and 145 which deal with public

participation.

A Commissioner: Of?

Ndoria Gicheru: Of 23rd. 144, is titled Public access and participation, with regard to

Parliament. Then 145 concerns Powers, privileges, e.t.c. So, as far as participation is concerned it

is covered under 144, because it will apply here the way it applies to Parliament.

Com. Mutakha Kangu: So, that is 228. Yes, Kavetsa.

Com. Kavetsa Adagala: I will object and will always object that you cannot put something for

Parliament and it is also for Devolved Government, without saying so. If these things are

crosscutting, they must say so.

Com. Mutakha Kangu: They have said so, Kavetsa, under 228. Under 228, they are saying so.

Com. Kavetsa Adagala: That it will apply?



Com. Kavetsa Adagala: Yeah, that is okay. But the issue of--

(Laughter).

Com. Mutakha Kangu: So, are we now okay? 268, Conflicts of laws, we had passed it, I think.

We passed it way back. No, when we were at Landmark we passed it, we verified it.

Com. Wanjiku Kabira: 269. What did we do?

Com. Mutakha Kangu: Management of urban areas. We have just been dealing with it a while

ago.

Com. Wanjiku Kabira: We dealt with it.

Com. Mutakha Kangu: Where we were dealing with Nairobi and urban areas. Yes, Kavetsa?

Com. Kavetsa Adagala: What are we on now?

Com. Mutakha Kangu: He was raising 269 on urban areas and we were mentioning.

Com. Kavetsa Adagala: But before we go to 269, there is also 267. It has been covered?

Com. Mutakha Kangu: 267 on publication of laws?

Com. Kavetsa Adagala: Yeah, on page 162 of 26 th .

Com. Mutakha Kangu: Any comment from Gicheru and Nyegenye?

Jeremiah Nyegenye: 267, if you think about it, was a bit cumbersome and not to say that if it

was cumbersome, we decided to do away with it, we tried to think through how to operationalize

267 and eventually thought that it is better to let someone think about it a little more so that it


falls under the legislation that will be made. Because 267 (1), in particular, “A law or

subordinate instrument made by a regional…” bla bla bla, all that. The proliferation of that

would be so shockingly massive and if it did not take effect until it was published in the Gazette,

Gazette means the Kenya Gazette, I do not know.

Com. Mutakha Kangu: So, can we make a note that 267 was left out and the question is

whether we want it back or not and the explanation. Yes, Gicheru.

Ndoria Gicheru: I think it should also be read in conjunction with Article 146, where a registry

of enactments is provided for. It could be that this type of legislation--

Com. Mutakha Kangu: How do we define enactments?


Ndoria Gicheru: No, it is a bit general, the establishment of that registry. The only question is

what was pointed out here, the definition of enactment. Enactment means legislation or

subsidiary legislation, so it does not confine this to Parliament. So, this provision is wide enough

to cover enactments, legislation at lower levels.

Com. Mutakha Kangu: Lower levels.

Ndoria Gicheru: But of course, it is debatable.

Com. Mutakha Kangu: You want to say something, Nyegenye?

Jeremiah Nyegenye: Mr. Chairman, I want to say that Miss. Nyamweya wants to say

something.

(Laughter).

Com. Mutakha Kangu: Nyamweya, say this something.


Pauline Nyamweya: I was just pointing out that that registry does not cure the problem of when

do those laws take effect. So, that still needs to be thought about.

Com. Mutakha Kangu: Publication, may go to when they take effect. Kavetsa, and I think now

we must finish. I am sure you are now getting even more hungry.

Com. Kavetsa Adagala: No, the hunger has gone. It is now famine.

(Laughter).

Com. Kavetsa Adagala: This one may be a good short title for the registry but it really should

have registry of enactments of-- Then it should be that clear. Because, it should not just be

enactments in my view.

Com. Mutakha Kangu: Maranga. We are on 267, let us make a ruling on this and then move

on.

Com. Charles Maranga: Chair, let us note, restore and move forward.

Com. Mutakha Kangu: I think that is a good summary. Secretariat.

Com. Wanjiku Kabira: Can I suggest-- I am just wondering now, over--


Com. Wanjiku Kabira: --you know, Kenya Gazette, was it Nyegenye or Gicheru who said,

Kenya Gazette means the Kenya Gazette? Can we put it under the definition of terms? So, we

can have district gazettes and regional gazettes if we are talking about publication.



Com. Wanjiku Kabira: I think Nyegenye talked about-- I thought he talked about--

Com. Mutakha Kangu: Let us do this.

Com. Wanjiku Kabira: He talked about the implications. So, we do not have to publish here,

you know, all the time.

Com. Mutakha Kangu: Let us do this. Let me make this ruling and I think it will help. That we

note that 267 has been omitted, the explanation is that part of it may be covered under 246 but

we still note that when the laws take effect it does not come out under 146, the way Nyamweya

said. So that those looking at it can be able to see what value to get from the 267 to make sure

that publication takes effect.


Com. Mutakha Kangu: I think that can finish with our work. Isn’t it?

Commissioners: Yes.


Com. Wanjiku Kabira: By the way, this discussion also took place in the Committees. You

know whether you have to wait for the Kenya Gazette as we know it or whether the districts can

be able to publish their own--

Com. Kavetsa Adagala: Their work.

Com. Wanjiku Kabira: Yeah. So, devolving even the power to--

Com. Mohammed Swazuri: Can I give you an information? In Ethiopia, we found out that each

region has its own Kenya Gazette.

(Laughter).


Com. Wanjiku Kabira: Exactly.

Com. Mutakha Kangu: Not Ethiopian Gazette?

Com. Kavetsa Adagala: Can I say something, Chair?

Com. Mutakha Kangu: Hoping it is not reopening but--

Com. Kavetsa Adagala: Not reopening, but actually, here it is just that it is like we are thinking

in an old mold. So, the Kenya Gazette should be devolved. But how do other districts know

about this? They would look for it if something is happening in a district?

Com. Mutakha Kangu: I think the point will be that if you have district gazettes, then they will

be transmitted to the Registry of laws and those who are looking for these laws from all corners

of the country should be able to access them in the registry of laws. I hope that will be able to

cure that. So, are we-- Yes, Wanjiku.

Com. Wanjiku Kabira: No, no, I am not saying anything, I was switching it off.

Com. Mutakha Kangu: Can we at this point be privileged to thank the members for their very

dedicated performance in this particular session. Chair, when do we reconvene tomorrow?

Com. Abida Ali-Aroni: 9 o’clock.

Com. Mutakha Kangu: Now, this lunch, is it me to invite these members to it or can I take

credit?

Com. Abida Ali-Aroni: I have appointed, delegated, devolution.

Com. Mutakha Kangu: May I be privileged to invite all participants to the Devolution Chapter

to lunch? We worked it out with Wanjiku and you will thank us for it. (Laughter).


Com. Wanjiku Kabira: No, we said people must eat. (Laughter).

Com. Mohammed Swazuri: Point of Procedure.


Com. Mohammed Swazuri: I am just saying that this Chapter has been done in kind of some

pressure towards finishing, but I know it is a very important Chapter and I suspect we might have

overlooked one or two things. So, the two Rapporteurs can assist us in making sure that the two

Drafts actually march each other.

Com. Mutakha Kangu: Now, we get the point. The truth of the matter is that we looked at this

Chapter ourselves and when we did, I think it was before the approach to the verification had

been taken. Our approach was that, let us confirm what is there. Let us confirm what is left and

see, of that that is left out, can we live with it or is too much lost? I think a lot of the things we

had said, even though this is left out, the greater part of the principle is there, but we note what

you have said, it is important. We shall continue because when we come back to Finance, we

shall still be looking at certain aspects of Devolution. So, if we notice anything that we may have

missed out on what we have dealt with, I think we will bring it to your attention.

Com. Wanjiku Kabira: Maybe in addition, there were at least three or four main issues which

we thought needed to be reinstated and you have reinstated them. But like Kangu says, the

discussion is not over until we go to Finance and we will raise the issues that are not covered.

But I also agree with Swazuri that some small sub-articles could be left out and have significant

implication. So, we should go through it again.

Com. Mutakha Kangu: We shall continue.

A Commissioner: Do not add.

Com. Wanjiku Kabira: We will just be reinstating.


Com. Mutakha Kangu: Thank you.

The meeting adjourned at 2.05 p.m.

&&&&&&&&&&&&&&&&&&&&


katibainstitute.orgkatibainstitute.org/Archives/images/CKRC/CK/Verification Proc...

Documents

Transcript of katibainstitute.orgkatibainstitute.org/Archives/images/CKRC/CK/Verification Proc...