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Constitution of Kenya Review Commission |
By Julius Kipngetich Lecturer Department Of Management Science Faculty Of Commerce University Of Nairobi
12-09-2001
1. INTRODUCTION
1.1 Background of Kenya
Kenya's history dates back to many centuries, from the late stone age, to the early migrations and settlements of various groups among them the Nilotes, the Bantus, the Arabs, the Portuguese, the early missionaries and so on.
The Nilotes came from the north along the Nile and entered present day Kenya through Ethiopia and Lake Turkana about 1000 AD. The Bantus came to Kenya in two different directions; namely through Uganda and Central Tanzania in the 15th Century. The Cushites migrated from the Ethiopia highlands to Northern, Central and Eastern Kenya. By 10th Century they had reached the Indian Ocean Coast and lived around Mogadishu. By 19th Century they were firmly settled in Kenya.
In all these groups, clans, age-sets and age grades formed the basis of government. Government in most traditional Kenyan societies was by Councils of Elders. Some were ruled by chiefs, for example, the Luyia of Wanga had a ruler known as Nabongo and it was hereditary. The Luo had councils called buch piny. The Gusii had chiefs who were called Omugambi. The Maasai and Nandi greatly valued religious leaders for example Koitalel arap Samoei the Orkoiyot of the Nandi who led the people in resistance to the British rule from 1896 to 1905 and ole Lenana among the Maasai. Most of the people in Kenya speak their own tribal languages and there are 42 of them in Kenya. The current Constitution guarantees the freedom of worship and freedom of assembly. The top ten tribes in Kenya in percentage terms are:
Group %
Kikuyu 20.78
Luhya 14.38
Luo 12.38
Kalenjin 11.46
Kamba 11.42
Kisii 6.15
Meru 5.07
Mijikenda 4.70
Maasai 1.76
Turkana 1.32
The mainstay of the economy is agriculture and contributes 1/3 of the GDP but employs about 70% of the workforce. Tourism is also a major foreign exchange earner and this is around the Coast and the National Parks and Reserves. The state of infrastructural development is poor. For example 8% of Kenyans have access to electricity compared to 60% in South Africa.
Rural life is difficult and mainly depends subsistence farming and on incomes of urban dwellers who constitute 25% of the population. As such there is a very high dependency ratio. 47% of Kenya's GDP is concentrated in Nairobi making Kenya have the second worst income disparity in the world after Brazil. The structure of Kenya's economy on a population basis is thus:
6% - Formal
21% - Informal
73% - Subsistence/Rural.
Kenya's GDP is $280 per person per year compared to an average of $460 for sub-Sahara and a world average of $4,470. Kenya is the 17th Poorest Country in the world.
1.2 Meaning of Devolution of Power
According to the Oxford dictionary, devolution is the delegation by central government to local or regional administration; a descent or passing on through a series of stages.
Therefore, it entails the transfer of political authority to make decisions in some sphere of public policy from the central government to local governments or similar units at the local level. Decentralization implies that the centre delegates certain tasks or duties to the outlying bits while the centre remains in overall control. The centre does the delegating, initiates and directs. Some literature on devolution of power have argued for reverse thrust organizations, where the initiative, the drive and the energy comes mostly from the local units and the centre takes a relatively low profile. Switzerland is a good example of this principle at work; a country both peaceful and prosperous.
It is easy, in logic; to think of the centre taking the long-term decisions and leaving the implementation to the parts. That logic, however, seeks of the old language of management of delegation of tasks and controls. The new concept of devolution of power requires the centre to act on behalf of the parts. In political terms, the centre becomes an assembly of chiefs acting in that place and time on behalf of the total country, then returning to their own units to do their own bit for the whole.
Running the centre is not therefore the job for a monarch, overarching authority or autocratic government. Isamu Yamashita of Mitsui Corporation in Japan said this about the role of the centre, "the best corporate structure today comprises a small strategic centre supported by many front-
line outfits; we need compete outside but collaborate within ".
1.3 Subsidiarity and Inverted Doughnut
The philosophy of devolution is characterized by the word 'subsidiarity'. It was first enunciated by Pope Leo XIII but later recalled in a papal encyclical 'Quadragesimo Anno' in 1941 and it holds that it is an injustice, a grave evil and a disturbance of right order for a large and higher organization to arrogate to itself functions which can be performed efficiently by smaller and lower bodies. To steal people's decisions is therefore wrong. To be effective, therefore, devolution requires a positive will to trust and enable a willingness to be trusted and enabled, a moral act-subsidiarity.
An alternative analogy is that of the inverted doughnut. To have a large doughnut the centre must be made smaller. Therefore the devolved units have a few core requirements spelled out and have a lot of discretion in activities of the unit they lead.
1.4 Devolution of Power and Democratisation of the State
Democracy as espoused by Abraham Lincoln is the rule of the people, by the people and for the people. It therefore means that all who are affected by a decision should have the chance to participate in the making of that decision either directly or through chosen representatives and thus the will of the majority should prevail.
In countries where civil society is strong, well knit and inclusive, the system based on majoritarian democracy may not produce adverse results on an excessive scale. Even in political sphere, when the decisions are taken by the majority, the minority interests will be taken into account because of the strength of the civil society and the prevailing democratic culture. However, in a multi-ethnic, pluralist society like Kenya, with the state playing a dominant role, majoritarian democracy may not be democratic at all. As Arthur Lewis put it "translated from class to a plural society, this view of politics is not just irrelevant; it is totally immoral, inconsistent with the primary meaning of democracy and destructive of any prospect of building a nation in which different people might live together in harmony...In a plural society, the approach to politics as a zero-sum game is immoral and impracticable"
It is therefore necessary to create political institutions and to restructure government ensuring that those who are affected by a decision get a fair chance to participate in the decision making process. Experience in Asia, Africa, former USSR and Yugoslavia teaches us that the failure of democracy was as a result of politics of inclusion and exclusion along ethnic lines where the minority are excluded from the decision making process.
The right to vote is a basic tenet of democracy but as Prof. Lani Guiner of University of Pennsylvania Law School observes, "those who interpret the act narrowly theorise that if you can vote, you are enfranchised and you are therefore politically equal to every other voter. The problem is that no one votes purely for symbolic reasons ...Voting is also an instrumental activity, not just a symbolic one. People do not vote just to feel good about themselves, they vote in addition because they want to influence who gets elected...Democracy means not only the ability to cast a ballot, but the ability to cast a ballot that leads to the election of a representative, and then the ability of that representative to have some fair chance of influencing legislative policy".
A very interesting emerging devolution of power is in Sri Lanka. The new constitution proposes to establish a decentralized state by creating a number of provincial governments. These provincial governments have exclusive power to make laws on 43 devolved subjects and execute them. This power is not granted to the provincial governments by the central government but will be derived from the constitution. The central government and the provincial government are coordinate and not subordinate to each other. The exclusion of Tamils from the law making process is partly overcome by the setting up of the provincial autonomous administration.
1.5 Positive outcome of Devolution of Power.
One key outcome of devolution of power is evolution of a community-owned government. The basic idea it to make the public responsible members of the community rather than big government lording over the same community. Citizens are people who understand their own problems in their own terms. People who are dependent upon and are controlled by big government wait for others to act on their behalf. The major contrasts between big government and community-based government are:
• Communities have commitment to their members than big governments.
• Communities understand their problem better than bureaucrats in government.
• Bureaucracies deliver services; communities solve problems.
• Bureaucracies offer service; communities offer care.
• Communities are more flexible and creative than large bureaucracies
• Communities enforce standards of behavior more effectively than bureaucracies.
• Communities focus on capacities, bureaucracies focus on deficiencies.
• Communities are cheaper to run than bureaucracies.
Devolution of power therefore is designed to create a political environment in which power to access political, economical and social resources is distributed between the central government and lower levels of government. State authority is spread among a wide array of actors, making politics less threatening and therefore encouraging joint problem solving. Devolution creates a fairer political ground, protects group and individual human rights, establishes checks and balances to central power, avoids winner-take-all political competition and prevents political violence among rival groups.
Devolution will help deter a state's internal use of coercive power against political opposition through formal recognition of the legitimacy of ethno-
regional claims to power, which encourages moderate behavior, easing tensions and possible resort to violence and secessionist activities. By dispensing limited powers to lower levels of government, devolution schemes will reduce conflict by giving current and prospective leaders at lower levels greater power and incentives to cooperate.
2. ETHNICITY AND CONFLICT IN AFRICA
The euphoric hopes that accompanied Africa's independence in the early 60's have, so far, proved to be largely a cruel mirage for many Africans, including a large majority of Kenyans, 55% who now live below the poverty line of less than a dollar per day.
During the decade of the 1980's alone, it is estimated that conflict and violence claimed over 3 million lives in Africa. Since 1960, 19 full-
fledged civil wars have been fought in Africa. At the beginning of 1990, Africans accounted for 43% of the global population of refugees, most of these fleeing from political violence.
The most popular and enduring perspective on the sources of conflicts is Africa is the contention that ethnicity per se constitutes the critical, if not the determinant, source of conflict on the continent. After independence, African leaders declared 'tribalism' as divisive and the primary source of conflicts and that the remedy was the monolithic political party. Authoritarianism, they claimed was a necessary mechanism to hold together a society which would otherwise fly apart and to promote conditions conducive for integration, political consolidation and development.
Ethnic heterogeneity does not on its own produce conflict, nor is socio-
political pluralism absolutely incompatible with responsive governance and democratic practice. As Francis M. Deng, the UN Secretary General Representative for Internally Displaced Persons in 1992 deplored that; "Africa has cornered itself into rejecting ethnicity as an organizing concept in the process of nation-building: the challenge then is whether it is possible to reverse the mindset so that ethnic groups which are African realities, could be seen in reverse light as resources or building blocks that can provide a sound foundation for sustainable political and socio-
economic development from within ".
Chief Emeka Anyaoku, the former Secretary General of the Commonwealth expressed the following sentiments:
"There was a time when some of us were idealistic enough to think it is possible to wish away essential differences between the component ethnic groups of our country and mould a truly united Nigeria out of it without taking account of its plurality. But experience in Nigeria and in many other countries shows that this is neither possible nor indeed desirable. It shows further that for national unity to become truly nurtured beyond the limits of rhetoric and realized in a way that generates genuine patriotism among the citizens there has to be a minimum of openness and accountability in the governance system...It should also mean a democratic government that recognizes the importance of reaching out...for consensus among the significant component units of a pluralistic society"
Contrary to commonly held impressions, envy, resentment and fear of other ethnic groups is not inequitable distribution of national wealth and authoritative positions which precipitates internal conflicts; the issue at stake invariably devolves on the processes by which resources are allocated, and these processes relate to such needs as recognition, identity and participation. The process may be more important than the actual allocation; and the process is a political issue.
2.1 The need for a new management paradigm for Africa and Kenya
Whereas the individual is responsive to opportunities for improvement in lifestyle and malleable, there is no malleability in acceptance of denial of ontological needs such as security, recognition, participation, autonomy and dignity. Therefore, any political system that denies or suppresses these human needs must eventually generate protest and conflict. The late Chief Obafemi Awolowo said this about Nigeria in 1947, "Nigeria is not a nation...It is a mere geographical expression.. .There are no 'Nigerians' in the same sense as there are 'Englishmen' or 'Welsh' or 'French'. The word 'Nigeria' is merely a distinctive appellation to distinguish those who live within Nigeria from those who do not". This can be said for many African countries including Kenya and therein lies the challenge of ethnicity.
Ethnic ties override loyalty to the state because while at the local level in most African states, there is still a deep sense of belonging to a community based on and nurtured by kinship, there is no parallel to such modes at the state level. A fine web of kinship in the traditional African society has not been usurped or even duplicated, within the balance of perceived legitimate authority, which it has failed to earn. Ethnic groups therefore find themselves trapped in an oppressive, predatory condition in a colonial inheritance of a polity they did not bargain/or or underwrite.
The introduction of electoral processes leads to power defining phenomenon of ethnicity that further embitters the relations among various ethnic groups. The two social forces that operate at the core of politics in Africa are ethnic groups and political parties. In the absence of widely held and strongly felt ideologies, ethnicity provides the focus for "party" loyalty. The salience of ethnicity in competitive politics creates an ascriptive majority-minority problem where elections more or less become a census of the adult population.
Ethnic parties develop and contest extremely divisive elections, the ethnic group with the largest population takes power in the majoritarian electoral system; and a feeling of permanent exclusion is provided on the part of those who are locked out of office by accident of birth. The question therefore is how do diverse peoples with distinct political cultures, and often with negative, bitter memories and images, live amicably in a polity of an alien political system? There is therefore the need for democratic elections to be sustainable and helpful in ethnically divided societies. Prudent and responsive electoral, administrative and/or territorial arrangements will have to be crafted to build the confidence of each group in the political system
2.2 Devolution of power as a strategic response to ethnic conflicts
The fundamental challenge Africa faces as it strives to eliminate destructive ethnic conflicts is to change the popular mindset, which view ethnicity as some pathological societal conditions with backward atavistic roots, to be cured with an enlightened dosage from the medicine cabinet of modernization. An understanding is needed of the fact that the conflicts resulting from ethnicity are primarily attributable to two factors; universal, basic human needs for group identity, security, recognition, participation and a sense of an empowering level of autonomy, and the absence of appropriate policies and institutions of political and economic systems that would enable the attainment of these needs.
The structural measures this paper proposes to deal with these issues include:
•Decentralization and devolution of governmental authority and responsibilities
•Benign processes of integration, guided through conducive policies and facilitating Conditions with less emphasis on coercion.
•Innovative electoral arrangements that avoid tyranny of the majority.
A healthy system of ethnic relations also needs a sound policy on public education and culture. Many conflicts are sustained by stereotypes, myths or prejudices that have been fed into discourse at household, neighborhood or national levels. Some measure to deal with this issue may include:
• Establish special unity schools that admit pupils from a cross-section of ethnic groups e.g. current national schools.
• Develop national youth service programs that oblige participants to service in regions oilier than their own.
• Guarantee freedom of passage to travelers in unfamiliar territories.
• Share joking relations to tease or swear at each other in public. Humor helps to tame differences and allows for some level of understanding between groups.
3. COUNTRY EXPERIENCES ON DEVOLUTION OF POWER
3.1 Canada
When Canada was founded in 1867, the framers of the country's first constitution believed that if the provinces were given exclusive jurisdiction over education and the French language was afforded special constitutional protections, no other steps were needed to safeguard Quebec's unique heritage. In 1960 Quebec began to question whether the traditional division of powers between the federal and provincial governments gave Quebec sufficient jurisdiction of carry out its mission. It concluded that it did not and began a quest for more power that virtually every Quebec government has since continued.
In the 1960's and the 1970's more and more English-speaking Canadians demanded a change in their relationship with their government. They began to push for a constitutionally entrenched charter of rights. For Quebecers, the key question is not whether they have a constitutionally entrenched charter, but who will control the enforcement of charter rights. The hostility arose from the fact that the arbiter is the Supreme Court of Canada, which is appointed by the federal government and will always have a majority of English-speaking Canadians among its judges.
Quebecers view Canada as a nation of collectives defined primarily by language. The French collectivity lives primarily in one province - Quebec and the English collectivity controls nine provinces out of ten, and by nature of its majority status controls the federal government and all its institutions. This lead directly to the conclusion that Quebec needs special powers to defend itself and cannot be subject to the dictates of institutions representing the collective power of the English.
The English-speaking Canadians conceive of Canada as a nation of individual citizens who are equal before the law regardless of language their forebears spoke and who live in a federation of provinces with equal constitutional status.
The competing views between Quebecers and the rest of Canada reflect the challenge to each others sovereignty. The process of devolving power to the regions entails two independent yet related aspects. The first is a constitutionally guaranteed territorially defined unit and the second aspect defines the powers that we assigned to the unit. Conflicts can arise from questions relating to either of these aspects. Issues can arise where the existing powers assigned to the regions are found inadequate to yield preferred outcomes, at which point, the territorial unit is used as a lever, by threats of secession, to seek the desired advantages.
3.2 United Kingdom
Since 1998, the constitutional structure of the United Kingdom (UK) has undergone dramatic changes. Through the process of devolution, certain powers formally vested in the UK parliament have been transferred to new legislative bodies located in Scotland, Wales and Northern Ireland. Attempts to provide these regions with degrees of legislative autonomy have existed in various forms since the 19th Century, but the present Labour government has been the first government to succeed in providing all these regions with home rule.
One key lesson from this devolution is that the provisions for each region need not be identical. The Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998 have differing degrees of home-rule. Wales for example has no primary legislation authority granted. The Scottish Parliament is unicameral; to deal with delegated legislation comprised of the rules, regulations, orders and bylaws. The Scottish Executive is comprised of the First Minister, Ministers, the Lord Advocate and the Solicitor General. They can only make laws on matters that are within its devolved competence as defined by Section 54 of the Act.
The Government of Wales Act 1998 was the result of dissolution in the principality during the last administration of the Conservative Party. Following the 1997 election, the Labour Government released the White Paper, A Voice for Wales: The government's proposals for a Welsh Assembly in which it recommended that executive, not legislative, powers be devolved to the principality. A referendum held on September 18th 1997 saw the Welsh vote in favour of this proposal by a slim margin of 50.3%. The assembly does not have primary law making authority and has executive powers in tourism, culture, ancient monuments, highways, health, education, transportation, agriculture, environment, sports, water and Welsh language. Although this devolution was largely symbolic, for the first time in over 700 years the country of Wales has an elected body located within its borders capable of developing and implementing policies for the people of Wales. The assembly is comprised of 60 members led by the First Secretary and a Cabinet.
The process of devolution for Northern Ireland has been in a far more complex and fragile process than that experienced in Scotland and Wales. Northern Ireland had experienced home-rule between 1921 and 1972, when the British government declared an end to home rule and instituted direct rule from Westminister. The parliament was perceived as a body more representative of the Unionists' interests than the Catholics. In 1973 a second attempt at devolution was made with the creation of the first Northern Ireland Assembly but it lasted only five months as a result of increased sectarian violence. Negotiations have been going on regarding home rule and in 1998 there was a breakthrough with signing of the Belfast Agreement (Good Friday Agreement).
The Northern Ireland Act 1998 delineates between the following powers:
• Transferred — defines scope of assembly powers
• Entrenched — Human rights, EU matters and basic constitutional documents can be altered by the assembly
• Excepted - outside the legislative competence of the assembly
• Reserved matters — within the competence of the assembly but can only be legislated on with the consent of Secretary of State for Northern Ireland.
The Northern Ireland Assembly has since been suspended again this year following the resignation of David Trimble as First Minister over the failure of the IRA to surrender weapons as agreed.
The existence of these assemblies in UK, however, falls short of a federal system of government compared, say, to USA and Canada. Although England, Scotland and Wales see themselves as separate nations with their own flags, football teams, newspapers and electronic media, and their own distinct cultures; all three are united by a common language although there is a sizeable Welsh minority who speak Celtic language and a Scottish minority who speak Gaelic. Anyone who has crossed the England-Scotland border can be in no doubt they are in a separate country. The Scots have a distinct accent while the hauntingly beautiful landscape and granite architecture are quite distinct from England. The contrasts between England and Wales are less clear but a visitor quickly notices that it is poorer than England. Many Britons worry that the Scottish nationalists will use the Edinburgh parliament as a stepping stone to full independence, and the main contentious issue is over allocation of resources.
3.3 Pakistan
The institutional crisis in Pakistan has a lot of resemblance to the political situation in Kenya. The political system has deteriorated as a result of horse-trading and cronyism, the politics of postings and transfers in the bureaucracy, and corruption. Political leaders have run their parties as fiefdoms, shirking democratic process and basing loyalty on political favours and kickbacks rather than commitment to democratic laws and principles.
The administrative system is based on colonial ethos of control rather than service and has systematically been used as an instrument of political victimization and vendetta. Peoples' rights have been sacrificed on the altar of political expediency and participation has been reduced to decreasing voter turn out, apathy, mistrust and disgust. Instead of urbanization of rural areas, Pakistan has had an opposite effect of ruralisation of urban areas.
The military government is now trying a new approach of District government which they believe utilizes a bottom-up methodology, is people-centered, responsibility based and customer service-oriented.
The president's strategy includes:
• Devolution of power for genuine empowerment of citizens
• Decentralization of administrative authority
• Deconcentration of professional functions
• Diffusion of power for checks and balances to preclude autocracy
• Distribution of resources to the provincial and local level
Following this strategy, a fully fledged district government as the basic governance and development unit of the country and Citizen Community Boards at the grassroots level are proposed, creating an enabling environment for massive peoples involvement in civic affairs through the close monitoring of services, rights and security.
The structures to support this strategy were local level structures are:
Union councils - representing small cities and towns on a 50-50 basis for male
and female.
Citizens Community Boards - these are monitoring committees for hospitals,
schools, colleges, infrastructure etc.
Village Councils - Union Council members of a particular village constitute this
Committee and works closely with the Citizen Community Boards.
The Union Councilors have judicial functions to resolve local disputes speedily through alternative dispute resolution mechanisms.
The district government will be formed of the District Assembly, a directly elected Chief Mayor and Deputy Chief Mayor who will contest as joint candidates, a district administration and police. The Chief mayor heads the district administration. The District Assembly constitutes all chairmen of union councils, plus additional 20% female members and 5% peasants elected indirectly by Union Councillors of each Tehsil. The Deputy Chief Mayor is the speaker of the district assembly. It will also ratify the appointment of district officers made by the chief mayor. Legislative functions are limited to creating new taxes, bylaws, rules and district budget.
The District Administration is headed by the chief mayor and coordinated by a District Coordinator Officer. A District Officer will head each department (13 of them). Each district is expected to adopt corporate governance principles and have an entrepreneurial approach. Tehsil Councils has two main functions; provision of municipal services under the control of the mayor and coordinating the monitoring of the District govemment functionaries at the Tehsil level.
The District Police maintains law and order and is a provincial subject but the chief mayor selects the District Police head from a panel. Investigation and prosecution is done by another arm of the police under the District Officer, Law. The target is to have 90% of court cases to be completed within the District by enhancing the jurisdiction of the district judge, establishment of small causes courts at Tehsil level, introduction of family and women's courts, and withdrawal of judicial powers from administrative agencies. Public Safety and Justice Committees to undertake citizen monitoring of police and judicial activities.
It is important to note that India is also in the process of devolution of power to the Panchayats- Village Councils. Karnataka governor, Rama Devi said reconstruction of villages was important in the country as the 'heart and soul' of India lived in villages. She said democracy should start from village level and panchayats were the main units from where it should grow up to Parliament level.
3.4 Finland
Aland province of Finland enjoys a special arrangement with the rest of the country. Finland remained under Swedish rule for about 600 years, from the 13th to the 19th century, but instead of being a colony, was considered an equal partner with the other provinces of Sweden. During this period, Swedish had become the sole language of Finland and its political, social, legal and educational institutions developed along the Swedish patterns. In 1809, a defeated Sweden ceded Finland to Russia under whom Finland came to enjoy extensive autonomy. The result was the emergence of a national identity along with Finnish as a language. In 1863 both Finnish and Swedish were equal in status.
After Finland gained independence from Russia, the people who inhabited the islands of Aland, who were descendants of Swedish settlers wanted a union with Sweden. But in 1921 the League of Nations ruled that Finland would retain sovereignty over the province. The Alanders refused to accept the autonomy act but the ruling of the League of Nations was so strong. The result was that Finland had to allow extensive powers of autonomy the Alanders without allowing it to become an independent state in order to retain these islands within the sovereignty of Finland. In spite of these unique arrangements and by virtue of their history, a group of Alanders even today want to be completely free of Finnish rule.
Horowitz said this about this devolution "Proposals for devolution abound, but more often than not devolution agreements are difficult to reach and, once reached, soon abort. Most such agreements are concluded against a background of secessionist welfare or terrorist violence. Where central authority is secure, as in India, the appropriate decisions can be made and implemented by the centre. But, where the very question is how far the writ of the centre will run, devolution is a matter of bilateral agreement, and an enduring agreement is an elusive thing".
4. PROPOSALS FOR DEVOLUTION OF POWER IN KENYA
It is of utmost importance to replace an outdated political system to suit the contemporary political and social constraints of a country. In the genuine attempt at nation building, at this juncture, all Kenyans have to shed communalism and to think as Kenyans. The rights and privileges of all communities of Kenya have to be safeguarded. As we review our constitution, devolution of power among the communities living in the country could be considered as enhancing our nationhood.
4.1.1 At District Level
• Have the District as basic governance unit
• Dissolution of the provincial administration institutions
• Restructuring of the current rural local authorities systems as follows:
* Establishment of sub-location/village councils headed by a Sheriff
* Establishment of Divisional Council along the lines of the current constituencies headed by Chief Councilor
* Establishment of the District Assembly head by Mayor
* The executive officer will be the District Officer appointed by the council reporting to the Mayor
• Restructuring of the current urban local authorities as follows:
Capital City
* Enact special legislation for the Capital City, Nairobi along the lines of London and Washington DC
* Establish a divisional council along the constituency boundaries as the basic operational unit
* Give recognition to residents' associations as the equivalent of village/sub-location council in the rural setup.
Current Municipalities, Town and Urban Councils
* Multi-constituency municipalities to have divisional council along the current constituency boundaries as the basic operational unit.
* Single constituency municipalities to serve as basic operational unit.
* The administrative head of the unit be a Mayor.
* The executive/coordination function will be done by the District Officer appointed by the Divisional Council and reporting to the Mayor.
• That at least 30% of the seats in all councils be reserved for women
• That all councils have both executive and legislative powers.
• Districts courts to emphasize ADR systems
• The Provincial Senate and National Government shall respect the quasi-
autonomy of the councils
• National Government law takes precedence over all council law
• The tenure of office be 4 years for all elected officials
4.1.2 At the Provincial Level
• Dissolution of the Provincial Administration
• Establishment of the Provincial Senate
* Headed by the Governor directly elected by the people
* The executive officer will be the provincial officer appointed by the Provincial Senate reporting to the Governor.
* At least 30% of the seats be reserved for women
* Election of the assembly be by direct suffrage based on the current constituencies
* Each constituency elects 2 Senators
* At least a third of the Senators be eligible for re-election every 2 years
* The tenure of office be 6 years for all elected senators for a maximum of 2 terms
• The Provincial Senate shall have executive and legislative powers
• Each province shall have a High Court
• Culture and Police will be a provincial issue
• The Provincial Senate shall designate their official languages. In order to preserve harmony between linguistic communities, they shall respect the traditional territorial distribution of languages and take into account the indigenous linguistic minorities
• Education at primary and secondary will be a provincial matter
• The regulation of the relationship between the church and state is a provincial matter
• Assistance to the needy persons will be a provincial issue
• Running of District and Provincial Hospitals is a provincial matter
• Establish the Provincial Public Service Commission
• Deal with land matters
• Establish the office of a Provincial Attorney General
• Establish the office of Provincial Ombudsman/Inspector General
4.1.3 At the National Level
Judiciary
* Establishment of a Supreme Court to deal with constitutional matters, communal autonomy, international contracts, inter-provincial contracts, and disputes between the National Government and the provinces
* Establishment of a Court of Appeal
* There will be a Judicial Service Commission
• Parliament
* The National Parliament is the highest authority of the country
* 30% of the seats in parliament shall be reserved for women
* There shall only be one chamber, the House of Representatives
* They shall be elected by the people along the lines of the current systems in proportion to the population and geographical spread.
* The meetings of the chamber shall be public
* Every representative be elected for four years for a maximum of three consecutive terms
* There will be a Parliamentary Service Commission
* Election of Speaker by at least 50% of the MPs
* Executive
* President
o Head of state
o Commander-in-chief of the armed forces
o Opens and dissolves parliament
o Symbol of country sovereignty
o Shall not be a nominee of any political party
o Sign all bills passed by parliament by the people
o Share defined executive powers with the Prime Minister
o Elected for a six-year term renewable once directly by the people
o Deputized by one Vice President, elected as running mate
* Prime Minister
o Head of Government
o Head of political party with majority seats or coalition of parties
o Cabinet will be from among the members of parliament
o Parliament shall set the limits for the cabinet size
o Responsible for coordination of national government operations
o Chairman of the Governors' Conference which shall be held at least twice in a year
o Brief the President once a week on the operations of the government
o Leader of government business in parliament
o Assisted by a maximum of 3 deputies
o Share some executive power with the President under defined terms
* Attorney General
o Minister for Justice
o Director of Public Prosecutions
* National Service Commission
o Responsible for the appointments of all National Civil Servants
* Auditor General
o Merge the two current units into one
* Inspector General/Ombudsman
o Deal with public complaints