Voices of Kenyan Youth on the Harmonized Draft Constitution

Introduction

This is a memorandum by the youth of Kenya expressing the voices of the youth of Kenya after analyzing the harmonized draft constitution, presented to the Committee of Experts for review and consideration.

The Youth Katiba Consultative Forums

The Youth of Kenya convened under the national youth convention (NYC) hosted youth consultative meetings to analyze the draft constitution and made key recommendations.

The Youth Katiba Consultative Forums took place between December 10 and 16th 2009. Online discussions took place between November 17th and December 16th 2009 with over 2000 youth contributing through the online discussion forum of the NYC on google groups and facebook. This is to highlight the key issues raised, pending the memorandum that will be ready on Wednesday 16th December 2009.

Locations of Meetings

The meetings were held in the following places

  1. Naromoru – Kieni East and West
  2. Machakos
  3. Kariobangi North
  4. Nakuru
  5. Eldoret
  6. Chwele
  7. Busia
  8. Kakamega (9 Districts in Western Participating)
  9. Kisumu
  10. Kisii
  11. Garissa
  12. Malindi
  13. Mwatate
  14. Mombasa
  15. Marakwet East
  16. Marakwet West
  17. Meru
  18. Kiambu
  19. Marsabit
  20. Pumwani
  21. Makadara
  22. NYC IV Online google group platform with over 1200 members participating and facebook with 970 contributing.

A total of 1050 youth participated in the physical meetings country wide.

Summary of the Recommendations from the Kenyan Youth

The following are the outstanding recommendations from the young people who attended

1.    A National Youth Council established in the Constitution under Article 40

2.    Dual Citizenship and holding of elective and constitutional offices. The Constitutional should expressly provide that any person who owes their allegiance to another country through dual citizensip shall not be allowed to hold an elective public office or be eligible for appointment to a constitutional office.

3.    Land Ownership: We demand that there should be prescribed

a.    The maximum amount of idle land that should belong to an individual to NOT more than 10 acres

b.    The maximum amount of land owned by an individual to NOT more than 100 acres

4.    Parliamentary Recall

a.    We want this right to be guaranteed in the Constitution and extended to the Senate

b.    We want it stated that this clause shall only be invoked at least 2 years after the election of an MP

c.     The conditions of recall should be as those for impeachment of a president.

d.    The Executive: We want a Presidential System of government with the following provisions:

  • Transfer ALL the powers the HDC currently bestows in the PM to the President.
  • Choose the entire cabinet from OUTSIDE parliament
  • Retain all the checks and balances.
  • Retain the election procedure but make the President a member of a Political Party
  • President however, should not be a Member of Parliament.
  • Make ALL cabinet members appointed from outside of parliament
  • Make it a requirement that not more than 2/3 should be of the same gender
  • Make it a requirement that at least a 1/3 MUST be young people
  • Provide a clause for approval of Cabinet appointees by Parliament to ensure the people appointed enjoy support across the board
  • Appointment of Principal Secretaries  should be a function of the Public Service
  • Appointments of Ambassadors and High Commissioners should be done by the President and approved by Parliament
  • Create the position of a non-executive PM and his/ her deputy who shall be the Leader of Government Business in Parliament and who shall sit in the Cabinet.
  • As regards the Attorney General, it is our recommendation that the AG should be appointed by the President and approved by Parliament.  The AG should only serve for a term of five years as the president shall serve. The president can sack the AG if the AG does not promote the policy objectives and legislative program of the government of the day.

i.             170 1. (c) Elucidate on gross misconduct

CHAPTER Key provision ISSUES RECCOMENDATIONS
1 Sovereignty of the People The introduction of this chapter right from the CKRC draft of 2002 is a major philosophical victory for our nation, governance and society We are Happy
2 The Republic Article 5 does not specify exactly what the territory called Kenya comprises of and therefore it leaves room for disputing our boundaries like recently happened in Migingo. Use the recently conducted surveys to clearly define Kenya’s territorial boundaries
3 National Values, Principles and Goals are lumped together Separate these into their own paragraphs for clarity

  • 13 2 (s) add justice
  • Add 12 1 (d) Patriots Day
4 Citizenship We are happy with the provisions on dual citizenship as this is the trend internationally

Deprivation of citizenship should only apply to those who are not citizens by birth.

Amend 20 (1) to read “A child found in Kenya whose nationality and parents are not known, is presumed to be a citizen by birth”

Add a section to article 22 to read “A person who is a citizen by birth shall not be deprived of citizenship”

5 Culture Recognition of culture is a progressive step
6 The Bill of Rights Article 40 on the Youth is too vague.

It makes no sense that we should increase the period of incarceration of Kenyans in police custody after arrests from 24 to 48 hrs.

Article 73 (4): We should not give the police leeway to trump up charges against young people.

Return the Bomas Section on the Youth; precisely Article 39.

Amend Article 62 (2) to read… The right to emergency treatment in all hospitals in Kenya  is guaranteed

Amend Article 72 (f) to reduce the time the police would take to arraign a suspect in Court to 24 hours to avoid the police harassing young people as has been the case.

Article 73 (4) should completely prohibit the use of evidence obtained in a manner that violates the Bill of Rights. It should read, “73. (4) Evidence obtained in a manner that violates any right or fundamental freedom set out in the Bill of Rights shall be excluded.

Insert before 76. 2 (e)  Youth Commissioner who has knowledge and affairs of the youth.

Delete 35 (2) as it legalizes the death penalty

Add between 41. 1 & 2 to read; “Every child has the right to have knowledge and access to their parents”

7 Land and Property A very progressive chapter that would help in righting wrongs of the past

85.1 (h), (2): If left to parliament to legislate, it might never occur since the MPs are the owners of these lands

81: Put a cap on maximum idle land one can hold to 10 acres.

Max acreage: 100

Delete 85 (2)

Amend 85. 1 (h) to prove for a specific time line in the schedule that shall ensure that the propriety and legality of these lands is acted upon at once.

8 Environment and Natural Resources We are happy with the provisions of this Chapter especially 87 (1) that compels the state to maintain a tree cover of at least 10%
9 Leadership and Integrity Generally a very good chapter that clearly defines service. Amend 99 (4): the commission shall continue to investigate any matter irrespective of whether it is before a ourt or judicial tribunal
10 Representation of the People We need a principle included that recognizes Mixed Member Proportionate Representation

Article 112 (g) is not clear on whether IEBC has powers to enforce the Code of Conduct – something that was overwhelmingly suggested for the Kriegler Commission

112 3(d) is not consistent with the rest of the draft as the Regional Executive Committee is appointive.

Add an article between 105 and 106 that reads as follows:

“No candidate in county, regional or national elections shall not owe allegiance to any other state by way of citizenship”

114 (1) Add j. Promote the representation of youth in its governing council by reserving at least a third of the seats in its top most decision making organ to the youth.

112 3(d): Delete everything after “assemblies”

11 Legislature We need to set minimum academic qualifications for one to be an MP. If even the current constitution requires one to be able to read and write in Kiswahili and Emglish!

The manner of getting MPs to Parliament is too complicated and difficult to work out especially when a time comes when affirmative action is no longer necessary.

Amend 125 (1) to read,

“The Senate shall consist of—

(a)   Members elected one each by the counties through universal suffrage.”

(b)   2 Youth elected each from every region.

Article 131 should clearly state the situations under which an MP may be recalled and tighten it up. Min 2 yrs

Schedule the law within 1 yr.

126 (1) Add between (d) and (e) “Youth elected one each by the counties, each county comprising a single member constituency”

12 The Executive We are recommending that we have a Presidential System of Governance. To this end we are proposing that the HDC be amended to attain the following:

  • Transfer ALL the powers the HDC currently bestows in the PM to the President.
  • Choose the entire cabinet from OUTSIDE parliament
  • Retain all the checks and balances.
  • Retain the election procedure but make the President a member of a Political Party
  • President however, should not be a Member of Parliament.
  • Make ALL cabinet members appointed from outside of parliament
  • Make it a requirement that not more than 2/3 should be of the same gender
  • Make it a requirement that at least a 1/3 MUST be young people
  • Provide a clause for approval of Cabinet appointees by Parliament to ensure the people appointed enjoy support across the board
  • Appointment of Principal Secretaries  should be a function of the Public Service
  • Appointments of Ambassadors and High Commissioners should be done by the President and approved by Parliament
  • Create the position of a non-executive PM and his/ her deputy who shall be the Leader of Government Business in Parliament and who shall sit in the Cabinet.
  • As regards the Attorney General, it is our recommendation that the AG should be appointed by the President and approved by Parliament.  The AG should only serve for a term of five years as the president shall serve. The president can sack the AG if the AG does not promote the policy objectives and legislative program of the government of the day.

170 1. (c) Elucidate on gross misconduct

13 The Judiciary Amend 209 (4) by deleting “the former Protectorate or within such part of the former protectorate as may be so prescribed.” And replacing with “Republic of Kenya”
14 Devolved Government The three levels of devolution are OK. The First Schedule should retain the 14 Regions as negotiated in the Bomas Draft

Article 222 should specify exactly what numbers shall be nominated through party lists. To leave this for calculations would be a mistake. Past experience has shown that calculations can be tampered with.

Article 218 & 224: Election of County and Regional governors should be done by the people through universal suffrage to avoid cronyism. This is already proposed in the amendments to the local government Act and if the HDC proposals were to remain as they are, these articles would be retrogressive.

15 Public Finance Create an Agency for debt management

256 2. Add “and payments so far and the means of future payments”

16 Public service The Membership of PSC should be included.

Include a Youth Rep in PSC

At least 1/3 of all senior appointments should be young people

19 Amendment to the Constitution 306. Amend h) to read the format, structure and functions of Parliament

Add k) The Declaration of the Republic Article 4.1&2

20 Chapter 20 Delete 315 as we do not want a situation where the President for some reason refuses to promulgate.

Add 317: This Constitution may be repealed only by the people through a referendum.

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About yipe
Yipe an acronym for the Youth Interactive Portal for Enterprise is an organization that assists entrepreneurs to start up and manage their small businesses.

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