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Sunday, 25 August 2013

Differences between The Repealed and the New Constitution of Kenya

· The preamble.
The current constitution has a preamble sets out the collective Kenyan spirit for making this constitution. Saves the spirit of posterity.
The old constitution did not have a preamble. The spirit of our forefathers has been lost with the passage of time.

· Chapter 1.
The current Constitution recognizes the Sovereignty of the people and the supremacy of the Constitution. This secures the people from abuse by those that will wield power.
The old draft fails to recognize the supremacy of the people. Rather it places the institution of the Presidency above all else through direct and indirect interpretation.

· Chapter 2.
The current Constitution sets out the foundation of the Republic.. National values and principles of governance are the biggest win in this chapter. All institutions of public life as well as the officers populating them will be guided by these principles. This lays the foundation for similar interpretation of the law and standard behavior of public officers.
Did not exist in the old constitution.

· Chapter 3.
Citizenship is defined in the current Constitution. Citizen rights are explicit and secured. Dual citizens provided for thus protecting the Kenyans who may go to other countries so that they don't lose their Kenyan citizenship unless by personal choice. Women will confer citizenship to their spouses.
In the old Constitution the National identity papers especially Passport is seen as a privilege. Women do not confer citizenship to spouses yet men easily do. Kenyans who emigrate to other countries lose their Kenyan status.

· Chapter 4.
In the current Constitution, The Bill of Rights is for once so elaborate the state will not be allowed to grant rights. The exceptions as to when any right may be abrogated have been clearly provided for. Harassment and intimidation will be a thing of the past. Redress for breach of rights is provided for. Socio economic rights recognized. The Bill of Rights forms a basis for the realization of human dignity and self-fulfillment.
Chapter V of the old constitution provides for a minimalist Bill of rights. It recognizes rights which it quickly takes away. The government has historically implemented the law by the exceptions rather than the actual rights. Retrogressive.

· Chapter 5.
Land and the environment are, for the first time, linked in the current constitution. Land is now recognized as a common heritage. No one person may own obscenely large tracts of land. Foreigners cannot have absolute ownership of land. The classification of land protects the common heritage in the user systems in accordance with the National Land Policy. Absentee land lord phenomenon is a thing of the past..
The National Land commission will work within the national values and principles of leadership thus minimize abuse of power.
In the old Constitution, Land is seen in the same way as any other property thus has been abused. No proper regulation has been in place. The commissioner of lands and the president have been the ones granting title thus abuse of the common heritage.
Common resources and opportunities are shared equitably

· Chapter 6.

For the first time our Constitution will have the principles of leadership and integrity. The chapter clearly outlaws unpatriotic conduct. Nepotism and tribalism will be dealt a serious blow. Anti-corruption mechanisms are protected thus ensuring that corruption is meaningfully dealt with. Those in power will be bound by these principles hence favoritism will be significantly reduced if not out rightly finished.
In the old Constitution, no provision exists. Weak anti-corruption laws exist outside the constitution. Lack of political will to prosecute corrupt individuals has seen corruption grow tremendously. Leaders are guided more by the fact that they have power rather than exercise it responsibly.

· Chapter 7.
In the current Constitution, the electoral system, the sanctity of the vote, the right of every adult citizen to participate either as voters or candidates, independent candidates, party lists to promote equity in representation is all gains that have been introduced. Inclusion of gender parity, constitutional regulation of political parties are all important gains so that the corruption that has hitherto existed with individuals owning political parties or parties being tribal/ ethnic outfits thus politically polarizing the country will be things of the past.
The Independent Electoral and Boundaries commission will take away the gerrymandering that has previously occurred whereby government delineated boundaries to the benefit of some and to the disadvantage of others.
In the old constitution, the electoral system is not elaborate. No gender equity. Political parties are fiefdom cases though recognized by the law just as vehicles for election. Electoral malpractices are not forbidden out rightly in the old one. Systems and structures promote nepotism.

· Chapter 8.
In the current Constitution, the Legislature is clearly defined. The roles of both Houses provided for. The possibility of a rogue parliament is nibbed by the existence of the Senate. Procedures and matters of sovereign importance are provided for. The legislature is meaningfully separated from the executive. The calendar of the Houses controlled by law.
Impeachment procedures secured from malicious political machinations. Provision for effective checks and balances between the President and the parliament are made.
In the old Constitution, other than the functions of parliament being provided for as being legislative, the separation of power is minimal. No real legal mechanism for checks and balances. No devolution so no upper house exists.
The executive wields massive power and influence over the house thus causing plentiful of breaches without accountability.

· Chapter 9.
In the old Constitution, the executive authority is DECLARED in the draft to derive from the people and must be exercised in accordance with the constitution. Therefore, executive authority must defer to the sovereignty of the people and respond to the national objects values and accountability mechanisms throughout the constitution.
Deputy Presidency introduced. Deputy to seek election as a running mate.
Appointment of public officers by the President is bound to be confirmed or authorized by parliament.
Introduction of new procedures and known timelines for elections and the challenge if any to the presidential election in built in the draft. Election dates shall never again be a secret weapon nor will it be possible ever to swear presidents in surprise.
Cabinet to be appointed from outside of parliament thus take away corrupt political practices.
Number of cabinet positions set out. This will reduce unnecessary expense in servicing politically expedient objects. Possibility of abuse of power by the AG.
Security of tenure for DPP which takes away the possibility of being intimidated in the line of duty creating room for sycophancy to the executive.
The old constitution vests all executive authority on the President (and in a limited way through the National Accord) with the Prime Minister. The executive authority is authoritarian and does account to the people other than in a very limited way to parliament which is itself not effectively independent or checked.
Lacks clarity regarding the presidential election disputes resulting to legitimate disputes being obfuscated.
The AG is executive, prosecutor, and Parliamentarian. His office both abuses power to prosecute and persecute.
The DPP is subordinate to the AG thus making his/ her independence tenuous.

· Chapter 10.
In the old Constitution, Judicial authority is declared to derive from the people. This is key because the judiciary must therefore serve the best public interest.
An independent and better mixed Judicial Service Commission is established with Public participation.
Judges to be vetted and approved by Parliament. The p[positions in the judiciary to be advertised and competitively filled taking into account the principles of equity, equality expertise.
Office of Deputy Chief Justice to promote administrative accountability. In the old Constitution, the judiciary is just mentioned as an organ. Courts established but not guided by any people based principle.
The law applicable doesn't derive authority from the sovereignty of the people.
Judges appointed in opaque, manner with a JSC which is only beholden to the President.
Neither standards set out nor criteria for appointment other than age.
Corruption has been rampant without any checks and balance or accountability.
Chief Justice has no deputy thus creating incentive for personal loyalty from individual judges to the CJ thus killing judicial independence.

· Chapter 11.
In the current Constitution, devolution of power and resources has been provided for too promote effective citizen participation in governance and accountability.
County governments seek to replicate national governance structures at the local level where taxation will be levied and supported so as to enhance development at local levels as well as provide equitable and more opportunities for citizens to participate meaningfully in matters of government.
The old Constitution does not contain any form of devolution. Decentralization only transfers the challenges of the central government plagued with corruption and nepotism.
The old constitution concentrates all power and authority on the president with little or no citizen participation other than the periodic ritualistic elections.

· Chapter 12.
The new Constitution provides for Imposition of tax, regulation of taxation, allocation and establishment of funds are key features of the draft. Distinct objects and purposes of taxes is clearly set out.
Public loans to be approved by parliament as well as to be made public.
The creation of budget and revenue commissions will strengthen accountability and reduce theft or misuse of public resources for the benefit of a few regions rather than the whole country.
The old constitution creates the consolidated fund but gives parliament the power without capacity to supervise its application.
There is no budget office. Only executive budgets, usually secretly thus providing the perfect environment for misappropriation of public resources.
No known principles or guidelines for accountability and transparency.
Public debt incurred by the executive and kept secret thus providing the best environment for corruption and theft.

· Chapter 13
In the current Constitution, the public service is established with principles of probity, best public interest, equality, equity, transparency and the national values. That public servants are employees of the public rather than their bosses is clearly set out.
Regulation of the service provides for coherence between the national and country governments.
In the old Constitution, public service taken to serve at the pleasure of the president.
Neither accountability nor principles. No safeguards against ethnicity and nepotism.
Official secrecy and chain of command that does not respond to public accountability distorts service delivery.

· Chapter 14.
In the current Constitution, National security is clarified and is founded on the national principles and values.
National security is now subjected to parliamentary supervision and under authority of the constitution.
The various commissions and services are periodically responsible to the people through parliament.
In the old Constitution, the national security considered a secret. The president embodies national security. His personal interests are not distinguished from the collective national interest.
Public officers do not distinguish between personal misadventures from real national security concerns thus precipitating abuse.

· Chapter 15.

For the effective delivery of service and within the framework of constitutional accountability various commissions have been established so that they may safeguard the common national values in respect of their mandates in the current Constitution.
The commissions are protected from manipulation. Their substantive and operational independence assured.
In the old Constitution, all commissions other than the Judicial Service Commission and the Public Service Commission are established subordinate to the constitution. Even these two are created in such a way as to serve the interests of the executive or just president.
These commissions are used to perpetuate impropriety and nepotism rather than common public good.
They are not independent and are manipulable as part of the public service.

· Chapter 16.
The amendment of the current constitution is made deliberately difficult and cumbersome so that the values espoused are not lost through frivolous or sectarian political interests depending on elections and circumstances.
The foundational provisions will require referenda to cause amendment whereas the other amendments will require the absolute majority of the two houses.
Citizens also reserve the right to petition for amendment through a rigorous but safe mechanism of raising one million signatures.
The old constitution does not have any safeguards against parliamentary amendment. Indeed as a result the constitution changed its character from the innocuous one of 1963 to the mongrel and piece of dictatorship it is today.
Parliament not accountable to the public in any way. The public have no constitutional mechanism for causing amendments other than depending on the goodwill of the politicians.

· References.

information compiled by llb 2013 may intake students .


  1. By using the phrase "the old constitution "...are you referring to the 1963 independence constitution or the 2005 rejected constitution?

    1. the term "Old Constitution" should be interpreted in the context of the topic which reads differences between the "Repealed" and new constitution of Kenya.

      The Repealed Constitution is the 1963 Constitution.