"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Sunday, September 5, 2010

A Primer on the Proposed Constitution of Kenya

Recently the Constitution of Kenya has been in news on its successfull outcome in the referendum. The Constitution making process has been long drawn and had witnessed rejection of earlier drafts. The proposed constitution have certain elements which could catch the imagination of a Constitutional Scholar.

The Constitution is divided into 17 chapters with a Preamble and as any other constitution ihave social, political, economic, and legal aspects. It covers the rights and structural part of governance and government.

One of the most striking features of the Constitution is Chapter 6 on 'leadership and integrity'. It spells out the expectations of the nation of its leaders and officials. It also lays down institutions and procedure to realise this constitutional mandate and attempts to address the issue of corruption. It explains the role of state officers, sets standards, and prescribes measures to ensure its upkeep. The mechanism to implement the same is through an Independent Ethics and anti-corruption commission.

Chapter 7 is the next highlight. It sets out the democratic norms. This chapter contains provision for demarcation of constituencies, universal franchise, equitable representation and setting up of a Commission to supervise the business of election. Members of the Commission are determined by an Act of Parliament and the National Assembly must approve the appointments to preserve its independence. The Commission has wide and roving mandate even to enquire into the structure and functioning of political parties. This chapter also sets out the should be characteristic feature of the political parties. They are; to have a national character and not be based on religion, ethnicity or gender and democratically elected governing body. Parties are expected to respect human rights, promote the Constitution and observe the electoral code of conduct.

The constitution recognises the importance of independent judiciary and the provisions relating to judiciary is in chapter 10. To enable the judges to function without fear and favour, certain measures are entrenched. They are; a declaration that judges may not be controlled by anyone when they decide cases, securing the tenure post and pay of the judges, and removal only on specific grounds after following elaborate process, and establishing a Judiciary Fund which will be managed by the Chief Registrar of the judiciary that finance shall not be a pressure point. The judges will be chosen by a Judicial Service Commission, which includes people from the judiciary, the profession, government, and the public. This chapter provides for the setting up of a new court at the apex level, the Supreme Court and retains the structure of the lower level courts as it stood including the Khadis' Courts.

Elaborate Bill of Rights chapters secures the people against the potential of encroachment of rights and seems to be eager to provide for rights in all magnitudes. One of the highlights is the way limitation on rights is prescribed. This seems to reflect the quintessence of judicial review experiences of civil and common law systems. Laying down the criteria of limitation prescribing the standards of review, to me, is the most important underline.

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