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  "What father among you, if his
son asks for bread, would give him
  a stone, or if he asks for a fish,
would give him a snake instead of
             the fish?”
                                                                Luke 11:11

     Though the Proposed Constitution of Kenya has a few
     very good provisions like Article 10, on National values
     and principles of governance, the very many bad and
     dangerous provisions given in this booklet are reasons
     enough for anybody who cares about the wellbeing of the
     Republic of Kenya to Vote NO!


Part I: Introduction ....................................................................................................... 3
  1.       About a Good Constitution............................................................................. 3
  2.       Why a New Constitution? .............................................................................. 3

Part II: Gains Kenyans have lost .................................................................................. 4
  3.      Loss of Parliamentary oversight over Public Debts ......................................... 4
  4.      Loss of the Ethics and Anti-Corruption Commission ...................................... 4
  5.      Loss of Parliamentary Ratification of Treaties ................................................ 5
  6.      The Sneaking of Dangerous Provisions into the PCK ..................................... 6
  7.      Loss of an Independent Judiciary ................................................................... 7

Part III: Contradictions in the PCK ............................................................................. 9
  8.       Impurities in System of Government .............................................................. 9
  9.       Impurities in operations of Parliament .......................................................... 10
  10.      A Weak Senate ............................................................................................ 10
  11.      The Elevation of Islam over other Religions ................................................. 11
  12.      Canonisation of Rogue Affirmative Action .................................................. 12
  13.      Violation of individual liberty and ideals of nation building ......................... 13

Part IV: Threats to Future Generations ..................................................................... 14
  14.     Legalising Abortion ..................................................................................... 14
  15.     Legalising Homosexuality ............................................................................ 15
  16.     Punitive Costs of Bloated Bureaucracy......................................................... 16
  17.     Poor Representation and Balkanisation ........................................................ 17
  18.     Destabilisation through Reckless Land Reforms ........................................... 18
  19.     State Security Concerns ............................................................................... 19
  20.     Foreign Words and Missing Clauses ............................................................ 20
  21.     Hostility to Future Amendments or Replacement ......................................... 20

Part V: Yet More Hidden Dangers ............................................................................. 23
  22.     Problems with Representation ...................................................................... 23
  23.     Imposition of “other written law” ................................................................. 23
  24.     Dangerous Marriage Laws ........................................................................... 23
  25.     License for Pornography .............................................................................. 24
  26.     Uniforms ...................................................................................................... 24
  27.     Currency ...................................................................................................... 24
  28.     Dismissal of Parliament by the Chief Justice ................................................ 25
  29.     Rights of Children ........................................................................................ 25
  30.     Detention of citizens .................................................................................... 25
  31.     Burden of Public Debt on Future Generations .............................................. 26
  32.     Potential for abusing the Nolle Prosequi ....................................................... 26

Part I: Introduction

1. About a Good Constitution
  A good Constitution should help us create a sovereign Kenyan State that can compete
  for socio-political, economic, scientific, technological and military superiority by
  building a citizen-focused, integrated and progress-oriented Kenyan nation that is an
  aggregate of free and prosperous individuals who, in heart and mind, are loyal, first
  and foremost, to the State not to other identities.

2. Why a New Constitution?
  •   Kenya was founded and governed as a private company called the Imperial
      British East Africa Company (IBEAC) which administered British East Africa,
      the forerunner of the East Africa Protectorate, which was later renamed Kenya.
  •   IBEAC laid the foundation of oppression and exploitation that turned all Africans
      from being citizens (i.e. people who have both rights and duties) into subjects (i.e.
      people who only have duties but no rights).
  •   Kenya was conceived as a private estate, not a State, and was managed to benefit
      the privileged few who owned both political power and property.
  •   The Independence struggle was basically to change Kenya from being an Estate
      into a State.
  •   A State would restore all rights to Africans.
  •   Unfortunately, this was lost because the colonial establishment, which included
      home guards, outmanoeuvred the nationalists and established an order that
      allowed for blacks to take over political power, but ensured that the country
      remained a private estate and an imperialist machine of oppression and
  •   The current clamour for a new Constitution is a continuation of that struggle to
      turn Kenya from being a private Estate into a democratic State.
  •   The same forces that denied us change at independence have again hijacked the
      struggle to perpetuate their stranglehold so they can continue oppressing and
      exploiting us.
  •   Further, they have introduced dangerous concepts that will make us poorer than
      we already are.
  •   We will lose our values and identity.
  •   We reject the Proposed Constitution of Kenya because it is a repeat of the
      1963 betrayal!
                                       VOTE NO!

Part II: Gains Kenyans have lost

3. Loss of Parliamentary oversight over Public Debts
          Since the Bomas Constitutional Conference, Kenyans have desired to
           control public borrowing because it is the main facility through which
           grand corruption is perpetuated.
          Today, the spiralling public debt, which is largely driven by mega
           corruption, hence, the absence of corresponding improvement in the lives
           of Kenyans, stands at 1.3 trillion shillings, meaning every Kenyan child
           owes Ksh. 30,000/= at birth.
          We spend an average of 25% of the annual National Budget to service the
           public debt, compared to 2% on agriculture and 3% on Education.
          That is why, in Clause 266(2) of the 2005 Wako Draft and in Article
           253(2) of the Harmonised Draft, Kenyans had clearly demanded that:
           “The national government shall not, on behalf of itself or any other public
           institution, authority or person, borrow money, guarantee a loan or
           receive a grant unless the terms and conditions of the transaction have
           been laid before and approved by a resolution of each House of

  •   Obviously, this was not done to benefit Kenyans.
  •   The removal of mandatory Parliamentary oversight on borrowing by the national
      government in Article 211(1) will open floodgates to the acquisition of odious
      debts by the Executive.
  •   We reject the Proposed Constitution of Kenya because it will allow looters to
      pillage and plunder our resources!
                                     VOTE NO!

4. Loss of the Ethics and Anti-Corruption Commission
  •   Corruption has been the main cause of our underdevelopment because it is the
      convenient vehicle through which our resources are plundered as ruthlessly as it
      was done in colonial times.
  •   Kenyans wanted to eliminate corruption by creating a powerful constitutional
      institution that could be used to fight the social evil.
  •   The 2005 Wako Draft (Article 99) and the Harmonised Draft (Article 99),
      established a robust anticorruption organ.
  •   The Committee of Experts (CoE) removed the Ethics and Anti-Corruption
      Commission in Article 79 of the Proposed Constitution of Kenya (PCK).
  •   The removal is a major blow against the war on the endemic plunder of public
  •   If we leave it to Parliament, our MPs will most likely establish a very weak organ
      that cannot hold them accountable.

  •   Further, if the Anti-Corruption Commission is established as an Act of
      Parliament, it will lack the constitutional teeth it requires to fight grand corruption
      which is perpetuated by the rich and the mighty.
  •   Under an Act of Parliament, the Commissioners will not have the security of
      tenure they need to tackle the corrupt, especially if they are politicians.
  •   The Commissioners will live in perpetual fear of politicians since the Commission
      can be disbanded by a simple majority in Parliament.
  •   To protect their jobs, they will avoid rubbing politicians and their friends the
      wrong way.
  •   We reject the Proposed Constitution of Kenya because it has no mechanisms
      for fighting corruption!
                                       VOTE NO!

5. Loss of Parliamentary Ratification of Treaties
  •   Because of the globalisation of the world and the push by Western countries for
      the adoption and domestication of International treaties and conventions based on
      their values and interests, Kenyans sought to move away from the current system
      of ratifying treaties through the Executive without the representation of the
  •   As a global player, Kenya has to ratify some international conventions and
  •   However, if ratification is without representation which, ideally, is through a
      legislative process, the people have no way of objecting wholly or in part to any
      treaty or convention they do not like.
  •   Executive ratification makes it easier to impose on Kenyans laws promoting vices
      like homosexuality, lesbianism, and abortion (or the so-called reproductive
  •   For example, the Hague Marriage Convention recognizes Gay rights, and The
      Maputo Protocol recognizes the right to legal abortion as a reproductive health
  •   Reproductive health rights include the right to abortion on demand.
  •   If we ratify any international treaty or convention that allows homosexuality,
      lesbianism, same-sex marriages, or abortion, Kenya will have legalised those
  •   The same applies to treaties on international trade.
  •   In the USA only the Senate has the power to ratify international treaties and
  •   In many countries ratification requires the approval of Parliament.
  •   In complete disregard of their mandate, in a daring display of impunity, and in
      total betrayal of the trust Kenyans vested in them, the CoE disregarded the
      demand Kenyans had made since Bomas, rejecting the ratification of international
      treaties and conventions through Executive fiat without representation.
  •   Kenyans wanted ratification with representation through Parliament. The demand
      for parliamentary approval and ratification of international treaties and
      conventions is provided for in the following documents as follows:

         •    The Wako Draft Constitution of 2005 - Article 115(2)(g);
         •    The Harmonized Draft Constitution of November 17, 2009 - Article
          • The Revised Harmonized Draft Constitution of January 8, 2010 - Article
          • The PSC Draft Constitution of January 29, 2010 - Article 88(c).
          • The PCK of February 23, 2010, does not have this provision in Articles
              94, 95 & 96 that deal with the role of Parliament.
  •   This means that, effectively, Parliament has no say over international treaties and
      conventions which are ratified by the Executive.
  •   The very important parliamentary duty is taken away against the will of the
      Kenyan people who wanted ratification with representation, especially at this time
      when the Western world is trying to force us to ratify hostile trade treaties like
      European Union’s EPA treaty that will destroy our economies.
  •   Why did the CoE remove parliamentary approval? Was it to make ratification
      easier? Who benefits? Who are the losers?
  •   The CoE surrendered Parliament’s legislative role to external forces.
  •   The ratification of international treaties and conventions without the approval of
      Parliament is dangerous since foreign laws that promote “rights” recognized by
      others but not embraced by Kenyans can easily become part of Kenyan Law
      through the backdoor.
  •   We fought long and hard to win the freedom we enjoy today and we will not
      allow anybody to recolonise us.
  •   We reject the Proposed Constitution of Kenya because it effectively
      undermines the sovereignty of the Republic and seeks to recolonise us
      through international treaties and conventions that are not vetted by our
                                       VOTE NO!

6. The Sneaking of Dangerous Provisions into the PCK
  •   As the CoE removed parliamentary oversight over International treaties and
      conventions, they parachuted the following dangerous clauses into the PCK:
           2(5) The general rules of international law shall form part of the law of
           2(6) Any treaty or convention ratified by Kenya shall form part of the law
               of Kenya under this constitution.
  •   The protection of the rights conferred under international treaties/conventions is
      provided for by the PCK under Article 59(g) where the Kenya National Human
      Rights and Equality Commission is mandated to ensure Government compliance
      with the treaties.
  •   Clause 21(4) obligates the State to domesticate international treaties on human
      rights irrespective of whether or not they have been clandestinely introduced into
      the country.

  •   Parliament, which is denied its rightful role to oversee the ratification of
      international treaties and conventions, is compelled to give the force of law to an
  •   It is of utmost importance that the ratification of international treaties &
      conventions must be with Parliamentary supervision and approval.
  •   Clauses 26(5)(6)(7) in the Revised Harmonised Draft were deleted yet they dealt
      with domestication, parliamentary approval and oversight over the ratification and
      implementation of international treaties relating to human rights.
  •   As is the case in many democratic countries, including very advanced ones, where
      the ratification process involves Parliamentary approval, the Proposed
      Constitution of Kenya must not contain ratification of international
      treaties/conventions without representation.
  •   If Kenyans are sovereign, it follows that all laws in force in Kenya must emanate
      from the people directly (referendum) or through their representatives in
  •   It is unacceptable to provide a situation where ratification without representation
      automatically binds the people!
  •   Americans and other free nations refuse to surrender their legislative role to the
      international community.
  •   Do we want to surrender our legislative role in respect to international treaties?

  •   We reject the Proposed Constitution of Kenya because it contains the
      dangerous provisions!
                                 VOTE NO!

7. Loss of an Independent Judiciary
  •   One of the key obstacles to the rule of law in Kenya is because the Judiciary is not
  •   The lack of Independence in the Judiciary is mainly caused by the way Judges are
      appointed, allowing the Executive to pack our courts with gatekeepers.
  •   It is also because we do not have an independent Judiciary that the war against
      corruption and other social ills has been lost.
  •   Kenyans have craved an independent Judiciary, where the appointment of judges
      is strictly on merit through a transparent process that involves vetting and
      approval by Parliament.
  •   Article 190 of the 2005 Wako Draft and Article 205(1) of the Harmonised Draft
      established an independent Judiciary by requiring that all judges be cleared by
  •   But in Article 166(a & b) of the PCK only the Chief Justice and the Deputy Chief
      Justice will be vetted by Parliament. All the other judges will be directly
      appointed by the President, leaving the door wide open for the packing of the
      courts with pro-establishment gatekeepers as is the case today.
  •   Clause 132(2)(f) (read with the definition of 'State Office' in 260(e) and the
      vetting of existing judges in No.23 of the Sixth Schedule) does not cure the long-
      term damage of 166(1)(b) read with 166(1)(a)].

•   Far from what is expected, the vetting of the sitting judges in No.23 of the Sixth
    Schedule will simply compromise the Judiciary further, because any judges
    dismissed by MPs will be replaced by the President without being vetted by
•   This gives room to the new power brokers to pack the courts with their own
    gatekeepers against the public interest.
•   The Judiciary in the PCK is not independent by any yardstick.
•   We reject the Proposed Constitution of Kenya because it denies us an
    Independent Judiciary!
                                    VOTE NO!

Part III: Contradictions in the PCK

8. Impurities in System of Government

  •   By allowing the President to convene Parliament in Article 126(2), the Proposed
      Constitution of Kenya injures the separation of powers between the Executive and
      the Legislature that must obtain in the chosen Presidential system.
  •   The same article does not provide for the conduct of business at this first sitting,
      and it also does not specify how the new Speakers for the two Houses are to be
  •   127(c) (i-ii) assumes a parliamentary system of government where parties not
      individuals are elected to power.
  •   Under the presidential system, parties don’t form governments. Individuals are
      sponsored by parties.
  •   Even an independent candidate can become the President.
  •   Article 89(9) refers to the “dissolution of Parliament” in the Proposed
      Constitution of Kenya.
  •   Under the chosen Presidential System there will be no dissolution since
      parliamentary terms are fixed and will expire on the date of the next general
      election as provided for in Article 102(1).
  •   A key feature of the Presidential System is the fixed-term Parliament.
  •   Article 89(9) technically means that new constituencies won’t come into effect
      until the 2017 elections because the term of the house will expire simultaneously
      as a new Parliament is elected.
  •   Doctrinal impurities concerning the Presidential System are also contained in
      clauses 261 (5) to (9) & 132(1)(a) that assume Parliament can be dissolved, or
      that the President has constitutional power over the legislature
  •   The Powers given the Chief Justice in 261(5,6,7) to compel the President to
      dissolve Parliament are out of place.
  •   First of all, we are not in a Parliamentary System where the President can dissolve
      Parliament to allow a snap election. Presidential systems have a fixed term
  •   Secondly, under no circumstances should the principle of the Separation of
      Powers be breached.
  •   Thirdly, MPs are not elected to operationalise a constitution but to represent the
      people, so there are no grounds for them losing their seats in the prescribed
  •   If the desire is to operationalise the Proposed Constitution then, may be, freezing
      their salaries could be in order, but not overruling the people’s will by declaring
      their seats vacant.
  •   We reject the Proposed Constitution of Kenya because it mixes and fudges
      systems of government!
                                        VOTE NO!

9. Impurities in operations of Parliament
  •   What are Acts of Parliament, or Legislation by Parliament?
  •   Since PARLIAMENT is defined as the NATIONAL ASSEMBLY + the
      SENATE, but bills are not required to pass in both houses, what does the PCK
      mean when it states that Parliament will legislate or refers to an ‘Act of
  •   An Act of Parliament must refer to legislation that has passed through both the
      National Assembly and the Senate.
  •   But the Senate has been denied legislative power in matters that do not affect
      counties (Article 96).
  •   There are many references to Acts of Parliament or to legislation by Parliament
      yet the Constitution does not require both Houses to pass most bills.
  •   How will the two Houses resolve this anomaly?
  •   This problem occurs across the entire body of the Proposed Constitution of
  •   We reject the Proposed Constitution of Kenya because it mixes and fudges
      the operations of Parliament!
                                      VOTE NO!

10.   A Weak Senate
  •   The Senate has been created as the Lower House by being given a very limited
      legislative role (Article 96).
  •   According to the established norm and best international practise, the Senate
      should be the Upper House.
  •   The Senate should be superior to and more deliberative than the National
  •   It should be a very sober house that gives the second and professional view to
      ensure all laws serve the national interest.
  •   The Senate should allow for a more collegial and less partisan atmosphere than
      the National Assembly.
  •   Like in the USA, the Senate should have several exclusive powers not granted to
      the National Assembly, including consenting to treaties and confirmation of State
  •   Being a more prestigious body than the National Assembly, the threshold for
      being a senator, including the allowed lower age limit, must be higher than that of
      the National Assembly.
  •   There should be no considerations of affirmative action in the Senate because it
      represents regions not the people.
  •   The Deputy President should be an ex-officio member and its chair to create the
      critical link between Parliament and the Presidency.
  •   Since there are no regional governments to put proper checks on the powerful
      presidency, we need a very strong Senate.
  •   We reject the Proposed Constitution of Kenya because it creates a toothless
                                      VOTE NO!

11.   The Elevation of Islam over other Religions
  •   In May 2010, the Constitutional Court ruled that the basis of including the
      Kadhis courts in the Constitution of Kenya was faulty.
  •   The 1963 undertaking to protect the former 10-mile strip subjects of the Sultan,
      especially their entitlement to Muslim Law relating to personal status, marriage,
      divorce, or inheritance, in proceedings in which all the parties are Muslims,
      should have been done within the existing constitutional provisions of Section
      82(4)(b), giving to one the choice with respect to the administration of justice in
      matters of personal law.
  •   Being a product of affirmative action based on Islamic identity, and not on the
      interest of Muslims to make preferences in personal law, which is effectively
      provided for in Section 82(4)(b), Section 66 of the current Constitution
      unacceptably enshrines discrimination by favouring Muslims with the Kadhis
      courts which, to make matters worse, are optional not mandatory for Muslims.
  •   Under the Limitation of rights and fundamental freedoms in the PCK, Article
      24(4) contradicts Article 2(4) that affirms the supremacy of the Constitution.
  •   Article 24(4) makes Muslim Law superior to the Bill of Rights.
  •   Article 24(4) effectively elevates Islam, through the Kadhis Courts, above the
      Kenyan State by allowing it to override the Bill of Rights guaranteed to all
  •   The supremacy of religion over both the State and citizens contravenes the tenets
      of democracy that secure individual liberties.
  •   In effect, Article 24(4) means Muslims do not have the full protection of the Bill
      of rights. This is of special concern to Muslim women, who under Islam are not
      considered to be equal to men.
  •   This makes Muslims (especially women) second-class citizens who don’t enjoy
      the rights and fundamental freedoms provided in the Constitution.
  •   Article 24(4) contradicts Articles 27(4), 27(5) and 32(3) of the same Constitution.
  •   Article 24(4) contradicts the objects and provisions of the Review Act, especially
      Sections 4 and 6.
  •   Article 45(3) will create problems for people who marry more than one wife
      under customary law, yet the same will not be a problem for polygamous Muslims
      since they have been given an express exemption from the observance of such
      laws on equality under Article 24(4).
  •   Article170 (2) contradicts Article 27 (4&5).
  •   The fact that the phrase Muslim (Muslim law, Muslim religion, Muslim sects) is
      mentioned 4 times while no other religion is mentioned has covert implications
      and contradicts Article 8.
  •   The creation of Kadhis courts and the special status accorded to Islam in the
      Constitution has the effect of making Islam the de facto state religion in Kenya in
      contravention of Article 8 of the Proposed Constitution of Kenya, and that also
      creates inequality among religions.
  •   It is important to note that in Chapter One (Article 10) on “State and religion”
      the Harmonised Draft states that:

                     (1) State and religion shall be separate.
                     (2) There shall be no State religion.
                     (3) The State shall treat all religions equally.

  •   The Committee of Experts deleted (1) and (3) to allow for the fusing of State and
      Religion, effectively allowing for the creation of Islam as a state religion and
      discriminating against other religions.
  •   Article 32(3) contradicts the provisions of Article 32(1), 32(2), 32(4) and other
      fundamental freedoms, and interferes with the rights of faith communities to
      establish and run private institutions dedicated to the promotion of their
  •   Arguing on the premise that they are a minority group (Article 56) whose rights
      need to be enacted in the constitution also screams of inequality as there are other
      minority religions that haven’t been directly mentioned save by implication only.
  •   Even among the Christian fraternity there are various denominations whose rights
      also need to be addressed.
  •   Further, Article 170(2) contradicts 32(3) in a very grave way given that the
      exclusion on religious grounds refers to Kadhis courts which are a public
  •   To make matters worse, the words “and submit to the jurisdiction of the Kadhi’s
      courts” in sub-Article 170(5) confirm that the said courts are not necessary for
      Muslims as submission to them is discretionary, and are therefore a superfluous
      luxury the State can ill afford to burden the Kenyan taxpayers with.
  •   We reject the Proposed Constitution of Kenya because it makes Islam the
      official State Religion of Kenya!
                                        VOTE NO!

12.   Canonisation of Rogue Affirmative Action
  •   There is no constitutional right to be favoured; the constitutional right is to
      protection from discrimination.
  •   Preference programs cannot be constitutionally justified in a democracy, whose
      key tenet is creating equal opportunity for all.
  •   Why for example would a rich woman get preferential treatment in job placement
      over a poor man who is the sole breadwinner for his family, feeding his even
      poorer wife and children?
  •   Clearly, the solution does not lie in reverse discrimination but in expanding equal
      opportunity for all.
  •   We should strive to create equality by lifting up those who are down, not by
      cutting down those who are up.
  •   Creating quotas for groups in anything does not expand the opportunities
      available to all in society; it only discriminates against those working hard.
  •   Affirmative action is not a solution of any kind, not even a temporary fix, to our
      problem of mass poverty and general social injustice.
  •   Let’s target poverty, not identity. We must summon up the courage to do what is
      right for posterity and not what is merely popular or convenient for the moment.

  •   The only answer to inequality is to provide a better educational system for the
      poor, and to embrace developmental economic policies that will create new
      wealth for all, and expand the economy to lift the masses out of poverty.
  •   But where will the money come from if our limited resources will be wasted
      creating bloated elective and appointive bodies in the name of affirmative action
      for women and the youth?
  •   To make matters worse, the bloated and costly bureaucracy is not designed for
      service delivery and to fight graft.
  •   Such a bureaucracy will deplete the resources we need to lift the masses out of
  •   We reject the Proposed Constitution of Kenya because it converts
      Affirmative Action, a matter of political policy, into a major constitutional
      principle of reverse discrimination.
                                       VOTE NO!

13.   Violation of individual liberty and ideals of nation building
  •   Will the proposed constitution advance individual liberties and freedoms, national
      cohesion and development, or will it restrict them?
  •   The Proposed Constitution will constrain them because it promotes group rights
      over individual rights.
  •   It empowers special interest groups based on factors such ethnicity, religion,
      gender, and disability.
  •   This means Kenyans are not equal; hence, it undermines the ideals of nation
      building and state sovereignty which are founded on the equality of all before the
  •   National economic, political and social development is undermined by fostering
      differences rather than integration, tradition rather than progress.
  •   National development is the economic, political and social organization of a
      national polity based on respect for the individual.
  •   National underdevelopment is the organization of a national polity based on
      respect for special economic, political and social interests.
  •   By promoting policies and practices designed to build an ethnically, racially,
      regionally, culturally and religiously diverse Kenyan State along the fault lines of
      our differences, the Proposed Constitution of Kenya seeks to reinforce
      dissimilarity and, therefore, national decay, rather than fostering integration and
      the resultant national progress.
  •   A good Constitution should help us create a sovereign Kenyan State that can
      compete for socio-political, economic, scientific, technological and military
      superiority by building a citizen-focused, integrated and progress-oriented
      Kenyan nation that is an aggregate of free and prosperous individuals who, in
      heart and mind, are loyal, first and foremost, to the State not to other identities.
  •   We reject the Proposed Constitution of Kenya because it undermines
      individual liberties and the integrity of the Kenyan Nation.
                                       VOTE NO!

Part IV: Threats to Future Generations

14.   Legalising Abortion
  •   Article 35(3) of the 2005 Wako Draft stated: “Abortion is not permitted except as
      may be provided for by an Act of Parliament.”
  •   Article 26(4) of the PCK states: “Abortion is not permitted unless, in the opinion
      of a trained health professional, there is need for emergency treatment, or the life
      or health of the mother is in danger, or if permitted by any other written law.”
  •   A law that permits abortion, whether expressly or indirectly through exception,
      must be carefully drafted and must be so well engineered as to ensure medics are
      not given a legal licence to kill the next generation.
  •   Article 26(4) lacks the legal safeguards required to balance the rights of this
      generation and those of generations to come.
  •   Article 43(1), on Economic and social rights, states that, (1) Every person has the
      right— (a) to the highest attainable standard of health, which includes the right
      to health care services, including reproductive health care.
  •   The World Health Organization defines health as ‘the state of complete Physical,
      Mental and Social well-being not merely the absence of disease or infirmity.
  •   Effectively, Article 26(4), which states that abortion will be permitted where the
      life or health of mother is in danger, or by any other written law, allows abortion
      on demand.
  •   This legalises abortion on demand so that abortion can be legally procured for
      physical, mental and social reasons.
  •   It does not provide for the termination of pregnancy only to save the life of a
  •   In Article 43 (1) the bill of rights includes reproductive health care as a basic
      human right.
  •   Why the emphasis on reproductive health care, as something that is separate from
      “health care services”?
  •   It is important to note that “Reproductive healthcare” is a common euphemism for
      access to abortion on demand.
  •   Since the ratification of international treaties and conventions will be without the
      approval of our Parliament, there is a very high risk of foreign laws that promote
      “rights” recognized by others but not embraced by Kenyans becoming part of
      Kenyan Law through the backdoor.
  •   The morality of abortion is not a religious belief, any more than the morality of
      slavery, apartheid, rape, murder, larceny or arson is a religious belief.
  •   These are norms of the natural law of mankind and can be legislated even in a
      society that has no religion.
  •   We reject the Proposed Constitution of Kenya because it does not offer
      adequate protection to unborn children whose opportunity for life is
      threatened by non medical factors in society.
                                        VOTE NO!

15.   Legalising Homosexuality
  •   Article 33(2)(c) curtails Freedom of expression on the very vague grounds of
      ‘hate speech,’ yet sub-clauses (a), (b) and (d) adequately address what Kenyans
      usually call hate speech: “(a) Propaganda for war; (b) Incitement to violence; and
      (c) Advocacy of hatred that (i) constitutes ethnic incitement, vilification of others
      or incitement to cause harm, or (ii) is based on any prohibited ground of
      discrimination contemplated in Article 27(4).”
  •   Given the above, Article 33(2)(c) cannot be taken to be an innocent and positive
      law designed to prevent people from spreading the hatred of others.
  •   Given that international laws and conventions are going to be part of Kenyan law,
      we must look at how this ‘hate speech’ provision has been interpreted by courts
      around the world.
  •   Hate speech legislations have been used by fanatical secularists, including
      homosexuals and lesbians, to push their hostility against religious orthodoxy and
      the integrity of scripture, and to treat with contempt values such as ‘morality’
      usually advanced by faith communities.
  •   Hate speech legislations are used to veto any criticisms of the homosexual
      movement, especially using teachings of the bible. That way, homosexuals can
      attack heterosexuals unchallenged and, by so doing, force society to accept their
      thinking, since, as Fyodor Dostoevsky said, "If there is no God, everything is
  •   Ake Green, a Pentecostal pastor in Sweden, was sentenced on June 29, 2004, to
      30 days in jail for hate speech against homosexuals for his church sermon on July
      20, 2003, which focused on biblical teachings that condemn homosexual
  •   Hugh Owens, who placed a newspaper advert that listed four Bible references
      opposing homosexuality, was found guilty and ordered to pay damages in mid
      1997 of having “discriminated against three gay men,” a hate crime in Canada
      under Saskatchewan’s Human Rights Code.
  •   In 2004, eleven Philadelphia Christians were arrested for peacefully passing out
      Christian literature at a gay pride event and charged under Pennsylvania’s hate
      crimes law which has “sexual orientation” as a victim category. Fortunately, the
      charges were later dismissed by Philadelphia County Court of Common Pleas as
      being without merit.
  •   These dynamics indicating that the Bible itself constitutes the expression of
      hatred, or that Bible verses can be interpreted as prohibited hate speech, are cause
      for grave concern.
  •   We reject the Proposed Constitution of Kenya because it will criminalise
      Christian values, and it will effectively be used to gag churches from
      preaching against evils like homosexuality and lesbianism.

                                        VOTE NO!

16.    Punitive Costs of Bloated Bureaucracy

Expansion of Parliament from 210 to 416 members and 2 speakers (total 418).
           Nat. Assembly: 350 members (Article 97)
                  • 290 members elected in the constituencies
                  • 47 women members elected in the counties
                  • 12 members nominated by political parties
                  • 1 Speaker
           Senate: 68 members (Article 98)
                  • 47 elected
                  • 16 women nominated by political parties
                  • 2 youth
                  • 2 persons with disabilities
                  • 1 Speaker
   • 47 Governors
   • 47 Deputy Governors
   • 47 Speakers
   • 47 Executive Committees.
   • 47 County Assemblies (representing about 3,800 wards)
   • Apart from the new offices in counties, the proposed Constitution sets up 11
      commissions each with a secretariat of at least 50 employees.
   • Where will the money to pay all these people’s salaries and allowances and to run
      their offices come from?
   • Already our public primary schools have an acute shortage of 67,000 teachers and
      we are unable to employ more from the many unemployed Kenyan teachers?
   • Our public hospitals are under equipped and understaffed to the extent that many
      dispensaries that were built using money from the Constituency Development
      Fund are not operational.
   • Already Kenyans are among the most highly taxed people on Earth.
   • Over 70% of public revenue comes from flat-rate taxes on basic consumables and
      not from graduated income tax. Hence, the poor spend a higher percentage of
      their earnings on tax.
   • Instead of setting up and running a bloated bureaucracy Kenyans should be
      embracing public sector cost-cutting and other austerity measures to facilitate
      savings that will build up a capital base for development.
   • We reject the Proposed Constitution of Kenya because it will raise taxes and
      the cost of living.

                                     VOTE NO!

17.   Poor Representation and Balkanisation
  •   The Review Act did not give the Committee of Experts the mandate to arbitrarily
      create the 47 counties in Article 6(1) and in the First Schedule of the PCK, using
      the old 46 districts and Nairobi Province, whose functions were not the same as
      those of the created counties.
  •   The old districts were created largely along ethnic consideration, and purely as
      administrative units of the central government.
  •   The old districts were never intended to be units of devolved governance.
  •   The use of the old districts has created counties that don’t link representation to
      important factors like population and geographical size.
  •   Fair representation would require the splitting of huge counties like Kiambu,
      Meru, Bungoma, Kakamega, Kisii and Nairobi.
  •   Even though the old districts were based largely on dominant ethnic identities,
      they still served minorities because they were appointive units of service delivery
      by the central government and staff were deployed across the republic.
  •   Counties are elective units where, given the ethnic nature of Kenyan politics,
      minorities will be excluded from the mainstream of public affairs.
  •   Already, fearing marginalisation in the new elective units where they belong, the
      people of Kuria, Teso and Mount Elgon are asking to be considered as special
      cases deserving counties of their own.
  •   The small ethnic groups fear that they might never get representation either as
      senators or as county governors if they are lumped together with the dominant
  •   Article 235 says that, following legislation, counties will be responsible for:
           • establishing and abolishing offices in its public service;
           • appointing persons to hold or act in those offices, and confirming
               appointments; and
           • exercising disciplinary control over and removing persons holding or
               acting in those offices.
  •   How will we guard against ‘ethnic cleansing’ in public sector employment and in
      other opportunities given that the county public service will be established and
      run by the local counties?
  •   Local politicians will most likely favour the “sons of the soil” over those from
  •   Ideally, all constituencies should have become districts for purposes of service
      delivery and the point at which the Public Service Commission will deploy county
      civil servants answerable to the local elected executive.
  •   That would not only guard against ethnic cleansing in the largely ethnic counties,
      it’ll also bring services closer to the people, and nurture the national unity and
      integration required to make Kenya great.
  •   We reject the Proposed Constitution of Kenya because it will lead to Kenya’s
      balkanisation and fragmentation.

                                     VOTE NO!

18.   Destabilisation through Reckless Land Reforms
  •   Trust land is currently held by local authorities on behalf of the people resident in
      the area.
  •   But the PCK will convert it into community lands, so defined on the basis of
      ethnicity or cultural identity, meaning land belongs to tribes.
  •   This will be a tool for fragmentation and Balkanisation of the country. It might
      also lead to the dispossession of those who genuinely acquired land in areas away
      from their ancestral homes.
  •   The potential for conflict is especially high in areas that are traditionally claimed
      by aboriginal tribes that were displaced by colonialists but are currently occupied
      as cosmopolitan Government settlement schemes.
  •   Classifications like “Ancestral Land” are going to cause social unrest since all
      land in private ownership today in Kenya was at one time ancestral land, or can be
      traced to public land.
  •   There is no time limit to how far back we can go in the period to be investigated,
      and this is a recipe for national land wars given how Kenyans have settled since
  •   What happens where land has been occupied by other Kenyans yet the National
      Land Commission has powers to reopen closed cases?
  •   The Chapter is simply going to resurrect historical conflicts over land, create
      social unrest, and reverse our development.
  •   If the aim was to reclaim land that was fraudulently acquired by the privileged,
      this can be done through legislation.
  •   Whereas the target of most modern societies is to take people off the land into
      well managed urban centres, where they can easily be provided with modern
      amenities, the Proposed Constitution is guided by the backward/regressive
      philosophy that EVERYONE should have a piece of land to call his/her own.
  •   There is no provision for expanding arable land through irrigation and similar
  •   In 67(e, h) the National Land Commission has rogue powers that can be used as a
      political tool of harassing those the state finds undesirable.
  •   The powers to decide land use can be used to snatch land from people, especially
      the poor (67(h)).
  •   63(d) is a time bomb for land clashes
  •   Article 65(3)(a): Shouldn't there be incentives for foreigners to partner with
      citizens, at least for purposes of investment in land?
  •   There is no provision for expanding arable land through irrigation and similar
  •   In 67(e, h) the National Land Commission has rogue powers that can be used as a
      political tool of harassing those the state finds undesirable.
  •   The powers to decide land use can be used to snatch land from people, especially
      the poor (67(h)).
  •   63(d) is a time bomb for land clashes
  •   Article 65(3)(a): Shouldn't there be incentives for foreigners to partner with
      citizens, at least for purposes of investment in land?

  •   Reference to intellectual property in the chapter on land in 69(1)(c) is misplaced.
  •   The Chapter on land captures our short-sighted unscientific engagement with the
      realities we live in today.
  •   The same applies to our preoccupation with the mere redistribution and not the
      critical creation of new wealth.
  •   We reject the Proposed Constitution of Kenya because it will lead to Kenya’s
      balkanisation and fragmentation.

                                      VOTE NO!

19.   State Security Concerns
  •   Article 35(1)(a) & (3) endanger State security.
  •   The right to information held by the State should be checked by parliamentary
      legislation to protect necessary State and personal secrets.
  •   Sensitive personal information in State custody includes medical records in public
  •   This article negates the secrecy requirements in the oaths taken in the Fifth
  •   Provision should have been made requiring legislation as provided for in Article
      24(1) that will allow the enjoyment of this right without endangering State
  •   Article 24(5) takes on an ominous threat of the possibility of creating instability
      when read with Articles 37 and 41(2)(c & d).
  •   The phrase in 24(5) that “... a provision in legislation may” restrict the Police and
      Military from engaging in strikes or demonstrations is totally inadequate.
  •   Which legislation is referred to here?
  •   The word 'may' implies that Parliament is not under obligation to make that law.
  •   The article ignores other disciplined forces in Kenya, including the National
      Intelligence Service, the Kenya Prisons Service, the Kenya Forest Service, the
      Kenya Wildlife Service and the National Youth Service.
  •   So, in the event of the Proposed Constitution of Kenya becoming law, and in the
      absence of the said legislation, the police and military will, like any Kenyan
      worker, be constitutionally be entitled to go on strike, hold demonstrations, etc.
  •   The restrictions in Article 24(5) should clearly be mandatory and extended to all
      disciplined forces in the service of the State.
  •   In the interim period, when Parliament has not enacted the said legislation
      limiting the enjoyment of these rights, the said rights must be suspended for the
      said categories of citizens.
  •   Lifting Presidential immunity in Article 143(4) for “any treaty which Kenya is
      party and which prohibits such immunity” will emasculate Kenya’s Commander
      in Chief.
  •   Ideally, the immunity should only be lifted for proven crimes against humanity.
  •   We reject the Proposed Constitution of Kenya because it puts the security of
      the country at risk.
                                         VOTE NO!

20.   Foreign Words and Missing Clauses
  •   The Proposed constitution has the following foreign words:
         – Article 24(2)(b) the word ‘fundmental’
         – Article 92(i) – the word ‘politcal’
         – Article 95(4)(c) - ‘expediture’
         – Article 115(3) the word ‘amendeds’
         – Article 173(4) the word ‘Judicary’
         – Article 216(4) the word ‘comission’
         – Article 250(8) the word ‘indepenedent’
         – Article 254(3) the word ‘commisssion’
         – Third Schedule – Oath… for a Cabinet Secretary the word ‘Presidentfor’

  •   There are grammatical and other mistakes in the Proposed Constitution of Kenya
      which confuse the meaning of certain clauses. Examples include:
          – Article 163(1) the phrase “There is established the Supreme Court, which
              shall consists of”
          – Article 260 the phrase ‘“county legislation” means a law made by a county
              government or under under authority conferred by a county Assembly’;
  •   Clause 234(3) has two clauses numbered (b). This renders the interpretation of
      this particular clause impossible when reference is made to clause 234(3)(b).
      Which one of the two would be acceptable?
  •   The following clauses are missing from the Proposed Constitution of Kenya:
          – Article 41(3): Sub-clauses (a), (b), (c) and (d) are missing;
          – Article 103(1)(e)(i) refers to a Clause 2 which is missing;
          – Fourth Schedule, Part 1: Clause (27) is missing
          – Sixth Schedule, Part 6: Clause (27)(2) is missing
  •   The numerous spelling and grammatical errors will embarrass the country and
      make it difficult to interpret this constitution.
  •   Mischievous characters can exploit the missing clauses to insert harmful
      provisions once it is ratified at the referendum.
  •   We reject the Proposed Constitution of Kenya because it has glaring

                                     VOTE NO!

21.   Hostility to Future Amendments or Replacement
  •   Chapter Sixteen unnecessarily and dangerously makes the Proposed Constitution
      of Kenya practically impossible to amend.
  •   A Constitution that is practically impossible to amend is dangerous as it may
      inspire aggrieved parties to resort to unconstitutional means of changing the

•   Some people have mistakenly argued that the high threshold required to amend
    the Proposed Constitution protects it from being mutilated by selfish interests, the
    way the Independence Constitution was.
•   The measures taken to secure the document, by literally clamping an external
    padlock on it, and not on working to establish a strong internal structures and
    mechanisms that would secure the document, have taken away the sovereignty of
    Kenyans to self-determination.
•   This is a sad admission by the CoE that they failed to establish a constitutional
    framework of institutional controls, checks and balances that would secure the
    new order.
•   Ideally, a Constitution is protected by establishing independent and strong
    institutions that are robust enough not to be manipulated to effect self-serving
    amendments, but that, at the same time, can allow progressive amendments to be
    easily made to meet emerging national needs.
•   Flexibility, not rigidity is the hallmark of a good constitution.
•   Despite its many weaknesses, the flexibility of the Current constitution has
    allowed us to make incremental positive change.
•   The current Constitution allowed us to re-introduce multiparty democracy and set
    the Presidential Term Limits.
•   It also allowed us to entrench the National Peace and Reconciliation Accord that
    established the Grand Coalition Government.
•   Even the making of the new constitution is testimony to the progressive nature of
    the current Constitution that it anticipated a time when it could not be relevant,
    and so it provided a clear mechanism for its replacement.
•   The Proposed constitution is so rigid that it does not anticipate its own
•   At the very best, it only allows us to amend it through a very punitive process.
•   The provision for amendments by popular initiative (Article 256) is impossible to
    realise because of the unrealistic threshold and the winding process that has no
    clear timelines and that places no obligation on the State to facilitate the
    mandatory referendum required for amending ‘super clauses’.
•   Amendment by popular initiative is too expensive for an average Kenyan,
    meaning only the rich and mighty will enjoy the provision.
•   Further, since only the literate can append signatures illiterate citizens will also be
    discriminated against.
•   Signature here cannot be interpreted to include fingerprints because official
    documents usually require both.
•   Verification of the signatures will be virtually impossible since databases are held
    in fingerprints.
•   The moment the Proposed Constitution of Kenya is ratified, the very high
    threshold for amending it will take away the sovereignty of present and future
    generations of Kenyans by undemocratically limiting their right to self-
•   Note that Article 2(3) states: “The validity or legality of this Constitution is not
    subject to challenge by or before any court or other State organ.”
•   Do courts have the power to interpret this Constitution?

•   How will courts interpret the Constitution given the many contradictions that put
    clauses on a collision course with others, if these cannot be challenged?
•   Does this mean that any challenge to this constitution is an act of treason?
•   That means that if it becomes law, Kenyans will serve it instead of it serving
    them. Yet, as the holy book says, Laws are made for man not man for the law.
•   We reject the Proposed Constitution of Kenya because it will lock Kenyans
    into a constitutional prison by literally denying us the right to self
                                      VOTE NO!

Part V: Yet More Hidden Dangers

22.   Problems with Representation
         •   The proposal of the IIBRC on boundaries in Article 89(9) should be
             vetted by Parliament to avoid gerrymandering, where self-serving
             constituencies can be created clandestinely.
         •   The Elections date given as the second Tuesday in August (Articles 101,
             136(2)(a), 177(1)(a), 180(1)) in the PCK is untenable.
         •   During an election year, it will be untenable to read the budget in June and
             debate the same until October because:
                i.   It will clash with the campaign period;
               ii.   It will require two different Parliaments to debate the budget.
         •   The budget reading date cannot be changed from June given Kenya’s
             commitments to read its budget simultaneously with the other members of
             the East African Community.

23.   Imposition of “other written law”
  •   What’s the meaning of the words ‘other written law’ that appear in Articles 26
      (3,4), 159(3)(c)?
  •   Which are these ‘other laws’ that are not Acts of Parliament?
  •   The phrase “other written law” erodes the exclusive legislative powers of our
      Parliament which allows the making of Kenyan law via Acts of Parliament.
  •   The clause allows the introduction of laws that permit abortion and homosexuality
      and some “rights” rejected by the majority of Kenyans through international
      treaties and conventions that will be ratified by the Executive without the
      oversight of our Legislature.

24.   Dangerous Marriage Laws

  •   Article 45(3) read with 2(4) and 24(4) technically outlaws polygamy for non
  •   What does the outlawing of polygamy mean for African culture which recognises
      it as a legitimate thing.
  •   Article 2(4) is clear that: Any law, including customary law, that is inconsistent
      with this Constitution is void to the extent of the inconsistency, and any act or
      omission in contravention of this Constitution is invalid.
  •   Article 45(3) read with 68(c)(iii) demands equal sharing of family land with the
      woman in the unfortunate event of a divorce without consideration of peoples
      cultures, except for Muslims who are exempted in 24(4).
  •   Will women who are married and have to be divorced due to misconduct like
      adultery be entitled to half the share of family land?

  •   And after she gets the land, what will stop the woman from marrying her lover
      and inviting him to live with her on that piece of land.
  •   Article 45(3) opens the door wide open for gold-digger's to target rich partners,
      get married to them, and divorce them to get half the family property without
      consideration of what each has contributed as the law requires today.

25.   License for Pornography

  •   Article 33(1)(b) read with 34(2) is an open and broad license for pornography.
  •   Why would we set in place a law 34(2) that forbids the State from intervening
      under any circumstances to regulate the content of what is published?
  •   Are we after freedom or anarchy?

26.   Uniforms
  •   Article 27(4) states that the State shall not discriminate, among others, on the
      basis of ‘dress’.
  •   This means that compelling people to wear uniforms, demanding decent dressing,
      or making any demands on how people should dress will be outlawed.
  •   The first causality will definitely be schools where some student’s might want to
      enjoy this ‘right’ by refusing to wear uniforms and the teachers will be helpless to
      do anything about it since Article 2(3) is categorical that: “The validity or legality
      of this constitution is not subject to challenge by or before any court or other State

27.   Currency
  •   Article 231(4) states that: “Notes and coins issued by the Central Bank of Kenya
      may bear images that depict or symbolise Kenya or an aspect of Kenya but may
      not bear the portrait of any individual.”
  •   Though Clause 34 of the Sixth Schedule says that: “Nothing in Article 231(4)
      affects the validity of coins and notes issued before the effective date,” the danger
      still remains that a government may use this as a loophole to engage in an
      expensive issuance of new currency.
  •   Many countries, including the USA, carry portraits of their national icons on their
  •   Why should Kenya be denied the same?
  •   If the desire was to restrict future presidents going onto expensive ego trips to put
      their faces on the national currency, why not qualify it to read “not bear the
      portrait of any living individual?”

28.   Dismissal of Parliament by the Chief Justice
  •   Article 261 (7) states that: “If Parliament fails to enact legislation in accordance
      with an order under clause (6) (b), the Chief Justice shall advise the President to
      dissolve Parliament and the President shall dissolve Parliament.
  •   That is unacceptable.
  •   Unless the principle of separation of powers means absolutely nothing, there is no
      way the Judiciary can give directions to Parliament.
  •   A validly elected Parliament cannot be send parking through a judicial process.
  •   Under the envisaged Presidential system, the president has no powers to dissolve
  •   Parliaments in a Presidential system serve a fixed term and are never dissolved.
  •   Such misconceptions of the basic functions of the various arms of government
      under a presidential system are unacceptable.
  •   There is no room for a hangover from the Parliamentary system that is being

29.   Rights of Children

  •   In Article 53, the Constitution gives rights to children but doesn’t give any to
  •    Article 14(4) states that “A child found in Kenya who is, or appears to be, less
      than eight years of age, and whose nationality and parents are not known, is
      presumed to be a citizen of Kenya by birth.
  •   Why are we throwing our birthright to foreigners?
  •   Are there no instruments to give legal protection to such children without
      necessarily messing up with our birthright?
  •   As soon as we allow this there will be a flood of children coming in at a time
      when we cannot even take care of our own.
  •   Article 17(2) that talks of revoking such citizenship is not enforceable as it will
      require full-time and life-long monitoring, and a lot of luck.
  •   Further, around the world, citizenship by birth is not revocable. Are we making it
      possible to revoke our citizenship by birth?
  •   Citizenship by birth is the highest form of citizenship and it allows one to access
      any office in the land, including being president and Commander-in-Chief.
  •   This is unacceptable, especially given the volatile region we live in that has so
      many refugees seeking to be Kenyan citizens.

30.   Detention of citizens

  •   Article 51 institutionalises detention without trial.
  •   There is no way this great evil that destroyed so many Kenyan lives and
      livelihoods can be entertained by a constitution that claims to be progressive.
  •   There is no room for detention in the new democratic Kenya we crave.

  •   This singular issue shows that the Proposed Constitution of Kenya is not the
      document of the new democratic order.
  •   This document is a very cunning masquerade.
  •   Say a loud NO! to detention!

31.   Burden of Public Debt on Future Generations
  •   Article 201(c) states that: “the burdens and benefits of the use of resources and
      public borrowing shall be shared equitably between present and future
  •   This license for unlimited borrowing because future generations will pay three
      centuries down the line threatens the rights of future generations to self
      determination, and is in clear contravention of the both common sense and
  •   There is no way we can consciously burden the future.
  •   We musty live in such a manner that we make it easy for future generations to
      enjoy life to its fullest.

32.   Potential for abusing the Nolle Prosequi
  •   The powers given to the Director of Public Prosecutor (DPP) in Article 157 to
      terminate cases before judgment can still be abused in this constitution
  •   Where the DPP decides to terminate a proceeding that was initiated by the State,
      the courts should acquit the accused of the charges.
  •   This will cure the possibility of the state using the courts as political tools to
      punish politically undesirable elements by maliciously charging them in courts on
      frivolous grounds where they are circuitous and punishing prosecutions only for
      the DPP to move in at the eleventh our to terminate the trials.


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