Coalition for Constitutional Reforms Kenya [CCR-Kenya]: 2008

NATIONAL CONSTITUTIONAL CONFERENCE
THE DRAFT CONSTITUTION OF
KENYA 2004
AD0PTED BY THE NATIONAL CONSTITUTONAL CONFERENCE
ON 15TH MARCH 2004
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ARRANGEMENT OF ARTICLES
PREAMBLE
CHAPTER ONE
SOVEREIGNTY OF THE PEOPLE AND SUPREMACY OF THE CONSTITUTION
1. Sovereignty of the people
2. Supremacy of the Constitution
3. Defence of the Constitution
CHAPTER TWO
THE REPUBLIC
4. Declaration of the Republic
5. Territory
6. Devolution
7. Capital
8. Languages
9. State and religion
10. National symbols
11. National days
CHAPTER THREE
NATIONAL VALUES, PRINCIPLES AND GOALS
12. National values, principles and goals
CHAPTER FOUR
CITIZENSHIP
13. General principles
14. Retention of existing citizenship
15. Acquisition of citizenship
16. Citizenship by birth
17. Citizenship and marriage
18. Citizenship by naturalization
19. Adopted children and foundlings
20. Dual citizenship
21. Deprivation of citizenship
22. Residence
23. Responsibilities of a citizen
24. Legislation on citizenship
CHAPTER FIVE
CULTURE
25. Principles concerning culture
26. National Commission on Culture
27. Cultural day
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CHAPTER SIX
THE BILL OF RIGHTS
Part I – General provisions relating to the Bill of Rights
28. Fundamental rights and freedoms
29. Application of the Bill of Rights
30. Implementation of rights and freedoms
31. Enforcement of the Bill of Rights
32. Authority of the court to uphold and enforce the Bill of Rights
33. Limitation of rights
Part II – Fundamental rights and freedoms
34. Right to life
35. Equality
36. Freedom from discrimination
37. Gender
38. Older members of society
39. Youth
40. Children
41. Family
42. Persons with disabilities
43. Minorities and marginalized groups
44. Human dignity
45. Freedom and security of the person
46. Slavery, servitude and forced labour
47. Privacy
48. Freedom of religion, belief and opinion
49. Freedom of expression
50. Freedom of the media
51. Access to information
52. Freedom of association
53. Assembly, demonstration, picketing and petition
54. Political rights
55. Freedom of movement and residence
56. Refugees and asylum
57. Freedom of trade, occupation and profession
58. Protection of right to property
59. Labour relations
60. Social security
61. Health
62. Education
63. Housing
64. Food
65. Water
66. Sanitation
67. Environment
68. Language and culture
69. Consumer rights
70. Fair administration
71. Right not to obey unlawful instructions
72. Access to courts
73. Rights of arrested persons
74. Fair trial
75. Rights of persons held in custody
76. State of emergency
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CHAPTER SEVEN
LAND AND PROPERTY
77. Principles of land policy
78. Vesting and classification of land
79. Public land
80. Community land
81. Private land
82. Property rights of spouses
83. Landholding by non-citizens
84. Regulation of land use
85. National Land Commission
86. Legislation on land
CHAPTER EIGHT
ENVIRONMENT AND NATURAL RESOURCES
87. Principles and obligations on the environment
88. Protection of the environment
89. Conservation of the environment
90. Enforcement of environmental rights
91. Utilization and development of natural resources
92. Agreements relating to natural resources
93. National Environment Commission
CHAPTER NINE
LEADERSHIP AND INTEGRITY
94. Responsibilities of leadership
95. Assumption of office
96. Conduct of State officers
97. Finances of State officers
98. Restriction on activities
99. Ethics and Integrity Commission
100. Legislation on leadership
CHAPTER TEN
REPRESENTATION OF THE PEOPLE
Part I –The Electoral System and Process
101. General principles
102. Elections
103. Registration as a voter
104. Voting
105. Independent candidates
106. Unopposed candidates
107. Representation on international bodies
Part II – The Electoral and Boundaries Commission
108. Establishment and functions
109. Delimitation of constituencies
110. Fixing of administrative boundaries
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Part III – Political Parties
111. Basic principles
112. Regulation
113. Political Parties Fund
114. Purposes of the Fund
115. Other sources of funds
116. Accounts and audit
117. Supervision
118. Party discipline
119. Restriction on use of public resources
CHAPTER ELEVEN
THE LEGISLATURE
Part I – Establishment and role of Parliament
120. Establishment
121. Exercise of sovereignty
Part II – Composition and membership of Parliament
122. Membership of the Senate
123. Membership of the National Assembly
124. Qualifications and disqualifications of members
125. Election of members of Parliament
126. Vacation of office of member of Parliament
127. Determination of questions of membership
Part III–Officers of Parliament
128. The Speakers and Deputy Speakers of Parliament
129. Presiding in Parliament
130. Leader of the Opposition
131. Clerk and staff of Parliament
Part IV – Legislation and Procedure in Parliament
132. Exercise of legislative powers
133. Money Bills
134. Consideration by the other House
135. Presidential assent and referral
136. Coming into force of laws
137. Right to petition Parliament
138. Quorum
139. Official language in Parliament
140. Voting in Parliament
141. Decisions of Senate
142. Regulation of procedure
143. Power to call for evidence
144. Public access and participation
145. Powers, privileges and immunities
Part V – Miscellaneous
146. Registry of Enactments
147. Seat of Parliament
148. Life and prorogation of Parliament
149. Parliamentary Service Commission
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CHAPTER TWELVE
THE EXECUTIVE
Part 1 – Principles and Structure of the National Executive
150. Principles of executive authority
151. Structure of the National Executive
Part II – The President and Deputy President
152. Authority of President
153. State functions of President
154. Legislative functions of President
155. Decisions of President
156. Right to vote and timing of presidential elections
157. Qualifications and disqualifications for election as President
158. Procedure at presidential election
159. Questions as to validity of presidential election
160. Assumption of office of President
161. Term of office of President
162. Protection from legal proceedings
163. Removal of President on grounds of incapacity
164. Impeachment and removal of President
165. Vacancy in the office of President
166. Presidential powers of mercy
167. Office of Deputy President
168. Vacancy in the office of Deputy President
169. Functions of the Deputy President
170. Death before assuming office
171. Remuneration and benefits of President and Deputy President
Part III – The Prime Minister and Cabinet
172. Prime Minister
173. Appointment of Prime Minister
174. Term of office
175. Resignation of Prime Minister
176. Dismissal of Prime Minister
177. Ministers and Deputy Ministers
178. Secretary to the Cabinet
179. Decisions, responsibility and accountability of the Cabinet
180. Assignment of functions
181. Principal Secretaries
CHAPTER THIRTEEN
JUDICIAL AND LEGAL SYSTEM
183. Principles and structure of judicial power
184. Hierarchy and administration courts
185. Independence of the Judiciary
186. The Supreme Court
187. Jurisdiction of the Supreme Court
188. Court of Appeal
189. Jurisdiction of the Court of Appeal
190. High Court
191. Jurisdiction of the High Court
192. Supervisory jurisdiction of the High Court
193. Appointment of judges
194. Qualifications for appointment of judges
195. Tenure of office of judges
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196. Removal from office
197. Subordinate Courts
198. Kadhis’ Court
199. Jurisdiction of the Kadhis’ court
200. Judicial Service Commission
201. Functions of the Judicial Service Commission
202. Attorney-General
203. Director of Public Prosecutions
204. Public Defender
205. Removal from office
CHAPTER FOURTEEN
DEVOLVED GOVERNMENT
Part I –Structure and Principles of Devolved Government
206. Objects of devolution of government
207. Principles of devolved government
208. Co-operation between government at the different levels
209. Assignment of functions
210. Conflict of laws
Part II –Regions
211. Regional governments
212. Regional legislative assemblies
213. Regional executive committee
214. Election of regional premier and deputy regional premier
215. Election of mayor and deputy mayor of Nairobi
216. Functions of regional executive committees
Part III –Districts
217. District governments
218. Legislative authority of district councils
219. Election of district councillors
220. District executive committee
221. Election of district governor and deputy district governor
222. Functions of district executive committee
Part IV –Locations
223. Locational governments
224. Locational councils
225. Locational administrator
Part V –General
226. Terms of office
227. Power to summon witnesses
228. Public access and participation, and powers, privileges and immunities
229. Leadership and integrity
230. Provision to be made by Act of Parliament
Part VI –Interim provisions
231. Qualification for election or appointment to devolved government bodies
232. Procedures and internal organization of devolved government bodies
233. Election of mayor and deputy mayor of Nairobi
234. Election of district councillors
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235. Election of locational councils and locational administrators
CHAPTER FIFTEEN
PUBLIC FINANCE
Part I –Principles and Objects of Public Finance Management
236. Principles and objects of public finance and revenue management
237. Imposition of tax
238. Taxation
Part II –Taxation
239. Devolved governments’ shares of national funds
240. Legislation
Part III –Funds for holding Public Money
241. Consolidated Fund
242. Withdrawals from Consolidated Fund
243. Revenue Funds for devolved governments
244. Contingency Fund
Part IV –Borrowing
245. Borrowing by Government
246. Borrowing by devolved governments
247. Public debt
248. Loan guarantees by governments
Part V –Budget
249. Principles
250. National annual estimates
251. Appropriation Bills
252. Annual budget of devolved governments
Part VI –Financial Management
253. Procurement of public goods and services
254. Accounts and audit of public institutions
255. Treasury control
256. Controller of Budget
257. Auditor-General
Part VII –Institutions
258. National Revenue Authority
259. Commission on Revenue Allocation
260. Central Bank of Kenya
261. Functions of Central Bank
262. Economic and Social Council
CHAPTER SIXTEEN
THE PUBLIC SERVICE
Part I – Public Service
263. Values and principles of public service
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264. Public Service Commission
265. Powers and functions
266. Staffing of devolved governments
267. Protection of public officers
268. Teachers Service Commission
269. Health Services Commission
Part II – The Kenya Correctional Service
270. Establishment
271. Director-General
CHAPTER SEVENTEEN
NATIONAL SECURITY
Part I – National Security Organs
272. Principles and objects
273. National security organs
274. National Security Council
275. Functions of the National Security Council
Part II – The Kenya Defence Forces
276. Establishment
277. Command
Part III – The National Intelligence Service
278. Establishment
279. Establishment of the National Intelligence Council
Part IV – The Kenya Police Service
280. Establishment
281. Objects and functions
282. Inspector-General
283. Police Service Commission
Part V – The Administration Police Service
284. Establishment
285. Functions
286. Commandant-General
CHAPTER EIGHTEEN
CONSTITUTIONAL COMMISSIONS
287. Application of Chapter
288. Objects and independence of Commissions
289. Incorporation
290. Composition of Commissions
291. Staff of Commissions
292. General functions of Commissions
293. Proceedings of Commissions
294. Removal from office
295. Funds of Commissions
296. Annual and other reports
297. Additional constitutional Commissions
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298. Commission on Human Rights and Administrative Justice
299. Commission on the Implementation of the Constitution
300. Gender Commission
301. Salaries and Remuneration Commission
CHAPTER NINETEEN
AMENDMENT OF THE CONSTITUTION
302. Amendment of the Constitution
303. Amendment by Parliament
304. Amendment by the people
CHAPTER TWENTY
GENERAL PROVISIONS
305. Enforcement of the Constitution
306. Construing the Constitution
307. Definitions
SCHEDULES
First Schedule Regions, districts and boroughs
Second Schedule National symbols
Third Schedule National oaths and affirmations
Fourth Schedule Distribution of functions between the Government and the devolved Levels of
Government
Fifth Schedule Taxation powers
Sixth Schedule Legislation to be enacted by Parliament
Seventh Schedule Transitional and consequential provisions
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PREAMBLE
We, the people of Kenya –
ACKNOWLEDGING the supremacy of the Almighty God of all creation:
HONOURING those who heroically struggled to bring freedom and justice to our land:
PROUD of our ethnic, cultural and religious diversity and determined to live in peace and unity as one
indivisible sovereign nation:
RESPECTFUL of the natural environment that is our heritage, and determined to sustain it for the
benefit of future generations:
COMMITTED to nurturing and protecting the well-being of the individual, the family and the
community:
RECOGNISING the aspirations of all Kenyans for a government based on the essential values of
freedom, democracy, social justice and the rule of law:
EXERCISING our sovereign and inalienable right to determine the form of governance of our country
and having participated fully in the making of this Constitution:
ADOPT, enact and give this Constitution to ourselves and to our future generations.
GOD BLESS KENYA
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CHAPTER ONE
SOVEREIGNTY OF THE PEOPLE AND SUPREMACY OF THE CONSTITUTION
Sovereignty of the people
1. (1) All sovereign authority belongs to the people of Kenya and may be exercised only in
accordance with this Constitution.
(2) Authority is delegated to the following State organs, which shall perform their
functions in accordance with this Constitution –
(a) Parliament and the legislative structures in the devolved governments;
(b) the national executive and the executive structures in the devolved
governments;
(c) the Judiciary and other independent tribunals; and
(d) the constitutional Commissions and State offices.
Supremacy of the Constitution
2. (1) This Constitution is the supreme law of the Republic and binds all State organs at all
levels of government and all persons throughout Kenya.
(2) A law that is inconsistent with this Constitution is void to the extent of the
inconsistency and any action or omission in contravention of this Constitution is
invalid.
(3) A person, or a group of persons, may bring an action in the High Court for a
declaration that any law is inconsistent with, or is in contravention of, this
Constitution.
(4) If the High Court makes a declaration under clause (3), it may also make any order
necessary to give effect to the declaration.
Defence of the Constitution
3. (1) Every person has an obligation to respect and defend this Constitution.
(2) Any attempt to establish a system of government otherwise than in compliance with
this Constitution is unlawful.
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CHAPTER TWO
THE REPUBLIC
Declaration of the Republic
4. (1) Kenya is a sovereign Republic.
(2) The Republic is founded on principles of good governance through multiparty
democracy, participatory governance, transparency and accountability, separation
and devolution of powers, respect for human rights and fundamental freedoms and
the rule of law.
Territory
5. (1) Kenya consists of the territory recognized under international law.
(2) Kenya comprises the regions, districts and boroughs set out in the First Schedule.
(3) Each district and borough shall be divided into such locations, with such boundaries,
as are prescribed by an Act of Parliament.
Devolution
6. The sovereign authority of the people is exercised at –
(a) the national level;
(b) the regional level ;
(c) the district level; and
(d) the locational level.
Capital
7. (1) The capital of Kenya is Nairobi.
(2) All national State organs shall be decentralised to all regions.
Languages
8. (1) The national language of the Republic is Kiswahili.
(2) The official languages of the Republic are Kiswahili and English.
(3) The State shall respect, promote and protect the diversity of languages of the people
of Kenya and sign language.
(4) The State shall promote the development and use of Braille and other appropriate
modes of communication for persons with visual and other impairments.
State and religion
9. (1) State and religion shall be separate.
(2) There shall be no State religion.
(3) The State shall treat all religions equally.
National symbols
10. The national symbols of the Republic, as set out in the Second Schedule, are –
(a) the national flag;
(b) the national anthem;
(c) the coat of arms; and
(d) the public seal.
National days
11. The national days are –
(a) 1st June – Madaraka Day;
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(b) 20th October – Mashujaa Day; and
(c) 12th December – Jamhuri Day.
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CHAPTER THREE
NATIONAL VALUES, PRINCIPLES AND GOALS
National values, principles and goals
12. (1) The national values, principles and goals contained in this Chapter apply to all State
organs, State officers, public officers, citizens and private bodies whenever any of
them –
(a) applies or interprets this Constitution or any other law; or
(b) applies, makes or implements policy decisions.
(2) The State shall –
(a) promote national unity and develop the commitment of all citizens to the
spirit of nationhood and patriotism;
(b) recognise the diversity of the people and promote and protect the cultures of
its communities;
(c) promote the participation of the people in public affairs and facilitate the
sharing and devolution of power;
(d) ensure open and transparent government and accountability of State officers,
public officers, State organs and public authorities;
(e) take effective measures to eradicate all forms of corruption;
(f) ensure access of the people to independent, impartial, competent, timely and
affordable institutions of justice;
(g) recognise the role of civil society in governance and facilitate its role in
ensuring the accountability of government;
(h) protect and promote human rights and fundamental freedoms and enhance
the dignity of individuals and communities;
(i) ensure full participation of women, persons with disabilities, marginalized
communities and all other citizens in the political, social and economic life
of the country;
(j) implement the principle that not more than two-thirds of the members of
elective or appointive bodies shall be of the same gender;
(k) progressively implement the principle that at least five per cent of the
members of elective and appointive bodies shall be persons with disabilities;
(l) recognise the special responsibilities that the State, society and parents owe
to children and uphold the family and the institution of marriage;
(m) be committed to social justice and the realization of the rights of the people
of Kenya to basic needs and a secure environment;
(n) promote the development of, and recognise and enhance the role of, science
and technology;
(o) eliminate disparities in development between the various parts of the
country and sectors of society;
(p) manage national resources fairly and efficiently for the welfare of the
people;
(q) recognise its responsibilities to future generations of the people of Kenya,
by pursuing policies for the sustainable management of the environment;
and
(r) be a good citizen of Africa and of the world and commit itself to work for
international peace and solidarity.
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CHAPTER FOUR
CITIZENSHIP
General principles
13. Every citizen is –
(a) entitled to the rights, privileges and benefits of citizenship, subject to the
limits set out in this Constitution;
(b) entitled to a Kenyan passport and to any document of registration and
identification issued by the State to citizens; and
(c) subject to the duties and responsibilities of citizenship.
Retention of existing citizenship
14. Every person who was a citizen immediately before the effective date retains the same
citizenship status as from that date.
Acquisition of citizenship
15. (1) Citizenship may be acquired by birth, registration, or naturalization.
(2) Every person who was not a citizen immediately before the effective date but would
have been a citizen if this Constitution had been in force, is entitled, on application,
to be registered as a citizen.
Citizenship by birth
16. (1) Every person born in Kenya is a citizen if, at the date of the person’s birth, either the
mother or the father of the person is a citizen.
(2) A person born outside Kenya is a citizen if, at the date of the person’s birth, either the
mother or the father of the person is –
(a) a citizen who was born in Kenya; or
(b) a citizen by registration or naturalization.
(3) If either parent of a person died before that person was born, for all purposes of this
Chapter, that parent’s citizenship at the time of death applies as if that parent had
survived until the birth of that person.
Citizenship and marriage
17. (1) A person who has been married to a citizen for a period of at least seven years is
entitled, on application, to be registered as a citizen.
(2) Citizenship is not lost through marriage or the dissolution of marriage.
Citizenship by naturalization
18. A person who has been lawfully resident in Kenya for a continuous period of at least seven
years, and who satisfies the conditions prescribed by an Act of Parliament, may apply to be
naturalized as a citizen.
Adopted children and foundlings
(1) A child who is not a citizen and who is adopted by a citizen is entitled on application
to become a citizen.
(2) A child found in Kenya who appears to be less than eight years of age, and whose
nationality and parents are not known, is presumed to be a citizen by birth.
Dual citizenship
20. (1) A person who is a citizen does not lose citizenship by reason only of acquiring the
citizenship of another country.
(2) A person who as a result of acquiring the citizenship of another country ceased to be
a Kenyan citizen is entitled, on application, to regain Kenyan citizenship.
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(3) Parliament shall enact legislation providing for conditions upon which citizenship
may be granted to individuals, other than individuals referred to in clauses (1) and
(2), who are citizens of other countries.
Deprivation of citizenship
21. A person may be deprived of citizenship only if the person acquired citizenship by means of
fraud, false representation or concealment of any material fact.
Residence
22. (1) The following persons may enter and reside in Kenya if they comply with the
conditions prescribed by Parliament governing entry and residence –
(a) a former citizen;
(b) a foreign wife or widow or foreign husband or widower of a citizen; and
(c) a child of a citizen.
(2) Parliament shall enact legislation governing the entry into and residence in Kenya of
other categories of persons and providing for the status of permanent residents.
Responsibilities of a citizen
23. (1) In order to fulfil the national values, principles and goals, all citizens have the
responsibility to –
(a) acquire basic understanding of the provisions of this Constitution and
promote its ideals and objectives;
(b) uphold and defend this Constitution and the law;
(c) vote and become involved in other forms of political participation;
(d) engage in work, including home-making, for the support and welfare of
themselves and their families, for the common good and to contribute to
national development;
(e) develop their abilities to the greatest possible extent through acquisition of
knowledge, continuous learning and the development of skills;
(f) contribute to the welfare and advancement of the community where they
live;
(g) contribute to the welfare and advancement of the nation by paying all taxes
lawfully due;
(h) strive to foster national unity and live in harmony with others;
(i) promote democracy, good governance and the rule of law;
(j) promote family life and act responsibly in the context of the family;
(k) protect and safeguard public property from waste and misuse;
(l) protect the environment and conserve natural resources;
(m) co-operate with law enforcement agencies for the maintenance of law and
order;
(n) desist from acts of corruption; and
(o) understand and enhance the Republic’s place in the international
community.
(2) The responsibilities set out in clause (1) apply equally where appropriate to noncitizens.
Legislation on citizenship
24. Parliament shall enact legislation –
(a) prescribing procedures by which a person may become a citizen;
(b) providing for the voluntary renunciation of citizenship;
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(c) providing procedures for the deprivation of citizenship; and
(d) generally giving effect to the provisions of this Chapter.
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CHAPTER FIVE
CULTURE
Principles concerning culture
25. The State shall –
(a) promote understanding, tolerance and appreciation of diversity;
(b) respect, preserve, protect and promote the heritage of Kenya, and in
particular, its cultural, historical, religious, sacred, archaeological and other
significant sites and artefacts;
(c) promote –
(i) the development of all forms of education and equal opportunity
for individuals to attain the highest possible standard of education,
and maintain an education policy that enhances culture and cultural
values; and
(ii) all forms of national and cultural expression through literature, the
visual and performing arts, science, communication, information,
mass media, publications and libraries;
(d) support, promote and protect scientific and intellectual research, innovation
and application;
(e) support and promote the development of medical technology, preventive
medicine and the appropriate application of modern and traditional medical
practices;
(f) recognize the role of science and indigenous technologies and knowledge
and intellectual creativity in the development of the nation; and
(g) support, promote and protect indigenous knowledge, literature, art, oral
traditions, performing arts and other cultural heritage and the intellectual
property rights of the people of Kenya.
National Commission on Culture
26. (1) There is established the National Commission on Culture consisting of the
chairperson, two vice-chairpersons and seven other members.
(2) The functions of the Commission are to –
(a) advise on matters of policy and practice relating to culture;
(b) carry out and promote research into and documentation of the cultures of
Kenya, including national history and customary law;
(c) protect cultural sites and historic monuments for the benefit of the
communities for which those sites have significance, and for the nation;
(d) endeavour to secure the return of historically and culturally significant
relics, archeological finds, documents and other expatriated material culture
for the enrichment of Kenyan museums;
(e) enhance the sustainable use of the heritage and creativity of the nation for
tourism and other economic uses;
(f) promote and preserve Kiswahili, all languages of the people of Kenya and
sign language and Braille;
(g) establish criteria for recognition and honouring of national heroes and
heroines;
(h) encourage and develop the positive traditions of the nation in the support,
protection and care of disadvantaged and vulnerable members of society;
and
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(i) generally carry out the objectives of this Chapter.
Cultural day
27. The 26th day of December is designated as Utamaduni Day.
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CHAPTER SIX
THE BILL OF RIGHTS
Part I – General provisions relating to the Bill of Rights
Fundamental rights and freedoms
28. (1) This Bill of Rights is an integral part of Kenya’s democratic State and is the
framework for social, economic and cultural policies.
(2) The purpose of the recognition and protection of human rights is to preserve the
dignity of individuals and communities and to promote social justice and the
realization of the potential of all human beings.
(3) The rights and freedoms set out in this Chapter –
(a) belong to each individual and are not granted by the State;
(b) do not exclude other rights not mentioned in this Chapter, recognised or
conferred by law, except to the extent that they are inconsistent with this
Chapter; and
(c) are subject only to the limitations contemplated in this Chapter.
Application of the Bill of Rights
29. (1) The Bill of Rights applies to all laws and binds all State organs and all persons.
(2) Every person shall enjoy the rights and freedoms in the Bill of Rights, to the greatest
extent consistent with the nature of the right.
(3) When applying a provision of the Bill of Rights as required by clause (1), a court –
(a) shall develop the law to the extent that legislation does not give effect to that
right or freedom;
(b) shall adopt the interpretation that most favours the enforcement of a right or
freedom; and
(c) may develop rules of law to limit that right or freedom in a manner
consistent with Article 33.
(4) When interpreting the Bill of Rights, a court, tribunal or forum –
(a) shall promote the values that underlie an open and democratic society based
on human dignity, equality, equity and freedom; and
(b) shall promote the spirit, purport and objects of the Bill of Rights.
(5) When interpreting and applying a particular right or freedom, if the State claims that
it does not have the resources to implement the right or freedom, a State organ, court,
tribunal or forum shall be guided by the following principles –
(a) it is the responsibility of the State to show that the resources are not
available;
(b) in allocating resources, the State has an obligation to give priority to
ensuring the widest possible enjoyment of the right having regard to
prevailing circumstances, including the vulnerability of the groups or
individuals claiming the violation of their right; and
(c) a court, tribunal or the Commission on Human Rights and Administrative
Justice may not interfere with a decision by a State organ concerning the
allocation of available resources, solely on the basis that the court, tribunal
or forum or the Commission would have reached a different conclusion.
Implementation of rights and freedoms
30. (1) It is a fundamental duty of every State organ to observe, respect, protect, promote
and fulfil the rights and freedoms in this Chapter, as appropriate, in the exercise of all
their powers and functions.
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(2) The State shall take legislative, policy and other measures to achieve the progressive
realisation of the rights guaranteed under Articles 60, 61, 62, 63, 64, 65 and 66.
(3) Parliament and the Commission on Human Rights and Administrative Justice shall
establish standards for the achievement of the rights mentioned in clause (2).
(4) The State shall recognise and facilitate the role of civil society in the promotion and
protection of the rights and freedoms in the Bill of Rights.
(5) All public officers and State organs, and their employees have the responsibility to
equip themselves to understand and deal with the needs of special groups within
society including women, older members of society, persons with disabilities,
children, youth and members of minority and marginalized communities and of
particular ethnic, religious and cultural communities.
(6) The State shall fulfil all its international obligations in respect of human rights and
for that purpose the State shall –
(a) report on time to international human rights bodies on the implementation of
human rights treaties and other instruments;
(b) publish reports intended for submission by the State to international bodies
for a reasonable period and facilitate public discussion and debate on them
before the reports are revised and submitted; and
(c) facilitate submissions by civil society organizations to international human
rights bodies.
(7) The comments and recommendations of international bodies relating to the
international obligations of the State shall be disseminated to the public, and the
Government shall make a statement to Parliament on whether and how it intends to
implement those recommendations.
(8) The State shall establish the necessary machinery to give full effect to the provisions
of the Bill of Rights.
Enforcement of the Bill of Rights
31. (1) A person referred to in clause (2) has the right to complain to the Commission on
Human Rights and Administrative Justice, and to institute court proceedings, alleging
that a right in the Bill of Rights has been denied, violated, infringed or threatened.
(2) The persons who may complain to the Commission or institute court proceedings in
accordance with clause (1) are –
(a) a person acting in that person’s own interest;
(b) a person acting on behalf of another person who cannot act in their own
name;
(c) a person acting as a member of, or in the interest of, a group or class or
persons;
(d) a person acting in the public interest; and
(e) an association acting in the interest of one or more of its members.
(3) The Chief Justice shall make rules providing for court proceedings mentioned in
clause (1), which shall satisfy the following criteria –
(a) that the rights of standing provided for in this Article are fully facilitated;
(b) that formalities for starting proceedings are kept to the minimum, in
particular that the court shall, if necessary, be prepared to entertain
proceedings on the basis of informal documentation;
(c) that the court, while observing the rules of natural justice, shall not be
unreasonably restricted by technical requirements;
(d) that no fee may be charged for commencing proceedings under this Article;
and
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(e) that an organisation or individual with particular expertise may, with the
leave of the court, appear as a friend of the court.
Authority of the court to uphold and enforce the Bill of Rights.
32. (1) The High Court has jurisdiction to hear applications for redress for a violation of a
right contained in the Bill of Rights.
(2) Parliament shall enact legislation to give original jurisdiction in appropriate cases to
subordinate courts to hear applications for redress for a contravention of the Bill of
Rights.
(3) In any matter brought before it under Article 31, a court may grant appropriate relief,
including –
(a) a declaration of rights;
(b) a declaration of invalidity of any law that infringes the Bill of Rights and is
not justified in terms of Article 33;
(c) an order of compensation against the State or any person responsible for the
violation of the rights; and
(d) orders of judicial review.
(4) In proceedings against a public authority for a violation of human rights, a court may
not award costs against the plaintiff, or applicant, unless the court determines that the
case was frivolous, vexatious or devoid of merit.
Limitation of rights
33. (1) A right or freedom set out in the Bill of Rights may be limited only –
(a) by a limitation or qualification expressly set out in the provision containing
that right or freedom and may be otherwise limited only by a law of general
application; and
(b) to the extent that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom, taking
into account all relevant factors, including –
(i) the nature of the right;
(ii) the importance of the purpose of the limitation;
(iii) the nature and extent of the limitation;
(iv) the need to ensure that the enjoyment of rights and freedoms by
any individual does not prejudice the rights and freedoms of others;
and
(v) the relation between the limitation and its purpose and whether
there are less restrictive means to achieve the purpose.
(2) Despite clause (1)(b), a provision in legislation is not valid in the case of legislation
enacted or amended after the effective date, unless that legislation specifically
expresses the intention to limit that right or freedom and the nature and extent of the
limitation.
(3) Despite clause (1), a provision in legislation –
(a) shall not be construed as limiting a right or freedom set out in the Bill of
Rights unless the provision is clear and specific about the right or freedom
to be limited and the nature and extent of the limitation; and
(b) shall not limit a right or freedom set out in the Bill of Rights so as to
derogate from the core or the essential content of the right.
(4) The State or a person seeking to justify a particular limitation, shall demonstrate to
the court, tribunal or forum that the requirements of this Article have been satisfied.
(5) The provisions of this Chapter on equality shall be qualified to the extent strictly
necessary for the application of Islamic law to persons who profess the Muslim faith
in relation to personal status, marriage, divorce and inheritance.
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Part II – Fundamental rights and freedoms
Right to life
34. (1) Every person has the right to life.
(2) The life of a person begins at conception.
(3) Abortion shall not be permitted unless, in the opinion of a registered medical
practitioner, the life of the mother is in danger.
Equality
35. (1) Every person is equal before the law and has the right to equal protection and equal
benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms.
Freedom from discrimination
36. (1) The State shall not discriminate directly or indirectly against any person on any
ground, including race, sex, pregnancy, marital status, health status, ethnic or social
origin, colour, age, disability, religion, conscience, belief, culture, dress, language or
birth.
(2) A person shall not discriminate directly or indirectly against another person on any
ground in terms of clause (1).
(3) A person may not be compelled to indicate or define that person’s ethnicity or race.
(4) Despite clause (1), the State shall take legislative and other measures including but
not limited to affirmative action programmes and policies designed to benefit
individuals or groups who are disadvantaged, whether or not as a result of past
discrimination, but any such measure taken shall –
(a) adequately provide for any benefits to be on the basis of genuine need; and
(b) be permissible in terms of Article 33 .
Gender
37. (1) Women and men have the right to equal treatment including the right to equal
opportunities in political, economic, cultural and social activities.
(2) Women and men have an equal right to inherit, have access to and manage property.
(3) Any law, culture, custom or tradition that undermines the dignity, welfare, interest or
status of women or men is prohibited.
(4) Despite clause (1), the State shall –
(a) protect women and their rights, taking into account their unique status and
natural maternal role in society; and
(b) provide reasonable facilities and opportunities to enhance the welfare of
women to enable them to realise their full potential and advancement.
Older members of society
38. (1) Older members of society are entitled to continue to enjoy all the rights and freedoms
set out in the Bill of Rights.
(2) The State shall take legislative and policy measures to ensure the rights of older
persons to –
(a) participate fully in the affairs of society;
(b) pursue their personal development;
(c) be free from all forms of discrimination and abuse;
(d) live in dignity and respect;
(e) retain their social, economic and political autonomy; and
(f) receive reasonable care and assistance of their family and the State.
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(3) Parliament shall enact legislation to establish a council to define and advise on
policies and programmes for the care and protection of older members of society.
Youth
39. (1) The youth constitute an integral part of society and are entitled to enjoy all the rights
and freedoms set out in the Bill of Rights, taking into account their unique needs.
(2) The State shall take legislative and other measures, including but not limited to
affirmative action policies and programmes, to promote the welfare of the youth.
(3) The measures referred to under clause (2) shall include measures to ensure for the
youth –
(a) access to quality and relevant education and training;
(b) participation in governance;
(c) access to gainful employment;
(d) adequate opportunities in the social, political, economic and other spheres of
national life;
(e) freedom of association to further their legitimate interests;
(f) protection from any culture, custom, tradition or practice that could
undermine their dignity or quality of life; and
(g) a life free from discrimination, exploitation or abuse.
Children
40. (1) Children hold a special place in society.
(2) It is the duty of parents, the family, society and the State to nurture, protect and
educate children.
(3) All children, whether born within or outside wedlock, are equal before the law and
have equal rights under this Constitution.
(4) A child’s best interests shall be of paramount importance in every matter concerning
the child.
(5) A child’s mother and father, whether married to each other or not, have an equal
responsibility to protect and provide for the child.
(6) Every child has a right to –
(a) a name and a nationality from birth and to have their birth registered;
(b) parental care, or to appropriate alternative care when the child is separated
from its parents;
(c) free and compulsory basic education;
(d) be protected from discrimination, harmful cultural rites and practices,
exploitation, neglect or abuse;
(e) be protected from all forms of exploitation and any work that is likely to be
hazardous or adverse to the child’s welfare;
(f) adequate nutrition, shelter, basic health care services and social services;
(g) be free of corporal punishment or other forms of violence or cruel and
inhumane treatment in schools and other institutions responsible for the care
of children;
(h) not take part in hostilities or to be recruited into armed conflicts and to be
protected from situations of armed conflict;
(i) not be arrested or detained except as a measure of last resort, and, when
arrested or detained, to be treated in a manner that promotes the child’s
dignity and self-worth and that pays attention to the child’s rights, including
but not limited to the right to –
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(i) be so detained only for the shortest appropriate period of time;
(ii) be kept separate from adults in custody;
(iii) be accorded legal assistance by the State; and
(iv) be treated in a manner, and to be kept in conditions, that take
account of the child’s disability, if any, gender and age;
(j) have a legal practitioner assigned to the child by the State and at State
expense in other proceedings affecting the child, if injustice would
otherwise result; and
(k) know of decisions affecting the child, to express an opinion and have that
opinion taken into account, taking into consideration the age and maturity of
the child and the nature of the decision.
(7) Children with special needs are entitled to the special protection of the State and
society.
(8) The State has the obligation to take steps to implement in law and administration the
provisions of this Constitution and of international instruments and standards on the
rights of the child.
Family
41. (1) The family is the natural and fundamental unit of society and the necessary basis of
social order.
(2) Every adult –
(a) has the right to marry a person of the opposite sex, based upon the free
consent of the parties; and
(b) has the right to found a family.
(3) A person shall not marry another person of the same sex.
(4) Parties to a marriage are entitled to equal rights at the time of the marriage, during
the marriage, and at the dissolution of the marriage.
(5) Parliament shall enact legislation that recognises –
(a) marriages concluded under any tradition, or system of religious, personal or
family law; and
(b) personal and family law under any tradition, or adhered to by persons
professing a particular religion,
to the extent such marriages or systems are consistent with this Constitution.
Persons with disabilities
42. (1) Persons with disabilities are entitled to enjoy all the rights and freedoms set out in the
Bill of Rights, and to be full participants in society.
(2) Persons with disabilities have a right to –
(a) respect and human dignity including to be treated, addressed and referred to,
in official or private contexts, in a manner and in words that are not
demeaning or derogatory;
(b) access to education, to institutions and facilities for persons with disabilities
that are as integrated into society as a whole as is compatible with the
interests of those persons;
(c) access to all places, to public transport and to information and
communications;
(d) use of sign language, Braille and other appropriate means of
communication;
(e) participate in decision-making at all levels;
(f) equal rights to inherit, have access to and to manage property;
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(g) access to materials and devices to overcome constraints arising from those
disabilities; and
(h) treatment and opportunities in all spheres of life that are both fair and equal
to those of other members of society.
(3) The State shall take legislative and other measures to ensure that persons with
disabilities enjoy all the rights referred to in clause (2).
(4) Legislation and policy measures provided for in clause (3) shall make special
provision for women with disabilities.
Minorities and marginalized groups
43. (1) Minorities and marginalized groups are entitled to enjoy all the rights and freedoms
set out in the Bill of Rights, on a basis of equality, taking into account their special
circumstances and needs.
(2) The State shall take legislative and other measures to put in place affirmative action
programmes, designed to benefit Minorities and marginalized groups.
(3) The measures referred to in clause (2) shall include measures to ensure that
Minorities and marginalized groups –
(a) participate and are fully represented in governance and in all other spheres
of national life;
(b) are accorded special opportunities in the educational and economic fields;
(c) are accorded special opportunities for access to gainful employment;
(d) are assisted to develop their cultural values, languages and practices;
(e) are assisted to have reasonable access to water, health services and transport
infrastructure;
(f) have a reasonable opportunity to meet their basic needs; and
(g) live a life free from discrimination, exploitation or abuse.
Human dignity
44. (1) Every person has inherent dignity and the right to have that dignity respected and
protected.
(2) The inherent dignity of every person –
(a) includes the right to dispose of the remains of deceased persons in a
dignified manner; and
(b) extends to their remains after burial.
Freedom and security of the person
45. Every person has the right to freedom and security of the person, which includes the right –
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial, except during a state of emergency in which
case the detention is subject to Article 75;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any manner, whether physical or psychological; and
(e) not to be subjected to corporal punishment or to be treated or punished in a
cruel, inhuman or degrading manner.
Slavery, servitude and forced labour
46. (1) A person shall not be held in slavery or servitude.
(2) A person shall not be required to perform forced labour.
Privacy
47. Every person has the right to privacy, which includes the right not to have –
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(a) their person or home searched;
(b) their property searched;
(c) their possessions seized;
(d) information relating to their family or private affairs unnecessarily required
or revealed; or
(e) the privacy of their communications infringed.
Freedom of religion, belief and opinion
48. (1) Every person has the right to freedom of conscience, religion, thought, belief and
opinion.
(2) Every person has a right, either individually or in community with others, in public or
in private, to manifest any religion or belief through worship, observance, including
observance of a day of worship, practice or teaching.
(3) Every religious community is entitled to establish and run places of education at its
own expense and to provide religious instruction for persons of that community in
the course of providing the education.
(4) Religious observances and religious instruction may be conducted at State or Stateaided
institutions, if –
(a) they are conducted on an equitable basis; and
(b) attendance at such observances or religious instruction is voluntary.
(5) A person may not be denied access to any institution, employment or facility or the
enjoyment of any right, for reasons of that person’s religious beliefs.
(6) A person shall not compel another person –
(a) to take an oath that is contrary to that person’s religion or belief or that
involves expressing a belief that the person does not hold;
(b) to take an oath in a manner that is contrary to that person’s religion or belief
or that involves expressing a belief that the person does not hold;
(c) to receive religious instruction or to take part in or attend a religious
ceremony or to observe a day of rest or other observance that relates to a
religion that is not that person’s religion;
(d) to perform, observe or undergo a religious practice or rite;
(e) to disclose that person’s religious convictions or beliefs; or
(f) to do any other act that is contrary to that person’s religion or belief.
Freedom of expression
49. (1) Every person has the right to freedom of expression, which includes –
(a) freedom to receive or impart information or ideas;
(b) freedom of artistic creativity, including dress; and
(c) academic freedom and freedom of scientific research.
(2) The right referred to in clause (1) does not extend to –
(a) propaganda for war;
(b) incitement to violence; or
(c) advocacy of hatred that –
(i) constitutes vilification of others or incitement to cause harm, or
(ii) is based on any prohibited ground of discrimination contemplated
in Article 36.
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Freedom of the media
50. (1) Freedom and independence of electronic, print and other media of all types are
guaranteed.
(2) The State shall not –
(a) exercise control over, or interfere with, any person concerned in
broadcasting, production or circulation of any publication, or in the
dissemination of information by any medium; or
(b) harass or penalize any person for any opinion or view, or the content of any
broadcast, publication or dissemination.
(3) Broadcasting and other electronic media have freedom of establishment, subject only
to licensing procedures that –
(a) are designed to ensure the necessary regulation of the airwaves and other
forms of signal distribution; and
(b) are independent of control by government, political interests or commercial
interests.
(4) All State-owned media shall be independent and impartial and shall afford fair
opportunities and facilities for the presentation of divergent views and dissenting
opinions.
(5) Parliament shall enact legislation that –
(a) makes reasonable provision for equitable allocation of airtime by Stateowned
and other specified categories of broadcasting media, to political
parties either generally or during election campaigns;
(b) regulates freedom to broadcast in order to ensure fair election campaigning;
and
(c) provides for the establishment of a body which shall be independent of
government or political control and reflective of the interests of all sections
of the community, and which shall set media standards, and regulate and
monitor compliance with those standards.
Access to information
51. (1) Every citizen has the right of access to –
(a) information held by the State; and
(b) any information that is held by another person and that is required for the
exercise or protection of any right or freedom.
(2) Every person has the right to demand the correction or deletion of untrue or
misleading information that affects that person.
(3) The State shall publish and publicize any important information affecting the nation.
(4) Parliament shall enact legislation to provide for access to information.
Freedom of association
52. (1) Every person has the right to freedom of association.
(2) The right extends to the formation, operation and continued existence of
organisations.
(3) A person shall not be compelled to join an association of any kind.
(4) The State shall take legislative and policy measures to promote and encourage civil
society participation in decision-making and in the management of public affairs at
all levels of government.
(5) Any legislation that requires civil society organisations to register or otherwise be
subject to control, shall provide that –
(a) registration may be required only if there is good reason for it;
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(b) registration shall be in the hands of a body that is independent of
Government or political control;
(c) any fee chargeable shall be no more than is necessary to defray essential
cost of the procedure;
(d) there shall be a right to registration, unless there is good reason to the
contrary;
(e) any standards of conduct applied to organisations shall be formulated with
input from the affected organisations; and
(f) de-registration procedures shall provide for a fair hearing and for a right of
appeal to an independent tribunal.
Assembly, demonstration, picketing and petition
53. Every person has the right, peaceably, unarmed and without the requirement of prior
permission, to assemble, to demonstrate, to picket, and to present petitions to public
authorities.
Political rights
54. (1) Every citizen is free to make political choices, which includes the right –
(a) to form, or participate in forming, a political party;
(b) to participate in the activities of, or recruit members for, a political party;
and
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections for –
(a) any elective public body or office established under this Constitution; and
(b) office bearers of any political party of which the citizen is a member.
(3) Every adult citizen has the right –
(a) to be registered as a voter and to vote by secret ballot in any election
referred to in clause (2); and
(b) to stand for public office, or office within a political party of which they are
a member, and if elected, to hold office.
Freedom of movement and residence
55. (1) Every person has the right to freedom of movement.
(2) Every person has the right to leave Kenya.
(3) Every citizen has the right to enter into, remain in and reside anywhere in Kenya.
Refugees and asylum
56. (1) A person who has sought refuge in Kenya has a right not to be returned or taken to
another country if that person has a well-founded fear of persecution in that other
country, or of other treatment that would justify that person’s being regarded as a
refugee.
(2) Parliament shall enact legislation in compliance with international law and practice,
governing persons who seek refuge or asylum in Kenya.
Freedom of trade, occupation and profession
57. Every person has the right to choose a trade, occupation or profession.
Protection of right to property
58. (1) Subject to Article 83, every person has a right to acquire and own property in any
part of Kenya, either individually or in association with others.
(2) Parliament shall not enact a law that permits the State, or any person –
(a) to arbitrarily deprive a person of property of any description;
21
(b) to arbitrarily deprive a person of any interest in, or right over, such property;
or
(c) to limit or in any way restrict the enjoyment of any right under this Article
on the basis of any of the grounds set out under Article 36(1).
(3) The State shall not deprive a person of property of any description, or of any interest
in, or right over, property, unless that deprivation –
(a) results from an acquisition of land or an interest in land or a conversion of
an interest in land, or title to land, in accordance with Chapter Seven; or
(b) is for a public purpose or in the public interest and is carried out in
accordance with this Constitution or an Act of Parliament that –
(i) requires prompt payment in full, of a just compensation to the
person, before the property is taken;
(ii) allows any person who has an interest in, or right over, that
property a right of access to a court of law.
(4) Provision may be made for compensation to be paid to occupants in good faith of the
land so acquired who may not hold title to that land.
(5) The right recognized and protected under this Article does not cover any property
that has been unlawfully acquired.
Labour relations
59. (1) Every person has the right to fair labour practices.
(2) Every worker has the right to –
(a) fair remuneration;
(b) reasonable working conditions;
(c) form, join or participate in the activities and programmes of a trade union;
and
(d) go on strike.
(3) Every employer has the right to –
(a) form and join an employers’ organisation; and
(b) participate in the activities and programmes of an employers’ organisation.
(4) Every trade union and every employers’ organisation has the right to –
(a) determine its own administration, programmes and activities;
(b) organise; and
(c) form and join a federation.
(5) Every trade union, employers’ organisation and employer has the right to engage in
collective bargaining.
Social security
60. (1) Every person has the right to social security.
(2) The State shall provide appropriate social security to persons who are unable to
support themselves or their dependants.
Health
61. (1) Every person has the right to health, which includes the right to health care services,
including reproductive health care.
(2) No person may be refused emergency medical treatment.
Education
62. (1) Every person has the right to education.
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(2) The State shall institute a programme to implement the right of every child to free
and compulsory pre-primary and primary education and in so doing shall pay
particular attention to children with special needs.
(3) The State shall take measures to make secondary and post-secondary education
progressively available and accessible.
(4) Every person has the right to establish and maintain, at that person’s own expense,
independent educational institutions that comply with the requirements of this
Constitution, and meet standards laid down in legislation.
Housing
63. Every person has the right to accessible and adequate housing.
Food
64. Every person has the right to be free from hunger and to adequate food of acceptable quality.
Water
65. Every person has the right to water in adequate quantities and of satisfactory quality.
Sanitation
66. Every person has the right to a reasonable standard of sanitation.
Environment
67. Every person has the right –
(a) to an environment that is safe for life and health;
(b) to have the environment protected, for the benefit of present and future
generations, through legislative and other measures that –
(i) prevent pollution and ecological degradation; and
(ii) promote conservation; and secure ecologically sustainable
development and use of natural resources while promoting
economic and social development; and
(c) to free information about the environment.
Language and culture
68. (1) Every person has the right to use the language, and to participate in the cultural life,
of that person’s choice.
(2) A person belonging to a cultural or linguistic community shall not be denied the
right, with other members of that community –
(a) to enjoy that person’s culture and use that person’s language; or
(b) to form, join and maintain cultural and linguistic associations and other
organs of civil society.
(3) A person shall not compel another person to perform, observe or undergo any
cultural practice or rite.
Consumer rights
69. (1) Consumers have the right to –
(a) goods and services of reasonable quality;
(b) the information necessary for them to gain full benefit from goods and
services;
(c) the protection of their health, safety, and economic interests; and
(d) compensation for loss or injury arising from defects in goods or services.
(2) The principles in this Article apply to goods and services offered by State organs,
public and private persons and other entities.
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(3) Parliament shall enact legislation to provide for consumer protection and for fair,
honest and decent advertising.
Fair administration
70. (1) Every person has the right to administrative action that is expeditious, efficient,
lawful, reasonable and procedurally fair.
(2) Every person whose rights have been adversely affected by administrative action has
the right to be given written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights in clause (1) and such
legislation shall provide for the review of administrative action by a court or, where
appropriate, an independent and impartial tribunal.
Right not to obey unlawful instructions
71. (1) Every person has a right not to obey unlawful instructions.
(2) A person shall not be liable to punishment under any law for disobeying unlawful
instructions.
Access to courts
72. (1) Every person has the right to have any dispute that can be resolved by the application
of law decided in a fair public hearing before a court or, where appropriate, another
independent tribunal or forum.
(2) Any fee required to be paid by a person under clause (1) shall be reasonable and not
serve to impede access to justice.
Rights of arrested persons
73. (1) Every person who is arrested has the right –
(a) to be informed promptly in language that person understands of the reason
of the arrest;
(b) to remain silent;
(c) to be informed promptly in language that person understands –
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(d) to communicate with that person’s lawyers and other persons whose
assistance is necessary;
(e) not to be compelled to make any confession or admission that could be used
in evidence against that person and where that person freely chooses to
make a confession, it shall be made before a court or magistrate;
(f) to be held separately from persons who are serving a sentence;
(g) to be brought before a court as soon as reasonably possible, but not later
than forty eight hours after being arrested or not later than the end of the
first court day after the expiry of the forty eight hours, if the forty eight
hours expire outside ordinary court hours or on a day that is not an ordinary
court day;
(h) at the first court appearance after being arrested, to be charged or to be
informed of the reason for the detention to continue, or to be released; and
(i) to be released on bond or bail pending a charge or trial on reasonable
conditions unless there are compelling reasons to the contrary.
(2) A person shall not be remanded in custody for an offence if that offence is punishable
by a fine only or imprisonment for not more than six months.
Fair trial
74. (1) Every accused person has the right to a fair trial, which includes the right –
(a) to be presumed innocent until the contrary is proved;
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(b) to be informed of the charge with sufficient detail to answer it;
(c) to have adequate time and facilities to prepare a defence;
(d) to a public trial before a court established under this Constitution;
(e) to have the trial begin and conclude without unreasonable delay;
(f) to be present when being tried;
(g) to choose, and be represented by, an advocate and to be informed of this
right promptly;
(h) to have an advocate assigned to the accused person by the State and at State
expense, if substantial injustice would otherwise result, and to be informed
of this right promptly;
(i) to remain silent, and not to testify during the proceedings;
(j) to adduce and challenge evidence;
(k) not to be compelled to give self-incriminating evidence;
(l) to have the assistance of an interpreter without payment if the accused
person cannot understand the language used at the trial;
(m) not to be convicted for an act, or omission, that at the time it was committed
or omitted was not –
(i) an offence in Kenya; or
(ii) a crime under general principles of law recognised by the major
legal systems or by international law;
(n) not to be tried for an offence in respect of an act or omission for which that
person has previously been either acquitted or convicted;
(o) to the benefit of the least severe of the prescribed punishments if the
prescribed punishment for an offence has been changed between the time
that the offence was committed, and the time of sentencing; and
(p) of appeal to, or review by, a higher court.
(2) Whenever this Article requires information to be given to a person, that information
shall be given in language that the person understands.
(3) Evidence obtained in a manner that violates any right in the Bill of Rights shall be
excluded if the admission of that evidence would render the trial unfair or otherwise
be detrimental to the administration of justice.
(4) An accused person charged with an offence, other than an offence that the court may
try by summary procedures, shall be entitled, on request, to a transcript of the
proceedings of the trial.
(5) An accused person has the right to a copy of the record of proceedings within
fourteen days after they are concluded, in return for a reasonable fee as prescribed by
law.
(6) A person convicted of a criminal offence and whose appeal has been dismissed by
the highest court to which the person is entitled to appeal, or who did not appeal
within the time allowed for appeal, may petition the High Court for a new trial if new
and compelling evidence has become available.
Rights of persons held in custody
75. (1) A person held in custody under the law, whether sentenced or not, retains all the
fundamental rights under this Constitution, except to the extent that a right is clearly
incompatible with the fact of being in custody.
(2) A person held in custody has the right –
(a) to be treated in a way that respects human dignity, and not be subject to
discrimination on the basis of any prohibited ground;
25
(b) not to be exploited or abused by staff or fellow prisoners, and the State shall
take adequate steps to ensure that person’s protection;
(c) to accommodation and facilities that satisfy the standards of decent clothing,
housing, food, health, and sanitation guaranteed elsewhere in the Bill of
Rights;
(d) to reasonable health care at public expense, and to pay for that person’s own
health care by that person’s own doctors if necessary;
(e) to exercise and education, and to work in return for reasonable
remuneration;
(f) to observe that person’s religion, and not to be subjected to treatment that
violates that person’s religious practices and convictions;
(g) to communicate with that person’s lawyers, religious advisers, spouses,
close family, and other persons whose assistance is necessary and to visits of
reasonable frequency and duration;
(h) to privacy, including the separation of women and men, to the extent
compatible with the preservation of law, order and discipline;
(i) to be informed by authorized persons of the rules and decisions that affect
that person;
(j) to a fair hearing in any disciplinary proceedings;
(k) to fair consideration for parole or remission of sentence and for other
rehabilitative measures;
(l) to complain to the Kenya Correctional Service, the Commission on Human
Rights and Administrative Justice or any similar institution, and to
communicate with the press;
(m) to vote; and
(n) in the case of persons with disabilities, to facilities modified as necessary to
fit the circumstances of such disabilities.
(3) The State shall ensure that the Kenya Correctional Service, so far as it relates to
convicted prisoners, observes the minimum standards laid down under relevant
international law and international standards.
State of emergency
76. (1) A state of emergency may be declared only in accordance with Article 153(4) and
only when –
(a) the State is threatened by war, invasion, general insurrection, disorder,
natural disaster or other public emergency; and
(b) the declaration is necessary to meet the circumstances for which the
emergency is declared.
(2) A declaration of a state of emergency, and any legislation enacted or other action
taken in consequence of that declaration, is effective only –
(a) prospectively; and
(b) for no more than fourteen days from the date of the declaration, unless the
National Assembly resolves to extend the declaration.
(3) The National Assembly may extend a declaration of a state of emergency –
(a) by resolution adopted –
(i) following a public debate in the Assembly; and
(ii) by the majorities set out in clause (4); and
(b) for no more than two months at a time.
(4) The first extension of a state of emergency shall be adopted with a supporting vote of
sixty-five per cent of the members of the Assembly, and any subsequent extension
26
shall be adopted with a supporting vote of at least seventy-five per cent of the
members of the Assembly.
(5) The High Court may decide on the validity of –
(a) a declaration of a state of emergency;
(b) any extension of a declaration of a state of emergency; or
(c) any legislation enacted, or other action taken, in consequence of a
declaration of a state of emergency.
(6) Any legislation enacted in consequence of a declaration of a state of emergency may
derogate from the Bill of Rights only to the extent that –
(a) the derogation is strictly required by the emergency; and
(b) the legislation –
(i) is consistent with the Republic’s obligations under international
law applicable to a state of emergency;
(ii) conforms to clause (7); and
(iii) is published in the Gazette as soon as reasonably practicable after
being enacted,
and does not take effect until it is so published.
(7) An Act of Parliament that authorizes a declaration of a state of emergency, or
legislation enacted or other action taken in consequence of any declaration, may not
permit or authorize the indemnification of the State, or of any person, in respect of
any unlawful act.
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CHAPTER SEVEN
LAND AND PROPERTY
Principles of land policy
77. (1) Land is Kenya’s primary resource and the basis of livelihood for the people, and shall
be held, used and managed in a manner which is equitable, efficient, productive and
sustainable.
(2) The Government shall define and keep under review a national land policy ensuring
the following principles –
(a) equitable access to land and associated resources;
(b) security of land rights for all land holders, users and occupiers in good faith;
(c) sustainable and productive management of land resources;
(d) transparent and cost effective administration of land;
(e) sound conservation and protection of ecologically sensitive areas;
(f) the discouragement of customs and practices that discriminate against the
access of women to land; and
(g) encouragement of communities to settle land disputes through recognized
local community initiatives consistent with this Constitution.
Vesting and classification of land
78. (1) All land in Kenya belongs to the people of Kenya collectively as a nation, as
communities and as individuals.
(2) All land in Kenya is designated as public, community or private.
Public land
79. (1) Public land is –
(a) land which at the effective date was unalienated government land as defined
by an Act of Parliament;
(b) land lawfully held, used or occupied by any government Ministry,
department or agency of local authority, except where such land is occupied
under a private lease;
(c) all minerals as defined by any law;
(d) land transferred to the Republic by way of reversion or surrender;
(e) land in respect of which no individual or community ownership can by any
legal process be established;
(f) land in respect of which no heir can by ordinary legal process be identified;
(g) government forests other than forests to which Article 80(2)(e) applies,
game reserves, and water catchment areas, national parks, animal
sanctuaries, specially protected areas;
(h) all roads and thoroughfares specified by an Act of Parliament;
(i) all rivers, lakes and other areas of water as defined by an Act of Parliament;
(j) the territorial sea and its sea bed;
(k) all land between high and low water mark;
(l) any land not classified as private or community land under this Constitution;
and
(m) any other land declared to be public land by an Act of Parliament.
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(2) Public land, classified under Article 79(1)(a) to (f) shall vest in and be held by district
governments in trust for the people resident in the relevant district and shall be
administered on their behalf by the National Land Commission.
(3) Public land classified under Article 79(1)(g) to (m) shall vest in and be held by
Government in trust for the people of Kenya and shall be administered on their behalf
by the National Land Commission.
(4) Public land shall not be disposed of or otherwise used except in terms of legislation
specifying the nature and terms of that disposal or use.
Community land
80. (1) Community land shall vest in and be held by communities identified on the basis of
ethnicity, residence or community of interest.
(2) For the purposes of clause (1) “community land” includes –
(a) all land lawfully held as trust land by devolved governments;
(b) land lawfully registered in the name of group representatives under the
provisions of any law for the time being in force;
(c) land lawfully held, managed or used by specific communities as community
forests, grazing areas or shrines;
(d) land lawfully transferred to a specific community by any process of law;
(e) ancestral lands lawfully occupied by hunter-gatherer communities; and
(f) any other land declared to be community land by an Act of Parliament,
but shall not include public land as defined in Article 79.
(3) Any unregistered community land shall be held in trust by district governments on
behalf of the communities.
(4) Community land shall not be disposed of or otherwise used except in accordance
with an Act of Parliament.
(5) Parliament shall enact legislation to give effect to this Article.
Private land
81. Private land includes –
(a) any registered land held by any person under a freehold tenure;
(b) land held by any person under leasehold tenure; and
(c) any other land that may be declared private land under an Act of Parliament.
Property rights of spouses
82. A surviving spouse shall not be deprived of a reasonable provision out of the estate of a
deceased spouse whether or not the spouse died having made a will.
Landholding by non-citizens
83. (1) A person who is not a citizen may hold or use land on the basis of leasehold tenure
only, and such a lease however granted, shall not exceed ninety-nine years.
(2) An agreement, deed or conveyance or whatever nature which confers on a person
who is not a citizen an interest in land greater than a ninety-nine year lease, is void.
(3) On the effective date, any interest in land greater than a ninety-nine year lease held
by a person who is not a citizen shall revert to the State and the State shall grant to a
person who held such a greater interest, a ninety-nine year lease.
(4) Parliament shall enact legislation to bring into effect the provisions of clause (3).
29
Regulation of land use
84. (1) The State has the power to regulate the use of any land, interest or right in land in the
interest of defence, public safety, public order, public morality, public health, land
use planning or the development or utilization of property.
(2) The State shall encourage and provide a conducive, social, economic, political and
legal atmosphere for the creation, development and management of property.
(3) The State shall ensure –
(a) the establishment of a housing development fund to enable the people of
Kenya to gain access to more and better housing; and
(b) the development and review of a national housing policy with a view to
increasing, regulating and maintaining the national housing stock.
(4) Parliament shall enact legislation –
(a) requiring the State and relevant organizations including devolved
governments to encourage the use of acceptable, affordable and reasonable
intermediate technologies, building materials, innovations and methods in
the property sector provided their use is not harmful and injurious to persons
and the environment; and
(b) ensuring that major investments in property benefit local communities and
their economy.
National Land Commission
85. (1) There is established the National Land Commission.
(2) The functions of the National Land Commission are –
(a) to manage public land on behalf of the national and devolved governments;
(b) to formulate and recommend to the Government a national land policy;
(c) to advise the Government and devolved governments on a policy framework
for the development of selected areas of Kenya, to ensure that the
development of community and private land is in accordance with the
development plan for the area;
(d) to investigate disputes of land ownership, occupation and access to public
land in any area provided for by legislation;
(e) to advise the Government on, and assist in the execution of a comprehensive
programme for the registration of title in land throughout Kenya;
(f) to conduct research related to land and natural resource use, and make
recommendation to appropriate authorities;
(g) to initiate investigations on its own or upon a complaint from any person or,
other persons or institutions on land injustices both present and historical
and ensure appropriate redress;
(h) to facilitate the participation of communities in the formulation of land
policy;
(i) to encourage the application of traditionally accepted systems of dispute
resolution in land conflicts;
(j) to assess tax on land and premiums on property in any area designated by
law;
(k) to monitor and have oversight responsibilities over land use planning
throughout the country;
(l) to consolidate and from time to time review all laws relating to land; and
(m) to initiate revision of all sectoral land use laws in accordance with the
national land policy.
(3) The National Land Commission shall establish offices throughout the country.
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Legislation on land
86. (1) Parliament shall enact legislation to –
(a) revise, consolidate and rationalise existing land laws;
(b) revise sectoral land use law in accordance with the national land policy;
(c) regulate the manner in which any land may be converted from one category
to another;
(d) regulate the recognition and protection of matrimonial property and in
particular the matrimonial home during and at the termination of marriage;
(e) enable the ascertainment of land held for the benefit of any community by
any person or agency, and the transfer of such land to communities entitled
to it;
(f) protect, conserve and provide unfettered access to all public land;
(g) enable the review of all grants or dispositions of public land to establish
their propriety or legality;
(h) enable the settlement of landless people including the rehabilitation of
spontaneous settlements of rural and urban communities, until a solution is
found;
(i) establish a land fund to enable citizens to gain access to land on an equitable
basis;
(j) establish a land bank to facilitate the availability of land for public purposes;
and
(k) prescribe minimum and maximum land holding acreage in arable areas.
(2) Parliament shall determine the cut-off date with reference to which the review
required in clause 1(g) is to be conducted.
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CHAPTER EIGHT
ENVIRONMENT AND NATURAL RESOURCES
Principles and obligations on the environment
87. The State shall –
(a) respect the integrity of natural processes and ecological communities,
including conservation of habitats and species;
(b) ensure sustainable exploitation, utilization, management and conservation of
the environment and natural resources;
(c) ensure equitable sharing of benefits accruing from exploitation, utilization
and management of the environment and natural resources under paragraph
(b);
(d) ensure that social and cultural values traditionally applied by Kenyan
communities for the sustainable management of the environment and natural
resources are observed;
(e) domesticate international and bilateral agreements and treaties relating to the
protection of the environment;
(f) ensure that planning and utilization of the environment takes account of
disadvantaged areas and their inhabitants;
(g) promote energy saving and the use of renewable energy sources;
(h) prevent pollution and ecological degradation;
(i) allocate adequate resources to reclaim and rehabilitate degraded areas and
those prone to disasters to make them habitable and productive; and
(j) work to achieve and maintain a tree cover of a least ten per cent of the land
area of Kenya.
Protection of the environment
88. Every person has a duty to cooperate with State organs and other persons –
(a) to ensure ecologically sustainable development and use of natural resources;
(b) to respect, protect and safeguard the environment;
(c) to prevent or discontinue an act which is harmful to the environment;
(d) to direct the appropriate authority to take measures to prevent or discontinue
an act or omission which is harmful to the environment; and
(e) to maintain a clean, safe and healthy environment.
Conservation of the environment
89. In the utilization and management of the environment the State shall –
(a) protect genetic resources and biological diversity;
(b) discourage waste and encourage recycling;
(c) establish systems of environmental impact assessment, environmental audit
and monitoring of the environment;
(d) encourage public participation;
(e) protect and enhance the intellectual property in, and indigenous knowledge
of, in biodiversity and genetic resources of the communities; and
(f) ensure that the environmental standards enforced in the Republic are the
accepted international standards.
32
Enforcement of environmental rights
90. (1) If a person alleges that a right to a clean and healthy environment recognized and
protected under this Constitution has been, is being or is likely to be, contravened, in
addition to any other legal remedies which are available in respect to the same
matter, that person may apply to the court for redress.
(2) On an application by a person under clause (1), the court may make such orders, or
give such directions as it may consider appropriate, to –
(a) prevent, stop or discontinue any act or omission which is harmful to the
environment;
(b) compel any public officer to take measures to prevent or discontinue any act
or omission which is harmful to the environment; and
(c) provide compensation for any victim of pollution.
(3) A person may make an application under this Article even if he or she cannot show
that the defendant’s act or omission has caused or is likely to cause him or her any
personal loss or injury.
Utilization and development of natural resources
91. (1) The State shall ensure the protection, management, promotion and sustainable
development of natural resources and shall –
(a) ensure an increase in output and profits;
(b) undertake strategic research to ensure their enhancement;
(c) eliminate unfair trade practices in their production, processing, distribution
and marketing;
(d) regulate their exportation and importation;
(e) regulate their origin, quality, methods of production, harvesting and
processing;
(f) eliminate processes and activities that are likely to endanger or curtail their
existence; and
(g) utilize them for the benefit of all the people of Kenya.
(2) Parliament –
(a) may by legislation, provide for the utilization and management of a natural
resource by the devolved government where the resource is located; and
(b) shall enact legislation –
(i) to regulate sustainable exploitation, utilization, management and
equitable sharing of benefits accruing from natural resources; and
(ii) to protect the intellectual property rights and indigenous knowledge
of local communities in biodiversity and access to genetic
resources.
Agreements relating to natural resources
92. (1) A transaction involving the grant of a right or concession by or on behalf of any
person, including the Government, to another person, for the exploitation of any
natural resource of Kenya, entered into after the effective date, is subject to
ratification by both Houses of Parliament.
(2) Parliament may, by legislation supported in each House by at least two thirds of all
the members, exempt any class of transactions from the provisions of clause (1).
National Environment Commission
93. (1) There is established the National Environment Commission.
(2) The functions of the National Environment Commission are –
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(a) to advise the Government and devolved governments on the policy
framework for management of the environment and natural resources and to
regulation of human settlements;
(b) to promote just, equitable and rational sharing and utilization of the
environment and natural resources;
(c) to produce biennial reports on the state of the environment and make them
available to the public;
(d) to ensure the protection, conservation and management of the environment;
(e) to monitor and evaluate the implementation of the national environment
policy;
(f) to conduct research on environment and natural resources; and
(g) to examine and regulate resource use patterns and practices.
34
CHAPTER NINE
LEADERSHIP AND INTEGRITY
Responsibilities of leadership
94. (1) Any sovereign authority of the people assigned to a State office –
(a) is a public trust to be exercised in a manner that –
(i) is consistent with the purpose and objects of this Constitution;
(ii) demonstrates respect for the people;
(iii) brings honour to the nation and dignity to the office; and
(iv) promotes public confidence in the integrity of the office; and
(b) vests in that State officer the responsibility to serve the people, rather than
the power to rule them.
(2) The guiding principles of leadership and integrity include –
(a) selection on the basis of integrity, competence and suitability, or election in
free and fair elections;
(b) objectivity and impartiality in decision making and in ensuring that
decisions are not influenced by nepotism, favouritism or other improper
motives;
(c) selfless service based solely on the public interest, demonstrated by –
(i) honesty in the execution of public duties; and
(ii) the declaration of any personal interest that may conflict with
public duties;
(d) accountability to the public for decisions and actions; and
(e) discipline and commitment in service to the people.
Assumption of office
95. Before assuming office, or performing any functions of office, each person elected or
appointed to a State office shall take and subscribe the oath or affirmation of office in the
manner and form prescribed by the Third Schedule, or by an Act of Parliament.
Conduct of State officers
96. (1) A State officer shall behave, whether in public and official life, in private life, or in
association with other persons, in such a manner as to avoid –
(a) any conflict between personal interests and public or official duties;
(b) compromising any public or official interest in favour of a personal interest;
or
(c) demeaning the office or position the officer holds.
(2) A State officer shall not –
(a) directly or indirectly use State office for personal gain;
(b) seek or accept any property, gift or benefit of any kind as an inducement or
bribe for the granting of a favour or for the performance or non-performance
of an official function;
(c) misappropriate public funds, or misuse or unlawfully destroy public
property;
(d) use public assets, property or facilities to solicit contributions from the
public for any non-official purpose;
35
(e) use the influence of their office to sexually or physically abuse any person,
or to attempt to obtain sexual favours or other undue advantage from any
person; or
(f) direct another person to –
(i) do anything prohibited by this Article for the benefit of the State
officer; or
(ii) perform an unlawful act.
(3) If a State officer is convicted of an offence relating to any of the matters referred in
this Article that State officer shall cease to hold office.
(4) A person who has been dismissed or removed from a State office for contravention of
this Chapter is disqualified from holding any other State office.
Finances of State officers
97. (1) A State officer shall submit a written declaration to the Ethics and Integrity
Commission in the manner and form determined by the Commission, declaring the
properties, assets, and liabilities of the State officer, the State officer’s spouse and the
State officer’s unmarried children who have not attained the age of eighteen years –
(a) immediately upon becoming a State officer;
(b) every year while a State officer; and
(c) on ceasing to be a State officer.
(2) It is a contravention of this Chapter for a State officer to –
(a) fail to make a declaration required by this Article; or
(b) knowingly make a false statement in a declaration filed under this Article.
(3) A State officer shall not –
(a) maintain a bank account in a country outside Kenya except in accordance
with an Act of Parliament; or
(b) seek or accept a personal loan or benefit in circumstances that might
reasonably be considered to compromise the integrity of the State officer.
(4) A gift or donation to a State officer on a public or official occasion is a gift to the
Republic, and shall be delivered to the State to the extent required by, and in
accordance with, an Act of Parliament.
Restriction on activities
98. (1) A full-time State officer shall not participate in any other remunerative activity.
(2) The President, Deputy President and any appointed State officer may not hold office
in a political party.
(3) After retiring, a former State officer who is receiving a pension from public funds
shall not accept more than two remunerative positions as chairperson, director or
employee of –
(a) a company owned or controlled by the State; or
(b) a State organ.
(4) A retired State officer shall not receive any other remuneration from public funds in
addition to a pension and the remuneration of two remunerative positions, as
contemplated in clause (3).
Ethics and Integrity Commission
99. (1) The Ethics and Integrity Commission is established as a constitutional Commission,
consisting of seven members.
(2) The functions of the Commission are –
(a) to receive and retain custody of declarations required by this Chapter;
36
(b) to ensure compliance with and enforce the provisions of this Chapter;
(c) to receive and investigate complaints about non-compliance with this
Chapter and, if appropriate, refer the complaint to the relevant authorities for
action;
(d) to put in place measures aimed at the prevention of corruption, including
issuing guidelines to State organs;
(e) in relation to appointments to offices established by or under this
Constitution, to –
(i) ensure the consistent application of provisions of this Constitution
concerning qualifications for appointment;
(ii) encourage citizens to make themselves available or to propose
other individuals for appointment;
(iii) compile and maintain a register of citizens who are willing to be
appointed to such offices, including citizens who have
distinguished themselves in education, the arts, a profession,
business or public service; and
(iv) recommend persons whether from the register referred to in subparagraph
(iii) or not, to the President or other appointing authority
for appointments to such offices, if so required by this Constitution
or legislation; and
(f) to perform any other functions conferred on the Commission by Parliament.
(3) Whenever this Constitution requires a person or body to nominate persons for
appointment to a constitutional Commission or an office established under this
Constitution, the nomination shall first be submitted to the Commission to determine
whether the nominees possess the required qualifications.
(4) Whenever the power to make an appointment is left to the discretion of the
appointing authority, the Commission shall submit names of suitable candidates for
appointment to the appointing authority from which the appointing authority shall
make the appointments.
(5) Whenever the Commission submits names for appointment under clauses (3) and (4),
the Commission shall –
(a) subject to any provision of this Constitution or of legislation to the contrary,
submit at least one third more names than the number of vacant posts, but in
no case fewer than one more than the number of posts vacant; and
(b) endeavour to ensure that the candidates put forward reflect the national
diversity.
(6) The Commission shall not investigate any matter pending before a court or a judicial
tribunal.
(7) The Commission shall establish and maintain a register in which the assets and
liabilities of State officers are recorded.
(8) The Commission shall make the register of assets and liabilities of State officers
available for public inspection.
Legislation on leadership
100. Parliament shall enact legislation to –
(a) establish procedures and mechanisms for the effective administration of this
Chapter;
(b) prescribe the penalties that may be imposed for breach of the provisions of
this Chapter; and
(c) make any other provision necessary for ensuring the promotion of the
principles of leadership and integrity set out in this Chapter.
37
CHAPTER TEN
REPRESENTATION OF THE PEOPLE
Part I – The Electoral System and Process
General principles
101. (1) The electoral system is based on the right of all eligible citizens to vote and to stand
for election to legislative and executive bodies.
(2) Voting in an election shall be by secret ballot and shall be free and fair.
(3) Elections shall ensure fair representation of women and men, persons with
disabilities, workers, older members of society, youth and other marginalized
communities.
(4) Elections shall be conducted by an independent body, free from political or any other
form of interference.
Elections
102. (1) Parliament shall enact legislation which shall include –
(a) the number and delimitation of electoral units for election of members of the
National Assembly by the Electoral and Boundaries Commission;
(b) the nomination of candidates;
(c) the manner of voting at elections;
(d) the continuous registration of citizens as voters;
(e) the conduct of elections and referenda;
(f) the efficient supervision of elections and referenda; and
(g) the registration of, and voting by, citizens residing outside Kenya.
(2) The nomination of candidates for election to the Senate shall not be based on political
parties.
(3) In the interest of affirmative action –
(a) five per cent of the seats in the National Assembly or the legislature of a
devolved government shall be reserved for persons with disabilities, the
youth, workers and other minorities;
(b) Eight and one-half per cent of the seats in the Senate shall be reserved for
persons with disabilities, elder members of the society, workers and other
minorities,
so that at least one-third of these seats go to women.
Registration as a voter
103. (1) A citizen qualifies for registration as a voter for elections or referenda if at the date of
the application for registration that citizen has attained the age of eighteen years and
has such other qualifications as are provided by legislation.
(2) A citizen who qualifies for registration, as a voter shall be registered at only one
registration centre.
(3) Administrative arrangements for the continuous registration of voters and the conduct
of elections shall not deny an eligible citizen’s right to vote or stand for election.
(4) The question whether a citizen is disqualified to be registered as a voter for elections
or referenda shall be determined by the High Court.
Voting
104. At every election, the Electoral and Boundaries Commission shall ensure that –
(a) the voting procedure is simple;
38
(b) where a ballot box is used, it is transparent;
(c) the votes cast are counted, tabulated and the results announced promptly by
the presiding officer at the polling station;
(d) the results from the polling stations are openly and accurately collated and
promptly announced by the returning officer;
(e) special arrangements are made to accord members of the Kenya Defence
Forces, the Kenya Police and Administration Police, staff of Kenya’s
diplomatic missions, citizens outside Kenya, prisoners, election officials and
patients in hospitals the opportunity to vote; and
(f) appropriate structures and mechanisms to eliminate all forms of electoral
malpractice are put in place, including the safe keeping of all election
materials.
Independent candidates
105. Subject to Article 124 and the qualifications set for the different levels of devolved
governments, a person is eligible to stand as an independent candidate for election as a
member of Parliament or of a legislature of a devolved government, if that person –
(a) is a citizen by birth;
(b) has not been a member of a registered political party for at least six months
prior to the date of the elections for which election is sought;
(c) has been registered by the Electoral and Boundaries Commission as an
independent candidate and complies with the code of conduct prepared by
the Commission for such candidates; and
(d) has been nominated by the following number of registered voters from the
constituency in which the person intends to stand as a candidate –
(i) in the case of Parliament, five hundred registered voters;
(ii) in the case of a Region, one thousand registered voters;
(iii) in the case of a District, five hundred registered voters;
(iv) in the case of a location, one hundred registered voters.
Unopposed candidates
106. Where only one candidate has been nominated by the end of the nomination day previous to
an election, that candidate shall be declared elected.
Representation on international bodies
107. Subject to the relevant treaties or agreements, Parliament shall enact legislation governing the
election and nomination of representatives of the Republic to international legislative bodies.
Part II – The Electoral and Boundaries Commission
Establishment and functions
108. (1) There is established the Electoral and Boundaries Commission.
(2) The Electoral and Boundaries Commission is responsible for –
(a) the continuous registration of voters;
(b) the delimitation of constituencies;
(c) the efficient conduct and supervision of elections and referenda;
(d) the promotion of free and fair elections and referenda;
(e) the supervision of political parties;
(f) the management of the Political Parties Fund;
(g) the settlement of minor electoral disputes during an election;
39
(h) the promotion of voter education and culture of democracy;
(i) the facilitation of the observation, monitoring and evaluation of elections;
(j) the recommendation of administrative boundaries, including the fixing,
reviewing and variation of boundaries of regions, districts and locations; and
(k) the clearing of all presidential, parliamentary and devolved government
candidates in consultation with the Ethics and Integrity Commission.
Delimitation of constituencies
109. (1) The Electoral and Boundaries Commission shall determine the names and boundaries
of the constituencies for the election of members of the National Assembly.
(2) In determining the boundaries and naming of the constituencies, the Commission
shall –
(a) seek to achieve an approximate equality of constituency population , subject
to the need to ensure adequate representation for urban and sparsely
populated areas;
(b) consult all interested parties; and
(c) take account of the history, diversity and cohesiveness of the constituency,
having regard to –
(i) its population density and population trends and projections;
(ii) geographical features and urban centres;
(iii) community of interest and historical, economic and cultural ties;
(iv) means of communications; and
(v) the need to ensure that National Assembly constituencies are
wholly within districts;
(3) The Commission shall at intervals of not more than ten years review and where
necessary alter names and the boundaries of constituencies.
(4) The names and details of the boundaries of constituencies determined under clause
(1) shall be published in the Gazette, and shall come into effect on the dissolution of
Parliament following their publication.
(5) A person may apply to the High Court for review of a decision of the Commission
made under this Article.
Fixing of administrative boundaries
110. (1) In exercising its functions under Article 108(2)(j), the Electoral and Boundaries
Commission shall have regard to the viability, sustainability and effectiveness of a
region, district or location, taking into account –
(a) its population and area;
(b) its historical and cultural ties;
(c) its economic and natural resources; and
(d) the objects and principles of devolution of government.
(2) Parliament, acting in accordance with the recommendations of the Commission may,
amend this Constitution –
(a) to alter or vary the boundaries of a region, district or location; or
(b) to abolish or create a new region, district or location.
(c) Before making any recommendation under Article 108(2)(j), the
Commission shall consult with all the relevant regional, district and
locational authorities.
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Part III – Political Parties
Basic principles
111. (1) A political party shall –
(a) have a national character;
(b) have a democratically elected governing body;
(c) promote and uphold national unity;
(d) abide by the democratic principles of good governance, and promote and
practise democracy through regular, fair and free elections within the party;
(e) respect the right of others to participate in the political process, including
persons with disabilities, workers and other minorities;
(f) promote and respect human rights and gender equality and equity;
(g) promote the objects and principles of this Constitution and the rule of law;
and
(h) subscribe to and observe the code of conduct for political parties.
(2) A political party shall not –
(a) be founded on a religious, linguistic, racial, ethnic, gender, regional basis or
seek to engage in propaganda based on any of those matters;
(b) engage in or encourage violence or intimidation of its members, supporters,
opponents or any other person;
(c) establish or maintain a paramilitary force, militia or similar organization; or
(d) engage in bribery or other forms of corruption.
Regulation
112. (1) Parliament shall enact legislation –
(a) to establish the office of the Registrar of Political Parties, whose functions
shall be to register political parties and any other functions as may be
prescribed;
(b) providing for the functioning of the office of the Registrar; and
(c) providing for the registration and deregistration of political parties and other
related matters.
(2) A political party is entitled after registration to financial support from the State
through the Political Parties Fund in accordance with Article 114.
(3) On registration a political party becomes a body corporate.
(4) Political parties may form a coalition and until that coalition is dissolved all members
of the parties forming that coalition shall be bound by the decision of the coalition.
Political Parties Fund
113. (1) There is established a Political Parties Fund.
(2) The Fund shall be administered by the Electoral and Boundaries Commission.
(3) The sources of the Fund are –
(a) money provided each year by Parliament equal to not more than zero point
three per cent of the national budget for the preceding financial year; and
(b) contributions and donations to the Fund from any other source.
(4) The money in the Fund not immediately required for payment to political parties
shall be invested in securities as may be approved by the Treasury.
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Purposes of the Fund
114. (1) The purpose of the Political Parties Fund is to provide financial support to registered
political parties in the discharge of their roles and functions.
(2) Money allocated to a registered political party from the Fund shall be used –
(a) to cover the election expenses of the political party and the dissemination of
its policies;
(b) for the organization of civic education in democracy and the electoral
processes; and
(c) for the administrative expenses of the party, which expenditure may not
exceed ten per cent of money allocated; and
(d) for any other legitimate purpose.
(3) Money allocated to a political party shall not be used for –
(a) paying directly or indirectly remuneration, fees, rewards or any other benefit
to a member or supporter of the party; or
(b) any other purpose incompatible with the promotion of a multi-party
democracy.
(4) Thirty per cent of the money allocated by Parliament to the Fund shall be distributed
equally among the registered political parties annually on a date to be prescribed by
an Act of Parliament.
(5) Parliament shall, by legislation prescribe the method of distribution of the balance of
the money allocated to the Political Parties Fund by reference to the number of votes
secured by each political party in the previous National Assembly elections and the
number of women candidates and marginalized groups elected through the party at
that election.
(6) Parliament shall enact legislation to provide for the determination, for the purposes of
clause (5), of the number of votes deemed to have been secured by a candidate who
has been declared elected under Article 106.
(7) A political party that has not secured at least one seat in the National Assembly or a
devolved government for each of the two previous elections shall not be entitled to
any money from the Fund.
Other sources of funds
115. (1) A political party may receive subscriptions, donations, and contributions from the
members and supporters of the party.
(2) Parliament shall specify -
(a) sources from which political parties shall not receive subscriptions,
donations or contributions; and
(b) the maximum donation that an individual or an institution or body can make
to a political party.
Accounts and audit
116. (1) A registered political party shall keep proper books and records of account in a form
approved by the Auditor-General.
(2) Within three months after the end of the State financial year, a political party shall
submit its books and records of account to the Auditor-General for audit.
(3) The Auditor-General shall, within three months of the submission of the accounts
under clause (2), audit the accounts and submit the report on the audit to the political
party.
(4) Within one month after the receipt of the audited accounts and the Auditor-General’s
report the political party shall –
(a) publish the accounts and the report in the Gazette and in at least one
newspaper circulating nationally; and
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(b) submit the accounts and report to the Electoral and Boundaries Commission
and to Parliament.
Supervision
117. (1) The Electoral and Boundaries Commission shall supervise the general conduct of
political parties.
(2) A political party shall, within three months after the end of the State financial year,
publish the sources of its funds, clearly stating amounts received from each source.
(3) A political party shall, within seven months after the end of the Government financial
year, submit to the Electoral and Boundaries Commission an annual report of its
activities, which shall include the information referred to in clause (2).
(4) The annual report of a political party shall be deposited by the party, and may be
inspected by any person during normal office hours, at any branch of the party and at
the offices of Electoral and Boundaries Commission.
(5) The Electoral and Boundaries Commission shall prescribe the maximum amount of
money that may be spent by or on behalf of a candidate in respect of any election.
Party discipline
118. (1) A political party has the responsibility to ensure internal party discipline in
accordance with the rules of natural justice.
(2) A political party shall not take disciplinary action against a member of the party for
anything done or said in Parliament by that member.
Restriction on use of public resources
119. Except as is provided under this Chapter or an Act of Parliament, a person shall not use public
resources to promote the interests of a political party.
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CHAPTER ELEVEN
THE LEGISLATURE
Part I – Establishment and role of Parliament
Establishment
120. There is established a Parliament of Kenya, which shall consist of the Senate and the National
Assembly.
Exercise of sovereignty
121. (1) The legislative authority of the Republic at the national level is vested in Parliament.
(2) Parliament manifests the cultural diversity of the nation and represents the will of the
people by –
(a) enacting legislation;
(b) deliberating and resolving issues of concern to the people;
(c) considering and passing amendments to this Constitution;
(d) approving the sharing of revenue among the four levels of government and
appropriating funds for expenditure by the departments of the Government;
(e) ensuring equity in the distribution of national resources and opportunities
among all parts and communities of Kenya;
(f) scrutinizing and overseeing actions of State organs;
(g) considering and approving treaties;
(h) approving appointments, when required by this Constitution or legislation;
(i) reviewing the conduct in office of the President, the Deputy President and
other State officers and, if necessary, initiating the process to remove them
from office; and
(j) approving declarations of states of emergency or war.
(3) A person or body other than Parliament shall not have power to make provision
having the force of law in Kenya except under authority conferred by this
Constitution or by legislation.
Part II – Composition and membership of Parliament
Membership of the Senate
122. (1) The Senate shall consist of –
(a) one member elected from each district by the district council of that district
acting as an electoral college, to represent the region of which the district
forms part;
(b) two women elected from each region by an electoral college consisting of
all the elected members of district councils within the region;
(c) ten members to represent marginalized groups; and
(d) the Speaker.
(2) Elections under clause (1)(c) shall be by electoral colleges of the respective
marginalized groups as provided for by legislation.
Membership of the National Assembly
123. (1) The National Assembly shall consist of –
(a) one member elected from each constituency as may be provided by law;
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(b) one woman elected from each district, each of which shall comprise a
single-member constituency;
(c) fourteen members elected by marginalized groups; and
(d) the Speaker.
(2) Elections under clause (1)(c) shall be by electoral colleges of the respective
marginalized groups as provided for by legislation.
(3) A member referred to under clause (1)(c) shall serve as such a member for only one
term.
(4) Parliament shall enact legislation to give effect to this Article.
Qualifications and disqualifications of members
124. (1) Unless disqualified under clause (2), a person is eligible to be a member of
Parliament if that person –
(a) is a citizen by birth;
(b) is registered as a voter;
(c) satisfies any educational, moral and ethical requirements prescribed by this
Constitution or legislation; and
(d) in the case of a candidate for election to the National Assembly –
(i) is nominated by a political party; or
(ii) being an independent candidate, is supported by at least five
hundred registered voters in the constituency concerned in the
manner determined by the Electoral and Boundaries Commission.
(2) A person is disqualified from being elected a member of Parliament if that person –
(a) holds a State office or public office, other than as a member of Parliament;
(b) is of unsound mind;
(c) is an undischarged bankrupt;
(d) is serving a sentence of imprisonment of at least six months;
(e) has, at any time in the immediately preceding ten years, served a term of
imprisonment for the commission of an offence in Kenya, if that sentence
was for a period of at least three years;
(f) has been removed from a State office or public office on grounds of gross
misconduct; or
(g) has been found in accordance with any law to have misused or abused a
State office or public office or in any way to have contravened the principles
of Article 97.
(3) A person is not disqualified under clause (2) unless all possibility of appeal or review
of the sentence or decision has been exhausted.
Election of members of Parliament
125. (1) An election of members of either House of Parliament shall be held on the Tuesday
immediately preceding the twenty-eight days before the expiration of the term of that
House.
(2) Whenever a vacancy occurs in the office of a member of the National Assembly or of
a member of the Senate referred to in Article 122(1)(c) –
(a) the relevant Speaker shall, within twenty-one days of the occurrence of the
vacancy, give notice in writing of the vacancy to the Electoral and
Boundaries Commission; and
(b) subject to clause (4), a by-election shall be held within ninety days of the
occurrence of the vacancy.
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(3) Whenever a vacancy occurs in the office of a member of the Senate referred to in
Article 122(1)(a) or (b) –
(a) the Speaker shall, within twenty-one days of the occurrence of the vacancy,
give notice in writing of the vacancy to –
(i) the district council by which the member was elected; or
(ii) the regional legislative assembly for the relevant region; and
(b) that council or assembly shall nominate a replacement member within a
further period of twenty-one days.
(4) A by-election shall not be held within three months before the holding of an election.
Vacation of office of member of Parliament
126. (1) The office of member of Parliament becomes vacant –
(a) if the member resigns in writing addressed to the respective Speaker;
(b) if that person becomes disqualified for election under Article 124(2);
(c) upon expiration of the life of Parliament;
(d) if the member is absent from the relevant House on any eight sitting days
during a session without permission in writing of the respective Speaker,
and is unable to offer a satisfactory explanation for the absence to the
relevant committee;
(e) if the member is removed from office under legislation made under Article
100;
(f) if the member leaves the political party for which the member stood as a
candidate for election to the National Assembly or leaves a coalition of
parties to which that member belongs; or
(g) if, having been elected to Parliament as an independent candidate, the
member joins a political party.
(2) A member of the National Assembly, a regional legislative assembly or a district or
locational council who is expelled from a party shall not lose that member’s seat in
the relevant assembly or council.
(3) The creation or dissolution of a coalition of which a member’s political party forms
part or the dissolution of a political party or a merger of more than two parties shall
not amount to the member’s leaving the party for the purposes of clause (1)(f).
(4) In this Article, “session” means the period commencing on the first Tuesday of
February in any year and ending on the following thirtieth November.
Determination of questions of membership
127. (1) The High Court shall hear and determine any question whether –
(a) any person has been validly elected or nominated as a member of
Parliament; or
(b) the seat of any member has become vacant.
(2) A question referred to in clause (1) shall be heard and determined within six months
of the date of lodging the petition.
Part II – Officers of Parliament
Speakers and Deputy Speakers of Parliament
128. (1) There shall be –
(a) a Speaker for each House of Parliament who shall be elected by that House
in accordance with the Standing Orders, from among persons who are
qualified to be elected as members of Parliament but are not such members;
and
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(b) a Deputy Speaker for each House of Parliament who shall be elected by that
House, in accordance with the Standing Orders, from among the members of
that House.
(2) The office of Speaker or the Deputy Speaker shall become vacant –
(a) when a new House of Parliament first meets after an election;
(b) if the office holder becomes disqualified under Article 124(2);
(c) if the relevant House so resolves by resolution supported by the votes of not
less than sixty-five per cent of its members;
(d) if the office holder dies; or
(e) if the office holder resigns from office in a letter addressed to the relevant
House.
Presiding in Parliament
129. At any sitting of a House of Parliament –
(a) the Speaker presides; or
(b) in the absence of the Speaker, the Deputy Speaker presides; or
(c) in the absence of the Speaker and the Deputy Speaker, such other member
of the relevant House as the House may elect for that purpose presides.
Leader of the Opposition
130. (1) The largest parliamentary party or coalition of parliamentary parties in the National
Assembly not forming the Government shall elect from among their members of
Parliament, the Leader of the Opposition.
(2) In relation to the conduct of the business in the National Assembly, the Leader of the
Opposition shall –
(a) rank in precedence immediately following the President, the Deputy
President, the Prime Minister and the Speaker; and
(b) have the right of second reply, after the Prime Minister, to an address to the
Assembly by the President.
(3) The Standing Orders of the National Assembly shall provide for the effective
participation in the Assembly of the Leader of the Opposition.
Clerk and staff of Parliament
131. (1) There shall be a Clerk for each House of Parliament who shall be appointed by the
Parliamentary Service Commission with the approval of the relevant House.
(2) The office of Clerk and offices of members of the staff of the Clerk shall be offices in
the parliamentary service.
(3) Subject to clause (4), a Clerk shall retire on attaining the age of sixty-five years.
(4) Either House may by resolution supported by the votes of not less than sixty-five per
cent of all the members of that House remove the Clerk.
Part IV – Legislation and Procedure in Parliament
Exercise of legislative powers
132. (1) Parliament shall exercise its legislative power by Bills passed by Parliament and
assented to by the President.
(2) Any member, or committee, of Parliament may introduce Bills in Parliament.
(3) A Bill may originate in either House but a money Bill may originate only in the
National Assembly.
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(4) A Bill for an Act of Parliament that would confer a pecuniary benefit specifically on
members of Parliament or the Cabinet may not be introduced in Parliament unless it
has been approved by the Salaries and Remuneration Commission.
(5) Every Bill for legislation introduced in Parliament must be accompanied by an
explanatory memorandum, outlining -
(a) any Bill of Rights limitations or derogations, or any other constitutional
implications;
(b) any public participation during the preparation of the Bill; and
(c) any further public participation that is recommended before the Bill is
enacted.
(6) The relevant Committee shall-
(a) determine the nature and extent of public participation for each Bill for
legislation introduced in Parliament; and
(b) facilitate that participation, and ensure that it is adequately carried out.
(7) Parliament shall equitably allocate time for consideration of Bills.
Money Bills
133. (1) A money Bill may be introduced only by a Minister.
(2) In this Chapter “money Bill” means a Bill that contains provisions dealing with –
(a) the imposition, repeal, remission, alteration or regulation of taxes;
(b) the imposition of charges on the Consolidated Fund or any other fund of the
Government or the variation or repeal of any of those charges;
(c) the appropriation, receipt, custody, investment, issue or audit of accounts of
public money;
(d) the grant of money to any person or authority or the variation or revocation
of public money;
(e) the raising or guaranteeing of any loan or the repayment thereof; or
(f) subordinate matters incidental to any of those matters.
(3) In clause (2), the expressions “tax”, “public money”, and “loan” do not include any
tax, public money or loan raised by devolved governments.
Consideration by the other House
134. (1) When a Bill has been passed by one House of Parliament, the Speaker of that House
shall refer it to the Speaker of the other House for introduction, consideration and
passage.
(2) If both Houses pass a Bill in the same form, the Speaker of the House in which the
Bill originated shall within seven days refer the Bill to the President for assent.
(3) If one House passes a Bill and the other House rejects it, the Bill is defeated unless it
is a money Bill.
(4) When a Bill that in the opinion of the Speaker of the National Assembly is a money
Bill, in terms of Article 133(2), is referred to the Senate from the Assembly it shall
bear a certificate of the Speaker of the Assembly that it is a money Bill.
(5) Where a Bill that is referred to the Senate in accordance with clause (4) is not passed
by the Senate within fourteen days after it is so referred, the Bill shall be presented to
the President for assent.
(6) If one House passes a Bill, other than a money Bill, and the other House passes an
amended version of it, the Speaker of the originating House shall call for a second
vote on the Bill as amended, and shall present it to the President for assent if that
House passes the Bill as amended.
(7) If a Bill referred to in clause (6) is not passed in its amended form by the originating
House the Speakers of both Houses shall appoint a mediation committee consisting
48
of equal numbers of members of each House to review the different texts and attempt
to develop a compromise text.
(8) If the mediation committee agrees on a compromise text each House may vote to
approve or reject the compromise text.
(9) If both Houses approve the compromise text, the Speaker of the originating House
shall within seven days present the Bill to the President for assent.
(10) If the mediation committee fails to reach a compromise within thirty days, or if a
compromise text is rejected by either House, the Bill is defeated.
Presidential assent and referral
135. (1) Within fourteen days after receipt of the Bill, the President shall –
(a) assent to the Bill; or
(b) refer the Bill back to the Speaker for reconsideration by Parliament, noting
any reservations that the President has concerning the Bill.
(2) If the President refers a Bill back for reconsideration by Parliament, Parliament may
either –
(a) amend the Bill in light of the President’s reservations; or
(b) pass the Bill a second time without amendment.
(3) If Parliament has amended the Bill, the appropriate Speaker shall submit it afresh to
the President for assent.
(4) If Parliament, after considering the President’s reservations, passes the Bill a second
time, by vote supported by two-thirds of all members of each House, without
amending it –
(a) the appropriate Speaker shall within seven days re-submit it to the President;
and
(b) the President shall within seven days assent to the Bill.
(5) If the President refuses or fails to assent to a Bill within the period prescribed in
clause (1), the Bill shall be taken to have been assented to upon the expiration of that
period.
Coming into force of laws
136. (1) A Bill passed by Parliament and assented to by the President –
(a) shall be published in the Gazette within seven days of the assent; and
(b) comes into force on the fourteenth day after its publication in the Gazette
unless the Act otherwise provides.
(2) An Act which confers a direct pecuniary interest on members of Parliament shall not
come into force until after the dissolution of the Parliament that passed the Act.
(3) Clause (2) does not apply to an interest which members of Parliament have as
members of the public.
Right to petition Parliament
137. Every person has a right to petition Parliament to enact, amend or repeal any legislation.
Quorum
138. The quorum of either House shall be thirty per cent of all members of that House.
Official language in Parliament
139. The official languages of Parliament shall be Kiswahili, English and sign language.
Voting in Parliament
140. (1) Except as otherwise provided in this Constitution, any question proposed for decision
in Parliament shall be determined by a majority of the members present and voting in
each House.
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(2) On a question proposed for decision in either House –
(a) the Speaker shall have no vote; and
(b) in the case of a tie, the question shall be lost.
(3) The vote of a member who votes upon a question in which the member has a direct
pecuniary interest shall not be counted.
Decisions of Senate
141. (1) In the Senate, except where this Constitution provides otherwise –
(a) each region, and the marginalized groups, shall have one vote, to be cast on
behalf of the region or marginalized group by the head of its delegation or,
in the absence of the head of the delegation, by another member of the
delegation acting on behalf of the head of the delegation; and
(b) all questions shall be determined by a two-thirds majority of those
delegations.
(2) National legislation which is enacted in accordance with the procedure established
for the passing of bills affecting regions and districts, shall provide for a uniform
procedure in terms of which the delegations in the Senate shall consult for the
purposes of clause (1)(a).
(3) A Senator representing a region –
(a) may, on the Senator’s own motion; and
(b) shall, at the request of the relevant regional legislative assembly,
attend, and speak at, a meeting of that assembly, but shall not vote.
(4) A member of the Cabinet or a Deputy Minister may attend and speak in the Senate,
but shall not vote.
Regulation of procedure
142. (1) Each House of Parliament may –
(a) regulate its own procedure and shall make Standing Orders for the orderly
conduct of its proceedings;
(b) establish committees in such manner and for such general or special
purposes as it deems fit and shall regulate the procedure of any such
committee.
(2) Parliament may establish joint committees consisting of members of both Houses and
may jointly regulate the procedure of those committees.
(3) Any reference in this Constitution to a member of a committee of a House of
Parliament shall, unless the context otherwise requires, be construed as including a
reference to a member of such a joint committee.
(4) The proceedings of either House are not invalid by reason only –
(a) that there is a vacancy in its membership; or
(b) of the presence or participation of any person not entitled to be present at or
to participate in the proceedings of the House.
Power to call for evidence
143. In the exercise of its functions –
(a) either House or any of its committee may call any Minister or any person
holding public office and private individuals to submit memoranda or
appear before it to give evidence;
(b) a committee of either House may co-opt any member of Parliament or
employ qualified persons to assist it in the discharge of its functions; and
(c) either House or any of its committee shall have the powers of the High
Court in –
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(i) enforcing the attendance of witnesses and examining them on oath,
affirmation or otherwise;
(ii) compelling the production of documents; and
(iii) issuing a commission or request to examine witnesses abroad.
Public access and participation
144. (1) Parliament shall –
(a) conduct its business in an open manner, and hold its sittings and those of its
committees, in public; and
(b) facilitate public involvement in the legislative and other business of
Parliament and its committees.
(2) Parliament may not exclude the public, or any public or private media, from any
sitting unless in exceptional circumstances, the appropriate Speaker has determined
that there are justifiable reasons for doing so.
Powers, privileges and immunities
145. (1) There shall be freedom of speech and debate in Parliament and that freedom shall not
be impeached or questioned in any court or tribunal.
(2) Parliament may, for the purpose of the orderly and effective discharge of the business
of Parliament provide for the powers, privileges and immunities of Parliament and its
committees and members.
Part V – Miscellaneous
Registry of Enactments
146. (1) Parliament shall establish –
(a) a public Registry of Enactments, which shall be maintained in Kiswahili and
English, in both visual and Braille form, under the custody of the Speaker of
the National Assembly; and
(b) additional procedures concerning the coming into force, publication and
dissemination of legislation.
(2) A copy of each enactment shall be deposited for safekeeping in the Registry of
Enactments.
(3) A copy of an enactment deposited at the Registry which is certified to be correct by
the Registrar, is conclusive evidence of the provisions of that enactment.
(4) In case of a conflict between different language versions of an enactment, the version
signed by the President or on behalf of the assembly or council of a devolved
government shall prevail.
(5) The Government shall ensure that enactments –
(a) are available or accessible in all public libraries; and
(b) are available in Braille and other appropriate media for persons with visual
or other impairments.
Seat of Parliament
147. (1) Subject to clause (2), the seat of Parliament shall be Nairobi.
(2) A sitting of either House shall be held at such place within Kenya, and shall
commence at such time, as the House may appoint.
(3) Whenever a new House is elected, the President shall, by notice in the Gazette,
appoint the place and a date, not more than seven days after the expiration of the term
of the previous House, for the first sitting of the new House.
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Life and prorogation of Parliament
148. (1) The life of each House of Parliament is five years from the date of its first sitting
after an election.
(2) At any time when the Republic is at war, both Houses may from time to time by
resolution supported by the votes of not less than sixty-five per cent of all the
members of each House, extend the term of Parliament for not more than six months
at a time.
(3) The life of Parliament shall not be extended under clause (2) –
(a) by more than twelve months; or
(b) before its expiration after an election is held in terms of Article 125(1).
(4) Subject to this Article, both Houses of Parliament shall stand prorogued on the
thirtieth day of November in every year and the next session shall commence on the
first Tuesday of February in the next year.
Parliamentary Service Commission
149. (1) There is established the Parliamentary Service Commission which shall consist of –
(a) a chairperson and a vice-chairperson elected by the Commission from the
members appointed under paragraph (b);
(b) seven members appointed by Parliament from among its members of
whom –
(i) four shall be nominated equally from both Houses by the party or
coalition of parties forming the Government of which at least two
shall be women; and
(ii) three shall be nominated by the party or coalition of parties not
forming the Government, at least one of whom two shall be
nominated from each House and whom at least one shall be a
woman; and
(c) two members of opposite gender appointed by Parliament from among
persons who are not members of Parliament and are experienced in public
affairs.
(2) A member of the Commission shall vacate office –
(a) if that person is a member of Parliament –
(i) upon expiration of the life of Parliament;
(ii) if that person ceases to be a member of Parliament; or
(iii) if circumstances arise that, if that person were not a member of
Parliament, would disqualify that person to be elected as such; or
(b) if that person is an appointed member, upon revocation of that person’s
appointment by Parliament.
(3) The Commission is responsible for the following functions –
(a) providing necessary services and facilities to ensure efficient and effective
functioning of Parliament;
(b) constituting offices in the parliamentary service, and appointing and
supervising office holders;
(c) preparing annual estimates of expenditure (which shall be a charge on the
Consolidated Fund) of the parliamentary service, and exercising budgetary
control over the service;
(d) undertaking, singly or jointly with other relevant organizations, programmes
to promote the ideals of parliamentary democracy; and
(e) carrying out other functions –
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(i) necessary for the well-being of the members and staff of
Parliament; or
(ii) prescribed by or under legislation.
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CHAPTER TWELVE
THE EXECUTIVE
Part 1 – Principles and Structure of the National Executive
Principles of executive authority.
150. (1) The powers of the Executive are to be exercised for the well-being and benefit of the
people and the communities of Kenya.
(2) An office bearer who is assigned an executive authority by or under this
Constitution –
(a) shall serve the people, and shall not act in a manner incompatible with the
principle of service to the people; and
(b) shall exercise that authority in a manner consistent with the purpose and
objects of this Constitution and the laws.
(3) The composition of the national executive shall reflect the regional and ethnic
diversity of the people of Kenya.
Structure of the National Executive
151. The executive authority of the Republic at the national level of government is vested in the
President, the Deputy President, the Prime Minister, and Ministers, all of whom, in the
performance of their respective functions, shall work in harmony for the good of Kenya and
the progress of the people of Kenya.
Part II – The President and Deputy President
Authority of President
152. (1) There shall be a President of the Republic.
(2) The President –
(a) is the Head of State, Commander-in-Chief of the Kenya Defence Forces,
and the Chairperson of the National Security Council;
(b) is a symbol of national unity, and has responsibility to promote and enhance
the unity of the nation, safeguard the sovereignty of the Republic, promote
and respect the diversity of the people, and the communities of Kenya; and
(c) shall uphold, safeguard, and respect this Constitution and ensure the
protection of human rights and fundamental freedoms and the rule of law.
(3) The powers of the President shall be exercised in accordance with this Constitution
and the laws.
(4) The President shall not hold any other public office or any elected or appointed office
within a political party.
State functions of President
153. (1) The President –
(a) shall address the opening of each newly elected Parliament;
(b) shall liaise with the Prime Minister and once every year in an address to the
nation, in a special sitting of Parliament, report on all the measures taken
and the progress achieved in the realization of the national values, principles
and goals set out in Chapter Three; and
(c) may address Parliament at any other time; and
(2) The President shall appoint and may dismiss –
(a) the Prime Minister;
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(b) the two Deputy Prime Ministers;
(c) Ministers and Deputy Ministers;
(d) judges of the superior courts of record; and
(e) any other public officer whom this Constitution requires the President to
appoint.
(3) With the prior approval of the National Assembly, the President may sign
instruments of consent by the Republic to be bound by treaties.
(4) Having been consulted by the Cabinet, the President may, in accordance with the
advice of the Cabinet and subject to Article 76 –
(a) declare a state of emergency; or
(b) declare war.
(5) The President may –
(a) on the advice of the Cabinet –
(i) appoint high commissioners, ambassadors, and diplomatic and
consular representatives with the approval of the Assembly; and
(ii) receive foreign diplomatic and consular representatives;
(b) exercise the powers of mercy in accordance with Article 166; and
(c) acting in accordance with the advice of the Ethics and Integrity
Commission, confer honours in the name of the people and the Republic.
(6) The President shall liaise with the Prime Minister to ensure that –
(a) the international obligations of the Republic are fulfilled through the actions
of the relevant Ministers and shall submit a progress report to Parliament
annually; and
(b) the courts, constitutional Commissions and State officers are able to secure
their independence, impartiality, dignity, accessibility and effectiveness, as
contemplated in this Constitution.
Legislative functions of President
154. (1) When presented with a Bill passed by Parliament, the President shall act in
accordance with Article 135.
(2) The President shall ensure that public participation requirements concerning the
enactment of legislation and regulations have been satisfied by Parliament.
Decisions of President
155. A decision by the President under the authority of this Constitution or of any other legislation
shall be in writing and shall bear the seal and signature of the President.
Right to vote and timing of presidential elections.
156. (1) The election of the President shall be by direct adult suffrage through a secret ballot
and shall be conducted in accordance with this Part and with any Act of Parliament
regulating presidential elections.
(2) An election of the President shall be held –
(a) on the second Tuesday in August every fifth year; or
(b) in the circumstances contemplated by Article 165.
Qualifications and disqualifications for election as President
157. (1) A person qualifies for nomination as a presidential candidate if that person –
(a) is qualified to stand for election as a member of the National Assembly; and
(b) is nominated –
(i) by a registered political party; or
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(ii) as an independent candidate by at least one thousand registered
voters who shall include not less than one hundred registered voters
from each region.
(2) A person is not qualified for nomination as a presidential candidate if that person –
(a) owes allegiance to a foreign state;
(b) holds or is acting in any office in the public service, including the office of
judge, magistrate or other judicial office, in the defence forces of the
Republic, or in any level of devolved government;
(c) is a member of a constitutional Commission;
(d) is a member of Parliament;
(e) is a candidate for election as a member of Parliament; or
(f) has ever been removed from any office on grounds of any violation of this
Constitution or for gross misconduct.
Procedure at presidential election
158. (1) If only one candidate for President is nominated, that candidate shall be declared
elected as President.
(2) If two or more candidates for President are nominated, an election shall be held in
each electoral unit.
(3) In a presidential election –
(a) all persons registered as voters for the purposes of parliamentary elections
are entitled to vote;
(b) the poll shall be taken by a secret ballot on the day specified in Article 156
at such time, in such places and in such manner as may be prescribed by or
under an Act of Parliament; and
(c) after counting of the votes in the polling stations, the Electoral and
Boundaries Commission shall declare the result.
(4) The candidate for President who receives more than fifty per cent of all the votes cast
in the election and who, in addition, receives a minimum of twenty-five per cent of
the votes cast in more than half of the regions shall be declared elected as the
President.
(5) If a candidate is not elected a fresh election shall be held within three weeks of the
previous election and in that fresh election, the only candidates shall be –
(a) the candidate who received the greatest number of votes; and
(b) the candidate who received the second greatest number of votes,
and the candidate who receives the greater number of votes shall be declared elected
as President.
(6) A presidential election shall be cancelled and a new election held if –
(a) a candidate has not been nominated before the expiry of the period set for
the delivery of nominations;
(b) a candidate dies on or before any of the days on which the election is held or
is to be held; or
(c) a candidate who would, but for the candidate’s death, have been entitled to
be declared elected as President, dies after the taking of the poll has began
but before the candidate is declared elected as President.
(7) A new election shall be held under clause (6) within sixty days of the date set for the
previous presidential election.
(8) The chairperson of the Electoral and Boundaries Commission shall deliver a written
declaration of the results of a presidential election to the incumbent President and to
the Chief Justice within seven days of the election.
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Questions as to validity of presidential election
159. (1) A person may file a petition in the Supreme Court to challenge the election of the
President-elect.
(2) The petition shall be filed within seven days after the date of the announcement of
the results of the presidential election by the Electoral and Boundaries Commission.
(3) The Supreme Court shall, within seven days of the filing, determine the petition.
Assumption of office of President
160. The President-elect –
(a) shall be sworn in –
(i) on the first Tuesday following the twenty one days after the date of
the announcement of the results of the presidential election by the
Electoral and Boundaries Commission; or
(ii) within seven days of the determination by the Supreme Court of the
election petition filed under Article 159; and
(b) assumes office by taking and subscribing –
(i) the oath or affirmation of allegiance; and
(ii) the oath or affirmation for the execution of the functions of office,
as prescribed in the Third Schedule, before the Chief Justice or a Judge of
the Supreme Court on the date when the term of office of the incumbent
President expires.
Term of office of President
161. (1) The President shall hold office for a term not exceeding five years beginning from
the date of assumption of office.
(2) A person shall not hold office as the President for more than two terms.
(3) A person who has continuously served as President for at least two and a half years
shall be deemed to have served a full term.
Protection from legal proceedings
162. (1) Criminal proceedings shall not be instituted or continued in any court against the
President or a person performing the functions of that office, during their tenure of
office.
(2) Civil proceedings shall not be instituted in any court against the President or the
person performing the functions of that office during their tenure of office in respect
of anything done or not done in the exercise of their powers under this Constitution.
(3) Where provision is made by law limiting the time within which proceedings may be
brought against a person, a period of time during which that person holds or performs
the functions of the office of the President shall not be taken into account in
calculating the period of time prescribed by that law.
Removal of President on grounds of incapacity
163. (1) A member of the National Assembly may, at any sitting of the Assembly, propose a
motion for the removal from office of the President on the ground of the physical or
mental capacity of the President to perform the functions of office.
(2) If it is resolved by one half of all the members of the Assembly that the question of
the physical or mental capacity of the President to perform the functions of the office
ought to be investigated, the Speaker shall, within seven days of the resolution,
appoint a medical board of five persons registered as medical practitioners under the
laws of the Republic –
(a) four of whom shall be nominated by the Medical Practitioners and Dentists
Board; and
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(b) the other one shall be nominated by the President or a close relative or a
member of the family of the President;
and the President shall submit to examination by the medical board.
(3) Where the Assembly resolves that the question of the physical or mental capacity of
the President to perform the functions of the office be investigated, the President
shall, until another person assumes the office of President or the medical board
appointed under clause (2) reports that the President is incapable of performing the
functions of the office, whichever is earlier, continue to perform the functions of the
office.
(4) The medical board shall examine the President and report to the Speaker of the
Assembly within fourteen days of the appointment of the medical board by the
Speaker.
(5) The Speaker of the Assembly shall within three days certify in writing accordingly
and take the certificate together with the report of the medical board before the
Assembly.
(6) Where the medical board reports that the President is capable of performing the
functions of the office, the Speaker of the Assembly shall inform the Assembly
accordingly.
(7) If the medical board reports that the President is incapable of performing the
functions of the office the Speaker of the Assembly shall inform the Assembly
accordingly and the President shall cease to hold office.
Impeachment and removal of President
164. (1) A member of the National Assembly may, at any sitting of the Assembly, propose a
motion for the impeachment of the President on the grounds of –
(a) a violation of a provision of this Constitution; or
(b) gross misconduct.
(2) If two thirds of the members of the Assembly approve a motion under clause (1), the
Speaker of the Senate shall convene a meeting of the Senate to hear charges against
the President.
(3) The Speaker of the Senate shall –
(a) if the Senate is then sitting or has been summoned to meet, bring the motion
to the notice of the Senate for its consideration within seven days; or
(b) if the Senate is not then sitting, summon it to meet within twenty-one days
of the notice to consider the motion.
(4) If a motion is passed under clause (3), the Senate shall appoint thirteen of its
members as a special committee in accordance with the Standing Orders of the
Senate to investigate the matter.
(5) The special committee shall investigate the matter and shall, within ten days, report
to the Senate whether it finds the particulars of the allegations against the President to
have been substantiated.
(6) The President shall have the right to appear and be represented before the special
committee during its investigations.
(7) If the special committee reports that the particulars of any allegation against the
President have not been substantiated, further proceedings shall not be taken under
this Article in respect of that allegation.
(8) If the special committee reports that the particulars of any allegation against the
President have been substantiated, the Senate shall vote on impeachment charges and
the President shall cease to hold office if two-thirds of the members vote to uphold
the impeachment charges.
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Vacancy in the office of President
165. (1) Where a vacancy occurs in the office of the President by reason of the President’s
death, resignation or ceasing to hold office by virtue of Article 163 or 164, the
Deputy President shall assume office as the President.
(2) Where a vacancy occurs in the office of the President and that of the Deputy
President, the Speaker of the National Assembly shall assume the functions of the
office of the President.
(3) Where the Speaker of the Assembly cannot for any reason assume the office of the
President under clause (2), the Speaker of the Senate shall assume those functions.
(4) In the case of a vacancy as described in clauses (1) and (2), the Electoral and
Boundaries Commission shall conduct a presidential election within sixty days of the
vacancy in the office of the Deputy President.
Presidential powers of mercy
166. (1) There shall be a power of mercy which shall be exercised on the petition of any
person by the President in accordance with the advice of the Committee referred to in
clause (3), which power of clemency shall not be delegated to any other person.
(2) Parliament shall enact legislation establishing criteria that shall be applied by the
Advisory Committee referred to in clause (3) in formulating its advice referred to in
clause (1).
(3) There shall be an Advisory Committee on the Presidential Power of Mercy, which
shall consist of –
(a) the Attorney-General;
(b) the Minister responsible for the Kenya Correctional Services;
(c) a medical practitioner nominated by the Medical Practitioners and Dentists
Board;
(d) the head of the probation service;
(e) a person nominated by the Commission on Human Rights and
Administrative Justice;
(f) three persons, each of whom shall be nominated by each of the religious
organisations representative of the Christian, Muslim and Hindu faiths; and
(g) one advocate of at least fifteen years’ standing nominated by the Law
Society of Kenya.
(4) Members of the Advisory Committee appointed under clause (3)(c), (e), (f) and (g)
shall remain members of the Advisory Committee, provided that they remain
qualified, for a period of one year and may retain their membership for two further
terms of one year.
(5) The Advisory Committee may act despite there being a vacancy in its membership.
(6) The Advisory Committee may regulate its own procedure.
(7) In exercise of the powers conferred by clause (1) the President may –
(a) grant to a person convicted of an offence a pardon, either free or subject to
lawful conditions;
(b) postpone, either for a specified period or indefinitely, the carrying out of a
punishment imposed on a person;
(c) substitute a less severe form of punishment for a punishment imposed on a
person for an offence; or
(d) remit the whole or part of a punishment imposed on a person for an offence.
(8) The Advisory Committee may take into account the views of the victims of the
offence in respect of which it is considering recommending the exercise of the power
of clemency by the President .
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Office of Deputy President
167. (1) There shall be a Deputy President of the Republic.
(2) Each candidate in a presidential election shall nominate a person, duly qualified for
election as the President, as a candidate for Deputy President.
(3) The Electoral and Boundaries Commission shall not conduct a separate election for
the Deputy President but shall declare the candidate nominated by the person who is
elected as the President to be elected as the Deputy President.
(4) A person declared elected as the Deputy President shall take and subscribe the oath
or affirmation of allegiance and the oath or affirmation for the due execution of the
functions of the office, as prescribed in the Third Schedule, before the Chief Justice
or a Judge of the Supreme Court.
(5) The term of office of the Deputy President shall run from the date the President
assumes office and shall terminate –
(a) when the next President assumes office;
(b) upon the Deputy President assuming the office of President; or
(c) on resignation, death or removal from office.
(6) The Deputy President may, at any time, resign from office by notice in writing
addressed to the President and the resignation shall take effect on the date and at the
time specified in the notice, if any, or if a date is not specified, at noon on the day
after the notice is delivered.
(7) The provisions of Articles 163 and 164 as to the removal from office and
impeachment of the President shall, with the necessary alterations, apply to the office
of the Deputy President.
(8) The Deputy President shall not serve for more than two terms.
(9) A person who has continuously served as Deputy President for at least two and a half
years during the term of a President shall be deemed to have served a full term.
Vacancy in the office of Deputy President.
168. (1) If there is a vacancy in the office of the Deputy President, the President shall
nominate a candidate qualified in terms of Article 167 to be the Deputy President.
(2) A nomination under clause (1) shall be in writing and shall be submitted to the
Speakers of both Houses of Parliament within fourteen days of the vacancy.
(3) Both Houses may, by a resolution supported by the votes of two-thirds of the
members of each House, approve the person nominated under this Article as the
Deputy President.
(4) If Parliament does not approve the nomination under clause (3), the President shall
make another nomination in terms of clause (1).
(5) If Parliament does not approve the nomination under clause (4), the President shall
appoint a person to be the Deputy President.
(6) A person approved or appointed as Deputy President under clause (3), (4) or (5),
shall assume office in the manner specified in Article 167(4).
(7) The term of office of a Deputy President appointed under this Article shall run from
the date the Deputy President assumes office and shall terminate in the manner
specified in Article 167(5).
Functions of the Deputy President
169. (1) The Deputy President shall be the principal assistant of the President in the execution
of the President’s functions.
(2) The Deputy President shall perform the functions conferred by this Constitution and
any other functions as the President may assign.
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(3) When the President is temporarily incapacitated or absent from the Republic, the
Deputy President shall act as the President.
(4) The Deputy President shall not hold any other State or public office or any elective or
appointive office within a political party.
Death before assuming office
170. (1) If a person elected as President dies before assuming office, the person declared
elected as the Deputy President shall assume the office of President and the office of
the Deputy President shall become vacant.
(2) If a person declared elected as the Deputy President dies before assuming office, the
office of the Deputy President shall be declared vacant on the assumption of office by
the person declared elected as the President.
(3) If both the persons declared elected as the President and the Deputy President die
before assuming office, the Speaker of the National Assembly shall act as President
and the Electoral and Boundaries Commission shall conduct a fresh election within
sixty days of the second death.
Remuneration and benefits of President and Deputy President
171. (1) The remuneration and benefits payable to the President or Deputy President shall be
a charge on the Consolidated Fund.
(2) The remuneration and benefits and privileges of the President or Deputy President
shall not be varied to their disadvantage while in office or on retirement.
(3) The retirement benefits payable to a former President or Deputy President and the
facilities available to them shall not be varied to their disadvantage during their
lifetime.
Part III – The Prime Minister and Cabinet
Prime Minister
172. (1) There shall be a Prime Minister of the Republic, who shall be the Head of
Government.
(2) The Prime Minister shall co-ordinate the work of the ministries and the preparation
of legislation, and is responsible to Parliament.
(3) The Prime Minister shall preside at meetings of the Cabinet.
(4) In the absence of the Prime Minister, one of the Deputy Prime Ministers designated
by the Prime Minister shall perform the functions of the Prime Minister.
(5) The Deputy Prime Minister when performing the functions of the Prime Minister
under clause (4) shall not exercise a power of the Prime Minister in relation to –
(a) nomination or recommendation for appointment to a public office; or
(b) the allocation of functions to or the transfer of functions from a Deputy
Prime Minister, Minister or Deputy Minister.
Appointment of Prime Minister
173. (1) Within seven days following the summoning of the National Assembly after an
election, or whenever necessary to fill a vacancy in the office of Prime Minister,
other than on the occasion of a vote of no confidence, the President shall appoint as
Prime Minister –
(a) the member of the Assembly who is the leader of the largest political party,
or coalition of parties, represented in the Assembly; or
(b) if the leader of the largest party or coalition has been unable to command the
confidence of the Assembly, the member of the Assembly who is the leader
of the second largest political party, or coalition of parties represented in the
Assembly.
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(2) Where neither of the persons contemplated in clause (1)(a) or (b) has been able to
command or retain the confidence of the Assembly, the President shall propose to the
Assembly the name of a member who, in the President’s opinion, may be able to
command the confidence of the Assembly.
(3) On receiving a proposal from the President under clause (2), the Speaker shall
summon the Assembly and introduce the proposal from the President.
(4) Within seven days of the Speaker receiving a proposal from the President, the
Speaker shall call a vote in the Assembly to confirm the appointment of the person
proposed by the President.
(5) A vote contemplated in clause (4) passes if it is supported by at least fifty per cent of
the members of the Assembly.
(6) If the Assembly fails to confirm the appointment of the person proposed by the
President, the Assembly shall by a vote supported by a majority of members present
and voting nominate a member of the Assembly for appointment as the Prime
Minister.
(7) If, within sixty days of the President first proposing a person to be appointed Prime
Minister, no person has been confirmed, the Assembly shall stand dissolved and the
Electoral and Boundaries Commission shall conduct a fresh general election for the
Assembly.
Term of office
174. (1) A person whose appointment as Prime Minister has been confirmed by the National
Assembly shall assume the office by taking and subscribing the oath or affirmation
for the due performance of the functions of the office prescribed in the Third
Schedule, before the Speakers and members of Parliament.
(2) The term of office of the Prime Minister continues until –
(a) the Prime Minister dies, resigns or is dismissed from office; or
(b) the next person appointed Prime Minister following an election assumes
office.
Resignation of Prime Minister
175. (1) The Prime Minister may resign from office by delivering a written notice of
resignation to the President.
(2) The resignation of the Prime Minister takes effect –
(a) on the date and at the time specified in the notice, if any; or
(b) at noon on the day after it is delivered, in any other case.
Dismissal of Prime Minister
176. (1) The President may propose to the National Assembly the dismissal of a Prime
Minister.
(2) The proposal of the President under clause (1) passes if it is supported by the votes of
not less than fifty per cent of all the members of the Assembly.
(3) A member of the Assembly supported by not less than a third of the members may, at
any time during a sitting of the Assembly, propose a motion of no confidence in the
Prime Minister.
(4) If the Assembly, by resolution supported by the votes of at least fifty per cent of its
members, passes the motion of no confidence in the Prime Minister, the Prime
Minister ceases to hold office.
(5) The President shall not dismiss the Prime Minister, the two Deputy Prime Ministers,
the Ministers and the Deputy Ministers in any circumstances, other than those
contemplated in this Article.
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Ministers and Deputy Ministers
177. (1) The President shall appoint members of the Cabinet and Deputy Ministers nominated
by the Prime Minister from among the members of the Assembly, and subject to the
approval of the Senate.
(2) A person appointed as a Deputy Prime Minister, Minister or Deputy Minister –
(a) assumes office by taking and subscribing the oath or affirmation for the due
execution of the functions of the office prescribed in the Third Schedule,
before the Speaker and members of Parliament;
(b) may resign by delivering a written notice of resignation to the Prime
Minister and the President; and
(c) continues in office until –
(i) that person dies, resigns or is dismissed from office; or
(ii) the next person appointed to that office, following an election for
the Assembly assumes office.
(3) A resignation referred to in clause (2) takes effect –
(a) on the date and at the time specified in the notice, if any; or
(b) at noon on the day after it is delivered, in any other case.
(4) Whenever the Prime Minister, a Deputy Prime Minister or any other Minister is
charged with the responsibility of a Government Ministry, they shall exercise general
direction and control over that Ministry.
(5) If the Assembly, by a resolution supported by the votes of more than fifty per cent of
its members, passes a motion of no confidence in a member of the Cabinet other than
the Prime Minister, or a Deputy Minister, the President shall remove that member of
the Cabinet or Deputy Minister.
(6) The President shall dismiss the Cabinet and the Deputy Ministers on the
recommendation of the Prime Minister.
Secretary to the Cabinet
178. (1) There shall be a Secretary to the Cabinet.
(2) The Secretary to the Cabinet shall be appointed by the President on the
recommendation of the Prime Minister.
(3) The office of the Secretary to the Cabinet shall be a public office.
(4) The Secretary to the Cabinet shall –
(a) have charge of the Cabinet office;
(b) be responsible, subject to the directions of the Cabinet, for arranging the
business, and keeping the minutes of the Cabinet;
(c) convey the decisions of the Cabinet to the appropriate persons or authorities;
and
(d) have any other functions as directed by the Cabinet.
(5) The Secretary to the Cabinet –
(a) may be dismissed by the President on the recommendation of the Prime
Minister; or
(b) may resign from office by notice in writing to the President through the
Prime Minister, and the notice takes effect on the receipt of the letter of
resignation by the President.
(6) On the assumption to office of a new government, the person holding office as
Secretary to the Cabinet shall cease to hold that office.
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Decisions, responsibility and accountability of the Cabinet
179. (1) The Cabinet shall meet at least once a month.
(2) The quorum at a meeting of the Cabinet shall be one half of all the members of the
Cabinet.
(3) A decision by the Cabinet shall be in writing.
(4) Members of the Cabinet are accountable collectively, and individually, to Parliament
for –
(a) the exercise of their powers and the performance of their functions; and
(b) the administration and implementation of legislation assigned to them.
(5) A Minister shall attend before Parliament, or a committee of Parliament, when
required to do so, and shall answer any question concerning a matter assigned to that
Minister.
Assignment of functions
180. (1) The Prime Minister shall keep the President fully informed concerning the general
conduct of the Government and shall furnish the President with any information that
the President may request with respect to any matter relating to the Government.
(2) The Prime Minister shall assign or transfer responsibility for government functions
to –
(a) a Deputy Prime Minister; or
(b) a Minister and a Deputy Minister.
(5) When a matter arises or is likely to arise at a Cabinet meeting –
(a) relating to the operation of clause (2)(b); or
(b) relating to the conduct of the affairs of a Ministry or Department; or
(c) relating to the duties of a Minister,
and the responsible Cabinet Minister is unable to attend the meeting of the Cabinet,
the Prime Minister may invite the Deputy Minister to attend.
Principal Secretaries
181. (1) There is established the office of Principal Secretary which is an office in the public
service.
(2) Each Government ministry shall be under the supervision of a Principal Secretary.
(3) A Principal Secretary shall be nominated by the Prime Minister in consultation with
the Public Service Commission for appointment by the President.
(4) A Principal Secretary –
(a) may be dismissed by the President on the recommendation of the Prime
Minister; or
(b) may resign from office by notice in writing to the President, and the
resignation takes effect on receipt of the letter of resignation by the
President.
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CHAPTER THIRTEEN
JUDICIAL AND LEGAL SYSTEM
Principles and structure of judicial power
183. (1) Judicial power is derived from the people and shall be exercised by the courts and
other tribunals, in their name and in conformity with this Constitution and the laws,
for the common good of the people.
(2) Judicial power vests exclusively in the courts and tribunals established in accordance
with this Constitution.
(3) In applying the law the courts and tribunals shall be guided by the following
principles –
(a) justice shall be done to all, irrespective of their status;
(b) justice shall not be delayed;
(c) adequate compensation shall be awarded to victims of wrongs;
(d) reconciliation, mediation and arbitration between parties and the use of
traditional courts, where appropriate, shall be promoted;
(e) justice shall be administered without undue regard to technicalities; and
(f) the purpose and principles of this Constitution shall be protected and
promoted.
(4) In the performance of their functions the courts and all persons participating in the
administration of justice –
(a) shall strive to deliver the highest standard of service to the public;
(b) shall comply with the principles set out in Chapter Nine; and
(c) shall continue to educate themselves in current legal developments.
(5) The State shall provide reasonable resources and opportunities to members of the
Judiciary to enable them to deliver the highest standards of service to the public.
Hierarchy and administration courts
184. (1) The Judiciary consists of the judges of the superior courts of record, magistrates and
other judicial officers of the subordinate courts.
(2) The superior courts of record are the Supreme Court, the Court of Appeal and the
High Court.
(3) The subordinate courts are –
(a) the Magistrates’ Courts and the Kadhis’ Court;
(b) the Courts Martial and any other courts subordinate to the High Court
established by an Act of Parliament;
(c) traditional courts; and
(d) any local tribunals that may be established by an Act of Parliament.
(4) Parliament shall establish by legislation –
(a) a court with jurisdiction to hear and determine disputes relating to
employment that may arise among employers and employees; and
(b) a court, or a division of the High Court, with jurisdiction to hear and
determine disputes relating to the environment and the occupation and use
of, and the title to, land.
(5) There is established the office of the Chief Registrar of the Judiciary and such other
offices of Registrars as may be created by the Judicial Service Commission.
(6) The Chief Registrar of the Judiciary shall be the chief administrator and accounting
officer of the Judiciary.
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Independence of the Judiciary
185. (1) In the exercise of judicial power, the Judiciary shall be subject only to this
Constitution and the law and shall not be subject to the control or direction of any
other person or authority.
(2) The office of a judge of a superior court of record shall not be abolished while there
is a substantive holder of the office.
(3) The administrative expenses of the Judiciary, including the remuneration and benefits
payable to, or in respect of, members of the Judiciary, shall be a charge on the
Consolidated Fund.
(4) A member of the Judiciary is liable in an action or suit in respect of anything done in
good faith in the lawful performance of a judicial function.
(5) The remuneration and benefits payable to, or in respect of members of the Judiciary
shall not be varied to their disadvantage.
Supreme Court
186. (1) The Supreme Court shall consist of –
(a) the Chief Justice, who shall be the president of the court;
(b) the Deputy Chief Justice, who shall be the vice-president of the court; and
(c) not less than five and not more than seven other judges.
(2) The Supreme Court shall be properly constituted for the purposes of its proceedings
if it is composed of five judges.
(3) The Supreme Court shall sit in Nairobi.
(4) There is established the office of the Chief Justice who shall be the head of the
Judiciary.
(5) Subject to Article 195(1), the Chief Justice shall serve for a period of ten years or
until he or she attains the age of seventy years, whichever is earlier.
(6) If the Chief Justice has not attained the age of seventy years at the expiry of the
period of ten years referred to in clause (2) he or she may –
(a) retire, if he or she has attained the age of sixty years;
(b) continue in office as a judge of the Supreme Court, notwithstanding that
there may already be the maximum permitted number of supreme court
judges holding office; or
(c) resign from the bench.
(7) There is established the office of the Deputy Chief Justice.
Jurisdiction of the Supreme Court
187. (1) The Supreme Court shall have –
(a) exclusive original jurisdiction –
(i) in respect of presidential election petitions; and
(ii) in disputes arising from the process of the impeachment of the
President; and
(b) appellate jurisdiction to hear appeals from the Court of Appeal or from any
other court or tribunal as prescribed by an Act of Parliament.
(2) Appeals shall lie from the Court of Appeal to the Supreme Court -
(a) as of right in any case involving the interpretation or application of this
Constitution;
(b) in any other case in which the Court of Appeal or the Supreme Court
certifies that a matter of general public importance is involve.
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(3) The Supreme Court shall not be bound by its previous decisions if it is in the interests
of justice and of the development of the law and jurisprudence not to be so bound.
(4) Despite the provisions of Article 186(2) a decision made in accordance with clause
(3) may be made only by a sitting of the Court in which all of the judges of the
Supreme Court participate.
(5) All other courts shall be bound by the decisions of the Supreme Court.
Court of Appeal
188. The Court of Appeal shall –
(a) consist of the President of the Court of Appeal and such number of judges;
and
(b) be organized and administered,
as may be prescribed by an Act of Parliament.
Jurisdiction of the Court of Appeal
189. The Court of Appeal has jurisdiction to hear appeals from the High Court and any other court
or tribunal prescribed by an Act of Parliament.
High Court
190. The High Court shall –
(a) consist of the Principal Judge and such number of judges; and
(b) be organized and administered,
as may be prescribed by an Act of Parliament.
Jurisdiction of the High Court
191. Subject to the provisions of Article 187(1)(a), the High Court shall have unlimited original
jurisdiction in –
(a) criminal and civil cases;
(b) all matters relating to the interpretation and enforcement of the provisions of
this Constitution; and
(c) any other jurisdiction, appellate or original, conferred on it by or under an
Act of Parliament.
Supervisory jurisdiction of the High Court
192 . (1) The High Court shall have supervisory jurisdiction over the subordinate courts and
over any person, body or authority which exercises a judicial or quasi-judicial
function, but not over a superior court of record.
(2) For the purposes of clause (1), the High Court may call for the record of any
proceedings before any subordinate court or person, body or authority as is
mentioned in clause (1) and may make any orders and give any directions it considers
appropriate to ensure the fair administration of justice.
Appointment of judges
193. Any vacancy in the office of the Chief Justice, the Deputy Chief Justice or another judge of a
superior court of record shall be filled by a person appointed by the President on the
recommendation of the Judicial Service Commission and with the approval by the National
Assembly.
Qualifications for appointment of judges
194. (1) The Chief Justice and the judges of the Supreme Court shall be appointed from
persons who possess the following qualifications –
(a) at least fifteen years experience in Kenya or in another Commonwealth
common law jurisdiction –
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(i) as a Judge of the Court of Appeal or the High Court or a court of
corresponding standing; or
(ii) in practice as an advocate; or
(b) intellectual ability as demonstrated by academic qualifications in law; and
(c) high moral character and integrity.
(2) The judges of the Court of Appeal shall be appointed from persons who possess the
following qualifications –
(a) at least ten years experience in Kenya or in another Commonwealth
common law jurisdiction –
(i) as a Judge of the High Court or a court of corresponding standing;
or
(ii) in practice as an advocate; or
(b) intellectual ability as demonstrated by academic qualifications in law; and
(c) high moral character and integrity.
(3) The judges of the High Court shall be appointed from persons who possess the
following qualifications –
(a) at least ten years experience in Kenya or in another Commonwealth
common law jurisdiction –
(i) as a professionally qualified magistrate; or
(ii) in practice as an advocate; or
(b) intellectual ability as demonstrated by academic qualifications in laws; and
(c) high moral character and integrity.
Tenure of office of judges
195. (1) A judge shall retire from office on attaining the age of seventy years, but may retire
at any time after attaining the age of sixty years.
(2) On attaining retirement age, if there are proceedings that were commenced before a
judge of a superior court of record prior to attaining the age of retirement, he or she
shall continue in office for a period of six months in order only to enable him or her
to deliver a judgment, or to perform any other function in relation to those
proceedings.
Removal from office
196. (1) A judge of a superior court of record may be removed from office on the grounds
of –
(a) inability to perform the functions of office arising from infirmity of body or
mind;
(b) a breach of a code of conduct prescribed for judges of the superior courts of
record by an Act of Parliament;
(c) bankruptcy;
(d) incompetence; or
(e) misconduct or misbehaviour whether in the performance of the judge’s
duties or otherwise.
(2) A person desiring the removal of a judge of a superior court of record may present a
petition to the Judicial Service Commission, which, despite Article 292(2)(b), shall
be in writing, setting out the alleged facts constituting the grounds for the judge’s
removal.
(3) The Judicial Service Commission shall consider the petition and, if it is satisfied that
it discloses the existence of a ground under clause (1), it shall send the petition to the
President.
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(4) Within fourteen days after receiving the petition, the President shall suspend the
judge from office pending action by the President in accordance with clause (5), and
shall, acting in accordance with the advice of the Judicial Service Commission –
(a) in the case of the Chief Justice, appoint a tribunal consisting of –
(i) the Speaker of the Senate as chairperson;
(ii) three judges from states which have a common law jurisdiction;
and
(iii) three other persons with experience in public affairs; and
(b) in the case of a judge other than a the Chief Justice, appoint a tribunal
consisting of –
(i) four members from among persons who hold or have held office as
a judge of a superior court of record, or who are qualified to be
appointed as such, but in either case have not been, within the
preceding three years, members of the Judicial Service
Commission; and
(ii) three other persons with experience in public affairs.
(5) The tribunal shall inquire into the matter and report on the facts and make
recommendations to the President, who shall act in accordance with the
recommendations of the tribunal.
(6) A judge who is suspended from office under clause (4) shall retain one half of his or
her remuneration and benefits until such time as he or she is removed from office.
(7) A tribunal appointed under clause (4)(b), shall elect a chairperson from among its
members, and tribunals appointed under clause (4)(a) and (b) shall in all other
respects be responsible for the regulation of their proceedings.
Subordinate courts
197. (1) Parliament may, by an Act of Parliament –
(a) establish courts martial and other courts subordinate to the High Court; and
(b) confer on them jurisdiction and functions.
(2) A magistrate or Kadhi shall not be removed from office, except after determination
by the Judicial Service Commission on grounds as prescribed by an Act of
Parliament.
Kadhis’ Court
198. (1) There is established the Kadhis’ Court.
(2) The Kadhis’ Court shall –
(a) consist of the Chief Kadhi and such number of other kadhis, all of whom
profess the Islamic faith; and
(b) be organized and administered,
as may be prescribed by an Act of Parliament.
Jurisdiction of the Kadhis’ Court
199. The Kadhis’ Court shall be a subordinate court with jurisdiction to determine questions of
Islamic law relating to personal status, marriage, divorce and matters consequential to divorce,
inheritance and succession in proceedings in which all the parties profess the Islamic faith.
Judicial Service Commission
200. (1) There is established the Judicial Service Commission consisting of –
(a) one Supreme Court Judge elected by the judges of the Supreme Court, who
shall be the Chairperson of the Commission;
(b) one Court of Appeal judge elected by the judges of the Court of Appeal;
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(c) one High Court judge elected by the judges of the High Court;
(d) the Attorney-General;
(e) the Chief Kadhi;
(f) two advocates each of at least fifteen years’ standing nominated by the Law
Society of Kenya;
(g) two deans of law schools in the faculties of law nominated by the
universities; and
(h) one person nominated by the Public Service Commission.
(2) The Chief Registrar of the Judiciary shall be the Secretary to the Commission.
(3) Members of the Commission, apart from those appointed under clause (1)(d), (e) and
(f), shall hold office, provided that they remain qualified, for a term of five years and
shall be eligible for re-appointment for a further term of five years.
Functions of the Judicial Service Commission
201. (1) The functions of the Judicial Service Commission shall be –
(a) to ensure and enhance the independence and judicial accountability of the
judiciary and the efficient, effective and transparent administration of
justice;
(b) to recommend to the President persons for appointment as judges;
(c) to review and make recommendations on the conditions of service of judges,
magistrates and other judicial officers, other than their salaries and
remuneration;
(d) to advise the President on the membership of the tribunal referred to in
Article 196(4);
(e) to appoint, discipline and remove registrars, magistrates and other judicial
officers, including paralegal staff, in such manner as may be specified by an
Act of Parliament;
(f) to review and establish tribunals to investigate complaints against judges;
(g) to prepare and implement programmes for the continuing education and
training of judges, magistrates and other judicial officers, and paralegal
staff; and
(h) to advise the Government on improving the efficiency of the administration
of justice, and on access to justice, including legal aid.
(2) In this Article “judge” means a judge of a superior court of record.
Attorney-General
202. (1) There is established the office of the Attorney-General, which shall be an office in
the public service.
(2) The Attorney-General shall be appointed by the President on the recommendation of
the Public Service Commission and with the approval of the National Assembly.
(3) The qualifications for appointment as Attorney-General are the same as for
appointment to the office of Chief Justice.
(4) The Attorney-General shall be the principal legal adviser to the Government.
(5) The Attorney-General shall be responsible for –
(a) drawing, perusing and recommending approval (or otherwise) of such
agreements, contracts, treaties, conventions and documents by whatever
name called, to which the Government is a party or in respect of which the
Government has an interest, as specified in legislation;
(b) representing the Government in court or any other legal proceedings to
which the Government is a party, other than criminal proceedings; and
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(c) drafting legislation, including subsidiary legislation, for the Government.
(6) The Attorney-General shall have authority, with the leave of the court, to appear as a
friend of the court in any civil proceedings to which the Government is not a party.
(7) The Attorney-General shall promote, protect and uphold the rule of law and defend
the public interest.
(8) The powers of the Attorney-General may be exercised in person or by subordinate
officers acting in accordance with general or special instructions.
(9) The Attorney-General shall not be under the direction or control of any person or
authority in the exercise of any of his or her functions.
(10) The Attorney-General shall hold office for a term of ten years and shall not be
eligible for re-appointment.
Director of Public Prosecutions
203. (1) There is established the office of the Director of Public Prosecutions which shall be
an office in the public service.
(2) The Director of Public Prosecutions shall be appointed by the President on the
recommendation of the Public Service Commission and with the approval of the
National Assembly.
(3) The qualifications for appointment as Director of Public Prosecutions are the same as
for the appointment as a judge of the High Court.
(4) The Director of Public Prosecutions shall have power to direct the Inspector-General
of the Kenya Police Service to investigate any information or allegations of criminal
conduct.
(5) The Director of Public Prosecutions shall exercise State powers of prosecution and
may –
(a) institute and undertake criminal proceedings against any person before any
court (other than a court martial) in respect of any offence alleged to have
been committed;
(b) take over and continue any criminal proceedings commenced in any court
(other than a court martial) that have been instituted or undertaken by
another person or authority, with the permission of that person or authority;
and
(c) subject to clause (8), discontinue at any stage before judgment is delivered
any criminal proceedings instituted by the Director of Public Prosecutions or
taken over by the Director of Public Prosecutions under paragraph (b).
(6) Where a discontinuance referred to in clause (5)(c) takes place after the defendant has
completed the delivery of his or her defence, the defendant shall be acquitted.
(7) Parliament may by legislation confer powers of prosecution on authorities other than
the Director of Public Prosecutions.
(8) The Director of Public Prosecutions may not discontinue a prosecution without the
permission of the court.
(9) The powers of the Director of Public Prosecutions may be exercised in person or by
subordinate officers acting in accordance with general or special instructions.
(10) The Director of Public Prosecutions shall not require the consent of any person or
authority for the commencement of criminal proceedings and in the exercise of his or
her powers or functions and shall not be under the direction or control of any person
or authority.
(11) In exercising the powers conferred by this Article, the Director of Public
Prosecutions shall have regard to the public interest, the interests of the
administration of justice and the need to prevent and avoid abuse of the legal process.
(12) The Director of Public Prosecutions shall hold office for a term of ten years and shall
not be eligible for re-appointment.
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Public Defender
204. (1) There is established the office of the Public Defender, which shall be an office in the
public service.
(2) The Public Defender shall be appointed by the President on the recommendation of
the Public Service Commission and with the approval of the Assembly.
(3) The qualifications for appointment as Public Defender are the same as for the
appointment as a judge of the High Court.
(4) Subject to clause (5) the Public Defender shall provide legal advice and
representation to persons who are unable to afford legal services.
(5) Parliament shall by an Act of Parliament make provision for –
(a) the effective, efficient and transparent management and administration of
the Public Defender’s office;
(b) the criteria for the granting of legal aid; and
(c) publishing information as to the availability of legal aid.
(6) The powers of the Public Defender may be exercised in person or by subordinate
officers acting in accordance with general or special instructions.
(7) The Public Defender shall hold office for a term of ten years and shall not be eligible
for re-appointment.
Removal from office
205. (1) The Attorney-General, the Director of Public Prosecutions and the Public Defender
may be removed from office only on the grounds of –
(a) inability to perform the functions of office arising from infirmity of body or
mind;
(b) non-compliance with the principles set out in Chapter Nine;
(c) bankruptcy;
(d) incompetence; or
(e) misconduct or misbehaviour whether in the performance of the officeholder’s
duties or otherwise.
(2) A person desiring the removal of the Attorney-General, the Director of Public
Prosecutions or the Public Defender may present a petition to the Public Service
Commission which, despite Article 292(2)(b) shall be in writing, setting out the
alleged facts constituting the grounds for the removal of the office-holder in question.
(3) The Public Service Commission shall consider the petition and, if it is satisfied that it
discloses the existence of a ground under clause (1), it shall send the petition to the
President.
(4) On receipt and examination of the petition the President shall within 14 days suspend
the office holder in question from office pending action by the President in
accordance with clause (5) and, acting in accordance with the advice of the Public
Service Commission, shall –
(a) in the case of the Attorney-General, appoint a tribunal consisting of –
(i) the Speaker of the Senate as chairperson;
(ii) three judges from states which have a common law jurisdiction;
and
(iii) three other persons with experience in public affairs; and
(b) in the case of the Director of Public Prosecutions or the Public Defender,
appoint a tribunal consisting of –
(i) four members from among persons who hold or have held office as
a judge of a superior court of record, or who are qualified to be
appointed as such;
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(ii) one advocate of at least fifteen years’ standing nominated by the
Law Society of Kenya; and
(iii) two other persons with experience in public affairs.
(5) The tribunal shall inquire into the matter and report on the facts and make
recommendations to the President, who shall act in accordance with the
recommendations of the tribunal.
(6) An Attorney-General, Director of Public Prosecutions or Public Defender who is
suspended from office under clause (4) shall retain the office holder’s remuneration
and benefits of office until such time as the office holder is removed from office.
(7) A tribunal appointed under clause (4)(b) shall elect a chairperson from among its
members and tribunals appointed under clause (4)(a) and (b) shall in all other
respects be responsible for the regulation of their proceedings.
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CHAPTER FOURTEEN
DEVOLVED GOVERNMENT
Part I – Structure and principles of devolved government
Objects of devolution of government
206. (1) The objects of devolution of government are –
(a) to ensure the democratic and accountable exercise of sovereign power;
(b) to foster national unity by recognising diversity;
(c) to give powers of self-governance to the people at all levels and enhance the
participation of people in the exercise of the powers of the state;
(d) to recognize the right of local communities to manage their own local
affairs, and to form networks and associations to assist in that management
and to further their development;
(e) to protect and promote the interests and rights of minorities and
marginalized groups at all levels;
(f) to promote social and economic development and the provision of
proximate, easily-accessed services throughout Kenya;
(g) to ensure equitable sharing of national and local resources throughout
Kenya, with special provisions for less developed areas; and
(h) to facilitate the decentralisation of State organs and functions from the
capital territory.
(2) All persons and bodies exercising and performing powers and functions in
accordance with this Chapter shall take account of the objects set out in this Article.
Principles of devolved government
207. (1) The district is the principal level of devolution.
(2) The principal role of a regional government is to co-ordinate the implementation,
within the districts forming the region, of programmes and projects that extend across
two or more districts of the region.
(3) The principal role of the Senate is to provide an institution through which the
devolved levels of government share and participate in the formulation and
enactment of national legislation.
(4) Parliament is responsible for the enactment of framework legislation applicable to the
devolved levels of government.
Co-operation between government at the different levels
208. (1) Government at every level shall –
(a) exercise and perform its powers and functions in a manner that does not
encroach on the geographical, functional or institutional integrity of
government at any other level and shall respect the constitutional status,
institutions and rights of government at all levels;
(b) assist, support, and consult with other levels and shall, as appropriate,
implement the laws of other levels; and
(c) maintain liaison with government at each other level for the purpose of
exchange of information, co-ordination of policies and administration and
enhancement of capacity.
(2) Governments at different levels, or different governments at the same level, shall, to
the extent necessary in any particular circumstances, co-operate in the performance
of functions and, for that purpose, may set up joint committees and joint authorities.
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(3) Governments involved in an inter-governmental dispute shall make every reasonable
effort to settle the dispute by means of procedures provided by Act of Parliament for
that purpose, and shall exhaust all other remedies before they approach a court to
resolve the dispute.
Assignment of functions
209. (1) Except as otherwise provided by this Constitution or by Act of Parliament, the
functions and powers of the various levels of government are as set out in the Fourth
Schedule.
(2) Every district government shall decentralize the provision of services and other
functions of government by providing, for their devolution to locational government
to the extent that it is efficient and practicable to do so.
(3) When powers and functions are re-assigned from one level of government to another
level of government, arrangements shall be put in place to ensure that the funds
necessary for the exercise and performance of those powers and functions are
transferred accordingly.
(4) A function that is assigned to more than one level of government is a function within
the concurrent jurisdiction of each of those levels of government.
Conflict of laws
210 (1) This Article applies to conflicts between legislation in relation to matters falling
within the concurrent jurisdiction of the various levels of government.
(2) National legislation prevails over regional and district legislation if –
(a) the national legislation applies uniformly throughout Kenya and any of the
conditions specified in clause (3) is satisfied; or
(b) the national legislation is aimed at preventing unreasonable action by a
region or district that –
(i) is prejudicial to the economic health or security interests of another
region or district or of Kenya as a whole; or
(ii) impedes the implementation of national economic policy.
(3) The conditions mentioned in clause (2)(a) are –
(a) the national legislation deals with a matter that cannot be regulated
effectively by legislation enacted by the regions or districts individually;
(b) the national legislation deals with a matter that, to be dealt with effectively,
requires uniformity across the nation, and the national legislation provides
that uniformity by establishing –
(i) norms and standards;
(ii) frameworks; or
(iii) national policies; and
(c) the national legislation is necessary for –
(i) the maintenance of national security;
(ii) the maintenance of economic unity;
(iii) the protection of the common markets in respect of the mobility of
goods, services capital and labour;
(iv) the promotion of economic activities across regional or district
boundaries;
(v) the promotion of equal opportunity or equal access to government
services; or
(vi) the protection of the environment.
(4) Regional or district legislation prevails over national legislation if the requirements
of clause (2) are not satisfied.
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(5) Regional legislation prevails over district legislation.
(6) A decision by a court that a provision of legislation of one level of government
prevails over a provision of legislation of another level of government does not
invalidate that other provision, but that other provision becomes inoperative to the
extent of the inconsistency.
(7) When considering an apparent conflict between legislation of different levels of
government, a court shall prefer any reasonable interpretation of the legislation that
avoids a conflict to any alternative interpretation that results in conflict.
(8) A subordinate court before which an apparent conflict between legislation of
different levels of government arises shall decide the issue unless –
(a) because of the importance or complexity of the matter, the court, on its own
motion, refers the matter to the High Court; or
(b) any party to the proceedings requests that the matter be so referred.
Part II – Regions
Regional governments
211. (1) There is established for each region, a regional government, consisting of a regional
legislative assembly and a regional executive.
(2) The Nairobi region shall be managed as a metropolitan capital city, as prescribed by
Act of Parliament.
Regional legislative assemblies
212. (1) A regional legislative assembly –
(a) consists of four delegates (not being members of any district council)
elected from each district within the region by the council of that district;
(b) is constituted for a term of five years; and
(c) has the power to pass any laws that are reasonably necessary for, or
incidental to, the effective exercise of the powers, and the performance of
the functions, that are assigned to the region.
(2) In electing delegates to the regional legislative assembly, a district council shall take
into consideration the various diversities represented in the districts.
(3) A member of a regional legislative assembly shall have a right to attend meetings of
the district council by which that member was elected and take part in its
deliberations but may not vote on any matter.
Regional executive committee
213. (1) The executive authority of a regional government is exercised by a regional executive
committee, consisting of –
(a) a regional chief executive and a deputy regional chief executive, to be
known –
(i) except in the case of the Nairobi region, as the premier and the
deputy premier; and
(ii) in the case of the Nairobi region, as the mayor and the deputy
mayor,
and elected in accordance with Article 214 or 215, as the case requires; and
(b) other members appointed by the regional chief executive with the approval
of the regional legislative assembly.
(2) The number of members appointed under clause (1)(b) shall not exceed one-third of
the number of members of the regional legislative assembly.
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Election of regional premier and deputy regional premier
214. (1) A regional premier and a deputy regional premier shall each be elected by an
electoral college consisting of all the elected members of district councils within the
region.
(2) A member of the electoral college constituted under clause (1) is not eligible to be
elected regional premier or deputy regional premier.
(3) At an election under clause (1) –
(a) the candidate who obtains a two-thirds majority of the votes cast shall be
declared elected; and
(b) if no candidate obtains such a majority –
(i) a second ballot shall be held, in which the only candidates are those
who obtained the highest and second-highest number of votes in
the first ballot; and
(ii) the candidate who obtains the greater number of votes in the
second ballot shall be declared elected.
Election of mayor and deputy mayor of Nairobi
215. The mayor and deputy mayor of Nairobi shall each be elected, in the manner prescribed by
Act of Parliament, by a simple majority of registered voters who meet the requirements
relating to residence within the region prescribed by Act of Parliament.
Functions of regional executive committees
216. (1) The members of a regional executive committee, under the chairmanship of the
regional chief executive, are responsible for the exercise of executive powers in
relation to functions and powers assigned to the region.
(2) Members of the regional executive committee are accountable collectively and
individually to the regional legislative assembly for the exercise of their powers and
the performance of their functions.
Part III – Districts
District governments
217. There is established for each district a district government, consisting of a district council and
a district executive.
Legislative authority of district councils
218. (1) The legislative authority of a district is vested in its district council.
(2) A district council may pass any laws that are reasonably necessary for, or incidental
to, the effective exercise of the powers, and the performance of the functions, that are
assigned to the district.
(3) A district council has power to maintain oversight over the district executive
committee and any other executive organs established by laws of the district council.
Election of district councillors
219. (1) A district council consists of –
(a) one member elected for each of such number of wards, with such
boundaries, as are prescribed by Act of Parliament, passed after taking
account of the recommendations of the Electoral and Boundaries
Commission;
(b) such number of special seat members, all of whom are women, as are
required to ensure that at least a one-third membership of the council
comprises women, elected after members have been declared elected under
paragraph (a); and
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(c) such number of members of marginalized groups, including persons with
disabilities, older persons and youth, provided that at least two shall be
persons with disabilities, as are prescribed by an Act of Parliament.
(2) Nothing in this Article prevents a woman who stood unsuccessfully for election
under paragraph (a) of clause (1) from contesting a special seat under paragraph (b)
of that clause.
(3) A district council is elected for a term of five years.
District executive committee
220. (1) The executive authority of a district is exercised by a district executive committee,
consisting of –
(a) a district governor and a deputy district governor; and
(b) subject to clause (2), such other members as are appointed by the district
governor with the approval of the district council.
(2) The number of members appointed under clause (1)(b) shall not exceed either –
(a) one-third of the number of members of the district council; or
(b) ten persons.
Election of district governor and deputy district governor
221. (1) The district governor and deputy district governor shall each be elected, in an
election which they contest as a team, by registered voters who meet the
requirements relating to residence within the district prescribed by Act of Parliament.
(2) The district governor and deputy district governor each hold office for a term of five
years, and each of them is eligible, if otherwise qualified, for re-election for one
further term.
Functions of district executive committee
222. (1) A district executive committee shall –
(a) implement laws of the district council;
(b) implement, within the district, national and regional legislation, to the extent
that that legislation so requires;
(c) coordinate the functions of the district administration and its departments;
and
(d) coordinate the functions of locations and communities within the district.
(2) Without limiting any power of the district council, a district executive committee
may prepare and initiate proposed laws for enactment by the council.
(3) A district executive committee may formulate plans and policies for the management
and exploitation of the district’s resources and development and management of the
district’s infrastructure and institutions.
(4) The district executive committee has such other powers and functions as may be
conferred on it by this Constitution or by national or regional legislation.
(5) Members of a district executive committee are accountable collectively and
individually to the district council for the exercise of their powers and the
performance of their functions.
(6) A district executive committee shall –
(a) act in accordance with this Constitution; and
(b) provide the district council with full and regular reports concerning matters
under the control of the district executive committee.
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Part IV – Locations
Locational governments
223. (1) There is established for each location locational government, consisting of a
locational council and location administrator.
(2) A locational administrator is accountable to the locational council in the exercise of
the powers and the performance of functions of the office.
Locational councils
224. (1) A locational council consists of representatives elected by registered voters who meet
the requirements for residence in the location prescribed by Act of Parliament.
(2) An election for the purposes of clause (1) shall be conducted in such manner as is
prescribed by Act of Parliament, being a manner that ensures that an equal number of
men and women are elected.
Location administrator
225. (1) The location administrator is the executive authority of the location and is to be
elected, in the manner prescribed by district legislation, by voters resident in the
location.
(2) The term of office of a location administrator is five years and shall be eligible for reappointment
for a further and final term of five years.
Part V – General
Terms of office
226. Subject to specific provision made in this Chapter, a person holds an office established by this
Chapter for a term of five years and is eligible, if otherwise qualified, for re-election or reappointment
for one further term.
Power to summon witnesses
227. A regional legislative assembly or a district council has power to –
(a) summon any person to appear before it or any of its committees for the
purpose of giving evidence or providing information; and
(b) for the purposes of paragraph (a), has the powers of the High Court in –
(i) enforcing the attendance of witnesses and examining them on oath,
affirmation or otherwise;
(ii) compelling the production of documents; and
(iii) issuing a commission or request to examine witnesses abroad.
Public access and participation, and powers, privileges and immunities
228. Articles 144 and 145 apply to the regional legislative assemblies and the district and locational
councils in the same manner as they apply to the national legislature.
Leadership and integrity
229. Members of an assembly, council or committee constituted under this Chapter shall act in
accordance with the principles set out in Chapter Nine.
Provision to be made by Act of Parliament
230. (1) Parliament shall by legislation make comprehensive provision for all matters
necessary or convenient to give effect to this Chapter, including, in particular,
provision for –
(a) the phased transfer, over a period of not more than five years from the
effective date, from the Government to the devolved governments of the
powers and functions assigned to them under Article 209;
(b) the governance of Nairobi, as the national capital, and of other urban areas;
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(c) the delegation of powers by one level of government to another, including
the delegation from the Government to regional and district governments of
legislative powers with respect to matters specified in the following
paragraphs of this Article as the subject-matter of an Act of Parliament, and
the conditions for the transfer and recall of the powers delegated;
(d) the manner of election or appointment of persons to, and their removal from,
offices in devolved governments, including the qualifications of voters and
candidates;
(e) the procedure of assemblies, councils and executive committees, including
the chairing and frequency of meetings, quorums and voting; and
(f) the suspension of assemblies, councils and executive committees.
(2) An Act passed for the purposes of clause (1), shall make provisions for the matters
provided for in Part VI that is at least as -
(a) supportive of the principles of devolution; and
(b) comprehensive in content,
as the provisions of that Part.
Part VI – Interim provisions
Qualification for election or appointment to devolved government bodies
231. Until relevant provision is made by Act of Parliament for the purposes of Article 230, a person
is eligible to be a member of an assembly, council or executive committee established by this
Chapter if that person –
(a) is qualified for membership of the National Assembly;
(b) has been resident in the region, district or location concerned throughout the
period of twelve months immediately before the date of the election or
appointment.
Procedures and internal organization of devolved government bodies
232. (1) Until relevant provision is made by Act of Parliament for the purposes of Article 230,
each assembly, council or executive committee established by this Chapter may, by
resolution, regulate its own procedure and internal organization.
(2) The power conferred by sub-section (1) includes the power to make provision with
respect to –
(a) the appointment or election, and removal, of persons as chairpersons and
deputy chairpersons;
(b) the convening, frequency and chairing of meetings; and
(c) quorums and voting at meetings.
Election of mayor and deputy mayor of Nairobi
233. Until relevant provision is made by Act of Parliament for the purposes of Article 215 –
(a) the manner of voting under that Article shall be the same as at a by-election
for the National Assembly; and
(b) the residential requirement for the purposes of that Article is that a person
has been resident in the region throughout the period of twelve months
immediately before the date of the election.
Election of district councillors
234. Until relevant provision is made by Act of Parliament for the purposes of Article 219(1) –
(a) the wards of each district are the wards existing immediately before the
effective date;
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(b) the number of members representing marginalized groups shall be the
number that is as nearly as practicable equal to twenty per cent the number
of members referred to in Article 219(1)(a); and
(c) the manner of conducting the election of members of a district council shall
be as determined in the circumstances by the Electoral and Boundaries
Commission.
Election of locational councils and locational administrators
235. (1) Until relevant provision is made by Act of Parliament for the purposes of Article
224(2), the manner of conducting the election of members of a locational council so
as to ensure that an equal number of men and women are elected shall be as
determined in the circumstances by the Electoral and Boundaries Commission.
(2) Until relevant provision is made by district legislation for the purposes of Article
225(1), the manner of conducting the election of members of a locational council
shall be as determined in the circumstances by the Electoral and Boundaries
Commission.
.
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CHAPTER FIFTEEN
PUBLIC FINANCE
Part I – Public Finance and Revenue Management
Principles and objects of public finance and revenue management
236. The primary object of the public finance management system of the Republic is to ensure –
(a) efficient and effective generation of revenue;
(b) adherence to the principles of transparency and accountability and
observance of law, including appropriate controls and oversight over
borrowing and expenditure;
(c) equitable raising of revenue, and the sharing of national and local resources
and revenue throughout the Republic, taking into account the special needs
of marginalized communities;
(d) the application of the principles of universality, of equality of tax treatment
and of taxation according to economic capacity;
(e) that the benefits and burdens of public borrowing and spending are shared
equitably between present and future generations;
(f) that the budgets and budgetary processes promote transparency,
accountability and the effective financial management of the economy, debt
and public sector; and
(g) that public accounts are audited and reported on regularly.
Part II – Taxation powers and revenue sharing.
Imposition of tax
237. (1) No person or authority may –
(a) impose a tax, fee or charge on behalf of the State, except under the authority
of legislation; or
(b) waive or vary any tax, fee or charge imposed by law except as expressly
provided by legislation.
(2) Legislation that provides for any waiver of any tax, charge or fee shall provide that a
record of such waivers and the reason for them is kept and reported to the Auditor-
General.
Taxation
238. (1) The taxation and other revenue-raising powers of the Government and devolved
governments are set out in the Seventh Schedule.
(2) The taxation and other revenue-raising powers of a devolved government shall not be
exercised in a way that materially and unreasonably prejudices national economic
policies, economic activities across regional, district or locational boundaries or the
national mobility of goods, services, capital or labour.
(3) When two or more governments have taxation or other revenue-raising powers and
functions with regard to the same subject-matter, an appropriate division of those
powers and functions shall be made by Act of Parliament.
(4) Nothing in this Article precludes the sharing of revenue raised under this Article
between governments that have taxation or other revenue-raising powers and
functions with regard to the same subject-matter.
(5) An Act of Parliament referred to in clause (3) may be enacted only after the
Commission on Revenue Allocation, the Minister responsible for devolved
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government and the Controller of Budget have been consulted, and their
recommendations have been tabled in Parliament.
Devolved governments’ shares of national funds
239. (1) The Government shall promote financial equalization among all levels of
government.
(2) Each devolved government –
(a) is entitled to an equitable share of revenue raised nationally; and
(b) may receive equalization grants or other allocations from Government
revenue, either conditionally or unconditionally.
(3) Additional revenue raised by a devolved government may not be deducted from its
share of revenue raised nationally, or from other allocations made to it out of
Government revenue.
(4) There is no obligation on the Government to compensate a devolved government that
does not raise revenue commensurate with its fiscal capacity and tax base.
(5) A devolved government’s share of revenue raised nationally shall be transferred to
that government promptly and without deduction, except when the transfer has been
stopped under Article 255(2).
Legislation
240. (1) Subject to Article 238(1), an Act of Parliament shall regulate the taxation and other
revenue raising powers of devolved governments and the sharing of revenue and
making of grants to devolved governments.
(3) An Act of Parliament referred to in clause (1), may be enacted only after the
Commission on Revenue Allocation, the Minister responsible for the devolved
governments and the Controller of Budget have been consulted, and their
recommendations have been tabled in Parliament.
(4) An Act of Parliament referred to in clause (1), shall take into account -
(a) the national interest;
(b) any provision that must be made in respect of the national debt and other
national obligations;
(c) the needs and interests of the Government;
(d) the need to ensure that the devolved governments are able to perform the
functions allocated to them;
(e) the fiscal capacity and efficiency of the devolved governments;
(f) developmental and other needs of devolved governments;
(g) economic disparities within and among the devolved governments,
including the needs of marginalized areas;
(h) obligations of the provinces and municipalities in terms of national
legislation;
(i) the desirability of stable and predictable allocations of revenue shares; and
(j) emergencies or other temporary needs.
Part III – Funds for holding Public Money
Consolidated Fund
241. (1) There is established a fund to be known as the Consolidated Fund.
(2) Subject to clause (3), all money raised or received for the purposes of, on behalf of,
or in trust for, the Government shall be paid into the Consolidated Fund.
(3) The money referred to in clause (2) does not include any money –
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(a) that is payable under an Act of Parliament into some other public fund of
the Government established for a specific purpose; or
(b) that may, under an Act of Parliament, be retained by the State organ, at
national or devolved level, that received it for the purpose of defraying the
expenses of that State organ.
Withdrawals from Consolidated Fund
242. (1) Money shall not be withdrawn from the Consolidated Fund except –
(a) to meet expenditure charged on the Fund by this Constitution or an Act of
Parliament; or
(b) when the issue of that money has been authorized by an Appropriation Act
or a Supplementary Appropriation Act.
(2) Money shall not be withdrawn from any public fund of the Government other than
the Consolidated Fund, unless the issue of that money has been authorised by an Act
of Parliament.
(3) Money shall not be withdrawn from the Consolidated Fund or any other public fund
of the Government unless the Controller of Budget has approved the withdrawal in
accordance with Article 256(4).
Revenue Fund for devolved governments
243. (1) There shall be established a Revenue Fund for each devolved government, into which
shall be paid all money received by the devolved government, except money
reasonably excluded by an Act of Parliament.
(2) Money may be withdrawn from the Revenue Fund of a devolved government only –
(a) by an appropriation by legislation of the devolved government; or
(b) as a direct charge against the Revenue Fund that is provided for by an Act of
Parliament or by legislation of the devolved government.
Contingency Fund
244. There is established a fund, to be known as the Contingency Fund, the operation of which
shall be in accordance with an Act of Parliament.
Part IV - Borrowing
Borrowing by Government
245. (1) The Government may borrow from any source.
(2) The 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 Parliament.
(3) All money received as a result of a transaction referred to in clause (2) shall be paid
into, and form part of, the Consolidated Fund or some other public fund that is
existing or is created for the purpose of that transaction.
(4) Within seven days after either House of Parliament, by resolution, so requests, the
Minister responsible for finance shall present to both Houses of Parliament all
information concerning a loan that is necessary to show –
(a) the extent of the total indebtedness by way of principal and accumulated
interest;
(b) the provision made for servicing or repayment of the loan;
(c) the use made of the proceeds of the loan; and
(d) the progress made in the repayment of the loan.
(5) For the purposes of this Article, “loan” includes any money lent or given to the
Government on condition of return or repayment and any other form of borrowing or
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lending in respect of which money from the Consolidated Fund or any other public
fund may be used, or is required to be used, for payment or repayment.
Borrowing by devolved governments
246. (1) A devolved government may raise loans for development or recurrent expenditure in
accordance with conditions determined by an Act of Parliament.
(2) An Act of Parliament referred to in clause (1) may be enacted only after all relevant
recommendations of the Commission on Revenue Allocation have been considered.
(3) A devolved government shall not borrow without first obtaining approval from its
assembly or council.
Public debt
247. (1) The public debt of the Republic shall be charged on the Consolidated Fund and other
public funds of the Republic.
(2) For the purposes of this Article, the public debt includes the interest on that debt,
sinking fund payments in respect of that debt, the costs, charges and expenses
incidental to the management of that debt and outstanding guarantees by the State.
(3) The aggregate amounts borrowed in any financial year by both the Government and
all devolved governments shall not be such as to increase the accumulated public
debt to an amount greater than fifty per cent of the overall gross domestic product of
the Republic in the immediately preceding financial year.
Loan guarantees by governments
248. (1) An Act of Parliament shall provide terms and conditions under which each level of
government may guarantee a loan.
(2) An Act of Parliament referred to in clause (1) may be enacted only after any
recommendations of the Commission on Revenue Allocations have been considered.
(3) Within two months after the end of each financial year, each government, shall each
publish a report on the guarantees that it gave during that year.
Part V – Budgets
Principles
249. Budgets of the Government and devolved governments shall contain –
(a) estimates of revenue and expenditure, differentiating between recurrent and
development expenditure;
(b) proposals for financing any anticipated deficit for the period to which they
apply; and
(c) all proposals regarding borrowing and other forms of public liability that
will increase public debt during the ensuing year.
National annual estimates
250. (1) On a date not later than two months before the end of each financial year the Minister
responsible for finance shall lay before the National Assembly –
(a) estimates of the revenues and expenditure of Government for the following
financial year; and
(b) a detailed fiscal and strategic plan for economic and social development for
a period of three years.
(2) At least three months before the end of each financial year, the head of each selfaccounting
department, State organ, commission or organization established under
this Constitution shall submit estimates of revenues and expenditures for the
following year to the Minister responsible for finance.
(3) The estimates prepared under clause (2) shall be laid before the Assembly by the
Minister responsible for finance without revision but with any recommendations that
the Commission on Revenue Allocation may have on them.
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(4) At any time before the Assembly considers the estimates of revenue and expenditure
laid before it by or on the authority of the Minister responsible for finance, an
appropriate committee of the Assembly shall discuss and review the estimates and
make appropriate recommendations to the Assembly.
(5) The committee referred to in clause (4) shall, in discussing and reviewing the
estimates, seek representations from the public and the Economic and Social Council,
and those recommendations shall be taken into account when the committee makes
its recommendations to the Assembly.
Appropriation Bills
251. (1) When the estimates of expenditure, other than expenditure charged on the
Consolidated Fund by this Constitution or an Act of Parliament, have been approved
by the National Assembly, they shall be included in a Bill, to be known as an
Appropriation Bill, which shall be introduced into the Assembly to provide for the
issue from the Consolidated Fund of the sums necessary to meet that expenditure and
for the appropriation of those sums for the purposes specified in the Bill.
(2) If, in respect of any financial year –
(a) the amount appropriated for any purpose under the Appropriation Act is
insufficient or that a need has arisen for expenditure for a purpose for which
no amount has been appropriated by that Act; or
(b) money has been expended out of the Contingency Account for a purpose for
which no amount has been appropriated by that Act,
a supplementary estimate showing the sums required or spent shall be laid before the
Assembly and, in the case of excess expenditure, within four months after the first
drawing on the money is made.
(3) The sums sought in a supplementary estimate for purposes for which money already
appropriated was insufficient shall not in total exceed ten per cent of the sums
previously appropriated by Assembly for those purposes during that financial year.
(4) Where, in respect of any financial year, a supplementary estimate has, or
supplementary estimates have, been approved by Assembly in accordance with
clause (2), a Supplementary Appropriation Bill shall be introduced into Assembly in
the financial year next following the financial year to which the estimates relate,
providing for the appropriation of the sums so approved for the purposes specified in
those estimates.
(5) Article 250(5) applies to estimates prepared under clause (2).
Annual budget of devolved governments
252. An Act of Parliament shall prescribe –
(a) the structure and contents of the plans and budgets of all devolved
governments;
(b) when the devolved governments’ plans and budgets shall be tabled; and
(c) the form and manner of consultation between the national and the devolved
governments in the process of preparation of plans and budgets.
Part VI – Financial Management
Procurement of public goods and services
253. (1) When a State organ or any other public institution at any level of government
contracts for goods or services, it shall do so in accordance with a system that is fair,
equitable, transparent, competitive and cost-effective.
(2) An Act of Parliament shall prescribe a framework within which policies may be
implemented, providing for all or any of the following –
(a) categories of preference in the allocation of contracts;
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(b) the protection or advancement of persons, categories of persons or groups
previously disadvantaged by unfair competition or discrimination;
(c) sanctions against contractors that have not performed according to
professionally regulated procedures, contractual agreements or legislation;
and
(d) sanctions against persons who have defaulted on their tax obligations, or
have been guilty of corrupt practices or serious violations of fair
employment laws and practices.
Accounts and audit of public institutions
254. (1) The Principal Secretary in charge of a ministry and the accounting officer in charge
of a department or a public body are each accountable to The National Assembly for
funds in that ministry, department or public body.
(2) The accounts of all governments and state organs shall be audited by the Auditor-
General.
(3) The accounts of the offices of the Controller of Budget and the Auditor-General shall
be audited and reported on by a professionally qualified accountant appointed by the
National Assembly
(4) If, while, the holder of a public office, including a political office, a person directs or
approves the use of public funds contrary to law, regulations or instructions, that
person is liable for any loss arising from that use and is obliged to make good the
loss, whether that person remains the holder of that office or not. Unless in Chapter
Nine
(5) An Act of Parliament shall provide for the keeping of records and auditing of
accounts of the devolved governments, and prescribe other measures for securing
efficient and transparent fiscal management
Treasury control
255. (1) An Act of Parliament shall establish an organ of the national government, to be
known as the Treasury, and prescribe measures to ensure both transparency and
expenditure control in each level of government.
(2) The Treasury, with the concurrence of the Minister responsible for finance, may stop
the transfer of funds to a State organ or any other public institution only for a serious
material breach, or persistent material breaches, of the measures established in terms
of clause (1).
(3) A decision to stop the transfer of funds taken in terms of clause (2) may not stop the
transfer of more than fifty per cent of funds due to any unit of devolved government.
(4) A decision to stop the transfer of funds taken in terms of clause (2) –
(a) shall not stop the transfer of funds for more than sixty days; and
(b) may be enforced immediately, but will lapse retrospectively unless, within
thirty days after the date of the decision, the National Assembly approves it
by resolution passed by both Houses.
(5) The National Assembly may renew a decision to stop the transfer of funds for no
more than sixty days at a time.
(6) Before the National Assembly may approve or renew a decision to stop the transfer
of funds –
(a) the Controller of Budget shall make a report to the National Assembly; and
(b) the affected devolved government, State organ or public institution shall be
given an opportunity to answer the allegations against it, and to state its
case, before the relevant parliamentary committee.
Controller of Budget
256. (1) There shall be a Controller of Budget who shall be appointed by the President with
the approval of the National Assembly.
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(2) To be appointed Controller of Budget, a person shall be –
(a) a professionally qualified accountant of not less than ten years’ standing
who has extensive experience in the management of public finance; and
(b) a person of integrity and moral probity.
(3) The Controller of Budget holds office, subject to Article 290(5)(b), (c), and (d) for a
term of five years and is eligible, if qualified, for re-appointment for one further term.
(4) The Controller of Budget shall oversee the implementation of the budgets as
approved by the different levels of government by –
(a) ensuring that money is spent in accordance with appropriations or, in the
case of money drawn from the Contingency Fund, in accordance with the
Act of Parliament referred to in Article 244;
(b) providing accounts of actual, as opposed to budgeted, expenditure;
(c) providing technical advice to parliamentary finance committees; and
(d) working closely with the Treasury, departments and Ministries.
(5) Within two months after the end of each financial year, the Controller of Budget shall
submit to each House of Parliament a report on the operations of the office of
Controller of Budget during that financial year.
(6) Within three months after the submission of a report under clause (5), Parliament
shall debate and consider the report and take appropriate action.
(7) In performing the functions of office, the Controller of Budget shall not be under the
direction or control of any person or authority.
(8) The grounds and procedure for the removal of the Controller of Budget, are as set out
in Article 294
(9) The remuneration and benefits of the Controller of Budget shall be charged on the
Consolidated Fund.
Auditor-General
257. (1) There shall be an Auditor-General who shall be appointed by the President with the
approval of the National Assembly.
(2) To be appointed Auditor-General, a person shall be –
(a) a professionally qualified accountant of not less than ten years’ standing
who has extensive audit and public finance experience; and
(b) a person of integrity and moral probity.
(3) The Auditor-General holds office, subject to Article 290(5)(b), (c) and (d), for a term
of five years and is eligible, if qualified, for re-appointment for one further term.
(4) The Auditor-General shall –
(a) audit the accounts of the Government and devolved levels of government
and of state corporations;
(b) confirm that all money that has been appropriated by Parliament, or raised
by any level of government, and disbursed has been applied to the purpose
to which it was appropriated, that the expenditure conforms to the authority
that governs it and that the use of the money was economical, efficient and
effective; and
(c) within six months after the end of each financial year, audit and report, in
respect of that financial year, on –
(i) the public accounts of the national and devolved levels of
government;
(ii) the accounts of all funds and authorities of the Government and
devolved levels of government;
(iii) the accounts of all courts;
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(iv) the accounts of every Commission established by this Constitution;
(v) the accounts of the Assembly and the Senate;
(vi) the accounts of political parties funded from public funds;
(vii) the accounts of any other organization funded from public funds;
and
(viii) the public debt.
(5) Within three months after the submission of the report referred to in clause (4)(c),
Parliament shall debate and consider the report and take appropriate action.
(6) An Act of Parliament shall provide for the keeping of records and auditing of
accounts of the devolved governments, and prescribe other measures for securing
efficient and transparent fiscal management.
(7) In performing the functions of the office, the Auditor-General shall not be under the
direction or control of any person or authority.
(8) The grounds and procedure for the removal of the Auditor-General, are as set out in
Article 294.
(9) The remuneration and benefits of the Auditor-General shall be charged on the
Consolidated Fund.
Part VII – Institutions
National Revenue Authority
258. (1) There is established the National Revenue Authority.
(2) The Authority is responsible for the collection of revenue due to the Government
except as determined by an Act of Parliament.
(3) The composition, functions and operations of the Authority are as prescribed by an
Act of Parliament.
Commission on Revenue Allocation
259. (1) There is established the Commission on Revenue Allocation.
(2) The Commission shall consist of the following persons appointed by the President –
(a) a chairperson;
(b) fourteen persons, consisting of one nominee from each regional assembly;
(c) two persons to represent district governments, appointed in accordance with
an Act of Parliament;
(d) two persons nominated by the National Assembly;
(e) the Principal Secretary in the Ministry responsible for finance; and
(f) the Controller of Budget.
(3) The principal function of the Commission is to determine the basis for the sharing of
revenue from national resources and to ensure that –
(a) the sharing is equitable as between the Government and the various levels of
devolved government;
(b) the sharing is equitable as between the various levels of devolved
government at any particular level; and
(c) where necessary, conditional or unconditional grants are made.
(4) The Commission shall –
(a) report to all levels of government its recommendations concerning the
apportionment of national revenues to the four levels of devolved
government;
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(b) frequently review such recommendations to ensure they conform with
changing circumstances; and
(c) mediate in and determine disputes relating to financial arrangements
between the Government and devolved governments.
(5) In its recommendations, the Commission shall –
(a) aim at defining and enhancing the revenue sources of governments at all
levels with the object of encouraging fiscal responsibility and moving the
devolved governments over time toward financial self-sufficiency;
(b) make proposals for affirmative action for local business persons or for
classes of persons, and social groups, previously disadvantaged and
marginalized by discrimination; and
(c) make proposals for the exclusion of contractors who default on their tax.
(6) In its recommendations concerning the distribution of national revenues, the
Commission shall take into account –
(a) the national interest;
(b) any provision that must be made in respect of the national debt and other
national obligations;
(c) the needs and interests of the Government, determined by objective criteria;
(d) the need to ensure that the regions and districts are able to provide basic
services and perform functions allocated to them;
(e) the fiscal capacity and efficiency of the regions and districts;
(f) developmental and other needs of regions and districts;
(g) economic disparities within and among the regions and the need for
financial equalisation;
(h) the need for affirmative action in respect of arid and semi-arid areas and
other marginalized areas;
(i) the need for economic optimisation of each region and district;
(j) obligations of the regions and districts in terms of national legislation;
(k) the desirability of stable and predictable allocations of revenue shares; and
(l) the need for flexibility in responding to emergencies or other temporary
needs, and other factors based on similar objective criteria.
(7) The recommendations of the Commission may be modified by the Government
supported by a majority in each House of Parliament.
(8) An Act of Parliament shall provide for procedures and the operations of the
Commission and prescribe a framework within which the policy referred to in clause
(4) may be implemented.
(9) The Commission has such other functions as are conferred upon it by an Act of
Parliament.
(10) In discharging its functions, the Commission shall have regard to such principles,
criteria, formulae, conditions and frameworks for ensuring equitable sharing and
allocation of national revenue and resources as are prescribed by an Act of
Parliament.
(11) Not later than 31st January in each year, the Commission shall prepare a report, in
accordance with requirements prescribed by an Act of Parliament, setting out its
recommendations concerning the distribution of national revenues to the several
levels of government and submit the report to Parliament for approval.
(12) The recommendations of the Commission may be amended by Parliament by a
resolution supported by a simple majority in each House of Parliament.
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(13) Recommendations of the Commission, as amended under clause (12), are binding on
all governments, and shall be reflected in their respective budgets and in their
taxation and other legislative policies.
Central Bank of Kenya
260. (1) There is established the Central Bank of Kenya.
(2) The Central Bank of Kenya is the only authority to issue the currency of Kenya.
(3) The authority of the Central Bank of Kenya vests in a Board, consisting of a
Governor, a Deputy Governor and not more than five other members.
(4) The members of the Board shall –
(a) be appointed by the President with the approval of the National Assembly;
and
(b) hold office, subject to Article 290(5)(b),(c) and (d), for a term of five years
and are eligible, if otherwise qualified, for re-appointment for one further
term.
(5) To be appointed Governor, a person shall have extensive knowledge and experience
in matters relating to economics, finance or accounting and be a person of integrity
and moral probity.
(6) The Governor of the Central Bank is the chairperson of the Board.
(7) The grounds and procedure for the removal of a member of the Board are as set out
in Article 294.
Functions of Central Bank
261. (1) The Central Bank of Kenya shall –
(a) promote and maintain the stability of the value of the currency of the
Republic;
(b) issue notes and coins;
(c) act as banker and financial advisor of the Government;
(d) conduct the monetary policy of the Government in a manner consistent with
the relevant provisions of the law in the interest of the balanced and
sustainable economic growth of the Republic;
(e) encourage and promote economic development and the efficient utilization
of the resources of the Republic, through effective and efficient operation of
a banking and credit system; and
(f) perform all such other functions, not inconsistent with this Article, as may
be prescribed by law.
(2) In performing its functions, the Central Bank of Kenya shall conform to this
Constitution and shall not be subject to the direction or control of any person or
authority.
(3) As from the effective date, notes and coins issued by the Central Bank of Kenya may
bear only the portrait of the first President of the Republic of Kenya or other images,
not including portraits that depict or symbolize Kenya or an aspect of Kenya.
Economic and Social Council
262. (1) There is established the Economic and Social Council consisting of nine persons
appointed, on the basis of merit but taking into account the diversity of the people of
Kenya, by the President acting on the advice of the Prime Minister, with the approval
of the National Assembly.
(2) Persons appointed to the Council shall –
(a) be qualified and experienced in economic and social development matters;
and
(b) have no partisan affiliation once appointed to the Council.
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(3) The functions of the Council are –
(a) to advise the Government and Parliament on matters of economic and social
concern to the people of the Republic;
(b) to advise the Government on the formulation, implementation, monitoring
and evaluation of strategic economic and social policies;
(c) to consider and report to Parliament on the economic and social implications
of all bills and budgetary proposals introduced in Parliament;
(d) to monitor progress in the improvement of the living standards of the people
of Kenya, particularly those of the poor and the disadvantaged; and
(e) such other functions as are conferred on it by an Act of Parliament.
(4) Subject to this Article, Parliament shall enact legislation –
(a) regulating the manner in which the Council carries out its functions; and
(b) prescribing the form, content and manner of submitting the reports of the
Council.
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CHAPTER SIXTEEN
THE PUBLIC SERVICE
Part I – Public Service
Values and principles of public service
263. (1) The guiding values and principles of public service include –
(a) maintenance and promotion of a high standard of professional ethics;
(b) promotion of efficient, effective and economic use of resources;
(c) effective, impartial, fair and equitable provision of services;
(d) encouragement of people to participate in the process of policy making;
(e) prompt, efficient and timely response to people’s needs;
(f) commitment to the implementation of public policy and programmes;
(g) accountability for administrative acts of omission and commission;
(h) transparency fostered by providing the public with timely, accessible and
accurate information;
(i) subject to paragraph (k), merit as the basis of appointments and promotions;
(j) adequate and equal opportunities for appointments, training and
advancement of men and women and the members of all ethnic groups; and
(k) representation of the Kenya’s diverse communities, persons with disabilities
and Minorities and marginalized groups in the composition of the public
service at all levels.
(2) The principles of public service above apply to –
(a) public service in every level of government;
(b) public service in all State organs; and
(c) public service in all public enterprises.
The Public Service Commission
264. (1) There is established the Public Service Commission.
(2) There shall be a secretary to the Commission who shall be the Chief Executive and
shall be appointed by the President on the recommendation of the Public Service
Commission and with the approval of the National Assembly.
(3) The Secretary of the Commission shall hold office for a term of five years and is
eligible for re-appointment for only one further term of five years.
Powers and Functions
265. (1) The powers and functions of the Commission are –
(a) except where there is a contrary provision in this Constitution, to constitute
and abolish offices;
(b) except where there is a contrary provision in this Constitution, to appoint
persons to hold or act in offices established under paragraph (a), to confirm
appointments and to exercise disciplinary control over and remove persons
holding or acting in those offices;
(c) to appoint persons to hold or act in the public service, to confirm
appointments, to exercise disciplinary control over such persons and to
remove them from office;
(d) to promote the values and principles set out in Article 12 throughout the
public service;
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(e) to investigate, monitor and evaluate the organization, administration and
personnel practices of the public service;
(f) to ensure efficient and effective performance of the public service;
(g) to ensure that procedures relating to recruitment, transfers, promotions and
disciplinary measures of personnel comply with the values and principles set
out in Articles 12 and 263;
(h) to review the terms and conditions of service, code of regulations and
qualifications of public officers and to develop human resources in the
public service and make recommendations on them to Government;
(i) to report on the activities and the performance of its functions in accordance
with Article 292 and to evaluate the extent to which the values and
principles set out in Articles 12 and 263 are complied with;
(j) to hear and determine appeals in respect of matters relating to public service
from the devolved governments; and
(k) to perform such other functions as may be prescribed by this Constitution or
an Act of Parliament.
(2) The Commission may, subject to conditions specified by it, delegate any of its
powers and functions under this Article to any one or more of its members, or to any
officer, body or authority in the public service.
(3) Clause (1) shall not apply to any of the following offices in the public service –
(a) the State offices;
(b) the office of Ambassador, High Commissioner or other principal
representative of the Republic in another country;
(c) an office to which Article 149; 201(1), 268, 269, 283 or 284 refers;
(d) an office in a devolved government; and
(e) except in relation to appeals referred to in clause (1)(g), any office in the
service of a devolved government.
(4) A person shall not be appointed under clause (1) to act in any office on the personal
staff of the President or a retired President, except with the consent of the President
or retired President.
(5) Parliament shall enact legislation for the better functioning of the Commission.
Staffing of devolved governments
266. A regional or district government is responsible for the recruitment, appointment, promotion,
transfer and dismissal of members of its public services within a framework of uniform norms
and standards prescribed by Act of Parliament.
Protection of public officers
267. A public officer shall not be –
(a) victimized or discriminated against for having performed the functions of
office in accordance with this Constitution or any other law; or
(b) dismissed or removed from office or demoted in rank or otherwise punished
without due process of the law.
Teachers Service Commission
268. (1) There is established the Teachers Service Commission.
(2) The functions of the Teachers Service Commission are –
(a) to register trained teachers; and
(b) subject to Article 266 –
(i) to recruit and employ registered teachers;
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(ii) to assign teachers employed by the Commission for service in any
public school and other institutions;
(iii) to promote and transfer any such teacher;
(iv) to terminate the employment of any such teacher; and
(v) to do anything which is incidental or conducive to the exercise of
its powers under sub-paragraphs (i) to (iv).
(3) The Commission shall keep under review the standards of education, training and
fitness to teach, appropriate to persons entering the teaching service and the supply of
teachers and to advise the Government on matters relating to the teaching profession.
Health Services Commission
269. (1) There is established the Health Services Commission consisting of the chairperson
and nine other members, five of whom shall be health professionals.
(2) The functions of the Health Services Commission are –
(a) to register trained health workers;
(b) subject to Article 266 –
(i) to recruit and employ registered health workers;
(ii) to assign health workers employed by the Commission for service
in any public hospital and other institutions; and
(iii) to promote and transfer any such health workers;
(c) ensure planned health, human resources development, professional
standards and ethics;
(d) to ensure registration of all health sector professionals;
(e) to conduct medical audit and research;
(f) to ensure viable technical management including procurement of services
and supplies;
(g) to oversee health care financing; and
(h) to perform any other functions conferred on the Commission by an Act of
Parliament.
Part II – The Kenya Correctional Service
Establishment
270. (1) There is established the Kenya Correctional Service.
(2) The objects of the Kenya Correctional Service are to ensure –
(a) the safe custody of the country’s prison population and the provision of
humane living conditions in prisons;
(b) the supervision of offenders within the community who are serving noncustodial
sentences or who are on probation; and
(c) the rehabilitation of offenders in order to facilitate their return to useful lives
within society.
(3) The Kenya Correctional Service shall be structured and regulated so as to –
(a) achieve the highest standards of professionalism and discipline among its
members and by its members in the exercise of their respective powers;
(b) work to eliminate and avoid corruption;
(c) observe human rights standards in the exercise of its powers and the
performance of its functions; and
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(d) train its members to the highest possible standards of competence and on
minimal use of force, to have integrity and respect for human rights and
fundamental freedoms and dignity, and to recognize the duty of
accountability to society.
(4) The functions of the Kenya Correctional Service shall be organized to take into
account the structure of devolution.
(5) Parliament shall enact legislation –
(a) establishing adequate mechanisms for the accountability and governance of
the Kenya Correctional Service;
(b) providing for the organization, administration and functioning of the Kenya
Correctional Service; and
(c) generally regulating the Kenya Correctional Service.
Director-General
271. (1) There is established the office of Director-General of the Kenya Correctional Service.
(2) The Director-General shall be appointed by the President, on the advice of the Public
Service Commission and after approval by the National Assembly.
(3) A person shall not be appointed as Director-General unless that person holds a degree
from a recognized university; and
(a) has served in the Kenya Correctional Service for at least ten years; or
(b) has wide experience in the management and administration of correctional
services.
(4) The power to appoint persons to hold or act in offices in the Kenya Correctional
Service, including the power to confirm appointments and to exercise disciplinary
control over persons holding or acting in those offices, shall vest in the Public
Service Commission.
(5) The Director-General shall hold office for a term of five years and shall be eligible
for re-appointment for one further term of five years.
(6) Clause 290(3) relating to qualifications of Commissioners shall apply to the Director
General.
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CHAPTER SEVENTEEN
NATIONAL SECURITY
Part I – National Security Organs
Principles and objects
272. (1) National Security is the protection of the territory of Kenya, its people, their property,
freedoms, and other national interests against internal and external threats.
(2) The national security of Kenya shall be promoted and guaranteed in accordance with
the following principles –
(a) national security is subject to the authority of this Constitution and
Parliament;
(b) national security shall be pursued in compliance with the law, including
international law, and with the utmost respect for the rule of law,
democracy, human rights and fundamental freedoms;
(c) national security organs shall respect the diverse culture of the communities
within the Kenya in discharging their duties; and
(d) recruitment by the national security organs shall reflect the diversity of the
Kenyan people in equitable proportions.
National security organs
273. (1) The national security organs are –
(a) the Kenya Defence Forces;
(b) the National Intelligence Service;
(c) the Kenya Police Service; and
(d) the Administration Police Service.
(2) The primary object of the national security organs and security system is to safeguard
the well-being of the people of Kenya and their property, and the sovereignty, peace,
national unity and territorial integrity of the Republic.
(3) In the performance of their functions, the national security organs and every member
of the national security organs shall not –
(a) act in a partisan manner;
(b) further any interest of a political party or cause; or
(c) prejudice a political interest or political cause that is legitimate under this
Constitution.
(4) A person shall not establish an organization concerned with national security except
as provided for by this Constitution or by an Act of Parliament.
(5) The National security organs shall be subordinate to civil authority.
(6) Parliament shall enact legislation to provide for the functions, organisation and
administration of the national security organs.
Establishment of the National Security Council.
274. (1) There is established a National Security Council consisting of –
(a) the President;
(b) the Deputy President;
(c) the Prime Minister;
(d) the Minister responsible for defence;
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(e) the Minister responsible for foreign affairs;
(f) the Minister responsible for internal security;
(g) the Attorney-General;
(h) the Chief of Kenya Defence Forces;
(i) the Director-General of the National Intelligence Service;
(j) the Inspector-General of the Kenya Police Service; and
(k) the Commandant-General of the Administration Police Service.
(2) The President shall preside at the meetings of the Council, and, in the absence of the
President, the Deputy President, and in the absence of the Deputy President, the
Prime Minister shall preside.
(3) The National Security Council shall elect or appoint its secretary.
Functions of the National Security Council
275. (1) The National Security Council shall –
(a) integrate the domestic, foreign and military policies relating to national
security in order to enable the national security organs to co-operate
effectively;
(b) assess and appraise the objectives, commitments and risks to the Republic in
relation to actual and potential national security capabilities; and
(c) initiate and consider policies on matters of common interest to the national
security organs and exercise supervisory control over the national security
organs.
(2) The National Security Council shall report annually to Parliament on the state of the
security of the Republic.
(3) The National Security Council may with the approval of Parliament –
(a) deploy national forces outside Kenya for –
(i) United Nations and other peace support operations; or
(ii) other support operations; or
(b) approve the deployment of foreign forces in Kenya.
Part II – The Kenya Defence Forces
Establishment
276. (1) There is established the Kenya Defence Forces consisting of –
(a) the Kenya Army;
(b) the Kenya Air Force; and
(c) the Kenya Navy.
(2) A person shall not raise a military or a paramilitary organization except as provided
for under this Constitution.
(3) There is established a Defence Council consisting of –
(a) the Minister responsible for defence who shall be the chairperson;
(b) the Deputy Minister responsible for defence who shall be the vicechairperson;
(c) the Chief of the Kenya Defence Forces;
(d) the Army Commander;
(e) the Air Force Commander;
(f) the Navy Commander; and
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(g) the Principal Secretary in the Ministry responsible for defence.
(4) The Defence Council shall appoint its Secretary.
(5) The Defence Council shall be responsible for the overall policy, control, and
supervision of the Kenya Defence Forces and such other functions as Parliament by
legislation prescribes.
Command
277. (1) The President shall, in consultation with the Defence Council, appoint the Chief of
the Kenya Defence Forces, the Army Commander, the Air Force Commander, and
the Navy Commander.
(2) The Commander-in-Chief, the Chief of the Kenya Defence Forces and service
commanders shall exercise operational command over the Kenya Defence Forces and
perform such other duties as Parliament may by legislation prescribe.
Part III – The National Intelligence Service
Establishment
278. (1) There is established the National Intelligence Service.
(2) The President shall, with the approval of the National Assembly, appoint the
Director-General of the National Intelligence Service.
(3) The Director-General of the National Intelligence Service shall hold office for a term
of five years, and shall be eligible for re-appointment for a further and final term of
five years.
(4) The Director-General may be removed from office by the President for –
(a) inability to perform the functions of office arising from infirmity of body or
mind;
(b) misconduct;
(c) incompetence; or
(d) any other just cause.
(5) The Director-General shall not be removed from office except on the
recommendation of a tribunal appointed by the President comprising –
(a) a High Court Judge, who shall be the chairperson;
(b) the chairperson of the Police Service Commission; and
(c) one other person of integrity who has served the public with distinction.
(6) The Director-General shall exercise command over the National Intelligence Service
and perform such other duties as Parliament by legislation prescribe.
(7) The National Intelligence Service shall be responsible for security intelligence and
counter intelligence to enhance national security, defend the constitution, the interests
of the state and the well being of the people of Kenya, and shall exercise such other
functions as Parliament by legislation prescribes.
(8) In exercising its functions, the National Intelligence Service shall respect human
rights, fundamental freedoms and the rule of law.
(9) No intelligence service, other than the National Intelligence Service, an intelligence
division of the Kenya Defence Forces or the Kenya Police Service, shall be
established except by legislation.
National Intelligence Council.
279. (1) There is established a National Intelligence Council consisting of –
(a) the Minister responsible for national and intelligence, who shall be the
chairperson;
(b) the Minister responsible for foreign affairs;
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(c) the Minister responsible for finance;
(d) the Attorney-General; and
(e) the person heading the Public Service.
(2) The Director-General of the National Intelligence Service shall be the secretary to the
National Intelligence Council.
(3) The functions of the National Intelligence Council shall be –
(a) to advise the National Intelligence Service on all matters pertaining to –
(i) national security and intelligence policies;
(ii) the administration of the service; and
(iii) the expenditure of the service; and
(b) to perform such other functions as are conferred on the Council by
legislation.
Part IV – The Kenya Police Service
Establishment
280. (1) There is established the Kenya Police Service.
(2) The Kenya Police Service is a national police service, and the division of its
functions shall be organized to take into account the structure of devolution.
Objects and functions
281. (1) The Kenya Police Service shall –
(a) strive for the highest standards of professionalism and discipline;
(b) work to eliminate corruption;
(c) observe the principles specified in Article 272(3);
(d) observe human rights standards;
(e) train staff to the highest possible standards of competence and integrity and
to respect human rights and dignity;
(f) abide by the principles of transparency and accountability;
(g) foster and promote relationships with the broader society; and
(h) co-ordinate, supervise and control all private and quasi-government security
organizations to ensure safety and security in Kenya.
(2) The Kenya Police Service shall work with the people to ensure –
(a) a peaceful and safe environment;
(b) the protection of rights and freedoms;
(c) the security of the people;
(d) the prevention and detection of crime;
(e) the support of victims of crime and disorder; and
(f) the protection of life and property.
Inspector-General
282. (1) The President shall, with the approval of the National Assembly, appoint the
Inspector-General of the Kenya Police Service.
(2) The Inspector-General shall hold office for one term of five years.
(3) The Inspector-General shall exercise command over the Kenya Police Service and
perform any other duties that Parliament by legislation prescribes.
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(4) The Inspector-General shall in exercise of his or her functions not be subject to the
direction or control of any person or authority.
(5) The Inspector-General may be removed from office by the President for –
(a) inability to perform the functions of office arising from infirmity of body or
mind;
(b) misconduct;
(c) incompetence; or
(d) any other just cause.
(6) The Inspector-General shall not be removed from office except on the
recommendation of a tribunal appointed by the President consisting of –
(a) a High Court Judge, who shall be the chairperson;
(b) the chairperson of the Police Service Commission; and
(c) one other person of integrity who has served the public with distinction.
Police Service Commission
283. (1) There is established the Police Service Commission.
(2) The Police Service Commission shall consist of –
(a) a person who is qualified to be appointed as a High court Judge;
(b) two retired senior police officers, one from each of the Services;
(c) three persons of integrity who have served the public with distinction;
(d) the Inspector-General of the Kenya Police Service; and
(e) the Commandant-General of the Administration Police Service.
(3) The President shall appoint a Chairperson from among the members appointed under
clause (2).
(4) The Police Service Commission shall appoint its secretary.
(5) The functions of the Police Service Commission are –
(a) recruit and appoint persons to hold or act in an office, and to determine
promotions in the Services;
(b) keep under review all matters relating to the standards or qualifications
required of members of the Services;
(c) keep under review all matters relating to salaries, allowances and other
terms and conditions of service;
(d) exercise disciplinary control, including hearing and disposal of appeals by
persons in the Services; and
(e) exercise such other functions as are provided for by this Constitution or an
Act of Parliament.
(6) In this Article “Services” means the Kenya Police Service and the Administration
Police Service.
Part V – The Administration Police Service
Establishment
284. (1) There is established a service to be known as the Administration Police Service.
(2) The Administration Police Service shall be a separate service from the Kenya Police
Service.
(3) The Administration Police Service shall be organized to take into account the
structure of devolution.
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(4) The Administration Police Service shall be a service under the Police Service
Commission.
Functions
285. (1) The Administration Police Service shall work with the people to –
(a) preserve and maintain public peace; and
(b) prevent commission of offences.
(2) The Administration Police –
(a) may arrest offenders and do all such things as are necessary for the
preservation of the public peace and protection of human rights and
freedoms; and
(b) shall observe the principles specified in Article 272(3).
Commandant-General
286. (1) The President shall, with the approval of the National Assembly, appoint the
Commandant-General of the Administration Police Service.
(2) The Commandant-General of the Administration Police Service shall hold office for
one term of five years.
(3) The Commandant-General of the Administration Police shall exercise command over
the Administration Police Service and perform such other duties as Parliament may
by legislation prescribe.
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CHAPTER EIGHTEEN
CONSTITUTIONAL COMMISSIONS
Application of Chapter
287. This Chapter applies to all constitutional Commissions except where specific provision is
made to the contrary elsewhere in this Constitution.
Objects and independence of Commissions
288. (1) The objectives of constitutional Commissions are to –
(a) protect the sovereignty of the people;
(b) secure the observance by all State organs of democratic principles and
values; and
(c) ensure the maintenance of constitutionality, by insulating essential
democratic functions from improper influence, manipulation or interference.
(2) Constitutional Commissions –
(a) are subject only to this Constitution and the law;
(b) are independent and not subject to direction or control by any person or
authority; and
(c) shall be impartial and perform their functions without fear, favour or
prejudice.
(3) Where appropriate, a constitutional Commission shall –
(a) establish branches at all levels of devolved government; and
(b) offer its services to the public free of charge.
Incorporation
289. A constitutional Commission is a body corporate and –
(a) has perpetual succession and a common seal; and
(b) is capable of suing and being sued in its corporate name.
Composition of Commissions
290. (1) A constitutional Commission shall consist of at least three and not more than ten
members.
(2) Unless otherwise specified in this Constitution, members of a constitutional
Commission shall be –
(a) identified and recommended in a manner prescribed by an Act of
Parliament, taking into consideration the principles of affirmative action;
(b) appointed by the President; and
(c) approved by Parliament.
(3) To be appointed to a constitutional Commission, a person shall –
(a) have the specific qualifications required for that commission set out in this
Constitution; and
(b) have appropriate qualifications and experience.
(4) A member of a constitutional Commission may be full time or part time.
(5) A member of a constitutional Commission shall –
(a) unless the member is ex-officio –
(i) hold office for a term of five years, and be eligible for reappointment
for only one further term; and
(ii) retire from office on attaining age sixty-five;
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(b) unless an ex-officio or part-time member, not hold any other office of profit
or emolument or any other employment whether public or private, directly
or indirectly; and
(c) comply with the principles set out in Chapter Nine.
(6) A member of a constitutional Commission is not liable to an action or suit for a
matter or anything done in good faith in the performance of a function of office as a
member.
(7) Members of a constitutional Commission shall elect a chairperson from amongst
themselves –
(a) at the first sitting of the Commission; and
(b) whenever it is necessary to fill a vacancy in that office.
Staff of Commissions
291. A constitutional Commission shall recruit such staff as it may require for the discharge of its
functions.
General functions of Commissions
292. (1) A constitutional Commission shall educate the public on its role, purpose and
functions, and –
(a) may conduct investigations on its own initiative or upon a complaint made
by a member of the public;
(b) has the powers of the High Court to –
(i) issue summonses;
(ii) compel the attendance of witnesses to give evidence or produce
documents for the purposes of its investigations; and
(iii) hold a person in contempt of the Commission and commit that
person to the High Court;
(c) has the powers necessary for conciliation, mediation and negotiation; and
(d) to the extent permitted by legislation, may award compensation or impose a
fine.
(2) A complaint to a constitutional Commission may be lodged by any person entitled to
lodge a complaint under Articles 31(1) and (2) –
(a) in writing setting out the grounds of the complaint and the facts in support
of those grounds; or
(b) orally, in which case it shall be reduced into writing and signed by an
official of the Commission.
(3) A constitutional Commission may, in addition to the functions conferred by this
Constitution, perform such other functions as Parliament by legislation prescribes.
Proceedings of Commissions
293. (1) The proceedings of a Commission are valid even when there is a vacancy in its
membership.
(2) A constitutional Commission shall regulate its own procedure so far as is not
provided for by legislation.
Removal from office
294. (1) A member of a constitutional Commission may be removed from office only for –
(a) inability to perform the functions of the office arising from infirmity of body
or mind;
(b) misconduct;
(c) bankruptcy; or
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(d) incompetence.
(2) A person desiring the removal of a member of a constitutional Commission on any
ground set out in clause (1) may present a petition to the National Assembly setting
out the alleged facts constituting those grounds.
(3) The Assembly shall consider the petition and if it is satisfied that it discloses a
ground under clause (1), it shall send the petition to the President.
(4) On receiving a petition under clause (3), the President shall –
(a) suspend the member pending the outcome of the complaint; and
(b) appoint a tribunal in accordance with clause (5).
(5) The tribunal shall be appointed by the President and shall consist of –
(a) the chairperson, who holds or has held office in the Republic as a judge of
the superior courts of record;
(b) at least two persons who are qualified to be appointed as High Court Judges;
and
(c) one other member who is qualified to consider the facts in relation to the
particular grounds for removal.
(6) The tribunal shall investigate the matter, and report on the facts and make a
recommendation to the President, who shall act in accordance with the
recommendation within thirty days.
(7) While a member is suspended under this Article, the member is entitled to continue
to receive the remuneration and benefits of that office.
Funds of Commissions
295. (1) The funds of a constitutional Commission include –
(a) money voted by Parliament for the purposes of the Commission; and
(b) any other money received by the Commission in the performance of its
functions.
(2) The administrative expenses of a constitutional Commission including remuneration
and benefits payable to, or in respect of, persons serving with the Commission are a
charge on the Consolidated Fund.
(3) Within three months after the end of the financial year, a constitutional Commission
shall submit its books and records of account to the Auditor-General for audit.
(4) Within three months after submission of the books and records of account, the
Auditor-General shall submit the report on the accounts to the President and
Parliament.
Annual and other reports
296. (1) Within seven months after the end of the financial year, a constitutional Commission
shall submit a report to the President and to Parliament.
(2) The report shall contain –
(a) a statement on its performance in meeting its objectives;
(b) a statement on its activities for the year and its projection on its future
activities; and
(c) the report of the Auditor-General.
(3) At any time, either House of Parliament may request a constitutional Commission to
submit to it a report on a particular issue.
(4) The President shall respond to the report of the constitutional Commission in writing
to Parliament, which shall debate the report together with the response of the
President.
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(5) A report of a constitutional Commission under this Article may be admitted as
evidence in a court.
Additional constitutional Commissions
297. In addition to the other constitutional Commissions established in this Constitution, the
following constitutional Commissions are established –
(a) the Commission on Human Rights and Administrative Justice;
(b) the Gender Commission;
(c) the Salaries and Remuneration Commission; and
(d) the Commission on the Implementation of Constitution.
Commission on Human Rights and Administrative Justice
298. (1) The Commission on Human Rights and Administrative Justice consists of –
(a) a chairperson;
(b) the Human Rights Commissioner;
(c) the People’s Protector, who shall have special responsibility for the right to
fair administration;
(d) the Minority Rights Commissioner, who shall have special responsibility for
the rights of ethnic and religious minorities and marginalized communities;
and
(e) six other members.
(2) Of the six commissioners referred to in clause (1)(e) –
(a) one shall have professional knowledge and experience and special
responsibility for matters relating to children;
(b) one shall be a person with disability who has knowledge and experience and
special responsibility for matters relating to disability;
(c) one shall have knowledge and experience and special responsibility for
matters relating to basic needs; and
(d) one shall have knowledge and experience and special responsibility for
matters of the rights of the aged.
(3) Subject to any express provision in respect of other Commissions, the functions of
the Commission are –
(a) to promote respect for human rights and develop a culture of human rights;
(b) to promote the protection, development and attainment of human rights in
public and private institutions;
(c) to promote high standards of human rights in the Republic;
(d) to monitor, investigate and report on the observation of human rights in all
spheres of life in the Republic;
(e) to investigate any act or omission in public administration that is alleged to
be prejudicial or improper;
(f) to investigate human rights abuses within the national security organs and in
their relationships with the public;
(g) to take steps to secure appropriate redress where human rights have been
violated;
(h) to ensure that State organs are responsive to the needs of the people, and
provide prompt remedy in cases of failure;
(i) to receive complaints about abuse of power, unfair treatment, manifest
injustice, or corrupt, unlawful, oppressive or unfair official conduct;
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(j) in relation to human rights, to initiate on its own initiative or on the basis of
complaints, investigations and research and make recommendations to
improve the functioning of State organs;
(k) to improve the standards of competence, honesty, integrity and transparency
in the public services;
(l) to propose reforms to legislation that is unfair or inconsistent with this
Constitution;
(m) to propose reform to practices of State organs that are unfair or inconsistent
with this Constitution; and
(n) to recommend to the Government measures to ensure compliance with
obligations under international treaties and conventions on human rights.
Commission on the Implementation of the Constitution
299. (1) The Commission on the Implementation of the Constitution consists of –
(a) a chairperson; and
(b) nine other members.
(2) The function of the Commission is –
(a) to monitor, facilitate and oversee the development of legislation and
administrative procedures as required fully to implement this Constitution;
(b) to report twice a year to the President and Parliament on –
(i) the progress of the timely implementation of this Constitution; and
(ii) any impediments to the timely implementation of this Constitution;
and
(c) to work with the chairperson of each constitutional Commission to ensure
that the letter and the spirit of this Constitution is respected.
(3) The Commission shall stand dissolved at the full implementation of this Constitution
as determined by Parliament.
Gender Commission
300. (1) The Gender Commission consists of –
(a) a chairperson; and
(b) four other members.
(2) The functions of the Commission are –
(a) to formulate programmes that promote gender equity;
(b) to promote gender equality and equity, to co-ordinate and facilitate
mainstreaming in national development, and to advise the Government and
the devolved governments on those matters;
(c) to advise Government on appropriate allocation of resources to ensure
gender mainstreaming;
(d) to investigate and seek to resolve any gender-related complaints;
(e) to participate in the formulation of national development policies, and
supervise the implementation of national policy on gender and development;
(f) to plan, supervise and co-ordinate programmes to create public awareness
and support for gender issues, and liaise with the ministries, departments
and other agencies of the Government on gender issues;
(g) to advise in the establishment and strengthening of institutional mechanisms
that promote gender equity in all spheres of life and in particular, in
education, employment and access to natural resources;
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(h) to monitor and evaluate policies, practices and adherence to domestic and
international law with a view to ensuring compliance by organs of state,
enterprises and institutions, with the requirements of the gender provisions
of this Constitution; and
(i) to evaluate Acts of Parliament, any system of personal and family law;
customary laws and other laws with a view to ensuring compliance with the
gender provisions in this Constitution.
Salaries and Remuneration Commission
301. (1) The Salaries and Remuneration Commission consists of –
(a) a chairperson;
(b) one person representing the Attorney-General and appointed by the
Attorney-General;
(c) one person designated by the Treasury, from the Treasury;
(d) one person designated by the Public Service Commission;
(e) one person representing professional bodies;
(f) one person from an umbrella body representing employers;
(g) one person from an umbrella body representing the trade unions;
(h) one person from an umbrella body representing the informal sector; and
(i) one person representing farmers.
(2) The functions of the Salaries and Remuneration Commission are –
(a) to set and review the remuneration and benefits of all State officers, public
officers and members of all constitutional Commissions; and
(b) to harmonise the remuneration and benefits of all State officers and public
officers, including officers of devolved governments and employees of
parastatals.
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CHAPTER NINETEEN
AMENDMENT OF THE CONSTITUTION
Amendment of the Constitution
302. (1) A proposed amendment to this Constitution in respect of –
(a) the supremacy of the Constitution;
(b) the territory of Kenya;
(c) the sovereignty of the people;
(d) the principles and values of the Republic;
(e) the Bill of Rights;
(f) the term of office of the President;
(g) the independence of the Judiciary and constitutional Commissions;
(h) the functions of Parliament;
(i) the values and principles of devolution; or
(j) the provisions of this Chapter,
shall be enacted in accordance with Article 303 or 304, and approved by a simple
majority of the people in a referendum held for that purpose.
(2) An amendment to this Constitution not contemplated in clause (1) shall be enacted
either –
(a) by Parliament, in accordance with Article 303; or
(b) by the people and Parliament, in accordance with Article 304.
Amendment by Parliament
303. (1) A Bill to amend this Constitution –
(a) may be introduced in either House of Parliament;
(b) may not address any other matter apart from consequential amendments to
legislation arising from the Bill;
(c) shall not be called for second reading in either House, until at least ninety
days after the date of first reading of the Bill in that House; and
(d) shall have been enacted by Parliament when each House of Parliament has
passed the Bill, in both its second and third readings, by not less than a twothirds
majority of the total membership of that House.
(2) Parliament shall publicize any Bill to amend this Constitution, and facilitate public
discussion on that Bill.
(3) When Parliament has enacted a Bill to amend this Constitution, the Speakers of the
two Houses of Parliament shall jointly submit to the President –
(a) a certificate that the Bill has been enacted by Parliament in accordance with
this Article; and
(b) the Bill, for assent and publication.
(4) Within thirty days after the Bill is enacted by Parliament, the President shall assent to
the Bill and cause it to be published, subject to clause (5).
(5) If a Bill to amend this Constitution proposes an amendment contemplated in Article
302(1), the President shall –
(a) before assenting to the Bill, request the Electoral and Boundaries
Commission to conduct a national referendum for approval of the Bill; and
(b) within thirty days after the chairperson of the Electoral and Boundaries
Commission has certified to the President that the Bill has been approved by
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a simple majority of the citizens voting in a referendum, assent to the Bill
and cause it to be published.
Amendment by the people
304. (1) An amendment to this Constitution may be proposed by a popular initiative signed by
at least one million registered voters.
(2) A popular initiative for an amendment to this Constitution may be in the form of a
general suggestion or a formulated draft Bill.
(3) If a popular initiative is in the form of a general suggestion, the promoters of that
popular initiative shall formulate it into a draft Bill.
(4) The promoters of a popular initiative shall forward the draft Bill and the supporting
signatures to the Electoral and Boundaries Commission, which shall verify that the
initiative is supported by one million registered voters.
(5) If the Electoral and Boundaries Commission is satisfied that the initiative meets the
requirements of this Article, the Commission shall submit the draft Bill to each
district council for consideration within a period of not more than three months after
the date it was submitted by the Electoral and Boundaries Commission.
(6) When a district council has approved a draft Bill, the Chief Executive of that district
shall submit a copy of the draft Bill jointly to the Speakers of the two Houses of
Parliament, with a certificate that the district council has approved it.
(7) When a draft Bill has been approved by a majority of the district councils, it shall
forthwith be introduced in Parliament, where each House shall proceed with the Bill
in accordance with Article 303.
(8) If Parliament approves the Bill, it shall be submitted to the President for assent in
accordance with Articles 303(4) and (5).
(9) If either House of Parliament fails to pass the Bill, the Bill shall be submitted to the
people in a referendum.
(10) If a simple majority of citizens voting in a referendum under clause (9) support the
Bill, it shall be deemed to have been duly passed by Parliament and shall be
presented to the President for assent, and the provisions of Article 303(5) shall not
apply.
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CHAPTER TWENTY
GENERAL PROVISIONS
Enforcement of the Constitution
305. The provisions of Article 31 and 32 shall apply with necessary modifications to the
enforcement of other provisions of this Constitution.
Construing the Constitution
306. (1) This Constitution shall be interpreted in a manner that –
(a) promotes its purposes, values and principles;
(b) advances human rights and fundamental freedoms and the rule of law;
(c) permits the development of the law; and
(d) contributes to good governance.
(2) If there is a conflict between different language versions of this Constitution, the
English language version shall prevail.
(3) The Interpretation and General Provisions Act, Chapter 2, Laws of Kenya, in force
immediately before the effective date does not apply to this Constitution.
(4) Unless the context otherwise requires, a power conferred or a duty imposed on
Parliament by this Constitution to establish, provide for or prescribe any matter or
thing shall be exercised or discharged by an Act of Parliament.
(5) Every provision of this Constitution shall be construed according to the doctrine of
interpretation that the law is always speaking, and therefore, among other things –
(a) a power granted or duty imposed by this Constitution may be exercised or
performed as occasion requires, by the person holding the office to which
the power is granted or the duty is assigned;
(b) any reference in this Constitution or any other law to a person holding an
office under this Constitution includes a reference to the person lawfully
discharging the functions of that office at any particular time;
(c) a reference in this Constitution or any other law to an office, State organ or
locality named in this Constitution shall be read with any formal alteration
necessary to make it applicable in the circumstances; and
(d) a reference in this Constitution to an office, body or organization is a
reference to that office, body or organization, or if the office, body or
organization has ceased to exist, to its successor or to the equivalent office,
body or organization.
(6) In this Constitution, unless the context otherwise requires –
(a) if a word or expression is defined in this Constitution, any grammatical
variation or cognate expression of that word or expression bears a
corresponding meaning, read with the changes required by the context; and
(b) the word “including” means “including, but not limited to”.
(7) When calculating time between two events for any purpose under this Constitution, if
that time is expressed –
(a) as days, the day on which the first event occurs shall be excluded, and the
day by which the last event may occur shall be included;
(b) as months, the time period ends at the beginning of the day in the relevant
month –
(i) that has the same number as the date on which the period began, if
that month has a corresponding date; or
(ii) that is the last day of that month, in any other case; or
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(c) as years, the time period ends at the beginning of the date of the relevant
year that corresponds to the date on which the period began.
(8) If a period of time set out in this Constitution for any purpose is six days or less,
Sundays and public holidays shall not count when computing the time.
(9) If, in a particular circumstance, a period of time set out in this Constitution for any
purpose ends on a Sunday or a public holiday, the period extends to the first
subsequent day that is not a Sunday or public holiday.
(10) If no specific time is set out for performing a required act, that act shall be done
without unreasonable delay, and as often as occasion arises.
(11) If any person or State organ has authority under this Constitution to extend a time
period set out in this Constitution, unless a contrary intention is expressly set out in
the provision establishing that authority, it may be exercised either before or after the
expiry of the period.
Definitions
307. In this Constitution, unless the context otherwise requires –
“adult” means an individual who has attained the age of eighteen years;
“affirmative action” includes any measure designed to overcome or ameliorate an inequity or
the systemic denial or infringement of a right or freedom;
“amend” includes alter, repeal, revoke, rescind, cancel, replace, add to or vary, in whole or in
part;
“child” means an individual who has not attained the age of eighteen years;
“citizen” means a citizen of Kenya;
“civil society” means the collectivity of all socially organized entities, each of which is bound
by a voluntary set of shared rules, and is autonomous from the State;
“Consolidated Fund” means the fund established by Article 241;
“constitutional Commission” means a commission established as such by this Constitution;
“disability” includes any physical, sensory, mental, psychological or other impairment,
condition or illness that has, or is perceived by significant sectors of the community to have, a
substantial or long-term effect on an individual’s ability to carry out ordinary day-to-day
activities;
“district” includes borough;
“document” includes any publication, or any matter written, expressed, or inscribed upon any
substance by means of letters, figures or marks, or by more than one of those means, that is
intended to be used or may be used for the purpose of recording that matter;
“effective date” means the date that this Constitution comes into force;
“enactment” means legislation or subsidiary legislation;
“financial year” when used with respect to –
(a) the state, means the period of twelve months ending on the thirtieth day of
June or on such other day as Parliament may prescribe; or
(b) any person, means the period of twelve months ending on a date determined
by that person;
“Gazette” means the Kenya Gazette published by authority of the Government, or a
supplement to the Kenya Gazette;
“Government” means the National Government;
“individual” means a natural person;
“judicial officer” means a person who holds, or is acting, in the office of registrar, deputy
registrar, magistrate or Kadhi;
“Kenya” means the territory of the Republic;
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“land” includes –
(a) the surface of the earth and the subsurface rock;
(b) any body of water wholly contained upon or beneath the surface;
(c) marine waters in the territorial sea and exclusive economic zone;
(d) natural resources wholly contained upon or beneath the surface; and
(e) the air space above the surface;
“legislation” means an Act of Parliament, or a law made by an authority subordinate to
Parliament including an assembly or a council at a devolved level of government;
“marginalized community” means –
(a) a community which, by reason of its relatively small population or
otherwise, has been unable to fully develop its internal structures or
resources sufficient to participate in the integrated social and economic life
of Kenya as a whole;
(b) a traditional community which, out of a need or desire to preserve its unique
culture and identity from assimilation, has remained outside the integrated
social and economic life of Kenya as a whole;
(c) an indigenous community that has retained and maintained a traditional
lifestyle and livelihood based on a hunter or gatherer economy; or
(d) pastoral persons and communities, whether they are –
(i) nomadic; or
(ii) a settled community which, because of its relative geographic
isolation, has experienced only marginal participation in the
integrated social and economic life of the Republic as a whole;
“marginalized group” means a group who, as a result of laws or practices before or after the
effective date, were or are disadvantaged by unfair discrimination on one or more prohibited
grounds set out in Article 36.
“older member of society” means a person of or above the age of sixty years;
“person” includes a company, association or body of persons corporate or unincorporate;
“political party” means an association of individuals organised for the purposes contemplated
in Article 111;
“power” includes a privilege, authority or discretion;
property” includes any vested or contingent right or interest in, or arising from, any –
(a) land, or permanent fixtures on, or improvements to, land;
(b) goods or personal property;
(c) intellectual property; or
(d) money, chooses in action or negotiable instruments;
“public officer” means any person holding or acting in an office in the Government or public
service, the emoluments for which are payable directly from the Consolidated Fund or directly
out of money provided by Parliament;
“public service” means the collectivity of all individuals, other than State officers, performing
a function within a State organ;
“remuneration and benefits” includes salaries, allowances and rights forming an individual’s
remuneration for office, including any pension, gratuity or other benefit payable on retirement;
“Republic” means the Republic of Kenya;
“State”, when used as a noun, means the collectivity of offices, organs and other entities
comprising the government of the Republic under this Constitution;
“State office” means any of the following offices –
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(a) President;
(b) Deputy President;
(c) member of the Cabinet;
(d) Deputy Minister;
(e) member of Parliament;
(f) member of the Judiciary;
(g) member of a constitutional Commission;
(h) member of an assembly, council or executive committee at a devolved level
of government;
(i) Attorney-General;
(j) Director of Public Prosecutions;
(k) Public Defender;
(l) Auditor-General;
(m) Controller of Budget;
(n) Principal Secretary;
(o) Secretary to the Cabinet;
(p) Chief of the Kenya Defence Forces; and
(q) commander of a service of the Kenya Defence Forces.
“State officer” means a person holding a State office established by this Constitution, or
established and designated as such by legislation;
“State organ” means a Commission, office, agency or other body established under this
Constitution and having a function within the Republic;
“subsidiary legislation” means a rule, regulation, by-law, proclamation or other similar law
made under the authority of legislation;
“Treasury” means the State organ referred to in Article 255(1);
“writing” includes printing, photography, lithography, typewriting, any other means of
representing or reproducing words in a visible form, and Braille; and
“youth” means the collectivity of all individuals in the Republic each of whom –
(a) has attained the age of eighteen years; and
(b) has not attained the age of thirty-five years.
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CHAPTER TWENTY-ONE
TRANSITIONAL AND CONSEQUENTIAL PROVISIONS
Consequential Legislation
308. (1) Where in this Constitution Parliament is required to enact legislation to govern a
particular matter, Parliament shall enact that legislation within the period specified in
the Sixth Schedule, commencing on the effective date.
(2) Where in this Constitution Parliament is required to enact legislation to govern a
particular matter within a specified time, but fails to do so, any person may petition
the High Court for a declaration on the matter.
(3) The High Court in determining a petition under clause (2) may –
(a) make a declaratory order on the matter; and
(b) issue an order directing the Speaker and the Attorney-General to take steps
to ensure that the legislation required to be enacted under clause (1), is
enacted, within the period specified in the order, and to report the progress
to the Chief Justice.
Transitional
309. The transitional and consequential provisions set out in the Seventh Schedule shall take effect
on the effective date.
Effective Date
310. This Constitution shall come into force on the date of assent by the President.
Repeal
311. The Constitution in force immediately before the effective date shall stand repealed on the
effective date.
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FIRST SCHEDULE
(Article 5(2))
REGIONS, DISTRICTS AND BOROUGHS
Region 1, consisting of the following districts –
Kwale
Mombasa
Taita Taveta
Kilifi
Lamu
Tana River
Malindi
Region 2, consisting of the following districts –
Makueni
Machakos
Kitui
Mwingi
Region 3, consisting of the following districts –
Meru Central
Meru South
Meru North
Tharaka
Region 4, consisting of the following districts –
Mbeere
Embu
Kirinyaga
Region 5, consisting of the following districts –
Isiolo
Marsabit
Moyale
Region 6, consisting of the following districts –
Garissa
Ijara
Mandera
Wajir
Region 7, consisting of the following districts –
Kajiado
Narok
Trans Mara
Kuria
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Region 8, consisting of the following districts –
Kisii Central
Gucha
Nyamira
Region 9, consisting of the following districts –
Teso
Bungoma
Busia
Lugari
Kakamega
Vihiga
Butere/Mumias
Region 10, consisting of the following districts –
Turkana
West Pokot
Marakwet
Trans Nzoia
Mt Elgon
Keiyo
Uasin Gishu
Nandi North
Nandi South
Region 11, consisting of the following districts –
Kericho
Bureti
Bomet
Baringo
Koibatek
Nakuru
Samburu
Laikipia
Region 12, consisting of the following districts –
Kisumu
Bondo
Nyando
Siaya
Suba
Rachuonyo
Homa Bay
Migori
Region 13, consisting of the following districts –
Kiambu
Thika
Murang’a
Maragua
Nyandarua
Nyeri
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Region 14 (Nairobi Metropolitan), consisting of the following boroughs –
Westlands
Kasarani
Lang’ata
Embakasi
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SECOND SCHEDULE
(Article 10)
NATIONAL SYMBOLS
(a) The National Flag
N ote: All dimensions given do not necessarily represent any particular measurement and are merely
proportional.
Description:
Three major strips of equal width coloured from top to bottom black, red and green and separated by narrow
white strips, with a symmetrical shield and white spears superimposed centrally.
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(b) The National Anthem
1 1
Ee Mungu nguvu yetu O God of all creation
Ilete baraka kwetu. Bless this our land and nation.
Haki iwe ngao na mlinzi Justice be our shield and defender
Natukae na undugu May we dwell in unity
Amani na uhuru Peace and liberty
Raha tupate na ustawi Plenty be found within our borders.
2 2
Amkeni ndugu zetu Let one and all arise
Tufanye sote bidii With hearts both strong and true.
Nasi tujitoe kwa nguvu Service be our earnest endeavour,
Nchi yetu ya Kenya, And our Homeland of Kenya
Tunayoipenda Heritage of splendour,
Tuwe tayari kuilinda. Firm may we stand to defend.
3 3
Natujenge taifa letu Let all with one accord
Ee, ndio wajibu wetu In common bond united,
Kenya istahili heshima Build this our nation together
Tuungane mikono And the glory of Kenya
Pamoja kazini The fruit of our labour
Kila siku tuwe na shukrani. Fill every heart with thanksgiving
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(c) The Coat of Arms
(b) The Public Seal
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THIRD SCHEDULE
(Article 95)
NATIONAL OATHS AND AFFIRMATIONS
OATH OR SOLEMN AFFIRMATION OF ALLEGIANCE OF THE PRESIDENT/ACTING
PRESIDENT AND THE VICE PRESIDENT
I, ……………. , in full realization of the high calling I assume as President/Acting President of the Republic of
Kenya, do swear/solemnly affirm that I will be faithful and bear true allegiance to the Republic of Kenya; that I
will obey, preserve, protect and defend the Constitution of Kenya, as by law established, and all other laws of
the Republic; and that I will protect and uphold the sovereignty, integrity and dignity of the people of Kenya. (In
the case of an oath: So help me God.)
OATH OR SOLEMN AFFIRMATION OF DUE EXECUTION OF OFFICE FOR THE PRESIDENT/ACTING
PRESIDENT
I, ……………… , swear/solemnly affirm that I will truly and diligently serve the people and the Republic of
Kenya in the office of the President/ Acting President of the Republic of Kenya; that I will diligently discharge
my duties and perform my functions in the Office of President/Acting President of the Republic of Kenya; and I
will do justice to all in accordance with the Constitution, as by law established, and the laws of Kenya, without
fear, favour, affection or ill-will. (In the case of an oath: So help me God.)
OATH OR SOLEMN AFFIRMATION OF DUE EXECUTION OF OFFICE FOR THE VICE
PRESIDENT
I ……………… , do swear/solemnly affirm that I will always truly and diligently serve the people and the
Republic of Kenya in the office of the Vice President of the Republic of Kenya; that I will diligently discharge
my duties and perform my functions in the said office, to the best of my judgment; that I will at all times, when
so required, faithfully and truly give my counsel and advice to the President of the Republic of Kenya; that I will
do justice to all without fear, favour, affection or ill-will; and that I will not directly or indirectly reveal such
matters as shall come to my knowledge in the discharge of my duties and committed to my secrecy. (In the case
of an oath: So help me God.)
OATH OR SOLEMN AFFIRMATION OF DUE EXECUTION OF OFFICE FOR THE PRIME
MINISTER/ACTING PRIME MINISTER
I,……………….. , swear/solemnly affirm that I will be faithful to the Republic of Kenya; that I will obey and
uphold the Constitution of Kenya and all other laws of the Republic of Kenya; that I will at all times well and
truly serve the people and Republic of Kenya; that I undertake to hold my office as Prime Minister/Acting Prime
Minister of the Republic of Kenya with honour and dignity; that I will be a true and faithful counsellor; that I
will not divulge directly or indirectly such matters as shall come to my knowledge in the discharge of my duties
and committed to my secrecy, except as may be required for the due discharge of my duties as Prime
Minister/Acting Prime Minister; and that I will perform the functions of my office conscientiously and to the
best of my ability. (In the case of an oath: So help me God.)
OATH OR SOLEMN AFFIRMATION OF DUE EXECUTION OF OFFICE FOR A
MINISTER/DEPUTY MINISTER
I, …………………, being appointed a Minister of Kenya, do swear/solemnly affirm that I will at all times be
faithful to the Republic of Kenya; that I will obey, respect and uphold the Constitution of Kenya and all other
laws of the Republic; that I will well and truly serve the people and the Republic of Kenya in the Office of a
Minister/ Deputy Minister; that I undertake to hold my office as Minister/ Deputy Minister with honour and
dignity; that I will be a true and faithful counsellor to the Prime Minister for the good management of the public
affairs of the Republic of Kenya; that I will not divulge directly or indirectly such matters as shall come to my
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knowledge in the discharge of my duties and committed to my secrecy except as may be required for the due
discharge of my duties as Minister/Deputy Minister; and that I will perform the functions of my office
conscientiously and to the best of my ability. (In the case of an oath: So help me God.).
OATH OR SOLEMN AFFIRMATION OF DUE EXECUTION OF OFFICE FOR A PRINCIPAL
SECRETARY
I ……………………, being called upon to exercise the functions of a Principal Secretary, do swear/solemnly
affirm that, except with the authority of the Prime Minister, I will not directly or indirectly reveal the nature or
contents of any business, proceedings or document of the Cabinet committed to my secrecy, except as may be
required for the due discharge of my duties as such Principal Secretary. (In the case of an oath: So help me
God.)
OATHS FOR THE CHIEF JUSTICE /PRESIDENT OF THE SUPREME COURT, JUDGES OF THE
SUPREME COURT, THE JUDGES OF THE COURT OF APPEAL AND JUDGES OF THE HIGH
COURT.
I ……………………, (The Chief Justice /President of the Supreme Court, a Judge Of The Supreme Court, a
Judge Of The Court Of Appeal, a Judge Of The High Court) do (swear in the name of the Almighty
God)/(solemnly affirm) to diligently serve the people and the Republic of Kenya and to impartially do Justice in
accordance with the Constitution as by law established, and the Laws and customs of the Republic, without any
fear, favour, bias, affection, ill-will, prejudice or any political, religious or other influence. In the exercise of the
judicial functions entrusted to me, I will at all times, and to the best of my knowledge and ability, protect,
defend, administer and defend the Constitution with a view to upholding the dignity and the respect for the
judiciary and the judicial system of Kenya and promoting fairness, independence, competence and integrity
within it. (So help me God.)
OATH /AFFIRMATION OF MEMBER OF PARLIAMENT (NATIONAL ASSEMBLY/ SENATE)
I……………………, having been elected a member of the National Assembly/Senate do swear (in the name of
the Almighty God) (solemnly affirm) that I will bear true faith and allegiance to the People and the Republic of
Kenya; that I will obey, respect, uphold, preserve, protect and defend the Constitution of the Republic of Kenya;
and that I will faithfully and conscientiously discharge the duties of a member of Parliament. (So help me God).
OATH FOR SPEAKER/DEPUTY SPEAKER OF THE NATIONAL ASSEMBLY /SENATE
I………………………, having been elected as Speaker/deputy speaker of the National Assembly/Senate do
swear (in the name of the Almighty God) (solemnly affirm) that I will bear true faith and allegiance to the
people and the Republic of Kenya; that I will faithfully and conscientiously discharge my duties as
speaker/deputy speaker of the National Assembly/Senate; that I will obey, respect, uphold, preserve, protect and
defend the Constitution of the Republic of Kenya; and that I will do right to all manner of persons in accordance
with the Constitution of Kenya and the laws and conventions of Parliament without fear or favour, affection or
ill will (So help me God).
123
FOURTH SCHEDULE
(Article 209(1))
DISTRIBUTION OF FUNCTIONS BETWEEN THE NATIONAL GOVERNMENT AND THE
DEVOLVED LEVELS OF GOVERNMENT
Part I – National Government
1. Foreign affairs, foreign policy and international trade.
2. In consultation with the regions and districts, the use of international waters and water
resources.
3. Immigration and citizenship.
4. The relationship between religion and state.
5. Language policy and the promotion of official and local languages.
6. National defence and the use of the national defence services.
7. National security, including –
(a) the setting of standards of recruitment, training of police and use of police services;
(b) criminal law; and
(c) correctional services.
8. Courts.
9. National economic policy and planning.
10. Monetary policy, currency, banking (including central banking), the incorporation and
regulation of banking, insurance and financial corporations.
11. National statistics and data on population, the economy and society generally.
12. Intellectual property rights.
13. Labour standards.
14. Consumer protection, including standards for social security and professional pension plans.
15. Education policy, standards, curricula, examinations and the granting of university charters.
16. National universities, tertiary educational institutions and other institutions of research and
higher learning and support for regional and district universities and other institutions of
research and higher learning.
17. Promotion of sports and sports education.
18. Transport and communications, including, in particular –
(a) road traffic;
(b) the construction and operation of national trunk roads;
(c) standards for the construction and maintenance of other roads by regions and
districts;
(d) railways;
(e) pipelines;
(f) marine navigation;
(g) civil aviation;
(h) space travel;
(i) postal services;
(j) telecommunications; and
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(k) radio and television broadcasting.
19. National public works.
20. Housing policy.
21. General principles of land planning and the co-ordination of planning by the regions and
districts.
22. Protection of the environment and natural resources with a view to establishing a durable and
sustainable system of development, including, in particular –
(a) fishing, hunting and gathering;
(b) protection of animals and wildlife;
(c) water protection, securing sufficient residual water, hydraulic engineering and the
safety of dams; and
(d) energy policy.
23. National referral health facilities.
24. Disaster management.
25. Ancient and historical monuments of national importance.
26. National elections.
Part II – Regional Governments
Except where this Constitution and legislation provide otherwise the powers and functions of the
regional level of government in all its functional areas shall, in consultation with the districts in the
region, be –
(a) the co-ordination and supervision of the districts in the course of their
implementation of the national and regional policies and standards;
(b) the formulation of regional policies;
(c) the setting of regional standards;
(d) regional planning;
(e) the monitoring and evaluation of implementation;
(f) the actual production, management and delivery of regional services;
(g) actual development, operation and maintenance of regional infrastructure and
services;
(h) the facilitation and harmonization of operations within the region; and
(i) capacity building and technical assistance to the districts.
Part III – District Governments
1 Agriculture, including –
(a) crop and animal husbandry;
(b) livestock sale yards;
(c) district abattoirs;
(d) plant and animal disease control; and
(e) fisheries.
2. District health services, including, in particular –
(a) district health facilities and pharmacies;
(b) ambulance services;
(c) promotion of primary health care;
125
(d) licensing and control of undertakings that sell food to the public;
(e) veterinary services (excluding regulation of the profession);
(f) cemeteries, funeral parlours and crematoria; and
(g) refuse removal, refuse dumps and solid waste disposal.
3. Control of air pollution, noise pollution, other public nuisances and outdoor advertising.
4. Cultural activities, public entertainment and public amenities, including –
(a) casinos and other forms of gambling;
(b) racing;
(c) liquor licensing;
(d) cinemas;
(e) video shows and hiring;
(f) libraries;
(g) museums;
(h) sports and cultural activities and facilities; and
(i) district parks, beaches and recreation facilities.
5. District transport, including –
(a) district roads;
(b) street lighting;
(c) traffic and parking;
(d) public road transport;
(e) ferries and harbours, excluding the regulation of international; and
(f) national shipping and matters related thereto.
6. Animal control and welfare, including –
(a) licensing of dogs; and
(b) facilities for the accommodation, care and burial of animals.
7. Trade development and regulation, including –
(a) markets;
(b) trade licences (excluding regulation of professions);
(c) fair trading practices;
(d) local tourism; and
(e) cooperative societies.
8. District planning and development, including –
(a) statistics;
(b) land survey and mapping;
(c) boundaries and fencing;
(d) housing; and
(e) electricity and gas reticulation and energy regulation.
9. Education at pre-primary, primary and secondary levels, special education, village
polytechnics, homecraft centres and childcare facilities.
10. Implementation of national government policies on natural resources and environmental
conservation, including –
(a) soil and water conservation; and
126
(b) forestry.
11. District public works and services, including –
(a) storm water management systems in built-up areas; and
(b) water and sanitation services.
12. Police and firefighting services and disaster management.
13. Control of drugs and pornography.
14. In consultation with the locational governments, ensuring and co-ordinating the participation
of communities and locations in governance at the local level and assisting communities and
locations to develop the administrative capacity for the effective exercise of the powers and
functions and participation in governance at the local level.
Part IV – Locational Governments
In consultation with district government, promotion of the self-determination and development of
communities in the location, by –
(a) initiating, planning, implementing and co-ordinating local community projects,
activities and services;
(b) applying, and co-ordinating the application of, funds available from any source for
the purposes of such projects, activities and services;
(c) implementing, within the locality, projects planned at the district, regional or national
levels of government;
(d) implementing, within the locality, laws of the nation, region or district; and
(e) generally fostering the integrated and participatory self-management of local affairs
by local communities.
127
FIFTH SCHEDULE
(Article 238)
TAXATION POWERS
Part I – Taxation Powers of the National Government
The national legislature may raise, by way of taxes, duties, levies, fees and charges –
(a) income tax;
(b) value added tax;
(c) corporation tax;
(d) customs duties and other duties on import and export goods;
(e) excise tax;
(f) general sales tax;
(g) national stamp duties;
(h) taxes from the national lottery and schemes of a similar nature;
(i) taxes on transport by road, air, rail and water;
(j) rents from houses and other property owned by the national level of
government;
(k) fees for licences issued by the national level of government;
(l) court fees, fines and forfeitures;
(m) exchange receipts;
(n) motor vehicle registration fees and driving licence fees;
(o) fees for government goods and services; and
(p) any other taxes authorised by national legislation.
Part II – Taxation Powers of Districts
A district council may raise, by way of taxes, duties, surcharges, fees, levies and charges –
(a) flat rate surcharges on the tax bases of any tax, levy or duty that is imposed
by national legislation other than the tax bases of corporate income tax,
value added tax and customs and excise;
(b) land use fees;
(c) agricultural tax;
(d) charges for the use of properties owned by the district government;
(e) rates on property and surcharges for services provided by or on behalf of the
district;
(f) cess on produce;
(g) licensing fees, including liquor licensing fees, market fees, hawking fees;
(h) business permit fees;
(i) entertainment tax;
(j) district roads maintenance charges;
(k) district hotels and restaurants tax;
(l) natural resource royalties tax;
(m) gate fees for game parks and reserves;
128
(n) transport tax;
(o) parking fees;
(p) such other taxes, duties, surcharges, fees, levies and charges as the district is
authorized from time to time by national legislation to impose; and
(q) any other taxes, duties, surcharges, fees, levies and charges that are not
exclusively assigned to the national level of government.
129
SIXTH SCHEDULE
(Article 308(1))
LEGISLATION TO BE ENACTED BY PARLIAMENT
CHAPTER AND TITLE OF ARTICLE ARTICLE TIME SPECIFICATION
CHAPTER FOUR
CITIZENSHIP
Citizenship by naturalization 18 Two years
Dual citizenship 20(3) Two years
Residence 22 Two years
Legislation on citizenship 24 Two years
CHAPTER SIX
BILL OF RIGHTS
Implementation of rights and freedoms 30(2) and (3) Three years
Authority of the Court to uphold and enforce
the Bill of Rights
32(2) Three years
Freedom from discrimination 36(4) Three years
Older members of society 38(2) and (3) Two years
Youth 39(2) Three years
Minorities and marginalized groups 43(2) Three years
Children 40(8) One year
Family 41(5) Three years
Persons with disabilities 42(3) Three years
Freedom of the media 50(5) One year
Access to information 51(4) Six months
Freedom of association 52(4) One year
Refugees and asylum 56(2) One year
Education 62(4) Three years
Consumer rights 69(3) Three years
Fair administration 70(3) Three years
CHAPTER SEVEN
LAND AND PROPERTY
Community land 80(5) Two years
Landholding by non-citizens 83(4) Six months
Legislation on land 86 Two years
CHAPTER EIGHT
ENVIRONMENT AND NATURAL RESOURCES
Utilization and development of natural
resources
91(2) Two years
CHAPTER NINE
LEADERSHIP AND INTEGRITY
Assumption of office 95 One year
Ethics and Integrity Commission 99(2)(f) One year
Legislation on leadership 100 One year
CHAPTER TEN
REPRESENTATION OF THE PEOPLE
Elections 102(1) Two years
Regulation of Political Parties 112 One year
130
CHAPTER AND TITLE OF ARTICLE ARTICLE TIME SPECIFICATION
Purposes of the Fund 114(5) One year
CHAPTER ELEVEN
THE LEGISLATURE
Membership of the Senate 122(2) One year
Membership of the National Assembly 123 One year
CHAPTER TWELVE
THE EXECUTIVE
Procedure at presidential election 158 (3)(b) One year
Presidential powers of mercy 166(2) One year
CHAPTER THIRTEEN
JUDICIAL AND LEGAL SYSTEM
Hierarchy and administration of the courts 184(4) Six months
Jurisdiction of the Supreme Court 187(1)(b) One year
The Court of Appeal 188 Two years
Jurisdiction of the Court of Appeal 189 Two years
The High Court 190 Two years
Jurisdiction of the High Court 191 Two years
Subordinate Courts 197(2) Two years
The Kadhi’s court 198(2) Three years
CHAPTER FOURTEEN
DEVOLVED GOVERNMENT
Co-operation between government at the
different levels
208(3) Three years
Regional governments 211(2) Three years
Election of mayor and deputy mayor of Nairobi 215 Three years
Election of district councillors 219(1)(c) Three years
Election of district governor and deputy district
governor
221(1) Three years
Composition and election of locational council 224 Two years
Provision to be made by Act of Parliament 230 Two years
CHAPTER FIFTEEN
PUBLIC FINANCE
Contingency Fund 244 One year
Borrowing by devolved governments 246 One year
Loan guarantees by governments 248 One year
Annual budgets of devolved governments 252 One year
Procurement of public goods and services 253(2) One year
Accounts and audit of public institutions 254(5) One year
Treasury control 255(1) One year
Auditor-General 257(6) One year
National Revenue Authority 258(3) One year
Commission on Revenue Allocation 259 One year
Economic and Social Council 262 One year
CHAPTER SIXTEEN
PUBLIC SERVICE
Powers and functions 265 (5) Two years
Staffing of devolved governments 266 Two years
Establishment of Kenya Correctional Service 270(5) Two years
131
CHAPTER AND TITLE OF ARTICLE ARTICLE TIME SPECIFICATION
CHAPTER SEVENTEEN
NATIONAL SECURITY
National security organs 273(6) One year
132
SEVENTH SCHEDULE
(Article 309)
TRANSITIONAL AND CONSEQUENTIAL PROVISIONS
Rights, duties and obligations of the State
1. All rights and obligations, however arising, of the Government or the Republic and
subsisting immediately before the effective date shall continue as rights and obligations
of the Government or the Republic under this Constitution.
Existing laws
2. All laws in force immediately before the effective date shall continue to be in force and
shall be construed with such modifications, adaptations, qualifications and exceptions as
may be necessary to bring them into conformity with this Constitution.
National Assembly
3. (1) The National Assembly existing immediately before the effective date shall
continue as the National Assembly for the purposes of this Constitution for its
unexpired term.
(2) The Assembly shall within six months of the effective date revise Standing
Orders in accordance with this Constitution.
Senate
4. (1) The first elections of the Senate shall take place at the first elections held under
this Constitution.
(2) Until the Senate has been elected under this Constitution, the functions of the
Senate shall be exercised by the National Assembly.
By-elections
5. A by-election held after the effective date shall be held in accordance with this
Constitution.
Local Authorities
6. (1) All local authorities established under the Local Government Act (Cap. 265)
existing immediately before the effective date shall continue to exist until
implementation of the new structure under Chapter Fourteen as prescribed by an
Act of Parliament.
(2) Parliament shall enact the legislation referred to in sub-section (1) within two
years of the effective date.
(3) All councillors of the local authorities specified under sub-section (1), shall
continue to be councillors after the effective date until elections are called in
accordance with the legislation referred to in sub-section (1).
(4) As at the effective date, the boundaries of a district specified in the First
Schedule the name of which corresponds to the name of a district existing
immediately before that date are the boundaries of the first-mentioned district.
(5) Pending the enactment of legislation under Article 5(3), locations existing
immediately before the effective date constitute the locations mentioned in that
clause, with boundaries as then in force.
133
Political parties
7. (1) A political party in existence immediately before the effective date, shall, within
twelve months of the enactment of legislation providing for the registration of
political parties, comply with the requirements for registration as a political
party.
(2) If on the expiry of the period of twelve months, a political party has not
complied with the requirements of sub-section (1), the political party shall
forthwith cease to exist as a political party and any person holding an elective
position on the basis of the sponsorship of that party shall continue to hold such
position but shall be deemed to be an independent member.
The Executive
8. (1) The persons occupying the offices of President and Vice-President immediately
before the effective date shall continue to serve as President and Deputy
President, respectively, in accordance with this Constitution until the first
elections held under this Constitution.
(2) A Prime Minister shall not be appointed under this Constitution until after the
first elections held under this Constitution.
(3) Until a Prime Minister is appointed under sub-section (2), the powers and
functions of the Prime Minister shall be exercised by the President.
(4) A person holding a post in the Cabinet immediately before the effective date
shall continue to hold that position under this Constitution.
Provincial Administration
9. (1) Upon the holding of the elections referred to in section 6 the system of
administration comprising Assistant Chiefs, Chiefs, District Officers, District
Commissioners and Provincial Commissioners commonly known as the
Provincial Administration shall stand dissolved and all public officers serving
under that system of administration shall report to the Public Service
Commission for re-deployment.
(2) On the effective date, all assets held by the National Government and situated in
the provinces, districts, divisions and locations, shall become public property.
(3) Until such time as district and regional governments are constituted all the assets
held by local authorities immediately before the effective date shall not be
transferred or otherwise disposed of without the written authority of the National
Government and any transfer without such authority shall be void.
Existing offices
10. (1) A person who immediately before the effective date, held or was acting in an
office established by the Constitution in force before the effective date, shall
continue to hold or act in that office as if appointed to such office under this
Constitution, and if required to do so under Chapter Nine, that person shall
within thirty days from the date of the appointment of the Ethics and Integrity
Commission, file with the Commission the documents and evidence so required.
(2) A person who immediately before the effective date held or was acting in a
public office established by any written law, so far as is consistent with this
Constitution, shall continue to hold or act in that office as if appointed to that
position under this Constitution, and if required to do so under Chapter Nine,
shall within thirty days from the date of the appointment of the Ethics and
Integrity Commission, file with the Commission the documents and evidence so
required.
134
(3) The provisions of this section shall not affect the powers conferred on any
person or authority under this Constitution to abolish offices or remove persons
from those offices.
(4) The process of appointment of persons to fill vacancies arising in consequence
of the coming into force of this Constitution shall begin on the effective date and
in accordance with the provisions of this Constitution.
(5) Where a person has vacated an office that the person held before the effective
date and that office is retained or established by or under this Constitution, the
person may, if qualified, again be appointed, elected, or otherwise selected to
hold that office in accordance with the provisions of this Constitution, and shall
within thirty days from the date of the appointment of the Ethics and Integrity
Commission, file with the Commission the documents and evidence required
under Chapter Nine.
Succession of institutions, offices, assets and liabilities
11. (1) If a provision of this Constitution has altered the name of an office or institution
existing immediately before the effective date the office or institution as known
by the new name shall be the legal successor of the first named office or
institution.
(2) All liabilities, property and other assets that immediately before the effective
date were incurred or vested in the Government or the Republic, as the case may
be, shall continue to be so incurred or vested after the effective date.
(3) For the purposes of this section, the Kenya Revenue Authority in existence
immediately before the effective date is continued in existence as the National
Revenue Authority referred to in Article 258.
Pensions, gratuities and other benefits
12. The law applicable to pensions, gratuities or personal emoluments in respect of holders of
constitutional offices shall be the either law or that was in force at the date on which
those benefits were granted, or any law in force at a later date that is not less favourable
to that person.
The Judiciary
13. (1) Subject to the provisions of this section, a Judge or any judicial officer who held
office immediately before the effective date shall continue to hold office as if
appointed to such office under this Constitution, but may opt to retire in
accordance with this Constitution.
(2) A Judge or the Chief Kadhi who, on the effective date has attained the age of
sixty years may retire and is entitled on retirement to the benefits that person
would have been entitled to at the date of the retirement.
(3) The option provided for in sub-section (1) shall be exercised within thirty days
of the effective date.
(4) The Judicial Service Commission shall receive and consider all formal
complaints pending on the effective date before the Police, the Advocates
Complaints Commission, the Disciplinary Committee of the Law Society of
Kenya or the Attorney-General, against Judges of the superior courts of record,
the Kadhis and magistrates of the subordinate courts.
(5) Where, upon consideration of a complaint under sub-section (4), the Judicial
Service Commission finds that the complaint has or may have merit, the
Commission shall require the person concerned to proceed on leave on full pay
pending the final determination of the complaint through the mechanisms
established by this Constitution.
135
(6) Where a Judge or the Chief Kadhi fails to exercise the option provided for under
sub-section (2) and is not affected by the operation of sub-sections (4) and (5),
that person shall within thirty days from the date of the appointment of the
Ethics and Integrity Commission, file with the Commission the documents and
evidence required under Chapter Nine.
(7) Where, after the receipt of the documents and evidence specified in sub-section
(6), the Ethics and Integrity Commission is not satisfied with the information
supplied by that person, it shall notify the Judicial Service Commission of that
finding.
(8) On receipt of the notification referred to in sub-section (7), the Judicial Service
Commission, shall in writing, inform a person referred to in sub-section (5) of
the finding of the Ethics and Integrity Commission under sub-section (7) and the
person shall from the date of the letter, be deemed to have vacated office
without loss of accumulated benefits.
(9) A judge of a superior court of record, a Kadhi or a magistrate is not entitled to
the benefits of office unless the person had completed the performance of the
functions of office and has accounted for the funds and property of the Judiciary
for which that person is responsible.
(10) A person who vacates office under sub-section (8) is not eligible to hold any
public office.
(11) The vacancies created by the operation of this section shall be filled in the
manner provided for under this Constitution.
Judicial Proceedings and pending matters
14. (1) Unless otherwise provided under this Constitution, all judicial proceedings
pending before any court or any proceedings before a tribunal shall continue to
be heard and shall be determined by the same or a corresponding court or
tribunal established under this Constitution.
(2) Unless otherwise provided under this Constitution, any matter or proceeding
that, immediately before the effective date, is pending before an existing
constitutional Commission, office or authority shall be continued before the
same or a corresponding commission, office or authority established under this
Constitution.
Corporal punishment
15. Every sentence of corporal punishment passed before the effective date is remitted and
shall not be carried out.
Constitutional Commissions
16. (1) The Ethics and Integrity Commission and the Commission on the
Implementation of the Constitution, shall be constituted within ninety days of
the effective date.
(2) Within nine months after the establishment of the Ethics and Integrity
Commission and the Commission on the Implementation of the Constitution the
following Commissions shall be appointed in the following order of priority –
(a) the Commission on Revenue Allocation;
(b) the Parliamentary Service Commission;
(c) the Judicial Service Commission;
(d) the Police Service Commission;
136
(e) the Public Service Commission;
(f) the Commission on Human Rights and Administrative Justice;
(g) the Gender Commission;
(h) the Electoral and Boundaries Commission ;
(i) the Salaries and Remuneration Commission;
(j) the National Land Commission;
(k) the Teachers Service Commission;
(l) the National Environment Commission;
(m) the Health Services Commission; and
(n) the National Commission on Culture;
Appointment of judges of Supreme Court
17. The process of appointment of the judges of the Supreme Court shall commence and be
finalized within ninety days of the appointment of the Judicial Service Commission.
Past human rights abuses
18. Parliament shall, within six months after the effective date, enact a law to empower the
Commission on Human Rights and Administrative Justice to –
(a) investigate all forms of human rights abuses by any person or group of
persons before the effective date;
(b) investigate the causes of civil strife, including massacres, ethnic clashes
and political assassinations, and identify those responsible; and
(c) make appropriate recommendations regarding –
(i) the prosecution of those responsible;
(ii) the award of compensation to victims;
(iii) reconciliation; and
(iv) reparation.
Ownership of land
19. Despite Article 83, on the effective date -
(a) a freehold interest or right in land shall not revert to the Republic where
that land has been used to secure a mortgage, charge or other
contractual obligation until such mortgage, charge or other contractual
obligation has been discharged or satisfied; and
(b) where a mortgage, charge or other contractual obligation referred to in
paragraph (a), has been discharged or satisfied, the freehold interest
reverts to the Republic, and the Registrar of Lands shall register the
freehold land as land held under leasehold title.
Civic education
20. From the effective date, the Government shall, through its relevant organs, conduct and
facilitate civic education on this Constitution to the people of Kenya, in the national
languages and in their local languages.
137
Amendment of Chapter Fifteen
21. The procedure for the amendment of this Constitution prescribed in Article 302(1), shall
apply to Chapter Fifteen for five years from the effective date.
Public debt
22. The Minister responsible for finance shall adopt and enforce measures to ensure that, as
far as possible, the accumulated public debt as at the effective date is brought into
compliance with Article 247(3) within ten years after the effective date.
Currency
23. Nothing in Article 261(3) affects the validity of coins and notes issued before the
effective date.

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