1 | P a g eAN ANALYSIS OF THE REPORT BY THE PRESIDENTIALTASKFORCE ON BUILDING BRIDGES TO UNITYADVISORY (“THE BBI REPORT”)By Prof. Tom Ojienda, SC (19th February, 2020)Prof. Ojienda, SC is an advocate of the High Court of Kenya with a distinguished law careerand vast experience in legal matters spanning over 25 years. He is one of the few Kenyanlawyers who have attained the distinguished professional grade of Senior Counsel in the legalfield. He holds a Doctor of Laws (LL.D.) degree from the University of South Africa, in Pretoria,South Africa, a Master of Laws (LL.M.) degree from King’s College London, in the UnitedKingdom, a Bachelor of Laws (LL.B.) degree from the University of Nairobi, and a PostgraduateDiploma in Law from the Kenya School of Law. He also holds a Diplôme d'études en langueFrançaise from Alliance Française de Paris. He is fluent in English, French and Kiswahili thusis able to grasp legal issues pertaining to various jurisdictions and represent clients fromdiverse jurisdictions and backgrounds.As a robust litigation counsel, Prof. Ojienda, SC, has successfully handled numerous landmarkcases at the Supreme Court of Kenya, on Constitutional Law, Land and Environment Law,Electoral Law, Commercial Law, Family Law, and other areas of law. He represents variousindividuals, State agencies, private entities, county governments and multinational agencies.He has represented these entities before Kenyan courts, from the subordinate courts, all theway to the Supreme Court of Kenya. Some of his landmark cases at the apex Court include,Independent Electoral and Boundaries Commission & 2 others v. Evans Kidero (Petition No. 20 of2014); Justus Kariuki Mate & another v. Hon. Martin Nyaga Wambora (Petition No. 32 of 2014);In the Matter of the National Land Commission [2015] eKLR, National Land Commission v.Attorney General & 5 others (Advisory Opinion Reference No. 2 of 2014); Speaker of the Senate& another v. Attorney-General & 4 others [2013] eKLR; Lemanken Aramat v. Harun MeitameiLempaka & 2 others [2014] eKLR; Cyprian Awiti& another v. Independent Electoral andBoundaries Commission & 2 others [2019] eKLR; Mohamed Abdi Mahamud v. Ahmed AbdullahiMohamad & 3 others; Ahmed Ali Muktar (Interested Party) [2019] eKLR; Martin Wanderi & 106others v. Engineers Registration Board & 10 others [2018] eKLR; Moi v. Rosanna Pluda [2017]eKLR; Town Council of Awendo v. Nelson O. Onyango & 13 others; Abdul Malik Mohamed & 178others (Interested Parties) [2019] eKLR, among many others.Prof. Ojienda, SC is a former chair of the Law Society of Kenya (LSK), former President of theEast Africa Law Society (EALS) and former Vice President and Financial Secretary of PanAfrican Lawyers Union (PALU). He is also the immediate former representative of LSK to theJudicial Service Commission (JSC). He was a Commissioner in the Truth, Justice, andReconciliation Commission of Kenya (TJRC). He chaired the Land Acquisition CompensationTribunal (LACT), was a member of the National Environment Tribunal, and consulted forthe Njonjo and Ndung’u Land Commissions and various tribunals in Kenya. Moreover, Prof.Ojienda, SC was also involved in the land policy formulation process which culminated in theNational Land Policy [Sessional Paper No. 3 of 2009].

Currently, Prof. Ojienda, SCis a Council Member of the International Bar Association, Memberof the Board of American Biographical Society, Member of the Council of Legal Education,Member of the Public Law Institute of Kenya, and Kenya Industrial Property Institute (KIPI). Heis also an Associate Professor of Public Law at Moi University, where has taught law for overten years teaching on various law courses, including Human Rights, Constitutional Law,Professional Ethics, Legal Systems and Methods, the Law of Succession, the Law of the Sea,Property Law, Proprietary Rights and Transactions, Gender and the Law, and Clinicals andConcentrations. He also taught and supervised a Master of Philosophy student at the School of2 | P a g eEnvironmental Studies at Moi University. Besides, he was involved in the establishment of theLegal Aid Clinic at Moi University and the Juvenile Legal Aid Project of the Rift Valley LawSociety.Prof. Ojienda, SC is an ardent scholar and has edited and published over 15 books and over 40articles on diverse areas of the law, peer reviewed articles, consulted for various agencies,including the World Bank, USAID, UNIFEM, and presented scholarly papers in many countriesacross the globe. The books he has published include, “Conveyancing: Theory and Practice”published by T.O. Ojienda and A.D.O. Rachier, Faculty of Law Moi University; “ConstitutionMaking and Democracy in Kenya” edited by T.O. Ojienda ISBN: 9966-9611-3-6; “The Dawn of aNew Era 2004” edited by Tom Ojienda, ISBN-9811-4-4; “A General Introduction to the New Lawof the Sea” published by T.O. Ojienda and Kindiki Kithure; “The Legal Profession andConstitutional Change in Kenya; Anti-Corruption and Good Governance in East Africa: LayingFoundations for Reform” edited by Tom O. Ojienda and published by Law Africa Publishing (K)Ltd, Co-op Trust Plaza, 1st Floor, ISBN.9966-7121-1-9, 221 pages; “Conveyancing Principlesand Practice” by Tom O. Ojienda and published by Law Africa Publishing (K) Ltd, Co-op TrustPlaza, 1st Floor, 521 pages; ‘Conveyancing Principles and Practice’ by Dr. Tom O. Ojienda andpublished by Law Africa Publishing (K) Ltd, Co-op Trust Plaza, 1st Floor (Revised edition);“Professional Ethics” by Prof. Tom Ojienda & Katarina Juma published by Law AfricaPublishing (K) Ltd, Co-op Trust Plaza, 1st Floor. (Revised Edition) 195 pages; “The Enforcementof Professional Ethics in Kenya” (with Prof. Cox), Amazon Publishers, 2014; “Constitutionalismand Democratic Governance in Africa” (with Prof Mbodenyi), pulp publishers, 2013; “MasteringLegal Research” published by Law Africa, 2013; “Professional Ethics, A Kenyan Perspective”published by Law Africa 2012; “Anti-Corruption and Good Governance in East Africa”published by Law Africa, 2007; and “Conveyancing Theory and Practice” published by LawAfrica, 2002.Prof. Ojienda, SC’s published articles include: “Sustainability and The Ivory Trade. Whither theAfrican Elephant?” published in the 2002 issue of the East African Law Review; “Pitfalls in theFight against Corruption in Kenya: Corruption or Inertia?” in “Anti-Corruption and GoodGovernance in East Africa: Laying Foundations for Reform” by T. O. Ojienda (eds) pages 95 –131; “Exploring New Horizons in the Discipline of Advocates, Towards a Review of the ExistingRegime of Law” published in “The Advocate; Learning Law by Doing Law: The TheoreticalUnderpinnings and Practical Implications of Clinical Legal Education in Kenya”; and “An

Inventory of Kenya’s Compliance with International Rights Obligations: A Case Study of theInternational Covenant on Civil and Political Rights” the East African Journal of Human Rightsand Democracy Vol. 1, Issue No. 1, September 2003 at page 91-104; “Sectoral Legal Aid inKenya: The Case of the Rift Valley Law Society Juvenile Legal Aid Project”, published in variousjournals including the Advocate, the Lawyer, and the Newcastle Law Bulletin; “SurrogateMotherhood and the Law in Kenya: A Comparative Analysis in a Kenya Perspective”;“Polygamous Marriages and Succession in Kenya: Whither “the other woman?”; “Reflections onthe Implementation of Clinical Legal Education in Moi University, Kenya” published in theInternational Journal of Clinical Education Edition No. 2, June 2002 at page 49-63; “Taking aBold Step Towards Reform: Justifying Calls for Continuing Legal Education and ProfessionalIndemnity” published in Law society of Kenya Publication (2003); “Terrorism: Justifying Terrorin Kenya?” published in The East African Lawyer, Issue No. 5 at pages 18-22; “Land Law andTenure Reform in Kenya: A Constitutional Framework for Securing Land Rights”; “ACommentary on Understanding the East African Court of Justice” published in the EastAfrican Lawyer, Issue No. 6 at pages 52-56; “Where Medicine Meets the Law: The Case ofHIV/AIDS Prevention and Control Bill 2003” published in The Advocate at page 36-40; “TheAdvocates Disciplinary Process-Rethinking the Role of the Law Society” published in TheLawyer, Issue No. 78 at pages 15-16; “Ramifications of a Customs Union for East Africa”published in The East African Lawyer, Issue No. 4 at pages 17-25; “Gender Question: CreatingAvenues to Promote Women Rights after the Defeat of the proposed Constitution” published inthe Moi University Journal Vol. 1 2006 No.1, pages 82–92; “Of Mare Liberum and the EverCreeping State Jurisdiction: Taking an Inventory of the Freedom of the Seas” published in the3 | P a g eA. INTRODUCTION27th August 2010 saw the promulgation of the Constitution of Kenya, 2010(hereinafter “the Constitution”).1 This was after a national referendumconducted on 4th August 2010 to repeal the Independence Constitution ofKenya, which saw 67% of Kenyan voters voting ‘Yes’ to the currentMoi University Journal Vol. 1 2006 No. 1, pages 105 – 131; “Legal and Ethical IssuesSurrounding HIV and AIDS: Recommending Viable Policy and Legislative Interventions”published in The East African Lawyer, Issue No. 12 at pages 19-24; “Implementing the NewPartnership for Africa’s Development (NEPAD): Evaluating the Efficiency of the African PeerReview Mechanism” published in the Kenya Law Review, 2007 Vol. 1, pages 81-119; “Protectionand Restitution for Survivors of Sexual and Gender Based Violence: A case for Kenya.” (with R.A. Ogwang and R. Aura) 90 Pages, ISSN:1812–1276; “Legal and Institutional Framework of theTJRC - Way Forward” published in the Law Society of Kenya Journal Vol. 6 2010 No. 1, pages61 – 95; “A Critical Look at the Land Question in the New Constitution” published in NairobiLaw Monthly, Vol. 1, Issue No. 1 of 2010 at pages 76 – 81; and a Book Chapter entitled “LandLaw in the New Dispensation” in a book edited by P.LO. Lumumba and Dr. MbondenyiMaurice.1Kenya Law, ‘The Constitution of Kenya, 2010’ <http://kenyalaw.org/kl/index.php?id=398>.TABLE OF CONTENTSA. INTRODUCTION.........................................................................................3B. THE PROCESS OF AMENDING THE CONSTITUTION……………………….……..5

I. The Constitutional Framework………………………………………….…………51. Constitutional Amendment by Referendum……………………….……..52. Constitutional Amendment by Parliamentary Initiative……………….73. Constitutional Amendment by Popular Initiative……………….……….8II. Public Participation in the Constitutional Amendment Process…………...9III. What Does the Court Say About Constitutional Amendments? -Titus Alila& 2 others (Suing on their own Behalf and as the Registered Officials ofthe Sumawe Youth Group) v. Attorney General & another [2019]eKLR.....................................................................................................10C. PROPOSED CHANGES UNDER THE BBI REPORT......................................13I. Pillar 1: Lack of National Ethos……………………………………….….........13II. Pillar 2: Responsibilities and Rights of Citizenship………………….………16III. Pillar 3: Ethnic Antagonism and Competition………………………..……....20IV. Pillar 4: Divisive Elections………………………………………………….……..22V. Pillar 5: Inclusivity……………………………………………………………..……33VI. Pillar 6: Shared Prosperity………………………………………….……….…….37VII. Pillar 7: Corruption………………………………………………………...……….41VIII. Pillar 8: Devolution……………………………………………………………...….45IX. Pillar 9: Safety and Security…………………………….…………………..……51X. Commissions and Cross-Cutting Issues……………………………….………54D. CONCLUSION………………………………………………………….……………………..574 | P a g eConstitution.2 The new Constitution signalled “the birth of the second republic”after almost twenty years of struggle and attempts to bring in a newConstitution that would herald the much needed change in our country at thetime.3 On 27th August 2020 (this year), the current Constitution will be tenyears old. By virtue of Article 89(2) of the Constitution, electoral boundariesare to be reviewed at intervals of not less than eight years and not more thantwelve years, a rough average of every ten years.4 As such, I can say confidentlythat the Constitution of Kenya, 2010 is ripe for amendment because aconstitution exists to serve the people and not the people to serve theconstitution. At this point in time, the Kenyan people are once again eager forchange, especially in our structure of government, towards our collectiveprosperity and unity, the safety and security of every Kenyan in equal measure,and ridding ourselves of corruption and its attendant evils, to mention but afew areas where rapid change beckons. Hence, the proposed changes in theBBI Report are timely and relevant at this point in time.The BBI Report (hereinafter “the Report”) by the Presidential Taskforce onBuilding Bridges to Unity Advisory, on “Building Bridges to a United Kenya:From a Nation of Blood Ties to a Nation of Ideals”, was handed to H.E.President Uhuru Kenyatta on 26th November, 2019, and thereafter launched at

the Bomas of Kenya on 27th November, 2019. I will analyse the Report per thenine core challenges that the Taskforce set to address, in line with the JointCommuniqué of H.E. President Uhuru Kenyatta and H.E. Raila Odinga of 9thMarch, 2018 on “Building Bridges to a New Kenyan Nation” (the result of thefamed “Handshake”). The nine core challenges addressed in the Report, andupon which the recommendations therein are founded, are: lack of a nationalethos; responsibilities and rights of citizenship; ethnic antagonism andcompetition; divisive elections; inclusivity; shared prosperity; corruption;devolution; and safety and security.However, it is imperative to remember that alongside the changes proposed inthe Report, the constitutional process for amending the constitution is equally2 See e.g., ‘Q & A: Kenya’s constitution referendum’ (BBC News, 26 July 2010)<https://www.bbc.com/news/world-africa-10729860>; ‘Kenya holds referendum as part ofpolitical peace deal’ (BBC News, 4 August 2010) <https://www.bbc.com/news/world-africa-10856761>; James Macharia and George Obulutsa, ‘Kenya votes “Yes” to new constitution’(Reuters, 5 August 2010) <https://www.reuters.com/article/us-kenya-referendum/kenyavotes-yes-to-new-constitution-idUSTRE6743G720100805>; ‘Kenyans back change toconstitution in referendum’ (BBC News, 5 August 2010); <https://www.bbc.com/news/worldafrica-10876635>; Xan Rice, ‘Kenya votes for new constitution’ (The Guardian, 5 August 2010)<https://www.theguardian.com/world/2010/aug/05/kenya-votes-for-new-constitution>.3 See e.g., Peter Greste, ‘Kenya’s new Constitution sparks hopes of rebirth’ (BBC News, 27August 2010) <https://www.bbc.com/news/world-africa-11103008>.4 Article 89(2) of the Constitution provides that; “The Independent Electoral and BoundariesCommission shall review the names and boundaries of constituencies at intervals of not less thaneight years and not more than twelve years, but any review shall be completed at least twelvemonths before a general election of members of Parliament.”5 | P a g eimportant if the proposed constitutional amendments are to see the light ofday. In that regard, the constitutional and legislative process for enacting theproposed amendments must be adhered to. Of equal significance is theprinciple of public participation enshrined in the Constitution, hence it iscrucial that there be an outreach to create public awareness on the Report.Public participation is of great impetus too because it allows for inclusivity inthe process of implementing the proposed amendments. Inclusivity in turn issignificant as it allows the populace to own the Report and the changesproposed therein, resulting in a smooth implementation process.That said, I will first endeavour to highlight the constitutional process ofamending the Constitution as embodied in the constitution itself, andthereafter proceed to analyse the proposed changes in the BBI Report.B. THE PROCESS OF AMENDING THE CONSTITUTIONAs much as the changes proposed by the Taskforce in the BBI Report seem

attractive to the ear, the implementation of the proposed amendments can onlyobtain the force of law and become a reality if the constitutional framework andprocess for amending the Constitution is followed strictly. The constitutionalframework for amending the Constitution is provided for under ChapterSixteen of the Constitution (Articles 255, 256 and 257).I. THE CONSTITUTIONAL FRAMEWORK1. Constitutional Amendment by ReferendumA referendum is “the right of the electorate to have a propositionsubmitted for their approval or rejection.”5 Chief Justice Edward White ofthe Supreme Court of the United States described a referendum as “areference to a popular vote, for approval or disapproval, of any lawpassed by the legislature, such reference to take place either as theresult of the action of the legislature itself or of a petition filed for thatpurpose by a specified number of voters.”6Under Article 255(1) of the Constitution, an amendment to the Constitutionmust be approved by a referendum if it relates to the following matters:(a) The supremacy of the Constitution;(b) The territory of Kenya;5Check Inn Lounge, Inc. v. Kozubowski, 518 NE 2d 442 – III: Illinois Appellate Court, 1st Dist.1987<https://scholar.google.ca/scholar_case?case=11418525423577208910&q=518+N.E.2d+442&hl=en&as_sdt=2,5>.6Pacific States Telephone & Telegraph Co. v. Oregon 223 US 118 (1912) para 134<https://scholar.google.ca/scholar_case?case=16351559639154476313&q=223+us+118&hl=en&as_sdt=2,5>.6 | P a g e(c) The sovereignty of the people;(d) The national values and principles of governance referred to inArticle10(2)(a) to (d);(e) The Bill of Rights;(f) The term of office of the President;(g) The independence of the Judiciary and the commissions and independentoffices to which Chapter Fifteen applies;(h) The functions of Parliament;(i) The objects, principles and structure of devolved government; or(j) The provisions of Chapter Sixteen of the Constitution on amendments tothe Constitution.In that regard, per Article 255(2) of the Constitution, a proposed amendmentto the Constitution under Article 255(1) of the Constitution shall beconsidered to have been approved by a referendum if:(a) At least twenty per cent of the registered voters in each of at leasthalf of the counties vote in the referendum; and(b) The amendment is supported by a simple majority of the citizensvoting in the referendum.

Regarding the procedure for the conduct of a referendum, a Bill to amend theConstitution in respect of the matters under Article 255(1) of theConstitution will go through the enactment process under Article 256 of theConstitution(if initiated in Parliament) or that under Article 257 of theConstitution (if initiated by popular initiative), as highlighted below.7 However,per Article 256(5) of the Constitution, for purposes of a referendum, thefollowing additional steps will be followed:8(a) The President will upon receiving the Bill passed by Parliament, but beforeassenting to the Bill, request the IEBC to conduct, within ninety days, anational referendum for approval of the Bill in accordance withArticle 255(2) of the Constitution above; and(b) Within thirty days after the chairperson of the IEBC has certifiedto the President that the Bill has been approved in accordance with7See Part V of the Elections Act, No. 24 of 2012, Sections 49 to 55, of the Elections Act,No. 24 of 2011 which entails further provisions on the procedure for the initiation of and theconduct of a referendum.8See Article 257(10) and (11) of the Constitution which calls for the modification of Article256(5) of the Constitution as pertains to a referendum on constitutional amendmentstouching on matters under Article 255(1) of the Constitution that have been originated bypopular initiative under Article 257 of the Constitution.7 | P a g eArticle 255(2) of the Constitution, the President shall assent to the Billand cause it to be published.Looking at the proposed amendments in the BBI Report, as you will learnshortly, a referendum is imperative regarding most of the recommendations, asthey concern various matters listed under Article 255(1) of the Constitution,such as the Bill of Rights, the functions of Parliament, and the constitutionalcommissions.Even so, not all constitutional amendments will require a referendum for themto become law. For matters not listed under Article 255(1) of theConstitution, their constitutional amendment will proceed as provided underArticle 255(3) of the Constitution which provides that the Constitution maybe amended:(a) By Parliament, in accordance with Article 256of the Constitution(Amendment by Parliamentary Initiative); or(b) By the people and Parliament, in accordance with Article 257 of theConstitution (Amendment by Popular Initiative).2. Constitutional Amendment by Parliamentary InitiativeThe procedure for constitutional amendment by parliamentary initiative perArticle 256 of the Constitution is as follows:i) Introduction of a Bill in Parliament - A Bill to amend the Constitutionmay be introduced in either House of Parliament (the National Assembly

or the Senate). The Bill may not address any other matter apart fromconsequential amendments to legislation arising from the Bill.ii) First reading - The Bill will go through the first reading in the Housewhere it is introduced.iii) Second reading - Ninety days after the first reading, the Bill will becalled for a second reading in each House.iv) Third Reading – The Bill will be called for a third reading in each House.v) Enactment of the Bill by Parliament – The Bill shall have been passedby Parliament when each House of Parliament has passed the Bill, inboth its second and third readings, by not less than two-thirds of all themembers of that House.vi) Parliament submits the enacted Bill to the President - AfterParliament passes a Bill to amend the Constitution, the Speakers of thetwo Houses of Parliament will jointly submit to the President: (a) the Bill,for assent and publication; and (b) a certificate that the Bill has been8 | P a g epassed by Parliament in accordance with Article 256 of theConstitution.vii) Presidential assent to and publication of the Bill - The President willassent to the Bill and cause it to be published within thirty days afterthe Bill is enacted by Parliament.3. Constitutional Amendment by Popular InitiativeThe procedure for constitutional amendment by popular initiative underArticle 257of the Constitution is as follows:i) Collection of signatures to support a popular initiative - Theamendment to the Constitution will be proposed by a popular initiative,in the form of a general suggestion or a formulated draft Bill, signedby at least one million registered voters.ii) Conversion of the popular initiative into a draft Bill - If the popularinitiative is in the form of a general suggestion, the promoters of thepopular initiative shall formulate it into a draft Bill.9iii) Delivery of the popular initiative and signatures to IEBC - Thepromoters of the popular initiative shall deliver the draft Bill and thesupporting signatures to the IEBC.iv) Verification of the signatures –upon delivery to the IEBC, the IEBCshall verify that the popular initiative is supported by at least one millionregistered voters.v) Submission of the draft Bill to the county assemblies - If the IEBC issatisfied that the popular initiative has been signed by at least onemillion registered voters, the IEBC shall submit the draft Bill to eachcounty assembly for consideration within three months after thedate it was submitted by the IEBC.vi) Relaying each county assembly’s approval of the draft Bill toParliament - If a county assembly approves the draft Bill within threemonths after the date it was submitted by the IEBC, the speaker of thecounty assembly shall deliver a copy of the draft Bill jointly to the

9 It is not clear whether the collection of signatures to support the popular initiative shouldonly proceed once the general suggestion has been converted into a draft Bill or can be donebased on a general suggestion to amend the Constitution before the promoters of the popularinitiative convert the same into a draft Bill. See Hon Kanini Kega v. Okoa Kenya Movement& 6 others, [2014] eKLR, High Court Petition No. 427 of 2014, paragraphs 103-105<http://kenyalaw.org/caselaw/cases/view/101466/> (the Court was confronted with theissue on whether the collection of signatures to support the popular initiative can commence inthe absence of a draft Bill on the proposed amendments to the constitution; basically, aninterpretation of the steps under Article 257(1), (2) and (3) of the Constitution leading to thereferendum).9 | P a g eSpeakers of the two Houses of Parliament, with a certificate that thecounty assembly has approved it.vii) Approval by a majority of county assemblies and introduction of thedraft Bill in Parliament - If a draft Bill has been approved by a majorityof the county assemblies (24 counties and above), it shall be introducedin Parliament without delay.viii) Enact of the Bill by Parliament - A Bill for a constitutional amendmentby popular initiative is passed by Parliament if supported by a majority ofthe members of each House.ix) Submission of the enacted Bill to the President for assent - IfParliament passes the Bill, it shall be submitted to the President forassent in accordance with Article 256(4) and (5) of the Constitution.x) Referendum - If either House of Parliament fails to pass the Bill, or theBill relates to a matter specified under Article 255(1) of theConstitution, the proposed amendment shall be submitted to the peoplein a referendum to be undertaken in accordance with Article 255(2)ofthe Constitution, already highlighted above, with any necessarymodifications.10II. PUBLIC PARTICIPATION IN THE CONSTITUTIONALAMENDMENT PROCESSAll the three ways of amending the Constitution entail the participation of thepublic:1. For a constitutional amendment concerning matters under Article255(1) of the Constitution, the people have to vote for or against theamendment in a referendum, hence public participation;112. For a constitutional amendment by parliamentary initiative, Parliamentis required to publicise any Bill to amend the Constitution, and facilitatepublic discussion about the Bill;12 and10 It is not clear when the draft Bill to amend the Constitution is to be submitted to areferendum as Articles 255(2) and 257(10) and (11) of the Constitution do not specify anytimeliness for holding the referendum. SeeHon Kanini Kega v. Okoa Kenya Movement & 6others, [2014] eKLR, High Court Petition No. 427 of 2014, paragraphs 108-110<http://kenyalaw.org/caselaw/cases/view/101466/> (The Court was equally called uponto address the issue as to the time at which the referendum should be held; the Applicant

therein purporting to advance an interpretation based on the spirit of the Constitution, frontedthe view that that the issues for a referendum may be prepared in advance but the actual voteshould be postponed to the next general election in order to prevent the country from being ina permanent election mode. Odunga J., though considering the Applicant’s perspective to beattractive, found the argument not to raise the issue to the level of a prima facie case, as theApplicants sought a conservatory order to restrain the IEBC from receiving any draft Bill toamend the Constitution and the supporting signatures thereof from the 1st to 4th Respondents.)11Article 255(2) of the Constitution.10 | P a g e3. For a constitutional amendment by popular initiative, publicparticipation is catered for: (i) during the collection of the one millionsignatures required to support the popular initiative;13 (ii) during theconsideration of the draft Bill by each county assemblies countrywide;14and (iii) in fulfilling the requirement that the Bill be subjected to apeople’s vote in a referendum where Parliament fails to enact the Bill intolaw or the Bill concerns a matter listed under Article 255(1) of theConstitution.15In essence, the participation of the public in the constitutional amendmentprocess is imperative, whether the Constitution is sought to be amendedthrough a referendum, or through parliamentary initiative, or through popularinitiative. Therefore, whatever method is adopted to amend the Constitution,the public has to be educated about the said amendments sought to be made,through civic education initiatives and by affording the public opportunity toparticipate in public debates and deliberations on the said proposedamendments to the Constitution. After all, Kenyans have to own theamendments if the eventual implementation of the same is to be consideredsuccessful.III. WHAT DOES THE COURT SAY ABOUT CONSTITUTIONALAMENDMENTS? - TITUS ALILA & 2 OTHERS (SUING ON THEIROWN BEHALF AND AS THE REGISTERED OFFICIALS OF THESUMAWE YOUTH GROUP) V. ATTORNEY GENERAL &ANOTHER16In the case of Titus Alila & 2 others (Suing on their own Behalf and as theRegistered Officials of the Sumawe Youth Group) v. Attorney General &another, the Petitioners sought the interpretation of Articles 255 and 256 ofthe Constitution regarding the distinction between amendments which mustbe effected through a referendum and those that do not require a referendum.The Petitioners expressed the view that the route of the referendum was “long,

tortuous and expensive” and if a referendum could be avoided for an “availablealternative route, which would guarantee value for money for the people ofKenya” the better.17In this case, the Petitioners were specifically seeking clarityon whether changes to the structure of the county and national governments(in terms of changes or reduction in size or offices) would require amendmentsto the Constitution to be by way of a referendum or not. The Petitioners argued12Article 256(2) of the Constitution.13Article 257(1) of the Constitution.14 Article 257(5) to (7) of the Constitution.15Article 257(10) and (11) of the Constitution.16[2019] eKLR, High Court Petition No. 22 of 2018<http://kenyalaw.org/caselaw/cases/view/182039/>.17 Paragraph 3 of the decision.11 | P a g ethat proposed changes to the structure of government must go through areferendum if they are to become law.18The Court was of the view that the proposed amendments in questionconcerned the “objects, principles, and structure of devolved government” whichper Article 255(1)(i) of the Constitution could only be amended by way of areferendum despite the rigours and expenses that come with the conduct ofreferenda. In interpreting and applying the said Article 255(1) of theConstitution to the case at hand, the Court stated as follows, at paragraphs47 to 52 of the decision:47. To my mind, that provision is very clear, about the proposedamendments to the Constitution which must be approved by areferendum.48. One such amendment is the objects, principles and structure ofdevolved government.49. Thus, whether or not the route of a referendum was long, tortuousand expensive, the people of Kenya decided that in respect to thespecified amendments, a referendum is compulsory.50. The distinction between the amendments to the Constitution whichmay be made without a referendum and those that can only be madethrough a referendum has been made by the Constitution itself.Therefore, there is no interpretation is required in that respect.51. In my understanding issues pertaining to the composition of “seatsand offices” of the government are so intertwined with what constitutesthe “structure” of the devolved government that they fall within the armbit of Articles 255 (1) of the Constitution.52. Therefore whether or not referenda are long, tortuous and expensive,the same must be held if a proposed amendment falls under Article 255(1) of the Constitution.In their Petition, the Petitioners pointed out that there was need for the

establishment of a proper legislative framework for holding referenda and for aproper framing of referenda questions;19 in like manner as the legal frameworkon the conduct of elections which has numerous laws and regulations on howelections are to be carried out.20 However, the Court found that theConstitution has already set in place a proper legislative framework for holdingreferenda. The Court stated thus at paragraphs 53 to 60 and 65 to 67 of thedecision:54. Pursuant to Article 256 (5) (a) of the Constitution, it is theIndependent Electoral and Boundaries Commission which has the18 Paragraph 7 of the decision.19 Paragraphs 9 to 12 of the decision.20 Paragraphs 17 and 18 of the decision.12 | P a g emandate to conduct a referendum for the approval of a proposedamendment that falls under Article 255 (1).55. And pursuant to Article 257 (3) of the Constitution, the promoters of aPopular Initiative, (signed by at least one Million registered voters), onceagain it is the IEBC which is mandated to undertake the steps necessaryto conduct a referendum.56. Furthermore, there are explicit provisions in the Elections Act whichgovern the conduct of a referendum in Kenya.57. Section 49 of the Elections Act gives to the IEBC the mandate toframe the question or questions to be determined through a referendum.58. In the exercise of the said mandate it is definitely open to the IEBC todetermine whether or not they would have a “nonseparable preference”;or an “Issue by Issue” question; or “sequential voting.”59. This court cannot purport to give to the IEBC directions on exactlyhow to carry out its responsibility in that respect.60. If the court were to give generalized directions to the IEBC, when ithad not been shown that the Commission had strayed from the pathestablished by law, that would constitute a blatant interference by theJudiciary in the Constitutional mandate of an Independent Commission.(...)65. If the Petitioners or any other person holds the view that there was aneed to have either more detailed laws or more regulations to govern areferendum, it is open to them to lobby the legislative arm of governmentto do the needful.66. The legislature, in its wisdom, has already enacted statutes toaddress the issue of a referendum, when it is required for the purposes ofamending the Constitution.67. It is not the function of the Judiciary to determine in general terms,whether or not the said statutes were inadequate or inelegant.Nonetheless, despite acknowledging the mandate of the IEBC in framing thereferenda questions,21 the court was in favour of an ‘issue by issue’ framingof referenda questions or ‘sequential voting’ on specific issues, as opposed

to an ‘omnibus’ or ‘composite’ referendum question or a Yes or No ‘nonseparablepreference” referendum. Basically, the court was against thelumping of constitutional amendments in a single referendum vote. The Courtexpressed itself thus, at paragraphs 61 to 63 of the decision, as follows:61. Meanwhile, I note that it may be logical to have a referendum whichaddresses one specific issue, rather than an omnibus question. Thatcould result in the people of Kenya having a clear picture of the exactissue they were being called to vote upon.21 Paragraph 64 of the decision.13 | P a g e62. Such a process would avoid a situation in which a voter wascompelled to throw out the baby with the bath water, simply because theomnibus issue contained one or more objectionable matters, which hadbeen lumped together with good amendments.63. Nonetheless, it must be acknowledged that the process of conductingeither Issue by Issue referenda or Sequential Voting would most probablybe more expensive compared to instances where there was one compositequestion.22In the end, the court dismissed the Petition more so because of its speculativenature that called the court to give anticipatory orders on a ‘referendum’ thathad not even kicked off per the procedures set out under Articles 255 to 256of the Constitution.23C. PROPOSED CHANGES UNDER THE BBI REPORTAs already stated above, the proposed changes under the BBI Report arefounded on the nine core challenges that the Taskforce was tasked to addressin their report. The nine core challenges are thus the nine pillars upon whichthe Report stands and they are: (1) lack of a national ethos; (2) responsibilitiesand rights of citizenship; (3) ethnic antagonism and competition; (4) divisiveelections; (5) inclusivity; (6) shared prosperity; (7) corruption; (8) devolution;and (9) safety and security. I will analyse the proposed changes in the Report inthat order.I. PILLAR 1: LACK OF NATIONAL ETHOSPer the Report, Kenyans desire a national ethos of cultural pride that is bothconservative of our traditions and dynamic, in order to reconcile our traditionswith the changing world around us, mostly because of urbanisation.24 Thenational ethos desired for entails the development and nurturing of ethical andhonourable Kenyan people in a country that embraces and rewards hard work,

honesty, respectful behaviour, and the integrity of its people. Thus, to build thenational ethos we will need to draw strength from a recognition of ourtraditional cultural brotherhood as Kenyans, where we consider every Kenyan22See Article 201(d) of the Constitution which calls for the prudent and responsible use ofpublic money.23 See paragraphs 39 to 45 and 79 to 81 of the decision. See also Hon Kanini Kega v. OkoaKenya Movement & 6 others, [2014] eKLR, High Court Petition No. 427 of 2014,paragraph 122<http://kenyalaw.org/caselaw/cases/view/101466/> (The Court was reluctantto grant conservatory orders to the Applicant to restrain the IEBC from receiving any draft Billand signatures in support thereof by the 1st to 4th Respondents in order to set off the process ofamending the Constitution by popular initiative under Article 257 of the Constitutionbecause of the unknown timeliness surrounding the supposedly looming referendum).24 Paragraph 25 of the Report.14 | P a g eand the collectivity of the Kenyan people to be worthy of our commitment andownership.25This calls for conversations and initiatives that innovatively combine ourdiverse traditional African cultural values with the modern Kenyan identitycomprising young, dynamic and urbanising cultures in the country.26 Thestarting point for building the desired national ethos is the family and thecommunity, through the formalisation of rites of passage to include bothgenders, and incorporating national values and citizen rights andresponsibilities into them; together with “initiatives that embrace the positivecultures, beliefs and ideals of Kenya’s diverse communities and facilitated bycivil society, the private sector, and State institutions”. The national ethos willthus be embedded in the formal education system (from the earliest age, andwith the aim of them lasting a lifetime), religious and cultural institutions, themedia, and the Kenyan arts scene.27The Taskforce has recommended:1. A national consultative conference of Kenyans of every age, class,ethnicity, belief, and philosophy with the single aim to produce a visionof a unique Kenyan civilisation 100 years from now; 282. The Kenya National Archives and Documentation Service be renamed theOfficial Historian and National Archives Service, which willcollaborate with libraries, universities, museums and individualhistorians, to research, analyse and present a thorough and definitiveKenyan history to Kenyans and the world.29 The Official Historian andNational Archives Service will be led by an established and highlyregarded scholar of African history or a world-class expert on libraryscience or curating; together with a board with representation from the

Ministries of Heritage and Education, domestic and foreign universities,domestic and foreign museums of history and heritage, curators, artists,citizens, and elders. The institution will be staffed with a working staff ofprofessional historians, librarians, curators, and professionals from otherrelevant fields of expertise such as philosophy, anthropology, theology,politics, and the sciences. The work of the institution will be connected tothe mission of the National Museums, publicly funded cultural centres,the Ministry of Education and all public bodies undertaking curriculumdevelopment, training and education of Kenyans, and will be shaped in amanner presentable and understandable by all Kenyans, particularlystudents and young people.25 Paragraph 26 of the Report.26 Paragraph 27 of the Report.27ibid.28 Paragraph 31 of the Report.29 Paragraph 32 of the Report.15 | P a g e3. The President to commission an Official and Inclusive History ofKenya, inclusive of every community in Kenya, going back 1000 yearsand whose production will be led by an Office of the Historian resident inthe National Archives.30 The Official History of Kenya will provide: anaccurate and definitive account of the settlement in Kenya by the presentinhabitants; the political, economic, and cultural histories of all ethnicgroups in Kenya; the role of women throughout Kenya’s history; anaccount of the international slave trade and colonialism; the anti-colonialstruggles; the post-colonial history of every part of the country; andcontemporary histories including those of urban areas and newly formedcommunities in Kenya.314. Strengthening the Ministry of Culture and Heritage to build andpromote cultural policies that are linked to the Counties’ promotion ofcultural activities and to enable the Ministry to document, protect, andpromote ancient and historical monuments of national importance.5. Empower County Governments to be able to discharge theirConstitutional duty, according to Schedule 4 of the Constitution, topromote cultural activities and implement the Protection of TraditionalKnowledge and Cultural Expressions Act 2016;6. Replace Boxing Day on 26th December with a National Culture Day forcelebrating culture and learning about other Kenyans’ cultures;7. Link Community Elders to formal mediation processes recognised bythe legal system through training and certification opportunities, andensure they are well connected with judicial and Government institutionsnationwide;8. Provide State support to officially recognised living national heroeswho are vulnerable or destitute;9. The National Government to work with private sector associations todevelop and launch a National Volunteers Network that identifies theneed for volunteers and gives formal certification for the work done;32

10. The incorporation of a compulsory curriculum in Kenya’s formaleducation system to instil a sense of national ethos on Kenyanlearners from an early age.33 The national ethos will be rooted in ethics,morals, and integrity and no one will be able to graduate without havingcompleted these courses;30ibid.31ibid.32 Page 9 and Paragraph 34 of the Report.33 Paragraph 34 of the Report.16 | P a g e11. The formation of an Ethics Commission to sit under the Office of thePresident to: keep track of and support the diverse efforts to develop,build and entrench a new national ethos; advise the President on ethicalstandards across the whole of public life in Kenya; monitor and report tothe public on the standards of conduct of all public office holders;undertake annual integrity, ethics and efficiency surveys of allGovernment entities, and the perceptions of Kenyans, and then publicisethe results; and strengthen the linking of cultural systems of ethics withKenya's constitutional values;3412. The Ethics and Anti-Corruption Commission’s (EACC) role be limitedto stopping economic crimes and the Commission be given constitutionalprotection as a Chapter 15 Commission,35 while its ethics mandate beredirected to the Ethics Commission to be established under the Officeof the President.13. The National Cohesion and Integration Commission (NCIC) and itsmandate be subsumed in the Ethics Commission;36 and14. Development and implementation of the enforcement mechanismsfor the Leadership and Integrity Act that will capture and act onbreaches to our national values and the Constitution, such as bullying,misleading the public, discrimination, and demeaning public office.37II. PILLAR 2: RESPONSIBILITIES AND RIGHTS OF CITIZENSHIPThe Taskforce has emphasized the need for Kenyans to embrace theresponsibilities and duties of citizens in nation building rather than merelyfocusing on what the nation can do for the citizenry. As Kenyans, we haveresponsibilities to other individuals, our families, communities andnation. Yet most Kenyans are unaware of their responsibility to the nation,mostly because of a lack of sustained civic education, and this hashampered our national sense of responsibility to the public good.38 However,this seems contrary to our traditional African values, especially the pre-colonial34 Paragraph 35 of the Report.35 Per Article 79 of the Constitution, the EACC already has the status of a Chapter 15Commission. Article 79 of the Constitution provides that: “Parliament shall enact legislationto establish an independent ethics and anti-corruption commission, which shall be and have thestatus and powers of a commission under Chapter Fifteen, for purposes of ensuring compliance

with, and enforcement of, the provisions of this Chapter.” The EACC is then established as anindependent commission under Section 3 of the Ethics and Anti-Corruption CommissionAct, No. 22 of 2011 pursuant to Article 79 of the Constitution, to ensure compliance withand enforcement of the provisions of Chapter Six of the Constitution on leadership andintegrity.36 NCIC was established under Section 15 of the National Cohesion and Integration Act,2008 and is not one of the independent commissions under Chapter 15 of the Constitution.37 Paragraph 37 of the Report.38 Paragraph 41 of the Report.17 | P a g eAfrican society, where taking up and embracing responsibilities and duties wasa mark of adulthood, belongingness and citizenship.39According to the Taskforce, Kenyans embracing their responsibilities and rightsof citizenship will be helpful in developing, engraining and implementing thenational ethos developed under pillar 1 above.40 The Taskforce has thusidentified some of the responsibilities and rights of individual Kenyansunder the Constitution, which include: payment of taxes; politicalparticipation; electoral conduct; public participation in legislation,policymaking and public financing; and the responsibility to hold publicinstitutions and offices accountable.41 On the other hand, theresponsibilities of private institutions, as corporate citizens, entail: thepromotion of the rights of employees; engagement in corporate socialresponsibility; honouring their contractual obligations; preventing thefacilitation of corruption; and ensuring their employees enjoy theiremployment rights.42The Taskforce has thus recommended that:1. The duties articulated in the African Charter on Human and Peoples’Rights, 1981 (Banjul Charter) should be included in civics curriculumsat all stages of education in Kenya, for purposes of civic training onresponsibilities of Kenyan citizens;4339 Paragraph 43 of the Report.40 Paragraph 38 of the Report.41Paragraph 50 of the Report.42 Paragraph 51 of the Report.43 Paragraph 58 of the Report. Chapter II (Articles 27 to 29) of Part I of the African (Banjul)Charter on Human and People’s Rights, 1981 (Adopted 27 June 1981, OAU Doc.CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986) provides forthe duties of individuals and stipulates as follows:Article 271. Every individual shall have duties towards his family and society, the State and otherlegally recognized communities and the international community.2. The rights and freedoms of each individual shall be exercised with due regard to therights of others, collective security, morality and common interest.Article 28Every individual shall have the duty to respect and consider his fellow beings withoutdiscrimination, and to maintain relations aimed at promoting, safeguarding and reinforcingmutual respect and tolerance.Article 29

The individual shall also have the duty:1. To preserve the harmonious development of the family and to work for the cohesion andrespect of the family; to respect his parents at all times, to maintain them in case of need;2. To serve his national community by placing his physical and intellectual abilities at itsservice;3. Not to compromise the security of the State whose national or resident he is;18 | P a g e2. A Kenyan Charter of Citizen Responsibilities inspired by the KenyanNational Anthem and National Values, and that includes a Patriot’sPledge to the Nation and the Constitution of Kenya (for schoolsworkplaces, and official national and public events);443. Strong whistleblower protections and responsive and accessiblecommunication channels, manned by reliable and trustworthy personnelto enable citizens to be able to whistleblower report crime.454. To preserve and strengthen social and national solidarity, particularly when the latter isthreatened;5. To preserve and strengthen the national independence and the territorial integrity of hiscountry and to contribute to its defense in accordance with the law;6. To work to the best of his abilities and competence, and to pay taxes imposed by law inthe interest of the society;7. To preserve and strengthen positive African cultural values in his relations with othermembers of the society, in the spirit of tolerance, dialogue and consultation and, in general,to contribute to the promotion of the moral well being of society;8. To contribute to the best of his abilities, at all times and at all levels, to the promotion andachievement of African unity.44Kenya will not be alone in this regard as other countries already have similar charters inplace. For example, France already passed on 16 June, 2011 a charter which lists the rightsand duties of the French citizen, sets out the principles, values and symbols of the FrenchRepublic, enjoins all citizens to participate in the defense and cohesion of the nation, andprovides that everyone has the duty to contribute, based on their financial means, to theexpenses of the nation, by paying direct taxes, indirect taxes, or social contributions. Thecharter further provides that “In becoming French, you can no longer reclaim anothernationality while on French territory.” https://www.loc.gov/law/foreign-news/article/francecharter-listing-the-rights-and-duties-of-the-citizen/>. See also The Government of Canada,“Discover Canada: Rights and Responsibilities of Citizenship”<https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publicationsmanuals/discover-canada/read-online/rights-resonsibilities-citizenship.html>, for the rightsand responsibilities of Canadian Citizens; The City of Montreal Canada equally has in place theMontréal Charter of Rights and Responsibilities which has been in force since 1st January,2006 and which aims for inclusive citizenship by emphasizing the individual rights ofMontrealers and theirs duties to each other and the city.<http://ville.montreal.qc.ca/portal/page?_pageid=3036%2C3377687&_dad=portal&_schema=PORTAL>;<https://ville.montreal.qc.ca/pls/portal/docs/page/charte_mtl_fr/media/documents/charte_montrealaise_english.pdf>.45 Paragraph 53 of the Report. See also Purity Mumbua & Peter Achol, “Whistle Blowers ShouldBe Protected” (Kenya News Agency, 15 June 2019) <https://www.kenyanews.go.ke/whistleblowers-should-be-protected-khrc-says/>; Jacob Ng’etich, “Ruling on Githongo pushes the bar

on whistle blowing” (Standard Digital, 21 May 2019)<https://www.standardmedia.co.ke/article/2001326509/ruling-on-githongo-pushes-the-baron-whistleblowing>; OECD, “Committing to Effective Whistleblower Protection; Highlights”<http://www.oecd.org/corruption/anti-bribery/Committing-to-Effective-Whistleblower-Protection-Highlights.pdf>; and Transparency International Kenya, “Comprehensive legislationon whistleblower protection in Kenya”, Policy Brief 1, July 2015 <https://tikenya.org/wpcontent/uploads/2017/06/policy-brief-no-1-2015-comprehensive-legislation-onwhistleblower-protection-in-kenya-1.pdf>.19 | P a g e4. Prioritisation of civic education in Government policies andinitiatives, both nationally and in Counties, in order to ensurecontinuous and widespread civic education on rights andresponsibilities.46 This calls for the use of innovative methods of civiceducation, such as barazas, as opposed to the typical workshop model.5. Provision of citizenship education on rights and responsibilities atall stages of education through to the undergraduate level.476. Incorporating in the Ministerial Code the principle that all CabinetMinisters should use the public facilities and services they governfor their own personal and family needs.48 For example, the EducationMinister should send his or her children to public schools while theHealth Minister should use public healthcare, and so on. The principleis to be replicated in the County Executives Committees in theCounties too.7. Putting in place an inter-ministerial Taskforce to develop a genericand simple parenting curriculum to educate parents on how to raisehealthy and responsible children, and make the curriculum availableto religious and cultural institutions, health centres, and sub-chiefs andchiefs for the widest possible dissemination.498. Every public institution, non-governmental organisation, andcompany to develop an integrity and ethics strategy which shouldinclude training and safe ways to report violations of the law, and makeit part of evaluating departments and managers.50 This is in a bid toentrench ethics awareness, training and accountability in the workplace.9. Kenyans between the ages of 18 and 26 to voluntarily undertake sixmonths of national service as a means of developing personalresponsibility through service to others.51 In that regard, a nationalvolunteer network is to be put in place to allow efforts that needvolunteers to sign on and be connected to those who want to serve, andoffer certification of completed volunteering placements. Makingvolunteering and service a requirement when applying for publicservice jobs should also be considered.10. The Taskforce has isolated the plight of dual citizens, as the Taskforcebelieves that Kenyan holders of dual citizenship should be equal citizens,46 Paragraph 53 of the Report.47 Paragraph 53 of the Report.

48 Paragraph 54 of the Report.49 Paragraph 55 of the Report.50 Paragraph 56 of the Report.51 Paragraph 57 of the Report.20 | P a g ea human right protected by the Constitution.52 The Taskforce thusrecommends unrestricted public service engagement by Kenyanswho hold dual citizenship (depending on their character and trackrecord and not merely being presumed to have split loyalties thatcompromise their integrity or patriotism to Kenya), except for Stateservice in the position of the Commander-in-Chief of the Defenceforces, members of the defence forces, and membership in theDefence Council.53III. PILLAR 3: ETHNIC ANTAGONISM AND COMPETITIONKenya is made up of multiple linguistic groups and ethnicities, coupled withcompetition for national resources, recognition and power along those linguisticand ethnic lines.54 The result is ethnic antagonism and competition which theTaskforce recognizes are a major threat to the country’s success andcontinuity.For us to escape ethnicised political competition, the Taskforce recommends:1. Individual Kenyans be educated, exposed, and incentivised to respectethnic and religious diversity through the following ways: (i) Schoolcurriculums to comprise compulsory components on history, culturaldiversity, knowledge of the major religions, including traditional ones,and the relationship between the Constitution and our cultures andreligions; (ii) Publicly-funded secondary boarding schools to haverepresentation from different Counties amounting to at least 50% of thestudent body; (iii) the National Museums of Kenya to be aligned to themission of incentivizing Kenyans on ethnic and religious diversity; and(iv) promote and support inclusive cultural centres in every County.552. We do away with the winner-take-all model for the Presidency; amodel adopted from the colonial system of governance and which pits usagainst each other along our cultural and social differences withoutallowing for the traditional African consensus-led model that aims for52Article 16 of the Constitution in providing for dual citizenship stipulates that, “A citizen bybirth does not lose citizenship by acquiring the citizenship of another country.”53See page 9 of the Report.54 Paragraphs 59 and 60 of the Report. See alsoProf. Tom OdhiamboOjienda, SC, ‘Submissionson the Joint Communiqué by H.E. President Uhuru Kenyatta and H.E. RailaOdinga:Restructuring the Judiciary, the Executive and State Offices’, pages 24-25, submitted to theBuilding Bridges Initiative Taskforce on 23rd July 2019<https://www.proftomojiendaandassociates.com/download/submissions-building-bridgesinitiative_prof-tom-odhiambo-ojienda-sc_23-july-2019/>; and Kenya Human RightsCommission, ‘Ethnicity and Politicization in Kenya’ (May 2018 Edition)<https://www.khrc.or.ke/publications/183-ethnicity-and-politicization-in-kenya/file.html>.55 Paragraph 65 of the Bill.

21 | P a g esettlement of cultural and social differences.56 Instead, we should opt fora more consociational model that works best for ethnically dividedsocieties by allowing for power-sharing between individuals fromdifferent social groups comprising the society;573. The Executive to reflect the ‘Face of Kenya’ in a way that inclusivelyreflects the political will of Kenyans rather than merely makingappointments to public posts based on ethnicity.584. A Federated East African Community. Accelerate integration withour neighbouring countries and achieve the political federation thatis the ultimate objective of the East African Community, per theEast African Community Treaty which is already part of our laws andGovernment.59 The Taskforce believes that deeper regional integrationwill change the ethnic calculus of Kenya’s politics as the presentethnic politics is swallowed by much larger populations so that any56 Paragraph 61-62 of the Report.57 Paragraph 66 of the Report. See also, Thomas O. Sargentich, ‘The Presidential andParliamentary Models of National Government’ (1993) 8(1) American University InternationalLaw Review, 579, 582-583 and 591-592<https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1870&context=auilr>(The author espouses the view that the presidential and parliamentary models of governmentdo not necessarily exist in the same way in every country that claims to have in place either ofthe two, and advocates that each country should look beyond constitutional structure anddevelop its own variation of either models of government in a way that suits its circumstances,such as the nation’s political culture, party system and electoral arrangement; he states inthat regard that, “[a] nation's history, traditions, social conditions, and political institutions, suchas parties, exert a powerful influence on the course of development.” The author also makesreference to Maurice Duverger’s ‘semi-presidential government’ which he defined in these terms,“A political regime is considered as semi-presidential if the constitution which established itcombines three elements: (1) the president of the republic is elected by universal suffrage; (2) hepossesses quite considerable powers; (3) he has opposite him, however, a prime minister andministers who possess executive and governmental power and can stay in office only ifparliament does not show its opposition to them.”); and for a pragmatic consideration of the prosand cons of a consociational model of governance, look at the sectarian power-sharing model ofgovernance in Lebanonsee e.g., Tamirace Fakhoury, ‘Debating Lebanon's Power-SharingModel: An Opportunity or an Impasse for Democratization Studies In The Middle East?’ (2014)22(1) The Arab Studies Journal, pages 230-255<https://naomiyiddish.tau.ac.il/sites/humanities.tau.ac.il/files/Debating%20Lebanon%27s%20power-sharing.pdf>.58 Paragraph 66 of the Report. See also Prof. Tom Odhiambo Ojienda, SC, ‘Submissions on the

Joint Communiqué by H.E. President Uhuru Kenyatta and H.E. Raila Odinga: Restructuringthe Judiciary, the Executive and State Offices’, pages 24-25, submitted to the Building BridgesInitiative Taskforce on 23rd July 2019<https://www.proftomojiendaandassociates.com/download/submissions-building-bridgesinitiative_prof-tom-odhiambo-ojienda-sc_23-july-2019/>59 Paragraphs 64 and 69 of the Report.22 | P a g eone group in Kenya is a small minority in the politically federatedregion.5. The per capita share of national resources for every Kenyan should becarefully balanced to account for every Kenyan being treated as equalwhile ensuring that those who have been marginalised in the past, or arebeing marginalised at present, are given extra help where they need it;606. Baraza la Washauri or Council of Advisors comprising eminent,experienced, and honourable citizens serving on a non-salaried basis, toprivately advice the President as the symbol of national unity.617. Institutionalisation of national political parties by: (i) compelling allpolitical parties to reflect the face of Kenya in ethnic, religious,regional, and gender terms; and (ii) strengthening the Office of theRegistrar of Political Parties so that the office is assertive,independent, and proactive.62 Per the Taskforce, since the Office of theRegistrar of Political Parties has lacked a substantive Registrar since itscreation in 2007, to strengthen the Office we should: (a) recruit andappoint a substantive Registrar of Political Parties and ensure thatthe position is maintained in future; (b) the requirements for recruitingthe Registrar of Political Parties should be comparable to that of aChairperson for a Chapter 15 constitutional commission; and (c)strengthen the Office of the Registrar in monitoring theimplementation of the Code of Conduct for Political Parties, andsanctioning political parties where necessary.IV. PILLAR 4: DIVISIVE ELECTIONSThe Taskforce recognizes that lack of inclusivity is the leading contributor todivisive and conflict-causing elections in Kenya; a political contest of ‘us’versus ‘them’ and choosing ‘us’ and ‘them’ on the basis of ethnicity, especiallyas concerns elections for the Office of the President.63 Per the Taskforce,Kenyans understand the winner-take-all system as “a political system in whichan alliance defined by ethnicity wins an election and the elected candidateproceeds to assume exclusive control of the National and County-level Executiveand makes decisions that are perceived to exclude the interests of ethnicalliances that were on the losing side of the election.”64 Kenyans do not believethat current constitutional and legal provisions on public participation, the

division of power between the three arms of government, and the constitutional60Paragraph 67 of the Report. Consider Article 27 of the Constitution which embodies theprinciple of equality and freedom from discrimination.61 Paragraph 68 of the Report.62 Paragraph 70 of the Report.63 Paragraphs 71-74 of the Report.64 Paragraph 76 of the Report.23 | P a g ecommissions have cured the negative aspects of the winner-take-all system, asthey perceive public appointments to be marred with political tokenism.Kenyans therefore associate the winner-take-all system with divisive electionsand as such want an end to it by desiring a political system characterized byinclusivity, equality, fairness, equity and accountability in the distribution ofpublic resources.65Per the Taskforce, our goal should be to develop a model of governance thatworks for Kenya, that is, one that entails cohesive and strong leadership andoffers decisiveness and democratic and accountable governance, but withoutthe bureaucracies that often accompany an ill-defined constitutional structureopen to multiple interpretations.66 The aim should be an Executive markedwith inclusivity and diversity balanced against the need for an effectiveGovernment.67 In that regard, the Taskforce recommends a homegrown modelof government that reflects the uniqueness of Kenya by embracing bothour pre-colonial political structures and the modern-day Kenya, and isinclusive of our different political and identity interests.68The two popular models of government are the presidential and theparliamentary systems of government. The difference between the two modelsof government is marked by their different methods of selecting and removingthe head of government and can be summarized as follows:69NO. FEATURE PRESIDENTIALSYSTEMPARLIAMENTARY SYSTEM1. Who is the head ofgovernment?The President The Prime Minister orPremier2. How is the head ofgovernment selected?The President iselected eitherdirectly by thepeople, through

universal suffrage,or by means of anelectoral collegesystem.The Prime Minister orPremier is selected by thelegislature either throughactual election by Membersof Parliament or selection bythe majority party, or acoalition of parties, followedby appointment by the head65 Paragraphs 75 and 81 of the Report.66 Paragraph 83 of the Report.67 ibid.68See generally, Thomas O. Sargentich, ‘The Presidential and Parliamentary Models of NationalGovernment’ (1993) 8(1) American University International Law Review, 579-592<https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1870&context=auilr>.69ibid 579-582.24 | P a g eSo, the Presidenthas his ownelectoral base,which may beseparate from thatof the legislature.of state.So, basically the PrimeMinister or Premier ischosen by members of thenational legislature, hencemay have the same electoralbase as that of the majorityparty or coalition of partiesin the legislature.3. What is the effect onseparation of powers?There is trueseparation ofpowers between theexecutive and thelegislature.There is no true separationof powers between theexecutive and thelegislature.4. What is the term ofoffice of the head ofgovernment?

Fixed term of office,for example, asstipulated under theconstitution.The continuation in office bythe Prime Minister or thePremier and the executiveministers is dependent onthe confidence of thelegislature.5. How is the head ofgovernment removedfrom office?During his or herterm of office, thePresident can onlybe removed fromoffice throughimpeachment by thelegislature.The Prime Minister or thePremier and the executiveministers can be removedfrom office as a result of ano-confidence vote by thelegislature, which couldmerely be on grounds ofpolitical disagreementbetween the executive andthe legislature.The Prime Minister orPremier relies on thesupport of his or her party,or coalition of parties, if ithas a majority in thelegislature.6. How efficient is thegovernment?Since the Presidenthas his ownelectoral base andmay only beThe effectiveness of thePrime Minister or Premier isdependent on the support ofhis or her party, or coalition25 | P a g eremoved from officethrough a well-laidoutand rigorous

impeachmentprocess, he is moredecisive in hisgovernance.of parties, in the legislature.An in-between model of the ‘pure’ presidential and the ‘pure’ parliamentarysystems of government has also developed and is termed a semi-presidentialsystem of government. The semi-presidential system of government generallycomprises a President directly elected by the people to serve for a fixed term asspecified under the constitution and who shares executive power with a PrimeMinister, and executive ministers, appointed by and serving with theconfidence of a democratically elected legislature.70 So, basically the system ofgovernment is characterized by two centres of executive power, a President anda Prime Minister, and the dual executive structure is intended for them tocomplement each other, whereby the President espouses popular legitimacyand represents the stability of the State, whereas the Prime Minister exercisespolicy leadership and is responsible for the everyday functions ofgovernment.71The aim of a semi-presidential system of government is usually to curb theincidence of a very strong President and entails a balance of power between thePresident, the Prime Minister and the Legislature, towards not only an effectivegovernment but also to curb arbitrary use of executive power through thedesign of proper checks and balances. Variations in the semi-presidentialsystem of government arise in relation to answers to questions of constitutionalstructure (as pertains to issues of government formation, governmentdismissal, presidential powers to dissolve the legislature, presidential termlimits, and the manner of removal of the President from office), the distributionof executive power between the President and the Prime Minister, and thedistribution of security and emergency powers.72 It is these variations in70See generally, Richard Stacey and Sujit Choudhry, ‘Semi-Presidential Government in thePost-Authoritarian Context’ (Center for Constitutional Transitions at NYU Law, June 2014)<http://www.constitutionaltransitions.org/wp-content/uploads/2017/05/Semi-Presidential-Government-in-the-Post-Authoritarian-Context.pdf>; Ms Aggie, ‘What is a Semi-PresidentialSystem of Government?’ (Worldatlas, 10 May 2019)<https://www.worldatlas.com/articles/what-is-a-semi-presidential-system-ofgovernment.html>.71See Thomas Sedelius and Jenny Aberg, ‘Semi-Presidential Systems’

<https://www.oxfordbibliographies.com/view/document/obo-9780199756223/obo-9780199756223-0271.xml>.72See generally, Richard Stacey and Sujit Choudhry, ‘Semi-Presidential Government in thePost-Authoritarian Context’ (Center for Constitutional Transitions at NYU Law, June 2014)<http://www.constitutionaltransitions.org/wp-content/uploads/2017/05/Semi-Presidential-Government-in-the-Post-Authoritarian-Context.pdf>.26 | P a g econstitutional structure and distributions of power that allow a country to crafta system of government that suits its unique circumstances.Since independence to present, Kenya has experienced four systems ofgovernment that were borrowed from the western models of government,comprising both pure and hybrid variations of the parliamentary andpresidential models of government, but have not reflected the uniqueness ofKenya:73 Between 1963 and 1964, a pure Parliamentary system; Between 1964 and 2007, a hybrid semi-presidential system; Between 2008 and 2013, a hybrid cohabitation system under theNational Accord; and Since 2013 to present, a pure Presidential system marked with awinner-take-all electoral system.1. A Homegrown Model of GovernmentTo ensure more accountability in government, the parliamentary model ofgovernment seems attractive, but to ensure an effective government, a decisivePresident with considerable power will be required. Moreover, to ensureinclusivity and accountability, Kenyans have to be involved in the election ofthe President through universal suffrage, but not in a winner-take-all electoralsystem. As such, crafting a model of government that works for Kenya willbasically entail picking and choosing specific aspects of both the Parliamentaryand the Presidential models of government that play into our uniquecircumstances as Kenyans, in terms of our history, political culture, andidentity challenges.The proposed homegrown model of government will comprise of a President,Deputy President, Prime Minister, Cabinet Ministers, and a shadow cabinet ledby the Leader of the Official Opposition:a) The PresidentThe recommendations on the Presidency are as follows:i) The President will be elected by universal suffrage after running forpresident and winning 50% + 1 of the presidential votes cast and atleast 25% of the votes cast in each of more than half of the Counties;7473 Paragraph 84 of the Report.74 This is the present manner of electing the President as embodied under Article 138(4) ofthe Constitution.

27 | P a g eii) The President will be an Executive President, that is, the Presidentwill be the Head of State and Government, the Commander-in-Chief ofthe Kenya Defence Forces, and the central symbol of national unity;75iii) The President will chair the Cabinet; andiv) The present two-term limit on the Presidential term of office is tobe retained.b) The Deputy PresidentThe running mate of the President in the presidential election shall be theDeputy President and shall deputise the President.76c) The Prime MinisterThe recommendations on the Premier are as follows:i) There will be a Prime Minister who is a Presidential appointee todeliver on the day-to-day implementation of government policy.ii) The President shall appoint the Prime Minister from among electedMembers of the National Assembly but subject to the approval ofthe National Assembly. The President shall, within a set number ofdays following the summoning of Parliament after an election, appointas Prime Minister, an elected Member of the National Assembly from apolitical party having a majority of Members in the National Assemblyor, if no political party has a majority, one who appears to have thesupport of a majority of Members of Parliament (MPs). The nomineeshall not assume office until his or her nomination is first confirmed bya resolution of the National Assembly supported by a majority vote ofthe members (an absolute majority vote of MPs). If the nominee is notconfirmed, the President shall have another set number of days tomake another appointment and this is to continue until there is asuccessful nomination for Prime Minister.iii) Concerning remuneration, the Prime Minister will continue to earn hisor her salary as a MP, with no additional salary for the primeministerial role.iv) On functions of the Prime Minister, he or she shall have authority overthe control, supervision and execution of the day-to-day functionsand affairs of the Government. He or she shall therefore be theLeader of Government Business in the National Assembly. On the75 This is the current state of affairs per Article 131(1) (a), (c) and (e) of the Constitution.76SeeArticles 130, 131(1)(b) and 147 of the Constitution.28 | P a g ePresident’s tasking, the Prime Minister will also chair Cabinet subcommitteesand shall perform or cause to be performed any matter ormatters which the President directs to be done.v) The Prime Minister may be dismissed by the President or through avote of no confidence that wins an absolute majority vote in theNational Assembly.vi) Regarding the Permanent or Principal Secretaries in the CabinetMinistries, the Taskforce recommends that they not be subject to

Parliamentary approval, in order to avoid politicization of PublicService, and that as senior administrative officers, their accountabilitywill be strictly administrative and technical.77 Alternatively, the work ofPermanent or Principal Secretaries will be coordinated by thePermanent or Principal Secretary in the Office of the PrimeMinister who will chair the Technical Implementation Committeeof Principal/Permanent Secretaries.78d) The CabinetA cabinet typically comprises of a body of advisers to the head of State whohead principal government departments.79 Two options exist in structuring theCabinet, that is, a cabinet of technocrats (similar to the Cabinet of the UnitedStates of America) or a Cabinet composed of MPs (similar to the Cabinet of theUnited Kingdom). The Taskforce recommends that the Cabinet be structured asfollows:80i) The Cabinet will be comprised of the President, the Deputy President,the Prime Minister, and Cabinet Ministers.ii) The President will chair the Cabinet.iii) The Cabinet Secretary81 be renamed Cabinet Minister. The Presidentwill appoint Cabinet Ministers after consultation with the PrimeMinister. The Cabinet Ministers shall be responsible for the offices thatthe President establishes in line with the Constitution.77 See Article155 of the Constitution which establishes the Office of Principal Secretary andmakes the appointment of Principal Secretaries subject to parliamentary approval.78 Paragraph 85 of the Report.79See e.g., Encyclopaedia Britannica, ‘Cabinet: Government’<https://www.britannica.com/topic/cabinet-government>.80 Paragraph 86 of the Report.81See Article 152 of the Constitution.29 | P a g eiv) It will be a Mixed Cabinet and shall be drawn from both MPs andtechnocrats with the MPs being made ex-officio Members of Parliamentupon successful Parliamentary approval.82v) Positions be created for Ministers of State who will be appointed fromamong Members of the National Assembly and who will be takingdirections in their ministerial duties from Cabinet Ministers. TheseMinisters of State will continue to earn their salary as MPs with noadditional salary for their ministerial role. The Minister of Stateposition is to ensure Parliamentary accountability by the Cabinet.vi) The post of Chief Administrative Secretary will be eliminated.e) The Official Opposition and the Leader of the OfficialOppositionRegarding the Official Opposition and the Leader of the Official Opposition, theTaskforce recommends as follows:

i) The party or coalition of parties that is not in Government shall bethe Official Opposition. The Opposition will play a key role in PrimeMinisterial and Ministerial Question Time sessions in Parliamentasking important questions on the matters that the Cabinet Ministersare responsible for.ii) The runner-up of the Presidential election becomes an ex-officioMember of Parliament and the Leader of the Official Opposition ifhis or her party is not represented in the Government, or of a coalitionof Parliamentary parties not represented in the Government.Accordingly, the Leader of the Official Opposition shall be enabled tohave a Shadow Cabinet to challenge the Government’s positions inParliament, including the ability to have adequate provision of qualityresearch on the policy and legislative agenda of the Government.2. Political RepresentationThe Taskforce reported about Kenya’s attachment to their right to fair politicalrepresentation that is accessible and responsive to their needs.83 To ensure fairand equal political representation, the Taskforce recommends the followingprinciples:i) The principle that the people’s choice (as reflected in the election of theirrepresentatives, including in political party primaries and nominations)82 Currently, pursuant to Article 152(3) of the Constitution, a Cabinet Secretary cannot alsobe a Member of Parliament at the same time.83 Page 12 of the Report.30 | P a g eshall be upheld through fair, free and transparent elections; thisprinciple is to be provided for in the Political Parties Act84;ii) The principle that individuals included in any Political Party lists shallinitially have undergone a process that uses transparent publicparticipation in the Counties even before any other vetting procedure isused; this principle is to be provided for in the Political Parties Act;iii) The principle that there shall be the equalisation of representation andequality of citizenship, as much as possible, by ensuring that eachKenyan vote has the same status and power, as envisaged in theConstitution;iv) The principle that political parties should be compelled through thePolitical Parties Act to be consistent with the Constitution to meet theGender Rule and other Constitutional measures of inclusion throughtheir party lists; that this will equalise both genders in political terms,rather than creating a parallel system (such as the current Women’sRepresentative positions) that creates a sense of tokenism;85 andv) The principle that political party lists for Members of County Assembliesshall follow the same principles and processes of public participation,elections and vetting as the National Assembly; that this will ensure thatthe people and parties can ensure that there is accountability in a direct

manner.In furtherance of the above, the Taskforce has recommended that the existing290 constituencies will be saved, including the protected seats as they havebecome key in the representation of sparsely populated areas. Moreover, theTaskforce recommends that the nomination lists through political partiesshould be completed in a transparent process governed by the political parties,but overseen by the Registrar of Political Parties and the Independent Electoraland Boundaries Commission (IEBC). Further, independent candidacy inelections will be retained. Furthermore, there will be devolution of politicalparties through County branches so that the people can have political forumsand venues to hold their political leaders accountable during the term of officeand not only during elections as is now.However, most, if not all, of the recommendations of the Taskforce as concernsfair and equal political representation have already been captured under the84 No. 11 of 2011.85See Section 9 and the First and Second Schedule of the Political Parties Act, 2011.31 | P a g eConstitution of Kenya, 2010, the Political Parties Act, 2011, and the Codeof Ethics for Political Parties.8686Article 81 of the Constitution provides for the general principles for Kenya’s electoralsystem and stipulates that, “The electoral system shall comply with the following principles—(a)freedom of citizens to exercise their political rights under Article 38;(b) not more than two-thirds ofthe members of elective public bodies shall be of the same gender; (c) fair representation ofpersons with disabilities; (d) universal suffrage based on the aspiration for fair representationand equality of vote; and (e) free and fair elections, which are— (i) by secret ballot; (ii) free fromviolence, intimidation, improper influence or corruption; (iii) conducted by an independent body;(iv) transparent; and (v) administered in an impartial, neutral, efficient, accurate and accountablemanner.”Article 91 of the Constitution makes provision for the basic requirements of political partiesand at sub-article (1) states that, “Each political party shall (a) have a national character asprescribed by an Act of Parliament; (b) have a democratically elected governing body; (c) promoteand uphold national unity;(d) abide by the democratic principles of good governance, promote andpractise democracy through regular, fair and free elections within the party; (e) respect the rightof all persons to participate in the political process, including minorities and marginalised groups;(f) respect and promote human rights and fundamental freedoms, 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.” Further, sub-article (2)provides that, “A political party shall not—(a) be founded on a religious, linguistic, racial, ethnic,gender or regional basis or seek to engage in advocacy of hatred on any such basis; (b) engage inor encourage violence by, or intimidation of, its members, supporters, opponents or any otherperson; (c) establish or maintain a paramilitary force, militia or similar organisation; (d) engage inbribery or other forms of corruption; or (e) except as is provided under this Chapter or by an Act ofParliament, accept or use public resources to promote its interests or its candidates in elections.”Currently, Section 7(2) of the Political Parties Act, 2011 provides that, “A provisionallyregistered political party shall be qualified to be fully registered if— (a) it has recruited asmembers, not fewer than one thousand registered voters from each of more than half of thecounties; (b) the members referred to in paragraph (a) reflect regional and ethnic diversity, genderbalance and representation of special interest groups; (c) the composition of its governing bodyreflects regional and ethnic diversity, gender balance and representation of special interestgroups; (d) not more than two-thirds of the members of its governing body are of the samegender.(…)” On the other hand, Section 21(1) of the Political Parties Act, 2011 allows theRegistrar of Political Parties to deregister a political party that: “(a) has contravened theprovisions of Article 91 of the Constitution; (b) does not promote free and fair nomination ofcandidates; (c) does not adhere to the law relating to the nomination of candidates; (d) does notrespect the national values and principles of the Constitution; (e) obtained its registration in afraudulent manner; (f) has instigated or participated in the commission of an election offence; Or(g) has acted contrary to the provisions of section 26; (h) does not have representation of specialinterest groups; (i) does not maintain the requirements set out under section 7; (j) has contravenedthe provisions of Article 81(b) of the Constitution.” Finally, Section 26(1) of the PoliticalParties Act, 2011 provides that the moneys allocated to a registered political party from thePolitical Parties Fund shall be used for purposes compatible with democracy, including: (a)promoting the representation in Parliament and in the county assemblies of women, personswith disabilities, youth, ethnic and other minorities and marginalised communities;(b)promoting active participation by individual citizens in political life; and (c) the organisation bythe political party of civic education in democracy and other electoral processes.See also the Code of Conduct for Political Parties in the First Schedule of the PoliticalParties Act, 2011, which embodies the provisions of the Constitution and the Political PartiesAct, 2011; particularly paragraphs 4, 5 and 6.32 | P a g e3. The Independent Electoral and Boundaries Commission (IEBC)The Taskforce has equally made recommendations on changes to the IEBC asfollows:87i) Devise a mechanism to give political party leaders a role in the

recruitment of IEBC Commissioners by allowing them to nominateindividuals who are non-partisan, with a record of accomplishment andintegrity, and who are not known political supporters or activists of theparty;88ii) Unlike other independent commissions, all IEBC Commissioners are toserve on a full-time basis;89iii) The we go to the next election with new IEBC Commissioners torestore and strengthen the faith of Kenyans in the IEBC;iv) All IEBC staff be employed on a three-year contract, renewable onlyonce, if their performance is good, in order to prevent the continuationof errors by enabling each Commission at one time in its term to makeappointments;v) Returning officers to be hired in the same manner as IEBCCommissioners, that allows for public participation; a report on thedecision and the basis for the decision to, or not, to recruit should beavailed to the public at the end of the process of recruiting returningofficers;vi) Returning officers to be contracted on a part-time basis and will notoversee more than one general election;vii) Chairmanship of IEBC should not be the preserve of lawyers, but anyperson with at least fifteen (15) years management experience at seniorlevel will qualify to apply for Chairmanship of IEBC; however, one of theCommissioners should be a lawyer;viii) All current senior IEBC officers to be vetted;ix) The duties of Secretary and Chief Executive Officer of IEBC to beseparated; the Chairman of IEBC to be the Chief Executive Officer ofIEBC;x) The composition of IEBC must reflect the Face of Kenya on alllevels;87 Paragraph 88 of the Report.88See also Paragraph 201 of the Report.89 Paragraph 202 of the Report.33 | P a g exi) Enact provisions that reduce the disproportionately high costs ofKenya’s elections, for example, through the use of the party list system;andxii) Reform the present electoral system to ensure it is simple,accurate, verifiable, secure, accountable and transparent asmandated by Article 86 of the Constitution.V. PILLAR 5: INCLUSIVITYInclusivity, which hinges on the equal and equitable treatment of all Kenyansin all aspects, is the key to the well-being and standard of living of Kenyans.90Currently, Article 27 of the Constitution embodies the principle of equalityand freedom from discrimination and states as follows:(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 fundamentalfreedoms.(3) Women and men have the right to equal treatment, including the right to equalopportunities in political, economic, cultural and social spheres.(4) The State shall not discriminate directly or indirectly against any person onany ground, including race, sex, pregnancy, marital status, health status, ethnicor social origin, colour, age, disability, religion, conscience, belief, culture, dress,language or birth.(5) A person shall not discriminate directly or indirectly against another person onany of the grounds specified or contemplated in clause (4).90 At the core of inclusivity in Kenya is the implementation of Chapter Four of the Constitutionon the Bill of Rights, which is the promise and framework to preserve the dignity of individualsand communities and to promote social justice and the realisation of the potential of all humanbeings; Article 19 of the Constitution. Currently, Article 21(1) of the Constitution enjoinsthe State and every State organ to observe, respect, protect, promote and fulfil the rights andfundamental freedoms in the Bill of Rights. In that regard, under Article 21(2) of theConstitution the State is required to take legislative, policy and other measures, including thesetting of standards, to achieve the progressive realisation of the rights guaranteed underArticle 43 of the Constitution, which provides for economic and social rights and states that:(1) Every person has the right—(a) to the highest attainable standard of health, which includes the right to healthcare services, including reproductive health care;(b) to accessible and adequate housing, and to reasonable standards of sanitation;(c) to be free from hunger, and to have adequate food of acceptable quality;(d) to clean and safe water in adequate quantities;(e) to social security; and(f) to education.(2) A person shall not be denied emergency medical treatment.(3) The State shall provide appropriate social security to persons who are unable tosupport themselves and their dependants.34 | P a g e(6) To give full effect to the realisation of the rights guaranteed under this Article,the State shall take legislative and other measures, including affirmative actionprogrammes and policies designed to redress any disadvantage suffered byindividuals or groups because of past discrimination.(7) Any measure taken under clause (6) shall adequately provide for any benefitsto be on the basis of genuine need.(8) In addition to the measures contemplated in clause (6), the State shall takelegislative and other measures to implement the principle that not more than twothirds of the members of elective or appointive bodies shall be of the samegender.The Taskforce reported that Kenyans interpret inclusivity in very political termsas ‘who gets what, when and how’, focus on the authoritative allocation ofnational resources and values, and as such yearn for more inclusion inexecutive power, at the National and County levels91. This translates into

Kenyans’ need for fair and equal representation in politics, and a desire torespond to the inequality in the power of the vote across the country; the oneman, one vote democratic principle does not seem to be a reality in Kenya’svoting system. So, inclusivity is basically about the levels of representation ofthe diverse groups in Kenya, in terms of ethnicity, religion, region, culture,gender, age, and disability. The Taskforce has thus defined inclusivity as “thehighest degree of responsiveness by decision-makers in the Government to theinterests of social/ethnic groups and the needs and concerns of distinctconstituencies such as young people, women, people with disabilities, andelders, among others, as expressed by their elected representatives, by petition,or directly through referenda.”92Lack of inclusivity in Kenya has manifested itself variously, for example: ingovernment appointments in the public service (and in recruitments into thedisciplined forces); in the ability of Kenyans to vote during the generalelections; public participation in government decision-making; lack ofimplementation of the laws and policies that address the needs and concerns ofthe women (especially, the two-thirds gender rule)93, young people, and personsliving with disabilities; government irresponsiveness to the needs of mostKenyans; and the lack of protection of the minority groups such as people withdisabilities and ethnic and religious groups with low populations. This lack ofinclusivity necessitates the need for the following:1. The government visibly respects Kenya’s ethnic and religiousdiversity and that there is increase in inclusivity on a political,economic, social, religious, cultural, youth, and gender basis;91 Paragraph 96 of the Report.92 Paragraph 95 of the Report.93See Article 27(8) of the Constitution.35 | P a g e2. Reduce the phenomenon of those marginalised at the national level beingresponsible for marginalization of others in the Counties; avoiddevolution of marginalization to the Counties;943. Ensure that job allocation in the public service reflects the ethnic,religious, regional, and cultural Face of Kenya, and that recruitmentis free of corruption, including enabling the Public Service Commissionto publicise its annual report on diversity in the Public Service; thepursuit for a public service that reflects the Face of Kenya will also callfor empowering the Public Service Commission and County Governmentsto undertake professional search and development for minoritycandidates to increase their chances of qualifying for public

positions;954. Establish the Office of the Public Participation Rapporteur to ensurequality, transparent and inclusive public participation processes ingovernment decision-making, especially public participation in thedebates and deliberations leading to those decisions;96 the Office of thePublic Participation Rapporteur will be mandated to conduct all publicparticipation on behalf of all State and non-State entitiesundertaking policy and operational initiatives that Constitutionallyrequire public participation and will be required to keep a publiclyaccessible and accurate record of public participation and beresponsive to institutions seeking its services, plus an addedmandate that enables public interest litigation in a way that isinsulated from supplier/vendor influence;9794 Paragraph 100 of the Report.95 Paragraph 103 of the Report. For example, to address corruption and bribery in therecruitment of Kenyans into the disciplined services, the Taskforce recommends the utilizationof private sector recruitment companies with internationally reputable brands to help in fillingthe recruitment pool in a way that reflects both merit and the Face of Kenya.96 Paragraph 101 of the Report.97 The Report cites the Indian model of public interest litigation. See e.g., Holladay, Zachary(2012) ‘Public Interest Litigation in India as a Paradigm Shift for Developing Nations, 19(2)Indian Journal of Global Legal Studies, Article 9<https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1492&context=ijgls>.See also the case of Bandhua Mukti Morcha v. Union of India & Others, AIR [1984]SC 802,811<https://www.escrnet.org/sites/default/files/caselaw/bandhua_mukti_morcha_vs_union_of_india_others_on_16_december_1983.pdf>, the Supreme Court of India said the following about public interestlitigation in India:“Public Interest litigation is not in the nature of adversary litigation but it is a challenge andan opportunity to the government and its officers to make basic human rights meaningful tothe deprived and vulnerable sections of the community and to assure them social andeconomic justice which is the signature tune of our Constitution. When the Court entertainspublic interest, litigation, it does not do so in a cavilling spirit or in a confrontational mood orwith a view to tilting at executive authority or seeking to unsurp it, but its attempt is only toensure observance of social and economic rescue programmes, legislative as well as36 | P a g e5. Implement the laws and policies that address the needs and concerns ofwomen, young people, and persons living with disabilities;986. Ensure that there is no abuse of economic power by individuals ornetworks to manipulate or dominate political outcomes and the actionsof all branches of Government;99 the Office of the Public ParticipationRapporteur will be empowered to record all business lobbyists whoseek to interact with public offices and individuals to influencelegislation, policy and regulation on behalf of businesses and placethe record in the public domain;7. To ensure religious freedom while protecting Kenyans from religiousfraud, all churches, mosques and temples are to be properlyrecorded in a public register; their finances are to be subjected to an

annual independent audit that is submitted to the registeringauthority and posted publicly so that every member of the congregationcan see it;8. An appellate court within the Kadhi Court system; and9. Invest in promoting, and building trust in indigenous knowledge,cultural technologies embedded in traditions and practices, foods andmedicines.executive, framed for the benefit of the have-nots and the handicapped and to protect themagainst violation of their basic human rights, which is also the constitutional obligation of theexecutive. The Court is thus merely assisting in the realisation of the constitutionalobjectives.”See also Article 156(6) of the Constitution which empowers the Attorney-General to“promote, protect and uphold the rule of law and defend the public interest”, a role which theAttorney-General has not really been fulfilling as the interests of the Executive take precedenceover the public interest. It is ordinary Kenyan citizens, the likes of Okiya Omtatah Okoiti, thathave taken up litigation in the public interest, relying on Article 22(2) of the Constitution,mostly pitted against the Attorney-General on the other side of the adversarial table defendingState machineries.98Under Article 21(3) of the Constitution, all State organs and all public officers have theduty to address the needs of vulnerable groups within society, including women, oldermembers of society, persons with disabilities, children, youth, members of minority ormarginalised communities, and members of particular ethnic, religious or culturalcommunities.99 Paragraph 102 of the Report.37 | P a g eVI. PILLAR 6: SHARED PROSPERITYThe markers of unequal prosperity in Kenya are:100i) Extreme poverty and hunger in parts of the country;ii) High unemployment and underemployment, in particular among theyoung people;iii) Extreme income inequality, with our ‘economic growth’ not closingthe gap;101iv) Irrational incentives against innovation, growth and job creation;v) Persistent gatekeeping and rent-seeking by those in Governmentthat is frustrating and causing many Kenyans to lack decent incomeand investment in Kenya; andvi) Exclusion, in terms of access to education, health, infrastructure,clean drinking water, wastewater management, and access to factorsand boosters of production.The Taskforce recognizes that Kenya faces the aforesaid problems of increasingpoverty, hunger, unemployment, corruption, exclusion, persistent inequalities,and lack of a common national character mainly because of poor policycoherence and the absence of an economic vision that can enable us to break

out of the present circumstances and this continues to stand in the way of ourshared progress as a people.102 These problems have also set us on nonsustainableand unequal development paths and have exposed us tooverwhelming political risks,103 judging from the 2007 post-election violence inKenya where politicians pit jobless youth against each other based on politicaldifferences motivated by negative ethnicity.Moreover, the Taskforce reports that for Kenyans, shared prosperity has to dowith the creation of enough jobs and employment, more so for youngKenyans. The Taskforce however expresses the view that shared prosperity isnot necessarily all about sharing the national cake as is popularlyunderstood by most Kenyans, but is also about growing our nationalresources so that there is enough opportunity and wealth to build theKenya we want, as the current generation of Kenyans is an educatedpopulation with exposure to ideas, technologies and industries comparedto the previous generations.104 As such, addressing the lack of jobs needs a100 Paragraphs 105 and 106 of the Report.101 Paragraphs 111 and 112 of the Report.102 Paragraphs 106 and 107 of the Report.103 Paragraphs 107 and 115 of the Report.104 Paragraph 109 of the Report. At Paragraph 110 of the Report, the Taskforce cites Singaporeas an example that Kenya’s industrial growth is possible; Singapore’s industrial growth andmanufacturing capacity was propelled by the famous maxim by Lee Kuan Yew, Singapore’s38 | P a g ecomplete revolution of how the Kenyan economy operates rather than simplyimproving our economic output and present rates of investment; it entailsbuilding and growing an economy that can create jobs by encouraginginnovation and entrepreneurship rather stifling it.105Accordingly, the Taskforce recommends that:1061. We build an economy that is founded on the principles and practicesof value creation (industrial economy), that yields high employment,high productivity and export economy and rejects the extractive economymodel as the primary mode of economic activity in Kenya;107 The aim is anew economic paradigm for jobs and prosperity that raises nationaldomestic savings beyond 25% and rapid growth of labour-intensivemanufacturing, especially in agriculture, livestock and fishing, throughdeeper regional integration;2. Aggressive and continuous market creation for the labour-intensivemanufactured Kenyan goods in neighbouring countries; this willrequire deepening of our regional integration with neighbouring countriesin achieving a genuine common East African Community market

underpinned by eventual political federation;1083. The National Intelligence Service to undertake an audit of theprocesses enabling cartels in the agricultural sector, which shouldculminate in executive action under the anti-corruption and governmentfounding leader, that, ‘No country has become a major economy without becoming an industrialpower’. See also Yao Yang, ‘What can developing countries learn from China’s enormousgrowth?’ (World Economic Forum, 24 October 2019)<https://www.weforum.org/agenda/2019/10/what-can-developing-countries-learn-fromchina-s-enormous-growth/>; Dan Su and Yang Yao, Manufacturing as the Key Engine ofEconomic Growth for Middle-Income Economies (ADBI Working Paper Series No. 573, May 2016)<https://www.adb.org/sites/default/files/publication/184350/adbi-wp573.pdf>.105 Paragraphs 108 and 116 of the Report.106 Paragraph 120 of the Report.107 An extractive economy is one that harvests and exports its natural resources (e.g. fromagriculture, fishing, forestry and mining) as raw materials or primary goods with little or noprocessing or refining, leading to the depletion of natural resources and downgrading of capitalwhere non-natural resources are concerned, as opposed to an industrial economy thatprocesses its natural resources using machinery and labour in order to produce refined andfinished products and regenerate capital in the case of non-natural resources; an industrializedeconomy may actually import primary goods from an extractive economy nation, process it andthen export the finished products back to the extractive economy nation obtaining morereturns in the end. See e.g., Stephen Hinton, ‘Explainer: What is the Extractive Economy?’ (20May 2018) <https://medium.com/@stephenjhinton/explainer-what-is-the-extractive-economy-65172f28bd6>; Anke Schaffartzik and Melanie Pichler, ‘Extractive Economies in Material andPolitical Terms: Broadening the Analytical Scope’ (9(7), 1047 Sustainability, 26 June 2017)<https://www.mdpi.com/2071-1050/9/7/1047/htm>.108 Paragraph 118 of the Report.39 | P a g ereform agenda;109 New appointees to the agricultural sector are also to bevetted for any business or material linkages with known members ornetworks of cartels;1104. Economic coordination by the State (not necessarily State ownership)to grow markets and industries;5. Fashioning of Kenyan laws to protect innovation and inventionusing intellectual property, genes, and the living bodies of knowledgedeveloped by generation after generation of our people; because thefuture of the global economy is in intellectual property;6. The protection of intellectual property be accompanied by frameworksfor use that maximise the ability of Kenyans to build upon theintellectual properties to build actual wealth and jobs through asurge in entrepreneurship; this can be done through widespreadtraining, and macro- and microeconomic policies that favour start-upsand small growing businesses;7. Prioritised lending as a development strategy, by providing legal and

regulatory guidelines for banks to lend to priority sectors such asmicro, small and medium businesses, export credit, manufacturing,housing, education, health, renewable energy, sanitation and wastemanagement, and agriculture, which includes livestock and fishing;8. A 50-year plan that is more political than technocratic and that iscapable of lasting one electoral cycle, in order to build anindustrialised economy that meets the needs of the current and futuregenerations; with the ultimate aim being to see Kenya join the world’smost prosperous, shared and sustainable economies;9. Entrenching Article 43 of the Constitution on economic and socialrights in political platforms and national and county policy;10. Secure future generations from unsustainable debt andenvironmental destruction;11111. Using scarce public resources for development and not bureaucracythrough:112i) Targeting a ratio or ceiling, written into law, of 70:30 fordevelopment versus recurrent expenditure;109 Paragraph 117 of the Report.110ibid.111 Paragraph 123 of the Report.112 Paragraph 124 of the Report.40 | P a g eii) Clarification of the legal and administrative powers of theSalaries and Remuneration Commission (SRC) to ensure that itoversees all public salary reviews and changes, and enforcing thesaid powers of the SRC to rationalise all public sector salaries inthe country to address the large discrepancies in income;iii) Pooling facilities in the public service and using technology totake note of dormant facilities, for example, conferencingfacilities, before hiring a hotel for meetings and events;iv) Elimination of wasteful expenditure in National and CountyGovernment through laws and regulations that ensure that itemssuch as new cars or office refurbishments for incoming seniorofficials follow proper procedure in planning, budgeting andprocurement; andv) Eliminating all sitting allowances for public officers on salary.12. Children and Young people should be allowed more employment andlivelihood chances by Government through:113i) Making it easier for small businesses to compete and grow at lowcost and with minimal constraints;ii) Developing and launching a local national ease of doing businessindex for small Kenyan businesses rather than relying on foreignindexes, coupled with a comparative annual assessment by theKenya National Bureau of Statistics that is disaggregated bygeography — Counties, cities, and towns — and is publicised;iii) Minimising taxation of new and small businesses by giving them atax holiday of at least 7 years as a support to youth

entrepreneurship and job creation;iv) Aggressive promotion of entrepreneurship skills from an early age;v) Coordinating, incentivising and driving the growth of the creativeindustries and sports, among other sectors in which young Kenyansshow enormous potential and interest;vi) Identifying and investing in special talent and special needs at theEarly Childhood Development stage;vii) The private sector to form a non-profit foundation, chaired by thePresident, to provide mentoring, training, and support tools toaspiring business owners aged 18-35, and match the youngentrepreneurs with a business development adviser and anationwide network of volunteer mentors; this should be linkedto the Government Youth Funds. The foundation is also to provide113 Paragraph 125 of the Report.41 | P a g ework readiness, entrepreneurship and financial literacy training inschools starting from the age of 12 until graduation using classroomvolunteers;viii) Opening an advice desk in every Huduma Centre manned by abusiness development expert; andix) Giving all Kenyans equal access to a minimum level of qualityeducation that leads to employment or entrepreneurial opportunity;13. Broadening the tax base while simplifying taxation to encouragecompliance and reduce corruption in tax assessments; the Taskforcerecommends that introducing a flat tax for every income category abovea living wage would help to reduce tax fraud, but there are alsodisadvantages that come with eliminating the tax brackets andembracing the flat tax. Tax reforms are also required to enable thepunishing of both tax evaders and those who facilitate tax evasion,and the regulation of digital lending platforms to curb their predatorylending tendencies to charge poor Kenyans high interest rates;114 and14. Government development actions to be undertaken in every Countyso that no part of the country and no Kenyan is left out; TheTaskforce recommends a Kubadili Plan to bring marginalised wards tothe level generally enjoyed by the rest of the country, and theestablishment of Product Development Parks in every County to allowyoung Kenyan entrepreneurs to benefit from expert advice on how togrow a promising idea to a marketable product.115VII. PILLAR 7: CORRUPTIONThe taskforce has defined corruption as “the abuse of entrusted power forprivate gain” and has highlighted some of the effects of corruption as follows:corruption has caused citizens, investors and fair-minded stakeholders to haveextremely low trust in public institutions; the rent-seeking and gatekeeping of

public service by cartels has deeply undermined service delivery in terms ofgovernment budgeting, regulation, procurement, and the shaping of markets;and corruption has contributed to national and human insecurity, andthreatens national prosperity, continuity, and morale.116 The Taskforce hasalso acknowledged that legislation on corruption enacted pursuant to theprinciples embodied in the Constitution of Kenya, 2010 have largely beenineffective in dealing with the corruption menace, because of the114See e.g., Kimberly Amadeo ‘Flat Tax with Its Pros and Cons: Why a Flat Tax Might IncreaseYour Tax Bill’ (The Balance, 30 May 2019) <https://www.thebalance.com/flat-tax-pros-consexamples-compared-to-fair-tax-3306329>; and William G. Gale, ‘Simple, Efficient, Fair. Or IsIt? The Flat Tax in Theory and Practice’ (1998) 16(3) The Brookings Review, pages 40-44.115 Paragraph 126 of the Report.116 Paragraphs 132 and 135 of the Report.42 | P a g eprevailing political, executive, legislative and judicial cultures that italleges is not supportive of integrity initiatives.117 Even the institutionsestablished to tackle corruption in public service have come short one after theother despite the change in their outfits, including the change in name. Forexample, from the defunct Kenya Anti-Corruption Commission we now havethe Ethics and Anti-Corruption Commission.118The Taskforce reports that “[t]ackling corruption is the single most importantmission Kenya has now”. The Taskforce thus makes the followingrecommendations:1. We adopt preventive and deterrent measures, rather than curativemeasures, in the fight against corruption, which means:119i) Sifting entrants into the public service to ensure that only persons ofintegrity enter the public service;ii) Building systems that facilitate, promote and enable ethical conductand responsibility in public resource management such as regularethics training and assessments (for promotions and transfers) atevery level of public service, coupled with spot check and stingoperations;iii) Freezing of promotions for persons in public service managementpositions who should have known about corruption scandals andinvestigation in their departments and agencies, in order toincorporate in them support for the fight against corruption; andiv) Amending the Defamation Act to deny all Public Officers a courseof action where allegations are made against them, in their officialcapacity, regarding matters of ethics and corruption.2. Privatisation of Government owned entities undertaking businessfunctions to reduce corruption and add to efficiency (through thecompetitive business culture in the private sector) and costeffectiveness;1203. Free Kenya of cartels by:121

117 Paragraphs 130 and 133 of the Report.118The Kenya Anti-Corruption Commission was established by Section 6 of the Anti-Corruption and Economic Crimes Act, 2003 (ACECA) and was later replaced by the Ethicsand Anti-Corruption Commission established under Section 3 of the Ethics and Anti-Corruption Commission Act, 2011 (EACC Act, 2011). See Sections 34-37 of the EACC Act,2011; and PART III of ACECA.119 Paragraphs 136 and 140 of the Report.120 Paragraph 137 of the Report.121 Paragraph 139 of the Report.43 | P a g ei) Undertaking a rigorous intelligence-led review of the hold of cartelsin crucial aspects of the economy and the public systems ofbudgeting, procurement, regulation and the rigging of markets;ii) Imposing heavy fines and jail terms on banks and bankingexecutives found to be laundering money and enabling corruption,and in cases of repeated offences the Central Bank of Kenya shouldendeavour to withdraw licenses issued to banks and levy otherheavy penalties;iii) Utilising anti-corruption sting campaigns that target lawyers, judgesand legislators, especially in relation to cases that are difficult toprosecute due to the evidential component;iv) Punishing facilitators of tax evasion and money laundering in theprivate sector;v) Carrying out a thorough audit of negative legal, policy, andadministrative incentives in the public service that undermine valuefor money, fairness in service delivery, and effectiveness, andturning the findings of the audit into policy initiatives andimplementing them;vi) Imposing both custodial sentences and punitive fines against thosefound guilty of economic crimes and using the proceeds of economiccrimes to assist vulnerable Kenyans; andvii) Incentivizing whistleblowers whose information is necessary to thesuccess of the asset seizure or successful prosecution by offeringthem a 5% share of proceeds recovered from anti-corruptionprosecutions or actions, while protecting their privacy and safety atthe same time.4. Public officers be barred from engaging in private business with theGovernment, and to reduce instances of conflicts of interest they berequired to make declarations of conflicts of interest and submit writtenreports (including reports filed by their family members and relatives) ontheir financial and other interests in the decisions of the Governmentdepartments or agencies where they are employed;1225. Wealth declaration forms by public service officers in the executive(both National and County Governments), legislature, judiciary andparastatals, be made public on the websites of their respective servicecommissions; a personal wealth and financial disclosure ofshareholdings, remunerated employment, family and business trusts,

real estate, government contracts, registered directorships, partnerships,liabilities, bonds, investments, savings/investment accounts, any asset122 Paragraph 141 of the Report.44 | P a g eworth over Kshs. 10 million, any other substantial sources of income,gifts over Kshs 50,000 in the course of duty, sponsored travel by nongovernmententities, and membership of any organisations that maypresent a conflict of interest, including a written narrative of howwealth above Kshs. 50 million was acquired;1236. Make Kenya a 100% e-services nation by digitising all Governmentservices, processes, payment systems, and record keeping and securingthe services from criminal tampering;1247. More resignations to show that leaders in executive positions are totake political responsibility for disasters which take place on their watchby resigning, not necessarily where direct responsibility is established, toallow implicated public institutions to start over on a clean slate;1258. Reduce instances of Government bailouts for Government OwnedEntities (GOE) by cutting down on wastage and the moral jeopardy ofsuch entities being careless managers of the resources entrusted to themby:126i) Strengthening the capacity of the Controller of Budget to be able todetect and respond in a timely manner to misappropriation,wastage, and illegal processes;ii) Streamlining Government parastatals through a renewed focus oncore business and cutting down on wastage by enacting theParastatal Reforms Bill;127 andiii) Rationalising all GOEs and enacting the Government OwnedEntities Bill,128 to bring all GOEs expenditures under control withcommon user benchmarks, independent valuations of projects, andvalue for money audits on completed projects;9. Strong reforms to increase public confidence in the Judiciary;protecting the independence of the Judiciary as a fundamental principle,123 Paragraph 142 of the Report (The disclosure requirement is targeted towards public officerswho hold senior management and leadership positions, including the President, the Cabinet,Governors, Principal Secretaries, senior judicial officers and legislative officers, Chief ExecutiveOfficers and Chairpersons of Parastatals and Companies with Government of Kenyashareholding).124 Paragraph 144 of the Report.125 Paragraph 143 of the Report.126 Paragraph 145 of the Report.127See e.g., Report of the Presidential Taskforce on Parastatal Reforms, October,2013<https://www.cofek.co.ke/Report%20of%20The%20Presidential%20Task%20force%20on%20Parastatal%20Reforms.pdf>.128See e.g., the draft Government Owned Entities Bill,2014<https://www.cofek.co.ke/Government%20Owned%20Entities%20Bill%202014-

%20Working%20Draft.pdf>.45 | P a g ewhile ensuring that the Judiciary is accountable to the People of Kenyain a clear manner by:129i) Creating the position of Special Magistrates and Judges to dealwith the most grievous cases of drug trafficking, corruption,terrorism, and other serious criminal offences and make specialsecurity arrangements for these magistrates and judges to beprovided for by the State;ii) Expanding the powers of the Judicial Service Commission todiscipline judges, so that the Commission can legally deal withlesser disciplinary offences by judges that affect the value of justicedelivered without resulting to the Constitutional measure of removalfrom office;130iii) Revamping the Office of the Judiciary Ombudsman to strengthenthe process of responding to complaints in the judiciary by making itaccessible and responsive to the public; andiv) Advertising to Kenyans that they have a choice to take theircomplaints about members of the judiciary to the JudiciaryOmbudsman or the Commission on Administrative Justice.131VIII. PILLAR 8: DEVOLUTIONThe aim of the devolved system of government, hence its inclusion in theConstitution of Kenya, 2010, was to decentralise power and increase access topublic services across the country.132 The Taskforce acknowledges thatdevolution has been successful in changing the governance structure of thecountry and the management of public resources, and has equally improvedinclusion.133 However, it reports that Kenyans lament that as between theNational and the County Governments, devolution has devolvedcorruption, ethnic antagonism,134 a bloated workforce, divisive elections,duplication of roles, citizens’ lack of capacity to hold leaders accountable,inequality, exclusion and marginalisation,135 lack of integrity, state129 Paragraph 146 of the Report.130See Articles 168 and 172(1)(c) of the Constitution.131See Commission on Administrative Justice <https://www.ombudsman.go.ke/>. See alsoArticle 172(1)(c) of the Constitution which empowers the Judicial Service Commission toappoint, receive complaints against, investigate and remove from office or otherwise disciplinemagistrates, Court registrars and other judicial officers and staff, except judges.132 Paragraph 148 of the Report.133 Paragraphs 148 and 151 of the Report.134See Paragraph 156 of the Report describing how the ‘winner-take-all” phenomenon that isprevalent in the National Government is manifesting in the County Governments.135See Paragraph 157 of the Report describing the “arbitrary, nepotistic or crony recruitment ofhuman resources” in the County Governments that overlooks merit and inclusivity despite theexistence of County Service Boards; hence calls for the replication of the independence of the

Public Service Commission at the County level for the recruitment of County staff, setting46 | P a g ecapture,136 a deficit in safety and security, and distorted resourceallocation.137 They cite the following as challenges to devolution that need tobe addressed:138i) The revenue share between National and County Governments;ii) How to resolve exclusivity and marginalisation in the Counties;iii) How the Counties can more effectively carry out their mandates; andiv) How to enhance the economic growth in Counties, and their abilityto raise revenue without discouraging economic dynamism due tored tape (excessive and unnecessary rules or regulations).Kenyans therefore yearn for strong anti-corruption and inclusion measures toaddress discrimination, inequality, and inequity in resource distribution, andas such want the following:139i) Retention of the 47 Counties but with further decentralisation ofpublic services to the ward level, for better service delivery;ii) County development projects to receive enough oversight to preventwastage and corruption; therefore they want the means to reportprojects that are being developed shoddily and to have thatinformation acted upon by the relevant institutions;iii) No duplication of roles by County and National Public Officers;reimbursement levels in harmony with those of the National Government, ensuring inclusivity,and raising the skills and capabilities of County staff to enhance staff effectiveness.136 State capture refers to the domination of public power and bureaucracies by strong andpowerful individuals or interest groups, such as specific ethnic or regional groups or thebusiness community (where public power is controlled by a stronger private corporate power).See e.g., Encyclopaedia Brittanica, ‘State Capture’ <https://www.britannica.com/topic/statecapture>(where it is stated that; “[i]n postcolonial societies, the concept of state capture refers torulers favouring their own ethnic or regional groups rather than the nation as such; the state isthereby captured by a specific group.” In the context of post-communist societies, state capturehas been described to entail “a situation in which decisions are made to appease specificinterests, maybe even through illicit and non-transparent private payments to public officials,rather than to suit the national interest aggregated and mediated through a democratic process.State capture takes place when the basic rules of the game are shaped by particularistic interestsrather than by the aggregated national interest.”). For an example of how state capture playedout in South Africa, see Neil Arun, ‘State Capture: Zuma, the Guptas, and the sale of SouthAfrica’ (BBC News, 15 July 2019) <https://www.bbc.com/news/world-africa-48980964>(where state capture was described as “a form of corruption in which businesses and politiciansconspire to influence a country's decision-making process to advance their own interests. As mostdemocracies have laws to make sure this does not happen, state capture also involves

weakening those laws, and neutralising any agencies that enforce them”). See also Anne-Lugon-Moulin, ‘Understanding State Capture’ (Freedom From Fear Magazine, Issue 6)<http://f3magazine.unicri.it/?p=402>.137 Paragraphs 152 and 159 of the Report.138 Paragraph 153 of the Report.139 Paragraphs 150, 151 and 155 of the Report.47 | P a g eiv) County tax funds to be allocated to development projects;v) Funds to County Governments to be increased to between 35% and50% of national revenues and devolution of more public functions tothe Counties;140 andvi) Consultation of the public, through the public participation process,on planning and budgeting in the Counties.The Taskforce thus recommends:1. The retention of the 47 Counties and support for the voluntaryprocess of Counties forming regional economic blocs, with more ofthe County funds being used for development purposes rather than highrecurrent and administrative costs;1412. Increasing the resources to the Counties by 35%–50% of the lastaudited accounts, hence need for revision of the Commission forRevenue Allocation’s revenue allocation formula accordingly to take thefollowing into account:142i) Ensuring that the money devolved to the Counties is meant forservice delivery to Kenyans in the settled and serviced areas,including for people living near to the furthest boundaries; hencethe revenue allocation formula should take into account thedistance from the centre to the furthest area of the County asopposed to the general size of the County;ii) Services provided by the Counties must be as equal as possible, andthere should be investment in critical areas such as health,agriculture, and the rapid urbanisation of all areas, while takingaccount of past and existing marginalization; the aim should be forall Kenyans to have to cover the same distances to accesspublic services;iii) Costing the functions transferred from the National Government tothe Counties per the Fourth Schedule of the Constitution andletting money follow the functions, while avoiding duplication offunctions and wastage of resources;iv) Wind up or restructure parastatals performing Countyfunctions; sync this with the parastatal reform policy;140See Article 225(4) of the Constitution, which sets the current cap of funds transferred toCounty Governments at 15%.141 Paragraph 160 of the Report.142Paragraph 161 of the Report; See also Commission for Revenue Allocation’s current revenueallocation formula at <https://www.crakenya.org/information/revenue-allocation-formula/>;

and Article 225(4) of the Constitution setting the current revenue cap to the Counties at 15%.48 | P a g ev) Allocation of revenue to the Counties to follow the order of,equality, equity, and special needs; which means the provisionof an equal basic share for all Counties to share equally, anEqualisation Fund for a set period to take care of the marginalisedareas, and taking into account population and urgent needs such ashealth and agriculture;vi) Ensure that the Constituency Development Funds (CDF) do notclash with the development obligations of Counties, such thatWard representatives merely have oversight over funds intended forbursaries;vii) Assess the revenue collection and resource generation byCounties and factor this in the annual resource allocation to theCounties.viii) Link the County Integrated Development Plan to a transparentassessment of the development needs of each ward; andix) Cut taxes in relation to Auditor General audits and increase thetaxes when it is established that there is more accountability andgovernance on money use at both the National and County levels.3. Changes to the County Executive:143i) The running mate of every candidate for the position ofGovernor is to be of the opposite gender;ii) Whenever a vacancy arises in the Office of Deputy Governor forany given reason, and the Governor fails to appoint a replacementwithin 90 days, the Speaker of the said County Assembly shouldnominate a Deputy Governor with the approval of the CountyAssembly;1444. Devolution of the health function to the Counties should bereorganized as follows:145143Paragraph 162 of the Report.144Another change to the County Executive worth recommendingis the creation of a shadowCounty Executive Committee under the first runner-up for the election to the Office ofGovernor, in like manner as the national Cabinet, which would also operate as the officialopposition in the County to keep the Governor and the County Executives in check.Accordingly, whenever the Governor has to vacate office on charges of corruption arisingfrom improper handling of County resources then the Deputy Governor should alsovacate office so that the first runner-upin the election for the Office of Governortogether with their running mate can assume the Office of Governor and DeputyGovernor, respectively. This assumption of office procedure would work to respect the will ofthe people and avoid the imposition of a non-elected individual to the Governorship of theCounty by the few Members of the County Assembly.145Paragraph 163 of the Report.49 | P a g ei) The human resource element of healthcare provision should betransferred to a Health Service Commission;ii) Money should follow the transfer of the health function to the

Counties;iii) More focus on preventive and primary care;iv) Keep NHIF administrative costs to between 5-10% by incorporatinghealthcare technology, eliminating corruption and increasingproductivity;v) Putting in place a Patient’s Bill of Rights to: take care ofcorruption and inflation of medical bills for vulnerable Kenyans; barhealth facilities from forcefully holding patients who are unable toclear medical bills; impose consequences for misdiagnosis; oblige allhealth facilities to stabilise emergency cases; ensure polite andconsiderable service to all patients;5. Supervise County spending, investment and employment tominimise waste and corruption that compromise devolution, with agreater proportion of County finances being assigned to development, forexample:146i) At least 30% of the County budget for development within thefive-year term be set aside to finance the development of eachward; the County budget for development should respond to specificneeds in the wards rather the granting of lump sum developmentfunds to Counties or Constituencies;ii) The ratio between development spending and recurrent expenditurein the counties should match the national one at 70:30;iii) Strengthen the independence of County Assemblies to be ableto provide proper oversight on the County Executives, to ensurethat the transmission and management of County budgets areinsulated from arbitrary or politically-motivated interference byCounty Executives and that the processes are subjected to rigorouspublic finance management processes;iv) To avoid a bloated workforce, limit the number of people thatmay be employed in the County Government by providing a setnationwide ratio, as a ceiling, between County population andnumber of employees, and fix the maximum number of Ministriesthat a Governor may establish;v) Eliminate duplication of functions and jobs between the Nationaland County Government, and rationalise jobs within the CountyGovernments, especially where there is over-staffing or duplication;146Paragraph 164 of the Report.50 | P a g evi) Stop the abandonment of incomplete projects with each changeof administration by barring the Treasury from releasing monies tothe new Governor before obtaining a list of incomplete projects and aplan for their completion or a detailed explanation from the newGovernor of the legitimate cause for the incomplete project beinghalted;vii) Projects initiated in the final year of an electoral cycle toreceive extra scrutiny from the Controller of Budget, the County

Assembly, the Senate, and all oversight authorities;viii) Strengthen and devolve the office of the Auditor General tooversee Counties’ accounts and to report them in an accessible andstraightforward way;ix) The Controller of Budget to assess County monies to verify andconfirm that they have been applied to the stated objectives beforethe release of the next budgetary allocation;x) Kenya Bureau of Statistics to provide an objective and localisedmeasure of the wellbeing and human security of Kenyans to beused to measure national, County, and Ward performance; andxi) Conditional grants to Counties to encourage collaboration withother counties and the formation of regional blocs to improvedevelopment planning and delivery.6. Counties to focus on economic growth by minimizing red tape andencouraging their residents to be more entrepreneurial and competitive,in order to allow for investment from other parts of the country andabroad to flow into the County.147 This will require that every Countyestablishes and publicises an Entrepreneurship and Investment Codethat it implements in a predictable and effective manner;7. Develop an inter-governmental mechanism to prevent doubletaxation and double regulation at the National and County level.8. Ensure more cohesive Counties by strengthening dialogue and theintegration of communities in the Counties, especially those that aremulti-ethnic, with a focus on ensuring minorities are heard andrespected through: the Office of the Public Participation Rapporteurassisting in designing a more transparent and well-structured publicparticipation framework; using elders to strengthen cohesion andmediate conflicts; more cultural awareness by the County Governments:integration of schools in the County; and more shared development anddialogue projects by communities that have had histories of conflict.147 Paragraphs 158 and 165 of the Report.51 | P a g eIX. PILLAR 9: SAFETY AND SECURITYThe Taskforce recognizes that Kenya is in a dangerous region with continuingthreats of terrorism, failing or fragile states and countries with territorialambitions, police abuses and rogue illegal actions that violate human rights.The Taskforce thus recommends the following changes to ensure safety andsecurity in Kenya:1. Place equal value to every Kenyan life impacted by violence,insecurity and poor safety standards across Kenya, in terms of policeresponse, prevention, investigation and prosecutorial attention, whichcalls for equal distribution of policing resources, prosecutions andprevention efforts;148 a life in an upscale Nairobi suburb should beequally protected as one in poverty-stricken Mathare or Kibra;2. Every incoming President within three months of taking office topublish a comprehensive National Security and Safety Strategy and

renew it two years laterthe strategy should embody a human approachto handling insecurity and violence and be pro-active, preventive,and pre-emptive, while reflecting the priorities and needs of the entireGovernment as well as all sectors of society;1493. Ensure that every Kenyan has lower vulnerability to resourceconflicts, natural and man-made disasters, emergencies and foodinsecurity by putting in place the following measures:150i) Put in place a comprehensive National Emergency, Disaster andCrisis Management Strategy backed by law and that is linked toCounty, sub-County and Ward level disaster response plans that arerenewed periodically;ii) Link the National Disaster Risk system to the Contingencies Fundunder Article 208 of the Constitution by incorporating the sameunder the Act of Parliament operationalising it;iii) Put in place pre-emptive and prompt response strategies tocommon major disasters such as flooding and drought;iv) Clarify on the division of emergency response obligationsbetween the National and County Governments as part of theNational Strategy on emergencies, and link this to the separateNational and County Contingencies Funds;148Paragraph 183 of the Report.149 Paragraph 184 of the Report.150 Paragraph 185 of the Report.52 | P a g ev) Draw County boundaries to maximise sharing of water andpasture and other shared resources to prevent communal resourceconflicts; andvi) Ensure food safety by protecting consumers from food andmedicine from dangerously procured, grown, or developed productsthat harm their health and wellbeing.4. Embrace multiple tools in the country’s counter terrorism strategy,to reduce the pool of recruits into terrorism and delegitimize thestrategies of terrorists as follows:151i) Mainstream and coordinate the prevention of radicalisation andviolent extremism initiatives in the Ministries responsible forhealth, education, youth, culture and heritage, as well as otherrelevant governmental bodies;ii) Defend Kenya against terrorists by implementing regulatedprotective security standards for all sectors, especially highlytrafficked properties owned by the private sector;iii) Invest in innovation and coordination to strengthen every partof Kenya’s counterterrorism system in order to make it worldclassin terms of the tools and policies employed in terrorismprevention;iv) The Victim Protection Trust Fund to give special attention tothe victims of terrorism because their victimisation is often a

terrorist strategy directly intended to intimidate all Kenyans and ourpolitical, social and religious choices;v) Strengthen our national cyber security capabilities, in terms ofcyber security skills, processes, laws, and institutions, especiallybecause of our increasingly digital and online economy;vi) As a foreign affairs strategy to deal with terrorism: reviewdiplomatic relations with state sponsors of terrorism, religiousextremism, and expansionism or irredentism; ensure thatdiplomacy is shaped and resourced to deal with the emergingthreats before they demand a hard security response; and theMinistry of Foreign Affairs be placed in the same cluster as theDepartment of Defence, the National Intelligence Service, andother security organs, in terms of budgetary allocation; andvii) Professionalise and better regulate private security companiesand guards to deliver better service that is more integrated withState security and adheres to higher standards.151 Paragraph 186 of the Report.53 | P a g e5. Strengthen the performance and public-service orientation of theNational Police Service (NPS), as well as supporting the mental healthand wellness of officers by:i) Clarifying Key Performance Indicators for police commandersfrom the level of Inspector General downward and linking this topublicly reported national crime and insecurity statistics per theannual crime and security report from the Ministry of Interiorthat is disaggregated based on counties, gender, and citizenperceptions, for purposes of promotions and incentives in theNational Police Service;ii) Eliminating corruption in recruitment in the NPS by institutingheavy penalties against those corrupting the recruitment process;iii) Creating a transparent and digital human resources system withclear guidelines and processes for promotion and transfer whichmust reflect measurable past performance, including internal coursesand exams as well as citizen complaints of abuse and corruption;iv) Supporting integrity and effectiveness in the NPS by recognisingand rewarding excellence, dedication and sacrifice by police officersand citizens; andv) Put in place accessible and resourced mental health and wellnesscounselling and treatment for police officers, especially those infrontline roles that expose them to extreme trauma, while aiming formeasures that keep families together.6. Secure citizens from personal threats by:152i) Redressing boundary conflicts that threaten national andsocietal security by establishing a commission(s) to addresscurrent boundary conflicts until they a resolved;153ii) Protecting informants, whistleblowers and witnesses particularly

as relates to terrorism, serious transnational crimes, andcorruption;iii) Taking care of pedestrians and cyclists by putting in place a legalrequirement that every new road in an urban area must have asidewalk for pedestrians and specified lanes for cyclists andwith a clear signage in that regard;152 Paragraph 188 of the Report.153 The current inter-county boundary conflicts are between the following Counties: Meru andIsiolo; Meru and Tharaka-Nithi; Baringo and Turkana; Garissa and Tana River; Kisumu andVihiga; Kisumu and Nandi; Laikipia and Samburu; Turkana and West Pokot; West Pokot andTrans Nzoia; Nyandarua and Laikipia; Kitui and Meru; Elgeyo/Marakwet and West Pokot;Makueni, Machakos and Kajiado.54 | P a g eiv) Increasing citizen skills in conflict resolution and mediationthroughout a Kenyan’s educational life by including conflictresolution, negotiation and counselling skills in the curriculumat all levels of primary and secondary education; andv) Prioritising combating gender and sexual violence by focusingand resourcing specific policing and prevention measures againstsexual and gender-based violence.X. COMMISSIONS AND CROSS-CUTTING ISSUES1. Nairobi, the Capital City and not the County154The Taskforce recommends that Nairobi ceases to be a County but rather it beaccorded special status as a Capital City under the control of the NationalGovernment. The Taskforce recognizes that Nairobi is the national capital ofKenya and a diplomatic hub.155 As a diplomatic hub, the attendant agreementsbetween Kenya and international organizations and foreign States are thereforewith the national government and not the county government.156Further, the Taskforce recognizes that Kenyans look at the capital city as theseat of all arms of Government and as a critical location for their civicparticipation in national life. Moreover, the Taskforce reports that themaintenance of Nairobi as a County Government hinders the Commission onRevenue Allocation from coming up with a revenue allocation formula thattakes into account the special status of Nairobi as a national capital and adiplomatic hub and the accompanying demands for public services.157The intended effect of according Nairobi a special status as a Capital Cityrather than a County is to remove the conflict between the County Governmentand the National Government regarding responsibility for the maintenance ofNairobi. This in turn allows the National Government the means to provide the154 Paragraph 190 of the Report.155 Nairobi is an extraterritorial seat of the United Nations (UN), which has Nairobi City hosting

the UN Environment Programme (UNEP) Headquarters, and as such various States haveestablished missions in Nairobi for purposes of representation in UNEP and other UN agenciesin Nairobi.156See e.g., Agreement between the Republic of Kenya and the United Nations regarding theHeadquarters of the United Nations Environment Programme, 26 March 1972<http://wedocs.unep.org/bitstream/handle/20.500.11822/22806/Host%20country%20agreement.pdf?sequence=10&isAllowed=y>157See e.g., Article 12 of the Agreement between the Republic of Kenya and the UnitedNations regarding the Headquarters of the United Nations Environment Programme, 26March 1972 regarding the provision of public services such as water, electricity, gas, heat,sewerage, post, telephone, telegraph, local transportation, drainage, garbage collection, and fireprotection in Nairobi as the headquarters seat of UNEP. The Kenyan Government is to“consider the needs of the UNEP as being of equal importance with those of essential agencies ofthe Government.”55 | P a g epublic services and facilitation necessary to maintain Nairobi as a Capital Cityand as a diplomatic hub. However, the Taskforce recognizes that honouringagreements with international organizations and foreign States by accordingNairobi the special status of a Capital City should not impede the rights of theKenyan people to representation at the ward and parliamentary levels. Thismeans that constituencies and wards within Nairobi will be maintained as theyare, but without a County Government in place.1582. Ethics CommissionThe Taskforce has recommended the establishment of an Ethics Commission,as already highlighted above, in order to separate the obligation to conductcriminal investigations from the obligation to promote and enforce ethicsin Public Service.159 In that regard, the Taskforce recommends the work ofreporting on, promoting and enforcing ethical conduct in the public service betransferred to the said Ethics Commission.What of the Ethics and Anti-Corruption Commission (EACC) already inexistence though? By virtue of Article 79 of the Constitution, the EACC wasestablished via the Ethics and Anti-Corruption Commission Act, 2011(hereinafter the “EACC Act, 2011”)160 as an independent commission with thestatus and powers of a commission under Chapter Fifteen of the Constitution.Its purposes are ensuring compliance with, and enforcement of, the provisionsof Chapter Six of the Constitution on Leadership and Integrity. Having been soestablished, the functions and powers of the EACC as provided under sections11 and 13 of the EACC Act, 2011, plus those under Articles 79 and 252 of

the Constitution do entail work concerning reporting on, promoting andenforcing ethical conduct by public officers. The EACC receives complaints on,and investigates acts of corruption, bribery or economic crimes and unethicalconduct (violation of the Code of Ethics for Public Officers developed by EACC)by public officers, and thereafter refers the matters to the DPP recommending158 Compare this with the status of Washington D.C., the capital city of the United States ofAmerica (U.S.), which, per Article 1, Section 8, Clause 17 of the U.S. Constitution, is notregarded as a state alongside the 50 states comprising the U.S., and how the status ofWashington D.C. as capital city affected the political representation of the interests of itsresidents in the U.S. Federal Government. See Aparna Krishnamoorthy, ‘Why Washington D.C.Is Not a State’ (The Culture Trip, 9 June 2017) <https://theculturetrip.com/northamerica/usa/washington-dc/articles/why-washington-d-c-is-not-a-state/> (where it is statedthat the objective behind not making Washington D.C. a state was that “the Founders’intention was for the nation’s capital to remain autonomous and not subject to political pressurefrom a state government. In other words, the Founders worried that if the capital were to be astate, the members of the federal government would be unduly beholden to the state simply bypower of proximity to the seats. To avoid this, they specifically crafted the Constitution so that theDistrict would not be within a state.”)159 Paragraph 191 of the Report.160 No. 22 of 2011.56 | P a g eprosecution of implicated public officers whenever criminal prosecutionsbecome necessary.1613. Independent Offices and Constitutional CommissionsIn the spirit of ensuring that every organ and arm of Government isaccountable to the people of Kenya, the Taskforce recommends that everyconstitutional commission must have internal accountability systems thatclearly and transparently separate the power of appointment andpromotion from that of interdiction and censure.162The Taskforce has also endeavoured to make recommendations as concernsthe harmonious existence of the constitutional commissions. TheTaskforce has recommended that the Chairpersons of constitutionalcommissions should also be made Chief Executive Officers of thosecommissions in order to ease power struggles between the said commissions.163For example, power struggles have been witnessed between the Salaries andRemuneration Commission and both the Judicial Service Commission and theParliamentary Service Commission and so forth.164In addition, the Taskforce recommends that half of the Commissioners of theChapter 15 constitutional commissions, except the IEBC, do serve on apart-time basis.165 Moreover, the Taskforce recommends that budgetary

allocations to the independent offices and constitutional commissions shouldabide Article 249(3) of the Constitution,166 to enable the commissions tocarry out their constitutional mandates while still subjecting them to stringentreviews by relevant bodies to ensure that they carry out their duties asmandated.1674. Public Finance ManagementThe Taskforce recommends rigorous financial audits that inquire into value formoney and the upholding of sound principles of public finance managementapplicable to every arm of government and every public institution.168161Section 11 (1) of the EACC Act.162 Paragraph 192 of the Report.163 Paragraph 200 of the Report.164See e.g., Judicial Service Commission v. Salaries and Remuneration Commission & another[2018] eKLR; and Judicial Service Commission v. National Assembly & 2 others [2019] eKLR.165 Paragraph 202 of the Report.166Article 249(3) of the Constitution provides that, “Parliament shall allocate adequate fundsto enable each commission and independent office to perform its functions and the budget of eachcommission and independent office shall be a separate vote.”167 Paragraph 203 of the Report.168 Paragraph 193 of the Report.57 | P a g e5. The Directorate of Criminal Investigations (DCI)The Taskforce recommends the strengthening of the DCI to complement theindependence of the criminal-justice system, which includes the Director ofPublic Prosecutions (DPP) and the Judiciary.1696. The Office of the Director of Public Prosecutions (ODPP)The Taskforce recommends an in increase in the resources for the ODPP, toenable effective criminal prosecutions.1707. Regulatory Bodies and Administrative TribunalsThe Taskforce recommends that regulation be made simple, transparent, andpredictable. This calls for rationalising the mandates of regulatory bodies toensure lack of duplication, and to ease transparency, affordability andprompt service to enable higher levels of regulatory compliance.171Moreover, as far regulation is concerned, it is imperative to strengthen theGovernment Chemist to increase its effectiveness in carrying out its mandateand to create a unified and assertive food safety and regulation regulatorybody.172Further, the Taskforce proposes the abolition of the numerous administrativetribunals that have currently been established for each regulatory body andwhich are draining national resources. The Taskforce thus recommends theconsolidation of the administrative tribunals through the creation of oneNational Administrative Appeals Tribunal made up of separate thematicappeals tribunals, for example, on sports, the environment and so on.173

D. CONCLUSIONIn view of the above, a decision has to be made on whether the people of Kenyawill be voting in an entirely new Constitution, or the existing Constitution willbe subjected to a series of amendments to incorporate therein the proposedchanges under the BBI Report. If the later is the case, the process of analysisand classification of the proposed changes should ensue, in light of the threeways of amending the Constitution of Kenya, 2010 as provided under ChapterSixteen of the Constitution. The analysis and classification of the proposedchanges to the Constitution is necessary to ensure that each amendment takesplace in strict adherence to the law.169 Paragraph 194 of the Report.170 Paragraph 195 of the Report.171 Paragraphs 196 and 205 of the Report.172 Paragraphs 197 and 198 of the Report.173 Paragraph 204 of the Report.58 | P a g eNonetheless, some of the proposed changes under the BBI Report call foramendments to existing legislation while some of the changes may actuallynecessitate the enactment of new legislation. Whatever the case, an analysis ofthe said changes may also be required to guide the process of amending orenacting legislation so that the said amendments get to see the light of day.In case of a referendum, the manner of holding referenda on the variousproposed changes under the BBI Report is equally important. What isimperative in this regard is that the referenda reflect the will of the people aspertains to all the changes that will be subjected to a referendum vote. Thiscan best be achieved through sequential voting on each of the proposedchanges as opposed to a single ‘Yes or No’ vote on a single documentamalgamating the varied amendments to the Constitution.The other question is whether the IEBC is ready to conduct a referendum perits mandate under Article 88(4) of the Constitution?174 This is so followingthe resignation of the IEBC Vice-Chairperson, Connie Maina, and three otherIEBC Commissioners (Dr. Roselyn Akombe, Margaret Mwachanya, and PaulKurgat) and the dismissal of the Chief Executive Officer of IEBC, Ezra Chiloba;none of these senior IEBC staff have been replaced so far.175 Only theChairperson of IEBC, Wafula Chebukati, and two other IEBC Commissioners(Abdi Guliya and Boya Molu) remain. So, can the IEBC be stopped fromconducting referenda on constitutional amendments flowing from therecommendations in the BBI Report, despite its current handicap? It seemsnot, according to the reasoning of the Court in the case of Titus Alila & 2others (Suing on their own Behalf and as the Registered Officials of theSumawe Youth Group) v. Attorney General & another,176 where the Courtstated, at paragraphs 70 and 74 to 81 of the decision, that:70. If anything, the invitation by the Petitioners to this court, to stop the

IEBC from conducting a referendum, is what might amount to a violationof the Constitution, if the court were to accede to the said invitation. I sofind because if the Court stopped the IEBC from conducting areferendum, that would be tantamount to stopping them from conductingthe very task that Kenyans had entrusted them with.(...)74. The State Organs to which Kenyans have delegated respectivepowers, must perform their functions in accordance with the174Article 88(4) of the Constitution provides that “The Commission is responsible forconducting or supervising referenda and elections to any elective body or office established bythis Constitution, and any other elections as prescribed by an Act of Parliament...”175See e.g., Michael Chepkwony, ‘Lobby claims IEBC not ready for a referendum’ (StandardDigital, 5 December 2019) <https://www.standardmedia.co.ke/article/2001352062/lobbyclaims-iebc-not-ready-for-referendum>.176[2019] eKLR, High Court Petition No. 22 of2018<http://kenyalaw.org/caselaw/cases/view/182039/.59 | P a g eConstitution. That is the explicit command provided for in Article 1 (1) ofthe Constitution.75. Therefore, it is expected that the IEBC shall perform its functions inrelation to the conduct of a referendum, in accordance with theConstitution. The Court cannot take away that mandate from them. Norcan the Court stop them from carrying out the said function.76. And if the time comes when a referendum is to be conducted, IEBCshall derive guidance from the Constitution and the Elections Act.77. The IEBC shall not seek the guidance of the court on how to do theirjob.78. And the Court shall not interfere in that process unless it will bedemonstrated that it was being done in a manner that violates theConstitution and the relevant statutes.79. It is speculative to imagine that the IEBC was incapable ofperforming its functions in accordance with the Constitution.80. This court rejects the invitation to given orders which areanticipatory in nature.81. Accordingly, the Petition is rejected.The above notwithstanding, my higher concern is on the ultimateimplementation of the recommendations in the BBI Report, once they areenacted into law. This is because, as the analysis reveals, some of the desiredchanges are currently part of our laws but what is lacking is the political will toimplement them. I am therefore wary that if the implementation process for theBBI Report is not thought out carefully and planned from the beginning up tothe implementation stage, we may once again end up with beautiful laws thatare ineffective in reality. As such, the manner of implementing the proposed

changes must linger in the minds of the experts involved in the implementationprocess, so that we can for once enact laws that are followed and equallyrespond to our practical realities as Kenyans, that is, laws that actually work.