Mjadala: Maoni kuhusu Katiba Mpya ya Kenya

[Ab-Titchaz]

By OLIVER MATHENGE Posted Tuesday, November 17 2009 at 22:30


Kenya's draft constitution was unveiled on Tuesday, kicking off a month of public debate on how Kenya will be governed in future. The document proposes wide-ranging changes, including creating a presidency with fewer powers, a prime minister with real power, government at three levels and an national parliament with two chambers.

To set the stage, the Committee of Experts used a video of the election violence to remind the assembled leaders and the public why it was necessary and urgent to reform the government. The video showed, in gory detail, a mob hacking a man to death. It brought tears to the eyes of many of the hundreds of people who attended the launch.

The giant ballroom of the Kenyatta International Conference Centre was deathly silent as the audience was transported to a shameful past. "The time has come for Kenya to make hard choices, just like we have made hard choices when coming up with the draft. We must read and debate this draft with the reality of what happened last year in our minds," said Dr Ekuru Aukot, before the video was played.

The meeting was attended by top government leaders, among them Prime Minister Raila Odinga, Vice-President Kalonzo Musyoka and Justice minister Mutula Kilonzo. Other ministers as well as MPs also attended. A new constitution was the best way to give the country a new beginning, Dr Aukot told the gathering.

The committee's vice-chairperson, Ms Atsango Chesoni, spoke about Kenya's quest for equitable democracy, stretching from the drafting of the country's first constitution in Lancaster. She also honoured Kenyans who lost their lives in different eras including the Saba Saba riots, the 1997 elections, the Wagalla Massacre and the aftermath of the 2007 elections.

She said the country had the opportunity to atone for all the suffering by ensuring that a new constitutional order was in place before the 2012 elections. The committee's chairman, Mr Nzamba Kitonga, described the document launched yesterday as "a working draft to facilitate dialogue among Kenyans".

"Kenyans have for over two decades demanded a new comprehensive constitution. This is because even the minimum reforms that are now been referred to as stabilising reforms have only gone to mutilate the current Constitution further," he said. He warned against taking the same path as the 2005 referendum which he said left "no winners but a country that was polarised". He appealed to Kenyans, especially the clergy and the politicians, to approach the debate soberly.

On the executive, which is contentious, Mr Kitonga said Kenyans wanted to continue electing their president but have a prime minister to manage the everyday running of the government. They also expressed the need to have a parliament that would offer the necessary checks and balances.

"The document we unveiled before you has tried to respond to these needs by creating a dignified, stately executive presidency with sufficient authority to oversee, unite and protect the country but without the baggage of the day-to-day running of government which previously exposed the office to abuse and misuse of power," he said.

The team tried to come up with a draft largely acceptable to all Kenyans and while there were "voices of disquiet", particularly with regard to the kadhi courts, Kenyans had not categorised it as a contentious issue as long as it remains "in the current constitutional form."

At a press conference later, Mr Kitonga said the country should have a new constitution by April if the timeline after the launch is followed. The review experts identified 10 principles to guide the process that will culminate in a document that will among other things: unite and strengthen Kenya, constrain executive power, decentralise power, avoid acrimonious elections of winner-take-all, ensure a stable and peaceful country.

After the one-month debate, the experts will have 21 days to incorporate the views of Kenyans in the draft. They will then turn it over to the Parliamentary Select Committee on the constitution leaving the quest for a new constitution to politicians.

Prime Minister Raila Odinga promised to "read very meticulously" the draft and "offer views along with other Kenyans." He told the gathering that Priscilla Abwao, the only woman delegate at the Legislative council (Legco) at Lancaster House in 1962, died on Tuesday morning.

A minute of silence was observed in her honour. "It is time to bite the bullet and provide Kenya with this much-awaited constitution. Let us remember the heroes of the second liberation. Let us not disappoint them. Let us continue with the journey to the mountain top and plant the flag of liberation," he said.

He asked the public to read the document with an open mind and give suggestions to be included in the final draft. "As we debate the draft, let us not suffer from nostalgia that this is how it has been done, let us not be tied to what we have known but we should be ready and willing to accommodate each other's views," he said.

SOURCE: DAILY NATION.

 

[Ab-Titchaz]

PDF COPY.

 

[MwanaFalsafa1]

Ngoja nita kuja kusoma hii thread na pdf file vizuri ili nitoe hoja zangu. Ila kwa kuanzia nataka niseme hivi. tatizo la Africa siyo katiba zetu ambazo zina kasoro bali pia kuheshimu hizo katiba. Sasa kama wahusika hawa heshima katiba hata ibadilishwe mara ngapi hakuna kita kacho badilika. Sawa wana taka kubadilisha katiba ila wataiheshimu hiyo katiba mpya? je hiyo katiba mpya itakua kwa manufaa ya nani(wananchi wote au baadi ya watu)? tusipo heshimu katiba zetu hata tubadilishe kila mwaka hatuta fika popote.

 

[Lekanjobe Kubinika]

Tunaitaka hiyo na Tanzania.

Leka

 

[Keil]

Mkuu Mwanafalsafa,

Mabadiliko ya Katiba ni muhimu sana. Katiba inatakiwa iweke mazingira ambayo yatawafanya Rais, Waziri Mkuu na Baraza la Mawaziri waweze kuiheshimu. Lazima iweke mazingira ambayo yatajenga heshima.

Kwa mfano lazima kuwe na mechanism ambayo itahakikisha kila mmoja anakuwa watch-dog wa mwenzake. Mfano, DPP akishindwa ku-deliver lazima kuwe na mazingira ya kumshughulikia, IGP akiboronga kuwe na provisions za kumshughulikia, DG wa PCCB akichemsha ashughulikiwe kulingana na Katiba. Tatizo tulilo nalo sasa, watu kama hao wakichemsha hakuna chombo cha kuwahoji, matokeo yake mtu pekee wanaemuogopa na kumwangalia ni Rais kwa kuwa ndiye aliyewateua single handedly. Lakini kama kungekuwa na vyombo vya kuwashughulikia, akina Feleshi tungeisha wauliza kwanini KAGODA haendi mahakamani, Hoseah tungeishamuuliza kwanini alisema richmond ni clean.

Nchi ambazo viongozi wanaogopa/heshimu Katiba, siyo kwamba wao wenyewe ni waoga/wanajiheshimu, bali Katiba imeweka mazingira ambayo Rais wa Nchi kabla hajafanya maamuzi yoyote lazima ajiulize mara mbili kama maamuzi hayo yataweka rehani urais wake ama la.

Apart from that, composition ya Bunge ni muhimu sana na hasa kama madaraka ya Rais yamepunguzwa. Kama 2/3 ya Wabunge wanatoka chama kimoja na ndiyo condition ya kupitisha mambo, then chama chochote chenye majority kitaliburuza Bunge na kupitisha mambo yake mengi. Kwa hiyo pamoja na hayo mabadiliko, lakini lazima composition ya Bunge isiwe dominated na chama kimoja na hasa kama chama chenyewe ndiyo kinachoongoza serikali.

Kwa kuzingatia uchanga wa vyama vya upinzani, Katiba inatakiwa kuweka provision ambayo itaruhusu chombo kingine apart from Bunge kuwashughulikia wale ambao watakuwa wameshindwa ku-deliver na hasa kama kuna evidence iliyo wazi. Provision hii ni muhimu ili Bunge lisitumike vibaya na chama kilicho na wabunge wengi wanaofika 2/3. Kwa mwendo huo Bunge likiwa halina nguvu basi chombo hicho kilicho nje ya Bunge kitafanya kazi hiyo.

Mabadiliko ya Katiba yanatakiwa yaendane na civic education. Civic education ni muhimu sana kwa wananchi ili wajue haki zao. Wananchi wakijua haki zao watahakikisha Mbunge anafanya kazi kwa maslahi ya wananchi ama Taifa na siyo kwa maslahi ya serikali, ama ya binafsi ama ya chama chake.

Wananchi wa Tanzania wangekuwa wanaelewa haki zao, tusingekuwa na wabunge ambao bila aibu wanasimama Bungeni kutetea mafisadi. Siku wakija kuomba kura wangehojiwa kwanini walisimama kutetea maslahi ya serikali/chama ama watu binafsi. Kwa hiyo hata kama Bunge linakuwa dominated na wabunge wa chama kimoja, wabunge wake wangekuwa na woga kwamba ikifika wakati wa kwenda kuomba kura hawawezi kupewa kura kwa kuwa walishindwa kazi.

 

[Sophist]

".constitution......unite and strengthen Kenya, constrain executive power, decentralise power, avoid acrimonious elections of winner-take-all, ensure a stable and peaceful country"

Hongera Kenya, these are the very basic principles summarising a constitution as orderly 'political' document, supreme 'legal' document and sacred 'administrative' document in a republic.

 

[Namtih58]

Nimeipitia na kwa maoni yangu ni nzuri sana, isipokuwa vitu kadhaa

viwili ambavyo naona ni muhimu sana ni:

1. Fair hearing 73. (4)

Evidence obtained in a manner that violates any right or fundamental
freedom set out in the Bill of Rights shall be excluded if the admission
of that evidence would render the trial unfair or otherwise be
detrimental to the administration of justice.

Hiyo sehemu ya nyekundu sikubaliani nayo, serikali itatafuta visababu vya kufinya watu makende kama bush alivyo fanya! hii ni loop hole ambayo inafaa kufungwa.
​

2. Qualifications and disqualifications for election as member
127. (2) (e)

A person is disqualified from being elected a member of Parliament if that person--
is serving a sentence of imprisonment of at least six months

Hapo mimi naona inafaa kuwa has served, hatutaki ukora bunge. Utapata mbakaji yuko bunge, unatarajia atapitisha sheria dhidi ya wabakaji?

​

Anyway hayo ni yale ambayo nimeona yanatatiza kwa sasa pengine kina smatta mtachangia ama kuongeza, nikiona mengine nitayaleta yajadiliwe.

 

[Ngambo Ngali]

PDF COPY.

Kwa wale wavivu wa kusoma kwenye computer wanaweza kupata nakala yao bure kwenye Daily Nation ya leo

 

[Ab-Titchaz]

Nimeipitia na kwa maoni yangu ni nzuri sana, isipokuwa vitu kadhaa

viwili ambavyo naona ni muhimu sana ni:

1. Fair hearing 73. (4)

Evidence obtained in a manner that violates any right or fundamental
freedom set out in the Bill of Rights shall be excluded if the admission
of that evidence would render the trial unfair or otherwise be
detrimental to the administration of justice.

Hiyo sehemu ya nyekundu sikubaliani nayo, serikali itatafuta visababu vya kufinya watu makende kama bush alivyo fanya! hii ni loop hole ambayo inafaa kufungwa.
​

2. Qualifications and disqualifications for election as member
127. (2) (e)

A person is disqualified from being elected a member of Parliament if that person--
is serving a sentence of imprisonment of at least six months

Hapo mimi naona inafaa kuwa has served, hatutaki ukora bunge. Utapata mbakaji yuko bunge, unatarajia atapitisha sheria dhidi ya wabakaji?

​

Anyway hayo ni yale ambayo nimeona yanatatiza kwa sasa pengine kina smatta mtachangia ama kuongeza, nikiona mengine nitayaleta yajadiliwe.

Namtih58,

Heshima mbele,

Kuhusu hio hoja ya kwanza naomba uisome katika muktadha ilioandikwa.
Kwamba jamaa akiwa kotini na akisema kua 'alibanwa makende' na ushahidi
upo, then hio evidence of admission inatupwa nje. Hapa mie nawapa
hongera jamaa waliotilia shinikizo umihimu wa Bill of Rights ndani ya katiba.
Katiba ya mkoloni ambayo Kenya inatumia hadi leo had no provision for
the rights of the people as it were.

Hoja ya pili kuhusu serving time jela, ni muhimu pia kufahamu mazingira
ya nchi zetu za kiafrika. Kenya ni mfano mzuri ambapo wapinzani wengi wa
serikali za Kenyatta & Kibaki walitiwa jela simply for being on the wrong side
of the political equation. Kwa hivyo ukisema mambo ya if they did time in
jail, then you will lock a bunch of them out of office. Na pia that will pave
way for a michevious president to kill peoples political careers kwa kuwafunga arbitrarily.

Mie bado nazidi kuichambua hii kitu na nitatoa hoja nyengine baaden.

Shukran kwa wote wanaotoa michango yao kuhusu hii topic.

 

[Namtih58]

Mkuu Ab-T

Kwa hiyo point ya kwanza, nakuelewa lakini sikubaliani na wewe. Afrika tunakujua, tunayo chance ya kufunga loopholes nyingi sana kwenye katiba. Sasa kwangu mimi I strongly feel ikija ni mambo ya kuviolate rights za watu hapafai kuwa na IF, ni marufuku, tukianza kuongeza "ikiwa" kesho utasikia eti imekuwa "A matter of interpretation" na wakati wana "Interpret" kuna mtu annatiwa vijiti chini ya makucha.

Tusiache loopholes, kama hufai ku-violate haki za binadamu yeyote, basi pasiwepo na IF, sababu tukiweka IF ni kusema kuna nyakati ambazo si hatia kuviolate haki za binadamu ambayo sikubaliani.

Kuhusu walio serve time jela, tayari waliodhulumiwa wanaweza kuenda kotini na sentene zao zikawa reversed, hapo basi kama ni kweli ulifingwa na hukuwa na kosa, fight it legitimately, lakini tusi kose kutunga Katiba nzuri eti sababu ya yaliyofanyika. Hata tunaweza tukaweka grandfather clause.
Hii ni kama ilivyo mtindo, jamaa akishikwa ofisi moja akifanya uhuni eti anahamishwa badala ya kufutwa kazi. Sasa nani kasema anakoenda wa-huko ndo wanamtaka. Jamani hizi njia mkato ndo zina haribu serikali Afrika.

 

[MaxShimba]

PDF COPY.

Mukulu, asante kwa hii copy.

Dual citizenship
21.​

​

(1) A person who is a citizen does not lose citizenship by reason only of
acquiring the citizenship of another country.
(2) A person who as a result of acquiring the citizenship of another
country ceased to be a Kenyan citizen is entitled, on application, to
regain Kenyan citizenship.
(3) Parliament shall enact legislation providing for conditions upon which
citizenship may be granted to individuals, other than individuals​

referred to in clauses (1) and (2), who are citizens of other countries.

 

[Ab-Titchaz]

Mukulu, asante kwa hii copy.

Dual citizenship
21. (1) A person who is a citizen does not lose citizenship by reason only of
acquiring the citizenship of another country.
(2) A person who as a result of acquiring the citizenship of another
country ceased to be a Kenyan citizen is entitled, on application, to
regain Kenyan citizenship.
(3) Parliament shall enact legislation providing for conditions upon which
citizenship may be granted to individuals, other than individuals​

referred to in clauses (1) and (2), who are citizens of other countries.

Hii kitu wakenya wengi wamefurahia sana maana it has been long
overdue. Kilichokua kina-uweka usiku ni ile hisia ya rais kudhani kua
wote walio ughaibuni wanapigia upinzani kura...very primitive thoughts
if you may ask me.

 

[Ab-Titchaz]

Hot issues in draft constitution​

Committee of Experts chairman Nzamba Kitonga during the launch of harmonised Draft Constitution on Tuesday​

By Standard Team ​

A sigh of relief swept through the country after release of the Harmonised Draft Constitution, but this was immediately followed by hard questions on some of its radical proposals.

After the Committee of Experts unfurled the draft for 30 days of public debate, interest narrowed to proposed powers for State President and Prime Minister, and the relationship between the two offices.

Stirring interest was the proviso for the removal of PM by Parliament on the strength of a simple majority vote by members of the whole House.

Also attracting immediate interest was the question of whether a president elected by a popular vote - a minimum of 50 per cent nationally - should enjoy less or equal power and influence as the PM to be picked by Parliament.

It also appeared public debate will revolve around the proposal to empower the often-divided and quarrelsome Parliament to check the presidency and the premiership, including vetting of their appointees.

The country is bound to pay special attention to the clause scrapping the office of Vice-President and its replacement with a Deputy State President, who must have been a running mate of the winning presidential candidate.

Of particular significance also is the additional requirement that he or she cannot be dropped in case there is a re-run, and will automatically take over power if the presidency for any reason falls vacant halfway through term.

The nation will also be watching how Parliament, though empowered, will handle the clause in the draft, which allows the public to recall non-performing MPs.

No confidence vote

Other radical proposals that could rivet the attention of Kenyans, who will finally cast the final vote on what the draft should look like, include the proviso that in case of a vote-of-confidence against the PM, the entire Cabinet resigns.

In this category also falls the proposal that the President, who must have garnered more than half of votes cast, and at least 25 per cent in most of the regions, can be impeached by Parliament for breach of the Constitution. At least two-thirds of the House must, however, vote against him on the floor.

Focus will also be on the financial implication of proposed two-chamber House (Senate and Parliament) and two-chamber devolved government (region and county).
There will also be debate on the radical proposal for removal of such titles associated with government since colonial period as chiefs, DOs, DCs and PCs. The draft proposes the abolition of the Provincial Administration, "to avoid conflict or overlap with regional governments".

There is also the proposed removal of all judges and subjecting them to rigorous vetting, and possible appointment to the Cabinet of people who are not MPs, and have not been associated with regional and parliamentary politics.

Those who spoke out on the draft expressed fear of the powers given to Parliament over the Cabinet.

Constitutional lawyers said governments, which are at the mercy of Parliament, hardly function.

"Conflict can come when the President and Prime Minister come from different parties," said LSK chairman Okong'o Omongeni.

The PM is cushioned by the proposed constitution because he will be the leader of the majority party in Parliament, pick members, and also chair Cabinet meetings.

One party

But critics claim harmony may only exist where the President and PM come from one party. Some MPs expressed varying opinions on provisions for dismissing the PM. Lugari MP Cyrus Jirongo said Parliament should not arrogate itself powers to fire the country's two top leaders.

Lands Assistant Minister Sylvester Wakoli, however, said the number of MPs required to remove the PM was lower, which could be abused.

"The office of the Prime Minister and the President are constitutional offices. There must be stringent conditions for removal of one to curb manipulation and ensure security of tenure for the holders," argued Wakoli.

Wakoli, however, expressed optimism that the 30 days for debate on the draft would enable the people and leaders to address the ‘anomaly'.

Some said even though the Draft Constitution has good provisions for improving governance danger lurks ahead.

The PM is supposed to submit to the Speaker of the National Assembly a notice of his resignation, and that of his deputy, Cabinet ministers and deputy ministers. If he fails to give the notice within seven days, the State President shall have the right to dismiss him or her from office.

The potential danger in the exercise as seen by some is that, this provision also allows the leader of the second largest party in Parliament to be appointed PM if the leader of the largest party fails to win the confidence of MPs.

This could allow smaller parties to gang up against the biggest party in Parliament, and depose its leader as Prime Minister.

This could set off a vicious circle of parliamentary coups against any government constituted as often happens in Israel, Italy and Japan.

On impeachment of the President, Turkana Central MP Ekwe Ethuro said the two-thirds majority requirement was in order, as the holder gets elected directly by the people and the same threshold should apply for PM.

Ethuro explained the President and PM have defined roles in the draft, although the PM was answerable to Parliament.

"The clause to have the PM removed by a simple majority will make the holder of the office more accountable. I am confident this will enhance performance," said Ethuro.
Garsen MP Danson Mungatana said the requirement should be supported. "The Constitution is a sacred document and will ensure those at the top do not take things for granted. They must deliver," said Mungatana.

Fail to deliver

Nominated MP Mohammed Affey said the clause was acceptable. "It is alright since PM will be elected by MPs who should kick him out if he fails to deliver," argued Affey.
Kibwezi MP Philip Kaloki said the PM would be at the mercy of the political party or coalition with the majority of members in the House.

Eldama Ravine MP Moses Lessonett said the proposal was welcome, as it would enhance checks and balances in Government.

He said the only contentious issue was who should wield Executive powers between the President and PM.

Nairobi lawyer Ashford Muriuki said any provision that can have the effect of destabilising the country should be discouraged.

"51 per cent is too low and the threshold should be like that for a constitutional amendment, which is a two-thirds majority," he said.

SOURCE; THE EASTANDARD

 

[Ab-Titchaz]

On behalf of JF Members and crew I would like to wish the
people of the Republic of Kenya all the best as they endeavour
to seek a new constitution that will better their lives as a
people and for the greater good of East Africa as a region.​

Tuko pamoja.​

Hii kali......​

We, the people of Kenya-​

ACKNOWLEDGING the supremacy of the Almighty God of all creation:​

HONOURING those who heroically struggled to bring freedom and justice to our land:​

PROUD of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation:​

RESPECTFUL of the natural environment that is our heritage, and determined to sustain it for the benefit of future generations:​

COMMITTED to nurturing and protecting the well-being of the individual, the family, communities and the nation:​

RECOGNIZING the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law:​

EXERCISING our sovereign and inalienable right to determine the form of governance of our country and having participated fully in the making of this Constitution:​

ADOPT, enact, and give to ourselves and to our future generations, this Constitution.​

GOD BLESS KENYA

 

[Smatta]

god bless kenya

 

[Ab-Titchaz]

Muhimu:

State and religion​

​

10.

(1) State and religion shall be separate.

(2) There shall be no State religion.

(3) The State shall treat all religions equally.​

​

 

[Ab-Titchaz]

Hapa nadhani wameboronga kidogo na itabidi ku-fiksi lau wengine hawataki:

Family​

42.
(1) The family is the natural and fundamental unit of society and the

necessary basis of social order.
(2) Every adult has the right to marry a person of the opposite sex, based upon the free consent of the parties.
(3) Every adult has the right to found a family.
(4) Parties to a marriage are entitled to equal rights at the time of the
marriage, during the marriage and at the dissolution of the marriage.
(5) Parliament shall enact legislation that recognizes-
(a) marriages concluded under any tradition, or system of religious,
personal or family law; and
(b) personal and family law under any tradition, or adhered to by
persons professing a particular religion,to the extent that such marriages or systems are consistent with this Constitution.​

 

[Namtih58]

Nina swali wakuu

Who should hold executive powers? The one who is directly elected, or the one who is indirectly elected.

Nadhani kwa katiba yoyote ni muhimu sana kulijadili.

 

[nomasana]

may GOD BLESS the land of my fore fathers KENYA. i love her down to the last grain of sand. i think a tear just formed on my eye after typing that.

nomasana.

 

[Ab-Titchaz]

Nina swali wakuu

Who should hold executive powers? The one who is directly elected, or the one who is indirectly elected.

Nadhani kwa katiba yoyote ni muhimu sana kulijadili.

Namtih58

​

Kujibu swali lako, as it is right now na pia katika hii katika mpya, the
executive powers are held by the President in some form of totality.

Ukienda chapter 12 ya hii draft constitution utakuta hiki kipengee.



State functions of the State President

158.

​

(1) The President shall-

(a) address the opening of each newly elected House of
Parliament;

(b) address a special sitting of Parliament once every year;

(c) once every year-
​

(i) report, in an address to the nation, on all the measures taken and the progress achieved in the realization of the national values, principles and goals set out in Chapter Three; and

(ii) publish in the Gazette, the details of the measures and
progress referred to in sub-paragraph (i).
​

(2) The State President, in accordance with this Constitution and the law,
shall appoint and may dismiss-

(a) the Cabinet, including the Prime Minister, the Deputy Prime
Minister and the Ministers;

(b) the Deputy Ministers;

(c) the judges of the Superior Courts; and

(d) any other State or public officer whom this Constitution requires
the State President to appoint

​

The President kwa hivyo ina maana remains Head of State, Commander in Chief of the Armed Forces, Chair of the National Security Council, na anawapa vibaraka wafuatao ajira.

• The Attorney General
• Chief Justice
• Judges in the Supreme Court, Appeals Court, High Court, Constitutional Courts
• Director of Prosecutions
• Chief of General Staff and all Military Commanders (Navy, Army, Air Force)
• Police and Paramilitary Police heads
• Criminal Investigations and NSIS heads
• Economic and Social Council members
• Governor of Central Bank
• Auditor General
• All Ambassadors and diplomats
• The Prime Minister and Deputy PM
  
• Commissions of Inquiry into any national issues
• Prisons boss
• Public Defender
• And still retains the powers to grant mercy to convicts
• Lead State Functions
• Represent Kenya in Heads of State Meetings and Conferences

Kwa maoni yangu this is too much power to be vested in one individual but unfortunately it is the landmark of many African Governments. The appointments I have highlighted in RED should be done through the Parliament or by consultations between the Prime Minister and the President or should be given to the Prime Minister.

Hapa bado zege linakorogwa tu.
​