Blog of the International Journal of Constitutional Law

Kenya process keeps chugging along

The Kenyan drafting process continues to move forward, with the debate in parliament due to wrap up this week. The MPs, having received the latest draft from the Committee of Experts and the Parliamentary Select Commission, have apparently made some changes toward consolidation of local government, a major issue in the drafting debates. Some of the MPs have pushed for more local units, while others have pushed consolidation.

Over the course of the drafting process, the number of units has gradually been reduced from 77 to 47 and now to 25. The initial draft had a scheme of relatively powerful counties and weak regions; this was replaced with a scheme of counties only, and the current proposal from the parliament is to have only regions. Whatever their name, some consolidation may be a good idea so as to avoid costly duplication of government structures and to encourage multi-ethnic governance within each constituent unit.

The local units will be the basis for formation of the upper house. Each region under the current proposal will send two representatives to the Senate, and will be joined by 10 Senators set aside for minority communities. A proposal to set aside seats for women was replaced with a requirement that each region send one male and one female representative, which may be a more workable scheme as it does not require a separate electoral process, and will ensure the over 40% of the Senate is female.

Another ongoing issue of debate is abortion. We had mistakenly stated that the draft prohibited abortion, but in fact the Right to Life clause in Article 26(4) states more loosely: “Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.” This last clause in particular seems to allow wide scope for parliamentary modification. It is not clear from media reports whether the MPs have agreed on any changes.

Should parliament approve, the document will go forward to a referendum, for which voter registration has just begun.


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