Open memo to Justice committee on amending Article 9

On May 21, an advertisement appeared in the media inviting comments on a proposed change to Article 90 of the Constitution.

It is regrettable that Parliament consistently finds it hard to give the public enough time to consider proposed changes in the law, and formulate their input. On this occasion, you have been generous enough to give us a week — or it is just six days? The advertisement gives the deadline as Monday May 28 – yet May 28 is Tuesday.

In addition, this is a proposed amendment to the Constitution, not just to an ordinary law. The Constitution says that after a constitutional amendment is introduced into a House in the First Reading it cannot receive its Second Reading for 90 days (Article 256(1)(c)).

The intention is obviously to give the public plenty of time to understand, consider and respond. Why then do you give us only six or seven days to respond? Apparently, the Bill received its first reading on April 3 this year. So you cannot proceed to the next Reading until July 3 at the earliest. Admittedly, it has already been referred to your committee (on April 3). But if you needed public feedback by late May, why did you not ask us for it in early April?

Article 256(2) says that Parliament must “publicise any Bill to amend this Constitution, and facilitate public discussion about the Bill”. Is this little advertisement the best you can do to “publicise” the Bill and “facilitate” our participation? Or are you trying to suppress public participation?


The Memorandum of so-called “Objects and Reasons” at the end of the Bill reveals that the intention is to change the current system of “elected” list members in Parliament and county assemblies to one of the truly party-nominated members.

In 2013, very few people – including parties and the IEBC – understood the system that Article 90 sets up. Even now, most voters and many politicians, still don’t. Under the old constitution, the National Assembly had 12 “nominated members” – put forward by political parties after the election. How many of these a party could nominate depended on how many constituency seats it had won? So if a party had got 50 per cent of the seats, it would nominate six of those 12 members.

The Committee of Experts had proposed in the draft constitution that members taken from lists should be enough to ensure at least one-third members of all assemblies were women. They also proposed minimum percentages for persons with disability and youth. The MPs in Naivasha changed this, providing for just 12 members in the National Assembly and 16 women (and four for youth and persons with disability) in the Senate. They wanted them to be called “nominated” – the idea and the word they were used to.

When the Committee of Experts got the draft back, they felt obliged to keep the numbers, but they insisted that these extra members were elected. So parties are supposed to produce their lists before the elections. The Elections Act tries to ensure this is done well in advance — at least 45 days before the general election. The idea is that the public should look at those lists, and evaluate them: Are these the sort of people they want to represent them (especially important for women, youth or persons with disability)?

A voter’s assessment of the lists should affect how they vote for their MP, senator or MCA. In county assembly elections, this is particularly important because they have so many list members (in some counties half the members are from lists).

Does this seem a strange idea? It is common in many countries. In some countries, every member comes into parliament on a party list – a voter votes for a party and its list. The only chance people have to affect the content of the list is to reject the whole list – in other words, vote for another party. For this to make sense, parties must publicise their lists – and civil society and the media should analyse the lists. In fact, parties will select people for their lists precisely to appeal to voters. In Kenya, the parties don’t publicise their lists – because they have other motives than appealing to voters.

In several countries (including Germany and New Zealand) list members are in addition to constituency members – like here. But there, people, and the parties make sure the voters know who is on the lists.

This was a democratic idea that has not worked well here.

The proposed constitutional amendment is clearly intended to take the power of choice away from the people and give it to the parties. Parties will choose who is to be “nominated” without bothering whether the people would approve of them. Presumably, they want to be allowed to choose people who have just lost constituency or ward elections, giving candidates rejected by the people a compensation prize of being a “nominated member”. They may want to choose other individuals for equally bad reasons. What a disgrace if our MPs take away the choice from the voters.


Yes, this is a private member’s Bill. But the Constitution places on Parliament the duty to ensure that proper procedure is respected, including public participation. I suggest that your committee should reject this Bill unceremoniously for want of a proper explanation.

Every Bill must have a “Memorandum of Objects and Reasons”. Most Bills in Bunge have rather weak memorandums, but this one is particularly poor. Every one of its four short paragraphs is defective.

For a start, it does not give either object or reasons. It tells us that the purpose is to align the Constitution with another proposed reform of the law – namely of the Elections Act. It does not tell us why the reform of the Elections Act is proposed (I have just tried to show what I believe is the reason).

Second, it says that it does not limit fundamental rights and freedoms. But it does: It aims to take away the right that voters have had to express a view on the lists prepared for the National Assembly, the Senate and the county assemblies – to produce the members who are usually if wrongly, called “nominated members”. This would reduce the right that every adult citizen has to vote in any election (under Article 38).

Third, it contains contradictory statements on whether it concerns the counties. In fact, it should not even mention this, because every constitutional amendment must be passed by the National Assembly and the Senate. Whether it concerns counties makes no difference. And finally, it has contradictory statements on whether this is a “money Bill…” This is because money Bills cannot start in the Senate.

This is sheer laziness and sloppiness and risks making a laughing stock of Kenya’s legislative process. Clearly, Bunge should organise “Lawmaking 101” for new MPs.


The change proposed is to take a few words out of Article 90. But, after this is done, Article 90 would still talk about “elections” of list members. “Election” means the choice of their representatives by the people – not a choice by the parties. The change anticipated to the Elections Act would make the choice of list members depend only on selection by the parties. In fact, since Article 90 would still talk of elections, the proposed change in the Elections Act would be unconstitutional.

To repeat: The intention is to take away the power of the people to choose their representatives. This diminishes the sovereignty of the people – proudly proclaimed in Article 1. But any constitutional change that relates to the sovereignty of the people needs a referendum (Article 255).

Parliament should be strengthening, not weakening, elections, and upholding, not undermining, the people’s sovereignty.


This article was first published by the Star Newspaper on 25th May 2019. 

Photo: The Star Newspaper


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