A Citizen’s Perspective On The Harmonised Draft Constitution Of Kenya – Securing Human, Economic, Social and Cultural Rights Are The Only Basis For The Establishment of A State And A Constitution To Govern It.
Nov 26th, 2009 by Mars Group Kenya
A Citizen’s Perspective On The Harmonised Draft Constitution Of Kenya – Securing Human, Economic, Social and Cultural Rights Are The Only Basis For The Establishment of A State And A Constitution To Govern It.
Kenya is a Sovereign Republic: The Harmonized Draft Constitution has described Kenya as a Sovereign Republic which is founded on Principles of Good Governance through Multi party democracy, participatory governance, transparency and accountability, separation and devolution of powers, respect for human rights and fundamental freedoms and the Rule of Law.
The purpose of establishing a State and a Constitution: To secure the basic human, economic, social and cultural rights is the purpose of establishing a State and a Constitution. The Constitution declares the Rights of the Individuals and groups and makes the state responsible for guaranteeing those rights. These Rights can be found in the Bill of Rights in Chapter 5 of the current Constitution and in Chapter 6 of the harmonised draft Constitution. The Bill of Rights is not merely an integral part of Kenya’s democratic State; it is the fundamental basis for the establishment of the State. In other words, apart from our securing our Rights as Citizens, there is no other purpose or reason to create a State or a Constitution.
Rights are inalienable and possessed by Kenyans: The purpose of the recognition and protection of Human Rights and fundamental freedoms in the Constitution is because these rights are inalienable and possessed by all Kenyans without regard to their social status, origin or persuasion. The State is therefore required by Kenyan citizens to use all State resources and Institutions to enhance these Rights and the State is prohibited from using its resources and Institutions to curtail these Rights as guaranteed to Kenyans. Rather, all resources owned by the State belong to Kenyans and are to be used for the benefit of Kenyan Citizens in protecting their rights.
All Kenyans are born equal: Fundamental Rights and Freedoms of Kenyans Citizens are given by God, and not by the State. Kenyans have Human Rights because Kenyans are human beings. All these rights are recognised by the entire world and restate that all human beings are born equal. Kenyans through their Government have signed and ratified International Human Rights, Civil and political Liberties, social economic and cultural rights conventions and these international laws are applicable in Kenya. Therefore the State does not give these Rights and cannot legally or lawfully take them away. Our Constitution is supposed to restate these Rights and protect them at all times.
All sovereign power in Kenya belongs to the Citizens of Kenya: All sovereign power in Kenya belongs to the Citizens of Kenya. Citizens exercise this power through the Constitution of the Republic of Kenya. The Constitution is the supreme Law of the Republic that binds all State Organs at all levels of Government and all persons. The Citizens of Kenya may exercise their sovereign power either directly or through their democratically elected representatives, but the sovereign power at all times belongs to the Citizens of Kenya. Everything must be for the good of Kenyan Citizens.
When people live or work together, they agree on how they will run their affairs: Kenya is a defined geographical territory under one government and one set of laws, with its own currency, army, national symbols, system of taxation, etc. It is sovereign – that is, it is politically independent from other states and not subject to outside control. The people who live in Kenya are either citizens of Kenya or citizens of other states legally permitted to live and/or work in Kenya. When people live or work together, they need to agree on how they will run their affairs. In a political state, as well as in some organisations, this agreement takes the form of a CONSTITUTION.
The legislature, the executive and the judiciary: The Kenyan governmentis the machinery through which the state operates. It is made up of the legislature, the executive and the judiciary. The legislature makes laws, the executive enforces them and the judiciary interprets and applies them. In a democratic society, the purpose of a lawfully elected government is to carry out the people’s will.
In a democracy, citizens share the job of governing their state: A good description of the meaning of democracy is that given by Abraham Lincoln, the US President who abolished slavery in America, in his famous Gettysburg Address, read at Gettysburg, Pennsylvania on November 19, 1863, during the American Civil War: ‘a government of the people, by the people, for the people.’ This implies that in a democracy, citizens share the job of governing their state. Some citizens serve in institutions set up by the Constitution and other laws under the Constitution. But these citizens are not special – they only have special duties and responsibilities to the rest of their fellow citizens. Most people know democracy as a form of government in which policy is decided by the favourite choice of the majority, usually by elections or referendum, open to its citizens. And the policy is implemented by the citizens who work in State institutions.
The Goals of a Democratic Society: Democracy dictates that the following goals are achieved in a democratic Society:-
- The greatest possible freedom for all;
- A just society;
- The same rules for all;
- Equality before the law;
- Respect for the rule of law; and
- Equal opportunities for all.
Democracy needs open-mindedness and agreement between the citizens: In a democracy, cooperation by Citizens is needed, because elections divide the population into ‘winners’ and ‘losers’. It is implied that whoever loses, allows the winners to take power peacefully and without argument. Democracy needs open-mindedness and agreement between the citizens, especially when one group is bigger than all the others. In a democracy, such a majority should not ignore the wishes and needs of members of smaller groups or minorities. Minorities include not just ethnic groups but disadvantaged and people with disabilities. At all times Citizens must act in the interest of their fellow Citizens, that way Citizens will guarantee their own interests.
Every citizen shares the responsibility for civic awareness: Democracy involves providing opportunities for all citizens without discrimination, and sometimes it also means helping some people – those disadvantaged by history, physical disability, or by factors that they can not control such as natural disasters. Democracy also asks citizens to do certain things or make sure that certain things are done. For example, every citizen shares the responsibility for civic awareness, democratic care, and working together for the good of the country. This very important particularly now that the Harmonised Draft Constitution is now a public document open for public comment.
Democracy provides a base for honesty, fairness and equality: In a democracy, everyone is equal. Democracy turns away any forms of bias and provides a base for honesty, fairness and equality. Justice is a set of rules that provide each person in humanity with basic rights. These include: Human rights, the rule of law, Economic justice, and Gender fairness.
Rule of Law: The idea of the ‘rule of law’ is based on the idea of government by law. This means that no one is above the law; this basically means that all Kenyans are equal before the law and are subject to it. So no one can be punished unless they have broken the law and have been tried through the proper legal process. So, Leaders have to abide by the law. Any Kenyan who makes choices has to make them according to the say so of the law.
All Kenyans are equal before the law and are subject to it: From the President and the Prime Minister and their deputies to the citizen with no public position: Also, the law should apply to everyone equally without any favouritism on the basis of gender, race, ethnicity, religion, political association, colour, disability, social status and other physical or social characteristics.
Economic justice means that Kenyan citizens can get rich legally: Economic justice is the equal sharing, distribution and allocation of socio-economic wealth among all citizens. Economic justice means that Kenyan citizens can get rich legally for the good of the individual and/or for the common good. It requires the state to be fair when allocating public resources for development. Economic justice includes the right to:
- Fair and favourable conditions of work;
- Equal pay for work of equal value;
- The right to form and belong to a trade union;
- The right to go on a strike; and
- The right to enjoy social security.
Citizens give their authority through their elected representatives to be taxed through their income and consumption. The taxes collected by the State are meant to benefit
Fundamental Freedoms and Rights protected by the current Constitution of Kenya:
- The right to life,
- The right to personal freedom,
- Protection against slavery and forced labour,
- Protection from inhuman treatment,
- Protection from property being taken away illegally,
- Protection against illegal search or entry,
- The right to the protection of the law,
- Freedom of conscience,
- Freedom of expression,
- Freedom of association and assembly,
- Freedom of movement, and
- Freedom from discrimination
The Harmonised Draft Constitution restates these rights and adds further categories of rights including political, economic, social and cultural fundamental rights.
Political freedom is the ability to:
* the right to participate in political activity without restriction
* hold your own views and talk about what you think and believe,
* relate and socialize
* Move freely without obstruction.
Economic freedom is:
* the ability to own and use property,
* the chance to work and provide for your living, and
* Freedom from forced labour and slavery.
Social freedom is:
* Treating people fairly,
* Privacy
* No cruel treatment.
These democratic freedoms are found in Chapter 6 “The Bill Of Rights” in the Harmonised Draft Constitution of Kenya.
Nothing in the Constitution can take away any of your Rights: The Bill of Rights is essential reading if citizens wish to understand the Draft Constitution. Nothing in the Constitution can take away any of your Rights. The Constitution creates State Organs and delegates Authority to State organs in order to enhance and protect the Rights of Citizens. Nothing in the Constitution can take Sovereign power away from the Citizens of Kenya. All delegated power is exercised on behalf of the Citizens who elect and choose those who they wish to exercise that power on their behalf.
Constitution is not meant to benefit Politicians at the expense of Citizens: The Constitution is not meant to benefit Politicians at the expense of Citizens. It is therefore important for Citizens to understand the Draft for themselves and not be swayed by Politicians. At the end it is Kenyans who will decide what they want at the referendum. We need a Constitution that will determine how we want to live together as Citizens and how we wish to be governed.
Are we satisfied with what the draft has to say on these views?
Therefore, when reading the Draft, all Citizens must ask the question, “does this provision protect my Rights? Does this provision enhance my Rights?”The test must at all times be whether you the Citizen of Kenya are in charge of your affairs. Has the Draft addressed the views of Kenyans collected by the Constitution of Kenya Review Commission in 2002? Are we satisfied with what the draft has to say on these views? What do you want added or removed from the Draft?
Send your views to the Committee of Experts on Constitutional review at the contacts below:
Delta House, Chiromo road, Westlands, Nairobi Kenya.
P.O Box 8703 – 00200
Telephone: 020 443 214 – 16
Email: info@coekenya.go.ke
Here is a Summary of Kenyan Views on the Constitution and the chapters where these views are reflected in the Harmonised Draft Constitution
(Summary of Kenyan views as reported in September 2002 by the Constitution of Kenya Review Commission)
1. Give us the chance to live a decent life: with our fundamental needs of food, water, clothing, shelter, security and basic education met by our own efforts and the assistance of government
2. We want a fair system of access to land for the future and justice for the wrongs of the past
3. Let us have more control over the decisions that affect our lives, bring government closer to us – and let us understand better the decisions we can’t make ourselves but which affect us deeply
4. We don’t want power concentrated in the hands of one person
5. We want our MPs to work hard, respect us and our views – and we want the power to kick them out if they don’t
6. We want to be able to choose leaders who have qualities of intelligence, integrity and sensitivity that make them worthy to lead us.
7. We want an end to corruption
8. We want police who respect citizens – so they can be respected by them
9. We want women to have equal rights and gender equity
10. We want children to have a future worth looking forward to – including orphans and street children
11. We want respect and decent treatment for the disabled.
12. We want all communities to be respected and free to observe their cultures and beliefs
13. We assert our rights to hold all sections of our government accountable – and we want honest and accessible institutions to ensure this accountability
Down Load the harmonised Draft Constitution here
thanks Mars Group. in my view`the kadhi’s section in the harmonized draft should be reviewed. and the current chapter be maintained. i mean the entire`section need not to be debated on let us maintain the old way of the current constitution.
kenneth
KARI Marsabit