Proposed

CONSTITUTION OF KENYA

As revised by the Committee of Experts on Constitutional Review taking into account the
consensus of the Parliamentary Select Committee on Constitutional Review in accordance
with section 33(1) of the Constitution of Kenya Review Act, 2008 and presented to the
Parliamentary Select Committee on Constitutional Review pursuant to section 33(2) of the
Act.

23th February, 2010

 ARRANGEMENT OF ARTICLES

PREAMBLE

CHAPTER ONE

SOVEREIGNTY OF THE PEOPLE AND SUPREMACY OF THIS CONSTITUTION

1—Sovereignty of the people

2—Supremacy of this Constitution
3—Defence of this Constitution

CHAPTER TWO

THE REPUBLIC

4—Declaration of the Republic

5—Territory of Kenya
6—Devolution and access to services
7—National, official and other languages
8—State and religion
9—National symbols and national days
10—National values and principles of governance
11—Culture

CHAPTER THREE

CITIZENSHIP

12—Entitlements of citizens
13—Retention and acquisition of citizenship
14—Citizenship by birth
15—Citizenship by registration
16—Dual citizenship
17—Revocation of citizenship
18—Legislation on citizenship

CHAPTER FOUR

THE BILL OF RIGHTS

Part 1—General provisions relating to the Bill of Rights

19—Rights and fundamental freedoms

2
 20—Application of Bill of Rights
21—Implementation of rights and fundamental freedoms
22—Enforcement of Bill of Rights
23—Authority of courts to uphold and enforce Bill of Rights
24—Limitation of rights or fundamental freedoms
25—Rights and freedoms that may not be limited

Part 2—Rights and fundamental freedoms

26—Right to life
27—Equality and freedom from discrimination
28—Human dignity
29—Freedom and security of the person
30—Slavery, servitude and forced labour
31—Privacy
32—Freedom of conscience, religion, belief and opinion
33—Freedom of expression
34—Freedom of the media
35—Access to information
36—Freedom of association
37—Assembly, demonstration, picketing and petition
38—Political rights
39—Freedom of movement and residence
40—Protection of right to property
41—Labour relations
42—Environment
43—Economic and social rights
44—Language and culture
45—Family
46—Consumer rights
47—Fair administrative action
48—Access to justice
49—Rights of arrested persons
50—Fair hearing
51—Rights of persons detained, held in custody or imprisoned

Part 3—Specific application of rights

52—Interpretation of Part
53—Children
54—Persons with disabilities
55—Youth
56—Minorities and marginalised groups
57—Older members of society

Part 4 — State of emergency

58—State of emergency

Part 5—Kenya National Human Rights and Equality Commission

59—Kenya National Human Rights and Equality Commission

3
 CHAPTER FIVE

LAND AND ENVIRONMENT

Part 1—Land

60—Principles of land policy

61—Classification of land
62—Public land
63—Community land
64—Private land
65—Landholding by non-citizens
66—Regulation of land use and property
67—National Land Commission
68—Legislation on land

Part 2— Environment and natural resources

69—Obligations in respect of the environment

70—Enforcement of environmental rights
71—Agreements relating to natural resources
72—Legislation regarding the environment

CHAPTER SIX

LEADERSHIP AND INTEGRITY

73—Responsibilities of leadership
74—Oath of office of State officers
75—Conduct of State officers
76—Financial probity of State officers
77—Restriction on activities of State officers
78—Citizenship and leadership
79—Legislation to establish the ethics and anti-corruption commission
80—Legislation on leadership

CHAPTER SEVEN

REPRESENTATION OF THE PEOPLE

Part 1—Electoral system and process

81—General principles for the electoral system
82—Legislation on elections
83—Registration as a voter
84—Candidates for election and political parties to comply with code of conduct
85—Eligibility to stand as independent candidate
86—Voting
87—Electoral disputes

Part 2—Independent Electoral and Boundaries Commission

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 88—Independent Electoral and Boundaries Commission
89—Delimitation of electoral units
90—Allocation of party list seats

Part 3—Political Parties

91—Basic requirements for political parties

92—Legislation on political parties

CHAPTER EIGHT

THE LEGISLATURE

Part 1—Establishment and role of Parliament

93—Establishment of Parliament
94—Role of Parliament
95—Role of the National Assembly
96—Role of the Senate

Part 2—Composition and membership of Parliament

97—Membership of the National Assembly

98—Membership of the Senate
99—Qualifications and disqualifications for election as member of Parliament
100—Promotion of representation of marginalised groups
101—Election of members of Parliament
102—Term of Parliament
103—Vacation of office of member of Parliament
104—Right of recall
105—Determination of questions of membership

Part 3—Offices of Parliament

106—Speakers and Deputy Speakers of Parliament

107—Presiding in Parliament
108—Party leaders

Part 4—Procedures for enacting legislation

109—Exercise of legislative powers

110—Bills concerning county government
111—Special Bills concerning county governments
112—Ordinary Bills concerning county governments
113—Mediation committees
114—Money Bills
115—Presidential assent and referral
116—Coming into force of laws

Part 5—Parliament’s general procedures and rules

117—Powers, privileges and immunities

5
 118—Public access and participation
119—Right to petition Parliament
120—Official languages of Parliament
121—Quorum
122—Voting in Parliament
123—Decisions of Senate
124—Committees and Standing Orders
125—Power to call for evidence

Part 6—Miscellaneous

126—Location of sittings of Parliament

127—Parliamentary Service Commission
128—Clerks and staff of Parliament

CHAPTER NINE

THE EXECUTIVE

Part 1—Principles and Structure of the National Executive

129—Principles of executive authority

130—The National Executive

Part 2—The President and Deputy President

131—Authority of the President

132—Functions of the President
133—Power of mercy
134—Exercise of presidential powers during temporary incumbency
135—Decisions of President
136—Election of the President
137—Qualifications and disqualifications for election as President
138—Procedure at presidential election
139—Death before assuming office
140—Questions as to validity of presidential election
141—Assumption of office of President
142—Term of office of President
143—Protection from legal proceedings
144—Removal of President on grounds of incapacity
145—Removal of President by impeachment
146—Vacancy in the office of President
147—Functions of the Deputy President
148—Election and swearing-in of Deputy President
149—Vacancy in the office of Deputy President
150—Removal of Deputy President
151—Remuneration and benefits of President and Deputy President

Part 3—The Cabinet

152—Cabinet
153—Decisions, responsibility and accountability of the Cabinet
6
 153—Secretary to the Cabinet
155—Principal Secretaries

Part 4—Other offices

156—Attorney-General
157—Director of Public Prosecutions
158—Removal and resignation of Director of Public Prosecutions

CHAPTER TEN

JUDICIARY

Part 1—Judicial authority and legal system

159—Judicial authority
160—Independence of the Judiciary
161—Judicial offices and officers
162—System of courts

Part 2—Superior Courts

163—Supreme Court
164—Court of Appeal
165—High Court
166—Appointment of Chief Justice, Deputy Chief Justice and other judges
167—Tenure of office of the Chief Justice and other judges
168—Removal from office

Part 3—Subordinate courts

169—Subordinate courts
170—Kadhis’ Courts

Part 4—Judicial Service Commission

171—Establishment of the Judicial Service Commission

172—Functions of the Judicial Service Commission
173—Judiciary Fund

CHAPTER ELEVEN

DEVOLVED GOVERNMENT

Part 1—Objects and principles of devolved government

174—Objects of devolution
175—Principles of devolved government

Part 2—County governments

176—County governments
7
 177—Membership of county assembly
178—Speaker of a county assembly
179—County executive committees
180—Election of county governor and deputy county governor
181—Vacancy in the office of county governor
182—Functions of county executive committees
183—Urban areas and cities
184—Legislative authority of county assemblies

Part 3—Functions and powers of county governments

185—Respective functions and powers of national and county governments

186—Transfer of functions and powers between levels of government

Part 4—The boundaries of counties

187—Boundaries of counties

Part 5—Relationships between governments

188—Cooperation between national and county governments

189—Support for county governments
190—Conflict of laws

Part 6—Removal, suspension and dissolution of county governments

191—Removal of a county governor

192—Suspension of a county government

Part 7—General

193—Qualifications for election as member of county assembly

194—Vacation of office of member of county assembly
195—County assembly power to summon witnesses
196—Public participation and county assembly powers, privileges and immunities
197—County assembly gender balance and diversity
198—County government during transition
199—Publication for enactment of legislation
200— Legislation on Chapter

CHAPTER TWELVE
PUBLIC FINANCE

Part I—Principles and framework of public finance

201—Principles of public finance

202—Equitable sharing of national revenue
203—Equitable share and other financial laws
204—Equalisation Fund
205—Consultation on financial legislation affecting counties

Part 2—Other public funds

8
 206—Consolidated Fund and other public funds
207—Revenue Funds for county governments
208—Contingencies Fund

Part 3—Revenue-raising powers and the public debt

209—Power to impose taxes and charges

210—Imposition of tax
211—Borrowing by national government
212—Borrowing by counties
213—Loan guarantees by national government
214—Public debt

Part 4—Revenue allocation

215—Commission on Revenue Allocation

216—Functions of the Commission on Revenue Allocation
217—Division of revenue
218—Annual Division and Allocation of Revenue Bills
219—Transfer of equitable share

Part 5—Budgets and spending

220—Form, content and timing of budgets

221—Budget estimates and annual Appropriation Bill
222—Expenditure before annual budget is passed
223—Supplementary appropriation
224—County appropriation Bills

Part 6—Control of public money

225—Financial control
226—Accounts and audit of public entities
227—Procurement of public goods and services

Part 7— Financial officers and institutions

228—Controller of Budget
229—Auditor-General
230—Salaries and Remuneration Commission
231—Central Bank of Kenya

CHAPTER THIRTEEN

THE PUBLIC SERVICE

Part 1—Values and principles of public service

232—Values and principles of public service

Part 2—The Public Service Commission

233—The Public Service Commission

9
 234—Functions and powers of the Public Service Commission
235—Staffing of county governments
236—Protection of public officers

Part 3—Teachers Service Commission

237—Teachers Service Commission

CHAPTER FOURTEEN

NATIONAL SECURITY

Part 1—National Security Organs

238—Principles of national security

239—National security organs
240—Establishment of the National Security Council

Part 2—The Kenya Defence Forces

241—Establishment of Defence Forces and Defence Council

Part 3—The National Intelligence Service

242—Establishment of National Intelligence Service

Part 4—The Kenya Internal Security Service

243—Establishment of the Kenya Internal Security Service

244—Objects and functions of the Kenya Internal Security Service
245—Command of the Kenya Internal Security Service
246—Kenya Internal Security Service Commission
247—Other internal security services

CHAPTER FIFTEEN

COMMISSIONS AND INDEPENDENT OFFICES

248—Application of Chapter
249—Objects, authority and funding of commissions and independent offices
250—Composition, appointment and terms of office
251—Removal from office
252—General functions and powers
253—Incorporation of commissions and independent offices
254—Reporting by commissions and independent offices

CHAPTER SIXTEEN

AMENDMENT OF THIS CONSTITUTION

255—Amendment of this Constitution

10
 256—Amendment by parliamentary initiative
257—Amendment by popular initiative

CHAPTER SEVENTEEN

GENERAL PROVISIONS

258—Enforcement of this Constitution

259—Construing this Constitution
260—Interpretation

CHAPTER EIGHTEEN

TRANSITIONAL AND CONSEQUENTIAL PROVISIONS

261—Consequential legislation
262—Transitional and consequential provisions
263—Effective Date
264—Repeal of previous constitution

SCHEDULES

First Schedule Counties

Second Schedule National symbols
Third Schedule National Oaths and affirmations
Fourth Schedule Distribution of functions between National and the county
governments
Fifth Schedule Legislation to be enacted by Parliament
Sixth Schedule Transitional and consequential provisions

11
 PREAMBLE

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 environment, which 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––

RECOGNISING 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 this Constitution to ourselves and to our future generations.

GOD BLESS KENYA

12
 CHAPTER ONE

SOVEREIGNTY OF THE PEOPLE AND SUPREMACY OF THIS CONSTITUTION

Sovereignty of the people

1. (1) All sovereign power belongs to the people of Kenya and shall be exercised
only in accordance with this Constitution.

(2) The people may exercise their sovereign power either directly or through
their democratically elected representatives.

(3) Authority under this Constitution is delegated to the following State organs,
which shall perform their functions in accordance with this Constitution––

(a) Parliament and the legislative assemblies in the county governments;

(b) the national executive and the executive structures in the county Comment [PK1]: Should this refernce
Governors?
governments; and

(c) the judiciary and independent tribunals.

(4) The sovereign power of the people is exercised at— Comment [PK2]: Requires information
concerning the decisions on Devolution, which I do
not have.
(a) the national level; and

(b) the county level.

Supremacy of this Constitution

2. (1) This Constitution is the supreme law of the Republic and binds all persons
and all State organs at both levels of government.

(2) No person may claim or exercise State authority except as authorised under
this Constitution.

(3) The validity or legality of this Constitution is not subject to challenge by or

before any court or other State organ.

(4) Any law, including customary law, that is inconsistent with this
Constitution is void to the extent of the inconsistency, and any act or
omission in contravention of this Constitution is invalid.

(5) The general rules of international law shall form part of the law of Kenya.

13
 (6) Any treaty or convention ratified by Kenya shall form part of the law of
Kenya under this Constitution.

Defence of this Constitution

3. (1) Every person has an obligation to respect, uphold and defend this
Constitution.

(2) Any attempt to establish a government otherwise than in compliance with

this Constitution is unlawful.

14
 CHAPTER TWO

THE REPUBLIC

Declaration of the Republic

4. (1) Kenya is a sovereign republic.

(2) The Republic of Kenya shall be a multi-party democratic state founded on

the national values and principles of governance mentioned in Article 10.

Territory of Kenya

5. Kenya consists of the territory and territorial waters comprising Kenya on

the effective date, and any additional territory and territorial waters as
defined by an Act of Parliament.

Devolution and access to services

6. (1) The territory of Kenya is divided into the counties mentioned in the First
Schedule.

(2) The governments at the national and county levels are distinct and inter-
dependent and shall conduct their mutual relations on the basis of
consultation and cooperation.

(3) A national State organ shall ensure reasonable access to its services in all
parts of the Republic, so far as it is appropriate to do so having regard to the
nature of the service.

National, official and other languages

7. (1) The national language of the Republic is Kiswahili.

(2) The official languages of the Republic are Kiswahili and English.

(3) The State shall––

(a) promote and protect the diversity of language of the people of Kenya;
and

(b) promote the development and use of indigenous languages, Kenyan

sign language, Braille and other communication formats and
technologies accessible to persons with disabilities.

15
State and religion

8. There shall be no State religion.

National symbols and national days

9. (1) The national symbols of the Republic are—

(a) the national flag;

(b) the national anthem;

(c) the coat of arms; and

(d) the public seal.

(2) The national symbols are as mentioned in the Second Schedule.

(3) The national days are—

(a) Madaraka Day, to be observed on 1st June;

(b) Mashujaa Day, to be observed on 20th October; and

(c) Jamhuri Day, to be observed on 12th December.

(4) A national day shall be a public holiday.

(5) Parliament may enact legislation prescribing other public holidays, and
providing for observance of public holidays.

National values and principles of governance

10. (1) The national values and principles of governance in this Article bind all
State organs, State officers, public officers and all persons whenever any of
them—

(a) applies or interprets this Constitution;

(b) enacts, applies or interprets any law; or

(c) makes, or implements public policy decisions.

(2) The national values and principles of governance include—

(a) patriotism, national unity, sharing and devolution of power, the rule
of law, democracy and participation of the people;

(b) human dignity, equity, social justice, inclusiveness, equality, human

rights, non-discrimination and protection of the marginalised;

16
 (c) good governance, integrity, transparency and accountability; and

(d) sustainable development.

Culture

11. (1) This Constitution recognises culture as the foundation of the nation and as
the cumulative civilization of the Kenyan people and nation.

(2) The State shall—

(a) promote all forms of national and cultural expression through

literature, the arts, traditional celebrations, science, communication,
information, mass media, publications, libraries and other cultural
heritage;

(b) recognise the role of science and indigenous technologies in the

development of the nation; and

(c) promote the intellectual property rights of the people of Kenya.

(3) Parliament shall enact legislation to—

(a) ensure that communities receive compensation or royalties for the use
of their cultures and cultural heritage; and

(b) recognise and protect the ownership of indigenous seeds and plant
varieties, their genetic and diverse characteristics and their use by the
communities of Kenya.

17
 CHAPTER THREE

CITIZENSHIP

Entitlements of citizens

12. (1) Every citizen is entitled to—

(a) the rights, privileges and benefits of citizenship, subject to the limits
provided or permitted by this Constitution; and

(b) a Kenyan passport and any document of registration or identification

issued by the State to citizens.

(2) A passport or other document mentioned in clause (1) (b) may be denied,
suspended or confiscated only in accordance with an Act of Parliament that
satisfies the criteria mentioned in Article 24.

Retention and acquisition of citizenship

13. (1) Every person who was a citizen immediately before the effective date
retains the same citizenship status as of that date.

(2) Citizenship may be acquired by birth or registration.

(3) Citizenship is not lost through marriage or the dissolution of marriage.

Citizenship by birth

14. (1) A person is a citizen by birth if on the day of the person’s birth, whether or
not the person is born in Kenya, either the mother or father of the person is
a citizen.

(2) Clause (1) applies equally to a person born before the effective date,
whether or not the person was born in Kenya, if either the mother or father
of the person is or was a citizen.

(3) Parliament may enact legislation limiting the effect of clauses (1) and (2) on
the descendents of Kenyan citizens who are born outside Kenya.

(4) A child found in Kenya who is, or appears to be, less than eight years of
age, and whose nationality and parents are not known, is presumed to be a
citizen by birth.

18
 (5) A person who is a Kenyan citizen by birth, and has ceased to be a Kenyan
citizen because the person acquired citizenship of another country, is
entitled on application to regain Kenyan citizenship.

Citizenship by registration

15. (1) A person who has been married to a citizen for a period of at least seven
years is entitled on application to be registered as a citizen.

(2) A person who has been lawfully resident in Kenya for a continuous period
of at least seven years, and who satisfies the conditions prescribed by an
Act of Parliament, may apply to be registered as a citizen.

(3) A child who is not a citizen, but is adopted by a citizen, is entitled on

application to be registered as a citizen.

(4) Parliament shall enact legislation establishing conditions on which

citizenship may be granted to individuals who are citizens of other
countries.

(5) This Article applies to a person as from the effective date, but any
requirements that must be satisfied before the person is entitled to be
registered as a citizen shall be regarded as having been satisfied irrespective
whether the person satisfied them before or after the effective date, or
partially before, and partially after, the effective date.

Dual citizenship

16. A citizen by birth does not lose citizenship by acquiring the citizenship of
another country.

Revocation of citizenship

17. (1) If a person acquired citizenship by registration, the citizenship may be

revoked if—

(a) the person acquired the citizenship by fraud, false representation or

concealment of any material fact;

(b) the person has, during any war in which Kenya was engaged,
unlawfully traded or communicated with an enemy or been engaged
in or associated with any business that was knowingly carried on in
such a manner as to assist an enemy in that war;
19
 (c) within five years after registration, has been convicted of an offence
and sentenced to imprisonment for a term of three years or longer; or

(d) at any time after registration, has been convicted of treason, or of an

offence for which––

(i) a penalty of at least seven years imprisonment may be

imposed; or

(ii) a more severe penalty may be imposed.

(2) The citizenship of a person who was presumed be a citizen by birth, as

contemplated in Article 14 (4), may be revoked if––

(a) the citizenship was acquired by fraud, false representation or

concealment of any material fact by any person;

(b) the nationality or parentage of the person becomes known, and

reveals that the person was a citizen of another country; or

(c) the age of the person becomes known, and reveals that the person was
older than eight years when found in Kenya.

Legislation on citizenship

18. Parliament shall enact legislation—

(a) prescribing procedures by which a person may become a citizen;

(b) governing the entry into and residence in Kenya;

(c) providing for the status of permanent residents;

(d) providing for voluntary renunciation of citizenship;

(e) prescribing procedures for revocation of citizenship;

(f) prescribing the duties and rights of citizens; and

(g) generally giving effect to the provisions of this Chapter.

20
 CHAPTER FOUR

THE BILL OF RIGHTS

Part 1—General provisions relating to the Bill of Rights

Rights and fundamental freedoms

19. (1) The Bill of Rights is an integral part of Kenya’s democratic state and is the
framework for social, economic and cultural policies.

(2) The purpose of recognising and protecting human rights and fundamental
freedoms is to preserve the dignity of individuals and communities and to
promote social justice and the realisation of the potential of all human
beings.

(3) The rights and fundamental freedoms in the Bill of Rights—

(a) belong to each individual and are not granted by the State;

(b) do not exclude other rights and fundamental freedoms not in the Bill
of Rights, but recognised or conferred by law, except to the extent
that they are inconsistent with this Chapter; and

(c) are subject only to the limitations contemplated in this Constitution.

Application of Bill of Rights

20. (1) The Bill of Rights applies to all law and binds all State organs and all
persons.

(2) Every person shall enjoy the rights and fundamental freedoms in the Bill of
Rights, to the greatest extent consistent with the nature of the right or
fundamental freedom.

(3) In applying a provision of the Bill of Rights, a court shall—

(a) develop the law to the extent that it does not give effect to a right or
fundamental freedom; and

(b) adopt the interpretation that most favours the enforcement of a right
or fundamental freedom.

(4) In interpreting the Bill of Rights, a court, tribunal or other authority shall
promote—
21
 (a) the values that underlie an open and democratic society based on
human dignity, equality, equity and freedom; and

(b) the spirit, purport and objects of the Bill of Rights.

(5) In applying any right under Article 43, if the State claims that it does not
have the resources to implement the right, a court, tribunal or other
authority shall be guided by the following principles––

(a) it is the responsibility of the State to show that the resources are not
available;

(b) in allocating resources, the State shall give priority to ensuring the
widest possible enjoyment of the right or fundamental freedom
having regard to prevailing circumstances, including the vulnerability
of particular groups or individuals; and

(c) the court, tribunal or other authority may not interfere with a decision
by a State organ concerning the allocation of available resources,
solely on the basis that it would have reached a different conclusion.

Implementation of rights and fundamental freedoms

21. (1) It is a fundamental duty of the State and every State organ to observe,
respect, protect, promote and fulfil the rights and fundamental freedoms in
the Bill of Rights.

(2) The State shall take legislative, policy and other measures, including the
setting of standards, to achieve the progressive realisation of the rights
guaranteed under Article 43.

(3) All State organs and all public officers have the duty to address the needs of
vulnerable groups within society, including women, older members of
society, persons with disabilities, children, youth, members of minority or
marginalised communities, and members of particular ethnic, religious or
cultural communities. Comment [PK3]: I am uncertain what the CoE
decision was with respect to clauses (4) to (7)

(4) The State shall enact and implement legislation to fulfil its international
obligations in respect of human rights and fundamental freedoms.

22
Enforcement of Bill of Rights

22. (1) Every person has the right to institute court proceedings claiming that a
right or fundamental freedom in the Bill of Rights has been denied, violated
or infringed, or is threatened.

(2) In addition to a person acting in their own interest, court proceedings under
clause (1) may be instituted by––

(a) a person acting on behalf of another person who cannot act in their
own name;

(b) a person acting as a member of, or in the interest of, a group or class
of persons;

(c) a person acting in the public interest; or

(d) an association acting in the interest of one or more of its members.

(3) The Chief Justice shall make rules providing for the court proceedings
mentioned in this Article, which shall satisfy the criteria that—

(a) the rights of standing provided for in clause (2) are fully facilitated;

(b) formalities relating to the proceedings, including commencement of

the proceedings, are kept to the minimum, and in particular that the
court shall, if necessary, entertain proceedings on the basis of
informal documentation;

(c) no fee may be charged for commencing the proceedings;

(d) the court, while observing the rules of natural justice, shall not be
unreasonably restricted by procedural technicalities; and

(e) an organisation or individual with particular expertise may, with the

leave of the court, appear as a friend of the court.

(4) The absence of rules contemplated in clause (3) does not limit the right of
any person to commence court proceedings under this Article, and to have
the matter heard and determined by a court.

23
Authority of courts to uphold and enforce the Bill of Rights

23. (1) The High Court has jurisdiction, in accordance with Article 165, to hear and
determine applications for redress of a denial, violation or infringement of,
or threat to, a right or fundamental freedom in the Bill of Rights.

(2) Parliament shall enact legislation to give original jurisdiction in appropriate

cases to subordinate courts to hear and determine applications for redress of
a denial, violation or infringement of, or threat to, a right or fundamental
freedom in the Bill of Rights.

(3) In any proceedings brought under Article 22, a court may grant appropriate
relief, including—

(a) a declaration of rights;

(b) an injunction;

(c) a conservatory order;

(d) a declaration of invalidity of any law that denies, violates, infringes,

or threatens a right or fundamental freedom in the Bill of Rights and
is not justified under Article 24;

(e) an order for compensation; and

(f) an order of judicial review.

Limitation of rights and fundamental freedoms

24. (1) A right or fundamental freedom in the Bill of Rights shall not be limited
except by law, and then only to the extent that the limitation is reasonable
and justifiable in an open and democratic society based on human dignity,
equality and freedom, taking into account all relevant factors, including—

(a) the nature of the right or fundamental freedom;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the need to ensure that the enjoyment of rights and fundamental
freedoms by any individual does not prejudice the rights and
fundamental freedoms of others; and

24
 (e) the relation between the limitation and its purpose and whether there
are less restrictive means to achieve the purpose.

(2) Despite clause (1), a provision in legislation limiting a right or fundamental

freedom —

(a) in the case of a provision enacted or amended on or after the effective

date, is not valid unless the legislation specifically expresses the
intention to limit that right or fundamental freedom and the nature and
extent of the limitation;

(b) shall not be construed as limiting the right or fundmental freedom

unless the provision is clear and specific about the right or freedom to
be limited and the nature and extent of the limitation; and

(c) shall not limit the right or fundamental freedom so far as to derogate
from its core or essential content.

(3) The State or a person seeking to justify a particular limitation shall

demonstrate to the court, tribunal or other authority that the requirements of
this Article have been satisfied.

(4) The provisions of this Chapter on equality shall be qualified to the extent
strictly necessary for the application of Muslim law before the Kadhi’s
courts, to persons who profess the Muslim religion, in matters relating to
personal status, marriage, divorce and inheritance.

(5) Despite clause (1) and (2), a provision in legislation may limit the
application of the rights or fundamental freedoms in the following
provisions to persons serving in the Kenya Defence Forces or the National
Police Service––

(a) Article 31 – Privacy;

(b) Article 36 – Freedom of association;

(c) Article 37 – Assembly, demonstration, picketing and petition;

(d) Article 41 – Labour relations;

(e) Article 43 – Economic and social rights;

(f) Article 49 – Rights of arrested persons

25
Fundamental Rights and freedoms that may not be limited

25. Despite any other provision in this Constitution, the following rights and
fundamental freedoms shall not be limited––

(a) freedom from torture and cruel, inhuman or degrading treatment or

punishment;

(b) freedom from slavery or servitude;

(c) the right to a fair trial; and

(d) the right to an order of habeas corpus.

Part 2 –Rights and fundamental freedoms

Right to life

26. (1) Every person has the right to life.

(2) The life of a person begins at conception.

(3) A person shall not be deprived of life intentionally, except to the extent
authorised by this Constitution or other written law.

(4) 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.

Equality and freedom from discrimination

27. (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 fundamental
freedoms.

(3) Women and men have the right to equal treatment including the right to
equal opportunities in political, economic, cultural and social spheres.

(4) The State shall not discriminate directly or indirectly against any person on
any ground, including race, sex, pregnancy, marital status, health status,
ethnic or social origin, colour, age, disability, religion, conscience, belief,
culture, dress, language or birth.

26
 (5) A person shall not discriminate directly or indirectly against another person
on any of the grounds mentioned or contemplated in clause (4).

(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 action programmes and policies designed to redress any
disadvantage suffered by individuals or groups because of past
discrimination.

(7) Any measure taken under clause (6) shall adequately provide for any
benefits to be on the basis of genuine need.

(8) In addition to the measures contemplated in clause (6), the State shall take
legislative and other measures to implement the principle that not more than
two-thirds of the members of elective or appointive bodies shall be of the
same gender.

Human dignity

28. Every person has inherent dignity and the right to have that dignity
respected and protected.

Freedom and security of the person

29. Every person has the right to freedom and security of the person, which
includes the right not to be—

(a) deprived of freedom arbitrarily or without just cause;

(b) detained without trial, except during a state of emergency, in which

case the detention is subject to Article 58;

(c) subjected to any form of violence from either public or private

sources;

(d) subjected to torture in any manner, whether physical or psychological;

(e) subjected to corporal punishment; or

(f) treated or punished in a cruel, inhuman or degrading manner.

Slavery, servitude and forced labour

30. (1) A person shall not be held in slavery or servitude.

(2) A person shall not be required to perform forced labour.

27
Privacy

31. Every person has the right to privacy, which includes the right not to have—

(a) their person, home or property searched;

(b) their possessions seized;

(c) information relating to their family or private affairs unnecessarily

required or revealed; or

(d) the privacy of their communications infringed.

Freedom of conscience, religion, belief and opinion

32. (1) Every person has the right to freedom of conscience, religion, thought,
belief and opinion.

(2) Every person has the right, either individually or in community with others,
in public or in private, to manifest any religion or belief through worship,
practice, teaching or observance, including observance of a day of worship.

(3) A person may not be denied access to any institution, employment or

facility, or the enjoyment of any right, because of the person’s belief or
religion. Comment [PK4]: Is there a reason for the
difference in formulation compared to (3)?

(4) A person shall not be compelled to act, or engage in any act, that is contrary
to the person’s belief or religion. Comment [PK5]: Is there a reason for the
difference in formulation compared to (3)?

Freedom of expression

33. (1) Every person has the right to freedom of expression, which includes—

(a) freedom to seek, receive or impart information or ideas;

(b) freedom of artistic creativity; and

(c) academic freedom and freedom of scientific research.

(2) The right to freedom of expression does not extend to—

(a) propaganda for war;

(b) incitement to violence;

(c) hate speech; or

(d) advocacy of hatred that—

28
 (i) constitutes ethnic incitement, vilification of others or
incitement to cause harm; or

(ii) is based on any ground of discrimination mentioned or

contemplated in Article 27 (4).

(3) In the exercise of the right to freedom of expression, every person shall
respect the rights and reputation of others.

Freedom of the media

34. (1) Freedom and independence of electronic, print and all other types of media
is guaranteed, but does not extend to any expression mentioned in Article
33 (2).

(2) The State shall not—

(a) exercise control over or interfere with any person engaged in

broadcasting, the production or circulation of any publication or the
dissemination of information by any medium; or

(b) penalise any person for any opinion or view or the content of any
broadcast, publication or dissemination.

(3) Broadcasting and other electronic media have freedom of establishment,

subject only to licensing procedures that—

(a) are necessary to regulate the airwaves and other forms of signal
distribution; and

(b) are independent of control by government, political interests or

commercial interests.

(4) All State-owned media shall—

(a) be free to determine independently the editorial content of their

broadcasts or other communications;

(b) be impartial; and

(c) afford fair opportunity for the presentation of divergent views and
dissenting opinions.

(5) Parliament shall enact legislation that provides for the establishment of a
body, which shall—

29
 (a) be independent of control by government, political interests or
commercial interests;

(b) reflect the interests of all sections of the society; and

(c) set media standards and regulate and monitor compliance with those
standards.

Access to information

35. (1) Every citizen has the right of access to—

(a) information held by the State; and

(b) information held by another person and required for the exercise or
protection of any right or fundamental freedom.

(2) Every person has the right to the correction or deletion of untrue or
misleading information that affects the person.

(3) The State shall publish and publicise any important information affecting
the nation.

Freedom of association

36. (1) Every person has the right to freedom of association, which includes the
right to form, join or participate in the activities of an association of any
kind.

(2) A person shall not be compelled to join an association of any kind.

(3) Any legislation that requires registration of an association of any kind shall
provide that—

(a) registration may not be withheld or withdrawn unreasonably; and

(b) there shall be a right to have a fair hearing before a registration is

cancelled.

Assembly, demonstration, picketing and petition

37. Every person has the right, peaceably and unarmed, to assemble, to
demonstrate, to picket, and to present petitions to public authorities.

Political rights

38. (1) Every citizen is free to make political choices, which includes the right—
30
 (a) to form, or participate in forming, a political party;

(b) to participate in the activities of, or recruit members for, a political

party; or

(c) to campaign for a political party or cause.

(2) Every citizen has the right to free, fair and regular elections based on
universal suffrage and the free expression of the will of the electors for—

(a) any elective public body or office established under this Constitution;
and

(b) any office holder of any political party of which the citizen is a
member.

(3) Every adult citizen has the right, without unreasonable restrictions, —

(a) to be registered as a voter;

(b) to vote by secret ballot in any election or referendum; and

(c) to be a candidate for public office, or office within a political party of

which they are a member and, if elected, to hold office.

Freedom of movement and residence

39. (1) Every person has the right to freedom of movement.

(2) Every person has the right to leave Kenya.

(3) Every citizen has the right to enter, remain in and reside anywhere in
Kenya.

Protection of right to property

40. (1) Subject to Article 65, every person has the right, either individually or in
association with others, to acquire and own property––

(a) of any description; and

(b) in any part of Kenya.

(2) Parliament shall not enact a law that permits the State or any person—

(a) to arbitrarily deprive a person of property of any description or of any

interest in, or right over, any property of any description; or

31
 (b) to limit, or in any way restrict the enjoyment of, any right under this
Article on the basis of any of the grounds mentioned or contemplated
in Article 27 (4).

(3) The State shall not deprive a person of property of any description, or of
any interest in, or right over, property of any description, unless the
deprivation—

(a) results from an acquisition of land or an interest in land or a

conversion of an interest in land, or title to land, in accordance with
Chapter Five; or

(b) is for a public purpose or in the public interest and is carried out in
accordance with this Constitution and any Act of Parliament that—

(i) requires prompt payment in full, of just compensation to

the person; and

(ii) allows any person who has an interest in, or right over,
that property a right of access to a court of law.

(4) Provision may be made for compensation to be paid to occupants in good

faith of land acquired under clause (3) who may not hold title to the land.

(5) The State shall support, promote and protect the intellectual property rights
of the people of Kenya.

(6) The rights under this Article do not extend to any property that has been
found to have been unlawfully acquired.

Labour relations

41. (1) Every person has the right to fair labour practices.

(2) Every worker has the right—

(a) to fair remuneration;

(b) to reasonable working conditions;

(c) to form, join or participate in the activities and programmes of a trade

union; and

(d) to go on strike.

(3) Every employer has the right—

32
 (a) to form and join an employers organisation; and

(b) to participate in the activities and programmes of an employers

organisation.

(4) Every trade union and every employers organisation has the right—

(a) to determine its own administration, programmes and activities;

(b) to organise; and

(c) to form and join a federation.

(5) Every trade union, employers organisation and employer has the right to
engage in collective bargaining.

Environment

42. Every person has the right to a clean and healthy environment, which
includes the right—

(a) to have the environment protected for the benefit of present and future
generations through legislative and other measures, particularly those
contemplated in Article 69; and

(b) to have obligations relating to the environment fulfilled under Article

70.

Economic and social rights

43. (1) Every person has the right—

(a) to the highest attainable standard of health, which includes the right to
health care 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.

33
 (3) The State shall provide appropriate social security to persons who are
unable to support themselves and their dependants.

Language and culture

44. (1) Every person has the right to use the language, and to participate in the
cultural life, of the person’s choice.

(2) A person belonging to a cultural or linguistic community has the right, with
other members of that community—

(a) to enjoy the person’s culture and use the person’s language; or

(b) to form, join and maintain cultural and linguistic associations and
other organs of civil society.

(3) A person shall not compel another person to perform, observe or undergo
any cultural practice or rite.

Family

45. (1) The family is the natural and fundamental unit of society and the necessary
basis of social order, and shall enjoy the recognition and protection of the
State.

(2) Every adult has the right to marry a person of the opposite sex, based on the
free consent of the parties.

(3) 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.

(4) Parliament shall enact legislation that recognises—

(a) marriages concluded under any tradition, or system of religious,

personal or family law; and

(b) any system of personal and family law under any tradition, or adhered
to by persons professing a particular religion,

to the extent that any such marriages or systems of law are consistent with
this Constitution.

Consumer rights

46. (1) Consumers have the right—

34
 (a) to goods and services of reasonable quality;

(b) to the information necessary for them to gain full benefit from goods
and services;

(c) to the protection of their health, safety, and economic interests; and

(d) to compensation for loss or injury arising from defects in goods or

services.

(2) Parliament shall enact legislation to provide for consumer protection and
for fair, honest and decent advertising.

(3) This Article applies to goods and services offered by public entities or
private persons.

Fair administrative action

47. (1) Every person has the right to administrative action that is expeditious,
efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is likely to be

adversely affected by administrative action, the person has the right to be
given written reasons for the action.

(3) Parliament shall enact legislation to give effect to the rights in clause (1)
and that legislation shall—

(a) provide for the review of administrative action by a court or, if

appropriate, an independent and impartial tribunal; and

(b) promote efficient administration.

Access to justice

48. The State shall ensure access to justice for all persons and, if any fee is
required, it shall be reasonable and shall not impede access to justice.

Rights of arrested persons

49. (1) An arrested person has the right—

(a) to be informed promptly, in language that the person understands,

of—

(i) the reason for the arrest;

35
 (ii) the right to remain silent; and

(iii) the consequences of not remaining silent;

(b) to remain silent;

(c) to communicate with an advocate, and other persons whose assistance

is necessary;

(d) not to be compelled to make any confession or admission that could

be used in evidence against the person;

(e) to be held separately from persons who are serving a sentence;

(f) to be brought before a court as soon as reasonably possible, but not

later than––

(i) twenty-four hours after being arrested; or

(ii) if the twenty-four hours ends outside ordinary court hours,

or on a day that is not an ordinary court day, the end of
the next court day;

(g) at the first court appearance, to be charged or informed of the reason

for the detention continuing, or to be released; and

(h) to be released on bond or bail, on reasonable conditions, pending a

charge or trial, unless there are compelling reasons not to be released.

(2) A person shall not be remanded in custody for an offence if the offence is
punishable by a fine only or by imprisonment for not more than six months.

Fair hearing

50. (1) Every person has the right to have any dispute that can be resolved by the
application of law decided in a fair and public hearing before a court or, if
appropriate, another independent and impartial tribunal or body.

(2) Every accused person has the right to a fair trial, which includes the right—

(a) to be presumed innocent until the contrary is proved;

(b) to be informed of the charge, with sufficient detail to answer it;

(c) to have adequate time and facilities to prepare a defence;

(d) to a public trial before a court established under this Constitution;

36
 (e) to have the trial begin and conclude without unreasonable delay;

(f) to be present when being tried, unless the conduct of the accused
person makes it impossible for the trial to proceed;

(g) to choose, and be represented by, an advocate, and to be informed of

this right promptly;

(h) to have an advocate assigned to the accused person by the State and at
State expense, if substantial injustice would otherwise result, and to
be informed of this right promptly;

(i) to remain silent, and not to testify during the proceedings;

(j) to be informed in advance of the evidence the prosecution intends to

rely on, and to have reasonable access to that evidence;

(k) to adduce and challenge evidence;

(l) to refuse to give self-incriminating evidence;

(m) to have the assistance of an interpreter without payment if the accused

person cannot understand the language used at the trial;

(n) not to be convicted for an act or omission that at the time it was
committed or omitted was not—

(i) an offence in Kenya; or

(ii) a crime under international law;

(o) not to be tried for an offence in respect of an act or omission for

which the accused person has previously been either acquitted or
convicted;

(p) to the benefit of the least severe of the prescribed punishments for an
offence, if the prescribed punishment for the offence has been
changed between the time that the offence was committed and the
time of sentencing; and

(q) if convicted, to appeal to, or apply for review by, a higher court as
prescribed by law.

(3) If this Article requires information to be given to a person, the information

shall be given in language that the person understands.

37
 (4) Evidence obtained in a manner that violates any right or fundamental
freedom in the Bill of Rights shall be excluded if the admission of that
evidence would render the trial unfair, or would otherwise be detrimental to
the administration of justice.

(5) An accused person—

(a) charged with an offence, other than an offence that the court may try
by summary procedures, is entitled during the trial to a copy of the
record of the proceedings of the trial on request; and

(b) has the right to a copy of the record of the proceedings within a
reasonable period after they are concluded, in return for a reasonable
fee as prescribed by law.

(6) A person who was convicted of a criminal offence may petition the High
Court for a new trial if––

(a) the person’s appeal, if any, has been dismissed by the highest court to
which the person is entitled to appeal, or the person did not appeal
within the time allowed for appeal; and

(b) new and compelling evidence has become available.

(7) In the interest of justice, a court may allow an intermediary to assist a

complainant or an accused person to communicate with the court.

(8) This Article does not prevent the exclusion of the press or other members of
the public from any proceedings if the exclusion is necessary, in a free and
democratic society, to protect witnesses or vulnerable persons, morality,
public order or national security.

(9) Parliament shall enact legislation providing for the protection, rights and
welfare of victims of offences.

Rights of persons detained, held in custody or imprisoned

51. (1) A person who is detained, held in custody or imprisoned under the law,
retains all the rights and fundamental freedoms in the Bill of Rights, except
to the extent that any particular right or a fundamental freedom is clearly
incompatible with the fact that the person is detained, held in custody or
imprisoned.

38
 (2) A person who is detained or held in custody is entitled to petition for an
order of habeas corpus.

(3) Parliament shall enact legislation that––

(a) provides for the humane treatment of persons detained, held in

custody or imprisoned; and

(b) takes into account the relevant international human rights instruments.

Part 3 – Specific application of rights

Interpretation of this Part

52. (1) This Part elaborates certain rights to ensure greater certainty as to the
application of those rights and fundamental freedoms to certain groups of
persons.

(2) This Part shall not be construed as limiting or qualifying any right.

Children

53. (1) Every child has the right –

(a) to a name and nationality from birth;

(b) to free and compulsory basic education;

(c) to basic nutrition, shelter and health care;

(d) to be protected from abuse, neglect, harmful cultural practices, all

forms of violence, inhuman treatment and punishment, and
hazardous or exploitative labour;

(e) to parental care and protection, which includes equal responsibility of

the mother and father to provide for the child, whether they are
married to each other or not; and

(f) not to be detained, except as a measure of last resort, and when

detained, to be held –

(i) for the shortest appropriate period of time; and

(ii) separate from adults and in conditions that take account of

the child’s sex and age.

39
 (2) A child’s best interests are of paramount importance in every matter
concerning the child.

Persons with disabilities

54. (1) A person with any disability is entitled––

(a) to be treated with dignity and respect and to be addressed and referred
to in a manner that is not demeaning;

(b) to access educational institutions and facilities for persons with

disabilities that are integrated into society to the extent compatible
with the interests of the person;

(c) to reasonable access to all places, public transport and information;

(d) to use sign language, Braille or other appropriate means of

communication; and

(e) to access materials and devices to overcome constraints arising from

the person’s disability.

(2) The State shall ensure the progressive implementation of the principle that
at least five percent of the members of public in elective and appointive
bodies are persons with disabilities.

Youth

55. The State shall take measures, including affirmative action programmes, to
ensure that the youth—

(a) access relevant education and training;

(b) have opportunities to associate, be represented and participate in

political, social, economic and other spheres of life;

(c) access employment; and

(d) are protected from harmful cultural practices and exploitation.

Minorities and marginalised groups

56. The State shall put in place affirmative action programmes designed to
ensure that minorities and marginalised groups—

40
 (a) participate and are represented in governance and other spheres of
life;

(b) are provided special opportunities in educational and economic fields;

(c) are provided special opportunities for access to employment;

(d) develop their cultural values, languages and practices; and

(e) have reasonable access to water, health services and infrastructure.

Older members of society

57. The State shall take measures to ensure the rights of older persons––

(a) to fully participate in the affairs of society;

(b) to pursue their personal development;

(c) to live in dignity and respect and be free from abuse; and

(d) to receive reasonable care and assistance from their family and the
State.

Part 4 — State of emergency

State of emergency

58. (1) A state of emergency may be declared only under Article 132 (4) (d) and
only when—

(a) the State is threatened by war, invasion, general insurrection,

disorder, natural disaster or other public emergency; and

(b) the declaration is necessary to meet the circumstances for which the
emergency is declared.

(2) A declaration of a state of emergency, and any legislation enacted or other

action taken in consequence of the declaration, shall be effective only—

(a) prospectively; and

(b) for no longer than fourteen days from the date of the declaration,
unless the National Assembly resolves to extend the declaration.

(3) The National Assembly may extend a declaration of a state of emergency—

41
 (a) by resolution adopted—

(i) following a public debate in the National Assembly; and

(ii) by the majorities mentioned in clause (4); and

(b) for no longer than two months at a time.

(4) The first extension of the declaration of a state of emergency requires a

supporting vote of at least two-thirds of all the members of the National
Assembly, and any subsequent extension requires a supporting vote of at
least three-quarters of all the members of the National Assembly.

(5) The Supreme Court may decide on the validity of—

(a) a declaration of a state of emergency;

(b) any extension of a declaration of a state of emergency; and

(c) any legislation enacted, or other action taken, in consequence of a

declaration of a state of emergency.

(6) Any legislation enacted in consequence of a declaration of a state of

emergency––

(a) may limit a right or fundamental freedom in the Bill of Rights only to
the extent that—

(i) the limitation is strictly required by the emergency; and

(ii) the legislation is consistent with the Republic’s

obligations under international law applicable to a state of
emergency; and

(b) shall not take effect until it is published in the Gazette.

(7) A declaration of a state of emergency, or legislation enacted or other action

taken in consequence of any declaration, may not permit or authorise the
indemnification of the State, or of any person, in respect of any unlawful act
or omission.

42
 Part 5 – Kenya National Human Rights and Equality Commission

Kenya National Human Rights and Equality Commission

59. (1) There is established the Kenya National Human Rights and Equality
Commission.

(2) The functions of the Commission are—

(a) to promote respect for human rights and develop a culture of human
rights in the Republic;

(b) to promote gender equality and equity generally and to coordinate and
facilitate gender mainstreaming in national development;

(c) to promote the protection, and observance of human rights in public

and private institutions;

(d) to monitor, investigate and report on the observance of human rights

in all spheres of life in the Republic, including observance by the
national security organs;

(e) to receive and investigate complaints about alleged abuses of human

rights and take steps to secure appropriate redress where human rights
have been violated;

(f) on its own initiative or on the basis of complaints, to investigate or

research a matter in respect of human rights, and make
recommendations to improve the functioning of State organs;

(g) act as the principal organ of the State in ensuring compliance with
obligations under treaties and conventions relating to human rights;

(h) investigate any conduct in state affairs, or any act or omission in

public administration in any sphere of government, that is alleged or
suspected to be prejudicial or improper or to result in any impropriety
or prejudice;

(i) investigate complaints of abuse of power, unfair treatment, manifest

injustice or unlawful, oppressive, unfair or unresponsive official
conduct;

43
 (j) report on complaints investigated under paragraphs (h) and (i) and
take remedial action; and

(k) perform any other functions prescribed by legislation.

(3) A person has the right to complain to the Commission, alleging that a right
or fundamental freedom in the Bill of Rights has been denied, violated or
infringed, or is threatened.

(4) Parliament shall enact legislation to give full effect to this Part, and any
such legislation may restructure the Commission into two or more separate
commissions.

(5) If Parliament enacts legislation restructuring the Commission under clause

(4)––

(a) that legislation shall assign each function of the Commission

mentioned in this Article to one or the other of the successor
commissions;

(b) each of the successor commissions shall have powers equivalent to

the powers of the Commission under this Article; and

(c) each successor commission shall be a commission within the meaning

of Chapter Fifteen, and shall have the status and powers of a
commission under that Chapter.

CHAPTER FIVE

LAND AND ENVIRONMENT

Part 1—Land

Principles of land policy

60. (1) Land in Kenya shall be held, used and managed in a manner that is
equitable, efficient, productive and sustainable, and in accordance with the
following principles—
44
 (a) equitable access to land;

(b) security of land rights;

(c) sustainable and productive management of land resources;

(d) transparent and cost effective administration of land;

(e) sound conservation and protection of ecologically sensitive areas;

(f) elimination of gender discrimination in law, customs and practices

related to land and property in land; and

(g) encouragement of communities to settle land disputes through

recognised local community initiatives consistent with this
Constitution.

(2) These principles shall be implemented through a national land policy

developed and reviewed regularly by the national government and through
legislation.

Classification of land

61. (1) All land in Kenya belongs to the people of Kenya collectively as a nation,
as communities and as individuals.

(2) Land in Kenya is classified as public, community or private.

Public land

62. (1) Public land is—

(a) land which at the effective date was unalienated government land as
defined by an Act of Parliament in force at the effective date;

(b) land lawfully held, used or occupied by any State organ, except any
such land that is occupied by the State organ as lessee under a private
lease;

(c) land transferred to the State by way of sale, reversion or surrender;

(d) land in respect of which no individual or community ownership can

be established by any legal process;

(e) land in respect of which no heir can be identified by any legal

process;

45
 (f) all minerals and mineral oils as defined by law;

(g) government forests other than forests to which Article 76(2) (e)
applies, government game reserves, water catchment areas, national
parks, government animal sanctuaries, and specially protected areas;

(h) all roads and thoroughfares mentioned by an Act of Parliament; Comment [PK6]: This clause seems redundant,
as it amounts to a duplicate enumeration of the land
involved. Roads etc are on land that is either
(i) all rivers, lakes and other water bodies as defined by an Act of unalienated (captured in (a)) or land held by the
state.
Parliament;
The ability of Parlaiamnet to determine the scope of
this amounts to an exceptional power to effectively
(j) the territorial sea, the exclusive economic zone and the sea bed; amend this Constitution by ‘remote control’.

(k) the continental shelf;

(l) all land between the high and low water marks;

(m) any land not classified as private or community land under this
Constitution; and

(n) any other land declared to be public land by an Act of Parliament—

(i) in force at the effective date; or

(ii) enacted after the effective date.

(2) Public land shall vest in and be held by a county government in trust for the
people resident in the county, and shall be administered on their behalf by
the National Land Commission, if it is classified under—

(a) clause (1) (a), (c) (d) or (e); and

(b) clause (1) (b), other than land held, used or occupied by a national
State organ.

(3) Public land classified under clause (1) (f) to (m) shall vest in and be held by
the national government in trust for the people of Kenya and shall be
administered on their behalf by the National Land Commission.

(4) Public land shall not be disposed of or otherwise used except in terms of an
Act of Parliament specifying the nature and terms of that disposal or use.

Community land

63. (1) Community land shall vest in and be held by communities identified on the
basis of ethnicity, culture or similar community of interest.

(2) Community land consists of—

46
 (a) land lawfully registered in the name of group representatives under
the provisions of any law;

(b) land lawfully transferred to a specific community by any process of

law;

(c) any other land declared to be community land by an Act of

Parliament; and

(d) land that is—

(i) lawfully held, managed or used by specific communities

as community forests, grazing areas or shrines;

(ii) ancestral lands and lands traditionally occupied by hunter-

gatherer communities; or

(iii) lawfully held as trust land by the county governments,

but not including any public land held in trust by the county
government under Article 62 (2).

(3) Any unregistered community land shall be held in trust by county

governments on behalf of the communities for which it is held.

(4) Community land shall not be disposed of or otherwise used except in terms
of legislation specifying the nature and extent of the rights of members of
each community individually and collectively.

(5) Parliament shall enact legislation to give effect to this Article.

Private land

64. Private land consists of —

(a) registered land held by any person under any freehold tenure;

(b) land held by any person under leasehold tenure; and

(c) any other land declared private land under an Act of Parliament.

Landholding by non-citizens

65. (1) A person who is not a citizen may hold land on the basis of leasehold tenure
only, and any such lease, however granted, shall not exceed ninety-nine
years.

47
 (2) If a provision of any agreement, deed, conveyance or document of whatever
nature purports to confer on a person who is not a citizen an interest in land
greater than a ninety-nine year lease, the provision shall be regarded as
conferring on the person a ninety-nine year leasehold interest, and no more.

(3) For purposes of this Article –

(a) a body corporate shall be regarded as a citizen only if the body

corporate is wholly owned by one or more citizens; and

(b) property held in trust shall be regarded as being held by a citizen only
if all of the beneficial interest of the trust is held by persons who are
citizens.

(4) Parliament may enact legislation to make further provision for the operation
of this Article.

Regulation of land use and property

66. (1) The State may regulate the use of any land, or any interest in or right over
any land, in the interest of defence, public safety, public order, public
morality, public health, or land use planning.

(2) Parliament shall enact legislation ensuring that investments in property

benefit local communities and their economies.

National Land Commission

67. (1) There is established the National Land Commission.

(2) The functions of the National Land Commission are—

(a) to manage public land on behalf of the national and county

governments;

(b) to recommend a national land policy to the national government;

(c) to advise the national government on a comprehensive programme for

the registration of title in land throughout Kenya;

(d) to conduct research related to land and the use of natural resources,
and make recommendations to appropriate authorities;

48
 (e) to initiate investigations, on its own initiative or on a complaint, into
present or historical land injustices, and recommend appropriate
redress;

(f) to encourage the application of traditional dispute resolution

mechanisms in land conflicts;

(g) to assess tax on land and premiums on immovable property in any Comment [PK7]: Drafters are unclear what this
refers to
area designated by law; and

(h) to monitor and have oversight responsibilities over land use planning
throughout the country.

(3) The National Land Commission may perform any other functions
prescribed by national legislation.

Legislation on land

68. (1) Parliament shall—

(a) revise, consolidate and rationalise existing land laws;

(b) revise sectoral land use laws in accordance with the principles
mentioned in Article 60 (1); and

(c) enact legislation—

(i) to prescribe minimum and maximum land holding

acreages in respect of private land;

(ii) to regulate the manner in which any land may be

converted from one category to another;

(iii) to regulate the recognition and protection of matrimonial

property and in particular the matrimonial home during
and on the termination of marriage;

(iv) to protect, conserve and provide access to all public land;

(v) to enable the review of all grants or dispositions of public

land to establish their propriety or legality;

(vi) to protect the dependants of deceased persons holding

interests in any land, including the interests of spouses in
actual occupation of land; and

49
 (vii) to provide for any other matter necessary to give effect to
the provisions of this Chapter.

Part 2—Environment and natural resources

Obligations in respect of the environment

69. (1) The State shall—

(a) ensure sustainable exploitation, utilisation, management and

conservation of the environment and natural resources, and ensure the
equitable sharing of the accruing benefits;

(b) work to achieve and maintain a tree cover of at least ten per cent of
the land area of Kenya;

(c) protect and enhance intellectual property in, and indigenous

knowledge of, biodiversity and the genetic resources of the
communities; and

(d) encourage public participation in the management, protection and

conservation of the environment;

(e) protect genetic resources and biological diversity;

(f) establish systems of environmental impact assessment, environmental

audit and monitoring of the environment;

(g) eliminate processes and activities that are likely to endanger the
environment; and

(h) utilise the environment and natural resources for the benefit of the
people of Kenya.

(2) Every person has a duty to cooperate with State organs and other persons to
protect and conserve the environment and ensure ecologically sustainable
development and use of natural resources.

Enforcement of environmental rights

70. (1) If a person alleges that a right to a clean and healthy environment
recognised and protected under Article 42 has been, is being or is likely to
be, denied, violated, infringed or threatened, the person may apply to a
50
 court for redress in addition to any other legal remedies that are available in
respect to the same matter.

(2) On application under clause (1), the court may make any order, or give any
directions, it considers appropriate––

(a) to prevent, stop or discontinue any act or omission that is harmful to

the environment;

(b) to compel any public officer to take measures to prevent or

discontinue any act or omission that is harmful to the environment; or

(c) to provide compensation for any victim of a violation of the right to a

clean and healthy environment.

(3) For the purposes of this Article, an applicant does not have to demonstrate
that any person has incurred loss or suffered injury.

Agreements relating to natural resources

71. (1) A transaction is subject to ratification by Parliament if it––

(a) involves the grant of a right or concession by or on behalf of any

person, including the national government, to another person for the
exploitation of any natural resource of Kenya; and

(b) is entered into on or after the effective date.

(2) Parliament shall enact legislation providing for the classes of transactions
subject to ratification under clause (1).

Legislation relating to the environment

72. Parliament shall enact legislation to give full effect to the provisions of this Part.

51
 CHAPTER SIX

LEADERSHIP AND INTEGRITY

Responsibilities of leadership

73. (1) Authority assigned to a State officer—

(a) is a public trust to be exercised in a manner that—

(i) is consistent with the purposes and objects of this

Constitution;

(ii) demonstrates respect for the people;

(iii) brings honour to the nation and dignity to the office; and

(iv) promotes public confidence in the integrity of the office;

and

(b) vests in the State officer the responsibility to serve the people, rather
than the power to rule them.

(2) The guiding principles of leadership and integrity include—

(a) selection on the basis of personal integrity, competence and

suitability, or election in free and fair elections;

(b) objectivity and impartiality in decision making, and in ensuring that

decisions are not influenced by nepotism, favouritism, other improper
motives or corrupt practices;

(c) selfless service based solely on the public interest, demonstrated by—

(i) honesty in the execution of public duties; and

(ii) the declaration of any personal interest that may conflict

with public duties;

(d) accountability to the public for decisions and actions; and

(e) discipline and commitment in service to the people.

Oath of office of State officers

74. Before assuming a State office, acting in a State office, or performing any
functions of a State office, a person shall take and subscribe the oath or
52
 affirmation of office, in the manner and form prescribed by the Third
Schedule or under an Act of Parliament.

Conduct of State officers

75. (1) A State officer shall behave, whether in public and official life, in private
life, or in association with other persons, in a manner that avoids—

(a) any conflict between personal interests and public or official duties;

(b) compromising any public or official interest in favour of a personal

interest; or

(c) demeaning the office the officer holds.

(2) A person who contravenes clause (1), or Article 76, 77 or 78 (2)—

(a) shall be subject to the applicable disciplinary procedure for the

relevant office; and

(b) in accordance with the disciplinary procedure mentioned in paragraph

(a), may be dismissed or otherwise removed from office.

(3) A person who has been dismissed or otherwise removed from office for a
contravention of the provisions mentioned in clause (2) is disqualified from
holding any other State office.

Financial probity of State officers

76. (1) A gift or donation to a State officer on a public or official occasion is a gift
or donation to the Republic and shall be delivered to the State unless
exempted under an Act of Parliament.

(2) A State officer shall not—

(a) maintain a bank account outside Kenya except in accordance with an

Act of Parliament; or

(b) seek or accept a personal loan or benefit in circumstances that

compromise the integrity of the State officer.

Restriction on activities of State officers

77. (1) A full-time State officer shall not participate in any other gainful
employment.

53
 (2) Any appointed State officer shall not hold office in a political party.

(3) A retired State officer who is receiving a pension from public funds shall
not accept more than two concurrent remunerative positions as chairperson,
director or employee of—

(a) a company owned or controlled by the State; or

(b) a State organ.

(4) A retired State officer shall not receive remuneration from public funds
other than as contemplated in clause (3).

Citizenship and leadership

78. (1) A person is not eligible for election or appointment to a State office unless
the person is a citizen of Kenya.

(2) A State officer or a member of the defence forces shall not hold dual
citizenship.

(3) Clauses (1) and (2) do not apply to—

(a) judges and members of commissions; or

(b) any person who has been made a citizen of another country by
operation of that country’s law, without ability to opt out.

Legislation to establish the ethics and anti-corruption commission

79. Parliament shall enact legislation to establish an independent ethics and

anti-corruption commission, which shall be and have the status and powers
of a commission under Chapter Fifteen, for purposes of ensuring
compliance with, and enforcement of, the provisions of this Chapter.

Legislation on leadership

80. Parliament shall enact legislation—

(a) establishing procedures and mechanisms for the effective

administration of this Chapter;

(b) prescribing the penalties, in addition to penalties mentioned in Article

75, that may be imposed for a contravention of this Chapter;

54
(c) providing for the application of this Chapter, with the necessary
modifications, to public officers; and

(d) making any other provision necessary for ensuring the promotion of
the principles of leadership and integrity mentioned in this Chapter,
and the enforcement of this Chapter.

55
 CHAPTER SEVEN

REPRESENTATION OF THE PEOPLE

Part 1––Electoral system and process

General principles for the electoral system

81. 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 of the members of elective public bodies
shall be of the same gender;

(c) fair representation of persons with disabilities;

(d) universal suffrage based on the aspiration for fair representation and
equality of vote; and

(e) free and fair elections, which are—

(i) by secret ballot;

(ii) free from violence, intimidation, improper influence or

corruption;

(iii) conducted by an independent body;

(iv) transparent; and

(v) administered in an impartial, neutral, efficient, accurate

and accountable manner.

Legislation on elections

82. (1) Parliament shall enact legislation to provide for—

(a) the delimitation by the Independent Electoral and Boundaries

Commission of electoral units for election of members of the National
Assembly and county assemblies;

(b) the nomination of candidates;

(c) the continuous registration of citizens as voters;

56
 (d) the conduct of elections and referenda and the regulation and efficient
supervision of elections and referenda, including the nomination of
candidates for elections; and

(e) the progressive registration of citizens residing outside Kenya, and the
progressive realisation of their right to vote.

(2) Legislation required by clause (1) (d) shall ensure that voting at every
election is—

(a) simple;

(b) transparent; and

(c) takes into account the special needs of—

(i) persons with disabilities; and

(ii) other persons or groups with special needs.

Registration as a voter

83. (1) A person qualifies for registration as a voter at elections or referenda if the
person—

(a) is an adult citizen;

(b) is not declared to be of unsound mind; and

(c) has not been convicted of an election offence during the preceding
five years.

(2) A citizen who qualifies for registration as a voter shall be registered at only
one registration centre.

(3) Administrative arrangements for the registration of voters and the conduct
of elections shall be designed to facilitate, and shall not deny, an eligible
citizen the right to vote or stand for election.

Candidates for election and political parties to comply with code of conduct

84. In every election, all candidates and all political parties shall comply with
the code of conduct prescribed by the Independent Electoral and
Boundaries Commission.

57
Eligibility to stand as independent candidate

85. Any person is eligible to stand as an independent candidate for election, if

the person –

(a) is not a member of a registered political party and has not been a
member for at least three months immediately before the date of the
election; and

(b) satisfies the requirements of––

(i) Article 99 (1) (c) (i) or (ii), in the case of a candidate for
election to the National Assembly or the Senate,
respectively; or

(ii) Article 193 (1) (c) (ii), in the case of a candidate for
election to a county assembly.

Voting

86. At every election, the Independent Electoral and Boundaries Commission

shall ensure that—

(a) whatever voting method is used, the system is simple, accurate,

verifiable, secure, accountable and transparent;

(b) the votes cast are counted, tabulated and the results announced
promptly by the presiding officer at each polling station;

(c) the results from the polling stations are openly and accurately collated
and promptly announced by the returning officer; and

(d) appropriate structures and mechanisms to eliminate electoral

malpractice are put in place, including the safekeeping of election
materials.

Electoral disputes

87. (1) Parliament shall enact legislation to establish mechanisms for timely
settling of electoral disputes.

(2) Petitions concerning an election, other than a presidential election, shall be

filed within twenty-eight days after the declaration of the election results by
the Independent Electoral and Boundaries Commission.

58
 (3) Service of a petition may be direct or by advertisement in a newspaper with
national circulation.

Part 2—Independent Electoral and Boundaries Commission and delimitation of

electoral units

Independent Electoral and Boundaries Commission

88. (1) There is established the Independent Electoral and Boundaries Commission.

(2) A person is not eligible for appointment as a member of the Commission if

the person—

(a) has, at any time within the preceding five years, held office, or stood
for election as—

(i) a member of Parliament or of a county assembly; or

(ii) a member of the governing body of a political party; or

(b) holds any State office.

(3) A member of the Commission shall not hold another public office.

(4) The Commission is responsible for conducting or supervising referenda and

elections to any elective body or office established by this Constitution, and
any other elections as prescribed by an Act of Parliament and, in particular,
for—

(a) the continuous registration of citizens as voters;

(b) the regular revision of the voters roll;

(c) the delimitation of constituencies and wards;

(d) the regulation of the process by which parties nominate candidates for
elections;

(e) the settlement of electoral disputes, including disputes relating to or

arising from nominations but excluding election petitions and disputes
subsequent to the declaration of election results;

(f) the registration of candidates for election;

(g) voter education;

59
 (h) the facilitation of the observation, monitoring and evaluation of
elections;

(i) the regulation of the amount of money that may be spent by or on

behalf of a candidate or party in respect of any election;

(j) the development of a code of conduct for candidates and parties

contesting elections; and

(k) monitoring compliance with the legislation required by Article 82 (1)

(b) relating to nomination of candidates by parties.

(5) The Commission shall exercise its powers and perform its functions in
accordance with this Constitution and national legislation.

Delimitation of electoral units

89. (1) There shall be two hundred and ninety constituencies for the purposes of
the election of the members of the National Assembly mentioned in Article
97 (1) (a).

(2) The Independent Electoral and Boundaries Commission shall review the
names and boundaries of constituencies at intervals of not less than eight
years, and not more than twelve years, but any review shall be completed at
least twelve months before a general election of members of Parliament.

(3) The Commission shall review the number, names and boundaries of wards
periodically.

(4) If a general election is to be held within twelve months after the completion
of a review by the Commission, the new boundaries shall not take effect for
purposes of that election.

(5) The boundaries of each constituency shall be such that the number of
inhabitants in the constituency is, as nearly as possible, equal to the
population quota but the number of inhabitants of a constituency may be
greater or lesser than the population quota in the manner mentioned in
clause (6) to take account of—

(a) geographical features and urban centres;

(b) community of interest, historical, economic and cultural ties; and

(c) means of communication.

60
 (6) The number of inhabitants of a constituency or ward may be greater or
lesser than the population quota by a margin of not more than—

(a) forty percent for cities and sparsely populated areas; and

(b) thirty percent for the other areas.

(7) In reviewing constituency and ward boundaries the Commission shall––

(a) consult all interested parties; and

(b) progressively work towards ensuring that the number of inhabitants in

each constituency and ward is, as nearly as possible, equal to the
population quota.

(8) If necessary, the Commission shall alter the names and boundaries of
constituencies, and the number, names and boundaries of wards.

(9) Subject to clauses (1), (2), (3) and (4), the names and details of the
boundaries of constituencies and wards determined by the Commission
shall be published in the Gazette, and shall come into effect on the
dissolution of Parliament first following their publication.

(10) A person may apply to the High Court for review of a decision of the
Commission made under this Article.

(11) An application for the review of a decision made under this Article shall be
filed within thirty days of the publication of the decision in the Gazette and
shall be heard and determined within three months of the date on which it is
filed.

(12) For the purposes of this Article, “population quota” means the number
obtained by dividing the number of inhabitants of Kenya by the number of
constituencies or wards, as applicable, into which Kenya is divided under
this Article.

Allocation of party list seats

90. (1) Elections for the seats in Parliament provided for under Articles 97 (1) (c)
and 98 (1) (b), (c) and (d), and for the members of county assemblies under
177 (1) (b) and (c), shall be on the basis of proportional representation by
use of party lists.

61
 (2) The Independent Electoral and Boundaries Commission shall be
responsible for the conduct and supervision of elections for seats provided
for under clause (1) and shall ensure that—

(a) each political party participating in a general election nominates and

submits a list of all the persons who would stand elected if the party
were to be entitled to all the seats provided for under clause (1),
within the time prescribed by national legislation;

(b) except in the case of the seats provided for under Article 98 (1) (b),
each party list comprises the appropriate number of qualified
candidates and alternates between male and female candidates in the
priority in which they are listed; and

(c) except in the case of county assembly seats, each party list reflects the
regional and ethnic diversity of the people of Kenya.

(3) The seats mentioned in clause (1) shall be allocated to political parties in
proportion to the total number of seats won by candidates of the political
party at the general election.

Part 3—Political Parties

Basic requirements for political parties

91. (1) Every political party shall—

(a) have a national character as prescribed by an Act of Parliament;

(b) have a democratically elected governing body;

(c) promote and uphold national unity;

(d) abide by the democratic principles of good governance, promote and

practise democracy through regular, fair and free elections within the
party;

(e) respect the right of 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;

62
 (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.

(2) 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 in or encourage violence by, or intimidation of, its members,

supporters, opponents or any other person;

(c) establish or maintain a paramilitary force, militia or similar

organisation;

(d) engage in bribery or other forms of corruption; or

(e) except as is provided under this Chapter or by an Act of Parliament,

accept or use public resources to promote its interests or its candidates
in elections.

Legislation on political parties

92. Parliament shall enact legislation to provide for—

(a) reasonable and equitable allocation of airtime, by State-owned and

other mentioned categories of broadcasting media, to political parties
either generally or during election campaigns;

(b) regulation of freedom to broadcast in order to ensure fair election

campaigning;

(c) regulation of political parties;

(d) the roles and functions of political parties;

(e) the registration and supervision of political parties;

(f) the establishment and management of a political parties fund;

(g) the accounts and audit of political parties;

(h) restrictions on the use of public resources to promote the interests of

political parties; and

(i) any other matters necessary for the management of politcal parties.

63
 CHAPTER EIGHT

THE LEGISLATURE

Part 1—Establishment and role of Parliament

Establishment of Parliament

93. (1) There is established a Parliament of Kenya, which shall consist of the
National Assembly and the Senate.

(2) The National Assembly and the Senate shall perform their respective
functions in accordance with this Constitution.

Role of Parliament

94. (1) The legislative authority of the Republic is derived from the people and, at
the national level, is vested in and exercised by Parliament.

(2) Parliament manifests the diversity of the nation, represents the will of the
people, and exercises their sovereignty.

(3) Parliament may consider and pass amendments to this Constitution, and
alter county boundaries as provided for in this Constitution.

(4) Parliament shall protect this Constitution and promote the democratic
governance of the Republic.

(5) No person or body other than Parliament has the power to make provision
having the force of law in Kenya except under authority conferred by this
Constitution or by legislation.

(6) An Act of Parliament, or legislation of a county, that confers on any State

organ, State officer or person the authority to make provision having the
force of law in Kenya, as contemplated in clause (5), shall expressly specify
the purpose and objectives for which that authority is conferred, the limits
of the authority, the nature and scope of the law that may be made, and the
principles and standards applicable to the law made under the authority.

Role of the National Assembly

95. (1) The National Assembly represents the people of the constituencies and
special interests in the National Assembly.
64
 (2) The National Assembly deliberates on and resolves issues of concern to the
people.

(3) The National Assembly enacts legislation in accordance with Part 4 of this
Chapter.

(4) The National Assembly –

(a) determines the allocation of national revenue between the levels of

government, as provided in Part 4 of Chapter Twelve;

(b) appropriates funds for expenditure by the national government and

other national State organs; and

(c) exercises oversight over national revenue and its expediture.

(5) The National Assembly––

(a) reviews the conduct in office of the President, the Deputy President
and other State officers and initiates the process of removing them
from office; and

(b) exercises oversight of State organs.

(6) The National Assembly approves declarations of war and extensions of

states of emergency.

Role of the Senate

96. (1) The Senate represents the counties, and serves to protect the interests of the
counties and their governments.

(2) The Senate participates in the law-making function of Parliament by

considering, debating and approving Bills concerning counties, as provided
in Articles 109 to 113.

(3) The Senate determines the allocation of national revenue among counties,
as provided in Article 216, and exercises oversight over national revenue
allocated to the county governments.

(4) The Senate participates in the oversight of State officers by considering and
determining any resolution to remove the President or Deputy President
from office in accordance with Article 145.

65
 Part 2—Composition and membership of Parliament

Membership of the National Assembly

97. (1) The National Assembly consists of—

(a) two hundred and ninety members elected by the registered voters of
single member constituencies;

(b) forty-seven women each elected by the registered voters of the

counties, each county constituting a single member constituency;

(c) twelve members nominated by parliamentary political parties

according to their proportion of members of the National Assembly in
accordance with Article 90, to represent special interests including the
youth, persons with disabilities and workers; and

(d) the Speaker, who is an ex officio member.

(2) Nothing in this Article shall be construed as excluding any person from
contesting an election under clause (1) (a).

Membership of the Senate

98. (1) The Senate consists of—

(a) forty-seven members each elected by the registered voters of the

counties, each county constituting a single member constituency;

(b) sixteen women members who shall be nominated by political parties

according to their proportion of members of the Senate elected under
clause (a) in accordance with Article 90;

(c) two members, being one man and one woman, representing the youth;

(d) two members, being one man and one woman, representing persons
with disabilities; and

(e) the Speaker, who shall be an ex officio member.

(2) The members mentioned in clause (1) (c) and (d) shall be elected in
accordance with Article 90.

(3) Nothing in this Article shall be construed as excluding any person from
contesting an election under clause (1) (a).

66
Qualifications and disqualifications for election as member of Parliament

99. (1) Unless disqualified under clause (2), a person is eligible for election as a
member of Parliament if the person—

(a) is registered as a voter;

(b) satisfies any educational, moral and ethical requirements prescribed

by this Constitution or by an Act of Parliament; and

(c) is nominated by a political party, or is an independent candidate who

is supported––

(i) in the case of election to the National Assembly, by at

least one thousand registered voters in the constituency; or

(ii) in the case of election to the Senate, by at least two

thousand registered voters in the county.

(2) A person is disqualified from being elected a member of Parliament if the

person—

(a) is a State officer or other public officer, other than a member of

Parliament;

(b) has, at any time within the five years immediately preceding the date
of election, held office as a member of the Independent Electoral and
Boundaries Commission;

(c) has not been a citizen of Kenya for at least the ten years immediately
preceding the date of election;

(d) is a member of a county assembly;

(e) is of unsound mind;

(f) is an undischarged bankrupt;

(g) is subject to a sentence of imprisonment of at least six months, as at

the date of registration as a candidate, or at the date of election; or

(h) has been found in accordance with any law to have misused or abused
a State office or public office or in any way to have contravened
Chapter Six.

67
 (3) A person is not disqualified under clause (2) unless all possibility of appeal
or review of the relevant sentence or decision has been exhausted.

Promotion of representation of marginalised groups

100. Parliament shall enact legislation to promote the representation in

Parliament of—

(a) women;

(b) persons with disabilities;

(c) youth;

(d) ethnic and other minorities; and

(e) marginalised communities.

Election of members of Parliament

101. (1) A general election of members of Parliament shall be held on the second
Tuesday in August in every fifth year.

(2) Whenever a vacancy occurs in the office of a member of the National

Assembly mentioned under Article 97 (1) (c), or of the Senate elected under
Article 98 (1) (b), (c) or (d), the respective Speaker shall, within twenty-one
days of the occurrence of the vacancy, give notice in writing of the vacancy
to—

(a) the Independent Electoral and Boundaries Commission; and

(b) the political party on whose party list the member was elected or
nominated.

(3) A vacancy mentioned in clause (2) shall, subject to clause (5), be filled in
the manner prescribed by an Act of Parliament within twenty-one days of
the notification by the respective Speaker.

(4) Whenever a vacancy occurs in the office of a member of of the National

Assembly elected under Article 97 (1) (a) or (b), or of the Senate elected
under Article 98 (1) (a)—

(a) the respective Speaker shall, within twenty-one days after the
occurrence of the vacancy, give notice in writing of the vacancy to the
Independent Electoral and Boundaries Commission; and

68
 (b) a by-election shall be held within ninety days of the occurrence of the
vacancy, subject to clause (5).

(5) A vacancy mentioned in clause (4) shall not be filled within three months
before a general election.

Term of Parliament

102. (1) The term of each House of Parliament expires on the date of the next
general election.

(2) When Kenya is at war, Parliament from time to time, by resolution

supported in each House by at least two-thirds of all the members of the
House, may extend the term of Parliament by not more than six months at a
time.

(3) The term of Parliament shall not be extended under clause (2) for a total of
more than twelve months.

Vacation of office of member of Parliament

103. (1) The office of a member of Parliament becomes vacant—

(a) if the member dies;

(b) if, during any session of Parliament, the member is absent from eight
sittings of the relevant House without permission, in writing, from the
Speaker, and is unable to offer a satisfactory explanation for the
absence to the relevant committee;

(c) if the member is otherwise removed from office under this

Constitution or legislation enacted under Article 80;

(d) if the member resigns from Parliament in writing to the Speaker;

(e) if, having been elected to Parliament––

(i) as a member of a political party, the member resigns from

that party or is deemed to have resigned from the party as
determined in accordance with the legislation
contemplated in clause (2); or

(ii) as an independent candidate, the member joins a political

party;

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 (f) at the end of the term of the relevant House; or

(g) if the member becomes disqualified for election to Parliament under

Article 99 (2) (d) to (h).

(2) Parliament shall enact legislation providing for the circumstances under
which a member of a political party shall be deemed, for the purposes of
clause (1) (e), to have resigned from the party.

Right of recall

104. (1) The electorate under Articles 97 and 98 have the right to recall the member
of Parliament representing their constituency before the end of the term of
the relevant House of Parliament.

(2) Parliament shall enact legislation to provide for the grounds on which a
member may be recalled and the procedure to be followed.

Determination of questions of membership

105. (1) The High Court shall hear and determine any question whether—

(a) a person has been validly elected as a member of Parliament; or

(b) the seat of a member has become vacant.

(2) A question mentioned in clause (1) shall be heard and determined within six
months of the date of lodging the petition.

(3) Parliament shall enact legislation to give full effect to this Article.

Part 3—Offices of Parliament

Speakers and Deputy Speakers of Parliament

106. (1) There shall be—

(a) a Speaker for each House of Parliament who shall be elected by that
House, in accordance with the Standing Orders, from among persons
who are qualified to be elected as members of Parliament but are not
such members; and

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 (b) a Deputy Speaker for each House of Parliament who shall be elected
by that House, in accordance with the Standing Orders, from among
the members of that House.

(2) The office of Speaker or Deputy Speaker shall become vacant—

(a) when a new House of Parliament first meets after an election;

(b) if the office holder, as a member of the relevant House, vacates office
under Article 103;

(c) if the relevant House so resolves by resolution supported by the votes

of at least two-thirds of its members; or

(d) if the office holder resigns from office in a letter addressed to the
relevant House.

Presiding in Parliament

107. (1) At any sitting of a House of Parliament—

(a) the Speaker presides;

(b) in the absence of the Speaker, the Deputy Speaker presides; and

(c) in the absence of the Speaker and the Deputy Speaker, another
member of the House elected by the House presides.

(2) At a joint sitting of the Houses of Parliament, the Speaker of the National
Assembly shall preside, assisted by the Speaker of the Senate.

Party leaders

108. (1) There shall be a leader of the majority party and a leader of the minority
party.

(2) The leader of the majority party shall be the person who is the leader in the
National Assembly of the largest party, or coalition of parties.

(3) The leader of the minority party shall be the person who is the leader in the
National Assembly of the second largest party or coalition of parties.

(4) The following order of precedence shall be observed in the National

Assembly––

(a) the Speaker of the National Assembly;

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 (b) the leader of the majority party; and

(c) the leader of the minority party.

Part 4—Procedures for enacting legislation

Exercise of legislative powers

109. (1) Parliament shall exercise its legislative power through Bills passed by
Parliament and assented to by the President.

(2) Any Bill may originate in the National Assembly.

(3) A Bill not concerning county government is considered only in the National
Assembly, and passed in accordance with Article 122 and the Standing
Orders of the Assembly.

(4) A Bill concerning county government may originate in the National

Assembly or the Senate, and is passed in accordance with Articles 109 to
113, Articles 122 and 123 and the Standing Orders of the Houses.

(5) Bills may be introduced by any member or committee of the relevant House
of Parliament, but a money Bill may be introduced only in the National
Assembly in accordance with Article 114.

Bills concerning county government

110. (1) In this Constitution, “a Bill concerning county government” means––

(a) a Bill containing provisions affecting the functions and powers of the
county governments mentioned in the Fourth Schedule;

(b) a Bill relating to the election of members of a county assembly or a

county executive; and

(c) a Bill mentioned in Chapter Twelve affecting the finances of county

governments.

(2) A Bill concerning county governments is––

(a) a special Bill, which shall be considered under Article 111, if it––

(i) relates to the election of members of a county assembly or

a county executive; or

72
 (ii) is the annual County Division of Revenue Bill mentioned
in Article 218; or

(b) an ordinary Bill, which shall be considered under Article 112, in any
other case.

(3) Before either House considers a Bill, the Speakers of the National
Assembly and Senate shall jointly resolve any question whether it is a Bill
concerning counties and, if it is, whether it is a special or ordinary Bill.

(4) When any Bill concerning county government has been passed by one
House of Parliament, the Speaker of that House shall refer it to the Speaker
of the other House.

(5) If both Houses pass the Bill in the same form, the Speaker of the House in
which the Bill originated shall refer the Bill to the President within seven
days for assent.

Special Bills concerning county governments

111. (1) A special Bill concerning county government shall proceed in the same
manner as an ordinary Bill concerning county government, subject to
clauses (2) and (3).

(2) The National Assembly may amend or veto a special Bill that has been
passed by the Senate only by a resolution supported by at least two-thirds of
the members of the Assembly.

(3) If a resolution in the National Assembly to amend or veto a special Bill fails
to pass, the Speaker of the Assembly shall refer the Bill, in the form
adopted by the Senate, to the President within seven days for assent.

Ordinary Bills concerning county governments

112. (1) If one House passes an ordinary Bill concerning counties, and the second
House –

(a) rejects the Bill, it shall be referred to a mediation committee under

Article 113; or

(b) passes the Bill in an amended form, it shall be referred back to the
originating House for reconsideration.

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 (2) If, after the originating House has reconsidered a Bill referred back to it
under clause (1) (b), that House––

(a) passes the Bill as amended, the Speaker of that House shall refer the
Bill to the President within seven days for assent; or

(b) rejects the Bill as amended, the Bill is referred to a mediation

committee under Article 113.

Mediation committees

113. (1) If a Bill is referred to a mediation committee under Article 112, the
Speakers of both Houses shall appoint a mediation committee consisting of
equal numbers of members of each House to attempt to develop a version of
the Bill that both Houses will pass.

(2) If the mediation committee agrees on a version of the Bill, each House shall
vote to approve or reject that version of the Bill.

(3) If both Houses approve the version of the Bill proposed by the mediation
committee, the Speaker of the National Assembly shall refer the Bill to the
President within seven days for assent.

(4) If the mediation committee fails to agree on a version of the Bill within
thirty days, or if a version proposed by the committee is rejected by either
House, the Bill is defeated.

Money Bills

114. (1) A money Bill may not deal with any matter other than those listed in the
definition of “ a money Bill” in clause (3).

(2) If, in the opinion of the Speaker of the National Assembly, a motion makes
provision for a matter mentioned in the definition of “a money Bill”, the
Assembly may proceed only in accordance with the recommendation of the
relevant Committee of the Assembly after taking into account the views of
the Cabinet Secretary responsible for finance.

(3) In this Constitution, “a money Bill” means a Bill, other than a Bill
mentioned in Article 218, that contains provisions dealing with—

(a) taxes;

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 (b) the imposition of charges on a public fund or the variation or repeal of
any of those charges;

(c) the appropriation of public money, receipt, custody, investment or

issue of public money;

(d) the raising or guaranteeing of any loan or its repayment; or

(e) matters incidental to any of those matters.

(4) In clause (3), “tax”, “public money”, and “loan” do not include any tax,
public money or loan raised by a county.

Presidential assent and referral

115. (1) Within fourteen days after receipt of a Bill, the President shall—

(a) assent to the Bill; or

(b) refer the Bill back to Parliament for reconsideration by Parliament,

noting any reservations that the President has concerning the Bill.

(2) If the President refers a Bill back for reconsideration, Parliament, following
the appropriate procedures mentioned in this Part, may—

(a) amend the Bill in light of the President’s reservations; or

(b) pass the Bill a second time without amendment.

(3) If Parliament has amended the Bill fully accommodating the President’s
reservations, the appropriate Speaker shall re-submit it to the President for
assent.

(4) Parliament, after considering the President’s reservations, may pass the Bill
a second time, without amendment, or with amendments that do not fully
accommodate the President’s reservations, by a vote supported—

(a) by two-thirds of members of the National Assembly; and

(b) two-thirds of the delegations in the Senate, if it is a Bill that requires

the approval of the Senate.

(5) If Parliament has passed a Bill under clause (4)—

(a) the appropriate Speaker shall within seven days re-submit it to the
President; and

(b) the President shall within seven days assent to the Bill.
75
 (6) If the President does not assent to a Bill or refer it back within the period
prescribed in clause (1), or assent to it under (5)(b), the Bill shall be taken
to have been assented to on the expiry of that period.

Coming into force of laws

116. (1) A Bill passed by Parliament and assented to by the President shall be
published in the Gazette as an Act of Parliament within seven days after the
assent.

(2) Subject to clause (3), an Act of Parliament comes into force on the
fourteenth day after its publication in the Gazette, unless the Act stipulates a
different date on or time at which it will come into force.

(3) An Act of Parliament that confers a direct pecuniary interest on members of

Parliament shall not come into force until after the next general election of
members of Parliament.

(4) Clause (3) does not apply to an interest that members of Parliament have as
members of the public.

Part 5—Parliament’s general procedures and rules

Powers, privileges and immunities

117. (1) There shall be freedom of speech and debate in Parliament.

(2) Parliament may, for the purpose of the orderly and effective discharge of
the business of Parliament, provide for the powers, privileges and
immunities of Parliament, its committees, the leader of the majority party,
the leader of the minority party, the chairpersons of committees and
members.

Public access and participation

118. (1) Parliament shall—

(a) conduct its business in an open manner, and hold its sittings and those
of its committees, in public; and

(b) facilitate public participation and involvement in the legislative and

other business of Parliament and its committees.

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 (2) Parliament may not exclude the public, or any media, from any sitting
unless in exceptional circumstances the relevant Speaker has determined
that there are justifiable reasons for the exclusion.

Right to petition Parliament

119. (1) Every person has a right to petition Parliament to consider any matter
within its authority, including to enact, amend or repeal any legislation.

(2) Parliament shall make provision for the procedure for the exercise of this
right.

Official languages of Parliament

120. (1) The official languages of Parliament shall be Kiswahili, English and sign
language, and the business of Parliament may be conducted in English,
Kiswahili and sign language.

(2) In case of a conflict between different language versions of an Act of

Parliament, the version signed by the President shall prevail.

Quorum

121. The quorum of Parliament shall be––

(a) fifty members, in the case of the National Assembly;

(b) fifteen members, in the case of the Senate.

Voting in Parliament

122. (1) Except as otherwise provided in this Constitution, any question proposed
for decision in either House of Parliament shall be determined by a majority
of the members in that House, present and voting.

(2) On a question proposed for decision in either House—

(a) the Speaker shall have no vote; and

(b) in the case of a tie, the question is lost.

(3) A member shall not vote on any question on which the member has a
pecuniary interest.

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 (4) In reckoning the number of members of a House of Parliament for any
purpose of voting in that House, the Speaker of that House shall not be
counted as a member.

Decisions of Senate

123. (1) On election, all the members of the Senate who were registered as voters in
a particular county shall collectively constitute a single delegation for
purposes of clause (4) and the member elected under Article 98 (1) (a) shall
be the head of the delegation.

(2) When the Senate is to vote on any matter other than a Bill, the Speaker shall
rule on whether the matter affects or does not affect counties.

(3) When the Senate votes on a matter that does not affect counties, each
senator has one vote.

(4) Except as provided otherwise in this Constitution, in any matter in the

Senate affecting counties—

(a) each county delegation shall have one vote to be cast on behalf of the
county by the head of the county delegation or, in the absence of the
head of the delegation, by another member of the delegation
designated by the head of the delegation;

(b) the person who votes on behalf of a delegation shall determine

whether or not to vote in support of, or against, the matter, after
consulting the other members of the delegation; and

(c) the matter is carried only if it is supported by a majority of all the

delegations.

Committees and Standing Orders

124. (1) Each House of Parliament may establish committees, and shall make
Standing Orders for the orderly conduct of its proceedings, including the
proceedings of its committees.

(2) Parliament may establish joint committees consisting of members of both

Houses and may jointly regulate the procedure of those committees.

(3) The proceedings of either House are not invalid just because of—

(a) a vacancy in its membership; or

78
 (b) the presence or participation of any person not entitled to be present
at, or to participate in, the proceedings of the House.

(4) When a House of Parliament considers any appointment for which its
approval is required under this Constitution or an Act of Parliament––

(a) the appointment shall be considered by a committee of the relevant

House;

(b) the committee’s recommendation shall be tabled in the House for

approval; and

(c) the proceedings of the committee and the House shall be in public.

Power to call for evidence

125. (1) Either House of Parliament, and any of its committees, has power to
summon any person to appear before it for the purpose of giving evidence
or providing information.

(2) For the purposes of clause (1), a House of Parliament and any of its
committees has the same powers as the High Court to—

(a) enforce the attendance of witnesses and examining them on oath,

affirmation or otherwise;

(b) compel the production of documents; and

(c) issue a commission or request to examine witnesses abroad.

Part 5—Miscellaneous

Location of sittings of Parliament

126. (1) A sitting of either House may be held at any place within Kenya, and may
commence at any time, that the House appoints.

(2) Whenever a new House is elected, the President, by notice in the Gazette,
shall appoint the place and date for the first sitting of the new House, which
shall be not more than thirty days after the election.

Parliamentary Service Commission

127. (1) There is established the Parliamentary Service Commission.

(2) The Commission consists of—

79
 (a) the Speaker of the National Assembly, as chairperson;

(b) a vice-chairperson elected by the Commission from the members

appointed under paragraph (c);

(c) seven members appointed by Parliament from among its members of

whom—

(i) four shall be nominated equally from both Houses by the

party or coalition of parties forming the national
government, of whom at least two shall be women; and

(ii) three shall be nominated by the parties not forming the

national government, at least one of whom shall be
nominated from each House and at least one of whom
shall be a woman; and

(d) one man and one woman appointed by Parliament from among
persons who are experienced in public affairs, but are not members of
Parliament.

(3) The Clerk of the Senate shall be the Secretary to the Commission.

(4) A member of the Commission shall vacate office—

(a) if the person is a member of Parliament—

(i) at the end of the term of the House of which the person is
a member; or

(ii) if the person ceases to be a member of Parliament; or

(b) if the person is an appointed member, on revocation of the person’s

appointment by Parliament.

(5) Despite clause (3), when the term of a House of Parliament ends, a member
of the Commission appointed under clause (2) (b) shall continue in office
until a new member has been appointed in their place by the next House.

(6) The Commission is responsible for—

(a) providing services and facilities to ensure the efficient and effective
functioning of Parliament;

(b) constituting offices in the parliamentary service, and appointing and

supervising office holders;
80
 (c) preparing annual estimates of expenditure of the parliamentary
service, and exercising budgetary control over the service;

(d) undertaking, singly or jointly with other relevant organisations,

programmes to promote the ideals of parliamentary democracy; and

(e) performing other functions—

(i) necessary for the well-being of the members and staff of

Parliament; or

(ii) prescribed by national legislation.

Clerks and staff of Parliament

128. (1) There shall be a Clerk for each House of Parliament, appointed by the
Parliamentary Service Commission with the approval of the relevant House.

(2) The offices of the Clerks and offices of members of the staff of the Clerks
shall be offices in the Parliamentary Service.

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 CHAPTER NINE

THE EXECUTIVE

Part 1—Principles and Structure of the National Executive

Principles of executive authority

129. (1) Executive authority derives from the people of Kenya and shall be
exercised in accordance with this Constitution.

(2) Executive authority is to be exercised in a manner compatible with the

principle of service to the people of Kenya, and for their well-being and
benefit.

The National Executive

130. (1) The national executive of the Republic comprises the President, the Deputy
President and the rest of the Cabinet.

(2) The composition of the national executive shall reflect the regional and
ethnic diversity of the people of Kenya.

Part 2—The President and Deputy President

Authority of the President

131. (1) The President—

(a) is the Head of State and Government;

(b) exercises the executive authority of the Republic, with the assistance
of the Deputy President and Cabinet Secretaries;

(c) is the Commander-in-Chief of the Kenya Defence Forces;

(d) is the chairperson of the National Security Council; and

(e) is a symbol of national unity.

(2) The President shall—

(a) respect, uphold and safeguard this Constitution;

(b) safeguard the sovereignty of the Republic;

(c) promote and enhance the unity of the nation;

82
 (d) promote respect for the diversity of the people and communities of
Kenya; and

(e) ensure the protection of human rights and fundamental freedoms and
the rule of law.

(3) The President shall not hold any other State or public office.

Functions of the President

132. (1) The President shall—

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

(b) address a special sitting of Parliament once every year and may
address Parliament at any other time;

(c) once every year—

(i) report, in an address to the nation, on all the measures

taken and the progress achieved in the realisation of the
national values, mentioned in Article 10;

(ii) publish in the Gazette the details of the measures and

progress mentioned in sub-paragraph (i); and

(iii) submit a report for debate to the National Assembly on

the progress made in fulfilling the international
obligations of the Republic.

(2) The President shall nominate and, with the approval of the National
Assembly, appoint, and may dismiss —

(a) the Cabinet Secretaries, in accordance with Article 152;

(b) the Attorney-General, in accordance with Article 156;

(c) the Secretary to the Cabinet in accordance with Article 154;

(d) Principal Secretaries in accordance with Article 155;

(e) high commissioners, ambassadors and diplomatic and consular

representatives; and

(f) in accordance with this Constitution, any other State or public officer
whom this Constitution requires or empowers the President to appoint
or dismiss.
83
 (3) The President shall—

(a) chair Cabinet meetings;

(b) direct and co-ordinate the functions of ministries and government

departments; and

(c) by a decision published in the Gazette, assign responsibility for the

implementation and administration of any Act of Parliament to a
Cabinet Secretary, to the extent not inconsistent with any Act of
Parliament.

(4) The President may—

(a) perform any other executive function provided for in this Constitution
or in national legislation and, except as otherwise provided for in this
Constitution, may establish an office in the public service in
accordance with the recommendation of the Public Service
Commission;

(b) receive foreign diplomatic and consular representatives;

(c) confer honours in the name of the people and the Republic;

(d) subject to Article 58, declare a state of emergency; and

(e) with the approval of Parliament, may declare war.

(5) The President shall ensure that the international obligations of the Republic
are fulfilled through the actions of the relevant Cabinet Secretaries.

Power of mercy

133. (1) On the petition of any person, the President may exercise a power of mercy
in accordance with the advice of the Advisory Committee mentioned in
clause (2), by—

(a) granting a free or conditional pardon to a person convicted of an

offence;

(b) postponing the carrying out of a punishment, either for a mentioned or

indefinite period;

(c) substituting a less severe form of punishment; or

(d) remitting all or part of a punishment.

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 (2) There shall be an Advisory Committee on the Power of Mercy,
comprising—

(a) the Attorney-General;

(b) the Cabinet Secretary responsible for correctional services; and

(c) at least five other members as prescribed by an Act of Parliament,

none of whom may be a State officer or in public service.

(3) An Act of Parliament shall provide for—

(a) the tenure of the members of the Advisory Committee;

(b) the procedure of the Advisory Committee; and

(c) criteria that shall be applied by the Advisory Committee in

formulating its advice.

(4) The Advisory Committee may take into account the views of the victims of
the offence in respect of which it is considering making recommendations
to the President.

Exercise of presidential powers during temporary incumbency

134. (1) A person who holds the office of President or who is authorised in terms of
this Constitution to exercise the powers of the President —

(a) during the period commencing on the date of the first vote in a
presidential election, and ending when the newly elected President
assumes office; or

(b) while the President is absent or incapacitated, or at other times

contemplated in Article 147 (3),

may not exercise the powers of the President mentioned in clause (2).

(2) The powers are—

(a) the nomination or appointment of the judges of the superior courts;

(b) the nomination or appointment of any other public officer whom this
Constitution or legislation requires the President to appoint;

(c) the nomination or appointment or dismissal of Cabinet Secretaries

and other State or Public officers;

85
 (d) the nomination or appointment or dismissal of a high commissioner,
ambassador, or diplomatic or consular representative;

(e) the power of mercy; and

(f) the authority to confer honours in the name of the people and
Republic.

Decisions of the President

135. A decision of the President in the performance of any function of the

President under this Constitution shall be in writing and shall bear the seal
and signature of the President.

Election of the President

136. (1) The President shall be elected by registered voters in a national election
conducted in accordance with this Constitution and any Act of Parliament
regulating presidential elections.

(2) An election of the President shall be held–––

(a) on the same day as a general election of Members of Parliament,

being the second Tuesday in August, in every fifth year; or

(b) in the circumstances contemplated in Article 146.

Qualifications and disqualifications for election as President

137. (1) A person qualifies for nomination as a presidential candidate if the

person—

(a) is a citizen by birth;

(b) is qualified to stand for election as a member of Parliament;

(c) is nominated by a political party, or is an independent candidate; and

(d) is nominated by not fewer than two thousand voters from each of a
majority of the counties.

(2) A person is not qualified for nomination as a presidential candidate if the

person—

(a) owes allegiance to a foreign state; or

(b) is a public officer, or is acting in any State or other public office.

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 (3) Clause (2) (b) shall not apply to—

(a) the President;

(b) the Deputy President; or

(c) a member of Parliament.

Procedure at presidential election

138. (1) If only one candidate for President is nominated, that candidate shall be
declared elected.

(2) If two or more candidates for President are nominated, an election shall be
held in each constituency.

(3) In a presidential election—

(a) all persons registered as voters for the purposes of parliamentary

elections are entitled to vote;

(b) the poll shall be taken by a secret ballot on the day mentioned in
Article 101 (1) at the time, in the places and in the manner prescribed
under an Act of Parliament; and

(c) after counting the votes in the polling stations, the Independent
Electoral and Boundaries Commission shall tally and verify the count
and declare the result.

(4) A candidate shall be declared elected as President if the candidate

receives—

(a) more than half of all the votes cast in the election; and

(b) at least twenty-five per cent of the votes cast in each of more than half
of the counties.

(5) If no candidate is elected, a fresh election shall be held within thirty days
after the previous election and in that fresh election the only candidates
shall be—

(a) the candidate, or the candidates, who received the greatest number of
votes; and

(b) the candidate, or the candidates, who received the second greatest
number of votes.

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 (6) If more than one candidate receives the greatest number of votes, clause (5)
(b) shall not apply and the only candidates in the fresh election shall be
those contemplated in clause (5) (a).

(7) The candidate who receives the most votes in the fresh election shall be
declared elected as President.

(8) A presidential election shall be cancelled and a new election held if—

(a) no person has been nominated as a candidate before the expiry of the
period set for the delivery of nominations;

(b) a candidate for election as President or Deputy President dies on or

before the scheduled election date; or

(c) a candidate who would have been entitled to be declared elected as

President, dies before being declared elected as President.

(9) A new presidential election under clause (8) shall be held within sixty days
after the date set for the previous presidential election.

(10) Within seven days after the presidential election, the chairperson of the
Independent Electoral and Boundaries Commission shall—

(a) declare the result of the election; and

(b) deliver a written notification of the result to the Chief Justice and the
incumbent President.

Death before assuming office

139. (1) If a President-elect dies after being declared elected as President, but before
assuming office––

(a) the Deputy President-elect shall be sworn in as acting President on the

date on which the President-elect would otherwise have been sworn-
in; and

(b) a fresh election to the office of President shall be held within sixty
days after the death of the President-elect.

(2) If the Deputy President-elect dies before assuming office, the office of the
Deputy President shall be declared vacant on the assumption of office by
the person declared elected as the President.

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 (3) If both the persons declared elected as the President and the Deputy
President die before assuming office––

(a) the Speaker of the National Assembly shall act as President from the
date on which the President-elect would otherwise have been sworn-
in; and

(b) a fresh presidential election shall be conducted within sixty days after
the second death.

Questions as to validity of presidential election

140. (1) A person may file a petition in the Supreme Court to challenge the election
of the President-elect within seven days after the date of the declaration of
the results of the presidential election.

(2) Within fourteen days after the filing of a petition under clause (1), the
Supreme Court shall hear and determine the petition and its decision shall
be final.

(3) If the Supreme Court determines the election of the President-elect to be

invalid a fresh election shall be held within sixty days after the
determination.

Assumption of office of President

141. (1) The swearing in of the President-elect shall be in public before the Chief
Justice, or, in the absence of the Chief Justice, the Deputy Chief Justice.

(2) The President-elect shall be sworn in on the first Tuesday following––

(a) the fourteenth day after the date of the declaration of the result of the
presidential election, if no petition has been filed under Article 140;
or

(b) the seventh day following date on which the court renders a decision
declaring the election to be valid, if any petition has been filed under
Article 140.

(3) The President-elect assumes office by taking and subscribing the oath or
affirmation of allegiance, and the oath or affirmation for the execution of
the functions of office, as prescribed in the Third Schedule.

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 (4) Parliament shall by legislation provide for the procedure and ceremony for
the swearing-in of a President-elect.

Term of office of President

142. (1) The President shall hold office for a term beginning on the date on which
the President was sworn in, and ending when the person next elected
President in accordance with Article 136 (2) (a) is sworn in.

(2) A person shall not hold office as President for more than two terms.

Protection from legal proceedings

143. (1) Criminal proceedings shall not be instituted or continued in any court
against the President or a person performing functions of that office, during
their tenure of office.

(2) Civil proceedings shall not be instituted in any court against the President
or the person performing the functions of that office during their tenure of
office in respect of anything done or not done in the exercise of their
powers under this Constitution.

(3) Where provision is made in law limiting the time within which proceedings
as contemplated in clause (1) or (2) may be brought against a person, a
period of time during which the person holds or performs the functions of
the office of the President shall not be taken into account in calculating the
period of time prescribed by that law.

(4) The immunity of the President under this Article shall not extend to a crime
for which the President may be prosecuted under any treaty to which Kenya
is party and which prohibits such immunity.

Removal of President on grounds of incapacity

144. (1) A member of the National Assembly, supported by at least a quarter of all
the members may move a motion for the investigation of the President’s
physical or mental capacity to perform the functions of office.

(2) If a motion under clause (1) is supported by a majority of all the members
of the National Assembly—

(a) the Speaker shall inform the Chief Justice of that resolution within
two days; and
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 (b) the President shall continue to perform the functions of the office
pending the outcome of the proceedings required by this Article.

(3) Within seven days after receiving notice of the resolution from the Speaker,
the Chief Justice shall appoint a tribunal consisting of—

(a) three persons who are qualified to practise medicine under the laws of
Kenya, nominated by the body which by law is responsible for
regulating the professional practice of medicine;

(b) one advocate of the High Court nominated by the body which by law
is responsible for regulating the professional practice of advocates;
and

(c) one person nominated by the President.

(4) If the Chief Justice is unable to appoint a tribunal under clause (3), the
Deputy Chief Justice shall appoint such a tribunal.

(5) If the President is unable to nominate the seventh person, the person shall
be nominated by––

(a) a member of the family of the President; or

(b) where no such member is willing or able to make the nomination, by

a close relative of the President.

(6) The tribunal shall inquire into the matter and, within fourteen days after the
appointment, report to the Chief Justice and to the Speaker of the National
Assembly.

(7) The Speaker shall cause the report of the tribunal to be tabled before the
National Assembly within seven days after receiving it.

(8) The report of the tribunal shall be final and not subject to appeal and if the
tribunal reports that the President is capable of performing the functions of
the office, the Speaker of the National Assembly shall so announce in the
National Assembly.

(9) If the tribunal reports that the President is incapable of performing the
functions of the office, the National Assembly shall vote whether to ratify
the report.

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 (10) If a majority of of all the members of the National Assembly vote in favour
of ratifying the report, the President shall cease to hold office.

Removal of President by impeachment

145. (1) A member of the National Assembly, supported by at least a third of all the
members, may move a motion for the impeachment of the President—

(a) on the ground of a gross violation of a provision of this Constitution

or of any other law;

(b) because there are serious reasons for believing that the President has
committed a crime under national or international law; or

(c) for gross misconduct.

(2) If a motion under clause (1), is supported by at least two-thirds of all the
members of the National Assembly –

(a) the Speaker shall inform the Speaker of the Senate of that resolution
within two days; and

(b) the President shall continue to perform the functions of the office
pending the outcome of the proceedings required by this Article.

(3) Within seven days after receiving notice of a resolution from the Speaker of
the National Assembly—

(a) the Speaker of the Senate shall convene a meeting of the Senate to
hear charges against the President; and.

(b) the Senate, by resolution, may appoint a special committee

comprising eleven of its members to investigate the matter.

(4) A special committee appointed under clause (3) (b) shall –

(a) investigate the matter; and

(b) report to the Senate within ten days whether it finds the particulars of
the allegations against the President to have been substantiated.

(5) The President shall have the right to appear and be represented before the
special committee during its investigations.

(6) If the special committee reports that the particulars of any allegation against
the President –

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 (a) have not been substantiated, further proceedings shall not be taken
under this Article in respect of that allegation; or

(b) have been substantiated, the Senate shall, after according the
President an opportunity to be heard, vote on the impeachment
charges.

(7) If at least two-thirds of all the members of the Senate vote to uphold any
impeachment charge, the President shall cease to hold office.

Vacancy in the office of President

146. (1) The office of President shall become vacant if the holder of the office—

(a) dies;

(b) resigns in writing addressed to the Speaker of the National Assembly;

or

(c) otherwise ceases to hold office under Article 144 or 145, or any other
provision of this Constitution.

(2) When a vacancy occurs in the office of President –

(a) the Deputy President shall assume office as President for the
remainder of the term of the President; or

(b) if the office of Deputy President is vacant, or the Deputy President is

unable to assume the office of President, the Speaker of the National
Assembly shall act as President and an election to the office of
President shall be held within sixty days after the vacancy arose in the
office of President.

(3) A person who assumes the office of President under clause (2) (a), or
following an election required by clause (2) (b), shall, unless otherwise
removed from office under this Constitution, hold office until a newly
elected President is sworn–in following the next regularly scheduled
election under Article 136 (1).

(4) If the Deputy President assumes office as President under clause (2) (a), or
a person is elected to the office of President under clause (2) (b), the Deputy
President, or the person elected, shall be deemed for the purposes of Article
142 (2)—

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 (a) to have served a full term as President if, at the date on which the
person assumed office, more than two and a half years remain before
the date of the next regularly scheduled election under Article 136
(1); or

(b) not to have served a term of office as President, in any other case.

Functions of the Deputy President

147. (1) The Deputy President shall be the principal assistant of the President and
shall deputise for the President in the execution of the President’s functions.

(2) The Deputy President shall perform the functions conferred by this
Constitution and any other functions of the President as the President may
assign.

(3) Subject to Article 134, when the President is absent or is temporarily

incapacitated, and during any other period that the President decides, the
Deputy President shall act as the President.

(4) The Deputy President shall not hold any other State or public office.

Election and swearing in of Deputy President

148. (1) Each candidate in a presidential election shall nominate a person who is
qualified for nomination for election as President, as a candidate for Deputy
President.

(2) For the purposes of clause (1), there shall be no separate nomination
process for the Deputy President and Article 137 (1) (d) shall not apply to a
candidate for Deputy President.

(3) The Independent Electoral and Boundaries Commission shall declare the
candidate nominated by the person who is elected as the President to be
elected as the Deputy President.

(4) The swearing in of the Deputy President-elect shall be before the Chief
Justice or in the absence of the Chief Justice, the Deputy Chief Justice and
in public.

(5) The Deputy President-elect assumes office by taking and subscribing—

(a) the oath or affirmation of allegiance; and

94
 (b) the oath or affirmation for the execution of the functions of office,

as prescribed in the Third Schedule.

(6) The term of office of the Deputy President shall run from the date of the
swearing in of the Deputy President, and shall end—

(a) when the person next elected President at an election under Article
136 (1) is sworn in;

(b) on the Deputy President assuming the office of President; or

(c) on resignation, death or removal of the Deputy President from office.

(7) The Deputy President may resign from office at any time by notice in
writing addressed to the President and the resignation shall take effect on
the date and at the time mentioned in the notice, if any, or if a date is not
mentioned, at noon on the day after the notice is delivered.

(8) A person shall not hold office as Deputy President for more than two terms.

Vacancy in the office of Deputy President

149. (1) Within fourteen days after a vacancy in the office of Deputy President
arises, the President shall nominate a person to fill the vacancy, and the
National Assembly shall vote on the nomination within sixty days after
receiving it.

(2) If a person assumes office as Deputy President under clause (1), then, for
the purposes of Article 148 (8), the person shall be deemed—

(a) to have served a full term as Deputy President if, at the date on which
the person assumed office, more than two and a half years remain
before the date of the next regularly scheduled election under Article
136 (1); or

(b) not to have served a term of office as Deputy President, in any other
case.

Removal of Deputy President

150. (1) The Deputy President may be removed from office—

(a) on the ground of physical or mental incapacity to perform the

functions of office;

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 (b) on impeachment—

(i) on the ground of a gross violation of a provision of this

Constitution or any other law;

(ii) because there are serious reasons to believe that the

Deputy President has committed a crime under national or
international law; or

(iii) for gross misconduct.

(2) The provisions of Articles 144 and 145 relating to the removal of the
President shall apply, with the necessary modifications, to the removal of
the Deputy President.

Remuneration and benefits of President and Deputy President

151. (1) The remuneration and benefits payable to the President and the Deputy
President shall be a charge on the Consolidated Fund.

(2) The remuneration, benefits and privileges of the President and Deputy
President shall not be varied to their disadvantage while in office.

(3) The retirement benefits payable to a former President and a former Deputy
President, the facilities available to, and privileges enjoyed by, them shall
not be varied to their disadvantage during their lifetime.

Part 3 – The Cabinet

Cabinet

152. (1) The Cabinet consists of—

(a) the President;

(b) the Deputy President;

(c) the Attorney-General; and

(d) not fewer than fourteen and not more than twenty-two Cabinet
Secretaries.

(2) The President shall nominate and, with the approval of the National
Assembly, appoint Cabinet Secretaries.

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(3) A Cabinet Secretary shall not be a Member of Parliament.

(4) Each person appointed as a Cabinet Secretary—

(a) assumes office by swearing or affirming faithfulness to the people and

Republic of Kenya and obedience to this Constitution, before the
President and in accordance with the Fourth Schedule; and

(b) may resign by delivering a written statement of resignation to the

President.

(5) The President––

(a) may re-assign a Cabinet Secretary;

(b) may dismiss a Cabinet Secretary; and

(c) shall dismiss a Cabinet Secretary if required to do so by a resolution

adopted under clauses (6) to (10).

(6) A member of the National Assembly, supported by at least one-quarter of

all the members of the Assembly, may propose a motion requiring the
President to dismiss a Cabinet Secretary—

(a) on the ground of a gross violation of a provision of this Constitution

or of any other law;

(b) because there are serious reasons for believing that the Cabinet
Secretary has committed a crime under national or international law;
or

(c) for gross misconduct.

(7) If a motion under clause (5) is supported by at least one-third of the

members of the National Assembly—

(a) the Assembly shall appoint a select committee comprising eleven of

its members to investigate the matter; and

(b) within ten days the select committee shall report to the Assembly
whether it finds the allegations against the Cabinet Secretary to be
substantiated.

(8) The Cabinet Secretary has the right to appear and be represented before the
select committee during its investigations.

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 (9) If the select committee reports that it find the allegations––

(a) unsubstantiated, no further proceedings shall be taken; or

(b) substantiated, the National Assembly shall––

(i) afford the Cabinet Secretary an opportunity to be heard;

and

(ii) vote whether to approve the resolution requiring the

Cabinet Secretary to be dismissed.

(10) If a resolution under clause (8) (b) (ii) requiring the President to dismiss a
Cabinet Secretary is supported by a majority of the members of the
National Assembly––

(a) the Speaker shall promptly deliver the resolution to the President; and

(b) the president shall dismiss the Cabinet Secretary.

Decisions, responsibility and accountability of the Cabinet

153. (1) A decision by the Cabinet shall be in writing.

(2) Cabinet Secretaries are accountable individually, and collectively, to the

President for the exercise of their powers and the performance of their
functions.

(3) A Cabinet Secretary shall attend before a committee of the National

Assembly or the Senate, when required by the committee, and answer any
question concerning a matter for which the Cabinet Secretary is responsible.

(4) Cabinet Secretaries shall –

(a) act in accordance with this Constitution; and

(b) provide Parliament with full and regular reports concerning matters
under their control.

Secretary to the Cabinet

154. (1) There is established the office of Secretary to the Cabinet, which is an
office in the public service.

(2) The Secretary to the Cabinet shall—

98
 (a) be nominated and, with the approval of the National Assembly,
appointed by the President; and

(b) may be dismissed by the President.

(3) The Secretary to the Cabinet shall—

(a) have charge of the Cabinet office;

(b) be responsible, subject to the directions of the Cabinet, for arranging

the business, and keeping the minutes, of the Cabinet;

(c) convey the decisions of the Cabinet to the appropriate persons or

authorities; and

(d) have other functions as directed by the Cabinet.

(4) The Secretary to the Cabinet may resign from office by giving notice in
writing to the President.

Principal Secretaries

155. (1) There is established the office of Principal Secretary, which is an office in
the public service.

(2) Each Ministry or State department shall be under the administration of a

Principal Secretary.

(3) The President shall—

(a) nominate a person for appointment as Principal Secretary; and from

among persons recommended by the Public Service Commission; and

(b) with the approval of the National Assembly, appoint Principal

Secretaries.

(4) The President may re-assign a Prinicpal Secretary.

(5) A Principal Secretary may resign from office by giving notice to the
President.

Part 4—Other offices

Attorney-General

156. (1) There is established the office of Attorney-General.

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 (2) The Attorney-General shall be nominated by the President and, with the
approval of the National Assembly, appointed by the President.

(3) The qualifications for appointment as Attorney-General are the same as for
appointment to the office of Chief Justice.

(4) The Attorney-General—

(a) is the principal legal adviser to the Government;

(b) shall represent the national government in court or in any other legal
proceedings to which the national government is a party, other than
criminal proceedings; and

(c) shall perform any other functions conferred on the office by an Act
of Parliament or by the President.

(5) The Attorney-General shall have authority, with the leave of the court, to
appear as a friend of the court in any civil proceedings to which the
Government is not a party.

(6) The Attorney-General shall promote, protect and uphold the rule of law and
defend the public interest.

(7) The powers of the Attorney-General may be exercised in person or by

subordinate officers acting in accordance with general or special
instructions.

Director of Public Prosecutions

157. (1) There is established the office of Director of Public Prosecutions.

(2) The Director of Public Prosecutions shall be nominated and, with the
approval of the National Assembly, appointed by the President.

(3) The qualifications for appointment as Director of Public Prosecutions are

the same as for the appointment as a judge of the High Court.

(4) The Director of Public Prosecutions shall have power to direct the
Inspector-General of the National Police Service to investigate any
information or allegation of criminal conduct and the Inspector-General
shall comply with such direction.

(5) The Director of Public Prosecutions shall hold office for a term of eight
years and shall not be eligible for re-appointment.
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(6) The Director of Public Prosecutions shall exercise State powers of
prosecution and may—

(a) institute and undertake criminal proceedings against any person

before any court (other than a court martial) in respect of any offence
alleged to have been committed;

(b) take over and continue any criminal proceedings commenced in any
court (other than a court martial) that have been instituted or
undertaken by another person or authority, with the permission of the
person or authority; and

(c) subject to clause (7), discontinue at any stage before judgment is

delivered any criminal proceedings instituted by the Director of
Public Prosecutions or taken over by the Director of Public
Prosecutions under paragraph (b).

(7) If discontinuance mentioned in clause (5) (c) takes place after the close of
the prosecution case, the defendant shall be acquitted.

(8) The Director of Public Prosecutions may not discontinue a prosecution

without the permission of the court.

(9) The powers of the Director of Public Prosecutions may be exercised in

person or by subordinate officers acting in accordance with general or
special instructions.

(10) The Director of Public Prosecutions shall not require the consent of any
person or authority for the commencement of criminal proceedings and in
the exercise of his or her powers or functions shall not be under the
direction or control of any person or authority.

(11) In exercising the powers conferred by this Article, the Director of Public
Prosecutions shall have regard to the public interest, the interests of the
administration of justice and the need to prevent and avoid abuse of the
legal process.

(12) Parliament may enact legislation conferring powers of prosecution on

authorities other than the Director of Public Prosecutions.

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Removal and resignation of Director of Public Prosecutions

158. (1) The Director of Public Prosecutions may be removed from office only on
the grounds of—

(a) inability to perform the functions of office arising from mental or

physical incapacity;

(b) non-compliance with Chapter Six;

(c) bankruptcy;

(d) incompetence; or

(e) gross misconduct or misbehaviour.

(2) A person desiring the removal of the Director of Public Prosecutions may
present a petition to the Public Service Commission which, despite Article
251 (2), shall be in writing, setting out the alleged facts constituting the
grounds for the removal of the Director.

(3) The Public Service Commission shall consider the petition and, if it is
satisfied that it discloses the existence of a ground under clause (1), it shall
send the petition to the President.

(4) On receipt and examination of the petition, the President shall within
fourteen days suspend the Director of Public Prosecutions from office
pending action by the President in accordance with clause (5) and, acting in
accordance with the advice of the Public Service Commission, shall appoint
a tribunal consisting of—

(a) four members from among persons who hold or have held office as a
judge of a superior court, or who are qualified to be appointed as
such;

(b) one advocate of at least fifteen years’ standing nominated by the

statutory body responsible for the professional regulation of
advocates; and

(c) two other persons with experience in public affairs.

(5) The tribunal shall inquire into the matter expeditiously and report on the
facts and make recommendations to the President, who shall act in
accordance with the recommendations of the tribunal.

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(6) The Director of Public Prosecutions who is suspended from office under
clause (4) shall be entitled to half of their remuneration until they removed
from, or reinstated in, office.

(7) A tribunal appointed under clause (4) (b) shall elect a chairperson from
among its members.

(8) A tribunal appointed under clause (4) (a) and (b) shall be responsible for the
regulation of its proceedings.

(9) The Director of Public Prosecutions may resign from office by giving
notice to the President.

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 CHAPTER TEN

JUDICIARY

Part 1—Judicial authority and legal system

Judicial authority

159. (1) Judicial authority is derived from the people and vests in, and shall be
exercised by, the courts and tribunals established by or under this
Constitution.

(2) In exercising judicial authority, the courts and tribunals shall be guided by
the following principles—

(a) justice shall be done to all irrespective of status;

(b) justice shall not be delayed;

(c) alternative forms of dispute resolution including reconciliation,

mediation, arbitration and traditional dispute resolution mechanisms
shall be promoted, subject to clause (3);

(d) justice shall be administered without undue regard to procedural

technicalities; and

(e) the purpose and principles of this Constitution shall be protected and
promoted.

(3) Traditional dispute resolution mechanisms shall not be used in a way that—

(a) contravenes the Bill of Rights;

(b) is repugnant to justice and morality or results in outcomes that are

repugnant to justice or morality; or

(c) is inconsistent with this Constitution or any written law.

Independence of the Judiciary

160. (1) In the exercise of judicial authority, the Judiciary, as constituted by Article
161, shall be subject only to this Constitution and the law and shall not be
subject to the control or direction of any person or authority.

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 (2) The office of a judge of a superior court shall not be abolished while there
is a substantive holder of the office.

(3) The remuneration and benefits payable to or in respect of judges shall be a

charge on the Consolidated Fund.

(4) The remuneration and benefits payable to, or in respect of, a judge shall not Comment [PK8]: Consider the relationship of
this clause with Art. 258, once the CoE has
be varied to the disadvantage of that judge, and the retirement benefits of a considerd that clause in light of the PSC proposals

retired judge shall not be varied to the disadvantage of the retired judge
during the lifetime of that retired judge.

(5) A member of the Judiciary is not liable in an action or suit in respect of

anything done or omitted to be done in good faith in the lawful performance
of a judicial function.

Judicial offices and officers

161. (1) The Judiciary consists of the judges of the superior courts, magistrates,
other judicial officers and staff.

(2) There is established the office of––

(a) Chief Justice, who shall be the Head of the Judiciary;

(b) Deputy Chief Justice, who shall be the Deputy Head of the Judiciary;
and

(c) Chief Registrar of the Judiciary, who is the chief administrator and
accounting officer of the Judiciary.

(3) The Judicial Service Commission may establish other offices of registrar as
may be necessary.

System of courts

162. (1) The superior courts are the Supreme Court, the Court of Appeal, the High
Court and the courts mentioned in clause (2).

(2) Parliament shall establish courts with the status of the High Court to hear
and determine disputes relating to—

(a) employment and labour relations; and

(b) the environment and the use and occupation of, and the title to, land.

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 (3) Parliament shall determine the jurisdiction and functions of the courts
contemplated in clause (2).

(4) The subordinate courts are the courts established under Article 169, or by
Parliament in terms of that Article.

Part 2—Superior Courts

Supreme Court

163. (1) There is established the Supreme Court, which consists of—

(a) the Chief Justice, who shall be the president of the court;

(b) the Deputy Chief Justice, who shall—

(i) deputise for the Chief Justice; and

(ii) be the vice-president of the court; and

(c) five other judges.

(2) The Supreme Court shall be properly constituted for the purposes of its
proceedings if it is composed of five judges.

(3) The Supreme Court shall have—

(a) exclusive original jurisdiction to hear and determine disputes relating

to the elections to the office of President arising under Article 140;
and

(b) subject to clause (4) and (5), appellate jurisdiction to hear and
determine appeals from—

(i) the Court of Appeal; and

(ii) any other court or tribunal as prescribed by national

legislation.

(4) Appeals shall lie from the Court of Appeal to the Supreme Court—

(a) as of right in any case involving the interpretation or application of

this Constitution; and

106
 (b) in any other case in which the Supreme Court, or the Court of Appeal,
certifies that a matter of general public importance is involved,
subject to clause (5).

(5) A certification by the Court of Appeal under clause (5) (b) may be reviewed
by the Supreme Court, and either affirmed, varied or overturned.

(6) The Supreme Court may give an advisory opinion at the request of the
national government, any State organ, or any county government with
respect to any matter concerning county government.

(7) All courts, other than the Supreme Court, are bound by the decisions of the
Supreme Court.

(8) The Supreme Court shall make rules for the exercise of its jurisdiction.

(9) An Act of Parliament may make further provision for the operation of the
Supreme Court.

Court of Appeal

164. (1) There is established a Court of Appeal, which—

(a) shall consist of the number of judges, being not fewer than twelve, as
prescribed by an Act of Parliament; and

(b) shall be organised and administered in the manner prescribed by an

Act of Parliament.

(2) There shall be a president of the Court of Appeal who shall be elected by
the judges of the Court of Appeal from among themselves.

(3) The Court of Appeal has jurisdiction to hear appeals from—

(a) the High Court; and

(b) any other court or tribunal as prescribed by an Act of Parliament.

High Court

165. (1) There is established the High Court, which—

(a) consists of the number of judges prescribed by an Act of Parliament;

and

(b) shall be organised and administered in the manner prescribed by an

Act of Parliament.
107
(2) There shall be a Principal Judge of the High Court, who shall be elected by
the judges of the High Court from among themselves.

(3) Subject to clause (4), the High Court has—

(a) unlimited original jurisdiction in criminal and civil matters;

(b) jurisdiction to determine the question whether a right or fundamental

freedom in the Bill of Rights has been denied, violated, infringed or
threatened;

(c) jurisdiction to hear an appeal from a decision of a tribunal appointed

under this Constitution to consider the removal of a person from
office, other than a tribunal appointed under Article 144;

(d) jurisdiction to hear any question respecting the interpretation of this

Constitution including the determination of—

(i) the question whether any law is inconsistent with or in

contravention of this Constitution;

(ii) the question whether anything said to be done under the

authority of this Constitution or of any law is inconsistent
with, or in contravention of, this Constitution;

(iii) any matter relating to constitutional powers of State

organs in respect of county governments and any matter
relating to the constitutional relationship between the
levels of government; and

(iv) a question relating to conflict of laws under Article 191.

(e) any other jurisdiction, original or appellate, conferred on it by

legislation.

(4) Any matter certified by the court as raising a substantial question of law
under clause (3) (b) or (d) shall be heard by an uneven number of judges,
being not less than three, assigned by the Chief Justice.

(5) The High Court does not have jurisdiction in respect of matters—

(a) reserved for the exclusive jurisdiction of the Supreme Court under
this Constitution;

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 (b) falling within the jurisdiction of the courts contemplated in Article
162 (2).

(6) The High Court has supervisory jurisdiction over the subordinate courts and
over any person, body or authority, exercising a judicial or quasi-judicial
function, but not over a superior court.

(7) For the purposes of clause (6), the High Court may call for the record of
any proceedings before any subordinate court or person, body or authority
mentioned in clause (6), and may make any order or give any direction it
considers appropriate to ensure the fair administration of justice.

Appointment of Chief Justice, Deputy Chief Justice and other judges

166. (1) The President shall appoint—

(a) the Chief Justice and the Deputy Chief Justice, in accordance with the
recommendation of the Judicial Service Commission, and subject to
the approval of the National Assembly; and

(b) all other judges, in accordance with the recommendation of the

Judicial Service Commission.

(2) Each judge of a superior court shall be appointed from among persons
who—

(a) hold a law degree from a recognised university, or are advocates of

the High Court of Kenya, or possess equivalent qualification in a
common law jurisdiction;

(b) possess the experience required under clause (3) to (6) as applicable,
irrespective whether that experience was gained in Kenya or in
another Commonwealth common law jurisdiction; and

(c) have a high moral character, integrity and impartiality.

(3) The Chief Justice and each other judge of the Supreme Court shall be
appointed from among persons who have—

(a) at least fifteen years experience as a superior court judge; or

(b) at least fifteen years experience as a distinguished academic, judicial

officer, legal practitioner or such experience in other relevant legal
fields; or
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 (c) held the qualifications mentioned in paragraphs (a) and (b) for a
period amounting, in the aggregate, to fifteen years;

(4) Each judge of the Court of Appeal shall be appointed from among persons
who have—

(a) at least ten years experience as superior court judge; or

(b) at least ten years experience as a distinguished academic or legal

practitioner or such experience in other relevant legal fields; or

(c) held the qualifications mentioned in paragraphs (a) and (b) for a
period amounting, in the aggregate, to ten years.

(5) Each judge of the High Court shall be appointed from among persons who
have—

(a) at least ten years experience as a superior court judge or

professionally qualified magistrate or;

(b) at least ten years experience as a distinguished academic or legal

practitioner or such experience in other relevant legal field; or

(c) held the qualifications mentioned in paragraphs (a) and (b) for a
period amounting, in the aggregate, to ten years.

Tenure of office of the Chief Justice and other judges

167. (1) A judge shall retire from office on attaining the age of seventy years, but
may elect to retire at any time after attaining the age of sixty –five years.

(2) The Chief Justice shall hold office for a maximum of ten years or until
retiring under clause (1), whichever occurs first.

(3) If the Chief Justice’s term of office expires before the Chief Justice retires
under clause (1), the Chief Justice may continue in office as a judge of the
Supreme Court.

(4) If, on the expiry of the term of office of a Chief Justice, the Chief Justice
opts to remain on the court under clause (3), the next person appointed as
Chief Justice may be selected in accordance with Article 166 (1) even
though that appointment may result in there being more than the maximum
permitted number of Supreme Court judges holding office.

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 (5) The Chief Justice and any other judge may resign from office by giving
notice in writing to the President.

Removal from office

168. (1) A judge of a superior court may be removed from office only on the
grounds of—

(a) inability to perform the functions of office arising from mental or

physical incapacity;

(b) a breach of a code of conduct prescribed for judges of the superior

courts by an Act of Parliament;

(c) bankruptcy;

(d) incompetence; or

(e) gross misconduct or misbehaviour.

(2) The removal of a judge may be initiated only by the Judicial Service
Commission, acting on its own motion or on the petition of any person to
the Judicial Service Commission.

(3) A petition by a person to the Judicial Service Commission under clause (2)
shall be in writing, setting out the alleged facts constituting the grounds for
the judges removal.

(4) The Judicial Service Commission shall consider the petition and, if it is
satisfied that the petition discloses a ground under clause (1), send the
petition to the President.

(5) Within fourteen days after receiving the petition, the President shall
suspend the judge from office and, acting in accordance with the
recommendation of the Judicial Service Commission—

(a) in the case of the Chief Justice, appoint a tribunal consisting of—

(i) the Speaker of the National Assembly, as chairperson;

(ii) three superior court judges from common-law

jurisdictions;

(iii) one advocate of fifteen years standing; and

(iv) two other persons with experience in public affairs; or

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 (b) in the case of a judge other than the Chief Justice, appoint a tribunal
consisting of—

(i) a chairperson and three other members from among

persons who hold or have held office as a judge of a
superior court, or who are qualified to be appointed as
such but who, in either case, have not been members of
the Judicial Service Commission at any time within the
preceding three years;

(ii) one advocate of fifteen years standing; and

(iii) two other persons with experience in public affairs.

(6) Despite Article 160 (4), the remuneration and benefits payable to a judge
who is suspended from office under clause (5) shall be adjusted to one half
until such time as the judge is removed from, or reinstated in, office.

(7) A tribunal appointed under clause (5) shall—

(a) be responsible for the regulation of its proceedings, subject to any

legislation contemplated in clause (10); and

(b) inquire into the matter expeditiously and report on the facts and make
binding recommendations to the President.

(8) A judge who is aggrieved by a decision of the tribunal under this Article
may appeal against the decision to the Supreme Court, within 10 days after Comment [PK9]: There is a lapse here. What
happens if the President has already acted on the
the tribunal makes its recommendations. tribunal’s recommendation ? And does the filing of
such an appeal stay the President’s obligation to so
act ?
(9) The President shall act in accordance with the recommendations made by
It seems that what may be needed to harmonize and
avoid a very nasty squabble within the courts, would
the tribunal on the later of – be a time limit for such an appeal, and an explicit
statement that the President is to act on the later of
(a) expiry of the time allowed for an appeal under clause (8), if no such the expiry of that time limit, or on final resolution of
the appeal, if it results in confirmation of the tribunal
recommendation.
appeal is taken; or Consider the following proposed clauses to resolve
the lapse.
(b) on the completion of all rights of appeal in any proceedings allowed
for under clause (8), if such an appeal is taken and the final order in
the matter affirms the tribunal’s recommendations.

(10) Parliament shall enact legislation providing for the procedure of a tribunal
appointed under this Article.

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 Part 3—Subordinate courts

Subordinate courts

169. (1) The subordinate courts are—

(a) the Magistrates courts;

(b) the Kadhis’ courts;

(c) the Courts Martial; and

(d) any other court or local tribunal as may be established by an Act of

Parliament, other than the courts established as required by Article
162 (4).

(2) Parliament shall enact legislation conferring jurisdiction, functions and

powers on the courts established under clause (1).

Kadhis’ Courts

170. (1) There shall be a Chief Kadhi and such number, being not fewer than three,
of other Kadhis as may be prescribed under an Act of Parliament.

(2) A person shall not be qualified to be appointed to hold or act in the office of
Kadhi unless the person—

(a) professes the Muslim religion; and

(b) possesses such knowledge of the Muslim law applicable to any sects
of Muslims as qualifies the person, in the opinion of the Judicial
Service Commission, to hold a Kadhi’s court.

(3) Parliament shall establish Kadhis’ courts, each of which shall have the
jurisdiction and powers conferred on it by legislation, subject to clause (4).

(4) The Chief Kadhi and the other Kadhis, or the Chief Kadhi and such of the
other Kadhis (not being fewer than three in number) as may be prescribed
under an Act of Parliament, shall each be empowered to hold a Kadhi’s
court having jurisdiction within Kenya.

(5) The jurisdiction of a Kadhi’s court shall be limited to the determination of

questions of Muslim law relating to personal status, marriage, divorce or
inheritance in proceedings in which all the parties profess the Muslim
religion and submit to the jurisdiction of the Kadhi’s courts.

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 Part 4—Judicial Service Commission

Establishment of the Judicial Service Commission

171. (1) There is established the Judicial Service Commission.

(2) The Commission consists of—

(a) the Chief Justice, who shall be the chairperson of the Commission;

(b) one Supreme Court judge elected by the judges of the Supreme Court;

(c) one Court of Appeal judge elected by the judges of the Court of
Appeal;

(d) one High Court judge and one magistrate, one a woman and one a
man, elected by the members of the association of judges and
magistrates;

(e) the Attorney-General;

(f) two advocates, one a woman and one a man, each of whom has at
least fifteen years’ experience, elected by the members of the
statutory body responsible for the professional regulation of
advocates;

(g) one person nominated by the Public Service Commission; and

(h) one woman and one man to represent the public, not being lawyers,
appointed by the President with the approval of the National
Assembly.

(3) The Chief Registrar of the Judiciary shall be the Secretary to the
Commission.

(4) Members of the Commission, apart from the Chief Justice and the
Attorney-General, shall hold office, provided that they remain qualified, for
a term of five years and shall be eligible to be nominated for one further
term of five years.

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Functions of the Judicial Service Commission

172. (1) The Judicial Service Commission shall promote and facilitate the
independence and accountability of the judiciary and the efficient, effective
and transparent administration of justice and shall—

(a) recommend to the President persons for appointment as judges;

(b) review and make recommendations on the conditions of service of—

(i) judges and judicial officers, other than their remuneration;

and

(ii) the staff of the judiciary;

(c) appoint, receive complaints against, investigate and remove from

office or otherwise discipline registrars, magistrates, other judicial
officers and other staff of the judiciary, in the manner prescribed by
an Act of Parliament;

(d) prepare and implement programmes for the continuing education and
training of judges and judicial officers;

(e) advise the national government on improving the efficiency of the

administration of justice.

(2) In the performance of its functions, the Commission shall be guided by the
following—

(a) competitiveness and transparent processes of appointment of judicial

officers and other staff of the judiciary; and

(b) promotion of gender equality.

Judiciary Fund

173. (1) There is established a fund to be known as the Judiciary Fund which shall
be administered by the Chief Registrar of the judiciary.

(2) The Fund shall be used for administrative expenses of the judiciary and
such other purposes as may be necessary for the discharge of the functions
of the judiciary.

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(3) Each financial year, the Chief Registrar shall prepare estimates of
expenditure for the following year, and submit them to the National
Assembly for approval.

(4) On approval by the National Assembly, the expenses of the Judiciary shall
be a charge on the Consolidated Fund and the funds shall be paid directly
into the Judicary Fund.

(5) Parliament shall enact legislation to provide for the regulation of the Fund. Comment [PK10]: Christina to revise in
harmony with Finance Chapter.

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 CHAPTER ELEVEN

DEVOLVED GOVERNMENT

Part 1—Objects and principles of devolved government

Objects of devolution

174. The objects of the devolution of government are—

(a) to promote democratic and accountable exercise of power;

(b) to foster national unity by recognising diversity;

(c) to give powers of self-governance to the people and enhance the

participation of the people in the exercise of the powers of the State
and in making decisions affecting them;

(d) to recognise the right of communities to manage their own affairs and
to further their development;

(e) to protect and promote the interests and rights of minorities and
marginalised communities;

(f) to promote social and economic development and the provision of

proximate, easily accessible services throughout Kenya;

(g) to ensure equitable sharing of national and local resources throughout

Kenya;

(h) to facilitate the decentralisation of State organs, their functions and

services, from the capital of Kenya; and

(i) to enhance checks and balances and the separation of powers.

Principles of devolved government

175. County governments established under this Constitution shall reflect the
following principles––

(a) county governments shall be based on democratic principles and the

separation of powers;

(b) county governments shall have reliable sources of revenue to enable

them to govern and deliver services effectively; and

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 (c) no more than two-thirds of the members of representative bodies in
each county government shall be of the same gender.

Part 2—County governments

County governments

176. (1) There shall be a county government for each county, consisting of a county
assembly and a county executive.

(2) Every county government shall decentralise its functions and the provision
of its services to the extent that it is efficient and practicable to do so.

Membership of county assembly

177. (1) A county assembly consists of—

(a) members elected by the registered voters of the wards, each ward
constituting a single member constituency on the same day as a
general election of Members of Parliament, being the second Tuesday
in August, in every fifth year;

(b) the number of special seat members necessary to ensure that no more
than two-thirds of the membership of the assembly are of the same
gender;

(c) the number of members of marginalised groups, including persons

with disabilities and the youth, prescribed by an Act of Parliament;
and

(d) the Speaker, who is an ex officio member.

(2) The members contemplated in clause (1) (b) and (c) shall in each case be
nominated by political parties in proportion to the seats received in that
election in that county by each political party under paragraph (a) in
accordance with Article 90.

(3) The filling of special seats under clause (1) (b) shall be determined after
declaration of elected members from each ward.

(4) A county assembly is elected for a term of five years.

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Speaker of a county assembly

178. (1) Each county assembly shall have a speaker elected by the county assembly
from among persons who are not members of the assembly.

(2) A sitting of the county assembly shall be presided over by––

(a) the speaker of the assembly; or

(b) in the absence of the speaker, another member of the assembly elected
by the assembly.

(3) Parliament shall enact legislation providing for the election and removal
from office of speakers of the county assemblies.

County executive committees

179. (1) The executive authority of the county is vested in, and exercised, by a
county executive committee.

(2) The county executive committee consists of—

(a) the county governor and the deputy county governor; and

(b) members appointed by the county governor, with the approval of the
assembly, from among persons who are not members of the assembly.

(3) The number of members appointed under clause (2) (b) shall not exceed—

(a) one-third of the number of members of the county assembly, if the

assembly has less than thirty members; or

(b) ten, if the assembly has thirty or more members.

(4) The county governor and the deputy county governor are the chief
executive and deputy chief executive of the county respectively.

(5) When the county governor is absent, the deputy county governor shall act
as the county governor.

(6) Members of a county executive committee are accountable to the county

governor for the performance of their functions and exercise of their
powers.

(7) If a vacancy arises in the office of the county governor, the members of the
county executive committee appointed under clause (2) (b) cease to hold
office.
119
Election of county governor and deputy county governor

180. (1) The county governor shall be directly elected by the voters registered in the
county, on the same day as a general election of Members of Parliament,
being the second Tuesday in August, in every fifth year.

(2) To be eligible for election as county governor, a person must be eligible for
election as a member of the county assembly.

(3) If only one candidate for county governor is nominated, that candidate shall
be declared elected.

(4) If two or more candidates are nominated, an election shall be held in the
county and the candidate who receives the greatest number of votes shall be
declared elected.

(5) Each candidate for election as county governor shall nominate a person who
is qualified for nomination for election as county governor as a candidate
for deputy governor.

(6) The Independent Electoral and Boundaries Commission shall not conduct a
separate election for the deputy governor but shall declare the candidate
nominated by the person who is elected county governor to have been
elected as the deputy governor.

(7) A person shall not hold office––

(a) as a county governor for more than two terms; or

(b) as a deputy county governor for more than two terms.

(8) For the purposes of clause (7), a person who has assumed the office of
county governor shall be deemed to have served a full term, subject only to
Article 182 (3) (b).

Removal of a county governor

181. (1) A county governor may be removed from office on any of the following
grounds––

(a) gross violation of this Constitution or any other law;

(b) there are serious reasons for believing that the county governor has
committed a crime under national or international law;

120
 (c) abuse of office or gross misconduct; or

(d) physical or mental incapacity to perform the functions of office of

county governor.

(2) Parliament shall enact legislation providing for the procedure of

removal of a county governor on any of the grounds mentioned in clause (1).

Vacancy in the office of county governor

182. (1) The office of the county governor shall become vacant if the holder of the
office—

(a) dies;

(b) resigns in writing addressed to the speaker of the county assembly;

(c) ceases to be eligible, under Article 180 (2), to be elected county

governor;

(d) is convicted of an offence punishable by imprisonment for at least

twelve months; or

(e) is removed from office under this Constitution.

(2) If a vacancy occurs in the office of county governor, the deputy county
governor shall assume office as county governor for the remainder of the
term of the county governor.

(3) If a person assumes office as county governor under clause (2) the person
shall be deemed for the purposes of Article 180 (7)—

(a) to have served a full term as county governor if, at the date on which
the person assumed office, more than two and a half years remain
before the date of the next regularly scheduled election under Article
180 (1); or

(b) not to have served a term of office as county governor, in any other
case.

(4) If a vacancy occurs in the office of county governor and that of deputy
county governor or if the deputy county governor is unable to act, the
speaker of the county assembly shall act as county governor.

121
 (5) If a vacancy occurs in the circumstances contemplated by clause (4), an
election to the office of county governor shall be held within sixty days
after the speaker assumes the office of county governor.

(6) A person who assumes the office of county governor under this Article
shall, unless otherwise removed from office under this Constitution, hold
office until the newly elected county governor assumes office following the
next election held under Article 180 (1).

Functions of county executive committees

183. (1) A county executive committee shall—

(a) implement county legislation;

(b) implement, within the county, national legislation to the extent that
the legislation so requires;

(c) manage and coordinate the functions of the county administration and
its departments; and

(d) perform any other functions conferred on it by this Constitution or

national legislation.

(2) A county executive committee may prepare proposed legislation for

consideration by the county assembly.

(3) The county executive committee shall provide the county assembly with
full and regular reports on matters relating to the county.

Urban areas and cities

184. (1) National legislation shall provide for the governance and management of
urban areas and cities and shall, in particular—

(a) establish criteria for classifying areas as urban areas and cities,

(b) establish the principles of governance and management of urban areas

and cities; and

(c) provide for participation by residents in the governance of urban areas

and cities.

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 (2) National legislation contemplated in clause (1) may include mechanisms for
identifying different categories of urban areas and cities, and for their
government.

Legislative authority of county assemblies

185. (1) The legislative authority of a county is vested in, and exercised by, its
county assembly.

(2) A county assembly may make any laws that are necessary for, or incidental
to, the effective performance of the functions and exercise of the powers of
the county government under the Fourth Schedule.

(3) A county assembly, while respecting the principle of the separation of

powers, may exercise oversight over the county executive committee and
any other county executive organs.

(4) A county assembly may receive and approve plans and policies for—

(a) the management and exploitation of the county’s resources; and

(b) the development and management of its infrastructure and

institutions.

Part 3—Functions and powers of county governments

Respective functions and powers of national and county governments

186. (1) Except as otherwise provided by this Constitution, the functions and powers
of the national government and the county governments, respectively, are as
mentioned in the Fourth Schedule.

(2) A function or power that is conferred on more than one level of government
is a function or power within the concurrent jurisdiction of each of those
levels of government.

(3) A function or power not assigned by this Constitution or national legislation

to a county is a national government function or power.

(4) For greater certainty, Parliament may legislate for the Republic on any
matter.

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Transfer of functions and powers between levels of government

187. (1) A function or power of government at one level may be transferred to a

government at another level by agreement between the governments if—

(a) the function or power would be more effectively performed or

exercised by the receiving government; and

(b) the transfer of the function or power is not prohibited by the

legislation under which it is to be performed or exercised.

(2) If a function or power is transferred from a government at one level to a

government at the other level—

(a) arrangements shall be put in place to ensure that the resources

necessary for the performance of the function or exercise of the power
are transferred; and

(b) constitutional responsibility for the performance of the function or

exercise of the power shall remain with the government to which it is
assigned by the Fourth Schedule.

Part 4—The boundaries of counties

Boundaries of counties

188. The boundaries of a county may be altered only by a resolution––

(a) recommended by an independent commission set up for that purpose

by Parliament; and

(b) passed by––

(i) the National Assembly with the support of at least two-

thirds of all of the members of the Assembly; and

(ii) the Senate with the support of at least two-thirds of all of

the county delegations.

(2) The boundaries of a county may be altered to take into account—

(a) population density and demographic trends;

(b) physical and human infrastructure;

(c) historical and cultural ties;

124
 (d) the cost of administration;

(e) the views of the communities affected;

(f) the objects of devolution of government; and

(g) geographical features.

Part 5—Relationships between governments

Cooperation between national and county governments

189. (1) Government at either level shall—

(a) perform its functions, and exercise its powers, in a manner that
respects the functional and institutional integrity of government at the
other level, and respects the constitutional status and institutions of
government at the other level and, in the case of county government,
within the county level;

(b) assist, support and consult and, as appropriate, implement the

legislation of the other level of government; and

(c) liaise with government at the other level for the purpose of
exchanging information, coordinating policies and administration and
enhancing capacity.

(2) Government at each level, and different governments at the county level,
shall co-operate in the performance of functions and exercise of powers
and, for that purpose, may set up joint committees and joint authorities.

(3) In any dispute between governments, the governments shall make every
reasonable effort to settle the dispute, including by means of procedures
provided under national legislation.

(4) National legislation shall provide procedures for settling inter-governmental

disputes by alternative dispute resolution mechanisms, including
negotiation, mediation and arbitration.

Support for county governments

190. (1) Parliament shall by legislation ensure that county governments have
adequate support to enable them to perform their functions.

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 (2) County governments shall operate financial management systems that
comply with any requirements prescribed by national legislation.

(3) Parliament shall by legislation provide for intervention by the national

government if a county government—

(a) is unable to perform its functions; or

(b) does not operate a financial management system that complies with
the requirements prescribed by national legislation.

(4) Legislation contemplated in clause (3) may, in particular, authorise the

national government—

(a) to take appropriate steps to ensure that the county government’s

functions are performed and that it operates a financial management
system that complies with the prescribed requirements; and

(b) if necessary, to assume responsibility for the relevant functions.

(5) The legislation contemplated in clause (3) shall –

(a) require notice to be given to a county government of any measures

that the national government intends to take;

(b) permit the national government to take only measures that are
necessary;

(c) require the national government, when it intervenes, to take measures

that will assist the county government to resume full responsibility for
its functions; and

(d) provide for a process by which the Senate may bring the intervention
to an end.

Conflict of laws

191. (1) This Article applies to conflicts between national and county legislation in
respect of matters falling within the concurrent jurisdiction of both levels of
government.

(2) National legislation prevails over county legislation if—

(a) the national legislation applies uniformly throughout Kenya and any
of the conditions mentioned in clause (3) is satisfied; or

126
 (b) the national legislation is aimed at preventing unreasonable action by
a county that—

(i) is prejudicial to the economic, health or security interests

of Kenya or another county; or

(ii) impedes the implementation of national economic policy.

(3) The following are the conditions contemplated in clause (2) (a)––

(a) the national legislation deals with a matter that cannot be regulated
effectively by legislation enacted by the individual counties;

(b) the national legislation deals with a matter that, to be dealt with
effectively, requires uniformity across the nation, and the national
legislation provides that uniformity by establishing—

(i) norms and standards; or

(ii) national policies; or

(c) the national legislation is necessary for—

(i) the maintenance of national security;

(ii) the maintenance of economic unity;

(iii) the protection of the common market in respect of the

mobility of goods, services, capital and labour;

(iv) the promotion of economic activities across county

boundaries;

(v) the promotion of equal opportunity or equal access to

government services; or

(vi) the protection of the environment.

(4) County legislation prevails over national legislation if neither of the

circumstances contemplated in clause (2) apply.

(5) In considering an apparent conflict between legislation of different levels of

government, a court shall prefer a reasonable interpretation of the
legislation that avoids a conflict to an alternative interpretation that results
in conflict.

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 (6) A decision by a court that a provision of legislation of one level of
government prevails over a provision of legislation of another level of
government does not invalidate the other provision, but the other provision
is inoperative to the extent of the inconsistency.

Part 6—Suspension and dissolution of county governments

Suspension of a county government

192. (1) The President may suspend a county government—

(a) in an emergency arising out of internal conflict or war; or

(b) in any other exceptional circumstances.

(2) A county government shall not be suspended under clause (1) (b) unless an
independent commission of inquiry has investigated allegations against the
county government, the President is satisfied that the allegations are
justified and the Senate has authorised the suspension.

(3) During a suspension under this Article, arrangements shall be made for the
performance of the functions of a county government in accordance with an
Act of Parliament.

(4) The Senate may at any time terminate the suspension.

(5) A suspension under this Article shall not extend beyond a period of ninety
days.

(6) On the expiry of the period provided for under clause (5), elections for the
relevant county government shall be held.

Part 7—General

Qualifications for election as member of county assembly

193. (1) Unless disqualified under clause (2), a person is eligible for election as a
member of a county assembly if the person—

(a) is registered as a voter;

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 (b) satisfies any educational, moral and ethical requirements prescribed
by this Constitution or an Act of Parliament; and

(c) is either—

(i) nominated by a political party; or

(ii) an independent candidate supported by at least five

hundred registered voters in the ward concerned.

(2) A person is disqualified from being elected a member of a county assembly

if the person—

(a) is a State officer or other public officer, other than a member of the
county assembly;

(b) has, at any time within the five years immediately before the date of
election, held office as a member of the Independent Electoral and
Boundaries Commission;

(c) has not been a citizen of Kenya for at least ten years immediately
before the date of election;

(d) is of unsound mind;

(e) is an undischarged bankrupt;

(f) is serving a sentence of imprisonment of at least six months; or

(g) has been found in accordance with any law to have misused or abused
a State office or public office or to have contravened Chapter Seven.

(3) A person is not disqualified under clause (2) unless all possibility of appeal
or review of the relevant sentence or decision has been exhausted.

Vacation of office of member of county assembly

194. (1) The office of a member of a county assembly becomes vacant—

(a) if the member dies;

(b) if the member is absent from eight sittings of the assembly without
permission, in writing, of the speaker of the assembly, and is unable
to offer satisfactory explanation for the absence;

(c) if the member is removed from office under this Constitution or

legislation enacted under Article 80;
129
 (d) if the member resigns in writing addressed to the speaker the
assembly;

(e) if, having been elected to the assembly––

(i) as a member of a political party, the member resigns from

the party, or is deemed to have resigned from the party as
determined in accordance with the legislation
contemplated in clause (2); or

(ii) as an independent candidate, the member joins a political

party.

(f) at the end of the term of the assembly; or

(g) if the member becomes disqualified for election on grounds

mentioned under Article 193 (2).

(2) Parliament shall enact legislation providing for the circumstances under
which a member of a political party shall be deemed, for the purposes of
clause (1) (e), to have resigned from the party.

County assembly power to summon witnesses

195. (1) A county assembly or any of its committees has power to summon any
person to appear before it for the purpose of giving evidence or providing
information.

(2) For the purposes of clause (1), an assembly has the same powers as the
High Court to—

(a) enforce the attendance of witnesses and examining them on oath,

affirmation or otherwise;

(b) compel the production of documents; and

(c) issue a commission or request to examine witnesses abroad.

Public participation and county assembly powers, privileges and immunities

196. (1) A county assembly shall—

(a) conduct its business in an open manner, and hold its sittings and those
of its committees, in public; and

130
 (b) facilitate public participation and involvement in the legislative and
other business of the assembly and its committees.

(2) A county assembly may not exclude the public, or any media, from any
sitting unless in exceptional circumstances the speaker has determined that
there are justifiable reasons for doing so.

(3) Parliament shall enact legislation providing for the powers, privileges and
immunities of county assemblies, their committees and members.

County assembly gender balance and diversity

197. (1) Not more than two-thirds of the members of any county assembly or county
executive committee shall be of the same gender.

(2) Parliament shall enact legislation to—

(a) ensure that the community and cultural diversity of a county is

reflected in its county assembly and county executive committee; and

(b) prescribe mechanisms to protect minorities within counties.

County government during transition

198. While an election is being held to constitute a county assembly under this
Chapter, the executive committee of the county, as last constituted remains
competent to perform administrative functions until a new executive
committee is constituted after the election.

Publication of county legislation

199. (1) County legislation does not take effect unless published in the Gazette.

(2) National and county legislation may prescribe additional requirements in

respect of the publication of county legislation.

Legislation on Chapter

200. (1) Parliament shall enact legislation providing for all matters necessary or
convenient to give effect to this Chapter.

(2) In particular, provision may be made with respect to––

(a) the governance of the capital city, other cities and urban areas;

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(b) the transfer of functions and powers by one level of government to
another, including the transfer of legislative powers from the national
government to county governments;

(c) the manner of election or appointment of persons to, and their

removal from, offices in county governments, including the
qualifications of voters and candidates;

(d) the procedure of assemblies and executive committees including the

chairing and frequency of meetings, quorums and voting; and

(e) the suspension of assemblies and executive committees.

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 CHAPTER TWELVE

PUBLIC FINANCE

Part I—Principles and framework of public finance

Principles of public finance

201. The following principles shall guide all aspects of public finance in the
Republic—

(a) there shall be openness and accountability, including public

participation in financial matters;

(b) the public finance system shall promote an equitable society, and in
particular—

(i) the burden of taxation shall be shared fairly;

(ii) revenue raised nationally shall be shared equitably among

national and county governments;

(iii) expenditure shall promote the equitable development of

the country, including by making special provision for
marginalised groups and areas; and

(c) the burdens and benefits of the use of resources and public borrowing
shall be shared equitably between present and future generations;

(d) public money shall be used in a prudent and responsible way; and

(e) financial management shall be responsible, and fiscal reporting shall

be clear.

Equitable sharing of national revenue

202. (1) Revenue raised nationally shall be shared equitably among the national and
county governments.

(2) County governments may be given additional allocations from the national
government’s share of the revenue, either conditionally or unconditionally.

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Equitable share and other financial laws

203. (1) The following criteria shall be taken into account in determining the
equitable shares mentioned in Article 202 and in all national legislation
concerning county government enacted in terms of this Chapter—

(a) the national interest;

(b) any provision that must be made in respect of the public debt and
other national obligations;

(c) the needs of the national government, determined by objective

criteria;

(d) the need to ensure that county governments are able to perform the
functions allocated to them;

(e) the fiscal capacity and efficiency of county governments;

(f) developmental and other needs of counties;

(g) economic disparities within and among counties and the need to
remedy them;

(h) the need for affirmative action in respect of disadvantaged areas and
groups;

(i) the need for economic optimisation of each county and to provide
incentives for each county to optimise its capacity to raise revenue;

(j) the desirability of stable and predictable allocations of revenue; and

(k) the need for flexibility in responding to emergencies and other

temporary needs, based on similar objective criteria.

(2) For every financial year, the equitable share of the revenue raised nationally
that is allocated to county governments shall be not less than fifteen per
cent of all revenue collected by the national government.

(3) The amount mentioned in clause (2) shall be calculated on the basis of the
most recent audited accounts of revenue received, as approved by the
National Assembly.

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Equalisation Fund

204. (1) There is established an Equalisation Fund into which shall be paid one half
per cent of all the revenue collected by the national government each year
calculated on the basis of the most recent audited accounts of revenue
received, as approved by the National Assembly.

(2) The national government shall use the Equalisation Fund only to provide
basic services including water, roads, health facilities, electricity to
marginalised areas to the extent necessary to bring the quality of those
services in those areas to the level generally enjoyed by the rest of the
nation, so far as possible.

(3) The national government may use the Equalisation Fund––

(a) only to the extent that the expenditure of those funds has been
approved in an Appropriation Bill enacted by Parliament; and

(b) either directly or indirectly through conditional grants to counties in

which marginalised communities exist.

(4) The Commission on Revenue Allocation shall be consulted and its

recommendations considered before Parliament passes any Bill
appropriating money out of the Equalisation Fund.

(5) Any unexpended money in the Equalisation Fund at the end of a particular
financial year shall remain in that Fund for use in accordance with clauses
(2) and (3) during any subsequent financial year.

(6) This Article lapses twenty years after the effective date, subject to clause
(7).

(7) Parliament may enact legislation suspending the effect of clause (6) for a
further fixed period of years, subject to clause (8).

(8) Legislation under clause (7) shall be supported by more than half of all the
members of the National Assembly, and more than half of all the county
delegations in the Senate.

(9) Money shall not be withdrawn from the Equalisation Fund unless the
Controller of Budget has approved the withdrawal.

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Consultation on financial legislation affecting counties

205. (1) When a Bill that includes provisions dealing with the sharing of revenue, or
any financial matter concerning county governments is published, the
Commission on Revenue Allocation shall consider those provisions and
may make recommendations to the National Assembly and the Senate.

(2) Any recommendations made by the Commission shall be tabled in

Parliament, and each House shall consider the recommendations before
voting on the Bill.

Part 2—Other public funds

Consolidated Fund and other public funds

206. (1) There is established the Consolidated Fund into which shall be paid all
money raised or received by or on behalf of the national government,
except money that—

(a) is reasonably excluded from the Fund by an Act of Parliament and

payable into another public fund established for a specific purpose; or

(b) may, under an Act of Parliament, be retained by the State organ that
received it for the purpose of defraying the expenses of the State
organ.

(2) Money may be withdrawn from the Consolidated Fund only—

(a) in accordance with an appropriation by Act of Parliament;

(b) in accordance with Article 222 or 223; or

(c) as a charge against the Fund as authorised by this Constitution or an

Act of Parliament.

(3) Money shall not be withdrawn from any national public fund other than the
Consolidated Fund, unless the withdrawal of the money has been authorised
by an Act of Parliament.

(4) Money shall not be withdrawn from the Consolidated Fund unless the
Controller of Budget has approved the withdrawal.

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Revenue Funds for county governments

207. (1) There shall be established a Revenue Fund for each county government,
into which shall be paid all money raised or received by or on behalf of the
county government, except money reasonably excluded by an Act of
Parliament.

(2) Money may be withdrawn from the Revenue Fund of a county government
only—

(a) as a charge against the Revenue Fund that is provided for by an Act of
Parliament or by legislation of the county; or

(b) as authorised by an appropriation by legislation of the county.

(3) Money shall not be withdrawn from a Revenue Fund unless the Controller
of Budget has approved the withdrawal.

(4) An Act of Parliament may—

(a) make further provision for the withdrawal of funds from a county
Revenue Fund; and

(b) provide for the establishment of other funds by counties and the
management of those funds.

Contingencies Fund

208. (1) There is established a Contingencies Fund, the operation of which shall be
in accordance with an Act of Parliament.

(2) An Act of Parliament shall provide for advances from the Contingencies
Fund if the Cabinet Secretary responsible for finance is satisfied that there
is an urgent and unforeseen need for expenditure for which there is no other
authority.

Part 3—Revenue-raising powers and the public debt

Power to impose taxes and charges

209. (1) Only the national government may impose —

(a) income tax;

(b) value-added tax;

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 (c) customs duties and other duties on import and export goods; and

(d) excise tax.

(2) An Act of Parliament may authorise the national government to impose any
other tax or duty, except a tax mentioned in clause (3) (a) or (b).

(3) A county may impose—

(a) property rates;

(b) entertainment taxes; and

(c) any other tax that it is authorised to impose by an Act of Parliament.

(4) The national and county governments may impose charges for services.

(5) The taxation and other revenue-raising powers of a county shall not be
exercised in a way that prejudices national economic policies, economic
activities across county boundaries or the national mobility of goods,
services, capital or labour.

Imposition of tax

210. (1) No tax or licensing fee may be imposed, waived or varied except as
provided by legislation.

(2) If legislation permits the waiver of any tax or licensing fee—

(a) a public record of each waiver shall be maintained with the reason for
the waiver; and

(b) each waiver, with the reason for it, shall be reported to the Auditor-
General.

(3) No law may exclude or authorise the exclusion of a State officer from
payment of tax by reason of—

(a) the office held by that State officer; or

(b) the nature of the work of the State officer.

Borrowing by national government

211. (1) Parliament, by legislation, may—

(a) prescribe the terms on which the national government may borrow;
and
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 (b) impose reporting requirements.

(2) Within seven days after either House of Parliament so requests by

resolution, the Cabinet Secretary responsible for finance shall present to the
relevant committee information concerning any particular loan or
guarantee, including all information necessary to show—

(a) the extent of the total indebtedness by way of principal and

accumulated interest;

(b) the use made or to be made of the proceeds of the loan;

(c) the provision made for servicing or repayment of the loan; and

(d) the progress made in the repayment of the loan.

Borrowing by counties

212. A county government may borrow only—

(a) if the national government guarantees the loan; and

(b) with the approval of the county government’s assembly.

Loan guarantees by national government

213. (1) An Act of Parliament shall prescribe terms and conditions under which the
national government may guarantee loans.

(2) Within two months after the end of each financial year, the national
government shall publish a report on the guarantees that it gave during that
year.

Public debt

214. (1) The public debt is a charge on the Consolidated Fund, but an Act of
Parliament may provide for charging all or part of the public debt to other
public funds.

(2) For the purposes of this Article, “the public debt” means all financial
obligations attendant to loans raised or guaranteed and securities issued or
guaranteed by the national government.

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 Part 4—Revenue allocation

Commission on Revenue Allocation

215. (1) There is established the Commission on Revenue Allocation.

(2) The Commission shall consist of the following persons appointed by the
President—

(a) a chairperson, who shall be nominated by the President and approved

by the National Assembly;

(b) two persons nominated by the political parties represented in the

National Assembly according to their proportion of members in the
Assembly;

(c) five persons nominated by the political parties represented in the

Senate according to their proportion of members in the Senate; and

(d) the Principal Secretary in the Ministry responsible for finance.

(3) The persons nominated under clause (2) shall not be members of
Parliament.

(4) To be qualified to be a member of the Commission under clause (2) (a), (b)
or (c), a person shall have extensive professional experience in financial
and economic matters.

Functions of the Commission on Revenue Allocation

216. (1) The principal function of the Commission on Revenue Allocation is to

make recommendations concerning the basis for the equitable sharing of
revenue raised by the national government––

(a) between the national and county governments; and

(b) among the county governments.

(2) The Commission shall also make recommendations on other matters

concerning the financing of, and financial management by, county
governments, as required by this Constitution and national legislation.

(3) In formulating recommendations, the Commission shall seek––

(a) to promote and give effect to the criteria mentioned in Article 203 (1);
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 (b) when appropriate, to define and enhance the revenue sources of the
national and county governments; and

(c) to encourage fiscal responsibility.

(4) The comission shall determine, publish and regularly review a policy in
which it sets out the criteria by which to identify the marginalised areas for
purposes of Article 204 (2).

(5) The Commission shall submit its recommendations to the Senate, the
National Assembly, the national executive, county assemblies and county
executives.

Division of revenue

217. (1) Once every five years, the Senate, by resolution, shall determine the basis
for allocating among the counties the share of national revenue that is
annually allocated to the county level of government.

(2) In determining the basis of revenue sharing under clause (1), the Senate
shall—

(a) take the criteria in Article 203 (1) into account;

(b) request and consider recommendations from the Commission on

Revenue Allocation;

(c) consult the county governors, the Cabinet Secretary responsible for
finance and any organisation of county governments; and

(d) invite the public, including professional bodies, to make submissions.

(3) Within ten days after the Senate adopts a resolution under clause (1), the
Speaker of the Senate shall refer the resolution to the Speaker of the
National Assembly.

(4) Within sixty days after the Senate’s resolution is referred under clause (3),
the National Assembly may consider the resolution, and vote to approve it,
with or without amendments, or to reject it.

(5) If the National Assembly––

(a) does not vote on the resolution within sixty days, the resolution will
be regarded as having been approved by the National Assembly
without amendment;
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 (b) votes on the resolution, the resolution will have been––

(i) amended only if at least two-thirds of the members of the

Assembly vote in support of an amendment;

(ii) rejected only if at least two-thirds of the members of the

Assembly vote against it, irrespective whether it has first
been amended by the Assembly; or

(iii) approved, in any other case.

(6) If the National Assembly approves an amended version of the resolution, or

rejects the resolution, the Senate, at its option, may either –

(a) adopt a new resolution under clause (1), in which case the provisions
of this clause and clause (4) and (5) apply afresh; or

(b) request that the matter be referred to a joint committee of the two
Houses of Parliament for mediation under Article 113, applied with
the necessary modifications.

(7) A resolution under this Article that has been approved under clause (5) is
binding until a subsequent resolution has been approved.

(8) Despite clause (1), the Senate, by resolution supported by at least two-thirds
of its members, may amend a resolution at any time after it has been
approved.

(9) Clauses (2) to (8), with the necessary modifications, apply to a resolution
under clause (8).

Annual Division and Allocation of Revenue Bills

218. (1) At least two months before the end of each financial year, there shall be
introduced in Parliament––

(a) a Division of Revenue Bill, which shall divide revenue raised by the
national government among the national and county levels of
government in accordance with this Constitution; and

(b) a County Allocation of Revenue Bill, which shall divide among the
counties the revenue allocated to the county level of government on
the basis determined in accordance with the resolution in force under
Article 217.
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 (2) Each Bill required by clause (2) shall be accompanied by a memorandum
setting out––

(a) an explanation of revenue allocation as proposed by the Bill;

(b) an evaluation of the Bill in relation to the criteria mentioned in Article

203 (1); and

(c) a summary of any significant deviation from the Commission’s

recommendations, with an explanation for each such deviation.

Transfer of equitable share

219. A county’s share of revenue raised by the national government shall be

transferred to the county without undue delay and without deduction, except
when the transfer has been stopped under Article 225.

Part 5—Budgets and spending

Form, content and timing of budgets

220. (1) Budgets of the national and county governments shall contain—

(a) estimates of revenue and expenditure, differentiating between

recurrent and development expenditure;

(b) proposals for financing any anticipated deficit for the period to which
they apply; and

(c) proposals regarding borrowing and other forms of public liability that
will increase public debt during the following year.

(2) National legislation shall prescribe—

(a) the structure of the development plans and budgets of counties;

(b) when the plans and budgets of the counties shall be tabled in the
county assemblies; and

(c) the form and manner of consultation between the national government
and county governments in the process of preparing plans and
budgets.

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Budget estimates and annual Appropriation Bill

221. (1) At least two months before the end of each financial year, the Cabinet
Secretary responsible for finance shall submit to the National Assembly
estimates of the revenue and expenditure of the national government for the
next financial year to be tabled in the National Assembly.

(2) The estimates mentioned in clause (1) shall––

(a) include estimates for expenditure from the Equalisation Fund; and

(b) be in the form, and according to the procedure, prescribed by an Act

of Parliament.

(3) The National Assembly shall consider the estimates submitted under clause
(1) together with the estimates submitted by the Parliamentary Service
Commission and the Chief Registrar of the Judiciary under Articles 127 and
173 respectively.

(4) Before the National Assembly considers the estimates of revenue and
expenditure, a committee of the Assembly shall discuss and review the
estimates and make recommendations to the Assembly.

(5) In discussing and reviewing the estimates, the committee shall seek
representations from the public and the recommendations shall be taken
into account when the committee makes its recommendations to the
National Assembly.

(6) When the estimates of national government expenditure, and the estimates
of expenditure for the judiciary and Parliament, have been approved by the
National Assembly, they shall be included in an Appropriation Bill, which
shall be introduced into the National Assembly to authorise the withdrawal
from the Consolidated Fund of the money needed for the expenditure, and
for the appropriation of that money for the purposes mentioned in the Bill.

(7) The Appropriation Bill mentioned in clause (6) shall not include
expenditures that are charged on the Consolidated Fund by this Constitution
or an Act of Parliament.

Expenditure before annual budget is passed

222. (1) If the Appropriation Act for a financial year has not been assented to, or is
not likely to be assented to, by the beginning of that financial year, the
144
 National Assembly may authorise the withdrawal of money from the
Consolidated Fund.

(2) Money withdrawn under clause (1) shall—

(a) be for the purpose of meeting expenditure necessary to carry on the

services of the national government during that year until such time as
the Appropriation Act is assented to;

(b) not exceed in total one-half of the amount included in the estimates of
expenditure for that year that have been tabled in the National
Assembly; and

(c) be included, under separate votes for the several services in respect of
which they were withdrawn, in the Appropriation Act.

Supplementary appropriation

223. (1) Subject to clauses (2) to (4), the national government may spend money that
has not been appropriated if –

(a) the amount appropriated for any purpose under the Appropriation Act
is insufficient or a need has arisen for expenditure for a purpose for
which no amount has been appropriated by that Act; or

(b) money has been withdrawn from the Contingencies Fund.

(2) The approval of Parliament for any spending under this Article shall be
sought within two months after the first withdrawal of the money, subject to
clause (3).

(3) If Parliament is not sitting during the time contemplated in clause (2), or is
sitting but adjourns before the approval has been sought, the approval shall
be sought within two weeks after it next sits.

(4) When the National Assembly has approved spending under clause (2), an
appropriation Bill shall be introduced for the appropriation of the money
spent.

(5) In any particular financial year, the national government may not spend
under this Article more than ten per cent of the sum appropriated by
Parliament for that financial year unless, in special circumstances,
Parliament has approved a higher percentage.

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County appropriation Bills

224. On the basis of the Division of Revenue Bill passed by Parliament under
Article 218, each county government shall prepare and adopt its own annual
budget and appropriation Bill in the form, and according to the procedure,
prescribed in an Act of Parliament.

Part 6—Control of public money

Financial control

225. (1) An Act of Parliament shall provide for the establishment, functions and
responsibilities of the national Treasury.

(2) Parliament shall enact legislation to ensure both expenditure control and
transparency in all governments and establish mechanisms to ensure their
implementation.

(3) Legislation contemplated in clause (2) may authorise the Cabinet Secretary
responsible for finance to stop the transfer of funds to a State organ or any
other public entity—

(a) only for a serious material breach or persistent material breaches of

the measures established under that legislation; and

(b) subject to the requirements of clauses (4) to (7).

(4) A decision to stop the transfer of funds as contemplated in clause (3) may
not stop the transfer of more than fifty per cent of funds due to a county
government.

(5) A decision to stop the transfer of funds as contemplated in clause (3)—

(a) shall not stop the transfer of funds for more than sixty days; and

(b) may be enforced immediately, but will lapse retrospectively unless,

within thirty days after the date of the decision, Parliament approves it
by resolution passed by both Houses.

(6) Parliament may renew a decision to stop the transfer of funds but for no
more than sixty days at a time.

(7) Parliament may not approve or renew a decision to stop the transfer of
funds unless—
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 (a) the Controller of Budget has presented a report on the matter to
Parliament; and

(b) the public entity has been given an opportunity to answer the
allegations against it, and to state its case, before the relevant
parliamentary committee.

Accounts and audit of public entities

226. (1) An Act of Parliament shall provide for—

(a) the keeping of financial records and the auditing of accounts of all
governments and other public entities, and prescribe other measures
for securing efficient and transparent fiscal management; and

(b) the designation of an accounting officer in every public entity at the

national and county level of government.

(2) The accounting officer of a national public entity is accountable to the

National Assembly for its financial management, and the accounting officer
of a county public entity is accountable to the county assembly for its
financial management.

(3) Subject to clause (4), the accounts of all governments and State organs shall
be audited by the Auditor-General.

(4) The accounts of the office of the Auditor-General shall be audited and
reported on by a professionally qualified accountant appointed by the
National Assembly.

(5) If the holder of a public office, including a political office, directs or

approves the use of public funds contrary to law or instructions, the person
is liable for any loss arising from that use and shall make good the loss,
whether the person remains the holder of the office or not.

Procurement of public goods and services

227. (1) When a State organ or any other public entity contracts for goods or
services, it shall do so in accordance with a system that is fair, equitable,
transparent, competitive and cost-effective.

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 (2) An Act of Parliament shall prescribe a framework within which policies
relating to procurement and asset disposal shall be implemented and may
provide for all or any of the following—

(a) categories of preference in the allocation of contracts;

(b) the protection or advancement of persons, categories of persons or

groups previously disadvantaged by unfair competition or
discrimination;

(c) sanctions against contractors that have not performed according to

professionally regulated procedures, contractual agreements or
legislation; and

(d) sanctions against persons who have defaulted on their tax obligations,
or have been guilty of corrupt practices or serious violations of fair
employment laws and practices.

Part 6— Financial officers and institutions

Controller of Budget

228. (1) There shall be a Controller of Budget who shall be nominated by the
President and, with the approval of the National Assembly, be appointed by
the President.

(2) To be qualified to be the Controller, a person shall have extensive

knowledge of public finance or at least ten years experience in auditing a
public finance management.

(3) The Controller holds office, subject to Article 251, for a term of eight years
and shall not be eligible for re-appointment.

(4) The Controller of Budget shall oversee the implementation of the budgets
of the national and county governments by authorising withdrawals from
public funds under Articles 203, 206 and 207.

(5) The Controller shall not approve any withdrawal from a public fund unless
satisfied that the withdrawal is authorised by law.

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 (6) Every four months, the Controller shall submit to each House of Parliament
a report on the implementation of the budgets of the national and county
governments.

Auditor-General

229. (1) There shall be an Auditor-General who shall be nominated by the President
and, with the approval of the National Assembly, be appointed by the
President.

(2) To be qualified to be the Auditor-General, a person shall have extensive

knowledge of public finance or at least ten years experience in auditing or
public finance management.

(3) The Auditor-General holds office, subject to Article 251, for a term of eight
years and shall not be eligible for re-appointment.

(4) Within six months after the end of each financial year, the Auditor-General
shall audit and report, in respect of that financial year, on—

(a) the accounts of the national and county governments;

(b) the accounts of all funds and authorities of the national and county
governments;

(c) the accounts of all courts;

(d) the accounts of every commission and independent office established

by this Constitution;

(e) the accounts of the National Assembly, the Senate and the county
assemblies;

(f) the accounts of political parties funded from public funds;

(g) the public debt; and

(h) the accounts of any other entity that legislation requires the Auditor-
General to audit.

(5) The Auditor-General may audit and report on the accounts of any entity that
is funded from public funds.

(6) An audit report shall confirm whether or not public money has been applied
lawfully and in an effective way.

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 (7) Audit reports shall be submitted to Parliament or the relevant county
assembly.

(8) Within three months after the receiving an audit report, Parliament or the
county assembly shall debate and consider the report and take appropriate
action.

Salaries and Remuneration Commission

230. (1) The Salaries and Remuneration Commission consists of the following
persons appointed by the President—

(a) a chairperson;

(b) persons nominated one each by the following bodies from among
persons who are not members or employees of those bodies—

(i) the Parliamentary Service Commission;

(ii) the Public Service Commission;

(iii) the Judicial Service Commission;

(iv) the Teachers Service Commission;

(v) the National Police Service Commission;

(vi) the Defence Council; and

(vii) the Senate, on behalf of the county governments;

(c) persons nominated one each by—

(viii) an umbrella body representing trade unions;

(ix) an umbrella body representing employers; and

(x) a joint forum of professional bodies as provided by

legislation;

(d) persons nominated one each by—

(xi) the Cabinet Secretary responsible for finance; and

(xii) the Attorney-General; and

(e) a person who has experience in the management of human resources

in the public service, nominated by the Cabinet Secretary responsible
for public service.
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 (2) The Commissioners mentioned in clause (1) (d) and (e) shall have no vote.

(3) The powers and functions of the Salaries and Remuneration Commission
are to —

(a) set and regularly review the remuneration and benefits of all State
officers; and

(b) advise the national and county governments on the remuneration and
benefits of all other public officers.

(4) In performing its functions, the Commission shall take the following
principles into account—

(a) the need to ensure that the total public compensation bill is fiscally
sustainable;

(b) the need to ensure that the public services are able to attract and retain
the skills required to execute their functions;

(c) the need to recognise productivity and performance; and

(d) transparency and fairness.

Central Bank of Kenya

231. (1) There is established the Central Bank of Kenya.

(2) The Central Bank of Kenya is responsible for formulating monetary policy,
promoting price stability, issuing currency and performing other functions
conferred on it by an Act of Parliament.

(3) The Central Bank of Kenya shall not be under the direction or control of
any person or authority in the exercise of its powers or in the performance
of its functions.

(4) Notes and coins issued by the Central Bank of Kenya may bear images that
depict or symbolise Kenya or an aspect of Kenya but may not bear the
portrait of any individual.

(5) An Act of Parliament shall provide for the composition, powers, functions
and operations of the Central Bank of Kenya.

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 CHAPTER THIRTEEN

THE PUBLIC SERVICE

Part 1—Values and principles of public service

Values and principles of public service

232. (1) The values and principles of public service include—

(a) high standards of professional ethics;

(b) efficient, effective and economic use of resources;

(c) responsive, prompt, effective, impartial and equitable provision of

services;

(d) involvement of the people in the process of policy making;

(e) accountability for administrative acts;

(f) transparency and provision to the public of timely, accurate

information;

(g) subject to paragraphs (h) and (i), fair competition and merit as the
basis of appointments and promotions;

(h) representation of Kenya’s diverse communities; and

(i) affording adequate and equal opportunities for appointment, training

and advancement, at all levels of the public service, of––

(i) men and women;

(ii) the members of all ethnic groups; and

(iii) persons with disabilities.

(2) The values and principles of public service apply to public service in—

(a) all State organs in both levels of government; and

(b) all State corporations.

(3) Parliament shall enact legislation to give full effect to this Article.

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 Part 2— The Public Service Commission

The Public Service Commission

233. (1) There is established the Public Service Commission.

(2) The Public Service Commission consists of a chairperson, a vice

chairperson and seven other members appointed by the President with the
approval of the National Assembly.

(3) Subject to clause (5), a person is not eligible for appointment as a member
of the Commission if the person––

(a) has, at any time within the preceding five years, held office, or stood
for election as—

(i) a member of Parliament or of a county assembly; or

(ii) a member of the governing body of a political party; or

(b) holds any State office;

(c) is, or has at any time been, a candidate for election as a member of
Parliament or of a county assembly; or

(d) is, or has at any time been, the holder of an office in any political
organisation that sponsors or otherwise supports, or has at any time
sponsored or otherwise supported, a candidate for election as a
member of the Parliament or of a county assembly

(4) Clause (3) (c) and (d) cease to apply to a person when two general elections
for Parliament have been held since the person ceased to be such a
candidate or office holder.

(5) There shall be a secretary to the Commission.

(6) The secretary––

(a) is the chief executive of the Commission; and

(b) shall be appointed by the Commission for a term of five years, and is
eligible for re-appointment once.

153
Functions and powers of the Public Service Commission

234. (1) The functions and powers of the Commission are as set out in this Article.

(2) The Commission shall—

(a) subject to this Constitution and legislation––

(i) establish and abolish offices in the public service; and

(ii) appoint persons to hold or act in those offices, and to

confirm appointments;

(b) exercise disciplinary control over and remove persons holding or

acting in those offices;

(c) promote the values and principles mentioned in Articles 10 and 232
throughout the public service;

(d) investigate, monitor and evaluate the organisation, administration and

personnel practices of the public service;

(e) ensure that the public service is efficient and effective;

(f) develop human resources in the public service;

(g) review and make recommendations to the national government in

respect of conditions of service, code of conduct and qualifications of
officers in the public service;

(h) evaluate and report to the President and Parliament on the extent to
which the values and principles mentioned in Articles 10 and 232 are
complied with in the public service;

(i) hear and determine appeals in respect of county governments’ public

service; and

(j) perform any other functions and exercise any other powers conferred
by national legislation.

(3) Clauses (1) and (2) shall not apply to any of the following offices in the
public service––

(a) State offices;

(b) an office of high commissioner, ambassador or other diplomatic or

consular representative of the Republic;

154
 (c) an office or position subject to––

(i) the Parliamentary Service Commission;

(ii) the Judicial Service Commission;

(iii) the Teachers Service Commission; or

(iv) the National Police Service Commission;

(d) an office in the service of a county government, except as

contemplated in clause (1) (h).

(4) The commission shall not appoint a person under clause (1) to hold or act in
any office on the personal staff of the President or a retired President,
except with the consent of the President or retired President.

(5) The Commission may delegate, with or without conditions in writing, any
of its functions and powers under this Article to any one or more of its
members, or to any officer, body or authority in the public service.

Staffing of county governments

235. (1) A county government is responsible, within a framework of uniform norms

and standards prescribed by an Act of Parliament for––

(a) establishing and abolishing offices in its public service;

(b) appointing persons to hold or act in those offices, and confirming

appointments; and

(c) exercising disciplinary control over and removing persons holding or

acting in those offices.

(2) Clause (1) shall not apply to any office or position subject to the Teachers
Service Commission.

Protection of public officers

236. A public officer shall not be—

(a) victimised or discriminated against for having performed the

functions of office in accordance with this Constitution or any other
law; or

(b) dismissed, removed from office, demoted in rank or otherwise

subjected to disciplinary action without due process of law.
155
 Part 3—Teachers Service Commission

Teachers Service Commission

237. (1) There is established the Teachers Service Commission.

(2) The functions of the Commission are—

(a) to register trained teachers;

(b) to recruit and employ registered teachers;

(c) to assign teachers employed by the Commission for service in any

public school or institution;

(d) to promote and transfer teachers;

(e) to exercise disciplinary control over teachers; and

(f) to terminate the employment of teachers.

(3) The Commission shall––

(a) review the standards of education and training of persons entering the
teaching service;

(b) review the demand for and the supply of teachers; and

(c) advise the national government on matters relating to the teaching

profession.

156
 CHAPTER FOURTEEN

NATIONAL SECURITY

Part 1—National Security Organs

Principles of national security

238. (1) National security is the protection against internal and external threats to
Kenya’s territorial integrity and sovereignty, its people, their rights,
freedoms, property, peace, stability and prosperity, and other national
interests.

(2) The national security of Kenya shall be promoted and guaranteed in

accordance with the following principles––

(a) national security is subject to the authority of this Constitution and

Parliament;

(b) national security shall be pursued in compliance with the law and
with the utmost respect for the rule of law, democracy, human rights
and fundamental freedoms;

(c) in performing their functions and exercising their powers, national

security organs shall respect the diverse culture of the communities
within Kenya; and Comment [PK11]: My notes are uncertain
whether this was to be restored.

(d) recruitment by the national security organs shall reflect the diversity
of the Kenyan people in equitable proportions.

National security organs

239. (1) The national security organs are—

(a) the Kenya Defence Forces;

(b) the National Intelligence Service; and

(c) the National Police Service.

(2) The primary object of the national security organs and security system is to
promote and guarantee national security in accordance with the principles
mentioned in Article 238 (2).

157
 (3) In performing their functions and exercising their powers, the national
security organs and every member of the national security organs shall
not—

(a) act in a partisan manner;

(b) further any interest of a political party or cause; or

(c) prejudice a political interest or political cause that is legitimate under

this Constitution.

(4) A person shall not establish a military, paramilitary, or similar organisation

that purports to promote and guarantee national security, except as provided
for by this Constitution or an Act of Parliament.

(5) The national security organs are subordinate to civilian authority.

(6) Parliament shall enact legislation to provide for the functions, organisation
and administration of the national security organs.

Establishment of the National Security Council

240. (1) There is established a National Security Council.

(2) The Council consists of—

(a) the President;

(b) the Deputy President;

(c) the Cabinet Secretary responsible for defence;

(d) the Cabinet Secretary responsible for foreign affairs;

(e) the Cabinet Secretary responsible for internal security;

(f) the Attorney-General;

(g) the Chief of Kenya Defence Forces;

(h) the Director-General of the National Intelligence Service; and

(i) the Inspector-General of the National Police Service.

(3) The Council shall exercise supervisory control over national security organs
and perform any other functions prescribed by national legislation.

(4) The President shall preside at meetings of the Council.

(5) The Council shall appoint its secretary.

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 (6) The Council shall—

(a) integrate the domestic, foreign and military policies relating to

national security in order to enable the national security organs to co-
operate and function effectively; and

(b) assess and appraise the objectives, commitments and risks to the
Republic in respect of actual and potential national security
capabilities.

(7) The Council shall report annually to Parliament on the state of the security
of Kenya.

(8) With the approval of Parliament, the Council may—

(a) deploy national forces outside Kenya for—

(i) regional or international peace support operations; or

(ii) other support operations; and

(b) approve the deployment of foreign forces in Kenya.

Part 2—The Kenya Defence Forces

Establishment of Defence Forces and Defence Council

241. (1) There are established the Kenya Defence Forces.

(2) The Defence Forces consist of—

(a) the Kenya Army;

(b) the Kenya Air Force; and

(c) the Kenya Navy.

(3) The Defence Forces—

(a) are responsible for the defence and protection of the sovereignty and
territorial integrity of the Republic;

(b) shall assist and cooperate with other authorities in situations of

emergency or disaster, and report to the National Assembly whenever
deployed in such circumstances; and

159
 (c) may be deployed to restore peace in any part of Kenya affected by
unrest or instability only with the approval of the National Assembly.

(4) The composition of the command of the Defence Forces shall reflect the
regional and ethnic diversity of the people of Kenya.

(5) There is established a Defence Council.

(6) The Council consists of—

(a) the Cabinet Secretary responsible for defence, who is the chairperson;

(b) the Chief of the Kenya Defence Forces;

(c) the three commanders of the defence forces; and

(d) the Principal Secretary in the Ministry responsible for defence.

(7) The Council––

(a) is responsible for the overall policy, control, and supervision of the
Kenya Defence Forces; and

(b) performs any other functions prescribed by national legislation.

Part 3—The National Intelligence Service

Establishment of National Intelligence Service

242. (1) There is established the National Intelligence Service.

(2) The National Intelligence Service––

(a) is responsible for security intelligence and counter intelligence to

enhance national security in accordance with this Constitution; and

(b) performs any other functions prescribed by national legislation.

Part 4—The National Police Service

Establishment of the National Police Service

243. (1) There is established the National Police Service.

(2) The National Police Service consists of—

(a) the Kenya Police Service; and

160
 (b) the Administration Police Service

(3) The National Police Service is a national service and shall function
throughout Kenya.

(4) Parliament shall enact legislation to give full effect to this Article.

Objects and functions of the National Police Service

244. The National Police Service shall—

(a) strive for the highest standards of professionalism and discipline

among its members;

(b) prevent corruption and promote and practice transparency and

accountability;

(c) comply with constitutional standards of human rights and

fundamental freedoms;

(d) train staff to the highest possible standards of competence and

integrity and to respect human rights and fundamental freedoms and
dignity; and

(e) foster and promote relationships with the broader society.

Command of the National Police Service

245. (1) There is established the office of the Inspector-General of the National
Police Service.

(2) The Inspector-General––

(a) is appointed by the President with the approval of Parliament; and

(b) shall exercise independent command over the National Police

Service, and perform any other functions prescribed by national
legislation.

(3) The Kenya Police Service and the Administration Police Service shall each
be headed by a Deputy Inspector-General appointed by the President in
accordance with the recommendation of the National Police Service
Commission.

(4) The Cabinet secretary responsible for police services may lawfully give a
direction to the Inspector-General with respect to any matter of policy for
161
 the Kenya Police Service, but no person may give a direction to the
Inspector-General with respect to—

(a) the investigation of any particular offence or offences;

(b) the enforcement of the law against any particular person or persons;
or

(c) the employment, assignment, promotion, suspension or dismissal of

any member of the Kenya Police Service.

(5) Any direction given to the Inspector-General by the Cabinet secretary

responsible for police services under clause (3), or any direction given to
the Inspector-General by the Director of Public Prosecutions under Article
142 (4), shall be in writing. Comment [PK12]: I am uncertain of the
decisionon the question of tabling these instructions
in Paraliament.
(6) The Inspector-General shall be appointed for a single four-year term, and is
not eligible for re-appointment.

(7) The Inspector-General may be removed from office by the President only
on the grounds of —

(a) serious violation of this Constitution or any other law, including a

contravention of Chapter Seven; and

(b) gross misconduct whether in the performance of the office holder’s

functions or otherwise;

(c) physical or mental incapacity to perform the functions of office;

(d) incompetence;

(e) bankruptcy; or

(f) any other just cause.

(8) Parliament shall enact legislation to give full effect to this Article.

National Police Service Commission

246. (1) There is established the National Police Service Commission.

(2) The Commission consists of—

(a) the following persons, each appointed by the President—

(i) a person who is qualified to be appointed as a High Court

Judge;
162
 (ii) two retired senior police officers; and

(iii) three persons of integrity who have served the public with
distinction;

(b) the Inspector-General of the National Police Service; and

(c) both Deputy Inspectors-General of the National Police Service.

(3) The Commission shall—

(a) recruit and appoint persons to hold or act in offices in the service,
confirm appointments, and determine promotions and transfers within
the National Police Service;

(b) observing due process, exercise disciplinary control over and remove
persons holding or acting in offices within the Service; and

(c) perform any other functions prescribed by national legislation.

(4) The composition of the National Police Service shall reflect the regional
and ethnic diversity of the people of Kenya.

Other police services

247. Parliament may enact legislation establishing other police services under
the supervision of the National Police Service and the command of the
Inspector-General of the Service.

163
 CHAPTER FIFTEEN

COMMISSIONS AND INDEPENDENT OFFICES

Application of Chapter

248. (1) This Chapter applies to the commissions mentioned in clause (2) and the
independent offices mentioned in clause (3), except to the extent that this
Constitution provides otherwise.

(2) The commissions are—

(a) the Kenya National Human Rights and Equality Commission;

(b) the National Land Commission;

(c) the Independent Electoral and Boundaries Commission;

(d) the Parliamentary Service Commission

(e) the Judicial Service Commission;

(f) the Commission on Revenue Allocation;

(g) the Public Service Commission;

(h) the Salaries and Remuneration Commission;

(i) the Teachers Service Commission; and

(j) the National Police Service Commission.

(3) The independent offices are—

(a) the Auditor-General; and

(b) the Controller of Budget.

Objects, authority and funding of commissions and independent offices

249. (1) The objects of the commissions and the independent offices are to—

(a) protect the sovereignty of the people;

(b) secure the observance by all State organs of democratic values and
principles; and

(c) promote constitutionalism.

(2) The commissions and the holders of independent offices—

164
 (a) are subject only to this Constitution and the law; and

(b) are independent and not subject to direction or control by any person
or authority.

(3) Parliament shall allocate adequate funds to enable each commission and
independent office to perform its functions and the budget of each
commission and independent office shall be a separate vote.

Composition, appointment and terms of office

250. (1) Each commission shall consist of at least three, but not more than nine,
members.

(2) The chairperson and each member of a commission, and the holder of an
independent office, shall be—

(a) identified and recommended for appointment in a manner prescribed

by national legislation;

(b) approved by the National Assembly; and

(c) appointed by the President.

(3) To be appointed, a person shall have the specific qualifications required by

this Constitution or national legislation.

(4) Appointments to commissions and independent offices shall take into

account the national values mentioned in Article 10, and the principle that
the composition of the commissions and offices, taken as a whole, shall
reflect the regional and ethnic diversity of the people of Kenya.

(5) A member of a commission may be part-time.

(6) A member of a commission, or the holder of an independent office—

(a) unless ex-officio, shall be appointed for a single term of six years and
is not eligible for re-appointment; and

(b) unless ex-officio or part-time, shall not hold any other office or
employment for profit, whether public or private.

(7) The remuneration and benefits payable to, or in respect of, the members of Comment [PK13]: Consider the relationship of
this clause with Art. 258, once the CoE has
a commission or holder of an independent office shall not be varied to the considerd that clause in light of the PSC proposals

disadvantage of that person during their respective terms of office.

165
 (8) The remuneration and benefits payable to or in respect of a commissioner
or the holder of an independent office shall be a charge on the Consolidated
Fund.

(9) The remuneration and benefits payable to, or in respect of, a commissioner Comment [PK14]: Consider the relationship of
this clause with Art. 258, once the CoE has
or the holder of an indepenedent office shall not be varied to the considerd that clause in light of the PSC proposals

disadvantage of that commissioner or holder of an independent office.

(10) A member of a commission, or the holder of an independent office, is not

liable for anything done in good faith in the performance of a function of
office.

(11) The members of a commission shall elect a vice-chairperson from among

themselves—

(a) at the first sitting of the commission; and

(b) whenever it is necessary to fill a vacancy.

(12) The chairperson and vice-chairperson of a commission shall not be of the Comment [PK15]: There is a conceptual lapse.
Assume the CP is a woman, and the VCP is a man.
same gender. The CP dies or resigns midway through the term.
Now, for the President to appoint a new CP, it must
be another woman, who now has a full term. When,
(13) There shall be a Secretary to each commission who shall be— at the end of the orinhginal term, the VCP leaves, the
next VCP must once again be a man.

(a) appointed by the commission; and The principle is a good one, but the effect of a mid
term vacancy in the office of CP is to fix the gender
status of both offices in perpetuity.
(b) the chief executive officer of the commission.

Removal from office

251. (1) A member of a commission (other than an ex-officio member), or the holder
of an independent office, may be removed from office only for—

(a) serious violation of this Constitution or any other law, including a

contravention of Chapter Seven;

(b) gross misconduct, whether in the performance of the member’s or

office holder’s functions or otherwise;

(c) physical or mental incapacity to perform the functions of office;

(d) incompetence; or

(e) bankruptcy.

(2) A person desiring the removal of a member of a commission or of a holder

of an independent office on any ground mentioned in clause (1) may
166
 present a petition to the National Assembly setting out the alleged facts
constituting that ground.

(3) The National Assembly shall consider the petition and, if it is satisfied that
it discloses a ground under clause (1), shall send the petition to the
President.

(4) On receiving a petition under clause (3), the President—

(a) may suspend the member or office holder pending the outcome of the
complaint; and

(b) shall appoint a tribunal in accordance with clause (5).

(5) The tribunal shall consist of—

(a) a person who holds, or has held office as a judge of a superior court,
who shall be the chairperson;

(b) at least two persons who are qualified to be appointed as High Court
judges; and

(c) one other member who is qualified to assess the facts in respect of the
particular ground for removal.

(6) The tribunal shall investigate the matter expeditiously, and report on the
facts and make a binding recommendation to the President, who shall act in
accordance with the recommendation within thirty days.

(7) A person suspended under this Article is entitled to continue to receive one-
half of the remuneration and benefits of the office while suspended.

General functions and powers

252. (1) Each commission, and each holder of an independent office—

(a) may conduct investigations on its own initiative or on a complaint

made by a member of the public;

(b) has the powers necessary for conciliation, mediation and negotiation;

(c) shall recruit its own staff; and

(d) may perform any functions and exercise any powers prescribed by
legislation, in addition to the functions and powers conferred by this
Constitution.

167
 (2) A complaint to a commission or the holder of an independent office may be
made by any person entitled to institute court proceedings under Article 22
(1) and (2).

(3) The following commissions and independent offices have the power to
issue a summons to a witness to assist for the purposes of its
investigations—

(a) the Kenya National Human Rights and Equality Commission;

(b) the Judicial Service Commission;

(c) the National Land Commission; and

(d) the Auditor-General.

Incorporation of commissions and independent offices

253. Each commission and each independent office—

(a) is a body corporate with perpetual succession and a seal; and

(b) is capable of suing and being sued in its corporate name.

Reporting by commissions and independent offices

254. (1) As soon as practicable after the end of each financial year, each
commission, and each holder of an independent office, shall submit a report
to the President and to Parliament.

(2) At any time, the President, the National Assembly or the Senate may
require a commission or holder of an independent office to submit a report
on a particular issue.

(3) Every report required from a commisssion or holder of an independent

office under this Article shall be published and publicised.

168
 CHAPTER SIXTEEN

AMENDMENT OF THIS CONSTITUTION

Amendment of this Constitution

255. (1) A proposed amendment to this Constitution shall be enacted in accordance

with Article 256 or 257, and approved in accordance with clause (2) by a
referendum, if the amendment relates to any of the following matters––

(a) the supremacy of this Constitution;

(b) the territory of Kenya;

(c) the sovereignty of the people;

(d) the national values and principles of governance mentioned in Article

10 (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

independent offices to which Chapter Fifteen applies;

(h) the functions of Parliament;

(i) the objects, principles and structure of devolved government; or

(j) the provisions of this Chapter.

(2) A proposed amendment is approved by a referendum under clause (1) if––

(a) at least twenty per cent of the registered voters in each of at least half
of the counties vote in the referendum; and

(b) the amendment is supported by a simple majority of the citizens

voting in the referendum.

(3) An amendment to this Constitution that does not relate to a matter

mentioned in clause (1) shall be enacted either—

(a) by Parliament, in accordance with Article 256; or

(b) by the people and Parliament, in accordance with Article 257.

169
Amendment by parliamentary initiative

256. (1) A Bill to amend this Constitution—

(a) may be introduced in either House of Parliament;

(b) may not address any other matter apart from consequential
amendments to legislation arising from the Bill;

(c) shall not be called for second reading in either House within ninety
days after the first reading of the Bill in that House; and

(d) shall have been passed by Parliament when each House of Parliament
has passed the Bill, in both its second and third readings, by not less
than two-thirds of all the members of that House.

(2) Parliament shall publicise any Bill to amend this Constitution, and facilitate
public discussion about the Bill.

(3) After Parliament enacts a Bill to amend this Constitution, the Speakers of
the two Houses of Parliament shall jointly submit to the President—

(a) the Bill, for assent and publication; and

(b) a certificate that the Bill has been enacted by Parliament in

accordance with this Article.

(4) Subject to clause (5), the President shall assent to the Bill and cause it to be
published within thirty days after the Bill is enacted by Parliament.

(5) If a Bill to amend this Constitution proposes an amendment relating to a

matter mentioned in Article 255 (1)—

(a) before assenting to the Bill, the President shall request the
Independent Electoral and Boundaries Commission to conduct, within
ninety days, a national referendum for approval of the Bill; and

(b) within thirty days after the chairperson of the Independent Electoral
and Boundaries Commission has certified to the President that the Bill
has been approved in accordance with Article 255 (2), the President
shall assent to the Bill and cause it to be published.

170
Amendment by popular initiative

257. (1) An amendment to this Constitution may be proposed by a popular initiative

signed by at least one million registered voters.

(2) A popular initiative for an amendment to this Constitution may be in the

form of a general suggestion or a formulated draft Bill.

(3) If a popular initiative is in the form of a general suggestion, the promoters

of that popular initiative shall formulate it into a draft Bill.

(4) The promoters of a popular initiative shall deliver the draft Bill and the
supporting signatures to the Independent Electoral and Boundaries
Commission, which shall verify that the initiative is supported by at least
one million registered voters.

(5) If the Independent Electoral and Boundaries Commission is satisfied that

the initiative meets the requirements of this Article, the Commission shall
submit the draft Bill to each county assembly for consideration within three
months after the date it was submitted by the Commission.

(6) If a county assembly approves the draft Bill within three months after the Comment [PK16]: Thre is a logical lapse here, in
that a counties cousl mischievously frustrate the
date it was submitted by the Commission, the speaker of the county process by simply not calling a vote with the 3
months allowed to them.
assembly shall deliver a copy of the draft Bill jointly to the Speakers of the
two Houses of Parliament, with a certificate that the county assembly has
approved it.

(7) If a draft Bill has been approved by a majority of the county assemblies, it
shall be introduced in Parliament without delay.

(8) A Bill under this Article is enacted by Parliament if supported by a majority

of the members of each House.

(9) If Parliament enacts the Bill, it shall be submitted to the President for assent
in accordance with Articles 256 (4) and (5).

(10) If either House of Parliament fails to pass the Bill, or the Bill relates to a
matter mentioned in 255 (1), the proposed amendment shall be submitted to
the people in a referendum.

(11) Article 255 (2) applies, with any necessary modifications, to a referendum
under clause (9).

171
 CHAPTER SEVENTEEN

GENERAL PROVISIONS

Enforcement of this Constitution

258. (1) Every person has the right to institute court proceedings, claiming that this
Constitution has been contravened, or is threatened with contravention.

(2) In addition to a person acting in their own interest, court proceedings under
clause (1) may be instituted by—

(a) a person acting on behalf of another person who cannot act in their
own name;

(b) a person acting as a member of, or in the interest of, a group or class
of persons;

(c) a person acting in the public interest; or

(d) an association acting in the interest of one or more of its members.

Construing this Constitution

259. (1) This Constitution shall be interpreted in a manner that—

(a) promotes its purposes, values and principles;

(b) advances the rule of law, and the human rights and fundamental
freedoms in the Bill of Rights;

(c) permits the development of the law; and

(d) contributes to good governance.

(2) If there is a conflict between different language versions of this

Constitution, the English language version prevails.

(3) Every provision of this Constitution shall be construed according to the

doctrine of interpretation that the law is always speaking and, therefore,
among other things—

(a) a function or power conferred by this Constitution on an office may

be performed or exercised as occasion requires, by the person holding
the office;

172
 (b) any reference in this Constitution to a State or other public office or
officer, or a person holding such an office, includes a reference to the
person acting in or otherwise performing the functions of the office at
any particular time;

(c) a reference in this Constitution to an office, State organ or locality

named in this Constitution shall be read with any formal alteration
necessary to make it applicable in the circumstances; and

(d) a reference in this Constitution to an office, body or organisation is, if

the office, body or organisation has ceased to exist, a reference to its
successor or to the equivalent office, body or organisation.

(4) In this Constitution, unless the context otherwise requires—

(a) if a word or expression is defined in this Constitution, any

grammatical variation or cognate expression of the word or
expression has a corresponding meaning, read with the changes
required by the context; and

(b) the word “includes” means “includes, but is not limited to”.

(5) In calculating time between two events for any purpose under this
Constitution, if the time is expressed—

(a) as days, the day on which the first event occurs shall be excluded, and
the day by which the last event may occur shall be included;

(b) as months, the time period ends at the beginning of the day in the
relevant month—

(i) that has the same number as the date on which the period
began, if that month has a corresponding date; or

(ii) that is the last day of that month, in any other case; or

(iii) as years, the period of time ends at the beginning of the

date of the relevant year that corresponds to the date on
which the period began.

(6) If a period of time prescribed by this Constitution for any purpose is six
days or less, Sundays and public holidays shall not count when calculating
the time.

173
 (7) If, in any particular circumstances, the period of time prescribed by this
Constitution ends on a Sunday or a public holiday, the period extends to the
first subsequent day that is not a Sunday or public holiday.

(8) If a particular time is not prescribed by this Constitution for performing a

required act, the act shall be done without unreasonable delay, and as often
as occasion arises.

(9) If any person or State organ has authority under this Constitution to extend
a period of time prescribed by this Constitution, the authority may be
exercised either before or after the end of the period, unless a contrary
intention is expressly mentioned in the provision conferring the authority.

(10) Except to the extent that this Constitution provides otherwise, if a person
has vacated an office established under this Constitution, the person may, if
qualified, again be appointed, elected or otherwise selected to hold the
office in accordance with this Constitution.

(11) If a function or power conferred on a person under this Constitution is

exercisable by the person only on the advice or recommendation, with the
approval or consent of, or on consultation with, another person, the function
may be performed or the power exercised only on that advice,
recommendation, with that approval or consent, or after that consultation,
except to the extent that this Constitution provides otherwise.

Interpretation

260. In this Constitution, unless the context requires otherwise—

“adult” means an individual who has attained the age of eighteen years;

“affirmative action” includes any measure designed to overcome or

ameliorate an inequity or the systemic denial or infringement of a right or
fundamental freedom;

“child” means an individual who has not attained the age of eighteen years;

“contravene” includes fail to comply with;

“county legislation” means a law made by a county government or under

under authority conferred by a county government;

174
“disability” includes any physical, sensory, mental, psychological or other
impairment, condition or illness that has, or is perceived by significant
sectors of the community to have, a substantial or long-term effect on an
individual’s ability to carry out ordinary day-to-day activities;

“document” includes––

(a) any publication, or any matter written, expressed, or inscribed on any

substance by means of letters, figures or marks, or by more than one
of those means, that is intended to be used or may be used for the
purpose of recording that matter; and

(b) electronic files;

“effective date” means the date that this Constitution came into force;

“fail” includes refuse;

“financial year” means the period of twelve months ending on the thirtieth
day of June or other day prescribed by national legislation, but the initial
financial year of any entity is the period of time from its coming into
existence until the immediately following thirtieth day of June, or other day
prescribed by national legislation;

“Gazette” means the Kenya Gazette published by authority of the national

government, or a supplement to the Kenya Gazette;

“guarantee” means any absolute or conditional promise, commitment or

undertaking by the national government to partially or completely re-pay
any loan to a county government or any person;

“judicial officer” means a registrar, deputy registrar, magistrate, Kadhi or

the presiding officer of a court established under Article 169 (1) (d);

“land” includes—

(a) the surface of the earth and the subsurface rock;

(b) any body of water on or under the surface;

(c) marine waters in the territorial sea and exclusive economic zone;

(d) natural resources completely contained on or under the surface; and

(e) the air space above the surface;

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“legislation” includes––

(a) an Act of Parliament, or a law made under authority conferred by an

Act of Parliament; or

(b) a law made by an assembly of a county government, or under

authority conferred by such a law;

“loan” includes any form of borrowing, lending or deferred payment in

respect of which money from a public fund may be used, or is required to
be used, for payment or repayment;

“marginalised community” means—

(a) a community that, because of its relatively small population or for any
other reason, has been unable to fully participate in the integrated
social and economic life of Kenya as a whole;

(b) a traditional community that, out of a need or desire to preserve its

unique culture and identity from assimilation, has remained outside
the integrated social and economic life of Kenya as a whole;

(c) an indigenous community that has retained and maintained a

traditional lifestyle and livelihood based on a hunter or gatherer
economy; or

(d) pastoral persons and communities, whether they are—

(i) nomadic; or

(ii) a settled community that, because of its relative geographic

isolation, has experienced only marginal participation in the
integrated social and economic life of Kenya as a whole;

“marginalised group” means a group of people who, because of laws or

practices before, on, or after the effective date, were or are disadvantaged
by discrimination on one or more of the grounds in Article 27 (4);

“national legislation” means an Act of Parliament, or a law made under

authority conferred by an Act of Parliament;

“natural resources” means the physical non-human factors and components,

whether renewable or non-renewable, including—

(a) sunlight;
176
(b) surface and groundwater;

(c) forests, biodiversity and genetic resources; and

(d) rocks, minerals, fossil fuels and other sources of energy;

“older member of society” means a person who has attained the age of sixty
years;

“person” includes a company, association or other body of persons whether

incorporated or unincorporated;

“political party” means an association contemplated in Part 3 of Chapter

Seven;

“property” includes any vested or contingent right to, or interest in or

arising from—

(a) land, or permanent fixtures on, or improvements to, land;

(b) goods or personal property;

(c) intellectual property; or

(d) money, chooses in action or negotiable instruments;

“public officer” means—

(a) any State Officer; or

(b) any person, other that a State Officer, who holds a public office;

“public office” means an office in the national government, a county

government or the public service, if the remuneration and benefits of the
office are payable directly from the Consolidated Fund or directly out of
money provided by Parliament;

“public service” means the collectivity of all individuals, other than State
officers, performing a function within a State organ;

“Republic” means the Republic of Kenya;

“State”, when used as a noun, means the collectivity of offices, organs and
other entities comprising the government of the Republic under this
Constitution;

“State office” means any of the following offices––

(a) President;
177
(b) Deputy President;

(c) Cabinet Secretary;

(d) Member of Parliament;

(e) Judges and Magistrates;

(f) member of a commission to which Chapter Fifteen applies;

(g) holder of an independent office to which Chapter Fifteen applies;

(h) member of a county assembly, governor or deputy governor of a

county, or other member of the executive committee of a county
government;

(i) Attorney-General;

(j) Director of Public Prosecutions;

(k) Secretary to the Cabinet;

(l) Principal Secretary;

(m) Chief of the Kenya Defence Forces;

(n) commander of a service of the Kenya Defence Forces;

(o) Director-General of the National Intelligence Service;

(p) Inspector-General, and the Deputy Inspectors-General, of the

National Police Service;

(q) an office established and designated as a State office by national

legislation;

“State officer” means a person holding a State office;

“State organ” means a commission, office, agency or other body established

under this Constitution;

“writing” includes printing, photography, lithography, typewriting, Braille,

and any other means of representing or reproducing words in a visible form;
and

“youth” means the collectivity of all individuals in the Republic who—

(a) have attained the age of eighteen years; but

(b) have not attained the age of thirty-five years.

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 CHAPTER EIGHTEEN

TRANSITIONAL AND CONSEQUENTIAL PROVISIONS

Consequential legislation

261. (1) Parliament shall enact any legislation required by this Constitution to be
enacted to govern a particular matter within the period mentioned in the
Fifth Schedule, commencing on the effective date.

(2) Despite clause (1), the National Assembly may, by resolution supported by
the votes of at least two-thirds of all the members of the National
Assembly, extend the period prescribed in respect of any particular matter
under clause (1), by a period not exceeding one year.

(3) The power of the National Assembly contemplated under clause (2), may
be exercised—

(a) only once in respect of any particular matter; and

(b) only in exceptional circumstances to be certified by the Speaker of the

National Assembly.

(4) For the purposes of clause (1), the Attorney-General in consultation with
the Commission on the Implementation of this Constitution, shall prepare
the relevant Bills for tabling before Parliament, as soon as reasonably
practicable, to enable Parliament to enact the legislation within the period
mentioned.

(5) If Parliament fails to enact any particular legislation within the mentioned
time, any person may petition the High Court on the matter.

(6) The High Court in determining a petition under clause (5) may—

(a) make a declaratory order on the matter; and

(b) transmit an order directing Parliament and the Attorney-General to

take steps to ensure that the required legislation is enacted, within the
period mentioned in the order, and to report the progress to the Chief
Justice.

(7) If Parliament fails to enact legislation in accordance with an order under

clause (6) (b), the Chief Justice shall advise the President to dissolve
Parliament and the President shall dissolve Parliament.

179
 (8) If Parliament has been dissolved under clause (7), the new Parliament shall
enact the required legislation within the periods mentioned in the Fifth
Schedule beginning with the date of commencement of the term of the new
Parliament.

(9) If the new Parliament fails to enact legislation in accordance with clause
(8), the provisions of clauses (1) to (8) shall apply afresh.

Transitional and consequential provisions

262. The transitional and consequential provisions mentioned in the Sixth

Schedule shall take effect on the effective date.

Effective Date

263. This Constitution shall come into force on its promulgation by the President
or on the expiry of a period of fourteen days from the date of the
publication in the Gazette of the final result of the referendum ratifying this
Constitution, whichever is the earlier.

Repeal of previous constitution

264. The Constitution in force immediately before the effective date shall stand
repealed on the effective date.

SCHEDULES

FIRST SCHEDULE

(Article 6 (1))

COUNTIES

1. Mombasa
2. Kwale
3. Kilifi
4. Tana River
5. Lamu
6. Taita/Taveta
7. Garissa
8. Wajir
9. Mandera
10. Marsabit

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11. Isiolo
12. Meru .
13. Tharaka-Nithi
14. Embu
15. Kitui
16. Machakos
17. Makueni
18. Nyandarua
19. Nyeri
20. Kirinyaga
21. Murang'a
22. Kiambu
23. Turkana
24. West Pokot
25. Samburu
26. Trans Nzoia
27. Uasin Gishu
28. Elgeyo/Marakwet
29. Nandi
30. Baringo
31. Laikipia
32. Nakuru
33. Narok
34. Kajiado
35. Kericho
36. Bomet
37. Kakamega
38. Vihiga
39. Bungoma
40. Busia
41. Siaya
42. Kisumu
43. Homa Bay
44. Migori
45. Kisii
46. Nyamira
47. Nairobi City

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 SECOND SCHEDULE

(Article 9 (2))

NATIONAL SYMBOLS

(a) The National Flag

Note–– All dimensions given do not necessarily represent any particular measurement and are
merely proportional.

Description––
Three major strips of equal width coloured from top to bottom black, red and green and
separated by narrow white strips, with a symmetrical shield and white spears superimposed
centrally.

182
(b) The National Anthem

1 1
Ee Mungu nguvu yetu O God of all creation
Ilete baraka kwetu. Bless this our land and nation.

Haki iwe ngao na mlinzi Justice be our shield and defender

Natukae na undugu May we dwell in unity

Amani na uhuru Peace and liberty

Raha tupate na ustawi Plenty be found within our borders.

2 2
Amkeni ndugu zetu Let one and all arise
Tufanye sote bidii With hearts both strong and true.

Nasi tujitoe kwa nguvu Service be our earnest endeavour,

Nchi yetu ya Kenya, And our Homeland of Kenya

Tunayoipenda Heritage of splendour,

Tuwe tayari kuilinda. Firm may we stand to defend.

3 3
Natujenge taifa letu Let all with one accord
Ee, ndio wajibu wetu In common bond united,

Kenya istahili heshima Build this our nation together

Tuungane mikono And the glory of Kenya

Pamoja kazini The fruit of our labour

Kila siku tuwe na shukrani. Fill every heart with thanksgiving

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(c) The Coat of Arms

(d) The Public Seal

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 THIRD SCHEDULE

(Articles 74, 141 (3) and 148 (5))

NATIONAL OATHS AND AFFIRMATIONS

OATH OR SOLEMN AFFIRMATION OF ALLEGIANCE OF THE

PRESIDENT/ACTING PRESIDENT AND THE DEPUTY PRESIDENT

I, ……………. , in full realisation of the high calling I assume as President/Acting President

of the Republic of Kenya, do swear/solemnly affirm that I will be faithful and bear true
allegiance to the Republic of Kenya; that I will obey, preserve, protect and defend this
Constitution of Kenya, as by law established, and all other laws of the Republic; and that I
will protect and uphold the sovereignty, integrity and dignity of the people of Kenya. (In the
case of an oath–– So help me God.)

OATH OR SOLEMN AFFIRMATION OF DUE EXECUTION OF OFFICE FOR THE

PRESIDENT/ACTING PRESIDENT

I, ……………… , swear/solemnly affirm that I will truly and diligently serve the people and
the Republic of Kenya in the office of the President/ Acting President of the Republic of
Kenya; that I will diligently discharge my duties and perform my functions in the Office of
President/Acting President of the Republic of Kenya; and I will do justice to all in accordance
with this Constitution, as by law established, and the laws of Kenya, without fear, favour,
affection or ill-will. (In the case of an oath–– So help me God.)

OATH OR SOLEMN AFFIRMATION OF DUE EXECUTION OF OFFICE FOR THE

DEPUTY PRESIDENT

I, ……………… , do swear/solemnly affirm that I will always truly and diligently serve the
people and the Republic of Kenya in the office of the Deputy President of the Republic of
Kenya; that I will diligently discharge my duties and perform my functions in the said office,
to the best of my judgment; that I will at all times, when so required, faithfully and truly give
my counsel and advice to the President of the Republic of Kenya; that I will do justice to all
without fear, favour, affection or ill-will; and that I will not directly or indirectly reveal such
matters as shall come to my knowledge in the discharge of my duties and committed to my
secrecy. (In the case of an oath–– So help me God.)

OATH OR SOLEMN AFFIRMATION OF DUE EXECUTION OF OFFICE FOR A

CABINET SECRETARY

185
I, …………………, being appointed a Cabinet Secretary of Kenya, do swear/solemnly affirm
that I will at all times be faithful to the Republic of Kenya; that I will obey, respect and
uphold this Constitution of Kenya and all other laws of the Republic; that I will well and truly
serve the people and the Republic of Kenya in the Office of a Cabinet Secretary; that I
undertake to hold my office as Cabinet Secretary with honour and dignity; that I will be a true
and faithful counsellor to the Presidentfor the good management of the public affairs of the
Republic of Kenya; that I will not divulge directly or indirectly such matters as shall come to
my knowledge in the discharge of my duties and committed to my secrecy except as may be
required for the due discharge of my duties as Cabinet Secretary; and that I will perform the
functions of my office conscientiously and to the best of my ability. (In the case of an oath––
So help me God.).

OATH OR SOLEMN AFFIRMATION OF DUE EXECUTION OF OFFICE FOR

SECRETARY TO THE CABINET/ A PRINCIPAL SECRETARY

I, ……………………, being called on to exercise the functions of Secretary to the Cabinet /a

Principal Secretary, do swear/solemnly affirm that, except with the authority of the President,
I will not directly or indirectly reveal the nature or contents of any business, proceedings or
document of the Cabinet committed to my secrecy, except as may be required for the due
discharge of my duties as Secretary to the Cabinet /such Principal Secretary. (In the case of
an oath–– So help me God.
OATHS FOR THE CHIEF JUSTICE /PRESIDENT OF THE SUPREME COURT,
JUDGES OF THE SUPREME COURT, JUDGES OF THE COURT OF APPEAL AND
JUDGES OF THE HIGH COURT.

I, ……………………, (The Chief Justice /President of the Supreme Court, a judge of the
Supreme Court, a judge of the Court of Appeal, a judge of the High Court) do (swear in the
name of the Almighty God)/(solemnly affirm) to diligently serve the people and the Republic
of Kenya and to impartially do Justice in accordance with this Constitution as by law
established, and the laws and customs of the Republic, without any fear, favour, bias,
affection, ill-will, prejudice or any political, religious or other influence. In the exercise of the
judicial functions entrusted to me, I will at all times, and to the best of my knowledge and
ability, protect, administer and defend this Constitution with a view to upholding the dignity
and the respect for the judiciary and the judicial system of Kenya and promoting fairness,
independence, competence and integrity within it. (So help me God.)

OATH /AFFIRMATION OF MEMBER OF PARLIAMENT (SENATE/ NATIONAL

ASSEMBLY)

I,……………………, having been elected a member of the Senate /National Assembly do

swear (in the name of the Almighty God) (solemnly affirm) that I will bear true faith and
allegiance to the People and the Republic of Kenya; that I will obey, respect, uphold,
preserve, protect and defend this Constitution of the Republic of Kenya; and that I will

186
faithfully and conscientiously discharge the duties of a member of Parliament. (So help me
God).

OATH FOR SPEAKER/DEPUTY SPEAKER OF THE SENATE/NATIONAL

ASSEMBLY

I,……………, having been elected as Speaker/Deputy Speaker of the Senate/ National

Assembly do swear (in the name of the Almighty God) (solemnly affirm) that I will bear true
faith and allegiance to the people and the Republic of Kenya; that I will faithfully and
conscientiously discharge my duties as Speaker/Deputy Speaker of the Senate/National
Assembly; that I will obey, respect, uphold, preserve, protect and defend this Constitution of
the Republic of Kenya; and that I will do right to all manner of persons in accordance with
this Constitution of Kenya and the laws and conventions of Parliament without fear or favour,
affection or ill will (So help me God).

187
 FOURTH SCHEDULE

(Article 185 (1))

DISTRIBUTION OF FUNCTIONS BETWEEN THE NATIONAL GOVERNMENT AND THE

COUNTY GOVERNMENTS

Part 1 – National Government

1. Foreign affairs, foreign policy and international trade.

2. The use of international waters and water resources.
3. Immigration and citizenship.
4. The relationship between religion and state.
5. Language policy and the promotion of official and local languages.
6. National defence and the use of the national defence services.
7. Police services, including—
(a) the setting of standards of recruitment, training of police and use of
police services;
(b) criminal law; and
(c) correctional services.
8. Courts.
9. National economic policy and planning.
10. Monetary policy, currency, banking (including central banking), the incorporation
and regulation of banking, insurance and financial corporations.
11. National statistics and data on population, the economy and society generally.
12. Intellectual property rights.
13. Labour standards.
14. Consumer protection, including standards for social security and professional
pension plans.
15. Education policy, standards, curricula, examinations and the granting of
university charters.
16. Universities, tertiary educational institutions and other institutions of research and
higher learning and primary schools , special education, secondary schools and
special education institutions.
17. Promotion of sports and sports education.
18. Transport and communications, including, in particular—
(a) road traffic;

188
 (b) the construction and operation of national trunk roads;
(c) standards for the construction and maintenance of other roads by
counties;
(d) railways;
(e) pipelines;
(f) marine navigation;
(g) civil aviation;
(h) space travel;
(i) postal services;
(j) telecommunications; and
(k) radio and television broadcasting.
19. National public works.
20. Housing policy.
21. General principles of land planning and the co-ordination of planning by the
counties.
22. Protection of the environment and natural resources with a view to establishing a
durable and sustainable system of development, including, in particular—
(a) fishing, hunting and gathering;
(b) protection of animals and wildlife;
(c) water protection, securing sufficient residual water, hydraulic
engineering and the safety of dams; and
(d) energy policy.
23. National referral health facilities.
24. Disaster management.
25. Ancient and historical monuments of national importance.
26. National elections.
28. Health policy.
29. Agricultural policy.
30. Veterinary policy.
31. Energy policy including electricity and gas reticulation and energy regulation.
32. Capacity building and technical assistance to the counties.
33. Public investment.
34. National betting, casinos and other forms of gambling.
35. Tourism policy and development.

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 Part 2—County Governments

The functions and powers of the county are—

1. Agriculture, including—
(a) crop and animal husbandry;
(b) livestock sale yards;
(c) county abattoirs;
(d) plant and animal disease control; and
(e) fisheries.
2. County health services, including, in particular—
(a) county health facilities and pharmacies;
(b) ambulance services;
(c) promotion of primary health care;
(d) licensing and control of undertakings that sell food to the public;
(e) veterinary services (excluding regulation of the profession);
(f) cemeteries, funeral parlours and crematoria; and
(g) refuse removal, refuse dumps and solid waste disposal.
3. Control of air pollution, noise pollution, other public nuisances and outdoor
advertising.
4. Cultural activities, public entertainment and public amenities, including—
(a) betting, casinos and other forms of gambling;
(b) racing;
(c) liquor licensing;
(d) cinemas;
(e) video shows and hiring;
(f) libraries;
(g) museums;
(h) sports and cultural activities and facilities; and
(i) county parks, beaches and recreation facilities.
5. County transport, including—
(a) county roads;
(b) street lighting;
(c) traffic and parking;
(d) public road transport; and

190
 (e) ferries and harbours, excluding the regulation of international and
national shipping and matters related thereto.
6. Animal control and welfare, including—
(a) licensing of dogs; and
(b) facilities for the accommodation, care and burial of animals.
7. Trade development and regulation, including—
(a) markets;
(b) trade licences (excluding regulation of professions);
(c) fair trading practices;
(d) local tourism; and
(e) cooperative societies.
8. County planning and development, including—
(a) statistics;
(b) land survey and mapping;
(c) boundaries and fencing;
(d) housing; and
(e) electricity and gas reticulation and energy regulation.
9. Pre-primary education, village polytechnics, homecraft centres and childcare
facilities.
10. Implementation of specific national government policies on natural resources and
environmental conservation, including—
(a) soil and water conservation; and
(b) forestry.
11. County public works and services, including—
(a) storm water management systems in built-up areas; and
(b) water and sanitation services.
12. Fire fighting services and disaster management.
13. Control of drugs and pornography.
14. Ensuring and coordinating the participation of communities and locations in
governance at the local level and assisting communities and locations to develop
the administrative capacity for the effective exercise of the functions and powers
and participation in governance at the local level.

191
 FIFTH SCHEDULE

(Article 261 (1))

FIFTH SCHEDULE

(Article 261 (1))

LEGISLATION TO BE ENACTED BY PARLIAMENT

CHAPTER AND ARTICLE TIME SPECIFICATION

CHAPTER TWO—REPUBLIC
Legislation in respect of culture (Article 11 (3)) Five years
CHAPTER THREE–– CITIZENSHIP
Legislation on citizenship (Article 18) One year
CHAPTER FOUR—THE BILL OF RIGHTS
Freedom of the media (Article 34) Three years
Family (Article 45) Five years
Consumer protection (Article 46) Four years
Fair administrative action (Article 47) Four years
Fair hearing (Article 50) Four years
Rights of persons detained, held in custody or detained Four years
(Article 51)
Kenya National Human Rights and Equality Commission One year
(Article 59)
CHAPTER FIVE—LAND AND ENVIRONMENT
Community land (Article 63) Five years
Regulation of land use and property (Article 66) Five years
Legislation on land (Article 68) 18 months
Agreements relating to natural resources (Article 71) Five years
Legislation regarding environment (Article 72) Four years
CHAPTER SIX—LEADERSHIP AND INTEGRITY
Ethics and anti-corruption commission (Article 79) One year
Legislation on leadership (Article 80) Two years
CHAPTER SEVEN—REPRESENTATION OF THE
PEOPLE
Legislation on elections (Article 82) One year
Electoral disputes (Article 87) One year

192
CHAPTER AND ARTICLE TIME SPECIFICATION

Independent Electoral and Boundaries Commission (Article One year

88)
Legislation on political parties (Article 92) One year
CHAPTER EIGHT—THE LEGISLATURE
Promotion of representation of marginalised groups (Article Five years
100)
Vacation of office of member of Parliament (Article 103) One year
Right of recall (Article 104) Two years
Determination of questions of membership of Parliament Two years
(Article 105)
Right to petition Parliament (Article 119) Two years
CHAPTER NINE—EXECUTIVE
Power of mercy (Article 133) One year
Assumption of office of president (Article 141) Two years
CHAPTER TEN—JUDICIARY
System of courts (Article 162) One year
Removal from office (Article 168) One year
Judiciary Fund (Article 173) Two years
Vetting of judges and magistrates (Sixth schedule, Section One year
21)
CHAPTER ELEVEN—DEVOLVED GOVERNMENT
Speaker of a county assembly (Article 178) One year
Urban areas and cities (Article 183) One year
Support for county governments (Article 189) Three years
Removal of a county governor (Article 191) 18 months
Vacation of office of member of county assembly (Article 18 months
194)
Public participation and county assembly powers, privileges Three years
and immunities (Article 196)
County assembly gender balance and diversity (Article 197) Three years
Legislation to effect Chapter eleven (Article 200 and Sixth 18 months
Schedule, section 15) and
CHAPTER TWELVE—PUBLIC FINANCE
Revenue Funds for county governments (Article 207) 18 months
Contingencies Fund (Article 208) One year
Loan guarantees by national government (Article 213) One year
Financial control (Article 225) Two years
Accounts and audit of public entities (Article 226) Four years
Procurement of public goods and services (Article 227) Four years
CHAPTER THIRTEEN—PUBLIC SERVICE
Values and principles of public service (Article 232) Four years
CHAPTER FOURTEEN—NATIONAL SECURITY

193
CHAPTER AND ARTICLE TIME SPECIFICATION

National security organs (Article 239) Two years

Command of the National Police Service (Article 245) Two years
GENERAL
Any other legislation required by this Constitution Five years

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 SIXTH SCHEDULE

(Article 262)

TRANSITIONAL AND CONSEQUENTIAL PROVISIONS

Part 1—General

Interpretation

1. In this Schedule, unless the context indicates otherwise—

(a) “Boundaries Commission” means Interim Independent Boundaries

Commission;

(b) “Electoral Commission” means Interim Independent Electoral

Commission;

(c) “former Constitution” means the Constitution in force before this

Constitution took effect.

Suspension of provisions of this Constitution

2. (1) The following provisions of this Constitution are suspended until the final
announcement of all the results of the first elections for Parliament under
this Constitution––

(a) Chapter Seven, except that the provisions of the Chapter shall apply
to the first general elections under this Constitution.

(b) Chapter Eight, except that the provisions of the Chapter relating to the
election of the National Assembly and the Senate shall apply to the
first general elections under this Constitution; and

(c) Articles 129 to 155 of Chapter Nine, except that the provisions of the
Chapter relating to the election of the President shall apply to the first
general elections under this Constitution.

(2) The provisions of this Constitution relating to devolved government,

including Article 187, are suspended until the date of the first elections for
county assemblies and governors held under this Constitution.

(2) Despite subsection (2)—

195
 (a) elections for county assemblies and governors shall be held in
accordance with Articles 177 and 180 of this Constitution; and

(b) the laws relating to devolved government, required by this Schedule

and Chapters Eleven and Twelve of this Constitution, shall be enacted
within the period stipulated in the Fifth Schedule.

(3) Article 62 (2) and (3) is suspended until the National Land Commission is
established.

Extension of application of provisions of the former constitution

3. (1) Until Parliament passes the Act anticipated in Articles 15 and 18, section 93
of the former Constitution continues to apply.

(2) Sections 30 to 40, 43 to 46 and 48 to 58 of the former Constitution, the

provisions of the former Constitution concerning the executive, and the
National Accord and Reconciliation Act, shall continue to operate until the
first general elections held under this Constitution, but the provisions of this
Constitution concerning the system of elections, eligibility for election and
the electoral process shall apply to that election.

(3) Until the National Police Service Commission mentioned in Article 243 is
established, section 108(2) of the former Constitution applies to
appointments, discipline and the removal of persons from office in the
National Police Service.

Parliamentary Select Committee

4. There shall be a select committee to be known as the Constitutional

Implementation Oversight Committee which shall be responsible for overseeing
the implementation of this Constitution and which, among other things –

(a) shall receive regular reports from the Commission on the

Implementation of the Constitution on the implementation of this
Constitution including reports concerning—

(i) the preparation of the legislation required by this

Constitution and any challenges in that regard;

(ii) the process of establishing the new commissions;

196
 (iii) the process of establishing the infrastructure necessary for
the proper operation of each county including progress on
locating offices and assemblies and establishment and
transfers of staff;

(iv) the devolution of powers and functions to the counties

under the legislation contemplated in section 15 of this
Schedule; and

(v) any impediments to the process of implementing this

Constitution;

(b) coordinate with the Attorney-General, the Commission on the

Implementation of the Constitution and relevant parliamentary
committees to ensure the timely introduction and passage of the
legislation required by this Constitution; and

(c) take appropriate action on the reports including addressing any

problems in the implementation of this Constitution.

Commission on the Implementation of this Constitution

5. (1) There is established the Commission on the Implementation of this

Constitution.

(2) The commission consists of—

(d) a chairperson; and

(e) eight other members.

(3) The members of the Commission shall—

(a) include persons with experience in public administration, human rights

and government; and

(b) not include any person who served as a member of the Committee of
Experts appointed under the Constitution of Kenya Review Act, 2008.

(4) Articles 248 to 254 apply to the Commission.

(5) After the Commission on Revenue Allocation has been established, the
Commission of Implementation of this Constitution shall send a notice of
its meetings to that Commission, and a member of the Commission on

197
 Revenue Allocation shall be permitted to attend and participate in any such
meeting, but shall not vote.

(6) The functions of the Commission shall be to—

(a) monitor, facilitate and oversee the development of legislation and

administrative procedures required to implement this Constitution;

(b) co-ordinate with the Attorney-General and the Kenya Law Reform
Commission in preparing for tabling in Parliament, the legislation
required to implement this Constitution;

(c) report regularly to the Constitutional Implementation Oversight

Committee on—

(i) progress in the implementation of this Constitution; and

(ii) any impediments to its implementation; and

(d) work with each constitutional commission to ensure that the letter and
spirit of this Constitution is respected.

(7) The Commission on the Implementation of this Constitution shall stand

dissolved five years after it is established or at the full implementation of
this Constitution as determined by Parliament, whichever is sooner, but the
National Assembly may, by resolution, extend its life.

Part 2—Existing obligations, laws and rights

Rights, duties and obligations of the State

6. Except to the extent that this Constitution expressly provides to the contrary, all
rights and obligations, however arising, of the Government or the Republic and
subsisting immediately before the effective date shall continue as rights and
obligations of the national government or the Republic under this Constitution.

Existing laws

7. (1) All law in force immediately before the effective date continues in force
and shall be construed with the alterations, adaptations, qualifications and
exceptions necessary to bring it into conformity with this Constitution.

(2) If, with respect to any particular matte—r

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 (a) a law that was in effect immediately before the effective date assigns
responsibility for that matter to a particular State organ or public
officer; and

(b) a provision of this Constitution that is in effect assigns responsibility

for that matter to a different State organ or public officer; or

(c) the provisions of this Constitution prevail to the extent of the conflict.

Existing land holdings and agreements relating to natural resources

8. (1) On the effective date, any freehold interest in land in Kenya held by a
person who is not a citizen shall revert to the Republic of Kenya to be held
on behalf of the people of Kenya, and the State shall grant to the person a
ninety-nine year lease at a peppercorn rent.

(2) On the effective date, any other interest in land in Kenya greater than a
ninety-nine year lease held by a person who is not a citizen shall be
converted to a ninety-nine year lease.

(3) The provisions of Article 71 shall not take effect until the legislation
contemplated under that Article is enacted.

Part 3—National government

Elections and by-elections

9. (1) The first elections for the President, the National Assembly, the Senate,
county assemblies and county governors under this Constitution shall be
held at the same time, within sixty days after the dissolution of the National
Assembly at the end of its term.

(2) Despite subsection (1), if the coalition established under the National
Accord is dissolved and general elections are held before 2012, elections
for the first county assemblies and governors shall be held during 2012.

National Assembly

10. The National Assembly existing immediately before the effective date shall
continue as the National Assembly for the purposes of this Constitution for
its unexpired term.

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The Senate

11. (1) Until the first Senate has been elected under this Constitution—

(a) the functions of the Senate shall be exercised by the National

Assembly; and

(b) any function or power that is required to be performed or exercised by

both Houses, acting jointly or one after the other, shall be performed
or exercised by the National Assembly.

(2) Any function or power of the Senate shall, if performed or exercised by the
National Assembly before the date contemplated in subsection (1), be
deemed to have been duly performed or exercised by the Senate.

The Executive

12. (1) The persons occupying the offices of President and Prime Minister
immediately before the effective date shall continue to serve as President
and Prime Minister respectively, in accordance with the former Constitution
and the National Accord and Reconciliation Act until the first general
elections held under this Constitution, unless they vacate office in terms of
the former Constitution and the Accord.

(2) The persons occupying the offices of Vice-President and Deputy Prime
Minister or holding a position in the Cabinet or as an Assistant Minister
immediately before the effective date shall continue to serve in accordance
with the former Constitution until the first general elections held under this
Constitution unless they vacate or are removed from office in accordance
with the former Constitution and the National Accord and Reconciliation
Act.

(3) A person who was elected President before the effective date is not eligible
to stand for election as President under this Constitution.

Oath of allegiance to this Constitution

13. On the effective date, the President and any State officer or other person
who had, before the effective date, taken and subscribed an oath or
affirmation of office under the former Constitution, or who is required to
take and subscribe an oath or affirmation of office under this Constitution,

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 shall take and subscribe the appropriate oath or affirmation under this
Constitution.

Part 4—Devolved Government

Operation of provisions relating to devolved government

14. (1) The laws contemplated in section (2) (3) (b) and section 15 may be enacted
only after the Commission on the Implementation of the Constitution and, if
it has been established, the Commission on Revenue Allocation, have been
consulted and any recommendations of the Commissions have been
considered by Parliament.

(2) The Commissions shall be given at least thirty days to consider legislation
under subsection (1).

(3) Subsections (1) and (2) lapse when the Commission on the Implementation
of the Constitution is dissolved.

Provision for devolution of functions to be made by Act of Parliament

15. (1) Parliament shall, by legislation, make provision for the phased transfer,
over a period of not more than three years from the date of the first election
of county assemblies, from the national government to county governments
of the functions assigned to them under Article 185.

(2) The legislation mentioned in subsection (1) shall—

(a) provide for the way in which the national government shall—

(i) facilitate the devolution of power;

(ii) assist county governments in building their capacity to

govern effectively and provide the services for which they
are responsible; and

(iii) support county governments;

(b) establish criteria that must be met before particular functions are
devolved to county governments to ensure that those governments are
not given functions which they cannot perform;

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 (c) permit the asymmetrical devolution of powers to ensure that functions
are devolved promptly to counties that have the capacity to perform
them but that no county is given functions it cannot perform; and

(d) provide mechanisms that ensure that the Commission on the

Implementation of the Constitution can perform its role in monitoring
the implementation of the system of devolved government effectively.

Division of revenue

16. Despite Article 217 (1), the first and second determinations of the basis of the
division of revenue among the counties shall be made at three year intervals,
rather than every five years as provided in that Article.

Provincial Administration

17. Within five years after the effective date, the national government shall
restructure the system of administration commonly known as the provincial
administration to accord with and respect the system of devolved government
established under this Constitution.

Local Authorities

18. All local authorities established under the Local Government Act (Cap. 265)
existing immediately before the effective date shall continue to exist subject to
any law that might be enacted.

Part 5 – Administration of Justice

Rules for the enforcement of the Bill of Rights

19. Until the Chief Justice makes the rules contemplated by Article 22, the Rules for
the enforcement of the fundamental rights and freedoms under section 84(6) of
the former Constitution shall continue in force with the alterations, adaptations,
qualifications and exceptions as may be necessary to bring them into conformity
with Article 22.

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The Judicial Service Commission

20. (1) The Judicial Service Commission shall be appointed within sixty days after
the effective date and the Commission shall be deemed to be properly
constituted under this Constitution despite the fact that there may be a
vacancy in its membership because of any of the bodies nominating or
electing members have not done so.

(2) Despite subsection (1), the Judicial Service Commission may not perform
its functions unless five members have been appointed.

(3) To ensure continuity in the operation of the Judicial Service Commission,

despite Article 171 (4), when the Commission is first constituted the
following members shall be appointed to serve for three years only—

(a) the Court of Appeal judge appointed under Article 171 (4) (c);

(b) the High Court judge appointed under Article 171 (4) (d);

(c) one of the advocates appointed under Article 171 (4) (f), to be
identified by the statutory body responsible for the professional
regulation of advocates; and

(d) one of the members appointed by the President under Article 171 (4)
(h), to be identified by the President.

(4) Until the Public Service Commission contemplated in Article 233 is

established, a person nominated by the Public Service Commission
established under section 106 of the former Constitution shall serve on the
Judicial Service Commission but, when the new Public Service
Commission is established, the person shall cease to be a member of the
Judicial Service Commission and the new Public Service Commission shall
nominate a person to serve on the Judicial Service Commission.

Establishment of the Supreme Court

21. (1) The establishment of, and appointment of judges to, the Supreme Court
shall be completed within one year after the effective date.

(2) Until the Supreme Court is established, the Court of Appeal shall have
jurisdiction over matters assigned to the Supreme Court.

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Judicial proceedings and pending matters

22. All judicial proceedings pending before any court shall continue to be heard
and shall be determined by the same court or a corresponding court
established under this Constitution or as directed by the Chief Justice or the
Registrar of the High Court.

Judges

23. (1) Within one year after the effective date, Parliament shall enact legislation,
which shall operate despite Article 160, 167 and 168, establishing
mechanisms and procedures for vetting, within a timeframe to be
determined in the legislation, the suitability of all judges and magistrates
who were in office on the effective date to continue to serve in accordance
with the values and principles set out in Articles 10 and 159.

(2) A removal, or a process leading to the removal, of a judge, from office by

virtue of the operation of legislation contemplated under subsection (1)
shall not be subject to question in, or review by, any court.

Chief Justice

24. (1) The Chief Justice in office immediately before the effective date shall,
within six months after the effective date, vacate office and may choose
either—

(a) to retire from the judiciary; or

(b) subject to the process of vetting under section 23, to continue to serve
on the Court of Appeal.

(2) A new Chief Justice shall be appointed by the President, subject to the
National Accord and Reconciliation Act, and after consultation with the
Prime Minister and with the approval of the National Assembly.

(3) Subsection (2) also applies if there are further vacancies in the office of
Chief Justice before the first general elections under this Constitution.

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 Part 6 – Commissions and Offices

Constitutional Commissions

25. (1) The Commission on the Implementation of the Constitution and the
Commission on Revenue Allocation shall be constituted within ninety days
after the effective date.

(2) The Salaries and Remuneration Commission shall be constituted within

nine months after the effective date.

(3) Until the legislation anticipated in Article 250 is in force, the persons
appointed as members or as chairperson of the Salaries and Remuneration
Commission shall be appointed by the President, subject to the National
Accord and Reconciliation Act, and after consultation with the Prime
Minister and with the approval of the National Assembly.

The Kenya National Human Rights and Equality Commission

26. (1) The commissioners of the Kenya National Commission on Human Rights
appointed under the Kenya National Commission on Human Rights Act
(Cap. 9) and the commissioners of the National Commission on Gender and
Development, appointed under the National Commission on Gender and
Development Act (Cap. 13) other than the Permanent Secretaries and the
Attorney-General or a representative of the Attorney-General, shall become
members of the Kenya National Human Rights and Equality Commission
for their unexpired term but each shall retain the terms of service as at the
effective date.

(2) The chairperson of the Kenya National Commission on Human Rights shall
be the chairperson of the Kenya National Human Rights and Equality
Commission for the unexpired term of that chairperson and the chairperson
of the National Commission on Gender and Development shall be the Vice-
Chairperson of the Kenya National Human Rights and Equality
Commission for that person’s unexpired term.

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The Interim Independent Boundaries Commission

27. (1) The Boundaries Commission established under the former Constitution
shall continue to function as constituted under that Constitution and in
terms of sections 41B and 41C but—

(a) it shall not determine the boundaries of the counties established under
this Constitution;

(b) it shall determine the boundaries of constituencies and wards using

the criteria mentioned in this Constitution; and

(c) members of the Commission shall be subject to Chapter Seven of this

Constitution.

(3) The requirement in Article 77(1) that a review of constituency and ward
boundaries shall be completed at least twelve months before a general
election does not apply to the review of boundaries preceding the first
elections under this Constitution.

(4) The Boundaries Commission shall ensure that the first review of
constituencies undertaken in terms of this Constitution shall not result in the
loss of a constituency existing on the effective date.

The Interim Independent Electoral Commission and Independent Electoral and

Boundaries Commission

28. (1) The Electoral Commission established under section 41 of the former
Constitution shall continue in office in terms of the former Constitution for
its unexpired term or until the Independent Electoral and Boundaries
Commission established under this Constitution is established, whichever is
later.

(2) When members of the Independent Electoral and Boundaries Commission

are selected, regard shall be had to the need for continuity and the retention
of expertise and experience.

New appointments

29. (1) The process of appointment of persons to fill vacancies arising in

consequence of the coming into force of this Constitution shall begin on the
effective date and be finalised within one year.

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 (2) Unless this Schedule prescribes otherwise, when this Constitution requires
an appointment to be made by the President with the approval of the
National Assembly, until after the first elections under this Constitution, the
President shall, subject to the National Accord and Reconciliation Act,
appoint a person after consultation with the Prime Minister and with the
approval of the National Assembly.

Part 6—Miscellaneous matters

Citizenship by birth

30. A Kenyan citizen is a citizen by birth if that citizen—

(1) acquired citizenship under Article 87 or 88 (1) of the former Constitution;
or
(2) would have acquired citizenship if Article 87 (2) read as follows:
“Every person who, having been born outside Kenya, is on 11th
December, 1963 a citizen of the United Kingdom and Colonies or a British
protected person shall, if his father or mother becomes, or would but for
his or her death have become, a citizen of Kenya by virtue of subsection
(1), become a citizen of Kenya on 12th December, 1963.”

Existing offices

31. (1) Unless this Schedule provides otherwise, a person who immediately before
the effective date, held or was acting in an office established by the former
Constitution shall on the effective date continue to hold or act in that office
under this Constitution for the unexpired period, if any, of the term of the
person.

(2) Subject to subsection (7) and section 24, a person who immediately before
the effective date held or was acting in a public office established by law, so
far as is consistent with this Constitution, shall continue to hold or act in
that office as if appointed to that position under this Constitution.

(3) The provisions of this section shall not affect the powers conferred on any
person or authority under this Constitution or legislation to abolish offices
or remove persons from an office contemplated in subsection (2).

(4) If a person has vacated an office that the person held before the effective
date, and that office is retained or established under this Constitution, the
person may, if qualified, again be appointed, elected, or otherwise selected

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 to hold that office in accordance with the provisions of this Constitution,
except to the extent that this Constitution expressly provides otherwise.

(5) The functions of the Director of Public Prosecutions shall be performed by

the Attorney-General until a Director of Public Prosecutions is appointed
under this Constitution.

(6) The functions of the Controller of Budget shall be performed by the

Auditor-General until a Controller of Budget is appointed under this
Constitution.

(7) Despite subsection (1), the Attorney-General and the Auditor-General shall
continue in office for a period of no more than twelve months after the
effective date and the subsequent appointments those offices shall be made
under this Constitution.

Pensions, gratuities and other benefits

32. The law applicable to pensions in respect of holders of constitutional offices

under the former Constitution shall be either the law that was in force at the
date on which those benefits were granted or any law in force at a later date
that is not less favourable to the person.

Succession of institutions, offices, assets and liabilities

33. An office or institution established under this Constitution is the legal

successor of the corresponding office or institution, established under the
former Constitution or by an Act of Parliament in force immediately before
the effective date, whether known by the same or a new name.

Currency

34. Nothing in Article 231(4) affects the validity of coins and notes issued
before the effective date.

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