We Hold the Government Responsible
http://www.ncck.org/index.php?option=com_content&view=article&id=170:we-hold-the-government-responsible&catid=43:news&Itemid=29
Monday, 14 June 2010 17:16 | Author: NCCK Communications
We hold Government Responsible
PRESS STATEMENT
1. Introduction
We the Christian church leaders in Kenya condemn the dastardly attack of peaceful Christians during the prayer rally held yesterday at Uhuru Park. The detonation of two explosive devices among the praying congregants led to the deaths of seven people and injury of more than a hundred.
We pray for all those who were injured that they will recover quickly, and for the comfort of the families who lost their loved ones. We send our condolences to the families of these martyrs who died for attending a rally to make their position clear. God is with you, and the martyrdom of your loved ones will not be in vain. We shall always hold these dear one close in our hearts and our prayers.
Jesus in The Holy Bible said these words: For where two or three come together in my name, there am I with them. (Matthew 18: 20). We state here categorically that this attack was an affront on God Himself, and He will, in His own ways, deal with the perpetrators. We especially remind those who planned and detonated those devices the words of Genesis 9: 6 Whoever sheds the blood of man, by man shall his blood be shed; for in the image of God has God made man.
As we stand here, there are indications that the emergency response by the Kenyatta National Hospital has been below the expectations of both the victims and the church leaders. While we appreciate the constraints of the hospital, we appeal for all necessary interventions by the Ministry of Medical Services in order to save lives and minimize suffering.
2. Pre-Meditated Attack
Appreciating that the same group of Christians have held gospel crusades at the same venue in the past without similar incidents, we are in no doubt that the bomb attacks are directly connected to the proposed new constitution. We indeed consider that the attack was a pre-meditated aggress on democracy; a cowardly act seemingly aimed at scaring Kenyans from expressing their right to oppose the proposed constitution.
Having been informed over and over that the passage of the new constitution during the referendum is a government project, we are left in no doubt that the government, either directly or indirectly, had a hand in this attack. Who else in this country holds explosive devices?
We also note with sadness that the police did not provide security at the rally as required in the law. Even worse, the police did not arrive at the scene until one hour after the explosions.
We therefore hold the government and the Yes team responsible for the attack and for the blood that was shed unless they prove to Kenyans that someone else planted and detonated the devices. The government has the responsibility of providing security and pre-empting and punishing crime.
3. Call for Restraint
On our part, we shall not be intimidated. We shall continue mobilizing and educating Kenyans so that they reject the draft constitution at the referendum. This draft constitution is its own greatest enemy, and all what is required is to open it up to Kenyans and they reject it.
What is in this draft constitution that some are willing to kill innocent Kenyans to make it pass?
Recognizing that Uhuru Park during the time of the attack was dedicated as an altar to God upon which prayers were offered, the shedding of blood was an unfortunate defilement. We therefore urge all Christian Church Leaders to congregate at the venue on Tuesday 15th June 2010 at 12:00 noon for prayers to cleanse the venue and pray for security of those who attend future meetings thereon.
4. Conclusion
In conclusion, we urge all God-fearing Kenyans to remember the words of 2 Corinthians 4: 8 – 11: “We are hard pressed on every side, but not crushed; perplexed but not in despair; persecuted, but not abandoned; struck down, but not destroyed. We always carry around in our body the death of Jesus, so that the life of Jesus may also be revealed in our body. For we who are alive are always being given over to death for Jesus’ sake, so that His life may be revealed in our mortal body.†Let us all stand firm in what we believe and defend the faith of the one who gave His life for us; and if need be, we shall also give our lives for Him.
The threats of violence shall never cow us into embracing injustice in our land.
Signed on this 14th day of June 2010 at Uhuru Park on behalf of the Kenya Christian Church Leaders.
Rev Canon Peter Karanja
Chairman
General Secretary, NCCK
On behalf of the organizations represented in the meeting:
Anglican Church of Kenya
Bible Way Restoration Ministries
Chrisco Fellowship
Christ is the Answer Ministries
Christian Lawyers’ Fellowship
Deliverance Church
Fellowship of Evangelical Independent Christian Churches of Kenya
Friends Church in Kenya
Kenya Assemblies of God
Kenya Christian Constitutional Forum
Living Waters
National Council of Churches of Kenya
Pentecostal Evangelistic Fellowship of Africa
Redeemed Gospel Church
Reformed Church of East Africa
Last Updated ( Monday, 14 June 2010 17:30 )
4th Memorandum to Committee of Experts
Thursday, 03 December 2009 00:00 | Author: NCCK Communications |
http://www.ncck.org/index.php?option=com_content&view=article&id=145:memo&catid=55:publications&Itemid=108
The 4th Memorandum
Presented by the
National Council of Churches of Kenya
to the
Committee of Experts for the Constitution of Kenya Review Process
Pursuant to section 23(c) of the
Constitution of Kenya Review Act No 9 of 2008
After studying and analysing the Harmonised Draft Constitution of Kenya, the Executive Committee of the National Council of Churches of Kenya is pleased to make the following proposals for consideration by the Committee of Experts:
CHAPTER TWO
Article 5 states that the territory of Kenya shall be defined by international law. We propose that the draft defines the territory of Kenya either in the constitution or in an Act of Parliament for avoidance of doubt.
CHAPTER THREE - NATIONAL VALUES, PRINCIPLES AND GOALS
The values stated in the draft are mixed up with goals and principles. The values are also stated as if they belong to state and public officers. We propose that the Chapter is re-written so that values, principles and goals be separated and stated in a clear way. The values should also be stated in a way that they can apply and inspire all Kenyans.
CHAPTER SIX - THE BILL OF RIGHTS
Article 33 provides for limitation of the Bill of Rights. One of the limitations in clause (4) limits the application of the Bill of Rights with regard to equality to facilitate implementation of the Islamic faith. The limitation is inconsistent with Article 10 of the draft constitution as it allows persons belonging to the Islamic religion to violate the Bill of Rights. We propose that Article 33(4) be deleted so that all Kenyan are subject to the Bill of Rights without exception.
Article 35 does not define what the term "life" means. Such a position may open the door for abortion and so called mercy killing (euthanasia) to be constitutional and legal. For avoidance of doubt as to whether the unborn child is a person or not, we propose that Article 35(3) reads as follows:
(3) "The life of a person begins at conception and ends at natural death".
Article 41 on the rights of children does not include the right to be born. In order to protect the unborn child, we propose that that a new Article 41(l) is inserted to read as follows:
(l) "To be born".
Article 42 provides for the right to found a family and to marry. In our view the definition of the parties to a marriage is not clear. We propose that Article 42(2) and (3) be deleted and a new Article 42(2) and (3) be inserted to read as follows:
(2) "Every adult has the right to marry a person of the opposite sex based upon the free consent of the parties; and has a right to found a family".
(3) "A person shall not marry another person of the same sex".
Article 49 provides for the right to religion and opinion. Article 49 has omitted the right to propagate one's religion and the right to convert to another religion. We propose that a new Article 49(3) be inserted to read as follows :
(3) "Every one has a right to propagate or convert from one religion to another".
Article 49(5) provides for the right of access to any institution or facility without any discrimination on the basis of one's religion. We take great exception to these provisions particularly with regard to institutions and facilities established for the purpose of propagating a religion of faith. We propose that a new clause (6) is inserted immediately after clause 5 to read as follows:
(5) "Clause (5) shall not apply to institutions and facilities that are established solely or partly for religious purposes".
CHAPTER ELEVEN - THE LEGISLATURE
Article 123 does not provide for the hierarchy of Parliament. We propose that the Senate be the Upper House and the National Assembly be the Lower House. The Lower House would be known as the National Assembly and the Upper House as the Senate. The new Article 123 should read as follows:
"There is established a Parliament of Kenya which shall consist of the Upper House which shall be referred to as the Senate and the Lower House which shall be referred to as the National Assembly".
Article 124 has mixed the roles of the National Assembly and the Senate. We propose that the roles for the two Houses be separated and clearly defined.
Article 125 (1) (a) provides that the members of the Senate are elected by the County Assembly. We propose that if the Senate is going to be the Upper House, with power to check the National Assembly and impeach the president, the Senators must be elected directly by the people of Kenya.
Article 125(b) and (c) requires a law to provide for the procedure of electing the representatives of the special interest groups in Parliament like women, youth and persons with disabilities. However, this law is not listed under the Sixth Schedule. We propose that the law that will provide for the provisions of Article (b) and (c) be listed in the Sixth Schedule and given one year for its enactment.
Article 126 (1) (a) provides that the number of constituencies will be provided for under an Act of Parliament. We wish to express concern that Parliament may abuse this power. We propose that the number of constituencies be provided for in the Constitution. However, we have noted that the 2009 Census Report and the Report of the Interim Independent Boundaries Commission will influence the number of constituencies. There is need for consensus building on this matter as a condition precedent to the subjecting of this draft to referendum. In case the three matters noted above are not attained, we propose that the constituencies be fixed at 210 in number subject to further amendments.
Article 126(1) (d) provides for seven seats for marginalised communities, marginalised groups and workers. It is difficult to know how this clause will be implemented. Article 126(2) and (3) should therefore be deleted or clearly written to ensure easy interpretation.
Article 127(1) (c) provides for the educational, ethical and moral qualification of members of parliament. However, the law that will bring into force this Article has not been listed in the Sixth Schedule. We propose that the proposed law be listed in the Sixth Schedule to be enacted within 6 months of the effective date of the constitution.
Article 130(f) provides that if a Member of Parliament is expelled from a political party, he loses his parliamentary seat. Political party matters and the discipline of their members should be confined within the party and legislation. We propose that Article 130(f) be amended by deleting the words "or is expelled from a political party in terms of Article 115".
Article 131(1) provides for the right of recall of members of parliament. However, the law that is required to implement this clause has been omitted from the Sixth Schedule. We propose that the Act of Parliament that will bring clause (2) into effect for the procedures of recalling a Member of Parliament be listed in the Sixth Schedule and be enacted within one year once the constitution comes into effect.
Article 132(2) provides for the period of six months to determine an electoral petition. However, it is not clear what happens if the petition is not determined by the end of the six months. We propose that this matter be clarified.
Article 137(3) provides that a Bill may originate in either House but a money bill should originate from the National Assembly. Article 139(2) provides that both Houses must pass a bill for it to become law. We find these two Articles to be entrenching duplicity and confusion in law making. We propose that all Bills originate in the National Assembly and are approved in the Senate before presentation to the President for assent. This will facilitate orderly consideration of bills.
Article 139(3) provides that each House shall have jurisdiction to originate Bill. We propose that in view that the Senate is the Upper House, only the National Assembly can originate a Bill and that only the Senate can present a Bill to the President for Assent.
Article 140 is not clear which House will handle the Bill once it is referred back by the President. We propose that the section be re-written to provide that the President can refer a bill back to the Senate and that the Senate may either amend it in line with the President's comments or may refer it to the National Assembly for further debate.
Article 146 provides how the decisions of the Senate will be made. We propose that the Article be rewritten in view of changes proposed in Articles 137, 139 and 140 and in view of the fact that the Senate shall check the National Assembly and protect interests of the Devolved Governments.
Article 151(5) provides for a registry of enactments. We propose that the registry is also established in the devolved of governments.
CHAPTER TWELVE - THE EXECUTIVE
Article 157(5) bars the President from holding a state or public office. We propose that the clause should include the following phrase after the word "office": "unless the State Office is held under clause (2)"
Article 158(3) should make it optional for the President to appoint High Commissioners by using the word "may" instead of the word "shall".
Article 159(3)(a) provides that the President shall ensure that the public participates in the legislation process without providing a mechanism particularly in view of the role of the Prime Minster as the Head of Government.
Article 163 (2) provides for the grounds for disqualification of a presidential candidate. However, being a parliamentary candidate or a candidate for a seat in a devolved government is not provided for as a ground for disqualification. We propose that a new clause (2) (d) be inserted to read as follows:
(d) "a parliamentary, regional or county assembly candidate".
Article 165 provides for petition on questions of validity of presidential elections. Article 165(1) provides that "any person" can file such a petition. We propose that this is clarified to limit the petitioner to registered voters only. The article should also be re-written to delete the "Constitutional Court" wherever it occurs and replace it with the "Supreme Court". The Supreme Court should be the only court with jurisdiction to determine presidential election petitions in Kenya.
Article 165(3) provides that the presidential petition shall be determined within seven days of filing the petition. It is not clear what happens if the petition is not heard and determined in any event. We propose that this matter is clarified.
Article 170 provides for the removal of the State President by impeachment. We propose that Article 170(1) and (2) be amended to require that both Houses of Parliament pass the motion of impeachment of the president with two thirds majority. We propose insertion of a clause in Article 170(2) to read as follows:
"After the National Assembly passes the motion to impeach the president, the Speaker of National Assembly shall forward the motion to the Speaker of the Senate within seven days".
Article 171(3) provides that the Speaker of the Senate shall act as the State President in case the Speaker of the National Assembly is not able. We propose that the order is reversed to provide that the Speaker of the Senate shall act if the Deputy President cannot act and the Speaker of the National Assembly shall act as president if the Speaker of the Senate is not bale to act.
Article 180(a) provides for the criteria for appointment of the Prime Minister. However, it is not clear how one determines the size of a political party. There are three ways of determining the size of a party namely, the number of parliamentary seats, the number of members in that party's register of members or the number of votes that were cast in support of the candidates for that party during elections. We propose that the number of parliamentary seats be used in determining who will be appointed Prime Minister so that Article 180(a) and (b) to read as follows:
(a) "the member who is the leader of the political party or coalition of parties with more than half the seats in the National Assembly, represented in parliament; or
(b) if the leader of the political party or coalition of parties with more than half of the seats in the National Assembly has been unable to command the confidence of the National Assembly, the member of the National Assembly who is the leader of the political party or coalition of parties with the second largest number of seats, represented in parliament.
Article 184(2) provides for the appointment of the Cabinet. The Prime Minister shall present names for appointment by the President. What is the meaning of the word "present"? Does it mean that the President must appoint with no option of rejecting the names? If one reads Article 184(2) together with Article 171(a), the President may be impeached for failing to appoint the cabinet. We find these provisions to be a recipe for conflict between the two offices.
The following issues are potential areas of conflict and require to be clearly spelt out in the constitution in view of the roles of the State President and Prime Minister:
•National Intelligence: national intelligence and counter intelligence service will be under the control of the Minister for Internal Security appointed by the Prime Minister. How will the president manage security in the country in this regard?
•Defence: the Minister for Defence will be under the control of the Prime Minister. As the Commander in Chief, the President is in charge of the Armed Forces. Who will the Minister for Defence report to?
•Foreign Affairs: The Minister for Foreign Affairs will be under the control of the Prime Minister. Foreign affairs are normally a function of the State. Will the Ambassadors and High Commissioners represent the state or government in foreign countries?
CHAPTER 13 - THE JUDICIARY
Article 203 seeks to establish a Constitutional Court. We propose that Article 203 be deleted and the jurisdiction spread over other courts with the Supreme Court having the final say on constitutional matters.
Article 208(b) provides for Kadhi's Courts as a subordinate court. We propose that clause (b) be deleted and the following words inserted: "religious courts".
Article 209 provides for the establishment of Kadhi's courts. The article contradicts Article 10 that guarantees that all religions are equal. We propose that Article 209 be deleted entirely. The Kadhi's Court Act, Chapter 11 of the Laws of Kenya, adequately provides for them.
CHAPTER FOURTEEN - DEVOLVED GOVERNMENT
Article 222 (1) (c) provides for minorities. We propose that the definition of 'minorities' be provided for under Article 311.
The current arrangement where every Ministry delivers services to the people at the grassroots level is expensive, corrupt unaccountable and unwieldy. Kenya therefore requires a system that devolves powers to the local level. We therefore appreciate the provisions in Chapter 14 subject to the following changes:
Article 215 to Article 220 provide for the operation of the devolved governments. In our opinion, the regional governments are very elaborate but have not been allocated significant roles. In this regard, we propose that the Articles 215 to 220 be deleted so that the county becomes the primary devolution unit.
Article 232(2) provides for conflict of laws and allows in some instances the laws of the devolved governments to supersede the national laws. To avoid instances of conflict between laws made by various levels of government, the draft must clearly provide that national laws shall prevail over county laws.
We therefore propose that Article 232(2) to (8) be deleted and replaced with the following new clause:
(2) "Subject to Article 2(4), national laws shall prevail over county legislation"
CHAPTER FIFTEEN - PUBLIC FINANCE
Article 253 (1) provides for borrowing by government. It is important to provide for the limits of this power and peg it to the GDP or annual ordinary revenue.
FIRST SCHEDULE
The 1st Schedule provides for regions and counties that will form the devolved governments. We propose that regional governments be removed since they have no significant roles assigned to them by the draft. They are therefore redundant and will only complicate governance at the county levels. We propose that the primary devolved unit be the 46 districts which are provided for under the First and Second Schedule of the Districts and Provinces Act No 5 of 1992 delineated as follows:
Province Counties No
Central Kiambu, Kirinyaga, Murang'a, Nyandarua, Nyeri 5
Rift Valley Baringo, Bomet, Elgeyo Marakwet, Kajiado, Kericho, Laikipia, Nakuru, Nandi, Narok, Samburu, Transnzoia, Turkana, Uasin-Gishu, West Pokot 14
Eastern Embu, Isiolo, Kitui, Machakos, Makueni, Marsabit, Meru, Tharaka-Nithi 8
North Eastern Garissa, Mandera, Wajir 3
Nyanza Homabay, Kisii Central, Kisumu, Migori, Nyamira, Siaya 6
Western Bungoma, Busia, Kakamega, Vihiga 4
Coast Kilifi, Kwale, Lamu, Mombasa, Taita Taveta, Tana River 6
TOTAL COUNTIES 46
Nairobi should be called the Nairobi Metropolitan as defined in the First Schedule of the Districts and Provinces Act No 5 of 1992. All other districts in Kenya were declared illegal by the High Court of Kenya.
FOURTH SCHEDULE
(Art 228(1))
Part 3, section 12 provides that the county government shall have the function of police. In view of the highly polarised and ethnic divide that obtains in Kenya, this may pose a threat to national security. The counties may turn their police force into militia that could be used not only to carry out tribal conflicts but also carry out such operations across counties. We therefore propose that section 12 be deleted and a new section inserted to read as follows:
12 "fire fighting services and disaster management"
SEVENTH SCHEDULE
(Article 312);
Section 7(4) provides that the names and boundaries of the county shall correspond to those that were in place as at 15th March 2007. We propose that Section 7(4) be deleted and replaced with the following new clause:
"As at the effective date, the names and boundaries of the counties specified in the First Schedule shall correspond with the names and boundaries of the districts as provided for in the Second Schedule of the Districts and Provinces Act No 5 of 1992".
SECTIONS 15 - 17
The provisions for the vetting of the judiciary under sections 15 - 17 should be deleted since it this is not necessary at the moment. The vetting of the judiciary can be done after the constitution is adopted.
Signed on this 3rd day of December 2009 at Jumuia Conference and Country Home, Limuru.
Rev. Dr. Charles Kibicho
Chairman
Rev. Canon Peter Karanja
General Secretary
Last Updated ( Tuesday, 15 December 2009 18:08 )
