Kenya’s new Constitution has radically changed the structure of government and enhanced the participation of Kenyans in the running of public affairs. The new laws take full effect after the 2013 General Election.
Kenya became independent in 1963. President Mwai Kibaki, the third Head of State and Government since then, ends his two five year-year terms after the March 2013 General Election, the first under the new Constitution. The nation’s founding President, Mzee Jomo Kenyatta, was in office between 1963 and 1978. His successor, President Daniel arap Moi left office in 2002.
The independence Constitution, negotiated between nationalists and the British government, was repealed and a new one enacted in a referendum on August 4, 2010. The Government spent Sh15 billion on the constitutional review process. The new Constitution has created institutions that have radically changed the structure of government. When the new laws take full effect after the 2013 polls, Kenya will adopt a devolved system with an elected President, county government, county assemblies, governors and senators. The Executive and the Legislature will be separated, where members of the Cabinet will no longer be Members of Parliament.
Power is exercised through three main organs: The Executive, Legislature and Judiciary. In the old Constitution, the Legislature, which makes laws, had members of the Executive – the President, the Vice-President, the Prime Minister, Cabinet ministers, assistant ministers and the Attorney-General.
The National Accord and Reconciliation Act of 2008 gave birth to the Grand Coalition Government formed by the two dominant parties in the 2007 disputed polls – the Party of National Unity (PNU) Coalition and the Orange Democratic Movement (ODM). The Accord created the position of Prime Minister, the leader of the party with a majority in Parliament, and two deputies from each side of the Coalition partners.
In the new Constitution (Section 129-158), the executive comprises the President, the Deputy President and the Cabinet and shall reflect the regional and ethnic diversity of Kenya.The office of the Vice-President has been renamed Deputy President, while the PM’s and assistant ministers’ positions have been scrapped. Cabinet Ministers will be called Cabinet Secretaries.
In the new Constitution, like in the old, the President remains the Head of State and Government and exercises executive authority with the help of the Deputy President and Cabinet Secretaries. The President is also the Commander-in-Chief of the Kenya Defence Forces and the chairperson of the National Security Council. The President – as a symbol of national unity – shall hold no other State or public office.
Functions of the President
Like in the old Constitution, the Presi- dent shall address the first session of a newly-elected Parliament. But unlike in the past, he/she must make a speech at a special session of Parliament once a year and has the option to address Parliament whenever the need arises. The country’s chief executive will, once every year, report, in an address to the nation, progress made in the attainment of national values (as referred to in Article 10 of the new Constitution). Details of such information will be published in the Kenya Gazette.
The Head of State will submit a report for debate to Parliament on the progress made in fulfilling Kenya’s international obligation. The President will nominate and, with the approval of Parliament, appoint Cabinet Secretaries, the Attorney-General, the Secretary to the Cabinet, Principal Secretaries (formerly Permanent Secretaries), high commissioners, ambassadors, and diplomatic and consular representatives.
The President will chair Cabinet meetings, direct and coordinate functions of ministries and Government departments. And, with recommendations of the Public Service Commission, the Head of State has powers to establish offices in the Public Service. The President will receive foreign diplomatic and consular representatives, confer honours, declare a state of emergency; and with the approval of Parliament, declare war.
If petitioned, the Head of State can exercise the power of mercy with the advice of the Advisory Committee by granting free or conditional pardon to a convict, postpone the carrying out of a punishment, substitute a less severe form of punishment; or remit all or part of the punishment. The Advisory Committee on the Power of Mercy will comprise the Attorney-General, the Cabinet Secretary responsible for correctional services and at least five other members, none of whom may be a State officer or in public service.
A decision of the President, in the performance of any function under the Constitution, shall be in writing and shall bear the seal and signature of the President.
Election of the President
The election of the President will be held on the same day as the General Election of Members of Parliament on the second Tuesday in August of every fifth year. If the President-elect dies before assuming office, the Deputy President-elect (who was the President’s running mate in the election) will be sworn in as acting President and a fresh election held within 60 days of the death of the President-elect.
If the Deputy President-elect dies before assuming office, the office of the Deputy President will be declared vacant when the President takes office. If the President-elect and the Deputy President-elect die before assuming office, the Speaker of the National Assembly will act as President and a fresh presidential election conducted within 60 days after the second death.
The swearing in of the President-elect must be in public in the presence of the Chief Justice or, in the absence of the Chief Justice, the Deputy Chief Justice. This will be on the first Tuesday 14 days after the announcement of presidential election results, if no petition has been filed. If a petition has been filed, the swearing in will be seven days after the court declares the election valid.
President’s term of office
The President shall hold office for a term beginning on the swearing in date and ending when another President is elected and sworn in. A President shall not hold office for more than two five- year terms.
Removal of President
A Member of Parliament, supported by at least 25 per cent of all members, may move a motion seeking to investigate the President’s physical or mental capacity to perform the functions of the office. If it is supported by a majority of all the MPs, the Speaker informs the Chief Justice of the resolution within two days.
Within seven days after receiving the notice, the Chief Justice will appoint a tribunal (three persons nominated by the body responsible for regulating the professional practice of doctors, an advocate of the High Court nominated by the body which regulates the practice of advocates and one person nominated by the President). If the Chief Justice is unable to appoint a tribunal, the Deputy Chief Justice does so.
The tribunal inquires into the matter and, within 14 days of the appointment, reports to the Chief Justice and to the Speaker of the National Assembly. The report of the tribunal is then tabled in Parliament for debate within seven days.
The report of the tribunal is final and not subject to appeal. If the tribunal reports that the President is capable of performing the functions of the office, the Speaker informs Parliament. If the tribunal reports that the President is incapable, Parliament votes and if the majority of all MPs ratify it, the President ceases to hold office.
To remove the President by impeachment, an MP, supported by at least a third of all the members, may move a motion on the grounds that the President has violated the Constitution, committed a crime under national or international law or for gross misconduct. If the motion is supported by at least two-thirds of MPs, the Speaker informs his or her Senate counterpart within two days.
Within seven days, the Senate Speaker convenes the Senate to hear charges against the President. The Senate then appoints an 11-member special committee to investigate the matter and report within 10 days whether the allegations have been substantiated. The President has a right to appear before the special committee.
If the allegations have not been substantiated, the matter ends there. But if they are, the Senate votes on the impeachment charges after giving the President an opportunity to be heard. If at least two-thirds of the Senate vote to uphold any impeachment charge, the President ceases to hold office.
Vacancy in the Presidency
This happens if: the President dies, resigns in a letter addressed to the Speaker of the National Assembly, is impeached or removed on the grounds of mental or physical incapacity. When this happens, the Deputy President assumes office of President for the remainder of the term of the President. But if the office of the Deputy President is vacant, the Speaker of the National Assembly acts in that capacity and an election is held within 60 days.
If the Deputy President assumes office in this manner, the person elected shall be deemed to have served a full term as President if, at the date of assuming office, more than two and a half years remained before the next regularly scheduled election under Article 136 (2)(a). If this is not the case, the new holder of the office will not be deemed to have served a full term as President.
Permanent Secretary to OP
Chapter Two of the old Constitution gave the President the power to appoint Permanent Secretaries. But the only Permanent Secretary’s position the Constitution establishes is that of the Office of the President, who is also the Secretary to the Cabinet. In the new Constitution, the administrative arrangements of the Cabinet will be the responsibility of the Secretary to the Cabinet (Article 154).
Today, ministries have Permanent Secretaries. In the new Constitution, however, each Government department will be run by a Principal Secretary (Article 155). These positions will be held by nominees of the President picked from candidates recommended by the Public Service Commission and approved by Parliament.
Currently, the Cabinet consists of the President, Vice-President, Prime Minister, the two deputy Prime Ministers and other ministers. The new Constitution, however, demands that after the next General Election, the Cabinet shall be made up of the President, the Deputy President, the Attorney-General and not less than 14 and not more than 22 Cabinet Secretaries. The President will nominate and, with the approval of Parliament, appoint Cabinet Secretaries who will not be MPs (Article 152(1)).
The Cabinet Secretariat has been in existence since colonial days when it was headed by an Administrative Secretary responsible for taking minutes of the Legislative Council and Legislative Committees. The Administrative Secretary also served as the Estimates Clerk and received, for discussion and printing, the annual budget estimates. When a full Clerk to the Legislative Council was appointed in 1952, the Administrative Secretary’s responsibility was to manage the affairs of the Executive Council and later the Council of Ministers.
This office later evolved into the Cabinet Office, which has 11 departments.
The Secretariat’s functions are:-
- Store and maintain Cabinet documents.
- Prepare the agenda for Cabinet meetings.
- Executive briefs of Cabinet memoranda.
- Monitor Cabinet committee meetings.
- Disseminate Cabinet documents to ministers and permanent secretaries.
- Disseminate Cabinet decisions to ministers.
- Monitor implementation of Cabinet decisions.
Built in 1907 and known as Government House, this was the official residence of the Governor when Kenya was a British colony. But the Governor conducted official functions at the old Provincial Commissioner’s office (now a national monument) next to Nyayo House, Nairobi. After independence, Government House was renamed State House.
Although it remained the official residence of the Head of State, in practice it became an administrative and operational office. It also occasionally provided accommodation to visiting State guests and receptions on national days. This scenario has prevailed and first President Jomo Kenyatta and his successor, President Daniel Moi, preferred a private residence as opposed to living in State House. But President Mwai Kibaki changed the trend and made State House his residence. He has largely worked from there, although he also works from the Office of the President at Harambee House. State House Nairobi stands on a 300-acre property, three kilometres from the city centre. There are other State Houses and Lodges in various parts of the country for the President when on tours.
State Houses are in Mombasa and Nakuru, while Lodges are in Sagana, Eldoret, Kisumu and Kakamega. The accounting officer at State House is the Comptroller of the House.
Office of Public Communications
Its functions are to:-
a) Research on public opinion on