PETITION TO PARLIAMENT

To: National Assembly of Kenya C/O The Clerk, Kenya National Assembly Parliament Buildings P.O Box 41842 - 00100, Nairobi, Kenya Cc: Hon. Samuel Chepkonga, Chairperson, Justice and Legal Affairs Committee
RE: PETITION TO PARLIAMENT UNDER ARTICLES 37 AND 119 OF THE CONSTITUTION, PETITION TO PARLIAMENT (PROCEDURE) ACT AND STANDING ORDERS 219, 223 OF THE NATIONAL ASSEMBLY ON THE CONSTITUTION OF KENYA (AMENDMENT) BILL 2013. WE, the undersigned, Citizens of Kenya, drawn from the 47 counties of Kenya representing various non-governmental, quasi-governmental organizations and individuals wish to state that it is in the public interest that we formally lodge this petition concerning the Constitution of Kenya (Amendment) Bill 2013. We humbly draw the attention of the House to the following: 1. The Constitution of Kenya 2010 reposes all sovereign power in the People of Kenya. 2. That under Article 1 (3) of the Constitution the People of Kenya have delegated power to state organs including national and county assemblies and the judiciary. That delegation is not absolute and can be exercised by the people simultaneously. 3. The Constitution of Kenya adheres to the principle of separation of power. This it does so by creating a legislature, executive and judiciary that are all formally distinct; with distinct functions and independently staffed. This separation not only exits at the national plane but also extends to the county governments. 4. That Article 260 of the constitution provides for the definition of a state officer. The effect of the definition of state officers does not detract from the doctrine of separation of powers as Article 260 retains the requirement of formal distinction of the various arms of government. National and county assemblies and the judiciary are thus distinct in

PETITION TO PARLIAMENT nature and their members are considered state officers on the basis of their establishment 5. The Constitution of Kenya (Amendment Bill) 2013 that was gazetted on 12th July 2013 proposes to amend Article 260 of the Constitution by excluding Members of Parliament, Members of the county assemblies and judges from the definition of state officers. 6. The bill presumes that inclusion in the definition at Article 260 of state officers from all three arms of government is an infringement of the doctrine of separation of powers which compromises their independence. The supposed purpose of the amendment to Article 260 is thus to (I) enhance separation of powers between various arms of government and (ii) strengthen governance. 7. The proposed amendment is an affront to the Constitution and as citizens desirous to achieve good governance and strengthened institutions in Kenya and beyond, we believe the potential impact of that amendment will be a disruption of the existing constitutional nomenclature. 8. That amending Article 260 would usher in impunity as it undermines the values and principles of good governance as provided at Article 10 of the Constitution and binding to all state officers. 9. The amendment further excludes Members of Parliament, Judges and Members of County Assemblies from public scrutiny and accountability under Chapter six of the Constitution. Chapter Six lays the foundation for the cultivation of a governance structure that is grounded on integrity and centered on service to the people by prescribing expectations on state officers while in office. The chapter also creates the Ethics and Anti- Corruption Commission (EACC) which has an oversight authority over all state officers. If passed, the proposed amendment would render the legal and institutional provisions of this chapter redundant. 10. Article 210(3) restricts state officers from tax exemptions on the basis of their position and nature of their work. Amending Article 260 will serve to exempt Members of Parliament, Judges and Members of County Assemblies from tax remittance contrary to the Constitution. 11. That article 260 read together with Article 230 of the Constitution, gives the Salaries and Remuneration Commission (SRC) the power to set and review their salaries of state officers. Amending the definition of a state officer as proposed in the bill would mean that the SRC will have no authority to set and or regulate the salaries of members of

PETITION TO PARLIAMENT parliament, members of the county assemblies and the judiciary reducing it to merely playing an advisory role. Further, the national assembly will be at liberty to determine their remuneration. This is contrary to the spirit of the constitution and the will of the citizens. 12. That an amendment to Article 260 virtually amends other constitutional provisions including Articles 1 (1), 1 (3) on sovereignty of the people, Articles 2(1),(3),(4) on supremacy of the constitution, article 10 on national values and principles of governance and Articles 249 (1) and (2) on objects, authority of commissions and independent offices. 13. That Article 255 of the constitution provides that any amendments touching on the supremacy of the Constitution, sovereignty of the Constitution, national values and independence of commissions can only be approved by citizens through a referendum. Further, Article 256 (2) requires parliament to facilitate public discussions on any bill that seeks to amend the Constitution. These provisions have not been adhered to and majority of Kenyans have not been sufficiently consulted in the articulation of the proposed amendment. 14. The proposed amendment is therefore tantamount to a betrayal of oath of office by Members of Parliament, Judges, and Members of County Assemblies. All state officers were sworn in accordance with the provisions of the Constitution and thus attempts to violate the same Constitution by amending Article 260 will no doubt strip them of their current status. As a consequence, they will have to seek fresh mandate from the people of Kenya.

THAT 15. To the best of our knowledge this matter has been initiated by the National Assembly and has gone through the first reading of the National Assembly. THAT 16. To the best of our knowledge there is no matter before the courts on the unconstitutionality of the Constitution of Kenya (Amendment) Bill 2013. THEREFORE your humble petitioners PRAY that the honorable Parliament of the Republic of Kenya: 17. Initiate a motion to withdraw the Constitution of Kenya (Amendment) Bill 2013

PETITION TO PARLIAMENT 18. Refrains from subverting the Constitution of Kenya 2010 on which the people of Kenya have placed their hopes and aspirations. 19. Refrains from adopting this constitutional amendment as it undermines and erodes the sovereign will of the people of Kenya and the supremacy of the Constitution of Kenya 2010 and therefore an affront. 20. Obeys upholds, protects preserves and defends the Constitution of Kenya as sworn in the oath of office. And your PETITIONER(S) will ever pray. URAIA; Constitution Reform and Education Consortium (CRECO); Katiba Institute; Kenya Human Rights Commission; TI; 4Cs (Add more willing names)

PETITION concerning the Constitution (Amendment) Bill 2013 Name of petitioner Signature/Thumb ............................................................ Impression ............................................................ ................................................ ............................................................

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