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Post by tactician on Aug 10, 2010 18:15:27 GMT 3
Kamale,The legal technicalities are one thing. I have actually not checked to determine whether Miguna's interpretation of the law is right or wrong. I actually wouldn't call any interpretation of the law whether right or wrong a lie. It is just an interpretation. But that is not important. The big story is that we have to deal with reality. If you tell me it is possible to swim in a lake you are right, but I would be foolish to jump into that lake if I do not know how to swim. Yes it is possible to swim in a lake but you have to know how to swim or you are going to drown in there. adongo Adongo, No one is asking you to swim in the lake. Let those who think they can swim and emerge unscathed on the other side try their luck. They owe you nothing. So just let them be. Otherwise if you try to stop them, it just means you are scared that they might actually swim better than you do. |
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Post by adongo23456 on Aug 10, 2010 18:27:09 GMT 3
tactician,
Nobody is stopping them. How can you possibly stop an M.P from raising an issue in parliament. You would have to arrest them and lock them somewhere. Neither you nor me has any such powers.
When Moi changed the constitution in 1982 we told him we will fight it until it sees some dust. He told us to go ahead and here we are scars and all and Moi has seen the dust he was promised, 28 years down the line. Those who want amendments are free to try. They should be ready to be patient may be for a few hundred years give or take a couple of years.
You see these fellas already tried swimming in that lake and couldn't even move one inch from the shore line with all of 70 failed amendments. Now you want them to go start swimming from the middle of the lake. There surely must be better ways to kill folk than that. But yeah, let them swim and drink water at the same time and lets see how far they can go. Shauri zao.
adongo
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Post by politicalmaniac on Aug 10, 2010 19:29:14 GMT 3
AO
Still, from tactician quote of the KATIBA it seems that it is possible to amend the KATIBA!
His position has not been refuted with equal legal evidence, unless I am missing something.
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Post by adongo23456 on Aug 10, 2010 19:54:11 GMT 3
AO Still, from tactician quote of the KATIBA it seems that it is possible to amend the KATIBA! His position has not been refuted with equal legal evidence, unless I am missing something. Of course the katiba can be amended. They just have to follow the law. The whole brouhaha about the timing of the amendment is irrelevant to me. Right now neither side can get any numbers in bunge to generate any amendment. Even more interesting is that nobody has any clue what amendments the amendment society people want. The only detailed one I saw was in the Standard editorial and they obviously didn't know what they were talking about since they were talking about amendments on things like devolution etc. As it is any major amendments will need a new referendum since they can't touch anything on the bill of rights, devolution and many other things without another referendum. So I guess it is the usual Kenyan disease. People get worked up about things for a few days, then realize nothing is happening and they try something else. In fact the No camp that started the amendment talk has gone dead quiet. Now it is just academic debate for entertainment. That is fine with me. adongo |
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Post by kamalet on Aug 10, 2010 20:29:27 GMT 3
...and full cycle we have finally come!
The law does not bar anyone neither does it create a time frame - which is what Miguna asserted and Tactician debunked.
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Post by reporter911 on Aug 10, 2010 20:39:14 GMT 3
Where did Miguna Lie ? Here is the entire chapter on amendments of the Constitution after the referendum
Any amendments to the constitution must follow a guideline mentioned in Article 256 and 257 that means that means Khadi courts or abortion is not mentioned in this said article? I maybe wrong but that is my understanding on amendments
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 referred to 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 shall be 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 specified 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.
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 passes 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 passed 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 specified in Article 255 (1)—
(a) the President shall, before assenting to the Bill, 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.
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 date it was submitted by the Commission, the speaker of the county 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 passed by Parliament if supported by a
majority of the members of each House.
(9) If Parliament passes 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 specified 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 (10).
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
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Post by reporter911 on Aug 10, 2010 21:08:08 GMT 3
ATTEMPTS AT AMENDING THE NEW CONSTITUTION CAN ONLY BE MADE AFTER 2012 ELECTIONS By MIGUNA MIGUNA, AUGUST 8, 2010On August 4th, about 70% of Kenyans voted for the entire new Constitution. They did not vote for a chapter, an article or provision. They did not vote for or against any particular issue. The referendum question was one: it was whether one preferred the new constitution in its entirety or the old one. Kenyans overwhelmingly chose the new and rejected the old. They were not required to identify issues or portions of the new constitution they agreed with or disagreed with. This was not a multiple choice referendum. There were no contentious issues in the new constitution. None was identified, agreed on and isolated, to be addressed later. There was no agreement to “pass it now and amend later;” as the “No” spin doctors are claiming. The law only required ratification of the new constitution by 50% plus one of all voters. When the final draft of the new Constitution was passed by Parliament, it was passed as one organic unit; not in bits and pieces. The rules of the game are simple: at the end of the game, one side wins one hundred percent and one side loses one hundred percent. This time around, the side that won obtained a convincing margin that allowed ratification without any contestation. If those opposed to the new charter received just 51% of the total votes cast, they would have similarly won 100% and the draft would have been rejected. The rules don’t change because of the side that has emerged victorious. Had the “Yes” side lost, they, too, would have been disbarred from seeking “amendments” as a short-cut to ratification. The constitutional review process is like a relay race. The best team wins, not because it has one or two fastest sprinters; it wins because the whole team, working together, performs best – as a team. Without team work, even the best sprinter cannot win a relay race alone; s/he needs the rest of the team. Each member of the team must not just run fast; they must strictly adhere to the rules of the game. If one sprinter has a false start, runs outside his lane or trips other runners, the entire team might be penalized or disqualified. It would not matter that the disqualified team boasts of one or two Olympic champions. The misbehavior of one runner can spoil the chances of the entire team. Similarly, in a democratic contest, both losers and winners are required to adhere to the rules of the game. In the just concluded referendum, it is important to underline the fact that there was no agreement to amend the Constitution immediately after its passage. Nor was there formal acknowledgement by both sides that the draft was faulty and needed amendment. The Constitution itself provides for mechanisms of amendments; none of which require either the President’s or the Prime Minister’s interventions. Amendment by Parliament Article 256 provides that a Bill to amend the Constitution may be introduced in either the National Assembly or the Senate. Thereafter, Parliament shall widely disseminate the Bill and facilitate public discussion about it. After the Bill’s passage by both Houses, the Speakers of the two Houses of Parliament shall jointly submit it to the President for assent and publication, with a certificate confirming its adoption by both Houses. However, if the proposed amendment relates to the supremacy of the Constitution, the territory of Kenya, the sovereignty of the people, the national values and principles of governance, the Bill of Rights, the Presidential term of office, the independence of the judiciary and the commissions and independent offices, the functions of Parliament, the objects, principles and structure of devolved government and the provisions of Chapter sixteen, the President shall not assent to the Bill until the Independent Electoral and Boundaries Commission (IEBC) would have conducted a referendum on the issues within 90 days of the Bill’s passage. If approved by a national referendum, the President shall assent to the Bill within 30 days and cause it to be published. Amendment by popular initiative Article 257 provides that the Constitution may be amended by popular initiative if at least one million registered voters petition through a “general suggestion” or “draft Bill.” Once the IEBC certifies that at least one million registered voters support the initiative, it shall submit the draft Bill to each county assembly for consideration within three months after it is submitted by the IEBC. If approved by the majority of the county assemblies, the Bill will be presented to both Houses for consideration without delay, and if passed by majority members of both Houses, it shall be submitted to the President for assent. Subsequently, it shall be subjected to a referendum. Clearly, those are the only legal and constitutional processes of amendment. If we adhere to the rule of law and respect the supremacy of the people, then we should insist that any contemplated amendments must follow either of the two options. But either option cannot be accessed until the new Constitution has been operationalized and all the new institutions such as the Senate, the National Assembly, the counties and county assemblies are in place. Even the “President” referred to at Arts. 255-257 is not the current holder of that office; it is the one Kenyans will elect in August 2012. In other words, amendments to the new Constitution cannot occur until after the 2012 elections! Anything else would be unconstitutional. Those calling on the President to break or subvert the law ought to realize that the era of the imperial presidency has been buried forever. This article by Miguna simply cannot go unchallenged because he is peddling outright lies. Let's start with the first lie that the katiba cannot be amended cos there is no Senate. The Sixth Schedule i.e. Transitional & Consequential Provisions of the new Katiba provides as follows in Section 11 with regards to 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.So there you have it - the current National Assembly will act on behalf of the Senate until the next general elections. Therefore, Miguna's assertion that we cannot amend the Katiba cos there is no Senate falls flat on its face. Let's go to the second lie that we cannot amend the katiba cos there are no counties or county assemblies. Counties and county assemblies come into the issue of amendment of the new katiba only when proposing amendments via popular initiative as prescribed under article 257. But this is NOT the only way to amend the katiba. The new katiba can be amended through a bill introduced in parliament. This is as prescibed in Article 256 i.e. Amendment by parliamentary initiative. Here, as we saw abover, the present National Assembly would act as both the national assembly and senate. If the amendmen touches on the protected clauses (bill of rights, president's term limits etc) then a referendum is a must. Again - we can see that it is possible to amend the katiba without having the counties and county assemblies in place ie before 2012. Lastly, let me address the most egregious of all of Miguna's lies. ie that "the President referred to at Arts. 255-257 is not the current holder of that office; it is the one Kenyans will elect in August 2012" By so saying, he is implying that once the new katiba is promulgated, there will be no president! So lemme ask Miguna, who exactly is the president that will take the oath of office on the 27th under the new katiba? Miguna Miguna, please stop these lies. I am even ashamed that you were on our YES side for if this is the YES you were voting for, then clearly we were on separate sides. Damn - and we thought impunity was over. Can only be amended following the guidelines articulated in 255,256,257 meaning unless those 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; then go to (5) If a Bill to amend this Constitution proposes an amendment relating to a
matter specified in Article 255 (1)—(a) the President shall, before assenting to the Bill, 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. I don't think it is as simple as the parliament trying to amend the New constitution after majority passing it through a referendum, there are specified guidelines to be followed and to me it seems it would head right to another referendum which Kenyans won't allow! |
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Post by rifema on Aug 11, 2010 16:27:47 GMT 3
[tr][tr]In any referendum people make choices. Kenyans made their choice. The fact that about 3 million Kenyans voted no is practically irrelevant. adongo [/tr][/tr] Adongo, In a democratic system, majority carry the day. But wisdom also requires that a father does not hold stick against a children who refused some basic rules of the home, and totally refuse to have anything to do with them on that basis. 3 million Kenyans who voted no represented 7.5% of the population at an assumed number of 40 million. This works out to be 12 million Kenyans refusing the Katiba. The 17.5% of the 7 million Kenyans who voted for Katiba works out to have an assumed population of 28 million Kenyans accepting. It therefore works out that out of every 3 Kenyans who said No. 7 said Yes. A strong imbalance. But on a representation ratio of 40 million citizens, a wise leader and I repeat WISE, will think critically of how to listen to the 12 million of his "rebellious" citizenry. Am using WISDOM here to connote leaders who work for 50 years ahead. A good example back home is when real Mau Mau went to the bushes to agitate physically for their land. The strong men ignored them. 40 years down the line, we have a big monster who today we refer to as "Vijana Wetu" by administrators who do not want us the 'M' word. Whe |
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Post by mzee on Aug 12, 2010 10:39:41 GMT 3
I find the church demands intriguing to say the least. These fellows after misleading their flock now wants none other than the PM and PORK to lead the way in making amendments to the new constitution. Never mind that NO has its own leaders both inside and outside parliament.  I for one did not hear the PM promising that the he would lead the country in amending the new law immediately it’s enacted. In fact the only thing he said was that Kenyans should support the draft constitution for now because it was good. He further said that those who believe that parts of the document are bad could make amendment after its enactment. So where did the church get this idea that the PM and PORK would lead the NO team in amending the constitution? Is Ruto not the leader of the NO team, an MP and Minister too? Can’t he or any other MP on the NO side bring amendments to the floor of the house? If Ruto were shy to do that, then the church should go ahead and collect one million signatures and force a referendum. We told this guys that history was not on their side and that the country would judge them harshly but they were too clever by half. They did not get it. Now they say that they will use other avenues to force amendments. I will just say bring it on. What a joke!!! |
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Post by politicalmaniac on Aug 12, 2010 11:23:53 GMT 3
mzee
These chaps are wasting my time.
When the mafiya wanted the wako mongrel passed in 05' they said eti - vote conscience.
Now they come and want to impose their failed views on a dcoument 70% have passed and agreed upon.
I dont know if they realize jsut how late and out of step they are.
The baby has been born.
It aint going back to the uterus.
And the babys physical constitution and make up is set by its DNA which cant be altered. Cosmetic surgery can be done but who does it on a baby? Let the baby crawl, walk and run and mature into an adult. If there are physical flaws we can send that adult to a cosmetic surgeon for alteration of the few flaws.
Otherwise as 'Ajimi' Orengo (my friends love to call him Ajimi) said, altering this thing wont be easy.
Pass and adopt it first and let the document be tested, and see how it delivers, before it can be tweaked.
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Post by kamalet on Aug 12, 2010 22:13:37 GMT 3
This is what Miguna's Boss told us after Parliament passed the draft kenyans recently adopted: THE DRAFT CONSTITUTION CANNOT BE AMENDED
Statement by Rt. Hon. Raila Amolo Odinga, Prime Minister of Kenya
RELEASED AT NAIROBI, THIS WEDNESDAY APRIL 7TH, 2010
On Thursday, April 1st, 2010, Parliament unanimously passed the Proposed Constitution without any amendments. This was historic in view of the 150 proposed amendments that MPs had attempted to introduce but which failed to attract the number required for such amendments to be approved by the House. After the KIA retreat, the only place where amendments could legally be made was Parliament. But the MPs were unable to reach consensus and vote for any of the 150 proposed amendments. Parliament’s unanimous adoption of the Draft Constitution was both a loud endorsement and reflective of the popular demand by the people of Kenya that MPs should not mutilate what the people have now adopted as their Constitution. As the Honourable Speaker Kenneth Marende repeatedly reminded MPs during that historic debate, the law is crystal clear: once adopted, the Draft Constitution MUST be handed over to the Attorney General for publication without any amendments or alterations and onward remittal to the people to ratify at a referendum. I understand that the Speaker is delivering the Draft Constitution to the Attorney General today. Once Parliament adopts the Draft Constitution – even by a simple majority – it must be subjected to a referendum. This is because the Constitution belongs to the people of Kenya; not to a few individuals or leaders. Kenyans are aware that no Constitution is perfect, especially a product of protracted and intense negotiations like ours. Imperfect as it maybe, the Draft Constitution is still qualitatively much better than the current Constitution. With its aspirational preamble; progressive bill of rights; reformative chapter on land; transformative devolution and representative clauses; and inspirational transitional clauses; the Draft Constitution will entrench equity, equality, rights and freedoms hitherto dreamed of but unrealized by the people. Whatever deserving amendments we might desire can be made later like the Americans, South Africans and Canadians have done over the years. Kenyans must accept that constitution-making is a process; not an event.Inevitably, some people will find something with which they are happy and something with which they are disappointed. The delicate nature of constitution-making entails that not everyone will be completely satisfied with the Draft Constitution. We can never have a Draft that will please every single one of the 40 million plus Kenyans. Therefore, opening up the document at this late stage for renegotiation will not bring consensus; it will fester confusion and recrimination. Indeed, it might even undermine the entire process. The general wish of the overwhelming majority of Kenyans is reflected in the Draft Constitution. No one should pretend that they are the only ones who can gauge and determine what the country needs. None of us can hold the country at ransom by threatening to shoot down the Draft at the referendum. In view of the foregoing, we wish to state clearly and unequivocally that we support the Draft Constitution the way it is and will strongly campaign for its ratification by Kenyans. We appeal specifically to political, religious and civil society leaders to set aside all disagreements they might have over the Draft Constitution and forge a common front. This is not about political supremacy or the 2012 presidential campaign; it is about the interests of all Kenyans. It is also not about political parties, ethnic groups, religious affiliations or sectarian interests; it is about all of us, together. Each one of us must be ready to give up something for the general good. There is no place for secret deals, conspiracies or mutilations! If we fail to rise up to the occasion, we might not get another chance to bring a new constitutional dispensation to this country. And we cannot and must not do that! The Constitution of Kenya Review Act (2008) set out a clear roadmap for this process. Everyone knows that the stage we have reached does not allow any more drafting or amendments. And since we must adhere to the rule of law and constitutionalism in this country, it is imperative that we adhere strictly to the legal roadmap as set out in the Review Act. Let me be clear: Raila Odinga will not support or be party to an attempt by anyone or any group of people out to derail or mutilate the Draft Constitution! Finally, I urge all Kenyans to support the Draft Constitution at the referendum and vote a resounding YES. Thank you. God bless Kenya. _________________________________________________ RAILA AMOLO ODINGA PRIME MINISTER OF THE REPUBLIC OF KENYA |
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Post by mzee on Aug 12, 2010 23:51:50 GMT 3
Kamale,
We are not saying that the draft can never be amended. It can be, its only the timming of the NO crusaders which is wanting. When RAO said that "Whatever deserving amendments we might desire can be made later like the Americans, South Africans and Canadians have done over the years. Kenyans must accept that constitution-making is a process; not an event", he did not give a time line. He did not say that immediately the document becomes we should go crazy with amendments. So dont try impressing upon us that even the PM is with the NO guys, who wants him to lead the way as far as amendments are concenrned.
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Post by mzee on Aug 12, 2010 23:58:19 GMT 3
mzee These chaps are wasting my time. When the mafiya wanted the wako mongrel passed in 05' they said eti - vote conscience. Now they come and want to impose their failed views on a dcoument 70% have passed and agreed upon. I dont know if they realize jsut how late and out of step they are. The baby has been born. It aint going back to the uterus. And the babys physical constitution and make up is set by its DNA which cant be altered. Cosmetic surgery can be done but who does it on a baby? Let the baby crawl, walk and run and mature into an adult. If there are physical flaws we can send that adult to a cosmetic surgeon for alteration of the few flaws. Otherwise as 'Ajimi' Orengo (my friends love to call him Ajimi) said, altering this thing wont be easy. Pass and adopt it first and let the document be tested, and see how it delivers, before it can be tweaked. The bible bashing goons claim that 2.7 NO million votes should not be ignored. My question is, should 6 million plus votes from the YES side be ignored? |
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Post by kamalet on Aug 13, 2010 9:23:17 GMT 3
Kamale,We are not saying that the draft can never be amended. It can be, its only the timming of the NO crusaders which is wanting. When RAO said that "Whatever deserving amendments we might desire can be made later like the Americans, South Africans and Canadians have done over the years. Kenyans must accept that constitution-making is a process; not an event", he did not give a time line. He did not say that immediately the document becomes we should go crazy with amendments. So dont try impressing upon us that even the PM is with the NO guys, who wants him to lead the way as far as amendments are concenrned. Would it make a difference whether we say ask for amendments to provide for Gay rights in October 2010 or January 2014? The point is that there will be requests for amendments and anyone should be allowed to make application to change these as long as they follow the law! |
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Post by tactician on Aug 13, 2010 10:09:27 GMT 3
Kamale,We are not saying that the draft can never be amended. It can be, its only the timming of the NO crusaders which is wanting. When RAO said that "Whatever deserving amendments we might desire can be made later like the Americans, South Africans and Canadians have done over the years. Kenyans must accept that constitution-making is a process; not an event", he did not give a time line. He did not say that immediately the document becomes we should go crazy with amendments. So dont try impressing upon us that even the PM is with the NO guys, who wants him to lead the way as far as amendments are concenrned. Would it make a difference whether we say ask for amendments to provide for Gay rights in October 2010 or January 2014? The point is that there will be requests for amendments and anyone should be allowed to make application to change these as long as they follow the law! Kamalet, I dunno why this discussion is pestering some people so much. We on the YES side won the referendum and we passed the new katiba. The new katiba allows for immediate amendments. So are we on the YES side so unhappy with immediate amendments yet we passed the katiba which permits them?? Either some people did not read the katiba when we were passing it or somehow misunderstood it. I will say this again for clarity. The new katiba which we passed allows for immediate amendments.
If you are oppossed to immediate amendments, why did you vote for it in the first place? |
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Post by mzee on Aug 13, 2010 11:21:53 GMT 3
Tactician,
There are parts of Katiba that dont allow for immediate ammendment. And again how do you amend something whose effect you have not even felt? How do you know that it is bad.
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Post by tactician on Aug 13, 2010 11:56:02 GMT 3
Tactician, There are parts of Katiba that dont allow for immediate ammendment. And again how do you amend something whose effect you have not even felt? How do you know that it is bad. mzee, Which parts are these that can't be amended immediately? Please show me. The whole katiba is amendable immediately. And we who voted YES knew that before passing it. So we should not blame others for implementing what we passed. |
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Post by Daktari wa makazi on Aug 13, 2010 15:13:14 GMT 3
Tactician, There are parts of Katiba that dont allow for immediate ammendment. And again how do you amend something whose effect you have not even felt? How do you know that it is bad. mzee, Which parts are these that can't be amended immediately? Please show me. The whole katiba is amendable immediately. And we who voted YES knew that before passing it. So we should not blame others for implementing what we passed. I think you are wrong. Miguna was right. The ‘new’ constitution suspends three of its chapters until elections are held. Under Sixth Schedule, Art 262, Transitional and Consequential provisions, Part 1 General, 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 - Representation of the people. (b) Chapter Eight - Legislature (the National Assembly) and (c) Articles 129 to 155 of Chapter Nine – The Executive Under sect 94, the functions of the legislature, here the national Assembly which includes the Parliament and Senate, are given as ‘roles’ and they are six in total. Sect 94 9(3) provides that Parliament may consider and pass amendments to this Constitution, and alter county boundaries as provided for in this Constitution.
It follows the ‘new’ Constitution suspends the Legislature, whose functions include amending the Constitution until elections are held. The ‘new’ constitution cannot therefore be amended, as you claimed, until elections are held. Therefore according to the provisions above, it only elections which will lift that suspension. The current parliament under sect 10 of sixth schedule will continue until its unexpired term. The current parliament under its own structure by an act of parliament incorporated the ‘new’ Constitution using the Constitution Reform Act 2008, through a referendum but it has no mandate thereafter to amend the ‘new’ constitution under that same Act as its, that the Act's, mandate expired the moment the ‘new’ constitution is promulgated. The ‘new’ Constitution provides for NARA to continue operating under sixth Schedule sect 3(2) so there will no power vacuum. The fact that Kibaki will be sworn in does not mean he is a president afresh under the 'new' Constitution but a continuation, as laid down in sect. 12. (1) of the Sixth Schedule. 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, 2008 until the first general elections held under this Constitution, unless they vacate office in terms of the former Constitution and the Accord. |
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Post by tactician on Aug 13, 2010 15:33:41 GMT 3
mzee, Which parts are these that can't be amended immediately? Please show me. The whole katiba is amendable immediately. And we who voted YES knew that before passing it. So we should not blame others for implementing what we passed. I think you are wrong. Miguna was right. The ‘new’ constitution suspends three of its chapters until elections are held. Under Sixth Schedule, Art 262, Transitional and Consequential provisions, Part 1 General, 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 - Representation of the people. (b) Chapter Eight - Legislature (the National Assembly) and (c) Articles 129 to 155 of Chapter Nine – The Executive Under sect 94, the functions of the legislature, here the national Assembly which includes the Parliament and Senate, are given as ‘roles’ and they are six in total. Sect 94 9(3) provides that Parliament may consider and pass amendments to this Constitution, and alter county boundaries as provided for in this Constitution.
It follows the ‘new’ Constitution suspends the Legislature, whose functions include amending the Constitution until elections are held. The ‘new’ constitution cannot therefore be amended, as you claimed, until elections are held. Therefore according to the provisions above, it only elections which will lift that suspension. The current parliament under sect 10 of sixth schedule will continue until its unexpired term. The current parliament under its own structure by an act of parliament incorporated the ‘new’ Constitution using the Constitution Reform Act 2008, through a referendum but it has no mandate thereafter to amend the ‘new’ constitution under that same Act as its, that the Act's, mandate expired the moment the ‘new’ constitution is promulgated. The ‘new’ Constitution provides for NARA to continue operating under sixth Schedule sect 3(2) so there will no power vacuum. The fact that Kibaki will be sworn in does not mean he is a president afresh under the 'new' Constitution but a continuation, as laid down in sect. 12. (1) of the Sixth Schedule. 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, 2008 until the first general elections held under this Constitution, unless they vacate office in terms of the former Constitution and the Accord.Sadik, You raise some interesting point especially on the legislature. Lemme spare some time on this over the weekend and will reply on Monday regarding the same. I can see a contradition to my previous argument. Will post full details then. |
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Post by Daktari wa makazi on Aug 19, 2010 12:37:44 GMT 3
Tactician
O learned brother, where art thou?
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Post by kamalet on Aug 19, 2010 13:11:07 GMT 3
Sadik
Are you suggesting that merely because a provision of the constitution is suspended until something happens that provision itself cannot be amended? Note that the suspension is in the transition clauses rather than the substantive provision of the constitution.
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tom
Junior Member
Posts: 75 
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Post by tom on Aug 19, 2010 13:46:18 GMT 3
Sadik Are you suggesting that merely because a provision of the constitution is suspended until something happens that provision itself cannot be amended? Note that the suspension is in the transition clauses rather than the substantive provision of the constitution. Kamale I do not think that is what Sadik was imputing I think that provision he has highlighted has got something do with transitional matters. We are moving away from the old order and to facilitate that shift there has to be a provision which ensures smooth changer-over. That provision is a like bridge. Now, you cannot commence renovation on the bridge when you are still using it to achieve a certain goal. The goal here being the formulating of the counties and regional governance structures, which we all know cannot be done in a hasty manner, hence the time frame. The county assemblies will need to ratify some of the amendments, but if the implementation of the very counties have been scheduled for, say, December 2011 it becomes impossible to initiate the amendments without violating the law. |
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Post by mzee on Aug 19, 2010 14:48:54 GMT 3
The church has gone astray and is completely leading its members. We should not let the men of cloth try manipulating us into the arms of foreign right wing evangelists. They make me laugh aloud when they assert that “... President Kibaki and Prime Minister Raila Odinga should also fulfill their campaign promise that amendments would be done after the passage of new constitution”. www.nation.co.ke/News/Catholics%20demand%20immediate%20law%20amendments/-/1056/980892/-/item/0/-/1vgqrnz/-/index.htmlWhy don’t they pose the question to William Ruto? Is he not the leader of the yes brigade? Is he not the one who promised them the amendments? RAO and Kibaki were simply saying that those with grievances against the Katiba should follow the right procedure and amend the constitution after its implementation. Why can’t these guys follow the laid down procedures and stop shouting from the mountain tops. These men of cloth who are supposed to be our shepherd have lost us. The bible says:- " So in them is fulfilled the prophecy of Isaiah, which prophecy saith, 'By hearing ye shall hear, and shall not understand, and seeing ye shall see and shall not perceive;
For this people's heart is waxed gross, and their ears are dull of hearing, and their eyes they have closed; lest at any time they should see with their eyes, and hear with their ears, and should understand with their hearts, and should be converted, and I should heal them.'" (Matthew 13:14-15) |
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Post by kamalet on Aug 19, 2010 14:59:57 GMT 3
Sadik Are you suggesting that merely because a provision of the constitution is suspended until something happens that provision itself cannot be amended? Note that the suspension is in the transition clauses rather than the substantive provision of the constitution. Kamale I do not think that is what Sadik was imputing I think that provision he has highlighted has got something do with transitional matters. We are moving away from the old order and to facilitate that shift there has to be a provision which ensures smooth changer-over. That provision is a like bridge. Now, you cannot commence renovation on the bridge when you are still using it to achieve a certain goal. The goal here being the formulating of the counties and regional governance structures, which we all know cannot be done in a hasty manner, hence the time frame. The county assemblies will need to ratify some of the amendments, but if the implementation of the very counties have been scheduled for, say, December 2011 it becomes impossible to initiate the amendments without violating the law. Tom We need to look at the amendments as a process that is provided for in law. You rightly quote the requirement for approval of counties in the amendment to the constitution. But when do we require the input of the counties, it would be only when the amendment is pursuant to a public petition or when the amendment requires a referendum as the 25% rule applicable for counties is required. Unless something is required of the counties which would not be in place prior to the next general elections, I am not persuaded that anything else cannot be amended. |
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Post by abdulmote on Aug 19, 2010 15:41:25 GMT 3
Kamale,
Immediately after the Promulgation of the Constitution Kenyans would henceforth be governed by the same. In saying and whilst it may take time to fully implement the new ‘holy book’ in its entirety, every issue that affects the nation will have to be looked at and ‘pursued’ using the new Constitutional dispensation.
Simply put, where public’s approval may be sought on any matter through their elected or appointed representatives, in a manner that is reflective of the bodies and or organs as stipulated in the new document, the same cannot be satisfied any otherwise unless and until all that is required and presented as given in the people’s Constitution is fully complied with as if there was no transition to be sailed through!
In other words, if the Senates and the Counties are to take responsibilities of its people’s affairs henceforth as desired in the people's Constituion, then only the Senates and the Counties can legitimately do so when they have been fully established as required! Everything else is simply hot air, fart or mbolea tu! Manure!
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