|
**EXCERPT**
CONSTITUTION
OF KENYA REVIEW COMMISSION
(CKRC)
NATIONAL
CONSTITUTIONAL CONFERENCE
(NCC)
VERBATIM
REPORT OF
PLENARY
PROCEEDINGS,
PRESENTATION
AND DEBATE ON THE DRAFT PROVISION ON DEVOLUTION, CULTURE &
AFFIRMATIVE ACTION
HELD AT BOMAS
OF KENYA
ON
16.09.03
VERBATIM
REPORT OF PLENARY PROCEEDINGS, PRESENTATION AND DEBATE ON THE
DRAFT PROVISIONS ON DEVOLUTION, CULTURE AND AFFIRMATIVE ACTION,
HELD AT BOMAS OF KENYA ON 16TH SEPTEMBER 2003
The
meeting was called to order at 9.35 with Prof. Yash Pal Ghai in
Chair.
Prof.
Yash Pal Ghai: We will begin in about a minute. Please
take your seats. The prayers this morning will be said by
Sheikh Ali Shee, Archbishop David Gitari and Mrs. Neera Kapila and
I will now ask you all to stand and I will request Sheikh Ali to
please begin with the prayers. Thank you.
Hon.
Delegate Sheikh Ali Shee: Bismilahi Rahmani Rahim. Kwa
jina la muumbaji wa Mbingu na ardhi na viumbe vyote vinginevyo,
tumesimama mbele yako ee muumbaji tukiwa wanyonge, madhalili mbele
yako, tukitafuta msaada wako. Baba twatoa shukrani zetu
kwako kwa kutupa mema ya uhai na kutuweka katika hali hii.
Tunauliza, tunapoomba kwa unyeyekevu ukarimu wako na baraka zako.
Utubariki sisi wananchi wa nchi hii. Utupe hekima, utupe
uwezo wa kuvumilia na kusubiri na kuendelea na kazi hii ngumu
ambayo tuko nayo. Mola tubariki na ubariki nchi yetu.
Wabariki wananchi wote na wale ambao wako kwenye uongozi, wape
busara na hekima ya kuweza kuongoza taifa hili katika hali iliyo
bora, hali iliyo nzuri zaidi. Ee Mola tunakutegemea wewe
katika kazi zetu zote ambazo tunazifanya. Tubariki na
ubariki watu wetu wote. Nakuomba kwa jina lako, hakuna
mwingine wa kumuomba isipokuwa ni wewe. Tubariki. Amen.
Hon.
Delegate Bishop Gitari: Heavenly Father, we thank you for
this new day, we thank you for giving us the responsibility of
reviewing the Constitution of this Nation. Now Lord we pray
that you may bless our work this day, that we may perform our
duties by being diligent in what we do, by speaking the truth in
love, the willingness to listen to others, so that we can
undertake our responsibilities for our benefit and the benefit of
the Nation and posterity. We pray that you may bless the
people of this Nation. We pray for the President and all those who
are working together with him in running the affairs of this
Nation. At this time, we pray for the police as they search
for the killers of our brother, that you may lead them in a way
that those who have committed this crime will be found and
prosecuted and punished accordingly. We pray that you may
restrain the hands of evil men who do such things, as we sing in
our National Anthem, Justice be our Shield and Defender. We
pray that justice will be shielding and defending every citizen in
this Nation. Now we pray for the Chairman of our Proceedings today
and all those who are going to speak, that this may be another day
we can say we have made progress and as we go to our various tents,
we pray that all those who are going to speak are going to make
the progress of our task brighter so that we may fulfill the task
that we have been given. So be with us this day and bless us
and help us to make progress, in Jesus name we pray. Amen.
Hon.
Delegate Kapila Neera Kent: Oom. Oh Omni present, Heavenly Energy.
We stand together grieved, praying, trying to find answers to the
heinous crime that so cruelly and savagely cut short the life of
one of us. One…….Dr. Mbai. All knower of all mens hearts
and actions, give us the strength and the resolve to
complete this very crucial task for our people. Oh giver and
sustainer of our life, give comfort to the family of Dr. Mbai and
re-energise our resolve to live towards a strong Nation and to
complete very efficiently, this assignment for Kenyas prosperity.
Oom Shanti, Shanti, Shanti, Oom.
Prof.
Yash Pal Ghai: Thank you. I believe we have one Delegate who
needs to be sworn in today. Would he please come in front of
me here and I can administer the Oath. Will you please
repeat after me. After I, say your name and then repeat
after me. I
Hon.
Gichira Kibara: I Gichira Kibara--
Prof Yash
Pal Ghai: Being appointed a Delegate to the National
Constitutional Conference--
Hon.
Gichira Kibara: Being appointed a Delegate to the National
Constitutional Conference--
Prof.
Yash Pal Ghai: Under the Constitution Of Kenya Review
Commission Act--
Hon.
Gichira Kibara: Under the Constitution of Kenya Review
Commission Act--
Prof.
Yash Pal Ghai: Do solemnly swear that I will faithfully and
fully--
Hon.
Gichira Kibara: Do solemnly swear that I will faithfully and
fully--
Prof.
Yash Pal Ghai: Impartially and to the best of my
ability--
Hon.
Gichira Kibara: Impartially and to the best of my ability
Prof.
Yash Pal Ghai: Discharge the task and perform the
functions--
Hon.
Gichira Kibara: Discharge the task and perform the
functions--
Prof.
Yash Pal Ghai: And exercise the powers devolving upon me by virtue
of this appointment--
Hon.
Gichira Kibara: And exercise the powers devolving upon me by
virtue of this appointment--
Prof.
Yash Pal Ghai: Without fear, favour, bias affection ill will
or prejudice--
Hon.
Gichira Kibara: Without fear, favour, bias affection ill
will or prejudice--
Prof.
Yash Pal Ghai: And to the end of the exercise of the functions and
powers as such Delegate--
Hon.
Gichira Kibara: And to the end of the exercise of the
functions and powers as such Delegate--
Prof.
Yash Pal Ghai: I shall at all times be guided by the
National interest--
Hon.
Gichira Kibara: I shall at all times be guided by the
National interest--
Prof.
Yash pal Ghai: So help me God.
Hon.
Gichira Kibara: So help me God.
COMMUNICATION
FROM THE CHAIR
Prof.
Yash Pal Ghai: I welcome you to the Conference and look
forward to your contributions. Honourable Delegates the Steering
Committee met this morning and among the items of business was the
question of the Commission of the Conference contributing to part
of the expenses of the funeral arrangements for the late
Honourable Delegate Dr. Mbai. We will be passing a list and
if you wish to make monetary contribution, please indicate on that
form and we will deduct that amount from your payment this week.
This was the wish of the Steering Committee, a recommendation that
we all make some contribution towards the expenses. Thank
you very much.
The
programme this morning is the Presentation of the Draft Articles
on three topics: Culture, Devolution and Affirmative Action.
You will remember that the Delegates had asked us to do an audit
of the Constitution from the point of view of Culture and
Affirmative Action. On both these matters, the Conference passed
resolutions to strengthen the provisions dealing with these two
topics. The Commission has met several times through its
Task Forces and in the Plenary sessions and has now agreed on the
Draft Articles to be presented to this Conference. The
Conference also in Bomas 1 asked us to revisit a Chapter on
Devolution. We had an interesting and lengthy debate on
Devolution and based on the views expressed by the Delegates, a
Task Force of the Commission met over several meetings and has now
prepared a Draft Chapter.
We have
already earlier in this round of Bomas, presented the Report of
the Commission on Culture and Devolution. What we are going
to present to you today, are the actual Articles which are
based on this Report plus your comments, when we debated our
Reports on these two topics. We have also met to discuss
Affirmative Action and we have both the report which will be
available shortly as well as Draft Articles which I am sure you
picked up as you entered this room. We should begin with
Culture and then go to Affirmative Action and then thirdly we will
take Devolution. Devolution of course is very important but
the documents are still being printed and may not be available
till about 10.30.
So if we
can start with Culture and go on to Affirmative Action, by that
time the documents will be available. So I want to call upon
Commissioner Kavetsa Adagala to present the Draft on Culture.
Thank you.
REPORT
ON AD HOC COMMITTEE ON CULTURE
Session
Chair: - Prof. Yash Pal Ghai
Presenters:
- Com. Kavetsa Adagala
- Prof.
Wangari Maathai
Com.
Kavetsa Adagala: Thank you very much Chairman, fellow
Delegates, you will recall that we presented the Report of the
Task Force on Culture and today we are presenting the Draft
Articles on Culture. I am happy that you have copies, it
means we can go a bit faster but just as a reminder, I would like
to say that essentially the Draft Report on Culture had several
recommendations, if we put them together. It recommended a
recognition of Culture in the Draft, preferably in a Chapter.
It also recommended that the Bill of Rights be seen together with
the Cultural Rights or peoples Rights. It recommended also
the main streaming of Culture in all the Chapters which has been
done partially in the main Draft but people felt there needed to
be more enhancement and more articulation of this mainstreaming of
Culture.
Lastly,
the last two recommendations were on Approaches to Globalization
and a Multicultural Vision of our Constitution and our society.
So in that sense, we are really now just going to look at the
Draft Articles in order to see whether they reflect what-- you
will discuss and decide if this is what you want to see, whether
less or more and let us know. There is an Ad hoc Committee
on Culture which has been very anxious to work, unfortunately we
had to wait--well not unfortunately, but we had to wait for the
other Drafts to be ready so that they are presented together and I
want to express my sympathy to them, because they really have been
anxious and a bit frustrated over not being able to start their
work.
If you
look at your Draft there, you will see to appear as part of
Chapter 3. Chapter 3 is National Goals Values and Principles
and here Chapter 1, Chapter 2, Chapter 3 is the Constitutive
process, so if we are recommending here as a Commission that the
Articles on Culture appear as part of Chapter 3, we are
recommending that they be part of the Constitutive process.
That is as we are Constituting Kenya, as we are deciding what
Kenya would be and what direction it would take, the Culture
Articles would be there. Chapter 3, ends at Article 14, so
the Cultural part begins with Article 15. Then we have there,
it will be sub titled Cultural Values and Principles. When
we went around, people told us probably the most universal
recommendation, was that there should a promotion, protection,
reclaiming, preservation and development of Culture and this is
what we have in this particular section. So, you will hear a
lot of promote, protect, develop and preserve and this is what we
were asked. I think in this case we are really living up to
the views of Kenyans, because when we went back to our database,
we found a lot as we told you in the Report--we found a lot of
views on Culture and they were just about these. When I am
presenting this, when we are talking about preserving and
protecting and promoting, please remember that this goes in tandem,
it goes hand in hand with the Bill of Rights, so that we are doing
away--the proposal is to do away--already it is been done in Bill
of Rights to do away with the harmful, the negative and the
discriminative aspects of Culture. So I hope that we
shall not be going into that in our discussion but instead as we
leave with the Draft Report, move forward. Okay.
Article
15(1) says that all organs of the Republic and the People of Kenya
shall, work towards the promotion of National Unity peace and
stability to develop the spirit of Nationhood. This idea of
unity was very strong and that is why we have put it there at the
top and we see that is something which is achievable particularly
if we look at it in terms of multicultural interaction between the
various peoples of Kenya the diverse people of Kenya.
15(B)
recognizes that diversity of the people of Kenya, their culture,
custom, traditions, beliefs, languages and religion, again minus
the retrogressive aspects and the negative discriminative and
harmful. Here we have a realization--we have itemized some
of the aspects, which got to make Culture. If we started
defining Culture and enumerating, it will be a very, very long
list but these is are the major components which make Culture as a
way of life.
15 (C) we
see this again as part of that multicultural vision so that they
see cooperation, understanding, appreciation, tolerance and
respect for each others Culture. Again, customs, traditions,
beliefs, languages and religions. Again here what we are
really seeing is promoting a forward looking kind of Culture.
15 (D) we
have the protect, preserve, revitalize and I think revitalize is
important because many people feel that quite a bit of our Culture
has been left to lie dormant, from what developed and incorporate
into aspects of life, again enumerated there. Those aspects
which enhance the dignity and well being of the people of Kenya.
This goes hand in hand with the dignity and well being. Well
being is in the Review Act that we are to do-- all that we do in
this Constitutional Review Process is supposed to be for the well
being of Kenyans and dignity definitely there, so that all Kenyans
can live a dignified life.
15(E) we
have emphasized the development, preservation, promote and
enrichment and transmission of languages of Kenya, all the
languages of Kenya. So, there it is that whether in
Legislation or in a programme, there will be steps which will be
taken to achieve this particular Article.
15 (F)
respect, preserve, protect and promote:- Article (1) Cultural,
historical, religious, sacred, and archeological and other
sites of importance. This protection and preservation of
physical sites particularly physical sites is crucial to Cultural
preservation and comes up many times in international instruments,
especially those of UNESCO. Archeological, particularly for us, we
need to do this because we are really - at least for the time
being the pride of human kind and it seems as if people come and
go as they please and we are not really protecting these sites.
There are many Cultural sites which need protection. Many of
you every where you go, you have Cultural sites which need
protection. We were in Laikipia and we were shown a Cultural site
which - a very big field which had been sold and sub divided
and title deeds given out and only that the people who took the
title deeds were a bit afraid to come and take it up but
those kinds of sites need to be protected, particularly from
privatization and destruction. Then generally the other
Cultural heritage of Kenya and you know as we said we can go
enumerating on and on but all this happens. I would like to
say that many people are saying it is impossible to preserve
the Culture of Kenya, because how do you preserve the Culture of
every person. But as you can see, in 1 (E) for instance if
we talk about the languages, then it is all the languages and
people preserve their own languages and as we see the young
generation nowadays know two or three different Kenyan languages,
so again that is the multi-cultural aspect coming out, so it is
not really in a purist kind of way or in a separatist kind of way
but as we live and develop these languages and as we interact, we
develop them.
Article
(2) This is for the organs of the Republic which shall
safeguard, respect Cultural linguistic and religious associations,
organization or institutions, the objects of which are not
inconsistent with this Constitution. All the time there has
to be that limitation, because we cannot go back again to the 19th
Century and some other Century for those aspects of Culture which
no longer really apply or support our present level of development
or future level of development. We appreciate B, a Cultural
and religious day celebrated by various communities. A lot
of communities said they wanted each community to have a Cultural
day and also there are other Cultural days which they observe and
that one needs to come up. So you see, here is a two way
street where the community has to state their days but the State
shall appreciate those Cultural days.
Also from
2(c) Promote and expand cultural exchange programmes and
corporation within and outside the Country in order to enhance an
publicize the Cultural heritage of Kenya. For instance,
Kenyan Missions abroad I think now we do not have a Cultural
attaché, we do not have a press attaché and we need these so
that we can promote our Culture abroad, so that we bring to the
Global Culture also our own Culture. Also there needs to be
the exchange programme but a little bit of reciprocation also,
because we find ourselves taking on other peoples culture and they
do not take on ours and therefore it is unequal. And this
principle of equality of all Cultures applies not only Nationally
and locally but also Internationally. The Cultures should be
equal.
Then the
formation-- involve the people--again we get this is participation
of the population in the formation and implementation of Cultural
or linguistic development plans to ensure Cultural sustainability.
Such a development was what people asked for, District
Cultural centers and also kinds of linguistic developments and
cultural developments but they need to be some where. We
shall talk about that a little bit later.
Then (E)
is to ensure that the relevant communities enjoy and wear personal
benefits from their historical, religious, sacred and
archeological sites as well as other Cultural heritage. Now
that is the major part and I think in this Drafts we have
fulfilled and taken on board the views of Kenyans to promote,
protect and develop.
If we go
to 16, there is one on educational values and principles.
Education as you all know, is a transmitter of values and cultural
values. So, here we are seeing that in education, there
should be that development of the people in the communication,
transmission and development of their Culture. Some other
Articles usually add patriotism but we did not put that it has its
own problems - so that we can maintain an educational policy that
enhances Culture and Cultural values.
16(2) The
State-- again the State here, because some of these things can
only be done by the State, like if you are saying District
Cultural Centers, you can only do them really with the State.
Because if anybody sets up their own, it is still an NGO or a
personal one or not at the level of the State and since there is
the proposal on Devolution, you can imagine that this would be
very important.
2 (a)
Take appropriate measures to afford every Kenyan equal opportunity
to attain the highest education standard as possible, that was
already there, it is a little bit enhanced there, It is
already in the Draft. Take necessary measures to design and
develop an educational system that will nurture and emphasize
creativity, acquisition of knowledge, talent, development,
innovations, cultural values through formal and informal means and
this could also easily take into consideration our Cultural
experts who are in the villages and in the Districts and even at
the national level, who can also participate in this Cultural
Programme. I think this was tried out with music and with
oral literature but again funding became a problem.
17 is
that we recognize the scientific, technological and intellectual
inventions and here we are talking not only about modern science
and technology but also there as you can see in (1), indigenous
knowledge and the intellectual creativity in the Development of
the Nation. We have had problems here that indigenous
knowledge is not usually taken on but here we have put it and when
we say indigenous knowledge, it is a traditional knowledge and
also local modern knowledge. So, that covers that particular
sphere. Intellectual creativity needs a lot of enhancing, in
fact in education it has been said that the educational system has
left out that creativity is the missing dimension. So here
we have included it.
17 (2)
The State shall support, promote and protect Kenyas appropriate
and self reliance scientific and technological inventions as well
as intellectual innovations and their application to the
development of the people of Kenya. That appropriate and
self reliance is very important especially in terms of
Globalization. We need to see what it is we can take from
the Global Culture or the dominant global cultures but also look
at our own for self-reliance and appropriateness.
(B) Give
priority, support and protection to research, invention,
innovation and their utilization. Again there the promotion
of research - very important, inventions I think you will remember
there is even some one who invented an aero plane somewhere in
Nyeri, I think and all kinds of inventions which take place and
including the famous story of the kiondo which has been
patented, I think in Japan or Thailand and being factory
manufactured and yet we do not do any protection of this. So
we need to support our own inventions
17 (C)
This formulates and implements a national policy on science and
technology, so as to endeavor to develop modern science and
technology and other various branches of science and
scientific technological theories to support the formation of
policies. These kinds of policies are very important but
they are more important and they are more enforceable when it says
so in the Constitution. And lastly there on science support,
promote, develop and protect indigenous intellectual scientific
and technological inventions and innovations. So there is
the support and protect, to combine modern and traditional
practices. To create viable conditions of living for the
people, it is not for its own sake but for the well being of the
people.
Article
18 talks about the protection of indigenous and intellectual
rights and there is the support, promote and protect indigenous
literature, art, oral traditions, performing arts and other
intangible Cultural heritage as well as the intellectual property
rights for the people of Kenya. That word intangible there,
is used a lot especially in UNESCO documents. That is the
material Culture which we have talked about and there is--so there
is tangible and intangible, the words you speak or the songs you
sing, that is intangible. That it can change, unless you preserve
it in a way and it becomes something that may not be
so permanent.
Then 19
talks of establishment of the National Council--it should be the
National Council for the promotion and protection of Culture, as
it is there in 19 (1) That is the full title of Culture and art.
So, that Council is established, is proposed to be established and
it goes along the same lines as the Commissions and in fact it
says there in Sub-Article 4, the provision dealing with the
Constitutional Commission shall apply to the Council as if it were
a Commission.
Then 5
are the functions of the Council. Again you will see a lot of
promote, develop, identify, preserve, protect, I think you can
read for yourselves there now and we have about seven Articles,
all on Cultural values, on historical monuments and Cultural sites,
on identifying--well developing the cultural identity of Kenya and
then promotes the investment in Kenyas Cultural industry.
This is particularly important because, in other parts of the
world and in fact globally, cultural industry makes up one third
of the income of the world and in some countries it is even more,
because they have preserved their monuments, they have put them on
sites, like Lamu now is protected by UNESCO. So, you need
that kind of industry to develop, so that we can develop even
factories that make our work of cottage industries that develop
our cultural and material culture and the intangible one also.
The languages are there to be promoted and developed.
Kiswahili, other indigenous languages, Sign language and Braille.
I think many people ask for indigenous languages to be developed,
because we have kind of put them by the wayside. So there is that
we promote.
Then
again the technological and scientific studies, which enhance
cultural values, these also have to be promoted and then carry out
other activities, of course other activities is very large.
Cultural inventions and innovations or Cultural activities, which
are of social and economic value, should be added there, which are
social and economic values. So that is really that section
which goes into that Chapter on National Values, Goals and
Principles.
Other
Provisions are in the Laws of Kenya and it has a new Clause, if
you remember the Laws of Kenya is where the Constitution comes
first and then there is added a new Clause: Parliament shall
within two years of coming into force of the Constitution by an
Act of Parliament, enact a law for the codification and systematic
development of customary laws. We need to come out with a
common law--we just do not talk of common law and then it means
British or English common law but here if we can start working on
our own, it would be most useful.
Article
14: This is now the Article 14, of the National Goals,
Values and principles, Clause 2 and 3 are to be deleted and will
be included in the Article dealing with Culture.
Article
15 is amended to read as follows;- The Republic shall eliminate
disparities in development between regions of the Country and
sectors of society and manage national resources fairly and
efficiently for the welfare of the people. Again it is for the
welfare of the people and again here the Regional element has come
in, the different sectors in society, the different population
groups, that is really what it means and perhaps that relates to
Devolution also.
National
days which is Article 13 in the main Draft has a new Clause too;
Parliament shall enact a law providing for the declaration of
National days and of other Public holidays.
Article
38 on the family, we have amended to allow marriages between
opposite sex only, because(laughter and clapping) this is what we
were asked for and I think in the amendment it reads marriage
between woman and man.
3 (A).
There is the right to marry a person of the opposite sex based on
the free consent of the parties and it goes on ……… to found
a family. So, that correction has been put there in line
with our cultural values.
Article
63 (a); Culture and language. We have here the rights of everyone
as you know this is the Bill of Rights, so we have the rights of
everyone to culture and to use language. They have a
right to their Culture or to Culture in general and use of
the language and participate in a cultural life of their own
choice. Again the matter of choice is here, this is the Bill
of Rights, choice is very much there but no one excising their
rights may do so in a manner inconsistent with any provision of
the Bill of Rights. So that we have put there, although
still the question of peoples rights comes up in the sense that
even if it is out for debate perhaps, if you have a right to that
culture, that culture must be developed on a larger scale than the
individual choice. A new clause 5 in Article 63 (a) reads
for the purposes of this Article and subject to other Articles of
the Constitution, a right to culture includes the right to
practice, maintain, develop, preserve, protect, restitute and to
hold and have access to cultural property and generally enjoy the
culture to which that person belongs. That is a case there
but as you know also particularly the young generation belongs to
two cultures, sometimes even four Cultures or three Cultures, so
that also brings in the element of multiculturalism as we are
discussing these.
I must
say that it was not an easy task to Draft these Articles and I
want to thank our Drafts Person Miss. Ndaula from Uganda and
particularly on the aspects of promoting, she has done very well
promoting and protecting but I must say that, although sometimes I
sensed a resistance or we sensed the Task Force sensed a
resistance to more exposition of Culture or expansion of Culture
in the Draft, we might be pioneers in this way, that we do have a
Draft that deals with Culture in a comprehensive way, both in this
Articles of promoting and protection and developing and also in
mainstreaming. Now, if I can comment on the mainstreaming
Culture, all the way from the Preamble, I suppose this will be the
work of the Technical Committee that will be dealing with Culture.
Like we have done with other Constitutive issues here, we will
mainstream them across, so that all the way from the Preamble,
every Technical Committee where we are there, we should be able to
infuse Culture. But I think the Ad hoc Committee also can
work on this so that we have Culture all across the Draft
Constitution. For instance on the elderly, we have a very good
provision but I think also it is important when we were discussing
that we preserve our way of taking care of the elderly. So
that as many people have said, we do not want the elderly to be in
homes, so it is up to the family, the extended family, the clan
which is called in the Nigerian Constitution Traditional
Associations and the State to take care of the elderly, not
as a burden but as people who have made a contribution and also as
people who have invaluable knowledge to pass on what we call
intergenerational knowledge and skills. In the case of
children, there were quite a bit of complains that we were not
doing this very well and it came out that what was needed there is
that, there should be guidance from parents or guardians. So
that one can be easily worked into to reflect what we need.
As a guide, the African Union of charter of Human and Peoples
rights can lead on several levels and we can also add ourselves as
we see and so long as it is not in consistent with the Bill of
rights and in consistent with other aspects of culture. As
you know part of the law is African Customary Law, Islamic and
Hindu. This is our backbone in the law so we need to work on
that and make sure that it is reflected through out. So even
in the Judiciary it is there, in land it is there, and throughout.
It is the responsibility of every Delegate to make sure that our
Constitution is home grown by including our culture in it. I
think this is what is going to give it a distinctive Kenyan
identity this cultural aspect. Then the Constitution will be
ours, it will be home grown and indigenous. Thank you very much. (Clapping).
Prof.
Yash Pal Ghai: Thank you very much indeed. I do not
know how we should conduct the debate. This gap
actually reflects the recommendation if I can use the term that
the Delegates made in our general debate on Culture. I do
not believe there will be that much value in us debating it again,
because what we have tried to do is to capture your views.
May be we could spend a few minutes to see if we have left
something out that you would like to see reflected but I do not
think we should have a very wide range in debate because this is
really responding to what we have already said. Delegate
484?
Hon.
Delegate Wangari Maathai: Thank you very much Mr. Chairman.
I want to first thank the Secretariat, the Commissioners, and the
Drafters for having provided us with both the report and the Draft
so that we can start our work of this Committee. I would
like to remind the Honourable Delegates of the history of this
effort of trying to entrench our culture in to the constitution.
And the fact that we were trying to bring in into our Constitution
a subject that was left out in 1963 as our Veterans such Hon.
Martin Shikuku has reminded us that, there was no time, but, I am
glad that we have made time at this Conference. Mr.
Chairman, the most important thing and I wanted to speak at the
onset so that the Delegates can express this as they contribute,
is that, we are an Ad Hoc Committee and we have been trying to say
that we should be a full Pledged Technical Committee and during
the last time our discussion when we were making our major
contribution towards the subject my recollection tells me that
this Conference did actually recommend that we become a Technical
Committee. We need to have that endorsed at this Forum, so
that we know whether we know we continue working as a Technical
Committee, as an Ad Hoc Committee or a full pledged Committee.
As it is here recommended the Commissioner mentioned that, it is
being recommended that this subject be incorporated in Chapter 3.
Chapter 3 is part of Technical Committee A, so when this is
incorporate there, do we therefore dissolve ourselves as a Ad Hoc
Committee and join the members of the first Technical Committee or
do we take Chapter 3 and withdraw it from first Technical
Committee and change the title of that Chapter into National
Culture so that, we now work with that Chapter as the 13th
Technical Committee but addressing ourselves to the Culture.
Mr. Chairman I think is very important it is a decision that this
Conference must make and I would like to encourage the Delegates
as you speak please give us guidance give the Conference guidance
so that, we can resolve that issue. I personally have my own
preferences; I do think that in order for us to be able to make a
good contribution, we need to work full pledged in the Technical
Committee. At the moment we are all distributed in the other
Committees, I am in the Committee on Land Rights and the
Environment if it is incorporated in to another Technical
Committee, I have to make that decision and since we do not have
much time and there is a lot of work to be done we do need to
start this work seriously on the Culture. That is what I
wanted to say Mr. Chairman, I do thank you Delegates for giving us
guidance. Thank you very much.
Prof.
Yash Pal Ghai: 296 and then 242 then I will move this way.
Hon.
Delegate Stanilow Kasoka: Mr. Chairman I am Stanslows
Wambua Kasoka, a district Delegate. On my feeling Mr.
Chairman I say, since Culture is a very important Chapter and
aspect in our society, I do recommend that we pledge the Ad Hoc
Committee on Culture as a full pledged Committee to deal and dig
out on our Cultures. If we have it as part of Chapter 3,
they will have no time to dig out and come out with what actually
Kenya is and what we wanted to talk on about Culture.
Because, there are a lot to things left here, there are quite a
lot cultural debates to dig in all our tribes, because, actually
Kenya is composed of more than 40 tribes, so I recommend that we
have a 13th Committee on Culture.
Prof.
Yash Pal Ghai: Thank you, Delegate 242 have the flow please.
Take the mic.
Hon.
Delegate Abdulrahman Badawy: Thank you Mr. Chairman.
My name is Abdulrahman Badawy and I have tried to use the number
of my neighbour because I have left my number at home. My
number is 238. First of all, I wish to point out here that
we have to understand that everybody in every district has to
preserve his own Culture as a result and because we are devolving
everything so we have got to devolve the Culture as well and it
has to be district council for promotion and protection of Culture.
Otherwise, if we shall have national council for promotion and
protection of Culture, so many cultures will have to be left
behind and we shall have a lot of problems.
Secondly,
we mentioned when we made contributions last time about Culture
that when the Delegation went to Britain Lancaster House for
independence, a lot was left behind about Culture. It has
been proven that we are having 42 tribes in Kenya but, truly
speaking we are having a lot of tribes that have not been shown in
the Constitution, so, we will request that the tribes should also
be recognized and we should present the list of tribes that are to
be inserted in the appendix of the Constitution. Thank you
Mr. Chairman.
Prof.
Yash Pal Ghai: Thank you. 522?
Hon.
Delegate David Gitari: My name is David Gitari, No. 522.
Mr. Chairman I want to thank the work which has been done by this
group and I think they captured well what we said during the
debate but, I am still concerned about the words; Protect,
Preserve, Promote. Especially in view of those aspects of
our Culture which are dehumanizing. Though this has been
captured in 1(d), I think there should be a very clear Clause
admitting that some of our Cultures are bad and they cannot be
preserved, promoted or protected, examples are; Female Genital
Mutilation, wife inheritance, and so on and I understand that the
Maasai with apologies incase I make a mistake say that all the
cows in the world belong to Maasai. And therefore rustling
is not theft, surely you cannot protect and preserve that kind of
feeling. Again we have seen during the past week a bit of
Culture of the Bukusu some of it was very good but when the clan
gathered to share the estate of the late, I think it was something
that ought to be abandoned in favour of widows. And so I think we
need a Clause, very clear Clause condemning some of our Cultures,
because, we are created in Gods image, most of our Culture is full
of beauty because your foreign some of it is demonic. And I
would like to see a very clear statement saying that we condemn or
we cannot protect certain aspects of Culture. Thank you Mr.
Chairman.(Clapping)
Prof. Yash Pal Ghai:
Thank you. 605.
Hon.
Delegate Ngorongo Makanga: Mr. Chairman, when I look at this
Chapter, I think it is a very very important Chapter, na waswahili
wanasemamkosa mila ni mtumwa. If we cannot create a
Technical Committee on Culture, then we as Delegates we shall not
have helped this Country, to help this Country we must create a
Technical Committee on Culture, and we must see Culture from the
village up to the national level. That is why myself I
recommended we must have a house of national wisdom where every
Community in this Country no matter how small or how big will be
represented. The Problem is, even when I found that we were
going to make a national council on Culture, I do not see how
every single community is going to be represented in that
preparation. If we are going to manage to put people may
from one or two communities, every single community is important
and we also must make sure that, in Parliament every single
community will be represented, it is very important. When I
look at house of national wisdom, I look at it as an area where
all communities are represented, as a library of our cultural
values as a continuation of our culture from the village to the
region and then to the central government. I look at it also
extending outside the boundaries, where we have cultural attaché
where their reference point will be coming from the house of
national wisdom, where the communities will be represented.
I look at it also as setting the pace in terms of education,
because we must start educating our people from the primary level
up to the highest level. I do believe that, Culture is
dynamic it is only in the national house of wisdom, that
while dynamism of Culture where probably we shall continue
embracing the good culture and probably leaving the bad culture.
Not unless probably we emphasized the need that upper house to
have that, then our creativity of development will always be a
slaves creativity where we shall always imitate the western world
rather imitating our own Cultural creativity. Thank you very
much,
Prof.
Yash Pal Ghai: 594?
Hon.
Delegate Orie Rogo-Manduli: Thank you very much Chairman.
Thank you Delegates. I am Delegate No. 594 from Political
Parties. I am absolutely delighted that we have come
now--first of all I am Delegate No.594 from the Political
Parties--to face this subject squarely is something that delights
me a lot. As my brother just said here a country, a nation
without Culture, a people without a Culture are an empty lot for
all they have, for all they esteem at the end of the day they are
empty in the soul. I particularly want to support the
fact that the Culture here must be given a Committee on its own
right. It is our duty here as Delegates to recognize that
this is a very important subject which must be discussed solely on
its own. As my sister, honourable Delegates says, they are
all now scattered in to various different Committees, doing
different things. She is in Lands her other colleagues are
in different areas, how and when will they go together to discuss
this very important subject?. I am a product to deprivation
of Culture to some extent. I went to Foreign government and
managed schools where I was taught how to dance, how to do the
Scottish Jike and Irish dance (Laugher) and up to this day I am an
expert in fact I got to be able to dance it better than the owners
of the dance(More Laughter) but I do not know how dance
Nyatiti (Kamba nane). (Laughter). I have been trying
all my life thereafter to learn how to do Nyatiti but I cannot
master it, Kamba nane and all the other cultural dances that we
do. I cannot do the dance that they do at the Coast with
feathers on their shoulders, I would love to do that. What
do you call that one? You call it what? Sengenya? I
cannot do Sengenya but I am doing Scottish and Irish dance, cant
you see something is very wrong here? I want you to know
what my colleague Honourable Delegate Reverend talked about just
now about the bad habits in a Bukusu sitting and deciding on the
wealth of the late Honourable Delegate No. 2. Now those are
not bad habits, they are not, Honourable Members we Luos
also have that kind of thing where we sit together and decide.
It is not to deprive the widow, you may have a selfish widow who
does not give a damn about all the other dependants of her husband;
what will happen to those? She may not give a damn it is
human nature and in Africa the definition of dependant is very
different from the foreign definition. Here in African the
definition of a dependant is not Husband, Wife and Children
fullstop, it is not like that. You have the cousins, you
have the brothers, you have all. Chairman I am winding off.
What happens to me if I die now? And Manduli decides he does
not give a damn about my mother, my brothers, my sisters, my
nephews, my nieces whom I was supporting because he is now the
natural inheritor of all that the Hon. Orie Rogo-Manduli owns?
What happens to every dependant that he does not recognize or like?
(Laughter). Culture is very important and we must
maintain it and we must give it a Committee.
Prof.
Yash Pal Ghai: Please take your seat, please take your seat,
thank you very much.
Hon.
Delegate Orie Rogo-Manduli: --And we must be given a
Committee, Mr. Chairman. We must be given a Committee. Thank
you, Chairman, Asante Chairman(Laughter).
Prof.
Yash Pal Ghai: I have noticed that many of you are carrying
cards which do not belong to you, it is very confusing, so
do not raise a number that is not yours, please. I need to
be able to call on different categories and that does not help me.
If you are 300 you are not using the right card; please respect
the Chair. 436?
Hon.
Delegate Francis Nganga: Mr. Chair, my name is Francis
Nganga Delegate 436 and I rise to support that, this be made a
Technical Committee. Culture is very important, I speak on
behalf of teachers of this republic and I know the pain we have
gone through when the Colonialist and all those people who thought
to be cultured is only to talk in the languages of the foreigners;
we have been killing our own little children in baby class,
nursery schools by initiating to teach them in English, in French,
purporting that they can only be molded if they start knowing
English or French not knowing Luo, Kikuyu or Kikamba. So we
need to really come back to our minds and instill culture in our
people. I have seen what these people have tried to do and in
issues like developing monuments it is time, as a country, we
started respecting our heroes. It can only be debated in the
Culture as a Technical Committee, so, I think the job on our hands
now is to approve this Committee to be made a Technical Committee
then we can go into the details of what it is called. To be
put into the Constitution, is a lot of agony Mr. Chairman, when we
walk around some of us go to Washington you go to Paris and see
monuments of people like Abraham Lincoln and other great heroes of
those nations when you cannot see a hero, a traditional hero in
the Luo land. You cannot see a national Hero like Dedan
Kimathi monument made and now we are 40 years since Independence.
What are we talking as a country, we can not see a monument of one
of the greatest teachers in this land, we cannot see. I would like
to propose even as a house doing the Constitution, one time as the
Constitution takes place, we must develop a little monument and
engrave it in the soil of this Bomas of Kenya to say that is Dr.
Prof. Odhiambo monument who died heroically writing a Constitution
of this Country(Clapping).
These are
some of the things that remind a country of her history and
movement towards development and growth, but we can not ignore
heroes, some of whom have died in action. A man like
this one, we were with him here as a teacher. I am talking
on his behalf although dead, he died while on duty. So a
monument to be placed somewhere strategically within the Bomas of
Kenya to remind children of this country 200 years to come, that a
great teacher who was a political scientist and who taught in a
University, died while struggling to write the Constitution
of this country. What are we talking about without
remembering our Heroes? I saw the other day--Sorry, I want
to oblige. Thank you.
Prof.
Yash Pal Ghai: Thank you. Maybe we should decide,
there seems to be considerable support for establishing a
Technical Committee(Applause) so, the applause I think is
sufficient indication of the support for this idea. So I
would propose therefore that we do set up a Technical Committee
and remit the Draft and the report on culture that the Commission
has prepared and let this Technical Committee begin its work.
Is that your general wish?
Hon.
Delegates: Yes!
Prof.
Yash Pal Ghai: So in that case, I think we will conclude our
deliberation here and in the first instance the Ad Hoc Committee
could be converted into a Technical Committee and we can discuss
the question of further membership in the Steering Committee
tomorrow and we will let you have our recommendations. Thank
you. Yes, Yes, Please.
Hon.
Delegate R. O. Kwach: I am sorry, Mr. Chairman; it is not my
habit to cut you. Now I agree with all that has been said
about setting up a Technical Committee on Culture. I am a
great believer in Culture myself.
An
Honourable Delegate: Who are you?
Hon.
Delegate R. O. Kwach: My name is Kwach, I am Luo(Laughter).
An
Honourable Delegate: Do you have a number?
Prof.
Yash Pal Ghai: Order! Order!
Hon.
Delegate R. O. Kwach: Yes, my number is 618. Now, what
I was saying Mr. Chairman before I was rudely interrupted is that,
Culture is very important and I think we are going the right way
by agreeing here to set up a Technical Committee. I just
want to add that, in doing so, we should bear in mind the fact
that, in the early 60s the administration of President Jomo
Kenyatta made an attempt to codify customary law but it was so
difficult that in the end we ended up with a Restatement of
African Customary Law by Eugene Contran. Now, I think what
we need to consider when--are setting up a Technical Committee,
you must bear in mind that there are 42 tribes in Kenya
Hon.
Delegates: 44!
Hon.
Delegate R. O. Kwach: --And if you take the sub tribes among
the Abaluhya there are 16 sub tribes so, in choosing who are going
to go into that Committee I think you will have to go tribal and
represent everybody. Thank you. (Clapping).
Prof.
Yash Pal Ghai: Thank you. I am sure the Committee will
take that into account.
An
Honourable Delegate: Point of order! Point of order!
Prof.
Yash Pal Ghai: It has to be a point of order otherwise, I am
not going to entertain that. Yes 131?
Hon.
Delegate Mwandawiro Mghanga: Mwenyekiti naomba kueleza
kwamba wakati--jina langu naitwa Mwandawiro Mghanga, mimi ni
Mjumbe namba 131 na kitu ambacho nataka kusema tusiwe na hofu eti
makabila 40 ama 50 ya Kenya hayatawakilishwa, kile mimi natarajia
kitakachofanyika katika hiyo Technical Committee ya utamaduni ni
kuweka misingi ya kuongoza na kutambua wingi wetu kwa makabila
yetu mengi na kuweka misingi ya kuhakikisha kwamba kila tamaduni
katika nchi yetu inakuwa hiyo ni misingi. Si kuingilia kwa
undani kusungumza utamaduni wa Wataita ama Wabaluhya ama Wakikuyu.
Ni kuweka misingi tu ya kutuongoza and kutambua kwamba nchi yetu
ya Kenya inatambua umuhimu was utamaduni na vile vile tuko wengi
katika utamaduni wetu na kila utamaduni unafaa kuendelezwa kwa
manufaa ya Taifa yetu kwa jumla. Asante.
Prof.
Yash Pal Ghai: Thank you. We shall appoint the
Committee in the normal way to make sure that it is fully
representative. Thank you. With that, I want to conclude
this session and we move on to Affirmative Action. Thank you.
Com.
Kavetsa Adagala: Nataka kumshukuru wote kwa kutusaidia sana
kwa mawaidha yenu na tutaendelea tukiwa na hii Kamati nafikiri
kazi nyingi itatendeka huko. Nataka kumshukuru Mghanga kwa
vile ameeleza ni misingi tunaweka, hata codification inafaa tuwe
na ile ambayo iko common hata kama ingine haipo hapo. Na pia,
ningependa kusema hiyo point ya Orie Manduli inafaa watu wa
Scotland wajifunze Isikuti, kwa sababu tumejifunza Nyatiti.
Kwa sababu hiyo ndiyo kuonekana tunaambatana vizuri. Na hii
mambo ya bukusu sijui imeenea sana. It is not good to
bullify other peoples culture especially when it is erroneously
presented. What we had at Wamalwa home is an African Court,
the people who were there were witnesses and I can assure you that
there is not even one needle or spoon that went to those people.
All that there is in that home went to the wife and children of
the late Wamalwa(Clapping). It is really wrong to take other
peoples culture and particularly the young reporters who reported
do not understand what is going on, then they put it through the
mass media and it besotted. I think that, it is very, very
important to realize that people are rational, people know how to
plan to their lives and the negative aspects will be weeded out by
Bill of Rights, that is assured. I think that is all I have
to say all the other comments are taken on. I am grateful
for this Technical Working Committee on Culture and we shall give
them all the support we have including the International
Instruments especially from UNESCO so that they can see can how
other organizations work out Culture.
Thank you
very much, I would like to recognize my fellow Commissioners, Zein
Abubakar and Salome Muigai who worked very hard and also the other
people; Asiyo, Ratanya, Ayonga and Njoroge. I hope I have not left
anyone out and offices lead by Mr. Oyaya. Thank you very
much.
Prof.
Yash Pal Ghai: Thank you very much indeed, Commissioner
Adagala. I would now like to propose that. we move to the
presentation of the Draft on Affirmative Action. Some of us
will have to leave at 12.00 Oclock, because we have a meeting in
town with Parliament and so let us begin this and then see if
we can conclude this by 12.00 Oclock. If not we will
continue after 2.00 Oclock. The presentation will be made by my
Colleague Isaac Lenaola who was on the Task Force dealing with
this issue.
REPORT
ON AFFIRMATIVE ACTION
Session
Chair - Prof. Yash pal Ghai
Presenters: - Com.
Isaac Lenaola
Com.
Isaac Lenaola: Thank you very much Mr. Chairman. Honourable
Delegates, subsequent to your resolution that the Commission do
address the question of Affirmative Action, the Commission did set
up a Task Force which sat down, looked at the Draft Bill,
considered other aspects of Affirmative Action and came up with
proposals which we circulated this morning which will form the
basis for further analysis and re drafting of issues of
Affirmative Action. When the Task Force met, it asked itself
a number of questions and these are those questions.
- Was there enough recognition of the issues of historical
injustices in the Draft Bill?
- Was a distinction drawn between equality and equity?
- Is it possible to create justice where there was injustice
without creating fresh injustices?
- Is it possible to define concepts such as marginalized
communities and concepts such as minorities?
- How can the private sector be required to play its part in
addressing disadvantage?
- What sort of things might a programme of Affirmative Action
involve?
- Was it possible to avoid the risk that programmes would go
on and on without ever achieving their objective?
- It is forceful enough to talk in the Draft of obligations,
as resources would permit?
When the
Task Force, therefore looked at the Draft Bill, it was found that
in fact the Draft Bill does address a few issues of Affirmative
Action for example Article 35, provides a framework for gender
policies in that, it gives equal opportunities on men and women in
Political,. Economic and Social activities. It also says
that, 30% of all Legislative bodies must women. It also says
that Customary Law must conform to the principles of the
Constitution and that includes right given to women. The
Draft Bill also in Article No. 37 gives specific rights to
children commencing with those given to adults. Regarding
the youth it says that, Political Parties must include the youth
in the top up list that we shall present election. On the
people with disabilities, the Draft Bill has extensive provisions
in Article No. 39. Article 36, has provisions relating to
older people and people we call senior citizens of a society.
Regarding poverty, there are rights of housing, freedom from
hunger, the right to food, right to clean water, sanitation and
protection for consumers.
Regarding
Minorities and Communities, Article No. 213 says that, Devolution
must protect and promote the rights and interests of the
minorities and other groups that have been disadvantaged. But also
the working of Article of 258 where the public services must grant
adequate and equal training opportunities for the advancement of
all ethnic groups in Kenya.
On land,
environment and natural resources, it is said that, land must be
held and used in a manner that is fair and just and the land
policy must allow equitable access to resources as fitted with
land. It also says, there must be security of land rights
for all land holders users and occupies in good fair.
Otherwise mechanism in the Draft Constitution include the
enforcement of Bill of Rights through the courts, through the
Commission of human rights and administration justice and also
that the President must report annually to parliament and the
nation on measures to implement national values and principles
this is in Article 14 and 15 of the Draft Bill.
The
economic and social council in Article 257 also enjoined to
monitor progress towards achievement of the rights of Kenyans
affecting the living standards including the standards of living
and advice the government on the formulation, implementations,
monitoring an evaluation of economic and social policies to ensure
that these rights are attained. Basically, those are some of
the aspects which come out of the draft bill that are associated
with Affirmative Action, but, more specifically the Task
Force and the Commission therefore, has come up with provisions in
the paper circulated this morning which would indicate what
proposals are towards defining and
entrenching Affirmative Action in this constitution and therefore,
let me now take you to that document on page No.1 where we are
proposing as follows:-
1. That,
Article 297 in Chapter 19 be amended to include the words
historically disadvantaged person or group means a group of
persons described in one or more of the following categories:-
- Persons who as a result of laws of practices before this
constitution took effect were systematically disadvantaged by
an unfair discrimination on one or more grounds set out in
Article 34. This Article prohibits all forms of
discrimination under Article 34.
- Communities which by reason of small populations have been
unable to fully develop their own internal structures or
resources sufficient to participate in the integrated social
and economic life of the republic as a whole and these targets
minority communities a number of who are represented in this
Conference.
- Traditional communities which out of a need or desire to
preserve their unique and identify from assimilation has
remained outside the integrated social and economic live of
the republic as a whole and this targets communities
traditionally call the conservative communities.
- Indigenous Communities who have retained and maintained a
life style a livelihood on hunter atherer economy and this
targets are calling the sengwere, the ogiek
and other forest based communities.
- Pastoral nomadic persons and communities.
- Pastoral communities which because of their geographical
isolation has experienced only margin of participation in the
integrated social and economic life of the republic as a whole.
2. Point
number two, we are seeking that Article 14 on National Goals and
Principles be restructured and in doing so, it must include a
declaration that, equity, equality and Affirmative Actions are
goals of the people and the republic and to impose obligations
on the State to take steps to achieve these goals. In most
Constitutions, that is the way the Affirmative Action is
addressed to ensure that the republic and the people are
enjoined to operationalise Affirmative Action. Over the
page we are proposing that also in sub Article 2 of Article 14
there is a need to promote and develop the customs, traditional
and cultural values and practices of communities and this was
addressed in the previous presentation. Along side the at
presentation of culture there must be an encouragement of the
preservation and use of the languages of the people of each
community.
3. A
third addition point No. D that the State must promote social
justice, equality and equity and must eliminate all forms of
discrimination and disadvantage amongst the people of Kenya.
Below that we propose point No. H where it states must promote
all forms of education and national expression including
Literature, art science technology and intellectual innovation
and this flows again from the presentation made by colleagues on
the culture Committee. Over the page, Article No. 14 point
No. 2 , while enjoying the State to take measures to eliminate
discrimination and in particular discriminations against and the
marginalization of historically disadvantaged persons and that
flows again from my definition of this persons.
Over
the page, the State is enjoined to recognize, promote and treat
all cultural linguistic or religious communities with equal
respect and dignity and below that we are asking the State to
promote the unity of the republic and enhance peace and
stability among Kenyans by recognizing the diversity of the
customs, traditions, cultural beliefs languages and religions of
people within Kenya. Without going into details again
under G, the State must promote the development of republic by
taking appropriate measures to accord every Kenyan equal
opportunity to attain the highest standard of education,
support, research, invention and innovation in all fields of
endeavor, support, promote scientific and intellectual
innovation and application and support and promote the
development of medical technology preventive medicine and the
popular application of modern and traditional medical practices
and improve the accessibility of medical care for all Kenyans.
And over the page, we also under point No. 6 expound the
qualification of
Below
that, if you look at article No. 34 on Discrimination, it does
not require the State to
take
Affirmative Action measures and so we are proposing that article
30 should enjoin the State to actually take legislative measures
to ensure that Affirmative Action is propagated and enacted
within the law and therefore, over the page we are saying the
State must take reasonable legislative policy and other measures
to achieve the progressive realization of the right guaranteed
in part 3 of the Bill of Rights. By so doing, we enjoin
the State to take action or to pressurize Affirmative Action.
We are also saying that the Commission of Human Rights and
Administrative Justice must through Parliament, enact
legislation to do a few things including all those measures
contemplated to achieve equity, equality and freedom from
discrimination and to take reasonable measures to ensure that
organs of State and public officers fulfill the obligations of
the State under the Bill of Rights. And now regarding
private persons, that they too must fulfill their obligations
under the Bill of Rights to the extent that is it is binding on
them. We are also saying that any measures taken as I have
outlined may include the provision of benefits, funding or other
incentives to private persons corporations association to ensure
these measures are affected through legislation and also that
those measures must certify the requirements of this article and
also article 33.
Over
the page we are proposing that article 34 be amended to include
a clause that it is unfair discrimination for the State or any
person to fail to take reasonable action designed to benefit
presently disadvantaged persons or groups to the extent required
to achieve equity within those persons or groups and other
persons or groups.
Article
38 was covered by my colleague Kavetsa Adagala but we are
proposing over the page as new sub-article which says that
Parliament must enact legislation in a manner consistent to
article 34 to ensure that rights of women to adequate maternity
leave from employment.
Article
39 on the Persons with Disabilities, we have expanded the
present Article 39 to include access to public places and
transport to education and institution facilities and also that
those issues must be addressed and that they cannot be, in
addressing people with disability, we must not refer to them in
a manner that they may be derogatory to their condition.
One last
statement which I wish to make in regard to those people is that
it may well be necessary that the language, the tone of the entire
Draft Bill will have to change so that the language used
throughout must ensure that the values of equity are reflected in
the language of the text and that all the Commissions and
institutions set up in the Draft Bill, must have language that is
consistent to give it text to the principle of inclusiveness and
participation by previously disadvantaged groups. So what we
have done in this Draft Bill in effect, is to attempt to entrench
Affirmative Action within the Constitution. A question will
arise later whether knowing that Affirmative Action is a temporary
measure to bring equalization whether we need as a transitional
stage of this Constitution to put a period through which the State
must effect Affirmative Action.
Mr.
Chairman, thank you very much. Hon. Delegates, thank you for
listening to me.
Prof.
Yash Pal Ghai: Thank you very much indeed. May be I
could just make a comment on the last point which has got the time
factor. Very late last night we agreed that we might have a
provision that after maybe 15 years this provision for Affirmative
Action will be reviewed by some Commission to be set up to see
whether there is need for continuation of this special measures or
others by that time or disadvantaged groups and that includes
women has sufficiently been resisted to overcome the disadvantaged,
and that there may be no need after that for special provisions.
We had a debate whether we should have a ten-year or a
fifteen-year or whether we should have no particular time limit
but then see whether after some years there is a need for review.
The third
position is to specify a time but say that whether it continues or
ends, will depends on investigation of the impact of Affirmative
Action, some statistical information to see whether women and the
disabled, etc, are still left behind and so on because some people
have resisted Affirmative Action because they see this becoming
part of the Constitution for ever and they feel that at some
moment they must decide whether they need to continue these
provisions. So that particular recommendation was made late
at night and could not be captured in this document.
If I
could just repeat some of the points that my Colleague has made as
he is also Member of the Task Force is to say that when we looked
very carefully actual request at the Draft Constitution, we
decided or our conclusion was that we certainly do not know of any
Constitution in the world which is so oriented towards social
justice and Affirmative Action. And we are very proud of it
social justice, helping those who have historic disadvantaged has
been one major concern of the people and of the commission and we
are trying to capture that. We have recommended certain
proposals to strengthen the general skim of Affirmative Action.
We have defined more carefully the categories. We have
specified more clearly the obligations on the State as Lenaola
said. Not just permitting the Affirmative Action but
requiring Affirmative Action we have indicated the ways in which
Affirmative Action could be implemented, could be structured and
we believe that we have strengthened it in these ways and perhaps
nothing very much further is required. We looked at the
first step of debate we had on the Motion to strengthen
Affirmative Action and we have tried to take into account almost
all the points that we made there.
We could
have a general debate and then I would like to have some proposal
on how we proceed further. We could distribute these
recommendations to all the Committees, particularly the Committee
on Human Rights where significant amendments are made but all
Committees will have these and they can see how their particular
Chapter could be strengthened in view of these recommendations.
So could I invite some comments and then we decide on how to
proceed after that. 532.
Hon.
Delegate Lumatete Muchai: Thank you very much, Chairman. My
name is Lumatete Muchai, Delegate No. 532. I appreciate what
Mr. Chairman has just said about giving a time limit as to how far
the Affirmative Action will take because it can go on forever.
However, appreciating what this Committee has done, I think that
there is one aspect that has been left out. You realize that
we need in this country Affirmative Action to correct economic
imbalances and this is something we cannot runaway from. You
find that the people of this country.
And we
are not just talking about minority communities, we are talking
about the majority of the people of this country having been left
out, of the economic activities of the nation and this is
something that ought to be addressed and you cannot talk about
Affirmative Action without addressing the issue of economic
Affirmative Action-- So that is something that we have to
address and as much as we may try to discard that issue, one time
or other, we have to address it and ensure that the people of this
country are economically equal or as much as possible and the
citizens of this country participate in the economic activities of
their nation whether it is manufacturing, whether it is
agriculture and any other activity that takes care of the economic
growth of our nation. Thank you very much.
Prof.
Yash Pal Ghai: Thank you. You will notice that the
Constitution of course and the Bill of Rights talks of the access
of all Kenyans to the basic needs and necessities of life.
So we have a general emphasis on kind of empty poverty measures
you might say and then we will focus later on more specifically on
the really extraordinary
(?) rules which includes, women, disabled and the ethnic groups
that we have identified. Thank you. 353.
Hon.
Delegate Sheul Joseph: Thank you, Chair. My name is
Joseph Sheul, District Delegate no. 353. As has been said by
the Delegate who has spoken before me, I stand to say that I thank
the Commission and particularly those who have worked on this
section because they have taken into cognizance the fact that we
are not at par as a country, that in the regions we had a lot of
economical disparities and stuff like that and I think it is good
and has been very well brought out. And so I commend the
people who have done this part. They have done really a
superb job.
However,
I have a few improvements. I am going to refer to what the
Com. Lenaola was taking us through in Article 34. I think it
is very clear that the fact that it is pointed out here that it is
unfair for the State or any other person not to take cognizance of
these marginalized groups. We also need to put an obligation
on companies and the private bodies and even the civil society
because as much as the State is commanding these resources, I also
believe and I think that most of us concur that even the civil
society in the private sector command a lot of resources and this
is where a lot of imbalances are even very much spelt out in the
appointment policies. Like now some companies that are
working with indigenous people, I imagine for example, in Kwale
where people are harvesting titanium, are they going employ people
there? Is there a policy that leads them towards looking at
the indigenous people of Kwale to bring them up to be at par with
other people of this country. And this cuts across all other
parts of this nation. So it is imperative and it is
important that as much as we obligate also the State, we also tend
to put into the policy because this is the only time we have.
It is only by putting and recognizing the policy level that this
people can be brought to par and if we avoid the aspect of talking
too much and not really putting into things that can lead us
towards this equity and equality because, so long as equity and
equality is not in this country, we will continue seeing what we
are seeing. Thank you so much Mr. Chairman.
Prof.
Yash Pal Ghai: Thank you. 311. Yes, I will come
round, thank you. I will make sure every group has an
opportunity.
Hon.
Delegate Gitonga Joachim: Thank you, Mr. Chairman. My
name is Fr Gitonga Joachim, Delegate number 311. My question
is Mr. Chairman, in Article 37, a child is defined as a person who
is under 18. According to our culture, Mr. Chairman, and in
our societies, we have people who are married at the age of 17,
16, even 15 and they have children at home. Do they still
fall under this definition as children? I think this needs
to be answered so that we can define the child according to our
African way of life. According to our culture. Thank
you Mr. Chairman.
Prof.
Yash Pal Ghai: Thank you. 463.
Hon.
Delegate Suba Churchill: Thank you Chair. I am Suba
Churchill Delegate No. 463. Chairman I want to thank the
group that did this work and to say that the purpose of the Motion
that was moved just before we went into the morning were twofold.
That at one level we are recognizing that there are some certain
communities and sections of this society that have in the past
been discriminated by certain provisions in our Constitution and
traditional structures. Secondly, was to put in place
measures that would ensure that that situation does not continue.
And therefore Mr. Chairman, I want to describe Affirmative Action
as a pain killer. A temporary measure that is meant to
address certain inequalities that have occurred in the past.
But the longevity of this Constitution will come to test when 15
years after its enactment and coming into force, we will still be
talking of Affirmative Action. Because we must not only kill
the pain but must also kill the cause of that pain. The fact
that you have killed the pain does not mean that there is no pain
it is only that you are not feeling it.
Mr.
Chairman, I want to say that in certain provisions and
recommendations particularly as defined in the definition of
historically disadvantaged persons may not require time limits.
I want to submit Mr. Chairman, that this Conference cannot tell
when certain communities will stop their personal ways of life.
We cannot really say that after 15 years the Maasai, for instance,
will become masons and stop keeping livestock. And therefore
we cannot sail in this that Affirmative Action will stop after 15
years. We cannot therefore also Mr. Chairman, in the same
breath say that after 15 years, we will not have youth in this
country. These are lifelong phenomena and we must have
provisions that will constantly address the injustices that occur
to this society or sections of the community. (clapping)
Mr.
Chairman, in fact recent scientific discoveries indicate that by a
certain period of time in future, there will be no men. What
I am trying to say Mr. Chairman, is that when it comes to
addressing the inequalities that have been visited on the
womenfolk, you cannot set time limits. Women will always be
there and are in fact constantly increasing day by day and will at
one time be the dominant human race. So while I appreciate
the work that has been done, I want to also say that these
provisions and recommendations on Affirmative Action go beyond the
Chapters that have been pointed out here, whereas Article 34 says
one cannot be discriminated against on the basis of age,
provisions in the legislature and unrepresentation say that
certain people cannot contest for seats because they are 18 years
or because they can only contest only when they are 21, or they
can only be voted for when they are 35. These are
contradictory provisions and my opinion, Mr. Chairman, is that
some little more work needs to be done on this Affirmative Action
and we need to come up with specific provisions that will address
the inequalities that we are seeking to sought out through this
provision.
Therefore
I want to say that whereas in certain areas we may want to put
fixed time limit, it will be extremely difficult if not impossible
to do the same in certain sections. My submission Mr.
Chairman is that we proceed on the spirit of the Motion that was
moved here, set up an ad hoc Committee or expand the Task Force
that was working on this, to look and do some little more work on
what has been done and use this as a working document and a
guiding document so that we do a thorough job not only to kill the
pain but to address the cause of the pain. Thank you, Mr.
Chairman.
Prof.
Yash Pal Ghai: I should mention that in addition to the
document we have distributed, there are two background on papers
that we shall be making available. One of them in fact will
be available before lunch. There is a longer one which we
have not copied but we will glad to make that available.
609.
Hon.
Delegate Kenneth Njiru: Thank you Mr. Chairman. Let me start
by thanking the Task Force for this job they have done but as the
previous speaker said my name is Kenneth Njiru, Delegate No. 609.
Sorry about that. In the spirit of the Motion that was moved
here, in my mind there is one critical issue that has not
sufficiently been reflected here and this is the principle of
inter-generational equity. And indeed there is one problem I
would like to draw the attention of the Delegates to. This
is the problem of the youth in this country. When I look at
what has been cited here when they are talking about youth, it has
simply talked about political parties and if I may read, political
parties must include amongst the least for top up representation
of various groups including youth and then it has basically just
touched on youth in terms of being the bulk of the working
population.
One thing
that is increasingly happening in this country is that the youth
are feeling marginalized and going by what is happening and going
by what the youth are saying. You should not be surprised
one day if the youth in this country wake up like happened in
India and literally just sweep everybody, the older generation out
of power as it were. And the youth will result to that
because as they try to speak, as they try to say what they think,
nobody is listening to them. Traditionally, even from the
cultural perspective, these people had been taken care of.
And I think what we are talking about the question of
inter-generational equity; all that the youth are asking is that
this Conference recognizes them as the major category and indeed
they are the biggest population in this country in terms of even
inter-generational equity. The question of how much-- if the
present generations can borrow,-- the future generation should pay
should be addressed in places like the finance Committee.
Traditionally
again in terms of youth, there was the question of socializing
young people into the question of leadership. What are we
doing about that? Generally, I appreciate the fact that a
lot has been done and some good stuff has been put up in terms of
children and the older members of the society but again the
question that was raised by the Commissioner when she was
presenting on culture falls squarely the question of
inter-generational equity. How we address the question of
how we take care of the older members of our generation. I
think we should work towards refusing the type of generational war
that is in this country today. Otherwise if we do not do
that I think there will be a big problem. So my asking is
that as we look at this issue further and as the previous speaker
said the spirit of the Motion as had been moved must be captured
and I want to add one more thing, that I feel dogged by the
question of constantly referring to what other people have done
and in other Constitutions. I keep saying that what happened
in places like Philadelphia, whereas of course there is the
question of generally accepted constitutional principles was
unique to the circumstances of the American people at that
particular point in time. We must not shy away as we create
a Constitution that is Kenyan in all aspects of our basic needs.
Thank you Mr. Chairman.
Prof.
Yash Pal Ghai: 540.
Hon.
Delegate Nthamburi Zablon: Thank you very much Mr. Chairman.
My name is Nthamburi, 540. I would like to thank the
Committee that worked on this document and so want to appreciate
what they have done. I also want to appreciate what the last
speaker has said about the youth. I think we need to see the youth
as a group sometimes that has been marginalized and needs to be
given more focus probably in our document but also there is
another group I find very much marginalized in the society and
that is the elderly. I do not mean that when we talk about
the elderly people you only have to put them as take care of their
physical needs but they need to be integrated because what happens
is that many times the elderly people are put in a kind of a cell
and we feel that they have outlived their usefulness and so they
can be looked after but not heard and we need to see that the
whole community or people is included and I would like to see
something cited on about the elderly people.
Prof.
Yash Pal Ghai: There is a very long section article on the
elderly in the Bill of Rights. It is the most comprehensive
article on elderly people anywhere in the world. Please read
that.
Hon.
Delegate Nthamburi Zablon: Thank you very much for that
information. What I would like to say is that this document
should be permitted in every Committee so that we see Affirmative
Action in every aspect although it is being highlighted here but I
think each Committee and team needs to go through this document
and see that in all their deliberations, they affirm Affirmative
Action in every aspect of their work. Thank you very much
Mr. Chairman.
Prof.
Yash Pal Ghai: Thank you. 222.
Hon.
Delegate Betty Tett: Thank you Mr. Chairman. My number
is 222, my name is Betty Tett. I am a bit worried when we
say that we respect, preserve, protect and promote all religious
sectors. In due respect Mr. Chairman, there are some
religions that go against the Human Rights. For example,
there are some sects that forbid the use of medicines. I
think this is a double standard when we are saying that we have to
protect the Human Right and especially the children. So many
times we have heard some children die because their parents have
refused to take them to the Hospitals because their religion does
not believe in hospitals. I think that Mr. Chairman, we
cannot treat all religions equally.
Number
two, are we also going to protect the devil worshipers, Mr.
Chairman. Those were my two points.
Prof.
Yash Pal Ghai: Thank you. 252.
Hon.
Delegate Dubat Ali: Thank you very much, Mr. Chairman.
I would like to thank those who have drafted this paper but Mr.
Chairman, it is very unfortunate that representation for disabled
has not been mentioned. I am wondering how we will have
Affirmative Action if there is no proper representation for the
disabled. Mr. Chairman, there are countries like Uganda
which have specified the number of people with disability that is
going to be in the Local Authorities and in Parliament, and even
in South Africa, I think for us to have Affirmative Action, there
must be specified number of people with disability representing in
the local authority, in the lower house and there is the upper
house. Otherwise Affirmative Action would be just like a
song to us.
The other
thing which I wanted to speak about Mr. Chairman, is we are told
that the Constitution is to address injustice, social justice,
to do better for the people. We are told it is to protect
the right of minorities. Now Mr. Chairman, look at what has
been written in yesterdays paper. Some people want the Kadhi
Court to be thrown out. This is a cultural institution.
It is an institution that protects people with certain faith.
If this Kadhis Court is going to be thrown out, then there is no
essence of having the Constitution reviewed. The meaning of
the act will not be there. So I think for this country to
remain together, we must accommodate one another culturally,
religiously so that we have one unified nation of Kenya. Mr.
Chairman, I think we have to come out with our senses. We
have heard some bishop saying, Oh God, prevail upon the voice of
reasoning. Why dont they want to reason? You are
asking God, Oh God prevail upon the voices of reasoning and you do
not want to reason with those brothers of yours at the next door.
Thank you Mr. Chairman.
Prof.
Yash Pal Ghai: 454 please.
Hon.
Delegate Kathurima Mnoti: Thank you Mr. Chairman. Kathurima
Mnoti, 454. I also want to join others in thanking the
Committee for coming up with this Draft. I really do not
have any quarrel the principles as they are captured here.
Mine is one small issue of detail in terms of definition of
historically disadvantaged person or group. In definition
(e), that is on the second page, it is taken that all pastoral
nomadic persons and communities are historically disadvantaged
persons or groups and yet we still have (f) which talks about
pastoral communities which because of their relative geographical
isolation have experienced only marginal participation in the
(?) great of social and economic life of the Republic as a whole.
If we take it that all pastoral nomadic persons and communities
are disadvantaged then I do not see why we need to include (f).
(f) is a clear sub-section of (e) and to me (f) if only concerned
with the reasons of the marginalization so it appears to be just
only a sub-sector of (e) and we could very conveniently do
away with (f). Thank you Mr. Chairman.
Prof.
Yash Pal Ghai: Thank you very much. 389.
Hon.
Delegate Wilberforce Kisiero: Thank you very much, Mr. Chairman.
I wish to thank the Committee that dealt with this question of
historically disadvantaged groups or people. My name is
Wilberforce Kisiero No. 389. I feel Mr. Chairman that there
is one group that has not been included and these are those
communities in Kenya who the colonialists removed from their own
ancestral lands and refused to compensate those groups. I am
particularly thinking about the Elgonyi which is a sub-tribe of
the Sabaot tribe and the Ogiek and
other similar groups. In the case of the Elgonyi, Mr.
Chairman Sir, the colonial government admitted that the Elgonyi
being a dying tribe had no business remaining in Transzoia and
that gave them one of the reasons to dislocate them and remove
them from their own ancestral land. As a matter of fact Mr.
Chairman Sir, most of these people were removed totally out of the
country into the neighbouring country where they have become
stateless. They are neither Ugandans nor Kenyans. Some
of these Elgonyi were also thrown into the forest into the caves
and into North what was then called North Kavirondo to live under
a different tribe. So these groups of people were totally
marginalized and they are still suffering to this day. It is
my believe that the Constitution should consider those communities
as some of the deserved to be considered and as among those who
were disadvantaged and whose rights should be restituted.
Mr. Chairman Sir, the Article on colonial mistreatment of the
Elgonyi in fact is very clearly recorded in the Kenya Land
Commission of 1932 where it is located and admitted that the
Elgonyi no longer have land they can call their own. If I may
quote Mr. Chairman Sir, from paragraph 1086 of the Land Commission
which says with the possible exception of the elevated firms in
the Kitale District, it does not appear that the Elgonyi have been
dispossessed of any land to which are inequity and justice
entitled but they have no country which they can call their own
unless the survey country comes within that category. Some
are squatters on firms, some are forest squatters on (inaudible)
lands of Elgon and so on. So Mr. Chairman Sir, I request
that that aspect be included in the Draft. Thank you.
Prof.
Yash Pal Ghai: It is indeed included but my colleague will
respond to that. 195.
Hon.
Delegate Zaddock Madiir: Mr. Chairman, the number of points
of observations that I had wanted to make have been adequately
addressed by previous speakers. I would like therefore to
confine myself to the issue of definition of historically
disadvantaged persons. Mr. Chairman, if we accept that (e)
adequately embraces the pastoral communities, I would like to
amend (f) by replacing the word pastoral with the word fishermen
communities. Mr. Chairman, fishermen communities in this
country are a very unique community. First of all you will
find that most of them live on remote islands either on Lake
Victoria or of the Indian Ocean. They also dwell along the
coastline on Lake Victoria as well as along the coastline of the
Indian Ocean. Mr. Chairman, if you investigate a little, you will
find that they are unique in a number of ways; number one, they
actually have small communities who speak different languages from
the mainland groups and over the years Mr. Chairman, their
cultures and languages have been virtually killed in many cases.
If you take a community like the Suba community on the islands and
along the shorelines of lake Victoria, Mr. Chairman in spite of
the fact that they do produce and supply high value and big
volumes of fish for exports, none of that money is ploughed back
to develop those communities in any meaningful manner because of
their minority status and you will find therefore as a result the
infrastructure, the schools, hospitals, roads, electricity are
virtually lacking in those areas.
Mr.
Chairman, I would like to propose that these communities, the
fishermen communities, be included under the definition so that
the historical mistakes that have taken place over the years are
addressed under this provision. Thank you very much, Mr.
Chairman.
Prof.
Yash Pal Ghai: Thank you. We will take two or three more and
then I will ask my Colleague to comment on these points that have
been made--Yes, 259.
Hon.
Delegate Salah Maalim Alio: Thank you, Mr. Chairman.
My names are Maalim Alio, Delegate Number 259 from Mandera
District. First and foremost, I wish to add my voice like
the other Delegates who congratulated the Task Force on the
Affirmative Action and further wish to disagree with the last
speaker, who proposed for the deletion of the pastoral communities
and replacing them with other marginalized groups like the
fishermen. I think he should argue out his case but should
not call the deletion of the pastoral communities. Number
two, following the Motion that was moved that led to the creation
of the Affirmative Action Task Force, the principle of
intergenerational equity is completely missing. So I will
ask the Task Force again to look back into that and come up with
proposals. Lastly, the prints out on Affirmative Action that
were given to us at the door are not visible, so I will ask the
Secretariat to repeat it again and give us clear copies of that.
Thank you.
Prof.
Yash Pal Ghai: Thank you. 510.
Hon.
Delegate Atsango Chesoni: Thank you, Mr. Chairperson. I am
Atsango Chesoni, Delegate Number 510, representing Womens
Organizations. I would like to thank the Task Force for
having done an immense amount of work. However, the
Conference had resolved that we have an Ad-hoc Committee on
Intergenerational Equity and Affirmative Action and to examine the
issue of social equity and it is my feeling that we still require
that Ad-hoc Committee and request that we go through with respect
to the resolution that was moved by the Conference. I say so
because of the complexity of some of the issues that have arisen
and I understand that a great deal of work was done but this is a
cross-cutting issue, and if I was to just look at the example of
the Affirmative Action alone, one of the things that we are asking
for is for the principle itself to be entrenched not necessarily
Affirmative Action in respect to a particular group but the right
to Affirmative Action itself. That is just one of the issues
alone that we are thinking of. As my colleague Delegate
Number 463 had pointed out earlier there will always be groups of
people that face inequity. I think that this matter does
need and requires an Ad-hoc Committee and I would like to request
that we follow through with the request that had been made and had
been agreed to by the Conference. Thank you. (clapping)
Prof.
Yash Pal Ghai: 601.
Hon.
Delegate Luseno H. Liyai: Thank you, Mr. Chairman,
Honourable Delegates, I am Luseno Liyai, 601 from Political
Parties. Thank you Chair for recognizing Political Parties
so that they can also contribute. One, since we are now
defining or attempting to define what marginalized groups are or
historically disadvantaged groups are, and we have talking been
about women, I think they also lead on that queue.
Two, I
should also congratulate this team for having taken a very
courageous step and actually propose that there will be education
for everybody. Actually, education is the one that leads
Kenyans out of the mess in which we are and especially poverty.
Meanwhile, we are avoiding a very major group in Kenya actually
they are the majority, but so far we dont talk about them. Despite
all the recommendations from them we are only given power to vote.
We only cast it that day and that is the end of it. We are
actually the poor, marginalized by the way of our poverty and our
economic weakness. I think this should be properly captured
as we define our historically disadvantaged group of people.
To qualify that, in Kenya as much as we are 42 or more
tribes, we can actually break that down into two major groups
economically. We have the haves on one side and have-nots on the
other I am sure the haves are only about ten percent of this
nation and are controlling all the political power this nation has
ever had since Independence. This have-nots, called the poor
people or the under privileged or sometimes they are called the
unfortunate I dont know how their misfortune came about-have
completely been excluded from political power except voting.
Thank you, Mr. Chairman. I wish the Conference would do
something about that.
Prof.
Yash Pal Ghai: 101
Hon.
Delegate Michuki John: Thank you, Mr. Chairman. I want
to make my observation on this Chapter on the issue of rights.
As I understand it myself--My name is John Michuki, Minister for
Transport and Communication. Mr. Chairman, first of all, I
want to congratulate you for what you said yesterday that everyone
in this hall must be heard otherwise people will speak outside
there. Therefore, Mr. Chairman, I am saying in so far as
this Chapter is concerned, my understanding is that there are the
fundamental rights which are noted in the Constitution for the
purposes of making it quite clear that no one whether in
Government or elsewhere will be allowed by any means to interfere
with those rights, for example, the right to worship. There
are also as I understand it in this Draft rights which are to be
conferred by the Constitution. Some of these concern for
example what is now called here, access to adequate amount of food
as and when it is required. Others are rights that confer
benefits of housing and so forth and so on. I do think that
this Constitution must also provide how those rights are to be
implemented, in other words, the means with which to provide them.
Also, looking at the issue of access to food, it creates the
impression as drafted in this Draft here, that we are about to
legalize theft, because for example we are now going for lunch,
there are people around here in Langata who have no food to eat.
Supposing they invaded this place as we sit down to eat.
Under this Constitution, they have that right to do so and
therefore, Mr. Chairman, I am trying to say that as good as it
sounds, we must safeguard certain aspects of the consequences of
what we decide here.
Finally
Mr. Chairman, for equalization of wealth, one way of course, is to
tax the rich in order to provide services to the poor which is
what we are doing today. That is one way of equalization.
The other of course is to provide certain services which are
critical through public funds. But these funds have a limit
and as you may remember Mr. Chairman, I have on this floor
suggested that this Commission of yours and this Conference here
ought to have a Committee that would cost all the proposals that
we have so that we do not frustrate ourselves at the time of
implementation because of lack of resources. With those few
remarks Mr. Chairman, I thank you.
Prof.
Yash Pal Ghai: Thank you. I now propose to ask my
colleague… please listen to me, my colleague to comment on this,
then we should decide how we want to proceed because some of us
have to leave for a meeting in Parliament in a few minutes.
So I will first give the floor to my colleague because many of the
points that you have made are already included in the
Constitution, and so I would like him to clarify that point.
Thank you.
Com.
Isaac Lenaola: Thank you, Mr. Chairman. A lot of the
issues that are coming from the floor are addressed in various
parts of the Draft. Let me start with the last speaker,
Delegate Number 101. There is a presumption that the third
generation rights in this Draft Bill will be given as a matter of
right without limitation. I beg that you look at Article 72
of the Draft Bill and see how the Bill of Rights is meant to be
applied and implemented. Then you will see the connection
between the right to housing, access to food and so on vis-à-vis
implementation.
Regarding
poverty, again the Draft Bill attempts to address the disparity
between the haves and have-nots but if Honorable Delegates feel
that the Draft is wanting in addressing those questions, again it
is your opportunity to input into Article Number 34 and the
Articles that relate to access to housing, food, education and so
on. On the other question specifically, definition of a
child. We have taken the legal interpretation that a child is a
person under 18 years and whether or not a child gives birth when
she is under 18, does not make her an adult by fact of giving
birth, that person is still a child.
On the
intergenerational equity question, I think again that this is a
question we must continue addressing as we input into this Draft.
We thought ourselves we had tried to address it, if it is wanting,
then during the debate across the Committees, perhaps our
colleagues from the youth lobby will ensure that intergenerational
equity is addressed fully in whatever chapter. I agree with
Honorable Delegate Suba that there is need to harmonize these
proposals on Affirmative Action and the age question vis-à-vis
other parts of the Draft Constitution so that we dont say on one
hand the youth can participate in all affairs of State, whereas on
the other we limit their participation through other provisions.
I think in terms of harmonization, that has to be done.
Honourable
Betty Tett was asking about the rights of children. I think
Article 37 is exceedingly loaded with the rights of children,
including the rights to healthcare. And if you look at
Article 37, you will see that it is very difficult for one to say
that those Articles can allow a parent to stop a child from going
to get education, medication because of their religious beliefs.
So again, I think let us look at that Article.
Religious
freedom one of the questions we as a Commission found very
difficult to address is to say on one hand, you have a right to
freedom of religion, on the other hand we are saying, you must
worship a particular being. This is because you dont give on
one hand and take on the other, but of course once one goes beyond
the limits given by the Constitution, then that is the question of
law again and the limitation is given by the law. Therefore,
devil worshipers and so on are limited in fact by the limitation
of rights within this Constitution. Kathurimas question of
definition, I think that can be addressed because you will see
that point Number E on definition could actually be input into F
and therefore it is not an issue, maybe just an oversight.
Honorable Kisiero, one, the Elgoni Maasai we though we covered
them under the definition under point number A only in terms of
definition.
In terms
of the land claims and historical land injustices, this again is
covered under Article 235 on land and we are saying all the
historical land claims will be reviewed within a framework
set up by this Constitution and that includes the Maasai, people
of the Coast, the Mazrui 10 mile strip, the Elgoni, the Ogiek
and all communities that have historical land claims, whether
through the colonial government or subsequent to it. So I
think again Article 235 covers the question of the Elgoni.
The other
point which I thought I should raise is… now the question of the
Ad-hoc Committee on Affirmative Action. We may disagree but
the Committee took the view that because these questions cut
across the entire Draft Bill, it will be best that our proposals
and any input from the floor here and from members directly should
be taken to each Committee so that each will address its Chapter
in the context of this Draft; so that for example the proposals by
Suba on the Legislature can actually go in the Legislature in the
context of this framework which will be done by the Committee but
again that is the question which I am sure the Chairman will rule
on but our Committee took the view that we should have this
documents circulated right from the committees and then we will
make input into each Chapter because the whole thing cross-cuts
the entire Draft Bill. Thank you, Mr. Chairman.
Prof.
Yash Pal Ghai: That would be my recommendation too, that we
turn this Draft Bill background report on which this is based, the
transcript of this meeting, and ask each Committee to see where
they can strengthen the Affirmative Action proposals. I am a
little bit concerned if we have too many committees, we fragment
the document too much. For example, many of the
recommendations we have made are quite central to the way in which
the Bill of Rights is to be organized. If we have a totally
separate Committee on Affirmative Action and the Bill of Rights
has finished its work, it will be very hard to integrate that
later on. So I think if you agree I would suggest that we draw to
the attention of all the Committees this set of recommendations,
the background paper which explains this in great detail and that
each Committee see how their particular Chapter can be
strengthened from this perspective. Is that alright?
Hon.
Delegates: (in chorus): Yes.
Prof.
Yash Pal Ghai: Thank you very much indeed. Now I would
like to adjourn because we have to go to Parliament, I will report
to you on our discussion with them. One issue I believe
which they would wish to raise is the question of timing, the
resumption and I shall remind them that this Conference, by
overwhelming endorsement said that we should meet in November and
I will make sure that no decision is made until the discussion has
been reported to you. Then we will meet at 2:00 Oclock at
which time we will present our Draft on Devolution. Please
try to be back on time because their Draft is very lengthy and we
would very much like you to understand our proposals and then to
comment on them. So thank you for your patience, please
remind your friends outside that they really should be inside, we
have had a very poor attendance today and that is not very good
for us. Please let us have the full House when we meet in
the afternoon. Thank you very much indeed.
Meeting
adjourned at 11:50 am.
|
