About the CoE Process

About the CoE Process

A new Constitution of Kenya Review Act 2008 set out the process required by the National Accord. The Committee of Experts was created by the Act. Like the other bodies that resulted from the Accord, the Kreigler and Waki Commissions and the TJRC, some of its members were foreigners: three “nominated by the National Assembly from a list of five names submitted to the Parliamentary Select Committee by the Panel of Eminent African Personalities [the Kofi Annan group], in consultation with the National Dialogue and Reconciliation Committee”. The other 6 members were Kenyan, mostly lawyers. In addition the Attorney General and the CoE’s Director were members (ex officio and without being able to vote). Three of the members were women.
The CoE was required to study the various previous drafts: the CKRC, Bomas and “Wako” drafts, and the proposals of the PSC at Naivasha and Kilifi, to identify the areas of agreement and disagreement between them, the latter being described as “contentious issues”, to receive submissions from the public on the contentious issues, to carry out research and consult experts, and to produce proposals for dealing with the contentious issues, and then produce a “harmonised draft” constitution. 
The Act created a “Reference Group” representing various religious and other civil society groups to be consulted by the CoE.
The Act came into force in December 2008 but the CoE was not appointed until March 2009, leaving only 9 months to complete their task. They did in fact produce their first draft on November.
The CoE first sought public views on what were the contentious issues and how to resolve them, and identified the following areas as contentious:
i. The system/form of Government (i.e., the Executive and
the Legislature),
ii. Devolution of Powers, and
iii. Bringing the Constitution into Effect (Transitional Clauses)
And the identified other “issues of concern” including:
a) Kadhis Courts
b) Land
c) Electoral systems
d) Affirmative Action
They held meetings with the Reference Group, held workshops, and had various other consultations and meetings
Then they produced a “Harmonised Draft” that drew very heavily on the Bomas draft. This was in December 2009. The timetable in the Act gave 30 days for public comment on the draft. Then the CoE had 21 days to revise the draft and send it to the PSC. The revised version was the “Revised Harmonised Draft”
This draft then went to the Parliamentary Select Committee meeting in Naivasha, which reported at the end of January, and returned a further revised draft to the CoE. They proposed various changes, of which the most important was a complete shift in the system of government from a Parliamentary system to a US style presidential system modelled on that of the US . The CoE accepted some of the changes (including that on system of government), rejected some, though they sometimes amended their draft a little in the light of the PSC recommendations.
The CoE then published their final version as the Proposed Constitution. They carried out civic education on the draft, and on August 4th 2010 the people of Kenyan voted in a referendum. 
The CoE produced several Reports:
Preliminary Report of the Committee of Experts on Constitutional Review Issued on the Publication of the Harmonised Draft Constitution 
Report on Submission of the Revised Harmonized Draft Constitution to the Parliamentary Select Committee on 8 January 2010
Report on the submission of the Proposed Constitution to the National Assembly on 23 February 2010
Final Report dated 11th October 20 10. 
Other publications were:
• Newspaper supplement in June 2009
• Progress Report in October 2009
• Some explanatory civic publications. Civic Education Manual and Simplified Version of the Proposed Constitution 

Katiba Institute

Kenya National Library Services

 

B.I.E.A