About Drafts

About Drafts

Agitation for new Constitution began in the late 1980s. There was even a draft of a new Constitution prepared by the Law Society in the 1990s. National conferences at Safari Park Hotel and the Bomas of Kenya in the late 1990s achieved some reforms to the election commission, and set guidelines for a process to make a new Constitution.
In the end there were two processes set up by law for making a new Constitution: the Constitution of Kenya Review Commission (CKRC), set up in 2000, followed by the National Constitutional Conference (Bomas) which sat from 2003 to 2004, and then the Committee of Experts (CoE) from 2009-2010. In between the government and Parliament took over the draft, changed it – but their new draft was rejected in a referendum in 2005.
The CKRC produced a draft Constitution (and a short Report that explained it) in September 2002 (the CoE called it the “Ghai draft”). The Bomas conference produced a draft based on the CKRC draft, though with some important changes, in March 2004.
A court decision then held that a referendum would be needed to adopt a new Constitution. The Bomas draft was considered at a Parliamentary Select Committee meeting in Naivasha (2004) and later in Kilifi, and the law about the constitution review process was also changed to allow Parliament to change the draft. The draft as adopted by Parliament is commonly known as the “Wako draft”.
Various attempted were made to re-start a constitutional process. A “Committee of Eminent Persons” chaired by Bethuel Kiplagat produced a set of possible ways ahead in 2006, but nothing happened.
After the post-election violence and the National Accord, the CoE was set up to consider previous drafts and harmonise them. Its Harmonised Draft (late 2009) drew heavily on the Bomas draft. After public comment it produced the Revised Harmonised Draft. This was considered by the Parliamentary Select Committee at Naivasha, which proposed various changes (most important of which was a completely different system of government, namely the US-style presidential system, as opposed to a parliamentary system).
The CoE accepted the Naivasha suggestions on the most politically contentious issues, and produced their final draft. Some MPs proposed changes but none was able to get sufficient support in Parliament. Parliament adopted the draft (though the law did not require this step), and it was submitted to the people (as the “Proposed Constitution of Kenya”) in a referendum on August 4 2010.
The President “promulgated” the Constitution on August 27 2010, by signing it in public, and formally presenting it to the people in Uhuru Park. It came into legal force immediately, though some bits, about the new governmental system, were postponed until the 2013 elections.

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