Archive 2003

 

**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. 

  1. Was there enough recognition of the issues of historical injustices in the Draft Bill?
  2. Was a distinction drawn between equality and equity?
  3. Is it possible to create justice where there was injustice without creating fresh injustices?
  4. Is it possible to define concepts such as marginalized communities and concepts such as minorities?
  5. How can the private sector be required to play its part in addressing disadvantage?
  6. What sort of things might a programme of Affirmative Action involve?
  7. Was it possible to avoid the risk that programmes would go on and on without ever achieving their objective?
  8. 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:- 

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. Pastoral nomadic persons and communities.
  6. 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.

      That is our attempt at defining the groups or persons who have been historically disadvantaged. 

    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

    Kenyans in international exchange and corporation. 
     

    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. 

 

OGIEK HOME