Post by Ghais Opinion Ed on Nov 16, 2005 7:17:10 GMT 3
Referendum Draft contains some critical drafting errors
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By Yash Pal Ghai
When the Attorney-General and his team retreated to their luxurious drafting quarters, they did improve some of the technical legal drafting of the Bomas Draft. But some defects they left, and, as they did the bidding of the Government and the MPs in changing the Draft to what we call the Referendum Draft, they introduced some new errors. Some may not matter. Others may cause confusion. Some may need to be changed – by the very complex amendment process.
The beginning of the president’s term is stated (art. 152) in two different ways – either 21 days after the result is declared or when the previous president’s term ends. Which is to be taken if the result is different?
Parliamentary and presidential terms end after five years. Both elections must be held on the same day. The result of a presidential election must be declared within seven days, and the new president takes office on a Tuesday following a further three weeks (if we take the first statement in art. 152 about when this occurs). But Parliament first sits within seven days after the end of the life of the previous parliament, that is maybe as long as five weeks after the election. If this happened, five years later, when an election was held four weeks before the term of parliament ends, this would be only three weeks before the term of the President expired. But the new President does not take office for over three weeks.
In wartime, parliament’s term may be extended by up to a year (art. 139)– but the President’s term must still end after five years. But article 147 says that presidential elections must be held at the same time as parliamentary, or if a person elected dies before assuming office; it does not say that there can be a presidential election not linked to a parliamentary one if the life of parliament is extended. (It also fails to mention the possibility that there may be need for an election if the president dies when there is no Deputy President.)
It would have been much clearer if the Draft Constitution had provided that both the President and Parliament would be sworn in on the same day fixed by law (and leave office the same day).
If a president dies when there is no Deputy President to take her place, the Speaker takes over and there must be a presidential election (art. 156(4)). The article says that the presidential election to fill the gap must be held within 60 days of the vacancy in the office of Deputy President. This is nonsense: if the Deputy is alive when a President dies or resigns the Deputy immediately assumes office—and there is no question of an election. But if for some reason there is no Deputy President when the President dies, elections must be held within 60 days of the death of the President (it is conceivable that the Deputy President may have died or resigned some weeks before the death of the President (art. 159)).
The Leader of the Opposition has the right to participate in all official state functions. What does this mean? Has she to be invited to all the dinners the president may offer visiting dignitaries? Or to all the ceremonies that the president performs?
The Referendum Draft provides for the possibility that a law may permit abortion. In the Attorney General’s enthusiasm to make this possible it seems the drafters have robbed the right to life of all content it exists ‘except as may be prescribed in an Act of Parliament’! An essential reason for Bills of Rights is to limit what even parliament may do!
The Referendum Draft also has a considerable number of expenses that are stated to be ‘a charge upon the consolidated fund’. This means that this expenditure is not to be debated in Parliament. The device is intended to protect certain offices from being debated annually by Parliament, and means the payment is automatic. In the current constitution it is used only in connection with the salary and entitlements of the President and retired presidents, of the judges and other important officers like members of the public service commission and the auditor general. But in the Referendum Draft such ‘protected funds’ include all the expenses of commissions, including all the benefits of members, even all the expenses of the parliamentary service commission which provides staff and facilities to MPs! This trivializes an important constitutional device, and makes problematic the task of the finance ministry.
On the day when the Constitution would come into effect, any right that a foreigner now has in land which is greater than a 99 year lease would be taken away and returned to the Government, who must then give that person a 99 year lease. There are some 999 year leases, and some land that is owned outright. At a late stage at Bomas the draft said that the 99 year lease for non-citizens would be in return for a nominal rent. But this, very fair, statement disappeared in the final stages of Bomas itself. And it might have been better for the change to a 99 year lease from a greater interest to be automatic – rather than saying the state must give a 99 year lease.
Furthermore, the Referendum Draft gives no transition time for the coming into force of this provision! This means that there is no time to sort out the implications of this change: would companies, for example be affected? What about Kenyan/non-Kenyan married couples where the family home is in the name of the non-Kenyan spouse, or in both names.
Changes to devolution provisions has produced several examples of bad drafting. The provision that says legislation can take away any powers of the District may be the result of merging together unthinkingly the provisions in previous drafts about the regions (that would not now exist) and the Districts.
Its effect on the position of districts is potentially disastrous (and means that districts have no constitutionally guaranteed powers), as I argued in the article on devolution.
There is probably bad copying in the list of District powers (para. 8): (c) fair survey and mapping; (e) housing trading practices.
There is still a duty on Districts to ‘devolve’ services etc of government as much as possible – even though, since there is now no mention of Locations and Villages, there is no lower level of government to devolve them to. Similarly District Councils are to coordinate the functions ‘of units’ in the District. This makes less sense now that there are no constitutionally specified units within the District. And the transitional provisions still mention locations though they are no longer provided for.
A District Council (excluding the chair and deputy) must not have more than one third of the members of the District Assembly OR more than 10; but it does not say whether the lower or higher of these figures applies if they are not the same. This defect was in the Bomas Draft as well.
There are various other loose ends, inconsistencies or plain prolixity, as well as examples of inelegance that may make no difference to the sense. One example is the article that defines terms (286) and refers to political parties as associations formed for the purposes contemplated by article 112 – but this article does not contemplate any purposes!
One can sympathise with the Attorney-General who may have considered that minimum redrafting was called for. But when the task of drafting was given to his office, one would have expected improvements in the style of the text, removal of ambiguities, and anticipation of problems.
It is a pity that the team of drafters that the Attorney-General assembled and who had ample time to review, from a technical perspective, various drafts, did not take the opportunity to do a better job of drafting.
* The writer is a former chairman of Constitution of Kenya Review Commission
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By Yash Pal Ghai
When the Attorney-General and his team retreated to their luxurious drafting quarters, they did improve some of the technical legal drafting of the Bomas Draft. But some defects they left, and, as they did the bidding of the Government and the MPs in changing the Draft to what we call the Referendum Draft, they introduced some new errors. Some may not matter. Others may cause confusion. Some may need to be changed – by the very complex amendment process.
The beginning of the president’s term is stated (art. 152) in two different ways – either 21 days after the result is declared or when the previous president’s term ends. Which is to be taken if the result is different?
Parliamentary and presidential terms end after five years. Both elections must be held on the same day. The result of a presidential election must be declared within seven days, and the new president takes office on a Tuesday following a further three weeks (if we take the first statement in art. 152 about when this occurs). But Parliament first sits within seven days after the end of the life of the previous parliament, that is maybe as long as five weeks after the election. If this happened, five years later, when an election was held four weeks before the term of parliament ends, this would be only three weeks before the term of the President expired. But the new President does not take office for over three weeks.
In wartime, parliament’s term may be extended by up to a year (art. 139)– but the President’s term must still end after five years. But article 147 says that presidential elections must be held at the same time as parliamentary, or if a person elected dies before assuming office; it does not say that there can be a presidential election not linked to a parliamentary one if the life of parliament is extended. (It also fails to mention the possibility that there may be need for an election if the president dies when there is no Deputy President.)
It would have been much clearer if the Draft Constitution had provided that both the President and Parliament would be sworn in on the same day fixed by law (and leave office the same day).
If a president dies when there is no Deputy President to take her place, the Speaker takes over and there must be a presidential election (art. 156(4)). The article says that the presidential election to fill the gap must be held within 60 days of the vacancy in the office of Deputy President. This is nonsense: if the Deputy is alive when a President dies or resigns the Deputy immediately assumes office—and there is no question of an election. But if for some reason there is no Deputy President when the President dies, elections must be held within 60 days of the death of the President (it is conceivable that the Deputy President may have died or resigned some weeks before the death of the President (art. 159)).
The Leader of the Opposition has the right to participate in all official state functions. What does this mean? Has she to be invited to all the dinners the president may offer visiting dignitaries? Or to all the ceremonies that the president performs?
The Referendum Draft provides for the possibility that a law may permit abortion. In the Attorney General’s enthusiasm to make this possible it seems the drafters have robbed the right to life of all content it exists ‘except as may be prescribed in an Act of Parliament’! An essential reason for Bills of Rights is to limit what even parliament may do!
The Referendum Draft also has a considerable number of expenses that are stated to be ‘a charge upon the consolidated fund’. This means that this expenditure is not to be debated in Parliament. The device is intended to protect certain offices from being debated annually by Parliament, and means the payment is automatic. In the current constitution it is used only in connection with the salary and entitlements of the President and retired presidents, of the judges and other important officers like members of the public service commission and the auditor general. But in the Referendum Draft such ‘protected funds’ include all the expenses of commissions, including all the benefits of members, even all the expenses of the parliamentary service commission which provides staff and facilities to MPs! This trivializes an important constitutional device, and makes problematic the task of the finance ministry.
On the day when the Constitution would come into effect, any right that a foreigner now has in land which is greater than a 99 year lease would be taken away and returned to the Government, who must then give that person a 99 year lease. There are some 999 year leases, and some land that is owned outright. At a late stage at Bomas the draft said that the 99 year lease for non-citizens would be in return for a nominal rent. But this, very fair, statement disappeared in the final stages of Bomas itself. And it might have been better for the change to a 99 year lease from a greater interest to be automatic – rather than saying the state must give a 99 year lease.
Furthermore, the Referendum Draft gives no transition time for the coming into force of this provision! This means that there is no time to sort out the implications of this change: would companies, for example be affected? What about Kenyan/non-Kenyan married couples where the family home is in the name of the non-Kenyan spouse, or in both names.
Changes to devolution provisions has produced several examples of bad drafting. The provision that says legislation can take away any powers of the District may be the result of merging together unthinkingly the provisions in previous drafts about the regions (that would not now exist) and the Districts.
Its effect on the position of districts is potentially disastrous (and means that districts have no constitutionally guaranteed powers), as I argued in the article on devolution.
There is probably bad copying in the list of District powers (para. 8): (c) fair survey and mapping; (e) housing trading practices.
There is still a duty on Districts to ‘devolve’ services etc of government as much as possible – even though, since there is now no mention of Locations and Villages, there is no lower level of government to devolve them to. Similarly District Councils are to coordinate the functions ‘of units’ in the District. This makes less sense now that there are no constitutionally specified units within the District. And the transitional provisions still mention locations though they are no longer provided for.
A District Council (excluding the chair and deputy) must not have more than one third of the members of the District Assembly OR more than 10; but it does not say whether the lower or higher of these figures applies if they are not the same. This defect was in the Bomas Draft as well.
There are various other loose ends, inconsistencies or plain prolixity, as well as examples of inelegance that may make no difference to the sense. One example is the article that defines terms (286) and refers to political parties as associations formed for the purposes contemplated by article 112 – but this article does not contemplate any purposes!
One can sympathise with the Attorney-General who may have considered that minimum redrafting was called for. But when the task of drafting was given to his office, one would have expected improvements in the style of the text, removal of ambiguities, and anticipation of problems.
It is a pity that the team of drafters that the Attorney-General assembled and who had ample time to review, from a technical perspective, various drafts, did not take the opportunity to do a better job of drafting.
* The writer is a former chairman of Constitution of Kenya Review Commission