Omar Bennett
Kenya's constitution has undergone several amendments since the country gained independence in 1963. The process of amending the constitution is a complex one, involving both parliamentary and popular initiatives. While some amendments can be enacted by Parliament alone, others require a referendum, in which a simple majority of citizens voting must approve the changes. In addition, any proposed amendment must first be publicised and discussed by Kenyans for a period of 90 days before being voted on. This article will explore the history of constitutional amendments in Kenya and the processes by which they are made, as well as some of the more recent attempts to amend the 2010 Constitution.
| Characteristics | Values |
|---|---|
| Constitution | 2010 Constitution of Kenya |
| Amendment Process | Parliamentary initiative (Article 256) or popular initiative (Article 257) |
| Parliamentary Initiative | Proposed amendment enacted by Parliament and approved by the President within 30 days |
| Popular Initiative | Requires support from at least one million registered voters, then submitted to county assemblies for approval |
| Referendum | Required for certain matters, including national values, Bill of Rights, term of office of the President, independence of the Judiciary, etc. |
| Referendum Requirements | At least 20% of registered voters in half of the counties must vote, with a simple majority supporting the amendment |
| Historical Amendments | Introduction of Prime Minister and Deputy Prime Ministers, repeal of Section 2A enabling multi-party politics, enabling president to pardon politicians |
| Recent Proposals | Changing election date, equitable gender representation, devolution of resources to counties, restructuring executive powers |
Explore related products
What You'll Learn
Amendments via popular initiative
The Constitution of Kenya 2010 allows for amendments that originate outside of the legislature. Article 257 of the constitution outlines the process for amendments by popular initiative.
A popular initiative for an amendment to the Constitution of Kenya may take the form of a general suggestion or a formulated draft Bill. If the initiative is a general suggestion, its promoters must formulate it into a draft Bill. The promoters must then deliver the draft Bill and supporting signatures to the Independent Electoral and Boundaries Commission (IEBC). The IEBC will verify that the initiative has the support of at least one million registered voters.
If the IEBC is satisfied that the initiative meets the requirements, it will submit the draft Bill to each county assembly for consideration within three months. If a county assembly approves the draft Bill within three months, the speaker of the county assembly will deliver a copy of the resolution to the IEBC. If either House of Parliament fails to pass the Bill, or the Bill relates to a matter specified in Article 255(1), the proposed amendment will be submitted to the people in a referendum.
For a referendum to be valid, at least half of the registered voters in at least half of the counties must vote, and the amendment must be supported by a simple majority of those voters.
The popular initiative process has been used by opposition groups in Kenya to try to amend the Constitution. For example, the Coalition for Reforms and Democracy (CORD) collected 1.4 million signatures in support of the Okoa Kenya Bill, which sought to amend various provisions of the Constitution. However, the Okoa Kenya campaign ultimately failed to gather enough signatures to proceed.
Amending the Constitution: Our Nation's Enduring Strength
You may want to see also
Amendments via parliamentary initiative
Amendments to the Kenyan Constitution can be proposed by Parliament, in accordance with Article 256.
A proposed amendment may be introduced in either House of Parliament and must not address any other matter apart from consequential amendments to legislation arising from the Bill. The Bill shall not be called for a second reading in either House within 90 days after the first reading of the Bill in that House. After passing the first reading, the Bill must then be passed by Parliament when each House of Parliament has passed the Bill, in both its second and third readings, by no less than two-thirds of all the members of that House.
Once the Bill has been passed, the Speakers of the two Houses of Parliament shall jointly submit the Bill to the President for assent and publication within 30 days. If a Bill to amend the Constitution proposes an amendment relating to a matter specified in Article 255 (1), the President must, before assenting to the Bill, request the Independent Electoral and Boundaries Commission to conduct a national referendum for approval of the Bill. Within 30 days of the chairperson of the Independent Electoral and Boundaries Commission certifying to the President that the Bill has been approved, the President shall assent to the Bill and cause it to be published.
Matters that require a referendum include:
- The supremacy of the Constitution
- The territory of Kenya
- The sovereignty of the people
- The national values and principles of governance referred to in Article 10 (2) (a) to (d)
- The Bill of Rights
- The term of office of the President
- The independence of the Judiciary and the commissions and independent offices to which Chapter Fifteen applies
- The functions of Parliament
- The objects, principles and structure of devolved government
- The provisions of Chapter Sixteen
It is important to note that there have been examples of governments rushing constitutional amendment Bills through Parliament without MPs having much understanding of them. Some important changes are not left to MPs alone and must be approved by a referendum. For example, the popular initiative for constitutional amendment has been used to bypass actual or perceived institutional resistance in parliament.
The Last Proposed Amendment: A Recent Development?
You may want to see also
Amendments that require a referendum
The Constitution of Kenya 2010 outlines the process for amending the country's constitution. While some amendments can be enacted by Parliament, others require a referendum.
A referendum is required when an amendment relates to the following matters:
- The supremacy of the Constitution
- The territory of Kenya
- The sovereignty of the people
- The national values and principles of governance referred to in Article 10 (2) (a) to (d)
- The Bill of Rights
- The term of office of the President
- The independence of the Judiciary and the commissions and independent offices to which Chapter Fifteen applies
- The functions of Parliament
- The objects, principles and structure of devolved government
- The provisions of Chapter Sixteen, which outlines the process for amending the Constitution
For a referendum to be valid, at least 20% of registered voters in each of at least half of the counties must participate, and the amendment must be supported by a simple majority of those voting. This is known as the "20% rule."
In addition to the matters outlined in Article 255, there may be other instances where a referendum is required. For example, if a proposed amendment fails to pass in Parliament, it may still be submitted to a referendum under the people's initiative procedure. This was the case with the proposed amendment to change the date of general elections, which failed to obtain the required 2/3 support in the National Assembly and was subsequently submitted to a referendum.
Another way to initiate a referendum is through a popular initiative, which requires one million signatures from registered voters in support of a proposal to change the Constitution. If this threshold is met, the proposal is submitted to the counties for approval, and if approved by a majority of county assemblies, it is then submitted to a referendum.
The referendum process in Kenya is designed to ensure that any changes to the Constitution reflect the will of the people and protect the substance of the Constitution.
The Fourth Amendment: Protecting Our Constitutional Rights
You may want to see also
Explore related products
Amendments that don't require a referendum
Amendments to the Kenyan Constitution can be proposed by a parliamentary initiative or a popular initiative. While a referendum is required for most amendments, there are some exceptions where a referendum is not necessary. Here are the scenarios where amendments can be made without a referendum:
Amendments by Parliamentary Initiative (Article 256)
Parliamentary initiatives for constitutional amendments are introduced in the form of a bill in either house of Parliament. For an amendment to be approved without a referendum, it must:
- Be publicised and open to public discussion for at least 90 days.
- Receive a two-thirds majority vote in both the National Assembly and the Senate (at least 234 votes in the National Assembly and 45 in the Senate) during both the second and third readings of the bill.
- Be jointly submitted by the Speakers of both Houses of Parliament to the President for assent.
- Receive the President's assent within 30 days of the bill being enacted.
Amendments by Popular Initiative (Article 257)
Popular initiatives for constitutional amendments can be proposed by citizens, movements, or political parties. To amend the constitution without a referendum through this method, the following steps must be taken:
- Collect the signatures of at least one million registered voters in support of the proposal.
- Submit the proposal, along with the signatures, to the Independent Electoral and Boundaries Commission (IEBC) for verification.
- Gain approval from a majority of county assemblies (at least half of the counties).
- Be passed by a majority in both houses of Parliament (the National Assembly and the Senate).
It is important to note that even if an amendment passes through Parliament without a referendum, it still requires approval from the President and must not violate any of the matters specified in Article 255, which include:
- The supremacy of the Constitution.
- The territory of Kenya.
- The sovereignty of the people.
- The national values and principles of governance mentioned in Article 10.
- The Bill of Rights.
- The term of office of the President.
- The independence of the Judiciary and related commissions and independent offices.
- The functions of Parliament.
- The objects, principles, and structure of devolved government.
Amending the Constitution: A Guide to the Process
You may want to see also
Amendments to the term of office of the President
The Constitution of Kenya outlines that the President shall hold office for a term beginning on the date on which the President was sworn in and ending when the next elected President is sworn in. The Constitution also states that a person shall not hold office as President for more than two terms. Each term lasts for five years.
To amend the Constitution of Kenya, a proposed amendment must be enacted in accordance with Article 256 or 257. If an amendment relates to the term of office of the President, it must be approved by a referendum. A referendum requires at least 20% of registered voters in each of at least half of the counties to vote, with a simple majority supporting the amendment.
There are alternative ways to amend the Constitution, such as through a popular initiative, which requires at least one million registered voters to support a proposal to change the Constitution. If successful, the proposal must be submitted to each county assembly for consideration. If a county assembly approves the proposal, it moves closer to becoming law.
It is important to note that amending the Constitution of Kenya is a complex and deliberate process, and any proposals to amend the term of office of the President must follow these outlined procedures.
In recent years, there have been attempts to amend the Constitution to extend the presidential term. In October 2024, a bill was submitted to Kenya's Senate to extend the presidential term to seven years, joining a trend in East Africa where leaders have extended their rule.
Understanding Amendments: Your Vote, Your Voice
You may want to see also
Frequently asked questions
Amendments to the Kenyan Constitution can be made through a parliamentary initiative or a popular initiative. In the former, a Bill is enacted by Parliament and may be approved by the President. In the latter, a proposal is supported by at least one million signatures and is then taken to county assemblies for approval. If either of these initiatives fails, the proposed amendment is submitted to a referendum.
For a referendum to be valid, at least 20% of registered voters in at least half of the counties must vote, and a simple majority must support the amendment.
Changes to the following require a referendum: the supremacy of the Constitution, the territory of Kenya, the sovereignty of the people, national values and principles of governance, the Bill of Rights, the term of office of the President, the independence of the Judiciary, the functions of Parliament, the objects, principles and structure of devolved government, and the provisions of Chapter Sixteen.
Yes, there have been several attempts to amend the 2010 Constitution of Kenya, but none have succeeded so far. One notable example is the initiative to change the date of general elections from August to December, which failed to obtain the required 2/3 support in the National Assembly.
In the past, governments have rushed constitutional amendment Bills through Parliament without much discussion. Some important changes require not just a majority in Parliament but also a referendum, as outlined above.
