Kenya

LAWS OF KENYA

THE CONSTITUTION OF KENYA, 2010

Published by the National Council for Law Reporting

with the Authority of the Attorney-General

www.kenyalaw.org

Constitution of Kenya, 2010

THE CONSTITUTION OF KENYA, 2010

ARRANGEMENT OF ARTICLES

PREAMBLE

CHAPTER ONE—SOVEREIGNTY OF THE PEOPLE AND

SUPREMACY OF THIS CONSTITUTION

1—Sovereignty of the people.

2—Supremacy of this Constitution.

3—Defence of this Constitution.

CHAPTER TWO—THE REPUBLIC

4—Declaration of the Republic.

5—Territory of Kenya.

6—Devolution and access to services.

7—National, official and other languages.

8—State and religion.

9—National symbols and national days.

10—National values and principles of governance.

11—Culture.

CHAPTER THREE—CITIZENSHIP

12—Entitlements of citizens.

13—Retention and acquisition of citizenship.

14—Citizenship by birth.

15—Citizenship by registration.

16—Dual citizenship.

17—Revocation of citizenship.

18—Legislation on citizenship.

CHAPTER FOUR—THE BILL OF RIGHTS

PART 1—GENERAL PROVISIONS RELATING TO THE BILL OF RIGHTS

19—Rights and fundamental freedoms.

20—Application of Bill of Rights.

21—Implementation of rights and fundamental freedoms.

22—Enforcement of Bill of Rights.

23—Authority of courts to uphold and enforce the Bill of Rights.

24—Limitation of rights or fundamental freedoms.

25— Fundamental Rights and freedoms that may not be limited.

Constitution of Kenya, 2010

PART 2—RIGHTS AND FUNDAMENTAL FREEDOMS

26—Right to life.

27—Equality and freedom from discrimination.

28—Human dignity.

29—Freedom and security of the person.

30—Slavery, servitude and forced labour.

31—Privacy.

32—Freedom of conscience, religion, belief and opinion.

33—Freedom of expression.

34—Freedom of the media.

35—Access to information.

36—Freedom of association.

37—Assembly, demonstration, picketing and petition.

38—Political rights.

39—Freedom of movement and residence.

40—Protection of right to property.

41—Labour relations.

42—Environment.

43—Economic and social rights.

44—Language and culture.

45—Family.

46—Consumer rights.

47—Fair administrative action.

48—Access to justice.

49—Rights of arrested persons.

50—Fair hearing.

51—Rights of persons detained, held in custody or imprisoned.

PART 3—SPECIFIC APPLICATION OF RIGHTS

52—Interpretation of Part.

53—Children.

54—Persons with disabilities.

55—Youth.

56—Minorities and marginalised groups.

57—Older members of society.

PART 4—STATE OF EMERGENCY

58—State of emergency.

PART 5—KENYA NATIONAL HUMAN RIGHTS AND EQUALITY COMMISSION

59—Kenya National Human Rights and Equality Commission.3

Constitution of Kenya, 2010

CHAPTER FIVE—LAND AND ENVIRONMENT

PART 1—LAND

60—Principles of land policy.

61—Classification of land.

62—Public land.

63—Community land.

64—Private land.

65—Landholding by non-citizens.

66—Regulation of land use and property.

67—National Land Commission.

68—Legislation on land.

PART 2— ENVIRONMENT AND NATURAL RESOURCES

69—Obligations in respect of the environment.

70—Enforcement of environmental rights.

71—Agreements relating to natural resources.

72—Legislation relating to the environment.

CHAPTER SIX—LEADERSHIP AND INTEGRITY

73—Responsibilities of leadership.

74—Oath of office of State officers.

75—Conduct of State officers.

76—Financial probity of State officers.

77—Restriction on activities of State officers.

78—Citizenship and leadership.

79—Legislation to establish the ethics and anti-corruption commission.

80—Legislation on leadership.

CHAPTER SEVEN—REPRESENTATION OF THE PEOPLE

PART 1—ELECTORAL SYSTEM AND PROCESS

81—General principles for the electoral system.

82—Legislation on elections.

83—Registration as a voter.

84—Candidates for election and political parties to comply with code of

conduct.

85—Eligibility to stand as an independent candidate.

86—Voting.

87—Electoral disputes.

PART 2—INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION AND

DELIMITATION OF ELECTORAL UNITS

88—Independent Electoral and Boundaries Commission.

89—Delimitation of electoral units.

90—Allocation of party list seats.

PART 3—POLITICAL PARTIES

Constitution of Kenya, 2010

91—Basic requirements for political parties.

92—Legislation on political parties.

CHAPTER EIGHT—THE LEGISLATURE

PART 1—ESTABLISHMENT AND ROLE OF PARLIAMENT

93—Establishment of Parliament.

94—Role of Parliament.

95—Role of the National Assembly.

96—Role of the Senate.

PART 2—COMPOSITION AND MEMBERSHIP OF PARLIAMENT

97—Membership of the National Assembly.

98—Membership of the Senate.

99—Qualifications and disqualifications for election as member of

Parliament.

100—Promotion of representation of marginalised groups.

101—Election of members of Parliament.

102—Term of Parliament.

103—Vacation of office of member of Parliament.

104—Right of recall.

105—Determination of questions of membership.

PART 3—OFFICES OF PARLIAMENT

106—Speakers and Deputy Speakers of Parliament.

107—Presiding in Parliament.

108—Party leaders.

PART 4—PROCEDURES FOR ENACTING LEGISLATION

109—Exercise of legislative powers.

110—Bills concerning county government.

111—Special Bills concerning county governments.

112—Ordinary Bills concerning county governments.

113—Mediation committees.

114—Money Bills.

115—Presidential assent and referral

116—Coming into force of laws.

PART 5—PARLIAMENT’S GENERAL PROCEDURES AND RULES

117—Powers, privileges and immunities.

118—Public access and participation.

119—Right to petition Parliament.

120—Official languages of Parliament.

121—Quorum.

122—Voting in Parliament.

123—Decisions of Senate.

124—Committees and Standing Orders.

125—Power to call for evidence.5

Constitution of Kenya, 2010

PART 6—MISCELLANEOUS

126—Location of sittings of Parliament.

127—Parliamentary Service Commission.

128—Clerks and staff of Parliament.

CHAPTER NINE—THE EXECUTIVE

PART 1—PRINCIPLES AND STRUCTURE OF THE NATIONAL EXECUTIVE

129—Principles of executive authority.

130—The National Executive.

PART 2—THE PRESIDENT AND DEPUTY PRESIDENT

131—Authority of the President.

132—Functions of the President.

133—Power of mercy.

134—Exercise of presidential powers during temporary incumbency.

135—Decisions of the President.

136—Election of the President.

137—Qualifications and disqualifications for election as President.

138—Procedure at presidential election.

139—Death before assuming office.

140—Questions as to validity of presidential election.

141—Assumption of office of President.

142—Term of office of President.

143—Protection from legal proceedings.

144—Removal of President on grounds of incapacity.

145—Removal of President by impeachment.

146—Vacancy in the office of President.

147—Functions of the Deputy President.

148—Election and swearing-in of Deputy President.

149—Vacancy in the office of Deputy President.

150—Removal of Deputy President.

151—Remuneration and benefits of President and Deputy President.

PART 3—THE CABINET

152—Cabinet.

153—Decisions, responsibility and accountability of the Cabinet.

153—Secretary to the Cabinet.

155—Principal Secretaries.

PART 4—OTHER OFFICES

156—Attorney-General.

157—Director of Public Prosecutions.

158—Removal and resignation of Director of Public Prosecutions.

Constitution of Kenya, 2010

CHAPTER TEN—JUDICIARY

PART 1—JUDICIAL AUTHORITY AND LEGAL SYSTEM

159—Judicial authority.

160—Independence of the Judiciary.

161—Judicial offices and officers.

162—System of courts.

PART 2—SUPERIOR COURTS

163—Supreme Court.

164—Court of Appeal.

165—High Court.

166—Appointment of Chief Justice, Deputy Chief Justice and other

judges.

167—Tenure of office of the Chief Justice and other judges.

168—Removal from office.

PART 3—SUBORDINATE COURTS

169—Subordinate courts.

170—Kadhis’ Courts.

PART 4—JUDICIAL SERVICE COMMISSION

171—Establishment of the Judicial Service Commission.

172—Functions of the Judicial Service Commission.

173—Judiciary Fund.

CHAPTER ELEVEN—DEVOLVED GOVERNMENT

PART 1—OBJECTS AND PRINCIPLES OF DEVOLVED GOVERNMENT

174—Objects of devolution.

175—Principles of devolved government.

PART 2—COUNTY GOVERNMENTS

176—County governments.

177—Membership of county assembly.

178—Speaker of a county assembly.

179—County executive committees.

180—Election of county governor and deputy county governor.

181—Removal of a county government.

182—Vacancy in the office of county governor.

183—Functions of county executive committees.

184—Urban areas and cities.

185—Legislative authority of county assemblies.

PART 3—FUNCTIONS AND POWERS OF COUNTY GOVERNMENTS

186—Respective functions and powers of national and county

governments.

187—Transfer of functions and powers between levels of government.7

Constitution of Kenya, 2010

PART 4—THE BOUNDARIES OF COUNTIES

188—Boundaries of counties.

PART 5—RELATIONSHIPS BETWEEN GOVERNMENTS

189—Cooperation between national and county governments.

190—Support for county governments.

191—Conflict of laws.

PART 6—SUSPENSION OF COUNTY GOVERNMENTS

192—Suspension of county government.

PART 7—GENERAL

193—Qualifications for election as member of county assembly.

194—Vacation of office of member of county assembly.

195—County assembly power to summon witnesses.

196—Public participation and county assembly powers, privileges and

immunities.

197—County assembly gender balance and diversity.

198—County government during transition.

199—Publication of county legislation.

200— Legislation on Chapter.

CHAPTER TWELVE—PUBLIC FINANCE

PART I—PRINCIPLES AND FRAMEWORK OF PUBLIC FINANCE

201—Principles of public finance.

202—Equitable sharing of national revenue.

203—Equitable share and other financial laws.

204—Equalisation Fund.

205—Consultation on financial legislation affecting counties.

PART 2—OTHER PUBLIC FUNDS

206—Consolidated Fund and other public funds.

207—Revenue Funds for county governments.

208—Contingencies Fund.

PART 3—REVENUE-RAISING POWERS AND THE PUBLIC DEBT

209—Power to impose taxes and charges.

210—Imposition of tax.

211—Borrowing by national government.

212—Borrowing by counties.

213—Loan guarantees by national government.

214—Public debt.

PART 4—REVENUE ALLOCATION

215—Commission on Revenue Allocation.

Constitution of Kenya, 2010

216—Functions of the Commission on Revenue Allocation.

217—Division of revenue.

218—Annual Division and Allocation of Revenue Bills.

219—Transfer of equitable share.

PART 5—BUDGETS AND SPENDING

220—Form, content and timing of budgets.

221—Budget estimates and annual Appropriation Bill.

222—Expenditure before annual budget is passed.

223—Supplementary appropriation.

224—County appropriation Bills.

PART 6—CONTROL OF PUBLIC MONEY

225—Financial control.

226—Accounts and audit of public entities.

227—Procurement of public goods and services.

PART 7— FINANCIAL OFFICERS AND INSTITUTIONS

228—Controller of Budget.

229—Auditor-General.

230—Salaries and Remuneration Commission.

231—Central Bank of Kenya.

CHAPTER THIRTEEN—THE PUBLIC SERVICE

PART 1—VALUES AND PRINCIPLES OF PUBLIC SERVICE

232—Values and principles of public service.

PART 2—THE PUBLIC SERVICE COMMISSION

233—The Public Service Commission.

234—Functions and powers of the Public Service Commission.

235—Staffing of county governments.

236—Protection of public officers.

PART 3—TEACHERS SERVICE COMMISSION

237—Teachers Service Commission.

PART 1—NATIONAL SECURITY ORGANS

238—Principles of national security.

239—National security organs.

240—Establishment of the National Security Council.

PART 2—THE KENYA DEFENCE FORCES

241—Establishment of Defence Forces and Defence Council.9

Constitution of Kenya, 2010

PART 3—THE NATIONAL INTELLIGENCE SERVICE

242—Establishment of National Intelligence Service.

PART 4—THE NATIONAL POLICE SERVICE

243—Establishment of the National Police Service.

244—Objects and functions of the National Police Service.

245—Command of the National Police Service.

246—National Police Service Commission.

247—Other police services.

OFFICES

248—Application of Chapter.

249—Objects, authority and funding of commissions and independent

offices.

250—Composition, appointment and terms of office.

251—Removal from office.

252—General functions and powers.

253—Incorporation of commissions and independent offices.

254—Reporting by commissions and independent offices.

255—Amendment of this Constitution.

256—Amendment by parliamentary initiative.

257—Amendment by popular initiative.

258—Enforcement of this Constitution.

259—Construing this Constitution.

260—Interpretation.

PROVISIONS

261—Consequential legislation.

262—Transitional and consequential provisions.

263—Effective Date.

264—Repeal of previous constitution.

SCHEDULES

First Schedule Counties

Second Schedule National symbols

Third Schedule National Oaths and affirmations

Fourth Schedule Distribution of functions between National and the

county governments

Fifth Schedule Legislation to be enacted by Parliament

Sixth Schedule Transitional and consequential provisions

Constitution of Kenya, 2010

PREAMBLE

We, the people of Kenya—

ACKNOWLEDGING the supremacy of the Almighty God of all

creation:

HONOURING those who heroically struggled to bring freedom

and justice to our land:

PROUD of our ethnic, cultural and religious diversity, and

determined to live in peace and unity as one indivisible sovereign

nation:

RESPECTFUL of the environment, which is our heritage, and

determined to sustain it for the benefit of future generations:

COMMITTED to nurturing and protecting the well-being of the

individual, the family, communities and the nation:

RECOGNISING the aspirations of all Kenyans for a government

based on the essential values of human rights, equality, freedom,

democracy, social justice and the rule of law:

EXERCISING our sovereign and inalienable right to determine

the form of governance of our country and having participated fully in

the making of this Constitution:

ADOPT, ENACT and give this Constitution to ourselves and to

our future generations.

GOD BLESS KENYA11

Constitution of Kenya, 2010

THE CONSTITUTION OF KENYA

CHAPTER ONE—SOVEREIGNTY OF THE PEOPLE AND

SUPREMACY OF THIS CONSTITUTION

Sovereignty of the people.

1.(1) All sovereign power belongs to the people of Kenya and

shall be exercised only in accordance with this Constitution.

(2) The people may exercise their sovereign power either directly

or through their democratically elected representatives.

(3) Sovereign power under this Constitution is delegated to the

following State organs, which shall perform their functions in

accordance with this Constitution—

(a) Parliament and the legislative assemblies in the county

governments;

(b) the national executive and the executive structures in the

county governments; and

(c) the Judiciary and independent tribunals.

(4) The sovereign power of the people is exercised at—

(a) the national level; and

(b) the county level.

Supremacy of this Constitution.

2.(1) This Constitution is the supreme law of the Republic and

binds all persons and all State organs at both levels of government.

(2) No person may claim or exercise State authority except as

authorised under this Constitution.

(3) The validity or legality of this Constitution is not subject to

challenge by or before any court or other State organ.

(4) Any law, including customary law, that is inconsistent with this

Constitution is void to the extent of the inconsistency, and any act or

omission in contravention of this Constitution is invalid.

(5) The general rules of international law shall form part of the

law of Kenya.

Constitution of Kenya, 2010

(6) Any treaty or convention ratified by Kenya shall form part of

the law of Kenya under this Constitution.

Defence of this Constitution.

3.(1) Every person has an obligation to respect, uphold and

defend this Constitution.

(2) Any attempt to establish a government otherwise than in

compliance with this Constitution is unlawful.

CHAPTER TWO—THE REPUBLIC

Declaration of the Republic.

4.(1) Kenya is a sovereign Republic.

(2) The Republic of Kenya shall be a multi-party democratic State

founded on the national values and principles of governance referred

to in Article 10.

Territory of Kenya.

5.Kenya consists of the territory and territorial waters comprising

Kenya on the effective date, and any additional territory and territorial

waters as defined by an Act of Parliament.

Devolution and access to services.

6.(1) The territory of Kenya is divided into the counties specified

in the First Schedule.

(2) The governments at the national and county levels are distinct

and inter-dependent and shall conduct their mutual relations on the

basis of consultation and cooperation.

(3) A national State organ shall ensure reasonable access to its

services in all parts of the Republic, so far as it is appropriate to do so

having regard to the nature of the service.

National, official and other languages.

7.(1) The national language of the Republic is Kiswahili.

(2) The official languages of the Republic are Kiswahili and

English.

(3) The State shall—

(a) promote and protect the diversity of language of the people of

Kenya; and 13

Constitution of Kenya, 2010

(b) promote the development and use of indigenous languages,

Kenyan Sign language, Braille and other communication

formats and technologies accessible to persons with

disabilities.

State and Religion.

8.There shall be no State religion.

National symbols and national days.

9.(1) The national symbols of the Republic are—

(a) the national flag;

(b) the national anthem;

(c) the coat of arms; and

(d) the public seal.

(2) The national symbols are as set out in the Second Schedule.

(3) The national days are—

(a) Madaraka Day, to be observed on 1st June;

(b) Mashujaa Day, to be observed on 20th October; and

(c) Jamhuri Day, to be observed on 12th December.

(4) A national day shall be a public holiday.

(5) Parliament may enact legislation prescribing other public

holidays, and providing for observance of public holidays.

National values and principles of governance.

10. (1) The national values and principles of governance in this

Article bind all State organs, State officers, public officers and all

persons whenever any of them—

(a) applies or interprets this Constitution;

(b) enacts, applies or interprets any law; or

(c) makes or implements public policy decisions.

(2) The national values and principles of governance include—

Constitution of Kenya, 2010

(a) patriotism, national unity, sharing and devolution of power, the

rule of law, democracy and participation of the people;

(b) human dignity, equity, social justice, inclusiveness, equality,

human rights, non-discrimination and protection of the

marginalised;

(c) good governance, integrity, transparency and accountability;

and

(d) sustainable development.

Culture.

11. (1) This Constitution recognises culture as the foundation of

the nation and as the cumulative civilization of the Kenyan people and

nation.

(2) The State shall—

(a) promote all forms of national and cultural expression through

literature, the arts, traditional celebrations, science,

communication, information, mass media, publications,

libraries and other cultural heritage;

(b) recognise the role of science and indigenous technologies in

the development of the nation; and

(c) promote the intellectual property rights of the people of Kenya.

(3) Parliament shall enact legislation to—

(a) ensure that communities receive compensation or royalties for

the use of their cultures and cultural heritage; and

(b) recognise and protect the ownership of indigenous seeds and

plant varieties, their genetic and diverse characteristics and

their use by the communities of Kenya.

CHAPTER THREE—CITIZENSHIP

Entitlements of citizens.

12. (1) Every citizen is entitled to—

(a) the rights, privileges and benefits of citizenship, subject to the

limits provided or permitted by this Constitution; and

(b) a Kenyan passport and any document of registration or

identification issued by the State to citizens.15

Constitution of Kenya, 2010

(2) A passport or other document referred to in clause (1) ( b) may

be denied, suspended or confiscated only in accordance with an Act of

Parliament that satisfies the criteria referred to in Article 24.

Retention and acquisition of citizenship.

13. (1) Every person who was a citizen immediately before the

effective date retains the same citizenship status as of that date.

(2) Citizenship may be acquired by birth or registration.

(3) Citizenship is not lost through marriage or the dissolution of

marriage.

Citizenship by birth.

14. (1) A person is a citizen by birth if on the day of the person’s

birth, whether or not the person is born in Kenya, either the mother or

father of the person is a citizen.

(2) Clause (1) applies equally to a person born before the

effective date, whether or not the person was born in Kenya, if either

the mother or father of the person is or was a citizen.

(3) Parliament may enact legislation limiting the effect of clauses

(1) and (2) on the descendents of Kenyan citizens who are born

outside Kenya.

(4) A child found in Kenya who is, or appears to be, less than

eight years of age, and whose nationality and parents are not known,

is presumed to be a citizen by birth.

(5) A person who is a Kenyan citizen by birth and who, on the

effective date, has ceased to be a Kenyan citizen because the person

acquired citizenship of another country, is entitled on application to

regain Kenyan citizenship.

Citizenship by registration.

15. (1) A person who has been married to a citizen for a period of

at least seven years is entitled on application to be registered as a

citizen.

(2) A person who has been lawfully resident in Kenya for a

continuous period of at least seven years, and who satisfies the

conditions prescribed by an Act of Parliament, may apply to be

registered as a citizen.

(3) A child who is not a citizen, but is adopted by a citizen, is

entitled on application to be registered as a citizen.

Constitution of Kenya, 2010

(4) Parliament shall enact legislation establishing conditions on

which citizenship may be granted to individuals who are citizens of

other countries.

(5) This Article applies to a person as from the effective date, but

any requirements that must be satisfied before the person is entitled to

be registered as a citizen shall be regarded as having been satisfied

irrespective of whether the person satisfied them before or after the

effective date, or partially before, and partially after, the effective date.

Dual citizenship.

16. A citizen by birth does not lose citizenship by acquiring the

citizenship of another country.

Revocation of citizenship.

17. (1) If a person acquired citizenship by registration, the

citizenship may be revoked if the person —

(a) acquired the citizenship by fraud, false representation or

concealment of any material fact;

(b) has, during any war in which Kenya was engaged, unlawfully

traded or communicated with an enemy or been engaged in

or associated with any business that was knowingly carried

on in such a manner as to assist an enemy in that war;

(c) has, within five years after registration, been convicted of an

offence and sentenced to imprisonment for a term of three

years or longer; or

(d) has, at any time after registration, been convicted of treason,

or of an offence for which—

(i) a penalty of at least seven years imprisonment may be

imposed; or

(ii) a more severe penalty may be imposed.

(2) The citizenship of a person who was presumed to be a citizen

by birth, as contemplated in Article 14 (4), may be revoked if—

(a) the citizenship was acquired by fraud, false representation or

concealment of any material fact by any person;

(b) the nationality or parentage of the person becomes known,

and reveals that the person was a citizen of another country;

or17

Constitution of Kenya, 2010

(c) the age of the person becomes known, and reveals that the

person was older than eight years when found in Kenya.

Legislation on citizenship.

18. Parliament shall enact legislation—

(a) prescribing procedures by which a person may become a

citizen;

(b) governing entry into and residence in Kenya;

(c) providing for the status of permanent residents;

(d) providing for voluntary renunciation of citizenship;

(e) prescribing procedures for revocation of citizenship;

(f) prescribing the duties and rights of citizens; and

(g) generally giving effect to the provisions of this Chapter.

CHAPTER FOUR—THE BILL OF RIGHTS

PART 1—GENERAL PROVISIONS RELATING TO THE BILL OF RIGHTS

Rights and fundamental freedoms.

19. (1) The Bill of Rights is an integral part of Kenya’s democratic

state and is the framework for social, economic and cultural policies.

(2) The purpose of recognising and protecting human rights and

fundamental freedoms is to preserve the dignity of individuals and

communities and to promote social justice and the realisation of the

potential of all human beings.

(3) The rights and fundamental freedoms in the Bill of Rights—

(a) belong to each individual and are not granted by the State;

(b) do not exclude other rights and fundamental freedoms not in

the Bill of Rights, but recognised or conferred by law, except

to the extent that they are inconsistent with this Chapter; and

(c) are subject only to the limitations contemplated in this

Constitution.

Application of Bill of Rights.

20. (1) The Bill of Rights applies to all law and binds all State

organs and all persons.

Constitution of Kenya, 2010

(2) Every person shall enjoy the rights and fundamental freedoms

in the Bill of Rights to the greatest extent consistent with the nature of

the right or fundamental freedom.

(3) In applying a provision of the Bill of Rights, a court shall—

(a) develop the law to the extent that it does not give effect to a

right or fundamental freedom; and

(b) adopt the interpretation that most favours the enforcement of

a right or fundamental freedom.

(4) In interpreting the Bill of Rights, a court, tribunal or other

authority shall promote—

(a) the values that underlie an open and democratic society

based on human dignity, equality, equity and freedom; and

(b) the spirit, purport and objects of the Bill of Rights.

(5) In applying any right under Article 43, if the State claims that it

does not have the resources to implement the right, a court, tribunal or

other authority shall be guided by the following principles—

(a) it is the responsibility of the State to show that the resources

are not available;

(b) in allocating resources, the State shall give priority to ensuring

the widest possible enjoyment of the right or fundamental

freedom having regard to prevailing circumstances, including

the vulnerability of particular groups or individuals; and

(c) the court, tribunal or other authority may not interfere with a

decision by a State organ concerning the allocation of

available resources, solely on the basis that it would have

reached a different conclusion.

Implementation of rights and fundamental freedoms.

21. (1) It is a fundamental duty of the State and every State organ

to observe, respect, protect, promote and fulfil the rights and

fundamental freedoms in the Bill of Rights.

(2) The State shall take legislative, policy and other measures,

including the setting of standards, to achieve the progressive

realisation of the rights guaranteed under Article 43.

(3) All State organs and all public officers have the duty to

address the needs of vulnerable groups within society, including

women, older members of society, persons with disabilities, children, 19

Constitution of Kenya, 2010

youth, members of minority or marginalised communities, and

members of particular ethnic, religious or cultural communities.

(4) The State shall enact and implement legislation to fulfil its

international obligations in respect of human rights and fundamental

freedoms.

Enforcement of Bill of Rights.

22. (1) Every person has the right to institute court proceedings

claiming that a right or fundamental freedom in the Bill of Rights has

been denied, violated or infringed, or is threatened.

(2) In addition to a person acting in their own interest, court

proceedings under clause (1) may be instituted by—

(a) a person acting on behalf of another person who cannot act

in their own name;

(b) a person acting as a member of, or in the interest of, a group

or class of persons;

(c) a person acting in the public interest; or

(d) an association acting in the interest of one or more of its

members.

(3) The Chief Justice shall make rules providing for the court

proceedings referred to in this Article, which shall satisfy the criteria

that—

(a) the rights of standing provided for in clause (2) are fully

facilitated;

(b) formalities relating to the proceedings, including

commencement of the proceedings, are kept to the

minimum, and in particular that the court shall, if necessary,

entertain proceedings on the basis of informal documentation;

(c) no fee may be charged for commencing the proceedings;

(d) the court, while observing the rules of natural justice, shall not

be unreasonably restricted by procedural technicalities; and

(e) an organisation or individual with particular expertise may,

with the leave of the court, appear as a friend of the court.

(4) The absence of rules contemplated in clause (3) does not limit

the right of any person to commence court proceedings under this

Article, and to have the matter heard and determined by a court.

Constitution of Kenya, 2010

Authority of courts to uphold and enforce the Bill of Rights.

23. (1) The High Court has jurisdiction, in accordance with Article

165, to hear and determine applications for redress of a denial,

violation or infringement of, or threat to, a right or fundamental freedom

in the Bill of Rights.

(2) Parliament shall enact legislation to give original jurisdiction in

appropriate cases to subordinate courts to hear and determine

applications for redress of a denial, violation or infringement of, or

threat to, a right or fundamental freedom in the Bill of Rights.

(3) In any proceedings brought under Article 22, a court may

grant appropriate relief, including—

(a) a declaration of rights;

(b) an injunction;

(c) a conservatory order;

(d) a declaration of invalidity of any law that denies, violates,

infringes, or threatens a right or fundamental freedom in the

Bill of Rights and is not justified under Article 24;

(e) an order for compensation; and

(f)an order of judicial review.

Limitation of rights and fundamental freedoms.

24. (1) A right or fundamental freedom in the Bill of Rights shall

not be limited except by law, and then only to the extent that the

limitation is reasonable and justifiable in an open and democratic

society based on human dignity, equality and freedom, taking into

account all relevant factors, including—

(a) the nature of the right or fundamental freedom;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the need to ensure that the enjoyment of rights and

fundamental freedoms by any individual does not prejudice

the rights and fundamental freedoms of others; and

(e) the relation between the limitation and its purpose and

whether there are less restrictive means to achieve the

purpose. 21

Constitution of Kenya, 2010

(2) Despite clause (1), a provision in legislation limiting a right or

fundamental freedom—

(a) in the case of a provision enacted or amended on or after the

effective date, is not valid unless the legislation specifically

expresses the intention to limit that right or fundamental

freedom, and the nature and extent of the limitation;

(b) shall not be construed as limiting the right or fundamental

freedom unless the provision is clear and specific about the

right or freedom to be limited and the nature and extent of the

limitation; and

(c) shall not limit the right or fundamental freedom so far as to

derogate from its core or essential content.

(3) The State or a person seeking to justify a particular limitation

shall demonstrate to the court, tribunal or other authority that the

requirements of this Article have been satisfied.

(4) The provisions of this Chapter on equality shall be qualified to

the extent strictly necessary for the application of Muslim law before

the Kadhis’ courts, to persons who profess the Muslim religion, in

matters relating to personal status, marriage, divorce and inheritance.

(5) Despite clause (1) and (2), a provision in legislation may limit

the application of the rights or fundamental freedoms in the following

provisions to persons serving in the Kenya Defence Forces or the

National Police Service—

(a) Article 31—Privacy;

(b) Article 36—Freedom of association;

(c) Article 37—Assembly, demonstration, picketing and petition;

(d) Article 41—Labour relations;

(e) Article 43—Economic and social rights; and

(f) Article 49—Rights of arrested persons.

Fundamental Rights and freedoms that may not be limited.

25. Despite any other provision in this Constitution, the following

rights and fundamental freedoms shall not be limited—

(a) freedom from torture and cruel, inhuman or degrading

treatment or punishment;

Constitution of Kenya, 2010

(b) freedom from slavery or servitude;

(c) the right to a fair trial; and

(d) the right to an order of habeas corpus.

PART 2—RIGHTS AND FUNDAMENTAL FREEDOMS

Right to life.

26. (1) Every person has the right to life.

(2) The life of a person begins at conception.

(3) A person shall not be deprived of life intentionally, except to

the extent authorised by this Constitution or other written law.

(4) Abortion is not permitted unless, in the opinion of a trained

health professional, there is need for emergency treatment, or the life

or health of the mother is in danger, or if permitted by any other written

law.

Equality and freedom from discrimination.

27. (1) Every person is equal before the law and has the right to

equal protection and equal benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and

fundamental freedoms.

(3) Women and men have the right to equal treatment, including

the right to equal opportunities in political, economic, cultural and

social spheres.

(4) The State shall not discriminate directly or indirectly against

any person on any ground, including race, sex, pregnancy, marital

status, health status, ethnic or social origin, colour, age, disability,

religion, conscience, belief, culture, dress, language or birth.

(5) A person shall not discriminate directly or indirectly against

another person on any of the grounds specified or contemplated in

clause (4).

(6) To give full effect to the realisation of the rights guaranteed

under this Article, the State shall take legislative and other measures,

including affirmative action programmes and policies designed to

redress any disadvantage suffered by individuals or groups because of

past discrimination. 23

Constitution of Kenya, 2010

(7) Any measure taken under clause (6) shall adequately provide

for any benefits to be on the basis of genuine need.

(8) In addition to the measures contemplated in clause (6), the

State shall take legislative and other measures to implement the

principle that not more than two-thirds of the members of elective or

appointive bodies shall be of the same gender.

Human dignity.

28. Every person has inherent dignity and the right to have that

dignity respected and protected.

Freedom and security of the person.

29. Every person has the right to freedom and security of the

person, which includes the right not to be—

(a) deprived of freedom arbitrarily or without just cause;

(b) detained without trial, except during a state of emergency, in

which case the detention is subject to Article 58;

(c) subjected to any form of violence from either public or private

sources;

(d) subjected to torture in any manner, whether physical or

psychological;

(e) subjected to corporal punishment; or

(f) treated or punished in a cruel, inhuman or degrading manner.

Slavery, servitude and forced labour .

30. (1) A person shall not be held in slavery or servitude.

(2) A person shall not be required to perform forced labour.

Privacy.

31. Every person has the right to privacy, which includes the right

not to have—

(a) their person, home or property searched;

(b) their possessions seized;

(c) information relating to their family or private affairs

unnecessarily required or revealed; or

(d) the privacy of their communications infringed.

Constitution of Kenya, 2010

Freedom of conscience, religion, belief and opinion.

32. (1) Every person has the right to freedom of conscience,

religion, thought, belief and opinion.

(2) Every person has the right, either individually or in community

with others, in public or in private, to manifest any religion or belief

through worship, practice, teaching or observance, including

observance of a day of worship.

(3) A person may not be denied access to any institution,

employment or facility, or the enjoyment of any right, because of the

person’s belief or religion.

(4) A person shall not be compelled to act, or engage in any act,

that is contrary to the person’s belief or religion.

Freedom of expression.

33. (1) Every person has the right to freedom of expression,

which includes—

(a) freedom to seek, receive or impart information or ideas;

(b) freedom of artistic creativity; and

(c) academic freedom and freedom of scientific research.

(2) The right to freedom of expression does not extend to—

(a) propaganda for war;

(b) incitement to violence;

(c) hate speech; or

(d) advocacy of hatred that—

(i) constitutes ethnic incitement, vilification of others or

incitement to cause harm; or

(ii) is based on any ground of discrimination specified or

contemplated in Article 27 (4).

(3) In the exercise of the right to freedom of expression, every

person shall respect the rights and reputation of others.

Freedom of the media .

34. (1) Freedom and independence of electronic, print and all

other types of media is guaranteed, but does not extend to any

expression specified in Article 33 (2).25

Constitution of Kenya, 2010

(2) The State shall not—

(a) exercise control over or interfere with any person engaged in

broadcasting, the production or circulation of any publication

or the dissemination of information by any medium; or

(b) penalise any person for any opinion or view or the content of

any broadcast, publication or dissemination.

(3) Broadcasting and other electronic media have freedom of

establishment, subject only to licensing procedures that—

(a) are necessary to regulate the airwaves and other forms of

signal distribution; and

(b) are independent of control by government, political interests

or commercial interests.

(4) All State-owned media shall—

(a) be free to determine independently the editorial content of

their broadcasts or other communications;

(b) be impartial; and

(c) afford fair opportunity for the presentation of divergent views

and dissenting opinions.

(5) Parliament shall enact legislation that provides for the

establishment of a body, which shall—

(a) be independent of control by government, political interests or

commercial interests;

(b) reflect the interests of all sections of the society; and

(c) set media standards and regulate and monitor compliance

with those standards.

Access to information.

35. (1) Every citizen has the right of access to—

(a) information held by the State; and

(b) information held by another person and required for the

exercise or protection of any right or fundamental freedom.

(2) Every person has the right to the correction or deletion of

untrue or misleading information that affects the person.

Constitution of Kenya, 2010

(3) The State shall publish and publicise any important

information affecting the nation.

Freedom of association.

36. (1) Every person has the right to freedom of association,

which includes the right to form, join or participate in the activities of an

association of any kind.

(2) A person shall not be compelled to join an association of any

kind.

(3) Any legislation that requires registration of an association of

any kind shall provide that—

(a) registration may not be withheld or withdrawn unreasonably;

and

(b) there shall be a right to have a fair hearing before a

registration is cancelled.

Assembly, demonstration, picketing and petition.

37. Every person has the right, peaceably and unarmed, to

assemble, to demonstrate, to picket, and to present petitions to public

authorities.

Political rights.

38. (1) Every citizen is free to make political choices, which

includes the right—

(a) to form, or participate in forming, a political party;

(b) to participate in the activities of, or recruit members for, a

political party; or

(c) to campaign for a political party or cause.

(2) Every citizen has the right to free, fair and regular elections

based on universal suffrage and the free expression of the will of the

electors for—

(a) any elective public body or office established under this

Constitution; or

(b) any office of any political party of which the citizen is a

member.

(3) Every adult citizen has the right, without unreasonable

restrictions—27

Constitution of Kenya, 2010

(a) to be registered as a voter;

(b) to vote by secret ballot in any election or referendum; and

(c) to be a candidate for public office, or office within a political

party of which the citizen is a member and, if elected, to hold

office.

Freedom of movement and residence.

39. (1) Every person has the right to freedom of movement.

(2) Every person has the right to leave Kenya.

(3) Every citizen has the right to enter, remain in and reside

anywhere in Kenya.

Protection of right to property.

40. (1) Subject to Article 65, every person has the right, either

individually or in association with others, to acquire and own property

—

(a) of any description; and

(b) in any part of Kenya.

(2) Parliament shall not enact a law that permits the State or any

person—

(a) to arbitrarily deprive a person of property of any description or

of any interest in, or right over, any property of any

description; or

(b) to limit, or in any way restrict the enjoyment of any right under

this Article on the basis of any of the grounds specified or

contemplated in Article 27 (4).

(3) The State shall not deprive a person of property of any

description, or of any interest in, or right over, property of any

description, unless the deprivation—

(a) results from an acquisition of land or an interest in land or a

conversion of an interest in land, or title to land, in

accordance with Chapter Five; or

(b) is for a public purpose or in the public interest and is carried

out in accordance with this Constitution and any Act of

Parliament that—

Constitution of Kenya, 2010

(i) requires prompt payment in full, of just compensation to

the person; and

(ii) allows any person who has an interest in, or right over,

that property a right of access to a court of law.

(4) Provision may be made for compensation to be paid to

occupants in good faith of land acquired under clause (3) who may not

hold title to the land.

(5) The State shall support, promote and protect the intellectual

property rights of the people of Kenya.

(6) The rights under this Article do not extend to any property that

has been found to have been unlawfully acquired.

Labour relations.

41. (1) Every person has the right to fair labour practices.

(2) Every worker has the right—

(a) to fair remuneration;

(b) to reasonable working conditions;

(c) to form, join or participate in the activities and programmes of

a trade union; and

(d) to go on strike.

(3) Every employer has the right—

(e) to form and join an employers organisation; and

(f) to participate in the activities and programmes of an employers

organisation.

(4) Every trade union and every employers’ organisation has the

right—

(a) to determine its own administration, programmes and

activities;

(b) to organise; and

(c) to form and join a federation.

(5) Every trade union, employers’ organisation and employer has

the right to engage in collective bargaining.29

Constitution of Kenya, 2010

Environment.

42. Every person has the right  to a clean and healthy

environment, which includes the right—

(a) to have the environment protected for the benefit of present

and future generations through legislative and other

measures, particularly those contemplated in Article 69; and

(b) to have obligations relating to the environment fulfilled under

Article 70.

Economic and social rights.

43. (1) Every person has the right—

(a) to the highest attainable standard of health, which includes

the right to health care services, including reproductive health

care;

(b) to accessible and adequate housing, and to reasonable

standards of sanitation;

(c) to be free from hunger, and to have adequate food of

acceptable quality;

(d) to clean and safe water in adequate quantities;

(e) to social security; and

(f) to education.

(2) A person shall not be denied emergency medical treatment.

(3) The State shall provide appropriate social security to persons

who are unable to support themselves and their dependants.

Language and culture.

44. (1) Every person has the right to use the language, and to

participate in the cultural life, of the person’s choice.

(2) A person belonging to a cultural or linguistic community has

the right, with other members of that community—

(a) to enjoy the person’s culture and use the person’s language;

or

(b) to form, join and maintain cultural and linguistic associations

and other organs of civil society.

(3) A person shall not compel another person to perform, observe

or undergo any cultural practice or rite.

Constitution of Kenya, 2010

Family.

45. (1) The family is the natural and fundamental unit of society

and the necessary basis of social order, and shall enjoy the recognition

and protection of the State.

(2) Every adult  has the right to marry a person of the opposite

sex, based on the free consent of the parties.

(3) Parties to a marriage are entitled to equal rights at the time of

the marriage, during the marriage and at the dissolution of the

marriage.

(4) Parliament shall enact legislation that recognises—

(a) marriages concluded under any tradition, or system of

religious, personal or family law; and

(b) any system of personal and family law under any tradition, or

adhered to by persons professing a particular religion,

to the extent that any such marriages or systems of law are consistent

with this Constitution.

Consumer rights.

46. (1) Consumers have the right—

(a) to goods and services of reasonable quality;

(b) to the information necessary for them to gain full benefit from

goods and services;

(c) to the protection of their health, safety, and economic

interests; and

(d) to compensation for loss or injury arising from defects in

goods or services.

(2) Parliament shall enact legislation to provide for consumer

protection and for fair, honest and decent advertising.

(3) This Article applies to goods and services offered by public

entities or private persons.

Fair administrative action.

47. (1) Every person has the right to administrative action that is

expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is 31

Constitution of Kenya, 2010

likely to be adversely affected by administrative action, the person has

the right to be given written reasons for the action.

(3) Parliament shall enact legislation to give effect to the rights in

clause (1) and that legislation shall—

(a) provide for the review of administrative action by a court or, if

appropriate, an independent and impartial tribunal; and

(b) promote efficient administration.

Access to justice.

48. The State shall ensure access to justice for all persons and, if

any fee is required, it shall be reasonable and shall not impede access

to justice.

Rights of arrested persons.

49. (1) An arrested person has the right—

(a) to be informed promptly, in language that the person

understands, of—

(i) the reason for the arrest;

(ii) the right to remain silent; and

(iii) the consequences of not remaining silent;

(b) to remain silent;

(c) to communicate with an advocate, and other persons whose

assistance is necessary;

(d) not to be compelled to make any confession or admission that

could be used in evidence against the person;

(e) to be held separately from persons who are serving a

sentence;

(f) to be brought before a court as soon as reasonably possible,

but not later than—

(i) twenty-four hours after being arrested; or

(ii) if the twenty-four hours ends outside ordinary court hours,

or on a day that is not an ordinary court day, the end of

the next court day;

(g) at the first court appearance, to be charged or informed of the

reason for the detention continuing, or to be released; and

Constitution of Kenya, 2010

(h) to be released on bond or bail, on reasonable conditions,

pending a charge or trial, unless there are compelling

reasons not to be released.

(2) A person shall not be remanded in custody for an offence if

the offence is punishable by a fine only or by imprisonment for not

more than six months.

Fair hearing.

50. (1) Every person has the right to have any dispute that can be

resolved by the application of law decided in a fair and public hearing

before a court or, if appropriate, another independent and impartial

tribunal or body.

(2) Every accused person has the right to a fair trial, which

includes the right—

(a) to be presumed innocent until the contrary is proved;

(b) to be informed of the charge, with sufficient detail to answer it;

(c) to have adequate time and facilities to prepare a defence;

(d) to a public trial before a court established under this

Constitution;

(e) to have the trial begin and conclude without unreasonable

delay;

(f) to be present when being tried, unless the conduct of the

accused person makes it impossible for the trial to proceed;

(g) to choose, and be represented by, an advocate, and to be

informed of this right promptly;

(h) to have an advocate assigned to the accused person by the

State and at State expense, if substantial injustice would

otherwise result, and to be informed of this right promptly;

(i) to remain silent, and not to testify during the proceedings;

(j) to be informed in advance of the evidence the prosecution

intends to rely on, and to have reasonable access to that

evidence;

(k) to adduce and challenge evidence;

(l) to refuse to give self-incriminating evidence;33

Constitution of Kenya, 2010

(m) to have the assistance of an interpreter without payment if

the accused person cannot understand the language used at

the trial;

(n) not to be convicted for an act or omission that at the time it

was committed or omitted was not—

(i) an offence in Kenya; or

(ii) a crime under international law;

(o) not to be tried for an offence in respect of an act or omission

for which the accused person has previously been either

acquitted or convicted;

(p) to the benefit of the least severe of the prescribed

punishments for an offence, if the prescribed punishment for

the offence has been changed between the time that the

offence was committed and the time of sentencing; and

(q) if convicted, to appeal to, or apply for review by, a higher court

as prescribed by law.

(3) If this Article requires information to be given to a person, the

information shall be given in language that the person understands.

(4) Evidence obtained in a manner that violates any right or

fundamental freedom in the Bill of Rights shall be excluded if the

admission of that evidence would render the trial unfair, or would

otherwise be detrimental to the administration of justice.

(5) An accused person—

(a) charged with an offence, other than an offence that the court

may try by summary procedures, is entitled during the trial to

a copy of the record of the proceedings of the trial on request;

and

(b) has the right to a copy of the record of the proceedings within

a reasonable period after they are concluded, in return for a

reasonable fee as prescribed by law.

(6) A person who is convicted of a criminal offence may petition

the High Court for a new trial if—

(a) the person’s appeal, if any, has been dismissed by the

highest court to which the person is entitled to appeal, or the

person did not appeal within the time allowed for appeal; and

(b) new and compelling evidence has become available.

Constitution of Kenya, 2010

(7) In the interest of justice, a court may allow an intermediary to

assist a complainant or an accused person to communicate with the

court.

(8) This Article does not prevent the exclusion of the press or

other members of the public from any proceedings if the exclusion is

necessary, in a free and democratic society, to protect witnesses or

vulnerable persons, morality, public order or national security.

(9) Parliament shall enact legislation providing for the protection,

rights and welfare of victims of offences.

Rights of persons detained, held in custody or imprisoned.

51. (1) A person who is detained, held in custody or imprisoned

under the law, retains all the rights and fundamental freedoms in the

Bill of Rights, except to the extent that any particular right or a

fundamental freedom is clearly incompatible with the fact that the

person is detained, held in custody or imprisoned.

(2) A person who is detained or held in custody is entitled to

petition for an order of habeas corpus.

(3) Parliament shall enact legislation that—

(a) provides for the humane treatment of persons detained, held

in custody or imprisoned; and

(b) takes into account the relevant international human rights

instruments.

PART 3— SPECIFIC APPLICATION OF RIGHTS

Interpretation of this Part.

52. (1) This Part elaborates certain rights to ensure greater

certainty as to the application of those rights and fundamental

freedoms to certain groups of persons.

(2) This Part shall not be construed as limiting or qualifying any

right.

Children.

53. (1) Every child has the right—

(a) to a name and nationality from birth;

(b) to free and compulsory basic education;

(c) to basic nutrition, shelter and health care;35

Constitution of Kenya, 2010

(d) to be protected from abuse, neglect, harmful cultural

practices, all forms of violence, inhuman treatment and

punishment, and hazardous or exploitative labour;

(e) to parental care and protection, which includes equal

responsibility of the mother and father to provide for the child,

whether they are married to each other or not; and

(f) not to be detained, except as a measure of last resort, and

when detained, to be held—

(i) for the shortest appropriate period of time; and

(ii) separate from adults and in conditions that take account

of the child’s sex and age.

(2) A child’s best interests are of paramount importance in every

matter concerning the child.

Persons with disabilities.

54. (1) A person with any disability is entitled—

(a) to be treated with dignity and respect and to be addressed

and referred to in a manner that is not demeaning;

(b) to access educational institutions and facilities for persons

with disabilities that are integrated into society to the extent

compatible with the interests of the person;

(c) to reasonable access to all places, public transport and

information;

(d) to use Sign language, Braille or other appropriate means of

communication; and

(e) to access materials and devices to overcome constraints

arising from the person’s disability.

(2) The State shall ensure the progressive implementation of the

principle that at least five percent of the members of the public in

elective and appointive bodies are persons with disabilities.

Youth.

55. The State shall take measures, including affirmative action

programmes, to ensure that the youth—

(a) access relevant education and training;

Constitution of Kenya, 2010

(b) have opportunities to associate, be represented and

participate in political, social, economic and other spheres of

life;

(c) access employment; and

(d) are protected from harmful cultural practices and exploitation.

Minorities and marginalised groups.

56. The State shall put in place affirmative action programmes

designed to ensure that minorities and marginalised groups—

(a) participate and are represented in governance and other

spheres of life;

(b) are provided special opportunities in educational and

economic fields;

(c) are provided special opportunities for access to employment;

(d) develop their cultural values, languages and practices; and

(e) have reasonable access to water, health services and

infrastructure.

Older members of society.

57. The State shall take measures to ensure the rights of older

persons—

(a) to fully participate in the affairs of society;

(b) to pursue their personal development;

(c) to live in dignity and respect and be free from abuse; and

(d) to receive reasonable care and assistance from their family

and the State.

PART 4—STATE OF EMERGENCY

State of emergency.

58. (1) A state of emergency may be declared only under Article

132 (4) (d) and only when—

(a) the State is threatened by war, invasion, general insurrection,

disorder, natural disaster or other public emergency; and

(b) the declaration is necessary to meet the circumstances for

which the emergency is declared.37

Constitution of Kenya, 2010

(2) A declaration of a state of emergency, and any legislation

enacted or other action taken in consequence of the declaration, shall

be effective only—

(a) prospectively; and

(b) for not longer than fourteen days from the date of the

declaration, unless the National Assembly resolves to extend

the declaration.

(3) The National Assembly may extend a declaration of a state of

emergency—

(a) by resolution adopted—

(i) following a public debate in the National Assembly; and

(ii) by the majorities specified in clause (4); and

(b) for not longer than two months at a time.

(4) The first extension of the declaration of a state of emergency

requires a supporting vote of at least two-thirds of all the members of

the National Assembly, and any subsequent extension requires a

supporting vote of at least three-quarters of all the members of the

National Assembly.

(5) The Supreme Court may decide on the validity of—

(a) a declaration of a state of emergency;

(b) any extension of a declaration of a state of emergency; and

(c) any legislation enacted, or other action taken, in consequence

of a declaration of a state of emergency.

(6) Any legislation enacted in consequence of a declaration of a

state of emergency—

(a) may limit a right or fundamental freedom in the Bill of Rights

only to the extent that—

(i) the limitation is strictly required by the emergency; and

(ii) the legislation is consistent with the Republic’s obligations

under international law applicable to a state of

emergency; and

(b) shall not take effect until it is published in the Gazette.

(7) A declaration of a state of emergency, or legislation enacted

Constitution of Kenya, 2010

or other action taken in consequence of any declaration, may not

permit or authorise the indemnification of the State, or of any person,

in respect of any unlawful act or omission.

PART 5— KENYA NATIONAL HUMAN RIGHTS AND EQUALITY COMMISSION

Kenya National Human Rights and Equality Commission.

59. (1) There is established the Kenya National Human Rights

and Equality Commission.

(2) The functions of the Commission are—

(a) to promote respect for human rights and develop a culture of

human rights in the Republic;

(b) to promote gender equality and equity generally and to

coordinate and facilitate gender mainstreaming in national

development;

(c) to promote the protection, and observance of human rights in

public and private institutions;

(d) to monitor, investigate and report on the observance of

human rights in all spheres of life in the Republic, including

observance by the national security organs;

(e) to receive and investigate complaints about alleged abuses of

human rights and take steps to secure appropriate redress

where human rights have been violated;

(f) on its own initiative or on the basis of complaints, to

investigate or research a matter in respect of human rights,

and make recommendations to improve the functioning of

State organs;

(g) to act as the principal organ of the State in ensuring

compliance with obligations under treaties and conventions

relating to human rights;

(h) to investigate any conduct in state affairs, or any act or

omission in public administration in any sphere of

government, that is alleged or suspected to be prejudicial or

improper or to result in any impropriety or prejudice;

(i)to investigate complaints of abuse of power, unfair treatment,

manifest injustice or unlawful, oppressive, unfair or

unresponsive official conduct;39

Constitution of Kenya, 2010

(j) to report on complaints investigated under paragraphs ( h) and

(i) and take remedial action; and

(k) to perform any other functions prescribed by legislation.

(3) Every person has the right to complain to the Commission,

alleging that a right or fundamental freedom in the Bill of Rights has

been denied, violated or infringed, or is threatened.

(4) Parliament shall enact legislation to give full effect to this Part,

and any such legislation may restructure the Commission into two or

more separate commissions.

(5) If Parliament enacts legislation restructuring the Commission

under clause (4)—

(a) that legislation shall assign each function of the Commission

specified in this Article to one or the other of the successor

commissions;

(b) each of the successor commissions shall have powers

equivalent to the powers of the Commission under this

Article; and

(c) each successor commission shall be a commission within the

meaning of Chapter Fifteen, and shall have the status and

powers of a commission under that Chapter.

CHAPTER FIVE—LAND AND ENVIRONMENT

PART 1—LAND

Principles of land policy.

60. (1) Land in Kenya shall be held, used and managed in a

manner that is equitable, efficient, productive and sustainable, and in

accordance with the following principles—

(a) equitable access to land;

(b) security of land rights;

(c) sustainable and productive management of land resources;

(d) transparent and cost effective administration of land;

(e) sound conservation and protection of ecologically sensitive

areas;

Constitution of Kenya, 2010

(f) elimination of gender discrimination in law, customs and

practices related to land and property in land; and

(g) encouragement of communities to settle land disputes

through recognised local community initiatives consistent with

this Constitution.

(2) These principles shall be implemented through a national land

policy developed and reviewed regularly by the national government

and through legislation.

Classification of land.

61. (1) All land in Kenya belongs to the people of Kenya

collectively as a nation, as communities and as individuals.

(2) Land in Kenya is classified as public, community or private.

Public land.

62. (1) Public land is—

(a) land which at the effective date was unalienated government

land as defined by an Act of Parliament in force at the

effective date;

(b) land lawfully held, used or occupied by any State organ,

except any such land that is occupied by the State organ as

lessee under a private lease;

(c) land transferred to the State by way of sale, reversion or

surrender;

(d) land in respect of which no individual or community ownership

can be established by any legal process;

(e) land in respect of which no heir can be identified by any legal

process;

(f) all minerals and mineral oils as defined by law;

(g) government forests other than forests to which Article 63 (2)

(d) (i) applies, government game reserves, water catchment

areas, national parks, government animal sanctuaries, and

specially protected areas;

(h) all roads and thoroughfares provided for by an Act of

Parliament;

(i)all rivers, lakes and other water bodies as defined by an Act

of Parliament;41

Constitution of Kenya, 2010

(j)the territorial sea, the exclusive economic zone and the sea

bed;

(k) the continental shelf;

(l) all land between the high and low water marks;

(m) any land not classified as private or community land under

this Constitution; and

(n) any other land declared to be public land by an Act of

Parliament—

(i) in force at the effective date; or

(ii) enacted after the effective date.

(2) Public land shall vest in and be held by a county government

in trust for the people resident in the county, and shall be administered

on their behalf by the National Land Commission, if it is classified

under—

(a) clause (1) (a), (c), (d) or (e); and

(b) clause (1) (b), other than land held, used or occupied by a

national State organ.

(3) Public land classified under clause (1) ( f) to (m) shall vest in

and be held by the national government in trust for the people of

Kenya and shall be administered on their behalf by the National Land

Commission.

(4) Public land shall not be disposed of or otherwise used except

in terms of an Act of Parliament specifying the nature and terms of that

disposal or use.

Community land.

63. (1) Community land shall vest in and be held by communities

identified on the basis of ethnicity, culture or similar community of

interest.

(2) Community land consists of—

(a) land lawfully registered in the name of group representatives

under the provisions of any law;

(b) land lawfully transferred to a specific community by any

process of law;

(c) any other land declared to be community land by an Act of

Constitution of Kenya, 2010

Parliament; and

(d) land that is—

(i) lawfully held, managed or used by specific communities

as community forests, grazing areas or shrines;

(ii) ancestral lands and lands traditionally occupied by

hunter-gatherer communities; or

(iii) lawfully held as trust land by the county governments,

but not including any public land held in trust by the county

government under Article 62 (2).

(3) Any unregistered community land shall be held in trust by

county governments on behalf of the communities for which it is held.

(4) Community land shall not be disposed of or otherwise used

except in terms of legislation specifying the nature and extent of the

rights of members of each community individually and collectively.

(5) Parliament shall enact legislation to give effect to this Article.

Private land.

64. Private land consists of —

(a) registered land held by any person under any freehold tenure;

(b) land held by any person under leasehold tenure; and

(c) any other land declared private land under an Act of

Parliament.

Landholding by non-citizens.

65. (1) A person who is not a citizen may hold land on the basis

of leasehold tenure only, and any such lease, however granted, shall

not exceed ninety-nine years.

(2) If a provision of any agreement, deed, conveyance or

document of whatever nature purports to confer on a person who is not

a citizen an interest in land greater than a ninety-nine year lease, the

provision shall be regarded as conferring on the person a ninety-nine

year leasehold interest, and no more.

(3) For purposes of this Article—

(a) a body corporate shall be regarded as a citizen only if the

body corporate is wholly owned by one or more citizens; and43

Constitution of Kenya, 2010

(b) property held in trust shall be regarded as being held by a

citizen only if all of the beneficial interest of the trust is held by

persons who are citizens.

(4) Parliament may enact legislation to make further provision for

the operation of this Article.

Regulation of land use and property .

66. (1) The State may regulate the use of any land, or any

interest in or right over any land, in the interest of defence, public

safety, public order, public morality, public health, or land use planning.

(2) Parliament shall enact legislation ensuring that investments in

property benefit local communities and their economies.

National Land Commission.

67. (1) There is established the National Land Commission.

(2) The functions of the National Land Commission are—

(a) to manage public land on behalf of the national and county

governments;

(b) to recommend a national land policy to the national

government;

(c) to advise the national government on a comprehensive

programme for the registration of title in land throughout

Kenya;

(d) to conduct research related to land and the use of natural

resources, and make recommendations to appropriate

authorities;

(e) to initiate investigations, on its own initiative or on a complaint,

into present or historical land injustices, and recommend

appropriate redress;

(f)to encourage the application of traditional dispute resolution

mechanisms in land conflicts;

(g) to assess tax on land and premiums on immovable property in

any area designated by law; and

(h) to monitor and have oversight responsibilities over land use

planning throughout the country.

(3) The National Land Commission may perform any other

Constitution of Kenya, 2010

functions prescribed by national legislation.

Legislation on land.

68. Parliament shall—

(a) revise, consolidate and rationalise existing land laws;

(b) revise sectoral land use laws in accordance with the principles

set out in Article 60 (1); and

(c) enact legislation—

(i) to prescribe minimum and maximum land holding

acreages in respect of private land;

(ii) to regulate the manner in which any land may be

converted from one category to another;

(iii) to regulate the recognition and protection of matrimonial

property and in particular the matrimonial home during

and on the termination of marriage;

(iv) to protect, conserve and provide access to all public land;

(v) to enable the review of all grants or dispositions of public

land to establish their propriety or legality;

(vi) to protect the dependants of deceased persons holding

interests in any land, including the interests of spouses

in actual occupation of land; and

(vii) to provide for any other matter necessary to give effect

to the provisions of this Chapter.

PART 2—ENVIRONMENT AND NATURAL RESOURCES

Obligations in respect of the environment.

69. (1) The State shall—

(a) ensure sustainable exploitation, utilisation, management and

conservation of the environment and natural resources, and

ensure the equitable sharing of the accruing benefits;

(b) work to achieve and maintain a tree cover of at least ten per

cent of the land area of Kenya;

(c) protect and enhance intellectual property in, and indigenous

knowledge of, biodiversity and the genetic resources of the

communities; 45

Constitution of Kenya, 2010

(d) encourage public participation in the management, protection

and conservation of the environment;

(e) protect genetic resources and biological diversity;

(f) establish systems of environmental impact assessment,

environmental audit and monitoring of the environment;

(g) eliminate processes and activities that are likely to endanger

the environment; and

(h) utilise the environment and natural resources for the benefit of

the people of Kenya.

(2) Every person has a duty to cooperate with State organs and

other persons to protect and conserve the environment and ensure

ecologically sustainable development and use of natural resources.

Enforcement of environmental rights.

70. (1) If a person alleges that a right to a clean and healthy

environment recognised and protected under Article 42 has been, is

being or is likely to be, denied, violated, infringed or threatened, the

person may apply to a court for redress in addition to any other legal

remedies that are available in respect to the same matter.

(2) On application under clause (1), the court may make any

order, or give any directions, it considers appropriate—

(a) to prevent, stop or discontinue any act or omission that is

harmful to the environment;

(b) to compel any public officer to take measures to prevent or

discontinue any act or omission that is harmful to the

environment; or

(c) to provide compensation for any victim of a violation of the

right to a clean and healthy environment.

(3) For the purposes of this Article, an applicant does not have to

demonstrate that any person has incurred loss or suffered injury.

Agreements relating to natural resource.

71. (1) A transaction is subject to ratification by Parliament if it—

(a) involves the grant of a right or concession by or on behalf of

any person, including the national government, to another

person for the exploitation of any natural resource of Kenya;

and

Constitution of Kenya, 2010

(b) is entered into on or after the effective date.

(2) Parliament shall enact legislation providing for the classes of

transactions subject to ratification under clause (1).

Legislation relating to the environment.

72. Parliament shall enact legislation to give full effect to the

provisions of this Part.

CHAPTER SIX—LEADERSHIP AND INTEGRITY

Responsibilities of leadership.

73. (1) Authority assigned to a State officer—

(a) is a public trust to be exercised in a manner that—

(i) is consistent with the purposes and objects of this

Constitution;

(ii) demonstrates respect for the people;

(iii) brings honour to the nation and dignity to the office; and

(iv) promotes public confidence in the integrity of the office;

and

(b) vests in the State officer the responsibility to serve the people,

rather than the power to rule them.

(2) The guiding principles of leadership and integrity include—

(a) selection on the basis of personal integrity, competence and

suitability, or election in free and fair elections;

(b) objectivity and impartiality in decision making, and in ensuring

that decisions are not influenced by nepotism, favouritism,

other improper motives or corrupt practices;

(c) selfless service based solely on the public interest,

demonstrated by—

(i) honesty in the execution of public duties; and

(ii) the declaration of any personal interest that may conflict

with public duties;

(d) accountability to the public for decisions and actions; and

(e) discipline and commitment in service to the people.47

Constitution of Kenya, 2010

Oath of office of State officers.

74. Before assuming a State office, acting in a State office, or

performing any functions of a State office, a person shall take and

subscribe the oath or affirmation of office, in the manner and form

prescribed by the Third Schedule or under an Act of Parliament.

Conduct of State officers.

75. (1) A State officer shall behave, whether in public and official

life, in private life, or in association with other persons, in a manner

that avoids—

(a) any conflict between personal interests and public or official

duties;

(b) compromising any public or official interest in favour of a

personal interest; or

(c) demeaning the office the officer holds.

(2) A person who contravenes clause (1), or Article 76, 77 or 78

(2)—

(a) shall be subject to the applicable disciplinary procedure for

the relevant office; and

(b) may, in accordance with the disciplinary procedure referred to

in paragraph (a), be dismissed or otherwise removed from

office.

(3) A person who has been dismissed or otherwise removed from

office for a contravention of the provisions specified in clause (2) is

disqualified from holding any other State office.

Financial probity of State officers.

76. (1) A gift or donation to a State officer on a public or official

occasion is a gift or donation to the Republic and shall be delivered to

the State unless exempted under an Act of Parliament.

(2) A State officer shall not—

(a) maintain a bank account outside Kenya except in accordance

with an Act of Parliament; or

(b) seek or accept a personal loan or benefit in circumstances

that compromise the integrity of the State officer.

Restriction on activities of State officers.

77. (1) A full-time State officer shall not participate in any other

Constitution of Kenya, 2010

gainful employment.

(2) Any appointed State officer shall not hold office in a political

party.

(3) A retired State officer who is receiving a pension from public

funds shall not hold more than two concurrent remunerative positions

as chairperson, director or employee of—

(a) a company owned or controlled by the State; or

(b) a State organ.

(4) A retired State officer shall not receive remuneration from

public funds other than as contemplated in clause (3).

Citizenship and leadership.

78. (1) A person is not eligible for election or appointment to a

State office unless the person is a citizen of Kenya.

(2) A State officer or a member of the defence forces shall not

hold dual citizenship.

(3) Clauses (1) and (2) do not apply to—

(a) judges and members of commissions; or

(b) any person who has been made a citizen of another country

by operation of that country’s law, without ability to opt out.

Legislation to establish the ethics and anti-corruption

commission.

79. Parliament shall enact legislation to establish an independent

ethics and anti-corruption commission, which shall be and have the

status and powers of a commission under Chapter Fifteen, for

purposes of ensuring compliance with, and enforcement of, the

provisions of this Chapter.

Legislation on leadership.

80. Parliament shall enact legislation—

(a) establishing procedures and mechanisms for the effective

administration of this Chapter;

(b) prescribing the penalties, in addition to the penalties referred

to in Article 75, that may be imposed for a contravention of

this Chapter;49

Constitution of Kenya, 2010

(c) providing for the application of this Chapter, with the

necessary modifications, to public officers; and

(d) making any other provision necessary for ensuring the

promotion of the principles of leadership and integrity referred

to in this Chapter, and the enforcement of this Chapter.

CHAPTER SEVEN—REPRESENTATION OF THE PEOPLE

PART 1—ELECTORAL SYSTEM AND PROCESS

General principles for the electoral system.

81. The electoral system shall comply with the following

principles—

(a) freedom of citizens to exercise their political rights under

Article 38;

(b) not more than two-thirds of the members of elective public

bodies shall be of the same gender;

(c) fair representation of persons with disabilities;

(d) universal suffrage based on the aspiration for fair

representation and equality of vote; and

(e) free and fair elections, which are—

(i)by secret ballot;

(ii) free from violence, intimidation, improper influence or

corruption;

(iii) conducted by an independent body;

(iv) transparent; and

(v) administered in an impartial, neutral, efficient, accurate

and accountable manner.

Legislation on elections.

82. (1) Parliament shall enact legislation to provide for—

(a) the delimitation by the Independent Electoral and Boundaries

Commission of electoral units for election of members of the

National Assembly and county assemblies;

(b) the nomination of candidates;

(c) the continuous registration of citizens as voters;

Constitution of Kenya, 2010

(d) the conduct of elections and referenda and the regulation and

efficient supervision of elections and referenda, including the

nomination of candidates for elections; and

(e) the progressive registration of citizens residing outside Kenya,

and the progressive realisation of their right to vote.

(2) Legislation required by clause (1) ( d) shall ensure that voting

at every election is—

(a) simple;

(b) transparent; and

(c) takes into account the special needs of—

(i) persons with disabilities; and

(ii) other persons or groups with special needs.

Registration as a voter.

83. (1) A person qualifies for registration as a voter at elections or

referenda if the person—

(a) is an adult citizen;

(b) is not declared to be of unsound mind; and

(c) has not been convicted of an election offence during the

preceding five years.

(2) A citizen who qualifies for registration as a voter shall be

registered at only one registration centre.

(3) Administrative arrangements for the registration of voters and

the conduct of elections shall be designed to facilitate, and shall not

deny, an eligible citizen the right to vote or stand for election.

Candidates for election and political parties to comply with code

of conduct.

84. In every election, all candidates and all political parties shall

comply with the code of conduct prescribed by the Independent

Electoral and Boundaries Commission.

Eligibility to stand as an independent candidate.

85. Any person is eligible to stand as an independent candidate

for election if the person—

(a) is not a member of a registered political party and has not 51

Constitution of Kenya, 2010

been a member for at least three months immediately before

the date of the election; and

(b) satisfies the requirements of—

(i) Article 99 (1) (c) (i) or (ii), in the case of a candidate for

election to the National Assembly or the Senate,

respectively; or

(ii) Article 193 (1) ( c) (ii), in the case of a candidate for

election to a county assembly.

Voting.

86. At every election, the Independent Electoral and Boundaries

Commission shall ensure that—

(a) whatever voting method is used, the system is simple,

accurate, verifiable, secure, accountable and transparent;

(b) the votes cast are counted, tabulated and the results

announced promptly by the presiding officer at each polling

station;

(c) the results from the polling stations are openly and accurately

collated and promptly announced by the returning officer; and

(d) appropriate structures and mechanisms to eliminate electoral

malpractice are put in place, including the safekeeping of

election materials.

Electoral disputes.

87. (1) Parliament shall enact legislation to establish mechanisms

for timely settling of electoral disputes.

(2) Petitions concerning an election, other than a presidential

election, shall be filed within twenty-eight days after the declaration of

the election results by the Independent Electoral and Boundaries

Commission.

(3) Service of a petition may be direct or by advertisement in a

newspaper with national circulation.

PART 2—INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION AND

DELIMITATION OF ELECTORAL UNITS

Independent Electoral and Boundaries Commission.

88. (1) There is established the Independent Electoral and

Boundaries Commission.

Constitution of Kenya, 2010

(2) A person is not eligible for appointment as a member of the

Commission if the person—

(a) has, at any time within the preceding five years, held office, or

stood for election as—

(i) a member of Parliament or of a county assembly; or

(ii) a member of the governing body of a political party; or

(b) holds any State office.

(3) A member of the Commission shall not hold another public

office.

(4) The Commission is responsible for conducting or supervising

referenda and elections to any elective body or office established by

this Constitution, and any other elections as prescribed by an Act of

Parliament and, in particular, for—

(a) the continuous registration of citizens as voters;

(b) the regular revision of the voters’ roll;

(c) the delimitation of constituencies and wards;

(d) the regulation of the process by which parties nominate

candidates for elections;

(e) the settlement of electoral disputes, including disputes relating

to or arising from nominations but excluding election petitions

and disputes subsequent to the declaration of election

results;

(f) the registration of candidates for election;

(g) voter education;

(h) the facilitation of the observation, monitoring and evaluation of

elections;

(i)the regulation of the amount of money that may be spent by

or on behalf of a candidate or party in respect of any election;

(j) the development of a code of conduct for candidates and

parties contesting elections; and

(k) the monitoring of compliance with the legislation required by

Constitution of Kenya, 2010

parties.

(5) The Commission shall exercise its powers and perform its

functions in accordance with this Constitution and national legislation.

Delimitation of electoral units.

89. (1) There shall be two hundred and ninety constituencies for

the purposes of the election of the members of the National Assembly

provided for in Article 97 (1) ( a).

(2) The Independent Electoral and Boundaries Commission shall

review the names and boundaries of constituencies at intervals of not

less than eight years, and not more than twelve years, but any review

shall be completed at least twelve months before a general election of

members of Parliament.

(3) The Commission shall review the number, names and

boundaries of wards periodically.

(4) If a general election is to be held within twelve months after

the completion of a review by the Commission, the new boundaries

shall not take effect for purposes of that election.

(5) The boundaries of each constituency shall be such that the

number of inhabitants in the constituency is, as nearly as possible,

equal to the population quota, but the number of inhabitants of a

constituency may be greater or lesser than the population quota in the

manner specified in clause (6) to take account of—

(a) geographical features and urban centres;

(b) community of interest, historical, economic and cultural ties;

and

(c) means of communication.

(6) The number of inhabitants of a constituency or ward may be

greater or lesser than the population quota by a margin of not more

than—

(a) forty per cent for cities and sparsely populated areas; and

(b) thirty per cent for the other areas.

(7) In reviewing constituency and ward boundaries the

Commission shall

(a) consult all interested parties; and

Constitution of Kenya, 2010

(b) progressively work towards ensuring that the number of

inhabitants in each constituency and ward is, as nearly as

possible, equal to the population quota.

(8) If necessary, the Commission shall alter the names and

boundaries of constituencies, and the number, names and boundaries

of wards.

(9) Subject to clauses (1), (2), (3) and (4), the names and details

of the boundaries of constituencies and wards determined by the

Commission shall be published in the Gazette, and shall come into

effect on the dissolution of Parliament first following their publication.

(10) A person may apply to the High Court for review of a

decision of the Commission made under this Article.

(11) An application for the review of a decision made under this

Article shall be filed within thirty days of the publication of the decision

in the Gazette and shall be heard and determined within three months

of the date on which it is filed.

(12) For the purposes of this Article, “population quota” means

the number obtained by dividing the number of inhabitants of Kenya by

the number of constituencies or wards, as applicable, into which Kenya

is divided under this Article.

Allocation of party list seats.

90. (1) Elections for the seats in Parliament provided for under

Articles 97(1) (c) and 98 (1) (b), (c) and (d), and for the members of

county assemblies under 177 (1) ( b) and (c), shall be on the basis of

proportional representation by use of party lists.

(2) The Independent Electoral and Boundaries Commission shall

be responsible for the conduct and supervision of elections for seats

provided for under clause (1) and shall ensure that—

(a) each political party participating in a general election

nominates and submits a list of all the persons who would

stand elected if the party were to be entitled to all the seats

provided for under clause (1), within the time prescribed by

national legislation;

(b) except in the case of the seats provided for under Article 98

(1) (b), each party list comprises the appropriate number of

qualified candidates and alternates between male and female

candidates in the priority in which they are listed; and55

Constitution of Kenya, 2010

(c) except in the case of county assembly seats, each party list

reflects the regional and ethnic diversity of the people of

Kenya.

(3) The seats referred to in clause (1) shall be allocated to

political parties in proportion to the total number of seats won by

candidates of the political party at the general election.

PART 3—POLITICAL PARTIES

Basic requirements for political parties.

91. (1) Every political party shall—

(a) have a national character as prescribed by an Act of

Parliament;

(b) have a democratically elected governing body;

(c) promote and uphold national unity;

(d) abide by the democratic principles of good governance,

promote and practise democracy through regular, fair and

free elections within the party;

(e) respect the right of all persons to participate in the political

process, including minorities and marginalised groups;

(f)respect and promote human rights and fundamental

freedoms, and gender equality and equity;

(g) promote the objects and principles of this Constitution and the

rule of law; and

(h) subscribe to and observe the code of conduct for political

parties.

(2) A political party shall not—

(a) be founded on a religious, linguistic, racial, ethnic, gender or

regional basis or seek to engage in advocacy of hatred on

any such basis;

(b) engage in or encourage violence by, or intimidation of, its

members, supporters, opponents or any other person;

(c) establish or maintain a paramilitary force, militia or similar

organisation;

(d) engage in bribery or other forms of corruption; or

Constitution of Kenya, 2010

(e) except as is provided under this Chapter or by an Act of

Parliament, accept or use public resources to promote its

interests or its candidates in elections.

Legislation on political parties.

92. Parliament shall enact legislation to provide for—

(a) the reasonable and equitable allocation of airtime, by

State-owned and other specified categories of broadcasting

media, to political parties either generally or during election

campaigns;

(b) the regulation of freedom to broadcast in order to ensure fair

election campaigning;

(c) the regulation of political parties;

(d) the roles and functions of political parties;

(e) the registration and supervision of political parties;

(f) the establishment and management of a political parties fund;

(g) the accounts and audit of political parties;

(h) restrictions on the use of public resources to promote the

interests of political parties; and

(i) any other matters necessary for the management of political

parties.

CHAPTER EIGHT—THE LEGISLATURE

PART 1—ESTABLISHMENT AND ROLE OF PARLIAMENT

Establishment of Parliament.

93. (1) There is established a Parliament of Kenya, which shall

consist of the National Assembly and the Senate.

(2) The National Assembly and the Senate shall perform their

respective functions in accordance with this Constitution.

Role of Parliament.

94. (1) The legislative authority of the Republic is derived from

the people and, at the national level, is vested in and exercised by

Parliament.57

Constitution of Kenya, 2010

(2) Parliament manifests the diversity of the nation, represents

the will of the people, and exercises their sovereignty.

(3) Parliament may consider and pass amendments to this

Constitution, and alter county boundaries as provided for in this

Constitution.

(4) Parliament shall protect this Constitution and promote the

democratic governance of the Republic.

(5) No person or body, other than Parliament, has the power to

make provision having the force of law in Kenya except under authority

conferred by this Constitution or by legislation.

(6) An Act of Parliament, or legislation of a county, that confers

on any State organ, State officer or person the authority to make

provision having the force of law in Kenya, as contemplated in clause

(5), shall expressly specify the purpose and objectives for which that

authority is conferred, the limits of the authority, the nature and scope

of the law that may be made, and the principles and standards

applicable to the law made under the authority.

Role of the National Assembly.

95. (1) The National Assembly represents the people of the

constituencies and special interests in the National Assembly.

(2) The National Assembly deliberates on and resolves issues of

concern to the people.

(3) The National Assembly enacts legislation in accordance with

Part 4 of this Chapter.

(4) The National Assembly—

(a) determines the allocation of national revenue between the

levels of government, as provided in Part 4 of Chapter

Twelve;

(b) appropriates funds for expenditure by the national

government and other national State organs; and

(c) exercises oversight over national revenue and its expenditure.

(5) The National Assembly—

(a) reviews the conduct in office of the President, the Deputy

President and other State officers and initiates the process of

removing them from office; and

Constitution of Kenya, 2010

(b) exercises oversight of State organs.

(6) The National Assembly approves declarations of war and

extensions of states of emergency.

Role of the Senate.

96. (1) The Senate represents the counties, and serves to protect

the interests of the counties and their governments.

(2) The Senate participates in the law-making function of

Parliament by considering, debating and approving Bills concerning

counties, as provided in Articles 109 to 113.

(3) The Senate determines the allocation of national revenue

among counties, as provided in Article 217, and exercises oversight

over national revenue allocated to the county governments.

(4) The Senate participates in the oversight of State officers by

considering and determining any resolution to remove the President or

Deputy President from office in accordance with Article 145.

PART 2—COMPOSITION AND MEMBERSHIP OF PARLIAMENT

Membership of the National Assembly.

97. (1) The National Assembly consists of—

(a) two hundred and ninety members, each elected by the

registered voters of single member constituencies;

(b) forty-seven women, each elected by the registered voters of

the counties, each county constituting a single member

constituency;

(c) twelve members nominated by parliamentary political parties

according to their proportion of members of the National

Assembly in accordance with Article 90, to represent special

interests including the youth, persons with disabilities and

workers; and

(d) the Speaker, who is an ex officio member.

(2) Nothing in this Article shall be construed as excluding any

person from contesting an election under clause (1) ( a).

Membership of the Senate.

98. (1) The Senate consists of—

(a) forty-seven members each elected by the registered voters of 59

Constitution of Kenya, 2010

the counties, each county constituting a single member

constituency;

(b) sixteen women members who shall be nominated by political

parties according to their proportion of members of the Senate

elected under clause ( a) in accordance with Article 90;

(c) two members, being one man and one woman, representing

the youth;

(d) two members, being one man and one woman, representing

persons with disabilities; and

(e) the Speaker, who shall be an ex officio member.

(2) The members referred to in clause (1) ( c) and (d) shall be

elected in accordance with Article 90.

(3) Nothing in this Article shall be construed as excluding any

person from contesting an election under clause (1) ( a).

Qualifications and disqualifications for election as member of

Parliament.

99. (1) Unless disqualified under clause (2), a person is eligible

for election as a member of Parliament if the person—

(a) is registered as a voter;

(b) satisfies any educational, moral and ethical requirements

prescribed by this Constitution or by an Act of Parliament;

and

(c) is nominated by a political party, or is an independent

candidate who is supported—

(i) in the case of election to the National Assembly, by at

least one thousand registered voters in the

constituency; or

(ii) in the case of election to the Senate, by at least two

thousand registered voters in the county.

(2) A person is disqualified from being elected a member of

Parliament if the person—

(a) is a State officer or other public officer, other than a member

of Parliament;

(b) has, at any time within the five years immediately preceding

the date of election, held office as a member of the

Constitution of Kenya, 2010

Independent Electoral and Boundaries Commission;

(c) has not been a citizen of Kenya for at least the ten years

immediately preceding the date of election;

(d) is a member of a county assembly;

(e) is of unsound mind;

(f)is an undischarged bankrupt;

(g) is subject to a sentence of imprisonment of at least six

months, as at the date of registration as a candidate, or at the

date of election; or

(h) is found, in accordance with any law, to have misused or

abused a State office or public office or in any way to have

contravened Chapter Six.

(3) A person is not disqualified under clause (2) unless all

possibility of appeal or review of the relevant sentence or decision has

been exhausted.

Promotion of representation of marginalised groups.

100. Parliament shall enact legislation to promote the

representation in Parliament of—

(a) women;

(b) persons with disabilities;

(c) youth;

(d) ethnic and other minorities; and

(e) marginalised communities.

Election of members of Parliament.

101. (1) A general election of members of Parliament shall be

held on the second Tuesday in August in every fifth year.

(2) Whenever a vacancy occurs in the office of a member of the

National Assembly under Article 97 (1) ( c), or of the Senate under

twenty-one days of the occurrence of the vacancy, give notice in

writing of the vacancy to—

(a) the Independent Electoral and Boundaries Commission;

and61

Constitution of Kenya, 2010

(b) the political party on whose party list the member was elected

or nominated.

(3) A vacancy referred to in clause (2) shall, subject to clause (5),

be filled in the manner prescribed by an Act of Parliament within

twenty-one days of the notification by the respective Speaker.

(4) Whenever a vacancy occurs in the office of a member of the

National Assembly elected under Article 97 (1) ( a) or (b), or of the

Senate elected under Article 98 (1) ( a)—

(a) the respective Speaker shall, within twenty-one days after the

occurrence of the vacancy, give notice in writing of the

vacancy to the Independent Electoral and Boundaries

Commission; and

(b) a by-election shall be held within ninety days of the

occurrence of the vacancy, subject to clause (5).

(5) A vacancy referred to in clause (4) shall not be filled within the

three months immediately before a general election.

Term of Parliament.

102. (1) The term of each House of Parliament expires on the

date of the next general election.

(2) When Kenya is at war, Parliament may, by resolution

supported in each House by at least two-thirds of all the members of

the House, from time to time extend the term of Parliament by not

more than six months at a time.

(3) The term of Parliament shall not be extended under clause (2)

for a total of more than twelve months.

Vacation of office of member of Parliament.

103. (1) The office of a member of Parliament becomes vacant—

(a) if the member dies;

(b) if, during any session of Parliament, the member is absent

from eight sittings of the relevant House without permission,

in writing, from the Speaker, and is unable to offer a

satisfactory explanation for the absence to the relevant

committee;

(c) if the member is otherwise removed from office under this

Constitution or legislation enacted under Article 80;

Constitution of Kenya, 2010

(d) if the member resigns from Parliament in writing to the

Speaker;

(e) if, having been elected to Parliament—

(i) as a member of a political party, the member resigns from

that party or is deemed to have resigned from the party

as determined in accordance with the legislation

contemplated in clause (2); or

(ii) as an independent candidate, the member joins a political

party;

(f)at the end of the term of the relevant House; or

(g) if the member becomes disqualified for election to Parliament

under Article 99 (2) ( d) to (h).

(3) Parliament shall enact legislation providing for the

circumstances under which a member of a political party shall be

deemed, for the purposes of clause (1) ( e), to have resigned from the

party.

Right of recall.

104. (1) The electorate under Articles 97 and 98 have the right to

recall the member of Parliament representing their constituency before

the end of the term of the relevant House of Parliament.

(2) Parliament shall enact legislation to provide for the grounds

on which a member may be recalled and the procedure to be followed.

Determination of questions of membership.

105. (1) The High Court shall hear and determine any question

whether—

(a) a person has been validly elected as a member of Parliament;

or

(b) the seat of a member has become vacant.

(2) A question under clause (1) shall be heard and determined

within six months of the date of lodging the petition.

(3) Parliament shall enact legislation to give full effect to this

Article.63

Constitution of Kenya, 2010

PART 3—OFFICES OF PARLIAMENT

Speakers and Deputy Speakers of Parliament.

106. (1) There shall be—

(a) a Speaker for each House of Parliament, who shall be elected

by that House in accordance with the Standing Orders, from

among persons who are qualified to be elected as members

of Parliament but are not such members; and

(b) a Deputy Speaker for each House of Parliament, who shall be

elected by that House in accordance with the Standing

Orders, from among the members of that House.

(2) The office of Speaker or Deputy Speaker shall become vacant

—

(a) when a new House of Parliament first meets after an election;

(b) if the office holder, as a member of the relevant House,

vacates office under Article 103;

(c) if the relevant House so resolves by resolution supported by

the votes of at least two-thirds of its members; or

(d) if the office holder resigns from office in a letter addressed to

the relevant House.

Presiding in Parliament.

107. (1) At any sitting of a House of Parliament—

(a) the Speaker presides;

(b) in the absence of the Speaker, the Deputy Speaker presides;

and

(c) in the absence of the Speaker and the Deputy Speaker,

another member of the House elected by the House presides.

(2) At a joint sitting of the Houses of Parliament, the Speaker of

the National Assembly shall preside, assisted by the Speaker of the

Senate.

Party leaders.

108. (1) There shall be a leader of the majority party and a leader

of the minority party.

Constitution of Kenya, 2010

(2) The leader of the majority party shall be the person who is the

leader in the National Assembly of the largest party or coalition of

parties.

(3) The leader of the minority party shall be the person who is the

leader in the National Assembly of the second largest party or coalition

of parties.

(4) The following order of precedence shall be observed in the

National Assembly—

(a) the Speaker of the National Assembly;

(b) the leader of the majority party; and

(c) the leader of the minority party.

PART 4—PROCEDURES FOR ENACTING LEGISLATION

Exercise of legislative powers.

109. (1) Parliament shall exercise its legislative power through

Bills passed by Parliament and assented to by the President.

(2) Any Bill may originate in the National Assembly.

(3) A Bill not concerning county government is considered only in

the National Assembly, and passed in accordance with Article 122 and

the Standing Orders of the Assembly.

(4) A Bill concerning county government may originate in the

National Assembly or the Senate, and is passed in accordance with

Articles 110 to 113, Articles 122 and 123 and the Standing Orders of

the Houses.

(5) A Bill may be introduced by any member or committee of the

relevant House of Parliament, but a money Bill may be introduced only

in the National Assembly in accordance with Article 114.

Bills concerning county government.

110. (1) In this Constitution, “a Bill concerning county

government” means—

(a) a Bill containing provisions affecting the functions and powers

of the county governments set out in the Fourth Schedule;

(b) a Bill relating to the election of members of a county assembly

or a county executive; and65

Constitution of Kenya, 2010

(c) a Bill referred to in Chapter Twelve affecting the finances of

county governments.

(2) A Bill concerning county governments is—

(a) a special Bill, which shall be considered under Article 111, if it

—

(i) relates to the election of members of a county assembly or

a county executive; or

(ii) is the annual County Allocation of Revenue Bill referred to

in Article 218; or

(b) an ordinary Bill, which shall be considered under Article 112,

in any other case.

(3) Before either House considers a Bill, the Speakers of the

National Assembly and Senate shall jointly resolve any question as to

whether it is a Bill concerning counties and, if it is, whether it is a

special or an ordinary Bill.

(4) When any Bill concerning county government has been

passed by one House of Parliament, the Speaker of that House shall

refer it to the Speaker of the other House.

(5) If both Houses pass the Bill in the same form, the Speaker of

the House in which the Bill originated shall, within seven days, refer

the Bill to the President for assent.

Special Bills concerning county governments.

111. (1) A special Bill concerning a county government shall

proceed in the same manner as an ordinary Bill concerning county

government, subject to clauses (2) and (3).

(2) The National Assembly may amend or veto a special Bill that

has been passed by the Senate only by a resolution supported by at

least two-thirds of the members of the Assembly.

(3) If a resolution in the National Assembly to amend or veto a

special Bill fails to pass, the Speaker of the Assembly shall, within

seven days, refer the Bill, in the form adopted by the Senate, to the

President for assent.

Ordinary Bills concerning county governments.

112. (1) If one House passes an ordinary Bill concerning

counties, and the second House—

Constitution of Kenya, 2010

(a) rejects the Bill, it shall be referred to a mediation committee

appointed under Article 113; or

(b) passes the Bill in an amended form, it shall be referred back

to the originating House for reconsideration.

(2) If, after the originating House has reconsidered a Bill referred

back to it under clause (1) ( b), that House—

(a) passes the Bill as amended, the Speaker of that House shall

refer the Bill to the President within seven days for assent; or

(b) rejects the Bill as amended, the Bill shall be referred to a

mediation committee under Article 113.

Mediation committees.

113. (1) If a Bill is referred to a mediation committee under Article

112, the Speakers of both Houses shall appoint a mediation committee

consisting of equal numbers of members of each House to attempt to

develop a version of the Bill that both Houses will pass.

(2) If the mediation committee agrees on a version of the Bill,

each House shall vote to approve or reject that version of the Bill.

(3) If both Houses approve the version of the Bill proposed by the

mediation committee, the Speaker of the National Assembly shall refer

the Bill to the President within seven days for assent.

(4) If the mediation committee fails to agree on a version of the

Bill within thirty days, or if a version proposed by the committee is

rejected by either House, the Bill is defeated.

Money Bills.

114. (1) A money Bill may not deal with any matter other than

those listed in the definition of “ a money Bill” in clause (3).

(2) If, in the opinion of the Speaker of the National Assembly, a

motion makes provision for a matter listed in the definition of “a money

Bill”, the Assembly may proceed only in accordance with the

recommendation of the relevant Committee of the Assembly after

taking into account the views of the Cabinet Secretary responsible for

finance.

(3) In this Constitution, “a money Bill” means a Bill, other than a

Bill specified in Article 218, that contains provisions dealing with—

(a) taxes;67

Constitution of Kenya, 2010

(b) the imposition of charges on a public fund or the variation or

repeal of any of those charges;

(c) the appropriation, receipt, custody, investment or issue of

public money;

(d) the raising or guaranteeing of any loan or its repayment; or

(e) matters incidental to any of those matters.

(4) In clause (3), “tax”, “public money”, and “loan” do not include

any tax, public money or loan raised by a county.

Presidential assent and referral.

115. (1) Within fourteen days after receipt of a Bill, the President

shall—

(a) assent to the Bill; or

(b) refer the Bill back to Parliament for reconsideration by

Parliament, noting any reservations that the President has

concerning the Bill.

(2) If the President refers a Bill back for reconsideration,

Parliament may, following the appropriate procedures under this Part

—

(a) amend the Bill in light of the President’s reservations; or

(b) pass the Bill a second time without amendment.

(3) If Parliament amendeds the Bill fully accommodating the

President’s reservations, the appropriate Speaker shall re-submit it to

the President for assent.

(4) Parliament, after considering the President’s reservations,

may pass the Bill a second time, without amendment, or with

amendments that do not fully accommodate the President’s

reservations, by a vote supported—

(a) by two-thirds of members of the National Assembly; and

(b) two-thirds of the delegations in the Senate, if it is a Bill that

requires the approval of the Senate.

(5) If Parliament has passed a Bill under clause (4)—

(a) the appropriate Speaker shall within seven days re-submit it

to the President; and

Constitution of Kenya, 2010

(b) the President shall within seven days assent to the Bill.

(6) If the President does not assent to a Bill or refer it back within

the period prescribed in clause (1), or assent to it under (5) ( b), the Bill

shall be taken to have been assented to on the expiry of that period.

Coming into force of laws.

116. (1) A Bill passed by Parliament and assented to by the

President shall be published in the Gazette as an Act of Parliament

within seven days after assent.

(2) Subject to clause (3), an Act of Parliament comes into force

on the fourteenth day after its publication in the Gazette, unless the Act

stipulates a different date on or time at which it will come into force.

(3) An Act of Parliament that confers a direct pecuniary interest

on members of Parliament shall not come into force until after the next

general election of members of Parliament.

(4) Clause (3) does not apply to an interest that members of

Parliament have as members of the public.

PART 5—PARLIAMENT’S GENERAL PROCEDURES AND RULES

Powers, privileges and immunities.

117. (1) There shall be freedom of speech and debate in

Parliament.

(2) Parliament may, for the purpose of the orderly and effective

discharge of the business of Parliament, provide for the powers,

privileges and immunities of Parliament, its committees, the leader of

the majority party, the leader of the minority party, the chairpersons of

committees and members.

Public access and participation.

118. (1) Parliament shall—

(a) conduct its business in an open manner, and its sittings and

those of its committees shall be open to the public; and

(b) facilitate public participation and involvement in the legislative

and other business of Parliament and its committees.

(2) Parliament may not exclude the public, or any media, from

any sitting unless in exceptional circumstances the relevant Speaker

has determined that there are justifiable reasons for the exclusion.69

Constitution of Kenya, 2010

Right to petition Parliament.

119. (1) Every person has a right to petition Parliament to

consider any matter within its authority, including to enact, amend or

repeal any legislation.

(2) Parliament shall make provision for the procedure for the

exercise of this right.

Official languages of Parliament.

120. (1) The official languages of Parliament shall be Kiswahili,

English and Kenyan Sign language, and the business of Parliament

may be conducted in English, Kiswahili and Kenyan Sign language.

(2) In case of a conflict between different language versions of an

Act of Parliament, the version signed by the President shall prevail.

Quorum.

121. The quorum of Parliament shall be––

(a) fifty members, in the case of the National Assembly; or

(b) fifteen members, in the case of the Senate.

Voting in Parliament.

122. (1) Except as otherwise provided in this Constitution, any

question proposed for decision in either House of Parliament shall be

determined by a majority of the members in that House, present and

voting.

(2) On a question proposed for decision in either House—

(a) the Speaker has no vote; and

(b) in the case of a tie, the question is lost.

(3) A member shall not vote on any question in which the

member has a pecuniary interest.

(4) In reckoning the number of members of a House of

Parliament for any purpose of voting in that House, the Speaker of that

House shall not be counted as a member.

Decisions of Senate.

123. (1) On election, all the members of the Senate who were

registered as voters in a particular county shall collectively constitute a

single delegation for purposes of clause (4) and the member elected

under Article 98 (1) ( a) shall be the head of the delegation.

Constitution of Kenya, 2010

(2) When the Senate is to vote on any matter other than a Bill,

the Speaker shall rule on whether the matter affects or does not affect

counties.

(3) When the Senate votes on a matter that does not affect

counties, each senator has one vote.

(4) Except as provided otherwise in this Constitution, in any

matter in the Senate affecting counties—

(a) each county delegation shall have one vote to be cast on

behalf of the county by the head of the county delegation or,

in the absence of the head of the delegation, by another

member of the delegation designated by the head of the

delegation;

(b) the person who votes on behalf of a delegation shall

determine whether or not to vote in support of, or against, the

matter, after consulting the other members of the delegation;

and

(c) the matter is carried only if it is supported by a majority of all

the delegations.

Committees and Standing Orders.

124. (1) Each House of Parliament may establish committees,

and shall make Standing Orders for the orderly conduct of its

proceedings, including the proceedings of its committees.

(2) Parliament may establish joint committees consisting of

members of both Houses and may jointly regulate the procedure of

those committees.

(3) The proceedings of either House are not invalid just because

of—

(a) a vacancy in its membership; or

(b) the presence or participation of any person not entitled to be

present at, or to participate in, the proceedings of the House.

(4) When a House of Parliament considers any appointment for

which its approval is required under this Constitution or an Act of

Parliament—

(a) the appointment shall be considered by a committee of the

relevant House;71

Constitution of Kenya, 2010

(b) the committee’s recommendation shall be tabled in the House

for approval; and

(c) the proceedings of the committee and the House shall be

open to the public.

Power to call for evidence.

125. (1) Either House of Parliament, and any of its committees,

has power to summon any person to appear before it for the purpose

of giving evidence or providing information.

(2) For the purposes of clause (1), a House of Parliament and

any of its committees has the same powers as the High Court—

(a) to enforce the attendance of witnesses and examine them on

oath, affirmation or otherwise;

(b) to compel the production of documents; and

(c) to issue a commission or request to examine witnesses

abroad.

PART 6—MISCELLANEOUS

Location of sittings of Parliament.

126. (1) A sitting of either House may be held at any place within

Kenya and may commence at any time that the House appoints.

(2) Whenever a new House is elected, the President, by notice in

the Gazette, shall appoint the place and date for the first sitting of the

new House, which shall be not more than thirty days after the election.

Parliamentary Service Commission.

127. (1) There is established the Parliamentary Service

Commission.

(2) The Commission consists of—

(a) the Speaker of the National Assembly, as chairperson;

(b) a vice-chairperson elected by the Commission from the

members appointed under paragraph ( c);

(c) seven members appointed by Parliament from among its

members of whom—

(i) four shall be nominated equally from both Houses by the

party or coalition of parties forming the national

Constitution of Kenya, 2010

government, of whom at least two shall be women; and

(ii) three shall be nominated by the parties not forming the

national government, at least one of whom shall be

nominated from each House and at least one of whom

shall be a woman; and

(d) one man and one woman appointed by Parliament from

among persons who are experienced in public affairs, but are

not members of Parliament.

(3) The Clerk of the Senate shall be the Secretary to the

Commission.

(4) A member of the Commission shall vacate office—

(a) if the person is a member of Parliament—

(i) at the end of the term of the House of which the person is

a member; or

(ii) if the person ceases to be a member of Parliament; or

(b) if the person is an appointed member, on revocation of the

person’s appointment by Parliament.

(5) Despite clause (4), when the term of a House of Parliament

ends, a member of the Commission appointed under clause (2) ( c)

shall continue in office until a new member has been appointed in the

member’s place by the next House.

(6) The Commission is responsible for—

(a) providing services and facilities to ensure the efficient and

effective functioning of Parliament;

(b) constituting offices in the parliamentary service, and

appointing and supervising office holders;

(c) preparing annual estimates of expenditure of the

parliamentary service and submitting them to the National

Assembly for approval, and exercising budgetary control over

the service;

(d) undertaking, singly or jointly with other relevant organisations,

programmes to promote the ideals of parliamentary

democracy; and

(e) performing other functions—73

Constitution of Kenya, 2010

(i) necessary for the well-being of the members and staff of

Parliament; or

(ii) prescribed by national legislation.

Clerks and staff of Parliament.

128. (1) There shall be a Clerk for each House of Parliament,

appointed by the Parliamentary Service Commission with the approval

of the relevant House.

(2) The offices of the Clerks and offices of members of the staff of

the Clerks shall be offices in the Parliamentary Service.

CHAPTER NINE—THE EXECUTIVE

PART 1—PRINCIPLES AND STRUCTURE OF THE NATIONAL EXECUTIVE

Principles of executive authority.

129. (1) Executive authority derives from the people of Kenya

and shall be exercised in accordance with this Constitution.

(2) Executive authority shall be exercised in a manner compatible

with the principle of service to the people of Kenya, and for their

well-being and benefit.

The National Executive.

130. (1) The national executive of the Republic comprises the

President, the Deputy President and the rest of the Cabinet.

(2) The composition of the national executive shall reflect the

regional and ethnic diversity of the people of Kenya.

PART 2—THE PRESIDENT AND DEPUTY PRESIDENT

Authority of the President.

131. (1) The President—

(a) is the Head of State and Government;

(b) exercises the executive authority of the Republic, with the

assistance of the Deputy President and Cabinet Secretaries;

(c) is the Commander-in-Chief of the Kenya Defence Forces;

(d) is the chairperson of the National Security Council; and

(e) is a symbol of national unity.

Constitution of Kenya, 2010

(2) The President shall—

(a) respect, uphold and safeguard this Constitution;

(b) safeguard the sovereignty of the Republic;

(c) promote and enhance the unity of the nation;

(d) promote respect for the diversity of the people and

communities of Kenya; and

(e) ensure the protection of human rights and fundamental

freedoms and the rule of law.

(3) The President shall not hold any other State or public office.

Functions of the President.

132. (1) The President shall—

(a) address the opening of each newly elected Parliament;

(b) address a special sitting of Parliament once every year and

may address Parliament at any other time; and

(c) once every year—

(i)report, in an address to the nation, on all the measures

taken and the progress achieved in the realisation of

the national values, referred to in Article 10;

(ii)publish in the Gazette the details of the measures and

progress under sub-paragraph (i); and

(iii) submit a report for debate to the National Assembly on

the progress made in fulfilling the international

obligations of the Republic.

(2) The President shall nominate and, with the approval of the

National Assembly, appoint, and may dismiss—

(a) the Cabinet Secretaries, in accordance with Article 152;

(b) the Attorney-General, in accordance with Article 156;

(c) the Secretary to the Cabinet in accordance with Article 154;

(d) Principal Secretaries in accordance with Article 155;

(e) high commissioners, ambassadors and diplomatic and

consular representatives; and75

Constitution of Kenya, 2010

(f) in accordance with this Constitution, any other State or public

officer whom this Constitution requires or empowers the

President to appoint or dismiss.

(3) The President shall—

(a) chair Cabinet meetings;

(b) direct and co-ordinate the functions of ministries and

government departments; and

(c) by a decision published in the Gazette, assign responsibility

for the implementation and administration of any Act of

Parliament to a Cabinet Secretary, to the extent not

inconsistent with any Act of Parliament.

(4) The President may—

(a) perform any other executive function provided for in this

Constitution or in national legislation and, except as otherwise

provided for in this Constitution, may establish an office in the

public service in accordance with the recommendation of the

Public Service Commission;

(b) receive foreign diplomatic and consular representatives;

(c) confer honours in the name of the people and the Republic;

(d) subject to Article 58, declare a state of emergency; and

(e) with the approval of Parliament, declare war.

(5) The President shall ensure that the international obligations of

the Republic are fulfilled through the actions of the relevant Cabinet

Secretaries.

Power of mercy.

133. (1) On the petition of any person, the President may

exercise a power of mercy in accordance with the advice of the

Advisory Committee established under clause (2), by—

(a) granting a free or conditional pardon to a person convicted of

an offence;

(b) postponing the carrying out of a punishment, either for a

specified or indefinite period;

(c) substituting a less severe form of punishment; or

Constitution of Kenya, 2010

(d) remitting all or part of a punishment.

(2) There shall be an Advisory Committee on the Power of Mercy,

comprising—

(a) the Attorney-General;

(b) the Cabinet Secretary responsible for correctional services;

and

(c) at least five other members as prescribed by an Act of

Parliament, none of whom may be a State officer or in public

service.

(3) Parliament shall enact legislation to provide for—

(a) the tenure of the members of the Advisory Committee;

(b) the procedure of the Advisory Committee; and

(c) criteria that shall be applied by the Advisory Committee in

formulating its advice.

(4) The Advisory Committee may take into account the views of

the victims of the offence in respect of which it is considering making

recommendations to the President .

Exercise of presidential powers during temporary incumbency.

134. (1) A person who holds the office of President or who is

authorised in terms of this Constitution to exercise the powers of the

President—

(a) during the period commencing on the date of the first vote in a

presidential election, and ending when the newly elected

President assumes office; or

(b) while the President is absent or incapacitated, or at other

times contemplated in Article 147 (3),

may not exercise the powers of the President specified in clause (2).

(2) The powers referred to in clause (1) are—

(a) the nomination or appointment of the judges of the superior

courts;

(b) the nomination or appointment of any other public officer

whom this Constitution or legislation requires the President to

appoint;77

Constitution of Kenya, 2010

(c) the nomination or appointment or dismissal of Cabinet

Secretaries and other State or Public officers;

(d) the nomination or appointment or dismissal of a high

commissioner, ambassador, or diplomatic or consular

representative;

(e) the power of mercy; and

(f) the authority to confer honours in the name of the people and

the Republic.

Decisions of the President.

135. A decision of the President in the performance of any

function of the President under this Constitution shall be in writing and

shall bear the seal and signature of the President.

Election of the President.

136. (1) The President shall be elected by registered voters in a

national election conducted in accordance with this Constitution and

any Act of Parliament regulating presidential elections.

(2) An election of the President shall be held—

(a) on the same day as a general election of Members of

Parliament, being the second Tuesday in August, in every

fifth year; or

(b) in the circumstances contemplated in Article 146.

Qualifications and disqualifications for election as President.

137. (1) A person qualifies for nomination as a presidential

candidate if the person—

(a) is a citizen by birth;

(b) is qualified to stand for election as a member of Parliament;

(c) is nominated by a political party, or is an independent

candidate; and

(d) is nominated by not fewer than two thousand voters from

each of a majority of the counties.

(2) A person is not qualified for nomination as a presidential

candidate if the person—

(a) owes allegiance to a foreign state; or

Constitution of Kenya, 2010

(b) is a public officer, or is acting in any State or other public

office.

(3) Clause (2) (b) shall not apply to—

(a) the President;

(b) the Deputy President; or

(c) a member of Parliament.

Procedure at presidential election.

138. (1) If only one candidate for President is nominated, that

candidate shall be declared elected.

(2) If two or more candidates for President are nominated, an

election shall be held in each constituency.

(3) In a presidential election—

(a) all persons registered as voters for the purposes of

parliamentary elections are entitled to vote;

(b) the poll shall be taken by secret ballot on the day specified in

prescribed under an Act of Parliament; and

(c) after counting the votes in the polling stations, the

Independent Electoral and Boundaries Commission shall tally

and verify the count and declare the result.

(4) A candidate shall be declared elected as President if the

candidate receives—

(a) more than half of all the votes cast in the election; and

(b) at least twenty-five per cent of the votes cast in each of more

than half of the counties.

(5) If no candidate is elected, a fresh election shall be held within

thirty days after the previous election and in that fresh election the only

candidates shall be—

(a) the candidate, or the candidates, who received the greatest

number of votes; and

(b) the candidate, or the candidates, who received the second

greatest number of votes.79

Constitution of Kenya, 2010

(6) If more than one candidate receives the greatest number of

votes, clause (5) (b) shall not apply and the only candidates in the

fresh election shall be those contemplated in clause (5) ( a).

(7) The candidate who receives the most votes in the fresh

election shall be declared elected as President.

(8) A presidential election shall be cancelled and a new election

held if—

(a) no person has been nominated as a candidate before the

expiry of the period set for the delivery of nominations;

(b) a candidate for election as President or Deputy President dies

on or before the scheduled election date; or

(c) a candidate who would have been entitled to be declared

elected as President, dies before being declared elected as

President.

(9) A new presidential election under clause (8) shall be held

within sixty days after the date set for the previous presidential

election.

(10) Within seven days after the presidential election, the

chairperson of the Independent Electoral and Boundaries Commission

shall—

(a) declare the result of the election; and

(b) deliver a written notification of the result to the Chief Justice

and the incumbent President.

Death before assuming office.

139. (1) If a President-elect dies after being declared elected as

President, but before assuming office—

(a) the Deputy President-elect shall be sworn in as acting

President on the date on which the President-elect would

otherwise have been sworn-in; and

(b) a fresh election to the office of President shall be held within

sixty days after the death of the President-elect.

(2) If the Deputy President-elect dies before assuming office, the

office of the Deputy President shall be declared vacant on the

assumption of office by the person declared elected as the President.

(3) If both the persons declared elected as the President and the

Constitution of Kenya, 2010

Deputy President die before assuming office—

(a) the Speaker of the National Assembly shall act as President

from the date on which the President-elect would otherwise

have been sworn-in; and

(b) a fresh presidential election shall be conducted within sixty

days after the second death.

Questions as to validity of presidential election.

140. (1) A person may file a petition in the Supreme Court to

challenge the election of the President-elect within seven days after

the date of the declaration of the results of the presidential election.

(2) Within fourteen days after the filing of a petition under clause

(1), the Supreme Court shall hear and determine the petition and its

decision shall be final.

(3) If the Supreme Court determines the election of the

President-elect to be invalid, a fresh election shall be held within sixty

days after the determination.

Assumption of office of President.

141. (1) The swearing in of the President-elect shall be in public

before the Chief Justice, or, in the absence of the Chief Justice, the

Deputy Chief Justice.

(2) The President-elect shall be sworn in on the first Tuesday

following—

(a) the fourteenth day after the date of the declaration of the

result of the presidential election, if no petition has been filed

under Article 140; or

(b) the seventh day following the date on which the court renders

a decision declaring the election to be valid, if any petition

has been filed under Article 140.

(3) The President-elect assumes office by taking and subscribing

the oath or affirmation of allegiance, and the oath or affirmation for the

execution of the functions of office, as prescribed in the Third

Schedule.

(4) Parliament shall by legislation provide for the procedure and

ceremony for the swearing-in of a President-elect.81

Constitution of Kenya, 2010

Term of office of President.

142. (1) The President shall hold office for a term beginning on

the date on which the President was sworn in, and ending when the

person next elected President in accordance with Article 136 (2) ( a) is

sworn in.

(2) A person shall not hold office as President for more than two

terms.

Protection from legal proceedings.

143. (1) Criminal proceedings shall not be instituted or continued

in any court against the President or a person performing the functions

of that office, during their tenure of office.

(2) Civil proceedings shall not be instituted in any court against

the President or the person performing the functions of that office

during their tenure of office in respect of anything done or not done in

the exercise of their powers under this Constitution.

(3) Where provision is made in law limiting the time within which

proceedings under clause (1) or (2) may be brought against a person,

a period of time during which the person holds or performs the

functions of the office of the President shall not be taken into account

in calculating the period of time prescribed by that law.

(4) The immunity of the President under this Article shall not

extend to a crime for which the President may be prosecuted under

any treaty to which Kenya is party and which prohibits such immunity.

Removal of President on grounds of incapacity.

144. (1) A member of the National Assembly, supported by at

least a quarter of all the members, may move a motion for the

investigation of the President’s physical or mental capacity to perform

the functions of office.

(2) If a motion under clause (1) is supported by a majority of all

the members of the National Assembly—

(a) the Speaker shall inform the Chief Justice of that resolution

within two days; and

(b) the President shall continue to perform the functions of the

office pending the outcome of the proceedings required by

this Article.

(3) Within seven days after receiving notice of the resolution from

the Speaker, the Chief Justice shall appoint a tribunal consisting of—

Constitution of Kenya, 2010

(a) three persons who are qualified to practise medicine under

the laws of Kenya, nominated by the body which by law is

responsible for regulating the professional practice of

medicine;

(b) one advocate of the High Court nominated by the body which

by law is responsible for regulating the professional practice

of advocates; and

(c) one person nominated by the President.

(4) If the Chief Justice is unable to appoint a tribunal under

clause (3), the Deputy Chief Justice shall appoint such a tribunal.

(5) If the President is unable to nominate the person required to

be nominated under clause (3) ( c), the person shall be nominated by—

(a) a member of the family of the President; or

(b) if no such member is willing or able to make the nomination,

by a close relative of the President.

(6) The tribunal shall inquire into the matter and, within fourteen

days after the appointment, report to the Chief Justice and to the

Speaker of the National Assembly.

(7) The Speaker shall cause the report of the tribunal to be tabled

before the National Assembly within seven days after receiving it.

(8) The report of the tribunal shall be final and not subject to

appeal and if the tribunal reports that the President is capable of

performing the functions of the office, the Speaker of the National

Assembly shall so announce in the National Assembly.

(9) If the tribunal reports that the President is incapable of

performing the functions of the office, the National Assembly shall vote

on whether to ratify the report.

(10) If a majority of all the members of the National Assembly

vote in favour of ratifying the report, the President shall cease to hold

office.

Removal of President by impeachment.

145. (1) A member of the National Assembly, supported by at

least a third of all the members, may move a motion for the

impeachment of the President—83

Constitution of Kenya, 2010

(a) on the ground of a gross violation of a provision of this

Constitution or of any other law;

(b) where there are serious reasons for believing that the

President has committed a crime under national or

international law; or

(c) for gross misconduct.

(2) If a motion under clause (1) is supported by at least two-thirds

of all the members of the National Assembly—

(a) the Speaker shall inform the Speaker of the Senate of that

resolution within two days; and

(b) the President shall continue to perform the functions of the

office pending the outcome of the proceedings required by

this Article.

(3) Within seven days after receiving notice of a resolution from

the Speaker of the National Assembly—

(a) the Speaker of the Senate shall convene a meeting of the

Senate to hear charges against the President; and

(b) the Senate, by resolution, may appoint a special committee

comprising eleven of its members to investigate the matter.

(4) A special committee appointed under clause (3) ( b) shall—

(a) investigate the matter; and

(b) report to the Senate within ten days whether it finds the

particulars of the allegations against the President to have

been substantiated.

(5) The President shall have the right to appear and be

represented before the special committee during its investigations.

(6) If the special committee reports that the particulars of any

allegation against the President—

(a) have not been substantiated, further proceedings shall not be

taken under this Article in respect of that allegation; or

(b) have been substantiated, the Senate shall, after according the

President an opportunity to be heard, vote on the

impeachment charges.

(7) If at least two-thirds of all the members of the Senate vote to

Constitution of Kenya, 2010

uphold any impeachment charge, the President shall cease to hold

office.

Vacancy in the office of President.

146. (1) The office of President shall become vacant if the holder

of the office—

(a) dies;

(b) resigns, in writing, addressed to the Speaker of the National

Assembly; or

(c) otherwise ceases to hold office under Article 144 or 145 or

under any other provision of this Constitution.

(2) When a vacancy occurs in the office of President—

(a) the Deputy President shall assume office as President for the

remainder of the term of the President; or

(b) if the office of Deputy President is vacant, or the Deputy

President is unable to assume the office of President, the

Speaker of the National Assembly shall act as President and

an election to the office of President shall be held within sixty

days after the vacancy arose in the office of President.

(3) A person who assumes the office of President under clause

(2) (a), or following an election required by clause (2) ( b), shall, unless

otherwise removed from office under this Constitution, hold office until

a newly elected President is sworn in following the next regularly

scheduled election under Article 136 (2) ( a).

(4) If the Deputy President assumes office as President under

clause (2) (a), or a person is elected to the office of President under

clause (2) (b), the Deputy President, or the person elected, shall be

deemed for the purposes of Article 142 (2)—

(a) to have served a full term as President if, at the date on which

the person assumed office, more than two and a half years

remain before the date of the next regularly scheduled

election under Article 136 (2) ( a); or

(b) not to have served a term of office as President, in any other

case.

Functions of the Deputy President.

147. (1) The Deputy President shall be the principal assistant of

the President and shall deputise for the President in the execution of 85

Constitution of Kenya, 2010

the President’s functions.

(2) The Deputy President shall perform the functions conferred by

this Constitution and any other functions of the President as the

President may assign.

(3) Subject to Article 134, when the President is absent or is

temporarily incapacitated, and during any other period that the

President decides, the Deputy President shall act as the President.

(4) The Deputy President shall not hold any other State or public

office.

Election and swearing in of Deputy President.

148. (1) Each candidate in a presidential election shall nominate

a person who is qualified for nomination for election as President, as a

candidate for Deputy President.

(2) For the purposes of clause (1), there shall be no separate

nomination process for the Deputy President and Article 137 (1) ( d)

shall not apply to a candidate for Deputy President.

(3) The Independent Electoral and Boundaries Commission shall

declare the candidate nominated by the person who is elected as the

President to be elected as the Deputy President.

(4) The swearing in of the Deputy President-elect shall be before

the Chief Justice or, in the absence of the Chief Justice, the Deputy

Chief Justice and in public.

(5) The Deputy President-elect assumes office by taking and

subscribing—

(a) the oath or affirmation of allegiance; and

(b) the oath or affirmation for the execution of the functions of

office,

as prescribed in the Third Schedule.

(6) The term of office of the Deputy President shall run from the

date of the swearing in of the Deputy President, and shall end—

(a) when the person next elected President at an election under

(b) on the Deputy President assuming the office of President; or

Constitution of Kenya, 2010

(c) on resignation, death or removal from office of the Deputy

President.

(7) The Deputy President may resign from office at any time by

notice, in writing, addressed to the President and the resignation shall

take effect on the date and at the time specified in the notice, if any, or

if a date is not specified, at noon on the day after the notice is

delivered.

(8) A person shall not hold office as Deputy President for more

than two terms.

Vacancy in the office of Deputy President.

149. (1) Within fourteen days after a vacancy in the office of

Deputy President arises, the President shall nominate a person to fill

the vacancy, and the National Assembly shall vote on the nomination

within sixty days after receiving it.

(2) If a person assumes office as Deputy President under clause

(1), then, for the purposes of Article 148 (8), the person shall be

deemed—

(a) to have served a full term as Deputy President if, at the date

on which the person assumed office, more than two and a

half years remain before the date of the next regularly

scheduled election under Article 136 (2) ( a); or

(b) not to have served a term of office as Deputy President, in

any other case.

Removal of Deputy President.

150. (1) The Deputy President may be removed from office—

(a) on the ground of physical or mental incapacity to perform the

functions of the office; or

(b) on impeachment—

(i) on the ground of a gross violation of a provision of this

Constitution or any other law;

(ii) where there are serious reasons to believe that the

Deputy President has committed a crime under national

or international law; or

(iii) for gross misconduct.

(2) The provisions of Articles 144 and 145 relating to the removal

of the President shall apply, with the necessary modifications, to the 87

Constitution of Kenya, 2010

removal of the Deputy President.

Remuneration and benefits of President and Deputy President.

151. (1) The remuneration and benefits payable to the President

and the Deputy President shall be a charge on the Consolidated Fund.

(2) The remuneration, benefits and privileges of the President

and Deputy President shall not be varied to their disadvantage while in

office.

(3) The retirement benefits payable to a former President and a

former Deputy President, the facilities available to and the privileges

enjoyed by them, shall not be varied to their disadvantage during their

lifetime.

PART 3—THE CABINET

Cabinet.

152. (1) The Cabinet consists of—

(a) the President;

(b) the Deputy President;

(c) the Attorney-General; and

(d) not fewer than fourteen and not more than twenty-two Cabinet

Secretaries.

(2) The President shall nominate and, with the approval of the

National Assembly, appoint Cabinet Secretaries.

(3) A Cabinet Secretary shall not be a Member of Parliament.

(4) Each person appointed as a Cabinet Secretary—

(a) assumes office by swearing or affirming faithfulness to the

people and the Republic of Kenya and obedience to this

Constitution, before the President and in accordance with the

Third Schedule; and

(b) may resign by delivering a written statement of resignation to

the President.

(5) The President—

(a) may re-assign a Cabinet Secretary;

Constitution of Kenya, 2010

(b) may dismiss a Cabinet Secretary; and

(c) shall dismiss a Cabinet Secretary if required to do so by a

resolution adopted under clauses (6) to (10).

(6) A member of the National Assembly, supported by at least

one-quarter of all the members of the Assembly, may propose a

motion requiring the President to dismiss a Cabinet Secretary—

(a) on the ground of a gross violation of a provision of this

Constitution or of any other law;

(b) where there are serious reasons for believing that the Cabinet

Secretary has committed a crime under national or

international law; or

(c) for gross misconduct.

(7) If a motion under clause (6) is supported by at least one-third

of the members of the National Assembly—

(a) the Assembly shall appoint a select committee comprising

eleven of its members to investigate the matter; and

(b) the select committee shall, within ten days, report to the

Assembly whether it finds the allegations against the Cabinet

Secretary to be substantiated.

(8) The Cabinet Secretary has the right to appear and be

represented before the select committee during its investigations.

(9) If the select committee reports that it finds the allegations

(a) unsubstantiated, no further proceedings shall be taken; or

(b) substantiated, the National Assembly shall—

(i) afford the Cabinet Secretary an opportunity to be heard;

and

(ii) vote whether to approve the resolution requiring the

Cabinet Secretary to be dismissed.

(10) If a resolution under clause (9) ( b) (ii) requiring the President

to dismiss a Cabinet Secretary is supported by a majority of the

members of the National Assembly—

(a) the Speaker shall promptly deliver the resolution to the

President; and89

Constitution of Kenya, 2010

(b) the President shall dismiss the Cabinet Secretary.

Decisions, responsibility and accountability of the Cabinet.

153. (1) A decision by the Cabinet shall be in writing.

(2) Cabinet Secretaries are accountable individually, and

collectively, to the President for the exercise of their powers and the

performance of their functions.

(3) A Cabinet Secretary shall attend before a committee of the

National Assembly, or the Senate, when required by the committee,

and answer any question concerning a matter for which the Cabinet

Secretary is responsible.

(4) Cabinet Secretaries shall—

(a) act in accordance with this Constitution; and

(b) provide Parliament with full and regular reports concerning

matters under their control.

Secretary to the Cabinet.

154. (1) There is established the office of Secretary to the

Cabinet, which is an office in the public service.

(2) The Secretary to the Cabinet shall—

(a) be nominated and, with the approval of the National

Assembly, appointed by the President; and

(b) may be dismissed by the President.

(3) The Secretary to the Cabinet shall—

(a) have charge of the Cabinet office;

(b) be responsible, subject to the directions of the Cabinet, for

arranging the business, and keeping the minutes, of the

Cabinet;

(c) convey the decisions of the Cabinet to the appropriate

persons or authorities; and

(d) have other functions as directed by the Cabinet.

(4) The Secretary to the Cabinet may resign from office by giving

notice, in writing, to the President.

Constitution of Kenya, 2010

Principal Secretaries.

155. (1) There is established the office of Principal Secretary,

which is an office in the public service.

(2) Each State department shall be under the administration of a

Principal Secretary.

(3) The President shall—

(a) nominate a person for appointment as Principal Secretary

from among persons recommended by the Public Service

Commission; and

(b) with the approval of the National Assembly, appoint Principal

Secretaries.

(4) The President may re-assign a Principal Secretary.

(5) A Principal Secretary may resign from office by giving notice,

in writing, to the President.

PART 4—OTHER OFFICES

Attorney-General.

156. (1) There is established the office of Attorney-General.

(2) The Attorney-General shall be nominated by the President

and, with the approval of the National Assembly, appointed by the

President.

(3) The qualifications for appointment as Attorney-General are

the same as for appointment to the office of Chief Justice.

(4) The Attorney-General—

(a) is the principal legal adviser to the Government;

(b) shall represent the national government in court or in any

other legal proceedings to which the national government is a

party, other than criminal proceedings; and

(c) shall perform any other functions conferred on the office by an

Act of Parliament or by the President.

(5) The Attorney-General shall have authority, with the leave of

the court, to appear as a friend of the court in any civil proceedings to

which the Government is not a party.91

Constitution of Kenya, 2010

(6) The Attorney-General shall promote, protect and uphold the

rule of law and defend the public interest.

(7) The powers of the Attorney-General may be exercised in

person or by subordinate officers acting in accordance with general or

special instructions.

Director of Public Prosecutions.

157. (1) There is established the office of Director of Public

Prosecutions.

(2) The Director of Public Prosecutions shall be nominated and,

with the approval of the National Assembly, appointed by the

President.

(3) The qualifications for appointment as Director of Public

Prosecutions are the same as for the appointment as a judge of the

High Court.

(4) The Director of Public Prosecutions shall have power to direct

the Inspector-General of the National Police Service to investigate any

information or allegation of criminal conduct and the Inspector-General

shall comply with any such direction.

(5) The Director of Public Prosecutions shall hold office for a term

of eight years and shall not be eligible for re-appointment.

(6) The Director of Public Prosecutions shall exercise State

powers of prosecution and may—

(a) institute and undertake criminal proceedings against any

person before any court (other than a court martial) in respect

of any offence alleged to have been committed;

(b) take over and continue any criminal proceedings commenced

in any court (other than a court martial) that have been

instituted or undertaken by another person or authority, with

the permission of the person or authority; and

(c) subject to clause (7) and (8), discontinue at any stage before

judgment is delivered any criminal proceedings instituted by

the Director of Public Prosecutions or taken over by the

Director of Public Prosecutions under paragraph ( b).

(7) If the discontinuance of any proceedings under clause (6) ( c)

takes place after the close of the prosecution’s case, the defendant

shall be acquitted.

Constitution of Kenya, 2010

(8) The Director of Public Prosecutions may not discontinue a

prosecution without the permission of the court.

(9) The powers of the Director of Public Prosecutions may be

exercised in person or by subordinate officers acting in accordance

with general or special instructions.

(10) The Director of Public Prosecutions shall not require the

consent of any person or authority for the commencement of criminal

proceedings and in the exercise of his or her powers or functions, shall

not be under the direction or control of any person or authority.

(11) In exercising the powers conferred by this Article, the

Director of Public Prosecutions shall have regard to the public interest,

the interests of the administration of justice and the need to prevent

and avoid abuse of the legal process.

(12) Parliament may enact legislation conferring powers of

prosecution on authorities other than the Director of Public

Prosecutions.

Removal and resignation of Director of Public Prosecutions.

158. (1) The Director of Public Prosecutions may be removed

from office only on the grounds of—

(a) inability to perform the functions of office arising from mental

or physical incapacity;

(b) non-compliance with Chapter Six;

(c) bankruptcy;

(d) incompetence; or

(e) gross misconduct or misbehaviour.

(2) A person desiring the removal of the Director of Public

Prosecutions may present a petition to the Public Service Commission

which, shall be in writing, setting out the alleged facts constituting the

grounds for the removal of the Director.

(3) The Public Service Commission shall consider the petition

and, if it is satisfied that it discloses the existence of a ground under

clause (1), it shall send the petition to the President.

(4) On receipt and examination of the petition, the President

shall, within fourteen days, suspend the Director of Public

Prosecutions from office pending action by the President in 93

Constitution of Kenya, 2010

accordance with clause (5) and shall, acting in accordance with the

advice of the Public Service Commission, appoint a tribunal consisting

of—

(a) four members from among persons who hold or have held

office as a judge of a superior court, or who are qualified to

be appointed as such;

(b) one advocate of at least fifteen years’ standing nominated by

the statutory body responsible for the professional regulation

of advocates; and

(c) two other persons with experience in public affairs.

(5) The tribunal shall inquire into the matter expeditiously and

report on the facts and make recommendations to the President, who

shall act in accordance with the recommendations of the tribunal.

(6) A Director of Public Prosecutions who is suspended from

office under clause (4) shall be entitled to half of their remuneration

until removed from, or reinstated in, office.

(7) A tribunal appointed under clause (4) shall elect a chairperson

from among its members.

(8) A tribunal appointed under clause (4) shall be responsible for

the regulation of its proceedings.

(9) The Director of Public Prosecutions may resign from office by

giving notice, in writing, to the President.

CHAPTER TEN—JUDICIARY

PART 1—JUDICIAL AUTHORITY AND LEGAL SYSTEM

Judicial authority.

159. (1) Judicial authority is derived from the people and vests in,

and shall be exercised by, the courts and tribunals established by or

under this Constitution.

(2) In exercising judicial authority, the courts and tribunals shall

be guided by the following principles—

(a) justice shall be done to all, irrespective of status;

(b) justice shall not be delayed;

(c) alternative forms of dispute resolution including reconciliation,

Constitution of Kenya, 2010

mediation, arbitration and traditional dispute resolution

mechanisms shall be promoted, subject to clause (3);

(d) justice shall be administered without undue regard to

procedural technicalities; and

(e) the purpose and principles of this Constitution shall be

protected and promoted.

(3) Traditional dispute resolution mechanisms shall not be used

in a way that—

(a) contravenes the Bill of Rights;

(b) is repugnant to justice and morality or results in outcomes that

are repugnant to justice or morality; or

(c) is inconsistent with this Constitution or any written law .

Independence of the Judiciary.

160. (1) In the exercise of judicial authority, the Judiciary, as

constituted by Article 161, shall be subject only to this Constitution and

the law and shall not be subject to the control or direction of any

person or authority.

(2) The office of a judge of a superior court shall not be abolished

while there is a substantive holder of the office.

(3) The remuneration and benefits payable to or in respect of

judges shall be a charge on the Consolidated Fund.

(4) Subject to Article 168(6), the remuneration and benefits

payable to, or in respect of, a judge shall not be varied to the

disadvantage of that judge, and the retirement benefits of a retired

judge shall not be varied to the disadvantage of the retired judge

during the lifetime of that retired judge.

(5) A member of the Judiciary is not liable in an action or suit in

respect of anything done or omitted to be done in good faith in the

lawful performance of a judicial function.

Judicial offices and officers.

161. (1) The Judiciary consists of the judges of the superior

courts, magistrates, other judicial officers and staff.

(2) There is established the office of—

(a) Chief Justice, who shall be the Head of the Judiciary;95

Constitution of Kenya, 2010

(b) Deputy Chief Justice, who shall be the Deputy Head of the

Judiciary; and

(c) Chief Registrar of the Judiciary, who shall be the chief

administrator and accounting officer of the Judiciary.

(3) The Judicial Service Commission may establish other offices

of registrar as may be necessary.

System of courts.

162. (1) The superior courts are the Supreme Court, the Court of

Appeal, the High Court and the courts referred to in clause (2).

(2) Parliament shall establish courts with the status of the High

Court to hear and determine disputes relating to—

(a) employment and labour relations; and

(b) the environment and the use and occupation of, and title to,

land.

(3) Parliament shall determine the jurisdiction and functions of the

courts contemplated in clause (2).

(4) The subordinate courts are the courts established under

Article 169, or by Parliament in accordance with that Article.

PART 2—SUPERIOR COURTS

Supreme Court.

163. (1) There is established the Supreme Court, which shall

consists of—

(a) the Chief Justice, who shall be the president of the court;

(b) the Deputy Chief Justice, who shall—

(i) deputise for the Chief Justice; and

(ii) be the vice-president of the court; and

(c) five other judges.

(2) The Supreme Court shall be properly constituted for the

purposes of its proceedings if it is composed of five judges.

(3) The Supreme Court shall have—

(a) exclusive original jurisdiction to hear and determine disputes

Constitution of Kenya, 2010

relating to the elections to the office of President arising

under Article 140; and

(b) subject to clause (4) and (5), appellate jurisdiction to hear and

determine appeals from—

(i)the Court of Appeal; and

(ii)any other court or tribunal as prescribed by national

legislation.

(4) Appeals shall lie from the Court of Appeal to the Supreme

Court—

(a) as of right in any case involving the interpretation or

application of this Constitution; and

(b) in any other case in which the Supreme Court, or the Court of

Appeal, certifies that a matter of general public importance is

involved, subject to clause (5).

(5) A certification by the Court of Appeal under clause (4) ( b) may

be reviewed by the Supreme Court, and either affirmed, varied or

overturned.

(6) The Supreme Court may give an advisory opinion at the

request of the national government, any State organ, or any county

government with respect to any matter concerning county government.

(7) All courts, other than the Supreme Court, are bound by the

decisions of the Supreme Court.

(8) The Supreme Court shall make rules for the exercise of its

jurisdiction.

(9) An Act of Parliament may make further provision for the

operation of the Supreme Court.

Court of Appeal.

164. (1) There is established the Court of Appeal, which—

(a) shall consist of the number of judges, being not fewer than

twelve, as may be prescribed by an Act of Parliament; and

(b) shall be organised and administered in the manner prescribed

by an Act of Parliament.

(2) There shall be a president of the Court of Appeal who shall be

elected by the judges of the Court of Appeal from among themselves.97

Constitution of Kenya, 2010

(3) The Court of Appeal has jurisdiction to hear appeals from—

(a) the High Court; and

(b) any other court or tribunal as prescribed by an Act of

Parliament.

High Court.

165. (1) There is established the High Court, which—

(a) shall consist of the number of judges prescribed by an Act of

Parliament; and

(b) shall be organised and administered in the manner prescribed

by an Act of Parliament.

(2) There shall be a Principal Judge of the High Court, who shall

be elected by the judges of the High Court from among themselves.

(3) Subject to clause (5), the High Court shall have—

(a) unlimited original jurisdiction in criminal and civil matters;

(b) jurisdiction to determine the question whether a right or

fundamental freedom in the Bill of Rights has been denied,

violated, infringed or threatened;

(c) jurisdiction to hear an appeal from a decision of a tribunal

appointed under this Constitution to consider the removal of a

person from office, other than a tribunal appointed under

Article 144;

(d) jurisdiction to hear any question respecting the interpretation

of this Constitution including the determination of—

(i) the question whether any law is inconsistent with or in

contravention of this Constitution;

(ii) the question whether anything said to be done under the

authority of this Constitution or of any law is

inconsistent with, or in contravention of, this

Constitution;

(iii) any matter relating to constitutional powers of State

organs in respect of county governments and any

matter relating to the constitutional relationship

between the levels of government; and

(iv) a question relating to conflict of laws under Article 191;

and

Constitution of Kenya, 2010

(e) any other jurisdiction, original or appellate, conferred on it by

legislation.

(4) Any matter certified by the court as raising a substantial

question of law under clause (3) ( b) or (d) shall be heard by an uneven

number of judges, being not less than three, assigned by the Chief

Justice.

(5) The High Court shall not have jurisdiction in respect of

matters—

(a) reserved for the exclusive jurisdiction of the Supreme Court

under this Constitution; or

(b) falling within the jurisdiction of the courts contemplated in

(6) The High Court has supervisory jurisdiction over the

subordinate courts and over any person, body or authority exercising a

judicial or quasi-judicial function, but not over a superior court.

(7) For the purposes of clause (6), the High Court may call for the

record of any proceedings before any subordinate court or person,

body or authority referred to in clause (6), and may make any order or

give any direction it considers appropriate to ensure the fair

administration of justice.

Appointment of Chief Justice, Deputy Chief Justice and other

judges.

166. (1) The President shall appoint—

(a) the Chief Justice and the Deputy Chief Justice, in accordance

with the recommendation of the Judicial Service Commission,

and subject to the approval of the National Assembly; and

(b) all other judges, in accordance with the recommendation of

the Judicial Service Commission.

(2) Each judge of a superior court shall be appointed from among

persons who—

(a) hold a law degree from a recognised university, or are

advocates of the High Court of Kenya, or possess an

equivalent qualification in a common-law jurisdiction;

(b) possess the experience required under clause (3) to (6) as

applicable, irrespective of whether that experience was

gained in Kenya or in another Commonwealth common-law

jurisdiction; and99

Constitution of Kenya, 2010

(c) have a high moral character, integrity and impartiality.

(3) The Chief Justice and other judges of the Supreme Court

shall be appointed from among persons who have—

(a) at least fifteen years experience as a superior court judge; or

(b) at least fifteen years’ experience as a distinguished academic,

judicial officer, legal practitioner or such experience in other

relevant legal field; or

(c) held the qualifications specified in paragraphs ( a) and (b) for a

period amounting, in the aggregate, to fifteen years.

(4) Each judge of the Court of Appeal shall be appointed from

among persons who have—

(a) at least ten years’ experience as a superior court judge; or

(b) at least ten years’ experience as a distinguished academic or

legal practitioner or such experience in other relevant legal

field; or

(c) held the qualifications mentioned in paragraphs ( a) and (b) for

a period amounting, in the aggregate, to ten years.

(5) Each judge of the High Court shall be appointed from among

persons who have—

(a) at least ten years’ experience as a superior court judge or

professionally qualified magistrate; or

(b) at least ten years’ experience as a distinguished academic or

legal practitioner or such experience in other relevant legal

field; or

(c) held the qualifications specified in paragraphs ( a) and (b) for

a period amounting, in the aggregate, to ten years.

Tenure of office of the Chief Justice and other judges.

167. (1) A judge shall retire from office on attaining the age of

seventy years, but may elect to retire at any time after attaining the

age of sixty-five years.

(2) The Chief Justice shall hold office for a maximum of ten years

or until retiring under clause (1), whichever is the earlier.

(3) If the Chief Justice’s term of office expires before the Chief

Justice retires under clause (1), the Chief Justice may continue in 100

Constitution of Kenya, 2010

office as a judge of the Supreme Court.

(4) If, on the expiry of the term of office of a Chief Justice, the

Chief Justice opts to remain on the Supreme Court under clause (3),

the next person appointed as Chief Justice may be selected in

accordance with Article 166 (1), even though that appointment may

result in there being more than the maximum permitted number of

Supreme Court judges holding office.

(5) The Chief Justice and any other judge may resign from office

by giving notice, in writing, to the President.

Removal from office.

168. (1) A judge of a superior court may be removed from office

only on the grounds of—

(a) inability to perform the functions of office arising from mental

or physical incapacity;

(b) a breach of a code of conduct prescribed for judges of the

superior courts by an Act of Parliament;

(c) bankruptcy;

(d) incompetence; or

(e) gross misconduct or misbehaviour.

(2) The removal of a judge may be initiated only by the Judicial

Service Commission acting on its own motion, or on the petition of any

person to the Judicial Service Commission.

(3) A petition by a person to the Judicial Service Commission

under clause (2) shall be in writing, setting out the alleged facts

constituting the grounds for the judges removal.

(4) The Judicial Service Commission shall consider the petition

and, if it is satisfied that the petition discloses a ground for removal

under clause (1), send the petition to the President.

(5) The President shall, within fourteen days after receiving the

petition, suspend the judge from office and, acting in accordance with

the recommendation of the Judicial Service Commission—

(a) in the case of the Chief Justice, appoint a tribunal consisting

of—

(i) the Speaker of the National Assembly, as chairperson;101

Constitution of Kenya, 2010

(ii) three superior court judges from common-law jurisdictions;

(iii) one advocate of fifteen years standing; and

(iv) two other persons with experience in public affairs; or

(b) in the case of a judge other than the Chief Justice, appoint a

tribunal consisting of—

(i) a chairperson and three other members from among

persons who hold or have held office as a judge of a

superior court, or who are qualified to be appointed as

such but who, in either case, have not been members

of the Judicial Service Commission at any time within

the immediately preceding three years;

(ii) one advocate of fifteen years standing; and

(iii) two other persons with experience in public affairs.

(6) Despite Article 160 (4), the remuneration and benefits payable

to a judge who is suspended from office under clause (5) shall be

adjusted to one half until such time as the judge is removed from, or

reinstated in, office.

(7) A tribunal appointed under clause (5) shall—

(a) be responsible for the regulation of its proceedings, subject to

any legislation contemplated in clause (10); and

(b) inquire into the matter expeditiously and report on the facts

and make binding recommendations to the President.

(8) A judge who is aggrieved by a decision of the tribunal under

this Article may appeal against the decision to the Supreme Court,

within ten days after the tribunal makes its recommendations.

(9) The President shall act in accordance with the

recommendations made by the tribunal on the later of—

(a) the expiry of the time allowed for an appeal under clause (8),

if no such appeal is taken; or

(b) the completion of all rights of appeal in any proceedings

allowed for under clause (8), if such an appeal is taken and

the final order in the matter affirms the tribunal’s

recommendations.

(10) Parliament shall enact legislation providing for the procedure

of a tribunal appointed under this Article.102

Constitution of Kenya, 2010

PART 3—SUBORDINATE COURTS

Subordinate courts.

169. (1) The subordinate courts are—

(a) the Magistrates courts;

(b) the Kadhis’ courts;

(c) the Courts Martial; and

(d) any other court or local tribunal as may be established by an

Act of Parliament, other than the courts established as

required by Article 162 (2).

(2) Parliament shall enact legislation conferring jurisdiction,

functions and powers on the courts established under clause (1).

Kadhis’ Courts.

170. (1) There shall be a Chief Kadhi and such number, being not

fewer than three, of other Kadhis as may be prescribed under an Act of

Parliament.

(2) A person shall not be qualified to be appointed to hold or act

in the office of Kadhi unless the person—

(a) professes the Muslim religion; and

(b) possesses such knowledge of the Muslim law applicable to

any sects of Muslims as qualifies the person, in the opinion of

the Judicial Service Commission, to hold a Kadhi’s court.

(3) Parliament shall establish Kadhis’ courts, each of which shall

have the jurisdiction and powers conferred on it by legislation, subject

to clause (5).

(4) The Chief Kadhi and the other Kadhis, or the Chief Kadhi and

such of the other Kadhis (not being fewer than three in number) as

may be prescribed under an Act of Parliament, shall each be

empowered to hold a Kadhi’s court having jurisdiction within Kenya.

(5) The jurisdiction of a Kadhis’ court shall be limited to the

determination of questions of Muslim law relating to personal status,

marriage, divorce or inheritance in proceedings in which all the parties

profess the Muslim religion and submit to the jurisdiction of the Kadhi’s

courts.103

Constitution of Kenya, 2010

PART 4—JUDICIAL SERVICE COMMISSION

Establishment of the Judicial Service Commission.

171. (1) There is established the Judicial Service Commission.

(2) The Commission shall consist of—

(a) the Chief Justice, who shall be the chairperson of the

Commission;

(b) one Supreme Court judge elected by the judges of the

Supreme Court;

(c) one Court of Appeal judge elected by the judges of the Court

of Appeal;

(d) one High Court judge and one magistrate, one a woman and

one a man, elected by the members of the association of

judges and magistrates;

(e) the Attorney-General;

(f) two advocates, one a woman and one a man, each of whom

has at least fifteen years’ experience, elected by the

members of the statutory body responsible for the

professional regulation of advocates;

(g) one person nominated by the Public Service Commission;

and

(h) one woman and one man to represent the public, not being

lawyers, appointed by the President with the approval of the

National Assembly.

(3) The Chief Registrar of the Judiciary shall be the Secretary to

the Commission.

(4) Members of the Commission, apart from the Chief Justice and

the Attorney-General, shall hold office, provided that they remain

qualified, for a term of five years and shall be eligible to be nominated

for one further term of five years.

Functions of the Judicial Service Commission.

172. (1) The Judicial Service Commission shall promote and

facilitate the independence and accountability of the judiciary and the

efficient, effective and transparent administration of justice and shall—

(a) recommend to the President persons for appointment as

judges;104

Constitution of Kenya, 2010

(b) review and make recommendations on the conditions of

service of—

(i)judges and judicial officers, other than their

remuneration; and

(ii)the staff of the Judiciary;

(c) appoint, receive complaints against, investigate and remove

from office or otherwise discipline registrars, magistrates,

other judicial officers and other staff of the Judiciary, in the

manner prescribed by an Act of Parliament;

(d) prepare and implement programmes for the continuing

education and training of judges and judicial officers; and

(e) advise the national government on improving the efficiency of

the administration of justice.

(2) In the performance of its functions, the Commission shall be

guided by the following—

(a) competitiveness and transparent processes of appointment of

judicial officers and other staff of the judiciary; and

(b) the promotion of gender equality.

Judiciary Fund.

173. (1) There is established a fund to be known as the Judiciary

Fund which shall be administered by the Chief Registrar of the

Judiciary.

(2) The Fund shall be used for administrative expenses of the

Judiciary and such other purposes as may be necessary for the

discharge of the functions of the Judiciary.

(3) Each financial year, the Chief Registrar shall prepare

estimates of expenditure for the following year, and submit them to the

National Assembly for approval.

(4) On approval of the estimates by the National Assembly, the

expenditure of the Judiciary shall be a charge on the Consolidated

Fund and the funds shall be paid directly into the Judiciary Fund.

(5) Parliament shall enact legislation to provide for the regulation

of the Fund.105

Constitution of Kenya, 2010

CHAPTER ELEVEN—DEVOLVED GOVERNMENT

PART 1—OBJECTS AND PRINCIPLES OF DEVOLVED GOVERNMENT

Objects of devolution.

174. The objects of the devolution of government are—

(a) to promote democratic and accountable exercise of power;

(b) to foster national unity by recognising diversity;

(c) to give powers of self-governance to the people and enhance

the participation of the people in the exercise of the powers of

the State and in making decisions affecting them;

(d) to recognise the right of communities to manage their own

affairs and to further their development;

(e) to protect and promote the interests and rights of minorities

and marginalised communities;

(f) to promote social and economic development and the

provision of proximate, easily accessible services throughout

Kenya;

(g) to ensure equitable sharing of national and local resources

throughout Kenya;

(h) to facilitate the decentralisation of State organs, their

functions and services, from the capital of Kenya; and

(i)to enhance checks and balances and the separation of

powers.

Principles of devolved government.

175. County governments established under this Constitution

shall reflect the following principles—

(a) county governments shall be based on democratic principles

and the separation of powers;

(b) county governments shall have reliable sources of revenue to

enable them to govern and deliver services effectively; and

(c) no more than two-thirds of the members of representative

bodies in each county government shall be of the same

gender.106

Constitution of Kenya, 2010

PART 2—COUNTY GOVERNMENTS

County governments.

176. (1) There shall be a county government for each county,

consisting of a county assembly and a county executive.

(2) Every county government shall decentralise its functions and

the provision of its services to the extent that it is efficient and

practicable to do so.

Membership of county assembly.

177. (1) A county assembly consists of—

(a) members elected by the registered voters of the wards, each

ward constituting a single member constituency, on the same

day as a general election of Members of Parliament, being

the second Tuesday in August, in every fifth year;

(b) the number of special seat members necessary to ensure that

no more than two-thirds of the membership of the assembly

are of the same gender;

(c) the number of members of marginalised groups, including

persons with disabilities and the youth, prescribed by an Act

of Parliament; and

(d) the Speaker, who is an ex officio member.

(2) The members contemplated in clause (1) ( b) and (c) shall, in

each case, be nominated by political parties in proportion to the seats

received in that election in that county by each political party under

paragraph (a) in accordance with Article 90.

(3) The filling of special seats under clause (1) ( b) shall be

determined after declaration of elected members from each ward.

(4) A county assembly is elected for a term of five years.

Speaker of a county assembly.

178. (1) Each county assembly shall have a speaker elected by

the county assembly from among persons who are not members of the

assembly.

(2) A sitting of the county assembly shall be presided over by—

(a) the speaker of the assembly; or

(b) in the absence of the speaker, another member of the

assembly elected by the assembly.107

Constitution of Kenya, 2010

(3) Parliament shall enact legislation providing for the election

and removal from office of speakers of the county assemblies.

County executive committees.

179. (1) The executive authority of the county is vested in, and

exercised by, a county executive committee.

(2) The county executive committee consists of—

(a) the county governor and the deputy county governor; and

(b) members appointed by the county governor, with the approval

of the assembly, from among persons who are not members

of the assembly.

(3) The number of members appointed under clause (2) ( b) shall

not exceed—

(a) one-third of the number of members of the county assembly, if

the assembly has less than thirty members; or

(b) ten, if the assembly has thirty or more members.

(4) The county governor and the deputy county governor are the

chief executive and deputy chief executive of the county, respectively.

(5) When the county governor is absent, the deputy county

governor shall act as the county governor.

(6) Members of a county executive committee are accountable to

the county governor for the performance of their functions and exercise

of their powers.

(7) If a vacancy arises in the office of the county governor, the

members of the county executive committee appointed under clause

(2) (b) cease to hold office.

Election of county governor and deputy county governor.

180. (1) The county governor shall be directly elected by the

voters registered in the county, on the same day as a general election

of Members of Parliament, being the second Tuesday in August, in

every fifth year.

(2) To be eligible for election as county governor, a person must

be eligible for election as a member of the county assembly.

(3) If only one candidate for county governor is nominated, that

candidate shall be declared elected.108

Constitution of Kenya, 2010

(4) If two or more candidates are nominated, an election shall be

held in the county and the candidate who receives the greatest number

of votes shall be declared elected.

(5) Each candidate for election as county governor shall

nominate a person who is qualified for nomination for election as

county governor as a candidate for deputy governor.

(6) The Independent Electoral and Boundaries Commission shall

not conduct a separate election for the deputy governor but shall

declare the candidate nominated by the person who is elected county

governor to have been elected as the deputy governor.

(7) A person shall not hold office—

(a) as a county governor for more than two terms; or

(b) as a deputy county governor for more than two terms.

(8) For the purposes of clause (7), a person who has assumed

the office of county governor shall be deemed to have served a full

term, subject only to Article 182 (3) ( b).

Removal of a county governor.

181. (1) A county governor may be removed from office on any of

the following grounds—

(a) gross violation of this Constitution or any other law;

(b) where there are serious reasons for believing that the county

governor has committed a crime under national or

international law;

(c) abuse of office or gross misconduct; or

(d) physical or mental incapacity to perform the functions of office

of county governor.

(2) Parliament shall enact legislation providing for the procedure

of removal of a county governor on any of the grounds specified in

clause (1).

Vacancy in the office of county governor.

182. (1) The office of the county governor shall become vacant if

the holder of the office—

(a) dies;109

Constitution of Kenya, 2010

(b) resigns, in writing, addressed to the speaker of the county

assembly;

(c) ceases to be eligible to be elected county governor under

(d) is convicted of an offence punishable by imprisonment for at

least twelve months; or

(e) is removed from office under this Constitution.

(2) If a vacancy occurs in the office of county governor, the

deputy county governor shall assume office as county governor for the

remainder of the term of the county governor.

(3) If a person assumes office as county governor under clause

(2), the person shall be deemed for the purposes of Article 180 (7)—

(a) to have served a full term as county governor if, at the date on

which the person assumed office, more than two and a half

years remain before the date of the next regularly scheduled

election under Article 180 (1); or

(b) not to have served a term of office as county governor, in any

other case.

(4) If a vacancy occurs in the office of county governor and that of

deputy county governor, or if the deputy county governor is unable to

act, the speaker of the county assembly shall act as county governor.

(5) If a vacancy occurs in the circumstances contemplated by

clause (4), an election to the office of county governor shall be held

within sixty days after the speaker assumes the office of county

governor.

(6) A person who assumes the office of county governor under

this Article shall, unless otherwise removed from office under this

Constitution, hold office until the newly elected county governor

assumes office following the next election held under Article 180 (1).

Functions of county executive committees

183. (1) A county executive committee shall—

(a) implement county legislation;

(b) implement, within the county, national legislation to the extent

that the legislation so requires; 110

Constitution of Kenya, 2010

(c) manage and coordinate the functions of the county

administration and its departments; and

(d) perform any other functions conferred on it by this

Constitution or national legislation.

(2) A county executive committee may prepare proposed

legislation for consideration by the county assembly.

(3) The county executive committee shall provide the county

assembly with full and regular reports on matters relating to the county.

Urban areas and cities.

184. (1) National legislation shall provide for the governance

and management of urban areas and cities and shall, in particular—

(a) establish criteria for classifying areas as urban areas and

cities,

(b) establish the principles of governance and management of

urban areas and cities; and

(c) provide for participation by residents in the governance of

urban areas and cities.

(2) National legislation contemplated in clause (1) may include

mechanisms for identifying different categories of urban areas and

cities, and for their governance.

Legislative authority of county assemblies.

185. (1) The legislative authority of a county is vested in, and

exercised by, its county assembly.

(2) A county assembly may make any laws that are necessary

for, or incidental to, the effective performance of the functions and

exercise of the powers of the county government under the Fourth

Schedule.

(3) A county assembly, while respecting the principle of the

separation of powers, may exercise oversight over the county

executive committee and any other county executive organs.

(4) A county assembly may receive and approve plans and

policies for—

(a) the management and exploitation of the county’s resources;

and111

Constitution of Kenya, 2010

(b) the development and management of its infrastructure and

institutions.

PART 3—FUNCTIONS AND POWERS OF COUNTY GOVERNMENTS

Respective functions and powers of national and county

governments.

186. (1) Except as otherwise provided by this Constitution, the

functions and powers of the national government and the county

governments, respectively, are as set out in the Fourth Schedule.

(2) A function or power that is conferred on more than one level

of government is a function or power within the concurrent jurisdiction

of each of those levels of government.

(3) A function or power not assigned by this Constitution or

national legislation to a county is a function or power of the national

government.

(4) For greater certainty, Parliament may legislate for the

Republic on any matter.

Transfer of functions and powers between levels of government.

187. (1) A function or power of government at one level may be

transferred to a government at the other level by agreement between

the governments if—

(a) the function or power would be more effectively performed or

exercised by the receiving government; and

(b) the transfer of the function or power is not prohibited by the

legislation under which it is to be performed or exercised.

(2) If a function or power is transferred from a government at one

level to a government at the other level—

(a) arrangements shall be put in place to ensure that the

resources necessary for the performance of the function or

exercise of the power are transferred; and

(b) constitutional responsibility for the performance of the function

or exercise of the power shall remain with the government to

which it is assigned by the Fourth Schedule.112

Constitution of Kenya, 2010

PART 4—THE BOUNDARIES OF COUNTIES

Boundaries of counties.

188. (1) The boundaries of a county may be altered only by a

resolution—

(a) recommended by an independent commission set up for that

purpose by Parliament; and

(b) passed by—

(i)the National Assembly, with the support of at least

two-thirds of all of the members of the Assembly; and

(ii) the Senate, with the support of at least two-thirds of all of

the county delegations.

(2) The boundaries of a county may be altered to take into

account—

(a) population density and demographic trends;

(b) physical and human infrastructure;

(c) historical and cultural ties;

(d) the cost of administration;

(e) the views of the communities affected;

(f) the objects of devolution of government; and

(g) geographical features.

PART 5—RELATIONSHIPS BETWEEN GOVERNMENTS

Cooperation between national and county governments.

189. (1) Government at either level shall—

(a) perform its functions, and exercise its powers, in a manner

that respects the functional and institutional integrity of

government at the other level, and respects the constitutional

status and institutions of government at the other level and, in

the case of county government, within the county level;

(b) assist, support and consult and, as appropriate, implement

the legislation of the other level of government; and

(c) liaise with government at the other level for the purpose of 113

Constitution of Kenya, 2010

exchanging information, coordinating policies and

administration and enhancing capacity.

(2) Government at each level, and different governments at the

county level, shall co-operate in the performance of functions and

exercise of powers and, for that purpose, may set up joint committees

and joint authorities.

(3) In any dispute between governments, the governments shall

make every reasonable effort to settle the dispute, including by means

of procedures provided under national legislation.

(4) National legislation shall provide procedures for settling

inter-governmental disputes by alternative dispute resolution

mechanisms, including negotiation, mediation and arbitration.

Support for county governments.

190. (1) Parliament shall by legislation ensure that county

governments have adequate support to enable them to perform their

functions.

(2) County governments shall operate financial management

systems that comply with any requirements prescribed by national

legislation.

(3) Parliament shall, by legislation, provide for intervention by the

national government if a county government—

(a) is unable to perform its functions; or

(b) does not operate a financial management system that

complies with the requirements prescribed by national

legislation.

(4) Legislation under clause (3) may, in particular, authorise the

national government—

(a) to take appropriate steps to ensure that the county

government’s functions are performed and that it operates a

financial management system that complies with the

prescribed requirements; and

(b) if necessary, to assume responsibility for the relevant

functions.

(5) The legislation under clause (3) shall—114

Constitution of Kenya, 2010

(a) require notice to be given to a county government of any

measures that the national government intends to take;

(b) permit the national government to take only measures that are

necessary;

(c) require the national government, when it intervenes, to take

measures that will assist the county government to resume

full responsibility for its functions; and

(d) provide for a process by which the Senate may bring the

intervention by the national government to an end.

Conflict of laws.

191. (1) This Article applies to conflicts between national and

county legislation in respect of matters falling within the concurrent

jurisdiction of both levels of government.

(2) National legislation prevails over county legislation if—

(a) the national legislation applies uniformly throughout Kenya and

any of the conditions specified in clause (3) is satisfied; or

(b) the national legislation is aimed at preventing unreasonable

action by a county that—

(i)is prejudicial to the economic, health or security

interests of Kenya or another county; or

(ii) impedes the implementation of national economic policy.

(3) The following are the conditions referred to in clause (2) ( a)—

(a) the national legislation provides for a matter that cannot be

regulated effectively by legislation enacted by the individual

counties;

(b) the national legislation provides for a matter that, to be dealt

with effectively, requires uniformity across the nation, and the

national legislation provides that uniformity by establishing—

(i)norms and standards; or

(ii) national policies; or

(c) the national legislation is necessary for—

(i)the maintenance of national security;

(ii)the maintenance of economic unity;115

Constitution of Kenya, 2010

(iii) the protection of the common market in respect of the

mobility of goods, services, capital and labour;

(iv) the promotion of economic activities across county

boundaries;

(v)the promotion of equal opportunity or equal access to

government services; or

(vi) the protection of the environment.

(4) County legislation prevails over national legislation if neither

of the circumstances contemplated in clause (2) apply.

(5) In considering an apparent conflict between legislation of

different levels of government, a court shall prefer a reasonable

interpretation of the legislation that avoids a conflict to an alternative

interpretation that results in conflict.

(6) A decision by a court that a provision of legislation of one

level of government prevails over a provision of legislation of another

level of government does not invalidate the other provision, but the

other provision is inoperative to the extent of the inconsistency.

PART 6—SUSPENSION OF COUNTY GOVERNMENTS

Suspension of a county government.

192. (1) The President may suspend a county government—

(a) in an emergency arising out of internal conflict or war; or

(b) in any other exceptional circumstances.

(2) A county government shall not be suspended under clause (1)

(b) unless an independent commission of inquiry has investigated

allegations against the county government, the President is satisfied

that the allegations are justified and the Senate has authorised the

suspension.

(3) During a suspension under this Article, arrangements shall be

made for the performance of the functions of a county government in

accordance with an Act of Parliament.

(4) The Senate may at any time terminate the suspension.

(5) A suspension under this Article shall not extend beyond a

period of ninety days.116

Constitution of Kenya, 2010

(6) On the expiry of the period provided for under clause (5),

elections for the relevant county government shall be held.

PART 7—GENERAL

Qualifications for election as member of county assembly.

193. (1) Unless disqualified under clause (2), a person is eligible

for election as a member of a county assembly if the person—

(a) is registered as a voter;

(b) satisfies any educational, moral and ethical requirements

prescribed by this Constitution or an Act of Parliament; and

(c) is either—

(i)nominated by a political party; or

(ii) an independent candidate supported by at least five

hundred registered voters in the ward concerned.

(2) A person is disqualified from being elected a member of a

county assembly if the person—

(a) is a State officer or other public officer, other than a member

of the county assembly;

(b) has, at any time within the five years immediately before the

date of election, held office as a member of the Independent

Electoral and Boundaries Commission;

(c) has not been a citizen of Kenya for at least the ten years

immediately preceding the date of election;

(d) is of unsound mind;

(e) is an undischarged bankrupt;

(f) is serving a sentence of imprisonment of at least six months;

or

(g) has been found, in accordance with any law, to have misused

or abused a State office or public office or to have

contravened Chapter Six.

(3) A person is not disqualified under clause (2) unless all

possibility of appeal or review of the relevant sentence or decision has

been exhausted.117

Constitution of Kenya, 2010

Vacation of office of member of county assembly.

194. (1) The office of a member of a county assembly becomes

vacant—

(a) if the member dies;

(b) if the member is absent from eight sittings of the assembly

without permission, in writing, of the speaker of the assembly,

and is unable to offer satisfactory explanation for the

absence;

(c) if the member is removed from office under this Constitution

or legislation enacted under Article 80;

(d) if the member resigns in writing addressed to the speaker of

the assembly;

(e) if, having been elected to the assembly—

(i)as a member of a political party, the member resigns

from the party, or is deemed to have resigned from the

party as determined in accordance with the legislation

contemplated in clause (2); or

(ii) as an independent candidate, the member joins a political

party;

(f)at the end of the term of the assembly; or

(g) if the member becomes disqualified for election on grounds

specified in Article 193 (2).

(2) Parliament shall enact legislation providing for the

circumstances under which a member of a political party shall be

deemed, for the purposes of clause (1) ( e), to have resigned from the

party.

County assembly power to summon witnesses.

195. (1) A county assembly or any of its committees has power to

summon any person to appear before it for the purpose of giving

evidence or providing information.

(2) For the purposes of clause (1), an assembly has the same

powers as the High Court to—

(a) enforce the attendance of witnesses and examining them on

oath, affirmation or otherwise;

(b) compel the production of documents; and118

Constitution of Kenya, 2010

(c) issue a commission or request to examine witnesses abroad.

Public participation and county assembly powers, privileges and

immunities.

196. (1) A county assembly shall—

(a) conduct its business in an open manner, and hold its sittings

and those of its committees, in public; and

(b) facilitate public participation and involvement in the legislative

and other business of the assembly and its committees.

(2) A county assembly may not exclude the public, or any media,

from any sitting unless in exceptional circumstances the speaker has

determined that there are justifiable reasons for doing so.

(3) Parliament shall enact legislation providing for the powers,

privileges and immunities of county assemblies, their committees and

members.

County assembly gender balance and diversity.

197. (1) Not more than two-thirds of the members of any county

assembly or county executive committee shall be of the same gender.

(2) Parliament shall enact legislation to—

(a) ensure that the community and cultural diversity of a county is

reflected in its county assembly and county executive

committee; and

(b) prescribe mechanisms to protect minorities within counties.

County government during transition.

198. While an election is being held to constitute a county

assembly under this Chapter, the executive committee of the county,

as last constituted remains competent to perform administrative

functions until a new executive committee is constituted after the

election.

Publication of county legislation.

199. (1) County legislation does not take effect unless published

in the Gazette.

(2) National and county legislation may prescribe additional

requirements in respect of the publication of county legislation.119

Constitution of Kenya, 2010

Legislation on Chapter.

200. (1) Parliament shall enact legislation providing for all matters

necessary or convenient to give effect to this Chapter.

(2) In particular, provision may be made with respect to—

(a) the governance of the capital city, other cities and urban

areas;

(b) the transfer of functions and powers by one level of

government to another, including the transfer of legislative

powers from the national government to county governments;

(c) the manner of election or appointment of persons to, and their

removal from, offices in county governments, including the

qualifications of voters and candidates;

(d) the procedure of assemblies and executive committees

including the chairing and frequency of meetings, quorums

and voting; and

(e) the suspension of assemblies and executive committees.

CHAPTER TWELVE—PUBLIC FINANCE

PART I—PRINCIPLES AND FRAMEWORK OF PUBLIC FINANCE

Principles of public finance.

201. The following principles shall guide all aspects of public

finance in the Republic—

(a) there shall be openness and accountability, including public

participation in financial matters;

(b) the public finance system shall promote an equitable society,

and in particular—

(i)the burden of taxation shall be shared fairly;

(ii)revenue raised nationally shall be shared equitably

among national and county governments; and

(iii) expenditure shall promote the equitable development of

the country, including by making special provision for

marginalised groups and areas;

(c) the burdens and benefits of the use of resources and public

borrowing shall be shared equitably between present and

future generations; 120

Constitution of Kenya, 2010

(d) public money shall be used in a prudent and responsible way;

and

(e) financial management shall be responsible, and fiscal

reporting shall be clear.

Equitable sharing of national revenue.

202. (1) Revenue raised nationally shall be shared equitably

among the national and county governments.

(2) County governments may be given additional allocations from

the national government’s share of the revenue, either conditionally or

unconditionally.

Equitable share and other financial laws.

203. (1) The following criteria shall be taken into account in

determining the equitable shares provided for under Article 202 and in

all national legislation concerning county government enacted in terms

of this Chapter—

(a) the national interest;

(b) any provision that must be made in respect of the public debt

and other national obligations;

(c) the needs of the national government, determined by

objective criteria;

(d) the need to ensure that county governments are able to

perform the functions allocated to them;

(e) the fiscal capacity and efficiency of county governments;

(f)developmental and other needs of counties;

(g) economic disparities within and among counties and the need

to remedy them;

(h) the need for affirmative action in respect of disadvantaged

areas and groups;

(i)the need for economic optimisation of each county and to

provide incentives for each county to optimise its capacity to

raise revenue;

(j)the desirability of stable and predictable allocations of

revenue; and121

Constitution of Kenya, 2010

(k) the need for flexibility in responding to emergencies and other

temporary needs, based on similar objective criteria.

(2) For every financial year, the equitable share of the revenue

raised nationally that is allocated to county governments shall be not

less than fifteen per cent of all revenue collected by the national

government.

(3) The amount referred to in clause (2) shall be calculated on the

basis of the most recent audited accounts of revenue received, as

approved by the National Assembly.

Equalisation Fund.

204. (1) There is established an Equalisation Fund into which

shall be paid one half per cent of all the revenue collected by the

national government each year calculated on the basis of the most

recent audited accounts of revenue received, as approved by the

National Assembly.

(2) The national government shall use the Equalisation Fund only

to provide basic services including water, roads, health facilities and

electricity to marginalised areas to the extent necessary to bring the

quality of those services in those areas to the level generally enjoyed

by the rest of the nation, so far as possible.

(3) The national government may use the Equalisation Fund—

(a) only to the extent that the expenditure of those funds has

been approved in an Appropriation Bill enacted by

Parliament; and

(b) either directly, or indirectly through conditional grants to

counties in which marginalised communities exist.

(4) The Commission on Revenue Allocation shall be consulted

and its recommendations considered before Parliament passes any

Bill appropriating money out of the Equalisation Fund.

(5) Any unexpended money in the Equalisation Fund at the end

of a particular financial year shall remain in that Fund for use in

accordance with clauses (2) and (3) during any subsequent financial

year.

(6) This Article lapses twenty years after the effective date,

subject to clause (7).

(7) Parliament may enact legislation suspending the effect of

clause (6) for a further fixed period of years, subject to clause (8).122

Constitution of Kenya, 2010

(8) Legislation under clause (7) shall be supported by more than

half of all the members of the National Assembly, and more than half

of all the county delegations in the Senate.

(9) Money shall not be withdrawn from the Equalisation Fund

unless the Controller of Budget has approved the withdrawal.

Consultation on financial legislation affecting counties.

205. (1) When a Bill that includes provisions dealing with the

sharing of revenue, or any financial matter concerning county

governments is published, the Commission on Revenue Allocation

shall consider those provisions and may make recommendations to

the National Assembly and the Senate.

(2) Any recommendations made by the Commission shall be

tabled in Parliament, and each House shall consider the

recommendations before voting on the Bill.

PART 2—OTHER PUBLIC FUNDS

Consolidated Fund and other public funds.

206. (1) There is established the Consolidated Fund into which

shall be paid all money raised or received by or on behalf of the

national government, except money that—

(a) is reasonably excluded from the Fund by an Act of Parliament

and payable into another public fund established for a specific

purpose; or

(b) may, under an Act of Parliament, be retained by the State

organ that received it for the purpose of defraying the

expenses of the State organ.

(2) Money may be withdrawn from the Consolidated Fund only—

(a) in accordance with an appropriation by an Act of Parliament;

(b) in accordance with Article 222 or 223; or

(c) as a charge against the Fund as authorised by this

Constitution or an Act of Parliament.

(3) Money shall not be withdrawn from any national public fund

other than the Consolidated Fund, unless the withdrawal of the money

has been authorised by an Act of Parliament.

(4) Money shall not be withdrawn from the Consolidated Fund

unless the Controller of Budget has approved the withdrawal.123

Constitution of Kenya, 2010

Revenue Funds for county governments.

207. (1) There shall be established a Revenue Fund for each

county government, into which shall be paid all money raised or

received by or on behalf of the county government, except money

reasonably excluded by an Act of Parliament.

(2) Money may be withdrawn from the Revenue Fund of a county

government only—

(a) as a charge against the Revenue Fund that is provided for by

an Act of Parliament or by legislation of the county; or

(b) as authorised by an appropriation by legislation of the county.

(3) Money shall not be withdrawn from a Revenue Fund unless

the Controller of Budget has approved the withdrawal.

(4) An Act of Parliament may—

(a) make further provision for the withdrawal of funds from a

county Revenue Fund; and

(b) provide for the establishment of other funds by counties and

the management of those funds.

Contingencies Fund.

208. (1) There is established a Contingencies Fund, the

operation of which shall be in accordance with an Act of Parliament.

(2) An Act of Parliament shall provide for advances from the

Contingencies Fund if the Cabinet Secretary responsible for finance is

satisfied that there is an urgent and unforeseen need for expenditure

for which there is no other authority.

PART 3—REVENUE-RAISING POWERS AND THE PUBLIC DEBT

Power to impose taxes and charges.

209. (1) Only the national government may impose—

(a) income tax;

(b) value-added tax;

(c) customs duties and other duties on import and export goods;

and

(d) excise tax.124

Constitution of Kenya, 2010

(2) An Act of Parliament may authorise the national government

to impose any other tax or duty, except a tax specified in clause (3) ( a)

or (b).

(3) A county may impose—

(a) property rates;

(b) entertainment taxes; and

(c) any other tax that it is authorised to impose by an Act of

Parliament.

(4) The national and county governments may impose charges

for the services they provide.

(5) The taxation and other revenue-raising powers of a county

shall not be exercised in a way that prejudices national economic

policies, economic activities across county boundaries or the national

mobility of goods, services, capital or labour.

Imposition of tax.

210. (1) No tax or licensing fee may be imposed, waived or

varied except as provided by legislation.

(2) If legislation permits the waiver of any tax or licensing fee—

(a) a public record of each waiver shall be maintained together

with the reason for the waiver; and

(b) each waiver, and the reason for it, shall be reported to the

Auditor-General.

(3) No law may exclude or authorise the exclusion of a State

officer from payment of tax by reason of—

(a) the office held by that State officer; or

(b) the nature of the work of the State officer.

Borrowing by national government.

211. (1) Parliament may, by legislation—

(a) prescribe the terms on which the national government may

borrow; and

(b) impose reporting requirements.125

Constitution of Kenya, 2010

(2) Within seven days after either House of Parliament so

requests by resolution, the Cabinet Secretary responsible for finance

shall present to the relevant committee, information concerning any

particular loan or guarantee, including all information necessary to

show—

(a) the extent of the total indebtedness by way of principal and

accumulated interest;

(b) the use made or to be made of the proceeds of the loan;

(c) the provision made for servicing or repayment of the loan; and

(d) the progress made in the repayment of the loan.

Borrowing by counties.

212. A county government may borrow only—

(a) if the national government guarantees the loan; and

(b) with the approval of the county government’s assembly.

Loan guarantees by national government.

213. (1) An Act of Parliament shall prescribe terms and

conditions under which the national government may guarantee loans.

(2) Within two months after the end of each financial year, the

national government shall publish a report on the guarantees that it

gave during that year.

Public debt.

214. (1) The public debt is a charge on the Consolidated Fund,

but an Act of Parliament may provide for charging all or part of the

public debt to other public funds.

(2) For the purposes of this Article, “the public debt” means all

financial obligations attendant to loans raised or guaranteed and

securities issued or guaranteed by the national government.

PART 4—REVENUE ALLOCATION

Commission on Revenue Allocation.

215. (1) There is established the Commission on Revenue

Allocation.

(2) The Commission shall consist of the following persons

appointed by the President—126

Constitution of Kenya, 2010

(a) a chairperson, who shall be nominated by the President and

approved by the National Assembly;

(b) two persons nominated by the political parties represented in

the National Assembly according to their proportion of

members in the Assembly;

(c) five persons nominated by the political parties represented in

the Senate according to their proportion of members in the

Senate; and

(d) the Principal Secretary in the Ministry responsible for finance.

(3) The persons nominated under clause (2) shall not be

members of Parliament.

(4) To be qualified to be a member of the Commission under

clause (2) (a), (b) or (c), a person shall have extensive professional

experience in financial and economic matters.

Functions of the Commission on Revenue Allocation.

216. (1) The principal function of the Commission on Revenue

Allocation is to make recommendations concerning the basis for the

equitable sharing of revenue raised by the national government—

(a) between the national and county governments; and

(b) among the county governments.

(2) The Commission shall also make recommendations on other

matters concerning the financing of, and financial management by,

county governments, as required by this Constitution and national

legislation.

(3) In formulating recommendations, the Commission shall seek

—

(a) to promote and give effect to the criteria set out in Article 203

(1);

(b) when appropriate, to define and enhance the revenue sources

of the national and county governments; and

(c) to encourage fiscal responsibility.

(4) The Commission shall determine, publish and regularly review

a policy in which it sets out the criteria by which to identify the

marginalised areas for purposes of Article 204 (2).127

Constitution of Kenya, 2010

(5) The Commission shall submit its recommendations to the

Senate, the National Assembly, the national executive, county

assemblies and county executives.

Division of revenue.

217. (1) Once every five years, the Senate shall, by resolution,

determine the basis for allocating among the counties the share of

national revenue that is annually allocated to the county level of

government.

(2) In determining the basis of revenue sharing under clause (1),

the Senate shall—

(a) take the criteria in Article 203 (1) into account;

(b) request and consider recommendations from the Commission

on Revenue Allocation;

(c) consult the county governors, the Cabinet Secretary

responsible for finance and any organisation of county

governments; and

(d) invite the public, including professional bodies, to make

submissions to it on the matter.

(3) Within ten days after the Senate adopts a resolution under

clause (1), the Speaker of the Senate shall refer the resolution to the

Speaker of the National Assembly.

(4) Within sixty days after the Senate’s resolution is referred

under clause (3), the National Assembly may consider the resolution,

and vote to approve it, with or without amendments, or to reject it.

(5) If the National Assembly—

(a) does not vote on the resolution within sixty days, the

resolution shall be regarded as having been approved by the

National Assembly without amendment; or

(b) votes on the resolution, the resolution shall have been—

(i) amended only if at least two-thirds of the members of the

Assembly vote in support of an amendment;

(ii)rejected only if at least two-thirds of the members of the

Assembly vote against it, irrespective whether it has

first been amended by the Assembly; or

(iii) approved, in any other case. 128

Constitution of Kenya, 2010

(6) If the National Assembly approves an amended version of the

resolution, or rejects the resolution, the Senate, at its option, may

either—

(a) adopt a new resolution under clause (1), in which case the

provisions of this clause and clause (4) and (5) apply afresh;

or

(b) request that the matter be referred to a joint committee of the

two Houses of Parliament for mediation under Article 113,

applied with the necessary modifications.

(7) A resolution under this Article that is approved under clause

(5) shall be binding until a subsequent resolution has been approved.

(8) Despite clause (1), the Senate may, by resolution supported

by at least two-thirds of its members, amend a resolution at any time

after it has been approved.

(9) Clauses (2) to (8), with the necessary modifications, apply to

a resolution under clause (8).

Annual Division and Allocation of Revenue Bills.

218. (1) At least two months before the end of each financial

year, there shall be introduced in Parliament—

(a) a Division of Revenue Bill, which shall divide revenue raised

by the national government among the national and county

levels of government in accordance with this Constitution; and

(b) a County Allocation of Revenue Bill, which shall divide among

the counties the revenue allocated to the county level of

government on the basis determined in accordance with the

resolution in force under Article 217.

(2) Each Bill required by clause (1) shall be accompanied by a

memorandum setting out—

(a) an explanation of revenue allocation as proposed by the Bill;

(b) an evaluation of the Bill in relation to the criteria set out in

(c) a summary of any significant deviation from the Commission

on Revenue Allocation’s recommendations, with an

explanation for each such deviation.129

Constitution of Kenya, 2010

Transfer of equitable share.

219. A county’s share of revenue raised by the national

government shall be transferred to the county without undue delay and

without deduction, except when the transfer has been stopped under

Article 225.

PART 5—BUDGETS AND SPENDING

Form, content and timing of budgets.

220. (1) Budgets of the national and county governments shall

contain—

(a) estimates of revenue and expenditure, differentiating between

recurrent and development expenditure;

(b) proposals for financing any anticipated deficit for the period to

which they apply; and

(c) proposals regarding borrowing and other forms of public

liability that will increase public debt during the following year.

(2) National legislation shall prescribe—

(a) the structure of the development plans and budgets of

counties;

(b) when the plans and budgets of the counties shall be tabled in

the county assemblies; and

(c) the form and manner of consultation between the national

government and county governments in the process of

preparing plans and budgets.

Budget estimates and annual Appropriation Bill.

221. (1) At least two months before the end of each financial

year, the Cabinet Secretary responsible for finance shall submit to the

National Assembly estimates of the revenue and expenditure of the

national government for the next financial year to be tabled in the

National Assembly.

(2) The estimates referred to in clause (1) shall—

(a) include estimates for expenditure from the Equalisation Fund;

and

(b) be in the form, and according to the procedure, prescribed by

an Act of Parliament.

(3) The National Assembly shall consider the estimates submitted 130

Constitution of Kenya, 2010

under clause (1) together with the estimates submitted by the

Parliamentary Service Commission and the Chief Registrar of the

Judiciary under Articles 127 and 173 respectively.

(4) Before the National Assembly considers the estimates of

revenue and expenditure, a committee of the Assembly shall discuss

and review the estimates and make recommendations to the

Assembly.

(5) In discussing and reviewing the estimates, the committee

shall seek representations from the public and the recommendations

shall be taken into account when the committee makes its

recommendations to the National Assembly.

(6) When the estimates of national government expenditure, and

the estimates of expenditure for the Judiciary and Parliament have

been approved by the National Assembly, they shall be included in an

Appropriation Bill, which shall be introduced into the National

Assembly to authorise the withdrawal from the Consolidated Fund of

the money needed for the expenditure, and for the appropriation of that

money for the purposes mentioned in the Bill.

(7) The Appropriation Bill mentioned in clause (6) shall not

include expenditures that are charged on the Consolidated Fund by

this Constitution or an Act of Parliament.

Expenditure before annual budget is passed

222. (1) If the Appropriation Act for a financial year has not been

assented to, or is not likely to be assented to, by the beginning of that

financial year, the National Assembly may authorise the withdrawal of

money from the Consolidated Fund.

(2) Money withdrawn under clause (1) shall—

(a) be for the purpose of meeting expenditure necessary to carry

on the services of the national government during that year

until such time as the Appropriation Act is assented to;

(b) not exceed in total one-half of the amount included in the

estimates of expenditure for that year that have been tabled

in the National Assembly; and

(c) be included, under separate votes for the several services in

respect of which they were withdrawn, in the Appropriation

Act.

Supplementary appropriation.

223. (1) Subject to clauses (2) to (4), the national government 131

Constitution of Kenya, 2010

may spend money that has not been appropriated if—

(a) the amount appropriated for any purpose under the

Appropriation Act is insufficient or a need has arisen for

expenditure for a purpose for which no amount has been

appropriated by that Act; or

(b) money has been withdrawn from the Contingencies Fund.

(2) The approval of Parliament for any spending under this Article

shall be sought within two months after the first withdrawal of the

money, subject to clause (3).

(3) If Parliament is not sitting during the time contemplated in

clause (2), or is sitting but adjourns before the approval has been

sought, the approval shall be sought within two weeks after it next sits.

(4) When the National Assembly has approved spending under

clause (2), an appropriation Bill shall be introduced for the

appropriation of the money spent.

(5) In any particular financial year, the national government may

not spend under this Article more than ten per cent of the sum

appropriated by Parliament for that financial year unless, in special

circumstances, Parliament has approved a higher percentage.

County appropriation Bills.

224. On the basis of the Division of Revenue Bill passed by

Parliament under Article 218, each county government shall prepare

and adopt its own annual budget and appropriation Bill in the form, and

according to the procedure, prescribed in an Act of Parliament.

PART 6—CONTROL OF PUBLIC MONEY

Financial control.

225. (1) An Act of Parliament shall provide for the establishment,

functions and responsibilities of the national Treasury.

(2) Parliament shall enact legislation to ensure both expenditure

control and transparency in all governments and establish

mechanisms to ensure their implementation.

(3) Legislation under clause (2) may authorise the Cabinet

Secretary responsible for finance to stop the transfer of funds to a

State organ or any other public entity—132

Constitution of Kenya, 2010

(a) only for a serious material breach or persistent material

breaches of the measures established under that legislation;

and

(b) subject to the requirements of clauses (4) to (7).

(4) A decision to stop the transfer of funds under clause (3) may

not stop the transfer of more than fifty per cent of funds due to a

county government.

(5) A decision to stop the transfer of funds as contemplated in

clause (3)—

(a) shall not stop the transfer of funds for more than sixty days;

and

(b) may be enforced immediately, but will lapse retrospectively

unless, within thirty days after the date of the decision,

Parliament approves it by resolution passed by both Houses.

(6) Parliament may renew a decision to stop the transfer of funds

but for no more than sixty days at a time.

(7) Parliament may not approve or renew a decision to stop the

transfer of funds unless—

(a) the Controller of Budget has presented a report on the matter

to Parliament; and

(b) the public entity has been given an opportunity to answer the

allegations against it, and to state its case, before the

relevant parliamentary committee.

Accounts and audit of public entities.

226. (1) An Act of Parliament shall provide for—

(a) the keeping of financial records and the auditing of accounts

of all governments and other public entities, and prescribe

other measures for securing efficient and transparent fiscal

management; and

(b) the designation of an accounting officer in every public entity

at the national and county level of government.

(2) The accounting officer of a national public entity is

accountable to the National Assembly for its financial management,

and the accounting officer of a county public entity is accountable to

the county assembly for its financial management.133

Constitution of Kenya, 2010

(3) Subject to clause (4), the accounts of all governments and

State organs shall be audited by the Auditor-General.

(4) The accounts of the office of the Auditor-General shall be

audited and reported on by a professionally qualified accountant

appointed by the National Assembly.

(5) If the holder of a public office, including a political office,

directs or approves the use of public funds contrary to law or

instructions, the person is liable for any loss arising from that use and

shall make good the loss, whether the person remains the holder of

the office or not.

Procurement of public goods and services.

227. (1) When a State organ or any other public entity contracts

for goods or services, it shall do so in accordance with a system that is

fair, equitable, transparent, competitive and cost-effective.

(2) An Act of Parliament shall prescribe a framework within which

policies relating to procurement and asset disposal shall be

implemented and may provide for all or any of the following—

(a) categories of preference in the allocation of contracts;

(b) the protection or advancement of persons, categories of

persons or groups previously disadvantaged by unfair

competition or discrimination;

(c) sanctions against contractors that have not performed

according to professionally regulated procedures, contractual

agreements or legislation; and

(d) sanctions against persons who have defaulted on their tax

obligations, or have been guilty of corrupt practices or serious

violations of fair employment laws and practices.

PART 6—FINANCIAL OFFICERS AND INSTITUTIONS

Controller of Budget.

228. (1) There shall be a Controller of Budget who shall be

nominated by the President and, with the approval of the National

Assembly, appointed by the President.

(2) To be qualified to be the Controller, a person shall have

extensive knowledge of public finance or at least ten years experience

in auditing public finance management.134

Constitution of Kenya, 2010

(3) The Controller shall, subject to Article 251, hold office for a

term of eight years and shall not be eligible for re-appointment.

(4) The Controller of Budget shall oversee the implementation of

the budgets of the national and county governments by authorising

withdrawals from public funds under Articles 204, 206 and 207.

(5) The Controller shall not approve any withdrawal from a public

fund unless satisfied that the withdrawal is authorised by law.

(6) Every four months, the Controller shall submit to each House

of Parliament a report on the implementation of the budgets of the

national and county governments.

Auditor-General.

229. (1) There shall be an Auditor-General who shall be

nominated by the President and, with the approval of the National

Assembly, appointed by the President.

(2) To be qualified to be the Auditor-General, a person shall have

extensive knowledge of public finance or at least ten years experience

in auditing or public finance management.

(3) The Auditor-General holds office, subject to Article 251, for a

term of eight years and shall not be eligible for re-appointment.

(4) Within six months after the end of each financial year, the

Auditor-General shall audit and report, in respect of that financial year,

on—

(a) the accounts of the national and county governments;

(b) the accounts of all funds and authorities of the national and

county governments;

(c) the accounts of all courts;

(d) the accounts of every commission and independent office

established by this Constitution;

(e) the accounts of the National Assembly, the Senate and the

county assemblies;

(f) the accounts of political parties funded from public funds;

(g) the public debt; and

(h) the accounts of any other entity that legislation requires the

Auditor-General to audit.135

Constitution of Kenya, 2010

(5) The Auditor-General may audit and report on the accounts of

any entity that is funded from public funds.

(6) An audit report shall confirm whether or not public money has

been applied lawfully and in an effective way.

(7) Audit reports shall be submitted to Parliament or the relevant

county assembly.

(8) Within three months after receiving an audit report, Parliament

or the county assembly shall debate and consider the report and take

appropriate action.

Salaries and Remuneration Commission.

230. (1) There is established the Salaries and Remuneration

Commission.

(2) The Salaries and Remuneration Commission consists of the

following persons appointed by the President—

(a) a chairperson;

(b) one person each nominated by the following bodies from

among persons who are not members or employees of those

bodies—

(i) the Parliamentary Service Commission;

(ii) the Public Service Commission;

(iii) the Judicial Service Commission;

(iv) the Teachers Service Commission;

(v) the National Police Service Commission;

(vi) the Defence Council; and

(vii) the Senate, on behalf of the county governments;

(c) one person each nominated by—

(i) an umbrella body representing trade unions;

(ii) an umbrella body representing employers; and

(iii) a joint forum of professional bodies as provided by

legislation;

(d) one person each nominated by—

(i) the Cabinet Secretary responsible for finance; and136

Constitution of Kenya, 2010

(ii) the Attorney-General; and

(e) one person who has experience in the management of human

resources in the public service, nominated by the Cabinet

Secretary responsible for public service.

(3) The Commissioners under clause (1) ( d) and (e) shall have

no vote.

(4) The powers and functions of the Salaries and Remuneration

Commission shall be to—

(a) set and regularly review the remuneration and benefits of all

State officers; and

(b) advise the national and county governments on the

remuneration and benefits of all other public officers.

(5) In performing its functions, the Commission shall take the

following principles into account—

(a) the need to ensure that the total public compensation bill is

fiscally sustainable;

(b) the need to ensure that the public services are able to attract

and retain the skills required to execute their functions;

(c) the need to recognise productivity and performance; and

(d) transparency and fairness.

Central Bank of Kenya.

231. (1) There is established the Central Bank of Kenya.

(2) The Central Bank of Kenya shall be responsible for

formulating monetary policy, promoting price stability, issuing currency

and performing other functions conferred on it by an Act of Parliament.

(3) The Central Bank of Kenya shall not be under the direction or

control of any person or authority in the exercise of its powers or in the

performance of its functions.

(4) Notes and coins issued by the Central Bank of Kenya may

bear images that depict or symbolise Kenya or an aspect of Kenya but

shall not bear the portrait of any individual.

(5) An Act of Parliament shall provide for the composition,

powers, functions and operations of the Central Bank of Kenya.137

Constitution of Kenya, 2010

CHAPTER THIRTEEN—THE PUBLIC SERVICE

PART 1—VALUES AND PRINCIPLES OF PUBLIC SERVICE

Values and principles of public service.

232. (1) The values and principles of public service include—

(a) high standards of professional ethics;

(b) efficient, effective and economic use of resources;

(c) responsive, prompt, effective, impartial and equitable

provision of services;

(d) involvement of the people in the process of policy making;

(e) accountability for administrative acts;

(f)transparency and provision to the public of timely, accurate

information;

(g) subject to paragraphs ( h) and (i), fair competition and merit as

the basis of appointments and promotions;

(h) representation of Kenya’s diverse communities; and

(i)affording adequate and equal opportunities for appointment,

training and advancement, at all levels of the public service,

of—

(i)men and women;

(ii)the members of all ethnic groups; and

(iii) persons with disabilities.

(2) The values and principles of public service apply to public

service in—

(a) all State organs in both levels of government; and

(b) all State corporations.

(3) Parliament shall enact legislation to give full effect to this

Article.

PART 2—THE PUBLIC SERVICE COMMISSION

The Public Service Commission.

233. (1) There is established the Public Service Commission.138

Constitution of Kenya, 2010

(2) The Public Service Commission consists of a chairperson, a

vice chairperson and seven other members appointed by the President

with the approval of the National Assembly.

(3) Subject to clause (4), a person is not eligible for appointment

as a member of the Commission if the person––

(a) has, at any time within the preceding five years, held office, or

stood for election as—

(i) a member of Parliament or of a county assembly; or

(ii) a member of the governing body of a political party; or

(b) holds any State office;

(c) is, or has at any time been, a candidate for election as a

member of Parliament or of a county assembly; or

(d) is, or has at any time been, the holder of an office in any

political organisation that sponsors or otherwise supports, or

has at any time sponsored or otherwise supported, a

candidate for election as a member of Parliament or of a

county assembly.

(4) Clause (3) (c) and (d) cease to apply to a person after two

general elections for Parliament have been held since the person

ceased to be such a candidate or office holder.

(5) There shall be a secretary to the Commission.

(6) The secretary—

(a) is the chief executive of the Commission; and

(b) shall be appointed by the Commission for a term of five years,

and is eligible for re-appointment once.

Functions and powers of the Public Service Commission.

234. (1) The functions and powers of the Commission are as set

out in this Article.

(2) The Commission shall—

(a) subject to this Constitution and legislation—

(i) establish and abolish offices in the public service; and

(ii) appoint persons to hold or act in those offices, and to

confirm appointments;139

Constitution of Kenya, 2010

(b) exercise disciplinary control over and remove persons holding

or acting in those offices;

(c) promote the values and principles referred to in Articles 10

and 232 throughout the public service;

(d) investigate, monitor and evaluate the organisation,

administration and personnel practices of the public service;

(e) ensure that the public service is efficient and effective;

(f) develop human resources in the public service;

(g) review and make recommendations to the national

government in respect of conditions of service, code of

conduct and qualifications of officers in the public service;

(h) evaluate and report to the President and Parliament on the

extent to which the values and principles referred to in

Articles 10 and 232 are complied with in the public service ;

(i) hear and determine appeals in respect of county governments’

public service; and

(j) perform any other functions and exercise any other powers

conferred by national legislation.

(3) Clauses (1) and (2) shall not apply to any of the following

offices in the public service—

(a) State offices;

(b) an office of high commissioner, ambassador or other

diplomatic or consular representative of the Republic;

(c) an office or position subject to—

(i)the Parliamentary Service Commission;

(ii) the Judicial Service Commission;

(iii) the Teachers Service Commission;

(iv) the National Police Service Commission; or

(b) an office in the service of a county government, except as

contemplated in clause (2) ( i). 140

Constitution of Kenya, 2010

(4) The Commission shall not appoint a person under clause (2)

to hold or act in any office on the personal staff of the President or a

retired President, except with the consent of the President or retired

President.

(5) The Commission may delegate, in writing, with or without

conditions, any of its functions and powers under this Article to any

one or more of its members, or to any officer, body or authority in the

public service.

Staffing of county governments.

235. (1) A county government is responsible, within a framework

of uniform norms and standards prescribed by an Act of Parliament, for

—

(a) establishing and abolishing offices in its public service;

(b) appointing persons to hold or act in those offices, and

confirming appointments; and

(c) exercising disciplinary control over and removing persons

holding or acting in those offices.

(2) Clause (1) shall not apply to any office or position subject to

the Teachers Service Commission.

Protection of public officers.

236. A public officer shall not be—

(a) victimised or discriminated against for having performed the

functions of office in accordance with this Constitution or any

other law; or

(b) dismissed, removed from office, demoted in rank or otherwise

subjected to disciplinary action without due process of law.

PART 3—TEACHERS SERVICE COMMISSION

Teachers Service Commission.

237. (1) There is established the Teachers Service Commission.

(2) The functions of the Commission are—

(a) to register trained teachers;

(b) to recruit and employ registered teachers;141

Constitution of Kenya, 2010

(c) to assign teachers employed by the Commission for service in

any public school or institution;

(d) to promote and transfer teachers;

(e) to exercise disciplinary control over teachers; and

(f) to terminate the employment of teachers.

(3) The Commission shall—

(a) review the standards of education and training of persons

entering the teaching service;

(b) review the demand for and the supply of teachers; and

(c) advise the national government on matters relating to the

teaching profession.

CHAPTER FOURTEEN—NATIONAL SECURITY

PART 1—NATIONAL SECURITY ORGANS

Principles of national security.

238. (1) National security is the protection against internal and

external threats to Kenya’s territorial integrity and sovereignty, its

people, their rights, freedoms, property, peace, stability and prosperity,

and other national interests.

(2) The national security of Kenya shall be promoted and

guaranteed in accordance with the following principles—

(a) national security is subject to the authority of this Constitution

and Parliament;

(b) national security shall be pursued in compliance with the law

and with the utmost respect for the rule of law, democracy,

human rights and fundamental freedoms;

(c) in performing their functions and exercising their powers,

national security organs shall respect the diverse culture of

the communities within Kenya; and

(d) recruitment by the national security organs shall reflect the

diversity of the Kenyan people in equitable proportions.

National security organs.

239. (1) The national security organs are—142

Constitution of Kenya, 2010

(a) the Kenya Defence Forces;

(b) the National Intelligence Service; and

(c) the National Police Service.

(2) The primary object of the national security organs and

security system is to promote and guarantee national security in

accordance with the principles mentioned in Article 238 (2).

(3) In performing their functions and exercising their powers, the

national security organs and every member of the national security

organs shall not—

(a) act in a partisan manner;

(b) further any interest of a political party or cause; or

(c) prejudice a political interest or political cause that is legitimate

under this Constitution.

(4) A person shall not establish a military, paramilitary, or similar

organisation that purports to promote and guarantee national security,

except as provided for by this Constitution or an Act of Parliament.

(5) The national security organs are subordinate to civilian

authority.

(6) Parliament shall enact legislation to provide for the functions,

organisation and administration of the national security organs.

Establishment of the National Security Council

240. (1) There is established a National Security Council.

(2) The Council consists of—

(a) the President;

(b) the Deputy President;

(c) the Cabinet Secretary responsible for defence;

(d) the Cabinet Secretary responsible for foreign affairs;

(e) the Cabinet Secretary responsible for internal security;

(f) the Attorney-General;

(g) the Chief of Kenya Defence Forces;143

Constitution of Kenya, 2010

(h) the Director-General of the National Intelligence Service; and

(i)the Inspector-General of the National Police Service.

(3) The Council shall exercise supervisory control over national

security organs and perform any other functions prescribed by national

legislation.

(4) The President shall preside at meetings of the Council.

(5) The Council shall appoint its secretary.

(6) The Council shall—

(a) integrate the domestic, foreign and military policies relating to

national security in order to enable the national security

organs to co-operate and function effectively; and

(b) assess and appraise the objectives, commitments and risks to

the Republic in respect of actual and potential national

security capabilities.

(7) The Council shall report annually to Parliament on the state of

the security of Kenya.

(8) The Council may, with the approval of Parliament—

(a) deploy national forces outside Kenya for—

(i)regional or international peace support operations; or

(ii) other support operations; and

(b) approve the deployment of foreign forces in Kenya.

PART 2—THE KENYA DEFENCE FORCES

Establishment of Defence Forces and Defence Council.

241. (1) There are established the Kenya Defence Forces.

(2) The Defence Forces consist of—

(a) the Kenya Army;

(b) the Kenya Air Force; and

(c) the Kenya Navy.

(3) The Defence Forces—144

Constitution of Kenya, 2010

(a) are responsible for the defence and protection of the

sovereignty and territorial integrity of the Republic;

(b) shall assist and cooperate with other authorities in situations

of emergency or disaster, and report to the National

Assembly whenever deployed in such circumstances; and

(c) may be deployed to restore peace in any part of Kenya

affected by unrest or instability only with the approval of the

National Assembly.

(4) The composition of the command of the Defence Forces shall

reflect the regional and ethnic diversity of the people of Kenya.

(5) There is established a Defence Council.

(6) The Council consist of—

(a) the Cabinet Secretary responsible for defence, who is the

chairperson;

(b) the Chief of the Kenya Defence Forces;

(c) the three commanders of the defence forces; and

(d) the Principal Secretary in the Ministry responsible for defence.

(7) The Council—

(a) is responsible for the overall policy, control, and supervision of

the Kenya Defence Forces; and

(b) performs any other functions prescribed by national

legislation.

PART 3—THE NATIONAL INTELLIGENCE SERVICE

Establishment of National Intelligence Service.

242. (1) There is established the National Intelligence Service.

(2) The National Intelligence Service—

(a) is responsible for security intelligence and counter intelligence

to enhance national security in accordance with this

Constitution; and

(b) performs any other functions prescribed by national

legislation.145

Constitution of Kenya, 2010

PART 4—THE NATIONAL POLICE SERVICE

Establishment of the National Police Service.

243. (1) There is established the National Police Service.

(2) The National Police Service consists of—

(a) the Kenya Police Service; and

(b) the Administration Police Service.

(3) The National Police Service is a national service and shall

function throughout Kenya.

(4) Parliament shall enact legislation to give full effect to this

Article.

Objects and functions of the National Police Service.

244. The National Police Service shall—

(a) strive for the highest standards of professionalism and

discipline among its members;

(b) prevent corruption and promote and practice transparency

and accountability;

(c) comply with constitutional standards of human rights and

fundamental freedoms;

(d) train staff to the highest possible standards of competence

and integrity and to respect human rights and fundamental

freedoms and dignity; and

(e) foster and promote relationships with the broader society.

Command of the National Police Service.

245. (1) There is established the office of the Inspector-General

of the National Police Service.

(2) The Inspector-General—

(a) is appointed by the President with the approval of Parliament;

and

(b) shall exercise independent command over the National Police

Service, and perform any other functions prescribed by

national legislation.146

Constitution of Kenya, 2010

(3) The Kenya Police Service and the Administration Police

Service shall each be headed by a Deputy Inspector-General

appointed by the President in accordance with the recommendation of

the National Police Service Commission.

(4) The Cabinet secretary responsible for police services may

lawfully give a direction to the Inspector-General with respect to any

matter of policy for the National Police Service, but no person may give

a direction to the Inspector-General with respect to—

(a) the investigation of any particular offence or offences;

(b) the enforcement of the law against any particular person or

persons; or

(c) the employment, assignment, promotion, suspension or

dismissal of any member of the National Police Service.

(5) Any direction given to the Inspector-General by the Cabinet

secretary responsible for police services under clause (4), or any

direction given to the Inspector-General by the Director of Public

Prosecutions under Article 157(4), shall be in writing.

(6) The Inspector-General shall be appointed for a single

four-year term, and is not eligible for re-appointment.

(7) The Inspector-General may be removed from office by the

President only on the grounds of—

(a) serious violation of this Constitution or any other law,

including a contravention of Chapter Six;

(b) gross misconduct whether in the performance of the office

holder’s functions or otherwise;

(c) physical or mental incapacity to perform the functions of

office;

(d) incompetence;

(e) bankruptcy; or

(f) any other just cause.

(8) Parliament shall enact legislation to give full effect to this

Article.

National Police Service Commission.

246. (1) There is established the National Police Service 147

Constitution of Kenya, 2010

Commission.

(2) The Commission consists of—

(a) the following persons, each appointed by the President—

(i)a person who is qualified to be appointed as a High

Court Judge;

(ii)two retired senior police officers; and

(iii) three persons of integrity who have served the public with

distinction;

(b) the Inspector-General of the National Police Service; and

(c) both Deputy Inspectors-General of the National Police

Service.

(3) The Commission shall—

(a) recruit and appoint persons to hold or act in offices in the

service, confirm appointments, and determine promotions

and transfers within the National Police Service;

(b) observing due process, exercise disciplinary control over and

remove persons holding or acting in offices within the

Service; and

(c) perform any other functions prescribed by national legislation.

(4) The composition of the National Police Service shall reflect

the regional and ethnic diversity of the people of Kenya.

Other police services.

247. Parliament may enact legislation establishing other police

services under the supervision of the National Police Service and the

command of the Inspector-General of the Service.

CHAPTER FIFTEEN—COMMISSIONS AND INDEPENDENT

OFFICES

Application of Chapter.

248. (1) This Chapter applies to the commissions specified in

clause (2) and the independent offices specified in clause (3), except

to the extent that this Constitution provides otherwise.

(2) The commissions are—148

Constitution of Kenya, 2010

(a) the Kenya National Human Rights and Equality Commission;

(b) the National Land Commission;

(c) the Independent Electoral and Boundaries Commission;

(d) the Parliamentary Service Commission;

(e) the Judicial Service Commission;

(f) the Commission on Revenue Allocation;

(g) the Public Service Commission;

(h) the Salaries and Remuneration Commission;

(i) the Teachers Service Commission; and

(j) the National Police Service Commission.

(3) The independent offices are—

(a) the Auditor-General; and

(b) the Controller of Budget.

Objects, authority and funding of commissions and independent

offices.

249. (1) The objects of the commissions and the independent

offices are to—

(a) protect the sovereignty of the people;

(b) secure the observance by all State organs of democratic

values and principles; and

(c) promote constitutionalism.

(2) The commissions and the holders of independent offices—

(a) are subject only to this Constitution and the law; and

(b) are independent and not subject to direction or control by any

person or authority.

(3) Parliament shall allocate adequate funds to enable each

commission and independent office to perform its functions and the

budget of each commission and independent office shall be a separate

vote.149

Constitution of Kenya, 2010

Composition, appointment and terms of office.

250. (1) Each commission shall consist of at least three, but not

more than nine, members.

(2) The chairperson and each member of a commission, and the

holder of an independent office, shall be—

(a) identified and recommended for appointment in a manner

prescribed by national legislation;

(b) approved by the National Assembly; and

(c) appointed by the President.

(3) To be appointed, a person shall have the specific

qualifications required by this Constitution or national legislation.

(4) Appointments to commissions and independent offices shall

take into account the national values referred to in Article 10, and the

principle that the composition of the commissions and offices, taken as

a whole, shall reflect the regional and ethnic diversity of the people of

Kenya.

(5) A member of a commission may serve on a part-time basis.

(6) A member of a commission, or the holder of an independent

office—

(a) unless ex officio, shall be appointed for a single term of six

years and is not eligible for re-appointment; and

(b) unless ex officio or part-time, shall not hold any other office or

employment for profit, whether public or private.

(7) The remuneration and benefits payable to or in respect of a

commissioner or the holder of an independent office shall be a charge

on the Consolidated Fund.

(8) The remuneration and benefits payable to, or in respect of, a

commissioner or the holder of an independent office shall not be varied

to the disadvantage of that commissioner or holder of an independent

office.

(9) A member of a commission, or the holder of an independent

office, is not liable for anything done in good faith in the performance of

a function of office.150

Constitution of Kenya, 2010

(10) The members of a commission shall elect a vice-chairperson

from among themselves—

(a) at the first sitting of the commission; and

(b) whenever it is necessary to fill a vacancy in the office of the

vice-chairperson.

(11) The chairperson and vice-chairperson of a commission shall

not be of the same gender.

(12) There shall be a Secretary to each commission who shall be

—

(a) appointed by the commission; and

(b) the chief executive officer of the commission.

Removal from office.

251. (1) A member of a commission (other than an ex officio

member), or the holder of an independent office, may be removed from

office only for—

(a) serious violation of this Constitution or any other law,

including a contravention of Chapter Six;

(b) gross misconduct, whether in the performance of the

member’s or office holder’s functions or otherwise;

(c) physical or mental incapacity to perform the functions of

office;

(d) incompetence; or

(e) bankruptcy.

(2) A person desiring the removal of a member of a commission

or of a holder of an independent office on any ground specified in

clause (1) may present a petition to the National Assembly setting out

the alleged facts constituting that ground.

(3) The National Assembly shall consider the petition and, if it is

satisfied that it discloses a ground under clause (1), shall send the

petition to the President.

(4) On receiving a petition under clause (3), the President—

(a) may suspend the member or office holder pending the

outcome of the complaint; and151

Constitution of Kenya, 2010

(b) shall appoint a tribunal in accordance with clause (5).

(5) The tribunal shall consist of—

(a) a person who holds or has held office as a judge of a superior

court, who shall be the chairperson;

(b) at least two persons who are qualified to be appointed as

High Court judges; and

(c) one other member who is qualified to assess the facts in

respect of the particular ground for removal.

(6) The tribunal shall investigate the matter expeditiously, report

on the facts and make a binding recommendation to the President,

who shall act in accordance with the recommendation within thirty

days.

(7) A person suspended under this Article is entitled to continue

to receive one-half of the remuneration and benefits of the office while

suspended.

General functions and powers.

252. (1) Each commission, and each holder of an independent

office—

(a) may conduct investigations on its own initiative or on a

complaint made by a member of the public;

(b) has the powers necessary for conciliation, mediation and

negotiation;

(c) shall recruit its own staff; and

(d) may perform any functions and exercise any powers

prescribed by legislation, in addition to the functions and

powers conferred by this Constitution.

(2) A complaint to a commission or the holder of an independent

office may be made by any person entitled to institute court

proceedings under Article 22 (1) and (2).

(3) The following commissions and independent offices have the

power to issue a summons to a witness to assist for the purposes of its

investigations—

(a) the Kenya National Human Rights and Equality Commission;

(b) the Judicial Service Commission;152

Constitution of Kenya, 2010

(c) the National Land Commission; and

(d) the Auditor-General.

Incorporation of commissions and independent offices.

253. Each commission and each independent office—

(a) is a body corporate with perpetual succession and a seal; and

(b) is capable of suing and being sued in its corporate name.

Reporting by commissions and independent offices.

254. (1) As soon as practicable after the end of each financial

year, each commission, and each holder of an independent office,

shall submit a report to the President and to Parliament.

(2) At any time, the President, the National Assembly or the

Senate may require a commission or holder of an independent office to

submit a report on a particular issue.

(3) Every report required from a commission or holder of an

independent office under this Article shall be published and publicised.

CHAPTER SIXTEEN—AMENDMENT OF THIS CONSTITUTION

Amendment of this Constitution.

255. (1) A proposed amendment to this Constitution shall be

enacted in accordance with Article 256 or 257, and approved in

accordance with clause (2) by a referendum, if the amendment relates

to any of the following matters—

(a) the supremacy of this Constitution;

(b) the territory of Kenya;

(c) the sovereignty of the people;

(d) the national values and principles of governance referred to in

(e) the Bill of Rights;

(f) the term of office of the President;

(g) the independence of the Judiciary and the commissions and

independent offices to which Chapter Fifteen applies;

(h) the functions of Parliament;153

Constitution of Kenya, 2010

(i) the objects, principles and structure of devolved government;

or

(j)the provisions of this Chapter.

(2) A proposed amendment shall be approved by a referendum

under clause (1) if—

(a) at least twenty per cent of the registered voters in each of at

least half of the counties vote in the referendum; and

(b) the amendment is supported by a simple majority of the

citizens voting in the referendum.

(3) An amendment to this Constitution that does not relate to a

matter specified in clause (1) shall be enacted either—

(a) by Parliament, in accordance with Article 256; or

(b) by the people and Parliament, in accordance with Article 257.

Amendment by parliamentary initiative.

256. (1) A Bill to amend this Constitution—

(a) may be introduced in either House of Parliament;

(b) may not address any other matter apart from consequential

amendments to legislation arising from the Bill;

(c) shall not be called for second reading in either House within

ninety days after the first reading of the Bill in that House; and

(d) shall have been passed by Parliament when each House of

Parliament has passed the Bill, in both its second and third

readings, by not less than two-thirds of all the members of

that House.

(2) Parliament shall publicise any Bill to amend this Constitution,

and facilitate public discussion about the Bill.

(3) After Parliament passes a Bill to amend this Constitution, the

Speakers of the two Houses of Parliament shall jointly submit to the

President—

(a) the Bill, for assent and publication; and

(b) a certificate that the Bill has been passed by Parliament in

accordance with this Article.154

Constitution of Kenya, 2010

(4) Subject to clause (5), the President shall assent to the Bill and

cause it to be published within thirty days after the Bill is enacted by

Parliament.

(5) If a Bill to amend this Constitution proposes an amendment

relating to a matter specified in Article 255 (1)—

(a) the President shall, before assenting to the Bill, request the

Independent Electoral and Boundaries Commission to

conduct, within ninety days, a national referendum for

approval of the Bill; and

(b) within thirty days after the chairperson of the Independent

Electoral and Boundaries Commission has certified to the

President that the Bill has been approved in accordance with

cause it to be published.

Amendment by popular initiative.

257. (1) An amendment to this Constitution may be proposed by

a popular initiative signed by at least one million registered voters.

(2) A popular initiative for an amendment to this Constitution may

be in the form of a general suggestion or a formulated draft Bill.

(3) If a popular initiative is in the form of a general suggestion, the

promoters of that popular initiative shall formulate it into a draft Bill.

(4) The promoters of a popular initiative shall deliver the draft Bill

and the supporting signatures to the Independent Electoral and

Boundaries Commission, which shall verify that the initiative is

supported by at least one million registered voters.

(5) If the Independent Electoral and Boundaries Commission is

satisfied that the initiative meets the requirements of this Article, the

Commission shall submit the draft Bill to each county assembly for

consideration within three months after the date it was submitted by

the Commission.

(6) If a county assembly approves the draft Bill within three

months after the date it was submitted by the Commission, the

speaker of the county assembly shall deliver a copy of the draft Bill

jointly to the Speakers of the two Houses of Parliament, with a

certificate that the county assembly has approved it.

(7) If a draft Bill has been approved by a majority of the county

assemblies, it shall be introduced in Parliament without delay.155

Constitution of Kenya, 2010

(8) A Bill under this Article is passed by Parliament if supported

by a majority of the members of each House.

(9) If Parliament passes the Bill, it shall be submitted to the

President for assent in accordance with Articles 256 (4) and (5).

(10) If either House of Parliament fails to pass the Bill, or the Bill

relates to a matter specified in 255 (1), the proposed amendment shall

be submitted to the people in a referendum.

(11) Article 255 (2) applies, with any necessary modifications, to

a referendum under clause (10).

CHAPTER SEVENTEEN—GENERAL PROVISIONS

Enforcement of this Constitution.

258. (1) Every person has the right to institute court proceedings,

claiming that this Constitution has been contravened, or is threatened

with contravention.

(2) In addition to a person acting in their own interest, court

proceedings under clause (1) may be instituted by—

(a) a person acting on behalf of another person who cannot act in

their own name;

(b) a person acting as a member of, or in the interest of, a group

or class of persons;

(c) a person acting in the public interest; or

(d) an association acting in the interest of one or more of its

members.

Construing this Constitution.

259. (1) This Constitution shall be interpreted in a manner that—

(a) promotes its purposes, values and principles;

(b) advances the rule of law, and the human rights and

fundamental freedoms in the Bill of Rights;

(c) permits the development of the law; and

(d) contributes to good governance.

(2) If there is a conflict between different language versions of

this Constitution, the English language version prevails.156

Constitution of Kenya, 2010

(3) Every provision of this Constitution shall be construed

according to the doctrine of interpretation that the law is always

speaking and, therefore, among other things—

(a) a function or power conferred by this Constitution on an office

may be performed or exercised as occasion requires, by the

person holding the office;

(b) any reference in this Constitution to a State or other public

office or officer, or a person holding such an office, includes a

reference to the person acting in or otherwise performing the

functions of the office at any particular time;

(c) a reference in this Constitution to an office, State organ or

locality named in this Constitution shall be read with any

formal alteration necessary to make it applicable in the

circumstances; and

(d) a reference in this Constitution to an office, body or

organisation is, if the office, body or organisation has ceased

to exist, a reference to its successor or to the equivalent

office, body or organisation.

(4) In this Constitution, unless the context otherwise requires—

(a) if a word or expression is defined in this Constitution, any

grammatical variation or cognate expression of the word or

expression has a corresponding meaning, read with the

changes required by the context; and

(b) the word “includes” means “includes, but is not limited to”.

(5) In calculating time between two events for any purpose under

this Constitution, if the time is expressed—

(a) as days, the day on which the first event occurs shall be

excluded, and the day by which the last event may occur

shall be included;

(b) as months, the time period ends at the beginning of the day in

the relevant month—

(i)that has the same number as the date on which the

period began, if that month has a corresponding date;

or

(ii) that is the last day of that month, in any other case; or157

Constitution of Kenya, 2010

(c) as years, the period of time ends at the beginning of the date

of the relevant year that corresponds to the date on which the

period began.

(6) If a period of time prescribed by this Constitution for any

purpose is six days or less, Sundays and public holidays shall not

count when calculating the time.

(7) If, in any particular circumstances, the period of time

prescribed by this Constitution ends on a Sunday or a public holiday,

the period extends to the first subsequent day that is not a Sunday or

public holiday.

(8) If a particular time is not prescribed by this Constitution for

performing a required act, the act shall be done without unreasonable

delay, and as often as occasion arises.

(9) If any person or State organ has authority under this

Constitution to extend a period of time prescribed by this Constitution,

the authority may be exercised either before or after the end of the

period, unless a contrary intention is expressly specified in the

provision conferring the authority.

(10) Except to the extent that this Constitution provides

otherwise, if a person has vacated an office established under this

Constitution, the person may, if qualified, again be appointed, elected

or otherwise selected to hold the office in accordance with this

Constitution.

(11) If a function or power conferred on a person under this

Constitution is exercisable by the person only on the advice or

recommendation, with the approval or consent of, or on consultation

with, another person, the function may be performed or the power

exercised only on that advice, recommendation, with that approval or

consent, or after that consultation, except to the extent that this

Constitution provides otherwise.

Interpretation.

260. In this Constitution, unless the context requires otherwise—

“adult” means an individual who has attained the age of eighteen

years;

“affirmative action” includes any measure designed to overcome

or ameliorate an inequity or the systemic denial or infringement of a

right or fundamental freedom;158

Constitution of Kenya, 2010

“child” means an individual who has not attained the age of

eighteen years;

“contravene” includes fail to comply with;

“county legislation” means a law made by a county government

or under authority conferred by a county Assembly;

“disability” includes any physical, sensory, mental, psychological

or other impairment, condition or illness that has, or is perceived by

significant sectors of the community to have, a substantial or long-term

effect on an individual’s ability to carry out ordinary day-to-day

activities;

“document” includes—

(a) any publication, or any matter written, expressed, or inscribed

on any substance by means of letters, figures or marks, or by

more than one of those means, that is intended to be used or

may be used for the purpose of recording that matter; and

(b) electronic files;

“effective date” means the date that this Constitution came into

force;

“fail” includes refuse;

“financial year” means the period of twelve months ending on the

thirtieth day of June or other day prescribed by national legislation, but

the initial financial year of any entity is the period of time from its

coming into existence until the immediately following thirtieth day of

June, or other day prescribed by national legislation;

“Gazette” means the Kenya Gazette published by authority of the

national government, or a supplement to the Kenya Gazette;

“guarantee” means any absolute or conditional promise,

commitment or undertaking by the national government to partially or

completely re-pay any loan to a county government or any person;

“judicial officer” means a registrar, deputy registrar, magistrate,

Kadhi or the presiding officer of a court established under Article 169

(1) (d);

“land” includes—

(a) the surface of the earth and the subsurface rock;159

Constitution of Kenya, 2010

(b) any body of water on or under the surface;

(c) marine waters in the territorial sea and exclusive economic

zone;

(d) natural resources completely contained on or under the

surface; and

(e) the air space above the surface;

“legislation” includes—

(a) an Act of Parliament, or a law made under authority conferred

by an Act of Parliament; or

(b) a law made by an assembly of a county government, or under

authority conferred by such a law;

“loan” includes any form of borrowing, lending or deferred

payment in respect of which money from a public fund may be used, or

is required to be used, for payment or repayment;

“marginalised community” means—

(a) a community that, because of its relatively small population or

for any other reason, has been unable to fully participate in

the integrated social and economic life of Kenya as a whole;

(b) a traditional community that, out of a need or desire to

preserve its unique culture and identity from assimilation, has

remained outside the integrated social and economic life of

Kenya as a whole;

(c) an indigenous community that has retained and maintained a

traditional lifestyle and livelihood based on a hunter or

gatherer economy; or

(d) pastoral persons and communities, whether they are—

(i)nomadic; or

(ii)a settled community that, because of its relative

geographic isolation, has experienced only marginal

participation in the integrated social and economic life

of Kenya as a whole;

“marginalised group” means a group of people who, because of

laws or practices before, on, or after the effective date, were or are

disadvantaged by discrimination on one or more of the grounds in

Constitution of Kenya, 2010

“national legislation” means an Act of Parliament, or a law made

under authority conferred by an Act of Parliament;

“natural resources” means the physical non-human factors and

components, whether renewable or non-renewable, including—

(a) sunlight;

(b) surface and groundwater;

(c) forests, biodiversity and genetic resources; and

(d) rocks, minerals, fossil fuels and other sources of energy;

“older member of society” means a person who has attained the

age of sixty years;

“person” includes a company, association or other body of

persons whether incorporated or unincorporated;

“political party” means an association contemplated in Part 3 of

Chapter Seven;

“property” includes any vested or contingent right to, or interest in

or arising from—

(a) land, or permanent fixtures on, or improvements to, land;

(b) goods or personal property;

(c) intellectual property; or

(d) money, choses in action or negotiable instruments;

“public officer” means—

(a) any State officer; or

(b) any person, other that a State Officer, who holds a public

office;

“public office” means an office in the national government, a

county government or the public service, if the remuneration and

benefits of the office are payable directly from the Consolidated Fund

or directly out of money provided by Parliament;

“public service” means the collectivity of all individuals, other than

State officers, performing a function within a State organ;161

Constitution of Kenya, 2010

“Republic” means the Republic of Kenya;

“State”, when used as a noun, means the collectivity of offices,

organs and other entities comprising the government of the Republic

under this Constitution;

“State office” means any of the following offices—

(a) President;

(b) Deputy President;

(c) Cabinet Secretary;

(d) Member of Parliament;

(e) Judges and Magistrates;

(f) member of a commission to which Chapter Fifteen applies;

(g) holder of an independent office to which Chapter Fifteen

applies;

(h) member of a county assembly, governor or deputy governor

of a county, or other member of the executive committee of a

county government;

(i) Attorney-General;

(j) Director of Public Prosecutions;

(k) Secretary to the Cabinet;

(l) Principal Secretary;

(m) Chief of the Kenya Defence Forces;

(n) commander of a service of the Kenya Defence Forces;

(o) Director-General of the National Intelligence Service;

(p) Inspector-General, and the Deputy Inspectors-General, of the

National Police Service; or

(q) an office established and designated as a State office by

national legislation;

“State officer” means a person holding a State office;

“State organ” means a commission, office, agency or other body 162

Constitution of Kenya, 2010

established under this Constitution;

“writing” includes printing, photography, lithography, typewriting,

Braille, and any other means of representing or reproducing words in a

visible form; and

“youth” means the collectivity of all individuals in the Republic

who—

(a) have attained the age of eighteen years; but

(b) have not attained the age of thirty-five years.

CHAPTER EIGHTEEN—TRANSITIONAL AND CONSEQUENTIAL

PROVISIONS

Consequential legislation.

261. (1) Parliament shall enact any legislation required by this

Constitution to be enacted to govern a particular matter within the

period specified in the Fifth Schedule, commencing on the effective

date.

(2) Despite clause (1), the National Assembly may, by resolution

supported by the votes of at least two-thirds of all the members of the

National Assembly, extend the period prescribed in respect of any

particular matter under clause (1), by a period not exceeding one year.

(3) The power of the National Assembly contemplated under

clause (2), may be exercised—

(a) only once in respect of any particular matter; and

(b) only in exceptional circumstances to be certified by the

Speaker of the National Assembly.

(4) For the purposes of clause (1), the Attorney-General, in

consultation with the Commission for the Implementation of the

Constitution, shall prepare the relevant Bills for tabling before

Parliament, as soon as reasonably practicable, to enable Parliament to

enact the legislation within the period specified.

(5) If Parliament fails to enact any particular legislation within the

specified time, any person may petition the High Court on the matter.

(6) The High Court in determining a petition under clause (5) may

—

(a) make a declaratory order on the matter; and163

Constitution of Kenya, 2010

(b) transmit an order directing Parliament and the

Attorney-General to take steps to ensure that the required

legislation is enacted, within the period specified in the order,

and to report the progress to the Chief Justice.

(7) If Parliament fails to enact legislation in accordance with an

order under clause (6) ( b), the Chief Justice shall advise the President

to dissolve Parliament and the President shall dissolve Parliament.

(8) If Parliament has been dissolved under clause (7), the new

Parliament shall enact the required legislation within the periods

specified in the Fifth Schedule beginning with the date of

commencement of the term of the new Parliament.

(9) If the new Parliament fails to enact legislation in accordance

with clause (8), the provisions of clauses (1) to (8) shall apply afresh.

Transitional and consequential provisions.

262. The transitional and consequential provisions set out in the

Sixth Schedule shall take effect on the effective date.

Effective Date.

263. This Constitution shall come into force on its promulgation

by the President or on the expiry of a period of fourteen days from the

date of the publication in the Gazette of the final result of the

referendum ratifying this Constitution, whichever is the earlier.

Repeal of previous constitution.

264. Subject to the Sixth Schedule, for the avoidance of doubt,

the Constitution in force immediately before the effective date shall

stand repealed on the effective date,

SCHEDULES

FIRST SCHEDULE

(Article 6 (1))

COUNTIES

1. Mombasa

2. Kwale

3. Kilifi

4. Tana River

5. Lamu

6. Taita/Taveta 164

Constitution of Kenya, 2010

7. Garissa

8. Wajir

9. Mandera

10. Marsabit

11. Isiolo

12. Meru

13. Tharaka-Nithi

14. Embu

15. Kitui

16. Machakos

17. Makueni

18. Nyandarua

19. Nyeri

20. Kirinyaga

21. Murang’a

22. Kiambu

23. Turkana

24. West Pokot

25. Samburu

26. Trans Nzoia

27. Uasin Gishu

28. Elgeyo/Marakwet

29. Nandi

30. Baringo

31. Laikipia

32. Nakuru

33. Narok

34. Kajiado

35. Kericho

36. Bomet

37. Kakamega

38. Vihiga

39. Bungoma

40. Busia

41. Siaya

42. Kisumu

43. Homa Bay

44. Migori

45. Kisii

46. Nyamira

47. Nairobi City165

Constitution of Kenya, 2010

SECOND SCHEDULE

(Article 9 (2))

NATIONAL SYMBOLS

(a) THE NATIONAL FLAG

Note—All dimensions given do not necessarily represent any particular

measurement and are merely proportional.

Description—

Three major strips of equal width coloured from top to bottom black,

red and green and separated by narrow white strips, with a

symmetrical shield and white spears superimposed centrally.

166

Constitution of Kenya, 2010

(b) THE NATIONAL ANTHEM

1 1

Ee Mungu nguvu yetu O God of all creation

Ilete baraka kwetu. Bless this our land and nation.

Haki iwe ngao na mlinzi Justice be our shield and defender

Natukae na undugu May we dwell in unity

Amani na uhuru Peace and liberty

Raha tupate na ustawi Plenty be found within our borders.

2 2

Amkeni ndugu zetu Let one and all arise

Tufanye sote bidii With hearts both strong and true.

Nasi tujitoe kwa nguvu Service be our earnest endeavour,

Nchi yetu ya Kenya, And our Homeland of Kenya

Tunayoipenda Heritage of splendour,

Tuwe tayari kuilinda. Firm may we stand to

defend.

3 3

Natujenge taifa letu Let all with one accord

Ee, ndio wajibu wetu In common bond united,

Kenya istahili heshima Build this our nation together

Tuungane mikono And the glory of Kenya

Pamoja kazini The fruit of our labour

Kila siku tuwe na

shukrani. Fill every heart with

thanksgiving167

Constitution of Kenya, 2010

(c) THE COAT OF ARMS

(d) THE PUBLIC SEAL

168

Constitution of Kenya, 2010

THIRD SCHEDULE (Articles 74, 141(3), 148(5) and 152(4))

NATIONAL OATHS AND AFFIRMATIONS

OATH OR SOLEMN AFFIRMATION OF ALLEGIANCE OF THE

PRESIDENT/ACTING PRESIDENT AND THE DEPUTY PRESIDENT

I, ………..................................................................................……,

in full realisation of the high calling I assume as President/Acting

President/Deputy President of the Republic of Kenya, do

swear/solemnly affirm that I will be faithful and bear true allegiance to

the Republic of Kenya; that I will obey, preserve, protect and defend

this Constitution of Kenya, as by law established, and all other laws of

the Republic; and that I will protect and uphold the sovereignty,

integrity and dignity of the people of Kenya. (In the case of an oath—

So help me God.)

OATH OR SOLEMN AFFIRMATION OF DUE EXECUTION OF

OFFICE FOR THE PRESIDENT/ACTING PRESIDENT

I, ………..............................................................................………,

swear/solemnly affirm that I will truly and diligently serve the people

and the Republic of Kenya in the office of the President/ Acting

President of the Republic of Kenya; that I will diligently discharge my

duties and perform my functions in the Office of President/Acting

President of the Republic of Kenya; and I will do justice to all in

accordance with this Constitution, as by law established, and the laws

of Kenya, without fear, favour, affection or ill-will. (In the case of an

oath— So help me God.)

OATH OR SOLEMN AFFIRMATION OF DUE EXECUTION

OF OFFICE FOR THE DEPUTY PRESIDENT

I, ……………..…..........................................................…………,

do swear/solemnly affirm that I will always truly and diligently serve the

people and the Republic of Kenya in the office of the Deputy President

of the Republic of Kenya; that I will diligently discharge my duties and

perform my functions in the said office, to the best of my judgment; that

I will at all times, when so required, faithfully and truly give my counsel

and advice to the President of the Republic of Kenya; that I will do

justice to all without fear, favour, affection or ill-will; and that I will not

directly or indirectly reveal such matters as shall come to my

knowledge in the discharge of my duties and committed to my secrecy.

(In the case of an oath— So help me God.)169

Constitution of Kenya, 2010

OATH OR SOLEMN AFFIRMATION OF DUE EXECUTION OF

OFFICE FOR A CABINET SECRETARY

I, ……........................................……………, being appointed a

Cabinet Secretary of Kenya, do swear/solemnly affirm that I will at all

times be faithful to the Republic of Kenya; that I will obey, respect and

uphold this Constitution of Kenya and all other laws of the Republic;

that I will well and truly serve the people and the Republic of Kenya in

the Office of a Cabinet Secretary; that I undertake to hold my office as

Cabinet Secretary with honour and dignity; that I will be a true and

faithful counsellor to the President for the good management of the

public affairs of the Republic of Kenya; that I will not divulge directly or

indirectly such matters as shall come to my knowledge in the

discharge of my duties and committed to my secrecy except as may be

required for the due discharge of my duties as Cabinet Secretary; and

that I will perform the functions of my office conscientiously and to the

best of my ability. (In the case of an oath— So help me God.).

OATH OR SOLEMN AFFIRMATION OF DUE EXECUTION OF

OFFICE FOR SECRETARY TO THE CABINET/A PRINCIPAL

SECRETARY

I, ……...................................………………, being called on to

exercise the functions of Secretary to the Cabinet /a Principal

Secretary, do swear/solemnly affirm that, except with the authority of

the President, I will not directly or indirectly reveal the nature or

contents of any business, proceedings or document of the Cabinet

committed to my secrecy, except as may be required for the due

discharge of my duties as Secretary to the Cabinet /such Principal

Secretary. (In the case of an oath— So help me God).

OATHS FOR THE CHIEF JUSTICE /PRESIDENT OF THE SUPREME

COURT, JUDGES OF THE SUPREME COURT, JUDGES OF THE

COURT OF APPEAL AND JUDGES OF THE HIGH COURT

I, ……………......................................………, (The Chief

Justice/President of the Supreme Court, a judge of the Supreme Court,

a judge of the Court of Appeal, a judge of the High Court) do (swear in

the name of the Almighty God)/(solemnly affirm) to diligently serve the

people and the Republic of Kenya and to impartially do Justice in

accordance with this Constitution as by law established, and the laws

and customs of the Republic, without any fear, favour, bias, affection,

ill-will, prejudice or any political, religious or other influence. In the

exercise of the judicial functions entrusted to me, I will at all times, and

to the best of my knowledge and ability, protect, administer and defend

this Constitution with a view to upholding the dignity and the respect

for the judiciary and the judicial system of Kenya and promoting

fairness, independence, competence and integrity within it. (So help

me God.)170

Constitution of Kenya, 2010

OATH /AFFIRMATION OF MEMBER OF PARLIAMENT (SENATE/

NATIONAL ASSEMBLY)

I,………...................................……………, having been elected a

member of the Senate/National Assembly do swear (in the name of the

Almighty God) (solemnly affirm) that I will bear true faith and allegiance

to the People and the Republic of Kenya; that I will obey, respect,

uphold, preserve, protect and defend this Constitution of the Republic of

Kenya; and that I will faithfully and conscientiously discharge the duties

of a member of Parliament. (So help me God).

OATH FOR SPEAKER/DEPUTY SPEAKER OF THE

SENATE/NATIONAL ASSEMBLY

I, ...............................................................……………, having

been elected as Speaker/Deputy Speaker of the Senate/ National

Assembly do swear (in the name of the Almighty God) (solemnly

affirm) that I will bear true faith and allegiance to the people and the

Republic of Kenya; that I will faithfully and conscientiously discharge

my duties as Speaker/Deputy Speaker of the Senate/National

Assembly; that I will obey, respect, uphold, preserve, protect and

defend this Constitution of the Republic of Kenya; and that I will do

right to all manner of persons in accordance with this Constitution of

Kenya and the laws and conventions of Parliament without fear or

favour, affection or ill will (So help me God).171

Constitution of Kenya, 2010

FOURTH SCHEDULE (Article 185(2), 186(1) and 187(2))

Distribution of Functions Between the National Government and

the County Governments

PART 1—NATIONAL GOVERNMENT

1.Foreign affairs, foreign policy and international trade.

2.The use of international waters and water resources.

3.Immigration and citizenship.

4.The relationship between religion and state.

5.Language policy and the promotion of official and local

languages.

6.National defence and the use of the national defence services.

7.Police services, including—

(a) the setting of standards of recruitment, training of police

and use of police services;

(b) criminal law; and

(c) correctional services.

8.Courts.

9. National economic policy and planning.

10.Monetary policy, currency, banking (including central banking),

the incorporation and regulation of banking, insurance and

financial corporations.

11.National statistics and data on population, the economy and

society generally.

12.Intellectual property rights.

13.Labour standards.

14.Consumer protection, including standards for social security

and professional pension plans.

15.Education policy, standards, curricula, examinations and the

granting of university charters.

16.Universities, tertiary educational institutions and other

institutions of research and higher learning and primary

schools, special education, secondary schools and special

education institutions.

17.Promotion of sports and sports education.

18.Transport and communications, including, in particular—

(a) road traffic;

(b) the construction and operation of national trunk roads;

(c) standards for the construction and maintenance of other

roads by counties;

(d) railways;172

Constitution of Kenya, 2010

(e) pipelines;

(f) marine navigation;

(g) civil aviation;

(h) space travel;

(i) postal services;

(j) telecommunications; and

(k) radio and television broadcasting.

19.National public works.

20.Housing policy.

21.General principles of land planning and the co-ordination of

planning by the counties.

22.Protection of the environment and natural resources with a view

to establishing a durable and sustainable system of

development, including, in particular—

(a) fishing, hunting and gathering;

(b) protection of animals and wildlife;

(c) water protection, securing sufficient residual water,

hydraulic engineering and the safety of dams; and

(d) energy policy.

23.National referral health facilities.

24.Disaster management.

25.Ancient and historical monuments of national importance.

26.National elections.

28.Health policy.

29.Agricultural policy.

30.Veterinary policy.

31.Energy policy including electricity and gas reticulation and

energy regulation.

32.Capacity building and technical assistance to the counties.

33.Public investment.

34. National betting, casinos and other forms of gambling.

35. Tourism policy and development.173

Constitution of Kenya, 2010

PART 2—COUNTY GOVERNMENTS

The functions and powers of the county are—

1. Agriculture, including—

(a)crop and animal husbandry;

(b)livestock sale yards;

(c)county abattoirs;

(d)plant and animal disease control; and

(e)fisheries.

2. County health services, including, in particular—

(a) county health facilities and pharmacies;

(b) ambulance services;

(c) promotion of primary health care;

(d) licensing and control of undertakings that sell food to the

public;

(e) veterinary services (excluding regulation of the profession);

(f) cemeteries, funeral parlours and crematoria; and

(g) refuse removal, refuse dumps and solid waste disposal.

3. Control of air pollution, noise pollution, other public nuisances and

outdoor advertising.

4. Cultural activities, public entertainment and public amenities,

including—

(a) betting, casinos and other forms of gambling;

(b) racing;

(c) liquor licensing;

(d) cinemas;

(e) video shows and hiring;

(f) libraries;

(g) museums;

(h) sports and cultural activities and facilities; and

(i) county parks, beaches and recreation facilities.

5. County transport, including—

(a) county roads;

(b) street lighting;

(c) traffic and parking;

(d) public road transport; and

(e) ferries and harbours, excluding the regulation of 174

Constitution of Kenya, 2010

international and national shipping and matters related

thereto.

6. Animal control and welfare, including—

(a) licensing of dogs; and

(b) facilities for the accommodation, care and burial of animals.

7. Trade development and regulation, including—

(a) markets;

(b) trade licences (excluding regulation of professions);

(c) fair trading practices;

(d) local tourism; and

(e) cooperative societies.

8. County planning and development, including—

(a) statistics;

(b) land survey and mapping;

(c) boundaries and fencing;

(d) housing; and

(e) electricity and gas reticulation and energy regulation.

9. Pre-primary education, village polytechnics, homecraft centres and

childcare facilities.

10. Implementation of specific national government policies on natural

resources and environmental conservation, including—

(a) soil and water conservation; and

(b) forestry.

11. County public works and services, including—

(a) storm water management systems in built-up areas; and

(b) water and sanitation services.

12.Fire fighting services and disaster management.

13.Control of drugs and pornography.

14.Ensuring and coordinating the participation of communities and

locations in governance at the local level and assisting

communities and locations to develop the administrative

capacity for the effective exercise of the functions and powers

and participation in governance at the local level.175

Constitution of Kenya, 2010

FIFTH SCHEDULE (Article 261 (1))

LEGISLATION TO BE ENACTED BY PARLIAMENT

Specification

CHAPTER TWO—REPUBLIC

Legislation in respect of culture (Article 11 (3)) Five years

Specification

Specification

Accounts and audit of public entities (Article 226) Four years

Procurement of public goods and services (Article 227) Four years

Legislation on citizenship (Article 18) One year

CHAPTER FOUR—THE BILL OF RIGHTS

Freedom of the media (Article 34) Three years

Family (Article 45) Five years

Consumer protection (Article 46) Four years

Fair administrative action (Article 47) Four years

Fair hearing (Article 50) Four years

Rights of persons detained, held in custody or detained (Article

51)Four years

Kenya National Human Rights and Equality Commission (Article

59)One year

CHAPTER FIVE—LAND AND ENVIRONMENT

Community land (Article 63) Five years

Regulation of land use and property (Article 66) Five years

Legislation on land (Article 68) 18 months

Agreements relating to natural resources (Article 71) Five years

Legislation regarding environment (Article 72) Four years

CHAPTER SIX—LEADERSHIP AND INTEGRITY

Ethics and anti-corruption commission (Article 79) One year

Legislation on leadership (Article 80) Two years

Legislation on elections (Article 82) One year

Electoral disputes (Article 87) One year

Independent Electoral and Boundaries Commission (Article 88) One year

Legislation on political parties (Article 92) One year176

Constitution of Kenya, 2010

Promotion of representation of marginalised groups (Article 100) Five years

Vacation of office of member of Parliament (Article 103) One year

Right of recall (Article 104) Two years

Determination of questions of membership of Parliament (Article

105)Two years

Right to petition Parliament (Article 119) Two years

CHAPTER NINE—EXECUTIVE

Power of mercy (Article 133) One year

Assumption of office of president (Article 141) Two years

CHAPTER TEN—JUDICIARY

System of courts (Article 162) One year

Removal from office (Article 168) One year

Judiciary Fund (Article 173) Two years

Vetting of judges and magistrates (Sixth schedule, Section 23) One year

Speaker of a county assembly (Article 178) One year

Urban areas and cities (Article 183) One year

Support for county governments (Article 190) Three years

Removal of a county governor (Article 181) 18 months

Vacation of office of member of county assembly (Article 194) 18 months

Public participation and county assembly powers, privileges and

immunities (Article 196)Three years

County assembly gender balance and diversity (Article 197) Three years

Legislation to effect Chapter eleven (Article 200 and Sixth

Schedule, section 15) and 18 months

Revenue Funds for county governments (Article 207) 18 months

Contingencies Fund (Article 208) One year

Loan guarantees by national government (Article 213) One year

Financial control (Article 225) Two years177

Constitution of Kenya, 2010

Values and principles of public service (Article 232) Four years

National security organs (Article 239) Two years

Command of the National Police Service (Article 245) Two years

GENERAL

Any other legislation required by this Constitution Five years

SIXTH SCHEDULE ( Article 262)

TRANSITIONAL AND CONSEQUENTIAL PROVISIONS

PART 1—G ENERAL

Interpretation.

1. In this Schedule, unless the context requires otherwise—

(a) “Boundaries Commission” means Interim Independent

Boundaries Commission;

(b) “Electoral Commission” means Interim Independent Electoral

Commission;

(c) “former Constitution” means the Constitution in force before

this Constitution came into force.

Suspension of provisions of this Constitution.

2. (1) The following provisions of this Constitution are suspended

until the final announcement of all the results of the first elections for

Parliament under this Constitution—

(a) Chapter Seven, except that the provisions of the Chapter shall

apply to the first general elections under this Constitution;

(b) Chapter Eight, except that the provisions of the Chapter

relating to the election of the National Assembly and the 178

Constitution of Kenya, 2010

Senate shall apply to the first general elections under this

Constitution; and

(c) Articles 129 to 155 of Chapter Nine, except that the provisions

of the Chapter relating to the election of the President shall

apply to the first general elections under this Constitution.

(2) The provisions of this Constitution relating to devolved

government, including Article 187, are suspended until the date of the

first elections for county assemblies and governors held under this

Constitution.

(3) Despite subsection (2)—

(a) elections for county assemblies and governors shall be held in

accordance with Articles 177 and 180 of this Constitution; and

(b) the laws relating to devolved government, required by this

Schedule and Chapters Eleven and Twelve of this

Constitution, shall be enacted within the period stipulated in

the Fifth Schedule.

(4) Article 62 (2) and (3) is suspended until the National Land

Commission is established.

Extension of application of provisions of the former constitution.

3.(1) Until Parliament passes the Act anticipated in Articles 15

and 18, section 93 of the former Constitution continues to apply.

(2) Sections 30 to 40, 43 to 46 and 48 to 58 of the former

Constitution, the provisions of the former Constitution concerning the

executive, and the National Accord and Reconciliation Act, shall

continue to operate until the first general elections held under this

Constitution, but the provisions of this Constitution concerning the

system of elections, eligibility for election and the electoral process

shall apply to that election.

(3) Until the National Police Service Commission referred to in

applies to appointments, discipline and the removal of persons from

office in the National Police Service.

Parliamentary Select Committee.

4.There shall be a select committee of Parliament to be known

as the Constitutional Implementation Oversight Committee which shall

be responsible for overseeing the implementation of this Constitution

and which, among other things—

(a) shall receive regular reports from the Commission on the 179

Constitution of Kenya, 2010

Implementation of the Constitution on the implementation of

this Constitution including reports concerning—

(i) the preparation of the legislation required by this

Constitution and any challenges in that regard;

(ii) the process of establishing the new commissions;

(iii) the process of establishing the infrastructure necessary

for the proper operation of each county including

progress on locating offices and assemblies and

establishment and transfers of staff;

(iv) the devolution of powers and functions to the counties

under the legislation contemplated in section 15 of this

Schedule; and

(v)any impediments to the process of

implementing this Constitution;

(b) coordinate with the Attorney-General, the Commission on the

Implementation of the Constitution and relevant parliamentary

committees to ensure the timely introduction and passage of

the legislation required by this Constitution; and

(c) take appropriate action on the reports including addressing

any problems in the implementation of this Constitution.

Commission for the Implementation of the Constitution.

5.(1) There is established the Commission for the

Implementation of the Constitution.

(2) The Commission consists of—

(a) a chairperson; and

(b) eight other members.

(3) The members of the Commission shall—

(a) include persons with experience in public administration,

human rights and government; and

(b) not include any person who served as a member of the

Committee of Experts appointed under the Constitution of

Kenya Review Act, 2008.

(4) Articles 248 to 254 apply to the Commission.

(5) After the Commission on Revenue Allocation has been

established, the Commission for the Implementation of the Constitution 180

Constitution of Kenya, 2010

shall send a notice of its meetings to that Commission, and a member

of the Commission on Revenue Allocation shall be permitted to attend

and participate in any such meeting, but shall not vote.

(6) The functions of the Commission shall be to—

(a) monitor, facilitate and oversee the development of legislation

and administrative procedures required to implement this

Constitution;

(b) co-ordinate with the Attorney-General and the Kenya Law

Reform Commission in preparing, for tabling in Parliament,

the legislation required to implement this Constitution;

(c) report regularly to the Constitutional Implementation Oversight

Committee on—

(i) progress in the implementation of this Constitution; and

(ii) any impediments to its implementation; and

(d) work with each constitutional commission to ensure that the

letter and spirit of this Constitution is respected.

(7) The Commission for the Implementation of the Constitution

shall stand dissolved five years after it is established or at the full

implementation of this Constitution as determined by Parliament,

whichever is sooner, but the National Assembly may, by resolution,

extend its life.

PART 2—EXISTING OBLIGATIONS, LAWS AND RIGHTS

Rights, duties and obligations of the State.

6.Except to the extent that this Constitution expressly provides

to the contrary, all rights and obligations, however arising, of the

Government or the Republic and subsisting immediately before the

effective date shall continue as rights and obligations of the national

government or the Republic under this Constitution.

Existing laws.

7.(1) All law in force immediately before the effective date

continues in force and shall be construed with the alterations,

adaptations, qualifications and exceptions necessary to bring it into

conformity with this Constitution.

(2) If, with respect to any particular matter—

(a) a law that was in effect immediately before the effective date

assigns responsibility for that matter to a particular State 181

Constitution of Kenya, 2010

organ or public officer; and

(b) a provision of this Constitution that is in effect assigns

responsibility for that matter to a different State organ or

public officer,

the provisions of this Constitution prevail to the extent of the conflict.

Existing land holdings and agreements relating to natural

resources.

8.(1) On the effective date, any freehold interest in land in Kenya

held by a person who is not a citizen shall revert to the Republic of

Kenya to be held on behalf of the people of Kenya, and the State shall

grant to the person a ninety-nine year lease at a peppercorn rent.

(2) On the effective date, any other interest in land in Kenya

greater than a ninety-nine year lease held by a person who is not a

citizen shall be converted to a ninety-nine year lease.

(3) The provisions of Article 71 shall not take effect until the

legislation contemplated under that Article is enacted.

PART 3—NATIONAL GOVERNMENT

Elections and by-elections.

9.(1) The first elections for the President, the National Assembly,

the Senate, county assemblies and county governors under this

Constitution shall be held at the same time, within sixty days after the

dissolution of the National Assembly at the end of its term.

(2) Despite subsection (1), if the coalition established under the

National Accord is dissolved and general elections are held before

2012, elections for the first county assemblies and governors shall be

held during 2012.

National Assembly.

10. The National Assembly existing immediately before the

effective date shall continue as the National Assembly for the purposes

of this Constitution for its unexpired term.

The Senate.

11. (1) Until the first Senate has been elected under this

Constitution—

(a) the functions of the Senate shall be exercised by the National

Assembly; and182

Constitution of Kenya, 2010

(b) any function or power that is required to be performed or

exercised by both Houses, acting jointly or one after the

other, shall be performed or exercised by the National

Assembly.

(2) Any function or power of the Senate shall, if performed or

exercised by the National Assembly before the date contemplated in

subsection (1), be deemed to have been duly performed or exercised

by the Senate.

The Executive.

12. (1) The persons occupying the offices of President and Prime

Minister immediately before the effective date shall continue to serve

as President and Prime Minister respectively, in accordance with the

former Constitution and the National Accord and Reconciliation Act,

2008 until the first general elections held under this Constitution,

unless they vacate office in terms of the former Constitution and the

Accord.

(2) The persons occupying the offices of Vice-President and

Deputy Prime Minister or holding a position in the Cabinet or as an

Assistant Minister immediately before the effective date shall continue

to serve in accordance with the former Constitution until the first

general elections held under this Constitution unless they vacate or are

removed from office in accordance with the former Constitution and the

National Accord and Reconciliation Act.

(3) A person who was elected President before the effective date

is not eligible to stand for election as President under this Constitution.

Oath of allegiance to this Constitution.

13. On the effective date, the President and any State officer or

other person who had, before the effective date, taken and subscribed

an oath or affirmation of office under the former Constitution, or who is

required to take and subscribe an oath or affirmation of office under

this Constitution, shall take and subscribe the appropriate oath or

affirmation under this Constitution.

PART 4—DEVOLVED GOVERNMENT

Operation of provisions relating to devolved government.

14. (1) The laws contemplated in section 2 (3) ( b) and section 15

may be enacted only after the Commission on the Implementation of

the Constitution and, if it has been established, the Commission on

Revenue Allocation, have been consulted and any recommendations

of the Commissions have been considered by Parliament.183

Constitution of Kenya, 2010

(2) The Commissions shall be given at least thirty days to

consider legislation under subsection (1).

(3) Subsections (1) and (2) lapse when the Commission on the

Implementation of the Constitution is dissolved.

Provision for devolution of functions to be made by Act of

Parliament.

15. (1) Parliament shall, by legislation, make provision for  the

phased transfer, over a period of not more than three years from the

date of the first election of county assemblies, from the national

government to county governments of the functions assigned to them

under Article 185.

(2) The legislation referred to in subsection (1) shall—

(a) provide for the way in which the national government shall—

(i)facilitate the devolution of power;

(ii)assist county governments in building their capacity to

govern effectively and provide the services for which

they are responsible; and

(iii) support county governments;

(b) establish criteria that must be met before particular functions

are devolved to county governments to ensure that those

governments are not given functions which they cannot

perform;

(c) permit the asymmetrical devolution of powers to ensure that

functions are devolved promptly to counties that have the

capacity to perform them but that no county is given functions

it cannot perform; and

(d) provide mechanisms that ensure that the Commission on the

Implementation of the Constitution can perform its role in

monitoring the implementation of the system of devolved

government effectively.

Division of revenue.

16. Despite Article 217 (1), the first and second determinations of

the basis of the division of revenue among the counties shall be made

at three year intervals, rather than every five years as provided in that

Article.184

Constitution of Kenya, 2010

Provincial Administration.

17. Within five years after the effective date, the national

government shall restructure the system of administration commonly

known as the provincial administration to accord with and respect the

system of devolved government established under this Constitution.

Local Authorities.

18. All local authorities established under the Local Government

Act (Cap. 265) existing immediately before the effective date shall

continue to exist subject to any law that might be enacted.

PART 5—ADMINISTRATION OF JUSTICE

Rules for the enforcement of the Bill of Rights.

19. Until the Chief Justice makes the rules contemplated by

Article 22, the Rules for the enforcement of the fundamental rights and

freedoms under section 84 (6) of the former Constitution shall continue

in force with the alterations, adaptations, qualifications and exceptions

as may be necessary to bring them into conformity with Article 22.

The Judicial Service Commission.

20. (1) The Judicial Service Commission shall be appointed

within sixty days after the effective date and the Commission shall be

deemed to be properly constituted under this Constitution despite the

fact that there may be a vacancy in its membership because of any of

the bodies nominating or electing members have not done so.

(2) Despite subsection (1), the Judicial Service Commission may

not perform its functions unless five members have been appointed.

(3) To ensure continuity in the operation of the Judicial Service

Commission, despite Article 171 (4), when the Commission is first

constituted the following members shall be appointed to serve for three

years only—

(a) the Court of Appeal judge appointed under Article 171 (4) ( c);

(b) the High Court judge appointed under Article 171 (4) ( d);

(c) one of the advocates appointed under Article 171 (4) ( f), to be

identified by the statutory body responsible for the

professional regulation of advocates; and

(d) one of the members appointed by the President under Article

171 (4) (h), to be identified by the President. 185

Constitution of Kenya, 2010

(4) Until the Public Service Commission contemplated in Article

233 is established, a person nominated by the Public Service

Commission established under section 106 of the former Constitution

shall serve on the Judicial Service Commission but, when the new

Public Service Commission is established, the person shall cease to

be a member of the Judicial Service Commission and the new Public

Service Commission shall nominate a person to serve on the Judicial

Service Commission.

Establishment of the Supreme Court.

21. (1) The establishment of, and appointment of judges to, the

Supreme Court shall be completed within one year after the effective

date.

(2) Until the Supreme Court is established, the Court of Appeal

shall have jurisdiction over matters assigned to the Supreme Court.

Judicial proceedings and pending matters.

22. All judicial proceedings pending before any court shall

continue to be heard and shall be determined by the same court or a

corresponding court established under this Constitution or as directed

by the Chief Justice or the Registrar of the High Court.

Judges.

23. (1) Within one year after the effective date, Parliament shall

enact legislation, which shall operate despite Article 160, 167 and 168,

establishing mechanisms and procedures for vetting, within a

timeframe to be determined in the legislation, the suitability of all

judges and magistrates who were in office on the effective date to

continue to serve in accordance with the values and principles set out

in Articles 10 and 159.

(2) A removal, or a process leading to the removal, of a judge,

from office by virtue of the operation of legislation contemplated under

subsection (1) shall not be subject to question in, or review by, any

court.

Chief Justice.

24. (1) The Chief Justice in office immediately before the effective

date shall, within six months after the effective date, vacate office and

may choose either—

(a) to retire from the judiciary; or

(b) subject to the process of vetting under section 23, to continue

to serve on the Court of Appeal. 186

Constitution of Kenya, 2010

(2) A new Chief Justice shall be appointed by the President,

subject to the National Accord and Reconciliation Act, and after

consultation with the Prime Minister and with the approval of the

National Assembly.

(3) Subsection (2) also applies if there are further vacancies in

the office of Chief Justice before the first general elections under this

Constitution.

PART 6—COMMISSIONS AND OFFICES

Constitutional Commissions.

25. (1) The Commission on the Implementation of the

Constitution and the Commission on Revenue Allocation shall be

constituted within ninety days after the effective date.

(2)The Salaries and Remuneration Commission shall be

constituted within nine months after the effective date.

(3) Until the legislation anticipated in Article 250 is in force, the

persons appointed as members or as chairperson of the Salaries and

Remuneration Commission shall be appointed by the President,

subject to the National Accord and Reconciliation Act, and after

consultation with the Prime Minister and with the approval of the

National Assembly.

The Kenya National Human Rights and Equality Commission.

26. (1) The commissioners of the Kenya National Commission on

Human Rights appointed under the Kenya National Commission on

Human Rights Act, 2002 (No. 9 of 2002) and the commissioners of the

National Commission on Gender and Development, appointed under

the National Commission on Gender and Development Act, 2003 (No.

13 of 2003) other than the Permanent Secretaries and the

Attorney-General or a representative of the Attorney-General, shall

become members of the Kenya National Human Rights and Equality

Commission for their unexpired term but each shall retain the terms of

service as at the effective date.

(2) The chairperson of the Kenya National Commission on

Human Rights shall be the chairperson of the Kenya National Human

Rights and Equality Commission for the unexpired term of that

chairperson, and the chairperson of the National Commission on

Gender and Development shall be the Vice- Chairperson of the Kenya

National Human Rights and Equality Commission for that

chairperson’s unexpired term. 187

Constitution of Kenya, 2010

The Interim Independent Boundaries Commission.

27. (1) The Boundaries Commission established under the former

Constitution shall continue to function as constituted under that

Constitution and in terms of sections 41B and 41C but—

(a) it shall not determine the boundaries of the counties

established under this Constitution;

(b) it shall determine the boundaries of constituencies and wards

using the criteria mentioned in this Constitution; and

(c) members of the Commission shall be subject to Chapter

Seven of this Constitution.

(3) The requirement in Article 89(2) that a review of constituency

and ward boundaries shall be completed at least twelve months before

a general election does not apply to the review of boundaries

preceding the first elections under this Constitution.

(4) The Boundaries Commission shall ensure that the first review

of constituencies undertaken in terms of this Constitution shall not

result in the loss of a constituency existing on the effective date.

The Interim Independent Electoral Commission and Independent

Electoral and Boundaries Commission.

28. (1) The Interim Independent Electoral Commission

established under section 41 of the former Constitution shall continue

in office in terms of the former Constitution for its unexpired term or

until the Independent Electoral and Boundaries Commission

established under this Constitution is established, whichever is later.

(2) When members of the Independent Electoral and Boundaries

Commission are selected, regard shall be had to the need for

continuity and the retention of expertise and experience.

New appointments.

29. (1) The process of appointment of persons to fill vacancies

arising in consequence of the coming into force of this Constitution

shall begin on the effective date and be finalised within one year.

(2) Unless this Schedule prescribes otherwise, when this

Constitution requires an appointment to be made by the President with

the approval of the National Assembly, until after the first elections

under this Constitution, the President shall, subject to the National

Accord and Reconciliation Act, appoint a person after consultation with

the Prime Minister and with the approval of the National Assembly.188

Constitution of Kenya, 2010

PART 6—MISCELLANEOUS MATTERS

Citizenship by birth.

30. A Kenyan citizen is a citizen by birth if that citizen—

(1) acquired citizenship under Article 87 or 88 (1) of the former

Constitution; or

(2) would have acquired citizenship if Article 87 (2) read as

follows:

“Every person who, having been born outside Kenya, is on 11th

December, 1963 a citizen of the United Kingdom and Colonies or a

British protected person shall, if his father or mother becomes, or

would but for his or her death have become, a citizen of Kenya by

virtue of subsection (1), become a citizen of Kenya on 12th December,

1963.”

Existing offices.

31. (1) Unless this Schedule provides otherwise, a person who

immediately before the effective date, held or was acting in an office

established by the former Constitution shall on the effective date

continue to hold or act in that office under this Constitution for the

unexpired period, if any, of the term of the person.

(2) Subject to subsection (7) and section 24, a person who

immediately before the effective date held or was acting in a public

office established by law, so far as is consistent with this Constitution,

shall continue to hold or act in that office as if appointed to that position

under this Constitution.

(3) The provisions of this section shall not affect the powers

conferred on any person or authority under this Constitution or

legislation to abolish offices or remove persons from an office

contemplated in subsection (2).

(4) If a person has vacated an office that the person held before

the effective date, and that office is retained or established under this

Constitution, the person may, if qualified, again be appointed, elected,

or otherwise selected to hold that office in accordance with the

provisions of this Constitution, except to the extent that this

Constitution expressly provides otherwise.

(5) The functions of the Director of Public Prosecutions shall be

performed by the Attorney-General until a Director of Public

Prosecutions is appointed under this Constitution. 189

Constitution of Kenya, 2010

(6) The functions of the Controller of Budget shall be performed

by the Auditor-General until a Controller of Budget is appointed under

this Constitution.

(7) Despite subsection (1), the Attorney-General and the

Auditor-General shall continue in office for a period of no more than

twelve months after the effective date and the subsequent

appointments to those offices shall be made under this Constitution.

Pensions, gratuities and other benefits.

32. The law applicable to pensions in respect of holders of

constitutional offices under the former Constitution shall be either the

law that was in force at the date on which those benefits were granted

or any law in force at a later date that is not less favourable to the

person.

Succession of institutions, offices, assets and liabilities.

33. An office or institution established under this Constitution is

the legal successor of the corresponding office or institution,

established under the former Constitution or by an Act of Parliament in

force immediately before the effective date, whether known by the

same or a new name.

Currency.

34. Nothing in Article 231 (4) affects the validity of coins and

notes issued before the effective date.190

Constitution of Kenya, 2010

[Subsidiary]

SUBSIDIARY LEGISLATION

THE CONSTITUTION OF KENYA

THE CONSTITUTION OF KENYA REVIEW ACT, 2008

(No 9 of 2008)

THE NEW CONSTITUTION OF KENYA

PROMULGATION

By His Excellency the Honorable Mwai Kibaki, President and

Commander-in-Chief of the Armed Forces of the Republic of Kenya.

WHEREAS the people of Kenya, in exercise of their sovereign right to

replace the Constitution, ratified the proposed New Constitution of Kenya through a

referendum held on the 4th August, 2010, in accordance with the provisions of section 47A

of the Constitution of Kenya and Part V of the Constitution of Kenya Review Act, 2008;

AND WHEREAS the Constitution of Kenya (Amendment) Act, 2008 and the

Constitution of Kenya Review Acts of 1997 and 2008, as variously amended, provided a

legal framework for the comprehensive review and replacement of the current Constitution

by the people of Kenya, which ensured that the review process—

(a) accommodated the diversity of the Kenyan people, including socio economic

status, race, ethnicity, gender, religious faith, age, occupation, learning, persons

with disabilities and the disadvantaged and was guided by respect for the

universal principles of human rights, gender equity and democracy;

(b) provided the people of Kenya an opportunity to actively, freely and meaningfully

participate in generating and debating proposals to alter the Constitution;

(c) resulted in a new Constitution which faithfully reflected the wishes of the people of

Kenya;

AND WHEREAS for the last two decades, the people of Kenya have yearned for a

new Constitution which—

(a) guarantees peace, national unity and integrity of the Republic of Kenya in order to

safeguard the well-being of the people of Kenya;

(b) establishes a free and democratic system of Government that ensures good

governance, constitutionalism, the rule of law, human rights and gender equity;

(c) recognizes and demarcates divisions of responsibility among the various state

organs, including the executive, the legislature and the judiciary, so as to create

checks and balances between them and to ensure accountability of the

Government and its officers to the people of Kenya;191

Constitution of Kenya, 2010

[Subsidiary]

(d) promotes the people’s participation in the governance of the country through

democratic, free and fair elections and the devolution and exercise of power and

further ensures the full participation of the people in the management of public

affairs;

(e) respects the pride of the people of Kenya in their ethnic, cultural and religious

diversity and their determination to live in peace and unity as one indivisible

sovereign nation;

(f) ensures the provision of basic needs of all Kenyans through the establishment of

an equitable framework for economic growth and equitable access to national

resources;

(g) strengthens national integration and unity and commits Kenyans to peaceful

resolution of national issues through dialogue and consensus;

NOW THEREFORE, in exercise of the powers conferred on me by section 47A (6) of

the Constitution of Kenya and section 43A of the Constitution of Kenya Review Act, 2008, I,

Mwai Kibaki, President and Commander-in-Chief of the Armed Forces of the Republic of

Kenya, declare that the Constitution set out in the Schedule shall be the new Constitution of

Kenya with effect from the 27th August, 2010.

SCHEDULE—(The Constitution of Kenya ).192

Constitution of Kenya, 2010

[Subsidiary]

L.N. 72/2005, L.N. 134/2010, L.N. 104/2011.

PUBLIC PROSECUTIONS

DELEGATION OF POWERS

IN EXERCISE of the powers conferred by Article 157 (9) of the Constitution of Kenya,

the Director of Public Prosecutions orders that all powers vested in him by Article 157 (4)

and (6) of the Constitution shall be exercised by the persons for the time being holding the

offices specified in the Schedule, acting in accordance with his general or special

instructions.

SCHEDULE

Chief Public Prosecutor

Deputy Chief Public Prosecutor

Chief State Counsel

Special Public Prosecutor

Senior Deputy Prosecution Counsel

Deputy Prosecution Counsel

Assistant Deputy Public Prosecutor/Senior Principal State Counsel/Senior Principal

Prosecution Counsel

Principal State Counsel/Principal Prosecution Counsel

Senior State Counsel/Senior Prosecution Counsel

State Counsel/Prosecution Counsel.

This Notice shall be deemed to have come into operation on the 20th June, 2011.

Legal Notice No. 134 of 2010 is revoked.

193