Article 98 of the Constitution of Kenya

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