The Commission for the Implementation of the Constitution Bill, 2010 1

THE COMMISSION FOR THE IMPLEMENTATION OF THE

CONSTITUTION BILL, 2010

ARRANGEMENT OF CLAUSES

Clause Commented [J1]: Note that since it’s a bill, its divided into
clauses

PART I — PRELIMINARY Commented [J2]: Bills are divided into parts

1— Short title and commencement

2— Interpretation

PART II — ADMINISTRATION

3— Incorporation of the Commission

4— Functions of the Commission

5— Powers of the Commission

6— Membership of the Commission

7— Qualification of Members

8— Procedure for appointment of members

9— Chairperson

10 — Tenure of office of chairperson and members

11 — Vacancy

12 — Filling of vacancy

13 — Disqualification from holding elective office.

14 — Appointment of Secretary

15 — Oath of Office

16 — Committees of the Commission

17 — Procedure of the Commission

18 — Terms and conditions of service.

 The Commission for the Implementation of the Constitution Bill, 2010 2

19 — Appointment of Staff

20 — The Common Seal of the Commission

21 — Protection from personal liability

PART III - FINANCIAL PROVISIONS

22 — Funds of the Commission

23 — Financial year

24 — Annual estimates

25 — Accounts and audit

PART IV- MISCELLANEOUS PROVISIONS

26 — Progress report.

27 — Annual report

28 — Duty to cooperate.

29 — Regulations

30 — Dissolution of the Commission.

 The Commission for the Implementation of the Constitution Bill, 2010 3

A Bill for Commented [J3]: Must always be there for a bill.

AN ACT of Parliament to provide for the functions; powers; qualification of, and
appointment procedure for members of the Commission for the Implementation of
the Constitution and for connected purposes. Commented [J4]: Long Title

ENACTED by the parliament of Kenya, as follows- Commented [J5]: This is known as the enacting formula,
acknowledging that parliament is the supreme law making body in
PART I — PRELIMINARY the country, e.g. “be it enacted by parliament..”
NB: generally provided for in Constitution & interpretation act,
declares supremacy of parliament as sole legislative body.
Short title and 1. This Act may be cited as the Commission for the Implementation of
Commencement the Constitution Act, 2010, and shall come into operation on the date of
assent. Commented [J6]: Short Title, identifies law & cites act.

Interpretation 2. In this Act, unless the context otherwise requires — Commented [J7]: Interpretation provision/section, here you
define special words used.

“chairperson” means Chairperson appointed in accordance with the

Constitution and section 7 of this Act;

“Commission” means the Commission for the Implementation of the

Constitution established under Paragraph 5 of the Sixth Schedule of the
Constitution;

“Parliamentary Select Committee” means the Constitutional

Implementation Oversight Committee established in accordance with the
Sixth Schedule of the Constitution;

“Secretary” means the Secretary appointed in accordance with section 13

of this Act.

PART II — ADMINISTRATION Commented [J8]: The 2nd Part deals with the substantive part,
provision of rights, administrative provisions i.e. institutional
arrangements dealing with enacting that law. They can be as many
Incorporation of 3. (1) The Commission shall in accordance with the Constitution, be a as 10 or 20.
the Commission. body corporate with perpetual succession and a common seal and shall
in its corporate name, be capable of —

(a) suing and being sued; Commented [J9]: Note that sub paragraph starts with lower
case.

(b) acquiring, holding, charging and disposing of movable and Commented [J10]: Observe the use of semi-colons

immovable property; and Commented [J11]: The word “and” used after the semi-colon,
used to connote togetherness

(c) doing or performing all such other things or acts for the proper
 The Commission for the Implementation of the Constitution Bill, 2010 4

discharge of its functions under the Constitution and this Act.

(3) The headquarters of the Commission shall be in Nairobi, but the

Commission may establish branches at any place in Kenya.

Functions of the 4. The functions of the Commission shall be to— Commented [J12]: The hyphen-line, is used in a bill when
Commission. introducing a list.

(a) monitor, facilitate, and oversee the development of legislation

and administrative procedures required to implement the
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 the Constitution;

(c) work with each constitutional Commission to ensure that the

letter and the spirit of the Constitution is respected;

(d) report regularly to the Constitutional Implementation Oversight

Committee on—

(i) the progress in the implementation of the

Constitution; and

(ii) any impediments to the implementation of the

constitution;

(e) exercise such other functions as are provided for by the

constitution or any other written law.

Powers of the 5. The Commission shall have all powers generally necessary for the
Commission. execution of its functions under the constitution and this Act. Commented [J13]: Marginal Note
NB: that they are in a smaller font size as compared to the
substantive portion.
Membership of 6. The Commission shall consist of a Chairperson and eight other They must be presented in a logical order and in accordance with the
the Commission. constitution.
members appointed in accordance with the Constitution and the
Commented [J14]: Note that marginal notes and clauses should
provisions of this Act. be similar.

Qualifications of 7. (1) A person is qualified for appointment as a member if such

Chairperson and person—
Members.

(a) is a citizen of Kenya;

(b) possess a degree from a recognized university;

 The Commission for the Implementation of the Constitution Bill, 2010 5

(c) have knowledge and experience of at least ten years in matters

relating to any of the following fields —

(i) law,

(ii) public administration,

(iii) economics,

(iv) gender,

(v) human rights, or

(vi) government;

(d) meet the requirements of chapter six of the Constitution; and

(e) has had a distinguished career in their respective fields.

(2) The chairperson of the Commission shall be a person who is

qualified to hold the office of judge of the Supreme Court under the
Constitution.

(3) No person shall be qualified for appointment as a member if such a

person—

(a) is a member of Parliament;

(b) is a member of a local authority; or

(c) is bankrupt

(d) has served as a member of the Committee of Experts appointed

under the Constitution of Kenya Review Act, 2008.

Procedure for 8. (1) The President in consultation with the Prime Minister shall, Commented [J15]: Sub-clauses have to be in brackets. Also
appointment of within seven days of the commencement of this Act, by notice in the paragraphs and sub-paragraphs also have to be in brackets.
members.
gazette declare vacancies in the Commission and request for
applications.

(2) An application under subsection (1) shall be forwarded to the Public

Service Commission within fourteen days of the notice and may be made
by any –

(a) qualified person; or

The Commission for the Implementation of the Constitution Bill, 2010 6

(b) person, organization or group of persons proposing the

nomination of any qualified person;

(3) The names of all applicants under subsection (2) shall be published
in the Gazette;

(4) The Public Service Commission shall, within seven days of the
expiry of the period prescribed under subsection (2), convene a
Committee comprising of one representative from the —

(a) Cabinet Office;

(b) Office of the Prime Minister;

(c) Ministry of Justice, National Cohesion and Constitutional

Affairs;

(d) State Law Office;

(e) Ministry of State for Public Service;

(f) Public Service Commission;

(g) Law Society of Kenya;

(h) Kenya National Commission on Human Rights and Equality; and

(i) Institute of Certified Public Accountants of Kenya;

for the purposes of considering the applications and short listing at least
three persons qualified for appointment as chairperson and eighteen
persons who qualify for appointment as members;

(5) The Public Service Commission shall within seven days forward the
shortlisted names of Chairperson and members of the Commission to the
President and the Prime Minister for nomination.

(6) The President in consultation with the Prime Minister shall nominate
within seven days a chairperson and eight other persons for appointment
as chairperson and members of the Commission respectively and
forward the same to the National Assembly;

(7) The National Assembly shall, within fourteen days consider all
nominations received under subsection (6) and approve or reject any
nomination;
 The Commission for the Implementation of the Constitution Bill, 2010 7

(8) Upon consideration and approval by the National Assembly, the

Speaker shall within seven days forward the names of approved persons
to the president for appointment;

(9) Where the National Assembly rejects any nomination, the Speaker
shall within three days communicate its decision to the President and the
Prime Minister to submit fresh nominations.

(10) Where a nominee is rejected by Parliament under subsection (7), the

President in consultation with the Prime Minister shall within seven
days, submit to the National Assembly a fresh nomination from amongst
the persons short listed and forwarded by the Public Service
Commission under subsection (5).

(11) Parliament shall reject all or any subsequent nominee submitted by

the President for approval under subsection (10) whereupon the
provisions of subsection (7) shall apply.

(12) The President shall, within seven days, by notice in the gazette,
appoint the chairperson and members approved and forwarded by the
National Assembly.

(13) In short listing, nominating or appointing persons as Chairperson

and members of the Commission, the short listing Committee,
Parliament and the President shall ensure that not more than two-thirds
of the members are of the same gender.

Chairperson. 9. (1) The Chairperson of the Commission shall be appointed by the

President in accordance with section 8.

(2) The chairperson shall, within seven days of the appointment of the
members, convene the first meeting of the Commission at which the
members shall elect the vice-chairperson of the Commission from
amongst the members.

(3) The chairperson shall—

(a) preside over all meetings of the Commission;

(b) be the spokesperson for the Commission; and

(c) supervise and direct the work of the Commission.

Tenure of office 10. The term of office of the chairperson or a member shall be from the
of chairperson date of appointment and shall, unless the office falls vacant earlier owing
and members.
 The Commission for the Implementation of the Constitution Bill, 2010 8

to any reason specified in the Constitution or section 11 of this Act,

terminate on the dissolution of the Commission.

10. A (Repealed by 3 of 2006) Commented [J16]: Note that this is only used when it comes to
ACTS not BILLS. An example of how you would repeal.

Vacancy. 11. (1) The office of the chairperson or a member shall become vacant if
the holder—

(a) dies;

(b) by a notice in writing addressed to the President resigns from

office;

(c) is convicted of an offence and sentenced to imprisonment;

(d) is unable to discharge the functions of his office by reason of

physical or mental infirmity; or

(e) is absent from three consecutive meetings of the Commission

without good cause;

(f) is declared bankrupt.

(2) The chairperson or a member may be removed from office for

misbehavior or misconduct incompatible with the functions of the
Commission.

(3) The President shall notify every resignation, vacancy or termination

in the Gazette within seven days.

Filling of 12. (1) Where a vacancy occurs in the membership of the Commission in
vacancy. accordance with section 11, the President shall nominate a member for
approval by the National Assembly in accordance with section 8.

(2) Notwithstanding the provisions of subsection (1), the President may

select a nominee from a list provided by the Public Service Commission
under section 8(5) for purposes of filling a vacancy.

(2) The member so appointed under subsection (1) shall serve for the
remainder of the term.

Disqualification 13. A person is disqualified from being elected to or holding any elective
from holding office under the Constitution at any time within the five years
elective office.
immediately preceding the date of election, if the person has served as a
chairperson or member of the Commission.
 The Commission for the Implementation of the Constitution Bill, 2010 9

Appointment of 14. (1) There shall be a Secretary of the Commission and whose term of
Secretary. office shall be from the date of appointment until dissolution of the
Commission unless the office falls vacant earlier owing to any reason
specified under subsection (5).

(2) The Secretary shall be the Chief executive officer of the Commission
and head of the Secretariat and shall be responsible to the Commission.

(3) The Secretary shall be appointed by the Commission through a

competitive recruitment process.

(4) The Secretary may be removed by the Commission only for—

(a) inability to perform the functions of his office arising out of

physical or mental incapacity;

(b) misbehavior or misconduct; or

(c) incompetence.

(5) Before the secretary is removed under subsection (4), he shall be

informed of the case against him and shall be given an opportunity to
defend himself against any allegations against him.

Oath of office. 15. The Chairperson, members and the Secretary shall each make and
subscribe before the Chief Justice the oath or affirmation set out in the
First Schedule.

Committees of 16. (1) The Commission may from time to time establish committees for
the Commission. the better carrying out of its functions.

(2) The Commission may co-opt into the membership of committees

established under subsection (1) other persons whose knowledge and
skills are found necessary for the functions of the Commission.

Procedure of the 17. (1) Subject to this section, the Commission shall regulate its own
Commission. procedure.

(2) The Commission shall hold such number of meetings in such places,
at such times and in such manner as the Commission shall consider
necessary for the discharge of its functions under the Constitution and
this Act.

(3) The quorum of the Commission shall be two-thirds of its members.

 The Commission for the Implementation of the Constitution Bill, 2010 10

Terms and 18. (1) The salaries and allowances payable to, and other terms and
conditions of conditions of service of the chairperson and the members shall be
service.
determined by the Commission in consultation with the Treasury, and
shall not be reviewed to the disadvantage of any member during the
member’s term of office.

(2) The salaries and allowances provided for under subsection (1) shall
be charged on the Consolidated Fund.

Appointment of 19. (1) The Commission may appoint such officers and other staff as are
Staff. necessary for the proper discharge of its functions under this Act, upon
such terms and conditions of service.

(2) The officers and other staff appointed under subsection (1) shall
serve on such terms and conditions as the Commission, in
consultation with the Commission and Treasury, may
determine.

(3) The government may, upon request by the Commission, second

to the Commission such number of public servants as may be
necessary for the purposes of the Commission.

(4) A public servant seconded to the Commission shall, during the

period of secondment, be considered an officer of the
Commission and shall be subject only to the direction and
control of the Commission.

The common 20. (1) The Common seal of the Commission shall be kept in such
seal of the custody as the Commission shall direct and shall not be used except on
Commission.
the order of the Commission.

(2) The common seal of the Commission when affixed to a document

and duly authenticated shall be judicially and officially noticed and
unless the contrary is proved, any necessary order or authorization of the
Commission under this section shall be presumed to have been duly
given.

Protection from 21. No matter or thing done by a member of the Commission or any
personal officer, employee or agent of the Commission shall, if the matter or
Liability.
thing is done in good faith foe executing the functions, powers or duties
of the Commission, render the member, officer, employee or agent
personally liable to any action, claim or demand whatsoever.

PART III — FINANCIAL PROVISIONS

 The Commission for the Implementation of the Constitution Bill, 2010 11

Funds of the 22. The funds of the Commission shall consist of—
Commission.
(a) monies provided by Parliament for the purposes of the
Commission;

(b) such monies or assets as may accrue to the Commission in the

course of the exercise of its powers or the performance of its
functions under this Act; and

(c) all monies from any other source provided, donated or lent to the
Commission.

Financial year. 23. The financial year of the Commission shall be the period of twelve
months beginning first July and ending on the thirtieth June in each year.

Annual 24. (1) Before the commencement of each financial year, the
estimates. Commission shall cause to be prepared estimates of the revenue and
expenditure of the Commission for that year.

(2) The annual estimates shall make provision for all the estimated
expenditure of the Commission for the financial year concerned and in
particular, shall provide for—

(a) The payment of the salaries, allowances and other charges in

respect of the staff of the Commission;

(b) The payment of pensions, gratuities and other charges and in

respect of benefits which are payable out of the funds of the
Commission;

(c) The maintenance of the buildings and grounds of the

Commission;

(d) The funding of training, research and development of activities

of the Commission;

(e) The creation of such funds to meet future or contingent liabilities

in respect of benefits, insurance or replacement of buildings or
installations, equipment and in respect of such other matters as
the Commission may think fit.

Accounts and 25. (1) The Commission shall cause to be kept all proper books and
audit records of account of the income, expenditure, assets and liabilities of
the Commission.

(2) Within a period of three months after the end of each financial year,
 The Commission for the Implementation of the Constitution Bill, 2010 12

the Commission shall submit to the Auditor-General the accounts of the

Commission in respect of that year together with a —

(a) statement of the income and expenditure of the Commission

during that year; and

(b) statement of the assets and liabilities of the Commission on the

last day of that financial year.

(3) The annual accounts of the Commission shall be prepared, audited

Act No. 12 of and reported upon in accordance with the provisions of the constitution
2003 and the Public Audit Act, 2003.

PART IV — MISCELLANEOUS PROVISIONS Commented [J17]: Okello says-3rd part of the bill, provision
deals with financial matters, offences, powers to make regulations,
search, seizure and arrest.
Progress report. 26. (1) The Commission shall prepare a progress report every six months Part of giving effect to the bill, not the main object but its important
for effecting that law.
and submit the report to the Parliamentary Select Committee and the
President.

(2) The progress report shall —

(a) state the progress in the implementation of the constitution;

(b) identify any impediments to the implementation of the

constitution;

(c) recommend any legal and administrative measures to address

specific concerns identified by the Commission; and

(d) state any other information relating to its function that the
Commission considers necessary.

(4) The Commission shall publish the report in the Gazette and in such
other manner as the Commission may determine.

Annual report. 27. (1) The Commission shall cause an annual report to be prepared for
each financial year.

(2) The Commission shall submit the annual report to the President and
Parliament within three months after the end of the year to which it
relates.

(3) The annual report shall contain, in respect of the year to which it
relates—
 The Commission for the Implementation of the Constitution Bill, 2010 13

(a) the financial statements of the Commission;

(b) a description of the activities of the Commission;

(c) such other statistical information as the Commission considers

appropriate relating to the implementation of the Constitution;

(d) any other information relating to its functions that the

Commission considers necessary.

(5) The Commission shall cause the annual report to be published in the
Gazette and in such other manner as the Commission may determine.

Duty to 28. A public officer, State Organ or State office shall at all times
cooperate. cooperate with the Commission in ensuring the successful
implementation of the Constitution and shall in particularly;

(a) respond to any inquiry made by the Commission;

(b) furnish the Commission with periodic reports as to the status of

implementation of the Constitution in respect of the question
raised;

(c) provide any other information that the Commission may

require in the performance of its functions under the
Constitution and any other written law.

Regulations. 29. The Commission may make regulations generally for the better
carrying into effect of the provisions of this Act.

Dissolution of 30. (1)The Commission shall stand dissolved five years after it is
the Commission. 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.

(2) Upon dissolution of the Commission under the Constitution and this
Act, this Act shall lapse.

(3) During the period prescribed in subsections (1) and (2), the
Commission shall ensure that its affairs are wound up in an orderly
manner and, in particular shall ensure that—

(a) those aspects of its work that will be of value to other

institutions are preserved, documented and transferred; and
The Commission for the Implementation of the Constitution Bill, 2010 14

(b) its files and records are preserved and transferred to the Kenya
National Archives and Documentation Service.

(4) Upon the dissolution of the Commission under subsections (1) and
(2), any assets and liabilities of the Commission, shall become assets and
liabilities of the Government.

(6) The terms of the Chairperson and members shall expire upon
dissolution of the Commission.

PART V—REPEAL, SAVINGS AND TRANSITIONAL

PROVISIONS Commented [J18]: This should deal with final provisions of the
bill, deal with savngs i.e. if you draft a law, you save what has been
done in the old regime and transit into the new provision-provides a
smooth cross over from the old regime.
e.g. New Kenyan Constitution, saved the President, Prime Minister
and V.P. office and will serve as such upto the elections.
FIRST SCHEDULE (S 14) This Part also deals with repeals and consequential amendments, a
bill must repeal expressely, if there are consequential amendments,
you provide them by a schedule.
OATH/AFFIRMATION OF THE OFFICE OF CHAIRPERSON/A Commented [J19]: Always state it as “First Schedule” not
MEMBER/SECRETARY Schedule One, followed by corresponding section.
Contains details, its made pursuant to a certain section.

1 …………………………………… having been appointed (the Commented [J20]: The short title under S.14 will be your
heading on the First Schedule.
chairperson/member of /Secretary to) the Commission for the
Implementation of the Constitution under the Commission for the
Implementation Commission Act, 2010, do solemnly (swear/ declare and
affirm) that I will at all times obey, respect and uphold this the
Constitution of Kenya and all other laws of the Republic; that I will
faithfully and fully, impartially and to the best of my ability, discharge
the trust and perform the functions and exercise the powers devolving
upon me by virtue of this appointment without fear, favour, bias,
affection, ill-will or prejudice. (SO HELP ME GOD).

Sworn/Declared by the said …………………………………………

Before me this ……………… Day of ………………………………

………………………
Chief Justice.
 The Commission for the Implementation of the Constitution Bill, 2010 15

MEMORANDUM OF OBJECTS AND REASONS

The main object of this Bill is to provide for the qualifications and appointment
procedure of chairperson and members of the Constitution Implementation Commission
established under the Sixth Schedule of the constitution. The Commission is established
primarily to oversee the implementation of the New Constitution of Kenya promulgated
on the 27th August 2010.

The Constitution establishes a purely presidential system of Government. In such models,

appointment to key offices originates from the Executive. Under Art 250 the role of
Parliament is to approve the person nominated by the Executive.

Part II provides for the powers and functions of the Commission as provided for under
the constitution. Clauses 7 provide for the qualification of the Chairperson and members
and require among other things that the chairperson be qualified to hold the office of
Supreme Court judge under the constitution.

Clauses 8 then provide for the procedure of appointment and require the President to
declare the vacancies at the Commission in the Gazette. Applicants can then forward their
applications through the Public Service Commission. The Public Service Commission
shall then convene a Committee to identify and shortlist persons qualified to hold the
position of chairperson and members respectively. The Committee shall forward the
names of the shortlisted person to the President who shall in consultation with the Prime
Minister nominate persons qualified for appointment and forward to the president for
approval. Upon approval by Parliament, the President shall appoint the chairpersons and
members respectively.

Clause 14 provides for the appointment of the Secretary to the Commission. It requires
that the Secretary be appointed competitively.
 The Commission for the Implementation of the Constitution Bill, 2010 16

Part III provides for the financial affairs of the Commission.

Part IV deals with miscellaneous matters. Clause 26 requires the Commission to make
its progress report every six months. The report is to be forwarded to the President and
the Parliamentary Committee that oversees the Implementation of the Constitution.
Clause 27 then provides for the preparation of annual reports. Clause 28 places a duty on
all public officers, State Organ or State office to cooperate with the Commission to
ensure that the Constitution is successfully implemented.

Dated 23rd August, 2010.