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3. This Constitution is the Constitution of the Republic of Kenya and shall have the force of law throughout Kenya and, subject to section 47, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.

CHAPTER II

THE EXECUTIVE

PART 1

The President and the Vice-President

The office of President.

4. There shall be a President of Kenya, who shall be the Head of State and Commander-in-Chief of the armed forces of the Republic.

Election of President.

7 of 1982,s.3.

12 of 1991,s.3,

6 of 1992,s.3.

5. (1) The President shall be elected in accordance with this Chapter and, subject thereto, with any Act of Parliament regulating the election of a President.

(2) A person shall be qualified to be nominated for election as President if, and shall not be so qualified unless, he-

(a) is a citizen of Kenya; and

(b) has attained the age of thirty-five years; and

(3) Whenever Parliament is dissolved, an election of a President shall be held at the ensuing general election, and at that election-

(a) each political party taking part in the general election shall nominate one candidate for President in such manner as may be prescribed by or under an Act of Parliament;

(b) the nomination of a candidate for President shall not be valid unless it is supported, in such manner as may be prescribed by or under an Act of Parliament, by not less than one thousand persons registered as voters in elections to the National Assembly;

(c) where only one candidate for President is validly nominated, and that candidate is elected as a member of the National Assembly, he shall be declared to be elected as President;

(d) where more than one candidate for President is validly nominated, a poll shall be taken in each constituency for the election of a President (whether or not a poll is required to be taken for an election to the National Assembly in that constituency);

(e) in every constituency in which a poll is required to be taken both for the election of a President and for the election of a member of the National Assembly separate polls shall be taken;

(f) the candidate for President who is elected as a member of the National Assembly and who receives a greater number of valid votes cast in the presidential election than any other candidate for President and who, in addition, receives a minimum of twenty-five per cent of the valid votes cast in at least five of the eight provinces shall be declared to be elected as President.

(4) A fresh election of a President shall be commenced and held in the manner prescribed by subsection (5) where-

(a) no candidate for President has been validly nominated before the expiration of the time for the delivery of nominations in a presidential election;

(b) a candidate for President who is validly nominated dies on or before any of the days on which the poll is taken in a presidential election;

(c) a candidate for President, who would but for his death have been entitled to be declared elected as President under this section, dies after the taking of the poll has begun in the presidential election and before he has been declared elected as President;

(d) no candidate is duly elected in accordance with this section:

Provided that where fresh election is held pursuant to paragraph (d) of this subsection, the only candidates shall be-

(i) the candidate who scored the highest number of votes at the election; and

(ii) one among the remaining candidates who has the highest total of votes cast at the election.

(5) In the election of a President otherwise that at a general election-

(a) every candidate for President shall be nominated by a political party in the manner prescribed by or under an Act of Parliament from amongst the elected members of the National Assembly.

(c) where only one candidate for President is validly nominated, a poll shall be taken in each constituency for the election of a President;

(d) where more than one candidate for President is validly nominated, a poll shall be taken in each constituency for the election of a President;

(e) the candidate for President who receives a greater number of valid votes cast in the presidential election than any other candidate and who, in addition, receives a minimum of twenty-five per cent of the votes cast in at least five of the eight provinces shall be declared to be elected as President.

Vacancy in office of President

6.(1) If the office of President becomes vacant by reason of the death or resignation of the President, or by reason of his ceasing to hold office by virtue of section 10 or section 12, an election of a President shall be held within the period of ninety days immediately following the occurrence of that vacancy, and shall be held in the manner prescribed by section 5 (5).

(2) While the office of President is vacant as aforesaid, the functions of that office shall be exercised-

(a) by the Vice-President; or

(b) if there is no Vice-President, or if the Vice-President considers that he is for any reason unable to discharge the functions of the office of President by virtue of this section or of section 11, he shall not act, except in accordance with resolution of the Cabinet, in the exercise of the powers relating to-

Cap. 57

(a) the preservation of public security under section 85, or under Part III of the Preservation of Public Security Act;

(b) the prorogation and dissolution of Parliament under subsections (1) and (3) of section 59;

(d) the assignment of responsibility to a Minister under section 18; or (e) the giving of consent to a Minister or Assistant Minister absenting himself from Kenya under section 20.

Assumption of office of President.

6 of 1992,s.4.

7. A person elected as President in accordance with this Constitution shall assume office as President as soon as he is declared to be elected and shall form the Government of the political party which nominated him as a candidate for President.

Oath of President.

8. A person assuming the office of President shall, before entering upon the office take and subscribe the oath of allegiance and such oath for the due execution of his office as may be prescribed by or under an Act of Parliament.

Term of office of President.

6 of 1992,s.5.

9.(1) The President shall hold office for a term of five years beginning from the date on which he is sworn in as President.

(2) No person shall be elected to hold office as President for more than two terms.

(3) The President shall, unless his office becomes vacant by reason of his death, his resignation or his ceasing to hold office by virtue of section 10 or section 12, continue in office until the person elected as President at a subsequent presidential election assumes office.

(4) The holding of the office of the President shall be incompatible with the holding of any office of profit or of the office in any professional or labour organisation and with any professional activity or any other public employment.

Determination of questions as to validity of presidential elections, etc.

10.(1) Subject to this section, section 44 shall apply to the hearing and determination of a question whether a person has been validly elected as President, as it applies to the hearing and determination of a question whether a person has been validly elected as a member of the National Assembly.

(2) Where a person applies to the High Court for the determination of more than one of the following questions, namely, whether the President was qualified to be nominated for election as President, or was validly elected as President, or was validly elected as a member of the National Assembly, he shall make one application only to the High Court.

(3) Where at any time the High Court determines under section 44 that the President has not been validly elected as a member of the National Assembly, or that the seat in the Assembly of the President has become vacant, the High Court shall declare the seat in the Assembly of the President to be vacant, and-

(a) an election shall be commenced forthwith and shall be held in the constituency for which the President stood for election as a member of the Assembly; and

(b) if the President is not elected as a member of the Assembly at that election, he shall cease to hold office as President upon the expiration of the time allowed by law for the making of an applicant to the High Court under section 44 in respect of that election or, where such an application is made by him or by the Attorney-General, upon the High Court determining that the person declared to be elected at that election has been validly elected:

Provided that- (i) if the High Court determines, in relation to an election held pursuant to paragraph (a) at which a person other than the President has been declared to be elected, that that person has not been validly elected, the High Court shall declare the seat to be vacant and a further election shall be held pursuant to paragraph (b) and this proviso shall apply accordingly; (ii) notwithstanding that his seat in the Assembly has been declared to be vacant, the President shall be entitled to sit as a member of the Assembly and to exercise all the powers and privileges of an elected member of the Assembly until he ceases to hold office of President .

(4) Where the High Court determines under section 44 that the President has not been validly elected as President for any reason other than that he has not been validly elected as a member of the National Assembly or that the seat in the Assembly of the President has become vacant, he shall cease to hold office as President.

Exercise of President's functions during absence, illness, etc.

11. Where the President intends to be absent from Kenya, or where he considers it desirable by reason of illness or any other cause to do so, he may in writing appoint the Vice-President to exercise, subject to section 6 (3) and subject to such restrictions or exceptions as he may specify, the functions of his office.

Removal of President on grounds of incapacity.

12.(1) Any question whether the President, or any other person exerting or about to exercise the functions of the office of President, is unable by reason of physical or mental infirmity to exercise the functions of that office, shall be determined, then-

(a) the Chief Justice shall appoint a tribunal, which shall consist of not less than five persons appointed by him from among persons who are qualified as medical practitioners under the law of Kenya, and who shall include any person nominated for appointment in accordance with subsection (5); and

(b) the tribunal shall inquire into the matter and make a report to the Chief Justice stating the opinion of the tribunal whether or not the person in respect of whom the question arises is, by reason of physical or mental infirmity, unable to discharge the functions of the office of President; and

(c) the Chief Justice shall certify accordingly under his hand and cause the certificate to be conveyed to the Speaker of the National Assembly:

Provided that the Chief Justice shall cause the question to be determined without a resolution of the Cabinet if he receives a certificate under the hand of the Speaker of the National Assembly to the effect that there are no Ministers present in Kenya, other than a person with respect to whom the question arises, and that the Speaker considers that it is in the interests of Kenya that the question should be determined without delay.

(3) Where the question is whether any person in respect of whom the Chief Justice has given a certificate in accordance with subsection (2) that he is unable to exercise the functions of the office of President, has ceased to be unable by reasons of physical or mental infirmity to exercise those functions, and the Chief Justice is requested, by resolution of the Cabinet conveyed to him by the Speaker of the National Assembly, or by request under the hand of the person in respect of whom such certificate was given conveyed to him by the Speaker of the Assembly, to cause that question to be determined, then the Chief Justice shall appoint a tribunal in accordance with subsection (2) (a), and that tribunal shall inquire into the matter and report in accordance with paragraph (b) of that subsection, and the Chief Justice shall certify accordingly under his hand and cause the certificate to be conveyed to the Speaker of the Assembly.

(4) Where the Speaker of the National Assembly has received a certificate of the Chief Justice pursuant to this section that the President is unable to discharge the functions of his office, and within the succeeding period of three months the Speaker has not received any certificate of the Chief Justice pursuant to this section that the President has ceased to be unable to discharge the functions of his office, the President shall cease to hold office upon the expiration of the said period.

(5) Where the Speaker conveys a resolution of the Cabinet to the Chief Justice under subsection (2) or (3), he shall forthwith notify the person in respect of whom the question arises, and that person may, by writing delivered to the Speaker within two days of his being so notified, nominate for appointment as members of the tribunal to be appointed by the Chief Justice under this section not more than two persons qualified to be so appointed.

(6) A certificate of the Chief Justice under this section shall be conclusive for the purpose of this Constitution, and shall not be questioned in the court.

(7) At any time when the office of Speaker of the National Assembly is vacant or the holder of that office is unable for any reason to exercise the functions vested in him by this section, those functions may be exercised by the Deputy Speaker of the Assembly.

Salary and allowances of President.

6 of 1992,s.6.

13.(1) The President shall receive such salary, allowance and benefits as may be determined by a resolution of the National Assembly.

(2) Where the President ceases to hold office he shall be entitled to receive a pension, gratuity and other allowances together with such other benefits and facilities, including adequate security, office staff and travel allowances, as may be prescribed by or under an Act of Parliament.

(3) The salary and allowances payable to the President and any pension or gratuity payable to him on retirement shall be a charge upon the Consolidated Fund.

(4) The salary, allowances and privileges of the President shall not be varied to his disadvantage while he holds office.

(5) The pension and allowances payable to the President who has ceased to hold office and the facilities and other benefits available to him shall not be varied to his disadvantage during his lifetime.

Protection of President in respect of legal proceedings during office.

14.(1) No criminal proceedings whatsoever shall be instituted or continued against the President while he holds office, or against any person while he is exercising the functions of the office of President.

(2) No civil proceedings in which relief is claimed in respect of anything done or omitted to be done shall be instituted or continued against the President while he holds office or against any person while he is exercising the functions of the office of President.

(3) Where provision is made by law limiting the time within which proceedings of any description may be brought against any person, a period of time during which a person holds no exercises the functions of the office of President shall not be taken into account in calculating any period of time prescribed by that law which determines whether any such proceedings as are mentioned in subsection (1) or (2) may be brought against the person.

The Vice- President of Kenya.

15.(1) There shall be a Vice-President of Kenya, who shall be appointed by the President.

(2) The President shall appoint the Vice-President from among the Ministers who are elected members of the National Assembly: Provided that no appointment to the office of Vice-President shall be made at any time when the function of the office of President are being exercised by any person other than the President.

(3) The Vice-President shall be the principal; assistant of the President in the discharge of his functions.

(4) The Vice-President shall not enter upon the duties of his office unless he has taken and subscribed the oath of allegiance and such oath for the due execution of his office as may be prescribed by Parliament.

(5) During his tenure of office, the Vice-President shall not hold any office of profit other than those of Vice-President, Minister and member of the National Assembly.

(6) The office of the Vice-President shall become vacant-

(a) if the President so directs; or

(b) if the holder of the office cease to be an elected member of the National Assembly otherwise than by reason of the dissolution of Parliament; or

PART 2

Ministers and the Cabinet

Ministers of Government of Kenya.

16.(1) There shall be such offices of Minister of the Government of Kenya as may be established by Parliament or, subject to any provisions made by Parliament, by the President.

The President shall appoint the Ministers from among the members of the National Assembly:

Provided that, if occasion arises for making an appointment to the office of any Minister while Parliament stands dissolved, a person who was a member of the National Assembly immediately before the dissolution may be appointed to that office.

(3) The office of a Minister shall become vacant-

(a) if the President so directs; or

(b) if the holder of the office ceases to be a member of the National Assembly otherwise than by reason of the dissolution of Parliament; or

(c) in the case of a Minister who, immediately before the dissolution of Parliament, was a member of the National Assembly, if, when the Assembly first meets after that dissolution, he is not then a member thereof.

(4) Whenever a person is elected to the office of President, the offices of all Ministers then holding office shall become vacant upon the occasion of the President first making one or more appointments to the office of Minister.

Cabinet.

17.(1) There shall be a Cabinet consisting of the President, the Vice-President and the other Ministers.

(2) The function of the Cabinet shall be to aid and advise the President in the government of Kenya.

(3) The Cabinet shall be collectively responsible to the National Assembly for all things done by or under the authority of the President or the Vice-President or any other Minister in the execution of his office.

(4) The provisions of subsections (2) and (3) shall not apply in relation to-

(a) the appointment and removal from office of the Vice-President, Ministers and Assistant Ministers under sections 15, 16 and 19, the assignment of responsibility to any Minster under section 18, or the giving of consent under section 20 to the Vice-President, a Minister or an Assistant Minister absenting himself from Kenya:

(b) the dissolution of Parliament; or

Allocation of portfolios to Ministers.

18. Responsibility for any of the business of the government of Kenya, including the administration of any of the departments of Government, may be assigned to the Vice-President and the several Ministers as the President may, by directions in writing, determine.

Assistant Ministers.

19.(1) The President may appoint Assistant Ministers from among the members of the National Assembly to assist the President, Vice-President and Ministers in the performance of their duties:

Provided that, if occasion arises for making an appointment while Parliament stands dissolved, a person who was a member of the National Assembly immediately before the dissolution may be appointed as an Assistant Minister.

(2) The office of an Assistant Minister shall become vacant-

(a) if the President so directs; or

(b) if the holder of the office ceases to be a member of the National Assembly otherwise than by reasons of the dissolution of Parliament; or

(c) in the case of an Assembly Minister who, immediately before the dissolution of Parliament, was a member of the National Assembly, if when the Assembly first meets after that dissolution, he is not then a member thereof; or

(d) upon the election of a person to the office of President.

Absence of Vice-President, Ministers and Assistant Ministers from Kenya.

20. The Vice-President, a Minister or an Assistant Minister shall not absent himself from Kenya except with the consent of the President.

Oaths to be taken by Ministers and Assistant Ministers.

21. A Minister or an Assistant Minister shall not enter upon the duties of his office unless he has taken and subscribed the oath of allegiance and such oath for the due execution of his office as may be prescribed by Parliament.

Appointment of permanent secretaries.

14 of 1986,s.2.

22.(1) The President may appoint such number of permanent secretaries as he may determine.

(2) There shall be a permanent secretary to the Office of the President.

(3) Where the Vice-President or any other Minister has been charged with responsibility for a department of Government he shall exercise general direction and control over that department of Government shall be under the super-vision of a permanent secretary.

(4) The office of a permanent secretary shall be an office in the public service.

(5) Two or more Government departments may be placed under the direct supervision of an permanent secretary and a Government department may be placed under the supervision of one of one or more permanent secretaries or two or more permanent secretaries.

PART 3

Executive Powers

Executive authority of Government of Kenya.

23.(1) The executive authority of the Government of Kenya shall vest in the President and, subject to this Constitution, may be exercised by him either directly or through officers subordinate to him.

(2) Nothing in this section shall prevent Parliament from conferring functions on persons or authorities other than the President.

Constitution of offices.

24. Subject to this Constitution and any other law, the powers of constituting and abolishing offices for the Republic of Kenya, of making appointments to any such office and terminating any such appointment, shall vest in the President.

Tenure of office in the service of the Republic.

25.(1) Save in so far as may be otherwise provided by this Constitution or by any other law, every person who holds office in the service of the Republic of Kenya shall hold that office during the pleasure of the President:

Provided that this subsection shall not apply in the case of a person who enters into a contract of service in writing with the Government of Kenya by which he undertakes to serve the Government for a period which does not exceed three years.

(2) In this section "office in the service of the Republic of Kenya" means office in or membership of the public service, the armed forces of the Republic, the National Youth Service or any other force or service established for the Republic of Kenya.

Attorney- General.

26.(1) There shall be an Attorney-General whose office shall be an office in the public service.

(2) The Attorney-General shall be the principal legal adviser to the Government of Kenya.

(3) The Attorney-General shall have power in any case in which he considers it desirable so to do-

(a) to 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 by that person;

(b) to take over and continue any such criminal proceedings that have been instituted or undertaken by another person or authority; and

(c) to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by himself or another person or authority.

(4) The Attorney-General may require the Commissioner of Police to investigate any matter which, in the Attorney-General's opinion, relates to any offence or alleged offence or suspected offence, and the Commissioner shall comply with that requirement and shall report to the Attorney-General upon the investigation.

(5) The powers of the Attorney-General under subsection (3) and (4) may be exercised by him in person or by officers subordinate to him acting in accordance with his general or special instructions.

(6) The powers conferred on the Attorney-General by paragraphs (b) and (c) of subsection (3) shall be vested in him to the exclusion of any other person or authority:

Provided that where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority and with the leave of the court.

(7) For the purposes of this section, an appeal from a judgement in criminal proceedings before any court, or a question of law reserved for the purpose of those proceedings to any other court, shall be deemed to be part of those proceedings:

Provided that the power conferred on the Attorney General by subsection (3) (c) shall not be exercised in relation to an appeal by a person convicted in criminal proceedings or to a question of law reserved at the instance of such a person.

(8) In the exercise of the functions vested in him by subsections (3) and (4) of this section and by sections 44 and 55, the Attorney-General shall not be subject to the direction or control of any other person or authority.

Prerogative of mercy. 14 of 1975,s.2.

27. The President may-

(a) grant to a person convicted of an offence a pardon, either free or subject to lawful conditions;; (b) grant to a person a respite, either indefinite or for a specified period, of the execution of a punishment imposed on that person for an offence;; (c) substitute a less severe form of punishment for a punishment imposed on a person for an offence;; (d) remit the whole or part of a punishment imposed on a person for an offence or a penalty or forfeiture otherwise due to the Republic on account of an offence; and
Cap. 7.: (e) remove in whole or in part the non-qualification or the disqualification of a person, arising out of or in consequence of the report of an election court under the provisions of the National Assembly and Presidential Elections Act, from registration as an elector on a register of electors or from nomination for election as an elected member of the National Assembly.

Advisory Committee on Prerogative of Mercy.

28.(1) There shall be an Advisory Committee on the Prerogative of Mercy which shall consist of-

(a) the Attorney-General; and

(b) not less than three nor more than five other members appointed by the President, of whom at least one shall be a Minister and at least one shall be a person qualified to practice in Kenya as medical practitioner.

(2) A member of the Committee appointed under subsection (1) (b) shall hold his seat thereon for such period as may be specified in the instrument by which he was appointed:

Provided that his seat shall become vacant-

(i) in the case of a person who at the date of his appointed was a Minister, if he ceases to be a Minister; or

(ii) in any case, if the President in writing so directs.

(3) The Committee may act notwithstanding a vacancy in its membership and its proceedings shall not be invalidated by the presence or participation of a person not entitled to be present at or to participate in its proceedings.

(4) The Committee may regulate its own procedure.

Functions of Advisory Committee on Prerogative of Mercy.

29.(1) Where a person has been sentenced to death (otherwise than a court-martial) for an offence, the President shall cause a written report of the case from the trial judge, go together with such other information derived from the record of the case or elsewhere as he may require, to be considered at a meeting of the Advisory Committee on the Prerogative of Mercy; and after obtaining the advice of the Committee he shall decide in his own judgement whether to exercise any of his functions under section 27.

(2) The President may consult with the Committee before deciding whether to exercise any of his functions under section 27 in a case not falling within subsection (1), but he shall not be obliged to act in accordance with the advice of the Committee.

CHAPTER III

PARLIAMENT

PART 1

Composition of Parliament

Legislative power.

30. The legislative power of the Republic shall vest to in the Parliament of Kenya, which shall consist of the President and the National Assembly.

Composition of National Assembly.

31. Subject to this Constitution, the National Assembly shall consist of elected members elected in accordance with section 32, nominated members appointed in accordance with section 33 and the ex officio members.

Election of elected members.

6 of 1992,s.7.

32.(1) Kenya shall be divided into constituencies in accordance with section 42, and each constituency shall elect one elected member to the National Assembly in such manner as, subject to this Constitution, may be prescribed by or under any law.

(2) Every person who is registered in a constituency as a voter in elections of elected members shall, unless he is detained in lawful custody, or is disqualified by law from voting in those elections on the ground of his having been convicted of an offence connected with elections or on the ground of his having been reported guilty of such an offence by the court trying an election petition, be entitled so to vote in that constituency in accordance with the law; and no other person may so vote.

(3) (Repealed by 6 of 1992,s.7.).

Nominated members.

33. There shall be twelve nominated members of the National Assembly who shall be appointed by the President from amongst persons, who, if duly nominated, would be qualified to be elected as members of the Assembly.

Qualifications for election.

1 of 1979,s.2,

7 of 1982,s.5,

12 of 1991,s.4.

34. Subject to section 35, a person shall be qualified to be elected as a member of the National Assembly if, and shall not be qualified unless, at the date of his nomination for election-

(a) he is a citizen of Kenya who has attained the age of twenty-one years; and

(b) he is registered in some constituency as a voter in elections to the National Assembly; and

(c) he is able to speak and, unless incapacitated by blindness or other physical cause, to read the Swahili and English languages well enough to take an active part in the proceedings of the National Assembly; and

(b) he is nominated by a political party in the manner prescribed by or under an Act of Parliament.

Disqualifications for election.

5 of 1979,s.2.

35.(1) Subject to any order made under subsections (6), a person shall not be qualified to be elected as an elected member, if, at the date of his nomination for election, he-

(a) is, by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign state; or

(b) is under sentence of death imposed on him by a court in Kenya, or is under sentence of imprisonment (by whatever name called) exceeding six months imposed on him by such a court or substituted by competent authority for some other sentence imposed on him on such a court; or

(d) is an undischarged bankrupt, having been adjudged bankrupt under any law in force in Kenya; or

(c) subject to such exceptions and limitations as may be prscribed by Parliament, has an interest in a class or description of contract made with the Government of Kenya as may be proscribed by Parliament; or

(d) holds or is acting in any office in the public service (including the office of judge or member of a court or law or an office to which section 69 applies), in the armed forces of the Republic or in a local government authority.

(2) For the purpose of subsection (1) (b)-

(a) two or more sentences of imprisonment that are required to be served consecutively shall be regarded as separate sentences if none of those sentences exceeds six months, and if any of those sentences exceeds that term they shall be regarded as one sentence; and

(b) no account shall be taken of a sentence of imprisonment imposed as an alternative to or in default of the payment of a time.

(3) Parliament may provide that a person who, at the date of his nomination for election, holds or is acting in an office that is prescribed by Parliament and the functions of which involve responsibility for or in connexion with the conduct of an election to the National Assembly or the compilation of a register of voters for the purpose of such an election shall not be qualified to be elected as a member of the National Assembly.

(4) Parliament may provide that a person who is convicted by a court of an office that is prescribed by Parliament and that is connected with the election of members of the National Assembly or of a local government authority, or who is reported guilty of such an offence by the court trying an election as a member of the National Assembly for such period (not exceeding five years) following his conviction or, as the case may be, following the report of the court as may be so prescribed.

(5) Parliament may provide that a particular office shall be deemed to be or not to be an office for the purpose of subsection (1) (f).

(6) The Minister for the time being responsible for elections to the National Assembly may, by order published in the Kenya Gazette, provide that a person shall not be qualified to be elected by virtue of holding an office specified in paragraph (f) of subsection (1), or specified for the purposes of that paragraph under subsection (5), which is prescribed in the order, if he holds that office after a date prescribed in the order, which date shall not be more than six months prior to the date of nomination for preliminary elections prescribed under an Act of Parliament:

Provided that no order under this subsection shall be made to operate with retrospective effect.

Attorney- General to be member of National Assembly.

36. The Attorney-General shall be an ex officio member of the National Assembly, but he shall not be entitled to vote on any question before the Assembly.

Speaker of National Assembly.

37.(1) There shall be a Speaker of the National Assembly, who shall be elected by the Assembly, in accordance with the standing orders, from among persons who are members of the Assembly or are qualified to be elected as such members, other than the President, the Vice-President, Ministers, Assistant Ministers and the Attorney-General.

(2) The Speaker shall vacate his office-

(a) when the National Assembly first meets after a dissolution of Parliament; or

(b)if circumstances arise that, if he were not Speaker, would disqualify him to be elected as such; or

(c)if the National Assembly so resolves, by resolution supported by the votes of not less than seventy-five per cent of all its members (excluding the ex officio members).

(3) No business shall be transacted in the National Assembly (other than an election of the Speaker) at any time when the office of Speaker is vacant, but this subsection shall not prevent the transaction of business by a committee of the Assembly.

(4) The Speaker shall be an ex officio member of the National Assembly, whether or not he is elected from among the members of the Assembly.

Deputy Speaker of National Assembly.

38.(1) There shall be a Deputy Speaker of the National Assembly, who shall be elected by the Assembly, in accordance with its standing orders, from among persons who are members of the Assembly other than the President, the Vice-President, Ministers, Assistant Ministers and the Attorney-General.

(2) The National Assembly shall elect a Deputy Speaker-

(a) subject to section 37 (3), when it first meets after a dissolution of Parliament; and

(b) when it first meets after the office of Deputy Speaker has become vacant otherwise than by reason of the dissolution of Parliament, or as soon thereafter as may be convenient.

(3) The Deputy Speaker shall vacate his office-

(a) when the National Assembly first meets after a dissolution of Parliament; or

(b) if he is elected as President or becomes the Vice-President, or a Minister or an Assistant Minister; or

(d) if the National Assembly so resolves, by resolution supported by the votes of not less than seventy-five per cent of all its members (excluding the ex officio members).

Vacation of seat in National Assembly.

7 of 1982,s.6,

12 of 1991,s.5.

39.(1) A member of the National Assembly shall vacate his seat if-

(a) he has ceased to be a citizen of Kenya;

(b) (Deleted 12 of 1991,s.5.).

(c) circumstances arise that, if he were not a member of the Assembly, would cause him to be disqualified by section 35 (1) or by any law made in pursuance of section 35(3) or (4) to be elected as a member; or

(d) without having obtained the permission of the Speaker, he has failed to attend the Assembly on eight consecutive days on which the Assembly was sitting in any session:

Provided that the President may in any case if he thinks fit direct that a member shall not vacate his seat by reason of his failure so to attend the Assembly.

(2) An elected member or a nomination member of the National Assembly shall vacate his seat as such if he is elected as Speaker.

(3) In order to permit a member of the National Assembly who has been sentenced to death or imprisonment, adjudged to be of unsound mind, adjudged bankrupt or convicted or reported guilty of an offence prescribed under section 35 (4) to appeal against the decision in accordance with the law, Parliament may provide that, subject to such conditions as it may prescribe, the decision shall not have effect for the purposes of this section until such time as it may prescribe.

(4) This section shall not apply to the Attorney-General.

Vacation of seat in National Assembly upon resignation from party.

12 of 1991,s.6.

40. A member of the National Assembly who, having stood at his election as an elected member with the support of or as a supporter of a political party, or having accepted appointment as a nominated member as a supporter of a political party, either-

(a) resigns from that party at a time when that party is a parliamentary party; or

(b) having, after the dissolution of that party, been a member of another parliamentary party, resigns from that other party at a time when that other party is a parliamentary party, shall vacate his seat forthwith unless in the meantime that party of which he was last a member has ceased to exist as a parliamentary party or he has resigned his seat:

Provided that this subsection shall not apply to any member who is elected as Speaker.

Electoral Commission.

17 of 1990,s.2.

41.(1) There shall be an Electoral Commission, which shall consist of a chairman and not less than four other members appointed by the President.

(2) The Commission shall elect a vice-chairman from among its members.

(3) A person shall not be qualified to be appointed a member of the Commission if he is a member of the National Assembly or if he holds or is acting in any office in the public service or in the armed forces of the Republic.

(4) Subject to this section, the office of a member of the Commission shall become vacant-

(a) at the expiration of five years from the date of his appointment; or

(b) if circumstances arise that, if he were not a member of the Commission, would cause him to be disqualified to be appointed as such.

(5) A member of the Commission may be removed from office only for inability to exercise the functions of his office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour, and shall not be so removed except in accordance with this section.

(6) A member of the Commission shall be removed from office by the President if the question of his removal from office has been referred to a tribunal appointed under subsection (7) and the tribunal has recommended to the President that he ought to be removed from office for inability as aforesaid or for misbehaviour.

(7) If the President considers that the question of removing a member of the Commission under this section ought to be investigated, then-

(a) the President shall appoint a tribunal, which shall consist of a chairman and four other members selected by the President from among persons-

(i) who hold or have held the office of judge of the High Court of appeal;

(ii) who are qualified to be appointed as judges of the High Court under section 61 (3); or

(iii) upon whom the President has conferred the rank of Senior Counsel under section 17 of the Advocate Act, 1989, and

No. 18 of 1989.

(b) the tribunal shall inquire into the matter and report on the facts thereof to the President and recommended to him whether the member ought to be removed.

(8) If the question of removing a member of the Commission has been referred to a tribunal under this section, the President may suspend that member from the exercise of the functions of his office, and any such suspension may at any time be revoked by the President, and shall in any case cease to have effect if the tribunal recommends to the President that that member should not be removed.

(9) In the exercise of its functions under this Constitution and the Commission shall not be subject to the direction of any other person or authority.

(10) The Commission may, by rules or otherwise regulate its own procedure and, with the consent of the President , may confer powers or impose duties on any public officer or authority for the purpose of the discharge of its functions.

(11) The Commission may, subject to its rules of procedure, act notwithstanding a vacancy in its membership or the absence of a member, and its proceedings shall not be invalidated by the presence or participation of a person not entitled to be present at or to participate in those proceedings:

Provided that any decision of the Commission shall require the concurrence of a majority of all its members.

Constituencies.

14 of 1986,s.3,

10 of 1991,s.2.

42.(1) Subject to this section, Kenya shall be divided into such number of constituencies having such boundaries and names as may be prescribed by order made by the Electoral Commission.

(2) Parliament may prescribe the minimum number of constituencies into which Kenya shall be divided (which shall not be less than 188) or the maximum number of constituencies (which shall exceed the minimum number by at least twenty), and until Parliament has so prescribed the minimum number of constituencies shall be 188 and the maximum shall be 210.

(3) All constituencies shall contain as nearly equal numbers of inhabitants as appears to the Commission to be reasonably practicable, but the Commission may depart from this principle to the extent that it considers expedient in order to take account of-

(a) the density of population, and in particular the need to ensure adequate representation of urban and sparsely-populated rural areas;

(b) population of communication;

(d) geographical features;

(e) community of interest; and

(f) the boundaries of existing administrative areas,

and, for the purpose of this subsection, the number of inhabitants of any part of Kenya shall be ascertained by reference to the latest census of the population held in pursuance of any law.

(4) At intervals of not less than eight and not more than ten years, and whenever directed by Act of Parliament, the Commission shall review the number, the boundaries and the names of the constituencies into which Kenya is divided, and may by order, alter the number, the boundaries or the names, subject to and in accordance with this section, to the extent that it considers desirable in the light of the review.

(5) Whenever a census of the population has been held in pursuance of any law, or whenever a variation has been made in the boundary of an existing administrative area, the Commission may carry out a review and make an alteration to the extent which it considers desirable in consequence of that census or variation.

(6) Every order made by the Commission under this section shall be published in the Kenya Gazette and shall come into effect upon the next dissolution of Parliament after it is made.

Conduct of elections.

6 of 1992,s.8.

42A. The Electoral Commission shall be responsible for-

(a) the registration of voters and the maintenance and revision of the register of voters;

(b) directing and supervising the Presidential, National Assembly and local government elections; and

Qualifications and disqualifications for registration as a voter.

2 of 1974,s.2.

43.(1) Subject to subsection (2), a person shall be qualified to be registered as a voter in elections to the National Assembly and in elections of a President if, and shall not be qualified unless, at the date of his application to be registered, he-

(a) is a citizen of Kenya who has attained the age of eighteen years; and

(b) has been ordinarily resident in Kenya either-

(i) for a period of not less than one year immediately preceding that date, or

(ii) for a period of, or periods amounting in the aggregate to, not less than four years in the eight years immediately preceding that date; and

(c) has, for a period of, or periods amounting in the aggregate to, not less than five months in the twelve months immediately preceding that date, been ordinarily resident in the constituency in which he applies to be registered, or has for such a period or periods carried on business there, or has for such a period or periods lawfully possessed land or residential buildings there.

(2) No person shall be qualified to be registered as a voter in elections to which this section applies-

(a) if, under any law in force in Kenya, he is adjudged or otherwise declared to be of unsound mind; or

(b) if he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt, under a law in force in Kenya; or

(d) if he is disqualified therefrom by Act of Parliament on the grounds of his having been convicted of an offence connected with elections or on the grounds of having been reported guilty of the offence by the court trying an election petition.

(3) A question whether a person is qualified to be registered as a voter in elections to which this section applies shall be determined in such manner as may be prescribed by Parliament.

(4) Where a person is qualified to be registered in more than one place as a voter in elections to which this section applies, he shall be so registered only in the first of those places in which he applies to be so registered, and Parliament may provide for the punishment of a person who, being already registered in one place as a voter in the elections or having applied to be so registered there and not having had that application finally rejected, applies to be registered in another place as a voter.

(5) Parliament may, in order to permit a person who has been adjudged or declared to be of unsound mind, adjudged or declared bankrupt or convicted of an offence referred to in subsection (2) (d) to appeal against the decision in accordance with any law, provide that, subject to such conditions as may be prescribed by Parliament, the decision shall not have effect for the purposes of subsection (2) until such time as may be so prescribed.

Determination of questions as to membership of National Assembly.

7 of 1984,s.2.

44.(1) The High Court shall have jurisdiction to hear and determine any question whether-

(a) a person has been validly elected as a member of the National Assembly; or

(b) the seat in the National Assembly of a member thereof has become vacant.

(2) An application to the High Court for the determination of a question under subsection (1) (a) may be made by any person who was entitled to vote in the election to which the application relates, or by the Attorney-General.

(3) An application to the High Court for the determination of a question under subsection (1) (b) may be made-

(a) where the Speaker has declared that the seat in the National Assembly of a member has by reason of a provision of this Constitution become vacant, by that member; or

(b) in any other case, by a person who is registered as a voter in elections of elected members of the Assembly, or by the Attorney-General.

(4) Parliament may make provision with respect to-

(a) the circumstances and manner in which, the time within which and the conditions upon which an application may be made to the High Court for the determination of a question under this section;; and

(b) the powers, practice and procedure of the High Court in relation to the application.

(5) The determination by the High Court of any question under this section, whether the decision be interlocutory or final, shall not be subject to appeal.

Clerk of National Assembly and staff.

45.(1) There shall be a Clerk of the National Assembly.

(2) The offices of the Clerk of the National Assembly and of the members of his staff shall be offices in the public service.

PART 2

Legislation and Procedure in the National Assembly

Exercise of legislative power of Parliament.

6 of 1992,s.9.

46.(1) Subject to this Constitution, the legislative power of Parliament shall be exercisable by Bills passed by the National Assembly.

(2) When a Bill has been passed by the National Assembly, it shall be presented to the President for his assent.

(3) The President shall, within twenty-one days after the Bill has been presented to him for assent under subsection (2), signify to the Speaker that he assents to the Bill or refuses to assent to the Bill.

(4) Where the President refuses to assent to a Bill he shall, within fourteen days of the refusal, submit a memorandum to the Speaker indicating the specific provision of the Bill which in his opinion should be reconsidered by the National Assembly including his recommendations for amendments.

(5) The National Assembly shall reconsider a Bill referred to it by the President taking into account the comments of the President and shall either-

(a) approved the recommendations proposed by the President with or without amendment and resubmit the Bill to the President for assent; or

(b) refuse to accept the recommendations and approve and the Bill in its original form by a resolution in that behalf of all the Members of the National Assembly (excluding ex officio members) in which case the President shall assent to the Bill within fourteen days of the passing of the resolution.

(6) A law made by Parliament shall not come into operation until it has been published in the Kenya Gazette, but Parliament may postpone the coming into operation of a law and, subject to section 77, may make laws with retrospective effect.

(7) A law made by Parliament shall be styled an Act of Parliament, and the words of enactment shall be "Enacted by the Parliament of Kenya".

Alteration of Constitution.

47.(1) Subject to this section, Parliament may alter this Constitution.

(2) A Bill for an Act of Parliament to alter this Constitution shall not be passed by the National Assembly unless it has been supported on the second and third readings by the votes of not less than sixty-five per cent of all the members of the Assembly (excluding the ex officio members).

(3) If, on the taking of a voter for the purposes of subsection (2), the Bill is supported by a majority of the members of the Assembly voting but not the number of votes required by that subsection, and the Bill is not opposed by thirty-five per cent of all the members of the Assembly or more, then, subject to such limitations and conditions as may be prescribed b the standing orders of the Assembly, a further vote may be taken.

(4) When a Bill for an Act of Parliament to alter this Constitution has been introduced into the National Assembly, no alterations shall be made in it before it is presented to the President for his assent, except alterations which are certified by the Speaker to be necessary because of the time that has elapsed since the Bill was first introduced into the Assembly.

(5) A certificate of the Speaker under subsection (4) shall be conclusive as regards proceedings in the Assembly, and shall not be questioned in any court.

(6) In this section-

(a) references to this Constitution are references to this Constitution as from time to time amended; and

(b) references to the alteration of this Constitution are references to the amendment, modification or re-enactment, with or without amendment or modification, of any provision of this Constitution, the suspension or repeal of that provision and the making of a different provision in the place of that provision.

Restrictions with regard to certain financial measures.

48. Except upon the recommendation of the President signified by a Minister, the National Assembly shall not-

(a) proceed upon a Bill (including an amendment to a Bill) that, in the opinion of the person presiding, makes provision for any of the following purposes-

(i) the imposition of taxation or the alteration of taxation otherwise than by reduction; or

(ii) the imposition of a charge on the Consolidated Fund or any other fund of the Government of Kenya or the alteration of any such charge otherwise than by reduction; or

(iii) the payment, issue or withdrawal from the Consolidated Fund or any other fund of the Government of Kenya of moneys not charged upon the fund or an increase in the amount of the payment, issue or withdrawal; or

(iv) the composition or remission of a debt due to the Government of Kenya; or

(b) proceed upon a motion (including an amendment to a motion) the effect of which, in the opinion of the person presiding, would be to make provision for any of those purposes.

Oaths to be taken by members of National Assembly.

49.(1) Every member of the National Assembly shall, before taking his seat in the Assembly, take and subscribe the oath of allegiance before the Assembly, but a member may before taking and subscribing that oath take part in the election of the Speaker of the Assembly.

(2) A person elected as Speaker of the National Assembly who has not before his election as Speaker taken the oath as a member of the Assembly shall, before entering upon the duties of his office, take and subscribe the oath of allegiance before the Assembly.

Presiding in National Assembly.

50. There shall preside at any sitting of the National Assembly-

(a) the Speaker; or

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

(c) in the absence of the Speaker and the Deputy Speaker, such members of the Assembly (not being the President, the Vice-President, a Minister or an Assistant Minister) as the Assembly may elect for that purpose.

Quorum in National Assembly.

51. If any member of the National Assembly who is present takes objection that less than thirty members of the Assembly (besides the person presiding) are present in the Assembly and, after such interval as may be prescribed in the standing orders of the Assembly, the person presiding ascertains that there are still less than thirty members of the Assembly present, the person presiding shall thereupon adjourn the Assembly.

Powers of President in Parliament.

52. The President shall be entitled-

(a) in the exercise of his functions as Head of State, to address the National Assembly at any time he thinks fit to do so; and

(b) in the exercise of his functions as Head of the Government and as a member of the National Assembly, to attend all meetings of the Assembly and to take part in all proceedings thereof, and to vote on any question before the Assembly.

Official languages.

1 of 1975,s.3,

1 of 1979,s.3.

53.(1) Subject to this section, the official languages of the National Assembly shall be Swahili and English and the business of the National Assembly may be conducted in either or both languages.

(2) Every Bill (including the memorandum accompanying a Bill), every Act of Parliament whenever enacted, all other actual or proposed legislation under the authority of an Act of Parliament, all financial resolutions and documents relating thereto, and ever actual or proposed amendment of any of the foregoing, shall be written in English.

(3) In all proceedings of the National Assembly which involves the discussion of any of the following matters, that is to say, a Bill (including the memorandum accompanying a Bill), an Act of Parliament, other legislation whether actual or proposed, a financial resolution or document relating thereto, or an actual or proposed amendment thereof, the wording of the matter shall, as occasion requires, be quoted in English.

Voting in National Assembly.

54.(1) Except as otherwise provided in this Constitution, any question proposed for decision in the National Assembly shall be determined be a majority of the votes of the members present and voting.

(2) On a question proposed for decision in the National Assembly, the person presiding in the Assembly shall-

(a) if he is the Speaker, have a casting vote but not an original vote; or

(b) if he is not the Speaker, have both an original vote and a casting vote.

(3) The standing orders of the National Assembly may make provision under which a member who votes upon a question in which he has a direct pecuniary interest shall be deemed not to have voted.

Unqualified persons sitting or voting.

55. A person who sits or votes in the National Assembly knowing or having reasonable grounds for knowing that he is not entitled to do so shall be liable to a penalty not exceeding five hundred shillings, or such other sum as may be prescribed by Parliament, for such day on which he so sits or votes, and that penalty shall be recoverable by action in the High Court at the suit of the Attorney-General.

Regulation of Procedure in National Assembly.

56.(1) Subject to this Constitution, the National Assembly may-

(a) make standing orders regulating the procedure of the Assembly (including in particular orders for the orderly conduct of proceedings);

(b) subject to standing orders made under paragraph (a), establish committees in such manner and for such general or special purposes as it thinks fit, and regulate the procedure or any committee so established.

(2) Subject to this Constitution, the National Assembly may act notwithstanding a vacancy in its membership (including a vacancy not filled with the Assembly first meets after a general election), and the presence or participation of a person not entitled to be present at or to participate in the proceedings of the Assembly shall not invalidate those proceedings.

Powers, privileges and immunities of National Assembly.

57. Without prejudice to the power conferred by section 56, Parliament may, for the purpose of the orderly and effective discharge of the business of the National Assembly, provide for the powers, privileges and immunities of the Assembly and its committees and members.

PART 3

Summoning, Prorogation and Dissolution of Parliament

Summoning of Parliament.

58.(1) Subject to this section, each session of Parliament shall be held at such place within Kenya and shall commence at such time as the President may appoint.

(2) There shall be a session of Parliament at least once in every year, so that a period of twelve months shall not intervene between the last sitting of the National Assembly in one session and the first sitting thereof in the next session.

(3) Whenever Parliament is dissolved, a general election of members of the National Assembly shall be held, and the first session of the new Parliament shall commence within three months after that dissolution.

(4) Subject to this section, the sittings of the National Assembly in a session of Parliament shall be held at such time and on such days as may be determined in accordance with the standing orders of the Assembly.

Prorogation and dissolution of Parliament.

59.(1) The President may at any time prorogue Parliament.

(2) The President may at any time dissolve Parliament.

(3) If the National Assembly passes a resolution which is Assembly (excluding the ex officio members), and of which not less than seven days' notice has been given in accordance with the standing orders of the Assembly, declaring that it has no confidence in the Government of Kenya, and the President does not within three days of the passing of that resolution either resign from his office or dissolve Parliament, Parliament shall stand dissolve on the fourth day following the day on which that resolution was passed.

(4) Parliament, unless sooner dissolved, shall continue for five years from the date when the National Assembly first meets after dissolution and shall then stand dissolved.

(5) At any time when Kenya is at war, Parliament may from time to time provide for the extension of the period of five years specified in subsection (4) for not more than twelve months at a time:

Provided that the life of Parliament shall not be extended under this subsection by more than five years.

CHAPTER IV

THE JUDICATURE

PART 1

The High Court and the Court of Appeal

Establishment of High Court.

60.(1) There shall be a High Court, which shall be a superior court of record, and which shall have unlimited original jurisdiction in civil and criminal matters and such other jurisdiction and powers as may be conferred on it by this Constitution or any other law.

(2) The judges of the High Court shall be the Chief Justice and such number, not being less than eleven, of other judges (hereinafter referred to as puisne judges) as may be prescribed by Parliament.

(3) The High Court shall be duly constituted notwithstanding a vacancy in the office of a judge of that Court.

(4) The office of a puisne judge shall not be abolished which there is a substantive holder thereof.

(5) The High Court shall sit at such places as the Chief Justice may appoint.

Appointment of judges of High Court.

4 of 1988,s.2,

17 of 1990,s.3.

61.(1) The Chief Justice shall be appointed by the President.

(2) The puisne judges shall be appointed by the President acting in accordance with the advice of the Judicial Service Commission.

(3) A person shall not be qualified to be appointed a judge of the High Court unless-

(a) he is, or has been, a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or in the Republic of Ireland or a court having jurisdiction in appeals from such a court; or

(b) he is an advocate of Kenya of not less than seven years standing; or

(c) he holds, and has held for a period of, or for periods amounting in the aggregate to, not less than seven years, one or other of the qualifications specified in paragraphs (a), (b), (c) and (d) of section 12 (1) of the Advocates Act as in force on 12th December, 1963.

Cap.16(1986).

(4) If the office of Chief Justice is vacant, or if the Chief Justice is for any reason unable to discharge the functions of his office, the President may appoint a puisne judge to act as the functions of that office until a person is appointed to and assumes the functions of that office, or until the Chief Justice resumes those functions, as the case may be, or until his appointment is sooner revoked by the President.

(5) If the office of an puisne judge is vacant, or if a puisne judge is appointed to act as Chief Justice or is for any reason unable to discharge the functions of his office, or if the Chief Justice advises the President that the state of business in the High Court so requires, the President, acting in accordance with the advice of the Judicial Service Commission, may appoint a person who is qualified to be appointed a judge of the High Court to act as a puisne judge; and a person ;may act as a puisne judge notwithstanding that he has attained the age prescribed for the purposes of section 62 (1).

(6) A person appointed under subsection (5) to act as a puisne judge shall, subject to subsections (4) and (7) of section 62, continue to act for the period of his appointment or, if no period is specified, until his appointment is revoked by the President, acting in accordance with the advice of the Judicial Service Commission, and may continue to act thereafter for so long as may be necessary to enable him to deliver judgement or to do any other thing in relation to proceedings that have already been commenced before him.

Tenure of office of judges of High Court.

4 of 1988,s.3.

17 of 1990,s.4.

62.(1) Subject to this section, a judge of the High Court shall vacate his office when he attains such age as may be prescribed by Parliament.

(2) Notwithstanding that he has attained the age prescribed for the purposes of subsection (1), a judge of the High Court may continue in office for so long after attaining that age as may be necessary to enable him to deliver judgement or to do any other thing in relation to proceedings that were commenced before him before he attained that age.

(3) A judge of the High Court may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour, and shall not be removed except in accordance with this section.

(4) A judge of the High Court shall be removed from office by the President if the question of his removal has been referred to a tribunal appointed under subsection (5) and the tribunal has recommended to the President that the judge ought to be removed from office for inability as aforesaid or for misbehaviour.

(5) If the Chief Justice represents to the President that the question of removing a puisne judge under this section ought to be investigated, then-

(a) the President shall appoint a tribunal which shall consist of a chairman and four other members selected by the President from among persons-

(i) who hold or have held the office of judge of the High Court or judge of appeal; or

(ii) who are qualified to be appointed as judges of the High Court under section 61 (3); or

(iii) upon whom the President has conferred the rank of Senior Counsel under section 17 of the Advocates Act, 1989; and

No.18 of 1989

(b) the tribunal shall inquire into the matter and report on the facts thereof to the President and recommend to the President whether that judge ought to be removed under this section.

(6) Where the question of removing a judge from office has been referred to a tribunal under this section, the President, acting in accordance with the advice of the Chief Justice, may suspend the judge from exercising the functions of his office and any such suspension may at any time be revoked by the President, acting in accordance with the advice of Chief Justice, and shall in any case cease to have effect if the tribunal recommended to the President that the judge ought not to be removed from office.

(7) Where the question arises as whether the Chief Justice has become unable by reason of physical or mental infirmity to exercise the functions of his office or that his conduct ought to be investigated, then the President shall appoint a tribunal consisting of five members appointed by him in the manner provided under subsection (8).

(8) The tribunal appointed under subsection (7) shall consist of the following members-

(a) a person who holds or has held the office of Speaker of the National Assembly who shall be the chairman;

(b) two persons who hold or have held office as judges of appeal;

(c) one person upon whom the rank of Senior Counsel has been conferred by the President under section 17 of the Advocates Act, 1989; and

(d) the chairman of the Public Service Commission.

(9) When the question of removing the Chief Justice has been referred to a tribunal under this section he shall not exercise any of the functions of his office pending the decision tribunal recommends to the President that the Chief Justice ought not be removed from office.

Oaths to be taken by judges of High Court.

63. A judge of the High Court shall not enter upon the duties of his office until he has taken and subscribed the oath of allegiance and such oath for the due execution of his office as may be prescribed by Parliament.

Establishment of Court of Appeal.

13 of 1977,s.2,

7 of 1984,s,3.

64.(1) There shall be a Court of Appeal which shall be a superior court of record, and which shall have such jurisdiction and powers in relation to appeals from the High Court as may be conferred on it by law.

(2) The judges of the Court of Appeal shall be the Chief Justice and such number, not being less than two, of other judges (herein referred to as judges of appeal) as may be prescribed by Parliament.

(3) The foregoing provisions of this Part shall apply in respect of the judges of appeal as they apply to puisne judges.

(4) Where a puisne judge has been appointed as a judge of appeal he may continue to exercise the functions of a puisne judge to enable him to complete proceedings in the High Court that were commenced before him prior to his being so appointed.

PART 2

Other Courts

Establishment of other courts.

65.(1) Parliament may establish courts subordinate to the High Court and courts-martial, and a court so established shall, subject to this Constitution, have such jurisdiction and powers as may be this Constitution, have such jurisdiction and powers as may be conferred on it by any law.

(2) The High Court shall have jurisdiction to supervise any civil or criminal proceedings before a subordinate court or court-martial, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by those courts.

(3) The Chief Justice may make rules with respect to the practice and procedure of the High Court in relation to the jurisdiction and powers conferred on it by subsection (2).

Kadhis courts.

66.(1) There shall be a Chief Kadhi and such number, not being less than three, of other Kadhis as may be prescribed by or 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-

(a) he professes the Muslim religion; and

(b) he possesses such knowledge of the Muslim law applicable to any sect or sects of Muslims as qualifies him, in the opinion of the Judicial Service Commission, to hold a Kadhi's court.

(3) Without prejudice to section 65 (1), there shall be such subordinate courts held by Kadhis as Parliament may establish and each Kadhi's court shall, subject to this Constitution, have such jurisdiction and powers as may be conferred on it by any law.

(4) The Chief Kadhi and the other Kadhis, or the Chief Kadhi and such of the other Kadhis (not being less than three in number) as may be prescribed by or under an Act of Parliament, shall each be empowered to hold a Kadhi's court having jurisdiction within the former Protectorate or within such part of the former Protectorate as may be so prescribed:

Provided that no part of the former Protectorate shall be outside the jurisdiction of some Kadhi's court.

(5) The jurisdiction of a Kadhi's court shall extend 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.

Reference and appeals on interpretation of Constitution.

67.(1) Where a question as to the interpretation of this Constitution arises in proceedings in a subordinate court and the court is of the opinion that the question involves a substantial question of law, the court may, and shall if a party to the proceedings so requests, refer the question to the High Court.

(2) Where a question is referred to the High Court in pursuance of subsection (1), the High Court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with the decision.

(3) When the High Court is determining a matter in connexion with a reference to it under subsection (1) (other than an interlocutory matter) it shall be composed of an uneven number of judges, not being less than three.

(4) Where a subordinate court or a court-martial has given a final decision in civil or criminal proceedings on a question as to the interpretation of this Constitution, and the question has not already been referred to the High Court under subsection (1) of this section or under section 84 (3), an appeal shall lie against that against that decision as of right to the High Court, either-

(a) direct; or

(b) if-

(i) an appeal lies as of right from the decision to another subordinate court or court-martial; or

(ii) an appeal lies from the decision to another subordinate court or court- martial with the leave of the court that gave the decision or of some other court, and that leave has not been withheld,

by way of that other subordinate court or court-martial.

PART 3

The Judicial Service Commission

Judicial Service Commission.

68.(1) There shall be a Judicial Service Commission which shall consist of-

(a) the Chief Justice as chairman;

(b) the Attorney-General;

(c) two persons who are for the time being designated by the President from among the puisne judge of the High Court and the judges of the Court of Appeal; and

(d) the chairman of the Public Service Commission.

(2) In the exercise of its functions under this Constitution, the Commission shall not be subject to the direction of control of any other person or authority.

(3) Subject to this Chapter, the Commission may make regulations regulating its own procedure and, with the consent of the President, may confer powers or impose duties on any public officer or authority for the purpose of the discharge of its functions.

(4) Subject to any regulations made under subsection (3), the Commission may act notwithstanding a vacancy in its membership or the absence of a member, and its proceedings shall not be invalidated by the presence or participation of a person not entitled to be present at or to participate in those proceedings:

Provided that a decision of the Commission shall require the concurrence of a majority of all the members thereof.

Appointment, etc., of judicial officers

4 of 1988,s.4.

69.(1) The power to appoint persons to hold or act in an office to which this section applies (including the power to confirm appointments), the power to exercise disciplinary control over persons holding or acting in those offices and the power to remove those persons from office shall vest in the Judicial Service Commission.

(2) The Judicial Service Commission may, by directions in writing and subject to such conditions as it thinks fit, delegate any of its powers under subsection (1) to any one or more of its members or to any judge of the High Court or to any person holding or acting in an office to which this section applies:

Provided that a power that relates to an office the holder of which is required to possess legal qualifications may not be delegated under this subsection except to one or more members of the Commission.

(3) The offices to which this section applies are-

(a) the office of Registrar or Deputy Registrar of the High Court;

(b) the office of the Chief Magistrate, the Principal Magistrate, the Senior Resident Magistrate, Resident Magistrate or District Magistrate;

(c) the office of any other person empowered to hold or be a member of a subordinate court exercising criminal jurisdiction;

(d) the office of Chief Kadhi and Kadhi; and

(e) such other offices of member of any court or connected with any court as may be prescribed by Parliament.

CHAPTER V

PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOM OF THE INDIVIDUAL

Fundamental rights and freedoms of the individual.

70. Whereas every person in Kenya is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, tribe, place of origin or residence or other local connexion, political opinions, colour, creed or sex, but subject to respect for the rights and freedom of others and for the public interest, to each and all of the following, namely-

(a) life, liberty, security of the person and the protection of the law;

(b) freedom of conscience, of expression and of assembly and association; and

the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of those rights and freedoms of others or the public interest.

Protection of right of life.

71.(1) No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Kenya of which he has been convicted.

(2) Without prejudice to any liability for a contravention of any other law with respect to the use of force in those cases hereinafter mentioned, a person shall not be regarded as having been deprived of his life in contravention of his section if he dies as the result of the use of force to an extent as is reasonably justifiable in the circumstances of the case-

(a) for the defence of any person from violence or for the defence of property;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(d) in order to prevent the commission by that person of a criminal offence; or if he dies as the result of a lawful act of war.

Protection of right to personal liberty.

4 of 1988,s.5.

72.(1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases-

(a) in execution of the sentence or order of a court, whether established for Kenya or some other country, in respect of a criminal offence of which he has been convicted;

(b) in execution of the order of the High Court or the Court of Appeal punishing him for contempt of that court or of another court or tribunal;

(d) for the purpose of bringing him before a court in execution of the order of a court;

(e) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law of Kenya;

(f) in the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare;

(g) for the purpose of preventing the spread of an infectious or contagious disease;

(h) in the case of a person who is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of his care or treatment or the protection of the community;

(i) for the purpose of preventing the unlawful entry of that person into Kenya, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Kenya or for the purpose of restricting that person while he is being conveyed through Kenya in the course of his extradition or removal as a convicted prisoner from one country to another; or

(j) to such extent as may be necessary in the execution of a lawful order requiring that person to remain within a specified area within Kenya or prohibiting him from being within such an area, or to such extent as may be reasonably justifiable for the taking of proceedings against that person relating to the making of any such order, or to such extent as may be reasonably justifiable for restraining that person during a visit that he is permitted to make to a part of Kenya in which, in consequence of the order, his presence would otherwise be unlawful.

(2) A person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that he understands, of the reason for his arrest or detention.

(3) A person who is arrested or detained-

(a) for the purpose of bringing him before a court in execution of the order of a court; or

(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence,

and who is not released, shall be brought before a court as soon as is reasonably practicable, and where he is not brought before a court within twenty-four hours of his arrest or from a commencement of his detention where he is arrested or detained upon reasonable suspicion of his having committed or about to commit an offence punishable by death, the burden of proving that the person arrested or detained has been brought before a court as soon as is reasonably practicable shall rest upon any person alleging that the provisions of this subsection have been complied with.

(4) Where a person is brought before a court in execution of the order of a court in any proceedings or upon suspicion of his having committed or being about to commit an offence, he shall not be thereafter further held in custody in connexion with those proceedings or that offence save upon the order of a court.

(5) If a person arrested or detained as mentioned in subsection (3) (b) is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.

(6) A person who is unlawfully arrested or detained by another person shall be entitled to compensation therefor from that other person.

Protection from slavery and forced labour.

73.(1) No person shall be held in slavery or servitude.

(2) No person shall be required to perform forced labour.

(3) For the purposes of his section "forced labour" does not include-

(a) labour required in consequence of the sentence or order of a court;

(b) labour required of a person while he is lawfully detained that, though not required in consequence of the sentence or order of a court, is reasonably necessary in the interests of hygiene or for the maintenance of the place at which he is detained;

(c) labour required of a member of a disciplined force in pursuance of his duties as such or, in the case of a person who has conscientious objections to service as a member of an armed force, labour that that person is required by law to perform in place of such service;

(d) labour required during a period when Kenya is at war or an order under section 85 is in force or in the event of any other emergency or calamity that threatens the life or well-being of the community, to the extent that the requiring of the labour is reasonably justifiable, in the circumstances of a situation arising or existing during that period or as a result of that other emergency or calamity, for the purpose of dealing with that situation; or

(e) labour reasonably required as part of reasonable and normal communal or other civic obligations.

Protection from inhuman treatment.

74.(1) No person shall be subject to torture or to inhuman or degrading punishment or other treatment.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the infliction of any description of punishment that was lawful in Kenya on 11th December, 1963.

Protection from deprivation of property.

13 of 1977,s.3.

75.(1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where the following conditions are satisfied-

(a) the taking of possession or acquisition is necessary in the interests of defence, public safety, public order, public morality, public health, town and country planning or the development or utilisation of property so as to promote the public benefit; and

(b) the necessity therefor is such as to afford reasonable justification for the causing of hardship that may result to any person having an interest in or right over the property; and

(c) provision is made by a law applicable to that taking of possession or acquisition for the prompt payment of full compensation

(2) Every person having an interest or right in or over property which is compulsory taken possession of or whose interest in or right over any property in compulsorily acquired shall have a right of direct access to the High Court for-

(a) the determination of his interest or right, the legality of the taking of possession or acquisition of the property, interest or right, and the amount of any compensation to which he is entitled; and

(b) the purpose of obtaining prompt payment of that compensation:

Provided that if Parliament so provides in relation to a matter referred to in paragraph (a) the right of access shall be by way of appeal (exercisable as of right at the instance of the person having the right or interest in the property) from a tribunal or authority, other than the High Court, having jurisdiction under any law to determine that matter.

(3) The Chief Justice may make rules with respect to the practice and procedure of the High Court or any other tribunal or authority in relation to the jurisdiction conferred on the High Court by subsection (2) or exercisable by the other tribunal or authority for the purposes of that subsection (including rules with respect to the time within which applications or appeals to the High Court or application to other tribunal or authority may be brought).

(4) and (5) (Deleted by 13 of 1977, s. 3.)

(6) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) or (2)-

(a) to the extent that the law in question makes provision for the taking of possession or acquisition of property-

(i) in satisfaction of any tax, duty, rate, excise or other impost;

(ii) by way of penalty for breach of the law, whether under civil process or after conviction of a criminal offence under the law of Kenya;

(iii) as an incident of a lease, tenancy, mortgage charge, bill of sale, pledge or contract;

(iv) in the execution of judgements or orders of a court in proceedings for the determination of civil rights or obligations;

(v) in the circumstances where it is reasonably necessary so to do because the property is in a dangerous state or injurious to the health of human beings, animals or plants;

(vi) in consequence of any law with respect to the limitation of actions; or

(vii) for so long only as may be necessary for the purposes of an examination, investigation, trial or inquiry or, in the case of land, for the purposes of the carrying out thereon of work of soil conservation or the conservation of other natural resources or work relating to agricultural development or improvement (being work relating to the development or improvement that the owner or occupier of the land has been required, and has without reasonable excuse refused or failed, to carry out),

and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society; or

(b) to the extent that the law in question makes provision for the taking of possession or acquisition of-

(i) enemy property;

(ii) property of a deceased person, a person of unsound mind or a person who was not attained the age of eighteen years, for the purpose of its administration for the benefit of the persons entitled to the beneficial interest therein;

(iii) property of a person adjudged bankrupt or a body corporate in liquidation, for the purpose of its administration for the benefit of the creditors of the bankrupt or body corporate and, subject thereto, for the benefit of other persons entitled to be the beneficial interest in the property; or

(iv) property subject to a trust, for the purpose of vesting the property in persons appointed as trustees under the instrument creating the trust purpose of giving effect to the trust.

(7) Nothing contained in or done under the authority of an Act of Parliament shall be held to be inconsistent with or in contravention of this section to the extent that the Act in question makes provision for the compulsory taking possession in or right over property where that property, interest or right is vested in a body corporate, established by law for public purposes, in which no moneys have been invested other than moneys provided by Parliament.

Protection against arbitrary search or entry.

76.(1) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.

(2) Nothing contained in or done under the authority of any law shall be held to be inconstant with or in contravention of this section to the extent that the law in question makes provision-

(a) that is reasonably required in the interests of defence, public safety, public order, public morality, public health, town and country planning, the development and utilisation of mineral resources, or the development or utilisation of any other property in such a manner as to promote the public benefit;

(b) that is reasonably required for the purpose of promoting the rights or freedoms of other persons;

(c) that authorises an officer or agent of the Government of Kenya, or of a local government authority, or of a body corporate established by law for public order to inspect those premises or anything thereon to carry out work connected with property that is lawfully on those premises and that belongs to that Government, authority or body corporate, as the case may be; or

(d) that authorises, for the purpose of enforcing the judgement or order of a court in civil proceedings, the entry upon premises by order of a court.

and except so far as that provision or, as the case may be, anything done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

Provisions to secure protection of law.

77.(1) If a person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court establishment by law.

(2) Every person who is charged with a criminal offence-

(a) shall be presumed to be innocent until he is proved or has pleaded guilty;

(b) shall be informed as soon as reasonably practicable, in a language that he understands and in detain, of the nature of the offence charged;

(a) shall be permitted to defend himself before the court in person or by a legal representative of his own choice;

(b) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution; and

(c) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge,

and except with his own consent the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence.

(3) When a person is tried for a criminal offence, the accused person or a person authorised by him in that behalf shall, if he so requires and subject to payment of such reasonable fee as may be prescribed by law, be given within a reasonable time after judgement a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court.

(4) No person shall be held to be guilty of a criminal offence on account of an act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for a criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.

(5) No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial of that offence of which he could have been convicted at the trial of that offence, save upon the order of a superior court in the court of appeal or review proceedings relating to the conviction or acquittal.

(6) No person shall be tried for a criminal offence if he shows that he has been pardoned for that offence.

(7) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.

(8) No person shall be convicted of a criminal offence unless that offence is defined, and the penalty therefor is prescribed, in a written law:

Provided that nothing in this subsection shall prevent a court from punishing a person for contempt notwithstanding that the act or omission constituting the contempt is not defined in a written law and the penalty therefor is not so prescribed.

(9) A court or other adjudicating authority prescribed by law for the determination of the existence or extent of a civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by a person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.

(10) Except with agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other adjudicating authority, including the announcement of the decision of the court or other authority, shall be held in public.

(11) Nothing in subsection (10) shall prevent the court or other adjudicating authority from excluding from the proceedings persons other than the parties thereto and their legal representatives to such extent as the court or other authority-

(a) may by law be empowered to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice or in interlocutory proceedings or in the interests of public morality, the welfare of persons under the age of eighteen years or the protection of the private lives of persons concerned in the proceedings; or

(b) may by law be empowered or required to do in the interests of defence, public safety or public order.

(12) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of-

(a) subsection (2) (a) to the extent that the law in question imposes upon a person charged with a criminal offence the burden of proving particular facts;

(b) subsection (2) (e) to the extent that the law in question imposes conditions that must be satisfied if witnesses called to testify on behalf of an accused person are to be paid their expenses out of public funds; or

(c) subsection (5) to the extent that the law in question authorises a court to try a member of a disciplined force for a criminal offence notwithstanding a trial and conviction or acquittal of that member under the disciplinary law of that force, so, however, that a court so trying such a member under the disciplinary law of that force, so, however, that a court so tr

Constitution......

LAWS OF KENYA

The Constitution of Kenya Revised Edition 1992 (1987) Printed and Published by the Government Printer Nairobi THE CONSTITUTION OF KENYA ARRANGMENT OF SECTIONS CHAPTER I - THE REPUBLIC OF KENYA

CHAPTER II - THE EXECUTIVE

CHAPTER III - PARLIAMENT

CHAPTER IV - THE JUDICATURE

CHAPTER V- PROTECTION OF FUNDAMENTAL, RIGHTS AND FREEDOMS OF THE INDIVIDUAL

CHAPTER VI - CITIZENSHIP

CHAPTER VII - FINANCE

CHAPTER VIII - THE PUBLIC SERVICE

CHAPTER IX - TRUST LAND

CHAPTER X - GENERAL

CHAPTER XI-TRANSITORY

THE CONTITUTION OF KENYA

CHAPTER 1

THE REPUBLIC OF KENYA

CHAPTER II

THE EXECUTIVE

The Constitution of Kenya
Revised Edition 1992 (1987)
Printed and Published by the Government Printer
Nairobi
THE CONSTITUTION OF KENYA ARRANGMENT OF SECTIONS
CHAPTER I - THE REPUBLIC OF KENYA