Mathew Ngugi
17 October 2005
column
Nairobi — Answers to nagging questions on the proposed Constitution that neither the politicians nor the technical experts are ready to give. Send your queries every week for a detailed, interactive response from our team of lawyers
Kenyans have been agitating for a people-driven Constitution, which demonstrates a desire to participate actively in formation of a legal order conducive to good governance. Wouldn't it be viable, therefore, for Kenyans to have a comparable influence in the formation of Acts of Parliament? How does the proposed Draft address this need?
Article 38(2) of the Draft, which allows women to inherit property, has the potential of causing serious conflicts within current social realities. For instance, would it be fair for a married woman to claim property belonging to her parents?
That the people of Kenya have the sole prerogative to define and influence the form and quality of governance to which they are subjected, is acknowledged in Article 1 of the proposed Draft, which states: "All sovereign authority belongs to the people of Kenya and may be exercised only in accordance with this Constitution."
Sovereignty has three elements, the power to create a frame of government (as may be expressed in a "people-driven" constitution-making process), the power to choose those to run the government and the powers involved in governing.
All these powers can be exercised either directly by the general populace or by representation. For instance, the right to choose those to run the government can be exercised by the people themselves (e.g. by voting in general elections) or by their representatives (e.g. through an electoral college, as is the case in the US).
The proposed Draft draws a distinction between those powers that are to be exercised directly, and those that are to be delegated to representatives; Article 1(2) states: "The people may exercise their sovereign authority either directly or through their democratically elected representatives."
This is elaborated by article 1(3), which states; "Authority is delegated to the following State organs, which shall perform their functions in accordance with this Constitution - (a) Parliament and the legislative structures in the district governments; (b) the national executive and the executive structures in the district governments; (c) the Judiciary and other independent tribunals; and (d) the constitutional commissions and State offices.
Parliament is given the mandate to form legislation in section 115 (1), which states that the legislative authority of the Republic is vested in Parliament. This leaves no room for the direct participation of the general masses in the enactment of statutes.
On whether making provision of such participation is a viable option, one may perhaps observe that the Constitutional Review process has so far taken several years and billions of shillings to conduct, all in a bid to facilitate as much direct participation as possible; If every single legislative enactment were to be subjected to a comparable process, the nation would most probably come to an inevitable standstill.
Your second question concerns the now controversial issue of women's inheritance as provided for in the Draft.
First, it must be observed that, as far as the right of women to inherit, have access to and manage property is concerned; the Draft Constitution does not seek to introduce anything new, but captures and reiterates an already existing state of affairs.
Under the present Constitution, the right to testamentary property (property passed from one person to another upon the death of the former) cannot be stopped by customary practices that inhibit women from inheriting. Section 82 of the Constitution prohibits discrimination based on gender.
Discriminatory cultural practices cannot be raised to challenge the decision of a testator (person who writes a will) to allocate property for a married daughter, or to influence the distribution of property amongst the children of a person who dies without making a Will.
Further, the Law of Succession Act includes mechanisms to ensure that when one dies without making a Will, the distribution of his or her property is conducted in such a manner as to make adequate provision for his or her dependants, regardless of their gender or marital status (sections 26-29, read together with section 3(2)).
In short, therefore, married women do have the right to inherit property, and Article 38 (2) of the proposed Draft does not introduce any novel developments as far as this right is concerned.
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