Transitional and consequential provisions

SIXTH SCHEDULE

TRANSITIONAL AND CONSEQUENTIAL PROVISIONS

Article 262

Part 1 – GENERAL

1. Interpretation

In this Schedule, unless the context requires otherwise—

1. "Boundaries Commission" means Interim Independent Boundaries Commission;
2. "Electoral Commission" means Interim Independent Electoral Commission;
3. "former Constitution" means the Constitution in force before this Constitution came into force.

2. Suspension of provisions of this Constitution

1. The following provisions of this Constitution are suspended until the final announcement of all the results of the first elections for Parliament under this Constitution—
   1. Chapter Seven, except that the provisions of the Chapter shall apply to the first general elections under this Constitution;
   2. Chapter Eight, except that the provisions of the Chapter relating to the election of the National Assembly and the Senate shall apply to the first general elections under this Constitution; and
   3. Articles 129 to 155 of Chapter Nine, except that the provisions of the Chapter relating to the election of the President shall apply to the first general elections under this Constitution.
2. The provisions of this Constitution relating to devolved government, including Article 187, are suspended until the date of the first elections for county assemblies and governors held under this Constitution.
3. Despite subsection (2)—
   1. elections for county assemblies and governors shall be held in accordance with Articles 177 and 180 of this Constitution; and
   2. the laws relating to devolved government, required by this Schedule and Chapters Eleven and Twelve of this Constitution, shall be enacted within the period stipulated in the Fifth Schedule.
4. Article 62(2) and (3) is suspended until the National Land Commission is established.

3. Extension of application of provisions of the former constitution

1. Until Parliament passes the Act anticipated in Articles 15 and 18, section 93 of the former Constitution continues to apply.
2. Sections 30 to 40, 43 to 46 and 48 to 58 of the former Constitution, the provisions of the former Constitution concerning the executive, and the National Accord and Reconciliation Act, 2008 (No. 4 of 2008) shall continue to operate until the first general elections held under this Constitution, but the provisions of this Constitution concerning the system of elections, eligibility for election and the electoral process shall apply to that election.
3. Until the National Police Service Commission referred to in Article 246 is established, section 108(2) of the former Constitution applies to appointments, discipline and the removal of persons from office in the National Police Service.

4. Parliamentary Select Committee

There shall be a select committee of the National Assembly to be known as the Constitutional Implementation Oversight Committee which shall be responsible for overseeing the implementation of this Constitution and which, among other things—

1. shall receive regular reports from the Commission on the Implementation of the Constitution on the implementation of this Constitution including reports concerning—
   1. the preparation of the legislation required by this Constitution and any challenges in that regard;
   2. the process of establishing the new commissions;
   3. the process of establishing the infrastructure necessary for the proper operation of each county including progress on locating offices and assemblies and establishment and transfers of staff;
   4. the devolution of powers and functions to the counties under the legislation contemplated in section 15 of this Schedule; and
   5. any impediments to the process of implementing this Constitution;
2. coordinate with the Attorney-General, the Commission on the Implementation of the Constitution and relevant parliamentary committees to ensure the timely introduction and passage of the legislation required by this Constitution; and
3. take appropriate action on the reports including addressing any problems in the implementation of this Constitution.

5. Commission for the Implementation of the Constitution

1. There is established the Commission for the Implementation of the Constitution.
2. The Commission consists of—
   1. a chairperson; and
   2. eight other members.
3. The members of the Commission shall—
   1. include persons with experience in public administration, human rights and government; and
   2. not include any person who served as a member of the Committee of Experts appointed under the Constitution of Kenya Review Act, 2008.
4. Articles 248 to 254 apply to the Commission.
5. After the Commission on Revenue Allocation has been established, the Commission for the Implementation of the Constitution shall send a notice of its meetings to that Commission, and a member of the Commission on Revenue Allocation shall be permitted to attend and participate in any such meeting, but shall not vote.
6. The functions of the Commission shall be to—
   1. monitor, facilitate and oversee the development of legislation and administrative procedures required to implement this Constitution;
   2. co-ordinate with the Attorney-General and the Kenya Law Reform Commission in preparing, for tabling in Parliament, the legislation required to implement this Constitution;
   3. report regularly to the Constitutional Implementation Oversight Committee on—
      1. progress in the implementation of this Constitution; and
      2. any impediments to its implementation; and
   4. work with each constitutional commission to ensure that the letter and spirit of this Constitution is respected.
7. The Commission for the Implementation of the Constitution shall stand dissolved five years after it is established or at the full implementation of this Constitution as determined by Parliament, whichever is sooner, but the National Assembly may, by resolution, extend its life.

Part 2 – EXISTING OBLIGATIONS, LAWS AND RIGHTS

6. Rights, duties and obligations of the State

Except to the extent that this Constitution expressly provides to the contrary, all rights and obligations, however arising, of the Government or the Republic and subsisting immediately before the effective date shall continue as rights and obligations of the national government or the Republic under this Constitution.

7. Existing laws

1. All laws in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.
2. If, with respect to any particular matter—
   1. a law that was in effect immediately before the effective date assigns responsibility for that matter to a particular State organ or public officer; and
   2. a provision of this Constitution that is in effect assigns responsibility for that matter to a different State organ or public officer,
   the provisions of this Constitution prevail to the extent of the conflict.

8. Existing land holdings and agreements relating to natural resources

1. On the effective date, any freehold interest in land in Kenya held by a person who is not a citizen shall revert to the Republic of Kenya to be held on behalf of the people of Kenya, and the State shall grant to the person a ninety-nine year lease at a peppercorn rent.
2. On the effective date, any other interest in land in Kenya greater than a ninety-nine year lease held by a person who is not a citizen shall be converted to a ninety-nine year lease.
3. The provisions of Article 71 shall not take effect until the legislation contemplated under that Article is enacted.

Part 3 – NATIONAL GOVERNMENT

9. Elections and by-elections

1. The first elections for the President, the National Assembly, the Senate, county assemblies and county governors under this Constitution shall be held at the same time, within sixty days after the dissolution of the National Assembly at the end of its term.
2. Despite subsection (1), if the coalition established under the National Accord is dissolved and general elections are held before 2012, elections for the first county assemblies and governors shall be held during 2012.

10. National Assembly

The National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of this Constitution for its unexpired term.

11. The Senate

1. Until the first Senate has been elected under this Constitution—
   1. the functions of the Senate shall be exercised by the National Assembly; and
   2. any function or power that is required to be performed or exercised by both Houses, acting jointly or one after the other, shall be performed or exercised by the National Assembly.
2. Any function or power of the Senate shall, if performed or exercised by the National Assembly before the date contemplated in subsection (1), be deemed to have been duly performed or exercised by the Senate.

12. The Executive

1. The persons occupying the offices of President and Prime Minister immediately before the effective date shall continue to serve as President and Prime Minister respectively, in accordance with the former Constitution and the National Accord and Reconciliation Act, 2008 until the first general elections held under this Constitution, unless they vacate office in terms of the former Constitution and the Accord.
2. The persons occupying the offices of Vice-President and Deputy Prime Minister or holding a position in the Cabinet or as an Assistant Minister immediately before the effective date shall continue to serve in accordance with the former Constitution until the first general elections held under this Constitution unless they vacate or are removed from office in accordance with the former Constitution and the National Accord and Reconciliation Act, 2008.
3. A person who was elected President before the effective date is not eligible to stand for election as President under this Constitution.

13. Oath of allegiance to this Constitution

On the effective date, the President and any State officer or other person who had, before the effective date, taken and subscribed an oath or affirmation of office under the former Constitution, or who is required to take and subscribe an oath or affirmation of office under this Constitution, shall take and subscribe the appropriate oath or affirmation under this Constitution.

Part 4 – DEVOLVED GOVERNMENT

14. Operation of provisions relating to devolved government

1. The laws referred to in section 2(3)(b) and section 15 may be enacted only after the Commission on the Implementation of the Constitution and, if it has been established, the Commission on Revenue Allocation, have been consulted and any recommendations of the Commissions have been considered by Parliament.
2. The Commissions shall be given at least thirty days to consider legislation under subsection (1).
3. Subsections (1) and (2) lapse when the Commission on the Implementation of the Constitution is dissolved.

15. Provision for devolution of functions to be made by Act of Parliament

1. Parliament shall, by legislation, make provision for the phased transfer, over a period of not more than three years from the date of the first election of county assemblies, from the national government to county governments of the functions assigned to them under Article 185.
2. The legislation referred to in subsection (1) shall—
   1. provide for the way in which the national government shall—
      1. facilitate the devolution of power;
      2. assist county governments in building their capacity to govern effectively and provide the services for which they are responsible; and
      3. support county governments;
   2. establish criteria that must be met before particular functions are devolved to county governments to ensure that those governments are not given functions which they cannot perform;
   3. permit the asymmetrical devolution of powers to ensure that functions are devolved promptly to counties that have the capacity to perform them but that no county is given functions it cannot perform; and
   4. provide mechanisms that ensure that the Commission on the Implementation of the Constitution can perform its role in monitoring the implementation of the system of devolved government effectively.

16. Division of revenue

Despite Article 217(1), the first and second determinations of the basis of the division of revenue among the counties shall be made at three year intervals, rather than every five years as provided in that Article.

17. Provincial Administration

Within five years after the effective date, the national government shall restructure the system of administration commonly known as the provincial administration to accord with and respect the system of devolved government established under this Constitution.

18. Local authorities

All local authorities established under the Local Government Act (Cap. 265) existing immediately before the effective date shall continue to exist subject to any law that might be enacted.

Part 5 – ADMINISTRATION OF JUSTICE

19. Rules for the enforcement of the Bill of Rights

Until the Chief Justice makes the rules contemplated by Article 22, the Rules for the enforcement of the fundamental rights and freedoms under section 84(6) of the former Constitution shall continue in force with the alterations, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with Article 22.

20. The Judicial Service Commission

1. The Judicial Service Commission shall be appointed within sixty days after the effective date and the Commission shall be deemed to be properly constituted under this Constitution despite the fact that there may be a vacancy in its membership because of any of the bodies nominating or electing members have not done so.
2. Despite subsection (1), the Judicial Service Commission may not perform its functions unless five members have been appointed.
3. To ensure continuity in the operation of the Judicial Service Commission, despite Article 171(4), when the Commission is first constituted the following members shall be appointed to serve for three years only—
   1. the Court of Appeal judge appointed under Article 171(2)(c);
   2. the High Court judge appointed under Article 171(2)(d);
   3. one of the advocates appointed under Article 171(2)(f), to be identified by the statutory body responsible for the professional regulation of advocates; and
   4. one of the members appointed by the President under Article 171(2)(h), to be identified by the President.
4. Until the Public Service Commission contemplated in Article 233 is established, a person nominated by the Public Service Commission established under section 106 of the former Constitution shall serve on the Judicial Service Commission but, when the new Public Service Commission is established, the person shall cease to be a member of the Judicial Service Commission and the new Public Service Commission shall nominate a person to serve on the Judicial Service Commission.

21. Establishment of the Supreme Court

1. The establishment of, and appointment of judges to, the Supreme Court shall be completed within one year after the effective date.
2. Until the Supreme Court is established, the Court of Appeal shall have jurisdiction over matters assigned to the Supreme Court.

22. Judicial proceedings and pending matters

All judicial proceedings pending before any court shall continue to be heard and shall be determined by the same court or a corresponding court established under this Constitution or as directed by the Chief Justice or the Registrar of the High Court.

23. Judges

1. Within one year after the effective date, Parliament shall enact legislation, which shall operate despite Article 160, 167 and 168, establishing mechanisms and procedures for vetting, within a timeframe to be determined in the legislation, the suitability of all judges and magistrates who were in office on the effective date to continue to serve in accordance with the values and principles set out in Articles 10 and 159.
2. A removal, or a process leading to the removal, of a judge, from office by virtue of the operation of legislation contemplated under subsection (1) shall not be subject to question in, or review by, any court.

24. Chief Justice

1. The Chief Justice in office immediately before the effective date shall, within six months after the effective date, vacate office and may choose either—
   1. to retire from the judiciary; or
   2. subject to the process of vetting under section 23, to continue to serve on the Court of Appeal.
2. A new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.
3. Subsection (2) also applies if there are further vacancies in the office of Chief Justice before the first general elections under this Constitution.

Part 6 – COMMISSIONS AND OFFICES

25. Constitutional Commissions

1. The Commission on the Implementation of the Constitution and the Commission on Revenue Allocation shall be constituted within ninety days after the effective date.
2. The Salaries and Remuneration Commission shall be constituted within nine months after the effective date.
3. Until the legislation referred to in Article 250 is in force, the persons appointed as members or as chairperson of the Salaries and Remuneration Commission shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.

26. The Kenya National Human Rights and Equality Commission

1. The commissioners of the Kenya National Commission on Human Rights appointed under the Kenya National Commission on Human Rights Act (No. 9 of 2002) and the commissioners of the National Commission on Gender and Development, appointed under the National Commission on Gender and Development Act (No. 13 of 2003) other than the Permanent Secretaries and the Attorney-General or a representative of the Attorney-General, shall become members of the Kenya National Human Rights and Equality Commission for their unexpired term but each shall retain the terms of service as at the effective date.
2. The chairperson of the Kenya National Commission on Human Rights shall be the chairperson of the Kenya National Human Rights and Equality Commission for the unexpired term of that chairperson, and the chairperson of the National Commission on Gender and Development shall be the Vice-Chairperson of the Kenya National Human Rights and Equality Commission for that chairperson's unexpired term.

27. The Interim Independent Boundaries Commission

1. The Boundaries Commission established under the former Constitution shall continue to function as constituted under that Constitution and in terms of sections 41B and 41C but—
   1. it shall not determine the boundaries of the counties established under this Constitution;
   2. it shall determine the boundaries of constituencies and wards using the criteria mentioned in this Constitution; and
   3. members of the Commission shall be subject to Chapter Seven of this Constitution.
2. The requirement in Article 89(2) that a review of constituency and ward boundaries shall be completed at least twelve months before a general election does not apply to the review of boundaries preceding the first elections under this Constitution.
3. The Boundaries Commission shall ensure that the first review of constituencies undertaken in terms of this Constitution shall not result in the loss of a constituency existing on the effective date.

28. The Interim Independent Electoral Commission and Independent Electoral and Boundaries Commission

1. The Interim Independent Electoral Commission established under section 41 of the former Constitution shall continue in office in terms of the former Constitution for its unexpired term or until the Independent Electoral and Boundaries Commission established under this Constitution is established, whichever is later.
2. When members of the Independent Electoral and Boundaries Commission are selected, regard shall be had to the need for continuity and the retention of expertise and experience.

29. New appointments

1. The process of appointment of persons to fill vacancies arising in consequence of the coming into force of this Constitution shall begin on the effective date and be finalised within one year.
2. Unless this Schedule prescribes otherwise, when this Constitution requires an appointment to be made by the President with the approval of the National Assembly, until after the first elections under this Constitution, the President shall, subject to the National Accord and Reconciliation Act, appoint a person after consultation with the Prime Minister and with the approval of the National Assembly.

Part 7 – MISCELLANEOUS MATTERS

30. Citizenship by birth

A Kenyan citizen is a citizen by birth if that citizen—

1. acquired citizenship under Article 87 or 88(1) of the former Constitution; or
2. would have acquired citizenship if Article 87(2) read as follows—

"Every person who, having been born outside Kenya, is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall, if his father or mother becomes, or would but for his or her death have become, a citizen of Kenya by virtue of subsection (1), become a citizen of Kenya on 12th December, 1963."

31. Existing offices

1. Unless this Schedule provides otherwise, a person who immediately before the effective date, held or was acting in an office established by the former Constitution shall on the effective date continue to hold or act in that office under this Constitution for the unexpired period, if any, of the term of the person.
2. Subject to subsection (7) and section 24, a person who immediately before the effective date held or was acting in a public office established by law, so far as is consistent with this Constitution, shall continue to hold or act in that office as if appointed to that position under this Constitution.
3. The provisions of this section shall not affect the powers conferred on any person or authority under this Constitution or legislation to abolish offices or remove persons from an office contemplated in subsection (2).
4. If a person has vacated an office that the person held before the effective date, and that office is retained or established under this Constitution, the person may, if qualified, again be appointed, elected, or otherwise selected to hold that office in accordance with the provisions of this Constitution, except to the extent that this Constitution expressly provides otherwise.
5. The functions of the Director of Public Prosecutions shall be performed by the Attorney-General until a Director of Public Prosecutions is appointed under this Constitution.
6. The functions of the Controller of Budget shall be performed by the Auditor-General until a Controller of Budget is appointed under this Constitution.
7. Despite subsection (1), the Attorney-General and the Auditor-General shall continue in office for a period of no more than twelve months after the effective date and the subsequent appointments to those offices shall be made under this Constitution.

32. Pensions, gratuities and other benefits

The law applicable to pensions in respect of holders of constitutional offices under the former Constitution shall be either the law that was in force at the date on which those benefits were granted or any law in force at a later date that is not less favourable to the person.

33. Succession of institutions, offices, assets and liabilities

An office or institution established under this Constitution is the legal successor of the corresponding office or institution, established under the former Constitution or by an Act of Parliament in force immediately before the effective date, whether known by the same or a new name.

34. Currency

Nothing in Article 231(4) affects the validity of coins and notes issued before the effective date.