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Kenya: Parliament Approves New Constitution

(Apr. 8, 2010) On April 1, 2010, the Kenyan Parliament unanimously approved a new Constitution. (Daniel Makosky, Kenya Parliament Approves Constitution Draft, PAPER CHASE NEWSBURST, Apr. 2, 2010, available at
; Proposed Constitution of Kenya, Committee of Experts on Constitutional Review website, Feb. 23, 2010, available at
[hereinafter Draft Constitution]). The draft document now goes to the desk of Amos Wako, Kenya's Attorney General, who is required to publish it within 30 days after receipt, without making any changes to its contents. (Constitution of Kenya Review Act, No. 9, 4 LAWS OF KENYA §34 (LexisNexis, rev. ed. 2009) (official source).) Once the draft Constitution is published, the Electoral Commission will conduct a popular referendum within 60 days. (Id.) The draft Constitution will be ratified if more than 50% of the total votes cast and at least 25% of the votes cast in at least five of Kenya's eight provinces favor its ratification. (Constitution of Kenya, 4 LAWS OF KENYA §47A(5) (LexisNexis, rev. ed. 2009) (official source).)

The draft introduces some legislative oversight of executive functions, such as the requirement for parliamentary confirmation of presidential appointments, including the appointment of members of the Cabinet (Draft Constitution, §152) and judges (Draft Constitution, §166). The draft Constitution also seeks to ensure absolute separation of the executive and legislative branches by banning Cabinet members from simultaneously serving as members of Parliament (Draft Constitution, § 152), which the current constitutional structure allows (Constitution of Kenya, § 16).