45A.      Parliamentary Service

CHAPTER III

PARLIAMENT

PART 1

Composition of Parliament

Legislative power.

30.  The legislative power of the Republic shall vest 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(3)    (Repealed by 6 of 1992, s.7).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.

9 of 1997, s. 5.

33.              (1) Subject to this section, there shall be twelve nominated members of the National Assembly appointed by the President following a general election, to represent special interests.

(2)    The persons to be appointed shall be persons who, if they had been nominated for a parliamentary election, would be qualified to be elected as members of the National Assembly.

(3)    The persons to be appointed shall be nominated by the parliamentary parties according to the proportion of every parliamentary party in the National Assembly, taking into account the principle of gender equality.

(4)    The proportions under subsection (3) shall be determined by the Electoral Commission after every general election and shall be signified by the chairman of the Commission to the leaders of the concerned parliamentary parties, the President and the Speaker.

(5)    The names of the nominees of parliamentary parties shall be forwarded to the President through the Electoral Commission who shall ensure observance of the principle of gender equality in the nominations.

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

(d)   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 subsection (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 by such a court; or

(c)   is, under any law in force in Kenya, adjudged to be of unsound mind; or

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

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

(f)    holds or is acting in any office in the public service (including the office of judge or member of a court of 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 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 or the payment of a fine.

(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 provided that a person who is convicted by a court of an offence 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 petition, shall not be qualified to be nominated for 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 purposes 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

(c)   if he ceases to be a member of the National Assembly otherwise than by reason of the dissolution of Parliament; 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     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 nominated 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 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 his subsection shall not apply to any member who is elected as Speaker.

Electoral Commission.

17 of 1990, s. 2,

9 of 1997, s. 6.

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

(1A)Every member of the Commission shall be a citizen of Kenya.

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

(2A)The chairman and the vice-chairman of the Commission shall be persons who have held or are qualified to hold office of judge of the High Court or judge of appeal under this Constitution.

(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 or judge of appeal; or

(ii)               who 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; and

(b)    the tribunal shall inquire into the matter and report the facts thereof to the President and recommend 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 the Commission shall not be subject to the direction of any other person or authority.

(10) Subject to this Constitution and without prejudice to subsection (9), Parliament may provide for the orderly and effective conduct of the operations and business of the Commission and for the powers of the Commission to appoint staff and establish committees and regulate their procedure.

(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 trends;

(c)     the means of communication;

(d)     geographical features;

(e)     community of interest; and

(f)      the boundaries of existing administrative areas,

and, for the purposes 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 sections hall 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,

9 of 1997, s. 7.

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;

(c)    promoting free and fair elections;

(d)    promoting voter education throughout Kenya; and

(e)    such other functions as may be prescribed by law.

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 of periods carried on business there, or has for such a period or periods been employed 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

(c)     if he is detained in lawful custody; 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 his 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,

9 of 1997, s. 8.

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)     (Repealed by 9 of 1997, s. 8).

Clerk of National Assembly and staff.

45.         (Repealed by 3 of 1999)

Inserted by Act 3 of 1999

PART 1A

The Parliamentary Service and the Parliamentary Service Commission

Parliamentary Service.

45A.  (1) There shall be a service to be known as the parliamentary service.

(2)   There shall be a Clerk of the National Assembly and such other officers and staff as may be appointed for the purposes of the National Assembly in accordance with section 45B.

(3)   The offices of the Clerk of the National Assembly and the officers and other staff provided for under subsection (2) shall be offices in the parliamentary service.

Parliamentary Service Commission.

45B.   (1)  There shall be a Parliamentary Service Commission which shall consist of:-

(a)     The Speaker of the National Assembly who shall be the chairman;

(b)     a vice-chairman elected by the Commission from amongst the members appointed under paragraph (e) of this subsection;

(c)     the leader of Government business in the National Assembly or a member of the Assembly deputed by him;

(d)     the leader of the opposition party with the highest number of seats in the National Assembly or a member of the Assembly deputed by him;

(e)     seven members (other than the President, Ministers, Assistant Ministers and the Attorney-General) appointed by the National Assembly from amongst its members, of whom:-

(i)                 four shall be nominated by the parliamentary party or parties forming the Government; and

(ii)               three shall be nominated by the parliamentary party or parties forming the opposition.

(2)   A member of the Commission, shall vacate office:-

(a)  Upon dissolution of the Parliament during which the member was appointed to the Commission:

Provided that upon dissolution of Parliament, appointed members of the Commission shall continue in office until new members are appointed in their place by the next National Assembly;

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

(c)  if circumstances arise that, if he were not a member of the Assembly, would disqualify him for election as such;

(d)  if he is an appointed member, upon revocation of his appointment by the Assembly or upon his resignation; or

(e)  if he is the Speaker or the leader of Government business, or the leader of the opposition party with the highest number of seats in the National Assembly, upon ceasing to hold office as such.

(3)   If the office of chairman of the Commission is vacant or the chairman is for any reason unable to exercise the functions of his office, then, until a person has been elected Speaker and has assumed the functions of chairman, or until the person holding that office has resumed those functions, as the case may be, the vice-chairman or, if the office of vice-chairman is vacant, or the vice-chairman is for any reason unable to perform the functions of the office of chairman, such one of the other appointed members as the Commission may elect shall act as chairman; and the vice-chairman or the other member shall, subject to subsection (2), continue to act until a person has been elected to the office of Speaker and assumed the functions of chairman or, as the case may be, until the person in whose place he is acting has assumed or resumed those functions.

(4)   If the office of an appointed member of the Commission is vacant or if such member is acting as chairman under subsection (3), or is for any reason unable to exercise the functions of his office, the Assembly may appoint a person who is qualified to be appointed to be a member to act in place of that member; and a person so appointed shall, subject to subsection (2), continue to act until a person has been appointed to the office in which he is acting or has assumed the functions of that office or, as the case may be, until the person in whose place he is acting has resumed those functions.

(5)   The Parliamentary Service Commission shall have power:-

(a)        to constitute and abolish offices in the parliamentary service;

(b)   to appoint persons to hold or act in the offices of the Service (including the power to confirm appointments) and to exercise disciplinary control over persons holding or acting in those offices (including the power to remove those persons from office);

(c)         to provide such services and facilities as are necessary to ensure efficient and effective functioning of the Assembly;

(d)         to direct and supervise the administration of the services and facilities provided by, and exercise budgetary control over, the Service;

(e)         in such manner as may be prescribed by or under an Act of Parliament:-

(i)                 to cause to be prepared and laid before the National Assembly in each financial year estimates of expenditure (which shall be a charge on the Consolidated Fund) of the parliamentary service for the next following financial year;

(ii)               to cause to be audited and a report thereon laid before the Assembly at least once every year, the accounts of the Commission (also known as the accounts of the Clerk of the National Assembly) provided that until such time as the manner of the audit and report is prescribed as aforesaid section 105 shall continue to apply mutatis mutandis;

(f)           without prejudice to the generality of paragraphs (c) and (d), to provide security staff to maintain proper security  for members of the Assembly and for the services and facilities within the precincts of the Assembly;

(g)         to determine the terms and conditions of service of persons holding or acting in the offices of the Service;

(h)         from time to time as necessity arises, to appoint an independent body to review and make recommendations on the salaries and allowances of the members of the Assembly;

(i)            to initiate, co-ordinate and harmonise policies and strategies relating to the development of the Service;

(j)           to undertake, singly or jointly with other relevant authorities and organisations, such programmes as will promote the ideals of parliamentary democracy in Kenya;

(k)          to do such other things including review of parliamentary powers and privileges as may be necessary for the well-being of the members and staff of the National Assembly and to exercise such other functions as may be prescribed by or under an Act of Parliament.

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

(7)   Subject to this section, the Commission may by regulations or otherwise regulate its own procedure and, with the consent of the President or the Public Service Commission, as may be appropriate, may confer powers or impose duties on any public officer or authority for the purpose of the discharge of its functions.

(8)   Subject to any regulations made under subsection (7), the Commission may act notwithstanding a vacancy in its membership or 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

(9)   The Commission shall endeavour to reach every decision by consensus:

Provided that where on any matter consensus cannot be obtained, the decision of the Commission shall require the concurrence of a majority of all the members thereof.

(10)              The Commission may, by directions in writing, delegate any of its powers under this section to any one or more of its members or to any officer in the parliamentary service.

(11)              Notwithstanding anything to the contrary appearing in this section, the Commission may:-

(a)   engage persons under individual contracts of service upon such terms and conditions as the Commission may determine;

(b)   commission any person, who in its opinion possesses expert knowledge or is otherwise able to assist in connection with the exercise of its functions, to make such inquiries or to conduct such research or to make such reports as may be necessary for the efficient and effective carrying out of its functions;

(c)   appoint competent persons, whether members of the Commission or not, to be a committee or committees to assist the Commission on such matters within the scope of its functions as are referred to them by the Commission.

(12)              Subject to this section, provision may be made by or under an Act of Parliament for prescribing the manner of the exercise of the functions of the Commission under this section and for any matters incidental or supplementary to the exercise of those functions.

(13)              For the avoidance of doubt and without prejudice to the generality of subsection (14), section 48 and section 107 (1) shall not apply in relation to the parliamentary service.

(14)              This part shall have effect notwithstanding any other provision of this Constitution and, accordingly, if any such provision is inconsistent with a provision of this Part, the provision of this Part shall apply.