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Glaring Errors in the Draft Constitution
McReggae
#61 Posted : Saturday, May 22, 2010 3:45:12 PM
Rank: Elder


Joined: 6/17/2008
Posts: 23,365
Location: Nairobi
Muganda, good stuff!!!
Wonder hoe Omtatah who has attention to detail did not notice this!!!
..."Wewe ni mtu mdogo sana....na mwenye amekuandika pia ni mtu mdogo sana!".
Mpenzi
#62 Posted : Saturday, May 22, 2010 4:25:15 PM
Rank: Veteran


Joined: 10/17/2008
Posts: 1,234
@Muganda
Your attempt to explain these 'errors' stands on legs of clay. You cannot simply use past drafts to explain away the errors - those are drafts and are irrelevant for purposes of "correcting" the errors. Courts cannot use those earlier drafts to interpret the Draft Constitution. Where there are missing clauses one cannot simply assume nothing was intended to be included in the missing provisions. And lastly your explanation as to what the confused provision in Art 20 (3) means is grossly wanting.
McReggae
#63 Posted : Saturday, May 22, 2010 4:56:06 PM
Rank: Elder


Joined: 6/17/2008
Posts: 23,365
Location: Nairobi
Mpenzi, wat about the explanation that the problem is numbering, not that clauses are missing!!!!
..."Wewe ni mtu mdogo sana....na mwenye amekuandika pia ni mtu mdogo sana!".
Mpenzi
#64 Posted : Saturday, May 22, 2010 5:08:29 PM
Rank: Veteran


Joined: 10/17/2008
Posts: 1,234
McReggae
On what basis would we assume the correct numbering to be? This is law, where even a comma can make all the difference.
muganda
#65 Posted : Saturday, May 22, 2010 6:14:38 PM
Rank: Elder


Joined: 9/15/2006
Posts: 3,903
Bwana @Mpenzi, I respect your sentiments, and yes, the errors are definitely tardy. I gather your issue is not whether the errors arose out of misspelling/ misnumbering; but how the constitution will be interpreted. Just two points:

Point One:
Article 259 (3) Construing this Constitution: Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking

This clause explains the judiciary should interpret the law in a dynamic/ developmentalist/ living approach. The approach of the new constitution enlarges the interpretive arena to include broader historical events including original intent and "how meaning has evolved."
http://en.wikipedia.org/wiki/Original_intent


Point Two:
The phrase 'TO give effect' appears five times in the proposed constitution;
4 times in relation to Parliament which can enact laws
1 time in relation to Commission of Revenue Allocation which recommends laws for equitable sharing of national revenue

But in Article 20 in relation to Courts which do not create laws, it says (a)'DOES NOT give effect'; and immediately after says (b)court shall enforce rights and freedoms. So the court may only apply/enforce but not develop the law to the extent that they grant a new right.



In closing @Mpenzi, none of the misnumbered/'missing' clauses are refered to anywhere else in the constitution anyway; apart from Article 103 clause(1)e[i] which refers to 'missing' clause(2). Interestingly when you come to misnumbered clause(3), it points backwards to clause(1)e making interpretation possible.

So I still respect those who vote NO. But I would suggest reason should be for more that just the clerical errors - even the US constitution has them.
kingauwi
#66 Posted : Monday, May 24, 2010 8:31:20 AM
Rank: Member


Joined: 11/17/2009
Posts: 99

Law is not supposed to be sloppy.

Even mere contracts between two parties are drafted in such a manner that nothing is left to chance.
First they ignore you, then they laugh at you, then they fight you, then you win!
Amurabi.
#67 Posted : Monday, May 24, 2010 1:30:53 PM
Rank: New-farer


Joined: 5/5/2010
Posts: 92
By the way,
has KEJUDE petitioned the "HONOURABLE INDEPENDENT CONSTITUTIONAL DISPUTE RESOLUTION COURT"???
Some have been thought brave because they were afraid to run away.
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