Francis Mureithi, Isaac Ongiri and Ramadhan Rajab

5 August 2010

Nairobi — RESULTS posted by the Interim Independent Electoral Commission last night indicated that the Yes side had taken an early lead.

Just after 10pm, IIEC chairman Ahmed Issack Hassan said that Yes was leading at that stage with 2,982,847 or 67 per cent of the votes while No had 1,515,744 or 33 per cent. Total votes counted at that stage were 4,498,591 from 12,459 polling stations. There are 26,000 polling stations countrywide.

Unconfirmed reports said that an exit poll by Williams Hill Strategic Research across the country had given the Yes side 74.07% against 25.93% for the No side.

However No was leading in Eastern and most of the Rift Valley province while Yes appeared to have been comfortably ahead in Nyanza, Western,Central,Coast and North Eastern Province.

The No side was making inroads in Eastern even in polling stations as deep as Mwingi South, the backyard of Vice President Kalonzo Musyoka.

Nyanza recorded the highest turn out with over 85 per cent participating according to Ahmed.

"Baringo North and Kacheliba did badly because they only less than 10 per cent by 3PM but generally 50 per cent of Kenyans had voted by then,"Ahmed said.

In Western, Bungoma had 40 per cent while Kakamega had 50 per cent turnout by 3pm. Rift Valley, Central and South had 50 per cent while North Rift had 60 per cent by 3pm.

Central Nyeri and Thika recorded over 70 per cent, Eastern Province Lower had 70 per cent while Upper had 40 per cent by 3pm.

Only 45 per cent had voted in North Eastern by 3pm but Ahmed said some stations opened late and were expected to close later.

With the Yes side taking an early lead, attention has now shifted to President Mwai Kibaki who now has 14 days to promulgate the new constitution.

Once he does this, the clock will start ticking on a series of changes that will reshape Kenya by clearly separating the powers of the legislature, judiciary and executive.

To reduce the influence of the executive over the judiciary, Chief Justice Gicheru will have to leave office with six months of the new constitution being signed into law and Attorney General Amos Wako within 12 months.

Under the transitional clauses of the National Accord, Gicheru and Wako's replacements will be chosen by the President in consultation with the Prime Minister, subject to the approval of Parliament. After 2012, they will be appointed by the President but only on the recommendation of the Judicial Service Commission.

Auditor General Anthony Gatumbu will also have to leave office within one year.

Gicheru has served as Kenya's Chief Justice since February 2003.

Wako has clocked almost two decades in the State Law office since May 1991 making him the longest serving Attorney General in Kenyan history.

Gatumbu was appointed to the Auditor General's office just last year.

Under the Constitution of Kenya Review Act 2008, Kibaki has to promulgate the new constitution through a gazette notice within 14 days after the Interim Independent Electoral Commission publishes the final result of yesterday's referendum.

If the 14 days elapse and Kibaki fails to sign the document into law, then the new constitution will automatically come into force with or without the President's signature.

Kibaki, Raila, the entire Cabinet and other state officers will then be required to take a new oath to faithfully serve the republic.

Once the constitution is in force, the countdown for the departure of Wako, Gicheru and Gatumbu will start. The CJ's departure deadline is February 2011 while Wako and Gatumbu are due to leave by August 2011.

Unlike Wako, Gicheru has two options after leaving office. He can opt to completely retire or he can apply afresh to serve as a Court of Appeal judge. He cannot become a member of the Supreme Court that will be established after the new constitution comes into force.

Appointment of judges to the Supreme Court shall be completed by August next year.

Members of the Supreme Court will be the CJ, who will be its president, the Deputy CJ and five other judges.

After 2012 and the end of the National Accord, appointment of the CJ and his deputy will be done by the President on the recommendation of the Judicial Service Commission, subject to the approval of the National Assembly.

Before 2012, Parliament will be involved in appointing judges of the Supreme Court after their names have been presented by Kibaki and Raila.

Last year the Law Society of Kenya to President Kibaki asking him to appoint a tribunal to investigate Gicheru's suitability as the country's head of judiciary.

In his response, Kibaki said he had studied the petition and found it had no merit.

Under the new constitution, Wako, considred the ultimate survivor, will have no option of a government job once he leaves.

Candidates to replace Gicheru and Wako will have at least 15 years experience as a superior court judge or 15 years' experience as a distinguished academic, judicial officer, or legal practitioner.

Gatumbu was appointed into office but Parliament complained in June that no Auditor General since 1963 had been a qualified accountant. Gatumbu, who is her replacement holds a Bachelor of Education from University of Nairobi.

Apart from Wako, Gicheru and Gatumbu, the new constitution will immediately create 18 new vacancies to be filled in the next 90 days.

Government will need nine people with experience in public administration and human rights to serve as members of a new Commission for the Implementation of the Constitution.

Nine people will be required for a new Commission on Revenue Allocation.

Kibaki and Raila choose them through Parliament will assist and approve.

The implementation commission will oversee the legislation and administrative procedures required to implement this Constitution. It will also co-ordinate with the Attorney-General and the Kenya Law Reform Commission in preparing the legislation to implement the Constitution.

The Revenue Allocation commission will make recommendations for the equitable sharing of revenue between the national and county governments.

The IIEC must also be transformed into a permanent Independent Electoral and Boundaries Commission within the next 12 months. Parliament will have to enact legislation on how the new electoral body will review the boundaries of constituencies and counties.

Within the next year, Parliament must pass laws to establish an independent Ethics and Anti-Corruption Commission, a new Kenya National Human Rights and Equality Commission, and the police service.

MPs will also have to pass a law providing the rules on which convicted criminals the head of state can pardon.

August 2011 will also be the deadline for Parliament to enact legislation providing for the election of speakers of county assemblies.

By December 2012, Kenyans will vote for a President, 290 MPs, 47 senators, 47 governors plus county councillors. The post of Prime Minister and his two deputies will effectively be wiped out.

By 2013 Kenya will have a National Assembly, Senate and county assemblies. The President will appoint a Cabinet of 22 ministers who will not be MPs.