The endless alterations that defined Kenya’s quest for a ‘good’ constitution

Kenya, the youngest of the five East African Community countries, is still the only one governed by the same constitutional document — albeit with amendments — since independence.

Like Uganda and Tanzania before her, Kenya gained independence as a dominion within the British Commonwealth, with a Governor-General representing Her Majesty and a government headed by the prime minister.

The constitution originally created a bicameral legislature elected by common adult suffrage, a central government responsible to a central parliament and regional assemblies in the seven regions.

Changes to the constitution would require a 75 per cent majority in both Houses, though those affecting specially entrenched rights of individuals or regions needed a 90 per cent majority in the Senate.

Mzee Jomo Kenyatta, leader of the majority party in parliament, became the country’s first prime minister.

With Independence, came a a flurry of legislative amendments — 10 during the first seven years alone — that altered the constitution extensively.

Through these, the ruling party, Kanu, sought to consolidate its hold on power and pre-empt challenges by dismantling the majimbo or semi-federal regional system and forging a unitary state.

The first amendment created a unitary executive, combining the offices of governor-general and prime minister, and declaring Kenya a sovereign republic.

All executive power was vested on the president of Kenya.

Kenyatta became head of state, head of government and the commander-in-chief of the armed forces not by dint of an election but by virtue of Section 8 of this amendment which declared him so, being the person “who immediately before 12th December 1964 holds the office of Prime Minister.”

Subsequent amendments preserved colonial- era laws as “acts” of the parliament of Kenya, legalised detention without trial, and abolished the senate.

A 1966 amendment requiring MPs who defected, or started a new party, to seek a fresh mandate from their constituents aimed to stop defections to Jaramogi Oginga Odinga’s Kenya People’s Union.

By 1969, the character of the constitution had been so mangled as to require a new amendment declaring it “to be the Constitution of Republic of Kenya and to be the authentic version thereof.”

This amendment also put the Electoral Commission under the absolute control of the president

In the 1970s some amendments dealt with serious matters such as reducing the voting age from 21 to 18 years (1974) and establishing the Kenya Court of Appeal to replace the East African Court of Appeal, which had ceased to exist with the demise of the East African Community (1977).