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).

Others, such as that which allowed president Kenyatta to pardon his friend Paul Ngei who had been convicted of an electoral offence (1975), were more like personal favours.

Some, though, verged on the ridiculous. A 1974 amendment making Kiswahili the official language of Parliament created such a farce as MPs struggled to cope that in 1975 another amendment was required to bring back English.

Though Kenya had been a de facto one-party state since the 1969 proscription of KPU, a 1982 amendment, proposed by Charles Njonjo and seconded by current president, Mwai Kibaki, declared Kanu the only legal party.

The amendment also created the office of chief secretary who was the head of the public service and exercised supervision and co-ordination of all departments of government.

(Sound familiar? They are the same functions which today are shared between the Prime Minister Raila Odinga and the Secretary to the Cabinet, Francis Muthaura.)

The chief secretary was under the control of the office of the president and through him therefore the president was able to control the entire public service. In fact, when the office was abolished in 1986, its powers were transferred to the president ensuring that all public servants held office at the president’s pleasure.

In the 1990s, electoral competition and Kanu intransigence in the face of demands for transparent and accountable government from civil society and Western donors, reshaped the constitutional landscape.

In 1991, following mass demonstrations and foreign aid suspension, Kanu repealed the infamous Section 2A, returning Kenya to the multi-party fold.

In 1992, provisions on electing the president were changed to require an outright winner in the first round to garner “a minimum of 25 per cent of the valid votes cast in at least five of the eight Provinces.”

If there was no such a winner, the top two candidates were to participate in a run-off with a simple majority of votes deciding the winner.

The amendment also introduced a two-term presidential limit. Daniel Arap Moi, who had been in power for 14 years, declared his candidacy for the 1992 elections arguing that the provision had no retroactive effect. He went on to serve another two terms.

In 1997, Parliament passed the Constitution of Kenya Review Commission Act to provide a framework for constitutional change.

Agitation for “minimum” reforms in the run-up to the 1997 elections led to amendments to give effect to the Inter- Party Political Parties Group (IPPG) discussions, which provided for certain “minimum” political and legal reforms.

These changes allowed other political players on the political scene to participate in making certain appointments.

Section 33 of the Constitution was amended to allow political parties, rather than the president, to nominate MPs and councillors.

The number of Electoral Commission of Kenya (ECK) Commissioners was increased from 4 to 21.

However the “gentlemen’s agreement” with regard to the manner of appointing the Commissioners was not written into the constitution — an omission that would come back to haunt the country a decade later.

After the 1997 elections, further government intransigence led religious leaders and civic groups to form a parallel constitutional reform process Ufungamano House, one that they said would be more “people-driven.”

The subsequent 15-member People’s Commission of Kenya (PCK) was eventually merged with the CKRC in June 2001 following the intervention of CKRC Chairman, Prof. Yash Pal Ghai.

The unified CKRC now set about its task of collecting Kenyans views on what they felt should be in the new Constitution, preparing a draft Constitution based on those views and organizing a National Constitutional Conference.

In 2003, delegates to the Conference held at the Bomas of Kenya agreed to a new Draft Constitution.

A bastardised version of the Bomas Draft, the so-called “Wako Draft,” was eventually put to a national referendum and rejected by Kenyans in November 2005.

In the new millennium, following the violence that accompanied the disputed 2007 elections, Parliament passed the Constitution of Kenya Review Act, 2008 creating a Committee of Experts to analyze the documents and drafts that came out of the CKRC process, resolve the contentious issues and come up with a harmonized draft.