Kenya’s Constitution Making History: 1890-2010

Kenya’s Constitution Making History: 1890-2010 Kenya’s search for a new constitution can be traced back, as long back, as 1890 when the British started settling in Kenya after the IBEA Company had navigated the country. In 1920, the British declared Kenya a protectorate and a colony: a colony in the interior parts of Kenya and a protectorate at the 10-miles coastal strip that was under the reign of the sultan of Zanzibar. When one looks at that history, one is able to discern the issues that have made Kenyans clamour for change, including the issue of reduced power at the centre; some communities seeking to get out of their marginalized status; and some others wishing to secede and so on. Below is an analysis of the five phases of Kenya’s search for a new order that is built on justice, equality and common good.

PHASE 1: 1890-1960

In this phase, marked by subordination and subjugation of the local people by colonizers, there was an undying need for freedom. Colonial rule was by decree, ordinances and also was marked by dictatorship of the colonial governor, who represented the queen of Great Britain. Africans were clamouring for freedom and land, which had been taken away since Kenya was declared a settler colony. All fertile land was taken away for large scale farming and livestock keeping. Communities that previously resided on such lands, like the Maa speaking communities, were deprived, chased away or simply held in ‘reserve’ lands, which were akin to ‘concentration camps’ in Nazi Germany. Africans were denied the rights to organize and even form political parties. The British administered Kenya both as a protectorate and also a colony. But the interior colony only meant where they had presence: both in the major towns and also rural areas under settler farming. The northern parts of Kenya were neglected. Marginalization of these people took root then; and this has implications of how such people participated or not in future national processes including making the constitution.

By the time 1944 approached, there was some level of consciousness among Africans and some of them were elected to the Legislative Council (LEGCO). More representation in both the executive council and the LEGCO was fought for by the emerging African leaders. Further, while there were some elements of constitutional law towards the end of the phase, especially through the Lyttleton and Lenox Boyd Constitutions (of 1954 and 1958 respectively), it was emerging that Africans wanted more: total representation in all organs of government and also freedom to rule their own country. This led to the second phase discussed below.

PHASE 2: 1960-1962

This phase was marked by emerging constitutional moments. In this phase, three conferences were organized in London to draft Kenya’s new constitution. In these discussions, some of the key problems in phase one resurfaced. For instance, the Mwambao United Front, coming from the then coastal protectorate, was demanding federalism and to some extent a high level of autonomy for their region. The Maa speaking communities were demanding back their fertile grazing land, which has been deprived off them after signing the ‘Lenana Agreements’ of 1904 and 1908. The Somali and communities in the northern region, which has not seen any level of infrastructural development during colonialism demanded full independence as a country on its own. Thus, the way in which the British administered Kenya came back to haunt the three conferences in Lancaster.

Moreover, there were new political parties pitching for two systems of government. KADU pitched for a federal state, and was backed by minority groups including the then settlers. KANU on the other hand pushed for a centralized system akin to how colonialists administered Kenya, and also favoured a parliamentary system similar to the one in United Kingdom. In summary, by the time 1962 came, an independence constitution was drafted largely ignoring the issues of marginalization and freedom of northern peoples and coastal protectorate; ignored the question of African administrative structures that had existed prior and during colonialism; and also ignored the claims about land. However, the drafters and parties present agreed that right to own property be constitutionalized; agreed on citizenship can be acquired after birth or through other processes; agreed on an independent judiciary; a parliamentary system; and also agreed that the prime minister and governor co-exist together among other things. All these were to change in the next phase.

PHASE 3: 1963-1991

Kenya became independent partially by having self-government under a prime minister, then later full independence but still with the governor as head of state representing the queen. But before one year was over, the first amendment was passed to abolish this latter post, and equip the same powers to the prime minister. The rain, as it goes, started beating Kenya on this material day.

Numerous amendments that wrecked havoc to institutionalism and constitutionalism were hurriedly done to the extent that by 1969, ten amendments had been made. The independence constitution was totally modified to suit the power hungry elite, who equipped so much power in the presidency – a president who was never elected by anyone in the first place. That was the first type of amendments: amendments to destroy the constitutional infrastructure cited in phase two above.

The second type of amendments consisted of changing the constitution but later MPs realizing the folly and going back to the state as it was then. Such amendments included the change of parliamentary language from English to Kiswahili and later on reverting to both; or the amendment that removed security of tenure for constitutional office holders only to return to status quo at a later date; or even the amendment to create a dejure one party state and later on return Kenya into multipartyism. The later concluded this phase as the 27th amendment of 1991.

PHASE 4: 1992-2002

This phase was marked by numerous demonstrations and street protests for change. The former president Moi at the helm of the party and the state was solid and anti-reform. But the push surmounted all decoys that either him or KANU put as obstacles. Kenya opened up, people claimed more space, and civil society pushed from the middle for an all inclusive democratic process to rewrite the constitution. A group of reformers emerged from civil society and the opposition political parties, and they pushed for reforms on behalf of the common person. Indeed, if elections were any indicator in 1992 and 1997, Moi had already lost his grip over the country.

Within this phase, three critical steps were taken. First was to forge a common ground for reforms, within the Ufungamano Initiative. Second was to organized and push for legislative framework to govern the process. And third, was the push for further constitutional amendments under the IPPG, which somehow stole the chance to rewrite the country’s constitution in 1997. The fourth issue that could have helped steer the process did not happen. That was the convocation of Bomas, consisting of MPs, was to meet before the 2002 elections but Moi dissolved parliament thereby blowing the last candle that Kenya could get a constitution before the 2002 elections. But within this phase, as it ended, something critical happened: Moi and KANU lost elections to a promising opposition which had been key advocates of constitutional and institutional reform.   They were to steer the process once in power.

PHASE 5: 2003-2010

In Kenya’s history, this is the most promising phase in the search of a new order. But alas, Kenyans squandered the opportunity. Kenyans were however led by a querulous government in 2003 whose formation combined both anti- and pro- reformists; to a divisive referendum in 2005; and, to a post-election debauchery in 2008. This is where Kenya’s dream search for that new order remained still that: a dream. Within this phase, three critical things happened: first, the current president Kibaki and his henchmen and women refused to fully implement the pre-elections MoU that could have saved this country from the quarrels of government and the stalemate at Bomas. Second, within parliament, there was no agreement on the draft that would be taken to the referendum, as two opposing forces emerged and Kenyans followed suit. And third, Kenyans did not allow objective civic education to take place and each followed their own ethnic lineage to vote for or against the draft.

After the defeat of the constitutional draft at the referendum, there were efforts aimed at jumpstarting the review. Such efforts included a taskforce set up to investigate why Kenyans rejected that draft; parliamentary attempts by front- and back-bench MPs; and also, political parties’ initiatives to re-start the process. All these were in vain.

Summarily, new laws were drafted but were either hazy or ill-intentioned to restart the process. Second, politicians switched sides within this phase, where pro-reformers now enjoying presidential and state power, wanted status quo, while the group outside confines of such power wanted power devolved. And third, legal bottlenecks either as opinions from lawyers or judicial rulings from judges stifled an already polarized process.

Kenya is still in this phase. A committee of experts was formed and already, yet again, Kenyans have been quarreling about the process and content of the new order. Politicians are campaigning; most of civil society is confused in the process, but some like Katiba Sasa know what they want; Kenyans are claiming more and more ‘contentious issues’ by the day. But the clock is ticking. August 4th 2010 is nearing. Will the committee of experts, parliamentary committee, MPs in total, reference group of key stakeholders, and also civil society in general agree to make the constitution that befits justice, equality and common good? Will the envisaged referendum be about the draft constitution or about personalities or politics of succession or ethnic lineages? Will this be a lost phase again? Many are optimistic that, and should vote for, the Proposed Constitution of Kenya that will become the new ‘supreme law’: but time will surely tell.

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  • Rehabsheraw

    am proud dat we have a new katiba

  • Ombati O James

    please update this last phase because of the new amendments and passing of our beloved constitution and show how it has been thorned by our leaders

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