A historical background to kenya’s constitutional reform process

Kenya’s Constitutional Development From Pre-Independence To The Proposed

Constitution, 2010

Laila Abdul Latif, Advocate

Table of Contents

• The Constitutional Development Process

1) Pre Independence- Introduction- The Lyttelton Constitution- The Lennox-Boyd Constitution- The Macleod Constitution

2) Independence

3) Post Independence to 1991- Introduction- The constitutional Amendments

4) 1994 to 2010- Introduction- IPPG- CKRC Draft/NCC Draft/The Proposed New Constitution of Kenya 2005- The Proposed Constitution of Kenya 2010

• The contentious issues arising out of the constitutional development process

The Constitutional development Process

Pre-Independence

Introduction

•Kenya’s constitutional history up to independence can be divided into three phases:

1. 1954 The Lyttleton Constitution

2. 1958 The Lennox-Boyd Constitution

3. 1960 The Macleod Constitution

1954: The Lyttleton Constitution.

It was named after the then Colonial Secretary, Sir Lyttleton.

This was the first Multiracial Constitution.

Its Key Ingredients:

Established a 12 Council of Ministers.6 were to be appointed by the Governor.6 Elected: 3 Europeans, 2 Asians and 1 African.

The African representatives rejected these arrangements.

1958: The Lennox-Boyd Constitution


Increased the Council of Ministers to 16 half elected, and half appointed.

Europeans were still the majority.

Redistribution of Land, release of political prisoners and Repeal of repressive laws not addressed.

Demand for full independence was in the air.

Africans demanded for a Constitutional Conference to negotiate for Independence.

1960: The Macleod Constitution


Provided for a majority of Africans in LEGCO (of 65 Members) and Council of Ministers.

Provided for Independence.

Alluded to self-internal government.

The Constitutional Development Process

Independence

1963: The Independence Constitution


Fully Bicameral Parliament with 131 House of Representatives and 41 Senators.

Cabinet headed by Prime Minister.

It was a federalist constitution.

Divided the country into six regions. Each region to have its own regional government which was responsible for such things as agriculture, public health, primary and secondary education and local government.

There was also to be a central government responsible for defence, foreign affairs , foreign trade, customs and excise and all other matters of national rather than regional importance

The country was still a Dominion and not a Republic because the Queen was still the Head of State and the Prime Minister the Head of Government.


Post Independence to 1991

Introduction• The independence constitution (1963) was negotiated between the new

Kenyan nationalist political leadership and the departing colonial power, but was seen as being imposed upon the larger faction of the nationalist leadership organized in the Kenya African National Union (KANU) under the leadership of Jomo Kenyatta and Oginga Odinga.

• The independence constitution was a federalist construction, and was favoured by the smaller ethnic communities organized in the Kenya African Democratic Union (KADU). Its legitimacy, however, was disputed by the new KANU leadership, and after only one year in force the federalist (Majimbo) constitution was replaced in 1964 with one that introduced a unitary state with an elected President as Head of State.

• Hence, shortly after independence, a practice of frequent constitutional amendments started, which represented the legal endorsement of increasingly authoritarian politics. It meant a process of constitutional decay, where the central constitutional issue of division of power between the executive, the legislature and the judiciary was gradually distorted. This resulted in a close to dictatorial presidency, which became the hallmark of Kenyan authoritarianism in the 1970s and 1980s.

The Constitutional Amendments• The Constitution of Kenya (Amendment) Act

No 28 of 1964• The Constitution of Kenya (Amendment) (No

2) Act No 38 of 1964• The Constitution of Kenya (Amendment) Act

No 14 of 1965• The Constitution of Kenya (Amendment) Act


2)Act No 17 of 1966/Turn Coat Rule• The Constitution of Kenya (Amendment) (No

3) Act No 18 of 1966• The Constitution of Kenya (Amendment) (No






No 10 of 1974

• The Constitution of Kenya (Amendment) Act No 5 of 1974










• The Constitution of Kenya (Amendment) Act 1990


1. The Constitution of Kenya (Amendment) Act No 28 of 1964

Made Kenya a Republic.

Created office of the President and made him both Head of State and Government.

President elected by House of Representatives constituted as Electoral college.

Executive Authority of ‘Majimbos’ highly watered down.

2. The Constitution of Kenya (Amendment) (No 2) Act No 38 of 1964

Transferred to Parliament powers to alter regional boundaries. Originally the power of the regions.

Regional Presidents designated Chairmen.

Appointing authority of Judges given absolutely to the President. Requirement for consultation with at least 4 Regional presidents before appointing CJ removed.

Ex-Officio MPs lose their votes in National Assembly (NA).


Constitution amendment threshold reduced from 90% to 65% in Senate and 75% to 65%.

Executive power of regions deleted completely.

Abolished appeals to privy councils; Supreme Court replaced with High Court.

Approval of Emergency increased from 7 to 21 days and threshold reduced to simple majority from 65%.

Removed provisions concerning control of Agricultural land transactions from the Constitution.


Required MPs who had not attended NA for over 8 sittings or imprisoned for over 6 months to lose their seats (Many KANU rebels were not going to NA) and some had joined KPU.

Minister in charge of citizenship given discretion to grant Citizenship to Commonwealth citizens residing in Kenya for over 6 months.

National Youth Service included in disciplined forces.

5. The Constitution of Kenya (Amendment) (No 2)Act No 17 of 1966/Turn Coat Rule

Required for an MP to seek re-election at the end of the session of his defection.

Meant to deal with Odinga who had left KANU for KPU without resigning their seats.

Odinga and Kenyatta’s wars started in earnest.


Period of NA review of Emergency orders increased from 2 to 8 months.

Greater and wider derogations of Fundamental right and freedoms permitted.

Removed the provision calling for reasonable justification for such derogations.

Meant to allow for detention of recently defected KPU leaders.


Both houses amalgamated to form a National Assembly.

Increased constituencies by 41 to accommodate Senate MPs.

Quorum of NA fixed at 30.

Speaker of NA made Chair of Electoral Commission of Kenya assisted by two Presidential appointees.

References to Senate deleted and life of NA extended to end in June 1970 instead of 1968.


Meant to clear doubt over Section 42A (Turn Coat Rule).

Backdated the effect of the Fifth Amendment to 1963.

KPU members argued that the amendment came after they had decamped.


Abolished Provincial Councils and deleted from the constitution any references to the provincial and district boundaries and alterations thereof.


Election of President made to be by Universal Suffrage.

Every party required to nominate a Presidential Candidate.

Ballot paper made to pair President and MP from same party.

Independent candidates barred from contesting.

Qualifications for presidency introduced.

President empowered to appoint members of PSC and nominate 12 MPs.

Altered provisions of presidential succession and removed parliamentary approval for state of emergency declaration.


Consolidated all the Constitutional amendments as at February 1969 thereby resulting in a revised Constitution for Kenya in one document which was declared to be the authentic document.

Membership of ECK altered by making all members appointed by the President.


Reduced the age of voting from 21 to 18.


Made Kiswahili one of the official languages of the National Assembly.


Repealed Constitution of Kenya(Amendment) No 2 of 1974.

Provided that all financial resolutions and written laws be presented to the House shall be written in English, and all other issues would be debated in Kiswahili.

Extended the Presidential prerogative to include annulling disqualifications arising out of a ruling of the Elections Court – Ngei Amendment (meant to benefit Ngei).


Established the Court of Appeal.

Abolished the right to directly remit compensation for acquisition of property abroad without complying with foreign exchange regulations.


Provided for use of English as an alternative Parliamentary language.

Proficiency in Kiswahili made a prerequisite for qualification for people seeking parliamentary office.


Specified period within which a civil servant must resign to seek office.

6 months prior to preliminary elections.


Introduced Section 2A that changed Kenya from a de facto to de jure one party state making Kenya a one-party state by Law.

Turn coat rule(Fifth Amendment) repealed.

Method of nominations for General Elections amended making them a preserve of KANU.


Repealed Section 89 which provided for automatic Citizenship for people born in Kenya after Dec 1963. Henceforth, either of your parents must be Kenyan.


Removed Security of Tenure of AG and Auditor & Controller General.

Abolished office of Chief Secretary.

Provided for a new min 168 and max 188 Constituencies.


Made all Capital offences non-bailable.

Torture of Political prisoners entrenched in the Criminal Justice system.


Legalised detention of Capital offenders for 14 days without trial allowing for time to torture.

Removed security of tenure of Constitutional office Holders.

23. The Constitution of Kenya (Amendment) Act 1990

Returned the Security of tenure of Constitutional office Holders.

Provided for a max of 210 and min of 188 Constituencies.

24.The Constitution of Kenya (Amendment) Act No 12 of 1991

Repealed Section 2A of the Constitution hence ending the de jure one-party rule in Kenya.

The Turn Coat Rule (Fifth Amendment) was reintroduced.

The nomination procedure leading to elections of the National Assembly and Presidency were amended to accommodate multipartism.

A definition of a political party was adopted.

The Amendments were meant to:

- Strengthen the Executive.

- Emasculate the other arms of government.

- Derogate fundamental human rights and civil liberties.


1994 to 2010

Introduction

The Kenyan transition that began in 1991 with the repeal of Section 2A of the constitution was woefully incomplete.

While the repeal of Section 2A of the constitution allowed for the legal existence of opposition parties, it left in place a matrix of laws which undermined liberal principles necessary for a functional multi-party system.

These laws included restrictions on free assembly, sedition laws, and party registration mechanisms controlled by the executive.

The first multi-party elections were held in 1992 which saw Kanu and President Moi return to power following the disintegration of Ford after Matiba and Jaramogi Odinga broke ways to form Ford Asili and Ford Kenya respectively which gifted Moi victory.

But street riots erupted with the opposition led by Ford Asili's Kenneth Matiba who alleged that Kanu had rigged the 1992 elections.

To counter the street demonstrations, the Inter Party Parliamentary Group (IPPG) was founded in 1997.

IPPGThe IPPG had what they called the minimum constitutional reforms: under which the following had to be done:

- Amendment of the constitution to declare Kenya a multi-party democratic state.

- To allow a coalition government.- To increase the membership of the

Electoral Commission of Kenya by 10 with additional commissioners being seconded by the opposition parties.

- To have the 12 nominated members of parliament appointed in proportion to the elected parliamentary strength of the various parties

- To outlaw discrimination based on Sex

The Statutory reforms were inter alia:

- Amending the Public Order Act so as to enable political parties to operate freely.

- Eliminating detention without trial.- Reducing the powers of the chiefs.- Requiring Kenya Broadcasting

Corporation to be fair in balancing its political coverage

Administrative reforms included:

- Clemency for political prisoners and those associated with the 1982 attempted coup.

- Registration of all political parties seeking registration.

- Processing within 30 days of all pending applications for broadcasting licences.

From the aforementioned recommendations, some were enacted into law on November 7, 1997 as:

- Constitution of Kenya (Amendment) Act of 1997

- Statute Law (Repeals and Miscellaneous) Act of 1997

CKRC Draft/NCC Draft/The Proposed New Constitution (2005)

• As part of the IPPG package, the Constitution of Kenya Review Act (1997) came into force as the machinery required to meet the goals of post-election constitutional review.

• Hence in 2000, the Constitution of Kenya Review Commission (CKRC) led by renowned constitutional lawyer Prof Yash Pal Ghai embarked on a process of constitutional review.

• The process led to three draft constitutions. The Constitution of Kenya Review Commission Draft submitted to the Bomas Constitutional Conference (Ghai Draft), the Constitution Conference Draft (Bomas Draft) and the Proposed New Constitution 2005 (Wako Draft).

• The Bomas Draft proposed:

- Transferring most of the powers of the President elected by the people to the Prime Minister who would be elected by Parliament. In addition, there would have been checks on executive appointments.

- The PM would nominate MPs to become Cabinet ministers; the President would then appoint them. All appointments would require vetting by the Senate (Upper House) which would have been created in addition to the Lower House-(House of Representatives).

- (Please see notes)

• The Wako/Kilifi Draft:

- Was a modified version of the current constitution but it got rid of the 25 per cent requirement that requires the winner in the presidential election to garner 25 per cent of votes cast in at least five provinces.

- The winner would also have to get more than 50 percent of the vote, else an instant re-run would occur.

- The Wako Draft was voted on in the 2005 referendum. It was rejected at the ballot box.

Post 2005

• There was a Post 2005 minimal Constitution Reform option that was proposed by Prof. Yash Pal Ghai after the failed referendum. His proposal suggested that for political and practical reasons, Kenya’s constitutional change was to be done in small phases.

• Following the 2007 Post Election violence the Kenya National Dialogue and Reconciliation Committee chaired by His Excellency Kofi Annan and comprising of H.E. Benjamin Mkapa and H.E. Graca Machel was formed. Its main goal was to achieve sustainable peace, stability and justice in Kenya through the rule of law and respect for human rights.

• The committee’s framework identified four main agenda items for the purpose of ending the violence. These four agenda items were:

1. Immediate action to stop the violence and restore fundamental rights and liberties.2. Immediate measures to address the humanitarian crisis, promote reconciliation, and healing.3. How to overcome the political crisis.4. Address long term issues, including constitutional, legal and institutional reforms; land reform; tackling youth unemployment, tackling poverty, inequity and regional development imbalances, consolidating national unity and cohesion, an d addressing impunity, transparency and accountability.

As a result the following institutional frameworks were enacted and established:

1. Constitution of Kenya (Amendment) Act, No 3 of 2008

Introduced:

Section 15A that provided for a Prime Minister and two deputy Prime Ministers.

Section 41(1) that provided for an Interim Independent Electoral Commission.

Section 41B that provided for an Interim Independent Boundaries Review Commission.

Section 47A that provided for a provision on how to replace the constitution.

Section 60A that provided for an Interim Independent Constitutional Dispute Resolution Court.

2. National Accord and Reconciliation Act, 2008

Introduced a coalition government.

3. Truth, Justice and Reconciliation Act, 2008

•Was an Act of Parliament to establish a Commission to seek and promote justice, national unity, reconciliation and peace, among the people of Kenya by inquiring into the gross human rights violations in Kenya and recommending appropriate redress for persons and communities who have suffered injury, hurt, harm, loss, damage, grievance or those who have in any other manner been adversely affected by such acts or omissions.

The Proposed Constitution (2010)

• In March 2009 the 10th Parliament started this off by creating a Committee of Experts (CoE) on Constitutional Reform to gather views from the public, deliberate on contentious issues and come up with a draft of the new constitution.

• On October 2009 the CoE concluded their work on creating a draft and announced that they would be releasing it on November 17th, 2009 so that the public could debate the document and then Parliament can decide whether to subject it to a referendum. The public was given 30 days to scrutinize the draft and forward proposal and amendments to their respective MPs, after which a revised draft was presented to the Parliamentary Committee on January 2010.

• The PSC revised the draft and returned the draft to the CoE who published a Proposed Constitution on February 23rd, 2010 that was presented to Parliament for final amendments if necessary. After failing to incorporate over 150 amendments to the Proposed Constitution, Parliament unanimously approved the Proposed Constitution on April 1st, 2010.

• The Proposed Constitution was presented to the AG of Kenya on April 17th, 2010 and officially published on May 06th, 2010.

The contentious issues arising out of the constitutional development process

Adapted from the contested issues as identified by the Law Society of Kenya’s (LSK) Standing Committee’s Final Report to the LSK Council dated August 2006, as commissioned by the UNDP Kenya Office. See LSK (2006) “Standing Committee’s Final Report to the LSK Council,” at http://www.ke.undp.org/constitutionalreview.pdf

• 1. Kadhis’ Court/Christian Courts • 2. Presidential Powers • 3. Executive Authority • 4. Powers of Prime Minister • 5. Presidential/Parliamentary System

of Government • 6. External Ministers – Non-elected • 7. Women representation in

parliament • 8. Presidential Impeachment

threshold • 9. Threshold for amending the new

Constitution • 10. Place of culture in the constitution • 11. Bill of rights - Muslims • 12. Land tenure and land commission • 13. Gay and lesbian marriages • 14. Citizenship • 15. Child rights • 16. Commissions - Too many? • 17. Administrative Justice/past

injustices

• 18. Teachers Service Commission • 19. Inheritance of land, etc. by

women • 20. Provincial Administration • 21. Post constitution Legislative

enactments • 22. Presidential candidate not to

qualify for parliamentary elections • 23. Limitation of foreign ownership

of land • 24. Devolution • 25. Presidential election -

percentage of Districts if at all • 26. Death sentence • 27. Entrenchment of the Kenya

Anti Corruption Commission in the Constitution

• 28. The Place of the East African Community and its organs in the Constitution and Treaty Making Procedures.

THE END