The Constitution of Kenya is the supreme law of the Republic of Kenya. There have been three significant versions of the constitution, with the most recent redraft being enabled in 2010. The 2010 edition replaced the 1963 independence constitution. The constitution was presented to the Attorney General of Kenya on 7 April 2010, officially published on 6 May 2010, and was subjected to a referendum on 4 August 2010. The new Constitution was approved by 67% of Kenyan voters. The constitution was promulgated on 27 August 2010.
These changes included: changing the structure of the state from a federal, or Majimbo system, to a unitary system; creating a unicameral instead of bicameral legislature; changing from a parliamentary to a semi-presidential system with a powerful presidency; and reducing the protections of the bill of rights. Further amendments to the 1969 constitution were later effected, including, in 1982, the institution of a de jure single party government.
The demand for a new constitution to replace the 1969 text with a more democratic system began in the early 1990s, with the end of the Cold War and democratic changes taking place elsewhere in Africa. The single party system was ended in 1991, and the first presidential election took place in 1992. Calls for a comprehensive review of the 1969 Constitution intensified in the late 1990s and early 2000s, helped by the victory of the opposition National Rainbow Coalition (NARC) party in the 2002 general elections. Official and civil society consultation processes led to the adoption of what became known as the “Bomas draft” constitution (after the location of the conference that adopted it).
However, substantial amendments were nonetheless made to this draft prior to a referendum in 2005, resulting in a split in the then ruling coalition. The Liberal Democratic Party faction of the government, led by Raila Odinga, and supported by KANU led a successful ‘No’ vote against the amended Bomas Draft (called the Wako draft after the alleged mastermind of the changes). The review of the Constitution stalled and negotiations over the adoption of a new text seemed deadlocked. A deadlock only finally broken by the intervention of the African Union through a mediation team headed by Kofi Annan, following the outbreak of serious post-election violence in early 2008
The Constitution of Kenya was the final document resulting from the revision of the Harmonized draft constitution of [Kenya] written by the Committee of Experts initially released to the public on 17 November 2009 so that the public could debate the document and then parliament could decide whether to subject it to a referendum in June 2010. The public was given 30 days to scrutinise the draft and forward proposals and amendments to their respective members of parliament, after which a revised draft was presented to the Parliamentary Committee on 8 January 2010. The Parliamentary Select Committee (PSC) revised the draft and returned the draft to the Committee of Experts who published a Proposed Constitution on 23 February 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 1 April 2010. The proposed constitution was presented to the Attorney General of Kenya on 7 April 2010, officially published on 6 May 2010, and was subjected to a referendum on 4 August 2010. The new Constitution was approved by 67% of Kenyan voters.
The key changes proposed by the new constitution released are in the following areas:
Separation of Powers between the three arms of government i.e., executive, legislature and judiciary.
The executive – who holds executive authority and the qualifications.
The legislature – the composition, and representation of the people. An introduction of an upper house – the Senate.
The judiciary – qualifications to hold office and appointment
Devolution – only two levels of Government: National and Counties.
Citizenship – among other issues, gender discrimination was ended, and citizens who acquire foreign citizenship will not lose their Kenyan citizenship.
An advanced Bill of Rights that among other things recognizes socio-economic rights of Kenyan citizens. (Chapter Four).
The removal of age limit of 35 years to run for president. New draft allows people to run as long as they are of adult age. Article 137(b)
Right to recall legislators (senators and members of the National Assembly). (Article 104)
Representation in elective bodies has to effectively meet a gender equity constitutional requirement, namely that no more than two-thirds of members shall be from either gender in its make up. Chapter 7, Article 81(b)
Integrity Chapter, requires an independent ethics commission to will monitor compliance with integrity in all government institutions and make investigations, recommendations to the necessary authorities i.e. Attorney General and any other relevant authority.(Chapter Six)
An advanced Human Rights and Equality Commission that will also have power to investigate and summon people involved in Human Rights abuses within the government and with the public. (Article 252)
Equitable sharing of resources between the national government and the county governments through a resolution of ParliamentChapter 12- Part 4.
An Equalization Fund to improve basic access to basic needs of the marginalized communities. (Article 204).
Any member of the public has a right to bring up a case against the government on the basis of infringement of Human Rights and the Bill of Rights – Article 23(1)(2). The courts and government institutions are bound to the Bill of Rights as per the constitution Article 2(1), Article 10(1).
Independence of the judiciary is affirmed Article 160.
An Independent National Land Commission created to Maintain oversight and manage all Land(Public) belonging to National and County Government and recommend policy on addressing complaints from public, advise the National government on ways of improving National and County land management, planning, dispute resolution. Article 67.
Environmental Rights are recognized under Chapter 5(Part 2)
Freedom of media establishment from penalty on expression, by the state on any opinion and dissemination of media. Article 34. This is subject to Article 33.
Supreme Court – highest judiciary organ consisting of the Chief Justice, the Deputy Chief Justice and five other judges. This court will handle appeals from the Appeals and Constitutional courts. It will also preside over presidential impeachment proceedings.
Court of Appeal – will handle appeal cases from the High Court and as prescribed by Parliament. It will constitute not less than 12 judges and will be headed by a president appointed by the chief justice.
An independent Judicial Service Commission has been set up to handle the appointment of judges. They will recommend a list of persons to be appointed as judges by the president (this article will be enforced after the transitional period). The commission will consist of the following:
A Supreme Court judge – elected by members of the Supreme Court to chair the commission
Court of Appeal judge – elected by members of the Court of Appeals to chair the commission
Two advocates, one a woman and one a man, each of whom has at least fifteen years’ experience, nominated by the statutory body responsible for the professional regulation of advocates
Shall be appointed by the president – with approval from the National Assembly
Hold office for only one term of not more than 6 years.
Devolution to the county governments will only be autonomous in implementation of distinct functions as listed in the Fourth Schedule (Part 2). This is in contrast with the Federal System in which Sovereignty is Constitutionally divided between the Federal government and the States. The Kenyan Devolution system still maintains a Unitary Political Concept as a result of distribution of functions between the two levels of government under the Fourth schedule and also as result of Article 192 which gives the president the power to suspend a county government under certain conditions.
A conflict of laws between the two levels of government is dealt with under Article 191 where National legislation will in some cases override County legislation. The relationship between the National Government and the Counties can be seen as that of a Principal and a limited autonomy Agent as opposed to an Agent and Agent relation in the Federal System.
More checks and balances have been introduced as requirements for accountability of both levels of government. The Parliament( Senate and National Assembly) has much discretion on the budgetary allocations to the County Governments. Every Five years the Senate receives recommendations from the Commission of Revenue Allocation (Article 217) and a resolution is passed on the criteria for Revenue allocation.
The National Government is constitutionally barred from intruding wilfully with the county government role and function under the Fourth Schedule. Exceptions may require parliamentary approval (Article 191 and 192). The National Government has a role to play in the County level by performing all the other functions that are not assigned to the County Government as listed on the Fourth Schedule (Part 1).
The new constitution makes important reforms to the previous framework on citizenship, in particular by ending gender discrimination in relation to the right of a woman to pass citizenship to her children or spouse; by ending the prohibition on dual citizenship; and by restricting the grounds on which citizenship may be taken away. The text has been criticised, however, for not providing sufficient protections against statelessness for children or adults.
A person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen (Art 14(1)).
A person who has been married to a citizen for a period of at least seven years is entitled on application to be registered as a citizen (Art 15(1)).
A person who has been lawfully resident in Kenya for a continuous period of at least seven years, and who satisfies the conditions prescribed by an Act of Parliament, may apply to be registered as a citizen (Art 15(2)).
A person who is a citizen does not lose citizenship by reason only of acquiring the citizenship of another country (Art 16) and persons who are citizens of other countries may acquire Kenyan citizenship (Art 15(4)).
A person who as a result of acquiring the citizenship of another country ceased to be a Kenyan citizen is entitled, on application, to regain Kenyan citizenship (Art 14(5)).
Disagreements over reform
After the draft of the constitution was released the type of government which would be implemented with the constitution was a debate amongst the various government coalitions. The two major political parties ,the Party of National Unity and the Orange Democratic Movement disagreed on many points. the greatest discrepancy in opinion was over the nature of the executive branch of the government.
The economic interest represented by the Kenya Private Sector Alliance (KEPSA), openly opposed the new style of government. Eventually the contentious issue of the position of Prime Minister was removed. The remaining contentious issues primarily concern abortion, Kadhi courts and land reform.
Mainstream Christian leaders in Kenya object to the constitution
The Proposed Constitution of Kenya in Sec 26(4) reiterates and reaffirms the current Kenyan penal code by stating: Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law. However, the church insists that the weak drafting of the clause, especially the last two parts, could allow for the same clause to be used to enact laws or justify procurement of on-demand abortion.
The Proposed Constitution of Kenya in Sec 24(4) exempts a section of society that profess Islam as their religion from broad sections of the Bill of Rights that relate with Personal Status, Marriage, Divorce and Inheritance.
The Proposed Constitution of Kenya in Sec 170 Provides for the Establishment of Kadhi Courts.
The Proposed Constitution of Kenya in Sec 170 (2)a Discriminates against all other sectors of society by limiting the Kadhi’s Job opportunity only to persons that Profess the Muslim Religion. The church leaders also insist that for the clarity of the separation of religion and state doctrine and equality of religion, the Kadhi courts should not be in the constitution.
A three Judge Bench of the High Court has since, in a landmark ruling of a case filed six years ago, declared the inclusion of the Kadhi court illegal and against the principles of non-discrimination, separation of religion and state and constitutionalism. A section of the Muslim leadership has vowed to retaliate the ruling by seeking their own judicial declaration that the teaching of Christian religious Education in public school curriculum is illegal. The education curriculum includes religious education syllabus for both Christianity and Islam.
Generally the whole world praised the approach that the Kenyans took to constitutional reform, seeing it as a viable way to keep corruption in check. United States Secretary of State Hillary Clinton said that “I am pleased that they have taken this step, which represents a major milestone.” Other United States diplomats also commented on the unity and meaningful intent which Kenyans were presenting in approaching the reform.
Non-profits concerned with civil society and other reforms also praised the approach. For example, the Africa director for the International Foundation for Electoral Systems said that “The fact that they are bringing in stakeholders to lend their voice and make recommendations will strengthen civil society because they will keep a close eye on the process and, if it is passed, will ensure that it is respected and properly implemented.”
Canadian Foreign Affairs MinisterLawrence Cannon stated: “On behalf of the Government of Canada, I wish to congratulate Kenya on the adoption of its new constitution. This is a significant achievement and an important moment in Kenya’s history. We welcome the leadership shown by President Mwai Kibaki and Prime Minister Raila Amolo Odinga within the Grand Coalition Government in bringing Kenyans together to tackle their future and make progress through dialogue, and in implementing the reforms set out in the country’s Kenya’s 2007–2008 election violence and should reaffirm its complete cooperation and commitment to the ICC.”.
Researchers at the UK-based Overseas Development Institute have praised the 2010 Constitution as a positive step forwards in terms of securing greater equity for women and children in Kenya, highlighting “A new narrative for social justice” and “Institutional reforms to strengthen accountability“. However, they stress that a constitution alone will not generate the desired changes; what matters is how the constitutional commitments are translated into policy and practice.
Constitutional reforms in Kenya
Since Kenya gained independence in 1963, the constitution has been altered many times. During the early years of Kenya’s existence, the constitution was abused by the president and the ruling party to gain and consolidate power. This was achieved through the creation of a single-party state, the abolition of secret ballots, and increasing the power and prestige that comes with the presidential position.
More recently, Kenya’s constitution has become more democratic. The additions of a Prime Minister, two Deputy Prime Ministers, and the abolition of section 2A of the constitution (which had prevented Kenya from being a multi-party state) have all contributed to this reform.
History of reform
Constitutional reform in Kenya has been a major issue since Kenya gained independence. The highlights of the evolution of Kenya’s constitution can be highlighted by the following events:
1976 – Constitutional amendment enabling president to pardon politicians barred from contesting elections over electoral malpractices. Opposition to amendment the leads to the arrest and imprisonment of Philomena Chelagat Mutai and George Anyona.
1982 – Multi-partyism is abolished making Kenya a single party state with KANU as the ruling party. This was followed by the mlolongo system where secret-ballots were no longer used.
1991 – President Moi in December 1991 at a KANU delegates meeting at Kasarani Stadium, repealed Section 2A of the constitution, thereby making Kenya a multi-party state. The change enabled the introduction of term limits to the Presidency.
2000 – Commission for Constitutional Reform of Kenya was set up by President Moi and Prof Yash Pal Ghai was installed as its chairman to spearhead Kenya’s first major constitutional reform.
2005 – In November 2005, a constitutional referendum defeats government’s proposed new constitution (see below).
2008 – In March 2008, the National Assembly of Kenya passed the Nation and Reconciliation Accord Act that introduced a temporary change to the constitution introducing the position of Prime Minister and two Deputy Prime Ministers.
2009 – Parliament prioritises constitution reform through Agenda No. 4. Deliberations on how this reforms will be tackled will be discussed in the second session of the 10th Parliament that began in April 2009.
Previous Proposed Constitution Drafts and processes
The 1969 Constitution which replaced the 1963 independence constitution had already been amended at least 12 times by 2010, and was widely agreed to require a major overhaul to create a more democratic framework with greater oversight of the executive by parliament. The constitution gave the president wide-ranging powers, provided for no prime minister, and was ill-suited to multiparty politics, despite the 1991 repeal of a 1982 amendment that had formalised the one-party state.
The constitutional reform process that began in 2000 led to the adoption of several competing drafts, and a deadlock between government and opposition, until 2008.
2004 Bomas Draft (named after the location of the constitutional reform conference that adopted it) – Proposed transferring most of the powers of the office of the President elected by the people to the Prime Minister that 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 up and down votes by a members of the Senate.
2005 Wako Draft (named after the Attorney General, Amos Wako) – Put forward unilaterally by the government instead of the Bomas Draft, which it rejected. A modified version of the 1969 constitution but got rid of 25% requirement in general elections that requires the winner in the Presidential election to have 25% in at least 5 provinces. The winner would also have to get more than 50% of the vote, else an instant re-run would occur.
Post-2005 Minimal Constitution Reform option – proposed by Prof. Yash Pal Ghai after the failed referendum. His proposal suggested that for political and practical reasons, the best way to achieve constitutional change would be to do it in small phases as opposed to immediate and complete overhaul of the current system.
Constitutional drafts and processes leading up to the adoption of the 2010 text
Following the post-election violence that broke out after the controversial December 2007 elections in which the renewed mandate of President Mwai Kibaki was alleged to be stolen, a team of mediators led by Kofi Annan, proposed by President Kufuor of Ghana, then chair of the African Union, pushed for a renewed constitutional review process. The National Dialogue and Reconciliation process led to an agreement between the parties in February 2008, including the formation of a government of national unity and other reforms. Agenda item 4 in the agreement focused on “Long-Term Issues”, including constitutional and institutional reform.
March 2008 – The parties agree on the principles for a constitutional review process, and Parliament establishes a Committee of Experts on Constitutional Reform to gather views from the public, deliberate on contentious issues and come up with a draft of the new constitution. A Constitution of Kenya Review Act 2008 governs the review process, and enters into force in December 2008. The Committee held extensive public consultations and received many dozens of submissions.
November 2009 – The harmonised draft constitution written and proposed by the Committee of Experts was released on 17 November 2009 and had the following highlights:
Transfer of executive authority from the President to the Prime Minister position who will be the Head of Government.
President will be the Head of State and maintain a more ceremonial role.
Prime Minister will be the Head of Government and will be the head of the party/coalition with a majority in Parliament – He will nominate ministers to the Cabinet.
Half of the ministers in cabinet can be nominated from non-MPs.
The total number of MPs will be increased from 222 to 295.
An upper house, a Senate, will be introduced to represent the regions – the total number of Senators will be 113.
Devolution to the provincial level – current 8 provinces will be now referred to as regions.
The 8 regions/provinces will be subdivided into counties – There will be a total of 70 counties and will each be headed by executives.
Nairobi Province will become a region and have a popularly elected Mayor as opposed to having the city councillors elect the Mayor.
February 2010 – Following further consultation and amendment a revised text is published.
May 2010 – On 6 May, the final text of the constitution is published, for approval by referendum.
August 2010 – The draft constitution text is approved by a 67% margin in a national referendum. The constitution is promulgated on 27 August.
October 2010 – On 5 October, parliament establishes the Constitutional Implementation Oversight Committee (CIOC), which is mandated to oversee the entire implementation process of the reforms required by the new constitution.
The result was a victory for the “Yes” campaign, with 68.6% of voters approving the constitution. The “No” campaign’s main spokesman, Higher Education Minister William Ruto, conceded defeat. The new constitution came into force on 27 August
The 1963 constitution was replaced by a new constitution in 1969. This was amended on several occasions, including a 1982 amendment that led to a coup attempt. The amendment saw the addition of a section 2A to the constitution, making Kenya a single-party state under President Daniel arap Moi. Following protests in the late 1980s, section 2A was repealed in 1991, establishing the multi-party state, and the Constitution has existed unmodified since then. Although this was seen as a step forward, the country retained a reputation for corruption and many Kenyans desired a completely revised document. This came a step closer to reality in 1998 when a law was passed in parliament calling for a review of the constitution. However, little was done to effect this during the remaining years of Moi’s administration.
In the run-up to his victory in the 2002 general elections, President Mwai Kibaki made constitutional reform and the anti-corruption drive a key priority. Despite promises to conduct a review early in the parliament, the new government continued to drag its feet. This was due mainly to the presence of senior officials from the previous regime, whose defection had been vital to Kibaki’s election success, but who were ultimately unwilling to risk upsetting the status quo. Eventually, in 2004, a proposed new constitution known as the Bomas draft was released. This proposed wide-reaching changes to the structure of government, including the transfer of some powers from the President to a newly created post of Prime Minister. Fearing the loss of power, senior government figures watered down the Bomas draft, leading to widespread opposition, civil unrest and the resignation of several senior members of Kibaki’s coalition. The revised document was presented to the people in the November 2005 constitutional referendum, and was defeated.
Following the referendum, politicians that had campaigned against the draft united to form a new party in opposition, known as the Orange Democratic Movement, after the symbol of an orange, which had been present on the referendum ballot papers to signify a “no” vote. Despite splits, the party appeared to be in a strong position going into the 2007 presidential election, but was ultimately defeated in controversial circumstances, leading to the violence of the 2007–2008 Kenyan crisis The peace deal that ended the crisis mandated that the constitutional question be revisited, which led in November 2009 to a new draft. After minor modifications and the passage of the draft through parliament, the referendum date was set for 4 August 2010.
The referendum question was announced on 13 May 2010:
Do you approve the proposed new Constitution? Swahili: Je, unaikubali katiba mpya inayopendekezwa?
Voter’s choices in response to this question were “Yes” or “No”. Due to high rates of illiteracy in the country, the law required that each response was accompanied by a visual symbol to ensure voters were aware of which choice they were making. The symbols chosen for this referendum were colours: green for “Yes” and red for “No”.
To be passed, the referendum required a simple majority overall and at least 25% of votes in five of Kenya’s eight provinces.
The other major source of opposition to the constitution came from the Christian churches, who feared it would lead to the legalisation of abortion, due to a clause permitting abortion for maternal health reasons. The other clause considered contentious by the church was the inclusion of Kadhi courts for settling some civil issues relating to Muslim citizens. Although these courts have been present since pre-colonial times, they were not previously enshrined in the Constitution.
The run-up to the referendum was largely peaceful, although there were isolated incidents of violence, such as when six people were killed and many more injured in June 2010, in a bomb attack on a rally for the “No” campaign in Nairobi. The Uchaguzi organisation was established to monitor the referendum.
The vote took place amid tight security to avoid a repeat of the previous elections’ aftermath. There were particular worries in the Rift Valley Province, where tensions between Kalenjin and Kikuyu populations had caused the worst of the 2007 violence. The vote eventually passed off peacefully, with no reports of violence.
Opinion polls taken between April and July 2010 showed a consistent lead for the “Yes” campaign, with support ranging between 49% and 64%, compared to a range of 17% — 22% for the “No” campaign.
24 April 2010
29 May 2010
4 June 2010
7 July 2010
16 July 2010
23 July 2010
The result was a victory for the “Yes” campaign, with 69% in favour and 31% against on a turnout of 72.2%. Most areas of the country voted in favour of the Constitution, with the notable exception of the Rift Valley Province, where the majority of voters followed the advice of local leaders William Ruto and Daniel arap Moi in voting against. The only area that failed to vote overwhelmingly as predicted was the Ukambani area of the lower Eastern Province, where the “Yes” camp recorded only a very narrow victory despite support from local leaders Kalonzo Musyoka and Charity Ngilu.
As required by the law mandating the referendum, the new Constitution was formally promulgated in a ceremony on 27 August 2010 by President Kibaki. This historic occasion was attended by foreign leaders and dignitaries from Africa and all over the world.
In part due to the ethnic and geographic diversity of Kenyan politics, no singular narrative can explain the reaction of opposition supporters to the announcement of Kibaki’s swearing-in, which was done on December 30, 2007 in the evening. In addition to staging several non-violent protests, opposition supporters went on a violent rampage killing Kikuyus. Raila Odinga encouraged supporters to engage in mass protests which he announced on local television and radio stations, most noticeably in Mombasa, Eldoret, Kericho, Kisumu, Nakuru and parts of Nairobi. Police shot hundreds of violent demonstrators, including a few in front of TV news cameras, causing more violence to erupt.
Targeted ethnic violence (as opposed to violent protests) escalated and at first was directed mainly against Kikuyu people—the community of which Kibaki is a member—living outside their traditional settlement areas, especially in the Rift Valley Province. The violence started with the murder of over 50 unarmed Kikuyu women and children, some as young as a month old, by locking them in a church and burning them alive in Kiambaa village in the outskirts of Eldoret Town, on New Year’s Day. Tensions in the Rift Valley have caused violence in several previous Kenyan elections, most notably in the 1992 Kenyan Elections. This prompted the Kikuyu to start defending themselves which forced the Luos and Kalenjins to stop the killings of the Kikuyus.
In Mombasa, the Kenyan coastal residents took to the streets to protest the electoral manipulations and support their preferred candidate, Odinga. Tensions rose as the landless indigenous Coastal communities felt this was a time to avenge the grabbing of their land by mainly up–country Kikuyu. Looters also struck a number of stores in Mombasa. The slums of Nairobi saw some of the worst violence, some of it ethnically motivated, some expression of outrage at extreme poverty, and some the actions of criminal gangs. The violence continued sporadically for several months, particularly in the Rift Valley.
Former UN Secretary GeneralKofi Annan arrived in the country about a month after the election and successfully brought the two sides to the negotiating table. On February 28, 2008, Kibaki and Odinga signed a power-sharing agreement called the National Accord and Reconciliation Act 2008, which established the office of the Prime Minister and created a coalition government. The power-sharing Cabinet, headed by Odinga as Prime Minister, was eventually named on April 13, after lengthy negotiations over its composition; it was sworn in on April 17.
The post-election demonstration and violence stemmed from a mixture of motives. Some included:
Voting in elections has widely been along ethnic lines in many Kenyan communities
Widespread perception that the count of the presidential election was modified in favour of Kibaki
During colonial times Kikuyu people were displaced from their fertile highlands and after independence they were settled outside their traditional areas especially in the Rift Valley, where the ethnic Maasai people had populated originally before Kenya’s colonization by the British.
A belief among other tribes that the Kikuyu community in Kenya has dominated the country since independence
Reports by international observers about manipulations and admissions by members of the Electoral Commission of Kenya that their staff provided them with incorrect figures have further fuelled this anger. The violence has been directed mainly against Kikuyus, belonging to the same ethnic group as Kibaki.
The violence against Kikuyus occurred all over the country but was higher in areas like the Nairobi slums, Nyanza Province, the Rift Valley, and the Coast, where opposition against Kibaki was particularly strong.The ethnically diverse Nairobi slums have also seen violence by Kikuyu-dominated groups—amongst them the infamous Mungiki—against neighbours hailing from western parts of Kenya
Casualties and displacement
By January 28, the death toll from the violence was at around 1,300. Up to 600,000 people have been displaced. The largest single loss of life was when a church providing shelter from the violence to 200 people was set on fire by rioters, killing 35 people. The people who were sheltering were members of President Kibaki’s tribe, the Kikuyu.
Former Olympic athlete Lucas Sang died under unknown circumstances in a riot at Eldoret on January 1. Politician G. G. Njuguna Ngengi was hacked to death in Kuresoi, near Molo, on January 2,. Marathon runner Wesley Ngetich Kimutai died after he was shot with an arrow on January 19, in the Trans Mara District, becoming the second international athlete to lose his life. On January 20, Donald Odanga, former basketball international was fatally wounded by a stray police bullet. On January 29, opposition MP Mugabe Were was shot to death on his driveway, and on January 31, another opposition MP, David Kimutai Too, was shot by a policeman in disputed circumstances.
On January 13, Human Rights Watch accused the police of having a “shoot to kill” policy, using live ammunition against protesters and looters. According to the police, they have shot looters but not protesters. On January 18, police spokesman Eric Kiraithe said that 510 people had been killed in the violence and that 82 of them were killed by police. According to Kiraithe, the police were acting lawfully and were showing restraint because the protesters were being “used by politicians.”
Later in January, Human Rights Watch accused “ODM politicians and local leaders” of organizing, instigating and facilitating violence against Kikuyus. The BBC reported on March 5, that government officials had met with members of the Mungiki militia, which is banned, at State House to arrange for the militia to protect Kikuyus. The government denied this.
The violence in Kenya has had serious economic ramifications throughout East Africa, particularly for the landlocked countries of the Great Lakes region (Uganda, Rwanda, Burundi, and eastern parts of the Democratic Republic of Congo). These countries depend upon Kenyan infrastructure links (particularly the port at Mombasa) for important imports as well as export routes. Significant shortages of gasoline were reported in Uganda as well as Zanzibar following the elections. The East African Community, despite having election observers in Kenya, did not issue a statement.
A government spokesman claimed that Odinga’s supporters were “engaging in ethnic cleansing“. Odinga countered that Kibaki’s camp was “guilty, directly, of genocide” as he called for international mediation.
2005 Kenyan constitutional referendum
A constitutional referendum was held in Kenya on 21 November 2005. Although many government officials, including PresidentMwai Kibaki, had campaigned for a “yes” vote, the proposed new constitution was rejected by 58% of voters.
Despite the rising number of literate voters in Kenya (74%),ballot papers used symbols as well as text to indicate the choices. Supporters of the new constitution were assigned the symbol of a banana, while the opposition was assigned the orange, ultimately leading to the opposition group being named the Orange Democratic Movement.
The referendum divided the ruling National Rainbow Coalition into camps for and against the proposal, as well as spurring violence between Orange and Banana supporters; nine people died during the campaign period spread over several months, but the process itself was peaceful.
During the drafting of the constitution there were disagreements over how much power should be vested in the President, with many believing Kibaki was attempting to garner dictatorial powers. In previous drafts, those who feared a concentration of power in the president added provisions for European-style power-sharing between the President and Prime Minister. However, the final draft of the constitution retained sweeping powers for the Head of State.
The issue of land reform was also prevalent due to the frequency of land disputes between ethnic groups. The draft constitution sought to deal with this and included measures against the ownership of land by foreigners (European immigrants and their descendants own numerous large tracts of land in Kenya). The constitution would have also permitted women to own land for the first time, although only through inheritance, and sought to establish a “Land Commission” that would manage and oversee the redistribution of land (the formation of a commission was included primarily as a means of preventing the gifting of land by government officials in return for favours). The commission would also serve as a human rights watchdog over land disputes and would attempt to give back land to ethnic groups and individuals who had unfairly lost land in the past.
The constitution sought also to classify land as either government, community, or individual property. Many had been alarmed by a more radical provision which would allow the land commission to redistribute land that was “idle”—not being used to its fullest potential—to the landless and squatters. This met the most resistance amongst absentee land owners and nomadic groups such as the Maasai, whose land could potentially be repossessed.
Religious courts were also an area of concern prior to the voting. Since Islamic religious courts already existed in Kenya, demands for courts specific to other religions (mainly Christian and Hindu) were adhered to and the draft constitution provided a legal basis for a number of religious judiciaries.
Because Kibaki so vigorously promoted the new constitution and based his election campaign around it, many voters used the referendum merely as means to voice their approval or disapproval of the Kibaki government. This would become the sentiment on which the victorious Orange camp would base their demands for snap elections, claiming the government had lost its mandate to rule as a result of the “no” vote by the people.
There was a single opinion poll taken by Steadman International, which showed 42% against, 32% for and 22% undecided, with 4% refusing to answer.
Are you for or against the ratification of the proposed new constitution?
After voters rejected a draft constitution, President Kibaki dismissed his entire cabinet and deputy ministers, moving quickly to reassert his political authority. Kibaki said of his decision, “Following the results of the Referendum, it has become necessary for me, as the President of the Republic, to re-organise my Government to make it more cohesive and better able to serve the people of Kenya.”
Although the dismissal of individual officials is commonplace in government, the dissolution of the cabinet in its entirety is rare. The only member of the cabinet office to be spared a midterm exit was the Attorney General, whose position was constitutionally protected against Kibaki’s presidential powers. Vice-PresidentMoody Awori retained his post; however, he was deprived of his position as Minister of Home Affairs. The dismissal of the cabinet followed a seven-month period in which its members never actually met formally, instead preferring to make political statements through the media. Kibaki pledged to appoint a new cabinet within two weeks, prior to which he would be managing the nation’s affairs single-handedly.
The cabinet had been increasingly divided for an extended period of time, and the issue of the constitution had created further fracturing. Because the National Rainbow Coalition was a grouping of several smaller parties (the Democratic Party, FORD–Kenya, Liberal Democratic Party, and NPK), members of the Kibaki government maintained differing agendas and loyalties, often being more loyal to their party than to the coalition. Corruption charges and investigations into the affairs of the cabinet had gone undisciplined by the president, who had been criticized for not reeling in his officials.
The response to the sacking of the cabinet and ministers by Kenyans, as a result, was overwhelmingly positive. However, the opposition spearheaded by the Orange Democratic Movement (whose key members consist of a number of MPs from the now moribund cabinet) expressed that Kibaki had not gone far enough and a dissolution of both the legislature and administration was necessary. This combined with the referendum’s failure and Kibaki’s inability to deliver on his campaign promises caused an increase in demands for new elections for the entire Kenyan government by the opposition leaders.
After rallies on 27 November 2005 by the opposition demanding new elections as soon as possible, the Kenyan government outlawed all demonstrations in support of new elections. The Kibaki government dismissed the idea of early elections, and claimed that such gatherings were a “threat to national security”. The opposition encouraged nationwide pro-election demonstrations and scheduled a rally led by the Orange team at Mombasa Municipal Stadium for 10 December. The government called in police to seal off access the stadium and prevent the rally from taking place. All other pro-election rallies throughout the country were suppressed by law enforcement. Kibaki postponed the reconvening of the Legislature, which was scheduled to resume its affairs on 6 December.
As promised, on 7 December 2005 President Kibaki announced his new appointments for his cabinet and empty minister positions. However, almost immediately a large portion of the appointees turned down the job offers; at least 19 MPs are said to have rejected the appointment. Many of those who turned down positions were members of FORD–Kenya and the NPK, who constituted the political backbone of Kibaki’s regime. Both FORD–Kenya and the NPK formally withdrew their support for the Government, resulting in the rejection of the high-level posts by their MPs. Many cited a failure on Kibaki’s part to consult with other parties in the coalition regarding the make-up of the new cabinet as the principal cause for the rejections. On 9 December 2005, Kibaki swore in the new cabinet, made up almost exclusively of his closest political allies.
Constitution of Kenya (1963)
Kenya’s 1963 Constitution, also called the Independence Constitution, was based on the standard “Lancaster House template” used for the former British colonies in Africa, was subject to early amendments, and was replaced in 1969
In 1964, the Constitution was amended to make the country a republic with the President as both head of state and head of government, and in 1966, the membership of the Senate and House of Representatives was combined to form a unicameral National Assembly.
The Kenya African National Union (KANU) and the Kenya African Democratic Union (KADU) were the two major political parties in Kenya during the early 1960s, KANU being the more popular of the two. The KADU and the KANU had opposing views on government structure and as both parties were involved in the development of the Independence Constitution, this made the process more difficult as evident throughout the Independence Conferences.
The KANU were pushing for a largely centralized government structure where power would be concentrated at the center while the KADU were proponents to regionalism, where power would vary distributed across a variety of geographical regions.
The Independence Conferences
Between the years 1960 and 1963, three Independence Conferences, also named the Lancaster House Conferences (Kenya), were held between British officials, European settlers, and a Kenyan delegation at the Lancaster House. These conferences were instrumental in setting Kenya up for independence from the British and for uniting the political factions in Kenya. The Independence Conferences represented two things. One, that there was a great imbalance of power that Britain still had over Kenya even at the brink of independence and two, that there were deep internal divisions between Kenya’s political factions that posed a threat to the stability of the fledgeling independent state.
Before “setting Kenya free” the British wanted to ensure that their interests were still a part of the decision making system in Kenya. The KANU and KADU had continual disagreements over the course of the first two conferences which prevented any true progress from being made.
Independence Conference of 1960
At this conference that it was decided that Kenya’s constitution would be based on the Westminster model. Both the Kenyan delegation and British government brought demands to the table which were not agreed on and so this conference ended with no formal decisions made.
Independence Conference of 1962
Political animosity continued between the KADU and KANU. Their disagreements also took attention from the needs of native Kenyans who were not well-represented at these conferences.
Independence Conference of 1963
Jomo Kenyatta, First President of Kenya
Jomo Kenyatta became the Prime Minister of Kenya after the 1963 general election which resulted in the KANU being the dominant political party in Kenya. As a result, the political tensions that had been present at previous Independence Conferences were absent at this final conference The Independence Conferences took place between September 25 and October 19, 1963 and the Independence Constitution was finally completed On December 12, 1963 Kenya officially declared its independence.
As the Independence Constitution was based on the Westminster system, it followed the basic structure of having a legislative, executive, and judiciary branch. The Constitution also outlined a Bill of Rights
Chapter 1: Citizenship
Chapter 2: Protection of Fundamental Rights and Freedoms of the Individual
Chapter 3: The Governor-General
Chapter 4: Parliament
Chapter 5: Executive Powers
Chapter 6: Regions
Chapter 7: Special Provisions Relating to Legislative and Executive Powers of the Centre and the Regions
Chapter 8: Finance
Chapter 9: Police
Chapter 10: The Judicature
Chapter 11: The Public Service of Kenya
Chapter 12: Land
Chapter 13: Local Government
Chapter 14: Alternation of Regional Boundaries
Chapter 15: Miscellaneous
Bill of Rights
The compulsory acquisition of the property of any individuals must have public justifications.
The justification for the acquisition of the property of another must be reasonable.
Those who have their property taken are entitled to full compensation for their loss.
The Kenyan Constitution states that no law may be made to discriminate against another nor may any person discriminate against another and claim it was justified through law or governmental authority
However, for all that it says against discrimination, the Constitution does permit some forms of discrimination A distinction was made between legislative action and administrative action, and the former allowed discrimination in certain cases
The idea of citizenship was a complicated issue because at the time of their independence, there were many different immigrant communities living in Kenya. Immigrants in Kenya were unsure if they wanted to be citizens of Kenya and Kenyans weren’t sure that they trusted the allegiances of immigrants enough to make them dual citizens.
In the end, most indigenous people automatically became citizens in Kenya. For anyone else to become a citizen automatically, they had to have been born by Kenya’s Independence Day, had one parent born in Kenya, and a citizen of the United Kingdom.
Kenya’s legislature was bicameral with 41 Senators in the Senate and 129 Members in the House of Representatives. With the creation of the third amendment, the legislature became a unicameral National Assembly.
In 1963, the head of state was Queen Elizabeth II who was represented through a Governor-General in Kenya. This Governor-General could then select a Prime Minister from whichever political party had the majority in the House of Representatives.
Members of the judiciary were selected by the Judicial Service Commission. A Public Service Commission was created to establish a way for each of the six Regions to have representation in government. Primary function was to uphold the Constitution.
A highly contested section of the Constitution. Kenya essentially had two sources of power, central and regional, but power from the central government was always seen as a threat to the power of the regions. Minority groups in Kenya were able to petition for provisions to be added to the constitution in order to preserve some of their power. Under the Independence Constitution, seven regions were defined, each with their own legislature and Executive
Between the years 1964 and 1969, the Independence Constitution had 10 amendments added to it.
Established Kenya as a Republic with a president and set up structures for succession.
Began stripping power from regional governments.
Completed the destabilization of regionalization and weakened the amendment process for the constitution.
Enforced attendance requirements for Members of Parliament and gave the President the power to appoint and fire public officials.
Outlined what would force a Member of Parliament to give up his position.
Gave the President increased power while removing the power in other branches to check the executive.
Established a unicameral legislature.
General Election established at the way to elect a President.
Brought together previously listed amendments.
Reception of the Independence Constitution
From the start of the Independence Conferences in 1960, Kenyas were averse to the idea of basing their constitution on the Westminster model. Kenyans struggled to see how Western forms of government would work with traditional Kenyan systems. It was clear that although this was named the Independence Constitution, the British still had a high level of control over their former colony Additionally, while the interests of the KANU and KADU can be seen throughout the Independence Constitution, the concerns of minority tribes and people throughout Kenya were rarely considered. This led to violence and unrest from minorities like the Somalis and the Arabs in 1963.
The KANU, supporters of a central government, openly opposed the regional aspects of the constitution. Their lack of support toward upholding the constitution as a whole served to weaken it as the KANU worked to strip power from that section
Considering that at the time of the Independence Constitution’s completion Kenya had only been independent for around ten years, it may not be surprising that most Kenyans did not regard the Constitution as an especially important political document. When it came to political issues, Kenyans would instead defer to other ways of resolving conflicts. It would take several more years and the establishment of later constitutions for it to hold a higher level of legitimacy for Kenyans.
Transition from Independence Constitution
Since the first Lancaster Conference, it was apparent that the Independence Constitution would not be a lasting document. Its foundation in Western government structures, overly complex and difficult to understand provisions, and lack of Kenyan representation made the 1963 Constitution something that majority of Kenyans could not agree on. In 1969, a new constitution was created which consolidated all the amendments to the 1963 constitution and clarified much of what was confusing before.
The Amendments of the Constitution of Kenya from 1963 to 2019