A Brief Constitutional History

*We bring you part three of the series of discussion on the constitution-Editor

On becoming independent in December 1963, Kenya got a new constitution, negotiated between Kenyan political parties and the British government. It established a constitutional order that was very different from the colonial system. It provided for a democratic and accountable system of government. The national government was based on the principles of the parliamentary system, with executive powers to be exercised a cabinet headed by a prime minister (normally the leader of the largest party in the legislature). The head of state was the governor-general with limited but significant powers, to maintain the principles of parliamentary government.

There were also seven regions, with their own executive and legislature which had authority over a number of matters, including land, local taxation, police, law and order, and other issues of local importance. The powers and institutions of regions were protected by the constitution. The reason for regional governments was to bring power closer to the people and safeguard the country’s ethnic diversity, particularly the rights of minorities. A significant element of devolution was the protection of the land rights of communities. There was a complex system of land ownership and regulation, in which county councils had special responsibilities in relation to community land designated as trust land.

In order to protect this form of devolution, a second chamber of the national legislature, the Senate, was established, with one representative from each of the 41 districts which existed then. It had very significant powers, including a key role in the process for the amendment of the Constitution. For the amendment of some provisions, the majority required in the Senate was as high as 90%.

The Constitution provided for a public service which was largely independent of the executive, managed by the Public Service Commission. It also included important safeguards for the independence of the judiciary, with a Judicial Service Commission responsible for appointments and dismissal of judges. Appeals went to the East African Court of Appeals, over which no national government had control, and finally to the Privy Council in London - completely independent of the Kenya government. The independence of the auditor general and the attorney general was also guaranteed. More importantly, the operational autonomy of the police was established, prohibiting political directives to the police.

The Constitution contained a Bill of Rights which protected the essential political and civil rights of citizens. However, it allowed a large number of restrictions on these rights; and it did not include socio-economic rights. Otherwise there was no statement of national values or principles of state policy (it did not even have a preamble!).

Fundamental amendments

The independence constitution did not survive for long. Kenyatta’s government promoted fundamental changes to it on the first anniversary of independence. In a short time, his government changed the system of government to presidential, combining the offices and powers of the governor-general and prime minister in the president, creating a powerful new post, which in effect weakened the legislature. The second major change was the abolition of regional governments leading to a highly centralised government at the national level. The Senate was also abolished, reducing checks on the administration. The land chapter was reduced to a few provisions on trust land, giving the national government increased control over land matters. Both the civil service and the police were brought under executive control. Appeals to the Privy Council were abolished, and the East African Court of Appeals ceased to exist with the breakup of the East African Community.

The dismantling of the democratic and accountability mechanisms continued under President Moi, who reduced Kenya to a one party state, and abolished the security of offices of the auditor-general, attorney-general and judges, so that the president could dismiss them at will. Many amendments under both presidents were rushed and often all stages were disposed of in one day. Fundamental rights were systematically violated, and courts provided no effective protection. In these ways the careful sharing and balancing of power and the safeguards of citizen’s rights and freedoms were done away with, giving rise to destructive ethnic politics and sowing seeds of disunity.

In the 1990s, with the end of the cold war and the loss of interest of the West in supporting Moi’s regime, some of these amendments were repealed, and some laws which had been used to harass and penalise the regime’s political opponents, such as detention without trial, were amended or repealed. But by now people had lost respect for the constitution and confidence in the political system. Few public institutions enjoyed legitimacy and most lost the ability to resolve differences among the political parties or the people or develop consensus. There was little accountability of the president, ministers or senior civil servants. Rights continued to be violated, and corruption, which had started at the very beginning of Kenyatta’s rule, continued to flourish.

Consequences

Corruption; poverty and disparities of wealth and opportunities; exclusion and intensification of ethnic discrimination and tensions; violation of human rights; land related problems; violence in and militarisation of politics; lack of human security; unchecked powers of security forces; all these were the consequences of the distortion of the constitution.

These, and other negative social and economic developments, impoverished numerous families and communities, and led to huge disparities between them and few rich families, were attributed by people and commentators alike to the absence of accountability and the rule of law.

More specifically, the major consequences were:

• The centralisation of power in the hands of one person, the president. This resulted in lack of democracy and accountability, patronage politics, ethnicisation of politics (as each community focussed on this one important political prize).

• The lack of accountability of the government and the near impossibility of holding the president to lawful acts and procedures led to massive corruption, with impunity for him and his cronies. The corruption drained away billions of shillings which belonged to the state on behalf of the people and is a primary cause of the poverty, under which the majority of Kenyans live.

• The concentration of power in the president enabled him and the attorney general to direct the judiciary as to how to decide cases in which the president or his friends had an interest. The Attorney-General’s powers of prosecution, although meant to be exercised independently, were in practice used to further the interest of the president and his friends.

• There was massive violation of the rights of Kenyans for which there was no redress judicially or administratively.

• The repeal of the 1963 constitution provisions on regional governments and the gradual removal of the administrative and financial powers of local government weakened democracy and participation at district and sub-district levels. Operating through the Provincial Administration, the president acquired control over much of the country in matters that properly belonged to provinces and districts.

• The control of land by the government and county councils, and in particular the president’s power to grant land without any legal process or consultation, led to massive abuse, illegal transfers of land, dispossession of many of their land, and began the division between rich and poor Kenyans.

• There are no provisions for parliamentary civilian control over the security forces which have grown in numbers and in the quantity and quality of weaponry. The independence of the police guaranteed in 1963 was removed. The result was that the president and his government had complete control of the armed forces, and often used (and use) them to repress the people. Consequently the public has lost confidence in the impartiality and competence of the armed forces.

• All these developments produced distrust of government, and distrust and conflict among ethnic communities, as politicians played upon ethnic fears and promoted ethnic animosities. This has greatly weakened national solidarity and unity, threatening the very integrity of the country.

People struggled for constitutional reform because they considered that only in this way could the negative consequences of the amendments under Kenyatta and Moi could be removed.

Constitutional Reform Agenda

The struggle for constitutional reform led to a consensus between Moi’s government and other political parties and civil society (including on major religions) on the process and the agenda for reform which was given effect to in the CKRC Act of 2000. The reform agenda there was repeated in the 2008 Constitution Review Act. All organs of review, then and now, are bound by the constitutional principles that make up the agenda.

The important goals of review are:

• Peace, national unity and integrity of the country

• respect for ethnic and regional diversity, and inclusion of all communities in institutions of the state

• The well-being of the people and the basic needs of all

• democracy, good governance and the Rule of Law (protected in part by the separation of powers and checks and balances)

• Devolution of powers to facilitate the participation of people in the governance of the country (and presumably to provide for sharing of power, and effective government at local levels)

• Full participation of the people in the management of public affairs

• Human rights (especially equality and non-discrimination), as essential to economic, social, religious, political and cultural development

• Gender equity, giving women equal rights to men, and fair representation in state institutions

• Independent institutions that review the abuse of power and violation of rights, and provide redress. Independent institutions also for politically sensitive tasks, like managing the electoral process Competence, accountability, efficiency, discipline and independence of the judiciary.

The 2000 and 2008 processes both emphasise the importance of transparency, and participation of and accountability to the people. They require the organs of review to reflect the people’s wishes in the constitution. They also emphasise decision making by consensus (in order to resolve national differences and to create solidarity). Only if consensus is not possible should decisions be made by a two-thirds majority. Both the CKRC and the Committee of Experts followed these requirements faithfully. In both cases the people have expressed their views freely and they have been analysed with care. We are now at the final stage of a long drawn out process. That stage is the referendum to be conducted on 4th August 2010.

*The analysis is courtesy of a team of lawyers led by an experienced Constitutional Lawyer of International Repute

Disclaimer: Views expressed in this section do not represent the opinions of CISA.