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Kenya’s Quest for a New Constitution: the Key Constitutional Moments

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Kenyans go to the polls on August 4th 2010 to vote on the fate of the proposed new constitution. This will be the second time in recent history that through a national Referendum, voters will be asked to vote for or reject the proposed document. A rejection of the constitution will signal a continuation of the current defective document that was crafted in Lancaster, England, under the British colonial tutelage. As the campaigns for and against the proposed new constitution move into top gear it is important to step back and retrace the chronology of key constitutional moments in Kenya.


In 1963, Kenya gained political independence with the founding father, the late Jomo Kenyatta as its prime minister. The 1963 constitution provided for a parliamentary multiparty system of government. In 1964, the constitution was amended to abolish the post of prime minister. Consequent to this constitutional change, Jomo Kenyatta became Kenya's first president. In the same year, parliament amended the constitution abolishing the two chamber parliament i.e. abolishing the House of Senate. The country thus moved from having a bicameral parliament to a unicameral parliament with a strong central government. Significantly, it is in the same year that the principle of Majimbo (devolved government) was repealed. The abolition of both the senate and the principle of devolution planted the seeds of a highly centralised and unaccountable executive.

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Between 1964 and 1978 a series of constitutional amendments were affected by the weakened parliament under political pressure from the increasingly powerful executive. During the period of the Kenyatta regime, a series of constitutional amendments were instituted that strengthened the office of the President, abolished and emasculated key institutions such as the Parliament, the civil service, the Police Authority, other constitutional offices and more significantly diluted the Bill of Rights. Kenyatta's regime ended in August 1978. Daniel arap Moi who was to rule Kenya with an iron fist for just over 24 years succeeded him.

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In 1982, following an unsuccessful military coup attempt, Section 2(a) of the constitution was amended by Parliament. Kenya became a de jure one party state with the ruling party, KANU (Kenya African National Union), as the only legal party in the country. It is subsequent to this piece of constitutional amendment that the country became familiar with political assassinations; torture chambers became tools for political control and fear and patronage became the official strategy of the only political party, KANU.


In December 1991, Section 2(a) of the Constitution was repealed under mounting pressure within the country and from the international community. Political pluralism was legalized and with it, multi‐party politics was once again possible in Kenya. The amendment of this Section 2(a) of the constitution also introduced a maximum two five-year term limits to the Presidency.

 

In 1997, the Constitution of Kenya was once again amended through political negotiation by the multi-party parliament. The Inter‐parties parliamentary group (IPPG) constitutional amendment provided for, politically agreed minimum reforms that were aimed at facilitating a level playing field for the 1997 elections.

 

In 2000, the Constitution of Kenya Review Commission (CKRC) was set up and Prof. Yash Pal Ghai installed as its Chairman to spearhead Kenya's first comprehensive constitutional reform process. The CKRC spent time collecting and collating the views of Kenyans in a process that lasted close to two years. The CKRC proceedings led to the convening of the National Constitution Conference that was charged with debating and writing of a new constitution.

 

Between 2000 and 2005, the National Constitutional Conference known as the ‘Bomas Process' resulted in the so‐called ‘Bomas Draft Constitution'. This draft, among other things provided for the transfer of most of the powers of the Office of the President (elected by the people) to the Prime Minister (elected by Parliament) in addition to introducing checks on executive appointments and introducing a radical devolution structure.

 

In 2005, unhappy and at the behest of the government, Kenya's Attorney General Mr. Amos Wako, published a counter-proposal to the Bomas Draft. This document, ‘the Wako Draft' was a slightly modified version of the current constitution. This draft preserved the centralization of executive powers while significantly failing to address the question of devolution that had been attended to more comprehensively in the Bomas draft. The citizenry largely understood the presentation of a contrary draft by the government as a form of impunity and political arrogance on the part of the government.

 

In November 2005, in a historic Referendum, the first held in Kenya, the Wako Draft, which had been adopted by the government and presented to the voters, was rejected by a majority of Kenyan voters. The divisive campaigns that led to the defeat of the government preferred draft constitution provided the setting for the post election violence of 2007/8. December 2007, witnessed Kenyans go to the polls to elect the 10th Parliament. The outcome of the presidential elections was disputed and the country plunged into violence that led to over 1500 deaths and 350,000 internally displaced persons.


In March 2008, following protracted negotiations between the two main political factions involving external mediators, the National Assembly of Kenya passed ‘The National Accord and Reconciliation Act', and a temporary change to the constitution that introduced the position of Prime Minister and two Deputy Prime Ministers. The introduction of two centres of power i.e. the Presidency and the Office of the Prime Minister was meant to heal the country emerging from 3 months of fractious and violent episodes. Both the president and the prime minister serve in the Government of National Unity (GNU).


In 2009, the Kenyan Parliament prioritized constitutional reform and a ‘Committee of Experts' on constitution writing was appointed to harmonize the various constitutional Drafts proposed over the years. The Committee of Experts completed this task in December 2009 and presented a harmonized draft constitution to parliament. In April 2010, parliament failed to effect over 300 proposed amendments to the harmonised proposed draft constitution. Having failed to find political unity to effect these amendments, by a unanimous majority, parliament approved the Committee of Experts draft on April 1st 2010.

 

In May 2010, The Attorney General officially published the proposed constitution. The publication of the draft constitution was followed by intense civic education period that was planned to last until the end of July 2010.


On the 4th of August 2010 the proposed constitution will be subjected to a nation‐wide referendum. The second time in recent history, voters will be asked to vote ‘yes' or ‘no' to the following question: "Do you approve the proposed new constitution"? When Kenyans go to the polls on this day they will be alive to the reality that the quest for a new constitution is one which has taken decades. It is a journey that has cost the lives of many Kenyans as well as taxpayers billions of shillings. When they cast their votes they will be making a big decision: whether to break free from the current constitution drafted under colonial tutelage in Lancaster and which has been subject to extensive amendment or to create a new Republic under a new constitutional dispensation written by their own in their own country, in their own times and moments. Which of these Kenyans will chose, will only be known after 4 August.


Written by: Isaack Otieno- Programme Head Corruption and Governance, ISS Cape Town

 

 

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