International Institute for Justice and Development


Kenya’s New Constitution: Erasing the Imperial Presidency

Posted on September 22, 2010

By: Zareen Iqbal

In 1963, in tandem with achieving independence, Kenya adopted its first national constitution. Formed with the assistance of Kenya’s former colonizers, Kenya’s first constitution was fashioned mostly upon the British system of governance and ultimately centralized government power to serve the needs of a small political elite. Several elements of Kenya’s original constitution were seriously flawed, in particular articles regulating land distribution and use. In addition, subsequent amendments concentrated executive power within the office of the president, which led to the establishment of an imperial presidency and a de jure one-party system. After the 2007 post-election violence, an agreement was made amongst the feuding political parties to revise Kenya’s constitution, specifically to reduce the authoritarian powers of the president, and on August 4, 2010, a strong majority of Kenyans rallied behind a newly proposed constitution, designed to do just that. Over 67 percent of the voting population approved the new constitution, whose implementation is expected to produce a fairer system of governance and finally establish and protect multi-party democracy in Kenya.

Although Kenya’s original constitution was initially designed to promote a part democratic, part socialist government system in which the authority of the three branches of government (executive, legislative and judicial) was clearly delineated, in the decades after its passing, presidential authority grew relentlessly, as each subsequent president sought to tighten his control and increase his influence. Unfortunately, this occurred at the expense of the other branches of government, which instead of serving as a check upon executive power, served only to facilitate its abuse. When Kenya’s constitution was first formed in 1963, executive power was shared amongst two posts: a prime minister and an executive governorship, or governor-general (a British subject acting on behalf of the Queen of England, who still exercised executive powers). In addition, the constitution called for a multi-layered legislative structure in the form of a bicameral parliament. However, in 1964, after Kenya was officially declared an independent state, then Prime Minister Jomo Kenyatta, dissatisfied with a restrictive executive, lobbied parliament to amend the constitution to abolish both the governorship and the post of Prime Minister and replace them with a single presidency. Kenyatta argued that traditional Kenyan society rejected the notion of dual executive authority. He claimed that Kenyans were more apt to support strong centralized leadership, which emulated tribal structure. In addition to requesting a transition to a presidency, Kenyatta also called for the elimination of the Senate. Both requests were accepted by Parliament, which passed an amendment establishing the presidency (and Kenyatta as President) and abolishing the Senate, which left Parliament the sole legislative body.

Another extremely significant event to occur in 1964 was the voluntary dissolution of the Kenya African Democratic Union (KADU) party, the only other major political party in Kenya at the time. The KADU party was the only opposing force to Kenyatta’s Kenya African National Union (KANU) party and to his pursuit of a unitary government; KADU fervently supported a federal system, with a weak central government. The KADU party ultimately feared the dominance of one ethnic group, in particular the Kikuyu, which was one of the largest Kenyan communities (KANU was predominantly comprised of Kikuyu). KADU’s dissolution was largely the result of an aggressive campaign by the President and his cohorts to secure KANU’s political hegemony. After KADU disbanded, former KADU party members, including future Kenyan President Daniel Arap Moi, colluded with the KANU-dominated government, which included future president, Mwai Kibaki, to increase executive power and destroy other vital governmental institutions—a move that everyone involved would make certain to benefit from in the following decades.

After 1964, with Kenyatta at the helm, key players within the Kenyan government, including Moi and Kibaki, conspired against the constitution, and consequently their own people to make major governmental changes that furthered their own political objectives. To further advance executive control, the constitution was amended again; this time to prevent regions from raising their own funds. This guaranteed each region’s dependency upon the central government for resources, and ultimately made each region slave to the central government’s bidding. The same amendment gave the president the power to appoint federal judges without approval from any other governing body. Then in 1966, another constitutional amendment was passed, barring candidates and sitting MPs (Members of Parliament) from legislative office, if they had been jailed for six months or more, regardless of the charge. This heightened fear amongst MPs of being arbitrarily arrested and subsequently losing their position for attempting to challenge the new order. These fears were certainly warranted given the President’s newly established power to detain anyone without charge or trial.

Kenyatta’s creation of a despotic presidency was not without opposition, however. Vice President Jaramogi Oginga Odinga, who was from the Luo ethnic group, resigned from his position in 1966, in protest of the central government’s tyrannical takeover, and formed a new political party, the Kenya’s People Union (KPU). Unfortunately, the KPU struggled tirelessly against the regime to no avail. Odinga was arrested in 1969 after a public physical altercation between himself and Kenyatta and their supporters, which resulted in the deaths of eleven people; KPU was consequently outlawed. After being jailed for two years, Odinga was released only to remain obsolete until Kenyatta’s passing in 1978, at which time he re-entered politics, but again struggled to gain relevancy amidst Kenyatta’s continued autocratic policies. Odinga tried once again to establish another opposition political party in 1982, the National Democratic Party (NPU), but President Moi, along with his Vice President, Mwai Kibaki, immediately acted to prevent this by passing perhaps the most damaging amendment to the constitution as of yet: an amendment that made KANU the only legal political party. Multi-party democracy was now officially dead, and with individuals also prohibited from running as independent candidates, autocratic rule was now too firmly instituted. Odinga’s party had no choice but to disband, and after a failed coup attempt, he was once again arrested. Several years later in 1991, Odinga, along with five other major opposition leaders, created FORD, the Forum for the Restoration of Democracy, a new political party. Moi immediately outlawed the party and had its leaders arrested, but after pressure from the international community (US, UK, and Scandinavian countries), he was forced to release them and to permit FORD to operate. In addition, at a special meeting of KANU soon afterwards, the government agreed to allow a multi-party political system.

Odinga’s struggle is highly significant as it exemplifies the larger story of over thirty years of political repression and the destruction of democratic governance in Kenya. In addition, Odinga’s struggle, which brought about immense achievement in the form of multi-party politics, did not end with his death, but continues through his son, current Kenyan Prime Minister Raila Odinga, perhaps the most popular politician in all of Kenya at the moment. It was his party, the ODM (Orange Democratic Movement) that finally defeated the monster that had become KANU, or now PNU (Party of National Unity), forcing Kibaki to accept a power-sharing agreement whose eventual outcome would be a new constitution and the long-anticipated end of the imperial presidency. After extensive vetting sessions that involved a host of civic groups and organizations, as well as expert advisors and the international community, a new constitution was finally presented to the public for its approval, which it obtained by an overwhelming majority on August 4th.

The primary goal of the new constitution was to drastically reduce the powers of the executive arm of the government. To do this, the new constitution abolishes the post of prime minister (created as part of the 2008 power-sharing agreement) and also significantly reduces the power of the president. The president can now be impeached by Parliament, which will now consist of both a National Assembly and a newly formed Senate, and all major presidential appointments, from the cabinet to the judiciary, must now be approved by Parliament. In addition, the president’s cabinet will be reduced by half to twenty-four members. Also significant, the president can now appoint non-parliament members to cabinet positions, a move meant to reduce corrupt political patronage. Furthermore, the president can no longer suspend or dissolve the National Assembly; its members will be elected to fixed five-year terms. The president will also no longer exercise any control over the country’s Election Commission, which will now be completely independent. To provide stronger checks upon the executive, the new Senate will also have the power to summon cabinet members and senior civil servants for hearings. Also, to lessen the executive’s fiscal control over the country, 47 regional governments, or counties, will now all be guaranteed revenue from the federal government, addressing long-standing inequities between Kenya’s 42 ethnic groups. Fifteen percent of the national budget will now go directly to the counties, to be allocated equitably. Proponents have argued that this is likely to reduce ethnic favoritism and corruption at the federal level. Ethnic groups will no longer have to rely solely upon the election of ‘one of their own’ to obtain desperately needed funds.

The new constitution not only breaks the grip of the executive, but actually places more power directly into the hands of Kenyan citizens. For instance, although the exact procedure for doing so has yet to be laid out, voters will now exercise the right to ‘recall’, or oust their MPs, if dissatisfied with their performance. Perhaps most significant, an impressive Bill of Rights will now formally be enacted along with the constitution. This new Bill of rights includes protection of political, economic and social rights; it also specifically requires the government to address the needs of more vulnerable societal groups, including the elderly, women, persons with disabilities, children and members of marginalized communities. Within the new bill, the following rights are outlined: the right to life (the bill determines the beginning of life to be conception, but does add a clause that permits abortion under certain circumstances); equality and freedom from discrimination; human dignity and security; freedom from slavery; the right to privacy; freedom of belief and religion; freedom of expression and media; and a host of other rights, including protection of property and consumer rights. Although the bill grants the government limited authority to curb certain rights under special circumstances, it is extremely explicit in outlining the requirements and/or justification for any legislation restricting such rights. In addition, it completely prohibits the government from limiting or removing the following rights at any time or under any circumstance: freedom from torture and cruel and degrading punishment; freedom from slavery or servitude; and the right to fair trial and habeas corpus.

One major marginalized group that has long been denied any form of civic participation is the Kenyan Diaspora. Kenyans living abroad, whether they have foreign citizenship or not, have been deprived the opportunity to participate in national elections. Under the original constitution, those who obtained foreign citizenship automatically lost their Kenyan citizenship; dual citizenship was strictly prohibited. In addition, the law restricted Kenyans from voting in national elections if they did not meet specific residency requirements. These restrictions were put in place to essentially emasculate educated and affluent Kenyans living abroad, preventing them from challenging the Kenyan political establishment. Under the new constitution, dual citizenship will now be permitted and residency restrictions have been lifted. With the Kenyan Diaspora already contributing approximately $611 million in remittances to the Kenyan economy annually, it will now also have the opportunity to engage directly in its country’s political process. In fact, Diaspora groups, the US-based Kenyan Community Abroad (KCA) in particular, took an active role in the vetting process of the new constitution, advocating strongly for recognition of their rights as Kenyans. It is hoped that increased political involvement on their part will strengthen the merit of future campaigns and elections.

Finally, the new constitution promises real land reform, which is the primary reason for the ‘No’ campaign’s existence. The ‘No’ campaign, which is the movement against the new constitution,  was initiated and fueled by powerful politicians and wealthy landowners, including former President Moi and current Education Minister William Ruto, who oppose any land reform that may jeopardize their own holdings, often obtained through corrupt or unfair means. Land distribution in Kenya has been an extremely contentious issue since independence, when Kenyan politicians colluded with their former colonizers to ensure that land remained in the hands of affluent settlers and the wealthiest of Kenyans. In the original constitution, the new Kenyan government was afforded the power to distribute land as it pleased, and subsequently proceeded to abuse this power by disproportionately awarding land to politicians and the wealthy—with the worst of this land grab by the country’s elite occurring in the 1980’s (coincidentally under Moi’s rule). The current constitution requires the government to investigate exactly how such large tracts of fertile, public ‘trust’ land ended up in the hands of top politicians. The constitution specifically calls for the creation of a National Land Commission, which will review past public land distribution and sale by the government and recommend the government repossess any tract of public land if deemed to have been obtained corruptly, or deemed to be in the best interest of the people; land will then be redistributed fairly and according to need. For instance, government councils in the areas of Tana River, Kwale and Magarini gave out thousands of acres of land to investors without any regard for the well-being of the local residents; it has already been implied that this land will likely be repossessed by the government. These new constitutional provisions provide for a much needed overhaul of land policy in Kenya, and it is hoped that the government will use these new mechanisms to responsibly correct past injustices.

The momentous passing of a new constitution in Kenya has brought about renewed faith in the political process, but the development and acceptance of a new constitution is just the beginning. The true test of its viability will be the government’s successful implementation of its provisions through the creation of fair and functional legislation. The government must prove that it is capable of upholding the constitution and acting on behalf of its people to protect their interests. For now, however, Kenyans can rejoice in this triumph, for they now have the opportunity to rebuild their government and establish a sustainable democracy. With the next presidential election less than two years away, there is both excitement and apprehension over what the future may hold, but one thing is certain: the blueprint for systemic political change has been successfully laid out, and it will ultimately have great implications for the Kenyan people, transforming their everyday life, hopefully for the better.

References

  1. Aluanga, Lillian. “Government Land Re-classified as Public,” The Standard (Kenya), 15 August 2010.
  2. Barkan, Joel D. and Mutua, Makau. “Turning the Corner in Kenya: A New Constitution for Nairobi,” Foreign Affairs, 10 August 2010.
  3. Beja, Patrick and Masha, Joseph. “ ‘No’ Makes its Final ‘Free’ Kenya Message,” The Standard (Kenya), 03 August 2010.
  4. Dixon, Robyn. “Kenya Votes in New Constitution,” Los Angeles Times, 05 August 2010.
  5. Dudziak, Mary L. “Marshall’s Role in Kenya-Creating a Bill of Rights,” excerpt from Justice for All: The Legacy of Thurgood Marshall,” 30 April 2008.
  6. Epatko, Larisa. “In Kenya, New Constitution Would Curb Presidential Powers,” PBS News Hour, 04 August 2010.
  7. Gettleman, Jeffrey. “New Constitution Nears Approval in Kenya,” New York Times, 04 August 2010.
  8. Inskeep, Steve. “Kenya Poised to Adopt New Constitution,” Interview with BBC Correspondent Peter Greste, National Public Radio, 05 August 2010.
  9. Kadhi, Joe. “Why Kibaki Criticizes Moi,” Msem akweli, 29 July 2010.
  10. Machania, James. “Kenya’s New law Set to Pass but Hurdles Remain,” Kuwait Times, 03 August 2010.
  11. Majtenyi, Cathy. “New Constitution Means Major Changes for Kenya,” VOA News, 12 Auguts 2010.
  12. Ndeta, John Harrington. “Kenyans in the Diaspora to Hold Dual Citizenship,” Ajabu Africa News, 11 August 2010.
  13. Ochami, David. “Time Up for Land Grabbers and Encroachers,” The Standard (Kenya), 11 August 2010.
  14. Otieno, Isaak. “Kenya’s Quest for a New Constitution-Key Constitutional Moments,” Institute for Security Studies, 29 July 2010.
  15. Sihanya, Ben. “Reconstructing the Kenyan Constitution and State, 1963-2009: Lessons from German and American Constitutionalism,” Stanford University, Retrieved 12 August 2010.
  16. Wamalwa, Chris. “Why the Diaspora are Upbeat with New Laws,” The Standard (Kenya), 06 August 2010.
  17. “New Law Heralds End to Coast Land Problems,” Daily Nation (Kenya), 5 August 2010.
  18. “Land Real Issue for Kenya Referendum ‘No’ Crusaders,” Agence France Presse, August 2010.
  19. Constitution of Kenya, Revised Edition- 2008 (2001), Published by the National Council for Law Reporting with the Authority of the Attorney General, Kenya Law Reports. Retrieved 15 August 2010.
  20. “Land Rights and Reform Agenda in Kenya: A Policy Brief and Audit,” Kenya Human Rights Commission, May 2010.
  21. Proposed Draft 2010 Kenya Constitution, Published by the Attorney General in Accordance with Section 34 of the Constitution of Kenya Review Act, 2008 (No. 9 of 2008), 06 May 2010, Available Online at http://www.standardmedia.co.ke/downloads/draft.constitution.pdf
  22. “The Incident that Transformed Kenya into a De Facto One Party State,” Daily Nation (Kenya), 23 October 2009.
  23. “Proposed Constitution: Wanjiku Blueprint for the Rebirth of the Kenyan Nation,” International Center for Policy and Conflict, Retrieved 12 August 2010. 
  24. “Kenya African National Union (KANU) and the Role of Political Parties in the Struggle for Independence,” African Tribute, 2002.
  25. “On this Day: Kenyatta to be Kenya’s First Premier,” BBC News, Retrieved 12 August 2010.
  26. “Onging Odinga (Vice President of Kenya)”, Britannica Online, Retrieved 14 August 2010.
  27. “Jaramogi Oginga Odinga,” African Tribute, 2002. Available Online at http://kenya740.tripod.com/jaramogi.html