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.

Process
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
of 1965
of 1966
• The Constitution of Kenya (Amendment) (No 2)Act
No 17 of 1966/Turn Coat Rule
No 18 of 1966
No 19 of 1966
of 1967
of 1968
No 16 of 1968
of 1969
of 1974
of 1974
of 1975
of 1977
of 1979
of 1979
of 1982
of 1986
of 1986
• The Constitution of Kenya (Amendment) Act No
20 of 1987
of 1988
• The Constitution of Kenya (Amendment) Act 1990
of 1991

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).

of 1965
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.

of 1966
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.

No 18 of 1966
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.

No 19 of 1966
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.

of 1967
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.

of 1968
Abolished Provincial Councils and deleted from
the constitution any references to the provincial
and district boundaries and alterations thereof.

10. The Constitution of Kenya (Amendment) (No 2)
Act No 16 of 1968
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.

of 1969
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.

12. The Constitution of Kenya (Amendment) Act No
10 of 1974
Reduced the age of voting from 21 to 18.
13. The Constitution of Kenya (Amendment) Act
No 5 of 1974
Made Kiswahili one of the official languages of
the National Assembly.

of 1975
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).
15. The Constitution of Kenya (Amendment) Act
No 13 of 1977
Established the Court of Appeal.
Abolished the right to directly remit compensation for acquisition of
property abroad without complying with foreign exchange regulations.

1 of 1979
Provided for use of English as an alternative
Parliamentary language.
Proficiency in Kiswahili made a prerequisite for
qualification for people seeking parliamentary
office.
17. The Constitution of Kenya
(Amendment) Act No 5 of 1979
Specified period within which a civil servant must
resign to seek office.
6 months prior to preliminary elections.

7 of 1982
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.

14 of 1986
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.

22. The Constitution of Kenya (Amendment) Act No 8 of
1988
Legalised detention of Capital offenders for 14 days
without trial allowing for time to torture.
Removed security of tenure of Constitutional office
Holders.
(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.

Process
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.

IPPG
The 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)
• TheWako/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.
- TheWako 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.

A historical background to kenya’s constitutional reform process

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Editor's Notes