How Kenya’s constitution was mutilated for selfish gains

Former President Jomo Kenyatta with MPs. (Photo:File/Standard)

By Waweru Mugo

Kenya: One would expect compelling reasons for amending a country’s constitution. However, changing it to help a friend sounds like quite an unlikely one.

Yet, as outrageous as it seems, this is what happened in Kenya’s early years of independence as leaders set in motion a process that would see the country’s supreme law get so mutilated that citizens would later push for its complete overhaul.

Still, some of the people who spearheaded these changes would later turn around and call for a repeal.

Several of these amendments stand out for the drama that came with them. There was an amendment ordered by Kenyatta to save Paul Ngei’s political career and one that made Kenya a one-party dictatorship.

Another election law was passed in 1982 to enable President Moi sail through without a competitor.

Paul Ngei may be celebrated today as an independence hero, having been arrested together with Kenyatta and four other African leaders on October 20, 1952. The two developed close friendship in Kapenguria, then a remote hamlet where colonial officers held them in isolation from the rest of the world.

It was in the 1974 elections that Ngei’s rival, Henry Muli, was forced off the parliamentary race through intimidation.

The methods used to have him quit the race were quite unorthodox: Ngei’s supporters paraded a coffin for Muli in a mock burial on nomination day. His supporters threatened the returning officer with violence if he allowed anyone else to contest.

As the mayhem ensued, police advised Muli to stand down as they could no longer guarantee his security. This left Ngei unopposed. 

 Following Muli’s petition, a court led by Chief Justice James Wicks found Ngei guilty of committing an election offence and barred him from contesting any poll for five years as the law dictated.

This meant he would also not take part in the by-election that followed.

In Kenya: a History Since Independence, Charles Hornsby quotes Ngei saying: “If I am opposed, we as a tribe will have a very bad position in government and if I’m returned unopposed, we will have a better say.”

To save his friend, Kenyatta ordered an amendment that gave the president powers to waiver the penalty on persons found guilty of an election offence. Attorney General Charles Njonjo published the Bill in one day before it was tabled in Parliament and passed in a single afternoon.

Fifteenth amendment

The following day, Kenyatta signed it into law. It was the fifteenth amendment of the Constitution since independence.

Contributing to debate on the Bill, Vice President, Daniel arap Moi, said: “I support this amendment because we know that the President is above the law. If we say that the President is above the law, why should we say that he should be denied these new powers which rightfully belong to him?”

 Although Parliament passed the law unanimously, it raised serious issues about the President’s respect for the rule of law.

Njenga Karume, another friend of Kenyatta’s, was later to reveal how astounded some leaders were by the move.

When he asked Kenyatta what had happened, the Head of State said: “I cannot allow a situation where I do not know where Ngei is or where he is sleeping at any given time. I am sure you do not know what he is capable of doing to this government. Every time I want to go to bed, I must call him to confirm he is also in bed. If I lose him as a minister, I will not be in a position to control him that way.”

Karume, who was to later serve in the Cabinet under President Mwai Kibaki, made the revelations in his autobiography, Beyond Expectations: From Charcoal to Gold.

The section was repealed as soon as it served its purpose: returning Ngei to Parliament.

In 1969, Kenya had unofficially become a one-party state when Kenyatta banned Jaramogi Odinga’s Kenya People’s Union. When Kenyatta died in August 1978, a Cabinet meeting on September 1 endorsed Moi, then the Vice President, as the newHead of State.

It was resolved that parliamentary candidates must be members of the ruling party Kanu and that names must be approved by its governing council. The council rejected 23 names, including Jaramogi’s.

Kanu was so far entrenching itself as the sole party without touching the constitution. By 1982, it was preparing to ban other parties by officially making the country a one-party dictatorship. The matter was met by stiff resistance, with lecturers in University of Nairobi’s law department and the Law Society of Kenya leading the onslaught.

In June, an amendment Bill to this effect was brought before parliament. Debate on the matter reveals the key players- including Njonjo and vice president Mwai Kibaki - and positions they took on the matter.

One critic warned that such a move was stifling opposition and “could lead to underground manifestations of opposition.”

Njonjo retorted:  “They have been told to watch out because even the government can go underground and follow them in that underground.” But true to this prediction, there was a coup attempt on August 1 of the same year.

 Introducing the Bill, Njonjo said Kenya did not need another party.

“Why do some people want to form another party? It is just that, may be somebody wants to become the president of this nation. The reason we are doing this is to clear the air in Kenya once and for all…so that from tonight, when we have passed this Bill, we will go to sleep and we shall not hear these dreamers again,” said Njonjo.

At the time, Raila Odinga, son of first vice president Jaramogi Odinda and George Anyona were preparing to form another party.

“What do you want to form another party for?” Njonjo posed as some MPs shouted: “To cause chaos.”

He explained that under the amendment, every candidate for president would have to be a member of Kanu.

“And I know that when that time comes, this nation will only produce, and Kanu will only present, one candidate for the office of the president, namely our president, His Excellency Daniel arap Moi.”

There was a casual, indifferent tone in the way he addressed Parliament. It suggested  that the amendment had already been passed and the MPs were just rubber-stamping the changes.

For instance, he simply glossed over other sections of the Bill, saying, “you just merely amend them so that you provide for the Kenya African National Union.”

The Bill, which would see Kenya descend into a one-party dictatorship, was seconded by Mwai Kibaki, then the vice president and minister for Home Affairs.

Historians see this as the turning point for Kenya. It kicked off one of the country’s darkest decade marked by official torture, harassment of Kanu opponents, corruption and sycophancy.

National polls

 Kibaki’s comments were quite surprising, seeing that in 1992, he became a fierce critic of the one-party system of government. Kibaki left Kanu to join the Democratic Party, but only after a relentless battle by champions of the so-called “second liberation” had successfully repealed the section that established the dictatorship.

 Seconding the Bill, Kibaki showered praise on Kanu, saying it had unified the nation and spearheaded development. He blasted critics who opposed a one-party system.

 “If someone questions the legitimacy of this government, how in all seriousness can he expect sympathy or even freedom to go on questioning the legitimacy of this government?” said Kibaki. “It is really to be expected even from angels; this is because even an angel cannot allow you to say that he is not an angel. This is because he was made by God and you were not asked, and nobody was asked for approval.”

 Parliament later approved an election law that recognised Kanu as the only party that could take part in national polls.

 “I agree we should have done that a long time ago but we have been having these campaigns by a few people who wanted to think that there is a need for another party in Kenya,” said Njonjo. “... Those who want another party can go somewhere else and it will not be anywhere near us because I do not think they will be allowed in the regions or the areas surrounding us. However, they will have to go somewhere else.”