Of constitutional changes and political power games

Former President Mwai Kibaki during the promulgation of the 2010 constitution. [File, Standard]
Politics, a cardinal human activity around which people organise, is not for the soft-hearted. Participants need to have tough skins to withstand barbs thrown at them and be ready for routine accusations and allegations that border on insanity.

They should also have enough guile to return favours to their tormentors. The person doing it becomes “naked” for all to see. In Kenya, political posturing hovers around personalised constitutional engineering to favour special interests.

It started with Britain creating Kenya as white man’s country, an earthly paradise. The white settlers demanded and received a role in governance in the Legislative Council (LegCo) in 1907. African agitation for inclusion led to the appointment of Eliud Mathu to the LegCo in 1944 during World War II but it was the Mau Mau war that forced serious constitutional changes. Various “constitutions” such as Lyttleton and Lennox Boyd allowed limited African participation in colonial elective offices.

The first election for Africans in 1957 created a new crop of African leaders and also showed how to rig elections by rigging out Mathu. The new leaders then engaged in intense two-pronged constitutional “warfare”, first among themselves as to who should be the leader and second against the colonial order. The personalisation of constitutional arguments became a disease in post-colonial Kenya.

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The constitutional warfare among the Africans in the transition from colonialism to independence and the 1960s hovered around Tom Mboya’s scheming shrewdness and purported ambitions. Initially, the warfare featured Mboya and his Euro backers on one side and Jaramogi Oginga Odinga and his “socialistic” supporters on the other.

Mboya, minister for Constitutional Affairs in 1964, ensured the Vice President, Mr Oginga Odinga, would not become President in case of a vacancy. He even pushed Odinga out of the vice presidency in 1966 with the constitutional chicanery at Limuru.

Having fixed Odinga, Mboya found himself on the receiving end on a different front in the constitutional warfare. The successful 1968 “change the constitution” movement removed the 1964 Mboya architecture. The new amendments ensured the sitting vice president would assume office in case of vacancy. The anti-Mboya constitutional changes also required party membership for holding elective offices. The only party in operation was increasingly Kanu. The sitting vice president was former Kadu Chairman Daniel arap Moi.

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Moi became President in 1978 and initially was astute in consolidating himself. He became the focus of constitutional debates, the way Mboya had, and instituted amendments in the 1980s that included Section 2A, making Kenya officially a one-party state. The President was to be virtually unquestionable. He, however, over-reached himself with the mlolongo elections. He was smart enough to repeal Section 2A and slide through constitutional mazes to remain in office for an additional 10 years. In the process, Moi trapped himself with his 1992 amendments, limiting future presidents to two terms.

Personalisation was there in several constitutional drafts that culminated with the 2010 Constitution that is currently under attack. The Yash Pal Ghai document, for instance, tried to disenfranchise Mwai Kibaki and Simeon Nyachae on account of age. The Bomas wanted an unelected powerful prime minister because certain Euro-favourite politicians had problems getting elected president. The 2005 Orange and Banana Referendum had little to do with the actual document; it was about Euro-engineered “regime change” and it flopped. The Kofi Annan nusu mkate deal boiled down to the interests of two people. The deal led to the 2010 structure that catered for specific interests, added a big tax burden on citizens, weakened the executive and created jobs for some people at the national and county levels.

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Since the 2010 constitutional structure did not satiate individual power ambitions, making the country ungovernable became the way to power. The commotions witnessed mostly in 2017 were the result. The subsequent calls for new dispensation appear personalised for, or against, particular individuals.

The “handshake" or the Building Bridges Initiative (BBI) is thus an instrument for new constitutional engineering. A deal between two influential men, like the Annan deal, it initially appeared questionable.

Having similarities with the 1962 Majimbo creating commission, and its myths, BBI might end up creating new myths. It seemingly has gained some legitimacy as Kenyans of stature queue to give opinions on how to recast the Constitution to ensure big jobs for some leaders.

They recommend more executives and new job layers. The cost to the taxpayer is not an issue. It would not be surprising therefore for the BBI to recommend executive expansion, disguised as “inclusivity”. Still, that would not be the end.

Prof Munene teaches History and International Relations at USIU 

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