As Kenyans wait eagerly for the Court of Appeal verdict on the Building Bridges Initiative (BBI) ruling of May 13, 2021, the grain of Kenya’s constitutional history reveals a mischievous power play with the independence Constitution between the period 1964 to 2008.
The Constitution was tinkered with at least 27 times, making a wide range of amendments each time, most of which eroded civil rights and liberties. In a strange twist of irony, some of the amendments returned to haunt the architects.
When the Constitution of Kenya (Amendment) Act No. 28 of 1964 was assented to on November 23, 1964, Jaramogi Oginga Odinga was elated. He celebrated the constitutional change with great gusto, telling Kenyans, “in Lancaster, we accepted a Constitution that we did like. We knew that we would get home and change it to a Constitution we would like.”
Jaramogi was referring to the independence constitutional accord that was reached after three heated meetings at London’s Lancaster House, in 1960, 1962 and 1963, and chaired mostly by the British Colonial Secretary, Ian Macleod. The talks sought to secure the interests of all communities living in Kenya as the colony approached independence. Among other things, Amendment Act No. 28 created the office of vice president. It stated, further, that the president would appoint the VP from among the Members of the National Assembly.
The position went to Jaramogi. It is easy to understand the triumphant mood that informed the first amendment. Moreover, Section 8 of the same amendment created the Office of President. Mzee Jomo Kenyatta transitioned from prime minister to president on December 12, 1964, under Section 9 of the same amendment. There was joy all around, with little to point to 40 years of constitutional mischief that would follow.
In subsequent years, the independence Constitution would undergo no less than 27 amendments. A handful of them cured legal mischief while others created legal mischief, as a factor of political expediency. It all depended on the mood in the country, and balancing between what the dominant political class intended and what the people desired. The Constitution was used to settle political scores and to tame competitors. Jaramogi took a significant bite at the cherry of mischief. By the year 2010, when the Constitution that the BBI now seeks to change came into being, the independence Constitution had been pounded out of recognition.
It was a terribly battered and mutilated instrument that served only the interests of the centre of power. It invariably made Kenya a constitutional dictatorship. When Odinga celebrated the freedom to amend the Constitution in November 1964, he did not know that it was through the same instrument that he would fall from grace. Going forward, his fate was sealed through constitutional amendments.
Amendment Act No. 17 of 1966 took away his seat as an elected MP. It sent him back to the electorate, together with other MPs who had recently defected from Kanu to join Kenya People’s Union (KPU). The amendment was an act of political mischief, orchestrated by Tom Mboya and Charles Njonjo. It sought both to stem further defection and to get rid of some of Odinga’s supporters in Parliament. Odinga’s long political dark night had just started.
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The power barons of the day would have Odinga in his place again when the Constitution of Kenya (Amendment) Act No. 7 of 17 June 1982 made Kenya a one-party State, by law. Odinga was then on the fringes of registering an Opposition party, with former Kitutu East MP, George Anyona, Njeru Kathangu of Runyenjes and University of Nairobi don, Ngotho Wa Kariuki.
Section 2A of the amended Constitution read, “There shall be in Kenya only one political party, the Kenya African National Union.” Moreover, the mischief went on to state further at Section 5A, “Every candidate for President shall be a member of the Kenya African National Union and shall be nominated by that party in the manner prescribed by or under an Act of Parliament.” Odinga’s fate was, at least for the time being, sealed. His three allies were shortly afterwards jailed in suspicious circumstances.
By the same token, the Amendment Act No. 7 of June 1982 created the powerful office of Chief Secretary, to which Simeon Nyachae was appointed. The amendment read, “There shall be a Chief Secretary who shall be head of the public service and who shall exercise supervision of the Office of the President and general supervision and co-ordination of all departments of government.” The Chief Secretary’s office morphed into a dreaded entity, feared both in the public service and in political circles.
The power games carried out in that vein, both before and after 1982, with the most significant happening being the 25th amendment on December 17, 1991. The Constitution of Kenya (Amendment) Act No. 12 of 1991 stated at Section 2, “The Constitution is amended by repealing section 2A.” Beyond that, various sections of the Constitution were amended to make way for the return of multiparty democracy in Kenya. The next equally significant amendment would wait for another 17 years, when the 27th and last amendment was made. It created the Office of Prime Minister and paved the way for power-sharing between President Mwai Kibaki and Raila Odinga, in the wake of the controversial presidential election of December 2007, and the ensuing violence.
Separately, the second amendment Act No. 38 of 1964 was quite significant. It crippled Regional Governments in the independence Majimbo Constitution. It centralised collection of revenue by the Central Government, by repealing the mandate of Regional Governments to collect. The objective was to weaken the centres of political power outside the presidency, as the regions and their leadership became wholly dependent on the Central Government. The third amendment, Constitution of Kenya (Amendment) Act No. 14 of 1965, was easily the most obvious pointer to the Executive intolerance ahead. It reduced the parliamentary approval of a State of Emergency in the country from 65 percent to “a simple majority.”
It also reduced the number of MPs required to vote for a constitutional amendment from 90 percent in the Senate to 75 percent. State of emergency approval by the House of Representatives (today the National Assembly) was reduced to 65 percent. The 1965 amendments were done in preparation for the 1966 amendments that messed up Jaramogi and his team. While Mboya, Njonjo and Kibaki knew where they were taking the country, Odinga and others, who went on to pay the price in 1966, did not see that they were the immediate targets.
The 1965 amendment made many other sweeping constitutional changes that boiled down to giving the president unlimited powers to repeal any laws that had been made by Regional Assemblies and, in the same sweep, reduced the authority of Parliament. The sixth amendment in June 1966 brought the message home most clearly. Section 29 of the Constitution was amended to remove, altogether, the powers of State of Emergency from Parliament to the president. All that was now required was for the president to publish a gazette notice and any part of the country, or the whole country, would come under the State of Emergency. Moreover, the 28-day time limit that previously existed was also removed to make for timelessness in states of emergency in Kenya.
It is instructive that all this was happening at a time of a bitter fallout between President Kenyatta and Odinga, earlier in February of the same year, with Mboya as the chief architect of the mischief. It was feared that Odinga and KPU would begin mass action in the country. The constitutional amendment sought to give President Kenyatta massive powers to detain them without trial, if need be, and without seeking approval of Parliament. They cautiously walked the tightrope until October 1969, when the powers were invoked to put them away after the Kisumu riots of that year.
Meanwhile, the seventh amendment in 1966 abolished the Senate. All senators were absorbed into the National Assembly, which was created by the same amendment Act, to replace the House of Representatives, under Section 6(2)c of the Act. To harmonise this amendment with other laws, Section 5(3) gave the president unlimited powers to amend the country’s laws as he saw fit, without reference to Parliament, or any other authority.
The draconian Section 5(3) of the 1966 amendment read in part, “The President may by order made and published in the Kenya Gazette at any time before the expiration of one year from the commencement of this Act make such amendments to any existing law as may appear to him to be necessary, or expedient, for bringing that law into conformity with the Constitution as amended by this Act, or for giving effect, or enabling effect to be given, to that law or to the Constitution as so amended, or which he otherwise considers necessary, or expedient, in consequence of the amendment of the Constitution by this Act.”
Expediency, as contemplated in this amendment, became the rule of thumb in all subsequent constitutional amendments in Kenya, barring the December 1991 amendment that restored multiparty democracy to the country.