Role of the people in constitution-making

Former President Mwai Kibaki during the inauguration of the 2010 constitution. [Courtesy]

Independent Kenya’s original constitution was a product of the Lancaster House negotiations between the British Empire and Kenyan representatives. 

Like other former colonies in Africa, Kenya soon embarked on a process of constitutional amendments that at the time seemed necessary to realise full self-governance and sovereignty.

The first one in 1964 removed the Queen as head of state of Kenya and replaced her with an Executive President. It also transferred the entitlements of the Crown to the Government of Kenya.

While this was happening, the main political parties in Kenya (Kanu and Kadu) merged, making Kenya a de facto one-party State. A year later, another amendment process took place that abolished the Senate and replaced it with provincial councils controlled by the central government.

In 1966, Kenya’s first Vice President, Jaramogi Oginga Odinga, resigned and formed the Kenya People’s Union. Essentially, this re-established the official opposition, but three years later, KPU was banned.

In 1975/1976, powerful politicians from the founding president’s Central Kenya backyard hatched an unsuccessful ‘change the constitution movement’ to block Daniel Moi, a Kalenjin, from the Rift Valley from automatically assuming office should the president die in office.

Their proposed amendments created a transitional period of 90 days that they hoped could prevent the VP from ascending to, and consolidating power before the elections.

Another pivotal moment in Kenyan history came in 1982 when the Moi government successfully sponsored a constitutional amendment to make Kenya a de jure single-party State through the introduction of Section 2a.

Alas, through another amendment by Parliament, devoid of Kenyans’ input - Kenya legally became a single-party State with no space for divergent views. Months later, a bloody attempted coup happened that cemented repression against divergent views by intellectuals, lecturers, students, politicians, and journalists.

The repression led to campaigning and activism by students and student leaders, diplomats, religious clerics, lawyers and politicians who held workshops, wrote, held rallies and protests that ultimately led to the repeal of Section 2a, thus ushering back multi-party democracy in 1991 that led to the 1992 elections. Still, many Kenyans felt that the constitution needed to be changed for it to truly reflect the aspirations of the people.

Until the late 1990s, the ruling party insisted that the constitution could only be changed by Parliament whereas civil society led by the religious groups under the auspices of the Ufungamano Initiative, believed the people needed to directly contribute and own the process. Eventually, Moi capitulated and in 2001 Parliament merged with Ufungamano to collect views and prepare a draft constitution.

After President Mwai Kibaki took office, the Constitution of Kenya Review Commission (CKRC) began collecting views from the people of Kenya resulting in the ‘Ghai draft’, named after the chairperson of CKRC.

However, the Kibaki government was uncomfortable with the draft, prompting Attorney General Amos Wako to unilaterally produce another draft that was defeated in the 2005 constitutional referendum.

POLITICAL LINES

The bulldozing of the Wako draft and its subsequent rejection led to a toxic political environment and mistrust that contributed to the 2007 post-election violence. The death and destruction along tribal and political lines led to the overwhelming feeling that Kenya needed a people-driven constitution.

After another process of collection of views, negotiations and consultations, Kenyans overwhelmingly gave themselves the Constitution of Kenya 2010. It fortified the sovereignty of the people, the fact that Parliament, Executive and Judiciary derive their power from the sovereign people; and required the people and their rights to be respected, that they are consulted and led with integrity.

Ten years later, another amendment process is upon us. We must be careful that the process is not another political elite affair that changes the fortune of the country without properly and meaningfully consulting the sovereign people of Kenya.