General background
Independence and political developments
Like most former British colonies, Kenya, adopted the Westminster system of government at independence. Following its victory in the general elections of 1963 over the Kenya Africa Democratic Union (KADU), the Kenya African National Union (KANU) was invited to form the first autonomous government with Jomo Kenyatta as Prime Minister and the Queen, Elizabeth II of England, as Head of State on June 1 1963. In 1964, a constitutional amendment transformed Kenya into a republic, and a presidential system replaced the parliamentary system of government. This system remained in place until political crises, in which a power sharing agreement resulted in the splitting of executive power between President Mwai Kibaki and opposition leader and Prime Minister, Raila Odinga, led to its overhauling between 2007 and 2008.
Under the new system which spans the duration of the current parliamentary mandate or until one of the parties to the coalition withdraws, the President appoints a Prime Minister from the party or from the coalition which has the majority seats in parliament. The Prime Minister is responsible for supervising and coordinating government action. The president appoints cabinet ministers from both parties based on the strength of each of the parties in parliament.
Constitutional history and development
Key Country Documents Index
Modern Kenya's constitutional history and development, like that of all former British colonies can be traced back to the Lancaster House Conferences designed by the British Empire to prepare its colonies for independence between 1953 and 1979. The constitutional histories and development of most of these countries can be conveniently divided into three different phases: the independence or decolonization period, the post-independence or one-party state period and finally, the post-Cold War multi-party state period.
Decolonization and constitutional developments
Constitution making in Kenya began during the colonial days and was inherently linked to the policies and activities of the British Colonial Office. Under the framework of the Lancaster House Conferences, three key meetings or constitutional conferences marked Kenya's constitutional development during this period. The first meeting in 1960, resulted in an interim constitution that failed to grant any substantial autonomy to Kenya. The second conference in 1962 negotiated a framework for self-government while the third and final conference in 1963 resulted in the drafting and adoption of Kenya's first independent Constitution by the British Parliament.
The 1963 Constitution
The 1963 constitution, which was negotiated between the British government and representatives of Kenya's political parties, marked the end of colonial rule and transformed the colony into a dominion. It established a parliamentary system with executive powers vested in a cabinet. The Cabinet was headed by a Prime Minister, appointed by the Queen of England from the majority party in Parliament. The Queen was also the Commander-in-Chief. Legislative prerogative was vested in the Queen and a two-chamber parliament called a National Assembly. The National Assembly consisted of a Senate, designed to represent regional interests, and a House of Representatives, designed to represent national interests. The constitution also established a system of regional government which replaced the old provinces.
The 1964 Constitution
The Constitution was fundamentally changed in 1964 following a parliamentary amendment. Kenya became a republic and the executive became presidential. The senate and regions were also abolished. This ushered in a period of many minor constitutional amendments combined with measures, which, by the beginning of the eighties, had effectively transformed Kenya into a de facto one-party state led by the KANU.
The development of the post-independence or one-party state constitution
The 1982 Constitutional Amendment
Limited constitutional review in June 1982 officially transformed Kenya into a one-party state. Subsequent parliamentary elections in 1983 and 1988 further reinforced the one-party system.
The development of the post-Cold War or multi-party constitution
The Constitutional Amendment of 1991
By the end of the 1990s, institutional decay, economic and social breakdown, agitation from reform movements that dated back to the 1980s combined with international pressure for good governance and the end of the Cold War ushered in a new wave of democratization in Kenya that pushed for fundamental institutional reforms. This would later provoke the most comprehensive constitutional review process since the adoption of the independence constitution of 1963. A parliamentary act in December 1991 repealed the one-party system provisions of the constitution and effectively established a multiparty system. Multiparty elections were held the following year in December.
The 2000-2004 constitutional review process
Following the general elections of 1997, Parliament, on the initiative of the government, passed the Constitution of Kenya Review Act (2002), which created the legal framework for comprehensive constitutional reforms. In furtherance of the Act's provisions, a constitutional review body, Constitution of Kenya Review Commission (CKRC) headed by Professor Yash-Pal Ghai, was established to provide civic education, seek public input and prepare a draft constitution for consideration by an enlarged National Constitutional Conference (NCC). The NCC, referred to as the Bomas was comprised of all members of parliament, 42 representatives from political parties, 3 delegates from each district, 125 representatives of religious groups, women's groups, youth groups, the disabled, trade unions and NGOs. Unfortunately, the process was derailed by deep politicization and disagreements among the stakeholders, resulting in the rejection of the Commission's draft constitution in the constitutional referendum of 2005.
The 2009 constitutional review process
The 2009 constitutional process was a sequel to the 2000-2004 process. The rejection of the draft constitution by Kenyans in the referendum of 2005 meant that the 1963 constitution remained the basic law of Kenya. Disputed presidential election results in 2007 provoked an unprecedented wave of political violence and killings across Kenya claiming over 1000 lives and causing the displacement of hundreds of thousands. An AU-brokered power sharing deal subsequently ended the conflict and created a government of national unity between rival factions. The deal also provided for constitutional reforms. Under the Constitution of Kenya Review Act 2008 (CKRA), a Committee of Experts (CoE) was established as the main technical organ to drive the process. The CoE was given12 months to produce a draft to be submitted to referendum. Members of the CoE were appointed on 23 February 2009 and sworn in on 2 March 2009. They were:
- Mr Nzamba Kitonga, Chairperson
- Ms Atsango Chesoni, Deputy Chairperson
- Ms Njoki Ndung'u,
- Mr Otiende Amolo
- Mr Abdirashid Hussein
- Mr Bobby Mkangi
- Dr. Ekuru Aukot
- Professor Christina Murray (South Africa)
- Dr Chaloka Beyani (Zambia)
- Dr Frederick Ssempebwav (Uganda)
The CoE were to identify and resolve outstanding issues before preparing a draft constitution for adoption by Parliament and ratification in a national referendum. The CKRA also created two other organs to help with the process: the twenty-seven member, multiparty Parliamentary Select committee; the National Assembly. The overriding principles of the process was the creation of a document that protected national issues over regional or sectorial interest and made the government accountable to the people.
The Act called for a twelve months review process, dating from the commencement of the Act, on 22 December 2008. However, because the CoE was not sworn in until 2 March 2009 the process had to be rushed in some areas. The CoE felt that it was important to complete the process within the statutory timeframe. The window for reform would close if the referendum did not take place by mid-2010 due to the 2012 election. The CoE convened reference groups and conducted civic education. The Committee worked to ensure the public understood the process, explaining the mandate in public hearings held in different parts of the country. General debates and public awareness initiatives on the process were held, as well as meetings with the various stakeholders. The content of the drafts and the changes that were made as the constitutional review process progressed, were explained directly to the public during dissemination as well as in the newspapers, on radio, and television. Moreover, the CoE prepared materials for civic education on the Proposed Constitution for training civic educators, explaining the content of the Proposed Constitution in fuller and simplified versions, and in the newspapers. Constituency Civic Educators were recruited for each constituency and Provincial Coordinators of civic education were also recruited for each region.
The CoE collected over 26,451 memoranda and presentations from members of the public within eight months. Submissions came from various facets of society including: organized groups, political parties, religious organization, statutory bodies and civil society. To gather these comments the CoE constituted itself into three groups and held eighteen public hearings in the eight provinces from 20 to 25 July 2009. The CoE held technical thematic consultations on areas that had been deemed contentious and then held sector specific consultations on these areas.
Key issues during the constitution drafting process
Executive
In the wake of the violent elections of 2007, a power sharing deal was facilitated by former UN Secretary-General Kofi Annan between the incumbent President, Mwai Kibaki, and the opposition leader, Raila Odinga. Odinga was appointed Prime Minister, a position from which he could only be removed through a vote of no confidence by the Parliament.
The balance of powers between the President and Prime Minister was a source of contention during the drafting process. The options presented were to have a purely presidential system, a purely parliamentary system or a ‘mixed' system with a President and Prime Minister sharing power. The CoE opted for a mixed, semi-presidential system. The draft constitution submitted by the CoE reduced the powers of the President and gave responsibility for the daily operations of government to the Prime Minister. Some stakeholders rejected this solution, arguing that creating two centers of executive power was potentially destabilizing and that the CoE should have chosen either a presidential or parliamentary system.
Legislature
Discussions during the drafting phase regarding the legislature focused on the powers of the second chamber of the legislature in relation both to the first chamber and to the Executive. The draft proposed a bicameral Parliament, with the upper chamber being the Senate and the lower chamber, the National Assembly. The Senate would have approximately 94 members. Each county would elect one Senator, each region would elect two women Senators and each region would elect one person with a disability or youth. It was proposed that the National Assembly be comprised of members elected from constituencies (one from each constituency), one woman elected from every county, seven persons with disabilities and seven members elected by marginalized communities, groups and workers.
Judiciary
The draft proposed four superior courts: the Supreme Court, the Court of Appeal, the Constitutional Court and the High Court. Additionally, it proposed that current members of the judiciary may only retain their posts after going through a vetting process to clear them of misconduct and corruption. An Interim Judicial Service Commission was created responsible for vetting sitting judges. This requirement has sparked a strong response from the judiciary, which argued that it unfairly targeted one branch of the government, and could be implemented arbitrarily.
Devolution
During the drafting process there was a consensus that powers of government should be shared between a central government and one or more devolved levels of government. The draft proposed devolution of state power to regions, to replace provinces; as well as the regulation of the relationship between the central government and the regions. It also proposed one additional lower level of power - the county level - which replaces the district level.
While the need for decentralization of state power was recognized, there were concerns about the potential unintended effects of devolution. These included the creation of minority groups vulnerable to the local majority population, the lack of capacity for implementation and confusion over the division of power and responsibility.
Dual citizenship
Prior to the 2009 draft constitution, Kenyans could not hold dual citizenship. The draft constitution allowed Kenyan citizens to acquire the citizenship of a second country. Additionally, the draft allowed a person who lost their Kenyan citizenship as a result of acquiring the citizenship of another country to regain Kenyan citizenship by application.
Bringing the constitution into effect (transitional clauses)
Transitional arrangements were also a point of contention, including how the adoption and implementation of the new constitution should affect elected and unelected political office holders and whether or not they should complete their terms.
On 17 November 2009, the CoE released the draft of the constitution which was submitted to the general public for commentary over a 30-day period. After the public’s 30-day period the CoE then had 21-days to revise the draft in light of the public’s views. The CoE then submitted the revised draft, together with a report, to the Parliamentary Select Committee (PSC) “for deliberation and consensus building on the contentious issues.” The PSC returned the draft to the CoE on 2 February 2010 with proposals for changes to the Revised Harmonized Draft Constitution. The CoE then 21 more days to review this new draft taking into account the PSC’s recommendations. For the most part the PSC had not amended the draft fully and requested the CoE to make adjustments to ensure that the Proposed Constitution of Kenya would contain appropriate checks and balances to ensure a sound democratic presidential system of governance for the people of Kenya, in keeping with the principles established in the Review Act. On 28 February 2010 the CoE submitted the Proposed Constitution of Kenya to the National Assembly (NA). The NA had 30 days to deliberate and approve the document, or recommend amendments. On 2 April 2010 the Assembly unanimously adopted the document without any amendments. The document was then sent to the Attorney General for publication and was officially published on 6 May 2010. The Interim Elections Commission then set out to framing the referendum question on 13 May 2010. The question was framed in both English and Kiswahili as: “Do you approve of the proposed New Constitution?” This was a yes or no question. Due to the high level of illiteracy in the country, visual symbols and aids such as colors were utilized to ensure voters were certain about the choices that they were making. Green symbolized “yes” and red “no”.
- The referendum was held on 4 August 2010 and an overwhelming majority voted in favour the proposed Constitution. On 27 August 2010, President Mwai Kibaki promulgated the document at an open ceremony at Uhuru Park in Nairobi.
Key actors
The two primary actors were the political party of the President, the Party of National Unity (PNU), and the political party of the Prime Minister, the Orange Democratic Movement (ODM). The two parties separately presented their views on the draft constitution to the CoE. While the grand coalition committee on consensus building on constitution reforms met several times and agreed, in principle, on a hybrid semi-presidential system, they disagreed on the division of powers between the president and the prime minister. The PNU supported a strong presidency and advocated for greater powers than those proposed by the draft constitution.
International actors
The CoE was a unique body as it comprised of three foreign experts in addition to six Kenyan experts.
2010 Constitution
Kenya’s long constitutional review process finally came to end when the people overwhelmingly voted for the adoption of the new Constitution on 4 August 2010. The constitution has enjoyed tremendous support both abroad and at home. The document introduces far reaching changes to Kenya’s system of governance. The government is decentralized, creating the national government and the county government. A system of check and balanced is ensured between the executive, legislative and judicial. The Constitution introduces a Bill of Rights that seeks to protect and promote social, economic and political rights of Kenyans. The protections of socio-economic rights are also an important addition by the 2010 Constitution. Principles and values of governance are emphasizing, with an entire chapter being devoted to leadership and integrity.
Although with promulgation the entire Constitution came into force with immediate effect, various portions of the document had to be implemented through supporting legislation. The Commission for the Implementation of the Constitution (CIC) and the Constitutional Implementation Oversight Committee (CIOC) were established to ensure that the process was carried out smoothly. The Commissions have oversight capacity and create policies to guide the process. The CIC has a five years mandate or until the Constitution is fully implemented, whichever comes first. Legislation addressed issues such as: citizenship, elections, ethics and corruption, political parties, system of courts and Kenya National Human Rights and Equality Commission.
The Executive
As set forth in article 131, the President of the Republic of Kenya is the Head of State, the Head of Government and Commander in Chief of the Kenya’s Defense Forces. Presidential candidates must have been Kenyan citizen at birth; nominated by political party or are independent candidates; nominated by at least 2000 voters in each of the majority of the counties, and qualified to be a member of parliament. If only one candidate is nominated, then that person is declared President. He is elected by universal adult suffrage for a five year term. Subject to the approval of Parliament, the President appoints the Chief Justice, the Attorney General, Ambassadors/High Commissioners, etc. The government is made up of no more than 22 and no fewer than 14 Cabinet Secretaries. The Cabinet also comprises the President and the Deputy President and the Attorney General., Cabinet members cannot be members of the Parliament. The Cabinet determines, formulates and implements the policy of the Government and is overseen by the President. .
The Legislature
The Bicameral legislature comprises the National Assembly (NA) and the Senate. The NA represents the all Kenyans and controls the allocations of revenues to the various State organs. The Assembly performs oversight of those organs and initiates impeachment proceedings against state officials. It also approves declarations of war and the extension of a state of emergency.
The Senate represents the interest of the counties; determines the allocation of national revenue among counties and performs oversight of the resources allocated to those counties. The NA consists of two-hundred-ninety members, each elected by the registered voters of single member constituencies. Forty-seven of the members have to be women and twelve members nominated by political parties representing special interest, such as youth. The Senate comprises forty-seven members, sixteen women, two members (one man and one woman) representing youth, and two (one man and one woman) representing the disable. To be eligible for both houses, a person must be a registered voter, meet the ethical and educational requirement as proscribe by Parliament, and be supported by one thousand (NA) or two-thousand (Senate) voters in their constituency.
The Judiciary
The Judiciary consists of the judges of the superior courts, magistrates, other judicial officers and staff. The Chief Justice is the head of the judiciary. The superior courts are the Supreme Court, the Court of Appeal and the High Court. Parliament may set up courts with the status of High Court to address various issues. The Supreme Court consists of a Chief Justice, a Deputy Chief Justice and five other justices. Only five justices need to be seated to carry out proceedings. The Supreme Court has exclusive original jurisdiction to hear and determine disputes relating to elections to the office of President arising under Article 140. The Court has the power of appellate review of cases heard in the Court of Appeals. The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government. All lower courts are bound by the decisions of the Supreme Court. The Constitution does not set the number of judges appointed to the Court of Appeals. The High Courts have unlimited original jurisdiction over all civil and criminal cases.
Constitutional Challenges
Structure of Government under the 2010 Constitution
Timeline
| 600 |
Arabs traders began settling along the coastal areas. |
| 16th Century |
Omani Arabs consolidate control of the coast. |
| 1895 |
Kenya becomes British protectorate. |
| 1920 |
East-Africa protectorate because Crown Colony of Kenya. |
| 1944 |
Kenyan African Union is formed to campaign for African independence. |
| 1963 |
Kenya gains independence and Jomo Kenyatta is installed as Prime Minister. |
| 1964 |
Constitution is amended to declare Kenya a Republic and Kenyatta become Kenya’s first President. |
| 1966 |
Provisional Assembly is scraped and the bicameral Parliament becomes the unicameral National Assembly |
| 1969 |
New Constitution adopted, consolidating the changes made to the 1963 Constitution and further strengthening the powers of the President. |
| 1983 |
Multiparty and secret ballot systems abolished. Kenya is a single party state led by the KANU |
| December 1991 |
Multipart system is reintroduced allowing for the setting of term limits for Presidents |
| 2000 |
Daniel arap Moi sets up the Commission for Constitutional Reform of Kenya to lead Kenya’s first major constitutional reform. |
| November 2005 |
Referendum defeats the government’s draft constitution. |
| 28 February 2008 |
The National Accord and Reconciliation Act (NARA) for the drafting of a new constitution - is signed by President Kibaki and Prime Minister Raila Odinga to end violence that erupted after the December 2007 presidential elections. |
| 2008 |
A new Constitution of Kenya Review Act is passed establishing a Committee of Experts (CoE) with a 12 months mandate to coordinate the constitutional review process and prepare a draft. |
| 23 February 2009 |
Members of the CoE are appointed by the President |
| 2 March 2009 |
Members of the CoE are sworn in |
| March - October 2009 |
CoE finalizing draft constitution |
| 17 November 2009 |
CoE releases draft to the public and invites views and comments on the draft |
| 15 December 2009 |
The grand coalition committee on consensus building on constitution reforms held its third meeting |
| 17 December 2009 |
Deadline for comments to be submitted by the public and political parties to the CoE on the draft constitution |
| Early January 2010 |
CoE submits revised draft to Parliamentary Select Committee |
| End January 2010 |
Committee of MPs submit their recommendations on the draft constitution to the CoE |
| 2 February 2010 | The PSC submits its recommendations on the draft constitution to the CoE |
| 28 February 2010 | CoE submits The Proposed Draft Constitution of Kenya to the National Assembly. |
| 2 April 2010 | National Assembly unanimously adopted the document without any amendments |
| 6 May 2010 | Attorney General official publishes the proposed draft constitution of Kenya |
| 4 August 2010 |
Kenyans overwhelmingly vote for the new Constitution. |
| 27 August 2010 |
Kenya’s Constitution is promulgated. |
Bibliography
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Prof Ben Sihanya. Constitutional Implementation in Kenya, 2010-2015: Challenges and Prospects. Friedrich Ebert Stiftung. 5/12/2012. (available at: <http://library.fes.de/pdf-files/bueros/kenia/09857.pdf>)
Richard Allen Greene. Kenya Churches Unite Against Draft Constitution. CNN. 8/4/2010. Web. 2013 July 25. <http://tinyurl.com/mgwyvr7>.
Tayuh Ngenge. Kenya's 2013 Elections: Reflections on the Supreme Court Ruling and the Role of the Judiciary in Democratization. International IDEA. 04/18/2013. Web. 2013 July 25. < http://tinyurl.com/oxeyuap>.
United States. CIA World Factbook: Kenya., 2013. Web. 2013 July 2013. <https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html>.
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