The history of constitutional reform in Kenya dates back to 1990 when, after a couple of years of political upheaval, President Moi appointed the Kanu Review Committee.
Being the only legal political entity in Kenya, the reform of KANU became synonymous with the reform of the country. The views presented to the committee did not therefore restrict themselves to the party’s affairs but to issues of governance and constitutionalism. One of the most powerful positions take regarding the constitution was by the national council of churches of Kenya. In a paper signed by the reverend Samuel Kobia and Rt. Reverend George Njuguna, the council decried the watering down of the constitution of Kenya and its effects on the establishment of a nation. They said:
“Our concern is that over time, through piecemeal changes, the constitution formulated at the time of independence has been greatly watered down. The cumulative effect of the constitution amendments has been to alter the philosophy upon which the independence constitution was based.”
Urging Kenyans to avoid haste in “passing of amendments for the sake of expediency,” the council proposed, among other things, that KANU look into the possibility of a referendum on issues of national importance. Other bodies that presented submissions to the committee included the catholic church’s justice and peace commission, the international commission of jurists, the law society of Kenya together with leading crusaders. They all had the general view that Kenya needed to address its constitution not only to reinstate multiparty democracy but also to return the country to the philosophy of the independence constitution.
As would have been expected, Kanu skirted around the issue of reforms and instead begun to reform the constitution at its own convenience. On march 2, 1992, it published the Constitution of Kenya Amendment Bill 1992. The basic features of the bill were to restore multiparty democracy and to limit the term of the Presidency. The bill also sought to introduce the position of a Prime minister.
The bill attempted to deal with the most crucial demands of the time, which were the removal of S.2.A which forbade registration of other political parties other than Kanu, the limitation of terms of the president and checking of presidential powers. The bill was met by major criticism and was withdrawn a week later. One of the main issues brought forth by ts critics was that no person other than Kanu had been consulted. In an essay entitled “Restructuring the Kenya Constitution,” Dr Gibson Kamau Kuria complained:
“Since December 1990, when these reforms started, the Government has not invited the opposition to participate in the constitution reform in any way. It turned down the opposition’s suggestions that a constitutional convention or a national conference be convened to find solutions to the acute constitutional crisis and to rewrite the constitution… this year’s bill was opposed by many people and the opposition partly because the latter were not consulted about its content and the procedure which the constitutional reform should take, and partly because of the poor grasp of constitutional principles which the draftsmen manifested”
The essay by Dr Kuria set down the parameters of the initiative for constitutional reform. These were:
- Kenya needed to rewrite its constitution
- The constitution review process should be aimed at re-establishing the country to the philosophy of the 1963 constitution
- The reform should undo the damage done by continuous amendments over the years
- The reform should restore for every citizen the rights he or she had at independence
- The reform must involve all Kenyans whose views must be sought by way of a national constitutional conference
- The reform process must avoid reliance on poor draftsmanship and must seek the help of people with a good grasp of constitutional principles.
Dr. Kuria was supported by his legal partner Kiraitu Murungi (now the minister for justice and constitutional affairs) who in an essay entitles, “Arguments against multiparty system cannot pass the test of historical experience” said:
“it would be in the interest of every peace loving Kenyan, if our political decision makers could address themselves to the origins of our constitution in the light of the changes taking place elsewhere… and being guided by vision, pragmatism and realism, initiate the process for constitutional change, to avoid scenes of horror and ruin, which naturally follows ideological dogmatism and unplanned change.”
The politicians then came into the fray. The late Masinde Muliro in an essay entitled “Let us rewrite the Constitution” said,
“in my view what is needed now in the interest of our country and our children is a national convention comprising of people of all shades of opinion to rewrite the Kenya Constitution and build in entrenched clauses to guard and protest the fundamental rights and freedoms which are now being violated”
The basic philosophy of constitutional change in Kenya was agreed on. The parameters of the change were agreed on. So why is there a war today over the issue?
The Politicization of Constitutional Reform
Though the reign of President Kenyatta saw some major alterations in the independence constitution, some writers have argued that it did not amount to a destructive manipulation. Gitobu Imanyara stated in an editorial in The Nairobi Law Monthly in 1996:
“Kenyatta understood perfectly the limits of constitutional brinkmanship and despite the discomfiture he felt at the constraints placed on his authoritarian streak, he never went to the extent of interfering with the fundamental structure of our constitutional government… he banned the Kenya People’s Union but didn’t outlaw opposition parties… but didn’t introduce constitutional amendments to take away the independence of the judiciary… he resisted attempts by anti-Moi forces to place unnecessary in the Vice-Presidents succession.”
Imanyara argued that Moi effected constitutional amendments in order to entrench himself and replace constitution governments with an authoritarian, personal rule. “The abortive coup of 1982 gave him an opportunity to wreak havoc on our constitutional form of government under the guise of preservation of national security.”
Politics, inevitably, became the driving force of constitutional change. With the lawyers lacking political constituency to force Moi to review the constitution, the politicians had to take on the fight. Also, as the problems in the constitution had been caused by politics, their solution, equally, lay in politics. Moi on the other hand knew that a review of the constitution meant an erosion of his authoritarian rule. So he had to play politics with the issue. His strategy became to ease the political pressure without eroding his power base.
The history of constitutional reform in Kenya became therefore a saga of political machinations and intrigue. But there were always two groups fighting Moi. One was the civil society, like the national Constitutional Executive Council, and the politicians. The civil society wanted a return to the 1963 ideals. The politicians wanted Moi out of power and to acquire power for themselves.
The difference in the interests of these two groups came out of the IPPG compromise. The NCEC had pushed Moi to a corner. They had galvanized the people against the government to demand reforms. It had been accepted that no elections would be carried out in 1997 without constitutional reforms. But the politicians wanted to remove Moi and take power. In their characteristic optimism, they were sure 1997 was the year they would do so.
NCEC therefore became an enemy of both Kanu and the opposition as the latter two came together and hammered out IPPG. NCEC lost, but so did the opposition in the 1997 general election. Again, the opposition as it had done after the 1992 elections, went to sleep. NCEC took the battle again. The pressure became too much for the government. The civil society had formed the Ufungamano Initiative that threatened to call a constituent assembly to overthrow the constitution and install a new one. Again, the politicians became threatened, they went to bed together and this time, gave birth to Bomas.
Using Bomas, the politicians begun to fight the power. They are still doing that today. Their first order of business was to crush all the people who started the war for the constitutional reform. When such people presented their names for leadership of committees, they were booed and rejected. The founding fathers of the constitutional review movement were ejected from the process, leaving it at the hands of those who always succumbed to Moi’s machinations.
The next development was the total overthrow of the principles upon which the review process was demanded and fought for. Constitutional reform became constitutional repeal. While the intention was to return the country to the 1963 ideals on which this nation was formed, the intention today is to overthrow that order and create a new nation. Guarantees given by our founding fathers to Muslims on Kadhis courts and to white settlers on title deeds are no longer sanctified. It is a pity that the people of this country have such short memories. The same citizens who followed NCEC in open rebellion against government and who supported the ufungamano initiative in their vision of constitutional reform have now abandoned the two and have instead taken sides with competing groups of politicians whose objectives have always been power.
Observing the conduct of politicians in early independence years, Prof Yash Pal Ghai in his book Public Law And Politcal Change in Kenya says politicians are not going to change when they reach a position where they can benefit from a particular approach to the constitution. Prof Ghai properly summarizes the experience of constitutional practice in Kenya as follows:
“The constitution is not in practice seen as an umpire above political struggle, but as a weapon in that struggle which can be used and altered in order to gain temporary and passing advantages over one’s political opponents.”
The question now is, whose political struggle will the new constitution serve?
