President Moi’ boast of possessing a “secret weapon – the election date, of his party KANU ruling for the next hundred years, and of his prowess as a master planner”, is reminiscent of the message in the biblical book of Revelation. “I am the Alpha and Omega – who is and who was and who is to come”. Nonetheless, constitutional provisions on eligibility for presidential candidature appear to belie such omnipotence

On 28 August, 1992 the Constitution of Kenya (Amendment) Act No. 6 of 1992 was published in the Kenya Gazette supplement No. 70 (Act No. 5) on page 149. Section 5 of the Amendment Act repealed Section 9 of the Constitution and replaced it with a new Section 9 whose subsection (2) states: No person shall be elected to hold office as President for more than two terms.

The Amendment Act, which came into force on 290 August, 1992, was promulgated as a result of the concern of the Kenyan citizens that Kenyan Presidents who stayed in power for more than two terms tended to perpetuate their rule. This concern was expressed during the KANU Review Committee sessions in 1990. As we approach the forthcoming General Election, it appears that the will of Kenyans as reflected by the new Section of the Constitution is liable to be defeated by Moi’s announced Presidential candidate and that Section 9 of the Constitution does not apply to him. There are several reasons why Moi is not eligible for another term as President.

  1. A plain interpretation of Section 9 (2) of the Constitution disqualifies President Moi from participating in the forthcoming elections. In its plain sense, the section talks of no person, neither President Moi nor all the other Kenyan citizens who are eligible for presidency.
  2. If there was any ambiguity as to the provisions of Section 9(2), the section would have to be interpreted using the famous Rule in Heydon’s Case of 1857. According to that rule of interpretation of statutes, a provision should be interpreted in such a way that it gives effect to its intention and to remedy the mischief at which it was aimed. Section 9 (2) was intended to prevent the perpetual holding of power. It cannot be held that the constitutional protection is invalid until 2003 if Moi served two terms from today. The people of Kenya demanded that they be protected from the possibility of leaders perpetuating their rule and Moi’s candidature threatens the protection they were granted by Section 9 (2).
  3. The only conceivable argument where Section 9 (2) would not debar Moi is the rule against retrospectively. The rule states that a law may not operate ON CASES AND FACTS COMING INTO existence before its commencement in such a way as to affect transactions previously entered or past conduct. This is the rule that KANU is bent on relying upon and it does not apply to Moi’s candidature. There are several reasons:-
  4. The legal position is that a statute is not retrospective if it imposes a disqualification on a person where its overriding purpose in doing so is not to punish that person but to protect the public.
  5. An Act is not merely retrospective simply because it acts on past conduct to determine someone’s future status.

In this regard, we wish to refer to the case of Re A Solicitor’s Clerk. In that case, the solicitor’s disciplinary committee in England ordered in 1957, in reference to a particular solicitor’s clerk, that no solicitor may employ him without permission of the Law Society because of that clerk’s conviction on Larceny in 1953. The disciplinary committee derived its powers from an amendment to the solicitor’s Act in 1956. Prior to that, it had no powers to issue such an order. Then Chief Justice of England, Lord Goddard, holding that that law was not retrospective said: In my opinion, however, this Act is not in truth retrospective. It enables an order to be made disqualifying a person from acting as solicitor’s clerk in th4e future and what happened in the past is the cause or reason for the making of the order: but the order has no retrospective effect. It would be retrospective if the Act provided that anything done before the Act came into force or before the order was made should be void or would be voidable or if a penalty were inflicted for having acted in this or any other capacity before the Act came into force or before the order was made. This Act simply enables a disqualification to be imposed for the future which in no way affects anything done by the appellant in the past.

We also wish to refer to R.V Vine. In this case, a liquor dealer had his licence cancelled on account of a new Act of Parliament that disqualified all persons with a criminal record from holding a liquor licence. Cookburn C.J said: – The question is whether a person who has been convicted of a felony before the Act was passed became disqualified on the passing of the Act. I think he did. If one could see some reason for thinking that the intention of this enactment was merely to aggravate the punishment for felony by imposing this disqualification in addition, I should feel the force of the argument on retrospective. But here the object of the enactment is not to punish offenders, but to protect the public… It matters not for this purpose whether the person was convicted before or after the Act was passed. One is equally bad as the other ought not to be entrusted with a licence…The legislature might have made exceptions to meet these past cases but have chosen rather a hard and fast line to meet all cases.

Mellor J. added:- A man convicted before the Act was passed is quit as much tainted as a man convicted after; and it appears to me not only the possible but natural interpretation of the section that anyone convicted of felony shall be ipso facto disqualified.

Section 9 (2) of the Constitution as mended does not say that Moi is in breach of the Constitution by having served three terms so far. It does not say he will be punished or that his third term tenure is null and void. No! It says he is no longer an eligible presidential candidate.

We compare Section 9(20 with Amendment XXII of 1951 to the United States Constitution. Amendment xxii stated in Section 1: No person shall be elected to the office of the President more than twice, and no person who has held the office of the President or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this article shall not apply to any person holding the office of President when this article was proposed by the congress, and shall not prevent any person who may be holding the office of President, or acting as President during the remainder of such term.

At the time when the Amendment was proposed by the Congress, March 24, 1947, Harry S. Truman was the President of the United States. President Truman had become President upon the death of President Franklin Roosevelt. Roosevelt was the first President to break the “no third term rule” tradition in the US and had in fact been elected for a fourth term during which he died. Harry Truman was a mid-term successor.

The Amendment was ratified on 27 February, 1951, 4 years after the proposal and two years before Truman was to present himself for another term. It had to be very clear about the status of President Harry Truman for, had it been ratified without the clarification when he was serving a third term; his continued service would have been unconstitutional.

The Constitution of Kenya (Amendment) Bill 1992 published in Kenya Gazette Supplement Bill No. 16 (Bill No. 2) dated 3rd March 1992 saved Moi as Amendment No. XXII saved Truman. It stated in Section 13 (2): For the avoidance of doubt it is hereby declared that the enactment of Section 9 (2) of the constitution set out in Section 6 of this Act shall be effective from the date the person elected as President after the dissolution of Parliament assumes office in accordance with the provisions of this Act and shall not apply retrospectively.

But this Bill was rejected by the KANU Parliamentary Group and the Bill which now comprises the present Act left out this saving clause. The saving clause was of the provisions that the Parliament Group said it would not accept. Attorney-General Amos Wako had no choice but remove it.

The Kenyan Parliament therefore does not similarly clear Moi as the US Congress cleared Truman. It was thus its intention that Moi be affected by the amendment as  it affects the rest of 24 million-plus Kenyans. The US Congress wanted to prevent a repetition of a re-election like President Roosevelt’s beyond two terms-but particularly wished that President Truman should not be affected. This is not the case for Moi.


By Edward Muriithi and Paul Mwangi.