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Democracy and Good Governance in Kenya:  Prospects and Obstacles
By Adams Oloo and Walter O. Oyugi 
Department of Government University of Nairobi

1.0            Introduction 

The process of political change in Kenya which culminated in the Dec 29, 1992 multi-party general elections was influenced by both domestic and external factors. The democratization movement that has been sweeping across Africa since the late 1980’s and which bears resemblance to the struggle for independence in the 1950’s and early 60’s has not spared Kenya.  Like the independence movements, the current democratization movement aims at freeing the African masses from socio-political and economic malaise. 

Indeed, the first 30 years of independence in Kenya turned out to be a disappointment both politically and economically.  The attainment of independence in Kenya in 1963 had been welcomed by the masses on the belief that the new state would introduce democratic practices both in political life and economic management. However this was never to be, since the rulers strayed away from popular expectation. One of the basic requirements of democracy is that there should be a popular consensus on how state affairs are conducted.  Secondly, the governors should be accountable to the governed according to procedures which have been pre-determined. The Kenyatta government did not adhere to the above principles but instead spent the first six years creating a unitary State with extensive powers bestowed on the executive at the expense of the Majimbo Constitution which had envisaged a decentralized State. The artificiality of the State which comprised several ethnic groups due to the boundaries drawn by the colonial powers gave leeway to Kenyatta to engage in patron-client politics once he had entrenched himself in power.  When Moi succeeded Kenyatta in 1978 the same state of affairs continued, culminating in the emergence of the state system which lacked genuine legitimacy.  It infringed on basic individual rights and sidelined a majority of the population in economic activities thus ensuring a consistent regression towards political and economic decay. 

The second struggle for democracy in Kenya is rooted in the above malaise and the upheavals in Eastern Europe in the late 1980’s only acted as a catalyst in exposing the regime’s dictatorial pasture to the international community. 

Therefore the purpose of this paper is to analyze the nature of the state at the dawn of multi-partyism and to critically assess the brief experience of pluralist politics in Kenya since 1992 by laying emphasis on the constitutional changes enacted since then and their relevance or irrelevance to the quest for democracy and good governance in Kenya. 

2.0       The Nature of the State During the One-Party System: 1963-1991

2.1            The Kenyatta Regime

In 1963, Kenya adopted a multi-party liberal democracy based on the “Westminster Model” of Government.  According to this model, the executive authority remained vested in the Queen.  The powers of the Queen in the country were however exercised on her behalf by the resident Governor-General.  The Governor-General in turn was to be advised by his prime-minister and the cabinet. (Gertzel, 1970: 125). 

The Independence Constitution negotiated at Lancaster House in London sought to create among other structures, a diffuse legislative structure that would not be susceptible to undue influence from the executive arm of the government.  The whole idea as expressed in the independence constitution was to create a broad basis for executive accountability.  This was achieved through the demise of a regionalized state system that was underscored by first a two-tier central legislature comprised of the Upper House (Senate) and the Lower House (House of Representatives) with a provision for the Senate to work as an effective check on both the Lower House and the executive.  And second, the formation of regional governments and assemblies which had decision-making and legislative authority over a substantial range of matters. 

Thus, under the independence constitution, the latitude of power exercised by the Central government was in principle severely limited.  It was difficult for the executive to make major policy decisions without the input of parliament, the regional assemblies or both.  Parliament was also supposed to have a major role in the working of the constitution.  Not only was its co-operation essential in the exercise of emergency powers, but it also had the powers to bring-down a government through a vote of no confidence.  Those structures were safeguarded by a rigid amendment procedures which virtually imposed an embargo on Constitutional change in respect of certain important matters (see also Ghai and McAuslan 1970; Okoth Ogendo 1972; Gertzel 1965). 

Barely a year after independence, Kenya became a republic (Dec. 1964) following determined constitutional engineering and political manipulation.  The change marked the beginning of a move towards the centralization of power on the executive.  This was preceded by the KANU-KADU merger which occurred in November 1964 when the opposition party KADU dissolved itself thus making Kenya a de-facto one-party State.  Thereafter several Constitutional amendments mainly intended to strengthen the hands of the executive at the expense of other state organs were put in place between 1965-1969.  By the end of the first decade of independence Kenya had emerged as a dorminant one party ‘personal rule’ regime (see e.g. Rosberg and Jackson 1982) in which the personal ruler increasingly marginalized the role of the party in the governance process.  Indeed throughout 1970s the Kenyatta regime was under the full control of an ethnic oligarchy that directly shaped the structure of access and thereby influenced the resultant inequalities in socio-economic life.  

2.2  The Moi Regime 

Moi ascended to power in August 1978 in a smooth transition as per the Kenyan Constitution.  The primary concern of Moi during his first two years in office was the neutralization of Kikuyu hegemony that Kenyatta had put in place (Oyugi, 1994).  In order to shake the foundation of Kikuyu unity, Moi launched an assault on GEMA.  This was necessary because GEMA had been on the forefront in the 1976 Change the Constitution Movement aimed at stopping Moi from succeeding Kenyatta in the event of the latter’s death.  But for political expediency, GEMA could not go alone.  The move was camouflaged in a resolution passed in July 1980 at a leaders Conference at the Kenya Institute of Administration near Nairobi to dissolve all tribal associations.  The dissolution of GEMA was followed by the dismantling of its vast economic empire, which was the source of its power and influence over the GEMA communities (Oyugi, 1994, 22-23). 

While the above process was in progress Moi also sought to entrench himself in power and also ‘strengthened’ the ruling party KANU as an instrument to be used in promoting personal political agenda.  Building in the Kenyatta heritage, he at once embarked on a political path that saw him marginalize most of the important politicians in the Kenyatta regime.  He then set out on a mission intended to remove all real and potential alternative centres of power.  This saw the subordination of the Central Organization of Trade Unions - COTU, Maendeleo Ya Wanawake Organization etc. to the ruling party.  Four years into his rule, he turned Kenya into a de jure one party state to pre-empt the launching of an opposition by party two opposition politicians - Oginga Oding and George Anyona.

By the mid 1980’s Moi had emerged as an effective personal ruler as he now had the ability to condemn and re-cycle the once powerful politicians.  Thus after the 1983 elections Moi attempted to infiltrate institutions and coerce individuals into having direct loyalty to him.  Furthermore the ruling party was made even “more powerful” as an instrument serving the regimes interests. 

The executive control of the Government was entrenched further by the passage of Act No.14 of 1986.  It removed the security of tenure of the Attorney-General and Controller and Auditor-General exposing them to manipulation by the executive.  Suffering the same fate was the Controller and Auditor-General’s office which as the public’s watchdog over tax-payers finances was weakened.  This trend was to continue when in 1988 further amendments to the Constitution removed the security of tenure of judges and offices of the members of the Public Service Commission.  The end result was that the above offices lost the capacity to make impartial decisions. (Weekly Review, August, 1988).  The net result was that the amendments vested in the President an unqualified discretion in relation to the appointment and tenure of the most crucial offices in the Public Service.  It is important to note that the above bills were passed in Parliament without much opposition.  This can be explained by the fact that from the late 60s, parliament had emerged as an institution that could only criticize but without the temerity to block any executive initiative. 

On the economic scene Moi just like Kenyatta also concentrated on the promotion of the economic interest of his tribesmen and their allies and likewise engaged in factional inter-play to achieve his political objectives (see also Himbara 19...). 

While it is true that the period prior to the 1992 Multi-party elections never witnessed serious debates on constitutionalism, it is worth noting that certain steps that bear on the constitution had been taken in Kenya.  These include the Committee on the National Code of conduct established in 1983 and whose mandate was to solicit views aimed at establishing a “normative dialogue” between the State and the Citizens (Ngunyi 1996: 207).  It however died a natural death.  The point to stress here is that by the late 1980s Kenya had emerged as a regime under personal rulers that cared least about socio-economic democracy. 

3.0  The Multi-Partyism Debate: 1990-91 

As would be expected, the demand for openness in the political system grew out of twenty years of political oppression and economic discrimination characteristic of both the Kenyatta and the Moi regimes.  Pressure for democratic change started earnestly in early 1990 in what Kenyans were later to refer to as the multi-party debate.  The call came from both individuals and civic organizations and included leading Clergymen who agitated for the political space to be widened. 

In July 1990 Kenyan experienced unprecedented civil and political upheaval.  The civic energy activated by the campaign for pluralism had created two opposing blocs, one a coalescence of forces committed to preserving the status-quo and the other of those committed to fundamental reforms.  It was against that background that the ‘ruling party’ (i.e. the president) established a review committee in June 1990 to address in a constitutional context, the emergent polarisation within the party and state. 

The Committee took sixteen days going round the country to collate views of citizens regarding the party’s nomination and election rules as well as the party’s code of discipline.  Although the terms of reference of the committees were too narrow in scope thus falling short of satisfying the majority of the citizens, the people were nevertheless  determined and did speak out on diverse opinions and issues aimed at strengthening democratic institutions, improvement of public accountability, restoration of faith in the electoral process and strengthening commitment to the Rule of Law and respect for Human Rights. 

However the final report by the Committee either ignored or intentionally omitted the very issues that Kenyans had suggested demanded urgent attention.  For example the report side-stepped all the major constitutional questions raised in the different memoranda and concentrated on nomination procedures, the 70% election rule, and the party’s disciplinary mechanism.  The ostensible reason given by the Committee for this avoidance was that the proper forum for effecting amendments to the constitution was Parliament, not the ruling party. (Kibwana & Wachira, 1996, 452). 

These partial reforms by the ruling Party in 1990 did not satisfy the masses.  The only concession being the president’s announcement that he had instructed the Attorney-General to restore the security of tenure of judges, the Attorney-General and the Controller and Auditor-General. 

This scenario resulted in civic bodies and opposition activists demanding for more concessions from the government.  In February 1991, Oginga Odinga a leading opposition figure formed the National Democratic Party (NDP) and sought it's registration.  He was however denied registration thus paving the way for other civic bodies to also take the mantle to press for changes.  By mid 1991, the pressure for democratization was accelerating.  In June of that year, the Law Society of Kenya and the CPK Church joined hands and unveilled the Justice and Peace Commission - Kenya (JPC-K) while the opposition activists followed closely on their heels by forming a pressure group known as the Forum for the Restoration of Democracy (FORD) in July of the same year.  Those two bodies were formed in response to denials by both the registrar of society and the High Court to authenticate the existence of the National Democratic Party.  (Nairobi Law Monthly No.37, 1991). 

The twin assault of the JPC-K and FORD among other local pressure groups and the external forces spearheaded by donor countries who accused Kenya of Human Rights abuses, corruption and lack of democracy finally compelled the KANU National Governing Council to recommend that Section 2A of the Constitution should be repealed (this section provided for the existence of one party only).  Thus on 10th December 1991, Section 2A was repealed paving way for formation of opposition parties before the 1992 general elections. 

4.0  Transition to Multi-Partyism: The 1991 and 1992 Constitutional  Amendments 

On 10th December 1991, Parliament repealed Section 2A which had hitherto made Kenya a de-jure one-party State.  The scenario was reminiscent of 1982 when Section 2A was inserted into the Constitution.  It took only one sitting and Kenya once more opened avenues for the existence of a multi-party State.  However this particular enactment fell short of providing an enabling environment for pluralist politics since previous enactments which favored a one-party State were still intact. 

The repeal of Section 2A in the Constitution paved the way for prepositions for elections under a multi-party system which were due in 1992.  The government went ahead and amended the National Assembly and Presidential elections act in 1992 which were meant to create an enabling pluralist environment for electoral competition.  

The election Laws (Amendment) Act, 1992 endeavored to provide for, inter alia the following:- 

- enhancement of the powers of the Electoral Commission in the supervision of elections;
- political party nomination which was to be financed by each Party.

The consolidation of electrical laws brought this supervision of local government elections under the electoral commission and extending anti-defection law to cover local authorities.  The electoral laws although meant to facilitate pluralism in electoral politics also spelt doom for some opposition parties.  For instance previously preliminary elections were financed by the State; but the new ruler’s effect was that the new parties which had no financial base, could not easily conduct successful nominations. 

In the count down to the 1992 elections, parliament passed the Constitution of Kenya (Amendment) Act of August 1992.  The bill which eventually became law was first published on 3rd March 1992.  The bill sought to restructure the State system to conform to a multi-party framework.  It proposed among other issues the substitution of the vice-president post with that of the Prime Minister, the limitation of presidential tenure to two five year terms, the introduction of a reform ... in determining fundamental issues.  Legal aid for indigent citizens in human rights cases, extension of the powers of the electoral commission to cover local authority elections and the repeal of presidential emergency powers over North-Eastern province and contiguous districts. (Constitution of Kenya (Amendment) Bill 1992). 

The proposed Bill was however rejected by both opposition parties and individual critics such as George Anyona and Timothy Njoya.  An inter-party consultative meeting was thereafter formed on 9th March 1992 when the parties formed a legal committee that would take the Government to court over the Bill which they thought was basically meant to strengthen the President’s powers.  They observed that the proposed changes should be discussed further before being enacted. [Daily Nation, 8th, 9th, 10th March, 1992]. 

Arising from the above complaints, the government withdrew the bill from the House.  In June 1992 the government republished the Bill, which now resorted to the old scenario and retained the vice-president’s post at the expense of the Prime-minister.  It also mandated the electoral commission to independently conduct and supervise the National Assembly, presidential and civic elections.  In the case of Presidential election, the Bill added an additional requirement that the winning President besides garnering the highest number of votes cast as well as winning a parliamentary seat has to receive a minimum of 25% of all votes cast in at least five of the eight provinces.  The provisions also provided for a run-off in the event that the first round didn’t produce a clear winner.  Furthermore, the president's tenure was limited to two five year terms while the presidents powers to unilaterally apply emergency powers over North-Eastern Province was scrapped.  However, the referendum provisions were omitted.  Subsequently on 5th August 1992, Parliament by a majority vote of 140 against 1 passed the Bill (Daily Nation August 6, 1992).  It is thus within the above framework that the multi-party elections were conducted. 

5.         The Constitutional Debate: 1992 - 1996 

During the run-up to the 1992 multi-party general election’s, most civil society groups and certain opposition activists foresaw that there was need to rewrite the Constitution in order to first facilitate an enabling environment for free and fair elections, and second to enact Laws which would reflect the transition from a one party state to a multi-party one.

This realization arose from the fact that the existing nature of the state was oriented to the one-party era.  This scenario saw civil society groups and the existing opposition political parties call for Constitutional reforms to be enacted through a National Convention.  However this was not to be, mainly because key opposition leaders were busy organizing their supporters with the belief that they would win the 1992 elections.  The elections therefore went on and KANU emerged as the winner. From that time on, the opposition parties and civic bodies went back to the drawing board and came to the conclusion that one of their major undoings in the 1992 election was the constitution. 

The opposition parties and civil society groups then put constitution reform as the main agenda after their debate in the 1992 multi-party elections.  Thus emerged in the Constitutional reform debate to opposing groups: One comprised of the opposition parties, religious bodies and other pro-democracy civil society groups, and the other made of the ruling party KANU which opposed the changes which were being pursued by the former.  The opposition parties for a long time regarded the Constitutional arrangement as flawed and impinging on their collective political ambition of capturing State power.  They thus dedicated most of their efforts towards the attainment of certain electoral reforms which would put in place an acceptable structure for fair political competition. 

On the other hand, KANU’s staunch supporters although not quoting official policy, were always quick in letting Kenyans know that they would only accede to Constitutional Change if it accommodated a federal structure.  Such was the case in the countdown to the 1992 elections that any opposition call for Constitutional Change would be met by similar calls for a federal structure.  The KANU stalwarts were at it again after the 1992 elections when they openly declared that they had a draft Majimbo Constitution that they would table in parliament.  This call immediately gave momentum to the Constitutional debate in Kenya.  The first group to react to the above call was the Church. 

In March 1994, the 18 Bishops of the Roman Catholic Church released a pastoral letter in which they called for, among other things, the complete revision of the Constitution by a large constituent body of experienced and competent citizens representing all segments of the society.  They argued that the revision of the Constitution should not be left to politicians alone. (Daily Nation, 16.3.1994).  This position was later supported by the Church of the Province of Kenya (CPK) which called for the setting up of an independent commission incorporating all shades of opinion to redraft the Constitution.  However no meaningful response to this demand came from the State.  Thus in November 1994, the debate was revisited when the Law Society of Kenya (LSK), the Kenya Human Rights Commission (KHRC) and the Kenya Chapter of the International Commission of Jurists (ICJ) unveilled a proposal for a Model Constitution (Model Constitution of Kenya 1994).   

It was under these circumstances that the state also conceded that the constitution as it stood did not reflect the changed political climate.  The Attorney-General Amos Wako conceded this much when he told parliament that constitutional reforms were likely to be put in place before the 1997 general election.  The bone of contention then was the format to be used in the enactment of the constitutional reforms.  The popular feeling seemed to be that the decision ought to be left to some kind of constitutional conference or national referendum but according to the state, the modalities would be announced by Moi at an appropriate time subject to the government’s decision to establish a constitutional review Commission.  The AG said the review would allow every Kenyan as a group or party to present his or her views (W.R. Nov. 11, 1994, 12-13). 

The build-up towards constitutional reform was to gain momentum when Moi in his new year message of 1995 assured Kenyans that the constitution would be reviewed (Nation 1.1.95).  Moi stated in his message that he planned to invite foreign constitutional lawyers and experts to the country to embark on the process of gathering views from Kenyans and which would then form the basis for reforms in the Constitution.  By putting constitutional reform on the national agenda and in all probability declaring 1995 the year of constitutional reform, Moi seemed to be confirming that the KANU Government was willing to undertake a serious review of the Constitution. 

By his new year pronouncement Moi seemed to have wrestled the mantle of constitutional engineering from the opposition parties and civic groups.  The country seemed to be unanimous that Moi’s signal was a clear indication that Keyans now could reason together in the quest for constitutional reforms.  The KHRC however did not relent in its efforts to ensure that the masses had an input in the constitutional reform agenda.  It convened several seminars and workshops which were meant to solicit views from civic bodies representing a cross sector of the Kenyan society - views which were finally used to unveil the model constitution of 1994.  Critics were quick to correctly observe that the model constitution represented the elite views and therefore the model constitution could not be used as an achor representing the interests of Kenyans.  The civic bodies involved in the drafting of the model constitution later dubbed themselves as the citizens coalition for Constitutional Change (4C’s).  A secretariat was thereafter set-up with a Steering Committee representing various organizations within the Civil Society.  It’s main objective was to draw up a reform agenda which would ensure a wider participation by the people.  The constitutional reforms, they noted should be enacted through a National Convention. Their second objective was to de-politicize the whole process, a feet which they soon found was impossible to achieve since they found that they lacked the institutional capacity or the appeal to mobilize the masses without the direct involvement of politicians.  Their initiative thus became still born as it did not take the constitutional reform agenda any step further. 

Although the initial reaction to Moi’s message indicated that Kenyans were ready for Constitutional Change, subsequent reactions as was to be expected saw KAMATUSA[1] hardliners such as Nicholas Biwott and William Ole Ntimama and KANU hawks such as Shariff Nassir and other prominent members of KANU insisting that the constitution would only be chanted if it accommodated federal system of Government.  What followed then was an acrimonious debate with both pro and anti-federalism activists restating their claims.  KANU hawks seemed to hold the belief that their pro-majimbo stance would deter the opposite side from demanding Constitutional Changes. 

The upbeat mood for constitutional reforms set-up by President Moi was to change drastically in June of the same year.  While ruling out radical constitutional change in his Madaraka Day speech, President Moi also made it clear that he had changed his mind about inviting foreign-experts without being specific.  The president said that some events had taken place in the country which clearly indicated that those advocating for constitutional reform were not altogether sincere.  He emphasized however that any constitutional changes that may be effected would have to be carried out through Parliament which he said was the only organ empowered to amend the Constitution.  Opposition politicians immediately issued statements accusing the President of reneging on his earlier promise to give Kenyans an opportunity to participate in the country’s reform process.  The opposition parties were of the view that constitutional changes should first be discussed by all Kenyans and that Parliament should only be called upon to ratify what Kenyans had all agreed on. (W.R June 9, 1995, 9). 

In August 1995 the ruling party further made drastic decisions on constitutional reform.  After a closed door meeting of the top organs of the ruling party, KANU sent a message that it would not agree to be intimidated into implementing constitutional reforms.  The ruling party also indicated that it would no longer be liberal in registering new opposition parties and on the same note clearly stated that it would be uncompromising with NGOs and diplomats who engage in politics. (W.R. August 25, 1995). 

This rigid position taken by KANU meant that the opposition and the civic bodies had to re-evaluate their relevance in the constitutional reform agenda.  Thus for a long time preceding April 1997 the Opposition parties and Civic bodies held in-house consultations and they were all unanimous on the need for a Constitutional Convention.  But that is where the consensus ended; for the same bodies disagreed over who should initiate the talks as well as who would manage the process of convening a national Constitutional conference.  Three groups thus emerged due to the ownership question. 

First was the National Opposition Alliance which was launched in November 1995 and was fronted by Messrs Mwai Kibaki (DP), Kijana Wamalwa (Ford-K) and Martin Shikuku (Ford-A).  The second group was known as Opposition Solidarity and comprised Messrs Kenneth Matiba (Ford-A) and Raila Odinga (Ford-K, now in NDP) who early in May 1996 called a press conference to announce that they would commence plans towards convening a conference to review the Country’s Constitution. The third Group comprised of the Churches and other Civic bodies.  It was this latter group which came up with a set of minimum reforms which they insisted should be implemented before the 1997 elections.  The minimum reforms that both the Church and the 4C’s demanded to be put in place were as follows:- 

First - The Electoral Commission as established by Section 41 of the Constitution.  The two bodies argued that the sitting Electoral Commission which was solely appointed by the President could not be independent.  They therefore recommended that an independent, non-partisan, and inter-party electoral commission be established with fair representation from the government, the opposition and the organized civil society.  They thus sought that Section 41 of the Constitution be amended. 

Second - The preservation of Public Security Act (Cap 57), Part II as read together with Part III of Cap 57 gave the President power to, among other things, detain persons without trial, restrict the movement of persons, control aliens, and censor the media.  The two bodies stated that these provisions were subject to abuse by the executive arm of the government especially in an election period.  They therefore sought the repeal of this Section to be replaced by appropriate provisions to deal with natural calamities and disasters. 

Third - Section 56 and 57 of the Penal Code Cap 63 dealt with seditious intention and publications.  The two bodies observed that these provisions were subject to abuse as they lent themselves to speculation and conjencture.  They therefore recommended that these provisions be applied cautiously and that 56 (1) (b) be repealed. 

Fourth - Cap 128 of the Chief's Authority Act which gave Chiefs immense powers with respect to persons in their jurisdictions.  They observed that this was one of the most outdated and abused laws in the Statute books.  They recommended that it be repealed in its entirety.

Fifth - The two bodies observed that Section 24 of the Constitution gives the President absolute powers with respect to the Constitution and abolition of, appointment to and termination of appointment from key public offices.  The offices of the Attorney-General, Chief Justice, Head of Civil Service, Chief of General Staff, Commissioner of Police, members of the Public Service Commission and Judges would all fall under this category.  In order to ensure the independence of these offices the two bodies recommended that presidential appointments to and termination of appointment from any of the offices be subjected to confirmation by 65% of the members of the National Assembly. 

Sixth - The two bodies recommended that the “25% - 5 province” rule provided in Section 5 of the Constitution should be amended to provide that in addition to the above rule a candidate must receive a minimum of 58% of all the valid votes cast in the election before he can be declared as elected president. 

Seventh - The two bodies noted that the Constitution makes no recognition of independent candidates in an election, they therefore recommended that provision be made in the Constitution as well as the local Govt Act (Cap 265) to allow candidates not affiliated to any political party to run for presidential, parliamentary and civic elections. 

Eighth - The two bodies noted that Section 33 of the Constitution gives the president absolute powers to nominate twelve (12) members of Parliament.  They reiterated that his provision was open to abuse and could be used to solidify the electoral majority of the party in power.  The two bodies recommended that nominated members of Parliament be appointed from special interest groups that are unrepresented or under-represented through the election subject to ratification by a majority of 65% of the elected members of Parliament. 

Ninth - The two bodies observed that the public order Act (Cap 56) severely restraint the freedoms of association, assembly, and expression of the people.  They therefore recommended that Part III of Cap 56 as far as it relates to control of public gatherings be amended to require only that organizers of public gatherings notify the Police Officer commanding the relevant division within reasonable time for purposes of provision of security. 

Tenth - The two bodies recommended that there was need to amend the Constitution to provide space for the formation of a Coalition Government or a Government of national unity catering for the broad interests of all sectors of the society.  They also sought that the exchequer should make a contribution to the campaigns of each political party and Presidential Candidate’s campaign. 

The Church and the 4C’s maintained that if the above minimum reforms were implemented then the goal of free and fair elections could be attained.  Meanwhile the National Opposition Alliance and the Opposition Solidarity also continued to press for Constitutional Change although their strategies differed.  Those efforts however received a set-back when the Attorney-General Amos Wako announced in June 1996 that Constitutional Changes could not be effected until after the 1997 elections (Daily Nation  25, 6, 1996).  This announcement met protests from the Opposition political parties and civic bodies who vowed to hold a Constitutional Convention at a date to be named.

The Attorney-General pronouncement was a reaction to the formation of the National Convention Planning Committee (NCPC) which was formed as an umbrella body to represent all the factional interests in both the opposition parties and the civil society.  The NCPC was thus the mouth piece of all the groups represented within it.  The constitutional reform agenda was formed out of the realization that the political class had a lot of factional interests that was derailing the constitutional reform agenda.  The NCPC            went ahead and set-up sub-committees which were entrusted with working out the modalities to be used when the Convention was called. 

The NCPC finally called for a delegates conference on 5th April, 1997 where the, National Convention Assembly (NCA) was established and on April 6, 1997, the NCA resolved that the former National Convention Planning Committee together with sixteen provincial delegates and the representatives of the Youth Movement would serve as the National Convention Executive Council (NCEC) which was to be the executive organ of the NCA.  It was under the direction of the NCEC that the Constitution reform rallies of May 31, July 7 and the strike of 8th August took effect. 

The measures which the NCEC took to pressurize the government to effect reforms bore fruit on July 17, 1997, when the government announced that it would effect reforms before the General Elections.  This was preceded by President Moi’s initiation of dialogue on Constitutional reforms when he met religious leaders from the Christian and Muslim Sections on July 15, 1997.  And on July 22, 1997 fifty-five Opposition members of Parliament and the non-parliamentary members of NCEC met at County Hall and among others, agreed that NCEC was an umbrella body which represented opposition interests and therefore would be the body to hold dialogue with or negotiate reforms with the Government.  This was apparently a reaction to the leader of the official opposition Wamalwa Kijana’s meeting with Moi.  A move which the NCEC viewed as a divide and rule tactic. 

The process of negotiation seemed to be prospering when in the first week of August, both NCEC and KANU consented to Constitutional reform mediation by the religious community.  However during the launch only the NCEC turned up while KANU stayed away asserting that it could only negotiate with the elected representatives of the people.  It was under these circumstances that the Inter-Parties Parliamentary Group meeting (IPPG) was born.  The IPPG strategically rendered the NCEC irrelevant as it restricted the reform agenda to the parliamentarians. Furthermore most opposition politicians abandoned the NCEC and decided to participate in the IPPG reforms.  However about 12 radical MPs stuck with the NCEC and refused to participate in the IPPG talks. 

After two weeks of deliberation in County Hall (parliaments’ annex) and a further two weeks of debate in Parliament the IPPG came up with the following minimum reforms which have since become law:- 

First - an additional clause in Section one to make a declaration that Kenya is a multi-party democracy. 

Second - Section 41 to be amended to provide for minimum number of 4 and maximum 21 in the membership of the Electoral Commission (EC) so that the opposition MPs get appointed before the elections. 

Third - Section 33 to be amended so that the 12 nominated MPs are proposed on a ..... basis by all Parliamentary Parties (any party with a minimum of 7 MPs in the House). 

Fourth - period of nominations to last two days 

Fifth - Campaigns to be managed exclusively by the EC with no interference from the provincial administration. 

Sixth - The EC to be given powers to hire prosecutors to expedite the process of election petitions. 

Seventh - Public meetings or procession to require notification to area Police boss but meet-the-people tours and harambees need not be notified.  Meetings to last from 6 am. to 6 p.m to avoid night meetings. 

Eighth - Repealing all sections that deal with Sedition in the Penal Code. 

Ninth - Sections of the Chief's Authority Act that have become obsolete to be repealed. 

Tenth - Amend the Kenya Broadcasting Corporation Act to provide for lawful equal coverage of all political parties. 

Eleventh - Amendment to the preservation of Public Security Act to abolish detention without trial. 

Twelfth - Amend Societies Act to give the registrar a maximum of 120 days in which he should respond to any political party seeking registration. 

Thirteenth - Amend Section 7 to allow the winning President to form a government of national unity or a coalition government. 

The Constitution of Kenya Review Commission Bill was also debated in parliament and provides for the establishment of a commission which will after the elections start the process of gathering and collating views from the public on the changes they wish to see in the Constitution. 

The IPPG reforms package has met condemnation from both the NCEC and the Church.  The NCEC on it’s part described the recommendations as greatly flawed and that the reforms didn’t address the basic problems that caused the Constitutional Crisis.  Dr. Kamau Kuria one of the NCEC’s Co-Convenor observed that the MP’s were not greater than the people who elected them and they should not therefore be given the powers to change the Constitution as they wish.  He submitted further that the problem manifested itself again in the Constitutional Review Commission where the ordinary people would merely make suggestions and Parliament would draft the final document. (D.N. Sept 12, 1997). 

The Church on its part observed that the reform Bills assented to by the Presented were inadequate for a free and fair General Election and called for the extention of the life of Parliament to enact further reforms. (D.N. Nov 8, 1997). However their request was nipped in the bud when President Moi dissolved Parliament and the country started gearing for the December 29, 1997 General Elections. 

6.0       The Reform Bill: Challenges to the IPPG Package 

The Constitutional reform debate in Kenya centred mainly on first, the need to enact constitutional reforms before the 1997 General Elections, Second, the mechanism to be used in enacting reforms before the 1997 general elections and thirdly the depth of reforms to be undertaken whether minimum or comprehensive. 

Under the current constitution, parliament is the only institution directly empowered to alter the Constitution.  Section 47(1) of the Constitution provides that subject to this Section parliament may alter this constitution.  The constitution further provides that a bill to alter it must be supported in the National Assembly at it's sceond and third readings by the votes of not less than sixty-five per cent of all the members of the Assembly excluding ex-official members.  This Section therefore gives Parliament the final say in regard to any amendment to the Constitution.  However an amendment to a State’s Constitution should ideally be effected after an input by the citizens of that nation.  The proposed amendments should therefore be taken to the citizens for approval, disapproval or an amendment of the issue at hand.  Several mechanisms could therefore be used to solicit views for example a referendum, a Constitutional Convention, a Constituent Assembly, a Presidential appointed Commission or Parliament which was used recently. 

However there are several factors which make Kenya’s parliament unsuitable as the sole mechanism for enacting Constitutional reforms.  Historically parliament has performed the role of using constitutional amendments to strengthen the executive.  Secondly, the composition of the dissolved parliament was fitted towards KANU and in any case the amendment did not have any input from the citizens. Kenya’s 7th Parliament was an ineffective one which ‘slept’ for 41/2 years and only woke-up when members realized that their role had been usurped by the NCEC thus necessitating the pulling up of the IPPG decoy. 

The IPPG package is for all purposes a step forward but questions about the government’s commitment to the process still linger.  The speed with which President Moi dissolved Parliament immediately after he assented to the bills to become law caught many IPPG proponents unaware.  There seemed to be a consensus that the life of parliament needed to be extend for the IPPG reforms to take root. 

Secondly, the IPPG has been criticized for not incorporating recommendations by the Kenya espiscopal conference, the National Council of Churches of Kenya (NCCK), the National Convention Executive Council (NCEC) and the Law Society of Kenya (LSK). (Daily Nation, Nov 8, 1997).

Thirdly, critics have correctly observed that the IPPG package left the extensive Presidential powers unscathed.  The absolute right to dissolve parliament which he recently used is a case in point.  Fourthly, the amendment to Section 41 of the Constitution has not ensured the independence of the Electoral Commission.  The President still has the majority in the Commission, Justice Chesoni who has been adversely accused since 1992 is still the Chairman, and the appointment of 10 Commissioners from the Opposition is left to the goodwill of the president which any future president can still abuse. 

Fifthly - The 50% majority rule on top of (25% - 5) in five province for the winning President hasn’t been enacted as well as the provision for independent candidates. 

However the response of KANU has been that some of the above issues have to be referred to the masses before being enacted.  They will therefore have to wait for the Commission to start its duty. 

7.0            Conclusion 

The re-introduction of multi-party politics in Kenya was expected to propel further the build-up towards plural politics in Kenya.  However the first five years experience have been quite a disappointment.  Although the repeal of Section 2A in 1991 legalized the formation of more political parties, a lot of statutes which reflected the one-party rule tendencies were left intact thus showing the space meant for plural politics. 

The IPPG reforms have repealed some of those statutes. However the executive powers still remain unfettered.  The new law now starts with a preamble that Kenya shall be a multi-party democracy.  This therefore means that the constitution must reflect the tenets of liberal democracy.  It becomes essential therefore that the concept of separation of powers must be re-examined.  The president's current powers have allowed the holder of the office to manipulate both the legislature and the judiciary thus infringing on their role as the ‘Check and balance’ on the executive. 

It is therefore mandatory that as the Commission goes around collating views, it should take the recommendations towards the curtailing of presidential power very serious.  The notion of participatory democracy should also be embraced in Kenya. This is important since in Kenya’s history at no time has the citizens been directly involved in determining their destiny.  The independence Constitution of 1963 was negotiated by a majority of self-appointed leaders who to a large extent got legitimacy arising from the Colonial situation and basically they were negotiating for a Constitution to facilitate transition.  Subsequent amendments to the Constitution up to 1990 were always done at the whims of the executive and the recent IPPG amendments although arrived at by the representatives of the people lacked the input of the citizens, who since independence have never directly participated in determining the Constitution they want. 

Although Representative Democracy does not foresee a situation where each citizen can directly have an input in Constitution-making, it is also obvious that most parliamentarians lack Constitutional knowledge or expertise to oversee the process. The solution then can be found in a Constitutional Convention.  The Convention is normally a Conference of delegates elected from different regions or sectors of a country with a mandate to deliberate on the country’s Constitution.  The proponents of this mechanism argue that delegates to conventions are more likely to be representative of the popular will of the people in constitutional matters.  This arises from the fact that delegates to the Convention are elected basically to represent the views of their sectors on Constitutional issues.  This is in contrast to members of Parliament who are in the National Assembly to represent their constituents multiple interests.  The Convention seems to be the most realistic way of bringing the Constitutional Crisis in Kenya to rest and not the Commission appointed by the president. 

REFERENCES 

Bienen Henry: Kenya: The Politics of Participation and Control.  Princeton: Princeton University Press, 1974. 

Constitution of Kenya 1963 edition. 

Constitution of Kenya 1969, per edition. 

Constitution of Kenya Amendment Bill 1992. 

Daily Nation 8th, 9th, 10th March 1992. 

Daily Nation August 6, 1992. 

Daily Nation November 8, 1997. 

Election Laws Amendment Act 1992. 

Gertzel Cherry: The Politics of Independent Kenya, 1970, London Heinemann. 

Gertzel Cherry “Regionalism in Kenya” Proceedings of the Universities of East Africa   Social Science Conference 1965. 

Himbara D. Kenya Capitalist State (Nairobi: EAEP, 1994). 

Jackson, R and Rosberg Carl G, Personal Rule in Black Africa Berkeley, University of California Press, 1982). 

Kivutha Kibwana & Wachira Maina: State and Citizen: issues Constitutional and Legal Reforms in Kenya's Emergent Multi-party Democracy: in Oloka-Onyango, Kibwana and Maina Peter (ed) Law and the Struggle for Democracy in East Africa (1996). 

McAuslan J.P.W.B and Ghai, Yash Public Law and Political Change in Kenya (Nairobi: Oxford University Press, 1970).Nairobi Law Monthly No.37, 1991. 

Ngunyi Mutahi: Resuscitating the Majimbo Project Politics of Deconstructing the Unitary State: in Olukoshi and Lisa Laakso, “Challenges to the Nation State” NAT. Uppsala. 

Okoth-Ogendo H.W.O “The Politics of Constitutional Change in Kenya Since Independence 1963-1969” African Affairs Vol.71 No. 282. 

Oyugi W.O: Uneasy Alliance: Party-State Relations in Kenya in Oyugi W.O. (ed) Politics and Administration in East Africa (1992). 

Oyugi, W.O: Inter - Ethnic Relations in Kenya: in Okwudiba Nnoli Ethnic Conflict in Africa Dakar: CODESRIA (forthcoming). 

Weekly Review, November 11, 1994. 

Weekly Review, June 9, 1995. 

Weekly Review, August 25, 1995.


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