the politics of constitutional change in kenya

8/7/2019 the politics of constitutional change in kenya

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The Royal African Society

The Politics of Constitutional Change in Kenya since Independence, 1963-69Author(s): H. W. O. Okoth-OgendoSource: African Affairs, Vol. 71, No. 282 (Jan., 1972), pp. 9-34Published by: Oxford University Press on behalf of The Royal African Society

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THE POLITICS OF CONSTITUTIONAL CHANGE INKENYA SINCE INDEPENDENCE, 1963-69

by H. W. O. OKOTH-OGENDOUniversityof Nairobi

CONSTITUTIONALSYTSEMSINAnglophoneAfrica have not had a happy history,especiallyduringthe last decade. Almost without exceptionthe independencedocumentshave either endedup in militarydustbinsor haveundergonechangeso profoundand rapid as to alter their value content and significancebeyondrecognition. Scholars trainedin the Westminstertradition,who tend to viewconstitutions simply as 'a body of rules which define and limit governmentalpower and regulatemajor political activity in the state', have explained thisphenomenon primarilyin terms of the inherent inability of Africans to runconstitutional systems.' There is a strong temptation to give generalizedexplanationsfor the widespreadbreakdownof constitutionsin Africa;explana-tions which tend to leave unexploredcertainbasic factorsin the operationofconstitutionalsystemsin the new nations.2Of these we maysingle out threerelevantpoints. The firstis that all 'West-minster constitutions' importedinto Africa were almost exclusivelyconcernedwith stateinstitutions,powerdistributionandlimitation;noneof themcontainednormativedefinitionsprescribingthe purposesof government. Bills of Rightswerewritteninto constitutionsnot as minimumprescriptionsof justiceandgoodgovernmentbut aslimitationson governmentalpower-this notwithstandingthefact that if they survive alteration they might eventually come to performnormativefunctions,particularlyas legitimatingfactors.The second is the very 'home-grown'nature of customs and conventions ofgovernmentand theiroperationboth as definitionsof purposeandlimitations ofexcesses. African governments which have attempted to administer West-minsterprincipleshave shown fantastic confusionas to whatthese areand as totheir efficacy.The author, who is shortly to take up a lectureship in law at Nairobi University, is atpresent a student at Wadham College, Oxford. This is arevised version of a paper presentedin January 1971 at St Antony's College, Oxford. It was also discussed on 22 April 1971at the Netherlands School of Economics, Rotterdam.1. See for instance Friedrich, in Patterns of African Development, edited by Spiro(New York, 1967), as interpreted and criticized by Professor Y. P. Ghai in his inaugurallecture 'Constitutions and the Political Order in East Africa', Series No. 18 UCD.2. Drastic amendments as a method of constitutional change are predominantly an Eastand Central African phenomenon. The major factors contributing to constitutionalbreakdowns (leaving aside eccentric internal colonial systems such as South Africa) havebeen military coups which have ravaged at least 28 African countries, civil wars (Chad andSudan), and outmoded forms of monarchical rule (Ethiopia and Morocco).

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10 AFRICANAFFAIRSThe third factorrelatesto the logic of constitutionaltransplantationitself andthe natureof the individual constitutions which were transplanted. Althoughthese showed little interest in normativeprocesses, they neverthelessshowed

remarkablesensitivity to the compromisenature of African political activitybefore independence. As the minimumand necessary adaptation,the colonialpowers imposed upon the new African regimes constitutions which wereinherentlyfragileand which dependedfor their stabilitylargely upon the main-tenance of good public relationsin politics-the one thing which most rulingelites were not preparedto guarantee.Apartfromthesefactors,anyaccountwhichpurportsto give an explanationofconstitutional change in African countries must also examine the pressuresoperatingupon the new power elites, the directionin which they were manipu-lating constitutions,and the motivesunderlyingthe manipulations.In Kenyathere has as yet been no majorbreakdownof public order,nor anydiscontinuityin constitutionalgovernment. But there have been such drasticchangesin the 1963constitutionaldocumentthat a properexplanationmaywellprovide a clue to the general problemof legitimizing constitutionalsystemsinAfrica. The period consideredhere has seen ten constitutionalamendmentswhich divide roughlyinto two phases: the first from 1963-5, the second from1966-9. Closelylinked with these are certainaspectsof the law of public orderwhose operationis complementaryto the major constitutional amendments,and which will also be consideredhere.3In this articleit will be arguedthat both the constitutionand the processofamendmentwere used almost exclusivelyto solve political problems,some ofwhich were of a public and defensiblenature,othersprivate and indefensible.The majorthemes to be discussed will be centralization,stabilityand legitima-tion on the one hand; andpoliticalsurvival,public participationand successionon the other. In tracingthese themes the patternas faras possiblewill be firstto set out the political circumstanceswithin which any particularamendmenttookplace,followedby the amendmentitself, and in discussingthe constitutionaldebate an attemptwill be made to separatepublic rhetoricfrom privatemoti-vation.Colonialfoundationsof the1963 constitutionaldocumentIn orderto give properfoundationto the argumenttwo coloniallegaciesmustbe brieflyexamined-the firstof apoliticalnatureand the secondadministrative.4In politicalorganizationandexpression,Kenyahas beenremarkablylackingininnovation and has remainedloyal to the patternsof organizationalbehaviour3. These include the operation of s.52 of Penal Code (prohibited publications); PublicOrder Act (Cap. 56); Preservation of Public Security Act (Cap. 57); Chiefs Authority Act(Cap. 128-formerly Native Authority Act).4. For the best treatment of these legacies, see generally the following:-C. Rosberg andJ. Nottingham, The Myth of Mau Mau (New York, 1966); C. J. Gertzel, The Politics ofIndependentKenya (Nairobi, 1970), and J. J. Okumu, 'Charisma and Politics in Kenya' inE. Af. Journal (February 1968).


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CONSTITUTIONALCHANGEIN KENYASINCEINDEPENDENCE 11and the politicalvalues of the laterpart of the colonialperiod. The patternofpolitical organizationmay be traced back to the administration'screation of'Local Native Councils' in the 1920s and 1930s. These Councils were neverintended in Kenya to function as political forums in any independent sense;being controlled and manipulatedas they were by the colonial administrativeofficers,especiallythe District Commissionerswho were their ex-officiochair-men. But they did have a nucleus effect in concentratingAfrican politicalawareness. They were the first attempt at 'representational'administrationinAfrican areasand consequentlywere closely associated with the emergenceoflocalleadership.With the formation of Kenya African Union in 1944, the Local NativeCouncils in many areas ceased to represent African political expression,although its hierarchycontained some 'LNC-trained' men whose grass-rootssupport was basically district-oriented.5 KAU and African political activitygenerallywere banned in 1953 following the declarationof the Emergencyinthe previous October. The ban createda vacuum in Africanpolitical life andonce againLNCs assumedconstitutionalsignificance;being used as late as 1954in the Lyttleton Constitutionto advise the governoron Africanrepresentationin the Legislative Council. The mainstreamof African political expressionhowever continuedoutsidethem; beingeitherunderground,orlargelysubsumedin the activitiesof the African trade unions in the Nairobi area.

In 1955, the colonial government began to encourage simple and orderlydevelopmentof Africanpoliticallife, which was-except in CentralProvince-to be organizeddistrict-wise. By 1957, when the administrationwas readyforthe firstAfricanelections,at leastsevenmajor'district' partieswere in existence,each of which was tribal and led by a tribalpersonality.6 This was the frame-work for the 1957 and 1958 elections, for the Lennox-Boyd Constitution of1958, and in the period leading up to the LancasterHouse Conferencein 1960.Against this background,what the formationof the Kenya African NationalUnion in 1960 signified was not the emergenceof a new political culture orideology, but simply-as stated in its inauguralmanifesto-'to bring unity ofpurpose and action, so necessaryin the nationalstructureof any country forfreedomandindependence.'7 The inauguralmeetingwhichwasheldin Kiambuwas attendedby leadersof thirty politicalorganizations.During the whole of this period there is likewise a complete absenceof the5. See generally George Bennett, Kenya: A Political History; the colonialperiod (London,1963). Prominent among these LNC-trained men was Oginga Odinga.6. See the list given by J. J. Okumu in 'Charisma and Politics', loc. cit. Okumu hasexcepted the Nairobi District African Congress from 'tribal' leadership but A. J. Hughes,in East Africa (Harmondsworth, 1969) notes at p. 118 that 'the repatriation of Kikuyu,Embu, and Meru from Nairobi... led to an influx of those from other tribes, in par-ticular the Luo. And so it was that political leadership in Nairobi became a contestbetween two Luo.'7. Declaration for proposed 'Uhuru Party of Kenya', March, 1960. Of the original 14Africans elected in 1957-8 seven were members of the 1971 Cabinet, and were still lookedupon as political chieftains in their home areas


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12 AFRICANAFFAIRSexpressionof any fresh values, distinct from those which werepart of the logicof colonialism. Once settlerdom had been accepted as a fact, the originalmessageby HarryThuku's East AfricanAssociationbased on a rejectionof thefundamentalpremisesof white ruleandon the restorationof alienatedland wasconverted into a general demand for equal distribution of settler rights andprivilegesor its corollary,the removalof disabilitiesimposed uponthe Africans,especiallyin land distribution and agriculture.8 There is nothing new in thispattern,which is a commonphenomenonin nearlyallsystemsbased on racialismas a philosophyof government:much of the political activity becomes centredon the demandforequal opportunities,and this is nearlyalwaysdefinedas givingthe oppressedwhat the oppressoralreadyenjoys.The upsurge in political activity after 1955 saw an interesting shift. Thepolitics of the Africanelected memberswere now organizedaroundthe transferof power; the new politicalidiom being ' UhuruSasa'. Much activityaccord-ingly went into organizationaltactics, especiallythe creationof a united front;correspondinglyvalue thinking and political education were significantlyde-emphasized. The late T. J. Mboya statedthis explicitly:

'For the effectivestruggle againstcolonialism.., .it has come to be acceptedthat you need a nationalist movement. I use these words advisedly, asopposed to a political party. A nationalist movement should mean themobilization of all availablegroups of people in the country for a singlestruggle.... Mobilization is planned on the assumptionthat for the timebeing what is needed is to win independenceand gain powerto determineone's own destiny.'9

This shift in priorityalsoputs into properperspectivethe early split in the ranksof the Africanelected members,especiallythe eventualformationof the KenyaAfrican DemocraticUnion1o(andthe AfricanPeoples'Party)and the case theyfinally took up-that of minority safeguardsin the event of power transfer.The split with KANU can be explainedas a problemof organizationaltactics,in which case KADU's strangealliancewith Euro-Asiancommunitiesbecomessimply another facet of the pre-independencepower struggle. Or it can beexplainedin terms of an absenceof strong commonfundamentalvalues; henceRonaldNgala, the KADU leader,was ableto elevateethnic fearsandanimositiesinto a politicalprinciplewhich was in fact given constitutionalform. In eitherview, KANU, which remained the dominant stream of political expression,8. See RosbergandNottingham, Myth of Mau Mau, pp. 35ff., wherethis changecouldimply the pre-eminenceof rural overurbanpolitics.9. T. Mboya,FreedomandAfter(London,1963),p. 61. See alsoOdinga'sviewsin NotYet Uhuru(London, 1966), and also J. J. Okumu,'Odinga and the Purpose of Inde-pendence', E. Af. Journal(October1967).10. KADU's forerunnerwasprobablytheKenyaNationalPartyformedinMay1959withthe objectives of regionalismand independence in 1968. Its leaders were MasindeMuliro (Chairman),E. V. Cooke(Vice-Chairman);RonaldNgala (Secretary)and ArwindJumidar(Treasurer).


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CONSTITUTIONALCHANGEIN KENYASINCE INDEPENDENCE 13wasnot only devoidof an ideologyof valuesbut partiallyfailed in its attempttocreatea 'united' front.It is in agrarianlandlawthat the administrativelegacyis especiallyapparent,"but it is alsoto be discernedthroughoutthe wholeof the administrativemachin-ery. The institutionsinherited at independencewereheavily weightedtowardsthe protectionof settler interests, and, in the case of governmentalinstitutions,they wereparticularlywell adaptedfor the controlof Africanpoliticalactivityatthe provinciallevel. Hence from the beginninglaw was used as an instrumentof class domination,particularlysince the colour differentiawas co-extensivewith the economic stratification.The full implicationsof this point are only appreciatedwhen read togetherwith the political legacy alreadymentioned. In the focusing of attention on'powertransfer'in the abstract,no attemptwas madeto examinethe institutionalbasis of that power in the hands of the colonialists. Once that transferwasachieved not only the values but also the institutions of colonial rule werereceived. This led to a mere formalsubstitutionof colourgroups(andhenceofeconomic groups) leaving unalteredthe class interests and hence the corres-ponding administrativepowerwhich must sustainthem.12The problem againstwhich this analysisof the 1963 constitutionand of thesubsequent changes is based may therefore be stated as the persistence ofinstitutions and values which were extremely ill-adapted to new operativedemands. The politicalpartiesreachedindependenceas merefederatedethnicloyalties grouped around individual personalities. Their immediate concernwas, for KANU the transfer of power, and for KADU its limitation in theinterests of ethnic minorities. The administrationespoused no tradition ofgovernmentby rules as a legitimatesystem, much less a constitutionas a sacredand basic law laying down the majorinstitutions of state and prescribingthenorms by and within which they must function.13 The idea of a constitutionwas thereforelargely alien to the history of governmentin Kenya and, evenmore significantly,it was at variance with the authoritarianstructure of theadministrativeset-up which was inherited from the colonialperiod and whichwas left virtuallyunshakenby the processof democratizationthat had been thepolitical pre-occupationsince 1954.14The constitutional document that finally led Kenya to independence was11. See the present author's outline views in 'Law Reform and African Law in EastAfrica', E. Af. Journal (December 1970).12. See Y. P. Ghai and Patrick McAuslan, Public Law and Political Change in Kenya(Nairobi, 1970), pp. 506ff. on the role of law in the colonial system, and A. Mohiddin,'The Changing of the Guard' (review of Professor Ghai's book) Mawazo 20, 2, 4 (Decem-ber 1970). A similar argument is outlined in my paper to the University Students Associ-ation of East Africa in 1969, 'The Role of Universities in the African Revolution', inFocus (1969).13. The Lennox-Boyd Constitution of 1958, the only attempt to lay down extensive rulesof government activity and political behaviour, was also the least permanent and funda-mental.14. For the structure and role of the provincial administration see C. J. Gertzel,'Provincial Administration in Kenya', J. Comr.Pol. Studies, 4, 3 (1968).


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14 AFRICANAFFAIRSpublishedin March 1963. Y. P. Ghaiand PatrickMcAuslan haveemphasizedthat it showed remarkabledistrust of power; and like manyof its Westminsterpredecessors,it showed extremesensitivityto the compromisenatureof Africanpolitics prior to independence.15 It thus institutionalizedand entrenchedthecolonial political legacy while at the same time imposing on the new centralgovernmentseverelimitations on its exercise of the powersinherited undertheadministrativelegacy.The basic frameworkofferedby KADU was designed to accommodatetwobroad categoriesof people. There were the Euro-Asiancommunities whoseinterest in aligning themselves with KADU was to establish principles ofcompensationfor settlers and civil servantswho wantedto leave Kenya; and ofproperty rights and protection againstdiscriminationfor those who wished tostay. And there were 'the minority groups' amongst Kenya's own peoples.In their case, the fear on which KADU's propagandawas centred was thedominationof KANU by the Kikuyu and the Luo, and their allegedintentionto take over the lands of these 'minority' groups. Within this categorytherearose two secessionistmovements-the Somaliin the NorthernFrontierDistrictdemandingcomplete secession and the Arabs in the coastalstrip preparedtosettle for autonomy. The Masai moreovereven requestedthe Britishgovern-ment to stayin Masailandafter otherpartsof Kenya had becomeindependent16In the event, the constitutionaldocument containedtwo elaborateschemesofpower limitation-the first providedthroughthe regionalsystemitself and theotherby the Bill of Rights provisions.The basic characteristicof regionalismwas its geographicaldistributionofpower and the generalbenefit allocationfollowing that pattern. The regionswere so far as possible delineatedin such a way as not to split up any ethnicgroup between differentregions.1 The constitution then proceeded to pre-scribe an extremely detailed power distributionbetween the centre and theregions. The former,it is true, retainedimportantpowersof intervention,forexample,overgrantsandloans, the implementationof internationalagreements,and emergencysituations.18sThere was alsothe omnibusclause:

'The executive Authorityof a Region shall be so exercisedas... (a) not toimpedeor prejudicethe exerciseof the executiveauthorityof the Governmentof Kenya, and... (b) to ensure compliancewith any provision made by orunder an Act of Parliamentapplyingto that Region .... '1915. Ghai and McAuslan, Public Law, p. 190. The fact that KADU was then leadinga minority government did not in my view substantially affect its structure.16. On minority fears see Y. G. Ghai, 'Independence and Safeguards in Kenya', E. Af.Law Journal 3 (1967), pp. 79ff.; Report of the Northern Frontier District Commission,Cmnd. 1900 (HMSO, 1962); Report of the Commissionon the Kenya Coastal Strip, Cmnd.1585 (HMSO, 1962).17. Report of the Regional Boundaries Commission,Cmnd. 1899 (HMSO, 1963), publishedduring the first week of January, 1963. This did not prevent the sparking off of tribal-ism in Western Kenya by the readjustment of boundaries.18. Ref. ss.67-9 of 1963 constitution.19. Ref. s.106 especially sub-section 2 thereof.


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CONSTITUTIONALCHANGEIN KENYASINCEINDEPENDENCE 15The generalphilosophyneverthelesswas that the greaterthe detail, the tighterthe controlover the centre.20The exercise of powersand functionswas classifiedroughlyin the followingways:21(i) asto thosematterswhichwere within the exclusivelegislativeandexecutivecompetenceof the regions. This included such mattersas agriculture,

primary,intermediateand secondaryeducation(except certain 'national'institutions); housing, medical (except for certain hospitals) and localgovernment.(ii) as to those matterswhich were within the concurrentlegislativecompetenceof parliamentandregionalassemblies. This includedpowerover variousaspects of the list in (i) above, e.g. certain agriculturalmatters,public

examinationsatprimaryandsecondarylevel schools.(iii) as to those matters which were within the legislative competence ofparliament (including those areas to which sometimes the executiveauthorityof the regions might extend). All residualpowerswere also leftwith the centre.As political supervisor over the regional institutions an Upper House (orSenate) was providedfor and in it were vested significantpowers over govern-mental conductincludingcrucialdelayingpowersover legislation.22 Senatorialrepresentationwas distributedover40 districtsand the Nairobiarea; and,giventhe ethnic delineationof regionalboundaries,and also the fact that each senat-orial district consisted predominantlyor wholly of a single group, that housebecame a very close approximationto a forum for tribal representationas suchin Kenya's politicaland governmentalsystem.23As a scheme of powerlimitationvis-a-vis the centre,the regionalsystem wasthereforeexternaland structural. The Bill of Rights, on the other hand, pro-vided for limitations on governmentalpower which were internal and norma-tive.24 Moreover, the general scheme of limitation, which makes clear a dis-tinction between proprietaryand personal guarantees,reflects interests whichKADU and its allies sought to sanctifywithin the regionalstructure:interestsbasically economic on the one hand, and related to political victimizationofparticulargroupingson the other. The subsequent history of this part of theconstitution is a strongargumentfor discreditingwrittenguaranteesagainsttheexerciseof statepower. The governmentsof newstatesneedgreaterpowersthan20. Ghai and McAuslan, Public Law, p. 197. See pp. 197ff. for a more detailed des-cription of regionalism.21. Ref. Schedule I Parts I-III. Cf. Schedule II which covered similar ground but wascouched in 'exclusive' terms. See also s.66 of 1963 constitution.22. Generally s.61.23. See J. H. Proctor, 'The Role of the Senate in the Kenya Political System', Parlia-mentary Affairs, 18, 4 (1965), pp. 309-415.24. To take this view is not to devalue the significance in general of Bills of Rights asfundamental principles and normative sources of basic tenets of good government. TheKenya Bill of Rights probably has its origins (via Uganda and Nigeria) in the 1950European Convention of Human Rights and Fundamental Freedoms, extended to Kenyaby Cmd. 9045 of 1953 (and later suspended).


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16 AFRICANAFFAIRSthose of old states in order to put their systems on the path of legitimacy,andthereforeseverelimitations,evenif framedin termsof billsofrights,are an invita-tion to unconstitutionalaction. A more fundamentalobjectionis that to writeguaranteesinto the constitution is to quantify and make finite the aggregateof individualrights and freedoms; hence derogationbecomes mechanical andrespectableif carriedout by way of procedural-and thereforeconstitutional-propriety,unlessthey areput beyondthe paleof legislativepower.These internallimitationswereattachedto the exercise or possibleexercise ofpower over a large number of things and situations. The first was property.Euro-Asian communities (the propertied class before 1963) were afraid thatindependence would be followed by widespreadand arbitrarynationalizationand Africanizationof land ownership and business control. For these com-munities KADU's scheme appearedto provide a respectableumbrellawithinwhich they could argue safeguardsfor their interests.25 The colonial powermachinerywas on their side and consequentlyproprietarysafeguardsbecameperhaps the most elaborateand stringently entrenched of the Bill of Rightsprovisions. Provision was made against all expropriation or compulsoryacquisition of property save under the most rigorous conditions-includingpromptand full paymentof compensation. These guaranteeswerenot subjectto the derogationprovisions containedin s.19 (now s.83) of the constitution,and althoughthis section now covers nearlyall of the personalguaranteesthepropertysectionremainsintact.The next clauses, which related to discrimination,26 complemented theproprietarylimitationsin that they were a systemof personalguaranteeswhichwere an importantancillaryprotectionparticularlyagainstadministrativeactionin such things as the granting or withdrawalof trade licences. They weredefinedhoweversufficientlywidely to cover ethnic fearsinstitutionalizedin thescheme of regionalism and thereby provided a system of non-proprietarypersonal (individual and group) guarantees. It is true that the constitutionexpressly sanctioned discriminationby legislativeaction in certain significantproprietaryand personalcircumstancesboth againstcitizens and non-citizens.Discriminationby administrativeactionwas, however,outlawedin all its formsunless it was 'expressly or by necessary implication authorized.., .by suchprovisionof law as is previouslymentioned'; no distinctionbeing made betweencitizens and non-citizens.27

Express personalguaranteeswere contained in a declarationof liberty and'freedoms';religiousfreedom,freedomof expression,of assemblyandassociation,and of movement. It is suggestedhoweverthat in view of the close correlation25. It is to be noted however that, on land, European interests coincided not with KADUpolicy but with KANU's demand for central control.26. s.26 (now s.82) of the constitution.- The section also defines 'discrimination'.27. See s.26 (1) (4) (now s.82 (1) (4)) to which the operative part of the section does notapply when exercised in areas of personal law specified in s.82 (4) (b-d). Legislativediscrimination against non-citizens is absolutely without restriction and can extend to anymatter whatsoever. See Ghai and McAuslan, Public Law, pp. 421ff.


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CONSTITUTIONALCHANGEIN KENYASINCEINDEPENDENCE 17between political expression and ethnic loyalties on the one hand and thestrongassociationof the entire frameworkwith individuallocalleadershipon theother, there was a strong possibility even in 1963 that these freedoms wouldbecome the casualtiesof political conflict. In this respect it is interestingtonote that whereasin 1963 none of the freedomswere subjectto the derogationprovisions as they then stood, with the extensive widening of the latter pro-visions, all except freedom of conscience are now subjectto derogation. Simi-larlythe guaranteesattachedto personallibertywerepurelynominalsince mostof whatrelate to the meaningfulexercise of personallibertywere in fact subjectto derogationrightfrom 1963.28The supervisory power over these internal and normative limitations wasvestedin the High Court. Any personcould applyto the courtupon allegationthat 'any of the provisions.., .have been, is being or is likely to be contra-vened.' Thus the High Court was made to perform vis-a-vis the centrefunctions similar to those which the Senate performed with respect to theexternaland structurallimitations.29In order to completethe systemof limitations,parliamentitself was 'limited'in a manner that correspondsto the schemes alreadydescribed. An extremelyrigid amendment procedure was established, particularly for 'entrenchedclauses'--those dealingwith citizenship, fundamentalrights, senateprovisions,regionalstructure,the judiciary,andland; to changethese a 75 per cent vote inboth secondandthirdreadingsin the LowerHouse, anda 90 per centvote in theSenate, were needed. Besides this, parliamentarycontrol was tightened oversecuritylegislationand powers. Securitypowers could be exercisedin specialcircumstancesonly, that is when Kenyawas at war or when a stateof emergencyexisted; and very stringent conditions were prescribedfor the declarationandcontinuanceof a state of emergency. As Professor Ghai has pointed out, theseparliamentaryrestrictionswere meant to preventthe giving to the executive ofcertain powers--or alternativelyas a safeguardagainst skilful manipulationofparliamentwhichwouldhavetendedto underminethe regionalandBillof Rightslimitations.30But behind its apparentlyneat arrangementthe constitutionaldocument wasdefective in many respects. Its provisionswere extremelycomplicatedand, asit later turnedout, made it a cumbersomesystemto understandand operate;inconsequenceit was never really implemented. Furthermore,the decentraliza-tion of power reflected in the externallimitations was a potentialdrawbackto28. The 'freedoms' are to be found in ss.2-25 (now ss.78-81). Under the 1963 Con-stitution 'liberty' and 'discrimination' provisions were subject to derogation in any case.The rest of the rights and freedoms sounded more like a denunciation of colonial forms ofoppression than limitations of powers.29. See now s.84, but the effectiveness of this supervision is doubtful.30. Y. P. Ghai, 'The Government and the Kenya Constitution' E. Af. Journal (Decem-ber 1967). Note that while the 'structure of the regions was entrenched, by some fataloversight to the system, their 'powers' were not! Under current provisions no declara-tion of emergency is necessary nor are there any fetters in the exercise of security powers.See p. 27.


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18 AFRICANAFFAIRScentralplanning,financialco-ordinationand the properformulationof policieson for instance such importantissues as health, educationand agriculture. Infact, it did not solve the one prominentproblemit ought to have solved, thepolitical debate that had been going on since 1954. The 1963 document,particularlythe regionalsystem, was thereforeout of date even before it cameinto force. It was bound to be dismantled.Thefirstphaseof change,1963-65: centralization,stabilityandlegitimationIt is with the dismantlingof regionalismthat the first phaseof change-from1963to 1965-is fundamentallyconcerned. As a startingpoint, however,it isnecessaryto explainthe politics of this periodas threeaspectsof a projectionofpre-independenceissues into the public politicaldebateof post-colonialKenya.

The first aspect concerned the establishment of regionalismitself in theconstitutionaldocumentof April 1963-a victorywon before independencebyKADU, aided by Euro-Asianinterests, by the colonialpower machinery,andalso by the fact that Kenyattahad been content to compromisefor the sake ofspeedy power transfer. But KANU did not conceal its hostility towardstheregionalconstitution. In Oginga Odinga'swords, it was 'the latestproductofthe wicked design of imperialists and their stooges'. Kenyatta himself, aspresidentof the party,gave hints of the possibilityof substantialchangesin theregionalstructure;hints which were carriedfurtherby the late Tom Mboya,and by Mwai Kibaki. Kibaki specified amendment procedure and fiscalprovisions as first priority targets; adding that for KANU, the constitutionwhich was publishedon 19 April, 1963was meant to lead Kenyato self-govern-ment and not independence. KANU therefore treated the May elections of1963 as a referendumon regionalism. The elections were in fact precededbya lengthy and detailed statementof what amendmentsKANU would make oncoming to power.The secondaspectconcernedthe intrinsicdemeritsof regionalismfor Kenya,particularlythe strong security implications of its ethnocentric character-especiallyin borderflare-upsandgeneralpoliticalirredenticism. It was duringthe first half of 1963 that Luhya-Kalenjinclashes over the transfer of KitaleDistrict to Rift Valley Region occurred; and serious border clashes flaredupbetweenLuo andLuhyaoverMasenoDivision, resultingin deathsand extensivedamageto property. This was alsothe periodwhenthe Kenya-Somaliquestionripened into an internationalproblem. The seriousness of the situation wasreflectedin Kenyatta'sreplyat the end of Julyto a parliamentarymotion movedto debatea tough line speech he had just madein Kisumu:

'I spokeas I did last Sundaybecausesome people aretalkingaboutsheddingblood, making war, autonomy-it looked to me that while I was labouringhard to bring confidencein this country some people who call themselvesnationalistswere destroyingthat which I was tryingto build.'31

31. E. Af. Standard, 26 July 1963.


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CONSTITUTIONALCHANGEIN KENYASINCEINDEPENDENCE 19Thirdly, the charismaof Mzee Kenyattawas itself a majorfactor in givingKANU greater credit with the public than their regionalist opponents could

hope to have-a factorwhich even KADU leadersacceptedwithout question.What finallyprecipitateda crisis was KADU's refusalto co-operatewith thegovernmenton emergencymeasuresfollowinga Cabinetdeclarationof a stateofemergencyin the Northern Frontier District on 27 December 1963. At firstvote in the Senate the government only received 60-5 per cent affirmationinsteadof 65 per cent requiredto approvethe declaration,KADU's excusebeingthat they were not consulted. This particularstalemate-which was resolvedonly by inter-party negotiations-dramatically highlighted the dangers ofregionalism as a system of power limitation and up-graded the merits ofcentralism.

The governmentsuddenly became attractedto the one-party system both asan answerto weaknessesof executivepower, and as a way of eliminatingtrivial-ities in serious nationalissues.32 When theseissues were put to public debate,KADU lost out. In any case KADU had been noticeablyweakenedby thedissolutionof its partnershipwith the AfricanPeoples' Party(APP)led by PaulNgei-ostensibly on the issue of regionalism. This was followed by whatstartedas a trickle, then became a flood of cross-overswhich made the insti-tutionaldissolutionof KADU on 10 November 1964a simple matterof course.

Throughout the first phase of change regionalism continued to dominatepublic politicaldebate,and whereasKADU for its partwas fightinga rearguardbattle, KANU sought public support for a centralizedsystem of governmenteven if to do so meantthe introductionof a one-partystate. The pre-requisiteof this was the eliminationof the regionalstructure and with it the 'external'powerproscriptions.The constitutionalchanges of this phase in effect amountedto creatingthesituationthat KANU would haveliked to see in 1963. With the dissolutionofKADU the ruling party had no troublein achievingits purpose. By the firstamendment33Kenya was declareda republic with a presidentialgovernmentdevisedin such a wayas 'to embodythe fact of nationalleadershipas seen in theeyes of the people, the concept of collective ministerialresponsibilityand...supremacyof parliament.'34 This enactment,which markedthe erasureof thelast marksof politicaldependency,was furtherusedto de-regionalizealargepartof the system through the deletion, by carefullydrafted clauses, of key pro-visions of the 1963 document. Nearly all the non-entrenchedregional pro-visions,andin particularSchedule2 whichdealtlargelywith areasof concurrent32. See Kenyatta's lengthy statement on arrival from England, E. Af. Standard, 24February 1964, and Mboya's speech in Australia, E. Af. Standard, 21 August 1964. AlsoE. Af. Standard, 15 and 18 August.33. Act No. 28 of 1964, see Schedule 1, which deleted Chs. VII and IX, Schedule 2,s.121; and also made extensive amendments to Schedule 1 and Ch. XIII of the 1963Constitution.34. These words were used by Kenyatta when introducing the amendment, KenyaDebates, Vol. II, Part II Col. 1208, 14 August 1964. For changes relating to the presi-dency, see the discussion on succession reform, pp. 29-32 .


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20 AFRICANAFFAIRScentraland regional powersover some agriculturaland veterinarymatters,andaspects of educationalstandards,were deleted. The entire financialarrange-ments between the regions and the centre, especiallythose concerningregionaltaxationpowers,were revised. Provisions for the control and operationof thepolice force, and in particularthose relating to the maintenanceof regionalcontingency forces, were deleted; and finally the regional powers over theestablishmentandsupervisionof local authoritiesweretransferredto parliament.The second amendment35re-designatedthe regional 'Presidents' as simply'Chairmen'. It also effected further changes; transferring to parliamentpowers to alter regional boundariesformerly vested in Regional Assemblies,and exercizableby them in consultation with one another; permittingthe de-legation of executive authority of the regions-previously vested in theirFinance and EstablishmentsCommittees-to persons other than those servingin the establishmentsof the regions;and repealingthe remainingprovisionsforindependent regionalrevenue, thus makingthe regions entirely dependentongrantsfrom the centre.If this amendment confirmed the contempt with which KANU treatedregionalism,it also reflectedMboya's concept of what role the regions shouldplay in their constitutionalrelationshipwith the centre. In a key speechto theNyanza Regional Assemblyin March 1964he said:

'I see the positionof regionalassembliesas one whichincludes the translationof government policy and promotion of government programmesat theregionallevel, as well as giving of guidanceandassistanceto CountyCouncilsin their efforts to serve the day-to-dayneeds of our people at home. Theregionalauthoritiesare notgovernmentsin themselves.'36The third amendment37was perhapsthe most significantof the trio. Notonly did it completethe processof de-regionalizationanddemotionbutitwent tothe extent of amendingthe procedurefor constitutionalamendmentitself so asto lower the requiredmajority,from 90 per cent in the Senate and 75 per cent inparliament,to 65 per cent in both houses for all purposes. This was achievedwith considerable subtlety. Amendment procedure itself was one of the

speciallyentrenchedclausesin the constitution;by repealingin toto the scheduledealingwith speciallyentrenchedclauses,the majorityrequiredfor all purposesbecamesubjectto the 75 per cent rule. This was then reducedto 65 per cent ina miscellaneousamendment. By this meansthe governmentavoided the more35. Act No. 38 of 1964 which by Schedule 1 wholly deleted Parts 2 and 3 of Ch. VIII,enacted new provisions to Ch. XIV, and amended s.105 of the 1963 constitution.36. E. Af. Standard, 20 March 1964, where the full text is published. The emphasis ismine.37. Act No. 14 of 1965, which by Schedule 1 not only deletes in toto Schedule 4 of theconstitution but also amends s.71 thereof by reducing the procedural requirements andalso to reflect the first mentioned deletion. With the deletion of Schedule 1 of theConstitution, legislative and executive competence now rested completely with thecentre.


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CONSTITUTIONALCHANGEIN KENYASINCE INDEPENDENCE 21direct but politicallytroublesomerouteof havingto bring a specificamendmentaffectingamendmentprocedure."3

By other provisionsof the amendmentthe name 'Regions' was alteredto thecolonial term 'Provinces', and 'Regional Assemblies' became 'ProvincialCouncils'. The whole of the partdealingwith exclusivelegislativecompetenceof the regions was deleted-concurrent competencebeing vested in parliamentin all such areas; those provisionsrelating to the exclusive executive authorityof the regionswere deletedoutright. The generaleffect of these three amend-mentswasto reducethe regionalsystem,fromearlyin 1965,to somethingpurelynominal."9Essentiallythe politics of this period-reflected in the first threeamendments-were a continuation of the independence struggle.40 Only after the thirdamendment had been enacted can it be said that Kenya became 'politically

independent' in the mannerthat the formerparty's (and in a wider but loosercontext,the radical)elite wantedit to be. From December 1965,when 'powertransfer' politics effectively ended, we can begin to examine critically thedevelopmentalaspects of post-colonial political thinking among Kenya poli-ticians. This point also marks the end of a theme which while it lasted hadeclipsed other political issues, both nationaland personality-oriented. At thesame time a power re-arrangementhad taken place within the constitutionalframework;in particular,the processof de-regionalizationhad re-investedmuchlegislative power in parliament,so that it was clearthat any subsequent powerstruggleswould centrethere. The removalof the seriousadministrativehandi-caps imposed by the independenceconstitution correspondinglystrengthenedthe executive,particularlyits provincialadministrativewing. In many respectsthis was a reversionto the pre-1963situation,basedon a frameworkessentiallycolonial and authoritarian. The second phase of changeis inextricablylinkedto these bases.The secondphase of change,1966-69: political survival,publicparticipationandsuccessionto thepresidencyIf duringthe firstphase of change, from 1963 to 1965, an attemptwas beingmade to stabilize the governmentalsystem throughthe centralizationof powerandpolitics, it was a graveerror,in Kenya'sconditions,to assumethat legitima-38. It might be added in mitigation that the amendment was severely criticized byparliament; one of the objections being that it would give the government too muchpower-although initially the government got the requisite majority under the 1963system!39. See Ghai and McAuslan, Public Law, p. 213. Generically certain aspects of theseventh amendment (discussed below), together with the ninth amendment, belong to thefirst phase. The former abolished the Senate; by the latter it was consequently possibleto perform the last rites of the phase by legislating the regional system-senators and all-out of the constitution.40. Indeed President Kenyatta's New Year's Day speech in January 1966 was more inthe tone of an 'independence' speech than an appraisal of past developments. E. Af.Standard, 1 January 1966. Cf. E. Af. Standard, 13 December 1963 and also Odinga'scomment on the latter in Not Yet Uhuru, p. 253.


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22 AFRICANAFFAIRStion of the constitutionalform would automaticallyfollow. For one thing, theinstitutionaldissolution of KADU did not signify the centralizationof politics,but rathera shift in the fieldof operationof' Kadu-ism'. For another,regional-ism was simplythe problemsingledout by the governmentandpresentedto thenationfor debateandsolution. The solution of this particularproblemrevealedKANU as a partywithouta coherentethic to conveyto the public. The debateabout the meaning and practice of African socialism which had been brieflypopularizedin 1963continuedto emphasizethe ideologicalcleavageswithin theparty andgovernmenthierarchy. Whenthis debate had eruptedin 1964it wassummedup, dismissed and passedover with the publicationof SessionalPaperNo. 10-a document which was neither a politicalphilosophynor a plan but asimpleanswerto public clamourfor an ideologyof government.41 Nor did theparty commandsufficientforce to hold its frameworktogether. In fact it wasclearthat for some time a rapiddeclinein the effectivenessof the centralorgansof the party had been taking place. To this the fluidity resulting from themerger with KADU contributed a further factor, as did the emerging presi-dential charisma-a phenomenon functionally external to the party and notdependenton it for inertia.It was not only the party, but the whole political discipline of the state, asembodied also in parliament and government, that suffered. Members ofparliamentsuddenlylost real interestin the Assemblyexcepton occasionswhentheir personal interests were affected. They were moreoveroften quite pre-pared to disobey the party whip, as was shown in the Pinto elections whenindependent candidatestriumphed over party nominees.42 The MPs (all ofwhom were now KANU) beganto expressdiscontent and disillusionmentwiththe partyandtherebyreinforcedthe attitudes of the partybrancheswhich werealreadyrestless and demandinga reorganization. The public likewise showedtheir discontent, for instance by electing independent candidatesover partynomineesin the Senateelections of 1965. The possibleformationof oppositionpartieswas freely discussed.43 In the governmentthe lack of party ethic and41. See initially Kenyatta's speech accompanying the KANU manifesto of 1963, E. Af.Standard 19 April 1963 (and note editorial on that occasion). Specific aspects of theAfrican socialism debate in 1964 revolved around land, nationalization, foreign policy, andeducation. In a foreword to Sessional Paper No. 10 President Kenyatta states: 'Therehas been much debate on the subject and the Government's aim is to show very clearly ourpolicies and also explain our programme. This should bring to an end all the conflicting,theoretical and academic argumentsthat have beengoing on' (emphasis mine).42. The assassination of Pinto in February 1965 had created two vacancies, one asSpecially Elected Member in the National Assembly, another as a member of the CentralLegislative Assembly. In both cases KANU's candidate was defeated in spite of a three-line whip. For another view of these elections see Odinga Not Yet Uhuru, p. 292. Seealso parliament's initial refusal to pass the Income Tax Bill in January 1966.43. For these debates see E. Af. Standard, 22 June 1965, 8 July, 1965, and Daily Nation,4 January, 22, 25 February, 2 March, 1966.Dr Gertzel's comment on the Senate elections of 1965 does not answer the question ofpolitical discipline qua party i.e. the fact that a 'KANU' independent could win over theofficial candidate is itself a comment on the Party's organizational weakness rather than itspopularity (see Politics of Independent Kenya, op. cit., p. 59).


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CONSTITUTIONALCHANGEIN KENYASINCE INDEPENDENCE 23properideologicalreference led to open clashesbetween senior ministers bothinside and outside parliament.44These problems,unveiled by the ending of the politics of regionalism,werereally-except possiblyin theirideologicaldimension-political problemswithinKANU itself. The solution required,therefore, was a political ratherthan aconstitutionalone. But in fact the attempt was made to deal with them byconstitutionalmechanisms,andthis may perhapsbe regardedas the transitionalpoint when the effort-albeit unsuccessful-to shape the constitutiontowardsstabilityand legitimacygaveplace to a drivetowardsa regimebasedon survivaland a correspondingconcern with problems of succession to the presidency.The use of constitutionalmechanismsalsoperhapsexplainswhy no attemptwasmade to tackledirectlythe governmentalimplicationsof indiscipline.Parliamentaryindisciplinewaspresentedby the governmentasa constitutionalissue: that the electoratemust be protectedfrompoliticalcareeristswhoseinter-est in parliamentwassimplythe securingof allowancesandotherfringebenefits.Such was, ostensibly, the significance of the fourth amendment, passed in1966."5 In the event, the result of the amendment was something quitedifferent.The amendmentprovidedthat a member who without having obtainedthepermissionof the speakerfailed to attendeight consecutivesittings of a sessionof the NationalAssembly,or wassentencedto a periodof imprisonmentexceed-ing six months,would lose his seatin parliament. But its real intentionappearsto have been not so much to protectthe electorateas to strengthenthe personalcontrolof the Presidentover the system. Evadingthe first limb of the amend-ment if one had to was a matter of sheerarithmetic;andit was furtherprovidedthat

'the Presidentmayin any case, if he thinksfit, direct that a membershall notvacate his seatby reasonof his failure to attendthe Assemblyas aforesaid.'Certainlythere is little evidence that MPs showed a greaterreadinessto attendparliamentthereafter.

Concurrentlywith effortsto remedyparliamentaryindisciplineattemptswerebeing made to solve the widerproblemof partyindisciplinegenerally. In thisconnection the conference held at Limuru in March 1966 to discuss the re-organizationof the partywas a majormilestone. To appreciateits significancea brief mention is needed of Oginga Odinga and the 'communist witchcraft'which had been linked with his name ever since he had enteredpolitics in theearly 1950s, and which turned out to be the successorto regionalismin publicpolitical rhetoric.4644. Instances of such clashes are reported in the E. Af. Standard, 11 and 16 February1966 (over Rhodesia); 17 February 1966 (over 'confidence motion'); and 31 May, 2 June1965 (Odinga/Mboya polemics).45. Act No. 16 of 1966. Amending what is now s.39 (1) (b-c). See also s.35 (1) (b).46. For note 46, see next page.


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24 AFRICANAFFAIRSAs Minister for Home Affairs (to December 1965) Odinga had been re-peatedlyaccusedin the foreignpressof tryingto build up a communistforceforthe overthrowof the President. Althoughhe becameVice-Presidentin Decem-ber 1964, his functions were steadilywhittled awayuntil by February1966 hisoffice was in chargeonly of 'affairsof the NationalAssembly,Africanizationandtraining,and public holidays'. In public and in parliamentthere were allega-tions of communistplots andintendedcoupstacitlyassociatedwith Odinga.47It wasagainstthis backgroundthat Tom Mboya as SecretaryGeneralsuddenlyannouncedreorganizationplans to be ratifiedby a conventionat Limuru. Theannouncementwas precededby an equallysudden motion of confidencein thegovernmentin parliament,moved by Mboya without the knowledgeof Odingawho was then in chargeof governmentbusiness. During the debate, the twoministers clashedviolently and the latter walkedout of the Assembly.48 Thedebate,as Dr Gertzel has put it,'provedto be a dress rehearsalfor a full-scaleKANU conferenceat which theconservativesestablishedtheir ascendancyin the partyhierarchyas well ....[In] the processKenyattahimself tacitly entered the arena on the side of theconservativesby his decision to hold the convention.'49

Whatcould and should have been properpartyreorganizationbecamemerelyaway of getting rid of Odingaand his supporters. The main featureof the newparty constitution was the abolitionof the post of Vice-President(then held byOdinga) and the creation of seven provincial vice-presidencies. The mostsignificantaspect of this change, however, was that it recognizedthe defactoregionalnature of the party'sinternal structureand thereforeex hypothesicouldnot have solved it. At the sametime by failingto accommodateOdingaandtheradicalwing of the party,the changes triggeredoff a situationwhich led to thefirst real test of constitutionaldurability in Kenya and to the emergence ofpolitical survivalthroughthe constitution as a primarymotivation.Onthe dayfollowingthe LimuruConferencea groupof KANU MPs met andannouncedthat they would form a new party. A month laterOdingaresigned,takingwith him 28 MPs and a largesection of the trade unionmovement. Therift merely made explicit a situation which had existed in KANU since its46. The description 'communist witchcraft' was in fact used by Mboya in a speech inKisii, E. Af. Standard, 19 February 1966. For an interesting account of this as a coloniallegacy see Gertzel, Politics, pp. 64ff. Much of the debate on Communism was officiallylabelled as 'rumour' but there is no doubt that the politics of this period equated com-munism with subversion, hence the expulsion of Russians and Chinese and the banning ofcommunist literature.47. See e.g. E. Af. Standard, 11 July, 28 August 1964 (Odinga press statements), 1 April1965 (Uganda arms issue); 29 January, 2 and 13 February 1966 (Soviet and Chineserelations etc.). Also June 1965 Budget debate.48. The 'confidence' debate is reported in E. Af. Standard, 17 February 1966. Thegovernment later denied that there was any such office as 'Leader of GovernmentBusiness'!49. See Gertzel, Politics, p. 71; also the second part of William Attwood, The Reds andthe Blacks (New York, 1967).


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CONSTITUTIONALCHANGEIN KENYASINCEINDEPENDENCE 25inception; for the first time ideologicaldifferences were seeking expressionininstitutional terms. The resignationsthus also representeda frontalchallengeto, if not partialfailureof, presidentialcharismaas a substituteethic for partyideology. The executive itself was threatened with disintegration. It isilluminatingthat KANU's campaigntheme duringthe 'Little GeneralElection'which followedwasthatby his resignationOdingahadchallengedthe wisdomofMzee Kenyatta. The idea of 'survival' as used here is therefore an analysisofhow the executive as a 'politicalinstitution'survivedin circumstanceswherethepartyand parliamentwere ill-adaptedto assistit.50With the possibilityof further defections from the party,the choicethen waswhether to strengthenthe executive throughthe public by orderingnew elec-tions, or through parliamentby strengtheningthe 'parliamentary'party. Thatthe executive chose the lattercoursewas a desperateattemptat survivaland thatthe solution was found within a constitutionalratherthan a politicalframeworkwas a remarkabletactic of crisis postponement. The formula used was the'turn-coat rule', a device borrowedfrom the constitutionalsystem of Malawiwhere it was first used in 1964 when the executive was faced with substantiallythe samesituation as it now was in Kenya.51 Its substance as containedin thefifth as readtogetherwith the eighth amendments52was that an MP who

'having stood at his election... with the support of or as a supporterof apoliticalparty.. . either (i) resignsfrom that partyat a time when that partyis aparliamentaryparty or (ii) havingafter the dissolutionof that partybeen amemberof anotherparliamentarypartyresignsfrom that otherpartyat a timewhen that other party is a parliamentaryparty shall vacate his seat at theexpirationof the sessionthen in being or if parliamentis not in session at theexpirationof the session next following... unless ... that partyof which hewas last a member has ceasedto exist as aparliamentaryparty.'

The immediate effect was instantaneous. Thirteen of the 29 MPs who hadresigned rejoinedKANU and were welcomedbackby the President,althoughasit laterturned out this did not savethem fromthe operationof the rule!The official justification for this rule was to ' . . . stop these political acrobatsfrom fooling about with the public.' And yet in 1964 when KADU membershad crossed over Mboya had congratulatedthem for their braveryand con-viction and had explainedto the public that MPs were representativesand notdelegates. Even if the rule did protectthe sovereigntyof the electorate,it wasdifficult in those circumstancesto determinewho remainedtrue to the original50. It is true that subsequent decisions were made in the name of KANU but in fact asexplained below, the personnel of the party executive coincided also absolutely with the' inner' cabinet.51. Constitution of Malawi (Amendment) Act No. 1 of 1964, which was used to deprivecertain former ministers of their seats when they resigned from Malawi Congress Partysoon after independence. Dr Banda subsequently made Malawi a one-party State.52. Acts No. 17 of 1966 and No. 4 of 1967 now contained in s.40 of the Constitution.The fifth amendment was published, tabled, debated, passed through all its stages, andgiven presidential assent in less than 48 hours.


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26 AFRICANAFFAIRSmandateand who betrayedit. Odinga'scase was that it was the post-LimuruKANU leadershipand not his followers who had brokenthat party'selectoralpledges, and consequentlyit was they who were the realdeviationists. And infact the fundamentalchanges which took place between 1966-9 and whichresultedinteralia in the drastic concentrationof securitypowersin the handsofthe executive, the postponementof elections for two years, the assignmentofconstituencies to people who were never elected in those areas,were indeed aviolation of electoralsovereigntyin as much as they were never referredto theelectorate. It is also significantthat the amendmentgave no indication as towhat a 'parliamentaryparty' meant-this being left to the Speaker'sdiscretion,which might itself be broadly directed by standingorders. In any case whyshould a violation of a pledge to the electoratecease to be such when the partyceases to be a parliamentarypartyor is dissolvedduringthe samesession?53These are questionswhich the turn-coatrule, as enactedin Kenya, Malawi,Ghana and subsequentlyin Zambia,54has not adequatelyanswered. In Kenyaany doubt as to the 'survival' function of the rule was removedby the eighthamendmentwhich declaredthat

'the refcrences... to a memberwho in certain circumstancesresignsfrom aparty at a time when that party is a parliamentaryparty include and havealways included referencesto a memberwho before the commencementof[the fifth amendment]resignedin those circumstances...'Three days after the passing of the fifth amendmentthe Presidentproroguedparliamentand the dissidents lost their seats. The 'Little General Election'showed just how effective strengtheningthe party in parliamentrather thanoutside it was. KANU won more seats than KPU, althoughthe latterpolledmore votes; an electoralminority had neverthelessproduced a parliamentary

majority.55 The fifth and eighth amendments were thus designed, like thefourth, to strengthenthe party-in this case, the partyin parliament.The timing, substanceand operationof the sixth amendment56follow harduponthose of the fifth. Its timing wassignificant. At the timethe amendment53. Some of these questions are raised by Ghai and McAuslan, Public Law, pp. 320ff.The art of limiting the Speaker's discretion by amending Standing Orders was in fact usedto deprive the KPU of status as an official opposition party after the Speaker had recog-nized it as such.54. For Ghana, see National Assembly Act No. 300 of 1965 s.2(2), the provisions ofwhich were indeed much more extensive. Although at this time Ghana was a one partyState, technically parliamentary representation was not dependent on party membership.For Zambia, see Constitution of Zambia (Amendment) (No. 2) Ordinance No. 47/1966.55. On the 'Little General Election' see Gertzel (with J. J. Okumu), Politics, pp. 73ff.;Bennett, 'Kenya's Little General Elections', World Today (1966), p. 336. Broadlyspeaking, KPU polled 73,000 to KANU's 36,000 votes in the Lower House, but won only7 to KANU's 12 seats, polled 79,000 to KANU's 62,000 in the Upper House but won only2 to KANU's 8 seats!56. Act No. 18 of 1966. The Bill passed through all its stages in the Senate in just under4 hours. The preoccupation with political security can be amply illustrated from thedaily press during 1966. See especially E. Af. Standard, 15-26 March; 17-23 April;23 June; 4, 22, 29 July; 5 August, Daily Nation, 25, 26 May, 2 June.


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CONSTITUTIONALCHANGEIN KENYASINCE INDEPENDENCE 27was introduced, debated, and brought into operation,the dissidents were nolongerin the Assembly, havinglost their seatsthroughthe operationof the fifthamendment. Moreoverit was deliberatelysubordinated,so far as the publicwas concerned,to the differentand moresensationaltheme that the countrywason the brink of subversion and Communist intrigue; in the various publicstatementsthe KANU parliamentariansexplicitly indicated that the intentionwas to use the powerstherein to control the currentpoliticalsituation.The amendment had the effect of enormouslyenlarging the government'semergency powers. In the first place, it completelywiped out existing legis-lation relatingto parliamentarycontrol over emergencylegislationand the lawrelatingto public order. Existing constitutionalprovisionswere repealedandreplacedby one which gave the President a blankcheque 'at any timeby orderin the KenyaGazette[to]bringinto operationgenerallyor in any partof Kenya,Part III of the Preservationof Public SecurityAct or any provisionsof that partof that Act.' The possible duration of such emergency powers was extendedfrom seven to 28 days (in some circumstanceslonger), and they could beapprovedby a simple majority;whereas to repealthem, unless by the personaldecision of the President,a majorityof all electedmembersof the Assemblywasrequired. Similarly, detention orders made under those powers, whichpreviouslyhad to be renewedeveryeighth month, couldnow unless revokedbyPresidentor parliamentremainin forceindefinitely.57At the same time the Preservationof Public SecurityAct (1960) was drastic-ally amendedto define the full scope and operationof the new constitutionalpowers. That Act now distinguished between public security measures and'special' public security measures;the former, available under Part II of theAct, could be broughtinto operationby a declarationof the Presidentwhich didnot require approvalof the NationalAssembly;the latter,under PartIII by anorder under the new constitutionalpowers. But in fact in either case thePresidentcould invokeall or some of the powersprovidedfor in the Act and forthe whole or part of the country. He could do this when in his opinion suchpowers were necessary'for the preservationof public security'-a term whichcould be very widely interpreted. They included power to make subsidiarylegislationon the detention,compulsorymovementor restrictionof persons,theacquisitionof property,and conscriptionfor labouror into the armedforces.58The rapiditywith which the new powerswerebroughtinto operationandthepolitical circumstancessurroundingthe first detentions hardly bear out theofficial explanationsthat public security was threatened. Just over a monthafter the presidentialassent s.85 of the constitutionwasinvoked;the regulations57. What was the old s.29 was wholly repealed (now s.85). By the schedule to Act 45/1968 sub-sections 4 and 7 of the original s.29 as amended by the sixth amendment weredeleted. By a miscellaneous clause in the tenth amendment detention orders nowremained in force indefinitely. See Ghai and McAuslan, Public Law, pp. 430-56.58. See Cap. 57 (Laws of Kenya). It is a little misleading to describe this as an 'amend-ment' since the original provisions were entirely superseded. s.2 of Part I and s.4 ofPart III respectively are the definitive and operative provisions.


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28 AFRICANAFFAIRSprovidingfordetentionandrestrictionbeingsimultaneouslypromulgated. Thenext month, nearlyall the tradeunion leaders who had joinedthe KPU-all ofwhom held prominent positions in that party-were detained.59 By thismethod, and by other forms of 'political censorship', the KPU was virtuallycrippledin the attemptto reachthe public. It was clearthat,with the choice ofparliamentas the crucial 'survival area', the KPU was being stopped from itsendeavourto survive at large.60The sixth amendment also marks the final stages of the dismantlingof thepower limitationsimposed by the 1963 Constitution. In this case the internalnormativelimitations (except those relating to propertyand freedom of con-science) became subject to derogationin a mannerthat left individual libertyentirelydependenton the subjectiveassessmentof the relevantminister. Thefunctionof the High Court-like that of the Senate-was reducedmerelyto thatof ensuringcompliancewith proceduralrequirementsof the Constitution.61The processof reshapingthe constitutiontowardsthe politicalsurvivalof theruling party was completed by the seventh amendment,62which was passedostensiblyfor the abolitionof the Senate-an institutionwhich had long ceasedto fulfil useful constitutional functions. It is rather on the consequentialprovisionsfollowingthe abolition that attentionmust be focussed. These werefar-reaching. Not only were all the former membersof the Senate absorbedinto an enlarged Assembly to represent constituencies to which they wereconstitutionallyassigned,but the life of parliament(whichwas due to expireinJune 1968),was extended for afurthertwo yearsuntil June 1970, 'unless soonerdissolved [by the President].' At the same time 'specially elected' membersbecamenominated members-the power to nominatebeing exercizableby thePresident,and the number fixed at twelve instead of one in every ten MPs aspreviously.The reasonsgiven for these provisions were unconvincing. Mboya arguedthat it would be unfair to those senators due to retire in 1969 if the life of theenlargedAssemblywas not extended; that extension was necessaryto coincidewith the new revised Plan period (1966-70); and that elections were in any casetiresome and expensive. The East AfricanStandardadded that59. The first detentions, gazetted in LN Nos. 2983-8, 3094-5 and 4101 of 1966, included2 Administrative Secretaries, 3 Executive Members (including National Treasurer andNairobi Branch Secretary), the Youth Wing Leader and Organizer of the KPU, and theParty President's private secretary and bodyguard.60. During the Little General Election there were only six KPU reported rallies in thethree weeks campaign period to KANU's 22. For further control methods see PublicOrder (Amendment) Act No. 12/1968 which prohibits the use of flags or emblems signify-ing association with political parties or leaders; the notorious Local Government Electionsof 1968 when all 1,800 KPU candidates were disqualified--ostensibly for filling electionforms wrongly but reputedly on orders from the President.61. As the court held in a case brought by one of the detainees, 'the truth of thosegrounds [i.e. alleging threat to security] and the question of necessity or otherwise of ....continued detention are matters... ultimately for the Minister rather than for thisCourt...' P. P. Ooko v. Republic of Kenya, Civil Case No. 1159/1965 (unreported).62. Act No. 40 of 1966. See E. Af. Standard, 25 May 1966.


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CONSTITUTIONALCHANGEIN KENYASINCE INDEPENDENCE 29'a generalelection would unleasha vociferouspoliticalcampaignwith conse-quent interruptionof economicendeavourand all the disturbancescausedbyheated electioneering. After all that time and expense, the KANU govern-ment would be re-elected.'63

All these reasonsignoredthe principleon whichpublic justificationof the fourthandfifthamendmentshadrested,thatthe sovereigntyandrightsof the electoratemust be safeguarded. It is interestingto note that a functionalre-arrangementresultingin furtheraccretionof powerfromparliamentto the Presidenthad onceagain been achieved.64 With the seventh and eighth amendments,a distincterais completed,the full significanceof which will now be reviewed.It is clear that the process of political survival did not in Kenya take asextremeauthoritarianforms as manyAfrican countrieshave witnessed. Indeedthe executive was scrupulousin its conformityto technicallegality throughoutthis period. But more significantly,the end of regionalism,and the politicaland constitutionalchanges subsequent to it, led to a situation where Kenyapolitics were almost completely 'parliamentarized';a deliberateattempt hadbeen made to centralizeall the majoractivities of the state in such a mannerasto producean abnormalconcentrationof political activityon the floor of parlia-ment. All matters,from domestic party squabblesand personalityfriction topolicy formulationand elections, becamepart and parcelof and were resolvedas parliamentarybusiness.65 Correspondingly,since all public activities of thestate were concentratedin parliament,there was reducedpublic participationinthe processesof governmentthroughloss of interest in politicalactivityand theabsence of a strong and freely functioning opposition party; but what is evenmore important,the parliamentarizationof politics led to increased executivecontroloverparliamentitself. 'It is significant,'ProfessorGhainotes,' that whilelegislativecompetencehasincreased,its controlovertheexecutivehasdecreased.'66In Kenya, where the politics of charisma have been the dominantfeature,parliamentarizationin fact led to presidentialism. The power link in theequation: the leader=-theparty=the government,was the parliamentaryparty,over which President Kenyattahad strong personalinfluence. The net resultwas the negationof the concept of governmentby discussion. Moreover,it isstronglyarguedthat when the succession to the presidencycameup for debatein 1968, neither the public nor parliamentas such were any longer capableoffindingan acceptablesuccessorto the presentincumbent.The successionto thepresidencySuccession and leadershipis perhaps the most critical political problem inindependentAfricatoday,for boundup with it is the problemof the legitimation63. E. Af. Standard, 20 November 1966.64. See Ghai and McAuslan's study of the Kenya executive, Public Law, Ch. VI pp. 220ff.65. Note especially debates on the Limuru Conference, notably as reported in E. Af.Standard, 4-10 March 1966.66. 'The Government and the Kenya Constitution', loc. cit., p. 12.


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30 AFRICANAFFAIRSof socio-politicalsystemsasopposedmerelyto stylesof individualgovernments.67This has been demonstratedagainand againin militarytake-overs,which havenot only deposedgovernmentsbut also revealedthe frailtyof the base structureof political power in these areas. The lack of political recruitmentthroughchannels in which the public freely and effectively participateis the essentialmissing link. In Kenya the disappearanceof this link was the logical by-productof KANU's survivalcomplex, especiallyafterthe KPU had duringthe'Little General Election' demonstratedthat a large section of the public weredisenchantedwith the former party. More especially, parliamentarizationofpolitics, resultingas it did in the direct convergenceof political activityon thePresident,emasculatedany form of political recruitment:hence by 1968 therewas no obvious successor to President Kenyatta. The political reasoningbehind treatingthe succession issue as a constitutionalone was that to institu-tionalize the personalityof the Presidentwas moredesirableand feasible than toinvert the politicalprocessin such a manner as to elevate KANU above him.Two preliminaryattemptsto achievethis institutionalizationfounderedin theteeth of parliamentaryopposition,when even CabinetMinistersraised voices ofprotest. By the firstattemptit wasprovided (asin the USA) thatwheneverthePresident vacates office or dies before the expirationof his term, the Vice-President would automaticallysucceed to full presidential powers for theremainderof the unexpiredterm. The second modified the firstby providingfor automaticsuccessionto full presidentialpowers for a period of six monthsonly, after which presidentialelections must take place. During such subse-quent elections only persons above the age of 40 (insteadof 35 as previously)were to be eligible. Objectionsin both casesrangedfrom the lack of referenceto the publicinvolvedin elevatingapersonto the presidencyeven forsix months,and fearsthat such a personmight use security powersto perpetuatehimself inoffice, to complaintsthat raisingthe age limit was a deliberateattemptto keepsome potentialcandidatefromthe presidency.61The third attempt, which became the tenth amendment,69in part simplyrepeatedthe main featuresof the old systemintroducedby the first amendmentin 1964(althoughnot appliedin the case of the firstPresident);but it alsomadefundamentaladditionsin other directions. The earliersystemhadprovidedfortwo methodsof presidentialelection:(a) During a generalelection any citizen, being a registeredvoter, 35 yearsofage and a parliamentarycandidate, could offer himself as a presidentialcandidate provided that his nomination was supported by at least 1,00067. For discussions on the problem of succession see J. P. W. B. McAuslan: 'Successionand Elections in East Africa', E. Af. Law Review (1969) and R. B. Seidman, 'Constitutionsin Independent Anglophonic Sub-Sahara Africa: form and legitimacy', Wisconsin LawReview (1969), p. 83.68. See Assembly Debates Vol. XV Cols. 90ff. on Constitution of Kenya (AmendmentNo. 2) Bills published on 29 March and 10 May 1968.69. Act No. 45 of 1968 superseding Act No. 28/1964 (see above). For the ninthamendment, see note 39 above.


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CONSTITUTIONALCHANGEIN KENYASINCEINDEPENDENCE 31persons registeredas voters in elections to the National Assembly. Everyother parliamentarycandidate was required--on pain of having his ownnomination rendered void-to declare his preferencefor one of the presi-dential candidates. The candidate who received preferentialdeclarationfrom a number of members elected to the Assembly (including himself)exceedinghalf of all theconstituenciesinto whichthecountrywas divided,andwho was himself an elected MP, was declaredPresident.

(b) At anyothertime, or if the first methoddid not yield anyresults,or if for anyother reason the presidential office fell vacant before dissolution, thenparliamentitself became an electoralcollege. Any elected member couldoffer himself as a candidateprovided his nomination was supportedby atleast 20 MPs. A person was declaredPresidentif he obtainedan absolutemajorityof all membersqualifiedto vote: in the event of failure two furtherballots could be taken. Beyond that parliamentstood dissolved and freshelections would takeplace.The majordefect in both cases, from the point of view of those in power, wasthat the proceduredid not guaranteeloyaltyto the President. This defect thenew provisionsof the tenth amendmentsoughtto remedy.These specifiedthat during generalelections nominationscould only be madeby political parties taking part in elections. Indeed it was imperative for a

'political party' takingpartin any generalelectionsto put forwarda presidentialcandidate. During electionsonly one ballotpaperwasto be used andthis mustbe so arrangedas to pairthe parliamentarycandidatewith his party'spresidentialcandidate. The candidatewho receivedthe greatestnumber of direct electoralvotes and was himself elected as a constituency member was to be declaredPresident.At any other time during which the Vice-Presidentled a caretakergovern-ment,electionsmusttakeplacewithin 90 daysof the vacancyoccurring. A partymightnominate a candidate from any of the elected members of parliament,

providedthat such nomination was not valid unless supportedby at least 1,000personsregisteredas voters in elections to the NationalAssembly. The candi-date who received a greaternumberof valid votes castin the ensuingpresidentialelection than any other candidatewould be declaredPresident.As in the old system, so with the new one, 'where only one candidatefor thePresidentis nominated(andthat candidateis in or is electedto the Assembly)heshall be declaredto be elected as President.' The effect of this was that therewere no presidentialelections in the 1969elections.The tenth amendmentintroducedinto the successionprocessa new dynamicfactor-political parties'duly registeredunder any law which requiresparties to be registered,andwhich has compliedwith the requirementsof anylaw as to the Constitutionorrules of political parties nominatingcandidates for the National Assembly'.


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32 AFRICANAFFAIRSThese are not to be confused with the 'parliamentaryparty' introducedby thefifth amendment. Ourinteresthere is with the legalandpoliticalaspectsof thisnew factor within the succession process. By the National Assembly andPresidential Elections Act 1969, and the regulations made thereunder,70 thepresidentialcandidatemust be proposedand secondedby a personwho is bothregisteredin some constituencyas a voterin electionsto the NationalAssemblyandis a national officialof the party. Althoughthe parentstatuteprovidesfor'preliminaryelections' in respect of parliamentarycandidates,none is requiredfor presidentialcandidates,presumablybecause such a candidatewill in anycase havegone throughthe preliminariesin his attemptto capturea parliament-ary seat or simplybecause of the unappropriatenessof the systemin election tothe Presidency. In respectof parliamentaryelectionsa supportingdeclarationof compliancewith partyrules is necessaryand this must be made 'not earlierthan one monthbefore the nominationday'.The effect of these provisions is inter alia to give constitutionaleffect toroutine decisions of the partyexecutive not only in respectof the presidencybutalso of parliament. Similarlypartydirectivesright down to the administrativeand proceduralrequirementsof the partysecretarytake constitutionaleffect assoon as they are made. Moreover, whereas the regulationsmerely require asupportingdeclarationfrom a party,in the 1969electionsKANU madeits ownrules afterthe banningof the KPU thatit wouldgive no such supportunlesstheprospectivecandidatehad been a member of the party during the six monthsprecedingthe elections for which the support is sought. In legal terms, thetenth amendment as read together with the 1969 Act and regulations give topoliticalpartiesunlimited rule-makingpower and therebythe ability to deter-mine who mayor may not participatein the leadershipof the country.The political aspects of this legal power cannot be under-estimated. Itmeansin effectthat the final decisionas to who the Presidentwill be, particularlyin cases where only one party qualifiesto participatein elections, will be thepartyExecutive Committee. The implicationsfor parliamentarycandidacyareeven greater,since strongandeffectivedirectionwill in the finalanalysislie withthe executive and consequentlya parliamentarycareerunder this system willdepend on the maintenanceof good relationswith the party executive ratherthan with the partyat largeor with the public. In 1969 when the last of thesemeasureswas passed, of the nine Members of the National Executive Com-mittee of KANU seven were Cabinet Ministers and one was an AssistantMinister.7" At the very least the proposals could be seen as an attempt to70. Act No. 13 of 1969 and LN 221/1969. The form of declaration is set out in Form 10in the schedule to the Regulations.71. The members were (1) Sagini, Nyanza (Minister for Local Government), (2)Khasakhala, Western (Ass't Minister, Education), (3) Khalif, North-Eastern (the onlynon-cabinet member), (4) Moi, Rift (now vice-president and Home Affairs), (5) Nyagah,Eastern (now Agriculture), (6) Ngala, Coast (now Power), Gichuru, Central (now Defence),(7) Kibaki, Nairobi (now Finance) and then there were the President and Mboya theSecretary-General. The Acting Secretary-General, R. Matamo, is an Assistant Minister.In the 1969 elections Sagini and Khasakhala lost their parliamentary seats.


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CONSTITUTIONALCHANGEIN KENYASINCEINDEPENDENCE 33transferthe processes of political recruitment and the inevitable successionstrugglefromthe public andparliamentto the privacyof the Cabinet. If as wesuggest, the Cabinet itself throughoutthis period used the constitutionpre-dominantlyas a survivaltool, the tenth amendmentand facultativelegislationwere merelythe grandfinaleto the secondphase.ConclusionThis articlehas tried to investigatethe extentto whichpoliticalbehaviourhasdictatedconstitutionalchangein Kenya. The emphasison politics ratherthanon the constitution stems from the belief that African countries are goingthrougha transitionalperiod duringwhich the constitutionmust not be lookedto as an impartialarbiterover the politicalactivityof the state. Such a view isruled out by the characterand force of the coloniallegacies; by the natureandcontent of the independenceconstitutionsand their normativeand institutionalassumptions;by the behaviourof the political elites afterindependence,andbythe fluidity of variables operating upon them. Yet this merely states thedynamicsof but not the answer to the problemwhich it poses: what govern-mental system or model would best achieve stability and legitimacy in thesefragileconstructs? To answerthis questionis beyond the scope of this article,nor do we think that a generalmodel for Africa is possible. But it may at leastbe suggestedthat the Kenya experiencebrings out two generalconclusions.The firstof theseis that the receptionof the Westminster-typeconstitutioninformer colonial territorieswas a mistake,for on the one hand they representedinstitutions which had little 'home-grown'characteroutsideEngland,andon theother, they wereinevitablyused as frameworksfor the limitationof powerin anattempt to protect interests which were largely adverse to the new nations.Once the power to initiate changeeitherwithin or outside the constitutionhadpassedto these nationschangewas a merequestionof time. When that changeoccurred--quite apartfrom the rise of militarism in many African states-anobsession with technicallegalityovertookthe politicalprocess. Whereasmanyof the factors prompting change need not have been treated as constitutionalproblems,it maywell be thatby so treatingthem betterpublicandperhapsinter-nationalrelationshavebeen achievedthanif extra-legalpoliticalruthlessnesshadbeen preferred.Secondly,the processesof changein whateverform have paradoxicallycom-mitted these countriesto the notion of constitutionalgovernment-particularlythat of written constitutions. It is interestingthat not only have constitutionsre-appearedin some form or other afterbeing swept awayby military regimes,but countrieslike Upper Voltaarenow beginningto protectthemselvesfromthephenomena of coupsby bringing the military into partnershipwith civilianauthoritieswithin a constitutionalframework.72 At the same time some of the72. See Keesings Contemporary Archives, 1971. The new Upper Volta Constitutionpermits free elections but at least one-third of the members of the cabinet must come fromthe military.


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34 AFRICANAFFAIRSconstitutionaldoctrinesevolvedthroughthis ad hocsystemhave,as in the case ofGhana,73outlivedthe politicalcircumstancesin whichthey originated,and theymay well proveuseful tools in the searchfor stableand acceptableprinciples.In Kenya,the first hurdlein the processof legitimationwould seem to be thecolonial backgroundwhich has not only had a continuous effect upon post-colonialdevelopment,but whose normshave also been re-injectedinto the newgovernmentalsystem; both aspectsbeing the result of the fact that there neverwas an alternativesystemor normativeformin 1963. The failure of KANU tofill this vacuumled after regionalismto a three-foldre-arrangementof power.Full legislativepower was restored to parliament;full administrativeauthoritywas revived in the hands of the executive,while political powerwas re-directedfromKANU to the President,bringingaboutaweakeningof theparty. Attemptsto solve partyindisciplineled only to the institutionalizationof political differ-ences which contributed directly to the emergenceof a survival complex inpolitics. This complexfound constitutionalform,throughthe fourth,fifth andeighth amendments,in presidentialcontrolover MPs by possibleexercise of the'equity' jurisdictiontherebygiven to him, andoverparliamentthroughpersonalinfluenceoverthe parliamentaryparty,respectively. The sixth amendmentledto aspectsof politicalcensorshipby detention and restrictionin non-emergencycircumstances and under reduced parliamentarycontrol, powers which werebackedup by the entiremachineryof the stateincludingthe Penal Code. Theseventh amendment, while clearly indicating a reluctanceto face elections,further deprived parliamentof some of its powers by vesting them in thePresident.The final stagesof this phase show an attemptnot only to devise a constitu-tionalformto solvethe successionproblembut also to do so in a mannerdepriv-ing the public and parliamentof effective choice. The tenth amendmentis onone interpretationa genuine step towards solving the political ineptitude ofparties in Kenya, in as much as it has brought them into the constitutionalprocess. But it assumesforits successfuloperationthe presenceof an organizedand disciplinedpartyand a traditionof governmentby discussionat all levels ofthe politicalstructure. Can such anassumptionbe madefor KANU andKenyain the 1970s?73. The 1969 Busia Constitution has retained the 'turn-coat' rule first used by Nkrumah.

the politics of constitutional change in kenya

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