■ Constitutional history of Kenya

The Republic of Kenya is a country in East Africa bordered by the Indian Ocean. Kenya is located at the equator and shares biorders with Ethiopia in the north, Somalia in the northeast, Tanzania in the south, Uganda and Lake Victoria in the west, and Sudan in the northwest. The capital city is Nairobi, which is the second largest city in Africa, second only to Cairo. Kenya is about 85% of the size of France, and the capital - Nairobi - is the country's largest city. The country's population has grown rapidly in recent decades to nearly 38 million. Kenya has numerous wildlife reserves, containing thousands of animal species.

Political system and history

Like most former British colonies, Kenya, adopted the Westminster system of government at independence. Following its victory in the general elections of 1963 over the Kenya Africa Democratic Union (KADU), the Kenya African National Union (KANU) was invited to form the first autonomous government with Jomo Kenyatta as Prime Minister and the Queen, Elizabeth II of England, as Head of State on June 1 1963. In 1964, a constitutional amendment transformed Kenya into a republic, and a presidential system replaced the parliamentary system of government. This system remained in place until political crises, in which a power sharing agreement resulted in the splitting of executive power between President Mwai Kibaki and opposition leader and Prime Minister, Raila Odinga, led to its overhauling between 2007 and 2008.

Under the new system which spans the duration of the current parliamentary mandate or until one of the parties to the coalition withdraws, the President appoints a Prime Minister from the party or from the coalition which has the majority seats in parliament. The Prime Minister is responsible for supervising and coordinating government action. The president appoints cabinet ministers from both parties based on the strength of each of the parties in parliament.

Constitutional history and development

Modern Kenya's constitutional history and development, like that of all former British colonies can be traced back to the Lancaster House Conferences designed by the British Empire to prepare its colonies for independence between 1953 and 1979. The constitutional histories and development of most of these countries can be conveniently divided into three different phases: the independence or decolonization period, the post independence or one-party state period and finally, the post Cold War multi-party state period.

Decolonization and constitutional developments

Constitution making in Kenya began during the colonial days and was inherently linked to the policies and activities of the British Colonial Office. Under the framework of the Lancaster House Conferences, three key meetings or constitutional conferences marked Kenya's constitutional development during this period. The first meeting in 1960, resulted in an interim constitution that failed to grant any substantial autonomy to Kenya. The second conference in 1962 negotiated a framework for self government while the third and final conference in 1963 resulted in the drafting and adoption of Kenya's first independent Constitution by the British Parliament.

The 1963 Constitution

The 1963 constitution, which was negotiated between the British government and representatives of Kenya's political parties, marked the end of colonial rule and transformed the colony into a dominion. It established a parliamentary system with executive powers vested in a cabinet. The Cabinet was headed by a Prime Minister, appointed by the Queen of England from the majority party in Parliament. The Queen was also the Commander-in-Chief. Legislative prerogative was vested in the Queen and a two-chamber parliament called a National Assembly. The National Assembly consisted of a Senate, designed to represent regional interests, and a House of Representatives, designed to represent national interests. The constitution also established a system of regional government which replaced the old provinces.

The 1964 Constitution

The Constitution was fundamentally changed in 1964 following a parliamentary amendment. Kenya became a republic and the executive became presidential. The senate and regions were also abolished. This ushered in a period of many minor constitutional amendments combined with measures, which, by the beginning of the eighties, had effectively transformed Kenya into a de facto one-party state led by the KANU.

The development of the post-independence or one-party state constitution

The 1982 Constitutional Amendment

Limited constitutional review in June 1982 officially transformed Kenya into a one-party state. Subsequent parliamentary elections in 1983 and 1988 further reinforced the one-party system.

The development of the post Cold War or multi-party constitution

The Constitutional Amendment of 1991

By the end of the 1990s, institutional decay, economic and social breakdown, agitation from reform movements that dated back to the 1980s combined with international pressure for good governance and the end of the Cold War ushered in a new wave of democratization in Kenya that pushed for fundamental institutional reforms. This would later provoke the most comprehensive constitutional review process since the adoption of the independence constitution of 1963. A parliamentary act in December 1991 repealed the one-party system provisions of the constitution and effectively established a multiparty system. Multiparty elections were held the following year in December.

The 2000-2004 constitutional review process

Following the general elections of 1997, Parliament, on the initiative of the government, passed the Constitution of Kenya Review Act, which created the legal framework for comprehensive constitutional reforms. In furtherance of the Act's provisions, a constitutional review commission, called the Constitution of Kenya Review Commission (CKRC), was established to provide civic education, seek public input and prepare a draft constitution for consideration by an enlarged National Constitutional Conference (NCC). The NCC, referred to as the Bomas was comprised of all members of parliament, 42 representatives from political parties, 3 delegates from each district, 125 representatives of religious groups, women's groups, youth groups, the disabled, trade unions and NGOs. Unfortunately, the process was derailed by deep politicization and disagreements among the stakeholders, resulting in the rejection of the Commission's draft  constitution in the constitutional referendum  of 2005.

The 2009 constitutional review process

The 2009 constitutional process is a sequel to the 2000-2004 process. The rejection of the draft constitution by Kenyans in the referendum of 2005 meant that the 1963 constitution (as amended) remained the basic law of Kenya. Elections organized in 2007 resulted in a political crisis that provoked an unprecedented wave of political violence and killings across Kenya. An AU-brokered power sharing deal subsequently ended the conflict and created a government of national unity between rival factions. The deal also provided for constitutional reforms. Under the Constitution of Kenya Review Act 2008, a Committee of Experts (CoE) was established as the main technical constitutional review organ to drive the process. The CoE was given12 months to produce a draft to be submitted to referendum. The members of the CoE were:

1. Mr Nzamba Kitonga, Chairperson
2. Ms Atsango Chesoni, Deputy Chairperson
3. Ms Njoki Ndung'u,
4. Mr Otiende Amolo
5. Mr Abdirashid Hussein
6. Mr Bobby Mkangi
7. Dr. Ekuru Aukot
8. Professor Christina Murray (South Africa)
9. Dr Chaloka Beyani (Zambia)
10. Dr Frederick Ssempebwav (Uganda)

On 17 November 2009, the CoE released the draft of the constitution which was submitted to the general public for commentary over a 30-day period.

Key issues during the constitution drafting process

Executive

In the wake of the violent elections of 2007, a power sharing deal was facilitated by former UN Secretary-General Kofi Annan between the incumbent President, Mwai Kibaki, and the opposition leader, Raila Odinga. Odinga was appointed Prime Minister, a position from which he could only be removed through a vote of no confidence by the Parliament.

The balance of powers between the President and Prime Minister was a source of contention during the drafting process. The options presented were to have a purely presidential system, a purely parliamentary system or a ‘mixed' system with a President and Prime Minister sharing power. The CoE opted for a mixed, semi-presidential system. The draft constitution submitted by the CoE reduced the powers of the President and gave responsibility for the daily operations of government to the Prime Minister. Some stakeholders rejected this solution, arguing that creating two centers of executive power was potentially destabilizing and that the CoE should have chosen either a presidential or parliamentary system.

Legislature

Discussions during the drafting phase regarding the legislature focused on the powers of the second chamber of the legislature in relation both to the first chamber and to the Executive. The draft proposed a bicameral Parliament, with the upper chamber being the Senate and the lower chamber, the National Assembly. The Senate would have approximately 94 members. Each county would elect one Senator, each region would elect two women Senators and each region would elect one person with a disability or youth. It was proposed that the National Assembly be comprised of members elected from constituencies (one from each constituency), one woman elected from every county, seven persons with disabilities and seven members elected by marginalized communities, groups and workers.

Judiciary

The draft proposed four superior courts: the Supreme Court, the Court of Appeal, the Constitutional Court and the High Court. Additionally, it proposed that current members of the judiciary may only retain their posts after going through a vetting process to clear them of misconduct and corruption. An Interim Judicial Service Commission was created responsible for vetting sitting judges. This requirement has sparked a strong response from the judiciary, which argued that it unfairly targeted one branch of the government, and could be implemented arbitrarily.

Devolution

During the drafting process there was a consensus that powers of government should be shared between a central government and one or more devolved levels of government. The draft proposed devolution of state power to regions, to replace provinces; as well as the regulation of the relationship between the central government and the regions. It also proposed one additional lower level of power - the county level - which replaces the district level.

While the need for decentralization of state power was recognized, there were concerns about the potential unintended effects of devolution. These included the creation of minority groups vulnerable to the local majority population, the lack of capacity for implementation and confusion over the division of power and responsibility.

Dual citizenship

Prior to the 2009 draft constitution, Kenyans could not hold dual citizenship. The draft constitution allowed Kenyan citizens to acquire the citizenship of a second country. Additionally, the draft allowed a person who lost their Kenyan citizenship as a result of acquiring the citizenship of another country to regain Kenyan citizenship by application.

Bringing the constitution into effect (transitional clauses)

Transitional arrangements were also a point of contention, including how the adoption and implementation of the new constitution should affect elected and unelected political office holders and whether or not they should complete their terms.

Key actors

The two primary actors were the political party of the President, the Party of National Unity (PNU), and the political party of the Prime Minister, the Orange Democratic Movement (ODM). The two parties separately presented their views on the draft constitution to the CoE. While the grand coalition committee on consensus building on constitution reforms met several times and agreed, in principle, on a hybrid semi-presidential system, they disagreed on the division of powers between the president and the prime minister. The PNU supported a strong presidency and advocated for greater powers than those proposed by the draft constitution.

International actors

The CoE was a unique body as it comprised of three foreign experts in addition to six Kenyan experts.

Key events in the constitutional process