Unit 4.1:
Why do we have a Constitution?

Handout

Scenario

Some questions:

‘Now that you’ve read the Proposed Constitution,’ says Wanjiku…. But can we presume that many Kenyans actually read the Proposed Constitution before voting in the November 2005 Referendum?
When Kenyans voted, do you think they were voting about the Constitution – or about something else?
In the Referendum, what did Bananas and Oranges really come to stand for?
What do you think were the positive and the negative aspects of the Referendum result?

Key issues in constitution making
Some of the key issues any state’s or organisation’s constitution must address are:

Which people belong to that state or organisation and are to be governed by the constitution;
The entitlements of the people belonging to that state or organisation;
The different departments within the state or organisation, and what issues each department is to deal with;
How leaders representing the people are to be chosen, their powers and how they are to be removed;
How the resources of the state or organisation are to be managed and distributed;
How conflicts within the state or organisation are to be solved.

Key constitutional developments in Kenya

Before 1897	No written constitution; governance through customary law and practices
1895-1862	Colonial period when the Legislative Council (until 1954, made up of only European members) ‘assisted’ the Governor appointed by the British Crown
1963	The Independence Constitution: comprising a parliamentary system with Governor General, as a mainly ceremonial post, and a Prime Minister; a two chamber legislature (House of Representatives and a Senate); federal or majimbo system, with country divided into seven regions; Bill of Rights safeguarding minority groups; independent Judiciary.
1964-1997	Constitutional amendments: changed Kenya into a Republic; abolished majimbo; centralised powers of Executive; established a one chamber National Assembly; introduced (and then removed) provisions making Kenya a one-party state; abolished discrimination based on sex; limited President’s term of office to two terms of five years.
1998-2005	Constitutional reform process: resulting in Proposed New Constitution of 2005 by the Attorney General – rejected by Kenyans in the 2005 Referendum

Key Elements of current Constitution

Affirms that Kenya is an independent Republic and a multi-party democracy;
Asserts that the Constitution is the supreme law in Kenya;
Provides for a mixed parliamentary/presidential system of government;
Establishes that the Executive is largely presidential, with the president being elected directly by the people as head of state and Commander of the Armed Forces; having considerable powers, especially over appointments of key senior officers of government;
Ensures that Judges are provided with security of tenure;
Confers certain civil and political rights of Kenyans, including the right ti life and liberty, protection of private property, etc;
Creates various independent commissions, including the Judicial Services Commission, Electoral Commission, Public Service Commission, etc.

Summary of Kenyan Views on the Constitution
(As reported in September 2002 by the Constitution of Kenya Review Commission)

Give us the chance to live a decent life: with our fundamental needs of food, water, clothing, shelter, security and basic education met by our own efforts and the assistance of government.
We want a fair system of access to land for the future and justice for the wrongs of the past.
Let us have more control over the decisions that affect our lives, bring government closer to us – and let us understand better the decisions we can’t make ourselves but which affect us deeply.
We don’t want power concentrated in the hands of one person.
We want our MPs to work hard, respect us and our views – and we want the power to kick them out if they don’t.
We want to be able to choose leaders who have qualities of intelligence, integrity and sensitivity that make them worthy to lead us.
We want an end to corruption.
We want police who respect citizens – so they can be respected by them
We want women to have equal rights and gender equity.
We want children to have a future worth looking forward to – including orphans and street children.
We want respect and decent treatment for the disabled.
We want all communities to be respected and free to observe their cultures and beliefs.
We assert our rights to hold all sections of our government accountable – and we want honest and accessible institutions to ensure this accountability.

Background Information

What is a Constitution?

When people live or work together, they need to agree on how they will run their affairs. In a political state, as well as in some organisations, this agreement takes the form of a constitution. A constitution sets out the most important principles, rules and structures on how a state or organisation will be governed. Some of the issues a constitution must address are:

Which people belong to that state or organisation and are to be governed by the constitution;
The entitlements of the people belonging to that state or organisation;
The different departments within the state or organisation, and what issues each department is to deal with;
How leaders representing the people are to be chosen, their powers and how they are to be removed;
How the resources of the state or organisation are to be managed and distributed;
How conflicts within the state or organisation are to be solved.

The constitution is the most important law of that state or organisation, and all other laws that are subsequently made flow from what is laid down in the constitution. That is why the constitution is usually referred to as the supreme law.

It is important that the people who are affected by a constitution participate in its formulation and agree to its terms. This is what gives a constitution legitimacy. A constitution is legitimate when it inspires loyalty and confidence among the people it applies to because it reflects their ideals and goals and is understood and accepted by them. Legitimacy is therefore the source of the constitution’s authority.

There are different types of political constitutions. Some are unwritten, while others are written. For example, even though traditional African societies did not have written constitutions, they had rules by which social behaviour and activities were governed, rules that were handed down from generation to generation by word of mouth. Likewise, different constitutions create different structures – some may create a republican state, others create monarchies; some create unitary states, while others create federal states. What is important, as was stated earlier, is that whatever structures are created should be a reflection of the people’s wishes.

The Role of the Constitution

A constitution in any state provides for the manner in which that state should be governed. As a result it performs many roles:

The constitution must state first and foremost whom it governs, and how someone qualifies to be governed by it. It will therefore define the territory and people it governs. An important role of the constitution is therefore that of affirming the sovereignty or independence of the state and of its citizens.
A constitution must also state what system of government is going to exist, establish the various state organs and identify what their powers are. It is the constitution that sets up the Executive system, the Legislature and Judiciary – and specifies their roles and powers. A major role of the constitution is therefore that of allocation of powers and spheres of responsibility – what the Executive, Legislature and the Judiciary may or may not do, what areas of national life they are responsible for, and how they will be provided with resources to exercise their powers.
The constitution must also deal with the relationship between the organs of state and the people, and among the people themselves. How are all these groups and agencies going to relate with each other, and what principles are important in these relationships? The constitution will state what values are important when the government and people relate to one another. For example, a constitution may provide that democracy will be observed, that the human rights of persons and groups will be respected, that equality and equity will be observed in all actions, and then state the procedures for solving any disputes that may arise.
As we have seen, the constitution allocates powers to various state organs; it is possible for those powers to be abused. The concentration of all power into the hands of one individual or group places them in a position to abuse that power and thus to oppress the common citizen. A constitution restricts the possibility of abuse of power by those exercising governmental functions, while at the same time providing them with reasonable powers to fulfil state responsibilities. An important role of the constitution therefore is the limitation of powers. One of the best explanations of why the constitution limits powers was given by James Madison, the principal draftsman of the US Constitution, in the following words:

"But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed: and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."
Source: Federalist 51.
There are various methods by which constitutions seek to limit the exercise of power to prevent its abuse:

The distribution of power among state organs through a system of checks and balances in the constitution and in law. Power, by its very nature, can only be checked or regulated by power. Therefore, in order to guard against the abuse of power, it is necessary to distribute powers among many independent power centres. Furthermore, the distribution of power enables the authorities holding each power to be organised in different ways so as to suit the particular nature and demands of their work. For example, the judicial power requires technical legal learning and training in the procedures of adjudication and legal reasoning, which is not necessarily appropriate to executive or legislative power. Because each kind of power requires different skills and different methods of application, the combination of all powers in one person or body will also make that body unsuitable for the proper exercise of each power.
The system of checks and balances begins with the separation of powers between the judicial, executive and legislative branches of government. However, it goes much further. The system of checks and balances operates at the following different levels:
Separation of powers within each branch of the government. For example, within the legislative sphere, power may be distributed between a Senate and House of Representatives, each with its own different powers. Within the executive branch, ministers are required to work with an impartial public service. Within the judiciary, power is distributed among a hierarchy of courts and appeals are provided for where there is judicial abuse of power or dissatisfaction with the ruling of a particular court.
The division of powers between the central government and lower levels of government, whereby executive, legislative and judicial powers are also exercised by local authorities that are more accessible to the people. The division of power has the effect that each level of government is restricted in the exercise of its power by the existence of other levels of government.
The distribution of powers among the government, other institutions and individuals in the community. This is achieved in a number of ways. First, a Bill of Rights in a constitution places limitations on the powers of government and creates an area of freedom for individual action. In addition, a Bill of Rights provides rights to individuals to protect themselves from the encroaching power of government. Second, free and fair elections held reasonably frequently, and based on universal adult franchise, also give powers to the people to remove a government that has abused its powers. Finally, the existence of many institutions of various kinds or categories that are independent from the state and from each other, such as commissions, churches, universities, professional, cultural and sporting associations are also important for the exercise of personal freedom.

Constitutionalism and the Rule of Law

For a constitution to function efficiently, constitutionalism and the rule of law must also be followed. Constitutionalism means something more than just having a constitution. Constitutionalism exists where a government is subject to a just constitution and body of law. This is because, even where governments and leaders act in accordance with the constitution, the content of the constitution may be harsh and unjust. The constitution may also confer wide and unfettered discretionary powers over fundamental matters that affect individuals, giving power to governments to oppress their citizens. For example, during the apartheid era in South Africa, there was a constitution that was respected by the apartheid government and a separate judiciary, but no universal adult franchise and a permanent exercise of emergency powers. It can also not be argued that constitutionalism prevailed in countries such as the former Soviet Union where the rights of individuals were being abused, even if they had a constitution. In several African and Asian countries, constitutions are also never mentioned or considered as important instruments of governance. Instead, leaders simply ignore them and rely on emergency legislation or other arbitrary methods to govern.

For constitutionalism to exist, there must also exist the rule of law. The rule of law implies that any authority or actions may only be exercised or carried out in accordance with laid down laws. The keystone of the rule of law is the idea of a government of laws rather than a government of men. The rule of law therefore avoids wide discretionary authority in the rulers, so that they cannot make their own laws but must govern according to the established laws. It also ensures that discretion is exercised on the basis of justice and with real justification.
The main characteristics of the rule of law are:

Equality before the law, which means that all persons (individuals and government) are subject to the law, and that the law is applied to all persons equally without discrimination.
The concept of justice, which emphasises law based on standards and the importance of procedures in the application of the law. That is why we have both substantive and procedural laws. The substantive laws create rights and liabilities, and in particular ensure that a person should not be disadvantaged or punished except for a fault or offence that is measured against laid down standards in the law. That is why, in law, a person is said to be innocent until proven guilty. The procedural laws ensure that, before judicial, legislative or executive decisions are taken, a series of checks and balances are in place to prevent decisions that are hasty, ill-conceived or based on corruption, ideology or eccentricity. They also ensure that a person is not disadvantaged except according to rules of procedure and evidence established by law, which ensure a fair trial.
Laws should apply prospectively and not retrospectively. In other words, when a law is made, it should apply to future acts and not to past acts. A person should never be made to suffer in law for an act that was not unlawful when he committed it. Retrospective laws destroy the certainty of law and are arbitrary and vindictive, because they are usually aimed at identifiable persons or groups. Such laws undermine the rule of law.
An independent judiciary. The rights, remedies and procedures provided by the law are of little use when there is no independent, impartial and competent judiciary. This is important because it is the judiciary that administers the law, and if no such powers are given to the judiciary, the law becomes purely academic. In addition, if the judiciary is not independent, the powers it is given to administer the law quickly become oppressive.

In summary, while a constitution is the formal document that lays down the basic rules and principles for governance, constitutionalism and the rule of law are the actual requirements and practices that are necessary for a constitution to be a device of good governance.

Key Constitutional Developments in Kenya

The following table summarises key constitutional developments in Kenya during various periods in Kenya’s history:

Period	Constitutional Developments
Before 1897 (the pre-colonial period)	No written constitution existed and the customary law and practices of the various Kenyan communities provided the structures of governance. In most communities, leadership lay in a council of elders, and community activities were organised around clans and age-groups.
1895-1962 (the colonial period)	A number of constitutional laws called Orders-in-Council were made in England, establishing the East Africa Protectorate (in 1895) and the Kenya Colony (1920). Being a protectorate meant that Kenya was ruled as a foreign territory by the British, while as a colony it became part and parcel of the British empire. Various governance structures were put in place during the colonial period: As a protectorate, executive authority over Kenya was vested in a Commissioner, while as a colony it was vested in a Governor – both appointed by the British Crown. A Council of Ministers assisted the Executive and a Legislative Council and formal courts were also established. These structures initially only had European representation. A legal system was introduced that applied English and Indian laws to Kenya, and specifically applied African customary law and Islamic law to certain personal aspects of the life of indigenous Kenyans Towards the end of this period, after the Mau Mau uprising and agitation by the Africans for independence, a number of Africans and Asians were allowed to join the Legislative Councils under the Lyttleton Constitution of 1954 and the Council of Ministers under the Lennox-Boyd Constitution of 1958. Two constitutional conferences were later held in Lancaster House in London in 1960 and in 1962, where the colonial authorities held consultations with the two major Kenyan African political parties, the Kenya African National Union (KANU) and Kenya African Democratic Union (KADU), leading to the constitutional proposals for the Independence Constitution.
1963 (The Independence Constitution)	The Independence Constitution reflected the compromises agreed upon at the two constitutional conferences at Lancaster House and had the following main features: A parliamentary system of government with the British Crown represented by the Governor General as head of state, and a Prime Minister appointed by the Governor-General from the House of Representatives, who was the head of government. A bicameral (two-chamber) legislature, with a lower House of Representatives, and the Senate as the upper house. A federal system or majimbo, whereby the country was divided into seven regions, each with a legislative assembly and executive and other additional powers. A detailed Bill of Rights and provisions safeguarding the rights of minority groups. An independent Judiciary with security of tenure, as well as an independent and impartial Electoral Commission, public and police services. Specially entrenched provisions of the constitution that could not be easily amended, especially those on majimbo, the Senate and the Bill of Rights.
1964-1997 (Constitutional Amendments)	A number of constitutional amendments between 1964 and 1997 made changes to the Independence Constitution of 1963. A summary of the fundamental amendments and their effect follows: Change of status of Kenya into a Republic with the President as head of state and government. The abolition of majimbo. Centralisation of powers in the Executive. Changes to the constitution amendment procedures by abolishing the requirement of two-thirds majority votes for certain amendments. The merging of the House of Representatives and Senate into a unicameral (one-chamber) legislature known as the National Assembly. Requirements that Members of Parliament vacate their seats if they left the political party on whose ticket they were elected, or if they missed a number of sittings of Parliament. The removal of, and by later amendments, return of, security of tenure of judges, the Attorney General and the Controller and Auditor General. The introduction of, and by a later amendment, removal of, provisions making Kenya a one-party state. The later amendment introduced provisions for multiparty democracy. An increase in the number of members of the Electoral Commission to give it more independence. Abolition of discrimination based on sex. Limitation of the President’s term of office to two five-year terms only and provisions on the required number of votes needed nationally (over 50%), and from each province (at least 25%), for a candidate to be elected as President.
1998-2005 (The Constitutional Reform Process)	Various discussions and processes to review the constitution took place between 1998 and 2005, resulting in the publication of the Proposed New Constitution of 2005 by the Attorney General. The Proposed New Constitution 2005 was voted on and rejected by Kenyans in a national referendum.

Key Elements of the Current Constitution

On the country and people of Kenya
The current Constitution of Kenya states that Kenya is an independent Republic and a multiparty democracy. Its citizens are persons born in Kenya after Independence either of whose parents is Kenyan, or any person born outside Kenya whose father is a Kenyan citizen. The Constitution also provides for certain categories of non-Kenyans who can either be registered or naturalised as Kenyans on the basis of being married to Kenyan men, or by virtue of a specified minimum period of residence in Kenya.

The Constitution is declared the supreme law in Kenya, and all other laws in Kenya are required to be in harmony with the Constitution if they are to have effect in Kenya.

On the system of government
The current Constitution provides for a mixed parliamentary/presidential system of government. A presidential system exists where there is complete separation between members of the Executive and the Legislature, and a member of the Executive cannot also belong to the Legislature. A parliamentary system exists where the head of state (who can either be a president or monarch) is separate from the person in charge of government, who is usually a prime minister. The prime minister and his Cabinet have to be appointed from members of the Legislature. The role of a president or monarch in a parliamentary system is largely ceremonial.

The following are the provisions on the various branches of government in the current Constitution:

The Executive
The Executive in the current Constitution is largely presidential, with the President being directly elected by the people; he or she is the head of state and Commander of the Armed Forces. The Constitution provides for the qualifications that a person who wants to be elected as President must have, and the method of presidential elections. The President appoints a Cabinet of Ministers to advise and assist in the work of government. However, both the President and members of the Cabinet must also be Members of Parliament, which is the major departure of the current Constitution from a purely presidential system.

The President is given considerable powers, especially over appointments to key senior offices in government, and over proceedings in Parliament, which he or she can dissolve at any time.

Parliament
The Constitution provides that the Parliament consists of the National Assembly and the President. The National Assembly is made up of 210 members elected by parliamentary constituencies, according to the procedure provided for in the Constitution, and 12 members nominated by political parties according to the number of elected seats each party has in Parliament. The Constitution also provides for qualifications that are required of a person who wants to be elected or nominated as a Member of Parliament.

It also provides for the procedures to be followed when Parliament is making laws and performing its other functions. Parliament has the power to remove the Executive by passing a vote of no-confidence in the government.

The Judiciary
The Constitution establishes the following courts:

The Court of Appeal, which is the most superior court and hears appeals from the High Court;
The High Court, which is also a superior court and can hear any case in Kenya including appeals from subordinate courts;
Kadhis’ courts, which hear certain personal cases involving parties who profess the Islamic religion; and
Subordinate courts.

The Chief Justice is the head of the Judiciary. Cases in the Court of Appeal and the High Court are heard and decided on by Judges; Kadhis hear and decide on cases in the Kadhis’ courts and magistrates hear and decide on cases in the subordinate courts. The President appoints the Chief Justice, while the JudicialService Commission advises the President on the appointment of the other Judges. The Judicial Service Commission appoints the Kadhis and magistrates, as well as other officers who work in the Judiciary.

The Judges are provided with security of tenure, which means that they cannot be easily removed from their positions. A special procedure provided for in the Constitution must be followed before a judge can be removed from office.

0n human rights
The current Constitution confers certain civil and political rights of Kenyans. These are the right to life and liberty; the right to protection of private property; the right to protection from slavery, forced labour, torture and other inhuman treatment; the right to protection from arbitrary search and seizure; the protection of the rights of conscience, expression, assembly, association and movement; the right not to be discriminated against on any basis, and the right to a fair trial.

However, there are certain circumstances when the Constitution allows some of these rights to be suspended, especially in times of a state of emergency, when the public is put in danger by the enjoyment of any of these rights, or in the case of certain personal matters like marriage, divorce or burial, where personal customary and religious laws are allowed to apply instead, even where they are discriminatory.

On the management of resources
The current Constitution states that all money collected by the government is to be paid into an account of government known as the Consolidated Fund, and all payments for work done for the government are to be made from this fund. Salaries of certain government officers whose offices are created by the Constitution, such as members of the Electoral and Public Service Commissions, Judges and the Attorney General, are also paid from this fund.

The Constitution provides for the procedures that must be followed before any payments can be made from the Consolidated Fund, including approval by Parliament.

Certain land known as ‘trust land’ is given special protection by the current Constitution. Trust land is land that during colonial times was known as native reserves, and which has not been registered in individuals names, nor has been given away to be used for public purposes. Trust land is managed by the County Councils of the area where it is found, for the benefit of the people who stay in that area. Examples of these benefits include grazing on that land, drawing water from it, or cultivating on it.

On independent institutions and offices
The current Constitution creates a number of independent commissions and offices and also provides for their functions. These are:

The Judicial Service Commission, whose functions were discussed when addressing the provisions on the Judiciary;
The Electoral Commission, which registers voters; supervises the presidential, National Assembly and local government elections; ensures elections are free and fair; determines the number and size of constituencies in Kenya and also provides voter education;
The Public Service Commission, which appoints and disciplines all public servants;
The Parliamentary Service Commission, which is responsible for the administration of the National Assembly, and for the appointment and discipline of its staff members;
The Controller and Auditor General, who ensures all expenditure by the government and government agencies is lawful;
The Attorney General, who prosecutes all offences on behalf of the government, and also provides other legal services to the government.

It is specifically provided for in the Constitution that the above commissions and officers shall not be under the direction of any person, and the members of the commissions and officers are also provided with security of tenure, in the same manner as judges. The members of most of the commissions and officers are appointed by the President.

Reflections on the Constitutional Reform Process.

The constitutional reform process in Kenya started in the early 1990s, when a committee was set up by the then ruling and only party, KANU, to review its own constitution. Demands to systematically review the Kenyan constitution were submitted to this committee. In 1991, the Constitution was amended to repeal Section 2 (a), which provided for the single-party state, and to introduce multiparty democracy. Demands for comprehensive constitutional reforms were at first aimed at creating a level playing field for all political actors in the multiparty era, especially after the conduct of the 1992 general election demonstrated that this was necessary. The efforts at constitutional reform were at the time led by civil society and religious groups, such as the Law Society of Kenya, the Citizen’s Coalition for Constitutional Change, the International Commission of Jurists (Kenya Chapter), the Kenya Human Rights Commission, the National Council of Christian Churches and the Episcopal Conference of Catholic Bishops.

The political parties joined in the calls for constitutional reform in 1997, by forming the Inter-Parties Parliamentary Group (IPPG), which was able to agree on and implement a number of amendments to the Constitution and other laws before the 1997 general election. More importantly, the IPPG, in consultation with other stakeholders in the constitutional reform process, was also able to develop the framework for a more comprehensive review of the Constitution in the form of the Constitution of Kenya Review Act, enacted in 1997.

There are three important aspects of the constitutional reform process in Kenya since 1997 that need to be highlighted. The first is that of process, the second is the substance of the reform and the third is the lessons learnt from the constitutional reform process.

The Process
The constitutional reform process was from the beginning intended to be participatory and all-inclusive. To this end the Constitution of Kenya Review Act created a number of organs for constitutional review through which Kenyans could participate in the review process, namely the Constitution of Kenya Review Commission, Constituency Constitutional Forums, the National Constitutional Conference, the National Assembly and the Referendum. People’s participation in these fora was by way of public hearings, submission of memoranda, discussion and debate, and eventually by voting in the Referendum. These processes were only agreed upon after protracted negotiations, which necessitated amendments to the Constitution of Kenya Review Act in 1998, 2000 and 2004. The amendments made to the Act in 1998 and 2000 were aimed at bringing on board all stakeholders in the constitutional reform process, especially the civil society Ufungamano group. The 2004 amendments provided a procedure for dealing with contentious issues in the proposals that were made by the National Constitutional Conference on the new constitution, and to provide for adoption of the new constitution by way of a Referendum.

The Substance
The substantive issues in the reform process concerned the actual aspects of the current Constitution that Kenyans wanted amended. The Constitution of Kenya Review Act also provided for certain objectives, which contained values and principles that had to be included in the new constitution. These objectives largely addressed what were considered to be weaknesses of the current Constitution. The values provided for included:

national unity and peace;
respect for human rights;
gender equity;
democracy, good governance and the rule of law;
people’s participation in government;
devolution of powers;
free and fair elections;
accountability by public authorities; and
respect for ethnic, religious and other diversity.

The Constitution of Kenya Review Commission summarised the views it received from members of the public on the substance of the constitution as follows:

Thirteen main points from the people:

Give us the chance to live a decent life: with our fundamental needs of food, water, clothing, shelter, security and basic education met by our own efforts and the assistance of government.
We want a fair system of access to land for the future and justice for the wrongs of the past.
Let us have more control over the decisions that affect our lives, bring government closer to us – and let us understand better the decisions we can’t make ourselves but which affect us deeply.
We don’t want power concentrated in the hands of one person.
We want our MPs to work hard, respect us and our views – and we want the power to kick them out if they don’t.
We want to be able to choose leaders who have qualities of intelligence, integrity and sensitivity that make them worthy to lead us.
We want an end to corruption.
We want police who respect citizens – so they can be respected by them.
We want women to have equal rights and gender equity.
We want children to have a future worth looking forward to – including orphans and street children.
We want respect and decent treatment for the disabled.
We want all communities to be respected and free to observe their cultures and beliefs.
We assert our rights to hold all sections of our government accountable – and we want honest and accessible institutions to ensure this accountability.

Source: The People’s Choice: The Report of the Constitution of Kenya Review Commission - Short Version, CKRC, September 2002.

The Constitution of Kenya Review Commission published a number of documents, which detailed the recommendations on a new constitution. First, based on the views received from the public, the Commission published the Draft Bill to Amend the Constitution of 2002. This is the document that was presented to the National Constitutional Conference, held at Bomas of Kenya in Nairobi, for discussion, debate and adoption. Second, after the National Constitutional Conference, the Commission published the Draft Constitution of Kenya of 2004 popularly referred to as the BomasDraft. The Constitution of Kenya Review Act was then amended to allow for contentious issues in the Bomasdraft to be identified by the Parliamentary Select Committee on Constitutional Review, after consultations with stakeholders. The recommendations of the Parliamentary Select Committee were approved by Parliament, and the Proposed New Constitution of 2005 was published by the Attorney General and incorporated the amendments on these contentious issues. The Proposed New Constitution of 2005 was then subjected to a referendum and rejected by a majority of Kenyan voters on November 21, 2005.

Lessons Learnt

It was evident throughout the constitutional reform process that it was a highly charged political process, with deeply vested political interests, and that it needed careful management to succeed. This was particularly evident during the National Constitutional Conference, when a section of the delegates withdrew from the constitutional reform discussions, and also in the campaigns on the referendum that were conducted by both the “Yes” and “No” sides. The following lessons can be learnt from the conduct and results of the constitutional reform process, and will be relevant in future constitutional reform initiatives.

Inclusivity and Negotiated Agreement

This was a critical issue, especially on the process of reform. One of the reasons given by those who voted “No” to the Proposed New Constitution was that the constitutional reform process, especially towards the end, had not been inclusive, with accusations that the Parliamentary Select Committee on Constitutional Review had not consulted with all key stakeholders on what were perceived to be the contentious issues before making its recommendations. It was also alleged that the delegates to the National Constitutional Conference were not representative of the Kenyan population, therefore their recommendations in the Bomas draft did not reflect the wishes of the Kenyan people. There is therefore a need for adequate and effective representation of all interests during negotiations throughout the reform process, so that any agreements reached on reform are acceptable to the public.

Entrenchment of the Process

It will be necessary for any future processes to be specially protected – preferably by way of constitutional provisions – from political interference. One major weakness of the Constitution of Kenya Review Act was that, being an ordinary law, it was easy to amend it to suit particular interests. An ordinary law requires only a majority of those present to vote and change it, so long as there is a quorum in Parliament, which only requires 30 Members of Parliament to be present. A constitutional provision, on the other hand, requires a two-thirds majority vote in Parliament to change it.

Civic Education

It was apparent that the period for civic education allocated for the referendum (approximately two months) was inadequate and not many Kenyans people were able to inform themselves on the contents of the Proposed New Constitution. The issue of the timing of the civic education was also critical. Civic education was being conducted simultaneously with referendum campaigns, and more often than not was relegated to second place after politics and political statements. In some instances, there were deliberate misinterpretations and misinformation being given on the Proposed New Constitution by politicians to further their own political interests. To enable citizens to make informed decisions and choices, it is important that the timing of civic education and campaigns in any future referendums are kept clearly separate, and that civic education precedes the campaigns.

The Referendum Law

The High Court of Kenya in two recent cases affirmed the importance of a referendum in public participation in decision-making, and especially on the acceptance by the people of a constitution. What was clear in the recent referendum was that most Kenyans did not vote on the contents of the Proposed New Constitution, but on their support of or opposition to the government’s policies and performance. It was also arguable that voting was on ethnic lines, again based on whatever grievances a particular ethnic community had with the government’s performance.

There were two causes of these outcomes. One was that the law governing the referendum was clearly inadequate and did not anticipate, nor could it effectively deal with, the political atmosphere in which the referendum was conducted. Second, the vote was on the entire Proposed New Constitution, which meant that it was a case of “throwing the baby out with the bathwater” if you did not like a particular provision, even if the other provisions were acceptable. There is therefore a need to enact a more effective referendum law, and to consider holding only issue-based referendums on identified contentious issues in the future. This will safeguard whatever concrete, uncontroversial gains have been made during the constitutional reform process.

Notes for Facilitators

Objectives

To highlight the key issues that should be addressed in any constitution-making process;
To identify the main functions of a national constitution;
To establish the main elements of ‘constitutionalism’ – and its relationship to the ‘rule of law’;
To identify the principles involved in ‘rule of law’;
To trace the key constitutional developments in Kenya;
To describe the leading elements of Kenya’s current Constitution;
To explore the lessons that have been learnt from the constitutional reform process that has been ongoing in Kenya since the early 1990s.

Sequence
1. The Scenario: Gado’s cartoon is a comment on the 2005 Referendum on the Proposed New Constitution. After asking the participants what they see in the drawing, ask the questions that are on their handout:

‘Now that you’ve read the Proposed Constitution,’ says Wanjiku…. But can we presume that many Kenyans actually read the Proposed Constitution before voting in the November 2005 Referendum?
When Kenyans voted, do you think they were voting about the Constitution – or about something else?
In the Referendum, what did Bananas and Oranges really come to stand for?
What do you think were the positive and the negative aspects of the Referendum result?

2. Functions of a Constitution: The key issues that should be addressed in constitution-making, found in the Background Information, are also presented in the Handout. Go through these – noting that they should be valid for any organisation and not only a state. Ask the participants whether they are valid – and whether there are other factors that should be included in the list.

You might, at this point, elaborate on some of the other points made in the Background Information – about the importance of such concepts as ‘sovereignty’, ‘allocation of powers’, ‘limitation of powers’, ‘checks and balances’, ‘separation of powers’.

Also, give a brief presentation on ‘the rule of law’ – drawing on the section ‘Constitutionalism and the Rule of Law’.

3. Key Constitutional Developments in Kenya
The Handout contains a summary of the ‘key constitutional developments in Kenya’. Go through this table with the group – elaborating where necessary, drawing on the greater detail presented in the Background Information.

4. Key Elements of the Current Constitution
Again, there is a summary in the Handout. You might need to provide more detail – drawing on what is given in the Background Information.
5. Reflections on the Constitutional Reform Process
This is perhaps the most important theme. The 13 points given in the handout – from the Report of the CKRC – will provide a very good trigger for a discussion on what the people of Kenya want in a new constitution.

With regard to the lessons learnt from the review process, ask the group about their views. Note if their views have changed since the opening discussion triggered by Gado’s cartoon. Compare the group’s views with those presented in the Background Information.