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CONSTITUTIONAL
DEVELOPMENT IN KENYA IN 1999
By Kivutha Kibwana
INTRODUCTION
This report traces and evaluates constitutional development
in Kenya in 1999. Section One describes the meaning and nature
of constitutional development. Section Two presents a historical
perspective of constitutional development from 1960 to1999.
The report then proceeds to describe constitutional development
in 1999 under several sub-sections, that is, establishing
the process for constitutional change; constitutional amendment
in 1999; implementation of the constitution; and citizen activism
and constitutional development. Section Four discusses the
National Convention
Executive Council’s (NCEC’s) attempt to break
the constitutional impasse. The concluding section tackles
emerging issues of constitutional development in 1999.
The report reveals that the pre- 1999 consensus reached by
citizens in entrenching a people driven process of constitutional
review had begun to be reversed in 1999. President Daniel
Arap Moi, the ruling Kenya African National Union (KANU) and
the co-operating opposition National Development Party (NDP)
mounted a vigorous campaign to the effect that constitutional
reform was the preserve and responsibility of parliament,
not civil society. By December 1999, Moi had secured a political
strategy for the amendment of the 1998 review law through
a parliamentary select committee headed by NDP leader Raila
Odinga. In response, civil society and the reform inclined
opposition established the Ufungamano Initiative led by religious
leaders with the mandate that it makes and enforces a people’s
constitution and finds a suitable way of enforcing it. Hence
two parallel systems of constitutional review were born in
1999, thereby rendering trouble free constitution making an
impossibility.
SECTION ONE: THE MEANING AND NATURE OF CONSTITUTIONAL
DEVELOPMENT.
The present initiative by KITUO CHA KATIBA: EAST AFRICAN CENTRE
FOR CONSTITUTIONAL DEVELOPMENT to annually review the state
of constitutional development and thus constitutionalism is
invaluable for several reasons. Such assessment is likely
to reveal existing shortfalls for corrective action. Also
corresponding strengths can be highlighted and build upon.
The evaluation enables a country to monitor its record of
constitutionalism and democratisation thereby creating an
opportunity to incrementally strengthen its culture of constitutionalism.
If and when many countries annually review their record of
constitutionalism, it will become possible to compare and
borrow best practices in constitutionalism continent-wide.
KITUO’s new effort is thus likely to strengthen constitutionalism
in East Africa and even Africa.
Constitutional development can be examined from several perspectives.
Whenever a country makes a new constitution, one can analyse
all the processes and activities which feed into and shape
such constitution making. Secondly constitutional development
concerns the way in which the citizenry relate to a new or
existing constitution. Those activities accompanying the changing
or amendment of a constitution similarly provide another aspect
of constitutional development. The other key component concerns
the implementation of the existing constitution by the executive,
judiciary and also the legislature.
A close examination of constitutional development will crucially
then show the extent to which a country’s citizens and
officials collectively make and embrace constitutional norms.
The tendency in Africa however has been to depart from the
official elite made constitution. I have elsewhere summarised
this trend as follows:
It is clear to me that in any African country at any given
time more than one constitution may be in place.
The written or textual constitution is also the aspirational
constitution. Opposition leaders or elements and the citizens
may clamour for the primacy of such constitution. The political
incumbency often claims to follow such a constitution - sometimes
even to the letter - but that is usually in rhetoric, or at
best the leadership selectively abides by certain parts of
the written constitution. Where it is obvious that the leadership
feels frustrated by certain sections of the constitution and
there is pressure or expectation for these to be followed,
then amendments are engineered. These formal amendments are
undertaken so that the leadership can continue to argue that
it is still faithful to the original constitution or a citizens’
derived constitution.[i]
This survey on Kenya’s constitutional development also
examines the extent to which the legal constitution was adhered
to in 1999. Finally in our analysis of constitutional development,
we must also examine whether non-state actors conduct their
own affairs through their own, as well as official constitutional
norms. This is an important area of enquiry because non-state
actors that demand the state to act constitutionally and democratically
must practice constitutionalism.
SECTION TWO: CONSTITUTIONAL DEVELOPMENT IN HISTORICAL
PERSPECTIVE 1960 - 1999
Since this Kenya’s 1999 Annual Report on constitutional
development is the first in KITUO’s series, a summary
of constitutional and significant political developments in
the period 1960 - 1998 will form a sound basis for the report.
Such outline including highlights of 1999 developments is
presented below:-
1960, 1962 and 1963: Lancaster House Constitutional Conferences
were held in London and Nairobi (1963) to negotiate independence
constitution.
1963: May elections were held on the principle of one person,
one vote. The Kenya National African Union (KANU) won. On
June 1 the country attained internal self-government. On December
12, full independence was granted
1963 – 1968: Secession threat by Kenyan Somalis led
to protracted civil war and the promulgation of emergency
law until 1992. The North Eastern Province has been run by
the government analogously to an occupied territory during
war time.
1964: Kenya became a republic and Jomo Kenyatta her president
after unification of the hitherto
dual executive. KANU and the opposition party Kenya African
Democratic Union (KADU) merged to pave way for de facto one
partism.
1964 (twice), 1965, 1966 (four times), 1967, 1968 (twice),
1969, 1974 (twice), 1975 (twice), 1977, 1979, 1982, 1984,
1986, 1987, 1988, 1990, 1991 (twice), 1992, 1997, 1999: Various
constitutional amendments were effected. The first set (1964-
1988) dismantled multipartism. The second set (1990 to the
present) have begun to hesitantly recreate a multiparty democracy.
1965, 1969, 1975, 1990,1996, Assassinations of Pio Gama Pinto,
Tom J. Mboya, J.M. Kariuki, Robert Ouko and Karimi Nduthu
respectively
1966: An opposition party the Kenya Peoples’ Union (KPU)
was formed.
1969: KPU was banned and its leaders detained.
1969, 1974, 1979, 1983, General elections were held
1988, 1992, 1997, 1978 Jomo Kenyatta died, his vice president
Daniel Arap Moi succeeded him as president.
1982: A constitutional amendment made Kenya a dejure one
party state to forestall the registration of an opposition
political party by Jaramogi Oginga Odinga and George Moseti
Anyona. In August, there was an attempted military coup d’etat
which was ruthlessly crushed.
1982 – 1988: Protracted crackdown of MWAKENYA and other
political dissidents. These years represent the hay days of
the Moi dictatorship.
1990: Saba Saba demonstrations whose central demand was resumption
of multipartism were violently broken by the police. Scores
of demonstrators were killed. KANU established a Review Committee
to collect views from Kenyans on how KANU should be reformed.
1991 – 1993: Politically instigated ethnic clashes
left about 1000 Kenyans dead and many thousands more especially
from the major ethnic Kikuyu community rendered internal refugees.
1991: Donors withdrew budgetary support aid so as to pressurise
for return to multipartism.
1991: Multipartism restored through the repeal of section
2A of the constitution.
1995: On New Year’s ever, Moi promised constitutional
review would start.
1996: The National Convention Planning Committee (NCPC),
the executive arm of pro-democracy forces who had come together
to agitate for constitutional change was formed.
1997: The National Convention Assembly and its executive
arm the National Convention Executive Council (NCEC) were
formed. Between May and July, widespread mass action forced
the government to concede to minimum constitutional and legal
changes necessary to facilitate freer and fairer elections.
The Constitution of Kenya Review Commission Act, 1997 was
passed to provide a framework for constitutional change.
1997-1998: Second generation of politically instigated ethnic
clashes.
1998: Negotiations between civil society and the political
class for the review of the Constitution of Kenya Review Commission
Act, 1997 led to an extensive amendment of the Act via the
Constitution of Kenya Review Commission (Amendment) Act 1998
(the amended law was now called Constitution of Kenya Review
Act, 1997) and the creation of a substantially people driven
process of constitution-making was created.
1999: KANU frustrated the establishment of organs for the
review of the constitution and therefore the implementation
of the review law;
KANU and NDP successfully sponsored a parliamentary motion
to facilitate the amendment of the Constitution of Kenya Review
Act, 1997;
NCEC launched Katiba Mpya- Maisha Mapya: A Vision for National
Renewal, a document that detailed how Kenya could overcome
the existing political stalemate;
The Ufungamano Initiative, a citizen’s lobby on constitutional
change led by the religious sector was established with the
mandate that it should facilitate the making of a constitution
for Kenyans by themselves.
SECTION THREE: CONSTITUTIONAL DEVELOPMENTS IN 1999
3.1 Establishing the process of constitutional change.
President Daniel Arap Moi assented to the Constitution of
Kenya Review Commission (Amendment) Act, 1998 on 24th December
1998. The law’s commencement date was 30th December
1998. Section 4 (1) of the Constitution of Kenya Review Act,
19973 provided:
Within fifteen days of the commencement of this Act, the bodies
referred to in sub-section (2) of section 3 shall submit to
the Attorney General the names of the persons nominated in
accordance with that section for appointment as commissioners.
Section 3 (2) established the constitutional commission to
consist of:
• The chairperson
• Thirteen persons nominated by the political parties
as represented in the Interparties Parliamentary Committee
of whom at least two shall be women
• One person nominated by the Kenya Espicopal conference
of Bishops
• One person nominated by the Muslim Consultative Council
and the Supreme Council of Kenya Muslims
• One person nominated by the Protestant churches in
Kenya as represented by:
i. National Council of Churches of Kenya
ii. The Seventh Day Adventist Church
iii. The Church of God
iv. The Kenya Indigenous Christian Churches
v. The Evangelical Fellowship of Kenya
• Five persons nominated by women’s organisations
through the Kenya Women’s Political Caucus of whom at
least one shall be a woman with disability.
• Four persons nominated by the civil society through
the National Council of Non-governmental Organisations, particular
regard being had to the youth, the disabled, professional
associations and the pastoralists in Kenya, of whom at least
one shall be a person with disability and one a woman.
• The Attorney General or his representative who shall
be an ex officio commissioner.
During the third Safari Park forum held to negotiate the amendment
of the initial Constitution of Kenya Review Commission Act,
1997, KANU argued it was not necessary to specify the number
of commissioners each parliamentary political party was entitled
to nominate since the Inter Parties Parliamentary Committee
would settle the issue. However informally agreement was reached
on how the 13 seats reserved for parliamentary political parties
would be shared.
When the parliamentary parties eventually sat to dispose of
the issue, no agreement was reached. In January, they twice
failed to agree and similarly on February 4, 5 and 194. On
February 19, KANU even sent 22 representatives (instead of
2) to the meeting, which was coordinating the establishment
of the commission. Further meetings convened on March 22 and
April 14 did not yield consensus on the selection of political
parties nominee commissioners.
The Protestant churches as well as the Kenya Women Political
Caucus each ended supplying two sets of commissioners to the
Attorney General. The selection of nominee commissioners by
the National Council of Non Governmental Organisations was
also marred by rigging of the elections when one faction of
the electorate colluded with the Ministry of Culture and Social
Services to register civil society groups which instantly
became eligible voters.
Due to the manipulations described above, the commission was
never established and thus the constitutional review process
could not start.
Although a suit by the bona fide officials of the Women Political
Caucus resolved the nomination issue for the Caucus,5 other
stage-managed stalemates in the nomination process obstructed
the establishment of the commission.
Although the Constitution of Kenya Review Commission (Amendment)
Act, 1998 was largely viewed by the stakeholders who negotiated
it as satisfying the criteria of a peoples’ driven process
of constitutional change,6 the National Convention Executive
Council identified fifty flaws, which rendered the law difficult
to implement.7 Three broad positions were developed over time
in relation to whether the review law as amended by the 1998
Act should be amended further or operationalized as it was.
These were:
According to KANU and NDP, the Act had to be amended to give
parliament supreme control over the constitutional review
process
The non KANU - NDP political parties and civil society groups
which had the right to nominate commissioners wanted the Act
to be immediately operationalized
NCEC called for further amendments to the Act to secure a
people’s constitution making process further although
it recognised that the said Act represented the then highest
level of national consensus on how the constitution should
be changed.
After effectively frustrating the establishment of the commission,
Moi and KANU resumed the boisterous campaign that the proper
forum for constitutional reform was parliament because, according
to Moi, the process under the review law would cost colossal
sums of money and ‘Wanjiku’ - a euphemism for
the ordinary Kenyan did not know what the constitution entailed
and could not therefore participate in its making. A KANU
parliamentary caucus meeting in October resolved to seek parliamentary
changes to the 1998 review law to exclude civil society involvement
in the organs of constitutional review.
In November and December, an intensified campaign was undertaken
to set in motion the machinery for amending the Constitution
of Kenya Review Commission (Amendment) Act, 1998. A parliamentary
select committee was established ostensibly with the mandate
to break the stalemate on constitutional review. This committee
was dominated by both KANU and NDP.8 Fifty-four non - NDP
opposition MPs led by the Democratic Party (DP) had previously
boycotted the proceedings of parliament during the deliberations
on the establishment of the parliamentary select committee.
A spirited attempt by Moi to lobby opposition leaders to embrace
the route of parliamentary review of the constitution failed
before the fait accompli passage of the December 15, National
Assembly’s resolution establishing a select committee.
The Resolution stated:
That while noting that the Constitution of Kenya Review Commission
(Amendment) Act 1998 received Presidential Assent on December
24, 1998, with a commencement date of December 30, 1998; cognisant
of the fact that the implementation of the Act has been hampered
by the disagreement over the nomination of commissioners among
some stakeholders, and concerned that the review process is
now behind schedule as a result of the impasse; 9and in order
to facilitate consensus building necessary to resolve the
stalemate amongst the bodies specified in the First schedule
to the Act, the formation of a Review commission and the co-ordination
of the constitutional review process, this House resolves
to establish a select committee comprising 27 members to review
the Constitution of Kenya Review Act according to the wishes
of Kenyans and facilitate the formation of the Review Commission.
The non -KANU - NDP MPs, with the exception of three MPs,
boycotted the proceedings of the select committee. On December
17, the chairman of the select committee Raila Odinga announced
that his committee would meet Kenyans and foreign experts
to solicit their opinions on the Review.
From the above account it is clear that:
By the end of 1999 a peoples’ driven process of constitution
making, which had been agreed on -though imperfect - was about
to be dismantled by parliament. However there was no consensus
among the MPs on the move.
KANU had appeared to support the Constitution of Kenya Review
Commission (Amendment) Act, 1998 since in 1998 it lacked the
political strength to oppose or scuttle it. However, KANU’s
negotiations at Safari Park were not bona fide. Indeed even
at the Safari Park forum, KANU’s position was that only
parliament should review the constitution.
• Through the Attorney General’s office and some
members of the Safari Park Drafting Committee, KANU ensured
that the 1998 law was written sloppily rendering it difficult
to implement.
• The manner in which the commissioners were allocated
especially among civil society – both secular and religious
- created divisions, in that progressive segments of civil
society were excluded from the composition of the commission.
Opportunistic elements that had played a minor or no role
at all in the struggle for the new constitution ended up in
the abortive commission. Acrimony was thereby sowed in the
civil society.
• The elite has not developed a consensus on the need
for and scope of constitutional change.
• KANU supports minor changes while other forces support
more basic or fundamental changes aimed at undoing dictatorship
or cosmetic multipartism.
If then 1997 was a crucial year in the agitation for constitutional
change, 1998 the year of negotiations, 1999 was the year of
stalemate; a low point in Kenya’s journey towards democratic
renewal.
3.2 Constitutional Amendment in 1999
Towards the end of 1999, curiously a bi-partisan movement
to change one aspect of the constitution developed. Initially
KANU appeared to resist it only to embrace it in no time.
Assisted by a non-governmental organisation called Centre
for Governance and Development (CGD), an opposition MP Peter
Oloo Aringo introduced a private member’s bill whose
objective was to amend the constitution so as to enhance the
independence of parliament. The bill sought the establishment
of an independent parliamentary service commission.10 Hitherto
parliamentary staff came under the ambit of Public Service
Commission. Moi suggested to KANU that his party should defeat
Aringo’s bill and then table a similar bill six months
later. Twenty-five KANU MPs who apparently disagreed with
their chairman and president vowed to support Aringo’s
bill. Subsequently however the government took over the bill
which was unanimously passed on November 11.
Although the above bill appeared to be an opposition initiative,
KANU did not ultimately object to it for various reasons.
These are:
Passage of the constitutional amendment by parliament strengthened
KANU’s argument that only parliament should review the
constitution;
KANU wanted parliament to feel it was independent and should
assert itself over civil society although KANU-NDP still controlled
parliament;
A parliamentary service commission alone could not guarantee
the independence of parliament because other factors that
promoted its subservience to the executive such as constituency
gerrymandering, independence of the electoral commission etc.
were not dealt with.
NCEC and the civil society generally criticised the lone amendment
on the basis that it was undertaken without consultation with
the people of Kenya and gave the impression that parliament
was only concerned with those amendments which favoured it
as an institution.
3.3 Implementation of the Constitution
There are several key questions regarding the constitution’s
implementation, which have not been hitherto resolved by legislative
intervention or judicial interpretation. They were not also
resolved in 1999. These are:
According to section 9, if a president holds office for less
than 5 years, has he/she served a term? The section provides:
9(1) The president shall hold office for a term of five years
beginning from the date on which he is sworn in as president.
(2) No person shall be elected to hold office as president
for more than two terms.
According to section 16(1) offices of Minister of the Government
of Kenya shall be established by parliament or, subject to
any provisions made by parliament, by the president. Since
parliament, has never passed such a law, what is the status
of the current ministries?
Section 16 (2) provides the president shall, subject to the
provisions of any written law, appoint ministers from among
the members of the National Assembly. Such enabling law is
yet to be passed.
Presumably the law in question could provide that the president
can appoint ministers outside the national assembly as well
and that the National Assembly could vet the president’s
ministerial nominations.
The 1997 amendment of this section, which added the language
‘subject to the provisions of any written law’,
is yet to be exploited.
Section 33 (3) provides that nominated MPs ‘shall be
nominated by the parliamentary parties according to the proportion
of every parliamentary party in the National Assembly, taking
into account the principle of gender equality. ‘The
judiciary is yet to interpret what ‘taking into account
the principle of gender equality’ means.
Section 47 provides for the alteration of the constitution.
The courts have not yet interpreted whether this includes
de novo constitution making.
According to section 61(2) puisine judges shall be appointed
by the president acting in accordance with the advice of the
Judicial Service Commission. The judiciary has not yet been
moved to determine whether persons appointed as judges without
the advice of the Judicial Service Commission are legally
appointed.
Section 84 (5) provides:
Parliament (a) may confer upon the High Court such powers
in addition to those conferred by this section as may appear
to be necessary or desirable for the purpose of enabling that
court, more effectively to exercise the jurisdiction conferred
upon it by this section; and
(b) Shall make provision -
(i) for rendering of financial assistance to any indigent
citizen of Kenya where his right under this chapter (chapter
V) has been infringed or with a view to enabling him engage
the services of an advocate to prosecute his claim; and
(ii) for ensuring that allegations of infringement of such
rights are substantial and the requirement or need for financial
or legal aid is real. Parliament is yet to pass a law to implement
this constitutional provision.
Under section 84 (6) the Chief Justice is empowered to make
rules with respect to the practice and procedure of the high
court in relation to the vindication of human rights. The
Chief Justice has never made such rules.
According to sections 115, 117 and 118, trust land cannot
be alienated to those it is not held in trust for unless it
is set apart first. Since independence substantial land has
been alienated in contravention of the constitution. No court
has conclusively interpreted these provisions.
Some areas in which the executive acted in support of the
constitution in 1999 are the following:
• In January the minister in charge of agriculture sacked
the entire National Irrigation Board after farmers’
riots which had challenged its management
• In March, the Executive pressurised the board of the
National Bank of Kenya to take responsibility for massive
bad loans and thereby resign. The government had 22.5% shares
in the bank and a public parastatal the National Social Security
Fund (NSSF) had 37.5% shares in the bank. The government seemed
interested in sending a signal that it was protecting public
property.
In April the President finally appointed a Vice President
after 14 months of the position being vacant.
In July the President appointed the so-called Dream Team consisting
of technocrats sourced from the private sector and multilateral
organisations. Their mandate was to clean the civil service
and revive the economy.
In July the President placed a ban on the allocation of land
until further notice. This was as a consequence of public
protest against illegal allocation of such land and public
forests.
In September the President reduced the number of ministries
from 27 to 15 but retained the 27 ministers, implying that
most of the ministries are led by several ministers.
Several cases of constitutional significance were lodged in
court. In February the Law Society of Kenya sued the Chief
Justice requiring him to establish a tribunal to investigate
bribery allegations against high court Judge Richard Kuloba
under section 62 of the constitution. 11 In February, the
president was sued a second time for not appointing a vice
president.12 The suit by the Supreme Council of Kenya Muslims
enjoined the Attorney General, whom it accused of failing
to advise the President appropriately on the matter. In September,
Nairobi Town Clerk Zipporah Wandera was jailed for contempt
of court. She had defied a court order of June 25th stopping
the Nairobi City Council from preventing Qurdoba Enterprises
from distributing petrol in Nairobi. Her activity was viewed,
inter alia, as violating constitutionally protected property
rights of Qurdoba Enterprises.13
In September a new Chief Justice who had previously been a
pro-government prosecutor famous for prosecuting human rights
and pro-democracy activists was appointed. The Law Society
of Kenya unsuccessfully opposed his elevation. 14The February
cases were never concluded in the plaintiffs’ favour.
It is clear from this segment that both the executive and
the judiciary have not actively safeguarded the constitution
and promoted democratic changes.
3.4 Citizen Activism and Constitutional Development
In the first part of the year, many citizens and their groups
were involved in activism, which impacted on constitutional
development:
In January, two women were arrested in a demonstration protesting
the allocation of the Nakuru Municipality Retail Market to
a private developer. Traders demolished a fast food facility
erected in the same market.
In January, rice farmers in Kirinyaga and Mwea protested against
the manner in which the National Irrigation Board handled
their affairs. One farmer was shot dead.
In February students of University of Nairobi rioted over
the illegal allocation by government of Karura forest to private
individuals.
In March riots broke out in Nyeri and Karatina, Central Province
in which citizens were protesting the poor state of roads.
Also in Kisumu Jua Kali traders protested the demolition of
their kiosks by the municipal council.
In March, inter - denominational prayers were held in Nairobi
to protest allocation of Karura forest to private developers.
On March 11, NCEC relaunched a reform movement to agitate
for constitutional reform.
In April mourners protesting the killing of the chairman of
the Kamae Squatters Resettlement scheme carried his casket
to the Chief’s camp, blaming his death on the government.
In June, a Budget Day demonstration for an all inclusive process
of constitutional change was violently broken outside parliament.
PCEA clergyman Rev. Timothy Njoya and NCEC co-convenor Davinder
Lamba were injured.
In June, a strike against the Transport Licensing Board rules
was staged by the Matatu transport sector. The said rules
sought to phase out tout operators and to replace them with
city council workers.
A rally held to commemorate Saba Saba Day in July called on
Kenyans to force Moi out of office.
In July Nairobi City Council workers held a strike to demand
salary arrears.
On September 21, Catholic bishops demanded a peoples’
process of constitutional change. The 15 bishops and 2 priests
met the president at State House.
On September 26, the Catholic church launched civic education
materials to prepare Kenyans for constitutional review. Archbishop
Ndingi Mwanaa Nzeki warned that dictators will not be allowed
to derail the process.
On September 30, 23 Catholic bishops warned the country’s
leadership that civil strife was imminent if the several crises
facing the country were not addressed. In their pastoral letter
they identified the key problems as corruption, hunger, plunder
of public resources, HIV/AIDS, insecurity and collapsed infrastructure.
On October 17, Catholic bishops began another round of protests
over the review process with an open mass at the Holy Family
Minor Basilica, Nairobi.
On October 21, religious leaders united in condemning KANU’s
proposal that civil society be excluded from the review process.
They demanded that the Attorney General reconvenes the Safari
Park Forum so that it could oversee the nomination of commissioners;
that the 1998 review law should not be taken back to parliament;
and that all the stakeholders named in the Act must participate
in constitution -making.
On December 3, religious leaders announced their intention
to call a meeting of all stakeholders at Ufungamano House.
On December 15, the Ufungamano Initiative was established
with the mandate that it should write a peoples’ constitution
for Kenya.
In 1999 Kenyans were engaged in various protests and other
activities which had constitutional implications. Also the
religious fraternity accepted for the first time to lead the
constitutional reform process. However, the religious sector
may not have been prepared to lead citizens in preparing a
new constitution but rather in renegotiations to amend the
Constitution of Kenya Review Commission (Amendment) Act, 1998
to facilitate the onset of bona fide constitutional review.
A bigger responsibility than the religious leaders had anticipated
was suddenly thrust on them.
SECTION FOUR: NCEC’S ATTEMPT TO BREAK THE CONSTITUTIONAL
IMPASSE
In November, NCEC launched an important document, which it
hoped would form the basis for national discussion on how
to overcome the country’s political stalemate.15 The
NCEC’s National Rescue Action Plan was predicated, inter
alia, on:
‘a unified movement of all democratic forces (since)
to work for the salvation of the nation rather than for limited
political goals, we need a movement of people from all ethnic
groups, all religious faiths, all occupations and all democratic
political positions working together in solidarity.’16
The Action Plan17 consisted of six key steps:
(i) Breaking the current stalemate over constitutional reform
through the establishment of a self-governing multisectoral
forum which would:
(a) Renegotiate the Constitution of Kenya Review Act, 1997
to fix the flaws in the Act and make the review process workable
and democratic
(b) Negotiate the formation of a neutral transition institution
to act as a caretaker government during the period of constitutional
review
(c) Negotiate a transitional justice mechanism to grant immunity
from prosecution persons who may have committed political
crimes in the past
(d) Negotiate a package of interim democratic reforms to enable
Kenyans participate freely in constitutional review
(e) Play the role of “citizen’s watchdog”
throughout the period of constitutional review
(ii) Setting up a caretaker government which is fully representative
and competent to govern. Such caretaker government would:
(a) Pass the interim constitutional reforms negotiated by
the multi-sectoral forum
(b) Implement the transitional justice programme
(c) Implement the multi-sectoral forum’s interim democratic
reforms agenda
(d) Implement the multi-sectoral forum’s economic recovery
programme
(e) Implement and safeguard the constitutional review process
negotiated by the multisectoral forum.
(iii) Implementing the interim democratic reforms programme
(iv) Implementing an interim economic and social recovery
programme
(v) Creating a new constitution
(vi) Ratifying the new constitution and inaugurating a new
democratic order.
Although the media sensationalised the NCEC’s Action
Plan by stating that the NCEC had called for a military government,18
NCEC’s proposals for breaking Kenya’s political
stalemate in 1999 were perhaps the most well thought out.
If implemented, the proposals had the potential of securing
Kenya’s democratic transition.
SECTION FIVE: CONCLUSION: EMERGING ISSUES IN CONSTITUTIONAL
DEVELOPMENT IN 1999
Several important themes or issues emerge from the 1999 survey
of constitutional development in Kenya. The government felt
it was in a strong position to reverse citizen gains of 1997
and 1998 secured through passage of the Inter Parties Parliamentary
Group reforms19 and the Constitution of Kenya Review Commission
(Amendment) Act, 1998. Increasingly government adopted a lukewarm
attitude towards the implementation of the IPPG reforms. Further
government demonstrated it had no interest in implementing
the 1998 law to pave way for bona fide constitutional review.
Government sought to replace the negotiated people driven
process of constitutional review with a parliamentary driven
one captured by KANU. Government in 1999 employed every trick
to stall the momentum of constitutional reform. The objective,
as had been the case since 1990, was to delay the onset of
constitution making, thereby ensuring the continuation of
a one party inspired constitution within a multiparty era.
1999 ended on a sad note for constitutional development in
Kenya because the government had by the end of the year confined
constitutional debate at the level of process, not content.
Thus 1999 closed the decade of the 90s by confirming that
Kenya’s ruling elite had never embraced broad based
constitution making. Indeed all along the government had preferred
and advocated for constitutional amendments, not overhaul.
The executive also continued to show it lacked fidelity to
constitutionalism. A good example was the president’s
refusal to appoint a vice president when the language of the
constitution on the appointment of the vice president is mandatory.
KANU showed clearly that it was no respecter of negotiations
because when it suited her, she was ready to reverse the Constitution
of Kenya Review Commission (Amendment) Act, 1998 agreed in
Bomas and Safari Park negotiations. This characteristic of
KANU makes future negotiations problematic since KANU has
demonstrated that it will renege on agreements whenever it
suits her.
However, it was also clear that if KANU is interested for
personal gain in any constitutional changes, it will support
them. This happened in relation to the constitutional establishment
of the parliamentary service commission.
Critically, in 1999, it was also demonstrated that Kenya’s
citizenry and generally the secular and religious civil society
are significantly interested in participating in constitutional
and democratic rebirth. The question of constitutional re-engineering
is no longer a concern of only the political elite.
Even grassroot populations are involved in activism geared
at expanding their constitutional gains and getting a foothold
in a people driven process of constitution making. At the
close of the year, two competing processes of constitution
making, a parliamentary driven process, and a people driven
process led by the religious sector, were in the process of
being established. Moi and KANU had not therefore won a victory
over Kenyans on the way the constitution would be written.
The stage is set for further contest between the people and
the dictatorship in 2000 on who will say the last word on
constitution -making. Fortunately history reveals that ultimately
the people must triumph.
Annual Report on constitutional development written for Kituo
Cha Katiba: East African Centre for Constitutional Development,
Kampala, Uganda.
Associate Professor of Law, University of Nairobi, Kenya.
1. As amended by the Constitution of Kenya Review
Commission (Amendment) Act, 1998, 38:42
2. For information in this section I relied on Kivutha Kibwana
(with assistance from Jelvas Musau and Antony Munene) “KENYA”
in Christof Heyns (Ed.) Human Rights Law in Africa 1997, The
Hague, London, Boston, 1999:180 - 185.
3. As amended by the Constitution of Kenya Review Commission
(Amendment) Act, 1998.
4. See the Daily Nation January - December 1999 for all the
factual accounts in this segment.
5. Ibid, February 4 at 2.
6. See Generally Kivutha Kibwana, Weaknesses in the Constitution
of Kenya Review Act, 1997, Centre for Law and Research International,
Mimeo, March 1999.
7. Ibid.
8. See Republic of Kenya, National Assembly Eight Parliament
- Fourth Session, Report of the parliamentary Select Committee
Reviewing the Constitution of Kenya Review Act, 1997, Nairobi
April 2000 at 1 - 2.
9. Ibid at 1.
10 . See the Parliamentary Service Commission Bill,
1999. See also Daily Nation, November 12 at 1.
11. Daily Nation, February 10 at 1.
12. Ibid, February 24 at 1.
13. Ibid, September 29 at 1
14 . Ibid, September 14 at 1.
15. See NCEC, Katiba Mpya - Maisha Mapya: A vision for National
Renewal, Nairobi., NCEC, 1999
16. Ibid at 17.
17. The rest of this account is closely based on Ibid 17 -
35
18. Daily Nation, November 8 at 1.
19. See The Constitution of Kenya (Amendment) Act,1997 and
the Statute Law (Repeals and Miscellaneous Amendments) Act,
1997 Kenya Gazette Supplement No. 70 (Acts No. 7) at 843 -
913.
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