2.

THE STATE OF CONSTITUTIONAL DEVELOPMENT IN KENYA

Wanza Kioko[i]

INTRODUCTION

This report concerns itself with Constitutional Developments  that took place in Kenya during the year 2000.  The historical context of such developments is that the country has been going through constitutional reforms intensely since 1991.  1997 was a particularly active year and any developments since that time have had the effect of either building on or eroding the 1997 gains.  In this way, 1997 marked a milestone in the country’s constitutional history. The reforms passed by the Inter-Parliamentary Parties Group ((IPPG) were the genesis of the review process now underway. It is trite to conclude that although there were several  positive constitutional developments during the year, there have also been major erosions, reversals and general developments that undermine the struggle for progressive constitutionalism in Kenya.  The conduct of government mocked the constitutional review process through which Kenyans hoped to bring about a new political and moral order.  Understanding this process is central to any analysis of constitutional developments in the year, although the report considers other issues and frontiers of constitutional development.  

Another major conclusion of this report is that the attitude of the ruling elite to the constitution as an instrument of perpetuating and maintaining power, has not changed. This attitude has informed constitutional amendments in this country since independence. To quote Prof. Yash Ghai,  “The constitution in practice is not seen as an empire above the political struggle, but as a weapon in that struggle which can be used and altered in order to gain temporary and passing advantages over one’s political opponents.’[ii] It is an unfortunate view of the constitution because it continues to frustrate the dawn of a new Kenya. To make matters worse, it is the attitude of those that still want to scuttle the constitutional reform process.

The current need is to have the constitution facilitate the Moi succession.  For instance, in February 2000, cabinet minister Shariff Nassir called for a constitutional amendment to bar Vice President George Saitoti from succeeding Moi for the interim period of 90 days before the country is able to elect a new leader.[iii] Similar calls have been made to amend the constitution to enable President Moi to rule beyond 2002 when his constitutional term comes to an end.[iv] This is to enable the forces sympathetic to the ruling Kenya African National Union (KANU) benefit from the new constitutional framework. 

The report notes with great concern the robust growth of private ‘armies’ (organized political gangs) during the year as they impacted negatively on the democratisation process and more specifically on political organization. Ethnic clashes and a general rise in violence in society aggravated their effect on democratisation and political organization.  Their long-term effect, for example, as harbingers of state failure can not be credibly assessed now.

On political organization, this reports finds that Kenya’s political parties have either witnessed zero or negative growth in 2000. Most of them are ethnic groups tightly controlled by small groups of persons. They are low on social ideology and high on ethnic chauvinism. They suffer serious intra-party wrangling and have not held any internal party elections.  There is no internal democracy.  The country’s democracy would benefit immensely from properly functioning political parties.  Ethnic chauvinism and lack of party democracy robs the electoral process of a vitality that would propel Kenya’s democracy to greater heights.

There is continued vibrancy within the civil society, though fragmented, which limits their impact.  The report cautions that there is great temptation to co-opt civil society by political parties.   The civil society has a vital role to play in advancing constitutionalism in Kenya and should, therefore, resist attempts to be co-opted.   Civil Society must remain distinct from political parties for the simple reason that political parties will always focus on capturing state power.  They have an understandable knack to subordinate any higher ideals to the need for electoral victory.

On corruption, the Kenya Anti-Corruption Authority (KACA) was effectively abolished by the Gachiengo ruling.[v] There have been calls to establish a revamped KACA. This reports finds the re-establishment of KACA unnecessary with the observation that Kenya does not lack the institutional infrastructure to battle corruption. That KACA was a duplication of the mandate vested in the Attorney General’s office and an unnecessary proliferation of institutions.   What these institutions need is a re-orientation towards more prevention instead of prosecutorial duties.  What is needed is the political will to fight corruption.  It suggests that Kenyans look for a political solution to the struggle against corruption.

Since the establishment of the Parliamentary Service Commission, Parliament has attempted to assert itself.  In the year 2000, members brought several motions and bills before the house in furtherance of human rights and democracy.  However, until the political parties organize effectively, parliament will not serve as an effective check on the excesses of the executive.

The report notes a failure by government to match political practice with the reality of a nation negotiating a new constitutional order.  The government continued to violate key constitutional freedoms like those of assembly and association breaking recently passed pro-democracy laws. This shows that the country is yet to embrace the culture of constitutionalism. 

Constitutionalism is a mode of state governance that belongs to the liberal democracy model.  It is a system that ideally should guarantee government accountability to its people in very basic terms by ensuring periodic free and fair elections in a multiparty system and to limit the powers of the organs of state through a system of checks and balances and the separation of powers.  This must include an independent judiciary.  The Judiciary ensures that the government governs within the rule of law.[vi] Constitutionalism is about limited government. The basic question is whether the Constitution places sufficient limitations on state power; whether public affairs are conducted according to pre-determined rules; whether the manner in which the country is run is the antithesis of despotic power, autocratic and arbitrary rule. For it is trite to note that  constitutions can create dictatorships.[vii]

In answering the question whether there were any constitutional developments in 2000, the report will use constitutionalism as the framework of analysis. It is noted that in terms of specific steps to achieve greater democracy, the year might not have recorded many developments. If anything, one may say the country marked time or witnessed major reversals on earlier developments like the hard won freedoms under the Inter Parliamentary Party Group (IPPG) package.[viii] What should be noted optimistically is the fact that the country engaged in intense constitutional debate whose gains may not be tabulated because they are not tangible.

THE REVIEW PROCESS

The process stalled for much of the year.  This was occasioned by the stalemate that followed the establishment of the Parliamentary Select Committee (popularly known as the Raila Group). The group proposed the enactment of a law that would cure the problems that emerged from the Safari Park Process.  The Safari Park process had been put in place by the Constitution of Kenyan Review Act of 1997, as amended in 1998.  The proposals of the group were later enacted into law in the Constitution of Kenya Review Act 2000. The 2000 Act watered down the key strengths of the Safari Park process.  

The Safari Park Process was strong on people’s participation. It provided for district forums whose constitution was going to involve many people since all locations in Kenya would have sent three delegates - one woman, one youth and one other person - to the District forum. It was going to involve the clergy of the district and local members of parliament and councillors. The District forums had a strong civic education and mobilization mandate. The National Forum was also very strongly pro-people since all stakeholders identified in the Act were to be represented. Each district was to send one woman, one youth and one other person to the national forum. The review commission under the Act also comprised of nominees by the stakeholders named in the Act.  

Under the 2000 Act, instead, the Parliamentary Select Committee made itself the appointing authority whilst giving the President the power of veto. District forums were scrapped and replaced with Constituency Forums whose manner of constitution is unclear under the Act. This was seen as fertile ground for rigging the process. The National Constitutional Conference was ‘slender on power’ since its resolutions had no binding effect and could therefore be vetoed by parliament.[ix] The Ufungamano Group found this unacceptable and constituted a parallel process. Each of the two groups threatened to carry on with the process to the exclusion of the other. 

The latter months of 2000 were dominated by the Ghai-led negotiations to merge the two parallel processes. The tussle for the control of the processes continued. It was characterized by violence either by police or private gangs. The President in April 2000 declared that he would call in the youth to help if anyone organized mass action against the Parliamentary Select Committee.[x]  This was a continuation of the private gangs such as Jeshi la Mzee that have continued to characterize the negotiations over constitutional reform since 1997. A reluctant merger was achieved in early 2001. Whether this was positive or negative is not within the timeframe of this report.

All these events were taking place within the backdrop of the debilitating economic situation that has prevailed in the country to date.   It was also a time of great political suspicion fueled by the new alliances forming around the Moi succession and the coming 2002 general elections. Demands were still being made that Moi state unequivocally that he was going to  stand down when the time comes in the midst of mixed signals sent by the president about his retirement.  President Moi has said more than once that he cannot see a worthy successor amongst the country’s political leaders. On one occasion he said that it was up to Kenyans to decide whether his time was up or not.[xi] The president is ambivalent about this constitutional question and it would be crucial for him to indicate that he is leaving.

OTHER SITES AND ISSUES OF CONTISTUTIONAL DEVELOPMENT

PARLIAMENT

Historically Kenya’s parliament has been subordinated to the executive. [xii]  Since independence, the Kenyan government has been characterised by a very strong executive with an extremely powerful president at the helm.  The year has witnessed attempts to further reclaim parliament’s independence.  These attempts were through mainly private members' motions, the most crucial being the attempt to build on the establishment of a Parliamentary Service Commission (PSC) in November 1999.

Some of the motions tabled before the house  included the following:

1.      A motion to abolish the death penalty was defeated in the house in September 2000. The government did not support it.

2.      A motion for the enactment of an affirmative action law.[xiii]

3.      A motion for the enactment of a Freedom of Information law.

4.      A motion for the establishment of a Truth and Reconciliation Commission.

5.      A motion to allow parliament to control its calendar. This was to strengthen the already established Parliamentary Service Commission.  In November 1999 a law amending the constitution to establish the PSC received presidential assent. The new section 45B of the constitution establishes the PSC. This motion followed key proposals by a Parliamentarians Seminar  which proposed amongst other things:

·  That the Power over the Parliamentary Calendar be removed from the President and re-vest in the PSC.

·   To take over from the AG the powers of drafting new laws and prosecuting the powers of prosecuting people named and criticized in parliamentary watchdog committees.

·  Prepare all financial estimates for approval by the house and establish a fund into which such committees shall be paid.

·  The PSC to establish a tender board to deal with government contracts.[xiv]

If the proposed changes concerning control over the parliamentary calendar are finally passed, they would have removed a key power of the President to prorogue and dissolve parliament, a power that is critical to the subjugation of the legislature to the executive. This arrangement violates both the principle of separation of powers and that of checks and balances. For example, parliament lost a bid in December to override the President over the proroguing of parliament. The House wanted to discuss the entrenchment of the Constitution of Kenya Review Commission into the Constitution so as to cushion it from a KACA-like assault, which remains a potential weapon of those against the review process.[xv]

Parliament is yet to get a firm grip over financial issues. The reports of the Parliamentary Investment Committee (PIC) and the Parliamentary Accounts Committee (PAC) were ignored yet again.  These two committees are the only opportunity parliament gets of checking government expenditure which is, a key constitutional mandate for parliaments. This is the case because the abolition of the Estimates Committee by the IPPG reforms package meant that parliament only approves government expenditure after budgeting and with the help of very little information and therefore uninformed debate. It is also an opportunity to rein in governmental corruption. This is only possible if their reports are acted upon. Other parliamentary committees have however demonstrated a new assertiveness by summoning government functionaries to appear before them to explain their actions or omissions. Parliament is still far from being an independent organ of government.

Parliament as an arena for democratisation.

In the year 2000, parliament served more as an instrument of marginalization in the democratisation process than an instrument of change. By enacting the Constitution of Kenya Review Commission Act 2000, which, as explained above, further marginalised the Kenyan people from the centre of the review process, parliament took the country a step backwards.  It significantly helped to erode a robust culture of broader participation in political decision-making that had begun to characterize the negotiations for a new constitutional order.

Parliament will not aid the democratisation process effectively because of structural limitations. Despite a multiparty legislature, the manner in which Kenya’s political parties are organized has meant that policy formulation and agenda setting is still done under the shadow of political patronage. Patronage undermines the independence of the legislature for, if individual legislators are not independent and free from the shackles of a client-patron based political system, parliament cannot be independent.  Patronage has survived a decade of multi-party politics because the people do not own our parties.  They are financed by individuals who use them as personal tools to power or actually sell them to those that need political vehicles to power.  This has meant that the party membership does not determine its leadership. The financier is the leader, or the financiers determine the party leader.

The resource deficiency is coupled with the ethnization of Kenya’s multi-party politics where the elite style themselves as the big men/women of a tribe, form a political party as the vehicle to power of the sons and daughters of the tribe and also for negotiating with other tribal elite. This has meant that for one to win elections in certain regions, one has to be backed by the big man/woman of the ‘tribal party’. It is therefore difficult for members of parliament to take independent positions and the party establishments do not have to capitulate and negotiate with them.  One is, therefore, able to be a ‘rebel’ in one party, join another and still find his/her independence severely limited. The party establishments could be seen as one level of political operation where party distinctions are quite blurred. The scenario is such that one can easily ‘pocket’ the legislature if one offered adequate incentive (monetary or otherwise) to the tribal elite or the party financiers.

The above analysis, if correct, points to several possibilities:

1.      Parliament can easily become a conveyor belt in which only the interests of the elite are taken care of through legislation thereby subjecting Kenya to a tyranny by the legislature. The current series of increments in the allowances of legislators has had some commentators warn of a possible parliamentary dictatorship.[xvi]

2.      There is a possibility of a multi-party legislature with no opposition. Kenya could return to having a one-party legislature.  The one party parliament is another way of emasculating the legislature.

These are dangers, though appearing farfetched, that every democracy must want to protect itself from. For parliament to be independent and play an effective role in Kenya’s democratisation process without the threat of a return to authoritarianism, Kenya’s political parties must organize on a different set of ethos.  For this to happen, the government needs to reduce the cost of organization significantly by allowing the greater formation of civic groups and not fettering them by either demanding registration, where it is unnecessary, or denying them registration, where it is demanded, of such groups. One of the reasons why the parties have quickly embraced the tribe as the unit of organization is that the tribe is cheap to target and mobilize because it already exists. This is so in the absence of civic groups, whose work revolves around ideas, that forms the vision of the party and therefore would easily form the substrata for most of the parties.  This state of the organizational life of Kenyans is due to years of repression during the one-party era. In a multi-party era this ought to change.

The parties also need state financing. Other countries have worked formulae for financing political parties, the most common being in proportion to a party’s parliamentary presence.  Ultimately, Kenyans have to fund their political parties. State funding can only be supplementary. Reliance on state funding would still mean that our parties will be grossly under-resourced and will therefore continue taking shortcuts at political organization. Further, parliamentarians need more support to set up secretariats and research units that would enable them to be more effective.

THE EXECUTIVE

The executive branch of the government pervades Kenyan political life.  One key pillar of the executive is the provincial administration. This is a colonial heritage which, as has been argued, helps to perpetuate dictatorship and helps in the rigging of elections. The provincial administration has been criticized for ruling Kenya's rural areas with an iron fist.  Proposals have been made that the provincial administration be abolished.  In March 2000, the permanent secretary in the Office of the President, Mr. Zachary Cheruiyot, announced that:

·        The office of the Assistant Chief would be abolished and that the phase out would start in July 2000.

·        Duties of District Commissioners (DCs) would be trimmed.

·        DCs would not collect any land board fees or other moneys.

·        The office of the District Officer (DO) would be abolished.

·        DCs will be appointed on the basis of their ability to resolve conflict.

·        Chiefs and Assistant chiefs would not collect public moneys.[xvii]

These were hailed as long overdue changes though some argued that nothing short of abolishing the whole provincial administration would be satisfactory.  The decision was to be quickly reversed by the Chief Executive, President Moi, when he announced that assistant chiefs and chiefs would retain their jobs. Instead of phasing them out, he proposed that they be trained to cope with modern Kenya.[xviii]  He later said the number of District Officers would be reduced.[xix] This reversal was most unfortunate because Kenyans have been demanding some degree of local autonomy for quite some time.  This is an issue that the current review process will have to address, in conjunction with the question of devolution of power.

THE JUDICIARY

Perhaps, one of the rulings of the High Court that will be long remembered after 2000 is the case of  Stephen Mwai Gachiengo and Albert Muthee Kahuria v Republic.[xx]   The High Court sitting as a Constitutional Court held that the Kenya Anti-Corruption Authority (KACA), as then constituted, was unconstitutional and therefore void in law.  The facts of the case were that KACA instituted legal proceedings against two senior civil servants in which the two were charged with abuse of office.

The two made a constitutional application asking the Constitutional Court to determine:

-          Whether it was unconstitutional and contrary to the principle of separation of powers for KACA to be headed by a high court judge;

-          Whether the fact that the KACA director was a judge compromised the accused person’s right to  a fair trial  before an impartial court under section 77(1) of the constitution;

-          Whether the Attorney-General’s  consent to the prosecution is valid under the constitution;

-          Whether the Act establishing KACA violated section 26 of the Constitution, which, according to the applicants, vests the power to prosecute solely in the Attorney General’s office.

The court found that the fact that a judge headed KACA violated the principle of the separation of powers but this did not in any way prejudice the accused persons’ right to a fair trial.  It also found that the Attorney General’s consent to the prosecution was invalid under the constitution and that the provisions of the Prevention of Corruption Act establishing KACA were unconstitutional as they purported to appropriate the power of the Attorney General to prosecute.

The ruling was a major setback not only in the war against corruption (to be discussed below) but also constitutionally. This was a clear case of the judiciary disregarding clear provisions of the constitution. The court’s finding that the Attorney General is the only one vested with the power to prosecute is constitutionally delinquent.     A reading of section 26(6) clearly shows that the constitution clearly envisaged that any body or person can prosecute.   The section provides:

“ The powers conferred on the Attorney-General by paragraphs (b) and (c) of subsection (3) shall be vested in him to the exclusion of an other authority:

Provided that where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority and with the leave of the court. (Emphasis added.)

It is clear that section 26 envisaged prosecution by other authorities and persons in addition to the AG.  It is unfortunate that courts can ignore clear constitutional provisions. This poses the danger that the text of the constitution in future may be ignored to serve certain interests. This is to say that it might not be of any consequence how beautifully worded the constitution the review process may yield. The courts may still disregard the constitution.

THE WAR ON CORRUPTION

Corruption fetters democracy because it disenfranchises citizens and affects the efficiency of political organization.   It hinders the capacity of democratic institutions to be of greater service to society and impedes institutional accountability.  The Kenyan government is not as a whole accountable to the Kenyan people.  Ten years of multi-party democracy have failed to yield accountability for the Kenyan people.

Corruption was yet again a vexing national issue in this year. The Gachiengo ruling effectively abolished KACA. Though there has been widespread moaning of the demise over the Kenya Anti-Corruption Authority, this paper takes the view that KACA is not necessary in the fight against corruption. Indeed, it is an indication of the unnecessary proliferation of institutions. It is also a duplication of the mandate vested in the Attorney General’s office. What lacks in Kenya are not the institutions to fight corruption but rather the lack of political will to battle corruption.  For years PIC and PAC have generated volumes of reports detailing corrupt activities and recommending action against individuals named in those reports. Nothing happens. The Auditor and Controller General has his own volumes detailing governmental corruption. The Attorney General does not prosecute and he is still very secure in his job.  Which other institutions that is more powerful than the Attorney General’s office does Kenya need to fight corruption?   

The other problem with the war on corruption in Kenya is that most campaigners and commentators are obsessed with prosecutions and do not think about curative measures.  KACA was cast, first and foremost, as a prosecutorial institution and therefore many thought that its demise was a very sad thing since no prosecutions would take place. Litigation takes a very long time in the Kenyan courts. The Goldenberg case is instructive here.  This case has been before the courts since 1994.[xxi] We cannot fight corruption through the courts.  Kenya’s judicial machine is very slow due to many reasons, but specific to corruption is the fact that the beneficiaries of the status quo do not want to have cases related to corruption solved.

In 2000, some high public officials were named by the Public Investments Committee, a parliamentary watchdog committee, as unfit to hold office.[xxii] To date, these people are in government, one cabinet minister amongst them, Kipng’eno arap Ng’eny now facing a fraud case where he is accused of defrauding the now defunct Kenya Posts and Telecommunications Corporation of about K. Shs.186 million.

In May 2000, the Parliamentary Anti-Corruption Committee released its report on Corruption in Kenya containing most notably, the infamous List of Shame. The government has not to date prosecuted or even sacked those named in the List of Shame.  The List of shame contained names of prominent Kenyans who have persistently been implicated in corrupt activities in government. Parliament voted against the inclusion of the List of Shame in the Committee Report on which the now defunct KACA was to be obligated to act upon. [xxiii]  It has been argued that the failure to adopt the List of Shame was the legally correct route to take since those named in the report hadn’t been found guilty by a court of law, and second, that they had not had a chance to defend themselves.  Why were they then not prosecuted, which would have enabled them to prove their innocence?

Over  the year, no significant developments were made towards battling corruption. It has been mainly a game of musical chairs, played largely to entertain the international donor community. The country must refocus national energies towards preventive measures like declaration of wealth by public officials.  The right to information ought to become a pillar of our democracy so that watchdogs, such as the media and the parliament, become more effective with greater access to governmental information.  That is why the passing by parliament of the motion to enact a Freedom of Information Law is laudable and ought to be followed to its logical conclusion. It should be enacted into law to buttress the constitutional freedom of expression that would remain a half right if there were no right to information. 

NATIONAL SECURITY, POLITICAL VIOLENCE AND CRIME

During the year, most Kenyans must have continued to fear for both their personal and national security. Lack of security has serious implications on the government’s duty to protect the right to life. In Kenya, insecurity is also used to control political organization and expression, both very key constitutional issues. This is done by politicians both in government and opposition with government complicity.

The government seems to have acquiesced in the privatization of violence.  This is best illustrated by the fact that the authors of ethnic clashes have gone unpunished since 1992. In 2000, fresh flare-ups of ethnic violence occurred in Laikipia district. Ten people were reported dead.[xxiv]  In the same vein, private gangs attack groups or persons whose political ideas they do not share and are therefore opposed to such ideas. This prevents political mobilisation around issues difficult.  Citizens’ participation is limited and many political decisions by citizens are by coercion or intimidation. 

A by-election characterised by electoral violence took place in Kwanza in April to replace the late Kwanza MP, George Kapten.[xxv] Negotiations around the review process were marred by violence. For example, just about the time the Parliamentary Select Committee and the Ufungamano Group went parallel, there was a lot of street violence which largely targeted opposition politicians allied to the Ufungamano group.  An example is an attack on the opposition MPs James Orengo and Shem Ochoudho outside parliament allegedly because they did not support the Raila Group. [xxvi]   Another occurrence is that a Provincial Convention Assembly meeting of the NCEC (National Convention Executive Committee) for Nyanza province was violently dispersed by thugs alleged to be allied to Raila Odinga.

The crime rate in Kenya is very high, and law enforcement agencies have failed to get a handle on it. The people have lost confidence in these government institutions and are now taking the law into their hands. Cases of mob justice are high. Gangs operate overtly and with great confidence. In April, the Mungiki sect attacked Nyahururu police station to free some of their colleagues who had been arrested by the police. The raid involved 3000 sect members.[xxvii] In September, Mungiki sect members again raided the police station in Muranga where they stole a gun.[xxviii] The underworld has developed new confidence, partly blamed on corruption and the low morale in the police force. Some police officers are alleged to belong to crime gangs. On February 26,^th three people were executed by a gang on a soccer pitch. [xxix]  On March 2^nd 2000, some 500 villagers stormed a police station in Kendu Bay demanding that a robbery suspect be handed over to them to administer mob justice.  They accused the police of protecting criminals.[xxx]

This trend is indicative of state failure.  It is important that  law enforcement agencies are seen and perceived by the Kenyan people as serious about law enforcement. They must not be seen to apply the law selectively. The cases of violence involving politicians are the ones that send negative signals to Kenyans. In short, they imply that :

1.      Violence, though illegal, is a legitimate form of negotiating for goods in society, and

2.      One can get away with violence since the law enforcement machinery is impotent or unwilling to act.

The rise in violence has greatly demobilized Kenyans thereby impeding significantly their ability to organize politically.   Political repression is taking a new form where violence is meted out by private armies that seem to enjoy state protection or are backed by powerful politicians. We are witnessing a reinvention of the violent state; this time round through privatized violence.

THE FREEDOM OF ASSOCIATION, ASSEMBLY AND EXPRESSION

The freedom of association, assembly and expression was most flagrantly violated in this year,  undoing gains that were achieved through the IPPG reforms package.  Under the IPPG reforms, one only needs to give a three-day notice to police of an intended meeting for the purposes of ensuring security for the meeting. The police do not have the power to cancel a meeting or issue a license except that they may say 'no' to a venue where another such meeting is scheduled to take place for security reasons.

From August onwards, the government persistently and consistently dispersed violently Muugano wa Mageuzi (Alliance for Change) rallies.[xxxi] This was done on the President’s express directive to the police to the effect that Muugano wa Mageuzi must not be allowed to take place.[xxxii]

The Press

In January 2000, Citizen Radio was ordered by the Communications Commission of Kenya (CCK) to stop broadcasting out of Nairobi.  It was the first radio station to broadcast out of Nairobi.  The CCK switched off transmissions to Nyamebene, Nyahururu, Nanyuki and Rongai. Citizen Radio remained on in Nairobi.[xxxiii]   Royal Media, the Citizen Radio proprietor, has sued the government and has a number of cases pending in court.  This harassment by the State of Citizen Radio is in tandem with an unstated government policy of liberalizing the media (especially electronic media) in urban centres (mostly in Nairobi).  

The reasoning behind this policy is suspected to be that liberalizing the media in Nairobi does no harm to the ruling party’s stranglehold on rural Kenya through propaganda transmitted via the Kenya Broadcasting Corporation (KBC). Liberalizing the media in Nairobi and other major urban centres is like preaching to the converted. The government is, however, very keen on fencing off rural Kenya to protect it from ‘outside’ influence. Most citizens in rural Kenya have no other source of information other than what they receive through KBC. This is particularly undermining of multi-party politics since opposition parties have no way of reaching the electorate. They are given negligible coverage by KBC despite the fact that the IPPG reforms package made it a policy that all parties should be given equal coverage by KBC.

In August 2000, President Moi ordered the Attorney General and the Minister for Communication to outlaw radio broadcasts in vernacular. This was in reference to the launch of the now very popular radio station, Kameme FM.[xxxiv] It mostly broadcasts in Kikuyu. Though the radio station was eventually allowed to operate, the ban issued by the president for fear that radio stations that broadcast in vernacular will fan tribalism, is indicative of the nervousness with which the government has gone about liberalizing the media.  This illustrates that the  government is still fearful of a truly open and democratic society.

The Right to Information

Kenyans, through a civil society-led campaign, have been demanding that the constitution provide for a Right to Information.[xxxv] This should be made operative by a Freedom of Information Act which would outline the enforcement procedure marking a departure from the history of rights enforcement in Kenya.  The lack of enforcement mechanisms has made Kenya’s bill of rights inoperative for most of its history.[xxxvi] This demand has been based on the belief that government secrecy is the antithesis to democracy. There are those who argue that the right to information is part of the constitutional freedom of expression. The demand for information was taken a step further in March 2000 when the Law Society of Kenya sued the Kenyan government asking for an order that the government releases the Akiwumi Commission Report on Land Clashes.[xxxvii]

This is not the first commission to have its report not published or acted upon. There are many others. The view has been that many of these commissions are supposed to achieve delay, buy into national amnesia and thereby cool the political temperature without the government taking any remedial action. If these reports were published in good time, the government would have had to explain the issues that were supposed to be inquired into, thereby ensuring government accountability to the Kenyan people.

CONCLUSION

The constitutional review process was central to analyzing any constitutional developments that took place in the year 2000.  No significant progress was made with regard to constitutional reforms during the year. Political bickering over the 2000 Act and the protracted stalemate that this caused dominated much of the year.  Late in the year, negotiations for a merger that was to happen in early 2001 dominated the process.  On this point alone, the conclusion that no developments worth the name happened and therefore the country only marked time is very attractive. The point to note, however, is that the country engaged in a very intense debate about the mechanics of the process implied by a conceptualization of constitution-making that has the engendering of democracy as its primary objective. This was a positive development.

It follows that whether there were any constitutional developments in 2000 is a question that is likely to be controversial.  The better way of analyzing the year is through asking the same question differently. The question to answer is whether we have made steps towards achieving the political aspirations of the Kenyan people. The Kenyan people aspire to organize their politics and economy in a more efficient and socially stable way. Though it is important to ask how far Kenyans are from having a new constitution, the more pertinent question to ask is how far away from constitutionalism we are, as opposed to the promulgation of a new constitution and new laws. The social and political experience of the Kenyan people should count more in assessing the country’s constitutional progress than the amount of legislation passed by the Kenyan parliament.

The report has recorded government conduct and that of other political players, which contrasts starkly with the reality of negotiating a new constitutional order. A recurring demand of Kenyans has been that the government conducts business in a manner that indicates its commitment to the rule of law thereby creating a political environment in which the Kenyan people can optimally participate in the review process. This demand has not been met especially with regard to security and political violence.

The report concludes that gains are few partly because the pro-democracy forces were highly fragmented with no unity of vision. Second, is Moi’s dispersal politics based on the age-old principle of divide and rule. The opposition has been ethnically divided and therefore does not present an organized force to appropriate any constitutional gains that would accrue through the different frontiers of the struggle for constitutional reform in Kenya.

***

SELECT BIBLIOGRAPHY.

Ghai, Y.P. and McAuslan (1970) Public Law and Political Change in Kenya (Nairobi/New York/London: OUP.)

Held, D., (2000) Models of Democracy (Cambridge/Oxford, U.K: Polity Press.)

Nwabueze B.O, (1973) Constitutionalism in Emergent States (London: Hurst & co.)

Nwabueze, B. O., (1974) Presidentialism in Commonwealth Africa (New York: St. Martin’s)

Oloka-Onyango,  J.,  (Ed.) (2001) Constitutionalism in Africa; Creating Opportunities, Facing New Challenges, (Kampala: Fountain Publishers. )

Steiner, H.J., and Alston, P., (1996) International Human Rights Law in Context; Law, Politics and Morals (Oxford: Clarendon Press.)

ENDNOTES