CONSTITUTIONAL REVIEW PROCESS IN KENYA
REPORT OF A FACT-FINDING MISSION OF THE KITUO CHA KATIBA ON THE PROGRESS OF THE CONSTITUTIONAL REVIEW EXERCISE IN KENYA
The Fact-Finding Mission Visited Kenya between 19th and 22nd September, 2001 and again between 26th and 29th February, 2002
MISSION OF KITUO CHA KATIBA
Kituo Cha Katiba : The East African Centre for Constitutional Development (KCK) was established in 1997 as an East African institution based in Kampala, Uganda. Its mission is the promotion of multi and interdisciplinary communication, dialogue and action on constitution making and democratic governance in the East African region. Kituo cha Katiba provides mechanisms and a neutral forum for activists, academicians, politicians and the people of the region to engage in dialogue, self-reflection and critical debate over a wide variety of issues that are of critical and contemporary relevance. The ultimate aim of the organisation is to promote the active participation of civil society in good governance and to inculcate a culture of constitutionalism where the constitution is a living document that reflects the wishes, aspirations and needs of the common people.
FACT-FINDING MISSION OF THE KITUO CHA KATIBA ON THE PROGRESS OF THE CONSTITUTIONAL REVIEW IN KENYA
Contents
CHAPTER ONE: A BACKGROUND NOTE
1.0 Introduction
1.1 Initiating the Process
1.2 Composition of the Fact-Finding Mission
1.3 Persons Interviewed by the Mission
1.4 Persons Earmarked but Could not Meet the Mission
CHAPTER TWO: CONSTITUTIONAL DEVELOPMENT IN EAST AFRICA
2.0 Background:
2.1 Independence Constitutions
2.2 Kenya
2.3 Tanzania
2.4 Uganda
2.4.1 Independence Constitution
CHAPTER THREE: THE CONTEMPORARY CASE OF CONSTITUTIONAL REFORM IN KENYA
3.0 The Fact-Finding Mission
3.1 Issues Raised
3.2 Freedom of Expression
3.3 Security Concerns
3.4 Fears of Various Stake-holders and Suspiciousness among Parties and Stakeholders
3.5 Lack of Political Will on the part of the Government
3.6 Main Problems Identified by stakeholders
3.6.1 Ethnicity: A process that has derailed the process before – fears thereof
3.6.1.1 Nepotism and Corruption
3.6.1.2 Marginalisation of Minorities
3.6.1.3 Ethnic Cleansing – Tribal Clashes
3.6.2 Land
3.6.3 Democracy and Peace
3.6.4 Independence of the Judiciary
3.7 The Gender Issue in the Constitutional Process
3.8 The Role of the Donors – the Donor Factor
3.9 The Genesis of the Current Constitutional Review Process
3.10 The “Wanjikus” of Kenya and the Constitutional Review Process
CHAPTER FOUR: THE CONSTITUTION OF KENYA REVIEW COMMISSION
4.0 Introduction
4.1 Establishment and Composition
4.2 Legitimacy and, Legality and Securing the Review Process
4.3 Working Environment of the Commission
4.4 Timing to the Constitutional Review Process
CHAPTER FIVE: MAIN FACTORS AFFECTING THE CONSTITUTIONAL REVIEW PROCESS
5.0 Background
5.1 Expressed Worries
5.2 The General Elections of 2002
5.3 The Issue of Succession
CHAPTER SIX: RECOMMENDATIONS OF THE MISSION
6.1 Recommendations to the Government of the Republic of Kenya
(a). Timing of the Constitutional Review Process
(b). Facilitation: Financial and Constitutional Guarantees
(c). Security
(d). Involvement of All Stakeholders
(e). Provision of Civic Education to the People by All
6.2 Recommendations to the Constitution of Kenya Review Commission
(a). Working as a Team
(b). End to Internal Squabbles
(c). Focus on the Task at Hand: Collecting Peoples’ Views
(d). Reaching the People and not Samples in Collecting Views
(e). Support other Groups to Undertake Civic Education
6.3 Recommendations to the Donor Community
6.4 Recommendations to the Kituo cha Katiba
CHAPTER SEVEN: GENERAL CONCLUSION
ANNEXTURE A: A Synopsis of Mission Interviews
ANNEXTURE B: Literature and Laws Available to the Mission
CHAPTER ONE
A BACKGROUND NOTE
1.0 Introduction
1.1 Initiating the Process
In early September, 2001 Kituo Cha Katiba (KCK) initiated a process of following up the ongoing constitutional review process in the Republic of Kenya. Being an East African institution mandated to inter alia, promote inter-disciplinary communication, dialogue and
action on constitution-making and good governance in the region, KCK was naturally concerned about the developments in Kenya. The struggle for increased democratisation which started back in 1991 was now showing some signs of life with the enactment of the constitutional review legislation and the appointment of the Constitution of Kenya Review Commission (CKRC) under the chairmanship of Prof. Yash Pal Ghai. It was thus
necessary to make a closer examination of the process in order to determine how KCK can contribute to this process.
1.2 Composition of the Fact-Finding Mission
It is with this aim in mind that KCK selected a team of five East Africans from Tanzania and Uganda, to come to Kenya and find the stage reached by the review process. The team was also to advice the Board of KCK on the best way to assist in the process. The very specific objectives of the fact-finding
mission were :
1. To encourage and support constitutional development in Kenya;
2. To enable critical actors in the ongoing process in the region to share experiences and learn from each other’s mistakes and to adopt the best practices from its sister countries.
3. To interview people from all walks of life and produce a report with proposals that can contribute positively to the on-going dialogue about the constitutional reform in Kenya.
The mission was composed of the following personalities:
1. Prof. Edward Frederick Ssempebwa : Chairperson of the Constitutional Review Commission of Uganda (2001-2002) – Mission Leader.
2. Ms. Margaret Sekaggya :Chairperson, Uganda Human Rights Commission.
3. Rev. Prof. John Mary Waliggo: Professor of History and Methodology at the Uganda Martyrs University, Nkozi and Commissioner, Uganda Human Rights Commission; former Secretary to the Uganda Constitution Commission, 1988-1994.
4. Prof. Chris Maina Peter: Professor of Law and Chairman of the Legal Aid Committee, University of Dar es Salaam, Tanzania.
5. Ms. Nayla Ahmed Sultan: Lawyer from Zanzibar and a Member of the Secretariat of the White Paper Constitutional Reform Committee of Tanzania.
6. Ms. Maria Nassali : Executive Director KCK
The Fact-finding Mission visited Kenya two times. First for a period of four days between 19th and 22nd September, 2001 and later for three working days between 27th and 29th February, 2002. During the two visits the Mission was able to interview various
stakeholders in the constitutional review process in the country.
1.3 Persons Interviewed by the Mission
The Mission met with several individuals from al walks of life in Kenyan society. Among those who met the Mission during the first visit were:
1. Dr. Adagala Kavesta – Commissioner, Constitution of Kenya Review Commission.
2. Ms. Ali-Aroni Abida – Vice-Chairman, Constitution of Kenya Review Commission.
3. Mr. Amolo Otiende, Secretary, International Commission of Jurists – Kenya
4. Hon. Anyang’ Nyong’o, MP and Chairperson of the Political Bureau of the Social Democratic Party (SDP).
5. Ms. Asiyo Phoebe – Commissioner, Constitution of Kenya Review Commission.
6. Pastor Ayonga Zablon F. – Commissioner, Constitution of Kenya Review Commission.
7. Ms. Baraza Nancy – Commissioner, Constitution of Kenya Review Commission.
8. Mr. Chiaji Akim, East African Youth Council.
9. Dr. Gitari Joseph, Programme Officer – Human Rights and Social Justice, Ford Foundation, Nairobi, Kenya.
10. Ms. Halungu Olende Rose, Maendeleo ya Wanawake.
11. Mr. Lithome Asmani Ibrahim – Commissioner, Constitution of Kenya Review Commission.
12. Ms. Kiragu Jane, Executive Director FIDA(K)
13. Prof. Kivutha Kibwana, Co-Convenor and Spokesperson, National Convention Executive Council (NCEC), Nairobi, Kenya.
14. Ms. Koome Martha, Advocate, Chairperson, FIDA – Kenya.
15. Mr. Maalim Farah, Chairman, Safina Party.
16. Dr. Maranga Charles – Commissioner, Constitution of Kenya Review Commission.
17. Mr. M’Chokera Ratanya Domisiano - Commissioner
18. Hon. Musikari Kombo, MP, Ford Kenya Party.
19. Dr. Mutunga Willy, Executive Director, Kenya Human Rights Commission and Member of the Board of the Kituo cha Katiba.
20. His Grace Mwana-Nzeki Raphael, Catholic Archbishop of Nairobi.
21. Mr. Nyaoga Mohamed, Advocate, Chairman, International Commission of Jurists - Kenya.
22. Mr. Nzamba Kitonga, Advocate, President, East Africa Law Society.
23. Ms. Obong’o Hellen, Kenya Women Political Caucus.
24. Dr. Oki Ooko Ombaka – Vice-Chairman, Constitution of Kenya Review Commission.
25. Prof. Okoth Ogendo – Commissioner and Chair of the Research Committee, Constitution of Kenya Review Commission.
26. Ms. Omamo Raychelle, Advocate, Chairperson of Law Society of Kenya
27. Mr. Omar Hassan, Kenya Youth Council and Student Leader.
28. Mr. Ombati Kepta, Chairperson, Kenya Youth Movement and Executive Officer of the National Convention Executive Council (NCEC), Nairobi, Kenya.
29. Hon. Orengo James, MP and Leader of Muungano wa Mageuzi (Movement for Change).
30. Hon Raila Odinga, MP, Minister of Energy and Leader of the National Development Party (NDP).
31. Dr. Tade Aina, Deputy Representative and Programme Officer - Governance and Civil Society, Ford Foundation, Nairobi, Kenya.
32. Prof. Wanjiru Kabira – Commissioner, Constitution of Kenya Review Commission.
33. Ms. Yano Alice – Commissioner and Chair of Finance Committee, Constitution of Kenya Review Commission.
During the 2nd visit in February, 2002 the Mission met and discussed with the following persons:
1. Ms. Elizabeth A. Oduor-Noah - Assistant Resident Representative (Programme), United Nations Development Programme (UNDP), Nairobi, Kenya.
2. Mr. Kwendo Opanga, Senior Journalist, Standard Newspapers, Nairobi, Kenya.
3. Hon. Shem Ochuodho, MP under the National Development Party (NDP).
4. Mr. James Njoroge, Taxi Driver, Westlands, Nairobi, Kenya.
5. Hon. Abubakar Zein Abubakar, Commissioner, Constitution of Kenya Review Commission, Nairobi, Kenya.
6. Hon. John Mutakha Kangu, Commissioner, Constitution of Kenya Review Commission, Nairobi, Kenya.
7. Rose Wambua, Curio Trader, Westlands Market, Nairobi, Kenya.
8. Dr. Walter Pflaumer, Political Counsellor, United States of America Embassy, Nairobi, Kenya.
9. Hon. Uhuru Kenyatta, MP, Minister for Local Government, Nairobi, Kenya.
10. Hon. Cyrus Jirongo, MP
11. Hon. Julius L. ole Sunkuli, MP, Minister of State in the Office of the President Responsible for Security, Nairobi, Kenya.
12. Mr. Timo Ollekonen, Second Secretary, Embassy of Finland, Nairobi, Kenya.
13 Dr. Roland Schwartz, Resident Representative, Friedrich Ebert Stiftung (FES), Nairobi, Kenya.
14. Prof. Yash Pal Ghai, Chairman, Constitution of Kenya Review Commission, Nairobi, Kenya.
15. Dr. Oki Ooko Ombaka, Vice-Chairman, Constitution of Kenya Review Commission, Nairobi, Kenya.
16. Ms. Wambui wa Mbaru, Githurai, Nairobi, Kenya.
17. Ms. Margreth Atieno Onyango, Hamza Road, Makadara, Nairobi, Kenya.
18. Mr. Colin Mutua, City Market, Nairobi, Kenya.
A synopsis of the Mission’s interviews with these personalities is contained in annex A to this report.
1.4 Persons who could not meet the Mission
Some of those earmarked for interviews were unable to meet with the mission for various reasons including collision of schedules and being outside the country. Among these were Rev. Timothy Njoya, a PCEA Cleric and member of NCEC and recipient of the Hubert Humphrey [Human Rights] Award for 2000; Dr.
Gibson Kamau Kuria, Advocate of the High Court of Kenya and former Chairman of the Law Society of Kenya and University of Nairobi Lecturer and currently with NCEC; Hon. Charity Ngilu, the leader of the National Party of Kenya who ran for President in 1997 and Convenor of the Women’s Political Alliance of Kenya; Hon. Mwai Kibaki, Leader of the Official Opposition in Parliament, Chairman of the Democratic Party of Kenya and
one time Vice President of Kenya; and Hon Amos Wako, The Attorney General.
Others who could not meet the Mission were Hon. Otieno Kajwang, an NDP Member of Parliament and member of the Parliamentary Select Committee established under the Constitutional Review Act, 2001; Sheikh Ahmed Khalif, General Secretary of the Supreme Council of Kenya Muslims (SUPKEM) who actively
participated in the Ufungamano process; Hon. Joseph J. Kamotho, Secretary General of the ruling Kenya African National Union (KANU) and member of the Kenyan Cabinet; Hon. Gitobu Imanyara, Secretary General of FORD Kenya and Member of Parliament’s Select Committee on the Constitution; and Hon. Michael Kijana Wamalwa, Chairman of FORD Kenya and Member of Parliament.
Meeting these personalities would have definitely enriched the report of the Mission, however within the time at its disposal the Mission managed to interview a cross-section of people who by and large represent the broad spectrum of Kenyan political views on both the constitutional review and the
development of the country. The full list of those interviewed is appended to this report.
CHAPTER TWO
CONSTITUTIONAL DEVELOPMENT IN EAST AFRICA
2.1 Independence Constitutions
The three East African countries, i.e. Kenya, Tanzania and Uganda were under British colonial over-rule. Although basically colonies, legally they had different titles and classifications. Kenya was a colony, Uganda a protectorate and the then Tanganyika a trusteeship. They regained their independence in the early 1960s – Tanganyika in 1961, Uganda in 1962 and Kenya was the last in 1963. Thereafter they followed different constitutional arrangements taking into account their specific socio-economic conditions and history. Below we describe the basic constitutional developments in the three countries from independence to the present. The points of similarities and differences provide some background to a more extensive examination of the Kenyan situation.
2.2 Kenya
Kenya has had a very interesting constitutional history. Kenya’s independence talks were carried out in constitutional conferences held at Lancaster House, London and Nairobi in 1963. It was at these talks that the Independence Constitution was prepared. In May of the same year elections were held on the
principle of one person one vote in leading to victory for the Kenya African National Union (KANU). Internal self-government was attained on 1st June and full independence on 12th December, 1963. In 1964 Kenya did away with the Queen as the Head of State by becoming a republic with an Executive President. Mzee Jomo Kenyatta who had been the Prime Minister became the first President of Kenya. The
opposition Kenya African Democratic Union (KADU) merged with KANU, thus making Kenya a de facto one party state.
The 1963 Constitution of Kenya has been amended several times since independence. The most far-reaching amendments are those which dismantled the multiparty democracy and ushered in a one party state and later the reversal of that system and the reintroduction of a multiparty political system in the 1990s.
Constitutional rule in Kenya has been rocked over the decades since independence by several unexplained assassinations of prominent political figures. These include those of Pio Gama Pinto, Tom J. Mboya, Josiah Mwangi (JM) Kariuki, and Robert Ouko. These assassinations had serious repercussions on the Kenyan body politic.
In 1966, the first Vice President of Kenya Jaramogi Oginga Odinga resigned from the ruling party and government to form the Kenya Peoples’ Union (KPU). He was joined by other prominent politicians who were dissatisfied with the way the country was moving politically. These included Bildad Kaggia and
Achieng Oneko. Three years later in 1969 KPU was banned, thereby confirming the one-party status of the country. In August, 1978 the first president of Kenya Mzee Jomo Kenyatta died and was succeeded by Daniel Arap Moi, the current Head of State.
In 1982 two events of constitutional importance for Kenya took place. First, there was an attempt to remove the government from power by unconstitutional means – i.e. by use of military force by some sections of the Kenyan army and Airforce. This was unsuccessful. Secondly, Kenya which had only been a de facto one party state was officially declared a de jure one party state. This was done through the adoption of Section 2A of the Constitution by Parliament, followed by protracted struggles by Kenyans demanding for the resumption of multiparty activity in the country. These struggles took various forms including seminars, workshops and at times demonstrations which were
sometimes crushed with excessive force by the members of the police force. The most prominent of the demonstrations were those referred to as the “Saba Saba” uprisings of 1990. A year later in 1991 Section 2A was repealed and political pluralism was allowed once again in Kenya.
The long awaited constitutional review process came in 1997 when the Constitution of Kenya Review Commission Act was passed to provide a framework for constitutional change. Following extensive negotiations between the government and civil society, changes were effected in that law through the Constitution
of Kenya Review Commission (Amendment) Act, 1998. The new changes managed to incorporate a people driven constitution-making process The insistence by those in government and the ruling party that it is only parliament that could review the constitution stalled the process again. It is at this point that the Ufungamano Initiative; a citizen’s lobby group on constitutional change led by the religious sector came into life.
The mandate of this group was to facilitate the making of a constitution for Kenyans by themselves. Following the intervention by Prof. Yash Pal Ghai, the Chairman of the Constitutional Review Commission, the two initiatives – i.e. the parliamentary group and the Ufungamano group, merged to form one Commission. It is this new Commission which is undertaking constitutional review in Kenya today.
2.3 Tanzania
At independence Tanzania began as a multiparty democracy with the ruling Tanyanyika African National Union (TANU) working hand in hand with other much smaller parties. This was to change soon thereafter. One year later, the country became a republic with an executive president. This was done through the
Republican Constitution of 1962. In 1964 Tanganyika merged with Zanzibar to form the United Republic of Tanzania. The Union was given constitutional backing through the Interim Constitution of 1965. It is this same constitution which declared Tanzania a democratic one-party state.
A permanent constitution for the country was adopted in 1977. Since then, this constitution has been amended 13 times – with some amendments minor and insignificant and others major and far-reaching. The main constitutional changes have been the following:
(a) The 5th Constitutional amendment of 1984 which introduced a Bill of Rights in the Constitution.
(b) The 8th Constitutional Amendment of 1992 which ended the one-party political system and re-introduced multi-party democracy.
In 1998 the government published a White Paper for constitutional review. A Committee under the chairmanship of Hon. Mr. Justice Robert Kisanga, a respected judge of the Court of Appeal, was appointed by President Benjamin Mkapa to collect the views of the people on constitutional issues which the
government thought important. Interestingly, it was the government itself which had decided which issues were important and had actually provided tentative answers to these issues. It was now calling upon the people to contradict those views if they wished.
The result was the 13th constitutional amendment of 2000. This amendment was unfortunate because it took the country ten years back. According to this amendment, a presidential candidate who had previously required 50% of all valid votes could be declared elected by simple majority. The effect
was to create a president who could be sponsored by a single ethnic group or a merger of related ethnic groups. In addition, the president was allowed to nominate ten (10) members of parliament. The amendment did not provide any guidance and therefore the president could effectively use this new avenue to nominate unpopular people who had been rejected by the people in the direct ballot. Nominated MPs had been removed from the
political system in Tanzania since 1985 in an attempt to build a representative character of the National Assembly.
2.4 Uganda
2.4.1 Independence Constitution
The negotiations for Ugandan independence took place at Lancaster House, London during 1961 and 1962. The parties at the negotiation table were: the British Government, leaders of the two main political parties (DP, UPC and KY), representatives of the four Kingdoms and Busoga Kyabazinga.
The results of these deliberations were the Independence Constitution of 1962. Its main features were: A Constitutional Presidency and an Executive Prime Minister, the leader of the majority party in Parliament; A fully-fledged federal status for Buganda Kingdom with its own courts, Police etc.; A semi-federal status for the other three Kingdoms: Bunyoro, Ankole, Tooro and the Kyabazinga of Busoga; A unitary status for the rest of the districts in Uganda; and special schedules outlining the privileges and powers of each Kingdom and those of the Busoga Kyabazinga.
One unresolved issue in the Constitutional discussions concerned two counties originally belonging to Bunyoro but which had been given to Buganda in the late 1890s as a reward for fighting the powerful Kabalega, the King of Bunyoro. This issue was to be resolved through a referendum by the inhabitants of
those two counties, within two years of Independence. The referendum was held in November, 1964 and the inhabitants overwhelmingly chose to become part of Bunyoro Kingdom. This decision led to the KY leaving the UPC alliance and thereby marking the beginning of political problems in the country. In February 1966, the Prime Minister, Milton Obote unilaterally suspended the Independence Constitution. This unconstitutional act
led to the several decades of war and instability in Uganda.
On 15th April, 1966 a new Constitution was imposed on the people of Uganda by Prime Minister Obote. This Constitution is known as the ‘pigeon-hole’ Constitution because Parliament did not participate in its drafting. Members of Parliament were simply told to find their copies in their pigeon-holes, after the debate on its introduction had been conducted.
This unpopular Constitution had three main features. First, the Constitutional Presidency was abolished, making the Prime Minister Executive President with considerable powers. Second, the federal and semi-federal status for Buganda and the Kingdoms was abolished. Uganda became a fully unitary State. Third, Kingdoms and Kings were retained but fully restricted to only cultural matters without any political or administrative roles in Government. This imposed Constitution was opposed in Buganda and elsewhere. A long-duration of state of emergency was declared and operated in Buganda. The King’s palace was attacked, led by General Idi Amin and destroyed. The King of Buganda fled into exile in London where he died in 1969.
The pigeon hole constitution was followed by the Republican Constitution of 1967 which had the following features: It was discussed only by Parliament, which constituted itself into a Constituent Assembly; Parliament whose five-year term of office had expired in 1967 extended its life by another five years without any elections or consultation with the people; Kingdoms and the roles of traditional or cultural leaders were fully abolished, since in the view of the Constitution any recognition of privileges based on birth was utterly opposed to the notion of equality of all citizens; and the Powers of the Executive President and of the Central Government were greatly increased making Local Governments mere units of the Central Government whose direct powers extended to every village, family and individual person. This is the Constitution that basically remained in place under each regime, with various amendments by every newcomer until the present Constitution of 1995. During the period of Idi Amin (1971-79) Uganda was ruled by presidential decree and not the Constitution.
Unlike Kenya which has had only two Presidents since independence in 1963, (Jomo Kenyatta, 1963-78 and Daniel Arap Moi, 1978 to-date) or Tanzania which has had only three since independence, Uganda has had nine Presidents. Apart from the first President, Sir Edward Muteesa II (1963-66) and Yoweri Museveni (from 1986 to-date) all the rest captured power or were placed in power by extra constitutional means or through the massive rigging of votes as in case of Obote II in December 1980.
Many Ugandans never accepted the legality of the 1966 and 1967 Constitutions; both were lacking in credibility. During the election campaigns of 1980, a new political party, the Uganda Patriotic Movement (UPM) founded and led by Yoweri Museveni promised a new Constitution upon winning the elections. With
the massive rigging of elections, Museveni went to the ‘bush’ with the promise of a fundamental change through the making of a new Constitution by all Ugandans, in order to enable the country move back to the Constitutional path.
After capturing power in January 1986, Museveni established a Ministry for Constitutional Affairs to begin consultations for the promulgation of a new Constitution. In 1988, the National Resistence Council (NRC), (the then Parliament) debated the Bill for establishing the Uganda Constitutional Commission
(UCC). The Act addressed the following issues :
(a) Qualifications of members of UCC
(b) Eight major principles of liberal democracy to guide the UCC;
(c) Insisted that UCC should involve all Ugandans in the process through wide consultation, active participation, discussion and debate.
(d) Gave UCC autonomy and independence in carrying out its work without any interference from any individual or agency, including Government and the President.
The 21-member team was appointed by the President in February 1989 with Justice Benjamin Odoki, Justice of the Supreme Court as the Chairman of the Commission.
It took the Commission nearly four years to collect views from all stakeholders in Uganda, including intellectuals, bureaucrats, villagers, the army, women and youth to mention but a few. There were meetings where views were solicited as well as written memoranda in all languages. The Commission completed its work in 1993 and its report paved the way for the enactment of the Constitution of Uganda of 1995.
CHAPTER THREE
THE CONTEMPORARY CASE OF CONSTITUTIONAL REFORM IN KENYA
3.1 Issues raised on the Fact Finding Mission
In the course of its work, it became abundantly clear to the Mission that all major stakeholders are agreed that constitutional reform is necessary for the national peace and prosperity of Kenya. These include the ordinary people (the ‘Wanjikus’) of Kenya; civil society, the religious community; international community; political parties in the opposition; and the ruling party and its government. Though some of these groups may not articulately argue their case, they indicate quite forcefully that something is not right with the current constitutional and political set up. For this process to bear fruits, the Mission was of the view that
there is need to address a number of critical issues in order to ensure a smooth process of constitutional reform. Some of these are addressed below.
3.2 Freedom of Expression
A substantial number of those who spoke with the Mission expressed concern over the curtailment of freedom of expression. Section 79 of the Constitution of Kenya, guarantees the enjoyment of freedom of expression, which includes freedom to hold opinions without interference, freedom to receive ideas and
information, freedom to communicate ideas and information to the public generally or to any person or class of persons and freedom from interference with correspondence.
That constitutional guarantee notwithstanding, it was felt that there are serious restrictions on the exercise of the right to freedom of expression in Kenya. The ruling party and the government have a substantial control of the major media outlets including both the electronic and the print media. Even
the so-called independent media houses are indirectly intimidated in order to cover the official position or mislead the public on other views or ignore them altogether. Examples of muzzling of the media were given which included the arrest and prosecution of editors and journalists, dismantling of printing presses and refusing broadcasting houses from using local languages e.g. Radio Kameme in Nairobi which broadcasts in the
Kikuyu language. It was felt that a genuine constitutional review exercise would require equal access to the media by all stakeholders without restriction and intimidation. Otherwise, it is likely that the public may end up receiving only one point of view. That is obviously not healthy for the constitution making process.
3.3 Security Concerns
A genuine constitutional review process entails various stakeholders being able to access the people in all parts of the country. This will enable them to discuss their ideas and views on the process and generally engage in a meaningful dialogue. The majority of those who spoke with the Mission indicated
concern over the security situation in the country. The Mission was told in very clear terms that some areas of Kenya are “No Go Areas” to members of the opposition and those not in the good books of the ruling party and its government. Examples were given of meetings being disrupted by uniformed and plainclothes police and also by sponsored thugs. At times this could happen in legally sanctioned gatherings.
These security concerns were brushed aside by the Minister in the Office of the President responsible for security Hon. Julius L ole Sunkuli. The Minister is very technical arguments said that those who have had problems with he law enforcement institutions had problems of legal existence as organisations.
He gave the example of the Umoja wa Wanamageuzi. He however, conceded that in several instances, notwithstanding the training to cope up with multi-party needs, the police have been overzealous and going beyond what is allowed by the law. Therefore, the security concerns are still valid.
3.4 Fears and Suspicions of Various Stake-holders
The various persons interviewed by the Mission indicated a serious fear that the constitution review process might not be successful. This was basically because most of the stakeholders in the process had different interests in the process. Thus, they were suspicious of each others’ interests and intentions making it was impossible to find common meeting ground. To the majority, particularly the politicians, the issue was not the future of Kenya but rather the question of ascendancy to political power by all means possible. This type of outlook has the effect of complicating the whole constitution review process.
3.5 Lack of Political Will on the part of the Government
Most of the those who talked to the Mission were wary of the governments intentions. According to them, the various statements and actions of the government and its functionaries indicated a lack of seriousness in the constitutional review process. There were all indications of a lack of political will on
the part of those in power. Examples were given of situations where the government and the ruling party would initiate a process with considerable fanfare only to frustrate it intentionally and in so doing buying time and political mileage. The Commission investigating the death of the former Minister for Foreign Affairs and International Co-operation Dr. Robert Ouko was given as an example of such frustration. The Commission
was stopped in the middle of its work and its tasks taken back to the Police Force. It was indicated that the establishment of the current Constitutional Review Commission is also suspect, for it is not constitutionally secure. As such, the Commission it can be folded at any time. It was argued that a government with genuine intentions should have provided a more secure process of constitutional review.
3.6 Main Problems Identified by Stakeholders
The respondents to the Mission were of the view that the issue of constitutional review was wider than the narrow approach of such addressing the constitution as a mere document. For the majority of them, the constitution is a living document being the social contract among the people on how they would
like their country to be governed. It was therefore important that this document addresses all the major issues troubling Kenyans of all walks of life. Among the issues identified as problematic included ethnicity, nepotism and corruption, the marginalisation of the minority groups, “tribal” clashes, ethnic cleansing, land, democracy, peace, the independence of the judiciary and gender equality.
3.6.1 The Phenomenon of Ethnicity
From the interview the Mission conducted, it was clear that the issue of ethnicity or tribalism was so entrenched as part of the divide and rule strategy of the colonial regime, is still a major issue of concern in Kenya. Often, it is not the interests of the nation that are paramount but rather those of
the tribe to which the individual owes allegiance.
In contemporary Kenya, politics, business, education and other issues relating to public life are organised around the tribe. Ministers and other government functionaries serve the public on tribal lines and not in accordance with needs and rights. The Mission was informed that even the major political
parties are established and mainly organised on an ethnic basis. The Democratic Party (DP) and Ford Asili (Saba Saba) are “Kikuyu” parties, the National Development Party (NDP) is a “Luo” party, Ford Kenya is predominantly a “Luhya” party, and Social Democratic Party was initially seen as a “Kamba” party.
Although, there are exceptions to this general rule, the above has been the trend. Politicians thus organise themselves and prepare their strategies taking into account this reality. It was suggested that the Kenya Constitutional Review Commission should attempt to go beyond ethnicity and prepare a
constitution for Kenya, rather than succumb to the sectarian and sectional interests that have plagued politics in the country. In the civic education programme a point should be continuously made about the dangers of ethnicity and the need for Kenyans to work together as one nation for a better future.
3.6.1.1 Nepotism and Corruption
In the course of the discussions with various people and groups, the Mission was continuously informed of the gravity of nepotism and corruption in Kenya. It must be added that these vices are not only found in Kenya, but are a global problem. Jobs, particularly those in sensitive areas of the economy and
government such as finance, the military and the intelligence services are given to relatives of the rulers irrespective of their qualifications. What is important is ethnic and blood relations. The results are catastrophic to the country, amounting to the plunder and running down of the country.
Corruption grows by the day. No service is offered in any public office without “Kitu Kidogo” (something small) by way if bribe or inducement. Notwithstanding the fact that the people are paying taxes, must nevertheless also ‘oil’ the officers involved. The Mission was informed that corruption is rampant in all offices – the police, hospitals and schools.
It was noted that corruption is eating into the public moral fabric and should be addressed in depth as part of the constitutional debate. The constitutional review commission was invited to take up this challenge.
3.6.1.2 The Marginalisation of Minorities
The issue of minorities in Kenya has been a critical one since independence. There are basically two types of minorities. First, ethnic minorities and second religious minorities. Ethnic minorities happen to occupy the biggest land mass of northern Kenya. These include the Somali, Bolana, Samburu, Turkana,
Pokot and related groups in the North and North-East of Kenya and the Maasai in the south, who are also found in Tanzania. To the majority of Kenyans, these minorities have not fully integrated into the “civilised” ways of life, followed by the rest of Kenyans and hence their marginalisation. Very little in terms of resources are allocated to these regions. As for the Somali, they are taken as warring people and have since
independence been governed in a highly militaristic fashion. They are segregated and treated like second class citizens in Kenya.
Ethnic minorities in the field of religion are mostly Moslems, Hindus and other much smaller religious groups. Complaints of marginalisation on the basis of religion are serious because of the sensitivity of religion and religious feeling which are abstract beliefs and very personal to the individual. It
was suggested that in the process of reviewing the Constitution, the Commission must seriously address the question of marginalisation of minorities of all kinds and how this issue can be solved once and for all.
3.6.1.3 Ethnic Cleansing – Tribal Clashes
It has been noted that whenever elections approach in Kenya, there is a tendency for the instigation of violence. This violence takes the form of one ethnic group or groups attacking others. The aim is not only to destabilise an ethnic group, but also to ensure that it does not vote. Due to the violence,
it is unable to register and also unable to vote. The destabilised ethnic groups are predominantly those which are known to vote for the opposition. Within the establishment, ethnic violence is alleged to be a product of multi-party political system. This is a debatable question which is not easy to substantiate.
The most affected groups have been the Kikuyu in the Rift Valley Province whose houses have been targeted and burnt and their lives and properties threatened. The government has done little to assure them of their safety. There have also been ethnic-related clashes on the Coast with the target being
immigrants from the inland. Again, their properties have been destroyed and their lives threatened, thus forcing them to flee. One can also see a relationship between ethnic cleansing and the clamour for Majimbo in Kenya [Majimbo is popularly used to mean as system of federal government]. Those arguing for Majimbo would essentially wish
everybody to return to the place of his or her birth and stay there.
Section 81, of the Constitution of Kenya provides for the freedom of movement and the right to move freely throughout Kenya and the right to reside in any part of Kenya. It is therefore unconstitutional to try to purge a people of a certain ethnic group from any part of Kenya. Given the recent history of ethnic cleansing in the country, the Commission needs to address this issue seriously and discuss it fully with the people in the field and provide effective protection of this right to all Kenyans.
3.6.2 Land
Land is the single most valuable asset to the human being. It is a sure guarantee to life. It is the grabbing of land and the total expropriation of the same by the colonial regime that forced a section of Kenyans to go to the forest and fight for freedom. The majority of those interviewed complained
bitterly about a repeat of what happened during the colonial period. People in positions of authority are grabbing land left, right and centre. This includes trust land and national forests. The case of Karura Forest and others were cited.
It was suggested to the Mission that the land question should be high on the agenda in all discussions of the constitution of Kenya. It is only a clear and fair policy of land acquisition, expropriation, appropriation, distribution and alienation that can guarantee peace in the country. The Mission hopes
that the Commission will appreciate the sensitive nature of land and come up with constitutional proposals that will be acceptable to the majority of Kenyans.
3.6.3 Democracy and Peace
Democracy and peace go hand in hand. Peace can only thrive in a democratic setting and a society governed by the rule of law. Real peace cannot exist in a dictatorship. Again, peace is extremely vital for economic and social progress in a society. The majority of those interviewed by the Mission were
uneasy about the state of unrest and insecurity in Kenya. It was indicated that apart from the daily battles on the streets in urban areas between robbers and police, hawkers and city askaris etceteras, actual fighting was occurring in several parts of the country. For example, the Samburu were fighting the Pokot using modern armaments – the so-called small arms etc.
It was recommended that the government must ensure that there is peace in the country. It is impossible to have a genuine constitutional review exercise in a context where there is instability and discord. Also in the process of collecting the views of the people, democratic principles should be respected
in that an opportunity should be afforded to as wide a cross-section of the Kenyan population as possible. The allotted time limitation should not be taken as a pretext of denying the people the right to air their views.
3.6.4 Independence of the Judiciary
The Judiciary is one of the three pillars of the state, the others being the legislature and the executive. In order to ensure a genuine separation of powers between these institutions, it is important to ensure that the judicial arm of the state is independent of the other two state organs, particularly
the executive.
Some of those interviewed by the Mission and who addressed the issue of the rule of law doubted the extent to which the judiciary is free in Kenya. The main complaints were rampant corruption in the judiciary and frequent interference by the executive. It was emphasised that it is impossible to talk of the
rule of law in a situation where the judiciary is not independent. It was therefore recommended that in the process of constitutional review, provisions which will guarantee members of the judiciary at all levels of tenure and independence needs to be entrenched. The Mission is hopeful that the Commission will inter alia, address this matter in its deliberations with the people of
Kenya.
3.7 The Gender Issue in the Constitutional Process
In the present epoch, the question of equality on the basis of gender is gaining prominence. Although all important international and municipal human rights instruments have always provided for equality of all human beings, the practice on the ground has been slow in catching up with the legal provisions. In many African societies (and Kenya is no exception) men and women are not treated equally. Traditions and customs are sought to justify the marginalisation, oppression and exploitation of women. Yet it is women who hold society together by doing the bulk of the work in the farms, bringing up and educating children etc.
Some of the persons who spoke to the Mission were of the view that traditions, customs and other tendencies which lead to the oppression and marginalisation of women need to be addressed by the “mother law” – the Constitution. It should not only guarantee equality of all human beings in Kenya, but
also declare oppressive and exploitative traditions and customs illegal. The government of the day should be bound to enforce the equality clauses in the constitution through its policies. It was recommended that the Constitutional Review Commission should study recent trends around the world on the issue of equality of human beings and discuss this with the people in the process of collecting views. This will enable them to
make their recommendations from a position of knowledge.
3.8 The Role of Donors
Many of the people interviewed during the visit by the Mission were of the opinion that unlike in the previous struggles for constitutional change in Kenya, donors are taking a back seat. Examples were given of the late 1980s and early 1990s when ambassadors of western states were up in arms against the
one-party political system, detention of opposition personalities and the muzzling of the media by the state etc. Names of the former US Ambassador Smith Hempstone and the Ambassador of the Federal Republic of Germany Bernd Mutzelburg were mentioned. The mission was reminded of the fact that although the western envoys were shy to get involved in local politics, the international financial institutions like the World Bank and
the International Monetary Fund were giving the government sleepless nights over corruption and the mismanagement of the economy.
In the discussion with some donors, it became clear to the Mission that while taking a very low profile, the donors have not entirely divorced themselves from the constitutional review process. The United Nations Development Programme (UNDP) for instance is very active in providing the process at technical
level. The organisation has been assisting the Constitution of Kenya Review Commission in improving its management programme, its media coverage, capacity building and civic education. UNDP emphasis has been in the issues relating to media, gender mainstreaming in the constitutional review process, citizenship and adoption. The aim of this UN body is to ensure that the Ghai Commission is engaging Kenyans fully in the
constitutional review.
The government of the United States’ support to the constitutional review process has been very minimal. It is limited to provision of materials and experts to assist the Commission to articulate its goals and objectives. The US, through USAID has also been supporting Non Governmental actors involved in
civic education. It also intends to send in election observers and poll watchers when that phase of the democratic exercise is reached so as to ensure that the elections are free and fair.
Another important actor has been the Friedrich Ebert Stiftung (FES), a foundation of the German Social Democratic Party (SPD). FES has decided to support various groups to prepare their input to the constitutional review process. Those targeted by the foundation are the youth, women, trade unions
and small-scale artisans (Jua Kali). Also, at times, the foundation has gone out of these confines to fund meetings involving the Constitution of Kenya Review Commission and political parties. This exercise is aimed at facilitating interaction among important stakeholders.
Otherwise, the majority of donors have adopted the wait and see attitude. Their main argument being that they do not see a full and unequivocal support to the democratisation process on the part of the Kenyan regime of President Daniel Arap Moi. They question for instance, the logic of allocating Kshs. 7
million to civic education and Kshs. 40 million for the Commissioners in the Ghai Commission. To them that is a clear indication that the government would want a greased Commission that will do what the government wants because it is being paid to deliver just that. That fear is increased by the fact that this pampered Commission is not even secured under the Constitution and thus can be wound up any time if it
“misbehaves.” This explains, and may be justifies the attitude of the majority of donors to the constitutional review process.
Some of those who spoke with the mission were happy that the foreigners were keeping away from the process. While they appreciated the fact that the donors can have an edge over the government when it comes to pushing for change, they still believed that the task of democratisation was an entirely Kenyan
Affair for the people of Kenya to resolve. They were wary of the price which would come with the assistance to push the current regime to accept change. Donors have their own interests to secure and these interests are rarely identical with those of the mass of the people of Kenya.
3.9 The Genesis of the Current Constitutional Review Process
One thing is certain, that Kenyans have never slept over their rights. Even under very extreme conditions, they have always gallantly fought for their civil, political, economic, social and cultural rights. This is the case during both the colonial and the post-colonial era. The underlying aim has always
been to make Kenya a better place to live. The constitution is the most important institution in any country. This is because it governs all relations in the country by providing, inter alia, for the form of government and its relationship with the people. It is therefore important for people to take part in the formulation of this institution called the Constitution. The current
discussions over the review of the constitution began back in the 1980s and culminated in the abolition of the one-party political system and the introduction of multi-partism in 1991.
3.10 The “Wanjikus” of Kenya and the Constitutional Review Process
The man on the street is part and parcel of the constitutional review process in Kenya. It is his Constitution which is being reviewed. The Constitution is not a monopoly of few learned brothers and sisters and the politicians. As it has been noted by others, the Constitution is a social contract between
and among the leadership and the led. It is the basic law of the land and thus guides all the people in their interaction with each other. It is therefore, for the rich, the poor, the educated, the uneducated, the able-bodied as well as those who are differently-abled.
However, in Kenya this seems not to be the case. The whole constitutional process has been reduced to a game between the ruling party and its allies on the one hand and the opposition on the other. The lawyers and other educated sections of the population provide the intellectual base to this endless
debate. This is how the common man the on the street – “the Wanjiku” - sees the situation. He has therefore resigned to the process. The majority of the common people interviewed in the course of the visit by the Mission were by and large indifferent and even contemptuous of the whole process.
Very jovial traders and or market women changed abruptly when the word “Katiba” – the Constitution was mentioned. They immediately became suspicious, uninterested, unfriendly and the otherwise smooth-going conversation was hurriedly but friendly brought to a premature end. To many, the politicians
have conned them for too long. They have given up. They thus viewed the current debate on constitutional review as the latest gimmick by the politicians they hate!
A few people who were willing to talk and who had some formal education and could read and write and peruse a newspaper once in a while conceded to know of a Professor Ghai who was said to be doing something about Katiba but they were not bothered to get deeper into exactly what he was doing with the
Constitution.
Given this negative, but perhaps legitimate attitude of the majority of the common people, the Constitution of Kenya Review Commission has an uphill task. The Commission, if it is serious about its work, has to create room for provision of civic education to all the people of Kenya. This should be the type
of education that will not only enable the people to know about their Constitution, democracy and good governance, but also a type of education that will make the majority of Kenyans to identify themselves with this basic law of the land – the Katiba!
CHAPTER FOUR
THE CONSTITUTION OF KENYA REVIEW COMMISSION (CKRC)
4.1 Establishment and Composition
The Constitution of Kenya Review Commission is established under the Constitution of Kenya Review Act, 2001 and is made up of 27 members, with the the Attorney General and the Secretary to the Commission as ex-officio members. The members of the Commission have
been nominated and endorsed by Parliament and appointed by the President. All Commissioners are supposed to discharge their functions independently and with integrity. The Act gives the Commission legal and corporate status. The terms of service of the Commissioners and other officers of the Commission are determined by the Minister of Finance in consultation with the Parliamentary Select Committee.
The Commission, whose headquarters are in Nairobi, works through plenary sessions and meetings of advisory committees and panels. In the process of collecting peoples’ views, the Commission is expected to hold sittings in other parts of Kenya as well. In order to show a presence in other parts of the
country, the Commission is supposed to establish units in all districts. The administrative set-up of the Commission revolves around the national secretariat under the Secretary who is answerable to the Commission. Under the Secretary are Deputy Secretaries, other staff and consultants. The overall head of the Commission is the Chairperson who is assisted by the 1st Vice Chairperson and the 2nd
Vice-Chairpersons.
4.2 Legitimacy, Legality and Securing the Review Process
Some of the people interviewed by the Mission were worried about the very existence of the Commission, and were of the view that it is standing on a very shaky legal ground. The law establishing the Commission does not conform with the constitutional provisions on the way the Constitution is supposed to be
reviewed.
Therefore, it is highly probable that once challenged in a court of law, the Commission may be declared unconstitutional. It is therefore unwise to invest so much money, brains and time on an insecure process. It is of paramount importance to secure this process by ensuring that it conforms with the legal
requirements for constitutional review.
A simple amendment to the Constitution is not enough. Total entrenchment of the process in the Constitution is important so that it is not easy to play around with. The entrenchment of the process should go hand in hand with the security of the funding to the Commission. If the money is not directly
charged on the consolidated fund, then it is easy for either the executive or the legislature to frustrate the process. This may happen when the Commission attempts to assert its independence. The current situation on the funding of the constitutional review process is confusing. While the Review Act provides that funding for the review shall be charged and issued out of the Consolidated Fund, in practice the National Assembly
still appropriates funds for the review as part of the regular budgetary process.
4.3 Working Environment of the Commission
The Commission itself notes the existence of both strengths and opportunities which it can easily exploit. However, there are weaknesses too, some of which are deep enough to threaten the very existence of the Commission. Among the identified strong points which can tilt the scale in favour of the
Commission include political goodwill (sic); strong public support for the merger efforts of the Chairperson; fresh start; historic moment; faith and trust of the public; public interest in the review (sic); Chairperson’s expertise and experience; financial support, technical capacity; diversity of Commissioners; legislative support; liberalised media; the goodwill of donors; and the availability of external expertise.
Having interviewed several persons in the course of its work, the Mission is not quite certain about some of the points indicated as favourable to the Commission. For instance, the issue of political goodwill is suspect. Particularly given recent utterances (sometimes completely unjustified) by senior
politicians in the country, including the head of state about the Commission. One cannot assert with certainty that the public in Kenya is in support of the review process. It is not that the common person on the street would not support the effort. The problem is, the whole process is a monopoly of the middle and upper class. The “Wanjikus” of Kenya are going on with their
business unbothered about the issue of constitutional review. Therefore, the Commission has an uphill task of consolidating these strong points and cultivating new ones.
At the same time, notwithstanding the above strong points, the Commission is aware of its major weaknesses that may threaten its very existence. Among these are a weak secretariat; internal division and mutual mistrust; public perceptions of the Commissioner as greedy and quarrelsome; political sabotage
and the public perception that some Commissioners collude with and take instructions from politicians; the lack of terms of service for the Commissioners; negative and ill-informed press; time constraints; uncertainty of the date of the next General Elections; succession issues; rapidly changing political situation; and perceived foreign interference.
Although some of the points identified as weaknesses contradict those identified as strong and opportune, the Mission finds it positive that the Commission is engaged in a soul-searching exercise and analysing itself with openness. It is therefore easy to correct some of the weaknesses if there is
seriousness and the will to do so.
4.4 Timing of the Constitutional Review Process
The constitutional review process kicked off in October, 2000. According to the Constitutional of Kenya Review Act, 2001 the Commission is given 24 months to complete its work. It is therefore supposed to complete its work by September, 2002. Many people who have been seriously involved in constitutional
review exercises elsewhere, some of whom were members of the Mission, doubt that a task of this magnitude can be completed within a period of two years. This belief is further cemented by the fact that with only one year to go the Commission has not actually started with the actual collection of the views of the Wananchi. It is still engaged in the process of clarifying its tasks through seminars and workshops by experts from
various countries.
The only literature the Commission has managed to produce so far is its two-year strategic plan, a six-page flier with eight questions and answers on the review of the constitution in English and Kiswahili, and a five-page civic education curriculum for the process of constitutional review in Kenya. All
these documents were produced in July, 2001. That is not very encouraging progress.
The Commission is nevertheless convinced that it will meet the deadline. Interestingly, many people believe this because they have no reason to doubt the word of the Chairman of the Commission who has promised to deliver in time. The Mission has serious doubts about this possibility. Some of the
respondents were concerned that the Commission was not engaged in the process on a permanent and continuous basis. Being a Commissioner requires heavy preparations and calls for total dedication and undivided royalty.
Of course, the Commission is likely to finish the work within time if it is going to review the constitution itself the way it feels fit without consulting the people of Kenya. This danger can already be detected from the way the Commissioners are openly arguing among themselves when contributing to
seminar papers on issues such as Majimbo etc. If they choose this short cut to constitutional review, the Mission is of the view that they will have failed to deliver to Kenyans what was expected of them.
The Mission is of the view that the Commission needs to revisit their timeframe and formulate more realistic schedule of work which will enable them to do a serious consultation with the mass of the people of Kenya. Examples of what can be considered as reasonable time for a serious constitutional review
can be easily picked (subject to necessary modifications) from other countries which have undertaken the exercise. Uganda is the best example in the region.
CHAPTER FIVE
MAIN FACTORS AFFECTING THE CONSTITUTIONAL REVIEW PROCESS
5.1 Expressed Worries
Those who spoke with the Mission indicated that though Kenyans would like to have their Constitution reviewed, two main intervening events might affect the whole process in a major way. These events which are of constitutional importance are the general elections scheduled for 2002 and the issue of succession to the highest public office in the country; the Presidency.
5.2 The General Elections of 2002
All other things being equal, the next general elections in Kenya are scheduled for 2002. Elections are a major event in the lives of many Kenyans. This is because they normally take advantage of this democratic opening to really select their leaders. Major casualties of this exercise are normally those in
government – ministers and deputy ministers. Also, judging by past experience half of the sitting members of parliament lose their seats in an election. Therefore, while elections are popular with the public, they are not with those in public offices which are affected.
Also, though not publicly admitted, election time is also “corruption” time. A lot of money exchanges hands in the search for votes. It is time for the people to “eat” before they are ignored by their own representatives for the next five years. Therefore, the people by and large look forward to
this exercise. According to those who spoke to the Mission, elections enter into the imagination of Kenyans in such a way that it is impossible to concentrate on anything else during the elections season. Therefore, the moment the process begins, then the constitutional review process will have to be kept on the hold because nobody will bother about it. Definitely, this is going to affect the constitutional review process and
has to be taken into account by those undertaking it and those in government as well. At the same time, knowing this attitude towards elections – the Constitution of Kenya Review Commission can come up with constitutional review proposals that will assist the electoral process and make it part and parcel of the review process.
5.3 The Issue of Succession
Kenya has had two heads of state since independence. First, Mzee Jomo Kenyatta who led Kenya from 1963 up to 1978, and then President Daniel Arap Moi who is still in office up to the time of this report. According to the Constitution, President Moi is serving his second and last five-year term which comes
to an end in 2002. Naturally, the issue of who will succeed him creates a considerable excitement both within the ruling party KANU and its partner NDP as well as within the opposition.
Many people are of the opinion that the issue of succession will occupy the majority of people more than the need for preparing a thorough Constitution for the country. When the time comes, this issue may derail the on-going constitutional review exercise. The Commission will thus need a great deal of
creativity in order to keep the people’s minds interested in its work. Here basic civic education which can clearly indicate the centrality of the Constitution in the lives of Kenyans is required at this point in time.
CHAPTER SIX
RECOMMENDATIONS OF THE MISSION
The Mission is genuinely concerned about the whole constitutional process in Kenya. It is in the interest of the people of Kenya and the East African region that the process is a re-sounding success and that they end up with a type of Constitution they will not only fully identify with, but which will also usher in a democratic culture and guarantee them peace, harmony and prosperity. The people of East Africa harbour the same wishes as whatever happens in Kenya definitely affects the region in general in various ways. In order to contribute to this goal the mission would like to make the following recommendations for consideration by the various stakeholders involved in the process.
6.1 Recommendations to the Government of the Republic of Kenya
The Fact-Finding Mission would like to make the following recommendations to the Government of the Republic of Kenya:
(a). Timing of the Constitutional Review Process
The Mission is of the view that given experience from within the region and beyond, the two years given to the Constitution of Kenya Review Commission to undertake the constitutional review process is inadequate. Even if the Commission had started immediately after the passing of the relevant legislation,
it would still not have managed to cover the whole country if it is expected to do a serious job involving consultation with a wide spectrum of the Kenyans populace.
In order to be able to do a thorough job, the Mission recommends the extension of the life of the Commission in order to enable it to thoroughly undertake its assigned task. The modalities of extension could be discussed by the stakeholders taking into account the various factors which surround the
exercise. A Constitution is a solemn document which guides the country. It is a document that should not be altered simply to suit specific interests. It is supposed to serve the interests of the nation as a whole and in particular, it should be able to guarantee stability. It can only succeed in this if the Constitution itself is stable. Therefore, it is important for Kenyans of all walks of life to take time in thinking over
their social contract – a contract that brings them together and binds them.
The Mission is aware of the vagaries of extension of the time-frame for the work of the Commission. As indicated above, there are clear advantages of this course of action. The Commission will be able to do a thorough job and will be able to fully consult the stakeholders. There are also legitimate fears
for extension of time. Firstly, it is most likely that once extension is announced people will loose interest and the whole process will loose its momentum. Also, funding of the exercise at the current rate from both the government and others sources cannot be guaranteed. There are suggestions for meeting between the two proposals on extension. That is, completing the exercise by December, 2002 and then spend the whole year in
2003 dissemination of the Constitution so that people understands it. Given all these possible scenarios, the Mission is still of the view that the current time-frame is unrealistic and requires to be reviewed if the Commission to do a thorough job.
(b). The Issue of Facilitation: Financial and Constitutional Guarantees
The Mission is of the opinion that the constitution review process can only succeed if it is properly facilitated by the government. It thus recommends that the Commission be guaranteed financial resources. A Commission starved of financial resources can hardly function. Therefore, in order to underline its support of the process, the government must ensure that the work of the Commission is smooth.
Currently, the legality of the Commission is suspect as it is not constitutionally guaranteed. Securing the process will also contribute to the legitimacy and acceptance of the Commission by the people of Kenya. In general, the Mission urges the government to fully support the Commission so that it is able
to do what is was established to do and achieve what the Kenyan people expect from it.
(c). Security
Security is a major concern in Kenya. One cannot move around the country with freedom. The situation is made even more acute for prominent politicians in the opposition. As indicated earlier, meetings are disrupted and people manhandled in all sorts of ways. If this constitution review process is to be
meaningful at all, the government which has control over the security forces and institutions should be able to guarantee security to all stakeholders involved in the constitution review process. Security guarantees will ensure that all political and other players have equal access to the people and are able to interact with them.
The Mission therefore recommends that during the constitutional review process and beyond, government must ensure that every part of Kenya is accessible by all stakeholders including political parties, religious groups, NGOs and to every citizen of the country.
(d). Involvement of All Stakeholders
The Constitution that is being moulded in this process is meant too be the property of all Kenyans. It is therefore important to ensure that the process is not hijacked by a few people, pretending to speak for and on behalf of the rest of Kenyans. This is the only guarantee that the product of this
exercise will be respected.
The Mission thus recommends that the government of the day should ensure through both the law and policy that all stakeholders fully participate in the constitutional review process.
(e). Provision of Civic Education to the People by All
Consulting people on the type of Constitution they would like to have is not a simple matter. The process can only have meaning if those being asked are in a position to give their views from a standpoint of knowledge of what they are saying. In order to equip the people with the necessary background and
knowledge of what choices there are available, civic education plays a very central role. As indicated above, currently civic education is highly restricted in Kenya. Apart from the Constitution of Kenya Review Commission, very few other groups are allowed to provide civic education. The most prominent are the Church and Maendeleo ya Akina Mama. It is the considered opinion of the
Mission that this situation is not satisfactory. In order to enable the people of Kenya to contribute to the constitutional process from an informed position, the government should remove all restrictions on the provision of civic education. The Mission thus recommends that all groups, NGOs included, should be allowed to provide civic education to the people of Kenya without any restrictions.
6.2 Recommendations to the Constitution of Kenya Review Commission
The Constitution of Kenya Review Commission (CKRC) or the Ghai Commission as it is popularly known, has been entrusted with a mammoth task of overseeing a historical event taking place in Kenya. For this Commission, the Fact-Finding Mission has the following recommendations:
(a) Working as a Team
Currently, it is clear from the discussions the Mission had with the Commissioners that the Commission does not act as a cohesive team. Many Commissioners still seem to owe allegiance to the forces that put them in the Commission. This makes them lack independence in decision-making. Their efficiency in
the execution of their duties to the public is thereby affected. The presence of a highly qualified and experienced Chairman, is a positive factor, which must be utilised to ensure that all the Commissioners have a unity of purpose and are moving in tandem. It is essential for the whole Commission to be able to identify with all its decisions and work as a coherent team. The Commission needs to find a single voice to express
its self.
(b) End to Internal Differences
Much of the period that the Commission has been spent resolving differences, arising out of the nature of the Commission, as an amalgamation of societal interests and processes. This not only undermines the credibility of the Commission, but also takes a lot of time of the Commission and distracts it from
its main mission. At present, the Commission does not have much time to complete its work. For it to be successful, its members need to bury petty differences and concentrate on the task entrusted to them by the people of Kenya.
(c) Focus on the Task at Hand: Collecting Peoples’ Views
From the discussion with the Commissioners and what has been reported in the local media, it is obvious that not all Commissioners are clear as to precisely what role is required of them. Some honestly believe that they have been appointed as representatives of the people and therefore, they can give their
(personal) views on the constitutional review on behalf of the people. This perception emerges clearly in the seminars on topics such as Majimbo etc. It is important for the Commissioners to know that their duty is to collect the views of the people and not to give their own views. They must concentrate on what type of constitutional framework Kenyans would like to have. That is their
task.
(d) Reaching the People and not Using Samples in Collecting Views
The way things are currently organised, it would seem that it will not be possible for the Commission to reach and extract the views of the people in the villages, towns and trading centres all over the country. The Commission will address and collect views from organised meetings by the local leadership
– chiefs etc. and those chosen by these local leaders. One cannot expect views that will be any different other than those in support of the status quo. It is important for the Commission to devise other ways of reaching the people other than doing so from a programmed position. An example, is by meeting people in their natural surroundings such as market places etc. where people are in a position to give their natural
feelings in an unprogrammed manner.
(e) Support other Groups to Undertake Civic Education
Civic education is the only sure way of ensuring that the people of Kenya make decisions on their Constitution and their future from a position of knowledge. The issue of who should provide civic education to the people is a contested one. The government favours a restrictive provision of civic education.
Only a few groups are allowed to do this – mainly the religious and women groups. Other groups attempting to provide civic education have been subjected to harassment by the police and administrative machinery of the government.
The Commission itself has prepared a syllabus for provision of civic education. However, there is no way the Commission and these few groups can satisfactorily provide civic education to the whole of Kenya. Yet there are many other Non Governmental Organisations (NGOs) with both capacity and means of
providing this education but not allowed to do so. It is the view of the Mission that the Commission should impress on the Government of Kenya to allow other groups to take part in provision of civic education. This will assist to make the work of the Commission a success.
6.3 Recommendations to the Donor Community
The donor community is good at pointing fingers over violation of human rights and fundamental freedoms and bad governance in general. In fact, adherence to constitutionalism and good governance is made a conditio sine qua non for the continued flow of aid and
assistance. As a country struggles towards progressive constitutionalism and good governance, it is just logical that the donor countries should not fold hands and simply watch. They should come forward and assist. It is the hope of the Mission that the donor community will support the current efforts by Kenya to review their Constitution.
6.4 Recommendations to the Kituo Cha Katiba (KCK)
By taking special interest in what is taking place in Kenya, KCK has pioneered a very interesting tradition, which is within its mandate. This exercise should not end with Kenya. It is important for this type of exercise to be done in relation to the other East African countries whose constitutions cannot
be said to be perfect and not needing review.
The results of this particular exercise and that will follow should be disseminated extensively through various means such as seminars, workshops, conferences. This will cement a culture of constitutionalism and good governance in the region.
CHAPTER SEVEN
GENERAL CONCLUSION OF THE FACT-FINDING MISSION
The constitutional review process taking place in Kenya today is very important. It is a process that will contribute to the unity, prosperity, good governance and constitutionalism in Kenya. This is not only good for Kenya but also for the whole East African region and the African continent in general. It’s success will
be a shining light to those still hesitant to plunge into constitutional review exercise. It will be a clear indication that people in a country can sit down and discuss openly and at length about the future of their country. For this exercise to succeed, it is important that the process is not monopolised by a group or a section of the Kenyan society. It should be all-inclusive.
Every Kenyan is a legitimate stakeholder in this process and thus should be afforded opportunity to participate fully in this process. At the same time, the process should be open and transparent. This mission has been undertaken and its recommendations made in good faith for the sake of a bright future for Kenya, East
Africa and African in general. It is our hope that this report will be taken seriously by all those involved.
ANNEXTURE A
A SYNOPSIS OF MISSION INTERVIEWS
Dr. Willy Mutunga: the Executive Director of the Kenya Human Rights Commission (KHRC):
Dr. Mutunga noted that this is the first time since 1961/1963 that the people of Kenya were being given an opportunity to say something pertaining or relating to the governance of their country. He was basically supportive of the on-going constitutional review process through the CKRC. In his view, in the course of the debates and people
giving their views, there are chances of going beyond the constitution and discussing other vital matters of critical concern to Kenyans such as land and insecurity. In other words, there is a possibility of Kenyans taking advantage of the opening offered by the review process to say what they have always wanted to say but not been afforded the opportunity. He was also hopeful that some of the Commissioners might, in the
process, become patriotic and decide to contribute positively to the development of constitutionalism in Kenya. If this takes place, then this might make a considerable difference to the process of constitutional reform. Hence the need to allow the process to take off. This was an opportunity which can be put to good use by the citizenry.
Hon. Raila Odinga: Minister for Energy, Leader of the National Development Party (NDP) and Chairperson of the Parliamentary Select Committee established under the Constitutional Review Act of 2001
: Hon. Odinga, whose opposition party is currently co-operating with the ruling Kenya African National Union (KANU), with two of its members of parliament on the Kenyan cabinet, concentrated his comments on the joint NDP/KANU proposals on how Kenya should be governed. The proposal basically urges the reintroduction of regionalism (Majimbo). In his opinion, the constitutional
debate should concentrate on issues like boundaries, land, taxation, electoral system and balance of power between the central government and the region. Therefore, Hon. Odinga and NDP, the issue of majimbo in the next Constitution of Kenya is more or less a foregone conclusion.
Hon. James Orengo: Member of Parliament for Ugenya (Ford Kenya) and Leader of the Movement for Change (Muungano wa Mageuzi):
Hon. Orengo, who is a victim of harassment by police and other law enforcement agencies, centred his discussion on the need for the ruling party and the government to level the political playing ground. He noted that it is presently very difficult for members of the opposition to engage meaningfully in politics in the country. The State was systematically criminalising every political activity by
the opposition, tear-gassing meetings by the opposition and taking them to court on tramped-up charges and generally inciting people to violence. In his opinion, any constitutional review process which will not provide and guarantee equal opportunity to all political players will not contribute much to the development of constitutionalism and good governance in Kenya. Hon. Orengo was prepared to give the Ghai Commission a
chance to try and achieve what he described as the impossible. However, he was not sure whether the Government would be willing to allow the Commission to do its work without interference. On civic education, while supportive of the need to involve NGOs in this activity, Hon. Orengo was wary of the language to be used. He noted that not every Kenyan speaks either English or Kiswahili. In what language will this education be
conducted? The Commission needs to address this important question and not much time is left.
Hon. Professor Peter Anyang’ Nyong’o, nominated Member of Parliament and Chair of the Political Bureau of the Social Democratic Party (SDP) of Kenya
: Hon. Anyang Nyong’o underlined the fact that what is taking place in Kenya is a highly guided and manipulated process. The ruling party is in control and is making sure that, unlike Tanzania and Uganda where the opposition can get access to the people, this is purposely prevented. He did not think that the Ghai Commission will achieve much
because the way peoples’ views will be collected is suspect. He was of the considered view that it is impossible to secure meaningful constitutional change under an authoritarian regime. He thus advocated for limited changes under the Constitution which can assist to usher in democratic processes under which a genuine Constitution can be prepared.
Members of the Law Society of Kenya (LSK)
at its offices in the Professional Centre. In attendance were Ms. Raychelle Omamo, the Chairperson; Mr. Nzamba Kitonga, the President of the East Africa Law Society (EALS); and Ms. Martha Koome and Jane Kiragu, respectfully, the Chairperson and the Executive Director of FIDA-Kenya: The members of LSK doubted whether the Ghai Commission was capable of completing the constitutional
process in time for the coming elections. They also noted that the debate on succession might hijack and even derail the constitution review process. The issue of the security of the Commission itself was raised. It was noted that currently, the legal standing of the Commission is highly doubtful and if those involved are serious, they should try to secure it legally. Otherwise, a simple suit can send the whole process
crumbling like a house of cards.
Ms. Hellen Obong’o of Kenya Women Political Caucus and Ms. Rose Halungu Olende of Maendeleo ya Wanawake Organisation
: The Mission was informed that although there is a split in the Women’s Political Caucus since 2000 forcing some members to leave and form The Women’s Political Alliance, the Chairperson of The Women’s Political Caucus, Ms. Phoebe Asiyo is currently a member of the Ghai Commission. Both groups represented by the two women supported the current constitutional review process and indicated a willingness to
participate in the provision of civic education.
Hon. Farah Maalim, the Chairman of Safina Party
: Hon. Maalim made a case for the protection of minorities in Kenya. He noted that certain areas in Kenya have been condemned since independence and people resident in these areas are treated like second-class citizens. He cited the case of Kenyan Somalis and Moslems on the coast of Kenya. He argued that any constitutional arrangement to emerge out of the current process can only have meaning if it
notes and accommodates the various minorities in the country. Hon. Maalim ruled out the extension of the life of the Kenyan Parliament as a way of allowing the Ghai Commission to complete its work. He noted that due to the benefits which the parliamentarians have voted themselves, in the eyes of the common man, the parliament lacks legitimacy. Therefore, he recommended minimum amendments to the Constitution and other laws to
level the playing field by facilitating democratic elections.
Mr. Kepta Ombati, Hassan Omar and Hakim Chiaji of the Kenya Youth Movement
: The youth were articulate, stimulating and extremely honest in their views. They indicated doubts about the whole constitutional review process. They doubted the honesty of the religious leaders in the Ufungamano group because of the manner in which the representatives of this group to the Constitutional Review Commission were elected. They
indicated that in the process, the youth were not only marginalised but also completely ignored.
Mr. Mohamed Nyaoga and Mr. Amolo Otiende of International Commission of Jurists (ICJ-Kenya)
: They argued that ICJ supports the merger between Ufungamano and the Parliamentary group. They noted that this support is dependent on the whole process being all inclusive. They noted that the internal squabbles within the Commission were very disruptive and was undermining the whole process. In
addition, they noted that some of the Commissioners do not have the requisite qualifications and were simply job-seekers – more interested in allowances than constitutional change and basically representing certain sectional interests. According to these representatives of the ICJ, one should differentiate between elections and the Constitution. While elections are a passing event, the Constitution is a long-lasting
agreement among the people. The Commission needs to appreciate this important fact during the course of its work. They supported involvement of NGOs and other interested groups in the provision of civic education arguing that it is not a monopoly of the Commission and the Government.
His Grace Raphael Mwana-Nzeki, the Archbishop of Nairobi
: The Archbishop was very supportive of the constitutional review process under Prof. Ghai. He argued that although time was short, he believed that if the Chairperson was sure of completing the task, then it was still possible. He indicated that his Church will be involved in the exercise of civic education as they have always done.
Hon. Musikari Kombo, a Member of Parliament (Ford Kenya) and publisher of the controversial “List of Shame on Corrupt Individuals in Kenya”
: Hon. Kombo argued that the biggest fear for the constitutional review process was the overbearing powers of the executive branch of the State in Kenya. A meaningful review of the Constitution should inter alia entail curb the extensive powers in the hands of the executive. He was in the Ufungamano group and supported the merger between the group and the parliamentary group. He expressed a lot of faith in Prof. Yash Ghai as the Chairperson of the process. However, he did not believe that the process could be completed within the statutory time. He recommended minimum changes, then the holding of elections and thereafter allowing the Commission to continue with its work.
Hon. Kombo supported the involvement of NGOs in the process of civic education.
Dr. Tade Aina, Deputy Representative and Programme Officer - Governance and Civil Society and Dr. Joseph Gitari, Programme Officer – Human Rights and Social Justice – Ford Foundation, Nairobi Office : In the course of a very fruitful discussion, the foundation made it clear that it would not like to be responsible for civic education. They argued that those interested in the subject should be able to mobilise funds and other resources for civic education. They noted that civic education was being used as a pretext to stall development in the constitutional process. They both encouraged the Mission to diligently continue with the work at hand which the foundation valued as a positive contribution to constitutionalism and good governance not only for Kenya but for the whole East African region.
The Constitution of Kenya Review Commission : The majority of the Commissioners were presently during the Mission’s first visit to Kenya, with the exception of the Chairperson. At this point in time it was apparent that the Commission had not precisely resolved how it was going to collect views from the people and the manner of provision of civic education to the people of Kenya in order to enable them to contribute to the constitutional debate from a position of knowledge. However, during the second visit, when the Mission also spoke to the Chairman and the new Secretary to the Commission, it would seem that the Commission had covered quite some distance towards actualisation of its goals.
The basic infrastructure had been laid out. All district offices had been established and district co-ordinators appointed and trained. Also, several district documentation centres had been put in place to assist the citizens to access materials on and from the Commission including video and audio tapes. To assist the Commission in collection of information, constituency forum committees had also been put in place. The Mission also found several publications and pamphlets and posters produced by the Commission as part of its public information campaign.
Ms. Elizabeth A Oduor-Noah, the Assistant Resident Representative (Programme), United Nations Development Programme (UNDP), Nairobi almost represented the position of the donor community. In her opinion, the majority of the donors were keeping a distance from the whole constitutional review process because the government of Kenya was not giving full and unequivocal backing to the democratisation process. Therefore, the assistance given was mainly technical without serious impact. Hence, she was of the view that total and unwavering stand from the government was important if the donor community was to be attracted to the process.
Mr. James Njoroge, a Taxi Driver from Westlands, Nairobi
in his conversation with the members of the Mission indicated that he has heard of Professor Ghai and his Commission. He was not sure what they were doing as he had little time to follow-up what they were doing. Asked about his views about constitutional change, Mr. Njoroge said that he has heard that there was a process of amending the Constitution. He commended the process because in his
opinion any change was good and thus welcome. He however thought that the members of the Mission were in a better position to analyse these complicated things than him.
ANNEXTURE B
LITERATURE AND LAWS AVAILABLE TO THE MISSION
Books and Monographs
ABDULLAHI, Ahmednasir M., Burial Disputes in Modern Kenya: African Customry Law in a Judicial Conundrum, Nairobi: Faculty of Law, University of Nairobi, 1999.
BAILEY, Jim R.A., Kenya: The National Epic, Nairobi: Kenway Publications Ltd., 1993.
BASIC RIGHTS STEERING COMMITTEE, Basic Needs are Basic Rights: The Core Challenge for Constitutional Reform in Kenya, Nairobi: Action Aid Kenya, 1999.
BERMAN, Bruce J. and John Lonsdale, Unhappy Valley: Clan, Class and State in Kenya, London: James Currey, 1991.
BLUNDELL, Michael, A Love Affair with the Sun: A Memoir of Seventy Years in Kenya, Nairobi: Kenway Publications, 1994.
CENTRE FOR LAW AND RESEARCH INTERNATIONAL, We the People: A Citizen’s Guide to Constitutional Reform, Nairobi: CLARION, 1998.
COHEN, David William and E.S. Otieno Odhiambo, Burying SM: The Politics of Knowledge and the Sociology of Power in Africa, Nairobi/ Portsmouth, NH/ and London: East African Educational Publishers/ Heinemann/ and James Currey, 1992.
CONSTITUTION OF KENYA REVIEW COMMISSION, Civic Education Curriculum for Constitutional Review of Kenya, Nairobi: Constitution of Kenya Review Commission, July, 2001.
CONSTITUTION OF KENYA REVIEW COMMISSION, Eight Important Questions and Answers on the Review of the Constitution, Nairobi: Constitution of Kenya Review Commission, July, 2001.
CONSTITUTION OF KENYA REVIEW COMMISSION, Strategic Plan (October 2000 – September 2002), Nairobi: Constitution of Kenya Review Commission, July, 2001.
GOVERNMENT OF KENYA, The Constitution of Kenya (Revised Version), Nairobi: Government Printer, 1992.
GOVERNMENT OF KENYA, The Constitution of Kenya Review (Amendment) Act, 2001 (Act No. 2 of 2001).
GOVERNMENT OF KENYA, The Constitution of Kenya Review Act (Chapter 3A of the Laws of Kenya), Revised Edition of 2000.
HEMPSTONE, Smith, Rogue Ambassador: An African Memoir, Sewanee, Tennessee: University of the South Press, 1997.
HUMAN RIGHTS WATCH CHILDREN’S RIGHTS PROJECT, Juvenile Injustice: Police Abuse and Detention of Street Children in Kenya, New York: Human Rights Watch, 1997.
HUMAN RIGHTS WATCH, Failing the Internally Displaced: The UNDP Displaced Persons Programme in Kenya, Nairobi: Human Rights Watch, 1997.
HUMAN RIGHTS WATCH/ AFRICA WATCH, Divide and Rule: State-Sponsored Ethnic Violence in Kenya, New York: Human Rights Watch, 1993.
IHONVBERE, Julius O., Towards a New Constitutionalism in Africa, London: Centre for Democracy and Development, April, 2000.
KENYA HUMAN RIGHTS COMMISSION PRISONS PROJECT, A Death Sentence: Prison Conditions in Kenya, Nairobi: Kenya Human Rights Commission, 1996.
KENYA HUMAN RIGHTS COMMISSION, Kayas of Deprivation, Kayas of Blood: Violence, Ethnicity and the State in Coastal Kenya, Nairobi: Kenya Human Rights Commission, 1997.
KENYA HUMAN RIGHTS COMMISSION, Mission to Repress: Torture, Illegal Detentions and Extra-Judicial Killings by the Kenyan Police, Nairobi: Kenya Human Rights Commission, 1998.
KENYA HUMAN RIGHTS COMMISSION, Shackled Messengers: The Media in Multi-Party Kenya, Nairobi: Kenya Human Rights Commission, 1997.
KENYA HUMAN RIGHTS COMMISSION, Where Terror Rules: Torture by Kenyan Police in North Eastern Kenya, Nairobi: Kenya Human Rights Commission, 1998.
KIBWANA, Kivutha (ed.), Law and the Administration of Justice in Kenya, Nairobi: International Commission of Jurists – Kenya Section, 1992.
KIBWANA, Kivutha (ed.), Readings in Constitutional Law and Politics in Africa: A Case Study of Kenya, Nairobi: Faculty of Law, University of Nairobi and Claripress Limited, 1998.
KIBWANA, Kivutha et. al, The Citizen and the Constitution, Nairobi: Claripress Limited, 1996.
KIBWANA, Kivutha et. Al. (eds.), The Anatomy of Corruption in Kenya: Legal, Political and Socio-Economic Perspectives, Nairobi: Claripress, 1996.
KIBWANA, Kivutha, Democracy, the Law and Political Parties in Kenya, Nairobi: Claripress, 1998.
KIBWANA, Kivutha, Learning Together to Build One Nation: A Practical Guide on How to Do Civic Education, Nairobi: Claripress and Friedrich Ebert Stiftung, 1997.
KIBWANA, Kivutha, Making our Constitution: Questions and Answers, Nairobi: Claripress and Friedrich Ebert Stiftung, 2000.
KIBWANA, Kivutha, Sowing the Constitutional Seed in Kenya, Nairobi: Claripress, 1996.
KULOBA, Richard, Courts of Justice in Kenya, Nairobi: Oxford University Press, 1997.
LAMBA, Shermit, A Post-Colonial Theory of Justice: Towards the New Constitution of Kenya, Nairobi: Mazingira Institute, 2001.
MAMDANI, Mahmood and Joe Oloka-Onyango (eds.), Uganda: Studies in Living Conditions, Popular Movements and Constitutionalism, Vienna: Austrian Journal of Development Studies, 1994.
MATIBA, Kenneth, Aiming High: The Story of My Life, Nairobi: The People Ltd., 2000.
MILLER, Charles, The Lunatic Express: An Entertainment in Imperialism, London: Classic Penguin, 2001.
MITULLAH, Winnie V. et. Al (eds.), The Case for an Ombudsman in Kenya, Nairobi: Claripress Limited, 1998.
MURUNGI, Kiraitu, In the Mud of Politics, Nairobi: Acacia Stantex Publishers, 2000.
MUTUNGA, Willy, Constitution Making from the Middle: Civil Society and Transitional Politics in Kenya, 1992 – 1997, Nairobi: SAREAT, 1991.
ODINGA, Oginga, Not Yet Uhuru: An Autobiography, New York: Hill and Wang, 1969.
OJWANG, J.B. and J.N.K. Mugambi (eds.), The S.M. Otieno Case: Death and Burial in Modern Kenya, Nairobi: Nairobi University Press, 1989.
OJWANG, J.B., Constitutional Development in Kenya: Institutional Adaptation and Social Change, Nairobi: Acts Press, 1990.
OKECH-OWITI and Kivutha Kibwana (eds.), Good Governance and Accountability in Kenya: The Next Step Forward, Nairobi: International Commission of Jurists (Kenya Section)/ Kenya Human Rights Commission/ and Law Society of Kenya, 1994.
OLOKA-ONYANGO, Joseph; Kivutha Kibwana and Chris Maina Peter (eds.), Law and Struggle for Democracy in East Africa, Nairobi: Claripress, 1996.
PATEL, Zarina, Challenge to Colonialism: The Struggle of Alibhai Mulla Jeevanjee for Equal Rights in Kenya, Nairobi: Zand Graphics, 1997.
REPUBLIC OF KENYA, Report of the Judicial Commission Appointed to Inquire into Allegations Involving Charles Mugane Njonjo (Former Minister for Constitutional Affairs and Member of Parliament for Kikuyu Constituency), Nairobi: Government Printer, 1984.
RUTTEN, Marcel; Alamin Mazrui and Francois Grignon (eds.), Out for the Count: The 1997 General Elections and Prospects for Democracy in Kenya, Kampala: Fountain Publishers, 2001.
THROUP, David and Charles Hornsby, Multi-Party Politics in Kenya: The Kenyatta and Moi States and the Triumph of the System in the 1992 Election, Oxford/ Nairobi/ and Athens: James Currey/ East African Educational Publishers/ and Ohio University Press, 1998.
WANJALA, Smokin C. (ed.), Essays on Land Law: The Reform Debate in Kenya, Nairobi: Faculty of Law, University of Nairobi, 2000.
WANJOHI, Nick Gatheru, Political Parties in Kenya: Formation, Policies and Manifestos, Nairobi: Views Media, 1997.
WARUHIU, S.N., From Autocracy to Democracy in Kenya: Past Systems of Government and Reforms for the Future, Nairobi: Waruhiu and Gathuru Advocates, 1994.
Articles and Chapters in Books
CHEGE, Michael, “The Return to Multi-party Politics,” in BARKAN, Joel D. (ed.), Beyond Capitalism vs. Socialism in Kenya and Tanzania, Nairobi: East African Educational Publishers, 1995, p. 47.
GOLDFARB, Alan, “A Kenyan Wife’s Right to Bury Her Husband: Applying the Convention on the Elimination of All Forms of Discrimination Against Women,” Volume 14 No. 1 ILSA Journal of International Law, 1990, p. 1.
JJUUKO, Frederick W., “The State, Democracy and Constitutionalism in Africa,” Volume 2 No. 1 East African Journal of Peace & Human Rights, 1995, p. 1.
KIBWANA, Kivutha, “Women, Politics and Gender Politiking: Questions from Kenya, in OLOKA-ONYANGO, Joseph (ed.), Constitutionalism in Africa: Creating Opportunities, Facing Challenges, Kampala: Fountain Publishers, 2001, p. 194.
M’INOTI, Kathurima, “Constitutional Experience in Kenya from Independence to the Present: Successes and Failures,” in Constitutionalism, Human Rights and Regional Integration: Proceedings of a Conference on 15th – 16the August 1996 in Mombasa, Kenya, Kampala: Konrad Adenauer Stiftung and East Africa Law Society, 1996, p. 13.
MUTUNGA, Willy, “Constitutions, Law and Civil Society: Discourse on the Legitimacy of People’s Power,” in OLOKA-ONYANGO, Joseph (ed.), Constitutionalism in Africa: Creating Opportunities, Facing Challenges, Kampala: Fountain Publishers, 2001, p. 129.
NYONG’O, Peter Anyang’, “State and Society in Kenya: The Disintegration of the Nationalist Coalitions and the Rise of Presidential Authoritarianism, 1963 – 1978, volume 88 No. 351 African Affairs, 1989, p. 229.
ODHIAMBO, E.S. Atieno, “Democracy and the Ideology of Order in Kenya, 1888 – 1987,” in SCHATZBERG, Michael (ed.), The Political Economy of Kenya, New York: Praeger, 1987, p. 177.
ODOKI, Benjamin J., “Writing of a Democratic Constitution,” Volume 1 No. 2 East African Journal of Peace & Human Rights, 1993, p. 195.
OKOTH-OGENDO, H.W.O., “Constitutions Without Constitutionalism: Reflections on an African Political Paradox,” in SHIVJI, Issa G., State and Constitutionalism: An African Debate on Democracy, Harare: SAPES Books, 1991, p. 3.
WALIGGO, John Mary, “Constitution-Making and the Politics of Democratisation in Uganda,” in HANSEN, Holger Bernt and Michael Twaddle (eds.), From Chaos to Order: The Politics of Constitution-Making in Uganda, Kampala and London: Fountain Publishers and James Currey, 1997, p. 18.
WANJALA, Smokin, “Human Rights Promotion and Protection in Kenya: An Overview,” in MCHOME, Sifuni E. (ed.), Taking Stock of Human Rights Situation in Africa, Dar es Salaam: Faculty of Law, University of Dar es Salaam, 2002, p. 82.