How politicians have perfected the art of mutilating the constitution for personal whims

President Uhuru Kenyatta shakes hands with ODM leader Raila Odinga during the launch of Building Bridges Initiative report at Bomas of Kenya in Nairobi. [Stafford Ondego]

The restive Mt Kenya is burning. It is apprehensive. The Rift is waiting with open hands, either to receive the baby or throw it together with the bath water. 

In the home of champions Uasin Gishu, its sons and daughters are uncertain on whether the baby is even welcome. In this confusion and optimism, a wind of change is swirling across the country, carrying with it irresistible reggae beats and a promise of a utopian New Kenya where all broken bridges will be mended and no more bloodshed in name of elections.

This is the promise President Uhuru Kenyatta and his erstwhile opponent Raila Odinga made to Kenyans on March 9, 2018. Although a lot of water has passed under, it is emerging that for the promise to hold, some old bridges had to be dismantled for new ones to be repaired.

And as Kenyans anxiously wait for a new political dispensation envisaged by the Building Bridges Initiative (BBI), we take a look at the tortured journey Kenyans have been taken through right from 1962 when the first constitution was canvased.

The countryside is littered with instances of betrayal, broken promises and bridges and ruined careers sacrificed at the altar of the powerful leaders who used the constitution to achieve their dreams.

Some of the motivations for changing this supreme law were personal and a peek into history reveals a troubling penchant for Kenyan rulers to mutilate the constitution, sometimes to resolve personal problems or settle personal scores.

Veteran constitutional lawyer and scholar Yash Pal Ghai offers useful insights in Public Law and Political Change in Kenya, a book he co-authored with JPWB McAuslan.

Evidently, the first constitution which birthed the first republic was rammed down the throats of Kenyans by the founding fathers, who were scheming to change sections they did not like even before the ink was dry.

This betrayal and the tinkering of the supreme law is traceable to the dawn of independence at a time when 'smaller" communities feared being dominated by their perceived bigger rivals in the new Kenya of 1963.

Some of the minority communities' fears were partially addressed by the entrenchment of the Majimbo system of government where each of the seven regions had semi-autonomous governments led by presidents, which came into effect on June 1, 1963.

To insulate these regional units -- which had their own assemblies -- from the central government, district based senators were elected to the Senate.

After independence, Kenyatta refused to implement the constitution and made sure officers in the regions were employed by the Central government.

The regions too were starved off cash to a point where Kadu threatened to go to court to force the national Treasury to let loose the purse strings.

But even as the central government systematically chipped away the powers of the regional governments, their representatives spectacularly failed as demonstrated by Ghai and McAuslan.

“One of the acts of the assemblies was to enact legislation to give themselves allowances and remuneration while teachers under their regions went without pay and were being dismissed for lack of money…”

On August 14, 1964 Kenyatta decreed that regional assemblies should not have exclusive executive authority on matters which should be planned on national scale. Public service was to be centralised, land vested in the regions was to be surrendered to the central government but trust land would remain under local councils.

All these changes were contained in a Bill introduced by the government in the House of Representatives on October 1964.

At the same time, the opposition crossed over to the government side, marking the beginning of an end to the insulation which had been created by a bulwark of safeguards that made it difficult to dismember the constitution at will.

This paved way for the merger of the two houses on December 20, 1966.

Free seats

Ironically, senators, supposed to be guardians of devolution were hoodwinked in July 1966, to repeal some sections of the constitution which safeguarded the senate.

In return, each senator was assigned a new constituency, bringing the total to 158. The life of Parliament was also prolonged by two years until June 1970, postponing the polls earlier scheduled for June 1968 as had been provided for by the constitution.

The reasons given for this were that elections were tiresome, expensive and a waste of money. It was also argued that it would have been unfair to senators whose term of office would not have expired until 1970.

In the meantime, the constitution had been changed to provide for a President, in place of a prime minister and some changes were later done after the Vice President, Jaramogi Oginga Odinga, was hounded out of office.

Historian Charles Hornsby explains in his book, Kenya: A history Since Independence, that out of fear that Tom Mboya, who was then 35, was becoming too powerful and could easily succeed the ailing Kenyatta as president, Attorney General Charles Njonjo engineered constitutional changes to alter the minimum age of presidential candidate to 40 years.

Meanwhile, Kenyatta who was now over 80 became more intolerant and at times disregarded the constitution when it did not suit him, even as Kanu Governing Council declared him President for life on July 4, 1974.

In 1969, Kenyatta had by presidential proclamation extended sea boundaries from three to 12 miles without any constitutional backing and Parliament had to enact a law in 1972 to give this proclamation some legal basis.

Again in July 1971, Kenyatta postponed local government elections from 1972 to 1974  after he met a delegation of councilors. When informed by Njonjo that this was illegal, Hornsby writes that Kenyatta retorted: ”to the devil with the law.’

When in 1974 the head of state chaired a Kanu governing council, he decreed that from then henceforth parliamentary debates would be executed in Kiswahili, triggering opposition from MPs who were not fluent in the language.

At the time the constitution stipulated that debates in Parliament were strictly to be carried out in English.

To teach Jomo a lesson during a motion of adjournment on July 9, 1974, MPs refused to speak in Kiswahili and the government lost.

In retaliation, Kenyatta on July 10, 1974 ordered the constitution to be amended for the thirteenth time, making Kiswahili the sole language of Parliament.

This was to last for five years, to the chagrin of MPs who changed it after Kenyatta's death, restoring English as the official language in Parliament.

The following year, a constitutional amendment of personal nature was done after one of Kenyatta's buddies in prison, Paul Ngei lost his Kangundo parliamentary seat after a court nullified his win and barred him from standing for five years.

“Kenyatta summoned Njonjo and told him to find a away of accommodating Ngei. In a two days, Njonjo pushed through the 15th amendment of the constitution. The amendment granted Kenyatta powers to pardon a convicted election offender. With the amendment, Ngei was pardoned and was allowed to contest in the by-election and was appointed to the cabinet," Hornsby writes

On September 26, 1976, a group of Kenyatta allies declared during a rally in Nakuru their intention to change the constitution to block Vice President Daniel Moi from ascending to the presidency in what could have been the most profound amendments. This time, Njonjo scuttled the attempts but he too would occasion his own changes later. 

When he retired as the Attorney General, Njonjo attempted to change the constitution in June 1980. He wanted to scrap the post of the Vice President, then held by Mwai Kibaki, and replace it with a Prime Minister's slot for himself.

So heated was the debate that Kibaki had to twice deny in Parliament that he was planning to resign to protest the scrapping of his post.

And on June 9, 1982, the 19th constitutional amendment was made to the effect: “There shall be in Kenya only one political party, The Kenya African National Union."  This was championed by Njonjo who wanted to block Jaramogi who had just announced that he was in the process of registering Kenya African Socialist Alliance (KASA).

Kibaki seconded the motion, blaming Marxism and foreign ideologies for creating pressure for a second party.

There was also another draconian amendment stipulating that MPs who ceased to be members of Kanu would lose their seats.

Interestingly, some of the MPs who would later campaign against this amendment included Charles Rubia, James Orengo, Mark Mwithaga, Martin Shikuku, John Keen, Wamalwa Kijana and Koigi Wamwere.

A constitutional amendment came in handy when Simeon Nyachae fell out of favour with the system.

His post of Chief Secretary was abolished and Nyachae sent on compulsory leave and barred from contesting the Nyaribari Chache parliamentary seat.

Again, Kibaki seconded this motion in Parliament and was backed by the whole house with the exception of Rubia and Jonathan Njenga.

In December 1991, following a Kanu Governing Council meeting, the party under former President Moi resolved to repeal section 2A to pave way the establishment of many political parties.

For the last 60 years, Kenya has been tinkering and toying with the constitution, scrapping and proposing the creation of the Prime Ministers and scrapping of the Vice President's post even as it was weaponised to solve election disputes or reward cronies.