Changes to 2010 law must be genuine and necessary

By Charles Kanjama

When Kenya’s first Constitution was three years old, it had already undergone significant transformation. Kenya obtained independence as a parliamentary democracy, with the Queen’s appointee, Governor Malcolm Macdonald, as head of state. It was set up as a federal dominion with eight regions. The previous colonial regions were realigned into what later became the eight provinces.

To protect the Constitution, the amendment threshold for entrenching provisions was a high 75 per cent in the National Assembly and 90 per cent in the Senate.

It is interesting to note that Kenya’s Independence Constitution was not even the Self-Governance Constitution that had been in force in May 1963 when Kenyans voted in parliamentary elections. After Jomo Kenyatta was sworn-in as Prime Minister on June 1, 1963, he made his first Madaraka Day speech outlining his government’s future policy. He insisted his Kanu government would not be fettered by constitutional restrictions, that the Majimbo constitution would be changed, and that Kenya would become a republic.

In September 1963, Kenya’s last pre-Independence constitutional conference took place, with some regional functions, like police and public service being transferred to national government. A year later on Kenya’s first anniversary, December 12, 1964, Kenya became a republic with Jomo Kenyatta becoming the first President.

In another two years, Kenya had lowered the threshold for constitutional amendment to 65 percent, eliminated the title ‘regional president’, created an executive president with substantial powers, and effectively dismantled regional governments. Kenya had seen five substantial amendments in three years.

By 1969, through six additional amendments, Kenya’s constitution was substantially redrawn. Presidential elections were to be by direct election. The Senate had been abolished. The life of Parliament had been extended by two years. Regional governments, later renamed provincial councils, were finally abolished. Some scholars therefore consider the 1969 Constitution, consolidated into a revised document by Act No. 5 of 1969, to be a new Constitution. This new Constitution was maintained without amendment for five years.

This was a deceptive calm, since the Constitution was then subjected to 12 amendments in 15 years, culminating in the infamous 1988 amendment that removed security of tenure of judges and state officers. Some negative changes were reversed with the reintroduction of multiparty democracy. After four amendments between 1990 and 1992, and an extra amendment in 1997 to level the electoral playing field, Kenya’s 1969 Constitution endured its final amendment in 2008 to entrench the constitution review process and pave the way for our 2010 Constitution. By the time we discarded it, our 1963 Constitution was hardly recognisable. In contrast, Kenya’s 2010 Constitution will enjoy its third anniversary in two days’ time, still in its pristine condition. Several provisions are being implemented for the first time after the March 4, 2013 elections, including the chapter on devolution, and substantial portions of the chapters on the Executive and the Legislature.

The Commission for the Implementation of the Constitution shall stand dissolved five years after it was established, and is thus expected to continue in operation until at least December 2015.

Kenya’s Constitution has several imperfections. It also has several ambiguities, abeyances and apparent contradictions. Some of the implications of the document are only now being felt, including the growing tolerance for abortion, robust parliamentary supervision of constitutional bodies including the Judicial Service Commission, weak Senate powers, marriage equality and thus eventual abolition of polygamy, etc. As we welcome the Constitution’s third anniversary, one thing is clear.

The growing clamour for amendment, initially kicked off by governors, is likely to grow and encompass other groups. And there is nothing wrong with that, so long as the changes sought are genuine and necessary. For now though, the baby is developing soundly, and deserves appreciation. Happy birthday to the new Kenya!