Constitution amendments that dealt Kenya a body blow

Leaders attend a Lancaster House conference. They spearheaded the amendment of the Independence Constitution.

By Njonjo Kihuria

Kenya: When the first amendment to the Independence (Lancaster House) Constitution was made in 1964, Kenyans were elated in the realisation that their fellow countrymen were now in full control of the country’s destiny.

They celebrated what they called a hard fought war to attain freedom while others likened the milestone to the crossing of River Jordan to the Promised Land.

The Constitution of Kenya Amendment Act No 28 of 1964, made Kenya a republic with its own President who was now the Head of State.

However, leaders would later set in motion a process that would see the country’s supreme law get extremely mutilated. Between 1964 when Kenya became a republic under the late President Mzee Jomo Kenyatta and 1978 when he died, Attorney General Charles Njonjo, the Cabinet as well as Parliament spearheaded the amendment of the Constitution to an extent where the presidency would become the all powerful institution at the expense of other state institutions and the citizenry.

Following the first amendment, a monster that would gradually create the imperial presidency, an institution that plagued the country until a new constitution was promulgated in 2010 was born.

The amendment created the office of the Vice President and gave the institution of the presidency, the power to appoint his number two.  The constitution had given crucial powers to the regional assemblies, but the executive authority of these jimbos were withdrawn by the amendment of the First Schedule of the Independence Constitution.

Judicial blow

The drafters of the amendments would go even further in creating an imposing institution when through the second amendment of the constitution in 1964, they abolished the use of the term ‘President’ in reference to regional heads. Henceforth, the term would be a preserve of the Head of State and the regional presidents became ‘chairmen’. 

The Judiciary also suffered the first blow in the passing of that amendment which gave the absolute power to appoint the Chief Justice and judges to the President. Previously, the appointment of the Chief Justice would have required consultation with the regional assemblies and that of judges with the Judicial Service Commission.

The amendment also transferred the powers of the regional assemblies to alter regional boundaries, to Parliament and made the assemblies completely dependent on the national government by repealing their powers to independent revenue collection.

But the regional assemblies would suffer the worst blow in 1965 when the constitution was amended to abolish the regional government structure, replacing it with the President-controlled provincial administration. The province was put under the administration of the provincial commissioner who was answerable to the President through a minister in his (President’s) office. It also abolished the executive powers of the regions.

The institution of Parliament began to lose its authority when the fourth amendment to the constitution was introduced in 1966. The Constitution of Kenya Amendment Act No 16 of 1966 required that MPs who did not attend the National Assembly for  eight consecutive sittings without the permission of the speaker, automatically lose their seats. The same would happen to members who were jailed for a period exceeding six months.

It further increased the powers of the President to rule by decree in some areas including North Eastern Province (where the Shifta secession war was raging between the Kenya armed forces and Shifta rebels). For the same banditry reason, the emergency powers were extended to Isiolo, Tana River, Lamu and Marsabit.

The Fifth Amendment to the independent constitution sought to weaken the opposition and directly give a body blow to former VP Oginga Odinga and his associates who had earlier left Kanu to form the Kenya Peoples’ Union (KPU) but remained MPs. The Amendment Act No 17 of 1966 provided that any MP who defected from Kanu (the de facto party) to join another (in this case KPU), went back to the electorate to seek a fresh mandate at the end of the session of his defection.

Torture

Act No 2 of 1966, required that an MP who had resigned from the party that had supported him at the time of election, at a time when the party was a parliamentary party, vacated his seat at the expiration of the session.

This would however be reconstructed to particularly victimise members of the KPU when in 1968, the intentions of the fifth amendment were made retrospective through clarification made by the eighth amendment in 1967, that backdated the effects of the fifth amendment to 1963.

The ugly hand of detention without trial that in years to come would see many (innocent) Kenyans tortured to death, maimed and incarcerated for long periods of time without judicial remedy, would come through the sixth amendment. This amendment expanded the emergency powers for the President to independently act when he thought State security was at stake. It provided for the Preservation of Public Security Act and the introduction of the sedition and subversion laws in the penal code.

Act No 19 of 1966, abolished the already greatly diluted regional assemblies and the bicameral parliament. It amalgamated the Senate and the Lower House into the National Assembly thereby abolishing the Senate and increased constituencies by 41 to accommodate the former senators. The life of the National Assembly that was to come to an end in 1968, was extended to 1970.

Special groups

The eventual death of the regional governments and devolution, was ushered through the ninth amendment in 1968 that abolished the federal structure by getting rid of the provincial councils.

A year later, the structure of the independence constitution would be altered when the tenth amendment restructured the document that was previously contained in 12 separate volumes into one.  It was this amendment that denied special groups the right to elect their own MP to represent their special interests, when it gave the President powers to nominate 12 MPs to replace the 12 that were specially elected.

The tenth amendment also provided that the President would henceforth be elected through universal suffrage and that the VP would act as President for 90 days in the event of the President leaving office for any other reason than the dissolution of Parliament.

Other constitutional changes during Kenyatta’s time included the one that lowered the voting age from 21 to 18 and the twelfth amendment that gave the President power to pardon election offenders.