Constitutional Reform In Kenya: Basic Constitutional

By J.B.OJWANG Professor of Law & Dean, Faculty of Law, University of Nairobi
14-12-2001

ISSUES AND CONCEPTS

1. Introduction

The significance of the present constitutional reform initiative lies at
two levels:

(a) the ordinary one, that applies to law reform in general, and which
dictates that the somewhat rigid shape of the operative law be reviewed
from time to time, to keep it in tune with real life as expressed in
changing social, economic and political trends; and (b) the special level
that responds to Kenya’s unique history, marked by several decades of
single-party government, and by the attendant restrictions to broad-based
participation in the governmental process. This second level also entails
the need to respond to the call of a more globalised world, in which
international law and broader world developments have established new
governance standards that, today, demand incorporation in national
governance systems. This international call upon national constitutional
systems today introduces into the agenda of good governance, matters of
great concern for human welfare everywhere, such as observance of human
rights; giving fulfillment to the rights and welfare of the child; prudent
stewardship over natural resources; environmental rights and sustainable
development; popular participation and consent in the governmental process;
etc.

As Kenya seeks a more progressive dispensation in its governance set-up,
and to consolidate the new order in a firm constitutional arrangement, we
are inevitably involved in a new learning process; a process of
consultation among ourselves; a process of fundamental reflection; a
process of identification of and dedication to new values. The sanctity of
such values has, ultimately, to be reduced to the print of the law, to the
formulation of a new constitutional instrument.

The aim of this paper is to attempt to map out the broad terrain of
constitutional reform in Kenya, addressing relevant concepts, raising
pertinent issues, and focusing attention on the cardinal points that should
lie at the centre of our search for a new Constitution, and that should be
placed, in a proper case, before the people of Kenya for attention,
consideration and expression of preference. The guidance gained from such
consultation should help the Constitution of Kenya Review Commission to
formulate a practical, sensible and potentially viable new Constitution for
Kenya.

2. Glimpses at the Constitution of Kenya Review Act (Cap. 3A, Laws of
Kenya)

The Constitution of Kenya Review Commission (referred to hereafter as “the
Commission”) is created by the Constitution of Kenya Review Act (Cap. 3 A)
and derives its whole mandate from this Act. The broad task of the
Commission is to serve as an instrument for “the comprehensive review of
the Constitution by the people of Kenya” (Long Title to the Act). The Act
is set out in six Parts, namely: (a) the preliminary Part which contains a
definition of terms; empowers particular bodies to play a role in the
review process; and sets out the governing principles to guide the
constitutional review process; (b) the second Part which establishes the
Commission; (c) the third Part which specifies the functions, powers and
privileges of the Commission and Commissioners; (d) the fourth Part which
defines modalities relating to the Report to be eventually formulated by
the Commission; (e) the fifth Part which makes provisions for the expenses
of the review process; and (f)the sixth Part which provides for the
conclusion of the review process and the dissolution of the various organs
participating in the review process.

Several elements in this setting for the review process are outstanding and
deserve to be remarked here:

(a)Informed and expert collection, collation and assessment of evidence and
opinions is required, and this task is entrusted to the Commission which is
expected to operate professionally and with integrity (S.4 of the Act);

(b)The development of a new constitutional document is required to be
conducted in the context of popular participation, and of consultation with
the National Assembly which is the principal representative constitutional
forum in the country (S.4 of the Act);

(c)The constitutional review process is required to be open to public
participation, transparent and accountable to the people, as well as
inclusive of and accommodating to the diverse categories of Kenyan people
and their peculiarities such as those relating to faith, ethnicity, gender,
race, occupation, etc. (S.5 of the Act);

(d)The primary task in the conduct of the constitutional review process,
and in ensuring that the objects of the Act are fulfilled, rests upon the
Commission. This is quite clear from basic facts such as: out of the 35
sections of the Act, 23 are squarely devoted to the Commission – its
establishment, functions and powers, its output in the form

of a Report, etc. The prominence of the Commission in the review process is
not atallnovel. A new Constitution must take the form of a sound legal
document once the political and other related inputs have been made by all
the people in their diverse vocations. As practice in most countries of
Africa shows, a constitutional commission is a most appropriate device for
eliciting from the people their broad opinions on desirable paths of
governance, and crystallising these into constitutional instruments based
on a wide consensus;

(e)The functions of the Commission are set out in detail (Section 17 of
Act). They include –

i). stimulating public awareness for useful

participation in the review process, through the conduct of civic education;

ii). eliciting and processing the views of the Kenyan people at large,
towards the formulation of a realistic Constitution founded on the needs,
feelings and inclinations of the people;

iii). researching into general constitutional issues and into comparative
constitutional experience, for the purpose of enriching Kenya’s
constitution-making process;

iv). making specific recommendation for ensuring the incorporation of the
principle of constitutionalism in Kenya’s constitutional document – this
entailing a careful balancing of the mutual powers and operation of the
Executive, the Legislative and the Judiciary;

v). considering the practicality and appropriateness of unitarian as well
as decentralist modes of national government;

vi). making appropriate recommendations for constitutional reform aimed at
enhancing human rights and gender equality;

vii). making recommendations for an improved electoral process in Kenya;

viii).taking views and making recommendations regarding property rights;

ix). re-examining the nationality laws and making appropriate
recommendations;

x). considering the interplay between cultural practices and modern notions
of rights and opportunity, and making suitable recommendations that favour
individual liberty;

xi). considering current legal arrangements regarding accession to public
office, and recommending more efficient and more progressive constitutional
procedures;

xii). re-considering the working of the foreign affairs power, and
recommending appropriate constitutional adjustments for the democratisation
of this area of public power;

xiii).considering the need for setting the requirements of a new
Constitution in a context of defined directive principles of state policy;
etc

(f)The Act entrusts the Commission with certain powers, to ensure the
fulfilment of the specified functions(S.18). There is a general empowerment
for the performance of these functions, but it is specifically stated that –

i). the Commission shall visit every parliamentary constituency in Kenya,
for the purpose of receiving the views of the people regarding the
Constitution;

ii).the Commission shall receive memoranda and hold public or private
hearing throughout Kenya, for the purpose of recording and synthesising the
views and opinions of the people, and to this end it may summon public
meetings anywhere;

3. The People: A New Presence in Kenya’s Constitution –making

Kenya’s current Constitution dates back to independence in 1963, except
that it has been repeatedly amended over the years. Its essential character
today is quite different from what it was in 1963. Most of the amendments,
and especially those of the 1960s, had a purely governmental – cum –
ruling – party origin and sought in the first place to consolidate the
authority of the Executive, almost at the expense of the other organs of
government. To this extent, the people were strangers to the process of
constitutional change. Besides, the general profile of constitutional
change was unprogressive, seen from the standpoint of constitutionalism.
Rather than promote checks – and – balances, the changes of that time
tended, in effect, to relegate both the Legislature and the Judiciary to
positions of subordination, as compared to the meteoric-ally ascendant
Executive. [essentially, the 1960s, 70s and 80s decades witnessed an
Executive -centered Constitution made by the Executive, with hardly any
informed participation by the people.

It is indeed arguable that the very popular demand for constitutional
reform today, is a reaction to that Executive – centered constitutional
order. Growing enlightenment on the part of the people, the thrust of
global development upon the national scene, and the increased apprehension
of the dialectics of public power and individual rights, have led most
Kenyans to a realisation that constitutional change is desirable; that the
centralised power of government ought to be subjected to more checks and
balances; and that greater governmental accountability can only be realised
with the operation of a greater plurality of decision – making centres.

Thus, this round of constitution – making belongs to the people, as is
clearly reflected in the Act. Let us consider the role of the people in
constitution- making, as we must expect that our new Constitution will have
a much clearer imprint of the people than has in the past been the case.

A Constitution carries the most basic principles of law that relate to a
nation’s main political arrangements. Such political situations include
governance patterns, as well as the public power schemes that the people
have accepted, or acquiesced in, or been subjected to.

Where such public power arrangements have broadly been accepted, the
outstanding problems of politics then become mainly ones of a technical and
rather limited kind.

Where the people have acquiesced in such arrangements, again the unresolved
issues of politics are in essence limited — because there is no major
quarrel with the power dispensations.

Where the people have been subjected to an unpopular public power
dispensation, a major problem of politics comes to exist, which
persistently cries out for new political dispensations – and these must be
given effect by new constitutional dispensations.

To understand which one of the three foregoing scenarios exists, we must
address one basic issue. Is there a united people, politically aware and
knowledgeable of its rights, which has by an overwhelming voice expressed
its support for, or opposition to the operative governance arrangements?

It is quite easy to answer the above question in the affirmative, in the
case of a largely secular national community that has been homogenised
through urban living, through universal education, through shared working
conditions in a market – driven economy , etc. In such a situation, the
dominant values are largely agreed and, in the circumstances, common
attitudes to governance largely prevail. Therefore, in such a condition it
can easily be said whether the constitutional order is “good” or “bad”,
judging by its level of contribution to social welfare. In such a
condition, constitution-making will be a straightforward exercise.

By contrast, where a country lacks social homogeneity – as is the case with
most developing countries which have not fully become part of the market
economy built around the production of standard goods and services, around
urban living and international trade, with their attendant cultures
nurtured by access to universal education and association with political
modernism – the factor of one people passing judgement on crucial
government options will tend to be in short supply. In these conditions,
the crucial issue in constitution-making may not exactly reflect what “the
people” may think or want. This entails the risk that a constitutional
order may be put in place that is not truly informed by the social or
economic needs of “the people”. A Constitution made in such circumstances
is likely to be a reflection of the interests of elite groups.

The lesson, for Kenya as well as for other developing countries, is that

elite groups who play a fundamental role in bringing about a new
Constitution should ensure the existence of an open procedure for
incorporating the genuine expectations of the people.

The scope for bringing about a new Constitution for Kenya that fully
responds to the expectations of the whole Kenyan people will largely depend
on the Commission, and the extent to which all its members genuinely
attempt to understand and to accommodate the country’s social reality. The
legal framework for the Commission to achieve this end is abundantly
provided in the Act (Sections 17 adn 18 of the Act).

4. Certain Key Features of Kenya’s Post-Independence Constitution — and the
Question of Reform

Most African countries attaining independence in the late 1950’s in the
1960s and 1970s adopted what may loosely be termed “revolutionary
{constitutions”, as the foundation of their governance systems in the
decades following. The making of such constitutions took place in largely
elite-type ceremonies involving the participation of nationalist leaders
and representatives of the departing colonial power. If one asked the
question: who was responsible for the creation of these Constitutions, the
correct answer would be: numerically limited elite groups of nationalist
men and women nurtured in the colonial era and largely carrying a
legitimacy resting on the overall goodwill of largely – illiterate
populations. The nationalist elites were, of course, working together with
the representatives of the colonial powers. During this earlier period,
literacy and levels of education in Africa were extremely low; and quite
naturally, only a puny elite could have been effectively involved in the
complex business of constitution – making. The nationalist elites, thus,
did have clear popular mandates founded on trust and goodwill.

The constitutional dispensation that came with independence, in its
essential features, was by no means the brainchild of the African elites
alone. In the case of the former British colonies, most of the Independence
Constitutions were modeled on the British Constitution – the model then
known as the British Export Model Constitution.

For the African leaders then, and for their peoples as well, the primary
political concern of the time was attainment a/independence, and it did not
matter so much what constitutional or juridical instruments expressed and
delivered that independence. There was no major concern to secure any kind
of “original” constitutional document – not to mention that the
intellectual and research resource – base for such a pre-occupation would
have been rather short. Indeed, governance arrangements, given their
overwhelmingly practical concerns and the premium placed on their
inclusivity, are rarely founded on abstract notions; they are, in virtually
all cases, founded instead on experience, the dominant social pressures and
needs, pragmatics, and political reality. The Westminster export Model
Constitution, in the circumstances of the time, offered the most practical
framework for the transfer of power to Kenyan nationals. Thus the 1963
Constitution was the handiwork of the British government working with the
Kenyan political elite. And as was to be expected, Kenya’s Independence
Constitution was substantially shaped by the well-worn constitutional
principles, concepts and theories of Western democracy and
constitutionalism.

Kenyan’s Independence Constitution rested on three firm pillars that have
always taken expression with only minor modifications in the older members
of the Commonwealth: a Parliament – centred governance system; a dual
Executive structure intimately linked to the control systems of Parliament;
and an aloof judicial edifice guided by the principles of the common law
and by evidence, and with a full mandate to interpret and pronounce on the
law – a judiciary that is the key purveyor of the free play of the general
law. : – ^

The merits of such a constitution cannot be gainsaid, as Kenya takes a new
look at its Constitution. Whether, on the whole, it was a “good” or a “bad”
Constitution for this country, at this point in Kenya’s constitutional
development, is of little relevance. It is more important to recognise that
the 1963 Constitution represented a vital step in the country’s evolution
as an independent state. It indeed provided the crucial institutions that
set the country afoot in independent statehood and, on this account, has
become a historical heritage and a critical reference – point in any
current and future reform initiatives.

In 1964 Kenya moved the next logical step in its constitutional
dispensation, by shedding off the “Dominion” link with the British Crown
and becoming an African Republic.

Kenya’s original post-independence Constitution provided for a complex set
of institutions. The most significant such institution was the semi-federal
(or Majimbo) system which took the form of seven Regions, each with a
Regional Assembly and a separate public service. Attendant upon this
federalist element was a bi-cameral legislature at the national level.
Provision was also made for several staff commissions, for different
aspects of the public service.

The multiplicity of public institutions under the 1963 and 1964
Constitutions was clearly intended to serve the cause of controlled
government, with minimal abuse of power. Such control was seen to inhere
not only in the design of the legal and administrative arrangements, but
also in the political dimension of public life as manifested by the
interplay of political parties inside and outside the National Assembly.

Today it is readily appreciated that limitation to governmental power is a
desirable thing as it checks abuse and enlarges the scope for individual
self-fulfilment and the enjoyment of human of human rights. The limitations
placed on public power by the original Constitution can readily be
associated with the goals of constitutionalism and the rule of law, which
most will agree, ought to feature prominently in a reformed Kenyan
Constitution. The early post-independence history, therefore, is a vital
reference point for the ongoing work of the Commission.

The Commission may need, however, to consider also the resource-cost factor
that must be confronted. It is not immediately clear whether the financial
implications of such overlapping institutional arrangements had been taken
into account at independence; but it would appear that the national
economic status was not at the time so robust as to be able to support an
infinite proliferation in governance bodies.

Numerous changes to the Constitution subsequently took place, especially
after 1964. The result was that by 1970, Kenya no longer had a Westminster
Model Constitution – founded on multipartyism, the central role of
Parliament, the Executive’s accountability to Parliament, the autonomy of
the Judiciary. By 1970 the controlling environment for the functioning of
constitutionalism and power checks – and – balances, namely the buoyant
play of a multi-party political system, had vanished. Kenya was now a
settled one-party system with a unicameral Parliament and a much scaled-
down institutional base for autonomous constitutional agencies. The 1965-
1970 period may be regarded as the watershed period in the flowering of
power concentration in the hands of the Executive, in post-independence
Kenya’s entire historical profile. Thereafter and up to 1992, Kenya’s
history was marked by a constriction in space for political activity – and
thus for the exercise of civil rights linked to political activity. In the
whole time-span running from 1965 to 1997, there have been peacemeal
changes to the Constitution, providing for momentary power-shift demands;
and these have Emanated mainly from government although sometimes also from
Parliament or from civil society.

The effect is that the Kenya Constitution, today, is in an essentially
patchwork form. In this form it carries only somewhat truncated principles;
rather inchoate lines of political inspiration; and in a number of cases,
apparent contradictions (eg., of Sections 23-25 on the one hand and
Sections 107-108 on the other, on the subject of the exercise of
Presidential prerogatives). This is likely to undermine the Constitution as
a dependable legal instrument for the protection of the individual, and for
assuring the decisive conduct of governmental business.

There is thus a manifest case for a professionally conducted review of the
Constitution, leading to the enactment of a reformed instrument benefiting
from the lessons of history, incorporating the needs and priorities of the
people, and incorporating the more progressive developments on the
international scene.

The Kenya Constitution ought to be subjected to a reform initiative – that
is, the rectification of those aspects of the governance scheme which 38
years of experience have shown to be unsatisfactory. In this process a more
professional assessment of the Constitution would also be done, to the
intent that the document be freed of any potential contradictions. A more
rational and coherent constitutional document would lend itself better to
the tasks of interpretation by the courts and by the Speaker of the
National Assembly. This professional task should run alongside a
substantive review process which relates the Constitution’s power
allocation scheme to governance lessons received over the years.

5. Proposing a Constitutional Reform Terrain

(a)Broad Reform Issues

It is to be assumed that the primary interest of the Kenyan people in
securing a reformed Constitution will rest upon certain broad social
welfare issues. In any country, citizens do expect governance systems to
secure values such as equity, justice, peace and tranquility. The
attainment of these ends is intimately linked to the management of public
welfare issues – in particular economic and social issues. Therefore, the
critical issues underlying the procedural arrangements and juridical
logistics of the constitutional order are: (i) access to economic
sustenance; (ii) equity in the distribution of economic resources; and
(iii) social empowerment for a better quality of life.

The realisation of the above-mentioned attributes is a function of power
allocation and power management. These, therefore, are at bottom, the
ultimate concerns of a Constitution. Hence a Constitution establishes the
most crucial public institutions, defines their functions, and assigns them
powers. The Constitution, then, must address the issue of the relationships
among the various organs thus established, and must deal with checks and
balances. There are, perhaps, no ideal and specific checks and balances
that apply to all countries. Appropriate checks and balances, in their
precise details, for any particular country will depend on the social and
political experiences of that country; the broad outlook of its people;
that country’s moral ethos, and its fundamental policy goals.

Is it possible to identify Kenya’s primary policy goals? The exercise would
have to be undertaken in the context of the country’s essential survival
and welfare needs, and in particular in relation to its economic status.

Kenya’s largely agricultural economy cannot attract more than a limited
amount of value – added, as the international markets of exchange have
placed much higher value on industrial products, services, scientific
technology and all kinds of invisible earnings. It is unavoidable that the
country cannot, in these circumstances, fully meet the economic welfare
needs of all its 30 million people. Kenya must work towards
industrialisation, greater trade, and the development of marketable
services. The country’s desirable governance system, therefore, must be one
that frees the national capacity of unnecessary impediments- i.e., the
capacity for the conception of policy and programming, in the interest of
industrial and related development. Constitutional reform should be guided
by such practical concerns, as it addresses current constitutional and
power arrangements. In this regard the Constitution in its reformed
character, should underline such values as prudent utilisation of
resources, technological growth, professional management of institutions,
public participation in major decisions affecting public interests,
openness and accountability. These values are not only conducive to the
enhancement of social welfare and for the achievement of development goals,
but they also coincide with well-recognised principles of democratic
empowerment, constitutionalism and good governance. There is thus an
important meeting-point between what must be regarded as Kenya’s
constitutional ideals, on the one hand, and the common principles of
legality, accountability and good governance which now enjoy distinguished
international status as represented by the many Conventions on matters such
as human rights, children’s rights, gender equality, etc.

The terrain of constitutional reform in Kenya should be inspired by such
broader background issues. In that context, the Commission should address
certain specific matters, reflect and consult upon them, adopt any emerging
consensus in relation to them, and ultimately formulate a report and draft
Constitution that addresses them squarely.

(b) Identifying Areas of the Constitution for Reform

i) General Comments

As the Commission visits the different parts of the country it can expect
to receive indications on the direction of reform, in relation to
particular issues. However, it is more likely that the responsibility of
identifying the most critical public issues, so that the people may make
suggestions for reform in relation to these, will fall on the Commission.
This is because issues of law and the development of constitutional
principles tend to be rather too professional and technical in character to
be fully knowable to the ordinary person. It must, therefore, be one of the
primary objects of the Mombasa Workshop to provide an opportunity for brain-
storming on the key constitutional reform issues of the day. Since this
Workshop is, on that account, in many ways unique, its proceedings should
be regarded as the seed for the reform process. It is thus to be expected
that the points of agreement emerging from the Workshop deliberations will
be carefully recorded, and made the conceptual reference-point for
formulating issues and questionnaires, in very simple terms, to be placed
before the people for opinions and recommendations, as the Commission
visits the various parts of the country.

None of the many papers to be presented at the Workshop can claim to
identify all the critical constitutional reform issues. Indeed, not even
all of them put together will constitute the exhaustive constitutional
reform agenda. And this paper can make no pretence of comprehensiveness, in
its identification of the crucial constitutional reform issues. It will,
however, set out, with conviction, those areas of the Kenyan constitutional
domain which do claim the Commission’s attention. The expectation is that
the Commission will anchor its work upon such issues and make them, in
addition to others, a point of full-scale consultation with the Kenyan
people, prior to the preparation of its report and the drafting of a new
Constitution.

ii) Articulating the spirit of the Constitution

Kenya’s Constitution in its present form reads like an ordinary legal
document. Apart from establishing governmental agencies and describing
their procedures and modes of operation, it provides for certain individual
rights (e.g. in Chapter V (fundamental rights and freedoms) and Chapter VI
(Citizenship)). Where specific rights are thus provided for, the
responsibility for interpretation rests with the judiciary which, it is
clear, is expected to use its traditional common law methods, without any
particular policy guidance. This character of the Constitution makes it, in
almost every respect, a juridical document and an instrument in the
operation of the conventional legal process.

It will be necessary for the Commission to consider whether or not the
Constitution should be given a stronger political character— i.e., that it
should also contain directive principles of state policy to guide and
condition the professional work of the lawyers.

The new generation of African Constitutions (eg. the Constitution of the
Republic of Namibia (1991), the Constitution of the Republic of South
Africa (1996); the Constitution of the Federal Democratic Republic of
Ethiopia (1994); the Constitution of the Republic of Uganda (1995); the
Constitution of Burkina Faso (1991). which may be said to be quite
progressive in many respects, have invariably set out national guiding

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principles to serve as the reference point in the implementation of the
specific provisions of the Constitution.

For example, the Namibian Constitution commences with a Preamble which runs
as follows:

“WHEREAS recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family is indispensable for
freedom, justice and peace; and WHEREAS the said rights include the right
of the individual to life, liberty and to the pursuit of happiness,
regardless of race, colour, ethnic origin, sex or religion, creed or social
or economic status; and

WHEREAS the said rights are most effectively maintained and protected in a
democratic society where the Government is responsible to freely elected
representatives of the people, operating under a sovereign constitution and
a free and independent judiciary; and

WHEAREAS these rights have for so long been denied to the people of Namibia
by apartheid, racism and colonialism;

NOW THEREFORE, we the people of Namibia accept and adopt this Constitution
as the fundamental law of our Sovereign and Independent Republic”.

On similar lines, the Constitution of Burkina Faso commences with a
Preamble in the following terms:

“We, the Sovereign People of Burkina Faso;

Being conscious of our responsibilities and our obligations towards history
and humanity;

COMMITTED to the preservation of our democratic gains;

DEVOTED to the preservation of these gains and having the will to build a
State that guarantees the enjoyment of collective and individual rights,
liberties, dignity, safety, welfare, development, equality and justice as
fundamental values of a pluralist society

APPROVE and ADOPT the present Constitution with this Preamble forming an
integral part thereof

The Constitution of the Republic of South Africa contains a Preamble which
states in part:

“We therefore, through our freely elected representatives, adopt this
Constitution as the supreme law of the Republic so as to—

Heal the divisions of the past and establish a society based on democratic
values, social justice and fundamental human rights;

Lay the foundations for a democratic and open society in which government
is based on the will of the people and every citizen is equally protected
by law;

Improve the quality of life of all citizens and free the potential of each
person; and

Build a united and democratic South Africa able to take its rightful place
as a sovereign state in the family of nations.”

The Ethiopian people, in the Preamble to the Constitution of the Federal
Democratic Republic of Ethiopia, are —

“Strongly committed, in full and free exercise of our right of self-
determination, to building a political community founded on the rule of law
and capable of ensuring a lasting peace, guaranteeing a democratic order,
and advancing our economic and social development;

Firmly convinced that the fulfilment of this objective requires full
respect of individual and people’s fundamental freedoms and rights to live
together on the basis of equality and without any religious or cultural
discrimination

In the African Constitutions considered above, the Preamble serves not just
as an entry-point into the text of the Constitution, but as a set of
declarations recalling a nation’s past historical experience and committing
it to a new life in which past errors are eschewed. These declarations are
intended to set the tone for the nation’s constitutional practice, and to
inspire the people and their public servants to be guided in certain
approved directions.

The Constitution of the Republic of Uganda has adopted a slightly different
approach in its entry-point into the text. Apart from its short Preamble,
it devotes as many as 29 separate articles to “National Objectives and
Directive Principles of State Policy”.

In its Preamble the Ugandan Constitution, as is to be expected, recounts
its exceptionable history of “tyranny, oppression and exploitation”, and
restates the people’s commitment to “building a better future by
establishing a socio-economic and political order through a popular and
durable national Constitution based on the principles of unity, peace,
equality, democracy, freedom, social justice and progress”.

The Uganda Constitution’s “National Objectives and Directive Principles of
State Policy” are quite detailed and provide for political objectives (such
as democratic principles, national unity and stability, national
sovereignty, independence and territorial integrity); the protection and
promotion of fundamental and other human rights and freedoms (eg. gender
balance, rights of the aged, management of national resources, right to
development, role of the people in development); social and economic
objectives (eg. social and economic objectives, the role of women in
society, the dignity of persons with disabilities, recreation and sport,
education, protection of the family, medical services, clean and safe
water, food security, natural disasters); cultural objectives;
accountability of office-holders; the environment; foreign policy
objectives; and duties of the citizen.

It is, perhaps, right that Kenya’s constitutional development should borrow
a leaf from the new generation of African Constitutions such as those
considered above. If this proposition is accepted, then our new
Constitution should ideally, have an entry point marked by a clear and
focussed statement of directive principles of state policy. The purpose
would be to acknowledge the broad social context in which Kenya’s
Constitution must operate, to identify the ideal social policy choices that
should guide the constitutional and legal process, and to provide inspiring
beacons for the people in their political life, and controls and accounting
and responsibility trajectories for officials in whom public power is
reposed.

iii) The Unitary versus the Decentralised Governance Structure

The Unitarian and the federalistic themes are ingrained in Kenya’s post-
independence history and, even on this account alone, the Commission needs
to address the question. In addition, this theme has already been recurrent
in Kenyan Constitutional talk. Therefore, the Commission should formulate
specific queries regarding the two alternatives in governance structure, to
be put to the people throughout the county.

The issue is still somewhat blurred in the minds of the interlocutors, and
more certainly so, as regards the understanding of ordinary Kenyan people.
Since government in Kenya has been conducted on the basis of a unitary
constitutional structure since the mid -1960s, most citizens today have
known no other practice. It can thus be concluded that the vast majority of
Kenyans have had a feel of the unitary Constitution. But they know little
about federalistic systems. Therefore, the current debate regarding majimbo
is not yet fully understood b the people of Kenya and they will be unable
to make any useful contribution about it during the forthcoming
consultations with the Commission — ie., in the absence of effective civic
education on majimboism.

It should be made clear that majimboism is neither a term of art, nor a
subject already made conceptually clear by any scholar or writer at any
time. It should be understood that majimbo essentially looks towards the
decentralised system of government. Decentralised governmental structures
work well in many countries of the world — the U.S.A.Switzerland, Belgium,
etc. But in those countries national integrity is by no means compromised;
there are more than sufficient resources to keep the decentralised units
permanently running; all the people in the nation have full freedoms of
movement, residence and work throughout the federal units; and the rule of
law and democracy are in full play to protect the dignity of all the people
wherever they are in those countries.

For Kenya, it will be relevant to consider the political psychology and the
social behaviour that would be evoked by the subdivision of the country
into semi-federalised units; the human, material and institutional capacity
in place to ensure the efficient running of the decentralised units; the
need to ensure the freedom and dignity as well as the right to work of all
Kenyans, where they may choose within the Republic; etc. All such issues
should be identified and the people of Kenya asked, in simple language,
whether they would prefer the unitary or the semi-federalised
constitutional order.

iv)The Executive and its Impacts upon and Implications/or the Entire
Governmental Process

Kenya set off at independence with the dual Executive: the Queen
(represented by the Governor-General) (as Head of State and Commander-in-
Chief of the Armed Forces), and the Prime Minister (Head of Government and
leader of the largest political party in the National Assembly). This
contained an element of check-and-balance: the Head of State held a
ceremonial position while the Head of Government was the “efficient”
Executive organ. Yet the instruments of constitutional action were in the
custody of the Head of State. Therefore, the real power -holder had to work
in consultation with the constitutional Head (the Head of State).

All the thirty-some constitutional changes that took place from the date of
inauguration of Republican Status (December 12, 1963) boil down to one
reality, in terms of governmental power: the pluralistic check-and-balance
constitutional model of 1963 was debunked, and replaced with a monolithic
constitutional structure in which Head of Government merged with Head of
State, in the person of an Executive President with the fullest control
over government, and very substantial influence and control over
Parliament, in addition to constitutional authority over the make-up of the
judiciary. This scenario is indeed the very kernel of the agenda of Kenya’s
current process of constitutional reform.

The Commission will need to undertake a careful study of the several
possible executive leadership scenarios: (i) the single leadership vested
in an Executive President elected by the people and essentially accountable
to the voters; (ii) a diverse executive leadership, with President and
Prime Minister, with executive powers either remaining with the President
(eg. Uganda, Zambia, etc) or with the Prime Minister (eg. India,

Ethiopia, Germany, etc); (iii) a French-style Presidency with a fixed
Septennal, with a Prime Minister responsible to Parliament; (iv) a South
African type – of Presidency in which election is by Parliament, but the
President is an executive President; (v) an enlarged team at the top, with
a President, one or more Vice-Presidents, a Prime Minister with one or more
Deputy Prime Ministers

These possibilities should be carefully considered and expressed in simple
language, so as to facilitate the enlightened expression of opinion by the
people as the Commission consults with them. The explanations should set
out both strengths and weaknesses of the several alternatives, and the
people should be given abundant opportunity to indicate their preferences.
They should be encouraged to give reasons for their preferences.

The Constitution as it stands today carries potential conflicts regarding,
firstly, the mandate to establish Government Ministries, and secondly, the
prerogative to hire and fire in the civil service. Should it be for the
Executive to determine the number, name and remit of Government Ministries,
or should this be done by parliamentary enactment? Should the Executive
Head have the fullest freedom in hiring and firing, or should this matter
be handled by independent agencies established under the Constitution?

v) Constitutional Interpretation and the Judicial Hierarchy

It is not clear today, under the Constitution, whether the highest court,
namely the Court of appeal, has a final authority in constitutional
interpretation. The term “constitutional court” is used loosely and largely
informally to refer exclusively to the High Court of Kenya, which falls at
the second level in the hierarchy. This confusion must be removed. The task
should involve an inquiry into the concept of a Supreme Court. Should there
be one? What should be its size? What volume of work is it likely to have?
How should it relate to the other courts? Should there then be a Court of
Appeal? What should be its size? How should it conduct its operations? What
should be the size of the High Court Bench?

vi) The Foreign Affairs Power

As the globalisation process proceeds apace, Kenya has to deal with
numerous states, International Organisations and other international
bodies, largely within the framework of treaty law. Such law must be
negotiated, signed and adopted, ratified, and implemented within the
national jurisdiction. This means that the acts done with regard to treaty
law “out there” have implications for Kenyan constitutional processes
involving her Executive, her- Parliament and her Judiciary. Now although
the exercise of the foreign affairs power is so intrinsically
constitutional in character, up till now this subject has virtually been
left entirely in the hands of the Executive, without any substantial
constitutional provision nor any detailed scheme of legal regulation. The
Commission should now consider whether or not certain clear procedures
regarding the foreign affairs power should be set out in the Constitution.
Specific questionnaires may be formulated for eliciting public opinion on
this matter.

vii) Emergencies — Natural and Human — originated

Ever since the wave of political reform set in, in the early 1990s, the
position of emergencies has been thrown into disarray. No country can
permanently exclude the occurrence of emergencies, and particularly natural-
disaster emergencies — such as earthquakes, crippling droughts, large –
scale flooding, outbreak of epidemics and pandemics, etc. Whenever such
things occur, quick protective action must be taken by Government. To some
extent the Executive can work closely with Parliament, in such situations;
but most of the time the Executive must take responsibility for decision-
making. Of course, the danger of abuse of power in those situations is ever
present. Therefore, the Commission should work towards incorporating in a
new Constitution a progressive, workable and effective law on natural
disaster emergencies. This must be expected to give certain definite
empowerment to the Executive, subject to well designed control devices.

But we should note that the kind of progressive and people-oriented
constitution that we contemplate, which is to be the purveyor and reinforce
of democratic principles, on account of its openness, visibility and
predictability, always opens the door to the “bad guy” who wants to defeat
it and to steal the power of governmental control. We are all familiar with
military coups, large-scale political insurrections and secessions in
Africa (eg. Republic of Congo; Republic of Somalia, etc). Such developments
create human-originated emergencies, in the course of which serious harm to
life and limb may come about, to the grave detriment of the people who are,
by a new Constitution, seeking to achieve democratic governance in the
context of constitutionalism and the rule of law.

The Commission will need to provide in their report for clear procedures,
for dealing with such emergency situations. The guiding principle should be
to ensure that any special empowerment reposed in the Executive is counter-
balanced by responsible consultation procedures involving the National
Assembly, and leaving room for judicial adjudication.

viii) Multipartyism and Collective Cabinet Responsibility

Parliamentarianism is now an essential element in Kenya’s constitutional
heritage. But this system, traditionally, has been integrally lodged into
the multiparty system. The multiparty system may, perhaps, now be regarded
as an evolving fixed principle of Kenyan constitutional practice. Yet,
considering that we have at the moment more than 40 registered political
parties we must recognise that virtually none of them could have the
desired constitutional impact and functioning. Unless the number of these
parties falls to two or three or four or five only, the essential political
environment for Kenya’s Parliamentarianism could only be provided by the
coalition system, in which constellations of parties could claim legitimacy
as the basis of control and exercise of executive power subject to
parliamentary control.

The Commission, therefore, needs to consult with the people on the subject
of party coalitions, and to have suitable provisions on the subject made in
their final report for constitutional reform.

The concept of collective cabinet responsibility, which is provided for in
Sections 16 and 17 of the present Constitution, needs to be re-visited by
the Commission. For parliamentary government to function properly, the
cabinet must stand or fall together, but its binding formula cannot be the
prescription of the Constitution, as this will defeat the voluntariness of
party formation and party alignments in and outside Parliament. A party in
government, or any constellation of parties in government, should recognise
that their unity purposes of holding the reins of power is a political and
not a juridical act. Only this recognition will enable the National
Assembly as a constitutional entity to play its check-and-balance role in
relation to the Executive’s exercise of power.

Linked to this question is the no-confidence vote and the censure vote.
Some have argued in Kenya’s media that the calendar of Parliament should be
determined by law, and that there should be no occasion for a sudden
dissolution, or even prorogation. It we adhere to the recognised
parliamentary tradition, then we cannot abolish Parliaments power to bring
a no-confidence or censure vote against the Executive and to terminate the
life of the Executive any time. Yet if this position prevails, then the
Executive’s power to prorogue or dissolve Parliament cannot also be
abolished.

The Commission should consult with the people of Kenya, on whether we want
to keep the parliamentary heritage, or whether we want to go the American
style of separation of powers in which Congress runs through its full term
and the President and his Vice-President remain office assuredly up to the
end of their four year terms.

viii) Second Chamber

Generally, second parliamentary chambers are an inseparable concomitant of
federal constitutional structures. This is because the disparate interests
to be protected in the federal states, must also have a forum of expression
at the national level, hence the Senate to represent the federal units or
the provinces, etc. Such was also the case under Kenya’s Independence
Constitution which provided for semi-federal Regions. However, second
chambers can be adopted independently of federal systems — as is the case,
for different historical reasons, with Great Britain’s House of Lords.

It will be in order for the Commission to canvas with the Kenyan people the
need for a second parliamentary chamber. There may be a good case for it,
dependent on the social vitality of such interests as it may come to
represent,

ix) The Law of Citizenship and the Issue of Sex Discrimination

The Commission will need to address the law of citizenship, as contained
both in the Constitution and the Kenya Citizenship Act. Although the
Constitution gives protection against sex discrimination, it (and the Kenya
Citizenship Act) results in discrimination against Kenyan mothers who,
while abroad, have a child with foreign fathers, as their issue are not
regarded as Kenya citizens. This does not apply where the child is born of
a Kenyan father who is a broad and a foreign mother.

One other area of the citizenship law calls for the Commission’s attention.
Section 94 of the Constitution empowers the minister to deprive a person of
citizenship, in those cases where citizenship was obtained through
registration or naturalisation. In this case the Minister acts on his or
her own judgement as to whether the person in question “has shown himself
by act or speech to be disloyal or disaffected towards Kenya”, inter alia.

The Commission should consider the full meaning and effect of the concept
of citizenship. Should any citizen be exposed to the risk of loss of
citizenship, just on account of the category of his or her citizenship?
Should the categorisation of citizenship be a constitutionally relevant
matter in the people’s access to the State’s protection? Or in relation to
occupancy of particular public offices, etc? The Commission should
deliberate upon this question and should, if possible, seek the people’s
opinions on it.

x) The Fundamental Rights Provisions of the Constitution

In the last decade or so, a number of international legal instruments have
been adopted (to some of which Kenya is a Party) which introduce new
fundamental rights. Relevant examples are the United Nations Convention on
the Rights of the Child (1989);

and the African Charter on the Rights and Welfare of the Child (1990). The
Commission will need to identify such Conventions and to endeavor to draw
from them such elements as would serve to enrich our constitutional law on
the fundamental rights of the individual.

There has also been judicial pronouncement on the modalities of enforcement
of fundamental rights under the Constitution. The Commission should
consider whether such rights should be “self-executing”, or whether their
enforcement should be contingent on certain decisions and acts taken or
done by particular officers of the State.

xi) Nomination of Members of Parliament

The rationale of Parliament as a constitutional organ is that it is
representative of the people. Election, therefore, ought to be the sole
path leading to membership of Parliament. However, in Kenya’s
constitutional history right from the later years of the colonial period, a
certain number of legislators have earned their membership through some
mode of appointment.

The Commission will need to return to this question and to take the
people’s opinion about it. The nomination of some parliamentarians
obviously compromises the elective principle and, furthermore, Kenyan’s
experience has not yet raised a rational and generally – agreed basis for
the nominations that have been made in the post-independence period.

xiii) Should the Attorney-General be a Public Officer Holding a
Constitutional Office, or should he be an Elected Member of Parliament?

Kenya’s Constitution has held on to certain well established principles of
the British Constitution. One of these is the regular parliamentary
elections. Another is the centrality of Parliament in relation to law-
making and to financial approvals. But one clear departure from the British
tradition has been the protection of the office of Attorney-General by the
Constitution rather than treating this office as a purely political office
to be occupied by a “minister” appointed by the Prime Minster from the
government party team that wins election at the polls. In Britain, both the
Attorney -General and the Solicitor-General are MPs and are assigned these
responsibilities on the basis of their known competence and their potential
resourcefulness within the Government-ruling party team.

Now although Kenya’s Attorneys-General are accorded constitutional tenure
and are members of Parliament and chief legal advisers for Government at
Cabinet level, they were not candidates for election and have attained
their positions purely by appointment. This means they sit astride the
political stall and the professional public service stall. Experience has
shown that this duplicity is not readily understood by most people, apart
from standing potential risks of compromising either the constitutional,
public service mandate or the political expectations. The Commission needs
to give further thought to : this issue, and to elicit the people’s
opinions on the matter.

xiv) The Electoral Process

The integrity of the electoral process is fundamental to the success of •
parliamentary democracy. A critical organ in the conduct of national and
local elections is the Electoral Commission, which is provided for in
Section 41 of the Constitution. It is possible that this Commission is far
too large for efficient operations, quite apart from the fact that the
criteria for service as an Electoral Commissioner may need to be carefully
considered. So many times during elections, accusations have been made
against the Commission, with charges that free and fair elections were not
realised. It will be necessary for the Commission to reconsider the
composition and functioning of the Electoral Commission, and consultations
with the people on this subject will be necessary.

xv) Public Finance

Virtually every year the Controller and Auditor-General has made critical
reports on the management of public funds. But any “control” through such
reports has been too late, because misappropriations or over-expenditures
had already taken place quite a while back. It will be necessary for the
Commission to have another look at Chapter VII of the Constitution, which
provides for parliamentary control over public finance. The people should
have an opportunity to make their contribution in this matter.

xvi) Land and Other Natural Resources

The broad natural resource question should be taken together with
environment and environmental rights. The environment not only provides
essential life’s amenities, but also gives vital resources for the social
welfare of the human being. Kenya is already party to large number of
international environment conventions which impose a duty to protect the
environment and its resources. The Commission should give attention to the
subject “environmental rights”, and consult with the people to the intent
that certain provisions be included in the reformed Constitution regarding
right to environment. It should be noted, in this regard, that every one of
the new-generation African Constitutions has made provisions for
environmental protection and the quest for sustainable development.

As regards land specifically, Chapter IX of the present Constitution is
devoted to “Trust Land”, to the exclusion of other categories of land. The
Commission needs to consider whether land as such should be provided for at
all, in such detail, in the Constitution. Would it not be appropriate to
deal only with fundamental juridical issues such as property rights in
general, but leave the details of land law to ordinary statutes? The
Commission will need to take the views of the public on this issue.

xvi) Public Office-holding and Transitional Arrangements

In the relatively monolithic constitutional order of the 1960s, 1970s and
1980s, there was an apparent reluctance to make free-flowing power-change
arrangements within the Constitution. On this account, the element of luck
has been depended on, to secure that opportunistic disruptions do not occur
at times of change of leadership. Older countries such as the USA, the
U.K.. and others have practically fail-safe arrangements for orderly power
transfers. The Commission should draw lessons from these countries, consult
with the Kenyan people, and propose sound power – transfer arrangements
that will guarantee stability and continuity in existing democratic
structures.

xvii) Possible Creation of a New Check – and – Balance Institution —
Ombudsman

Several commissions or committees have since the early 1970s recommended
the establishment of an Ombudsman institution in Kenya. However, the play
of politics throughout this period has not favoured the Ombudsman idea, and
indeed all debates on the subject have not been conducted with the
advantage of the full facts regarding the merits or demerits of the
institution.

The Commission needs to conduct and facilitate an open debate on this
matter. It should take the people’s opinion and make appropriate

The Ombudsman institution has existed in the older nations for many years:
in the Scandinavian countries; in Great Britain; in New Zealand, etc. Even
in the countries of Africa the Ombudsman has been generally accepted, and
this public institution is well established in Tanzania, Uganda, Zambia,
etc.

The essential purpose of the Ombudsman is to check administrative abuses
which take many forms, including incompetence, discourtesy, dilatoriness,
rudeness, denial of service, corruption in public office, etc. In most
developing countries such as Kenya, the ordinary person finds himself or
herself completely helpless before the powerful, secretive and faceless
bureaucrats. Indeed, most of the injustice the common person ever comes
across is at the hands of administrators. Unfortunately, there is no ready
access to the judicial process for these wrongs.

The institution of Ombudsman is a clear option in any scheme for remedying
the sufferings of the common person who has to deal with administration.

In the event that the Commission finds it to be the view of most people
that the Ombudsman institution be set up, consideration will have to be
given to the best way of providing for it in the Constitution. The
structure of this institution would have to be formulated in such a manner
as would give effectiveness; and a decision would have to be taken as to
the reporting procedure for the Ombudsman, and the sanctions to be attached
to the decisions of the Ombudsman.

5. Concluding Remarks

The object of this paper has been to contribute to the Commission’s
definition of its work agenda as it discusses the path of reform with the
people, in accordance with its mandate. Some of the potential matters of
reform are rather technical in nature, and soliciting the public’s view on
them may prove problematic. It will be desirable that the Commission
formulate simple questionnaires addressing the various areas of concern,
and it should then communicate the specific questions to members of the
public who will state their preferences in clear, specific responses. On
the basis of such consultations it will be possible to determine the more
popular position on the respective constitutional issues. The popular
opinion should then guide the Commission in the formulation of a draft
constitution.