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Constitution of Kenya Review Commission |
By Mr Mutakha Kangu (Commissioner CKRC)
15-09-2001
The point of departure in this paper is the recognition of the fact that the project and process of dismantling the Independence Constitution as is detailed by Professor H.W.O Okoth-Ogendo, in his 1972 paper "The Politics of Constitutional Change in Kenya since Independence 1963 - 69" had as one of its main purposes; to move away from the decentralized system of government to a centralized one. It was to dismantle the Semi-Federal regional system - which right from the beginning KANU found unacceptable and install a unitary state. This comes out clearly in Professor Okoth-
Ogendo's paper when he says that.
"The major themes to be discussed will be centralization, stability and legitimization on the one hand; and political survival, public participation and succession on the other"
On the other hand Professor J.B. Ojwang in his paper, "Constitutional Trends in Africa - The Kenya Case" emphasizes this project of creating a unitary state as having been KANU's main agenda right from the beginning in the following terms;
"The KANU Government led by Kenyatta, had been opposed to Semi -Federalism from the very beginning, and with the fractious Multi-party system gone, it now felt that it was in a position to gain the necessary Public and Parliamentary support for the creation of a Unitary Constitutional set-up, with but one Legislative Chamber. They succeeded and it took seven separate amendments, in a period of three years, to establish a single-chamber National Assembly".
In this project and process of centralization, Unitarism was understood and intended to mean and assume, not only a horizontal but more importantly, a vertical connotation or dimension. There was going to be double or even triple centralization in Kenya. Centralization in Kenya was meant to operate at three different levels:-
1. There was going to be centralization affecting the two levels of government; the central level and the regional level. Power was meant to move from the regions back to the center. Consequently, all the provisions for regional Legislative, Executive and Financial powers were done away with.
2. There was going to be centralization in each of the organs of state and other institutions of governance. As a result, the dual arrangements at the Executive and Legislative levels were done away with. The Bicameral Legislative arrangements were removed and the hitherto two houses of Senate and House of Representatives collapsed into one House, the National Assembly. On the other hand the dual executive comprising of the Governor-
General, as Head of State and Prime Minister, as Head of Government were also ensconced into one Office of the President. At the political party level, there was also centralization by way of a move from the hitherto multi-party system to a de facto one party system.
There was also going to be centralization at the level of the three organs of state and other institutions of governance. Power had to move from all the other organs of state to the executive. Where the executive could not take over the powers of the other organs, it had to ensure effective control of those organs. The consequence of this double or triple centralization in Kenya was that power was centralized not just in the executive, but in-fact a Unitary and individualized executive. This meant centralization of power into the hands of a single individual. Indeed one of the first amendments to the 1963 Constitution was meant to and did create a Unitary Executive. As earlier noted, it did away with the dual system of executive and ensconced both offices of Governor - General and Prime Minister into one Office of the President. Professor J.B. Ojwang in his paper "Constitutional Trends in Africa - The Kenya Case" emphasizes this perception of centralization in the following manner;
"An entirely new pattern of executive leadership emerged. A President who is both the Head of State and Head of Government, combining the formal role of the monarch or Governor General with that of the Executive Prime Minister. A President responsible mainly to the nebulous national electorate and, more indirectly, to a Parliament of which he is also a sitting member. A President who assumes office without the direct approval of either the electorate or the legislature. The new Presidency starts from a position of a special privilege and political authority. The Constitutional document itself designates a particular individual, and this is the holder of the totality of constitutional executive authority. This individual is strategically positioned inside the National Assembly from which he may steer in's business of government"
By the year 1969, therefore, the project and process of creating a unitary state had been finalized and all that remained was to strengthen this unitary state. This creation of the unitary state was concluded by the putting in place of a completely new constitutional document. This was done by the Constitution of Kenya (Amendment) Act No. 5 of 1969 which consolidated all the Constitution as at February 1969 in to a revised Constitution for Kenya in one document that was declared, to be the authentic version.
Having come this far, the subsequent amendments to the Constitution were meant to strengthen the unitary state already in place and shall therefore be discussed from this perspective. Given a chance the unitary executive could easily have wanted to complete the project by abolishing all other institutions and putting all their powers in the hands of the unitary executive. However, because this could not be done, and because the conversion of all these other institutions into unitary status was not assuring enough, the unitary executive by subsequent amendments sought to control these other institutions through all manner of ways. These included the legislature Judiciary, political parties and the public service.
Control of the Legislature
To strengthen the Unitary State - read the Unitary Executive; the Executive sought to place the Legislature under the control of the Executive. The first and most important mechanism of doing this was to ensure that the executive controlled the electoral process through which the Legislature is generated. In this connection the 1969 amendment which consolidated the constitution into one document also put the Electoral Commission under the absolute control of the President. This amendment changed the membership of the Electoral Commission by making all its members appointive by the President. Hitherto, the President did not have this kind of control of the commission since the speakers of both the Senate and House of Representatives were automatic members. The purposes of controlling the electoral process was to ensure that the composition of the Legislature is of a people acceptable to the executive and therefore manipulable by him.
In 1975, the Executive by another amendment went further to ensure that the Executive brought to Parliament whoever he wanted regardless of his moral or ethical standing. The Constitution of Kenya Amendment Act NO. 1 of 1975, the so-called Ngei Amendment extended the Presidential Prerogative of Mercy to include annulling of the report of an election court, following an election petition, where an election offence had been proved. This was a further interference with the electoral process aimed at bringing Mr. Paul Ngei to Parliament regardless of the finding by the Election Petition Court.
A tight control on who comes to Parliament was a very important tool of strengthening and maintaining the Unitary State. In this regard the political party became a handy instrument. In this regard, Clauses in the party Constitution were used to ensure that there were no competitive elections for the office of the President. When President Kenyatta died in 1978, such Clauses were employed to enable President Moi sail through without any opposition. Pursuant to a Clause in the KANU Constitution providing for a single party President who would also be Head of State, candidates in the presidential election were constitutionally, required to be nominated by a political party. This meant a KANU nomination since this was the nations only party. A full cabinet meeting on September 1 adopted a resolution endorsing Vice-President Moi as President. For parliamentary elections it was also required that candidates must be members of KANU, and approved by KANU's National Governing Council. When this Council met to approve candidates, 23 of them including Oginga Odinga who had rejoined KANU had their applications rejected.
When threats of some of these rejected candidates pointed in the direction of a possibility of their forming another party, this avenue had to be solidly sealed once and for all. Hence the 1982 Amendment Act No. 7 which introduced a section 2A that made Kenya a de-jure one party state.
Kenya would ensure complete control by the Unitary executive on who comes to Parliament.
Looking at the large number of Cabinet Ministers and other Members of Parliament who lost their seats during the 1983 snap elections, one realizes the strength and value that lies in the ability of the Unitary Executive to dissolve Parliament and call elections any time he deems fit.
Notwithstanding the 1982 de jure One Party State Amendment, it was realized that there was need for further controls within the party to avoid unwanted elements sneaking their way into the Legislature. Once again the party nomination procedures became the most handy tool to be used. These were changed to introduce the 1986 queue-voting nomination procedure that was used to lock out quite a number of unwanted people thereby ensure that the Unitary Executive's control over the Legislature.
Control of the Judiciary
To strengthen the Unitary Executive and ensure its survival, the Executive had to control all the other institutions that it could not swallow through centralization. In the case of the Judiciary the first attempt of controlling it was through The Constitution of Kenya (Amendment) Act No. 7 of 1984 took away the right of appeal from anybody challenging the validity of the election of a Member of Parliament. The High Court in this regard was made the final Court as concerns determination of questions of membership of the National Assembly whether its decision was final or interlocutory. But perhaps the most far reaching in this regard was the Constitution of Kenya (Amendment) Act No. 4 of 1985, which removed the security of tenure of the Judges of the High Court and Court of Appeal.
Controlling the Party System
As already pointed out, the political party system was one that had to be controlled and used by the Executive to maintain his hold on the Unitary State. In the first instance, Unitarism had to be seen even at the party level. Consequently by 1969, there was already a de-facto one party state. By way of approval of candidates and nominations of the same as was seen in 1978 in the case of the Presidential and Parliamentary elections, and 1986-
87 by way of the new queue-voting nomination procedure, and by way of the harsh disciplinary measures handed down by the party disciplinary committee in the mid 1980's, the party became a very important and effective tool for strengthening the Unitary State and maintaining the Unitary Executive in power. The use of the party was enhanced following the 1982 declaration of a de-jure one party state. This meant that a one-party system had become a matter of Law and that therefore, anybody attempting to form any other party would be committing an illegal act. Indeed this had the effect of criminalising such attempts.
An attempt to form a party could easily amount to treason. It is therefore no wonder that after this kind of criminalisation, security of tenure was taken away from the office of the Attorney General, Controller and Auditor General and the Public Service Commission. One may rightly argue that this was necessary so as to make it easy for the Executive to sue the Attorney General to bring changes against perceived enemies.
Control of the Public Service
The Public Service was also marshaled in to this project of strengthening the Judiciary. It had to be brought under the Executive and controlled by him. This started with the 1982 Amendment which created the office of Chief Secretary who was going to be the Head of the Public Service and exercise supervision of the office of the president and general supervision and coordination of all departments of Government. The Chief Secretary was under the control of the office of the President and through him therefore the President was able to control the entire public service. It is interesting to note that when in 1986 this office was abolished all the powers under this office were transferred to the President who then had the power to appoint such number of Permanent Secretaries as he determined. This put the President in an even more powerful position vis-?-vis the Public Service. Then there was the concept of all public servants holding office at the pleasure of the President.
Reversing the Trend
By the early 1990's, It was becoming clear that the Unitary State and or Executive were not going to maintain itself unchallenged. Eventually, it gave in and started reversing the early trend of strengthening the Unitary State. A number of amendments that were meant to strengthen the Unitary State have since been reversed. The Judges, the Attorney General and the Controller and Auditor General have been given back the security of tenure. Whether at the practical level this is real it is not an issue here. But the most fundamental reversal was the repeal of Section 2A in 1991 re-
introducing Multipartyism. Unfortunately and because of the failure by those concerned to address the Fundamental issues, this repeal has had the effect of re-introducing Multipartyism or power sharing in the Legislature while the executive remains Unitary as the winner can still take all. The current review therefore, ought to focus on all of these fundamental issues.
In conclusion, it is important to observe that a very interesting tendency has been noted in the Kenyan Constitutional development and governance tendencies and tactics. The tendency to chose which institution to use when need arises to serve the persona] and individualized Executive. For instance, when in the 1960's Kenyatta found it difficult to control and rely on the party and the Legislature, he shifted power to the civil or public service, particularly the Provincial Administration to serve his own personal interests. As he relied on the public service he sought to control or even kill the party and the Legislature. This led to the detention of Martin Shikuku when he complained that someone wanted to kill Parliament the way he had killed the party.
When President Moi took over in 1978 and found out that most of the members of the public service could not be loyal to him, he shifted power to the party which eventually became a very strong instrument of governance. It was so strong that the courts in the mid-1980's could not have the courage of questioning what the party had decided. When multi-party ism was introduced the executive shifted from the party and went back to the public service for use. This may explain why the IPPG reforms notwithstanding, the provincial administration has continued to disrupt meetings with impunity.
Conclusion.
The story of Constitutional developments in Kenya has disclosed two phases. These are; a phase under which the focus was on the dismantling of the Independence Constitution to create a Unitary State. And two, a phase under which the focus was on the strengthening of the Unitary State. In these two phases, Unitarism was taken as being the creation of an individual and Unitary Executive. This concentrated all power in the person of the President which explains why the focus of most Kenyans today is on the office of the President which they complain has too much power. The questions that this commission must therefore deal with are numerous. Should the business of review be a reversal of this situation? Should it be a dismantling of the Unitary State? Should the review merely involve a reverting to the 1963 position or should it do more? If it should do more, what more should it do? Why was it easily possible to dismantle the Independence Constitution? How best can we guard against the risk of a similar dismantling of a new constitutional dispensation? It is interesting to note that when the struggle for change started in the early 1990's, it was on the platform of .FORD, the Forum for the Restoration of Democracy. We need to find out, at what stage of our constitutional development did we have democracy, which we must restore.