FOREIGN INFLUENCE IN THE MAKING OF KENYA’S INDEPENDENCE AND
SECOND LIBERATION CONSTITUITIONS: 1960-2010.
KIMUYU MULWA
A Research Project Submitted to the Department of Philosophy, History and Religion in
Partial Fulfillment of the Requirements for the Award of Bachelor of Arts (History)
Degree of Egerton University.
Egerton University.
October 2015
1
DECLARATION AND RECOMMENDATION
DECLARATION
I, Mulwa Kimuyu, declare that this project is my original work and has not been submitted
either wholly or partially to this or any other learning institution for award of any certificate,
diploma or degree.
Name: Kimuyu Mulwa
Reg No: A14/32070/11B
Signature ………………….
Date………………………..
RECOMMENDATION
Recommendation by supervisor(s)
This research project has been submitted for examination with my approval as university
supervisor.
Name: Dr. Dorothy Nyakwaka
Signature……………………..
Date………………….
i
ABSTRACT
This project examined the constitution- making processes in Kenya with an intention of exposing
all sorts of foreign influence in the drafting and adoption of the Independence and the Second
Liberation constitutions. The imposition of Western political will upon the less developed
countries has been due to dependence and the ‘to-be-like’ syndrome. Economic and military
dependence yielded much foreign influence through aid, loan and security conditionality by the
West. The need also to attract foreign capital and investment has led to enactment of
constitutional norms in favor of such endeavors.
Kenya like many other African countries has confirmed to be like their imperial masters. This
colonial inheritance is evident in the structure of government established at independence, for
instance the bicameral parliament, institution of a Supreme Court and separation of powers.
The developed world uses economic sanctions, diplomatic isolation and ethnocentrism to ensure
that their norms penetrate into Kenya’s constitutions. Through ethnocentrism the developed
countries strive to manifest that their ideals such as democratic representation and presidential
term limits and multi-partism are the best practices which Kenya has been influenced to emulate.
The conceptual framework adopted includes the Coercive, Competition and Globalization
theories which best explain how various norms adopted in the Kenyan constitutions were foreign
in origin. The Superstructure and Learning theories were dropped as irrelevant concerning the
problem of study.
The methodology used in the study was basically content analysis. This involved the
interrogation of secondary sources of information. This research project will benefit statesmen,
law and policy makers. It is also of great significance to legal scholars and the posterity in
general for it adds crucial knowledge to the field.
ii
Table of Contents
DECLARATION AND RECOMMENDATION .......................................................................................... i
ABSTRACT.................................................................................................................................................. ii
LIST OF ABBREVIATIONS/ACRONYMS ............................................................................................... v
CHAPTER ONE ........................................................................................................................................... 1
INTRODUCTION ........................................................................................................................................ 1
1.1 Background of the Problem ................................................................................................................ 1
1.2 Statement of the Problem .................................................................................................................... 2
1.3 Research Objectives ............................................................................................................................ 2
1.4 Research Premises .............................................................................................................................. 3
1.5 Significance and Justification of Study ............................................................................................... 3
CHAPTER TWO .......................................................................................................................................... 4
LITERATURE REVIEW ............................................................................................................................. 4
2.1 INTRODUCTION .................................................................................................................................. 4
2.2 Common Features of the Independence and the Second Liberation Constitutions. ............................ 7
2.3 Theoretical Framework ....................................................................................................................... 7
2.4 Scope and Limitation. ......................................................................................................................... 9
CHAPTER THREE ...................................................................................................................................... 10
RESEARCH METHODOLOGY ................................................................................................................ 10
3.1 Study Area ..................................................................................................................................... 10
3.2 Research Design ............................................................................................................................ 10
3.3 Data Analysis and Interpretation .................................................................................................. 10
CHAPTER FOUR ................................................................................................................................... 11
RESEARCH FINDINGS AND DISCUSSION .............................................................................................. 11
4.1 Defining a Constitution ................................................................................................................. 11
4.2 The Constitution Making Process in Kenya. .................................................................................. 11
4.3 Common Features of the Independence and Second Liberation Constitutions and the
Implication .......................................................................................................................................... 14
4.4 Foreign Influence and its Impact on the Constitution. ................................................................. 15
CHAPTER FIVE ........................................................................................................................................ 19
Recommendation and Conclusion .............................................................................................................. 19
APPENDIX A ......................................................................................................................................... 20
1963 KENYA CONSTITUTION (INDEPENDENCE CONSTITUTION) ....................................................... 20
iii
APPENDIX B ......................................................................................................................................... 22
THE 2010 CONSTITUTION OF KENYA ................................................................................................... 22
REFERENCES ........................................................................................................................................... 24
iv
LIST OF ABBREVIATIONS/ACRONYMS
4Cs- Citizens Coalition for Constitutional Change.
CKRC - Constitution of Kenya Review Commission.
FIDA- International Federation of Women Lawyers.
ICJ-Kenya - The Kenya Branch of the International Commission of Jurists
IMF - International Monetary Fund.
KADU- Kenya African
Democratic Union.
KHRC - Kenya Human Rights
Commission .
KANU- Kenya Africa National
Union.
LSK- Law Society of Kenya.
MNCs -Multinational Corporations.
NARA- the National Accord and Reconciliation Act.
NGOS - Non Governmental Organizations.
UN - United Nations.
USA- United States of America.
v
CHAPTER ONE
INTRODUCTION
1.1 Background of the Problem
Kenya was declared British protectorate in 1886 but she became a British colony in 1920 when
company rule was replaced with direct crown administration. As a protectorate issues concerning
the sphere of the influence revolved around the Imperial British East Africa Company.
However, after becoming a colony the colonial state was governed by a governor—general who
was answerable to the colonial secretary based in Britain.
The colonial state with time developed the three arms of government that is the executive
council, judiciary and a legislative council. Surprisingly, constitutional developments in the
colonial state reflected the interests of the minority whites. Legislation was racist, discriminative
and aimed at exploiting African natives. This was because African representation was not
allowed in the government until very late. Although the 1923 Devonshire White Paper declared
that African interests would remain paramount in case the alien races held conflicting interests,
this was ironic because subsequent legislations tended to discriminate against the native.
The Lennox-Boyd and Lyttleton constitution of 1957 and 1954 respectively are examples of such
utter dictation by the crown through then colonial secretaries. Even the Macleod constitution of
1961 was a mere foreign legal framework. Imported set of rules and principles were used to
govern the colonial state. Still during the popular Lancaster House Conferences which were held
in London and Marlborough between 1960 and 1963, foreign influence was employed by the
imperial power in order to safeguard their interests in post-independence Kenya.
The research was therefore, to critically and analytically study the Independence and Second
Liberation constitution- making processes in an attempt to discover and explain any foreign
manipulations present.
1
1.2 Statement of the Problem
Many African countries would claim that they are independent political entities but this is not the
case. External forces keep on infringing upon their sovereignty and dictation by the West is
evident in most states. For example, in Kenya and Zimbabwe in 2008 and 2009 respectively,
Western-appointed governments were founded after disputed elections. This was achieved
through economic and diplomatic intimidation.
In both cases, a coalition government was created with the institution of Prime Minister being
introduced. In the Kenyan case, the National Accord and Reconciliation Act had to supplement
the constitution after striking the power sharing deal between the Kibaki and Raila rivaling
factions. The coalition government would later turn into a raw deal for the premier as he
continued to cry foul by the presidency as an equal partner. It destabilized the activities of the
government thus inhibiting development pace in both countries.
Political and economic influence from the international community especially the United States,
European Union and Canada is not a recent phenomenon. In the research the United Nations was
considered as foreign influence because it functions or plays the agency role of the developed
world. The research therefore, endeavors to critically study and evaluate this foreign factor
specifically in the making of Kenya’s constitutions.
1.3 Research Objectives
This research will strive to realize the following aims:
i.
To examine the two processes on the making of the independence and the second
liberation constitutions.
ii.
To investigate the influence and role of the international community especially the
developed world in constitutional matters.
2
iii.
To access the impact, if any, of foreign manipulation in the implementation of the two
constitutions.
1.4 Research Premises
In line with the above stated objectives, the research will be conducted under the following
research
i.
The developed world uses economic and military threats to impose their political will
upon the developing states.
ii.
The adoption of foreign constitutional norms hinders efficient implementation of the
constitution thus leading to immediate amendments.
iii.
Common features in both constitutions are as a result of foreign dictation or imitation.
1.5 Significance and Justification of Study
The findings of the research will add new knowledge to the field of political history of the
country. This knowledge will be of valuable importance to the government especially the lawmaking body. It will be useful to legal scholars who might wish to engage in further inquiries
about Kenya’s constitutional development.
It will sufficiently inform the citizenry of this great nation and also serve the posterity with a
prelude understanding of their constitutional history. If carried out, therefore, the research will
enlighten the leadership.
3
CHAPTER TWO
LITERATURE REVIEW
2.1 INTRODUCTION
This chapter gives an overview of the available literature on the constitutional history of Kenya.
It also provides the selected conceptual framework which will guide the study.
There is a large literature on Kenya’s political history which covers colonial and postcolonial
periods. However, scholars have placed great emphasis on party politics, ethnicity, nationalist
struggles, poor governance, diplomacy, foreign policy. Very little has been written about the
topic of research which will be carried out. Literature which is available on constitutional
development speaks about the various amendments introduced to the independence constitution
through the ordinary legislative process. Therefore, the issue of work with the seriousness it
deserves.
Nevertheless, some sketchy coverage is available especially under the topics of foreign policy
and political economy. For example, Walter Oyugi et al1. Lightly mention how economic
dependence and, military assistance have been utilized by state and non-stated actors to impose
their will upon the country’s governance. In this union countries. Non-state actors include the
International Monetary Fund (IMF) and the World Bank. Oyugi and his co-authors have
mentioned multinational corporations (MNCs) as perpetuators of dependence because of their
monopolistic nature.
4
It has been argued that threats of economic sanctions and diplomatic isolation were, for example
used in 1990’s to persuade Nyayo regime to allow multiparty system , restore the judicial
security of tenure and improve on human rights record among other constitutional requirements.
These constitutional norms were enshrined in the independence constitution. After all, president
Moi had given in to these demands.
However, many scholars have maintained that the independence constitution had not grown out
of society but was instead imposed by the colonial master. For example, Makau Mutua and A.
Thompson2 maintain that the constitution was a foreign dictation. According to Collins Leys, the
Kenya African Democratic Union (KADU) had the support of the minority Whites during the
Lancaster House conferences. Most of KADU’s proposals were passed and included in the
Independence Constitution. The rival party, the Kenya African National Union (KANU)
accepted the Lancaster House document because of several reasons3.
KADU stood for a regional system of government and strict protection of private property. The
settler community favored such norms because they felt secure under them. On the other hand,
KANU advocated for a unitary state and radically agitated for transfer of land to Africans
without compensating the whites. KANU gave in the demands of KADU because it hopped to
charge things immediately after independence.
Although it is argued that the Independence Constitution was imposed, no studies have been
carried out to explain why the Second Liberation Constitution came to adopt most features
rejected by the Kenyatta regime after independence.
Makau Mutua’s Quest for Democracy gives an elaborate coverage of the struggle for the second
liberation. It explains the urge for a new constitutional order up to 2009. Makau presents the
struggle as a tag of war between those for minimum reforms and those who called for complete
overhaul of the old constitutional order. This call for a new constitution began alongside the
wave of multipartism and activism which bore fruits in 2010. Although Makau mentions the role
5
played by the clergy, the opposition and the civil society in the campaign for the new document,
he fails to talk about the role of the international community through intimidation and funding of
NGOs as the agents of foreign will.
Although the process for drafting the Independence Constitution was hasty and short, the second
liberation struggle took almost twenty years with several draft proposals being rejected mainly
by the parliament. The drafting of the Independence Constitution involved selected
representatives from KANU, KADU and the settler community. On the other hand, the second
liberation began about 1991. The first draft constitution was worked out by Kenya human rights
commission (KHRC) in 1993 but was rejected. In 1990’s legal and human rights NGO’s formed
the citizens coalition for constitutional change popularly known as 4C’s. This togetherness was
aimed at producing a powerful force in the struggle for a new legal framework.
The members were the Law Society of Kenya (LSK) the Kenya Human Rights Commission and
the International Commission of Jurists (ICJ-Kenya). Makau has somehow well documented the
process but his work is incomplete because of the failure to account for external forces in the
constitution making process. He could be subjective because he is based and works in the USA
and the United States is a global power which influences the Third World to benefit herself.
The second liberation was a long march indeed through the formation of the Constitution of
Kenya Review Commission by the Nyayo regime and the rejection of the 2005 draft constitution
in a hotly campaigned referendum. The CKRC was chaired by the internationally recognized
constitutional law expert Professor Yash Ghai. The journey culminated in 2010 when the
Kitonga Draft Constitution was passed in a referendum.
In Kenya, economic assistance was diverted from the government to NGO’s and church groups
to weaken government projects and force the government to reform and, or adopt a new
constitutional order. The research endeavors to analyze and disclose these foreign mechanisms.
Kenya’s legal political and philosophical grounds have been criticized for being Eurocentric4.
This is because for instance, Islam has been subordinated. The Islamic factor led to rejection of
the Ufangano, Ghai, Bomas and Wako drafts because of they recognized Kadhi courts, hence
some sharia law.
6
After the literature review the researcher found out that there is need to treat this problem in a
serious work. This is because no earlier writer has concerned himself or herself with this topic in
wide scale.
2.2 Common Features of the Independence and the Second Liberation
Constitutions.
Both constitutions are written types. They are democratic constitutions and share several similar
norms as highlighted below:
i.
Quasi-federation. At independence power was decentralized through seven regional
governments whereas after the second liberation power was developed through fortyseven county governments.
ii.
Bicameralism: in both constitutions the parliament was made up of two chambers; that is,
the Senate and the National Assembly. At independence the government was led by a
prime minister. This was a Westminster parliamentary system, very common among the
commonwealth nations.
iii.
Separation of powers. This was based on the three arms of government. The judiciary
was independent.
iv.
Both documents enshrined a strong bill of rights they protected private property and
minority groups.
v.
They recognized and authorized multiparty democracy.
vi.
Land policy was a sensitive matter in the both cases.
vii.
The institution of a supreme court was also featured in the Independence Constitution.
2.3 Theoretical Framework
Legal scholars have put forward various theories in an attempt to explain how and under which
conditions or circumstances do constitutions of different states all cover the world borrow from
each other. For instance, David Law, a competition theorist, argues that states adopt similar
constitutional norms in order to attract foreign investment.
7
There are four main theories which explain constitutional borrowing and convergence. They are
the Competition theory, Superstructure theory, Learning theory and Coercion theory. The other
relevant theory which can be applied to the study foreign influence on developing countries is
Globalization theory in its political, cultural, economic and technological sense.
Superstructure theories argue that constitutions are endogenous and converge across countries
due to prior convergence and similarity in the countries superstructure. This means that if
religious demographic technological and economic factors of various countries are similar there
is possibility of common constitutional norms among these states. However since the
superstructure for developed and less developed countries have not yet matched this research
will discard the superstructure theory.
On the other hand as stated in the first paragraph competition theories argue that countries adopt
particular constitutional norms in order to attract investment and encourage foreign trade. Such
constitutional norms are likely to attract potential migrants and prevent brain drain. David Law is
a key proponent of the competition theory.
Learning theory argues that constitutional borrowing and convergence is as a result of
intimidation of what is considered best for a country by its judges, statesmen and legislators.
Coercion theory states that adoption of similar constitutional norms by countries results from
international pressure. This pressure is applied in terms of military force, blockades, economic
sanctions or diplomatic isolation. Therefore, offering of foreign aid and signing of trade
concessions can be used to encourage countries to adopt requirements by powerful state.
Multinational corporations play a significant role in channeling the foreign will of their mother
countries.
Kenya is a developing country whose economy is insufficient without foreign aid. The West and
non-state donors like the IMF and the World Bank remain influential in economic and political
matters of the country. Out of the five theories elaborated above only four will be employed in
the research in investigating about foreign influence in the making of Kenya’s constitutions since
independence.
8
Therefore, the conceptual framework will adopt the Learning, Competition, Coercion and
Globalisation theories. These theories will be relevant to identify how Kenya has adopted or
dropped various constitutional aspects since independence up to the promulgation of her new
constitution in 2010.
2.4 Scope and Limitation.
The research encompasses the constitutional norms of the Independence and Second Liberation
constitutions and its main objective is to study foreign manipulation in the drafting and adoption
of laws through the period between 1960 and 2010. The research will concentrate on 1960-1963
and 1990-2010. Therefore most of the intermediate constitutional amendments will be ignored.
For the latter period, that is 1990-2010, the 30 years archival standard of limiting access to
government sources may hinder availability of some important sources of data. It may be also
hard to access some government offices and officials due to their tight schedules and
unwillingness to cooperate.
9
CHAPTER THREE
RESEARCH METHODOLOGY
3.1 Study Area
The constitutions of Kenya are national issues that cannot be limited to an area of study.
However, much significance was given to Nairobi for being the host of the Central government.
The research relied heavily on institutional libraries and the Kenya National Library Services for
access to relevant texts and publications.
3.2 Research Design
The research was descriptive and employed qualitative research methods. The methodology
adopted was content analysis, where relevant sources were critically reviewed and analyzed.
3.3 Data Analysis and Interpretation
The information resulting from the research was analyzed in accordance with the objectives of
the study. The conceptual framework guided the interpretation of the findings of the study. It was
a comparative study that sought to reveal any presence of foreign influence in the country’s
constitutional development since independence up to 2010.
10
CHAPTER FOUR
RESEARCH FINDINGS AND DISCUSSION
4.1 Defining a Constitution
A constitution is a set of laws and rules establishing the machinery of the government of a state
and which defines and determines the relations between institutions, the government and the
governed. The constitution, being the supreme law, requires that citizenry be involved intimately
in negotiating its contents. It is the direct legislation by the people, hence any other contradicting
law is considered void and inconsistent. By this definition it is already clear that the negotiators
of the Independence Constitution had no mandate to do so on behalf of the African natives.
4.2 The Constitution Making Process in Kenya.
Constitutional developments in Kenya since independence can be studied through five phases,
that is;
1. Negotiations on the independence constitution
2. Developments between 1963-1982
3. Constitutional developments in times of political repression: 1982 to 1991
4. The clamour for reforms in the multiparty era of 1992-2010.
5. Implementing the constitution in post August 2010
The first call for self- rule in Kenya happened in 1945 following the first attempt to territorial
nationalism. The formation of the Kenya African Union (KAU) marked an end for ethnic and
issue-based political associations and a call for nation-wide action.
As a result, the Independence Constitution was drafted in a speedy process from 1960-1963. This
period was too short for civic education and enough consultation was not done. This leads to the
obvious conclusion that the African statesmen in attendance were not well informed and did not
represent public opinion. To make matters worse such independence African leaders were not
experts in law. They included Jaramogi Oginga, Tom Mboya, Ronald Ngala and Jomo Kenyatta.
11
During the Lancaster House Conferences the most burning issues included land, the type of
government to be adopted and property rights. Human rights did not take a center stage.
The colonial state had created an African economic and political class of petty-bourgeoisie that
would protect the rights of the Whites in postcolonial Kenya. This is why both KADU and
KANU firmly stated in their manifestos the assurance to protect property of persons regardless of
their race. This influence into the Independence Constitution was purely foreign as it tried to
protect the colonial inheritance which has perpetuated poverty and landlessness.
Therefore, the constitution-making process prior to independence was hasty, and the African
delegation lacked sufficient expertise required for sound constitutional law. Furthermore the
venue for deliberation was foreign; an instance that limited African participation. A
constitutional conference in a foreign country and dominated by colonial masters brings to
surface the notion of the Independence Constitution as an imported set of rules and principles.
Actually, an imported constitution.
Illiteracy and ignorance were serious challenges to writing and implementation of the
independence constitution. The governed did not seem to question the validity of the document
and the government never made attempts to educate the civil population or at least call for a
referendum. The constitution was an endeavor by the elite members of the society.
During the Lancaster House Conferences there was no representation of vulnerable groups like
the handicapped, children, women and religious parties. The process was therefore inconsiderate,
insensitive and mono-eyed. Consequently, gender inclusivity took a back seat in post-colonial
politics and the development agenda. For so long after independence, women participation
remained negligible with rampant abuse and child labor. There was severe underdevelopment of
such special and vulnerable groups because the imported constitution did not adequately protect
their rights and interests in the country.
In short, the process that led to the Independence Constitution can be described as foreignengineered, hasty, insensitive, mono-eyed and ideologically weak. The voices of the indigenous
people were not reflected in the exercise because of the nature of the process as discussed above.
12
On the other hand, the Second Liberation Constitution has a longer process but was in no way
better than the independence one. The reason why the Second Liberation constitution-making
process was of less improvement is because it was influenced by foreign and local factional
forces. Although the period seemed longer it was made short by the various different and hotly
contested drafts spanning the whole process.
The process was also hasty and ignorance by experts was not uncommon. For example, in 1
April 2010 a parliamentary retreat in Naivasha unanimously passed the proposed constitution by
ignoring over 150 proposed amendments. The document was then presented to the Attorney
General on 7 April and officially published on 6 May 2010. There was poor and inadequate civic
education because the time allocated was too short. A referendum was scheduled for 4 August
2010 and the constitution was approved by 67% of Kenyan voters. And inaugurated on 27
August the same year.
Unlike independence constitution, the Second Liberation Constitution had a detailed and
elaborate Bill of Human Rights. There was gender sensitivity and the interests, rights and affairs
of the physically handicapped, children, youth, and religious groups were taken into
consideration. This was a betterment compared to the Independence Constitution. For the first
time in the country’s constitutional history, affirmative action(AA) was put into practice in order
to ensure equity.
The type of government, devolution, land and gender equality took the central stage. This was
similar to the independence constitution making process in many ways. Gender was one of the
new agendas but the other issues were those experienced almost half a century ago. Since
independence landlessness remains an unsolved problem due to greediness, corruption and
discrimination. Large chunks of land remain in the hands of foreign individuals and companies.
There is still continued primitive accumulation and hoarding of land for speculation. These
practices are a present reflection of colonial land rules that our governments have failed to do
away with.
During the Cold War era, swift constitutional amendments were effected in order to bar the rise
into prominence of the pro-communist leader of opposition, that is the former vice president
13
Jaramogi Oginga. This was another time foreign forces influenced Kenya’s constitutional
development during Kenyatta’s era.
The opposition to the Independence Constitution was not uniform. There were those who called
for minimum reforms while the greatest number of agitators radically demanded for a complete
overhaul of the document in order to dispense a new legal framework. Such demands began in
the early 1990s as the so called wind of change swept across Africa.
The opposition to the administration of Daniel arap Moi was met with fierce force and violation
of human rights. For example, the opposition leaders were tortured, assassinated, exiled and, or
faced detention without trial. Such practices weakened the opposition and its key role shifted to
the civil society and religious groups. This change exposed the country to foreign manipulation
as state- and non-state donors funded civil society groups especially those aligned to legal
agitation. As the old saying goes, the one who pays the piper calls the tune. This was a clear
avenue for foreign influence.
same happened to the constitution of 2010 which instead of being subjected to implementation it
faced similar quick amendment proposals.
4.3 Common Features of the Independence and Second Liberation Constitutions and the
Implication.
Both the independence and second liberation constitutions have had resemblance. The dislike of
most norms of the independence constitution led to immediate amendments only after one year
of inauguration. The
A bicameral parliament system was instituted in both constitutions. The parliament was
composed of two houses, that is the National Assembly and the Senate. The independence senate
was dissolved in less than two years of existence. For the second liberation constitutional order
the senate has faced censure motions. There are those for abolition of the senate while others call
14
for strengthening of it. The major problem with the constitution of 2010 senate is the fact that it
has overlapping roles with those of the National Assembly.
*
The two constitutions identified three arms of the government, that is the executive, the
parliament and the judiciary. Separation of power was insisted for independence execution of the
roles of each arm of the government. However the independence of the judiciary has been
manipulated and interfered with especially by the executive. This disobedience of law by state
apparatus gives rise to what professor David Law calls ‘sham constitutions’. These are types of
constitutions that cannot prevent the state from acting contrary to the law.
*
In addition, quasi-federation is a similar feature in the constitutions. At independence, Kenya
was divided into provinces , districts, divisions and locations in a descending order of
administration. Regions headed by regional presidents were established. According to the second
liberation constitution, the country was subjected into devolution. In this case there was creation
of 47 counties each headed by an elected governor and the office of the president represented by
county commissioners.
Multiparty democracy was a principle enshrined in both constitutions. However, after
independence there was a move towards one-party state which culminated in the executive order
of 1982 that retained KANU as the only political party. This was however repealing of section
2A to restore multiparty democracy in 1991.
The new features in the second liberation constitutions included the supreme court, independent
commissions (statutory), the affirmative action (AA) and county structures.
4.4 Foreign Influence and its Impact on the Constitution.
Kenya’s foreign policy immediately after independence was described as cautious and moderate
thus creating avenue for manipulation of her affairs. This nature of policy was inevitable because
the young nation-state had to depend on the West for capital investment, donor aid as well as
military assistance. This stance in international relations to some extent shaped the country’s
constitutional development.
15
Therefore, competition for financial an intellectual capital encourages countries in most cases to
engage in a constitutional race to the top. According to the competition theory when countries
strive to attract foreign investment and donor aid there is a tendency towards better property and
human rights. For instance, in the 1980s and 1990s the Moi administration had to soften its
stance in order to secure foreign aid and capital from the West, the World Bank and International
Monetary Fund.
The above observation is reinforced by Angeline Haugerud by arguing that foreign events were
the main cause of the second liberation struggles which culminated in the constitution of 2010.
Although local activism and pressure by the civil society and the clergy played a role, it is the
collapsing one-party states in Eastern Europe and World Bank’s conditionality that really caused
the wind of change. The change is more ascribed to foreign forces because Kenyan politics at the
time were still characterized by personal competition, ethnic identities and desperate ideological
bases. Consequently domestic political forces played a second rate role.
*
The gender agenda which was a component of the second liberation struggles was highly
influenced by White Feminism in its second wave movement during the closing decades of the
twentieth century. White Feminism is totally incompatible with the African gender conceptions.
The one-third gender rule in the constitution of 2010 has found challenges in implementation
because ethnic identities and party politics still harbor unity among women in Kenya. Even after
having a commendable number of women parliamentarians, their influence is not to the
expectation of the majority because their gender has failed to unify them in politics.
It is also argued that because of the size of many multifunctional corporations, there is
considerable concern that they undermine through political means the sovereignty of nation
states. This is because multifunctional enterprises have significant economic influence policy
instrument of its home government. In Kenya MNCs have led to poor labor policies because
government legislation tries to appease such corporation in attempt to secure foreign investment
and economic stability without understanding the underdevelopment caused by them. *
All in all, it is donor conditionality that influenced much on Kenya’s constitutional development.
For instance, in October 1990 the United States became the first western country to tie its aid to
16
Kenya clearly on political and legal reform. Denmark followed the suit in 1991. Faced with
increasing capital and economic restrains, the KANU administration was forced to: restore the
independence of judges of the high court and the court of appeal, release political prisoners and
repeal one-party law in order to allow pluralistic politics.
Since the opposition was weakened by Moi’s administration through torture, murder and
imprisonment its role was assumed by the civil society and the church. Key bilateral donors like
the Swedish International Development Assistance (SIDA), Danish International Development
Assistance (DANIDA) and foundations such as the Ford Foundation. In this case it is important
to note that donor aid was biased towards supporting human rights groups and law-based
organizations like the FIDA and KHRC.
Table 1.0 Donor support to civic activities in US dollars.
Programme Area
USAID
DANIDA
SIDA
Totals
Ranking
Gender
607,970
101,455
409,031
1,118,456
1
Capacity building
576,551
464,275
_
1,040,826
2
Research and publications
898,629
99,039
_
997,668
3
Law and human rights
621,547
103,130
205,448
930,125
4
Civic education
488,900
22,100
208,807
719,807
5
Media
246,532
146,620
41,866
435,018
6
Democracy scholarships
187,200
_
_
187,200
7
Doctors fees
_
93,066
_
93,066
8
Miscellaneous
_
_
61,268
61,268
9
Source: USAID, DANIDA, SIDA.
Apart from the Soviet reform agenda, Western aid conditionality by state and non-state donors,
there was also influence of pluralism from Zambia and Togo. These were African countries
which had embraced multi-party democracy thus encouraging other countries like Kenya.
17
Therefore, the wind of change blew from such countries into Kenyan politics, yet another foreign
influence.
Furthermore, since independence Kenyan politics have been dominated by the ‘to-be-like’
syndrome. The adoption of bicameralism in the independence and second liberation constitutions
is a genuine wish to be like the colonial master. A bicameral parliamentary system has not
favorably worked in Kenya because it is not indigenous. The independence senate as well as
second liberation senate faced objection immediately after institutionalization.
The reason why Kenyan constitutions are followed by amendments instead of implementation is
because most of the constitutional norms therein are too foreign. For example, Western
democratic values cannot apply in Africa without adjustments to meet local circumstances. On
the other hand, very important values in the constitution cannot be implemented in Kenya
because of corrupt and greedy leaders who do not care about the public welfare.
18
CHAPTER FIVE
Recommendation and Conclusion
Constitutional borrowing is inevitable in the post- modern world which has become a global
village. Globalization encompasses such aspects as culture, economics, politics and technology.
However, the circumstances under which borrowing of constitutional norms will determine the
success in implementation and application of certain principles.
Constitutional borrowing due to coercion or imitation is likely to create challenges. But if
borrowing of principles is for adaptation and competition for capital and aid, then its
implementation can find suitability in a country.
What our law makers should avoid is imitation for the sake of it. In addition, our leaders should
protect the sovereignty of our country and supremacy of the constitution as the opinion and
decision of the indigenous people. Our agenda should find influence from black feminism for its
implementation to succeed. For instance, instead of seeking public opinion and support, the
second liberation statesmen and activists turned to wooing for foreign pressures in order to make
the government of Moi yield some reforms.
19
APPENDICES
APPENDIX A
1963 KENYA CONSTITUTION (INDEPENDENCE CONSTITUTION)
CHAPTER I -1963 Constitution
Citizenship
CHAPTER II-1963 Constitution
Freedoms Of The Individual
CHAPTERIII- 1963 Constitution
The Governor-General
CHAPTER IV- 1963 Constitution - Part I.
Composition of Parliament
Part II. Procedure in National Assembly
Part 3. Summoning, Prorogation and Dissolution
Part 4. Legislative powers
CHAPTER V-1963 Constitution
Executive Powers
CHAPTER VI -1963 Constitution
Part 1. Establishment of Regions
Part 2. Composition of Regional Assemblies
Part 3. Legislative powers of Regional Assemblies
Part 4. Executive authority of Regions
Part 5. Procedure of Regional Assemblies
Part 6. Miscellaneous
CHAPTER VII - 1963 Constitution
Special Provisions Relating To Legislative And Executive Powers Of The Centre And
The Regions
20
CHAPTER VIII - 1963 Constitution
Part 1. Financial procedure of Government of Kenya:
Part 2. Financial procedure of Regional Assemblies Part 3.
Financial relations between Centre and Regions.
CHAPTER IX -1963 Constitution
Police
CHAPTER X- 1963 constitution
Part 1. The Supreme Court
Part 2. Interterritorial courts of- appeal and Court of Appeal for Kenya
Part 3. Other courts
Part 4. Appeals
Part 5. Judicial Service Commission
CHAPTER XI – 1963 Constitution
The Public Service Of Kenya.
21
APPENDIX B
THE 2010 CONSTITUTION OF KENYA
CHAPTER ONE—
Sovereignty of the people and supremacy of the constitution.
CHAPTER TWO—
The republic
CHAPTER THREE—
Citizenship
CHAPTERFOUR—
CHAPTER FIVE—
The
bill
Land and environment.
CHAPTER SIX—
Leadership and integrity.
CHAPTER SEVEN—
Representation of the people.
CHAPTER EIGHT—
The legislature.
CHAPTER NINE—
The executive.
CHAPTER TEN—
Judiciary.
CHAPTER ELEVEN—
22
of
rights.
Devolved government.
CHAPTER TWELVE—
Public finance.
CHAPTER THIRTEEN—
The public service.
CHAPTER FIFTEEN—
Commissions and independent offices.
CHAPTER SIXTEEN—
Amendment of this constitution.
CHAPTER SEVENTEEN—
Siongeneral provis.
CHAPTER EIGHTEEN—
Transitional and consequential provisions.
23
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