“Kenya’s constitution contains unique and interesting features which are informed by the
country’s historical mischiefs that they were meant to address while others create new problem,”
anonymous
A constitution is a document having a special legal sanctity which sets out the framework and
principal functions of the organs of government within the state, and declares the principles by
which those organs must operate1.
A constitution is a legal chatter and also a political document2. Since the declaration of Kenya as
a sovereign republic in the year 1964 December 12th, there has been two constitutions which has
been adopted. The independence constitution which was fought for by Kenya’s first president
and his fellow leaders, and the 2010 constitution. The independence constitution was replaced by
the 2010 constitution. Should we ask the question why did the independence constitution get
replaced by the 2010 constitution?
With due regards to tabled facts it is common knowledge to a law student to know that since the
birth of republic of Kenya there has been numerous constitutional amendments of the
independence constitution by the executive. The then president Jomo Kenyatta used the
parliament which had the roots of the executive (the independence constitution had a system of
parliamentary executive) to amend the constitution. Kenya, then a young democratic nation had
faded adherence to sufficient democratic representation which includes making of reasonable
constitutional amendments. The president used a “Froude means” to have the constitution
amended for his own anticipations and favoring legislations in his governance.
In order to understand these aforementioned allegations, we shade light to a few amendments
and establish the corrupt nature of the amendments made by the legislature which was
technically piloted by the executive which was unfortunately headed by the president. The fourth
amendment in accordance to a hierarchy of several amendments was via the constitution of
Kenya (Amendment No. 2) Act No.17 of 1966, which vested the president the power to
consolidate and abolish offices of public servants. In turn this adversely affected the
independence, impartiality and political neutrality of the civil service. Moreover, this later
amendment further widened the emergency power vested in the president by the third
amendment. This amendment additionally extended the Presidents power to rule by decree in
certain areas such as Marsabit, Isiolo, Tana River and Lamu districts.3 A similar misfortune that
transpired in the amendment of the constitution is the Amendment act of 1982. This amendment
is the one responsible for converting Kenya into a one party state. This amendment introduced a
new section 2A. thus all political power was vested in the then ruling party KANU and one could
not vie for any political office unless they subscribe to the ethos of the party. This caused serious
1
PLO Lumumba & Luis Franceschi, The Constitution of Kenya,2010 An Introductory Commentary (Strathmore
University Press 2014, pages 764) p 2.
2
A speech by former Attorney General Prof Githu Muigai on the constitutional interpretation held at university of
Nairobi on 5th July 2019
3
PLO Lumumba & Luis Franceschi, The Constitution of Kenya,2010 An Introductory Commentary (Strathmore
University Press 2014, pages 764) p 34.
internal constitutional inconsistencies as it interfered with the Bill of Rights provision which
allowed for freedom of association4. The parliament was Ultra vires to its law making power as
established by the section 47 of the constitution. There was a trial to challenge the
unconstitutionality of this amendment in the case of Gitobu Imanyara v The Attorney General
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but it bore no fruit because the high court would not hear this as it dismissed the application.
This gives rise to another issue, a subversive judiciary which regarded that the president is above
the law and it did not permit even questioning of a minister. This was the extent of absurdity in
the government. So when the legislature and the executive powers are united in the same
person(president) or in the same body of magistrates there can be no liberty. There is no liberty
at all if the powers of judging are not separated from the legislative and the executive. There
would be an end to everything if the same person or same body were to exercise those three
powers6.
We shall then move to discuss the salient features in the 2010 constitution, which were not in the
independence constitution that has been incorporated in the constitution and are of much
importance in solving the independence constitutional mischiefs. In the aspect of human rights,
specific to life, the 1963 constitution article 71 permitted taking of life of someone. It states that
“…a person shall not be regarded as having been deprived of his life in contravention of this
section if he dies as the result of the use of force to such extent is reasonably justifiable in the
circumstances of the case –
(a) For the defense of any person from violence or for the defense of property.
(b) In order to effect a lawful arrest or to prevent the escape of a person lawfully detained.7”
To the contrary of the article 26 of the Kenya 2010 constitution which provides that every person
has the right to life and a person shall not be deprived of life intentionally, except to the extent
authorized by this constitution or any other written law8. This exhibits an improvement in the
regards to life by Kenyan legal instruments. The previous constitution, one could cause someone
lifeless over property. This was partiality to equalize a life to property. Furthermore, Article 2
(6), of the 2010 constitution recognizes international laws to be part of Kenyan laws.
International declarations such as the Universal Declaration of Human Rights article 26 provide
sufficient protection of the rights to life.
Another improvement to be majored on is the independent commissions established in chapter
15 of the constitution 2010 article 248. The independent commissions are(a) The Kenya National Human Rights and Equality Commission
4
The constitution 1963 chapter 5 article 80
Miscellaneous Civil Application No. 7 of 1991
6
Montesquieu, On The Spirit of the Law,1748.
7
The constitution 1963 article 71.
8
The constitution of Kenya 2010 article 26
5
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
The National Land Commission
The Independent Electoral and Boundaries Commission
The Parliamentary Service Commission
The Judicial Service Commission
The Commission of Revenue Allocation
The Public Service Commission
The Salaries and Remuneration Commission
The Teachers Service commission and
The National Police Service Commission.
The independent offices are(a) The Auditor-General and
(b) The Controller of Budget.
Article 249 section 2 sub section (b) states that the commissions and the holders of the office are
independent and not subject to direction or control by any person or authority. This independent
commissions have a role of protecting the sovereignty of the people, to secure the observance of
all State organs of democratic values and principles and promote constitutionalism. The 1969
constitution had roles centered in the three arms of government. The addition of the independent
commissions to the structure of governance assist a lot in curbing coalition by arms of government
in illegal practices. Let’s pick out one of major processes in Kenya; elections. In the previous era,
elections were at the control of the president. President Moi is an exemplary example. Moi used
to announce election dates and he always did this at a time convenient to his political party when
the opposition least expected this obviously tilted the playground for elections in favor of Moi. In
the 2010 constitution, an independent body conducts and performs elections the Independent
Electoral and Boundaries commission9. This depicts transparency in the electoral process
normatively, although some misconceptions and occurrences still surprises, for example the
murder of the Data Centre and infrastructure boss of IEBC Chris Msando really brings some
curiosity on the influence of the government(jubilee) in election10 but at least it has been improved
the normative way.
Presidential powers have been a main frame and playground to abuse of power. The powers of the
president during the post-independence era was much more than enough. This enshrined more in
the public service were the jobs of public service officers were at the hands of the president and
he could suck, or hire at his own discretion without a legal consultation or affirmation. The
practical absence of tenure in the public service meant that the public servants had no choice but
to do the biding of their seniors, ministers and even the president, because they had power to
dismiss or suspend public servants. The president had the audacity to intimidate the public
servants. An example is of resignation of Jacinta Mwatela former deputy governor of the central
bank of Kenya, she had a public figure of an exemplary uncommon honesty. Indeed, she had
refused to approve a paperwork for the export compensation claims of Goldenberg11. The president
9
The constitutional Kenya 2010 article 248 2(c)
The Daily Nation of Thursday August 3rd 2017.
11
Migai Aketch, university of Nairobi Abuse of Power and Corruption in Kenya pdf.
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removed her from public service by appointing her as a minister of a newly formed ministry the
ministry of Development of Northern Kenya. The new constitution in article 236 provides the
public service the security of tenure. Article 236 sub article a provides that” a public service shall
not be victimized or discriminated against for having performed the functions of office in
accordance with this constitution or other law.” Sub article b continues “be dismissed, removed
from office demoted in rank or otherwise subjected to disciplinary action without due process of
law” therefore the public officer will no longer hold office during the pleasure of the president.as
section 25 of independent constitution proclaimed. Article 131 of the constitution provides that the
president will exercise executive authority with the assistance of the Deputy President and cabinet
Secretaries.
A significant innovation is introduction of principles of leadership and integrity12. This is
stipulated in article 73 of the constitution. This canon binds all holders of public office and state
office. It rather entrusts the authority of the state office to the public. Hence the public officers are
accountable to the public for the exercise of its authority this promote public confidence to the
offices. Article 75 further brings to clarity that a state officer shall behave in whether in public and
official life or in association with other persons in a manner that avoids any conflict between
personal interest and public or official duties13…
The finality in the salient constitutional reforms is the judiciary. The independent constitution had
failed to regulate the administrative powers and the powers of appointment and dismissal of the
President and Chief Justice this could affect the pilgrim of judges and decisional independence of
judicial offices. The judiciary has been enhanced by the new constitution. It has established 3
superior courts, the Supreme court, the Court of Appeal and High court14. Article 166 of the
constitution provides that the president will now appoint Chief Justice and judges of superior
courts following recommendations of the Judicial Service Commissions and approval of the
National Assembly. The removal of judges from office is at least systematic and just it has
stipulated procedures in the constitution article 168. This has enhanced secure tenure and
independence of judges.
Every one’s tangible thing has a shadow, the constitution brought changes and great transformation
but it came along with some problems. It came along with devolution a bulky system which has
become a difficulty in implementing and running it. In some way it was devolution of corruption.
Right now several corrupt allegations and already in court the sort of Governor of Kiambu, Waititu
Ferdinand. There has been massive foreign borrowing in order to finance the budget of Kenya.
Current foreign debt is 2.6 trillion which comprises of half of Ksh 5.3 trillion total public debt.15
12
The constitution of Kenya article 73
Ibid 75
14
Ibid 162.
15
https://www.google.com/amp/www.businessdailyafrica.com/economy/Treasury-reveals-fear-over-foreign-debtload/39462334-4983076-view-asAMP-g17bcuz/index.html accessed on 17th October 2019.
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