CONSTITUTION OF KENYA REVIEW COMMISSION
(CKRC)
Verbatim Report Of
WORKSHOP ON INDEPENDENT CONSTITUTION, HELD AT
AFC
ON
27TH SEPTEMBER 2001
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WORKSHOP ON INDEPENDENCE CONSTITUTION HELD AT AFC ON 27.09.01.
Present :
1. Com. Okoth Ogendo
2. Com. Isaac Lenaola
3. Com. Dr. Oki Ombaka
4. Com. Keriako Tobiko
5. Com . Githu Muigai
6. Com.. Wanjiku Kabira
7. Com. Nancy Baraza
8. Com. Alice Yano
9. Com. Kavetsa Adagala
10. Com.Bernard Njoroge
11. Com. Ida Salim
12. Com. Riunga Raiji
13. Com. Ibrahim Lethome
14. Com. Paul Wambua
15. Com. Phoebe Asiyo
16. Com. Abida Ali Aroni
17. Com. Salome Muigai
18. Com. Zablon Ayonga
19. Com. Mohammed Swazuri
20. Com. Mosonik Arap Korir
21. Com. Mutakha Kangu
22. Com. Ahmed Hassan
23. Com. Charles Maranga
24. Com. Domiziano Ratanya
Apologies :
25. Com. Abdirizak Nunow
26. Com. PLO Lumumba
27. Com. Abubakar Zein Abubakar
The meeting opened at 10.00 a.m with Prof. Ogendo in the Chair.
Com. Prof. W.H.O. Okoth Ogendo: Fellow Commissioners and guests, I want to call this
seminar to order, I think we are now properly constituted. This is part of the series of seminars
that are intended to ensure that Commissioners have a common understanding of the
Constitutional issues that this country will, be dealing with and therefore to enable us to ask a
common set of questions as we go around the country collecting views. It is now my very great
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pleasure to ask the First Vice-Chair of the Commission, Dr. Oki Ombaka, to deliver the opening
address, but before he does so, can I ask Pastor Ayonga to lead us in prayers.
Com. Pastor Zablon Ayonga: Gracious, loving Father who art in heaven, this morning we
want to thank you for your goodness, that you have brought us here safely so that we can hold
this seminar. We want to thank you for your blessings and the opportunities that we have been
given to lead in this important Constitution. We pray that as we meet here today and tomorrow
that you will pour your blessings upon each of us and give us the clarity of mind and thought,
so that the things we are going to study, communicate and discuss, that we may find them useful
in Constitution making. We pray that you would lead us this day as we go on with our
programme, for we ask in Jesus’ name’s sake. Amen.
Com. Okoth Ogendo: I believe that the other persons with me up here are known to all
Commissioners: Vice Chair Prof. Salim and Vice Chair Abida Ali.
Com. Dr. Oki Ombaka: Thank you very much, Prof. Ogendo, Chair of the session, fellow
Commissioners and our distinguished guests, including of course my dear friend, Dr. Ben
Kipkorir who is somewhere there thank you very much. I really do not intend to say any learned
thing; this is purely in-house business, although we have our guests to help us facilitate our
discussion.
As Prof. Ogendo has pointed out, the primary purpose of this series of workshops is to ensure
that we as Commissioners develop a common understanding of the Constitutional issues in
setting out the Constitutional reform agenda; and that we, as far as possible, develop common
parameters for our work, develop a common paradigm for the type of
(Inaudible due to cell phone ring)— I would really appeal with fellow Commissioners to turn
their toys off so that we can have- in addition to that first objective, you will recall that the
second and related objective of these workshops, is to help us develop and generate material that
we can share with a larger body of community in our civic education work so that, in learning
and developing a common understanding of these issues. There are Kenyans that will benefit
greatly from receiving some of our papers either in the forms that we are going to present them
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or in a simplified form. We see this also as a kind of reservoir for the civic education mandate
that we have.
So we have a dual objective in conducting these workshops, our own civic education and
developing a common understanding and, secondly, the desire that we develop a reservoir of
material for use in our civic education pursuit.
Now, I have been thinking – and I think I have thought (inaudible) – not just in the context of
our Constitutional review but also in terms of explaining to Kenyans as a teacher, as a student
and now as a Commissioner, what really the Constitution is and its relevance to a country.
Really, the Constitution is, first and foremost, the structure or the edifice on which the
architecture and design of a country depend. To develop that analogy further, the analogy of
architecture of a house: a good strong house has a very strong foundation and structure. It is the
foundation that will make that house stand, and the structure that will make the walls and the
roof of the house solid, to be able to withstand the test of elements and the test of time. If a
Constitution is seen as the structural basis of a house, then what we are talking about is that over
the years the structural basis of our house, Kenya, has been tampered with. Beams that hold
walls have been knocked out without reinforcements being put in place. The foundation has
been shaken without more concrete being put in that foundation. The original architecture of the
house was based on a design that the planners and the people who built the house had in mind. If
you are commissioning a house, you give the instructions to the architect as to how you want the
house built, where you want the kitchen to face, whether you want a double storeyed house,
whether you want a basement and Lancaster House can be seen as kind of the architect of our
house. The design was made there and the construction began and we got a house called
Independent Kenya.
Over the years contractors have come, variously called politicians, variously called Parliament,
without looking at the original layout, without asking for the original architectural plans for this
house and knocked walls, quite often knocking structural edifice of this house and building
things, adding extensions, resulting where you find now bedrooms facing kitchens, (laughter)
you find basements on the rooftop, you find foundations that have been shaken and a storeyed
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building put on top of a wall without a foundation and our house is shaking! It is crumbling. So
we say we have to do something about this.
If you take that analogy further, then the Constitutional project, the Constitutional lawyer, the
Constitutional review, is to a house and design what a structural engineer is to modern
architecture. Before you knock down a wall, a good civil engineer will request, as a mater of
course, where is the original plan? You want to extend this bedroom, if I knock this wall I may
be knocking out a structural beam, this house may crumble.
So in getting this seminar going today, the Research and Drafting Committee I think has done
what a good civil engineer would do. He would say “we cannot go on this project the way our
operations have gone, the way contractors have gone in Kenya, and just construct walls or build
a new house on top of this roof without looking at the original architecture, without looking at
the original configuration, without seeing the original plan of this house so that we can
understand the assumptions of the founding fathers and mothers. Abida is sitting on my right!
(laughter) We cannot embark on a project of re-designing this house without understanding,
without calling for the original plans.
So, really our focusing on the Independence Constitution is the task of civil engineers looking at
it, examining the assumptions, “why was this kitchen built here, why now has it been converted
to a bedroom, how can we go back and commission a new house? I think it is in that regard that
we are gathered here, and I think we are starting on the right footing because we cannot get the
correct assumptions before we know what is wrong with our house, before we know what beams
were knocked out that were structural before we know “how come we are sleeping with our inlaws in the same bedroom” so that we can re-design a new house.
With those very mundane remarks, I hope you have a very useful discussion and I hope you use
the time also to catch up with some of our administrative work, since we are together, use the
time to bond further because we have an impossible task. We not only have to question and
identify these contractors that have put mud on walls that were made of cement, we have to redesign a new house for our country and that is really a challenging task.
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Thank you very much, Mr. Chairman.
Prof. Ogendo : Thank you very much Dr. Ombaka for that very graphic description of what we
are here to do, one might call it Constitutional Archeology. And part of that archeology is to be
able to dig through the rubble, if there is any rubble to find out exactly how the original house
was designed. The Kenyan people are telling us that once we have done that, we should then
now come up with either a new architectural plans or to build a new house on the basis of the
foundation that has already been made, and were laid more than 35 years. With those few words
the programme is telling me and the I think the people who designed this programme have
learned from very hard work we were doing in Mombasa it says that it is tea time, and we come
back at 10.30. Thank you ladies and gentlemen.
Prof. Wanjiku Kabira : We want to welcome you to this session and I happen to be the Chair
of this session. I am happy to be one of those who is supposed to begin looking at the
architecture the people of this house, where we have the toilet in the kitchen and we are sleeping
with our in-laws in the same bedroom. So I wish to introduce the two discussants, I don’t think I
need to introduce all of you.
All : We don’t mind.
Prof. Kabira : Mr. gentleman, and a learned friend of all of you.
And I think I want to move on to Dr. Kipkorir we are really very lucky this morning to have Dr.
Korir with us. Dr. Kipkorir was born in 1939. He went to Alliance and Makerere and later to
Cambridge University. He went to, he built his career, in Sirikwa County Council as a Deputy
Clerk 1965 to 1966. He was a senior Lecturer in the Department of History, University of
Nairobi and a colleague for many years of Prof. Salim. He was the Director of the Institute of
African Studies 1977 to 1983 and the Chairman of the Kenya Commercial Bank 1983 to 1991.
He is a farmer, he has been a farmer from 1992 to 1994 and Ambassadeur in the U.S.A. in 1994
to 1997. And now he continues to be an adviser and giving guidance to all of us who need all
this---
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Next to Dr. Kipkorir is the second discussant Dr. Smokin Wanjala, I am made to understand by
Githu that Smokin Wanjala that -------- gentleman and learned friend of all of us. As Smokin
Wanjala, he did not want his name to be known in case he get disqualified from the succession.
So Smokin Wanjala is a Senior Lecturer in the Faculty of Law, Department of Private Law. He
is very well known most nationally and internationally for his work in human rights movement
and within the civil society movement. We know him as a member of Clarion and many other
organizations as that have invited him for democratic ideals of this country and we welcome him
this morning as our discussant.
And without spending more time I think I am going to ask our main speaker this morning
Githu Muigai to look at the ‘house’.
Com. Githu Muigai: Thank you very much Prof. Kabira I don’t know how much time I have,
luckly this is one of the very few occasions when I have been requested to by the organizers to
produce a paper and by the Grace of God I have been able to. So I will not read the paper, I will
give an outline of the paper, you have it in your docket but I will highlight some of the ideas. I
will ask that most of you to bear with me because I am aware that there are here persons more
knowledgeable than I am myself, those Constitutional lawyers, Historians, Diplomats, Political
scientists and others. I would like to keep this discussion at the level of the known experts.
I want to begin by requesting you to pull out a copy of the original Constitution of Kenya from
your documents, and to encourage you not be intimidated by it, actually it is more acceptable
than it appears. In fact I would encourage you over the lunch time to peruse it. I want to start by
saying also that it is a misnomer sometimes when we talk about the independence Constitution as
if it were one document. There were actually two documents, if you look at it you will see that.
There was the Order in Council which is the Kenya Independence Order in terms of 1963. The
theory here is quite simple and the Constitution which is a schedule the Order in Council, the
theory is quite simple. It is the British Government that was conferring independence on Kenya
and not Kenya declaring itself independent. Therefore the instrument that declared Kenya
independent was external to Kenya and that is the Order in Council. And then the Constitution
kicked in by force of law simultaneously. Now when you look at this Constitution you will
notice several things: one it is very long, it is very tedious, it is very complex. Part of the reason
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is because it was a compromise document. The Constitution of Kenya has finally elasted was as
a result of a compromise reached by the several parties who negotiated it. And they were several
and this I think will come out in the discussion by my colleagues.
The other thing I want to mention in that regard is that because it was a compromise document it
reflects an inherent instability in the sense that in order to accommodate what everybody wanted
in to the Constitution the draftsman of the day had to do what today we would call ‘cut and
paste’ which is take a little there give a little there so forth and so on, so that within the
Constitutional structure itself, there was an inherent sense of instability and I will give examples
of that as I go along.
It achieved several things however the first thing is that it institutionalized, entrenched and
legitimated colonial political and Constitutional legacy.
The Constitution was in itself a
continuation of the colonial order. It legitimated the colonial political institution, it legitimated
the colonial legal institution. But it also significantly, it provided parameters for the political and
Constitutional discourse that was to shape the future of Kenya. So it became the symbol of
independence, it became the symbol of the creation of the new State, it provided legitimacy for
the rulers who took power under it. As you know the process of its negotiation was such that not
every shade of political opinion was represented. But by being from Constitution you adopted, it
legitimated the political leadership that negotiated it.
Thirdly, it became a symbol of our national unity, in fact our Chairman has written in several
learned papers and suggested that what the Constitution in Kenya was supposed to do was almost
an impossible task. First it was supposed to take all the various communities of Kenya that up to
this point had nothing in common other than sharing the common boundary and being governed
by a common colonial power and create them into a nation. So we were going to be a nation by
dint of law.
The other thing that the Constitution was supposed to do was to create a democratic culture, the
colonial power was not a democratic power. Colonial political institutions were not democratic
institutions but by dint of the Constitution we were expected suddenly after 70 years to become a
State and so forth. So the argument I made there is that the drafter of the Constitution saw it not
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----- as what Okoth Ogendo calls the power mark. They saw it not only as defining how power
was to be structured in the new country, they saw it as introducing values.
The most important of these values was the value of Constitutionalism. The colonial state was
not governed by Constitutionalism because the governor was autocratic, he was authoritarian, he
was above the law. He appointed Judges, he nominated people to the Legislature, he sat in the
Legislature himself and he virtually could do anything in the Colony. But actually the new
Constitution was supposed to limit Governmental power. It was intended to limit Governmental
power and inculcate the values of a liberal democracy. So also there was pre-majoritarian rule,
majoritarian rule was to be subject to the right of minority community. This was a very
ambitious project that the Constitution set for itself.
The Constitution was going to challenge
almost a century of authoritarians autocratic colonial power by trying to create a liberal
democratic Constitutional Order.
Now it had 2 basic principles: one it sought to create a Parliamentary Government (inaudible)
how parliamentary Government was affected by the changes that came in later. Secondly, it
sought a very important role in the protection of minorities, there were several minorities and I
will talk about them later.
The first were Asian minorities, ethnic minorities there were the European who were a very
important political constituency in Kenya at the time of independence. In fact I might put it this
way myself the Europeans were the most important constituency at independence, at the time of
negotiating independence. Because Britain as a colonial power felt that its most enduring
complication were to its own citizens who were in this country. And then of course there were
Asians who were the merchant class in this country and who putting a lot of time, effort and
sweat into building their enterprises and most of whom had British Passports, British nationalist
and to whom Britain felt an enduring commitment and at the experience Uganda was to show for
their status, it was a
genuine concern.
Then of course there were the African minorities that is the small ethnic communities -----who
felt also that this the Unitarian type of system that KANU wanted to fight for ---their own
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survival.
Now in theory the draftsman of the Constitution was bequeathing to Kenya a
Westminister model of Constitution. This, however, was very far from the young people, but I
need to mention something else, most of the time when they discussed the Constitution, we
blame the founding fathers: Jomo Kenyatta, James Gichuru, Oginga Odinga, Tom Mboya, there
are four galaxy in founding fathers today. Why didn’t they do this, why didn’t they say that,
why didn’t they demand this. We must under the context in which the Constitution was
negotiated. When we use the word negotiation it is a misnomer in a sense the British decolonization Constitution was a model of the shell, I think my class with Smokin Wanjala would
elaborate on that. But by that I mean it was produced for export it was not pro--- for Kenya the
Constitution we see here was not drafted for Kenya. It was the same Constitution that decolonized Nigeria, de-colonized Ghana, de-colonized Uganda, de-colonized Tanzania and so on
and so forth.
So the draftsman as it were had already addressed the whole problem of de-colonization in
advance. He had then drafted a Constitution and put it on the shelf and every time there was a
country to be de-colonized, it was brought off the shelf then they say, let us look at your special
needs if any. So the large part of this Constitution, the core of the Constitution was part of the
export model. Now the export model in theory was based on the British Constitution ------ the
British themselves, but as we know the British Constitution is unwritten. There were major,
major (inaudible) so us ---for the written Constitution.
And there is a comment I would like to make in that regard. British lawyer had no experience
with written Constitution themselves. There were drafting Constitution for other people but they
had never lived with one themselves. Which will be a contradiction in itself. One might say
they were getting better over time, from India to Nigeria to Ghana and so on. The second thing
and I will be raising that comment in the context of the amendments that followed and what Oki
Ombaka was talking about earlier on the morning; that when the Constitutional amendment
process in Kenya began, there was no political view of the architecture of the Constitution. So as
Oki Ombaka was saying views were moved to --- that we are part of the Parliamentary Structure
and part of that, I personally have attributed, not only to the politics of the time but also to the
inadequate understanding of the functions and processes of an ideal Constitution.
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Now secondly in that regard, the written Constitution has special legal sanctity and therefore if
we alter Legislation and administrative acts (inaudible) viewed as regards their legitimacy and
against the Constitution. Then the second thing it said was; it vested in the Legislature a very
critical role in the political process and I think we will be discussing this tomorrow. Again this
was a very, as it manifested itself later, as a problem. What in English politics or British politics
were dealt with as (inaudible) and you will find also in Okoth Ogendo’s Paper that is in the
document. What within British politics was dealt with as issues of packing management and
discipline found themselves into the Constitution, and therefore as part of what Parliament was
intended to control and regulate, an example is the (inaudible) court rules which has given work
to do it day which says if you no, not the (inaudible) court let me go back). The rule that
provided that if you cross the floor then you would have to go back and seek the re-election and
so on and so forth. The problems that the Government of the day was trying to address were not
Constitutional questions, they ought not to have been addressed as Constitutional issues, they
were issues of party discipline. If KANU could not hold its majority together, that was not to
have been a Constitutional question. It ought to have been a question between the whip and the
party relations. So may be we will come back to that later.
The other importance of Parliament was that it was the final custodian of the sanctity of the
Constitutional order because only Parliament could amend and not amend it ------ . Then the last
thing I will deal with was the Constitutional amendment process which was deeply entrenched
almost making it virtually impossible to facilitate, and Parliament was the final gate keeper in
defending and protecting the sanctity of the Constitution. So Parliamentary majority were they
very important?
Thirdly was the Judiciary, the Judiciary enjoy security of tenure and it was to be the final arbitor
of the Constitution. Now there you have an interesting process that probably we will catch in the
--- The final interpretation of what the Constitution meant was to be left to the Judiciary which
Judiciary was to enjoy security of tenure. Therefore Judges could not be moved to outstation
posts and so on. ---- of course the bill of rights, the British did not have the bill of rights
themselves. In fact as far as I know they adopted one last year or the year before. So they did
not have the bill of rights but they inserted one. The bill of rights was part of the process of
protection of minority.
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The fifth thing that we have in the Constitution was the attempt to insulate the public service
from political pressure and therefore there was a Public Service Commission set up for that
office. Finally states the Constitution proceeded under the assumption that there will always be
an opposition in Parliament. It was never an expected aspect of the Constitution but implicitly of
the Constitution was the assumption that there will always be opposition party, and that
opposition party will be Government in waiting and so on and so forth.
And finally is what I have discussed already (inaudible). Now let me look at the Institution very
quickly. One and which is critical to our understanding of this document was the surety of
Executive power, the Executive power lay with the Queen, because Kenya still remained a
dominion after independence.
But the powers of the Queen were vested in the Governor
General, and the Governor was resident in Kenya of course. Now the Governor employs
extensive powers in his capacity as Head of State and this related to ----- external affairs, internal
security and he retained a veto over legislation. This is important because there has been a lot of
debate about whether we can have a President and a Prime Minister at the same time. It is
important to understand how historically these two functions and the Governor as Head of State
retained all these powers. In theory he was to act on the advice of the Cabinet, impacted he
could ask as he wanted or more or less he wanted. The Prime Minister was the Head of
Government he was appointed by the Governor General. It is the Governor General who
appointed the Prime Minister, in this case it was to be Mr. Kenyatta. Prime Minister had to
represent the party of the largest majority in Parliament and so on and so forth.
Now the next aspect related to legislated power again here there was another duality because the
Legislative Assembly or rather Parliament as you would call it today, there were three main
compositions of Parliament. There were three components of Parliament. One was the Queen
herself so that in fact to define Parliament was to define the Queen in Parliament, because you
could make no law without the Queen because the bills had to be signed by the Head of State. So
you had the Queen and the Governor General, then you had the House of Representatives, then
you had the Senate. Now the House of Representatives was the Lower House, the Senate was
the upper Chamber the Senate was an interesting creature, I don’t think we have enough time to
go into it.
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There were 40 districts – you will find them in the schedule to the Constitution - There were 40
districts that elected Senators. Their aim at that time was to make the Senate part work of
Majimbo. The Senate was the ultimate defense mechanism of Majimbo and later on when we
discuss the amendments tomorrow Mutakha Kangu will be talking about the chipping away at
the powers of the Senate before it was finally abolished which went in ------ with the destruction
of the majimbo structure. So if within the 40 districts there was an attempt to make them as
ethnically homogenious as possible so that the Kikuyu were able to nominate their own to the
Senate, the Luos one of their own and so on and so forth – you understand what I am saying – So
that was the critical aspect and when we debate whether Majimbo is the fire for, is the
mechanism in the element of consideration of ethnicity, we must remember that, at least in the
case of the Senate there was no pretence at all that the purpose of the Senate was to create as it
were a House of ethnic chiefs. In a manner of subjecting we can go to that later – but there is an
interesting thing about the Senate. It was a continuous body every two years a third of the
Senate resigned. It was like the board of a Government it kept renewing itself without itself ever
wholly being removed as it were.
One of the most curious amendements - and this is not in my documents, it will be discussed
tomorrow. There are two curious amendments that as a student of this period I find one was the
first one that happened in 1964 was the first Constitutional amendments because other
amendments pre-empted the office of President and while we would think - a reasonable man
would think – that it would then require an election to be held in the that office that previously
deal with this, that did not happen. Jomo Kenyatta was declared President by the Constitution,
so he was never elected into an office that no body had ever voted him for. That was the first
amendment and it gives you a hint to the way things went from there on.
The second amendment that I find curious and there are several that I find curious, the other
interesting one relating to the Senate was that when the Senate was finally abolished in order to
deal with the political forum of sacking people from their jobs there were removed from the
Senate and taken to the House of the Representatives so they too went to an office that nobody
had ever elected them because they had been elected as Senators. If the Senate was abolished
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they should have gone home that never happened (inaudible). So I have discussed federalism I
don’t want to say more except save it.
The relationship between the Federal Government and the Regional Government and the Local
Authority was very complicated and I invite you to look up this schedule - madam you must tell
me -- I want you to look at the Constitution again please, and go back to schedule, can you look
at page, I want to show you how seriously this ethnic business was taken. I want you to look at,
will you look at say page 205 or 211, this were very extensive provisions on this districts. Look
at the definitions of Lamu District at page 211, commencing at one formerly known as from the
well geographical co-ordinate 4054 East and 146 South from the common boundary between
Garissa and so on. This went on and on about every district. It was not a simple matter of
declaring this is our district, it was a complicated matter of providing detailed geographical
description and inserting them into the Constitution. And when we talk about Majimbo we must
remember then that if that is what the people of Kenya want we must bompact the drawing
boards and bring people who will get all the geographic co-ordinates correctly. Because it is a
serious matter because we saw this in Garissa when we were there and we were talking about the
position of the ----- then the passions were very strong as to where in the river and why and so
on.
The other aspect of that and that I would like to draw to your attention --- how this relationship
was operationalized. But May I start by saying that in real drafts, the Majimbo Constitution was
never implemented. Now that is a kind of a contradiction in terms because I have just said the
Senate was there Senators were elected and so on. What I mean to say is in terms of the
finances, for example, that the regions needed to function, the Central Government --- the
regions. And if you look at – I am sure Prof. Kipkorir will talk about that – who is the Historian
and the former employee within the --- if you look at the schedules, you will find that the
separation of power between the Regional Government and the Central Government was a very
serious matter. I want to show you , for example, who was to run public lavatory was not a
matter to be left to chance, go to page 18 of the schedule. Do you see there, page 18 of the
schedule at the back. You see that, no sorry ----legislation 1963, you see that? There is a part
two that stands with matters that are within the concurrent legislated competence of Parliament
and the Regional Assembly. You see that. Let me --- to you. The supression of nuisance is own
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brokers, secondhand dealers, and money lender but not banking, license of entertainment and
recreation or public lavatories, refuse and everywhere disposals sewers and drains, wash houses
and lawns, that was the work of the Region.
Com. Kabira : Sorry you know that if you look at the pages on this one, it is page 21 (inaudible)
Com. Githu Muigai : Have you seen that? Then if you look at part two, it deals with matters
that are within concurrent legislative competence of Parliament and the regions meaning, the
regions and Parliament would both make law on those issues set out there in great detail the
following date matter to which the executive authorities of the region extend - can you see that –
and matters that are within the exclusive legislative providence of Regional Assembly. My
friend Oki Ombaka will be shocked to learn that primary, intermediate, secondary education but
not the following schools: the Alliance High School. That would not be run by the region,
obviously they would make a mess of it. No this the complexity of that relationship and I don’t
want to see – except probably to say that each Region had its own Police. There were policemen
for each region, a contingent and a Regional Commissioner. But again this was under the overall
control of the Inspect General (inaudible) So there was a very complicated relationship. The late
founding father Jaramogi Oginga Odinga in his book Not Yet Uhuru , said that in order to
rationalize this Constitution you needed an army of lawyers so that everytime you wanted to
move a toilet to tell you is this within the region? Or is this within the central etc. etc. I don’t
want to exaggerate that.
I want now to move very quickly to minority rights I have already mentioned the importance of
European interest and the interest of Asians and the interest of African indigeneous minority
community. You are aware that the Arabs wanted to succeed, the Somalis wanted to succeed,
and the small African communities felt we do not want to be overwhelmed by the collective
might of this majoritarian Government that will be put in place. I have already mentioned about
the Judiciary. The Judiciary is independent, autonomous and the work of the Judicial Service
Commission, I don’t want to go there.
Just to mention something about the Attorney General. The Attorney General was granted the
security of tenure but his office was a curious office in many ways. He was a minister, he was
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the chief prosecutor, and he was chief Government legal advisor. And probably that will come
out in the debate.
The Civil Service, let me say something about the civil service that was a very important part of
the Constitution. It was understood that the civil service had to be a political. The neutrality,
independence and competence of the civil service was sought to be guaranteed by the
Constitution. Therefore a Public Service Commission was set up which was supposed to recruit
into the civil service on merit and to insulate the civil service, it was supposed to recruit to
promote to dismiss and all the other things on merit and without political consideration. And it
had jurisdiction not only over the civil servants at the centre but also civil servants in the region.
One of the amendments as we know which later created one of the significant faults within the
Constitution itself was that by a later amendment the President got power to dismiss public
servants. It was deemed that all public servants serve at the pleasure of the President. So you
continued to have Public Service Commission that was theoretically in charge of recruitment,
promotion and disciplining of public civil servants. Whereas then you had the President who
could dismiss wherever and that is the same as the case of Mwangi Muriithi vs the Attorney
General where the High Court then said there is no inconsistency, there is no ---- and the
President has these powers and the Public Service Commission they should have the same
powers and so on, and probably we will hear abit of that from my colleague Smokin.
There was an independent Electoral Commission. It was intended to draw up Constitution
Constituency boundaries and conduct the election. Again - and this is not in my docket –
Mutakha Kangu will discuss it.
One of the major problems that there was within the
Constitution is that whereas we created an independent Electoral Commission over a time the
supervisor of elections become an officer in the Attorney Generals office. There the autonomy
and independence and political integrity indented for the Electoral Commission was
compromised by the Director of Elections or Supervisor of Elections being an officer in the
Office of the Attorney General – I have mentioned about the bill of rights I don’t need to go back
to it.
Then I can say one or two things about citizenship. Citizenship was a very volatile and explosive
issue. Because as you can imagine there were two categories of people seeking citizenship. Even
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all those, shall I call them natives is it an acceptable word? Even natives were not citizens of
Kenya, they were made citizens of Kenya by the Constitution in 1963 so even all of you born
before 1963 were not citizens of Kenya because you were made citizens by the Constitution.
Then there were those to be born after independence which was the more controversial issue in a
sense because then who could confer citizenship? Abida and my good friend Nancy Baraza have
been fighting for the last so many years because in the wisdom of the draftsman women could
not confer citizenship, it was men who could confer citizenship, we can debate that at another
point.
And finally was the complicated question of how about the Asians and the Europeans who held
British passports and so on and so forth. So this was an interesting and important provision.
Finally and I don’t want to talk about that is the issue of land, I am not an expert on this very,
very complicated issue. Prof. Ogendo and Smokin Wanjala know more than I do about this.
There were several categories of land and one of things that the Constitution did, which we must
always bear in mind, is that it sanctified title as at that time. If you were holding a piece of land
it sanctified your title --- your claim to it. The Constitution sought to seal the controversial
question of historical claims to land. Okay like my grandmother who says that Kangemi was her
home and it should be returned to them.
So that issue was sealed – I have advised my
grandmother at independence, and they had no historical claims that where to be allowed after
this seal and then of course the whole complex question of trust land what were to be run by the
County Councils. The County Councils were very large measure had an ethnic purity of sorts so
to that extend that protected historical claim of ethnic rules to ethnic land.
Finally madam Chair is the whole question of Constitution amendments, I said earlier there were
provisions of the Constitution. I don’t know whether I should take you back for a second that
were entrenched because this compromise of the Constitution was so fragile. The draftsman
sought to put the amendment of some of the provisions beyond the rich of the transient majority
and KANU. It was quiet clear was going to be a majority party because obviously it was quite
visible at the time what the coalitions were. Professor Munene will discuss that tomorrow but
just to mention it the draftsman felt that in order to ensure that this compromise was not
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disturbed by a transient majority coming to power and wiping out the Constitution, there were
several parts of the Constitution that were deeply entrenched.
One of those parts was the power to amend the Constitution itself was deeply entrenched and I
am sure you will no be surprised is I told you that the first ever Constitution amendment dealt
with amending the power to amend. And having gotten away that very nasty problem of the
power to amend, the happy journey as it was perceived by the amenders began by the way within
the power to amend. Previously there was a provision for a referendum, I just want to mention
that so that we keep the referendum in our minds. One of the ways the draftsman thought you
could secure the amendment process was first to create several tiers of the amendment. First you
had to have a majority within the House of Representatives then to take it to the Senate then in
the event that the exquisite majorities were not achieved referendum. The referendum fell on the
way side with the first stroke of the first amendment. And so we never had an experience with
that.
I don’t think there is anything else I would like to say about the amendment process other than to
say that no sooner had the power to amend the amended than the process of amendment began.
And the process of amendment was essentially in two directions, the initial one was to dismantle
Majimbo the second one was to centralize and the first one, the second came from the first was
to was to centralize power and all authority in the new office that had been created of President.
Thank you madam.
Prof. Kabira : Thank you very much Mr. Githu. He actually had asked for 45 minutes and he
managed to present in 41 minutes. The stuff was very well done, thank you very much. For
those of you who have not have had the opportunity to meet Githu who has spoken to us so
eloquently, I want to let you know that Githu is a Lecturer with the faculty of Law University of
Nairobi, he is a holder of Bachelor’s Degree in Law from the same University, he got his
Masters Degree from Harvard University.
Com. Githu : Holder of Data Degree, Colombia (laughter)
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Prof. Kabira : He managed to go to a much better University (inaudible) thank you. He is also
an advocate of the High Court of Kenya, and he is a Senior Partner in the firm of Mohamed
Muigai and ---- Advocates. So we have been very lucky to--Com. Githu : And he was a classmate of Smokin Wanjala (laughter) He is Smokin’s greatest ---- today (laughter) and he was my student (laughter).
Prof. Kabira : Thank you very much for a very well presented paper and I think we move to Dr.
Kipkorir
Dr. Kipkorir : How much time will you give me Madam Chair ?
Prof. Kabira : Can we give them 10 minutes?
From the floor : more, 20 minutes
Dr. Kipkorir : How much ---
Prof. Kabira : How much do you need Dr. Kipkoriri? (Inaudible )(laughter)
Prof. Kabira : If you spent a little more we will understand.
Dr. Kipkorir : Thank you very much Madam Chair and the Vice Chair of the Constitution
Review Commission of Kenya for -------me to come and address you. I want to say that I am
sure I know why I have been invited here and I should enlighten you on, it is not because of my
knowledge and special knowledge or competence in political procedural history or anything of
that sort, I think one of you got to know that I am a little older than most of you (laughter) most
of you, and perhaps those of you who are of my generation felt that perhaps one of things as we
come around and impart some of this experience --- so I think I am here largely to give you a
perspective of one who witnessed the process of the making of the Kenya Constitution. If I
should make some remarks which appear to contradict what your learned colleague has said,
please take it in that light that I am just presenting what I thought I should share. If I make a
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comment on what was intended Constitution it is to convey to you what I think was intended
and so on.
Now the deliberations of the Kenya Constitution took place during my most formative years. I
was in high school ---- at the very time that when ----- elected members of the House. They were
eight of them I have still ----them and I will give the names by heart. I think one or two I forget
their names, they were : Oginga Odinga, Tom Mboya, Joseph Muliro, Daniel Arap Moi, Mwimi
Nzau,Godfrey Mate, and I think I forgot two, there was a gentleman from South Nyanza called
Oguda, Lawrence, and I think one more is missing Ronald Ngala. ------- in 1947 I was in Form
Two ---- reading the Newspaper everyday, East African Standard, there was no Nation in those
days and listening to very----- broadcast of both BBC and the original Kenya Broadcasting
Corporation, which was an independent media. (inaudible) get the information.
Now I saw the first Africans appointed to the Kenya Cabinet, there was also Musa Amalemba
and if you go to parts of rural Kenya today and look for people you might find people called
Musa Amalemba. He was a caricature character, he was a comic character, very short, shorter
than I am, but for strange reason he agreed to be nominated to the Cabinet at the time when half
the elected members refused to join the Cabinet under the very first, although progressive
Constitution. Now therefore for me, for Githu Muigai, independence Constitution may be an
inanimate document. For me it represented an infant that has been longing for reception and
neither parent and many of them and neither sources for reception was loud noisy, so that and I
think --- and I can explain to you why there were difficulties. No one was quite sure who the
parents of the Constitution eventually was, so there were many people who had adored it but the
infant born.
What is the context of the Independence Constitution? We can go as far back as you like but I
like to go to ---- myself again something which I ---- true so I get to Alliance in 1956 in in the
height of the emergency. Well anybody of my age would have to have a ID. First of all and the
other ---community did not have travel anywhere without passports and all manner of the
Constitution was replaced. There were a number of plans and I think that I understand your
concern your component which will help you get the thing called ---plan, natural --- plan and
then ---- Constitution all these you will see that the Lancaster House Constitution about which
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most of you seem to have the knowledge. The Lancaster House Constitution which came in
1960.
And there was import figure in the formulation of those plans and on the British side p------himself Evelyn Baring, Patrick Renson was a governor for a short he was among
----Kenyatta was a leader (inaudible) and of course was taking the British the way from what
they intended to do to get Kenya out of their way and they brought in Macdonald who became
the last Governor and the first Governor General of Kenya. Along side were Secretary of State
perhaps the most able of them all was Malco----- Maclaud. They were modelling and concern
Malcolm Macdonald himself governor as mentioned. But there were the counterparts, I will not
mention the counterparts of the Asian community.
The Asian community perhaps I have to mention De Souza, I think I have seen it addressing you,
he was a very important figure and you should consult him as much as you can. But on the
actual --- the African elected numbers organization IEAO, you all know about IEAO, he always
waited to see what (inaudible) to any Constitutional proposal and in that organization, there were
three or four key figures, Oginga Odinga, Tom Mboya, Ronald Ngala and Masinde Muliro.
These were really the key people in and after the elected numbers of organization. But now they
split two places ------ elected members, Oginga and Mboya going one way in KANU and Muliro
and Ngala going another way then the other leftnants came in as people who appeared to play --roles and I know that the Colnel Gichuru came up very fast but he doesn’t feature in my body of
knowledge. Of course Moi himself and you met recently some of the other colourful characters -- Shikuku, Masai Leader and finally Kenyatta. Kenyatta was last one and I suspect Kenyatta
had very little (inaudible) to do with the Constitution. I like to state he had very little, if at all to
do with the Constitution.
Now involved in all these I want state (inaudible) was a consultancy process which was taking
almost immediately the ----- plan came into place. It is not try to say the Constitution of Kenya
was imposed on us, that we had no role in it. I think there were many parties in it and it will
eventually a compromise document. But there was a major ------ by the Kenya people
themselves. The British had a number of commissions of enquiry which went round the country
and one of those commissions the most important that I remember was the one which drew you
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attention to the one which determined the bills and also another one determined the political
power (noise from the floor) to ensure that the bills were taken into account so that to a very
large extend there was a major participation on the part that the Kenyans --- and the Constitution
therefore is --- compromise. The compromise which will give account of the bills (inaudible).
Of course that is fair the final Constitution was delivered by Tom Mboya, I think in November
1963 and delivering that he, shall I say provailing the writing of that Constitution. He had the
able assistant of ------------. (inaudible) Marshall was a Justice of the Supreme court of
(inaudible) He was --------- and if you want to know why we are suspended which had entire ------ whose members had to retire every two years, we don’t have ballot every Marshall to get an
idea. The Consitution was imparted but which Constitution could be imparted? Even you when
you have your Constitutional proposals in a year’s time or I don’t know in how many months
time, I can assure you, you will impart it. (inaudible) But the Constitution in my view
represented genuinely the aspirations of the majority of Kenyans. (inaudible)
There is a point with which the second point which I will be able to deal with what Githu has
said, that the Constitution ligitimized loyal --------. I used to ---- - some of you are members of
the making of Kenya. The very first statement I used to make was Kenya as an independent
State is a function of British Colonialism. ----------that independence is not then or later and
need an immediate break with British rule in all its infestation. It was symbolic break there were
some development which clearly indicated we had become independent but independent
Constitution and ----independence of a very large nature --- of a colonial process.
The third point which I want to ----- Mr. Githu Muigai is regarding Majimbo Constitution. I
think that there is no doubt that the aspect of the ----Constitution dealing with ----- discussion
was (inaudible) Why do I disagree with my two ------ three points I must mention.
One, Just because at independence we became a dominion with the Governor General this does
not mean to say the British Queen was being the holder of the executive power in our country. I
think this may well be a misinterpretation of the role of the British Crown all in the governance
of United Kingdom as well as in the Commonwealth of nations. Long, long ago the British
Crown had lost power long ago and although the British don’t have a written Constitution they
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had a number of instruments and a number of stages in which the Constitution took dramatic turn
and further and further they enroled in the power of the Crown so that by the time Kenya was
becoming a Colony of the British Empire the Crown already had very little power, and so on.
Now from my point of view as a Kenyan who witnessed independence the night when the British
Emperor handed over the instruments of independence to Jomo Kenyatta thereafter Kenya’s
executive power rested not with the ---- House but with Jomo regardless of what Constitution ---. The Kenyan had no doubt at all as to what happened that night. Therefore the Executive power
was now with us. In other words we were now free to govern ourselves well or mess up our
affairs. This might be a contradiction of what I said earlier what the (inaudible).
The second point will be that the Senate of independent Kenya is compared somewhere with the
House of Lords I am not sure it was superior in that concurrence. I want to say it cannot be any
comparison between the Kenyan Senate and the House of Lords. The House of Lords consisted
of two categories of people: those who had inherited their titles or those who were elevated to it
as a result of rending distinguished service in politics or any other part in the public or private
sector. They were actually Aristocrats and even if they were (inaudible) the house of Lords, we
thought they were Aristocrats. But if ----- belong to a class of Aristocrats. People who really are
no longer actively engaged in competitive politics. The people we wrote in our Senate were the
second category of our politicians (inaudible) It was the second class of our politicians they were
less educated and the first lot went to the House of Representatives although all the Africans
elected, all the African politicians were very poor but the ones who went to the Senate were even
poorer than those who went to the House. Their skills were, non was really -------. They were
second ------ and there was no one in Kenya that was going to perform the role that the House of
Lords (inaudible) whether they could really understand, that the Senate had the power to restrain
but not to prevent legislation in the ---- House.
The third area where I might ------ with my friend is the use of the term independence with
reference to anything. The Judiciary, The Civil Service Commission, The Police and so on.
These were terms that were just thrown in there, really neither the Africans nor the British really
expected that this --- will remain (inaudible) said we are no (inaudible) to the colonial rule was
not democratic, how all over a sudden would it become democratic to run independent
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institutions to the Constitution which has been introduced to us. One point I want to make,
something has made very fast appointment to head this so called independent institutions, when
Kenyatta a Kikuyu appointed Duncan Nderitu Ndegwa a Kikuyu as his first Cabinet Secretary,
with that appointment disappeared any notion of independence. If Kenyatta had made Meshon
Onjao or Kitili Mwendwa or any of these other peers of Ndegwa then the there might have been
a beginning towards the ------ of independence.
As a matter of fact (inaudible) was the first of the African Civil Service, he was the first one so
he was the very first one to be appointed, but now (inaudible) Ndegwa as the first one who then
went one to head a Commission of inquiry which introduced one of the major loading (inaudible)
of the civil service namely properties rights ownership and do you see there I think we need to
discuss a little more carefully what we mean by independence. And you people are going to
bring back notion to the independence --- of the civil service we should bear in mind.
Two points I want to make in conclusion. Has Mr. Magai made a made a number of any
omissions here? Many, many I am sure. But you wonder what I want to draw your attention to.
This relates to an act of the Constitution which is not mentioned in the Constitution, namely
Local Government. Now just before the independence Constitution was finalized (inaudible)
formulated in 1963 I believe in November 1963 by an Honorary Council, probably by the
Governor. There was a legal notice No.262 or 252 of 1962. Sorry yes, which established Local
Government in Kenya and Local Government in Kenya as established under that legal notice,
was to embody the traditions of African Local Government as existed and the European Local
Government. It was too ------- Local Government in Kenya before independence. There were the
African District Councils in the African area which were presided over by the District
Commissioner, the Vice Chair who was the Senior Chief or any important person in the
community. They were electing ------ they looked after local affairs. In the European Sector
they were the County Councils and ------ they had a cooperation. These were all incorporated
under the under the legal notice, I think of 262 --- which established working (inadible)
I want to suggest to you that Local Government at independence of Kenya was a power to carry
out functions which were relevant for the citizens of Kenya and protecting the rights of the
presentation of citizens and property owners, some of the provisions included in the local legal
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notice of 262 (92) of the Constitution of local authorities was provision of anybody who owned
property in the former European Council Local Authority will have the presentation of by virtue
of owning property. And the very first laws City Council, 1/3 of its members elected by people
who own property in Nairobi.
Now after the repeal of the Majimbo segment of the Constitution, I think the federal Government
discovered that there was still another (inaudible) so local independence might have a lot of
powers the very powers the Central Government wanted to charge, and began immediately in
1966, I saw this myself, they absorbed all the powers of Local Government. They absorbed by
the Central Government all the powers of Local Government, they absorbed by the Central
Government all the powers of Local Authorities in Kenya had been going on till this very day.
You only have to listen to what Mayor Shabir said last night in Kisumu to realize what I am
talking about. I hope you have read it. I think that is a major point that I think perhaps it needs
to be born in mind. I want to thank you that the Constitution of Kenya as you know it is not
complete without taking into account the (inaudible). Well now in conclusion, I ----------- of the
---- of Constitution writing from the incorporation of
Majimboism.
The independence
Constitution -----construction (inaudible) This is perhaps what Githu Muigai meant to say
(laughter and clapping)
Prof: Kabira : Thank you very much Dr. Kipkorir we will preserve the comments and the
questions --- until we have listened to Smokin Wanjala.
Smokin Wanjala : Thank you, I should start by saying that I also (inaudible) that is what I am
reminded to (inaudible). I am not yet (inaudible) because this is the Constitution of Kenya
Review Commission. But I am looking at the faces at the the table and very familiar territory
apart from a few members of this patch and perhaps this patch and the other patch quite a
number of faces you sit besides were my students (inaudible, laughter) Before I make my
comments I have the unpleasant task of reassuring honourable Phoebe Asiyo that just before this
sitting assembled properly she did write a note which I should read
Com. Githu : Smokin, why Smokin, you smoke?
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Smokin Wanjala : These comments you are not the only one Mheshimiwa that has had the
opportunity to ask the question. I can only assure you that apart from the name, I have involved
myself in, ever since I was ushered on this orbit, I have never smoked. The history of the name
Smokin how I came to get it, is as complex as the independence Constitution and therefore we
can discuss that later.
I may just begin by saying I have ---- a lot (inaudible) I always think of ----agree with most of
what he says. It is pleasure and joy ---- but I think that I did also (inaudible) I think there is a lot
of victory around the independence Constitution and Muigai’s paper has gone a long way to ----some of these misteries. As personal ones involve myself extensive civil education. I have been
following some question from both young and old about the independence Consitution. This
Majimbo Constitution what was it ----- and the ---- question I ask Muigai is ----- to the effect
that ----- member of implemented.
One other point I need to emphasize coming from both the comments of Professor Kipkorir and
Muigai is that as a Commission, I think we need to address the independence Consitution in a
fairly simple------ historical perspective because there is the independence Constitution ----- and
historical process that is what the Kenya Nation needs to capture and ---- thereofe I feel fairly
informed by the renaissance’s of Dr. Kipkorir as a person who witnessed that expectation of
aspects of that process. The right thing we need to do beyond renaissances we need to explain to
the young generation that the Kenyan people are in basic, those basic legal processes that led to ------ into independence Constitution, that will not be an exercise in ------ because may be we
shall inform them that the future of this country has a Constitutional democracy and I think we
need to combine Dr. Muigai’s technical ------ and Dr. Kipkorir’s --------- in a simple way those
processes I would like to hear more (inaudible).
The other point I think which perhaps we call it, may be we should visit is to explain to this
(inaudible) how the independence Constitution disappeared to. (inaudible) Extensive research
detailing the steps that marked its disappearance of the federation of the independence
Constitution as we know it. I think this or was it because it was unworkable or was it because it
was a conspiracy of the political national elites of that time and this Constitutional amendments
how were they operationalized. I think that requires to be explained in ordinary language so that
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we may be ------ when it comes to being vigilant about the product we are working on because it
could also (inaudible coughing) it could face the same fate of independence Constitution. It may
be better that we emphasize that aspect.
Now ---- have the unpleasant task of discussing my ------ and comments also (inaudible) There
is still a debate with the independent Constitution and therefore the current Constitution and
imposition have appointed people or was it not as explained it was a ------ process that it had
some participation with the Kenyan people I think that and with due respect that was a dangerous
conclusion (inaudibe) in few of the Kenyan political history. I think it must still be emphasized
whatever level of participation that may have taken place was a colonial process and it cannot
constitute a consultative process in the real sense of the word. And what consultative process
there was, was simply a colonial destination of the final act that came to be may be a generation
of liberty but I need to emphasize that.
And in agreement with the Dr. Kipkorir, unfortunately he made this comment, in his concluding
remarks that (inaudible) I don’t it would --- the duty of simply giving us the---- of the
independence Constitution. I think there was a purpose and the purpose was, what is it in that
Constitution that can inspire the current process? It did have some ---- clauses, what values were
they that inspired this current process? Because there is always a danger when it come from our
Parliamentary Constitutions of sighting the independence Constitution without going into the
contents of that Constitution. In the value system of that Constitution (inaudible) and taking us
back to simple ------ and I think we need to move away from that, what values were included in
that Constitution.
And talking about such values and their enduring nature and they have been informed the on
going discourse process. One comes to task with three critical issues. I call them the (inaudible)
President and Prime Minister. They keep coming up again and now political parties are taking
up the debate without informing Kenyan people about that federalism. President, Prime Minister,
what are they? I think that needs to be ---- more clearly (inaudible) and I think we need to look at
independence institution to clarify those two features.
At the beginning not many people
including the commentators understand the meaning of Federalism I am sorry to say or those
called Majimboism. It is being presented, militarism and federalism are being presented as value
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systems which they are, they are forms within which values may be embodied or may be
destroyed. And I ------ the federalism is just a form of Government. It can be a form of
democratic governance but it has also been a form of dictatorial governance. We have had
Military federalism in Nigeria for example this needs to be emphasized so that we do not jump
into that turbulence without proper décor and I think that is important.
This is (inaudible) the Senators, the House of Representatives ---- of Parliament that was the
game even up to these days, (inaudible). Why do we need Chambers of Parliament? Why was it
found necessary to input those data situation in the independence Constitution and again after the
generation of solidarity I need to part ways with my teacher Dr. Kipkorir. He is very angry with
Mr. Muigai’s ---- request, the Senate by then was a ----- of laws (inaudible) Are you saying the
House was full of Aristocrats. But Aristocracy you are talking about here is English (inaudible)
for the second time perhaps they were not very educated. Why are Aristocracy within the
Kenyans situation. One day when we, if at all we should have a Senate soon, it should mirror
Kenyan Aristocracy not British Aristocracy (laughter) and this is in total agreement with my
teacher Dr. Kipkorir.
We cannot be talking about independent decision (inaudible) Of course we talk independence
within our Constitution framework ought to be -------. How do you ensure that some of the
institutions which we shall --- with the duties of ---- shall be independent in the really sense of
the term? And independent from whom? I think that is important we will need to clarify the
aspect of independence. The Ugandan Constitution, if I recall correctly, they say it established
an independent Electoral Commission (inaudible) important concepts to even---- page to come
out. Otherwise, I have benefited a lot from both presentations thank you.
Prof. Kabira : Thank you very much------ many (inaudible) have come out, so if you don’t mind
I will ask Githu to, will be given three minutes to respond before we come to the block. But give
also Smokin made himself the commentator, I will give Dr. Kipkorir one minute to respond to
the comment of Mr. Githu.
Com. Githu : First of all I want to confirm that my children distinguished the crimes in the real
sense of that word. I am enriched with the debate on issues that I highlighted, the nature of the
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paper that I presented was to lay the issues and I agree entirely they are several issues that we
could encroach to interrogate more vigorously as we go along. However, there are a few
clarifications, I wish to make. I note that Kipkorir is a historian, but I do not quite agree with
him that Kenyatta was not a key player in the Constitutional negotiation process. As a matter of
fact, my understanding of the history and there are many authorities who ran the merger.
Kenyatta was the person who broke the deadlock, because in my judgement the delegation at
Lancaster bargained on the basis of you either agree with us or disagree with us, and KANU’s
position as I call it, we will not have Majimbo. It is Kenyatta, as recently as (inaudible) the
politics of the independent of Kenya, where in this country Kenyatta said let us accept Majimbo
because whose Constitution is it going to be, ours or theirs? And Mboya and company said it is
going to be ours, then when it is ours we can do what we want to do with it. So on the point I
disagree with -----.
Now the second issue where I tend to agree with ---- I think we must not allow ourselves to mix
issues of ------ and issues of substance. The imposition of the Constitution on the people of
Kenya in my judgement is a question of ------ if it had not been an imposition, as Smokin
Wanjala has so well pointed out, in that free Constitutions ought to have been debated, voted on
universal franchise by all the natives, they were not. It was because the British were more
interested in the form, in their appearance, in the symbolism and again Smokin has made that
point and I think it is very important we must be careful about the symbolism of what things are
supposed to represent and opposed to the ----- of what things actually represent. I therefore will
take the view that it is not true that the Constitution represented the aspirations of the people of
Kenya. Several of them were in detention, several of them were detained, several of them had
been moved into villages, several of them had been uprooted from their homes and
Constitutional process that did not involve them could not in any way represent their aspirations.
The other one is, I think I did not make myself clear on Executive power, I did not mean to say
the Queen remained the Executive, in fact I used the word a duality. The Executive power was
divided between the Prime Minister and the Government general so much so that when Tom
Mboya first moved the amendment to create the Executive President, the very (inaudible) he
gave was to suggest that our people are confused they do not understand that power can be in
more than one person. Africans understand -------like a chief, so that you have a Prime Minister,
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a Governor General, is confusing to the native, that was the ---. So I want to make that point
clear.
Executive power was diffused into two institutions, Governorship and Prime Ministership. And
in the context that Smokin mentioned it that is why we must be very careful in the current debate
about people saying, we want to retain a Presidency and we want to have a Prime Ministership.
And of course we must be clear who is Head of State, who is Head of Government. In a appeal
that the Attorney General published in 1991 which was withdrawn by the Kenya Government,
there was a most curious provision where the President continued to be the Executive and the
Head of State and simultaneously was assisted by a Prime Minister who was Head of
Government but whose Government the President controlled.
I think it is what my friend Wachira Maina would call a mongrel, and I think in our own minds
we need to be clear about co-habitation, we were warned about the dangers of co-habitation by
the French Judge who spoke of not the dangers then, the hardships of ------. Smokin has made a
point about House of Lords, again here I did not mean that what Dr. Kipkorir obviously
considers to have been the whole ----- of our political structure can be equited to the House of
Lords. What I meant was that it was a Chamber an upper Chamber to which bills went. Now as
to the competence and maturity and ability of the occupants of that Organ the House, I did not
offer an opinion but I cannot challenge the Professor’s judgement of those people in those days.
And I do hope if we decide to have an Upper Chamber as Smokin had suggested, we should be
weary of persons whose qualifications before we know ---.
Now the other comment mentioned is that the Local Government was not provided for in the
Constitution, as a matter of fact it was, if you look at this document part 13 there is a ---- portion
on Local Government. The danger was that Local Government was embedded within the
Region, it was a tough Government of the region and was under the unit, if you look at section
223 to 244 you will find that there.
To comment about Smokin, he accuses me, as he has for many years of apartination with
legalism for his own as an end in itself, I accept there is -----------. Okoth Ogendo taught me
that a lawyer first duty is to the rule its historical, social and other contents. It is a secondary
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consideration sometimes ------ led to sociology, historians, and politicians, so I am aware that it
is a measure of --- but I can see the large argument that Smokin made that we need to locate the
Constitutional experience we leave the political experience because later was for ---- and
probably there are people who qualify to do that better than I am. We then said that we must
explain how and why the original Constitution disappeared, I agree entirely only that is Mutakha
Kangu’s job oh, sorry, sorry Prof. Okoth Ogendo’s job. Then Smokin says, let us isolate the
values of the Constitution that we can salvage. I agree entirely I think I concede that this a very,
very important omission in my presentation, at the very end of my presentation I probably ought
to have drawn the attention of the participants to what structures within the original Constitution
are important and viable and what values are still critical and which we can use today.I admit
that, that is an omission, however I want to end with caution, in Kenya in this discourse, in this
dialogue on the Constitution.
I personally feel uncomfortable with a romantic insertion crept in because of the frustration
people feel with the current Constitution a lot of people who don’t want to think through the
problem of the ---- and what would they feel to be changed or salvaged. A lot of people think,
let us go back to the 1963 Constitution I think that, that is fair because that Constitution as all our
presentations have demonstrated and particularly the very impertinent comment by Dr. Kipkorir
about how the relationship between Central Government, the Region Local Government were
supposed to work. We must be quite sure in our minds that the answer does not lie in going
backwards, the answer lies in going forward. Thank you.
Prof. Kabira : Can I give you --Dr. Kipkorir: Yes one minute. I don’t think I can still feel responsible to say --- Let me start
with the last point on Local Government. I didn’t say it was not there, I just said I did not touch
anything on it.
All I would do (inaudible) (laughter). Can we agree that (inaudible)
Constitutional making, and I am just saying that (inaudible) and I like Dr. Ombaka’s (inaudible).
It was really eloquent and I must say that one of the corner stones of our Constitution is Local
Government and it was removed in 1966. And just to enlighten you further, President Kenyatta
and his Government, of course they were shocked to find that there was something called Local
Government and there is a lot of power, appointed a Commission of Enquiry to look at the role
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of the Local Government in independent Kenya, especially now that they have become a little
public. And appointed a Muzungu man called Hardacre to chair it (inaudible) call him back and
I testified before the Hardacre Commission of Enquiry and the unanimous view of those who
testified before the Commission of Enquiry was that the Local Government had a very important
role to play in independent Kenya like all many goods of the Nation and many Commissions
(inaudible) we have never heard about it then.
Now we can (inaudible) little --- of the Executive House (inaudible) of the House of
Representatives and the House of Lords, I think the time has now come to have a Senate, and
there are people like Ambassadeur ( inaudible) (laughter). And I have no --- judge for yourself
(laughter). I think that is the (inaudible). Oh on Kenyatta, I think very important, again I think we
should understand, I --- Kenyatta was obviously the Prime Minister, I think it was May or June,
1st 1963 and in November when Mboya came back from London having negotiated with the
Colonial Authority the final version of the independent Constitution and the KANU office with
Kenyatta as premier of the day. What I said was that really in this process I told you about,
which started way back (inaudible) was it in 1961 and by the time he came much of the
framework of (inaudible) was centralized. Thank you very much.
Prof. Kabira : Okay, thank you very much for that eloquent (inaudible) (laughter). We have
about 15 minutes, I think we will give opportunities to the other people either to ask questions or
to comment, give their own opinion whatever choice they will be making. The first hand I saw
was Bishop and I will move that way, so Bishop, Ratanya, and who? Professor Okoth Ogendo
and then Kavetsa then we come to ---.
Bishop Njoroge : First of all I want to thank the (inaudible) (coughing) for the --- of the issues
that there are. However, they have left me more confused and I think you have got to get me out
of this muddle. First (inaudible) so that of this house which has been (inaudible) time and again
and we have to structure it again but Mr. Muigai came up and said after all this house was an
importation so it actually was not --- you out, on the one hand one is crying and wailing that this
House has been dismantled but on the other hand one is saying after all this was not the real
house. I really get a little bit confused, if it was an importation what was wrong with all the
changes that were made when the African Government came into power. Now the second issue
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there is what Dr. Kipkorir said that people were consulted. At the same time he contradicted that
by saying every time he started a lecture he told the students, Kenya as an independent state is a
function of British colonialism. On the one hand over the statement, on the other hand what we
have has nothing to do with us. Now that I don’t understand.
And finally is the whole issue of values. If this document was not for us, the people who were
not consulted what were the values that went to making this Constitution? What is it that they
were really safeguarding? Now we now pay, let us go back to the first Constitution, which
means now we think the values that were safeguarded could be applicable now. I think we
should go behind to the original Constitution and ---- the values that were being safeguarded and
if those values are still in existence, it is possible that we can get to read these values but perhaps
the same thing on the Majimbo. We were told that people were appointed to the Senate
according to their tribes according to their districts. What value was in that, that wanted people
from their own Region to be able to come to the Senate to safeguard? That is something that I
would like to be clarified. Thank you.
Prof. Kabira : Thank you Reverend.
Com. Ratanya : Thank you very much Chairperson. I would like to run the attendants very
much starting from Mr. Mungai, Dr. Kipkorir and Dr. Smokin Wanjala, is it Smoking or Smoky?
Dr. Wanjala : Without G.
Com. Ratanya : So then I would like to assure Dr. Kipkorir that he is not alone (inaudible) like
me I was around also that time and I think I am three months older than Dr. Kipkorir (laughter).
So let me go now to the first question I would like to put in on Land. That is Mr. Muigai, you
have said historically land in Kenya fell in three categories, that one I agree, although you have
put in a summary form. We find that one would get away to what we call land meeting and you
have put it land meeting of Trust Land. It is not very clear whether it is native reserves and Trust
land or it is land in reserve or native reserves or trust land is it ------? That one I did get it
clearly. And whether when you say the land was in hardship or was in --- and the County
Council may be it was local authorities. Did that amount to absolute ownership by the local
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authorities or it was just held in trust which means the tribe concerned with ethnic groups still
owned land but then the County Council may be was a Truste? Or can the County Council really
fail and it owns that land? There I think you make it clear whether a native had any right on the
land as a absolute ownership or had to refer to the County Council ---- for that matter? So that is
a point to clarify Mr. Mungai.
When we come to the other point here also matters which way, as I have told Dr. Kipkorir, I was
also around - unless he can also correct me. Before our 1963 Independence Constitution, we had
several events, and may be you have not mentioned that to the elaborate letter, in 1961 and then
1962, there was something like coalition Government in Kenya where powers were shared.
There was a Governor there present, and the two parties Kenyatta was a ----- Ministers, Ngala
was also a --- Ministers may be they shared colonial issues and administration, so may be you
can (inaudible) for us because that presented the first Constitution of Kenya (inaudible)
Constitution. And whether we had anything to borrow from there or at least whether we can
copy anything from the coalition Constitution to the Independence Constitution.
The other point here (inaudible) we wrote events, with a Coalition Government, immediately
Kenya achieve independence, it was something like a dominion, because the Governor General
was around and we had of course invited the Governor General was around the Queen had a lot
of power over the dominion and also (inaudible). Later we had Republican Constitution, because
Kenya had achieved independence of that Republic in 1964 and the Regionalism. And then
several amendments. So Dr. Kipkorir can you tie of those from the Coalition to may be
Regionalism and ---- Constitution and take us now to the current review. Or how can those
events influence what we are supposed to review now, in the present Constitutional Review.
So I think without going very much I would like to end with this point on, I know that this action
of cultural values. These are traditional values in the Independence Constitution which was
actually ------. And it appears that these cultural values were completely ignored, now advise us
when I go and revisit ---- to check the cultural values which are in contact which we can borrow,
may be even religion I know that the African religion was completely forgotten as if Africans did
not have any religion at all. Do you mind if I remember my former teacher, Professor Mbiti used
to tell us an African is notoriously religious, and that one is in every action in every activity of
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African life is religious, but today we want to ---- up an African religion unless if you have an
umbrella of Christian or Muslim that cannot be ------- because we like having opinion. Can you
also be clear on that one whether we can revisit and what we can borrow from the culture, and
also the ethnic groups and also the Council of Elders? (laughter)
Prof. Kabira : Thank you, I don’t know whether we can argue. Are you asking Dr. Kipkorir to
present the paper on all those things?
Com. Ratanya : Let him present a little paper if it is possible.
Prof. Kabira: Okay, thank you very much. Kangu?
Com. Mutakha Kangu : Madam Chair, I would like to make a few observations. The first one
is on the issue of the values and which may give some reason why the Constitution was
dismantled. My position has been that the problem with Africa has been governance and that we
make struggles before we understand the concept and therefore we don’t struggle to replace bad
governance with good governance we instead struggle to replace the incumbent, the person in
office. You just need to look at the liberation movements in Africa and you will see that they
were all movements that were based on black replacing the white, they were ----- or most of the
movements had to put the word African in their names, we still have KANU here, we had
KADU and Tanzania there was TANU and even in South Africa lately we have had ANP. So
they really did not understand the question of improving the quality of governance, they were out
to replace the person in office. In this a baggage that we have carried on for a long time.
In 1978 many Kenyans perceived the problem as Kenyatta the Kikuyus and so the position was
how do we ensure that not another Kikuyu succeeds Kenyatta? And the issue of the (inaudible)
of governance were not addressed. Today we are yet to make even a mistake and that is why I
am warning. There are many who are ---- comes to this review in terms of the problem being
Moi, Kalenjins and KANU and so they only want the question of replacing him. Okoth Ogendo
described this process as the process of transfer of power, so I think we ought to emphasize that
it is not simple the question of transfer of power, it is the question of improving the quality of the
importance of governance.
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And so we should be looking at a Constitution that will improve the quality of governance. And
I think that this is what the British intended us to have. Even if they were trying to impose a
Constitution on us, they knew themselves that the kind of power they were exercising in the
colonial days was not good, was dictatorial, was not democratic and they would not see
themselves on the receiving end with that kind of power in the hands of an African. So they
insisted on handing over power to the African with a good Constitution. But because we didn’t
understand and we were not concerned about quality governance, we were only concerned about
transfer of power, we were eager to exercise that kind of power that the colonialists used to
exercise. That is why we rush to revert the colonial status and the amendments were to change
the relatively good Constitution to make it consistent with the bad colonial laws rather than
change the bad colonial laws to make them consistent with the good Constitution, what Prof.
Okoth Ogendo called a carrying forward colonial legal border which we have effectively done
and brought ourselves where we are.
Now which then raises the question of why did we get into this mix? Then, my friend Githu --to say that the British did not have experience in the contents of a written Constitution, I want to
say that indeed their Constitutional system was completely different from the American
Constitutional system that is based on Constitutionalism and even the inclusion of throughgood
with the American experience is the concept of making the Constitution, I think Throgood
intended to put in the Constitution the contents of American colonialism but our people did not
seem to understand those contents. And it was not just the British alone, our own people, our
own lawyers did not understand those contents and that how it became very easy for them to
revert back to the approach of the British fundamental sovereignty and I think that is something
we need to clarify and even involve in our reaching so that we do not continue producing
lawyers who do not clearly understand (inaudible).
Finally as a question my friend Githu, you talked about the detail in the Independence
Constitution about who has city toilets and about which school belongs where and I thing that
even the suspicion that our people have today it might be worthwhile, don’t you see to have
detail? Is the Constitution so that people don’t worry people don’t worry that if we go this way
we will be swallowed by these other people. We put it off even. Thank you.
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Prof. Kabira : Thank you. Kavetsa?
Com. Kavetsa Adagala : Thank you Madam Chair. The presenters, the two discussants, I think
this has been a very ----- probably just to build on something that Mutakha Kangu has just
mentioned. I know this wasn’t part of your paper Githu, but I am interested to know what went
on during the Constitution negotiations, in Lancaster. What was the level of participation of the
Kenyan representatives there? The native representative, if I may call them. And probably for
me if you answer that bit then I--. Do you think, even their level of participation or their level of
their level of involvement in the issues led to the latter, (inaudible) of a document they think you
have worked so hard to bring home, and then also the lack of a concerted effort to prevent that
recklessness in demanding that document?
Prof. Kabira : Githu or Prof. Okoth Ogendo.
Prof. Okoth Ogendo : I think at the rate the discussion is going I will not have to --- tomorrow.
(inaudible) the Constitution was dismantled and dismantled in a hurry, but at this point I want to
make two technical points for one, hopefully for one clarification. The second of the two points
is as follows: there are in fact three documents (inaudible). Githu mentioned two. He mentioned
the independence in ----- which is out (inaudible) But there was also something called The
Kenya independence Act. We did not content develop. The first tense of de-colonization only--that Her Majesty with the advice of the Lord Spiritual and Tempol. Enact ed a Legislation and in
this case they enacted the ------- called the Kenyan ------- He basically said that Her Majesty no
longer wishes to ---for or exercise executive authority over the (inaudible) carbing out legislative
on a ------ . One her Majesty has been advised by the Lord Tempol and Spritual, Her Majesty
then goes to the City Council and if you look at the Kenya Independence ----- she said she did it
on the advice of her -----. It is only the Piritan who can say now that I have been advised not to
administer for Kenya, how are they going to register and administer it themselves?
Then you have the Kenyan Independence for example which basically is saying now you go
ahead and this the way you are going to govern yourself and he -------by giving the Independence
Constitution.
And then you have Indepence Constitution.
In fact we have several levels
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(inaudible) The only in terms of the ---- limitation and the Constitution is contained in a schedule
(inaudible). The question is if you are interested in (inaudible) . Can Her Majesty in Parliament
withdraw (inaudible) There is a famous case that ---- in the High Court (inaudible) (laughter)
There was an election and he locked then he went and called the election for a week and he said
if they were not rigged how could the opposition win. (inaudible).It is Section 4 of that order if
you look at Section 4 it says that subject to the abolition of this order the existing laws shall not ------ to the Kenya Independence Act 1962 and there is occasion of this order
TAPE ONE ENDS HERE
Com. Kangu: There was KANU and even in South Africa recently we have had ANC. So they
really did not understand the question of improving the quality of governance they we out to
replace the person in office. And this is a budget that we have carried on for a long time in 1978
many Kenyans perceived the problem as Kenyatta, the Kukuyu’s and so the position was how do
we ensure that not another Kikuyu succeeds Kenyatta. And the issue of the instruments of
governance we not addressed. Today we are yet to make a similar mistake and that is why I am
warning there are many who are thinking in terms of this Review in terms of the problem being
Moi, Kalenjins and KANU and so they only want the question of replacing. Okoth Ogendo
described this process as the process of transfer of powers. So I think we ought to emphasis that
it is not simply the question of transfer of power it is the question of improving the quality of the
instruments of governance. And so we should be looking at a Constitution that will improve the
quality of governance.
And I think that this is what the British intended us to have even if they we trying to impose a
Constitution on us. They knew themselves that the kind of power they were exercising in the
colonial days was bad, was not good, was dictatorial was not democratic and they will not see
themselves on the receiving end with that kind of power in the hands of African. So they
detested on handing over power to the African with a good Constitution. But because we didn’t
understand that we were not concerned about quality governance we were only concerned about
transfer of power. We were eager to exercise that kind of power that the colonized to used
exercise and that is why we rushed to revise the colonial status and the amendment were to
change, improve the village new Constitution to make it consisted with the bad colonial laws
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rather than change the bad colonial laws to make them consisted with the good Constitution,
what Prof. Okoth Ogendo calls carrying forward the colonial legal bounder which we have --done and brought ourselves to were we are. Now which then raises the question of why do get
into this mixing my friend Githu hinted to saying that the British did not have experience in the
concepts of a written Constitution.
I want to say that indeed their Constitutional system was completely different from the American
Constitution system that is based on Constitutionalism and even the inclusion of
--- with the
American experience in the process of making the Constitution I think ----- intended to put in the
Constitution the contents of American Constitutionalism but our people didn’t seem to
understand those concepts and it was not just the British alone our own people, our own lawyers
did not understand those process and that is how it became very easy for them to revert back to
the approach of the British Parliament Sovereignty and I think that is something we need to
clarify and even involve in our meetings so that we do not continue producing lawyers who do
not clearly understand the difference between the two systems.
Finally as a question to my friend Githu, you talked about the details in the independent
Constitution about who runs which toilets and about which school belongs where. And I think
that even the suspicions that our people have today it might be what I though you said to have
details in the Constitution so that people don’t worry that if we go this way we will be swallowed
by these others, we put those details. Thank you.
Prof. Kabira: Thank you.
Com. Baraza: Thank you Madam Chair, I just that the presenter in the ----- I think this has been
a very exciting session. Probably just to build on something that Mutakha Kangu has just
mentioned. I know this wasn’t part of your agenda Githu but I am interested to know what went
on during the Constitution negotiations at Lancaster. What was the level of participation of the
Kenyans representative there? The native representatives if I may call them. It is probably for
me if you answer that bit then do you think either their level of participation or their level of
involvement in the issues lead to the rather reckless dismantling of a document they seem to have
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worked so hard to bring home.
And then also the lack of a
--- efforts to prevent that
recklessness in dismantling that document.
Prof. Kabira: Prof. Okoth Ogendo.
Prof. Okoth Ogendo: Chair I am hoping that at the rate in which the discussion I will not have
to speak tomorrow. But if I do have to speak tomorrow I will speak at length on the issue that
Commissioner Baraza says. Why was the 1963 Constitution dismantled and dismantled in a
hurry? But at this point I want to make two technical points and one hopefully one clarification.
The technical point is the following that there are infact three documents that one is dealing with
when one is talking about the independent Constitution. Githu mentioned two, he mentioned the
independence order in council which you have with you and schedule two which is in the
Constitution.
But there was also something called The Kenya Independent Act which is not contained in your
document. The process of the colonization always was that her majesty with the advise of the
(inaudible) stake holders, spiritual and councils. The enacted Legislation and in this case the
enacted Legislation called the Kenya Independent Act it is basically said that her majesty no
longer wishes to Legislate for or exercise Executive authority over this country called Kenya.
Casting out Legislative and administrative needs. Once her majesty has been advised by the
laws, stake holders and spiritual, her majesty then go to the British councils and id you look at
the Kenya Independence culture it says she did this on the advice of -----. She goes to the British
council and says now that have been advised not to administer, not to Legislate for Kenyans,
how are they going to Legislate and administer themselves? Then you have Kenya Independent
Order and Council which basically is saying. “Now you go ahead and this is the way in which
you are going to govern yourself” and she does this by giving the Independence Constitution.
And then you have the Independence Constitution.
So infact we have several levels. What you are looking at the Order and Council is subsidiary
Legislation. And the Constitution is compelled in a schedule, two subsidiary Legislation and that
subsidiary was enacted by virtue of an Act of Parliament to elect king. The question is if you are
interested in purely academic matters can her majesty in Parliament withdraw independence of
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the country? By revoking the Kenyan Independence Act. This is not just not a matter of
question, there is a famous case that was brought in the high court of the suit in which somebody
was arguing that her majesty does infact have that power and he was requesting her majesty to
revoke the independence of the country on ground that Mayhol Jonathan had messed up the
Government. What Jonathan had done in done in 1972 is that there was an election and he lost
the election and then he went on radio and said that the election were rigged. And he said if they
were not rigged how could the opposition win? And the finally the opposition won that there
was reason for rigging, so the high court was to institute a Legislative centre that her majesty
cannot do that.
The second technical part which is always of interest is section four of that Order and Council
and if you look at that section four, it says that “subject to the position of this order the existing
law shall not withstanding the enactment of the Kenya Independent Act in 1963 and the
revocation of the existing order continue into force after this Order but they shall be constituted
with side modification and application qualification and education may be necessary to bring
them into conform with this order.” What that section was saying is that indeed what Dr.
Ombaka called the foundation in the Constitution was actually the rule. What that section is
saying is the Constitution was patched onto an existing legal orders and I have add you
elsewhere. The public order for ----- was extremely oppressive and therefore in the process of
managing the Constitution whenever there was a link or rather a conflict between the values in
the Constitution and the existing legal order. The Constitution was always amendment to
conform to the legal order rather the other way round.
What has South African created to avoid that possibility, was to list those aspects of the legal
orders that would be inconsisted with the Constitution and Legislate them as all required all costs
to do so.
We will do that, we left to the court process of Judicial review to get rid of those
aspects of Legislation that would have been inconstisted with Constitution. Now that does not
seem to have worked and I have argued that part of the reason for the Parliament instability of
the 1963 Constitution was precisely because Government did not want to comply with the
Constitution they had this last powers in the ordinary legal order which was saved by that
independence of the Council. Those were two technical points, I want clarifications related to
that.
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On the same verse 13 in 1899 the Attorney General and the Solicitor General of the United
Kingdom told Queen Victoria that she holds Kenya and the taller that that mend that solicitically
she had sovereignty of the country and that she had title of the land.
That was the basis or
having the first ----- of this and you will remember the stories starting with the case around
Kabete of (1) Issac Wanaina and his brother Murito Waidanga that these two fellows had a
dispute, they went to court and the Attorney General had protectorate applied to be joined to this
dispute on ground that those two people didn’t know what they were talking about, the land issue
belonged to them. And teaches us in that rule that Isaac Wanaina and his brother were tenants at
will her majesty and that is the title of my book “Tell us of the cross.”
From that point onward it was the killing of this country that land belong to the Queen or rather
to her majesty or his majesty and that you derive your title whether it was free hold or whatever
from 1939 as a result to those two dispute and ---- that title held in the Queen was split into two.
What was had then been called the African – The Native Reserves became where held separately
under a trust. They were no longer from 1939 crown land. The rest of the country became
crown land but areas designated for natives were held by a trustworthy (inaudible) Because the
colonial Government had difficulty understanding how natives can hold Title to land, so they
created these corporations, to own land. Now, in 1963 with regionalism all the land that had
been held by these boards were then held by regions that again that the colonial Government
didn’t understand how natives could direct rulers so they give it to the regions. When the
regions were abolished then they become part of county council land. So the Trust land that
Commissioner Ratanya is talking about owe their origin again to ----in 1938 and this -- in high
court. And this is why Trustland remain in the Constitution, it is the most
----
in the
Constitution ever that we will have to deal with.
Prof. Kabira: Thank you very much. Kavetsa.
Com. Kavetsa: I don’t know whether I should follow ----. But my concern still when Githu was
speaking and was pointing out to the Lamu situation there, of how detailed the coordinates were
and how it was decided who belongs and who has what. My problem and probably the problem
that leads me to what I see as ethnicity verses cultures and traditions is that the values which
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were being fought for which some people have omitted here what happens to them? Because it
seems as if we went into British value and something else even as we are saying that African
were used to one authority so that was a value which was brought into --- to make a President we
told that. May be I should have asked the people we were with us in Mombasa the ones who
were actually there. Did they ever consider or was there ever this consideration, because it
seems to me the culture of values and traditions should have been dealt with in much detail as
the coordinates and all that, not only that I can see the value of senate which was ---that may be
they would have brought these values (inaudible).
So we talk about the bill traditional views as being democratic and that is only part of a century
and yet there are very any other centuries before that and non of it is reflected in the
Constitution. So it seems now it is okay what happened to – we had a conflict with the British,
we had a conflict with colonialism it was over land, culture, religion but what happens to this
values it is not may be actually the power of colonialism, nonetheless I would like to say that in
1963 I was there, I was noticing this thing and really concerned about what was happening but
just a mass thing or this nomadism that was taking place. Thank you.
Prof. Kabira: Thank you very much Kavetsa. Now it is thirteen minutes to lunch time and I
know I am not given an opportunity to this time. I am advised that lunch will be ready by 1.00
p.m, we will be served at 1.00 o’clock. So can I suggest that we use the next ten minutes to give
these other people (interruption) please. Okay that is well.
Com. -------The will still be and the plenary will continue but I think you can ask the presenter at
this stage to respond. We are still on the docket the whole day.
Prof. Kabira: We continue at (interjection) so what do you suggest? Would you (interjections)
shall we continue with continue with more questions and then they can go together with the
report. So we let the other people waiting. (interjections) lets meet other people then later and
then we will allow Dr. Kipkorir Chepkwony and Githu and --- can be with them in just a minute.
Okay take a minute exactly, then Raiji, Yano, Maranga --- thank you, go ahead.
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Dr. Kipkorir: Thank you Madam Chair. I am professionally like to respond to both --- and the
police, is about the minority rights, minority groups and is talking about mismanagable.
In
situation that they were in a certain profession in the Constitution but were there representative
from those groups who are really in that group which went to the meeting for this Constitution.
And Mr. Mungai immediately that the -- council I see that there is specifically mentioned that is
before the Constitution itself. The --- Council made to and -- would draw the attention to
question 19 of the order in council -- which appears on page 14. It says the Governor General
may by regulations which can be published in the Kenya gazette may set provisions as appears in
with necessary or experience for the purpose of ensuring Executive Government in regulation to
Eastern Province. And without prejudice in the knowledge of that power it may pass strict
regulation ---- temporary adjustment --- qualification for --- or exceptions to the provision of
the Constitution. Which is a very --.
I don’t know what was the intent of this --- in as past to enlighten us on the historical? --- in
order to realize this was --- will it perhaps the British new that this going to be a particularly
controversial region or an area where -- is improving the results of the referendum which are
conducted and perhaps they could be derived from the central Government for this region. And
how are these affected that region that region if it is in order? I also wanted to know from Mr.
Korir if he could remember I see that the North Eastern the ---- were sending senators to senate,
I assume that from region at least three of the members to have come from there. But at that
time I think it was the it was the time of the Palestine war and I am not sure whether my story is
true, but I think some boycotted that the participating in the main thing.
Again in sometime I guess you are sending you ---- I see that the --- maker after independent
the Government declared some emergency in this region again.
Prof. Kabira: Thank you. Raiji.
Com. Raiji: Thank you Madam Chair. First of all I welcome Mr. Muigai’s paper as a major
contribution towards the ongoing debate on the Constitution. Because eager to most of the
People especially politicians who have been creating a better Constitution in terms of especially
Majimbo and the President. I am glad to note on this paper that it has come out very clearly that
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those two issues can be necessary issue that will have to be addressed. There are other issues
such as land and so many other things that requires to be addressed, and I hope that has ---- we
shall not lost in the debate and concentrate on only two issues when there are so many other
issues that are still to be addressed.
Secondly, I would have wanted to hear more about the concept of devolution of power. It
appears to be have been confusion that Majimbo means devolution of power and therefore are
there other forms of devolving power, what of the issue that was raised by Dr. Kipkorir, the local
Government? Can they be viable instruments for devolution of power? Can they co-exist in a
regional setup or is it possible for that form devolution to go on directly from the central to the
local authority?
Lastly, there is an issue that I see you have mentioned it page 2 that the independent Constitution
was in this country driven by certain principles one of them which was the fears of the
minorities. And by minorities it was a --- by ratio of minority that is the Europeans, the Asians,
Arabs and to come extend may be the Somali’s, I think that was a different issue.
Dr. Kipkorir: By the way the Somali’s were a race.
Com. Raiji: They were treated as a race.
Dr. Kipkorir: Is that true ---?
Com. Raiji: Those are the fears and these obviously we quite out of proportion to their numbers
of these Europeans and Asians and to some extent the Arabs. Now, perhaps Dr. Kipkorir as a
historian elaborate on this. These fears are they still present? Because I think the debate other
people have joined the minorities and to me it appears the consequences of the minority circle
becomes something of an ---- rather than a historical fact. So perhaps I will want to know
whether or not these fear which are drove the 1963 Lancaster Constitution what about if there
are still there and need to be addressed or whether perhaps they have now been arrayed and
others still concerns have arise? Thank you.
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Prof. Kabira: Thank you. Yano.
Com. Yano: Thank you very much and I would like to thank our presenters ----very good
recommendations. Commissioner Githu Muigai mentioned the issue of the Coast Province and
Somali wanted to steal. Now, what comes to my mind is as we are now in the process of trying
to come up with the Constitution for instance and I think what comes into mind is I also think
that it is important that we know the real reasons why this section is going take place and the
varies features it was going to take. So that may be we should come up with a discussion paper
as we go around taking views from Kenyans. Thank you.
Prof. Kabira: Okay, Maranga:
Com. Dr. Maranga: This question may be it will go to Githu Muigai and Kipkorir. The first
one: before colonialization or colonialism I think the African had their own way of governing
themselves. Were they having any form of central power? That is my first question, you can
answer it or Kipkorir. Number two one of the issues which Githu Muigai raised is that the
Constitution was already made Kenyans more democratic but then I want to ask were native ever
democratic, and if so why is the new Constitution at independence make them more democratic?
I really want you to answer that question.
That my last question which I want to raise which also will go to Githu Muigai is on the issue of
values. At independence you have indicated may be one of the values ----- but I do find that,
that is a contradiction who really decided on these values which were taken on after
independence Constitution? And Dr. Kipkorir did argue that it was not imposition from the
British council if the so called natives did not decide on those value then those values were
brought from somewhere. And infact what you have been using is the export models of those
Constitution which were being exported in various countries in Africa. So I really want to
suggest here that there were no African values which were actually put in this Constitution. May
be this is the time we need to discover ourselves. Thank you.
Prof. Kabira: Thank you. Munene. Or sorry Mrs. Asiyo you have the draft? Okay.
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Munene: Thank you, I enjoyed the presentations and the increasing or growing happiness.
(Inaudible) he was very emphatic that the local Government disappeared or started disappearing
in 1966. The question is can we link the political ongoing in 1966 with that decision to make
them disappear. Can I give you examples in other words? Do want me to give examples?
Com. Githu Muigai: That will ---- political ongoing which happened when?
Munene: At that time. At that time Odinga and his ------ which was powerless and they only
place where there was powerful --- in his exercise was in the local Government particularly in
Nyanza. So is there a linkage between that and the….. That is what I was trying out.
Prof. Kabira: Thank you very much. Now, the last person Tobiko.
Com. Tobiko: Thank you Madam Chair. I have few questions. One my understanding of this
seminar is that we are to familiarize ourselves with the independent Constitution and I
understood from the opening address that what time we are looking at is the foundation of this
big House for Kenyans. But now after the presentation of Dr. Kipkorir I now understand that
were pre-independent Constitution. I really ---- to, then are we now surely then starting at the
very beginning. Don’t we then have to have started at the beginning of this one. Two, this
question I get it to my colleague Githu Muigai, he seems to suggest, as I understand him and you
will correct me if I am wrong, that the Majimbo portion of the independence Constitution was
complex, was unworkable. I wonder whether he is seem then to a reason – that the reason why it
had to be done away with was because of the alleged complexity.
Prof. Kabira: Thank you very much. We had agreed a few minutes ago we are going to raise
most of the question and direct them to Commissioner Githu and who Smokin Wanjala and we
give an opportunity to Mr. Musonik.
Com. Githu Muigai: Thank you very much Madam Chair. There are many things which were
being addressed to Githu Muigai and myself and forgive me I should be unable to deal with
some tangles to correct, to segregate, and to deal with mild specifically and also if I should
commit any point that was specially drawn to my attention and provided if the Chair allows
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somebody can draw-----. Can I deal with the local Government first? The very last question the
answer is no. The dismantling of local Government today and immediately with elevation of
people called “Regional Government Agents” becoming District Commissioner and the
transformation of somebody called “Civil Secretary” who own the regional office into Provincial
Commissioner. In that was very strange move and Githu Muigai has addressed this very clearly
and I don’t want to explain it further. A decision to have a President on 12th December 1964 was
a momentarious. It was a Constitutional amendment which I think (inaudible). It transformed a
Prime Minister who previously was supposed to Chair Cabinet meetings and to promote
Government policy and advice Governor General on what was crucial. And the Governor
General was representative of the crown and he was made to use the complication, the limitation
the crown under the British Constitution and under the Common Wealth arrangements.
The transformation of the Prime Minister was such that it came, was only Prime Minister but
Queen announced and thereafter began exercising something called powers of the crown. Which
powers in pretence were exercised in consultation with appropriate police, British Council, the
House of Lords and the Cabinet and so on. Here in Kenya our President now becoming the Head
of State was able to exercise those powers without (inaudible). Now, in that process you see the
politician, Prime Ministers/heros of the State making decisions which no one challenges. For
example, very early in 1964 (inaudible) somebody said wananchi or the incident tax all graduate
personal cars VAT which was paid by every able bodied person. The highest was six hundred
shillings and the lowest was forty-eight shillings. Every able body male and to pay (inaudible).
Somebody argued it, you said “hii kodi ni nyingi sana, imenyanyasa wananchi” so reduce it to
twenty-four shillings, an act of fear.
No consultation, no registration what was the effect of that? Local Government revenue was
imparted on this. Eventually that tax was abolished, it was supposed to be sub-ceded with grant
from the central Government which was distributed on the authority of a Minister who now was
acting as Minister and taking into where Government of no both support and if was not in the
(inaudible). Well Government got a lot of support when the draft sailed. But that is the begging
in other words it had nothing to do with the --------. Although Government had been dismantled
because local Government exercise a lot of functions which central Government wanted to
exercise.
It ran primary schools, it ran rural public health care system. Local authorities
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managed public roads in their areas of domain. When I was counting ---- I looked after all the
roads of the republic within the five district including Nandi, Keiyo Marakwet, West Pokot,
Trans Nzoia, Uasin Gishu plus the extra district of Turkana. All of them including the Air troops
they were looking at us by the help of County councils and of course central Government hasn’t
not created Majimbo discovered that contract and things like those it had to squeeze, shout and
so on. What I mean (inaudible) I hope I have answered that question.
Com. Githu Muigai: I was just concerned why 1966
Com. Githu Muigai: It is just when it began the very first time, they had to begin to something.
Just tell you the point I hope you don’t mind Madam chair. When I saw the independent
Constitution shaping up I realized that there was very little for me to go and do with central
Government because I wanted to apply to join civil service. So the civil service is something
much smaller than even at independence. Local Government was going to have scope of
employment and a lot of my colleagues from Makerere applied to join civil service. I know -Mwangi, and don’t if there is anybody who knows Mr. Mwangi, he was a county clerk in Nyeri.
Legan Mbugua, Martin Mbugua went to join Nairobi city council he ended up being town clerk.
(Inaudible) went to local Government he put himself where real work was going to be done,
they put themselves in the central Government. Do you understand now? Alright, so I have an
announcement actually. So it is a feeling infact the Vice Chair said you want to look for the
cornerstones which have been dismantled, which have been removed. Local Government was
left at independent was a solid (interruption) of representatives.
Now, there is a question asked by my elder there, it is a very long question if you want me to
come back again I will come back you know very well the process is very long. I guess that one
goes to 1948 (inaudible) when Eliud Mathiu was nominated to legislative Council. The process
of transformation of political governance in Kenya and the gradual transfer of power to African
that is much earlier and this plans (inaudible) and this is where I will disagree but I am not sure
we will disagree very much when I have explained the various components of the land and
towards independent. And they consulted process and there was a lot of consultation. One point
Githu made and I totally view it that after you will feel interested, it is well taken care of, this
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matter. I want to suggest it too that in mind ---- the British were not concerned on the interest of
such parties, having told the white occupy your land at 1959 (inaudible).
The price of land in the White highlands was fixed at the prices of 1959 after that settlers could
sell they could not lose money on them. They are very happy they are not interested. So may be
in was our Constitutioners, the Asian were not a factor so were involved. And they feared
genuinely somebody questioning here. They had no front and the fear came in and as a result of
those fears these minority rights were entrenched in the Constitution.
It added on the
Constitution “ why are you worried accept everything, let this Constitution come in, it is now our
---- we will now --- according.” Why are you writing the cost? Don’t forget Congo became
independent in 1950 and Congo had at that time only six people with high school education and
one graduate. And Kenyans said if Congo can become independent why not Kenya. So the
British also were in a hurry and we were in a hurry so the process towards the end was rushed
but make no mistake there was a lot of consultation. The Constitution was not imposed if it was
then Kenyatta was a liar who said after all “Uhuru hatukupewa tulinyakua Uhuru wetu” true or
not?
Well of course we know very well that it was just a political thing itself but there is an element of
truth in it that we arrive at the Constitution.
It was imperfect but because we wanted
independence from for them quickly we were going to sort out the bad thing after that happened.
And as I told you, I think there that I have made a point that in most apart from regions --- most
of the people who were involved in the decision ----. Tom Mboya was the architect of the
Kenyan Constitution. Thank you very much.
Prof. Kabira: Thank you very much. I want to take this opportunity to really thank Dr.
Kipkorir for being with us since morning and he says he cannot be with us in the afternoon. So,
we want to thank him very, very much and to assure him that we will have continuous
consultation with him as we move into the turbulent waters as they were called by Smokin and it
will help us to relate the grounds that (inaudible). Thank you very much.
We are going for lunch and we are all invited but Karissa from the Administration said that he
wanted to talk to you about some Administration matters. Otherwise, are you there Karissa?
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Karissa: Yes.
Com. Wanjiku Kabira: But you seem quiet. Where are you Karissa? Why can’t you talk to
him?
Interjection: We will not see him long.
Com. Wanjiku Kabira: (Inaudible)
Interjection: Loudly.
Com. Wanjiku Kabira: Quietly. Thank you very much. (End of side A; Tape 2)
Com. Githu Muigai: …………Prof. Macharia, you took some of the issues and direct their
ways. I am not sure I will have answers for all the questions. I don’t know whether Bishop is
here.
Com. Bishop Njoroge: Yes, I am here.
Com. Githu Muigai: Yes, I wanted to answer you now that you addressed the issues that you
had raised. One of the questions that the Bishop asked which recurred in other questions was,
“Why do I say that the Constitution was an imposition?
And if the Constitution was an
imposition as I said it was, what could have been wrong with the amendments that we are
making? Isn’t it wrong to condemn that it was an imposition then somebody was wronged, and
amending it was a good thing?”
The other question the Bishop posed was what value is the Constitution? Kavetsa also asked the
same question? Let me take the first question. Whether it is that the Constitution was an
imposition. What I intend to convey is that it was not a product of genuine democratic dialogue
among the people of Kenya. As Dr. Kikorir confirmed, African elected members did not get into
the National Assembly until fairly close to the end of the (inaudible). And even then it was not
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on the basis of free and fair elections conducted on the basis of universal surfrage, on the basis
on one-man one vote. Over and above that, and this is the point that I really wanted to make, the
Constitution contains many aspects that were not negotiable and were outside the parameters of
what the colonial power was giving to negotiate.
For example, its basic structure was not negotiable. We keep asking ourselves what are the
values within the judiciary, the legislature, the executive; they were not negotiable aspects. Not
to say that we have found them to be wrong in any way but to suggest that in its basic provision,
it was not negotiable. Infact, I personally see whether one is talking of the product itself or the
reconstitutions of Constitutions.
What went into that process was a fleshing out with a
(inaudible). What actually had been determined by the lawyers in the colonial would be the
decolonization Constitution. That’s why I call it the (inaudible) Constitution.
Therefore, when a non-lawyers looks at that process and then asks, “Is this what the founding
fathers of Kenya negotiated?” I think that the honest answer must be the issues on the table for
them to negotiate were very few. Majimbo or regionalism or federalism was the most dominant.
With it went other (inaudible) like what form would local Government assume as we have seen
and with that also went other (inaudible) like how would you address against unilateral
amendments and then the see need to (inaudible)
The other thing that was very core in the negotiation was land and Prof. Okoth-Ogendo spoke
fairly elaborately on that question. The rest of the Bill of Rights was not negotiable. It had
found its way to the Constitution from the European convention and it was not negotiable. It was
inserted by the manner it was inserted. The way judges were appointed and so one and so forth,
all those were kind of non negotiable issues. Dr. Kipkorir alluded to the capacity of the African
delegation to negotiate in this.
I think that if we all next to ourselves, we must conceive that there was neither the professional
nor political know-how to allow very serious negotiations at the front. Remember KANU, Kadu
and whatever had been hurriedly put together as political parties and I don’t want to go there
because I am not an expert and Prof. Macharia could want something in it or Prof. Salim will
want to say something about it.
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It is quite debatable whether KANU was a serious political party or even whether Kadu was a
serious political party. It’s my view as a non-political scientist and as a non historian (inaudible)
would be known. They were coalitions of tribal chiefs who came together to discern ethnic
enduring. I see Hon. Phoebe Asiyo disagree and therefore I will not push that much further.
So, expect the civics money, when you think of political parties in terms of disciplined
organizations that are vehicles to achieve political power disciplined enough to sustain the
control of Governmental machinery and so on, KANU was not that for sure neither was Kadu.
Infact, between KANU and KADU probably KANU may have had a slightly higher number of
people with the experience in justice.
That brings me to the point - I see Charles Maranga is not yet back. So, when Charles Maranga
asked, “I’m I saying that the Constitution will convert Kenya into a democracy?” I think I did
not express myself clearly. What Prof. Yash Ghai has written and what I personally think is a
very accurate description of what happens instead. He said you have a territory called Kenya.
By the way part of which is a colony and part of which is a protectorate. The people in the
protectorate is the mwabao have very little in common with the mau mau – let me give that more
dramatic example. The people in Mwambao have very little ……………with mau mau. Infact,
it may very well be that it respect of some of the territories of Kenya – take North Eastern which
has an (inaudible). The people of North Eastern never lost the singularity of partheids. They
never wanted to be part of a country called Kenya – they never wanted. At any rate, the Somalis
didn’t – may be the Boranas or whatever but the Somalis were very clear. They would secede
and go and to a territory called the Greater Somali.
Yet, the Constitution assumes that all these people because of the Constitution will suddenly live
together harmoniously, peacefully and they would become the State of Kenya that would evoke
into the Nation of Kenya.
And Yash Ghai’s argument is that from independence, the
Constitution was burdened with a load it could not carry. Kenya was a country of serious
divisions which were racial. I disagree again with the learned Professor when he says that the
mzungu was irrelevant after he had been told his land would be purchased. Not true – not that the
Asians would be irrelevant after the independence question had been settled.
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Infact, what happened to us and the historians are in a better position, after the Devoshire white
paper in 1923 – let me take one step backwards. The reason the Devoshire World paper was
from oriented in the first place was because the mzungu and the mhindi were fighting over the
Kenyan territory. The Mhindi was saying, ‘we want to be allowed into the white highlands, we
want to be allowed to elect people into the legislative council and so on and so forth’. And the
debate became a debate of the expatriate communities and the Devonshire white paper said – I
don’t have much a fact – it is neither your country nor your country, it is an African country and
Kenya was developed in that fact. But the mzungu never gave up. He then sought to make
Kenya what Zimbabwe was to become later and settlers controlled independent territories.
Interjection: Slightly out of another Devonshire white paper.
Com. Githu Muigai: That’s right. (inaudible) of another Devonshire white paper. The mzungu
sought to make an Ians Smith Regime in Kenya. So, all the way to independence, I do not agree
with Prof. that you could write off the interest of the white settlers and even today I think we
could try to make a Constitution and believe that we can forget the white tribe in Kenya, it would
be imagery (inaudible) a mistake and we can debate that later.
So, Charles Maranga I did not say that the Constitution would make the native democratic. I was
saying the burden – one of the burdens the Constitution was supposed to carry was to teach
democracy to people who had been subjected to over 70 years of authoritarian rule. Are we
together? We were - the Constitution was also supposed to bring the people – North Eastern, the
people of Central Province, the people of Rift Valley and weld them together into a nation that
had no divisions whatsoever. That was the assumption of the Constitution that a nation would be
welded out of these diverse communities.
On the other hand, it was also the assumption of the Constitution that religious differences –
there is more reference in our Constitution except on the cross on discrimination about the
autonomy of religious communities. It was assumed that somehow the Constitution would be
able to contain the cleavages in this society of that nature – of a religious nature, that’s what I
was saying. Yash Ghai, now that he is not here to represent himself, may be I should present his
view – in his writings his argument is that because of this heavy burden put on the Constitution,
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even if you were to subtract the political instability of the ruling elite of the (inaudible), it was
already unstable.
One of my arguments – I am now happy to come to my own argument for a change – my
argument which must be the only one I have made of an original nature is this. The Constitution
of Kenya in the hands of the political elite who brought it into vain and who governed the
country with it became an opportunity to sweep under the carpet very fundamental forces that
have always been in play in this country. Shall I put it differently? Yeah, because I didn’t like
how I put it. The mzungu contained the cleavages in this society by crude force. He contained
the colonial state contained the differences and radical forces within this society by crude force.
So, whether it was ethnicity, religious differences, class differences like the class differences
between the landed and the landless and so on and so forth, they were all contained by the use of
crude force. That is why in our Constitution emergency powers occupy a very dominant and
important section and Hassan was asking me at lunch time, ‘why did Kenyatta declare a state of
emergency over the North Eastern Province hardly three weeks after independence”?
Precisely, the Constitution was to be used as an instrument to contain those forces that had never
been addressed since independence. Let me tell you why I think our job is very difficult to me. I
think the gini is out of the bottle; the gini has left the bottle. The Constitution that you and I
must make now we cannot return these forces back to the bottom. Ethnic expression and identity
and pride in it are now common things and sometimes you hear them prosecuted in various
ways. But else make it a decision and we must confront them head on and whether we confront
them by the institutions that (inaudible)
Religious divisions in this society are more dominant now than they were at independence. Isn’t
that ironical? It shouldn’t be; it is scientific because this time they have all been contained in
two forms; the autocracy of the colonial order and the dominance of the executive authority in
the post colonial wards. Let me tell you what will unravel even more instability is when we do
the Executive.
When we undo Executive authority and undo the centrality of the Governmental power, you will
see the unraveling of more instability because there will be greater expression of autonomy and
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independence. Does that mean I don’t want executive powers unraveled? No, I used to tell my
students when I was a teacher of professional heritage, I used to say never ask me what I do
because that is not why I am here. I am a sign post that points to Mombasa but I have never been
to Mombasa but I can tell you if you (inaudible) surely you will go to Mombasa.
I hope I have answered that question on why the Constitution was an in provision and why the
changes came. Let me say one small thing about why the changes came, Bishop. Kenyatta’s
attitude and KANU’s attitude was a simple one; we would never become independent if we
continue to dialogue with the colonial authority with our feet dug in on the majimbo question.
Let’s give in on that question, what else do they want us to give in to? Let’s give in on that other
question and then you will take home this Constitution and finally you will do what you want
with it.
If you want to know what Kenyatta thought of the Constitution, you should remember what
happened after Ngei lost the election. Because then, Kenyatta says to Charles Njonjo - I have
reason to pull that subject – I want to pardon Ngei. Mr. Njonjo, a much vilified man in our
times, may be with some justification said, ‘ You can do that’. Why? Because the Constitution
says you can do that. Then Kenyatta says to Njonjo, ‘then amend it’ and Njonjo says, ‘That’s not
a good idea’. By the way, I think that that is part of reasons and Margaret Nzioka who drafts
pages here should (inaudible) how they will do it with my friend Jeremy there – Nyegenye. I
would never have amended the Constitution to pardon Ngei; I would have amended the Election
Offences Act and inserted the justice more provision that if you are found guilty of an election
offence, provided however – and I know Ghai doesn’t trust my drafter - but I think from there
on that would have been taken care of.
But Kenyatta said and I quote from what I hear, when Njonjo raised those issues he said to him,
‘Is it your mother’s Constitution?” I imagine he spoke to him in Bahati. So, I imagine Njonjo
told him, ‘But I can design it’, then Kenyatta told him, ‘Of course you can.’ I think that without
trivializing the issues, we must bear in mind that – and that is what I have mentioned in my
extras there – that the political elite who negotiated quoting quotes in the Constitution and who
inherited it did not have a lot of respect for it. It is so much so and I think that came out from the
presentation in the morning that the Central Government was required as a matter of law to those
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funding for religion, they didn’t. They held the religions in utter contempt. I have heard that –
you quote me I am with that – I have heard that people of the highest possible authority Duncan
Ndegwa who was implementing the Constitution as you secreted he said we were never going to
do it. I said, ‘ why wouldn’t you obey the law?’ because it was from anywhere from myself –
that was the attitude.
So, Bishop if you ask me why was the Constitution changed? Why were the changes deemed
necessary? It is because Kenyatta and his team thought that they would rewrite the Constitution
so that it would look like the Constitution they would have wanted at long last and they spent 10
years doing that and may be more – between 1963 and your paper..
Interjection: No, just 1969, ten members of seventies.
Com. Githu Muigai: Exactly, and they rewrote them all and that is where Oki Ombaka’s point
in the morning was very pertinent. When they started amending the Constitution, they had no
wholistic theory of what the Constitution involves. So, when they started undoing the majimbo
provision, the Constitution started to skew, it started to lean like the leaning tower of Pizza.
When they started accumulating Executive power, they took them and brought them to the
presidency which was then no longer one of the three pillars – or is it what do you call the
whatever of the African (inaudible) Whether one of the three supports of the (inaudible), so the
Executive became taller, bigger and bloated yet it, was meant to hold a Government together
with two other small organs that were beholden to it and that is where the Constitutional
instability built in and everything else was from there – shall we say down.
You asked me Sir, what value did the senate represent? I think in theory the senate was a good
idea but the more I think about it the more I think we should consider it as a serious proposition
not only so that my friend Pro. Salim who has said he doesn’t want to go there. In theory, the
senate was intended as a check on the House of Representatives. Remember – I hope we have
noticed by now – you remember when we visited the honourable member of (inaudible) His
Excellency the President, one of the things he said was, ‘Nyinyi ni vijana na damu yenu ni moto
inakimbia’. That was the theory behind the senate that in the House of the Representatives, large
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things may be done but in the senate there would be cool and level headed individuals who
would contain – that was the theory.
Interjection: That is why it is wrong.
Com. Githu Muigai: So, my friend Ratanya asked me, “Is there something we can learn from
the power sharing and arrangement of the immediate independence?” I agree entirely’ I don’t
know we can put this issue now that we are speaking among ourselves (inaudible). I think part of
what is wrong is the way this issue has been presented. Sometimes, this so called concept of
power sharing is presented as if popular Governments should not govern. They should be
obligated to have with them unpopular people and individuals but I think that the concept
properly constructed is a good one and I think it was intended to be an all indusive Government.
I think Mutakha Kangu would want to mention something about the South African experience
immediately after apartheid. There are some people I believe who never took their positions in
the power sharing arrangement but most others came on board. I think the ……………………..
Com. Mutakha Kangu: He dropped but there was a commission for pulling out if you don’t
want and at a later stage himself and his party – the national party – moved out.
Com. Githu Muigai: So, I think Ratanya that one of the – and we must remember how closely
connected the Constitution process is to the political process.
One of the reasons our
Constitutional process has been - for lack of a better word – unstable, is because of the premium
we have invested in the Constitution in the control of power because under our current
Constitution, independent Constitution, the winner takes it all. So, winning is a name in itself
and therefore, then the way that political parties and political blocks and political elites relate to
each other is in a state of hostility and I trust and think. It may very well be that within the next
10 years or so in this country, it would be useful to think very seriously about broad based
Governments of national unity bringing all shades of religious opinions, racial, ethnic,
ideological – those of us since the death of my late friend Christopher Mulei, I am the only paid
up member of the socialist international. So, people like us socialists may be brought on broader
…in the Government that is home.
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Mutakha Kangu made a pertinent point; I think more of a comment than a question to me where
he says that in this country historically, we have been focusing on the wrong thing. Instead of
focusing on the instruments of power, we focus on those individuals or groups or collectivities
that appear to have power and that is a wrong thing and I have nothing else to add to that very
apt observation.
Nancy Baraza, I have already mentioned that I have some doubts myself about two things. One;
the natitude of negotiations of the Africans at Lancaster. Actually, that was quite – the latitude
was very narrow in my view and I don’t think it is not that it did not raise issues, it’s just that
those issues were not on the table. In every respect, for the majority the issue was land. Land
again (inaudible). So, you can see for example, as far as KANU was concerned and especially
the large – remember KANU was a successor to a series of parties which were dominated by the
Gikuyu and their cousins. One of the most crucial issues for Kenyatta for his legitimacy and for
KANU was handing back land to the peasantry.
One of the issues upon which the Kalenjin, the Masaai and the Kamatusa in general would not
move at all was on the issue of land resettlement of the Kikuyu in the Rift Valley. So, data were
drawn on this issue and it overshadowed everything else. I don’t know Prof. whether you want
to add something. I think that for me as an amateur historian, that was the most fundamental
issue upon which people were. Therefore, when we keep saying once there are other issues that
they debated on, all the other oscillated around the issue of land other than of course the broader
political question of when is the mzungu leaving and of course the Africans were not reminded
of that point of when the mzungu was leaving. There were many Africans who didn’t want the
mzungu to leave and that is another matter.
So, Nancy, I hope I answer you when I say at Lancaster the issues were so narrowly defined that
there wasn’t much that could have been brought to the table and in any event the agenda of a
Constitutional settlement in Kenya has been brewing for over 50 years. So, they were concerned
about ……………The understanding also finally of the Africans about what was the
Constitution was very different from the one we have now.
The Constitution would be
instrument that would bring independence. The substance, the detail of the Constitution did not
concern the negotiators and that is another issue.
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When we say the Constitution was dismantled recklessly- I will not use recklessly - the Gullu
would use ruthlessly. I would make two arguments.
One; the people who amended the
Constitution in my view even if they wanted to achieve the end that they did, did so very
incompletely. One of my arguments is that the lawyers who served Mr. Njonjo – (inaudible) to
mention Mr. Njonjo himself – did not do a good technical job in the amendment. I think that if
there were a good draftsmen like some that I know who are with us here – drafts women and
men – would have done a more competent job achieving the same end and I am not agreeing
with the ends.
So, I think that who is right, there was brutalization of the Constitution. When they went to
remove the majimbo provision, it’s like the surgery was not by serious surgeons at all and there
were organs that could have been left in place that were ripped apart when this job was being
job. So, I would call it an incompetent………………..Two more, we invite somebody and then
we - Prof. Okoth-Ogendo thank you very much, you brought my attention to this point that I had
forgotten; the Independence Act of course was the basis of the order I come for, it was very
reckless of me not to mention.
But I think the only other thing that I should have mentioned in regard to that was that there were
two different – decolonization was affecting two distinct territories and the protectorate was one
– the sultan’s former territory was one; (inaudible) as the other and I think that …………….
Kavetsa Adagala’s point is very much ………..and I wonder whether I am the right person to
make a reply to that. What are the African ………… that should go into Constitution? Again I
think infact by asking that question you answer part of the question the bishop asked. What
values were being put into the Constitution and I think that the last consideration was African
values. There was no consideration but I wonder whether we can make a cutting of our African
values. I know that the respect for family, the respect of your elders and so on and so forth, the
solidarity of community and so on- I don’t know in what ways we would make them into part of
the Constitution but I conceive that it is very important.
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Com. Charles Maranga: I was just going to ask, how come you never compare British with the
articles because the British has a new Constitution, the Africans had a written Constitution. How
comes somebody (inaudible)?
Chairman: Next time address the Chair.
Com. Githu Muigai: I think that was a decision that had been made as a political decision that
there was no other way we were going to be colonized because as I said earlier, the tectonic
forces of the colonial states were such that you couldn’t leave them on their own – they would
explode which is what happened in the Ngong Hills. You had to attempt to channel them into
some kind of institutional oath and a written Constitution infact. Charles, I don’t think that I am
a very good defender of the African ways. So, I think you must address this question to
somebody else.
I am a little wary of the romanticism that goes into how Africans foddered their lives, how
peaceful they were and how orderly they were and how democratic they were.
Interjection: Shall I intercept at that point and say we are going to organize a seminar on
culture, ……………..and unity and then we can address that issue.
Com. Githu Muigai: Yeah, I know there are people who are doing that. Is that concerning-------- Hassan is not here who was worried about the Somali question which I am trying to answer.
Infact, other than the section Prof. Okoth-Ogendo showed today which is section 4 of the order
in council, the other section 19 that Hassan pointed out was a very draconian scene. They were
allowing not only for the amendment or modification of oral, even modification of the
Constitution. In my view, a blatant and Constitutional provision given the Constitution’s old
boast that it was the supreme law. So, if you are the supreme law you cannot be modified by
anybody including the governor and I am not an expert on the Somali question and I think
somebody else will discuss that tomorrow, I think Prof. Okoth-Ogendo in the context of the
amendments centralizing the use of emergency powers and we will give probably – I think it is
in the paper there above ground on the shifta end and the shifta problem as it was understood by
the Kenyatta Government.
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Riunga Raiji, I agree with you that you can devolve power without majimbo. In my judgment,
you can devolve powers in several other ways and may be if you want to discuss about them.
(Inaudible) are the fears of ethnic groups arising in Kenya today, I have answered that one. Yes
there are, for obvious reasons the reason being as I have explained that they have never been
addressed. They have been contained in this rather tight bottle and I will say that they have now
come out in the open and it is our historical duty to address them. I think that was Alice Yano’s
concern as well.
If there were demands for autonomy by the Arabs in Mombasa, why, and if there were
succession demands by Somalis, why? They were for historical reasons that probably we don’t
have time to go into. But I think if I combine Alice Yano’s point and Riunga Raiji’s point, the
question is, ‘can we then be reviewing the Constitution without going back to these questions,
the fears, the worries, the concerns of this community? My answer is no. I think I have ansered
Charles Maranga, so I have only two more quick ones.
Prof. Munene did address me and ………….by the way I would like to go back to that point
because although the learned professor is not here, I agree with you entirely. The reasons that
made Kipkorir give a verdict in my view about how early the process of interfering with local
Government lodged. But, to a ………………..that in 1966, with KTU becoming a force
particular within Nyanza and of course in some of the places, the real threat that local
Government with real power would be in the hands of anybody else other than KANU was not a
… issue, and I personally would agree with you that that precipitate needs some change.
My friend Keriako Ole Tobiko wants me to say something about the three 1966 Constitutions. I
am not sure that they are as useful to the dialogue we are having as they have been made out to
be, because they were really a slow and systematic process of trying to integrate the natives into
the formal Constitutional process. Now you can elect a person here but you need to be a
property owner. May be we should ask ourselves that, it’s you Tobiko. Should we require
people to be property owners to vote? Or the form that African political participation would
gather – it was gradually intended to lead to internal self-Government.
The fundamental
structures of the Constitution we are discussing are in the Constitution we are discussing.
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Com: Mr. Chairman, on that, what extent ………………….
Com. Githu Muigai: I would like to stop it at that point. You have made a contribution because
we are (inaudible). One last point Mr. Chairman.
Ole Tobiko says I say the majimbo
Constitution was complex and unworkable. I want to distinguish two ideas and a personal
opposition and a commentator, I find nothing wrong with the concept of majimbo. Have I
clarified that?
Com. Keriako Ole Tobiko: I am happy to hear that.
Com. Githu Muigai: Good. Two, however, as a lawyer looking at the way majimbo was
grafted into this Constitution, it was complex and unworkable. I hope then you will see my
(inaudible) and if the people of Kenya say that they wanted power diffused into forms that
resemble majimbo, we would have to rethink very seriously the whole question of how that is
done and I judge that this would be a good model of doing that.
I think that the power sharing arrangement between the central Government, religions, the local
Government and so on was so complex as to mean that in any given situation, you would be
paralyzed. This is the ultimate lawyers document in terms of its elegance. It is the ultimate
nightmare to a serious administrator who wants to get things done, you want to build a toilet. So,
(inaudible) is always shown so that the town clerk can follow up whether this toilet is controlled
by central Government or another (inaudible). I doubt that that is where we want to go.
I think that we could devolve power, have institutions that are controlled at the grass roots by the
people at the grass roots, without being caught up in maze that can only create jobs for lawyers.
Thank you Sir.
Com. Wanjiku Kabira: (inaudible)
Chairman: (inaudible). First thing you have in mind, please address the chair each time. One
of the reasons being you need to talk using the microphone when you make or confirm points.
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Like the two contributions now from Charles and Keriako have not gone down with this in
history.
Com. Keriako Tobiko: There wasn’t any contribution Mr. Chairman going along with the
proposal.
Chairman: That is the reason I wanted it to go down in history, that is one reason. Secondly,
about the toilet, I think we are talking about------------------ As you said, may be it was a mistake
to delete this from the Constitution; that must be worrying you don’t have any functions. In other
words, the other argument about detail as opposed to outline; I remember it had been mentioned
before. What kind of Constitution, we have a detailed one or one that is (inaudible), it is
something that we should have at the back of our minds.
Having said that, the commissioners have the copies of the Constitution which were only
distributed this morning. So, we have not really had time to read; it’s a long document of about
300 pages but a visual impression can be read from the way it is looking in this ----------------.
You can see the crossings and the markings on it. That was a Kenyan trying to keep up with the
amendments and the judiciary and there was a ration. I think that at some point they gave up.
That kind of surgery which was either brutal or whatever (inaudible).
Another thing which you know, since you have noted time is running I would add that may be
afterwards the commissioners look at it again. It has how many chapters? It has about 25
chapters and they have ---------- to these structures and sections including a section on the
concept of alteration of the Constitution and I think the other day somebody was wondering
whether we are there to alter the Constitution or to review or something. So, hopefully we shall
study it afterwards so that ---------------------
At that point therefore, may I request that we address some of the issues which Githu has spoken
about. One, do we need the pre-history of this Constitution? Even if it may not be so necessary
since we may not be thinking of proper reconciliation of what it is. May be we need it just as
part of our documentation. The Constitution that came before that in the mid 50’s – 1950’s –
what Prof. Okoth called the Constitutional (inaudible) or what I may call pre-history
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Constitution. So, that is one issue we could address very quickly and say do we need to talk
about that or not.
Secondly, the idea that this Constitution is a compromise document I think we have no doubts
that it was a complex document. It is well known that a compromise between whom and for
what reason. We know of course the British crown was there and then there was the Africans.
In this sense it’s a compromise. Do we agree that each time the Constitution has to be a
compromise, and in which sense will ours therefore be a compromise? Because we were told that
we will have to write ours and if we are not careful we will also be dismantled very quickly. So,
will there be some compromise or not?
Thirdly, are we – when we talk of the new values that were intended. The observation has been
made before that the chapter on the protection of fundamental rights or the basic rights was
number two in this Constitution, and now in the current one, it is about the last chapter – number
five, it is moving farther and farther away. What do we think of those fundamental rights and the
freedom of individuals as recorded there? I think we need to look at that from the point of view
of the bill of rights. I hope the commissioners are taking notes.
Thirdly, what was called the three dichotomies – the duality of the executive power – what was
called the ---------------------------, the mongrel relationship between a prime minister and a
president or the governor general as it was in the beginning and the Prime Minister? Can we
think about that? And then federalism versus the unitary system. I think our speaker confessed at
the very beginning that he did not address the majimbo issue. He said he ---------------------was an
authority and we have not really dealt with the sections and this Constitution chapter six talks
about regions, and goes on and on. About this issue of federalism the same thing as majimbo.
Then, the issue of bicameralism and who goes into which House and for what reason. Another
issue that arose is the issue of how the districts are defined for what were called regions at that
time and what are now provinces.
We said that they were entrenched – that the district
boundaries were entrenched in the Constitution – and that they were broadly ethnic in the
commission. Githu has said that this is the gini out of the bottle; this issue of ethnicity, then the ----- and the other thing Prof. Mazrui said review or not it will be there for the next 100 years. So,
as we think about our issues what can you learn on the issue of the boundaries for regions or
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provinces, districts or even constituencies? The relation is therefore between the relationships
between regions and the central Government.
The issue of minority rights has been mentioned in the context of --------------------and others and
it is connected with that issue of the fears and how do we address that issue as a commission?
Then, the concept of independence. That you can have an independent registering or an
independent civic service or an independent electoral commission, how do we address this issue
and what can you learn from this document here?
The issue of citizenship, you heard that women would not confer citizenship and that is ----citizens by this Constitution. Can we learn anything from this one? Then the issue of land, I
want to say that land has been reiterated here, can we address it seriously? The alterations to this
Constitution or any other Constitution and the role of the referendum which we are told was
struggle to the very first amendment in the Constitution. I would like to finally say that if a
Constitution is not given a chance to be implemented, then how can we say it is unworkable? In
other words, supposing we wrote our very principles in the document which some have been in a
year studying and then it is not even fine?
On the issue of the local Government, the concept of devolution and the concept of relation
between that idea of devolution, then local Government and majimbo.
Can some people
volunteer to make comments along that line so that we remember we are dealing with this
document and we get it out of the way this afternoon and then we go to another subject tomorrow
which is how it was dismantled? Can I have the microphone somewhere so that people can reach
it? We have less than an hour, so can you make your comments very brief? Charles, can you
start?
Com. Charles Maranga: Mr. Chairman, I want not taking seriously the questions because I felt
they are taking us away from the view because I think most of the issues is not the question of
the Constitution as such and the way it was scrapped. I think the question is was it really worth
to take up this Constitution first and foremost? My own feeling that this Constitution was done
by people who did not know the values of Africans. This Constitution was done for people who
wanted just to acquire power for their own good. It was not a Constitution to help Kenyans do
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anything. Infact, if this Constitution had not been there, the so-called tribal kingdoms in this
country would have thrived but they didn’t because of this Executive Constitution.
So, the dismantling of this Constitution to some degree, I agree 100%. It was not a good
Constitution. So, in my own opinion, I also feel that given that it did not take the values of
Africans on board, the wazungus were bringing in their own values. I have asked this question
and I will continue asking it, Britain does not even to date have a written Constitution. It was
pointless for them to give us a written Constitution because Kenya was not one nation. We had
so many tribes in this country including the Somalis and some of the races which should have
been given their own independent places to survive.
So, as it is now, we have been brought to an area where we are going to have a lot of boxing to
do to be able to go back to that bottle which Githu Muigai was referring. We cannot go back to
the same bottle. What I feel now is that the experiences we need to learn from this Constitution
is that if we are going to devolve power, may be not on ethnic lines, not on regional lines; may
be on institutional lines. That way we might go far. Thank you.
Interjection: You cannot clarify which institutions you have in mind?
Com. Charles Maranga: Well, you see now they have failed because like now I have said we
might not even have, there is the question of civil service which is a major institution and we
need to see how to deal with that. Like now, what’s the role of the so-called courts which were
traditional courts? Those used to solve more of the problems which are coming to the courts like
High courts and court of Appeal. Land issues; there is a major issue on land because the Masaai
had a treaty with the British. Why do the Masaai have big land in this country? The reason was
simple; they had been let free to roam around!
Interjection: Conquer.
Com. Charles Maranga: No, no, no. I want to raise that issue here. The issue that Masaai go
here and there saying that this is our land, the simple reason was that the white man had let the
Maasai to move up and down. If all the tribes including the Embu, the Kikuyu were allowed to
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do so, they would also have occupied up to Turkana. So, the issue of land as it is now will have
to be addressed. So, there is no question that this is Maasai land or what. The Maasai had a
treaty and we want to know it and they were having a treaty which was illegal because they did it
between themselves. Actually the Maasais should vacate Kenya because they were not under
that consideration (laughter).
Chairman: Can we have Keriako.
Com. Keriako Tobiko: Mr. Chairman, ---------------------------------- I take great exception to
what my friend is saying. I think if you want to bring the -----------------and the Maasai war
between the Kisiis and the Maasai, this is not the appropriate time. The second thing is the if at
all he read history, he should have known that before the colonialism even came here, the Maasai
occupied the greater territory than what has been called being allowed to roam about.
Interjection: They were roaming.
Com. Keriako Tobiko: They had domain over it and they acquired it by conquest.
Chairman: Prof. Okoth-Ogendo.
Com. Okoth-Ogendo: Mr. Chairman, one little piece information; the Maasai delegation plan
refused to sign the independence ----------------. They even said they should be any independent,
they wanted the colonialists to stay. I am just giving that point, sorry for -----------------------
Chairman: Let me make another technical point that combines what Dr. Maranga is saying and
something -------------- said earlier. I want to say that the British American Constitution what
business they have giving anybody a written Constitution. The often quoted statement that the
British have no written Constitution is what I call a written lie. If you think a Constitution is a
single document like this one which you can weigh and of course it’s written and --------- but if
you think of a serious and fundamental document that makes the Constitution of a country, the
British Constitution goes back to the declaration of rights, the magna culture and a lot other
documents. So, they do have a written Constitution in several documents.
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The Bishop asked, if it was an imposed Constitution, what was so wrong in amending it? Let me
give you a story of two countries that took either side of benedictory. When Trinidad and
Bangkok became independent, Erick Williams gave a speech which basically said, “This is an
imposed Constitution. It was not made by Trinidadians, it was handed to us by the queen, we will
not operate on its basis”. And Trinidad appointed a Constitution review commission immediately
and that Constitution review commission revoked the independence Constitution and they gave
themselves a new Constitution.
Zimbabwe, accepted a Constitution in 1980 but at the clause that said, ‘for 10 years, there we
certain clauses that could only be amended by a 100% majority in the National Assembly’. That
assembly had a hundred people, 20 of them were whites and were guaranteed (End of Tape 2)
TAPE 3
Com. Maranga: Mr. Chairman I was not taking it seriously with questions because I find you
are taking us away from the real issue. Because I think from most of the questionsit is not the
question of the Constitution as such and the way it was scrapped. I think the question is, was it
really worthy to take up this Constitution? First and foremost, me my own feeling is that this
Constitution was done by people who did not know the values of Africa. This Constitution was
done for people who wanted just to acquire power for their own good. It was not a Constitution
to guide Kenyans, to do anything, in fact if this Constitution had not been there, the so called
tribal kingdoms in this country would have cried and it didn’t because of this Executive
Constitution. So the dismantling of this Constitution to some beginning are 300% it was not
the good Constitution, it wasn’t. So, I also feel my own opinion that given that it did not take
the values of Africans, the Wazungus were bringing in their own values. I have asked this
question and I will continue asking it. Given Britain does not even to date have a Constitution
it was pointless for them to give us a written Constitution. Kenya was not one nation. We are
so many tribes in this country including the Somali and so
on the races. They should have
been given their own independent places to survive. So as it is now, we have been brought to
an area where we are going to have a lot of boxing to do. We will be able to go back to that
bottle which Githu Muigai was referring. We cannot go back to the same process. What it is
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now, the experiences we need to learn from this Constitution is that if they are going to
devolve power, may be not on ethnic lines, may be not on regional lines, maybe on institutional
lines. That way we might go far. Thank you.
Com. Swazuri: You cannot clarify which institutions you have in mind?
Com. Maranga: Well, you see now they are three because like now I am saying we might not
even have the question of civil service that is a major institution. We need to see how to deal
with that. Like now, what is the role of the so called courts which were traditional courts?
These used to solve more of the problems which are coming to the courts, like High Court and
Court of Appeal. Land issues; there is a major issue on land, the Masaais’ had a treaty with the
British. Why do the Masaais have big land in this country? The reason was simple, they had
been left free to roam around.
Interjection: ----inaudible)
Com. Maranga: No, no,(laughter). I want to raise that issue here. The issue that Masaai go
near the (inaudible)
this is our land. The simple reason was the white man had let the Masaai
to move up and down. If all the tribes including the Embu, the Kikuyu were allowed to do so,
they would have also occupied up to Turkana. So the issue of land as it is now, we want it to be
addressed. So there is no question about this is Masaai Land what. The Masaai had a treaty, we
want to know that treaty and they were having a treaty which was illegal because they did it
between themselves. Actually the Masaai’s should vacate Kenya they were not have under that
consideration.
Com. Swazuri: Mr. Chairman I need to get exactly what my colleague -----(inaudible). I take
any reception
to what my paddy is saying. I think if you want to bring the Gucha as the
Masaai war between the Kisiis’ and the Masaai, this is not the appropriate time. The second
thing I think if at all the very history he should have known that before the colonialist came
here, the Masaai had a greater territory than what now we call being allowed to roam about.
Com. Lethome: They were roaming, sometime in memorial.
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Com. Swazuri: They had domain over it and they of occupied by colonialists.
Discussions on the floor.
Prof. Okoth: Mr. Chairman, I wanted to pass information, the Masaais’ delegation to land
pasture they refused to sign the independence rule. They even said they should not be Kenya
independent, they wanted the colonialist to stay. I just leave that way, that is historical carreer.
Discussion on the floor
Prof. Okoth: But let me make another technical point that combines most of Dr. Maranga is
saying and something that (inaudible)
Maranga said the British have no written Constitution,
what this has been there if anybody has
written the Constitution. They often quoted
statements that the British have no written Constitution is what I call a written lie. If you take a
Constitution as a single document like this one which you can waive and of course it is written
and ----but if you think with series of fundamental documents that make the Constitution of a
country. The British Constitution goes back to the declaration of rights, the multi culture and
lots of orthodox or they do have a written Constitution in several documents.
Now the Bishop asked if this was the good Constitution, what was so wrong in amending it?
Let me give you a story of two countries that took other side of the little bit. When Trinided
and Bangkok became independent Eric Willliams Trinidad Bangkok gave a speech. He
basically said, this is an imposed Constitution, it was not made by the Trinidadiars it was handed
to us operate by the queen we will not open rate on its basis Trinidad had appointed a
Constitution Review Commission immediately and that Constitution Review Commission
revoked the independence Constitution and they gave themselves a new Constitution.
Zimbabwe accepted the Constitution in 1980 but the clause stayed for ten years. The second
clause that said it could only be amended by 100% majority in the National Assembly. That
Assembly had a hundred people, twenty of them were whites and were guaranteed seats. You
needed a 100% of their votes to amend certain parts of the Constitution. (inaudible) as one of
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those members. Now for ten years, they could not amend the Constitution and part of all the
problems Zimbabwe had with that mess, is the mess of land. It is exactly
because they wasted
10 years in the Constitution that ------------ did not amend. One of the reason the British gave
them in for that, is under
that the British learnt from Kenyans that if you don’t make
amendments as rigid as you possibly can, see what the Kenyans have done. They have to be
dismantled that Constitution very quickly.
question
Last year when I was in Zimbabwe on the land
I told the PS and even the President that may be Mugabe should have handed over
power to the army commander and then the next day the (inaudible) would hand over back to
Mugabe under new Constitution (laughter). And that new Constitution will not have that
clause they would have saved time. .
An imposed Constitution is
a problem and part of the problems
is that you start up with
somebody who says, “you don’t know how to handle power, we are going to give you a
document that is going to contain the use of power until you become sufficiently schooled to
be able to do it
and these is no other reason. It is a very good reason for getting -------------
Constitution. Now what the imposed Constitution totally uses
is nothing else.
The
independence. Constitution constituted Kenya as a state and I think Githu made this point that
you had the Luos, the Kambas and the whole lot, there was never such a state as Kenya. The
only thing that constituted it was the independence Constitution. The British do not have to be
counted by a document, they are constitute by history, history did not constitute this country.
Therefore the only lasting value of the independence Constitution if nothing at all, was its
constitutive provision.
PLO Lumumba: Okay, now Bishop.
Com. Bishop Njoroge: I just want to know. You have broken anumber of issues to be
discussed and I just want the aim of all these. In fact tomorrow we are going to discuss about
the dismantling of the independence Constitution.
Which means there are particular parts of
that Constitution that were dismantled and that we have to deal with to see whether in essence
they would have provided a viable alternative to what we have. So, what I was thinking is Mr.
Chairman is that we should have looked at those areas where the Constitution was
dismantled
and be able to come up with a clear idea was it really workable? What is it that we want to get
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from them? Because what I think is whatever we do here we have to help the people of Kenya
understand these things. So, when you bring many many things together, even things that are in
the current Constitution like the independence one I don’t understand what is the aim of this
issue.
Com. Mosonik: I thought the aim was to understand an Independence Constitution and we
have been given that speech by Githu and comments were made regarding the content of that
Constitution. I was highlighting some of the contents of that Constitution and then outline. I am
saying can we address these issues to see whether we understand the way they will appear in
the Constitution because then tomorrow we shall understand some more so that we have a
grasp.. I thought I was highlighting what came
in recommendation.
I didn’t invent those
things, they are not mine at all,
Com. Bishop Njoroge: No no, I am not saying that.
Com. Mosonik: Okay, I --------- first and then -------
Com. Kangu: Now Mr. Chairman I would like first to pick up the point Prof. Okoth Ogendo
has made that he misses words to describe the Constitution in terms of the document and
because even the American one is normally read together with the articles of consideration and
sometimes with the declaration of independence. I believe the South Africans today is readily
together with the Constitutional principles that were in 1994 document and many other countries
don’t just look at the document alone and say that is what constitutes the Constitution. Now still
I find a bit of contradiction in the argument that was raised by Dr. Maranga, because on the one
hand he is saying that we had several tribes in Kenya as nations and at the same time is telling us
why don’t we get African values. I don’t want to say that we can talk about different nations in
the form of our tribes. At the same time he is saying that
there is something we can call
African values. Then we will be talking about, what are the values of the Kikuyus, what are
the values of the Merus? So if they are saying each tribe was a nation..
Now when it comes to the question of values, my position is that the one and most important
value and which is universal whether you are African or white or whatever, is the value of
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survival. It is the value of preserving yourselves. You must eat to be able to survive. Of course
people (inaudible) on what you will eat to survive. They are those who will be very
comfortable with monkeys like in Congo and Zambia. Some will be very happy with rats, others
would very comfortable with caterpillar and we would be happywith Ugali here. But what is
important is that you must eat
to survive and the values that ought to have gone into the
Constitution of this country or any other country as I have said before, is the value of ensuring
that we are really managing our resources properly are distributed equitably to ensure that we
survive.
And that is why the position is that when governance was introduced as a necessity,
then it became a problem to man to manage it because there were those who when they were
entrusted with the powers of governance they decide to use them for their own personal
aggrandizement and it became necessary to introduce other mechanisms of controlling
governance to ensure that it is speared towards the objectives it was introduced for, and that is
how the content of Constitutionalism came about to develop mechanisms of sharing out power or
trying to avoid power being concentrated on the hands of one person.
So I believe that, that is the value that we should be seeking to put in the Constitutionalism.
How do we ensure
whoever we will
put in the office and ensure--------- to the requirements
of proper governance, publican governance and so on. And it is in that light that I personally
perceive some of the clauses the way that Bishop Njoroge explained that were put in the
Constitution and which were later dismantled. The recognition that if you put power in the
hands of one person, then you run the risk of that person abusing that power and therefore you
not will have Constitutionalism. If what we necessitated that Constitution to have certain
clauses, to have certain divisions of
power to ensure that Constitutionalism is maintained and
that is the essence of a dual executive. You do not want the executive power to be exercised
by one person.
In fact before you come that
provision that, that is the basis of state by being divided into
three organs: the Executive, the Legislature and the Judiciary. We do not want that power
exercised by one institution or one person. So you divide it into three. Then there are those who
are saying that even after you divide into three, each one these could also be divided further and
that is why the dual Executive is divided into two. You have the Head of State separate from a
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Head of Government. That is why the Legislature, the by-cameral system will also be divided
into two. You have an Upper House and a Lower House so that each checks(inaudible) Then
you can come to the Judiciary, it is also structured from a higher level, middle ranks and lower
level. You want this balancing if a lower court hadn’t made up proper decision, there is a
higher court that can reverse that. It is a kind of check and balance on each other and I am saying
, that is the most fundamental value that should go into our Constitution.
If that was the
intention at the independence, then those clauses that were dismantled can possibly be seen to
have been dismantled by those who wanted to have absolute power. And a few very indeed
that is why we are seated here, then that power has been abused. Thank you.
Com. Mosonik: On that view do you comment on the --------(inaudible) in a sense the
Constitution introduce
a serious competition because a Parliamentary system by the
Commission is unitary and centralized. While a federal system is on page 2, is fragmented and
there is a word dismissed.
Com. Kangu: My starting point on that position on that should be that the fact we need to get
the fundamental distinction between the British Constitutional system and what we call the
American type of Constitutional system. The British Constitution all system in my position is
premised upon the concept of Parliamentary sovereignty. That Parliament is so sovereign, it is
the supreme institution in the land, it has the unlimited power to make laws, amend them, rebuild
them and even limit rights if it chooses to And in that event the courts are not in a position to
question what Parliament has done and I argue, and I have argued elsewhere that, that is the basis
on which the British approach to interpretation of laws which says that you look for the intention
of the Legislature and when you find it, you enforce it.
Because it was based on the fact that,
the Legislature is supreme and you cannot question what it has done.
On the other hand, the American Constitutional systems are based on the concept of
Constitutional supremacy. That the supremest institution in the land if the Constitution as an
expression of the will of the people or that gives the people expressing there will through the
Constitution. That therefore if Parliament has power to make laws, that power is itself limited
and it is subject to the Constitution. So, you can say that looking at under that American system,
you come to the conclusion that therefore the court plays a very major role both in the legal and
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political arrangements define. Because they are the ones that are supposed to weigh the laws that
Parliament makes against the Constitution to ensure that they are consistent with the Constitution
and if they are in consistent, the courts declare them not valid.
Now, under that system therefore, you can see the courts play a major role and there4 is that
fundamental distinction that looked at that way, the American system is emphasizing
Constitutionalism, that we want an arrangement that cannot allow any institution to pretend to
have unlimited power or authority to do anything. On the other hand, the British system seems
not to emphasize Constitutionalism. It seems to be in fact a contradiction that it wants to talk on
Constitutionalism and yet it talks of a Parliament that it is supposed to have unlimited power.
Now, that is a contradiction in itself.
So my position is that if you take a system that is emphasizing Constitution supremacy, then you
are emphasizing Constitutionalism and therefore an attempt to find any more methods of
distributing power to limit abuse and to develop more Constitutionalism is something good. But
if you take the British system, then it encourages that
concept
of lack of proper
Constitutionalism and I have argued that indeed the problem in our country was the failure to
identify this distinction so that we ended up with a Constitutional which seemed to incorporate
the American concept of limited power. but we have continued to operate it from our British
understanding of the British Constitutional system which doesn’t seem to appreciate the concept
of limited power and in the end result, we have a condition that we are tempted insert of
choosing one direction to go, we are tempted to hide with that. Go from this side, go from the
other side, and my advice is that we end up not a hybrid value, but in fact a confusion.
It is my position that the current Kenyans Constitution, after the dismantling of the independent
Constitution, is in fact a confusion and that is why we are here. That we must jetisson on this
confusion and restore cernity in this country in terms of Constitutional understanding. And this
will
therefore, we want unlimited power and
if we want unlimited power if we want
Constitutionalism my argument is that the British cannot be the people we should borrow from.
Their traditional Constitutional system is not a system that encourages Constitutionalism. I agree
of course that as from 1972, the British themselves have also started accepting the concept of a
law higher court as a source of law and when they joined the European community, they are
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those allow subject to what the European community law is saying. The passage of the 1972
European community Act emphasized that in the event of a conflict between the community law
and a British law, the community law will prevail. So my position is that if we had to choose
the right way, it is not to follow the British Parliamentary system. It is a bad one.(laughter)
Com. Baraza: Thank you Mr. Chairman. From Githu’s presentation and from my looking at the
independent Constitution, I don’t see a preamble. Do you agree it is not there.
I think we can
trace some of our---
Interjection: Com. Mosonik: Can you tell us the significance of the Preamble if there was one?
Com. Baraza: If there was in connection with the ---
Interjection: Com. Kangu: We need directive principles
Response of the background: No no, the Preamble.
Com. Githu: We the people of Kenya hereby ---
Com. Baraza: Ever it will be
Com. Githu: There must be a reason you are talking about the Preamble
Com. Baraza:
The reason I am talking about that is that it has been argued that the
independence Constitution was too complex for proper implementation and of course for other
(inaudible) reason, it was dismantled. My concern here is that through this process of either I
saw not to (inaudible) in any of the amendment was tricky you know, motivated by personal
interest or whatever they were but what comes out
very clearly is lack of (inaudible) to
Constitutionalism in either the leaders or Kenyans as people of this nation. So am bringing in
this issue of lack of Preamble because I believe a preamble is quite an essential part of the
Constitution in the sense that it states down the values, the values that the Constitution intends
the people to abide to.
It states whys wide and the
hows a Constitution has come about.
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Now ours doesn’t seem to have that and I think that was a major defect in the Constitution. In
the sense that it just didn’t lay down values and the values I’m talking about one or the values
which would inform invoke our moral being as Kenyan people. Probably had we had that then
this I still go back to it and call it the reckless infidelity to our Constitution. Probably we would
not have assumed that much interest. I don’t what ----
Com. Mosonik: A point of information.
Prof. Okoth: Com. Baraza and I are going to have a very big argument as to what appears we
should do.
Then let me give my view over a Preamble. That a preamble identifies the
Constitution power, the body that is giving the Constitution. It is the constitutive section of that
document called the Constitution. We the people of Kenya give unto ourselves. In the case of
an independent Constitution, the constitutive power was a creed of England in Council, that is
why there no such thing there is called a preamble. In this particular exercise, we are going to
have agreement as to whether we should have a preamble and how we are going to distinguish
the Preamble from directive principles of the State.
Com. Kabira: ( inaudible)
Com. Lethome: Dr. Mosonik, will you allow me to ask a question to Mr. Githu before I
proceed to my point?
Com. Mosonik: Okay, make it very brief.
Com. Lethome: The second sentence in your statement Mr. Githu, you are talking of parties
who negotiated the Constitution. If you could just elaborate, who are these parties you have in
mind before I make my comments on that?
Com. Githu: I had in mind here on the one hand a colonial Government, which was the party
that would seek power and authority (inaudible)
I had on the other hand various groups of
representatives from the colony. Some of them were to be found within fairly well organized
political parties like KANU, like KADU unlike a whole sense of other smaller parties and white
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colonial interest. These are the people who have called the parties who negotiated with them.
Thank you.
Com. Lethome: That was also my understanding but may be I would like to reason with you
about the parties negotiating
the Constitution. I think there was no negotiation at all. I think
even in your paper you said, there was and export model that would be exported to any colony
that was to be decolonized. So there was no negotiation on the Constitution itself. The
negotiation as far as Kenya was concerned, my mind is still fresh what we heard
called
from the so
Lancaster Veteran who did not even have a say, they did not even have a say on the
timing of the negotiation. Remember Mr. Matano complained about the severe winter, meaning
that they did not even have a say to decide when they should go there. So even the negotiation,
the so called negotiations were imposed on the Lancaster team. They could not even decide on
when to go there and negotiate.
The only common interest of our team from here was Uhuru . So, they were just negotiating on
Uhuru, not on the document. This was an export model, tailor made, ready made and it was just
imposed on them. And in your paper in fact later in the paper you said that very clearly So I
would like us may be to agree that we remove here that the parties did not negotiate the
Constitution. What they negotiated was Uhuru what the Kenyans wanted. That is why Kenyatta
rightly or wronged said “it doesn’t matter what document they will give us. Let us agree
because what is important to us is Uhuru”.
We get independence, what we do with this
document is our business. So, Mr. Githu I feel that there were no negotiation on the document.
It was an imposed paper tailor made.
Com. Mosonik:
About the Veterans . I thought they said they said in fact they were very
happy to be in London because they were being taken away from colonial settlers and corrupt
ones (inaudible)
Com. Lethome: Yeah, that reminds me Mr. Mosonik also. Remember they also told us they
were taken from wherever they were taken from their rural homes, straight to the airport. They
even had no time to meet and discuss if I can remember very well. They were just taken Mrs
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Agagwa, the others were just taken from wherever they were taken to the airport, they had not
time even to agree. Yeah, they were taken to that severe winter there. (laughter)
Com. Mosonik: (inaudible)
Com. Githu: Yes I think we are saying the same thing because I personally made the same
comment during my presentation. I think negotiation has to be understood within the specific
context in which this was going on. To make the argument that the Africans had a take it or
leave it condition is incorrect also. What I think was correct to say is that the issues on the table
were very limited. Right? And there were negotiations, there were issues, there was give and
take on very well defined issues whose agenda was set by the colonial power. Alright? On the
issue of land for example, on the issue of boundaries of the regions, on the issue of part of the
nitty grities of the power sharing arrangements, they negotiated , we don’t want that, we want
this, we prefer this and so on. And that the draftsman was to give or take.
If you have however today on the substance on the main issue because let’s go back one step
and agree that there were only two issues that differentiated this Constitution from probably the
Ghanaian Constitution or the Ugandan Constitution, well Uganda had a special problem of
kingdoms. It was majimbo and it was (inaudible) Everything else, was the same So when you
say they never negotiated those other issues true and to this extent I agree with the argument that
if we take two steps backwards to where Keriako Tobiko wanted us to go, probably we would
get the history of the larger question of land, of the larger question of majimbo. But in specific
terms I agree with you that there were no negotiations on the larger problem on specific issues,
of course there was a give and take.principle
Com. Mosonik: (inaudible)
Com. Munene : Thank you Mr. Chairman. Just a comment. Maybe the structure of the
Constitution. Suppose if we look at it this way, the time in which this thing took place, look at
what we have. You will notice that specifically from January 1960 to September, October 1963
and then with we must question why there was a January in 1960. It is because of some
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things had happened in October 1959 but I put January as a starting point because that is the time
we should make it very clear (inaudible). So everybody started to look to figure out what to do
next. So (inaudible) we look at now the conclusion making of this mechanism as of January
1963, January March and after declared ----- that include parties. But there was no majimbo
issue in January 1960. So, when is this white man --------- from ---------- may be they were
(inaudible) before being in the discussions.
Com. Mosonik: Prof. Kabira:
Com. Kabira: Thank you very much the Chair, I think I want to build on or to add on what
Munene has said and may be raise two questions. One, if we were to remove for instance the
complexities of the region, arrangements between the regions and the central Government, from
all these complexities where there
---- and workers. What will be the value for having those
regions? (inaudible) and workers? Probably we may also want to address the fears that come
with the concept of the majimbo again. Why are people afraid of having regional Government?
How can we address this fear? And what checks and balances would one put in place assuming
that they have a simple process? And then I wanted to know what will be the difference between
devolving powers to the regions as opposed to the devolving power to the local authorities?
What is the major difference? Then I wanted to raise the issue of the Maasai and the land; if they
didn’t sign the independence Constitution, and other issues like the Somali and the
question of
land again. How are we going to benefit from the Njonjo Commission? May be Tobiko can tell
us. Are these issues being addressed by the other Commission, the land issue and probably how
can we get access to the information for what people are saying:
Com. Mosonik: Okay, Riunga please
Com. Riunga Raiji: Thank you Chair, I think I have been raising my hands at the (inaudible)
me in. Yeah, first of all Chair, I think there is an issue , we need to address because it has to be
accepted that immediately after the Constitution was promulgated. It was the recklessly
amended depending on (inaudible)
---
But I think there is one issue that we should address
ourselves to. Who are these people who are amending and whose behalf and on what authority?
Because to me it had appeared that this Constitution was actually hijacked by a political class
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called politicians and it was essentially intended to enhance the fight for political power among
themselves and I must say that it is very clear that the people of Kenya, the electors had no say
and did not even know whether they would have supported this matter until they were put to
them.
So one of the issues that, one of the lessons that we can learn from this is that this Constitution
that we are about to make must be owned by the people and there must be mechanisms of
protecting it from the a class an elite, a sort of hijacker who takes a Constitution and then he is
able to dismantle it without the consent of the governed. One of the issues that I would like to
suggest, I think we have started on the right track. In the first place this is the process we are
now embarking on, it is an open process. We are embarking on civic education. People are
becoming stakeholders. It is my view that if people continue
remain stakeholders to the
Constitution even after it has been passed, then it would be possible for them to resist the kind of
attempts that were made
on the Constitution.
Because unless we have a mechanism of
protecting the Constitution, even if we make the best Constitution, there will no guarantee that it
would not be adjusted by a similar group of people to serve short time partisan interests.
The other thing I would like I to caution ourselves; I think the same class of people acting
currently more less under the same motivation like the 1963 up to 1966 (inaudible)
also have
come up with various models of the Constitution which is good because we are debating this
system. But again we must be careful. At the time when the rest of the country is turning itself
into one global
village here in Kenya, people are thinking..
Let me not to use the word
thinking . Politicians or a section of them are turning themselves, I mean they are talking about
sub-dividing the country into small kingdoms so that they become some kinds of Lords over
those small kingdoms. I think it is an issue that we need to debate and also see before we are
able to implement these things.
Last Chair, I think there is a lot of attack on the Independence Constitution; that it was a
compromise, complex,
I think it is good that it was a compromise. One of the reasons, one of
our mandates here, is to try and arrive at a consensus. You cannot arrive at the consensus unless
we are able to engage each other and then come to some compromise. I suggest that the
Constitution that is going to emerge out of this process will itself be a comprise document.
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Compromises sometimes may not be the most logical things but they are the most (inaudible)
the alternative and we must be prepared to live with them.
Now, this question of tribes and ethnicity is again being raised as it was raised in 1963 Lancaster
conference and all that. The problem really is that as at that time I think it has been stated by
Professor (inaudible) and almost everybody else, there was no such thing as Kenyans. It was the
collection of tribes. They were openly
hostile to each other which has been retained by the
British, by force to remain within the entity that the British described as, Kenya colony and
protectorate of Mombasa. Accordingly, it was through that young form. There is some form of
an entity to be called Kenya.. We have now had closed to 40 years of – bonding with to each
other. I hear that some of the politicians try to take us back because we didn’t loose 40 years,
this Constitution, they have not been perfect but it has kept us together.
Let us look at the positive things that are contained in that Constitution and when we incorporate
in the other one, I think let us try to (inaudible) the things that we have made rather than taking
us back to 1963 and then starting afresh. Somebody feared that word
(inaudible) . For
example the problem of the white tribe its not as prominences as it was.. I dare say that other
than the elite called the politicians among the common people, it is now even the feeling of an
ethnicity amongst the people themselves who have been together for the last 30 years. It is a
little easier than probably it was in 1963 and I think we should be conscious that whether we
would engage in receiving views from the people or the kinds systems that we are going to have.
That we shouldnt give and do it to one class of persons, the political elites maybe because they
are vocal, they have influence or perhaps (inaudible). We must also deeper to the common
persons and find out exactly what their feelings are on this issue and then give equal weights to
the views of these people. Thank you.
Com. Mosonik: Thank you very much Raiji. At this point you know --- have a team of four
who have gone to get KBC by five.
Secondly, we have two hour continuation of this plenary. I
hope the members are aware. After this, so, what I would like to propose, can we halt? I can
still recognize Kavesta and Domiziano there and Swazuri and Bishop in that order when I hand
over to Domiziano, I’m requesting him to take contributions in that order so that we can have a
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difference and the tea is being served ----(inaudible). but before we close, may I give Githu a
chance to may be respond very briefly.
Com. Githu: Mr. Chairman thank you very much. Charles Maranga I don’t think that there is
anything I can say that would persuade you from that position which you have taken. Like
Mutakha Kangu, I’m getting a bit lost in the argument of what are African values. I tried to
identify a few myself but obviously they didn’t impress you.. So I think that Tobiko wanted to
talk about context ---(laughter). By the way I can confirm that in the matter of international law
conquest is one of the well respected ways in which territory is acquired. (laughter). Now in
fact Prof. Okoth Ogendo made a good point about the ------- go should--- now, there is one point
I want to make about
the ---- Mutakha Kangu commented about the confusion in our
Constitutional thinking between the Parliamentary sovereignty and Constitutional supremacy. I
want to endorse that. I think if you try that to the special place of Judiciary, then you have a very
serious volatile mix. In this country for several years until about a year or so ago the Judiciary
thought that Parliamentary sovereignty means that Parliament can make any law, at any time for
any reason or for no reason whatsoever, and can amend any law at any time, in whatever manner
and so on. So much shows that Parliament can declare a man a woman a woman a man if that
is the law.
The Judiciary has very recently discovered something called Constitutional Supremacy. Now
because of this vacillation between extremes, it is Constitutional supremacy as understood by
the Judiciary now
in my humble view as dangerous as their previous understanding for
Parliamentary supremacy because they seem to understand like that because the Constitution
says that the court is the ultimate abittoor a pitter on what’s Constitutional therefore the court
can make a decision on any issuing under the sun yes it is not it is not (inaudible) in my
humble of view it is not proper jurispudence of the Constitution and we can go there another
day wanted to a firm my conviction that Mutkha is correct.
There is something that the prof said that Mutakha brought out which is very important for us
to remember; the Constitution even in Kenya is not the document alone that is not true. A
Constitution is in some American scholar thought that there are two Constitutions at any one
time, two Constitutions. A Constitution with the big “C” which is the (inaudible) document
and a Constitution with a small “C” which are the factors of political conduct that revolve around
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the little Constitution. In Kenya for example the Constitution says that President is the
Commander in Chief of the armed forces of the republic of Kenya. It does not say when he can
declare war with whose permission he can declare war when he has to seek authority and so on
and so forth. Now if you ask a Constitutional scholar does is it mean that in Kenya that there is
no Constitutional law governing the conduct of war I think the only a very ignorant one would
, and what is it? . It is what the Constitution broadly says seen against the conduct. How
did
Kenyatta conduct war if at all? How did Moi conduct war that conduct in itself is part of the
Constitution of Kenya.
So that even in Kenya there are two other unwritten Constitutions which are part of the
Constitution. One is Constitutional theory itself which is one thing in my Judgment that doesn’t
seem
to be
appreciated enough particularly by those who
purport
to interpret
the
Constitution. Constitutional theory is critical to an understanding of what the text states which
takes me to another point we discussed earlier. Do you want a minimaist Constitution or a
maximalist. I am in the happy group that believes that the Constitution
must say the
minimum not the maximum. When you purport to say the maximum you can see what
happens; you draw maps you put them at the next (inaudible) after next (inaudible) you take
geographical calculations so on and so forth and you still get it wrong. Say the least and allow
the Constitution to grow in my view
So now Nanzy Baraza talks about the preamble and I think the argument Professor Okoth
Ogendo
(inaudible). Sorry I am reminded that I identified two un written parts of the
Constitution and
only talked about one. One is Constitutional theory the other one is
Constitutional practice which is not inconsistent with the Constitution.
It is Constitutional
practice that gives life to the Constitution. Let me give you an example if you asked who
interprets the Constitution to the average lawyer? The answer is likely to be the Judiciary.
Wrong. They are very many important and conclusive organs that interpret a Constitution let me
give you an example the Speaker of the National assembly. An
issue of Constitutional
significance if raised before the Speaker he makes a determination and a ruling which in my
view in in many situations may or may not be (inaudible) by court of law depending on what is
the issue he has rulled. On
In only very recently our present Speaker made
a very
fundamental ruling on whether by NDP and KANU forming a Government together NDP has
crossed over to KANU and he made the ruling. It is now part of the Constitutional law of
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Kenya. So somebody who says that there is a vacuum there , is wrong no until that ruling by
the Speaker is challenged in any other forum or way it is the Constitutional law of Kenya.
Meaning it is what he himself will obey and we could go on and on . So there are two parts of
the Constitution that are un written.
Nancy talks about Preamble and I think Prof. Okoth Ogendo’s explanation was adequate. We
did not give ourselves the Constitution. This time we may give ourselves the Constitution.
Directive principles I am not agreeing by them but I am beginning to be persuaded by those who
believe in them.
Mutakha Kangu being Chief among them.
I always find these so called
Directive Principles kind of pretentious and kind of lofty what my good teacher and friend here
Ringera we would have called moral (inaudible) and so on.
Now by the way Professor Munene’s point if I think this maybe un popular think to say. but I
will say it non the less. In my Judgment the reason why there was no a Majimbo agenda in 1960
is because to a very large part Majimbo was an a genda for the white community in this
country. They set up and funded and gave ideological impetus to political parties to prosecute
Majimbo. Now I can request in my historical sources many people may disagree with them but
that is my understanding of history issues and I may be wrong.
when you doubt the sources of another of your
interlocuter
Unfortunately in a cadamia
you must
cite
your own.
(laughter) And when I was a teacher students to tell my (inaudible) in law there are only
two authourity in my book and the Judge Lawyers express their opinions and they can express
them -------
Now Professor Kabira talked about this issue (inaudible) how we address the fears of people
that created the necessity for this systems. I cannot do better than what has been said which is
and I think Riunga Raiji made the last point on that.
One other point Mr. Chairman and I will be done and this is to Riunga Raiji. There is a point
that Yash Ghai made or rather made in his very early writings in the 1970’s which is very
important one in
my view. His argument was that one of the problems the Constitution ran
into almost immediately was one, it was not respected by those we were working with. Two it
was viewed as a political weapon by those who controlled their apparatus of state as against to
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those who were not within the apparatus of state. And that is why amendments became part of
the political part of it.
When tomorrow we discuss the amendments you will see a very
interesting they make very interesting footprints in the sands of our history you can always see
the beginning of the fight between the radical in KANU, KANU “A” and KANU “B”. The first
amendments chapter 64 were to deal with that particular problem the problem of internal party
discipline within KANU. Then you can begin to see the beginning of the conflict with KPU so
on and so forth and that
goes all the way as far as you can follow it. So I agree with Riunga
Raiji that the political elite in whose hands the public had
entrusted the Constitution, has
viewed as part of the weapon the armory, available in the political fight that is power politics.
Those are the people who (inaudible)
Finally I agree with Raiji that perhaps compromise is not a bad thing. Probably when they say
the independence Constitution was a compromise Constitution we give it a negative connotation
when indeed compromise is what this Commission is about to listen to all the people and try to
find a middle ground of what they want. They talked earlier and I find that the most
fascinating example of what we have heard so far. When we went to North Eastern and they
said the river, we want the river. I do not know how you can deal with that without a comprise.
There are people with the river and there are people who have the river and there is only one
river so we must find a compromise .
Finally I agree with Riunga that we must be very careful about the whole manner in which
Majimbo has been prosecuted as a form of devolution power because it has been explained by
politicians with a connotation that Majimbo is about ethnic exclusivity ---- it isn’t it ought not
to be Centralism is not about ethnic exclusivity . In fact centralism is about taking power to the
grass roots it doesn’t matter who is in the grassroots. Infact in the independence Constitution if
you look at the way the regions were defined it said you could go in the region if you have a
genuine collection with the region. Meaning if you were born there or if you live there, or if
you work there, or if you carry out business there. So we must be careful that we do not give the
impression in our
(inaudible) that a federal structure or Majimbo structure is about ethnic
autonomy ethnic exclusiveness and so on and so forth.
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Final warning that I must say is that I personally will be concerned if while everywhere in the
world people are fighting over cyber space and how much of cyber space they can control in
Kenya we are find to work our way backward about how many cows you can keep in a strip of
land and who of the 42 Kenyans has a historical claim to that piece of land I think we must keep
a balance of about (inaudible) Thank you. (clapping)
(Discussion on the floor)
(interjection) Com Raiji: I think I will be brief, ----- where is necessary you come back yeah
Com. Githu: It is upon you to exercise your power to say ------- (laughter)
Com. Raiji: So there is a continuation
under the Chairmanship of the Keriako. So then I am
saying both of the Commissioners (inaudible) is Mr. Karissa please say it very briefly---
(Discussion on the floor)
Com. Raiji: I declare that this meeting has come to an end ----
&&&&&&&&&&&&&&&&&&&&&
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