The reports that have resulted from the Building Bridges Initiative (BBI) have identified the need for greater political, economic and religious inclusivity as the key issues confronting Kenya. The roots of political, economic, and social exclusion are embedded in Kenyan history, and they must be recognized and confronted for any attempt to promote inclusion to be successful.
This means that Kenya’s politics, economy and society have been polarized by divisions based on race, ethnicity, class, and religion, to name the most historically prominent, since the start of the colonial conquest in 1895. The rulers of Kenya during the colonial era and beyond put such divisions into place by legal measures and political and social usage both before and after independence. This produced a colonial society marked by rigid racial segregation in all aspects of life, including access to political inclusion and economic resources (e.g., the so-called white highlands). Social amenities were also segregated, and employment and leisure activities limited according to race, religion, and economic status.
While legally supported racial discrimination disappeared after independence, other forms of exclusion, grounded in ethnicity, class, and religion, continued to thrive after December 1963. The legal and constitutional framework that concretized those forms of exclusion is what the BBI initiative seeks to alter and overturn through constitutional amendments to provide a new framework for governing Kenya in the interests of all its inhabitants.
Looked at in context, it is clear that this process will only be possible if leaders of the BBI movement take account of past history. For example, Kenya’s constitutional history prior to 1963 represented a patchwork of legal decrees, colonial ordinances, and imperial directives in the form of orders-in-council. There was no single constitutional document setting out rules and philosophies for governance until the publication of the self-government constitution in April 1963. It was set out in an order-in-council and published in the Official Gazette. It came into effect on 1 June 1963. Like other colonial era constitutional instruments, the self-government constitution was imposed by the imperial power. A primary reason for this was that none were marked by negotiations involving all Kenya’s people or their representatives, nor were they a product of compromise and consensus.
A conspicuous example was the introduction of elected representation to the East Africa Protectorate (after June 1920 the Colony and Protectorate of Kenya) Legislative Council (LegCo) and local government bodies. The LegCo passed an ordinance in 1919 providing electoral representation only for Europeans resident in the territory. Europeans made up most of the body, and the then governor allowed official (civil servant) members a free vote. The result was strongly opposed by Asian (primarily from British India) residents, and as a result the British government was forced to intervene and decree, in the Devonshire White Paper of 1923, that Asian residents should have five elected representatives in LegCo and Europeans 11. The African majority was left out, and when the first African member entered the council in 1944, he was a nominated member.
This lack of inclusion for the colony’s majority population and the imposition by the colonial power manifested itself after World War II in the form of the Lyttleton Constitution of 1954 and the Lennox-Boyd Constitution of 1957-58. In both cases, a Secretary of State for the Colonies imposed constitutional arrangements that were rejected by those representing the African people. Acceptance by the European settler (or white highlander) representatives on behalf of the miniscule unofficial European population was deemed most important by the colonial rulers. In these cases, as earlier, it was only a portion of the colony’s elite who participated in constitutional discussions, and once the secretary of state had made up his mind, there was no discussion nor changing of constitutional specifics. Consensus, compromise, and inclusivity were not part of this process.
The African majority was left out, and when the first African member entered the council in 1944, he was a nominated member.
The constitutional alterations introduced as a result of the first Lancaster House conference in early 1960, moreover, continued the practice of elite involvement at the expense the Kenyan masses. As before, another secretary of state imposed a formula for a new LegCo and council of ministers as the delegates at the London meeting failed to reach agreement as far as the future legislative and executive branches were concerned. A major change in 1960 was that the 14 African elected members of LegCo were now the key group, but even they were not able to obtain changes to the new constitutional arrangements Iain Macleod laid before them. They accepted his formula while not all the European elected members did.
This was a significant change as at the conference the British government recognized that Kenya’s future was as a state governed by majority rule with Africans in control of the state. However, the fact remained that this was an imposed constitution discussed among a political elite not truly representative of Kenya’s populace, and not subjected to a referendum. It took almost a year to work out the specifics of the new constitutional arrangements with representatives of the colonial state playing a key part in the proceedings. (A key reason for this is that the colonial state and the British government wished to create a system of representation whereby “moderate” candidates were returned to the new LegCo by African and European voters in what would be Kenya’s last non-universal suffrage election.)
The self-government and independence constitutions emerged through similar circumstances. The political elite, now African-led and divided in two political parties, KANU and KADU, negotiated with the British government regarding the type of successor state that would rule Kenya. Both parties had European and Asian representatives as members of their delegations. As is well known, the second (1962) and third (1963) Lancaster House conferences were deeply divided over the issue of a federal or unitary state. At Lancaster House II, KADU advocated for majimbo, or a federal system of governance with powers devolved to geographically defined regions while KANU stood firm behind the call for a unitary system based on the existing administrative divisions and very much resembling the British model of parliamentary democracy. Here again, a secretary of state had to impose a settlement, this time a framework rather than a detailed constitution. It was left to Kenya’s political elite to work out the specifics of the constitution for self-government.
The fact remained that this was an imposed constitution discussed among a political elite not truly representative of Kenya’s populace.
The divisions in constitutional philosophy together with an inept handling of the negotiations by the leadership of the colonial state, delayed the process during 1962. Following the arrival of a new governor in January 1963, the process speeded up considerably, but agreement on many critical issues was not reached. This left another secretary of state for the colonies to decide the outstanding issues in dispute in March. Not only did the Kenyan political elite fail to agree, but the whole process did not involve participation by the population in the form of public meetings to explain the issues in dispute or a referendum. The self-government constitution (1 June 1963) provided for an extensive bill of rights and sought to institute a governmental structure based on a separation of powers between executive, legislative, and judicial branches, and thus unlike the structure of the colonial state.
However, the final form of the independence constitution, introduced on 12 December 1963, was much influenced by the universal suffrage general elections of May 1963. The victory of KANU in the House of Representatives and Senate opened the way for significant changes to that constitution in the next decade that did away with federalism and established a de facto one-party state. Significantly, it began the retrenchment of the bureaucratic-executive state. This meant that over time the executive branch of government dominated the legislative and judicial through an authoritarian imperial presidency.
Before turning to constitutional developments in the independence period, it is important to briefly examine the political culture and trends that marked the colonial era. Until 1961, constitutional arrangements were characterized by the politics of race. Kenya’s rulers conceived of the colony as a territory of several distinct racial groups. This vision was underpinned by a firm adherence to racist ideas of Social Darwinism which emphasized inequality among humans and a need for exclusion in political, economic, and social facets of colonial life. Segregation rather than integration was the mantra of colonial officials, settlers, and missionaries. As noted, the politics of race began to change in the early 1960s to be succeeded by the politics of ethnicity which also had its roots in the colonial decades.
Both the politics of race and ethnicity shared some common elements in terms of political strategies and actions. A few will be mentioned here as they had an influence on constitutional developments as well as remaining influential in independent Kenya. Divide and rule has been an enduring part of Kenyan political history. Keeping the population divided lessened opposition to ruling groups as well as privileging certain racial and ethnic groups and disadvantaging others (collectively most of the population). The setting of the elite against the masses or the big men against the little people is another enduring part of Kenya political practice. It is influential whether applied to racial or ethnic politics. In addition, a political practice that emerged in colonial Kenya burst forth again after independence. This is what some of Kenya’s colonial governors viewed as an “opposition mentality.” After 1923, Kenya’s European politicians enjoyed considerable influence, but could never take control of state power. This led to the adoption of European obstructionist opposition in LegCo and elsewhere combined with a refusal to support reformist programs in the political, economic, and social spheres. Their politics was that of irresponsible attack on the colonial state, knowing that they could never win control of that state in any democratic election.
A similar situation existed from 1969 until 1991 when the single party KANU government led by all-powerful presidents could not be democratically influenced or changed. That situation was the product of a neo-patrimonial political system with roots in the colonial era. Patrons (with presidents as patron-in-chief) ruled by gaining clients whom they bound loyally to them using state resources. This perpetuated the divisions noted above and also the on-going dichotomy of the elite against the masses, oligarchy vs democracy, and exclusion and inclusion.
The setting of the elite against the masses or the big men against the little people is another enduring part of Kenya political practice.
These themes and the practices associated with them impacted post-independence history and produced many of the issues highlighted by the two reports of the BBI taskforce. These political factors have been, and are, closely tied to many of the critical, and most divisive, issues confronted in any study of Kenya’s history since the end of 1963. Prime amongst those are devolution or majimbo, unequal access to national resources, and income inequality with access to land right at the top. Others noted in studies of that historical period include questions relating to the “ownership” of Kenya. Does it belong to all Kenyans or to a few? Can a Kenyan citizen live anywhere within the nation’s boundaries? How can gender inequality be fruitfully addressed? Another unaddressed issue is the so-called “neglected north” of Kenya that has been “left behind” in many ways. All these can be directly tied to policies and practices that have produced exclusion, at least in theory, and can certainly be addressed, in some measure, by constitutional changes.
Changes by means of constitutional amendment were relatively common during the second half of the twentieth century as that period witnessed several “change the constitution” initiatives. The first of these emerged immediately after Madaraka Day (June 1, 1963), and a key demand and goal of Prime Minister Jomo Kenyatta’s government was to alter the procedure for amending the independence constitution. Mzee Kenyatta was partially successful in achieving change at Lancaster House III, though it was not the result of negotiations and compromise with the KADU opposition leaders. The majorities required in both houses of parliament were reduced for certain categories of amendments, and a procedure for a national referendum was inserted in the independence constitution, although it would not be used for several decades.
The changes, the KANU government’s failure to implement portions of the independence constitution, and the demise of KADU in November 1964 opened the way for constitutional amendments that established a republic with an imperial presidency (itself reinforced by further amendments such as the 10th of 1968) and the seeming end to devolution through the elimination of regional powers and a bicameral legislature as well as periods for Kenya as a de facto one-party state (1964-66 and 1969-82). All amendments prior to the end of the century were achieved by parliamentary vote rather than by a national referendum. Many amendments to the constitution were passed quickly and with minimal debate. For example, the amendment opening the way for the “little general election” of 1966 was approved by parliament in two days as was the 15th amendment of 1975 (the so-called Paul Ngei amendment). The infamous 19th constitutional amendment of 1982 (that made Kenya a de jure one-party state) was also rapidly approved with no opposition on the second and third readings. A key characteristic of this period was that constitutional change was politician-driven (in some cases by the president himself) rather than people-driven.
The history of amendments in independent Kenya is thus important to take into consideration. The return of multipartyism in 1991 was a result of, and produced additional, change the constitution initiatives, but the changes advocated were on the whole different from those of previous years as they called for democratization of the political system and an extension of civil liberties. The failure of political pluralism to bring these about or to remove the autocratic and corrupt KANU regime of President Daniel arap Moi led many to move from demands for constitutional change by amendment to calling for the introduction of a new constitutional order. Such campaigns for change became increasingly strong during Moi’s last term as president (1997-2002). A key characteristic in this drive for change was the continued conflict between those who wished a people-driven process of constitution-making versus those advocating a politician-driven pathway to a new constitution.
A key characteristic of this period was that constitutional change was politician-driven rather than people-driven.
This conflict came to the fore after 1999-2000 when a serious attempt was launched to create a new constitution with the creation of the Constitution of Kenya Review Commission and the appointment of distinguished law professor Yash Pal Ghai as chairman of the review commission. The commission began to collect public views on constitutional reform during 2001 and 2002 for what many Kenyans hoped would be the basis for a new, people-driven, constitution to be introduced prior to the general election expected to be held at the end of 2002. Politicians had the last word, however, as the new constitution produced by Ghai and his team was not moved forward in parliament, and Moi quickly dissolved that body leading to the 2002 election. KANU was defeated by the NARC coalition and the hopes of many Kenyans for a new constitution under now president Mwai Kibaki seemed likely to be quickly fulfilled.
As is well known, this hope did not materialize during Kibaki’s first term, and by 2007 many Kenyans had reason to despair. Many factors have been put forward to explain this delay. Among these were continued division over a people-driven versus a politician-driven process, which in some ways reflected the elite or big men versus the larger number of small men dichotomy of the past. The influence of the neo-patrimonial politics remained a factor with wealthy individuals seeking to control the process, and the inability to adopt democratic norms proved a barrier to a new governing order. Also critical were divide and rule traditions (producing exclusion for many) as against the ideal that all Kenyans should have a stake in their government, no matter their ethnicity or place of residence (inclusion). The opposition mentality mentioned earlier also made compromise and agreement difficult.
These divisive factors played themselves out around several key constitutional issues. Those included the shape and powers of the executive branch, the nature of the franchise and of representative government, separation of powers, civil liberties, devolution, and financing a new constitutional order. These all presented bones of contention in the framing process as Kenyans struggled particularly to find consensus around the executive (a president as head of state and government versus an executive prime minister as head of government), legislature (unicameral or bicameral), system of representation, and devolution. The latter issue had become critical since majimbo came back into popular discourse and political contention in the 1990s and later.
Calls for federalism had accompanied the ethnic clashes that disrupted western Kenya and the coast during that decade. Furthermore, as time passed federalism was viewed by increasing numbers of Kenyans as a constitutional means to promote inclusion and as a means of diminishing the huge powers of the executive branch that had marked the presidencies of Jomo Kenyatta and Moi.
As most Kenyan adults in the 2020s know, the process of reaching a new constitutional order took many twists and turns between 2002 and 2010. The divisive constitutional issues noted earlier continued to burn brightly with the struggle for a people or politician-driven governing document at centre stage. 2004-05 witnessed parliament take control of the reform process through a select committee. Although politician/elite-driven, the process of constitution-making was now, and in the days and years to come, marked by deep division among the political elite and the public. Despite a lack of consensus among members of parliament (usually viewed as between those supporting Kibaki and those opposing his re-election), the select committee dropped the revised Ghai draft constitution presented to the attorney general in March 2004. Devolution was provided for in the new document as well as a unicameral parliament, a powerful presidency, and a non-executive prime minister. A divided political class and populace moved to the November 2005 referendum, the first in Kenyan history, which produced a decisive rejection of what was then termed the “Wako draft”. The constitution itself was not the only factor, and other issues such as the performance of the Kibaki administration were influential.
All amendments prior to the end of the century were achieved by parliamentary vote rather than by a national referendum.
In many ways, the referendum proved to be a rehearsal for the general election of December 2007. Despite political realignments, the demand for a new constitution was a central topic for discourse and many of the issues in constitutional dispute remained contentious while politicians and populace remained deeply divided in hostile parties. The most controversial election in Kenya’s history was the result, and the disputed outcome led to electoral violence, loss of lives, and the displacement of thousands of Kenyans from their places of residence in early 2008. As in the late colonial period described earlier, the inability of the Kenya political elite to compromise and reach consensus necessitated outside intervention, though this time not the British government. A political settlement ending the violence emerged with the assistance and pressure of the African Union and the United Nations, and a key element of this was the agreement of all political leaders and parties to work expeditiously to give Kenya a new constitution which would deal with the issues of the 2002-07 era as well as those dating from a much earlier period.
The new constitution was promulgated in August 2010 following the approval of 67 per cent of those voting in a referendum early that month, but the process was hardly easy or straightforward. Differences among the political elite, regarding the executive and devolution, again characterized the process. The latter took the form of 47 county governments, while the former, after intervention by parliamentarians, provided for an executive president and a deputy president, but no prime minister. In a major departure from the past, these leaders were to work with a cabinet consisting of non-members of parliament which was to be cast, as in the independence constitution, as bicameral. The referendum outcome indicated a significant level of public support and, led by Raila Odinga, most politicians supported approval in the referendum. Yet there were warning signs in this outcome that created Kenya’s second republic.
Among those signs were the fact that following the promulgation, much needed to be done to flesh out the details through legislation (as in the creation of a new supreme court). This proved to be a slow process and had not been completed by the time of the first general election (March 2013) under the new constitution. There were also misgivings that despite the democratic and progressive nature of the new constitution, its promise of inclusion and a better future for Kenyans might be weakened by tribalism, inexperience and incompetence at the level of devolved units of government, and continued corruption of the type that had plagued the previous governmental order under Moi and Kibaki. Political divisions remained as was illustrated in the outcome of the referendum. Eighty-eight per cent of Kalenjin voters rejected it as did 53 per cent of the Maasai. Moreover, only a slim majority voted in favour among the Kamba. Yet if press comments and political commentaries are any kind of a guide, the Kalenjin, following the lead of Deputy President William Ruto, now strongly support the 2010 constitution and see no need for change.
As time passed, federalism was viewed by increasing numbers of Kenyans as a constitutional means to promote inclusion and as a means of diminishing the huge powers of the executive branch.
The result over the past decade has been to spark yet another change-the-constitution movement despite the progressive nature of the 2010 constitution. On the whole, the factors driving the movement and leading to the handshake agreement of 2018 represented few new elements in Kenyan politics and constitutional discourse. The controversial general elections of 2013 and 2017, marked by heightened ethnic animosity and violence, were illustrative of a lack of inclusion, consensus, and a common feeling of nationhood among large segments of Kenya’s population. The first-past-the-post electoral system inherited from the British model, so it was argued, discouraged compromise, heightened ethnic hostility, and left some ethnic groups feeling marginalized and excluded from national decision-making, particularly through exclusion from the executive.
In the views of many Kenyans, moreover, corruption at both the level of the national and the county governments has not been tamed, but has grown more widespread. Unequal access to national resources and economic inequality generally continued to grow. For those Kenyans who feel that the cost of governance itself is a cause for concern, these economic factors also have emerged as critical considerations for constitutional reform. While the 2010 constitution demanded gender equity, on the other hand, it has clearly not been achieved and nor has affirmative action aimed at inclusion for disabled people and other underrepresented minority groups.
Right from the beginning, the self-government and independence constitutions were fatally flawed in that they were not completely implemented, and the same has been true of the 2010 constitution. The BBI reports discuss these and other issues and make recommendations for change, but the process remains elite-driven and far from radical.
