Friday, September 23, 2011



By Jerry Okungu

Nairobi, Kenya

September 22, 2011

Now it would seem like passing and promulgating Kenya’s new constitution last year was the easier part. Its implementation has produced a raft of unpalatable power losses to the Executive. In many occasions, constitutional officers charged with its implementation have had to either lock horns with the Executive or resort to judicial litigation to stop the Executive from arbitrary appointments like we have seen in the past.

It all started with the President nominating a High Court Judge for the Chief Justice, a practicing lawyer for the Director of Prosecutions and a Professor of Law for the Attorney General. After a bitter power struggle between PNU and ODM, the controversial appointments found their way on the floor of the National Assembly as well as in the Constitutional Court both at the same time. In the final analysis, the President conceded that those appointments were unconstitutional and degazetted them.

Since that show down, three top institutions have lost their Chief Executives that were sued for being in office illegally. And it would appear like the litigants are not done with yet. Now they are eying the Director General of Kenya’s Vision 2030 who it is alleged was irregularly hired since he did not even apply for the job.

A part from the trial of Ocampo Six whose pre-trial hearings are ongoing at the ICC in The Hague, the most talked about political upheavals were the two Cabinet proposals three weeks ago that Parliament should amend the one year constitution to scrap the 30% gender rule. If passed, it would have denied women the 70+ seats that the new constitution had guaranteed them- the very incentive why they overwhelmingly voted for the same constitution.

This controversy did not have to wait for a vote in Parliament as several Civil Society groups had already sued the Cabinet in the Supreme Court because most Kenyans were not sure current MPs would reject the proposal since it was in their favour.

With public debate raging against this callous Cabinet proposal, it would appear like the Executive read the sign on the wall and backtracked. Now it is ready to allocate all the 80 new constituencies to women very much in line with what has been happening in Rwanda and Uganda for some time now. If this materializes, it will go a long way to streamline parliamentary systems within the East African Community. Hopefully, Tanzania and Burundi will follow suit if they haven’t started on the road to affirmative action.

The other hot potato in Kenyan politics has been another controversial Cabinet proposal to amend the same constitution to change the election date from August to December 2012. This proposal has seen the Constitution Implementation Commission lock horns with the Cabinet and even threatened to take the matter to the Supreme Court.

And with public opinion very much against Cabinet proposal, it is a gone conclusion that the newly appointed Supreme Court judges will want to prove to Kenyans their independence by protecting the public’s interest. With backing from back benchers, it will be a miracle if the Minister for Justice fails to read this public mood and tables this controversial bill in Parliament.

The reason why Kenyans would be weary about amending a constitution this early is because their memory is still very fresh when they remember how the 1961 Lancaster Constitution was mutilated in the first two years of Independence. It was those same arbitrary amendments at the behest of the Executive that eventually turned Kenya into a one- party state with dire consequences for the rule of law and democracy.

Within one year after Independence, Kenya became a Republic over night without any public referendum. All of a sudden, we had an Executive Imperial President instead of the Prime Minister accountable to Parliament. In that period, we saw the Senate and Regional Assemblies abolished without a referendum. Shortly after that, the only opposition party KADU dissolved itself and joined KANU. When the opposition died, President Kenyatta set the stage for the first autocratic rule where his word became law.

Three years down the line his Vice President resigned from KANU and formed another opposition part- Kenya People’s Union. However, with the vast state security organs in the hands of the Executive, the opposition was frustrated until it was finally banned in 1969

With no further challenge on the political scene, Kenyatta ruled Kenya for 15 years without facing any elections. He was always elected unopposed.

When the founding father passed on in 1978, Daniel Arap Moi his Vice President of 12 years promised Kenyans that he would follow in Kenyatta’s footsteps. True to his word, Moi perfected the art of dictatorship. He officially made Kenya a de jure one party state in the early 1980s and thereafter ruled the country with an iron fist. KANU became the father and mother of every Kenyan. KANU was the government and the government was KANU. For this reason, KANU District chairmen such as Okiki Amayo of Karachuonyo, Kariuki Chotara of Naivasha, Kihika Kimani of Nakuru and Nassir of Mombasa became kings unto themselves. They terrorized Kenyans in the name the President.

These are the memories that make Kenyans weary of early constitutional amendments even before we implement the damn thing!