Old habits die hard: How colonial blues have impeded constitutionalism in Kenya

The constitutional story in Kenya is a profile of serial piracy and betrayal by the national Executive. Daniel Branch recalls Jaramogi Oginga Odinga’s cynicism towards the Constitution in 1964. Parliament was then making the first amendment to the independence Constitution.

Addressing the house, Jaramogi quipped, “We accepted in Lancaster House the Constitution we did not want, because we knew that after independence we would replace it with what we wanted.” 

It was the start of an endless process of tinkering with the Constitution. In the fullness of time, it made the laws of the land a plaything for the power elite. In this, the Constitution has been the most regular punching bag. When the Constitution of Kenya (2010) was promulgated 15 years ago, today, Kenyans thought they had finally crossed the proverbial valley of the shadow of death. They would fear no evil; for the Constitution was with them, their rod and staff.  

Yet, actuating this rod and staff remains a pipe dream. The power elite has lacked constitutionalism. They have been heroes of reversals and negations. Even those who seemed to be votaries of the rule of law have retreated, stumbled and fallen. ODM’s Raila Odinga is only the latest, of the constitutional renegades, but by no means the first, or only one.  

In 1963, Kenya was buoyant with neonatal freshness. A brand new nation emerged from the dying embers of harsh colonialism. Africans of diverse traditional nationhood were coming together, as a new nation and state.

Their Lancaster Constitution bound them together as the supreme legal entity. Tribal laws and codes before the advent of colonialism would now be relevant only if they did not contradict the Constitution. Indeed, any other laws in conflict with the Constitution would be null and void to the extent of the contradiction.  

Yet it has not been that way. The new African elite overthrew the rule of law that came with independence. It replaced it with a draconian presidency. In his 1995 book, A Commentary on the Constitution of Kenya, Peter Okondo decried Kenya’s regal and monarchical presidency. He regretted that decades of tampering with the independence constitution had created an imperial presidency. Even if the president should be a good man, the Constitution invariably made him a dreadful monster.  

The 11 December 1964 amendment was significant for ending Kenya’s subordinate status as a dominion of the British crown, despite gaining independence a year earlier. We became a republic. Jomo Kenyatta became our first president.

His former office as prime minister was abolished. Yet, that which made us happy soon began making us unhappy. It is instructive that Jomo became president without being elected to that office.

In practice, he was never to be really elected as president at any time. In 1969 and 1974, he was returned unopposed, both as MP for Gatundu and as president. The processes that delivered his returns can only be described as electoral fiction. The powers of the state were so daunting that nobody dared run against him. 

The 1964 amendment also abolished the Senate and weakened Parliament’s oversight over the Executive, especially over the president. It steadily led the country towards a one party-state, largely due to constitutional tampering led by Tom Mboya, and later Mwai Kibaki and Charles Njonjo. They made laws that in effect placed the President “above the law.”

They also made Parliament and the Judiciary submissive to the Executive, while on paper there was separation of power, with the essential checks and balances. The 1980s would witness barefaced Executive abuse of the courts. They became  political conveyor belts to prison, of progressive voices.   

Apart from tearing down the constitution, good laws have existed on paper in Kenya, but the high and mighty ignore them with impunity. When they have not ignored them, they have changed them to suit seasonal goals.

Hence it was that, in 1975, election laws were changed to allow the president pardon election offenders, to allow them run in subsequent elections, or by-elections. The law had previously prohibited this. President Kenyatta wanted his friend, and former colleague in detention, Paul Ngei, to run in a by-election in Kangundo Constituency. Ngei had just lost his seat, following a petition over electoral malpractice, filed by Raphael Mbondo, his key opponent. Ngei won the ensuing heavily militarised and undemocratic by-election. 

That is how Kenya’s power elite rolls. In recent times, devolution has brought hope to the 47 counties. Yet, the centre does not want to let go. Contests between the two levels of government, over authority and resources, is the order of the day.

The Constitution provides clearly for funds following devolved functions. But this has rarely happened, or happened only with huge reluctance by the national Executive. Hence, health functions may be devolved. Yet, the budget lines in the Ministry of Health will remain as they were before devolution.  

In this Ministry, moreover, you may find the Cabinet Secretary personally supervising hospitals. He arbitrarily shuts down some and decides which ones will remain, without involving county governments.

Indeed, even where intervention should come from the Ministry headquarters, the CS takes over the role of the Principal Secretary and that of other Ministry executives.

He becomes an itinerant individual, reading out Riot Acts that directorates in the Ministry should read. The constitutional delineation of who does what and when is lost, in both internal competitions for power in the national government, and between the national government and county government.  

Mercifully, the Judiciary has remained steadfast in exercising its independence, despite efforts at blackmail and arm-twisting.

When in September 2017 the Supreme Court nullified the presidential election, on account of a surfeit of illegalities and irregularities, President Uhuru Kenyatta took on the Chief Justice, and the entire Supreme Court. He dismissed them as “Maraga na wakora wake (Maraga and his gangsters). Such scorn for the Judiciary goes on unabated under President William Ruto. He makes no bones about his disdain. He states openly that he will choose when to obey court decisions and when to defy them.  

Under both Presidents Uhuru and Ruto, Parliament has failed to enact the law to operationalise the two-thirds gender rule as contemplated in the Constitution.

The same Constitution is clear that if after ten years Parliament persists in this failure, the Chief Justice, if petitioned by any Kenyan, shall advise the President to dissolve Parliament and go to an election to bring in a fresh crop of MPs.

The matter is expected to gain urgency. For, the dissolutions will go on until such a time as the law is enacted. When CJ David Maraga advised President Uhuru, accordingly, the matter was trivialized within the presidency and the political class. Subsequent filibustering through court corridors killed the advice. The life of the 12th Parliament ended without the courts determining the matter.  

Quite often, then, the Executive has operated within the framework of impunity. Cabinet Secretaries may be summoned to appear before Parliament. But they will defy the summons, their faces and speech besmeared in scorn. In his time as Interior CS, Dr Fred Matiang’i perfected this defiance. He spoke dismissively of extra-judicial killings of political dissenters, and of disappearances of persons and discoveries of dead bodies in lonely river beds, and other unlikely places. He waved away civil society interventions as “nonsense about human rights.” 

Such things happen despite the fact that Kenya has a beautiful Bill of Rights in Chapter Four of the Constitution. President Ruto has, for instance, recently directed the Kenya Police to shatter with bullets the legs of any youth who may demonstrate against his government.

Article 37 of the Constitution expressly grants every citizen a right to a peaceful, unarmed assembly, as well as the right to picket, demonstrate and present petitions to public authorities. Under the present dispensation, however, such petitioners have been scuttled by joint anti-demo operations by the police and goons. Scores have been killed, and scores more maimed or injured.

Such interventions take Kenya back to the 1960s, when the Public Order Act was enacted, contrary to the promise of civil rights and liberties that independence brought in 1963. But, while President Ruto has ordered that only the legs should be broken, his CS for Interior Kipchumba Murkomen has decreed that the police should shoot to kill. He is supported in this position by Belgut legislator, Nelson Koech. The indicators are that these are unlikely to be random outbursts. They sound more like compulsive leaks from dialogues in inner sanctums of regime caucuses.  

Scholars on elections, leadership and constitution making in Kenya all agree on one point; the political power elite gathers to disrupt constitutionalism for selfish interests. Joel Barkan (Kenya Lessons from a Flawed Election; Willy Mutunga (Constitution Making from the Middle: Civil Society and Transition Politics in Kenya); and Yash Pal Ghai with Jill Cottrell (Kenya’s Constitution: An Instrument for Change) are all agreed on the abuse of constitution making agendas by political marauders and buccaneers.  

They speak to both overt and covert authoritarianism in the political elite class. With them are concentric circles of submissive praise singers and hired hero worshipers. Together, they are the bane of constitutionalism in the country.

Hence, today for instance, Raila Odinga and William Ruto have paired up to rule through an illegitimate joint government. Both the Constitution of Kenya (2010) and the Political Parties Act (2011, Amended 2017) are very clear on coalition government. Two or more parties may sign a coalition government before or after elections. The accord must be clear about the coalition. It will detail the structure of the coalition entity, policies, and other detailed visionary and missionary agendas. That done, they must register the treaty with the Registrar of Political Parties.   

Ruto and Odinga have formed a post-election coalition government without following the law. They consider the law to be only an opinion. Their broad-based government, as they call it, is a private entity entered by two authoritarian politicians. Their joint Cabinet is illegal, as are other joint organs of government. The political groupies on both sides are, however,  quite at home with the illegality. They remain prayerful that it could be formalised into a pre-election coalition ahead of the 2027 elections.  Earlier, Odinga entered into a similar unlawful arrangement with President Uhuru Kenyatta (March 2018 to September 2022), after a hugely divisive presidential election. At every opportunity, Ruto derisively referred to their illegitimate government as “a mongrel.” He would wonder whether the “canine arrangement” placed the opposition in government, or the government in opposition. 

Today, he happily heads Kenya’s second mongrel regime, “in the interest of national unity,” he says. It would appear that the urgency of national unity does not make for clear constitutional covenants.  

Within the framework of impunity, therefore, unsuccessful efforts have been made to tinker with the constitution. The Building Bridges Initiative (BBI) was one such effort, by Odinga and Uhuru. It collapsed in the courts. Not ones to take any lessons from history, Odinga and Ruto now drive another two-pronged agenda under their NADCO Report, and  a private two-person agenda, styled as “Ten Points Agenda” between ODM and UDA parties. The Secretary General of ODM, Edwin Sifuna and other ODM officials do not recognise the union between Ruto and Odinga.

According to the law, the SG is both party spokesperson and signatory to lawful agreements. Besides being the Nairobi Senator, Sifuna is also the Deputy Minority Whip in the Senate, and a practising advocate. That Odinga and Ruto refuse to listen to him on matters of law indicates the high levels of political licence and contempt for the Constitution.  

It is nothing new. Presidents Kenyatta and Moi were more subtle in managing their politics around the Constitution and the law. They were at pains not to appear to break the law. Hence, where expediency dictated, they would change the law, or enact a new one before action. Ruto looks the law straight in the eye and tells it to jump into the ocean.

Despite the presence of a battery of lawyers around him, his Kenya Kwanza regime represents the worst intersection between the law and personal power interest and politics in Kenya. Raila leads the willing supporting cast. The beautiful ones are yet to be born in our political arena, those who will respect the sanctity of the Constitution and the law, even when it does not bend to their desires, whims and sundry appetites. For now, the Kenyan dream remains postponed.  

Dr Muluka is a strategic communications adviser and Secretary General of DNA party.