Constitution and Constitution

Making
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 Content

1. Types of constitutions: Written and

Unwritten.
2. The Independence Constitution of Kenya.
3. The Kenya constitution
a) Constitution making process
b) Features of the Kenya constitution
c) Constitutional amendments since independence.
 What is A Constitution?
A constitution can be defined in a number of ways:
1. A set of agreed principles and rules which state the
structure and power of a government and the
relationship between the governor and the governed
2. Scheme by which a country is governed
3. Basic political principles by which a country is
governed
4. Fundamental principles and rules that govern a state
5. Set of agreed principles, values, rules which act as a
guide to the social conduct of a group of people
6. Body of principles and rules written or unwritten,
that enables people within a country to live in order
and harmony.
Factors that determine the form/type of a
Constitution in a country
1. Geographical factors e.g. USA which
comprises many states or Japan (made
up of several islands)
2. Religious beliefs of the people e.g. use
of Islamic law in some countries
3. Historical background of a country e.g.
colonization
4. Racial composition e.g. the apartheid
racial regime in South Africa.
 Features/Components of a Constitution
It Spells out the:-
1. Duties and rights of the citizens
2. The formal structure of the government
3. Rules partaining to the head of state, his power
and prerogatives
4. Composition, functions and powers of parliament
5. Composition, functions of the cabinet and civil
servants
6. Duties and powers of the judiciary
7. Relationship between the government and its
citizens
8. Fundamental human rights.
 Characteristics of a good Constitution
1. Must be able to protect the fundamental rights
and freedoms of citizens
2. Must be comprehensive and cover all aspects of
government. Thus it should address as many
components of state as it can and as clearly as
possible
3. Must be definite and its contents clearly defined
4. Must be durable, elastic and not easily tampered
with
5. Must be flexible and hence address the changing
needs of the society
6. Should have a provision and a procedure for its
amendment.
 Types of Constitutions
Written constitution
Definition:
❖It is one whereby the basic principles and
rules of a country are contained in a formal
document.
❖Examples of written constitutions
❑USA — written in 1787
❑France— 1791
❑Germany— 1949
❑African countries e.g. Kenya
 Advantages of a Written Constitution
1. Readily available for ease of reference and application
2. Made with careful deliberation and thorough
consideration
3. Simple, clear, precise and consistent
4. Can readily be consulted in case of doubt or discipline
5. Has laid down procedures of amendment and hence
politicians and other influential personalities cannot alter
it or tamper with it.
6. Creates harmony since it sets out clearly the powers and
relationship between different organs of government
7. It safeguards the freedoms of the individual
8. Protects the interests of all including minorities in multi-
racial nations
9. Useful in young growing nations as it enables them to
grow in an orderly and organized manner unites all
people in a nation.
 Disadvantages of Written Constitutions
1. As it is rigid, it is difficult to alter
2. Does not respond adequately and
satisfactorily to changing circumstances
3. Too detailed and uses complex language
therefore its rarely understood by ordinary
citizens
4. It overpowers the judiciary (the organ that
interprets the constitution)
5. Procedure for amending the constitution is
slow and costly and causes delays and
obstacles that may lead to civil disorder and
unrest in a country.
Unwritten Constitution

Definition:

▪ It is one in which the fundamental rules and

principles do not exist in one single written
formal document.

▪ Instead, it is derived from several sources such as

customs of the people and scattered documents.

An Example is the British constitution

British constitution
Sources of the British Constitution
❖ Statutes/acts of parliament
❖ Law of precedent — whereby judges may n if the law based on their
decisions in fresh cases
❖ Customs e.g. procedures of the House of Commons and House of Lords
and successions
❖ customs
❖ Conventions — behaviour and attitudes considered right and normal by
the society
❖ Publications written by scholars i.e. law political thinkers, statesmen, the
press
❖ The Hansard i.e. official report of British parliamentary proceedings
❖ Historical documents e.g.
✔ Magna Carta (1215A.D)
✔ The petition of Rights (1628 A.D)
✔ The Bill of Rights (1689 A.D)
❖ The Reform Act (1832 A.D)
❖ The Parliamentary Acts (1911,1949)
❖ The British Nationality Act (1981).
Advantages of an Unwritten Constitution

1. Flexible and adaptable to changing

conditions in the society
2. Simple to amend
3. Provides continuity with a country’s
traditional
4. Indigenous and thus well suited for a
country
Disadvantages of an Unwritten Constitution

1) Unclear, indefinite and imprecise

2) Can easily be manipulated by those in power
3) Does not provide efficient protection for d
rights of citizens
4) Gives the courts a lot of power
5) Unsuitable for young nations. It operates
more efficiently in countries with a long
uninterrupted history.
 Importance of a constitution
1. Regulates the power of government as well as the
relationship between the government and the
citizens of the country
2. Helps to ensure peace, order and stability without
which there would be chaos or anarchy
3. Defines and stipulates the formal structure of
government and functions and powers of the
different organs of government The constitution
provides a framework within which laws are
formulated
4. Spells out the rights and duties of citizens and the
consequences of the violation of these rights. It
therefore protects the individual against the
encroachment or infringement of their rights.
 Constitution making process in Kenya in pre-colonial,
colonial, and post-colonial eras Pre-Colonial Kenya

CONSTITUTIONAL DEVELOPMENTS/MAKING
PROCESS IN KENYA

Pre-colonial Era

❑Prior to the coming of the colonial masters,

Kenyan communities had unwritten constitutions
that provided guidance in political, social, cultural
and economic affairs. They were governed by
rules and regulations made and enforced by the
councils of elders.
 Colonial Era

Constitutional developments in Kenya can be divided

into several stages:

❖Annexation of Kenya, 1885-1905

❖European settler’s struggle for power, 1905-1923
❖Constitutional development, 1923-1954
❖Multi-racism, 1954-1960
❖Independence constitution, 1960-1962
❖Constitutional change 1980s-2010
Annexation of Kenya, 1885-1905

⮚ Kenya became a British protectorate in 1885 and

in 1888, IBEAC, was granted a royal charter with
wide ranging powers. For example,
⮚ To maintain law and order
⮚ Appointing administrators for dispensing justice
⮚ Eradicating slave trade
⮚ Promoting legitimate trade
⮚ Levying and collecting taxes
The administration of the protectorate was enhanced
through several enactments which included:

❖ East Africa Order in Council 1897-this was the first

step towards the establishment of government
authority in Kenya. The order led to the establishment
of the office of the commissioner responsible for the
establishment of the systems of administration, for
example, administrative bodies, make laws, and set
up law courts.

❖ East Africa Order in Council 1902- this act

empowered the commissioner to divide the country
into provinces and districts for the purpose of
administration. In 1902, the commissioner, created a
number of government departments e.g. Forestry,
customs, works, trade, judiciary, post office,
agriculture, treasury, and the medical department.
❖In order to place the administration of the
railway under one protectorate, western Kenya,
which was till then part of Eastern province of
Uganda, was curved into Western province of
East Africa protectorate on 5th March 1902.

❖From 1903, European settlers were invited from

South Africa, England and even New Zealand to
settle in Kenya to enable the protectorate pay
for the railway expenses and other
administrative coasts.
European settlers struggle for power 1905-1923

❖ 1902, they formed the Colonialists Association (CA) to fight

for their rights. Led by lord Delamere and Colonel Grogan,
they advocated for the increase of the Governor’s powers
and a reduction of the powers of the secretary of state and
a leeway to make settler rules.
❖ In 1905 the East Africa Order in Council was enacted, thus
marking an important stage in constitutional development.
The title of the commissioner was changed to “Governor
and Commander in-Chief” with wide ranging powers. He
could appoint judicial officers including high court judges.
❖ In response to the pressure from European settlers, in 1907,
a legislative council was established in Kenya, comprising
the governor and other appointees of the crown. Its major
responsibility was to make laws.
❖The governor was the speaker and made all the
standing orders and other regulations.
❖Arising from the 1905 Order in Council, an
executive council was also created and together
with the Legco, they became the forerunners of the
current National Assembly and the cabinet.
❖Soon settlers demanded nominated reps and later,
elective reps in Legco. Consequently, in 1919,
through the Legislative Council Ordinance, the
settlers were allowed to have reps in Legco. The
Ordinance provided for only seven electoral areas
and universal adult franchise for Europeans of
British origin, and three nominated members. Of
the three nominees, two were to rep the Asians
and one Arab community.
❖ Unhappy with the pace of reforms, the white settlers
founded in 1920, the Reform Party with the sole aim of
pressuring the government to have a cabinet picked from
Legco rather than the Executive Council.
❖ In 1920 the British East Africa protectorate was declared a
colony, thus effectively changing the name t Kenya-
through the Kenya (Annexation) Order in Council.
❖ The misunderstandings between the Asians and the white
settlers over the privileges given to the Europeans led to
the Devonshire white paper of 1923, which aptly
recognized that the majority of Kenya’s population is
African. The paper marked the end of the second phase
of the constitutional history of Kenya.
Constitutional developments 1923-1954

A. In 1925, official representation in Legco increased to

include:
B. Governor as the president
C. 10 nominated members
D. The life of Legco was three years.
E. In 1948, Royal instructions were issued which provided for
the increase of reps in legco as follows: 18 officials
comprising the governor, the speaker, seven ex-officio and
nine nominated members, bringing the number of ex-officio
to 22. These comprised 11 Europeans, 5 Indians, and 1 Arab.
In addition, there were to be five nominated ex-officio
members, 4 representing Africans and 1 to rep Arab
interests.
F. Thus, in 1948, Kenya acquired unofficial majority in legco for
the first time. In 1952, the number in legco rose to 26 in
contrast to28 unofficial members.
African struggle for representation

❖ Due to the assumption that Africans were unable to

represent their interests effectively in legco, a missionary was
appointed to rep them. Unfortunately, the views of the
missionary and that of the Africans were not the same.
Africans began therefore to press for their own reps in legco.
This eventually led to the formation of early political
associations, for example, KCA, which demanded
representation in legco.
❖ However, it was not until 1944 that the first African, Eliud
Mathu, was nominate to legco to rep African interests. In
1946 the second African, Walter Odede, was nominated to
legco. In 1948, African reps increased to 4 and 6 by 1952
representing six constituencies i.e. Nairobi, central, coast, Rift
Valley, South Nyanza and North Nyanza. All these Africans
were not elected but nominated.
❖ By 1946, Africans formed Kenya African Union (KAU), which
by 1952 was demanding for independence.
Multi-racialism 1954-1960

❖ Due to unfair locking out of African voices in the running of

their government, there arose heightened agitation for
independence, for example the Mau Mau uprising. This led
to further constitutional changes as in the case of Lyttelton
constitution of 1954 which recommended:
❖ that all races should participate in the government
❖ Establishment of council of ministers to take over from the
executive council
❖ Election of African reps to legco
❖ First direct elections took place in 1957. The six
constituencies represented included, Nairobi (Tom Mboya),
North Nyanza (Masinde Muliro), Central Nyanza (Oginga
Odinga), South Nyanza (Lawrence Ogunda), Coast (Ronald
Ngala), Rift Valley (Daniel Moi) Central (Bernard Mate) and
Ukambani (James Mailu).
❖Elected members however, demanded greater
number of elected members and refused to take up
their seats in the council of ministers. This led to yet
again, another new constitution in 1958, Lennox
Boyd, which:
❖Increased African reps to 14
❖Recommended nomination of 12 members
❖Council of minister’s number rose to 16
❖Created a council of state to watch against racial or
segragative legislation.
❖AEMO members made more demands, especially a
constitutional conference where the future of the
country had to be discussed by all the parties.
Lancaster conference was therefore held in 1960.
 1st Lancaster House Conference 1960

❖ The colonial secretary, Ian Macleod, suggested legco should

have 53 elected members. 20 seats were set aside as a safeguard
for minority groups out of which Europeans would have 10,
Asians 8 and Arabs 2.
❖ Provision was also made for a bill of rights that gave an individual
a wide range of rights and freedoms.
❖ The period following the Lancaster conference witnessed a lot of
differences not only among the immigrants, but also among
Africans. Thus in 1960, African elected members met in Kiambu
and formed KANU. In the same year at Ngong town, another
group of Africans met and formed KADU. KANU favored unitary
government while KADU wanted federalism. The differences led
to the convening of the second Lancaster conference in 1962 to
resolve the differences.
❖ The 1962 conference made constitutional proposals which
provided for a federal structure with strong central government.
This 1962 constitution ushered Kenya into independence in
1963.
 Key Issues in The process of constitution making in
Kenya
The process was governed by the constitution review
act of 2001 which enabled the formation of CKRC. The
new constitution followed the following stages:
1. Civic education- enabled awareness among the
public on the current constitution and thus allowed
them to make suggestions on constitutional changes
they wanted
2. Writing of the reports by CKRC- visited all the
constituencies gathering information on the intended
changes from the public and prepared a draft
constitution
3. Printing of the publication and circulation of the
drafts-CKRC circulated the draft in print form to the
public for further comments
5. Feed back- CKRC visited the provinces in order to get
the feedback on the intended constitution
6. National constitutional conference- attended by MPs,
all commissioners, 3 delegates from each district and
other stakeholders met to discuss the draft and made
further changes/recommendations to be included in
the re-drafted constitutional bill
7. Referendum –draft is taken to the people within 2
months after the conference where they either vote
for or against it
8. Presentation to the AG- chairman of CKRC presents
the re-drafted bill to the AG for legal analysis and for
presentation to parliament for debate
9. Presidential Assent-finalized/debated/approved bill is
presented to the president for assent and gazettement
and the draft constitution becomes operational
 Aspects of independence constitution/Features of
independence constitution (1962)
1) Provided for multiparty system in which the party
with majority formed government
2) Provided for a regional/ Majimbo govt. Each region
had a regional assembly and the president
3) Had a bicameral parliament consisting of the
senate and the house of representatives/ upper
and lower house
4) The prime minister was to be the head of
government and the queen the head of state
represented by the governor general
5) Contained bill of rights which protected individual
interests
6) Stipulated procedure for the composition of the
National Assembly
7) Addressed the issues of government income and
expenditure
8) Provided regulations on land regulations
9) Provided for an independent electoral commission not
subject to the control of any person
10) Provided for an independent and impartial judicial
service commission to ensure justice
11) Provide for the public service commission to recruit,
promote, dismiss, or transfer civil servants
12) Provided for citizenship status of people in the country
in which all indigenous communities automatically
became citizens
13) Provided for the power sharing between KANU and
KADU under a coalition government
 Constitutional changes since independence up to
August 2010
1. A constitutional amendment requires 2/3 or 65% of
the vote to be effected.
2. The main constitutional amendments since
independence include:-
3. Amendment to Act 28, November 1964 making
Kenya a republic with:
4. The first amendment, Act 28 of November, 1964. In
which Kenya became a republic with the executive
president i.e. Head of government and state and
the commander in chief of the Armed forces.
– Laid down the criteria to be met by the presidential candidate i.e.
must have been a member of the lower house with at least 1000
registered voters nominees and have support from the lower
house.
5. Provision of a vice-president appointment by
the president from among MPs who was the
principal assistant to the president.
6. Act 38 of 1965 (published December 17) in
which Central government denied the regions
financial powers to enable them perform their
duties effectively thus weakening them.
7. Act 14 of 1965, (published on June 8, 1965) in
which parliamentary approval for the
declarations of state of emergency could be
done with simple majority rather than the
previous 65% and above.
8. Extended the duration within which parliamentary
resolution had to be sought over the declaration
of emergency from 7 to 21 day.
9. Regional assemblies were renamed provinces or
provincial councils and parliament had power to
give them functions.
10. Supreme Court title was renamed Kenya Court of
Appeal.
11. Removed the provisions over the control of
agricultural land.
12. Act 16 of 1966, (published on 12, April) which
made commonwealth citizens eligible for Kenya
citizenship.
13. Act 17 of 1966 (published on 30th April1966),
provided that an MP who resigns from the sponsor
party the parliament to forfeit his/her seat and seek
re-election. (This amendment was done within 48
hours hence the name KPU amendment.)
14. Act 18 of June 1966 published 7th June 1966, in
which the president was empowered to detain a
citizen without trial if he/she was a threat to the
security of the state.
15. Also President was given power to control the
freedom of the press
16. Act 40 of 1966, (published 4th January 1967) which
provided for the merger of lower and upper houses
to create a unicameral legislature.
17.Act 4 of 1967 (published on 31st March 1967)
to the section 42 A of constitution where one’s
actions could be interpreted to mean actions
he/she had forfeited a parliamentary seat by
virtue of supporting a different party.
18.Act of 1968, (published on 12th April, 1968)
which abolished the regionalism i.e. provincial
and district boundary councils Act 45 of 1968
(published on 12th July 1968) which provided
that the president be elected directly by the
electorate.
19. All candidates in general election to be nominated by a
political party thus every political party to nominate a
presidential candidate and ballot papers to bear names
of the presidential and parliamentary candidates from
the same party.
20. The V.P should serve as acting president with the
assistance of the cabinet for 90 days and seek approval
of cabinet in public security, appointment and dismissal
of ministers.
21. It provided for 12 nominated MP in parliament to be
done by the president to represent various interest.
22. Act 50 of 1969 in which all Electoral Commissioners to be
appointed by the president from the previous format
where the speaker chaired the Electoral Commission.
23. Act 2 of 1974 which lowered the minimum voting age
from 21 to 18 years and that of an aspiring presidential
candidate from 40 to 35 years.
24. The 13th amendment of 1974 in which Kiswahili was
made the official language of the National Assembly
from the previous use of English.
25. The 14th amendment of 1975 in which legislative
and financial reports were to be drafted and quoted
in English though could be debated in Kiswahili.
26. The 15th amendment of 1975 in which the president
could pardon any election offender at his discretion.
27. The 16th amendment Act of 1977 which established
the Court of Appeal following the collapse of EAC
and the EA Court of Appeal.
28.Chief justice was made a High court judge and a
judge of the Court of Appeal.
29.The 17th amendment Act of 1977, in which
English was made an alternative language to
Kiswahili in parliament.
30.Provided that future MP’s should be proficient
in both Kiswahili and English in order to qualify
for elections.
31.The 18th amendment Act of 1979 in which public
officers had to resign 6 months before he/she
vie for parliamentary seat
32. The 19th Amendment Act of 1982 in which section 2A
of the constitution was repealed and made Kenya
become a one party state by law “De-jure”.
33. Creation of the office of the chief secretary as the
head of public service which lasted up to 1987 when it
was abolished and replaced by the office of the
secretary of the cabinet. Jeremiah Kiereini became
the head of public service until 1983 and Simon
Nyachae took over until 1987.
34. The 20th amendment Act of 1985 provided the High
Court with power to act as Kenya Court of Appeal in
listening to Election petitions concerning the MPs.
35. Public service commission membership was
increased to 15 including chairman and vice-
chairman.
36. The 21st Amendment Act of 1985 which repealed
section 89 of the constitution which limited any
one born after December 11, 1963 from
automatically acquiring Kenya citizenship.
37. The 22nd Amendment Act of 1986 which removed
the security of Tenure of the offices of A-G, the
controller and auditor general and the chief
secretary. (Thus president could dismiss them at
will this received a lot of criticism from LSK, NCCK
and Episcopal Conference of Catholic Bishops.)
38.In 1988 Amendment Act which removed the
security of tenure of the High Court judges and
the chairman of the public service
commission.
39.Also amendment gave the police power to
hold a suspect in custody for up to 2 weeks
before he/she was taken to court of law if the
crime constituted a criminal offence. Before
then, suspects had to be presented in court
within 24 hours In 1990, Amendment Act,
parliament reinstated the security of Tenure of
the offices of A – G, and the controller and
Auditor – General.
40. 1991 Amendment Act, section 2A was repealed
which reverted Kenya to multiparty state
consequently many political parties were formed
e.g. the first party under revised multiparty state
was Forum for the Restoration of Democracy
(FORD), DP, SDP etc.
41. 1991 Amendment Act which limited the term of the
president in office to 2, five – years.
42. 1997 Amendment Act in which IPPG – Inter party
parliamentary group was passed which aimed at
giving equal opportunity to political parties so that
they could fairly contest for elections.
43. 1998 Amendment Act which provided that a new
constitution would be based on principles of
democracy, accountability, human rights, people’s
participation and social justice.
44.In October 2000, parliament entrenched a bill
enhancing the Constitution of Kenya Review
Commission.{CKRC} headed by Pro. Yash Pal
Ghai into the independence constitution. The
constitution making process gained legal
backing from the National assembly.
45.In 2005 parliament amended the Constitution
of Kenya Review Act which alloed the Attoney
general to review the Ghai Draft and come up
with the proposed new Copnstitution (Wako
Draft). The Wako Draft mutilated the Bomas
Draft and therefore failed to meet the
expectations of Kenyans. It was rejected in the
2005 referendum.
46. In 2007 an attempt was made by parliament to
revive the drafting of a new constitution by
publishing the Constitution of Kenya Review
Bill(2007), which proposed the establishment of the
Council of Reference. The results of the 2007
elections were disputed and this plunged the
country into a political crisis leading to loss of life,
property and displacement of thousands of people.
It took the effort of eminent persons, under the
leadership of Kofi Annan as the Chief Mediator, to
end the crisis and restore peace in the country. This
resulted to a constitutional amendment that
entrenched the National Accord and Reconciliation
Act(2008) into the Kenyan Constitution on 28th
February 2008.
47. On 18th March 2008, parliament amended the
Constitution and adopted the Legislation to give a
legal force to the Agreement. The National Accord
and Reconciliation Act of 2008 enacted in the
constitution legalized the coalition government.
48. The constitution of Kenya Review Act (2008) was set
up to serve as a mechanism for achieving a new
constitution. Under it a Committee of Experts {CoE}
was established to drive the constitution review
process. The Committee prepared Kenyans for the
referendum held on 4th August 2010, in which 65%
of those who voted approved the constitution by
voting in its favour. The Promulgation of the New
Constitution of Kenya on 27th August 2010 was a
constitutional Landmark.
 The National Accord of 2008 under the Grand
Coalition.
The National Accord was set up in February
2008 and had four main Agendas as follows

1) To stop violence
2) Reconciliation
3) Delivering a New Constitution
4) Historical issues
The key Constitutional changes in the New Constitution of
Kenya {2010}
1) Reduction of Presidents executive powers
2) Devolution of power to regions by the creation of
national and county governments
3) Creation of the Senate. The Senate and the Assembly
constitutes the Parliament
4) Establishment of Judicial Service Commission (JSC) which
shall promote and facilitate the independence and
accountability of the Judiciary; ensure efficient, effective
and transparent administration of Justice; and establish
other judicial offices as may be necessary.
5) Citizenship- birth and registration are the only
recognizing ways of attaining Kenyan citizenship while
dual citizenship is constitutionally recognized.
6) Creation of Land Commission which will
ensure effective land use and settle land
disputes in Kenya. The Constitution
stipulates that Land in Kenya will be held,
used and managed in a manner that is
equitable, efficient, productive and
sustainable.
7) Recognition of Kadhis courts as subordinate
courts in the Judicial court system.
8) Expansion of the citizens’ bill of rights to
guarantee equal representation for either
gender in all governance structures and
increased citizens’ participation in
democratic governance.
 Features of the Constitution of Kenya
Some of the features of the new constitution
include the following:-
1) Provides for the supremacy of the constitution
2) Provides for a central and devolved government
with shared responsibilities
3) Provides for national values, principles and
goals
4) General principles of citizenship-retention,
acquisition, citizenship and marriage, children
found in Kenya, dual citizenship, deprivation etc
5) Recognition and respect of culture
6) Enhanced bill of rights including human rights and
gender commission
7) Provides for land and property regulation rights
8) Principles and obligations on the environment and
natural resources
9) Provides for leadership and integrity principles
10) Provides for an independent electoral and
boundaries commission
11) Provides for a bicameral parliament consisting of the
senate and the house of representatives/ upper and
lower house
12)Provides for regional and county
governments complete with assemblies
13)Provides for the position of the president
and deputy president
14)Provides for public finance and revenue
management
15)Provides for independent public service
commission’s- psc, tsc and kcs
16)Establishes the national security organs
17)Establishes commissions and independent
offices
The Structure of the Kenyan Government
KCSE SAMPLE QUESTIONS
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