The pre-independence constitutional order

The origin of Kenya's constitutional order has been closely linked with the declaration of the British East Africa Protectorate of 1895.Footnote ⁴³ Prior to this period, the country had no formal legal system or government as recognized today. However, like every other pre-colonial African society, the traditional communities that lived in the territory, now called Kenya, had peculiar forms of socio-political arrangements that could loosely be termed “government”.Footnote ⁴⁴ Although these communities differed in a number of ways, there is ample evidence to the effect that most of them gave credence to human rights, especially “participatory rights”.Footnote ⁴⁵ It cannot be disputed, however, that there were certain barbaric practices in these societies, which could lead one to presume the absence of human rights, or even law. This state of affairs was nevertheless not unique to pre-colonial Kenya as human rights violations were a common feature in all human societies the world over.

Before this article examines the emergence of Kenya's constitutional order, it is imperative to point out that, prior to foreign intrusion, the subsisting traditional societies were mainly governed by customary law and traditions.Footnote ⁴⁶ Foreign intrusion later led to the decline and subsequent demise of the then subsisting kingdoms and chiefdoms. Nevertheless, some aspects of customary law survived the onslaught of foreign invasion even after vehement attempts to obliterate it. The coming of foreigners into the country, however, did have a direct and decisive impact on customary law. In the first place, with the coming of Arab slave traders and later the European colonialists, African customary law no longer evolved according to African needs. Having been effectively disarmed, African societies easily became subjects of political, economic and social domination as their cultures were either ignored or supplanted with foreign ones. It was within this context that Kenya's constitutional order evolved and developed over the years.

Throughout the second half of the 19th century, some European states brutishly jostled one another for influence and control over trade of certain valued commodities in Africa.Footnote ⁴⁷ So intense was the competition that in 1884 Chancellor Bismarck of Germany convened a conference of European nations “to establish rules for recognizing spheres of commercial suzerainty”.Footnote ⁴⁸ Eventually, Africa found itself under the control of European colonialists. The major colonial powers at that time were France, Britain and Belgium. Portugal, Germany, Italy and Spain exerted some measure of colonial authority as well, though they did not have as great an impact as the other three.Footnote ⁴⁹ Kenya thus came under British rule in the aegis of British East Africa Protectorate.

The declaration of protectorate status vested authority on Britain to govern the territory that had all along been occupied by “stateless” communities with distinct political and social traits.Footnote ⁵⁰ Faced with such a challenge, the colonialists needed to establish a workable system of government. The first signs of organized administration therefore emerged with the promulgation of the East Africa Order in Council in 1897. Among other things, this order defined the jurisdiction of the British monarch over the protectorate and provided for the establishment of the Office of the Commissioner who was to administer the territory on behalf of the monarch.Footnote ⁵¹ Since the protectorate had no legislature, all its laws emanated from Britain and were conveyed as royal instructions known as Orders-in-Council.Footnote ⁵²

The first commissioner to administer the East Africa Protectorate, Sir Charles Elliot, was appointed in 1900 and served until 1904. During his tenure, the white settlers formed a loose political-cum-welfare group, the Colonialists Association, which could be seen as a precursor of political parties in Kenya. The association, though not really a political party, advocated for the recognition of the liberties of its members as afforded to every British citizen.Footnote ⁵³ For instance, in 1905, it remitted a petition to the British secretary of state for the colonies, demanding representation in the administration of Kenya. The transfer of the protectorate's administration from the British Foreign Office to the Colonial Office orchestrated this move.

In response, Britain promulgated the 1906 Order in Council, which provided for the establishment of an Executive Council, headed by the governor, to assist in the administration of the country.Footnote ⁵⁴ In accordance with its mandate, the council passed legislation until mid-August 1907 when the Legislative Council (Legco) was incepted.Footnote ⁵⁵ Despite the fact that Africans constituted the most predominant racial group in Kenya, only “whites” were until then permitted to participate in the administration of the country. Indeed, it is unfortunate that Africans were not appointed to the Legco and very disappointing that all appointments were made by the governor in total disregard of the peoples' right to choose their representatives. The idea of the governor “hand-picking” members of the Legco did not auger well with either Africans or Europeans.

As the settler population grew, the Colonialist Association formed branches throughout the country. In 1910, the branches united to form a countrywide organization called the Convention of Associations. In the main, this convention was intended to prevail upon the secretary of state for the colonies to make provision for the election of unofficial members to the Legco. Although the demand was initially resisted, it was not long before the secretary conceded. In 1919, the Legco Elections Ordinance was enacted, providing for the creation of eleven constituencies in the country.

The first elections were held in 1920 at a time when European settlers were pushing for the creation of a “white man's country” in the colony.Footnote ⁵⁶ Consequently, membership of the Legco was restricted to European representation. The aspirations of a “white man's country” were, however, thwarted by the Devonshire White Paper of 1923 which declared Kenya an African territory in which the interests of the “natives” would reign supreme. Through the paper, the British government was to exercise trusteeship over the colony, the objective of the trust being to protect and advance the interests of Africans.Footnote ⁵⁷

Following the issue of the white paper, the Elections Ordinance was amended in 1924 to legalize the election of five Indians and one Arab to represent their communities in the Legco. Meanwhile, provision was made for the nomination of a clergyman to represent African interests on the council. This decision was informed by the belief that Africans were incapable of governing their own affairs and could therefore not be entrusted with any responsibility in the Legco or elsewhere at the national level. It was felt that Africans could only participate at the “reserve” level, hence the introduction of the Local Native Council Ordinance which provided for the creation of Native Councils in every reserve.Footnote ⁵⁸ It was not until 1944 when the first African, Eliud Mathu, was appointed to the Legco. This came only after the African masses violently rebelled against racial discrimination, the aftermath of which necessitated serious legislative reforms.Footnote ⁵⁹

The journey towards equal participation in government by all races began in 1954 when the Lyttleton Constitution was enacted.Footnote ⁶⁰ This constitution was the first public endorsement by colonial authorities of multi-racial participation in government as it established a Council of Ministers consisting of 12 individuals from all races.Footnote ⁶¹ In spite of these developments, Africans were becoming increasingly unhappy with having their representatives chosen for them. To avert further racial tensions, the colonial administration appointed a Commission of Inquiry in 1955 to look into ways of increasing African participation in government. In response to the findings of this commission, the Legislative Council (Amendment) Ordinance of 1924 was amended to effect the election of eight African representative members. The first elections of African representatives to the Legco were held in 1957, amidst great dissatisfaction and protests from African leaders.Footnote ⁶²

The disquiet expressed by African leaders provoked the promulgation of the Lennox-Boyd Constitution in 1958 that ushered in more changes to the existing constitutional order. This constitution provided for an expanded Council of Ministers comprising 16 individuals. This time, half of the ministers were to be elected members of the Legco.Footnote ⁶³ Moreover, African representation in the Legco was increased to 14 members, a number that was equal to that of elected Europeans. However, the framework introduced by the Lennox-Boyd Constitution did not find support from the Africans leaders. Specifically, they were not pleased with the provisions regarding “specially elected members” and the general policy of multi-racialism that was the main objective underlying the constitution.Footnote ⁶⁴

This disquiet led to the formation of the Kenya Independence Movement, a political organization intended to champion the rights of Africans and their political independence.Footnote ⁶⁵ Through this movement, African representatives in the Legco declined to co-operate in government, arguing that representation still weighed heavily in favour of the settlers who constituted a minority of the population.Footnote ⁶⁶ They demanded a constitutional conference to map their political destiny, forcing the new secretary for the colonies, Ian Macleod, to convene what came to be known as the First Lancaster House Conference in January 1960. This resulted in the adoption of the Macleod Constitution.

Among other things, the Macleod Constitution expanded membership of the Legco to 65 individuals and provided for the protection of minority interests by reserving 20 seats for racial minorities.Footnote ⁶⁷ It also provided for a Council of Ministers with an African majority, and drastically opened up the country's democratic space by allowing the formation of multiple political parties by people of all races. Until then, it was unlawful for “blacks” to form political organizations.Footnote ⁶⁸ Accordingly two national African political parties, the Kenya African National Union (KANU) and the Kenya African Democratic Union (KADU), were formed. Subsequently, a general election was held in February 1961 to implement the provisions of the Macleod Constitution.Footnote ⁶⁹

It appears that the outcome of the First Lancaster House Conference fell short of the expectations and demands of both Africans and Europeans. Whereas the Africans accepted to work within the framework of the Macleod Constitution, they had strong reservations about the requirements they were to fulfil in order to be registered as voters, their proportion in the Council of Ministers and the distribution of the Legco seats among the three races. For their part, the Europeans were opposed to the entire package of the Macleod Constitution, allegedly because it did not adequately safeguard their interests.Footnote ⁷⁰ Because of this, the African representatives intensified the struggle for their rightful share of power, leading to the Second Lancaster House Constitutional Conference in February 1962. This conference resulted in an agreement on a firm framework for a new constitution.Footnote ⁷¹

Notwithstanding the fact that the conference was held amid deep-seated mistrust and differences between KANU and KADU, the constitution that evolved from the negotiations was more representative than its predecessors. With minor modifications, this constitution later formed the basis of the Independence Constitution. In substance, it established a form of Westminster government and provided for a bi-cameral legislature. Perhaps with the intention of enhancing citizens' participation in government, the country was divided into seven regions, each with its own legislature and executive.

The final pre-independence constitutional negotiations were held in 1963, during which an agreement was reached for internal self-government on 1 June 1963 and full independence six months later. Negotiations for the Independence Constitution commenced soon after the establishment of the internal self-government and climaxed in the final constitutional conference later that year. The Independence Constitution was agreed upon without much difficulty and with minimum changes to the previous one. It should be recalled that the central theme that permeated the promulgation of this constitution was the quest for equality amongst all races represented in the country. Simply put, its drafters sought to restore racial equilibrium in the governance of the country and in the distribution of its resources.

The post-independence constitutional order

When Kenya attained independence on 12 December 1963, the British government transferred power to Africans through the Kenya Independence Act and the Kenya Independence Order in Council of 1963.Footnote ⁷² The Independence Constitution was set out in schedule two of the Order in Council. The document was long, detailed and complex, and was strongly based on the principles of parliamentary government and the protection of minorities.Footnote ⁷³ The nature and content of this constitution was largely influenced by the then prevailing political circumstances.

To begin with, awareness that the colonial authorities were about to relinquish governance to Kenyans sparked off acrimonious debate on the modalities of distributing political power among the subsisting political parties. At that time, the country's politics were dominated by KADU and KANU. KANU was essentially an alliance between politicians from Central and Nyanza Provinces, and a staunch proponent of a centralized system of government.Footnote ⁷⁴ KADU, on the other hand, represented the interests of numerically and politically weaker ethnic groups and expressed, among other things, its preference for a federal system of government. Its insistence on this system of government was motivated by the need to consolidate the weaker economic and numeric bargaining power of its supporters.Footnote ⁷⁵ KANU was disinterested in such a system because it had much to gain from centralized control of economic and political resources courtesy of its numerical strength.Footnote ⁷⁶ The political differences between the two parties, however, were resolved when their leaders decided to merge them in 1964.

Another factor that influenced the nature and content of the Independence Constitution was the minorities' desire for self-preservation. The numerically smaller groups, such as the Asians and Europeans, became increasingly aware of their precarious position in the newly independent state.Footnote ⁷⁷ Therefore, the attendant fear of reprisals compelled them to lobby for constitutional safeguards and other means of power sharing. In summary, three broad themes characterized the Independence Constitution: regionalism to safeguard KADU; protection of minorities; and the control of the exercise of political power.Footnote ⁷⁸ The interplay between these factors resulted in the establishment of a weaker form of government than that of the colonial administration.Footnote ⁷⁹

All the same, the emergence of the independent state revived the hopes and aspirations of the African masses, which were at the time impoverished and taken aback by the brutish colonial legacy. This was especially so because political power had passed from the hands of colonialists to indigenous leaders who were expected to understand and appreciate the problems of their people. It was equally expected that the “lost glory” and traditional values that had been undermined by colonialism would be restored, of course with some reforms that would accommodate the socio-economic and political diversity of the country. This, however, turned out not to be the case. Instead, the emerging state adopted a constitution and legal system similar to that of her former colonizer, notwithstanding the fact that the new constitution could not adequately redress the woes of the people.

The constitution came with a flowery package of guarantees, including a multiparty system of government, independence of the judiciary, rule of law and protection of human rights.Footnote ⁸⁰ It however failed to entrench certain crucial rights which now pose a threat to national unity. Whereas the document contains a Bill of Rights that guarantees the traditional civil and political rights as set out in the UDHR, it does not expressly guarantee the right to participate in government. The Bill of Rights, therefore, cannot be said to be representative of a set of higher values emanating from, and subscribed to, by the Kenyan people. Rather, it was meant to be nothing more than a bulwark against political power in the hands of “natives”, primarily to protect the interests of European settlers.Footnote ⁸¹

It is ironical to note that, while the pre-independence struggle was informed by the desire for Africans to have greater participation in government, the same was not entrenched in the Independence Constitution. It would be pretentious to suggest that the provisions relating to freedom from discrimination under section 82 of the constitution are sufficient to protect the right to participate in government.Footnote ⁸² Likewise, one would be gullible to believe that sections 34, 35 and 43, which regulate the election of members of Parliament and the registration of voters, guarantee this right. The only provision that comes close to guaranteeing the enjoyment of this right is section 75, which protects individuals from the deprivation of property.Footnote ⁸³ However, unlike article 13(3) of the African Charter, this provision is concerned more with guaranteeing the right to property than with ensuring equality of access to public property.

Under the prevailing state of affairs, one would definitely agree with Odinkalu's argument that the situation in post-colonial Africa necessitated a re-orientation of states away from the institutional infrastructure and attitudinal orientation inherited from the colonial period.Footnote ⁸⁴ This process, however, was never undertaken let alone achieved. In fact in some countries, such as Kenya, most of the archaic laws, institutions and attitudes that underwrote colonialism did not just survive independence, they prospered with it.

The consequences of failing to entrench the right to participate in government in Kenya's constitutional order have been severe. This is evidenced by the fact that, since independence, Kenyans have been subjected to political regimes that have sought to implement democracy and human rights within the context of violence, intimidation, corruption and a general lack of transparency and accountability. Such a context has encouraged continued plundering of public resources and abuse of state institutions. Again, the country has found it exceptionally difficult to manage the conflicts arising from its ethnic diversity. Indisputably, the country's multi-ethnicity, coupled with its weak constitutional framework, have contributed to its fluid national identities. This partly explains why ethnocentrism is one of the key challenges to the realization of national unity and integration. What follows is a detailed discussion of some of the issues highlighted here.

Socio-historical factors

A number of socio-historical factors have contributed to the undermining of the right to participate in government in Kenya. In the main, colonialism perpetuated and subsequently left behind an undesirable legacy on inter-communal interactions in the country, in that the notion of statehood was imposed on communities that historically lacked inter-communal coherence. By forcing ethnic communities that previously lived independently of each other to live together, the British colonizers gave no thought to the possibility of the emerging state being ethnically polarized.Footnote ⁸⁶

Further, through its policies that favoured the investment of resources only in high potential areas that had ample rainfall and fertile lands, colonialism spawned asymmetrical development in Kenya.Footnote ⁸⁷ The colonial government focused on developing infrastructure and social services in “productive” areas at the expense of the rest of the country, and this inequality remains largely unaddressed in the policies and practices of independent Kenya.Footnote ⁸⁸ Indeed, soon after independence, the government reiterated the colonial position that public resources would only be invested in areas where they would earn the highest return.Footnote ⁸⁹ Consequently, regional inequalities between Nairobi, the former “white highlands”, Coastal, Northeast and Western Provinces are still evident today. Similarly, the GDP per capita disparity between the various regions of the country is very wide, while about 45 per cent of the country's modern sector employment is concentrated in fewer than 15 towns.Footnote ⁹⁰

The resultant disconnection between the various ethnic communities and regions of the country has provided the ethno-regionalized basis for political and economic discrimination of some citizens. It is rather unfortunate that this trend has found support from a class of post-colonial political elite, who prefer it, both as a bargaining chip to bolster their political influence and as a tool to lock out of government their perceived opponents. Although successive post-colonial governments were expected to dispel the problems that had been evolved by the colonial legacy, this has gone largely unaddressed. For various reasons, the political class in successive governments opted to entertain and nurture these inequalities. It is therefore not surprising that the underlying regional imbalances and the attendant inter-ethnic inequalities easily inform the persistent struggles over the country's resources, such as land, and access to public services. This socio-historical reality has had a negative effect on democracy and human rights, in particular the realization of the right to participate in government.

Ethno-political factors

Since independence, Kenya's political system has demonstrated overt weaknesses and inherent inequities that have had significant ramifications for citizenship rights. First, ethnocentrism transpires throughout the country's political substratum. Secondly, because of vested ethnic interests, presidential power has been personalized. These two factors have posed certain challenges to the effective realization of the right to participate in government.

It is important to note that Kenya, like many other African countries, has been guilty of deliberately defining citizenship within the narrow prism of ethnic belonging. Consequently, one of the most acute problems the country has been facing is the endless struggle to integrate its different communities into a democratic modern nation, without compromising their respective ethnic identities. Generally, ethnocentrism has had manifold implications: it has encouraged the politicization and manipulation of ethnic identities to extreme measures; and it has led to the exclusion of some communities from government affairs.Footnote ⁹¹ A few illustrations will highlight the magnitude of these problems.

During the tenure of the country's first president, Jomo Kenyatta, a small elite group called the Kiambu Mafia dominated Kenya's politics, resulting in the emergence of a class of capitalists from his Kikuyu tribe.Footnote ⁹² This class enjoyed unlimited economic prosperity and political influence and repressed any resistance against it. As a result, other ethnic groups as well as many non-conforming members of the Kikuyu tribe were alienated from government affairs.Footnote ⁹³ Participation in government was somehow a preserve for those who either belonged to the president's tribe or were his pledged loyalists.

The situation took a dramatic turn for the worse when Daniel arap Moi ascended to the presidency after Kenyatta's demise. This could easily be understood, given that Kenyatta's loyalists sidelined even Moi (then the country's vice-president), because he belonged to a small tribe, the Kalenjin.Footnote ⁹⁴ Ironically, in his formative years as president, Moi posed as the possible “political Messiah” who would save the country from the curse and blemish of ethno-politics. In fact, that was one of his pledges when he took over the presidency. Towards this end, he banned all the subsisting ethnic-centred welfare associations, such as the Luo Union, the Gikuyu, Embu and Meru Association, and the Abaluhya Union.Footnote ⁹⁵ His pledge notwithstanding, Moi soon became so engrossed in suppressing his perceived opponents, that corruption, ethnicity and human rights became distant concerns as he began to centralize and personalize power.Footnote ⁹⁶ This he achieved through tactics such as populating the civil service and state-owned institutions with members of his tribe.Footnote ⁹⁷ He also criminalized competitive politics and criticism of his leadership.Footnote ⁹⁸

In order to secure the interests of their respective ethnic communities, both Kenyatta and Moi therefore resorted to political gerrymandering, which at best fettered the right to participate in government. One such way was to limit the country's democratic space by allowing only one political party, KANU, to operate freely. This party soon became the mama na baba [father and mother] of the nation, wielding the ultimate political authority in the land. Sadly though, KANU was under the effective control of the sitting president, who also sanctioned the appointment of its members and officials. In effect, there was no clear demarcation between party and state authority. Thus, to participate in government, in whatever capacity, one had to be a professed convert to political sycophancy. At the same time, political power was personalized through unilateral constitutional and legislative amendments. By 1991, for example, the country's constitution had been amended about 32 times in order to afford more comfort and power to the incumbent presidents, their tribe-mates and cronies. Among the amendments was the insertion of section 2A, which legally made Kenya a one party state until that provision was repealed in 1991.

Generally, Kenya's ethno-politics have led to the misplaced assumption that it is essential for one's ethnic community to win the presidency in order to have unrestricted access to state resources, office and services.Footnote ⁹⁹ Hence, governmental authority, particularly the presidency, is perceived, more or less, as the preserve of the person in office and his tribe-mates, and could therefore be abused without any serious repercussions. This explains why every tribe in the country covets the presidency, and why losing it is so costly and therefore unacceptable. It is also understandable why, since the re-introduction of multi-party politics in 1991, the country's political parties are mainly regional, ethnically based and poorly institutionalized. The nature and composition of the political parties founded since 1991 attest to this fact in that even the self-styled “national parties” have tribal or regional undercurrents.

It is disturbing to note that even the re-introduction of multi-party politics in the country did not fully ensure citizens' participation in government. When Kenya entered the multi-party era, there was an earnest expectation that the government would create an enabling environment for its citizens to exercise freely their constitutionally guaranteed rights. Contrary to this popular expectation, most of the 1990s saw a continuation of the un-democratic practices which emerged following independence. In the early 1990s, for example, the KANU government went as far as instigating ethnic-based violence in order to portray that a multi-party political system was not suitable for a multi-ethnic country like Kenya.Footnote ¹⁰⁰

It was during this period when “ethnic cleansing” occurred in many parts of the country, with the aim of expelling certain communities from areas believed to be the “native reserves” of other communities. This happened in, for example, the Rift Valley Province between 1991 and 1993 when the Kalenjin community attempted to expel other communities living in the area.Footnote ¹⁰¹ The same could be said of the violence reported in parts of Coast Province prior to and after the 1997 general elections. There is ample evidence that the 1992 and 1997 ethnic violence was politically motivated by the government.Footnote ¹⁰² Specifically, a report compiled by Amnesty International implicated certain pro-government politicians with the 1997 clashes in Coast Province.Footnote ¹⁰³

It may be argued that Kenya's third multi-party elections, held in December 2002, presented the best opportunity for realizing an ethnically integrated country. This is mainly because, for once, ethnicity was at its barest minimum, courtesy of the formation of an inter-ethnic party called the National Rainbow Coalition (NARC). This opportunity was nonetheless lost as NARC's promise to end ethnic divisions was forgotten the moment Kibaki was sworn in as the country's third president. Like his predecessors, Kibaki is roundly accused of perpetrating ethnic policies.Footnote ¹⁰⁴

It is rather unfortunate that the ethnic factor in Kenya's politics has often been dismissed, overlooked or considered secondary, although it is one of the staunchest challenges to citizens' participation in government. Rothchild rightly warned against such an attitude by emphasizing that “as long as observers cavalierly dismiss ethnicity as an irrational relic of the past, they will be unable to recognize its force and attraction in contemporary times”.Footnote ¹⁰⁵ True to Rothchild's words, the governance crisis in Kenya and the attendant undermining of democracy and human rights could not have reached their present high intensity if the underlying ethno-political factors had been resolved.

Socio-economic factors

Kenya has the largest economy in East Africa and the third largest in sub-Saharan Africa. The country's economic performance has, however, been below its potential.Footnote ¹⁰⁶ The country's poverty levels are escalating, as the number of poor increased from 12.5 million in 1997 to 15 million in 2005.Footnote ¹⁰⁷ An alarming 56 per cent of the population lives in absolute poverty. This has been attributed to a combination of factors, including natural calamities, corruption, deteriorating infrastructure, weak implementation capacity and low levels of donor funding.Footnote ¹⁰⁸ Poverty in the country is also quite structured, with certain regions being disproportionately affected due to political and historical reasons.Footnote ¹⁰⁹

From another perspective though, the country's economy displays some positive attributes, namely: reduced dependence on foreign aid, good domestic resource mobilization efforts and a vibrant agricultural export sector.Footnote ¹¹⁰ The government has also sought to expand the tax base via policies that, among other things, encourage investment, improve tax administration, and enhance the efficiency of financial markets and institutions.Footnote ¹¹¹

Despite noticeable progress in key socio-economic reforms, the country still faces many challenges which have negative implications on citizens' participation in government. These challenges concern, inter alia: improving the efficiency of public sector service delivery; building new infrastructure and rehabilitating what exists already; high unemployment rates especially among the youth; poverty eradication; maintaining sound economic policies; and implementing various structural reforms so as to reverse the slow economic growth rate. The country also lacks effective anti-corruption policies.

Kenya has had, and continues to have, a worrisome problem of corruption. Decades of endemic corruption have fundamentally deprived citizens of their right to participate in government. Corruption has exacerbated the country's socio-economic crisis to such a magnitude that the rules of fair play are either simply ignored or have been replaced with influence peddling and nepotism. This has eventually affected the competence, integrity and output of government. Moreover, it has entrenched socio-economic inequality as well as inequitable access to public resources and services among citizens.

Whereas the government has established the Kenya Anti-Corruption Commission and enacted the Anti-Corruption and Economic Crimes Act, there is a general lack of political will to end corruption in all spheres of society. In fact, serious corruption is becoming prolific in some government ministries, departments, corporations, the judiciary and even local authorities. This is not an attribute of good governance because corruption and related vices fail to ensure the most efficient utilization of resources in the promotion of development, the enhancement of citizen participation in government and accountability.Footnote ¹¹²

Another disturbing socio-economic issue currently affecting the country pertains to land allocation and distribution. Statistics indicate that more than half of the arable land in the country is in the hands of only 20 per cent of the population.Footnote ¹¹³ This is partly because the post-colonial land redistribution policy was deliberately designed to favour the ruling class and not the landless masses. With the aid of such a policy, politicians in successive governments use land to induce patronage and build political alliances.Footnote ¹¹⁴ Thus, much of the land has ended up in the hands of the political class, members of their families, friends and tribe-mates rather than the communities from which the colonialists had taken it.Footnote ¹¹⁵ A recent investigation on unfair allocation of land found that: “the practice of illegal allocations of land increased dramatically during the late 1980s and throughout the 1990s … and land was … granted for political reasons or [was] … simply subject to ‘outright plunder’ by a few people at the expense … of the public”.Footnote ¹¹⁶

The practice of illegal allocation and distribution of land has led to a general feeling of marginalization among some communities as well as the ethnicization of the land in question. While the constitution permits individuals to own land in any part of the country without any form of discrimination, this, in reality, has not been the case. Many areas outside the major cities and towns are ethno-geographically demarcated, a phenomenon that has led to the emergence of “ethnic reserves”. Besides being a source of corruption in terms of illegal or irregular land allocation, this phenomenon has also been tapped by politicians to instigate ethnic violence, especially during election campaigning periods.Footnote ¹¹⁷

Legislative factors

As argued earlier in this article, Kenya's legal system has been the government's handmaiden for undemocratic tendencies such as ethnic polarization, electoral malpractices and unbalanced access to public resources. The country still prides itself on a constitution drafted at independence in 1963 and a legal system aped from its former colonizer. Although the constitution came with a flowery package of guarantees, it failed to address certain crucial issues of national importance, which now pose a threat to good governance.Footnote ¹¹⁸ Some of the unresolved issues include: streamlining the three arms of government (executive, legislature and judiciary); land acquisition and distribution; reform of the electoral system; and improving ethnic integration.

Good governance is influenced by the existence of a sound democratic constitution that enables the government to manage the affairs of the state effectively, while at the same time empowering the citizenry to participate in government.Footnote ¹¹⁹ Unfortunately, Kenya's current constitution was written without much input from the citizens and, despite relentless efforts to amend it, there is consensus that the document is now outmoded.Footnote ¹²⁰ In fact, some of the amendments eventually undermined the legal sanctity of the document, rendering it more a powerful tool in the hands of the executive than an agreement between the government and its citizens. A closer look at some of its provisions would confirm this position.

The constitution empowers the president to be the head of state and commander-in-chief of the armed forces of the republic.Footnote ¹²¹ Additionally the president can hire and fire the vice-president and cabinet ministers,Footnote ¹²² enjoys immunity from criminal and civil proceedings,Footnote ¹²³ appoints permanent secretaries,Footnote ¹²⁴ the attorney-general,Footnote ¹²⁵ the chief justice and other judges,Footnote ¹²⁶ the controller and auditor general,Footnote ¹²⁷ commissioner of policeFootnote ¹²⁸ and chief of general staff of the armed forces of the republic.Footnote ¹²⁹ Moreover, he or she can summon, prorogue and dissolve Parliament at their whim,Footnote ¹³⁰ must assent to legislation before it becomes lawFootnote ¹³¹ and appoints members of the Electoral Commission.Footnote ¹³²

It is clear that, apart from vesting enormous powers in the presidency, the constitution also grants the institution overwhelming influence over the executive, judicial and legislative functions of government. As correctly emphasized in the African Peer Review Mechanism report on Kenya:

Democracy, strictly so called, has therefore not been tenable in Kenya, largely due to an “authoritarian constitution” that vests enormous powers in the presidency. Constitutional reform has been a central talking point for decades, but to date every attempt to realise this goal has been deliberately suppressed. The first major attempt towards comprehensive constitutional reforms was in 1998, when the Constitution of Kenya Review Act was enacted to provide the framework for substantial review.

This, however, did not materialize because the KANU government was not comfortable with the scope of the potential reforms. Most contentious were the proposals on devolution of powers through a federal system of government and on limiting the president's powers through the creation of the office of a prime minister with “executive powers”. The wrangling between the government and opposition parties saw the country going into the 2002 elections with no substantial legislative reforms. As could be expected, the constitutional review process is still hampered by divisive politics, animated by high levels of political posturing and discord.Footnote ¹³⁴ More often than not, national interests have been traded for the sectarian interests of politicians and other decision makers.Footnote ¹³⁵

The NARC government promised a new constitution within its first 100 days in office, but could not deliver due to persistent wrangling within the party. By 2002, the Constitution of Kenya Review Commission had compiled a draft constitution (popularly known as the Bomas Draft) from the views it collected from the public. The Bomas Draft provided for, among other things, the creation of the office of prime minister to share executive powers with the president. Due to disquiet from certain quarters, a parliamentary committee was constituted in 2004 to amend the draft. The new draft compiled by the committee (known as the Wako Draft) was not acceptable to some members of Parliament from the Liberal Democratic Party and KANU since it sought to retain the enormous powers of the president.

The Wako Draft was later subjected to a referendum in November 2005 but was rejected by an overwhelming majority. Apart than general dissatisfaction with the content of the document, ethno-politics once again determined the outcome of the vote. The Wako Draft gained widespread support mostly in those areas dominated by Kibaki's Kikuyu tribe. It was within this context of ethnic divisions and animosity, and the lack of legislative reforms, that the country's 2007 polls were conducted, the outcome of which nearly consigned the country to civil war.

The country was engrossed in months of civil unrest and political bickering following the declaration of Mwai Kibaki as the winner of the presidential elections conducted in December 2007.Footnote ¹³⁶ The wave of atrocities caught the eye of the international community, which stepped in to restore order and peace in the country. The African Union appointed a team of international experts to mediate over the crisis. At the outset, the mediators constituted the Kenya National Dialogue and Reconciliation team (KNDRT), comprising representatives of the wrangling political parties: the Orange Democratic Movement (ODM) and Party of National Unity (PNU).Footnote ¹³⁷

It came to the attention of the KNDRT that the 2007 post-election crisis was a culmination of both long-term and immediate causes. Behind the façade of alleged election fraud were decades-old tensions that instigated the national pandemonium. The long-term causes of the crisis therefore encompassed many unresolved issues, some dating back to the time the country attained her independence. Endemic failures in governance and the lack of appropriate legislative and institutional reforms were at the pinnacle of such unresolved issues.Footnote ¹³⁸

Indeed, the widespread violence experienced in Kenya in every election year could best be understood within the context of long-standing grievances and failures of governance that run deeper than electoral politics.Footnote ¹³⁹ Some citizens have therefore regarded elections as an opportunity to vent their anger and frustration over poor governance. On the other hand, some political elites in successive governments have regarded elections as an opportunity to settle scores with their opponents. Thus, although elections are conducted periodically, there has been no guarantee that they would be, and in most cases they have not been, free and fair. In the process, citizens have unabatedly been denied the enjoyment of many of their rights, including the right to participate in government. Such a scenario could easily be averted had the issue of comprehensive institutional and legislative reforms been taken seriously.

Other than allowing the constitutional reform process to be the forum for all Kenyans collectively to determine the destiny of their nation, politicians and other people with sectarian interests have always usurped the process to settle their scores. Through comprehensive constitutional and legislative reforms, sound democratic principles can be entrenched in a multi-ethnic country like Kenya. Ultimately, this will present every citizen with the opportunity to participate in government.