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CHAPTER 2

CONSTITUTIONAL FOUNDING OF THE KENYAN AND AFRICAN STATE

This Chapter may be cited as: Ben Sihanya (forthcoming 2021) “Constitutional founding of the

Kenyan and African state,” in Ben Sihanya (2021) Constitutional Democracy, Regulatory and

Administrative Law in Kenya and Africa Vol. 1: Presidency, Premier, Legislature, Judiciary,

Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring

& Prof Ben Sihanya Advocates, Nairobi & Siaya.

2.1 Constitutional Founding of the Kenyan and African State

This Chapter 2 argues that the constitutional founding of the Kenyan and African State, and

incipient statehood or nationhood, was based on three variables. First, constitutional or political

negotiation for independence. Second, militancy, including conquest, expedition, massacres,

assassinations,1 and even post-independence violence.2 And third, an appropriate combination of

constitutional negotiation and militancy or violence at independence and in the post-

independence period. The reconstruction of the Kenyan and African state and nationhood have

followed a similar trajectory in political economy and constitutional sociology.

I adopt an Afro-Kenyanist theory and methodology on statehood as well as the three main

components of nationhood and nation building: first, ethnic nationalism including positive or

moral ethnicity and negative tribalism. Second, civic or juridical nationalism. And third,

progressive territorial nationalism vis-à-vis retrogressive nationalism in transnational relations,

law and political economy. All these conceptualize, problematize and conceptualize ethnicity as

real, invented and imagined. I thus argue that Kenya African nationalism has three interrelated

characteristics: first, real. Second, invented. And third, imagined.3

2.2 Nomenclature and Conceptualization of the Kenyan and African state

“Kenya,” got that name in 1920 when it became a British Colony following complex social,

economic, political, social, technological, military, and juridical adventure, misadventure, and

related processes in statecraft and nation building.4

1 For example, Koitalel arap Samoei, Councillor Ambrose Ofafa, Tom Mbotela, and numerous post independence

assassinations. 2 The violence motif trope underscores state theory and praxis in the works of Karl Marx, Max Weber, Hans Kelsen,

Yash Ghai, Ben Nwabueze, Issa Shivji and Ben Sihanya. See also Chapter 1 of CODRALKA 1 on “Conceptualising

People, Sovereignty, Constitution, State, government, Society and Market in Kenya and Africa.” 3 See also Chapters 1 (on Conceptualising People, Sovereignty, Constitution, State, Government, Society and

Market in Kenya and Africa), and Chapter 5 (on Theory and Methodology of Comparative Constitutional and

Administrative Law in Kenya and Africa: Law and Sustainable Development) in Ben Sihanya (forthcoming 2021)

CODRALKA 1. 4 See laws declaring Kenya the East African Protectorate in 1895; and colony in 1920. ES Atieno Odhiambo (1940)

“The invention of Kenya,” 93, Decolonisation and Independence in Kenya, 1-3.

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The Kenyan and African state is about at least three key variables or phenomena. First, it is

primarily about the people. What was the composition or diversity of the population in 1895,

1920 (colony and protectorate), 1963 (independence)? What was the population size and

diversity in terms Africans, Whites, Indians and Arabs5 on these dates, and in 1920, 1948, 1962,

1969? (Preamble, Article 1...) Second, it is also about certain or ascertainable territory, borders

or boundaries. Third, it is about a constitutionally democratic6 and effective government (Art.

5).7 And fourth, capacity to transact in international relations (Article 4(1), 2(5), 2(6))….8

The Constitution is key in (re)constituting Kenya historically in terms of law, rules, principles,

policies and norms.

Who are the people within Kenyan territory or boundary? Kenyans beyond territory? (Who are

Kenyans, Kenyan citizens historically? Who can pass on citizenship?

2.2.1 How did Kenya become the East Africa Protectorate and Kenya Colony and

Protectorate?

“Kenya” was initially the British East African Protectorate from June 15, 1895 then Kenya

Colony and Protectorate from 1920.9 United Kingdom (UK) constitutional law, English

regulatory and administrative law, and English understanding of the law of nations (or

international law) were applied in constructing the protectorate and colony including the East

5 Relocate: Pre-school children sang, at independence: “*I …Kenya, Kenya…” Kanyaga nchi yako kwa nguvu na

raha, hili ni hakikisho la rais wetu, zamani tuliwekwa eti namba four, …. Sasa abautani tuko namba wani”… Maoni

ya jumla (2006) “Karibu Madaraka!” May 31, 2006, at https://msailimambo.wordpress.com/2006/05/31/siku-kuu-

ya-madaraka-i-hapa-tena/ (accessed February 22, 2021). 6 “Constitutionally democratic” is part of the Sihanya reconceptualisation of the constitution, state and government,

partly based on the Constitution of Kenya 2010, UN Charter, Universal Declaration on Human Rights (UDHR), as

well as United Nations (UN) and African Union (AU) instruments and popular understanding…. 7 See this Chapter, 1 of Ben Sihanya (2021) Constitutional Democracy, Regulatory and Administrative Law in

Kenya and Africa, Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and

Administrative Justice in Kenya, Sihanya Mentoring & Prof Ben Sihanya Advocates, Nairobi & Siaya

(CODRALKA 1) on the classical formal or (neo) liberal classification, what I call the Ghaian, Nwabuezean and

Shivjian typology, and Sihanyan reconceptualisation of the constate, state, government…; Chapter 3 of this book on

Theory and Methodology of Comparative Constitutional and Administrative Law in Kenya and Africa: Law in

Sustainable Development. See Articles 51, 2(5), (6) ….and 4(1) “Kenya is a Sovereign republic.” …. 8 This includes the exercise of external sovereignty that encompasses facilitating and protecting citizens abroad;

when they engage in international diplomacy…..cooperation, foreign policy……. See the Montevideo Convention

on the Rights and Duties of States, 1933; Vienna Convention on the Law of Treaties (VCLT) 1969, Vienna

Convention on Consular relations (VCCR), 1963, Vienna Convention on Diplomatic Relations (VCDR), 1963. Arts

2(5) (6), 4(1) of the Constitution of Kenya, 2010 and Chapter 3 (on Theory and Methodology of Comparative

Constitutional and Administrative Law in Kenya and Africa: Law and Sustainable Development). 9 See the legal instruments including East African-Order-in-Council, 1897 which evolved into sections of the

Judicature Act, 1967, Cap 8 (on sources of constitutional law in Kenya; Independence Constitution of Kenya

1963...what international law rules governed colony and protectorate status....? Nigeria was given its name by Lord

Frederick Lugard’s girlfriend (later wife), Dame Flora Shaw in 1898. See Chinua Achebe (2012) There was a

Country: A Personal History of Biafra, Penguin group, London, England; African Today, Nigeria at 100: A Nation

searching for its soul, Vol 20, No 04/05.

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African Order-in-Council 1897 which would be amended over the years to the current section 3

of the Judicature Act, 1967 (as amended). Section 3 of the Judicature Act, 1967 states: ….10

“3(1) The jurisdiction of the Supreme Court, the Court of Appeal, the High Court, the

Environment and Land Court, the Employment and Labour Relations Court and of all subordinate

courts shall be exercised in conformity with— (a) the Constitution; (b) subject thereto, all other

written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the

Schedule to this Act, modified in accordance with Part II of that Schedule; (c) subject thereto and

so far as those written laws do not extend or apply, the substance of the common law, the

doctrines of equity and the statutes of general application in force in England on the 12th August,

1897, and the procedure and practice observed in courts of justice in England at that date:”

Section 3 continues: “Provided that the said common law, doctrines of equity and statutes of general application shall

apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such

qualifications as those circumstances may render necessary; (2) The Supreme Court, the Court of

Appeal, the High Court, the Environment and Land Court, the Employment and Labour Relations

Court and all subordinate courts shall be guided by African customary law in civil cases in which

one or more of the parties is subject to it or affected by it, so far as it is applicable and is not

repugnant to justice and morality or inconsistent with any written law, and shall decide all such

cases according to substantial justice without undue regard to technicalities of procedure and

without undue delay.”11

But what is a colony? protectorate? dominion? suzerain? A colony is a country or an area that is

governed by people from another more powerful country.12 It is where a country is under full or

partial political control of a foreign power and is occupied by settlers of that power.13 On the

other hand, a protectorate is a dependent territory that has been granted local autonomy while

retaining the protection of a greater sovereign state.14 What of a dominion? A vassal state? A

suzerain state?15

10 Yash P. Ghai & J.P.W.B. McAuslan (1970, 2001) Public Law and Political Change in Kenya, OUP, Nairobi;

Robert Seidman (1969) “The Reception of English Law in Colonial Africa Revisited,” 2 E. Afr. L. Rev.

47…progressive aspects of the common law wERE not received in the colonies; and the best lawyers were retained

in England…. See also Yash Ghai (1986) “The Rule of law, Legitimacy, and Governance,” 14, International

Journal of the Sociology of Law, 179; …. 11 Section 3 of the Judicature Act, 1967 (as amended). Cf. Art. 2 of the Constitution of Kenya, 2010; s. 3 of the 1969

Constitution of Kenya…Clause 3A of the (Bomas) Draft Constitution of Kenya 2004…. 12 AS Hornsby (2010) Oxford Advanced Learner’s Dictionary, Oxford University Press… 13 How does a colony relate to a vassal state in the historical West African legions? 14 See Douglas Kiereini (2018) “How Kenya was both a British protectorate and colony at the same time,” Business

Daily, Nairobi, 16/8/2018, at https://www.businessdailyafrica.com/lifestyle/society/Kenya-was-both-a-British-

protectorate-and-colony/3405664-4715590-hi6fw6/index.html (accessed 27/6/2019). 15 One definition is that a suzerain state is one having control over another state that is internally autonomous.

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The Kenyan Colony comprised the inland territory.16 The protectorate comprised the ten-Mile or

Ten Kilometers Coastal Strip which was under the control of the Sultan of Zanzibar following

treaties signed in 1886, 1895 and 1920. In 1920, “Protectorate” only referred to the 16 km or 10

mile Coastal Strip. What was the “Kenyan” map as at 1895? 1902? 1920? 1926? 1963?17

Three major transitional and global processes have helped define Kenyan statehood and

nationhood. First, the scramble for Africa or the quest for spheres of influence in Africa through

the Berlin Conference (1884/85).18 Second, the economic, political, ideological, cultural, and

intellectual cold war between the west and the east. And third, the post Cold War dispensation

marked by competition for influence in Kenya and Africa by the US, UK, EU, China, Russia and

Japan.19

The formal contact between Europe and Kenya in terms of administration began after the Berlin

Conference of 1884 that was convened by Bismarck.20 This confirmed the quest for spheres of

influence commonly referred to as the “Scramble for Africa.”21 At first, Britain used the IBEAC

or IBEA Co., a chartered company,22 as the main instrument for penetrating East Africa and

consolidating British power.23 This charter gave British subjects in the East African Protectorate

immunity from prosecution and further empowered the subjects to impose taxes including

custom duties, make treaties, and act as the administrators of justice as well as the effective

overall government of the colony.24

16 Cf. The conquest state; the protectorate; the colony; dominion….constitutional development; Kenya under

colonialism: Constitutional contests on protectorate, colony… Rights and freedoms: life, liberty, land, labour, tax… 17 See annex…. 18 Who convened the Berlin Conference? The Berlin Conference was convened under the initiative of Portugal, and

chaired by Otto Von Bismarck… Who participated? Some of the countries that participated included Germany,

Great Britain, Spain, France, Portugal, Belgium and Italy. The US was invited and declined to attend and/or

participate. African participation? What were the objectives? What did it achieve? What dates? The conferences

used pencil in drawing lines to carve out Africa from inaccurate maps…They separated tribes, clans…See WR

Ochieng’… 19 Aggrey Mutambo (2019) “Russia follows old path in new scramble for a piece of the continent,” EastAfrican,

October 19, 2019, at https://www.theeastafrican.co.ke/tea/news/east-africa/russia-follows-old-path-in-new-scramble-

for-a-piece-of-the-continent-1429664 (accessed February 11, 2021) 20 Henry Louis Gates, Jr & Kwame Anthony Appiah (2010) “Encyclopedia of Africa,” Oxford University Press. 21 The British were interested in East and West Africa; Germans in South West Africa, French in West Africa., the

Portuguese in Angola and Mozambique. According to historian WR Ochieng, the imperial powers laid claim based

on an inaccurate map, and the land mass they were not sure about. The drew borders on an inaccurate map, using

pencils. That partly explains the location of some tribes in more than one territory, and the disproportionate sharing

of cross border resources like lakes, mountains, etc. 22 Chartered under.... Sir William Mackinnon with its headquarters being established in Mombasa. 23 Germany used German East Africa Company (GEACo). 24 Roland Oliver (March 1951) “Some Factors in the British Occupation of East Africa, 1884-1894,” 15 (1) Uganda

Journal, 49–64; Charles Okidi “background to Kenya’s framework on environmental law....” Bethwell A. Ogot &

R. S. Herring & D. W. Cohen (1979) “The construction of dominance: the strategies of selected Luo groups in

Uganda and Kenya,” in A. l. Salim (ed) (1984) State Formation in Eastern Africa, Heinemann, Nairobi, at 126-61.

(Selected papers from a Conference organised by the Department of History, University of Nairobi, held at Nakuru,

September 1979.

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There were problems with IBEA Co., especially inefficiency in business25 and incompetence in

political administration or constitutional governance.26

In 1895, the Imperial British East Africa Company (IBEACo) which was a commercial

association founded to develop African trade in the areas controlled by the British colonial

power, surrendered its management of the Sultan’s dominions.27 This paved way for the British

Government to take over. Britain declared (what would later become Kenya) an East African

Protectorate on June 15, 1895 with its headquarters in Mombasa. When were the headquarters

transferred to Machakos? Nairobi (or Enkare Nailobi)?28 In 1920, the East African Protectorate

was renamed the Kenya Colony and Protectorate.

What were the incidents and consequences of declaration of protectorate and colony over

Kenya? Taxes were imposed on the African population particularly the hut tax29 and poll tax.30

Colonial land alienation,31 labour regulation,32 and trade regulation33 were introduced.

Colonialism also delineated international (or territorial) and internal borders34 among African

peoples. The internal or intra-territorial borders established exclusive districts or zones.

Significantly, the borders prohibited or reduced migration among and within tribes, clusters, or

clans…..

2.3 Peopling Pre-colonial Kenya and Africa on the eve of Anglo-French and German

colonialism

Before British (especially English), French, German, Portuguese and Spanish colonization, the

Kenyan and African land mass consisted of largely a cephalous or decentralized groups.35 They

25 …. 26 …. 27 Douglas Kiereini, ibid. 28 Cf. B.A. Ogot & Madara Ogot (2020.) The History of Nairobi 1899-2012: From a Railway Camp and Supply

Depot to a World-Class African Metropolis, Anyange Press. 29 Attiya Waris (2007) “Taxation Without principles: A historical Analysis of the Kenyan taxation system,” Kenya

Law Review, 30 See Y.P. Ghai & J.P.W.B. McAuslan (1970, 2001) Public Law and Political Change in Kenya, OUP, Nairobi at

50-52. Cf definition or conceptualization of state: effective government and capacity in transnational transactions;

See also Ministry of East African Community and Regional Development, “History of Kenya” at

http://meac.go.ke/history-of-kenya/# (accessed 27/6/2019). 31 ….. 32 ….. 33 …. 34 See Bethwell Allan Ogot (2009) A History of the Luo-Speaking Peoples of Eastern Africa, Anyange Press. 35 See Annex…on map of Africa. European colonial territories…and dates of independence….

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were heterogeneous internally and externally.36 Only a few groups like the Wanga of Western

Kenya had fairly centralized or cephalous administration or governments in the form of chiefs.37

The British were largely centralized especially following the Norman Conquest of 1066.38 They

applied the “dual mandate”39 or “indirect rule”40 due to pragmatism and as a condescending

attitude to Kenyans and Africans. This local or home rule was neither decentralized nor

autochthonous. The British did at least three (3) things on centralisation that they were familiar

with. First, the British exaggerated centralization where it was limited as among the Wanga.41

Second, the British used the Wanga, Baganda and other tribes, clusters or clans to conquer or to

lord it over other tribes like Luo and Acholi, respectively.42 Third, the British constructed

chiefdoms (or ruothdoms)43 and kingdoms where none existed, as among the Luo and Igbo of

Nigeria.44

Remarkably, the following African states consisted of cephalous and acephalous communities as

indicated: Nigeria,45 Ghana,46 Uganda,47 Tanzania,48 the Democratic Republic of the Congo

(DRC),49 Cameroon,50 Zimbabwe,51 and South Africa.52

36 See John Lonsdale, “The conquest state…” in WR Ochieng’ (ed) A Modern History of Kenya; Lonsdale, ibid, in

E.S. Atieno Odhiambo & John Lonsdale (eds) (2003) Mau Mau and Nationalism: Authority, Arms, and Narration,

James Currey, Oxford, EAEP, Nairobi, Ohio UP, Athens. 37 Cf. British invention of (paramount) chiefs in Kenya, and Uganda Nigeria, Ghana, and other West African States

were legally different as they had Kingdoms like Mali, Songhai, Buganda, Bunyoro-Kitara, Toro... 38 Christopher Daniell (2003) From Norman Conquest to Magna Carta, London Publishers, UK; David Bates (1982)

Normandy Before 1066, Longman Publishers, London, 122-123. 39 …. Albert Cooke (1934) The Dual Mandate in British East Africa, Pacific Historical Review, 3(2), 130-141.

doi:10.2307/3633374. 40 …. 41 … Godwin Rapando Murunga (1998) “The evolution of Mumias settlement into an urban centre to circa 1940,”

Geography, at https://dumas.ccsd.cnrs.fr/dumas-01302363/document (accessed February 16, 2021). 42 Bethwell Allan Ogot (2009) A History of the Luo-Speaking Peoples of Eastern Africa, Anyange Press, Kisumu?

….See Annex on map of pre-colonial Kenyan tribes…and post colonial Kenyan tribes 43 See William R. Ochieng, William (1976) “The transformation of a Bantu settlement into a Luo ruothdom. A case

study of the evolution of the Yimbo community in Nyanza up to AD I900,” 6 Hadith, 44-64; William Robert

Ochieng (1975) A History of the Kadimo Chiefdom of Yimbo in Western Kenya, No. 2. East African Literature

Bureau. 44 See Toyin Falola and E.S. Atieno Odhiambo (eds) (2002) The Challenges of History and Leadership in Africa:

the Essays of Bethwell Alan Ogot, Africa World Press, Trenton, New Jersey & Asmara; Chinua Achebe (2012)

There was Country: A Personal History of Biafra, Penguin Books, New York, ibid. 45 to cite Prof Kenneth Dike....; JC Anene (2009) Southern Nigeria in Transition, 1885-1906,” in Theory and

Practice in a Colonial Protectorate, Cambridge University Press. The Igbo Nation in West Africa is regarded to be

an acephalous or egalitarian society. 46 Cite, among others, Asante, Akan; cf....Prof Adu Boahen, J.A. Ajayi, & Michael Tidy (1966) Topics in West

African History, Longman Publishers, London....etc…. 47 Cf. Buganda Kingdom… 48 Tanzania includes Mainland (Tanganyika) and the islands of Zanzibar and Pemba. 49 The Kingdom of Kongo, Kingdom of Ndongo... 50 The Kingdom of Bamum, Hausa, Fula, Baka.... 51 Southern Rhodesia up to independence in 1980.

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All Kenyan and African communities53 had forms of economic, political, technological54 and

socio-cultural organization that were closely related to the ecology,55 the climate and the

organization of their neighbours. Thus the following Kenyan tribes largely practised the

economic activities indicated after their names: Kikuyu (farmers); Kamba (long distance

traders); Luhya (farmers); Luo (agriculture, fisher folk); Kalenjin (pastoralists), Meru (farmers);

Kisii (farmers), MijiKenda and Coastals generally (traders…), and Maasai, Turkana, Samburu

and Somali (pastoralists).56

The various forms of leadership, administration, management and governance were organized

around age sets, special skills, talents, or gifts, and related to the relevant economic, political,

social and cultural activities.57 For instance, there were economic, political and religious or

spiritual leaders.58

2.4 Imposition of Colonial Law and Administration in Kenya and Africa59

In about 1890, Britain faced the question whether it could exercise sovereign authority, apply, its

laws, annex territory, ordinate land and impose taxes in a protectorate. The extant imperial law

was that Britain could only have such jurisdiction in colonies.60 But what were the differences in

52 Zulu, Xhosa, Sotho..... 53 Annex on list of the 42 (43? 45?), 75? 109? Kenyan tribes and sub-tribes…Also on composition of the population:

men, women, youth, elderly; citizens, foreigners…. 54 See Annex on technological map of Kenya-historical and contemporary… 55 The ecology includes and included the natural resource base such as land, water, flora, and fauna ..cf Charles O.

Okidi (2008) “Concept, function and structure of environmental law,” in C.O. Okidi, P. Kameri-Mbote, Migai

Akech (eds) Environmental Governance in Kenya: Implementing the Framework Law East African Educational

Publishers Ltd, Nairobi; Wilfred Nangena (2008) “Economic issues for environmental and resource management in

Kenya,” in CO Okidi, et al. (eds) Environmental Governance in Kenya: Implementing the Framework Law East

African Educational Publishers Ltd, Nairobi; H.W.O. Okoth-Ogendo (2008) “Managing the agrarian sector for

environmental sustainability,” C.O. Okidi, et al (eds.) Environmental Governance in Kenya: Implementing the

Framework Law East African Educational Publishers Ltd, Nairobi, 222-234. 56 On the economic, political, technological and cultural organization of Kenyan tribes, East Africa and Africa

historically, see William Ochieng & Robert Maxon (Eds.) (1992) An Economic History of Kenya, East African

Educational Publishers; Robert Maxon, An Economic History of Africa, XVI, 460., William Robert Ochieng

(ed) (1990) Themes in Kenyan History, Ohio University Press, Ohio, United States…. 57 Cf. village elders including jodong gweng’ (Luo), Kiama (Kikuyu), Njuri Ncheke (Meru); specialities including

spiritual and political or administrative leadership like Orkoiyot Nandi….; youth groups such as Maasai morans,

women groups,….. 58 The religious or spiritual leaders included medicine men and magicians, diviners, seers, etc. e.g. Orkoiyot of the

Nandi…..See David Anderson & D. Johnson (eds) (1995) Revealing Prophets: Prophecy in Eastern African

History, Journal of Religion in Africa, Vol 26(1) (this work was reviewed by Richard Gray in 1996); John S. Mbiti

(1991) Introduction to African Religion, Waveland Press, Illinois; John S. Mbiti (1969) African Religions and

Philosophy, Heinemann Educational Publishers, New Hampshire…. 59 [Details in 1st paras to be relocated]…. 60 ….

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African and international law among protectorate, dominion and colony?61 There had been

similar situations in Africa62 before Europe invaded.

Sovereignty is related to subjecting the people to English law; annexing or alienating their land;

and imposing tax on the people. 63

However, the pre 1890 position was revised to the effect that the British monarch could exercise

sovereignty whether in a colony, dominion or protectorate.64

There are three main issues on the imposition of colonial law in Kenya and Africa. First, what

factors weakened Kenyan and African tribes and (generally) predisposed them for colonization?

Should all Kenyan African ancestors be blamed for allowing or suffering colonialism?65 There

were natural disasters, civil wars, clan or succession disputes. For instance, the Maasai, the

century “Lords of East Africa,” were weakened from the last quarter of the 19th century by

droughts and disease which decimated their cattle – their socio-economic and cultural, livelihood

and infrastructure. There were also inter clan wars among the Purko, …. and other clans; and the

succession disputes between Lenana and Sendeyo, among others.66

Second, how was colonial law imposed? internalized and adapted?67

Third, what were the strengths and allure of the colonizing British, French and German

civilisation or culture law, education, religion, clothes… Education provided opportunity to read,

write and tackle arithmetic. It led to religious clerical vocational jobs. What did colonial

61 Okoth Ogendo (1991) Tenants of the Crown, African Centre for Technology Studies, ACTS Press; Okoth Ogendo

(1979) “The imposition of property law in Kenya,” in Harrel Bond (1979)(ed) The Imposition of Law, Academic

Press, New York, ibid, 147. 62 See, for instance, the practice among powerful Kingdoms in East Africa (especially Uganda), West, South and

Central Africa….. See… 63 Cf. Chapters 2, 3, and Chapter 4 of CODRALKA 1, debates on popular; state sovereignty; external and internal

sovereignty. The debate in ICC; in Munya case (County Government of Meru & Another v. District Land

Adjudication and Settlement Officer Tigania East Sub-County & 18 Others [2018] eKLR )…By sovereignty here we

mean, that right and power that a governing body in a state or county has over its polity without influence by

external powers. It is the right to self/internal government. 64 HWO Okoth-Ogendo (1991) Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya, ACTS

Press, African Centre for Technology Studies, Nairobi; Yash P. Ghai & J.P.W.B. McAuslan (1970) Public Law and

Political Change in Kenya, OUP, Nairobi (reprinted in 2001 with a preface)…. 65 See poet Charles Ford Khaminwa (1976) “A Letter to Leopold Sedar Senghor” in Jonathan Kariara and Ellen

Kitonga (eds) An Introduction to East African Poetry, Oxford University Press, Nairobi… See Senghorian

Negritude… Soyinka on Negritude and post colonialism… 66 See ….in David M. Anderson and Douglas H. Johnson (eds) (1995) Revealing Prophets: Prophecy in Eastern

African History, Ohio University Press, Ohio, US. Most western history books made the “arrogant claim” that they

discovered. Discover? East African tribes had lived near the lake and even named it Lake Sango or Lolwe. 67 See H.W.O Okoth Ogendo (1979) “The imposition of property law in Kenya,” in Harrel Bond (ed) The

Imposition of Law, Academic Press, New York, op. cit., 147…….

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Christianity teach?68 Colonial Christianity taught submission to divide British and civil

authorities. It taught ascetism and capitalism; happy are those who are poor, you will inherit the

Kingdom of God (the Bible was selectively Whiteman’s wisdom).69 Christianity as preached by

the missionaries had some liberating aspects, for instance validation of Osu untouchables among

the Igbo.70

In such a context, poet Charles Khaminwa criticizes the former Senegalese poet President

Leopold Sedar Senghor for romanticizing African traditions and memory. Senghor was pro-

French, politically and culturally, hence “near white accents….” Khaminwa writes:

“Do not remind me of things that are gone

Nor of the spendour that was in yesteryears;

Do not sing of my mother’s laughters

Nor of the sensual songs resounding through their tears;

Do not dream of the ancestral hearth

Nor of the piety of communicating ancients;

Do not wake the dead from their wakeful slumber

In the earth,

Nor delve into the base of glories gone:

But look to the unmended rafters of our bondage being.

Let Shaka alone,

And let Sundiata be,

And Samori

And Sumanguru;

Do not utter their immortal names,

For their greatness my enslavements shames;

Do not proclaim your blackness,

For who shall hear your near white accents?

Sing not of the beauty of the sons of Ham,

For this much I know, none can my pride harm

But tell me how to do,

Tell me how to be

Tell me how to become,

Dance to us with your actions,

And sing to us with your actions

That, seeing, we may blend

The noumenal

68 ES Atieno Odhiambo (1974) “The movement of ideas: A case study of intellectual responses to colonialism

among the Liganua peasants,” 6, Hadith, 165-85. 69 Cf. Max Weber, The Protestant that Ethic and the Spirit (or Rise) of Capitalism…. 70 Cf John S. Mbiti (1991) Introduction to African Religion, Waveland Press, Illinois. Africans are and were

“notoriously religious”……Religion was holistic and integrated into life. Traditional African Religion, African

Traditional Society (ATS) had no evangelists, nor reformers…. Chinua Achebe writes of the osu untouchables who

could not marry, for instance, the nurse Elara in Chinua Achebe (1961) Vol. 3, No Longer at Ease, East African

Publishers.

10

With the phenomenal”71

Until 1895 when the power of administration over the modern day Uganda was transferred to the

Foreign Office, IBEA Co. still administered the Uganda Protectorate.72

2.5 Kenya Territory and External Borders73

Article 5 of the Constitution of Kenya 2010 states: “Kenya consists of the territory and territorial

waters comprising Kenya on the effective date [27/8/2010], and any additional territory and

territorial waters as defined by an Act of Parliament.”74

How was Kenya constituted territorially, in terms of its land mass, frontiers, and international

borders and boundaries generally? How have boundary disputes with Kenya’s neighbours helped

constitute Kenya territorially, normatively and demographically?75

2.5.1 The Uganda and Kenya Railway: The Lunatic Express 1896-190176

Britain embarked on building the Uganda Railway from Mombasa in 1896 as a means of

securing control over the Suez Canal.77 Through the device of controlling the source of the Nile

(believed to be in Uganda), Britain hoped to control the Suez Canal and the shortest sea route to

the near East.78 The railway reached Enkare Nailobi in 1899. The construction paused before

embarking on the difficult terrain including the escarpment. The railway reached Port Florence

(Kisumu) in Uganda Protectorate in 1901.

71 See Khaminwa (1976) in “A Letter to Leopold Sedar Senghor,” op.cit….; cf. Okot p’Bitek Song of Lawino, Song

of Ocol…on African scholars…cf. Ali A. Mazrui (1990) “On Poet-Presidents and Philosopher-Kings,” Research in

African Literatures, Vol 21, No 2, Dictatorship and Oppression, 13-19. 72 ibid. What “treaties” did British agents sign in the East African Protectorate? What treaties did German agents

sign with African “chiefs” and leaders in Tanganyika? What was the role of Karl Peters? How did the German East

Africa Co. (GEACo) perform in Tanganyika? What was the Maji Maji (1904-07) war of national liberation about?

Who were its leaders? Cite constitutional and political historians and poets. 73 Annex…on “Kenyan” borders…1884 to 2020…. 74 Cf. … schedules to the Constitution of Kenya 1969; Constitution of Kenya; Montevideo Convention on the Rights

and Duties of States, 1933; UN Convention on the Law of the Sea, 1982, on Maritime borders… 75 Some of the boundary disputes relate to Sudan, Uganda (Up to Rift Valley, 1976; Migingo in L. Victory);

Somalia… 76 Cf. Standard Gauge Railway (SGR), Rift Valley Railways (RVR). SGR MGR debate and China debates 2013-

2019. i.e. Ethiopia….. David Ndii (2014) “Here’s how to give Kenyan value for cash,” Daily Nation, Nairobi, April

4, 2014, at https://www.nation.co.ke/oped/opinion/440808-2270984-2qmhls/index.html (accessed 13/2/2020); Dr

David Ndii (2014) “New railway is not value for money,” Daily Nation, Nairobi, February 14 2014, at

https://www.nation.co.ke/oped/opinion/New-railway-is-not-value-for-money-/440808-2207034-13re56w/index.html

(accessed 13/2/2020). 77 Controlling the Suez Canal was crucial to both the British and Europeans 78 Speke and Grant were “the first Europeans to see the source of the Nile” in 1856. That is related to the interests in

Uganda, and later East African Protectorate (Kenya). B.A. Ogot & W.R Ochieng (eds) (1995, 1996) Decolonisation

and Independence in Kenya, 1940-93, James Currey, London, EAEP, Nairobi, & Ohio UP, Athens.

11

2.5.2 The Kenya–Uganda Border and the Constitutional Construction of Kenya

Administering the railway was expensive and inconvenient given that it was under two different

protectorates at a time of limited administrative cooperation and communication. Moreover,

British tax payers were keen that the railway pays for itself.79

In 1902, the border between the Uganda Protectorate and East African Protectorate was moved

westwards to where it is today in order to place the railway under one administration and thereby

secure economic and political efficiency.

This partly explains the Kenya-Uganda dispute between Kenyatta 1 (Kamaliza or K+) and Amin

in 1976.80 President Idi Amin had claimed that what was formerly known as the Western and

Nyanza provinces in their entirety and some parts of the Rift Valley all the way up to Naivasha

and Lake Turkana (then Lake Rudolf) were initially Ugandan territory. And that the territory had

been transferred to Kenya in an agreement signed by the British colonial secretary Herbert

Asquith, for purposes of administration.81

The rift between Kenyatta and Amin was also fuelled by the Israeli incident in Entebbe. Israeli

nationals had been held hostage by Palestinian militia in Entebbe and Kenyatta (through the then

Attorney-General, Charles Njonjo and the then Minister of Agriculture Bruce Mackenzie) had

allowed the Israeli army to overfly Kenya to Entebbe and also to Jomo Kenyatta International

Airport, Nairobi to refuel….82

In the 2010s, Museveni made a claim on Migingo Island in Lake Victoria.83 This issue simmered

over the years with a lot of suffering for the Kenyans in that island.84 Yet the colonial records in

79 …Roger Fanworth (2021) “The Uganda Railway: The Gilded Years 1924-1928,” at

https://rogerfarnworth.com/category/railways-blog/uganda-and-kenya-railways/ (accessed February 16, 2021). 80 Daily Nation (2011) “When Kenya nearly went to war with Uganda,” Daily Nation, 22/10/2011, Nairobi, at

https://nation.africa/kenya/life-and-style/lifestyle/when-kenya-nearly-went-to-war-with-uganda-

787614?view=htmlamp (accessed October 7, 2020); Fred Oluoch (2013) “Kenya. Uganda on brink of war,” Daily

Nation, 8/9/2013, at https://nation.africa/kenya/life-and-style/dn2/kenya-uganda-on-brink-of-war-

892130?view=htmlamp (accessed October 8, 2020). 81 Idi Amin argued that some parts of Uganda had been transferred to Kenya in an agreement in 1902, and to Sudana

in an agreement signed in 1914. In his words, he said that “God was not a fool to have allocated this land to

Uganda,”… cf. Wafula Okumu (2010) “Resources and border disputes in Eastern Africa,” Journal of Eastern

African Studies… 82 Daily Nation (2019) “Kenyan fishermen say they suffer in the hands of Ugandan soldiers,” 12/8/2019, at

https://www.theeastafrican.co.ke/tea/news/east-africa/kenyan-fishermen-say-they-suffer-in-the-hands-of-ugandan-

soldiers-1424820?view=htmlamp (accessed October 7, 2020) 83 Response by Kenyatta II...Raila...According to Article 1 of the Montevideo Convention (1933), the state as a

person of international law should possess the following qualifications: (a) a permanent population; (b) a defined

territory; (c) government; and (d) capacity to enter into relations with the other states. See Chapters 1, 3, and 4 of

Ben Sihanya (forthcoming 2021) Constitutional Democracy, Regulatory and Administrative Law in Kenya and

Africa Vol. 1: Presidency, Bureaucracy and Administrative Justice in Kenya (Revised Teaching Notes and Research

Materials on Constitutional Law and Comparative Constitutional Law by Ben Sihanya 2004-2021, Sihanya

Mentoring and Prof Ben Sihanya Advocates; Ben Sihanya (forthcoming 2021) “Typology of Constitutions, States

and Governments in Kenya and Africa: Sovereignty, Constitutional Democracy and Revolutions in S. Africa,

12

Kampala, Nairobi and London are clear that Migingo is Kenya. Moreover, Uganda can only

dispute colonial borders raising the issues at the International Court of Justice (ICJ) or the United

Nations, not through military intervention, sabre rattling, or political rhetoric from President

Yoweri Museveni. Did this border problem simmer for so long because of internal ethnicization

of the state whereby President Kibaki and President Kenyatta 2 did not stop Museveni’s

aggressive expansionism against the Luo....

2.6 The 16 km Coastal Strip of Kenya

The coastal land questions are all or partly associated with the awarding of sovereign rights over

the (ten mile) sixteen (16) kilometre strip at the Coast to the Sultan by the British and Germans

who were fighting for the control of East Africa. The Sultan’s subject held private property

rights over the land and secluded the indigenous communities especially those who were not

Muslims and were not his subjects.85

At independence in 1963, the 16km Coastal Strip was transferred to Kenyan sovereignity

through an agreement among the Sultan Jamshid bin Abdullah of Zanzibar,86 the British Queen

Elizabeth II and Jomo Kenyatta. Kenyatta promoted the infringement of the indigenous coastal

people’s rights to land by taking sides with the British Government and the Sultan and later

allocating part of the land to his family, cronies and his Kikuyu co ethnic generally.

The coastal land problem has also been historically complicated by the Mazrui land claims…87

As recorded by Karuti Kanyinga:

“At the time of transition to independence, the British government entered into a pre-

independence agreement with the Kenyatta administration and the Sultan regarding control of

land in Mwambao. Kenyatta conceded to the Sultan’s demands for recognition of private land

rights on the Coast and promised to adjudicate and register such rights where they were not

adjudicated, notwithstanding the negated land rights of the indigenous groups. Both the

agreement and negotiations over independence concluded the process of creating the squatter

Nigeria, Egypt, USA, UK and Germany,” forthcoming as chapter 3 and 4 in Ben Sihanya (forthcoming 2021)

Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol. 1: Presidency,

Bureaucracy and Administrative Justice in Kenya … 84 Robert Omollo (2020) “Fisherfolk suffer as Lake Victoria water level rises,” Star, May 28, 2020, Nairobi, at

https://www.the-star.co.ke/news/big-read/2020-05-28-fisherfolk-suffer-as-lake-victoria-water-level-rises/ (accessed

February 12, 2021) 85 Who were the Sultans of Zanzibar from the mid-19th century to 1963? Sultan Majid bin Said (1856-1870),

Barghash bin Said (1870-1888), Khalifa bin Said (1888-1890), Ali bin Said (1890-1893), Hamid bin Thuwayni

(1893-1896), Khalid bin Barghash (August 25, 1896-August 27, 1896), Hamoud bin Mohammed (August 27, 1896-

July 18, 1902), Ali bin Hamud (1902-1911), Khalifa bin Harub (1911-1960), Sultan Abdullah bin Khalifa (1960-

July 1, 1963). See … A. Elkholy, (2016) “Sultanate of Zanzibar (1856–1964),” 2016, March 27, at

https://www.blackpast.org/global-african-history/sultanate-zanzibar-1856-1964/ (accessed February 16, 2021). 86 Zanzibar was granted independence by the UK in December 1963 and became a constitutional monarchy under

Sultan Jamshid bin Abdullah. He was overthrown a month later during the Zanzibar revolution 1964. 87 See Mazrui Lands Trust Act, (Cap 289) of 1914.

13

phenomenon: they transformed the Mijikenda into squatters or tenants of the Arabs and the

Swahili landowners.”88

Jomo Kenyatta complicated the already complex coastal land question. There are at least four

permutations or nuances to the coastal land question: Lamu and Mpeketoni, Taita Taveta, Kwale,

and the Mombasa and beach land or sea front generally.

First, Jomo Kenyatta facilitated the settlement of Mpeketoni (or Mpe katoni, give him or her the

carton in Swahili?) by the Kikuyu in the Kenyatta Settlement Scheme. Second, in Taita Taveta,

Kenyatta acquired large chunks of land that measured at least 30, 000 acres in 2013.89 And in

spite of massive landlessness among the Taita where a large population live as squatters or

spontaneous settlers in their ancestral land.

Third, in Mombasa and at seafront generally long serving Coast Provincial Commissioner (PC)

Eliud Mahihu, a Kikuyu and Kenyatta crony facilitated the allocation of land to the Kenyatta

Family and Kikuyus.90 Indeed the only “public” beaches are appropriately named Kenyatta

Beach and Mama Ngina Water Front.91 Of course some of the initial beneficiaries sold the beach

plots.92 President Daniel arap Moi, President Mwai Kibaki, and President Uhuru Kenyatta II

followed the legacy of President Jomo Kenyatta in allocating or retaining the Kikuyu tribal

domination over coastal land and business or economic opportunity….93 These and other

injustices have gave rise to the quest for secession or devolution.94

2.7 Kenya-Somalia and Kenya-Ethiopia Border 1926, 1963, 2019, 2020 and Beyond

The creation of the boundary between Kenya and Ethiopia was completed in 1903. In 1926, most

of the present North Eastern counties or region (formerly North Eastern Province (NEP)) were

brought under Kenya.95 It was previously known as the Northern Frontier District (NFD).96 This

88 Karuti Kanyinga (2000) “Politics and struggles for access to land: Grants from above and squatters in coastal

Kenya,” Institute for Development Studies, University of Nairobi, at

https://learning.uonbi.ac.ke/courses/GPR203_001/document/Property_Law_GPR216-

September,_2014/Articles/Karuti_squatters.pdf (accessed 14/10/19). 89 Ibid. 90 See John Kamau (2015) “Eliud Mahihu: Powerful Coast PC who used the beach and connections to mint

millions,” Daily Nation, Nairobi, October 11, 2015, at https://www.nation.co.ke/oped/opinion/Powerful-Coast-PC-

who-used-connections-to-mint-millions/440808-2907916-ms78i9z/index.html (accessed 13/2/2020). 91 It used to be called Mama Ngina Drive… Ibid. 92 …See also The Andrew Mathai (Parliamentary) Select Committee on the Coastal Strip…; John Kamau (2019)

“Mathai vs Maathai: Politics, business and eventual divorce,” Sunday Nation, Nairobi, September 22, 2019, at

https://nation.africa/kenya/news/mathai-vs-maathai-politics-business-and-eventful-divorce-206142 (accessed

October 8, 2020). 93 These include Garissa, Wajir, and Mandera Counties (formerly districts). 94 Jumwa Gandi (2019) Devolution and Secession in Coastal Counties in Kenya, Biafra and Africa, University of

Nairobi Law School LLB Research Paper. 95 The Kenya-Somali border war was derogatorily and inaccurately called “shifta” war in the 1960s. There has been

a border dispute between Kenya and Somalia over whether a straight line should be used or a diagonal line in

demarcating the over 100,000 square kilometres disputed area or sea boundary between the two

countries........Discuss the claims, the response.........This dispute was submitted to the International Court of Justice

14

territory was carved out of the Jubaland region of present-day southern Somalia during the

colonial period.97

There have been a series of disputes regarding the Kenya-Somalia boarder since the pre-colonial

era. The issue was revisited in 2009 when the two Governments signed a memorandum of

understanding (MOU) that recognized Kenya’s claim under international law, but the MoU was

later rejected by the Somalia Parliament.98

The dispute intensified in August 2014 when Somalia sued Kenya at the International Court of

Justice for unlawful operations in her alleged maritime territory.99 The disputed water is a

triangular patch created by projecting the Kenya-Somali border eastwards. It measures about

100, 000 square kilometers.100

In October 2015, Kenya challenged the jurisdiction of the International Court of Justice (ICJ) at

he Hague to hear the case as well as its admissibility. The ICJ then held the first hearing on

September 19 to September 20, 2016 of Kenya’s petition. In February 2017, it quashed Kenya’s

plea, affirming its jurisdiction to hear the case. In December 2018, Kenya filed a Counter-

Memorial, a response against Somalia’s claims. As at this writing in 2019, the disputes is still

pending before ICJ, with strained diplomatic relations between the two countries.101 In 2019, a

(ICJ) in 2014… The ICJ pushed the oral proceedings to March 2021 due to the coronavirus pandemic, which

affected the initially planned hearing son June 8, 2020; Ken Opala (2019) “How Kenya bungled Somalia border

talk,” Daily Nation, Nairobi, September 30, 2019, at https://www.nation.co.ke/news/africa/How-Kenyan-bungled-

Somalia-border-talks/1066-5292066-e00p7yz/index.html (accessed 13/2/2020); – early October 2019…Standard

weekend of 12/10/19. This is related to the practice in the A-G’s office and other Government offices of only

engaging external lawyers who were tribally and politically affiliated….Okiya Omtata Okoiti brought a case on

this……See Maureen Kakah (2019) “Okiya Omtatah sues over Uhuru parastatal jobs list,” Business Daily, Nairobi,

February 11, 2019, at https://www.businessdailyafrica.com/bd/news/okiya-omtatah-sues-over-uhuru-parastatal-jobs-

list-2238296 (accessed February 16, 2021). 96 ….Hannah Whittaker (2012) “Forced villagization during the shifta conflict in Kenya, ca. 1963-1968,”

International Journal of African Historical Studies, 45(3). 97 See Thembisa Fakude (2015) “Can Kenya avoid a Sectarian Conflict?” Al Jazeera Centre for Studies, …, at

https://studies.aljazeera.net/en/reports/2015/05/2015514124231134280.html (accessed October 28, 2020);

.https://idis.uonbi.ac.ke/sites/default/files/chss/idis/idis/AN%20ANALYSIS%20OF%20THE%20GARRE%20AND

%20MURULLE%20INTER-

CLAN%20CONFLICTS%20IN%20MANDERA%20DISTRICT%20IN%20KENYA.pdf 98 John Kamau (2019) “Colonial deal and oil factor in Kenya-Somali boarder row,” Sunday Review, 30/6/019, at 29;

Sam Kiplagat (2019) “Group wants Kenya to pull out of maritime case,” Sunday Review, 30/6/2019, at 29. 99 On pacific settlement of disputes, see UN Charter 1945, Statute of the ICJ…. AU Constitutive Acts… 100 Japheth Ogila (2019) “Inside the Kenya-Somalia dispute over maritime territory,” Standard Digital, 18/2/2019, at

https://www.standardmedia.co.ke/article/2001313491/how-the-kenya-somalia-maritime-territorial-disputes-started

(accessed 2/7/2019). See annex...on the territory disputes between Kenya and her neighbours since independence in

1963. 101 Ken Opala (2019) “How Kenya bungled Somalia border talk,” Daily Nation, Nairobi, September 30, 2019, at

https://www.nation.co.ke/news/africa/How-Kenyan-bungled-Somalia-border-talks/1066-5292066-

e00p7yz/index.html (accessed 13/2/2020); and Standard weekend of 12 and 13 October 2019…… There are claims

that Somalia was keen on a diplomatic and political solution, but the A-G’s and Foreign Affairs office were not

15

group of Kenyans went to court to have the government compelled not to participate in the case

at ICJ. They argued that the case may lead to alteration of Kenya’s territory without a

referendum as required by the Constitution.102 In their view, the matter should be solved

amicably.103

2.8 Kenya under colonialism

The main impact of colonial status was the loss of sovereignty by the Kenyan people and

territory.

What did it mean for Kenya to be colony in the period? (1895-1920, 1920-1963and 1895-1963

generally?): economic, political social, cultural, technological and environmental?

2.8.1 Loss of Kenyan people’s sovereignty, dignity and self determination

Significantly, the people of Kenya had rights, liberties, and freedoms as well as duties or

objectives. The British now had responsibility for administration and for protecting all within the

colony. This included Africans and Arabs who were also “subjects” of the crown; British

citizens; other settlers as well as Indians and other immigrants.104 In transnational or international

law the British had the responsibility of representing Kenya’s interests, for instance, through

defence or the borders, trade, sporting activities, and treaties. But the British focused on claiming

and enjoying liberties, rights and privileges…..

The colonial administration in Kenya faced discontent due to threats to rights and freedoms of

the African majority, and especially life, liberty, land and related property interests.105

2.8.2 Life, Security related human rights in colonial Kenya

Kenyans lost lives and limbs in colonial Kenya even though the applicable English, European,

universal and even colonial law protected the right to life and security. Kenyans were killed on a

forthcoming. There are claims that some Kenyan officials discovered that they could benefit from a KES 3B

litigation fund. 102 Art. 255 Constitution of Kenya 2010 103 Cf. Sam Kiplagat (2019) “20 seek to bar Kenya from Somalia dispute,” Business Daily, Nairobi, 18/10/19, at

https://businessdailyafrica.com/economy/20-seek-to-bar-Kenya-from-Somalia-dispute/39446234-5315400-

13q8355/index.html ; Sam Kiplagat (2019) “Kenya: Group seeks to bar Kenya from Somalia dispute,” Daily

Nation, 19/10/2019, at https://www.nation.co.ke/news/20-seek-to-bar-Kenya-from-Somalia-dispute/1056-5317106-

h1a2xcz/index.html (accessed October 9, 2020) See Somalia v. Kenya; Mohamed Sheikh Nor (2021) “Somalia and

Kenya’s diplomatic disputes create collateral damage,” Africa Report, January 18, 2021, at

https://www.theafricareport.com/59029/somalia-and-kenyas-diplomatic-disputes-create-collateral-damage/

(accessed February 12, 2021). 104 Ghai and McAuslan (1970) Public Law and Political Change in Kenya…; Jagjit Singh (1971) “Portrait of an

Asian as an East African,” in David Cook and David Rubadiri (ed) Poems from Eats Africa, London, Heinemann. 105 Discuss poll tax, hut tax.......

16

whim by the “masters.”106 Numerous Kenyans died in British wars including conquest

expeditions,107 World War I,108 World War II,109 in the Mau Mau rebellion.110

2.8.3 Liberty and movement in colonial Kenya

Personal liberty was severely constrained in colonial Kenya.

Freedom of conscience, opinion, freedom of expression, freedom of religion,111 freedom of

association, freedom of assembly, freedom of movement….

Some of the draconian regulations governed kipande;112 passes,113 labour and even created

reserves for Africans. There were exclusive European or “White Highlands,” Asian quotas

(Southlands) for settlement, business, Asians banned or restrained from accessing agricultural

land. Business premises were also segregated…..

2.8.4 Taxation in colonial Kenya

There were also concerns regarding taxation. The colonial government imposed tax on Africans

who were insufficiently represented if at all in the Colonial Government. They were neither

consulted before the imposition of such taxes and at the same time, their interests were not

served when the funds collected were used by the Government. What was the justification for

taxation? Revenue collection to pay for services as a measure of civic responsibility; to entice

Africans to be employed by whites….

What were the main taxes in colonial Kenya? Poll and hut taxes… meaning? What was the

currency in which taxes were paid during the various phases of the colonial period?

How did Africans respond to taxation? Through evasion? Avoidance?114

What were the methods?

106 What were the taxation challenges? Contended peasants were not interested in working for anybody, let alone

Whites…. Some proudly argued: No body opens my gate… See Elisha Stephen Atieno-Odhiambo (2002)

“Hegemonic enterprises and instrumentalities of survival: Ethnicity and democracy in Kenya,” 61.2 African Studies,

223-249; John Lonsdale (1992) “The moral economy of Mau Mau: Wealth, poverty and civic virtue in Kikuyu

political thought,” in Unhappy Valley: Conflict in Kenya and Africa, Vol. 2. Violence and Ethnicity, Eastern African

Studies, 315-504, (ed) Bruce Berman and John Lonsdale, Ohio University Press, 1992. 107 These included the 1899 killing of Luos during the Uyoma-Sakwa-Seme conquests… 108 July 28, 1914 - November 11, 1918… 109 September 1, 1939- September 2, 1945… 110 See also Chapter 2… below. 111 Article 32 Constitution of Kenya, 2010… 112 What was Kipande? form? Its role in colour bar (only for Africans), freedom of movement, (zones, reserve,

resaf… cf. visa, passport… CMG and CMG’s wife… reasons to travel…) labour… 113 Nyatiti on passes to go to Nairobi…. 114 See Ochieng & Ogot....destroying houses, hiding in the lake, on trees.....

17

2.8.5 Labour in Colonial Kenya

Kenya consisted of largely contended peasants.115 The British thus introduced inducement for

contract labour, forced labour, taxes as incentives, criminalized labour relations….116

“Nyanza”, “Western” and “Eastern” counties which comprise mainly the Luo, Luhya, Kisii and

Kamba were converted into labour reserves or camps and people were forcibly recruited to work

for the White settlers like Lord “Dalmia” (Delamere), Lord Egerton, Fr Egerton Castle, Njoro….

These and other Kenya Africans were also employed in the two worlds was and during the Mau

Mau revolt…. Then the British called even 50 year old African men house boy, shamba boy….

following Albert Schweitzer’s racist comment that “the African may be my brother but younger

by 400 years…” or that African grownups were like 14 year old Brits?117 Joseph John Kamotho

could say that some people were only cooks and watchmen… Thus, contented peasants were

turned into proletariats.118

Significantly, the colonial Government was extracting economy’s resources, exploiting labour,

and oppressing Kenyans politically. It denied Africans freedoms and liberties including

participation or representation. There was poor governance….

2.8.6 The colonial land question in Kenya

The British continued to alienate land and changed land tenure and land law to especially in

1902, 1904, 1908, 1915, 1930, 1938 when a distinction between the Crown land that private

titles could be issued against, and the native reserves for Africans, was made…. To what effect?

They introduced alien concepts like rights, bona vacantia, terra nullius, tenants at will of the

Crown….119 Police powers eminent domain…

115 ESAO….Nyong’o…Apolo Njonjo…… 116 Bruce Berman (1992) Control and Crisis in Colonial Kenya: The Dialectic of Domination, East African

Publishers; Bruce Berman and John Lonsdale (1992) Unhappy Valley: Conflict in Kenya & Africa, Vol. 1, Ohio

University Press, Ohio, US. 117 The Delamare dynasty has been economically powerful into the 2010s. 118 Elisha S. Atieno-Odhiambo (1972) “The Rise and Decline of the Kenya Peasant, 1888-1922,” 9.5 East Africa

Journal, 11-15; Elisha Stephen Atieno-Odhiambo (2002) “Hegemonic enterprises and instrumentalities of survival:

Ethnicity and democracy in Kenya,” 61.2, African Studies, 223-249; Elisha Stephen Atieno-Odhiambo (1987)

“Democracy and the Ideology of Order in Kenya,” The political economy of Kenya, 177-201.

the rise, decline, ...of the peasantry in Kenya, Central, Nyanza, Rift Valley, Coast. Different peasantries? Middle

peasantry? See Peter Anyang’ Nyong’o (1981) “The development of a middle peasantry in Nyanza,” 8.20, Review of

African Political Economy, 108-120; Mukaru D. Ng'ang'a (1981) “What is happening to the Kenyan

peasantry?” 8.20, Review of African Political Economy, 7-16; Gavin N. Kitching (1980) Class and Economic

Change in Kenya: The Making of an African Petite Bourgeoisie 1905-1970, Yale University Press, Connecticut, US.

What did forced labour mean to British and Kenyan communities? 119 Isaka Wainaina wa Gathomo & Another v. Murito wa Indagara & Others, Colony and Protectorate of Kenya,

Law Reports, Vol. IX, Part II (1923), 102. It was held that where natives occupied Crown Land, they became tenants

at will of the Crown. …

18

Then African political and economy process led to agrarian reforms, especially under the Sir

Morris Carter Land Commission, 1934, The RJM Swynnerton Plan 1954…. What was the East

African Royal Commission about?120

2.8.6.1 Anglo-Maasai Land Agreements 1904, 1911

The British alienation of land and changes to land tenure law, land and agrarian law has dire

consequences among the Maasai, Coastals, Kalenjin, Kikuyu and other Kenya people. In 1904

and 1911 the British signed agreements with the Maasai, regarding the alienation of Maasai land

and movement of the Maasai to the Laikipia area.121 Discuss – Ole Njogo case Lenana

represented the Maasai in the agreement. Did he have capacity? Duration of the agreement?

Consideration?122 What was the quid pro quo? Conditionally? Dispute resolution?

The Maasai lost land and suffered health, ecological, economic, social and cultural problems and

constraints as a result of the disruption.123 The Maasai land question was a major issue at the

Lancaster House conference (1960-63)124 and at the Bomas of Kenya Constitutional Review

negotiations (2002-2005)125… In 2004, Maasai demonstrated in Laikipia, demanding lost land on

the centenary of the first Anglo-Maasai agreement…. The Kibaki administration through Land

Minister Amos Kimunya and security agencies beat up the Maasai.126…The black and a few

White settlers had replaced the original White settlers….127

120 See Chapter 4 on Constitutional Values, Principles, Policies and Politics in Kenya and Africa: Agency and

Structure 121To discuss case, parties, offer, consideration,.....See W.T.W. Morgan (1960) “The White Highlands of Kenya,”

Vol.129, No.2, The Geographical Journal. 122 See issues arising from Anglo-Maasai “treaties” (sic: agreements) of 1904 and 1911, at

http://equalinrights.pbworks.com/f/Write+up+on+Anglo+Maasai+Treaties.pdf (accessed 3/6/2014). See also this

link on the same issues, at

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCEQFjAA&url=http%3A%2F%2

Fwww2.ohchr.org%2Fenglish%2Fissues%2Findigenous%2Fdocs%2Ftreaties%2Fbp7.doc&ei=2ZGPU-

bhIbCV7AaWhoCIDQ&usg=AFQjCNEsNfhVGsYX6rJRtBdypyg6yssrMQ&bvm=bv.68235269,d.ZGU&cad=rja

www.google.com

www.google.com. Why does Okoth Ogendo refer to them as “treaties,” in H.W. Okoth-Ogendo (1984)

“Development and the legal process in Kenya: An analysis of the role of law in rural development

administration,” International Journal of the Sociology of Law….. 123 L. Hughes (2006a) Moving the Maasai: A Colonial Misadventure. Basingstoke, UK: Palgrave. 124 …Lotte Hughes (2005) “Malice in Maasailand: The Historical Roots of Current Political Struggles,” Ferguson

Centre for African and Asian Studies, Open University, UK, at

https://www.mpl.ird.fr/colloque_foncier/Communications/PDF/Hughes.pdf (accessed February 16, 2021). 125 … Cultural Survival (2020) “Maasai Wary of Draft Constitution Backed by Government,” at

https://www.culturalsurvival.org/news/maasai-wary-draft-constitution-backed-government (accessed February 16,

2021). 126 … Marc Lacey (2004) “Kenya Repulses Land Grabs Akin to Those in Zimbabwe,” New York Times Service,

Nairobi, September 5, 2004, at http://globalag.igc.org/armedconflict/countryreports/africa/landgrabs.htm (accessed

February 16, 2021). 127 …Ibid.

19

The Maasai land question would re-emerge decades later, as seen in the Maasai protests in 2013

in Narok against further encroachment on their land. The rate of land grabbing in Kajiado and

Narok will have far reaching implications. Remarkably, the Kajiado County Government

launched a new land policy seen as a move to protect the county from invaders.128 The Maasai in

the future may constitute the economic and political minority in the only two counties that were

largely Maasai and this may result in the Maasai being unrepresented or under-represented in the

elective posts of the state.129 This is also the case in Lamu County where the Kikuyu have a large

population and dominate economically and politically.

In primary school, we had a song during football matches: “Lenana, Lenana, Agreementa; there

was a young Maasai, Agreementa; 1940, Agreementa.…”130

2.8.6.2 The lost Kalenjin lands in colonial and post colonial Kenya

The Kalenjin, the Maasai, Kikuyu and coastal continued to lose land.131

The Kalenjin land especially the Nandi and Kipsigis land question is largely traceable to British

colonialism. The British introduced a new system of land tenure and administration among the

Kalenjins. …These partly subsequently led to the declaration by Prime Minister Jomo Kenyatta

in 1963 that the land of Kenya belonged to all Kenyans and that all citizens had rights to live

anywhere.132

Kalenjin have argued that they lost a lot of land in the Rift Valley to the Kikuyus before and after

independence. Kenyatta and the outgoing British Government adopted at least four strategies and

tactics to settle the Kikuyu in the Rift Valley, and especially Kalenjin land. First, the British

persuaded Moi, a Kalenjin nationalist and later leader of the Kenya African Democratic Union

(KADU) to work with Kenyatta as part of the land transfer and Kikuyu and White settlement.133

128 See County Government Launches New Land Policy, at https://www.kajiado.go.ke/county-government-launches-

new-land-policy/ (accessed 7/9/2015). 129 Ahmednasir Abdulahi (2014) “Maasai risk been driven from their grazing lands,” Sunday Nation, March 29,

2014, at http://mobile.nation.co.ke/blogs/Maasai-Land-Grazing-Narok-Kajiado/-/1949942/2262278/-/format/xhtml/-

/k17glw/-/index.html (accessed 3/6/2014). 130 … 131 The lost Kalenjin lands in colonial Kenya: Discuss. The lost Kikuyu land in colonial Kenya: Discuss 132 A running theme has always been that while this is constitutionally and historically supported, how one acquires

the land is crucial. Moreover, Kenyans have argued that Kiambu, Murang’a, Nyeri, Nyandarua, and Kirinyaga

should be equally available for non-Kikuyu settlements. 133 See Andrew Morton (1998) Moi: The Making of an African Statesman, Michael O’Mara Books. See also

Nyambega Gisesa (2019) “Plotting the Moi succession: Intrigue, betrayal and tears,” Daily Nation, 12/10/19, at

https://nation.africa/kenya/news/politics/plotting-the-moi-succession-intrigue-betrayal-and-tears-212544 (accessed

October 8, 2020); story on Dr Sally Kosgei quoting Moi as seeking protection through President George W. Bush in

2002 in the context of his planned retirement, considering that he had agreed to work with Kenyatta at a difficult

time? To address difficult issues?

20

Second, the British and Kenyatta negotiated loans from the British Government and the World

Bank to buy back the settler farms in the “White Highlands.”134 Third, the Kenyatta Government

allocated of most of the land to Kikuyus who had been deprived of their land through at least

three maneuvers. First, through Mau Mau pogroms. Second, through land adjudication,

consolidation and registration following the Swynnerton Plan in 1954.135 And third, through

acquisition of Kikuyu land by Kenyatta and the Kikuyu oligarchs, plutocrats, arch acquirers or

Kenyatta affiliates or the big boys or 15 families of Kikuyu.136

Fourth, the Kikuyu bought land through Government subsidised land buying companies through

patronage by Kenyatta and Kikuyu politicians, business and bureaucratic leaders in Central

Kenya and in the “Kikuyu and diaspora,”137 especially the whole Highlands.. In the meantime,

Rift Valley also attracted other tribes as settlers or workers, including the Kisii, Luhya and Luo.

As a result, Kalenjins have had major conflicts related to land, opportunity and other socio-

economic resources with other tribes living in the Rift Valley since independence.138 But the

most recurrent dispute or conflict is that between the Kikuyu and Kalenjin.

2.8.6.3 The lost Kikuyu land in colonial Kenya

The Kikuyu land question is mainly attributable to the steps taken by Kenyatta after

independence in dispossessing the Kikuyu in Central Province and settling his co-ethnics or

tribesmen (“my people”)139 out Kikuyu land, outside the former Central Province. Presidents

Jomo Kenyatta and Daniel Arap Moi used their powers to make land and other national or

Government resources and jobs accessible to members of their own ethnic groups, and especially

families, political and business affiliates and cronies.

The Kikuyu living in the Rift Valley have had historical land and business related conflicts with

the Kalenjins and the Maasai, while those living at the Coast have had conflicts with the native

134 …cf. Zimbabwe under Mugabe…South Africa under Mandela, Thabo Mbeki, Jacob Zuma, Cyril

Ramaphosa…and arguments by Economic Freedom Fighters (EFF) Party leader Julius Malema and the Economic

Freedom Fighters (EFF) Party….See… 135 … 136 … 137 For example Ngwataniro Mutukanio Land Buying Company……The land buying activities of Dixon Kihika

Kimani, the father of Susan Kihika (Nakuru County Senator, Jubilee Party, 2017-...). Cf. Nakuru District Ex

Freedom Fighters Organization (NDEFFO)…. See BBC (2019) “Zimbabwe's White farmers: Who will pay

compensation?” May 16, 2019, at https://www.bbc.com/news/world-africa-48264941 (accessed February 16, 2021). 138 …Chris McGreal (2008) “Kikuyu flee Rift Valley in terror as homes burned to ground,” Guardian, February 4,

2008, at https://www.theguardian.com/world/2008/feb/04/kenya.international (accessed February 16, 2021). 139 See Jomo Kenyatta (1966) My People of Kikuyu and the Life of Chief Wangombe, Oxford University Press; Jomo

Kenyatta (1938) Facing Mount Kenya, Secker and Warburg, London; Jomo Kenyatta (1968) Suffering Without

Bitterness: The Founding of a Nation, East African Publishing House..

21

coastal tribes. And some Kikuyu have apparently claimed Nairobi as part of post independence

Kikuyu domination or colonialism,140 yet it belongs to all Kenyans.141

2.9 Decolonisation in Kenya and Africa

The decolonisation of Kenya began in earnest in about 1940. Two issues. First, is the

problematique of the dualism between resistant and collaborating tribes. Second, according to the

late history of Kenya Professor ES Atieno Odhiambo (ESAO), no fixed date can be ascribed to

decolonization142…... Kenyans were always resisting or collaborating or both, depending on the

context. For instance, the Kikuyu cooperated through Waiyaki wa Hinga.143 Then resisted under

Harry Thuku. Then cooperated under Thuku, Senior Chief Waruhiu wa Kungu,144 and Josiah

Njonjo….

The Kikuyu collaborated and resisted at the same time under Senior Chief Koinange wa

Mbiyu;145 and Jomo Kenyatta. Luo, Kalenjin, Luhya, Kisii146 also resisted and/or cooperated

depending on the issues.147

The three main forms of decolonization were: First, peaceful negotiation and constitutional

discussions. These focused on freeing or liberating Kenya. These were through memoranda, for

example petitioning for land rights and against colonial instrument of identification (kipande).

This is part of the constitutionalists’ perspective in the Kenyan struggles for independence

constitution includes Kenyatta, Achieng’ Oneko, TJ Mboya Oginga Odinga Achieng’ Oneko….

Second, militant and violent resistance included raids on colonial establishments, killing of

colonial administrators or their supporters, collaborators, supporters and sympathisers and

disabling colonial installations like railways.

Some of the more famous militant leaders in the colonial period included Me Katilili wa

Menza,148 Nandi Warriors and Koitalel Arap Samoei,149 Muindi Mbingu,150 Elijah Masinde of

Dini ya Musambwa151, Dedan Kimathi,152 Stanley Mathenge (Mau Mau).153….

140 …Michela Wrong (2008) “Who Are the Kikuyu? And why do Kenya’s other tribes resent them so much?,” at

https://slate.com/news-and-politics/2008/02/why-do-kenya-s-other-tribes-resent-the-kikuyu.html (accessed February

16, 2021). 141 Nairobi was initially a Maasai settlement, Enkare Nairobi. Over time, Nairobi has expanded into Kajiado,

Kiambu and Machakos. See Chapter 26 on Amending the Constitution in Kenya Post 2017. 142 …..to quote ESAO in Ogot and Ochieng Decolonization and Independence. 143 Lonsdale (1995) “The prayers of Waiyaki: Political uses of the Kikuyu past” W.R. Ochieng (eds) on Waiyaki,

Kenyatta, Ngugi… Historical Association of Kenya (HAK) conference… 144 British colonial injunction….. 145 See Koinange wa Mbiyu v. R on planting coffee by Africans. 146 Cf. Otenyo, Chief Nyandusi. 147 ES Atieno Odhiambo (1974) The Paradox of Collaboration and Other Essays, East African Literature Bureau,

1974; Ben Kikorir (1980) Biographical Essays on Imperialism and Collaboration in Colonial Kenya, op. cit.

22

The third form was a mix of the two. For instance, most communities generally collaborated and

or resisted before, during and after the two World Wars, 1914-18; 1939-45. The First World War

was fought among the Germans, Austria-Hungary, Bulgaria and the Ottoman Empire on the one

hand, and the Great Britain, France, Russia, Italy, Romania, Japan and the United States (the

Allied Powers) on the other. Kenya, Nigeria, Uganda, Tanzania, Ivory Coast (Cote d’

Ivoire)...were involved in the war directly and indirectly on either side. It was initially called the

Great War; the war to end all wars.154 Did it? Significantly, Germany with its African possessions or

protectorates including Tanzania (to the British) and South West Africa (Namibia) to South Africa(?)

What was the Second World War about?155 Immediate and remote causes?156

It has been argued that both the First and Second “World Wars” contributed significantly to the

upsurge of tribal or ethnic and territorial African nationalism in Kenya, Nigeria, Uganda and

South Africa. It is as an upsurge rather than an emergence of African nationalism as argued by

Western scholars, because nationalism among Africans and Kenyans in this case was always

extant and antedated colonialism.157 The major difference was its territorial scope once

colonialism and confined more tribes within larger territories…..

148 Mekatilili wa Menza led the Giriama people in a rebellion against the British Colonial Administration and

policies actively in 1913 – 1914. See…. Nita Bhalla (2020) “Kenyan female freedom fighter Mekatilili wa Menza

celebrated on Google,” Reuters, August 9, 2020, at https://www.reuters.com/article/us-kenya-women-fighters-

idUSKCN2550SY (accessed February 16, 2021). 149 Koitalel Arap Samoei was an Orkoiyot (prophet), the supreme chief of the Nandi people. He led the Nandi

resistance against British rule, specifically leading the opposition to the construction of the railway. 150 Muindi Mbingu led the Kamba people in the 1930s in resisting colonial rule, although he would later be

murdered at the height of the State of Emergency in 1953 for collaborating with colonialists in hunting down Mau

Mau. 151 Elijah Masinde also led a number of localised defiance campaigns against the colonial authorities, and was

imprisoned many times from 1944. He founded the religious movement, Dini ya Musambwa. 152 Dedan Kimathi was the senior military and spiritual leader of the Mau Mau Uprising. 153 Stanley Mathenge also led the Mau Mau rebellion, although it is believed they had leadership wrangles with

Dedan Kimathi. He disappeared in 1955 and was later reported to be allegedly living in Ethiopia. See cf. ES Atieno

Odhiambo & John Lonsdale (2003) “Who were the Mau Mau?” Mau Mau and Nationhood,” Oxford University

Press …..; ES Atieno Odhiambo (2014) “The Production of History in Kenya: The Mau Mau Debate,” Canadian

Journal of African Studies, Volume 25, 1991 - Issue 2, at

https://www.tandfonline.com/doi/abs/10.1080/00083968.1991.10803893 (accessed February 16, 2021). 154 … Steven Erlanger (2014) “The War to End All Wars? Hardly. But It Did Change Them Forever,” New York

Times, June 26, 2014, at https://www.nytimes.com/2014/06/27/world/europe/world-war-i-brought-fundamental-

changes-to-the-world.html (Accessed February 16, 2021). 155 Who were the aggressors? What was appeasement about? Who were the warring states on both sides? Which side

did the following countries fight on? Kenya, S. Africa, Nigeria, Cameroon, Senegal, Uganda? What were the key

terms of the armistice or peace treaty? Cf. victor's justice. How did World War II relate to the Cold War in terms of

cause, execution and effect of World War I. Cf. DN Pritt’s pro-sociologist analysis…..were the soviets always as

selfless in World War II? Portrayed by some? 156 … Tom Matthews (2020) “What Started World War Two? November 9, 2020, Historic Newspapers, at

https://www.historic-newspapers.co.uk/blog/what-started-world-war-two/ (Accessed February 16, 2021). 157 …Ibid.

23

We adopt a three-pronged approach to conceptualizing and problematizing African nationalism.

First, by African nationalism, we mean that sense of shared identity common among Africans

owing to shared historical experiences such as (pre-colonial expression, cultural norms, racial

origins, and traditional social institutions.158 Second, it describes the shared liking and affinity by

a people as regards their origin. Significantly, this African nationalism was always present

among the Africans even before the coming of the colonialists as evident in the organized way of

life of African communities that shared great identity and defended their territorial and cultural

integrity.159

Some have argued that Africans learnt about warfare from these wars and used it against

colonialism.160

Taban Lo Liyong, a Sudanese literary critic and poet, characterized this state of affairs

poetically.161 He credited three (3) white women with the renewed struggle for independence and

nationalism among Africans, namely Fredrick Nietsche, Adolf Hitler162 and Karl Marx.163 Liyong

was simply exhorting Nietsche for coming up with the idea of the superman or the master race,

Hitler for putting into action the idea of Nietsche in Nazi Germany based on a master race

ideology albeit in the most brutal of means, and Marx for fuelling the idea of emancipation of the

masses from economic exploitation by other human beings in the upper social class.

Third, ….

What is not in doubt is that many Kenyans who went to the wars became more politically,

socially, technology, and culturally conscious. They became more conscious about the problem

of racism or kalaba (colour bar) and the desire for economic, political social and cultural

freedom. They learnt that the British were also vulnerable in war. They had behaved as if they

were invincible. The two World Wars helped in the deconstruction of the lie and myth that the

158 … Maurice N. Amutabi (2018) “Nationalism in Africa: Concepts, Types and Phases,” in: Oloruntoba S., Falola

T. (eds) Palgrave Handbook of African Politics, Governance and Development, Palgrave Macmillan, New York. 159 To summarise this paragraph into a three pronged typology and cross reference…. 160 F. Cooper (1994) “Conflict and connection: Rethinking colonial African history,” American Historical Review,

1516-1545…. 161 Cite historians, political scientists..... 162 Source...... John Cai Benjamin Weaver (2011) “Adolf Hitler’s account of the ‘Nation’ and ‘Nationalism’” E-

International Relations, May 16, 2011, at https://www.e-ir.info/2011/05/16/adolf-hitlers-account-of-the-

%E2%80%98nation%E2%80%99-and-%E2%80%98nationalism%E2%80%99/ (accessed February 16, 2021); cite

on Hitler....quote the poem on “they came for Jews, the trade unionists.....” See Michael S. Rosenwald (2017)

“”Then they came for me”: A Hitler supporter’s haunting warning has a complicated history,” Washington Post,

19/8/2017, at https:www.washingtonpost.com/news/retropolis/wp/2017/08/19/then-they-came-for-me-a-hitler-

supporters-haunting-warning-has-a-complicated-history/ (accessed October 6, 2020); Martin Pastor Niemoller in his

speech said “First they came for the Socialists, and I did not speak out/ because I was not a socialist/ then they came

for the trade unionists, and I did not speak out because I was not a trade unionist/ Then they came for the Jew, and I

did not speak out- because I was not a Jew/ Then they came for me, and there was no one left to speak out for me.” 163 …..see also Chapter 5 (on Theory and Methodology of Comparative Constitutional and Administrative Law in

Kenya and Africa: Law and Sustainable Development) in Ben Sihanya (2021) CODRALKA 1

24

White man was superior, which also acted as a huge psychological boost for the African.164 The

Africans also internalized the British rhetoric fighting freedom against fascism including

Nazism, yet Africans were not free in Kenya.

The Africans also learnt war techniques and technologies in the two wars…..165

2.10 The 1952 Conjuncture in Kenya

In 1952, the young and restless group of militants that had been circumcised in 1940 (the Group

of 40s or the “Anake A 40”) took up arms and went to Mt Kenya and the Aberdare, among other

forests. Mau Mau struggle was marked by, among others, the declaration of a State of

Emergency by Governor Evelyn Baring also the same day that the Kapenguria Six were arrested

(October 20, 1952).166 Then followed the capture and hanging of Field Marshall Dedan Kimathi

wa Waciuri (1956; 18/3/1957). This followed his sham trial in R. v. Kimathi wa Waciuri.167

Numerous people suffered death,168 injury,169 torture,170 restriction of liberty,171 detention without

trial, concentration camps, destruction of and damage to property.

By 1958, rural Kikuyu and Embu were organizing once more under a new secret society known

as Kiama Kia Muingi (Society or Council of the People) opposing land consolidation and

representing a continued thread of support of Mau Mau.172 Significantly, the argument that

Kenya’s Constitution was an entirely negotiated instrument is not accurate. Nor is the argument

that militancy alone brought independence.173 The literal interpretation of Rudyard Kipling’s

164 Ndabaningi Sithole (1968) African Nationalism, Oxford University Press, New York, (2nd Edition) , at 47. The

author notes, “This discovery that the white men also bled, were scared and got killed in the world wars, for indeed

it was an eye-opening discovery, had a revolutionizing psychological impact on the African.” (emphasis mine). Cf

“the rich also cry” a TV series in the early 1990s…. 165 Some have contested this, for instance Ngugi wa Thiong’o and Micere Githae Mugo (1977) The Trial of Dedan

Kimathi (a play), Pearson Education. 166 Legal instrument declaring the state of emergency; the emergency regulations. How many were arrested?

Restricted? The state of emergency was finally lifted in January 1960. Most detainees were released and restrictions

on Kikuyu movement ended, leading many to travel to the highlands seeking work. Cf- Ocampo Six; especially

misplaced analogy with Kenyatta at ICC. 167 See R. v. Dedan Kimathi wa Waciuri…Dedan Kimathi wa Waciuri v. Regina, Her Majesty’s Supreme Court of

Kenya at Nyeri, Criminal Case No. 46 of 1956.. 168 … 169 … 170 Does Prof Caroline Elkins appreciate the implication of her exaggerated numbers on death toll and incarceration

in a Kenya where Mau Mau is used to post justice…post independence tribal colonization and hegemony… e.g.

ESAO, Matunda ya Uhuru? Prof Elkins has been justifying her data and arguments….contra

Lonsdale…Anderson…Ogot….. 171 … 172 Charles Hornsby (2012) Kenya: A History since independence, I.B. Taurus & Co Ltd, London, New York, at 59. 173 Rudyard Kipling (1929) “The White Man’s Burden: The United States & The Philippine Islands, 1899.” Rudyard

Kipling’s Verse: Definitive Edition (Garden City, New York: Doubleday, 1929), at:

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=10&cad=rja&uact=8&ved=0CFsQFjAJ

ahUKEwjHxNP94rLHAhVpGtsKHaTBAAE&url=http%3A%2F%2Fctah.binghamton.edu%2FJusticeDocs%2Fwhit

e.mans.burden.doc&ei=5jfTVce5Dum07Aakg4MI&usg=AFQjCNEDA2jlN01BAST7tcgmW2pk4jGr4Q&sig2=7uqjA

iduWk9WbnlmkYBBBQ&bvm=bv.99804247,d.ZGU. (accessed 18/08/2015). Was Kipling a parodist?

25

poetic argument that England should civilize the natives had failed. 174 The message of the “poet

of imperial England was taken up by those who the Poet urged the US to take up the “burden” of

the empire as had Britain and other European nations.

2.11 Mau Mau Phase I in Kenyan Public Interest Lawyering

The Mau Mau uprising presented one of the earliest contexts for strategic litigation or PIL.

Whatever the causes, historians are agreed that Mau Mau was the product of and led to

marginalization especially among the Kikuyu. Land deprivation, deprivation of indigenously

relevant education, and female circumcision.175 And there is general consensus that Mau Mau’s

outcome is manifested in continued deprivation of the initial Kikuyu under class, as well as a

disenfranchisement of a broader spectrum of Kenyans on the claim that only certain individuals

or groups fought for independence and are thus entitled to the fruits of independence or Matunda

ya Uhuru (in Swahili).176

Many Mau Mau supporters or suspects were subjected to mass killings, torture, detention

without trial, mass trials, concentration camps hence denial of basic liberties, property and

security, and further economic and political deprivation. The six leaders of the Kenya African

Union (KAU) consisting of Jomo Kenyatta, Bildad Kaggia, Richard Ramogi Achieng Oneko,

Paul Joseph Ngei, Fred Kubai and Kungu Karumba177 were arrested and put on trial for six

months from November 1952 to April 1953.178

It was alleged by the settlers, Colonial Government and British Government that between

October 12, 1950 and October 20, 1952, the six accused persons had been members of Mau Mau,

an unlawful society.”179 Kenyatta was also charged with managing Mau Mau. The other five

were also charged with assisting Kenyatta in the management of Mau Mau….

174 Ali Mazrui calls Kipling “the poet of imperial England” in The Africans: A Triple Heritage…..Some argue that

the Kipling poem was satirical…..To quote Kipling’s “The White Man’s burden…” and relevant parodies of it. 175 ES Atieno Odhiambo (2003) “Seven theses on Mau Mau,” in ESAO & Lonsdale (eds) Mau Mau and

Nationhood: The untold story; Lonsdale, “The moral economy of Mau Mau: Wealth, poverty and civic virtue in

Kikuyu political thought…;” David Anderson (2011) “Mau Mau in the High Court and the ‘lost’ British Empire

Archives: Colonial Conspiracy or Bureaucratic Bungle?,”… Waunyabari Maloba, “Mau Mau and Kenya: An

Analysis of a Peasant Revolt”……; Tabitha Kanogo (1987) Squatters and the Roots of Mau Mau, 1905-1963.

Series: Eastern African Studies….. 176 ES Atieno Odhiambo (2003) “Seven theses on Mau Mau,” ibid. 177 While the five were national officials, Karumba was a local (district) official of KAU. 178 Paul Mwangi (2001) The Black Bar: Corruption and Political Intrigue Within Kenya's Legal Fraternity, Oakland

Media Services…. 179 Dennis N. Pritt (1965) “The Kenyatta cases” in D. N. Pritt, The Autobiography of D.N. Pritt: The Defence

Accuses, Vol. III;….Montagu Slate, The Trial of Jomo Kenyatta (1955)…Contra Rawson Macharia, The Truth about

the Trial of Jomo Kenyatta, Lawrence & Wishart …..

26

They were accused of conspiring together and with persons not before the court to commit

felony by physical force or by threat or intimidation to compel persons in the Kenya Colony to

take an oath to bind the persons to act in a certain way.180

KAU was the nationwide political party and therefore the arrest, prosecution and defence of its

leaders was a matter of public interest, even though KAU’s management had been ethnically and

culturally insular and its political programmes ineffective.

By September 1952, the courts had jailed more than 500 Mau Mau supporters, most with no

legal representation.181 A few lawyers came forward to offer PIL and pro bono legal service

including Denis N. Pritt, AR Kapila and CMG Argwings Kodhek and what Pritt acknowledges

as “junior Kenyan lawyers.”182

The trial of the Kapenguria Six proceeded with heavy pressure from the British Government to

have the accused persons convicted.183 What were the offences who? What was the law and

evidence? Who were the witnesses? Some of the three key issues that negated public interest in

the trial included: First, location of the trial in Kapenguria, a distant, inaccessible, “closed”

district, rather than Nairobi or Kiambu or Nyeri where the alleged offences reportedly occurred.

Second, the appointment and bribery of the retired Judge R.S. Thacker who was the trial

magistrate.184 And bribing and perjury associated with the principal (or star) witness, Rawson

Macharia, the self-proclaimed bush lawyer185……At the end of the trial, the six were found

guilty and sentenced to seven years imprisonment with “hard labour.”

On Appeal to the Kenyan Supreme Court (current High Court), Achieng Oneko was acquitted.

But they all served term all the same, with the five in prison and Oneko interned in a

concentration camp…186 For Kenyatta, there would be two years restriction which was partly in

Maralal. He could be visited and was released in August 1961.This is where Uhuru Kenyatta was

“conceived” according to his entry in a visitor’s book in 2012… He was born on 26/10/1961 and

marked his 56th birthday with a tailor made presidential election laws and election date.

180 Ibid. See also Fred Oluoch (2017) “The case that immortalised Kenya's ‘Kapenguria Six,’” EastAfrican, July 1,

2017, at https://www.theeastafrican.co.ke/magazine/Case-that-immortalised-Kenya-Kapenguria-Six-/434746-

3995106-s8sxn5z/index.html (accessed 28/10/2020). 181 John Kamau (2019) “Argwings-Kodhek: The politician history should never forget,” Daily Nation, Nairobi,

27/1/2019, at https://www.nation.co.ke/news/what-made-Argwings-Kodhek-special/1056-4952900-

gpsvmwz/index.html (Accessed 16/9/2019). 182 See Regina v. Jomo Kenyatta & 5 Others, Criminal Case No: 1 of 1952; Jomo Kenyatta & 5 Others v. Regina

[1954] eKLR. D.N Pritt “The Kenyatta cases”…. 183 Paul Mwangi (2001) The Black Bar, op. cit. 184 Montagu Slater, The Trial of Jomo Kenyatta…, ibid; D.N. Pritt, “The Kenyatta Cases,”….ibid. 185 Macharia, The Truth about the Trial of Jomo Kenyatta, ibid; D.N Pritt, “The Kenyatta cases,” ibid. 186 D.N. Pritt, “The Kenyatta Cases…,” ibid.

27

2.11.1 CMG Argwings Kodhek’s contribution as “Mau Mau lawyer”

Clement Michael George (CMG) Argwings Kodhek (CMG or Agwingi…) was the first African

Kenyan lawyer in Kenya. According to reports, after returning to Kenya from Britain where he

had been admitted to the bar, CMG had first sought employment at the Attorney-General’s

chambers but was given a salary which was “a third of what Europeans in the same grade were

getting.”187

He reportedly protested and left to start his own law firm at Church House and was the only

African in Kenya with a law firm. CMG would start his practice by taking up the criminal cases

which Mau Mau fighters faced.

The pioneer Kenya historian Prof Bethwell Allan Ogot described CMG’s role in PIL in the

following words:

“Almost single-handedly, Argwings-Kodhek took on the formidable challenge of defending the

rights of ordinary Kenyans during this critical period,”188

Ogot adds:

“He argued that human rights are indivisible and universal and that freedom cannot be

appropriate in the West and inapplicable in Africa.”

To the Kenya Africans CMG was a liberator and a hero, Chiedo Mor(e) Gem (the frying soil of

Gem) as he was referred to by himself and his supporters. To the whites, CMG was an upstart

and a demagogue.

Shortly after the 1953 Lari Massacre, in which 150 Mau Mau loyalists, including Chief Luka

Kahangara, were killed, Argwings-Kodhek is reported to have helped 48 of those charged to

successfully appeal on a legal technicality.189

The Daily Nation would later describe CMG’s role thus:

“As the sole African criminal lawyer, he made it his duty to defend the Mau Mau, and he did it

with gusto traversing Nairobi and Central Kenya courts to the chagrin of colonial settlers and the

establishment.”

187 He waxed Shakespearean in responding to whites who sneered at African lawyers: “Woe and wilt upon Brittania,

that she chooses to export to most stupid and vile of her son, oh mistaken queen, come and evacuate these

simpletons who understand nothing of you, neither your jurisprudence nor your language” See Coast week

online….;… and 50th Anniversary programme 29/1/19, Nairobi and on.3/2/19 in Gem Nyawara, Siaya County. 188 John Kamau (2019) “Argwings-Kodhek: The politician history should never forget, op. cit. See BA Ogot, A

History of the Luo speaking people of Eastern Africa, 736-790. B.A. Ogot (1995) Politics of Populism in Kenya,” in

B. A Ogot & W.R Ochieng (eds) (1995, 1996) Decolonisation and Independence in Kenya, 1940-93, James Currey,

London, EAEP, Nairobi, & Ohio UP, Athens. 1963-1995, in Ogot & Ochieng (eds) Decolonization and

Independence 189 John Kamau, “Argwings-Kodhek,” ibid.

28

The Nation adds:

“The Western media hated him too and dubbed him the “Mau Mau lawyer” — which was

supposed to be demeaning.”190

CMG also represented Mau Mau suspect, (Yusuf) Waruru Kanja, the would be Nyeri Town MP

and Minister in the Kenyatta and Moi administration.191

Argwings-Kodhek was married to Mrs Mavin Tate Argwings Kodhek and later Mrs Joan

Ominde Argwings Kodhek and had children who would later serve in public life. CMG would

later become the first Member of Parliament for Gem in Siaya, serving from independence in

1963 to January 29, 1969 when he died following a “road accident.”192

Thus D.N. Pritt, CMG, A.R. Kapila and J.M. Seroney, among a few lawyers established the

tradition of public interest lawyering, in the narrow and broad sense that includes litigation, legal

advisory, using political process and activism.

2.11.2 Contribution of DN Pritt to PIL in Kenya

Denis Nowel Pritt was a British lawyer and politician. He was a self proclaimed “political

Lawyer,” a term he used to describe what is now called strategic or public interest lawyring.

Prittm oved from the right (Tom) to the left inspired and occupied by the Labour Party. He was

influenced by neo-Marxist, social democratic, socialist and communist movements. He later

became independent after expulsion from the Labour Party…..193

What role did he play in the trial of the Kapenguria 6? In defending TJ and 6 AEMO members194

DN Pritt’s representation of the Kapenguria 6 of Rawson Macharia (on a perjury charge),195 and

the AEMO 7 (TJ Mboya and Co.) further illustrate the role of public interest lawyering in

economic and cultural struggle and emancipation. The challenge is addressing the intra and inter

class as well as inter ethnic or gender cleavages.

190 Ibid. 191 Kanja had been charged under the Emergency (or anti Mau Mau) laws and regulations… 192 Toyin Falola & Atieno Odhiambo (eds) The Essays of Bethwell Allan Ogot: The Challenges of History and

Leadership in Africa, Africa World Press, Inc. Asmara, Eritrea, op. cit., at 346-347. 193 See D.N. Pritt (1965) From Right to Left, Lawrence & Wishart, London. Parastatals and bureaucrats”; See D.N.

Pritt (1966) “The Kenyatta Cases,” in DN Pritt (1966) The Defence Accuses: Part 3, Lawrence & Wishart, London,

Chapter 8… 194 See D.N. Pritt (1966) “Cases in Cyprus, Kenya, Uganda, Tanganyika,” in DN Pritt, The Defence Accuses: Part 3,

Chapter 13, 177-190, at 179-181; D.N Pritt (1966) Brasshats and Bureaucrats: Part 2, Lawrence & Wihart, London. 195 The public interest demanded that the profiteering villain Rawson be represented. The strategy was to seek

nullification or at least discredit the conviction of the Kapenguria 6…which had been mainly based on his evidence,

that he had now recanted on oath.

29

Thus, the legal representation by Pritt and his team helped justify grievances of the accused, of

the Mau Mau, and the cause for independence. However, it could not help prevent the future

narrow uses of Mau Mau or militant struggle to justify post independence hegemony...

2.12 Mau Mau Litigation Phases 2, 3 and 4 and PIL in Kenya and the UK

The Mau Mau revolt resurfaced in public interest lawyering in the 2000s and 2010s. First, a

claim for the Mau Mau killed or injured was brought in London through the law firm of Leigh

Day seeking Compensation of 4.5M Pound Sterling.196

The third phase involved a further claim. The court ruled that at least 50 years had lapsed since

the alleged atrocities. That the matter can’t be litigated, there would be no fair trial since the

defendants may not easily defend themselves.

Contrarily, such arguments may stand with respect to vulnerable, weak, private defendants. Here,

the main defendant is the UK Government and Government officials who bore and bear official

and personal responsibility. They should be able to have evidence given the matter had never

been resolved197…

The fourth phase of the Mau Mau litigation involved the Law Society of Kenya (LSK) making a

claim in the Kenyan High Court against the Kenya Human Rights Commission (KHRC), the UK

law firm of Leigh Day, and Mau Mau War Veterans Association198

LSK made the claim as a public interest issue. They inter alia, faulted Leigh on the manner in

which the suit was handled. The legal fee stood at KES 769,680,000 out of the KES 2.5 Billion

paid out by the British authorities. LSK argued that the amount is more than 40 per cent of the

total benefits, which they claimed is illegal.199 Leigh was also faulted for “recruiting clients” in

Kenya and practising without a practicing certificate. The Court dismissed the claim on the

ground that the public interest issue that the LSK sought to protect was brought too late in the

day; and that the advocate client privilege between the Mau Mau victims and their lawyer

protected them.200

The four phases of Mau Mau (MM) litigation address the issue of British reparation for colonial

atrocities against Mau Mau. What about the British and Kenyan Government reparations for

colonial and post colonial murder, assassination, deprivation of liberty, taxation, forced labour,

196 Ndiki Mutua & Others v. Commonwealth Office, London No. HQ 09XO 2666 of 2012… 197 In any event, some UK government officials sought to destroy evidence on 1950s…… 198 Law Society of Kenya v. Martin Day & 3 others, Civil Case 457 of 2013 [2015] eKLR. 199 Isaac Ongiri (2013) “Law society sues firm over Mau Mau case,” Daily Nation, Nairobi, 7/12/2013, at

https://www.nation.co.ke/news/Law-society-sues-firm-over-Mau-Mau-case-/1056-2103426-clb0uhz/index.html

(accessed 20/9/19). 200 Law Society of Kenya v. Martin Day & 3 Others, ibid.

30

exclusion from public office or opportunity….201 The lessons learnt on the Mau Mau cases and in

the PIL cases in the Kenyatta, Moi, Kibaki and Kenyatta 2 administrations have been useful in

securing the potential of PIL in matters concerning diverse issues such as class, ethnicity or tribe

and gender, as well as in criminal, civil and related cases…

2.12 Kenya’s independence struggle: the radicals v. the constitutionalists v conjuncture and

synthesis

An accurate narrative must capture the constitutionalists’ and radicals’ perspectives on the

struggle and meaning of Kenya’s independence.

2.12.1 The radicals’ argument on Kenya’s Independence202

The radicals are the militants, politicians, activists, academics, scholars and commentators or

pundits who support(ed) the argument that Kenya’s independence was attained through violence

and militancy in Mt Kenya and independence was nyakwa-d or grabbed. These include Dedan

Kimathi wa Waciuri and his Mau Mau group, various supporters of Mau Mau. What of Elijah

Masinde’s Dini ya Musambwa, and other affilliated violent or militant groups?

The scholars or academics include historian Maina Kimani wa Kinyatti,203 novelist Ngugi wa

Thiong’o, poetess Micere Githae Mugo,204 historian David Mukaru Nga’ng’a, historian? Mwangi

wa Githumo,205 and younger Mau Mau or uthamaki commentators (?)

201 Compare the perspectives of Prof Carol Elkins, Harvard history professor and one of the researchers who

supported the Mau Mau case in London, in Carol Elkins “Britain has said sorry to the Mau Mau. The rest of the

empire is still waiting…”

202 John Lonsdale (1992, 1997) “The moral economy of Mau Mau: The Problem,” in Bruce Berman & John

Lonsdale (eds), Unhappy Valley: Conflict in Kenya and Africa: Book Two: Violence and Ethnicity.

James Currey , EAEP & Ohio UP, Oxford, Nairobi & Athens, 265-314 (Chapter 11)

John Lonsdale (1992, 1997) “The moral economy of Mau Mau: Wealth, Poverty and Civic virtue in Kikuyu

Political thought” in Berman & Lonsdale, ibid, 315-504 (Chapter 12);

ES Atieno Odhiambo, “Matunda ya Uhuru, Fruits of Independence: Seven Theses on Nationalism in Kenya,” in ES

Atieno Odhiambo & J. Lonsdale (eds) (2003) Mau Mau and Nationhood: Arms, Authority and Narration, Ohio

University Press, Athens. Summarise ESAO these in text.....Ben Sihanya (2018) “The Kikuyu Uthamaki

Constitution versus the Kenyan Constitution and state,” Provisions include: Art 1 Kenya is an uthamaki state; Art 2:

Kenya leadership and the titles shall remain in the House of Mumbi. Art 3: Security, finance, education shall be

controlled directly and indirectly by a member of the House of Mumbi; Art 4: Employment, contracts, tender and

even “corruption” shall be controlled by co-ethnics, kins people, “our own” andu witu,mOundu wa nyumba, and not

(andu waruguru)... 203 Kinyatti helped establish the Mau Mau Research Centre in the US. What are the prog..participants? He used to

teach at Kenyatta University and fled after he was imprisoned for sedition. His eyesight was impaired in gaol. 204 Ngugi and Micere are creative writers and literary scholars. See Ngugi’s Detained and the preface to their drama,

The Trial of Dedan Kimathi (1976), in which they seek to correct, rewrite (or revise) Mau Mau history. They argue,

inter alia, that Mau Mau was the most glorious chapter in Kenyans’ struggle against foreign economic, political and

cultural domination; that it was a nationalist movement; that Kimathi never learnt military skills from the (White

man’s) Second World War, etc. Cf. Dinesh D’Souza “Two cheers to colonialism: How the West Prevailed”...;

Dinesh D’Souza (2002) What’s So Great About America, Regnery Publishing, USA, Chap. II…….. 205 Cf the defensive Mwangi wa Githumo, “The truth about Mau Mau movement: The most popular

uprising…”Most popular compared to other militant movements? Which? Or constitutionalist political makeshifts?

31

This group regards non-Kikuyu militants like Elijah Masinde and his Dini ya Musambwa as

irrelevant or unimportant.206

The argument is that the Kenya African Union (KAU) was taken over by the radical groups

(especially the Kenya Land and Freedom Army (KLFA) or the Group of 40 (Anake 40). They

did not want roundtable debates but took to arms in fighting through the Mau Mau in the forest

and in various sites in Kenya. The strategies and tactics included labour agitation, sabotaging

White projects, and guerrilla warfare.207

On October 20, 1952, some of the African leaders were arrested as Sir Evelyn Baring declared a

state of emergency, which many White settlers had demanded for some time.208 The Kapenguria

6 were arrested and tried. Who were they and what were their actual roles in the independence

struggle? In the post-independence dispensation? The Kapenguria trial was the closest point of

convergence between the Mau Mua militants and the constitutionalists. Three issues.

First, of the Kapenguria Six were being charged with belonging to and managing the Mau Mau,

an illegal society.209 The other five were charged with being members of and assisting in the

management of Mau Mau.210 .

Second, the Kapenguria Six denied the charge and argued they wishes to secure independence,

“by constitutional means”

Third, the key strategic support for the Kapenguria Six came from the constitutionalists,

including TJ Mboya and lawyers in including Denis Pritt, A.R. Kapila, CMG Argwings Kodhek,

among others. The masses who had been split and the question of militancy or then Mau Mau

before the arrest and trial generally supported the Kapenguria Six.

The emergency regulations confined the Kikuyu Embu Meru (KEM) to their homelands. They

and others needed passes to travel...211

Popular also among victims of Mau Mau in Kikuyuland, and in the rest of Kenya? Cf. the book, Mau Mau

Children……Some killed by Mau Mau to grab their land…supporters of Ambrose Ofafa….Tom

Mamboleo…..Senior chief Wambiu…. 206 Cf. Ben Kipkorir (1980) Biographical Essays on Imperialism and Collaboration in Colonial Kenyaa,” Kenya

Literature Bureau……. 207 Cite historians, bibliographies, memoirs, intelligence reports.. Corfield Report,.Mau Mau insurgency....Books by

participants like Kimathi, Gen China Kaggia, Karari wa Njama, Josiah Mwangi Kariuki (1963) “Mau Mau”

Detainee: The Account of a Kenya African of His Experiences in Detention Camps, 1953-1960,” Oxford University

Press; Rosberg & Nottingham; David Anderson, Caroline Elkins; ESAO (1981) “Who the Mau Mau;” HAK; ESAO

(1981) “Mau Mau in the international press…. HAK… etc. 208 … 209 Mau Mau had been proscribed under the Emergency Regulations 1950…. 210 See Ben Sihanya “Public Interest Lawyering and Constitutional Reform in Kenya and Africa since CMG

Argwings Kodhek,” presentation at the University of Nairobi and Oxfam International Conference on Strategic and

Public Interest Litigation, October 204, 2019.

32

KAU and nationwide political parties were prohibited.212

Emergency restrictions were lifted in 1960.213 But the prohibition of Mau Mau lasted much

longer.

How did Mau Mau influence the struggle in other African states, especially with whites like

South Africa, Zimbabwe (Southern Rhodesia),214 Algeria,215 Namibia (South West Africa)216

Since 1960, there has been a more controversial debate regarding the role of the radicals (Mau

Mau, etc) as well as the constitutionalists, in the attainment of independence.

Curiously, Prof Macharia Munene made the argument linking the cases facing President

Kenyatta and DP Ruto at the International Criminal Court (ICC) with the pre-independence

Kapenguria trials. He drew a similarity of the Hague as the new Kapenguria.217 The comparison

is misplaced and spurious. The comparison is an affront to the Constitution and the direct and

indirect victims of post-election violence (PEV).

There are at least six reasons for this. First, the Kapenguria 6 and the Mau Mau confronted a

racist, colonial Government. ICC was about a tribal Governmengt using manipulation against

non Kikuyus to rig elections and stay in power.218

Second, unlike ICC cases, the trial of the Kapenguria 6 was based on colonial land oppressive

law. The ICC cases were based on the Constitution of Kenya, and the statute of the ICC which

Kenya had negotiated, signed, ratified, and enacted as the International Crimes Act, (….).219

Third, there was overwhelming evidence on the ICC cases. Part of that evidence was in the ICC

website, and included Dr Peter Mwangi Kagwanja’s articles on the criminal and political users of

Mungiki. The main challenge was that witnesses kept dying or disappearing (and not because of

climate change)? In the Kapenguria 6 case, most of the evidence was fabricated, including by

211 See David Percox (2012) Britain, Kenya and the Cold War: Imperial Defence, Colonial Security and

Decolonisation, I.B Taurus, London, New York; Muthoni Likimani...Pass No...WR Ochieng (1984) “The ghost of

Kenyatta in Mau Mau fiction,” HAK; W.R Ochieng (1984) “Kenyatta and Mau Mau...” ESAO (1991 “Kenyatta and

Mau Mau.” C. Odegi Awuondo (1984) “The rise of the cheering crowd...” 212 See Ben Sihanya (due 2021) “Human Rights and the Bill of Rights in Kenya and Africa: Electoral System,

Parties, CSOs, Business Organisations, Tax Justice and Welfare Association,” Chapter 17, CODRALKA 1. 213 … 214 … 215 … 216 … 217 Stephen Muthini (2013) “History don says Kenya ICC cases similar to Kapenguria trials,” Daily Nation, Nairobi,

6/12/2013, at http://mobile.nation.co.ke/counties/ICC-cases-similar-to-Kapenguria-trials/-/1950480/2101692/-

/format/xhtml/item/0/-/14qo6pq/-/index.html (accessed 21/05/15). 218 See Commission of Inquiry into the Post-Election Violence (CIPEV) (the 2008 Waki Report)…. 219 ESAO…; W.R. Ochieng…

33

bribing Rawson Macharia who perjured himself….………Fourth, most of the ICC suspects

controlled the machinery of Government at one point or another before or during the trial and

had unfair advantage against the “victims”… …….Fifth, most of the ICC suspects used state

resources to defend themselves, unlike the Kapenguria 6…….Sixth, for most of the ICC

suspects, lawyers, supporters and the Hague were more easily accessible than what the

Kapenguria 6 had faced….. So, was Jomo Kenyatta guilty? Not guilty? Innocent?

2.12.2 The Constitutionalists or Liberals arguments on the Struggle for and meaning of

Independence220

Who were or are the constitutionalists? What did or do they stand for? What did they do?

These are the political leaders, as well as the intellectuals, commentators, analysts, and pundits

who advocate(d) peaceful and negotiated constitutional change. They include Kenyatta, TJ

Mboya, Oginga Odinga, Ronald Ngala, Daniel Arap Moi, Masinde Muliro, Martin Shikuku, Paul

Ngei, Lawrence Sagini, among others.

The intellectuals in this group include Professor Yash Ghai, H.W.O Okoth-Ogendo, J.B.

Ojwang, B.A. Ogot, E.S. Atieno Odhiambo, Tabitha Kanogo, John Lonsdale, Godfrey Muriuki,

Wunyabari Maloba, Dr Ben Kipkorir, Profs Henry Mwanzi, Gideon S. Were, and William R.

Ochieng, among others.

The constitutionalist’s argument focus on constitutional development or advance or at least two

major founts. First, peaceful agitation, through petitions and memoranda and repatriation on the

land question. And second, broader political participation through welfare and tax payer

associations; and on party formation and a parliamentary representation. ….Third, broad based

constitutional reform…..221

2.13 Contesting the meaning, uses and abuse of the radicals’ arguments on Kenya’s

independence

How have the Kenyatta Kamaliza, Moi, Kibaki and Kenyatta Kamwana regimes used and abused

Mau Mau in the reconstruction of the Kenyan political economy, cultural politics, constitution

and state? Only (political) historians have consistently debated the role of the Mau Mau, violence

and military in the reconstruction of Kenya.

Historians have done this as individuals and within the framework of the Historical Association

of Kenya (HAK). The most remarkable debates are Ogot’s Presidential address to HAK in 1981,

220 On the various dimensions of and contributions to the decolonisation, nationhood and post-independence process

and discourse, see B.A. Ogot & W.R. Ochieng (eds) (1995) Decolonization and Independence in Kenya, 1940-1993

James Currey, London, EAEP, Nairobi, Ohio UP, Athens. See also Chapter 2.4.2…. 221 These are discussed in Chapter 5 of CODRALKA 1 on Public Participation and Representation in the (post)

colonial Constitution in Kenya and Africa.

34

1984 proceedings which were dedicated to Mau Mau. Kenyatta’s role in it and Ngugi’s

interpretation of Mau Mau in his novels, plays and essays,222 novels.

First, some constitutionalists, liberals and moderates argue that Mau Mau was a peasant revolt

against White domination and exploitation; and sought the recovery of lost lands.223

Second, some scholars like Prof Maina Kimani wa Kinyatti, Prof Ngugi wa Thiong’o Prof

Micere Githae Mugo argue that Mau Mau was a freedom struggle to attain Kenya’s - not just

Kikuyu –land, liberty, (including the right to female circumcision) and Karing’a or independent

schools224 That was the peak of Kenya African nationalism…..the “most popular

uprising”……225Kinyatti and others have even edited or revised some Mau Mau songs to read

“Kenya” instead of “Kikuyu.”226

Remarkably, Kimathi University established Mau Mau research and archiving in the context of

the 50th anniversary of Kenya’s independence.227

Third, others contend that Mau Mau was an intra-ethnic (Kikuyu) civil or class war between the

landless (ahoi), the exploited and frustrated, or essentially the Nyeri Kikuyu and the Meru, on the

one hand, and the homeguards of the White man, families of colonial chiefs and other

collaborators of the White man, or essentially the Kiambu Kikuyu, etc on the

other.228Reconstruct for clarity, brevity.229

Fourth, historians like the late Dr Ben Kipkorir and Dr Henry Mwanzi contend that national

freedom strugglers, unlike Mau Mau, left the forest for State House straight away.230 Meaning

222 ESAO (1991) “The production of History in Kenya: The Mau Mau Debate,” Canadian Journal of African

Studies, 25, No. 2;….. ESAO (…)… Kenyatta and Mau Mau….; ES Atieno Odhiambo (2003) “Seven theses on

Mau Mau: Matunda ya Uhuru,”…. Ochieng on Ngugi...and on Kenyatta. Odegi Awuondo, “The rise of the cheering

crowd,” …(on Ngugi, MM, Moi.....)…. 223 Cf. Tabitha Kanogo (1987) Squatters and the Roots of Mau Mau, 1905-63, EAEP, Nairobi (reprint 1993)….. 224 … 225 See Mwangi wa Githomi (1991) “Mau Mau: The most popular uprising in Kenya,” op. cit.…… Popular as

compared to what? Constitutional approach? What could progressive human rights activists and families of those

killed bum mau mau say? E.g. Ofafa, Mbotela, Waruhi…. 226 Cf. Ngugi wa Thiong’o (1981) Detained: A Writer’s Prison Diary, East African Publishers, Nairobi; republished

as Ngugi wa Thiong’o (….) Wrestling with the Devil: A Prison Memoir…….. Atieno Odhiambo, Ogot (1972) “The

revolt of the elders: an anatomy of the loyalist crowd in the Mau Mau uprising 1952-1956,” in B.A. Ogot (ed)

(1972) Politics and Nationalism in Colonial Kenya, East African Publishing House, Nairobi. [quote some of the

sayings in original by Ogot]; and as rendered by Kinyatti. 227 See Dedan Kimathi University website, at https://www.dkut.ac.ke/index.php/news/47-latest-news/308-mau-mau-

education-centre-workshop (accessed 28/6/2019). ...... 228 Cf. William Ochieng (1972) “Colonial chiefs: were they primarily self-seeking scoundrels?” in B.A. Ogot (ed)

(1972) Politics and Nationalism in Colonial Kenya, East African Publishing House, Nairobi, pp 46-70. 229 On chiefs who were the collaborators...which location...See Ben Kipkorir ……; cf. …… (…) Muganda

K’Okwako Amoth Owira……….……… 230 …

35

those fighting for national independence are the ones who eventually become the national

leaders.

Some illustrate this thesis by citing Yoweri Kaguta Museveni’s NRM/NRA, Paul Kagame’s

Rwanda Patriotic Front (RPF) which led the process in the context of the genocide in Rwanda,

respectively. Others also argue that in the same vein, DRC rebels, under the late Laurent Kabila,

etc marched to power (after mobutu forces were defeated and after he had refused to renegotiate.

They argue that Mau Mau was defeated and its leaders hanged by 1956.

They stress that Mau Mau did not immediately lead to Kenya’s independence because it was

defeated 7 years before independence. To them, Mau Mau may have remotely contributed to

independence, but was not the decisive or definitive cause of independence. Had it been MM,

independence would have been altered in 1957 or 1958, not 1963.

Fifth, it is also argued that Mau Mau had no programme on the meaning of independence or on

governance, or on the management of national resources. An example is the fact that MM leaders

had no (published) plan on how they wanted to administer or manage land and power had been

much occasioned by the Jomo Kenyatta (K1) and subsequent administrations including K+ as

well as among majority of Africa’s failed states. A recent case study can be argued to be the

Republic of South Sudan.

Sixth, there were many other protest and militant movements in Kenya besides Mau Mau among

the Nandi, Luhya (e.g Dini ya Musambwa), Maasai, Luo (cf. Piny Owacho Movement or voice

of the people movement).

Seventh, even within Mau Mau many other ethnic groups and individuals contributed to the

militancy.231 E.g among the ...in Holla

Eighth, that Mau Mau killed more Kenyan Africans than Whites (e.g. Councillor Ambrose Ofafa

after whom Ofafa Jericho is named). Some have asked: who and how would Mau Mau govern

given that they were killing and polarising or dividing Kenyans?

At the end of this some people were not accepted in Government. There were arguments only the

Kikuyu were in Mau Mau (leadership).

What would Kimathi do with power? Was his declared being the first PM an end in itself for

him? Given the limited tolerance that led to splits with (e.g) KAU, Kenyatta and within Mau

Mau Gen Mathenge faction), how would Kimathi or Mathenge lead a multi tribal independent

Kenya? In 1984 Kenya Historical Association organised a conference on the role of Kenyatta

and Mau Mau in historiography. Who was Kenyatta? A fire eating revolutionary or Black Moses.

231 See Ogot,.. …. Atieno Odhiambo…., John Lonsdale …..essays in Mau Mau and Nationalism……

36

Ngugi portrayed Kenyatta in Weep Not Child? Did Kenyatta change from a revolutionary to a

conservative opportunist as Ngugi argued in Detained?232

Others argue that Kenyatta never founded anything: not KCA, not KAU, not KANU, but was

always a manipulative and opportunistic, follower. But his two strengths appear to be first,

reminding Kenyans of Nkrumah’s slogan: seek ye first the political (not economic) kingdom….

And second, preaching the lessons he learnt from Pan Africanists like George Padmore Peter

Abrahams, Francis Kwame Nkrumah.....233

The emphasis was that power was in the UK, nationalists should focus on addressing metro

politant and colonial Government, not DCs, chiefs......234

There is debate that the UN, US, the Soviet etc contributed to decolonisation and independence

in Kenya and Africa. America’s interest was mainly because colonial states like Britain were

securing undue economic advantage in terms of access to raw materials and markets in the

colonies. Relatedly, the US had had an experience with the desire and struggle for freedom,

related to America’s struggle for independence,235 and the civil rights movement.236

Independence was attained partly because it had become uneconomical to govern the empire. It

was particularly expensive to continue governing Kenya, a resistive people.

Constitutional historians agree that Mau Mau constituted to the difficulties and cost for the

British Government and settlers to continue ruling or exploiting Kenya. The lesson is that civil

disobedience, protests, boycotts and mass action can lead to the attainment of freedom.237

E.S. Atieno Odhiambo emphasizes numerous points, among them:

First, who were the main (not the only) protagonists in Mau Mau? The Mau Mau fighters and

their families and the British settlers…..238

Second, who were the main winners and main (not the only) losers in the immediate aftermath of

Mau Mau? The main “winners” were the collaborators, including colonial chiefs, homeguards,

232 Cf. Ngugi (1982) Detained; republished as Ngugi wa Thiong’o (2018) Wrestling with the Devil: A Prison

Memoir….see also Weekly Review report on Historical Association of Kenya Conference early 1980s.

233 Cf. Steve M. Mutie, et al. (2015) “Jomo Kenyatta’s speeches and the construction of the identities of a nationalist

leader in Kenya,” 5:2 English and Literature Studies, Canadian Center of Science and Education … 234 Cf. Chief’s Authority Act, Cap 128 235 … 236 Issues, actors, leadership years, collaborators.... 237 Kenyan resistance in 1980s leading to saba saba (seventh of July) 1990. As JFK stated, “if you make peaceful

change impossible, you make violent change inevitable…” also see Eugene Kamenka (1983) Portable Karl Marx ..”

Quote…. 238 …

37

informers, religious leaders, …and their sons,239 daughters, grandchildren, son-in law. This was

because they directly inherited the reigns of power. Second, the value and structure of

government had supported and needed their political ideology and orientation, religious faith as

well as mission (and secular) education......240 Qualification for office would be based on

certificates from Alliance, Mang’u, Makerere, Fort Hare…and not machetes or pangas or

experience in forests of Mt Kenya or the Aberdares…….241

Third, how many Mau Maus were there?242

Fourth, how has Mau Mau been used to entrench domination or hegemony in post independent

Kenya-what Ben Sihanya calls ethnic apartheid, ethnic colonialism, ethnic clones and cloning in

Kenya.243 To illustrate, upon the attainment of independence, the various ethnic groups in Kenya

found expression in the major political parties of the time with KANU representing the larger

ethnic blocs and KADU representing the minority ethnic groups.

While President Jomo Kenyatta was expected to promote national unity and cohesiveness, he

engaged in a consolidation of his political base with the Kikuyu elites in what was formerly the

Central Province and improving on the infrastructure network that had been developed by the

colonial administration. The subsequent President Daniel Moi did not help matters as he

reinforced and continued the trend by officially entrenching political patronage and ethnic

jingoism.244 This was evident in the pouring of funds and projects in his native Rift Valley

province and giving of plum jobs to Kalenjins.245

Kibaki and the Government re-enforced Mau Mau practice by entertaining Lemma Ayanu, an

Ethiopian peasant, as General Mathenge.246

Mau Mau compensation case was the product of a long quest.247 Is it Mau Mau compensation or

British compensation to the tortured freedom fighters countrywide?

239 For instance, during the emergency, some children of loyal colonial chiefs were taken out of the theatre of

conflict to study at Fort Hare (Njonjo) or Makerere and LSE (Kibaki)….. 240 See Kipkorir on the influence of Alliance High School in Post independence economy....See the motif: Kipkorir:

their “parents had seen far”…. they built for future. 241 …. 242 cf. John Lonsdale (1990) “Mau Maus of the mind: Making Mau Mau and remaking Kenya.” Vol. 31, No 3,

Journal of African History. 243 See ES Atieno Odhiambo (1995) “The formative years, 1945-55,” in B. A Ogot & W.R Ochieng (eds) (1995,

1996) Decolonisation and Independence in Kenya, 1940-93, James Currey, London, EAEP, Nairobi, & Ohio UP,

Athens; E. S. Atieno Odhiambo & John Lonsdale (eds) (2003) Mau Mau & Nationhood: Arms, Authority and

Narration, Ohio University Press…. 244 Githu Muigai (1995) “Ethnicity and the Renewal of Competitive Politics in Kenya” in Harvey Glickman, ed.,

Ethnic Conflict and Democratization in Africa (Atlanta: ASA Press) at p. 162……… 245 Nelson Kasfir (1992) “Elections in Kenya” Africa Demos, July & August 1993, at 11. 246 Ochieng, Ngugi et al…..focus on Kikuyu Mau Mau heroes who had some national statue or name recognition.

…..

38

Can the Kenyan and British Governments facilitate the compensation of victims of forced labour

etc? The Constitution and transnational law recognize these rights, and the role of victims in

criminal and civil reparation processes. Moreover, can the British acknowledge and apologize for

these colonial injustices too?248

Can Mau Mau users and abusers accept that all Kenyan citizens deserve equity, equality, non

discrimination, non domination, non subordination and affirmative action, as appropriate? Can

President Kenyatta as President and as co-perpetrator and beneficiary apologize to non Kikuyu

Kenyans for the post independence and post colonial oppression, exploitation, inequity,

inequality, discrimination, domination and subordination?249

A section of the Mau Mau veterans have faulted the erection of the Mau Mau memorial statute at

Uhuru Garden’s, Nairobi. Cf- Gitu Kahengeri suggesting that the mau mau veterans be hosted in

the State House for a national celebration.250

I argue that Mau Mau is part of Kikuyu ethnic (neo)colonialism or ethnic capitalism (Ghai) and

ethnic aristocracy (Kagwanja).

There are incidents cases and incidents ethnic inequality, inequity discrimination and lack of

decent affirmative after independence: madharau,251

247 David M. Anderson (2011) “Mau Mau in High Court and the ‘lost’ British Empire archives. Colonial conspiracy,

or bureaucratic bungle?” 39, Journal of Imperial & Commonwealth History, 699-716. Cf. Kibaki and the

Government entertaining Lemma Ayanu as General Mathenge; On October 20, 2020, it was reported on Daily

Nation that Ms Miriam Muthoni wa Mathenge stated that she was gifted a 55- acre land for her participation in the

struggle for independence by President Jomo Kenyatta. She said that the Government has not really done enough to

recognize and appreciate the role of freedom fighters in the struggled for independence in Kenya. Ms Mathenge was

quoted saying, "to date, I have no access road to my home, neither do I have access to piped water in my homestead.

We rely on rainfall and a seasonal stream on the farm." This is despite the fact that the Mau Mau went through

harrowing ordeals to liberate Kenya from colonialist including torture, extrajudicial killings, murder, intimidation,

rape and marginalization. She was further quoted saying “"We were beaten up like animals. We witnessed deaths in

the forest and maiming of people who would be left to be eaten by dogs ... it was terrible and we suffered." See Irene

Mugo (2020) “We were betrayed, says veteran of Mau Mau war,” Daily Nation, October 20, 2020, Nairobi, at

https://nation.africa/kenya/news/we-were-betrayed-says-veteran-of-mau-mau-war-2485314 (accessed October 28,

2020). 248 Caroline Elkins (2005) Britain’s Gulag: The Brutal End of Empire in Kenya, Pimlico, London.; David Anderson

(2005) Histories of the Hanged: The Dirty War in Kenya and the End of Empire, W. W. Norton….; B.A Ogot

review of both books and also in B.A. Ogot (eds) “Britain’s Gulag,” review of the Histories of the Hanged: Britain’s

Dirty War in Kenya and the End of Empire in Kenya, by Caroline Elkins, Journal of African History, 46, No. 3 of

2005… 249 The TJRC Report recommended that an apology be made by the President on behalf of the Government for all

historical injustices. KNCHR report on 2017 electoral violence launched on 27/11/2018 seeks President Kenyatta's

apology limited to the subject of the report…….. 250 Moses Nyamori (2015) “Mau Mau memorial unveiled in Nairobi,” Standard Digital, Nairobi, 13/9/2015, at

http://www.standardmedia.co.ke/article/2000176118/mau-mau-memorial-monument-unveiled-in-

nairobi?articleID=2000176118&story_title=mau-mau-memorial-monument-unveiled-in-nairobi&pageNo=2

(aaccessed 21/9/2015)…. 251 Fernandes v. Kericho Liquor Licensing Court [1968] EA 640; Dodhia vs National & Grindlays Bank Ltd and

Another [1970] 1 EA 195;. Madhwa and Others v. City Council of Nairobi [1968] EA 406.See also post 1970 cases

39

Cf. Micere Githae Mugo, “I took my son by the hand...”252; ESAO (2003) “Matunda ya Uhuru,

The fruits of independence”……253

I took my son by Micere Mugo.....

Towards sunset/ we set out

for home/ my son’s little/

warm hand/ inside mine

he in his world/ me in mine

Mother, he asked

Do we have/ matunda ya uhuru

in our hut?

I laughed foolishly

Mother!/ Yes son

Do we have/ some?

Silence

May I eat one/ When we get there?

Move on son/ darkness is looming fast

around us.254

Jagjit Singh must have also been lamenting about Kenya in his powerful poem, “Portrait of the

Asian as an East African.” Singh uses Asian African male persona who laments bout a changing

Africa of the 1960s at the beginning of self-rule in post-independent Africa.255

for tribal inclusion and non discrimination against tribal hegemony (or domination) and subordination.....IFLAC

these cases here briefly and in detail under the Bill of Rights and Human Rights, Chapter 17 CODRALKA 1…cross

reference 252 Micere Githae Mugo (1973) “I took my son by the hand,” in David Rubadiri (ed) (1989) Growing Up with

Poetry: An Anthology for Secondary Schools, Heinemann Educational Books Ltd, Oxford, at 77-78,

at http://innovativelawyering.com/blogs/94-i-took-my-son-by-the-hand. Also Jonathan Kariara and Ellen Kitonga

(eds) (1976)An Introduction to East African Poetry, OUP, Nairobi....Micere Mugo....My mother’s song and other

poems.......Ben Sihanya (forthcoming 2021) Intellectual Property and Innovation Law in Kenya and Africa

(IPILKA 3). Poems, songs and music in Kenyan and African creativity, copyright, cultural politics, political

economy and constitutional democracy..... 253 ibid; ES Atieno Odhiambo (2003) “Matunda ya Uhuru, Fruits of Independence: Seven Theses on Nationalism in

Kenya,” in ES Atieno Odhiambo & J. Lonsdale (eds) (2003) Mau Mau and Nationhood: Arms, Authority and

Narration, Ohio University Press, Athens, 37-46, op. cit. … 254 Micere Githae Mugo (1973) “I took my son by the Hand,” in David Rubadiri (ed) (1989) Growing Up with

Poetry: An Anthology for Secondary Schools, African writers series, Heinemann Educational Books Ltd, Oxford,

London, at 77-78.

40

The persona laments;/ farewell my dear beloved illusions,

for I, too, would have liked to think

only the toes of Africa were infected256

but the cancer of colour/has gathered fresh victims now.

black surgeons, too, have prescribed new drugs257/ and we,

malignant cells,/ must fade away soon.

let me not see you now,/ ancestral spirits of my race,

in the posture of lawino,258/ lamenting sweetness that has turned sour,

for it shall be my western mind alone/ that must summon up an excuse

for the brownness of our sins.

and soon we shall be flying,/ unwelcome vultures all over the world,

only to unsheathe fresh wrath/ each time we land

we are the green leaves/ that must sprout no more,

for the roots have thrived/ on black silence

and false kindness of the white race.

waste no ceremony/ for the unintentionally corrupted;

lead the ram to altar/ and wash away the sins of history

2.18 Western influence and involvement in post-independence Kenya

Historians like Charles Hornsby have argued that Western influence played a major role in

founding of the Kenyan state.259 He contends that the large foreign investments and foreign

citizens living in Kenya at independence acted as stabilising forces, both for good and ill.

When Lonrho(reportedly) took over the ownership of East African Standard and the Tanzania

Standard, Kenyatta was unhappy because its sources of wealth were based in white-ruled

Rhodesia. Kenyatta latter gave in. The talk was that Ronald “Tiny” Rowland said to Kenyatta

255 Jagjit Singh (1971) “Portrait of the Asian as an East African,” in David Cook & David Rubadiri (eds) (1996)

Poems from East Africa, East African Educational Publishers, Nairobi, 156-159. Reviewed in Austin L.S

Bukenya.....Notes on EA Poetry, HEB, EAEP, Nairobi...Ben Sihanya (forthcoming 2021) Intellectual Property and

Innovation Law in Kenya and Africa: Poems, Songs and Music and Democracy, Liberty, Copyright and in Kenya

and Africa (IPILKA 3). Discuss under conquest state and colonisation...: How Asians came to Kenya, Uganda,

South Africa etc...... 256 Referring to Okot p’Bitek’s Song of Lawino in which a traditional African wife (Lawino) laments being ignored

who prefers Western values and clementine.....See Okoit p’Bitek......Song of Lawino and Song of Ocol 257 Asians had been discriminated against during white British colonisation. The Government of Kenyatta (1963-78)

and Idi Amin oppressed and exploited some of them….. 258 Referring to Okot p’Bitek, Song of Lawino… 259 Charles Hornsby (2012) Kenya: A History since independence, I.B. Taurus & Co Ltd, 6….. What of second

edition? Cf. Hornsby and the intellectual academic tourists of 2016, 2017, 2018.

41

“The paper is yours to do what you like with, just say the word.”260 Kenyatta nominated Udi

Gecaga, a family member to Lonrho Board.261

The contributions by the British finance, military support and advice actively contributed to the

establishment and survival of the Kenyatta Government after independence. Foreign aid

sustained Kenya’s economy since independence.

This, according to Hornsby, provided a buffer for the errors of its leadership and a safety net that

was guaranteed by Kenya’s pro-Western orientation. This pro-Western orientation has since

changed especially in the current Kenyan political leadership of Kenyatta II (K+).262 What has

been driving Kenya’s foreign policy including diplomatic relations in EAC, AU, with the West

in 2013 and 2014? Was it ICC and personal or ethnic interests? 263

2.19 Kenya: Post-colonial or neo-colonial state?

Is Kenya independent? dependent? interdependent? post-colonial? neo-colonial? Relate to the

key questions: social, economic, political, technological and to the four presidencies….264

Some scholars have argued that Kenya is a neo-colonial state; that is, it has attained formal

independence but is essentially still dominated in the political, economic, cultural, social, and

other spheres by the ex-colonial power or by other states265 like USA, China and other European

countries.

Kenya’s “post colonial” means that there was once a colonial power or historical connection

between colonialism and the current state of affairs. Immediately after independence, the

political elite in Kenya African National Union (KANU) led by Jomo Kenyatta dismantled the

260 The Editor (2010) “The early battles between editors and publicity- hungry politicians,” Daily Nation, Nairobi,

March 22, 2010 at https://nation.africa/kenya/news/the-early-battles-between-editors-and-publicity-hungry-

politicians--627866 (accessed October 8, 2020). 261 As a Director….. Udi Gecaga is the father of Jomo Gecaga, and also the ex-husband of President Uhuru

Kenyatta’s elder sister Jeni Wambui. Bethwel Mareka (BM) Gecaga, was the father-in-law to Jeni Wambui

Kenyatta……and was appointed to key state corporations…. 262 Starting from the Kibaki government, Kenya has started focusing on the East. Cf the Kenya-China multi-billion

deal, the Railway tender etc. What are the constitutional and economic implications or impacts? See

http://www.innovativelawyering.com/blogs/88-prof-ben-sihanya-on-the-kenya-china-multi-billion-deal (accessed

4/6/2014). See also Timothy Kaberia (2014) “Uhuru’s response sign of desperation,” The Star, 27/5/2014 at

http://www.the-star.co.ke/news/article-168686/uhurus-response-sign-desperation (accessed 4/6/2014). 263 Chapter 14 on conceptualization, problematisation and contextualization of Kenya African policy since 1963.

Cite Bonaya Godana Katiba collections; Andy Adede, Katiba Collections, JB Ojwang and Luis Francheschi, FD

Situma Foreign policy, international relations......... 264 Cf. Discussion of Constitution and State in Chapter 1, op. cit. 265 Colin Leys (1975) Underdevelopment in Kenya: The Political Economy of Neocolonialism, 1964-1971,

University of California Press, Berkeley, at 1-27…

42

Independence Constitution in order to implement the Kenyatta-Mboya-Nyerere theory of a

unitary state and a singular executive authority.266

What did 50 years of independence celebrations mean to most Kenyans?267 What do the annual

celebration of Madaraka, Mashujaa and Jamhuri days mean?268

There is an argument that Mau Mau survivors have been compensated by the British (on a

without prejudice basis). Who will compensate Kenyans who have suffered assassinations,

massacres, ethnic hegemony and other forms of ethnic apartheid since independence? When will

the freedom and compensation come?

Kenya inherited from the colonialists a political structure with a strong executive branch at the

expense of other democratic institutions. The two leading nationalist parties (KANU and KADU)

for instance were largely loose amalgamations of ethnically homogeneous, district-based

political associations under the leadership of local power barons.269 Kenyatta, who had been in

prison, did not participate in the establishment of such parties; this made it difficult for him to

control the parties.270 This prompted him to resort to the bureaucracy of Provincial

Administration. Through this he could exercise direct control.

Also define and conceptualise bureaucratic state, prebendal state (Richard Joseph who focuses

on comparative constitutional politics of Nigeria); authoritarian or totalitarian state; rent seeking

state; patrimonial state. On the foregoing, see the methodology on conceptualization of the

Constitution, state and government, law and development class 4. These only define certain

aspects of facets of the state under the generic, Ghaian and Sihanya reconceptualisation or

synthesis of constitution, state and government.

Patrimonialism through patronage became the new order of business with the state becoming the

single most important dispenser of national resources, rendering state control the primary means

of acquiring wealth.271 The role of political parties in democratization was rendered irrelevant

with the dissolution of KADU in 1964.

266 Githu Muigai (2001) Constitutional Amendment and the Constitutional Amendment process in Kenya 1964-

1992: A Study in the Politics of the Constitution, PhD Thesis, University of Nairobi; Githu Muigai, on dismantling

of the Kenya Constitution during Bomas, newspaper article…. 267 John Kamau (2013) “50 years on, Uhuru confronts the same mountains his father faced,” Daily Nation,

31/3/2014, at http://www.nation.co.ke/news/50-years-on-Uhuru-confronts-the-same-mountains-his-father-faced/-

/1056/2333546/-/qu7rr9z/-/index.html (accessed 3/6/2014). 268 In 2018, Moi Day was celebrated again without presidential or state ceremony. This was based on High Court

Justice George V. Odunga’s decision in Republic v. Cabinet Secretary for Internal Security ex parte Gragory

Oriaro Nyauchi & 4 Others, Judicial Review 292 of 2017 [2017] eKLR….. 269 Siegmar Schmidt, Gichira Kibara (2002) Kenya on the Path Toward Democracy?: An Interim Evaluation : a

Qualitative Assessment of Political Developments in Kenya Between 1990 and June 2002,Konrad-Adenauer-

Stiftung,Nairobi, at 5… 270 Ibid, at 5. 271 Ibid, at 5.

43

Kenyatta instigated numerous constitutional amendments that gave him sweeping executive

powers.272 Under KANU dictatorship and leadership under Moi 1978-2002...273 Moi in his quest

to consolidate power revitalized KANU through mandatory life membership for all MPs and

senior civil servants, establishing a powerful party disciplinary committee and through the

party’s invasion of electoral processes by introducing mlolongo or queue voting.274

2.20 National and transnational obligations after independence in Kenya, Uganda, Nigeria,

South Africa, and Africa

One of the major incidents of independence was that Kenya became a sovereign state.275 In 1964

it became a sovereign republic with power to control its destiny internally and in external

relations.

The challenges in the neo- or post-colony include meeting national obligations as well as

international responsibility.276 National obligations include protecting life, people and property

within the territory. These include securing equity and reducing or eliminating discrimination,

hegemony or preference based on ethnicity, regions, religion, gender or class. International

obligations include settling debts, implementing treaties entered into (by the state or former

colonial power), state succession, meeting human rights and environmental standards.

Provided that Kenya does not have a very clear and explicit foreign policy. In the Cold War era it

argued that its policy was non-alignment (and good neighborliness – or non interference). Since

independence Kenya has joined some supra-national bodies to consolidate its role as a member

of the international community. These include the United Nations (UN), Commonwealth,

African Union (AU), IGAD, COMESA and the East African Commission (EAC). These qualify

Kenya’s state sovereignty given that by virtue of the Constitution, international instruments that

Kenya ratifies bind the country to meet the obligations arising therefrom.. cf Article 2 (5) and

2(6) of the Constitution

272 Siegmar Schmidt, Gichira Kibara (2002) Kenya on the Path Toward Democracy?: An Interim Evaluation: a

Qualitative Assessment of Political Developments in Kenya Between 1990 and June 2002,Konrad-Adenauer-

Stiftung, Nairobi, at 6…… 273 Cf. (2002) “Two cheers to colonialism,” by the discredited author and (convicted) felon, Dinesh D Souza). 274 Godwin R. Murunga, Shadrack W. Nasong’o (2007) Kenya: The Struggle for Democracy, Zed Books Ltd,

London, at 278…. 275 Cf. popular sovereignty Art 1; and state sovereignty and sovereign equality of states: “Kenya is a sovereign

Republic….” (Arts 4(1)….) cf. 1963 and the 1969 Constitutions. UN Charter, 1945, AU Charter….Constitutive Act

of 11/7/2000…….. Vienna Convention on the Law of Treaties (VCLT), 1969, Vienna Convention on Consular

relations (VCCR), 1963, Vienna Convention on Diplomatic Relations (VCDR). 276 H.W.O. Okoth-Ogendo (1974) “National implementation of international responsibility: some thoughts on

human rights in Africa,” 10, East African Law Journal 1; Jackton B. Ojwang (1990) Constitutional Development in

Kenya: Institutional Adaptation and Social Change, African Centre for Technology Studies (ACTS), Nairobi; JB

Ojwang & Luis G. Franceschi (2002) “Constitutional Regulation of the Foreign Affairs Powers in Kenya: A

Comparative Assessment,” 46 J., African Law, 43.

44

The national basis of foreign policy. What is Kenya’s foreign policy? Generic (cf. USA; Nigeria,

South Africa, Egypt, Ghana… Is Kenya’s foreign policy explicit? Implicit?277 Kenya’s foreign

policy is guided and driven by a vision of “a peaceful prosperous and globally competitive

Kenya” with the mission to protect, promote and protect Kenya’s interests and image globally

through innovative diplomacy, and contribute towards just, peaceful and equitable world….278

Arguably, Kenya’s foreign policy takes a dependent approach mainly influenced by foreign

capital inflows. Notably, whatever constitutes Kenya’s foreign policy is the preserve of the

President in power, with the Ministry of Foreign Affairs simply being the facilitative and

coordinating arm of the President’s policy. Though Kenya’s foreign policy has been regularly

touted to include principles such as non-alignment and non-interference by external powers as

well as sovereignty, its policy is frequently dictated by economic interests and the need to have

more of foreign capital. Cf. the China-US relations…..

2.21 Constitutionally important dates in Kenya

Precolonial Kenya: 1500-1895? 1920?

Early travelers, visitors, explorers, discoverers, sailors,279 traders,280 fortune seekers,

missionaries,281 colonial anthropologists,282 colonial administrators.283

1920 - Kenya becomes a colony

1921 – Harry Thuku forms the Young Kikuyu Association which later draws a petition

containing grievances on labour, land and Kipande, which Africans had to carry.

March, 1922 - Harry Thuku is arrested and M.A Desai, President of the Indian Congress is

accused by the European press of instigating Harry Thuku.

September 1922 - Kamau wa Ngengi (later Johnstone Kamau and thereafter Jomo Kenyatta)

becomes a member of the Committee of the East African Association (EAA)… Choosing a name

that would be tribe neutral?

1924 - Harry Thuku stands his position that only elected Africans can genuinely represent

African interests.

277 Laws on citizenship, non-citizens, asylum, diplomatic and consular relations. Cf. Justice JB Ojwang & Luis G.

Franceschi (2002) 46, 1, “The Constitutional Regulation of the Foreign Affairs Power: A Comparative Assessment,”

Journal of African Law, Oxford, 43–58….Adra Korwa…..Oyugi (ed)…….cf. Macharia Munene…ES Atieno

Odhiambo on Munene……..in Kenya at the Beginning of the 21st Century. 278 … 279 The Peripluss of the Erythraean Sea. Cf. early writers in Nigeria, South Africa… 280 Tippu Tip. 281 See ES Atieno Odhiambo… etc. 282 ES Atieno Odhiambo, HWO Okoth Ogendo…… 283 Cf. HWO Okoth Ogendo……. Berman & Lonsdale………

45

1928 - Jomo Kenyatta starts the Kikuyu paper, Mwigwithania (The Reconciler)

1929 - Jomo Kenyatta departs for England to make personal representation about grievances of

the Kikuyu.

1931 - Harry Thuku is released from detention.

1934 - Kenya Land commission report closes the frontier between the European Highlands and

the African Land units. Africans are denied any rights in the White Highlands.

North Kavirondo Central Association is formed.

1935 - Harry Thuku breaks from Kikuyu Central Association (KCA) and forms Kikuyu

Provincial Association.

12/11/1937 - The Secretary of State for Colonies, Mr Ormsby-Gore, reaffirms that the White

Highlands in Kenya are exclusively for Europeans and that Africans and Asians cannot acquire

land there.

1938 - Jomo Kenyatta publishes his first book, Facing Mount Kenya.

Ukamba Members Association is formed.

The Akamba people march to Nairobi to protest against the Government policy of de-stocking

and their leader, Samuel Muindi wa Mbingu is deported to Lamu.

1940 - Kikuyu Central Association, the Ukamba Members Association (UMA), and the Taita

Hills Association are banned and their leaders arrested.

1944 - Eliud Mathu is nominated the first African member of the LegCo. Kenya African Study

Union is formed.

1946- Kenya African Study Union drops the word study from its name to become Kenya African

Union (KAU).

1947 - Makhan Singh and Chege Kiobachia lead the first strike by African workers in Nairobi.

KAU president Mr. James Gichuru steps down to make way for Jomo Kenyatta to become KAU

president.

The number of African members to LegCo is raised to four.

Kipande system is abolished and replaced by an identity card system. Who else?

1948 - Kenya, Uganda and Tanganyika form the East African commission.

Mau Mau freedom fight begins

1949 - Makhan Singh and Fred Kubai form East African Trade Union Congress in Nairobi to

fight for the rights of African workers.

46

1950 - KAU and The Kenya Indian Congress hold public meeting at Kaloleni Hall in Nairobi.

Trade unionist Makhan Singh’s resolution demanding for independence for Est Africa is carried.

Mau Mau is declared an illegal society.

Makhan Singh is tried by the High Court and detained as “an undesirable British subject”

20/10 1952 - The Governor, Sir Evelyn Baring declares a state of emergency. This followed the

killing of a loyalist Kikuyu chief, Waruhiu by Mau Mau freedom fighters.

The ‘Kapenguria Six’ are arrested by the colonial security forces

26/01/1953 - The Kapenguria trial begins

8/4/1953 - The Kapenguria six-Jomo Kenyatta and fellow freedom fighters, Fred Kubai, Achieng

Oneko, Paul Ngei, Bildad Kaggia and Kung’u Karumba are found guity and sentenced to seven

years in prison with, hard labour.

1954 - A prominent Mau Mau leader ‘General China’ Waruhiu Itote is captured by Colonial

Government forces and imprisoned at Lokitaung.

April 1954 - Colonial Government mounts “Operation Anvil” against Mau Mau elements in

Nairobi and arrests 27,000 Kikuyu who are put into detention camps

3/9/1954 - Field Marshal Olekisiso, the leader and organiser of Mau Mau in the Rotin division of

Maasailand and second-in-command to Dedan Kimathi since the arrest of General China, is

killed in an ambush in Narok.

1956 - “Field Marshall” Dedan Kimathi of Mau Mau forces is shot at, wounded and captured.

The trial of Dedan Kimathi begins before the Supreme Court.

1957 - Dedan Kimathi, the Mau Mau leader, is hanged at Kamiti Prison aged 34.

The state of emergency ends

March 1957 - Elections for eight African Members of LegCo are held for the first time.

1958 - Mr Oginga Odinga asks questions in the LegCo about Mzee Jomo Kenyatta in prison.

Demands for a constitutional conference and release of Mzee Jomo Kenyatta are made

1959 - There are now twenty-five African members, fifteen Asians, five Arab and forty six

Europeans in the LegCo representation.

Pan African Movement of East and Central Africa (PAFCSA) is founded. Take on how members

47

grew for the races absoluty LegCo size.......

March 1959 - Nairobi People’s Convention Party is formed and “Release Kenyatta” campaign

launched.284

14/4/1959 - Mzee Kenyatta and his companions complete three-quarters of their sentence of

imprisonment and become eligible for release.

A restriction order is immediately applied and Mzee Kenyatta is detained at Maralal.

12/01/1960 - The state of emergency and the emergency regulations declared in 1952 ends after

7 years of war against Mau Mau.

18/01/1960 - Kenya constitutional conference starts at Lancaster House in London.

Mr Macleod, Secretary of state for the colonies, refuses to admit Mr. P.M. Koinange as a second

special adviser to African delegation.

The African elected members led by Mr. Ronald Ngala and Mr. Tom Mboya boycott the

Lancaster conference. Date?

25/01/1960 - Kenya constitutional conference at Lancaster House ends and there is full

attendance at the talks.

March 1960 - Kenya African National Union (KANU) is formed.

14/5/1960 - Mzee Jomo Kenyatta who is still in prison is elected, in absentia, President of the

newly formed party, KANU, while Mr. James Gichuru is elected acting president until Kenyatta

is released.

14/03/1961 - KADU Cabinet ministers Mr. Ronald Ngala and Mr. Taitta Towett, protest against

Governor Patrick Renison’s refusal to release Mzee Jomo Kenyatta. See also 1958 Oginga

Odinga’s struggle to have Kenyatta released and restored into civil society; and Mboya’s

campaign in March 1959 above.

12/07/1961 - Mr JD Shah, a member of the Legislative Council (LegCo), criticises the existence

of the European and Asian hospital authorities and calls for abolition of racial segregation in

schools.

Jomo Kenyatta criticises KADU’s majimbo policy in his first speech since becoming KANU

president.

284 OO and is “restored Kenyatta to civil society” from a pariah status: and tell over each other in the

process…..Kenyatta …Uhuru na Kenyatta….Cf. Kiano etc “we are the leaders of the people….”.....to what effect?

Kenyatta as reconcile, “Muigwithania”…again? Anyang’ Nyong’o (1989) “State and society in Kenya: The

disintegration of the nationalist coalitions and the rise of presidential authoritarianism, 1963-1978,” African Affairs,

88, 351 (April 1989)

48

24/11/1961 - Mr Reginald Maulding, the British colonial secretary, arrives in Kenya to hold talks

with Kanu and KADU officials on the formation of a coalition government.

12/01/1962 - Mzee Jomo Kenyatta is elected unopposed in a by-election after Mr Kariuki Njiri

Legco member for Fort Hall, vacates his seat for him.

14/02/1962 - The Lancaster House Constitutional Conference in London starts with KANU

President Jomo Kenyatta demanding in his opening speech that the conference must name a date

for Kenya’s full independence.

5/03/1962 - The Kenya constitutional conference in London starts a detailed examination of the

Majimbo (regionalism) proposals of the KADU.

2/4/1962 - Colonial Secretary Reginald Maudling presents Kenyan political leaders with his final

23-point draft framework for Kenya’s constitution in London and gives them 48 hours to make

up their minds about it.

5/4/1962 - KANU and KADU form a coalition government.

18/06/1962 - Mr. Bildad Kaggia, the chairman of KANU’s Naivasha Sub-branch, criticises Mr.

Bruce Mackenzie’s proposal to settle 2,000 Kikuyu families in Tanganyika, describing the move

as indirect deportation.

19/11/1962 - Mr Paul Ngei threatens to leave KANU with his 750,000 Kamba supporters and

form a new party following a disagreement with party officials.

2.23 Independent Kenya 1963-2017-20 and Beyond

Major events, processes, actors, dates, constitutional provisions and quotes...Kenya,

Nigeria, South Africa, Uganda....

1/6/1963 – internal self-government; Kenya’s sovereign authority is qualified. British monarchy

still controls international affairs.

12/12/1963 – independence; much greater authority to determine destiny. However, it is still

technically a dominion of the UK. Between 12/12/1963 and 12/12/1964 Kenya is technically a

monarchical state. There’s a Prime Minister (Jomo Kenyatta) who exercises some executive or

efficient powers. The Governor-General (Malcom MacDonald) exercises ceremonial powers on

behalf of the Queen Elizabeth. PM nominates while Governor-General appoints the cabinet.

12/12/1964 – Kenya becomes a sovereign republic in terms of the Constitution. Post of

Governor-General is abolished. President is head of government and head of state. See ss. 1, 1A,

23, 24, etc of the Constitution of Kenya, and Arts. 1, 2, 3, and 4 of the Draft Constitution of

49

Kenya 2004. Constitution of Kenya 2010: referendum on August 4, 2010; promulgation on

August 27, 2010….

Post- 2010 calls for a referendum by CORD and the Council of Governors.285

Also consider the following dates: 1966, 1969, 1972, 1975, 1982, 1991, 1992, 1997, 2002, 2007,

2008, 2010, 2012, 2013, 2014, 2015 (5 years since promulgation; milestones to review;

Commission for the Implementation of the Constitution (CIC) to hand over-why? to who?

KLRC? Prospects? Kenya Law Reform Commission (KLRC) is within A-Gs; implementation;

referendum?)….286

1966- A left-wing faction of KANU led by Oginga Odinga and Bildad Kaggia defected from

KANU and formed the Kenya People’s Union (KPU)

1969 – The first single-party elections in Independent Kenya were held with KANU as the sole

party. Tom Mboya assassinated and Oginga Odinga was arrested and KPU leader deteained

.KPU Banned

1975 – The killing of charismatic politician JM Kariuki.

1982 – There was an unsuccessful coup against President Moi which led to a more autocratic

regime. KANU officially declared Kenya a one-party state.

1991 – The Forum for Restoration of Democracy (FORD) is formed then banned and Oginga is

arrested once again. There was a repealing of section 2A that created room for multi-party

elections.

1992 – The first multiparty elections in Kenya were held with Moi winning the Presidency.

1997 – The second multiparty elections were held and there was the introduction of the Inter-

Parliamentary Party Group (IPPG).

2002 – NARC coalition under Mwai Kibaki’s DP with the support of LDP led by Raila Odinga

triumphed over KANU’s candidate Uhuru Kenyatta, considered a Moi project, marking the end

of Nyayoism.

2007 – Kenya conducted elections which led to post-election violence after claims of electoral

fraud.

285 Standard Digital News (2015) “What the launch of Okoa Kenya says about our democracy,” Standard,

24/4/2015, Nairobi at: http://www.standardmedia.co.ke/article/2000159532/what-the-launch-of-okoa-kenya-says-

about-our-democracy (accessed October 2, 2020). 286 E.g. major transitional elections under the Constitution of Kenya 2010; Supreme Court’s controversial decision

on Raila Odinga (2013 and 2017); Peter Munya, Mary Wambui; ICC trials; contest on implementation of the

Constitution e.g. devolution, colonialism and ethnic chauvinism in government appointments, CORD’s request for a

national dialogue on the current crises; threats to governors; referendum etc..

50

2008-Kenya formed a new coalition government with President Kibaki and Prime Minister Raila

Odinga after post-election violence following the amendment to the Constitution creating the

premier office.

2010-Kenya adopted or promulgated the new constitution 2010.

2012-The International Criminal Court (ICC) indicts 6 Kenyans for crimes against humanity

following the 2007-2008 post-election violence. Britain acknowledges the torture of Mau Mau

veterans by its colonial government.

2013 – Uhuru Kenyatta wins a disputed election in the first elections under the new Constitution

2010. Raila Odinga contests the decision in the Supreme Court which confirms Kenyatta as the

validly elected President.

2014 – The ICC prosecution drops charges against Uhuru Kenyatta citing insufficient evidence.

2015 – Fifth year of the implementation of the Constitution and call for a referendum by the

Council of Governors;

2016 – ICC charges against William Ruto dropped. ICC judges describe the trial process as

tainted by witness interference and political meddling hence a weakened prosecution case.

Kenyatta’s (K1) administration is in crisis: lawlessness, paralysis, gridlock, dysfunctional;

teachers strike, disobeying court orders to pay teachers, closes schools; insecurity; high cost of

leaving; Kenya shilling loses big against world major currencies; Kikuyuism in government-

excluding other tribes; Kikuyu ethnic arrogance and impunity by Moses Kuria, Ngunyi

encouraged and suffered; corruption and favouritism by punishing some, suspending and

shielding Waiguru and shielding ethnic affiliates e.g. on NYS lose of at least KES 791 million.

Police brutality sanctioned by the Jubilee government; reckless shooting of opposition supporters

during anti-IEBC protests. No police officers prosecuted for the selected killings; armed militia

reemerging? Mungiki? Ethnic cleansing- cf Kimani Ngunjiri calling on Luos to leave Nakuru.

Debate on hate speech….

2017: Second General Elections under the 2010 Constitution; Supreme Court nullifies

presidential elections; protracted electoral and political crisis.

October 26 resistance.

March 2018 handshake or rapprochement between Raila Odinga of NASA and Uhuru Kenyatta

of Jubilee Party.

2019: Demolition of buildings on riparian land.

51

2019: Lifestyle audit announced by President Uhuru Kenyatta not fully implemented....

Anti-corruption.... debates on prosecutions targeting those not affiliated to Uhuru Kenyatta:

untouched or manipulated include Managed Equipment Scheme (MES)….at least 38B, without

contracts…..expensive, unnecessary health equipment…Mafya tender…..NYS 1, NYS 2

scandals……

Muder of Sharon Otieno, Monica Kimani, Maribe and Mr Irungu charged, both had been close to

Jubilee leadership, Migori Governor Okoth Obado charged.....One third gender formula,

principle, and rule in parliament again

10/10/2019 gazzetted as a public holiday following a High Court Judgment that reinstated it in

2017.

23/3/2019- Official release of the 2019 Building Bridges Initiative Report – Dubbed Building

Bridges Initiative (BBI).287

Among the recommendations proposed by the Taskforce in BBI Report, 2019 was that:

“President Uhuru Kenyatta should commission an official history of Kenya whose production

will be led by an Office of the Historian resident in the National Archives. This history should go

back 1000 years and provide an accurate and definitive account of the settlement of Kenya by the

present inhabitants; the political, economic, and cultural heritage of all ethnic groups in Kenya;

the role of women throughout history; an account of the international slave trade and colonialism;

the anticolonial struggles; the post-colonial history of every part of the country; and

contemporary histories including those of urban areas and newly formed communities in

Kenya.”288

2020- COVID-19 pandemic and its effects, debates on the Building Bridges Initiative (BBI),

Chief Justice David Kenani Maraga’s advisory to President Uhuru Kenyatta for the dissolution

of the National Assembly for failure to pass one-third gender rule. Further, Hon John Waluke,

Sirisia MP was sentenced to 67 years in prison on corruption charges. Mr Waluke together with

his co-accused were later freed on a cash bail of KSh 10 Million and KSh 30 million,

respectively, in September 2020.289

Additionally, the Nairobi Metropolitan Service (NMS) was created on March 18, 2020, after the

signing of the Deed of Transfer of Functions between former Nairobi City County Governor

287 Carolyne Tanui (2020) “President Kenyatta Arrives At Bomas For BBI Report Launch,” Capital News, October

26, 2020, Nairobi, at https://www.capitalfm.co.ke/news/2020/10/president-kenyatta-arrives-at-bomas-for-bbi-report-

launch/ (accessed November 3, 2020). 288 Presidential Taskforce on Building Bridges to Unity Advisory (2019) Building Bridges to a United Kenya: From

a Nation of Blood ties to a Nation of Ideals, Govern Printers, Nairobi, 102. 289 Joseph Wangui (2020) “Waluke, Wakhungu freed on bail after three months in jail,” Business Daily, Nairobi,

September 29, 2020, at https://www.businessdailyafrica.com/bd/economy/waluke-wakhungu-freed-on-bail-after-

three-months-in-jail-2374204 (Accessed February 16, 2021).

52

Mike Sonko, and President Uhuru Kenyatta. There were also debates on the Handshake and

constitutional amendment process and proposals that resulted therein. Further, referendum

debates and 2022 transition, and President Uhuru Kenyatta’s succession were increasingly in

focus. Moreover, there was the third-generation revenue formula ‘Third Basis for Revenue

Allocation’ impasse at the Senate with Senators failing to agree on at least ten (10) occasions.290

Relatedly, the Building Bridges Initiative (BBI) Report of the Steering Committee on the

Implementation of the Building Bridges to a United Kenya Taskforce, 2020 submitted on

October 21, 2020, and officially launched on October 26, 2020 at Bomas of Kenya. The BBI

Report 2020 proposes policy, constitutional, legislative and administrative reforms...291

2021- IEBC finalized the verification of more than 1.4 million signatures supporting the BBI

Report, 2020. The Constitution of Kenya (Amendment) Bill, 2020 is submitted to all the 47

county assemblies. The Bill was subjected to public participation then passed in the relevant

County Assemblies as shown in the Annex …292

January 27, 2021- inquiry by Parliament into the KEMSA COVID-19 items procurement

scandal. It was estimated that at least KShs 7.8 Billion was lost through flouted procurement

rules, and illegally awarded tenders.293

As at February 16, 2021, at least three (5) county assemblies including Kisumu, Siaya,

Homabay, West Pokot and Busia county assemblies have passed the Bill with more counties

expected to follow suit, while Baringo County Assembly being the only county so far that failed

to pass the Constitution of Kenya (Amendment) Bill, 2020. This has however been challenged

due to lack of adequate public participation.294

290 Hillary Orinde (2020) “Uhuru commits Sh50b for counties to end revenue impasse,” Standard, Nairobi,

September 15, 2020, at https://www.standardmedia.co.ke/nairobi/article/2001386496/uhuru-commits-sh50b-for-

counties-to-end-revenue-impasse (accessed February 22, 2021). 291 See the Building Bridges Initiative (BBI) Report 2020, at Star (2020) “The Building Bridges Initiative Report,”

Star, October 21, 2020, at https://www.the-star.co.ke/news/2020-10-21-download-the-building-bridges-initiative-

report/ (accessed February 12, 2021); Ben Sihanya (forthcoming 2021) “Reforming and Implementing the Kenyan

Constitution Beyond the 14th Anniversary,” Sihanya Mentoring and Prof Ben Sihanya Advocates, Nairobi and Siaya. 292 …. 293 Edwin Mutai (2021) “Auditor-General feels the heat over Kemsa scandal report error,” Business Daily, Nairobi,

January 27, 2021, at https://www.businessdailyafrica.com/bd/economy/auditor-general-kemsa-scandal-report-error-

3269840 (accessed February 12, 2021). 294 KTN News (2021) “A section of Baringo residents and their MCAs file case over rejection of BBI Bill,” February

16, 2021, at https://www.standardmedia.co.ke/ktnnews/video/2000205811/a-section-of-baringo-residents-and-their-

mcas-file-case-over-rejection-of-bbi-bill (accessed February 16, 2021).

53

... Let wisdom flow from the Oracle and back in class through books, articles, online, in the

Oracle’s Shrine, and in appropriate fora…

© Prof Ben Sihanya, JSD (Stanford), Revised 27/2/2013; 26/9/2013; 14/6/2014; 14/10/14;

16/02/15; 16/06/15; 31/08/2015; 10/2/2016; 29/6/2016; 14/4/17; 10/4/2018; 8/2/2019; 1/3/2019;

28/6; 4/7; 17/10; 18/10; 13/2/2020; 8/10/2020; 9/10/2020; 18/10/2020; 27/10/2020; 3/11/2020;

12/2/2021; 16/2/2021; 22/2/2021

email: sihanyamentoring@gmail.com; info@sihanyaprofadvs.co.ke; (use both)

url: www.innovativelawyering.com; www.sihanyaprofadvs.co.ke