1

CHAPTER 4

PARTICIPATION AND REPRESENTATION IN KENYA AND AFRICA

This Chapter may be cited as: Ben Sihanya (forthcoming 2020) ―Participation and

Representation in Kenya and Africa,‖ in Ben Sihanya (2020) 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.

4.1 Participation and Representation as a Component of Sovereignty in Kenya and Africa1

Participation and representation are closely linked to the concept of the people and popular

sovereignty in Kenya and Africa. They address substantive and procedural rights and liberties.

Significantly, Afro-Kenyan constitutional democracy and governance under the 2010

Constitution and relevant constitutions is supposed to be through direct participation and

representative or indirect through elections…Constitution of Kenya 1969 was founded on

representative democracy.

Sovereignty is the claim to be the ultimate political authority, subject to no higher power as

regards the making and enforcement of political decisions. It is the principle that establishes the

nation-state as an independent actor within the international system. It is noteworthy that for

states to claim sovereignty, the structure of the international system is by definition anarchic. The

culmination of the process of establishing the principle of statehood can be traced back to the

Treaty of Westphalia 1648.2

We adopt an Afro-Kenyanist perspective, theorizing and practice in analyzing participation and

representation in Kenya and Africa. We review the experience under successive constitutions

and administrations, including the Constitutions of Kenya (2010), South Africa (1996), Uganda

(1995), and Tanzania (1977 and Draft Constitution, 2014)3.Why and how have Kenyan debates

under the Building Bridges Initiative (BBI) 2019 and 2020 addressed public or popular

participation and representation including Mixed Member Proportional Representation(MMPR)

into the future?4

1 Kenya under the 2010 Constitution is a participatory and representative democracy. Meaning? Significance? Thus,

even after electing representatives Kenyans still have the right and liberty to participate in constitutional, regulatory,

policy and administrative processes. Under the 1969 Constitution, it was essentially a representative democracy. See

also CODRALKA 1 Chapter 1 on Regulating and Administering Constitutional Democracy in Kenya and Africa;

and Chapter ….. on Regulating and Administering (basic, university, higher, legal education and TIVET?) in Kenya

and Africa. The US is largely a representative democracy. Greece was largely participatory by the standards of its

day. But the population and territory was small. More importantly, ‘‘person‖ meant white race, male, free (not a

slave)…..The Greece of the time would not be a constitutional democracy by contemporary standards….. 2 What are the objectives and outcomes of the Peace of Westphalia? A series of peace treaties signed between May

and October 1648 in the Westphalian cities in Germany largely ending the European wars of religion including the

Thirty years of War. The wars had killed about 8 million people. 3 Alawi Masare (2014) ―Tanzania Draft Charter Proposes Federal System, Vote Challenges,‖ Bloomberg, Tanzania,

January 29, 2014, at https://www.bloomberg.com/news/articles/2014-01-29/tanzania-draft-charter-proposes-federal-

system-vote-challenges (accessed November 10, 2020). 4 Cf. BBI Report 2019, 2020; debate on amending the constitution of Kenya 2010 in the BBI context….

2

In modern international law, the principle of (external) sovereignty which goes hand in hand

with non-intervention is embodied in Art 2(7) of the UN Charter which provides as follows:

―Nothing contained in the present Charter shall authorize the United Nations to intervene in matters

which are essentially within the domestic jurisdiction of any state or shall require the Members to

submit such matters to settlement under the present Charter; but this principle shall not prejudice the

application of enforcement measures under Chapter VII.‖5

Constitutional scholars including Prof Ben Nwabueze of Nigeria, Prof Issa Shivji of Tanzania,

and Prof Ben Sihanya of Kenya have clarified that popular sovereignty, which now undergirds

the Constitution of Kenya 2010, has three parameters: First, it entails the constitutive power

including constitution making, constitutional amendment. Second, it is the power to elect,

impeach or recall governors. Third, it is the power to monitor and evaluate government.6

All these powers of electing, impeaching, recalling, constitution making and amendment,

monitoring and evaluation of government repose in the people, since sovereignty belongs to the

people in a constitutional democracy, as provided for by the Constitution 2010.

4.2 Representation through the electoral system in Kenya and Africa

Representation is the action of speaking or acting on behalf of someone. Chapter 7 of the

Constitution of Kenya provides for representation of the people through the electoral system.

Election is part of sovereignty and constitutional government in Kenya. According to Prof Joel

D. Barkan an expert on African political systems, ―elections are but one event in the long process

of establishing a political culture and institutions supportive of democratic rule.‖7 As stated

earlier, elections are part of the three pronged typology on popular sovereignty under

constitutional government.

4.2.1 Principles of Kenya’s electoral system

The electoral system in Kenya is expected to comply with the following principles:8

(a) freedom of citizens to exercise their political rights under Article 38;

(b) not more than two-thirds of the members of elective public bodies shall be of the same

gender;

(c) fair representation of persons with disabilities;

(d) universal suffrage based on the aspiration for fair representation and equality of vote;

and

(e) free and fair elections, which are--

5 Cf. non indifference under AU‘s constitutive instruments.

6 See Ben Nwabueze (1974 Presidentialism in Commonwealth Africa , C. Hurst & Nwamife, London & Enugu

7 Joel D. Barkan (1993) ―Kenya: Lessons from a flawed election,‖ Volume 4, Number 3, Journal of Democracy 85-

99. 8 Articles 81, 86 of the Constitution. See also Chapter 2 of CODRALKA (Section on the Bill of Rights…)…;

Chapter 22 on Constitution Making, Amendment, Interpretation, Implementation in Kenya and Africa.

3

(i) by secret ballot;

(ii) free from violence, intimidation, improper influence or corruption;

(iii) conducted by an independent body;

(iv) transparent; and

(v) administered in an impartial, neutral, efficient, accurate and accountable manner.

Kenya has made significant steps to ensure that these electoral principles are upheld in our

constitutional democracy. However, there is still more that needs to be done by the relevant

institutions, officers and the civil society in order to eradicate divisive elections, ethnic

antagonism, to uphold inclusivity, transparency and accountability during elections, the rule of

law, equity and fairness in representation.9

These can be achieved through various measures including strengthening the institutional and

legal framework, constitutional reforms, and amendments as proposed in the BBI 2020 Report.

The BBI 2020 Report recommends the restructuring of the IEBC to ensure its effectiveness, and

to allow political parties to nominate commissioners to the Independent Electoral and Boundaries

Commission (IEBC) through an amendment of the IEBC Act, 2011 and the relevant electoral

laws.10

Some of the current IEBC commissioners including Chairperson Wafula Chebukati are

already opposed to the complete overhaul of the IEBC as proposed under the BBI 2020 Report,

and debates.11

4.2.2 Conceptualising electoral systems in Kenya and Africa

How can the electoral system secure equality of the vote and ensure that every vote counts? That

universal adult sufferage on a common role is real…? What is the meaning and significance of

the …BBI debates: one person, one vote; one person, one vote, one shilling; one person, one

vote, one kilometre? Consider Articles 81, 89, 90, 97, 98, 177…; and Art. 43, Chapter 12 on

public finance ….

Conceptually, there are two main types of electoral systems: open list system and closed list

system. An open list system is where voters are given a proportional party-list to choose from,

and hence they have influence in the order in which a party‘s candidates are elected.12

In a closed list system, only active members, party officials or consultants select and determine

the candidates who are placed in the party list.

Relatedly, there are other facets of electoral systems linked to the two above. First past the post

(FPTP) refers to the electoral system used to elect Members of Parliament (MPs) to Westminster.

9 Building Bridges Initiative (BBI) 2020 Report at

https://nation.africa/resource/blob/2486392/88e5205129241296af3755acd99809c1/bbi-report-data.pdf (accessed

November 20, 2020). 10

Building Bridges Initiative (BBI) 2020 Report at https://www.bbi.go.ke/legislative-proposals (accessed November

20, 2020). 11

Moses Odhiambo (2020) ―IEBC unveils own reforms, opposes BBI's proposed overhaul,‖ The Star, Nairobi,

October 28, 2020, at https://www.the-star.co.ke/news/2020-10-27-iebc-unveils-own-reforms-opposes-bbis-

proposed-overhaul/ (accessed November 10, 2020). 12

Alina Rocha Menocal (2012) ―Why electoral systems matter: an analysis of their incentives and effects on key

areas of governance,‖ Overseas Development Institute, at https://www.odi.org/sites/odi.org.uk/files/odi-

assets/publications-opinion-files/7367.pdf (accessed 24/10/2019).

4

It is used in Canada, India, United Kingdom, among others.13

Basically, it is the system which

voters indicate on a ballot the candidate of their choice, and the candidate who receives the most

votes wins.

In a Proportional Representation (PR) electoral system, a candidate and/or political party wins

seats in proportion to the percentage of total votes they receive in an election.14

PR systems that

are commonly used can further be categorized into three: First, party-list Proportional

Representation. Second, single transferable vote (STV).

Where and how does the Constitution of Kenya 2010 address (mixed member) proportional

representation (MM)(PR)?....Article 90(1) states:

―Elections for the seats in Parliament provided for under Articles 97(1) (c) and 98 (1) (b), (c) and (d), and

for the members of county assemblies under 177 (1) (b) and (c), shall be on the basis of proportional

representation by use of party lists.‖

And Article 90(3) states:

―The seats referred to in clause (1) shall be allocated to political parties in proportion to the total number of

seats won by candidates of the political party at the general election.‖

Third, mixed member proportional representation (MMPR).15

Party-list system is where political parties form a list of candidates, and seats are won in

proportion to the percentage of votes received. In other versions of the system, candidates are

voted on directly with each vote also being counted towards their affiliated party.16

In Single Transferable Vote (STV), voters rank candidates according to their order of preference.

If a voter‘s first candidate is eliminated, his or her vote is then reassigned to other preferred

candidates on their list based on rules of the electoral system.17

In mixed member proportional representation (MMPR), each voter makes two selections on a

ballot: one vote for a candidate and a separate vote for a party. Some seats are first filled by

popular candidates with a high percentage of votes. The remaining seats are then filled in line

with each party‘s percentage of the total so they obtain proportional representation.18

Does Proportional representation work better in a parliamentary than in a presidential system?

But the political parties must be organised, efficient and equitable or fair.

MMPR can work in a parliamentary, a presidential and a hybrid system. Some seats are allocated

to parties, and some seats are contested one the basis of the credentials of the individual

13

Electoral Reform Society, at https://www.electoral-reform.org.uk/ (accessed 24/10/2019). 14

Joseph F. Zimmerman (1994) ―Alternative Voting Systems for Representative Democracy,‖ Vol. 27, No. 4,

Political Science and Politics…. 15

This is the open nomination or party primary system….that existed at independence and was limited during the

single KANU party rule (1969-1991). It was reformed under the 2010 Constitution which retains FPTP in all the six

(6) electoral seats. The debate is 2020 and BBI debate is on the party list…See below 16

Ibid. 17

Ibid. 18

Ibid.

5

candidates. It is more complex, but better especially where party politics is neither efficient nor

equitable like in Kenya and Africa.19

Prof Chege argues:

―In addition, Professor Nyong‘o makes the case for a party list proportional representation. Again

this is a sound proposal.‖ Under it party legislative strengths roughly reflects the percentage of

votes cast for the respective parties. Such representation also tends to be more gender and

minority friendly than first past the post majority system. Its drawbacks, as we can see from

South Africa, is that parliamentarians seek to serve20

and please the party that nominated them

more than the constituency that allocated them - ―if any.‖

Prof Chege adds:

―For that reason, Kenya might consider the Mixed-Member Proportional Representation (MMPR)

system under which voters get two votes: one to choose the representatives of their single seat

constituency, and the other for a political party. In my estimation, Lesotho presents the best

example under which one ballot is used to elect the constituency MP, and to indicate party

affiliation, the latter being then used to distribute non-constituency seats to parties in proportion

to the ballots cast for the. Party lists are publicly distributed prior to the polls.‖21

The Building Bridges Initiative (BBI) Report 2020 proposes some key amendments to Chapter 8

of the Constitution of Kenya 2010, First, the BBI 2020 Report proposes the restructuring of the

National Assembly by a proposed amendment to Art. 97 to secure the representation of the

special interest groups, especially women, persons with disability (PWDs), and the youth….22

The debate on the BBI Draft Constitution of Kenya (Amendment) Bill 2020 focus on the

restructuring of the membership of the National Assembly in at least three ways. First, to 360

members elected by registered voters from the two hundred and ninety (290) constituencies.

Second, this is to cure the inadequacies of the First Past the Post (FPTP) system and ensure equal

representation and equity (Arts 81, 27….). Third, it is also to ensure that Kenya attains the

constitutional requirement that electoral boundaries should progressively reflect the equality of

the vote, registered voters, voter turnout (Article 81), voter population quota and land mass (e.g.

North Horr constituency) within the electoral boundaries (Art. 89).

Relatedly, BBI also recommends the inclusion of the Government in Parliament through creation

of the post of a Leader of Official Opposition under Article 97 who would also be a member of

the National Assembly, Cabinet Ministers (from Cabinet Secretaries) who are not members of

19

Cf. Prof Michael Chege (2019) ‗‘Foreword‖ in Peter Anyang‘ Nyong‘o, Presidential or Parliamentary

Democracy in Kenya? Choices to be made, Booktalk Africa, Nairobi, 7-10. Cf. other works and presentations by

Prof Michael Chege…Dr Patrick O. Asingu, of the Department of Political Science and Public Administration,

University of Nairobi… 20

…. 21

…. 22

Building Bridges Initiative (BBI) 2020 Report at

https://nation.africa/resource/blob/2486392/88e5205129241296af3755acd99809c1/bbi-report-data.pdf (accessed

November 20, 2020).

6

the National Assembly, and an Attorney-General as an ex-officio member of the National

Assembly.23

Second, the BBI 2020 Report proposes to restructure the composition of the Senate by a

proposed amendment to Article 98, Constitution of Kenya 2010 to ensure inclusivity in terms of

gender balance for the realization of the two-thirds gender rule under Arts. 27(8), 81(b) as read

with Art. 96(1) Constitution of Kenya 2010.24

The proposed changes in the BBI 2020 Report if

passed, approved and implemented, means that will have an additional 47 members (with one (1)

man and one (1) woman) being elected from each of the 47 counties.25

Third, the Building Bridges Initiative (BBI) 2020 Report recommends the restructuring of the

composition of the County Assembly under Art. 177 Constitution of Kenya 2010. The Report

proposes an amendment to Art. 177 to introduce the nomination of candidates through a party list

rather than the number of seats won, as is the practice currently. The BBI 2020 Report also seeks

to align the terms of the MCAs to the election cycle.26

4.2.3 Elections under the Constitution of Kenya 2010

Article 38 of the Constitution of Kenya 2010 provides:

―(1) Every citizen is free to make political choices, which includes the right— (a) to form, or

participate in forming, a political party; (b) to participate in the activities of, or recruit members

for, a political party; or (c) to campaign for a political party or cause. (2) Every citizen has the

right to free, fair and regular elections based on universal suffrage and the free expression of the

will of the electors for— (a) any elective public body or office established under this

Constitution; or (b) any office of any political party of which the citizen is a member. (3) Every

adult citizen has the right, without unreasonable restrictions— Constitution of Kenya, 2010 29 (a)

to be registered as a voter; (b) to vote by secret ballot in any election or referendum; and (c) to be

a candidate for public office, or office within a political party of which the citizen is a member

and, if elected, to hold office.‖

Article 38 of the Constitution grants every citizen the freedom to make political choices.

Furthermore, every citizen has a right to free, fair and regular elections based on universal

suffrage and the free expression of the electors. It therefore follows that every adult citizen has

the right, without unreasonable restrictions, to be a registered voter; to vote by secret ballot in

any election or referendum; and to be a candidate for public office, or office within a political

party of which the citizen is a member and, elected, to hold office.

23

Building Bridges Initiative (BBI) Report 2020, at https://www.bbi.go.ke/post/bbi-report-october-2020 (accessed

November 10, 2020). 24

Ibid. 25

Moses Odhiambo (2020) ―BBI gender plan: Counties to pick 47 women senators,‖ The Star, Nairobi, October 19,

2020, at https://www.the-star.co.ke/news/2020-10-19-bbi-gender-plan-counties-to-pick-47-women-senators/

(accessed November 10, 2020). 26

See the debates on the BBI 2020 Report, Kirsten Kanja (2020 ―Counties, women groups slam BBI report,‖

Standard, Nairobi, November 5, 2020, at https://www.standardmedia.co.ke/politics/article/2001392687/consult-us-

or-we-reject-bbi-proposals-mcas-now-warn (accessed November 10, 2020).

7

Significantly, Arts 3827

, 8128

and 8629

of the Constitution are clear that there is no

constitutionally mandated electoral system: FPTP, PR or MMPR. Kenya must abandon the FPTP

even though it is the easiest to implement.

The main types of elections under the 2010 Constitution are presidential, parliamentary and

county. This replaced the old typology of presidential, parliamentary and local government

elections under the 1969 constitution repealed National Assembly and Presidential Election

(NAPE) Act, Cap 7 and the repealed Local Government Act, Cap 265.30

How can Kenya implement the arguments regarding vote weighting and vote dilution including

one person, one vote; one person, one vote, one shilling (population quote and resource

allocation); one person, one vote, one kilometre (…?).

How should Articles 87, 89, 90, 97, 98, 177…be amended and implemented? When should

electoral units or boundaries be reviewed? after 8 years (IEBC 2020?) or after 12 years? After

reviewing the electoral system in terms of MMPR?

How should electoral units relate to constitutional (e.g. County), political (constituency), and

administrative units (e.g. regions, sub-counties…)

4.2.3.1 Presidential elections in Kenya and Africa31

In terms of occasion and procedure, a presidential election may be conducted as pure presidential

election or as part of a general election (Arts 136, 138, 139, 140). A person is qualified for

election as President if the satisfies Article 137 requirements. These include being a citizen by

birth; qualifying to stand for election as a Member of Parliament (Art 99); and being nominated

by a political party, or being an independent candidate.

The person must be nominated by not fewer than two thousand (2000) voters from each of a

majority of the counties (that is, at least 24 of the 47 counties). The Independent Electoral and

Boundaries Commission (IEBC) issues a certificate to a person who has met the foregoing and

related requirements under the Constitution, the Political Parties Act, 2011, the Elections Act,

2011 and the relevant Rules and Regulations.

The threshold for a presidential election is outlined under Article 138 of the Constitution 2010. A

candidate who receives more than half of all the votes cast in the election (50% + 1) and at least

27

…. 28

…. 29

…. 30

See Ben Sihanya (2016) ―Emerging Electoral Jurisprudence in Kenya and Nigeria,‖ Essay presented at The

Electoral Institute (TEI) and the Independent National Electoral Commission (INEC) of Nigeria, August 10, 2016.

See also Ben Sihanya (forthcoming 2020) ―Electoral justice in Kenya under the 2010 Constitution: Implementation,

enforcement, reversals and reforms,‖ in Ben Sihanya (2020) 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 & Innovative Lawyering, Nairobi

& Siaya (herein, Chapter 24 CODRALKA 1)… 31

See also Chapter 9 CODRALKA 1 on President and Premier in Kenya and Africa….

8

twenty-five per (25) cent of the votes cast in each of more than half (or at least 24) of the 47

counties shall be declared elected as President.32

Consider the BBI 2019 and 2020 debate, proposals and discussion that in a hybrid parliamentary

leaning system, the President appoints the DP; who is not a running mate…33

4.2.3.2 Gubernatorial elections in Kenya and Africa

Article 179 states that the executive authority of the county is vested in, and exercised by, the

county executive committee which consists of the county governor, the deputy county governor,

and members appointed by the county governor with the approval of the assembly. The county

governor and deputy county governor are the chief executive and deputy chief executive of the

county, respectively.

Art 80 provides that the county governor shall be directly elected by the voters registered in the

county, on the same day as a general election of Members of Parliament, being the second

Tuesday in August, every fifth year. The governor is elected on the basis of a plurality of votes

rather than majority.

There have been debates on the dates of elections under the 2010 Constitution34

and even

before.35

There are no separate elections for the deputy county governor. Instead, each candidate for

county governor shall nominate a person who is qualified for nomination for election as county

governor as a candidate for deputy governor. The Independent Electoral and Boundaries

Commission shall then declare the candidate nominated by the person who is elected county

governor to have been elected as the deputy governor. Cf. Deputy President.

The legislative authority of a county is vested in, and exercised by, its county assembly (Art

185). Art 177 states that a county assembly shall consist of members elected by the registered

voters of wards and they are to be elected on the same day as a general election of MPs, being

the second Tuesday in August, in every fifth year. Moreover, the number of special seat

members necessary to ensure that no more than two thirds of the membership of the assembly are

the same gender; and contain the number of members of marginalized groups, including persons

with disabilities and youth, prescribed by an Act of Parliament.

32

The Supreme Court in Raila Odinga v. IEBC and 3 Others thus sought to amend this clause without citing any

authoritative source. The amicus curiae A-G Githu Muigai cited a dissent from Seychelles whose constitutional and

electoral system has no precedental value. Some of the (problematic) cases in Raila are: Abubakar v. Yar’Adua

[2009] All FWLR (Pt. 457) 1 SC, Akashambatwa Lewanika & Others v. Fredrick Chiluba [1999] 1 LRC 138; Bush

v. Gore 531 US 98 (2000); Buhari v. Obasanjo (2005) CLR 7(k) (SC), Col. Dr. Kizza Besigye v. Museveni Yoweri

Kaguta & Electoral Commission, Election Petition No. 1 of 2006; Jugnauth v. Ringadoo and Others [2008] UKPC

50; M. Narayan Rao v. G. Venkata Reddy & Another, 1977 (AIR)(SC) 208; Morgan and Others v. Simpson and

Another [1974] 3 All ER 722; Ojukwu v. Obasanjo (2004) 12 NWLR (Pt.886) 169; United States v. Michigan 940

F.2d 143, 164…. 33

…. 34

…. 35

Cf. debate on the dates of general, presidential, civic, and county assembly elections after 1963: 1968? Why

1969?....cite present and past elections date cases….and also the Ford K case on nomination timeline in the 1992

general elections….

9

Consider the three-pronged BBI 2019 and 2020 proposals and debates on the Deputy Governor

(DG). First, that the Gubernatorial candidate ―shall consider a running mate from opposite

gender‖…; that the Deputy Governor be appointed by the Governor and should not be a running

mate, to allow broader political negotiations and compromise. Second, that the Governor

appoints the DG from the opposite (or same?) gender…Third, that the Governor assigns or

reassigns the DG a specific portfolio…What about the role of the county assembly in the

disappointment of the Deputy Governor?36

4.2.3.3 Parliamentary elections in Kenya and Africa37

Article 101 provides that a general election of members of Parliament shall be held on the second

Tuesday in August every fifth year. Significantly, there was debate on the date of the first

election under 2010 Constitution. Why were general elections held in1969 and not 1968 (after

1963?).38

To qualify for election as an MP, one must be a registered voter; satisfy any educational, moral

and ethical requirements and be nominated by a political party, or be an independent candidate

supported by at least one thousand registered voters in the constituency in the case of election to

the National Assembly or two thousand (why?) registered voters in the County in the case of

election to the Senate.39

4.2.4 Right to Recall the Members of Parliament in Kenya and Africa40

Article 104 0f the Constitution of Kenya 2010 provides that the electorate under Articles 97 and

98 have the right to recall the members of Parliament representing their constituency before the

end of the term of the relevant House of Parliament.

Under article 104 of the Constitution of Kenya 2010, the right of the electorate to recall their

representative applies only in respect of elected members of the National Assembly and the

Senate.

Section 45 of the Elections Act provides for the ground in which the electorate in a county or

constituency may recall their Member of Parliament before the end of the term in the relevant

House of Parliament.

A Member of Parliament may be recalled where the member-

36

…. 37

See also Chapter 7 CODRALKA 1 on Legislative Power and Process in Kenya and Africa. 38

The March 4, 2013 was identified after much debate whereby the Kibaki-Kenyatta faction that was controlling the

executive and government machinery appeared not ready for elections that should have been held by December 27,

2012 (after Dec 27, 2007)…. What about 2017? 2022?.....See also Chapter 9.CODRALKA 1 on President and

Premier in Kenya and Africa…. 39

Why? Cf. Registration of parties – some parties like TNA included non members in their lists. There were

complaints. What did RPP and IEBC do under the law? 40

Nzau Musau (2014) ―Why you have to wait until 2015 to recall your MP, and still it may not be that easy,‖

Standard Digital, Nairobi, October 18, 2014, at

http://www.standardmedia.co.ke/entertainment/article/2000138706/why-you-have-to-wait-until-2015-to-recall-your-

mp-and-still-it-may-not-be-that-easy?pageNo=3 (accessed 23/10/14).

10

a) is found, after due process of the law, to have violated the provisions of Chapter Six of

the Constitution;

b) is found, after due process of the law, to have mismanaged public resources;

c) is convicted of an offence under the Elections Act.

A recall of a Member of Parliament under section 45(1) of the Elections Act, can only be

initiated upon confirmation of any of the three grounds under section 45(2) by the High Court. A

recall can only be initiated twenty-four months after the election of the member of Parliament

and not later than twelve months immediately preceding the next general election.

The Elections Act also provides that a recall petition shall not be filed against a Member of

Parliament more than once during the term of that member in Parliament.41

A person who unsuccessfully contested an election under the Elections Act 2011 shall not be

eligible, directly or indirectly, to initiate a petition.

4.2.4.1 Petition for recall in Kenya and Africa42

A recall election shall be decided by a simple majority of the voters voting in the recall election.

A recall under section 45 of the Election Act 2011 shall be initiated by a petition filed with the

Independent Electoral Boundaries Commission (IEBC) and which shall be-

a) in writing ;

b) signed by a petitioner who-

i. is a voter in the constituency or county in respect of which the recall is sought; and

ii. was registered to vote in the election in respect of which the recall is sought;

c) The petition shall be accompanied by an order of the High Court issued in terms of section 45(3)

of the Elections Act which provides that a recall of a Member of Parliament shall only be initiated

upon a finding by the High Court confirming the grounds where a Member of Parliament may be

recalled.

d) The petition shall;

i. Specify the grounds for the recall;

ii. Contain a list of names of voters in the constituency or county which shall represent at

least thirty percent of the registered voters; and

iii. Be accompanied by the fee prescribed for an election petition.

The Independent Electoral Boundaries Commission if satisfied that the grounds for a recall are

met shall within fifteen days after the verification, issue a notice of the recall to the Speaker of

the relevant House (National Assembly/Senate). The Commission shall then conduct a recall

election within the relevant constituency or county within ninety days of the publication of the

question.43

41

Section 45(2) (5) of the Elections Act 2011. 42

See litigation and case law... 43

Section 46(8) of the Elections Act, Cap. 7.

11

Further, according to Part IV of the Elections Act 2011, the electorate in a county or constituency

have a right to recall their representative on only three grounds: violation of provisions of

Chapter Six of the Constitution, mismanagement of public resources and if convicted under the

Elections Act.44

See arguments by Jill Cottrell Ghai of Katiba Institute and University of Nairobi law scholar Prof

Ben Sihanya on recall of MPs.

4.3 Public, Popular and Stakeholder Participation in Kenya and Africa45

What is public or popular participation?46

How is it conceptualized or defined in the following, if

at all: Constitution of Kenya,47

South Africa, Nigeria, Uganda, Zanzibar; Public participation Bill

2018;48

cf…49

; policy public participation50

…Ben Sihanya has developed a conceptualized

framework, typology and methodology on public participation under the Constitution of

Kenya.51

The term public participation has been conceptualized and defined differently. According to

Smith, public participation encompasses a group of procedures designed to consult, involve, and

inform the public to allow those affected by a decision to have an input into that decision.52

The

World Bank Learning Group on Participation defines participation as a process through which

stakeholders influence and share control over development initiatives and the decisions and

resources which affect them.53

These definitions depict public participation as relating closely to the administrative principle of

consultation which demands that public bodies consult parties to be affected by a decision or rule

before making their final determination.54

Before such consultation, the public bodies must avail

44

Part IV of Elections Act 2011. See also Nzau Musau (2014) ―Why you have to wait until 2015 to recall your MP,

and still it may not be that easy,‖ Standard, Nairobi, at http://www.standardmedia.co.ke/article/2000138706/why-

you-have-to-wait-until-2015-to-recall-your-mp-and-still-it-may-not-be-that-easy (accessed on 29/6/2016)......... 45

See Chapter 18 of CODRALKA 2 on Public Participation and Public interest Lawyering in Kenya and Africa; a

revised edition from the article published in the LSK Journal as Ben Sihanya (2013) ―Public participation and public

interest lawyering under the Kenyan Constitution: Theory, process and reforms,‖ Vol 9 (1) (2013) Law Society of

Kenya Journal 1–32, ibid….. 46

Cf. George Githinji (2020) ―The legal framework for public participation in Kenya,‖ …. 47

from Githinji, Articles Article 69 (1) (d); Article 118: (1); Article 119 (1); Article 174 (c); Article 232(1) (d) ibid 48

…. 49

Cite e.g. from Githinji, ibid 50

…. 51

Ben Sihanya (2013) ―Public participation and public interest lawyering under the Kenyan Constitution: theory,

process and reforms,‖ Vol 9 (1) (2013) Law Society of Kenya Journal 1–32. 52

L.G. Smith (1983) Impact Assessment and Sustainable Resource Management, Longman, 1983. See generally

Gene Rowe & Lynn J. Fr (2000) Public participation methods: A framework for evaluation, Vol. 25, No. 1, Science,

Technology, & Human Values, 3-29………. 53

World Bank, World Bank Participation Sourcebook Environment Department Papers Participation Series

(Washington, DC: World Bank, 1995)…….. 54

David Pollard, Neil Parpworth & David Hughes, Constitutional and Administrative Law 4th

ed, (United

Kingdom: Oxford University Press, 2007). See also Ben O. Nwabueze (1974 Presidentialism in Commonwealth

Africa , C. Hurst & Nwamife, London & Enugu.

David H. Rosenbloom, Robert S. Kravchuk, & Richard M. Clerkin, (2009) Public Administration: Understanding

Management, Politics, and Law in the Public Sector, McGraw-Hill, New York…...

12

sufficient information to the citizens being consulted to enable them to tender advice.55

These

parameters are important for democracy and constitutional government.

4.3.1 Public Participation under the Constitution of Kenya 2010

Public participation under the Constitution of Kenya 2010 is based on numerous theoretical

premises. Three of these are, first, the constituent power or the foundation of sovereign authority.

Second, the economic and administrative efficiency partly based on subsidiarity in service

delivery. Third, regulatory and procedural juridical due process.56

All sovereign power belongs to the people of Kenya and is required to be exercised only in

accordance with the Constitution.57

This is partly based on the premise and means that citizens

themselves should be the ones exercising power.58

Since not all citizens can directly or actively

participate in governance, they do so by means of elected representatives in Parliament, as well

as direct participation through mechanisms like referenda.

In summary, the Constitution of Kenya 2010 makes public participation a key concept of governance

under Article 1 (1) and 1 (2); Article 10(2) (a); Article 174; Article 33 (a); Article 69(1) (d); Article

119(1); Article 196(1); Article 174; Article 184(1) (c); Article 196 (2); Article 232....

Public participation is also emphasized under the following statutes: Public Finance Management Act,

2012 and the County Government Act, 2012….

See Public Participation Bill, 2018 (before Senate)………59

See various county Public participation Acts and Bills……

See cases on Public participation in legislation, taxation, Constitutional amendment

debate…….e.g. Gakuru v. Kiambu60

….(Justice Odunga……)….; the Coastal Kenya …. Case;

cf. Wilfred Manthi Musyoka v. County Assembly of Machakos [2019] eKLR; Omtatah v. County

Government of Kiambu [2018] eKLR61

where Justice Meoli held that public participation carried

out before the enactment of Kiambu County Alcoholic Drinks Control Act, 2018 satisfied the

test of effectiveness; Justice Weldon Korir upheld BBI 2019 on constitutionality of functions,

presidential power in public participation and appointment of members of the BBI Taskforce as

provided under Section 44 of the Interpretation and General Provisions Act, Cap. 2 in Moraa

Gesicho v. Attorney General, Building Bridges to Unity Task Force [2019] eKLR;

55

Paul Craig (2010) Administrative Law, Sweet and Maxwell, London. 56

See Article 47 of the Constitution on fair administrative action. Decisions that are economically and

administratively efficient, reasonable (rationality……) and procedurally fair. 57

Preamble, Constitution of Kenya 2010…. 58

Benjamin Obi Nwabueze, (1974) Presidentialism in Commonwealth Africa (: St. Martin‘s Press, New York);

Benjamin Obi Nwabueze, Constitutionalism in the Emergent States (London: C. Hurst & Co, 1973). Cf. Njoya & 6

Others v. A-G & 3 Others Miscellaneous Civil Application (No. 2) [2004] KLR….. 59

… 60

Robert N Gakuru & Another v. Governor Kiambu County & 3 Others [2013] eKLR; Republic v. County

Government of Kiambu Ex parte Robert Gakuru & Another [2016] eKLR 61

Okiya Omtatah Okoiti v. County Government of Kiambu [2018] eKLR

13

Further, Justice Mativo held that the powers and functions of the president as provided under

Art. 131, 132 and 252 are not contradictory but rather, that Art. 252 is general whiel Art. 131 and

132 are specific, in Thirdway Alliance Kenya & Another v. Head of the Public Service-Joseph

Kinyua & 2 Others; Martin Kimani & 15 Others (Interested Parties) [2020] eKLR62

; Justice

Mativo stated that:

―I do not think that it was the intention of the Constitution that any time the President performs

his functions he is required to subject his decision to public participation. Such an interpretation

would amount to unnecessarily constraining his constitutional functions.‖63

4.3.2 Forms of participation in Kenya and Africa

Public participation may take various forms. These may be in the realm of social and political

processes; administrative processes; and juridical processes, including litigation. These may

involve elections, referenda, public hearings or inquiries, parliamentary representation of

citizenry, public opinion surveys, citizen advisory committees, and focus group discussions,

among others.64

4.3.2.1 Participation in the legislative process in Kenya and Africa

The 2010 Constitution has opened space for the exercise of popular sovereignty in governance.

This has been done at three levels: first, legislative activity, whereby Articles 118 and 119

require Parliament to facilitate public participation and involvement in the legislative and other

business of Parliament and its committees……65

Previously, participatory lawmaking was achieved at a minimal level by the involvement of

consultative statutory and ―executive‖ legislative organs such as the Kenya Law Reform

Commission (KLRC), which routinely collects views from the public before drafting bills, and

various legislative task forces mandated to collect views from the public and draft bills. The

2010 Constitution now requires participatory legislative processes at all legislative levels,

including the Senate, the National Assembly, county assemblies, KLRC, the Attorney-General‘s

office (for Government Bills), ministerial offices, and constitutional as well as statutory

commissions with legislative mandates, e.g., the Commission on Revenue Allocation (Articles

215–219, 248). Who (actually) originates, processes or makes (most of the) laws…?

4.3.2.2 Participation in policy making and execution66

62

Mercy Asamba (2020) ―Court dismisses Aukot‘s case on BBI task force,“ Standard, Nairobi at

https://www.standardmedia.co.ke/article/2001362863/court-dismisses-aukot-s-bbi-task-force-case (accessed

November 10, 2020). 63

Thirdway Alliance Kenya & Another v. Head of the Public Service-Joseph Kinyua & 2 Others; Martin Kimani &

15 Others (Interested Parties) [2020] eKLR 64

See Ben Sihanya (2013) ―Public participation and public interest lawyering under the Kenyan Constitution:

Theory, process and reforms,‖ op. cit. now Chapter 18 CODRALKA 2….. 65

..To quote …………..in the text. 66

See Chapter 10 of CODRALKA 2, ―The Contribution of Academia and Civil Society in Development, Policy

Making & Budgetary Processes,‖ revised from the version published as Ben Sihanya (2009) ―The Contribution of

Academia and Civil Society in Development Policy Making & Budgetary Process,‖ in Peter Wanyande& M.A.

Okebe (eds) (2009) Discourses on Civil Society in Kenya, African Research and Resource Forum (ARRF), Nairobi,

Section I, Chapter V, 40-64….

14

The second is law execution and policy making, whereby Articles 10, 43, 129(2) and 232 of the

Constitution provide that the exercise of executive and public authority, and public policy

making, should be undertaken with popular participation and for the wellbeing of the people.

Third, Article 159, among others, opens up the judicial adjudicatory process for the people, in

terms of access to justice through broader capacity to sue (or locus standi).

Policy making has been integrated into the Constitution in at least three main ways: first, Article

10 articulates a set of comprehensive national values and principles of governance to bind all

state organs, state officers, public officers and all persons in making or implementing public

policy decisions. Second, Article 21 tasks the government with a mandatory duty of taking

policy measures to achieve the progressive realization of the comprehensive economic and social

rights guaranteed under Article 43. Third, Article 232 provides that the values and principles of

the public service include the involvement of the people in the process of policy making

4.3.2.3 Participation in constitution making, Constituent Assembly, and referenda67

As already indicted the constituent power includes constitutional amendment and review. This

may be through a referendum, constituent assembly, or parliament. Either way, the people

participate through directly casting of a vote or through their representatives. Kenya went

through this in the 1960-1963 Lancaster House Conference and in the 2008-2010 constitutional

review process that culminated in the referendum on August 4, 2010.

A referendum is defined as a direct vote in which the electorate are asked to either accept or

reject a particular proposal. This may result in the adoption of a new constitution, a constitutional

amendment, or a law. It is a form of direct democracy. In a referendum, the vote is usually a

choice of one of two options. A referendum may address one issue or many issues or may be a

choice between two documents: issues-based v. document-based. All participants in the process

have equal voting power (or influence) and the final outcome is binding on all citizens.68

Participation in a referendum is usually by all members of the national or local population

subject to existing legal limitations. Any Kenyan qualified to vote also qualifies to participate in

a referendum.69

Kenya has had two referenda votes since independence in 1963. The first

referendum was held on November 21, 2005 where Kenyans were asked to either vote for or

against the Proposed New Constitution of Kenya 2005 that was sponsored by the faction of the

Government led by President Mwai Kibaki, (the ―Wako‖ or DP Draft).70

58.12% voters led by

67

Cf Constitution of Kenya Review Acts, interim constitutions, final constitutions, …cf Uganda 1966, 1967; 1993-

95; Nigeria, (transition without end, until 1999 Constitution?) South Africa? Kenya? 68

Merriam Webster Dictionary (2012); Sylvia R. Lazos Judicial review of initiatives and referendums in which

majorities vote on minorities’ citizenship (1999) University of Nevada, Las Vegas, William Boyd School of Law

Scholarly Works Paper 479, Las Vegas. 69

Article 38(3)(b) of the Constitution of Kenya 2010. 70

Proposed New Constitution of Kenya, 2005 published on August 22, 2005 vide Kenya Gazette Supplement No.

63 by the Attorney-General S. Amos Wako. It had been drafted by or on the instructions of the Democratic Party

(DP) and its allies by excluding sections of the governing Coalition under the National Rainbow Coalition (NARC)

and most of the Kenyan people.

15

Cabinet Ministers Raila Odinga and Kalonzo Musyoka voted against the Proposed New

Constitution.

The second referendum was held on August 4, 2010 for Kenyans to either vote for or against the

Proposed New Constitution of Kenya 2010. Over 67% of voters led by President Mwai Kibaki

and Prime Minister Raila Odinga approved the Proposed Constitution of Kenya, 2010. It was

promulgated on Friday, August 27, 2010.71

Kenyans may participate in another Referendum in the context of the post handshake Building

Bridges Initiative 2019 and 2020, and the Constitution Amendment Bill by the Third Way

Alliance.

4.3.2.4 Participation in protests, demos, picketing…in Kenya and Africa

Public participation is a substantive and procedural right and duty. The character of the rights

varies with contexts and the nature or people claiming it, for instance, whether citizens or

foreigners… Moreover, the people have a right and duty to participate in civil disobedience

hence disobey unconstitutional, unlawful and unjust laws and orders. Article 37 states:

―Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to

picket, and to present petitions to public authorities.‖72

It is trite law that freedoms and rights under the Constitution of Kenya 2010 can only be enjoyed

subject to the limitations provided under Article 19(c), 24, and 27. The right to participation in

protests, demos and picketing has however, continuously, and generally been violated by the

State and state organs in Kenya,73

Tanzania74

, Uganda75

, Nigeria, and other African states,

especially before, during, and after electoral cycles.

4.4 Petitions and memoranda in the Kenya’s constitutional development76

The Legislative Council (LegCo) was established in 1907 in the era of protectorate and 13 years

before colonial status. The limited African membership, and petitions to it, contributed to

constitutional development. This was mainly because of agitation by white settlers and Asians.

71

Again, the Government was divided with some Ministers opposing the proposed Constitution. See Chapter One

on Reconstructing the Kenyan state and constitution. See also CODRALKA 2……….. 72

See also Article 1 on Sovereignty and Article 10 on Values and principles and equity, participation; and Article 38

on political rights…. 73

Human Rights Watch (2017) ―Not Worth the Risk: Threats to Free Expression Ahead of Kenya‘s 2017 Elections,‖

Kenya, at https://www.hrw.org/report/2017/05/30/not-worth-risk/threats-free-expression-ahead-kenyas-2017-

elections (accessed November 10, 2020). 74

Kizito Makoye (2020) ―Tanzania arrests opposition leader ahead of protest,‖ AA, Tanzania, November 2, 2020, at

https://www.aa.com.tr/en/africa/tanzania-arrests-opposition-leader-ahead-of-protest/2027597 (accessed November

10, 2020). 75

Al Jazeera (2020) ―Uganda arrests Stella Nyanzi at protest over coronavirus response,‖ May 19, 2020, at

https://www.aljazeera.com/news/2020/5/19/uganda-arrests-stella-nyanzi-at-protest-over-coronavirus-response

(accessed November 10, 2020). 76

…

16

Petitions and memoranda were sent to British colonial officers in Kenya and the metropolitan

Government in London, Kenyatta, Mboya, and Mbiyu Koinange played important roles in these

processes. In fact, Kenyatta was initially sent to London in 1929 by the Kikuyu Central

Association (KCA).

The Jo-memoranda (people of memoranda) of Nyanza who petitioned the Governor, the

Provincial Commissioner (PC), the District Commissioner (DC) and other colonial Government

officials.

Petitions and memoranda contributed to African political consciousness, and made the

international community like the UN, the US, among others as well as progressive British

institutions and people aware of Kenyans‘ grievances. These include(d) petitions in the context

of the Lord Devonshire White Paper of 1923, the Morris Carter Land Commission 1933; to the

East African Royal Commission of 1953-4 or Swynnerton Plan of 1954; to various Colonial

Secretaries, etc. as discussed below.

4.4.1 Devonshire White Paper, 192377

in Kenya

The Lord Devonshire White Paper of 1923 was the product of some negotiated settlement. What

were the three main recommendations of the Lord Devonshire Declaration?

First, it recognised and concluded that Kenya was a Black Man‘s country – not a White Man‘s

country. This statement was crucial at the time (in the 1920s….).78

. Remarkably, the settlers had

demanded that Kenya be a White Man‘s country.79

This was opposed by leaders like J.M.

Jeevanjee….80

Zimbabwe (Southern Rhodesia) and South Africa became a White Man‘s

country until independence and majority rule in 1980 and 1994, respectively. Second, the

interests of Africans were paramount and should prevail in the case of conflict with those of the

settlers.81

Third, the Paper indicated that the other racial groups (Europeans and Asians) should be given

due consideration.82

In reality, White domination and discrimination against Africans or colour bar or kalaba

continued into the immediate post-colonial period. Had the text and intention of or spirit been

implemented, Kenya would have been better, and perhaps independence should have come

earlier.

4.4.2 Morris Carter Land Commission 1934 and the Kenyan Land Quest

The Morris Carter Commission was appointed by the British administration in 1932 to look into

native land grievances which were threatening to erupt into violence. The Commission defined

77

See…. 78

Cf. Bruce Berman and John Lonsdale (1992) Unhappy Valley. Vol 1& 2. ..; Bruce Berman (1990) Control and

Crisis in Colonial Kenya….. 79

This is related to the development of zoning, physical plannig, land use, land control, policies, laws and

regulations…. 80

Jeevanjee Gardens in Nairobi‘s Central Business District (CBD) named after him…. 81

…. 82

….

17

the boundaries of the White Highlands for the exclusive use of White settlers and the native

reserves for Africans.83

The Carter Commission recommended, inter alia, that Africans had enough land but needed to

adopt better farming methods and consolidate fragmented land holdings.

4.4.3 East African Royal Commission 1953-54

The Commission was tasked with investigation of the conditions necessary for economic success

of the East African colonies, namely Kenya, Uganda and Tanganyika.84

The Commission

recommended that the economic development of East Africa depended on colonial development

―achieved through cooperation among the various races.

the report of the Commission has been criticised for largely ignoring the demands and historical

accounts and narratives of the Africans who complained of historical injustices at the hands of

the colonialists.85

4.4.4 Swynnerton Plan 1954 and Agrarian Reform in Kenya

The purpose of the (RJM) Swynnerton Plan of 1954 was to intensify African agriculture in the

context of the ―second colonial conquest‖86

and secure land tenure. What were the policies,

strategies and tactics of the Swynnerton Plan? It was largely three pronged. First, land

adjudication. This involved establishing ownership instead of verifying who had what interests in

what land….eg access rights….87

Second, consolidation of fragmented land holdings. This involved giving up pieces of land

and/or gaining some to ensure the fragmented pieces could make economic sense….88

Third, registration of land titles. The registered proprietor‘s interests or rights would then be

absolute, and even if a leasehold, would defeat any other adverse claim….

Creating a yeoman or middle class…that would be indebted to the British and be a buffer against

(militant) nationalism. Disinheriting Mau Mau forest fighters….89

What were the actual motivations of the Swynnerton Plan?

83

See Douglas Kiereini (2018) ―Land Report set stage for Mau Mau,‖ Business Daily, Nairobi, at

https://www.businessdailyafrica.com/lifestyle/society/-land-report-set-stage-for-Mau-Mau/3405664-5097794-

ba4c7tz/index.html (accessed 29/10/2019). See also Chapter 3 of the CODRALKA 1 on Constitutional Founding if

the Kenyan and African State (on beginning, progress, decline of white settlements, reserves..segregation and zoning

based on white, Asian, African in towns, in agricultural land…. 84

…. 85

…. 86

See ES Atieno Odhiambo…After the War, Britain wanted the colonies to produce more to sustain themselves and

subsidize the empire….cf Berman and Lonsdale (1992) Unhappy Valley. Vol.1&2.... 87

H.W.O. Okoth Ogendo, ‗‘Terminological confusion in tenure relations in African agric…..‖HWO Okoth Ogendo,

―The Imposition of property law in Kenya…..‖, HWO Okoth Ogendo, ―The Tragic African Commons‖….. 88

….. 89

Cf leasing land for a….

18

What were the (unintended) consequences of the Swynnerton plan?...(Before the plan

agricultural and related development was largely the same in Central, Nyanza, Rift Valley and

…..parts of Kenya.90

How have Kenyans and Courts addressed the consequences of Swynnerton Plan, Registered

Land Act (RLA) 1963. These ―reforms‖ led to litigation on adjudication, consolidation and

registration, including Muguthu,91

… Sellah Obieroh v. Opiyo92

…

These land laws were later reviewed to the 2012 land laws. Some of these were subsequently

amended, namely the Land Act 2012, Land Registration Act 2012, and the National Land

Commission Act 2012.93

4.5 Political mobilisation through welfare associations, trade unions, political parties in Kenya and

Africa

Political movements and parties among many Kenyan ethnic groups and regions contributed to

political consciousness, the constitutional debate and settlement, and the attainment of

independence. The main argument here is that the organisation was more purposive, inclusive,

and efficient……

4.5.1 Social welfare associations and trade unions in Kenya’s and Africa’s Independence struggle94

The constitutionalists had a clearer idea on governance and the purpose or meaning of

independence than the radicals especially through parties and political movements.

The constitutionalists argue that the groups that helped in the fight for freedom mainly used

peaceful means, and especially negotiations, trade unionism and organising for welfare.95

These later evolved into (liberal) political parties. The organisations include Harry Thuku‘s EA

Association (EAA), Young Kikuyu Association (YKA), Kikuyu Central Association (KCA),

Kavirondo Taxpayers‘ Association, Young Kavirondo Association (YKA), and later Kenya

African Union (KAU).96

4.5.2 Political Parties in the Struggle for Kenyan and African Independence

90

BA Ogot & WR Ochieng‘(1995) ―The decisive years, 1956-63,‖ Decolonization and Independence in Kenya

(1995) 1940-93. London: J. Currey at https://www.worldcat.org/title/decolonization-independence-in-kenya-1940-

93/oclc/26720046. (accessed October 30, 2019)….. 91

… 92

... 93

The land question is one of the most complex and intractable issues in Kenyan, South African, Nigerian,

Ugandan, Tanzanian, and Zimbabwean political economy and constitutional sociology and democracy. The classes,

lectures and text books that address some of the questions include land law, property law, agricultural law, agrarian

law, land use law, and physical planning law… 94

There are three key problems. First, to relocate: the British always transferred power on the basis of a negotiated

constitutional and political settlement, founded on the Westminster Parliamentary and White Hall (admin

bureaucracy) …….model……Hence Ghana (1957), Nigeria (1960), Uganda (1962…) Second, there was a general

tendency that the transfer of power in settled colonies would happen after or in the context of militant or violent

struggle (as well as constitutional and political negotiations…..). Examples include Algeria (a French colony) (….),

Kenya (1963), Zimbabwe (1980), Namibia (1990), South Africa (1994)…….Third, the transfer of power in the

Lusophone (Portuguese) colonies was always preceded or accompanied by military or violence. Examples are

Angola, Mozambique…..How did the Belgians transfer power in the Congo (DRC)? 95

See discussion on the radicals or militants in Chapter 3 above….. 96

To unpack, under different sub sections, welfare associations, tax payment associations, trade unions, etc....

19

The political parties included Tom Mboya, Nairobi People‘s Convention (NPC) Oginga

Odinga‘s the Kenya Independence Movement (KIM) and CMG‘s Nairobi Peoples Party. Such

parties developed from urban interests, or free from major political movements among the Luo,

Kalenjin, Kamba, Maasai, Miji Kenda and Luhya, among others.

In 1944 Eliud Wambu Mathu became the first African nominated to LegCo.97

In a sense, KAU

was formed from the Kenya African Study Union (KASU) …to support his political

representation and related ......

Who were the other nominees to LegCo? The African District Councils.....(ADCs) played a

major roel in political participation and representation.98

In fact, some of the future nationalists

honed their skills in ADCs…..99

ADCs were partly a training and mentoring ground for future

national leaders….

In 1952 a state of emergency was declared.100

Kapenguria 6; Bildad Kaggia, Kung'u Karumba,

Jomo Kenyatta, Fred Kubai, Paul Ngei, and Achieng‘ Oneko jailed for seven (7) years with hard

labour.101

General elections were held in Kenya between 25 September and 2 October 1956. Only Indians

and Europeans could be elected.

Oliver Lyttelton Constitution: followed 1st elections where eight ―black constituencies‖ were

introduced for Africans to contest in 1954.

Table 4.1: The first 8 Elected Africans and Key Opponents

97

When was LegCo established? Why? Who were the earlier nominees to Leg Co to represent African interests?

Why Missionaries? Develop a matrix on LegCo size and representation by race from 1907 to 1963….when was

executive council established? How and when did it develop into the Council of Ministers? The Cabinet?........ 98

…. 99

E.g.…. 100

See Chapters 3 above on radicals, militants, Mau Mau, Kapenguria 6…. 101

Oneko was acquitted on appeal but still jailed… See Chapter 2 on ―Constitutional Founding of the Kenyan and

African State‖ CODRALKA 1.

Constituency Member Key Opponents Total Votes

Nairobi Tom Mboya CMG Argwings

Kodhek

Nyanza Central Oginga Odinga B.A. Ohanga

Coast Ronald Ngala

North Nyanza Masinde Muliro

Rift Valley Daniel arap Moi

Central Bernard Mate Eliud Wambu Mathu

20

The elections were race-based in forms of voting rights, voter registration, constituencies and

candidates….or multiracial democracy;‖ not a common roll…which would be introduced under

the Ian Macleod Constitution 1960…

Three issues. What were the votes cast in every one of the eight (8) constituencies? Second, why

were the votes few? e.g. TJ Mboya 2000 plus, CMG 1,700 plus (total 4000 plus, how?). Some

voters or electors had one, two, three votes depending on the …. Criteria:education, property,

Government official….102

Third, why did Mate defeat Mathu? Mathu had criticized Mau Mau

and recommended that they be brought to Nairobi from the forest and killed….Moreover,

Kikuyu voters were limited because they had not been cleared after being condemned wholesale

for Mau Mau….

The 8 formed African Elected Members Association (AEMO) which later changed to

Constituency Elected Members Organisation (CEMO).103

The Lyttleton Constitution provided for the replacement of the Executive Council with a multi-

racial Council of Ministers. It also provided for particular qualifications for African candidates in

terms of property and educational achievement but provided for separate electoral rolls for the

Whites, Asians and Africans.

Alan Lennox Boyd Constitution came just after 1957 elections an extra six (6) African elected to

the LegCo (making 14).104

These include Jeremiah Nyagah (Nyeri-Embu), Justus Ole Tipis

(Central Rift), Taita arap Towett (Kipsigis), Dr Julius Gikonyo Kiano (Central Province), Francis

J Khamisi (Mombasa) and David Ngati Mumo (Ukambani)…..105

Table to indicate which earlier constituencies were being split.....

It should be noted that the British were unwilling to let their colonies go. Alan Lennox-Boyd

hosted a conference a conference of the three East African governors at which it was decided that

Tanganyika would get independence by 1970, Uganda would be the next while Kenya would be

independent in 1975. What happened in 1959? 1960?106

102

…. 103

The African members were joined by some non-Europeans, hence CEMO….. Then they agitated for the release

of Kenyatta under Kenyatta na Uhuru (Oginga Odinga) and Uhuru na Kenyatta (TJ Mboya) … 104

Lennox Boyd was the Secretary for Colonies…. 105

To create table for this; votes cast key opponents….split constituencies…. 106

Pressure by the constitutionalists (and millitants)…Second, pressure from the international community (US,

USSR, UN..) and public opinion in the UK on the empire, decolonization….Hence Harold Macmillan‘s

acknowledgment of the ―winds of change‖….

Ukambani James Muimi

South Nyanza Lawrence Oguda

21

Africans agitated in the 1950s – especially through the Oliver Lyttelton and Alan Lennox Boyd

led constitutional negotiations (1954, 1958) to ensure African majority representation in the

Legislative Council (LegCo) and in the Council of Ministers.

After March 1957 LegCo elections, African members of Parliament led by Tom Mboya formed

the African Elected Members Organisation (AEMO). The British always denied or delayed the

independence of colonies where Westminster institutions (like Parliament, civil service and

competitive party politics had not been deeply rooted. Significantly, (Francis) Kwame Nkrumah,

Kenyatta and other pan African leaders emphasized the slogan: ―seek ye first the political

kingdom.....‖107

By 1960, LegCo was a formidable institution and was part of the evidence of Kenya‘s

preparedness for independence.

The Kenya African National Union (KANU) and Kenya African Democratic Union (KADU)

were formed in 1960. Some biographies and creative works also capture the arguments

regarding the perspectives of the constitutionalists or liberals and the radicals on the struggle for and

meaning of independence.

4.6 Constitutional negotiations and reconstruction of the constitution and state

What trajectory did the reconstruction of the Kenyan Constitution and state take in 1960 and

beyond?

4.6.1 Lancaster House Conferences: I, II, III in Kenya and Africa108

The Lancaster House Conferences (Lancaster I, II, and III) played major roles in formulating the

Kenyan Constitution, in the attainment of independence and in reconstructing the (post) colonial

state.

Lancaster House Conference I (August 1960) was led by Ronald Giden Ngala and Tom

Mboya.109

Ian Macleod, the Secretary for Colonies, clarified that it was an issue of facilitating

Kenya‘s Independence, not whether it would be independent.110

It was also about independence

on the basis of majority rule or elections on a common role…111

The conference focused on directing progress to a Constitution that would be based on the

principles of the Westminster parliamentary system. At that time the Westminster parliamentary

system incorporated special provisions for the protection of minorities.112

After this conference,

the ban on nationwide African political parties was lifted.113

The African leaders acted as one,

107

Cf. 1945 Manchester Conference….Development of the Pan-African Freedom Movement of East and Central

Africa (PAFMECA), Monrovia and Casablanca Groups…Nyerere v. Nkrumah; Nkrumah v. Mboya, Oginga

Odinga…. 108

Zimbabwe‘s Lancaster House Conference….Nyerere was quoted to have stated: ―why go to Lancaster House in

London, we have houses in Dar…‖ Quote, cite… 109

Nzau Musau (2019) ―Why British preferred Mboya-Ngala to Kenyatta-Odinga pair‖ Standard Digital, Nairobi,

October 20, 2019…., at https://www.standardmedia.co.ke/article/2001346138/why-british-preferred-mboya-ngala-

deal-to-kenyatta-odinga-pair (accessed 30/10/2019). BA 3 paper? ... 110

……….. 111

….. 112

……….. 113

………..

22

against the Whites such as rabid racists like Group CaptainLlewelyn ―Puck‖ Briggs, the leader of

a right wing political party…compare the role of Sir Michael Blundel….The Capricon Group

was interested in coopting the nationalists to protect white interests after independence….114

Lancaster House II Conference (Jan-April 1962) led by Kenyatta, Mboya and Ngala focused on

drawing up the outlines of the independence Constitution.

Lancaster House III (September 1962) focused, inter alia; on refining the Constitution. First, on

majimbo or regionalism.115

To KADU, majimboism (regionalism) was a deal maker or deal

breaker…No constitution, no independence without majimbo….To KANU, ….. ……. Kenyatta

urged KANU to accept Majimbo, and deal with it after independence. …

Second, rights including liberties and property rights, and especially land rights would be

guaranteed. No property would be compulsorily acquired unless four conditions were met. First,

for a public purpose. Second, prompt compensation. Third, adequate compensation. Fourth,

access to High Court…

Third, citizenship. The whites would have time to choose whether to be Kenyan citizens or not.

Kenyan men would pass citizenship to their children. Kenyan women would not pass citizenship

(where they married no-Kenyans…)

Fourth, structure of the legislature KANU preferred dual chamber…..cost….unity….not to

Fifth, constitutional amendment procedure. This was agreed to be 75% of both houses for

entrenched clauses, and 90% for ―specially entrenched clauses.‖116

After conclusion, independence was finally granted 1/1/63; 12/6/63; 12/12/64.117

4.7 Representation through Political Parties in Kenya

As discussed, the three traditional arms of Government do not monopolize the exercise of public

power. It is important to study the role played by other claimants to (or agencies which exercise)

public power.

4.7.1 Role of political parties in Kenya and Africa

What are the key constitutional provisions on political parties?

Political parties play a significant role in the recruitment of the Kenya Government in the first

instance. This role is constitutionally sanctioned. For one to be elected, nominated or appointed

as the President, PM, VP,118

Minister, Assistant Minister or an MP, one had to be a member of a

political party and nominated or supported by that party. This is sanctioned by the various

provisions of the Constitution 2010, the Political Parties Act 2011, the Elections Act 2011 and

the IEBC Act 2011. 114

Cf. Tabitha Kagogo…… ―The Capricorn Group…‖ BA 3 paper? 115

Ugatuzi or devolution discussed in Chapters 1, 2, 4 Regulation and Admin of Devolved Govt…..Note: majimbo

was not federalism. Probably quasi-federalism……. 116

Cf. This was one of the early casualties of Jomo Kenyatta‘s mutilation of the constitution 1964-1969: the

amendment threshold would be 65% for any position…..(!) i.e. the future s. 47 of the 1969 Constitution….. 117

Cf. Bomas 1,2,3…. 118

What about DP?

23

Equally significant are s. 34(d) of the 1969 Constitution, the Societies Act, Cap. 108,119

the

National Assembly and Presidential Elections, Cap. 7. 120

The constitutions and nominations rules of the various political parties also apply.

However, it is noteworthy that under the Constitution 2010, a parliamentary and a presidential

candidate may run as an independent candidate. Moreover, ministerial positions are no longer

awarded to MPs which means Cabinet Secretaries must no longer be partisan.121

Resignation from a political party leads to loss of a parliamentary seat under the 2010

Constitution and foregoing statutes (s. 40 of the 1969 Constitution). What is to resign or defect

from a party?

Section 14 of the Political Parties Act, provides that a person who, while being a member of a

political party, forms another political party, joins in the formation of another political party,

joins another political party, in any way or manner, publicly advocates for the formation of

another political party, promotes the ideology, interests or policies of another political party shall

be deemed to have resigned from the previous political party.122

What are the basic criteria for registering a party? For now to continue being a registered party?

(cf. ethnicity, gender, youth, religion, class (e.g. Peasant‘s Party) national symbols like

Harambee.123

What is their role in the exercise of public power and in the constitutional process?

First, political parties participate in recruiting Presidents, Deputy Presidents, MPs, governors,

senators e.g. under Constitution 2010.124

Second, political parties help form administration or the Executive (―government‖) when they

win.125

They play a role in succession and transition; in s. 59 matters…; 2010 Constitution….;

119

…… 120

…. 121

Is this true practically? The Government is likely to choose members or affiliates of its party as Cabinet

Secretaries as they are perceived as being more loyal……. 122

Section 14 of the Political Parties Act 2011. 123

Esther M. Passaris v. Registrar of Political Parties, Civil Appeal No. 626 of 2016 [2016 Eklr]. (Harambee

Democratic Party of Kenya) cf. Constitution of Kenya 2010; Fourth Schedule; National Flags and Emblems Act,

Cap 99…See also Anyango Otieno (2018) ―Court thwarts Passaris quest to register Harambee Democratic Party,‖

The Standard, Nairobi, February 21, 2018, at https://www.standardmedia.co.ke/article/2001270502/court-thwarts-

passaris-quest-to-register-harambee-democratic-party (accessed 30/10/2019. See also Ben Sihanya (2016) IP and

Innovation Law in Kenya and Africa: Transferring Technology for Sustainable Development, Innovative Lawyering

& Sihanya Mentoring, Nairobi & Siaya; Ben Sihanya (forthcoming 2019) IP and Innovation Law in Kenya and

Africa: Cases and Materials, IL & SM, Nairobi & Siaya. The decision is consistent with the law on National

Emblem Flag and Names Act, 2003 (as amended); the Trade Mark Act, 2012. 124

s. 34(d) of the 1969 Constitution. See also PPA 2011, Electoral Act 2011, (NAPE, Cap. 7, repealed). See also

party constitutions; party nomination rules …. (articles by J.B. Ojwang & his book, Constitutional Development in

Kenya, on the issues). 125

e.g. KANU Constitution, (1963); NARC Coalition (2002). PNU/ODM (2007); ODM Constitution as at 2019;

Jubilee Party Constitution…Wiper Constitution…Ford Kenya Constitution…..Amani National Congress

Constitution… On naming political parties, Cf. Sekou Owino (2019) ―What‘s in a name? take heed in these legal

views, implications,‖ Daily Nation, Nairobi, October 27, 2019, at https://mobile.nation.co.ke/news/Take-heed-in-

these-legal-views--implications/1950946-5326378-format-xhtml-11dounk/index.html (30/10/2019).

24

Some parties, alliances or coalitions significantly influenced the unconstitutional, illegal,

unlawful, irregular and flawed process and disputed outcome of the 2007, 2013 and 2017

presidential elections….

Third, parties provide a forum for consensus building in governance – esp. in establishing (pre-

and post-election) coalition governments.126

Fourth, political parties mobilize the people in political and constitutional processes. The

following major parties and coalitions have been mobilized citizens during political and

constitutional processes:127

First, the Orange Democratic Party (ODM),128

Wiper Democratic Movement (formerly ODM-

K)129

, Forum for the Restoration of Democracy-Kenya (Ford-K), The Independent Party (TIP),

Chama cha Uzalendo (all in the Coalition for Reform and Democracy (CORD))…..They were

joined by Amani National Congress (ANC) and formed the National Super Alliance (NASA) in

the context of the 2017 elections.

Second, in the context of the 2013 elections, The National Alliance (TNA)130

, United Republican

Party (URP), National Rainbow Coalition (NARC) and Republican Congress Party of Kenya

(RC) (all in the Jubilee Coalition) formed the Jubilee (coalition) Party).131

What is the emerging

party and general political affiliation in the context of the Building Bridges Initiative (BBI); in

the context of the next general elections (2022)?

Others include the National Rainbow Coalition-Kenya (NARC-K). How did Narc disintegrate:

United Democratic Movement (UDM); United Democratic Forum (UDF), Kenya African

National Union (KANU- changed name briefly to Kenya Alliance of National Unity), New Ford

Kenya, Vision Party (all of Amani Coalition);

126

– e.g. Constitution 2010; Elections Act 2011; PPA 2011; s. 16(2) of the Constitution as read with s. 17(5) of the

National Assembly and Presidential Elections Act, Cap 79 (repealed), and the relevant party constitutions, rules and

instruments. 127

Can it be dangerous when party-coalitions are ethnically influenced? When some utilize or manipulate state

security, finances and human resources to induce, intimidate and influence the outcomes of gubernatorial and

electoral processes. 128

Cf. ODM trade mark case… 129

Cf. OKM: Kalonzo‘s One Kenya Movement v. Onesmus Kipchumba Murkomen trade mark dispute or

anecdote… 130

Dispute or anecdote regarding KANU and TNA on colours …. Or trade mark…Quote; cite…See WILLIAM

Kabogo Gitau v. James Karanja Nyoro & Another [2013] eKLR (2019); Daniel Psirmoi (2019) ―What's in a name?

New TNA party raises eyebrows,‖ Standard, Nairobi, May 6, 2019, at

https://www.standardmedia.co.ke/politics/article/2001324303/whats-in-a-name-new-tna-party-raises-eyebrows

(accessed November 10, 2020). 131

In the post 2017 context, Jubilee emphasized that it is a single party; not a coalition; that the 12 (smaller) parties

were dissolved to form the Jubilee Party. See Aggrey Mutambo (2016) ―History of parties set to dissolve and join

Jubilee,‖ Daily Nation, Nairobi, August 10, 2016, at https://www.nation.co.ke/news/politics/History-of-parties-set-

to-dissolve-and-join-Jubilee/1064-3339164-m7alds/index.html (accessed 30/10/2019)...

25

Party of Action (POA)132

and Kenya National Congress (KNC)133

(both part of Eagle

Coalition)…

What were the circumstances leading to the formation of the following political parties? What

role did they play?

Safina Party,134

Alliance for Real Change (ARK), Restore and Build Kenya (RBK) party, Grand

National Union (GNU), and Alliance Party of Kenya (APK).

Parties also play a role in constitutional review, and in voting on Bills, criticism of

administration … etc

Parties recruit members and help facilitate representative democracy, and participation in

political life, decision making, party-building, etc. This way, party politics helps reduce

patronage, patrimonial or personality politics … and help entrench principled, institutional,

policy based politics … as well as aiding the development of a democratic culture and

constitutionalism. The Constitution 2010 makes provisions to help clarify some of these roles.

The challenges include: Policies, party discipline, initial government v. personal, informal

power, informal advisors; some are self-interested bureaucrats, profiteers, ethnic chauvinists….

independent parties.135

4.7.2 Transferring a Political Party in Kenya and Africa

Why, when, how may a political party be transferred in Kenya and Africa? What is the practice

and experience in Kenya and Africa?....cf 1992, 1997, 2002, 2013, 2017, post 2018….UDF,

ODM-K, ODM in 2009; LDP…

4.7.3 Winding up a Political Party in Kenya and Africa

Under section 39 of the Political Parties Act Cap. 7A, the Registrar of Political Parties has the

power to cancel the registration of a political party, which has been declared to be a prohibited

organization under the provisions of any other law.

Upon the cancellation of the registration of a political party or its declaration as a prohibited

organization under any law, the A-G shall make an application for the winding up and

dissolution of that political party, and the disposition of the property, assets, rights and liabilities

of the political party and the High Court shall make such orders as appears to it to be just and

equitable in the circumstances of the case.136

132

Raphael Tuju… 133

KNC was founded in 1992 by Maina Wanjigi, Titus Mbathi, Charles Rubia. It resulted from a split from FORD

ASILI… To work on the FORD grandchildren…. Peter Kenneth. Took over this party from……. 134

Minister Richard Leakey… Paul Muite… It was initially registered as a trust…Why? 135

Policies-Party discipline-initial government v. personal-informal power-independent parties… 136

Section 42 of the Political Parties Act Cap. 7A….

26

The IEBC (formerly Electoral Commission of Kenya (ECK)) may make regulations prescribing

and regulating the forms to be used and the procedure to be followed in the winding-up of any

political party.137

4.7.3 Party and election profile in Kenya since 1963 in Kenya and Africa

Kenyan Africans have participated in elections only since 1957 when the 1954 Oliver Lyttelton

Constitution allowed eight (8) Africans to the Legislative Council (LegCo). But it is only from

May 1963 that their vote determined who the head of Government (Prime Minister)138

and later

head of state (President) would be. The table below summarizes the major political parties used

in the presidential and ―premier‖ elections and transition from 1963 to 2017.

Year Key Candidates (and

(putative) running mates…)

Key Parties Constitution and

EMB139

1957

March

No premier nor presidential

candidates; first elections for 8

African members of the

Legislative Council done. 140

Who?

No national political

parties

British

Royal Commission

Oliver Lyttelton

Constitution, 1954

1958 No premier nor presidential

candidates; second elections, for

6 African members of the

Legislative Council done. Who?

No national political

parties

Alan Lennox Boyd

Constitution, 1957

1961

February

No ―premier‖ or presidential

candidates;

Elections for African members

of the Legislative Council done

Kenya African

National Union

(KANU)

Kenya African

Democratic Union

(KADU)

Ian Macleod

Constitution, 1960

65 seats; Africans…

Europeans… Indians…

Arabs…

1963

May 18-26

Jomo Kenyatta

Ronald Ngala

Kenya African

National Union

(KANU)

Kenya African

Democratic Union

Lancaster House or

Independence

Constitution, 1963.

Supervisor of

elections, an official

137

Section 43 of the Political Parties Act Cap. 7A….. 138

In May 1963 the KANU won the majority of seats. Kenyatta, its leader, became THE PM. On 12/12/64, Kenyatta

became the President and Head of State after manipulating parliament to amend the Constitution to provide that the

PM would be President. There were no elections. No referendum….. 139

Election Management Body (EMB)….. 140

Charles Hornsby(2012) Kenya: A History since Independence, I.B. Taurus, London, at 53…..

27

(KADU) in the Attorney-

General‘s office.

1966

December

6

Little General Elections

Local Government elections; No

Premier, nor Presidents; 1963

Constitution as amended

Kenya African

National Union

(KANU)

Kenya African

Democratic Union

(KADU)

1969

December

6

Jomo Kenyatta

Oginga Odinga (party banned)

KANU

Kenya People‘s Union

(KPU) (banned just

before elections).

Kenya became single

party de facto.

This consolidated the

Kenyatta

constitutional

amendments 1964-

1969. Supervisor of

elections, an official

in the Attorney-

General‘s office.141

1969 Constitution and

KANU

Constitution.142

1974

October 14

Jomo Kenyatta (VP Daniel

Toroitich Arap Moi)

KANU Supervisor of

elections, an official

in the Attorney-

General‘s office.

1969 Constitution and

KANU Constitution

Kenya is de facto

single party

1979

Nov 8

Daniel Toroitich Arap Moi

(VP Mwai Kibaki)

KANU Supervisor of

elections, an official

in the Attorney-

General‘s office.

Constitution of Kenya

1969;

KANU Constitution

1983

Sept 26

Daniel Toroitich Arap Moi

(VP Mwai Kibaki)

KANU143

Supervisor of

elections, an official

141

Charles Hornsby(2012) Kenya: A History since Independence, ibid, at 216….How should Hornsby‘s eork be

treated after about 2016 when most Euro-American scholars turned into Jubilee soothsayers…intellectual,

academic…., feminists, adventurers and entrepreneurs…? Cf Organic constitutional scholarship…. 142

The 1963 Constitution had been amended from 1964-1969 to strengthen the presidency and weaken all other

offices and institutions including the EMB. Under the 1969 Constitution, a presidential candidate had to be

nominated by a political party. Under the KANU Constitution, KANU could only nominate one candidate. 143

Efforts to register Oginga Odinga and George Anyona‘s Kenya Socialist Party thwarted….

28

in the Attorney-

General‘s office.

Constitution of Kenya

1969;

KANU Constitution

DCs and DOs are the

returning officers in

the districts and

constituencies. Kenya

declared single party

de jure June 1982.144

1988

March 21

Daniel Toroitich Arap Moi

(VP Mwai Kibaki)

KANU Supervisor of

elections, an official

in the Attorney-

General‘s office.

Constitution of Kenya

1969;

KANU Constitution

DCs and DOs are the

returning officers in

the districts and

constituencies.

1992

Dec 29

Daniel Toroitich Arap Moi

(VP George Saitoti… 1/5/89-

8/1/98, 3/4/99-30/8/02)

Kenneth S.N. Matiba

Mwai Kibaki

Oginga Odinga (Jaramogi)

KANU

FORD-Asili

Democratic Party

FORD-Kenya

Electoral Commission

of Kenya (ECK);145

Constitution of Kenya

1969 amended in1991

to repeal sec 2A and

re-introduce

multipartyism.

1997

Dec 29

Daniel Toroitich arap Moi

(VP George Saitoti; disappointed

14 months after elections)

Mwai Kibaki

Raila Odinga

KANU

Democratic Party

National

Development Party

Social Democratic

Electoral Commission

of Kenya (ECK)

Constitution of Kenya

1969 IPPG147

amendments to

strengthen

multipartysm.

144

The move was led by President Moi, Vice President Mwai Kibaki, Mr Paul Muite (Njonjo‘s) lawyer, was

allegedly consulted. This was one of the peaks of Kikuyu-Kalenjin cooperation and socio-economic, political and

electoral exclusion of the Luo and other tribes…. 145

ECK Chair was Mr Zaccheaus Chesoni…

29

Charity Kaluki Ngilu146

Michael Christopher Wamalwa

Kijana

Token or sponsored candidates

Party (SDP)

FORD Kenya

2002

Dec 27

Mwai Kibaki

(Michael Chris Wamalwa

Kijana; Raila Odinga

endorsement and lead

campaigner)

Uhuru Kenyatta

(Musalia Mudavadi? the then

Moi‘s VP)

Simeon Nyachae

James Orengo

Token or Kibaki-sponsored

candidates

National Rainbow

Coalition (NARC)

KANU

FORD People

Social Democratic

Party (SDP)

Electoral Commission

of Kenya (ECK)148

2007

Dec 27

Mwai Kibaki

(VP Moody Awori; lost MP seat

in Funyula Constitutency)

Raila Odinga

Kalonzo Musyoka

(VP Dr Julia Ojiambo)

Token candidates

Party of National

Unity (PNU)

Orange Democratic

Movement (ODM)

Orange Democratic

Movement Kenya

Electoral Commission

of Kenya (ECK)149

2013

March 4

Raila Odinga

(Stepheen Kalonzo Musyoka)

Orange Democratic

Movement (ODM)

Independent Electoral

and Boundaries

147

Inter Parties Parliamentary Group (IPPG). 146

Ms Charity Ngilu was the first female presidential candidate. Prof Wangari Maathai had also run in the 1992

elections…. 148

ECK Chair was Mr Samuel Kivuitu…. 149

ECK Chair was Mr Samuel Kivuitu.

30

Uhuru Kenyatta

(William Ruto)

Musalia Mudavadi

(Jeremiah Kioni)

Token or Kibaki-Kenyatta

sponsored candidates

(under the Coalition

for Reform and

Democracy (CORD))

The National Alliance

(TNA) under the

Jubilee Coalition

United Democratic

Forum (UDF) Party

Commission

(IEBC)150

Constitution of Kenya

2010

2017

August 8

Raila Odinga

(Stephen Kalonzo Musyoka)

Uhuru Kenyatta

(William Ruto)

Token Kenyatta sponsored

candidates

Orange Democratic

Movement (ODM)

(under the National

Super Alliance

(NASA)

Jubilee Party

Independent Electoral

and Boundaries

Commission

(IEBC)151

Constitution of Kenya

2010; numerous

statutory and

regulatory

amendments in 2016,

2017.152

2017

October 26

Uhuru Kenyatta

(William Ruto)

(Birthday Party opinion poll….)

NASA did not participate- no

electoral reforms to implement

Supreme Court of Kenya

decision in nullifying the August

2017 Presidential Election

results.

Jubilee Party

Token parties

Independent Electoral

and Boundaries

Commission

(IEBC).155

150

IEBC Chair was Ahmed Issack Hassan. The CEO was James Oswago. 151

IEBC Chair was Wafula Chebukati, the Vice Chair was Consolata Maina and the CEO was Ezra

Chiloba…Immaculate Kassait was a major player in most of these elections. She was nominated for appointment as

the first Data Commissioner in 2020. See Njoki Kihiu (2020) ―Immaculate Kassait pledges to actualize Data

Protection if appointed,‖ Capital News, October 28, 2020, at

https://www.capitalfm.co.ke/news/2020/10/immaculate-kassait-pledges-to-actualize-data-protection-if-appointed/

(accessed November 10, 2020) 152

See generally chapter 13 on Electoral Justice in Kenya under the 2010 Constitution implementation, enforcement,

reversals and reforms…

31

Token or Kenyatta sponsored

candidates eg Ekuro Aukot

2019 Punguza Mizigo rejected in

44 counties, approved only

3?153

BBI Report launched in

2020; BBI report validation,

consultation, drafting of

Constitutional Amendment Bill.

Referendum on BBI

Constitutional Amendment

Bill154

4.7.5 KANU Party, Disciplinary Processes in Kenya and Africa

There are at least three key questions regarding political party discipline in Kenya. First, what

are the constitutional questions on party membership, discipline and disciplinary processes?

Second, what are the main issues in the disciplinary process of the major political parties in the

post-2010 Constitutional dispensation. Third, what are the key questions in political party

discipline and disciplinary proceses since independence in 1963?156

The KANU Disciplinary Committee evolved into an organ of stifling dissent while KANU‘s

membership card turned into a magic card for promotion into the civil service and access to state

services and favours. [KANU suspension, expulsion...including 14 fishermen Nyanza who did

not have KANU cards and were (probably) not in the KANU register in the first place.

When Moi left office in 2002, he hand-picked Uhuru Kenyatta who was defeated by Mwai

Kibaki, the NARC presidential candidate.157

Once again a Kikuyu assumed the presidency. In

office, NARC under President Kibaki introduced a number of progressive reforms but like his

predecessors and successors, his government was corrupt and failed to live up to its promises.

Most important, his Government reneged on the pre-election pact to limit the president‘s powers

in 2008 by creating the office of the Prime Minister which would share executive power.

Under Kenyatta (Kamwana) II presidency, the fourth presidency is perhaps one of the most controversial.

Two ICC suspects, Uhuru Kenyatta and William Ruto were sworn in as President and Deputy President,

respectively in an opportunistic alliance of convenience.

Under its watch, insecurity has blossomed leading to critics describing Kenya as ―a terrorist playground‖

and a gradually ―shrinking country‖ following the government‘s inability to remedy the situation. CNN

155

Amendments to the laws to immunize electoral process from scrutiny…. 153

…. 154

…. 156

Chapter 16 on ―Party Participation, Party Programmes, and Party Discipline in Kenya and Africa.‖ 157

The handpicking partly led to Kenyatta Kamwana being referred to as Moi‘s project or Simon Makondes. See

Chapter 9 on President and Deputy President in Kenya and Africa……

32

described Kenya as a ―hotbed of terror‖158

on the eve of President Obama‘s visit to Kenya.159

The above

to assessing Presidents?

4.7.6 Towards de jure and de facto single or dominant party status in Kenya

Basically, de facto means ―by fact,‖ while de jure means ―by law.‖160

Kenya has historically

been through de facto and de jure single party status. In 1964, KANU and the opposition party

KADU merged to pave way for de facto one-party rule in Kenya. In 1969, the de facto one-party

system was affirmed when Jaramogi Oginga Odinga‘s Kenya People‘s Union (KPU) (which had

been formed in 1966 when Jaramogi resigned from Government as Vice President) was banned

and its leaders detained. Although the de facto one-party system was not entrenched in the

Constitution, it was operative with KANU as the only party.

Kenya later witnessed constitutional change or amendment to de jure (by law) single partyism in

1982. Section 2A of the 1969 Constitution was amended to provide that Kenya was to be a

dejure single-party state by abolishing multi-partism. Thus the Kenya African National Union

(KANU) would be the only political party. This contravened the constitutional provisions on

freedom of conscience; expression; association; and assembly, among others. Section 2A was

also inconsistent with constitutional democracy and the rule of law.

Cf. single party, dual party, plural party, multiparty, dominant party in African states.161

For

instance, the African National Congress (ANC) in South Africa,162

Chama Cha Mapinduzi

(CCM) in Tanzania, People‘s Democratic Party (PDP) and its main rival, the All People‘s

Congress (APC)163

in Nigeria164

Uganda under President Yoweri Museveni has had a dominant one-party political system (the

National Resistance Movement (NRM) since 1986, despite the vote to introduce the multi-party

system in Uganda in 2005, meaning that affiliation to the National Resistance Army… with a

stifled opposition) … President Museveni and his NRM harass(ed) opposition candidates in the

run up to the 2021 elections…

4.8 Civil Society Organisations in the Political Process in Kenya and Africa165

Civil Society Organisations include Non-Governmental Organisations (NGOs), trade unions, the

academia, professional organisations, community based organisations among others. The Public

158

Murithi Mutiga (2015) ―CNN executive flies to Kenya to apologise for ―hotbed of terror‖ claim,‖ The Guardian,

Nairobi, August 14, 2019, at https://www.theguardian.com/world/2015/aug/14/cnn-kenya-apologise-obama

(30/10/2019). 159

Murithi Mutiga (2015) ―CNN executive flies to Kenya to apologise for ―hotbed of terror‖ claim,‖ The Guardian,

Nairobi, August 14, 2019, at https://www.theguardian.com/world/2015/aug/14/cnn-kenya-apologise-obama

(30/10/2019). 160

Cf. legal, lawful, juridical, jural, irregular, unprocedural, non compliant, inconsistent, contravene… See also

Chapter … CODRALKA 1 on Regulating and Administering Constitutional Democracy in Kenya and Africa;

Chapter … CODRALKA 2 on Regulating and Administering Education in Kenya and Africa. 161

…. 162

…. 163

…. 164

…. 165

See Chapter 10 of CODRALKA 2, ―The Contribution of Academia and Civil Society in Development, Policy

Making & Budgetary Processes,‖ op. cit.

33

Benefits Organisations Act 2013 (yet to be operationalized) provides for the establishment and

operation of public benefits organizations (previously and commonly known as NGOs).

The PBO Act gives the framework for enhancing good governance of the civil society, fostering

effectiveness and sustainability of the work of CSOs. It also streamlines the interaction and

partnerships between the State, Civil Society among other actors.

―The people‖ in the 2010 Constitution is largely embodied in civil society. A modern (liberal)

definition of civil society regards it as the set of intermediate associations consisting of voluntary

groups. It excludes the state and commercial enterprises or trade associations (Sihanya, 2009).

Significantly, society, or civil society, is itself contested especially between liberal and neo-

Marxist scholars. Prof Eugene Kamenka presents a Marxian definition of civil society as follows:

―Marx follows the usage of Adam Ferguson rather than the more complex discussion in Hegel in

treating civil society as the world of industry and trade, the pre- or extra political world of the

egoistic self-seeking individual standing in a relationship of competition and antagonism to all

other individuals. Civil society, which displays Hobbes‘ war of all against all, is contrasted by

Marx with the pretended universalism of the state: the two require each other but stand in

fundamental conflict‖ (Kamenka, 1983: 525).

Cf. Religious organisations and harambee syndrome.

Religious organisations and loss of legitimacy on electoral and constitutional implementation and

referendum

4.9 Referenda in Kenya and Africa166

What is a referendum?

What is the typology of on referenda?

What referenda have been held in Kenya and what have been their impacts?

At independence in ….question? 2005 on DP or Wako Draft/; 2010 Proposed Constitution of

Kenya…. referendum on Constitution of Kenya 2020?

What have been their outcomes? What is the status of referenda in the Constitution of Kenya,

Nigeria, and South Africa, Uganda…

Consider Draft Referendum Bill167

….168

4.10 Devolution in Kenya and Africa

What is the meaning of devolution? What is its role in participation and representation in Kenya

and Africa?

166

… [to bring some information from Chapter 4 on Public Participation (this chapter-above)- details to go to

Chapter 28 on Constitution Making, Amendment, Interpretation, Construction, Translation, and Implementation and

Reform in Kenya and Africa , to be enriched by taking details from Lancaster House Conference…] 167

David Mwere (2019) ―MPs craft referendum Bill as Kenya awaits BBI report,‖ Daily Nation, November 3, 2019,

at https://nation.africa/kenya/news/MPs-craft-law-to-guide-referenda/1950946-5335294-format-xhtml-

tr2ceiz/index.html (accessed October 15, 2020); Zeddy Kosgei (2015) ‖Okoa Kenya referenda Bill lauched,.‖ April

23, 2015, at https://www.kenyans.co.ke/news/okoa-kenya-referendum-bill-launched?page=3 (accessed October 16,

2020). 168

… find Brexit referendum under EU referendum law? Uncertainty on threshold, etc. Sec….

34

Devolution remains one of the great strides of reform ushered in by the Constitution of Kenya

2010. Some have argued that were devolution as stipulated in the 2010 Constitution to fail, then

it can be said that the Constitution shall have failed. These views are expressed by citizens,

scholars and practitioners who view devolution as one of the greatest initiatives brought by the

adoption of the Constitution of Kenya 2010.169

Devolution of functions under the Constitution focuses on three key parameters or approaches:

the exclusive powers or functions of the National Government; the exclusive power or functions

of the county government; and residual power or functions whereby the Constitution is silent and

does not assign the functions.170

Thus components of the devolution of functions covers the areas in which the National

Government overrides the county government such as national defence and foreign policy;

exclusive educational functions of the county governments; the concurrent functions of the

national and county governments; functions which are not assigned to the national or county

government171

and the general relationship between the national and county governments.

Thus devolution is covered under Chapter 11 and by almost all chapters of the Constitution of

Kenya 2010. The powers and functions of the two levels of Government are listed in the Fourth

Schedule.172

It is the Constitution‘s and the Kenyan people‘s legitimate expectation that the

division of functions and powers will provide the opportunity to address the development

challenges through interdependence, consultation, cooperation and collaboration (Articles 189,

194, 195).

169

Yash Ghai & Jill Cottrell Ghai (2011) ―The promise and the risks of devolution,‖ at

http://softkenya.com/constitution/the-promise-and-the-risks-of-devolution/ (accessed 25/5/2019). See also Peter

Kagwanja (2010) ―Uhuru at last! The new Constitution and the birth of the Second Republic,‖ at

http://softkenya.com/constitution/prof-peter-kagwanja-uhuru-at-last-the-new-constitution-and-the-birth-of-the-

second-republic/ (accessed 25/6/2012). 170

The Fourth Schedule to the Constitution is the main framework for such assignment. Allocation of functions is

largely a matter of interpretation of the entire Constitution, the Fourth Schedule, and the ―devolution laws.‖ Residual

functions are deemed to be reserved for the Central or National Government because it was the extant Government

at the (re-) founding or reconstruction of Kenya in 2010. See Art 186(3) on residual functions. 171

Under the Constitution, the last category belongs to the national government. 172

See Annex 2 on Distribution of Education functions between the National government and the county

Governments (under the Fourth Schedule to the Constitution of Kenya 2010).

35

4.10.1 Devolution, decentralisation, delegation, decongestion, deconcentration and

devolution in Kenya Contextualized173

Source: © Ben Sihanya (due 2020) Constitutional Democracy, Regulatory and Administrative Law in

Kenya and Africa, Vol. 1: Presidency, Premier, Bureaucracy and Administrative Justice in Kenya; Ben

Sihanya (due 2020) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa

Vol. 2: Elections, Governance, Human Rights, the Just Rule of Law, and Due Process in Kenya and

Africa; Ben Sihanya (2004-20) Constitutional Democracy, Devolution and Public Finance, Prof Ben

Sihanya Advocates & Sihanya Mentoring, Nairobi & Siaya.

173

See also Chapter 14 CODRALKA 2 on Regulatory and Administrative Law under Decentralized Government in

Kenya and Africa… (sovereignty, liberty, service delivery…)

Devolution Deconcentration

Sihanya Mentoring Decentralisation

Matrix (Direct, indirect; subsidiarity;

local, autochthonous rule or government)

Delegation Decongestion

US Federalism German

Federalism

Nigerian Federalism Kenyan devolution (sui

generis) or Ugatuzi; 2

levels; Executive and

Legislative, cooperation

SA Provincialism

National Government

1. Exclusive to National Government

(NG)(e.g. in US, Nigeria, South Africa,

Kenya)

2. Exclusive to County Government (CG)

(e.g. in US, Nigeria, South Africa, Kenya)

3. Concurrent jurisdiction

4. Residual jurisdiction (NG) (rationale?)

5. Transferred powers?

6. Co-ordination, consultation (NG & CG

share)

County Government

1. Exclusive to National Government (NG)

2. Exclusive county jurisdiction

3. Concurrent jurisdiction

4. Residual jurisdiction (NG) rationale?

5. Transferred powers

6. Co-ordination, consultation (NG, & CG , or

CG and CD share ) Hence blocs…

Intergovernmental relations;

Intergovernmental Budget and Economic

Council (IBEC); Council of Governors….

Summit; Intergovernmental Technical

Committee

Swiss Confederalism

36

Some of the core questions in devolution and decentralization are six. First, what is

decentralization? It includes delegation, decongestion, and devolution.

Second, delegation means power being shared or granted to a sub-ordinate under the

Constitution, statute, regulation or administrative procedures. For instance, the President to DP

or PM, to DPM….or CJ to DCJ; Speaker to Deputy Speaker…

Third, devolution means allocation of political power and decision making authority with the

appropriate or concomitant resources by the people or the Constitution. Hence funds follow

functions… Fourth, there are at least six (6) types of devolution relevant to Kenya and Africa.

First, US federalism. Second, German federalism. Third, Swiss confederalism. Fourth, Nigerian

federalism. Fifth, South African provincialism. Sixth, Kenyan devolution or ugatuzi.

Fifth, Kenyan devolution is dual: national and county government.174

However, only the

legislative and executive powers are devolved and not judicial powers. Kenya is not a federal

state. It is a unitary state unlike what Kibaki stated.175

Kenya is a devolved sui generis (unique,

distinct, form of devolution…; it is ugatuzi…)

4.11 Citizenship in Kenya and Africa176

Citizenship is at the core of constitutional democracy, regulatory and administrative processes

and law. Citizenship qualifies ―person,‖ people, etc…..

Chapter 3 of the Constitution of Kenya 2010 sets out an elaborate framework on citizenship. The

Kenya Citizenship and Immigration Act, No. 12 of 2011 also makes provisions for the acquisition, loss

and regaining of citizenship, duties and rights of citizens; issuance of travel documents; entry, and

residence and exit out of Kenya.

Citizenship in Kenya may be acquired by birth or registration, and it is not lost through marriage

or the dissolution of marriage.177

4.11.1 Citizenship by birth

The Constitution grants citizenship to children of Kenyan citizens wherever born. Under Article

14 (1), ―a person is a citizen by birth if on the day of the person‘s birth, whether or not the person

is born in Kenya, either the mother or father of the person is a citizen‖

174

Bomas and some had proposed 3-4 levels: National, regional, district, location, village(?). US and Niegrian

federalism are based on federal and 50 and 36 state governments, respectively. In the US, county or local

government falls under state… 175

…. See Jerry Okungu (2007) ―A unitary government for Kenya was a mistake,‖ New Vision, October 16, 2020, at

https://www.newvision.co.ug/news/1215652/unitary-government-kenya-mistake (accessed October 15, 2020); 176

See also discussions in Chapter 1, and Chapter on Bill of Rights and Human Rights in Kenya and

Africa…Chapter 2 on Lancaster Conference… [Summary to come earlier; cf. subject; to link with people in brief;

detailed discussions in Bill of Rights and Human Rights, Chapter 15 below} 177

Article 13 (2) and (3).

37

Anyone holding citizenship of another country is automatically recognized as a citizen of Kenya

by birth, so long as they are able to prove that one or both of their parents is/was a Kenyan

citizen at the time of their birth.178

Kenyan citizens by birth who wish to obtain the citizenship of another country which does not

allow dual citizenship, may voluntarily renounce their Kenyan citizenship. They are entitled to

regain their Kenyan citizenship at a later date by applying in the prescribed manner.

4.11.2 Citizenship by registration

Under Article 15, one can also acquire citizenship by registration. Article 15 (1)- (3) provides:

―(1) A person who has been married to a citizen for a period of at least seven years is entitled on

application to be registered as a citizen.

(2) A person who has been lawfully resident in Kenya for a continuous period of at least seven years,

and who satisfies the conditions prescribed by an Act of Parliament, may apply to be registered as a

citizen.

(3) A child who is not a citizen, but is adopted by a citizen, is entitled on application to be registered

as a citizen.

4.12 Participation and Representation in the Political and Moral Economy & Business,

Industry, Technology in Kenya and Africa

Increasingly, there is debate to balance citizen and people‘s participation and representation in

political economy, economic, cultural and social as well as technological and processes.179

Some of the key platforms for participation in economic, business, trade, investment, and

technological activities are six (6). First, National and County Government ministries,

departments and agencies (MDAs) focusing on the economy and business. Second, private sector

business enterprises including corporations, cooperatives, and partnerships. Third, trade unions

such as civil service workers union, Kenya National Union of Teachers (KNUT), Kenya Medical

Practitioners, Pharmacists and Dentists Union (KMPDU) ….

Fourth, socio-economic projects, some of which address welfare, like Chama. Fifth, NGOs and

religious associations which are increasingly doing business. And sixth, Public Private

Partnerships (PPPs).180

178

Article 14 (1). 179

To cite and discuss freedom of economic or commercial expression, association and assembly in the Constitution

of Kenya, Nigeria, South Africa, Uganda….Freedom from discrimination (Art 27)…Yash Ghai (2002)

―Constitutions and economy,‖ Paper presented at the at the Institute of Economic Affairs (IEA) Annual Conference,

January 18, 2002 at https://www.ieakenya.or.ke/downloads.php?page=Lecture-by-Prof-Yash-Pal-Ghai---The-

Constitution-and-the-Economy.pdf (accessed 30/10/2019); Wachira Maina (2019) ―State Capture: The

institutionalization of impunity in Kenya,‖ The Elephant, Nairobi, August 30, 2019, at

https://www.theelephant.info/features/2019/08/30/state-capture-the-institutionalisation-of-impunity-in-kenya/

(accessed 30/10/2019); Charles Beard (1913) An Economic Interpretation of the Constitution of the United States,

Macmillan Company, New York at http://people.tamu.edu/~b-wood/GovtEcon/Beard.pdf (accessed 30/10/2019). 180

See Political Parties (PPP) Act,2011.

38

4.13 Autochthony in constitutional democracy, regulatory and administrative law in

kenya and Africa

Autochthony relates to the idea of a homegrown, indigenous, nationalist constitution; one that

captures a common history or origin of the people duly constituted into a state; their present or

contemporary challenges and opportunities, and their common future applications.181

Constitutional autochthony is the process of asserting autonomy and hence

constitutional nationalism vis-a-vis an external legal or political power. It is concerned with

instilling sentiments of patriotism, pride, national consciousness and identity in the people of a

given state.182

According to Ben Nwabueze, autochthony, constitutionally, has two main aspects: First, it relates

to the source from which the constitution derives its authority as law. e.g. from imperial authority

or colonial masters or from the local enacting body. 183

Second, it relates to its content i.e. the

frame of government which it establishes and to its contents.184

On constitutional origin, Kenneth C. Wheare writes:

―for some members of the commonwealth, it is not enough to be able to say that they enjoy a

system of government which is in no way subordinate to that of the United Kingdom. They wish

to be able to say that their constitution has force of law and if necessary of supreme within their

territory through its own native authority and not because it was enacted or authorized by the

parliament of the United Kingdom – that is to speak, ‗home-grown,‘ sprung from their own soil,

and not imported from the United Kingdom.‖185

The emphasis given by K.C. Wheare as elaborated by Ben Nwabueze is that since the

constitution is the foundation of the state, it is necessary that this foundation should be made

locally. This is to remove any possible misunderstanding about the status of the country that

might arise from the fact that its constitution was enacted by a former imperial power.186

181

Cf. the definition by The Free Dictionary, at http://www.thefreedictionary.com/autochthony (accessed

22/3/2016). 182

See Nwabueze (1974) Presidentialism in Commonwealth Africa, ibid, at 59. 183

Nwabueze (1974) Presidentialism in Commonwealth Africa, ibid. 184

Nwabueze, Presidentialism, ibid. 185

As cited in Nwabueze (1974) Presidentialism in Commonwealth Africa, C. Hurst & Company, London at 59. See

also articles and books by leading contemporary United Kingdom constitutional and administrative law scholars,

Prof Paul Craig of Oxford University. See Craig, Paul P. (2016) ―Brexit: A Drama in Six Acts,‖ July 11, 2016.

European Law Review, August 2016, Oxford Legal Studies Research Paper No. 45/2016, Available at SSRN:

https://ssrn.com/abstract=280797…; Prof Mark Elliot, Cambridge University. See Elliott, Mark C. (2020) ―The

United Kingdom‘s Constitution and Brexit: A ‗Constitutional Moment‘?‖ May 25, 2020), Horitsu Jiho 15–22,

University of Cambridge, Faculty of Law Research Paper No. 22/2020, at SSRN:

https://ssrn.com/abstract=36099652 Their works have guided the litigation on Brexit (Art 50, …, and on prorogation

of Parliament…) 186

Ghai & Mc Auslan (1970), op. cit. Ghai coined a graphic phrase with reference to developing states: ―the

constitution that came in from the cold.‖ See Ghai (1993) ―Constitutions and Governance in Africa: A

Prolegomenon,‖ in Sammy Adelman and Abdul Paliwala (eds.) Law and Crisis in the Third World, Hans Zell

Publishers, London., op. cit; Ghai, ―A journey through Constitutions….‖ op. cit.

39

The importance of constitutional autochthony, relates to the content and the origin of the

constitution. Whether legal autochthony requires that the constitution be enacted by a native

authority or by an imperial or colonial authority, people‘s aspirations can work in both

circumstances.187

Constitutional reforms can be initiated and realized through implementation of

the constitution. Originalism supplies the historical experiences, precedent and the travaux

preparatoires (or record of proceedings that attended the negotiation and adoption.188

Nationalistic sentiments can be instilled as the citizens look back to the origin, the present state

and future and the future optimistically.189

Autochthony has sometimes been interpreted as Africanisation, Kenyanisation or ethnicisation,

in terms of conceptualising, designing, implementing, enforcing or reforming the Constitution.

But it has sometimes taken the negative connotation of ethnicisation, depending on the ethnic

oligarchy, dynasty, aristocracy or kleptocracy that is controlling.190

At independence, autochthony was a broad-based concept captured in terms of ―African‖ dignity

by the leading theorist, architect and tactician of Kenya‘s Independence Constitution and

nationhood, Thomas (Tom) Joseph Odhiambo Mboya.191

4.14 Summary of Findings and Conclusions on Participation and Representation in Kenya

and Africa

Participation and representation are key elements of democracy. The incorporation of these two

elements in Kenya‘s and Africa‘s political and constitutional; history has contributed to the

relative growth of the democratic space.

Generally, elections and devolution or decentralization have widened the scope of participation

and representation in Kenya and Africa.

187

Hans Kelsen‘s argument that what matters is the efficacy of the grund norm (or constitution); the fact that it is

habitually obeyed. Remarkably, Kelsen affirms that validity is not (necessarily) based on the grundnorm‘s popular

legitimacy or technical validity. It may have originated from a conqueror, or an usurper. The main argument for the

Constitution of Kenya 2010 was autochthony in terms of local origin and local content. It was about popular

sovereignty or popular participation in process and content 188

That is one of the reasons why the US and South African constitutional experiences are increasingly important in

the incorporation, implementation, enforcement and reform of the Kenyan 2010 Constitution. 189

Ben Nwabueze (1974) Presidentialism in Commonwealth Africa, op. cit. 190

Kikuyunisation of the political economy and hence the constitutional process. 191

Tom Mboya (1963) Freedom and Africa, Little Brown, London; Chinua Achebe characterized Mboya and

Nyerere as clear-minded and progressive thinkers as compared to Obafemi Awolowo and Nnamdi Azikiwe (―Zik‖)

who were consumed by ethnic bigotry (especially Awolo), and mediocrity. See Chinua Achebe (1983) The Trouble

with Nigeria, Heinemann publishers, London; Chinua Achebe There was a Country: A Personal History of Biafra

Heinemann Publishers, London. But was Kenya‘s independence constitution largely modelled on or drafted or

recommended by Sir Willliam Ivor Jennings? Cf. William Ivor Jennings (1993) The Law and the Constitution,

University of London Press, ...

40

...the discourse continues in the Oracle‘s Shrine, class, articles, books, online, in the blogosphere,

social media, and 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; 11/2; 2/5;

25/7; 25/10; 30/10; 5/3/2020; 6/3/2020; 3/11/2020; 10/11/2020

email: sihanyamentoring@gmail.com; sihanya@innovativelawyering.com (use both)

url: www.innovativelawyering.com