Constitutional amendments and the constitutional Amendment process in Kenya (1964-1997) a study in the politics of the constitution

Abstract

The Constitution of Kenya was amended twenty eight times between 1964 and 1997. Cumulatively the amendments radically altered both the institutional structure and the legal content of the Constitution. Similarly, they fundamentally re-designed the structure of the post independence state. Ostensibly the amendments were mode in order to facilitate effective governance and to make the Constitution more autothonous. In reality, the use of the constitutional amendment process was opportunistic, self-serving and manipulative of the constitutional order, with the intention of serving partisan and parochial politics. Consequently, a crisis of both legitimacy and relevance confronted the entire constitutional order. In effect, the amendments consolidated personal rule over institutional rule, institutionalized political expediency as the yardstick for constitutional change and undermined the claim of the Constitution as the basic low and the fountain of political stability. Structurally, the integrity and autonomy of the institutions created under the Constitution was severely distorted, eroded and undermined. Not surprisingly, respect for and adherence to Constitutionalism and the rule of low have been seriously compromised. To the extent that Constitutions are meant to subject political activity to a set of predetermined rules, the constitutional amendments in Kenya effectively shifted the goal posts thereby distorting the competition for power and undermining constitutional democracy. Predictably, the manipulation of ix

the Constitution through amendments spawned a crisis in the constitutional order. The current constitutional crisis presents itself both as a crisis of legitimacy and of expectations. This study has a number of objectives. First, is to understand the nature and scope of the constitutional amendments that were effected between 1964 and 1997 and the impact of those amendments on the structure and content of the Constitution. Secondly, is to understand the dynamics that have galvanized the constitutional amendment process. Thirdly, is to understand the role played by the judiciary in the constitutional amendment process. Finally, is to understand the impact of the various amendments on the state's capacity to adhere to constitutionalism and the rule of law. It surveys the history, jurisprudence, sociology and politics of the constitutional changes effected through amendments to the constitution of Kenya between 1964 and 1997 by examining both the process of constitutional change and the substance of the changes. Several themes are explored in the study. First, the study investigates the history of the making of the Constitution of Kenya. Secondly, the study seeks to understand the limitations of the Independence Constitution and the dynamics that gave the impetus for constitutional amendment. Thirdly, the study seeks to understand and explain the role of the judiciary in the constitutional amendment process. Finally, the study seeks to understand the effect of the constitutional amendments on political institutions and political life in Kenya. x

The central thesis of this study is that the Constitution and the constitutional process are eminently political os they embody political values and choices. Consequently, the challenge of constitutional scholarship must be to understand the ontological causality between the form of government a constitution endorses and the socio-economic structures of the society to which it is applied. In this regard, the study of constitutional low and constitutional politics demands more than the abstraction of constitutional controversies from the world of politics and subjecting them to the sterile rules of interpretation. It entails more than merely on appreciation of the substantive legal provisions of the Constitution and requires on appreciation of the socio-political dynamics that find expression in these provisions and the underlying struggle between various groups in society to structure public power and the governance process in the manner most advantageous to them. Further, it is argued that the constitutional amendment process is a window through which constitutional lawyers, political scientists, sociologists and historians are able to examine the political societies struggle to give legal expression to the various forces demanding articulation within the polity. It is therefore a process that tells us much more than what the constitution has been amended to soy at any given historical time. Significantly, it tells us why this is the case. It tells us much about the complex process of subjecting the political process to the governance of rules, structuring public power, drawing the power mop and allocating public resources. Finally, it also tells xi

us much about the even more complex forces in society that impacts on the process of law making generally and constitutional making in particular. In the specific context of Kenya, the study postulates that on the one hand, the process of constitutional amendment has been part of a larger political program seeking to develop indigenous domestic institutions, against a background of political instability caused by the struggle to contain class, racial, ethnic, religious and other differences that the independence constitution and the constitutional process subsumed in broadly worded guarantees of equality and which were assumed would thereafter pose no constitutional problems. On the other hand, the amendments have reflected the attempt by the power elite to manipulate the levers of power to exclude or at least minimize the competitiveness of politics. In this respect, the amendment process has been part of the political process of limiting the arena of competitive politics by making opposition to incumbent power very difficult. if indeed not virtually impossible. Thus in the constitutional history of Kenya, partisan politics has been the major determinant of not only, the proposals for amendments but also of the content of the amendments and the interpretation of the said amended Constitution.