Ten years ago, Kenya ushered in a new era with the promulgation of a new constitution. This new constitution differed greatly from the ones that had been in existence before. Most notably, this was the first constitution in which wananchi were given an opportunity to participate, not only in the drafting process, but also in deciding whether they agreed to the terms spelled out or not. But getting to this point in time was many years in the making, and it dates all the way back to the 50s.
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Shortly after the Mau Mau uprising, Oliver Lyttleton, Britain’s Secretary of State for the Colonies, introduced a constitution in Kenya as a way to ease the unrest. One small benefit the Lyttleton Constitution had for Africans was that it allowed for the election of Africans as unofficial members of the Legislative Council (LegCo) from 1957. Previously, African members had been nominated by the colonial government, with Eliud Mathu being the first nominee in 1944. But one drawback this constitution had, which ultimately led to its dismissal, was its establishment of multi-racialism.
Multi-racialism was a constitutional order which necessitated sharing of political power among racially defined political groups, with the most influential roles set aside for the small European settler community and the minor roles given to the country’s African majority. The Lennox-Boyd Constitution, which replaced the Lytletton Constitution in 1958, also subscribed to this school of thought. This ideology failed to please either race, with the settlers unhappy about Africans acquiring representation, and Africans still feeling like they were scraping the bottom of the power barrel.
In 1960, with Kenya’s self-rule on the brink of realization, the British government decided to move away from multi-racialism. That year, the first constitutional conference took place at Lancaster House in which African leaders were invited to attend. This resulted in drafting of the Macleod Constitution, whereby Africans were given the majority number of seats in government.
Two years later, Kenya became a jamhuri, and as so, deserved a new constitution. But even in this constitution, the country’s independence was not yet absolute. The constitution still recognized the Queen of England as Head of State. As the years went by however, the vestiges of colonial rule began to dissipate, and the constitution was amended to reflect these sentiments. In 1964, the president finally replaced the monarch as Kenya’s Head of State.
In 1969, a new constitution formally brought together all the changes that had been made to the Independence Constitution. This remained the constitution until 2010, albeit with several amendments made to it over time. Still, this constitution was based on the standard Lancaster House template, and so did not fully reflect the Kenyan reality.
The first draft of a proposed new constitution was produced in September 2002. Changes were made to this, and in March 2004, a draft constitution was adopted. Then, two things happened: first, the courts decided that a referendum was necessary to adopt a new constitution, and second, Parliament changed the law to enable alterations to be made to the draft. After making significant changes to this draft, a referendum was held in November 2005, and the altered draft was rejected by 58 per cent of the voters. Still, hope remained that one day, Kenya would have a constitution that was entirely her own.
The 2007 general election was sadly followed by post-election violence in which many lost their lives and livelihoods. During the reconciliation talks chaired by Kofi Annan, retired Secretary-General of the United Nations, it was recommended that the constitution making process should be revived. There was a feeling that, perhaps, there were features of the constitution at the time that made violence more likely. So the agreement included that a new constitutional review process would be set up.
On August 4th 2010, after three years of drafting, a second referendum was held. 68 per cent of voters cast a yes ballot, thereby voting in a new constitution. The new constitution was promulgated on August 27th that year at Uhuru Park, thus marking an end to the constitution making process. This momentous occasion was witnessed by millions worldwide as a memorable way for Kenya to usher in a new decade.
