A.7 Kenya [2005; 2010]

Kenya’s independence constitution, with a parliamentary and federal system, was amended after one year to merge the offices of head of state and head of government, giving the president enormous powers. The federal system was abolished.

After years of Kenya being a one-party state, a struggle for constitutional democracy led to limited reforms, and later agreement was made through national conferences for a full review of the constitution by a constitutional assembly, the National Constitutional Conference.

The Constitution of Kenya Review Commission was set up to prepare a draft to go to the conference. The twenty-nine commission members were either lawyers or people with experience in public life. Most members, however, were chosen partly because of their links with political parties.

The commission used some NGOs for civic education, but it produced its own educational materials and did some educational work. It held at least one meeting in each parliamentary constituency to collect views. Translators were provided if the local language was different from the national languages, and sign-language interpreters were available.

Everything was recorded. The commission received thirty-six thousand submissions in writing. All submissions were statistically analyzed (over several months) and the results were made widely available. Popular participation was enthusiastic. The commissioners were much influenced by the poverty they saw and the people’s critique of the system.

After three intensive weeks, the commission produced the draft constitution and a report. Public consultation followed. It had been reduced because of delays in the process, but the next stage (the National Constitutional Conference) was delayed for some months because of parliamentary elections.

There were 629 members of the conference. All 222 members of parliament were members, each district elected three members, and about a third were chosen by civil society. The chair chose a small number to ensure proper representation of insufficiently represented but important groups.

The conference’s proceedings were lively, and highly political. There was a good deal of manipulation and some bribery. Some issues, especially the system of government, were divisive. Decisions were made by consensus, failing which an article had to be accepted by two-thirds of the delegates voting. Deadlock could have been broken by a referendum on disputed issues. This would have been complicated; fortunately, it was not needed.

Just as the conference finished its work, a court held (somewhat unconvincingly) that a referendum was necessary. The government persuaded the parliament to endorse a draft constitution that was different in important ways from what the conference had adopted. The people rejected the draft referendum. Some voted against it because they preferred the earlier draft, some because of general dissatisfaction with the government, and some for tribal reasons.

Postelection violence in 2008 led to an internationally brokered agreement for reform, including a new constitution. A new law required a committee of experts that would include three foreigners and six Kenyans. It was directed to use existing drafts, but to concentrate on resolving contentious issues. Its draft owed a lot to the National Constitutional Conference draft. After public consultation the draft was revised; then it went to a parliamentary committee, back to the committee, and then to parliament. The existing constitution indicated that parliament could propose changes (with a 65 percent majority) but was otherwise not required to approve the draft. Actual adoption was to be by referendum, in which a majority of the votes had to be cast in favor, plus at least 25 percent affirmative votes in at least five of eight provinces, for adoption. The referendum took place in August 2010, with more than 67 percent of those who voted approving the constitution. It came into force when the president promulgated it later that month.