Constitutional Changes Leading to Independence and the Structure of the Central Government of Kenya

Constitutional Changes Leading to Independence

• The Nature of the Kenyan Constitution

  • The Constitution of Kenya serves as the supreme law of the Republic.

  • It binds all persons and all state organizations at every level of the government.

  • The document embodies the fundamental principles by which the nation is governed.

  • Prior to 2010, the nation was governed by a constitution established before independence.

  • The development of the pre-2010 constitution involved two primary meetings held at "Lancaster House in Britain."

• Britain’s Policy of De-colonialization (1960)

  • In $1960$, Harold Macmillan (British Prime Minister) announced his government's decision to grant independence to Kenya following the creation of an acceptable constitution.

  • Drivers of De-colonisation:

    • Military Pressure: Kenyans conducted a bitter war of liberation between $1952$ and $1956$ via the Mau-Mau.

    • Political Pressure: Kenyans agitated for constitutional reforms through trade unions.

• The 1st Lancaster House Conference (January 1960)

  • Convening: Organized by Ian Macleod, the new Secretary of State for Colonies, at Lancaster House, London.

  • Attendees (African Leaders from the Legislative Council/LegCo):

    • James Gichuru

    • Oginga Odinga

    • Tom Mboya

    • Ronald Ngala

    • Masinde Muliro

    • Daniel Arap Moi

  • Key Agreements and Outcomes:

    • LegCo Expansion: The Legislative Council was enlarged to $65$ members.

    • Voting Rights: All adult Kenyans over the age of $40$ (irrespective of race) were eligible to vote. Alternatively, those over the age of $21$ who were literate (able to read and write) were permitted to vote.

    • Council of Ministers: A compromise of $12$ members was established, with $4$ seats reserved for Africans.

    • Political Organizations: Kenyans were permitted to form nationwide political organizations.

    • Property Rights: Full compensation was guaranteed for any private property taken over by the government.

    • Bill of Rights: A Bill of Rights was to be incorporated into the national constitution.

    • Significance: The conference established an African majority within the LegCo, though a specific independence date remained unset.

• African Ministers Appointed Post-1st Lancaster Conference

  • Ronald Ngala: Minister for Labour, Social Security, and Adult Education.

  • Julius Gikonyo Kiano: Minister for Commerce and Industry.

  • Musa Amalemba: Minister for Housing, Common Services, Probation, and Approved Schools.

  • James Nzau Muimi: Minister for Health and Welfare.

The Second Lancaster House Conference (1962)

• Overview

  • Timeline: Convened from February $12$, $1962$ to April $2$, $1962$.

  • Leadership: Chaired by Reginald Maudling, the new Secretary of State for Colonies.

  • Objectives: To outline the constitution for an independent Kenya and establish a definitive date for independence.

• Main Kenyan Delegations

  • Kenya African National Union (KANU): Formed in March $1960$. Advocated for a Unitary constitution with a strong central government.

  • Kenya African Democratic Union (KADU): Formed on June $25$, $1960$. Advocated for a Federal constitution (Majimbo) to ensure autonomous regional governments.

• Outcomes of the 2nd Lancaster House Conference

  • Regionalism: Establishment of $6$ autonomous regions, each with its own legislative assembly: Central, Eastern, Nairobi, Coast, Rift Valley, and Western.

  • National Legislature: Creation of a bi-cameral National Assembly comprising a Senate and a House of Representatives.

  • Executive Structure:

    • Head of Government: The Prime Minister (leader of the party with a majority in the House of Representatives).

    • Head of State: The Governor General and Commanders-in-Chief representing the Queen of England.

  • Protection of Minorities: The constitution was specifically designed to protect the interests of smaller African communities.

  • Coalition Government: A KANU and KADU coalition was formed in $1962$ to manage the transition until the independence elections.

• The Path to Independence (Uhuru)

  • May 1963 General Elections: KANU won with $73$ seats. Jomo Kenyatta (KANU President) was invited to form the government.

  • Internal Self-Government (Madaraka): Achieved on June $1$, $1963$, with Jomo Kenyatta as Prime Minister.

  • Full Independence (Uhuru): Achieved on December $12$, $1963$.

  • Republic Status (Jamhuri): On December $12$, $1964$, Kenya became a republic, and Jomo Kenyatta became the first President.

The Central Government of Kenya and the Executive

• Branches of Government

  • The Constitution establishes three distinct branches to ensure the principle of separation of powers and non-interference:

    • Executive: Implements laws and ensures they are observed.

    • Legislature (Parliament): Composed of elected and nominated representatives; functions to make laws.

    • Judiciary: Interprets and applies the law.

• The Executive Arm

  • Composition: Comprised of the President, Vice-President, and Cabinet Secretaries.

  • Functions of the President:

    • Acts as Head of State and Head of Government.

    • Responsible for the formation of the government.

    • Commander in Chief of the armed forces.

    • Chairs cabinet meetings.

    • Appoints Cabinet Secretaries, the Attorney General, Ambassadors, and other key officials.

    • Acts as the official spokesman for Kenya both domestically and internationally.

    • Empowered to nominate up to $12$ members of parliament.

    • Empowered to appoint a commission to manage public resources.

• The Cabinet

  • Composition: President, Vice-President, Cabinet Secretaries, and the Attorney General.

  • Roles of the Cabinet:

    • Advises the President on national governance.

    • Acts as a group to decide on the formation of policies.

    • Accepts delegated duties to represent the President at domestic or international meetings.

    • Presents and explains government bills to Parliament.

    • Responsible for policy implementation via civil servants.

  • Attorney General: Leads the Department of Justice and serves as the government's legal advisor. Current holder: Dorcas Agik Odour.

The Legislative Branch (Parliament)

• Structure

  • Kenya utilizes a bi-cameral parliament at the national level, consisting of two houses: The Senate and the National Assembly.

• The Senate

  • Known as the "Upper House" of the Kenyan Parliament.

  • Composition (Total of 68 members based on breakdown):

    • $47$ members directly elected by their respective counties.

    • $2$ youth representatives (one woman, one man).

    • $16$ women nominated by political parties.

    • $2$ representatives for people with disabilities (one man, one woman).

    • $1$ Speaker.

  • Leadership: The current Speaker of the Senate is Amason Kingi.

  • Primary Functions:

    • Representing the interests of counties and county governments.

    • Participating in law-making by debating/approving bills concerning counties.

    • Determining the allocation of revenue among counties.

• The National Assembly

  • Symbolizes national unity and represents the people of the constituencies.

  • Also known as the House of Representatives.

  • Composition (349 total seats):

    • $290$ members elected from constituencies.

    • $47$ women elected from the counties.

    • $12$ nominated representatives.

  • Leadership: The current Speaker of the National Assembly is Moses Francis Wetangula.

• Roles and Functions of Parliament

  • Role of the Speaker: Swears in members, maintains attendance records, receives and organizes items for debate, facilitates communication between members, and ensures adherence to rules of parliamentary debate.

  • General Functions:

    • Making and amending laws.

    • Controlling Public Expenditure: They review annual budget proposals and have the power to accept or reject the use of public funds for investments or loan repayments.

The Judiciary

• Structure and Purpose

  • Consists of the Chief Justice and the Deputy Chief Justice.

  • Core Functions: Interpreting laws, administering justice via legal trials, and ensuring justice is applied equally to all individuals.

• Types of Courts and Hierarchy

  • Supreme Court: The highest court in the nation. Its decisions are binding on all other courts.

  • Court of Appeal: Handles cases appealed from the High Court.

  • High Court: Supervises all subordinate courts.

  • Employment and Labour Relations Court: Determines disputes regarding labor, employment, and related issues.

  • Environmental and Land Court: Deals with disputes concerning the environment, land occupation, and land titles.

  • Subordinate Courts (Magistrate Courts): Located in every district; they hear the majority of cases in Kenya.

  • Kadhis Court: Headed by the Chief Kadhi, dealing with civil matters (divorce, succession) under Sharia (Islamic) law.

  • Martial Court: A military court for defense force matters; appeals from this court are heard by the High Court.