CONSTITUTION AND CONSTITUTION MAKING

What is a constitution?

A constitution can be defined as a set of agreed principles and rules which state the structure and
powers of a government, and the relationship between the governor and the governed.

- The constitution is the supreme law of the land or a country.

- It birds all people and all state organs at the national and county government.

Factors that determine the form of a constitution

1. The historical background of a country

2. Geographical factors e.g. some countries such as Japan are made up of several islands.
Which must be catered for in the constitution.

3. Religious believers of the people. Some courteous have the Islamic sharia law in their
constitutions e.g. Libya and Sudan.

4. Racial composition – the constitution of South Africa had included the apartheid racial
policy during the apartheid era.

NB – Factors explaining why one constitution cannot be applicable to any other country.

Functions of a constitution

1. The constitution provides the legal ground from when the laws of the country are
made.

2. It spells out the powers to the govern and its relationship to the governed.

3. It spells out the rights and duties of all citizens.

4. It establishes the main organs of state, executive, legislation and judiciary.

5. It creates sub-organs to support principal organs e.g. public service.

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TYPES OF CONSTITUTION

1. Written constitution

2. Unwritten constitution

i. Written constitution

• This are the basic principles governing the state are consciously written down in one
document.

• The 1st serious attempt to write the constitution was made by the Americans after
attaining independence in 1776.

• Their followed by the French.

Features/characteristics of a written constitution

1. It acts as a standard of reference to which the acts of the government of the day may
always be compared.

2. It is rigid document that cannot be easily altered.

3. Is only amended through clearly spelt out procedure which is followed to the utter

4. There must be a special body entrusted by the legislature with the work of drafting the
constitution.

5. Once drafted the constitution must get the approval of the legislature.

Advantages of written constitution

1. Procedures of amending a constitution are clearly spelt out, it is not easy for politicians
and any other group to alter it.

2. The constitution provides clear guidelines on the procedures to be followed in case of

crisis, thus creating stability in a country.

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 3. A written constitution is usually rigid, example recognizes that there exists some
fundamentals in a state e.g. rights of a citizen, powers of the president when should not
be easily changed.

4. A written constitution is fundamental to a newly formed nation.

5. Country as racial diversity grouping, ethnic composition and religion in most countries
are preserved and maintained in written constitution.

6. The constituent unites the people in the nation since it requires recognition and
acceptance from majority of the citizens.

7. It is readily available for reference as all the principles are contained in one single
document.

Disadvantages of a written constitution

1. Written constitution tends to be rigid and cannot be easily altered can fail to respond to
changing circumstances.

2. The constitution tends to make the judiciary too powerful as it is the organ that interprets
the document e.g. lead to executive and legislative to control judiciary for easy
manipulation of the constitution.

3. Some written constitution are too detailed and are rarely understood by ordinary citizens.

4. The procedure for amending the constitution is slow and costly, cause delay which may
lead to civil disorder.

Unwritten constitution

The fundamental principals/rules governing a state exist in many scattered documents and it is
based on customs, that is not contained in one document. Example Britain.

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Sources from which the British constitution is derived from

1. Statues

A statute is an act of parliament and statues that comprises the British constitution include;

a. Act of union with Scotland of 1701. It determined the territorial boundaries within which
the UKs constitution operates.

b. Parliament act of 1911. This statute governs the relationship between the house of
commons and the house of lords.

c. Reform acts of 1832 and 34. Which determine succession to the throne.

2. Customs

Customs refers to ancient or traditional practices or the common law e.g. first born succeed the
king or queen.

3. Law of precedents/case law

This refers to specific rulings made by British courts that had an impact, thus some of these key
judicial decisions become part of the law of the land and are used in subsequent cases.

Reference is made to past cases and judgement when making decisions on current cases.

4. Customs of parliament

It refers to customs and rules of British parliament, example procedures of the houses of
commons and the house of lords, which have been designed to enable the government to function
efficiently e.g. standing orders.

5. Historical documents

The British government also regards some important historical documents as part of the
constitution of the land e.g. The Magna Carta (1215AD) contained promises by the English king
that he would (1) not levy taxes outside the three legal feudal taxes without the consent of the

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legal council. (2) The magna carta stated that no free people would be dispossessed of their land,
outlawed, or imprisoned except after a legal trial.

6. Conventions and practices/conference of members of a profession

Conventions and practices that have become respected over the years are also part of the British
constitution and are understood to be binding (to stick together).

7. Commentaries

These are writing, opinion and assertions of respected scholars.

Advantages of an unwritten constitution

1. It is flexible and adaptable to changing circumstances in the society, like socio-economic

and political changes.

2. It is indigenous and therefore well suited for a state

3. It is simple to amend through a simple ordinary legislative process.

4. It provides continuity with the nations traditions and is therefore accepted and respected
by the people.

Disadvantages of an unwritten constitution

1. Gives the courts too much work in handling judicial matters as they search for
constitutional principles, from different statutes, customs and judicial decisions.

2. It does not protect the rights of the people effectively as the fundamentals are not
contained in one single document.

3. An unwritten constitution tends to be vague and indefinite (lasting on unknown length of

time) as compared to the written constitution.

4. An unwritten constitution assumes that the people are politically conscious and alert and
will ensure that their rights are respected.

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Constitution making process in Kenya in pre-colonial, colonial and post-colonial eras

a. Pre colonial era

• Before the coming of the colonial masters, Kenyan communities were governed by rules
and regulations which were mainly formulated by councils of elders over generations,
which were handed down from one generation to another .

• It was unwritten constitution.

b. Colonial era (1885-1960)

• After the Berlin conference (1884-1885) present day Kenya became a British
protectorate.

• The Anglo Germany agreement of 1886 and 1890 left Kenya and Uganda under the
British control.

• IBEAC (Imperial British East African company of sir William Mackinnon was given the
royal charter to rule the region on behalf of the British government:

• Settlement of immigrant communities like;

i. European settlers

ii. Christian missionaries

iii. Asians, imported on constitutional development in the country as they competed with
Africans for control of political power and economic power.

• This competition even led to explosion of violence of Mau Mau, which resulted to
declaration of state of emergency in 1952, by British governor Sir Evelyn baring. This
marked the beginning of political developments in Kenya.

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 c. Constitutional developments (1923-1960)

• In 1954 colonial secretary Oliver Lyttlton came with a number of constitutional reforms

• The importance of Lyttleton constitution was;

i. Two Indians and one African acquired executive power where B. A. Ohanga
became the 1st African minister (minister for community development – known as
a multi-racial)

ii. Africans were allowed elect African representatives to the legislative council.

• The representatives demanded for more reforms and this led to proposal of new
constitution by sir Alan Lennox – Boyd (New colonial secretary)

• The lennox Boyd constitution not only increased the number of African representative to
the legco but enlarged the council of ministers, where more Africans were represented.

• It is the African elected members in the legco who demanded for a constitutional
conference, which was to be attended by political parties

• This resulted in the convening of the first Lancaster house conference in 1960.

In what ways did lennox – Boyd constitution contribute to the constitutional changes that led to
the attainment of independence in Kenya?

• The constitution led to increased numbers of elected Africans in legco (from 8-14_

• It led to the introduction of multi-racial representation in legco

• It led to the increase of the number of African ministers to 2

State the main result of the Littleton constitutional amendment of 1954

It allowed for the formation of multiracial government/society

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State one change introduced by the Littleton constitution of 1954 that believed the Africans in
the struggle for independence

• It led to the establishment of a multi racial council of ministers to replace the governors
executive council

• In a political organs was lifted/allowed political organs to operate at district level.

State one way in which the Kenya constitution promotes national unity

• Guarantees equal opportunities to all Kenyans

• Provides protection to individual against any form of discrimination in the bill rights

• Provide for unity government

Name the constitutional change that increased the number of the Africans to the legco in Kenya
in 195? The lennox Boyd constitution.

d. The independence constitution (1960-1962)

i. The first Lancaster house conference (1960

• It was the first conference attended by all elected members of legco and 2 nominated
members, one Arab and Somali.

• The demands were;

a. Africans demanded for true democracy said one man one vote

b. Arabs wanted to retain the 10 mile coastal strip and Somalis wanted reunification
with Somali.

c. Europeans were divided, some under Michael Blundell – demanded a mult-----------

government and other group (extremist whites) led by captain Briggs demanded
creation of provinces along racial lines.

• Colonial secretary Ian Macleod – moderated the proposals and;

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 a. Suggested that the legco should have 53 elected members all elected on a common
roll.

b. 20 seats kept side for minority groups out of which Europeans would have 10; Asians
8, Arabs 2.

• On the other hand, the 12 specially-elected national members, who would be elected by
members

• The governor was allowed to nominate his ministers who were; 4 Africans, 3 Europeans,
1 Asian.

• Due to conference it led to formation of Kenya Asian national union with James Gichuru
as president.

• Also another party was formed called Kenya African democratic union and Ronald Ngala
was the president.

• KANU advocated for a unitary system of government and KADU favored a federal
system or regionalization.

• KADU was called upon by colonial administration to form the government but was
heavily dominated by colonial officials, and government. Ngala unable to form
government.

ii. The second Lancaster house conference – 1962

• Due to the rejection of the minority government by the people

• The British authorities called for the second Lancaster house conference by the colonial
secretary Reginold Maulding in 1962.

• The conference was covered in London to resolve some of the issues that were dividing
KADU and KANU led by Ngala and Kenyatta respectfully.

• The issues discussed included;

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 1. The future of the coastal strip which belonged to the sultan of Zanzibar prior to
colonialism.

2. The future of North Eastern part of the country, then known as the Northern Frontier
District.

3. Security of the minority groups.

• So what to be included in the constitution was worked out in Kenya before the
conference and among those who participated in the formation of constitution included;
parties

1. African people party (APP) of Paul Ngei.

2. Kenya Democratic Union (KADU) and Kenya African National Union (KANU )
represented by ngala and Kenyatta.

3. Representatives of the European

4. The representative of the Asian communities.

• Therefore the 1962 conference resulted in constitutional proposal which provided for a
federal structure with a strong central government.

• A coalition government was formed to run the country, drawn from both KADU and
KANU

• The introduction of the constitution was followed by the general elections.

Why was independent constitution of 1963 known as majimbo constitution?

The constitution provided for six regional government/federal system.

Independence of 1963

• General elections were held in 1963 may KANU had a landslide victory.

• 1st June 1963, Kenya attained internal self-government.

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 • Jomo Kenyatta became the 1 st prime minister as queen continued to be head of state
through the governor.

• On 12th December 1963, Kenya attained full political independence, with 1962
constitution.

• Kenya used independence constitution, while making a number of amendments until

august 2010, when new constitution was promulgated.

c. Post – colonial era (1963-2010)

Phase 1: (1963-1991)

• Kenya attained self-government on 1st June 1963

• Kenya attained full political independence on the 12th December 1963.

• KANU formed the government after a landslide victory

• In 1964 with the constitutional amendment transferred ‘Kenya into a republic with a
presidential system of government replacing the parliamentary system of government.
(this means, the president had more power than parliament)

• There were amendments of the constitution since 1964-1969 which led to president
having much power.

• One of the radical amendments was the amendment of section 2A in 1981, which turned
Kenya into a defuse one party state.

• But due to pressure from civil society section 2A again was scraped by parliament in
1991 allowing for multi-party democracy.

Phase II (1992-2002)

• The democracy was given power with the deadline of cold war, collapse of the Berlin
wall and collapse of the soviet union leading to collapse of countries with one party
system.

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 • Donor countries, world bank and IMF (international monetary fund) demanded for
transparency accountability and democracy.

• Later there were a number of charges with coming up with constitutional review headed
by Prof. yash Pal Ghai.

• The change of the constitution was affected when Daniel Arap Moi who dissolved
parliament in preparations for the general elections.

• However, after the national rainbow coalition (NARC) took over the government. The
commission organized the national constitution conference (NCC) at bomas of Kenya.

• Those who attended the conference included all MPs, 42 representatives from political
parties, 3 delegates from each district and 125 representatives of different groups women
groups, youth groups, the disabled trade unions and NGOs which came to be known as
Bomas draft.

Phase III: 2003 – 2010

• The NARC government which displaced KANU from power, had campaigned on
delivering a new constitution within 100 days.

• Political elite never supported the Bomas draft, it decided to amend the constitution.

• Parliament decided to amend the constitution of Kenya by allowing the AG to come up

with the proposed New Constitution (Wako draft) which was presented for the
referendum in 2005, but Kenyans rejected it.

• In 2006, president Kibaki issued a statement of invitation for talks with civil society and
renewal of the drafting of the New constitution.

• In 2007, Kenya went to elections without a new constitution, with Orange Democratic
Movement (ODM) led by Raila Odinga. Competed aggressively against the party of
National Unity (PNU) led by Mwai Kibaki. It was the time when Kenya was in political
crisis – due to violence.

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 • This situation resulted in two main political parties ODM and PNU holding negotiations
mediated by Kofi Annan.

• In 28th February 2008, President Kibaki and Raila Odinga signed the national Accord and
Reconciliation Act, hence getting into a power-sharing agreement.

Charges/provisions of the National Accord

1. A grand coalition government would be established in which the two parties would share
power.

2. Executive authority be divided between the two main parties PNU and ODM

3. Mwai Kibaki to retain the presidency while Raila Odinga as Prime Minister – which
could be removed by a vote of no confidence by parliament.

4. The deputy Prime Ministers positions were created for PNU and ODM.

5. Divided on cabinet posts according to representation in parliament.

In March 2008, parliament amended the constitution and adopted legislation of the agreement.

Give four issues that needed to be addressed immediately after 2007 violence

• Immediate end of violence

• Land reforms

• Reform of the judiciary and the police force

• The resettlement of the internally displaced persons (IDP’s)

Mention two commissions that were set up to investigate 2007 violence

Kriegler commission

Waki commission.

Mention the major historical event that occurred in Kenya in 2003

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NARC (National Rainbow coalition) came to power with President Kibaki the newly elected
president it was a peaceful succession after Moi.

State three reasons why the 2005 referendum failed to pass the new constitution

1. The misunderstanding on the use of Kadhis court where Kenyans felt they would be
under sheria law.

2. The issue of land inheritance where many Kenyans felt that girls should not inherit their
parents land/property once they get married.

3. Political reasons-a-show of might between president Kibaki and leader of the opposition
then Raila Odinga.

Give two causes of the violence in 2007 in Kenya

• Disputed general election results. It was not clear whether Kibaki or Raila won.

• Hate speech that had incited Kenyans against each other based on tribal basis.

• Alleged rigging and election malpractices by PNU (Party of National Unity) and ODM
(Orange Democratic Movement).

Mention two political parties that emerged powerful after 2005 referendum

• ODM – Orange Democratic Party

• NARC – National Rainbow Coalition

Mention a major constitutional change that took place in 2008

• The signing of the National Accord and Reconciliation Act – it was signed by President
Mwai Kibaki and Raila Odinga with Koffi Annan as the mediator.

State factors that gave impetus to the constitution developments in Kenya between 1992-
2002

• Decline of cold war which was marked by the collapse of the Berlin wall and the collapse
of the soviet Union in 1989, this led to struggle for democracy all over the world.

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 • Collapse of one party states especially Eastern Europe also encouraged African states
including Kenya to introduce democratic reforms.

• Global institutions, example World Bank and International Monetary Fund demanded for
transparency, accountability and democracy in the countries of the world.

• Donor countries like Britain and the United States of America also demanded for
transparency accountability and democracy leading to democratic reforms in Kenya.

• Pressure from the civil society, the church media and politicians for reforms and
constitutional review.

Identify related groups and institutions involved in constitution making in Kenya between
1963 and 1991

• The ruling party – Kenya African National Union

• The parliament

• The civil society

• The media

• Western diplomats

Give a constitutional amendment that transformed Kenya into a dejure one party state in
1981

• Introduction of section of 2A in the constitution in 1981

Give a constitutional amendment that allowed for multi-party democracy in Kenya in 1991

The strapping of the clause in section 2A of the constitution in 1991.

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Explain the challenges that faced the national rainbow coalition (NARC) government in
regard to the development of the new constitution in Kenya

• Disagreement and division among the senior members of the coalition mainly on the
implementation of the memorandum of understanding (MOU) developed by the coalition
partners.

• Division within parliament over the draft that would be taken to the referendum. The
political elite did not support the Bomas draft.

• Peoples rejection of the Wako’s proposed new constitution hence voting against it in the
2005 referendum.

• Violence that empted after the disputed 2007 general elections due to claims of election
irregularities.

• Disagreements on the contentious issues in the constitution, for example the issues of
abortion in the right to life.

Who were the personalities involved in engaging PNU and ODM factors in negotiations to
end the political crisis after 2007 general

• Kofi Annan former UN Secretary general

• Giaca Machel Mandela – wife of late Nelson Mandela

• Benjamin Mkapa – former President of Tanzania

• John Kufuor – former President of Ghana.

Give three reasons why the constitution is important in Kenya

• It defines the structure/outlines the functions and powers of various barrettes of

government.

• It clears states the rights/responsibilities of individuals.

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 • It spells out the responsibilities of those in power/limits their authority/promotes good
governance.

• It ensures equality of all Kenyans

• It is the basis of all legislation in the country.

Outline the main contentious (likely to cause disagreements on people) issues identified
during the new constitution drafting process

a. System of government and the executive powers some members preferred a presidential
while others were for a parliamentary system. Others supported a system that would
accommodate the president and prime minister to share executive power.

b. Concerns about the number of senators and members of the lower house due to the fear of
placing a heavy financial burden to the tax payers.

c. On retaining and or vetting the sitting members of the judiciary in the judicial reforms –
the judicial members felt that they were being singled out for undue scrutiny.

d. On devolution – there were concerns on the levels of devolution and on the impact of
devolution on minority groups and the capacity for implementing devolution process.

Stages/requirements/steps in the constitution making process

1. Debate over contentious issues

• It came from different sections of government example removal of section 2A

which made Kenya adjure (one party state in 1981).

• Whether to introduce the position of a prime minister or not in the constitution.

2. Collection of public views

• Different issues in the constitution goes for debate e.g.

i. Election rules and regulations

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 President Moi established a constitutional review committee chaired by Prof.
George Saitoti which was mandated to collect views of Kenyans in the entire
country concerning the above issues and commission led by Yash Pal Ghai
collected views from Kenyans on constitutional review process.

3. Civic education

This was meant to explain to the people of Kenya the implications of constitutional
review on their lives, social-economic and political aspects at the local, national and
international level. For example the constitution of Kenya review commission (CKRC)
was mandated and funded to conduct civic education.

4. Convening of constitutional conferences

These are conferences held to negotiate over the contentious issues. Example, the
national constitutional conference at Bomas of Kenya in 2002.

5. Drafting of the constitution

• This is a technical process by experts, local and international

• The process is meant to ensure that the constitution is drafted well and without
unforeseen legal implications.

6. Referendum

This is a democratic process of seeking peoples approval of the proposed constitution

example in 2005 referendum voted against the Wako draft and in 2010 referendum voted
for the proposed new constitution. (are drafted and taken to AG).

7. Enacting the constitution

• The parliament enacts the constitution, if approved by the people

• The enactment makes the document the supreme law of the land.

8. Promulgation of the constitution

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 This means, presentation of the constitution to the people by the president, who declare it
to be the new law of the state. This was done on 27/8/2010 at Uhuru Park before the
public and international dignitaries

Features of the independence constitution of Kenya (2008)

• It provided for a governor general who was the head of state on behalf of the queen. E.g.
he/she had powers of; defense of the country, foreign affairs, internal security, approval
of legislation.

• It provided for an independent judiciary to ensure justice and to prevent corruption.

• It set up a judicial service commission to appoint judicial officers

• It provided that the governor in consultation with regional authorities and the prime
minister appoint the chief justice.

• It provided for six regional governments and assemblies whose power included control of
land, education, health and the police.

• It entrenched rules of citizenship and fundamental rights of citizens

• It specially provided for the establishment of the public service commission and the
central land board to ensure fair and effective government.

• It provided for the position of a prime minister as the head of government.

• It provided for the tenure of the office of the judges and the attorney general

• It provided for a multi-party democracy where the party with majority in the parliament
formed the government.

• It entrenched the amendment procedures such as that a special majority of 2/3s majority
rises required number required to change the constitution.

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 • It provided for the separation of powers for three arms of the government/executive,
judiciary and legislature

• It provided for a bicameral house/senate and House of Representatives.

Features of the new constitution of Kenya or features of the constitution

1. The sovereignty of the people and supremacy of the constitution – states that all
sovereign power belongs to the people of Kenya and shall be exercised in accordance
with the constitution both in the national and country levels.

2. Republic – declares Kenya as a sovereign republic, a multiparty state, democratic state,

recognizes the counties, state organs, national symbols, national days, Kiswahili as a
national language while Kiswahili and English are official language.

3. Citizenship – recognizes the Kenyan citizen and their entitlements to privileges and
benefits of citizenship. Ways of acquiring Kenyan citizenship, provisions of dual
citizenship and how one can be revoked.

4. The bill of rights – guarantees enjoyment of the rights and fundamental freedoms entitled
to every person and their protection.

5. Land and environment – it stipulates that all the land in Kenya belongs to the people of
Kenya collectively as nation, communities and individuals.

• Land is Kenya is classified as public land (land lawfully held or occupied by state
organ) e.g. roads

• Community land – land vested in communities identified on basis of culture,

ethnicity or community interest (Bogoria game reserve)

• Private land – registered land held by any person under any free-hold tenure.

• Non-citizen can be leased land for 99 years.

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6. Leadership and integrity – this provides for the constitutional conduct of state officers
and the basis on which they are selected and disciplinary procedure to be followed.

7. Representation of the people – it provides the guiding principles to the electoral process
in the country, methods of conducting election and qualifications of candidates. Also
establishes independent electoral and boundaries commission (IEBC).

8. The legislature – provides for a bicameral legislative in Kenya comprising of the national
assembly and the senate.

9. The executive – it stipulates the structure, duties and other provisions performing the
national executive which is the president, deputy president, attorney general and cabinet
secretaries.

10. The judiciary – provides for the structure duties and other provisions in Kenya judicial
system that the courts and judicial service commission interprets the law and administers
justice.

11. Devolved government – provides for the structure of the devolved government of Kenya
that is national and county governments which are 47.

12. Public finance – provides for the collection custody and expenditure of all the money
collected by the national and county governments.

13. The public service – it stipulates the values and principles of public service. Public
service commission is established to identify and appoint competent personnel to the
national public service.

14. National security – it identifies organs of national security such as the Kenya defense
force, national intelligence service, national police service, the organs will be supervised
by the national security council.

15. Commissions and independent offices – it also creates commissions and independent
offices to undertake specific duties. The commissions include;

• Judicial service commission

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 • The Kenya national human rights and equality commission

• National land commission

• Independent electoral and boundaries commission

• Parliamentary judicial service commission

• The teachers service commission

• The offices of controller of budget and the auditor general are protected by the
constitution

The commissions and independent offices are answerable to parliament and the
president by submitting reports every year.

16. Outlines the amendment of the constitution

Most of the provisions can be amended by 2/3 majority vote by parliament, others
required a referendum.

17. General provisions

It provides guidelines on the enforcement, interpretation of the constitution. Every

person acting on their own behalf or on behalf of others has the right to institute
court proceedings, claiming that the constitution has been contravened.

18. Transitional and consequential provisions

These are guidelines to ensure that the time table for implementation of the new
constitution is adhered to. Parliament is empowered to enact the necessary legislation
within a specified time.

Constitutional amendments in Kenya since independence

Major amendments in the independent Kenyan constitution

Constitutional/changes which took place in Kenya between 1954 and 1963

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 • The Littleton constitution of 1954 led to the appointment of the first African minister and
nomination of other African leaders to the legislative council

• In 1957 the first all races elections were held and Africans were elected in 8
constituencies.

• The lennox Boyd constitution gave more seats to Africans from 8 to 14 members for the
first time more Africans were elected to the legco.

• The first Lancaster house conference of 1960 gave Africans more seats in the legco. Thus
African representation moved from 14 to 33 members.

• In 1960 the state of emergency was lifted and Africans were allowed to form country
wide political parties. National political parties KANU and KADU were formed.

• The second Lancaster house conference drew up the independence constitution Kenya
was to become majimbo/a federal state.

• In 1961 the first general elections were held and KANU won both refused to form the
government until the release of Kenyatta. KADU formed the government with Ngala as
leader of government business.

• KANU and KADU formed a coalition government Ngala and Kenyatta became the two
leaders of the government.

• On June 1st 1963 Kenya got internal self-government with Kenyatta as the 1st prime
minister.

• On December 12th 1963 Kenya attained full independence.

Constitutional changes which took place in Kenya between 1963 to 2010

• In 1964 the republican constitution replaced the independence constitution. Kenya

became a republic with an executive president.

• In 1966 the two houses of parliament, the senate and the house of representative were
merged.

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• A member who resigned from the party that sponsored him/her was required to seek a
fresh mandate from the electorate on the ticket of the new party.

• For any constitutional amendment to be approved/affected there had to be 2/3 majority of

the members of parliament.

• People could be detained on public interest (public security act)

• The president was empowered to nominate 12 members of parliament.

• In 1968 parliament lost control over the changing administrative boundaries.

• The presidential election was to be done directly by the people who qualified to vote.

• If the presidency feel vacant elections were held within 90 days to fill the vacancy as the
vice president acted.

• The president was empowered to post pone elections when and if he/she finds it
necessary and also to shorten the life of parliament.

• 1975 president could pardon election offenders enabling them to contest in future
election/by-election.

• In 1982 Kenya became a one party state by law.

• Security of tenure of office of the attorney general and controller audit. General were
established.

• The post of the chief secretary and head of civil service was established

• In 1987 the post of the chief secretary was abolished.

• The president was empowered to dismiss the attorney general the controller and audit
general at will.

• In 1988 the president was empowered to dismiss high court judges and the chairman of
the public service at will.

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• The police department was empowered to hold suspected criminals for a maximum of 14
days before taking them to court if the crime was constituted a capital offence.

• 1990 parliament guaranteed the tenure of office of attorney general, the controller and
auditor general.

• 1991, parliament passed an amendment of reverting to multiparty by repeating section 2A

of the constitution.

• 1997 the inter party parliamentary group was established. It proposed several
constitutional changes that were to be enacted before the 1997 general elections.

• 1998, an act of parliament was passed on the purposes and method of constitutional
review the new constitution be based on principles of democracy, accountability, human
rights, peoples participation and social justices.

• 2000, parliament passed a bill to entrench the constitution of Kenya review commission
(CKRC) into the independent constitution to give the review process a legal bulking.

• 2005, the constitution of Kenya review commission act was amended to allow Amos
Wako the attorney general to review the Bomas Draft and come up with the proposed
new constitution (Wako draft)

• 2007, parliament drafted a bill called the constitution of Kenya review bill 2007 to revive
the constitutional review process.

• 200, the parliament amended the constitution to give legal backing to the national accord
and reconciliation act and legalize the coalition government.

• The constitution of Kenya review act was set up.

• Which led to 4th August referendum of 2010

• Referendum ended and in favour of the new constitution which was finally promulgated
on 27th August.

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Main changes in the new constitution of Kenya that was promulgated on 27th August 2010

1. Reduction of presidents executive powers

2. Devolution of power to regions by the creation of national and county governments.

3. Creation of the senate and the national assembly constitute the parliament.

4. Establishment of a judicial service commission (JSC) to ensure independence and

accountability of the judiciary.

5. Birth and registration are the only recognized ways of attaining Kenyan citizenship. Dual
citizenship is also recognized.

6. Creation of land commission to ensure effective land use and settle land disputes.

7. Recognition of the kadhis courts as subordinate courts in the judicial court system.

8. Expansion of the bill of rights to include gender issues and application of the Kenyan bill
of rights to specific groups of people in Kenya example the disabled.

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