GPR 110 Constitutional Law II

GPR 110 Constitutional Law II Lec: Dr.
Bernard Sihanya
Wed 12/04/06
- Get my hands on a copy of the course outline. Constitution of Kenya, US, South
Africa, Uganda, Germany and any other useful one.
Topics to be covered
- Kenyas constitutional history (The Presidential political power-play).
- Separation of powers.
- The Executive.
- The prime minister and the cabinet ministers.
- Political organizations and parties.
- The Legislature and parliament.
- Parliamentary sovereignty.
- The codes and process of judiciary.
- Fundamental rights and freedoms.
- Roles of organizations e.g. political parties, commissions of inquiry, non-
governmental organizations.
- Coalition building and coalition governance: Coalitions, mergers, alliances,
cooperation e.t.c.
Things to get
- The constitution of Kenya (at no. 5 of 1961)
- The Bomas draft (15th March 2004 onwards)
- The Wako draft.
- The Political parties bill 2005.
- The National Assembly & Presidential Elections Act. (When you get your hands
on it, look for the Ngei Amendment.)
- Election Offences Act (Cap 66 of Laws of Kenya.)
- National Assembly (Powers and Privileges) Act (Cap 60 of Laws of Kenya) (Look
for the clause that says that anything said in the House of parliament cannot be
used against the person who said it in a court of law and such.)
- Presidential Retirement Benefits Act 2003
- Constitution of Kenya Review Act.
- EAC constitution, EU Community constitution, the bill of rights.
- The constitutions of political parties: KANU, LDP, NPK, Narc Kenya, DP, Ford
Simba, Ford People.
Books to read
- Prof Y.P.Ghai and J.P.W.B. McAslan {BOOK TITLE}.
- J.B. Ojwang Constitutional Development in Kenya.
- B.O. Nwabueze Presidentialism in commonwealth Africa.
- Paul Jackson and Patricia {LAST NAME}- Constitutional Administration.
- Prof Laurence Tribe American Constitutional Law (Look up what happened in
Florida in the year 2000 that concerns him)
- Kathleen Sullivan & Gerald Gunther Constitutional Law.
- Vicki Jackson & Mark Tushnet Comparative Constitutional Law.
GPR 110 Constitutional Law II Lec: Dr. Bernard Sihanya
- Articles by Prof Elisha Stephen Atieno Odhiambo.

- Africa The formative years (A History book)
Kenyas Constitutional Law

1884
- Berlin Conference: Britain, Germany, France, Spain, Italy e.t.c. The Scramble
for Africa.
- At the same time, German and British explorers came and signed treaties with
African leaders. Britain was also reluctant to commit itself fully to the African
colonies and so a chartered company was created to do this i.e. Imperialist British
East African Company (IBEACo.)
1895
- On 15th June, Kenya becomes a British protectorate.
1896
- The constuction of the Kenya Uganda Railway begins.
1897
- The East Africa Order in Council (Judicature Act.)
1901
- The Order was revised.
1904
- The Anglo Maasai Agreement was formed. According to the agreement, the
maasais were moved to Laikipia so that the whites could settle in the highlands.
Lenana signed the agreement.
1906 - 1907
- Leg Co. was formed.
1911
- The 2nd Anglo Maasai Agreement was formed. This time, the Maasais were
required to move further south because the whites were interested in Laikipia. The
Maasai decided to fight back through litigation, see Ole Njogo vs. A.G.
1910 - 1920
- There was a lot of argument about lost lands. Especially from the Kikuyus and
Maasais. There were also feelings of resentment towards the Kipande system and
forced labour.
- Forced labour.
1914 - 1918
- The 1st World War.
The White mans burden

Take up the White mans burden
Send forth the best ye breed
Go, bind your sons to exile
To serve your captives need;
To wait in heavy harness
On fluttered folk and wild
Your new-caught, sullen people,
Half-devil and half-child.
- Rudyard Kipling [1898]
- This poem, and a countless other examples, shows how history can change depending
on who is writing it.
1920
- Kenya becomes a British colony.
1922
- Some incident occurred in Norfolk hotel (Look it up) and Harry Thuku was arrested.
1925
1934
- Kenyatta is in UK. He studies in the London School of Economics under a
lecturer named Molinowski, a renowned anthropologist.
1938
- Kenyatta writes Facing Mount Kenya.
1939 - 1945
- The 2nd World War. Lots of devastation occurred e.g Hiroshima and Nagasaki,
Germany e.t.c.
- Prof Elisha Stephen Atieno Odhiambo: African colonies are forced to be suppliers
of raw materials, market for goods produced and forced labour:Decolonisation of
Africa.
- Check out Africa The formative years.
1944
- Eluid Mathu The formation of KAU.
Late 1940s Early 1950s
- KAU gradually became more and more violent and radical and evolved into Mau-
Mau.
1952
- Chief Waruhiu was killed.
- On 20th October, The declaration of state of emergency was made. Kenyatta and
the Kapenguria six were arrested for 7 years of hard labour and bla bla blah. A
crackdown on the Mau-Mau then follows.
- Oliver Litteton constitution.
Wed 10/05/06
- Geneva World Trade Organisation.
1954
- Oliver Lytteton was the colonial officer at the time was confronted with the
following problems: Africans wanted more representation in parliament as well as
self-determination.
- He made the Oliver Lytteton constitution and created constituencies and in 1957,
elections were held:
o
Nairobi constituency MP Tom Mboya
o
Central Nyanza constituency MP O. Odinga.
o
South Nyanza constituency MP L.G. Ogida.
o
Coast constituency MP Ronald Ngala.
o
Central constituency MP Benard Martin*
o
Rift Valley constituency MP Daniel Moi
o
Ukambani constituency MP #########
Questions
- Why was the voter turnout so low?
- Why was B. Martin elected and not E. Mathu?
Answers
- In order to vote, one had to be:
o
Above 21.
o
Either a businessman or a civil servant or something like that.
- Bethuel Ogot:
The biggest election surprise was the defeat of Eluid Mathu by Martin. This was
perhaps related to Mathus behavior during the emergency period. It is on record
that Mathu supported the emergency legislation and was opposed to the Mau Mau
and people like General China who he said should be shot on site. He is reported
to have said Go into the forests, Kill them, burn their bodies. It is no surprise
that he was rejected by Africans in the elections.
1957
- African elected members formed an organisation named African Elected Members
Organisation (AEMO).
- They also demanded for more representation in the legislative co. This
necessitated the Lennox Boyd constitution of 1958. The following changes were
made:
o
African representation in the Leg co. was increased from 8 to 14.
o
There was an introduction of a move away from communal roles (where
one would only be allowed to represent his ethnic community in
parliament.) to common roles (i.e. regardless of where you come from,
you can stand for election in a different constituency and be elected.)
o
There were also safeguards introduced into the constitution.
1959
- The colonial secretary was Macleod. The Holland Massacre occurred (11 Mau
Mau detainees were killed) The international community then began to criticize
the barbaric nature of British rule in Africa.
- To get more on this read

o
British Gulag by Prof. Caroline Elkins.
o
Detained by Ngugi wa Nthiongo.
- The world began to ask the British to leave their African colonies.
- A few more constituencies were formed. Also two political parties were formed:
The Kenya Independent Movement (Headed by O. Odinga and T. Mboya) and
Kenya National Party (D. Moi, R. Ngala, Muhro) National parties were at the
time not allowed, that came in 1960.
1960
- In the international scene, Harold McMillan the British Prime Minister visited
South Africa and made a famous statement that he could see and feel the wind of
change.
- On the national scene The KIM had a meeting in Kiambu in which they formed
the party KANU. KNP on the other hand became KADU.
1961
- Kenyatta was released in August of this year.
- Read Jeremy M. Browns autobiography of Kenyatta.

- N.B.: Ngugi and Mazrui had approached Kenyatta to request an opportunity to
autobiograph him but he refused. He instead agreed to be interviewed by Jeremy
Brown. It is believed that he refused because he felt that Mazrui and Ngugi were
very radical and would maybe show him in a bad light.
- Lanchaster meetings:
o
1960 - 1st Lanchaster Meeting
o
1961 - 2nd Lanchaster Meeting
o
1963 - 3rd Lanchaster Meeting
- The aim of the Lanchaster meetings was to identify the issues:
o
KADU and KANU presented their memoranda:
KADUs proposal was for a bicameral parliament (two parliaments
with one parliament checking on the other) they felt that this
system would help constitutional debate or change and lead to
more control over KANUs decisions.
KANUs proposal was for a unicameral parliament with Bill of
rights (Macenzie) because they felt that the bicameral parliament
was too expensive and could lead to delay in legislation.
1963
- KADU wanted majimboism.
- Ministers.
- The head of state was still the queen.
- 1/6/63
- 12/12/63
o
Independence
1964
- -/11/64
o
New amendment in the constitution.
Kenya becomes a republic.
Panoply Everything.
1965
- Pio Gama Pinto assassinated.
- Who killed Pinto?

o
Who stood to gain?
Kenyatta?
o
What was the motive?
Racism? i.e. because he was a muhindi?
He was a part of KANUs left wing (i.e. with Odinga and Kagiya)?
He was a clear political strategist and therefore a threat to
KANUs right wing?
- Assasination is the cleanest opposition strategy.

- Prof Michael Chege
Tom Mboya (1930 1969)

- Nickname: Sungura Mjanja
- Minister for constitutional affairs.
- Architect of the Kenya constitutional reforms during the 1960s.
- There was concern in KANU as many of its MPs were leaving it and going to
KADU. Mboya passed a motion that if you have crossed the floor, you must
have elections in your constituency because you have violated the rules of the
party that created you. This turn-coat rule resulted in many of the MPs that
deserted KANU returning to it. Some MPs challenged the rule saying that it is
retro-active.
- Kenyatta went to Kagiyas homeland and in a famous speech he criticized Kagiya
saying What have you done for yourself?
- Meanwhile, the debate arose: Should Kenya be capitalist or social?
- There was the Bolshevik revolution in Russia.
- In KANU there were two sides: Socialist (Odinga) and Capitalist (Kenyatta).
- Kenya in the meantime was non-aligned.
- Kenyatta wrote a paper: African socialism and its supplication to land in Kenya
o
High production areas are to be focused on.
o
Areas with people who follow retrogressive cultures are to be less focused
on.
1967 8
- Further amendments on the Majimbo structrure.
- Jean Marie Seroney.
- Read Andrew Mortons book on Moi.

o
Moi is described as an old-testament Christian.
o
Controversial issue: Who killed Ouko?
o
Other works by Morton:
Diana Princess of Grace. Her story in her own words (written
after her death).
Monica Lewinskys story.
1968
- Kenyatta had a heart attack.
- Read Tom Mboya The man Kenya wanted to forget. By David Goldworthy.
o
By 1968, Kenyatta was friends with Tom Mboya.
- Kiambu Mafia
Fri 19/5/06
1969
February Arwings Khodek died in car accident near Yaya area.
Elections held.
Back in 1968
Attempts on Mboyas life
1969
July Election is held
Tom Mboya Killed. Who killed Tom Mboya? JJ was killed also.
B.A. Ogot in EA Journal.
Scathing attack on the government and assassinations.
Result, EA Journal banned.
October: Jomo Kenyatta went to Kisumu to open a hospital. MPs were there, Odinga was
there. People shouting Dume, dume exchange between Odinga and Jomo and Jomo
said If it wasnt for my respect for you, you would be detained. A rotten egg was
thrown on Jomo Kenyatta and the police opened fire on the crowd.
Jomo had banned KPU and detained some members, including Jaramogi (until 1971) it
was a violent time.
In November 1964 (KADU members crossed the floor) 1966 (opposition was banned and
Kenya became a de facto one party state) in 1982, it became a De Jure one party state and
this went on until 1991.
1971
Ndegwa reports.
Straddling: Civil servants should be allowed to do business.
1972
Ronald G. Ngala was in a car accident and then attacked by bees and dies.
1974
Elections. Was Josiah Mwangi (J.M.) Kariuki going to team up with Ouko to oppose the
Kiambu Mafia?
1975
Paul Ngei (Simba wa Kangundo) stood for election. It was however found that he had
commited election offence of oathing (making people swear an oath to vote for him)
so he couldnt stand for election. Njonjo asked Kenyatta to do something and Kenyatta
brought a constitutional amendment: The president has the powers to forgive someone
found guilty of an election offence. Prerogative of Mercy 27(a) of the Constitution. Ngei
then contested for the election and won.
OTC bus bombing, Late February. J.M. Kariuki goes missing. The body was found in
Ngong. Stories of who last saw him, his watch was found in the police station. A
committee to investigate contained ministers. Probed issues and said to be investigated
further.
Martin Joseph Shikuku became Joseph Martin Shikuku.

Marie Jeane Serone became Jeane Marie Serone and so on as many politicians whose
initials were M.J. changed it to J.M. for whatever crazy reason.
Who killed JM? Why?

Theories
He was wealthy, prominent, charismatic, close to Jomo Kenyatta, Mau Mau detained.
Was he going to make the flag cross River Chania? Was he siphoning power barons of the
day? What was he up to?
Back to 1969 71 (Chief Justices removed.)

Many people realized that Jomo Kenyatta couldnt be voted out. The only way was
though a bulled i.e. a coup.
Gideon Mutisyas quote Ngei should be the president.
Jomo Kenyatta was unhappy and mobilized people to protest and vote no confidence
against the Chief Justice.
1976
Change the constitution movement led by Kihika Kimani and James Ngenga Karume
(Officials of Gema)
Opposition: Moi, Oloitiptip, Njonjo.
Njonjo: Imagining death of the president is treason
Joseph Karimi and Ochieng: The Kenyatta succession

Low supply of coffee in the world market. Brazil was having problems and only Kenya
could save the day (Uganda had Idi Amin at the time) Therefore there arose Chepkubet.
1977
Elections. With JM dead, Robert S. Mutano took over KANU chairmanship and Justus
Oletipis became the treasurer.
Martin Shikuku: You are busy killing parliament the way you killed KANU
Serone: (When Shikuku was asked to substantiate): Why substantiate the obvious?
1978
August (Mombasa) Jomo Kenyatta was not feeling well, he was rushed to hospital and
died in his sleep.
Moi became the acting president. He appointed Kibaki as the Vice President.
Kenyattas death end of an era and the beginning of another.
Kenyatta was freedom fighter, parliament chief and writer.
Views on Kenyatta
1. Ngugi was detained by Kenyatta. He wrote in a book that Kenyattas allies went
to Kenyatta and told him that Ngugi had written bad things about the government
and the book Petals of Blood was one of the books they mentioned. The book
talked about oathing and criticized that people were taking tea with the president
in Gatundu. Ngahika Nenda (I go where I want and when I want.) and they
added that he was advocating revolution.
Ngugi: I cant celebrate (his death) because he is not the only one I blame for
neo-colonial death.
2. Standard 6 pupil
Sent to buy Sukuma Wiki hears that the president is dead.
Mourning song for Kenyatta.
What does Mzee mean in the context of Jomo Kenyatta?

(1) Old man.
(2) Title of respect.
(3) Jomo Kenyatta: Mimi hapana mzee, uliza Mama Ngina. (Inuendo)
Moi succeeded Kenyatta.

- People said that Moi is a Passing cloud
- Politically shrewd. Three people were in his inner circle.
o
Charles Njonjo.
o
G.G. Kariuki.
o
Justus Oloitipis.
- 22/8/78 14/10/78 i.e. 90 days passed and an election was then supposed to be
held. But no one stood up to oppose Moi (Sycophants and cheerleaders were used
to disrupt any opposition to Moi. MP. Shariff Nassir: Wapende wasipende)
- Moi was sworn in on the 14th.
- Mwai Kibaki becomes the minister of finance.
- Concept of Nyayo Continuity.
Max Weber Traditional Legitimisation

Charisma
Tradition
Legal Retreat
- Battlefronts Josephat Karanja
1980
Moi is paranoid (Like Kenyatta in 1971) and afraid that people are trying to overthrow
him.
C. Njonjo eyed the presidency but couldnt because he was the Attorney General (One
must be an elected M.P. to stand for presidency)
1981
Treason trial
- Mwangi Stephen Murithi
- Mpatanishi
- Mwakenya
- Benard Chunga Deputy Public Prosecutor
1988
Election
Mlolongo
1. Taib: Mlolongo is open.
2. Saitoti: It is transparent and the best
3. Sam Onyeri: It is the most stress free.
People were disgusted by Mlolongo.
- Berlin Wall collapsed.
1990
Ouko assassinated.
Who killed Ouko? Why?
Res ipsa loquitor
Ouko death and Mlolongo problems and the Berlin Wall collapse are problems for
KANU.
1991
Moi calls for KANU meeting at Kasarani. Multipartyism accepted.
1991 1992: Pressure group Ford has a meeting in Kamkunji. Although we have
multipartyism, we are still a 1 party state.
December 1991
Kibaki was in Mombasa with Njenga Karume and others and forms DP.
1992
Movement: The president can only serve for two 5-year terms.
The opposition is split and KANU wins, Moi retains the presidency on prurality and vote
by majority and is quickly sworn in. Matiba contests the presidency results.
Kibaki vs. Matiba.
Sec 9(2)
Tue 30/5/06
1992
Sec 9(2)
No person should serve the office of presidency for more than two terms.
Was meant to prevent African presidents from overstaying in power.
1993
Cooperation between Moi and Odinga.
IPPG Inter Parliamentary Parties Group Led by Jojilo Falana.
Series of strikes
Saba Saba Nane Nane Tisa Tisa bla bla bla
1997
Moi: The election date is my secret weapon
27 Dec 29 Dec
CKR Act: Cap 3A
Moi willing to review the constitution.
2001
Professor of Public Law: Yash Pal Ghai.
Heads Constitutional Review Committee: CKRC
He is warned Moi just wants to use your credibility.
Ufungamano: Constitutional Review should be people driven: Wanjiku, Naliaka e.t.c.
2002
Moi says he wont stand for election again. However, other politicians (Shariff Nassir
Wapende wasipende and others say that Moi will continue.
Successor gameplan: Uhuru Kenyatta, Kalonzo Musyoka, Katana Ngala, Musalia
Mudavadi.
Saitoti: There comes a time
Is Moi for real? i.e. is he really resigning?
Spotlight for KANU.
Moi announces that Uhuru is the presidential candidate: Kalonzo, Raila, and others were
bitter because this matter wasnt discussed with them.
October 2002
CR: Confrence for review in Bomas.
The draft is good- Kibwana,
It needs a little improvement but it is good
On the Sunday of _____, Moi said that the meetings are to be ceased and promptly sends
the GSU to block Bomas.
Meanwhile in politics.
Meeting to name KANUs presidential candidate. The Narc coalition also hold a parralel
meeting in Uhuru Park and it is where Raila says Kibaki tosha.
In KANU: Kenyatta is the presidential candidate. Musalia Mudavadi is made Vice
President. Saitoti, Odinga and others leave KANU.
Narc:
MOU: Principles: Presidential candidate is Kibaki, VP is Wamalwa. Constitutional
Review to change major issues.
2002 2006
Bomas, Wako, GNU, Cabinet.
Elections in 2002
KANU got 68 seats (Lost 42)
Narc got 138 seats.
Bomas was suspended for now.
Bomas 1 has problems: Funding e.t.c.
Bomas 2 has issues with bribes.
Bomas 3 issues continue, assassination (Crispin Mbai)
B.O. Nwabuseze in Presidentialism in Commonwealth Africa.

Power of the people to constitute themselves into a committee.
Power of the government to ratify the constitution.
Power of the people to put the government to subject themselves to it. Is the question of
the people.
Ghai has criticized this by saying that it isnt based on the prevailing facts but on theory.
Justification of politics (Inverse: Politicisation of legal process.)

Majimbosim: Based on the principle of subsidiary rather than delegation (Power is
centralized geographically (Nairobi) and politically (Presidency))
Yellow movement
Refferendum
Judge It doesnt matter how a document (for referendum) is produced.
2005 Referendum
Gikuyu
Embu
Meru
Association
Kalenjin
Masai
Turkana
Samburu
Wednesday 31/5/06
1990 GMMA
Coalition Pre-Election goal

- Post election goal
- Issues coalition
Format
Constitution?
MOU?
Unwritten?
Justiciable Look it up. It should mean a matter that can be taken to court or that has the
merits that allow it to be presented in court. A politically and morally justifiable matter
e.t.c.
Find out what is the difference between Justiciable and Justifiable.
Constitutional values and constitutional safeguards.

Constitutional values: Standards that ensure democratic governance. Ethical, political,
moral, cultural e.t.c.
Found as preambles to constitutional instruments.
Normative Rules/ value judgements.
Safeguards: Either structural or institutional.
Important embodiment of constitutional values in Kenya is section 70 of the constitution:
Preambular (antonym Operational)
Is it structural, declaratory.
All the presidents men The movie about Richard Nixon and the Watergate scandal.
Nixon
1974 Nixon, in an attempt to get re-elected and aware of the democrats challenge,
invades Watergate building to find out what they were planning. The guys were arrested
and Nixon denied. The tapes were produced showing evidence that Nixon was involved.
The case went to the Supreme court.
Nixon: You cannot force me to reveal.
S.C.: Yes we can.
The tapes are revealed, Nixon is implicated and forced to resign. So did many people
connected to Nixon.
P.S. It was only until last year that the identity of Deep Throat (the guy who revealed
the evidence) was revealed.
Also watch Primary Colors.
Separation or division of powers and functions.

- What are the powers?
- Why separate?
- Can they separate?
- Is it desirable?
- Baron Montesqui:
o
If the three powers were combined in one, there will be an end to
everything.
o
See Idi Amins Uganda.
Executive
Power
Legislature Judicature
Study the following:

Party constitutions
Party nomination rules.
Election act, society act
NGOs act
Control NGOs
Coordinate NGOs
Facilitate registration of NGOs
Agencies
(Free constitutional organs)
Quasi-Judicial organizations.
Tuesday 6/6/06
Tribunals
Established since independence.
By President to resolve issues (Burning policy issues.)
Through Sec(22), they are established by the president or by sub-ordinate people.
Constitutional inquiry act.
It isnt clear what procedure these bodies follow:
- Are they civil or criminal?
- What rules of evidence are followed? Criminal/ burden of proof (reasonable

doubt) or civil?
Maathai vs. Maathai (appeal)
Adultery case.
Ouko Case
Fifth amendment.
Due process bill (right to keep silent.)
Ell Mann
Constitution and rights should be interpreted literally. (The constitution says that you
cannot be forced to evidence against yourself at your trial but questionnaires you signed
were not at your trial.
Miranda case 13th June ______

In the states, there was a man named Miranda, who was arrested and beaten unconscious.
He wasnt told that What you say will be used as evidence. The things he said were
used in evidence.
The supreme court said that the police should say You have a right to remain silent,
anything you say will be used against you in a court of law, you have a right to an
attorney, if you cant afford one, one will be provided, do you understand? Then arrest
the guy when he confirms that he has understood. They have even gone further today to
say that maybe the police shouldnt say evidence against you because that may be
a threat.
Commisions of Inquiry
Excersise the executives authority and answer to the president.
Atoumi
The high court is superior to them.
Usefulness of the commissions of inquiry in Kenyas constitutional process?

- They are fact finding inquiries that find facts that are related to burning policy
issues.
- They are established in Kenya to posptpone political crisis and bla bla bla . Ouko
Inquiry, J.M. Inquiry.
- They can also be a scape-goat tactic: To divert attention to someone else or
another crisis instead of the government or the president.
- To deal with the issue.
Dissent
- It is an example of the executives usurpation of the Judiciarys duties. The
commissions of inquiry are composed of the people selected by the president.
- Expenditure (The money comes from tax-payers) there are so many inquiries in
Kenya and their expenditure was stupendous (Goldenberg inquiry being the most
expensive so far.)
How do Multinational Financial Institutions (MFIs) and International Economic

Institutions affect our constitution?
- E.A.C. ( E.A.F.), Comesa, United Nations Economic Provision for Africa
(UNEPA) and others.
- Multilateral bodies.
- Do they undermine our sovereignty/ limit our sovereignty?
o
Bretttonwoods institutions and the Washington Consensus.
- They tell us what to do and what not to do. How much expenditure we are to have
in bla bla bla and so on.
Separation of powers
Quasi-judicial bodies
When powers are fused, they are liable to be abused.
Constitutional difference between US and UK.
- There is a clear-cut division between the Judiciary and Executive (Unlike UK)
- Division of powers means division of labor -Woods (Famous economist)
- Functional separation of powers (not absolute) governments cannot work when
the powers are completely separated. The government needs to work as an organic
whole.
A.G.
- The three forms that the Attorney General wears:
o
Chief Legal adviser of the government (Executive)
o
Ex-officio Member of Parliament (Legislature)
o
Public prosecutor: Powers to initiate, suspend and so on. (Judicature)
- Interdependence of the powers to help safeguard rights. Greater needs to

emphasize coordination (Coordinating offices: Presidents office, Attorney
Generals office, Secretary of Cabinets office)
- Complete separation would lead to inefficiency, gridlock, fighting.
- Powers are not equal or as important as one another.
o
The Executive has coersive, urgent,(Sometimes residual) and deliberative
powers.
o
Alexander Hamilton: The judicature is the least dangerous branch: It
controls neither the purse (Legislature) or the Sword (Executive)
o
Should we consider electing our judges?
Coursework (Continuous Assessment Test)
Answer either question 1 or 2.
Question 1
- You have been appointed as a special advisor to President E. S. Mwai Kibaki, MP,
to advise him and all the relevant stakeholders on the most effective way of
completing comprehensive Constitutional Review in Kenya. Your terms of
reference (TORs) or mandate include the following:
(a) You must review the contribution of the Bomas and the Wako
or referendum process to the quest for a new constitutional dispensation in
Kenya. With special reference to the devolution issue and the issue of the
division of Executive power (President vs. Prime Minister).
(b) You may review or refer to the contribution of the Inter
Parties Parliamentary Group (IPPG) in the review process.
(c) You must assess the role played by President Kibaki and
Hon. Raila Odinga, MP, in the quest for a new Constitution.
(d) You must advise on the way forward so that Kenya gets a
new constitution as soon as possible as we premised, and in any event before
the next general elections which must be held before 29/12/2007.
Question 2
- You are a top drawer or blue chip strategist in Constitutional Process generally
and in party or coalition politics in particular. You have been commissioned by the
Center for Multi Party Democracy (CMPD) to advise on how Kenyas major
political players may design and pursue a constitutionally sound political
strategy in preparation for the forthcoming General Elections. Your terms of
reference include the following.
(a) How the Kenya African National Union (KANU) should deal with the
question of the Orange Democratic Movement (ODM) and how KANU
should negotiate a viable winning coalition arrangement.
(b) How the liberal Democratic Party (LDP) should deal with internal party
elections and nomination rules (for local authority, parliamentary and
presidential candidates.
(c) How Ford Kenya (Ford Simba) may negotiate a winning coalition
arrangement.
(d) How NARC Kenya should deal with the Democratic Party (DP) and The
National Rainbow Coalition NARC questions. You may focus on any two of
the TORs, althought you are free to refer to other TORs.
Fri 9/6/06
Legislation
Sec 30. Legislative power of Parliament: President and National Assembly.
Composition of Legislature.
- Elected Members.
- Nominated Members (Inter Parties Parliamentary Group Package.)
- Attorney General Ex Officio Member (Without the right to vote)
- President (Firstly an MP)
A bill is proposed law.

- If introduced by the government, it could be private or public, depending on the

content.
- It is better to call the critical role of parliament the supervisory role.
Representative vs. Participatory

Participatory: Referendum people of Kenya decide law.
Representative: We elect people (Parliament)
Bills Law
The In-Committee stage.
-
-
-
Replenary committee
Domesticate International Law and policies.

Reenactment/ Incorporation.
- Monist group.
Judicial precedent and law making.

Judiciary makes law through Judicial precedent
Bill commencement.
Tue 13/6/06
Wako 22nd August 2005

CKRC 18th November 2002
Public Service
- Consists of the Civil service.
- People working in parastatals, state corporations, military, police, GSU e.t.c.
What is the Executive?

- Execute laws.
- At the top is the president (Used to be dual executive at the time of independence)
- Followed by the Vice President, followed by cabinet, then the assistant ministers,
then permanent secretaries, followed by directors and technocrats and then civil
servants (Bureaucrats, Boffins, Mandarins)
- Executive powers:
o
Montesqui: Princes or magistrates make peace or war, send or receive
ambassadors.
- Nature of Executive powers:
o
Urgent, Efficient, direct, sometimes deliberative (When the decision has to
be made urgently e.g. during an emergency or disaster)
o
Provided for by:
Constitution.
Regulations and other subsidiary legislations.
Relevant acts of parliament.
Political party instruments.
- People like J.B. Ojwang and Locke have said that it is very hard to describe
executive powers and they use the residual theory.
- Nicollo Machiavelli (In The prince):
o
The end justifies the means.
o
Keep your friends close, your enemies closer.
o
Be as brutal and as ruthless with your enemy as possible.
o
In the long term, you must build a consensus. Mercenaries are only needed
initially.
- Whitehall tradition: Independent professional civil service (Public service) and
dual executive.
- Westminster model collapsed around 1964 when Kenyatta, Mboya, Gichuru
decided to follow Nyerere (Tanzania) and Kwame Nkrumah (Ghana).
- Mazrui:
Ghana independence (1957) the Osagyefo (Kwameh Nkrumah) strongly argued
that Ghana needs a single leader. So did Mwalimu Julius Nyerere at Tanzanias
independence.
- This wasnt true in African tradition. There is evidence in African societies that
the executive power was shared and not held by one person:
o
Mumia of Wanga.
o
Kyama of Kikuyu had a council of elders.
o
Meru.
- British constitution of popular participation.
- Jaramogi Oginga Odinga in Not Yet Uhuru
o
The constitution is too complex.
- When does one become president?
- Matiba vs. Moi
- Vice president:
- Vice Presidents in Kenya:
1. Jaramogi Oginga Odinga
2. Joseph Murungi.
3. Moi
4. Mwai Kibaki
5. Josephat Njuguna Karanja
6. George Saitoti
7. Mudavadi
8. Wamalwa Kijana
9. Moody Awori
- Section 16 (Sub 4)
Reasons why they left:

1. Odinga: Resigned: Kenyatta wanted to dilute the vice presidency through the
Limuru conference of appointing 8 VPs to KANU (But still have one state VP)
2. Murungi: Resigned: The state theory was that because of his health, he resigned.
The real theory was that he had gone to the states from what he saw there, he
became unhappy with the Kenya situation. Kenyattas system seemed bad to him
and he felt that he wouldnt survive as an independent minded Vice President. He
felt that Kenyatta had captured the presidency.
3. Moi: We all know why he left the vice presidency (for better things) but why was
he appointed? He had recently deserted from KADU to KANU and wasnt even
one of the prominent people in KADU to begin with. The reasons why Kenyatta
chose him were because:
a. Kenyatta had interests in Rift Valley, where Moi was from.
b. Moi seemed docile and laid back and not capable of bringing Kenyatta
any worries.
c. Seronei vs. _______
4. Kibaki: Why was he appointed? There were other people at the time (Mbiyu
Koinange, J. Gichuru, bla bla bla) who considered themselves presidential
material and could have been chosen for vice presidency. The reasons why Moi
chose Kibaki were:
a. Moi looked for Kikuyu support so that he would have a good term with no
problems.
b. He didnt want Kiambu mafia (Koinange, Gichuru) because they had
opposed his presidency before.
c. He didnt want someone who outshone him. Kibaki was and ordinary
person with no special degrees or anything.
d. Kibaki (Like Moi to Kenyatta) looked laid back and unambitious.
Kibaki left because of ideological differences with Moi.
5. Josephat Karanja: Why was he appointed? He was just an assistant minister.
a. He is a Kikuyu and not Kiambu mafia.
b. Kibaki had left unceremoniously and Moi needed legitimacy.
c. Moi was feeling fairly stable and just needed a Kikuyu with no major
constituency.
Karanja left through a vote of no confidence (David Mwenje) and Uganda
connection. The circumstances were however suspicious and for some reason, it
seems Moi asked him to step down.
6. Saitoti: Why was he appointed?
a. Theory: Moi was getting more confident as to his stability. His first V.P.
(Kibaki) was not outstanding in any way, his second (Karanja) was a
doctor of History, why not a professor next?
Another factor is that after the 1997 elections (Saitoti was defeated) Moi
worked without a Vice President for 14 months. This was a controversial
matter because it was unconstitutional. It however gives us insight on Mois
feelings on the post of vice presidency:
b. Moi firstly was using the seat as a bargaining power to woo KANU people
who were against him.
c. Moi was in his last term of presidency and didnt want to allude to who his
successor was going to be.
Saitoti was later sacked because he didnt support the Uhuru project.
7. Mudavadi (Son of Moses Mudavadi, Minister of Local Government) Why was he
appointed and not Uhuru (Sorry, Uhuru at the time was a nominated and not
elected member of Parliament) But Mudavadi was chosen because:
a. The Luhya vote, at the time was what seemed to be the decider of the
election: Moi believed at the time that Central province and North Eastern
Province supported Uhuru and he felt that all he needed was the Western
Province vote.
b. NARC had dangled Wamalwa as their prospective VP and Moi thought
that the Western Province would buy an existing VP rather than a
prospective one.
c. There was a rumor of D.D.
KANU then lost and Mudavadi was out, (He created a record of the shortest time
served in the Kenya Government as V.P.)
8. Wamalwa: We all know why he left (R.I.P.) but why was he chosen? Because of
MOU.
9. Moody Awori: Why was he chosen?
a. To placate LDP.
b. The luhya question.
c. CMB Prezzo (Money talks.)
Analysis of recent events

- Atur bros visit.
- The president appeared on TV recently to talk about his family affairs again and
not about the serious security issue. Why?
- Does the president have the power to dismiss or suspend Civil servants e.g. police
and bla bla bla (Mwangi Steven Murithi.)
- Why do these foreigners have express access to the Kenya Airport?
IPPG
After 1992 elections, the people realized that although the constitution was amended to
allow for Multipartyism, Kenya was a single party state. This was, to the people,
anachronistic. Politicians started the warcry: to level the playing field and allow
constitutionalism and rule of law, Citizens Coalition for Constitutional Change (4 Cs)
Kenya tuitakaye The Kenya we want.
Contained draft of wanted reforms in the constitution:
National Convention Executive counvil and National Conventional assembly.
Talks of a caretaker government. 1997: Then now came talks of strikes and such. July 7th
(Saba Saba) also Nane Nane and all that.
After the movement. The belief was that if the points of IPPG were implemented, it
would solve the constitutional process of Kenya, others see this as selfish and easy way
out.
210 + 12 + 2
1997: Rationalise and sanitise the chief.
Elections
Kibaki vs. Moi
2003
Ford K + DP + NPK = NAK (MOU)
NAK + LDP = NARC (2 MOUs)
Rainbow Alliance
MOUs
1. Presidential candidate: Kibaki
2. Vice presidential candidate: Wamalwa
3. Prime Minister: Raila
4. Consensus for making decisions
5. Constitutional Review
Alliances/ Coalitions
1. Individuals
2. Ethnic Groups
3. Parties
4. Combinations of the above
Wed 14/6/06
President
- Head of state, commander in chief
- Cabinet leader
- Head leader of government.
- Leader of ruling party.
- Member of parliament.
- Minister (In a sense of the word)
- Unquestionable and his actions cannot be criminalized or brought before a civil or
criminal court (what about divorce?)
- Augusto Pinochet
- Salvardor Allende
- Ultimate Judge.
Commander in Chief
- Declares war or peace.
- Commands the forces in times of war and peace.
- President & Commander in chief: Is it a ceremonial role or a functional one?
Leader of Government
Leader of Ruling party
- The regulation of Narc was unconstitutional and shouldnt have happened.

Parties should consist of individuals and not parties. There shouldnt be parties
made of parties.
- Kleptocratic dictatorship: Kleptocracy (Thievery).
- King: Dispenser of justice.

- Presidents and domestic issues:
o
Divorce.
o
Affairs.
Tue 20/6/06
- The president and the legislature.

- The president and the judicature.
- The president and the Public Service Commision.
- The Public Service Commision is separated from Political organs and Legislature
organs.
- Presidential powers:
o
To dissolve parliament.
o
To prologue parliament.
- Was it constitutional that immediately after the referendum, we didnt have a

cabinet or a parliament?
- Sihanya:
o
Section 17(3): The government is responsible to the people through
parliament and the cabinet.
o
There are things that only the minister can do.
WTO person (Lamy) was in the country during the prologuation.
Only the trade min)ster could meet him. Kenya therefore missed a
great opportunity to influence world issues.
Ministries went haywire. Nothing was being done.
- The president is a member of parliament. Members of parliament are to be

dismissed if they dont attend parliament for more than 8 sessions. However, the
president hasnt attended many sessions.
- ECK members are appointed by the president.
Thu 22/6/06
- Hamilton: The executive is the sword, the civil service is the #####
- Kenyas civil service has followed the Whitehall tradition (UK tradition) that they
are supposed to be independent.
- The terms used are:
o
Loyalty.
o
Sabotage.
o
Longevity (Stay in power).
o
Institutional memory: This is because when a new government comes in, it
is important that there is a consistency. This is why when a new
government comes in, there is no radical clean up in the civil service.
o
Autonomy: This is when the civil service is supposed to be independent as
from any political parties e.g. look at the AG: ex officio MP, legal adviser
to the government and public prosecutor.
o
Integrity: Should be considered in the light of the Ndegwa report of 1971.
The Ndegwa committee reported and had been appointed by Kenyatta on
how to make the civil service better and to revise the pay. One of the
recommendations was that the civil servants should be in business because
it was a concept called straddling by Michael Cowan: Others have argued
that this report added to the corruption e.g. having to compete for contracts
with civil servants.
- The civil service also has the duty of strengthening parliamentary democracy e.g.
when ministers are supposed to be reporting on their ministries thus ensuring a
check on the civil service by the e.g. the collective responsibility.
Hierarchy of the civil service

- Section 107(4) determines which docket an office will fall under e.g. under the
civil service or the public service.
- The head of the civil service is also the permanent secretary in the office of the
president and the assistant to the government.
- Permanent secretary
Attorney General
- Since Independence:
o
Charles Njonjo (to 1980)
o
James Karungu.
o
Joseph Muli.
o
S. Amos Wako.
Technical agencies of the government

- They may have limitations that need technical functions that will overcome those
limitations.
- e.g. ministry of information and communication. It helps develop the
governmental policy in information and communication and implement it. So,
within this there is the PPU (Presidential Press Unit), VPPU and Kenya News
Agency.
- But their justification is in question in that in some ministries, you have technical
agencies and you have SAGA (according to Sihanya) in that they are units that are
just meant to cover issues e.g. Kenya Institute of Education that helps the
government develop the curriculum, Kenya Education Staff Institute e.g. helping
teach those in teaching.
- There are also statutory bodies in particular if company it would have SAGAs
since statutory bodies are established by statute. Unlike SAGAs which are not e.g.
KNEC (Kenya National Examinations Council).
- But they are supposed to help in statutory policy making in government and
issues of service delivery and business.
- Service delivery: The government realized that some services were too crucial to
be provided by the private sector and also since those services do not make much
money.
Policy agencies
- To ensure peace and security and to ensure public security under section 4 of the
security act.
Administrative police
- They used to be called tribal police (T.P.), African Police (A.P.) Nowadays can be
found in offices of the
Prisons
- NSIS Has replaced the special branch and have its own act. Dont have to be
answerable to the police commissioner.
- Max Webber said that there are three main sources of public power:
o
Charisma.
o
Tradition.
o
Legal (Law. Constitution, Statutes)
Legal
- A major source of power is the law and the law will be a major source and if it is
not to be law, it should be realized in a reasoned and rational manner to clear any
complexity of the law.
Tradition
- If you are the son of a king or a leader, you will be the successor not by election
or skill but by birth (Hereditary system).
- But even where there is no hereditary system, tradition can be used to legalize the
leadership e.g. by associating themselves with past events e.g. Kenyatta saying
that he was the leader of independent movement, or when Moi comes to power,
he exhibits pictures with Kenyatta so they can show legitimacy.
- Certain presidential powers cannot be found in written law but have a

constitutional effect.
- As a constitutional lawyer, you dont justify extra-judicial powers.
Charisma
- In Weber, charisma is clear to do with the physical characteristics of the

individual. Charisma may have been more easily identified with first generation
leaders.
Parliament (Section 30)

- Rationale behind it is that the government should not spend anything unless
parliament approves and parliament is representative.
- Delegate Is given a specific mandate, which focuses on certain issues.
- Representative is given a wider mandate and dont have to specialize.
Fri 23/6/06
Tuju 2002 LDP (Narc)

- Resigning = PPP (Peoples Progressive Party)
o
Narc Kenya.
- Resignation is a positive act, not assumed.

- Maybe Section 40 is not a relevant one because in Kenya parties have no constant
and different ideological differences but what is true is that it is convoluted and
conflicted and was meant for KADU defectors: Realpolitik.
- Ruto faction + LDP
o
+ ODM
- Are they doable constitutionwise?
Trademark rules
McDonalds vs. Joburger & Dax (South African Case)

During apartheid, McDonalds couldnt operate because of the law. After
apartheid, they could but Joburger & Dax had registered under the name
McDonalds and so McDonalds couldnt register themselves. The law
said that the one who registered is the one who enjoys the trademark.
However, this can be overruled if the other party is notorious, well-
known or famous McDonalds did a survey and presented it to the court
as evidence that they were indeed famous and so should be the ones who
enjoy the trademark. Joburger lost.
- This can be applied to the Kenya vs. ODM situation.
Answer to Assignment Question 2

- Can you form a one-man coalition with one party?
- It is possible but the form they take is different.
- The first question is: are they doable constitutionally?
o
They can decide that they will form a new party or one of them defects or
MOU Sec 16 (2) 17 (5) will legitimist (political viability)
- So it is better to have one vehicle or a firm MOU.
- But there is a problem in that the coalition can be a problem in society act in that
the legal problem will arise.
- The main areas to watch in Kenya politics are Rift Valley, Western province,
Coast and also Eastern and mostly Western & Rift Valley since these votes will be
important.
- ODM shouldnt have been registered because:

o
Under the property law, if you have a well known name, you cannot
register that name.
- Under the politics the strategy is that it doesnt matter if the government
registered a name of the party e.g. ODM if elections are still has to use a party
and if it is known, then it wont really matter (they are just political names.
- NHSSF bill Parliament passing a bill while at the same time telling the president
not to assent to it.
- December 1977 December 1978 Ngugi Nthiongo.
Sat 24/6/06
Public Account Committee (PAC) extra financial control over the government.
Public Investing Committee (PIC) checks on government investments.
Parliamentary Select Committee (PSC).
- On the constitution (chaired by Raila, Ruto, Muite, Nyando son)
- J.M.
- Ouko.
- Ndilinge.
Kipnweno.
- Agriculture
- Land
- Resources
- Energy, communication and public works.
- Education, research and technology.
- Health, housing, labor and social welfare.
- Administration, National security, legal authorities.
- Finance, planning and trade.
- Administration of justice and legal affairs.
- Defense and foreign relations.
Wed 28/6/06
Intra vires Within ones powers

Ultra vires outside ones powers
Mwangi Steven Murithi

Argument of Ultra vires; did the president have powers under the
constitution to suspend officers?
Marbury vs. Madison (US)

Same argument: Did the president have power to fire a judge?
Questions:
- Is the constitution a law?
o
It shouldnt be one just because it says so, there must be a way of
recognizing whether it is actually a law or not i.e. it should be considered
a law because:
it says so.
it is regarded as one.
- Why is it supreme?
o
Haobas Corpus Justi Subj Sciendum
Sometimes, Judges may influence each other

- Clarence Thomas: American Supreme Judge nicknamed the silent judge.
- Antonin Scalia: Also Supreme Judge.
- Justice Kwach in Kenya.
Norwojee
The judge hadnt delivered a judgement on a case for a long time. The
lawyer asked why and the court held him in contempt: You are not to
question a judge.
Sat 1/7/06
Roe vs. Wode (US)

Could a woman procure an abortion? The court voted 5:4 yes.
- Ideology and ethnicity (Mostly ethnicity) play major roles in the picking of judges
in Kenya.
- Judges in revolutionary situation (a coup detat)
African Charter on Human and Peoples Rights of 1981.

Why P?
1966 UDHR
1950 Torture, exploitation of labor in Kenya.
The first 10 amendments to the US constitution are the bill of rights.
Thurgood Marshall.
Human Rights Discourse in Kenya.

- Chapter 5 of constitution (used to be chapter 2 in the independence constitution)
Section 79 of the constitution

Section 81 of the constitution
- Inalienable/ inviolable
- Clawback provision
o
Human interest clauses.
1980s and 90s.

1988 J.B. Ojwang.
State vs. Individual.
Liberty
Kioko vs. Republic
Freedom of conscience.
Elijah Masinde
IPK issues (Islam Party of Kenya
Angara vs. Registrar
80s and 90s.
Philadelphia
In Kenya, we dont have institutional freedom e.g. freedom of the press (we do have
individual freedom).
Cases in Kenya
David Oloo
Accused of being in possession of seditious material. Plea bargaining. 6
years.
Winnie Njuguna
Allegedly found with a document about Moi.
Ngugi wa Nthiongo
Claims in detained
Dr Maina Kigani
Biwott cases
- Protection of due process of law.
Githunguri vs. A.G.

Convict author
- J.B. Ojwang & Yash Pal Ghai treatment of.
Deportation.
Odinga
Section 75 (pg 51 54 of constitution of Kenya)

- Public involvement.
Clear law
Section 89 of the Kenya constitution is not rational.
Ombudsperson established in Scandinavian countries. Problems occur in society e.g.

delivery of executive functions.
1850
- Dred Scott was told that he was a black and a dog and not equal to a white. This
case was one of the many that precluded the civil war.
1954
- Brown vs. Board of Education.
Exam
- No compulsory questions.
- 6 questions (answer any three)
- Open book.

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- Articles by Prof Elisha Stephen Atieno Odhiambo.

Kenyas Constitutional Law

The White mans burden

- Rudyard Kipling [1898]

- Geneva World Trade Organisation.

- To get more on this read

- Read Jeremy M. Browns autobiography of Kenyatta.

- Who killed Pinto?

- Assasination is the cleanest opposition strategy.

Tom Mboya (1930 1969)

- Read Andrew Mortons book on Moi.

Straddling: Civil servants should be allowed to do business.

Martin Joseph Shikuku became Joseph Martin Shikuku.

Who killed JM? Why?

Back to 1969 71 (Chief Justices removed.)

Joseph Karimi and Ochieng: The Kenyatta succession

What does Mzee mean in the context of Jomo Kenyatta?

Moi succeeded Kenyatta.

Max Weber Traditional Legitimisation

B.O. Nwabuseze in Presidentialism in Commonwealth Africa.

Justification of politics (Inverse: Politicisation of legal process.)

Coalition Pre-Election goal

Find out what is the difference between Justiciable and Justifiable.

Constitutional values and constitutional safeguards.

Separation or division of powers and functions.

Study the following:

Election act, society act

- What rules of evidence are followed? Criminal/ burden of proof (reasonable

Miranda case 13th June ______

Usefulness of the commissions of inquiry in Kenyas constitutional process?

How do Multinational Financial Institutions (MFIs) and International Economic

- Interdependence of the powers to help safeguard rights. Greater needs to

Coursework (Continuous Assessment Test)

Answer either question 1 or 2.

A bill is proposed law.

- If introduced by the government, it could be private or public, depending on the

Representative vs. Participatory

Domesticate International Law and policies.

Judicial precedent and law making.

Wako 22nd August 2005

What is the Executive?

Reasons why they left:

Analysis of recent events

1997: Rationalise and sanitise the chief.

Leader of Ruling party

- The regulation of Narc was unconstitutional and shouldnt have happened.

- King: Dispenser of justice.

- The president and the legislature.

- Was it constitutional that immediately after the referendum, we didnt have a

- The president is a member of parliament. Members of parliament are to be

Hierarchy of the civil service

Technical agencies of the government

- Certain presidential powers cannot be found in written law but have a

- In Weber, charisma is clear to do with the physical characteristics of the

Parliament (Section 30)

Tuju 2002 LDP (Narc)

- Resignation is a positive act, not assumed.

McDonalds vs. Joburger & Dax (South African Case)

- This can be applied to the Kenya vs. ODM situation.

Answer to Assignment Question 2

- ODM shouldnt have been registered because:

Intra vires Within ones powers

Mwangi Steven Murithi