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Kenya - Government

The first constitution of Kenya was negotiated upon independence in 1963 and was widely regarded as outdated and oppressive. A “people-driven” process to rewrite the constitution was initiated with the establishment of the Constitution of Kenya Review Commission (CKRC) in 1997.

Between independence in the 1960s and the 2007 election, Kenya's constitution was amended around 30 times, each time bolstering the power of the presidency at the expense of the judicial and legislative branches of government, and, ultimately, at the expense of the Kenyan people.

Kenya's national elections in 2002 decided who would NOT rule Kenya, with Daniel arap Moi stepping down after 24 years of power, but it did not resolve decisively who would really hold sway post-Moi. The Kikuyu tribesmen of Mwai Kibaki's NAK/DP faction came to power by creating a National Rainbow Coalition ("NARC") with Raila Odinga's LDP party, which is dominated by the Luo people. Kibaki became President, but Odinga, who had been promised the to-be-created Prime Ministry under the to-be-promulgated new constitution, was double-crossed when Kibaki's government failed to promulgate the new constitution.

When Mwai Kibaki, a former regime loyalist and vice president who had spent a decade in opposition after falling out with his boss, the dictatorial Daniel arap Moi, was elected president, Kenyans genuinely believed that he would live up to his promise to deliver a new constitution within 100 days. Instead, once in power, and despite heading an administration that contained many of the leading lights of the push to enact a new constitution, he seemed to come to the conclusion that he liked things as they were. The first years of rule by the the National Rainbow Coalition (NARC) proved difficult due to the fracturing of the NARC coalition, especially over completion of the constitutional review process started under Moi. A lengthy public consultation process produced a new draft constitution (known as the Bomas draft) in March 2004. But its provisions, notably those reducing the executive powers of the Presidency, proved unacceptable to the government. Kibaki rejected this constitutional draft which emerged from a constitutional conference in March 2004 after months of negotiation and struggle. The "Bomas" draft had held to Kibaki's 2002 bargain with Raila Odinga and his allies: Kibaki was to get the presidency, the rest of the country was to get a "non-imperial" president in the future constitution.

After a protracted legal wrangle the government secured Parliamentary approval for certain key amendments to be made and a new Constitution Bill was published. The new proposal provided for a prime minister, but it left the supreme authority of the president in appointing and dismissing cabinet ministers intact, thus securing the support of the present government. The proposed new constitution would arguably be more difficult to amend than the current one. The 1 million signatures required to merely propose an amendment is perceived by some of the smaller tribes as a way for the dominant Kikuyu group to perpetuate their hold on power, as the proposed new constitution is perceived to benefit Kikuyus over other groups.

However, the new draft was rejected by voters when it was put to a referendum in November 2005. The Electoral Commission of Kenya (ECK) confirmed the results, announcing that 2,523,918 "yes" votes versus 3,548,477 "no" votes had been counted (this is 58 percent versus 42 percent of the counted "yes" and "no" votes).

The vote was a rebuke of the "Big Man" presidential concept, and of a perceived attempt by the Kikuyu ethnic group to achieve hegemonic power. It was impossible to see the referendum result as anything but a stinging rebuke to President Kibaki and the ruling group around him. Despite last- minute backpedaling, the President clearly committed his own prestige to the "yes" side. This prompted Kibaki to sack his entire government and start with a new team which excluded all those Ministers who voted against the draft. Those who voted against the draft formed a new political party, ODM-Kenya.

By 2009 Kenya's two main political parties were locked in tense negotiations over the draft constitution. Agreement must found during the course of talks if the constitutional review and referendum process was to be peaceful and successful. The parties were far apart on how to vest power in a president or a prime minister, as well as the method of election. Differences also remained over devolved government, the judiciary, a recall provision for members of parliament, and Kadhi's courts. Kadhi's courts address only civil issues under sharia law where both parties are Muslims, but are opposed by some major Christian organizations.

President Kibaki's Party of National Unity (PNU) believed that it was disadvantaged by the current constituency-based system and is adamant that the president be directly elected. The largest constituency in Kenya is roughly 18 times the size of the smallest, and most large constituencies are in PNU strongholds. This system puts them at a disadvantage as they have more voters casting ballots for a small number of MP's, thus losing ground in parliament. It is PNU's belief that they would receive a majority of votes in a one person-one vote system, and want to retain a powerful presidency that could operate with a mandate from the people.

Thenew constitution was approved in an August 4, 2010 referendum. Constitutional reform that addresses the structure of government to create a more effective system of checks and balances is a key element of the reform agenda agreed as part of the power-sharing agreement. Following the process for producing a new draft constitution that was set out in the December 2008 Constitutional Review Act, Kenyans went to the polls on August 4, 2010 to vote on the new constitution. Reflecting broad support for fundamental change, 66.9% of those who voted endorsed it.

The new constitution retains Kenya's presidential system but introduces additional checks and balances on executive power and greater devolution of power to the sub-national level. Fully implementing the new constitution will require passage of several dozen pieces of legislation over a 5-year period. The 2013 national elections were the first conducted under the new constitution.

Executive branch consistes of the president (chief of state, commander in chief of armed forces), prime minister (head of government), and two deputy prime ministers. Under the new constitution, the prime minister and deputy prime minister positions have been eliminated and a vice president position has been created. The change will be implemented in the next national elections.

The unicameral National Assembly consisted of 210 members elected to a term of 5 years from single-member constituencies, plus 12 members nominated by political parties on a proportional representation basis. Under the new constitution, a second legislative body, the Senate, was created. The president appoints the vice president; under the power-sharing agreement, the president with the agreement of the prime minister makes the initial appointment of cabinet members from among those elected to the assembly.

Subsequent cabinet appointments are made by the president in consultation with the prime minister, in accord with the power-sharing agreement's proportional division of cabinet positions. The attorney general and the speaker are ex-officio members of the National Assembly.

In 2002, members of Parliament (MPs) received a monthly salary of roughly 70,000 Kenyan Shillings (or slightly over 1,000 USD). Since entering Parliament, members voted themselves a series of pay raises, resulting in the current salary of approximately 500,000 Kenyan Shillings (or over 7,000 USD) per month. While the previous meager 70,000 did little to lure successful businessmen and professionals into government service, the current remuneration turned out to be quite a carrot.

Parliament passed the Kenya Constitution Amendment Bill of 2008 (the Amendment) on 16 December 2008 established an Independent Boundaries Review Commission to redraw constituency boundaries to reduce disparities in the number of registered voters per parliamentary constituency. Kenya's smallest parliamentary constituency in terms of the number of registered voters had approximately 10,000 voters. The largest had approximately 150,000 voters.

The judiciary consists of a Supreme Court, Court of Appeal, High Court, and Magistrates’ Courts. The Chief Justice is the highest-ranking judicial official. The Supreme Court was established pursuant to the new constitution. There are various lower and special courts, including Kadhi (Sharia) courts. Kenyans have no faith in the legal system and do not expect to receive justice from it.

Administrative subdivisions: 140 districts, joined to form 7 rural provinces. The Nairobi area has special provincial status. Under the new constitution, which is in the process of being implemented, the primary administrative subdivisions will be 47 counties, each with an elected governor.

Once implemented, the new constitution resulted in significant changes to this structure, including greater devolution of power to 47 counties and creation of a second legislative chamber with responsibility for representing the interests of the counties and regions. Implementation of the new constitution will take several years, but these key changes in the structure of government should be in place in advance of national elections, which were to be held March 4, 2013.

Following national elections in March 2013, Kenya embarked on a comprehensive and ambitious program to devolve government structures and authorities that, if implemented effectively, offers great promise for a more accountable and participatory system of governance, robust economic growth, and sustainable service delivery. In FY 2015 Kenya was in its second year of devolution and implementing a development agenda requiring massive infrastructure investments, particularly in energy, transport, and food security. Kenya was grappling with meeting the expectations of a rapidly growing, youthful, and increasingly urbanized population in an environment in which ongoing conflict and instability both within Kenya and in neighboring Somalia and South Sudan increase the security and humanitarian burden of the state.

The second republic, it turned out, looked very much like what it was supposed to replace. Part of the problem with the constitution is a feature of its design. It created a whole new, devolved level of government - the county - but still left most of the resources in the hands of the central government. Similarly, while it did bring decision-making closer to the people, the mechanisms and agencies for holding public officials to account are still based in the capital, Nairobi. As a result, the accountability that devolution was meant to ensure has turned out to be illusory.

the main reason why the constitution has not wrought quite the transformation its authors anticipated is that it remains largely unimplemented. The political class which it was meant to contain have proven to be more than a match for it. From the very start, their support for genuine constitutional change had been lukewarm. While there was overwhelming support for change among the population, political elites saw the constitution primarily as an avenue for contesting power - those who had it resisted change and those who did not pushed for it. Thus the whole effort was constantly derailed by the changing political fortunes of the main actors whose views on the main issues were dependent on where they stood at any particular moment.

His successor, current President Uhuru Kenyatta, was at the time the leader of the opposition and declared after the referendum that Kenyans did not want an imperial presidency. Yet after he took power in 2013, and was tasked with the implementation of the 2010 constitution, he too preferred to keep things as they were. Having made peace with his erstwhile rival, Raila Odinga, Kenyatta has abandoned all pretence of implementing the constitution and is instead now looking to change it. Many suspect that it may be a ploy to hang on to power when his constitutional two-term limit expires in two years' time.

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Page last modified: 28-08-2020 19:49:30 ZULU