Constitutional Reform and Ethnicity in Kenya ― Multiple Identities and State-Region Relations

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I See Jon Elster and Rune Slagstad, Constitutionalism and Democracy, Cambridge: Cambridge University Press, 1988; Welshman Ncube, "Constitutionalism and Human Rights: Challenges of Democracy", in Pearson Nherere and Marina D'Engelbronner-Kolff, The Institutionalisation of Human Rights in Southern Africa, Oslo: Nordic Human Rights Publications, 1993; J.B. Ojwang, Constitutional Development in Kenya,. Institutional Adaptation and Social Change, Nairobi: Acts Press, 1990. 2 Ncube, 1993, op. cit., p. 11. 1 .

3 On a comparative note, the Norwegian constitution can only be amended according to a procedure, which requires that a general election be held between the tabling of a bill and its ultimate adoption. The bill shall be tabled in the first, second or third year of the four-year parliament term, and shall be publicly announced in printed form. "But it shall be left to the first, second or third [session of the] Storting [the name of the Norwegian parliament] after the following general election to decide whether or not the proposed amendment shall be adopted." (Article 112). Such amendment, however, shall not contradict the principles embodied in the constitution, nor alter the spirit of it. (One parliamentary session lasts from October until June the following year).

4 This approach resembles Adam Przeworski's view that transition to democracy is the contingent outcome of conflict. Cf Adam Przeworski, `Democracy as a contingent outcome of conflicts' in 5 Jon Elster and Rune Slagstad, 1988, op. cit. 5 Cf. Willy Mutunga, Constitution-Making From tHe Middle. Civil Society and Transition Politics in Kenya, 1992-1997, Nairobi, SAREAT, 1999. 6 C£ Mutahi Ngunyi, "Comparative Constitution-Making in Africa: A Critique of the Kenyan Process from Seven Countries", in Mutunga, 1999, op.cit., p. 264.

7 Dahl, Robert, Polyarchy. Participation and Opposition, New Haven: Yale University Press, 1971, 1, p. 105. 8 The notion of transitional cycle has been suggested in Mutahi Ngunyi, "Civil Society and Two Transition Cycles in Kenya", SAREAT Working Paper I 1, Nairobi, 1998. 9 Cf. Bard-Anders Andreassen, Gisela Geisler and Arne Tostensen, A Hobbled Democracy. The Kenya General Elections 1992, Report R 1993:5, Bergen: Chr. Michelsen Institute, 1993. See also Arne Tostensen, Bard-Anders Andreassen and Kjetil Tronvoll, Kenya's Hobbled Democracy Revisited. The 1997 General Elections in Retrospect and Prospect, Human Rights Report No. 2, Oslo: Norwegian Institute of Human Rights, 1998. For further details, cf. Tostensen et al., 1998, op.cit.

The patrimonial state as it evolved in Africa, is a 're-creation' of the colonial legacy with 'centralising administrative states with organic-statist orientation'. Cf. Thomas M. Callaghy, "Politics and Vision in Africa", in Patrick Chabal (ed.), Political Domination in Africa, Cambridge: Cambridge University Press, 1986, p. 32. Cf. Herb Feith and Alan Smith, "Self-determination in the 1990s: Equipping the UN to Resolve Ethne-Nationalist Conflicts", in Kumar Rupesinghe et al. (eds.), Conflict Transformation, Basingstoke: St. Martin Press, 1995. Cf. Joel Barkan, "The Rise and Fall of the Governance Realm in Kenya", in Goran Hyden and Michael Bratton, Boulder, CO: Lynne Rienner, 1992. 14 Musambayi Katumanga, "The Political Economy of Constitutional Amendments in Kenya 1895- 97", SAREAT Working paperlIPAR Collaborative Paper 005/98, Nairobi, 1998.

Constitution of Kenya, Kenya Gazette Supplement No. 105, 10 December 1963, Ch. VI, Parts 1-6 (articles 91-117). Githu Muigai, "Ethnicity and the Renewal of Competitive Politics in Kenya", in Harvey Glickman (ed.), Ethnic Conflict and Democratisation in Africa, Atlanta: African Studies Association Press, 1995, p. 166. " Institute for Education in Democracy. National Election Data Handbook. Kenya 1963-97, Nairobi. IED, 1997, p. 17. Majimbo is the plural form of the Kiswahili term 'jimbo', which means 'region'. Gary Wassermann, "The Independence Bargain: Kenya Europeans and the Land Issue", in Journal of Commonwealth Political Studies, Vol. XI, 1973, p.113. In general, the independence constitution was a mixture of a Westminster-type political system and various components from other constitutional systems, e.g. the Indian federal system. It contained numerous checks and balances on the exercise of power, and sought to avoid the highly repressive legal machinery of the colonial power. It included a Bill of Rights, inspired by the European Convention on Human Rights and Freedoms.

20 According to Frank Furedi, there were three main reasons why Kikuyu emigrated to the Rift Valley in the 1920s: landlessness, a desire to avoid military service with carrier corps, and a desire to escape the "despotic rule of the chiefs and their agents", cf. Frank Furedi, 'The Kikuyu squatters in the Rift Valley: 1918-1929, paper presented at the Annual Conference of the Historical Association of Kenya, 1972.

2' Daily Nation, 9 October 1963. 22 Cf. Muthahi Ngunyi and Wachira Maina, "Emerging themes in constitution-making in Kenya", draft mimeo, 1995, p. 3ff. 23 Jean-Francois Bayart, The State in Africa. The Politics ojthe Belly, London: Longman, 1993.

24 On the concept of 'governance realm', see Goran Hyden, "Governance and the study of politics", in Goran Hyden and Michael Bratton, 1992, op. cit. For an application of the concept to the Kenyan post-independence period, see Joel D. Barkan, "The rise and fall of a governance realm in Kenya" in the same volume. The quotation is from the latter piece, p. 167.

25 Ngunyi and Maina, 1995, op.cit. zb Barkan, 1992, op. cit, p. 171.

27 Mutahi Ngunyi, "Forces conditioning the transition to multiparty politics in Kenya", paper presented at the first regional conference on law, politics and multi-party democracy in East Africa, Dar es Salaam, 1993, p. 7. 28 Oginga Odinga, for example, refers to the behaviour of the British in the final constitutional talks as political 'blackmail': "Once again British Government tactics were to force a KADU policy on KANU, or to threaten to postpone independence. It was blackmail, and we said so." Oginga Odinga, Not Yet Uhuru. An Autobiography, Nairobi: Heinemann, 1967, pp. 238-9. 29 C. Gerzel, "Kenya's Constitutional Changes", in East Africa Journal, 1966, p. 19. ---

3oBarkan, 1992, op. cit., p. 171. 1. 31 Muigai, 1995, op.cit., p. 166.

3z Ngunyi, 1993, op.cit. 33 John Okumu, "The Socio-Political Setting", in G. Hyden, R. Jackson and J. Okuku (eds.). Development Administration: The Kenyan Experience, Nairobi: Oxford University Press, 1970, p. 38. 34 Report of the Civil Service Review Committee 1979-80 (Waruhiu Committee), Government of Kenya, 1980, p 39. Cf. also Ame Tostensen and John G. Scott (eds.), Kenya,: Country Study and Norwegian Aid Review, Bergen: Chr. Michelsen Institute, 1987, p. 100ff Interestingly, ten years prior to the Waruhiu Committee, the Public Service Structure and Remuneration Commission (Ndegwa Commission), had acknowledged in 1971 that corruption existed in the public service. Nonetheless, it recommended that civil servants be allowed to conduct private business alongside their public office, provided that business interests were publicly declared. Cf. Tostensen and Scott, 1987, op.cit., and Goran Hyden, "Administration and Public Policy", in Joel Barkan (ed.), Politics and Public Policy in Kenya and Tanzania, Nairobi: Heineman, revised edition, 1984, p. 116.

'S Harambee is Kiswahili for 'pull together'. ;6 Barkan, op.cit., p. 168. 37 Kenya People's Union (KPU) had been formed in 1966 by Oginga Odinga after he became isolated by the governing elites of KANU. 38 Muigai, 1995, op.cit., p. 172ff.

'9 Njonjo had supported Moi in 1976 when the Kiambu faction of the Kikuyu tried to change the constitution in order to prevent Moi, then in his capacity as vice president, from automatically succeeding the president. According to the constitution, the vice president would automatically function as president for a period of 90 days, in case of the incumbent president's retirement or death. Due to the advanced age and ill health of Kenyatta, the succession issue was a subject of political concern (cf William Ochieng', "Structural and Political Changes", in B.A. Ogot & W.R. Ochieng' (eds.), Decolonisation and Independence in Kenya 1940-93, London: James Currey, 1995). The changc-the-constitution movement in the mid-1970s did not succeed, however, and Moi became acting president when Kenyatta died in August 1978. He was subsequently elected leader of KANU at a delegates' conference on 3 October, and sworn in as president by the attorney general on 10 October 1978. 40 Saitoti is born to Kikuyu parents, but grew up among Maasai in Kajiado district where he assumed a Maasai identity and took a Maasai name. In the context of ethnic politics his true ethnic identity has been a source of controversy since he left academia and entered the political arena.

41 Muigai, 1995, op. cit., p. 175. '2 Ibid., p. 174. " The Co-ordination of Non-Governmental Organisations Act of 1991. For details see Stephen N. Ndegwa, "Civil Society and Political Change in Africa: The Case of Non-Governmental Organisations in Kenya", in International Journal of Comparative Sociology, vol. XXXV, no. 1-2, 1994. 44 Tostensen and Scott, 1987, op.cit., p. 139ff. 45 Cf. Amnesty International, Kenya. Torture, Political Detention and Unfair Trials, London: Amnesty International, 1987; and Africa Watch, Taking Liberties, London: AfricaWatch, 1991.

46 Daily Nation, 2 June 1990. 47 Daily Nation, 12 June 1992.

48 Ngunyi, 1995, op.cil., p. lOff.

49 Cf. Siri Gloppen, South Africa. The Battle over the Constitution, Aldershot: Ashgate, 1997. p. 215ff. so /t;�p.2t5ff. 51 Stein Rokkan and Derek W. Urwin, Economy, Territory, Identity. Politics of West European Peripheries, London: Sage, 1983, p. 118.

52 Nairobi Law Monthly, no. 56, August 1995. 53 Cf. Tostensen et al., 1998, op.cit.

54 Cf. Tostensen et al., 1998, op. cit., pp. 33-38. However, not all of these 'democratic safeguards' were observed in practice.

55 The 'pact' between KANU and the Luo-dominated National Development Party (NDP) may be interpreted in this light. It may be seen as an attempt to secure the survival of the ruling elite, which considers it to be in its interest to negotiate a minimum pact with one or several other parties cum ethnic communities. 56 Cf. Przeworski, 1991, op. cit., ch 1.

Cf. Donald L. Horowitz, Ethnic Groups in Conflict, Berkeley: University of Califomia Press, 1985.

58 A regional hegemonic ethnic group is defined as one enjoying a dominant or majority position in a given region. s9 Gloppen, 1997, op. cit., p. 49. 60 Ibid., p.51. 1.

6' Ibid., p. 43ff.

The standard reference to the consociational model is Arend Lijphart, Democracy in Plural Socielies. A Comparative Exploration, New Haven: Yale University Press, 1977. 63 Horowitz, 1985, op. cil, p. 60 1.

This institutional orientation of the constitutional issue reflects the need for identifying structural techniques to reduce ethno-political contention. There is no easy answer to which structural or institutional devises that would best respond to the desire of conflict reduction, and to introduce institutions for a re-orientation of the inter-ethnic relationship. From an institutional and constitutional perspective, the critical issue is to identify constitutionally embedded institutions for a re-structuring of the relationship between the centre (the state) and regional politics. Ethnic conflict is not primarily about cultural differences (the cultural stuff of ethnicity), but about the failure to establish accommodative and tranquil inter-cultural relationships in social and economic life, governed by institutions for conflict management and reduction. ss An Economic and Public Policy Agenda for Kenya, sub-section entitled "Summary of the prevailing situation", 1998.

66 Murray Faure, "The Electoral System", in Murray Faure and Jan-Erik Lane, South Africa: Designing New Political Institutions, London: Sage, 1996, p. 98.

6' Kivutha Kibwana and Wachira Maina, "State and Citizen: Visions of Constitutional and Legal Reform in Kenya's Emergent Multi-Party Democracy", in Joseph Oloka-Onyango, Kivutha Kibwana and Chris Maina Peter (eds.), Law and the Slruggle for Democracy in East Africa, Nairobi: Claripress, 1996, p. 466.


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