Global Governance & Justice

GLOBAL GOVERNANCE & JUSTICE

LGFF | | | HISTORY OF CONSTITUTIONS IN THE WORLD

Ø The code of Hammurabi of Babylonia

| HISTORY OF CONSTITUTIONS IN THE WORLD Ø Mosaic law

| HISTORY OF CONSTITUTIONS IN THE WORLD

| Magna Carta

| Modern HISTORY

1933 1938

| The KENYAN STORY

LGFF | The Kenyan Story

One indisputable fact about Kenya since independence has been the elusiveness of attaining a viable constitutional dispensation and the constant and persistent abuse and misuse of constitutional checks and balances.

While the Independence Constitution sought to establish a feasible constitutional order, it fell prey to numerous amendments.

| The phase between 1897 and 1905

Attempts by the British government to establish a machinery of government in colonial Kenya.

The East African Order in Council of 1897, establishing the administrative machinery for the East African region, was the first legislation to be adopted. This put a lot of emphasis on judicial power as well as establishing the various judicial institutions.

The 1897 Order in Council was later to be repealed and replaced by another of 1902. The latter shifted emphasis from judicial institutions to administration. Administrative powers were also vested in the Commissioner but subject to instructions from the imperial government. | The phase between 1920 and 1954

In 1920, a constitution was established by the Letters Patent and Royal Instructions. While the powers and functions of the Legislative Council were retained, several amendments were made as to its composition in order to cater for diverse interests as fronted by the various races. This took into account the need for the representation of the Indians, Arabs and African.

It is instructive to note further that in 1920, a part from the Coastal Strip, the whole East African protectorate was annexed as a colony.

| The phase between 1954 and 1960

Lyttleton Constitution which embodied two significant changes.

1. It sought to introduce active participation of all races into the affairs of the government irrespective of their numerical strength.

2. Concerns over the composition and powers of the Executive Council.

The Lyttelton Constitution further established a Council of Ministers as ‘the principal instrument of government that would exercise collective responsibility for decisions on government policy.’ Even though the Executive Council was retained in the Constitution, its powers were greatly reduced.

| The phase between 1954 and 1960

Following continued agitation by Africans for more representation in the Legislative Council, coupled with the fact that the Lyttleton Constitution was designed to last until 1960, the colonial secretary made his own resolutions. This formed the basis of a new constitution known as the Lennox-Boyd Constitution of 1958.

This constitution was established through an Order in Council which repealed the Royal instructions, Letters Patent and Order in Council that previously constituted the constitution.

African representation in the Legislative Council: from 2 to 14.

| The phase between 1954 and 1960

Given the difficulties inherent in implementing this constitution, coupled with un-co-operative African members in the Legislative Council, the need for a constitutional conference was long overdue.

This led to the Lancaster House Conference of 1960 which ushered in the fifth phase of constitutional development.

| The phase between 1960 and 1963

Roadmap towards an independent Kenya. It was subsequently followed by yet another Lancaster House Conference in 1962 as well as protracted meetings in Nairobi.

Kenya was granted internal self-governance on 1 June 1963 under a new self- government constitution. It is this constitution that formed the basis of the Independence Constitution with minor modifications. | | The phase between 1960 and 1963

1. The Independence Constitution embodied an extensive system of regionalism (what became to be commonly referred to as Majimboism).

The country was divided into seven regions with each enjoying its independent legislative and executive powers. Every region had its own president who was elected by the members of the Assembly.

| | The first amendment to the Independence Constitution of Kenya was effected through the Kenya Amendment Act number 28 of 1964. This was first introduced in the House of Representatives in October 1964.

Its main purpose was to declare Kenya a sovereign Republic as from 12 December 1964.

This amendment further abolished the post of Prime Minister and provided that a President would be elected at a General Election and the nomination of the Presidential candidate would have to be supported by at least one thousand registered voters.

This amendment removed the privileges and prerogatives which the Queen had enjoyed in respect of Kenya and they were vested in the Government of Kenya as from 12 December 1964 to be exercised by the President.

| The second amendment was passed on 1 December 1964. This amended the chapter on the Judicature.

The president was vested with the power to appoint the Chief Justice without consulting the regions.

He was at liberty to make judicial appointments without consulting the Judicial Service Commission and to initiate an investigation into the conduct of the judge for purposes of removal of the judge.

| The third Amendment came by virtue of the Constitution of Kenya (Amendment) Act No. 16 of 1965. Through this Amendment, KANU quenched its fears by abolishing ‘majimboism’ in total.

| - 90’ clamour: Multiparty

- 1997: IPPG & Ufungamano Initiative

- 2000: CKRC

- Bomas draft & Wako draft

- 2005: Referendum

- 2009: Harmonized draft

- 2010: Promulgation | | GLOBALIZATION

FOREIGN AFFAIRS POWER

INTERNATIONAL INSTITUTIONS

SUPRANATIONAL INSTITUTIONS

SOVEREIGNTY

HUMANITARIAN INTERVENTION / R2P

| UN

ICJ

ICC

AfCHPR

ICTY

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