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1 Chapter 19 Presidents and Premiers of Kenya And CHAPTER 19 PRESIDENTS AND PREMIERS OF KENYA AND AFRICA ASSESSED: KENYATTA 1, MOI, KIBAKI AND KENYATTA II AND BEYOND This Draft Chapter may be cited as: Ben Sihanya (forthcoming 2019) “Presidents and Premiers of Kenya and Africa Assessed: Kenyatta 1, Moi, Kibaki and Kenyatta II and Beyond,” in Ben Sihanya (2019) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol. 2: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya. 19.1 Presidents and Premiers of Kenya, 1963-2019 How have the presidents performed on the basis of life, liberty, land (property) and the pursuit of prosperity or happiness? What Afro-Kenyanist approach can be used to assess and judge performance of presidents and premiers in Kenya and Africa? 19.1.1 Jomo Kenyatta (12 . 12 .1964 - 22 . 8 . 1978) The institution of the Presidency in Kenya was first held by President Jomo Kenyatta. At independence, executive authority was vested in the Queen of England and exercised on her behalf by the Governor-General. A Prime Minister was appointed by the Governor-General from among members of the House of Representatives. The institution of the Presidency was a creation of the first constitutional amendment (Act No. 28 of November 24, 1964). This amendment abolished the office of Prime Minister and created the office of an executive and powerful President who became the Head of State, Head of Government, and Commander-in- Chief of the Armed Forces. 19.2.2 Assumption of Presidency by Kenyatta Kenyatta was then declared President in December 1964 by constitutional or Parliamentary fiat.1 No elections were held in order to give all Kenyans an opportunity to elect a President of their choice; nor was a referendum held on this fundamental constitutional change. Cf. was the Constitution therefore valid? From 1964 to 1969, the House of Representatives had the power to elect the President. This changed with the 10th Amendment (Act No. 45 of July 12, 1968), which provided that the President was to be elected through a popular vote.2 Cf SA Presidential election; 1 Postpone elections, citing cost, not ready, assassinate-CMG, TJ-to join 002, KPU; kill, bankrupt, state violence (ESAO), “Ethnic Cleansing and Civil Society in Kenya,..” Coast is clear, conduct elections. Cf. Kenya (2012); Nigeria (2015); South Sudan (2015)… 2 Yash Pal Ghai and JWPB McAuslan, (1970) Public Law and Political Change in Kenya, Oxford University Press; David Goldsworthy (1982) Tom Mboya: The Man Kenya Wanted to Forget...1968: Postpone elections - Costly - Not ready - Assassinate – CMG; TJ – to join 002, KPU; kill, bankrupt. 1 recall....Mandela, Mbeki, Zuma, Ramaphosa..... President Kenyatta died in office in August 1978. He never faced any (democratic) presidential election in 15 years – the constitutional, political party and electoral process was always organized or manipulated to make Kenyatta President. The main one was that the president of KANU would be the President of the Republic and KANU was the only party. 19.2.3 Assessing the Kenyatta Presidency 19.2.3.1 Challenges to the new Kenya Republic At independence Kenya was faced with two major divisive and at the same time unifying factors. These were (1) ideology,3 and (2) white race and ethnicity; kalaba (colour bar) A third set of factors cut through the major two, i.e. disease (ugonjwa); poverty (umaskini); ignorance (ujinga or upumbavu); wealth accumulation and class politics. Being an ex-British colony, and a shining example of a newly independent African state, Britain and America staked a claim on Kenya in the context of Cold War politics.4 Scholars and analysts have argued that ethnicity started rearing its ugly head during Kenyatta 1’s regime.5 Charles Hornsby, a scholar and historian has specifically titled some pages of his book “The Kikuyunization of Kenya under President Kenyatta.”6 In this account, he shows how the Kenyatta Government ensured the entrenchment of Kikuyu power and the sidelining of other ethnic groups from government jobs. Githu Muigai, the A-G under Kenyatta Plus, agrees.7 - Sate violence (ESAO – ethnic cleansing) - Coast is clear, conduct elections, but not presidential. A Governor said K1 would be a leader unto darkness and death. Was he? 3 See Atieno Odhiambo (1988) “Democracy and the ideology of order in Kenya;” Anyang’ Nyong’o (1989) “State and society in Kenya: the disintegration of the nationalist coalitions and the rise of presidential authoritarianism, 1963-78,”…. 4 JK, Moi, TJ 5 Godwin R. Murunga, “The State, Its Reform and the Question of Legitimacy in Kenya, in Identity, Culture and Politics: An Afro-Asiatic Dialogue”, Vol. 5, No. 1, 2004. Also see, K. Omolo, ̳”Political Ethnicity in the Democratization Process in Kenya”, African Studies, Vol. 61, No. 2, 2002, at p. 209-221. 6 Charles Hornsby (2012) Kenya, A History Since Independence, IB Taurus, London, New York, at 254. Kenyatta 1 had appointed 11 senior parastatal heads from the Kikuyu community in the 1970s (compare this to the equally tribal Kenyatta Plus’ appointments in 2013 and 2014). Also, out of the then seven Provincial Commissioners, only three were non-Kikuyus. Compare this to the Moi (1978-2002 era); Kibaki (2002-2007 era); Kibaki -Raila (2008- 2013era) and the Uhuru-Ruto era (2013-to date). The 2010 Constitution is a template for correcting the ethnic divides exacerbated by all the past presidents who pitted big tribes against the small ones for political expediency but is it being effectively implemented? Is ethnicity worsening? Yes. Consider who is in charge of security, finance, law or legal affairs nationally and in most institutions of the central or national Government. 7 Githu Muigai (2003) “Jomo Kenyatta and the rise of the ethno-nationalist state in Kenya,” in Bruce Berman (eds) Ethnicity and Democracy in Africa Ohio University Press, 200-217. 2 Cf. any necessary compromises by the Mzee Jomo Kenyatta regime if any. 19.2.3.2 Relations between the West and Kenyatta’s Kenya Under Kenyatta 1’s regime, Kenyan relations with the UK remained close, but by the mid – 1970s the British influence was weakening and the UK’s economic decline limited their ability to give preferential treatment to Kenya. With the British military commitments near an end and the land acquisition process complete, dealings between the two countries began to approximate a normal state-state relationship. However, Britain remained Kenya’s largest aid donor throughout the 1970s.8 The biggest change in relations came in 1973 when the UK joined the European Economic Community (EEC). This required a renegotiation of all preferential trade arrangements with the UK.9 It is believed that the Kenyatta Government campaigned against British and French arms sales to South Africa. It criticized Western links to South Africa in a way that embarrassed the UK on several occasions. 10 Cf. William Attwood (1967) The Reds and the Blacks: a Personal Adventure Harper & Row. Kenya and the US maintained friendly but low-level relations. According to Hornsby, the 1970s were a period of US disillusionment with Africa. During this time, US regional attention focused on South Africa, Nigeria and Congo. What were the constitutional, statutory and judicial perspectives on Kenyatta’s foreign policy and international relations from 1963 to 1978? 11 19.2.3.3 Parties in the constitution of the Kenyan Republic Significantly the major political parties were KANU, KADU12 and the African Peoples Party (APP). These did not have significant ideological differences. Indeed, it was largely thought that while KANU was nationalistic and pro-African majority, KADU was substantially associated with colonial (or settler) capital and politics. Some even claimed that KADU was sponsored by the colonial settlers and politicians who feared that a nationalistic and revolutionary KANU 8 Ibid, at 236. 9 Ibid.In the end, Kenya followed the “Yaoundé option” for aid and trade, and structured their relationship with the UK and the rest of the EEC along the lines developed for the French colonies. 10 Ibid,. Kenyatta, for instance, secretly agreed to participate in dialogue with South Africa as long as the South Africans publicly accepted the eventual equality of races, even without a timetable. Kenyatta was also a personal friend of Dr Hastings Banda in Malawi, whose willingness to do business with South Africa aroused international protest. 11 JB Ojwang and Luis Frnacheschi (2002) “The Constitutional Regulation of the Foreign Affairs Power: A Comparative Assessment,” Journal of African Law, Oxford, 46, 1, 43–58. 12 Kenya African National Union (KANU); Kenya African Democratic Union (KADU). 3 would nationalise colonial or settler capital 13and either expel Whites or deny them citizenship14 or other liberties. KADU and colonial overlords hid their designs by arguing that KADU was intended to protect minority ethnic groups and races against the dictatorship of the majority i.e. the Kamba, Kikuyu, Kisii, Luo and to some extent Luhya in KANU. Remarkably, immediately after independence in 1963, Kenyatta made statements to clarify that an African (i.e. his) Government was not a gangster Government and that it would protect private property based on the model of market enterprise and individual freedom and liberties (i.e. liberal constitutionalism).15 19.2.3.4 Land question, settler question, settlement of key axis, resource distribution…. Kenyatta goes to Nakuru (the “capital of settlerdom”) in 1963 and addresses White farmers thus, “I have come to urge you to stay and farm this land … If I have made a mistake against you, it is for you to forgive me, and if you have made a mistake against me then it is for me to forgive you….” Kenyatta was emphasizing that Kenyans suffered without bitterness;16 that although Kenyans suffered, they can forgive but not forget.17 To many, this was a betrayal of the spirit and purpose of independence - especially those who had lost their land and suffered human rights violations in the hands of whites.18 Cf: K+ and Jubilee prayer rally in Afraha after the ICC cases against its leaders were dropped.
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