Constitutional Developments in Kenya Since 1963

The post independence era witnessed the following constitutional amendments.
- In 1964 a republic replaced a dominion. The president became head of state and head
of government. Majimboiism was abolished and a unitary central state established.
- In the parliament the 12 specially elected MPs were substituted with 12 nominated
MPs. Initially the 12 members had been elected by parliament after the amendment;
the president got the power to nominate the 12 members. This nomination was a
leeway for the chief executive to control parliament.
- The president got power to appoint members of Electoral Commission and Public Service Commission. This destroyed independence of electoral commission of Kenya and the civil service.
- A preservation of Public Security Act was enacted. This Act provided for detention
without trail, hence interfering and contravening the bill of rights as provided for in
for the independence constitution.
- In 1974 parliament lowered the minimum voting age from 21 to 18. There was no explanation for this change. This was a positive gesture in the sense that universal franchise was extended to give the youth greater participation in electing leaders and also contesting for elective positions
- In order to accommodate a few members of parliament who were semi illiterate, Kiswahili was also made the official language of the language of the National Assembly. Parliamentary procedures of enacting bills of laws were relaxed.
- The president got the power through constitutional amendment to pardon anyone who had been disqualified from contesting in General Elections for five years due to an election offence.

There were several constitutional amendments in the 1980s that completely eroded democracy in
Kenya. In 1982 an Act was enacted that changed Kenya from a de facto one state into a de jure
one party state. This was done to block critics of the KANU government from forming
opposition political parties. This Act destroyed multiparty politics that had been enshrined in the independence constitution. Occupation of political office became dependent on being nominated by KANU ruling party.
- Publication period of a bill was reduced from 14 to 6 days and debate on bills, was kept to a minimum. The Chief Executive used this provision to push bills that fostered his interests through parliament.
- Definition of citizenship for those born after 1963 was reduced to whether a father or a mother was a Kenyan citizen. This amendment drastically affected the right to citizenship for the Somali, Asian and European communities. The independence constitution gave citizenship to anyone born in Kenya.
- In 1987 capital offences, which were defined as murder, treason, robbery with violence became non-bail able. The legislature interfered with the role of the judiciary. This amendment contravened the constitutional right of bail, which was based on the premise that an accused person was innocent until proved guilty. By 1987 the KANU government had lost popular support and was experiencing open criticism. This amendment was to allow the government to silence its opponents.
- An Act was also passed that allowed police to hold suspects for 14 days before bringing them to court instead of 24 hours.
- In 1987 the government removed security of tenure of judges at high court and court of appeal. Similarly security of tenure of Electoral Commission and Public Service Commission was removed. Constituencies were increased from 188 to 210.

In the period 1989 to 1991 the struggle for second liberation was in high gear. The government
was forced to repeal section 2A of the constitution to allow multiparty politics. The repeal of
section 2A ushered in a new political phase in Kenya. Since then Kenyans have succeeded in
pressurizing the government to allow for a total review of the constitution.

In 1997, Inter parties Parliamentary Group, IPPG successfully pushed the Kenya Review
Commission Act. This act repealed all laws relating to detention without trial,. It also provided for review of the Kenyan constitution so that nominated members of the National Assembly were to be nominated by parliamentary parties according to the proportion of their elected seats in the national assembly. The Act also provided for election petitions to be heard by the appeal court.
Finally the Act allowed the president to choose hi/her cabinet from among members of parliament regardless of party affiliation (Kiriama 1999:127-128)
From 1998-to 2010 there were consistent initiatives and strategies that enabled Kenya to
complete the constitution review process that had begun in 1991 with the repeal of section 2A to provide for political pluralism. In August 27th 2010 Kenya adopted a new constitution where
there are clear checks and balance against abuse of power by the three arms of the government.
The constitution has provided for a Judicial Service Commission to appoint judges and chief
Justice. The constitution has entrenched political pluralism and put in checks to ensure that the ruling political party does not interfere with the operations of opposition political parties. The new constitution retained a presidential system of government but has put in clauses to stop abuse of power by the president. The new presidential system of government will be based on devolution of power in the counties rather than centralization of power in the executive council.
Each of the counties will have County Assemblies to allow increased participation of the people
in governance.

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Titany answered the question on October 28, 2021 at 12:51