History and Government Form 2 Notes : CHAPTER 6 – Constitutions and constitution making

CHAPTER 6

Constitutions and Constitution Making

A constitution is a set of fundamental principles and laws established to govern and regulate the behavior of citizens of a particular state as they relate to each other in their daily activities, as well as regulating the conduct of the people entrusted with managing the affairs of the state.

A constitution clarifies the duties and rights of the citizens as well as the duties, rights, and responsibilities of the rulers.

The constitution regulates the powers of government by controlling how it behaves as it manages the country’s affairs. It also regulates the relationship between the government and the citizens of the state.

A country’s constitution has the following functions:

1. It clarifies the powers, duties, and responsibilities of those in power (rulers) and their subjects.
2. It protects the rights and freedoms of all citizens.
3. It limits the powers of rulers who would attempt to oppress their subjects. It also limits the possibilities of the subjects to insubordinate the rulers by restricting some of their rights and freedoms.
4. A constitution enables a country to follow a well-defined course by spelling out the powers of the government, helping to control national instability.
5. A constitution defines and spells out the formal structure of government and the functions and powers of each state organ, for example, the powers of the regional government in relation to the central government and the powers and duties of the executive, the legislature, and the judiciary.
6. A constitution offers the legal framework from which the country’s laws are made.
7. A constitution reflects the wishes of the people and their social, cultural, economic, and political aspects.

Characteristics of a Good Constitution

1. A good constitution must clearly define and spell out the structure of government and the functions and powers of each level and arm of government.
2. The fundamental rights and duties of all citizens must be clearly spelled out, and the way the rights will be guaranteed specified.
3. Roles and powers of specific rulers such as Presidents and Prime Ministers must be stipulated.
4. The separation of powers of the Judiciary, the Legislature, and the Executive must be very clear to avoid conflicts of roles.
5. The composition, functions, and powers of all laws to be enacted by parliament must be made clear.

Types of Constitution

There are various kinds of constitutions in the world. Some are democratic constitutions, others are undemocratic. There are also unitary or federal constitutions. Additionally, there are written constitutions and unwritten constitutions.

Written Constitutions

A written constitution is one in which the basic principles and laws are written down and are therefore available in a formal document. Examples of countries with written constitutions include Kenya, USA, and France.

The following are the characteristics of a written constitution:

1. It is written in an official volume that one can buy to study.
2. It is rigid and not easy to alter. Any amendment is made using a procedure that is usually slow and cumbersome.
3. A written constitution is usually simple, clear, and consistent. A special body of experts is given the responsibility of drafting it using a well-formulated procedure.
4. It clearly sets the powers of the judiciary, the executive, and the legislature in a particular state.
5. It spells out the fundamental rights and freedoms of the citizens. To ensure this, the draft constitution is taken to the legislature for approval.
6. In some written constitutions, rules are found in traditions based on conventions and customs of the people.
7. A written constitution is prepared so that one can compare the actions and day-to-day activities of the government with what is written and expected to be achieved and maintained.

Advantages of Written Constitution

The following are the advantages of a written constitution:

1. Once prepared, it is not easy to change or amend it to favor particular personalities in power.
2. It becomes easy for the literate to know the expectations of the government because they can buy official copies and read them. It is readily available for reference and use.
3. No individual can alter or manipulate any part of the written constitution. The legislative body has the right to make even minor amendments or alterations.
4. The legislators and delegates can incorporate the traditions, conventions, and customs of the citizens into a written constitution that is people-driven and recognizes people’s ethnic groupings.
5. A well-written and acceptable constitution can unite all the people in a nation.
6. A written constitution provides a smooth procedure for handing over power after general elections, death of rulers, or resignation by providing clear guidelines on what should be done.
7. A written constitution enables a country to operate in a favorable and orderly manner.
8. A written constitution spells out the fundamental rights of citizens very clearly, making them aware of their rights and providing a reference when their rights are infringed.

Disadvantages of Written Constitution

1. It is too rigid to be easily altered without extensive consultation.
2. Amending a written constitution is slow and cumbersome.
3. The language used to write the constitution volumes is difficult for people who have not studied disciplines such as law. It is difficult to simplify without altering the meaning and emphasis.
4. If the constitution is not properly formulated, it can cause conflicts among various arms of the government.
5. For a good lasting written constitution, very qualified experts are required, who may not be available in some countries.
6. The constitution-making process is costly and very involving if all procedures are followed strictly.

Unwritten Constitution

An unwritten constitution is one that does not exist in a single formal official document. Britain is an example of a country with an unwritten constitution. The sources of the British constitution include the Act of Parliament, British conventions, the Hansard, legal publications by reputable authorities, decisions made by British law courts from time to time, and Royal prerogatives of the King or Queen to declare war or make treaties of peace.

Advantages of Unwritten Constitutions

1. It is easy to make amendments to cope with prevailing situations.
2. It is not rigid and can be altered without extensive consultation.
3. This constitution is long-lasting because it is native and acceptable to the majority.

Disadvantages of Unwritten Constitution

1. Fundamental rights of citizens are not clearly spelled out in an unwritten constitution.
2. An unwritten constitution requires very qualified judges and lawyers who can cope with the tedious work of referring to many constitutional documents such as statutes, historical documents, and customs to make judgments.
3. An unwritten constitution is not as clearly expressed as a written constitution.

The Independence Constitution

The first constitution in Kenya was established during British colonial rule and is referred to as the colonial constitution. It discriminated against Africans while favoring the whites.

As Africans became aware of their rights, they appealed to the colonial government to grant them their rights. Due to political pressure from Africans, the colonial government reluctantly tried to change the constitution.

In 1960 and 1962, constitutional conferences were held in London with African representatives attending. The Lancaster House conference held in London in 1962 concluded the constitution for independent Kenya and set the date for independence. This constitution is called the independence constitution.

The conference was attended by representatives of African political parties such as Kenya African National Union (KANU), Kenya African Democratic Union (KADU), and African People’s Party (APP). KANU and KADU differed on the structure of government they wanted.

KANU preferred a strong unitary constitution, while KADU wanted a majimbo or federal constitution. KADU favored the majimbo constitution because it feared smaller communities would be dominated by larger ones such as the Luo and the Kikuyu. KANU believed a unitary government would protect the interests of smaller communities.

The outcome of the 1962 conference was a federal form of constitution, followed by the formation of a coalition government between KANU and KADU.

Provisions of the Independence Constitution

The independence constitution provided a regional (majimbo) government. Kenya was split into six regions, each with its own regional government and assembly with full legislative powers.

There was a central government consisting of a two-chamber national assembly: the Senate and the House of Representatives. The central government was headed by a Prime Minister from the party with majority seats. Nairobi was the headquarters of the central government.

The Queen remained the head of state, represented by the Governor General whose duties included approving legislation, ensuring internal security, handling foreign affairs, and giving assent to bills to become laws.

The independence constitution recommended a multi-party system of government. The party with the majority was to form the government. It recommended a Bill of Rights to protect the fundamental interests of individuals.

It also recommended the formation of a Central Land Board to deal with land issues and an independent Public Service Commission for appointing, disciplining, and firing civil servants.

The independence constitution recommended setting up an independent electoral commission to set constitutional boundaries and conduct elections.

An electoral commission was established, made up of the speakers of both the House of Representatives and the Senate, nominated representatives of each region, and a nominated representative of the Prime Minister.

The independence constitution provided an independent judiciary that showed complete impartiality when judging cases. No one was allowed to influence judges’ decisions, and judges enjoyed security of tenure.

Lastly, the independence constitution organized protection of minority rights, mainly to ensure that European and Asian minorities were protected and their properties safeguarded.

The Kenya Constitution

Kenya is governed by a democratic constitution that recognizes and protects human rights, such as the right to acquire and own property, right to life, and rights safeguarding individual freedoms of expression, association, conscience, movement, and assembly. It also recognizes freedom of worship, belief, and opinion.

The Kenya constitution ensures that people have full and equal enjoyment of all rights and freedoms.

It also ensures that all people are equal before the law. An individual has the right to equal protection and benefit of the law and the right to a fair trial. According to the Kenya constitution, no person may be required to perform forced labor or be held in slavery.

Constitutional Making Process

Constitution making can take place in several ways:

1. By Parliament, where at least 65% of all parliamentary members must vote for a change to the Kenya constitution.
2. Using a constitutional review commission, which may be set up by the President or Parliament.
3. By a constitutional conference attended by selected people from various interests in society, who make a draft constitution that can, if necessary, pass through a referendum.
4. By a national convention composed of representatives from all walks of life who identify and discuss important national issues to prepare a constitution.

Constitutions are made through established procedures agreed upon by the majority. In Kenya, the constitutional making process is as follows:

1. The general public is provided with civic education to enable participation in the constitution-making process. They are taught what a constitution is and why it is necessary. They learn about the shortcomings and strengths of current constitutions and are then requested to give their views. A commission visits all constituencies to listen and record public views. These views are compiled, and the majority wishes are used to prepare a draft constitution for further discussion.
2. The recommendations are printed, published, and circulated to the public. The commission revisits the public to gather remarks, covering all provinces to ensure the outcome reflects the people’s will.
3. A national constitutional conference is organized and attended by delegates from each district. The commission submits the recommendations, largely public opinions, for further discussion and scrutiny. Some recommendations may be rejected, accepted, or amended. Conference members may replace some recommendations with their own.
4. If conference members cannot reach consensus on certain recommendations, those are referred back to the public for resolution through a referendum organized by the Constitution of Kenya Review Commission, conducted within two months.
5. After this, the draft constitution is forwarded to the National Assembly by the Attorney General. The draft is treated as a bill and published for discussion. Once recommended by Members of Parliament after passing all stages, it is presented to the President for assent.
6. Finally, the constitution is published in the Kenya Gazette, and implementation begins.

Features of Kenya Constitution

a) The constitution is democratic

Since independence, Kenya has developed a democratic constitution based on the separation of powers between the Judiciary, the Legislature, and the Executive. This reduces conflicts between the three arms of government, which are required to work independently without excessive interference.

b) There is supremacy of the constitution and the rule of law

Kenya is established on the principles of the supremacy of the constitution and the rule of law. It is governed according to the constitution, which acts as the supreme law binding all authorities and individuals.

The rule of law emphasizes handling all legal matters according to Kenyan laws. Every suspect is given an opportunity for self-defense before a competent court after arrest. The prosecution must prove guilt within a specific period, and until proven guilty beyond reasonable doubt, the defendant is presumed innocent.

c) Recognition and protection of individual human rights and freedom

The Kenya constitution preserves the dignity of individuals and communities, promotes the realization of the potential of all people, and promotes social justice. These rights and freedoms are contained in the Bill of Rights.

d) A government must have a relationship with the constitution

It is unlawful to establish a system of government contrary to the constitution.

Constitutional Amendments Since Independence

Kenya attained internal self-government on 1^st June 1963. The constitution adopted then was the independence constitution.

1. In 1964, the independence (majimbo) constitution was abolished. Kenya became a republic with an executive President as head of state and government, adopting a republican constitution with a unitary system of government.
2. In 1966, the two houses of parliament—the Senate and the House of Representatives—were abolished and replaced with a single chamber National Assembly (Parliament).
3. In 1966, a member who resigned from the party that sponsored them had to seek a fresh mandate from the electorate on the new party’s ticket. Also, a member who missed eight consecutive parliamentary sittings or served a prison sentence over six months would automatically lose their seat.
4. In 1966, constitutional amendments required a 2/3 majority of Parliament members.
5. In 1966, the Public Security Act allowed detention without trial for public interest, e.g., citizens considered a danger to state security.
6. In 1966, if the Presidency fell vacant, the Vice-President would act as President for the remaining term. The President was given power to nominate 12 members of parliament.
7. In 1968, the President was empowered to change administrative boundaries, removing Parliament’s control over this.
8. In 1968, voting age was lowered from 21 to 18 years. Presidential candidates had to be at least 35 years old, lowered from 40.
9. In 1968, presidential elections were to be held directly by the people qualified to vote.
10. In 1968, if the presidency fell vacant, elections were to be held within 90 days. The Vice-President acted as President for up to 90 days. The President could postpone elections if necessary and shorten Parliament’s life.
11. In 1975, the President was empowered to pardon election offenders, enabling them to contest future elections.
12. In 1977, the Kenya Court of Appeal was established, replacing the East African Court of Appeal.
13. In 1978, public officers wishing to contest parliamentary elections had to resign six months before election time.
14. In 1982, Kenya changed from a de facto one-party state to a de jure one-party state through constitutional amendments introducing ‘Section 2A’. KANU became the only legal political party.
15. In 1982, security of tenure was established for the Attorney General and Controller Audit General.
16. In 1982, the office of Chief Secretary and Head of Civil Service was established.
17. In 1987, the post of Chief Secretary was abolished and replaced by the Secretary to the Cabinet due to excessive power of the former.
18. In 1987, the President was empowered to dismiss government officers such as the Attorney General and Controller and Audit General at will.
19. In 1988, the President was empowered to dismiss High Court judges and the chairman of the Public Service Commission at will.
20. In 1988, the Police were empowered to hold suspected criminals for up to 14 days before presenting them to court.
21. In 1990, tenure of office was guaranteed for the Attorney General, Chairman of the Public Service Commission, and Controller and Audit General.
22. In 1990, the Presidency was limited to two five-year terms. To qualify as President, one had to win 25% of votes cast in at least five provinces.
23. In 1991, Section 2A was repealed, and Kenya became a multi-party state. The voting age was lowered from 21 to 18 years.
24. In 1997, political parties were given the mandate to appoint nominated members of parliament.

The Kenya electoral commission commissioners were increased, and certain oppressive laws were amended or repealed, including:

• The Public Order Act
• The Chief’s Act
• The Preservation of Public Security Act
• The Vagrancy Act

Review Questions

1. a) Define the term ‘constitution’.
   b) Explain the advantages and disadvantages of a written constitution.
2. Outline the provisions of the independence constitution of Kenya.
3. Discuss the main constitutional amendments in Kenya since independence.
4. Identify the differences between written and unwritten constitutions.
5. What are the main features of the Kenya constitution?
6. Give reasons why a constitution is necessary in any country.

Students’ Activities

1. Describe the stages in constitution making in Kenya.
2. Discuss the factors that determine a country’s constitution.
3. Have a class debate on whether Kenya should have a Prime Minister with more powers than the President.