Made In Kenya: A Constitution For The People, By The People

Kenya has received kudos for its new constitution, which came into force on 27 August last year after ratification by the people through a referendum on 4 August. A year on, the excitement has not died down. All agree that the constitution has provided the bedrock for a radical reshaping of the country. But what’s […]


Kenya has received kudos for its new constitution, which came into force on 27 August last year after ratification by the people through a referendum on 4 August. A year on, the excitement has not died down. All agree that the constitution has provided the bedrock for a radical reshaping of the country. But what’s in it that is creating all the fuss?

Reading Kenya’s new constitution brings to mind an event that must be recalled here in full, because of its sheer contrast to what has happened in Kenya.

In 1787, America’s Founding Fathers managed to draft a 7,000-word constitution for the country without mentioning democracy once, not even once, in the entire supreme document of the land – because they did not believe in democracy!

“In fact, they recognised that majority rule would quickly degenerate into mobocracy and then into tyranny,” explains the American writer, John F. McManus, in a November 2000 article for The New American magazine. “They had studied the history of both the Greek democracies and the Roman republic. They had a clear understanding of the relative freedom and stability that had characterised the latter, and of the strife and turmoil – quickly followed by despotism – that had characterised the former.”

So in drafting the constitution, “they created a government of law and not of men, a republic and not a democracy,” McManus further explains. Even the deliberations of the Constitutional Convention of 1787, held in Philadelphia, were held in strict secrecy. “Consequently, anxious citizens gathered outside Independence Hall when the proceedings ended in order to learn what had been produced behind closed doors.

“The answer was provided immediately,” says McManus. “A Mrs Powel of Philadelphia asked Benjamin Franklin [one of the Founding Fathers]: ‘Well, Doctor, what have we got, a republic or a monarchy?’ With no hesitation whatsoever, Franklin responded: ‘A republic, if you can keep it’.

“This exchange,” McManus says, “was recorded by Constitution signer, James McHenry, in a diary entry that was later reproduced in the 1906 American Historical Review. Yet in more recent years, Franklin has occasionally been misquoted as having said: ‘A democracy, if you can keep it’.”

This misquote, McManus insists, is a serious one, since the difference between a democracy and a republic is not merely a question of semantics but is fundamental.

“The word republic comes from the Latin res publica – which means simply ‘the public thing(s), or more simply ‘the law(s)’. Democracy, on the other hand, is derived from the Greek words demos and kraten, which translates to ‘the people to rule’. Democracy, therefore, has always been synonymous with majority rule.”

But because the early forms of democracy in the Greek city states had led to chaos, America’s Founding Fathers did not want to go that way, and steered clear of it.

“In the light of this,” McManus points out, “it is not surprising that the Constitution does not contain the word ‘democracy’, but does mandate ‘The United States shall guarantee to every State in this Union a republican form of government’.”

The American historians Charles and Mary Beard took up the matter in their book, America in Midpassage, published in 1939: “At no time,” they wrote, “at no place, in solemn convention assembled, through no chosen agents, had the American people officially proclaimed the United States to be a democracy. The Constitution did not contain the word or any word lending countenance to it, except possibly the mention of ‘We, the People’ in the Preamble… When the Constitution was framed, no respectable person called himself or herself a democrat.”

The Beards’ position was echoed in the 1950s by Clarence Manion, the dean of Notre Dame Law School, the oldest Roman Catholic law school in the USA, who wrote: “The honest and serious student of American history will recall that our Founding Fathers managed to write both the Declaration of Independence and the Constitution without using the term ‘democracy’ even once. No part of any of the existing State constitutions contains any reference to the word…” 

Today’s Kenya

Fast-forward to Kenya, in the year of our Lord 2010. A brand new constitution, born out of adversity – the convulsion that rocked the country in the wake of the December 2007 elections, itself a product, some say, of the bitter experiences of the country going back to the British colonial days and cemented by the complacency of the Jomo Kenyatta and Arap Moi post-independence eras – meant that the document, which came out of months of rigorous public debate, could not be anything other than based solidly on democracy.

So, unlike the American constitution, the Kenyans have no hesitation in using the dreaded word “democracy” right in the sixth of the eight-paragraph Preamble of their constitution. The Preamble itself is a work of art:

“We, the people of Kenya: Acknowledging the supremacy of the Almighty God of all creation; Honouring those who heroically struggled to bring freedom and justice to our land; Proud of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation; Respectful of the environment, which is our heritage, and determined to sustain it for the benefit of future generations; Committed to nurturing and protecting the wellbeing of the individual, the family, communities and the nation; Recognising the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law; Exercising our sovereign and inalienable right to determine the form of governance of our country and having participated fully in the making of this Constitution; Adopt, enact and give this Constitution to ourselves and to our future generations. God bless Kenya.” 

The only way is to go up!

As mentioned above, the American constitution was drafted in secrecy, and the deliberations of the Constitutional Convention were held in strict secrecy. In contrast, in 2010, the African people of Kenya, in a part of the world that sceptics think not much good can come from, stood with their chests proudly puffed out, and boldly declared: “We participated fully in the making of this constitution, we voted 66:34 in favour, so bless us God!”

When a people hit rock bottom, when things they could not imagine doing to each other had been done to each other, when neighbours take on neighbours with machetes, there is only one way to go after the “madness”: to learn bitter lessons, and say “never again”! And this is what the people of Kenya have done, with their new constitution.

The process itself goes back 20 years, when the first stirrings of the constitution were seen. President Daniel arap Moi was in power then, but though the country faced major challenges at the time, the political class felt no real urgency to push the process forward. All that changed when the chickens came home to roost on the back of the 2007-08 post-election violence!

“In a way, I think the violence was a wake-up call,” says Gichira Kibaara, the acting permanent secretary of the Ministry of Justice, National Cohesion and Constitutional Affairs, who perhaps knows more than most people about the Kenyan peace and reconciliation process, because in an earlier incarnation he was the liaison officer for President Kibaki’s PNU party attached to the AU Panel of Eminent Personalities chaired by Kofi Annan, which worked flat out to broker peace in the teeth of the violence.

Kibaara says before the violence, “there was a certain complacency about a Kenya that had always been seen as a country doing well, an example in Africa, a country that had not had military coups when most African countries had had several, a country that had enjoyed continuous peace for 40 years.

“So a certain complacency had developed when things were taken for granted, where national integration and cohesion was taken for granted, where electoral processes were taken for granted, where the judicial process was taken for granted; but now no more; the violence was a wake-up call in a very radical way, so the people actually started to listen.”

And the people have listened … and listened – to the extent that, three years on, Kibaara can say: “I am actually surprised, to be quite honest, at how many changes we have put in place within such a short time. Even when I travel abroad that is always the reaction, people say, ‘You guys, are you doing a revolution, how do you dismantle all the key institutions of government and replace them afresh within a very short period?’ ”

Kibaara’s view is shared by Duncan Okello, formerly a doyen of Kenya’s civil society, but appointed the chief of staff of the Judiciary in early October 2011. He says:

“It is unprecedented that a country that was plunged into civil war more or less, and has a coalition government for that matter, has been able to put together a new constitution within a year and a half, and a very progressive constitution to boot, with a very robust Bill of Rights.

“The delivery of that constitution has also challenged a lot of the political theory about coalition governments, and I was one of those sceptics [who said] that coalition governments tend to resort to the lowest common denominator.

“But what the delivery of the constitution has shown is that actually a coalition government can aspire to something beyond the lowest common denominator; and that is a big thing because the constitutional project has been on for the last 20 years.

“It is a big achievement, probably many people don’t see it that way, but for me it is a big achievement because the constitution confronts many entrenched interests, especially at a time when the two arms of the coalition were both feeling insecure. The courage to confront those interests was not easy to summon, and they did it. And that is a good thing!”

Summary of highlights

So how good is the constitution that
is causing all this excitement? As a taster, here is a brief selection of its many

■  All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.

■  No person may claim or exercise State authority except as authorised under this Constitution.

■  Any attempt to establish a government otherwise than compliance with this Constitution is unlawful.

■  The Republic of Kenya shall be a multiparty democratic State founded on the national values and principles of governance…


■  The electoral system shall comply with [among other points]: (a) not more than two-thirds of the members of elective public bodies shall be of the same gender; and, (b) there shall be fair representation of persons with disabilities.

■  Parliament shall enact legislation to provide for [among other points], the progressive registration of citizens residing outside Kenya, and the progressive realisation of their right to vote.

■  At every election, the Independent Electoral and Boundaries Commission shall ensure that [among other things]
the votes cast are counted, tabulated
and the results announced promptly by the presiding officer at each polling station.

■  Every political party shall have a national character as prescribed by an Act of Parliament; have a democratically-elected governing body; and promote and uphold national unity.


■  A candidate shall be declared elected as President if the candidate receives (a) more than half of the votes cast in the election; and (b) at least 25% of the votes cast in each of more than half of [the country’s] 47 counties.

■  If no candidate is elected, a fresh election shall be held within 30 days.

■  The candidate who receives the most votes in the fresh election shall be declared as President.

■  A person shall not hold office as President for more than two [5-year] terms.

■  Ministers shall now be called Secretaries [as in the British and US systems].


■  The Parliament of Kenya shall consist of the National Assembly and the Senate… There shall be freedom of speech and debate in Parliament.

■  No person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation.

■  The National Assembly shall consist

    of (a) 290 members, each elected bythe registered voters of single member constituencies; (b) 47 women, each elected by the registered voters of the counties, each county constituting a single member constituency; (c) 12 members nominated by parliamentary political parties according to the proportion of members of the National Assembly, to represent special interests including the youth, persons with disabilities, and workers.

■  The Senate shall consist of (a) 47 members each elected by the registered voters of the counties, each county constituting a single member constituency; (b) 16 women members who shall be nominated by political parties according to their proportion of members of the Senate; (c) 2 members, being one man and one woman, representing the youth; (d) 2 members, being one man and one woman, representing persons with disabilities.

■  A general election of members of Parliament shall be held on the second Tuesday in August in every fifth year.
The term of each House of Parliament expires on the date of the next general election.

■  The electorate have the right to recall the Member of Parliament representing their constituency before the end of the term of the relevant House of Parliament… Parliament shall enact legislation to provide for the grounds on which a member may be recalled and the procedure to be followed.

■  The official languages of Parliament shall be Kiswahili, English and Kenyan Sign Language; and the business of Parliament may be conducted in English, Kiswahili and Kenyan Sign Language.

For the one year that the constitution has been in force, the country has made a lot of progress implementing the provisions therein. There is a lot more to be done, but both the people and the political class are determined to prove wrong sceptics like Woodrow Wilson, who said in 1887, “it is getting harder to run a constitution than to frame one.”

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