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 principals and laws established to govern and regulate the behaviour 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 who are entrusted with the responsibility of managing the affairs of the state.

A constitution therefore 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 the way it behaves as it manages the country’s affairs. The constitution 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.

1. It protects the rights and freedoms of all citizens.

1. It limits the powers of rulers who would attempt to oppress their subjects. It also limits the possibilities of the subjects to insurbodinate the rulers. This is done by limiting some of their rights and freedoms.

1. A constitution enables a country to follow a well defined cause by spelling out the powers of the government. This helps to control national instability.

1. 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 also the powers and duties of the executive, the legislature and the judiciary.

1. A constitution offers the legal framework from which the country’s laws are made.

1. A constitution also reflects the wishes of the people and their social, cultural, economic and political aspects.

Characteristics of a good constitution

1. A good constitution must define and spell out clearly the structure of government and the functions and powers of each level and arm of government.

1. The fundamental rights and duties of all citizens must be clearly spelt out and the way the rights will be guaranteed specified.

1. Roles and powers of specific rulers such as Presidents and Prime Ministers must be stipulated.

1. The separation of powers of the Judiciary, the Legislature and the Executive must be very clear to avoid conflicts of roles.

1. 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 of them are democratic constitutions, others are undemocratic constitutions. There are also unitary or federal constitutions. We also have two other types of constitutions. These are written constitutions and unwritten constitutions.

Written constitutions

A written constitution is the one in which the basic principles and laws are written down and are therefore available in a formal document. Examples of the countries with written constitutions are 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 in order to study.

1. It is rigid and not easy to alter. Any amendment is made using a procedure that is usually slow and cumbersome.

1. A written constitution is usually simple, clear and consistent. A special body of experts is therefore given the responsibility of drafting it using a well formulated procedure.

1. It sets clearly the powers of the judiciary, the executive and the legislature in a particular state.

1. It spells out the fundamental rights and freedoms of the citizens. To ensure this is accomplished the draft constitution is taken to the legislature for approval.

1. In some written constitutions, rules are found in traditions. Some of them are based on conventions and customs of the people.

1. A written constitution is prepared in such a way that one can be able to 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 so as to favour particular personalities in power.

1. It becomes easy for the literates to know the expectations of the government because they can buy the official copies and read themselves. This is because it is readily available for reference and use.

1. No individual can alter or manipulate any part of the written constitution. The legislative body is the one which has a right of making even a minor amendment or alteration.

1. The legislators and delegates are able to incorporate the traditions, conventions and customs of the citizens into a written constitution which is people driven and which recognises people’s ethnic groupings.

1. A well written and acceptable constitution can play the role of uniting all the people in a nation.

1. A written constitution provides a smooth procedure of handing over power after general elections, death of rulers or resignation. This is because it provides a clear guideline of what should be done if such a thing happens.

1. A written constitution enables a country to operate in favourable and orderly manner.

1. A written constitution spells out the fundamental rights of citizens very clearly therefore making them aware of their rights and also making them have a reference when their rights are infringed.

Disadvantages of written constitution

1. It is too rigid to be easily altered without a lot of consultation.

1. Amending a written constitution is slow and cumbersome.

1. The language used to write the constitution volumes is difficult for people who have not learnt disciplines such as law. Yet it becomes difficult to simplify without altering the meaning and the stress.

1. If the constitution is not properly formulated, it can make various arms of the government to conflict.

1. For a good lasting written constitution, very qualified experts are required. These may not be available in some countries.

1. The constitution making process is costly and very involving if all the procedures are followed to the dot.

Unwritten constitution

An unwritten constitution is one which does not exist in a single formal official document. Britain is an example of a country with unwritten constitution. The sources of the British constitution are the Act of Parliament, British conventions, the Hansard, Legal publications by reputable authorities, decisions made by the 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 in order to cope with the prevailing situations.

1. It is not rigid. Therefore it can be altered without a lot of consultation.

1. This constitution is long lasting because it is native and therefore acceptable by the majority.

Disadvantages of unwritten constitution

1. Fundamental rights of citizens are not clearly spelt out in an unwritten constitution.

1. Unwritten constitution requires very qualified judges and lawyers of the law courts who are able to cope with the tedious work of referring to many constitutional documents e.g. statutes, historical documents and customs in order to make any judgement.

1. An unwritten constitution is not clearly expressed as compared to the written constitution.

The independence constitution

The first constitution in Kenya was established during the British colonial rule. This may be referred to as the colonial constitution. The colonial constitution discriminated against the Africans while it favoured the whites.

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

In 1960 and 1962, constitutional conferences were held in London. African representatives attended. The Lancaster House conference held in London in 1962 concluded the constitution for independent Kenya. The date for independence was also set. The constitution made is the one we are calling the independence constitution.

The conference was attended by representatives of the 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 in the structure of government they wanted.

KANU preferred a strong unitary constitution while KADU wanted a majimbo or Federal constitution. KADU was in favour of majimbo constitution because it feared that smaller communities would be dominated by large ones such as the Luo and the Kikuyu. KANU believed that a unitary government would protect the interests of the smaller communities.

The outcome of the 1962 conference was a federal form of constitution. This was 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. The country (Kenya) was therefore split into six regions each with its own regional government and assembly with full legislative powers.

There was a central government consisting of two chamber national assembly namely 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 as the head of state. She was represented by the Governor General whose duties were to approve legislation, to ensure there was internal security, to deal with all foreign affairs and to give assent to bills to become laws.

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

It also recommended formation of a Central Land Board for dealing with all issues concerning land and an independent public Service Commission for appointing, disciplining and firing civil servants.

The independence constitution recommended the setting up of an independent electoral commission for setting constitutional boundaries and conducting elections.

An electoral commission was established. It was 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 the decisions of judges and they enjoyed security of tenure.

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

The Kenya Constitution

Kenya is governed by a democratic constitution. A democratic constitution recognises and protects human rights for instance the right to acquire and own property, right to life and the rights safeguarding the individual’s freedom of expression, association, conscience, movement and assembly. It also recognises the 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 right to equal protection and equal benefit of the law. He has the right to a fair trial. According to the Kenya constitution, no person may be required to perform forced labour or be held in slavery.

Constitutional making process

Constitution making can take place in a number of ways as follows:

1. Having it done by Parliament whereby at least 65% of all parliamentary members must vote for a change to the Kenya constitution.

1. Using a constitutional review commission. This commission may be set up by the President or by Parliament.

1. Having a constitutional conference attended by selected people from various interests in society. They then make a draft constitution that can if necessary pass through a referendum.

1. Having a national convention composed of representatives from all walks of life who identify and discuss important national issues in order to prepare a constitution.

Constitutions are therefore made through established procedures that are 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 them to take part in the constitution making process. To begin with, they are made to understand what a constitution is and why it is necessary in any state. They are then enlightened on the shortcomings of the current constitutions and also its strength.

People are then requested to give their views on various aspects of the constitution. A commission is set to visit all the constituencies in Kenya to listen and record the views of the public.

All the views obtained from the constituencies of Kenya are compiled together. The wishes of the majority are isolated and used to prepare a draft constitution which is forwarded for further discussion.

2.  The recommendations are printed, published and circulated to the public. The commission once more visit the public to give their remarks. All the provinces are covered to ensure that the outcome reflects the will of the people.

3.  A national constitutional conference is organised and attended by delegates from each district in Kenya. The commission then submits the recommendations which are largely the opinions of the public for further discussion and careful scrutiny.

Some of the recommendations may be rejected. Other recommendations are accepted while some are amended. The National Constitution conference members may reject some recommendations and replace them with their own.

4.  Sometimes the National Constitutional Conference members are unable to reach a consensus concerning certain recommendations. If this happens the recommendations causing disagreement are referred back to the public to be resolved through a referendum which is organised by the Constitution of Kenya Review Commission. The referendum is conducted within two months.

5.  After this is done the draft constitution is forwarded to the National Assembly by the Attorney General after receiving it from the Commission. The draft constitution is treated as a bill and then published for discussion. Once it is recommended by the Members of Parliament after passing through all the stages a bill undergoes before becoming law, it is finally presented to the President for assent.

6.  Finally, the constitution is published in the Kenya Gazette and after this implementation begins.

Features of Kenya constitution

a)  The constitution is democratic

Due to the wishes and ambitions of the people since Kenya attained independence, the country has developed a democratic constitution based on the principles of separation of powers between the Judiciary, the Legislature and the Executive. This is aimed at reducing conflicts between the three arms of government. The arms of government are therefore required to work independently without excessive interference from each other.

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 in accordance with the constitution that acts as the supreme law that binds all authorities and individuals throughout the country.

However, the rule of the law emphasises on handling all legal matters in accordance with the Kenyan laws. Every individual suspects is supposed to be given an opportunity for self-defence before a competent court of law after being arrested. The prosecution is supposed to prove the defendant guilty within a specific period and until the victim is proved guilty beyond reasonable doubt, he should be presumed innocent.

c)  Recognition for and protection of individual human rights and freedom

The Kenya constitution accommodates this distinctive characteristic in order to preserve the dignity of individuals and communities, to promote the realisations of the potential of all the people and also to promote social justice. The rights and freedom of the individuals are contained in the Bill of Rights.

d)  A government must have relationship with the constitution

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

Constitutional amendments since independence

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

a)  In 1964, the independence (majimbo) constitution was abolished. Kenya became a republic with an executive President. The President was the head of state and government. The country adopted a republican constitution with a unitary system of government.

b)  In 1966, the two houses of parliament, that is the senate and the House of Representatives were abolished and replaced with a single chamber National Assembly (Parliament).

1. In 1966, a member who resigned from the party that sponsored him or her was required to seek fresh mandate from the electorate on the ticket of the new party. Also a member who missed eight consecutive parliamentary sittings or who served a prison sentence of over six months would automatically lose his seat.

d)  In 1966, for any constitutional amendment to be affected there had to be a ²/₃ majority of the members of Parliament.

e)  In 1966, the Public Security Act stated that people could be detained on public interest without trial. For example, a citizen who was considered to be a danger to state security was detained without trial.

f)  In 1966, it was declared that if the Presidency fell vacant, the Vice-President would take over and act as President for the remaining term of office. The President was given power to nominate 12 members of parliament.

g)  In 1968, the President was empowered to make changes on the administrative boundaries. In this case, the Parliament lost control over the changing of administrative boundaries.

h)  In 1968, voting age was lowered from 21 to 18 years. One could qualify to contest for Presidency at the age of 35 years. Before one could contest at the age of 40 years and above.

i)  In 1968, the presidential election was to be done directly by the people who qualified to vote.

j)  In 1968, If the presidency fell vacant, elections were to be held within 90 days. The Vice – President acted as President for a period not going beyond 90 days. The President was also given power to postpone elections when and if he or she found it necessary. He could also shorten the life of the Parliament.

k)  In 1975, the President was empowered to pardon election offenders enabling them to contest in future elections.

l)  In 1977, the Kenya Court of Appeal was established to replace the East African Court of Appeal.

m)  In 1978, Public officers who wanted to contest during parliamentary elections had to resign six months before election time.

1. In 1982, Kenya was changed from a de-facto one-party state to a de jure one-party state. This was done through the constitutional amendments which brought about the ‘Section 2A’. KANU was to be the only legal political party.

1. In 1982, the security tenure of office of the Attorney General and Controller Audit General was established.

1. In 1982, The office of the Chief Secretary and Head of Civil Service was established.

1. In 1987, The post of Chief Secretary was abolished and replaced by the office of the secretary to the cabinet. This occurred because the office of the Chief Secretary was too powerful.

1. In 1987, The President was empowered to dismiss government officers such as the Attorney General and the Controller and Audit General at will.

1. In 1988, The President was empowered to dismiss the High Court judges and the chairman of the Public Service Commission at will.

1. In 1988, The Police department was empowered to hold suspected criminals for a maximum of 14 days before presenting them to a court of law for hearing and trial.

1. In 1990, The tenure of office of the Attorney General, The Chairman of the Public Service Commission and the Controller and Audit General were guaranteed.

1. In 1990, The Presidency was limited to 2 five-year terms. For one to qualify as President he or she had to win 25% of the votes cast in at least 5 provinces of Kenya.

1. In 1991, The section 2A of the constitution was repealed and Kenya became a multi-party state. The voting age was lowered from 21 years to 18 years.

1. In 1997, Political parties were given the mandate to appoint nominated members of parliament.

The Kenya electoral commission commissioners were increased while certain oppressive laws were either amended or repealed. Such laws were:

i)  The public order act

1. The Chief’s Act

1. The Preservation of Public Security Act

1. 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 constitution.

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 the constitution making in Kenya.

1. Discuss the factors that determine a country’s constitution.

1. Have a class debate on whether Kenya should have a Prime Minister with more powers than that of the President or not.