Constitutional changes in Kenya between 1952-1963

My erstwhile professor at the University of Nairobi, H.W.O. Okoth-Ogendo (RIP) in his paper The Politics of Constitutional Change in Kenya Since Independence, 1963-69, notes that “constitutional systems in Anglophone Africa have not had a happy history, especially during the last decade.

Almost without exception the independence documents have ended up in military dustbins or have undergone change so profound and rapid as to alter their value content and significance beyond recognition. Scholars trained in the Westminster tradition, who tend to view constitutions simply as “a body of rules which define and limit governmental power and regulate major political activity in the state”, have explained this phenomenon primarily in terms of the inherent inability of Africans to run constitutional systems.”

In my view, Sir Philip Euen Mitchell, Governor of Kenya 1944-52, set the tone for the colony moving forward after World War11. From the earliest days of settlement, Europeans had been the dominant community with political power bearing no relation to numbers but enabling them to influence all aspects of the colony’s life in their favour. During World War 11, they had rendered invaluable service not only in the army but in running the various boards, which were needed to supply food for the Allied Forces in Africa, South East Asia and other needs of the army.

Their agriculture and commercial enterprises were the basis of the colony’s economy. These factors further increased their influence and sense of entitlement and when Mitchell arrived as governor, he found the Europeans aiming at a position of political dominance “entrenched in power by the terms of the constitution”.

Mitchell wrote in his diary; the European influence was such that “no Secretary of State would ever force a row with the settlers”. I hasten to add that more than 100,000 Kenyan African troops fought for the British in World War 11 in East Africa and South East Asia. African small-scale farmers also contributed a great deal in production of subsistence crops alongside the large scale European farmers during the war.

Mitchell saw the need for change in Kenya along the lines of a multiracial society that was governed by the European. However, the governor not being a dictator, was answerable to the Secretary of State in London and as Kenya was being developed on the model of British parliamentary lines, he had to work through an Executive and a Legislative Council.

European settlers were determined, as ever, in their demand for self-government on the Rhodesian pattern. Four previous decades of power and privilege had given them a “master race” mentality and, all too often, arrogance and rudeness characterised their relations with Africans.

In 1944, Eliud Mathu became the first African to be appointed to the Legislative Council (LEGCO). On the advice of Mitchell, the Kenya African Study Union (KASU) was formed as a colony-wide forum where the views of an educated African elite could be expressed and act as a body, which the sole African member of LEGCO could consult.

Harry Thuku was elected the first President of the body in 1944. However, it was not long before the more radical African members questioned the word “Study” asking “What do we have to study about our grievances?” Soon the word “Study” was dropped and the organisation became the Kenya African Union (KAU) in 1946 under the leadership of James Gichuru. Harry Thuku was accused of being a “quisling” and was dropped as president.

Until the declaration of a State of Emergency in 1952, KAU was the militant mouthpiece of African nationalist expression.

Despite Mitchell’s plans for the advancement of educated Africans within a framework of multiracialism, very few Africans in fact achieved any kind of influence in government or the economy. The status quo remained. KAU was proscribed during the Emergency and the British government instituted despicable measures including torture, detention and summary execution to quell the Mau Mau insurrection.

In a move intended to mollify the Africans amid the insurrection, the colonial government introduced the Lyttleton Constitution in 1954. Named after the then Colonial Secretary, Sir Lyttleton, it was Kenya’s first multiracial constitution and its key ingredients were: establish a 12-member Council of Ministers, six to be appointed by the governor, six to be elected, three Europeans, two Asians and one African.

B.A. Ohanga was appointed the first African minister, becoming Minister for Community Development and African Affairs in 1954. For the first time Africans were allowed to vote in 1957 for the unofficial members of LEGCO but many were locked out as only those over 40 years and with substantial assets and those who were educated and over 21 years qualified. These measures, still leaving Europeans with more representation than Africans in both bodies, pleased neither Africans nor the majority of settlers, who opposed any extension of African political rights.

The Lennox-Boyd Constitution was introduced in 1958 and its key ingredients were: increase the Council of Ministers to 16 members, half elected, and half appointed but Europeans were still in the majority, redistribution of land, release of political prisoners and repeal of repressive laws were not addressed. Demand for full independence under an African majority government was in the air.

Africans clamoured for a constitutional conference to negotiate for independence.

In 1960, the Macleod Constitution was introduced with its key ingredients being: provide for a majority of Africans in LEGCO (of 65 members) and Council of Ministers, provided for independence and alluded to internal self-government.

Finally, the Independence Constitution of 1963, which provided for a full bicameral parliament with 131 representatives and 41 senators, Cabinet headed by a Prime Minister. It was a federalist constitution, which divided the country into six regions.

So much for governor Mitchell’s dream of a multiracial society headed by a minority race.