Constitutional Changes that Led to Independence

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By Jehoshaphat Sagero

Having celebrated Madaraka Day a few days ago, Kenya is clearly now self-governing and in some way free from the colonial rule. This status was achieved thanks to some causative factors. One of the elements is unquestionably constitutional changes. There were chief alterations seen, among them being incorporating the Africans and Asians in the Legislative council (LegCo.) just but to mention a few. To a degree, this was one of the major changes that realized independence to Kenya and in the long run earning the country republic status.

Natively, Kenyans never had a written constitution or formal system as the British like to call it. Kenyans pre-colonially were very organized and feuds were limited. Some to-die-for systems of governance that were appreciated in pre-colonial Kenya like among the Ameru people that had a council of elders called Njuri Ncheke and the Wanga Kingdom that was highly organized. However with the advent of colonialism in the 19th century and declaration of Kenya as a protectorate brought in the queen’s way of leadership. This, in a very aggressive way, upset the Kenyans. They could simply not understand why some white man could leave his land and come all the way to rule them and grab their land and take them as slaves. All these reminded them of the prophesies made by the prophets of the old like Koitalel Arap Samoei among the Nandi people and Mugo wa Kibiru among the Agikuyu people. Triggered, they started the quest to gain independence. They tried all the possible avenues, warfare and the intellectuals pursued the method many whites consider sober, moderate and dialogue. This moderate approach is what led to the changes in the constitution.

With the declaration of Kenya as a protectorate in 1895, Kenya fell under the express authority of the queen of England. Declaring a country as a protectorate meant that it was taken by Britain and no other country would take it. However, in 1897; the queen appointed a commissioner that would run the affairs of the protectorate like ensuring administration was properly upheld, he also had the sole power of making laws and establish institutions like courts. His power also enabled him to collect taxes, maintain law and order and get the African resistors arrested or executed. It is also important to note that any laws he made on justice and its administration had to be approved by the Secretary of State in London. He was one leader that held the most authority in the protectorate. He was only answerable to the Secretary of State in London and no one else especially in the protectorate, local officials to be precise.

In 1902, The East African Order in Council agreed that the protectorate would be divided into provinces and districts for administrative purposes. The East African Order in Council was formed in 1897 when there was still a vacuum in power in the protectorate. It is this council that led to the formation of the seat of the commissioner. In 1902, they gave the commissioner the powers to divide the protectorate into those smaller administrative units. He was also given the powers to appoint the leaders of specific dockets. He could sack and appoint at the comfort of his wish, he was not answerable to anybody in these appointments or sackings.

The commissioner’s leadership led to the opening up of the territory and letting in many and more Whites. The Europeans were getting many in the land and they all needed land to stay in and cultivate as well. The East Africa Order in Council of 1901 declared all public land as Crownland.

These ordinances among others were passed to encourage the European Settlers to come in. Even by being allowed to come into the territory, they started fighting for more rights. In 1902, Lord Delamere and Lord Grogan formed the Colonialists Association that wanted the commissioner’s powers to be increased and the Secretary of State’s powers to be reduced.

Of course, the aim of this move was just for their selfish desires, so that they could manipulate the commissioner who would later be known as governor, as they wanted. Fortunately, the Indians and the colonial officials declined those demands and it, therefore, goes without saying that at that time they did not get what they wanted. Those that were campaigning for the settler rights were just a few fellows that did not get the backing of any other people as the settlers were few, they were not united as they should and above all; the colonial officials over-numbered the settlers by far, so they would not pass whatever they wanted democratically.

In 1905, The East African Order in Council enacted another constitutional change. They changed the name of the commissioner to Governor and Commander-in-Chief. This change of title further increased and widened the powers with the title. To some extent, it made him a sort of dictator. He was responsible for appointing high court judges. This was a very big privilege, just to say.

The LegCo was established together with the Executive Council. The LegCo was made up of the Governor and other legislators that were appointed by the queen of England. It was now responsible for the making of laws. At this point, it must be said that at least here there was a check in the powers of the governor for the first time. Previously, the governor kept being pumped and pampered with more power. The governor was made the speaker of the LegCo and he had to make the standing orders and the required regulations. However, the powers of making laws were very much limited as any proposed law had to be sent to the Secretary of State in London to be vetted and referred back; whether approved or disapproved. This implies that the LegCo had not yet been fully trusted. It was formed for formality or just official purposes. The governor would still pass his laws without any consent from the LegCo. Maybe we could affirm that at this time the work of the LegCo if at all they had work was to advise the governor-it does not appear that they did anyway.

In 1905, the Executive Council was formed. The members of the executive council were to be appointed from among government officials. The work of the executive was primarily to advise the governor on issues concerning the protectorate and such leadership roles. They were the pioneers of the national assembly that we have now. They were also the cabinet at those times. All this time, it is hard to fail to notice that only the rights of the whites are being considered at all levels here and the native Kenyan has no say anywhere. Only Lord Delamere and other little settlers agitating for more rights like seeking elective positions into the LegCo.

This was in around 1919. In the same year, the government allowed them to be elected into the LegCo. Sadly, only European settlers were given this opportunity. The Africans and Asians were treated as second class citizens in all matters to do with legislation and leadership.

In 1920, Kenya was declared a colony, apart from the coastal strip that remained as part of the Zanzibar. Since choices have consequences, the changing of the status from protectorate to colony had its outcome: both legal and constitutional. The name would change from the East African protectorate to Colony and the Protectorate of Kenya.

The Asians wanted the same privileges as the Europeans settlers. This rubbed the white settlers the wrong way and further brought along rivalry. They demanded equal rights but of course, the Europeans were not willing to eat the humble pie and accept that they were equals with Asians. In response to the conflict between the two groups, the Colonial Government came up with what was dubbed the Devonshire White Paper of 1923. It is pleasing that the paper recognized that Kenya was an African Territory and that majority was African. However, their rights were not granted in as much as they were the majority. The provisions of the Devonshire White Paper of 1923 were: five Asians were to be elected to represent the Asian community in the LegCo, the Arabs were to be represented by one member, each community would have their voter register, voting was to be based on communal rolls and one ex-officio member to represent the interests of the African communities. The Asians would not approve of these provisions. In particular, they did not like the idea of communal rolls, they wanted a common roll. They presented their case to the Hilton Young Commission of 1928-1930. It is for this reason that they boycotted the LegCo for several years. The settlers were also out to fight for themselves, they wanted authority, superiority and above it all, they wanted power.

Africans were tired of being sidelined in everything; they began pushing for their rights. For example, the Kikuyu Central Association (KCA) demanded African representation. They also had land grievances, eradication of the Kipande system. In 1944, Eliud Wambu Mathu was nominated into the LegCo to represent the Africans interests, in 1946 the second African was nominated. This was Walter Odede. In the same 1946, the Africans formed their nationalistic party, The Kenya African Union (KAU) led by James Gichuru. The signs were good looking, in 1948, the number of Africans was raised to 4 and in 1952 it was raised to six. These representatives were not democratically elected like other communities, they were simply appointed by the colonial heads. This was not democratic. The representatives that were appointed in 1952 were representing the six regions or constituencies: Nairobi, Central, Coast, Rift Valley, South Nyanza and North Nyanza. In the early days of 1952, there were violent attacks by the MauMau against the white settlers and one of the most loyal chiefs, Waruhiu Kung’u of the white man was assassinated. On 20th October 1952, a state of emergency was declared in Kenya. Many African politicians like Jomo Kenyatta were arrested during the state of emergency.

In 1954, the Lyttelton Constitution was introduced. It was very considerate. It allowed all races to participate in the government. It entirely reorganized the system. A council of ministers was established, it has six official and six unofficial members (3 Europeans, 2 Asians and 1 African). B. A. Ohanga felt as good as he could, being; the first Kenyan to step in the cabinet. He was the first African minister for community development. All this happened to owe to the fact that the white man realized that the Mau Mau had risen due to the ignoring of African voices. Among the provisions of the Lyttelton Constitution is that Africans would be elected into the LegCo. The Africans were not happy about the restrictions. In 1957, the first elections for Africans took place and the six were elected: Tom Mboya from Nairobi, Masinde Muliro from North Nyanza, Oginga Odinga from Central Nyanza, Lawrence Ugunda from South Nyanza, Ronald Ngala from Coast, Daniel Arap Moi from Rift Valley, Bernard Mate from Central and James Maillu from Ukambani. The Africans still asked for more representation in the House.

In 1958, a new constitution was enacted, this was led by a man called Lennox Boyd hence the name. Its provisions included equalizing the number of Africans and Europeans in the LegCo, both sides of the divide had fourteen, increased the number of members of the council of ministers to sixteen, it also created a council of state whose work was to act as a watchdog and report any racial and segregative legislation. Still, the Africans clamoured for more. They now demanded a conference where they would just discuss their issues one by one until they were settled.

This was to discuss how the Africans would be properly represented and other issues like the imprisonment of African leaders. It was required that the Lancaster conference would not go on if the leaders had not been released from prison. After the first Lancaster house conference in 1960, the Macleod Constitution was born. It increased African membership to sixty-five. The LegCo would have 53 elected members, 20 seats would be kept for the minority of which 10 were for the Europeans, 8 for the Asians and 2 for the Arabs. The governor also would appoint his ministers: four Africans, three Europeans and one Asian. The bill of rights was also introduced. This was a major milestone. There were as well requirements that were passed to ensure someone was eligible to be elected like earning at least 75 pounds.

In 1960, two parties were formed the Kenya African National Union (KANU) and the Kenya African Democratic Union (KADU). KANU wanted a unitary system of government while KADU wanted a Federal (majimbo) system of governance.

After the second Lancaster House conference in 1962, there was an election and the majority of Africans won. On June 1, 1963, Kenya gained its self-governance constitution.

This was the road to the independence constitution.

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