CHAPTER 2

CONSTITUTIONAL FOUNDING OF THE KENYAN AND AFRICAN STATE

This Chapter may be cited as: Ben Sihanya (forthcoming 2023) “Constitutional Founding of the
Kenyan and African State,” in Ben Sihanya (2023) Constitutional Democracy, Regulatory and
Administrative Law in Kenya and Africa Vol. 1: Theory, Structure, Method and Systems, Sihanya
Mentoring & Sihanya Advocates, Nairobi & Siaya.

2.1 Background to Constitutional Founding of the Kenyan and African State

This Chapter 2 argues that the constitutional founding of the Kenyan and African State, and
incipient, extent, and future statehood or nationhood, based on three (3) variables. First,
constitutional or political negotiations that involved the quest for liberty, the struggle for
independence, the transfer of power in Kenya and Africa. Second, militancy, including conquest,
1
expeditions, massacres, assassinations, and even post-independence violence in Kenya and Africa.2
Third, an appropriate combination of constitutional negotiation and militancy or violence at
independence and in the post-independence period. The reconstruction of the Kenyan and African
state and nationhood have followed a similar trajectory in constitutional sociology, political
economy and cultural politics.

I adopt an Afro-Kenyanist theory, methodology and praxis on statehood as well as the three (3)
main components of nationhood and nation building. First, ethnic nationalism including positive
or moral ethnicity and negative tribalism. Second, civic or juridical nationalism. Third, progressive
territorial nationalism vis-à-vis retrogressive nationalism in transnational relations, law and
political economy.

All these problematize and contextualize ethnicity as real, invented and imagined.I thus argue that
Kenya African nationalism has three interrelated characteristics. First, real. Second, imagined. And
third, invented.3 We shall address these three concepts in thesubsequent section.

2.1.1. Nomenclature and Conceptualization of the Kenyan and African State

“Kenya,” got that name in 1920 when it became a British Colony and protectorate following
complex, economic, socio-cultural, political, technological, military, and juridical adventure,

1
For example, Koitalel arap Samoei, Councillor Ambrose Ofafa, Tom Mbotela, and numerous post independence
assassinations as instruments of capturing power and political seats as discussed in Chapter 2 etc. of CODARALKA 1
2
The violence and theme of motif trope underscores the formation theory and praxis of state formation and state in the
works of Karl Marx, Max Weber, Hans Kelsen, Yash Ghai, Ben Nwabueze, Issa Shivji and Ben Sihanya. See also
Chapter 1 of CODRALKA 1 on Conceptualizing People, Sovereignty, Constitution, State, government, Society and
Market in Kenya and Africa.
3
See also Chapters 1 on Conceptualising People, Sovereignty, Constitution, State, Government, Society, Market and
sustainable Development in Kenya and Africa; and Chapter 5 on Theory and Methodolgy of Comparative
Constitutional and Administrative Law in Kenya and Africa: Law and Sustainable Development in CODRALKA 1.
Page 1 of 71
misadventure, and related processes in statecraft and nation building.4

Thus, the Kenyan and African state is about four core variables or phenomena. First, it is primarily
about the people. What was the composition or diversity of the population in major transition
moments: 1895 (protectorate), 1920(colony and protectorate), 1963 (independence)? 1998? 2002?
2010? 2013? 2017? 2022? What was the population size and diversity in terms Africans, Whites,
Indians and Arabs5 on these dates, and in 1920, 1948, 1962, 1969? The Preamble lays the
foundation of the Constitution 2010 by declaring that it is about “We, the peopleof Kenya.” Article
1 also declares that sovereign power belongs to the people of Kenya and that the people may
exercise sovereignty directly or indirectly through (democratically elected)representatives.

Second, the Kenyan and African state is about certain or ascertainable territory, borders or
boundaries. Third, it is about a constitutionally democratic6 and effective government (Art. 5).7
Fourth, statehood implicates capacity to transact in international relations as stipulated under the
Constitution Articles 4(1) which states that Kenya is a sovereign republic. Article 2(5) and 2(6)
also provide for the inclusion of thegeneral rules of international law, and treaties and conventions,
ratified by Kenya, as applicable inKenya….8

Therefore, the Constitution is the core in (re)constituting Kenya historically in terms of law, rules,
principles, policies and norms this Chapter Therefore problematizes at least three (3) matters.
First, what is citizenship? What are the rights? Who are the people within Kenyan territory or boundary?
Kenyans beyond territory including the diaspora? Second,who are Kenyans and or Kenyan citizens
historically? Third, who can pass on Kenyan citizenship?

4
See laws declaring Kenya the East African Protectorate in 1895; and colony in 1920. ES Atieno Odhiambo (1995)
“The invention of Kenya,” In B.A. Okoth Ogendo, Decolonisation and Independence in Kenya, 1-3.
5
Relocate: Pre-school children sang, at independence: “*…Kenya, Kenya taifa letu…” Kanyaga nchi yako kwa nguvu
na raha, hili ni hakikisho la rais wetu, zamani tuliwekwa eti namba four…. Sasa abautani tuko namba wani.”… Maoni
ya jumla (2006) “Karibu Madaraka!” May 31, 2006, at https://msailimambo.wordpress.com/2006/05/31/siku-kuu-ya-
madaraka-i-hapa-tena/ (accessed February 22, 2021).
6
“Constitutionally democratic” is part of the Sihanya reconceptualisation of the constitution, state and government,
partly based on the Constitution of Kenya 2010, UN Charter, Universal Declaration on Human Rights (UDHR), as
well as United Nations (UN) and African Union (AU) instruments and popular understanding….
7
See Chapter 2 on the classical formal or (neo) liberal classification, what I call the Ghaian, Nwabuezean and Shivjian
typology, and Sihanyan reconceptualisation of the constitution, state, and government…; Also, Chapter 5 of this book
on Theory and Methodology of Comparative Constitutional and Administrative Law in Kenya and Africa: Law in
Sustainable Development. See Articles 51, 2(5), (6).and 4(1) which states that “Kenya is a Sovereign republic.”
….
8
This includes the exercise of external sovereignty that encompasses facilitating and protecting citizens abroad; when
they engage in international relations diplomacy, , consular relations…..cooperation, foreign policy……. See the
Montevideo Convention on the Rights and Duties of States, 1933; Vienna Convention on the Law of Treaties(VCLT)
1969, Vienna Convention on Consular relations (VCCR), 1963, Vienna Convention on Diplomatic Relations(VCDR),
1963. Arts 2(5) (6), 4(1) of the Constitution of Kenya, 2010 and Chapter 3 on Theory and Methodology of Comparative
Constitutional and Administrative Law in Kenya and Africa: Law and Sustainable Development.

Page 2 of 71
2.1.2. How did Kenya become the “East Africa Protectorate” then “ Kenya Colony and
Protectorate”?
“Kenya” was initially the “British East African Protectorate” from June 15, 1895 then Kenya
Colonyand Protectorate from 1920.9 The protectorate included the 16km (10 mile Coastal strip)
that was under the sovereignty of the Sultan of Zanzibar. United Kingdom (UK) constitutional
law, English regulatory and administrative law, and English understanding of the law of nations
(or international law) were applied in constructing the colony and protectorate. These included the
the East African Order-in-Council 1897 which would be amended over the years to the current
section 3 of the Judicature Act, 1967(as amended). Section 3 of the Judicature Act, 1967 states:10

“3(1) The jurisdiction of the Supreme Court, the Court of Appeal, the High Court, the Environment
and Land Court, the Employment and Labour Relations Court and of all subordinate courts shall
be exercised in conformity with— (a) the Constitution; (b) subject thereto, all other written laws,
including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act,
modified in accordance with Part II of that Schedule; (c) subject thereto and so far as those written
Lawlaws do not extend or apply, the substance of the common law, the doctrines of equity and the
statutes of general application in force in England on the 12th August, 1897, and the procedure and
practice observed in courts of justice in England at that date:”

Section 3 continues with a provision or limitation and exception clause:

“Provided that the said common law, doctrines of equity and statutes of general application shall
apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such
qualifications as those circumstances may render necessary; (2) The Supreme Court, the Court of
Appeal, the High Court, the Environment and Land Court, the Employment and Labour Relations
Court and all subordinate courts shall be guided by African customary law in civil cases in which
one or more of the parties is subject to it or affected by it, so far as it is applicable and is not
repugnant to justice and morality or inconsistent with any written law, and shall decide all such
cases according to substantial justice without undue regard to technicalities of procedure and
without undue delay.”11

9
See the Constitutional and legal instruments including East African-Order-in-Council, 1897 which evolved into
sections of the Judicature Act, 1967, Cap 8 on sources of constitutional law in Kenya; Independence Constitution of
Kenya 1963...what international law rules governed the Kenyan colony and protectorate status ? The Treaty of
Versailles 1919 granted
German Tanganyika territory to the British. The same way the British were partly influenced by natives in naming
Kenya. Nigeria was also given its name by Lord Frederick Lugard’s girlfriend (later wife), Dame Flora Shaw in 1898.
See also Chinua Achebe (2012) There was a Country: A Personal History ofBiafra, Penguin group, London, England;
African Today, Nigeria at 100: A Nation searching for its soul, Vol. 20, No04/05.
10
Yash P. Ghai & J.P.W.B. McAuslan (1970, 2001) Public Law and Political Change in Kenya, OUP, Nairobi; Robert
Seidman (1969) “The Reception of English Law in Colonial Africa revisited,” 2 E. Afr. L. Rev. 47…Progressive
aspects of the common law were not received in the colonies; and the best lawyers were retained in England…. See
also Yash Ghai (1986) “The Rule of law, Legitimacy, and Governance,” 14, International Journal of the Sociology of
Law, 179 ….
11
Section 3 of the Judicature Act, 1967 (as amended). Cf. Art. 2 of the Constitution of Kenya, 2010; s. 3 of the 1969
Constitution of Kenya…Clause 3A of the (Bomas) Draft Constitution of Kenya, 2004….
Page 3 of 71
 But what is a colony? Protectorate? Principality? Vessel State? Dominion? Suzerain? A colony is
a country or an area that isgoverned by people from another more powerful country. 12 It is where
a country is under full or partial political control of a foreign power and is occupied by settlers of
that power.13

Relatedly, a protectorate is a dependent territory that has been granted local autonomy while
retaining the protection of a greater sovereign state.14 What isa dominion? A vassal state? A
suzerain state?15

The Kenyan Colony comprised the inland territory.16 The protectorate comprised the 16
Kilometers or the ten(10) mile Coastal Strip which was under the sovereignty or control of the
Sultan of Zanzibar following treaties signed in 1886, 1895 and 1920. In 1920, “Protectorate” only
referred to the 16 km or 10 mile Coastal Strip. What was the “Kenyan” map as at 1895? 1902?
1920? 1926? 1963? How did “Kenya” acquire territory in these colonial years?17

Three major transitional and global processes have helped define Kenyan statehood and
nationhood. First, the scramble for Africa or the quest for spheres of influence in Africa through
the Berlin Conference of (1884/85).18 Second, the economic, political, and social-cultural, as well
as intellectual, ideological and political Cold War between the West and the East. Third, the post
Cold War dispensation marked by competition for influence in Kenya and Africa by the US, UK,
EU, China, Russia and Japan.19
The formal contact between Europe and Kenya in terms of administration began after the Berlin

12
Albert S. Hornsby (2010) Oxford Advanced Learner’s Dictionary, Oxford University Press…
13
How does a colony relate to a vassal state in the historical West African regions? E.g…. Vassal states are territories
within an empire or country while colonies were principally external territories.
14
See Douglas Kiereini (2018) “How Kenya was both a British protectorate and colony at the same time,” Business
Daily, Nairobi, 16/8/2018, at https://www.businessdailyafrica.com/lifestyle/society/Kenya-was-both-a-British-
protectorate-and-colony/3405664-4715590-hi6fw6/index.html (accessed 27/6/2019).
15
One definition is that a suzerain state is one having control over another state that is internally autonomous in state
formation and practice in East, West, Southern, and Central Africa.
16
Cf. The conquest state; the protectorate; the colony; dominion….constitutional development; Kenya under
colonialism: Constitutional contests on protectorate, colony… Rights and freedoms: life, liberty, land, labour, tax…
17
See Annex….
18
The Berlin Conference was convened under the initiative of Portugal, and chaired by Otto Von Bismarck… Some of
the countries that participated included Germany, Great Britain, Spain, France, Portugal, Belgium and Italy. The US
was invited and declined to attend and/or participate. African participation? What were the objectives? What did it
achieve? What dates? The conferences used pencil in drawing lines to carve out Africa from inaccurate maps…They
separated into tribes and clans…See WR Ochieng’…
19
Aggrey Mutambo (2019) “Russia follows old path in new scramble for a piece of the continent,” EastAfrican, October
19, 2019, at https://www.theeastafrican.co.ke/tea/news/east-africa/russia-follows-old-path-in-new-scramble- for-a-
piece-of-the-continent-1429664 (accessed February 11, 2021).

Page 4 of 71
Conference of 1884 that was convened by the German Chancellor Otto Von Bismarck.20 This
confirmed the quest for spheres of influence commonly referred to as the “Scramble for Africa.”21
At first, Britain used the Imperial British Eats Africa Company (IBEAC) or (IBEA) Co., a chartered
company,22 as the main instrument for penetrating East Africa and consolidating British power.23
IBEAC Co. was a commercial association founded to develop African trade in the areas controlled
by the British colonial power. This charter gave British subjects in the East African Protectorate
immunity from prosecution and further empowered the subjects to impose taxes including custom
duties, make treaties, and act as the administrators of justice as well as the effective overall
Government of the colony.24

There were problems with IBEA Co. especially inefficiency in business25 and incompetence in
political administration or constitutional governance.26

In 1895, it ,surrendered its management of the Sultan’s dominions.27 This paved way for the British
Government to take over. Britain declared (what would later become Kenya) an East African
Protectorate on June 15, 1895 with its headquarters in Mombasa. When were the headquarters
transferred to Machakos? It was later moved to Nairobi (or Enkare Nailobi). In 1899 after the
Kenya-Uganda Railway arrived in Nairobi?28 In 1920, the East African Protectorate was renamed
the Kenya Colony and Protectorate.

What were the incidents and consequences of declaration of protectorate and colony over Kenya?
The most far reaching consequences were three: law, land alienation, and imposition of taxes.

20
Henry Louis Gates, Jr. & Kwame Anthony Appiah (2010) “Encyclopedia of Africa,” Oxford University Press.
21
The British were interested in East and West Africa; Germans in South West Africa, French in West Africa., the
Portuguese in Angola and Mozambique. According to historian WR Ochieng, the imperial powers laid claim based
on an inaccurate map, and the land mass they were not sure about. The drew borders on an inaccurate map, using
pencils. That partly explains the location of some tribes in more than one territory, and the disproportionate sharing
of cross border resources like lakes, mountains, etc.
22
Chartered under ..... Sir William Mackinnon with its headquarters being established in Mombasa.
23
Germany used German East Africa Company (GEACo).
24
Roland Oliver (1951) “Some Factors in the British Occupation of East Africa, 1884-1894,” 15 (1) UgandaJournal,
49–64; Charles Okidi “background to Kenya’s framework on environmental law. .................. ” Bethwell A. Ogot & R.
S. Herring & D. W. Cohen (1979) “The construction of dominance: the strategies of selected Luo groups in Uganda
and Kenya,” in Ahmed Idhaa Salim (ed) (1984) State Formation in Eastern Africa, Heinemann, Nairobi, at 126-61,
selected papers from a Conference organised by the Department of History, University of Nairobi, held at Nakuru,
September 1979.
25
…. Trivedi, R. (1971) The role of Imperial British East Africa Company in the acquisition of East African Colonyin
the Second Half of the Nineteenth Century: Proceedings of the Indian History Congress, 33, 616-623, at
http://www.jstor.org/stable/44145417 (accessed June 18, 2021).
26
….PL. McDermott (1895) British East Africa, or IBEA: A History of the Formation and Work of the Imperial British
East Africa Company, Chapman and Hall….
27
Douglas Kiereini…….. ibid.
28
Cf. B.A. Ogot & Madara Ogot (2020) The History of Nairobi 1899-2012: From a Railway Camp and Supply Depot
to a World-Class African Metropolis, Anyange Press, Kisumu.

Page 5 of 71
 Taxes were imposed on the African population particularly the hut tax29 and poll tax.30 Colonial
land alienation,31 labour regulation,32 and trade regulation33 were introduced.

Colonialism also delineated international (or territorial) and internal borders 34 among African
peoples. The internal or intra-territorial borders established exclusive districts or zones.
Significantly, the borders prohibited or reduced migration among and within tribes, clusters, or
clans or regions. Mamdani refers to this as a tactic of divide and rule to preserve the authority of
the colonial powers while disenfranchising the minority (or local people). For instance, the Teso,
Pokot and Samia were divided by the Kenya-Uganda Railway, some in Kenya and others in
Ugandan territory. This also had led to increased border and inter-ethnic clashes since boundary
creation in the colonial times excluded Africans participation35.…..

2.2 Peopling Pre-colonial Kenya and Africa on the eve of Anglo-French and German
Colonialism
Before British (especially English), French, German, Portuguese and Spanish colonization, the
Kenyan and African land mass consisted of largely a cephalous or decentralized groups. 36 They
were heterogeneous internally and externally.37 Only a few groups like the Wanga of Western
Kenya had fairly centralized or cephalous administration or governments in the form of chiefs.38

29
Attiya Waris (2007) “Taxation Without principles: A historical Analysis of the Kenyan taxation system,” Kenya
Law Review….
30
See Y.P. Ghai & J.P.W.B. McAuslan (1970, 2001) Public Law and Political Change in Kenya, OUP, Nairobi at 50-
52. Cf. definition or conceptualization of state: effective government and capacity in transnational transactions; See
also Ministry of East African Community and Regional Development, “History of Kenya,” at
http://meac.go.ke/history-of-kenya/# (accessed 27/6/2019).
31
…..See Butt, PL. (1990) “Colonial Boundaries and Modern African Countries,” in Jackson Hudman (ed) World
Geography issues for Today, New York: Wiley Publishers.
32
…..See Anderson M. David (2000) “Master and servant New York in colonial Kenya,” Journal of African History,
459-485.
33
…. John Mbaku M. and Mwangi S. Kimeny (1995) “Rent seeking and policing in colonial Africa,” Vol. 8, Issue 3,
The Indian Journal of Social Science, 277-306.
34
See Bethwell Allan Ogot (2009) A History of the Luo-Speaking Peoples of Eastern Africa, Anyange Press.
35
Mahmood Mamdani (1983) “Karamoja: Colonial roots of famine in north east Uganda,” 48 Review of African
Political Economy, 176-192.
36 See Annex…on map of Africa. European colonial territories…and dates of independence….
37
See John Lonsdale (1989) “The conquest state of Kenya,” in WR Ochieng’ (ed) A Modern History of Kenya; John
Lonsdale, ibid, in E.S. Atieno Odhiambo & John Lonsdale (eds) (2003) Mau Mau and Nationalism: Authority, Arms,
and Narration, James Currey, Oxford, EAEP, Nairobi, Ohio UP, Athens.
38
Cf. British invention of (paramount) chiefs in Kenya, Uganda Nigeria, Ghana, and other West, Southern, Central
African States were legally different as they had Kingdoms like Mali, Songhai, Oyo, Asante, Buganda, Bunyoro-
Kitara, Toro...
Page 6 of 71
 The British were a centralized Government especially following the Norman Conquest of 1066.39
They applied the “dual mandate”40 or “indirect rule”41 due to pragmatism and as a condescending
attitudeto Kenyans, Nigerians, Ghanians, Ugandans and the relevant Africans. This version of local
or home rule was neither decentralized nor autochthonous.

The British did at least three (3) things on centralisation that they were familiar with. First, the
British exaggerated centralization where Kenya and Africa it was limited as among the Wanga.42
Second, the Britishused the Wanga, Baganda, Nubians and other tribes, clusters or clans to conquer
or to lord it over other tribes like Luo and Acholi, respectively.43 Third, the British constructed
chiefdoms (or ruothdoms)44 and kingdoms where none existed, as among the Luo Igbo of
Nigeria.45

Remarkably, the following African states consisted of cephalous and acephalous communities as
indicated: Nigeria,46 Ghana,47 Uganda,48 Tanzania,49 the Democratic Republic of the Congo
(DRC),50 Cameroon,51 Zimbabwe,52 and South Africa.53

39 Christopher Daniell (2003) From Norman Conquest to Magna Carta….., London Publishers, UK; David Bates
(1982)
Normandy Before 1066, Longman Publishers, London, 122-123.
40
…. Albert Cooke (1934) “The Dual Mandate in British East Africa,” 3(2), Pacific Historical Review, 130-141.
41
….Adria Lawrence (2016) “Colonial approaches to governance in the periphery: Direct and indirect rule in French
Algeria,” prepared for “Colonial Encounters and Divergent Development Trajectories in the Mediterranean,” Harvard
University December 1, 2016, at https://ces.fas.harvard.edu/uploads/files/Event-
Papers/LawrenceColonialDec2016.pdf (accessed June 18, 2021).
42
… Godwin Rapando Murunga (1998) “The evolution of Mumias settlement into an urban centre to circa 1940,”
Geography, at https://dumas.ccsd.cnrs.fr/dumas-01302363/document (accessed February 16, 2021).
43
Bethwell Allan Ogot (2009) A History of the Luo-Speaking Peoples of Eastern Africa, Anyange Press, Kisumu?
…. See Annex…. on map of pre-colonial Kenyan tribes…and post colonial Kenyan tribes….
44
See William R. Ochieng, (1976) “The transformation of a Bantu settlement into a Luo ruothdom. A case study of
the evolution of the Yimbo community in Nyanza up to AD I900,” 6 Hadith, 44-64; William Robert Ochieng(1975) A
History of the Kadimo Chiefdom of Yimbo in Western Kenya, No. 2. East African Literature Bureau. The Luo
introduced centralized authority or government in Bunyoro-Kitara kingdom in Uganda. Then remained acephalous in
Kenya until the introduction of colonial rule…. See….
45
See Toyin Falola and E.S. Atieno Odhiambo (eds) (2002) The Challenges of History and Leadership in Africa: the
Essays of Bethwell Alan Ogot, Africa World Press, Trenton, New Jersey & Asmara; Chinua Achebe (2012) There was
Country: A Personal History of Biafra, Penguin Books, New York, ibid.
46
Prof Kenneth Dike ; JC Anene (2009) “Southern Nigeria in Transition, 1885-1906,” in Theory and Practice
in a Colonial Protectorate, Cambridge University Press. The Igbo nation in West Africa is regarded to be acephalous
and some regard it and other African tribes as egalitarian society, in some phases of their history…???.
47
cf Prof Adu Boahen, J.A. Ajayi, & Michael Tidy (1966) Topics in West African
History, Longman Publishers, London....etc….
48
Cf. Buganda Kingdom…
49
Tanzania includes the Mainland (Tanganyika) and the islands of Zanzibar and Pemba.
50
The Kingdom of Kongo, Kingdom of Ndongo...
51
The Kingdom of Bamum, Hausa, Fula and Baka....
52
(Southern) Rhodesia up to independence in 1980.
53
The three major tribes are the Zulu, Xhosa and Sotho.....
Page 7 of 71
All Kenyan and African communities54 had forms of economic, political and social cultural as well
as, technological55 organization that were closely related to the ecology,56 the climate and the
organization of their neighbours. Thus the following Kenyan tribes largely practised the economic
activities indicated after their names: Kikuyu (farmers); Kamba (long distance traders); Luhya
(farmers); Luo (agriculture, fisher folk); Kalenjin (pastoralists), Meru (farmers); Kisii (farmers),
Miji Kenda and Coastals generally (traders, agriculture and craft), and the Maasai, Turkana,
Samburu and Somali (pastoralists).57

The various forms of leadership, administration or management and governance were organized
around age sets, special skills, talents, or gifts, and related to the relevant economic, political, social
and cultural activities.58 For instance, there were economic, political and cultural, religious or
spiritual leaders before colonial intervention.59

2.3 Imposition of Colonial Law and Administration in Kenya and Africa60

In about 1884 during the Berlin Conference, Britain faced the question whether it could exercise
sovereign authority, and especially impose or apply its laws,61 annex territory, alienate land and
impose taxes ina protectorate that was only possible in a colony according to the extent of law of
British and international law.
The imperial powers used a map, pencil and rulers to partition and establish their spheres of

54
Annex …. on list of the 42 (43? 45?), 75? 109? Kenyan tribes and sub-tribes…75? or 109? includes subtribes, e.g.
among the Luhya, Kalenjin, Miji Kenda (9 tribes), among others…..Debate on statelessness, citizen and tribe status.
Indians? Asians? Makonde, Shona? Nubians?.Asians? Also on composition of the population: men, women, youth,
elderly;citizens, foreigners….
55
See Annex…. on technological map of Kenya-historical and contemporary…
56
The ecology includes and included the natural resource base such as land, water, flora, and fauna ... cf. Charles O.
Okidi (2008) “Concept, function and structure of environmental law,” in C.O. Okidi, P. Kameri-Mbote, Migai Akech
(eds) Environmental Governance in Kenya: Implementing the Framework Law East African Educational Publishers
Ltd, Nairobi; Wilfred Nangena (2008) “Economic issues for environmental and resource management in Kenya,” in
CO Okidi, et al. (eds) Environmental Governance in Kenya: Implementing the Framework Law, East African
Educational Publishers Ltd, Nairobi; HWO Okoth-Ogendo (2008) “Managing the agrarian sector for environmental
sustainability,” C.O. Okidi, et al (eds.) Environmental Governance in Kenya: Implementing the Framework Law East
African Educational Publishers Ltd, Nairobi, 222-234.
57
On the economic, political, and cultural as well technological organization of Kenyan tribes, East Africa and Africa
historically, see William Ochieng & Robert Maxon (Eds.) (1992) An Economic History of Kenya, East African
Educational Publishers; Robert Maxon, An Economic History of Africa, XVI, 460; William Robert Ochieng (ed)
(1990) Themes in Kenyan History, Ohio University Press, Ohio, United States….
58
Cf. village elders including jodong gweng’ (Luo), Kiama (Kikuyu), Njuri Ncheke (Meru); specialities including
spiritual and political or administrative leadership like Orkoiyot Nandi….; youth groups such as Maasai morans,
women groups,…..
59
The religious or spiritual and other cultural leaders included medicine men and magicians, diviners, seers, etc. e.g.
Orkoiyot of the Nandi…..See David Anderson & D. Johnson (eds) (1995) Revealing Prophets: Prophecy in Eastern
African History,Journal of Religion in Africa, Vol. 26(1). This work was reviewed by Richard Gray in 1996; John S.
Mbiti (1991) Introduction to African Religion, Waveland Press, Illinois; John S. Mbiti (1969) African Religions and
Philosophy, Heinemann Educational Publishers, New Hampshire….
60
[Details in 1st paras to be relocated]…. (?)
61
See sec. 3 of the
Page 8 of 71
 influences over the African territory. The territorial before colonial intervention were thus
arbitrary; the spilt of territories and natural resources into different territories and some borders
became long straight lines.
The extant imperial law was that Britain could only have such jurisdiction in colonies. 62 But what
were the differences in African and international law among protectorate, dominion and colony?63
There had been similar situations in Africa64 before Europe invaded.

Sovereignty is related to subjecting the people to English law; annexing or alienating their land;
and imposing tax on the people.65

However, the pre 1890 position was revised to the effect that the British monarch could exercise
sovereignty whether in a colony, dominion or protectorate.66 There are three main issues on the
imposition of colonial law in Kenya and Africa. First, what factors weakened Kenyan and African
tribes and (generally) predisposed them for colonization? Should all Kenyan African ancestors be
blamed for allowing or suffering colonialism?67
There were natural disasters, civil wars, clan or succession and transition disputes. For instance,
the Maasai, the century “Lords of East Africa,” were weakened from the last quarter of the 19 th
century by droughts and disease which decimated their cattle which were their main socio-
economic and cultural source of livelihood and infrastructure. There were also inter-clan wars
among the Purko, Kisongo, Ilaikipiak, Kwavi and other clans; and the succession disputes between
Lenana and Sendeyo, among others.68

62
….See Leigh A. Gardner (2012) Taxing Colonial Africa: The Political Economy of British Imperialism, Oxford
University Press.
63
Okoth Ogendo (1991) Tenants of the Crown, African Centre for Technology Studies, ACTS Press; Okoth Ogendo
(1979) “The imposition of property law in Kenya,” in Harrel Bond (eds)(1979) The Imposition of Law, Academic
Press, New York, ibid, 147.
64
See, for instance, the practice among powerful Kingdoms in East Africa (especially Uganda), West, South and
Central Africa….. See… James T. Gathii (2006) “Imperialism, colonialism, and international law,” Buff. L. Rev. 54,
1013.
65
Cf. Chapters 2, 3, and Chapter 4 of CODRALKA 1, debates on popular; state sovereignty; external and internal
sovereignty. The ICC debates between 2013 to 2021; the Peter Munya case (County Government of Meru & Another
v. District Land Adjudication and Settlement Officer Tigania East Sub-County & 18 Others [2018] eKLR)…By
sovereignty here we mean, that right and power that a governing body in a state or county has over its polity without
influence by external powers. It is the right to self and or internal government.
66
HWO Okoth-Ogendo (1991) Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya, ACTS
Press, African Centre for Technology Studies, Nairobi; Yash P. Ghai & J.P.W.B. McAuslan (1970) Public Law and
Political Change in Kenya, OUP, Nairobi (reprinted in 2001 with a preface)….
67
See poet Charles Ford Khaminwa (1976) “A Letter to Leopold Sedar Senghor,” in Jonathan Kariara and Ellen
Kitonga (eds) An Introduction to East African Poetry, Oxford University Press, Nairobi… See Senghorian
Negritude… Wole Soyinka on Negritude and post colonialism… Wole Soyinka (2002) “Senghor: Lessons in power,”
33(4) Research in African Literatures, 1-2. Cf. Ali A. Mazrui (1990) “On Poet-Presidents and Philosopher- Kings,”
Vol. 21, No. 2, Research in African Literatures, 13-19.
68
See ….in David M. Anderson and Douglas H. Johnson (eds) (1995) Revealing Prophets: Prophecy in Eastern
African History, Ohio University Press, Ohio, US. Most western history books made the “arrogant claim” that they
discovered. Discover? East African tribes had lived near the lake and even named it Lake Sango or Lolwe.
Page 9 of 71
Second, how was colonial law imposed? internalized and adapted?69 Pre-colonialism, the local
communities applied customary laws and African traditional dispute resolution mechanisms (TDR),
including warning, compensation, banishment from a community for serious crimes like murder,
manslaughter, and witchcraft. With colonialism, the colonial laws were initially transplanted into
the Africancontinent without the participation of the local communities.

The effect was that colonial laws largely reflected and protected British interests, and were alien
to the local and unique contexts of the African people. The British also largely used local askaris
(police) to “pacify”, infiltrate, spy on and divide the local communities.

Ghai and McAuslan argued that:

“From the African point of view the English law introduced into East Africa was one of the main
weapons for colonial domination, and in several important fields remained so for most of the
colonial period, only changing when Africans began to gain political power. The role of the
received law from the beginning of the colonial period in Kenya was to be a tool at the disposal of
the dominant political and economic groups.”70

This showed that colonial law was greatly adopted by the British as a tool for to entrench colonial
domination in Kenya and Africa as opposed to a framework for the resolution of disputes.

Third, what were the strengths and allure of the colonizing British, French and German civilisation
or culture law, education, religion, clothes Education provided opportunity to read, write and tackle
arithmetic. It led to religious clerical vocational jobs.

What did colonial Christianity teach?71 Colonial Christianity taught submission to divine British
and civil authorities. It taught ascetism and capitalism; “happy are those who are poor, you will
inherit the Kingdom of God.72” The Bible was selectively read and used as the Whiteman’s
wisdom).72 Yet Christianity as preached by missionaries had some liberating aspects, for instance
validation of Osu untouchables among the Igbo.73

69
See H.W.O Okoth Ogendo (1979) “The imposition of property law in Kenya,” in Harrel Bond (ed) The Imposition
of Law, Academic Press, New York, op. cit., 147…….
70
Yash P. Ghai & JPWB Mcauslan (1970) Public Law and Political Change In Kenya: A Study of the Legal
Framework of Government from Colonial times to the Present, Oxford University Press, Nairobi.
71
ES Atieno Odhiambo (1974) “The movement of ideas: A case study of intellectual responses to colonialism among
the Liganua peasants,” 6, Hadith, 165-85.
72
Cf. Max Weber, The Protestant Ethic and the Spirit (or Rise) of Capitalism, Routledge.….
73
Cf John S. Mbiti (1991) Introduction to African Religion, Waveland Press, Illinois. Africans are and were
“notoriously “religious”……Religion was holistic and integrated into life. Traditional African Religion, African
Traditional Society (ATS) had no evangelists, nor reformers…. Chinua Achebe writes of the osu untouchables who
could not marry, for instance, the nurse Elara in Chinua Achebe (1961) Vol. 3, No Longer at Ease, East African
Publishers.
Page 10 of 71
 In such a context, poet Charles Khaminwa criticizes the former Senegalese poet President Leopold
Sedar Senghor for romanticizing African history, traditions and memory. Senghor was pro-French,
politically and culturally, hence “near white accents….” Khaminwa writes:

“Do not remind me of things that are gone/Nor of the spendour that was in yesteryears;
Do not sing of my mother’s laughters/Nor of the sensual songs resounding through their tears;

Do not dream of the ancestral hearth/Nor of the piety of communicating ancients;

Do not wake the dead from their wakeful slumber/In the earth,
Nor delve into the base of glories gone/But look to the unmended rafters of our bondage being.
What does Poet Charles Khaminwa recommend?

Let Shaka alone,/And let Sundiata be,

And Samori/And Sumanguru;
Do not utter their immortal names,/For their greatness my enslavements shames;
And what about retort to Afro racist romantincism? The “black is beautiful” ?

Do not proclaim your blackness,/For who shall hear your near white accents?
Sing not of the beauty of the sons of Ham,/For this much I know, none can my pride harm

But tell me how to do,/Tell me how to be

Tell me how to become,/Dance to us with your actions,
And sing to us with your actions/That, seeing, we may blend
The noumenal/With the phenomenal”74

Charles Khaminwa seeks action-oriented reform, not empty philosophical sayings.

Until 1895 when the power of administration over the modern day Uganda was transferred to the
Foreign Office, IBEA Co. still administered the Uganda Protectorate. The British agents signed
treaties in the East African protectorate to consolidate their control. For instance, the 1891
agreement with King Mwanga of Buganda Kingdom which placed the Buganda Kingdom under
British control.,75

2.4 Kenyan Territory and External Borders76

What are the constitutional and legal frameworks on the territory of Kenya and its external borders,
and related debates?

Article 5 of the Constitution of Kenya 2010 states:

74
See Charles Khaminwa (1976) in “A Letter to Leopold Sedar Senghor,” op. cit….; cf. Okot p’Bitek Song of Lawino,
Song of Ocol…on African scholars…cf. Ali A. Mazrui (1990) “On Poet-Presidents and Philosopher-Kings,” Vol. 21,
No. 2, Research in African Literatures, 13-19, op. cit.
75
Ibid. What “treaties” did British agents sign in the East African Protectorate? What treaties did German agents sign
with African “chiefs” and leaders in Tanganyika? What was the role of Karl Peters? How did the German East Africa
Co. (GEACo) perform in Tanganyika? What was the Maji Maji (1904-07) war of national liberation about? Who were
its leaders? Cite constitutional and political historians and poets.
76
Annex…on “Kenyan” borders…1884 to 2021….
Page 11 of 71
 “Kenya consists of the territory and territorial waters comprising Kenya on the effective date-
[27/8/2010], and any additional territory and territorial waters as defined by an Act of Parliament.”77

Kenya borders Tanzania to the south, Uganda to the west. How was Kenya constituted territorially,
in terms of its land mass, water, frontiers, and international borders and boundaries generally?
How have boundary disputes with Kenya’s neighbours helped constitute Kenya territorially,
normatively and demographically?78

2.4.1 The Uganda and Kenya Railway: “The Lunatic Express” 1896-190179
Britain embarked on building the Uganda Railway from Mombasa in 1896 as a means of securing
control over the Suez Canal80 through the device of controlling the source of the Nile (believed to
be in Uganda).

The railway reached Enkare Nailobi (in Maasai) in 1899. The construction paused before
embarking on the difficult terrain including the escarpment. The railway later reached Port
Florence (Kisumu) in Uganda Protectorate in 1901. What was the political economy and debates
around the constructionof the railway line to Kisumu vis-à-vis the ship-line to Uganda?

2.4.2 The Kenya–Uganda Border and the Constitutional Construction of Kenya

Administering the railway was expensive and inconvenient given that it was under two different
protectorates at a time of limited administrative cooperation and communication. Moreover,
British tax payers were keen that the railway pays for itself.82

In 1902, the border between the Uganda Protectorate and East African Protectorate was moved
westwards to where it is today in order to place the railway under one administration and thereby
secure economic and political efficiency.

77
Cf. … schedules to the Constitution of Kenya 1969; Constitution of Kenya; Montevideo Convention on the Rights
and Duties of States, 1933; UN Convention on the Law of the Sea (UNCLOS), 1982, on Maritime borders…
78
Some of the boundary disputes relate to the (South) Sudan (Ilemi Triangle), Ethiopia, Uganda (up to Rift Valley,
1976; Migingo in L. Victoria ; and Somalia…”The dispute arose from the 1914 treaty in which a straight parallel line
was used to divide territories that were both part of the British Empire.”…. Kenya has de facto control.
79
Cf. Standard Gauge Railway (SGR), Rift Valley Railways (RVR). SGR… (MGR) and China debates in 2013-2019.
i.e. Ethiopia….. David Ndii (2014) “Here’s how to give Kenyan value for cash,” Daily Nation, Nairobi, April 4, 2014,
at https://www.nation.co.ke/oped/opinion/440808-2270984-2qmhls/index.html (accessed 13/2/2020); Dr David Ndii
(2014) “New railway is not value for money,” Daily Nation, Nairobi, February 14 2014, at
https://www.nation.co.ke/oped/opinion/New-railway-is-not-value-for-money-/440808-2207034-13re56w/index.html
(accessed 13/2/2020).
80
Controlling the Suez Canal was crucial to the British and Europeans.
81
Speke and Grant were “the first Europeans to see the source of the Nile” in 1856. That is related to the interests in
Uganda, and later East African Protectorate (Kenya). B.A. Ogot & W.R Ochieng (eds) (1995, 1996) Decolonisation
and Independence in Kenya, 1940-93, James Currey, London, EAEP, Nairobi, & Ohio UP, Athens.
82
…Roger Fanworth (2021) “The Uganda Railway: The Gilded years 1924-1928,” at
https://rogerfarnworth.com/category/railways-blog/uganda-and-kenya-railways/ (accessed February 16, 2021).
Page 12 of 71
This partly explains the Kenya-Uganda dispute between Jomo Kenyatta and Uganda President Idi
Amin in 1976.83 President Idi Amin had claimed that what was formerly known as the Western and
Nyanza (Provinces) in their entirety and some parts of the Rift Valley all the way up to Naivasha
and Lake Turkana (then Lake Rudolf) were initially Ugandan territory. It was argued that the
territory had been transferred to Kenya in an agreement signed by the British (colonial) secretary
Herbert Asquith,for purposes of administration.84

The dispute between Kenyatta 1 and Amin was also fuelled by the holding of Israeli as hostages
by Palestinian militia in Entebbe. Kenyatta through the then Attorney-General, Charles Njonjo and
the then Minister of Agriculture Bruce Mackenzie had allowed the Israeli rescuers to overfly
Kenya to Entebbe and also to Jomo Kenyatta International Airport, Nairobi to refuel….85

In the post 2010s period, Museveni made a claim on Migingo Island in Lake Victoria.86 This issue
simmered over the years with a lot of suffering for the Kenyans in that island. 87 Yet the colonial
records in Kampala, Nairobi and London are clear that Migingo is Kenya.

Moreover, Uganda can only dispute colonial borders through the United Nations or at the
International Court of Justice (ICJ). Kenyatta through military intervention, sabre rattling, or
politicalrhetoric from President Yoweri Museveni. Did this border problem simmer for so long
because ofinternal ethnic orientation, government, and administration of the Kenyan state whereby
Presidents Mwai Kibaki and President Uhuru Kenyatta 2 and William Ruto did not stopMuseveni’s
aggressive expansionism against the Luo community?

83
Daily Nation (2011) “When Kenya nearly went to war with Uganda,” Daily Nation, 22/10/2011, Nairobi, at
https://nation.africa/kenya/life-and-style/lifestyle/when-kenya-nearly-went-to-war-with-uganda-
787614?view=htmlamp (accessed October 7, 2020); Fred Oluoch (2013) “Kenya. Uganda on brink of war,” Daily
Nation, 8/9/2013, at https://nation.africa/kenya/life-and-style/dn2/kenya-uganda-on-brink-of-war-
892130?view=htmlamp (accessed October 8, 2020).
84
Idi Amin argued that some parts of Uganda had been transferred to Kenya in an agreement in 1902, and to Sudana
in an agreement signed in 1914. “God was not a fool to have allocated this land to Uganda,”…cf. Wafula Okumu
(2010) “Resources and border disputes in Eastern Africa,” Journal of Eastern African Studies… 85 Daily Nation
(2019) “Kenyan fishermen say they suffer in the hands of Ugandan soldiers,” Daily Nation, 12/8/2019,at
https://www.theeastafrican.co.ke/tea/news/east-africa/kenyan-fishermen-say-they-suffer-in-the-hands-of-ugandan-
soldiers-1424820?view=htmlamp (accessed October 7, 2020).
86
Response by Kenyatta II...Raila...According to Article 1 of the Montevideo Convention (1933), the state as a person
andthemainsubjectofof international law should possess the following qualifications: (a) a permanent population; (b) a defined
territory;
(c) government; and (d) capacity to enter into relations with the other states. See Chapters 1, 3, and 4 of revised
teaching notes and research materials on Constitutional Law and Comparative Constitutional Law by Ben Sihanya
2004-2022, Sihanya Mentoring and Sihanya Advocates; Ben Sihanya (forthcoming 2022) “Typology of Constitutions,
States and Governments in Kenya and Africa: Sovereignty, Constitutional Democracy and Revolutions in S. Africa,
Nigeria, Egypt, USA, UK and Germany,” forthcoming as chapter 3 and 4 in Ben Sihanya (forthcoming 2021)
Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol. 1: Theory, Structure, Method
and Systems…
87
Robert Omollo (2020) “Fisherfolk suffer as Lake Victoria water level rises,” Star, May 28, 2020, Nairobi, at
https://www.the-star.co.ke/news/big-read/2020-05-28-fisherfolk-suffer-as-lake-victoria-water-level-rises/ (accessed
February 12, 2021)
Page 13 of 71
2.5 The 16 km Coastal Strip of Kenya
The coastal land questions are all or partly associated with the awarding of sovereign rights over
the (ten mile) sixteen (16) kilometre strip at the Coast to the Sultan by the British and Germans
who were fighting for the control of East Africa. The Sultan’s subject held private property rights
over the land and secluded the indigenous communities especially those who were not Muslims
and were not his subjects.88

At independence in 1963, the 16km Coastal Strip was transferred to Kenyan sovereignity through
an agreement among the Sultan Jamshid bin Abdullah of Zanzibar, 89 the British Queen Elizabeth
II and Jomo Kenyatta. Kenyatta I promoted the infringement of the indigenous coastal people’s
rights to land by taking sides with the British Government and the Sultan and later allocating part
of the land to his family, cronies and his Kikuyu co-ethnic generally.

The coastal land problem has also been historically complicated by the Mazrui land claims… 90

As recorded by Karuti Kanyinga:

“At the time of transition to independence, the British government entered into a pre-independence
agreement with the Kenyatta administration and the Sultan regarding control of land in Mwambao.
Kenyatta conceded to the Sultan’s demands for recognition of private land rights on the Coast and
promised to adjudicate and register such rights where they were not adjudicated, notwithstanding
the negated land rights of the indigenous groups. Both the agreement and negotiations over
independence concluded the process of creating the squatter phenomenon: they transformed the
Mijikenda into squatters or tenants of the Arabs and the Swahili landowners.”91

Jomo Kenyatta complicated the already complex coastal land question. There are at least four (4)
permutations or nuances to the coastal land question: Lamu and Mpeketoni, Taita Taveta, Kwale,
and the Mombasa beach land or sea front generally.

First, Jomo Kenyatta facilitated the settlement of Mpeketoni (or Mpe katoni, give him or her the
carton in Swahili?) by the Kikuyu in the Kenyatta Settlement Scheme. Second, in Taita Taveta,

88
Who were the Sultans of Zanzibar from the mid-19th century to 1963 when Kenya gained independence? Sultan
Majid bin Said (1856-1870), Barghash bin Said (1870-1888), Khalifa bin Said (1888-1890), Ali bin Said (1890-1893),
Hamid bin Thuwayni (1893-1896), Khalid bin Barghash (August 25, 1896-August 27, 1896), Hamoud bin Mohammed
(August 27, 1896-July 18, 1902), Ali bin Hamud (1902-1911), Khalifa bin Harub (1911-1960), Sultan Abdullah bin
Khalifa (1960- July 1, 1963). See A. Elkholy, (2016) “Sultanate of Zanzibar (1856–1964),” 2016, March 27, at
https://www.blackpast.org/global-african-history/sultanate-zanzibar-1856-1964/ (accessed February 16, 2021).
89
Zanzibar was granted independence by the UK in December 1963 and became a constitutional monarchy under
Sultan Jamshid bin Abdullah. He was overthrown a month later during the Zanzibar revolution 1964.
90
See Mazrui Lands Trust Act, Cap 289 of 1914.
91
Karuti Kanyinga (2000) “Politics and struggles for access to land: Grants from above and squatters in coastal
Kenya,” Institute for Development Studies, University of Nairobi, at
https://learning.uonbi.ac.ke/courses/GPR203_001/document/Property_Law_GPR216-
September,_2014/Articles/Karuti_squatters.pdf (accessed 14/10/19).
Page 14 of 71
Kenyatta acquired large chunks of land that measured at least 30, 000 acres in 2013.92 And in spite
of massive landlessness among the Taita where a large population live as squatters or spontaneous
settlers in their ancestral land.

Third, in Mombasa and at seafront generally long serving Coast Provincial Commissioner (PC)
Eliud Mahihu, a Kikuyu and Kenyatta I crony facilitated the allocation of land to the Kenyatta
Family and Kikuyus.93 Indeed the only “public” beaches are appropriately named Kenyatta Beach
and Mama Ngina Water Front.94 Of course, some of the initial beneficiaries sold the beach plots.95

President Daniel arap Moi, President Mwai Kibaki, and President Uhuru Kenyatta II followed the
legacy of President Jomo Kenyatta in allocating or retaining the Kikuyu tribal domination over
coastal land and business or economic opportunity….96 These and other injustices have gave rise
to the quest for secession or devolution.97

2.6 Kenya-Somalia and Kenya-Ethiopia Border 1926, 1963, 2019, 2020 and Beyond
The creation of the boundary between Kenya and Ethiopia was completed in 1903. In 1926, most
of the present North Eastern counties or region (formerly North Eastern Province (NEP)) were
brought under Kenya.98 It was previously known as the Northern Frontier District (NFD).99 This

92
Ibid.
93
See John Kamau (2015) “Eliud Mahihu: Powerful Coast PC who used the beach and connections to mint millions,”
Daily Nation, Nairobi, October 11, 2015, at https://www.nation.co.ke/oped/opinion/Powerful-Coast-PC-who-used-
connections-to-mint-millions/440808-2907916-ms78i9z/index.html (accessed 13/2/2020).
94
It used to be called Mama Ngina Drive… Ibid.
95
…See also the Andrew Mathai (Parliamentary) Select Committee on the Coastal Strip…; John Kamau (2019)
“Mathai vs Maathai: Politics, business and eventual divorce,” Sunday Nation, Nairobi, September 22, 2019, at
https://nation.africa/kenya/news/mathai-vs-maathai-politics-business-and-eventful-divorce-206142 (accessed
October 8, 2020).
96
These include Garissa, Wajir, and Mandera Counties (formerly districts).
97
Jumwa Gandi (2019) Devolution and Secession in Coastal Counties in Kenya, Biafra and Africa, University of
Nairobi Law School LLB Research Paper.
98
The Kenya-Somali border war was derogatorily and inaccurately called “shifta” war in the 1963, 1968... There has
been a border dispute between Kenya and Somalia over whether a straight line should be used or a diagonal line in
demarcating the over 100,000 square kilometres disputed area or sea boundary between the two countries........
Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) No. 2021/26…. Discuss the claims, the reliefs sought,
the response.... the judgment or award…. This dispute was submitted to the International Court of Justice (ICJ) in
2014… The ICJ pushed the oral proceedings to March 2021 due to the coronavirus pandemic, which affected the
initially planned hearings on June 8, 2020; Ken Opala (2019) “How Kenya bungled Somalia border talk,” Daily
Nation, Nairobi, September 30, 2019, at https://www.nation.co.ke/news/africa/How-Kenyan-bungled-Somalia-
border-talks/1066-5292066-e00p7yz/index.html (accessed 13/2/2020); – early October 2019…Standard weekend of
12/10/19…. This is related to the practice in the A-G’s office and other Government offices of only engaging external
lawyers who were tribally and politically affiliated….Okiya Omtata Okoiti brought a case on this……See Maureen
Kakah (2019) “Okiya Omtatah sues over Uhuru parastatal jobs list,” Business Daily, Nairobi, February 11, 2019, at
https://www.businessdailyafrica.com/bd/news/okiya-omtatah-sues-over-uhuru-parastatal-jobs-list-2238296
(accessed February 16, 2021).
99
….Hannah Whittaker (2012) “Forced villagization during the shifta conflict in Kenya, ca. 1963-1968,”, 45(3)
International Journal of African Historical Studies.
Page 15 of 71
territory was carved out of the Jubaland region of present-day southern Somalia during the colonial
period.100

The Kenya-Somali border war was derogatorily and inaccurately called “shifta” war in 1963-
1968... There has been a border dispute between Kenya and Somalia over whether a straight line
should be used or a diagonal line in demarcating the over 100,000 square kilometres disputed area
or sea boundary between the two countries….

There have been a series of disputes regarding the Kenya-Somalia boarder since the pre-colonial
era. The issue was revisited in 2009 when the two (2) Governments signed a memorandum of
understanding (MOU) that recognized Kenya’s claim under international law, but the MoU was
later rejected by the Somalia Parliament.101 Kenya also raised the question of resolving the Kneya-
Somalia maritime border dispute before the Intergovernmental Authority on Development (IGAD)
and other existing regional bodies, before escalating the dispute to the ICJ.

This dispute was submitted to the International Court of Justice (ICJ) in 2014… The ICJ pushed
the oral proceedings to March 2021 due to the coronavirus pandemic, which affected the initially
planned hearings on June 8, 2020….

The dispute intensified in August 2014 and 2021 when Somalia sued Kenya at the International
Court of Justice for unlawful operations in her alleged maritime territory. 102 The disputed water is
a triangular patch created by projecting the Kenya-Somali border eastwards. It measures about
100, 000 square kilometers.103

In October 2015, Kenya challenged the jurisdiction of the International Court of Justice (ICJ) at
the Hague to hear the case as well as its admissibility. The ICJ then held the first hearing on
September 19 to September 20, 2016 of Kenya’s petition. In February 2017, it quashed Kenya’s
plea, affirming its jurisdiction to hear the case.

100
See Thembisa Fakude (2015) “Can Kenya avoid a Sectarian Conflict?” Al Jazeera Centre for Studies, at
https://studies.aljazeera.net/en/reports/2015/05/2015514124231134280.html (accessed October 28, 2020);
.https://idis.uonbi.ac.ke/sites/default/files/chss/idis/idis/AN%20ANALYSIS%20OF%20THE%20GARRE%20AND
%20MURULLE%20INTER-
CLAN%20CONFLICTS%20IN%20MANDERA%20DISTRICT%20IN%20KENYA.pdf
101
John Kamau (2019) “Colonial deal and oil factor in Kenya-Somali boarder row,” Sunday Review, 30/6/019, at 29;
Sam Kiplagat (2019) “Group wants Kenya to pull out of maritime case,” Sunday Review, 30/6/2019, at 29.
102
On pacific settlement of disputes, see UN Charter 1945, Statute of the ICJ…. AU Constitutive Act…
103
Japheth Ogila (2019) “Inside the Kenya-Somalia dispute over maritime territory,” Standard Digital, 18/2/2019, at
https://www.standardmedia.co.ke/article/2001313491/how-the-kenya-somalia-maritime-territorial-disputes-started
(accessed 2/7/2019). See Annex...on the territory disputes between Kenya and her neighbours since independence in
1963.
Page 16 of 71
In December 2018, Kenya filed a Counter-Memorial, a response against Somalia’s claims. The
dispute led to strained diplomatic relations between the two countries. 104 In 2019, a group of
Kenyans went to court to have the government compelled not to participate in the case at the ICJ.

They argued that the case may lead to alteration of Kenya’s territory without a referendum as
required by the Constitution.105 In their view, the matter should be solved amicably.106 Further
attempts to address this stalemate were futile, with Kenya being ambivalent with the ICJ, hence
leaving it to the court to decide.

The International Court of Justice (ICJ) delivered its judgment on October 12, 2021. Somali argued
that the disputed boundary ought to run south-east. On the other hand, Kenya argued that it had
been in control of the disputed boundary since 1979. Also, that the boundary ought to run on a 45-
degree latitude.

The ICJ held that Somalia had not agreed to the border delimitation as claimed by Kenya by stating
that there was “no agreed maritime boundary between the Federal Republic of Somalia and the
Republic of Kenya that follows the parallel of latitude.”

Kenya rejected this judgment. President Uhuru Kenyatta stated that:

“On many occasions, we have experienced territorial aggressions to the sanctity of our borders. Some have
been driven from within and others from without. But the message of our founding fathers to these
aggressors was simple: 'Not an inch less, not an inch more.' And this is the message that must reverberate
across the collective quarters that are bent on annexing any part of the territory known as the Republic of
Kenya.”107The Somalia President Mohamed Abdullahi Mohamed (Farmajo) in response to the
court’s ruling, stated that:

104
Ken Opala (2019) “How Kenya bungled Somalia border talk,” Daily Nation, Nairobi, September 30, 2019, at
https://www.nation.co.ke/news/africa/How-Kenyan-bungled-Somalia-border-talks/1066-5292066-
e00p7yz/index.html (accessed 13/2/2020); and Standard weekend of 12 and 13 October 2019…… There are claims
that Somalia was keen on a diplomatic and political solution, but the A-G’s and Foreign Affairs office were not
forthcoming. There are claims that some Kenyan officials discovered that they could benefit from a KES 3B litigation
fund.
105
Art. 255 Constitution of Kenya 2010.
106
Cf. Sam Kiplagat (2019) “20 seek to bar Kenya from Somalia dispute,” Business Daily, Nairobi, 18/10/19, at
https://businessdailyafrica.com/economy/20-seek-to-bar-Kenya-from-Somalia-dispute/39446234-5315400-
13q8355/index.html; Sam Kiplagat (2019) “Kenya: Group seeks to bar Kenya from Somalia dispute,” Daily Nation,
19/10/2019, at https://www.nation.co.ke/news/20-seek-to-bar-Kenya-from-Somalia-dispute/1056-5317106-
h1a2xcz/index.html (accessed October 9, 2020); See Maritime Delimitation in the Indian Ocean (Somalia v. Kenya)
No. 2021/26; Mohamed Sheikh Nor (2021) “Somalia and Kenya’s diplomatic disputes create collateral damage,”
Africa Report, January 18, 2021, at https://www.theafricareport.com/59029/somalia-and-kenyas-diplomatic-disputes-
create-collateral-damage/ (accessed February 12, 2021).
107
Henry Munene (2021) “'Not an inch less, not an inch more’- Kenyatta to Somalia,” Daily Nation, Nairobi, October
20, 2021, at https://nation.africa/kenya/news/uhuru-to-somalia-not-an-inch-less-not-an-inch-more--3590046
(accessed October 27, 2021).
Page 17 of 71
 “Kenya should instead see the decision of the court as an opportunity to strengthen the relationship
of our two countries and the collaboration of their neighbouring people. Somalia did not choose to
be a neighbour with Kenya, but it was the will of the almighty God so that we are forced to live as
peaceful neighbours. Somalia was committed to that forever and welcomes it now.”108

Key among the debates post the ICJ decision revolve around the future of socio-economic, political
and diplomatic relations between Kenya and Somalia. This is also exacerbated by the fact that the
judgments of the ICJ are final and binding. The Republic of Somalia released a press statement in
readiness for military aggression against Kenya. Alternatively, Kenya also upgraded its naval base
…..

I have argued in several fora that to avoid the escalation of the Kenya-Somalia maritime border
dispute, there is need to recalibrate and engage in good faith, political, international, and
diplomatic negotiations, mediation and public interest lawyering between Kenya and Somalia.

2.7 Kenya under colonialism

The main impact of colonial status was the loss of sovereignty by the Kenyan people and territory.

What did it mean for Kenya to be colony in the period? between the following periods: 1895-1920,
1920-1963 and 1895-1963 generally? What were the economic, political social, cultural,
technological and environmental impacts of colonialism in Kenya and Africa?

2.7.1 Loss of Kenyan people’s sovereignty, dignity and self determination

Significantly, the people of Kenya had rights, liberties, and freedoms as well as duties orobjectives.
The British now had responsibility for administration and for protecting all within the colony. This
included Africans and Arabs who were also “subjects” of the crown; British citizens;other settlers
as well as Indians and other immigrants.109

In transnational or international law, the British had the responsibility of representing Kenya’s
interests, for instance, through defence or the borders (security and foreign relations), trade
(bilateral, plurilateral and multilateral), sporting activities, and treaties. But the British focused on
claiming and enjoying liberties, rights and privileges of the African natives as a way of controlling
and subduing the local communities in the colonies…..

108
Kevin Cheruiyot (2021) “Somalia asks Kenya 'to accept maritime ruling’ after ICJ verdict,” Star, Nairobi, October
13, 2021, at https://www.the-star.co.ke/news/africa/2021-10-13-somalia-asks-kenya-to-accept-maritime-ruling-after-
icj-verdict/ (accessed October 27, 2021).
109
Ghai and McAuslan (1970) Public Law and Political Change in Kenya…; Jagjit Singh (1971) “Portrait of an Asian
as an East African,” in David Cook and David Rubadiri (ed) Poems from Eats Africa, London, Heinemann.
Page 18 of 71
However, the colonial administration in Kenya faced discontent due to the threats to rights and
freedoms of the African majority, and especially life, security, liberty, land and related property
interests.110

This largely transformed the African economic and social model including property ownership
from a communal to a capitalist system. For instance, a polygamous marriage with many huts
would mean more taxes to be paid by the Africans.

2.7.2 Right to Life, security and related human rights in colonial Kenya
Kenyans lost lives and limbs in colonial Kenya even though the applicable English, European,
universal and even colonial law protected the right to life and security. Kenyans were killed at a
whim by the “masters.”111 Numerous Kenyans also died in British wars including the conquest
expeditions,112 World War I,113 World War II,114 in the Mau Mau rebellion.115

2.7.3 Liberty and movement in colonial Kenya

The colonial era came with a lot of restrictions on liberty and movement. Personal liberty was
severely constrained in colonial Kenya. Generally, the British used the Masters and Servants
Ordinance 1906 to restrict the movement of the natives to the native reserves.

The colonial laws also infringed on the freedom of conscience, opinion, freedom of expression,
freedom of religion,116 freedom of association, freedom of assembly, freedom of movement….

110
….Discuss poll tax, hut tax.......See Attiya Waris (2007) “Taxation without principles: A historical analysis
of the Kenyan taxation system, Kenya Law Review, 262-304.
111
Contended peasants were not interested in working for anybody, let alone Whites…. Some proudly argued: No
body opens my gate… See Elisha Stephen Atieno-Odhiambo (2002) “Hegemonic enterprises and instrumentalities of
survival: Ethnicity and democracy in Kenya,” 61.2 African Studies, 223-249; John Lonsdale (1992) “The moral
economy of Mau Mau: Wealth, poverty and civic virtue in Kikuyu political thought,” in Bruce Berman and John
Lonsdale (ed) Unhappy Valley: Conflict in Kenya and Africa, Vol. 2. Violence and Ethnicity, Eastern African Studies,
Ohio University Press, 315-504.
112
These included the 1899 killing of Luos during the Uyoma-Sakwa-Seme conquests… See John Lonsdale (1977)
“The politics of conquest: The British in Western Kenya, 1894-1908,” Vol. 20(4) The Historical Journal, 841–870.
113
July 28, 1914 - November 11, 1918…
114
September 1, 1939- September 2, 1945…
115
See also Chapter 2 of CODRALKA 1 below on Constitutional Founding of the Kenyan and African State.
116
Article 32 Constitution of Kenya, 2010 stipulates that every Kenyan has the freedom to conscience, religious beliefs
and opinion…
Page 19 of 71
Some of the draconian regulations governed kipande;117 passes,118 labour and even created reserves
for Africans.

There were exclusive European or “White Highlands,” Asian quarters (Southlands) for settlement,
business, Asians banned or restrained from accessing agricultural land. Business premises were
also segregated…..

The kipande system involved African male natives always carrying pieces of cards tied around the
neck. All African males aged 15 years and above had to carry a Kipande. The card contained their
personal identification number, place of origin, history of employment and authorizing officer. It
was introduced via the 1906 Masters and Servants Ordinance to record African labour and restrict
their movement.

During the October 20, 2021 Mashujaa Day celebrations in Mwea, Kirinyaga County, former
Prime Minister Raila Odinga quoted the Kikuyu Embu Meru (KEM) Passbook of Mr Simon
Warorwa son of Ngugi, registration number 1621. The passbook contained details of Mr Warorwa,
including his tribe (Kikuyu), district (Fort Hall), location (Gatanga), sub-location (Rugetha), the
name of the chief (Ndung’u) and the occupation (clerk). The passbook also stated that it was a
“permit to move from one place to another.”119

The Kipande system introduced vide the Registration of Natives Ordinance, 1915 was applied
strictly against the African natives only. Its impact was the brewing of negative ethnicity through
a divide and rule tactic where natives were segregated based on their ethnic differences. Africans
also deeply resented this practice.120

2.7.4 Taxation in colonial Kenya

There were also concerns regarding taxation. The colonial government imposed tax on Africans
who were insufficiently represented if at all in the Colonial Government. They were neither
consulted before the imposition of such taxes and at the same time, their interests were not served
when the funds collected were used by the Government.
What was the justification for taxation? What were the main taxes? What were the taxation
challenges?

117
What was Kipande? form? Its role in colour bar (only for Africans), freedom of movement, (zones, reserve, risaf…
cf. visa, passport… when CMG returned to Kenya with his British wife Malvis Tate could not stay together in the
Lavington and Muthaiga which were considered White residences… reasons to travel…) labour…
118
Nyatiti on passes to go to Nairobi….
119
See also Muthoni G. Likimani (1985) Passbook Number F. 47927: Women and Mau Mau in Kenya, Macmillan.
120
William R. Ochieng (2002) Historical Studies and Social Change in Western Kenya: Essays in Honor of Prof
Gideon S. Were, East African Educational Publishers Ltd, Nairobi.
Page 20 of 71
The taxes were introduced as a means of revenue generation for the colony. Therefore, Africans
were therefore to participate in revenue collection to pay for services as a measure of civic
responsibility.

There were at least two (2) main taxes that were introduced by the British in colonial Kenya. First,
poll tax. This was a contribution by the local natives to the revenue and administration of the
colony. Second, hut taxes. These were payable by any male who owned a hut or household.

What was the currency in which taxes were paid during the various phases of the colonial period?
Africans were forced to pay between 5 and 8 rupees between 1915 to 1920. This was a significant
increase from the 1 rupee that was payable at the introduction of Hut and Poll tax in 1901.121

These issues were widely debated especially in the 1930s and 1950s when the East African Income
Tax (Management) Act, 1952 was introduced as a consolidation of the tax regimes in Kenya,
Uganda and Tanganyika.

….

How did Africans respond to taxation? The Africans disapproved of the hut and poll taxes that
were introduced by the British as a means of solicitation and coercion for cheap African labour in
the white settler farms. The most evident reaction to taxation was the Maji Maji rebellion between
1905 to 1907 and the Ghanaian resistance in 1852. The former was a violent uprising against the
harsh colonial taxation policies and forced labour in the cotton farms.

What strategies and tactics did Africans in Kenya apply?

In Kenya, local natives applied at least three (3) techniques. First, to pay the poll and hut taxes.
Second, evasion by fleeing whenever the tax collectors approached. Avoidance?122 Third, to fight
against the collectors. For instance, the Nandi revolts between 1895 and 1906, and 1923.123

Elspeth Huxley stated that:

“The situation throughout the month was tense. There is a story that the Collector’s native clerk
was sent to the chief’s boma with a demand for a hut tax. He was murdered and his head sent back
to the government with a message: ‘This is the hut tax of the Nandi.’ By the end of the month there
was no sign of submission. A punitive expedition was sent to subdue them… Companies of the

121
……. Attiya Waris (2007) “Taxation without principles: A historical analysis of the Kenyan taxation system,”
1(272), Kenya law review, 274-304
122
See Ochieng & Ogot....destroying houses, hiding in the lake, on trees.....
123
Albert T. Matson (1972) Nandi Resistance to British Rule, 1890-1906, Vol. 15, East African Publishing House.
Page 21 of 71
 King’s African Rifles from Nyasa land and Uganda as well as from Nairobi took part…
Six_columns converged upon the Nandi country and large quantities of cattle were confiscated.”124

What were the methods? The British used coercive tactics including the Kipande system to restrict
the movement of Africans from their areas of employment. Also, the colonial authorities killed
and imprisoned tax defaulters as a coercive mechanism to enforce the payment of taxes.

African native chiefs were also given incentives by the 1920 Native Authority (Amendment)
Ordinance which gave them the mandate to collect taxes and enforce compulsory labour for sixty
(60) days against the natives, in exchange for a commission based on the amount of taxes they
collected. The higher the taxes collected, the more the commission paid.125

The British responded with a great degree of violence, intimidation, torture and killing of tax
defaulters. Those who defaulted were also imprisoned and detained.
At least two (2) issues were raised. First, the taxation system lacked equity since the Africans were
greatly disadvantaged. Second, there was uncertainty in the tax regime including what amount of
tax would be payable? The timelines of payment? And criteria applicable.126

Even the old, women and persons with disabilities (PWDs) were taxed.127 These were critical
representation and governance issues since the taxes payable could be reviewed by the British at
their whims, yet the African majority lacked adequate and substantive political representation until
the 1950s.128

The taxation policy adopted in Kenya and Africa was also related to the inhibitory labour practices
under the Colonial Kenya….

2.7.5 Labour in Colonial Kenya

Kenya consisted of largely contended peasants.129 The British thus introduced inducement for
contract labour, forced labour, taxes as incentives, criminalized labour relations….130

124
Elspeth Huxley (1935) White Man’s Country: Lord Delamere and the Making of Kenya, Vol. 1, Macmillan and
Company.
125
…..East Africa Protectorate (1920) “The Native Authority Amendment Ordinance.”
126
….. Attiya Waris (2007) “Taxation without principles: A historical analysis of the Kenyan taxation system,” 1(272),
Kenya law review, 274-304, op. cit.
127
Hansard Commons (1930) “Kenya (Hut and Poll Tax), July 7, 1937, Vol. 326, at https://api.parliament.uk/historic-
hansard/commons/1937/jul/07/kenya-hut-and-poll-tax (accessed June 21, 2021).
128
…. Isaac Kipsang Tarus (2004) A history of the direct taxation of the African people of Kenya, 1895-1973, Doctoral
dissertation, Rhodes University.
129
ESAO….Nyong’o…Apollo Njonjo……
130
Bruce Berman (1992) Control and Crisis in Colonial Kenya: The Dialectic of Domination, East African Publishers;
Bruce Berman and John Lonsdale (1992) Unhappy Valley: Conflict in Kenya & Africa, Vol. 1, Ohio University Press,
Ohio, US.
Page 22 of 71
“Nyanza,” “Western” and “Eastern” counties which comprise mainly the Luo, Luhya, Kisii and
Kamba were converted into labour reserves or camps and people were forcibly recruited to work
for the white settlers like Lord “Dalmia” (Delamere), Lord Egerton, Fr Egerton Castle in Njoro,
Nakuru County ….

These and other Kenyan Africans were also employed in the two worlds wars and during the Mau
Mau revolt 1952 to 1960 …. Then the British called even 50 year old African men house boy,
shamba boy…. following Albert Schweitzer’s racist comment that “the African may be my brother
but younger by 400 hhhuyears…” or that African grownups were like 14 year old Brits?131 Joseph
John Kamotho could say that some people were only cooks and watchmen, in an alleged reference
to the Luhyas… Thus, contented peasants were turned into proletariats.132

Significantly, the colonial Government was extracting economy’s resources, exploiting labour,
and oppressing Kenyans politically. It denied Africans freedoms and liberties including
participation or representation. There was poor governance….

2.7.6 The colonial land question in Kenya

The British continued to alienate land and changed land tenure and land law to especially in 1902,
1904, 1908, 1915, 1930, and 1938 when a distinction between the Crown land that private titles
could be issued against, and the native reserves for Africans, was made….

131
The Delamare dynasty has been economically powerful into the 2010s.
132
Elisha S. Atieno-Odhiambo (1972) “The Rise and Decline of the Kenya Peasant, 1888-1922,” 9(5) East Africa
Journal, 11-15; Elisha Stephen Atieno-Odhiambo (2002) “Hegemonic enterprises and instrumentalities of survival:
Ethnicity and democracy in Kenya,” 61(2) African Studies, 223-249; Elisha Stephen Atieno-Odhiambo (1987)
“Democracy and the Ideology of Order in Kenya,” The political economy of Kenya, 177-201.
the rise, decline, ...of the peasantry in Kenya, Central, Nyanza, Rift Valley, Coast. Different peasantries? Middle
peasantry? See Peter Anyang’ Nyong’o (1981) “The development of a middle peasantry in Nyanza,” 8 (20) Review of
African Political Economy, 108-120; Mukaru D. Ng’ang’a (1981) “What is happening to the Kenyan peasantry?”
8(20) Review of African Political Economy, 7-16; Gavin N. Kitching (1980) Class and Economic Changein Kenya: The
Making of an African Petite Bourgeoisie 1905-1970, Yale University Press, Connecticut, US.
What did forced labour mean to British and Kenyan communities? Cf. Prof Robert William Ochieng: “I do not respect
peasant cultures?” Why (not?) Ochieng had stated that he applied neo-Marxist ideology… before joining President
Moi’s KANU as a Personal Permanent Secretary (PS) for Research in State House.
Page 23 of 71
To what effect? They introduced alien concepts like rights, bona vacantia,133 terra nullius,134
tenants at will of the Crown as opined by the Court in Isaka Wainaina wa Gathomo & Another v.
Murito wa Indagara & Others …..135

Also, there were police powers where the British Government invoked sovereign power to regulate
(not extinguish) ownership rights through acquisition in the private use of land for the public
interest. The State is under no obligation to provide compensation.136

Another key concept is eminent domain where the State can convert private or community owned
land on grounds of the public interest and for public use. The argument is that the State retains the
Sovereign title to all land in Kenya or Kenyan territory under Article 5 of the Constitution 2010.137
This was also constitutionalized in Article 40 of the Constitution 2010 which provides that the
State may acquire private land for an adequate compensation to the owner. …138
Then African political and economic agitation processes led to agrarian reforms, especially under
the Sir Morris Carter Land Commission of 1934, the RJM Swynnerton Plan of 1954….
What was the East African Royal Commission 1953-1955 (EARC) about?139 The EARC was an
institutional framework mandated to inquire and recommend appropriate measures to enhance
social and economic development in Uganda, Kenya and Tanganyika as a region. These included
poverty, population and land issues.

However, the EARC’s report was debated on at least three (3) grounds. First, that it was too
abstract and not practical as it had suppressed African views. Second, it raised the question as to
the extent to which the colonial governments ought to intervene in the market economies. This
sparked debate as to whether the African colonies would be better while independent as opposed
to the proposed paternalistic interventions by the colonial Governments.140

133
…… Assa Kibagendi (2012) The problem of land rights administration in Kenya, Doctoral dissertation, University
of Nairobi; Patricia Kameri-Mbote (1995) “Law of succession in Kenya: Gender perspectives in property management
and control,” International Environmental Law Research Centre.
134
….. HWO Okoth-Ogendo (1975) “Property theory and land use analysis: A theoretical framework,” 5(1), Journal
of Eastern African Research & Development, 37-53.
135
Isaka Wainaina wa Gathomo & Another v. Murito wa Indagara & Others, Colony and Protectorate of Kenya, Law
Reports, Vol. IX, Part II (1923), 102. It was held that where natives occupied Crown Land, they became tenants at
will of the Crown. …
136
… HWO Okoth-Ogendo (1975) “Property theory and land use analysis: A theoretical framework,” op. cit.
137
Article 5 of the Constitution 2010 (territory of Kenya) states: “Kenya consists of the territory and territorial waters
comprising Kenya on the effective date, and any additional territory and territorial waters as defined by an Act of
Parliament.”
138
…..Article 40 of the Constitution, 2010 (protection of the right to property).
139
…? Relocate… See Chapter 4 on Constitutional values, principles, policies and politics in Kenya and Africa:
Agency and Structure.
140 …….

Page 24 of 71
Third, the Report also proposed the land reform of the traditional tenure systems and the making
of land available for farming to the African natives. The effect was that this would address the
reserve settlement question and create and expanded economic base for African socio-economic
development.

The Kenyan land questions are largely the result of historical colonial land agreements between
the colonials and the natives,141 colonial alienation and post colonial illegal and irregular
acquisition.

2.7.6.1 Anglo-Maasai Land Agreements of 1904 and 1911

The British alienation of land and changes to land tenure law, land and agrarian law has dire
consequences among the Maasai, Coastals, Kalenjin, Kikuyu and other Kenya people. In 1904 and
1911 the British signed agreements with the Maasai, regarding the alienation of Maasai land and
movement of the Maasai to the Laikipia area.142

….Discuss – Ole Njogo case. Who were the parties? Lenana represented the Maasai in the
agreement. Offer and acceptance? of the agreement and of related agreements? Did he have
capacity? Consideration?143 What was the quid pro quo? Conditionality? Duration of the
agreement? Dispute resolution?
A treaty is between a state and a state or other persons in international law…. not between a state
and an individual or a community that is subject to the state…. Therefore, the Anglo-Maasai
Agreement was a contract defective between Lenana and the British, not a treaty.

Remarkably, section 7 of the Land Group Representatives Act, 2012 which indicates that one can
only exercise such representation of a community on land issues, where the individual is duly
elected in a meeting constituted under section 5 of the Act. Lenana had not been appointed or
elected to represent the Maasai in such a land transaction, in a manner similar to dealing with
private land.

141
If per-colonial migration, settlement and exchange (?)….
142
…. To discuss case, parties, offer, consideration .... See W.T.W. Morgan (1960) “The White Highlands of Kenya,”
Vol. 129, No. 2, The Geographical Journal….
143
See issues arising from Anglo-Maasai “treaties” (sic: agreements) of 1904 and 1911, at
http://equalinrights.pbworks.com/f/Write+up+on+Anglo+Maasai+Treaties.pdf (accessed 3/6/2014). See also this link
on the same issues, at
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCEQFjAA&url=http%3A%2F%2
Fwww2.ohchr.org%2Fenglish%2Fissues%2Findigenous%2Fdocs%2Ftreaties%2Fbp7.doc&ei=2ZGPU-
bhIbCV7AaWhoCIDQ&usg=AFQjCNEsNfhVGsYX6rJRtBdypyg6yssrMQ&bvm=bv.68235269,d.ZGU&cad=rja
www.google.com
Why does Okoth Ogendo refer to them as “treaties” ? See H.W. Okoth-Ogendo (1984) “Development and the legal
process in Kenya: An analysis of the role of law in rural development administration,” International Journal of the
Sociology of Law…..
Page 25 of 71
The Maasai in turn lost life (and limb), liberty and livelihood (3 Ls) and suffered health, ecological,
economic, social and cultural problems and constraints as a result of the disruption.144 The Maasai
land question was a major issue at the Lancaster House conferences (1960-63)145 and also at the
Bomas of Kenya Constitutional Review negotiations (2002-2005)146…

In 2004, Maasai demonstrated in Laikipia, demanding lost land on the centenary of the first Anglo-
Maasai agreement…. Instead, the Kibaki administration through the then Lands Minister Amos
Kimunya and security agencies ordered the beating up of the Maasai.147…The black and a few
White settlers had replaced the original White settlers….148

The Maasai land question would re-emerge decades later, as seen in the Maasai protests in 2013
in Narok against further encroachment on their land. The rate of land grabbing in Kajiado and
Narok will have far reaching implications. Remarkably, the Kajiado County Government launched
a new land policy seen as a move to protect the county from invaders.149

The Maasai in the future may constitute the economic and political minority in the only two
counties that were largely Maasai and this may result in the Maasai being unrepresented or under-
represented in the elective posts of the state.150 This is also the case in Lamu County where the
Kikuyu have a large population and dominate economically and politically.

In primary school, we had a song during football matches:

“Lenana, Lenana /Agreementa/ Lenana there was a young Maasai /Agreementa/ 1904
Agreementa.…”151

This was a descriptive song that helped students memorize the 1904 and 1911 Maasai land
question. This is also similar to the debates and controversies on the Kalenjin land question.

144
Lotte Hughes (2006) Moving the Maasai: A Colonial Misadventure, Palgrave, Basingstoke, UK.
145
…Lotte Hughes (2005) “Malice in Maasailand: The historical roots of current political struggles,” Ferguson Centre
for African and Asian Studies, Open University, UK, at
https://www.mpl.ird.fr/colloque_foncier/Communications/PDF/Hughes.pdf (accessed February 16, 2021).
146
… Cultural Survival (2020) “Maasai wary of draft Constitution backed by Government,” at
https://www.culturalsurvival.org/news/maasai-wary-draft-constitution-backed-government (accessed February 16,
2021).
147
… Marc Lacey (2004) “Kenya repulses land grabs akin to those in Zimbabwe,” New York Times Service, Nairobi,
September 5, 2004, at http://globalag.igc.org/armedconflict/countryreports/africa/landgrabs.htm (accessed February
16, 2021).
148
…Ibid.
149
See Kajiado County (2020) “County Government launches new land policy,” at https://www.kajiado.go.ke/county-
government-launches-new-land-policy/ (accessed 7/9/2015).
150
Ahmednasir Abdulahi (2014) “Maasai risk being driven from their grazing lands,” Sunday Nation, March 29, 2014,
at http://mobile.nation.co.ke/blogs/Maasai-Land-Grazing-Narok-Kajiado/-/1949942/2262278/-/format/xhtml/-
/k17glw/-/index.html (accessed 3/6/2014).
151 …

Page 26 of 71
2.7.6.2 The lost Kalenjin lands in colonial and post colonial Kenya
The Kalenjin, the Maasai, Kikuyu and coastal communities continued to lose land even during the
post-colonial times.152

The Kalenjin land especially the Nandi and Kipsigis land question is largely traceable to British
colonialism. The British introduced a new system of land tenure and administration among the
Kalenjins. …These partly, and subsequently led to the declaration by Prime Minister Jomo
Kenyatta in 1963 that the land of Kenya belonged to all Kenyans and that all citizens had rights to
live anywhere.153

Kalenjin have argued that they lost a lot of land in the Rift Valley to the Kikuyus before and after
independence. Kenyatta I and the outgoing British Government adopted at least four (4) strategies
and tactics to settle the Kikuyu in the Rift Valley, and especially Kalenjin land.

First, the British persuaded Moi, a Kalenjin nationalist and later leader of the Kenya African
Democratic Union (KADU) to work with Kenyatta as part of the land transfer and Kikuyu and
White settlement.154

Second, the British and Kenyatta I negotiated loans from the British Government and the World
Bank to buy back the settler farms in the “White Highlands.”155 Third, the Kenyatta Government
allocated of most of the land to Kikuyus who had been deprived of their land through at least three
(3) manoeuvres.

First, through Mau Mau pogroms. Second, through land adjudication, consolidation and
registration following the Swynnerton Plan in 1954.156 And third, through acquisition of Kikuyu

152
The lost Kalenjin lands in colonial Kenya: … Discuss. The lost Kikuyu lands in colonial Kenya:… Discuss….;
Cherry Gertzel (1978) “Development in the dependent state: The Kenyan case,” 32(1) Australian Journal of
International Affairs, 84-100.
153
A running theme has always been that while this is constitutionally and historically supported, how one acquires
the land is crucial. Moreover, Kenyans have argued that Kiambu, Murang’a, Nyeri, Nyandarua, and Kirinyaga should
be equally available for non-Kikuyu settlements.
154
See Andrew Morton (1998) Moi: The Making of an African Statesman, Michael O’Mara Books; Nyambega Gisesa
(2019) “Plotting the Moi succession: Intrigue, betrayal and tears,” Daily Nation, 12/10/19, at
https://nation.africa/kenya/news/politics/plotting-the-moi-succession-intrigue-betrayal-and-tears-212544 (accessed
October 8, 2020); story on Dr Sally Kosgei quoting Moi as seeking protection through President George W. Bush in
2002 in the context of his planned retirement, considering that he had agreed to work with Kenyatta at a difficult time?
To address difficult issues?
155
…cf. Zimbabwe under the late President Robert Mugabe…South Africa under Nelson Mandela, Thabo Mbeki,
Jacob Zuma, Cyril Ramaphosa…and arguments by Economic Freedom Fighters (EFF) Party Leader Julius Malema
and the Economic Freedom Fighters (EFF) Party….See…
156
… Roger JM. Swynnerton (1955) A Plan to Intensify the Development of African Agriculture in Kenya....
Page 27 of 71
land by Kenyatta and the Kikuyu oligarchs, plutocrats, arch acquirers or Kenyatta affiliates or the
“big boys” or 15 families of Kikuyu.157

Fourth, the Kikuyu bought land through Government subsidised land buying companies through
patronage by Kenyatta and Kikuyu politicians, business and bureaucratic leaders in Central Kenya
and in the “Kikuyu and diaspora,”158 especially the whole Highlands.

In the meantime, Rift Valley also attracted other tribes as settlers or workers, including the Kisii,
Luhya and Luo. As a result, Kalenjins have had major conflicts related to land, opportunity and
other socio-economic resources with other tribes living in the Rift Valley since independence. 159
But the most recurrent dispute or conflict is that between the Kikuyu and Kalenjin.

2.7.6.3 The lost Kikuyu land in colonial Kenya

The Kikuyu land question is mainly attributable to the steps taken by Kenyatta after independence
in dispossessing the Kikuyu in Central Province and settling his co-ethnics or tribesmen (“my
people”)160 out Kikuyu land, outside the former Central Province. Presidents Jomo Kenyatta and
Daniel Arap Moi used their powers to make land and other national or Government resources and
jobs accessible to members of their own ethnic groups, and especially families, political and
business affiliates and cronies.

The Kikuyu living in the Rift Valley have had historical land and business related conflicts with
the Kalenjins and the Maasai, while those living at the Coast have had conflicts with the native
coastal tribes. And some Kikuyu have apparently claimed Nairobi as part of post independence
Kikuyu domination or colonialism,161 yet it belongs to all Kenyans.162

157
…Rasna Warah (2018) “The sins of the father: Why lifestyle audits cannot resolve land-related historical
injustices,” The Elephant, June 28, 2018, at https://www.theelephant.info/features/2018/06/28/the-sins-of-the-father-
why-lifestyle-audits-cannot-resolve-land-related-historical-injustices/ (accessed June 21, 2021).
158
For example, Ngwataniro Mutukanio Land Buying Company……The land buying activities of Dixon Kihika
Kimani, the father of Susan Kihika (Nakuru County Senator, Jubilee Party, 2017-...). Cf. Nakuru District Ex Freedom
Fighters Organization (NDEFFO)….; See BBC (2019) “Zimbabwe's White farmers: Who will pay compensation?”
May 16, 2019, at https://www.bbc.com/news/world-africa-48264941 (accessed February 16, 2021).
159
…Chris McGreal (2008) “Kikuyu flee Rift Valley in terror as homes burned to ground,” Guardian, February 4,
2008, at https://www.theguardian.com/world/2008/feb/04/kenya.international (accessed February 16, 2021).
160
See Jomo Kenyatta (1966) My People of Kikuyu and the Life of Chief Wangombe, Oxford University Press; Jomo
Kenyatta (1938) Facing Mount Kenya, Secker and Warburg, London; Jomo Kenyatta (1968) Suffering Without
Bitterness: The Founding of a Nation, East African Publishing House...Jomo Kenyatta’s writing on the Kikuyu while
in England…
161
…Michela Wrong (2008) “Who are the Kikuyu? And why do Kenya’s other tribes resent them so much?,” at
https://slate.com/news-and-politics/2008/02/why-do-kenya-s-other-tribes-resent-the-kikuyu.html (accessed February
16, 2021).
162
Nairobi was initially a Maasai settlement, Enkare Nairobi. Over time, Nairobi has expanded into Kajiado, Kiambu
and Machakos. See Chapter 26 on Amending the Constitution in Kenya Post 2017.

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2.8 Decolonisation in Kenya and Africa
The decolonisation of Kenya began in earnest in about 1940. There are at least two (2) key issues.
First, is the problematique of the dualism between resistant and collaborating tribes. Second,
according to the late history of Kenya Professor ES Atieno Odhiambo (ESAO), no fixed date can
be ascribed to decolonization163…...

Kenyans were always resisting or collaborating or both, depending on the context. For instance,
the Kikuyu cooperated through Waiyaki wa Hinga.164 Then later resisted under Harry Thuku. Later
on, they cooperated under Harry Thuku, Senior Chief Waruhiu wa Kungu,165 and Josiah Njonjo….

The Kikuyu collaborated and resisted at the same time under Senior Chief Koinange wa Mbiyu;166
and Jomo Kenyatta. Luo, Kalenjin, Luhya, Kisii167 also resisted and/or cooperated depending on
the issues.168

There were at least three (3) main forms of decolonization, styles for freedom, and independence.
First, peaceful negotiation and constitutional discussions. These focused on freeing or liberating
Kenya. These were through memoranda, for example petitioning for land rights, liberty and against
colonial instrument of identification (kipande). This was part of the constitutionalists’ perspective
in the Kenyan struggles for Independence Constitution and included Jomo Kenyatta, TJ Mboya,
Jaramogi Oginga Odinga and Achieng’ Oneko….

Second, militant and violent resistance included raids on colonial establishments, killing of
colonial administrators or their supporters, collaborators, supporters and sympathisers and
disabling colonial installations like railways.
Some of the more famous militant leaders in the colonial period included Mekatilili wa Menza,169
the Nandi Warriors and Koitalel Arap Samoei,170 Muindi Mbingu,171 Elijah Masinde of Dini ya
Musambwa,172 Dedan Kimathi,173 Stanley Mathenge, W ariama, Muthoni… (Mau Mau).174….

The third form was a mix of the two. For instance, most communities generally collaborated and
or resisted before, during and after the two World Wars, 1914-18; 1939-45. The First World War
was fought among the Germans, Austria-Hungary, Bulgaria and the Ottoman Empire on the one
hand, and the Great Britain, France, Russia, Italy, Romania, Japan and the United States (the Allied
Powers) on the other.

163
…..to quote ESAO in Ogot and Ochieng Decolonization and Independence, ibid….
164
John Lonsdale (1995) “The prayers of Waiyaki: Political uses of the Kikuyu past” in W.R. Ochieng (eds) on
Waiyaki, Jomo Kenyatta, Ngugi wa Thiong’o… and the Historical Association of Kenya (HAK) conference…
165
British colonial injunction…..
166
See Koinange wa Mbiyu v. R…. on planting coffee by Africans.
167
Cf. Otenyo, Chief Nyandusi.
168
ES Atieno Odhiambo (1974) The Paradox of Collaboration and Other Essays, East African Literature Bureau; Ben
Kipkorir (1980) Biographical Essays on Imperialism and Collaboration in Colonial Kenya, op. cit.

Page 29 of 71
Kenya, Nigeria, Uganda, Tanzania, Ivory Coast (Cote d’ Ivoire)...were involved in the war directly
and indirectly on either side. It was initially called the Great War; the war to end all wars.175 It did
not achieve this since twenty one (21) years later, in 1939, the global powers were involved in
WWII. The effects of WWI were far reaching. First, more than 21 million people lost their lives.
Second, more than 70 million soldiers were involved in the war. Third, Germany with its African
possessions or protectorates including Tanganyika (later a British colony) and South West Africa
(Namibia) to South Africa (initially a Dutch territory before British occupation).176

What was the Second World War about?177 Immediate and remote causes?178 There were at least
four (4) major causes of WWII. First, the failure of the Treaty of Versailles and the ineptitude of
the League of Nations. Second, global economic depression during the 1920s which directly led
to the rise of Adolf Hitler in Germany.179

Third, the emergence of militarism in Japan. Fourth, the appeasement agreements failed. The
appeasement policy was adopted by Britain and France to maintain peace and the status quo with
Germany. The idea was that Britain would relinquish control over territories to Germany under
Adolf Hitler, in areas with at least 50% of German population. This was mainly because the two
powers were not ready to go to war, and the public interest was against any other wars, as a
consequence of fascism.

169
Mekatilili wa Menza led the Giriama people in a rebellion against the British Colonial Administration and policies
actively in 1913 – 1914. See…. Nita Bhalla (2020) “Kenyan female freedom fighter Mekatilili wa Menza celebrated
on Google,” Reuters, August 9, 2020, at https://www.reuters.com/article/us-kenya-women-fighters-
idUSKCN2550SY (accessed February 16, 2021).
170
Koitalel Arap Samoei was an Orkoiyot (prophet), the supreme chief of the Nandi people. He led the Nandi
resistance against British rule, specifically leading the opposition to the construction of the railway.
171
Muindi Mbingu led the Kamba people in the 1930s in resisting colonial rule, although he would later be murdered
at the height of the State of Emergency in 1953 for collaborating with colonialists in hunting down Mau Mau.
172
Elijah Masinde also led a number of localised defiance campaigns against the colonial authorities, and was
imprisoned many times from 1944. He founded the religious movement, Dini ya Musambwa.
173
Dedan Kimathi was the senior military and spiritual leader of the Mau Mau Uprising.
174
Stanley Mathenge also led the Mau Mau rebellion, although it is believed they had leadership wrangles with Dedan
Kimathi. He disappeared in 1955 and was later reported to be allegedly living in Ethiopia. See cf. ES Atieno Odhiambo
& John Lonsdale (2003) “Who were the Mau Mau?” Mau Mau and Nationhood,” Oxford University Press …..; ES
Atieno Odhiambo (1991) “The production of history in Kenya: The Mau Mau debate,” Canadian Journal of African
Studies, Vol. 25, 1991 - Issue 2, at https://www.tandfonline.com/doi/abs/10.1080/00083968.1991.10803893 (accessed
February 16, 2021).
175
… Steven Erlanger (2014) “The war to end all wars? Hardly. But it did change them forever,” New York Times,
June 26, 2014, at https://www.nytimes.com/2014/06/27/world/europe/world-war-i-brought-fundamental-changes-to-
the-world.html (Accessed February 16, 2021).
176 …..

Page 30 of 71
Hitler later derogated from the Munich Agreement in March 1939 when it invaded
Czechoslovakia. Later in September 1939, Germany invaded Poland, thereby leading to the
beginning of the war with Britain, France and their allies. When WW II broke out, there were two
(2) warring sides.

First, the Allies were at least three (3) major powers including Britain, France and the United States
of America (USA). The rest included the Soviet Union and China. In Africa, countries were
divided along the lines of who their colonial masters were. For instance, Belgian Congo, Gambia,
Kenya, South Africa, Uganda and Nigeria fought on the Allied forces side, since they were British
colonies and members of the Commonwealth.

Second, the Axis powers included Italy, Germany, Japan, Hungary, Romania, Slovakia, Croatia
and Bulgaria. The main objectives of this group were the destruction of Communism andexpansion
of territories through military conquest and superiority. The surrender of German forcesled to the
end of World War II in September 1945.

It has been argued that both the First and Second “World Wars” contributed significantly to the
upsurge of tribal or ethnic and territorial African nationalism in Kenya, Nigeria, Uganda and South
Africa. It is as an upsurge rather than an emergence of African nationalism as argued by Western
scholars, because nationalism among Africans and Kenyans in this case was always extant and
antedated colonialism.180 The major181 difference was its territorial scope once colonialism and
confined more tribes within larger territories…..

We adopt a three-pronged approach to conceptualizing and problematizing African nationalism.

First, by African nationalism, we mean that sense of shared identity common among Africans
owing to shared historical experiences such as (pre-colonial expression, cultural norms, racial
origins, and traditional social institutions).182

Second, it describes the shared liking and affinity by a people as regards their origin. Significantly,
this African nationalism was always present among the Africans even before the coming of the
colonialists as evident in the organized way of life of African communities that shared great
identity and defended their territorial and cultural integrity.183

177
Who were the aggressors? Who were the warring states on both sides? What was appeasement about? Which side
did the following countries fight on? Kenya, S. Africa, Nigeria, Cameroon, Senegal, Uganda? What were the key
terms of the armistice or peace treaty? Cf. victor’s justice. How did World War II relate to the Cold War in terms of
cause, execution and effect of World War I. Cf. DN Pritt’s pro-socialist analysis…..Were the Soviets always as selfless
or altruistic in World War II? as portrayed by some?
178
… Tom Matthews (2020) “What started World War Two? November 9, 2020, Historic Newspapers, at
https://www.historic-newspapers.co.uk/blog/what-started-world-war-two/ (Accessed February 16, 2021).
179
What is fascism?
Page 31 of 71
Some have argued that Africans learnt about warfare from these wars and used it against
colonialism.184

Taban Lo Liyong, a Sudanese literary critic and poet, characterized this state of affairs
poetically.185 He credited three (3) white men with the renewed struggle for independence and
nationalism among Africans, namely Fredrick Nietsche, Adolf Hitler186 and Karl Marx.187

Liyong was simply exhorting Nietsche for coming up with the idea of the superman or the master
race; Hitler for putting into action the idea of Nietsche in Nazi Germany based on a master race
ideology albeit in the most brutal of means, and Marx for fuelling the idea of emancipation of the
masses from economic exploitation by other human beings in the upper social class.

180
…Ibid.
181 …..
182
… Maurice N. Amutabi (2018) “Nationalism in Africa: Concepts, Types and Phases,” in: Oloruntoba S., Falola T.
(eds) Palgrave Handbook of African Politics, Governance and Development, Palgrave Macmillan, New York.
183
To summarise this paragraph into a three pronged typology and cross reference….
184
F. Cooper (1994) “Conflict and connection: Rethinking colonial African history,” American Historical Review,
1516-1545….
185
Cite historians, political scientists.....
186
Source...... John Cai Benjamin Weaver (2011) “Adolf Hitler’s account of the ‘Nation’ and ‘Nationalism’” E-
International Relations, May 16, 2011, at https://www.e-ir.info/2011/05/16/adolf-hitlers-account-of-the-
%E2%80%98nation%E2%80%99-and-%E2%80%98nationalism%E2%80%99/ (accessed February 16, 2021); cite
on Hitler....quote the poem on “they came for Jews, the trade unionists.” See Michael S. Rosenwald (2017) “”Then
they came for me”: A Hitler supporter’s haunting warning has a complicated history,” Washington Post, 19/8/2017,
at https:www.washingtonpost.com/news/retropolis/wp/2017/08/19/then-they-came-for-me-a-hitler-supporters-
haunting-warning-has-a-complicated-history/ (accessed October 6, 2020); Martin Pastor Niemoller in his speech said
“First they came for the Socialists, and I did not speak out/ because I was not a socialist/ then they came for the trade
unionists, and I did not speak out because I was not a trade unionist/ Then they came for the Jew, and I did not speak
out- because I was not a Jew/ Then they came for me, and there was no one left to speak out for me.” Cf. Ali Al-Amin
Mazrui, The Trial of Christopher Okigbo; Al-Amin Mazrui, Kilio cha Haki, A Cry for Justice; Abdilatif Abdala, Poet
in Politics; Shabaan bin Robert, Sauti ya Dhiki; Maseno School Play, 1986, No more shouting... Komoa
Lunatic Asylum... Shiraz Durrani, ‘Trade Unions in Kenya’s War of Independence’ Vita Books (August 3, 2018).
187
see also Chapter 5 (on Theory and Methodology of Comparative Constitutional and Administrative Law in
Kenya and Africa: Law and Sustainable Development) in Ben Sihanya (2021) CODRALKA 1

Page 32 of 71
Third, ….

What is not in doubt is that many Kenyans who went to the wars became more politically, socially,
technology, and culturally conscious. They became more conscious about the problem of racism
or kalaba (colour bar) and the desire for economic, political social and cultural freedom. They
learnt that the British were also vulnerable in war. They had behaved as if they were invincible.

The two World Wars helped in the deconstruction of the lie and myth that the White man was
superior, which also acted as a huge psychological boost for the African.188 The Africans also
internalized the British rhetoric fighting freedom against fascism including Nazism, yet Africans
were not free in Kenya.

The Africans also learnt war techniques and technologies in the two World wars which largely
played a role in the pre and post-1952 developments and conjunctions in Kenya…..189

2.9 The 1952 Conjuncture in Kenya

In 1952, the young and restless group of militants that had been circumcised in 1940 (the Group
of 40s or the “Anake A 40”) took up arms and went to Mt Kenya and the Aberdare, among other
forests. Mau Mau struggle was marked by, among others, the declaration of a State of Emergency
by Governor Evelyn Baring also the same day that the Kapenguria Six were arrested (October 20,
1952).190

Then followed the capture and hanging of Field Marshall Dedan Kimathi wa Waciuri (1956;
18/3/1957). This followed his sham trial in R. v. Kimathi wa Waciuri.191 Numerous people suffered

188
Ndabaningi Sithole (1968) African Nationalism, Oxford University Press, New York, (2nd Edition) , at 47. The
author notes, “this discovery that the white men also bled, were scared and got killed in the world wars, for indeed it
was an eye-opening discovery, had a revolutionizing psychological impact on the African.” (emphasis mine). Cf “the
rich also cry” a TV series in the early 1990s….
189
Some have contested this, for instance, Ngugi wa Thiong’o and Micere Githae Mugo (1977) The Trial of Dedan
Kimathi (a play), Pearson Education….
190
Legal instrument declaring the state of emergency; the emergency regulations. How many were arrested?
Restricted? The state of emergency was finally lifted in January 1960. Most detainees were released and restrictions
on Kikuyu movement ended, leading many to travel to the highlands seeking work. Cf- Ocampo Six; especially
misplaced analogy with Kenyatta at ICC.
191
See R. v. Dedan Kimathi wa Waciuri Her Majesty’s Supreme Court of Kenya at Nyeri, Criminal Case No. 46 of
1956 ............. Dedan Kimathi wa Waciuri v. Regina, Privy Council (Appeal). See also William R. Ochieng’ (1992)
“Dedan Kimathi: The real story,” Vol. 1(1) Maseno Journal of Education, Arts and Science 134.
Page 33 of 71
death,192 injury,193 torture,194 restriction of liberty,195 detention without trial, concentration camps,
destruction of and damage to property.

By 1958, rural Kikuyu and Embu were organizing once more under a new secret society known
as Kiama Kia Muingi (Society or Council of the People) opposing land consolidation and
representing a continued thread of support of Mau Mau.196

Significantly, the argument that Kenya’s Constitution was an entirely negotiated instrument is not
accurate. Nor is the argument that militancy alone brought independence.197 The literal
interpretation of Rudyard Kipling’s poetic argument that England should civilize the natives had
failed.198

The message of the “poet of imperial England” was taken up by those who the Poet urged the US
to take up the “burden” of the empire as had Britain and other European nations.

2.10 Mau Mau Phase I in Kenyan Public Interest Lawyering

The Mau Mau uprising presented one of the earliest contexts for strategic litigation or PIL.
Whatever the causes, historians are agreed that Mau Mau was the product of and led to
marginalization especially among the Kikuyu. Land deprivation, deprivation of indigenously
relevant education, and female circumcision.199

192
… Daniel Branch (2007) “The enemy within: Loyalists and the war against Mau Mau in Kenya,” 48(2) The Journal
of African History 291-315.
193
…Ibid.
194
Does Prof Caroline Elkins appreciate the implication of her exaggerated numbers on death toll and incarceration
in a Kenya where Mau Mau is used to post justice…post independence tribal colonization and hegemony… e.g. ESAO,
Matunda ya Uhuru?... Prof Elkins has been justifying her data and arguments….contra
Lonsdale…Anderson…Ogot…..
195
…Jeremiah O. Asaka (2015) Colonial Kenya Observed: British Rule, Mau Mau and the Wind of Change, Taylor
& Francis.
196
Charles Hornsby (2012) Kenya: A History since independence, I.B. Taurus & Co Ltd, London, New York, at 59.
197
Rudyard Kipling (1929) “The White Man’s Burden: The United States & The Philippine Islands, 1899,” Rudyard
Kipling’s Verse: Definitive Edition (Garden City, New York: Doubleday, 1929), at:
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=10&cad=rja&uact=8&ved=0CFsQFjAJahU
KEwjHxNP94rLHAhVpGtsKHaTBAAE&url=http%3A%2F%2Fctah.binghamton.edu%2FJusticeDocs%2Fwhite.m
ans.burden.doc&ei=5jfTVce5Dum07Aakg4MI&usg=AFQjCNEDA2jlN01BAST7tcgmW2pk4jGr4Q&sig2=7uqjAi
duWk9WbnlmkYBBBQ&bvm=bv.99804247,d.ZGU (accessed 18/08/2015). Was Kipling a parodist?
198
Ali Mazrui calls Kipling “the poet of imperial England” in The Africans: A Triple Heritage…..Some argue that the
Kipling poem was satirical…..To quote Kipling’s “The White Man’s burden…” and relevant parodies of it.
199
ES Atieno Odhiambo (2003) “Seven theses on Mau Mau,” in ESAO & Lonsdale (eds) Mau Mau and Nationhood:
The untold story; John Lonsdale (1992) “The moral economy of Mau Mau: Wealth, poverty and civic virtue in Kikuyu
political thought,” Unhappy Valley…; David Anderson (2011) “Mau Mau in the High Court and the ‘lost’ British
Empire archives: Colonial conspiracy or bureaucratic bungle?,”…; Waunyabari Maloba (1994) “Mau Mau and Kenya:
An Analysis of a Peasant Revolt,” East African Publishers……; Tabitha Kanogo (1987) Squatters and the Roots of
Mau Mau, 1905-1963, Series: Eastern African Studies…..
Page 34 of 71
And there is general consensus that Mau Mau’s outcome is manifested in continued deprivation of
the initial Kikuyu under class, as well as a disenfranchisement of a broader spectrum of Kenyans
on the claim that only certain individuals or groups fought for independence and are thus entitled
to the fruits of independence or Matunda ya Uhuru (in Swahili).200

Many Mau Mau supporters or suspects were subjected to mass killings, torture, detention without
trial, mass trials, concentration camps hence denial of basic liberties, property and security, and
further economic and political deprivation. The six leaders of the Kenya African Union (KAU)
consisting of Jomo Kenyatta, Bildad Kaggia, Richard Ramogi Achieng Oneko, Paul Joseph Ngei,
Fred Kubai and Kungu Karumba201 were arrested and put on trial for six months from November
1952 to April 1953.202

It was alleged by the settlers, Colonial Government and British Government that between October
12, 1950 and October 20, 1952, the six accused persons had been members of Mau Mau, an
unlawful society.”203 Kenyatta was also charged with managing Mau Mau. The other five were also
charged with assisting Kenyatta in the management of Mau Mau….

They were accused of conspiring together and with persons not before the court to commit felony
by physical force or by threat or intimidation to compel persons in the Kenya Colony to take an
oath to bind the persons to act in a certain way.204

KAU was the nationwide political party and therefore the arrest, prosecution and defence of its
leaders was a matter of public interest, even though KAU’s management had been ethnically and
culturally insular and its political programmes ineffective.

By September 1952, the courts had jailed more than 500 Mau Mau supporters, most with no legal
representation.205 A few lawyers came forward to offer PIL and pro bono legal service including

200
ES Atieno Odhiambo (2003) “Seven theses on Mau Mau,” ibid.
201
While the five were national officials, Karumba was a local (district) official of KAU.
202
….Paul Mwangi (2001) The Black Bar: Corruption and Political Intrigue Within Kenya's Legal Fraternity,
Oakland Media Services…. The book is largely anti-Moi, pro-Muite and not (necessarily) pan-Kenyan statement on
the role of the Bar in the (second) liberation of Kenya from KANUism. And KANUism was a Kenyatta-Moi construct
and title of his writing.
203
Dennis N. Pritt (1965) “The Kenyatta cases” in D. N. Pritt, The Autobiography of D.N. Pritt: The Defence Accuses,
Vol. III;….Montagu Slate, The Trial of Jomo Kenyatta (1955)…Contra Rawson Macharia, The Truth about the Trial
of Jomo Kenyatta, Lawrence & Wishart …..
204
Ibid. See also Fred Oluoch (2017) “The case that immortalised Kenya's ‘Kapenguria Six,’” EastAfrican, July 1,
2017, at https://www.theeastafrican.co.ke/magazine/Case-that-immortalised-Kenya-Kapenguria-Six-/434746-
3995106-s8sxn5z/index.html (accessed 28/10/2020).
205
John Kamau (2019) “Argwings-Kodhek: The politician history should never forget,” Daily Nation, Nairobi,
27/1/2019, at https://www.nation.co.ke/news/what-made-Argwings-Kodhek-special/1056-4952900-
gpsvmwz/index.html (Accessed 16/9/2019).
Page 35 of 71
Denis N. Pritt, AR Kapila and CMG Argwings Kodhek and what Pritt acknowledges as “junior
Kenyan lawyers.”206

The trial of the Kapenguria Six proceeded with heavy pressure from the British Government to
have the accused persons convicted.207 What were the offences? The Kapenguria Six were charged
with being members of and assisting in the management of Mau Mau. What was the law and
evidence? The Mau Mau at that time was an illegal society and had been proscribed by the colonial
Government. Who were the witnesses? Some of the three (3) key issues that negated public interest
in the trial included: the biased magistrate, the location of the trial and corruption of witnesses…

First, location of the trial in Kapenguria, a distant, inaccessible, “closed” district, rather than
Nairobi or Kiambu or Nyeri where the alleged offences reportedly occurred. Second, the
appointment and bribery of the retired Judge R.S. Thacker who was the trial magistrate. 208 And
bribing and perjury associated with the principal (or star) witness, Rawson Macharia, the self-
proclaimed bush lawyer209……At the end of the trial, the six were found guilty and sentenced to
seven years imprisonment with “hard labour.”210

On Appeal to the Kenyan Supreme Court (current High Court), Achieng Oneko was acquitted. But
they all served term all the same, with the five in prison and Oneko interned in a concentration
camp…211

For Kenyatta, there would be two years restriction which was partly in Maralal. He could be visited
and was released in August 1961.This is where Uhuru Kenyatta was “conceived” according to his
entry in a visitor’s book in 2012… He was born on 26/10/1961 and marked his 56 th birthday with
tailor made presidential election laws and election date.212

2.10.1 CMG Argwings Kodhek’s contribution as “Mau Mau lawyer”

Clement Michael George (CMG) Argwings Kodhek (CMG or Agwingi…) or Chiedo Mor Gem
was the first African Kenyan lawyer in Kenya. According to reports, after returning to Kenya from
Britain where he had been admitted to the bar, CMG had first sought employment at the Attorney-
General’s chambers but was given a salary which was “a third of what Europeans in the same
grade were getting.”213

206
See Regina v. Jomo Kenyatta & 5 Others, Criminal Case No. 1 of 1952; Jomo Kenyatta & 5 Others v. Regina
[1954] eKLR. D.N Pritt “The Kenyatta cases”….
207
Paul Mwangi (2001) The Black Bar, op. cit.
208
Montagu Slater (1975)The Trial of Jomo Kenyatta…, ibid; D.N. Pritt, “The Kenyatta Cases,”….ibid.
209
Macharia, The Truth about the Trial of Jomo Kenyatta, ibid; D.N Pritt, “The Kenyatta cases,” ibid.
210 …..
211
D.N. Pritt “The Kenyatta Cases…,” ibid.
212 ….
213
He waxed Shakespearean in responding to whites who sneered at African lawyers: “Woe and wilt upon Brittania,
that she chooses to export to most stupid and vile of her son, oh mistaken queen, come and evacuate these simpletons
Page 36 of 71
He reportedly protested and left to start his own law firm at Church House and was the only African
in Kenya with a law firm. CMG would start his practice by taking up the criminal cases which
Mau Mau fighters faced.

The pioneer Kenya historian Prof Bethwell Allan Ogot described CMG’s role in PIL in the
following words:

“Almost single-handedly, Argwings-Kodhek took on the formidable challenge of defending the

rights of ordinary Kenyans during this critical period,”214

Ogot adds:

“He argued that human rights are indivisible and universal and that freedom cannot be
appropriate in the West and inapplicable in Africa.”

To the Kenya Africans CMG was a liberator and a hero, Chiedo Mor(e) Gem (the frying soil of
Gem) as he was referred to by himself and his supporters. To the whites, CMG was an upstart and
a demagogue.

Shortly after the 1953 Lari Massacre, in which 150 Mau Mau loyalists, including Chief Luka
Kahangara, were killed, Argwings-Kodhek is reported to have helped 48 of those charged to
successfully appeal on a legal technicality.215

The Daily Nation would later describe CMG’s role thus:

“As the sole African criminal lawyer, he made it his duty to defend the Mau Mau, and he did it with
gusto traversing Nairobi and Central Kenya courts to the chagrin of colonial settlers and the
establishment.”

The Nation adds:

“The Western media hated him too and dubbed him the “Mau Mau lawyer” — which was supposed
to be demeaning.”216

who understand nothing of you, neither your jurisprudence nor your language;” See Coast week online….;… and 50th
Anniversary programme 29/1/19, Nairobi and on 3/2/19 in Gem Nyawara, Siaya County.
214
John Kamau (2019) “Argwings-Kodhek: The politician history should never forget, op. cit. See BA Ogot, A History
of the Luo Speaking People of Eastern Africa, 736-790. B.A. Ogot (1995) “Politics of Populism in Kenya 1963-1995,”
in B. A. Ogot & W.R Ochieng (eds) (1995, 1996) Decolonisation and Independence in Kenya, 1940-93, James Currey,
London, EAEP, Nairobi, & Ohio UP, Athens..
215
John Kamau, “Argwings-Kodhek,” ibid.
216
Ibid.
Page 37 of 71
CMG also represented Mau Mau suspect, (Yusuf) Waruru Kanja, the would be Nyeri Town MP
and Minister in the Kenyatta and Moi administration.217

Argwings-Kodhek was married to Mrs Mavin Tate Argwings Kodhek and later Mrs Joan Ominde
Argwings Kodhek and had children who would later serve in public life. CMG would later become
the first Member of Parliament for Gem in Siaya, serving from independence in 1963 to January
29, 1969 when he died following a “road accident.”218

Thus D.N. Pritt, CMG, A.R. Kapila and J.M. Seroney, among a few lawyers established the
tradition of public interest lawyering, in the narrow and broad sense that includes litigation, legal
advisory, using political process and activism.

2.10.2 Contribution of DN Pritt to PIL in Kenya

Denis Nowel Pritt was a British lawyer and politician. He was a self proclaimed “political
Lawyer,” a term he used to describe what is now called strategic or public interest lawyring.

Pritt moved from the right (Conservative or Torry Party) to the left inspired and occupied by the
Labour Party. He was influenced by neo-Marxist, social democratic, socialist and communist
movements. He later became independent after expulsion from the Labour Party…..219

What role did he play in the trial of the Kapenguria 6? In defending TJ and 6 AEMO members,220
DN Pritt’s representation of the Kapenguria 6 of Rawson Macharia (on a perjury charge), 221 and
the AEMO 7 (TJ Mboya and Co.) further illustrate the role of public interest lawyering in economic
and cultural struggle and emancipation. The challenge is addressing the intra and inter class as
well as inter ethnic or gender cleavages.

Thus, the legal representation by Pritt and his team helped justify grievances of the accused, of the
Mau Mau, and the cause for independence. However, it could not help prevent the future narrow
uses of Mau Mau or militant struggle to justify post independence hegemony...

217
Kanja had been charged under the Emergency (or anti Mau Mau) laws and regulations…
218
Toyin Falola & Atieno Odhiambo (eds) (2002) The Essays of Bethwell Allan Ogot: The Challenges of History and
Leadership in Africa, Africa World Press, Inc. Asmara, Eritrea, op. cit., at 346-347.
219
See D.N. Pritt (1965) From Right to Left, Lawrence & Wishart, London. Parastatals and bureaucrats”; See D.N.
Pritt (1966) “The Kenyatta Cases,” in D.N. Pritt (1966) The Defence Accuses: Part 3, Lawrence & Wishart, London,
Chapter 8…
220
See D.N. Pritt (1966) “Cases in Cyprus, Kenya, Uganda, Tanganyika,” in DN Pritt, The Defence Accuses: Part 3,
Chapter 13, 177-190, at 179-181; D.N Pritt (1966) Brasshats and Bureaucrats: Part 2, Lawrence & Wihart, London.
221
The public interest demanded that the profiteering villain Rawson be represented. The strategy was to seek
nullification or at least discredit the conviction of the Kapenguria 6…which had been mainly based on his evidence,
that he had now recanted on oath.
Page 38 of 71
2.11 Mau Mau Litigation Phases 2, 3 and 4 and PIL in Kenya and the UK
The Mau Mau revolt resurfaced in public interest lawyering in the 2000s and 2010s. First, a claim
for the Mau Mau killed or injured was brought in London through the law firm of Leigh Day
seeking compensation of 4.5M Pound Sterling.222

The third phase involved a further claim. The court ruled that at least 50 years had lapsed since the
alleged atrocities. That the matter can’t be litigated, there would be no fair trial since the defendants
may not easily defend themselves.

Contrarily, such arguments may stand with respect to vulnerable, weak, private defendants. Here,
the main defendant is the UK Government and Government officials who bore and bear official
and personal responsibility. They should be able to have evidence given the matter had never been
resolved223…

The fourth phase of the Mau Mau litigation involved the Law Society of Kenya (LSK) making a
claim in the Kenyan High Court against the Kenya Human Rights Commission (KHRC), the UK
law firm of Leigh Day, and Mau Mau War Veterans Association224

LSK made the claim as a public interest issue. They inter alia, faulted Leigh on the manner in
which the suit was handled. The legal fee stood at KES 769,680,000 out of the KES 2.8 Billion
paid out by the British authorities.

LSK argued that the amount is more than 40 per cent of the total benefits, which they claimed is
illegal and radical.225 Leigh was also faulted for “recruiting clients” in Kenya and practising without
a practicing certificate. The Court dismissed the claim on the ground that the public interestissue that
the LSK sought to protect was brought too late in the day; and that the advocate client privilege
between the Mau Mau victims and their lawyer protected them.226

The four phases of Mau Mau (MM) litigation address the issue of British reparation for colonial
atrocities against Mau Mau. What about the British and Kenyan Government reparations for
colonial and post colonial murder, assassination, deprivation of liberty, taxation, forced labour,
exclusion from public office or opportunity….227

222
Ndiki Mutua & Others v. Commonwealth Office, London No. HQ 09XO 2666 of 2012…
223
In any event, some UK Government officials sought to destroy evidence on 1950s……
224
Law Society of Kenya v. Martin Day & 3 others, Civil Case 457 of 2013 [2015] eKLR.
225
Isaac Ongiri (2013) “Law society sues firm over Mau Mau case,” Daily Nation, Nairobi, 7/12/2013, at
https://www.nation.co.ke/news/Law-society-sues-firm-over-Mau-Mau-case-/1056-2103426-clb0uhz/index.html
(accessed 20/9/19).
226
Law Society of Kenya v. Martin Day & 3 Others, ibid.
227
Compare the perspectives of Prof Carol Elkins, Harvard history professor and one of the researchers who supported
the Mau Mau case in London, in Carol Elkins “Britain has said sorry to the Mau Mau. The rest of the empire is still
waiting…”….
Page 39 of 71
The lessons learnt on the Mau Mau cases and in the PIL cases in the Kenyatta, Moi, Kibaki and
Kenyatta 2 administrations have been useful in securing the potential of PIL in matters concerning
diverse issues such as class, ethnicity or tribe and gender, as well as in criminal, civil and related
cases…

2.12 Kenya’s independence struggle: the radicals v. the constitutionalists v conjuncture and
synthesis
An accurate narrative must capture the constitutionalists’ and radicals’ perspectives on the struggle
and meaning of Kenya’s independence.

2.12.1 The radicals’ argument on Kenya’s Independence228

The radicals are the militants, politicians, activists, academics, scholars and commentators or
pundits who support(ed) the argument that Kenya’s independence was attained through violence
and militancy in Mt Kenya and independence was nyakwa-d or grabbed. These include Dedan
Kimathi wa Waciuri and his Mau Mau group, various supporters of Mau Mau. What of Elijah
Masinde’s Dini ya Musambwa, and other affilliated violent or militant groups?

The scholars or academics include historian Maina Kimani wa Kinyatti,229 novelist Ngugi wa
Thiong’o, poetess Micere Githae Mugo,230 historian David Mukaru Nga’ng’a, historian? Mwangi
wa Githumo,231 and younger Mau Mau or uthamaki commentators (?)

228
John Lonsdale (1992, 1997) “The moral economy of Mau Mau: The Problem,” in Bruce Berman & John Lonsdale
(eds), Unhappy Valley: Conflict in Kenya and Africa: Book Two: Violence and Ethnicity.
James Currey, EAEP & Ohio UP, Oxford, Nairobi & Athens, 265-314 (Chapter 11)
John Lonsdale (1992, 1997) “The moral economy of Mau Mau: Wealth, Poverty and Civic virtue in Kikuyu Political
thought,” in Berman & Lonsdale, ibid, 315-504 (Chapter 12);
ES Atieno Odhiambo (2003) “Matunda ya Uhuru, Fruits of Independence: Seven Theses on Nationalism in Kenya,”
in ES Atieno Odhiambo & J. Lonsdale (eds) (2003) Mau Mau and Nationhood: Arms, Authority and Narration, Ohio
University Press, Athens. Summarise ESAO theses in text. Ben Sihanya (2018) “The Kikuyu Uthamaki Constitution
versus the Kenyan Constitution and state,” Provisions include: Art 1 Kenya is an uthamaki state; Art 2: Kenya
leadership and the titles shall remain in the House of Mumbi. Art 3: Security, finance, education shall be controlled
directly and indirectly by a member of the House of Mumbi; Art 4: Employment, contracts, tender and even
“corruption” shall be controlled by co-ethnics, kins people, “our own” andu witu, mundu wa nyumba, and not (andu
waruguru)...
229
Kinyatti helped establish the Mau Mau Research Centre in the US. What are the program’s.participants? He used
to teach at Kenyatta University and fled after he was imprisoned for sedition. His eyesight was impaired in gaol.
230
Ngugi and Micere are creative writers and literary scholars. See Ngugi’s Detained and the preface to their drama,
The Trial of Dedan Kimathi (1976), in which they seek to correct, rewrite (or revise) Mau Mau history. They argue,
inter alia, that Mau Mau was the most glorious chapter in Kenyans’ struggle against foreign economic, political and
cultural domination; that it was a nationalist movement; that Kimathi never learnt military skills from the (White
man’s) Second World War, etc. Cf. Dinesh D’Souza “Two cheers to colonialism: How the West Prevailed”. ; Dinesh
D’Souza (2002) What’s So Great About America, Regnery Publishing, USA, Chap. II……..
231
Cf. the defensive Mwangi wa Githumo (1991)“The truth about Mau Mau movement: The most popular uprising,”
Transafrican Journal of History, 1-18. “Most popular” compared to other militant movements? Which? Or
constitutionalist political makeshifts? Popular also among victims of Mau Mau in Kikuyuland, and in the rest of
Kenya? Cf. the book, Mau Mau Children……Some were killed by Mau Mau fighters (had been) hired by those
Page 40 of 71
This group regards non-Kikuyu militants like Elijah Masinde and his Dini ya Musambwa as
irrelevant or unimportant.232

The argument is that the Kenya African Union (KAU) was taken over by the radical groups
(especially the Kenya Land and Freedom Army (KLFA) or the Group of 40 (Anake 40). They did
not want roundtable debates but took to arms in fighting through the Mau Mau in the forest and in
various sites in Kenya. The strategies and tactics included labour agitation, sabotaging White
projects, and guerrilla warfare.233

On October 20, 1952, some of the African leaders were arrested as Sir Evelyn Baring declared a
state of emergency, which many White settlers had demanded for some time.234 The Kapenguria6
were arrested and tried. Who were they and what were their actual roles in the independence
struggle? In the post-independence dispensation? The Kapenguria trial was the closest point of
convergence between the Mau Mau militants and the constitutionalists. I address at least three (3)
key issues.

First, of the Kapenguria Six, the five (5) were being charged with belonging to and managing the
Mau Mau, an illegal society.235 The other five were charged with being members of and assisting
in the management of Mau Mau.236

Second, the Kapenguria Six denied the charge and argued that they wished to secure independence,
“by constitutional means” not “military means” as alleged by the colonialists. Jomo Kenyatta was
thus quoted during the trial:

“I have no room in my heart for violence or the use of force; even in my school I reprimanded any
teacher who used it on children. I don’t believe in violence.”237

interested in illegally acquiring the land of victims… See…. Mau Mau killed… Ambrose Ofafa….Tom
Mamboleo…..Senior Chief Waruhiu wa Kung’u….would their supporters regard Mau Mau as “the most popular?”
232
Cf. Ben Kipkorir (1980) Biographical Essays on Imperialism and Collaboration in Colonial Kenyaa, Kenya
Literature Bureau…….
233
….Cite historians, biographies, memoirs, intelligence reports.. Corfield Report on Mau Mau insurgency, 1960
Books by participants like Kimathi, Kaggia,… Karari wa Njama & Daniel Barnett (1966) Mau Mau from
Within; Waruhiu Itote (“General China”) (1967; 1975) Mau Mau General; Gucu Gijayo (1979) We Fought for
Freedom; Josiah Mwangi Kariuki (1963) Mau Mau, Detainee: The Account of a Kenya African of His Experiences in
Detention Camps, 1953-1960, Oxford University Press; Rosberg & Nottingham; David Anderson, Caroline Elkins;
ESAO (1981) “Who the Mau Mau;” Historical Association of Kenya (HAK); ESAO (1981) “Mau Mau in the
international press,”…. HAK… etc.
234
…Gary Wasserman (1974) “European settlers and Kenya colony: Thoughts on a conflicted affair,” 17(2), African
Studies Review, 425-434.
235
Mau Mau had been proscribed under the Emergency Regulations 1950….
236
See Ben Sihanya (2019) “Public interest lawyering and constitutional reform in Kenya and Africa since CMG
Argwings Kodhek,” presentation at the University of Nairobi and Oxfam International Conference on Strategic and
Public Interest Litigation, October 204, 2019, revised as Chapter… in CODRALKA 3.
237 ……

Page 41 of 71
Despite such affirmations and defence, the Court argued that the Kapenguria Six used their
positions at the Kenya African Union (KAU) to mask their illegitimate activities in the agitation
for independence.

Third, the key strategic support for the Kapenguria Six came from the constitutionalists, including
TJ Mboya and lawyers including Denis Pritt, A.R. Kapila, CMG Argwings Kodhek, among others.
The masses who had been split and the question of militancy or then Mau Mau before the arrest
and trial generally supported the Kapenguria Six.

The emergency regulations confined the Kikuyu Embu Meru (KEM) to their homelands. They and
others needed passes to travel... This largely restricted their movement and contribution towards
agitating for the release of the Kapenguria 6 and related liberation struggles.238

The Kenya African Union (KAU) and nationwide political parties were prohibited between 1952
and 1960.239

Emergency restrictions under the State of Emergency were lifted in January 1960. 240 But the
prohibition of Mau Mau lasted much longer.

How did Mau Mau influence the struggle in other African states, especially with whites like South
Africa, Zimbabwe (Southern Rhodesia),241 Algeria,242 Namibia (South West Africa)?243 Generally,
the liberation struggles across Africa directly contributed to the hastening of the declaration of
independence of the African states.

Since 1960, there has been a more controversial debate regarding the role of the radicals (Mau
Mau, etc) as well as the constitutionalists, in the attainment of independence.

238
See David Percox (2012) Britain, Kenya and the Cold War: Imperial Defence, Colonial Security and
Decolonisation, I.B Taurus, London, New York; Muthoni Likimani...Pass No...WR Ochieng (1984) “The ghost of
Kenyatta in Ngugi’s fiction,” HAK; ES Atieno Odhiambo (1991) “The production of history in Kenya: The Mau Mau
debate,” Vol. 25, No. 2, Canadian Journal of African Studies; op. cit.; William R. Ochieng (1984) “Kenyatta and Mau
Mau...” ESAO (1991 “Kenyatta and Mau Mau.” C. Odegi Awuondo (1992) “The rise of the cheering crowd,” Fiction
and Kenya’s Political History...
239
Verify…. See Ben Sihanya (due 2021) “Human Rights and the Bill of Rights in Kenya and Africa: Electoral
System, Parties, CSOs, Business Organisations, Tax Justice and Welfare Association,” Chapter 17, of CODRALKA
1.
240
…Gwendolen Kournossoff (1959) The Underlying Causes of the 1952 Emergency in Kenya and a Consideration
of Some of the Immediate Results, Doctoral dissertation, University of British Columbia.
241
…The Zimbabwean liberation struggle, just like Mau Mau, involved agitation for land. See John Lonsdale (2009)
“Mau Maus of the mind: Making Mau Mau and remaking Kenya,” Journal of African History, Cambridge University
Press.
242
…See Adekson J. Bayo (1981) “The Algerian and Mau Mau revolts: A comparative study in revolutionary
warfare,” 3(1) Comparative Strategy, 69-92. Mau Mau and the Algerian liberation struggles contributed directly to
the independence of African countries from the colonial masters….
243
…ES Atieno Odhiambo (1991) War and Peace in Kenya, 363….
Page 42 of 71
Curiously, Prof Macharia Munene made the argument linking the cases facing President Kenyatta
and DP Ruto at the International Criminal Court (ICC) with the pre-independence Kapenguria
trials. He drew a similarity of the Hague as the new Kapenguria. 244 The comparison is misplaced
and spurious. The comparison is an affront to the Constitution and the direct and indirect victims
of post-election violence (PEV).

There are at least six (6) reasons for this. First, the Kapenguria 6 and the Mau Mau confronted a
racist, colonial Government. The ICC case raised issues about a tribal Government using
manipulation against non-Kikuyus to rig elections and stay in power.245

Second, unlike the ICC cases, the trial of the Kapenguria 6 was based on colonial land oppressive
law. The ICC cases were based on the Constitution of Kenya, and the statute of the ICC which
Kenya had negotiated, signed, ratified, and enacted as the International Crimes Act, 2008.246

Third, there was overwhelming evidence on the ICC cases. Part of that evidence was in the ICC
website, and included Dr Peter Mwangi Kagwanja’s articles on the criminal and political users of
Mungiki. The main challenge was that witnesses kept dying or disappearing mysteriously (and
clearly not because of climate change)?

In the Kapenguria 6 case, most of the evidence was fabricated, including by bribing Rawson
Mbugua Macharia who perjured himself. Mr Rawson Macharia swore an affidavit that he was
bribed with the equivalent of KES 6 million… to falsely testify against the Kapenguria 6. He was
the main witness during these trials. Mr Macharia even claimed that he was forced to drink human
blood at Kenyatta 1’s house as part of the oath taking.247

Fourth, most of the ICC suspects controlled the machinery of Government at one point or another
before or during the trial and had unfair advantage against the “victims” Uhuru Kenyatta and
William Ruto were running for elections as President and the Deputy President, respectively…
…….

Fifth, most of the ICC suspects used state resources to defend themselves, unlike the Kapenguria
6…….Sixth, for most of the ICC suspects, lawyers, supporters and the Hague were more easily
accessible than what the Kapenguria 6 had faced. The Kapenguria 6 were represented first by Peter
Evans who was harassed and later deported by the colonists. Later on, Denis Nowell (DN) Pritt

244
Stephen Muthini (2013) “History don says Kenya ICC cases similar to Kapenguria trials,” Daily Nation, Nairobi,
6/12/2013, at http://mobile.nation.co.ke/counties/ICC-cases-similar-to-Kapenguria-trials/-/1950480/2101692/-
/format/xhtml/item/0/-/14qo6pq/-/index.html (accessed 21/05/15).
245
See Commission of Inquiry into the Post-Election Violence (CIPEV) (the 2008 Waki Report)….
246
ESAO…; W.R. Ochieng…
247
Montagu Slater (1955) The Trial of Jomo Kenyatta…; Rawson Macharia (1991) The Truth about the Trial of Jomo
Kenyatta, Longman Kenya.
Page 43 of 71
represented the defence, assisted by lawyers Fitz De Souza, Jaswant Singh, Chaman Lall and
Achoro Ram (AR) Kapila.248 ........ So, was Jomo Kenyatta guilty? Not guilty? Innocent?

2.12.2 The Constitutionalists or Liberals arguments on the Struggle for and meaning of
Independence249
Who were or are the constitutionalists? What did or do they stand for? What did they do?

These are the political leaders, as well as the intellectuals, commentators, analysts, and pundits
who advocate(d) peaceful and negotiated constitutional change. They include Kenyatta, TJ Mboya,
Oginga Odinga, Ronald Ngala, Daniel Arap Moi, Masinde Muliro, Martin Shikuku, Paul Ngei,
Lawrence Sagini, among others.

The intellectuals in this group include Professor Yash Ghai, the late HWO Okoth-Ogendo, JB.
Ojwang, BA. Ogot, ES. Atieno Odhiambo, Tabitha Kanogo, John Lonsdale, Godfrey Muriuki,
Wunyabari Maloba, the late Dr Ben Kipkorir, Profs Henry Mwanzi, Gideon S. Were, and William
R. Ochieng, among others.

The constitutionalist’s argument focus on constitutional development or advance on at least three

(3) major founts. First, peaceful agitation, through petitions and memoranda and repatriation on
the land question. And second, broader political participation through welfare and tax payer
associations; and on party formation and a parliamentary representation. Third, broad based
constitutional reform, and political economy in Kenya 250

2.13 Contesting the meaning, uses and abuse of the radicals’ arguments on Kenya’s
independence
How have the Kenyatta (Kamaliza), Moi, Kibaki and Kenyatta (Kamwana) regimes used and
abused Mau Mau in the reconstruction of the Kenyan political economy, cultural politics,
constitution and state? Only (political) historians have consistently debated the role of the Mau
Mau, violence and military in the reconstruction of Kenya.

248
Fred Oluoch (2017) “The case that immortalised Kenya’s ‘Kapenguria Six’,” EastAfrican, July 1, 2017, at
https://www.theeastafrican.co.ke/tea/magazine/the-case-that-immortalised-kenya-s-kapenguria-six--1368664
(accesed July 23, 2021).
249
On the various dimensions of and contributions to the decolonisation, nationhood and post-independence process
and discourse, see BA Ogot & WR Ochieng (eds) (1995) Decolonization and Independence in Kenya, 1940-1993
James Currey, London, EAEP, Nairobi, Ohio UP, Athens. See also Chapter 2.4 above….
250
These are discussed in Chapter 4 of CODRALKA 1 on participation and representation in the (post) colonial
Constitution in Kenya and Africa.
Page 44 of 71
Historians have done this as individuals and within the framework of the Historical Association of
Kenya (HAK). The most remarkable debates are Ogot’s Presidential address to the Historical
Association of Kenya (HAK) in 1981 and1984 proceedings which were dedicated to Mau Mau;
Jomo Kenyatta’s role in it and Ngugi wa Thiong’o’s interpretation of Mau Mau in his novels,
plays, essays,251 and novels.

First, some constitutionalists, liberals and moderates argue that Mau Mau was a peasant revolt
against White domination and exploitation; and sought the recovery of lost lands.252

Second, some scholars like Prof Maina Kimani wa Kinyatti, Prof Ngugi wa Thiong’o Prof Micere
Githae Mugo argue that Mau Mau was a freedom struggle to attain Kenya’s - not just Kikuyu –
land, liberty, (including the right to female circumcision) and Karing’a or independent schools.253
That was the peak of Kenya African nationalism.. The “most popular uprising”…… 254 Kinyatti
and others have even edited or revised some Mau Mau songs to read “Kenya” instead of
“Kikuyu.”255

Remarkably, Kimathi University established Mau Mau research and archiving in the context of the
50th anniversary of Kenya’s independence.256

Third, others contend that Mau Mau was an intra-ethnic (Kikuyu) civil or class war between the
landless (ahoi), the exploited and frustrated, or essentially the Nyeri Kikuyu and the Meru, on the
one hand, and the homeguards of the White man, families of colonial chiefs and other collaborators
of the White man, or essentially the Kiambu Kikuyu, etc on the other.257Reconstruct for clarity,
brevity.258

251
ES Atieno Odhiambo (1991) “The production of history in Kenya: The Mau Mau debate,” Vol. 25, No. 2, Canadian
Journal of African Studies; op. cit. ES Atieno Odhiambo (1991) Kenyatta and Mau Mau, 147-152; ES Atieno
Odhiambo (2003) “Seven theses on Mau Mau: Matunda ya Uhuru,”….; William Ochieng (1985) “The Ghost of Jomo
Kenyatta in Ngugi’s fiction,”? Mwalimu Education Supplement, 2-6. (on Ngugi...and on Kenyatta). Odegi Awuondo
(1992) “The rise of the cheering crowd,” Fiction and Kenya’s Political History…(on Ngugi, MM, Moi. )….
252
Cf. Tabitha Kanogo (1987) Squatters and the Roots of Mau Mau, 1905-63, EAEP, Nairobi (reprint 1993)…..
253
…See Maina wa Kinyatti (1991) Mau Mau: A Revolution Betrayed, Mau Mau Research Center.
254
See Mwangi wa Githomi (1991) “Mau Mau: The most popular uprising in Kenya,” op. cit.…… Popular as
compared to what? Constitutional approach? What could progressive human rights activists and families of those
killed bum mau mau say? E.g. Ofafa, Mbotela, Waruhi….
255
Cf. Ngugi wa Thiong’o (1981) Detained: A Writer’s Prison Diary, East African Publishers, Nairobi; republished
as Ngugi wa Thiong’o (2018) Wrestling with the Devil: A Prison Memoir Atieno Odhiambo, Ogot (1972) “The
revolt of the elders: an anatomy of the loyalist crowd in the Mau Mau uprising 1952-1956,” in B.A. Ogot (ed) (1972)
Politics and Nationalism in Colonial Kenya, East African Publishing House, Nairobi. [quote some of the sayings in
original by Ogot]; and as rendered by Kinyatti.
256
See Dedan Kimathi University website, at https://www.dkut.ac.ke/index.php/news/47-latest-news/308-mau-mau-
education-centre-workshop (accessed 28/6/2019). ......
257
Cf. William Ochieng (1972) “Colonial chiefs: Were they primarily self-seeking scoundrels?” in B.A. Ogot (eds)
(1972) Politics and Nationalism in Colonial Kenya, East African Publishing House, Nairobi, 46-70.
258
On chiefs who were the collaborators...which location See Benjamin Kipkorir (1980) “The functionary in Kenya’s
colonial system,” Biographical Essays on Imperialism and Collaboration in Colonial Kenya, 1-14. ……; cf. ……
Page 45 of 71
Fourth, historians like the late Dr Ben Kipkorir and Dr Henry Mwanzi contend that national
freedom strugglers, unlike Mau Mau, left the forest for State House straight away.259 Meaning
those fighting for national independence are the ones who eventually become the national leaders.

Some illustrate this thesis by citing Yoweri Kaguta Museveni’s NRM/NRA, Paul Kagame’s
Rwanda Patriotic Front (RPF) which led the process in the context of the genocide in Rwanda,
respectively. Others also argue that in the same vein, DRC rebels, under the late Laurent Kabila,
etc marched to power (after mobutu forces were defeated and after he had refused to renegotiate.
They argue that Mau Mau was defeated and its leaders hanged by 1956.

They stress that Mau Mau did not immediately lead to Kenya’s independence because it was
defeated 7 years before independence. To them, Mau Mau may have remotely contributed to
independence, but was not the decisive or definitive cause of independence. Had it been MM,
independence would have been altered in 1957 or 1958, not 1963.

Fifth, it is also argued that Mau Mau had no programme on the meaning of independence or on
governance, or on the management of national resources. An example is the fact that MM leaders
had no (published) plan on how they wanted to administer or manage land and power had been
much occasioned by the Jomo Kenyatta (K1) and subsequent administrations including K+ as well
as among majority of Africa’s failed states. A recent case study can be argued to be the Republic
of South Sudan.

Sixth, there were many other protest and militant movements in Kenya besides Mau Mau among
the Nandi, Luhya (e.g Dini ya Musambwa), Maasai, Luo (cf. Piny Owacho Movement or voice of
the people movement).

Seventh, even within Mau Mau, many other ethnic groups and individuals contributed to the
militancy.260 E.g. a Turkana was among the Mau Mau detainees beaten to death in the Hola
Massacre of 1959.

Eighth, that Mau Mau killed more Kenyan Africans than Whites (e.g. Councillor Ambrose Ofafa
after whom Ofafa Jericho….. is named). Some have asked: who and how would Mau Mau govern
given that they were killing and polarising or dividing Kenyans? For instance, the State of
Emergency in 1952 was largely imposed by Sir Evelyn Baring after the shooting of Paramount
Chief Waruhiu in the mouth by the Mau Mau.261

(…) Muganda K’Okwako of Alego… and Senior Chief Amoth Owira of Alego and Chief Melkizedek Nindo
Nyangaga of Seme. A compiled list was published by the Kenya National Archives, at
https://artsandculture.google.com/exhibit/paramount-chiefs/KgIihw-NY_C6Kw (accessed June 24, 2021).
……….………
259 …
260
See BA. Ogot,......... ES Atieno Odhiambo…., John Lonsdale (1990) “Mau Maus of the mind: Making Mau Mau
and remaking Kenya,” 31(3) Journal of African History, 393-421. …..essays in Mau Mau and Nationalism……
261
…… Louis Leakey (2013) Mau Mau and the Kikuyu, Routledge.
Page 46 of 71
At the end of this, some people were not accepted in Government. There were arguments that only
the Kikuyu were in Mau Mau (leadership). This was part of the claims during the post-Mau Mau
era including claims for exclusionary and disproportional development and allocation of resources.
These fostered resentment of the Kikuyu by other ethnic groupings.

What would Kimathi do with power? Was his declared being the first Prime Minster an end in
itself for him? Given the limited tolerance that led to splits with (e.g) Kenya African Union (KAU),
Kenyatta and within Mau Mau General Mathenge faction), how would Kimathi or Mathenge lead
a multi tribal independent Kenya? Some authors argued that despite Dedan Kimathibeing a Kikuyu,
he advocated for a nationalist struggle.262

In 1984 Kenya Historical Association of Kenya (HAK) organised a conference on the role of
Kenyatta and Mau Mau in historiography. Who was Kenyatta? A fire eating revolutionary or Black
Moses. Ngugi portrayed Kenyatta in Weep Not Child? Did Kenyatta change from a revolutionary
to a conservative opportunist as Ngugi argued in Detained?263

Others argue that Kenyatta I never founded anything: not KCA, not KAU, not KANU, but was
always a manipulative and opportunistic, follower. But his two (2) strengths appear to be first,
reminding Kenyans of Nkrumah’s slogan: seek ye first the political (not economic) kingdom….
And second, preaching the lessons he learnt from Pan Africanists like George Padmore Peter
Abrahams, Francis Kwame Nkrumah 264

The emphasis was that power was in the UK, therefore, nationalists should focus on addressing
metropolitan and colonial Government matters, not the DCs and chiefs 265

There is debate that the UN, USA, and the Soviet etc contributed to decolonisation and
independence in Kenya and Africa. America’s interest was mainly because colonial states like
Britain were securing undue economic advantage in terms of access to raw materials and markets
in the colonies. Relatedly, the US had had an experience with the desire and struggle for freedom,
related to America’s struggle for independence,266 and the civil rights movement.267

Independence was attained partly because it had become uneconomical to govern the empire. It
was particularly expensive to continue governing Kenya, a resistive people.

262
Shamsul Alam (2007) “Rebel yell: The Field Marshal’s story,” in Rethinking Mau Mau in Colonial Kenya, Palgrave
Macmillan, New York.
263
Cf. Ngugi (1982) Detained; republished as Ngugi wa Thiong’o (2018) Wrestling with the Devil: A Prison
Memoir…. Op. cit. See also Weekly Review report on Historical Association of Kenya Conference in the early 1980s…
264
Cf. Steve M. Mutie, et al. (2015) “Jomo Kenyatta’s speeches and the construction of the identities of a nationalist
leader in Kenya,” 5:2 English and Literature Studies, Canadian Center of Science and Education …
265
Cf. Chief’s Authority Act, Cap 128.
266
… George P. Shultz (1985) “America and the struggle for freedom,” 85 Department of State Bulletin, 16-22.
267
Issues, actors, leadership years, collaborators....
Page 47 of 71
Constitutional historians agree that Mau Mau constituted to the difficulties and cost for the British
Government and settlers to continue ruling or exploiting Kenya. The lesson is that civil
disobedience, protests, boycotts and mass action can lead to the attainment of freedom.268

E.S. Atieno Odhiambo emphasizes numerous points, among them:

First, who were the main (not the only) protagonists in the Mau Mau war? The main actors in this
war were the Mau Mau fighters and their families and the British settlers in Kenya under the
direction of the Governor of the Colony who was a proxy of the Queen of England…..269

Second, who were the main winners and main (not the only) losers in the immediate aftermath of
Mau Mau? The main “winners” were the collaborators, including colonial chiefs, homeguards,
informers, religious leaders, …and their sons,270 daughters, grandchildren, son-in law. This was
because they directly inherited the reigns of power.

Second, the value and structure of government had supported and needed their political ideology
and orientation, religious faith as well as mission (and secular) education. 271 Qualification for
office would be based on certificates from Alliance, Mang’u, Makerere, Fort Hare institutions and
not machetes or pangas or experience in forests of Mt Kenya or the Aberdares… 272

Third, how many Mau Maus were there?273 There were many permutations of the Mau Mau war….
The fighters for land and freedom (or wiyathi…); opportunities…. The statistics or related data are
controversial… The number of Mau Mau fighters has not been accurately identified. However, it
was reported that at least 11, 000 Mau Mau fighters were killed by the British during the Mau Mau
crackdown. The Kenya Human Rights Commission (KHRC) argued that more than 160, 000
Kenyans were detained, while more than 90, 000 were tortured and killed.274

Fourth, how has Mau Mau been used to entrench domination or hegemony in post independent
Kenya: what Ben Sihanya calls ethnic apartheid, ethnic colonialism, ethnic clones and cloning in

268
Kenyan resistance in 1980s leading to saba saba (seventh of July) 1990. As JFK stated, “if you make peaceful
change impossible, you make violent change inevitable…” also see Eugene Kamenka (1983) Portable Karl Marx ..”
Quote….
269
… Tabitha Kanogo (1987) Squatters and the Roots of Mau Mau, 1905-63, East African Publishers.
270
For instance, during the emergency, some children of loyal colonial chiefs were taken out of the theatre of conflict
to study at Fort Hare (Charles Njonjo) or Makerere and the London School of Economics LSE (Mwai Kibaki)…..
271
See the late Dr Benja(min) Kipkorir on the influence of Alliance High School in Post independence economy:
Benjamin Kipkorir (1970) The Alliance High School and the Origins of the Kenya Africa Elite, 1926-1962, a Doctoral
thesis, at https://doi.org/10.17863/CAM.31125 (accessed June 22, 2021) See the motif: Kipkorir: their “parents had
seen far”…. They built for the future.
272
….Ibid.
273
Cf. John Lonsdale (1990) “Mau Maus of the mind: Making Mau Mau and remaking Kenya,” Vol. 31, No. 3,
Journal of African History….op. cit.
274
BBC (2011) “Mau Mau uprising: Bloody history of Kenya conflict,” BBC, April 7, 2011, at
https://www.bbc.com/news/uk-12997138 (accessed June 24, 2021).
Page 48 of 71
Kenya.275 To illustrate this, upon the attainment of independence, the various ethnic groups in
Kenya found expression in the major political parties of the time with KANU representing the
larger ethnic blocs and KADU representing the minority ethnic groups.

While President Jomo Kenyatta was expected to promote national unity and cohesiveness, he
engaged in a consolidation of his political base with the Kikuyu elites in what was formerly the
Central Province, and improving on the infrastructure network that had been developed by the
colonial administration.

The subsequent President Daniel Moi did not help matters as he reinforced and continued the trend
by officially entrenching political patronage and ethnic jingoism.276 This was evident in the
significant channeling of funds and projects to his native Rift Valley region (formerly province)
and giving of plum jobs to Kalenjins.277

Kibaki and the Government re-enforced Mau Mau practice by entertaining Lemma Ayanu, an
Ethiopian peasant, as General Mathenge.278

Mau Mau compensation case was the product of a long quest. Is it Mau Mau compensation or
British compensation to the tortured freedom fighters countrywide? Ms Miriam Muthoni wa
Mathenge stated that she was gifted a 55- acre land for her participation in the struggle for
independence by President Jomo Kenyatta.279

She said that the Government had not really done enough to recognize and appreciate the role of
freedom fighters in the struggled for independence in Kenya. Ms Mathenge was quoted saying:

“to date, I have no access road to my home, neither do I have access to piped water in my
homestead. We rely on rainfall and a seasonal stream on the farm.” 280

275
See ES Atieno Odhiambo (1995) “The formative years, 1945-55,” in B.A. Ogot & W.R Ochieng (eds) (1995, 1996)
Decolonisation and Independence in Kenya, 1940-93, James Currey, London, EAEP, Nairobi, & Ohio UP, Athens;
E.S. Atieno Odhiambo & John Lonsdale (eds) (2003) Mau Mau & Nationhood: Arms, Authority and Narration, Ohio
University Press….
276
Githu Muigai (1995) “Ethnicity and the renewal of competitive politics in Kenya” in Harvey Glickman, ed., Ethnic
Conflict and Democratization in Africa (Atlanta: ASA Press) at p. 162………
277
Nelson Kasfir (1992) “Elections in Kenya,” Africa Demos, July & August 1993, at 11.
278
W.R. Ochieng…; Ngugi wa Thiong’o (1977) Petals of Blood. Nairobi, EAEP; Ngugi, Kinyatti, Micere Mugo…
et al…..focus on Kikuyu Mau Mau heroes who had some national statue or name recognition. …..
279 ..........
Daniel Branch (2011) “Conclusion: The Leopards and the Goats in Kenya,” Yale University Press, 287-300.
280
David M. Anderson (2011) “Mau Mau in High Court and the ‘lost’ British Empire archives. Colonial conspiracy,
or bureaucratic bungle?” 39, Journal of Imperial & Commonwealth History, 699-716, op. cit. Cf. Kibaki and the
Government entertaining Lemma Ayanu as General Mathenge…. See Irene Mugo (2020) “We were betrayed, says
veteran of Mau Mau war,” Daily Nation, October 20, 2020, Nairobi, at https://nation.africa/kenya/news/we-were-
betrayed-says-veteran-of-mau-mau-war-2485314 (accessed October 28, 2020).
Page 49 of 71
This is despite the fact that some of the Mau Mau went through harrowing ordeals to liberate
Kenya from colonialist including torture, extrajudicial killings, murder, intimidation, rape and
marginalization.

She was further quoted saying:

“We were beaten up like animals. We witnessed deaths in the forest and maiming of people who
would be left to be eaten by dogs ... it was terrible and we suffered.”281

Can the Kenyan and British Governments facilitate the compensation of victims of forced labour
etc? The Constitution and transnational law recognize these rights, and the role of victims in
criminal and civil reparation processes. Moreover, can the British acknowledge and apologize for
these colonial injustices too?282

Could Mau Mau users and abusers accept that all Kenyan citizens deserve equity, equality, non
discrimination, non domination, non subordination and affirmative action, as appropriate? Can
President Kenyatta as President and as co-perpetrator and beneficiary apologize to non-Kikuyu
Kenyans for the post independence and post colonial oppression, exploitation, inequity, inequality,
discrimination, domination and subordination?283

A section of the Mau Mau veterans have faulted the erection of the Mau Mau memorial statute at
Uhuru Garden’s, Nairobi. Among these critics was Gitu Kahengeri who suggested that the Mau
Mau veterans ought to have been hosted at the State House for a national celebration.284

I argue that Mau Mau is part of Kikuyu ethnic (neo)colonialism or ethnic capitalism (Ghai) and
ethnic aristocracy (Kagwanja).

There are cases and incidents of ethnic inequality, inequity discrimination and lack of decent
affirmative after independence: madharau. For instance, the court in Fernandes v. Kericho Liquor
Licensing Court (1968) opined that the lack of citizenship was not a ground for the revocation and
or non-renewal of a liquor license. Also, in Madhwa and Others v. City Council of Nairobi (1968),

281
Ibid.
282
Caroline Elkins (2005) Britain’s Gulag: The Brutal End of Empire in Kenya, Pimlico, London.; David Anderson
(2005) Histories of the Hanged: The Dirty War in Kenya and the End of Empire, W. W. Norton….; B.A Ogot review
of both books and also in B.A. Ogot (eds) “Britain’s Gulag,” review of the Histories of the Hanged: Britain’s Dirty
War in Kenya and the End of Empire in Kenya, by Caroline Elkins, Journal of African History, 46, No. 3 of 2005…
283
The TJRC Report recommended that an apology be made by the President on behalf of the Government for all
historical injustices. KNCHR report on 2017 electoral violence launched on 27/11/2018 sought President Kenyatta’s
apology limited to the subject of the report……..
284
Moses Nyamori (2015) “Mau Mau memorial unveiled in Nairobi,” Standard Digital, Nairobi, 13/9/2015, at
http://www.standardmedia.co.ke/article/2000176118/mau-mau-memorial-monument-unveiled-in-
nairobi?articleID=2000176118&story_title=mau-mau-memorial-monument-unveiled-in-nairobi&pageNo=2
(aaccessed 21/9/2015)….
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the court held that a notice by the Nairobi City Council to Asian traders to vacate their stalls was
discriminatory. 285 Cf. Micere Githae Mugo, “I took my son by the hand...”286; ESAO (2003)
“Matunda ya Uhuru,The fruits of independence”……287

I took my son by Micere Mugo.....

Towards sunset/ we set out
for home/ my son’s little/
warm hand/ inside mine
he in his world/ me in mine

Mother, he asked

Do we have/ matunda ya uhuru

in our hut?

I laughed foolishly

Mother!/ Yes son Do

we have/ some?
Silence

May I eat one/ When we get there?

Move on son/ darkness is looming fast
around us.288

285
Fernandes v. Kericho Liquor Licensing Court [1968] EA 640; Dodhia v. National & Grindlays Bank Ltd and
Another [1970] 1 EA 195;. Madhwa and Others v. City Council of Nairobi [1968] EA 406. See also post 1970 cases
on tribal inclusion and non discrimination against tribal hegemony (or domination) and subordination IFLAC these
cases here briefly and in detail under the Bill of Rights and Human Rights,…See also Chapter 17 of CODRALKA
2…cross reference.
286
Micere Githae Mugo (1973) “I took my son by the hand,” in David Rubadiri (ed) (1989) Growing Up with Poetry:
An Anthology for Secondary Schools, Heinemann Educational Books Ltd, Oxford, at 77-78,at
http://innovativelawyering.com/blogs/94-i-took-my-son-by-the-hand. Also Jonathan Kariara and Ellen Kitonga (eds)
(1976) An Introduction to East African Poetry, OUP, Nairobi....Micere Mugo My Mother’s Song and Other
poems.......Ben Sihanya (forthcoming 2023) Intellectual Property and Innovation Law in Kenya and Africa (IPILKA
3). Poems, songs and music in Kenyan and African creativity, copyright, cultural politics, political economy and
constitutional democracy; Rudyard Kipling, The White Man's Burden (parodies); Psalm 23, King James Version,
parodies: Tim Wangusa, on Obama Admin, on Kenya by BS; Alexander Pope, too little education is dangerous, drink
deep from the Pyrhean Spring or taste not; Jonathan Kariara, Eating a Bull; Francis Davis Imbuga, Betrayal in the
City, Man of Kafira, The Green Cross of Kafira (the Kafira Trilogy), The Return of Mgofu; John Arali Ruganda, The
Burdens, The Floods, Music of Silence, Shreds of Tenderness; Marjorie Oludhe Macgoye, Make it Sing and Other
Poems, Coming to Birth, Chira; Yvonne A. Owuor, Dust; Chimamanda Ngozi Adichie, Half of a Yellow Sun;
Emotional intelligence (quotient) eg by Daniel Goleman; character development, behavioural therapy and change,
mental health, moral ethical living; Henry Wadsworth, the Slave’s Dream; Wole Soyinka, “Telephone Conversation”.
Music by Owino Misiani, Oliver Mtukudzi, Kamaru, Lucky Dube; ESAO analysis of music and politics e.g., “From
country home…..”
287
ibid; ES Atieno Odhiambo (2003) “Matunda ya Uhuru, Fruits of Independence: Seven Theses on Nationalism in
Kenya,” in ES Atieno Odhiambo & John Lonsdale (eds) (2003) Mau Mau and Nationhood: Arms, Authority and
Narration, Ohio University Press, Athens, 37-46, op. cit. …
288
Micere Githae Mugo (1973) “I took my son by the Hand,” in David Rubadiri (ed) (1989) Growing Up with Poetry:
An Anthology for Secondary Schools, African Writers Series (AWS), Heinemann Educational Books Ltd, Oxford,
Page 51 of 71
London, at 77-78.

Page 52 of 71
Jagjit Singh must have also been lamenting about Kenya in his powerful poem, “Portrait of the
Asian as an East African.” Singh uses Asian African male persona who laments bout a changing
Africa of the 1960s at the beginning of self-rule in post-independent Africa.289

The persona laments;/ farewell my dear beloved illusions,for I,

too, would have liked to think
only the toes of Africa were infected290
but the cancer of colour/has gathered fresh victims now.

black surgeons, too, have prescribed new drugs291/ and we,

malignant cells,/ must fade away soon.

let me not see you now,/ ancestral spirits of my race,

in the posture of lawino,292/ lamenting sweetness that has turned sour, for it
shall be my western mind alone/ that must summon up an excusefor the
brownness of our sins.

and soon we shall be flying,/ unwelcome vultures all over the world,only
to unsheathe fresh wrath/ each time we land

we are the green leaves/ that must sprout no more,for

the roots have thrived/ on black silence
and false kindness of the white race.

waste no ceremony/ for the unintentionally corrupted;lead

the ram to altar/ and wash away the sins of history

2.18 Western influence and involvement in post-independence Kenya

Historians like Charles Hornsby have argued that Western influence played a major role in
founding of the Kenyan state.293 He contends that the large foreign investments and foreign citizens
living in Kenya at independence acted as stabilising forces, both for good and ill.

289
Jagjit Singh (1971) “Portrait of the Asian as an East African,” in David Cook & David Rubadiri (eds) (1996) Poems
from East Africa, East African Educational Publishers, Nairobi, 156-159. Reviewed in Austin L.S Bukenya (1978)
“Notes on East African Poetry,” Vol. 13, HEB, EAEP, Nairobi... Ben Sihanya (forthcoming 2021) Intellectual
Property and Innovation Law in Kenya and Africa: Poems, Songs and Music and Democracy, Liberty, Copyright and
in Kenya and Africa (IPILKA 3). Discuss under conquest state and colonisation...: How Indians and Asians came to
Kenya, Uganda, South Africa etc......Chinua Achebe, Things Fall Apart, A Man of the People, Anthills of the
Savannah; Wole Soyinka, The Lion and the Jewel, Kongi's Harvest, The Road; Ngugi wa Thiong’o, Weep Not Child,
The River Between, A Grain of Wheat, Petals of Blood, The Trial of Dedan Kimathi (), I Will Marry When I Want
(Ngaahika Ndeenda, defiance) (with Ngugi wa Mirii), Maitu Njugira (Mother, Sing for Me);
290
Referring to Okot p’Bitek’s Song of Lawino in which a traditional African wife (Lawino) laments being ignored
who prefers Western values and clementine See Okot p’Bitek (2013) Song of Lawino & Song of Ocol. Waveland
Press.
291
Asians had been discriminated against during white British colonisation. The Government of Kenyatta (1963-78)
and Idi Amin oppressed and exploited some of them in Uganda…..
292
Referring to Okot p’Bitek, Song of Lawino, ibid…
293
Charles Hornsby (2012) Kenya: A History since Independence, I.B. Taurus & Co Ltd, 6 ........ What of second edition?
Cf. Hornsby and the intellectual academic tourists of 2016, 2017, 2018.
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When Lonrho (reportedly) took over the ownership of East African Standard and the Tanzania
Standard, Kenyatta I was unhappy because its sources of wealth were based in White-ruled
Rhodesia. Kenyatta I later gave in. The talk was that Ronald “Tiny” Rowland said to Jomo
Kenyatta that “The paper is yours to do what you like with, just say the word.”294 Kenyatta I
thereafter nominated Udi Gecaga, a family member to the Lonrho Board.295

The contributions by the British finance, military support and advice also actively contributed to
the establishment and survival of the Kenyatta Government after independence. This includes their
role in averting the coup plot or attempt in 1971 where a drunk military officer reportedly revealed
details of the planned coup in a London club, only for the British intelligence officers to send a
cable to Kenyan security agencies on the plot.296 Similarly, foreign aid sustained Kenya’s economy
since independence.

This, according to Hornsby, provided a buffer for the errors of its leadership and a safety net that
was guaranteed by Kenya’s pro-Western orientation. This pro-Western orientation has since
changed especially in the current Kenyan political leadership of Kenyatta II (K+).297 What has
been driving Kenya’s foreign policy including diplomatic relations in EAC, AU, with the West
especially in 2013 and 2014? Was it ICC and personal or ethnic interests? 298

2.19 Kenya: Post-colonial or neo-colonial state?

We conceptualize, problematize and contextualize Kenya through five-pronged research question.
First, whether Kenya is independent? Second, is Kenya dependent? Third, whether Kenya is
interdependent? Fourth, is Kenya post-colonial? Fifth, whether Kenya is neo-colonial? We discuss

294
The Editor (2010) “The early battles between editors and publicity- hungry politicians,” Daily Nation, Nairobi,
March 22, 2010, at https://nation.africa/kenya/news/the-early-battles-between-editors-and-publicity-hungry-
politicians--627866 (accessed October 8, 2020).
295
He was appointed as a Director of London Rhodesia (Lonrho) East Africa. Udi Gecaga is the father of Jomo Gecaga,
and also the ex-husband of President Uhuru Kenyatta’s elder sister Jeni Wambui. Bethwel Mereka (BM) Gecaga, was
the father-in-law to Jeni Wambui Kenyatta, and was appointed to key state corporations including as Registrar in the
General Department at the Ministry of Legal Affairs; General Manager of BAT Kenya, and Kenya Airways….
296
….
297
Starting from the Kibaki government, Kenya started focusing on the East. Consider the Kenya-China multi-billion
deal, the Railway tenders etc. What are the constitutional and economic implications or impacts? See …
http://www.innovativelawyering.com/blogs/88-prof-ben-sihanya-on-the-kenya-china-multi-billion-deal (accessed
4/6/2014). See also Timothy Kaberia (2014) “Uhuru’s response sign of desperation,” Star, 27/5/2014 at
http://www.the-star.co.ke/news/article-168686/uhurus-response-sign-desperation (accessed 4/6/2014).
298
….Chapter 14 on conceptualization, problematisation and contextualization of Kenya African policy since 1963.
Cite Bonaya Godana Katiba collections; Andy Adede, Katiba Collections, JB Ojwang and Luis Francheschi, FD
Situma…. Foreign policy, international relations.........

Page 54 of 71
these matters then relate them to the key questions: social, economic, political, technological and
to the four presidencies….299

Some scholars have argued that Kenya is a neo-colonial state; that is, it has attained formal
independence but is essentially still dominated in the political, economic, cultural, social, and other
spheres by the ex-colonial power or by other states300 like USA, China and other European
countries.

Kenya’s “post colonial” means that there was once a colonial power or historical connection
between colonialism and the current state of affairs. Immediately after independence, the political
elite in Kenya African National Union (KANU) led by Jomo Kenyatta dismantled the
Independence Constitution in order to implement the Kenyatta-Mboya-Nyerere theory of a unitary
state and a singular executive authority.301

What did 50 years of independence celebrations mean to most Kenyans?302 What do the annual
celebration of Madaraka Day on June 1st, Mashujaa Day on October 20th and Jamhuri Day on
December 12th mean?303 Some Kenyans even argued that the celebration of these days ought to
be stopped.

They argued that the sensation around independence and nationalism immediately post-
independence has waned over the years; and that Kenyans’ enthusiasm has mutated into the need
for a public holiday to rest rather than participate in historically significant occasions.304

There is also an argument that Mau Mau survivors have been compensated by the British (on a
without prejudice basis). Who will compensate Kenyans who have suffered assassinations,
massacres, ethnic hegemony and other forms of ethnic apartheid since independence? When will
the freedom and compensation come?

299
Cf. Discussion of Constitution and State in Chapter 1, op. cit. Colin Leys…. Raphael Kaplinsky…. Nicholas
Swanson….. Anyang’ Nyong’o…capitalist accumulation and development in periphery? Local Kenyan bourgeoisie?
Or comprador? Cf. Chapter of CODRALKA 2.
300
Colin Leys (1975) Underdevelopment in Kenya: The Political Economy of Neocolonialism, 1964-1971, University
of California Press, Berkley, at 1-27…
301
Githu Muigai (2001) Constitutional Amendment and the Constitutional Amendment process in Kenya 1964-1992:
A Study in the Politics of the Constitution, PhD Thesis, University of Nairobi; Githu Muigai, on dismantling of the
Kenya Constitution during Bomas, newspaper article….
302
John Kamau (2013) “50 years on, Uhuru confronts the same mountains his father faced,” Daily Nation, 31/3/2014,
at http://www.nation.co.ke/news/50-years-on-Uhuru-confronts-the-same-mountains-his-father-faced/-
/1056/2333546/-/qu7rr9z/-/index.html (accessed 3/6/2014).
303
In 2018, Moi Day was celebrated again without presidential or state ceremony. This was based on High Court
Justice George V. Odunga’s decision in Republic v. Cabinet Secretary for Internal Security ex parte Gragory Oriaro
Nyauchi & 4 Others, Judicial Review 292 of 2017 [2017] eKLR…..
304
Sekou Toure Otondi (2017) “It is time for Kenyans to stop celebrating Madaraka Day,” The Conversation, May
31, 2017, at https://theconversation.com/it-is-time-for-kenyans-to-stop-celebrating-madaraka-day-78608 (accessed
June 22, 2021).
Page 55 of 71
Kenya inherited from the colonialists a political structure with a strong executive branch at the
expense of other democratic institutions. The two leading nationalist parties KANU and KADU,
for instance, were largely loose amalgamations of ethnically homogeneous, district-based political
associations under the leadership of local power barons.305

Jomo Kenyatta, who had been in prison, did not participate in the establishment of such parties;
this made it difficult for him to control the parties.306 This prompted him to resort to the
bureaucracy of Provincial Administration. Through this he could exercise direct control.

Also define and conceptualise bureaucratic state, prebendal state (Richard Joseph who focuses on
comparative constitutional politics of Nigeria); authoritarian or totalitarian state; rent seeking state;
patrimonial state. On the foregoing, see the methodology on conceptualization of the Constitution,
state and government, law and development class 4. These only define certain aspects of facets of
the state under the generic, Ghaian and Sihanya reconceptualisation or synthesis of constitution,
state and government.

Patrimonialism through patronage became the new order of business with the state becoming the
single most important dispenser of national resources, rendering state control the primary means
of acquiring wealth.307 The role of political parties in democratization was rendered irrelevant with
the dissolution of KADU in 1964.

Kenyatta instigated numerous constitutional amendments that gave him sweeping executive
powers.308 Under KANU dictatorship and leadership under Moi 1978-2002...309 Moi in his quest
to consolidate power revitalized KANU through mandatory life membership for all MPs and senior
civil servants, establishing a powerful party disciplinary committee and through the party’s
invasion of electoral processes by introducing mlolongo or queue voting.310

305
Siegmar Schmidt and Gichira Kibara (2002) Kenya on the Path Toward Democracy?: An Interim Evaluation: a
Qualitative Assessment of Political Developments in Kenya Between 1990 and June 2002, Konrad-Adenauer-Stiftung,
Nairobi, at 5…
306
Ibid, at 5.
307
Ibid, at 5.
308
Siegmar Schmidt & Gichira Kibara (2002) Kenya on the Path Toward Democracy?: An Interim Evaluation: a
Qualitative Assessment of Political Developments in Kenya Between 1990 and June 2002, Konrad-Adenauer-Stiftung,
Nairobi, at 6……
309
Cf. (2002) “Two cheers to colonialism,” by the discredited author and (convicted) felon, Dinesh D Souza.
310
Godwin R. Murunga and Shadrack W. Nasong’o (2007) Kenya: The Struggle for Democracy, Zed Books Ltd,
London, at 278….
Page 56 of 71
2.20 National and transnational obligations after independence in Kenya, Uganda, Nigeria,
South Africa, and Africa
One of the major incidents of independence was that Kenya became a sovereign state.311 In 1964
it became a sovereign republic with power to control its destiny internally and in external relations.
Article 2(5) and (6) of the Constitution 2010 state that:

“(5) The general rules of international law shall form part of the law of Kenya.

(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this
Constitution.”312

The challenges in the neo- or post-colony include meeting national obligations as well as
international responsibility.313 National obligations include protecting life, people and property
within the territory. These include securing equity and reducing or eliminating discrimination,
hegemony or preference based on ethnicity, regions, religion, gender or class. International
obligations include settling debts, implementing treaties entered into (by the state or former
colonial power), state succession, meeting human rights and environmental standards.

Provided that Kenya does not have a very clear and explicit foreign policy. In the Cold War era, it
argued that its policy was non-alignment (and good neighborliness – or non interference). Since
independence Kenya has joined some supra-national bodies to consolidate its role as a member of
the international community.

These include the United Nations (UN), Commonwealth, African Union (AU), Common Market
for Eastern and Southern Africa (COMESA) and the East African Commission (EAC) and Inter-
Governmental Authority on Development (IGAD). These qualify Kenya’s state sovereignty given
that by virtue of Article 2(5) and 2(6) of the Constitution 2010, international instruments that
Kenya ratifies bind the country to meet the obligations arising therefrom.314

The national basis of foreign policy. What is Kenya’s foreign policy? Generic (cf. USA; Nigeria,
South Africa, Egypt, Ghana… Is Kenya’s foreign policy explicit? Implicit?315 Kenya’s foreign

311
Cf. popular sovereignty Art 1; and state sovereignty and sovereign equality of states: “Kenya is a sovereign
Republic….” As articulated under Art 4(1) of the Constitution 2010; cf. 1963 and the 1969 Constitutions. UN Charter,
1945, AU Charter….; Constitutive Act of 11/7/2000 Vienna Convention on the Law of Treaties (VCLT), 1969,
Vienna Convention on Consular relations (VCCR), 1963, Vienna Convention on Diplomatic Relations (VCDR).
312
See Chapter 5 of CODRALKA 1 on the Constitution of Kenya vis-à-vis national, foreign, comparative, and
transnational or international law…
313
H.W.O. Okoth-Ogendo (1974) “National implementation of international responsibility: some thoughts on human
rights in Africa,” 10 (1) East African Law Journal; Jackton B. Ojwang (1990) Constitutional Development in Kenya:
Institutional Adaptation and Social Change, African Centre for Technology Studies (ACTS), Nairobi; JB Ojwang &
Luis G. Franceschi (2002) “Constitutional Regulation of the Foreign Affairs Powers in Kenya: A Comparative
Assessment,” 46 J., African Law, 43.
314 ….
315
Laws on citizenship, non-citizens, asylum, diplomatic and consular relations. Cf. Justice JB Ojwang & Luis G.
Franceschi (2002) 46, 1, “The Constitutional Regulation of the Foreign Affairs Power: A Comparative Assessment,”
Page 57 of 71
policy is guided and driven by a vision of “a peaceful prosperous and globally competitive Kenya”
with the mission to protect, promote and protect Kenya’s interests and image globally through
innovative diplomacy, and to contribute towards just, peaceful and equitable world through peace
diplomacy….316

Arguably, Kenya’s foreign policy takes a dependent approach mainly influenced by foreign capital
inflows. Notably, whatever constitutes Kenya’s foreign policy is the preserve of the President in
power, with the Ministry of Foreign Affairs simply being the facilitative and coordinating arm of
the President’s policy.

Though Kenya’s foreign policy has been regularly touted to include principles such as non-
alignment and non-interference by external powers as well as sovereignty, its policy is frequently
dictated by economic interests and the need to have more of foreign capital. This includes the
nature and debates on Kenya’s foreign policy vis-à-vis the China-US relations in trade,
infrastructure, debts and the coronavirus disease 2019 (COVID-19) pandemic…..

2.21 Constitutionally important dates in Kenya

Precolonial Kenya: 1500-1895?

During this period, there was the arrival of early travelers, visitors, explorers, discoverers,sailors,317
traders,318 fortune seekers, missionaries,319 colonial anthropologists,320 colonial administrators.321
This included the Portuguese entry in Mombasa and the construction of Fort Jesus in 1593.

1895-1920: The Kenya-Uganda Railway line reaches Kisumu in 1901.

Nairobi was made the capital of the British East African Protectorate in 1905.

1920 The British East African Protectorate is divided into the Kenyan and Ugandan
colonies. Kenya becomes a colony.

Sir Edward Northey becomes the first Governor of Kenya.

Journal of African Law, Oxford, 43–58…. Adar Korwa…..Oyugi (ed)…….cf. Macharia Munene…ES Atieno
Odhiambo on Munene… ..... in Godfrey P. Okoth (…) Kenya at the Beginning of the 21st Century….
316
…Ministry of Foreign Affairs (2016) “Kenya Foreign Policy,” at https://www.mfa.go.ke/wp-
content/uploads/2016/09/Kenya-Foreign-Policy.pdf (accessed June 24, 2021).
317
….The Peripluss of the Erythraean Sea. Cf. early writers in Nigeria, South Africa…
318
Tippu Tip & Heinrich Brode (2000) Tippu Tip: The Story of His Career in Zanzibar & Central Africa. Gallery
Publications.
319
See ES Atieno Odhiambo… etc. These include the coming of Ludwig Krapft and John Rebmann.
320
ES Atieno Odhiambo, HWO Okoth Ogendo ....... John Speke discovered Lake Victoria in 1856.
321
Cf. HWO Okoth Ogendo (2002) “The tragic African commons: A century of expropriation, suppression and
subversion,” ........... Bruce Berman & John Lonsdale (1979) “Coping with the contradictions: The development of the
colonial state in Kenya, 1895–1914,” Vol. 20(4), The Journal of African History, 487-505. ………

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1921 Harry Thuku forms the Young Kikuyu Association (YKA) which later draws a
petition containing grievances on labour, land and Kipande, which Africans had to
carry.

The Piny Owacho (Voice of the People) political pressure group mass agitation for
land, taxes and representation.322

March, 1922 - Harry Thuku is arrested and M.A Desai, President of the Indian Congress is accused
by the European press of instigating Harry Thuku.

September 1922 - Kamau wa Ngengi (later Johnstone Kamau and thereafter Jomo Kenyatta)
becomes a member of the Committee of the East African Association (EAA)… Choosing a name
that would be tribe neutral? [Cf. the many Luos in (post) Kenyatta Kenya….]

1924 - Harry Thuku stands his position that only elected Africans can genuinely represent
African interests.

Kikuyu Central Association (KCA) is formed by Jesse Kariuki and Joseph

Kang’ethe.

1928 - Jomo Kenyatta starts the Kikuyu paper, Muigwithania (The Reconciler).

1929 - Jomo Kenyatta departs for England to make personal representation about grievances of
the Kikuyu.

1931 - Harry Thuku is released from detention.

1934 - Kenya Land Commission report closes the frontier between the European
Highlands and the African Land units. Africans are denied any rights in the White
Highlands.

The North Kavirondo Central Association (NKCA) is formed.

1935 - Harry Thuku breaks from Kikuyu Central Association (KCA) and forms Kikuyu
Provincial Association (KPA).

12/11/1937 - The Secretary of State for Colonies, Mr Ormsby-Gore, reaffirms that the White
Highlands in Kenya are exclusively for Europeans and that Africans and Asians cannot acquire
land there.

322
BA Ogot (1963) “British Administration in the Central Nyanza District of Kenya, 1900-60,” 4(2), The Journal of
African History, 249-273.
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1938- Jomo Kenyatta publishes his first book, Facing Mount Kenya.
Ukamba Members Association (UMA) is formed.

The Akamba people march to Nairobi to protest against the Government policy of
de-stocking and their leader, Samuel Muindi wa Mbingu is deported to Lamu.

1940- Kikuyu Central Association, the Ukamba Members Association (UMA), and the Taita Hills
Association (THA) are banned and their leaders arrested.

1944 - Eliud Mathu is nominated the first African member of the LegCo.

Kenya African Study Union (KASU) is formed.

1946- Kenya African Study Union drops the word study from its name to become Kenya African
Union (KAU).

1947- Makhan Singh and Chege Kiobachia lead the first strike by African workers in Nairobi.

KAU president Mr. James Gichuru steps down to make way for Jomo Kenyatta to become KAU
president.

The number of African members to LegCo is raised to four.

Kipande system is abolished and replaced by an identity card system. Who else?

1948- Kenya, Uganda and Tanganyika form the East African Commission (EAC).
Mau Mau freedom fight and liberation struggle begins.

1949 - Makhan Singh and Fred Kubai form East African Trade Union Congress in Nairobi to fight
for the rights of African workers.

1950 - KAU and The Kenya Indian Congress hold public meeting at Kaloleni Hall in Nairobi.
Trade unionist Makhan Singh’s resolution demanding for independence for Est Africa is carried.

Mau Mau is declared an illegal society.

Makhan Singh is tried by the High Court and detained as “an undesirable British
subject”

October 20,1952 - The Governor, Sir Evelyn Baring declares a state of emergency. This followed
the killing of a loyalist Kikuyu chief, Waruhiu by Mau Mau freedom fighters.

The ‘Kapenguria Six’ are arrested by the colonial security forces.

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January 26, 1953 - The Kapenguria trial begins: Jomo Kenyatta, Fred Kubai, Achieng Oneko,
Paul Ngei, Bildad Kaggia and Kung’u Karumba….

April 8, 1953 - The Kapenguria Six- are found guilty and sentenced to seven (7) years in prison
with, hard labour…

1954 - A prominent Mau Mau leader ‘General China’ Waruhiu Itote is captured by Colonial
Government forces and imprisoned at Lokitaung.

April 1954 - Colonial Government mounts “Operation Anvil” against Mau Mau elements in
Nairobi and arrests 27,000 Kikuyu who are put into detention camps

September 3, 1954 - Field Marshal Olekisiso, the leader and organiser of Mau Mau in the Rotin
division of Maasailand and second-in-command to Dedan Kimathi since the arrest of General
China, is killed in an ambush in Narok.

1956 - “Field Marshall” Dedan Kimathi of Mau Mau forces is shot at, wounded and captured on
October 21, 1956.

The trial of Dedan Kimathi begins before the Supreme Court.

1957 - Dedan Kimathi, the Mau Mau leader, is hanged at Kamiti Prison aged 34.

The state of emergency ends.

March 1957 - Elections for eight (8) African Members of LegCo are held for the first time. Oginga
Odinga and Tom Mboya are elected to LegCo.

1958 - Mr Oginga Odinga asks questions in the LegCo about Mzee Jomo Kenyatta in prison.

Demands for a constitutional conference and release of Mzee Jomo Kenyatta are made

1959 - There are now twenty-five (25) African members, fifteen (15) Asians, five (5) Arab and
forty six (46) Europeans in the LegCo representation.

Pan African Movement of East and Central Africa (PAFCSA) is founded. Take on how
members grew for the races absoluty LegCo size.......

The Kennedy Scholarships Airlifting programme is initiated.

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March 1959 - Nairobi People’s Convention Party (NPCP) is formed and the “Release Kenyatta”
campaign launched.323

April 14, 1959 - Mzee Kenyatta I and his companions complete three-quarters of their sentence of
imprisonment and become eligible for release.

A restriction order is immediately applied and Mzee Kenyatta is detained at Maralal.

January 12, 1960 - The state of emergency and the emergency regulations declared in 1952 ends
after 7 years of war against Mau Mau.

January 18, 1960 - Kenya constitutional conference starts at Lancaster House in London.Mr
Macleod, Secretary of state for the colonies, refuses to admit Mr. P.M. Koinange as a second
special adviser to African delegation.

The African elected members led by Mr Ronald Ngala and Mr Tom Mboya boycott the
Lancaster House Conference. Date?

January 25, 1960 - Kenya constitutional conference at Lancaster House ends and there is full
attendance at the talks.

March 1960 - Kenya African National Union (KANU) is formed.

May 14, 1960 - Mzee Jomo Kenyatta who is still in prison is elected, in absentia, President of the
newly formed party, KANU, while Mr James Gichuru is elected acting president until Kenyatta I
is released.

March 14, 1961 - KADU Cabinet ministers Mr Ronald Ngala and Mr Taitta Towett, protest
against Governor Patrick Renison’s refusal to release Mzee Jomo Kenyatta. See also 1958 Oginga
Odinga’s struggle to have Kenyatta released and restored into civil society; and Mboya’s campaign
in March 1959 above.

July 12, 1961 - Mr JD Shah, a member of the Legislative Council (LegCo), criticises the existence
of the European and Asian hospital authorities and calls for abolition of racial segregation in
schools.

323
Oginga Odinga and Tom Mboya, among others….. “restored Kenyatta to civil society” from a pariah status… They
told on each other in the process…..From Kenyatta …Uhuru na Kenyatta na Uhuru… to…. Cf. Kiano and some
Kikuyu leaders argued: “we are the leaders of the people….”.....to what effect? Kenyatta as reconciler?
“Muigwithania”…again? Bethwell A. Ogot (forthcoming 2021) Tom Mboya: Life, Death and the Disintegration of
the Nascent Entreprise, ‘Project Kenya.’ Anyange Press; Anyang’ Nyong’o (1989) “State and society in Kenya: The
disintegration of the nationalist coalitions and the rise of presidential authoritarianism, 1963-1978,” 88, African Affairs
351.
Page 62 of 71
Jomo Kenyatta criticizes KADU’s Majimbo policy in his first speech since becoming KANU
president.

November 24, 1961 - Mr Reginald Maudling, the British colonial secretary, arrives in Kenya to
hold talks with Kanu and KADU officials on the formation of a coalition government.

January 12, 1962 - Mzee Jomo Kenyatta is elected unopposed in a by-election after Mr Kariuki
Njiri Legco member for Fort Hall, vacates his seat for him.

February 14, 1962 - The Lancaster House Constitutional Conference in London starts with KANU
President Jomo Kenyatta demanding in his opening speech that the conference must namea date
for Kenya’s full independence.

March 5, 1962 - The Kenya constitutional conference in London starts a detailed examination of
the Majimbo (regionalism) proposals of the KADU.

April 2, 1962 - Colonial Secretary Reginald Maudling presents Kenyan political leaders with his
final 23-point draft framework for Kenya’s constitution in London and gives them 48 hours to
make up their minds about it.

April 5, 1962- KANU and KADU form a coalition government.

June 18, 1962 - Mr. Bildad Kaggia, the chairman of KANU’s Naivasha Sub-branch, criticises Mr.
Bruce Mackenzie’s proposal to settle 2,000 Kikuyu families in Tanganyika, describing the move
as indirect deportation.

November 19, 1962 - Mr Paul Ngei threatens to leave KANU with his 750,000 Kamba supporters
and form a new party following a disagreement with party officials.

2.23 Independent Kenya 1963-2017-20 and Beyond

Under this section, we will focus on the important dates between independence in 1963 to 2020
and beyond.

Major events, processes, actors, dates, constitutional provisions and quotes...Kenya, Nigeria,
South Africa, Uganda....
June 1, 1963 – internal self-government in Kenya; Kenya’s sovereign authority is qualified.
British but the monarchy still controls international affairs.

December 12, 1963 – Kenya gains independence with much greater authority to determine
destiny. However, it is still technically a dominion of the UK.

Between 12/12/1963 and 12/12/1964, Kenya was technically a monarchical state. There’s a Prime
Minister (Jomo Kenyatta) who exercises some executive or efficient powers. The Governor-

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General (Malcom MacDonald) exercises ceremonial powers on behalf of the Queen Elizabeth. PM
nominates while Governor-General appoints the cabinet.

December 12, 1964 – Kenya becomes a sovereign republic in terms of the Constitution. Post of
Governor-General is abolished. President is head of government and head of state. See ss. 1, 1A,
23, 24, etc of the Constitution of Kenya, and Arts. 1, 2, 3, and 4 of the Draft Constitution of Kenya
2004. Constitution of Kenya 2010: referendum on August 4, 2010; promulgation on August 27,
2010….

Post- 2010 calls for a referendum by the Coalition for Reforms and Democracy (CORD) and the
Council of Governors (CoG).324

KLRC? Prospects? Kenya Law Reform Commission (KLRC) is within A-Gs; implementation;
referendum?)….325

1966- A left-wing faction of KANU led by Oginga Odinga and Bildad Kaggia defected from
KANU and formed the Kenya People’s Union (KPU)

1969 – The first single-party elections in Independent Kenya were held with KANU as the sole
party.

Tom Mboya assassinated and Oginga Odinga was arrested and KPU leader detained.

The Kenya People’s Union (KPU) banned.

1975 – The killing of charismatic politician JM Kariuki.

1982 – There was an unsuccessful coup against President Moi which led to a more autocratic
regime.

KANU officially declared Kenya a one-party state.

1991 – The Forum for Restoration of Democracy (FORD) is formed then banned and Oginga is
arrested once again.

There was a repealing of section 2A that created room for multi-party elections.

1992 – The first multiparty elections in Kenya were held with Moi winning the Presidency.

324
Standard Digital News (2015) “What the launch of Okoa Kenya says about our democracy,” Standard, 24/4/2015,
Nairobi, at http://www.standardmedia.co.ke/article/2000159532/what-the-launch-of-okoa-kenya-says-about-our-
democracy (accessed October 2, 2020).
325
E.g. major transitional elections under the Constitution of Kenya 2010; Supreme Court’s controversial decision on
Raila Odinga (2013 and 2017); Peter Munya,… Mary Wambui…; ICC trials; contest on implementation of the
Constitution e.g. devolution, colonialism and ethnic chauvinism in government appointments, CORD’s request for a
national dialogue on the current crises; threats to governors; referendum etc..
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1997 – The second multiparty elections were held and there was the introduction of the Inter-
Parliamentary Party Group (IPPG).

2002 – NARC coalition under Mwai Kibaki’s DP with the support of LDP led by Raila Odinga
triumphed over KANU’s candidate Uhuru Kenyatta, considered a Moi project, marking the end of
Nyayoism.

2007 – Kenya conducted elections which led to post-election violence after claims of electoral
fraud.

2008- Kenya formed a new coalition government with President Kibaki and Prime Minister Raila
Odinga after post-election violence following the amendment to the Constitution creating the
premier office.

2010- Kenya adopted or promulgated the new constitution 2010.

2012- The International Criminal Court (ICC) indicts six (6) Kenyans for crimes against humanity
following the 2007-2008 post-election violence.

Britain acknowledges the torture and ill treatment of at least 5, 228 Mau Mau veterans by
its colonial government. Foreign Secretary indicated that they would be paid £20 million.

2013 – Uhuru Kenyatta wins a disputed election in the first elections under the new Constitution
2010.

Raila Odinga contests the decision in the Supreme Court in Raila Odinga & 2 Others v.
Independent Electoral & Boundaries Commission & 3 Others (2013) which confirms
Kenyatta II as the validly elected President.

2014 – The ICC prosecution drops charges against Uhuru Kenyatta in December 2014 citing
insufficient evidence, witness interference and lack of substantive cooperation by the Kenyan
authorities.

2015 – Fifth year of the implementation of the Constitution and there are calls for a referendum
by the Council of Governors.

More than 147 people killed at Garissa University after an Al Shabaab attack.

2016 – ICC charges against William Ruto dropped in April 2016. ICC judges described the trial
process as tainted by witness interference and political meddling hence a weakened prosecution
case.

Uhuru Kenyatta’s (K2) administration is in crisis. This includes lawlessness, paralysis, gridlock,
dysfunctional; teachers strike, disobeying court orders to pay teachers, closes schools; insecurity;

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high cost of leaving; and the Kenyan shilling loses big against world major currencies like the
Dollar ($).

There is increasing resentment towards Kikuyuism in Government. Other regions felt that they
were excluded from Government.;

Kikuyu ethnic arrogance and impunity by Hon Moses Kuria and Mutahi Ngunyi encouraged and
suffered….

Increased levels of corruption. Global Corruption Perception Index (CPI) ranks Kenya number 145
out of 176 countries according to graft levels; Favouritism by partially punishing some suspects,
suspending and shielding Governor Anne Waiguru and shielding ethnic affiliates e.g. on the
National Youth Service (NYS) lost of at least KES 791 million.

Police brutality sanctioned by the Jubilee government including the reckless shooting of opposition
supporters during anti-IEBC protests. No police officers were prosecuted for the selected killings;

Reports of armed militia reemerging? Mungiki? Ethnic cleansing- cf. Kimani Ngunjiri calling on
Luos to leave Nakuru. Debates on hate speech…. The killing of Lawyer Willie Kimani.

2017: Second General Elections under the 2010 Constitution. TheSupreme Court nullifies
presidential elections in the Presidential Petition 1 of 2017; protracted electoral and political crisis.

October 26 resistance and boycott of notorious commodities.

March 2018 handshake or rapprochement between Raila Odinga of NASA and Uhuru Kenyatta of
Jubilee Party.

2019- Demolition of buildings on riparian land.

Lifestyle audit announced by President Uhuru Kenyatta not fully implemented....

Anti-corruption.... debates on prosecutions targeting those not affiliated to President Uhuru

Kenyatta: untouched or manipulated. These include Managed Equipment Scheme (MES) where at
least 38B was lost. Some individuals were allegedly paid without contracts; while others were
expensive, including the purchase of unnecessary health equipment….

The MAfya House tender and graft that led to the loss of KES 5 Billion at the Ministry of Health
under the then Cabinet Secretary Cleopas Mailu…..NYS 1, NYS 2 scandals……

Murder of Sharon Otieno which leads to the Migori County Governor Zachary Okoth Obado being
charged.....; Monica Kimani is murdered, media personality Jackie Maribe and Mr Irungu charged,
both had been close to Jubilee leadership. One third gender formula, principle, and rule in
Parliament again.

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October 10, 2019 gazzetted as a public holiday following a High Court Judgment that reinstated
it in 2017.

March 23, 2019- Official release of the 2019 Building Bridges Initiative Report – Dubbed
Building Bridges Initiative (BBI).326

Among the recommendations proposed by the Taskforce in BBI Report, 2019 were that:

“President Uhuru Kenyatta should commission an official history of Kenya whose production will
be led by an Office of the Historian resident in the National Archives. This history should go back
1000 years and provide an accurate and definitive account of the settlement of Kenya by the present
inhabitants; the political, economic, and cultural heritage of all ethnic groups in Kenya; the role of
women throughout history; an account of the international slave trade and colonialism; the
anticolonial struggles; the post-colonial history of every part of the country; and contemporary
histories including those of urban areas and newly formed communities in Kenya.”327

March 2020- COVID-19 pandemic and its effects.

Debates on the Building Bridges Initiative (BBI).

Chief Justice David Kenani Maraga’s advisory to President Uhuru Kenyatta for the dissolution of
the National Assembly for failure to pass one-third gender rule. Further, Hon John Waluke, Sirisia
MP was sentenced to 67 years in prison on corruption charges. Mr Waluke together with his co-
accused were later freed on a cash bail of KSh 10 Million and KSh 30 million, respectively, in
September 2020.328

Additionally, the Nairobi Metropolitan Service (NMS) was created on March 18, 2020, after the
signing of the Deed of Transfer of Functions between former Nairobi City County Governor Mike
Sonko, and President Uhuru Kenyatta. There were also debates on the Handshake and
constitutional amendment process and proposals that resulted therein.

Further, referendum debates and 2022 transition, and President Uhuru Kenyatta’s succession were
increasingly in focus. Moreover, there was the third-generation revenue formula ‘Third Basis for

326
Carolyne Tanui (2020) “President Kenyatta arrives at Bomas for BBI Report Launch,” Capital News, October 26,
2020, Nairobi, at https://www.capitalfm.co.ke/news/2020/10/president-kenyatta-arrives-at-bomas-for-bbi-report-
launch/ (accessed November 3, 2020).
327
Presidential Taskforce on Building Bridges to Unity Advisory (2019) Building Bridges to a United Kenya: From
a Nation of Blood ties to a Nation of Ideals, Govern Printers, Nairobi, 102.
328
Joseph Wangui (2020) “Waluke, Wakhungu freed on bail after three months in jail,” Business Daily, Nairobi,
September 29, 2020, at https://www.businessdailyafrica.com/bd/economy/waluke-wakhungu-freed-on-bail-after-
three-months-in-jail-2374204 (Accessed February 16, 2021).
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Revenue Allocation’ impasse at the Senate with Senators failing to agree on at least ten (10)
occasions.329

Relatedly, the Building Bridges Initiative (BBI) Report of the Steering Committee on the
Implementation of the Building Bridges to a United Kenya Taskforce, 2020 submitted on October
21, 2020, and officially launched on October 26, 2020 at Bomas of Kenya. The BBI Report 2020
proposed policy, constitutional, legislative and administrative reforms...330

2021- IEBC finalized the verification of more than 1.4 million signatures supporting the BBI
Report, 2020. The Constitution of Kenya (Amendment) Bill, 2020 was submitted to all the 47
county assemblies. The Bill was subjected to public participation then passed in more than 34
County Assemblies as shown in the Annex …331

The Constitution of Kenya (Amendment) Bill received over 4 million signatures of Kenyans in
support of the constitutional reform process, including 44 out of 47 counties (24 needed), 51 out
67 Senators, and 235 out of 350 MPs (simple majority required).332

January 27, 2021- inquiry by Parliament into the KEMSA coronavirus 2019 disease (COVID-19)
pandemic items procurement scandal. It was estimated that at least KES 7.8 Billion was lost
through flouted procurement rules, and illegally awarded tenders.333

May 2021- The High Court in David Ndii & 4 Others v. Attorney-General & 3 Others (2020) (BBI 2)
nullified and voided the BBI process.334 The five judge High Court bench decision was appealed
to the Court of Appeal (CoA) including on the basis that its findings were not constitutional,
especially because the basic structure doctrine and eternity clauses were not applicable having
been imported from India and Germany; and the finding that three (3) Independent Electoral and
Boundaries and Commission (IEBC) commissioners cannot transact business yet Art. 250 permits
that.

329
Hillary Orinde (2020) “Uhuru commits Sh50b for counties to end revenue impasse,” Standard, Nairobi, September
15, 2020, at https://www.standardmedia.co.ke/nairobi/article/2001386496/uhuru-commits-sh50b-for-counties-to-
end-revenue-impasse (accessed February 22, 2021).
330
See the Building Bridges Initiative (BBI) Report 2020, at Star (2020) “The Building Bridges Initiative Report,”
Star, October 21, 2020, at https://www.the-star.co.ke/news/2020-10-21-download-the-building-bridges-initiative-
report/ (accessed February 12, 2021); Ben Sihanya (forthcoming 2021) “Reforming and Implementing the Kenyan
Constitution Beyond the 10th Anniversary,” Sihanya Mentoring and Sihanya Advocates, Nairobi and Siaya.
331 ….
332
Patrick Lang’at (2020) “Legal timelines begin with submission of BBI signatures to IEBC,” Daily Nation, Nairobi,
December 12, 2020, (accessed January 12, 2021).
333
Edwin Mutai (2021) “Auditor-General feels the heat over Kemsa scandal report error,” Business Daily, Nairobi,
January 27, 2021, at https://www.businessdailyafrica.com/bd/economy/auditor-general-kemsa-scandal-report-error-
3269840 (accessed February 12, 2021).
334
David Ndii & 4 Others v. Attorney-General & 3 Others [2020] eKLR.
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 August 20, 2021- The Court of Appeal (CoA) delivers the Building Bridges Initiative (BBI)
judgment in Civil Appeal No. E291 of 2021– the dissenting opinion by Justice Fatuma Sichale was
applauded as it addressed what were considered the most important issues….
September 2021- the Attorney-General (A-G) and the Independent Electoral Boundaries
Commission (IEBC) petition the Supreme Court on the Court of Appeal (CoA) Building Bridges
Initiative (BBI) judgment….

August 17, 2021- the former Prime Minister (PM) Raila of the Orange Democractic Movement
(ODM) launches Azimio La Umoja (Declaration of Unity) and other reform agenda…. President
Uhuru Kenyatta continues to consolidate his legacy…. Deputy President (DP) William Ruto of the
United Democratic Alliance (UDA) continues with his ‘hustlers’ movement campaign….
ambivalent on the Jubilee administration’s legacy….

March 13, 2022- The Supreme Court of Kenya delivers the Building Bridges Initiative (BBI)
judgment and upholds it on 5 grounds; finds challenges in two grounds—the presidency role in the
amendment by popular initiative; and creation of 70 Constituencies . The court dismissed the
appeal and upheld Court of Appeal and High Court’s position in nullifying and invalidating the
whole BBI process.

Early to mid-2022- Litigation on Azimio la Umoja One Kenya Coalition as a coalition party (cf
coalition of parties); on Political Parties (Amendment) Act, on proposed Elections (Amendment)
Act.... in PPDT, HC....

September 12, 2022- President William Ruto appointed the 5 Court of Appeal Judges who had
been rejected by the former President Uhuru Kenyatta, one day after being sworn in to office. The
former President, Uhuru Kenyatta had held that the said judges had some ‘issues’.

September 30, 2022- The Taskforce for the review of the Competence Based Curriculum (CBC)
was formulated by President William Ruto. The Taskforce has already submitted its
recommendations to the President amid debates on domicile of Junior Secondary school—in
secondary school or in primary school.

September –December, 2022- GMO debates and the issue of granting of subsidy during GMO
maize importation.

October-December, 2022- Numerous criminal cases dropped against UDA and Kenya Kwanza
supporters—Aisha Jumwa and Mithika Linturi.

December 6, 2022- President William Ruto appointed 23 High Court Judges.

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 December 2022- Raila Odinga says that Azimio and Kenyans will seek audit of the 2022
presidential elections from polling stations ‘National Tallying Center”

December 2022- President William S. Ruto writes to the Speaker seeking BBI-like amendments to
the Constitution of Kenya through Parliament. Opposes referendum... Propoosed
amendments include creation of the official position for the leader of the opposition…..

consider the following dates: 1966, 1969, 1972, 1975, 1982, 1991, 1992, 1997, 2002, 2007,
2008, 2010, 2012, 2013, 2014, 2015 (5 years since promulgation; milestones to review;
Commission for the Implementation of the Constitution (CIC) to hand over-why? to who.....

Like the other Chapters of CODRALKA Vols 1, 2, 3, this Chap 2 of CODRALKA 1 has integrated
the following:
- Constitutional sociology, political economy and cultural politics
- structure, agency and conjucture
- interdisciplinarity, multidisciplinarity and cross disciplinarity
- HASS and STEM
- present, past (history, tradition practice or custom) and future (reforms, recommendations,
proposals)..
CPC ... Conceptualize, Problematize, Contextualize
3 Rs: Read, Reflect, Rest
A luta continua vitoria e certa (the struggle continues, )

Page 70 of 71
As Poet Yussuf O. Kassam says, “The drum inspired the dancers / now the dancers inspire the
drummer.”

...Let wisdom flow from and back to the Oracle’s Shrine in class, and through books, articles,
online, and in appropriate fora…

Prof Ben Sihanya, JSD (Stanford), Adv.

Scholar, Public Intellectual and Mentor, IP, Ed and Constitutional Professor and Public Interest
Advocate, Intellectual Property & Constitutional Democracy
University of Nairobi Law School, Sihanya Mentoring & Sihanya Advocates
Email: sihanyamentoring@gmail.com; sihanya@innovativelawyering.com;
info@sihanyaprofadvs.co.ke
Url: www.innovativelawyering.com

*** END*** Thu tinda!335 ***Wishing You Success***

Revised 27/2/2013; 26/9/2013; 14/6/2014; 14/10/2014; 16/02/2015; 16/06/2015; 31/08/2015;

10/2/2016; 29/6/2016; 14/4/2017; 10/4/2018; 8/2/2019; 1/3/2019;
28/6/2019; 4/7/2019; 17/10/2019; 18/10/2019; 13/2/2020; 8/10/2020; 9/10/2020; 18/10/2020;
27/10/2020; 3/11/2020;
12/2/2021; 16/2/2021; 22/2/2021; 22/6/2021; 23/6/2021; 24/6/2021; 27/10/; 1/11/2021;
17/12/2022; 31/12/2022.

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