CONSTITUTIONAL LAW THEORY- LESSON ONE; INTRODUCTION

Expected Learning outcomes

By the end of the lesson learners should be able to:

1. What is Constitutional Law in your own definition?

2. What are the 10 countries with the oldest constitutions?
3. Discuss briefly in about 3 minutes the historical development of the Kenyan constitution.

0.1. COURSE GENERAL OVERVIEW

0.1.1. Definition of constitutional law

Constitutional law is the body of law which defines the relationship of different entities within a state,
namely, the executive, the legislature, and the judiciary. Constitutional law deals with the fundamental
principles by which the government exercises its authority.

Its importance becomes even more pronounced in the wake of the Judicial pronouncements on major
constitutional questions concerning the limits of parliamentary power, the tenure of local government,
legality of capital punishment, resource control, legality of impeachment proceeding and tenure of office
of elected officials of the state.

Constitution means the ultimate source of origin upon which the whole body of governmental apparatus
or system derives its validity, its origin and strength.

0.2. HISTORICAL DEVELOPMENTS OF CONSTITUTIONS

0.2.1. Oldest Constitutions
0.2.1.1. 2300 BC, Medina, Prophet Muhammad.

There are certain scholars who argue that the first constitution was made in Medina, Saudi Arabia by the
Prophet Muhammed (SAW). They claim that are many records of ancient written law (dating back to 2300
BC).
 0.2.1.2. 1700 BC, Zaporizian

However, historians agree that Agreements and Constitutions of Laws and Freedoms of the Zaporizian
Host, written in 1710, is the earliest constitution that satisfies our modern understanding the word.

0.2.1.3. 600 BC, Athens, Aristotle

The idea of a written Constitution dates back to Antiquity. Aristotle himself devoted an entire treatise to
"The Constitution of Athens" and had also meticulously studied various written Constitutions throughout
the Hellenic world, but also included other neighboring cultures, such as Carthage.

The Athenian Constitution's earliest origins may date to Solon-(circa 600 BC/BCE) and Sparta's
Constitution dates to Lycurgus-(though I don't have the approximate date).

The Carthaginian Constitution may predate both the Athenian and Spartan Constitutions, though I don't
have the exact date.

0.2.1.4. 1689, Britannic Constitution- Coronation Act

The first "constitution" was the Britannic Constitution created by the Coronation Oath Act in 1689 after
the Glorious Revolution. The origin of the term can be found in the first paragraph of the act,(go look it
up)

In the wake of this deal between the English parliament and the Dutch stadtholder William, a number of
English legal theorists devised a body of supposed law and "rights" which they termed the Britannic
Constitution, which was essentially the creation of the idea of a "constitutional monarchy". When the
American colonies of Britain revolted they devised their own articles of state which they likewise called a
"Constitution" and subsequently also devised a "Bill of Rights" named after those articles which were
already established by English parliamentary law and theory.

0.2.1.5. 1788, US Constitution

Others say the oldest constitution in the world is the United States Constitution (1788). The US
Constitution is made of seven articles, a preamble, and a closing endorsement. In addition, the
constitution has a Bill of Rights and several amendments.
The Philadelphia Convention is credited with writing the US Constitution, and James Madison is known as
the person who wrote much of the words, simply because he liked to take notes during the meetings of
the convention. He also helped to write the constitution for Virginia, which was used as the basis of the
US Constitution. Thus, he is known as the “Father of the Constitution.”

0.2.2. Kenyan Constitution

Kenya has had two documents called “Constitution” during the colonial period and two since
independence, before the current one that was adopted in 2010. The only one that ordinary citizens have
had any role in making is the current one.

The constitutions in the 1950s were sometimes called after the Secretaries of State (Ministers) for the
Colonies: Lyttleton (1954) and Lennox-Boyd (1957), but were mainly written by the Governor in Nairobi,
Baring. The 1963 Constitution was negotiated between the British and Kenyan leaders at Lancaster House
in London. It was changed several times not long after independence, including abandoning the system
of regional government (majimbo). But it was not formally replaced until 1969, with a new document that
brought together all the changes that had been made.

That remained the Constitution (though with many other things changed such as introducing the one-
party state, then re-introducing multi-party) until 2010. After the post-election violence, 2007-8, further
changes introduced the power-sharing arrangement with a Prime Minister as well as President, and
provided for the Constitution to be replaced through a revived constitution making process. This led to
the 2010 Constitution.

0.2.2.1. Independence and political developments

Like most former British colonies, Kenya, adopted the Westminster system of government at
independence. Following its victory in the general elections of 1963 over the Kenya Africa Democratic
Union (KADU), the Kenya African National Union (KANU) was invited to form the first autonomous
government with Jomo Kenyatta as Prime Minister and the Queen, Elizabeth II of England, as Head of
State on June 1 1963.

In 1964, a constitutional amendment transformed Kenya into a republic, and a presidential system
replaced the parliamentary system of government. This system remained in place until political crises, in
which a power sharing agreement resulted in the splitting of executive power between President Mwai
Kibaki and opposition leader and Prime Minister, Raila Odinga, led to its overhauling between 2007 and
2008.

0.2.2.2. Constitutional history and development

Modern Kenya's constitutional history and development, like that of all former British colonies can be
traced back to the Lancaster House Conferences designed by the British Empire to prepare its colonies for
independence between 1953 and 1979.

The constitutional histories and development of most of these countries can be conveniently divided into
three different phases: the independence or decolonization period, the post-independence or one-party
state period and finally, the post-Cold War multi-party state period.

0.2.2.3. Decolonization and constitutional developments

Constitution making in Kenya began during the colonial days and was inherently linked to the policies and
activities of the British Colonial Office. Under the framework of the Lancaster House Conferences, three
key meetings or constitutional conferences marked Kenya's constitutional development during this
period.

The first meeting in 1960, resulted in an interim constitution that failed to grant any substantial autonomy
to Kenya. The second conference in 1962 negotiated a framework for self-government while the third and
final conference in 1963 resulted in the drafting and adoption of Kenya's first independent Constitution
by the British Parliament.

0.2.2.4. The 1963 Constitution

The 1963 constitution, which was negotiated between the British government and representatives of
Kenya's political parties, marked the end of colonial rule and transformed the colony into a dominion. It
established a parliamentary system with executive powers vested in a cabinet.

The Cabinet was headed by a Prime Minister, appointed by the Queen of England from the majority party
in Parliament. The Queen was also the Commander-in-Chief. Legislative prerogative was vested in the
Queen and a two-chamber parliament called a National Assembly.
The National Assembly consisted of a Senate, designed to represent regional interests, and a House of
Representatives, designed to represent national interests. The constitution also established a system of
regional government which replaced the old provinces.

0.2.2.5. The 1964 Constitution

The Constitution was fundamentally changed in 1964 following a parliamentary amendment. Kenya
became a republic and the executive became presidential. The senate and regions were also abolished.

This ushered in a period of many minor constitutional amendments combined with measures, which, by
the beginning of the eighties, had effectively transformed Kenya into a de facto one-party state led by the
KANU. The development of the post-independence or one-party state constitution

0.2.2.6. The 1982 Constitutional Amendment

Limited constitutional review in June 1982 officially transformed Kenya into a one-party state. Subsequent
parliamentary elections in 1983 and 1988 further reinforced the one-party system. The development of
the post-Cold War or multi-party constitution

0.2.2.7. The Constitutional Amendment of 1991

By the end of the 1990s, institutional decay, economic and social breakdown, agitation from reform
movements that dated back to the 1980s combined with international pressure for good governance and
the end of the Cold War ushered in a new wave of democratization in Kenya that pushed for fundamental
institutional reforms.

This would later provoke the most comprehensive constitutional review process since the adoption of the
independence constitution of 1963. A parliamentary act in December 1991 repealed the one-party system
provisions of the constitution and effectively established a multiparty system. Multiparty elections were
held the following year in December.

0.2.2.8. The 2000-2004 constitutional review process

Following the general elections of 1997, Parliament, on the initiative of the government, passed the
Constitution of Kenya Review Act (2002), which created the legal framework for comprehensive
constitutional reforms. In furtherance of the Act's provisions, a constitutional review body, Constitution
of Kenya Review Commission (CKRC) headed by Professor Yash-Pal Ghai, was established to provide civic
education, seek public input and prepare a draft constitution for consideration by an enlarged National
Constitutional Conference (NCC).

The NCC, referred to as the Bomas was comprised of all members of parliament, 42 representatives from
political parties, 3 delegates from each district, 125 representatives of religious groups, women's groups,
youth groups, the disabled, trade unions and NGOs.

Unfortunately, the process was derailed by deep politicization and disagreements among the
stakeholders, resulting in the rejection of the Commission's draft constitution in the constitutional
referendum of 2005.

0.2.2.9. The 2009 constitutional review process

The 2009 constitutional process was a sequel to the 2000-2004 process. The rejection of the draft
constitution by Kenyans in the referendum of 2005 meant that the 1963 constitution remained the basic
law of Kenya. Disputed presidential election results in 2007 provoked an unprecedented wave of political
violence and killings across Kenya claiming over 1000 lives and causing the displacement of hundreds of
thousands.

An AU-brokered power sharing deal subsequently ended the conflict and created a government of
national unity between rival factions. The deal also provided for constitutional reforms. Under the
Constitution of Kenya Review Act 2008 (CKRA), a Committee of Experts (CoE) was established as the main
technical organ to drive the process. The CoE was given12 months to produce a draft to be submitted to
referendum. Members of the CoE were appointed on 23 February 2009 and sworn in on 2 March 2009.
They were:

Mr Nzamba Kitonga, Chairperson

Ms Atsango Chesoni, Deputy Chairperson
Ms Njoki Ndung'u,
Mr Otiende Amolo
Mr Abdirashid Hussein
Mr Bobby Mkangi
Dr. Ekuru Aukot
 Professor Christina Murray (South Africa)
Dr Chaloka Beyani (Zambia)
Dr Frederick Ssempebwav (Uganda)

The CoE were to identify and resolve outstanding issues before preparing a draft constitution for adoption
by Parliament and ratification in a national referendum. The CKRA also created two other organs to help
with the process: the twenty-seven member, multiparty Parliamentary Select committee; the National
Assembly. The overriding principles of the process was the creation of a document that protected national
issues over regional or sectorial interest and made the government accountable to the people.

The Act called for a twelve months review process, dating from the commencement of the Act, on 22
December 2008. However, because the CoE was not sworn in until 2 March 2009 the process had to be
rushed in some areas. The CoE felt that it was important to complete the process within the statutory
timeframe. The window for reform would close if the referendum did not take place by mid-2010 due to
the 2012 election. The CoE convened reference groups and conducted civic education.

The Committee worked to ensure the public understood the process, explaining the mandate in public
hearings held in different parts of the country. General debates and public awareness initiatives on the
process were held, as well as meetings with the various stakeholders.

The content of the drafts and the changes that were made as the constitutional review process
progressed, were explained directly to the public during dissemination as well as in the newspapers, on
radio, and television. Moreover, the CoE prepared materials for civic education on the Proposed
Constitution for training civic educators, explaining the content of the Proposed Constitution in fuller and
simplified versions, and in the newspapers. Constituency Civic Educators were recruited for each
constituency and Provincial Coordinators of civic education were also recruited for each region.

The CoE collected over 26,451 memoranda and presentations from members of the public within eight
months. Submissions came from various facets of society including: organized groups, political parties,
religious organization, statutory bodies and civil society.

To gather these comments the CoE constituted itself into three groups and held eighteen public hearings
in the eight provinces from 20 to 25 July 2009. The CoE held technical thematic consultations on areas
that had been deemed contentious and then held sector specific consultations on these areas;
 Executive
Legislature
Judiciary
Devolution
Dual Citizenship

0.2.3. SUMMARY OF TIMELINE

600 Arabs traders began settling along the coastal areas.

16th Century Omani Arabs consolidate control of the coast.

1895 Kenya becomes British protectorate.

1920 East-Africa protectorate because Crown Colony of Kenya.

1944 Kenyan African Union is formed to campaign for African independence.

1963 Kenya gains independence and Jomo Kenyatta is installed as Prime Minister.

1964 Constitution is amended to declare Kenya a Republic and Kenyatta become Kenya’s first
President.

1966 Provisional Assembly is scraped and the bicameral Parliament becomes the unicameral
National Assembly

1969 New Constitution adopted, consolidating the changes made to the 1963 Constitution and
further strengthening the powers of the President.

1983 Multiparty and secret ballot systems abolished. Kenya is a single party state led by the
KANU

December 1991Multipart system is reintroduced allowing for the setting of term limits for Presidents

2000 Daniel arap Moi sets up the Commission for Constitutional Reform of Kenya to lead
Kenya’s first major constitutional reform.
November 2005 Referendum defeats the government’s draft constitution.

28,February The National Accord and Reconciliation Act (NARA) for the drafting of a new constitution
2008 - is signed by President Kibaki and Prime Minister Raila Odinga to end violence that
erupted after the December 2007 presidential elections.

2008 A new Constitution of Kenya Review Act is passed establishing a Committee of Experts
(CoE) with a 12 months mandate to coordinate the constitutional review process and
prepare a draft.

23,February Members of the CoE are appointed by the President

2009

2 March 2009 Members of the CoE are sworn in

March- CoE finalizing draft constitution

October,2009

17,November CoE releases draft to the public and invites views and comments on the draft
2009

15,December The grand coalition committee on consensus building on constitution reforms held its
2009 third meeting

17,December Deadline for comments to be submitted by the public and political parties to the CoE on
2009 the draft constitution

Early,January CoE submits revised draft to Parliamentary Select Committee

2010

End,January Committee of MPs submit their recommendations on the draft constitution to the CoE
2010

2 February 2010 The PSC submits its recommendations on the draft constitution to the CoE
28,February CoE submits The Proposed Draft Constitution of Kenya to the National Assembly.
2010

2,April 2010 National Assembly unanimously adopted the document without any amendments

6,May 2010 Attorney General official publishes the proposed draft constitution of Kenya

4,August 2010 Kenyans overwhelmingly vote for the new Constitution.

27,August 2010 Kenya’s Constitution is promulgated.

0.3. SOURCES OF CONSTITUTIONAL LAW

0.3.1. Legislation or (statute law)

This is law made by parliament directly in exercise of legislative power conferred upon it by the
constitution e.g. Judicature Act, Kadhis Court Act companies Act. It is recognized by section 3(1) (b) of the
Judicature Act as a source of law under the phrase: Certain Acts of the UK parliament applicable in Kenya.
Certain Acts of Indian Parliament. Certain Acts of Legislative council. Acts of Parliament.

0.3.2. Delegated legislation:

It also referred to as sub-ordinate, indirect or subsidiary legislation. It is law made by parliament indirectly.
These are by-laws, orders, rules, regulations, proclamations made by sub-ordinate bodies for example
local authorities, professional bodies, Government ministers and statutory bodies in exercise of delegated
legislative power conferred upon them by parliament through an enabling or parent Act.

0.3.3. Statutes of General Application

These are certain statutes enacted by the U.K parliament to regulate the conduct of the inhabitants of the
UK generally. They are recognized as a source of law of Kenya by section 3 (I) (c) of the Judicature Act.
However their application as a source of law is qualified.
 0.3.4. Common Law

This may be described as a branch of the law of England which was developed by the ancient common
law courts from the customs, usages and practices of the English people. These courts applied the people’s
way of life in the settlement of disputes thereby giving such customs the force of law. It is an unwritten
source of law whose application is qualified by the section 3(I) (c) of the Judicature Act.

0.3.5. Equity

Equity ordinarily means fairness or justice. It is that branch of the law of England which was developed by
the various Lord Chancellors courts to supplement the common law. It developed to mitigate the
harshness of the common law. Its application is qualified by section 3 (I) (c) of the Judicature Act.

0.3.6. Case law or Judge Made Law

These are principles or propositions of law made by judge when deciding cases before them which are
applied in subsequent similar cases. Judges make law when they formulate or enunciate principles or
propositions of law where non-existed or in doubtful situations which are applied in subsequent similar
cases. This source is recognized by section 3 (I) (c) of the Judicature Act and has wide application.

0.3.7. African Customary Law

African customary law is based on customs, usages and practices of the various ethnic groups of Kenya.
These customs and usages generally lack universality and so is African Customary Law. A custom embodies
a principle a principle of utility or justice. However, not all local customs may be relied upon by court of
law in the settlement of disputes. A good local custom must be reasonable consistent with written law
and must have been observed openly since time immemorial. It is recognized by section 3 (2) of the
Judicature Act.

Lesson Activity:

 What is Constitutional Law in your own definition?

 What are the 10 countries with the oldest constitutions?
 Discuss briefly in about 3 minutes the historical development of the Kenyan constitution.
 Discuss the Primary Sources of Constitutional Law.