User:Richard A. Otene

EVOLUTION AND DEVELOPMENT OF THE KENYAN CONSTITUTIONAL ORDER

The evolution and development of the constitutional order in Kenya can be traced to the declaration of the British East Africa Protectorate on 15 June 1895. The declaration of protectorate status marked the beginning of direct administration by the British government of a territory that had previously been administered by Sir William Mackinon under the Imperial British East Africa Company under Royal Charter and as such a one state. Initially, the protectorate did not have any form of political governance and was for all purposes regarded as a consular district of the Sultanate of Zanzibar. In 1897, the first signs of organized administration emerged with the promulgation of the East Africa Order in Council. The Order's provisions defined the territorial jurisdiction of the English monarch over the protectorate. The Office of the Commissioner of the East Africa Protectorate was established, and the Commissioner was empowered to set up administrative institutions for the purpose of effective governance. The Commissioner was vested with powers which authorized him to make laws known as the Queen's Regulations and to establish courts to enforce those laws. In all his operations, the Commissioner was answerable to and subject to the Secretary of State. Pursuant to his powers, the Commissioner made provision for taxation and appointment of headmen The Commissioner's powerful position was further enhanced by the East Africa Order in Council, 1902. The Commissioner was granted authority to partition the protectorate into such provinces or districts for purposes of administration as he deemed fit. His legislative powers were increased and his enactments, now known as ordinances, were no longer subject to the approval of the Secretary of State. Officials in the public service held their offices at his pleasure.

Further consolidation of the Commissioner's powers came by way of the East Africa Order in Council (1905) which changed his designation to Governor and Commander-in-Chief of the Protectorate. The Governor was empowered to appoint all judicial officers including judges of the High Court. In 1920, the British East Africa Protectorate became the Kenya Colony by virtue of the Kenya (Annexation) Order in Council of that year. The implication of this was that the territory no longer was governed under the provisions of the Foreign Jurisdiction Act (1890). The British government was enjoined by the British Settlements Act (1887) to assume legal duties of a different nature from those required in a foreign territory governed under the former statute. One of those duties was to ensure the establishment of a Legislative Council in order to assume the Governor's legislative powers The idea of an entrenched bill of rights in the Constitution first arose in 1960 when it became apparent that Kenya, like most British colonies at the time, was heading towards independence. The principle of a bill of rights was accepted at the Lancaster House constitutional conference of that year. Her Majesty's government was of the firm view that legal provisions for the judicial protection of human rights were essential in the proposed Kenyan Constitution. However, a bill of rights was not incorporated into this Constitution. It became part of the Constitution through a constitutional amendment in December 1960. The Bill of Rights guaranteed traditional civil and political rights as set out in the Universal Declaration of Human Rights and guaranteed equality of economic opportunity. Although human rights advocacy in Kenya preceded the introduction of the Bill of Rights, its incorporation in the Constitution is wholly attributable to British authorities. They made this a precondition to independence. It would appear that a bill of rights was not a priority issue for African leaders at the constitutional conferences. Their prime concern was independence, the transfer of power to Kenyans and power sharing among Kenyans upon independence. The Kenyan Bill of Rights, therefore, like those of many former British colonies, cannot be said to be representative of a set of higher values emanating from, and subscribed to, by the Kenyan people. Indeed, it was meant to be nothing more than a bulwark against political power in the hands of 'natives', primarily to protect the interests of European settlers.