Kenya Universal Suffrage History

Introduction

The history of universal suffrage in Kenya is a complex and evolving narrative, marked by significant milestones and persistent challenges. This article explores the journey of enfranchisement in Kenya, from the early days of limited voting rights to the present-day pursuit of true electoral gender parity. It examines the historical context, key legislative changes, and ongoing struggles that have shaped the landscape of voting rights in the country.

Early Elections and Limited Suffrage

Nationwide elections have been a part of Kenya's political landscape since 1920, when the first elections to the Legislative Council were held. Initially, the legislature comprised 11 elected Europeans and three appointed members representing Indians and Arabs, along with several nominated officials. By the next elections in 1924, suffrage was extended to Indians and Arabs, granting five seats to the Indian community and one to the Arabs, in addition to one seat appointed to represent the majority African population.

However, the Indian community's demand for equal representation with the Europeans was not met, leading to a boycott of the elections, with no Indian candidate standing. Despite this, all five Indian seats were filled by election in the 1931 elections, and subsequent elections took place under the same system in 1934, 1938, 1944, and 1948.

Towards Universal Suffrage

Prior to the 1952 elections, the number of European seats was increased to 14 and the Indian seats to six, with six African members appointed. The 1961 elections marked a significant step towards universal suffrage, although 20 of the 65 seats in the expanded Council were still reserved for Europeans (10), Indians (8), and Arabs (2). The Kenya African National Union (KANU) emerged as the largest party, winning 19 seats and securing 67.5% of the vote.

The electoral system underwent further changes before the 1963 elections, with the creation of a 129-seat House of Representatives and a 38-seat Senate. These changes paved the way for greater representation and participation in the political process.

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Women's Enfranchisement: A Pioneering Step

The enfranchisement of women in Kenya is a noteworthy chapter in the country's history. Although few women were eventually elected (or even nominated) to the Kenya Legislative Council in its lifespan (August 1907 to December 1963), the pioneers go down in history as some of the earliest women to be enfranchised anywhere in the world. They took advantage of their right to vote to also to seek electoral office. Their counterparts in Britain and most of Europe and the United States were still not eligible to freely vote by 1920 when the women of Kenya voted for the first time. In Britain for instance, women could only vote if they were over the age of 30, were married, or held a university degree. That requirement did not apply in Kenya in 1920, and so the election of 1920 was the first step to electoral gender parity.

The participation of women in electoral voting is still a cause of concern in Kenya today with many hurdles hindering their participance. Many barriers have been identified including culturally motivated perceptions against women’s leadership, lack of financing, and lower education levels among others. In the first five Parliaments of Independent Kenya, only 5 women were elected and just 3 were nominated. In all, less than 30 women were elected in the lifespan of the first ten Parliaments as compared to over 400 men in the period 1963 to 2013. The women in the early Parliaments overcame insurmountable challenges to get to where they got. It was only after the promulgation of the Constitution of Kenya (2010) that the minimum number of seats for women in Parliament was defined under the gender rule. But while women are now assured of at least a third of the seats in Parliament, the practical part of it has become a nightmare to implement, both politically and practically. Various efforts to find a solution in the 11th and 12th Parliaments proved futile. Those against it have argued that making it easier to increase the number of women in Parliament diminishes the value of the office altogether. Those against this position argue that despite having an equal right with the men to vote and to be voted in, there are many structural and other barriers that prevent women from fully and freely running for office.

Post-Independence Electoral Developments

Multi-party politics remained in place for a few years after independence; when several KANU MPs left the party to form the Kenya People's Union (KPU) in 1966, a constitutional amendment was passed requiring them to face by-elections. This came to be known as the little general election, in which the KPU received a majority of the vote, but KANU won more than 60% of the seats. Later in the year the Senate was abolished, as it was merged with the House of Representatives to form the National Assembly. The KPU was subsequently banned in 1969 and Kenya became a one-party state.

With the wave of democratisation sweeping across Africa in the early 1990s, multi-party politics was reintroduced, together with the direct election of the president. General elections took place in 1992, and saw KANU retain control of the government, with President Daniel arap Moi re-elected with 36% of the vote and KANU winning 100 of the 188 seats in the National Assembly.

The 2002 elections saw KANU's first defeat; Moi stood down and the KANU candidate Uhuru Kenyatta was defeated by Mwai Kibaki of the National Rainbow Coalition (NARC) alliance. NARC also won a majority in the National Assembly. However, the coalition fell apart as a result of the 2005 referendum, and Kibaki's former ally Raila Odinga became his principal opponent in the 2007 elections. Although Kibaki was declared the winner in the presidential contest, opposition parties won a majority of seats in the National Assembly. Accusations of electoral fraud were made, resulting in violence that left around 1,000 dead.

The 2010 Constitution and Electoral Reforms

A new constitution was introduced in 2010, and the first elections were held under it in 2013. Running as the Jubilee Alliance candidate, Uhuru Kenyatta defeated Odinga, receiving 50.5% of the vote. Although Kenyatta's National Alliance emerged as the largest party in the re-established Senate, Odinga's Orange Democratic Movement won the most seats in the National Assembly, with 96 of the 349 seats.

The 2017 general elections saw Kenyatta defeat Odinga again for the presidency, with Kenyatta's Jubilee Party winning the most seats in the National Assembly and Senate. However, the presidential election results were annulled and a re-run held in October, which was won by Kenyatta after a boycott by Odinga.

The 2010 constitution provides for a two-round system for presidential elections, the president having previously been elected on a first-past-the-post basis.

Challenges to Democratic Transition

Kenya’s transition to a multiparty democracy in 1991 was one of the most promising cases of political change in Africa. Before then, the Kenya National Union Party (KANU) had monopolised power since outlawing political opposition in 1982. The transition from a single to a multiparty state was a truly significant event. KANU faced its first real challenge since independence in multiparty presidential elections held in 1992. But the party didn’t lose its grip on power until president Daniel arap Moi lost to opposition leader Mwai Kibaki in the 2002 elections.

Despite this history of political instability, the country’s new democratic direction was seemingly confirmed when the Kenyan Supreme Court overturned the results of the August 8, 2017 elections. In a historic ruling for Africa, it called for the presidential election to be repeated. Initially many praised the court for upholding democracy. But weeks later the same court upheld Kenyatta’s second victory. A spokesman for the opposition coalition speculated that members of the Supreme Court were intimidated.

The turn of events in favour of President Kenyatta is not surprising. It suggests that the process of free elections was never intended to help the country democratise. This mirrors events in other seemingly transitioning countries such as Zimbabwe or Senegal. What is more, the process of opening up the political system could - in and of itself - never have been expected to deliver democracy. This was the case in Ukraine, where shortly after the fall of the Soviet Union elections were expected to bring about a process of democratisation similar to Poland’s in 1989. But democracy never arrived in the Ukraine. Instead it plunged deeper into authoritarianism.

In Kenya’s case, elections have been used to bolster the legitimacy of an autocratic regime. While Kenya holds free and regular elections, political elites regularly intimidate political opposition as well as journalists and the judiciary. This effectively skews the results of each election in favour of the government.

Recent research on transitioning countries looks at how they have held regular multiparty elections at the national level, yet violated democratic minimum standards. The research suggests that since the end of the Cold War countries like Kenya, Turkey, the Ukraine and Zimbabwe have turned into the most common form of nondemocratic rule in the world. As multiparty states they have combined elements of both democracy and autocracy. Their rulers have learnt to use free multiparty elections in their favour.

Defining Democracy and Kenya's Challenges

Definitions of democracy vary. But most scholars agree that to complete their transitions countries, including Kenya, would have to meet a number of criteria. These include free, fair, and competitive elections, full adult suffrage, freedom of the press, speech and association, and an executive free from external influence. The last point indicates that no military, religious or civilian organisation in the country can override the decisions of a fairly elected executive.

While Kenya certainly meets many of the criteria it struggles to meet two in particular. The first is fair elections. The country has held regular free elections since 1991 and it allows a number of political parties to take part. But the elections can’t be described as having been fair. A recent Amnesty International report has condemned Kenya for routinely targeting political opposition in an effort to dissuade them from challenging the government. This includes arbitrary arrests and even killings by the police in the 2017 elections.

The second criteria that Kenya fails on is freedom of the press, speech and association. For a country to be democratic it should allow basic political freedoms for its citizens and institutions. This has not been the case in Kenya. For example, the International Federation of Journalists recently reported that journalists were routinely harassed and intimidated by the police and political party supporters in the 2017 elections. Similarly, the bodyguard of one of the judges was shot a day before the court’s scheduled ruling on a motion to delay the repeat vote.

As a result of these serious shortcomings, Kenya cannot be viewed as a democracy. The playing field remains uneven despite major constitutional changes to guarantee an independent judiciary and to establish a separation of powers in the government.

There have been clear examples - Poland in 1989 and South Africa in 1994 - of where elections helped many countries successfully transition. But elections, even free and competitive, don’t always mean that the country is more democratic. Kenya’s ruling elite too has learnt to use elections to its advantage. Instead of weakening the elite’s grip on power, the elections might actually make them stronger.

Constitutional Review Process

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. 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 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 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. Limited constitutional review in June 1982 officially transformed Kenya into a one-party state.

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. 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.

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. Dr. 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.

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.

In the wake of the violent elections of 2007, a power sharing deal was facilitated by former UN Secretary-General Kofi Annan between the incumbent President, Mwai Kibaki, and the opposition leader, Raila Odinga. The balance of powers between the President and Prime Minister was a source of contention during the drafting process. The options presented were to have a purely presidential system, a purely parliamentary system or a ‘mixed' system with a President and Prime Minister sharing power. The CoE opted for a mixed, semi-presidential system. The draft constitution submitted by the CoE reduced the powers of the President and gave responsibility for the daily operations of government to the Prime Minister.

Discussions during the drafting phase regarding the legislature focused on the powers of the second chamber of the legislature in relation both to the first chamber and to the Executive. The draft proposed a bicameral Parliament, with the upper chamber being the Senate and the lower chamber, the National Assembly. The Senate would have approximately 94 members. Each county would elect one Senator, each region would elect two women Senators and each region would elect one person with a disability or youth.

The draft proposed four superior courts: the Supreme Court, the Court of Appeal, the Constitutional Court and the High Court. Additionally, it proposed that current members of the judiciary may only retain their posts after going through a vetting process to clear them of misconduct and corruption. An Interim Judicial Service Commission was created responsible for vetting sitting judges.

During the drafting process there was a consensus that powers of government should be shared between a central government and one or more devolved levels of government. The draft proposed devolution of state power to regions, to replace provinces; as well as the regulation of the relationship between the central government and the regions. While the need for decentralization of state power was recognized, there were concerns about the potential unintended effects of devolution.

Prior to the 2009 draft constitution, Kenyans could not hold dual citizenship. The draft constitution allowed Kenyan citizens to acquire the citizenship of a second country. On 17 November 2009, the CoE released the draft of the constitution which was submitted to the general public for commentary over a 30-day period. After the public’s 30-day period the CoE then had 21-days to revise the draft in light of the public’s views. The CoE then submitted the revised draft, together with a report, to the Parliamentary Select Committee (PSC) “for deliberation and consensus building on the contentious issues.”

The PSC returned the draft to the CoE on 2 February 2010 with proposals for changes to the Revised Harmonized Draft Constitution. The CoE then 21 more days to review this new draft taking into account the PSC’s recommendations. For the most part the PSC had not amended the draft fully and requested the CoE to make adjustments to ensure that the Proposed Constitution of Kenya would contain appropriate checks and balances to ensure a sound democratic presidential system of governance for the people of Kenya, in keeping with the principles established in the Review Act.

On 28 February 2010 the CoE submitted the Proposed Constitution of Kenya to the National Assembly (NA). The NA had 30 days to deliberate and approve the document, or recommend amendments. On 2 April 2010 the Assembly unanimously adopted the document without any amendments. The document was then sent to the Attorney General for publication and was officially published on 6 May 2010. The Interim Elections Commission then set out to framing the referendum question on 13 May 2010. The question was framed in both English and Kiswahili as: “Do you approve of the proposed New Constitution?” This was a yes or no question. Due to the high level of illiteracy in the country, visual symbols and aids such as colors were utilized to ensure voters were certain about the choices that they were making. Green symbolized “yes” and red “no”.

The referendum was held on 4 August 2010 and an overwhelming majority voted in favour the proposed Constitution. The two primary actors were the political party of the President, the Party of National Unity (PNU), and the political party of the Prime Minister, the Orange Democratic Movement (ODM). The two parties separately presented their views on the draft constitution to the CoE. While the grand coalition committee on consensus building on constitution reforms met several times and agreed, in principle, on a hybrid semi-presidential system, they disagreed on the division of powers between the president and the prime minister.

Kenya’s long constitutional review process finally came to end when the people overwhelmingly voted for the adoption of the new Constitution on 4 August 2010. The constitution has enjoyed tremendous support both abroad and at home. The document introduces far reaching changes to Kenya’s system of governance. The government is decentralized, creating the national government and the county government. A system of check and balanced is ensured between the executive, legislative and judicial. The Constitution introduces a Bill of Rights that seeks to protect and promote social, economic and political rights of Kenyans. The protections of socio-economic rights are also an important addition by the 2010 Constitution. Although with promulgation the entire Constitution came into force with immediate effect, various portions of the document had to be implemented through supporting legislation. The Commission for the Implementation of the Constitution (CIC) and the Constitutional Implementation Oversight Committee (CIOC) were established to ensure that the process was carried out smoothly. The Commissions have oversight capacity and create policies to guide the process. The CIC has a five years mandate or until the Constitution is fully implemented, whichever comes first. Legislation addressed issues such as: citizenship, elections, ethics and corruption, political parties, system of courts and Kenya National Human Rights and Equality Commission.

Government Structure under the 2010 Constitution

As set forth in article 131, the President of the Republic of Kenya is the Head of State, the Head of Government and Commander in Chief of the Kenya’s Defense Forces. Presidential candidates must have been Kenyan citizen at birth; nominated by political party or are independent candidates; nominated by at least 2000 voters in each of the majority of the counties, and qualified to be a member of parliament. If only one candidate is nominated, then that person is declared President. He is elected by universal adult suffrage for a five year term. Subject to the approval of Parliament, the President appoints the Chief Justice, the Attorney General, Ambassadors/High Commissioners, etc. The government is made up of no more than 22 and no fewer than 14 Cabinet Secretaries. The Cabinet also comprises the President and the Deputy President and the Attorney General., Cabinet members cannot be members of the Parliament. The Cabinet determines, formulates and implements the policy of the Government and is overseen by the President.

The Bicameral legislature comprises the National Assembly (NA) and the Senate. The NA represents the all Kenyans and controls the…

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