KENYA       Institutional Situation

  This section has been updated by Mr Boubacar Issa Abdourhamane,
a doctorate student at the CEAN, IEP – Montesquieu University of Bordeaux

Democratic Process

The former British colony of Kenya gained independence on 12 December 1963. The current Constitution was adopted on the same day and has been amended several times. On 14 October 1978, after the death of the country’s first president, Jomo Kenyatta, Daniel arap Moi took over. His reign was to be unbroken and, thanks to the single party called the Kenya African National Union (KANU), his regime, renowned for its authoritarian ways, exerted strict control over all the professional organisations in the country. The first major political mobilisations against this regime came in early 1990, following the suspicious death of Robert Ouko, the Foreign Minister. These events led to the gradual emergence of a coalition of political and social forces against the regime in place.
Criticism and street demonstrations demanding political and constitutional changes, in particular the repeal of the single party system, spread throughout the country, especially in the principally Kikuyu regions. The regime’s repressive machine came into action: several opposition leaders were arrested and repressive measures were used against the demonstrators, dozens of whom were killed and around a thousand imprisoned. The heads of the Church also denounced the authoritarian ways of the arap Moi regime. The main opposition leaders, grouped together in a political coalition called the Forum for the Restoration of Democracy, had to face the repression of the regime, which was unwilling to grant the changes demanded. In December 1991, under pressure from internal political forces and the international financial community, the government gave in, doing away with the single party arrangement. However, the regime still put many obstacles in the way of the opposition parties.
The arap Moi regime organised the first elections in a context of restricted freedom and manipulated the electoral rules. The president of the electoral commission reports directly to the President himself, who may give him instructions. And so it was that in the first elections of 29 May 1992, President Moi was elected with 36% of the vote, against 26% for Matiba of FORD-A, 19% for Mwai Kibati (DP) and 17% for Raila Odinga (FORD-K). As regards the Assembly, the incumbent party KANU won 100 seats, thereby obtaining an absolute majority. The President and his party benefited from splits in the opposition and the control of the State apparatus to keep hold of power.
In the latest elections of 29 December 1997, Daniel arap Moi was once again elected for another 5-year term, with 40.12% of the vote. His opponents obtained respectively 31.09 for Mwai Kibaki of the Democratic Party of Kenya (DP), 10.02% for Raila Odinga of the National Democratic Party (NDP), 8.29% for Michael Mawalma of the Forum for Restoration of Democracy in Kenya (FORD-K) and 7.71% for Charity Ngilu of the Social Democratic Party (SDP). In these 1997 elections, the incumbent KANU won 114 seats, against 41 for the DP, 22 for the NDP, 18 for the FORD-K, 16 for the SDP, 5 for the SA, 3 for the FORD-P, 1 for the FORD-A and 2 for other political parties. The President obtained a parliamentary majority. These parties contested the legality of the elections and accused the KANU of mass fraud. The splits between these parties partly explains why there has been no change at the head of the State. The opposition continued to demand constitutional reforms to bring about democracy in the country.
Under international pressure, President arap Moi announced a few reforms with a view to broadening political representation and fighting against corruption. As part of these moves, he appointed Richard Leakey, an internationally-renowned palaeontologist, as Minister for the Civil Service. He has also reduced the number of government members from 27 to 15. However, the President’s caciques, such as Nicholas Biwott (Minister for Tourism, Commerce and Industry), Nassir Sharif (member of presidential cabinet) and George Saitoti (Vice President), have kept their influence.
The current presidential term comes to an end in 2002 and, at the end of the Constitution, he will no longer be allowed to stand. However, his supporters, including some ministers, are militating for a constitutional reform which would enable the President to stay in power after this time.

Political Institutions

The Kenyan constitutional system is based on a strong presidential regime. According to the terms of the Constitution, the President is both Head of State and of government and he also controls the administration. He is commander in chief of the army and has wide-ranging prerogatives with regard to maintaining order. Candidates at the presidential election must be of Kenyan nationality, at least 35 years old and registered as an elector in a constituency. The President is assisted in his functions by a Vice President, whom he appoints from among the elected members of the Assembly.
The Assembly has only one chamber. It is composed of 224 members, including 210 members of parliament and 12 members appointed by the President. The term for members of parliament is five years. The Speaker of the Parliament is Francis K.X. Olé-Kaparo, elected in 1997 in a private ballot by two thirds of the members of Parliament, excluding non-elected members. The High Court of Justice has constitutional jurisdiction and the Constitution gives it jurisdiction to decide on conflicts arising from the application of the Constitution.

Legal System

The Kenyan legal system is organised hierarchically. First there is the High Court, which is competent for civil, criminal and constitutional matters. It is made up of a president and 11 judges. Next comes the Appeal Court, and finally, many district and provincial courts. As well as European-inspired law, Kenyan justice recognises Islamic law and local customs in the settlement of personal litigation (divorce, etc.). In March 2000, President Daniel Arap Moi announced a set of institutional reforms to adapt the laws to Kenyan reality. This reform will affect the penal code, legislation regarding children, intellectual property rights, etc.

Decentralisation and Devolution

In recent years Kenya has seen violent ethnic conflicts revolving around the question of the organisation of territory and the division of national resources between the various communities and regions. The country is divided into 63 rural districts, each of which is run by a commissioner appointed by the President. These districts are grouped together to form the 7 provinces of the country: Central, Coast, Eastern, North East, Nyanza, Rift Valley and Western. The capital, Nairobi, has special status. The government administers all the districts, the provinces and the capital. The commissioners of the provinces are responsible for education, health and transport in their zone, while the province councils are responsible for the public services funded by local taxes and State aid.

Political Parties

Democratic party (DP) run by Mwai Kibaki
Forum for Restoration of Democracy – Asili (FORD-A) headed by Martin Shikilu
Forum for Restoration of Democracy – Kenya (FORD-K) led by Michael Wamalwa
Forum for Restoration of Democracy – People (FORD-P) run by Kimana Wa Nyoike
Kenya African National Union (KANU) headed by Daniel Arap Moi
National Development Party (NDP) led by Raila Odinga
Safina (SA) run by Dr Richard Leakey
Social Democratic Party (SDP) headed by Charity Ngilu

Trades Unions

In 1993 the principal union confederation of the country (COTU) decided to break off its institutional links with the government but the government has never wanted to guarantee the autonomy of this union which had been affiliated to the KANU party since 1965. Several workers in the public sector are not allowed to belong to union organisations, and the right to strike is subject to all sorts of draconian conditions. Clashes between workers (teachers, bank staff, doctors) and the State have multiplied, as have movements by workers for the improvement of their living conditions.

Human Rights

Human rights have been respected since the introduction of a multipartite system in Kenya, and the press has relative freedom. The Constitution guarantees civil and political liberty. Nevertheless, several cases of attacks against political activists, human rights defenders and journalists have been signalled by international human rights organisations. Ill-treatment and conditions of detention have also been denounced by Amnesty International.
The principal Kenyan human rights organisations are: the Kenyan Human Rights Commission (KHRC) formed in 1991 and authorised in 1994; the pressure group for the liberation of political prisoners (RPP); Citizens for Constitutional Change (4Cs); Muslims for Human Rights (MUHURI); the Kenyan Pastors Forum (KPF); the Kito Cha Sheria which trains and gives legal assistance to the underprivileged. The country is also home to many refugees escaping the conflicts in the African Great Lakes Region and who are under the responsibility of the international humanitarian organisations.

Media

The main newspapers are: The Daily Nation (government-run, printed in English and Swahili), The Express (private), The Guardian (private), East African, Coast Week. The country also has several public and private radio stations and eight television channels.
Freedom of the press is guaranteed in principle, but several cases of violation of the rights of journalists have been signalled. Journalists from the written press are the most exposed to these violations.