When it comes to the Constitution of Kenya, everyone remembers the so-called Wako Draft which was rejected in the 21 November 2005 referendum. But perhaps only a few recall Kenya’s longest serving Attorney General’s first attempt to reform the constitution in 1992, shortly after he came into office.
As Katiba Week is relegated to the past and recedes into the rearview mirror until next year, I dig into the newspaper archives at the MacMillan Library and into my own files to put together the story of the 1992 Wako Bill, formally known as the Constitution of Kenya (Amendment) Act, 1992, what it promised, and how it came a cropper.
Was the Wako Bill the work of a reformist working within the constraints of a famously reactionary system? Was it a cynical red herring aimed at getting foreign donors to loosen the purse strings? Or was it one of President Moi’s trial balloons?
You be the judge. But first, a little context, starting with the 2005 Wako Draft.
The Wako Draft was named after its principal author, the then Kenyan Attorney General, Amos Wako. It was the result of tinkering with the so-called Bomas Draft, some might say maliciously, by AG Wako and Parliament’s Select Committee on Constitution Review.
Similarly, the Bomas Draft got its name because it was prepared by the Constitution of Kenya Review Commission (CKRC) and endorsed by a National Constitution Conference held at the Bomas of Kenya.
In November 2005, ahead of the referendum to reject or ratify the Wako Draft, IRIN News, now known as The New Humanitarian explained here: “The Wako Draft is the final result of a complicated “people-driven” process to rewrite the constitution, which began with the enactment of the Constitution of Kenya Review Act of 1997.
“One of the objectives of the review was to reduce the excessive powers vested in the presidency. Another was to decentralise the government and bring it closer to the people.
“These objectives and other rights-based issues were incorporated in the so-called Bomas Draft. The draft, however, was by no means a consensus: Some of the delegates to the Bomas assembly walked out in disagreement before the final document was put to vote.
“Later subsequent initiatives, aimed at consensus and reconciliation, produced the Naivasha Draft and finally the Wako Draft, the subject of the referendum on Monday [November 21, 2005].
“The Bomas Draft has been consigned to history, though it remains the reference document for those opposed to the Wako Draft.”
As I pointed out above, the 2005 Wako Draft was not Amos Wako’s first constitutional rodeo, so to speak. Back in March 1992, less than a year after his surprise appointment as AG in May 1991, Amos Wako had come up with another draft to amend Kenya’s much amended 1963 Constitution. Wako’s draft, which became a Bill, might have completely changed all future conversations about that constitution.
In a special Kenya Gazette issue, Wako announced that a Bill would be presented to parliament seeking to amend the constitution. This Bill would allow for, among other things, the abolition of the Vice President’s post and provide for the appointment of a Prime Minister and Deputy Prime Minister.
The Bill also proposed that the president be elected directly by the voters, as well as a limit to the presidential tenure of office to two five-year terms. Up until then, there were no presidential term limits in Kenya.
Clause 6 of the Bill would have enabled the incumbent to remain in office until the person elected as president in a subsequent presidential election took office.
The proposed amendments to Section 6 of the Constitution would also have empowered the president to appoint the Speaker of the National Assembly to deputise for him in case of illness. However, it stipulated that the Speaker would not act, except in accordance with a resolution of the cabinet in exercising powers relating to the preservation of public security; prorogation and dissolution of parliament and the appointment of a prime minister and his deputy ministers. Clause 5 of the Bill would have enabled the Speaker of the National Assembly to act when the office of the president was vacant until a presidential election was held. His powers would, however, be limited.
The Bill also gave the president the power to call a referendum whenever he considered it necessary in respect of any issue, question or matter. To do so, however, the president would have to receive a recommendation from parliament, supported by votes of no less than 65 per cent of all MPs. Such a referendum, if called, would be directed by the Electoral Commission in the manner prescribed under parliament.
In the Bill, the president would also have powers to sack or appoint civil servants, with the advice of the Public Service Commission.
Other amendments proposed in the bill were that the president would have to vacate office if he was found to have acted in wilful violation and disregard of the constitution, and if the issue has been referred to a referendum.
According to the Bill, when a president ceased to hold office, he would be entitled to pension allowances, adequate security staff and travel allowance. The Bill stipulated: “Such benefits shall not be varied during the President’s lifetime.”
In the Bill, the prime minister would have executive power and would be appointed from the National Assembly. The prime minister would have to be from the political party which the president considers the best able to command the support of the majority of members of the National Assembly. In appointing the prime minister, the president would have to give preference to the party with the majority of MPs in parliament.
The Bill stated that the president could remove the prime minister if parliament passed a resolution of no confidence and the prime minister failed to resign within three days. The prime minister could also be removed if after a general election there were changes regarding the party with the majority of seats. The Bill provided for the appointment of a deputy prime minister in consultation with the prime minister.
The Wako Bill stated that once elected, the president, the prime minister, the deputy prime minister and cabinet ministers would have to relinquish any positions they held in private companies, professional or labour organisations, or any public employment.
The Bill stated that the president was entitled to attend any meeting of the cabinet if requested by the prime minister, and in that event, would chair the meeting.
The Bill said, “The Prime Minister shall also be leader of the government business in Parliament, and shall coordinate the work of the cabinet, he shall keep the President informed of the general conduct of government and furnish him with any information he may require.”
Section 46 of the 1963 Constitution was also proposed for amendments, stipulating the exercise of legislative power of parliament and providing for the president to dissolve parliament after consultation with the prime minister and the Speaker.
Clause 27 of the Wako Bill defined the powers of the president in parliament. “He shall be entitled to address parliament and communicate trade through the speaker, and can attend all proceedings and vote if he wishes.”
The proposed amendments also stipulated the qualifications of those intending to contest the presidency and said that candidates would have to be nominated by a political party that took part in a general election and garnered the support of no less than 51 per cent of voters.
Reflecting Kenya’s political past since independence where it was normal for there to be only one presidential candidate, the Bill said: “Where only one candidate for President is nominated, he shall be declared president.”
In a memorandum of objects and reasons accompanying the Bill, Wako explained that the Bill also provided for the holding of a referendum and extended the functions of the Electoral Commission to include directing and supervising local government elections.
The wide-ranging Bill was seen as an attempt to introduce minimum reforms ahead of that year’s expected first multi-party elections in over two decades. Other measures it contained included provisions for legal aid in cases where a substantial allegation of infringement of human rights, under the then Constitution of Kenya, had been made.
The Bill also recommended the repeal of Section 127 of the constitution, under which the president could make regulations specifically for North-Eastern Province and contiguous districts.
The excitement in the country was palpable following the announcement of the Bill and its contents. With this Bill – coming on the heels of the repeal of Section 2A, which made the country a multi-party state once more – Kenya appeared to be on the fast track to change in time for the new dispensation following the first multi-party election expected to take place later in 1992.
This being not just Kenya, but still in very many ways Kanu’s and Moi’s Kenya, things were not all they seemed and nothing was ever straightforward. In fact, with hindsight, considering the times and the tone in the country, it was all too good to be true and the Bill was not so much for local consumption as it was for those holding the levers of power in donor countries.
This appeared to be the view of Kenya’s fledgling opposition parties which, after meeting to discuss the announcement of the Wako Bill, sensed that all was not as it seemed and pretty much dismissed it out of hand. Many saw the Bill as a tactic by Kanu and President Daniel arap Moi to maintain power while giving the appearance of reform.
There was also the fact that, since none of the members of the opposition were MPs, they would have no say in the Bill and so, whether the Bill was good or bad did not matter as Kanu MPs would have their merry way.
The politics at the time of the Wako Bill
Let me give you a little taste of the political scene at the time.
It was a time when there was a lot of talk of constitutional change in the run-up to the December 1991 repeal of Section 2A that returned the country to a multi-party state.
The newly appointed AG Amos Wako suggested that Kenya adopt a system of governance similar to that of France. Immediately following this suggestion, there was a flurry of excitement among politicians both within the ruling party and without.
Some observers even went as far as to suggest that this might be the perfect solution to Kenya’s problem at the time, which was that of a powerful presidency without any practical parliamentary checks and balances or, in the buzz phrase of the time, “transparency and accountability”.
In those days, many observers of Kenyan politics considered Wako to have reformist credentials, especially when held up against his predecessor, Justice Mathew Guy Muli. President Daniel arap Moi appointed Wako to replace a flagging Justice Matthew Guy Muli whom Moi then returned to the judiciary, this time as a judge of the Court of Appeal.
Muli’s tenure as AG since 1983 had been riddled with complaints from the legal fraternity over what was seen as his poor interpretation of the law. He had been appointed AG by Moi, replacing the hapless Joseph Kamere.
When Muli was appointed, one of his promises to Kenyans was that he would examine existing legislation with a view to introducing relevant amendments.
By 1990, things were beginning to heat up on the political scene, with both local and foreign pressure piling on the Moi government following the murder of Foreign Affairs Minister Dr Robert Ouko in February.
In that year, Muli’s health came under the spotlight and critics were beginning to ask themselves how much longer he could hang on.
In May 1990, Muli was forced to rise in parliament on a point of order to state that he was still the AG. This incident took place following a question by Kandui MP Maurice Makhanu, who had asked in the House who Kenya’s Attorney General was.
Makhanu’s somewhat cheeky question arose due to the fact that Public Works Minister Timothy Mibei had been appointed to perform the duties of the AG in November 1989 when Muli’s poor health saw him leave the country on sick leave. Five months later, in spite of Muli having returned, Mibei’s appointment to act as AG had not been revoked.
The sun was beginning to set on Muli’s reign as AG which at the time was second in longevity to that of Charles Njonjo, who was in office for 15 years.
By the time he left office in 2011, Wako would have served a record-beating 20 years at Sheria House.
Talk about Majimbo constitutional amendment
There was already a lot of talk in parliament about amending the constitution when Wako took office. Thought to be acting as one of President Moi’s trial balloon testers in parliament, the then Planning and National Development Assistant Minister Noor Abdi Ogle suggested that the constitution be changed to allow for the establishment of a Majimbo (federal) system of government.
Ogle, who was also a senior Kanu official, said he was calling for Majimbo in response to unnamed people whom he said did not want to see Kenya remain a united nation. He said in parliament, “There are some government critics who are agitating for political pluralism because they do not want to see us united as one government. If they persist, we may be forced to call for the amendment of the constitution to pave the way for the establishment of a federal government system.”
Ogle’s statement drew several points of order from MPs who wanted to know on what basis he was talking of a move to establish a federal system of government.
Among those who questioned him was nominated MP Ezekiel Barngetuny, who said, “Does the Assistant Minister want to tell us that each district or province should form its own government? Or what is he suggesting?”
Ogle replied, “What I’m saying is this, if we cannot stay united as one nation with one central government, I don’t see any reason why we should not pave the way for the creation of a federal system of government.
“The Constitution may be amended to create room for each community to form its own government, so that we do not have the kind of squabbles created by multi-party advocates who claim to be speaking on behalf of Kenyans.”
Still in the House, Education Assistant Minister Fred Omido, wondered why Ogle wanted to take Kenya back to the Majimbo system of government, which he said was rejected in the 1960s.
At this point, the then Health Minister Mwai Kibaki also rose on a point of order and told the House that Ogle was misleading it by saying there was a time when Kenya had a federal system of government.
“The truth of the matter is, we have never had such a system. And if he’s calling for the establishment of something new, then he should say so. Instead of telling us that we will revert to the federal system, we cannot revert to a system which we have never had, he can only adopt such a system.”
Ogle then apologised to the House, saying: “Some of us have only read of Majimbo. We do not know how it operated. My suggestion here is, if people continue agitating against the government, then we shall amend the constitution so that each community goes its own way.”
Governance pressure from the donors
At about the same time, on 25 and 26 November 1991, Vice President George Saitoti, who was also the country’s Finance Minister, was in Paris meeting with the Consultative Group of donors and multilateral institutions, basically the people who held the country’s purse strings.
Accompanied by planning and national development Minister Zachary Onyonka and the Central Bank of Kenya Governor Eric Kotut, Saitoti was on a vital mission to beg the donors to reduce their chokehold on Kenya’s finances. As well as calling for specific financial and economic reforms, the donors made it clear that there would be no support forthcoming unless there were political reforms.
According to a report in the Kenya Times, “During the meeting, delegates underlined that good governance is a prerequisite for equitable economic development, and would therefore be a major factor in influencing aid allocations. Donors stressed the need for early implementation of political reforms to reinforce the benefits of economic structural change.”
Sure enough, when Kanu’s 3,600-strong special National Delegates Conference met at Kasarani Sports Complex on 3 December 1991, a week after the Paris meeting with donors, the party which had sworn never to allow multi-party democracy did a political about-turn and voted overwhelmingly to repeal Section 2A and to pursue multi-party democracy.
On 4 December 1991, the then French Ambassador to Kenya Pierre Auzimour gave an interesting interview to the Kenya Times newspaper. In 1991, the relationship between France and Kenya was characterised by diplomatic and economic cooperation. France had significant economic interests in Kenya, particularly in sectors like infrastructure, telecommunications, and energy.
The most notable example was the Turkwel Gorge Dam built under the auspices of the Kerio Valley Development Authority between 1986 and 1991 through a partnership of the Kenyan and French governments. France, along with other Western countries, expressed concerns about human rights and governance issues in Kenya, pushing for reforms while balancing its strategic interests in the region.
During the interview, Ambassador Auzimour said, “We talked a little about politics and a lot about the economy. As far as politics is concerned, there is no doubt that a great deal of pressure was put on the Kenyan delegation to link international aid to internal decisions made by the Kenya government.
“I was struck, however, by the fact that certain delegations were still not really aware of the true situation in the country, perhaps because they were composed exclusively of officials from their capitals.
“This allowed Vice President Saitoti to specify things, to mention decisions taken by Kenya over the last few months, such as electoral transparency, independence of the judiciary, fights against corruption, and also indicate very clearly that new steps would be taken without delay in matters of pluralism.
“Today, we can see what he meant by that. The atmosphere has improved hour by hour as discussions have been going on. And I’m very optimistic about the results, especially after the introduction of multi-party politics, which has just been decided on here in Kenya.”
Wako markets the idea of constitutional change in the UK
In January 1992, Amos Wako was dispatched to London where he met with an all-party group on overseas development at the House of Commons.
In keeping with Kenya’s long unwritten tradition of briefing foreign governments on developments in Kenya before informing Kenyans about them, Wako duly informed the group that Kenya had undergone major political changes and reforms as it approached its first multi-party general election, which he promised would be free and fair.
It was at this meeting that Wako hinted at what would soon be known as the Wako Bill. He told the British politicians that amendments to the Presidential and Parliamentary Elections Act were being worked out for presentation to the cabinet.
Wako told them that he was looking into amendments of various acts to give effect to the multi-party system. “I hope to submit the proposed amendments to the cabinet shortly, and if approved, they will be debated by Parliament when it resumes.”
Less than two months later, on 3 March 1992, the Wako Bill was ready and Kenyans, and the world for that matter, waited to see what parliament would decide.
Kanu sticks the boot in
On March 10, the Kanu parliamentary group met under the chairmanship of President Moi and directed the AG to withdraw the Bill which had been gazetted only a week earlier.
The Kanu parliamentary group, or more likely the president, had been spooked by something, probably the fact that if the Bill passed and became law, the imperial presidency as they knew it, would vanish.
There was also the fear that they could not predict how the elections would go. At that time, it was already looking as though Kanu might be decimated at the polls and this new Bill, with its curbs on presidential power, was a step too far.
Most likely, however, the main reason for the withdrawal of the Bill was that it had not convinced the country’s donors to loosen the purse strings. Moi and Kanu probably figured there was no point going so far without reciprocity.
All the political and economic acrobatics – with the repeal of 2A and the promised constitutional changes – had only led to a slight loosening of the purse strings. What few coins were released were often tied to specific conditions related to governance and democratisation and the relationship with the donors continued to be characterised by tension and conditionality.
It is instructive that shortly after this, the so-called tribal clashes began and the ruling party’s group of young hired guns – also known as Youth for Kanu 1992 of YK’92 – was formed.
Speaking of hired guns, the motion to reject the Wako Bill was introduced at the Kanu parliamentary meeting by none other than Planning and National Development Assistant Minister Noor Abdi Ogle. He said that the Bill mentioned the formation of a transitional government, and argued that such a government was not provided for the constitution.
Ogle made it sound to the group as though the Bill’s main aim was to topple the Moi presidency, conveniently ignoring the fact that the Bill had been supported by the cabinet chaired by Moi before it was gazetted.
As a result of Ogle’s scaremongering, the Kanu parliamentary group meeting also resolved that President Moi would hold office until the multi-party election results were announced. Interestingly, that issue had never even arisen.
My opinion is that, if it was a genuine move, the Wako Bill was significant in that it promised to open up the political space. Its shelving meant that Kenya’s deeper structural and institutional issues would continue to plague the political landscape for almost two decades more before the 2010 Constitution, which incorporated some of the ideas in the 1992 Wako Bill, came along.
